Supreme Court: Pregnancy discrimination A-OK!

Today our nation’s highest court ruled in AT&T v. Hulteen that women who took maternity leave and were discriminated against by AT&T are shit out of luck.

Before the Pregnancy Discrimination Act was passed, when women took leave from their AT&T jobs to have a baby, those days did not count toward their pensions — even though other types of leave, such as temporary disability, were not removed from the pension equation. So when the women went to retire, they had lower pensions than other employees who had worked there the same number of years, even those who had taken leave for other reasons.

AT&T lawyers said their pension plan was legal when the women took pregnancy leave, so they shouldn’t have to recalculate their retirement benefits now. Congress did not make the Pregnancy Discrimination Act retroactive, they said, so the women should not get any extra money.

A majority of the justices agreed. “A seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA,” wrote Justice David Souter, who will retire next month.

Basically seven members of the Supreme Court are saying, “You were discriminated against? You’re about to retire with less money because of it? Tough.”

Justices Ruth Bader Ginsburg and Stephen Breyer dissented. By making it illegal to discriminate against women on pregnancy leave, “Congress intended no continuing reduction of women’s compensation, pension benefits included, attributable to their placement on pregnancy leave,” said Ginsburg, the court’s only woman.

Even if the Pregnancy Discrimination Act cannot be applied retroactively, lawyers for the women argue that

the decision below should still stand based on Lorance v. AT&T Technologies, in which the Court held that if a seniority system is found to be facially discriminatory, it “‘can be challenged at any time,’” and the Civil Rights Act of 1991, which specifically provides for challenges to an intentionally discriminatory seniority system “when a person aggrieved is injured by the application of the seniority system.”

Given that women tend to make less money during their working years and then live longer than men, they already struggle financially during retirement. And this ruling isn’t going to help. According to the National Women’s Law Center, which filed an amicus brief (PDF) in the case,

The most recent population surveys show that the median pension benefit for women over 65 is $8,110, compared to a $12,505 median for men in the same age range.

Much like the Court’s awful ruling in Ledbetter, Congress could fix this with legislation.

The court’s decision could affect thousands of women who took pregnancy leaves decades ago and now are headed toward retirement, said Christine L. Owens, executive director of the National Employment Law Project. Now, the only way women who took pregnancy leave before 1979 can make their leave time count is through the good graces of their company or through legislation by Congress, she said.

Since I’ve never been too optimistic about the “good graces” of companies, I think it’s time to push Congress to remedy this.

Scott Lemieux has more on how this relates to the diversity of the Court.

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66 Comments

  1. Alice
    Posted May 18, 2009 at 5:26 pm | Permalink

    This isn’t discrimination against women, it’s discrimination against people who become pregnant.* Isn’t the idea that those two groups are the same thing something we’re fighting against?!

  2. sbeath
    Posted May 18, 2009 at 5:36 pm | Permalink

    I think this ruling is terrible, but there may be a remedy: the modifications to the Americans with Disabilities Act may well qualify pregnancy as a disability. From the new ADA language and this ruling, it looks like we could be just a few years and lawsuits away from that.
    When I wrote a paper on this topic, my classmates suggested that the two main opponents of this would be: 1. mainstream people who think that disabilities have to be rare and “abnormal” and 2. feminist groups might take offense at something considered a female experience being labeled a disability, and therefore “abnormal”. I’d be interested in what other people thought.

  3. Ann
    Posted May 18, 2009 at 5:36 pm | Permalink

    Well, except that men can’t really become pregnant, so this is a ruling that only affects women. Even though obviously both men and women should be concerned about the ruling.

  4. dangerfield
    Posted May 18, 2009 at 6:00 pm | Permalink

    While we should be angry that past pregnancy discrimination isn’t yet totally rectified legally, does the fault here really lie with Supreme Court, when Congress wrote the flawed law?
    The Supreme Court can only interpret the laws written by Congress, and in a lot of ways in both this case and in the Ledbetter ruling, the ability of the court to stop this discrimination was tied by the weaknesses written into the law. The decisions essentially say “This is a problem, fix the legislation.”
    While I don’t like the immediate result, having read some of the arguments briefs and opinions, I don’t see a legal problem with the Court’s interpretation of the law, and it seems pretty clear to me that the court is NOT “A-OK” with pregnancy discrimination. The real responsibility here can and should rest on the shoulders of Congress to fix the legislation.

  5. Rhoanna
    Posted May 18, 2009 at 6:15 pm | Permalink

    Some trans men can, and do, become pregnant.

  6. Alice
    Posted May 18, 2009 at 6:20 pm | Permalink

    So? You’re still grouping people together based on something irrelevant to the issue. I have no more connection to a pregnant woman by virtue of being female than would any male, and I resent the implication that state-mandated privileges for them are something be done in my interests.

  7. dangerfield
    Posted May 18, 2009 at 6:38 pm | Permalink

    Since when was an issue that affected many women NOT a women’s issue in a larger sense? By this same logic, specific discrimination against women in the workforce or women of color isn’t discrimination against women in general. Pretty much all gender discrimination can be qualified away like this–by race, occupation, geography etc., so I don’t understand the desire to define women’s issues as those common to YOUR experience.

  8. Lumix
    Posted May 18, 2009 at 6:45 pm | Permalink

    I agree with this completely. I understand the concern with making pregnancy and maternity leave exclusively a “woman’s issue”. But there’s also a problem with making it exclusively a “woman who is/has been/or will be pregnant”‘s issue.

  9. Qwerty
    Posted May 18, 2009 at 6:51 pm | Permalink

    Disability and Pregnancy are not comparable. Pregnancy is purely optional, while disability is the result of an unintentional mishap.
    Forgive me, but i’ve never understood the rationale behind requiring paid maternity leave, and i dont see how it can be compared to wage discrimination. Again, pregnancy is a choice, pay discrimination is imposed with bad intent.

  10. SarahMC
    Posted May 18, 2009 at 7:00 pm | Permalink

    Pregnancy is a choice many men make, too, as part of couples.

  11. dangerfield
    Posted May 18, 2009 at 7:07 pm | Permalink

    I agree that disability and pregnancy are not comparable, but it is disingenuous to say that pregnancy is a “purely optional” “choice.”

  12. ItsJustMe
    Posted May 18, 2009 at 7:12 pm | Permalink

    You hit it on the head. In a recent post about the separation between feminists and mothers I said that I did not really feel the divide; I have really been eating my words since then. I’m not sure if I turned a blind eye to the discrimination against mothers or if it has just been more rampant in here lately. Either way, an issue that affects any woman is an issue that we should all care about as feminists. I am a mother and would not want the rights of childfree women to be infringed upon. What is the problem here?

  13. conquestofbread
    Posted May 18, 2009 at 7:15 pm | Permalink

    I disagree that pregnancy is always a choice.
    What about women who can not afford an abortion, or live in a rural area and can not get transportation to have one?
    Or a woman who becomes pregnant after a rape, but does not personally agree with abortion?
    And even in cases where the person chooses to get pregnant, why shouldn’t she get paid maternity leave, and be afforded the same privileges as others who also take an approved medical leave?
    The alternatives to required paid maternity leave are so much more disadvantageous to women, or to the general population. I suppose women should either not be in the workforce if they become pregnant, or women should keep working, but stop having children altogether?

  14. Alice
    Posted May 18, 2009 at 7:29 pm | Permalink

    If you oppose infringing the rights of the childfree, then presumably you would oppose ant-discrimination efforts such as this, as mandatory maternity benefits make it illegal to negotiate such benefits away. It consists of the government imposing itself between parties of a voluntary exchange and dictating what they are and are not allowed to agree to. No such similar thing happens to the childbearing in the converse situation. There is no loss of rights, only the loss of social privileging of decisions that society has deemed more valid than others.
    Nevermind the much more basic right against ex-post-facto laws, which is what this particular ruling comes down to. I would hope that even in Congress passed a law that was retroactive, the Court would again reject it on those grounds alone.

  15. dangerfield
    Posted May 18, 2009 at 7:30 pm | Permalink

    Also, its an oversimplification to say pay discrimination is imposed with bad intent. Oftentimes employers pay women less because industry-wide pay discrimination establishes that market price for their labor. So even if the employer is in good faith in paying their female employees their going rate, market forces encourage them to pay male employees more. This is one reason fair-pay laws are so important, and fear-of-pregnancy has historically been a reason employers paid women significantly less.

  16. ItsJustMe
    Posted May 18, 2009 at 7:37 pm | Permalink

    Sorry, I disagree with you. I’m all for mandatory maternity benefits. I would have absolutely no problem if they also came out with a law for childfree people that they get the same amount of paid time off as maternity leave and they are free to use it however they wish.

  17. Alice
    Posted May 18, 2009 at 7:52 pm | Permalink

    I would have absolutely no problem if they also came out with a law for childfree people that they get the same amount of paid time off as maternity leave and they are free to use it however they wish.
    Way to completely miss the point. You can’t balance out interference with more interference. Now you’ve simply piled even more potentially unwanted benefits upon employees that they cannot get rid of in favor of others, and more pointless expenses upon consumers. If this is the direction your reasoning leads down, than I suppose I should be happy if you only wanted maternity benefits and left things alone after that!
    But, it never actually works out that way. There is no limit to the number of regulations people will imagine to impose once.

  18. ItsJustMe
    Posted May 18, 2009 at 7:58 pm | Permalink

    Sorry I missed the point, I see what you mean now. I called my husband over to translate your comment for me because I’m clearly not intelligent enough for those big words and he missed the point too. Anyway, thanks for explaining it to me without being condescending.
    I believe the government needs to step in to protect the rights of the people, I have zero faith in companies doing it for us. Which is evident by the fact that they already don’t.

  19. Bill Abendroth
    Posted May 18, 2009 at 8:05 pm | Permalink

    “Women are shit out of luck”? How is that (like “dog bites man”) news?
    I thought “Alice” was making a really clever joke about discrimination “against people who become pregnant,” alluding to City of LA Dept of Water and Power v. Manhart. In that opinion, Justice Marshall held that restrictions on pregnancy were not discrimination against “women,” because the two classes denied equal protection were not “men” and “women,” but “pregnant persons” and “non-pregnant persons,” and a moron says “what?”
    But I guess not.
    I remain:
    Bill Abendroth
    Samsara Samizdat
    Man–by the time I finished registering, this was the hardest I’ve ever worked to leave a snarky comment in a long time.

  20. Alice
    Posted May 18, 2009 at 8:17 pm | Permalink

    Sorry for the overly aggressive reaction, but I suppose I react negatively to someone saying, “Oh, don’t worry. We can violate people’s rights in your favor to!” as though that’s supposed to alleviate my concerns.

  21. LalaReina
    Posted May 18, 2009 at 8:20 pm | Permalink

    This is an issue where pro woman and pro life folks should be equally engaged…but don’t hold your breath.

  22. ItsJustMe
    Posted May 18, 2009 at 8:24 pm | Permalink

    It’s ok, I understand. I just place individual human rights over company rights and it looks like that is where we disagree.

  23. conquestofbread
    Posted May 18, 2009 at 8:51 pm | Permalink

    Alice, I understand your point, and I agree that it’s important that people recognize that part of being a woman doesn’t mean you have/will/should be pregnant.
    But doesn’t it concern you that pregnancy is something that (in the vast majority of cases) only happens to women?
    Making it possible for all women to both have children and have careers protects every woman’s right to choose to have a baby or not.
    You may choose not to exercise that right, but the choice should be protected.

  24. Mollie
    Posted May 18, 2009 at 8:54 pm | Permalink

    We complain that Viagra is covered by insurances while abortion isn’t, and we view that a men v women situation, pregnancy is inherently a women’s issue. Not *only* a women’s issue, but a women’s issue nonetheless.

  25. Alice
    Posted May 18, 2009 at 9:01 pm | Permalink

    I honestly don’t see the difference. What difference does it make if I personally hire a bunch of people to maintain a telecommunications network for me, verses hiring the owners of AT&T to hire a bunch of people to do the same?

  26. Qwerty
    Posted May 18, 2009 at 9:08 pm | Permalink

    I’m not sure if that was supposed to convince me otherwise, it is still unfair to business, even if men (whom i obviously value more! :p ) are being harmed.
    I did take a middle-class, generalized outlook on abortion, and i agree that this is nearsighted, but IMO, that still doesn’t justify punishing the business community.
    But let’s suppose the government were to create a program that reimbursed business that offered maternity leave. I’d be down for this, because ideally, this could simultaneously aid women while adding a competitive edge to business (wouldn’t you work want to work a company that offered this?)
    Anyways, just thinking out loud here.

  27. Alice
    Posted May 18, 2009 at 9:21 pm | Permalink

    Free to choose means being able to decide on your preferences, taking into account the costs and benefits of available options, and then being able to act on those preferences without arbitrary interference. It does not mean being able to make decisions without costs. I had to choose between my own present life and a large number of other possible paths, of which parenthood was only one of them. Why can’t the government prop up my desire to excel in both my technical career and my artistic aspirations?
    Because the fact is, nothing is without cost, and somebody always pays. The problem with this sort of issue is that it is possible to shift costs from the obvious to the subtle, and then people think that the costs have been legislated away.
    Scarcity is tragic, isn’t it? Well, I suppose it’s actually the most wonderful thing of all. Choice would be meaningless without sacrifice.

  28. tinfoil hattie
    Posted May 18, 2009 at 9:38 pm | Permalink

    Well, 51% of the population needs the option to be able to carry, deliver, and help nurture the next generation of decent human beings. Why does “only applies to women” = unfair to those poor, poor corporations?
    Typical patriarchal viewpoint. “You chose to get pregnant so everything from here on in is YOUR problem!”
    Okay, so 15 years from now, don’t get any help or any service from anyone – no surgery, no chemo, no education, no legal assistance, no social services – because you didn’t want kids, so why should you reap the benefit of their labors? Because kids don’t stay kids. They push your chair around the nursing home, they pave your roads, inspect your food, hear your side of the story in court.
    I have never understood the narrow-minded, self-righteous viewpoint of not giving a shit about how the people you will depend on later have been raised, taught, and nurtured.

  29. nestra
    Posted May 18, 2009 at 10:20 pm | Permalink

    I think I agree with you, Alice. Having children has benefits (perceived or real) for many people. Don’t misunderstand, I’m not going to launch into a “babies are great, everyone should have them” speech, but most people who choose to have children do so because they want them, for a variety of reasons. Most of these reasons can not be quantified.
    And yet, people don’t want any sacrifice. Maybe there should be some cost to having children, or deciding to stay home with children.
    Here’s my experience. My partner’s job requires extensive and often spur-of-the moment travel. I feel that rearranging our family life to allow this needed flexibility should be rewarded financially. People who want to do the same job but do not want to be called for an emergency at 3AM should not be compensated as well. They are not being punished, the worker willing to be flexible is rewarded.
    I see this as something similar. It’s not so much that workers requiring maternity leave are being punished, but those who don’t should be rewarded.

  30. HoyaGuy
    Posted May 18, 2009 at 11:00 pm | Permalink

    “So when the women went to retire, they had lower pensions than other employees who had worked there the same number of years.”
    That’s not true, strictly speaking. In a literal sense, the women in question worked less time than their peers.
    I know exactly the sort of replies I’m going to get (I smell the p word coming), but this read like the following to me:
    Women who work less throughout the duration of their career get a smaller pension fund.
    A pension fund is not some sort of egalitarian social leveler. It is a extra form of compensation for time worked.

  31. sbeath
    Posted May 18, 2009 at 11:00 pm | Permalink

    Others commenters made the point that pregnancy isn’t always a choice, but I think it’s important to note that at their root, pregnancy and disability can be seen as very similar. Both are marked body differences that are alternately stigmatized and praised by society. Both introduce special needs for accommodation. Both are experienced at some point in life by a large segment of society.

  32. rhowan
    Posted May 18, 2009 at 11:32 pm | Permalink

    “Pregnancy is purely optional, while disability is the result of an unintentional mishap.”
    The women being discussed in the above article are women who took pregnancy leave before 1979. Given that abortion was illegal in the U.S. until 1973, and in some states birth control was illegal until 1965, I would imagine that for plenty of those women childbirth was not a deliberate choice.

  33. Posted May 18, 2009 at 11:43 pm | Permalink

    You’ve missed the last (crucial) bit of that sentence, where it says: “even those who had taken leave for other reasons.”
    the first sentence of Souter’s opinion makes it clear they’re talking about women who took pregnancy leave getting less pension than those who took other kinds of medical leave:
    “The question is whether an employer necessarily violates the Pregnancy Discrimination Act (PDA), 42 U. S. C. §2000e(k), when it pays pension benefits calculated in part under an accrual rule, applied only prior to the PDA, that gave less retirement credit for pregnancy leave than for medical leave generally. We hold there is no necessary violation . . .”

  34. adag87
    Posted May 18, 2009 at 11:59 pm | Permalink

    Frankly, I don’t see how mandated paid maternity leave violates your individual rights as someone who is child free. You’re not paying for someone else’s maternity leave, are you? Presumably your employer is paying for that leave, and this should not affect you, unless paid maternity means the organization for which you work has to downsize/lay people off because they can’t afford the extra cost. Though I don’t think that’s AT&T’s issue with it. To me it seems less about “rights” and more about corporate greed in this case.
    Unless I have something wrong? Does maternity leave come out of your pay check? If that’s the case, I can maybe see someone such as yourself arguing against it.

  35. HoyaGuy
    Posted May 19, 2009 at 12:15 am | Permalink

    So we really want to go down the road of saying that pregnancy is analogous to illness and disability?

  36. Alice
    Posted May 19, 2009 at 1:07 am | Permalink

    Why does it have to hurt me personally for me to oppose it?
    But to answer you question, it actually does impose costs on me in numerous ways, but as it is getting late I’ll focus on the most commonly ignored one. Every company I buy from is essentially acting as a matchmaker between my effective demand and the market’s supply of capital and labor. Thus, anything that imposes costs on “employers” necessarily imposes costs on me by increasing the cost of everything I buy, which is to say, reducing my real wages. The only way it is otherwise is if I am in the privileged class of people who benefits from those costs, such as a member of a union with artificially high wages.
    On the other side of the labor market, increasing the costs of female labor naturally means that less of it will be consumed, making it harder for me to even get a job of a given desirability in the first place. This even extents to those women who would like to use maternity benefits, who may not be able to get a job at all because of this.
    But if you’re response to all that is to just argue that the costs would all somehow be borne by business owners alone, I’d like to point out just how small of a percentage of final costs profit actually is. Wal-Mart, a paragon of corporate greed according to some, only makes a $13.59 billion profit on $404.16 billion of revenue, giving them a profit margin of 3.36%, and that’s one of the greatest companies the world has ever known. Most companies at any given time are operating at a loss. Rest assured that any increase in costs will eventually result in a change in price, not a change in profit. There just isn’t much distance for profit to drop before the entire enterprise just stops being worthwhile to own and operate.

  37. Qwerty
    Posted May 19, 2009 at 1:35 am | Permalink

    “Why does “only applies to women” = unfair to those poor, poor corporations?”
    It has nothing to do with applying to women, business is unfairly burdened with paying workers for not working. And this doesn’t apply exclusively to evil mega-corporate conglomerates, but to buisness as a whole. If this fits your view of a “patriarchal viewpoint” (ooooh, scary) then so be it.
    I’m not sure I understand the rest of your post. Are you worried about their not being enough kids? The birth rate has remained positive through growing female involvement in the workforce, and in the absence of maternity leave. The world will go on, i promise you.
    Also, you pulled out of thin air that i oppose government services and welfare, this is not true.

  38. aznemesis
    Posted May 19, 2009 at 3:59 am | Permalink

    ” only makes a $13.59 billion profit on $404.16 billion of revenue, giving them a profit margin of 3.36%, and that’s one of the greatest companies the world has ever known. Most companies at any given time are operating at a loss. Rest assured that any increase in costs will eventually result in a change in price, not a change in profit.

    In short: “I’m a capitalist shill.”
    These “rules” you are so high one are constructs, just as all “rules” of economics are. They are not immutable facts. Companies don’t “negotiate” crap for me. They are about rich people screwing poor people–and they will be about that regardless of whether they pay decent retirement benefits to all their workers or not.
    Funny how obscene benefits/salaries for executives are just fine. It’s rank and file women who are the big threat to you.
    As for the claim that oh-so-many companies are “operating at a loss”–sources?

  39. Oekedulleke
    Posted May 19, 2009 at 3:59 am | Permalink

    My main problem here is that the article is simply a call to make the law retroactive, even when the writer herself states that it cannot be used as such.
    The protection is in place now, but it looks like thats not enough for some, they want companies to pay up for not doing anything illegal in the past.
    I dont agree with that, and imo the court ruled correctly.

  40. aznemesis
    Posted May 19, 2009 at 4:06 am | Permalink

    “I’m not sure I understand the rest of your post. Are you worried about their not being enough kids?”

    If you’re American, I’m assuming that you’re going to be turning down any Social Security benefits that you may have coming. Because, yes, the next generation will be paying for those. Your money isn’t sitting in some cubbyhole somewhere. The fact that there are too many members of the generation now approaching retirement age in the U.S. means that lack of children (even a birthrate that hangs steady) will affect you. Those selfish bitches pumping out babies and expecting their seniority to be protected are creating the generation that’s going to keep those checks in your mailbox someday.

  41. karenoh
    Posted May 19, 2009 at 4:07 am | Permalink

    For me, it comes down to that fact that if I were a man working at ABC Corporations and my wife and I decided to have a kid, it would not affect my work situation, but if I were a woman working at ABC Corporations and my husband and I decided to have a kid, I would have to miss 9 months out of the year to do so. I don’t think that I should have to not only sacrifice my body for 9 months but also my pay when a man in the exact same situation would have to do neither.

  42. aznemesis
    Posted May 19, 2009 at 4:10 am | Permalink

    If I’m seeing a doctor (up to once a week in late pregnancy) for a condition that’s usually dealt with in a hospital, then, yes, it should be treated like every other medical condition.

  43. Oekedulleke
    Posted May 19, 2009 at 4:33 am | Permalink

    Well, then you have to be very happy with the new law.
    But that still doesn’t give anyone the right to punish a company that did not comply with this law before it existed.

  44. adag87
    Posted May 19, 2009 at 4:44 am | Permalink

    I don’t think something has to affect you personally for you to oppose it. I was using “you” in the more general,hypothetical sense than I was outright asking you how you are hurt by maternity leave. Sorry if that was unclear.
    I’m not going to get snarky with you about your opinions on labor politics, but I do have to respectfully disagree with the idea that because corporations like WalMart only make a 3.36% profit margin that women shouldn’t have paid maternity leave. I’m not a fan of increased costs on anyone, but the truth of the matter is that CEOS are, in general, overpaid and that cutting their pay might drive costs down. It depends on each specific business model, and the smaller the business, the less feasible mandatory paid maternity leave is – I realize this.
    There is always the issue of where to draw the line. I know many people who have commented don’t like to equate disability or medical leave with maternity leave but the two can be compared in one sense: Medical leave, like pregnancy, can in some cases be prevented. Smoking, for instance, increases your risk of lung cancer significantly. -*for the record I am NOT bashing smokers, I am just using it as a (albeit imperfect) analogy*- Now, I realize that getting lung cancer is not a choice, and of course nobody wants to get lung cancer (also my apologies if you know anyone with lung cancer, again, it’s just for the sake of the comparison). However, smoking IS a lifestyle choice. Now, if you are in favor of asking someone to stop smoking in order to drive the costs of labor or employee based health insurance down, then it makes sense to also oppose maternity leave. If you believe that everyone has a right to that choice, and also a right to be treated (and get paid leave) when they become ill as a consequence, then opposing maternity leave on the basis of cost increase becomes somewhat problematic.
    I know it’s not a perfect analogy because smoking does not ALWAYS lead to cancer, and pregnancy will almost always result in a period of leave, but I think it’s worth examining in this manner.

  45. adag87
    Posted May 19, 2009 at 4:45 am | Permalink

    Err.. Meant to reply directly to something Alice said.

  46. Zailyn
    Posted May 19, 2009 at 7:14 am | Permalink

    I don’t think it’s at all helpful to construct disability that way, either. If we judge whether a person is disabled or not by how it was caused, I can easily see cases where people did something risky and wound up with a disability because of it being argued away as “well, they should have *known* that if they did X they might wind up with Y disability” and trying to deny them disability benefits based on that. There’s also issues with cases where a cure exists which people may not want to take (I’m thinking of cochlear implants, for instance, as well as what would happen if a cure for autistic spectrum disorders were developed). And what about cases of disabilities detected in the womb where the mother opted not to have an abortion? There are cases where you could frame a disability as being intentional.
    And that’s not even getting into saying disability must be the result of an *accident* (which leaves me, with my probably-genetic developmental disabilities, out in the cold); probably not what you intended but it was one of the first things I thought of when I saw that comment. Framing disability as “an unintentional mishap” leaves a lot of room for discrimination and saying that certain classes of people are not “really” disabled.
    I honestly don’t see what’s wrong with defining disability by the effect rather than the cause. It makes a lot more sense to me and seems to kick out far less people.

  47. spike the cat
    Posted May 19, 2009 at 7:42 am | Permalink

    Exactly. The conversation here illustrates how unchecked capitalism wants something for nothing. Why? Because companies often treat human capital as liability instead of an asset. Companies have the luxury of doing this because they bear little of the cost of rearing, and educating their workforce. In fact a very competitive business model is to have slaves, which as we know is how our great nation got started and which is a stubborn practice that continues today.
    Many industries now demand highly skilled labor but companies benefit immensely from somebody else training and educating that person (read mom and pop or somebody else in a far away land). Sure they pay salaries for the labor, but if you consider all that goes into sustaining an educated, health, youngish labor force, human capital is being completely undervalued to the enormous benefit of corporations.
    One of the reasons cited for the American birthrate remaining stable is that we have a flexible job market. One thing is arguing about how these laws impact global competition. But framing the conversation as an undue burden on people who don’t have kids? Or a burden on companies?
    C’mon we can do better than this. There are other ways to reap the benefits as a whole such as by asking some people who took time off for parenting or family stuff to work a little later before retirement. Actually, providing more flexibility for older workers–especially highly trained folks and people with years of expertise who may not want to retire altogether, but get pushed out the door–is a good idea in general.

  48. conquestofbread
    Posted May 19, 2009 at 8:05 am | Permalink

    “Why can’t the government prop up my desire to excel in both my technical career and my artistic aspirations?”
    I don’t find this to be an apt comparison at all.
    First, having a career and making art are not mutually exclusive endeavors. You can set aside your art at your leisure and pick it back up when you have the time.
    A woman may be able to control when she becomes pregnant, but it’s a decision that, once implemented, is a more permanent commitment that necessarily takes you away from your job, at the very least to give birth and recover. And once the child comes, the child can not be simply put aside when it becomes inconvenient.
    Second, I agree that every choice has it’s sacrifice. However, the sacrifice of having a baby (and indeed caring for one) is almost exclusively put upon women.
    Women are put into the position of choosing between their career and motherhood. Men are very rarely faced with the same situation.
    Sometimes in life, you have to have different standards to be fair. As women (in all cases except one that comes to mind!) are the only ones who get pregnant and give birth, you are necessarily discriminating against women to not make that choice mutually exclusive (or at least detrimental) to having a career.

  49. conquestofbread
    Posted May 19, 2009 at 8:09 am | Permalink

    For the record, I strongly doubt that I will ever have children myself.

  50. sbeath
    Posted May 19, 2009 at 10:22 am | Permalink

    I think we definitely ought to recognize pregnancy as a disability, but only if people understand what disability is. While most people think that disability is something that’s wrong with a person, many current theorists point out the differences in what’s considered a disability where, and say that disability is a social construction. More succinctly, disability is difference that society marks and doesn’t accommodate. Sounds like pregnancy to me.
    I think if more people were better educated on disability, there wouldn’t be an issue with recognizing pregnancy that way.

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