Despite Ledbetter Ruling, Promotional Bias Still Plagues American Women

Despite Ledbetter ruling, promotional bias still plagues American women

The Bakersfield Californian | Saturday, Apr 18 2009 05:45 PM

Last Updated Saturday, Apr 18 2009 05:45 PM

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Konrad Moore

The first days of President Obama's administration included the signing of the Lilly Ledbetter Fair Pay Act, legislation that protects the right of victims of wage discrimination, principally females, who only belatedly discover the discriminatory conduct. The act improves the remedy, but does little to solve the underlying issue that continues to leave women in the work force in positions aptly dubbed gender challenged.

Apart from wage discrimination, equally insidious and prevalent is promotional discrimination. Women may nominally be paid equal wages, but are often denied access to promotional opportunities owing to considerations euphemistically called the "Mommy Track." The term reflects the choice women are routinely expected to make between their career and the more traditional role of primary caregiver. Prejudice follows many working mothers who may at some time in their careers expect to be reproachfully asked, "Who's taking care of your kid?"

The common and irreducible price of success for women: children. Don't have them, or if you do, delay childbearing until you've reached the top of the hill. Since the heights of professional success are not often achieved, if at all, before one's 40s or 50s, the decision often practically translates to a choice between having no children or adoption. Adoption, an awe-inspiring choice, does not appeal to everyone. So many are left to confront the reality that neither marketplace realities nor biology await subordination.

The drive for parenthood is powerful. Conception is prized, and pregnancy is often accompanied by acceptance of traditional biases.

Career aspirations are reset, and employment is frequently abandoned in favor of child care. Indeed, asked about female lawyers departing the workforce in a recent interview, Herma Hill Kay, the former dean of UC Berkeley School of Law, said, "(t)he women students in my Sex Discrimination course don't understand what the problem is."

The problem is that acquiescence drives the paradigm. Hard-driving men and women often consider work obligations as coming first. The difference is that a man is not charged with the task of carrying his child to term. While job performance issues and expectations remain the same, little or no accommodation is made for the physiological burden nature requires of, or at least places on, women.

Enter the Family Leave Act. Women and men are entitled to time off following the birth or adoption of a child. So far, so good, until one recognizes the reality. Legal or not, a leave of absence is frequently perceived as reflecting a diminished measure of career commitment.

Perhaps the conclusion is justified toward males. What's a man going to do, except stay home, change diapers and give his wife a break? Male bashing? Of course, but evolutionary realities should trump considerations of political correctness, and the presence of the mother is particularly important in infancy.

Further, it is not biased to recognize that men do not suffer nine months of physical discomfort, and that men are not capable of breast-feeding. Fathers should bond with their babies, but the primacy of the mother's role in early life is indisputable. The Family Leave Act laudably seeks to extend equal protection and sets aside differences between the sexes. But, gender is not race. The differences do matter. Accommodation is properly considered and extended in the workplace, and may even warrant a limited legal preference as it involves women's unique childbearing status and obligations. Nonetheless, workplace conditions and expectations developed when women were traditionally homemakers. As a result, the market too often remains insensitive to child care, and mothers leave. The phenomena is rationally self-perpetuating. Reward the employee who is statistically most likely to remain with the business; it makes financial sense. Further, the male frequently bears principal responsibility for his family's economic welfare, so the system is morally self-justifying.

The predictable result benefits no one. Assuming genes are heritable, some portion of the best and brightest females who desire parenthood have no children, or fewer than they otherwise might, choosing instead to prioritize their workplace ambitions and contributions.

Society rightfully recognizes that aid is not fairly denied to a child because of the poor judgment of its parents. In recognizing that most intelligent women carefully weigh the timing and cost of childbirth, we expose the complicity of their counterparts who subsidize indifferent or ill-considered approaches to reproduction. The conclusion is indisputably unfortunate: Accomplished women have fewer children, and many who do manage to break the so-called Glass Ceiling are obliged in the process to forsake dreams of parenthood their male counterparts more manageably realize.

If one values and wishes to promote a level playing field, changes are needed. One solution is to encourage, if not mandate, workplace child care. While perhaps not entirely solving the problem, reducing the departure of qualified women from the work force would offset the associated increased costs. The benefit would also apply to single parents, thereby lowering the number of latch-key children, a phenomena that carries its own attendant risks.

The alternative? Women will continue to be expected to make hard choices. After all, they've always done so. The Ledbetter Fair Pay Act and the Family Leave Act amount to minor adjustments to the status quo.

A more noble solution involves implementing a social structure that eliminates the need for such lawsuits altogether. Moreover, while life is full of difficult decisions, one's gender should not force a choice between professional success and having children.

Konrad Moore is KernCounty's chief deputy public defender