Publication Date
8-30-2026
Abstract
In Geduldig v. Aiello (1974), the U.S. Supreme Court held that pregnancy discrimination does not constitute sex discrimination. The decision’s constitutional logic has recently been applied in Dobbs v. Jackson Women’s Health Organization and United States v. Skrmetti. Yet over five decades, state courts have overwhelmingly rejected Geduldig’s rationale—both in construing state employment discrimination statutes and in interpreting state constitutional equality provisions. Courts in at least sixteen states have rejected Geduldig’s rationale in construing state employment discrimination laws, while only four states have followed it. Of the ten states with Equal Rights Amendments that have addressed whether pregnancy discrimination constitutes sex discrimination, eight have rejected the federal approach. Several state courts—most notably in New Mexico and Pennsylvania—have offered detailed explanations of the logical flaws in Geduldig’s reasoning. This Essay surveys that body of state jurisprudence, identifies the doctrinal and logical critiques state courts have leveled against Geduldig, and argues that the Supreme Court should engage with these state-level trends as it does in other areas of constitutional law.
Recommended Citation
Martha F. Davis,
Geduldig's Footnote: Five-Plus Decades of State Courts Reckoning with Federal Pregnancy Discrimination Doctrine,
121
Nw. U. L. Rev.
185
(2026).
https://scholarlycommons.law.northwestern.edu/nulr/vol121/iss1/7
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