Jewish World Review June 2, 2003 / 2 Sivan, 5763

Jane R. Eisner

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Never underestimate Chief Justice William H. Rehnquist's ability to surprise


http://www.jewishworldreview.com | (KRT) Imagine a justice of the U.S. Supreme Court declaring that the federal government has the power to enforce a law protecting women from discrimination in the workplace and encouraging men to share in the obligations of caring for family.

The justice supports the law even though it places demands on those who employ more than half the nation's workforce and makes it harder to dismiss workers arbitrarily. And he or she upholds the law's reach even though some colleagues argue it dangerously expands the scope of federal authority over the states.

You're probably thinking this guy in black robes is a blast from the liberal past. Or a character on "West Wing.

'' Or a figment of some feminist's imagination. Never underestimate Chief Justice William H. Rehnquist's ability to surprise.

For it was Rehnquist, that patron saint of states' rights, who wrote Tuesday's majority opinion giving state workers the right to sue their employers in federal court for violating the Family and Medical Leave Act (FMLA) - the first piece of legislation signed into law in 1993 by that president conservatives still love to hate, Bill Clinton.

But Rehnquist said that a long history of gender-based discrimination by state governments justified this "narrowly targeted" measure. Congress intended "to ensure that family-care leave would no longer be stigmatized as an inordinate drain on the workplace caused by female employees, and that employers could not evade leave obligations simply by hiring men," he wrote.

The FMLA can hardly be called progressive, not when compared to the more generous and sensible policies offered to women in the European countries we compete with economically and educationally. It only guarantees workers in medium to large-size companies 12 weeks of unpaid leave.

In Italy - just to mention one enviable example - a woman can take five years unpaid maternity leave after she's already received three years of paid leave.

Overall, public support for American families is woefully inadequate, contributing to high-anxiety over child care, a weak preschool system, and a scandalously high child poverty rate. A bundle of contradictions are flung at the American mother: Stay home and raise the kids if you're married and affluent, work full-time if you're single and poor.

But the social consequences of family-leave policies are more complicated than a superficial sound bite. The go-it-alone directive of American family policy has had one good side effect: A singular trend toward greater equity in the ways mothers and fathers share housework and child-rearing.

This finding comes not from the aforementioned conservative chief justice, but the generally liberal Council on Contemporary Families, in a just-released paper examining family leave policies in the United States, Italy, Germany, France and Japan.

In Europe, women take their paid leave to stay home to care for children, and often don't return to the workforce for many years, if at all. Since American women don't have this luxury, and since couples usually can't afford the loss of one parent's earnings for very long, men and women have to negotiate parental leaves and child care, "making the United States a gender-relations leader in this respect," says the council.

As a consequence, American men put in an average of about 16 hours of housework weekly. Japanese men average only about four.

The council notes another consequence: While the well-paid parental leave policies in Germany may seem idyllic to American moms, those policies "often serve to discourage women from going back to work because women fall so far behind in wages and promotions during leave."

Family policies are, literally, a balancing act. Push the scale in one direction, and the other side may go wildly out of kilter. The Europeans can teach us something about supporting families, curbing poverty, and improving early childhood education. We can teach them about egalitarian parenting.

Maybe the chief justice, our new patron saint of gender equity, would be willing to join in.



Jane R. Eisner is a columnist for Philadelphia Inquirer. Comment by clicking here.

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