Justice Ruth Bader Ginsburg, who died last week at the age of 87, left a legacy that will be felt for generations. As an advocate, then judge, and then Justice, she played an enormous role in shaping rights of sex equality under federal constitutional and statutory law. Central to her work was a commitment to a basic idea—that men and women should have an equal opportunity to capitalize on their natural talents and abilities. This means, among other things, that the government cannot impose rules based on stereotypes, but rather must give individuals the opportunity to pursue education, careers, and other pursuits as befits their talents rather than society’s notions about their proper place.
This view of equality, which Ginsburg argued for as a litigator and applied as a jurist, led to the invalidation of a host of sex-based classifications in state and federal law, which had operated to ensure that men and women fulfilled different roles in society. Equality demands that individuals choose which paths to follow in life, uncoerced by a legal system that has made that decision for them. As a lawyer, Ginsburg successfully litigated the first case in which the Supreme Court invalidated a state law on grounds of gender equality. In Reed v. Reed (1971), the Court demanded that Idaho justify its statutory preference for male over female relatives to serve as the administrator of a decedent’s estate—and found its explanation wanting. The state had only stereotypes to explain why it presumed men to be better than women at such a task, and the Court deemed them insufficient to survive heightened scrutiny under the Equal Protection Clause. Over the course of that decade, the Court decided many more sex discrimination cases, holding in most that the state’s use of gender was arbitrary and impermissible.
Twenty-five years after Reed, Ginsburg had the opportunity as a Supreme Court Justice to apply the law she had helped develop. She wrote the majority opinion in U.S. v. Virginia (1996), in which the Supreme Court invalidated the male-only admissions policy of the Virginia Military Institute, drawing on this conception of equality. “Neither federal nor state government acts compatibly with equal protection when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.”
In the VMI case, Ginsburg embraced the ideal of women’s equal citizenship. Citizenship is a notion that can be used narrowly to describe one’s formal status in a country, but it can also be used more broadly as a measure of inclusion in society. This latter concept is multi-dimensional; an equal citizen is not the target of discrimination or deprived of full participation in our political system; an equal citizen also has sexual and reproductive autonomy that enables her to decide whether and when to form a family. It is this notion of citizenship that leads to the term “second-class citizen,” a way of describing an individual or group who despite legal status is denied some important right or responsibility that others in the community enjoy.
An important dimension of equal citizenship is social citizenship, which refers to access to the means of economic security, such as paid work. One of Ginsburg’s contributions was to remain focused on the ways in which women are denied equal social citizenship because of their unique role in the reproductive process. She wrote many times in judicial opinions about the inextricable link between women’s ability to access contraception and abortion and their ability to pursue careers and achieve economic self-sufficiency.
Ginsburg’s concern about women’s ability to participate equally in the work force also had implications for pregnancy discrimination law. She firmly believed that women’s unique role in the reproductive process should not force them to choose between motherhood and work. As she told the New Yorker in a 2013 interview, “It bothers me when people say to make it to the top of the tree you have to give up a family.” She believed that men and women should have equal opportunity to pursue a career and family life, which is only possible if employers accommodate
the physical effects of pregnancy in order to prevent the temporary challenges of pregnancy and childbirth from becoming permanent career disadvantages.
In AT&T Corp. v. Hulteen, the Supreme Court considered whether AT&T should be permitted to pay lower pensions to retired employees who took pregnancy-related disability leaves before federal law required employers to treat such leaves just like any other leaves. The majority ruled in AT&T’s favor, concluding that because the company’s discrimination against pregnant workers was lawful at the time, the resulting pension disparities did not violate current pregnancy discrimination law. Justice Ginsburg dissented, criticizing the majority for reading the federal Pregnancy Discrimination Act of 1978 to allow women to be penalized in perpetuity for taking pregnancy-related leaves. She condemned the refusal to heed the PDA’s “core command” that employers must “cease and desist” disadvantaging female employees on the basis of pregnancy. She also linked the particular situation by Hulteen to a broader history of inequality for pregnant workers, one in which “[c]ertain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.” In essence, she chided the majority for relegating formerly pregnant workers to a type of second-class citizenship with a real economic bite.
Although the situation in Hulteen affects only workers who took pregnancy leaves long ago, pregnancy discrimination law falls short in another significant way: It does not impose a requirement that employers provide necessary accommodations to pregnant workers. But a bill just passed by the House of Representatives with strong bipartisan support would do just that.
Under current law, employers with at least fifteen employees are bound by the Pregnancy Discrimination Act (PDA), which imposes two basic rules: (1) employers cannot make employment decisions based on pregnancy, childbirth, or related medical conditions; and (2) employers must treat pregnant workers at least as well as workers with other kinds of temporary disability, including in the provision of leave and benefits.
The second rule comes from a separate (second) clause of the PDA and is the source of accommodation rights. But, by congressional design, these rights are comparative rather than absolute. If an employer provides workplace accommodations to a non-pregnant employee with a temporary disability, then a pregnant employee might be entitled to the same accommodation. The exact scope of the comparative right has been the subject of extensive litigation; the Supreme Court’s 2015 opinion in Young v. United Parcel Service set forth the approach for determining whether the PDA requires a particular employer to accommodate the needs of a pregnant worker. (This is discussed in more detail here.) But even with Young, which directed courts to stop taking such a stingy view of the comparative right of accommodation, pregnant workers are routinely denied even costless accommodations that would permit them to continue working through pregnancy. The PDA does not require employers to provide reasonable accommodations to pregnant workers unless they have provided them to others.
Accommodation rights are crucial if women are to have equal access to the workforce. While pregnant women generally are physically able to engage in paid work, just as they are physically able to carry out other responsibilities in their lives, there can be conflicts between the physical effects of pregnancy and the demands of a job. Those conflicts vary by individual woman, type of job, and even the course of a particular pregnancy. But common conflicts include lifting restrictions, dangers from exposure to certain toxins or microbes, restrictions on standing for long periods, or the need for regular breaks. Many women, especially those who labor in low-wage jobs with inflexible working conditions or those who labor in traditionally male-dominated occupations with serious physical demands and various kinds of hazards, do need some type of accommodation during pregnancy in order to maximize the chances of a healthy delivery and continue working. In many cases, these conflicts can be alleviated with a minor and inexpensive or costless accommodation from the employer.
The Pregnant Workers Fairness Act (PWFA), H.R. 2694, is an important addition to existing law. It was first introduced in 2012, but until this session had not made it to the floor of either house of Congress for a vote. It was reintroduced in 2019 with bipartisan support, and, in September 2020, passed by a bipartisan vote of 226-103. It heads next to the Senate for consideration.
The PWFA provides an incredibly important addition to current law. Rather than root the right of accommodation in the largesse an employer happens to extend to other temporarily disabled workers, this bill provides pregnant workers with an independent right to reasonable accommodation. The core provision makes it an unlawful employment practice to “not make reasonable accommodations to the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” The bill also protects a pregnant worker from being forced to accept an accommodation she does not want or being forced to take leave if a lesser accommodation is feasible; it further protects her from retaliation for requesting or accepting an accommodation and from being denied employment opportunities that might require an accommodation.
This right of accommodation is modeled on the Americans with Disabilities Act (ADA), which guarantees disabled workers reasonable accommodations that do not impose an undue hardship on the employer. Pregnant workers, under this bill, would have the same right. The bill also borrows from the ADA the procedure for determining appropriate accommodations; the employer and employee engage in an interactive process to determine which accommodations are necessary and whether they can be accommodated without hardship. Simply forcing an employer to engage in this process will be a big improvement over the current situation, in which employers often reflexively deny requests for accommodations even when they are minor and costless.
If enacted, the PWFA would provide protection for many pregnant women who struggle to navigate jobs and working environments that were typically not designed with them in mind. An absolute right of accommodation would be particularly helpful for those women working in traditionally male-dominated occupations that tend to involve greater physical demands and hazards than traditionally female occupations. This bill could thus help break down the entrenched occupational segregation in the American economy. And this would be an important step in honoring Justice Ruth Bader Ginsburg’s legacy, as she devoted her life to ensuring that women can be full members of society.