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94 Yale L. J. 929 (1984-1985)
Employment Equality under the Pregnancy Discrimination Act of 1978

handle is hein.journals/ylr94 and id is 947 raw text is: Employment Equality Under the Pregnancy Discrimination Act of 1978 Pregnancy discrimination exhibits a coherent social logic. The exclusion of women from employment on the basis of pregnancy perpetuates the sexual division of productive and reproductive labor, thereby confirming women's second class status in the work force. The Pregnancy Discrimi- nation Act of 19781 amends Title VII of the Civil Rights Act of 19642 by clarifying that the Act's proscription of sex-based employment discrimina- tion includes discrimination on the basis of pregnancy.' The PDA has been construed to require that pregnant employees be treated comparably with others on the basis of ability or inability to work.4 This Note chal- lenges the sufficiency of a standard of comparable treatment on statutory and broader, equitable grounds. When construed as integral to Title VII, the PDA authorizes both a disparate treatment and a disparate impact cause of action. It thus entitles plaintiffs to challenge overtly exclusionary and facially neutral practices5 that circumscribe women's employment opportunities on the basis of preg- nancy.' Under Title VII as amended, women are entitled to demand, not 1. Pub. L. No. 95-555, § 1, 92 Stat. 2076, 2076 (codified at 42 U.S.C. § 2000e(k) (1982)) [here- inafter cited as the PDA or the amendment]. 2. 42 U.S.C. §§ 2000e to 2000e-17 (1982) [hereinafter cited as Title VII or the Act]. 3. The PDA amends Title VII's definitional provisions, and reads in relevant part: 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, childbirth, 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 title shall be interpreted to permit otherwise. 42 U.S.C. § 2000e(k) (1982). 4. See infra pp. 931-33. 5. Facially neutral practices susceptible to disparate impact challenge include leave policies and job definitions, discussed infra Part II. 6. The coverage of the PDA is limited to pregnancy, childbirth, or related medical conditions. 42 U.S.C. § 2000e(k) (1982). Pregnancy and childbirth are moments in the human reproductive process specific to women, and must be distinguished from childrearing, the social process of parent- ing, commonly performed by women, but not biologically specific to them. Conflicts between parent- ing and employment, no less than conflicts between pregnancy and employment, have a disparate impact on women in the workplace. Both institutionally enforce women's relegation to the domestic sphere. See Frug, Securing Job Equality for Women: Labor Market Hostility to Working Mothers, 59 B.U.L. REV. 55 (1979). However, as a legal matter, the problems they pose remain distinct. Conflicts between parenting and employment require solution in gender neutral terms, see, e.g., Comment, Parental Leaves of Absence for Men, 31 BUFFALO L. REV. 273 (1982), and, as such, remain outside the scope of the present discussion.