Litigation and legislative reforms have achieved formal rights to equal treatment for women in employment. But women continue to perform disproportionate amounts of caregiving in the home, to suffer economic penalties for childbearing and to face discrimination on account of motherhood in the workplace.
“The disconnect between formal equality and the deepening work-family conflict is no accident,” says Deborah Dinner, JD, legal historian and associate professor of law at Washington University in St. Louis. Dinner argues that one path toward resolving this paradox lies in history.
“If you look at history, feminists had a much richer vision of sex equality,” she says. “They set out not only to achieve same treatment of men and women — formal equality — but to transform the relationship between paid employment and reproductive work in the home.”
Dinner concludes that “feminists’ historic vision remains relevant today and could guide both contemporary judicial doctrine and legislative reform toward a more expansive conception of sex equality.”
She discusses the law’s role in sex equality and opportunities for reform in “The Costs of Reproduction: History and the Legal Construction of Sex Equality,” published in a recent issue of the Harvard Civil Rights-Civil Liberties Law Review.
Dinner says that feminists pursued anti-discrimination laws and affirmative social-welfare entitlements in service of a two-prong distributive justice agenda.
First, they aspired to equalize responsibility for childrearing between women and men within the home. Second, they sought to reallocate the economic costs of pregnancy, childbirth and childrearing between men and women within the household, and from the private family to the larger society.
“The cost-sharing dimension of the feminist vision for sex equality has not yet come to fruition,” she says.
Dinner notes that one of the most troubling issues for feminists, from a half-century ago through the present day, is the status of pregnant women in the workplace.
“In the late 1960s, working women who became pregnant faced a dire situation,” she says.
“Employers routinely fired pregnant workers regardless of their capacity to continue working, or required them to take mandatory, unpaid maternity leaves that lacked any guarantee of a job when a woman was ready to return to the workplace.”
Legal feminists used temporary disability as a new means to regulate pregnant workers consistent with the prohibition on sex discrimination in employment contained in Title VII of the Civil Rights Act of 1964.
“Temporary disability posed three strategic advantages,” Dinner says.
“First, the model would require employers to conduct an individual evaluation of pregnant women’s capacity to perform their job duties.
“Second, the model drew a distinction between pregnancy and childbearing, thus distinguishing between women’s biological role in reproduction and social norms about who holds responsibility for childrearing.
“Third, including pregnancy within disability insurance benefits would extend economic security to pregnant women. But it did so via a sex-neutral legal category, rather than a sex-unique entitlement that risked discouraging employers from hiring women.
“By 1972, legal feminists succeeded in convincing the Equal Employment Opportunity Commission, the agency charged with enforcing Title VII, to issue guidelines requiring employers to treat pregnancy as it did other temporary disabilities,” she says.
In 1974 and ’76, however, the Supreme Court issued two decisions, Geduldig v. Aiello and General Electric Co. v. Gilbert, which rejected the temporary disability model and outraged legal feminists.
Following Gilbert, women’s rights, civil rights, labor, and perhaps most surprisingly, anti-abortion groups formed a coalition to campaign for legislation that would override the decision.
“The Pregnancy Discrimination Act of 1978 (PDA) defines unlawful sex discrimination under Title VII to include discrimination ‘because of or on the basis of pregnancy, childbirth, and related medical conditions,’ ” Dinner says.
“The ambiguity about whether the PDA requires only formal equal treatment or the affirmative accommodation of pregnancy in the workplace continues to plague the courts,” Dinner says. “Particularly when deciding disparate-impact claims that challenge harsh absenteeism policies, courts often interpret the PDA to prohibit only discriminatory animus against pregnant women and not to impose redistributive mandates on employers.
“In deciding these cases, courts might do well to hesitate before separating the issue of sex equality from that of cost sharing, and antidiscrimination from affirmative entitlements. In the past, feminists understood that sex equality would require redistribution of the costs of reproduction. Advocates and courts today can draw on this history to interpret the PDA in a more expansive manner.”
Dinner says that augmenting the Family and Medical Leave Act (FMLA) is one place Congress might start if it wanted to combat sex-role stereotypes and advance women’s equal employment opportunity.
“The FMLA falls short of helping women to achieve equal participation in the labor market in at least two significant respects,” she says.
“First, leave-taking patterns under the FMLA have reinforced a sexual division of caregiving labor within the family, which in turn deepens sex-role stereotypes that prompt employer discrimination against women.
“Second, FMLA leave is disproportionately inaccessible to low-income men and women — those who need its protections the most — who either do not meet the eligibility criteria or who cannot afford to take unpaid leave.”
Congress and state governments could remedy these limitations by augmenting the federal FMLA or state equivalents, Dinner says.
“Specifically, they might establish incentives to encourage men to take advantage of their protections under the act, and they might enact a paid-leave mandate,” she says.
“Although some might label the latter hopelessly utopian, the success of advocates in campaigning for paid parental leave in California attests to the political feasibility of such a bill.”