Reconstructing Pregnancy

Congress passed the Pregnancy Discrimination Act in 1978 to amend Title VII’s prohibition against sex discrimination to include discrimination on the basis of pregnancy, childbirth, and related medical conditions. More than thirty-five years after the passage of the Pregnancy Discrimination Act, courts have failed to fulfill its promise. This failure lies, in part, from a tendency to reduce pregnancy, with all of its social and cultural meaning, to its “purely” biological elements. For the purposes of the Pregnancy Discrimination Act, courts ground the legal conception of pregnancy in a form of biomedical essentialism that treats pregnancy as a universal given. Pregnancy discrimination, under the Act, has been reduced to discrimination that occurs during gestation or because of gestation related physiological conditions. This reductive definition of pregnancy is not only profoundly under-inclusive and unresponsive to the needs of workers but also contradictory and incoherent. In response, this article proposes that pregnancy should be reconstructed in a way that rejects reductive forms of biomedical essentialism and embraces other possibilities. Pregnancy should not, and indeed cannot, be understood separate and apart from the social, cultural, and relational interactions that give it meaning. Pregnancy is, in fact, pregnant with social and cultural meaning. Reconstructing pregnancy in this way has the potential to provide much needed clarity to the Pregnancy Discrimination Act and to ensure that pregnancy discrimination is comprehensively prohibited - whether it occurs before, during, or after conception