Lise Vogel. Feminist Studies. Volume 16, Issue 1. Spring 1990.
In January 1987, the U.S. Supreme Court ruled on a case that posed the question of whether it is possible to reconcile equality norms with policies treating pregnant workers differently from other workers. The case involved a bank receptionist, Lillian Garland, who sought to return to her job under a California statute requiring employers to provide unpaid job-protected disability leaves to their pregnant employees. When the Supreme Court upheld the legitimacy of the California law, its decision was widely welcomed as a victory for working women.
The meaning of the Lillian Garland case was, however, complex. Feminist attorneys were divided on the case and on the merits and dangers of providing special benefits to pregnant workers. Although the debate at times appeared technical and obscure to nonlawyers, it raised questions analogous to those already emerging in other policy arenas about the limits of equality, the meaning of difference, and the direction of feminist strategy.
Underlying the debate over pregnancy policy was the theoretical question of how to construe sexual difference. For the lawyers, the question initially turned on the nature of pregnancy. Is pregnancy a temporary disability? Is it a unique condition which for the practical purpose of enhancing equal employment opportunity can be analogized to other conditions? Or is pregnancy so special that such analogies demean women and actually impede equal employment opportunity? Implicitly or explicitly, the lawyers found themselves confronting basic problems of feminist theory and long-term goals. As feminists, is our objective simply the dismantling of barriers to equal participation in social life? Do we want to push beyond assimilation, which effectively leaves male norms in place, toward a balanced androgyny in a social structure transformed to symmetrically meet women’s and men’s needs? Or should we frankly recognize woman’s special and different nature through the development of woman-centered analysis and a rich women’s culture? Is it reasonable to focus just on sexual specificity in a world torn apart by class, race, national, and other differences? What if a person’s identity is not fixed but, rather, fluctuates—drawing variously on multiple sources, only one of which is gender? Perhaps we should view feminist goals as more transcendent—pointing beyond equality and difference, and past all dichotomies, to a future community of marvelously diverse persons, simultaneously united and autonomous.
The concerns of the participants in the debate over special treatment of pregnancy in the workplace thus converge with those of recent feminist theory, for pregnancy poses the dilemma of difference in an especially sharp and poignant form. In this article I will outline the controversy over special treatment of pregnancy, briefly explore how feminist legal scholarship conceptualized it, and suggest some broader implications. My purpose is to move beyond the polarization that characterized the debate without losing sight of the larger political context.
Pregnancy and Equality
Lillian Garland had been employed as a receptionist in a Los Angeles branch of the California Federal Savings and Loan Association (Cal Fed). Her difficult first pregnancy and delivery necessitated several months’ disability leave in early 1982, and she expected her position to be protected by a California law mandating that employers grant workers temporarily disabled by pregnancy up to four months of unpaid leave with job security. When she attempted to return to work at the end of the leave, however, Cal Fed claimed no receptionist or similar positions were available. Garland then sought her rights under the state statute. In response, Cal Fed, joined by the California Chamber of Commerce and the Merchants and Manufacturers Association, initiated a suit to invalidate the state law, arguing that it was preempted by the federal Pregnancy Discrimination Act (PDA). At issue was the conflict between the state lawns requirement that pregnant employees be treated in a special manner and the federal law’s mandate that they be treated the same as other workers. Cal Fed did not provide job-protected leaves to employees temporarily disabled by conditions other than pregnancy, and it wished to treat its pregnant employees in the same niggardly way. The Supreme Court determined, however, that California’s disability leave statute was not in conflict with the federal PDA. That is, the Court ruled that special treatment of pregnancy in the workplace does not necessarily contradict the imperatives of equality.
The Supreme Court ruling meant that Garland did indeed have the right to reclaim her job. In this sense, the decision was an unambiguous victory. The question feminist lawyers had been debating was not whether Garland should have her job back but how best to achieve this outcome. To understand the controversy sparked in the feminist legal community by the California case, the litigation must be examined in the context of U.S. maternity and parenting policy.
It is always a shock to find out just how little substantive support for pregnancy and parenting is available in the United States. Despite an entrenched public ideology venerating motherhood and family, the level of tangible benefits and rights supporting parenting in the United States is sharply below world standards. Most industrialized countries, as well as many developing nations, provide comprehensive benefits to eligible workers for childbirth and childrearing. Medical costs are covered, and paid job- and benefit-protected leaves for maternity and parenting are the norm. In Europe, for example, maternity leave ranges from twelve weeks to twelve months and is paid at 80 to 100 percent of the maximum insured wage. Leaves can be extended should pregnancy or delivery prove difficult. Some countries provide additional leave to single mothers, for second and subsequent children, or for multiple births. Many permit mothers (or parents) to take more time, with the additional leave paid at a lower rate or simply job protected. Benefits in Canada, while less generous than those in Europe, are light years ahead of those available on this side of the border—approximately seventeen weeks’ leave at 60 percent pay, usually with job, pension, and seniority preserved. The United States is thus unique in the stinginess of its support for maternity and parenting.
Current maternity policies in the United States have evolved out of a history quite different from that shaping developments elsewhere. In the early twentieth century, when European countries were developing extensive social insurance programs coupled with comprehensive labor legislation, the United States trailed far behind. Its relatively weak set of substantive maternity supports were mainly instituted through state legislation affecting the employment of women and children but not men. Protective laws limited women’s hours of work, regulated their working conditions, and prohibited female labor in certain “dangerous” occupations. Many women workers benefited from such laws, but others were not covered at all, and some found themselves excluded from jobs they wanted.
Over time, special treatment for women through protective legislation not only reinforced sex segregation in the labor market, but it also increasingly became the basis for policies and practices that harmed women workers. In the name of protection, special—but often unfavorable—treatment of pregnant workers thus became a norm that was still in place in the early 1970s. Employers could and did fire workers because of pregnancy; they could also refuse to hire a female applicant on the basis of her pregnancy. Maternity leaves could be required regardless of the employee’s desire to work; many employers forced pregnant workers to stop working three to six months after conception. Health insurance policies often excluded from coverage normal and cesarean deliveries, or even childbirth altogether. When covered, pregnancy-related expenses were usually reimbursed at a much lower rate than other medical costs. Employers (or states) could not only force a woman onto maternity leave, they could also determine the point at which she was permitted to return; a new mother ready to go back to work might have to wait. While waiting, she had little chance for any income replacement because most states explicitly excluded pregnant women and those recovering from childbirth from eligibility for disability or unemployment benefits. Maternity leaves generally had to be taken without income replacement, extension of benefits, retention of seniority, or rights to reinstatement. Where employees enjoyed relatively good maternity benefits—the minority of cases—these were usually the product of either collective bargaining or employer goodwill, the latter not necessarily extended to all female employees. For example, some employers provided benefits only if the employee was married.
Feminist legal strategies in the 1960s and 1970s focused on eliminating discrimination against women. Given the ambiguous legacy of protectionist policy in the United States and the burgeoning activity on the civil rights front, it made sense to address the needs of women as a question of rights and equality rather than as protective legislation. Feminist equality strategy sought to make sex-based generalizations generally impermissible and to delegitimate the use of sex as a proxy for specific traits, functions, or behaviors. In the area of employment, the approach was to replace sex-based classifications with distinctions based on function. Instead of designating a job as male, for example, an employer would have to develop job-related criteria, such as strength or height. Characteristics specific to one sex—for example, pregnancy—could, for certain purposes, be viewed as comparable to other characteristics; by establishing comparability in the workplace, unfavorable treatment based on sex-specific characteristics could be identified as discriminatory, hence impermissible.
The campaign to bring pregnancy within the scope of equality norms was thus part of a larger effort, and by the late 1970s it had produced substantial results. Employers and courts began to establish a record of treating pregnant workers as comparable to other workers whose ability to work was similarly affected. Practices that had seemed normal only a decade earlier were redefined as discriminatory and unacceptable. Job security and benefits for pregnant workers, especially in the areas of health, disability, and unemployment insurance, improved. In effect, an implicit national maternity policy was being shaped. Modest and, indeed, peculiar by European standards, it did not center on specific substantive benefits for pregnant workers, nor did it define its goals in terms of social welfare. Instead, its touchstone was an anti-discrimination principle: pregnancy could not be the basis for unequal treatment of a woman worker.
Consistent with this legal framework, Congress enacted the Pregnancy Discrimination Act in 1978. The PDA was designed to nullify several Supreme Court decisions that used pregnancy as a basis to deny women benefits and seemed to be trying to turn back the clock on equality. In these rulings, the Court had insisted that pregnancy is not comparable to other conditions. Rather, said the justices, pregnancy is a unique “additional risk”—an extra burden that can properly be treated in a special and unfavorable manner. The Court found that General Electric, for example, was not discriminating against women when it excluded pregnancy from its disability coverage. Outraged, a coalition of feminist, labor, civil rights, church, and even antiabortion groups mobilized to support the passage of the PDA.
The PDA extends the 1964 Civil Rights Act to cover discrimination on the basis of pregnancy and .specifically mandates that employers treat pregnant workers the same as other workers who are comparably able or unable to work. To comply with the PDA, employers must generally make decisions about pregnant workers based on their capacity to work, just as such decisions would be made about other employees. If able to work, a pregnant worker cannot be fired or forced to take a leave of absence. If not able to work, she must be treated no differently than other workers similar in their inability to work. An employer who ordinarily permits workers temporarily disabled by illness to return to their old jobs, for instance, must provide the same option to workers temporarily disabled by pregnancy.
The PDA does not shape the substantive content of the pregnant worker’s rights and benefits. Rather, the treatment a pregnant worker might receive under the PDA largely depends on her employer’s particular policies. Unexpectedly, the federal act seemed to conflict with a handful of recently enacted state laws designed to provide benefits to pregnant women. By attempting to address the substantive needs of pregnant workers directly, these state laws departed from the strategic approach embodied in the PDA. Rather than follow an anti-discrimination principle requiring that pregnant workers be treated in a manner comparable to other workers, pregnancy disability laws provide special benefits for one group of persons with special needs. The contradiction between the two strategies led inevitably to the litigation which culminated in the Supreme Court’s Cal Fed decision.
The outcome of the litigation was of great importance to women workers. Employers were attempting to use the PDA to void state laws mandating the provision of benefits on the basis of pregnancy. If successful, their efforts threatened women with the loss of significant benefits. The equality framework that had seemed to be unequivocally on the side of women was revealing hidden ambiguities. At one level, the Cal Fed case pitted mean-spirited employers against pregnant workers needing job-protected disability leave. At another, it posed extremely difficult questions for feminist strategy and theory.
Feminist Legal Scholarship: Special versus Equal Treatment
Feminist lawyers across the country discussed the implications of the litigation with more than a little consternation. For over a decade, their attention had been focused on equality. Only a few years earlier, they had mobilized to circumvent backward-looking Supreme Court decisions through the passage of the PDA. The feminist legal community was ill-prepared for an assault on women in the very name of equality.
The issues were intensively debated at numerous meetings and conferences and split the feminist legal community. Participants conceptualized the problem as a choice between two approaches to pregnancy in the workplace: “special treatment” and “equal treatment.” Advocates of both positions supported Lillian Garland’s right to her leave. Unlike her employer, they agreed that California’s disability leave provision is not preempted by the federal PDA and that Cal Fed could and should comply with both statutes. Within this shared framework, they followed differing reasoning and suggested different remedies. Proponents of special treatment argued that the real sexual difference constituted by pregnancy made special treatment necessary to achieve real equality; if Cal Fed complied with California’s statute it would automatically meet the requirements of the PDA, because both laws were intended to promote equal employment opportunity. Advocates of equal treatment also argued that Cal Fed could comply with both statutes but only by making unpaid, job-protected leave available on a nondiscriminatory basis to all its temporarily disabled employees. From the special-treatment perspective, then, narrowly drawn laws providing benefits to pregnant workers to accommodate the specific physical burdens of pregnancy were consistent with the equality mandate of the PDA. From the equal-treatment perspective, however, consistency with the PDA required that the benefits provided by such laws be extended equally to all workers.
Distinct strategic, ideological, and theoretical views informed the contending positions. The debate focused on the state statute and the PDA, but it implicated deeper concerns about the meaning of difference and the nature of equality. As the California case proceeded through the courts, divisions hardened, and the controversy flowed beyond the boundaries of the feminist legal community. Feminists and progressives mobilized to represent plaintiffs, file amicus briefs, and participate in support coalitions. Most of the major organizations litigating women’s rights and developing policy for women—for example, the National Organization for Women, the American Civil Liberties Union, and the National Women’s Political Caucus—backed the equal-treatment position. Activists as well as organizations in the labor, health, gay, and women’s movements frequently sided with the special-treatment position. In California, strong support developed for the state’s defense of its pregnancy disability leave statute. Indeed, members of the Southern California ACLU endorsed an amicus brief in opposition to that written and submitted by the national organization.
Feminist legal scholarship articulated the competing positions. Two articles, one by Wendy Williams and the other by Linda J. Krieger and Patricia N. Cooney, were especially critical to the debate. In “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 1982, Williams pointed to increasing feminist concern about the meaning of equality. Having dealt with the “easy” cases, feminists now confront the “hard” ones, such as rape, military service, pregnancy, and maternity. These cases “touch the hidden nerves of our most profoundly embedded cultural values,” causing feminists to question their traditional equality strategy. Williams defended the equality framework as providing, even for the hard cases, both a practical approach and an adequate feminist vision of sexual difference.
In the hard case of pregnancy, for example, Williams maintained that women’s special needs can be addressed without creating a classification based on sexual difference, thus removing the pretext for disadvantageous special treatment. The very real physiological uniqueness of pregnancy creates burdens for women workers that can be acknowledged by analogy to other burdensome physiological conditions. Williams cautioned against advocacy of a pregnancy-based classification. New pregnancy laws cannot, she argued, be narrowly drawn to reflect only “real” biological differences; the history of protective legislation shows that an emphasis on the special nature of maternity, however well-intentioned, can provide a basis for unfavorable as well as favorable treatment. Already she observed, there was an ominous convergence between feminist support for special treatment of special needs and the Supreme Court’s damaging opinion that pregnancy is an extra burden. Feminists who seek special recognition for pregnancy through maternity legislation cannot guarantee that their interpretation of the special nature of motherhood will be adopted by the state. Only ten years had passed since the Supreme Court first acknowledged sex discrimination could be unconstitutional, she noted, and gains under the emerging norms of gender neutrality were still fragile. In sum, to endorse the doctrine of difference would put women at risk.
The equality approach, Williams argued, establishes a norm of gender-neutral treatment which employers must respect; such disadvantageous treatment as forced maternity leave or unequal medical benefits is prohibited. To the extent that pregnancy creates special physiological needs, women have access to the same provisions for medical coverage, sick leave, and temporary disability insurance their employers provide for other workers. Should women find themselves disadvantaged by an employer’s policy that appears to be neutral but disproportionately harms pregnant women, they can use adverse impact analysis to seek relief from the courts. A woman whose employer provides the same inadequate sick leave to all workers, for example, could argue that the policy differentially affects women and therefore constitutes discrimination under the PDA. In the long run, Williams wrote,
the solution is not state statutes specially aimed at pregnancy but statutes that require pregnancy-related disabilities to be treated like other disabilities, reasonable employer disability rules, and the provision, at the employee’s option, of some amount of leave time for rearing of the infant. The child-rearing leave would be available to either parent on a gender-neutral basis.
Williams also commented on the deeper implications of the special-treatment/equal-treatment dilemma. The special-treatment perspective, she suggested, projects a view of women that is essentially identical to the separate spheres ideology of the past, which assumed women and men to be by nature different and thus provided a basis for discrimination against women. By contrast, the equality approach exemplified by the PDA helps to dismantle the ideology of separate spheres. Feminists need to make a choice, she concluded: “Do we want equality of the sexes—or do we want justice for two kinds of human beings who are fundamentally different?” In a later article, Williams specified that “the equal treatment approach [seeks] to overcome the definition of the prototypical worker as male and to promote an integrated—and androgynous—prototype.” In Williams’s view, the special-treatment position collapses into endorsement of retrograde separate spheres ideology, but the equal-treatment perspective offers the more feminist vision of androgyny.
In 1983, Krieger and Cooney argued the opposing position, in defense of laws providing special benefits to pregnant workers. They maintained that women’s special role as childbearers creates obstacles to equal employment opportunity that men do not face. In the presence of real physiological sex differences, equal treatment can yield unequal results. In particular, an inadequate disability leave policy can amount to a policy of terminating pregnant workers. Given the extra burden of maternity, Krieger and Cooney suggested, women require extra benefits on a permanent basis if they are to achieve real equality. In making special provision for pregnancy, special-treatment legislation “places women on an equal footing with men and permits males and females to compete equally in the labor market.” That is, it enhances equal employment opportunity and is not in conflict with the PDA.
Krieger and Cooney claimed to have a broader and more feminist vision of sexual difference than equal-treatment proponents. They castigated the equal-treatment framework as thoroughly liberal and abstract—focused on form rather than results, denying the reality of difference, and implicitly adopting men as the norm. The relentless individualism of equal treatment may work relatively well for upper-middle-class women, they asserted, but it fails to meet the immediate needs of working-class and single mothers. The masses of women have not made significant progress on the sex-specific issues of pregnancy and abortion, they argued, yet feminist litigators persist in offering the courts only this narrow liberal view of equality. “It is incumbent upon feminists,” they concluded, “to provide a new, more humanistic vision for society, a new ideology of equality.”
Within the feminist legal community, the articles by Williams and by Krieger and Cooney set the terms of the increasingly bitter debate over special treatment versus equal treatment of pregnancy in the workplace. Subsequent exchanges refined and amplified the arguments, producing several versions of each position, but the parameters of discussion remained the same. Participants in the debate distinguished the immediate physical needs of childbearing from the demands of childrearing, and they all agreed that the needs of workers as childrearers can best be met through gender-neutral parenting programs and legislation. The dispute centered on childbearing. Although each side recognized that equal employment opportunity requires woman’s experience as childbearer to be acknowledged in the workplace, they differed on the means to be used. Those in favor of special treatment supported narrowly drawn pregnancy laws as a way to provide the extra help pregnant women need to achieve equal employment opportunity. Advocates of equal treatment opposed female-specific legislation, cautioning that special treatment in the law has traditionally translated into inferior treatment of the targeted group. They argued that a continued emphasis on equality analysis, which includes sensitivity to adverse impacts of seemingly neutral rules, is consistent with past gains and is the best way to meet the special needs created by pregnancy. Fundamental to the policy dispute, although only partially acknowledged in the debates, were divergent feminist views of sexual difference and women’s liberation.
Different but Not Unequal
When the Supreme Court ruled on the Cal Fed case in January 1987, its opinion did not settle the special-treatment/equal-treatment controversy. The decision established the legal viability of statutes providing benefits on the basis of pregnancy, but gender-neutral legal norms continue to govern in most other areas affecting women. Efforts to meet women’s needs as childbearers can therefore follow either the special-treatment or the equal-treatment strategy. Indeed, the flurry of confused legislative activity following the Cal Fed decision shows that state lawmakers seeking to enact pregnancy or parenting legislation are befuddled; they do not know which approach to adopt. One effect of the Supreme Court decision has been, then, to return the debate to the legislatures. Uncertainty about the relative merits of special and equal treatment of pregnant workers persists.
The debate over pregnancy policy must be recast in order to be resolved or, better, transcended. Polarized by the need to take a stand on the litigation, participants in the debate often stereotyped the two available positions. Only recently have some feminist scholars, within and without the legal profession, begun to question the terms of the debate itself. “Are we,” they ask, “doomed forever to oscillate between dualities—group vs. individual equality, assimilation vs. accommodation, `formal’ equality vs. `real’ equality? Or is there a way to move legal doctrine beyond these dualities to some richer synthesis?” More generally, can we develop a pregnancy policy within the framework of a politics that both cherishes difference and respects equality?
In order to go beyond the debate over special treatment of pregnancy, several issues must be disentangled. First, the actual impact of the PDA on women workers has been an object of dispute and needs to be evaluated. Second, the underpinnings and ideological implications of the various positions in the debate have to be examined more closely. And third, the debate should be placed in the context of the general problem of developing and evaluating feminist strategy. I consider these questions in the following sections. What emerges is a case in favor of a version of the gender-neutral approach to pregnancy policy.
The PDA and Women Workers
Participants in the debate over special treatment disagreed about the actual effect of the PDA on women workers. Those favoring special-treatment legislation argued that gender-neutral treatment disproportionately fails to meet the needs of working-class and poor women. Focusing mainly on benefit plans, they implied that the PDA has harmed rather than helped women. Its immediate practical effect has been, they suggested, at best, mixed—benefiting some women but harming many others, especially poor and working-class women, in the name of a purely formal equality. The attempt to deny pregnancy benefits to Lillian Garland, a black single mother caught in the low-wage ghetto of routine clerical work, seemed to epitomize this interpretation.
Evidence for the critique of the PDA has been largely anecdotal and impressionistic. An adequate evaluation of the statute’s practical impact requires more extensive data, weighing costs and benefits on several dimensions, over time and on a national scale. Although comprehensive studies have not yet been carried out, some data exist. Evidence from the insurance industry, for example, which provides employers with policies to cover employee benefits, can shed light on the PDA’s impact on disability and medical coverage. The insurance industry had vigorously opposed the passage of the PDA, arguing that costs would be high and that women malingerers would abuse the benefits the statute would provide. Its fears with respect to costs were confirmed by several studies based on insurance company data that find generally higher short-term disability costs due to payment of benefits mandated by the PDA. 30 A similar increase in costs has been documented in states with temporary disability laws that provide income replacement. A 1984 study of the health plans of twenty-one companies in Iowa, Missouri, and Indiana furnishes additional evidence. Before the PDA’s passage, medical benefits for pregnancy in all twenty-one firms were inferior to benefits for other conditions; four of the firms offered no coverage whatsoever for either normal or cesarean delivery. After implementation of the PDA, all the firms covered pregnancy and pregnancy-related conditions on the same basis as other conditions. Improved medical coverage and increased aggregate cash benefits suggest that on average the PDA has aided women monetarily, although no one knows just how many women have benefited nor who they are. The fact that monetary benefits have risen could suggest that the PDA especially benefits working-class women, generally more in need of cash and less able to sustain the unpaid leaves that “middle-class” women can sometimes afford.
Many women work for firms employing fewer than fifteen persons and are therefore not covered by the PDA. With jobs at the bottom of the employment scale and with minimal or no benefits, these are the low-income women for whom special pregnancy legislation at the state level should be especially helpful, according to special-treatment proponents. The actual experience of California is instructive. The guarantee of up to four months of job-protected pregnancy disability leave was one of nine provisions in a package passed by the California legislature in 1978. The statute was originally proposed as a gender-neutral prohibition on pregnancy-based discrimination, along the lines of the PDA, but it emerged from the legislative process in female-specific form. Of the nine provisions mandating special treatment of pregnant workers, two provide benefits but seven are more ambiguous, permitting employers to treat pregnancy unfavorably. For example, employers are required to provide pregnant workers with the unpaid, job-protected pregnancy disability leave that was at the center of the Cal Fed litigation, but unlike larger employers, they are allowed to exclude pregnancy from medical benefit plans. This mixed bag of benefits and exclusions is in effect for California firms with six to fourteen employees. If Lillian Garland had not worked for a big bank, she might have found herself with an unpaid disability leave but without medical coverage for her difficult and expensive pregnancy. All women need both medical coverage and adequate leave provisions, but again, I would argue that for working-class women the medical benefits are especially important. In California, then, the special-treatment approach resulted in statutes that treated pregnancy in contradictory and sometimes unfavorable ways.
More studies are necessary, but available evidence on the PDA’s immediate impact suggests that on balance it has resulted in improved pregnancy benefits for large numbers of working women. Any overall evaluation of the PDA’s impact must include, furthermore, its protection of all women’s access to work. Without the PDA, pregnant women’s rights to be hired, to enter training programs, and to continue working while pregnant would be threatened. In an economy in which women increasingly participate in the labor force, the issue of access to work is at least as important to poor and working-class women as it is to “middle-class” women. In terms of practical results, then, the gender-neutral approach to pregnancy cannot be evaluated as negatively as the special-treatment critics would claim.
The Meanings of Pregnancy
In addition to practical impact, the choice of a particular strategy carries with it ideological implications. For many of the participants in the special-treatment/equal-treatment debate, these implications have been at the core of the controversy over pregnancy legislation. Special-treatment proponents are repelled by what they see as the equal-treatment approach’s representation of pregnancy as a disability and its imposition of male norms on women. At issue in their critique are the meanings attributed to pregnancy and sexual difference. The PDA, in this view, is irreparably tainted by the identification it supposedly makes of pregnancy with disability. By treating pregnancy as a temporary disability, the PDA is said to stigmatize childbearing as a pathological departure from an implicitly male norm. As physician Wendy Chavkin puts it, “pregnancy … is not an illness. Rather, it is a unique condition, that may be accompanied by special needs, and sometimes by illness.” In sum, according to the critics, the gender-neutral approach to pregnancy devalues its special biological and social nature, attempts inappropriately to standardize women’s experience within male-defined medical and work norms, and represents pregnancy as, literally, an abnormal and unhealthy condition.
The image of pregnancy that special-treatment advocates seem to prefer focuses on woman’s uniqueness. We should not shrink, they argue, from endorsing difference.
In observing that [pregnancy and breastfeeding] are the capabilities which really differentiate women from men, it is crucial that we overcome any aversion to describing these functions as “unique.” Uniqueness is a “trap” only in terms of an analysis … which assumes that maleness is the norm. “Unique” does not mean uniquely handicapped.
There is, in this view, a profound and definitional character to the phenomenon of childbearing. It marks all women, constituting a strength and source of unity but also creating specific needs. Policies that positively acknowledge the uniqueness of childbearing, such as those in many European countries, need not be judged by an equality standard. Instead, they show that women’s special needs can be accommodated within a framework that emphasizes caring and responsibility.
The special-treatment representation of pregnancy and sexual difference is in many ways compelling. It emphasizes the inadequacy of traditional liberal views that deny sexual difference and seek individualistic assimilation to a single standard. It offers a vision of women and their special needs as not only unique but also profoundly important. It claims to be the best defense of the most needy women, as well as the foundation for the far more adequate maternity policies found in other countries. And it resonates with feminist aspirations to go beyond conventional formulations toward more radical solutions. For many feminists, these characteristics have proven irresistible.
Chief among the ideological accusations made against the gender-neutral framework are that its proponents endorse male norms and that they commit the sin of liberalism. Although the charges can validly be directed at some backers of equal treatment, others seek to transcend the liberalism of which they are accused. Nadine Taub and Wendy Williams, for example, are well aware that the traditional liberal framework tends to override difference and set up a male model as the norm. They point out that “the model is, of course, not only male but also white, able-bodied, English-speaking, and a member of a mainstream religion.” And they depict pregnancy as only one of many unique conditions that human beings have or develop—conditions that invariably involve special needs society ought to accommodate. Where special-treatment advocates insist on woman’s categorical difference and propose special policies to represent globally special female needs, Taub and Williams move toward an understanding of all persons as differentiated individuals, each with her or his own special needs. To meet these needs, the workplace must be transformed. “The vision is not … a workplace based on a male definition of employee, with special accommodation to women’s differences from men, but rather a redefinition of what a typical employee is that encompasses both sexes.”
Implicit in Taub and Williams’s comments is a significantly revised version of the gender-neutral approach to the pregnancy dilemma. Rather than categorize workers into two groups, female and male, this approach acknowledges that all employees have special needs—as expectant mothers; as parents; as aging, handicapped, or temporarily infirm workers; and so forth. It replaces, in other words, the fixed dichotomy of male versus female with attention to individual needs that is simultaneously sensitive to group-based hierarchy. This approach, then, rejects both the formal equality model of traditional liberalism and the special-treatment model proposed by some contemporary feminists. Neither individual assimilation to male norms nor group-based accommodation to categorically defined female needs provides an adequate framework.
In sum, gender neutrality has, like liberalism itself, a radical edge. Disentangled from the abstract individualism of its liberal origins, gender neutrality can support a view of difference that goes beyond the simplistic oppositions haunting the special-treatment/equal-treatment debate. Within such an expanded gender-neutral perspective, pregnancy and breastfeeding are no longer seen as abnormal conditions; neither are they viewed as immutably defining characteristics of sexual difference. Rather, childbearing is represented as one among many important categorical specificities that must be accommodated in a society transformed to equally meet the special needs of all.
Equality and Difference as Strategy
The debate over special treatment of pregnancy took place in a charged strategic context. Benefits of immediate usefulness to women were at risk, as was the categorization of women as a class within the U.S. legal framework. Questions of immediate impact and short-term strategy thus converged with problems of long-term feminist vision. Within the feminist legal community, one either supported the California statute as an adequate implementation of the special-treatment perspective or opposed it on the basis of some version of the equality approach. In the heated atmosphere of the developing litigation, too little attention was paid to evaluating the competing positions as strategies proposed for a particular time and place and equally fraught with dangers and contradictions. At most, feminist legal scholars sought to transcend the dichotomized opposition of difference to equality in abstract terms.
Some commentators have recently begun to conceptualize dilemmas concerning rights and equality as problems in the use of reforms to effect social change. Lawyer Elizabeth M. Schneider proposes, for example, that struggles using the discourse of rights and equality should be evaluated in terms of multiple criteria. “The assertion or ‘experience’ of rights can express political vision, affirm a group’s humanity, contribute to an individual’s development as a whole person, and assist in the collective political development of a social or political movement.” Instead of dismissing rights claims as irredeemably shaped by their liberal origins, litigators can both acknowledge the limits of equality discourse and use it to move the struggle forward. Schneider offers the feminist demands for equality and reproductive rights as examples of the transformative potential of reform struggles centered on rights claims. “By concretizing an abstract idea and situating it within women’s experience, these rights claims did not simply ‘occupy’ an existing right, but rather modified and transformed the nature of the right.” Legal scholar Patricia J. Williams similarly underscores the consciousness-raising and empowering aspects of rights discourse. Focusing on African-Americans, she argues compellingly that subordinate groups experience the assertion of rights differently from dominant groups. For blacks, she shows, rights discourse can be “deliciously empowering,” and the struggle for equal rights is not a “dry process of reification … [but] the resurrection of life from 400-year-old ashes.”
Viewed as alternative reform strategies, variants of both the special-treatment and equal-treatment approaches to pregnancy ought to be carefully evaluated at several levels. As with any reform, feminists cannot, unfortunately, retain full control over the use and implementation of their conceptualizations—in this case, by legislators, judges, policymakers, and the media. Nor can we fully anticipate the ramifications of the positions we adopt. A number of questions therefore arise. To what extent, for example, will a particular policy approach to pregnancy in the workplace respond to women’s immediate needs? In what ways might it be vulnerable to anti-woman revision in the courts and legislatures? How does a given approach to pregnancy in the workplace contribute to individual empowerment, to political education and organizing, and to the building of the movement? What are the impliations of the approach for the future, and are they adequate to the feminist vision? Which feminist vision?
I can only sketch answers to these questions. With respect to short-term impact and vulnerability to atavistic revision, I find the practical arguments in favor of the so-called equal-treatment approach hard to counter. Classifications based on difference have always, in the U.S. context, had a sinister capacity to be used against groups so categorized. Nothing occurred during the Reagan years that might suggest a reduced vulnerability to such disadvantageous interpretations, nor is there much basis to predict a major shift in the near future. Although equality strategies are all flawed or incomplete to some extent, they have in fact served U.S. women of diverse class and race origins relatively well. It is true that equality is a diffuse and limited notion, but those who on this basis reject the quest for equal rights spin a risky discourse and practice. From the perspective of subordinate groups, denial of equality is a burden too heavy to bear, while the assertion of rights can be practically useful and politically empowering.
Still, arguments stressing expediency are not enough to justify a position in favor of equal treatment of pregnancy in the workplace. The theoretical foundations for a radical version of this position must be more completely developed and the linkages to feminist aspirations for the future strengthened. The expanded gender-neutral perspective described here is, in my view, a start. In terms of immediate results and resistance to retrograde misinterpretation, gender neutrality provides minimum standards of equal treatment in the liberal sense. But it need not remain imprisoned in traditional liberal notions of the deskable sameness of abstract individuals. An expanded concept of gender neutrality can move beyond the imperatives of universal conformity to a single standard.
In short, gender neutrality can underpin policies that treat difference and diversity as entirely normal rather than as phenomena to be ignored or suppressed. The goal, in philosopher Iris Young’s words, is “to de-normalize the way institutions formulate their rules by revealing the plural circumstances that exist, or ought to exist, within them.” Rights could thus be extended to all persons in their human variety—rather than measured out in contradictorily equal portions to some on the basis of a presumed uniformity. Inclusion rather than exclusion would become the standard. Along the way, the meaning of difference could be transformed. As poet Audre Lorde appreciates, diversity is a boundless resource: “Difference must be not merely tolerated, but seen as a fund of necessary polarities between which our creativity can spark like a dialectic … Difference is [a] raw and powerful connection.”