Caregivers,Gender,and the Law: An Analysis of Family Responsibility Discrimination Case Outcomes

Abstract

As workers struggle to combine work and family responsibilities, discrimination against workers based on their status as caregivers is on the rise. Although both women and men feel the pinch, caregiver discrimination is particularly damaging for women, because care is intricately tied to gendered norms and expectations. In this article, we analyze caregiver discrimination cases resolved by Canadian Human Rights Tribunals from 1985 through 2016, to explore how work and caregiving clash. We identify issues involved in disputes and the ways gendered expectations about work–life facilitation inform disputes and outcomes. We find that although women are more likely to bring claims and obtain favorable outcomes, the legal interpretation of claims is highly gendered. Women bring claims involving both their presumed status as caregivers and the practical challenges of seeking accommodations for care, whereas men’s claims are largely accommodation based. In adjudicating cases, Tribunals are more likely to see women than men as lacking credibility when making their claims, questioning their competence and legitimacy. In contrast, men struggle to demonstrate the legal basis of work–family interference, failing to convey how seriously work interferes with family responsibilities.

Keywords

care work work/family gender law law &social control

As workers struggle to combine work and family responsibilities in an ever-demanding workplace, discrimination against caregivers is on the rise (Still 2007; Stryker, Reynolds-Stenson, and Frederico 2017; Von Bergen 2008; Williams and Bornstein 2006). According to a recent report, lawsuits involving discrimination against caregivers—also known as family responsibilities discrimination (FRD)—have increased 269 percent over the last decade in the United States (Calvert 2016). In Canada, the average number of cases per year between 2003 and 2013 exceeded the previous decade by more than 1,000%.¹ The COVID-19 crisis has rendered this clash between care and work even more dire. With school and child care closures, families face the impossibility of maintaining work while tending to children and vulnerable relatives—often from their own living rooms—and fear the career price they will pay. Although both women and men feel the pinch, caregiver discrimination is particularly damaging for women, because care is intricately tied to gendered expectations.

In this article, we explore how work and caregiving clash through analysis of legal claims of caregiver discrimination in Canada from 1985 to 2016. We identify issues that give rise to disputes, the theoretical underpinnings of disputes, and the ways gendered norms affect legal resolutions. While considerable research examines claims of sex and pregnancy discrimination (Byron and Roscigno 2014; Hirsh and Cha 2018; Hirsh and Kornrich 2008; Roscigno 2007) and disputes over leave-taking (Albiston 2005, 2010; Albiston and O’Connor 2016), we focus on the broader legal class of “caregiver” or “family responsibilities” discrimination. We argue that because of ideal worker norms and expectations about who is responsible for care, the legal interpretation of claims is highly gendered. We find that although both women and men experience disputes over making accommodations for care, women also experience bias because of their presumed status as primary caregivers and are more likely to have their credibility questioned by judicial decision makers.

Our analysis focuses on caregiving discrimination cases resolved by Canadian Human Rights Tribunals (HRTs). Canada presents an interesting case for exploring caregiver discrimination because, unlike the United States—where there is no federal statute outlawing caregiver discrimination—antidiscrimination law in Canada prohibits employment discrimination based on “family status.” At its core is the notion that workers should not be penalized for fulfilling parent–child caregiving duties. On the employer side, the law requires “reasonable accommodation.” When workplace decisions or policies disadvantage those with caregiving responsibilities, employers are obligated to adjust so that workers can fulfill their work and family responsibilities (Ontario Human Rights Commission 2016). If employers fail to do so, workers can file complaints with Human Rights Commissions (HRC), provincial and federal agencies that investigate and resolve disputes through in-house mediation or conciliation, much like the U.S. Equal Employment Opportunity Commission operates. If parties cannot reach settlements and HRCs think further inquiry is warranted, they refer cases to provincial and federal Tribunals (HRTs) for formal public hearings (Canadian Human Rights Commission 2019). HRTs operate like quasi-courts, making legally binding decisions regarding unlawful discrimination (Canadian Human Rights Tribunal 2019).² Our analysis focuses on Tribunal decisions, providing insight into how caregiver discrimination is understood and adjudicated by quasi-legal bodies.

As institutional approaches to the law demonstrate, exogenous factors, like gender, are especially likely to matter when the law is vague on what constitutes legal compliance and what qualifies as evidence of wrongdoing (e.g., Edelman 1990, 1992; Edelman et al. 2011; Hirsh 2009; Krieger, Best, and Edelman 2015; Stryker, Reynolds-Stenson, and Frederico 2017; Sutton and Dobbin 1996). In Canada, legal doctrine lacks clarity on what constitutes family responsibilities discrimination and what employers must do to accommodate care. For instance, human rights law suggests that employers must “reasonably accommodate” workers’ family obligations insofar as they “seriously interfere” with work (Kotsopoulos 2010). Yet the law fails to define each concept, leaving room for legal, cultural, and gendered interpretation. Given such uncertainty, we argue that Tribunals and judicial decision makers invoke gendered notions of who should prioritize family over work, who is deserving of accommodations, and what forms of evidence are sufficient.

Theoretical Background

Ideal Worker Norms and the Greedy Workplace

In 1974, Lewis Coser described “greedy institutions” as making “total demands on their members” and seeking “undivided loyalty” (1974, 4). More than 40 years later, Coser’s greedy institution still has much in common with the twenty-first-century workplace (Burchielli, Bartram, and Thanacody 2008; Sullivan 2014). Across the occupational hierarchy, workers are expected to manage their duties with minimal interference from family life. For managerial and professional positions, this means regular hours beyond the 40-hour week (Cha 2010; Cha and Weeden 2014; Duxbury, Higgins, and Smart 2011), frequent travel, and checking e-mail 24/7 (Blair-Loy 2009; Duxbury and Higgins 2003; Stone 2007). Among shift and service workers, extended retail and service hours make schedules unpredictable and precarious (Alexander and Haley-Lock 2015; Henly and Lambert 2014; Williams 2006), and they complicate care arrangements (Henly and Lambert 2014; Lambert, Fugiel, and Henly 2014; Pocock 2005; Presser 2005; Strazdins et al. 2006). The prevailing “ideal worker” norm—the assumption that workers can completely devote themselves to their jobs, uninterrupted by childbearing, child rearing, and domestic life—is grossly out of date given the reality of contemporary family life and workers’ expressed commitment to work (see Reid 2015).

Recent societal shifts have intensified this work–family conflict. First, with the revolution in women’s labor force participation, most coupled households now have two adults working full-time, rendering child care and household duties more complicated (Marshall 2009). In Canada, nearly 70 percent of couple families with children had two adults working in 2015, compared with only 36 percent in 1976 (Statistics Canada 2016). Second, with the aging of the Baby Boom generation, many workers are also caring for parents. Approximately 30 percent of Canadians and nearly 20 percent of Americans provide informal elder care (Calvano 2013; Turcotte 2013; U.S. Bureau of Labor Statistics 2013), and many face discrimination for it (Kwak, Ingersoll-Dayton, and Kim 2012; Koerin, Harrigan, and Secret 2008), even when the organization offers flexible work options (Kmec, Huffman, and Penner 2014; Kmec, O’Connor, and Schieman 2014).

The Gendered Nature of Care and Caregiver Discrimination

Although men are shouldering more family responsibilities than they once did, women remain the assumed caregiver of young children, and care remains a defining feature of gendered expectations of behavior. Indeed, as recently as 2010, the U.S. Census Bureau deemed a father staying home with children as a “childcare arrangement” while the reverse—the mother at home while the father worked—was not (Laughlin 2013). Inscribing mothers with “designated” parental status, while relegating dads to the role of babysitter, reinforces a gender ideology that conflates gender and care. Such ideology not only constrains people’s capacity to create equal relationships at home, but also contributes to gender inequality at work as women, especially mothers, are penalized for real or assumed caregiving duties while men are expected to be fully devoted to work (Blair-Loy 2003). In what follows, we consider the gendered nature of two forms of caregiver discrimination: (1) status-based discrimination—or bias (often implicit) based on workers’ perceived status as a caregiver; and (2) accommodation-based discrimination—or employers’ failure to accommodate workers’ actual caregiving duties; and how both play out in legal disputes.

Status-based discrimination and gendered expectations

Discrimination against mothers is among the strongest forms of gender employment discrimination (Bornstein, Williams, and Painter 2012; Ridgeway and Correll 2004). From a status characteristics perspective, motherhood entails widely held cultural expectations such that mothers are judged more strictly—in terms of work performance, competence, commitment, and reliability—than nonmothers and men (Correll, Benard, and Paik 2007; Cuddy, Fiske, and Glick 2004). Correll, Benard, and Paik’s (2007) experimental and audit study showed that mothers received lower competency and commitment ratings, lower suggested salaries, and lower call-back rates for a midlevel marketing position, compared with nonmothers and fathers.³ Similarly, in ethnographic work, Dodson (2013) found that employers cast low-wage mothers as “irresponsible” when they faced conflicts between work and child care; and in their analysis of pregnancy cases, Byron and Roscigno (2014) reported that employers portrayed complainants as not dependable and incompetent—a practice they called “symbolic vilification”—to justify firing them.

For men, parental status is not incompatible with what it means to be a good worker. Indeed, being a “good father” entails being an ideal worker to support the family economically (Orloff 1996; Townsend 2002), even rewarding those who put in long hours (Berdahl and Moon 2013). Thus, activating one’s status as a father does not invite negative bias and may even inflate performance evaluations, as fathers are seen as fulfilling both parental and economic obligations. Indeed, parental status often translates into wage premiums and workplace advantages for fathers (Fuller and Cooke 2018; Glauber 2008; Hodges and Budig 2010; Munsch 2016; Waite and Denier 2015).

As men take on more caregiving, some question whether this premium will hold (Coltrane et al. 2013). The notion of the “egalitarian dad” who participates equally in child rearing is gaining traction, both as a cultural model and an empirical exception to the mom-as-primary-parent norm (Damaske et al. 2014; J. A. Smith 2009). As Cunningham-Parmeter (2013, 256) notes, there are the stay-at-home fathers, single fathers, gay fathers, shared-custody fathers, and fathers in heterosexual couple families committed to sharing equally in parenting (see also Fuller and Cooke 2018; Waite and Denier 2015). As such arrangements become common, fathers who care may experience status-based bias as well.

Nevertheless, to the extent that care remains culturally associated with motherhood and at odds with ideal worker norms, we expect that more women caregivers than men will bring claims of status-based caregiver discrimination. Moreover, from the research on motherhood bias, we know that employers hold mothers to harsher performance, competency, commitment, and reliability standards because of their motherhood status. Thus, in legal disputes, we expect women to be cast as less reliable, competent, and committed, compared with men, and to have their competency and reliability questioned by legal decision makers.

Accommodation-based discrimination and organizational efficiency

Accommodation-based discrimination can occur for both women and men, as both may require workplace accommodations, such as parental leave, scheduling considerations, shift changes, or an afternoon off to attend a school event. Insofar as employers see such accommodations at odds with goals of profit and efficiency (Glass and Fodor 2011; Stryker, Reynolds-Stenson, and Frederico 2017), they may penalize those requiring them. As Byron and Roscigno (2014) found, when faced with an apparent conflict between business goals and employees’ needs for family accommodation, employers responded by elevating business imperatives to an “almost sacred reverence.”

Although employer backlash to accommodation may affect women and men alike, women may seek more accommodations over the course of their careers, because they may require task accommodations during pregnancy, are more likely to take parental leave, and on average, shoulder heavier child rearing obligations (Adams, Heywood, and Miller 2014; O. Smith 2014). However, in Canada, men are entitled to parental leave, and child rearing is becoming more egalitarian. Indeed, Canadian fathers increased their use of parental leave by 167 percent between 2004 and 2012 (Hou, Margolis, and Haan 2017) and increased their child care hours by 25 percent (Houle, Turcotte, and Wendt 2017) from 1986 through 2015, though they still trail mothers. Insofar as women still shoulder a disproportionate share of caregiving, we expect women to bring more claims of accommodation-based discrimination, relative to men.

Still, gendered norms and stereotypes likely impact how employers and legal decision makers interpret accommodation requests. Because caregiving men challenge cultural notions of the ideal typical (male) worker, they may face backlash when requesting accommodations and asserting their legal rights to do so. As Padavic, Ely, and Reid (2019) demonstrate, firms downplay men’s work–family conflict and frame accommodation policies as primarily for women, discouraging men from using them. This plays out, for instance, in parental leave-taking, where gendered norms suggest leave is for mothers, and men who take leave are seen as unnecessarily “choosing” family over work (Dengate 2017; Wayne and Cordeiro 2003). Caregiving fathers can also face harassment (Berdahl and Moon 2013) and earnings penalties (Coltrane et al. 2013), compared with those who adhere to gender-typical norms of care. Based on this literature, we expect employers and legal decision makers to perceive men who bring accommodations claims as counter-normative, devoted to family over work, and hold them to stricter evidentiary standards with respect to what constitutes “necessary” accommodation for care, as compared to women.

Data

We evaluate this argument through an analysis of all caregiver discrimination cases resolved by Canadian HRTs between 1985 and 2016. We use data from the Canadian Legal Information Institute (CanLII), a comprehensive nonprofit search engine providing online access to legal information across more than 200 provincial and federal case law databases in Canada. CanLII covers all decisions from any judicial body in Canada (including Tribunals and courts); decisions are uploaded to the site within two days, and CanLII maintains agreements with judicial bodies to facilitate the information transfer (National Self-Represented Litigants Project 2016). Thus, CanLII is a comprehensive source of all HRT decisions.⁴ We initially identified 500 cases for analysis by searching the CanLII database using key terms: family status, employment, and care.⁵ After removing cases unrelated to employment, duplicates, and in-progress cases, our analytical data set includes 164 final decisions made by HRTs where complainants alleged family responsibilities discrimination.

This constitutes a population of all cases involving caregiving and employment decided by Canadian HRTs from 1985 through 2016. However, it is important to note that Tribunal decisions are one point in the larger dispute adjudication process (Albiston, Edelman, and Milligan 2014; Miller and Sarat 1980; Nielsen and Nelson 2005). We do not capture cases that are abandoned, in process, or settled earlier by Human Rights Commissions. This allows us to isolate judicial outcomes but introduces selectivity insofar as cases that progress to HRT hearings are likely among the most egregious, contentious, or complex. Moreover, our focus on formal legal claims—rather than informal grievances—captures only situations where complainants mobilize their legal rights by filing complaints. As we know from the claims-making literature, the vast majority of grievants either “lump it” or resolve matters informally (Bumiller 1992). Only a small proportion of “justiciable” problems ever produce formal legal resolutions (Sandefur 2008), and complainants of higher socioeconomic status (SES) are more likely to take legal action than lower-SES individuals, generally (Genn and Beinert 1999), and particularly in sex discrimination cases (Roscigno 2019). Thus, our data provide a snapshot of how gender, care, and legal resolutions unfold at a critical point in the resolution process but may focus on especially egregious or complex cases and higher status complainants, relative to all grievances and HRC complaints.

Methods

We conducted a qualitative content analysis of cases to understand the nature of caregiving disputes, how Tribunals interpret workers’ efforts to balance caregiving and employment responsibilities, and the extent to which legal decisions are gendered. As Hsieh and Shannon (2005, 1278) explain, this allows for the interpretation of text “through the systemic classification process of coding and identifying themes or patterns” (see also Zhang and Wildemuth 2009). We approached the data using a directed content analysis: We began with several initial codes based on previous work, which we expanded and honed as we considered cases.

Gender

Because this study focuses on issues of gender and differences in the judicial treatment of men and women, we identified the gender of the complainant using a two-category code.⁶

Occupation

We also coded complainants’ occupations, using North American Industrial Classifications Systems (NAICS) Occupational Codes, to understand the occupational breakdown of cases and as a proxy for complainants’ SES.

Legal Grounds

We recorded two legal grounds of family responsibilities discrimination: “family status” involving care for children, elderly parents, or other family members; and “pregnancy.” Among the family status cases, only three involved care for elderly or other relatives; all others involved care for children.

Issue

We captured the specific employment issue involved in the dispute following administrative/legal records and previous research (Hirsh 2008). The categories include harassment, hiring, promotion, termination, and terms and conditions of employment (including work schedules).

Status vs. Accommodation-Based Discrimination

We distinguished between cases involving status-based bias from disputes over making accommodations for caregiving. We identified status-based cases as involving employer discrimination stemming from the worker’s presumed status as caregiver, such as being terminated after announcing a pregnancy or being denied a promotion because of the assumption that one could not handle the required travel. We identified accommodation cases as involving disputes over actual requests for specific accommodations, such as scheduling, overtime, arrival/departure times, and workload.

Case Outcome

We coded six possible case outcomes, following a continuum, with 1 being the most favorable to the complainant and 6 the least: (1) “Complainant favorable with benefits” are favorable rulings for the complainants, and complainants receive monetary awards or employment benefits, such as a promotion, reinstatement, or desired accommodation; (2) “complainant favorable with no benefits” are favorable rulings for the complainant but without monetary or employment benefits awarded; (3) “deferral or appeal” are cases where no decisions were made (due deferrals or appeals) and thus are deemed “neutral” to the complainant; (4) “administrative dismissal” are cases dismissed for an administrative reason (e.g., a missed hearing, deadline, or documentation); (5) “dismissal due to not meeting the legal standard” entail rulings that claims and evidence do not meet the legal standard for family status discrimination; and (6) “dismissal due to evidence not compelling” are cases where the claim meets the legal standard but the evidence or testimony is not deemed reliable or compelling. Conceptualizing case outcomes in this manner allows us to capture outcomes in more detail than a dichotomous measure of favorable/unfavorable and differentiate among cases dismissed for various reasons.

Results

Legal Grounds and Issues

Figure 1 shows the breakdown of cases by legal grounds and gender. As expected, women bring the majority of cases. Of the 164 cases, 120 (73 percent) were brought by women while 44 (27 percent) were brought by men. Women’s cases are split between discrimination on the grounds of family status (most involve caring for children) and pregnancy. Men can also bring pregnancy cases, because they may encounter bias following the announcement of a partner’s pregnancy or plans to become pregnant, when accompanying partners to medical appointments, or for leave-taking during or after a partner’s pregnancy. However, our data show only one such claim.⁷ More typically, men report these forms of bias—as well as discrimination involving broader parental obligations—as family status claims. Although this gender discrepancy in pregnancy claims complicates our comparison of women’s and men’s cases, we analyze pregnancy and family status cases together because women and men may experience similar forms of bias—such as backlash for attending medical appointments or for leave-taking—but report them differently, with women reporting as pregnancy and men reporting as family status. Indeed, many pregnancy complaints by women can also be filed under family status (Canadian Human Rights Commission 2020).

Figure 1:

Number of Complaints by Legal Grounds and Gender

Turning to employment issues, Figure 2 shows that termination cases are most common (49 percent), followed by terms and conditions (41 percent). Promotion (6.1 percent), harassment (2.4 percent), and hiring (1.2 percent) are less common. For women, termination cases are the most frequent (56 percent), which is consistent with research on sex discrimination complaints in the United States (Hirsh 2008; Roscigno 2007, 61), whereas terms and conditions account for one-third. For men, disputes over terms and conditions constitute the majority of complaints (64 percent), whereas termination accounts for about one-third (27 percent).

Figure 2:

Number of Complaints by Case Issue and Gender

Despite the tendency for higher status actors to more frequently seek legal solutions to their problems (Sandefur 2008), our data include workers from across the occupational spectrum. Examining the occupational breakdown of complainants (see Appendix A), retail trade is the most common job for both women (18 percent) and men (20 percent); these shares are comparable to the overall proportion of retail workers in the Canadian workforce (17 percent). For women, work in health care and social services is second (16 percent), followed by professional, scientific, and technical occupations (12 percent) and administrative support (10 percent). Behind retail, men are drawn from public administration (18 percent), manufacturing (13 percent), and health and social services (13 percent). The concentration of men in manufacturing, relative to women’s representation in administrative support, belies familiar patterns of occupational sex segregation.

Status-Based vs. Accommodation Discrimination

To better understand the nature of disputes, we assessed cases based on whether they involved status-based discrimination or accommodations for caregiving. We expect status-based discrimination to be more common for women and mothers, relative to men and fathers, because cultural notions of what constitutes an ideal worker are incompatible with the notion of the devoted mother yet consistent with the father-as-breadwinner norm. Indeed, as shown in Figure 3, of the 66 cases of status-based discrimination, 62 (94 percent) are brought by women.

Figure 3:

Number of Complaints by Nature of Discrimination and Gender

Many of these cases involve instances where women’s status as mothers is rendered salient with the announcement of pregnancy. For instance, in Johnston v. Poloskey, the complainant worked on-call for a coffee shop. When she informed her employers of her pregnancy, they stopped scheduling her for shifts. After an extended period without work, she was terminated. In other cases, women claimed they were subject to different performance standards because of their motherhood status. In Belhamissi v. Cecil B. Makeup Studios, Ms. Belhamissi alleged she was refused training and scheduled for fewer hours because she was a mother. She argued that her employer sought to create a “young” team and preferred workers without parental duties. The employer maintained that training was offered to all employees and that Ms. Belhamissi did not often take advantage of training opportunities, and that when she did, she did not pay attention. Her employer also cited job performance as an ongoing problem. As status characteristics theory would suggest, bias kicks in when women’s status as caregivers is made salient and invites negative evaluations of performance and commitment.

Men can also experience status-based discrimination on account of fatherhood, but such cases were rare. Only four (6 percent) cases of status-based discrimination were brought by men. In one, a separated father with joint custody of his children argued that he was harassed, scrutinized for his work absences, and ultimately fired because he prioritized caregiving for his three children. This case is reminiscent of Cunningham-Parmeter’s (2013) argument that egalitarian fathers or those with extensive caregiving duties due to custody arrangements will be harshly penalized for their counter-normative care arrangements, and Berdahl and Moon’s (2013) evidence of harassment against caregiving fathers. In another, an expecting father was offered a job with a new company, yet the offer was revoked after he revealed his spouse’s pregnancy.

Cases involving accommodation—including disputes over schedules, overtime, travel, and leave—are more equally distributed by gender. As shown in Figure 3, of the cases involving accommodation, 55 (61 percent) were brought by women while 35 (39 percent) were brought by men. Women’s share of accommodation cases is analogous to national data on parents’ participation in caregiving, as recent breakdowns show that mothers provide 65 percent of child care (Houle, Turcotte, and Wendt 2017, chart 2). For men, clashes over accommodations constitute the vast majority (83 percent) of caregiver claims. For instance, in Loranger v. Customs and Immigration Union, a father requested an exemption from work-related travel in anticipation of the birth of his second child. His employer denied the request, compelling him to travel at a time that interfered with his child’s birth.

Case Outcomes

Table 1 shows significant differences in the six types of case outcomes by gender (chi-square = 16.91, p < 0.01). Overall, women’s claims are more often upheld by HRTs. Women receive favorable outcomes in 54 percent of cases relative to 42 percent for men. This is driven by disparities in favorable outcomes with benefits, which constitute 36 percent of women’s outcomes but only 14 percent of men’s. Men experience relatively more favorable outcomes without benefits (28 percent) relative to women (24 percent).

Table 1:

Case Outcomes by Gender

Outcome	Gender,n (%)		Total,n (%)
	Female	Male
Favorable outcomes
Complainant favorable with benefits	36 (30)	6 (13.95)	42 (25.77)
Complainant favorable without benefits	29 (24.17)	12 (27.91)	41 (25.15)
Neutral outcomes
Appealed/deferred	5 (4.17)	3 (6.98)	8 (4.91)
Dismissals
Dismissed: administrative	8 (6.67)	4 (9.3)	12 (7.36)
Evidence: not legal standard	15 (12.5)	15 (34.88)	30 (18.4)
Evidence: not compelling	27 (22.5)	3 (6.98)	30 (18.4)
Total	120 (100)	43 (100)	163 (100)

Pearson chi-square = 16.91; p < 0.01.

Turning to cases that are dismissed reveals a gendered pattern in how complainants’ evidence fares. Although both women and men experience administrative dismissals in relatively equal proportions (7 percent for women vs. 9 percent for men), men’s cases are more likely to be dismissed because they do not meet legal standards, whereas women’s cases are more likely to be dismissed because of uncompelling evidence.

Legally, to find cause of discrimination, discriminatory behavior or actions must be the “most probable” explanation for the actions taken by the employer. This is challenging for complainants because they must show a clear connection between their caregiver duties, their request for accommodation (whether approved or denied), and employers’ discriminatory treatment. For men, failing to meet this legal standard was by far the most common reason for dismissal, occurring in 60 percent of unfavorable cases. For example, in Monck v. Ford Motor Company of Canada, the complainant argued that he was terminated because he required time off to care for his terminally ill wife. However, the Tribunal dismissed his claim, insisting that he did not present convincing evidence that he had requested time off to accommodate care and that his employer had refused his request, both of which are required under the law. Similarly, in Falardeau v. Ferguson Moving, the complainant alleged discrimination because he was terminated after refusing to work overtime due to his child care obligations. The case was dismissed due to failure to meet legal standards. The employer was aware that Mr. Falardeau had child care obligations but assumed that because he had worked overtime in the past, he would be able to manage additional overtime shifts (presumably by finding alternative care for his children). The Tribunal concluded that Mr. Falardeau had not established that he was singularly responsible for child care. That is, the legal decision centered on whether Mr. Falardeau had sufficiently demonstrated that he (rather than a partner, spouse, family member, or caregiver) must be available for care duties during the hours of overtime shifts. In both cases, the complainants did not adequately make the link between their needs as caregivers (e.g., time off, exemption from overtime) and the actions of their employers.

Among women, not meeting the legal standard accounted for only 27 percent of unsuccessful cases. As with men, claims were dismissed because women failed to meet the standard that one’s caregiver responsibility was the most probable cause of employers’ actions. For instance, in Bartuk v. Vancouver Coastal Health Authority, the complainant argued that Vancouver Coastal did not accommodate her caregiving demands. Her son was diagnosed with attention deficit/hyperactivity disorder and dealing with his needs occasionally contributed to her being late for work. The employer argued that they attempted to accommodate her late arrival, but that she had never requested a formal accommodation due to her son’s special care needs. The Tribunal sided with the employer.

More commonly, women’s cases were dismissed for lack of “compelling” evidence or not providing “reliable” accounts of discrimination. Dismissals on these grounds account for almost half (49 percent) of unsuccessful cases for women but only 12 percent of men’s dismissals. In the case of Blanchette v. Oakville, when Ms. Blanchette became pregnant, she requested a modification of her duties as a municipal firefighter as her due date approached. The municipality offered a switch to desk duties, but during a shift when she did not have child care for her older child. Because of the time-sensitive nature of the issue, Ms. Blanchette requested an expedited hearing, which was rejected. She then requested an interim remedy, which was also denied. The Tribunal did not find her evidence sufficiently compelling. The accommodation that her employer offered—desk work, but during a shift that conflicted with caregiving—was deemed sufficient, and the burden was on Blanchette to figure out care for her child.

Tribunals also elevated employers’ business or performance concerns over women’s evidence of bias. In Khan v. 820302 Ontario, the complainant was terminated when she requested time off to care for her child in the hospital.⁸ The employer argued that he had already planned to fire Khan for performance-related reasons. A witness provided testimony that Khan’s request for caregiving accommodation was the “final straw” and thus contributed to her termination. However, the Tribunal considered the witness’s account as “opinion” and hence irrelevant and sided with the employer. Similarly, in Elliot v. Auto Stop Car Wash, Ms. Elliot was fired two weeks after revealing her pregnancy. However, the coincidence of her pregnancy announcement and firing was deemed insufficient evidence as cause of termination. The Tribunal believed the employer’s position that the firing was due to performance issues, despite Elliot’s recent performance bonus. In both cases, employers explained their actions in terms of women’s poor work performance and Tribunals affirmed these rationales.

Given that women and men differ in the qualitative nature of caregiver discrimination they experience, with men experiencing largely accommodation-based discrimination and women subject to both accommodation-based discrimination and status-based bias, it is possible that the different evidentiary standards shown in Table 1 might reflect difficulties in arguing accommodation versus status-based cases. That is, it may be especially difficult for complainants of status-based cases (who are largely women) to provide compelling evidence of discrimination, as these often involve implicit bias and more insidious forms of discrimination.

Table 2 provides a breakdown of case outcomes by status-based, accommodation-based, and other claims, showing statistically significant differences in outcomes (chi-square = 27.06, p < 0.01). Although roughly half of both status-based cases (52 percent) and accommodation cases (51 percent) result in favorable rulings for complainants, status-based cases are more frequently accompanied by benefits (38%) than are accommodation-based claims (19%). This partially accounts for women’s greater likelihood of achieving benefits.

Table 2:

Case Outcomes by Nature of Discrimination

Outcome	Status,n (%)	Accommodation,n (%)	Other,n (%)	Total,n (%)
Complainant favorable with benefits	25 (37.88)	17 (19.1)	0 (0)	42 (26.25)
Complainant favorable: no benefits	9 (13.64)	28 (31.46)	2 (40)	39 (24.38)
Appeal/deferred	2 (3.03)	6 (6.74)	0 (0)	8 (5)
Dismissed: administrative	3 (4.55)	8 (8.99)	1 (20)	12 (7.5)
Evidence: not legal standard	7 (10.61)	21 (23.6)	1 (20)	29 (18.12)
Evidence: not compelling	20 (30.3)	9 (10.11)	1 (20)	30 (18.75)
Total	66 (100)	89 (100)	5 (100)	160 (100)

Pearson chi-square = 27.06; p < .01.

Turning to dismissals, we see differences in how evidence is evaluated in status and accommodation cases. Discrimination cases involving status-based bias—which are brought predominantly by women—are largely dismissed because of a lack of compelling evidence. Indeed, for status-based cases, 30 percent of all case outcomes lack compelling evidence, while only 10 percent are dismissed for failing to meet legal standards. Among accommodation cases, it is the reverse: Only 10 percent of cases are dismissed because of a lack of compelling evidence while more than double that share (24 percent) fail to meet legal standards. Thus, cases involving status-based discrimination are unsuccessful owing to a lack of credible evidence, whereas accommodation cases fail because they do not meet legal standards.

These differences could reflect the fact that women bring the majority of status-based cases whereas accommodation cases are split more equally by gender. Examining case outcomes by the nature of discrimination and gender (not shown), we find that women have similar rates of favorable outcomes (with and without benefits) for accommodation (56 percent) and status/implicit bias (53 percent) cases. However, they are more likely to have their credibility questioned in status cases. Roughly one-third (32 percent) of women’s status-based cases result in dismissals owing to a lack of compelling evidence versus only 13 percent of women’s accommodation cases.⁹ Thus, Tribunals are especially reluctant to find women’s accounts of discrimination reliable in status-based cases.

Discussion

Consistent with our expectations, we find gender differences in the nature and outcome of legal disputes over caregiving. Three times as many women as men bring claims of family responsibilities discrimination to Canadian HRTs. Women’s cases are split evenly between discrimination based on their status as caregivers and discrimination due to making accommodations for care, whereas men primarily experience accommodation-based discrimination and, unlike women, are not subject to status-based bias.

This gender divide in status-based discrimination is rooted in cultural notions of the ideal worker and typical caregiver. Whereas the prevailing view of the male breadwinner is compatible with men’s family responsibilities, the cultural view of the “attached” and “devoted” mother or female caregiver conflicts with work. Indeed, many of women’s status-based claims occurred when they announced pregnancies. The transition to motherhood created an “opportunity structure for discrimination” for employers (Petersen and Saporta 2004) and invited status-based bias. For men, announcing a partner’s pregnancy or moving from the status of man to “father” is not necessarily a negative change in the eyes of employers because fatherhood remains culturally compatible with being a good worker and thus does not evoke status-based discrimination. In short, women caregivers experience a status conflict on the job that is largely irrelevant for male caregivers.

The result is that women are doubly disadvantaged: first on account of their caregiver status, and second as they struggle to make accommodations for actual caregiving responsibilities. Men, on the other hand, experience disadvantage only in terms of clashes over accommodations. Women caregivers experience what Best and colleagues (2011) call “demographic intersectionality”—the overlapping of two or more demographic categories—in this case, gender and caregiver status. As social psychologists observe, stereotypes and expectations about each social-demographic category can take on new meaning when combined (Bodenhausen and Richeson 2010). As Best et al. (2011) report in their study of U.S. discrimination lawsuits, plaintiffs who bring claims from a place of demographic intersectionality experience “multiple disadvantages” and dramatically reduced chances of prevailing. Similarly, our results indicate that female caregivers experience the double disadvantage of occupying two subordinate social statuses.

Turning to the outcomes of claims, we find that women secure more favorable outcomes than men. This suggests that Tribunals do recognize and validate the hardship of shouldering both family and workplace responsibilities, as many women do. However, in being more sympathetic to women’s claims, Tribunals risk reifying women’s status as primary caregivers, discounting men’s needs for work–family accommodations, and leaving what Padavic, Ely, and Reid (2019) call the dominant “work–family narrative”—that women’s family obligations conflict with work but men’s do not—largely intact.

When analyzing cases that are dismissed, we see prominent gender patterns in rationales. Women were three times as likely as men to have their cases dismissed due to lack of compelling or reliable evidence, suggesting that women caregivers experience the familiar “competency” and “reliability” penalty when making legal claims, especially those involving status-based bias. Moreover, in cases where women’s evidence was questioned, Tribunals tended to accept employers’ accounts of complainants’ poor work performance or commitment. Thus, when forced to adjudicate between women’s accounts of discrimination and employers’ accounts of poor work performance, Tribunals questioned women’s credibility while elevating employers’ concerns for efficiency. These findings echo Byron and Roscigno’s (2014) observation that employers vilified pregnant employees as “bad workers” while elevating business logics.

Finally, we found that men faced more than twice as many dismissals for failing to meet legal standards, compared with women. This suggests that employers and Tribunals may see men’s work–care conflicts as counternormative and, as a result, fail to link employers’ actions to men’s family responsibilities. Fathers were often cast as “secondary caregivers”—breadwinners first, caregivers second. This resonates with research on men’s use of family–work accommodation policies, as male caregivers are reluctant to raise issues of work–family interference and request accommodations (Brescoll, Glass, and Sedlovskaya 2013; Dengate 2017; Kelly et al. 2010; Williams, Blair-Loy, and Berdahl 2013), and employers rarely see accommodations as necessary for men (McKay and Doucet 2010; Padavic, Ely, and Reid 2019). Both lead men to “care in secret” (Williams, Blair-Loy, and Berdahl 2013) to avoid penalties. Indeed, many men in our data failed to meet the legal standard precisely because they did not identify family responsibilities as the reason for requesting accommodations. Establishing a legal link between work demands and care duties is thus more challenging for men. As a result, Tribunals fail to recognize the “serious interference” work poses for men’s family responsibilities and may discourage men from exercising their caregiver rights.

While our study identifies the gendered nature of caregiver discrimination, its limitations beg future research. First, we do not observe instances where caregivers do not take legal action or cases resolved before reaching HRTs. Thus, we cannot generalize our findings to all points of dispute resolution (Miller and Sarat 1980; Nielsen and Nelson 2005) nor to all workers who experience caregiver bias, especially those of lower SES who are unlikely to seek legal redress (see Sandefur 2007, 2008). Additional research using varied methods—including surveys and interviews of workers, caregivers, and employers, and case analyses at other stages of legal resolution—is needed to fully understand caregiver grievances. Second, our analysis focuses on gender differences in caregiver bias, yet discrimination can be the product of multiple status vulnerabilities, including race, age, sexual orientation, and occupational status (Best et al. 2011; Hirsh 2014; Roscigno 2019). Our small data set prevents analysis of how overlapping vulnerabilities may create a pretense for caregiver bias, though such work is needed. Finally, we focus on a specific national context. Canada presents an interesting case given its history of legal protections, yet additional research is needed to assess the extent to which our conclusions may generalize to other settings, including those with explicit laws against caregiver discrimination (i.e., Australia) and where caregiver protections are uneven (i.e., United States).

Conclusion

Drawing on normative conceptions of the ideal worker, status characteristics theory, and assumptions about organizational efficiency, we have shown how women and men differentially experience caregiver discrimination at work and under the law. We find that work and family obligations clash for both women and men, leading to legal disputes over the extent to which employers must accommodate workers’ family responsibilities. However, women also carry the stigma of caregiver as a (negative) status characteristic. When women’s status as caregiver becomes salient, they encounter bias, presumably on account of the cultural assumption that caregiving is incompatible with their work responsibilities and competencies. Note that this is an assumption based on cultural imagery of a fully devoted female caregiver (or mother) rather than her actual family responsibilities. Thus, women experience the practical challenge of combining work and family as well as “symbolic vilification” (Byron and Roscigno 2014) of their status as caregivers.

Though women and men both bring claims over making accommodations for care, men faced more difficulty in meeting the legal standard for caregiver discrimination, and Tribunals failed to see a link between their family responsibilities and work accommodations. This gendered interpretation of who does care and who requires accommodation for it both reifies gendered norms and (re)inscribes such norms into legal, economic, and familial institutions. This has tremendous consequences for gender equity at work and home, because it reproduces the expectation that women will carry the caregiving load and take the hit at work. We are left with a paradox of sorts: Tribunals and other legal bodies should recognize women’s (unequal) caregiving burden and affirm their claims, but in doing so, they can reify the norm of women as primary caregivers and reinforce gender hierarchies at home, at work, and under the law.

This paradox highlights the need for broader initiatives to ameliorate conflicts and the gendered consequences of them, especially in the midst and wake of the COVID-19 crisis, as families struggle to work, care for children, and check on elderly relatives against a backdrop of restricted school, child care, and community supports. Stronger statutory entitlements for leave-taking, rights to flexibility, to refuse overtime, to family-compatible schedules, and to affordable care are desperately needed now more than ever. Most provinces have temporarily expanded entitlements to job-protected leaves during the COVID-19 pandemic as schools and child care centers shut, but the need for such leaves will continue well beyond the pandemic. Such entitlements should be available to workers at all occupational levels, and not just to mothers or parents, to avoid magnifying status-based discrimination and reifying gendered expectations of behavior. Better work–life policies and legal protections will also help workers by reducing the need to negotiate individual accommodations and minimize disputes over them. This may be particularly critical for men, who are especially reluctant to request accommodations.

Policy initiatives that make it easier for workers to combine family responsibilities, although necessary, will not directly address status-based bias. Nonetheless, they may have salutary spillover effects to the extent that they decrease perceived differences in the work performance of caregivers and others by creating greater flexibility for everyone (see Fuller and Hirsh 2019). Ultimately, to alleviate the stigma of caregiver as a (negative) status characteristic—which clearly disadvantages women—we also need to alter the cultural imagery of the gendered caregiver, the gendered worker, and the gendered organization.

Footnotes

Appendix

Appendix A:

Breakdown of Complainants’ Occupation, by Gender

	Family Responsibilities Discrimination Cases, N=164
NAICS Occupational Code	Female (%)	Male (%)	Total (%)
Retail trade	18	20	18
Health care and social assistance	16	13	15
Professional, scientific, and technical services	12	10	11
Public administration	7	18	10
Administrative and support	10	0	7
Other services (except public administration)	9	3	7
Accommodation and food services	8	3	7
Transportation and warehousing	6	8	6
Educational services	6	5	5
Manufacturing	2	13	5
Real estate and rental and leasing	4	0	3
Utilities	1	3	1
Wholesale trade	1	3	1
Mining, quarrying, and oil and gas extraction	0	3	1
Construction	0	3	1
Finance and insurance	1	0	1
Total	100	100	100

ORCID iD

C. Elizabeth Hirsh

Notes

C. Elizabeth Hirsh is Associate Professor of Sociology and Canada Research Chair of Law and Inequality at the University of British Columbia. She studies employment discrimination, legal claims-making, and how law and policy can promote gender and racial equity at work.

Christina Treleaven is a Ph.D. Candidate in Sociology at the University of British Columbia. Her research focuses on work, gender, inequality, and eldercare. She is currently completing her dissertation project, which examines how people balance work and informal family support.

Sylvia Fuller is Professor of Sociology at the University of British Columbia. Her research centers on understanding how labor market inequalities develop and erode and the implications of changing employment relations and social policy for people’s economic security and mobility.

References

Adams

Scott J.

Heywood

John S.

Miller

Laurie A.

2014. Caregivers, firm policies and gender discrimination claims. Review of Economics of the Household 12 (2): 359–77.

Albiston

Catherine

. 2005. Bargaining in the shadow of social institutions: Competing discourses and social change in workplace mobilization of civil rights. Law & Society Review 39 (1): 11–50.

Albiston

Catherine

O’Connor

Lindsey Trimble

. 2016. Just leave. Harvard Women’s Law Journal 39: 1.

Albiston

Catherine R.

2010. Institutional inequality and the mobilization of the Family and Medical Leave Act: Rights on leave. New York: Cambridge University Press.

Albiston

Catherine R.

Edelman

Lauren B.

Milligan

Joy

. 2014. The dispute tree and the legal forest. Annual Review of Law and Social Science 10:105–31.

Alexander

Charlotte

Haley-Lock

Anna

2015. Underwork, Work-hour insecurity and a new approach to wage and hour regulation. Industrial Relations 54 (4): 695-716.

Berdahl

Jennifer L.

Moon

Sue H.

2013. Workplace mistreatment of middle class workers based on sex, parenthood, and caregiving. Journal of Social Issues 69 (2): 341–66.

Best

Rachel Kahn

Edelman

Lauren B.

Krieger

Linda Hamilton

Eliason

Scott R.

2011. Multiple disadvantages: An empirical test of intersectionality theory in EEO litigation. Law & Society Review 45 (4): 991–1025.

Blair-Loy

Mary

. 2003. Competing devotions: Career and family among women executives. Cambridge, MA: Harvard University Press.

10.

Blair-Loy

Mary

. 2009. Work without end? Scheduling flexibility and work-to-family conflict among stockbrokers. Work and Occupations 36 (4): 279–317.

11.

Bodenhausen

Galen V.

Richeson

Jennifer A.

2010. Prejudice, stereotyping, and discrimination. In Advanced social psychology: The state of the science, edited by Baumeister

Roy F.

Finkel

Eli J.

New York: Oxford University Press.

12.

Bornstein

Stephanie

Williams

Joan

Painter

Genevieve

. 2012. Discrimination against mothers is the strongest form of workplace gender discrimination: Lessons from U.S. Caregiver Discrimination Law. International Journal of Comparative Labour Law and Industrial Relations 28 (1): 45–62.

13.

Brescoll

Victoria L.

Glass

Jennifer

Sedlovskaya

Alexandra

. 2013. Ask and ye shall receive? The dynamics of employer-provided flexible work options and the need for public policy. Journal of Social Issues 69 (2): 367–88.

14.

Bumiller

Kristin

. 1992. The civil rights society: The social construction of victims. Baltimore, MD: Johns Hopkins University Press.

15.

Burchielli

Rosaria

Bartram

Timothy

Thanacoody

Rani

. 2008. Work-family balance or greedy organizations? Industrial Relations 63 (1): 108–33.

16.

Byron

Reginald A.

Roscigno

Vincent J.

2014. Relational power, legitimation, and pregnancy discrimination. Gender & Society 28 (3): 435–62.

17.

Calvano

Lisa

. 2013. Tug of war: Caring for our elders while remaining productive at work. Academy of Management Perspectives 27 (3): 204–18.

18.

Calvert

Cynthia Thomas

. 2016. Caregivers in the workplace: Family responsibilites discrimination litigation update. San Francisco, CA: UC Hastings WorkLife Law Center. https://worklifelaw.org/publications/Caregivers-in-the-Workplace-FRD-update-2016.pdf.

19.

Canadian Human Rights Commission. 2019. Complaints: About the process. https://www.chrc-ccdp.gc.ca/eng/content/about-process.

20.

Canadian Human Rights Commission. 2020. Pregnancy & human rights in the workplace—Policy and best practices. https://www.chrc-ccdp.gc.ca/eng/content/policy-and-best-practices-page-1.

21.

Canadian Human Rights Tribunal. 2019. About the tribunal. https://www.chrt-tcdp.gc.ca/about/about-the-tribunal-en.html.

22.

Canadian Legal Information Institute. 2019. Primary law databases. https://www.canlii.org/en/databases.html.

23.

Cha

Youngjoo

. 2010. Reinforcing separate spheres: The effect of spousal overwork on men’s and women’s employment in dual-earner households. American Sociological Review 75 (2): 303–29.

24.

Cha

Youngjoo

Weeden

Kim A.

2014. Overwork and the slow convergence in the gender gap in wages. American Sociological Review 79 (3): 457–84.

25.

Coltrane

Scott

Miller

Elizabeth C.

DeHaan

Tracy

Stewart

Lauren

. 2013. Fathers and the flexibility stigma. Journal of Social Issues 69 (2): 279–302.

26.

Correll

Shelley J.

Benard

Stephen

Paik

. 2007. Getting a job: Is there a motherhood penalty? American Journal of Sociology 112 (5): 1297–338.

27.

Coser

Lewis A.

1974. Greedy institutions: Patterns of undivided commitment. New York: Free Press.

28.

Cuddy

Amy J. C.

Fiske

Susan T.

Glick

Peter

. 2004. When professionals become mothers, warmth does not cut the ice. Journal of Social Issues 60 (4): 701–18.

29.

Cunningham-Parmeter

Keith

. 2013. Men at work, fathers at home: Uncovering the masculine face of caregiver discrimination. Columbia Journal of Gender and Law 24 (3): 253–301.

30.

Damaske

Sarah

Ecklund

Elaine Howard

Lincoln

Anne E.

White

Virginia Johnston

. 2014. Male scientists’ competing devotions to work and family: Changing norms in a male-dominated profession. Work and Occupations 41 (4): 477–507.

31.

Dengate

Jennifer L.

2017. A year off: How mothers challenge and conform to gender on maternity leave. PhD diss., University of British Columbia, Vancouver.

32.

Dodson

Lisa

. 2013. Stereotyping low-wage mothers who have work and family conflicts. Journal of Social Issues 69 (2): 257–78.

33.

Duxbury

Linda

Higgins

Christopher A.

2003. Work–life conflict in Canada in the New Millennium—A status report. https://pdfs.semanticscholar.org/66c3/e77e9bb6d4b89bdc2783f6b39d06218d0364.pdf?_ga=2.209678682.931255338.1593511439-582756846.1593511439.

34.

Duxbury

Higgins

Christopher

Smart

Rob

. 2011. Elder care and the impact of caregiver strain on the health of employed caregivers. Work 40 (1): 29–40.

35.

Edelman

Lauren B.

1990. Legal environments and organizational governance: The expansion of due process in the American workplace. American Journal of Sociology 95 (6): 1401–40.

36.

Edelman

Lauren B.

1992. Legal ambiguity and symbolic structures: Organizational mediation of civil rights law. American Journal of Sociology 97 (6): 1531–76.

37.

Edelman

Lauren B.

Krieger

Linda H.

Eliason

Scott R.

Albiston

Catherine R.

Mellema

Virginia

. 2011. When organizations rule: Judicial deference to institutionalized employment structures. American Journal of Sociology 117 (3): 888–954.

38.

Fuller

Sylvia

Cooke

Lynn Prince

. 2018. Workplace variation in fatherhood wage premiums: Do formalization and performance pay matter? Work, Employment and Society 32 (4): 768–88.

39.

Fuller

Sylvia

Hirsh

C. Elizabeth

. 2019. “Family-friendly” jobs and motherhood pay penalties: The impact of flexible work arrangements across the educational spectrum. Work and Occupations 46 (1): 3–44.

40.

Genn

Hazel

Beinart

Sarah

. 1999. Paths to justice: What people do and think about going to law. Portland, OR: Hart.

41.

Glass

Christy

Fodor

Eva

. 2011. Public maternalism goes to market: Recruitment, hiring, and promotion in postsocialist Hungary. Gender & Society 25 (1): 5–26.

42.

Glauber

Rebecca

. 2008. Race and gender in families and at work: The fatherhood wage premium. Gender & Society 22 (1): 8–30.

43.

Henly

Julia R.

Lambert

Susan J.

2014. Unpredictable work timing in retail jobs: Implications for employee work–life conflict. ILR Review 67 (3): 986–1016.

44.

Hirsh

C. Elizabeth

. 2008. Settling for less? Organizational determinants of discrimination-charge outcomes. Law & Society Review 42 (2): 239–74.

45.

Hirsh

C. Elizabeth

. 2009. The strength of weak enforcement: The impact of discrimination charges, legal environments, and organizational conditions on workplace segregation. American Sociological Review 74 (2): 245–71.

46.

Hirsh

C. Elizabeth

. 2014. Beyond treatment and impact: A context-oriented approach to employment discrimination. American Behavioral Scientist 58 (2): 256–73.

47.

Hirsh

C. Elizabeth

Kornrich

Sabino

. 2008. The context of discrimination: Workplace conditions, institutional environments, and sex and race discrimination charges. American Journal of Sociology 113 (5): 1394–432.

48.

Hirsh

Elizabeth

Cha

Youngjoo

. 2018. For law and markets: Employment discrimination lawsuits, market performance, and managerial diversity. American Journal of Sociology 123 (4): 1117–60.

49.

Hodges

Melissa J.

Budig

Michelle J.

2010. Who gets the daddy bonus? Organizational hegemonic masculinity and the impact of fatherhood on earnings. Gender & Society 24 (6): 717–45.

50.

Hou

Feng

Margolis

Rachel

Haan

Michael

. 2017. Estimating parental leave in Canada using administrative data. Analytical Studies: Methods and References, Statistics Canada. https://www150.statcan.gc.ca/n1/pub/11-633-x/11-633-x2017009-eng.htm.

51.

Houle

Patricia

Turcotte

Martin

Wendt

Michael

. 2017. Changes in parents’ participation in domestic tasks and care for children, from 1986 to 2015. Spotlight on Canadians: Results from the General Social Survey, Statistics Canada. http://tld-documents.llnassets.com.s3.amazonaws.com/0004000/4834/statistics%20canada%20general%20social%20survey.pdf.

52.

Hsieh

Hsiu-Fang

Shannon

Sarah E.

2005. Three approaches to qualitative content analysis. Qualitative Health Research 15 (9): 1277–88.

53.

Kelly

Erin L.

Ammons

Samantha K.

Chermack

Kelly

Moen

Phyllis

. 2010. Gendered challenge, gendered response: Confronting the ideal worker norm in a white-collar organization. Gender & Society 24 (3): 281–303.

54.

Kmec

Julie A.

Huffman

Matt L.

Penner

Andrew M.

2014. Being a parent or having a parent? The perceived employability of men and women who take employment leave. American Behavioral Scientist 58 (3): 453–72.

55.

Kmec

Julie A.

O’Connor

Lindsey Trimble

Schieman

Scott

. 2014. Not ideal: The association between working anything but full time and perceived unfair treatment. Work and Occupations 41 (1): 63–85.

56.

Koerin

Beverly B.

Harrigan

Marcia P.

Secret

Mary

. 2008. Eldercare and employed caregivers: A public/private responsibility? Journal of Gerontological Social Work 51 (1/2): 143–61.

57.

Kotsopoulos

Maria.

2010. What constitutes family status discrimination? Employment Notes, April 2010.

58.

Krieger

Linda Hamiltion

Best

Rachel K.

Edelman

Lauren B.

2015. When “best practices” win, employees lose: Symbolic compliance and judicial inference in federal equal employment opportunity cases. Law & Social Inquiry 40 (4): 843–79.

59.

Kwak

Minyoung

Ingersoll-Dayton

Berit

Kim

Jeungkun

. 2012. Family conflict from the perspective of adult child caregivers: The influence of gender. Journal of Social and Personal Relationships 29 (4): 470–87.

60.

Lambert

Susan J.

Fugiel

Peter J.

Henly

Julia R.

2014. Precarious work schedules among early-career employees in the US: A national snapshot. https://ssa.uchicago.edu/sites/default/files/uploads/lambert.fugiel.henly_.precarious_work_schedules.august2014_0.pdf.

61.

Laughlin

Lynda

. 2013. Who’s minding the kids? Childcare arrangements: Spring 2011. Washington, DC: U.S. Census Bureau. https://www.census.gov/prod/2013pubs/p70-135.pdf.

62.

McKay

Lindsey

Doucet

Andrea

. 2010. “Without taking away her leave”: A Canadian case study of couples’ decisions on fathers’ use of paid parental leave. Fathering: A Journal of Theory, Research, and Practice about Men as Fathers 8 (3): 300–20.

63.

Marshall

Katherine.

2009. The family work week. Perspectives on Labour and Income, April 2009. https://www150.statcan.gc.ca/n1/pub/75-001-x/2009104/article/10837-eng.htm#usalcas.

64.

Miller

Richard E.

Sarat

Austin

. 1980. Grievances, claims, and disputes: Assessing the adversary culture. Law & Society Review 15 (3/4): 525–66.

65.

Munsch

Christin L.

2016. Flexible work, flexible penalties: The effect of gender, childcare, and type of request on the flexibility bias. Social Forces 94 (4): 1567–91.

66.

National Self-Represented Litigants Project. 2016. The CanLII Primer. National-Self Represented Litigants Project, 2016 CanLIIDocs 235. http://www.canlii.org/t/27tb.

67.

Nielsen

Laura Beth

Nelson

Robert L.

2005. Scaling the pyramid: A sociolegal model of employment discrimination litigation. In Handbook of employment discrimination research, edited by Nielsen

Laura Beth

Nelson

Robert L.

Dordrecht, Netherlands: Springer.

68.

Oesch

Daniel

Lipps

Oliver

McDonald

Patrick

. 2017. The wage penalty for motherhood: Evidence on discrimination from panel data and a survey experiment for Switzerland. Demographic Research 37:1793–824.

69.

Ontario Human Rights Commission. 2016. Employment discrimination based on family status (fact sheet). http://www.ohrc.on.ca/en/employment-discrimination-based-family-status-fact-sheet.

70.

Orloff

Ann

. 1996. Gender in the welfare state. Annual Review of Sociology 22 (1): 51–78.

71.

Padavic

Irene

Ely

Robin J.

Reid

Erin M.

2019. Explaining the persistence of gender inequality: The work-family narrative as a social defense against 24/7 work culture. Administrative Science Quarterly 65 (1): 61–111.

72.

Petersen

Trond

Saporta

Ishak

. 2004. The opportunity structure for discrimination. American Journal of Sociology 109 (4): 852–901.

73.

Pocock

Barbara

. 2005. Work-life “balance” in Australia: Limited progress, dim prospects. Asia Pacific Journal of Human Resources 43 (2): 198–209.

74.

Presser

Harriet B.

2005. Working in a 24/7 economy: Challenges for American families. New York: Russell Sage Foundation.

75.

Reid

Erin

. 2015. Embracing, passing, revealing, and the ideal worker image: How people navigate expected and experienced professional identities. Organization Science 26 (4): 997–1017.

76.

Ridgeway

Cecilia L.

Correll

Shelley J.

2004. Motherhood as a status characteristic. Journal of Social Issues 60 (4): 683–700.

77.

Roscigno

Vincent J.

2007. The face of discrimination: How race and gender impact work and home lives. Lanham, MD: Rowman & Littlefield.

78.

Roscigno

Vincent J.

2019. Discrimination, sexual harassment, and the impact of workplace power. Socius: Sociological Researach for a Dynamic World 5:1–21.

79.

Sandefur

Rebecca L.

2007. The importance of doing nothing: Everyday problems and responses of inaction. In Transforming lives: Law and social process, edited by Pleasence

Pascoe

Buck

Alexy

Balmer

Nigel A.

London: The Stationery Office.

80.

Sandefur

Rebecca L.

2008. Access to civil justice and race, class, and gender inequality. Annual Review of Sociology 34:339–58.

81.

Smith

Jeremy Adam

. 2009. The daddy shift: How stay-at-home dads, breadwinning moms, and shared parenting are transforming the American family. Boston, MA: Beacon Press.

82.

Smith

Olivia

. 2014. Litigating discrimination on grounds of family status. Feminist Legal Studies 22 (2): 175–201.

83.

Statistics Canada. 2016. The rise of the dual-earner family with children. Labour Force Survey, 1976 to 2015. http://www.statcan.gc.ca/pub/11-630-x/11-630-x2016005-eng.htm.

84.

Still

Mary C.

2007. Generational diversity—litigating the maternal wall: U.S. lawsuits charging discrimination against workers with family responsibilities. Diversity Factor 15 (3): 30–35.

85.

Stone

Pamela

. 2007. Opting out: Why women really quit careers and head home. Berkeley: University of California Press.

86.

Strazdins

Lyndall

Clements

Mark S.

Korda

Rosemary J.

Broom

Dorothy H.

D’Souza

Rennie M.

2006. Unsociable work? Nonstandard work schedules, family relationships, and children’s well-being. Journal of Marriage and Family 68 (2): 394–410.

87.

Stryker

Robin S.

Reynolds-Stenson

Heidi

Frederico

Krista

. 2017. Family responsibilities discrimination, HR work-family discourse, and organizational mediation of US civil rights law. LIEPP Working Paper. https://spire.sciencespo.fr/hdl:/2441/5s25esb3bq95nadeqricuo26ag/resources/wp-70-stryker.pdf.

88.

Sullivan

Teresa A.

2014. Greedy institutions, overwork, and work-life balance. Sociological Inquiry 84 (1): 1–15.

89.

Sutton

John R.

Dobbin

Frank

. 1996. The two faces of governance: Responses to legal uncertainty in American firms, 1955 to 1985. American Sociological Review 61:794-811.

90.

Townsend

Nicholas W.

2002. The package deal: Marriage, work and fatherhood in men’s lives. Philadelphia, PA: Temple University Press.

91.

Turcotte

Martin

. 2013. Family caregiving: What are the consequences? Statistics Canada. https://www150.statcan.gc.ca/n1/en/pub/75-006-x/2013001/article/11858-eng.pdf?st=PhajIPk0.

92.

U.S. Bureau of Labor Statistics 2013. Eldercare in 2011. Washington, DC: U.S. Department of Labor. http://www.bls.gov/tus/2011_eldercare_factsheet.htm.

93.

Von Bergen

C. W

. 2008. “The times they are a-changin”: Family responsibilities discrimination and the EEOC. Employee Responsibilities and Rights Journal 20 (3): 177–94.

94.

Waite

Sean

Denier

Nicole

. 2015. Gay pay for straight work: Mechanisms generating disadvantage. Gender & Society 29 (4): 561–88.

95.

Wayne

Julie Holliday

Cordeiro

Bryanne L.

2003. Who is a good organizational citizen? Social perception of male and female employees who use family leave. Sex Roles 49 (5/6): 233–46.

96.

Williams

Joan C.

2006. One sick child away from being fired: When “opting out” is not an option. San Francisco, CA: UC Hastings WorkLife Law. https://poseidon01.ssrn.com/delivery.php?ID=35608102608900210210001912401303010700201806205201609410600911410700911910112400709112600603612301809911208809002511712101711910408406305909210009406807807010008307909109206211800411700600411400908608912106701902102127121118118124010067016066031127000&EXT=pdf.

97.

Williams

Joan C.

Blair-Loy

Mary

Berdahl

Jennifer L.

2013. Cultural schemas, social class, and the flexibility stigma. Journal of Social Issues 69 (2): 209–34.

98.

Williams

Joan C.

Bornstein

Stephanie

. 2006. Caregivers in the courtroom: The growing trend of family responsibilities discrimination. University of San Francisco Law Review 41:171–89.

99.

Zhang

Yan

Wildermuth

Barbara M.

2009. Qualitative analysis of content. In Applications of social research methods to questions in information and library science, edited by Wildemth

Barbara M.

Westport, CT: Libraries Unlimited.