Remedying Underinclusive Statutes
58 Pages Posted: 13 Nov 2013
Date Written: November 11, 2013
Abstract
A California employer who did not want to comply with California's mandatory unpaid pregnancy leave statute reached the United States Supreme Court. The employer sought to have the statute invalidated, claiming it was preempted by the Pregnancy Discrimination Act of Title VII of the Civil Rights Act of 1964. The employer argued that the California pregnancy leave act is fatally underinclusive because it does not provide similar employment protection for workers with short-term disabilities. The district court agreed with the employer; the court of appeals did not.
The Supreme Court will decide which court is right. This case raises interesting, unresolved remedial issues beyond the merits of the claim. If the Supreme Court holds that the California pregnancy leave statute is preempted because it is underinclusive, that Court, or the court to which it remands the case, must determine the fate of the statute. Current law or comment provides little guidance for making that determination.
This article argues that if the Supreme Court holds that the California leave act is preempted, the Court should not immediately hold that the act is invalid. Rather, the Court should stay enforcement of the act to give the California legislature opportunity to determine whether it wants to extend the act to include the other workers or repeal it. There is nothing in the act that indicates what the legislature would intend. When it passed the act, the legislature certainly did not intend to repeal it.
Keywords: California Federal Savings and Loan Assoc. v. Guerra; constitutional preemption; California pregnancy discrimination act; Pregnancy Discrimination Act of Title VII of Civil Rights Act of 1964; underinclusive statute; remedies; remedying underinclusive statute; legislative intent; extension; invalid
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