Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law

Abstract

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is a common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet, this experience slips through the cracks of every major federal employment law in the United States.

The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with job protected, unpaid leave for personal or family illness. The Americans with Disabilities Act of 1990 mandates both nondiscrimination and reasonable accommodations for employees with disabilities. The Occupational Safety and Health Act of 1970 is supposed to ensure that American workplaces are free of recognized hazards that may cause serious physical harm to workers. However, as this Article demonstrates, none of these laws clearly addresses the experience of miscarriage. Moreover, courts and agencies often refuse to interpret these statutes in obvious and reasonable ways to provide meaningful equality to workers when they suffer the common experience of miscarriage.

Many scholars have examined the limitations of employment law with regard to pregnancy. This Article is the first to comprehensively examine this problem as it relates to miscarriage. In addition to bringing attention to this important issue, which silently affects so many workers, this Article provides an opportunity to challenge the artificial conceptual separation of employment and health law, as well as to consider the problem of pregnancy discrimination through the broader lens of reproductive justice.

Keywords: work, employment, pregnancy, reproductive justice, health, gender, women, disability, occupational safety, race, class, ADA, PDA, FMLA, OSHA, family leave, sick leave, labor, law, discrimination, abortion

JEL Classification: I14, J13, J15, J16, J28, J71, J81, J83, J88