고용상 성차별에 관한 미국법의 동향과 우리 법에의 시사점 - 임신으로 인한 차별을 중심으로

Pregnancy has a direct physical and mental impact on female workers who must provide their labor every day at work, and this can easily lead to employment refusals, dismissal options, and limited opportunities for pregnant women and women who may become pregnant. In this article, from the perspective of equality, I examined how women’s pregnancy should be handled in employment relationships based on the development of American legal theory and case law. Title VII of the U.S. Civil Rights Act(1978) clarified that discrimination on the basis of pregnancy constitutes sex discrimination(Sec. 1 of the Pregnancy Discrimination Act), and that women affected by pregnancy must be treated the same as others with similar abilities but not so affected(Sec. 2 of the Pregnancy Discrimination Act). Regarding the meaning of “to be treated the same as others” as stipulated in the second paragraph, in the 2015 case of Young v. UPS, the U.S. Supreme Court ruled that even if an employer has a neutral policy that is not based on intentional aversion to or discrimination against pregnancy, if the employer adjusts or accommodates the work of other employees but does not provide such accommodations to pregnant employees, the employer’s discriminatory intent can be proven by presenting indirect or circumstantial evidence regarding such circumstances, and that the legitimacy of such a policy cannot be asserted simply on the grounds that it is expensive or inconvenient. The Young decision is significant in that it allows even policies that appear neutral but actually have a disadvantageous effect on them to be judged as discriminatory. However, the Young decision still has the limitation of being based on the perspective of a “comparison” of the treatment of pregnant workers and other workers by assuming comparable workers. The problem of pregnancy discrimination can be overcome by ultimately acknowledging the biological differences between men and women in pregnancy and improving the unequal outcomes resulting from those differences through work adjustments and accommodations, which is realizing substantive equality. The U.S. Pregnant Workers Fairness Act, enacted in 2022, stipulates in detail the contents, procedures, and remedies of the obligation to provide general and reasonable accommodations to pregnant workers from this perspective. Our Constitution declares equality between men and women but also emphasizes special protection for female workers and that they will not be unfairly discriminated against in employment, wages, and working conditions. This should be understood to mean that women should be treated equally to men, but that there may be inequality of opportunity due to biological differences in areas related to motherhood such as pregnancy and childbirth, and thus, it is necessary to revise this from the perspective of substantive equality. The development of the U.S. legal doctrine on pregnancy discrimination can be said to be important data supporting the validity of resolving the issue from the perspective of substantive equality.