Deborah Dinner (Washington University in Saint Louis - School of Law) has posted Strange Bedfellows at Work: Neomaternalism in the Making of Sex Discrimination Law (Washington University Law Review, Vol. 91, No. 3, 2014) on SSRN. Here is the abstract:
In contests about pregnancy discrimination during the 1970s, feminists, the business lobby, and anti-abortion activists disputed the meaning of sex equality. Existing scholarship has yet to take account of the dynamic interaction between these groups. This Article fills that void, analyzing the legal and political debates that resulted in the passage of the Pregnancy Discrimination Act of 1978 (“PDA”). Feminists’ legal goals and rhetorical frames at times overlapped with and at other times diverged from those of both the business lobby and anti-abortion activists. These points of confluence and departure at once advanced sex equality under the law and also limited its scope.
Feminists, the business lobby, and anti-abortion activists drew upon two legal discourses in debating pregnancy discrimination: liberal individualism and “neomaternalism.” Feminists used liberal individualist principles of equal treatment and neutrality to challenge sex-role stereotypes under the law. The business lobby used liberal individualist principles of private choice to construct a market libertarian interpretation of sex equality that privatized the costs of reproduction. In opposition to the business lobby, both feminists and anti-abortion activists forged a fragile alliance to advocate the PDA. Both groups made neomaternal arguments that leveraged the social value of motherhood to gain legal entitlements for pregnant workers.
Feminist advocates for the PDA synthesized liberal individualist and neomaternal discourses to pursue the elimination of sex-role stereotypes under the law as well as collective societal responsibility for the costs of reproduction. While the PDA took a significant step toward the realization of this vision, it remains illusory. Our legal culture evolved to embrace not only the valences of liberal individualist and maternalist ideologies that advance sex equality but also those valences that reinforce gender inequality. Market libertarianism continues to privatize the costs of reproduction, while maternalism reinforces the sexual divison of reproductive labor. Ultimately, this Article points to the persistence of tensions in the definition of sex equality and the need for new legal paradigms.