Unprotected Sex: The Pregnancy Discrimination Act at 35

Abstract

Thirty-five years ago, Congress passed the Pregnancy Discrimination Act to overturn a Supreme Court decision refusing to recognize pregnancy discrimination as a form of discrimination based on sex. Now, three and a half decades later, women whose work lives are impacted by pregnancy are again finding themselves unprotected from discrimination. Lower court rulings have eviscerated the Act’s protections at the same time that an expansion of worker rights under the Americans with Disabilities Act should redound to the benefit of pregnant women by expanding the pool of comparators who receive accommodations. By following trends in discrimination law generally - equating discrimination with animus, resisting “bootstrapping” of claims, and hostility to accommodation mandates - rather than the text and structure of the PDA, lower courts have surreptitiously reinstated the cramped approach to pregnancy that prompted Congress to pass the PDA in the first instance.

This Article takes a comprehensive look at the PDA as interpreted by the courts. This undertaking is important in its own right, since neither commentators nor the courts themselves appreciate just how bad the PDA case law has become. The recent positive attention to judicial progress in addressing the “maternal wall,” barriers to equality for working mothers, has eclipsed the poor state of affairs under the PDA. And yet, pregnancy discrimination is the first block in the maternal wall, with lasting repercussions for women’s working lives. The Article chronicles how a spate of recent decisions in the lower courts has made major inroads into the Act’s protections, leaving the PDA of little use to the women who need it most. Using the lens of social justice feminism, which interrogates how race, class and gender intersect, the Article provides a much-needed corrective to discussions about motherhood and work that implicitly center around privileged women, with discussions about work-life “balance” and “choice” in opting out of the workplace. Redirecting the discussion to less-privileged women reveals a very different picture: women who want and need to work, but whose pregnancies conflict with the way their employers have structured the workplace. These are the women who are particularly hurt by recent trends in judicial interpretation of the PDA.

Keywords: gender, pregnancy discrimination, disability

JEL Classification: K31, J71, J16