One purpose of this essay will be to respond to this argument by showing what sorts of considerations are pertinent and what conclusions are warranted if one considers the underlying issue in pregnancy benefits cases to be distributive justice, and then contrasting this with the considerations and judgments indicated by a more comprehensive view of sex discrimination. There are other reasons as well for maintaining the debate about the proper perspective on pregnancy disability issues. The Court's difficulties in convincingly justifying the refusal to equate pregnancy with sex-based discrimination in Geduldig and Gilbert, and in distinguishing the seniority and pregnancy benefit situations, have been paralleled by untenable distinctions and unconvincing justifications in more recent cases involving "benign" sex discrimination. Perhaps a clearly articulated debate about how to frame the pregnancy benefit issue can help resolve the analytical confusion apparent in these later cases. Finally, the debate about issue-framing in the context of pregnancy disability and benign discrimination cases will be used to illustrate some more general problems which arise when one is forced to choose between competing conceptualizations of a problem.
Patricia Ann Boling,
Pregnancy Benefits, Benign Sex Discrimination, and Justice: Why Does It Matter How We Ask the Questions?, 11 Golden Gate U. L. Rev.