Pregnancy, Disability, and Maternity Leaves

Pregnancy, Disability, and Maternity Leaves The first time the Supreme Court spoke about motherhood and gainful employment, it suggested a certain incompatibility between the two roles. Muller v. Oregon (1908) emphasized woman's “maternal functions” while upholding the state's power to limit her working hours “for her protection” (pp. 422–423). Then, only one‐fifth of American women worked outside the home. Now, in the 1990s, more than half the mothers of preschool‐age children are employed. But society, and the courts, still have difficulty reconciling these tensions.

Women still bear children, of course. But social sex roles changed dramatically in the twentieth century. When the change began, the old‐fashioned family was the norm: husbands were breadwinners, wives homemakers. As the century ended men and women shared economic responsibility. But women's increased duties outside the home have not been matched by increases in men's responsibilities within it. In the early twenty‐first century, most men have one job—but most women have two.

Traditionally, government and business have not been eager to help women manage their double burden. Employers once fired pregnant workers or imposed mandatory maternity leaves—until Cleveland Board of Education v. LaFleur (1974) held that such leaves were arbitrary policies serving no rational purpose. But mandatory leaves are not the only policies that make work and motherhood a difficult mix. Despite LaFleur, the Court ruled in *Geduldig v. Aiello (1974) and General Electric v. Gilbert (1976), respectively, that employee health insurance plans that excluded coverage for pregnancy violated neither the Constitution nor the civil rights laws. The justices insisted that these policies did not discriminate against women but merely distinguished between pregnant and nonpregnant persons; since pregnancy was a “voluntary” condition, it was not like most disabilities.

Congress was several steps ahead of the Court in this area. The Pregnancy Discrimination Act (PDA) of 1978 rejected the reasoning of Geduldig and Gilbert. Employers must now treat pregnancy like any other physical condition. The PDA has not settled all the difficulties involved. While pregnancy may reasonably be viewed as one of many conditions that temporarily disable workers, childbirth has a crucial dimension that absolutely distinguishes it from other conditions: it produces a baby. The mother experiences physical changes after childbirth that foster emotional bonding with the baby. She alone can breastfeed the baby, and she is the primary provider of the continuous care that a newborn infant requires. At this point, families may be best served by policies that do not treat childbirth like any other condition. Childbirth is a sociopsychological as well as a medical phenomenon.

Some states have been ahead of the federal government in this area. California's Fair Employment and Housing Act, also passed in 1978, requires employers to grant up to four months' unpaid “pregnancy disability leave.” The California Federal Savings and Loan Association (Cal Fed) refused to comply, maintaining that the law was preempted by Title VII of the Civil Rights Act of 1964. California Federal Savings and Loan Association v. Guerra (1987), which tested the California law, was a case that generated considerable dispute even before it was decided. Many feminists argued that this kind of single‐sex policy would reinforce women's disproportionate responsibility for child care. But not all feminists agree; some see this burden not only as a social reality but as both natural and desirable. Other critics feared that laws like California's would deter employers from hiring women of childbearing age, in violation of Title VII.

These complex issues were only superficially addressed in the Guerra case. Justice Thurgood Marshall, for a 6‐to‐3 majority, found the state law compatible with the purpose of the PDA “to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life” (p. 289). Although sex‐neutral parental leaves might be better policy, the Guerra result appears sensible. To the extent that pregnancy and childbirth are conditions that temporarily disable workers, they must be treated like all such conditions. To the extent childbirth creates unique social relations and responsibilities, it may be treated differently from physical conditions which do not. If the Court cannot force society to accommodate women's two roles, at least it has not frustrated these efforts.

See also Employment Discrimination; Gender.

Bibliography

Sylvia Ann Hewlett , A Lesser Life: The Myth of Women's Liberation in America (1986).

Judith A. Baer