The Politics of Pregnancy Accommodation

Abstract

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by federal law.

This Article documents how decades of internal political conflict about what was best for working women resulted in tortured Supreme Court precedent on, and divergent legislative approaches to, accommodating pregnancy at work. While a diverse feminist movement took a variety of strategies to support pregnant workers, this Article focuses on one core debate in antidiscrimination law: the struggle between a formal or “sameness” and a substantive or “difference” approach to gender equality around pregnancy. It then documents how a third, “reconstructive” approach helped modern advocates move beyond comparing women to men as workers and toward critiquing gendered workplace structures. Striking a hopeful tone, the Article proposes that gender advocates’ legal and political gains have now set the stage for U.S. law to close the remaining gaps in pregnancy accommodation—to fully reflect the fact that pregnant women work and that a significant portion of workers become pregnant.

Keywords: pregnancy, discrimination, antidiscrimination, employment, sex, gender, accommodation, FMLA, Title VII

JEL Classification: J7, J71