479 U. S. 272
January 13, 1987
And we enter 1987! In the year’s first case, a California law mandated that employers provide pregnant workers (and no one else) unpaid leave with guaranteed reinstatement. On its face, this law, by giving pregnant women a right not given to other employees with need for medical leave, appeared to conflict with the federal Pregnancy Discrimination Act, which disallowed disparate treatment by employers on the basis of pregnancy. If the laws conflicted, the California law would have to give way. But in a 6-3 decision, the Supreme Court ruled that the two laws were not in fatal conflict.
Marshall wrote the majority opinion. First, he made clear that the Pregnancy Discrimination Act (PDA) would not preempt the California law on the basis of anything other than direct conflict (Stevens declined to join this one section of the opinion). Next he contended, on the basis of some sketchy and inconclusive legislative history, that the PDA was intended only to provide a floor of treatment, not a ceiling, and that Congress had no purpose of preventing preferential treatment based on pregnancy. Finally, Marshall argued that an employer could decline to afford pregnant women special treatment, and still easily comply with both laws. This could be done by offering the same guarantee of reinstatement to any other employees taking medical leave.
Stevens wrote a concurrence which mainly emphasized that the case followed the same logic as the precedent of Steelworkers v. Weber, which approved of similar preferential treatment on the basis of race. Scalia did not join Marshall’s opinion, but concurred in judgment. He penned a singularly unpersuasive argument that, because it did not actively tell employers to give only pregnant women preferential treatment, the California law did not “purpor[t] to require or permit the doing of any act which would be an unlawful employment practice,” and thus could not be preempted by the PDA.
Justice White dissented, and he was joined by Rehnquist and Powell. He totally demolished Marshall’s argument that the legislative history and intent of Congress condoned the possibility of preferential treatment, showing that, in fact, both emphatically pointed in the opposite direction. In some decisions, I can see merit in more than one opinion, but in this case, I feel very strongly that White was right, and the other Justices were simply wrong.
I am rather amused by Marshall’s statement in one footnote that “a State could not mandate special treatment of pregnant workers based on stereotypes or generalizations about their needs and abilities.” If the California law was not an example of precisely that, then I have no idea what is. On a more serious note, it does sadden me a lot to see pregnancy referred to as a “disability” throughout all of the opinions. It breaks my heart that children are so often seen as impediments to a career. Law or no law, I wish far more mothers would make the choice to stay home and raise their children. I know this isn’t always possible due to financial situations, but I can think of no work of more important for the future, nor any work more beautiful and rewarding for both parent and child.