This Article focuses on restructuring the workplace in the context of maternity leave. Although most women are no longer, and, indeed, generally cannot be required to take maternity leave, many are not guaranteed leave or may be provided only with inadequate leave. A minority of states have addressed this problem by enacting statutes requiring that all employers provide job-protected maternity leave. Two of the statutes, the California and Montana provisions, have been challenged as discriminatory under Title VII of the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment, and the Supreme Court has recently agreed to consider the validity of the California provision.
This Article considers whether the gender-specific approach incorporated in state maternity leave provisions is a legally valid means to restructure the workplace. Part I presents an overview of current maternity leave policies and dispels the common presumption that maternity leave is "virtually universal." Part II analyzes the two primary solutions to the maternity leave problem suggested by current theories of discrimination, and argues in favor of an approach that takes into account sex differences. Part III discusses the structure of the state maternity leave provisions, and the legal issues raised by those provisions under a sex differences approach. Part IV examines whether the courts have considered those issues in the legal challenges brought to date of the state provisions. Although the courts have thus far upheld the state provisions against challenges brought under both Title VIII and the equal protection clause, they have done so largely by avoiding both the question of whether sex differences can be taken into account by gender-specific legislation, and if so, whether limits can be imposed on such legislation. Part V suggests that although the Supreme Court has adopted a differences approach under both constitutional and statutory analysis, it is an approach that is neither clear in theory nor consistent in application. The questions raised by the Court's analysis, and a suggested refinement of its approach, are set forth in the final section.
Nancy E. Dowd, Maternity Leave: Taking Sex Differences Into Account, 54 Fordham L. Rev. 699 (1986), available at http://scholarship.law.ufl.edu/facultypub/433