October 31, 2013, marked the thirty-fifth anniversary of the passage of the Pregnancy Discrimination Act (PDA) of 1978. Signed into law on Halloween that year by President Jimmy Carter, the PDA was instrumental in ending a long-standing era of the lawful exclusion of pregnant women from the workforce. The act ushered in an era of unprecedented access for women to jobs before, during, and after pregnancy. This was, and still is, cause for celebration. Yet pregnant workers today continue to face high levels of discrimination and, more important, lack some basic legal protections that are necessary to enable some women to continue working throughout pregnancy.

In human years, thirty-five is a turning point when “advanced maternal age” sets in, and most conversations with one's obstetrician start with, “Well, because of your age, we need to.…” It marks the beginning of the end of one's fertility and the increase in the likelihood of pregnancy complications and fetal abnormalities.

We might say that the PDA has reached a similar stage. After a robust start, in which the PDA was effectively used to eliminate the most common types of policies and decisions used to exclude women from the workplace entirely or marginalize their participation, attorneys and the women they represent have together struggled in recent years to ensure that the PDA is useful to the pregnant workers whom it should benefit. The complication here is not, of course, the biological clock, but, rather, the mind-set of judges, who cannot give the act its due, and who perhaps feel that its time is done and gone. But we should not stop pushing for pregnant workers’ rights until those workers have been fully integrated into the workplace and do not suffer discrimination.

This chapter considers gaps in current law that still render pregnant women second-class citizens in the workplace and argues that we should work toward a new standard of equal inclusion, rather than just equal access.

THE PROMISE OF THE PDA: EQUAL CITIZENSHIP FOR WOMEN

When Congress approved the PDA, it did so in response to a long history of open discrimination against pregnant women in the workplace, and, more immediately, to two recent Supreme Court decisions that were highly adverse to pregnant women and that seemed to reinforce the lawfulness of that history.