Due Protections: The Pregnancy Discrimination Act at 40

Ruth Bader Ginsburg in 1977. Photo: Lynn Gilbert

Today, Susan Struck’s political positions are nothing that would stick out in a red state like Arizona. A few years ago, she joined the chorus of support for the once-threatened A-10 fighter jet program at Tucson’s Davis-Monthan Air Force Base. In a 2010 article on immigration, a writer noted her concerns about automatic citizenship for U.S.-born children.

Despite the rightward tilt that would be assigned to her views today, Struck was once at the center of a fight for reproductive justice, a cause taken up by a young Ruth Bader Ginsburg, back when “The Notorious RBG” was still a lawyer for the ACLU. It was that fight that led to Ginsburg’s involvement in the writing of the Pregnancy Discrimination Act of 1978, a landmark piece of legislation that turns 40 this month.

Despite 40 years of protections, pregnancy discrimination hasn’t gone away.

Now retired in an Arizona ranch community, Struck first arrived in the Copper State at the end of the 1960s, when she enlisted in the U.S. Air Force and was stationed at Davis-Monthan. She told Elle in a 2014 interview that she reveled in her newfound independence from the family and church she left in Kentucky. “She went on the Pill and stopped attending confession,” the article recounts, and she spent her free time enjoying her sexual freedom and the chance to experience Tucson’s foothills in a newly acquired Camaro.

Still, Struck wanted more excitement, so she asked to be sent to Vietnam. She was assigned to Phù Cát Air Force Base, where she quickly hit it off with an F-4 pilot — and ended up pregnant. Struck understood that the Air Force gave officers in her situation two choices: get an abortion or be honorably discharged. It was 1970 then, still a few years before Roe v. Wade, but the armed forces had made abortion legal ahead of civilian society.

Disliking her options, Struck hid her pregnancy long enough to join the front lines of conflict in Vietnam, working 12-hour shifts in a medical unit. By seven and a half months, however, she could no longer keep it a secret. She let her superiors know and was soon sent back to the U.S.

Though she wasn’t still practicing, Struck was a Catholic by upbringing and had known from the start she didn’t want an abortion. At the same time, though, she also didn’t want a child, so she decided to arrange for an adoption. As long as she could do that, she didn’t see why she should have to accept a discharge from the Air Force. Back in the U.S., Struck found a couple in Nebraska who would adopt her baby — and she contacted the ACLU about her employment case.

Ruth Bader Ginsburg and the ACLU

Ruth Bader Ginsburg graduated from Columbia Law School in 1959 at the top of her class. That distinction, though, didn’t always smooth the path ahead of her. A few years into her law career, while working at Rutgers Law School, Ginsburg learned she was making less than her male colleagues. The discovery prompted her to join an equal pay campaign with others at the university. Eventually, that and other examples of unequal treatment prompted her to work for the ACLU, taking on sex discrimination cases.

One of those was Susan Struck’s, which soon became Ginsburg’s “principal project” and a case she wanted to take all the way to the Supreme Court. Ginsburg had faced pregnancy discrimination herself in the mid-1950s, when she followed her husband to Fort Sill in Oklahoma. She took a job at a Social Security office, and when she told her employer she was expecting, she was soon demoted and told she could no longer take travel assignments. While working at Rutgers, she became pregnant again but chose secrecy over transparency, fearing she could risk her career.

However, as Ginsburg would recount later, it was not how personally relatable Struck’s case was that made it important to her. Ginsburg saw it as “an ideal case” to establish how — and why — pregnancy and childbirth should be included in a woman’s legal protections against sex discrimination. More broadly, she thought it had the potential to mean more for reproductive justice than another case that was developing at that time, Roe v. Wade. The shortcoming of Roe, she thought, was that it was as much about “a doctor’s freedom to practice his profession” as it was about the bodily autonomy and reproductive freedom of women. Struck’s case, on the other hand, was about a woman’s right to make decisions about her own body, independently of her employer, her doctor, or her government.

The fate of Struck’s case was one of mixed fortune, however. Court cases often take longer than the final trimester of a pregnancy, so Supreme Court Justice William O. Douglas ordered the Air Force to suspend any further actions toward Struck’s discharge. As her case progressed, Struck gave birth to her daughter in late 1970. The Air Force Times covered her story with a front-page article, celebrating the first woman to give birth while on active duty.

Early the next year, as Ginsburg prepared to argue the case in front of the Supreme Court, the Air Force voluntarily changed its policy on pregnancies, allowing Struck to return to service. The case was subsequently dismissed.

For Ginsburg, the next chapter would be taking on pregnancy discrimination through legislation instead of case law.

Taking the Fight to Congress

After Struck’s case was dismissed, the Supreme Court decided two other cases related to pregnancy discrimination, Geduldig v. Aiello in 1974 and General Electric Co. v. Gilbert in 1976. In both cases, the court decided in favor of the employer. Each time, the majority ruled that pregnancy discrimination does not constitute sex discrimination, adding in the second case that pregnancy “is often a voluntarily undertaken and desired condition.”

The decisions prompted the Women’s Legal Defense Fund (today known as the National Partnership for Women & Families) and a coalition of civil and women’s rights organizations to launch a campaign for federal protections for pregnant women in the workforce. Ginsburg, along with one of the lawyers from Geduldig v. Aiello, helped draft the bill they wanted, which would ensure that applicants and employees could not be denied employment “on the basis of pregnancy, childbirth, or related medical conditions.” Additionally, it would require that employer-provided health insurance cover pregnancy-related expenses.

Jimmy Carter signs the Pregnancy Discrimination Act into law, October 31, 1978.

Sen. Harrison Williams (D-N.J.) introduced the bill on March 15, 1977. While the law was being considered, Ginsburg and a colleague, Susan Deller Ross, published an op-ed in the New York Times to argue the need for the bill and call for its enactment. By September, the bill passed the Senate and moved to the House of Representatives.

The next year, the bill stalled in the House as some Republicans, led by Ronald A. Sarasin (R-Conn.), pushed for a provision that allowed employers to exclude abortion from their employee health coverage. Though many Democrats objected to the change, Rep. Shirley Chisholm (D-N.Y.) urged her colleagues to vote for the bill, rider and all, to ensure it made it out of the session that was about to expire. The bill passed the House on July 18, and the Pregnancy Discrimination Act (PDA) was signed into law by President Jimmy Carter on October 31, 1978.

Continuing the Fight Today

Though the PDA has provided protections for 40 years now, pregnancy discrimination hasn’t gone away. In 2004, the Equal Employment Opportunity Commission (EEOC) ordered Berge Ford to pay a $70,000 settlement to Mesa resident Mailyn Pickler after she was fired due to her pregnancy. According to EEOC attorney Mary Jo O’Neill, “they just assumed because she was pregnant, she was going to be throwing up on their cars.” In 2016, the EEOC reached a $66,000 settlement with the now defunct Moonshine Whiskey Bar in Tempe, which had fired a bartender out of concern that “allowing a pregnant person to be behind the bar” could offend “a whole number of people.”

Those were just two cases that made the news in Arizona, but many more women are forced to choose between employment and pregnancy — just as Susan Struck was 48 years ago. Nationally, more than 6,000 reports of pregnancy discrimination are submitted to the EEOC or state counterparts annually.

Awareness and sensitivity training can be one step in the right direction — something Berge Ford agreed to provide its employees after settling Mailyn Pickler’s complaint. Another step would be further increasing protections for pregnant people in the workforce. The U.S. is the only developed nation that does not guarantee paid maternity leave — meaning many women are still forced to give up their income temporarily, even if they’re no longer forced to give up their employment.

A wide majority of Americans, Democrats and Republicans alike, support paid parental leave — 74 percent of registered voters, according to one recent survey. The 40th anniversary of the Pregnancy Discrimination Act can give those voters a victory to celebrate this month — and a reminder of the continuing fight to take to the polls next month.

The Arizona midterm election will be held on Tuesday, November 6. Voters can get to know PPAA’s endorsed candidates in its “Meet Our Candidates” interviews and check in regularly on the PPAA website, Facebook page, and Twitter to know the issues in this year’s election.

One thought on “Due Protections: The Pregnancy Discrimination Act at 40

  1. Hi, I’m trying to get more information about this case, my partner was adopted in Scotland , her mother served in the us forces & was forced to give her up, she is going get all her adoption paperwork to discover the full names of her parents, this happened in 1971, I have stumbled across this piece while trying to get information, could you tell me if there are any groups to help reunite people affected by this, if the parties want to , any information or help with this is greatly appreciated,

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