Reclaiming title VII and the PDA: Prohibiting workplace discrimination against breastfeeding women

New York University Law Review

Volumn 76, Issue 1, 2001, Pages 309-343

  Kasdan, Diana ^a  

^a NONE

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EID: 26044435445     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (195)

1. Pregnancy Discrimination Act (PDA), Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified as amended at 42 U.S.C. § 2000e(k) (1994)). The PDA amended Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-13 (1994), by changing the definition of "sex" so that the "terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions." Id. § 2000e(k); see also infra notes 72-82 (describing meaning and scope of PDA language).
2. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2.
3. See infra notes 144-50 and accompanying text (discussing scope of PDA as evidenced by congressional reports and Supreme Court interpretation); cf. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983) ("The Pregnancy Discrimination Act has now made clear that, for all Title VII purposes, discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex.").
4. 429 U.S. 125 (1976). For a discussion of the congressional overruling of Gilbert, see infra Part II.B; infra note 69.
5. Gilbert, 429 U.S. at 145-46 (holding that "disability-benefits plan does not violate Title VII because of its failure to cover pregnancy-related disabilities").
6. E.g., Martinez v. NBC Inc., 49 F. Supp. 2d 305, 309 (S.D.N.Y. 1999) (citing Gilbert for its Title VII analysis); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990) (noting PDA changed law after Gilbert but applying Gilbert logic to conclude that PDA does not protect against discrimination based on breastfeeding), aff'd mem., 951 F.2d 351 (6th Cir. 1991). For a description of the Gilbert analysis, see infra Part II.A, and as adopted by Martinez, see infra Part II.C.1.
7. Throughout this Note, the term "breastfeeding" encompasses any form of expelling milk, such as breastfeeding or pumping.
8. See Newport News, 462 U.S. at 684 (holding that "Congress has unequivocally rejected" reasoning of Gilbert "that an otherwise inclusive plan that singled out pregnancy-related benefits for exclusion was nondiscriminatory on its face, because only women can become pregnant"); see also Gilbert, 429 U.S. at 149 (Brennan, J., dissenting) ("Surely it offends common sense to suggest . . . that a classification revolving around pregnancy is not, at the minimum, strongly 'sex related.'" (citation omitted)); infra Part II.B (discussing legislative response to Gilbert).
9. See infra notes 140-43 and accompanying text (quoting Senate and House reports); see also infra notes 146-48 (discussing interpretations of PDA by Supreme Court).
10. For example, in fiscal year 1992, there were 21, 796 sex-based claims filed with the Equal Employment Opportunity Commission (EEOC). Office of Research, Info., & Planning, EEOC, Sex-Based Charges: FY 1992-FY 1999 (1999), http://www.eeoc.gov/stats/ sex.html.
11. By fiscal year 1999 that number had increased to 23,907. Info., & Planning, EEOC, Sex-Based Charges: FY 1992-FY 1999 (1999), Id.
12. While only a small percentage of cases reached an administrative determination of "reasonable cause," the percentage that did almost doubled from 1992 to 1999. Id. (reporting that 3.4% of cases in 1992 and 6.4% of cases in 1999 had reasonable cause). The discrepancy in pay between men and women may further support the existence of persistent workplace discrimination. See Bureau of Labor Statistics, U.S. Dep't of Labor, Highlights of Women's Earnings in 1998, at 1 (1999) (reporting that in 1998, women still only earned about seventy-six percent of that earned by men).
13. For instance, female employees are subject to comments such as: "Are you really serious about your career, or are you just going to go home and get pregnant?," Quaratino v. Tiffany & Co., 71 F.3d 58, 61 (2d Cir. 1995), and "we are not a family oriented company, we are a business," Bond v. Sterling, Inc., 997 F. Supp. 306, 309 (N.D.N.Y. 1998). Even when corporations offer family-friendly policies such as childcare, parental leave, or flextime, research has shown that "in practice asking for these benefits is often taken as an admission of inadequacy - a sign that women are unable to manage their work and family demands . . . [and] women who took advantage of them were seen as less committed and less desirable." Rosalind C. Barnett, A New Work-Life Model for the Twenty-First Century, 562 Annals Am. Acad. Pol. & Soc. Sci. 143, 147 (1999);
14. see also Leslie Bender, Sex Discrimination or Gender Inequality?, 57 Fordham L. Rev. 941, 950-51 (1989) (arguing that women's success in major law firms depends on their ability to "act and think most like the gendered male culture").
15. Donaldson v. Am. Banco Corp., 945 F. Supp. 1456, 1462 (D. Colo. 1996). This case also demonstrates how pregnant women face discrimination in the terms of their employment. The three plaintiffs were all subject to either involuntary termination or reduction in hours after becoming pregnant or giving birth. Id. at 1460.
16. Fejes v. Gilpin Adventures, Inc., 960 F. Supp. 1487, 1493-94 (D. Colo. 1997). For additional details of the Fejes case, see infra note 115 and accompanying text.
17. Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999) (referring to allegations of "tasteless and offensive remarks directed at the fact that she was engaged in pumping breast milk"); Plaintiff's Memorandum in Opposition to Motion at 5, Martinez (No. 98 Civ. 4842 (LAK)) [hereinafter Plaintiff's Memorandum].
18. Martinez, 49 F. Supp. 2d at 311 (reasoning that even "assuming the truth of Martinez's allegations, [all that is left] is a work environment hostile to breast pumping, not a work environment that subjected women to treatment less favorable than was meted out to men"). For additional discussion of Martinez, see infra notes 102-07 and accompanying text.
19. See infra Part II.C for an analysis of how lower courts have responded to breastfeeding-based discrimination claims.
20. See infra Part II.C.1 (arguing that holdings in lower courts have revived logic of Gilbert).
21. See infra notes 40-43 (citing studies on women's maternity and employment choices).
22. See infra notes 79-80 and accompanying text (relating conclusion in congressional reports that sex stereotyping hinders women's advancement in workforce). For a discussion of the competition between breastfeeding and maternal employment, see Brian Roe et al., Is There Competition Between Breast-Feeding and Maternal Employment?, 36 Demography 157 (1999).
23. See infra notes 98-99 and accompanying text for a discussion of courts that have equated breastfeeding with childcare.
24. This Note recognizes that the act of breastfeeding extends the biological process of lactation, and that a woman could choose to prevent or stop lactation by not engaging in, or not continuing, breastfeeding. See Judith G. Greenberg, The Pregnancy Discrimination Act: Legitimating Discrimination Against Pregnant Women in the Workforce, 50 Me. L. Rev. 225, 230 n.29 (1998) (noting that lactation process can be artificially aborted, but that courts should not expect this as norm); but cf. Jendi B. Reiter, Accommodating Pregnancy and Breastfeeding in the Workplace: Beyond the Civil Rights Paradigm, 9 Tex. J. Women & L. 1, 8 (1999) (explaining that unless artificially terminated, "inability to relieve the build-up of milk" during lactation can cause great discomfort). However, this "choice" does not alter the sex-specific nature of breastfeeding or the corresponding Title VII analysis. See infra notes 165-71 and accompanying text.
25. Donna J. Chapman & Rafael Pérez-Escamilla, Identification of Risk Factors for Delayed Onset of Lactation, 99 J. Am. Dietetic Ass'n 450, 450 (1999) ("The human lactation process progresses rapidly in pregnancy during lactogenesis stage I, in which the structures of the mammary gland undergo preparation for milk production. At approximately 2 to 3 days postpartum, lactogenesis stage II occurs and is marked by copious secretion of breast milk.").
26. Id. at 452 (describing "[b]reast hardness, breast fullness/heaviness, breast swelling, and leakage of colostrum/breast milk").
27. See Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 WL 373790, at *4 (D. Or. Apr. 9, 1999) (describing one occasion in which employer would not let plaintiff go home to feed her son and "[s]he started leaking breast milk and was humiliated," and describing another occasion in which "she was forced to sit on the plane drenched in breast milk" after employer refused plaintiff any breaks); Rebecca F. Black et al., Lactation Specialist Self-Study Series, Module 2: The Process of Breastfeeding 48 (1998) (recommending eight to twelve feedings during twenty-four-hour period, but noting that newborn's needs and feeding duration will vary among individual babies);
28. Work Group on Breastfeeding, Am. Acad. of Pediatrics, Breastfeeding and the Use of Human Milk, 100 Pediatrics 1035, 1036 (1997) [hereinafter AAP] (advising that newborns "should be nursed whenever they show signs of hunger").
29. Isabelle Schallreuter Olson, Out of the Mouths of Babes: No Mother's Milk for U.S. Children: The Law and Breastfeeding, 19 Hamline L. Rev. 269, 271-74 (1995) (detailing extensive research on benefits of breastfeeding to mother and child);
30. Corey Silberstein Shdaimah, Why Breastfeeding Is (Also) a Legal Issue, 10 Hastings Women's L.J. 409, 410-11 (1999) (same).
31. AAP, supra note 24, at 1035.
32. Breastfeeding and Human Lactation 103 (Jan Riordan & Kathleen Auerbach eds., 2d ed. 1999) [hereinafter Breastfeeding] (explaining that hormone oxytocin, which causes release of milk, also contracts uterus and controls postpartum bleeding).
33. AAP, supra note 24, at 1035.
34. For a discussion of why the feminist sociological agenda should focus more attention on breastfeeding given the social consequences that it has on women's personal and public lives, see Cindy A. Stearns, Breastfeeding and the Good Maternal Body, 13 Gender & Soc'y 308 (1999). Stearns studies the way women balance breastfeeding in response to "[t]he perceived need to hide breastfeeding . . . [which] effectively keeps some women at home and out of public life more than they would be otherwise." Id. at 323.
35. AAP, supra note 24, at 1037. The United States Department of Health and Human Services, through its "Healthy People" initiative, has sought to increase the rate of breastfeeding in this country since 1984 when the Surgeon General convened a Workshop on Breastfeeding and Human Lactation. See Breastfeeding, supra note 27, at 18 (noting seventy-five percent breastfeeding rate as year 2000 goal). The new Healthy People 2010 initiative is still working toward a seventy-five percent rate for postpartum breastfeeding, fifty-percent rate at six months, and twenty-five percent at one year. See 2 U.S. Dep't of Health & Human Servs., Healthy People 2010 § 16-19 (2d ed. 2000), http://www.health.gov/ healthypeople/Document/HTML/Volume2/16MICH.htm. While improvements have been made, the Department of Health and Human Services advises that success in reaching this goal will require greater "social support, including support from employers."
36. Healthy People 16-19 (2000), Id.
37. AAP, supra note 24, at 1035.
38. Id.
39. According to 1998 statistics from the United States Department of Labor, 59.8% of women age sixteen and over are employed. Twenty Facts on Women Workers, in Facts on Working Women (Women's Bureau, U.S. Dep't of Labor), Mar. 2000, Fact 2, http:// www.dol.gov/dol/wb/public/wb_pubs/fact98.htm [hereinafter Women's Bureau]. The employment rate is significantly higher, around seventy-five percent, for women between ages twenty and fifty-four.
40. Twenty Facts on Women Workers, Facts on Working Women 2000, Id.
41. Twenty Facts on Women Workers, Facts on Working Women 2000, Id. Fact 4.
42. Women with infants under the age of one are employed at a rate of 53.6%. Bureau of Labor Statistics, U.S. Dep't of Labor, Employment of Mothers with Infants, Monthly Labor Review: The Editor's Desk (June 8, 1999), available at http://www.bls.gov/opub/ted/ 1999/jun/wk2/art02.htm; see also Twenty Facts on Women Workers, supra note 33, Fact 6 (reporting that 60.7% of women with children under age three are employed). Not surprisingly, fathers with children under age six continue to work at a much higher rate (96.1%) than mothers with children under age six (64.9%).
43. Bureau of Labor Statistics, U.S. Dep't of Labor, Labor Force Participation of Fathers and Mothers Varies with Children's Ages, Monthly Labor Review: The Editor's Desk (June 3, 1999), available at http://www.bls.gov/ opub/ted/1999/jun/wkl/art03.htm.
44. One of the oldest and most well-known breastfeeding advocacy groups is La Leche League, founded in 1956. La Leche League International (LLLI), at http:// www.lalecheleague.org (last modified Oct. 18, 2000). Today, numerous breastfeeding organizations, professional groups, and other health organizations advocate for greater education, acceptance, and use of breastfeeding.
45. See, e.g., Am. Coll. of Nurse-Midwives, Breastfeeding, at http://www.acnm.org/prof/breast.htm (July 27, 1992) (posting position statement encouraging educational programs, public policies, and workplace practices that support breastfeeding);
46. Child Health and Development (CHD), World Health Org. (WHO), at http://www.who.int/chd (last visited Oct. 21, 2000) (suggesting six months of exclusive breastfeeding as WHO and UNICEF guidelines);
47. Coalition for Improving Maternity Servs. (CIMS), at http://www.motherfriendly.org (last visited Oct. 21, 2000) (identifying coalition, including LLLI and lactation professionals, that identifies mother-friendly and baby-friendly birthing services);
48. International Lactation Consultant Association (ILCA), at http://www.ilca.org (last modified Oct. 14, 2000) (detailing professional association that promotes development and advancement of lactation consultants);
49. National Alliance for Breastfeeding Advocacy (NABA), at http://hometown.aol.com/marshalact/Naba/ home.html (last visited Oct. 21, 2000) (working to promote breastfeeding as public health issue through lobbying, monitoring, advocacy development, and coalition building);
50. World Alliance for Breastfeeding Action (WABA), at http://www.waba.org.br/ (last visited Oct. 21, 2000) (organizing, in conjunction with UNICEF, annual week long events to generate public awareness and support of breastfeeding).
51. See supra note 30 (describing Department of Health and Human Services goals for improving rate of breastfeeding).
52. See Shdaimah, supra note 25, at 430-35 (discussing congressional effort to educate low-income women on breastfeeding through federal nutritional program for "Women, Infants, and Children"); supra note 36 (listing numerous advocacy organizations that provide education and training).
53. See, e.g., Ga. Code Ann. § 34-1-6 (Supp. 2000) (encouraging employers to provide breaks for women to express breast milk for infant children); Haw. Rev. Stat. § 378-10.2 (1999) (forbidding employers to prohibit employees from expressing breastmilk during meal or break periods); N.M. Stat. Ann. § 28-20-1 (Michie 2000) (declaring "[r]ight to breastfeed" in any public or private place where mother is authorized to be present); Tenn. Code Ann. § 50-1-305 (1999) (requiring employers to provide "reasonable unpaid break time" and "make reasonable efforts" to provide rooms for expressing breast milk). For a more detailed discussion of state legislation pertaining to breastfeeding, see Reiter, supra note 21, at 22-27.
54. The Stearns study reports findings on how mothers attempt to negotiate discreetly breastfeeding in public places. Stearns, supra note 29, at 312-16. For example, Stearns found that work presented an institutional setting in which some women felt breastfeeding was never appropriate. Id. at 315; see also Breastfeeding, supra note 27, at 22-23 (noting that despite efforts to promote breastfeeding, social approval and acceptance are still lacking).
55. Roe et al., supra note 19, at 158 ("[W]orking mothers will make decisions about employment first, and then structure the infant-feeding decision around work constraints."). Contrary to the researchers' expectations, the study discovered that "duration of breast-feeding is not a statistically significant determinant of work-leave duration." Id. at 164.
56. Compare Roe et al., supra note 19, at 159 (reporting that working women in study breastfed for average of 21.53 weeks), with AAP, supra note 24, at 1037 (recommending one year minimum of breastfeeding).
57. Roe et al., supra note 19, at 166 (noting that "the negative effect of market work on breast-feeding duration dissipates" if women aim to balance both objectives rather than prioritizing work schedules).
58. State laws provide another avenue for protection against this type of discrimination, and in some states they may provide greater protection than Title VII. See supra note 39 (citing state breastfeeding statutes and article discussing state laws). This Note, however, is limited to an analysis of federal rights and protections provided by Title VII.
59. 429 U.S. 125 (1976).
60. Id. at 145-56.
61. See supra notes 1-5 and accompanying text (discussing Title VII as affected by Gilbert decision and subsequent amendment through PDA); infra notes 69-71 and accompanying text (discussing speedy reaction by Congress to reverse effect of Gilbert).
62. See Developments in the Law - Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109, 1166-67 (1971) (discussing original purposes and concepts underlying Title VII).
63. Facial discrimination occurs when an employment policy is based explicitly on sex. See City of L.A. Dep't of Water & Power v. Manhart, 435 U.S. 702, 714-18 (1978) (holding that it is prima facie sex discrimination to require that female employees contribute more money to pension fund than male employees); Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (per curiam) (holding that, absent exception for bona fide occupational qualification, it is prima facie sex discrimination for employer to have one hiring policy for women with preschool-aged children and another for men with preschool-aged children).
64. In cases of disparate treatment, there is not an explicit sex-based policy, but the plaintiff alleges differential treatment "because of" or "based on" sex. The model for such claims is the same as that for disparate treatment based on race, as set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas test, a plaintiff may establish a prima facie case of race discrimination by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons with complainant's qualifications. Id. at 802; see also Johnson v. Transp. Agency, 480 U.S. 616 (1987) (applying framework set forth in McDonnell Douglas to claim of discrimination based on sex, in context of affirmative action plan). This same prima facie approach applies in cases where an employee faces discrimination in other terms of employment, including, for example, promotions, job assignments, and transfers. See generally Daniel M. Le Vay, Annotation, Sex Discrimination in Job Assignment or Transfer as Violation of Title VII of Civil Rights Act of 1964 (42 U.S.C.S. §§ 2000e et seq.), 123 A.L.R. Fed. 1 (1995) (citing and describing numerous cases finding sex discrimination in terms of employment after initial hiring).
65. Although it took longer to develop the theory that sexual harassment that creates a hostile work environment is sex discrimination, it is now firmly recognized as a form of discriminatory treatment based on sex under Title VII. Sexual Harassment, 29 C.F.R. § 1604.11(a) (2000) ("Harassment on the basis of sex is a violation of . . . title VII."); see Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998) (establishing that employer is subject to vicarious liability to employee when supervisor creates hostile work environment because of sex); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998) (stating that both quid pro quo and hostile environment claims are cognizable and actionable under Title VII); Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64 (1986) ("Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex."). See generally Beverly Johnson, Sexual Harassment on the Job, in 33 Am. Jur. Trials 257, 270-83 (1986 & Supp. 1999) (detailing various theories and standards of proof for sexual harassment claims under Title VII).
66. Disparate impact claims seek to demonstrate that a facially neutral policy has a disproportionately negative impact on one sex. The burden of proof for disparate impact claims was added to Title VII in 1991. Civil Rights Act of 1991, Pub. L. No. 102-166, § 105(a), 105 Stat. 1071, 1074 (1991) (codified at 42 U.S.C. § 2000e-2(k)) (requiring plaintiff to demonstrate that each challenged employment practice has disparate impact and allowing respondent to defend such practices by proving that they are business necessity). The Supreme Court first recognized this theory of discrimination in the context of race discrimination. Griggs v. Duke Power Co., 401 U.S. 424, 430-32 (1971) (holding that Title VII forbids employment practice that is neutral on face if it preserves status quo of prior discrimination or operates to exclude minorities, regardless of intent). The Court then applied it to a claim of sex discrimination in Dothard v. Rawlinson, 433 U.S. 321, 332-34 (1977) (noting that Title VII is violated if facially neutral employment standards create significantly discriminatory hiring pattern with disproportionate negative effect on women, but holding that specific facts of case created allowable exception for bona fide occupational qualification).
67. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 136-37 (1976).
68. Id. at 145-46; see also infra notes 62-68 and accompanying text (discussing Supreme Court analysis in Gilbert).
69. 417 U.S. 484 (1974).
70. Id. at 486.
71. Id. at 496-97.
72. Id. at 501 (Brennan, J., dissenting).
73. Id. at 496-97 n.20 (rationalizing that plan "merely remove[d] one physical condition - pregnancy - from the list of compensable disabilities").
74. Id. at 497 n.20.
75. E.g., Satty v. Nashville Gas Co., 522 F.2d 850, 854 (6th Cir. 1975) (holding that disparate treatment of pregnancy leave compared to other sick leave is violation of Title VII), vacated in part in light of Gilbert, 434 U.S. 136 (1977); Hutchison v. Lake Oswego Sch. Dist. No. 7, 519 F.2d 961, 965 (9th Cir. 1975) (holding that exclusion of pregnancy-related disabilities from sick leave coverage is Title VII violation), vacated in light of Gilbert, 429 U.S. 1033 (1977); Gilbert v. Gen. Elec. Co., 519 F.2d 661, 667 (4th Cir. 1975) (holding that denial of pregnancy-related disabilities under employer benefit program falls "clearly within the prohibitions of Title VII"), rev'd, 429 U.S. 125 (1976); Tyler v. Vickery, 517 F.2d 1089, 1098 (5th Cir. 1975) (citing with approval rationale in other circuits that found pregnancy-based discrimination is sex discrimination under Title VII, even if not under Constitution); Communications Workers of Am. v. AT&T Co., 513 F.2d 1024, 1031 (2d Cir. 1975) (holding that decision in Geduldig does not bar pregnancy discrimination claim under Title VII), vacated in light of Gilbert, 429 U.S. 1033 (1977); Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199, 205-06 (3d Cir. 1975) (holding it discriminatory to treat disability due to pregnancy differently from other temporary disabilities), vacated on jurisdictional grounds, 424 U.S. 737 (1976).
76. Compare Geduldig v. Aiello, 417 U.S. 484, 496-97 (1974) (reasoning that State's legitimate, noninvidious financial objective for excluding pregnancy conditions from disability program did not violate Equal Protection Clause of Fourteenth Amendment), with Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 136 (1976) (concluding that reasoning of Geduldig was "precisely in point" for analysis of Title VII claim at issue). But as the Supreme Court noted after the enactment of the PDA, "in evaluating the constitutionality of California's insurance program, the [Geduldig] Court focused on the 'non-invidious' character of the State's legitimate fiscal interest . . . . This justification was not relevant to the statutory issue presented in Gilbert." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 677 n.13 (1983) (citation omitted).
77. Gilbert, 429 U.S. at 128-29. The women who brought the suit represented a class of women employees who similarly had been denied benefits. Id. at 127 n.2.
78. Id. at 133, 141-45 (finding that Court's equal protection cases were useful starting point while EEOC guidelines were not sufficiently persuasive).
79. Id. at 136 (quoting Geduldig, 417 U.S. at 496-97 n.20). The Court also held that the policy did not have a disparate impact on women. Id. at 137.
80. Id. at 149 (Brennan, J., dissenting) (citation omitted).
81. Id. at 161-62 (Stevens, J., dissenting).
82. The Senate Report on the PDA directly quoted Justice Brennan and Justice Stevens when it declared that the dissenting opinions "correctly express both the principle and the meaning of title VII." S. Rep. No. 95-331, at 2-3 (1977); accord Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 677-78 (1983) (citing approvingly dissenters' analysis in Gilbert and quoting Senate Report's express approval of dissenting Justices' interpretation of Title VII).
83. Gilbert was decided on December 7, 1976, and the PDA was introduced in the Senate on March 15, 1977, S. Rep. No. 95-331, at 3. Congressional intent to overrule Gilbert was recognized by the Supreme Court in its first PDA case. Newport News, 462 U.S. at 676, 678 (holding that Congress "not only overturned the specific holding in . . . Gilbert, but also rejected the test of discrimination employed" in that case and reasoning that Congress "unambiguously expressed its disapproval of both the holding and reasoning of the Court in the Gilbert decision" (citation omitted)).
84. S. Rep. No. 95-331, at 3.
85. See Newport News, 462 U.S. at 679 (citing legislative history for proposition that "amending legislation was necessary to re-establish the principles of Title VII law as they had been understood prior to the Gilbert decision").
86. 42 U.S.C. § 2000e(k) (1994).
87. The second clause of § 2000e(k) reads in full: [W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise. Id.
88. The House Report states: We recognize that enactment of H.R. 6075 will reflect no new legislative mandate of the Congress nor effect changes in practices, costs, or benefits beyond those intended by Title VII of the Civil Rights Act. On the contrary, the narrow approach utilized by the bill is to eradicate confusion by expressly broadening the definition of sex discrimination in Title VII to include pregnancy-based discrimination. H.R. Rep. No. 95-948, at 3-4 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4751-52; see also Newport News, 462 U.S. at 681 n.20 (citing Senate Report for proposition that PDA was intended to clarify definition of sex while preserving existing Title VII principles).
89. For example, under 42 U.S.C. § 2000e-2(a), it is an "unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." A proper reading of this language, in light of § 2000e(k), includes the term pregnancy as part of the term sex.
90. As explained by the Supreme Court, the second clause of the PDA, which is specific to medical benefits, is not a "limitation on the remedial purpose of the PDA," but rather it is an illustration directed at overruling Gilbert. Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 285 (1987); see also Newport News, 462 U.S. at 679 (noting that Act does not have scope limited to "the specific problem that motivated its enactment").
91. See Guerra, 479 U.S. at 284-85 (citing Newport News for "well established" principle that Congress enacted PDA as reaction to and overruling of Gilbert); see also supra notes 68-71 and accompanying text (discussing accepted view that PDA overruled Gilbert).
92. S. Rep. No. 95-331, at 3 (1977); see also supra notes 48-52 and accompanying text (discussing purpose of Title VII generally).
93. As bill sponsor Senator Williams concluded during his remarks, "this legislation restores to our working women a very basic and fundamental protection against sex discrimination, one which we intended to provide them when title VII was enacted." 123 Cong. Rec. 29,387 (1977); see also 123 Cong. Rec. 29,663 (1977) (statement of Sen. Cranston, cosponsor) ("[T]his legislation will represent a significant step forward for working women and their families . . . to assure equality of employment opportunity and to eliminate those discriminatory practices which pose barriers to working women in their struggle to secure equality in the workplace."); 123 Cong. Rec. 29,388 (1977) (statement of Sen. Kennedy) (emphasizing high numbers of women in workforce and economic necessity of ensuring their equal treatment); 123 Cong. Rec. 29,387 (1977) (statement of Sen. Javits) (describing enactment of PDA as "vital social policy"). The floor debate in the House provides similar commentary. E.g., 124 Cong. Rec. 21,442 (1978) (statement of Rep. Tsongas) (stating: [The PDA] would go a long way toward assuring women equality in the job market. It would assure that women who work either out of choice or necessity are not penalized for having a family. It would also put an end to an unrealistic and unfair system that forces women to choose between family and career - clearly a function of sex bias in the law, which no longer reflects the conditions of women in our society.); 124 Cong. Rec. 21,435 (1978) (statement of Rep. Hawkins) ("[G]enuine equality in the American labor force is no more than an illusion as long as employers remain free to make pregnancy the basis of unfavorable treatment of working women.").
94. See S. Rep. No. 95-331, at 3 ("[T]he assumption that women will become pregnant and leave the labor market is at the core of the sex stereotyping resulting in unfavorable disparate treatment of women in the workplace.").
95. Id. ("A failure to address discrimination based on pregnancy, in fringe benefits or in any other employment practice, would prevent the elimination of sex discrimination in employment.").
96. See UAW v. Johnson Controls, Inc., 499 U.S. 187, 205, 211 (1991) (relying on legislative history and holding that Title VII, as amended, forbids "sex-specific fetal-protection policies" because it is based on women's "capacity" to become pregnant); Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 684 (1983) (applying Title VII as amended by PDA, to male employees). The Supreme Court also has held that Title VII, as amended by the PDA, does not prohibit preferential treatment of pregnant workers. In so holding, it reasoned that the purpose of Title VII in achieving equality in employment takes into account the realities of "social context." Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 288-90 (1987). This reliance on legislative history is markedly different from the Court's position in Gilbert, see supra notes 64-65 and accompanying text, thus indicating the PDA's legislative history as an important development in Title VII interpretation.
97. Notter v. N. Hand Prot., No. 95-1087, 1996 WL 342008 (4th Cir. June 21, 1996); Wallace v. Pyro Mining Co., No. 90-6249, 1991 WL 270823 (6th Cir. Dec. 19, 1991); Barrash v. Bowen, 846 F.2d 927 (4th Cir. 1988).
98. See infra notes 94, 99 (citing cases that adopted rationales originating in Fourth and Sixth Circuits).
99. 846 F.2d 927 (4th Cir. 1988).
100. No. 95-1087, 1996 WL 342008 (4th Cir. June 21, 1996).
101. Id. at *5.
102. See infra notes 89-92 and accompanying text (analyzing progression of "medical conditions" rule from Barrash to Notter).
103. 846 F.2d at 931. The Barrash court actually held that, because the plaintiff had settled her claim of wrongfully denied maternity leave through a union grievance process, it was not properly before the court as a Title VII claim. Nonetheless, the court went on to state its interpretation of the PDA as requiring a showing of incapacitation and noted that, since the plaintiff had not shown incapacitation, she still would have failed to raise a Title VII claim. Id. at 930.
104. In Notter, the plaintiff claimed disparate treatment by her employer because she was fired after taking medical leave to recover from a caesarian. Notter, 1996 WL 342008, at *3-*4. The defendant argued that because the plaintiff's condition was not incapacitating, under Barrash, she had failed to establish that she was protected by the PDA. Id. at *4-*5.
105. Id. (describing requirement of incapacity in Barrash as made in dicta and without any citation to authority).
106. See id. (clarifying that "Barrash stands for the narrow proposition that breastfeeding is not a medical condition related to pregnancy or to childbirth" for purpose of PDA analysis). For the argument that nonmedical conditions of pregnancy are protected under the PDA, see infra Part III.A.
107. For example, before Notter was decided, a district court in the Sixth Circuit adopted the Barrash dicta. Wallace v. Pyro Mining Co., 789 F. Supp. 867, 868 (W.D. Ky. 1990), aff'd mem., 951 F.2d 351 (6th Cir. 1991). The rationale and holding were affirmed by the Sixth Circuit Court of Appeals, Wallace v. Pyro Mining Co., No. 90-6249, 1991 WL 270823 (6th Cir. Dec. 19, 1991), and then followed outside of the Sixth Circuit, e.g., Barnes v. Hewlett-Packard Co., 846 F. Supp. 442, 445 (D. Md. 1994) (quoting "incapacitating conditions" language from Wallace, which in turn had cited Barrash for support of this interpretation).
108. E.g., Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492 (D. Colo. 1997) (decided after Notter but citing Barrash); McNill v. N.Y. City Dep't of Corr., 950 F. Supp. 564, 571 (S.D.N.Y. 1996) (same).
109. No. 90-6249, 1991 WL 270823 (6th Cir. Dec. 19, 1991). In Wallace, the plaintiff did not clarify whether her claim raised the issue of disparate treatment or disparate impact. Wallace, 789 F. Supp. at 868. Ultimately, the form of her claim was irrelevant since the court held that a breastfeeding person simply was not within the class of persons protected by the PDA. Id. at 868-69.
110. The court stated: "[W]e find further guidance in the case of Barrash v. Bowen, . . . [which] noted that for purposes of the Pregnancy Discrimination Act, 'pregnancy and related conditions must be treated as illnesses only when incapacitating.'" Wallace, 789 F. Supp. at 870 (citation omitted).
111. Wallace, 1991 WL 270823, at *1.
112. Wallace, 789 F. Supp at 870.
113. For example, in Fejes v. Gilpin Ventures Inc., the district court of Colorado, noting that no Tenth Circuit decision addressed the issue, cited Barrash and Wallace to support its holding that, "[b]ased on the language of the PDA, its legislative history, and decisions from the other courts interpreting the Act, . . . breast-feeding or childrearing are not conditions within the scope of the PDA." 960 F. Supp. at 1491; see also Martinez v. NBC Inc., 49 F. Supp. 2d 305, 309-10 (S.D.N.Y. 1999) (citing Wallace, Fejes, and McNill for proposition that breastfeeding is not covered by Title VII); Moawad v. Rx Place, No. 95 CV 5243(NG), 1999 WL 342759, at *5 (E.D.N.Y. May 27, 1999) (citing McNill, which relied on Wallace, for proposition that women claiming conditions such as breastfeeding "cannot raise a claim under the PDA"); McNill, 950 F. Supp. at 570-71 (S.D.N.Y. 1996) (citing Wallace and dismissing plaintiff's PDA claim on summary judgment); Barnes v. Hewlett-Packard Co., 846 F. Supp. 442, 444-45 (D. Md. 1994) (quoting Wallace extensively and analogizing case at bar to Wallace analysis of breastfeeding as childcare).
114. See supra notes 68-71 and accompanying text (discussing rejection of Gilbert rationale and holding).
115. At least one commentator has argued that this "most unfortunate" persistence of the "Gilbert doctrine" demonstrates the need to move beyond the civil rights paradigm in order to accommodate breastfeeding women in the workforce. Reiter, supra note 21, at 6.
116. 49 p. Supp. 2d 305 (S.D.N.Y. 1999).
117. See id. at 311 (claiming unfair treatment by supervisor, demotion, and onerous schedule changes in response to her breast-pumping activity).
118. See supra note 14 and accompanying text (citing plaintiff's brief and court's recitation of facts in Martinez regarding allegations that male employees made offensive and harassing comments while standing outside room where Martinez pumped milk).
119. Martinez, 49 F. Supp. 2d at 309. Notably, Wallace also directly cited and relied on the logic of Gilbert. However, the court at least recognized the enactment of the PDA as altering Title VII sex discrimination law, even if it ultimately failed to see how that applied to the breastfeeding-based claims at bar. See supra notes 95-99 and accompanying text (discussing Wallace analysis of PDA). Martinez is yet more disturbing because it fails to cite or mention the PDA, let alone attempt to reject its applicability to the plaintiff's claims.
120. There is reason to believe that Martinez could be followed widely given the dearth of cases on this issue and the widespread adoption of the Wallace reasoning, which also relied on Gilbert. See supra notes 99-100.
121. See supra notes 50-51 (discussing disparate treatment and sexual harassment as two forms of discrimination in violation of Title VII). Although it is true that singular and isolated incidents of sexual harassment cannot generally sustain a claim of sex discrimination, Johnson, supra note 51, Supp. § 4.5, the Martinez court did not reject the claim because it failed to show an abusive or hostile environment. Rather, it rejected her claim because, as the court concluded, it alleged "a work environment hostile to breast pumping, not a work environment that subjected women to treatment less favorable than was meted out to men." Martinez, 49 F. Supp. 2d at 311. Thus, the court found that the subject, not the extent, of hostile treatment placed Martinez's claim beyond Title VII relief.
122. See Wallace v. Pyro Mining Co., 789 F. Supp. 867, 870 (W.D. Ky. 1990) ("Nothing in the Pregnancy Discrimination Act, or Title VII, obliges employers to accommodate the child-care concerns of breast-feeding female workers by providing additional breast-feeding leave not available to male workers."), aff'd mem., 951 F.2d 351 (6th Cir. 1991); see also Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1491-92 (D. Colo. 1997) (quoting Wallace); McNill v. N.Y. City Dep't of Corr., 950 F. Supp. 564,571 (S.D.N.Y. 1996) (same).
123. See Fejes, 960 F. Supp. at 1492 (discussing whether PDA requires accommodation of woman's breastfeeding schedule); McNill, 950 F. Supp. at 571 (quoting Wallace for proposition that employers need not accommodate women with breastfeeding leave because it is not available to men); Wallace, 789 F. Supp. at 870 (holding that PDA does not make it illegal for employers to deny discretionary leave that would accommodate employee's breastfeeding schedule). But cf. O'Hara v. Mt. Vernon Bd. of Educ., 16 F. Supp. 2d 868, 885 (S.D. Ohio 1998) (noting in dicta that EEOC guidelines suggest employer should grant leave for childcare purposes on same basis as leave for other nonmedical reasons (citing Barnes v. Hewlett-Packard Co., 846 F. Supp. 442, 444 (D. Md. 1994))). Although a thorough discussion of whether the PDA does, or can, require accommodation as necessary to prevent discrimination is beyond the scope of this Note, commentators generally have agreed that current Title VII analysis does not require accommodation. See Reiter, supra note 21, at 3-4 (arguing that individual rights model, as exemplified by Title VII, is insufficient for accommodating biologically unique circumstances of women workers); D'Andra Millsap, Comment, Reasonable Accommodation of Pregnancy in the Workplace, 32 Hous. L. Rev. 1411, 1417 (1996) (explaining that "PDA does not grant a pregnant employee the affirmative power to demand accommodation" but rather is negative right to be treated equally with similarly situated workers); cf. Shdaimah, supra note 25, at 424-25 (explaining that Title VII was designed to remove barriers to equality, not favor groups, and that there is "fear that a policy which recognizes and accommodates difference can be dangerous ground").
124. Contra Candace Saari Kovacic-Fleischer, Litigating Against Employment Penalties for Pregnancy, Breastfeeding, and Childcare, 44 Vill. L. Rev. 355, 356-58 (1999) (outlining argument that Title VII, as amended by PDA, does require accommodation in order to prevent discrimination).
125. Congress, nonetheless, indicated its awareness of this line. For example, in its report, the Senate clarified that the bill does not require employers to treat pregnant women in any particular manner with respect to hiring, permitting them to continue working, providing sick leave, furnishing medical and hospital benefits, providing disability benefits, or any other matter. The bill would simply require that pregnant women be treated the same as other employees on the basis of their ability or inability to work. S. Rep. No. 95-331, at 4 (1977).
126. See id.
127. For instance, at one point in its discussion, the Wallace court identified specific claims and facts that could be interpreted as indicating the employer's refusal to accommodate the employee. It described the plaintiff's claim of sex discrimination as arising from the employer's refusal to grant plaintiff discretionary personal leave for breastfeeding. Wallace, 789 F. Supp. at 868-69. However, in holding that the PDA did not apply, the court did not rely on the fact that supplemental leave was "discretionary." Rather, the court stated that even when additional leave, as requested by Wallace, was a "condition of employment," the employer is entitled to a blanket policy prohibiting personal leave for breastfeeding. Id. at 869. Thus, under the Wallace court interpretation of Title VII, even if supplemental leave is a term of employment under the company policy, if it is requested for breastfeeding, it becomes an "accommodation."
128. 960 F. Supp. 1487 (D. Colo. 1997).
129. Id. at 1491.
130. The plaintiff, a casino worker, and her employer initially set up a two-day workweek while she was establishing her breastfeeding schedule. However, after a switch in supervisors, she suddenly was issued a letter stating she had been self-terminated for failing to show up for work. After discussing the previous arrangement with her new supervisor, they agreed that she would return to a full-time schedule. Shortly after this agreement, Fejes realized her gaming license was about to expire. Fejes and her employer agreed that she would begin work full-time as soon as the new license arrived. Yet once again, she was informed that she was terminated, this time because her employer could not hold the position open until her return. Id. at 1490-91. Despite this explanation, Fejes alleged that other employees with expired licenses were allowed to work in nongaming positions until the license renewal arrived. Id. at 1494.
131. See id. at 1491-92. In comparison, the analysis of Fejes's other general sex discrimination claims looked more directly at the issue of discriminatory treatment. See id. at 1492-93. This separation exemplifies the tendency of courts to conceptualize pregnancy discrimination as something different from sex discrimination. See id. at 1491 (referring to "gender and pregnancy prongs of [plaintiff's] Title VII claim"); see also O'Hara v. Mt. Vernon Bd. of Educ., 16 F. Supp. 2d 868, 885 (S.D. Ohio 1998) ("As a result of the PDA, there are now, as one court has referred to it, two prongs of sex discrimination, 'the gender and pregnancy prongs of . . . Title VII.'" (quoting Fejes, 960 F. Supp. at 1491)). In contrast, as the legislative history of Title VII demonstrates, such separation of pregnancy and sex discrimination was not intended. See supra notes 74-80 and accompanying text (describing congressional intent to clarify pregnancy discrimination as one form of sex discrimination).
132. See Fejes, 960 F. Supp. at 1492 (moving from discussion of breastfeeding as requiring accommodation to conclusion that, "as a matter of law," plaintiff could not establish prima facie case of pregnancy discrimination when based on breastfeeding status). The same type of blurring between accommodation and discrimination issues was seen in Wallace. The plaintiff, after completing her maternity leave, requested an additional six-week personal leave to breastfeed. The employer decided not to grant this leave, and, when Wallace did not promptly return to work, she was terminated. Wallace, 789 F. Supp. at 868. In deciding this case, the court seemed to infer a maximum level of benefits required by the PDA, holding that the PDA did not intend to make it illegal for an employer to deny personal leave for the accommodation of childcare concerns such as breastfeeding. Id. at 870. Without examining the specifics of the company's policy, it is unclear what factors determined the granting or withholding of personal leave. However, to hold simply that the PDA never requires personal leave for breastfeeding is to permit even those companies that generally provide leave for numerous nonmedical reasons to withhold it when requested for breastfeeding. This would raise the issue of discriminatory distribution of benefits, not accommodation. See infra Part III.C.
133. The Fejes court, however, did accept the premise that breastfeeding is beyond the definition of sex under Title VII. Fejes, 960 F. Supp. at 1492 ("Also, I conclude that breast-feeding . . . [is] not [a] medical condition[ ] . . . within the meaning of the PDA.").
134. While the PDA helped clarify the definition of the terms "because of sex" and "on the basis of sex," it did not define the term "discrimination," and discrimination is not otherwise defined in Title VII. See 42 U.S.C. § 2000e (1994) (giving definitions of terms for purposes of Civil Rights Act, but not including "discrimination"). Rather, Title VII lists the types of practices that, if done in a discriminatory manner, are unlawful. Id. § 2000e-2 (prohibiting discrimination in hiring, discharge, compensation, and terms, conditions, or privileges of employment, and prohibiting segregation or classifications that adversely affect employees' status or employment opportunity).
135. The cases that used an accommodation analysis to reject breastfeeding-based claims, supra note 108, also have been cited as support for the more general proposition that plaintiffs cannot raise breastfeeding-based claims under Title VII, see Martinez v. NBC Inc., 49 F. Supp. 2d 305, 309 n.16 (S.D.N.Y. 1999) (citing Fejes and McNill for proposition that breastfeeding is not covered by Title VII); Moawad v. Rx Place, No. 95 CV 5248(NG), 1999 WL 342759, at *6 (E.D.N.Y. May 27, 1999) (citing McNill for proposition that women claiming conditions such as breastfeeding "cannot raise a claim under the PDA").
136. Under a sex-plus discrimination theory, discrimination, generally in the form of disparate treatment, is based on gender plus a second sex-neutral characteristic that may disguise the underlying gender-based discrimination. For example, if married women but not married men are discriminated against, when one removes the "plus" of marriage the reality is discrimination based on sex alone. See Martinez, 49 F. Supp. 2d at 310 (explaining sex-plus theory and its inapplicability to Martinez's case). For a discussion of the sex-plus theory, see generally Wendi Barish, Comment, "Sex-Plus" Discrimination: A Discussion of Fisher v. Vassar College, 13 Hofstra Lab. L.J. 239 (1995); Regina E. Gray, Comment, The Rise and Fall of the "Sex-Plus" Discrimination Theory: An Analysis of Fisher v. Vassar College, 42 How. L.J. 71 (1998).
137. Martinez applied the sex-plus theory to both her claim of disparate treatment, Martinez, 49 F. Supp. 2d at 310 (claiming disparate treatment based on her sex plus secondary characteristic of breastfeeding), and her claim of sexual harassment, id. at 311 (asserting "'sex-plus' hostile work environment").
138. Under the sex-plus theory, if the second characteristic must be sex-neutral, then breastfeeding, which is gender-specific, cannot fit within the framework. As explained by the court in Martinez, "'gender-plus plaintiffs can never be successful if there is no corresponding subclass of members of the opposite gender.'" Id. at 310 (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1204 (10th Cir. 1997)).
139. Compare Memorandum of Law in Support of Defendants' Motion for Summary Judgment at 19-21, Martinez (No. 98 Civ. 4842 (LAK)) (citing Wallace, Fejes, McNill, and Barrash, among other cases, to argue that Title VII does not cover breastfeeding), with Plaintiff's Memorandum at 16-18 (relying on sex-plus claim with no specific reliance on PDA or counterargument to breastfeeding cases cited by defendant); see also Martinez, 49 F. Supp. 2d at 310 (noting that plaintiff's motion did not dispute court's analysis relying on Gilbert and Wallace).
140. The Martinez court never directly cited or discussed the PDA; it only referred to it parenthetically in a footnote citing a case. See Martinez, 49 F. Supp. 2d at 309 n.16 (citing Fejes).
141. Id. at 311.
142. As one commentator has argued, "[b]ecause Congress reversed the reasoning of Gilbert when it passed the PDA, presumably Congress did not intend to see the reasoning in it reemerge in a similar context." Kovacic-Fleischer, supra note 109, at 381.
143. 42 U.S.C. § 2000e(k) (1994).
144. See supra notes 85-94 and accompanying text (describing development of medical conditions analysis and citing cases that rely on it).
145. See Kovacic-Fleischer, supra note 109, at 380-83 (noting that breastfeeding does not properly fit within medical "disability" under PDA). Contra Olson, supra note 25, at 302-03 (arguing that breastfeeding should be considered "medical condition" for purposes of PDA analysis).
146. In the very first PDA case to reach the Supreme Court, the legislative history became an integral part of the Court's opinion. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678-82 & 678 nn.15-20 (1983) (interpreting congressional intent by extensively citing and quoting House Report, Senate Report, floor debates, and hearings on PDA); see also UAW v. Johnson Controls, Inc., 499 U.S. 187, 205-06 (1991) (citing House and Senate Reports for proposition that "legislative history confirms what the language of the PDA compels," that discrimination on mere "capacity" to become pregnant is sex discrimination); Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284-90 (1987) (proposing that Court "must examine the PDA's language against the background of its legislative history and historical context" and citing extensive legislative history).
147. See, e.g., Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990) (considering legislative history, but relying only on legislative debates that addressed PDA goal to ensure disability benefits for pregnancy related medical conditions), aff'd mem., 951 F.2d 351 (6th Cir. 1991); see also Moawad v. Rx Place, No. 95 CV 5243 (NG), 1999 WL 342759, at *6 (E.D.N.Y. May 27, 1999) (discussing congressional intent that employers treat pregnancy disabilities as all other temporary disabilities, but concluding generally that breastfeeding cannot ground "claim" under PDA); Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1491-92 (D. Colo. 1997) (citing Wallace analysis of PDA legislative history); McNill v. N.Y. City Dep't of Corr., 950 F. Supp. 564, 570 (S.D.N.Y. 1996) (noting legislative history focusing on coverage of medical conditions and citing Wallace analysis of PDA legislative history).
148. For example, in Wallace, the only legislative history referenced was the meaning of "related medical conditions" which led the court to conclude that "[n]othing in the Pregnancy Discrimination Act, or Title VII, obliges employers to accommodate the child-care concerns of breast-feeding female workers by providing additional breast-feeding leave not available to male workers." Wallace, 789 F. Supp. at 870; see also supra note 99 (identifying lower courts adopting medical conditions analysis).
149. See supra Part II.B (discussing intent of PDA). Furthermore, if courts are focusing on the medical conditions requirement in hopes of preventing a slippery slope to accommodation requirements, this concern is not a legitimate reason for restricting the PDA's protections. See infra Part III.C (discussing how accommodation analysis is inappropriate framework for applying antidiscrimination law).
150. The clear language of the Act states that discrimination "because of or "on the basis of sex" is "not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k) (1994) (emphasis added). Applying the doctrine of ejusdem generis, which instructs that illustrations of a class indicate how extensively the act was intended to apply, it becomes evident that these three terms are primary, but not exclusive, illustrations of the definition of sex. See Norman J. Singer, 2A Statutes and Statutory Construction § 47:18, at 288-89 (6th ed. 2000) ("The purpose for defining the class by illustrative particularizations accompanied by a general catchall reference is to determine how extensively the act was intended or should reasonably be understood to apply."); see also infra notes 145-46 (citing Supreme Court interpretation of language).
151. See Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998) (quoting Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825, 837 (1988), for rule that Court is "'hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law'"). Moreover, breastfeeding would seem to fit well within the definition of "sex" since, like the three terms added by the PDA, it is a sex-specific condition. See Singer, supra note 135, § 47:18, at 289 ("When people list a number of particulars and add a general reference like 'and so forth' they mean to include by use of the general reference . . . others of like kind."); see also Shdaimah, supra note 25, at 422-23 (suggesting that breastfeeding as condition specific to women is arguably within meaning of PDA). Alternatively, breastfeeding might be understood as part of "pregnancy" and "childbirth." Under such an interpretation, breastfeeding is not one of the nonenumerated definitions of sex discrimination, but rather the third phase of the biological continuum that includes pregnancy and childbirth. This approach would provide a sensible distinction between the gender-specific aspects of childbirth and the gender-neutral aspects of childrearing. See Reiter, supra note 21, at 2 (arguing that courts "could, but currently [do] not view breastfeeding as the final stage of the pregnancy cycle").
152. See supra note 131 (describing Supreme Court's reliance on legislative history); see also Singer, supra note 135, § 48:03, at 422-28 (describing "established practice in American legal processes" of considering relevant historical background of enactment as valuable tool in determining statutory objective).
153. See supra note 69 and accompanying text (citing Supreme Court description of PDA as "overturning" Gilbert); supra note 76 and accompanying text (noting Supreme Court's recognition that disability coverage was critical, but not only, concern of PDA).
154. The House Report notes: Although recent attention has been focused on the coverage of disability benefits programs, the consequences of other discriminatory employment policies on pregnant women and women in general has historically had a persistent and harmful effect upon their careers. Women are still subject to the stereotype that all women are marginal workers. . . . Therefore, the elimination of discrimination based on pregnancy in these employment practices in addition to disability and medical benefits will go a long way toward providing equal employment opportunities for women, the goal of Title VII of the Civil Rights Act of 1964. H.R. Rep. No. 95-948, at 6-7 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4754-55; see also Discrimination on the Basis of Pregnancy, 1977: Hearing on S. 995 Before the Subcomm. on Labor of the Senate Comm. on Human Res., 95th Cong. 34 (1977) (statement of Ethel Walsh, Vice-Chairman, EEOC) (stating: [D]espite some thoughts to the contrary, working mothers are seriously attached to the labor force . . . . They are not in the labor force to have a casual flirtation with the market, but to earn income. Discrimination on the basis of pregnancy makes it difficult for women to remain in the labor force and maintain the continuity of their family incomes when they have children.).
155. S. Rep. No. 95-331, at 3 (1977) (emphasis added). 141 H.R. Rep. No. 95-948, at 4, reprinted in 1978 U.S.C.C.A.N. 4749, 4752.
156. See supra notes 75-76 (explaining PDA application beyond medical benefits for pregnancy disability); see also Donaldson v. Am. Banco Corp., 945 F. Supp. 1456, 1464 (D. Colo. 1996) ("If Congress intended to treat pregnancy as a disability only, it would have enacted the PDA as part of disability legislation. Instead, Congress chose to incorporate the PDA as part of Title VII, an anti-discrimination statute."). In Donaldson, three female employees were sexually harassed about their breastfeeding and pregnancies upon their return to work. See id. at 1462. Interpreting the PDA broadly within the full context of Title VII, the Donaldson court noted that "[i]t would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place." Id. at 1464. The court rejected the defendant's claim that the scope of the PDA was "limited to the policies which impact or treat medical conditions relating to pregnancy or childbirth less favorably than other disabilities," and refused to dismiss the case. Id. Despite this analysis, the same court decided Fejes a year later, explicitly accepting the medical conditions standard, at least in the context of benefits discrimination. See supra notes 94, 99 (discussing Fejes case and its reliance on Barrash analysis). Such inconsistency in the court's analysis further weakens the persuasiveness of Fejes and those decisions relying on it.
157. Notably, in subcommittee hearings, Senator Hatch inquired why this particular legislation belonged in Title VII instead of as a "special pregnancy bill." Discrimination on the Basis of Pregnancy, 1977: Hearing on S. 995 Before the Subcomm. on Labor of the Senate Comm. on Human Res., 95th Cong. 44 (1977). Assistant Attorney General Days, speaking for the Department of Justice, responded: Because that piece of legislation [Title VII] represented, in my estimation, a determination by Congress to open opportunities up to minorities and women who had been discriminated against over many generations. It seems to me that pregnancy disability is a most modern example of that type of undue restriction upon the opportunities for women in employment. Id.
158. Unlike the first clause of the PDA, which defines the terms "because of" or "on the basis of sex" for general application to all Title VII antidiscrimination provisions, the second clause explains how the prohibition on discriminatory treatment specifically relates to receipt of medical benefits. See 42 U.S.C. § 2000e(k) (1994).
159. Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284-85 (1987) (stating: By adding pregnancy to the definition of sex discrimination prohibited by Title VII, the first clause of the PDA reflects Congress' disapproval of the reasoning in Gilbert. Rather than imposing a limitation on the remedial purpose of the PDA, we believe that the second clause was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied. (citation omitted)).
160. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 679 (1983) ("[C]ongressional discussion focused on the needs of female members of the work force rather than spouses of male employees. This does not create a 'negative inference' limiting the scope of the Act to the specific problem that motivated its enactment.").
161. See id. at 684 (holding that it violates Title VII, as amended by PDA, to provide only limited pregnancy-related benefits to female spouses of male employees while providing more extensive coverage to male spouses of female employees).
162. See UAW v. Johnson Controls, Inc., 499 U.S. 187, 211 (1991) (holding that Title VII, as amended by PDA, forbids "sex-specific fetal-protection" policy because it discriminates against women for their capacity to become pregnant); see also King v. Peters & Assocs., No. Civ. A. 98-2455-GTV, 2000 U.S. Dist. LEXIS 1015, at *9-*10 (D. Kan. Jan. 7, 2000) (finding that employer's discharge of plaintiff upon learning she "might be pregnant" was sufficient to challenge employer's proffered reason as pretextual).
163. H.R. Rep. No. 95-948, at 5 (1978) (emphasis added), reprinted in 1978 U.S.C.C.A.N. 4749, 4753.
164. S. Rep. No. 95-331, at 4 (1977).
165. The House Committee on Education and Labor added language specifically to exempt employers from covering abortion because it realized that since "the bill applies to all situations in which women are 'affected by pregnancy, childbirth, and related medical conditions,' its basic language covers decisions by women who chose to terminate their pregnancies." H.R. Rep. No. 95-948, at 7, reprinted in 1978 U.S.C.C.A.N. 4749, 4755.
166. As a matter of statutory interpretation, "the enumeration of exclusions from the operation of a statute indicates that the statute should apply to all cases not specifically excluded." Singer, supra note 135, § 47:23, at 317; see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992) (applying "familiar principle of expressio unius est exclusio alterius" to interpret Cigarette Labeling and Advertising Act of 1965).
167. When interpreting statutory language, the realization of congressional intent always should remain the primary objective. Philbrook v. Glodgett, 421 U.S. 707, 713 (1975) (explaining Court's objective to "ascertain the congressional intent and give effect to the legislative will"). Contra Frank H. Easterbrook, Legal Interpretation and the Power of the Judiciary, 7 Harv. J.L. & Pub. Pol'y 87, 87-94 (1984) (arguing that courts should not attempt to decipher legislative intent when interpreting statutes).
168. See supra note 79 and accompanying text.
169. See supra notes 78-80 and accompanying text (citing Senate Report).
170. See supra notes 141-46 and accompanying text; see also 123 Cong. Rec. 29,385 (1977) (statement of Sen. Williams) ("This legislation will prohibit not only discrimination in the provision of disability benefits . . . but it will also prohibit discrimination on the basis of pregnancy or conditions arising out of pregnancy for all employment-related purposes." ).
171. Thus, for example, in Wallace, the court should not have focused on whether the plaintiff's reason for taking leave was based on a "medical condition," see supra notes 95-98, but rather it should have determined whether the plaintiff was denied leave simply because she wanted to use it for breastfeeding or for a legitimate nondiscriminatory reason under the employer's leave policy.
172. See supra notes 98-99 and accompanying text (citing cases developing and relying upon childcare analysis).
173. See discussion supra Part I; see also Kovacic-Fleischer, supra note 109, at 380-81 (noting that courts often ignore biological reproductive differences between men and women).
174. Supra notes 22-28 and accompanying text (detailing physical consequences of breastfeeding).
175. The Senate Report indicates that the PDA was not intended to require childcare. S. Rep. No. 95-331, at 4 (1977) ("For example, if a pregnant woman wishes, for reasons of her own, to stay home to prepare for childbirth, or, after the child is born to care for the child, no disability or sick leave benefits need be paid."). However, Congress also emphasized that "[e]mployers who provide voluntary unpaid leave of this type may continue to do so, as long as it is done on a nondiscriminatory basis." Id. In contrast, the Family & Medical Leave Act (FMLA) does require employers to provide leave for childcare purposes, regardless of the existing benefit policy. 29 U.S.C. § 2612(a)(1)(A) (1994) (granting twelve workweeks of leave during any twelve-month period for childcare). The difference between the PDA and the FMLA further illustrates the difference between an antidiscrimination statute and an accommodation statute. See supra Part II.C.2 (discussing difference between accommodation and antidiscrimination analysis).
176. See supra notes 98-99 and accompanying text for examples of how courts already have used the childcare framework to dismiss breastfeeding-based claims.
177. See supra notes 25-28 and accompanying text (describing breastfeeding's palliative effects on physical discomforts caused by pregnancy and childbirth).
178. See supra Part I (discussing gender-specific consequences of breastfeeding).
179. See supra note 21 and text accompanying supra note 24 (discussing ability to stop lactation).
180. Supra notes 30-32 and accompanying text (detailing benefits of feeding with breast milk to child and society).
181. It is self-evident that only the mother can breastfeed or pump breast milk. Although a father can serve bottled breast milk, it is still the mother that must go through the process, time, and effort of expelling the milk.
182. Roe v. Wade, 410 U.S. 113, 153-54 (1973) (holding that women have constitutionally protected right to abortion).
183. See UAW v. Johnson Controls, Inc., 499 U.S. 187, 206 (1991) ("Congress made clear that the decision to become pregnant or to work while being either pregnant or capable of becoming pregnant was reserved for each individual woman to make for herself."); see also supra Part II.B. But cf. Greenberg, supra note 21, at 229-32 (arguing that PDA is ineffective in removing barriers between motherhood and work because it allows courts to use biologically restricted definitions of pregnancy to exclude "consequences" of pregnancy from protection).
184. See 124 Cong. Rec. 21,442 (1978) (statement of Rep. Tsongas) (stating that bill "would . . . put an end to an unrealistic and unfair system that forces women to choose between family and career-clearly a function of sex bias in the law"); see also Reiter, supra note 21, at 14 ("In enacting civil rights protections for pregnant women, our society made the laudable choice to accommodate reproductive difference so as to provide equality of opportunity."); supra notes 78-81 and accompanying text (discussing how PDA was enacted so that women would not feel need to choose between work or motherhood and could continue to advance in workforce).
185. See supra notes 163-67 and accompanying text (discussing import of gender-specific nature of breastfeeding); cf. Barnes v. Hewlett-Packard Co., 846 F. Supp. 442, 445 (D. Md. 1994) (noting that "[t]here is, in sum, a point at which pregnancy and immediate postpartum requirements - clearly gender-based in nature - end and gender-neutral child care activities begin," but also citing Barrash for proposition that breastfeeding is not medical condition related to pregnancy under PDA).
186. See supra notes 108-11 and accompanying text for a discussion of the difference between discrimination and accommodation in the context of the PDA.
187. See supra Part II.C.2 (discussing and citing case holdings that treat breastfeeding-based sex discrimination claims as accommodation requests and therefore reject them).
188. See supra note 161 (citing Senate Report as evidence of congressional intent that PDA require equal distribution of benefits, even if not requiring accommodation). At least one court seems to have indicated a minimal recognition of the distinction between accommodation and discrimination. In O'Hara v. Mt. Vernon Bd. of Educ., 16 F. Supp. 2d 868 (S.D. Ohio 1998), the district court referred to the principles set forth by the EEOC, suggesting that, under Title VII, "leave for childcare purposes be granted on the same basis as leave which is granted to employees for other non-medical reasons." Id. at 885 (citing Barnes, 846 F. Supp. at 444). Thus, the court recognized that even if time off for childcare is an "accommodation," employers should not withhold that accommodation when requested by a mother once similar accommodations are offered to other employees for similar purposes. However, in O'Hara, since the plaintiff "ha[d] made no claim of discrimination based on her pregnancy sick leave or the PDA," id., the court had no opportunity to discuss, specifically, the scope of the PDA's coverage, see id. at 885-86 (explaining that plaintiff did not raise claim of discriminatory treatment based on her pregnancy but claimed that more stringent rules for parental leave than for other types of leave disparately impacted women employees generally).
189. See 42 U.S.C § 2000e(k) (1994) (requiring that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work"). For example, an employer's personal leave policy may be a discretionary policy circumscribed by any number of considerations, or one in which employees have a limited (or unlimited) number of personal days to use as they choose. In the latter case, it would be discriminatory to forbid an employee to use her personal days for breastfeeding. In the former, specific facts showing common practices or standard reasons for granting discretionary leave would reveal whether the plaintiff presented sufficient evidence of a discriminatory denial of leave.
190. See H.R. Rep. No. 95-948, at 4 (1978) (citing House position on PDA's impact on employer distribution of medical benefits), reprinted in 1978 U.S.C.C.A.N. 4749, 4752; S. Rep. No. 95-331, at 5 (1977) (citing Senate position on same); infra note 179 (citing EEOC interpretation of medical disability requirements).
191. For example, in McNill v. New York City Department of Correction, 950 F. Supp. 564 (S.D.N.Y. 1996), the court faced this very problem. The employer offered a very elaborate and specific policy regarding personal absences, medical leaves, and discretionary benefits. Under a collective bargaining agreement, employees were entitled to "unlimited paid sick leave." Id. at 567. "To prevent abuse of this policy, employees who report[ed] sick for any reason except hospitalization, on twelve or more work days within a twelve month period" risked the loss of discretionary benefits. Id. Discretionary benefits included assignment of a steady tour, access to voluntary overtime, promotions, and secondary employment. Id. In addition, absences that "occurr[ed] when an officer [was] pregnant or as a result of the condition of being pregnant" along with the six week maternity leave were not counted toward the employee's absentee status. Id. Rather than relying on the terms of this policy to determine if the plaintiff was treated unfairly after taking excessive time off to breastfeed, the court became absorbed with an analysis of whether the PDA protected the plaintiff's right to unlimited absence, without loss of discretionary benefits, due to pregnancy. See id. at 569.
192. See supra note 112 (describing Wallace case).
193. The EEOC advises this approach in a sample Q & A in its regulatory guidelines: Q. Must an employer grant leave to a female employee for childcare purposes after she is medically able to return to work following leave necessitated by pregnancy, childbirth or related medical conditions? A. . . . [O]rdinary title VII principles would require that leave for childcare purposes be granted on the same basis as leave which is granted to employees for other non-medical reasons. Questions and Answers on the Pregnancy Discrimination Act, 29 C.F.R. § 1604, app. 18(A) (2000).
194. The spate of cases removing breastfeeding from PDA protections already has led Representative Carolyn Maloney to introduce a bill amending the PDA to clarify that it was intended to prevent discrimination against breastfeeding employees. See Pregnancy Discrimination Act Amendments of 2000, H.R. 3861, 106th Cong. §§ 2(a)(9), 3 (2000) (stating that courts improperly have excluded breastfeeding women from PDA and expressly adding word "lactation" after "childbirth" in definition of sex), WL 1999 Cong US HR 3861. The bill was pending in committee when the 106th Congress adjourned. Thomas: Legislative Information on the Internet, http://thomas.loc.gov/bss/ d106query.html.
195. Some courts have stated their belief that a congressional amendment would be necessary to include breastfeeding within the scope of the PDA. See Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999) ("[I]f breast pumping is to be afforded protected status, it is Congress alone that may do so."); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 870 (W.D. Ky. 1990) (reasoning that "[i]t is not the province of this court to add to the legislation by judicial fiat" because if Congress wanted breastfeeding to be covered by PDA "it could have included [it] in the plain language of the statutes"), aff'd mem., 951 F.2d 351 (6th Cir. 1991). These statements are highly reminiscent of the Gilbert Court's conclusion that "[w]hen Congress makes it unlawful for an employer to 'discriminate . . . because of . . . sex . . ." without further explanation of its meaning, we should not readily infer that it meant something different from what the concept of discrimination has traditionally meant." Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 145 (1976). However, when Congress responded with the PDA, it emphasized that the Court was misled in this assumption. It stated that the new amendment would "reflect no new legislative mandate of the Congress . . . . If, however, Congress were not to clarify its original intent, and the Supreme Court's interpretations of Title VII were allowed to stand, Congress would yield to an intolerable potential trend in employment practices." H.R. Rep. No. 95-948, at 3-4 (emphasis added), reprinted in 1978 U.S.C.C.A.N. 4749, 4751-52.