\\jciprod01\productn\H\HLC\46-2\HLC206.txt unknown Seq: 1 6-JUN-11 13:59 The Costs of Reproduction: History and the Legal Construction of Sex Equality Deborah Dinner† Today, legal and political actors argue that sex equality does not re- quire society to share the costs of pregnancy, childbirth, and childrearing with individual women and private families. Courts interpret the Pregnancy Discrimination Act of 1978 (“PDA”), amending Title VII of the Civil Rights Act of 1964, to prohibit only market-irrational discriminatory animus. Polit- ical pundits oppose paid parental-leave legislation as a mandate that un- fairly subsidizes private reproductive choice by shifting its costs onto the larger public. This Article uses novel historical research to deconstruct the bounda- ries between cost sharing and sex equality. I recover the redistributive dimensions of the vision for sex equality that legal feminists articulated from the 1960s through the 1980s. Legal feminists’ challenge to the family-wage system entailed efforts to redistribute the costs of reproduction between wo- men and men within the home and between the family and society. The his- tory of feminist mobilization, anti-feminist counter-mobilization, and norm evolution in law and policy, illustrates the overlap in the normative purpose and cost effects of antidiscrimination and cost-sharing mandates. To realize women’s right to social and economic independence, feminists pursued clas- sic antidiscrimination mandates, the accommodation of pregnancy in the workplace, and affirmative social-welfare entitlements related to caregiving. All of these reforms, moreover, shifted the costs of reproduction from indi- vidual women to the larger society. The history related in this Article holds significant implications for con- temporary legal and political debates. The history suggests that courts adopt an artificially narrow perspective when they interpret the PDA to fall short of requiring structural change in the workplace. It also suggests that Congress might build upon an evolving commitment to cost sharing as a critical component of sex equality by augmenting the entitlements created by the Family and Medical Leave Act of 1993 (“FMLA”). †Ph.D. Candidate, Department of History, Yale University; J.D., Yale Law School, 2005. For helpful conversations and suggestions regarding various drafts of this Article, I would like to thank David Blankfein-Tabachnick, Alexandra Block, Risa Goluboff, Christine Jolls, Sophia Lee, Serena Mayeri, Caleb McArthur, Joanne Meyerowitz, and Reva Siegel. I am also grateful for the insights of faculty at law schools where I had the opportunity to present this Article, including individuals too numerous to name. I owe thanks to Katherine Pappas and to the editorial team at CR–CL for their superb assistance. \\jciprod01\productn\H\HLC\46-2\HLC206.txt unknown Seq: 2 6-JUN-11 13:59 416 Harvard Civil Rights-Civil Liberties Law Review [Vol. 46 Introduction .................................................... 417 R I. The Redistributive Dimensions of Sex Discrimination Law . 422 R A. Stereotyping, Pregnancy, and Costs: General Electric Co. v. Gilbert ....................................... 423 R B. The Pregnancy Discrimination Act of 1978 and the Problem of (Non)-Neutral Employment Policies ........ 431 R C. Pregnancy-Related Disparate-Impact Claims under Title VII ................................................. 435 R D. Beyond Disparate Impact: The Family and Medical Leave Act of 1993 ................................... 440 R II. The Legal Feminist Vision for Sex Equality, 1964-1974..... 442 R A. The Protective Laws Debate and the 1960s Transformation in Legal Feminism .................... 444 R B. Pregnancy-Discharge Policies and Constitutional Sex Equality ............................................ 447 R C. The Creation of the Temporary Disability Model for Pregnancy .......................................... 449 R i. The Challenge of Pregnancy Discrimination ....... 452 R ii. The Aspirations for the Temporary Disability Paradigm ....................................... 453 R iii. Mobilization and Administrative Adoption ......... 456 R D. Feminist Childcare Activism .......................... 457 R III. Norm Evolution in the Supreme Court & Congress, 1974- 1987 ................................................... 464 R A. The Supreme Court Decisions in Geduldig v. Aiello and Gilbert .............................................. 464 R B. The Congressional Override of Gilbert: The Pregnancy Discrimination Act of 1978 ........................... 469 R C. The Affirmation of Accommodation as a Dimension of Antidiscrimination ................................... 473 R IV. Sex Equality and Cost Sharing in Contemporary Law and Policy .................................................. 477 R A. Gilbert’s Shadow .................................... 478 R i. Sex-Unique Characteristics ....................... 479 R ii. Comparative Baselines in Disparate-Treatment Cases ........................................... 482 R iii. Disparate-Impact Claims under the PDA .......... 485 R B. Cost Sharing and Social-Welfare Policy ............... 490 R i. The Redistributive Dimensions of Contemporary Equal Protection Doctrine ....................... 490 R ii. Future Legislative Reform ........................ 492 R Conclusion ..................................................... 495 R \\jciprod01\productn\H\HLC\46-2\HLC206.txt unknown Seq: 3 6-JUN-11 13:59 2011] The Costs of Reproduction 417 INTRODUCTION Biological reproduction and caring for young children incurs economic costs. For female employees, the costs of reproduction may include the medical expenses of pregnancy and childbirth; lost income during periods of pregnancy- and childbirth-related disability; and costs associated with reen- try to the workforce, if childbearing women lose their jobs.1 Employers may incur the costs of including pregnancy and childbirth within medical and temporary disability insurance benefits; the administrative costs of providing leave when a pregnant employee is disabled; and the cost of accommodating some women’s changed capacity to perform their job duties during preg- nancy.2 Childrearing may cost a parent lost investment in human capital, when they forego education or career advancement to perform caregiving in the home. Childrearing is also expensive, as employees replace parental caregiving with care by a third party. From the mid-1960s through the 1980s, legal and political debates raged over how to allocate the costs of reproduction. Participants disputed whether individual women, the private family, employers, or the state should shoulder responsibility for the costs of reproduction. Diverse and often op- posing groups weighed in on these debates, including employers and union leaders, judges and politicians, feminists and social conservatives. In this Article, I draw upon novel historical research to shed new light on the nor- mative content of contemporary doctrinal and policy debates about how to allocate the costs of reproduction.3 Today, legal and political actors sever the issue of cost sharing from that of sex equality. This pattern emerges both in courts’ interpretation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (“PDA”),4 and in political arguments about work-family policy. Courts often interpret the PDA to prohibit only discrim- inatory animus against pregnant women. They hold that the PDA does not remedy sex-neutral policies, such as harsh absenteeism or meager sick-leave policies, even when these policies disproportionately exclude childbearing 1 Samuel Issacharoff & Elyse Rosenblum, Women and the Workplace: Accommodating the Demands of Pregnancy, 94 COLUM. L. REV. 2154, 2166 (1994). 2 These costs imposed on employees and employers are not independent of each other, but rather interrelated. On the relationship between rational statistical discrimination and women’s lesser investment in their human capital, see Edward J. McCaffery, Slouching Towards Equal- ity: Gender Discrimination, Market Efficiency and Social Change, 103 YALE L.J. 595 (1993). 3 Feminist scholars have critiqued the application of market metaphors and economic analyses to justice issues related to sexuality and the family. See, e.g., Katharine T. Bartlett, Rumpelstiltskin, 25 CONN. L. REV. 473, 474 (1993); Martha Albertson Fineman, A Legal (and Otherwise) Realist Response to “Sex as Contract,” 4 COLUM. J. GENDER & L. 128, 132–36 (1994). Attention to the question of how to allocate the costs of reproduction, however, is a critical issue of distributive justice of central importance to sex equality. 4 Pub. L. No. 95-555, 92 Stat. 2076 (codified as amended at 42 U.S.C. § 2000e(k) (2006)). \\jciprod01\productn\H\HLC\46-2\HLC206.txt unknown Seq: 4 6-JUN-11 13:59 418 Harvard Civil Rights-Civil Liberties Law Review [Vol. 46 women from the workplace.5 In the political arena, pundits argue that sex equality does not require society as a whole to subsidize individuals’ private reproductive decisions. By contrast, this Article argues that cost sharing is a critical component of sex equality. I seek to deconstruct the dichotomy between cost sharing and sex equality via contributions to both historical and normative legal lit- eratures. First, I contribute to a nascent historical literature that revises the conventional understanding of legal feminism in the sixties and seventies.6 The conventional narrative is that legal feminists—advocates using the