Proposed in the following memorandum are the essential features of the proposed Working Mothers Protection Act of 1992, and the essential steps of the legislative and political strategy needed to maximize the chance of passage. The intent of the proposed measure is to protect working mothers from losing their jobs due to unlawful employment practices on the parts of their employers.
The law was long reluctant to fully apply civil rights protections on the basis of gender discrimination. However, an "intermediate standard" has gradually evolved, by which policies potentially discriminatory to women are judged by milder standard of scrutiny than those used to judge policies discriminatory with respect to blacks or other racial minorities ("Classifications Based on Sex," no date, 805ff). The law has come to recognize not only the right of protection from discrimination, for women as well as minorities, but also the benefits, worthy of preference by the law, of increasing the range of diversity represented by the institutions of society (Williams, no date).
Existing measures, such as the national Pregnancy Discrimination Act and a California statute that protects women's jobs when they are disabled by pregnancy or childbirth, go some ways towards protecting the rights of working mothers. As early as 1971, in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), the Court rejected the view of an employer in not employing women with preschool children, though hiring men with such children ("Classifications Based on Sex," no date, 815).
In general, these laws protect the right of temporarily unable to work mothers to regain their jobs after pregnancy and childbirth, but gives them no protection in keeping their jobs. Yet, as the current controversy about a "Mommy track" makes clear, employers tend not to view women with children as equal to men (or to childless women). On the one hand, employers regard...