WSJ Attacks Efforts To Fix Conservative Case Law That Allows Discrimination Against Pregnant Women

The Wall Street Journal took a stand against fair treatment for pregnant workers, complaining that the Equal Employment Opportunity Commission's (EEOC) new guidelines designed to fight pregnancy discrimination despite conservative Supreme Court opinions holding discrimination against pregnant women is not sex discrimination was a “radical” reading of federal law.

Last week, the EEOC issued new guidelines to employers in an effort to curb increasing incidents of pregnancy discrimination in the workplace -- the first time in 30 years the agency had updated its guidelines regarding fair treatment of pregnant employees. One of these new guidelines interpreted the Americans with Disabilities Act (ADA) to include reasonable accommodations for “pregnancy-related impairments,” which can include serious ailments like anemia, gestational diabetes, and abnormal heart rhythms, among others.

But in a July 27 editorial, the Journal argued that protections provided by the ADA should be reserved only for the “truly disabled,” not women who are disabled due to medical conditions caused by their pregnancies. The editorial also ignored the reality of pregnancy discrimination in the workplace, and claimed that the EEOC's comprehensive new guidance was a “radical legal interpretation” of the ADA that served no purpose other than to provide a “launching pad for trial lawyers.” It went on to argue that the guidance was unnecessary given the fact that “pregnancy is not unprotected under federal law,” without mentioning that these protections were a direct response to conservative case law that refused to treat pregnancy as a sex-based classification under federal law:

Even after the 2008 amendments, the ADA at no point defines pregnancy as a “disability.” To end-run this fact, the agency discovers pregnancy's “impairments.” The EEOC's guidelines argue, “Although pregnancy itself is not a disability, impairments related to pregnancy can be disabilities if they substantially limit one or more major life activities.” Morning sickness, for example, would become a qualifying impairment under the ADA.

Thus the EEOC is piling one radical legal interpretation (discarding the ADA's clear intent to help the truly disabled) upon another (granting protections to pregnant women, who aren't covered under the ADA).


Pregnancy is not unprotected under federal law. The 1964 Civil Rights Act protects workers from discrimination on the basis of “race, color, religion, sex, or national origin.” And the 1978 Pregnancy Discrimination Act amended that law to protect, yes, pregnant women.

Anyone who reads the text of the EEOC guidance can see the rationale behind yet another display of Obama executive-branch muscle. The rules' imprecision is a launching pad for trial lawyers, a primary source of grateful Democratic campaign money. And Valerie Jarrett's CNN piece makes clear the initiative is another politicized front in the “war on women.”

Ms. Jarrett says the guidelines will help employers “understand their obligations.” With the most important being to hire more lawyers and fewer employees, of any sex.

The Journal ignores the fact that the Pregnancy Discrimination Act was signed into law by President Jimmy Carter expressly to overturn a pair of conservative Supreme Court decisions that held that neither the equal protection clause nor Title VII of the Civil Rights Act of 1964 prohibited employers from excluding pregnant women from certain workplace benefits.  According to the Court, employers who denied disability benefits to pregnant workers was not a form of sex-based discrimination -- despite the fact that only women had been excluded. In one of those cases, then-Justice William Rehnquist wrote that “it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer's disability-benefits plan is less than all-inclusive.” The Court came to this conclusion even though it acknowledged that “pregnancy-related disabilities constitute an additional risk, unique to women.”

Congress ultimately passed the PDA to nullify this counterintuitive Supreme Court ruling in regards to employment law under Title VII -- but that alone has not provided sufficient protection from pregnancy discrimination, as the Journal suggests. Because these constitutional cases remain on the books, their bizarre holdings that pregnancy discrimination is not sex discrimination has led to narrow interpretations of the PDA that do in fact leave pregnant workers “unprotected under federal law.”

As explained by law professor Joanna Grossman, the EEOC's new guidance was still necessary because “pregnancy discrimination in the workplace is an intractable problem, one that has resulted in a startling number of claims each year” being filed. The EEOC's guidelines themselves note that “in the years since the PDA was enacted, charges alleging pregnancy discrimination have increased substantially” and that “in 2008, a study by the National Partnership for Women & Families found that pregnancy discrimination complaints have risen at a faster rate than the steady influx of women into the workplace.” That same study also found that claims of pregnancy discrimination have increased significantly among women of color, whose claims have increased by 76 percent between 1996 and 2005, while overall discrimination claims increased by 25 percent. 

Yet the Journal is satisfied with federal law as-is, regardless of its inability to fix the damage of the Supreme Court's previous refusal to recognize pregnancy discrimination as a form of sex discrimination. Apparently, not even concern for the unequal treatment of pregnant workers comes in between the WSJ and its hatred of trial lawyers.

Photo via Flickr/Jesica_8 under a Creative Commons License.