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Abstract

The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman as the basis for analyzing how the WFFA might be upheld under the Enforcement Clause. It also argues that, in order to advance workplace equality, the WFFA should be reframed to target “work-life” balance, rather than specifically “work-family” balance. Because caregiving is so frequently viewed as a women’s issue, as long as flexible scheduling is understood as a policy for caregivers, it will be seen as a policy for women and carry the burden of stereotypes associated with working mothers. To make fundamental improvements in workplace gender equality, we need to decouple the link between flexible scheduling and caregiving.