Abstract
This article identifies, conceptualizes and analyses a normative conflict, embedded in social practises and conceptions on gender in the institutional framework of the market, which underlies labour law regulation as well as legal argumentation regarding working parents. The article evinces and models the basic structure of vital mechanisms operative in weakening parental rights in working life and labour law. The model is fleshed out inductively, using examples from Swedish national law, where the protection of parental rights is fairly strongly formulated, but where, in the same time, the provisions concerning employees’ parenthood have a relatively weak position in the living law. The weakness is explained as a normative incoherence, as expressed in labour law adjudication. In their application, legal provisions to support parental caring and gender equality thus can be forced to give way to encroaching norms based on the value of market efficiency.
Introduction
Perhaps more than in any other area of law, the activities and relations regulated in labour law are characterized by a discordance between the interests of the parties. This is due to the asymmetrical nature of the contractual relationship. Employers and employees do have certain fundamental interests in common, for instance regarding the need for stability, growth and competitiveness; however, the very purpose of labour law is to counterbalance the asymmetry in the relationship between employers and employees.
This is not to say that the interventions of labour law are always successful. Employers may sometimes be able, without breaching the law, to circumvent rules intended to protect their employees. Similarly, employees may be unable to claim certain rights in practice due to the detrimental treatment by their employers which they risk at a later stage. In cases like these, the discordance stemming from the asymmetry between the parties is particularly apparent, for the legal rules for protecting employees are rendered less effective. Such results can be explained as arising from a normative conflict, whereby deviating norms encroach at times upon the provisions aimed at safeguarding the rights of employees – rendering such provisions relatively weak in the living law (Julén Votinius, 2013). The normative conflicts engendered within the institutional framework of the labour market reflect a complex of relationships among a variety of norms – norms that come to expression on both social and legal levels (cf. Christensen, 1998).
In this article, I explore the normative conflicts that arise in connection with parental rights in working life. I hope in the process to pinpoint and clarify the position within labour law which is accorded to the parents of small children. The legal material here comes from Swedish national law, which sets out the protection of parental rights in fairly strong terms. Empirical information about the social reality of working parents is provided from social studies scholarship on family, gender and policy research, along with government reports, trade union surveys and investigations published by the Equality Ombudsman authority.
In their efforts to reveal and analyse conflicting norms, their interplay and the arguments around them, labour law research have much to gain from developing analytical models capable of recognizing and integrating the underlying conceptual and social aspects of the matter. Much of the content of legal rules amounts to a codification of moral practices and fundamental values that have emerged in society, and which form the basis for – but also are reflective of – the organization of communities and the establishment of relationships between people in their everyday lives (Brooks and Madden, 2012; Durkheim, 1988 [1893]). A study that starts from the ideas forming the background to the matter of law to be explored makes it possible to identify the dominant underlying values in the area. The imperatives stemming from these dominant values affect the application and impact of law, and they may also be represented in the legal sources themselves. On an aggregate level, the imperatives supporting similar values and ideals play out in norms – norms that govern the area in question and which may give raise to normative conflicts. In what follows, I distinguish three important governing norms in connection with parental rights in working life: the parenthood norm, the primacy-of-working-life norm and the motherhood norm. These three norms function as ideal-typical representations, which, in this article, provide a methodological strategy for reducing the complexity of the legal discourse on parental rights in working life (Weber (1949 [1904]).
By contrasting such norms with the legal sources in the area, we can assess the overall institutional support for each norm. This allows for some important conclusions regarding the relative strength of the conflicting norms. Assessing their relative strength is necessary if we are to understand the complex interaction of values affecting the real implications of law.
The Underlying Ideas
The Swedish labour law framework regulating the situation for employees with parental responsibility gives expression to two fundamental ideas: that it should be possible to combine working life with parenthood, and that caregiving responsibilities should be shouldered by both parents. These ideas are expressed very clearly in the preparatory works to the legislation in question, and they are legally codified in a far-reaching right to parental leave at a high level of economic compensation. A portion of the leave is individual and non-transferable between parents, and any unfair treatment at work in connection with parenthood is strictly prohibited. The same idea is to a certain extent represented in the discourse on European Union (EU) law, even if the primary legal focus in that case is on women’s rights in connection with pregnancy and motherhood. Since 1996, however, the EU’s directive on parental leave has guaranteed all employees the right to at least 3 months’ (unpaid) parental leave (extended to 4 months in 2010). This has helped employees combine work with parenthood in member states whose national legislation had not already guaranteed such a right. The directive also restricts the right of parents to transfer leave between themselves – a restriction expressly established to promote a more equal distribution of parental leave between women and men, to promote equal opportunities and treatment for men and women (Section I.8, Framework Agreement, Council Directive 2010/18/EU). The same fundamental ideas – that it should be possible to combine gainful employment with parenthood, and that the caregiving responsibilities that come with parenthood must be the concern of both parents – are also emphasized in the Commission’s proposal in 2015 to change the Pregnant Workers Directive, entitled ‘New start to address the challenges of work-life balance faced by working families’. In that document, the Commission underlines the need both to create a better balance between caring and professional responsibilities and to promote a more equal distribution of the work–life balance between women and men (European Commission, 2015). In April 2017, the Commission followed up this initiative with a proposal to replace the Parental Leave Directive with a comprehensive Directive on work–life balance for parents and carers (European Commission, 2017).
However, these notions – that it should be possible to combine working life with parenthood, and that caregiving responsibilities should be shouldered by both parents – are not uncontroversial. Nor do they always find support in social practices or, upon closer examination, in the broader labour law context. The view represented in the special regulations for employees with parental responsibility is pitted against another view, which finds expression both in social practices and in laws that pertain to areas other than parenthood. The difficulty of reconciling the market-oriented interests of employers with the parental interests of their employees is of great analytical importance here, as is the perception that parenting work is primarily the domain of women.
The tension between gainful employment and parenthood is largely a product of industrialized society. The need to combine work with parental obligations arose in the new industrial order of the late 19th and early 20th centuries. This new order meant that a clear distinction emerged between paid work in industry and unpaid work in the home. The unpaid work of homemaking, including the care of children, still needed to be done, but the new industrial society required that this work be combined with work outside the home, because it was from the latter that the household’s income now came. Industrialization made the employment relationship an important aspect of production. In this relationship, moreover, employers have a market-oriented interest in maximizing the efficiency and competitiveness of the undertaking, while many employees have an interest in becoming parents – and in not being hindered from so doing by the conditions of their work or by unfair treatment meted out to them as a result of their having children.
In addition, the tension between employment and parenting has long been regarded mainly as a woman’s problem. Responsibility for the household and for children has traditionally fallen to women, irrespective of whether or not they work outside the home as well. And while this state of affairs is no longer seen as fully so self-evident, women today still bear the heavier burden in connection with household work and child care (Davaki, 2016). It is women, for example, who use the majority of parental leave days. As a rule, moreover, mothers work part-time when the children are small, while fathers do not (European Commission, 2015).
The Governing Norms in the Field of Parenthood in Working Life
Three Governing Norms
The provisions of Swedish labour law that regulate employees’ rights in connection with parenthood are based on the idea that the responsibilities of parenthood should be divided equally between both parents, and that it should be possible to combine parenthood with working life. Arguments, practices and rules that support this line of thinking express what I call the parenthood norm. A central component of this norm is the notion that the care obligations associated with parenting apply to both parents. However, labour law provisions in this area are also viewed in the light of arguments, practices and rules that confirm the notion that children and parenting are primarily the purview of the mother. This approach expresses what I call the motherhood norm. In working life, moreover, the parenthood norm stands in contrast to a norm according precedence to the market-oriented interests of employers over the interests of parents, meaning that the parenting commitments of employees must not encroach upon their work. I call this the primacy-of-working-life norm. This norm is also an important component in the mode of thinking which takes the male employee as the measure and standard in working life – and in labour law too. The parenthood norm, the motherhood norm and the primacy-of-working-life norm capture the gender-related ideas, attitudes and approaches which have been and continue to be driving forces in the development of laws relating to work and parenting. The three norms represent socially and mentally established perceptions. In various ways and at different times, furthermore, these social norms have been incorporated into law, where they have taken concrete form as legal rules and as themes in legal argumentation. The parenthood norm is the foundation for the Swedish rules protecting employees in connection with childbirth and parental leave, and it is clearly expressed in the pertinent statutes and their preparatory works. It also serves as the starting point for my discussion here. The parenthood norm is not treated separately in any specific section of this article; instead it figures in the analysis throughout. In what follows, however, I shall elaborate on the other two norms to some extent.
A Closer Look at the Motherhood Norm
The discursive context of today’s motherhood norm evinces three prominent components: a highly essentialist conception of women as natural caregivers; a strong line of demarcation between public and private spheres; and, in connection with this, support for the political philosophy that the state must refrain from intervening in matters belonging to the private sphere. The motherhood norm is defended in the first instance by recourse to arguments that fasten on the needs and characteristics of mother and child – the two people which, according to this norm, are centrally involved in parenthood (Hays, 1996; Williams, 2000). At times, although less often, arguments of a sociopolitical nature are also adduced in support of this view (Claeson, 2006; Popenoe, 1988; Robertson, 2003). The structure of argument surrounding the motherhood norm diverges in this respect from that surrounding the parenthood norm, and the difference is important. The motherhood norm, namely, is understood in the first instance as a matter of personal preference, or even as a question of resigning oneself to the inevitable – and not as an ideologically coloured ideal. The parenthood norm, on the other hand, is seen as being political and founded on ideology. The predisposition of the parenthood norm towards a more equal division of responsibility – whereby men take on a greater share of childcare – involves a demand for change (Bekkengen, 2006). Demands for change are often perceived as being purely ideological. In contrast, demands for inaction and for maintaining the status quo are often viewed as non-ideological, or as founded only weakly on ideology, because they mean that political measures are kept to a minimum or that they serve merely to promote the prevailing order. Such measures are often described as helping people to arrange their lives as they see fit and as representing a posture on society’s part of non-interference in private affairs. This presumes, however, that the way in which people have arranged their lives is indeed the way they want them to be. In reality, however, many of the routines people establish to make daily life ‘work’ for them are the result of a series of considerations and compromises made within given confines of possibility. These given confines reflect, among other things, economic preconditions, the demands of working life, expectations on the part of others and the wishes and willingness to cooperate shown by family and friends. What people really want to do, therefore, can be entirely different from what they choose to do in a particular situation. In cases of this kind, the policy of non-intervention and backing the status quo is not an effective way of ensuring that people can arrange their lives as they wish. Quite the opposite – political measures to bring about change can be just what is needed to enable people to organize their lives as they truly wish. The claim that policies which promote change are more ideological than those which maintain the status quo is an exercise in rhetoric. Moreover, in the discursive context to which the motherhood norm belongs, such a claim is closely tied to the time-honoured custom of dividing social reality into two spheres: a private and non-political domain on the one hand and a public and political domain on the other. The home is thought to belong to the former sphere; life outside the home (including work) to the latter (Benhabib, 1992; Landers, 1998; O’Donovan, 1985; Russell, 1945). These categorizations are bolstered and maintained by a political philosophy according to which the state is not to meddle in the private sphere; this is sometimes expressed as a requirement that the state remains neutral (Hayek, 1960; Nozick, 1974, , but see Jónasdóttir, 1991; Pateman, 1989). This approach also involves a view of private life as off limits for political discussion: Advancing arguments about the public sphere in a discussion of home and family life is seen as an attempt to make the private political. Proceeding on this premise, one can avoid discussing the relationship between how the private sphere on the one hand and working life on the other are organized, with the latter being arranged in accordance with the expectation that an employee will not bear primary responsibility for the care of his family’s children. Such a discussion of working life is unwelcome within the discursive context of the motherhood norm. This is a context where women and men are conceived as having naturally separate and distinct family functions, with women being the main caregivers and men the primary providers (Kugelberg, 1999; Melby et al., 2000). The basic tenets of the parenthood norm – that care of children should be shared by women and men equally, and that working life ought to be so organized that all employed parents can take on an equal share of childcare – are antithetical to the entire notion that women and men have different and complementary functions to fill, each in their own sphere: women in the private, men in the public. At the same time, it is precisely this line of thought that is required to maintain the primacy-of-working-life norm in relation to parents of small children. The expectation in working life and labour law that an employee typically will not bear the primary responsibility for childcare is also an indication that someone else is expected to take care of the family’s children. The motherhood norm tells us who that someone else is – the woman – and advances a strong presumption that it must be so. Since the motherhood norm rests on the idea that women are naturally better suited to care tasks, it implies that women therefore have a greater moral duty to bear the childcare burden.
A Closer Look at the Primacy-of-Working-Life Norm
The primacy-of-working-life norm is a fundamental organizational principle of working life. It builds on the notion that employees are available and adaptable. And deviating from this norm is always associated with a risk of disadvantage for employees, although the form that such disadvantages take varies in different areas of the labour market.
It is the female-dominated workplaces and positions that show the greatest tolerance towards employees who wish to make use of their parental rights (Amilon, 2007: 392; Bekkengen, 2002; Bygren and Duvander, 2005; Gustafson, 2006; Kaul, 1991; Näsman, 1995; Tyrköö, 1997). Here, the prospects for reconciling job and family responsibilities are quite good. This is in spite of the fact that the working conditions in female-dominated sectors typically are characterized by a comparatively low level of flexibility and self-determination, which indeed would indicate that this work would be more difficult to combine with parental care work (Governmental Report, SOU 2014: 30, 174). The permissive attitude towards the employees with small children that is generally displayed within these sectors may be said to reflect an institutionalized acceptance for deviations from the primacy-of-working-life norm; this norm is weaker in these sectors than in other branches or professions. The price that employees have to pay for working in such a family-friendly sector consists in lower wage levels and fewer career opportunities. This furthermore applies to all employees in these sectors, irrespective of whether or not they make use of the opportunity to combine work and parenthood.
On the other hand, within sectors that display a low tolerance for employees who make use of their parental rights – and where the primacy-of-working-life norm is accordingly strong – employees who wish to adapt their working situation to the needs of their family life must negotiate an individual acceptance to deviate from the norm. Undertaking such a negotiation always involves the risk of being defined as a deviant from the expectations of the workplace. When this happens, the employee in question has to pay the price alone, in terms of less favourable wage or career advancement, or reassignment to another position, or – in the worst case – replacement by an employee whose family situation better corresponds to the ideal that prevails at that workplace. In these sectors, both male and female employees must be prepared for negative consequences of this kind if they try to make use of their parental rights (Haas and Hwang, 2000). The notions about employees embodied in the primacy-of-working-life norm, according to which employees, irrespective of whether they are parents or not, can invest most of their time and energy in work, corresponds very well with the gendered ideas about parenthood embodied in the motherhood norm. These ideas mean that one of the adults in the family has to shoulder the main responsibility for care of the children. An organization of home life in accordance with the motherhood norm is thus very important – while perhaps not absolutely necessary – for gaining acceptance for the organization of working life in accordance with the primacy-of-working-life norm. Were the motherhood norm to be abandoned in the organization of home life, so that men and women shouldered an equal responsibility for childcare, it would be very difficult to preserve the legitimacy of an order in which parenting commitments were expected to take a back seat to work. In this way, the motherhood norm interacts concretely with the primacy-of-working-life norm to preserve an order in which women’s place remains firmly at home, and men’s place at work – and where working life is freed from any obligation to adapt itself to the needs of parents. Together, then, these two norms stand pitted against the parenthood norm, which strives rather for a different reality: an order in which men and women occupy the same self-evident status both at home and in gainful employment, and where a satisfying career can be successfully combined with a commitment to care for one’s children.
Institutional Support for the Different Norms in Swedish Labour Law
The Rejection and Subsequent Return of an Official Motherhood Norm
From the turn of the 20th century and some 70 years on, the motherhood norm was not subject to any debate in Sweden. It was a given that only a woman’s working situation – not a man’s – was affected by the birth of a child. The first protective rules for working parents applied only in relation to pregnancy and childbirth. A right to parental leave was introduced later, but only for women. The question of whether men should have the same parental rights as women never came up in legislation or in political debate. The discussion was instead limited to the issue of how much legal and social protection female employees might need in connection with the birth of a child. The protective rules in this area were designed for a labour market where the male employee explicitly set the standard, and in a context which emphasized the primacy-of-working-life norm. A clear expression of this mindset was the fact that women were not employed in certain occupations, irrespective of whether they had children or not. The very fact of their being female was thought sufficient to render women unsuitable for such jobs. It was presumed, namely, that in time they would become mothers, and so would deviate from the primacy-of-working-life norm. The gendered order in working life was thus supported, and also triggered, by the rules that protected women but not men in connection with childbirth (Nermo, 1999).
By the early 1970s, many of the social conceptions that had formed the basis for earlier legislation had changed. Equality between men and women had emerged as a political priority, and legislation for the protection of parental rights was seen as an important instrument for promoting such equality in economic terms (Carlson, 2007). The birth of a child was no longer thought to concern only the woman. The father too, in the now current view, was a parent, and he was equally obligated to shoulder the care responsibilities involved. In 1973, through the introduction of gender-equal parental leave, this position was institutionalized, and the parenthood norm became the official norm (Government Bill, prop. 1973:47; Government Report, SOU 1972: 34). Since the mid-1970s, this norm has formed the foundation for Swedish labour law in this area. The need to promote gender equality is its central thrust. However, the idea that parenthood concerns men and women equally was only one side of the shift towards the parenthood norm. Since women still bear most of the care responsibilities, the other side is equally important from the perspective of gender equality: namely, the ability to combine care duties with employment. In the years that followed, several measures were introduced to promote the parenthood norm in working life and within families, not least through the introduction of rules reserving a part of the paid parental leave for each of the parents; the so-called daddy month (Government Bill, prop. 1993/94: 147; Government Report, SOU 1993: 7).
In a sense, Sweden’s entry into the EU in 1995 was a step backwards for the parenthood norm. Not only does EU law clearly embrace the primacy-of-working-life norm; at the time it was also – as indeed it still is – strongly influenced by the motherhood norm. Joining the EU thus meant a return to the motherhood norm in Swedish law – this time through EU law.
Legal developments in the Union in this area have centred above all on the protection of women in connection with pregnancy and childbirth (Caracciolo di Torella and Masselot, 2001; Foubert, 2002; Fredman, 1994). Women who are pregnant or who have recently given birth are covered by provisions on health and safety in the workplace and on the right to maternity leave. In a large number of cases relating to implementation of the Equal Treatment Directive 76/207/EEC and the Pregnant Workers Directive 92/85/EEC, the Court of Justice of the European Union (CEJU) has developed a body of case law that provides women with very strong protection against discrimination on grounds of pregnancy. This case law, which in large part has been codified in later versions of the Equal Treatment Directive 2006/54/EC, lays down that any less favourable treatment on grounds of pregnancy or parental leave is tantamount to gender discrimination within the meaning of the Directive (cases C-177/88 Dekker [1990] ECR I-3941; C-207/98 Mahlburg [2000] ECR I00549; C-109/00 Tele Danmark [2001] ECR I-6993; C-438/99 Melgar [2001] ECR I-6915 and C-284/02 Sass [2004] ECR I-11143). Then, in addition to the rules on pregnancy and maternity leave – with the strong protection they provide to women who have children – EU law contains rules on parental leave. The Parental Leave Directive 2010/18/EU apply in equal measure for men and for women. However, this directive does not ensure employees a right to paid leave, which is the case for maternity leave; nor does it provide a very strong protection for the employment and employment conditions. The directive contains a ban on less favourable treatment, but this is not the same as a ban on discrimination. The really strong protection offered to employees in their role as parents is the one that applies during pregnancy and maternity leave. And this covers female employees only, reflecting the CJEU’s emphasis on motherhood rather than parenthood.
Notwithstanding the CJEU’s case law and the content of the binding legal acts, it would be too simple to say that the motherhood norm enjoys undisputed hegemony at the level of the Union. The issue of how work and family are to be reconciled to the benefit of gender equality has long been discussed on the EU level. The most recent examples of this are the comprehensive proposals mentioned in ‘The underlying ideas’ section, on changes in the Pregnant Workers Directive and the Parental Leave Directive (see also European Commission, 2008). Despite the dominance of the motherhood norm in the binding legal provisions, the discourse within the Union has displayed a number of progressive features. Some of the Union’s institutions, in fact, have questioned the motherhood norm for as long as the Swedish legislator has. This can be seen in the non-binding acts, some of which are based instead on the parenthood norm. As early as in 1974, the Council drew attention to the need for measures for employees who want to combine family responsibilities with gainful employment (Council Resolution concerning a social action programme, 1974; Council Resolution on equal participation by women in an employment-intensive economic growth strategy, 1994; Council Resolution on the balanced participation of women and men in family and working life, 2000). The fact that such non-binding acts give strong expression to the parenthood norm may create an impression that the Union is more oriented to the parenthood norm than it really is (Foubert, 2002; McGlynn, 2007). The motherhood norm, after all, is still dominant within binding EU law – and it is that which provides employees with enforceable rights.
The following section deals with the institutional support for the primacy-of-working-life norm. Unlike the motherhood norm, this norm is not directly tied to gender. Whether the primacy-of-working-life norm affects gender patterns in working life and in society depends on which norm prevails within families when the care of children is divided between parents. If the care duties are distributed in accordance with the motherhood norm – so that women bear a heavier burden in this area – then it will be women who are unable to fulfil the demands made at work to limit their care duties in order to be able to devote themselves fully to their job. On the other hand, if the care duties are distributed in accordance with the parenthood norm – so that women and men bear them in equal measure – then both mothers and fathers will be perceived as less dedicated workers. Today, however, it is women who use most parental leave days; and it is they who make up the majority of parents who work part-time when the children are small (Miani and Hoorens, 2014). This is true in Sweden too, even if that country stands out in international comparisons for having made considerable progress in achieving gender equality (Statistics Sweden, 2016). This means, as a practical matter, that the care duties are mainly distributed in accordance with the motherhood norm. Under these conditions, the primacy-of-working-life norm operates in such a way as to ensure that women are generally more disadvantaged than men are in connection with parenthood.
The Predominant Influence Within the Labour Market of the Primacy-of-Working-Life Norm
While the particular labour laws that aim to protect employees in connection with parenthood are based on the parenthood norm – that is, the idea that it should be possible to combine working life with parental obligations – the basic structures of working life are based on the premise that employees typically do not bear the primary responsibility for care of the family’s children. Not only is this premise the foundation for the organization of working life, it is also the basis for labour legislation.
One factor of decisive importance for the balance of power between employers and employees is the principle that the former have the right to direct the work process. The employer’s right to direct and allocate work is manifested in different ways in different legal systems (Collins, 1987; Rönnmar, 2006). In Sweden, this general principle is also manifested as a so-called tacit clause in all collective agreements. Aside from the limitations that may result from the employment contract, and if applicable, the collective agreement, the principle of the employer’s right to direct and allocate work entails the right of employers to transfer employees and to assign them new duties. The scope of the powers enjoyed by employers in this area has been determined by weighing the interests of the respective parties against each other: that of employers in being able to direct the work process; that of employees in being accorded fair treatment and security in employment. In this weighing process, employees are not conceived primarily as persons bearing responsibility for small children; in fact, court cases (or preparatory works) regarding the extent of managerial prerogatives in this area almost never touch upon the fact that employees may be pregnant or may have small children.
It is on the basis of this perspective, in the first instance, that labour laws have been passed to protect employees against arbitrary decisions on the part of their employers, and to put limits on the former’s power of decision. This means that the parenthood norm – which forms the basis for the rules that protect employees in connection with parenthood – finds essentially no expression in the provisions of labour law which regulate the balance of power between employers and employees. It is also evident from the preparatory works of the Parental Leave Act 1995:548, even though the latter is one of the most important laws for implementing the parenthood norm. Section 16 of the Act forbids unfavourable treatment in connection with parenthood. This prohibition applies in all situations that normally arise in the employment relationship, including recruitment.
At first glance, this prohibition against unfavourable treatment would appear to be very strong – and thus indicative of a clear insistence on the parenthood norm. The prohibition comes, however, with an exception. In certain cases, namely, employers are allowed to treat their employees less favourably if the latter take parental leave – that is, in cases where such a decision on the former’s part might be seen, as the law puts it, as a necessary consequence of the latter’s choice to take parental leave. The meaning of this exception is explained in the preparatory works, which discuss three examples of situations where the exception is to apply, and where an employer may thus refuse an applicant due to his or her taking parental leave (Government Bill 2005/2006: 185: 87; Ministry Report, Ds 2005:15: 108). The situations discussed are when the employer finds it hard to recruit a substitute, when it is a matter of brief and fixed-term employment or when the position has got to be filled immediately. The se three examples say something about the place of the parenthood norm within the larger context of Swedish labour law today – that is, about how this norm is articulated, and how its influence in legislative terms is adjusted according to the requirements of the labour market and of working life.
The selection of situations where the prohibition against unfavourable treatment may be set aside, according to the preparatory works, clearly illustrates the limited extent to which the parenthood norm is allowed to intrude upon the domain of working life – where the primacy-of-working-life norm prevails. To be sure, employers need to be able at times to meet market demands, both by hiring employees on a brief and fixed-term basis and by recruiting people for positions that must be filled immediately. But the preparatory works of the Parental Leave Act 1995: 548 ignore the fact that, today, both of these possibilities are established and everyday features of work organization and staff planning in many workplaces. In other words, situations of this kind – where applicants may be treated less favourably for reasons connected with their use of parental leave – tend to arise frequently. What the preparatory works describe as exceptional appears in fact to be quite commonplace (Allvin et al., 2011).
The preparatory works also discuss situations where the prohibition is not to be seen as applicable at all, as the less favourable treatment meted out by the employer is unrelated to the employee’s use of parental leave (Ministry Report, Ds 2005: 15: 107). This applies in cases where the employer, in the course of reorganizing the work process, decides to change tasks and employment conditions for an employee who is on parental leave; or where an employee, after having taken parental leave, is reassigned because his/her original job tasks have ceased to exist during the leave; or where an employee on parental leave is dismissed due to redundancy. The starting point for the discussion in all these cases is the principle that employees who take parental leave must never end up enjoying a better position than their fellow employees in regard to job protection. However, the preparatory works of the Parental Leave Act 1995: 548 do not touch upon the fact that it is the employer who decides whether there is a redundancy, or who initiates a reorganization of the work process, and that such measures can be planned in such a way as particularly to affect a certain employee – for instance, one who decides, in contravention of the employer’s will, to make use of his or her parental rights (c.f. Ministry Report Ds 2002:56: 186).
The reasons for less favourable treatment of employees with small children, and for the difficulties that may arise for those wishing to combine work with parenthood, are not only to be found in the balance of power between the rights of the employer and those of the employee. They originate as well in important structures of working life – structures which promote the primacy-of-working-life norm. This norm finds expression in labour law through the latter’s portrayal of the employee as a person without extensive responsibility for the day-to-day care of children. This is perhaps most clearly manifested in the expectation within labour law generally that work is full time, which according to Section 5 of the Working Hours Act 1982:673 more precisely means 40 h per week. Carving out the time needed to take care of a child compels many employees – a large majority of them women – to work part-time. For these employees, combining work and parenthood can only be done by deviating from the standard legally codified in the Working Hours Act 1982: 673 for how the hours of the week are to be divided between work and leisure time.
However, labour law does more than just confirm the primacy-of-working-life norm. By providing generous opportunities for fixed-term employment, the Employment Protection Act 1982:80 promotes the social practices in working life that support and maintain this norm. When the law makes it easy for employers to hire workers on a time-limited basis, it also makes it easy for them to retain a structure of working life where employees are expected to ensure that childcare responsibilities do not interfere with work. Such a structure can be preserved by refraining from rehiring employees who allow their parental role to interfere with work, when their fixed-term contract concludes. Permanent employees as well can meet with problems when they seek to exercise their rights in connection with parenthood; but for fixed-term employees, attempting to exercise these rights may well be the same in practice as asking their employer not to renew their contract (Bonet et al., 2013; Persson, 2014). Normally, a fixed term contract ends automatically when it reaches the agreed end date, and this is the case even if the employee is pregnant or on parental leave. A decision not to renew a contract might amount to discrimination on the ground of sex (cf case C-438/99 Melgar), or to less favourable treatment in the meaning of the Parental Leave Act, if the decision is based on considerations connected to the employee’s pregnancy or parental leave. However, unless the employer has explicitly stated that the decision has been motivated by pregnancy or parental leave, it is typically difficult to establish the necessary connection between the pregnancy or parental leave and the non-renewal of the contract. The labour laws that regulate the organization of working life, in terms of hours of work and forms of employment, interact with the non-legal frameworks internal to a given industry or workplace in deciding the actual working conditions of each employee. In a study of how rules for protecting parental rights – and the ideals underlying such rules – are weakened by the legal provisions that affect the organization of working life, it is important to take account of how non-legal social norms which influence the organization of working life create difficulties for employees who seek to combine work and parenthood. Employees who wish to combine work with parenthood can encounter numerous stumbling blocks within their industry or workplace – among them the risk of being thought undesirable in the workplace or industry; of advancing more slowly in terms of salary and career development; and of suffering exclusion and a loss of contact and influence (Albrecht et al., 2015; Huusu, 2001; Saagvag, 2007; Sunna, 2005). These risks are rooted in the fact that, in certain branches and workplaces, the primacy-of-working-life norm is applied as an unquestioned and self-evident organizational principle; materialized inter alia in expectations on the employees to work long hours, go on work-related travel and to be available for professional tasks and activities outside business hours (Gustafson, 2006; Rutherford, 2001).
Labour law can thus be said to undermine employees’ efforts to combine work and parenthood in two ways: through the rules that concern the organization of working life and through those that determine the scope of employers’ power of decision. The line of demarcation between these two categories is not always clear; indeed, the categories overlap in many ways. Nevertheless, the questions that arise in this connection – when the provisions for protecting parental rights are pitted against the two types of rules – differ in character as between the two categories. The rules regulating the employer’s power of decision raise questions bearing on the relationship of power between the employer and the employee. They largely concern the question of whose interests are to carry more weight: those of the employer or those of the employee. The rules for organizing working life, on the other hand, raise questions regarding how working life and production are to be structured. These questions are of particular interest for the discussion in this article, as they yield a certain picture of the social and legal structures of working life. The ideals to which these structures give expression play a central part in forming conceptions about what an employer can require, what an employee must agree to and what qualifies as good working conditions.
The Relative Strength of Different Norms
The labour laws for employees with parental responsibilities have been established to protect working parents of small children and to prevent practices that disadvantage employees who have or who expect children. From a methodologically particularistic perspective, these rules would seem to be well-suited to realizing the ideal underlying the parenthood norm: that of a successful combination of work with parenthood. However, if we look beyond the rules as such and instead take a methodologically holistic perspective, whereby we consider the broader labour law context in which these rules operate, another picture comes into view. It then becomes clear that important features of the overall labour law framework do not express the values of the parenthood norm. Instead they support, in reality, the primacy-of-working-life norm – by confirming the ideal underlying it, and by facilitating its continued prevalence in working life.
Describing parenthood among employees as a problem in the workplace and in working life is not particularly well-accepted in official contexts. Nevertheless, it does not appear to be necessary to express a view of parenthood as problematic for it to be regarded as such. In parts of the labour market, the primacy-of-working-life norm has a strong standing, even if this term is not generally used and has been developed specifically for the discussion in this article. In colloquial speech, one might say instead that a certain job is not easily combined with the care of small children or that a certain time is not the best for starting a family and taking parental leave.
The requirement that employees enjoy the necessary space to carry out their parental duties has never been established as altogether self-evident in working life. The labour laws designed to protect working parents require that arrangements be made to facilitate the combination of work with parenthood, and they are quite detailed in setting out how this is to be achieved. Furthermore, some employers offer benefits in this area that go beyond the minimum required by law. Still, in the practices of employers and in the minds of employees, a recognition of the needs of employees in this regard is only weakly rooted, as compared with that shown for the market-oriented needs highlighted by the primacy-of-working-life norm – according to which the responsibilities of parenthood must not be allowed to encroach upon work. Employers often expect employees to be more adaptable and accessible than is possible for an adult who bears primary responsibility for the family’s children. An illustrative example of this is provided in a 2015 survey from the largest Swedish trade union for white collar workers in the private sector, where three of four employees reported that they regularly carried out work while on parental leave for care of sick children – and that their employers expected them to do so (Unionen, 2015). As soon as parents of small children show understanding for the view that parental responsibilities should not interfere with work, this leads them to see themselves as a source of problems in the workplace when they seek to exercise their rights in connection with parenthood (Eek and Axmon, 2013; Equal Opportunities Ombudsman, 1999; Kugelberg, 2004: 105). When this happens, the primacy-of-working-life norm has such a strong influence that the needs of parenthood are seen as a source of problems in working life – without it ever being necessary for this viewpoint to be voiced in public debate.
The employer’s right to decide over how production is organized and labour is deployed in itself entails a managerial flexibility that can serve, in a range of situations, to penalize employees who are pregnant or who have parental responsibilities. Such situations can arise in connection with recruitment, restructuring or redundancy (Kumlin, 2014; Ministry Report, Ds 2005: 15: 107). Protections against discrimination and unfair treatment are eroded when the overall labour law context serves to facilitate managerial decisions which, although apparently unrelated to the question of how employees are to combine work with parenthood, make it difficult or impossible in practice for them to demand the space they need actually to do so. This means that the rights established to realize the ideal underlying the parenthood norm – of a work-parenting balance, guaranteed to employees in connection with pregnancy and parenthood – do not self-evidently apply as a practical matter. When the situation comes to a head, namely, the rights of employees can come second to the rights accorded to employers by the general framework of labour law. The ideal underlying the parenthood norm, materialized in the labour law provisions relating to parenthood, is undermined by the overall orientation of labour law, which is based on the assumption of the employee as someone who works full time without interruptions, and who is at the employer’s disposal as needed. This allows the primacy-of-working-life norm to prevail without hindrance. An employee who refrains from demanding the space necessary to combine work and parenthood is an employee who does not allow care obligations to encroach upon work – just as the primacy-of-working-life norm demands.
Moreover, the internal systems for among other things wage growth, promotion and work organization may be arranged without account being taken of the fact that employees can also be parents. In many sectors, such systems are ill-suited for employees who wish to combine work and parenthood. Employees of this kind are thus put at a disadvantage, as compared with those who do not allow parenting obligations to encroach upon work (Acker, 1990; Gustafson, 2006; Magnusson, 2008; Magnusson and Nermo, 2017).
The fact that working life in industrialized society has been organized in accordance with the primacy-of-working-life norm – according to which employees must give priority to work over parenting – does not mean that all employees can fulfil this requirement. It does mean, however, that employees who deviate from this norm may be seen as less satisfactory employees, both individually and as a category, and that this affects the jobs and working conditions that they can get (Evertsson and Duvander, 2011; Magnusson, 2010). Moreover, one can be classified as ‘deviating’ merely because one belongs to the category of employees who usually bear primary responsibility for the care of small children. In other words, it may well be enough to be a woman to be categorized in this way. In recruitment situations, for example, women are asked more often about their plans for starting a family and having children (Unionen, 2012: 11, 2017: 22).
Placed on the scale against the reality of working life and considered in a larger labour law context, the legally codified parenthood norm – with its ideal of a successful integration of work and parenthood – proves to carry relatively little weight. When put to the test, the interest to be defended within the framework of the parenthood norm – the employee’s need for the space necessary to take care of a child – is many times reduced to something of relatively scant importance. Something else weighs more heavily instead: the practices that express the primacy-of-working-life norm, with its ideal of the employee who does not permit parenting responsibilities to encroach upon work.
In essence, this predominance reflects the fact that the primacy-of-working-life norm is based on market efficiency logics. In the context within which working life is organized – with its market demands and its economic pressures – market-oriented norms serve as a point of reference for the implementation and application of other norms. They also function as a point of reference for labour-market actors, influencing their actions in such a way as to reinforce the supremacy of said norms. The more that employees refrain wholly or in part from exercising their rights in connection with parenthood – in an effort to avoid punitive consequences at work – the greater will be the pressure on other employees to do the same (Bygren and Duvander, 2004; Eek and Axmon, 2011). But the imperatives of market ideology are only part of the reason why the parenthood norm has not yet had a thoroughgoing impact on working life. Equally important is the fact that the primacy-of-working-life norm is sustained in a basic way by the influence of the gendered motherhood norm.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
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