Accommodation Subverted: The Future of Work/family Initiatives in a "Me, Inc." World

Abstract

This article considers the viability of mandated employer accommodation of family caregiving in a work culture that prizes employee mobility and independence. Extant accommodation mandates, such as the Americans with Disabilities Act and the Family Medical Leave Act, have been only moderately successful in deconstructing discriminatory work structures that operate to exclude underrepresented workers. Court decisions interpreting those laws frequently invoke equality principles to limit their reach and preserve employer discretion, while decisions favorable to disadvantaged plaintiffs have often occasioned popular backlash. These circumstances call into question the efficacy of accommodation as a vehicle for achieving results-based equality for caregivers. Such difficulties must be analyzed against the development of what I call a “Me, Inc.” work culture, an environment typified by worker assumption of responsibility for training and education, increased employer demand for “extra-role” behavior, significant worker mobility and a corresponding decline in long-term employment relationships. The emerging view of workers as autonomous companies is in direct tension with society’s historical designation of the employer as the party primarily responsible for accommodating the “life-cycle” needs of its workforce. On a practical level, changes in the nature and duration of work relationships mean that employers will have limited ability to absorb costs associated with accommodation, and, more significantly, that any judicial interpretation or popular conception of the employer’s duty to accommodate will be constrained by the expectation of employee self-reliance. The article therefore cautions that expansive efforts to mandate employer accommodation of caregiving risk internalizing the norms they reject and are unlikely to succeed on their own in establishing a wholly new work ethic more inclusive of family caregiving. It proposes instead a preliminary three-part approach to redressing caregiver disadvantage that corresponds to the three pre-existing channels of federal employment regulation: vigorous pursuit of class-based discrimination claims, reinvigoration of collective bargaining, and the creation of a government-administered system of wage replacement that incentivizes employer-initiated programs to assist caregivers.