Pregnancy Discrimination Research Articles

Strange Bedfellows: The Destigmatization of Anti-Abortion Reform

INTRODUCTION As the United States abortion debate continues into its fifth decade since Roe v. Wade, (1) pro-life groups are increasingly aiming to align themselves and their messages with classically or liberal interests. Pro-life groups now heavily focus on women's rights as platform for advancing their ideological arguments and achieving legislative measures that ultimately restrict access to abortion. The use of such platforms allows antiabortion sentiment to appear more palatable to broader swath of while enabling the pro-life movement to soften its image and improve its appeal. This strategy, which I will refer to as pro-life destigmatization, manifests itself most clearly in law and politics, wherein pro-life advocates frame their anti- abortion arguments in broadly appealing, women's rights-oriented terms. This ironic alignment is demonstrated through three examples that collectively represent an underlying effort to destigmatize antiabortion reform and portray it as branch of women's rights: 1) advocacy for the expansion of the Pregnancy Discrimination Act (PDA), particularly in the context of the recently decided Supreme Court case of Young v. United Parcel Service; (2) 2) political advocacy organizations' support for pro-life candidates and the creative framing of antiabortion legislation in election campaigns; and 3) anti-abortion legislation that restricts abortions specifically performed for sex-selection purposes. In each of these examples, there is deliberate appeal to ideals many already value such that, in theory, there would not be much of leap from supporting feminist concerns to supporting the pro-life movement writ large. This connection is so close because, as each of these example shows, the ultimate goal of chipping away at abortion rights is portrayed as secondary, if it is even acknowledged at all. Rather, the pro-life presence is positioned as advocating something different from abortion, be it pregnancy rights or tax reform. Casting anti-abortion arguments in terms is not new effort. (3) Scholars like Reva Siegel have long charted the development of the pro-life movement's women protective antiabortion arguments] and the ways in which the pro-life movement has supplant[ed] the constitutional argument '[a]bortion kills baby' with [the] new claim '[a]bortion hurts women.' (4) Similarly, Mary Ziegler's 2013 article in the Berkeley Journal of Gender, Law & Justice provides detailed history of pro-life feminism, assessing the evolution of pro-life, socially conservative, self-proclaimed feminists and their growing role in the abortion debate. (5) Consider also the decades-old legislative history of the Pregnancy Discrimination Act, which, as discussed infra, shows the law's twin goals of female equality in the workforce and the preservation of woman's right to bear and raise children. (6) Still, the pro-life movement's destigmatization strategy has gained traction in recent years as pro-life feminism targets a new generation of young who reject the illusion that to be pro-woman is to be pro-choice. (7) The examples discussed in this Note are contemporary ones that, when taken as whole, coalesce into indications of dominant trend. This Note adds to this area of scholarship by demonstrating how pro-life advocates, legislators, and courts are currently drawing on feminist and women's rights movements to advance abortion bans and destigmatize anti-abortion sentiment. I. Pregnancy Discrimination in the Workplace An early example of the pro-life movement's effort to insert itself into classically feminist causes is the movement's role in the passage of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964 that prohibits] sex discrimination on the basis of pregnancy. (8) The amendment arose in part as response to the Supreme Court's decision in General Electric Company v. …

Strange Bedfellows: The Destigmatization of Anti-Abortion Reform

INTRODUCTION As the United States abortion debate continues into its fifth decade since Roe v. Wade, (1) pro-life groups are increasingly aiming to align themselves and their messages with classically "feminist" or "liberal" interests. Pro-life groups now heavily focus on women's rights as a platform for advancing their ideological arguments and achieving legislative measures that ultimately restrict access to abortion. The use of such platforms allows antiabortion sentiment to appear more palatable to a broader swath of women while enabling the pro-life movement to soften its image and improve its appeal. This strategy, which I will refer to as pro-life "destigmatization," manifests itself most clearly in law and politics, wherein pro-life advocates frame their anti- abortion arguments in broadly appealing, women's rights-oriented terms. This ironic alignment is demonstrated through three examples that collectively represent an underlying effort to destigmatize antiabortion reform and portray it as a branch of women's rights: 1) advocacy for the expansion of the Pregnancy Discrimination Act (PDA), particularly in the context of the recently decided Supreme Court case of Young v. United Parcel Service; (2) 2) political advocacy organizations' support for pro-life women candidates and the creative framing of antiabortion legislation in election campaigns; and 3) anti-abortion legislation that restricts abortions specifically performed for sex-selection purposes. In each of these examples, there is a deliberate appeal to ideals many women already value such that, in theory, there would not be much of a leap from supporting feminist concerns to supporting the pro-life movement writ large. This connection is so close because, as each of these example shows, the ultimate goal of chipping away at abortion rights is portrayed as secondary, if it is even acknowledged at all. Rather, the pro-life presence is positioned as advocating something different from abortion, be it pregnancy rights or tax reform. Casting anti-abortion arguments in "feminist" terms is not a new effort. (3) Scholars like Reva Siegel have long charted the development of the pro-life movement's "women protective antiabortion arguments]" and the ways in which the pro-life movement has "supplant[ed] the constitutional argument '[a]bortion kills a baby' with [the] new claim '[a]bortion hurts women.'" (4) Similarly, Mary Ziegler's 2013 article in the Berkeley Journal of Gender, Law & Justice provides a detailed history of pro-life feminism, assessing the evolution of "pro-life, socially conservative, self-proclaimed feminists" and their growing role in the abortion debate. (5) Consider also the decades-old legislative history of the Pregnancy Discrimination Act, which, as discussed infra, shows the law's twin goals of female equality in the workforce and the preservation of a woman's right to bear and raise children. (6) Still, the pro-life movement's destigmatization strategy has gained traction in recent years as pro-life feminism targets "a new generation of young women who reject the illusion that to be pro-woman is to be pro-choice." (7) The examples discussed in this Note are contemporary ones that, when taken as a whole, coalesce into indications of a dominant trend. This Note adds to this area of scholarship by demonstrating how pro-life advocates, legislators, and courts are currently drawing on feminist and women's rights movements to advance abortion bans and destigmatize anti-abortion sentiment. I. Pregnancy Discrimination in the Workplace An early example of the pro-life movement's effort to insert itself into classically feminist causes is the movement's role in the passage of the Pregnancy Discrimination Act (PDA), an amendment to Title VII of the Civil Rights Act of 1964 that "prohibits] sex discrimination on the basis of pregnancy." (8) The amendment arose in part as a response to the Supreme Court's decision in General Electric Company v. …

Pregnant Laborers Should Expect Better: The Broken Pregnancy Discrimination Standard and How the Pregnant Workers Fairness Act Can Repair It

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Parity by Comparison: The Case for Comparing Pregnant and Disabled Workers

Abstract In 2008, Congress enacted amendments to the Americans with Disabilities Act ("ADA") that expanded the ADA's definition of "disability," requiring employers to provide reasonable accommodations to workers with temporary impairments. This Article argues that the expansion of the protections of the ADA effectively expanded the protections of the Pregnancy Discrimination Act ("PDA"), too. As the Supreme Court recently reinforced in Young v. United Parcel Service, the PDA generally requires employers to treat pregnant workers "the same" as non-pregnant workers who are similar in their ability or inability to work. Therefore, to the extent that pregnancy-related impairments mirror impairments that are accommodated under the expanded ADA, pregnant workers, too, should be entitled to reasonable accommodations. Although some scholars and courts have suggested that ADA-covered employees cannot be proper comparators for PDA plaintiffs, I make the case that these workers can, and should, be compared. First, I argue that PDA precedent requiring employers to treat pregnant workers the same as other impaired workers, as well as the legislative history of the PDA, compel this comparison. Second, I draw on two theoretical approaches-intersectionality theory and "disruption" theory--to demonstrate that denying ADA comparators to PDA plaintiffs ignores the unique intersectional nature of pregnancy, and would invite stereotyping, segregation, and discrimination. In conclusion, I note that the Supreme Court signaled in Young that courts should take a more expansive view of the types of evidence that can support a PDA claim, opening the door to a broader approach to the comparator question. INTRODUCTION In the last two decades, the United States has seen an explosion in pregnancy discrimination claims. The number of pregnancy-related charges filed with the EEOC nearly doubled from 1992 to 2010,' even though the number of antidiscrimination cases as a whole has declined every year since 1998. (2) Congress enacted the PDA in 1978 to clarify that pregnancy discrimination constituted prohibited discrimination on the basis of sex under Title VII. (3) Yet the prevailing interpretation of the PDA has made it difficult for plaintiffs to establish a successful claim. (4) Moreover, many pregnant workers could work later into their pregnancies if their employers made even simple accommodations--but these accommodations are not currently required by law. (5) Pregnant employees have lost their jobs for reasons directly related to their pregnancies. For example, pregnant workers have been fired for needing extra bathroom breaks (6) or to drink water on the job, (7) and have been denied light duty assignments despite doctor-ordered heavy-lifting restrictions. (8) The difficulties facing pregnant women (9) on the job have increasingly gained the attention of the EEOC, (10) the media, (11) legal scholars, (12) advocacy organizations, (13) and, most recently, the Supreme Court of the United States. (14) On March 25, 2015, the Supreme Court clarified the meaning of the PDA in Young v. United Parcel Service, (15) handing pregnant workers both a victory and a challenge. Young was a victory for pregnant employees because it announced an interpretation of the PDA that has the potential to reinvigorate the Act's protections. It presented a challenge, however, because it reinforced the primacy of the McDonnell Douglas burden-shifting framework as the method for proving most pregnancy discrimination claims. (16) Historically, pregnancy discrimination plaintiffs have found it difficult to prove their cases under McDonnell Douglas because success through that framework almost always depends on the ability to identify a "comparator"--a similarly situated non-pregnant worker who was treated better. (17) Workers seeking accommodations for the temporary impairments that can arise out of pregnancy have been hard-pressed to find comparators because the law has not required employers to provide accommodations to workers with temporary, non-pregnancy-related impairments, either, especially when the source of the impairment is unrelated to the worker's job. …

Parity by Comparison: The Case for Comparing Pregnant and Disabled Workers

Abstract In 2008, Congress enacted amendments to Americans with Disabilities Act (ADA) that expanded ADA's definition of disability, requiring employers to provide reasonable accommodations to workers with temporary impairments. This Article argues that expansion of protections of ADA effectively expanded protections of Pregnancy Discrimination Act (PDA), too. As Supreme Court recently reinforced in Young v. United Parcel Service, PDA generally requires employers to treat pregnant workers the as non-pregnant workers who are similar in their ability or inability to work. Therefore, to extent that pregnancy-related impairments mirror impairments that are accommodated under expanded ADA, pregnant workers, too, should be entitled to reasonable accommodations. Although some scholars and courts have suggested that ADA-covered employees cannot be proper comparators for PDA plaintiffs, I make case that these workers can, and should, be compared. First, I argue that PDA precedent requiring employers to treat pregnant workers same as other impaired workers, as well as legislative history of PDA, compel this comparison. Second, I draw on two theoretical approaches-intersectionality theory and disruption theory--to demonstrate that denying ADA comparators to PDA plaintiffs ignores unique intersectional nature of pregnancy, and would invite stereotyping, segregation, and discrimination. In conclusion, I note that Supreme Court signaled in Young that courts should take a more expansive view of types of evidence that can support a PDA claim, opening door to a broader approach to comparator question. INTRODUCTION In last two decades, United States has seen an explosion in pregnancy discrimination claims. The number of pregnancy-related charges filed with EEOC nearly doubled from 1992 to 2010,' even though number of antidiscrimination cases as a whole has declined every year since 1998. (2) Congress enacted PDA in 1978 to clarify that pregnancy discrimination constituted prohibited discrimination on basis of sex under Title VII. (3) Yet prevailing interpretation of PDA has made it difficult for plaintiffs to establish a successful claim. (4) Moreover, many pregnant workers could work later into their pregnancies if their employers made even simple accommodations--but these accommodations are not currently required by law. (5) Pregnant employees have lost their jobs for reasons directly related to their pregnancies. For example, pregnant workers have been fired for needing extra bathroom breaks (6) or to drink water on job, (7) and have been denied light duty assignments despite doctor-ordered heavy-lifting restrictions. (8) The difficulties facing pregnant women (9) on job have increasingly gained attention of EEOC, (10) media, (11) legal scholars, (12) advocacy organizations, (13) and, most recently, Supreme Court of United States. (14) On March 25, 2015, Supreme Court clarified meaning of PDA in Young v. United Parcel Service, (15) handing pregnant workers both a victory and a challenge. Young was a victory for pregnant employees because it announced an interpretation of PDA that has potential to reinvigorate Act's protections. It presented a challenge, however, because it reinforced primacy of McDonnell Douglas burden-shifting framework as method for proving most pregnancy discrimination claims. (16) Historically, pregnancy discrimination plaintiffs have found it difficult to prove their cases under McDonnell Douglas because success through that framework almost always depends on ability to identify a comparator--a similarly situated non-pregnant worker who was treated better. (17) Workers seeking accommodations for temporary impairments that can arise out of pregnancy have been hard-pressed to find comparators because law has not required employers to provide accommodations to workers with temporary, non-pregnancy-related impairments, either, especially when source of impairment is unrelated to worker's job. …

Pregnancy Discrimination in the National Courts: Is There a Common EU Framework?

As a case study this article compares how German and Dutch courts integrate the European equality framework within their national systems using pregnancy discrimination in the field of employment law. In the European Union (EU), the principle of non-discrimination is well developed and prohibits vertical as well as horizontal discrimination in order to foster substantive equality. Today, it is one of the key elements of the EU human rights policy and covers a wide range of protected grounds. As a result, national courts cannot ignore the EU equality framework. However, the reception of EU non-discrimination law still depends on the national legal and cultural background and, in particular, the response of the national courts to the European challenge to readdress national understandings of equality, which often focus on vertical relationships alone. This article evaluates how and to what extent the EU non-discrimination law framework has impacted on national approaches to pregnancy discrimination. It highlights the differences between two Member States and national influences on the application of the EU rules but also demonstrates the EU influence, which can promote the development of a coherent equality framework, though it may also hinder such a development.

Crumbs of Comfort: Pregnancy and the Status of ‘Worker’ under EU Law’s Free Movement Provisions

In Jessy Saint Prix v Secretary of State for Work and Pensions, the Court of Justice of the EU (CJEU) has ruled that an EU migrant who gives up work or seeking work because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth can retain the status of 'worker'. In order to do so, she must return to work or find another job within a reasonable period after the birth of her child. In determining whether the period that has elapsed between childbirth and starting work again might be regarded as 'reasonable', national courts should take account of all of the specific circumstances of the case as well as national rules on the duration of maternity leave. The case, which was referred to the CJEU by the UK's Supreme Court, raises a number of important issues concerning EU worker status, equal treatment between men and women and protection against pregnancy discrimination under EU law against the backdrop of the rise of precarious work. Furthermore, its origin as a UK case is of particular interest due to the coalition government's welfare reforms and recent statements regarding plans to curb EU migration and to further restrict welfare benefits to EU migrants.

Teen Pregnancy in Charter Schools: Pregnancy Discrimination Challenges Under the Equal Protection Clause and Title IX

Until three years ago, a policy at Delhi Charter School in Louisiana required that any pregnant student be effectively expelled. A pregnant sixteen-year-old student’s expulsion caught the attention of national media in 2012. The ACLU sued and the school quickly rescinded the policy. Although the policy was revoked, the un-adjudicated nature of the resolution leaves teen girls at the school and nationwide without any final court order to protect them against the (re)enactment of similar discriminatory policies. This Article analyzes the Delhi Charter School policy in order to make three related arguments. First, the Court should adopt a rebuttable presumption of state action when the plaintiff is a charter school student alleging the deprivation of a fundamental right. Second, any pregnancy expulsion policy enforced by a charter school violates both the Equal Protection doctrine and Title IX. The Equal Protection claim rests on the remedy left available under Geduldig v. Aiello, which otherwise crippled women’s access to remedies against pregnancy discrimination: if a facially neutral policy evidences discrimination, that policy is unconstitutional under the Equal Protection Clause. Due to the complete lack of rational justification for these policies, this Article argues that all pregnancy expulsion policies de facto evidence invidious discrimination. Third, while Title IX provides another source of remedies, it will not provide meaningful remedies without reform to its implementation. This Article concludes with suggested Title IX reforms.

Choice at Work: Young v. United States Parcel Service, Pregnancy Discrimination, and Reproductive Liberty

In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights. A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions. The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.

Ed Law

Regarding teen pregnancy and schools, the law makes it simple: Educators must treat soon-to-be moms and dads or school-aged parents the same as other students. Most prominently, Title IX of the Education Amendments of 1972 forbids pregnancy discrimination. While most people associate Title IX with sports equity, the law is much broader. It prohibits public schools and colleges from treating female students differently based on sex. Pregnancy falls naturally within its protections.

'Ability' Means Ability: An Ability-Centric Interpretation that Reinvigorates the Pregnancy Discrimination Act's Protections for Pregnant Workers

Congress enacted the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), to protect pregnant workers’ rights in the workplace, but the Act has been all but abandoned by legal scholars and courts. The prevailing Circuit Court majority rule interprets the Pregnancy Discrimination Act as merely extending Title VII to encompass pregnant workers. With the exception of prohibiting overt pregnancy discrimination, this majority rule as been entirely inadequate in preventing employers from instituting employment accommodation rules unfavorable to pregnant workers. As the rule stands, pregnant workers lack many protections necessary to accomplish the Pregnancy Discrimination Act’s goals, including equal treatment and inclusion in the workforce. As a result, most scholars have abandoned the Pregnancy Discrimination Act and instead encourage new and creative congressional action to address this pregnancy protection dearth. However, this Article explains that there remains untapped potential in the Pregnancy Discrimination Act as it is currently written. This Article proposes that scholars and courts reconsider the Pregnancy Discrimination Act in light of the legal framework in McDonnell Douglas v. Green, 411 U.S. 792 800-02 (1973), which courts apply when evaluating pregnancy discrimination claims for disparate treatment. By interpreting the Pregnancy Discrimination Act’s meaning with regard to the McDonnell Douglas legal framework, this Article demonstrates that pregnant workers are entitled to extensive employment protections beyond those already in place. In particular, the Pregnancy Discrimination Act, when properly applied, actually prohibits employment policies that exclude pregnant workers from otherwise available workplace accommodations simply because pregnancy is not an on-the-job condition. Accordingly, this Article demonstrates that employment policy accommodations that distinguish between occupational and non-occupational conditions violate the Pregnancy Discrimination Act when applied disadvantageously to pregnant workers.

DOL: Proposed Rule on Increasing the Minimum Wage for Federal Contracts; Joint Ministerial Declaration Regarding Migrant Workers • EEOC: Public Input Sought on Regulations Requiring Federal Agencies to Be “Model Employers” of Individuals with Disabilities; Updated Enforcement Guidance on Pregnancy Discrimination; Regulatory Initiatives Announced • NLRB: Briefs Invited on Key Legal Issues; General Counsel Affirms Use of Temporary Injunctions to

Employment Relations TodayVolume 41, Issue 3 p. 53-59 Federal Regulations Update DOL: Proposed Rule on Increasing the Minimum Wage for Federal Contracts; Joint Ministerial Declaration Regarding Migrant Workers • EEOC: Public Input Sought on Regulations Requiring Federal Agencies to Be “Model Employers” of Individuals with Disabilities; Updated Enforcement Guidance on Pregnancy Discrimination; Regulatory Initiatives Announced • NLRB: Briefs Invited on Key Legal Issues; General Counsel Affirms Use of Temporary Injunctions to Stop Unfair Labor Practices • OSHA: Final Rule on Electric Power Generation, Transmission, and Distribution; Interim Final Rule for Consumer Financial Protection Act; Alliance with American Staffing Association to Protect Temporary Workers • OWCP: Final Rule on Digital Radiographs Gia F. Colunga, Gia F. Colunga Freeborn & Peters LLPSearch for more papers by this authorRachel E. A. Atterberry, Rachel E. A. Atterberry Freeborn & Peters LLPSearch for more papers by this author Gia F. Colunga, Gia F. Colunga Freeborn & Peters LLPSearch for more papers by this authorRachel E. A. Atterberry, Rachel E. A. Atterberry Freeborn & Peters LLPSearch for more papers by this author First published: 24 October 2014 https://doi.org/10.1002/ert.21465Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Volume41, Issue3Fall 2014Pages 53-59 RelatedInformation

Accommodations under the Pregnancy Discrimination Act

Accommodations under the Pregnancy Discrimination Act

The German and Dutch Courtss Application of EU Non-Discrimination Law: Is There a Common Framework?

This paper compares how German and Dutch courts integrate the European equality framework within their national systems. Within the EU, the principle of non-discrimination is well developed and prohibits vertical as well as horizontal discrimination in order to foster substantive equality. Today, it is one of the key elements of the EU human rights policy and covers a wide range of protected grounds. As a result, national courts cannot ignore the EU equality framework. However, the reception of EU non-discrimination law on the national level and, in particular, the national courts’ response to the European challenge to re-address national equality concepts, which often focus on vertical relationships alone, still depends on the national legal and cultural background. This paper evaluates how and to what extent the EU non-discrimination law framework had an impact on the national approaches towards equality, using pregnancy discrimination as the example. As such, it highlights the differences between the Member States and national influences on the application of EU law, but also demonstrates the EU influence – which can promote but also hinder the development of a coherent equality framework.

Relational Power, Legitimation, and Pregnancy Discrimination

Pregnancy-based employment discrimination has long been a topic of interest for gender inequality scholars and civil rights agencies. Prior work suggests that employer stereotypes and financial interests leave pregnant women vulnerable to being fired. We still know little, however, about women’s interpretations of their terminations and how employers justify such decisions in the face of arguably protective laws. This article provides much needed, in-depth analyses of such dynamics and a relational account of pregnancy-based employment discrimination claims. Elaborating on theoretical expositions of power and research surrounding the patriarchal character of organizational life, we draw on unique quantitative and qualitative data from verified cases of pregnancy-based firing discrimination. Our analyses reveal a two-pronged legitimation process where employers symbolically vilified pregnant workers while simultaneously amplifying ostensibly meritocratic organizational procedures and concerns. Pregnancy discrimination plaintiffs attempted to counter employer arguments. Yet, their limited power within the organizational hierarchy along with the culturally resonant nature of employer logics—logics that seem gender-neutral but that reify gendered assumptions and prioritize business profit—place pregnant women at a considerable disadvantage. Without attending to such cultural and structural power imbalances and the relational processes that undergird them, pregnancy discrimination will remain a significant problem.

The Fourth Trimester

This Article introduces a new conceptual framework to the legal literature on pregnancy and pregnancy discrimination: the fourth trimester. The concept of a fourth trimester, drawn from maternal nursing and midwifery, refers to the crucial three to six month period after birth when many of the physical, psychological, emotional, and social effects of pregnancy continue. Giving this concept legal relevance extends the scope of pregnancy beyond the narrow period defined by conception, gestation, and birth and acknowledges that pregnancy is a relational process, not an individual event. In the United States, however, antidiscrimination law has failed to acknowledge the demands of the fourth trimester; it operates from the presumption that pregnancy begins at conception and ends at birth. Without employing a fourth trimester framework, the current federal antidiscrimination regime will continue to permit pregnancy discrimination against women because employers can discriminate on the basis of activities that typify the fourth trimester of the pregnancy. Judges, administrative actors, movement lawyers, and other policy makers should recognize that the law should prohibit discrimination on the basis of fourth trimester activities like breastfeeding, caring for newborn infants, or recovery. As a matter of law and policy, discrimination arising from these activities during the fourth trimester should be regarded as pregnancy discrimination.

Pregnancy Discrimination in the European Union Law Its Legal Character and the Scope of Pregnant Women Protection

Protection of women in relation to pregnancy and maternity is generally regulated in the Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding. However, pregnancy discrimination has been the subject of numerous rulings issued by the Court of Justice of the European Union. On the basis of this case-law several questions can be asked. Most of them concern the legal character of pregnancy discrimination and the scope of pregnant women protection.Therefore, the first part of the article will focus on the problem of relations between pregnancy and sex discrimination. It will also consider if pregnancy discrimination should be based on comparison. The second part of the contribution will concentrate on the question if pregnancy discrimination is direct or indirect one or maybe we should refer to a special protection approach. Finally, the scope of pregnant women protection will be presented. The article will try to answer the question if further actions are necessary to tackle pregnancy discrimination, including the adoption of new regulations by the European Union or the change of the Court of Justice’s position. DOI: 10.5901/mjss.2013.v4n9p441

Women, work and industrial relations in Australia in 2012

The year 2012 saw a number of initiatives and debates around measures that directly and indirectly affect women’s working conditions. This article first considers the extent of women’s workforce participation, an issue that has informed both policy debates and legislative changes over the last year. It then briefly assesses the potential of the Fair Work Act Review and the ongoing Modern Awards Review to improve women’s working conditions, before turning to action on a number of fronts. Pregnancy discrimination and sexual harassment have remained a constant in Australian anti-discrimination jurisdictions for many years. However, in 2012, there was also strong enforcement action by the Fair Work Ombudsman in cases of pregnancy discrimination, a new sexual harassment prevalence survey and the second phase of the Treatment of Women in Defence Review. Apart from the Social and Community Sector equal pay case, finalised in February 2012. Action ‘outside’ formal equal pay provisions also saw potential gains for the predominantly female and low-paid workforces in aged care and childcare.

Pregnant Men: Repronormativity, Critical Trans Theory and the Re(conceive)ing of Sex and Pregnancy in Law

This article argues that a critical re(conceive)ing of sex and pregnancy is required in law. Drawing on the dual meaning of conceive – ‘to become pregnant’ and ‘to imagine, or form a mental representation of’, the goal of this article is to better ensure that pregnant men and trans individuals are not denied their reproductive rights, the legal recognition of their gender identities, and the protections of pregnancy discrimination law. Here, I survey molecular biologists’ and critical trans theorists’ scientific and discursive challenges to the understanding of sex as biologically determined; I map the extent to which biological and repronormative discourses – those which materialize and maternalize female identity – underpin legal determinations of trans subjects’ sex and their ability to access state issued documentation; finally, I suggest that feminists’ efforts to construct pregnancy discrimination as sex discrimination may unwittingly factor into discriminatory practice against pregnant men by reifying pregnancy as necessarily female and thus pregnant men as ‘really’ women. Drawing on Darren Rosenblum’s call to unsex parenting, I conclude by briefly considering the opportunities presented by unsexing pregnancy in law.

So You Want to Have a Second Child? Second Child Bias and the Justification Suppression Model of Prejudice in Family Responsibilities Discrimination

Traditionally, advocates for women discriminated against in the workplace have asserted legal claims based on theories of sex discrimination, namely that such employment discrimination was occurring to women because they were women. In the past decade, however, a new theory of employment discrimination against women who are mothers has emerged. The umbrella term “Family Responsibilities Discrimination” encompasses the wide array of ways in which employers discriminate against caregivers in the workplace. These theories assert that such discrimination is occurring not just because these employees are women but because they are mothers. While still framed as “sex discrimination,” claims asserted under the umbrella of Family Responsibilities Discrimination argue that such discrimination is based on impermissible gender stereotypes concerning the culturally-assigned role of “mother.” This Article asserts that a discrete form of Family Responsibilities Discrimination is emerging in the workplace. This discrimination is called the “Second Child Bias” and results from a new stereotype, which I call the “Second Child Stereotype.” The Article explains that, while no court has expressly recognized employment discrimination based on the Second Child Bias, such a claim is on solid doctrinal footing based on prior precedent construing Title VII, the Pregnancy Discrimination Act, the Americans with Disabilities Act, the Family Medical Leave Act, and various state and local laws. The Article then posits that the cause of the Second Child Bias is a psychological phenomenon known as the Justification Suppression Model of Prejudice. The Article concludes that it is both legally and normatively important to recognize and name the Second Child Bias as a discrete and unique sub-set of Family Responsibilities Discrimination. The naming of the Second Child Bias, and the underlying Second Child Stereotype, will advance the larger goals of Family Responsibilities Discrimination litigation and scholarship: Making factually and legally cognizable what presently are merely normative claims of working mothers with two children and ending employment discrimination against them. The Article advances these goals by adding to the continuing discussion about the force with which federal and state anti-discrimination laws should push back the cultural expectations that create categorical gender and caregiving roles for men and women.