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JULIE C. SUK*
From Antidiscrimination to Equality: Stereotypes and the Life Cycle in the United States and Europe† In the United States, mandatory maternity leave is sex discrimination, and mandatory retirement is age discrimination. By contrast, European antidiscrimination law is compatible with both types of mandatory employment policies. This article compares the jurisprudence and policy debates in the United States and Europe on mandatory maternity leave and retirement to unearth two different understandings of the state’s role in advancing equality. In the United States, employment equality is closely tied to preserving individuals’ choice to work, whereas in Europe, employment equality requires collectively imposed norms about the role of work in a person’s life cycle. The comparison highlights the tradeoffs between protecting individual autonomy and combating the social and economic forces that undermine equality. There is a notable divergence between American and European antidiscrimination law on two policy issues: mandatory maternity leave for female employees around the time of childbirth, and mandatory retirement for employees at a particular age. Properly designed and implemented, both of these policies can promote the interests of women and older workers in ways that optimize equal employment opportunity and dignity in the workplace. But in the United States, antidiscrimination law forecloses experimentation with such policies: mandatory maternity leave has been presumed to violate Title VII’s prohibition of sex discrimination, and mandatory retirement explicitly violates the Age Discrimination in Employment Act. By contrast, thus far, European courts have declined to invalidate mandatory maternity leave or mandatory retirement on the basis of antidiscrimination or equality provisions. In comparing the American and European jurisprudence and policy debates on these issues, this paper identifies two distinctive theories of the relation* Professor of Law, Benjamin N. Cardozo School of Law – Yeshiva University. Thanks to Grainne ´ de Burca, ´ Ruth Rubio Mar´ın, Alvaro Oliveira, Reva Siegel, Kenji Yoshino, and the participants in the Evolution of Anti-Discrimination Law workshop at Harvard Law School in May 2011 and the Cardozo faculty brown bag for comments on an earlier draft. † DOI http://dx.doi.org/10.5131/AJCL.2011.0024
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ship between equality and individual choice. In the United States, employment equality requires individuals’ choices to work to remain unconstrained by group-based stereotypes. In Europe, equality requires a set of shared norms about the role of work in a human being’s life cycle, which are maintained by collective coordination and threatened by individual exercises of choice. Contrasting the United States and Europe on mandatory maternity leave and retirement sheds light on the different theories of the liberal state that have given shape to American and European equality. U.S. equality law, by defining equality through a commitment to individual choice, has evolved to reject the legitimacy of the state’s promotion of a vision of the good life, particularly when these normative visions are uncritical of existing gender and age roles. In many European countries, the state assumes that new mothers and older workers should work less, and actively promotes this collective view. The comparison can help articulate some of the tensions between antidiscrimination law and policies promoting the social conditions of equality. I. MANDATORY MATERNITY LEAVE A. Mandatory Maternity Leave in Europe 1. The EU Directive The European Union directive on the “safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding” requires all the Member States to provide at least fourteen weeks of paid maternity leave.1 Of those fourteen weeks, at least two weeks must be compulsory.2 In 2008, the European Commission proposed amending the directive to expand the protections for pregnant workers. The proposal would impose eighteen weeks of paid maternity leave, of which six weeks must be compulsory.3 More recently, the European Parliament proposed going even farther—requiring Member States to provide twenty weeks of paid maternity leave,4 as well as two weeks of fully paid paternity leave.5 The European Parliament’s proposal retains the Commission’s proposal of making six weeks of maternity leave compulsory.6 The European 1. Council directive 92/85/EEC, art. 1, 1992 O.J. (L 348) 1, 2 (EC) (on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding). 2. Id. 3. European Commission, Proposal for a Directive of the European Parliament and of the Council amending Council Directive 92/85/EEC, 2008/0193 (COD), Oct. 3, 2008, art. 1. 4. European Parliament, Report A6-0267/2009 on the proposal for a directive of the European Parliament and of the Council amending Council Directive 92/85/EEC (COM (2008) 0637-C6-0340 – 2008/0193 (COD), at 16. 5. Id. at 12. 6. Id. at16.
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Council has, as of December 2010, rejected the Parliament’s proposals, reverting to the Commission’s proposal.7 Although the proposal remains subject to ongoing debate, it is very possible that EU law will soon require six weeks of mandatory maternity leave. 2. National Examples European countries require “mandatory” maternity leave of varying lengths. In Britain, for instance, the mandatory period is two weeks, the minimum required under the current EU directive. In France, the mandatory period is slightly longer than that currently proposed in the European Union; the law requires women to take eight weeks of leave, two of which must be taken before the baby’s due date. In some EU countries, such as Italy, the compulsory period is even longer, at five months. In Italy, women are legally required to take five months of maternity leave, one to two months before birth, and three to four months after birth. Although the European directive is silent on the legal definition of “compulsory” maternity leave, French law provides an example of how a policy of mandatory maternity leave can be given legal effect. The mandatory rule is addressed to the employer, not the employee. The employer, not the employee, is the subject of the legal prohibition on allowing the employee to work in the eight weeks surrounding childbirth, under Article L. 1225-29 of the Labor Code, two before birth and six following birth. In France, the employer can be subject to criminal fines for violations of Article L. 1225-29. In the United Kingdom, the Employment Rights Act 1996 prohibits the employer from allowing the pregnant employee to work within the two week period of having given birth; employers are fined for violations. This is a summary offense, for which no defenses are available to the employer.8 Furthermore, in France, Article L. 1225-4 of the Labor Code prohibits the dismissal of pregnant employees or employees on maternity leave, with a narrow exception for misconduct “unrelated to the employee’s pregnancy.” Thus, a worker who attempts to work during maternity leave cannot be fired for doing so. The Cour de cassation has held in at least one instance that dismissing an employee for coming into work during her maternity leave violated Article L. 1225-4.9 In Italy, there are similar prohibitions on employing women during the mandatory maternity leave period of five months,10 as well as a ban on firing pregnant women and those who have recently 7. See Council of the European Union, Press Release, 17323/1/10, Employment, Social Policy, Health and Consumer Affairs, Dec. 6-7, 2010, at 9. 8. Employment Rights Act 1996, § 72 (U.K.). 9. Cour de cassation [Cass.] [Supreme court for judicial matters] soc., Dec. 9, 1998, no. 96-43068 (Fr.). 10. Legge 30 dicembre 1971, n. 1204, art. 4 (It.).
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given birth, up until the baby’s first birthday.11 In all these mandatory maternity leave schemes, the legal consequences of noncompliance fall on the employer, not on the employee. 3. Paternalistic Justifications What is the justification for making maternity leave compulsory? The obvious justification sounds in paternalism: as the title of the EU directive suggests, the compulsory maternity leave protects the health and safety of pregnant workers. It ensures that they do not undermine their own health (or that of the baby) by working too close to the time of childbirth, presumably when they should be resting and/or breastfeeding. In proposing the extension of leave by four weeks (including the increase from two to six weeks of compulsory maternity leave), the European Commission noted that a “longer leave will have a positive impact on the mother’s health. It will help women to recover from giving birth and to create a solid relationship with the child.”12 The European Parliament, in registering its revisions to the Commission’s proposed text, added language that reflects this paternalism: “Whereas the vulnerability of pregnant workers, workers who have recently given birth or who are breastfeeding . . . renders necessary the compulsory nature of maternity leave of at least 6 weeks allocated after confinement.”13 Furthermore, the notes justifying this revision indicate: “The minimum post-natal leave must be increased in order to encourage women to breastfeed as long as possible.”14 This justification for mandatory maternity leave may betray the normative understanding that new mothers should rest and breastfeed, regardless of what the woman herself would choose. Within the EU, some dissenters are attacking this paternalistic strand, which may be premised on gender stereotypes. Birgitta Ohlsson, the Swedish Minister for EU Affairs, has publicly opposed the lengthening of mandatory maternity leave from two weeks to six weeks. Emphasizing choice, she called the Commission’s proposal “maternity leave by force”15 and argued that “Europe needs more egalitarian dads, and the Commission’s proposal is sending the wrong signals.”16 11. Legge 30 dicembre 1971, n. 1204, art. 2 (It.). 12. Council of the European Union, Proposal from the European Commission, 2008/0193, Oct. 6, 2008, at 5. 13. European Parliament Report A6-0267/2009, supra note 4, at 16. 14. Id. (translated from the French by the author). 15. Birgitta Ohlsson, “Don’t Force Mothers to Stay at Home,” THE LOCAL, Feb. 25, 2010, available at http://www.thelocal.se/25216/20100225/. 16. Id.
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4. Collective Action Justifications However, mandatory maternity leave should not be seen simply as a policy designed to force a woman to stay home against her wishes, for the sake of her own health, or worse, to tether her breast to the suckling child. Rather, compulsory maternity leave is a regulation of the employer-employee relationship akin to mandatory minimum wage and working hours laws. The purpose is to remove the minimum standard from employer-employee negotiation in recognition of the social and economic pressures faced by employees to agree to terms and conditions that fall below the minimum standard. If women can choose to forgo maternity leave, the employer will favor such women workers over those who take maternity leave. Under such conditions, there is downward pressure on workers to keep their maternity leaves as short as possible. Making some portion of maternity leave mandatory is a counterweight against this downward pressure. A few quick examples illustrate this point. First, in the United States, available data suggests that few women take all the maternity leave available to them, even when it is paid. One empirical study done in California, where paid pregnancy leave is available, found that fifty-two percent of the women surveyed worked up until the time of delivery, and only thirty-two percent took pregnancy leave.17 Employers are experimenting with various incentives to encourage women to return to work as soon as possible following childbirth. One such incentive is to cut the rate of pay for paid leave after the first few weeks of leave.18 How should we interpret women’s choices to work during pregnancy and close to the time of childbirth? Does it reflect the importance of work to women’s dignity and selfworth, or the tragic and undesirable consequence of a competitive labor market structured around male norms? Second, in the United States, a similar dynamic exists with regard to paid vacations, which are obviously not compulsory for workers. A third of American workers decline to take all the (few) paid vacation days that they have earned. Although American workers have no statutory entitlement to paid vacation,19 employers on average allow employees to accrue thirteen paid vacation days per 17. See Sylvia Guendelman et al., Utilization of Pay-in Antenatal Leave Among Working Women in Southern California, 10 MATERNAL & CHILD HEALTH J. 63 (2006). Of non-leave takers, the study suggests “a strong work attachment and fear of sacrificing career advancement opportunities deter such women from taking leave, rather than immediate financial need.” See id. at 71. 18. See Sue Shellenbarger, Downsizing Maternity Leave: Employers Cut Pay, Time Off, WALL ST. J., June 11, 2008, at D1. 19. See Rebecca Ray & John Schmitt, No-vacation nation USA – a comparison of leave and holiday in OECD countries, European Economic and Employment Policy Brief. No. 3 (2007).
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year, which is meager compared to what most European workers get. On average, American workers forgo three of the thirteen days, citing work pressures as the reason.20 Again, is this because American workers really live to work, or because of the adverse social and economic consequences of enjoying leisure? Third, in France, as in many European countries, fathers are entitled to eleven days of fully paid paternity leave. But only two-thirds of French fathers who are eligible take this leave.21 Is this because men would rather work than change diapers, or because there is social pressure on men to work rather than change diapers? In all of these instances of foregoing leave entitlements, there are two competing explanations. The “homo economicus” explanation assumes that human beings live to work. The “social pressures” explanation assumes that human beings work to live, and living includes the satisfactions of family life. If the “social pressures” explanation is accepted, making a form of leave mandatory, whether it is for maternity, paternity, or vacation, is an effective counterweight against the social and economic pressure to forgo leave. Mandatory maternity leave can facilitate the take-up of the leaves following childbirth that many women want and need, but are pressured not to take. 5. Mandatory Maternity Leave as a Gender Equality Measure: Adding Mandatory Paternity Leave Still, thus conceptualized, mandatory maternity leave guarantees that women, but not men, will interrupt their careers if they decide to have children. While facilitating maternity-leave-taking may strengthen women’s long-term attachment to the labor market, these career interruptions will widen the gaps in opportunities and wages between men and women. Making the maternity leave mandatory increases the competitive advantage of those who are ineligible for maternity leave, especially fathers. One solution to this dynamic is to make paternity leave mandatory as well. Indeed, to the extent that the justification for mandatory maternity leave is not merely the woman’s own health, but the health and well-being of the child, there is no reason to limit mandatory leave to mothers. There are obvious health benefits to the child from the presence of a second parent. Fathers, too, face social and economic pressures that prevent them from taking advantage of paternity or parental leaves to which they are statutorily entitled. 20. One study that is often cited in the news is Expedia’s annual Vacation Deprivation Survey, which is the source of these figures. See Expedia.com 2009 International Vacation Deprivation Survey, available at http://www.expedia.com/ daily/promos/vacations/vacation_deprivation/default.asp. 21. Etudes et R´esultats n°442, Cong´e de paternit´e, DREES, novembre 2005, available at http://www.sante.gouv.fr/IMG/pdf/er442.pdf.
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Arguably, it is even more difficult for fathers than it is for mothers to take parental leave, due to the pressure of social norms that assume that fathers are breadwinners, not caregivers. If the law required all fathers to take paternity leave, employers would not be able to persuade male employees to forgo their leaves. Mandatory paternity leave could significantly disrupt the social norms that make it difficult for men to participate in caregiving. In so doing, it could help bring about a more equal distribution of caregiving tasks within the family, which would have significant beneficial consequences for gender equality. Indeed, this line of thinking is now being considered in several European jurisdictions. Last fall, the European Parliament proposed a provision establishing fifteen days of mandatory paternity leave. Its report invoked the following justification: Paternity leave should be established on a binding basis so as to ensure that men will not be made, on account of social pressure, to forgo their entitlement. A signal should be sent to the labour market to the effect that men too have to spend time away from the workplace and their job when they have children. Economic activity must consequently be organised in such a way as to allow for human reproduction, which is a right and responsibility in equal measure for men and women alike, as well as being a pre-eminent social value.22 However, the European Parliament’s paternity leave proposals have been rejected by the European Council on the grounds that they do not belong in a directive on the safety and health of pregnant workers and women who have recently given birth or are breastfeeding. It remains to be seen, however, whether such proposals might be resuscitated in future discussions of the parental leave and employment equality directives. More recently, in France, unions are calling for the reform of paternity leave as a means of addressing gender inequality in employment. The Conf´ed´eration fran¸caise d´emocratique du travail (CFDT), one of the largest French trade unions, has proposed that paternity leave be extended to two months in order to combat the disadvantages sustained by women in the labor market,23 disadvantages that they see as directly attributable to maternity leave. The availability of long maternity leaves to women incentivizes discrimination against women, and the actual taking of these leaves causes women to interrupt their work in ways that affect their careers and 22. European Parliament Report A6-0267/2009, supra note 4, at 14. 23. See Instaurer un cong´e de paternit´e de deux mois, LE MONDE, Mar. 7, 2011, available at http://www.lemonde.fr/idees/article/2011/03/07/instaurer-un-congepaternite-de-deux-mois_1489354_3232.html.
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salaries.24 The Mouvement des entreprises de France (MEDEF), the largest organization of employers, has announced its support for making paternity leave (now at eleven days) mandatory for all fathers upon the birth of a child.25 Both CFDT and MEDEF have laid out a gender-equality based argument for the reform of paternity leave. But neither CFDT nor MEDEF are proposing gender-neutral parental leave rights equally available to or required by both men and women. CFDT proposes a longer paternity leave, but at two months, it would still be two months shorter than the current maternity leave entitlements. MEDEF’s proposal is to begin by making the existing paternity leave entitlement (eleven days) a mandatory leave, to encourage young parents to work towards a more egalitarian division of caregiving work than that which currently exists.26 Since both the CFDT and MEDEF are among the major social partners consulted by the state in shaping employment policy, the French Labor Minister, Xavier Bertrand, has expressed enthusiasm about considering these proposals.27 Until last fall, the ECJ has not viewed disparities between maternity and paternity leaves to violate the principle of equal treatment of men and women. In 1984, the ECJ rejected a German man’s challenge to the German maternity leave law, which required new mothers to take eight weeks of compulsory leave and then permitted them to take an additional four months’ leave. The plaintiff, a new father, claimed that the optional four months were for caregiving, and not for the protection of a woman’s health after pregnancy and childbirth. The ECJ held that “it is legitimate to protect the special relationship between the woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.”28 24. See id. 25. Laurence Parisot, the first woman president of MEDEF, announced this proposal in an interview with the fashion magazine Elle. See Val´erie Toranian & Elvire Emptaz, Laurence Parisot: “Aujourd’hui, je suis plus f´eministe que jamais,” ELLE, Mar. 7, 2011, available at http://www.elle.fr/Societe/Interviews/Laurence-ParisotAujourd-hui-je-suis-plus-feministe-que-jamais-1519466#. See also Marie Bartnik, Le Medef plaide pour un cong´e de paternit´e obligatoire, LE FIGARO, Mar. 11, 2011, available at http://www.lefigaro.fr/vie-entreprise/2011/03/09/09008-20110309ARTFIG006 12-vers-un-conge-paternite-reforme.php. 26. See id. 27. Olivier Beaumont, Catherine Gast´e-Peclers et Henri Vernet & Xavier Bertrand, “Il faut savoir garder son sang-froid,” LE PARISIEN, Mar. 6, 2011, available at http://www.leparisien.fr/politique/xavier-bertrand-il-faut-savoir-garder-son-sangfroid-06-03-2011-1345224.php. 28. Case 184/83, Ulrich Hofmann v. Barmer Ersatzkasse [1986] 1 CMLR 242, 265 (1984).
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However, in September 2010, the ECJ invalidated, on grounds of equal treatment, a Spanish law that treated new mothers and fathers differently with regard to working time accommodations for feeding the baby.29 Under the Spanish “breastfeeding leave” law, women were entitled to one hour off work per day to feed a baby under nine months of age. Since many babies this age are bottle-fed and not breast-fed, the right was extended to fathers in 2007. However, the law entitled women to this paid leave regardless of the employment status of the father, but it only allowed fathers to take it if the mother was also employed. The ECJ held that this difference in treatment was “liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties.”30 The worry was that such a policy could disadvantage the employment opportunities of the plaintiff’s wife, who was self-employed: to refuse entitlement to the leave . . . to fathers . . . on the sole ground that the child’s mother does not have that status, could have as its effect that a woman, such as the mother of Mr Roca Alvarez’s child, would have to limit her self-employed activity and bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden.31 It was not simply because the “breastfeeding leave” law treated men and women differently, but because this particular disparity could worsen women’s employment opportunities, that the policy violated the principle of equal treatment. The ECJ noted that the policy cannot be considered to be a measure eliminating or reducing existing inequalities in society . . . nor as a measure seeking to achieve substantive as opposed to formal equality by reducing the real inequalities that can arise in society . . . . to prevent or compensate for disadvantages in the professional careers of the relevant persons.32 If it could, the policy would not violate the various provisions of European equality law. Thus, European antidiscrimination law is skeptical of stereotyping, but leaves room for generalizations that could be deployed to reduce gender inequality.
29. Case C-104/09, Pedro Manuel Roca Alvarez v. Sesa Start Espana ˜ [2010] ECR Celex No. 609J0104. 30. See id.,¶ 36. 31. Id., ¶ 37. 32. Id., ¶ 38.
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B. Mandatory Maternity Leave in the United States The policy of mandatory maternity or paternity leave is a form of labor market regulation that can promote gender equality if properly designed. It may well be that the European approach of paid mandatory maternity and paternity leaves of different lengths does more to promote gender equality in the workplace than the unpaid and short gender neutral parental leave guaranteed under U.S. law. However, experimentation with such policies is significantly constrained in the United States due to the unique evolution of U.S. antidiscrimination law. Mandatory maternity leave exemplifies the paradigmatic violation of the equal protection-substantive due process synthesis that many scholars have identified as U.S. antidiscrimination doctrine. U.S. antidiscrimination law encompasses the individual’s freedom from the paternalistic constraints of gender stereotypes,33 a freedom that is also protected by substantive due process doctrine. Women’s equality claims in the United States have a long history of being intertwined with anti-paternalistic liberty claims,34 leading many scholars to notice the “legal double helix” of equal protection and substantive due process.35 Mandatory maternity leave is so counter to this construction of gender equality that the proposals currently being debated in the European Union could not plausibly be entertained in the United States. Of course, a neat comparison of mandatory maternity leave in Europe and the United States is not really possible. European-style mandatory maternity leave—in which the employee is fully paid, with penalties imposed on the employer by the state has never been attempted in the United States. American-style mandatory maternity leave consisted of employer policies that required pregnant women to go on unpaid leave from their fifth month of pregnancy until several weeks after childbirth.36 Failure to comply could result in termination of the employee.37 These policies obviously burdened, 33. For a discussion of the consequences of strong anti-stereotyping norms for work-family reconciliation policies in the United States as compared to European jurisdictions, see Julie C. Suk, Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict, 110 COLUM. L. REV. 1, 54-68 (2010). 34. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 380-81 (1985); Reva B. Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261 (1992). Kenji Yoshino has recently argued that equality of gays and lesbians is now being protected through substantive due process doctrine. Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747 (2011). 35. I borrow this terminology from Laurence H. Tribe, Lawrence v. Texas: The “Fundamental Right” that Dare Not Speak Its Name, 117 HARV. L. REV. 1893, 1898 (2004). 36. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632 (1974). 37. A related policy included the termination of pregnant employees if they refused to have abortions. See, e.g., Struck v. Sec’y of Def., 409 U.S. 1071 (1972). For an exploration of the U.S. anti-stereotyping doctrine as it was developed by Ruth Bader
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rather than facilitated, women’s employment opportunities. However, the liberty-based substantive due process theory deployed to reject such policies remains in equal protection and Title VII doctrine, and this theory protects individuals’ rights to choose employment options, free of traditional gender stereotypes. The European proposal of mandatory maternity and paternity leaves of unequal lengths would obviously go against this American constitutional orthodoxy of sex equality. 1. Mandatory Maternity Leave and Substantive Due Process In Cleveland Board of Education v. LaFleur, the U.S. Supreme Court struck down a public school district’s policy of requiring pregnant school teachers to go on unpaid leave for seven months. Although the Sixth Circuit had rejected the policy based on equal protection grounds, the Supreme Court developed a substantive due process theory to invalidate mandatory maternity leave.38 Under this logic, mandatory maternity leave is invalid because there is a right “to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”39 The mandatory maternity leave rule was problematic because “[t]here is no individualized determination by the teacher’s doctor— or the school board’s—as to any particular teacher’s ability to continue her job.”40 Because “the ability of any particular pregnant woman to continue at work past any fixed time in her pregnancy is very much an individual matter,”41 the Due Process Clause was violated when the state presumed the generalization that pregnant women are incapacitated.42 The Court’s substantive due process theory can lead to two different perspectives on European-style mandatory maternity leave. On the one hand, the Court suggests that the problem with mandatory maternity leave is that it imposes an overbroad generalization on individuals. Although some individual pregnancies will require seven months of leave, others may require far less, and it should be up to individual women and their families to decide how much time off of work is the right amount. If the individual woman wants to work and is having an uncomplicated pregnancy, she should be allowed to work so long as her doctor approves. By this logic, European-style Ginsburg in the briefs in that case, see Neil S. Siegel & Reva B. Siegel, Struck by Stereotype: Ruth Bader Ginsburg on Pregnancy Discrimination as Sex Discrimination, 59 DUKE L.J. 771, 778-87 (2010). 38. LaFleur, 414 U.S. at 637. 39. Id. at 640. 40. Id. 41. Id. at 645. 42. Id. at 646.
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mandatory maternity leaves are problematic as well, because they prevent all women from working around the time of childbirth. While the current European directive only requires two weeks of mandatory maternity leave, which may seem insignificant, French law requires eight weeks, Italian law requires five months, and the European Commission favors six weeks in its current proposal. On the other hand, the LaFleur Court’s substantive due process theory rejects the imposition of generalizations about pregnancy (“irrebuttable presumptions”) on individuals because they “unduly penalize a female teacher for deciding to bear a child.”43 Note that the concern is about laws that burden the exercise of one’s fundamental right to bear children. Mandatory maternity leave increases a woman’s costs in bearing children—by making it impossible for her to work for pay as much as she wants to. On this logic, it is quite possible that if the maternity leaves at issue were paid, rather than unpaid, and much shorter than seven months (for example, six weeks), it would be harder to view them as “unduly penalizing” the exercise of childbearing rights. At the same time, it is clear that the penalty consists of depriving the woman of her opportunity and choice to work. Although the LaFleur decision suggests that the fundamental right at stake is the right to bear children, its construction of this right necessarily also protects the woman’s right to choose to work. Prior to LaFleur and continuing to more recent Title VII cases, American gender equality jurisprudence has asserted this right.44 2. The Equality-Liberty Synthesis in American Antidiscrimination Law Since LaFleur, equal protection and Title VII doctrine have evolved to invalidate state or employer action that relies on overbroad generalizations about the different roles of men and women.45 This is why any form of mandatory maternity leave, even if paid, would be anathema to American equality law. Indeed, the LaFleur majority mentions in passing that mandatory maternity leave can be presumed to violate Title VII, a statute which did not in 1974 apply to public employers. Mandatory maternity leave is sex discrimination because it forces the mother, but not the father, to take leave upon the birth of a child. Under the Equal Protection Clause, such differential treatment on the basis of sex is subject to intermediate scrutiny; 43. Id. at 648. 44. U.S. sex equality law evolved in repudiation of various precedents that restricted women’s choices to work, most significantly Bradwell v. Illinois, 83 U.S. 130 (1872). See Frontiero v. Richardson, 411 U.S. 677, 685 (1973). 45. See Mary Anne Case, “The Very Stereotype the Law Condemns: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 CORNELL L. REV. 1447, 1466 (2000) (“[T]he Court insisted on individualized adjudication rather than reliance on overbroad presumptions.”).
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it is presumptively invalid in the absence of an “exceedingly persuasive justification.”46 Since United States v. Virginia in 1996, sex classifications do not meet the constitutional standard when they are based on gender stereotypes, or overbroad generalizations about men and women that “create or perpetuate the legal, social, and economic inferiority of women.”47 In the United States, the generalization that the domestic sphere “properly belongs to the domain and functions of womanhood”48 is the paradigmatic instance of an impermissible stereotype, since it was used to perpetuate women’s legal, social, and economic inferiority. This is how American equality law has arrived at the conclusion that the generalization linking women to caregiving necessarily perpetuates women’s inferiority. In 2003, the Supreme Court suggested in Nevada v. Hibbs that it would violate Equal Protection for any state to offer maternity leaves to women, but not to men, and upheld federal gender-neutral unpaid family and medical leave as a remedy for this purported constitutional violation.49 Under antidiscrimination doctrine, then, one can easily argue that mandatory parental leave of equal lengths for both parents would be consistent with the Equal Protection Clause and Title VII. But this is where LaFleur’s substantive due process analysis would kick in. If the state were to require men to take six weeks of paternity leave, paid or unpaid, some men would surely challenge this requirement as an undue penalty for exercising thier procreative rights. Ironically, American constitutional law has repudiated Lochner’s constitutionalization of the “homo economicus” contractual freedom to work, but individual rights to choose to work, free of social expectations such as gender roles, has been quietly protected.50 Note that none of the mandatory paternity leave proposals currently feasible in Europe propose gender-neutral parental leaves, or mandatory leaves of equal length for mothers and fathers. The mandatory paternity leave strategy is incrementalist—it attempts to get fathers to take at least two weeks off of work upon birth of a child, 46. See Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982). 47. United States v. Virginia, 518 U.S. 515, 534 (1996). 48. Bradwell v. Illinois, 83 U.S. 130, 141 (1872). 49. Nevada v. Hibbs, 538 U.S. 721, 731-32 (2003). 50. As is well known, Lochner v. New York, 198 U.S. 45 (1905) invalidated state legislation mandating maximum hours of work for bakers on the grounds that the law violated the freedom of contract, a freedom that was read into the Fourteenth Amendment. Lochner is widely acknowledged to have been superceded by West Coast Hotel v. Parrish, 300 U.S. 379 (1937), which upheld a law requiring the payment of a minimum wage to women and minors. At the same time, recent gender stereotyping cases have called into question the validity of woman-protective labor legislation such as that upheld by West Coast Hotel v. Parrish. See, e.g. Hibbs, 538 U.S. at 731-32. The Hibbs Court noted that the history of sex discrimination in the United States consisted of the limitation of women’s employment opportunities by reference to the gender stereotypes of women as mothers.
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which will help gradually change the assumption that only mothers are suited for caregiving. Only when this social assumption has changed can legal institutions follow with gender-neutral mandatory leaves. However, the incrementalist position begins by accepting, perhaps embracing, the traditional different gender roles of men and women in the family. This goes against the clearly established antistereotyping principle in American sex equality law, which prohibits the state from enforcing or perpetuating these traditional sex roles.51 European-style mandatory maternity leave (with or without mandatory paternity leave) would disturb the American hybrid substantive due process-equal protection constitutional norm. This hybrid norm is not merely an outdated artifact of the 1970s; it is enjoying a resurgence in the form of substantive due-process protections for gay rights. Kenji Yoshino has noted that the equality of gays and lesbians is now being protected through liberty-based substantive due process claims, rather than Equal Protection claims.52 Liberty-based dignity is the “new equal protection.”53 But regardless of the formal legal characterization, the intertwining of liberty and equality has always infused U.S. antidiscrimination law, particularly its challenges to labor regulations protecting women. This hybrid norm reflects the understanding that the state should not impose a particular vision of the good life on individuals in a pluralistic society. The state cannot promote work-family balance by making or encouraging women to work less in order to spend more time at home. This pluralistic outlook has played a significant role not only in invalidating laws that reinforce women’s traditional role as mothers, but also in eroding mandatory retirement. II. MANDATORY RETIREMENT In his dissenting opinion in LaFleur, then-Justice Rehnquist made a connection between mandatory maternity leave and mandatory retirement. Justice Rehnquist noted “the jeopardy in which the Court’s opinion places longstanding statutes providing for mandatory retirement of government employees.”54 Rehnquist took issue with the LaFleur majority’s insistence on pregnant employees’ rights to individualized determinations about their capacity to work: Hundreds of years ago in England, before Parliament came to be thought of as a body having general lawmaking power, 51. See Siegel & Siegel, supra note 37, at 779-80; Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. REV. 83, 121 (2010). 52. Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 776-87 (2011). 53. Id. 54. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 659 (1974) (Rehnquist, J., dissenting).
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controversies were determined on an individualized basis without benefit of any general law. Most students of government consider the shift from this sort of determination, made on an ad hoc basis by the King’s representative, to a relatively uniform body of rules enacted by a body exercising legislative authority, to have been a significant step forward in the achievement of a civilized political society.55 Justice Rehnquist noted that regulations must draw lines which “might prove arbitrary in individual cases.”56 He noted that, in addition to the substantive due process right to bear children, the Court had long recognized a substantive due process right to pursue an occupation, “presumably on the same lofty footing as the right to choice in matters of family life.”57 Indeed, one has to assume the importance of the right to an occupation in order to make sense of the majority’s holding that the mandatory maternity leave unduly penalized the exercise of the right to bear children. The penalty is “undue” precisely because it burdens another fundamental right—the right to pursue one’s occupation. Justice Rehnquist argued that “the Court will have to strain valiantly in order to avoid having today’s opinion lead to the invalidation of mandatory retirement statutes for government employees.”58 Mandatory retirement did end in the United States, not by judicial review, but by legislation in 1986.59 More recently, courts have invalidated many early retirement incentive programs that are designed to induce retirement at a particular age.60 The legislative history of the 1986 Amendments to the Age Discrimination in Employment Act and courts’ age discrimination cases reflect the operation of the hybrid equality-liberty norm in invalidating agebased involuntary retirement. This approach is in stark contrast to age discrimination law in Europe, where mandatory retirement not only coexists with age discrimination law, but can itself be understood as promoting the equality of vulnerable labor market participants. 55. Id. 56. Id. 57. Id. 58. Id. 59. Initially, the ADEA of 1967 only protected workers up until the age of sixtyfive, so it was understood that mandatory retirement at sixty-five was permitted. See Age Discrimination in Employment Act § 12, 81 Stat. at 604 (codified as amended at 29 U.S.C. § 631(a)). In 1978, Congress raised the upper age limit to seventy, and in 1986, the statute protected all workers over the age of forty, which ended mandatory retirement at any set age, except in narrow circumstances prescribed by the statute. See Age Discrimination in Employment Act of 1986, Pub. L. No. 99-592, § 2, 100 Stat. 3342 (1986) (codified as amended in 29 U.S.C. § 631). 60. See, e.g., Solon v. Gary Community School Board, 180 F. 3d 844 (1999).
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A. Mandatory Retirement as Age Discrimination in the United States 1. The ADEA The Age Discrimination in Employment Act of 1967 prohibits employers from discriminating against an individual “because of such individual’s age.”61 Paralleling the language of Title VII, the ADEA makes it unlawful to “fail or refuse to hire or to discharge any individual or otherwise discriminate,”62 or to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee,”63 because of age. In light of these parallels, the question of whether these provisions should be interpreted in the same way as similar language in Title VII have plagued courts in many cases.64 The Supreme Court has sustained the Title VII analogy in some instances, for example, by allowing a disparate impact cause of action under the ADEA.65 But in other instances, such as employer liability for mixed-motives, it has declined to follow the Title VII approach.66 Nonetheless, two central features of Title VII sex discrimination law have been transposed into the age discrimination context: the prohibition on classifications, subject to a bona fide occupational qualification (BFOQ) defense,67 as well as the anti-stereotyping norm.68 In the age discrimination context, these two ideas converged to end employers’ policies of requiring all employees to retire at the age of sixty-five, regardless of individual determinations of the employee’s desire or ability to continue working.69 2. The Abolition of Mandatory Retirement In 1981, a Labor Department Report on “Abolishing Mandatory Retirement” linked its defense of eliminating mandatory retirement 61. 29 U.S.C. § 623(a)(1). 62. 29 U.S.C. § 623(a)(1). 63. 29 U.S.C. § 623 (a)(2). 64. See, e.g., Lorillard v. Pons, 434 U.S. 575, 584 (1978) (noting differences in Title VII and ADEA with regard to remedies and procedures); Meacham v. Knolls Atomic Power Lab, 554 U.S. 84 (2008) (noting different language in ADEA and Title VII with regard to defenses). 65. See Smith v. City of Jackson, 544 U.S. 228 (2005). 66. See Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009). 67. See 29 U.S.C. § 623(f)(1). 68. See Hazen Paper v. Biggins, 507 U.S. 604, 610-11 (“Congress’ promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes.”). 69. As the Supreme Court noted in Western Airlines v. Criswell, “employers are to evaluate [older] employees . . . on their merits and not their age.” See Western Airlines, Inc. v. Criswell, 472 U.S. 400, 422 (1985).
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to the project of social security reform. The “overall message” of the report was as follows: Older workers are caught in the jaws of a vise, in which mandatory retirement policies, work disincentives in pension plans and pressures to get out of the workforce early exert force in one direction, while inflation and threatened retirement benefit reductions exert pressure in the other. Removing the obstacles to employment would allow many older workers to continue in their employment or return to work, while across-the-board Social Security benefit cuts would do very little, aside from increasing the hardship for millions of retirees.70 The abolition of mandatory retirement was premised on the belief that many older workers were perfectly capable of continuing to work, and that the national economy and the Social Security system would benefit from their continued labor force participation. Proponents of abolishing mandatory retirement called for the eradication of “negative stereotypes” based upon age, as well as the parallels between “ageism” and racism and sexism.71 In arguing against the dismissal of qualified employees at age sixty-five or seventy solely based on age, they noted that dismissals based on qualifications at any age were perfectly acceptable: “You mustn’t let the criterion of whether or not you employ that individual or keep him employed be his age. It’s his qualifications, his punctuality, his reliability, his responsibility, his capacity.”72 In the United States, employers can easily dismiss individual workers who are lacking in any of these qualities, due to the enduring doctrine of employment at will and the limited nature of the exceptions to this doctrine.73 The reasoning was that an older worker’s exit from the labor market should either be voluntary or based on individual work-related determinations, rather than on age. Due to the different ways in which individuals age, using age as the criterion for involuntary retirement amounts to a firing based on generalizations about older workers’ productivity, which is precisely what the ADEA prohibits.74
70. Staff of H. Comm. on Education and Labor, Abolishing Mandatory Retirement: Implications for American and Social Security of Eliminating Age Discrimination in Employment, 97th Cong. (Comm. Print 1981). 71. Age Discrimination in Employment Amendments of 1983: Hearing Before the House Subcommittee on Employment Opportunities, 98th Cong. (statement of Rep. Claude Pepper, Member, H. Comm. on Education and Labor). 72. Id. at 10. 73. See Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 MICH. L. REV. 8 (1993) 74. See id. at 43.
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3. Consequences of Ending Mandatory Retirement Although the ADEA prohibits mandatory retirement as a form of dismissal because of age, the statute does not prohibit dismissals of older workers based on other considerations. In numerous cases over the last twenty years, courts have held that the firing of an older worker based on a various non-age considerations, including the salary cost differential between the older worker and a younger worker, does not violate the ADEA.75 In fact, the abolition of mandatory retirement creates incentives for employers to engage in behaviors that adversely affect older workers without constituting age discrimination. The ADEA urges employers to make employment decisions based on individualized determinations, rather than age. However, is a system of individualized terminations for cause better for older workers than a system of mandatory retirement? In a 1979 article, economist Edward Lazear put forth the lifecycle theory of mandatory retirement.76 This theory explains why an employee’s wage does not fluctuate throughout one’s career in response to actual productivity; it tends to rise consistently until retirement. The employee receives a wage premium (more than his marginal productivity) at the beginning and end of his career, but is paid less than his marginal productivity in mid-career. The wage premium at the end of one’s career can thus be viewed as deferred compensation for the employee’s mid-career productivity. This wage arrangement, known as the “implicit contract,” is desirable for the employer because employees are less likely to shirk in mid-career, and more likely to increase their productivity to a level above wages, to receive deferred compensation when they are older. The “implicit contract” is beneficial to the employee as well, because the employee’s career wage is higher under this arrangement than it would be if his wage corresponded to actual productivity throughout his career.77 Mandatory retirement was an essential feature of the “life-cycle” or “implicit contract” model of employment,78 which has been in de75. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112 (2d Cir. 1991); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1126 (7th Cir. 1994); Bialas v. Greyhound Lines, Inc., 59 F.3d 759, 764 (8th Cir. 1995); Snow v. Ridgeview Med. Ctr., 128 F.3d 1201, 1208 (8th Cir. 1997); Mullin v. Raytheon Co., 164 F.3d 696, 697-98 (1st Cir. 1999). For a discussion of courts’ tendency to permit cost considerations under age discrimination statutes, see Lee Franck, Note, The Cost to Older Workers: How the ADEA Has Been Interpreted to Allow Employers to Fire Older Employees Based on Cost Concerns, 76 S. CAL. L. REV. 1409 (2003). 76. Edward P. Lazear, Why Is There Mandatory Retirement? 87 J. POL. ECON. 1261 (1979). This theory is widely accepted by legal scholars. See, e.g., Schwab, supra note 73; Samuel J. Issacharoff & Erica Worth Harris, Is Age Discrimination Really Age Discrimination? The ADEA’s Unnatural Solution, 72 N.Y.U. L. REV. 780 (1997). 77. See Lazear, supra note 76, at 1264-65. 78. Id. at 1274.
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cline since the 1970s.79 Employers pay employees a wage premium towards the end of their careers on the assumption that the employment relationship will come to an end at a predictable fixed point in time.80 When there is no fixed expiration date for the employment relationship, the relationship must come to an end by some other means. Employers can engage in individualized determinations of each worker’s capacity to work to determine whether, and at what wage, to retain him. The ADEA tells employers to do this, instead of relying on age generalizations, since there is great variation in the way people age. But this creates a situation in which the older worker’s involuntary exit from the labor market is precipitated by an assessment of the individual’s decline in productivity, rather than a social custom of not working past a certain age. The life-cycle model is optimal not only from the standpoint of the employee’s wages; it also sustains a working life that does not end with the humiliation of the departing worker. B. Mandatory Retirement in Europe 1. Palacios European law has taken a different approach to mandatory retirement. Recent analyses of jurisprudence, both in the ECJ and in domestic courts, suggest that mandatory retirement is an essential feature of labor market policies that promote equality. Mandatory retirement in the context of life-cycle contracts is not only Pareto optimal, as the American economists suggest, but it also functions to help sustain a social framework of equality and dignity. Under certain cultural, political, and institutional conditions, mandatory retirement protects the dignity of older workers as well as the employment opportunities for the least advantaged labor market participants. In litigation over the last five years, the question arose whether mandatory retirement policies, whether adopted by employers or the state, are consistent with age discrimination prohibitions in EU law. The EU directive on equality in employment requires member states to prohibit age discrimination, but Recital 14 explicitly provides that “[t]his Directive shall be without prejudice to national provisions laying down retirement ages.”81 Recital 25 states: 79. See Katherine V.W. Stone, The New Psychological Contract: Implications of the Changing Workplace for Labor and Employment Law, 48 UCLA L. REV. 519, 541 (2001). 80. See Samuel Issacharoff, Contractual Liberties in Discriminatory Markets, 70 TEX. L. REV. 1219, 1248 (1992). 81. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Official Journal L 303, 02/12/2000, p. 0016.
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The prohibition of age discrimination is an essential part of meeting the aims set out in the Employment Guidelines and encouraging diversity in the workforce. However, differences in treatment in connection with age may be justified under certain circumstances and therefore require specific provisions which may vary in accordance with the situation in the Member States. It is therefore essential to distinguish between differences in treatment which are justified, in particular by legitimate employment policy, labour market and vocational training objectives, and discrimination which must be prohibited.82 Similar language is repeated in Article 6, which permits “reasonably justified” differences of treatment based on age, including “legitimate employment policy, labour market and vocational training objectives,” as long as “the means of achieving that aim are appropriate and necessary.”83 In 2007, the European Court of Justice rejected a claim challenging a Spanish employer’s mandatory retirement policy as age discrimination. In F´elix Palacios de la Villa v. Cortefiel Servicios SA, the ECJ upheld a Spanish statute that authorizes collective agreements to provide for automatic termination of the employment contract when the employee reaches the age of sixty-five. In the proceedings, the Spanish statute was characterized as “part of a national policy seeking to promote better access to employment, by means of better distribution of work between the generations.”84 The Spanish court, in referring the case to the ECJ, had noted that the compulsory retirement of workers who have reached a certain age was introduced into Spanish legislation in the course of 1980, against an economic background characterized by high unemployment, in order to create, in the context of national employment policy, opportunities on the labour market for persons seeking employment.85 It concluded that compulsory retirement in Spain was in the “interests of promoting employment,” and that the “legitimacy of such an aim of public interest cannot reasonably be called into question.”86 The ECJ noted that a “high level of employment is one of the ends pursued both by the European Union and the European Community.”87 82. Id. 83. Id., art 6. 84. Case C-411/05, F´elix Palacios de la Villa v. Cortefiel Services SA [2007] ECRI8531, ¶ 53. 85. Id., ¶ 58. 86. Id., ¶ 64. 87. Id.
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The legitimacy of compulsory retirement did not depend solely on the legitimacy of creating employment opportunities for (younger) workers entering the labor market. The Court noted that national measures could not “go beyond what is appropriate and necessary to achieve the aim” articulated. Thus, the ECJ opined: The measure cannot be regarded as unduly prejudicing the legitimate claims of workers subject to compulsory retirement because they have reached the age limit provided for; the relevant legislation is not based only on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensation by way of a retirement pension at the end of their working life, such as that provided for by the national legislation at issue in the main proceedings, the level of which cannot be regarded as unreasonable.88 Mandatory retirement is not construed as a significant burden for older workers, in light of the existence of national legislation providing for adequate pensions. Nonetheless, the ECJ has left it to national courts to determine the circumstances under which mandatory retirement schemes would be deemed a proportionate means of achieving a legitimate goal. Public or employer policies of setting mandatory retirement ages must always be justified by reference to a “public interest” goal; they cannot be justified simply by reference to private business interests in profits. 2. Seldon The public interest goals that have been determined to justify mandatory retirement include equal employment opportunity. In the Palacios case, mandatory retirement was justified as a strategy to combat high unemployment, as it would create more opportunities in the labor market for workers who tend to be less advantaged than the workers to whom mandatory retirement would be applied. Recently, in the United Kingdom, the case of Seldon v. Clarkson Wright & Jakes raised the question of whether a law firm’s policy of mandatory retirement was consistent with age discrimination law. Following the ECJ’s instruction, the court considered whether a firm’s policy of retiring partners at age sixty-five was a proportionate means of achieving a legitimate goal. In this case, it was successfully argued that mandatory retirement promotes the dignity of older workers. The law firm argued, inter alia, that the policy of mandatory retirement limited the need to expel partners by way of performance management, thus contribut88. Id., ¶ 73.
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ing to the congenial and supportive culture of the firm. The Court of Appeal noted: It seems to me that an aim intended to produce a happy workplace has to be within or consistent with the government’s social policy justification for the regulations . . . [I]t may be thought better to have a cut-off age rather than force an assessment of a person’s falling off in performance as they get older . . . [I]t is a justification for having a cut-off age that people will be allowed to retire with dignity. To have such a policy requires a cut-off age which some when they reach it will think too low but it does not follow that it is not justified to have a cut-off age.89 The Employment Appeal Tribunal had earlier noted that the “congenial and supportive culture” of a firm was maintained because “an underperforming partner did not suffer the indignity of being expelled for poor performance.” So construed, mandatory retirement is a social policy that promotes equal dignity, even though it does so by limiting the choice of those who are willing and able to work indefinitely. Furthermore, it is not merely a way of optimizing each individual’s career wage, as the economic life-cycle model predicts. It is primarily a way in which a democratic state effectuates its citizens’ shared substantive conception of what it means to age and exit from the labor market with dignity. A new statute in the United Kingdom is phasing out the default retirement age as of October 2011.90 This means that an employer will no longer be able to require employees to retire at age sixty-five (or any age) unless a mandatory retirement age can be objectively justified.91 Objective justification, following European law, requires that the mandatory retirement policy has a legitimate aim, and that mandatory retirement is a proportionate means of achieving that legitimate aim. Cases like Seldon may provide some guidance on the question of “objective justification.” III. STEREOTYPES, LIBERALISM,
AND THE
LIFE CYCLE
Mandatory maternity leave and mandatory retirement are at odds with the anti-stereotyping norm that is central to American gender and age discrimination law. These instances of involuntary detachment of the employee from the labor market are necessarily 89. Seldon v. Clarkson Wright & Jakes [2011] All ER 770. 90. The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011, Statutory Instruments 2011 No. 1069, Apr. 6, 2011 (U.K.). 91. The Employment Equality (Age) Regulations of 2006, Statutory Instruments 2006, No. 1031, Regulation 3 (U.K.).
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premised on normative, arguably paternalistic, judgments about the proper role of work in the lives of new mothers and old persons. In the United States, restricting an individual’s choice to work based on generalizations about whether, when, and how mothers or older people should work is “stereotyping,” a significant instance of discrimination. Yet, in Europe, the state pursues equality by promoting a normative vision of the ideal life cycle, one which involves balancing work with other worthwhile pursuits, such as parenting (and mothering in particular), vacations, and leisure in old age. Regulations aim to make this life cycle available to all, even if it requires restricting some individuals’ choices. The state imposes on all the generalization that the ideal employee’s life cycle consists of: entry into the labor market at a young age, bearing and raising children during one’s working life, retiring in one’s mid-sixties, after which, perhaps, one can help care for one’s grandchildren. As societies become increasingly pluralistic, such normative visions are less shared and the state’s promotion of them seems injurious to those who reject the traditional roles assigned to women and older people.92 At the same time, abandoning these traditional life-cycle policies can exacerbate inequality by disadvantaging women and younger workers, especially minorities facing the most significant barriers to entry in the labor market, while undermining the dignity of older workers upon their exit from the labor market. In a pluralistic society, ideas of what it means to live a good life are contested as well as shared. A good life need not include mothering—or parenting, regardless of gender. Thus, a pluralist would naturally wonder why the state subsidizes the reconciliation of working and parenting—especially mothering—while doing nothing to mitigate the conflicts between working and other worthwhile life pursuits.93 For those who live to work, a good life may not include retirement. The substantive due process-antidiscrimination synthesis in the United States has generated a concept of equality that prevents the state from interfering with individuals’ ability to make these choices for themselves, especially if the state must restrict the individual’s choice to work. It is closely aligned with Ronald Dworkin’s account of “equal concern and respect.”94 This account of equality “supposes that political decisions must be, as far as is possible, independent of any particular conception of the good life, or of 92. See CLARE MCGLYNN, FAMILIES AND THE EUROPEAN UNION: LAW, POLITICS, AND PLURALISM 99-111 (2006) (criticizing the ECJ’s maternity leave jurisprudence on the grounds that it reproduces traditional ideologies of motherhood and fatherhood). 93. See, e.g., Mary Anne Case, How High the Apple Pie? A Few Troubling Questions About Where, Why, and How the Burden for Children Should be Shifted, 76 CHICAGO-KENT L. REV. 1753, 1767 (2001). 94. See RONALD DWORKIN, A MATTER OF PRINCIPLE 190 (1985).
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what gives value to life.”95 U.S. antidiscrimination cases have questioned the legitimacy of state policies that impose a normative vision of how one should live on individuals who may resist that vision. In European countries, by contrast, states have traditionally pursued equality, not through the enforcement of individual rights to be free of collective social norms, but by promoting a common culture of equality. Mandatory maternity leave and mandatory retirement are examples of this. With regard to motherhood and aging, the state does not say, “Different strokes for different folks.” Rather, it makes some people retire before they want to, so that everyone else can retire with dignity. It makes some women stay home with their babies when they might rather be working, so that everyone else can reconcile work with family life. CONCLUSION Because the practices that cause inequality are complex, the pursuit of equality may require experimentation that goes beyond the negative prohibition of discrimination. Accordingly, the legal prohibitions of discrimination should be construed to make room for a wide range of policy options. Some policies may be needed to counter the inequalities resulting from the lack of collective action on matters like maternity and paternity leave. Yet, anti-stereotyping doctrine, as it has evolved in the United States, protects the individual liberty to be free from the types of generalizations that sustain the social frameworks of equality in European countries. As U.S. antidiscrimination law forges forward in strengthening the substantive due process-equal protection synthesis, and European law strengthens individual rights against discrimination,96 there will be difficult tradeoffs between an equality law focused on combating stereotypes and an equality law that combats the totality of social, economic, and cultural forces that produce inequality.
95. Id. at 191. 96. See Bruno De Witte, From “Common Principle of Equality” to “European Antidiscrimination Law,” 53 AMERICAN BEHAVIORAL SCIENTIST 1715 (2010).