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32 A.B.A. J. Lab. & Emp. L. 437 (2016-2017)
Keeping Mothers in the Workplace: Shifting from McDonnell Douglas to Protect Employees Who Use FMLA Leave

handle is hein.journals/lablaw32 and id is 465 raw text is: 437 Keeping Mothers in the Workplace: Shifting from McDonnell Douglas to Protect Employees Who Use FMLA Leave Chelsey Jonason* Introduction Many women enter the workforce with goals of reaching top exec- utive positions, but workplace realities often thwart these goals. In 2013, women earned thirty-seven percent of MBAs granted in the United States,' but filled only twenty-five percent of S&P 500 execu- tive positions in 2016.2 From 1988 to 2013, between forty-one and fifty percent of law school graduates were women, but the number of female law firm partners barely surpassed twenty percent during those years.3 It is hard to imagine a majority of women entered MBA and J.D. programs without aspirations of top positions.4 For many women, competing workplace and domestic demands are the primary obstacle preventing them from reaching top positions. The most frequent response of mothers polled about their disinterest in top executive positions was: I don't feel like I would be able to balance fam- * Chelsey Jonason is a member of the Class of 2017 at the University of Minnesota Law School. She is very grateful for the guidance provided by Professors Stephen F. Be- fort and Laura J. Cooper. 1. Knowledge Center: Women's Share of MBAs Earned in the US., CATALYST (July 8, 2014), http://www.catalyst.org/knowledge/womens-share-mbas-earned-us (graph display- ing percentages of MBAs earned by females from 2002 to 2013). 2. Knowledge Center: Women in the Workforce: United States, CATALYST (Aug. 11, 2016), http://www.catalyst.org/knowledge/women-workforce-united-states (includes chart showing percentages of females at various levels of leadership in major companies). Cf. LeanIn.org & McKinsey & Co., Women in the Workplace: 2015, at 2, 6-8 (2015), http:// wit.berkeley.edu/docs/Women-in-the-Workplace-2015.pdf (women are not leaving organi- zations at greater numbers than men, but are less likely to advance). 3. Knowledge Center: Women in Law in Canada and the US., CATALYST (Mar. 3, 2015), http://www.catalyst.org/knowledge/women-law-canada-and-us. 4. Professor Susan Sturm argued that the judiciary has not effectively remedied subtle and complex forms of workplace inequity. Susan Sturm, Second Generation Em- ployment Discrimination: A Structural Approach, 101 COLUM. L. REV. 458 (2001). Strum attributed continued gender inequity to second generation claims of inequality, linked to social practices and patterns of interaction among workplace groups that ex- clude non-dominant groups over time. Id. at 460. Such exclusion is difficult to trace at the individual level and appears only when aggregating patterns. She further noted that inflexible workplace structures disfavoring family responsibilities may not give rise to a legal challenge. Id. at 474, n.50.

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