Elizabeth Warren reported that her contract as a teacher was not renewed when she was visibly pregnant at the end of her first year. The crowd went wild—not with sympathy for her plight, but with accusatory disbelief. Why would she get fired just for being pregnant? Because that’s what happened to pregnant women until 1978, when pregnancy discrimination became unlawful. Warren’s pregnancy was in 1971. But the public’s reaction to Warren’s report about her experience suggests that this country’s long history of legal and widespread pregnancy discrimination may need to be excavated. After all, if we don’t believe that women were discriminated against in an era in which such behavior was overt and commonplace, what is the likelihood that we will believe women who continue to experience discrimination today? We have come a long way, but there is still much work to be done.
The Era of Exclusion
Until the 1960s, there was no federal law prohibiting discrimination against women in any context. The Equal Protection Clause in the Fourteenth Amendment of the U.S. Constitution had never been applied to invalidate a law that discriminated on the basis of sex. The federal law requiring equal access to public accommodations like hotels and restaurants prohibited only race discrimination, not sex discrimination. And Congress had never passed a statute banning sex discrimination (or pregnancy discrimination) at work or in education. Women had the constitutional right to vote by virtue of the Nineteenth Amendment, but courts had decided early on that the right to vote was not a broad-based guarantee of equality, nor a gateway to other rights. Despite the lack of formal equality rights, women did attend colleges and universities, participate in the labor force, and partake in most aspects of public life. But they did so at the whim of the public and private institutions that allowed them to participate and had no recourse when they were excluded or hindered.
Pregnant women were subject to a particular set of whims. The idea of pregnant women doing paid work triggered a few common reactions, ranging from a paternalistic desire to protect them from the perils and demands of paid labor, to stereotypes about their physical capacity or willingness to service the “ideal worker” norm, to concerns about “lewdness” because pregnancy resulted from sex. These reasons, though varied, all led to the same outcome: the partial or full exclusion of pregnant women from the workforce. Actual and potential pregnancy was the justification for innumerable laws and policies that disadvantaged working women.
In the first half of the twentieth century, many states imposed special limits on working women, most designed to protect and preserve women’s reproductive function. The Supreme Court upheld such a law in Muller v. Oregon (1908), permitting the state of Oregon to restrict the number of hours women, but not men, could work per day in a factory or laundry, notwithstanding having struck down a New York law that restricted the hours of all bakery employees under the now-defunct theory of economic substantive due process. Workers in general had a constitutional right to negotiate the terms of the labor, but women could be subject to special “protection” required by “her physical structure and a proper discharge of her maternal functions.” A brief filed in that case recited four ways in which a long work day was incompatible with womanhood: “(a) the physical organization of women, (b) her maternal functions, (c) the rearing and education of the children, (d) the maintenance of the home–are all so important and so far reaching that the need for such reduction need hardly be discussed.”
The ruling in Muller had far-reaching and long-lasting effects. It left in place a large number of state laws that restricted women’s work based on their “special needs,” and spurred the adoption of new ones. These laws cemented the normalcy of different rules for men and women at work, deeply entrenching gender roles that we have still not overcome.
Fast forward to the 1960s, when the legal landscape for working women began to change. Congress passed the Equal Pay Act of 1963, which guaranteed equal pay for equal work, followed the next year by Title VII of the Civil Rights Act of 1964, which banned employment discrimination on the basis of a number of traits, including sex. And in 1971, the Supreme Court ruled for the first time that sex-based classifications in state laws must be subjected to heightened judicial scrutiny—and were thus likely to be held unconstitutional. Women now had explicit equality rights they could use to challenge their exclusion from schools, jobs, and jury boxes. Women’s workforce participation skyrocketed in the 1970s, catalyzed by the second wave women’s movement and changing mores about the family and marriage, and facilitated by the new legal protections. But even with the influx of women into the workforce, it remained common for employers to single out pregnant women for adverse rules that affected hiring criteria, conditions of employment, and benefits. This was a period in which employees were advocating for and obtaining better benefits from employers, but the rising tide left behind pregnant women.
During this period, it was very common for employers to refuse to hire pregnant women and to fire employed women once they became pregnant. It was also common to exclude women from certain jobs or workplaces altogether, ostensibly because of the potential risk to her reproductive function or to a fetus if she were to become pregnant. These rules were often embodied in formal policies. School districts across the country had rules that required pregnant teachers to leave by the fourth month of pregnancy—usually without paid leave or a guarantee of resuming employment—and prevented them from returning until three months after childbirth. (This was an improvement from an earlier generation in which women had to leave their jobs when they got married.) State laws sometimes incorporated these same “stop work” rules into their systems of unemployment compensation and disability, which meant that women could not obtain any salary replacement for those periods before and after childbirth because they were deemed, irrebuttably, incapable of work due to their condition.
Pregnant women began to fight for workplace rights, but the road was long and progress slow. In 1972, the Equal Employment Opportunity Commission (EEOC) issued its first pregnancy discrimination guidelines stating that Title VII’s ban on sex discrimination extended to pregnancy discrimination. But the Supreme Court would take a different (and binding) view. Despite the tangible gains for working women, and the EEOC’s declaration that pregnancy discrimination was unlawful, the Supreme Court twice ruled in the 1970s that pregnancy discrimination is not a form of sex discrimination. In Geduldig v. Aiello, the Supreme Court upheld California’s statewide disability insurance program for private employees, which covered most disabilities but specifically excluded those resulting from dipsomania, drug addiction, sexual psychopathy, and normal pregnancy. This holding came despite two rulings (as of then) establishing heightened scrutiny for sex-based classifications under the Equal Protection Clause. The Supreme Court explained, absurdly, that the insurance program “divides potential recipients into two groups—pregnant women and nonpregnant persons. . . . There is no risk from which men are protected and women are not.” There was no connection, the majority claimed, between the “excluded disability and gender.”
Two years after Geduldig, the Supreme Court applied this same reasoning to Title VII in General Electric Co. v. Gilbert. The Court upheld the exclusion of pregnancy from a private employer’s disability plan, similar to the one upheld in Geduldig, against a Title VII challenge. This was a much more consequential ruling in that it applied to most employers, public and private, and gave them license to continue discriminating with impunity. This decision was remarkable in that it rejected the EEOC guidelines (which are normally considered persuasive as coming from the agency in charge of implementing Title VII) as well as the rulings of seven federal courts of appeals. Justice Brennan, in dissent, observed: “Surely it offends common sense to suggest … that a classification revolving around pregnancy is not, at the minimum, strongly ‘sex related.”’ But the majority persisted in its nonsensical interpretation of Title VII.
The Era of Access
At the height of the second wave women’s rights movement, pregnant women were in dire straits. There was only one shining light during the first half of the 1970s. During the same year it rejected an equal protection-based right against pregnancy discrimination in Geduldig, the Supreme Court invalidated aspects of public school mandatory leave policies for pregnant teachers. At issue in Cleveland Board of Education v. LaFleur were policies from two school districts forcing pregnant teachers to leave work early in their pregnancies. One school district also forced teachers to wait three months after childbirth before returning to work, regardless of their individual condition or capacity. The Court invalidated both rules under the Due Process Clause, which is the home for privacy-based rights related to reproduction—contraception, abortion, and childrearing. The Court’s concern was not that pregnant women were being singled out for adverse treatment, but that they were presumed to be incapable of work based on their condition without regard for their individual capacity. The Court thought it arbitrary that a pregnant woman who was not disabled by pregnancy would have to leave her job nonetheless just because other pregnant women might have been disabled at the same point in pregnancy. The oral arguments in that case revealed some of the bizarre notions that animated these rules. The lawyer for one of the districts explained that pregnant teachers had to be removed from the classroom because their swollen bellies would be confusing for the students, who might think their teacher had “swallowed a watermelon.” During the same term, the Court invalidated Utah’s unemployment compensation rules that prohibited a pregnant woman from collecting benefits because of presumed incapacity. These rulings ushered in an anti-stereotyping principle that meant it was fine to fire pregnant women who actually had some level of incapacity due to pregnancy or childbirth, but unacceptable to presume their incapacity simply from the fact of their condition.
The rulings in LaFleur and Turner were important, but had limited reach because only the government—and thus only public sector employers—are bound by the Fourteenth Amendment. The Court’s ruling in Gilbert left private employers completely protected against charges of pregnancy discrimination, and they continued to hire, fire, and allocate benefits in ways that severely disadvantaged pregnant women. And in the 1970s, this was affecting a significant number of women, as they had joined the workforce in droves. According to data analyzed by historian Alice Kessler-Harris, more than half of American women worked in 1975, 70 percent full-time. The workforce patterns of pregnant women also began to change in the 1960s, with women working, when permitted, longer into pregnancy and returning sooner after childbirth. More of them continued to work after having a child than in previous decades.
The ruling in Gilbert inspired outrage and catalyzed the Campaign to End Discrimination Against Pregnant Workers, a coalition that proposed and pushed for a new law banning pregnancy discrimination. In just two years, Gilbert was overruled by the Pregnancy Discrimination Act (PDA) of 1978. The PDA was the beginning of a new era for women: a promise of equal access to the workforce despite women’s unique role in the reproductive process. The PDA provided two main protections. First, it defined sex discrimination under Title VII to include discrimination on the basis of “pregnancy, childbirth, or related medical conditions,” which had the effect of overruling the Supreme Court’s interpretation of Title VII in Gilbert and making employers liable for decisions based on pregnancy. Second, it required employers to treat 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.” This stopped employers from exempting women from otherwise available benefit programs, insurance, and accommodations. And a ruling a decade later held that fetal protection policies—the ones that kept women out of certain jobs or workplaces because of potential fetal risk—also violate the PDA.
Access, without Full Integration
Between the ruling in LaFleur and Congress’s passage of the PDA, the business-as-usual policies regarding pregnant women became unlawful in many workplaces. The most significant impact of the PDA, at least initially, was to invalidate widespread formal policies that told pregnant women when they could and could not work, and in which sorts of jobs. The PDA forced employers to shift to a more individualized model under which pregnant women could not be fired, not hired, or otherwise disadvantaged just for being pregnant. Decisions about employment now had to be made based on capacity to work, rather than pregnancy status. The second and important impact of the PDA was to force changes to standard employer benefit and leave policies, many of which excluded pregnancy altogether. Under the second clause of the Act, employers must treat pregnant employees at least as well as they treat other temporarily disabled workers. Employers thus must, for example, provide paid or unpaid leave to pregnant women who medically require it if they would do so for something who needed it because of some other temporary disability. The major limitation of the PDA is that it does not provide an absolute right of accommodation, which means that many pregnant women who need an accommodation to continue working through pregnancy have no recourse when the employer denies it, even if it is minor and costless.
But despite these broad protections, pregnancy discrimination remains disturbingly common. Surveys, studies, and a review of EEOC charges and lawsuit data show that pregnant women still experience employment discrimination. The biases that animate pregnancy discrimination are somewhat unique. People do not, in general, feel animus towards pregnancy or pregnant women. To the contrary, pregnant women are often viewed adoringly—and nurturingly. The bias that causes pregnant women to be disadvantaged at work is the product of attitudes about pregnant women and work. We are not collectively hostile to pregnant women per se but are at best ambivalent about pregnant women who work. One study by Michelle Hebl and colleagues found deeply contrasting reactions by retail employees to pregnant customers versus pregnant job applicants. Pregnant customers were greeted with affectionate and benevolent responses, sometimes with affirming (if perhaps annoying) touches and diminutives (“honey” and “sweetie”). Pregnant job applicants, by contrast, faced open hostility. And this hostility increased, according to a follow-up study, for traditionally male-dominated jobs. The reaction we have to pregnant women are situational and role dependent. Other studies have found that this type of pregnancy bias infects a wide range of employment decisions, including those affecting promotions and salary. Added to the well-documented “motherhood penalty,” which results in lower wages and other disadvantages to working mothers (as compared both with working fathers and working non-mothers), pregnancy bias sets women on a disadvantaged path early in their careers and hits them again with each pregnancy.
Current pregnancy discrimination has proven helpful but insufficient to combat the practices that disadvantage pregnant women—and mothers. But women today are significantly better off than they were before the PDA was enacted in 1978, when pregnancy discrimination was a simple, lawful fact of life. Some women today still suffer the effects of that era—having had careers diverted or derailed when it was perfectly legal for employers to subject them to different rules and disadvantages. In 2009, AT&T fought for—and won—the right to continue paying women lower pensions today based on then-lawful discrimination against them in the 1960s and 1970s (discussed here). So even fifty years later, that discrimination can still be felt. This history may be forgotten, which seems apparent from the incredulous reactions to Elizabeth Warren’s story, but we do women a disservice by denying the challenges that have shaped their lives and careers—and may continue to do so today. Take a minute and ask your mother, grandmother, or great-grandmother how she was treated at work when she became or planned to become pregnant. You might be surprised at the answer.