Working for Justice

Biology Isn’t Destiny, Or Pregnant Lawyer v. “Working Mother”

As a man, my spouse didn’t have the option of trying to get pregnant. I was the one with options. For me, among those options, pregnancy felt like the least complicated, even the second time, when I feared but didn’t know for sure that I might face the unremitting sickness yet again.

By contrast, we were both fortunate enough to have fairly extensive options when it came to decisions about parenting and employment. So long as we were willing to live modestly, either of us could have stayed home, leaving the other to be the sole wage earner. In the alternative, we could likely have configured things so that each of us could have continued to work in our chosen profession for a wage; together, we could have made enough money to pay for quality day care. Both of us do work that in principle can be done from home, though neither of us had a job where that would have been possible on a regular basis.

Weighing our options, we made our decisions: I got pregnant, gave birth, took leave, and returned to work; my spouse quit his job and stays home with our baby. Now I am pregnant again, and if all goes well we will continue along the same lines.

In our choices, we have resisted the idea that our biology defines our parental roles. I am a mother, but I am not the primary caregiver of my child. Certainly, I ask myself questions that any working parent may have occasion to ask: is it a problem that on a normal weekday I will see my child for about two waking hours, and will never be home for bedtime? But to the extent that anything I do may be characterized as a sacrifice, I resist the idea that it should be attributed to my status as a “working mother.” Indeed, I resist the very concept of the “working mother,” to the extent that it creates or reinforces a gendered implication that there is something particularly heroic, malign, or anything in between about a mother (as opposed to a parent) who chooses to, or has to, work outside the home.

To be clear, this is not to ignore the economic reality that many parents will find themselves limited in their ability to choose or reject the role of wage-earner by entrenched, gender-based pay disparities, which most often push fathers toward the workplace and mothers toward the home. Instead, I resist the lionization of the “working mother” because its erasure of the “working father” reinforces and perpetuates those same inequities.

Why, then, would I insist that biology is also destiny? Importantly, as unpleasant and personally “complicated” as pregnancy has been for me, nothing I have experienced to date in either pregnancy can properly be called a “complication.” Some degree of nausea, headaches and the like are essentially normal features of pregnancy in the first trimester, if not longer, and they pose in themselves no danger to the fetus. Similarly, every other physical unpleasantness or limitation that I experienced in my first pregnancy – backaches and sciatica, round ligament and other mysterious aches and pains, extreme fatigue, and probably others that I fortunately can’t remember – is properly characterized as a normal feature of pregnancy.

By contrast, with some recent and still notably infrequent exceptions, the idea that normal pregnancy can constitute a state of physical limitation requiring accommodation in the workplace is pretty much anathema to the law. While the ADA, as amended in 2008, recognizes specific disabilities associated with pregnancy, courts and even advocates have historically resisted the idea that normal pregnancy is disabling. Before I was pregnant, this seemed to me a not unreasonable position. Now, not so much.

Biology isn’t destiny – probably not the catchiest slogan for a movement toward legal reform for pregnant and parenting employees. But perhaps a good starting point, to shed, or at least to question, the assumptions that may be part and parcel of what’s holding us back.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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