Pregnancy Discrimination Act

[Douglas Laycock]

        The Pregnancy Discrimination Act as to the states is section 5
legislation.  It could be done under the Commerce Clause, and until
recently the Court said the question is whether Congress has the power, not
which power Congress invoked.  But one of the recent federalism cases
claims to change that as well.  If the Court is serious, Congress would
have to re-enact the PDA's application to the states under the Commerce
Clause.

        As to constitutionality under section 5, the PDA expressly rejects the
Court's definition of sex discrimination; it says that what the Court said
was not sex discrimination is sex discrimination.

        As to disparate impact, it is equally unclear how disparate impact
liability can survive Boerne.  Disparate impact is emphatically not a
constitutional violation after Washington v. Davis.  Boerne suggests that
disparate impact might be enough, but it does not explain why.  And it
says, contrary to Smith and every previous academic analysis, that neutral
laws that burden religious practice are not even disparate impact.

        We squarely put these questions to the Court in Boerne, and except for the
1965 Voting Rights Act, there is not a hint of an answer.  It is reasonable
to predict a grandfather clause for older legislation, a brute force
distinction for race and sex cases, or blandly ignoring the issue (as in
last Term's voting rights case from California, upholding application to a
non-covered city within a covered state.)  But reasoned distinctions have
so far been totally lacking.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu