Has the Law Changed for Mothers?

Who this resource is for: Anyone!
Who created it: © Pacific Legal Education and Outreach Society (PLEO), 2021

This resource contains a recording and transcription of PLEO’s “Has the Law Changed for Mothers?” event held on International Women’s Day. Items discussed include an analysis of the Fraser v. Canada case, human rights, how working conditions have changed in COVID-19 for Mothers, and systems that impact the success and failure of juggling mothers.

At this event we were joined by Dr. Amanda Watson, professor at SFU in the Department of Sociology, and author of The Juggling Mother: Coming Undone in the Age of Anxiety. Clea Parfitt, a human rights lawyer in Vancouver, internationally known for acting on behalf for women in a variety of circumstances including sexual discrimination and sexual harassment also participated in the discussion.

Speakers: Martha Rans, Amanda Watson, Clea Parfitt 

Disclaimer: This is a transcript based on a conversation between the participants in the event. As with all conversations sometimes things are said that ought not to be taken out of context. None of the comments found in the transcripts are legal advice and should not be relied upon.

Martha: Today we are going to be talking about a subject that is quite personal to me it turns out. I was single parenting my daughter in 2005 and working for the provincial government. I found after returning from mat leave, that I had to stay at the office until 4:30 in New Westminster everyday without fail or face discipline. Needless to say this caused something of an issue for me: the only way to get on public transit from New West to my home and pick up my daughter from my shared childcare situation (only one avail at the time) was by leaving the office to ensure I was on Skytrain by 4:30. I was not accommodated. I found myself, 2.5 months later after 26 pages of back and forth between myself and employer, being terminated and filing a complaint based on family status. It didn’t go very far, we ended up resolving it, and I lost a lot in the process, including 6 years of employment, and the employment history that goes into that (including pension credits) when I lost the job. 

I saw the Fraser decision come out last year, in which the Supreme Court of Canada reaffirmed that women’s reproductive choices are ones that must be accommodated by employers. The court favoured plaintiffs, each of whom had job-shared from their original positions to manage their childcare needs and remain members of the RCMP. Because they were part-time and chose to be part-time, they were not able to buy back their pension benefits as their mostly male colleagues, who were disciplined, were able to do at the time. It’s an important decision, and it prompted me to think about the needs we continue to have whether we parent or not, to have acknowledged our role as mothers, as parents, in the workplace and how we still have a long way to go. 

I reached out to Amanda Watson, a friend and professor at SFU at the Department of Sociology, a feminist of a different generation than my own who wrote a book, The Juggling Mother: Coming Undone in the Age of Anxiety, that spoke volumes to me about my experience.

In terms of who best to talk about adverse effect discrimination, family status, and the meaning of the law for women, I also thought of my other great friend, Clea Parfitt, a human rights lawyer in Vancouver, internationally known now for acting on behalf for women in a variety of circumstances including sexual discrimination, sexual harassment and everything in between. 

Amanda: I want to begin by telling you about the title of the book, The Juggling Mother: Coming Undone in the Age of Anxiety, where it came from, and its main arguments. I started studying representations of motherhood in popular culture, public health campaigns, ads, and traditional media before I had children and before I realized what kind of work my body would do in exchange for a wage and to support my partner’s wage. What motivated the book in my graduate studies is a sense of confusion of what feminist action looks like anymore. I was raised in the 90s, in the early aughts of Spice Girls feminism, equality feminism, “You can do it! You can be the PM, an astronaut!” that rubbed up against the tacit expectation that if you want to have children and happen to be a woman that you would take on an unfair share of the load. I’m seeing as a young Sociology student those statistics that are stubbornly entrenched even as women were in the workplace. Those were fraught conditions in my 20s, with a major identity crisis of “How will I do this? What will I do with my family formation plans? Will it be under conditions of choice?” 

As I dug into the research, I realized that the ideal mother subject as we see it represented around us, is no longer a housewife, she’s no longer the devoted maternal subject of 1950s propaganda, nor is she this gender-neutral robotic entrepreneur or Silicon Valley CEO. In fact, she’s both! That’s where I landed. What kind of symbols do we see around us that are telling women to excel in all of these ways? 

The juggling mother then is this trope - she’s not a real person, but if we close our eyes she comes to life. She’s doing the most at work, floating stylishly into the meeting, kicking ass there, never really dropping the ball, taking up just the right amount of space, alludes to moments of feminine softness in the background so we trust her as a woman. Then she goes back home, her kids are set up to be financially successful, in the right scheduled activities, etc. That’s why it’s a trope, we know it’s impossible, it’s not a real person. The juggling metaphor refers to the fact that the Juggling Mother never drops the ball. 

The Coming Undone language is meant to capture both what women said when asked about their multiple competing demands and how we see this represented in pop culture. I was trying to get this sense of “too much” ness that women reported feeling when they have competing obligations of their time, also called “role strain”, “mental load”, “emotional labour”. That involves anxiety, depression, stress, sometimes it’s acute, sometimes it’s blatant. In the COVID context it’s like a blanket of all of this. It’s dynamic depending on where you are in your day. 

What I want to get at in the coming undone part is- we’re encouraging this figure, women today and mothers, to be always careening against the edge of burnout but never quite burning out. We trust this figure is doing the most, doing right by obligations to society when she’s proving she’s at the edge, when she’s exhausted. When she’s fully dedicated to both capitalist forms of success, recognized forms of exchanging your body for a wage and unpaid care and nurturing work. We trust her most when she’s most depleted and is at the edge of falling apart, but she never actually falls apart and comes undone.

My critique and why it’s controversial: this kind of performance and juggling is only available to very privileged people. It’s overrepresenting whiteness and influence, and even that person is unfairly burdened by motherhood penalty at work and unfair share of the work at home.  

In terms of COVID, the Juggling Mother has been handed an elephant and now it’s impossible. Now she has to homeschool and burden the intensification of anxiety as they try to shield their family members from feeling the strains of the pandemic. Now there is a new pressure on women who are tasked in making it feel all better in insecure times, now in a crisis, the magic of Christmas, birthdays, is labour that has to come from somewhere, and this disproportionately comes from women. 

Fraser made me think about the snuggly the notion of the C word: “choice”, the choices women make, and the choice rhetoric. It remains part of the culture and how we understand women’s work. It’s the myth of choice. When women leave the workforce, it’s still framed as a choice, and it’s infuriating to me. What are the conditions in which women must navigate their labours and keep their families alive? Can we not problematize this word? The case is obviously responding to forces that would like women’s behaviour to hinge on this word so they can’t be protected. That fills me with rage.

The f word is flexibility. We’re at a time when the silver lining of workplace transformation might be more flexible workplace policies. Families have been asking for this. Feminist research has been pointing to giving workers more flexibility and autonomy as a way to shift loads of unpaid work and stigma. We know in fact from research of the motherhood penalty, that if when women take these flexible policies they’re still stigmatized and leaders aren’t making use of these policies, then flexibility is not a progressive word. It’s about keeping the market and companies flexible, and making women make themselves flexible, rather than having conditions of their work be flexible. That is a shifting terrain now, in COVID times. 

Clea: Fraser is a case about a provision that permitted people at a workplace to job share. What happened, unsurprisingly, is that the people who chose to job share were almost all universally moms. This was in the RCMP. The way the policy ended up working is that if you chose to job share, your pension took a hit. You were not permitted to buy back that extra time when you returned to full-time work, whereas other people that were out of the workplace for reasons that were sometimes quite serious (e.g. discipline) were able to buy back the time. The 3 plaintiffs attempted first to deal with the issues internally, unsuccessfully, then brought a Charter challenge to the rule that they can’t buy back the time.

They were unsuccessful on the first 2 levels of court. Both took the position that these women chose to make the choice, and so not entitled to buy back the time. There was also a technical argument “they were working part-time, not the same thing as being out of the workplace altogether”. But the SCC, in a 6-3 decision written by Justice Abella, very clearly took the position that this is clearly adverse impact discrimination.

What was so profoundly evident to me in reading the decision is that she’s saying in each paragraph “this is already the law, we already look at adverse impact, it has to be taken account of”, etc. She makes references to other cases like Jansen (sexual harassment case), Brooks (whether pregnancy discrimination is discrimination on the basis of gender) - very clearly, we have known this for a long time, the need to look at adverse impact, and if you look at adverse impact, able to see that a law that may be neutral on its face can have an adverse impact on a particular group of people because of historical disadvantage based on their personal characteristics.

One of the great things about Abella is that she is very clear. It’s clear that her message is still required. We have a tribunal here that struggles with adverse impact discrimination, even very recently made a decision in Harvey v Gibraltar Mines, which is similar in some ways where a family had 2 workers both working in a mine in a system involving 12-hour shifts. Once they had children, they had difficulty retrieving children from daycare if they worked the same shift and if they weren’t working the same shift, they never saw one another. Our tribunal managed to understand that that could be family status discrimination, but unable to understand that it could be sex or marital status discrimination. Tribunal members said, “this rule was not created because she was a woman or because she was married”. The answer obviously is “No, but the impact on her arises because she is married, because she is a woman and is caregiving.” So even our tribunal, which is supposed to be an expert tribunal, is still struggling with this concept of adverse effect discrimination.

For me, Fraser sits within this larger pool of law that we have whose entire project is to try and moderate the excesses of capitalism. We have the Employment Standards Act, health and safety provisions of the Workers Compensation Act, labour codes, human rights codes, the Charter - all these exist to create some sort of balance between the demands of work and the demands women are facing at their home. I think this project is failing. I feel like the conditions of labour are becoming more precarious. We have the gig economy, people working less for a single employer, decline in unionization, an increase of people working from home. 

This last part brings an interesting question: it brings increased flexibility, but by sending work home, have we erased the final barrier that was protecting women from total porousness between their work life and other domestic and personal obligations? 

Amanda: I think that some of the mental load has become visibilized, having both parents at home, and some of what we think of as micro nuclear family decisions which are actually systemic forces, some of those impacts on divisions of work have fallen apart. Just to give an example: I am in a relationship where we strive to have a feminist division of labour and feminist conversations and yet a year ago our division of labour was not equal, e.g. “The daycare happens to be at my workplace, I’ll do drop-off and pick-up of the kids”. These kinds of justifications - it is more likely they work closer to the daycare, that women get out of work earlier, etc. are not actually unique to our family situation. When the pandemic hit and we started sharing those things, we also started sharing tasks that I normally would just do without having a conversation with them typically. As someone who has studied feminist activists who try to visibilize the invisible work that women do. We are seeing these in headlines, people are more aware of what it takes to run a household now that there are more adults in the household. That feels powerful to me, that feels like a shift.

But where is the room of our own? I worry about women not having enough space outside of the home to carve out their own life and time away from unpaid labour expectations, and that feels really daunting. This image in the New York Times captured it well. We have a two-parent household and both parents are working at home. The father is in the office and behind a desk, checking his emails. The woman who is on the call, in a meeting, is doing the toilet training with a toddler. That rings true. It is not a one-off thing either, that is also statistically how these things shake out. That is what happens in my household, too. And our excuse is “Oh, my daughter only goes to me” but we have shaped those bonds, we created those conditions in our household. And that is what I find scary.

And definitely the employer’s access to the employee is daunting with the smartphone technology that is upon us. I am curious to see how people would use time diaries and actually say what hours they’re working at. And definitely with the pandemic with the kids at home I have pulled off a lot of late nights and ridiculous overnight type of work situations. But, I think of those long nights as the exception, at least in my privileged role. I don’t know if we’ll find that employers expect more access just because we’re not on site if we already have email and phone expectations anyway. I am curious to see how that shakes out.

What are you imagining, because I think your work is in different industries in labour. Which industries are suddenly able to pivot to working from home that you might expect would shift the conditions of the work?

Clea: Anyone who has to provide or has to do a thing that requires them to be face-to-face with people is not working from home. If you’re a surgeon or barista at Starbucks, you’re not working from home. There’s an interesting cross-cutting effect that there are people at every level of the economic range who are not able to work from home and vice versa. There are people at every level of the economic range who can work from home (e.g. telemarketers, CEOs). It’s not going to cut in a clean socioeconomic way, though I think more people on the lower ends of the pay scale will not be working from home. You think about all the cleaning work, personal service work, much of which is poorly paid like in restaurants - all of that work will have to go on not from home. There is that interesting effect.

What I think is interesting about work from home is that we have created boundaries about work by looking at the time that you’re required to be at work. We have the Employment Standards Act that creates these firm boundaries: a workday is 8 hours, if you work more than 8 hours you’re entitled to more pay, if you’re called out you’re entitled to be paid a minimum number of hours etc. These ideas have less and less relevance when people are working from home and probably not working a straight 8 hours or 2 4-hour blocks with a lunch break - that’s not how it works when you work from home. Does that mean there’s a change in evaluating work on a task basis versus a time basis? We have tended to measure it by time, but maybe what we’re moving into is more measured by task, which is consistent with the gig economy where you take on a certain pool of work which is task-defined and it does not matter how long it takes, the employer doesn’t care. It puts a lot of pressure on individual employees to constantly push back and say, “Well that task you gave me is a whole day task, not a 5-minute task”. It’s a harder conversation, it’s easier to measure an hour, everyone agrees what an hour is. But it’s harder to say what is a fair value for that task when we don’t necessarily agree how much time or effort it takes. I can see an increase in these difficult conversations in how much work should be valued. There’s always pressure from employers to get more from us. We invented unions as human beings because of that difficulty bargaining with an all-powerful employer, and maybe now with people having multiple employers you’re in a better bargaining situation, but that’s a maybe.

One of the things I have always wondered about was one of the few initiatives that we’re seeing in terms of easing the care burden on moms is universal daycare. We’ve seen a consistent push for universal daycare but I wonder with the effects of COVID if people will be less interested in those institutional solutions and more interested in having a pool of money saved they can apply to childcare.

Amanda: I think COVID has pointed to a need for emergency daycare and there have been a lot of people who have needed irregular daycare hours and have found major shortages. The Vancouver case in particular - there’s a shortage, we’re in a childcare crisis here.

It would be helpful to think about care work as happening on a 24/7 clock but I think putting more money in people’s pockets to put band aid solutions on care does not systematically overhaul the way we think about early childhood education. 

I have been part of a few conversations recently in BC that reveal we’re back to a place, politically speaking, where there’s a critical mass of people wanting to centre early childhood education at the heart of our political discussions in terms of closing gaps in social stratification. There’s lots of good research on how beneficial it is for families. It’s not only just a silver bullet kind of solution for assisting women in poverty and single moms and closing a socioeconomic gap between women, but also it’s for kids and families. I always point to that when people ask for the recommendation. 

I hope that we’re at a place where we’re seeing political will. I think that this government indicates that they understand just how powerful early childhood education and universal, affordable, accessible, diverse, tailored to communities childcare could be. 

Clea: Do you see a tension between affordability and the quality of the care? I’ve been seeing a lot of conversation about the $10 day daycare, but it seems to me that what you’re talking about is providing a high-quality early childhood education; those two might be different things. We may not be fully recognizing that.

Amanda: I think that’s a bit of a myth actually. My kids are in a big centre, and they are trying to pilot the $10/day thing and they have requirements that the educators there have ECEs. It doesn’t mean all kids will thrive in that space but I think a comprehensive plan from the government will include quality as part of what is accessible and affordable. It can’t just be $10/day daycare. There’s a big myth that once you make something universal and affordable, suddenly we’re dropping our 1-year-olds off at a gymnasium with 50 other 1-year-olds. I think that’s the fear that people have, that we’ll raise kids in these bins and hope that the one-size-fits-all model works out.

If I were consulting this government, I would say, part of your marketing should involve ensuring people that there are researchers looking into different family’s needs in terms of childcare. 

Martha: If I can just jump in on that point. I was really concerned, Clea, when at the beginning of the pandemic, returning to school was a big issue. A lot of families, tending to be upper middle-class, affluent, educated folks wanted to create pods so they can teach the kids themselves. I have noticed a tendency in some of my incredibly educated and bright friends that they think they are better teachers than teachers are, and this is a way to get their kids out of the system and start demanding money from the government to support these pods, to support them in a way childcare systems should be supported. There were two different conversations happening, and no recognition of the many kids who really do need that social connection that comes from being in school, and group settings, and how important that is, and how kids are and still are struggling with school online. It’s an ongoing concern.

I hope that we come out of this with a better policy. It’s an opportunity for the government to put money in areas where historically it hasn’t had money for. Right now, we’re just awash with money, partly because of interest rates and so on.

[comment from Susan Harney, Coalition of Childcare Advocates]: “We’re working very closely with the Ministry of Childcare, where quality is the most important thing for the care of a child. Parents who have been able to access $10/day say it’s life changing. The Ministry may not get it all right for sure, but we’re making real progress. Also advocating for control of services by Indigenous folks to run their own programs. There’s also research happening regarding flexible and non-standard care.”

Martha: One question I have, Clea, is whether there is an increase in complaints to the Human Rights Tribunal in light of COVID-related issues?

Clea: I haven’t seen statistics suggesting there has been an increase. I haven’t had too many COVID questions, probably one or two. The tribunal doesn’t turn on a dime. If you have a problem arising from COVID, maybe it’ll get resolved.

I did have a client who came to me working for a delivery service which was terribly overwhelming during Christmastime. He was disabled and they were telling him, “You have to work, we want you to work late” and he can’t because of his disability. There was a real lack of flexibility from the employer around that but I think it got sorted out.

I can imagine there’s been a lot of difficult conversations in the workplace about increasing demands from employers that can’t be met because demands on the employee are so great already. That’s not to say these will lead to complaints, but you have a year to file, so those human rights complaints may come.

I was struck by something you said in the beginning, that Fraser stands for the proposition that employers must accommodate reproductive needs. I don’t think Fraser goes nearly that far. I think it says if you create a rule and it has a disparate impact, you might be responsible for responding to that. But I think to say there’s anything in the decision that proactively requires employers to look after reproductive needs - no. And indeed we have an interesting situation in the human rights framework in BC, where our Court of Appeal has very firmly said, “Your care obligations do not create a human rights complaint unless there has been a significant interference with a substance requirement”. So the standard is very high to ever establish that your care issues are the employer’s responsibility to accommodate, let alone to deal with.

We set the bar super high, and that was really the fight in the Gibraltar mines case. The employer response was there is nothing special about your care needs, we don’t need to accommodate them, you have to work this out. Even though they were working out of town, with 12-hour shifts and they were demanding 100% of people’s times, and even though they were not providing on-site daycare, their view was whatever problem your working arrangement causes us is yours to figure out.

Martha: It’s a perpetuation of “it’s in the private realm”.

Clea: And particularly interesting here because you have a woman working as a welder, a non-traditional role for women. And still zero support from her employer. 

I’m pleased she’s filed a human rights complaint, and the tribunal found a way not to dismiss it, but I’m sorry it now has to go under judicial review because I don’t find that our courts are strong at all on human rights issues. When it’s difficult to explain adverse impact discrimination to a Tribunal member, you know how hard it will be to explain it to a judge. Even though it’s the bedrock of human rights and Charter law, the inability to grasp that concept and how it plays out is pretty stunning.

Where we are on care and on adverse effect discrimination: The law is good on adverse effect discrimination, the practice in courts is not that great The law in care is good, the practice follows the badness of it. Those are areas where we’re struggling in the law, at least in a practical law. 

[comment from Jennifer]: “When you have children under 2, they get sick a lot and are going to daycare. Employers can be unforgiving about working from home before COVID, you can run the risk of losing your job because you have to care for a sick child.”

Martha: This is also a big issue in COVID right now, with getting sick leave incorporated into employment standards statutes, not just on a temporary basis as they are here, but across the country as a standard so that a) people don’t go to work sick, and b) there is some acknowledgement that if you have to care for someone who is ill, there would be some flexibility and accommodation there.

Clea: I am optimistic that the fact that almost every employer has had to have a large part of their workforce working from home is going to make it harder for these same employers to go, “I can’t have you working from home” - those arguments are going to be less believable. It’s given us this tremendous argument about flexibility that we didn’t have before. It’s a giant, across-the-economy experiment of whether people can work from home. The answer to that appears to be yes.

I’m sure employers to some degree have been less scrutinizing of the work that’s been done at home than they might have been in other circumstances, but I don’t hear a lot of employers moaning about how the work has not been done. Certainly in terms of what I’ve seen in the press, I haven’t seen that concern articulated. How about your Amanda, what do you think about that? 

Amanda: I haven’t seen that either. I am curious about how the stigma that mothers face can stick to them now that they are working from home. We are seeing evidence that women work from home, they do twice as much childcare as men who work from home. We have to think that women must not be able to get as much work done, and if this stigma gets stuck to women, then the optimism to this shift is lost. 

[Question from Alayna]: “What about family law? Have you heard much about an unexpected wave of post-pandemic separation and divorce?”

Clea: I do know the background that there is no correlation between divorced men and poverty, but there is one for divorced women and poverty. I have always been confused about this with respect to the law. I’ve always thought of BC family law as progressive, and trying to protect women as much as possible from those adverse effects.

I don’t practice family law, but I do sit on the board of Rise Women’s Legal Centre, which provides advice to people identifying as women with regards to family law. Certainly there has been an increase of reported domestic violence and there have been tremendous tensions within families because everyone has to be home for an extended period of time. Some of the safety valves like having to go to work are non-existent.

I’m sure there will be relationships that flounder on that amount of contact, it’s bound to bring out the cracks in certain relationships. I’m sure there will be divorces we can attribute to COVID. 

I think that the fact that women end up being more poor after divorce vs. men, to me that’s the natural result - if it’s hard to get the male partner in a heterosexual relationship to pull his weight when he’s in the house, it will be even harder when he isn’t. 

I also think that women do take on these tasks, and there’s a sense that if there’s something missing, women step in to fill out. Their competence and willingness in a way creates a vacuum that makes other people think “oh I don’t have to do this because she’s doing it”. The difficulty in having a domestic strike where you don’t do any care work, the person who will really pay the price are the children. I think most women are not prepared to make their children pay the price to get the better arrangement out of their partners who are not contributing to the same degree.

The social work we need to do to is change that gendered arrangement of who provides this emotional care, “affective care” in the home. That’s not really something a legal tool can change, but it’s definitely having an impact on things that do come into the legal arena.

Amanda: I like the way you put that because I’m often asked how the government should react, what laws can change that, and my response is “I don’t know!” but I think you’re right, these cultural shifts will chip away at the law and vice versa. That work that needs to be done at the home is really personal and challenging for women. 

I’m thinking of elderly care while we’re talking, as it has taken centre stage during the pandemic. As you were saying Martha, over the weekend, there was a BC health journalist who stated  “pull your relatives from care”, and a lot of people responded saying “look at how we put our elderly relatives in these centres, look at their atrocious conditions, how can we as a society condone this? It’d be much better to not do this!”. I just think “Yeah, on the backs of women” that is what we’re saying.

We can talk about childcare and homeschooling in COVID and how that has been hard for women, but elder care and women doing it has been out of the conversation. It’s confusing, we have as much research on both.

Clea: I do love how moms are now taking meetings from work with their child on their knee. It makes the work of childcare very obvious and blatant, which as you said in your book, women have worked to make it invisible. It isn’t helpful to have that work not be invisible; the more visible that work can be, the more as a society we can respond to the need for that work.

I totally agree that sending an elderly relative to care for an already overburdened mom or woman, will probably not result in a better care for the elderly person. An exhausted, unskilled person will potentially be bad tempered. Privatization comes with exposure to risks, too. It’s not much less risky than having the elderly person be in a long-term care home. It’s obvious we’re doing a poor job of looking after our elders but sending them home must not be the solution and we have to push back hard against that.

We have to say that maybe we move the care to family-like modules, and less like a hospital. We need to work hard to define that care so that we’re caring for our elders without suggesting we privatize it. 

The government is happy to have families with disabled children working themselves to the very edge of their capacity and beyond, and saying that’s your responsibility, we don’t pay for that; they will do the same with elderly care if they get the chance. We mustn’t shoulder that burden domestically, I think it would be really a tragedy if that’s what is made of the COVID mess in long-term care homes.

Martha: This idea of visibilization of care work. I remember being one of the few women who dragged my daughter to meetings because I did not have childcare. Not intimate meetings but meetings where I was giving a talk and she’d sit at the back and colour. This isn’t going to work for every child, obviously, but it really made it plain that where I go, she goes unless you cover the costs. None of these organizations included in their budgets the idea that they should include a care budget. We’ve built into our workshop budget that if you’re presenting somewhere farther away, we would have your care covered as part of the deal. That should be normalized. We need to find ways, when we go back to holding face-to-face events, that if we want women and parents to participate more fully in them, that we include childcare. 

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