Abstract

What is the caregiver conundrum? Simply put, it is the difficulty caregivers face when trying to balance their caregiving responsibilities with their work responsibilities. Caregivers face conflicts both at home and at work when work responsibilities clash with responsibilities at home. In many cases, these conflicts create serious hardships on the caregivers and their loved ones.

Finding a solution to this pressing problem is puzzling because courts and scholars disagree on the scope of the problem. Thus far, courts only protect employees who experience caregiver discrimination because the employer incorrectly assumes the employee will not meet the workplace requirements. In other words, courts only protect "ideal workers," who never miss work because of caregiving responsibilities. But for many women who cannot conscientiously delegate all of their childcare, even if they have the financial means to do so, and for other women who do not have the means to delegate all or most of their childcare responsibilities, occasionally their work suffers because the laws of physics prevent them from being in two places at once. These caregivers are what I call "real workers."

Thus far, finding solutions to protect real workers has proven puzzling. Scholars recognize that caregivers who are not ideal workers need benefits and protections that are not offered by current employment laws. Accordingly, many of these scholars have suggested reforms to help real workers succeed in balancing work and life. However, many of these suggested reforms suffer from two challenges. First, most of the reforms are piecemeal... The other limitation of many reform proposals is that they suffer from what I call "special-treatment stigma." Special-treatment stigma occurs when employers are unwilling to hire or promote employees who need special benefits or accommodations in the workplace because of the real or perceived costs of providing such accommodations.

We need a new theoretical framework to justify broad coverage to protect all working caregivers and to respond to the special-treatment concern.

Communitarian theory supplies the necessary justification. Communitarian theory's emphasis on the priority of responsibilities over rights, the importance of raising children well, and working together to reach a common goal provides the needed justification for supporting broad reform efforts aimed at ending the caregiver conundrum for all workers--both real and ideal.

This abstract has been adapted from the author's introduction.

Document Type

Article

Publication Date

1-2010

Publication Information

58 University of Kansas Law Review 355-414 (2010)

Download

Share

COinS