See, We Don't Need The ERA
Do you remember the Equal Rights Amendment? Neither did I until I was reminded of its forgettable nature by two recent Supreme Court decisions. Both concerned the rights of pregnant women. Both illustrated the problematic nature of legislative mandates of equal treatment of the sexes.</br></br>California's fair-employment statute requires employers to provide unpaid leave and reinstatement to employees who become pregnant. A receptionist who took leave and then sought reinstatement was told there was no opening. She complained to the state fair-employment office, but the employer said California's law is inconsistent with and preempted by Title VII of the 1964 Civil Rights Act as amended by the Pregnancy Disability Act (PDA) of 1978.</br></br>The 1964 act banned discrimination on the basis of sex, but in 1976 the Supreme Court held that discrimination on the basis of pregnancy was not sex discrimination under Title VII. So in 1978, Congress brought discrimination on the basis of pregnancy under Title VII.</br></br>The California employer argued that if it complied with California's statute, it would be vulnerable to charges of reverse discrimination brought by temporarily disabled males who do not receive the same entitlement as females disabled by pregnancy. A district court agreed, saying that California's law mandates preferential treatment for females; that Title VII neutrally bans special treatment (i.e., for both sexes), and that state law must yield to federal law.</br></br>But an appeals court reversed, arguing that Title VII does not demand that state laws "be blind to pregnancy's existence," and that Congress only intended to put a floor below which pregnancy disability benefits may not fall, not a ceiling above which they may not rise. Now the Supreme Court has upheld that appeals court and the woman.