On October 31, 1978, President Jimmy Carter signed the Pregnancy Discrimination Act. An amendment to Title VII of the 1964 Civil Rights Act, the new law stated the pregnant workers “shall be treated the same for all employment-related purposes as other person not so affected, but similar in their ability or inability to work.” This law was the culmination of a long movement to give female workers equal rights on the job, as opposed to special protections that could ultimately lead to discrimination against them.
Earlier women’s activism in the workforce tended to focus on protecting women on the job, often granting them special rights that would protect them as mothers. The Consumers’ Bureau led by Florence Kelley was central to this strategy, which played a critical role in the Muller v. Oregon case that carved out an exemption from the predominant idea of employees entering into a voluntary contract with employers and thus deserved no protections. Because women were mothers, the Court decided that reducing their work hours made sense. Battles between women’s labor activists and Alice Paul’s branch of the women’s movement continued for the next 50 years, as the National Women’s Party focused exclusively on the Equal Rights Amendment and worked with employers to defeat labor legislation. By the 1970s, these debates had become more than stale. The women’s movement united around the ERA and women were demanding true equality on the job. The 1970s saw serious activism on women’s reproduction and work for the first time. The 1975 decision by Idaho’s Bunker Hill Mining Company to demand the sterilization of women working in certain jobs, wrapping itself up in a fetal rights argument to protect itself against unsafe working conditions demonstrated the need for broader equal protection of women on the job.
Moreover, courts were finding against pregnant women’s rights. In 1976, the Supreme Court ruled in General Electric v. Gilbert. GE had an insurance plan that paid part of a worker’s wages for 3 weeks for any disability except disabilities caused by pregnancy. GE employee Martha Gilbert took the company to court. GE’s policy violated the 1972 EEOC policy covering pregnancy. But they feared the men would start wanting time off when their partners had children and that doctors would allow “malingering” women to stay at home. Gilbert won her case at each level until she reached the Supreme Court when William Rehnquist wrote an opinion for the majority that pregnancy discrimination didn’t exist because pregnancy is what made women different than men. But the decision also opened the door for Congress to clarify the issue. Feminist lawyers agreed. Ruth Bader Ginsburg wrote that if Congress was “genuinely committed to eradicating sex-based discrimination,” it could provide “firm legislative direction assuring job security, health insurance coverage, and income maintenance for childbearing women.”
Congress has never gone as far as Ginsburg wished of course. But in response to GE and other cases, it did pass the Pregnancy Discrimination Act by a vote of 376-43 in the House and 75-11 in the Senate. President Carter signed it soon after. As with most labor laws, it had an unfortunate exception to any employer with less than 15 employees. Everyone else could not treat pregnancy any different than other occupational disability. Treating pregnant workers differently became sex discrimination. This law specifically reversed General Electric v. Gilbert. But the PDA also had some pretty severe flaws, problems that of course made it easier to pass. It did not provide any new benefits for women workers. It depended completely on whatever programs employers provided for other workers. If an employer had no health benefits for workers, pregnant workers would receive no benefits. If an employer did have health benefits, they would now have to include pregnancy. Five states went further than the federal law. California mandated that employers had to grant pregnant workers 4 months of unpaid leave with job security, effectively a precursor of the Family and Medical Leave Act of 1993.
Still, the new law led to a whole new set of discrimination cases. When Newport News Shipbuilding and Dry Dock did not improve its health plan to include full coverage for childbirth to the female wives of male workers (as opposed to its female workers), this led to a suit. In Newport News Shipbuilding and Dry Dock v. EEOC, the Court ruled in 1983 that the company must provide the benefit to the wives of workers. Even the California extension of the right led to a suit, when a bank employee filed a case in 1982 when, after a 3-month leave after a difficult pregnancy, was fired because the employer said the PDA superseded the state law. The bank sued to repeal the state law. This once again split feminists between labor feminists and the National Organization of Women. NOW urged that the federal law which eliminated gender difference be upheld but also argued that Title VII required the extension of benefits as opposed to their removal, as argued by the bank. The Coalition for Reproductive Equality in the Workplace, led by Betty Friedan, worked with the International Ladies Garment Workers Union (ILGWU), many other unions, and Planned Parenthood in support of the California law, noting that the statue did not protect women like laws of the past, but rather remedied the discriminatory impact of employer health policies. In California Federal Savings and Loan Association v. Guerra in 1987, the Supreme Court found in favor of the California law by a 6-3 margin, with Scalia joining the majority strictly out of his belief that federal laws should not supersede state laws. Thurgood Marshall wrote the decision that noted that Congress and California had similar goals and that the employer was free to extend benefits to other disable employees. It might be special treatment, but it paved the path to equal treatment. Byron White, Lewis Powell, and William Rehnquist dissented, as one might expect.
I borrowed from Nancy Woloch, A Class by Herself: Protective Laws from Women Workers, 1890s-1990s in the writing of this post.
This is the 197th post in this series. Previous posts are archived here.