Cornell Law Review

Article Title

The Maternal Dilemma


Gender equality, Parental leave


When enacting the FMLA and setting a minimum standard of family leave for all eligible employees, Congress was particularly cautious about attacking the stereotype that all women are responsible for family caregiving. As Justice Rehnquist explained in Nevada v. Hibbs, the goal was to encourage men to assume more caretaking responsibilities at home, thus reducing employers' incentives to discriminate against women by basing hiring and promotion decisions on the stereotype of women as mothers. Indeed, the likely contribution of the gender- neutral parental leave legislation to the promotion of gender equality in the division of care-work at home, hence to equal employment opportunities for women, was part of the official FMIA narrative. It was meant to strengthen the expectation of a transformative era, when "a significant number of men" would take family leave.

However, more than twenty years after the enactment of this law, women remain the primary caretakers at home. They are still singled out as different, and gender stereotypes of women as less competent workers flourish, nurturing a reality of gender discrimination in the workplace. This discriminatory reality is often masked by legal narratives presenting the rise of egalitarian and choice-based patterns of parenting as actual products of contemporary parental policies. Gendered patterns of care and work are thus legitimized as reflecting the individual lifestyle preferences of both women and men in a world in which equality and choice shape these preferences.

This Article suggests naming this problem the maternal dilemma and has called for acknowledging the gap between law's ideal of equal parenting and the persistence of maternal patterns of care at home. It has revealed that the expansion of traditional mother-oriented protections to gender-neutral parental benefits, designed to encourage men to assume more caretaking responsibilities at home, have not been effective in undermining the unequal division of care-work at home, irrespective of how generous these supports are. The American model of very narrow parental supports thus resembles the far more progressive Israeli model in terms of the scope and significance of the maternal dilemma. Similarly, even in countries that put extra pressure on men to participate equally in the division of domestic labor by mandating leave, women still take most of the leave and are more likely to adjust their working routine to accommodate childcare.

The magnitude and persistence of the maternal dilemma calls for a reevaluation of current policy solutions that focus primarily on recruiting men to engage in caretaking at home as a means of undermining the gendered division of parental work, thus removing a significant barrier to gender equality in the workplace. Focusing on reshaping men's parental choices has made feminists, legislators, and policy makers neglect another, no less important, set of questions about the structures and forces that shape women's decision to remain the primary caretakers at home. Shifting the focus back to women and addressing their specific needs and concerns is thus crucial for moving forward. A first step in this direction is naming the problem "the maternal dilemma." It serves as a reminder of where the core of the problem lies; it also implies that the path to gender equality entails more than gender-neutrality and similar treatment.