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Description
INTRODUCTION
Laurie Anne Freeman, a world-renowned expert on information technology and Japanese politics and a professor in the Political Science Department at the University of California, Santa Barbara, received extremely positive reviews from her department until she had two daughters and took leaves to be with them. (1) The reviews she received after returning from her leaves were increasingly critical of her research and productivity. (2) Despite family-friendly university policies, including rules that prohibited consideration of leave time when evaluating productivity, the department repeatedly evaluated her earlier than scheduled and compared her unfavorably with professors who had not taken leaves. (3) When Freeman came up for tenure, she had an impressive list of accomplishments including two prestigious fellowships, one book published and one under contract, and invitations to present her work at leading institutions including Harvard and Stanford. (4) Overwhelmingly negative assessments from her department, however, culminated in a unanimous recommendation to deny tenure. (5) But that was not the end of the road for Freeman. (6)
The Chancellor sent Freeman's case back to the Political Science Department for a new tenure review. (7) Again, the department at tacked her scholarly work. (8) This time, however, the Chancellor could not overlook the overwhelmingly positive assessment of experts in her field and her outstanding resume. (9) The Chancellor granted her tenure. (10) Freeman was not satisfied; she filed a charge of sex discrimination with the Equal Employment Opportunity Commission (the "EEOC"), alleging that her decisions to have children and to use the university's family-friendly policy were the real reasons for her tenure denial. (11) On September 6, 2005, Freeman was granted a rare EEOC cause determination. (12) Charlotte Fishman, Freeman's lawyer, said that she thought the cause determination was important because it drew attention to the sex-plus discrimination that women face in academia. (13) Sex-plus discrimination, however, is not limited to academia. Freeman's story highlights the discrimination that women face in the workplace, even at so-called family-friendly institutions.
Despite legislation designed to promote equality for women and mothers in the workplace, including Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pregnancy Discrimination Act (the "PDA"), and the Family and Medical Leave Act (the "FMLA"), discrimination persists. Role-reinforcing stereotypes (14) and the male-centric job model (15) continue to constrain women. The existing statutes are in large part narrowly applied by the courts and, as written, are insufficient to curtail the problem. The passage of the PDA acknowledged that pregnancy discrimination is a problem and began to roll back the paternalistic treatment of pregnant women, (16) but the PDA has not significantly alleviated the problem of pregnancy discrimination. It has been construed narrowly so that in many jurisdictions it covers only discrimination arising from pregnancy itself, as distinct from its side effects. (17) And the PDA does not grapple with many fundamental issues necessary to secure equality for women in the workplace and at home, such as how to structure the provision of childcare and breast-feeding. Women can attempt to pursue these claims as sex-plus claims under Title VII, but that route has proven to be generally unsuccessful. (18) Thus, many women are left unprotected from discrimination in the workplace based on their status as mothers, childcare providers, and producers of breast milk.
According to one possible indicator, the number of charges filed with the EEOC, pregnancy discrimination is on the rise. (19) With more than sixty-eight million women in the workforce, including 72.9 percent of women with children under age eighteen, (20) in recent years the EEOC has seen a thirty-five percent increase in the number of pregnancy discrimination charges filed when compared with the number of charges filed in 1992, (21) even though the United States has seen a nine percent reduction in its birth rate. (22) One reason for the rise in charges is that more women are in the workforce today than when the PDA was passed. In 2003, women comprised forty-seven percent of the total labor force, with a labor force participation rate of 59.5 percent (meaning that 59.5 percent of women at least sixteen years old were working or seeking employment). (23) Nearly three-quarters of mothers are in the workforce, including most women with very young children. (24) A second factor is that today more women work during their pregnancies and work further into their pregnancies. (25) In the decade before the PDA was passed, more than half of employed women quit their jobs when they learned they were pregnant. (26) But by the early 1990s the number of women who quit their jobs in anticipation of childbirth dropped to 26.9 percent. (27) Another factor that may have influenced the rise in charges is that a sluggish economy has pushed employers to lay off workers and stress productivity. (28) Accompanying the rise in pregnancy discrimination cases is a growing number of cases challenging discrimination against mothers and fathers based on their childcare responsibilities. (29) Such challenges are generally raised under Title VII. (30)
This Comment examines discrimination against mothers in the workplace, including discrimination against women on the basis of pregnancy, childcare, and breast-feeding, and proposes that new legislation is necessary in order to create equal opportunities for men and women, at work and at home. This new legislation, the Parental Discrimination Act, would specifically try to remedy the embedded assumptions and biases that lie beneath discrimination against pregnant women and mothers. Until the embedded assumptions and biases that form the basis for the current work-family structure are eradicated, women and men will not be able to enjoy equal opportunities both at work and at home. Part I of this Comment lays out the history of discrimination against pregnant women and mothers at work, and examines the legislation designed to promote equality between men and women in the workplace, focusing on Title VII (sex-plus cases and the PDA). It then looks at Title VII decisions to discern the state of the law and note the areas where pregnant women and mothers are not protected from discrimination. Part II contrasts the current status of the law with the proposals of various legal theorists and offers a critique of the effects of the current statutory framework. Part III suggests an accounting of the holes in the statutory framework and proposes new legislation to stiffen the protections given to pregnant women and mothers in the workplace.
I. THE SCOPE OF PROTECTION FOR PREGNANT WOMEN AND MOTHERS
A. A Brief History of Mothers & Pregnant Women in the Workplace
Throughout history women have enjoyed fewer legal rights and career opportunities than men; historically a woman's chief profession was to be a wife and mother. (31) In Bradwell v. Illinois (32) in 1873 and Muller v. Oregon (33) in 1908, the Supreme Court upheld state laws limiting the types of jobs women could perform and the number of hours they could work in part because there was a governmental interest in promoting women's maternal functions and because those maternal functions were incompatible with the workplace. (34) And even with time, the idea that a woman (and in particular a pregnant woman) belonged at home with her children did not fade away. In the 1950s some states created disability insurance programs to provide partial wage replacement to temporarily disabled workers, but these programs either excluded pregnancy or provided only restricted pregnancy benefits. (35) Before Congress passed the PDA, it was not uncommon for pregnant employees to be fired, demoted, forced to take an unpaid leave, or denied leave entirely. (36)
Today, however, nearly thirty years after the PDA was passed, pregnancy discrimination persists and discrimination against parents due to their childcare responsibilities is on the rise, as evidenced by the EEOC statistics cited in the Introduction. (37) Underneath this continued pattern of discrimination lie enduring stereotypes about pregnant women and mothers. (38) Research shows that women who become pregnant are viewed as less competent in the workplace. (39) Women who adopt more flexible schedules are also viewed as less competent. (40) And new "momism" dictates that in order to succeed at motherhood a mother must dedicate her entire life to taking care of her children, placing the bar for mothers so high that it cannot be reached. (41) These stereotypes and others can be seen in many pregnancy discrimination cases and even in the legislation designed to halt pregnancy discrimination. They will be explored more fully in Part II of this Comment.
B. The Emergence of Legislative Protections for Working Women: Title VII, the PDA, & the FMLA (42)
In 1964 Congress passed Title VII of the Civil Rights Act, providing protections against employment discrimination based on race, color, national origin, religion, and sex. (43) The inclusion of sex discrimination in the Act was a last minute decision and due in large part to a successful fight by women's rights advocates. (44) Following the Act's passage, women's rights advocates worked to ensure vigorous enforcement of it by the EEOC. (45) Women began to pursue Title VII claims, and their successes and disappointments paved the way for the development of sex discrimination jurisprudence to date. (46)
The two aspects of Title VII most relevant to an examination of discrimination claims based on pregnancy, motherhood, and childcare are sex-plus cases and cases filed under the PDA. Sex-plus claims are premised upon discrimination "against subclasses of women, distinguished not simply by gender but by an additional characteristic such as weight or marital or parental status." (47) In Phillips v. Martin Marietta Corp., the Supreme Court recognized the viability of sex-plus claims. (48) The Court reversed and remanded the Fifth Circuit's grant of summary judgment for the employer where the plaintiff alleged discrimination based on an employer's rule prohibiting mothers of pre-school aged children from holding certain positions. (49) Treating mothers with young children differently than fathers with young children, without the presence of a bona fide occupational qualification, constituted sex discrimination in violation of Title VII. (50)
Initially Title VII did not include the PDA. Congress enacted the PDA primarily in response to a series of Supreme Court rulings: Geduldig v. Aiello, (51) General Electric Co. v. Gilbert, (52) and Nashville Gas Co. v. Satty. (53,54) In Geduldig, an Equal Protection case, the Court held that California's decision not to insure the risk of disability from normal pregnancy did not constitute invidious discrimination in violation of the Equal Protection Clause. (55) Justice Stewart, writing for the majority, held
[t]he California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition--pregnancy--from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification. (56)
Justice Rehnquist quoted heavily from Geduldig when writing his majority opinion in Gilbert. (57)
In Gilbert, the Court held that the exclusion of pregnancy-related disabilities from General Electric's disability plan did not constitute sex discrimination in violation of Title VII. (58) Justices Brennan and Stevens wrote spirited dissents, rejecting the majority's contention that pregnancy discrimination is not discrimination based on sex. Justice Brennan identified the following as the objective of Title VII: "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered [sexually] stratified job environments to the disadvantage of [women]." (59) Justice Stevens noted that
[i]t is not accurate to describe the program as dividing "potential recipients into two groups-pregnant women and nonpregnant persons." Insurance programs, company policies, and employment contracts all deal with future risks rather than historic facts. The classification is between persons who face a risk of pregnancy and those who do not." (60) Justices Brennan and Stevens's dissents were later given credence when Congress enacted the PDA. In fact, many courts and legal thinkers consider the PDA a direct response to Gilbert. (61)
In Satty a woman who was required to take a leave of absence from her job during her pregnancy also lost all accumulated job seniority and did not receive pay while on leave. (62) The Court held that the employer's seniority policy violated Title VII, but remanded as to the pay policy to determine whether the plaintiff had adequately preserved the right to proceed on a theory that the sick pay policy was a pretext for discrimination. (63) In Satty, the Court relied heavily on their decision in Gilbert. (64) In this case, Justices Powell and Stevens wrote concurrences and Justices Brennan and Marshall joined Justice Powell's concurrence. (65) At the close of his concurrence Justice Stevens expressed his distaste for Gilbert and for the majority's reasoning. (66) He wrote that because his preference for deciding the case on "a simpler rationale.... is foreclosed by Gilbert, I concur in the Court's judgment on the understanding that as the law now stands, although some discrimination against pregnancy--as compared with other physical disabilities--is permissible, discrimination against pregnant or formerly pregnant employees is not." (67) Justice Stevens would not have to wait long for a change in the law.
In 1978, Title VII of the Civil Rights Act of 1964 was amended to include the PDA. The PDA amends section 701, Definitions, by adding subsection (k), which provides:
The terms "because of sex" or "on the basis of sex" include, but are not limited to, because of or on the basis of pregnancy, child-birth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this subchapter shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. (68)
The PDA only applies to employers with fifteen or more employees. (69)
When Congress amended Title VII in 1978, Congress "unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision." (70) The House Report stated that the dissenters in Gilbert had correctly interpreted Title VII, (71) and the Senate Report quoted the dissenting opinions while noting that they correctly expressed "the principle and meaning of Title VII." (72) But the Congressional intent behind the PDA went beyond just reversing the Supreme Court's holding in Gilbert. (73) In drafting the PDA, Congress intended to enforce the goal of prohibiting sex discrimination by re-defining sex discrimination to specifically include pregnancy discrimination. (74) A 2001 Washington federal district court decision explained:
[I]n enacting the PDA, Congress embraced the dissent's broader interpretation of Title VII which not only recognized that there are sex-based differences between men and women employees, but also required employers to provide women-only benefits or otherwise incur additional expenses on behalf of women in order to treat the sexes the same. (75)
This broad reading of the PDA, however, is not the norm. (76) In addition, the text of the PDA does not include childcare and though some argue that it could be construed to include breastfeeding, courts have unanimously held that it does not. (77)
In a 2001 article, Julie Manning Magid argued that courts have applied the PDA too narrowly. Magid discussed the structure of the PDA--two clauses joined by "and"; each clause with its own grammatically independent meaning. (78)
Importantly, both clauses define the PDA as referring to pregnancy, childbirth, or related medical conditions. Joining these definitional provisions with the conjunction "or" specifically highlights that the amendment is concerned not only with aspects of pregnancy related to medical manifestations, but pregnancy in all of its manifestations. In addition, only the more specific second clause involving disability compares the pregnant person to those similarly affected. (79)
Magid noted that although many courts have focused exclusively on the second clause of the PDA, (80) the first clause shows "the gist of congressional intention in enacting the PDA and the second clause was merely illustrative and meant to overrule the holding in Gilbert by prescribing the specific remedy for the disabilities program in that case." (81) The Supreme Court has supported Magid's reading of the PDA and held that the first clause of the PDA is not limited by the language in the second clause. (82) Thus, many courts' narrow interpretations are questionable.
The FMLA, enacted fifteen years after the PDA, was the first federal statute to address parental leave. (83) Congress failed to pass more stringent family leave acts, but passed this watered down version, and it was hailed as a great success for women and families. (84) The FMLA provides that employers with more than fifty employees in a seventy-five mile radius must offer eligible employees up to twelve weeks of unpaid leave after childbirth or adoption, to care for an ill child, spouse or parent, or in the case of the employee's own serious illness. (85) Covered employers must continue the employee's health coverage during the leave, (86) and, upon the employee's return to work, must reinstate the employee to the same or similar position. (87) Employers may exempt their key employees from coverage--their highest-paid ten percent whose leave would cause the company harm (88)--and any employee who has not worked at least 1,250 hours for that employer in the previous twelve months. (89) The FMLA emphasizes the importance of both parents' involvement in early childrearing and the importance of accommodations and thus attempts to keep parents from having to choose between job security and childrearing. (90)
But the FMLA has not achieved all of the goals outlined in its preamble. (91) For example, the FMLA does not mandate paid family leave, and because taking twelve weeks of unpaid leave may not be an economically feasible option, many parents are unable to stay home and "participate in early childrearing." (92) In addition, the FMLA did not change the status quo for many employees. "IT]he FMLA was primarily a symbolic act, which afforded no significant assistance to working women, or men, and has perhaps retarded progress on the family leave front more than it has plausibly helped.... [T]he FMLA essentially replicated what the market was already providing--unpaid leave for large employers." (93) Furthermore, the FMLA does not cover a vast percentage of American employees. (94)
Ten years after the FMLA was passed, though most employers have implemented it, it has had little effect on the stereotypes and biases that women face in the workplace. (95) Because women are still more likely than men to take childcare leave, employers continue to see women as more costly and less desirable. (96) The legislative history of the FMLA indicates it was passed to complement existing laws (such as Title VII and the PDA) and to accommodate mothers. (97) And while it has forced some employers to accommodate female employees, the FMLA has not changed the stereotypes those employees face when they become pregnant or take leave to stay home with a sick child. (98) In fact, some scholars argue that the FMLA is filled with underlying stereotypes. (99)
Because this Comment focuses on discrimination, particularly the subtle forms of discrimination--embedded assumptions, stereotypes, and biases--faced by working pregnant women and mothers, the cases discussed center on Title VII, sex-plus cases, and the PDA. There will be a more extensive discussion of the FMLA in Part II.
C. The Cases
1. Breast-Feeding
Discrimination because of breast-feeding affects the least number of women of the three bases for discrimination discussed in this Comment, but it is an important issue to new mothers who want to return to work and provide the health and psychological benefits of breast-feeding to their... |
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