a bird and a bottle

Another Reason Why the Supreme Court Needs to Address Pregnancy Discrimination

As I have noted before, the Supreme Court’s pregnancy discrimination jurisprudence is pretty stingy. In Geduldig v. Aiello, the Court held that under the Equal Protection Clause, pregnancy discrimination is not sex discrimination. In the (in)famous footnote 20, the Court explained why:

hile it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed [417 U.S. 484, 497] to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

So pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment because the line is not drawn between men and women but between pregnant people (who are only women) and non-pregnant people (men and women).

Congress was unhappy with this result and passed the Pregnancy Discrimination Act, which specifies that for the purposes of the federal anti-discrimination statute (Title VII), pregnancy discrimination IS sex discrimination. But the constitutional holding in Geduldig stands.

And today I read on the Feminist Wire that Pregnancy Discrimination claims are at an all time high.

A record 4,901 pregnancy discrimination complaints were filed with the Equal Employment Opportunity Commission (EEOC) in 2006. However, the actual number of pregnancy discrimination cases may be higher, as many women see filing complaints as a “career killer,” said EEOC spokesperson David Grinberg, according to the Baltimore Sun.

The most common discrimination complaints from pregnant women are unlawful demotions, firing, and not being hired in the first place, according to the Kaiser Daily Women’s Health Policy Report. Maria Salacuse, an EEOC attorney in Baltimore, said that as more women become aware of their rights under the law, more are willing to file complaints, according to the Sun.

Yes, these complaints are made to the EEOC and are controlled by Title VII and the Pregnancy Discrimination Act…and so discrimination on the basis of pregnancy is illegal and women can file suit under Title VII. But go one step further. Why is there still so much discrimination on the basis of pregnancy? I would argue that it’s at least in part because the of the Supreme Court’s stance on pregnancy. There’s less of an incentive to sue if you can recover only under Title VII and not for a constitutional violation as well; employers know this and so there’s less of an incentive to prevent discrimination.

Part of this, of course, is a result of the continuing problem of work/life balance; employers expect that women will not continue to work after giving birth, so why not push them out during pregnancy and avoid dealing with their maternity leave. But it’s not only that. Because when the Supreme Court has sanctioned discrimination on the basis of pregnancy, it gives employers a pass.

It’s time for the Supreme Court to bring its pregnancy jurisprudence into the 20th century, particularly now that it’s the 21st.


2 Comments so far
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Are there statics as to how effective claims filed under title VII have been? (Not that it is an adequate alternative; just to know – especially given the current makeup of the court and the unlikelihood of constitutional protection of pregnancy in the near future.)

Comment by professorplum

[…] the least of which is that equality is explicit in the Constitution whereas privacy is not. But, as I have noted before, the Court’s pregnancy jurisprudence stands between us and an equality rationale for […]

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