Laurie Anne Freeman, a world-renowned expert on information technology and Japanese politics and a professor in the Political Science Department at the University of California, Santa Barbara, received extremely positive reviews from her department until she had two daughters and took leaves to be with them. (1) The reviews she received after returning from her leaves were increasingly critical of her research and productivity. (2) Despite family-friendly university policies, including rules that prohibited consideration of leave time when evaluating productivity, the department repeatedly evaluated her earlier than scheduled and compared her unfavorably with professors who had not taken leaves. (3) When Freeman came up for tenure, she had an impressive list of accomplishments including two prestigious fellowships, one book published and one under contract, and invitations to present her work at leading institutions including Harvard and Stanford. (4) Overwhelmingly negative assessments from her department, however, culminated in a unanimous recommendation to deny tenure. (5) But that was not the end of the road for Freeman. (6)
The Chancellor sent Freeman's case back to the Political Science Department for a new tenure review. (7) Again, the department at tacked her scholarly work. (8) This time, however, the Chancellor could not overlook the overwhelmingly positive assessment of experts in her field and her outstanding resume. (9) The Chancellor granted her tenure. (10) Freeman was not satisfied; she filed a charge of sex discrimination with the Equal Employment Opportunity Commission (the "EEOC"), alleging that her decisions to have children and to use the university's family-friendly policy were the real reasons for her tenure denial. (11) On September 6, 2005, Freeman was granted a rare EEOC cause determination. (12) Charlotte Fishman, Freeman's lawyer, said that she thought the cause determination was important because it drew attention to the sex-plus discrimination that women face in academia. (13) Sex-plus discrimination, however, is not limited to academia. Freeman's story highlights the discrimination that women face in the workplace, even at so-called family-friendly institutions.
Despite legislation designed to promote equality for women and mothers in the workplace, including Title VII of the Civil Rights Act of 1964 ("Title VII"), the Pregnancy Discrimination Act (the "PDA"), and the Family and Medical Leave Act (the "FMLA"), discrimination persists. Role-reinforcing stereotypes (14) and the male-centric job model (15) continue to constrain women. The existing statutes are in large part narrowly applied by the courts and, as written, are insufficient to curtail the problem. The passage of the PDA acknowledged that pregnancy discrimination is a problem and began to roll back the paternalistic treatment of pregnant women, (16) but the PDA has not significantly alleviated the problem of pregnancy discrimination. It has been construed narrowly so that in many jurisdictions it covers only discrimination arising from pregnancy itself, as distinct from its side effects. (17) And the PDA does not grapple with many fundamental issues necessary to secure equality for women in the workplace and at home, such as how to structure the provision of childcare and breast-feeding. Women can attempt to pursue these claims as sex-plus claims under Title VII, but that route has proven to be generally unsuccessful. (18) Thus, many women are left unprotected from discrimination in the workplace based on their status as mothers, childcare providers, and producers of breast milk.
According to one possible indicator, the number of charges filed with the EEOC, pregnancy discrimination is on the rise. (19) With more than sixty-eight million women in the workforce, including 72.9 percent of women with children under age eighteen, (20) in recent years the EEOC has seen a thirty-five percent increase in the number of pregnancy discrimination charges filed when compared with the number of charges filed in 1992, (21) even though the United States has seen a nine percent reduction in its birth rate. (22) One reason for the rise in charges is that more women are in the workforce today than when the PDA was passed. In 2003, women comprised forty-seven percent of the total labor force, with a labor force participation rate of 59.5 percent (meaning that 59.5 percent of women at least sixteen years old were working or seeking employment). (23) Nearly three-quarters of mothers are in the workforce, including most women with very young children. (24) A second factor is that today more women work during their pregnancies and work further into their pregnancies. (25) In the decade before the PDA was passed, more than half of employed women quit their jobs when they learned they were pregnant. (26) But by the early 1990s the number of women who quit their jobs in anticipation of childbirth dropped to 26.9 percent. (27) Another factor that may have influenced the rise in charges is that a sluggish economy has pushed employers to lay off workers and stress productivity. (28) Accompanying the rise in pregnancy discrimination cases is a growing number of cases challenging discrimination against mothers and fathers based on their childcare responsibilities. (29) Such challenges are generally raised under Title VII. (30)
This Comment examines discrimination against mothers in the workplace, including discrimination against women on the basis of pregnancy, childcare, and breast-feeding, and proposes that new legislation is necessary in order to create equal opportunities for men and women, at work and at home. This new legislation, the Parental Discrimination Act, would specifically try to remedy the embedded assumptions and biases that lie beneath discrimination against pregnant women and mothers. Until the embedded assumptions and biases that form the basis for the current work-family structure are eradicated, women and men will not be able to enjoy equal opportunities both at work and at home. Part I of this Comment lays out the history of discrimination against pregnant women and mothers at work, and examines the legislation designed to promote equality between men and women in the workplace, focusing on Title VII (sex-plus cases and the PDA). It then looks at Title VII decisions to discern the state of the law and note the areas where pregnant women and mothers are not protected from discrimination. Part II contrasts the current status of the law with the proposals of various legal theorists and offers a critique of the effects of the current statutory framework. Part III suggests an accounting of the holes in the statutory framework and proposes new legislation to stiffen the protections given to pregnant women and mothers in the workplace.
THE SCOPE OF PROTECTION FOR PREGNANT WOMEN AND MOTHERS
A Brief History of Mothers & Pregnant Women in the Workplace
Throughout history women have enjoyed fewer legal rights and career opportunities than men; historically a woman's chief profession was to be a wife and mother. (31) In Bradwell v. Illinois (32) in 1873 and Muller v. Oregon (33) in 1908, the Supreme Court upheld state laws limiting the types of jobs women could perform and the number of hours they could work in part because there was a governmental interest in promoting women's maternal functions and because those maternal functions were incompatible with the workplace. (34) And even with time, the idea that a woman (and in particular a pregnant woman) belonged at home with her children did not fade away. In the 1950s some states created disability insurance programs to provide partial wage replacement to temporarily disabled workers, but these programs either excluded pregnancy or provided only restricted pregnancy benefits. (35) Before Congress passed the PDA, it was not uncommon for pregnant employees to be fired, demoted, forced to take an unpaid leave, or denied leave entirely. (36)
Today, however, nearly thirty years after the PDA was passed, pregnancy discrimination persists and discrimination against parents due to their childcare responsibilities is on the rise, as evidenced by the EEOC statistics cited in the Introduction. (37) Underneath this continued pattern of discrimination lie enduring stereotypes about pregnant women and mothers. (38) Research shows that women who become pregnant are viewed as less competent in the workplace. (39) Women who adopt more flexible schedules are also viewed as less competent. (40) And new "momism" dictates that in order to succeed at motherhood a mother must dedicate her entire life to taking care of her children, placing the bar for mothers so high that it cannot be reached. (41) These stereotypes and others can be seen in many pregnancy discrimination cases and even in the legislation designed to halt pregnancy discrimination. They will be explored more fully in Part II of this Comment.
The Emergence of Legislative Protections for Working Women: Title VII, the PDA, & the FMLA (42)
In 1964 Congress passed Title VII of the Civil Rights Act, providing protections against employment discrimination based on race, color, national origin, religion, and sex. (43) The inclusion of sex discrimination in the Act was a last minute decision and due in large part to a successful fight by women's rights advocates. (44) Following the Act's passage, women's rights advocates worked to ensure vigorous enforcement of it by the EEOC. (45) Women began to pursue Title VII claims, and their successes and disappointments paved the way for the development of sex discrimination jurisprudence to date. (46)
The two aspects of Title VII most relevant to an examination of discrimination claims based on pregnancy, motherhood, and childcare are sex-plus cases and cases filed under the PDA. Sex-plus claims are premised upon discrimination "against subclasses of women, distinguished not...