University of Florida Levin College of Law UF Law Scholarship Repository UF Law Faculty Publications Faculty Scholarship 4-1986 Maternity Leave: Taking Sex Differences Into Account Nancy E. Dowd University of Florida Levin College of Law, [email protected] Follow this and additional works at: https://scholarship.law.ufl.edu/facultypub Part of the Labor and Employment Law Commons Recommended Citation Nancy E. Dowd, Maternity Leave: Taking Sex Differences Into Account, 54 Fordham L. Rev. 699 (1986), available at http://scholarship.law.ufl.edu/facultypub/433 This Article is brought to you for free and open access by the Faculty Scholarship at UF Law Scholarship Repository. It has been accepted for inclusion in UF Law Faculty Publications by an authorized administrator of UF Law Scholarship Repository. For more information, please contact [email protected]. MATERNITY LEAVE: TAKING SEX DIFFERENCES INTO ACCOUNT NANCYE. DOWD* INTRODUCTION TrofE reconciliation of employment responsibilities with the demands Xof childbirth and child-rearing remains a critical issue in the achieve- ment of true equal employment opportunity for women. One of the prin- cipal factors contributing to the difference in the employment status of men and women is the resistance of the workplace to accommodating childbirth and parental responsibilities. This resistance has a dispropor- tionate impact on women who by their sex bear the burden of pregnancy, and who by social custom bear the primary responsibility for child- rearing. Traditionally employers regarded pregnancy and childbirth as incom- patible with work and therefore as a justification for barring pregnant women from the workplace.' The assumption that once women became mothers they would stay at home to raise their children, rather than work, underlay the relegation of working women to the status of margi- nal or temporary employees.2 With the passage of Title VIII and the Pregnancy Discrimination Act (PDA),4 the primary focus of litigation has been to remove the barriers to equal employment opportunity created by these policies. Although this effort has been largely successful,5 simply removing these impedi- ments has not been enough. Pregnancy continues to hamper women's employment opportunities, and childcare remains a primarily female responsibility.6 A wholesale restructuring and reexamination of the workplace is needed. The existing employment structure must ensure actual, not merely formal equality of employment opportunity. This requires not only eliminating facially neutral practices that disadvantage pregnant women, but also implementing affirmative policies that redress the dis- * Associate Professor, Suffolk University Law School; B.A. 1971, University of Connecticut; M.A. 1973, University of Illinois; J.D. 198 1, Loyola University of Chicago. I would like to express my appreciation to my research assistants, Amy Holmes-Hein and Susan Shipley. I would also like to thank my colleagues and friends who critiqued vari- ous drafts of the Article, particularly Marc Greenbaum, Gerard Clark, Valerie Epps, Stephen Hicks and Laurence Stanton. The views expressed herein are my own. 1. See infra notes 36-40 and accompanying text. 2. See infra note 40 and accompanying text. 3. The Civil Rights Act of 1964, Pub. L. No. 88-352, tit. vii, §§ 701-716, 78 Stat. 241, 253-66 (codified as amended at 42 U.S.C. § 2000e (1982)). 4. Pub. L. No. 95-555, 92 Stat. 2076 (codified as amended at 42 U.S.C. § 2000e(k) (1982)). 5. See infra notes 43-45 and accompanying text. 6. See infra notes 23-72 and accompanying text. FORDHAM LAW REVIEW [Vol. 54 proportionate impact of the existing structure on pregnant women. Even more fundamentally, the underlying assumptions of the structure of the workplace must be examined, particularly assumptions concerning the relationship between work and family responsibilities. The existing structure assumes that those responsibilities will be split between one working spouse and one non-working spouse.7 This has a disproportion- ate impact on working women because they remain primarily responsible for childcare and housework.' This Article focuses on restructuring the workplace in the context of maternity leave. Although most women are no longer, and indeed gener- ally cannot be, required to take maternity leave,9 many are not guaran- teed leave or may be provided only with inadequate leave.10 A minority of states have addressed this problem by enacting statutes requiring that all employers provide job-protected maternity leave.I1 Two of the stat- utes, the California and Montana provisions, have been challenged as discriminatory12 under Title VII 3 and the equal protection clause, 4 and the Supreme Court has recently agreed to consider the validity of the California provision.15 This Article considers whether the gender-specific approach incorpo- rated in state maternity leave provisions is a legally valid means to restructure the workplace. Part I presents an overview of current mater- nity leave policies and dispels the common presumption that maternity 7. See Freedman, Sex Equality, Sex Differences, and the Supreme Court, 92 Yale L.J. 913, 919-20, 946-47 (1983); Law, Women, Work, Welfare, and the Preservationof Patriarchy,131 U. Pa. L. Rev. 1249, 1251-52, 1279-80 (1983) [hereinafter cited as Law I]; see also Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497, 1499-1501 (1983) (women have traditionally been excluded from the workplace in exchange for a central role in the home); Rifkin, Toward a Theory of Law and Patriarchy,3 Harv. Women's L.J. 83, 85-86 (1980) (although American women have been working outside the home for many years, women are still considered to belong in the home). Indeed, a recent study reported that less than 10% of American families fit within the pattern of a married couple with children where the husband is the sole pro- vider. See Family Policy Panel, Economic Policy Council of UNA-USA, Work and Family in the United States: A Policy Initiative v (1985) [hereinafter cited as Work and Family]. For a fascinating look at how assumptions about family and gender roles affect the welfare system, as opposed to the workplace, see Law I, supra. 8. See Frug, Securing Job Equalityfor Women: Labor Market Hostility to Working Mothers, 59 B.U.L. Rev. 55, 56-57, 58 n.29 (1979). See infra notes 30-31. 9. See infra note 44 and accompanying text. 10. See infra notes 46-72 and accompanying text. 11. See infra notes 93-158 and accompanying text. 12. See California Fed. Say. & Loan Ass'n v. Guerra, 758 F.2d 390 (9th Cir. 1985), cert.granted, 106 S. Ct. 783 (1986); Miller-Wohl Co. v. Commissioner of Labor & Indus., 692 P.2d 1243 (Mont. 1984), appealfiled,54 U.S.L.W. 3064-65 (U.S. Mar. 27, 1985) (No. 84-1545). For a discussion of the state statutes in question, see infra notes 102-18 and accompanying text. 13. 42 U.S.C. § 2000e (1982). 14. U.S. Const. amend. XIV, § 1. 15. California Fed. Say. & Loan Ass'n v. Guerra, 106 S. Ct. 783 (1986) granting cert. to 758 F.2d 390 (9th Cir. 1985). 1986] MATERNITY LEAVE leave is "virtually universal." Part II analyzes the two primary solutions to the maternity leave problem suggested by current theories of discrimi- nation, and argues in favor of an approach that takes into account sex differences. Part III discusses the structure of the state maternity leave provisions, and the legal issues raised by those provisions under a sex differences approach. Part IV examines whether the courts have consid- ered those issues in the legal challenges brought to date of the state provi- sions. Although the courts have thus far upheld the state provisions against challenges brought under both Title VIII6 and the equal protec- tion clause,17 they have done so largely by avoiding both the question of whether sex differences can be taken into account by gender-specific leg- islation, and if so, whether limits can be imposed on such legislation. Those questions must be confronted, and indeed the Supreme Court will have the opportunity to do so in resolving the issues raised by the pend- ing California maternity leave statute case. Part V suggests that although the Supreme Court has adopted a differences approach under both constitutional and statutory analysis, it is an approach that is neither clear in theory nor consistent in application. The questions raised by the Court's analysis, and a suggested refinement of its ap- proach, are set forth in the final section. I. WORKING WOMEN AND MATERNITY LEAVE The single most dramatic change in the composition of the workforce in the past twenty years has been the increased proportion of women, from roughly one-third of the workforce in 1960 to nearly one-half of the workforce in 1982.1' The current overall labor participation rate of wo- men is 52.6%. Even more significantly, over two-thirds of women be- tween twenty and forty-five years old are in the workforce.20 Because so many women are working during their childbearing years,2 an estimated 85% of all working women will become pregnant at least once during their worklife.22 16. 42 U.S.C. § 2000e (1982). 17. U.S. Const. amend. XIV, § 1. 18. Consumer Research Center, The Working Woman-A Progress Report 3 (1984) [hereinafter cited as Working Woman]. During the same 20-year period, the number of males employed increased by 27% while the number of employed females increased by three times that rate. Id.; see also Bureau of Labor Statistics, U.S. Dep't of Labor, Hand- book of Labor Statistics 6-7 (1983) (from 1960-1982, the number of male workers in- creased by approximately 26%) [hereinafter cited as HLS].