Expanding the Core: Pregnancy Discrimination Law as It Approaches Full Term

The advocates behind the Pregnancy Discrimination Act (PDA) of 1978 had one very specific mission: to override the Supreme Court’s 1976 decision in General Electric v. Gilbert, in which it had curiously held that pregnancy discrimination had nothing to do with gender and was thus not a form of actionable sex discrimination under Title VII of the Civil Rights Act of 1964. The Court was not acting on a blank slate; it had used the same reasoning two years earlier to hold, in Geduldig v. Aiello, that pregnancy discrimination was not sex discrimination for equal protection purposes and therefore was not a classification that merited heightened judicial scrutiny. But the ruling in Gilbert was more than insult to injury. It was both surprising — ignoring a contrary interpretation by the EEOC, as well as rulings of several federal appellate courts that had agreed with the EEOC3 — and devastating — leaving in place the widespread employer policies that kept pregnant women out of some jobs altogether, and out of continuous employment at almost every job.The response to Gilbert was swift and effective. The Campaign to End Discrimination Against Pregnant Workers mobilized support for a new law that would amend Title VII, expressly prohibiting pregnancy discrimination. But the specific mission to obtain a legislative override of the Gilbert decision was animated by a more general goal — to ensure pregnant women were not left behind as the tide of employee benefits and accommodations was rising. The fear of being left behind was firmly rooted in reality — workers across the country were benefiting from a rising tide of benefits, while pregnancy was being routinely omitted from comprehensive benefit plans, and pregnant workers found themselves singled out for adverse treatment. Employers refused to hire pregnant women; forced pregnant employees to stop work at a certain point in pregnancy and prevented them from returning to work until a certain point after childbirth; and expressly excluded pregnancy from otherwise comprehensive insurance, disability and leave policies. All told, this meant that pregnant women had little hope of reasonable access to the workforce, and no hope of full integration into it. The PDA was immediately effective in eliminating most formal employer policies that singled out pregnancy for different (and typically worse) treatment. Congress gave pregnant women the right to be treated like everyone else — allowed to work if they were fully able to work and allowed to take leave if it was otherwise available.8 But these core rights, while important, even essential, are not enough to bring about true equality for women. Thus, as the PDA approaches forty, we see a sustained effort to expand on those core rights. In some cases, the “expansion” is simply a matter of pushing courts to give the PDA its due, reading in a way that furthers Congress’s intent rather than undermines it. In others, the expansion would go beyond the existing statutory rights, as necessary to bring about not only women’s access to the workplace, but their integration into it. After setting out the core of pregnancy discrimination law, this essay will develop four expansion themes: (1) from pregnancy alone to the whole reproductive process, including the “maternal wall”; (2) from overt to implicit bias; (3) from status to effects (and thus access to accommodation); and (4) from federal to state and local protections