By Sonia Marton
Unpaid caregiving is an enormous element of life for millions of Americans. But caregivers too often suffer discrimination in the paid workplace due to the real or perceived demands of their care work outside of it. Despite this inequality, employment antidiscrimination statutes do not protect caregivers explicitly. Instead, caregivers must demonstrate a connection to at least one expressly protected class to access antidiscrimination protection, usually by linking discrimination based on caregiving (unprotected) with discrimination based on sex (protected). As a result, equal employment opportunity (EEO) laws implicitly and explicitly reinforce the connection between being a woman in the workplace and being a caregiver outside of it. This state of affairs is both a driver and a manifestation of sex inequality because unpaid caregivers in this country are mostly women. This Comment offers a critical feminist analysis of how, why, and what could be done about it.
Specifically, this Comment advocates for explicit protections for caregivers as a class to help disentangle sex from caregiving and thereby help address sex inequality in the United States. Part I discusses the landscape of federal EEO laws and how it is insufficient for caregivers. Part II dives into the avenues that caregivers currently most often use to gain protection under the law. Part III showcases how broad and explicit protection for caregivers as caregivers can be successful.