The Constitutionality of Pregnancy Discrimination: The Lingering Effects of Geduldig and Suggestions for Forcing its Reversal

Introduction

In the 1974 opinion of Geduldig v. Aiello, the Supreme Court ruled that discrimination on the basis of pregnancy is not, under the equal protection clause of the Fourteenth Amendment, discrimination on the basis of sex. In upholding a California state disability insurance program which denied benefits for pregnancy-related needs, the Court reasoned that the program did not treat women differently from men. Instead, the program differentiated between the categories of pregnant and non-pregnant people.

The public and legal community reacted to this decision with anger and skepticism. Yet the immediate impact of Geduldig was blunted as the lower federal courts quickly began to limit the ruling’s implications by distinguishing cases arising under Title VII of the Civil Rights Act of 1964. These courts refused to apply the logic of Geduldig to cases in the employment context, reasoning that Geduldig applied only to constitutional cases brought under the equal protection clause. However, just two years later, in General Electric Co. v. Gilbert, the Supreme Court closed this escape hatch by extending Geduldig‘s reasoning to Title VII.  This time, the public was furious.

Congress quickly overruled the Gilbert decision with the Pregnancy Discrimination Act of 1978 (PDA). This law amended Title VII to make explicitly clear that, under the statute, pregnancy discrimination constitutes sex discrimination. In Newport News Shipbuilding & Dry Dock Co. v.EEOC, the Court acknowledged that Congress overruled Gilbert by passing the PDA and held that an employer could no longer deny insurance coverage for pregnancy if it provides employees with an otherwise comprehensive health insurance plan.

Despite the far-reaching effects of the PDA in the employment context, the rule of Geduldig still applies to all situations not covered by Title VII. This anomalous doctrine not only has practical detrimental implications in a variety of legal settings, but it also creates a conceptual barrier to the development of a more progressive feminist approach in the Supreme Court’s jurisprudence. Over the years, many commentators have called on the Court to overrule Geduldig. Despite its unpopularity, the decision has persisted.

Although discussion of this issue may have subsided somewhat in the last decade, now would be a good time to reopen the challenge. Current circumstances-including the addition of women’s rights crusader Justice Ruth Bader Ginsburg to the Supreme Court, the continued attempts by state and lower federal courts to avoid the Geduldig doctrine, and the development of law in related areas that could isolate the doctrine may make it possible for the Court to revisit the decision.

This article explores approaches that advocates could use to persuade the Court to overrule Geduldig. Part I begins by investigating the current effects of Geduldig‘s continued existence-first, its concrete implications and, second, the broader doctrinal difficulties it poses. Part I concludes by addressing the propriety of openly attempting to force this already-resolved issue before the Court, rather than confronting it in another forum, such as Congress, the states, or a constitutional amendment effort.

Part II analyzes other Supreme Court decisions. It looks at some open doors and internal inconsistencies in the Court’s opinions which might enable the Court either to reconsider Gedulidig or to narrow substantially the decision’s implications. It also provides a brief analysis of how the current Justices on the Court might respond to such a challenge. Part III considers state court opinions which have circumvented or weakened the Geduldig doctrine and suggests how these decisions might be broadened or persuasively presented to the Supreme Court.

Finally, Part IV briefly examines a variety of areas which raise similar conceptual issues to the problem in Geduldig and evaluates the potential usefulness of each issue in challenging Geduldig. The section then provides a fuller discussion of how current challenges to last year’s federal welfare law and various states’ responses to that law might be used to attack the Geduldig holding. The paper concludes with some brief thoughts about how advocates who are interested in pursuing the goal of overruling Geduldig might consolidate their efforts into a plan for action.

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