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Hofstra Law Review

Authors

Kendra Fershee

Abstract

Few would agree that pregnancy discrimination is a tolerable by-product of a modern society. Yet there is at least one segment of society where pregnancy discrimination can thrive - federally funded schools. Even though Title IX was passed in 1972 to bar discrimination in school based on sex, it is quite possible for schools to discriminate based on pregnancy with little impunity. Worse, those who suffer the discrimination cannot sue for the harms they suffered in federal court, nor can they seek monetary redress, even if they were financially harmed by the discrimination.

The status of Supreme Court precedent, coupled with the inadequacy of Title IX, makes it difficult for pregnant students to protect themselves from pregnancy discrimination or discourage schools from engaging in the practice. A proactive approach to stemming pregnancy discrimination is crucial for pregnant students, just as it was for working women when Congress passed the Pregnancy Discrimination Act in 1978. Congress should make ending pregnancy discrimination in school a clearly defined goal that is efficient and effective by passing an amendment to Title IX that expressly includes pregnancy discrimination in its prohibition of discrimination based on sex. This article discusses how Supreme Court precedent has coalesced to allow pregnancy discrimination in school to slip through the cracks in Title IX and argues for an amendment similar to the Pregnancy Discrimination Act in Title VII to rectify the problem.

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