50 for 50: Five Decades of the Most Important Discrimination Law Developments
Number 7: The Pregnancy Discrimination Act of 1978
(You Mean Gender Discrimination Under Title VII Didn’t Always Include Pregnancy?)
We often think of the Civil Rights Act of 1964 first through the lens of race discrimination—understandably so, since the televised images of African Americans in nonviolent protests having fire hoses turned upon them in Birmingham, Alabama in 1963 were arguably the final impetus for President Kennedy’s introduction of what later became codified as Title VII of that statute.
Still, gender, and in particular, pregnancy, was the subject of state sanctioned discrimination for decades prior to enactment of Title VII. Yet, in the immediately ensuing years after enactment, it still was not clear that Title VII’s prohibition against gender discrimination extended to pregnancy. Such uncertainty is not surprising, given the history of upholding laws that discriminated against women—based upon an asserted state interest in women’s health.
In 1905, Curt Muller, the owner of a laundry in Portland, Oregon, was convicted of a misdemeanor and fined $10 for permitting an employee to work more than 10 hours in a day. This practice was otherwise perfectly legal—if only the employee was a man. Because the employee was a woman, the working hours violated an Oregon statute (that “no female [shall] be employed in any mechanical establishment, or factory, or laundry in this State more than ten hours during any one day”). The U.S. Supreme Court unanimously upheld the statute on the basis that it was justified by Oregon’s interest in protecting women’s health—“the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.” Based on this line of reasoning, throughout the 1950s and 1960s, several states passed laws prohibiting pregnant women from working for intervals before and after the birth of children.
In the 1970s, as the ranks of women in the workforce continued to grow, public sentiment, fanned by two unpopular Supreme Court decisions, swung in favor of amending Title VII to expressly bar discrimination based upon pregnancy. In 1974, in Geduldig v. Aiello, the U.S. Supreme Court held that the exclusion of public medical disability benefits for pregnant women in California did not violate the Equal Protection Clause (14th Amendment to U.S. Constitution). The court reasoned that the relevant statute was non-discriminatory because the cost savings of such exclusion benefitted both sexes—all men and nonpregnant women. In 1976, in General Electric v. Gilbert, the Supreme Court ratified a similar exclusion for private insurance through an employer (even though the plaintiff had indeed brought a sex discrimination claim under Title VII), deciding that “an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all.”
The Supreme Court’s holdings in these two cases, and particularly in General Electric, brought swift and robust action. In 1976, leading civil rights and women’s organizations formed the Campaign to End Discrimination Against Pregnant Workers. That in turn led to the Pregnancy Discrimination Act, which made it unlawful to discriminate against women.
The PDA was introduced in Congress in March 1977 and was ultimately enacted in 1978. Today, pregnancy is a protected type of gender discrimination under Title VII is so broadly that it is hard to believe that it was ever otherwise.