EQUALIZING PREGNANCY: The Birth of a Super-Statute

Sherry O’Steen was caught in a constitutional transition. Abandoned by her husband during her unexpected pregnancy, O’Steen depended on her income from work on an assembly line at the local General Electric (G.E.) factory. But her livelihood was cut off when she was forced by G.E. into unpaid sick leave for the remainder of her pregnancy. “I didn’t tell nobody at work until I started showing,” O’Steen recalls, “but one day my boss came and told me ‘You’re too big now, you’re going to have go.’” Stripped of her wages and denied temporary disability benefits from G.E., O’Steen could not afford electricity, oil for heating, or sufficient food during her pregnancy as she cared for her two-year-old daughter alone. G.E. had guaranteed employees insurance and leave benefits for temporary disabilities arising for any reason—from vasectomies to hair transplants—but the sole exception was pregnancy. According to the Supreme Court, pregnancy discrimination remains constitutional today. In a 1974 decision never revisited by the Court, the majority validated pregnancy discrimination as constitutional under the Equal Protection Clause: “While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification. . . . Lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation.” The Court applied precisely this narrow conception of sex discrimination to the private sector as well, rejecting O’Steen’s claim that pregnancy discrimination was sex-based in violation of Title VII of the Civil Rights Act. Yet today, the right of women to be free from sex discrimination on the basis of pregnancy is foundational in American society, binding private actors, legislatures, agencies, and courts alike. We can locate such a foundational right not in the judiciallyarticulated Constitution, but instead in the constitutional norms of what William Eskridge and John Ferejohn have called a “super-statute.” This Paper explicates the penetration into American public law of a new equality norm that redefined the meaning of sex discrimination in two critical ways in the face of stereotypes attached to real biological differences. First, setting aside their different views about the best way to secure workplace equality, previously divided legal feminists united to condemn as facial sex discrimination the “whipsaw effect” of pregnancy-based exclusions: On the one hand, women like Sherry O’Steen were forced into unpaid leave or fired based on a presumption of disability due to pregnancy, regardless of their capacity to work; on the other hand, women were unequally penalized for this absence by loss of the seniority, sick leave, and medical insurance that all other temporarily disabled workers received. This essential premise unified legal feminists in opposition to the Supreme Court insistence that “pregnancy . . . is not a gender-based discrimination at all.” Additionally, on the foundation of this feminist consensus that pregnancy discrimination is sex discrimination, an intensive normative debate took place within the legal feminist community and other organizations about the proper conceptual framework for targeting the discrimination. This second question in defining the modern equality norm was whether sex equality in the workplace should be delivered through special treatment for pregnant workers or through equal treatment for all workers experiencing temporary disabilities for any reason. While a six-man majority on the Supreme Court refused even to view this classification as sex discrimination at all, this Paper shows how liberal and labor feminists, unions, pro-choice and pro-life organizations united to repudiate the Supreme Court by generating a new normative baseline for modern equality jurisprudence that declares unlawful the whipsaw of pregnancy discrimination and that extinguishes facial exclusionary policies through an equal-treatment framework