75 Am. U. L. Rev. 1287 (2026).

Abstract

Women have long faced challenges in balancing their employment with childbearing, facing loss of employment opportunities because of their potential for pregnancy and loss of actual employment when they became pregnant. Over the past six decades, Congress and the U.S. Supreme Court have taken actions with the potential to provide equal employment opportunity for women affected by pregnancy, but those efforts have largely failed because of the actions of lower federal courts in interpreting legislation and the Court’s decisions in ways to reduce protection for pregnancy. The most recent congressional action to protect pregnancy, the Pregnant Workers Fairness Act, was enacted in 2023 and is just now starting to be interpreted by the lower federal courts. Early decisions under the statute are mixed, with some of those decisions threatening to once again deny women affected by pregnancy the promise of equal employment opportunity. It remains to be seen whether the promise of the Pregnant Workers Fairness Act will be achieved, such that women will achieve the fundamental right not to be punished in their work lives for taking actions to further their family lives.

* Robert J. Lynn Chair in Law, Michael E. Moritz College of Law, The Ohio State University. I would like to thank the current and past administrations of the Moritz College of Law, including the six deans under whom I have served, for their support of my scholarship, not only by the awarding of summer research grants to facilitate that research, but also by being my supportive academic home for the past thirty-eight years. I also want to thank my many faculty colleagues, past and present, who have read drafts, provided helpful input, and shown interest in my ideas.