Tuesday, December 8, 2020

Bornstein on Pregnancy Discrimination & the Meaning of Equaltiy

BornsteinStephanie Bornstein has just posted on SSRN her article The Politics of Pregnancy Accommodation, 14 Harv. Law & Policy Rev. 293 (2020). It's a great description of the history -- and likely future -- of the meaning of "equality" in the context of pregnancy. Here's the abstract:

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by federal law.

This Article documents how decades of internal political conflict about what was best for working women resulted in tortured Supreme Court precedent on, and divergent legislative approaches to, accommodating pregnancy at work. While a diverse feminist movement took a variety of strategies to support pregnant workers, this Article focuses on one core debate in antidiscrimination law: the struggle between a formal or “sameness” and a substantive or “difference” approach to gender equality around pregnancy. It then documents how a third, “reconstructive” approach helped modern advocates move beyond comparing women to men as workers and toward critiquing gendered workplace structures. Striking a hopeful tone, the Article proposes that gender advocates’ legal and political gains have now set the stage for U.S. law to close the remaining gaps in pregnancy accommodation—to fully reflect the fact that pregnant women work and that a significant portion of workers become pregnant.



Employment Discrimination, Scholarship | Permalink


Many thanks to Stephanie Bornstein for her concise summary of the perennial debate between "sameness" and "difference" feminists' treatment of pregnancy (Bornstein, “The Politics of Pregnancy Accommodation,” 14 HARVARD LAW AND POLICY REVIEW 294 (2020)). But at the risk of appearing defensive (as I was one of the initial conceptualizers of the Family and Medical Leave Act (FMLA) in part as a way of bridging the gap between the two approaches), I don’t think Professor Bornstein does justice to the solution represented by the FMLA. It is true that the FMLA approach embodies a formal “sameness approach” in that it compares pregnancy as a disability to other (temporary) disabilities, and childcare performed by men to childcare performed by women. But it does much more than that.

First, the FMLA model can as easily be seen as demanding conformity to a “female norm” as to a male one. Because women need a minimum amount of leave for disability related to pregnancy and childbirth, this model requires all workers to receive the amount of leave that a prototypical female needs in disability leave. Indeed, although in the end the FMLA’s 12 weeks of leave were watered down from 16 in the legislative sausage-making process, the amount of leave was determined by the amount of time that women normally took for purposes of pregnancy and childbirth (4 months). Moreover, the FMLA proponents staunchly resisted proposals that would have whittled the model down to “parental” leave (leave to care for new babies) only – proposals that would have ignored the disability that all women experience during childbirth and the varying periods of disability that women may experience before and after childbirth (or allowed those periods of disability to simply be absorbed into parental leave). The female norm is that women both experience disability and need and want time off to care for and “bond” with their new babies, and that FMLA model centers that norm by covering both.

More important, by broadening the relevant categories from pregnancy disability to all temporary disabilities on the one hand, and from the childcare of newborns performed primarily by women to the family caregiving responsibilities of all parents on the other, the FMLA takes a step back from a narrow focus on pregnancy and childbirth to look broadly and comprehensively at all workers’ needs across their worklives. This approach rejects the question “whom should pregnant workers be treated the same as?” to ask instead “how should female and male workers be treated to be sure both of their needs are accommodated?” I would that argue broadening the lens in this way is a deeply feminist if not radical viewpoint. The heart of the feminist enterprise is to uncover both the ways in which men and women who meet the same standards are treated differently and the ways in which, if those standards have the effect of judging women and men differently even when evenly applied, there are standards that better serve the purpose that don’t have that effect. In Title VII parlance, this is the difference between disparate-treatment and disparate-impact analysis. In the context of pay discrimination, this is the difference between “equal pay” and “comparable worth.” In the context of leave and workplace accommodations, this is the difference between leave and workplace accommodations for pregnancy/childbirth and leave and workplace accommodations for family and medical needs. Like the reconstructive approach that Bornstein cites, id. at 310, the FMLA model centers workplace structures and norms and seeks to de-gender them.

Posted by: Donna R Lenhoff | Dec 9, 2020 4:17:39 PM

Thank you for posting your comments, Donna. I appreciate you adding your valuable perspective for folks who may read the piece. And I do not disagree that it took radical vision for you and your colleagues to get the FMLA enacted in 1993—still the only federal law to offer pregnancy leave and a foundational model for using the law to counter gender stereotypes on who should provide family caregiving.

Posted by: Stephanie Bornstein | Dec 10, 2020 11:30:23 AM

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