Abstract

http://ssrn.com/abstract=1919136
 


 



The Costs of Reproduction: History and the Legal Construction of Sex Equality


Deborah Dinner


Washington University in Saint Louis - School of Law

August 2011

Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 46, 2011
Washington University in St. Louis Legal Studies Research Paper No. 11-08-03

Abstract:     
Today, legal and political actors argue that sex equality does not require society to share the costs of pregnancy, childbirth, and childrearing with individual women and private families. Courts interpret the Pregnancy Discrimination Act of 1978 (“PDA”), amending Title VII of the Civil Rights Act of 1964, to prohibit only market-irrational discriminatory animus. Political pundits oppose paid parental-leave legislation as a mandate that unfairly subsidizes private reproductive choice by shifting its costs onto the larger public.

This Article uses novel historical research to deconstruct the boundaries between cost sharing and sex equality. I recover the redistributive dimensions of the vision for sex equality that legal feminists articulated from the 1960s through the 1980s. Legal feminists’ challenge to the family-wage system entailed efforts to redistribute the costs of reproduction between women and men within the home and between the family and society. The history of feminist mobilization, anti-feminist counter-mobilization, and norm evolution in law and policy, illustrates the overlap in the normative purpose and cost effects of antidiscrimination and cost-sharing mandates. To realize women’s right to social and economic independence, feminists pursued classic antidiscrimination mandates, the accommodation of pregnancy in the workplace, and affirmative social-welfare entitlements related to caregiving. All of these reforms, moreover, shifted the costs of reproduction from individual women to the larger society.

The history related in this Article holds significant implications for contemporary legal and political debates. The history suggests that courts adopt an artificially narrow perspective when they interpret the PDA to fall short of requiring structural change in the workplace. It also suggests that Congress might build upon an evolving commitment to cost sharing as a critical component of sex equality by augmenting the entitlements created by the Family and Medical Leave Act of 1993 (“FMLA”).

Number of Pages in PDF File: 83

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Date posted: August 30, 2011  

Suggested Citation

Dinner, Deborah, The Costs of Reproduction: History and the Legal Construction of Sex Equality (August 2011). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 46, 2011; Washington University in St. Louis Legal Studies Research Paper No. 11-08-03. Available at SSRN: http://ssrn.com/abstract=1919136

Contact Information

Deborah Dinner (Contact Author)
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
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