Unprotected Sex: The Pregnancy Discrimination Act at 35

By Brake, Deborah L.; Grossman, Joanna L. | Duke Journal of Gender Law & Policy, Fall 2013 | Go to article overview

Unprotected Sex: The Pregnancy Discrimination Act at 35


Brake, Deborah L., Grossman, Joanna L., Duke Journal of Gender Law & Policy


INTRODUCTION

Congress passed the Pregnancy Discrimination Act of 1978 (PDA) with a specific purpose in mind--to override the Supreme Court's refusal in a 1976 case to see pregnancy discrimination as a form of sex discrimination under Title VII. (1) The Act consists of two clauses. The first defines sex discrimination to include discrimination on the basis of "pregnancy, childbirth, and related medical conditions." (2) A second clause directs employers to treat pregnant workers the same as other employees with a similar "ability or inability to work." (3) The PDA brought about some immediate and significant changes in employer policies relating to hiring, firing, and benefits. (4) In a series of decisions interpreting the PDA, the Supreme Court has bolstered the Act's force with broad interpretations tailored to its underlying purposes. (5) But the PDA turns thirty-five this year, and with its advancing age have come complications. Judicial complications.

Over time, as interpreted by the lower courts, the PDA has withered in scope and come to embody the same narrow view of pregnancy discrimination that drove the notorious Supreme Court decisions that led to its enactment in the first place. In recent decisions, lower federal courts have taken a stilted view of the definition of pregnancy and the meaning of discrimination, to the detriment of women generally, but especially working class and lower-income women. In so doing, the courts have misread the statute and reinforced the very gender ideology surrounding work and maternity that the Act was intended to dislodge.

The PDA case law has been burdened by some of the same pitfalls that have cut short the reach of discrimination law generally: a resistance to "bootstrapping," a hostility toward accommodation mandates, and a narrow view of discrimination as conscious animus against the protected group. While not limited to the PDA, the emergence of these themes in PDA cases is jarring given the distinctive language of the Act. Running counter to the plain text of the Act, the restrictive lower court decisions are animated by stereotypical gender ideologies about pregnancy and maternity in relation to paid work.

This article takes a comprehensive look at recent case law under the PDA, while offering a critical commentary on the gender ideology that lies behind these decisions and charting the stakes for women in a reinvigorated Act. The survey of PDA decisions is an important undertaking in its own right, since it is not widely appreciated just how much courts have narrowed the PDA's protections. The PDA cases are an increasingly sorry lot, including cases like the recent Fourth Circuit ruling in Young v. UPS, in which the court held that a pregnant woman could lawfully be denied a light-duty assignment necessitated by a medical restriction on lifting even though the company made such accommodations for on-the-job injuries, for disabilities entitled to accommodation under the Americans with Disabilities Act (ADA), and for conditions, medical or otherwise, leading to the loss of driving certification. (6) As this article explains, the recent expansion of the ADA, which should redound to the benefit of PDA plaintiffs by increasing the pool of comparators, has ironically made matters worse. (7)

From recent successes confronting the "maternal wall," one might get the impression that pregnancy discrimination is a thing of the past or that the law adequately responds to it. (8) But the maternal wall--the barriers to employment equality faced by mothers--begins with pregnancy. (9) Indeed, pregnancy discrimination makes up a significant chunk of the maternal wall. According to one author, reviewing the literature on pregnancy discrimination, "[a]lmost half of all working women in western countries have experienced tangible discrimination on this basis, such as being denied training opportunities, changes to job descriptions, criticism of their performance or appearance, reduced working hours and dismissal without good reason after the announcement of pregnancy. …

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