Do you remember the Equal Rights Amendment? Neither did I until 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.
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.
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.
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.
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.
In his opinion for the court, Justice Marshall said California`s law merely allows women as well as men to have families without losing their jobs. In dissent, Justice White, joined by Chief Justice Rehnquist and Justice Powell, argued that the PDA says clearly that pregnant employees ``shall be treated the same for all employment-related purposes`` as non-pregnant employees. That language ``leaves no room for preferential treatment of pregnant workers.`` Contrary to the mandate of the PDA, California requires an employer to have a disability-leave benefit for pregnancy even if the employer has none for other disabilities. Congress` interest was not to put pregnancy in a class by itself for favorable treatment.
The three dissenters, generally considered conservatives, probably were faithful to the liberal intention of Congress in 1978, when ``equal treatment`` was more consciously praised than pondered. For the majority, the liberal Marshall was doing what conservatives often do, granting broad deference to the discretion of legislative branches in state governments.
Now, suppose the ERA (``Equality of rights shall not be denied or abridged by the United States or any state on account of sex``) had been ratified. It was designed to trigger an avalanche of litigation by making almost every social policy touching sexual status open to constitutional challenge. California`s statute could then have been challenged by the employer as incompatible with the ERA as well as the PDA. And California`s statute might have fallen, a law benefiting women felled by the ERA, supposedly a feminist scythe.
Eight days after deciding the California case, the Supreme Court ruled in the case of a Missouri woman who became pregnant and was granted, in accordance with her employer`s policy, ``leave without guarantee of reinstatement.`` When she sought reinstatement and was told there were no positions available, she filed for unemployment benefits.
She was refused because Missouri disqualifies anyone who leaves work ``without good cause attributable to his work or to his employer.`` Missouri ruled that she ``quit because of pregnancy,`` therefore voluntarily. A circuit court sided with the woman, saying Missouri`s law was inconsistent with a federal law barring the use of pregnancy as an excuse for denying unemployment benefits to otherwise eligible women.
However, Missouri`s Supreme Court ruled against the woman, saying that federal law only prevented state law from singling out pregnancy for unfavorable treatment. The U.S. Supreme Court has now agreed, without dissent. It has said that Missouri has an unusually narrow definition of what is meant by losing a job ``for good cause`` (i.e., a reason directly attributable to the work or the employer). However, pregnancy is not the only temporary disability that does not qualify a worker for benefits.
The Missouri woman did not claim that pregnant women were treated unlike other workers who became unemployed for reasons not causally connected to their work or their employer. Rather, she said the federal law mandated special treatment for pregnancy. Her argument was, of course, incompatible with the ERA`s ``letter and spirit.``
Remember when supporters said the ERA was needed to ``put women in the Constitution``? These two recent cases show that the careful adjustment of policy pertaining to the status of the sexes can and should continue without any such crude instrument.