Defining the protected class: who qualifies for protection under the Pregnancy Discrimination Act?

• Author: Habig, Jill E.

[W]hat makes pregnancy a disability rather than, say, an additional ability, is the structure of work, not reproduction. (1)

INTRODUCTION

The Pregnancy Discrimination Act (PDA) (2) amended Title VII of the Civil Rights Act of 1964 (3) to combat systemic workplace discrimination against women because of their reproductive capacity. Congress drafted the PDA to frame pregnancy discrimination broadly in pursuit of this ambitious goal, intending to protect women "before, during, and after" pregnancy. (4) The ambiguity of the Act's text and legislative history, however, has caused confusion in the courts, which have differed in their interpretations of the PDA's scope. Many of these disagreements have centered on what types of employer actions constitute "discrimination" and whether the PDA entitles a woman to accommodation or simply protection from discrimination. This Comment focuses instead on a prior question: who is sufficiently "affected by pregnancy, childbirth, or related medical conditions" (5) to qualify for the PDA's protection? This preliminary decision is a crucial, yet underexplored, component of the discussion about the PDA's scope.

Defining the PDA's protected class is particularly difficult when the plaintiff is not pregnant at the time of the alleged discrimination. In 2007, the Eighth Circuit became the first circuit court to address whether the PDA applies to contraception in Union Pacific. (6) That case illuminates the doctrinal inconsistencies in judicial applications of the PDA to alleged discrimination arising outside the nine-month window of pregnancy. The Supreme Court made clear in UAW v. Johnson Controls, Inc. that an employer's exclusion of all women "capable of bearing children" from certain jobs violated Title VII. (7) The scope of the Court's decision in Johnson Controls, however, remains unclear. Far from resolving the dispute, Union Pacific highlighted the extent of the discord among courts with regard to contraception specifically, and "potential pregnancy" (8) more generally. The court's decision contradicts several federal district court holdings (9) and casts doubt on the PDA's coverage of women who are not yet pregnant at the time of the alleged discrimination. Moreover, it fails to acknowledge that the structural reality of the workplace more heavily burdens women because of their biological differences from men.

While this Comment advocates a broad interpretation of the PDA's protected class, it does not support an unlimited interpretation. Indeed, one concern in extending the PDA's scope is to avoid expanding it beyond recognition, to the point where it is no longer a useful tool. Misplacing women's traditional social care-giving roles under the rubric of sex-specific, biological differences also creates a danger of reinforcing the very sex stereotypes the PDA was designed to combat. Therefore, while courts should remove a woman's current pregnancy status from the question of whether she is a member of the protected class, there is still a need to distinguish between alleged discriminatory acts that implicate women's biological differences and those that do not.

For example, an employer who fires a woman for missing work to care for her children likely would not be liable under the PDA because the employer's decision implicates no biological difference specific to women. Instead, it implicates this particular woman's social role as a caregiver. By contrast, an employer who fires a woman because of an assumption that she might take too much time off in the future (once she becomes pregnant and has children) would be liable under the PDA. The PDA would cover the employer's actions because the employer's assumption rests on a belief in the connection between a biological ability (pregnancy and childbirth) and a social act (primary caregiving). Here, the employer assumes that a woman's reproductive capacity will (or may) lead to a certain behavioral result (more time with her kids and less time at work). The employer's assumption thus implicates women's biological difference from men because it is rooted in a belief about the connection between childbearing and childrearing.

This Comment argues that the doctrine could be clarified if courts understood and accounted for how predominant workplace structures limit women's professional opportunities during their childbearing years. Such an understanding exposes the need for a broader conception of the PDA's protected class, which would bring PDA jurisprudence in line with the original broad aims of the Act. This Comment proposes that women be covered by the PDA whenever an employer action threatens their workplace status because of their reproductive capacity.

1. A BRIEF HISTORY OF THE PDA

   Congress's primary focus in passing the PDA was to overturn General Electric Co. v. Gilbert, (10) in which the Supreme Court held that pregnancy discrimination was not a sex-based classification under Title VII. (11) Consequently, both the text and legislative history offer little guidance for applying the PDA other than the basic premise that discrimination on the basis of pregnancy is sex-based discrimination. Congress used expansive language both in the statute itself and in the legislative history, (12) but it left key components of the text undefined, including the phrase "related medical conditions." (13) Comments by lawmakers and subsequent Supreme Court opinions indicate support for a broad interpretation of the phrase/4 but they fail to specify precisely how...