Wednesday, December 10, 2014
On the heels of oral argument at the US Supreme Court on Young v. United States Parcel Service, which concerns the Pregnancy Discrimination Act of 1978 (“PDA”), Mary Ziegler has posted (SSRN) “Choice at Work: Young v. United States Parcel Service, Pregnancy Discrimination, and Reproductive Liberty.” Based on original archival research, Ziegler argues that the PDA embodies a principle of “meaningful reproductive choice” that casts doubt on the Fourth Circuit’s opinion in Young. More from the abstract:
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. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights. 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 federal Pregnancy Discrimination Act (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 calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
Hat tip: Legal History Blog