Take Care is pleased to host a symposium on Reproductive Rights and Justice Stories—an important new book edited by Professors Melissa Murray, Katherine Shaw, and Reva B. Siegel. Contributors will relate themes, stories, and case histories in the book to recent developments in American life and law. 

When lawyers hear the phrase “reproductive rights,” what comes to mind is Roe v. Wade, and perhaps debates over the Supreme Court’s role in settling hot-button political controversies. Reproductive Rights and Justice Stories—an important new volume—demonstrates there is much more to the field. Reproductive justice is not just about abortion; it’s also about contraception, pregnancy, and parenthood. The book’s stories are not just about the Supreme Court; they are also about legislatures, social movements, political parties, institutions of civil society, families, and individuals. This approach allows readers to consider connections among important issues of reproductive justice that go beyond familiar controversies.

Four of the book’s twelve insightful chapters pertain to discrimination against pregnant workers—a timely and pressing issue. Despite legal efforts to eliminate it, pregnancy discrimination remains “rampant” and research has documented a persistent “pregnancy penalty” that keeps pregnant workers out of the labor market.

The book’s chapters highlight three main analogies or comparisons that advocates have used to advance pregnant workers’ rights through the courts: (1) between the fundamental right to end a pregnancy and the right to continue one, (2) between pregnancy-related limitations and other temporary disabilities that are accommodated at work, and (3) between pregnant mothers and expectant fathers. Each of these lines of argument has had some utility for legal advocates, but each one also has limitations, demonstrating that meaningful progress for pregnant workers now requires change outside of the courts.

(1)    A Reproductive Liberty?

One potential line of argument is that the choice to remain pregnant is about the fundamental right to reproductive liberty, akin to the choice to terminate a pregnancy. There’s an example of this argument in Neil Siegel’s excellent chapter on Struck v. Secretary of Defense, a 1972 case challenging an Air Force policy that required that pregnant servicemembers be discharged unless they agreed to an abortion. When Captain Susan Struck became pregnant in 1970, she decided to carry her pregnancy to term and place the baby for adoption. Due to her commitments as a Roman Catholic, abortion was out of the question. Although Struck was able to work up until the birth and had two months of accrued leave time that she could use for her recovery, the Air Force discharged her.

At the time of the case, Roe had not yet been decided. Justice Ruth Bader Ginsburg, then a lawyer, had hoped Struck“would be the first reproductive choice case.” The facts of the case inverted the typical association of reproductive choice with abortion, creating a unique opportunity for consensus. But before the case could be argued in the Supreme Court, the Air Force modernized its pregnancy policy and reinstated Captain Struck.

While the argument based on reproductive liberty had some traction in a later Supreme Court case involving a public sector worker fired for being pregnant, it has important limits. For one thing, the Constitution does not generally constrain employers in the private sector. For another, courts often construe fundamental rights as rights against state interference, not requirements of state support. Captain Struck was able to continue to work during her pregnancy. But what if she had needed additional time off? Courts may hold that the fundamental right to remain pregnant does not entail the right to any sort of accommodation on the job.

Thus, Siegel points out that Justice Ginsburg’s brief in Struck did not rely simply on the argument that there is a fundamental right to remain pregnant. Rather, it connected that right with principles of sex equality. At the time of Struck, the Air Force did not discharge men with temporary disabilities like broken legs. Nor did it discharge expectant fathers. These comparisons demonstrate that the Air Force’s policy was based in sex stereotypes, specifically “the discredited notion that a woman who becomes pregnant is not fit for duty, but should be confined at home to await childbirth and thereafter devote herself to child care.”

(2)  A Temporary Disability?

In her illuminating chapter on Geduldig v. Aiello, Deborah Dinner discusses the limits of the comparison between pregnancy and temporary disabilities. Geduldig was a 1974 equal protection challenge to a temporary disability insurance program run by the state of California that singled out pregnancy for exclusion. In a bizarre turn of formal logic, the Supreme Court held that the law’s distinction between pregnant and nonpregnant workers was not discrimination on the basis of sex, because both men and women fall into the group of nonpregnant workers. Furthermore, the state had a rational basis for excluding pregnancy from its insurance program: saving money.

But covering any number of conditions is expensive, so why single out pregnancy for exclusion? As Dinner explains, the case rested on “the family-wage ideal: the notion that the normative family was comprised of a male breadwinner, a female caregiver, and children.” Government and employer-sponsored workplace benefits programs of the twentieth century were designed to support male breadwinners who found themselves unable to work. Those programs assumed that pregnant women had left the workforce voluntarily and would be supported by their husbands. This assumption made the exclusion of the costs of pregnancy from temporary disability programs “appear natural.”

In a rebuke of this reasoning, Congress enacted the Pregnancy Discrimination Act (PDA) in 1978. The law forbids employment discrimination on the basis of pregnancy. It requires that employers accommodate pregnancy-related medical conditions to the same extent that they accommodate other conditions that similarly limit a worker’s ability to do their job. But the law is limited in that, if no workers receive any accommodations, then neither do pregnant ones. And so an employer who fires a pregnant worker for being late for work due to morning sickness would not be in violation of the PDA unless that employer allows workers with medical conditions unrelated to pregnancy to arrive late.

This so-called “comparator” requirement has been a major stumbling block for pregnant workers, as Katherine Shaw explains in her chapter on Young v. United Parcel Service: a 2015 case brought by Peggy Young, a UPS driver who needed a temporary accommodation because she couldn’t lift heavy packages during her pregnancy. The dilemma in that case was that UPS accommodated some, but not all, nonpregnant workers with similar temporary disabilities. The Supreme Court resolved the case in Young’s favor, using a convoluted burden-shifting framework that Shaw helpfully distills in her chapter. Unfortunately, Young still requires that pregnant workers find comparators.

To provide more robust protection to pregnant workers, 23 states and 5 cities have enacted laws called Pregnant Workers Fairness Acts that require reasonable accommodations for pregnant workers, without the need to identify any comparators. A federal version of this law has been introduced in every session of Congress since 2012. The law is modeled on the federal Americans with Disabilities Act (ADA), which requires reasonable accommodation of certain disabilities.

Yet scholars have been disappointed that the ADA has failed to improve labor market outcomes for disabled workers. One reason might be that the ADA puts the decision as to whether employees are disabled and entitled to accommodations in the hands of employers, who may have economic incentives to refuse. If a worker disagrees, their only recourse is to bring a lawsuit, which is costly, difficult, and can result in retaliation. Another reason might be that employers avoid hiring employees with visible disabilities out of concern that those workers will need costly accommodations. Both of these arguments suggest that extending a reasonable accommodation requirement to pregnant workers may not do much to improve their treatment in the labor market.

(3)   Sex Equality?

A third type of analogy would compare pregnant women with expectant fathers. Men have long been able to combine career and family; why should women have to choose one or the other? This argument might point the finger at workplace policies that assume the ideal worker never gets pregnant—for example, inflexible scheduling, inadequate leave policies, and overwork.

One avenue for challenging such workplace practices is disparate impact law under the PDA: the argument that neutral workplace rules disproportionately harm pregnant workers and are not justified by a business necessity. Unfortunately, as Dinner points out, federal courts are hostile to these theories.

Another avenue is legislation. In 1993, Congress enacted the Family and Medical Leave Act (FMLA), which provides twelve weeks of unpaid leave to certain workers for the birth of a child, for a worker’s own illness, or to care for a sick family member. Samuel Bagenstos’s chapter tells the story of Nevada Department of Human Resources v. Hibbs, a 2003 case about whether Congress had the power to enact the FMLA to enforce the Fourteenth Amendment’s guarantee of equal protection. The Court concluded it did, because the FMLA was enacted in response to “mutually reinforcing stereotypes” about women’s domestic roles and men’s lack thereof. By affording family leave for both men and women, Congress sought to avoid giving incentives to employers to “evade leave obligations simply by hiring men.”

Bagenstos describes the FMLA as an example of “feminist universalism—the notion that sex equality is best served by rules and policies that reject differentiation between women and men,” in other words, gender-neutral rules. A recent article in the Columbia Law Review argues that the FMLA isn’t universal when it comes to pregnancy. For example, the Act provides special protection for “pregnant women” to do things like learn how to care for a newborn. This is problematic not only because prospective fathers also need to learn how to care for newborns, but also because some pregnant people aren’t women—they are transgender men and nonbinary individuals. But it is true that the FMLA is gender-neutral with respect to parenting after a child is born.

Bagenstos’s chapter argues that the FMLA demonstrates the limits of feminist universalism. He points out that the Act has not done much to increase the amount of parental leave taken by men, by contrast to European policies that create incentives for both parents to take time off. I doubt that this problem inheres in the FMLA’s gender-neutral nature. The leave policies of a number of Nordic countries are gender neutral—their incentives apply to same-sex couples the same way they do to straight ones. The reason European leave programs are more effective may instead be that they offer paid leave, unlike the FMLA.

But Bagenstos makes another persuasive argument: that feminist universalism may have forestalled progress on paid family leave. One of the reasons for political resistance to paid leave legislation is the perception that, because the FMLA includes leaves for a worker’s own illnesses, providing paid leave would be too costly for businesses. Perhaps paid leave just for the birth of a child would have been an easier sell.

Progress for Pregnant Workers?

The book’s chapters on pregnant workers point to roadblocks that the reproductive liberty, temporary disability, and sex equality arguments have encountered in the courts. Although jurists could find doctrinal resources for overcoming many of these roadblocks, the federal courts grow more inhospitable to progressive arguments with every new judicial confirmation.

Progress has been made through legislative reform at the state level. For example, California, New Jersey, Rhode Island, and New York now offer gender-neutral paid leave programs financed through employee or employer payroll contributions and administered by state governments. Based on her study of these programs, economist Jennifer Bennett Shinall concludes that the key to reducing the pregnancy penalty and getting men to take leave is to offer high rates of wage replacement.

A federal law proposed by Senator Kirsten Gillibrand and Representative Rosa DeLauro—the Family And Medical Insurance Leave (FAMILY) Act—would do just that. While business interests have opposed paid leave in the past, their opposition might be defused by the fact that states like California have enacted paid leave without major disruption to business. Unfortunately, it’s not clear the FAMILY Act will be able to overcome Republican opposition to tax increases generally. At the national level, the best way to make progress for pregnant workers may be to change the composition of Congress in 2020.

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