Menstruation Discrimination and the Problem of Shadow Precedents

The burgeoning menstrual justice movement highlights that women, girls, transgender men and boys, and non-binary persons may face discrimination or harassment due to their menstruation in workplaces, schools, prisons, and many other aspects of life. In recent years, a few courts have suggested such discrimination may violate Title VII, the federal law that prohibits sex discrimination in employment. Their analysis focuses on the Pregnancy Discrimination Act (PDA), an amendment to Title VII passed in response to a Supreme Court case holding that pregnancy discrimination was not sex discrimination. The PDA overrode the decision by explicitly defining sex as including “pregnancy, childbirth, or related medical conditions.” The menstruation discrimination cases thus implicate more general questions of how statutory overrides should be interpreted, a subject I’ve explored extensively in prior work. My research suggests that this nascent litigation campaign may face two distinct challenges. The first is that courts will simply deny the claims, reasoning that menstruation is not directly addressed by the text of the PDA and therefore should not be recognized as sex discrimination. The second—which is more subtle, and also perhaps more likely—is that courts could find such discrimination to be actionable, but do so relying solely on the PDA’s explicit reference to “medical conditions” related to pregnancy. While that would be helpful for addressing discrimination in workplaces, it could open the door to arguments that menstruation is outside the ambit of sex discrimination laws that were not amended in a manner analogous to how Title VII was amended. To avoid these potential risks, theorists and advocates should seek to establish that menstruation discrimination is discrimination on the basis of “sex” itself, in that it is a condition linked to female reproductive organs and associated with stereotypes about women’s inferiority. That reasoning, which suggests that the PDA is properly interpreted as signaling Congress’s disapproval with the Supreme Court’s unduly narrow understanding of what constitutes sex discrimination in the earlier pregnancy case, should apply not only to Title VII, but also to the interpretation of statutory and regulatory prohibitions on sex discrimination in non-employment contexts.

Analysis of Pregnancy Anti-Discrimination Policy in Kentucky: Application of Kingdon’s Multiple Streams Framework

While several federal laws including the Pregnancy Discrimination Act, Family Medical Leave Act, and the Americans with Disabilities Act provide some freedom from discrimination due to pregnancy and breastfeeding-related conditions, many pregnant workers in Kentucky were not covered under these existing laws. The intent of Senate Bill 18, the Kentucky Pregnant Workers Act, was to provide clarity to employers about the protections afforded to pregnant workers by law as well as the need for employers to provide the same level of accommodations for pregnant workers that are available for those who are disabled. Similar bills had been filed during the 2015 to 2018 legislative sessions, and in 2019, Senate Bill 18 passed 87-5 and was signed by the Governor on April 9, 2019. The purpose of this article is to analyze a pregnancy anti-discrimination bill that passed during the 2019 Kentucky General Assembly utilizing Kingdon’s Multiple Streams Framework. This article also contains multiple policy alternatives, interest group involvement related to pregnancy anti-discrimination policy, unintended consequences of policy implementation as well as potential issues with enforcement of the Kentucky Pregnant Workers Act.

Last Lap: Work and Pregnancy

This chapter explores the legal challenges that workplace pregnancy posed in the 1970s and 1980s. Debates about workplace pregnancy revived clashes about difference and equality that had vexed the women's movement for decades. Paradoxically, pregnancy, a badge of difference, served as a springboard to advances in equal rights. As that happened, the new direction in pregnancy policy underscored the doom of single-sex protective laws. The most enduring steps in shaping pregnancy policy were the Pregnancy Discrimination Act of 1978 (PDA), which barred discrimination against pregnant workers; the Family and Medical Leave Act of 1993 (FMLA), which offered up to twelve-week unpaid leaves to employees in larger enterprises for family and medical emergencies; and the Johnson Controls decision of 1991, which barred fetal protection regulations as a form of sex discrimination.

Reading Amendments and Expansions of Title VII Narrowly

Throughout Title VII’s history, Congress has amended and expanded Title VII. Often, the Supreme Court has read such amendments and expansions narrowly, even as it generally reads Title VII broadly or narrowly depending on the case before it. The Court’s approach to Title VII expansions may merely indicate that the Court believes that such statutory alterations should be read only as broadly as necessary to effectuate their purposes. However, regardless of why the Court has interpreted these expansions narrowly, that the Court has done so suggests that Congress ought to consider carefully how it amends or expands Title VII in the future. This brief Essay examines how the Court has interpreted various amendments and expansions of Title VII and suggests that Congress will need to be very careful in how it expands Title VII to cover additional demographic characteristics and protect employees against all instances of discrimination Congress intends to ban. The Court’s interpretations may have implications for the legislation like the proposed Employment Non-Discrimination Act (“ENDA”), which expands Title VII’s coverage to sexual orientation and gender identity. Part I of this Essay discusses how the Court has interpreted Title VII’s motivating factor test, which Congress installed as part of the Civil Rights Act of 1991 (“1991 Act”). Part II discusses how the Court has interpreted Title VII’s disparate impact cause of action, also part of the 1991 Act. Part III discusses how the Court has addressed the reasonable accommodation requirement in Title VII religion cases, which Congress installed through its 1972 Amendments to Title VII. Part IV discusses how the Court has interpreted pregnancy discrimination under the Pregnancy Discrimination Act of 1978,3 which amended Title VII.

Pregnancy Discrimination and the Law

This article makes the case that social workers and social welfare advocates need to be aware of pregnancy discrimination law to better advocate for individual clients and for changes in the existing law. It is one piece of gender discrimination and inequity. This article reviews the current law around the Pregnancy Discrimination Act of 1978, including the recent holding in Young v. UPS and other relevant case law. It also reviews recent changes made by the Affordable Care Act and the Americans with Disabilities Act as well as related state laws designed to address pregnancy discrimination.