Workplace Discrimination and Reproduction

The central justification for discrimination against cisgender women, argued the late Ruth Bader Ginsburg, was discrimination on the basis of pregnancy. The ability to get pregnant still makes a significant difference to cisgender women, transmen, and nonbinary workers now.

As Ginsburg studied the issue in the 1960s and 1970s, feminists argued that employers' willingness to discriminate against any worker who could pregnant--and especially cisgender women--stemmed from the possibility of pregnancy--and an assumption that parenting workers would permanently leave the workplace to prioritize childcare. First, we will study the Supreme Court's now-notorious decision in Geduldig v. Aiello, which refused to equate sex discrimination and pregnancy discrimination under the federal Equal Protection Clause. How does this case read to you? How do trans and non-binary workers change how we see Geduldig, if at all?

Congress responded to Geduldig and a related case under Title VII, Gilbert v. General Electric, by passing the Pregnancy Discrimination Act of 1978. A strange coalition of anti-abortion activists and pro-choice feminists supported the law. The act mandated a sort of formal equal treatment for pregnant workers--employers had no affirmative duty to accommodate anyone, but if they chose to do so, there were limits on their ability to exclude pregnant workers. We will consider the scope and limits of this mandate, the extent to which it preeempts state laws on family leave or pregnancy, and its relationship to discrimination on the basis of family responsibility.