Beyond Pregnancy: Litigating Infertility, Contraception, and Breastfeeding in the Workplace

Abstract

In the United States, the lower federal courts frequently determine the meaning of statutes through their decisions. Political science research has mostly focused on how lower courts make their interpretations in light of Supreme Court precedents. This article examines how the federal courts have interpreted the Pregnancy Discrimination Act's (PDA) “related medical conditions” clause in the absence of legislative or Supreme Court guidance. Three primary claims have been litigated as conditions related to pregnancy that therefore require protection in the workplace—insurance coverage of prescription contraception, inclusion of infertility treatments under insurance, and the provision of time and privacy for breastfeeding. Besides the PDA's guarantee of formal equality in the workplace, the Americans with Disabilities Act (ADA) also requires employers to make some accommodations for pregnant women. In all three policy areas the case law demonstrates a lack of consistency and the existence of conflict in the federal district courts, but the appellate courts are slowly beginning to provide some consistency within circuits. As the courts have considered the statutory protection for women extending beyond pregnancy, their responses have been ambivalent at best. It is only in the contraception cases that the door remains open for explicit PDA protection. The ADA may potentially protect women in terms of infertility coverage and breastfeeding; however, Supreme Court rulings requiring disabilities under the ADA to be permanent may have shut the door on the ADA's protection of any aspect of pregnancy.