The Fourth Trimester
66 Pages Posted: 20 May 2014 Last revised: 26 Nov 2014
Date Written: May 19, 2014
This article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial period of three to six months after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth, and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, anti-discrimination law has failed to acknowledge the demands of the fourth trimester; it operates from the presumption that pregnancy begins at conception and ends with the birth of the infant. Without employing a fourth trimester framework, the current federal anti-discrimination regime will continue to permit discrimination against women in relation to pregnancy because employers can discriminate on the basis of activities which typify the fourth trimester of the pregnancy. It is time for judges, administrative actors, movement lawyers, and other policy makers to recognize that discrimination on the basis of fourth trimester activities like breastfeeding, caring for newborn infants, or recovery constitute pregnancy discrimination that should be prohibited by law.
Keywords: Pregnancy, Anti-Discrimination, Title VII, FMLA, 2008 ADA Amendments, Feminist Legal Theory
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