Mitt Romney is to be commended for his understanding that flex-time policies… (Susan Tibbles / For The Times )
With his eye on the much-coveted female voter, Mitt Romney proudly brandished his pro-woman credentials in Tuesday night's presidential debate, recounting his vigorous efforts to hire women as members of his Cabinet when he was governor of Massachusetts.
How did he do it? Two strategies: First, a little old-fashioned affirmative action (that is, faced with too few female applicants and a desire for women in the workplace, he put together binders of female candidates and considered them separately) and, second, flex-time policies that allowed mothers to work and still get home to be with their children.
Romney is to be commended for his understanding that flex-time policies are a crucial feature of any modern workplace ready to acknowledge the myriad complications involved in combining work outside the home with work inside the home. But all voters — women and men — should ask themselves why candidates for office still assume that only women need such policies.
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Time and again, we send women the message that Gov. Romney sent them Tuesday night: Work-family balance is your struggle alone. Silently, this sends men an equally clear message: You can stay at work all night because no one expects you to be home for bath time or dinnertime or homework time or bedtime.
As an academic and as a mother, I'm all too familiar with these sex-differentiated messages. They account for the disproportionate amount of childcare done by mothers, even mothers in two-career families, as scholarly research has shown. Likewise, in my own life, they account for why so many people seem shocked when my husband misses work to volunteer at our children's school, where he is showered with praise for taking on projects that are often handled by working moms without anyone noticing.
The message Mitt Romney sent to voters in Tuesday's debate is not new, nor is it a peculiar product of Romney's own rarefied work experiences. For much of our nation's history, laws regulating family and employment granted different rights to women and men at home and at work. The so-called maternal difficulty — that is, the supposed incompatibility between women's biology and certain roles in the workplace and public life — held that women were best suited to the home, allowing men to flourish at work. As Supreme Court Justice Joseph P. Bradley explained in 1872, rejecting the argument that the Constitution protected a woman's right to be a lawyer, the "paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother."
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Such explicit accounts of biological sex differences and their consequences are now the stuff of legal history. But we still let employers and politicians tell women it is their unique challenge to make their home and workplace responsibilities compatible with each other. Today, we encourage women to work outside the home, but only if they can figure out how to care for their kids too. In so doing, implicitly, we still tell fathers and fathers-to-be that their responsibilities at home have no relevance to their roles at work. Flex-time policies are, thus, thought to be an issue for female workers and female voters alone.
Unlike in Bradley's day, though, it is now hard to offer any clear, persuasive, legally acceptable justification for such different expectations for mothers and fathers at work and at home. The "maternal difficulty" narrative just doesn't cut it in 2012.
Shifting age-old norms like these is no easy feat. To be sure, the law can help. In 2003, for example, the Supreme Court, in an opinion written by the conservative former Chief Justice William H. Rehnquist, observed that policies that gave parental leave to women only "were not attributable to any differential physical needs of men and women, but rather to the pervasive sex-role stereotype that caring for family members is women's work." The Supreme Court has come a long way since Bradley.
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But this is not just a project for the courts. We need to begin to push our leaders, in workplaces and government, to abandon their antiquated assumptions about men's and women's roles at work and at home. We need to send a clear message to candidates for office that creating a work-family balance can't be accomplished by mothers alone. And we need all voters to realize that for people lucky enough to have children and jobs outside of their homes, combining these parts of their lives is a unique challenge of parenthood, not just of motherhood.
Ariela R. Dubler is a professor of legal history at Columbia Law School.