Monday, March 30, 2015
Professors Naomi Cahn & June Carbone, on the GWU Law Review blog:
At the core of the Court’s decision in Young v. United Parcel Service is a fundamental question of feminist jurisprudence: should women be treated the same as men, or should they receive special treatment?1 Which strategy would better achieve gender equality?2 The debate itself is decades-old, and the Court has—appropriately enough—zigged and zagged in its resolution of the issues.3
Liberal feminists have sought to emphasize women’s similarities to men, arguing that women do not need special treatment to “compensate” for the physical reality that women can become pregnant; on the other hand, women should not be treated differently and penalized when they do become pregnant.4 Thus, in a case that helped served as a catalyst for the Pregnancy Discrimination Act’s enactment, General Electric Co. excluded pregnant workers from its temporary disability benefits plan, and liberal feminists argued that the deliberate exclusion of pregnant workers constituted sex discrimination. The Court, however, held that the policy did not discriminate on the basis of sex because (ahem), “an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all. Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability.”5 This reasoning echoed an earlier opinion, in which the Court noted that a program which divided people “into two groups—pregnant women and nonpregnant persons”—did not necessarily constitute discrimination under the Equal Protection Clause.6
Read more here.