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Abstract

The Pregnancy Discrimination Act (PDA) has been effective in making the most egregious and obvious forms of pregnancy discrimination illegal. Unfortunately, the PDA has also acted as a shield behind which employers can hide as they discriminate against their pregnant employees. The result is that the PDA permits discrimination based on the very sort of stereotyping that it was expected to eradicate. There are two dominant stereotypes of pregnant women. Both are inconsistent with the image of a good worker. One stereotype connects pregnant women with the home. In one form or another it says, “Pregnant women are/should be preoccupied with their families.” The second classic stereotype portrays pregnant women as disabled by the pregnancy--lazy, hysterical, or otherwise ill. It is important to recognize two things about these stereotypes that are so convincing to the courts. First, they represent only one side of the set of social stereotypes about pregnancy. People also say of pregnant women that they appear “radiant,” “energized,” or “more focused than ever before in their lives.” None of this shows up in the cases. Second, the stereotypes that do exist are the stereotypes that are usually connected to pregnant white women. Women of color, particularly Black women, are often thought of as strong and able to work throughout their pregnancies. Breeding was part of the job for slaves in the United States. The courts have had difficulty defining what aspects of “pregnancy, childbirth, or related medical conditions” are protected by the statute. By using a narrow, medicalized definition of pregnancy, they have excluded the time that women take to care for young children from the statute's protection. On the other end of the childbearing process, at least one court has refused to recognize the connection between infertility treatments and pregnancy. The result is that women who need to take time off from work for medical appointments or who want their employer-provided health care coverage to pay the bills for their infertility treatments may find themselves unprotected. These decisions allow narrow stereotypes of a work-family dichotomy to influence their definitions of pregnancy. These problems do not indicate new forms of discrimination against women in the workplace. More than twenty years ago, the United States Supreme Court decided a pair of cases relating to pregnancy discrimination. In them it held that failure to provide benefits for pregnancy as part of a state disability insurance program or an employer's disability plan was not discrimination on the basis of sex. The Court's finding that there was no sex discrimination because “[t]he program divides potential recipients into two groups--pregnant women and non-pregnant persons” amazed many people. The result was the enactment of the PDA to combat discrimination based on pregnancy. Unfortunately, the elimination of pregnancy discrimination has proven to be an elusive goal. In order to achieve this goal, we would need to be able to identify exactly what is meant by “pregnancy,” and when one is discriminated against on the basis of pregnancy. Because both of these issues require interpretation, we probably should not be surprised that stereotyped cultural images have affected our understanding of what constitutes pregnancy discrimination or that the courts have silently relied on these stereotypes. The result has been that instead of eradicating discrimination based on pregnancy, the PDA has often served to legitimate it. This Article focuses on three areas of pregnancy discrimination law to illuminate the mechanisms through which stereotypes of pregnant women have become part of the decisional process.

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