The Thirtieth Anniversary of the Pregnancy Discrimination Act: Cause for Celebration, but also Reflection on the Progress Yet to be Made

This week marks the thirtieth anniversary of an important piece of federal civil rights legislation - the Pregnancy Discrimination Act of 1978. Without question, this is an act worth celebrating: It ended a longstanding era of lawful exclusion of pregnant women from the workforce and replaced it with an era of unprecedented access to jobs before, during, and after pregnancy.

Yet, pregnant workers today continue to face high levels of discrimination and, more importantly, to lack some basic protections that are necessary to enable some women to continue working throughout pregnancy. This column will consider gaps in current law that still render pregnant women second-class citizens in the workplace and will argue that we should work towards a new standard of equal inclusion, rather than just equal access.

The Enactment of the PDA, Thirty Years Ago This Week

When Congress approved the PDA on October 31, 1978, it did so in response to a long history of open discrimination against pregnant women in the workplace, and, more immediately, to two recent Supreme Court decisions that were highly adverse to pregnant women and that seemed to reinforce the lawfulness of that history.

Prior to the PDA's enactment, the Court had ruled first, in the 1974 case of Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore did not warrant any kind of heightened judicial scrutiny. Then, two years later, the Court had applied that same reasoning in General Electric Co. v. Gilbert to Title VII, ruling that the federal statutory ban on sex discrimination did not extend to pregnancy discrimination. Together, these rulings meant that governmental entities and private employers could continue to openly discriminate against pregnant women by refusing to hire them, forcing them to quit upon becoming pregnant, or changing the conditions of their employment in any other way that suited the employers' purposes.

The highly mobilized and effective Campaign to End Discrimination Against Pregnant Workers pushed successfully for the enactment of the PDA, which promised a set of basic rights necessary to achieve gender equality for women in the workplace. The PDA guarantees eligible employees (those who work for employers with at least fifteen employees) two substantive rights: (1) the right against being treated adversely because of pregnancy; and (2) the right to be treated "the same" as other temporarily-disabled employees with respect to leave, benefits, insurance, and so on.

As I have described in a previous column, the Supreme Court eventually interpreted "the same as" to mean "no worse than," leaving employers the opportunity, but not a requirement, to accommodate pregnancy-related disability even without providing the same accommodations to comparably-disabled workers.

The Promise of the PDA: Equal Citizenship for Women

The legislative history of the PDA focuses a great deal on overruling the specific effects of Gilbert - a step that was necessary to open the basic protections of Title VII to pregnant and childbearing women. But peppered throughout the committee reports and floor debates relating to the PDA is talk of broader goals - the desire, among others, to guarantee women equal "citizenship." As one witness testified to a Congressional Subcommittee, "[p]regnant workers and workers who are new mothers are, fundamentally, workers. They should not be relegated to second class citizenship in employee rights or benefits."

It is common for advocates or legislators to invoke notions of citizenship - or, more specifically, the desire to avoid relegating a group to "second-class citizenship" - when pushing for new civil rights laws. It's a powerful rhetorical device that calls immediately to mind disturbing periods in history when particular groups were deprived of important rights - suffrage, jury service, the right to own property, and so on - despite having the same formal status as U.S. citizens.

Though such citizenship references are often purely rhetorical, the notion of full and equal citizenship can provide a powerful normative framework for assessing the degree to which a group has become integrated into society or, in the alternative, remains marginalized. "Citizenship" is obviously a term used most often to describe nationality, or one's formal status in a country. But it has also been used more broadly by scholars to describe a multi-dimensional concept that connotes inclusion, participation, or belonging. "Equal citizenship" or "full citizenship" thus describes the set of rights and benefits that accrue to full members of society.

One dimension of citizenship - social citizenship - is particularly useful when examining the experience of pregnant women in the workplace. The connection between work and citizenship is multi-faceted, but undeniable. Work provides individuals with the independence necessary to exercise political rights and with an important forum for interacting with other members of society. Work also, as scholars like Vicki Schultz have argued, is deeply connected to self-identity and dignity. Perhaps most importantly of all, work provides the pathway to economic security and the ability to provide for one's family.

The claim made here, in the context of the battle against pregnancy discrimination, is that the tradition of social citizenship, which seeks equal access to paid work, must encompass at least some protection for a pregnant woman's right to work despite the potential physical limitations of pregnancy. On this theory, the state, at a minimum, should facilitate pregnant women's access to work through reproductive episodes by defining "discrimination" to include the failure to provide reasonable and necessary accommodations for pregnancy-related disability.

Why Current Law Falls Short of Delivering on the Promise of Equal Citizenship

Today, pregnancy discrimination law, the cornerstone of which is the PDA, opened many doors for pregnant women - starting a long-term trend towards women working more and longer during pregnancy and resuming work more quickly after childbirth. Yet it has still has serious gaps in its protections.

As I have explained in prior columns of April 1 and April 15, 2008, the law fails to deal coherently with situations in which pregnant women are able to work but are experiencing some diminishment in capacity due to their condition. This failure is manifested in many ways, including, to take just three examples, when courts uphold employer policies that offer light-duty assignments, but exclude pregnant women from them; when courts permit pregnant women to be fired or put on forced unpaid leave because they cannot perform exactly the same set of tasks as they could before and after pregnancy; and when courts refuse to use disparate impact law to police harsh-but-neutral policies that disproportionately disadvantage pregnant women and are of dubious business necessity.

The PDA grants rights based primarily on a pregnant woman's capacity. The law protects many women against "pregnancy discrimination," but it provides absolute rights only to the extent a pregnant woman is able to work at full capacity, uninterrupted by pregnancy, childbirth, or related medical conditions. The law does not generally permit employers to refuse to hire pregnant women or to make assumptions about their inability to carry out certain tasks. This right against stereotyping is important, but provides no protection when the assumption that the pregnant woman has job-related limitations is correct.

Indeed, current federal law does not insist that employers provide accommodations to enable a woman to continue working through her pregnancy, and permits employers to fire employees who suffer a full or partial temporary loss in capacity due to pregnancy, subject only to the very minimal protection provided by disparate impact law. The pregnancy discrimination framework, which ties rights to capacity, fails to account for the actual effects of pregnancy on women's bodies and work capacity and thus fails to meet the needs of many pregnant working women today, especially those who labor in non-traditional jobs that can be physically strenuous or hazardous.

Supplementing Antidiscrimination Protections with an Equal Citizenship Ideal Is the Path that Will Ultimately Give Pregnant Women True Equality

As a normative ideal, equal citizenship calls for all members of society to have the opportunity to make use of their natural talents and abilities, and to participate in all aspects of private and public life. Justice Ruth Bader Ginsburg invoked this concept in United States v. Virginia, in which the Supreme Court struck down the all-male admissions policy of the Virginia Military Institute. She wrote that the government does not act "compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature -- equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities." The treatment by employers of pregnant workers, because of the common conflicts between pregnancy and work and because of the law's failure to adequately address them, still falls short of this ideal. Let's take the anniversary of the PDA as an occasion to recommit to gender equality and take the steps necessary to achieve it.