63 Pages Posted: 26 Apr 2010
Date Written: March 23, 2010
Can women capture the benefits of equal citizenship in a legal system that does not mandate necessary accommodations for pregnant workers? This article argues that current pregnancy discrimination law, which bases the right to work on full capacity, systematically deprives women of equal opportunity to make use of their innate capacities and talents in the workplace. This failure, in turn, compromises the quest for equal social citizenship - the right of equal access to paid work - that has been a cornerstone of the modern women’s movement.
This article first examines the nature and extent of conflicts between pregnancy and work, concluding that such conflicts have escalated in number and degree as women have expanded their labor force participation in many different respects. It next turns to the concept of substantive citizenship, with a particular focus on work and social citizenship, as a framework within which to assess gender inequality generally and, more specifically, the effects of the law’s failure to provide sufficient accommodation for the needs of pregnant working women.
The article then examines pregnancy discrimination law, tracing the shift from an era of exclusion to an era of access brought about, in large part, by the Pregnancy Discrimination Act of 1978 (PDA). The PDA was part of a broad social movement designed to guarantee equal employment opportunities for women, but was specifically designed to dismantle a system in which states and employers excluded or restricted pregnant workers based on false assumptions about their capacity. Unquestionably, the PDA opened workplace doors for pregnant women. The plight of pregnant workers today, however, rests not primarily in false assumptions about their incapacity, but in the failure of current law to account for the physical, medical, and social realities of pregnancy. Pregnancy discrimination law provides absolute protection for women only if they retain full work capacity during the period of pregnancy and childbirth. In cases of partial incapacity, it provides only a comparative right to accommodations that can be limited in nature and difficult to enforce. In the final section, this article thus argues that equal citizenship requires not only legal protection from unjustified exclusion from the workforce, but also protection for a pregnant woman’s right to work despite the potential temporary physical limitations of pregnancy. Only with a greater right of accommodation can women make full use of their innate talents and capacities at work.
Keywords: Title VII, Citizenship, Pregnancy Discrimination, Gender Equality, Disparate Impact, Accommodation
Suggested Citation: Suggested Citation
Grossman, Joanna L., Pregnancy, Work, and the Promise of Equal Citizenship (March 23, 2010). Georgetown Law Journal, Vol. 98, No. 3, pp. 567-628, March 2010; Hofstra University Legal Studies Research Paper No. 10-14. Available at SSRN: https://ssrn.com/abstract=1594950