Pregnancy as a Normal Condition of Employment: Comparative and Role-Based Accounts of Discrimination

39 Pages Posted: 31 Jan 2018  

Reva Siegel

Yale University - Law School ; University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Date Written: January 23, 2018

Abstract

As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination.

In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women’s labor force participation, and affirmed a world in which women as well as men would combine work and family—a world in which pregnancy would be a normal condition of employment. A social-roles analytic helps explain the logic of pregnancy discrimination, whether it assumes the form of hostility to pregnant workers or a simple failure to accommodate.

Drawing on this social-roles analytic, the Lecture offers a reading of Young v. UPS, the Supreme Court’s most recent decision on the PDA. Young breaks from an exclusively comparative approach and authorizes pregnancy accommodation claims under both disparate treatment and disparate impact frameworks. The Court’s approach is informed by a growing popular consensus. As the PDA turns forty, nearly half the states have enacted pregnant worker fairness acts supporting reasonable accommodation of pregnancy in the workplace.

Keywords: pregnancy, discrimination, disparate treatment, disparate impact, accommodation, employment, pregnant worker fairness acts

Suggested Citation

Siegel, Reva B., Pregnancy as a Normal Condition of Employment: Comparative and Role-Based Accounts of Discrimination (January 23, 2018). William & Mary Law Review, Forthcoming; Yale Law School, Public Law Research Paper No. 627. Available at SSRN: https://ssrn.com/abstract=3108210

Reva B. Siegel (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-6791 (Phone)

University of California, Berkeley - Berkeley Comparative Equality & Anti-Discrimination Law Study Group

Boalt Hall
Berkeley, CA 94720-7200
United States

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