Dismissals for Pregnancy in Government Employment

For those who litigate sex discrimination cases, the most difficult problems theoretically are those which involve characteristics that are not common to both sexes. Discrimination on the basis of pregnancy is the most obvious example and is probably the most difficult to attack. Male employers, judges and even obstetricians are outsiders to the experience of pregnancy, and to many of them the process verges on the mysterious. Masculine attitudes toward pregnancy range from protectiveness to contempt, but they are seldom neutral. Because counsel for women plaintiffs contesting pregnancy employment regulations work in a sensitive area, they should be especially careful that their arguments conform to reality and that the standard of employer behavior that is requested be carefully delineated and as acceptable by current social standards as possible. This comment will explore all fifth and fourteenth amendment pregnancy cases brought before the federal courts of appeal and both military pregnancy cases brought before the federal district courts in 1972. No reference will be made to analogous Title VII cases because they are of little precedential relevance to constitutional cases. The object of the comment is to explore the state of the law of pregnancy in employment under the Constitution, with stress on the relationship between the conduct of the litigation and the outcome of the case.