Monday, April 10, 2017
Long before J.K. Rowling wrote about an invisibility cloak that allowed Harry Potter and his friends to disguise their presence and move freely without detection, cloaks, both literally and figuratively, were associated with hiding and disguise. Pregnancy is often enshrouded as well, not only by women who want time before announcing publicly that they are expecting a child, but also in the course of public policy discussion and resulting legislative or regulatory enactments.
In the United States, public policy decisions concerning employment tend to avoid the important issue of pregnancy in the workplace, and this avoidance has disproportionately negative implications for women. “Cloaking,” as I use it here, refers to the various ways the United States legislates issues related to women in the workplace without directly discussing the uniqueness of pregnancy and its impact on employment and the wage gap. In particular, the policy discussions do not address transparently that the modern workforce requires job changes for economic advancement, and current policies focusing on accommodation and family leave fail to protect job changes during childbearing years.
Labor-market demands and economic self-sufficiency for women require policy makers in the United States to cast off the cloak that camouflages pregnancy as a subset of other policy concerns—gender, disability, family—and fully embrace pregnancy as a crucial issue in developing economic policy. The Equal Employment Opportunity Commission (EEOC) receives thousands of complaints of pregnancy discrimination each year; these numbers peaked in 2008 but remain steadily higher than in the previous decade. In an effort to add transparency to the issue, the EEOC conducted a public meeting in preparation for issuing new guidance to clarify further regulations related to pregnancy and its economic impact. At the public meeting, experts identified a direct connection between pregnancy discrimination and economic self-sufficiency for women and their families. As one expert noted, citing the “motherhood wage penalty” of as much as five percent per child, “[m]otherhood constitutes a significant risk factor for poverty.”
Friday, March 24, 2017
A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.
Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.
Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.
There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.
In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”
A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.
In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.
For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016).
Monday, March 20, 2017
In light of the article Amid Charges By Former Law Student On Gender Equality, Former Clerks Defend Gorsuch, here's a summary by the Equal Employment Opportunity Commission on what the existing state of the law is (and which a future SCOTUS could change) regarding employer treatment based on existing or intended pregnancy.
These Questions and Answers address the EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues (Guidance) originally released on July 14, 2014, and recently updated in light of the Supreme Court's decision in Young v. United Parcel Serv., Inc., --- U.S. ---, 135 S. Ct. 1338 (2015). The updated Guidance is available at http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.***
1. What workplace actions are prohibited under the PDA?
Under the PDA, an employer cannot fire, refuse to hire, demote, or take any other adverse action against a woman if pregnancy, childbirth, or a related medical condition was a motivating factor in the adverse employment action. The PDA prohibits discrimination with respect to all aspects of employment, including pay, job assignments, promotions, layoffs, training, and fringe benefits (such as leave and health insurance).***
3. May an employer ask an employee or applicant whether she is pregnant or if she intends to become pregnant soon?
Although Title VII does not prohibit employers from asking applicants or employees about gender-related characteristics such as pregnancy, such questions are generally discouraged. The EEOC will consider the fact that an employer has asked such a question when evaluating a charge alleging pregnancy discrimination. Adverse decisions relating to hiring, assignments, or promotion, that are based on an employer's assumptions or stereotypes about pregnant workers' attendance, schedules, physical ability to work, or commitment to their jobs, are unlawful.
Friday, November 4, 2016
The Justice Department filed a proposed consent decree with the city of Florence, Kentucky, to resolve a pregnancy and disability discrimination lawsuit brought by the department under Title VII of the Civil Rights Act of 1964 and Title I of the Americans with Disabilities Act (ADA).
According to the department's complaint, Florence discriminated against two pregnant police officers by denying both officers' requests for light duty. The department alleges that Florence previously assigned light duty positions to employees who were temporarily unable to perform their regular job duties, regardless of why the employee needed light duty. In April 2013, within months of a police officer's pregnancy-related light duty request, Florence limited light duty to employees with on-the-job injuries. Florence also required that employees with non-work-related illnesses, injuries or conditions demonstrate that they had "no restrictions" before they could return to work.
In 2014, according to the department's complaint, Police Officers Lyndi Trischler and Samantha Riley requested light duty when they were unable to perform their duties as patrol officers due to their pregnancies. Officer Trischler, who was diagnosed with a high-risk pregnancy and suffered complications, also requested light duty as a reasonable accommodation for her pregnancy-related disability. Florence denied the requests and required each to take leave. After placing Officers Trischler and Riley on leave, Florence continued to grant light duty to other employees who were similar in their ability or inability to work.
This is the department's first lawsuit challenging a discriminatory light duty policy since the U.S. Supreme Court's ruling regarding light duty policies and pregnant employees in Young v. United Parcel Service. It is also the department's first lawsuit challenging disability-related "no restrictions" policies in the workplace.
"No woman should ever have to choose between having a family and earning a salary," said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department's Civil Rights Division. "Equally important, individuals with disabilities who need reasonable accommodations deserve an opportunity to keep their jobs. The Justice Department will continue working tirelessly to protect pregnant women against unlawful discrimination in the workplace."
Under the consent decree, which still must be approved by the U.S. District Court for the Eastern District of Kentucky, Florence will adopt new policies that allow accommodations, including light duty, for pregnant employees and employees with disabilities; establish an effective process for receiving and responding to employees' accommodation requests and discrimination complaints; and ensure the proper maintenance of employee medical records. In addition, Florence will train all supervisors, administrators, officers and employees who participate in making personnel decisions related to light duty and other accommodation requests made pursuant to Title VII and the ADA. Florence has also agreed to pay $135,000 in compensatory damages and attorney's fees as well as restore the paid leave that Officers Trischler and Riley were forced to use.
Thursday, August 11, 2016
Sarudzayi M. Matambanadzo,Reconstructing Pregnancy, 69 SMU L.Rev. (2016)
Abstract:Congress passed the Pregnancy Discrimination Act in 1978 to amend Title VII's prohibition against sex discrimination to include discrimination on the basis of pregnancy, childbirth, and related medical conditions. More than thirty-five years after the passage of the Pregnancy Discrimination Act, courts have failed to fulfill that act's promise. This failure lies, in part, in the law's tendency to reduce pregnancy, with all of its social and cultural meaning, to its "purely" biological elements. For the purposes of the Pregnancy Discrimination Act, courts ground the legal conception of pregnancy in a form of biomedical essentialism that treats pregnancy as a universal given. Under the PDA, courts have reduced pregnancy discrimination only to the discrimination that occurs during gestation or because of gestation-related physiological conditions. This reductive definition of pregnancy is not only profoundly under-inclusive and unresponsive to the needs of workers but also contradictory and incoherent. In response, this article proposes that pregnancy should be reconstructed in law. Judges, administrative actors, and advocates should reject reductive forms of biomedical essentialism and embrace possibilities beyond biology. Pregnancy should not, and indeed cannot, be understood independent of the social, cultural, and relational interactions that give it meaning. Pregnancy is, in fact, pregnant with social and cultural meaning. Reconstructing pregnancy in this way has the potential to provide much needed clarity to the Pregnancy Discrimination Act, and to ensure that pregnancy discrimination is comprehensively prohibited -- whether it occurs before, during, or after conception.
Wednesday, August 10, 2016
Cortney Lollar, Criminalizing Pregnancy, Indiana L.J.
Abstract:The state of Tennessee arrested a woman two days after she gave birth and charged her with assault of her newborn child based on her use of narcotics during her pregnancy. Tennessee’s 2014 assault statute was the first to explicitly criminalize the use of drugs by a pregnant woman. But this law, along with others like it being considered by legislatures across the country, is only the most recent manifestation of a long history of using criminal law to punish poor mothers and mothers of color for their behavior while pregnant. The purported motivation for such laws is the harm to the child from prenatal exposure to illegal drugs. But recent scientific studies undermine the harm narrative.
This Article is the first to take a close look at the science behind these laws. Recent longitudinal studies confirm that the use of illegal drugs while pregnant, in and of itself, rarely results in long-term adverse consequences to the fetus and subsequent child. Meanwhile, the negative consequences of ingesting licit substances such as tobacco, alcohol, and other lawfully-prescribed medications, often are much greater than the potential undesirable effects of drug use. Poverty, domestic violence, and a father’s behavior prior to conception also have been shown to have significant harmful impacts on fetal development. Although the criminalization of drug use by pregnant women does not prevent impairment of the fetus and subsequent child, it often leads to additional detrimental consequences. The state regularly steps in and removes children born to women using illicit drugs while pregnant, even when there is no evidence of harm to the child and despite the documented harms to newborns from placement in the foster care system. Additionally, as every major medical organization has publicly indicated, pregnant women are less likely to seek prenatal care if they fear arrest for using drugs, creating damaging effects greater than any potential harms from the drug use.
Legislatures’ unwillingness to acknowledge the empirical evidence contradicting the rationales for this latest batch of criminal laws might cause one to wonder whether the harm to the child is truly the motivating impetus behind these laws. The existing statutes have a disproportionate impact on poor mothers and mothers of color. In fact, class and race-based constructions of motherhood go a significant distance toward explaining the presence of these laws. This Article analyzes how our current approach to the use of drugs by pregnant women relies on these troubling economic- and race-based social constructions, rather than on any scientific and empirical evidence. By challenging the erroneous presumptions motivating these laws, this Article hopes to move legislatures toward effectively addressing the more substantial risks to developing fetuses.
Tuesday, August 9, 2016
Joanna L. Grossman, Expanding the Core: Pregnancy Discrimination Law as it Approaches Full Term, 52 Idaho L.Rev. (2016)
Abstract:The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore was not a classification that merited heightened judicial scrutiny. But the ruling in Gilbert was more than insult to injury. It was both surprising — ignoring a contrary interpretation by the EEOC, as well as rulings of several federal appellate courts that had agreed with the EEOC — and devastating — leaving in place the widespread employer policies that kept pregnant women out of some jobs altogether, and out of continuous employment at almost every job.
The response to Gilbert was swift and effective. The Campaign to End Discrimination Against Pregnant Workers mobilized support for a new law that would amend Title VII, expressly prohibiting pregnancy discrimination. But the specific mission to obtain a legislative override of the Gilbert decision was animated by a more general goal — to ensure pregnant women were not left behind as the tide of employee benefits and accommodations was rising. The fear of being left behind was firmly rooted in reality — workers across the country were benefiting from a rising tide of benefits, while pregnancy was being routinely omitted from comprehensive benefit plans, and pregnant workers found themselves singled out for adverse treatment. Employers refused to hire pregnant women; forced pregnant employees to stop work at a certain point in pregnancy and prevented them from returning to work until a certain point after childbirth; and expressly excluded pregnancy from otherwise comprehensive insurance, disability and leave policies. All told, this meant that pregnant women had little hope of reasonable access to the workforce, and no hope of full integration into it.
The PDA was immediately effective in eliminating most formal employer policies that singled out pregnancy for different (and typically worse) treatment. Congress gave pregnant women the right to be treated like everyone else — allowed to work if they were fully able to work and allowed to take leave if it was otherwise available.8 But these core rights, while important, even essential, are not enough to bring about true equality for women. Thus, as the PDA approaches forty, we see a sustained effort to expand on those core rights. In some cases, the “expansion” is simply a matter of pushing courts to give the PDA its due, reading in a way that furthers Congress’s intent rather than undermines it. In others, the expansion would go beyond the existing statutory rights, as necessary to bring about not only women’s access to the workplace, but their integration into it. After setting out the core of pregnancy discrimination law, this essay will develop four expansion themes: (1) from pregnancy alone to the whole reproductive process, including the “maternal wall”; (2) from overt to implicit bias; (3) from status to effects (and thus access to accommodation); and (4) from federal to state and local protections.
Monday, April 4, 2016
All workers in New York state will soon be eligible for a guaranteed 12 weeks of paid family leave, one of Gov. Andrew Cuomo’s legislative priorities, which passed Thursday in a long-debated budget agreement.
Beginning in 2018, all full- and part-time employees who’ve been working at their jobs for at least six months will have access to up to eight weeks of leave at half their salaries. The policy, which will be funded by employees through payroll deductions, will gradually phase up over four years to 12 weeks and a maximum of two-thirds of the state’s average wage. It also guarantees job protection for all workers who take leave, even those who work for businesses with fewer than 50 employees, which are not subject to the federal Family and Medical Leave Act.
With this new policy, New York joins California, New Jersey, and Rhode Island on the elite list of U.S. states that offer guaranteed paid leave to hang out with a new baby, bond with an adopted or foster child, or care for a sick family member. Rhode Island offers four weeks of partial pay and New Jersey and California offer six, placing New York far ahead of the pack, though it still trails most other countries in the world when it comes to maternity leave.
Wednesday, February 24, 2016
Mary Ziegler (Florida State), Choice at Work: Young v. UPS, Pregnancy Discrimination, and Reproductive Liberty, 93 Denver L. Rev. 219 (2015).
In deciding Young v. United Parcel Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 (PDA) requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the PDA. For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful-choice principle suggests that while the Court reached the right outcome, Young still falls short of providing women the protection intended by the framers of the PDA. By a 6-3 vote, the Court vacated a Fourth Circuit decision vindicating United Parcel Service’s “pregnancy-blind” employment policy—that is, the policy effectively excluded pregnant workers but did not formally categorize them on the basis of pregnancy. In its application of the McDonnellDouglas burden-shifting analysis, Young removed some of the obstacles previously faced by pregnant workers relying on disparate treatment theories. However, the Court still assumes that employers could have legitimate reasons for discriminating against pregnant workers beyond their ability to do a job, creating precisely the kind of burdens on
Saturday, October 3, 2015
A former UPS driver who sued the company for putting her on unpaid leave while she was pregnant has reached a settlement with the company after her case went all the way to the Supreme Court.
An attorney for Peggy Young announced the resolution Thursday but didn't specify the terms. UPS said the parties had reached an agreement -- and said in a statement that a new UPS pregnancy accommodation policy implemented in January had helped the two sides settle.
For previous blog coverage on the Young case, see
Thursday, September 24, 2015
Dara Purvis (Penn State), The Rules of Maternity, on SSRN.
Abstract:This article examines a diverse body of laws and regulations speaking to reproductive rights, healthcare, criminal punishment of drug use, termination of parental rights, and more in order to unearth the rules of maternity: guidance provided both obliquely and explicitly by the law’s coercive power telling women both how and who should mother. Rule 1 begins in pregnancy, with the message that “your body is your child’s vessel.” Every choice that a pregnant woman makes becomes a source of potential harm to her child, and thus of potential punishment through both civil and criminal law. Rule 2 explains one way women should attempt to avoid such liability, by following the maxim that “doctor knows best.” To question medical authority or have preferences other than following doctor’s orders is to needlessly risk the health of a pregnancy or a child, and is evidence of bad mothering. After the child’s birth, the mother remains responsible for the people who enter a child’s life, leading to rule 3, “the buck stops with you.” Rule 4 provides examples of the tightropes that mothers must walk: be nurturing, but not too nurturing. Breastfeed, but not for too long. Be protective, but not overprotective. “Damned if you do, damned if you don’t.” Finally, the rules of maternity create an aspirational maternity, one that excludes women deemed undesirable as mothers, because of class, race, past actions, and so on. Rule 5 specifies that “only some women need apply” for motherhood; women who have already been judged as bad mothers should not be legally permitted to reproduce.
Saturday, August 22, 2015
A former instructor at a Christian university in Oregon is taking the school to court after it allegedly fired her for planning to have a baby out of wedlock.
Coty Richardson was working as an exercise science teacher at Northwest Christian University in Eugene, Ore., when she notified school officials that she was due to give birth in November and wanted to know if her maternity leave would create scheduling conflicts.
She claims in a lawsuit filed in state court on Tuesday that the school’s administration told her that her lifestyle was inconsistent with the university’s “faith-based standards.” She was given a choice: If she wanted to keep her job, she would either have to break up with the father or marry him.
Ms. Richardson, who is 35, said in her complaint she was “mortified and crushed” by the ultimatum and “refused to cut ties with the father of her child and her partner of twelve years.”
In July, according to her lawsuit, a school official told her she had a week to make her decision. Days later she told administrators she didn’t want to discuss her personal life. And on July 28, she says, she learned that she had lost her job.
Her lawsuit, which seeks $600,000 in legal damages, accuses Northwest Christian of pregnancy, sex and marital status discrimination, along with wrongful termination and breach of contract.
L. Camille Hebert (Ohio State), Disparate Impact and Pregnancy: Title VII's Other Accommodation Requirement
From the Abstract:
There has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., which addresses the circumstances under which an employer will be found to have violated Title VII’s prohibition against intentional discrimination for refusing to provide the same accommodation to women affected by pregnancy as that employer provides to a number of other categories of employees.
The disparate treatment theory, on which both the Young case and the EEOC guidance are focused, is undoubtedly an important resource for women who are affected by pregnancy and childbirth to seek accommodations similar to those provided to other employees. But neither the Young case nor the new EEOC guidance focuses on the provision of Title VII that is most likely to provide a mandate for employers to provide accommodation to women affected by pregnancy who experience temporary inability to perform part or all of their job functions. That provision, not raised at all in the decision before the Supreme Court and slighted by the EEOC guidance, is the prohibition on employers maintaining even pregnancy-neutral policies and practices that disproportionately disadvantage women on the basis of pregnancy and cannot be justified by business necessity. It is the disparate impact theory, rather than the disparate treatment theory, in which Title VII’s requirement to accommodate pregnancy is most likely to be found.
Thursday, August 20, 2015
Police Officer Akema Thompson felt the energy in the air the moment she walked into the Manhattan precinct station. And as soon as she stepped into the women’s locker room, she knew why.
A sign on the wall announced a preparatory course for officers interested in taking the sergeant’s exam. The Civil Service test, an initial step to climbing the career ladder in the New York Police Department, was being offered for the first time in two years, and her station was buzzing.
Officer Thompson, who dreamed of becoming a lieutenant or a captain, knew right away that this was her shot. She signed up for the $769 prep course. “I wanted that opportunity,” she said.
A month later, she discovered she was pregnant. Her due date? Oct. 19, 2013, the date of the sergeant’s exam. Officer Thompson, who was 31 at the time, was not worried. She had heard that the city offered makeup tests. “I’ll make some phone calls and everything will be fine,” she remembered telling herself.Police Officer Akema Thompson sent an email to the Department of Citywide Administrative Services requesting other options for taking the test because Oct. 19, 2013 was the same day as her due date.
She could not have been more wrong.
Thursday, August 6, 2015
Sunday, August 2, 2015
A lawsuit brought by a pregnant Alabama inmate seeking access to an abortion was dismissed by a federal judge on Friday after the woman said she had changed her mind and would carry the child.
The action essentially ended a legal clash that had seen the woman go to federal court to assert her right to an abortion, and the county’s district attorney go to an Alabama court to strip the woman of her parental rights over the fetus to block the abortion.
But Alabama has brought efforts to restrict abortion to a whole new level, as the state tried this week to stop a woman from getting an abortion by terminating her parental rights... to her fetus.
District attorney Chris Connolly filed a petition to terminate an incarcerated woman’s parental rights for the sole purpose of stopping her from ending her pregnancy. The woman, known as Jane Doe, had filed a lawsuit in order to be granted a furlough to obtain the procedure. Connolly told a local paper, “Our position, if the termination for parental rights is granted, is that [she] would not have standing to obtain the abortion.” He’s arguing that Doe’s parental rights should be rescinded because she is facing charges of chemical endangerment of a child.
Thursday, July 16, 2015
Vicki Schultz (Yale), Taking Sex Discrimination Seriously, 91 Denver L. Rev. (2015).
Abstract:The fiftieth anniversary of Title VII’s ban on sex discrimination provides an occasion to reflect on its successes and failures in achieving workplace sex equality. Although considerable progress has occurred, advances have been both uneven and unsteady. This Article shows that the primary limit on legal reform has been attitudinal. Since Title VII’s enactment, both private and public officials have defended sex discrimination and inequality by appealing to naturalized conceptions of sex difference. Persistent stereotypes portray women as more devoted to family roles than work roles, and, consequently, less committed to their jobs than men. Similar stereotypes portray women as primarily interested in female-typed jobs said to reward feminine traits and values. Viewed through the lens of such assumptions, sex-based disparities in employment are not inequalities: They are the inevitable expression of innate and cultural sex differences.
How, then, has progress occurred under Title VII? The answer lay in reformers challenging essentialist claims about sex difference.
During Title VII’s first decade, this Article shows, agencies and courts adopted an expansive reading of Title VII’s first decade only because the leaders of the emerging women’s rights movement pulled activists together to mount a strong, clear, concerted challenge to the existence and relevance of sex difference. Crafting a new conception of equality that captured American women’s growing sense of discontent while promising greater freedom to both women and men, early feminists overcame governmental resistance and achieved genuine legal progress. By the mid-1970s, they secured favorable rulings from the agencies, the Supreme Court, and the lower courts under both Title VII and the Constitution and consolidated these gains in Congress.
Yet progress was not universal and the initial momentum did not last. Rather, this Article argues, in areas of the law where feminist groups failed to establish a significant presence, or where they began to take a divided or less decisive stance as the women’s movement fractured and faded, the activist void and resulting lack of accountability permitted courts to retain or revert back to older views attributing workplace inequality to women’s difference. Two areas of law illustrate these dynamics. In cases raising women’s lack of interest as a defense to sex discrimination, women’s rights groups’ failure to regularly contest this arcane defense in the courts and agencies, coupled with resurfaced internal division that sent mixed signals about the existence and sources of women’s allegedly different work preferences, freed conservative judges to accept this defense and legitimate the underlying stereotypes in a wide swath of cases. Pregnancy discrimination law provides a second example, showing how courts stalled, and later backpedaled, as feminists initially wavered and later split over whether to characterize pregnancy as uniquely female reproductive experience unlike other medical conditions or as a temporary disability comparable to others that may affect an employee’s ability to work. Despite federal laws and agency rulings adopting the latter approach, images of pregnancy as unique and distinct from other disabilities have continued to resurface, limiting the law’s capacity to address this persistent form of discrimination.
Progress under anti-discrimination law is thus difficult to achieve and sustain: It requires committed, cohesive efforts to contest difference as a rationale for inequality and galvanize public support for change. This Article suggests that, going forward, civil rights reformers can make further headway by challenging not only the existence and relevance of such alleged differences, but also their nature and sources. New evidence highlights that many sex, race, and other-group differences typically thought to explain and justify workplace inequalities are actually created and fostered there through employment policies and practices. The hope is that, by coming together to contest and change those practices, reformers can erode both enduring patterns of employment discrimination and the essentialist ideas about difference that have undermined the law’s promise.
Thursday, June 25, 2015
The U.S. Park Police, in agreeing this week to pay $300,000 to a former detective who sued after she got pregnant and was assigned to clerical work, also threw out a longstanding policy that critics derided as out of touch with the times.
Pregnant officers were required to notify their supervisors as soon as they knew they were pregnant — and provide a doctor’s note authorizing them to keep working. “When the officer’s medical physician determines that she can no longer work, the officer shall be placed on maternity leave,” Sec. F of General Order 33.00 said.
The Park Police tweaked the policy after Renee Abt sued to say that women could notify their bosses in their first trimester of pregnancy. But the department had to throw that one out too.