The Women Lose

Is pregnancy one more medical disability for which employees should be compensated? No, said the Supreme Court last week by a vote of 6 to 3. At issue was a California law that provides payments for private employees who are temporarily disabled but excepts those with disabilities attributable to normal pregnancy. Speaking for the majority, Justice Potter Stewart found no evidence that California's treatment of pregnant women violated the equal protection clause of the 14th Amendment. Concerned with the costs of increasing disability coverage, he wrote: "Nothing requires the state to create a more comprehensive social insurance program than it already has."

Justice William Brennan saw just such a requirement. In his dissenting opinion, he accused California of creating "a double standard for disability compensation" by excluding "a gender-linked disability peculiar to women" while conferring full benefits for such classic male disabilities as prostatectomies and circumcision. The economic effects of pregnancy, wrote Brennan, are "functionally indistinguishable from the effects caused by any other disability." By Brennan's standards, California's compensation law is a clear case of sex discrimination.

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