SOMEWHERE IN THE BARELY NOTICED and long-forgotten middle of his last State of the Union address, President Clinton said, “Parents should never face discrimination in the workplace. I will ask Congress to prohibit companies from refusing to hire or promote workers simply because they have children.”
Who could have taken him seriously? Common sense says that employers would prefer to hire parents, even “discriminate” in favor of them. Surely workers who are mothers and fathers are the least likely to join cults or spend nights on the town or go a week without showering. But the White House had polls showing that doing stuff for parents is popular, nothing more so than helping them “balance work and family.” A sounding done by Celinda Lake for the National Partnership for Women & Families found that 84 percent of women and 74 percent of men favored expanding the Family and Medical Leave Act, the first legislative success of the Clinton White House, which permits parents to take time off work without pay to care for sick relatives and “bond” with newborn children. The same poll shows 74 percent of women and 70 percent of men saying “government should do more to help working families.”
Nowadays, when common sense battles poll numbers, common sense goes home with a black eye. The White House Domestic Policy Council, led by Clinton adviser Bruce Reed, has just finished working up an “initiative to protect parents from discrimination in the workplace.” By the end of last week a draft of a bill sponsored by Connecticut Democrat Christopher Dodd was on its way to the Senate legislative counsel, and Dodd has been sniffing around for a Republican co-sponsor. Meanwhile, the White House was approached by several Democrats interested in sponsoring a House version of the bill. Louise Slaughter of New York has long been mentioned as a likely House sponsor.
As it stands now, the bill aims to protect parents from employers who “falsely assume that employees with parental responsibilities are not capable of performing as well as their co-workers without children.” It will do so by making parents a “protected class” under Title VII of the 1964 Civil Rights Act. Parent-protection laws already exist at the state level in Alaska, Kentucky, Michigan, Nebraska, New Hampshire, New Jersey, Pennsylvania, and South Dakota. Democratic and White House staffers are now armed with talking points drawn from successful suits in those states — most often by parents denied consideration for jobs that involve travel or long hours, or parents back from maternity leave shunted into lower-paying work “suitable for new moms.” The bill’s supporters think you ought to be able to sue over that.
The bill does not stipulate that the plaintiff be a “custodial parent,” so even the “deadbeat dads” single- mindedly pursued by the Clinton administration can reap litigative windfalls. Protection is also extended to a certain class of non-parent: those “seeking custody” of a child through adoption. But for the most part, the bill has been crafted to avoid potentially lampoonable excesses. Following the tactics Democrats used in their (unsuccessful) ENDA gay-discrimination bill of 1996, it explicitly bans “disparate impact” lawsuits. Only “disparate treatment” is barred. Thus, a woman can’t sue her company because its failure to implement flex-time amounts to discrimination against mothers generally; and a father can’t claim that the night shift per se violates the civil rights of anyone whose children need help on their homework. And the bill covers only the parents of children under 18, except when a disability makes an older child dependent.
Dodd is a logical sponsor, as he was an early proponent of the Family and Medical Leave Act. His advisers hope the new bill will attract roughly the coalition that finally passed FMLA six years ago: nearly all the Democrats and a large contingent of liberal- Republican defectors. Democrats think the initiative has triangulation potential worthy of the glory days of Dick Morris. Bruce Reed calls the bill “pro-family.” One White House aide thinks its great potential to draw support comes from its extension of parental protection to males. “A lot of workplace discrimination arises from pregnancy issues, so it already gets covered under gender discrimination,” he says. “This bill protects the working father who doesn’t want to travel. It protects the single father, the non-traditional family.”
It may be that the parental anti-discrimination bill’s immediate political goal is to short-circuit rival “family relief” initiatives. These include Republican attempts to eliminate the “marriage penalty” from the tax code and various proposals to raise the per-child dependent deduction. Unlike those measures, parent-protection is cheap. “A tax cut or a marriage-penalty adjustment is an extremely expensive proposition,” says a White House aide. “Married couples are a big part of what happens in our tax code.”
At root, though, this is a feminist measure. It’s an attempt to use law to reinforce the already general acceptance of two-earner families. As such, it’s a bid to isolate those on the right who would like to reopen the argument over the desirability of having both parents work. Roger Clegg, general counsel at the Washington-based Center for Equal Opportunity, spells out the implications of demanding that employers take no account of workers’ family responsibilities. “You’re either ignoring an obvious reality,” says Clegg, “or you’re sending a message that people shouldn’t change their work habits when they have children.”
Certain Republications profess themselves tempted to support the bill out of Machiavellian perversity. A bill protecting parents, the thinking goes, would extend civil rights protections so broadly as to render them meaningless. When everyone’s protected, no one’s protected — and in a strange way, the Clinton measure heads us back to a level playing field. But that’s too cute. Even worse than what the bill does is how it does it. When labor law gets enforced through a mix of affirmative action and litigation, it produces a different kind of “level playing field” — one on which plaintiff’s attorneys can interpose themselves as de facto tax-takers in every employer-employee relationship.
Since plaintiff’s lawyers are the Democratic party’s most generous source of campaign finance, this money gets funneled back into the party to fund more such legislation. In partisan terms, whenever, regulation is structured as the parental anti-discrimination bill is structured, it strengthens Democrats — no matter what it ostensibly does or whom the bill ostensibly serves. That’s because it feeds the perpetual-litigation machine that is the dynamo of Democratic fund-raising.
Even if the bill has been dressed up like a dog’s dinner to appeal to white men, its intellectual father is not Dick Morris but the more reliably liberal pollster Stanley Greenberg. It was Greenberg who argued for a national health plan in the early days of the Clinton administration, on the grounds that it would re-marry middle-class white people to an entitlement state they had come to associate with poor blacks. What Greenberg’s health plan sought to achieve for entitlements, the parental anti-discrimination initiative seeks to do for the civil rights/affirmative action/equal opportunity regime — by bringing the 46 percent of the work force who are parents under its protective wing.
This characteristic Clintonite venture is only the latest expression of the administration’s overarching philosophy: Mend It So We Can Extend It.
Christopher Caldwell is senior writer at THE WEEKLY STANDARD.
