The Womb Factor: Pregnancy Policies and Employment of Women

Date01 March 1981
Published date01 March 1981
Subject MatterArticles
San Diego State University
are biologically different -
that is not a political
statements, but a fact. What does having a womb mean in terms of
-L 1
employment? What are some of the consequences assumed to fol-
low from women’s capacity to reproduce, as reflected in public law and
Since the mid-1960s, feminists have acknowledged the importance of
public policies and programs in generating opportunities for women, and
have geared much of their political efforts toward changing existing laws
and developing strategies which will result in greater social, political and
economic independence for women.’ In The Politics of Women’s Liberation, Jo
Freeman explores the coalitions and activities of women’s groups in assisting
in passage of key legislation and implementation of the Civil Rights Act of
1964. This study examines recent legislative and judicial decisions with re-
spect to treatment of pregnancy as a public policy issue. Its context is the
interaction of judges, career bureaucrats, lobbyists, and legislative commit-
tees as they set the terms by which employers treat women workers.
By reviewing restrictions on women’s employment it is possible to see
clearly the relationship between social structure and individual options.
It is also possible to examine the development of a feminist political strategy
which is both pragmatic (acknowledging the incremental nature of social
change) and drastic in its long-range implications for defining work and
women’s relationship to both production and reproduction.
The issue of employment policies and pregnancy becomes increasingly
significant as women who might and do bear children join the labor force.
Most women in the U.S. will be employed at some time in their lives. Preg-
nant women and mothers are employed in dramatically larger numbers
today than in the past. The number of working mothers &dquo;has increased more
than threefold since 1950, and in 1975 the labor force participation rate of
mothers was 47 percent.&dquo;2 A substantial number of women who are preg-
nant are now employed, and they are a fair percentage of all women work-
ers. According to the National Center for Health Statistics:
Of about 3,034,000 women who had a live birth during a 12-month period
in 1972-73, an estimated 1,260,000 or 41.5 percent worked during their
pregnancy.... Such pregnant workers comprised about 8.8 percent of the
estimated ... women of reproductive age in the labor force at the time.&dquo;
The focus in this study is the way in which employers, lawmakers and
judges deal with the fact that women have the capacity to become pregnant.
Implicitly the question comes down to arguments about whether women are
just like men, and therefore should be treated the same for employment
EDITORIAL NOTE: This article received the 1979 Women in Politics prize, WPSA.
NOTE: My thanks to my colleagues in Women’s Studies for their encouragement and support.
1 For the purposes of this discussion, I am borrowing Linda Gordon’s definition of feminism:
"An analysis of women’s subordination for the purpose of figuring out how to change it."
Woman’s Body, Woman’s Right (New York: Viking, 1976).
U.S. Department of Labor, "Woman Workers Today," 1976, p. 3.
3 U.S. Department of Health, Education and Welfare, "Advance Data," September 15, 1977,
p. 1.

purposes, or whether women are not only different, but deserve different
treatment. This study deals briefly with historical treatment of pregnant or
potentially pregnant women, describes the process of amending the Civil
Rights Act of 1964 to include pregnancy discrimination as sex discrimina-
tion, with an analysis of the central arguments postulated. Conclusions weigh
the changing patterns of public policy against prevailing expectations about
societal employment patterns of women and men.
A review of U.S. Supreme Court decisions and employer policies can
illustrate the attitudes toward women which may affect current policy-
making. From Muller v. Oregon4 to Gilbert v. General Electric, 5 the womb factor
has affected women’s employment opportunities. Quite often, restrictive
policies were developed out of an interest in &dquo;protecting women.&dquo; Often
these protected women from long hours as well as from overtime pay and
advancement.~ The Muller case was one step in the long labor movement
struggle to achieve better working conditions for all workers. This Supreme
Court decision had drastic long-term consequences for women. The
rationale in Muller v. Oregon for protective legislation was grounded in as-
sumptions about women’s bodies and their dependency on males (reinforced
by marriage and property laws):
That woman’s physical structure and the performance of maternal functions
place her at a disadvantage in the struggle for subsistence is obvious. This is
especially true when the burdens of motherhood are upon her. Even when
they are not ... continuance for a long time on her feet at work ... tends to
injurious effects upon the body, and as healthy mothers are essential to vigor-
ous offspring, the physical well-being of a woman becomes an object of public
interest and care in order to preserve the strength and vigor of the race ... she
is properly placed in a class by herself....’
The protective rationale and classification by sex have continued to define
the boundaries within which women must attempt to provide economic sup-
port for themselves and their families. As a result of these assumptions, the
law, employer policies, and judicial interpretations might be summarized as
follows: if she is pregnant, woman needs protection; if she is not pregnant,
she might someday be, and therefore it is rational to protect (or exclude) her
in advance.8
Because of their assumed frailty, related to the capacity to reproduce,
women have been excluded from a range of jobs. Only when &dquo;manpower&dquo;
has been diverted for other purposes such as war have employers encour-
aged women to accept the full spectrum of tasks. During the 1920s and
4208 U.S. 412 (1908).
429 U.S. 129 (1976).
Barbara Allen Babcock et al., Sex Discrimination and the Law (Boston: Little, Brown, 1975),
Chapter One.
Muller v. Oregon, 208 U.S. 412 (at 422).
For discussion of these issues, see: Jane Roberts Chapman and Margaret Gates, Women Into
Wives, Vol. 2 (Beverly Hills: Sage, 1977); Ruth Bader Ginsburg, "Sex Equality and the
Constitution: The State of the Art," Women’s Rights Law Reporter 4, No. 3 (Spring 1978):
143-47; Kathleen Peratis and Elisabeth Rindskopf, "Pregnancy Discrimination as a Sex
Discrimination Issue" (California Commission on the Status of Women, Equal Rights Pro-
ject, 1975); Adrienne Rich, Of Woman Born (New York: Bantam, 1977); Ruth Weyand,
"Discrimination Because of Pregnancy," Equal Opportunity Forum (February 1977), pp.
4-23; and Linda H. Kistler and Carol C. McDonough, "Paid Maternity Leave — Benefits
May Justify the Cost," Labor Law Journal
(December 1975): 782-94.

1930s, when jobs were scarce, it was women who were assumed to be dispos-
able workers. Kathleen Williams, testifying before Congress, reports that
were told that they should have as their primary goal home and child
rearing. According to Williams: &dquo;A National Education Association study in
1930-31 revealed that 77 percent of all school systems surveyed refused to
hire wives; sixty-three percent dismissed women teachers if they sub-
sequently married.&dquo;9 She also reports that during the Depression whole cities
campaigned against working married women and many state legislatures
considered bills to restrict the employment of married women.10 If women
were employed, and retained after marriage, they were frequently fired as
soon as pregnancy became known.&dquo; The practice of firing pregnant women
was studied by the Children’s Bureau in 1942. Their observation was that
while protection of the woman and fetus was the formal rationale, there was
some indication that &dquo;aesthetic and moral&dquo; qualms about the presence of
pregnant women in the classroom were the informal basis for such firings.
In these cases, women lost jobs because their &dquo;natural&dquo; and primary role
offended others. 12 Nancy Erickson notes that women workers were con-
scious of the discriminatory effect of employer policies and disability laws
which excluded pregnancy, pointing to the 1952 effort of the New York
Women’s Trade Union League to amend the state disability benefits law &dquo;to
cover disabilities caused by pregnancy and childbirth.&dquo;13
Although there have been some modificaitons of law since World War
II, a heritage lingers. Despite antidiscrimination laws, if women are to be
hired at all, employers have felt free to ask them if they are married or plan
to be, if they intend to have children, and what form of birth control they
use. In the event that they exercise a right to bear children, women have
been fired or forced to take extended leaves of absence whether capable of
working or not. They have been denied unemployment benefits when fired.
Those on leave have lost seniority and had to start over as new employees at
lower levels. 14
Several Supreme Court decisions in the 1970s dealt with the issues of
marriage and reproduction as they affect employment. A regulation forbid-
ding employment of married women was ruled illegal under Title VII of the
Civil Rights Act of 1964,15...

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