Reconstructing Pregnancy

73 Pages Posted: 8 Jul 2016 Last revised: 29 Jul 2016

Date Written: April 6, 2016

Abstract

Congress passed the Pregnancy Discrimination Act in 1978 to amend Title VII's prohibition against sex discrimination to include discrimination on the basis of pregnancy, childbirth, and related medical conditions. More than thirty-five years after the passage of the Pregnancy Discrimination Act, courts have failed to fulfill that act's promise. This failure lies, in part, in the law's tendency to reduce pregnancy, with all of its social and cultural meaning, to its "purely" biological elements. For the purposes of the Pregnancy Discrimination Act, courts ground the legal conception of pregnancy in a form of biomedical essentialism that treats pregnancy as a universal given. Under the PDA, courts have reduced pregnancy discrimination only to the discrimination that occurs during gestation or because of gestation-related physiological conditions. This reductive definition of pregnancy is not only profoundly under-inclusive and unresponsive to the needs of workers but also contradictory and incoherent. In response, this article proposes that pregnancy should be reconstructed in law. Judges, administrative actors, and advocates should reject reductive forms of biomedical essentialism and embrace possibilities beyond biology. Pregnancy should not, and indeed cannot, be understood independent of the social, cultural, and relational interactions that give it meaning. Pregnancy is, in fact, pregnant with social and cultural meaning. Reconstructing pregnancy in this way has the potential to provide much needed clarity to the Pregnancy Discrimination Act, and to ensure that pregnancy discrimination is comprehensively prohibited -- whether it occurs before, during, or after conception.

Keywords: Title VII, feminist legal theory, embodiment theory, pregnancy discrimination, PDA, feminist philosophy

JEL Classification: J13, J16, J71, J78, K31

Suggested Citation

Matambanadzo, Sarudzayi M., Reconstructing Pregnancy (April 6, 2016). 69 SMU L. Rev. 187; Southern Methodist University Law Review, Vol. 69, 2016; Tulane Public Law Research Paper No. 16-9. Available at SSRN: https://ssrn.com/abstract=2805624

Sarudzayi M. Matambanadzo (Contact Author)

Tulane University - Law School ( email )

6329 Freret Street
New Orleans, LA 70118
United States

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