Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [70]
A doctor friend of mine says she believed sex discrimination was a thing of the past until she became pregnant. In medical school, she had a professor who became visibly pregnant over the course of the semester without ever making reference to it. “She would talk about obstetrics without ever mentioning her own enormous belly,” my friend recollects. “I thought it was completely bizarre at the time, but now I understand.” Now, as a doctor and mother, she feels the bite of the second shift. “I love my husband, but he can make decisions to privilege work over our son in a way I can’t,” she says. “I don’t experience that as a choice. Then I go into work and a colleague who brings his infant son to a meeting is praised for being a good dad. This makes me crazy—if I did that, it would be career suicide. Women do more child-care at home, then have to hide it more at work. Men can do less, and can hide it less.”
Mothers are the queers of the workplace. It is hard to grasp this point, as mothers seem like paragons of normalcy. But separate-spheres ideology means an identity that is normal in one sphere will often be queer in the other. For this reason, one of my students deliberately hid the fact that she had a husband and child from her professors until she secured a clerkship. When I learned of this, I flashed on how I kept Paul away from my law school professors and classmates. And I feel a rush of admiration when a junior colleague speaks out against the scheduling of workshops after business hours because of its exclusionary effect on mothers like her. I identify with the courage it takes to “flaunt” such an identity in the extreme vulnerability of pretenured life.
What will laws prohibiting sex discrimination do about disadvantage based on pregnancy or motherhood? The Supreme Court delivered a shocking answer to this question in the 1974 case of Geduldig v. Aiello. The Court held that discrimination on the basis of pregnancy was not sex discrimination under the Constitution because not all women got pregnant, or in the Court’s words, because the group of “nonpregnant persons … includes members of both sexes.”
When I teach this case, my students laugh nervously. Is the Supreme Court really saying pregnancy discrimination is not sex discrimination? I not only answer in the affirmative, but suggest the Court is making a familiar move, protecting the unchosen but not the chosen aspects of an identity. Just as courts protect skin color but not language, here the Court is protecting chromosomes but not pregnancy. What makes the logic in the pregnancy case harder to swallow is that while all individuals can learn a language, only women can get pregnant. I ask my students why the Geduldig Court chooses in 1974 to cast pregnancy as unprotected conduct, rather than casting the capacity to get pregnant as a protected biological status. They soon realize the case was decided the year after Roe v. Wade. As law professor Dan Danielsen has noted, once Roe protected a woman’s right to choose, it was a short step to defining that choice as outside the ambit of the Court’s equality protections. Geduldig has never been overruled, which means the state can still discriminate on the basis of pregnancy with relative impunity.
By passing the Pregnancy Discrimination Act of 1978, Congress prohibited employers from discriminating on the basis of pregnancy. When women face employment discrimination as mothers, however, their lawyers must make subtler arguments, as the statute does not explicitly protect the status of being a mother. Courts have gone both ways on those arguments, sometimes holding that discrimination against