Enforcing Civil Rights against the States: An Analysis of the Pregnancy Discrimination Act of 1978 under the Court's Section 5 Jurisprudence

I. INTRODUCTION Imagine you are a young woman employed by a state's department of education as an administrative assistant. You recently celebrated your one-year wedding anniversary and now have yet another reason to celebrate: you are five months pregnant your first child. You recall from your orientation at the department of education that the state administers an insurance program under which state employees can receive benefits for illnesses and disabilities that result in absence from work. For example, the plan would pay benefits for illnesses or disabilities such as asthma, a broken leg, eye surgery, skin disorders, and venereal diseases. Because you are a cautious and want to make sure that you will not have any problems obtaining these benefits, you ask your supervisor whether there is anything that you should do five months into your pregnancy to ensure that you will have the benefits you need on time. She informs you that state employee insurance coverage does not include disability occasioned by pregnancy and that you will therefore have to find some other way to pay all medical bills associated your pregnancy. You are shocked. How could your state turn its back on you while it assists so many other state employees their disabilities? You are also scared. How are you going to pay for this pregnancy? After talking a lawyer, you contemplate filing a lawsuit under the Pregnancy Discrimination Act of 1978 (PDA)1 to enjoin enforcement of the statute under which the state's insurance program is administered and to obtain money damages. Are you likely to be successful in your suit? Yes, respect to the injunction, but no, respect to damages. Preliminarily, notice that you intend to sue a state. This implicates the Eleventh Amendment to the United States Constitution, which the United States Supreme Court has interpreted to prevent a from suing his or her own state under most circumstances.2 There is an exception to the bar of the Eleventh Amendment when Congress is enforcing the Equal Protection Clause under Section 5 of the Fourteenth Amendment.3 This exception will do you no good, however, as long as the Court adheres to a case that held that pregnancy discrimination does not constitute gender discrimination.4 If pregnancy discrimination does not constitute gender discrimination, then it will be impossible for you to argue that the PDA is a valid exercise of Congress's Section 5 power under the Fourteenth Amendment. Only if the Court were willing to overrule this position would you likely have a valid Section 5 claim. However, all is not lost. Even if pregnancy discrimination does not constitute gender discrimination, you should still be able to obtain an injunction against the state official who administers the insurance program, ordering that official to pay for the costs of your pregnancy out of the state employee insurance fund. II. BACKGROUND: LEGISLATION AND CASE LAW In 1964, Congress enacted the Civil Rights Act of 1964 (CRA).5 This comprehensive piece of landmark legislation sought to remedy many social ills, including unequal employment opportunity: It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .6 As enacted, the CRA applied only to private entities, not state entities.7 Thus, one who suffered gender discrimination by a state employer could not seek redress under the CRA. In 1972, however, Congress, through the Equal Employment Opportunity Act of 1972 (EEOA),8 amended the CRA to include government, governmental agencies, [and] political subdivisions.9 Given that person was defined to include governments, government agencies, [and] political subdivisions, one would think that a woman denied benefits under a state-administered insurance program on account of her pregnancy could successfully bring suit against the state under the CRA (as amended), arguing that her employer had discriminated against her with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] . …