April 25, 2013
Forty years ago, the American Civil Liberties Union (ACLU) board of directors determined that women’s rights should be the organization’s highest priority. Then-executive director Aryeh Neier, created the ACLU Women’s Rights Project and named Ruth Bader Ginsburg as the first director. Since then, Ginsburg has become a justice on the United States Supreme Court, and the Women’s Rights Project (WRP) has won many landmark court decisions, achieved significant legislative successes, and shifted public awareness and understanding of women’s equality.
Yet many of the struggles that Ginsburg and her colleagues at WRP fought in the 1970s, we continue to fight today. Indeed, the top priorities of WRP in its first decade remain our priorities four decades later: pregnancy discrimination, women’s role in the military and single-sex education based on gender stereotypes.
Ginsburg and her colleagues – like others in the “second wave” women’s movement of the 1970s – recognized that economic security was necessary for women’s autonomy and independence. They identified employment discrimination as a primary source of women’s inequality. Accordingly, an initial target of both litigation and legislative advocacy was unequal employment opportunities.
In order to overcome this obstacle, Ginsburg and her colleagues knew they would have to dismantle the powerful stereotype that the world of work belonged to men while women’s place was in the home. Thus began the effort to unseparate the “separate spheres” of work and family life. Critical to bridging this divide was overcoming the vast gulf of pregnancy discrimination. Society at large in the 1970s viewed women’s primary roles as wife and mother. Barefoot and pregnant was where women belonged.
FIRED FOR BEING PREGNANT
Indeed, it was common practice for an employer to fire a woman as soon as the employer learned the employee was pregnant. For example, one of the early cases that WRP litigated was Cleveland Board of Education v. LaFleur, in which the Supreme Court struck down a policy requiring pregnant teachers to go on mandatory leave midway through their pregnancies.
Eradicating pregnancy discrimination, however, proved to be an uphill battle. In the 1970s, the ACLU participated in a pair of cases in which the Supreme Court held that pregnancy discrimination was not sex discrimination under the Constitution or under Title VII of the Civil Rights Act, because the discrimination was against “pregnant persons”, and both women and men could be not pregnant.
In response to these Supreme Court decisions, the ACLU led a coalition of women’s groups that successfully lobbied Congress to amend Title VII by enacting the Pregnancy Discrimination Act of 1978 (PDA) to make clear that indeed Congress considered discrimination against pregnant women to be sex discrimination.
Unfortunately, today many employers and courts still seem not to understand that pregnancy discrimination is sex discrimination. A number of courts around the country have ruled in favor of employers who refuse to make minor modifications to jobs for pregnant women, even though they routinely provide such accommodations to other employees who are similarly temporarily unable to perform all aspects of their jobs.
In the case of Peggy Young v. UPS in the 4th Circuit, we filed a friend of the court brief on behalf of numerous women’s rights organizations, arguing that the law required UPS to offer temporary accommodations for a pregnant package driver, in light of its policy of offering such accommodations for workers injured on the job, workers who lost their driving licenses, and workers covered by the Americans with Disabilities Act.
The Court of Appeals ruled in favor of UPS and held that requiring employers to provide similar accommodations for pregnant workers would elevate pregnant employees to “most favored nation” status. Court decisions like Young have prompted women’s rights organizations to go back to Congress, which introduced a bill called the Pregnant Workers Fairness Act to make clear that employers may not refuse to accommodate pregnant workers.
Advocates are also responding to bad court decisions by trying to fix the problem of pregnancy push-out at the state level. The ACLU of Maryland and others, including Peggy Young, successfully pushed for enactment of a law that will help ensure that pregnant workers in Maryland can no longer be forced off the job. Similar bills have been introduced in New York, Iowa, Illinois, and Maine. Other states, including Michigan, Connecticut and California already have such protections.
To continue reading Lenora’s insights into women’s rights and the work the ACLU Women’s Rights Project has done to advance equality visit Trustlaw.
For a more in-depth examination of the accomplishments of the Women’s Rights Project under Ginsburg’s leadership and all that remains to be done to combat gender stereotypes, download a copy of Fighting Sex Stereotypes in the Law: Reflections on 40 Years of the ACLU’s Women’s Rights Project.
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