On December 1, 2023, the first woman to serve on the United States Supreme Court died. Retired Associate Justice Sandra Day O’Connor was a remarkable jurist and legal scholar. Her legacy includes not only her groundbreaking service on our nation’s highest court, but a raft of practical, careful, and reasoned opinions that have profoundly shaped American law.
It almost didn’t happen. When O’Connor graduated third in her class from Stanford Law School in 1952, she was unable to find a job due to her sex. Eventually—after offering to work for free—she found paid employment as a deputy county attorney for California’s San Mateo County. Her difficulties are made starker by comparison with one of her Stanford Law classmates, William Renquist, with whom she would eventually serve on the Supreme Court. Renquist used the then-new G.I. Bill to pay for law school, afterwards clerking for Justice Robert Jackson. He went on to easily find work in private practice for nearly two decades. After working for the Nixon Administration, he was appointed to the Court. He had three children.
O’Connor also had three children, but unlike Renquist’s straightforward career arc, O’Connor’s path was more meandering. Once she became a mother, O’Connor struggled to balance her law practice and her children. She said: “It’s hard to have little children and a job and career at the same time. There is no time left for you, as a woman.” After her babysitter quit, she couldn’t find a replacement she liked. So O’Connor dropped out of the workforce for five years to care for her young sons. Later, she would tell an interviewer: “I didn’t know if I could even get another job as a lawyer… I had so much trouble getting work in the first place.”
Before going to law school, Renquist had also “taken time off” from the civilian workforce to enlist in the U.S. military for three years. Unlike O’Connor’s stint at home with her children, however, his service was publicly honored. Also, unlike O’Connor, the country supported his return to ordinary life, through the G.I. Bill and other forms of support.
Today, many mothers—and some fathers—step out of the workforce for a time to care for their children. Like O’Connor, many may wish to return to paid work after their children are older, or due to some other change in their family circumstances. What opportunities do American employers offer to them? What protections do our state and federal governments provide? What is done to identify, support, and protect American homemakers? Too often, the answer is “little to nothing.”
The “little” that is done (or proposed) usually takes one of two forms. Some advocates propose that “caregivers” should be added to the list of protected classes in employment law, alongside prohibitions of discrimination based on race, sex, or religion. Others, inspired by the Diversity, Equity and Inclusion (“DEI”) movement, want to make it easier for “stay-at-home moms” to return to paid work specifically to address the gender imbalance in certain professions. These proposals are well-meaning, and certainly can be useful for some homemakers. However, as I discuss below, they generally have little to offer working-class mothers and fathers.
A better model is one that America’s first wave of feminists suggested in the early twentieth century: treating America’s homemakers with the support and respect we treat her military. America needs a “G.I. Bill” for her mothers and fathers who have spent time on the “home front,” devoting themselves to the important work of the family.
America’s Homemakers and the Workforce
Almost half of American mothers take significant time off from paid work—an average of about two years—to care for their children. Some mothers, of course, take almost no time out of the workforce, either because they do not want to or cannot afford to do so. Other mothers stay home for additional years or decades. Less data is available on fathers who leave the workforce, but surveys suggest this is becoming increasingly common.
When these mothers and fathers try to return to paid employment, they can face significant obstacles. Employers are often reluctant to hire them. One study found that, when faced with identical resumes, but a different explanation for the applicant’s time out of the workforce, employers preferred job candidates who had left the workforce because they had lost their job to those who voluntarily stepped out of the workforce to care for their own children. This discrimination is likely rooted in the fact that leaving the workforce represents “a violation of ideal worker norms to employers—norms that expect employees to be highly dedicated to work.”
Discrimination against mothers who have been out of the workforce and seek to return to work is a subset of a larger hostility on the part of employers towards working mothers. This phenomenon, sometimes called “the maternal wall,” has been described as “the strongest form of sex discrimination and among the strongest forms of employment discrimination today.”
To be sure, not all employers are averse to hiring homemakers who seek to return to paid work. A number of large corporations sponsor “Return to Work” programs that specifically aim to recruit women who have left the workforce to care for their young children. Unfortunately, these programs, while valuable, are an incomplete solution. They are heavily concentrated in Fortune 500 companies, and they are largely targeted at college-educated professionals who wish to return to demanding, full-time corporate jobs. Motivated by “urgency around both talent acquisition and diverse hiring pools,” these programs are often rooted in a desire to address an “acute” shortage “of female talent in the mid-to-senior ranks” of corporate America. They thus do not usually address the needs of parents who are working or lower-class. This is of particular concern because it is these parents who, statistically, are most likely to want their babies and toddlers to be cared for at home.
In addition to voluntary programs by employers themselves, Title VII and similar state laws may provide some protections for homemakers. Indeed, the very first Title VII case was brought by Ida Phillips, a mother of seven, who sought a job at a local manufacturing plant. Her need was acute, as her husband was an alcoholic and an unreliable provider. She had to earn enough money to put food on the table. Mrs. Phillips was nevertheless barred from applying for the job because she had a preschool-aged child. She sued under brand-new Title VII, which established protected classes, including sex and race. In 1971, she prevailed before the U.S. Supreme Court, which found that it violated the statute to have “one hiring policy for women and another for men—each having pre-school-age children.”
The opinion made clear, however, that Title VII does not explicitly protect against discrimination towards mothers. Rather, it offers protection against discrimination based on sex. The opinion made clear that it would be perfectly legal to refuse to hire parents (of either sex) whose caregiving responsibilities would interfere with their jobs.
Discrimination Against Homemakers Is Still Legal
Labor law has evolved since the 1970s, but it has not moved much when it comes to protecting homemakers. When the COVID-19 pandemic ramped up the always-present conflict between parenthood and work into overdrive, the Biden Administration’s Equal Opportunity Employment Commission (“EEOC”) issued guidance that read, in part: “Federal employment discrimination laws do not prohibit employment discrimination based solely on caregiver status.”
There are a few states that do provide explicit protections for caregivers. New York, for example, prohibits discrimination in hiring based on “the belief that someone with children or caring for a relative with a disability will not be a reliable employee.” Similar provisions elsewhere would doubtless be helpful to homemakers seeking to reenter the workforce.
However, again, this is an incomplete solution. Employment discrimination lawsuits are notoriously difficult to win. One study in 2009 found that plaintiffs in federal employment discrimination suits won only 15 percent of cases, as opposed to a 51 percent success rate for plaintiffs in all other types of civil cases. Hiring discrimination cases, in particular, are tremendously complex to litigate. The reasons why any particular employee is (or is not) hired are often inscrutable. In the wake of the early cases such as that brought by Mrs. Ida Phillps, most employers are canny enough to avoid providing “smoking gun” evidence as to why they decline to hire particular people. Thus, an unsuccessful applicant who seeks to bring a lawsuit against a potential employer has a steep hill to climb. She generally has little evidence to prove that she was discriminated against.
Even when employment discrimination lawsuits are a useful tool, the gains largely accrue to managers and upper-level workers in large corporations. As a 2022 study noted, it is primarily people “in the headquarters of the largest firms that see positive gains following lawsuits; their peers employed elsewhere either experience no gains or suffer from backlash.” Put another way, even with a change in law to provide explicit protections to men and women who have devoted themselves to the work of the home, employment discrimination lawsuits are unlikely to provide much relief for those who lack an advanced degree or who are not seeking employment at a large corporation.
This failure to protect homemakers—especially working-class homemakers—is a significant gap. Homemakers are critical to our government and economy. As one author put it, the US GDP “would be 26 percent higher if it accounted for the housework and child care in private households,” and “the average stay-at-home mother performs 18 hours of child care and 30 hours of housework each week.” In other words, as that same author concluded, “the stay-at-home mother is already a full-time professional in a $4.7 trillion industry.” Beyond their economic impact, the women and men who devote themselves to the work of the home play crucial roles in caring for America’s children, her elderly, and their communities.
Indeed, Justice O’Connor’s own time at home reflects the service of many of America’s homemakers, not only to their families, but also to their communities. While raising her three sons, O’Connor also helped provide pro bono legal services, and she ran the local Junior League and Young Republican club. Her children remembered that she was so busy as a homemaker with her volunteer commitments that she joked that a full-time job would be easier.
O’Connor was a very special woman, of course. But her commitment to her family and community is also reflected in the work of many of today’s homemakers. The debt America owes these exceptional women and men is immense and should be repaid.
Protections for Mothers and Soldiers
The idea of providing just protections to homemakers is a very old one. As legal scholar Erika Bachiochi has pointed out, the very first social welfare programs in the United States were directed at two classes: Civil War veterans and mothers. In arguing that mothers should receive pensions, one advocate said: “This recognition of motherhood is not charity. It is justice to childhood, economy to the state, and given for service rendered just as the soldier service is recognized.”
This desire to protect women who sacrificed for domestic life as a corollary of men who sacrificed in the nation’s military service was entwined in the nineteenth century ideal of women and men’s “separate spheres.” As Justice O’Connor herself points out in her book, The Majesty of the Law, “Men dominated the public arena of political and commercial activity; women, for their part, occupied the private realm of domestic and spiritual life.” O’Connor recognizes the double-edged nature of this separation of life into two spheres, which offered both protections and limitations for women.
Yet even as women were unfairly confined to the domestic sphere, they used that fact to “persuade a nation that ensuring stable economic conditions for the work of nurture, care and character formation in the home was a matter not of charity but of justice,” says Bachiochi. Importantly, this effort cut across class and race lines. As Bachiochi points out, the movement for mothers—which she calls the “maternalist mobilization”—was largely run by middle-class mothers, who “fought for their working class and poor sisters, establishing settlement houses for single mothers, nurseries for working women, and demanding protection and provision for their families from the state.” One of the largest organizations in the maternalist movement, the Women’s Christian Temperance Union, “included not only middle-class white women but black and Native American women too.”
In this, the maternalist mobilization had important parallels to contemporaneous movement for pensions for Civil War soldiers. As with the women’s movement, efforts to protect the former soldiers cut across class and racial lines. To be sure, neither movement was perfect; racial discrimination and animosity were still rampant. But both the soldiers’ pension movement and the mothers’ protection movement made important strides towards a more unified America. Under the resulting legislation, Congress was clear that black and white Union soldiers alike were entitled to pensions, regardless of their social class. Indeed, this effort to protect veterans would eventually evolve into one of the most potent forces for social mobility that the United States has ever experienced: the Servicemen’s Readjustment Act of 1944, or “G.I. Bill,” which has been called the “magic carpet to the middle class.” Although not without flaws, the facially race and class-neutral bill offered a steppingstone for many to achieve homeownership and education.
The movement for American mothers, however, did not fare as well. When the barrier between the “two spheres” rightly came down in the twentieth century, the respect accorded to the “domestic sphere” largely disappeared at the same time.
Many second-wave feminists actively denigrated the work of housewives and home in their pursuit of achieving equality for women. Betty Friedan famously argued that suburban housewives—rather than playing important, needed roles—were harming themselves, their husbands, their children, and their communities. She argued that women with “an exclusive role of wife and mother” were the cause of numerous alleged social ills, including “latent or overt homosexuality,” “Battered-Child Syndrome,” and “schizophrenic children.” In a chapter entitled Progressive Dehumanization: The Comfortable Concentration Camp, Friedan wrote: “the women who ‘adjust’ as housewives, who grow up wanting to be ‘just a housewife,’ are in as much danger as the millions who walked to their own death in the concentration camps.”
Friedan would later walk back her concentration camp analogy, but the damage was done. With friends like Betty Friedan, what enemies did American housewives need? It is unsurprising that after the second-wave feminism of the 1960s and 1970s gained traction, efforts to support homemaker mothers essentially died.
Rewarding the Service of Homemakers
It’s time to resurrect those efforts. Just as the G.I. Bill and similar measures justly provided significant and lasting benefits for veterans across racial and social class lines in the twentieth century, America’s twenty-first century homemakers deserve support that cuts across the barriers of race and class.
Homemakers are a diverse group. The Bureau of Labor Statistics found in 2014 that “Nearly half of the stay-at-home mothers have a high school diploma or less, compared with 30 percent of working mothers.” A similar study by the Institute for Family Studies found that 36 percent of married mothers with children three and under do not work outside the home, and such mothers often form a “U-shaped distribution” in representing both America’s lowest and highest income families; with the American middle class least likely to have a homemaker mother. Importantly, as discussed above, it is the working and lower-class who would most like to have their children cared for by a parent at home.
In other words, homemakers constitute a broad cross-section of American society, and they deserve support and help should they wish to return to the paid workforce. Just as America rightly adopted the G.I. bill and similar measures to help soldiers return from military life and join the paid workforce, so it should help her homemakers do the same.
First, making the link between homemakers and veterans reinforces that the former are not victims to be protected, but rather people who deserve to be rewarded for their valuable service. In a time of declining fertility, soaring youth mental illness, and the “Loneliness Epidemic,” the women and men who devote themselves to caring for family, home and community perform a needed and essential service.
Second, providing educational or certification grants (like the G.I. Bill) would offer significant benefits to many middle- and working-class homemakers. Consider the case of one teacher I interviewed, who left work to be with her children. She was faced with a decision between paying hundreds of dollars annually to maintain her teaching license or letting it lapse. Renewing it after several years at home would require paying several thousand dollars to catch up on “continuing education” requirements. Similarly, another mother without a college degree told me that one of the best jobs available to her was as a “Certified Nursing Assistant,” or CNA. The entry hourly wage can be double or even triple that available at McDonald’s, and full-time positions often come with benefits. The CNA license, however, costs hundreds of dollars to obtain, and it requires several months of training. Modeling support for homemakers off that for soldiers offers significant avenues for increasing social mobility, in addition to honoring and respecting those who do the work of the home.
Third, establishing “Homemakers’ Preferences” in hiring, similar to “Veterans’ Preferences,” would be both good for both homemakers and businesses. As with Veteran’s Preference hiring, “Homemaker’s Preferences” should be applied to a wide variety of jobs, including those that don’t require much formal education and those that do. As journalist Stephanie Murray points out, many women and men who devote themselves to the work of the home have developed important skills that can be applied in the working world. “[G]aining real recognition for [mother’s] work is the great unfinished business of the women’s movement.”
Indeed, as Justice O’Connor’s career demonstrates, these women—and men—may represent some of America’s best and most able workers. It would be a shame if the career arc available to her in the 1950s somehow became impossible in the twenty-first century. Whatever that is, it isn’t progress.
Our nation rightly recognized William Renquist’s service in the military. O’Connor was unjustly denied that same appreciation. It’s long past time to remedy that.
