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Golden Gate University Law Review

Abstract

This Article has been constructed in three sections. Part I will examine the legal issues raised by the Miller-Wohl case by contrasting the equal treatment approach of the Pregnancy Discrimination Amendment with the positive action or reasonable accommodation approach of the MMLA. Such an examination leads to two conclusions. The first is that the PDA's equal treatment approach is by itself inadequate to assure equal employment opportunity for women who, because of their role as child bearers, confront employment obstacles not faced by men. The second is that laws such as the MMLA, which recognize and take affirmative steps to equalize this inherent sex difference, can be legally supported without indirectly justifying either less favorable treatment of women in other contexts, or under - and over -inclusive "protective" legislation. After concluding this legal analysis the Article will move one analytical step deeper and examine the different models of equality underpinning the equal treatment and positive action approaches which clashed in the Miller- Wahl controversy. As Part II will demonstrate, the liberal model of equality which underlies the equal treatment approach is structurally inadequate to effectuate equality between the sexes. This inadequacy stems from the liberal model's reliance on homogeneity and interchangeability within the "society of equals," a reliance which has its roots in reductionist enlightenment-era political theory. After examining the sources and consequences of the homogeneityassumption inherent in the liberal view, Part II will proffer two supplemental conceptions of equality: Elizabeth Wolgast's "bivalent" view, and Ann Scales' related, narrowing "incorporationist" view. Both of these models are analytically equipped to effectuate equality within a heterogenous group. Finally, Part III contrasts the metaphysical view of social change underlying the equal treatment position with the dialectical and materialist conception supporting a positive action approach to the pregnancy issue. In the course of examining these two contrasting paradigms of change, Part III leads to the conclusion that no one theory or strategy, including the equal treatment approach to equality, can remain progressive or comprehensively efficacious over time and across different material contexts. It is only by remaining theoretically flexible and by selecting legal strategies or theories in light of the material conditions confronting today's working women that feminist legal practitioners and theorists can facilitate substantive and not merely formalistic equality between women and men. To achieve this goal, a careful expansion of the traditional equal treatment conception of equality is required. This expansion must encompass and analytically support a positive action approach to the equality problems presented by pregnancy and childbirth.

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