Prenancy at Work: Sex Equality, Reproductive Liberty, and the Workplace, 1964-1993.

摘要

This dissertation examines feminists' legal imagination and advocacy regarding the relationship between sex equality and reproductive liberty, from the civil rights era through the Reagan era. I demonstrate that feminists understood the legal, social, and economic regulation of pregnancy, childrearing, and caregiving as central problems of sex equality. The dissertation enriches a nascent literature on the history of feminism and anti-feminism in the late twentieth century. I join scholarship showing a gap between legal feminists' vision and the Supreme Court's sex discrimination jurisprudence. By focusing on legislative, administrative, and union advocacy, as well as litigation, I highlight the redistributive dimensions of legal feminism.;I argue that feminists held commitments to two interrelated ideals: the elimination of sex-role stereotypes under law and social protection for caregiving. They advocated for equal employment opportunity, as well as an egalitarian division of caregiving labor between women and men, and a shifting of the costs of reproduction from the private family to employers and the state. Opposition to feminist objectives, however, made it difficult to fuse a commitment to ending sex-role stereotypes under the law and to social protection. In particular, three socio-political trends placed constraints on feminists' legal vision and policy objectives: market conservative opposition to redistribution, social conservative fidelity to traditional gender norms, and the tenacity of the sexual division of labor within the family. As a result, heated controversies forced feminists to prioritize between their two broad commitments---sex neutrality and social protection---and splits in the movement emerged repeatedly.;The dissertation analyzes how feminist argumentation evolved in a dialectical relationship with the ideologies and strategies of market and social conservatives. In the mid to late 1960s, a gender-protective legal regime that had prevailed since the New Deal rapidly eroded. The enactment of Title VII of the Civil Rights Act of 1964, the consolidation of a network of feminist attorneys, and working-class women's legal activism placed a new emphasis on sex equality. But what would equality mean? The close of the 1960s was a moment of unstable possibility. Feminists pursued substantive equality via antidiscrimination law and affirmative entitlements. They made rights claims to transform childrearing structures, the legal regulation of pregnancy in the workplace, and the hours of work for men as well as women.;Of these three claims, the temporary disability paradigm for the legal regulation of pregnancy survived into the 1970s. Wielded by labor and legal feminists, the paradigm brought an end to pregnancy dismissal policies. In Cleveland Board of Education v. LaFleur, the Supreme Court struck down these policies as a violation of the Due Process Clause of the Fourteenth Amendment. Feminists encountered greater resistance when they tried to use the temporary disability paradigm to achieve economic security for childbearing workers. In Geduldig v. Aiello and General Electric Co. v. Gilbert, the Court held that the exclusion of pregnancy from otherwise comprehensive insurance schemes violated neither constitutional nor statutory guarantees of sex equality. Feminists turned from the Court to Congress, achieving a victory when Congress passed the Pregnancy Discrimination Act of 1978 (PDA).;The legalization of birth control and abortion played a significant role in debates about pregnancy discrimination. Even as Roe v. Wade opened up substantive due process arguments against pregnancy discrimination for feminists, it enabled market conservatives to use choice rhetoric to argue that the costs of reproduction should remain private. In the mid-1970s, market conservatives modernized their opposition by applying liberal conceptions of choice, rational decisionmaking, and autonomy to childbearing women. The Supreme Court adopted this logic in its decisions in Geduldig and Gilbert. By contrast, in the political arena, the legalization of abortion fostered social conservatives' support for making the costs of reproduction public. A political trend that coupled reinvigorated support for social protection for motherhood with newer commitments to sex equality, which I term "neomaternalism," contributed to the enactment of the PDA.;In the 1980s, legal feminism underwent a crisis. Market conservatism largely foreclosed redistributive interpretations of the temporary disability paradigm codified in the PDA. A neomaternalist trend in state political cultures, however, led to the passage of pregnancy-leave laws that enabled women to maintain labor-force attachment when they bore children. When employers challenged the pregnancy-leave laws in the case of California Federal Savings and Loan v. Guerra, feminists had to prioritize either a robust commitment to sex neutrality under the law or antidiscrimination protection for childbearing workers.;In examining debates among feminists, market conservatives, and social conservatives from the 1960s through the 1980s, this dissertation uncovers the historical origins of contemporary work-family conflict.