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Pregnancy discrimination and civil rights

Pregnancy discrimination remains one of the most prominent forms of sex-based discrimination in U.S. workplaces. While maternity (and paternity) benefits in the U.S. pale in comparison to those mandated by law in many Western and Northern European countries, U.S. federal civil rights law does include some basic protections against discrimination based on pregnancy.

Since the civil rights and equal rights movements of the 1960s and 1970s, the idea that it is wrong and unacceptable to discriminate against employees on the basis of race and sex has slowly come to hold sway over greater and greater numbers of Americans, albeit still not all of us. Although media pundits constantly bemoan how litigious our country has supposedly become - a false impression that has been fed by industry lobbying on the one hand and propagandistic pop cultural production on the other - the uncomfortable fact for these commentators is that much of the progress in the struggle against discrimination has been accomplished through the courts. The law and its deterrent effect remain one of the most potent tools in this struggle for one basic right: to not be fired, humiliated, harassed, or otherwise mistreated for factors that are entirely outside of your control. While the law does in theory provide this minimal protection for individuals, the law in the U.S. in general is much less protective of the right to not be discriminated against on the basis of race, sex, etc., when the discrimination comes in the form of coercing individuals into downplaying their difference. NYU law professor Kenji Yoshino has theorized that while civil rights law in the U.S. has increasingly come to protect certain classes of individuals based on identities that are seen as relatively fixed, immutable, or outside of one’s control - sex and race being the prime examples - there is a gaping hole in civil rights law when it comes to protecting individuals’ rights to not be discriminated against on the grounds of ostensibly less fixed identities and/or the apparently chosen aspects of identity, even when those identities are in theory protected statuses. Yoshino argues that the jurisprudence hinges on a “status vs. behavior” distinction, in which the former are more generally protected and the latter usually not. (For an accessible and eloquently written exposition of this argument, we warmly recommend Yoshino’s book, Covering). For example, while federal courts have in general come down against discrimination that is clearly based on racial or gender animus (putting aside for the moment this troubling trend), the courts have generally not protected individuals’ claims to discrimination against them based on aspects of their racial or sexual identity that are somehow within their control. Perhaps most famously, in Rogers v. American Airlines, federal courts found that an American Airlines dress code rule prohibiting “all-braided hairstyles” did not discriminate against women or African-Americans, even though in theory the courts protect against racial and sexual discrimination and wearing braided hair is an exceedingly common practice among African-American women and arguably a key expression of black female identity.

But while the courts have tended only to protect individuals based on those factors that are seen as entirely outside of their control, pregnancy discrimination law is an important exception to this rule. In 2006, Verizon paid almost $50 million in a settlement with female employees after Verizon’s predecessors were “accused of violating federal law by denying women pension and other benefit accruals when they spent time on pregnancy or maternity leave.” Peter Lattman, writing for the Wall Street Journal Law Blog at that time, quoted Elizabeth Grossman of the EEOC as saying that pregnancy discrimination is still a problem: “Some employers are getting educated and changing practices, but many are not.” According to the EEOC, “discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments.” More specifically, pregnancy-related protections of Title VII of the 1964 Civil Rights Act (later amended by the Pregnancy Discrimination Act) include the prevention of discrimination in hiring, as well as protections for pregnancy and maternity leave, health insurance, and the provision of fringe benefits. When it comes to pregnancy leave, employers covered by Title VII basically cannot force women to take leave or deny them the right to return to their jobs after taking leave, on the basis of their pregnancy. On the one hand, “pregnant employees must be permitted to work as long as they are able to perform their jobs,” while on the other, “employers must hold open a job for a pregnancy-related absence the same length of time jobs are held open for employees on sick or disability leave.” The principle here is not that employers can never make any decision that would adversely affect a pregnant woman. Rather, it is that pregnant women cannot be singled out for adverse treatment due to their pregnancy. For more extensive information on existing legal protections against pregnancy discrimination, see the EEOC’s pregnancy discrimination page.

Interestingly, while the widespread availability of contraception and abortion has made pregnancy more of a choice in the late 20th and early 21st centuries than it hitherto had been, the language of anti-pregnancy discrimination law is predicated on defining pregnancy discrimination as a subset of sex discrimination. And while civil rights law in the U.S. tends to protect unchosen rather than chosen statuses (and “statuses” themselves rather than “behaviors”), pregnancy discrimination law represents the protection of a chosen status - pregnancy - within the aegis of a protected, unchosen status - gender. How to explain this apparent anomaly in the law, especially given the fact that these pregnancy discrimination laws were not written before the advent of legalized abortion and widely available contraception, but indeed in the exact same historical period as the Supreme Court’s decisions in Griswold v. Connecticut and Roe v. Wade - in other words at the historical moment in the U.S. in which pregnancy was actually becoming more of a choice than it had been before?

Title VII was passed as part of the Civil Rights Act in 1964, while the Pregnancy Discrimination Act was passed by Congress in 1978. Yoshino provides an interesting answer to our questions, that points to the interplay between the courts and Congress in the back-and-forth struggle to recognize and restrict rights of those years:

What will laws prohibiting sex discrimination do about disadvantage based on pregnancy or motherhood? The Supreme Court delivered a shocking answer to this question in the 1974 case of Gedulig v. Aiello. The Court held that discrimination on the basis of pregnancy was not sex discrimination under the Constitution because not all women got pregnant, or in the Court’s words, because the group of “nonpregnant persons...includes members of both sexes.”

When I teach this case, my students laugh nervously. Is the Supreme Court really saying pregnancy discrimination is not sex discrimination? I not only answer in the affirmative, but suggest the Court is making a familiar move, protecting the unchosen but not the chosen aspects of an identity. Just as courts protect skin color but not language, here the Court is protecting chromosomes but not pregnancy. What makes the logic in the pregnancy case harder to swallow is that while all individuals can learn a language, only women can get pregnant. I ask my students why the Gedulig Court chooses in 1974 to cast pregnancy as unprotected conduct, rather than casting the capacity to get pregnant as a protected biological status. They soon realize the case was decided the year after Roe v. Wade. As law professor Dan Danielsen has noted, once Roe protected a woman’s right to choose, it was a short step to defining that choice as outside the ambit of the Court’s equality protections. Gedulig has never been overruled, which means the state can still discriminate on the basis of pregnancy with relative impunity (163-164).

-Martha McBrayer


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