Denial of Unemployment Benefits to Otherwise Eligible Women on the Basis of Pregnancy: Section 3304(a)(12) of Federal Unemployment Tax Act

This Note examines the conflicting interpretations of section 3304(a)(12) of the Federal Act. The Porcher decision serves as a point of reference throughout this Note, since opposing constructions of the section were presented in the case. Part I describes the basic framework of FUTA and presents the disparate interpretations of section 3304(a)(12) that have been advanced.

Part II analyzes section 3304(a)(12) with reference to the statutory language and legislative history. As a preliminary matter, this part considers the degree of deference that should be afforded the Secretary of Labor’s certification of state programs that treat pregnancy like all other medical conditions for purposes of denial of benefits. This Note argues that the Secretary’s determination that these plans satisfy the requirement of FUTA is not dispositive because: (1) the statutory language does not vest absolute discretion in the Secretary of Labor and (2) courts are not required to endorse administrative readings that conflict with the enabling statute or the policy behind it. On the basis of the statutory language and the available legislative history, this Note concludes that Congress, in enacting section 3304(a)(l2), intended that a pregnant woman’s necessary separation from work, as determined by the woman and her physician, should not be the basis for denial of benefits if the woman seeks to return to work after childbirth but is not reemployed.

Part III discusses policy considerations relevant to analysis of section 3304(a)(12). Because pregnancy uniquely affects women, statutes that deny benefits because of pregnancy may discriminate on the basis of sex. In addition, Congress and the courts have recognized both the important economic contributions of women in the work force and the fundamental personal and societal interests related to procreation. States that deny unemployment benefits to women on the basis of pregnancy force women to choose between employment and childbirth, thus frustrating these policies.

This Note further contends that treating pregnancy in the same manner as other medical conditions glosses over the fact that virtually all pregnant women must at some point leave their employment to attend to childbirth. Allowing the states to group pregnancy with other medical conditions effectively permits the states indirectly to deny benefits on the basis of pregnancy when they clearly could not do so directly, in disregard of the fact that Congress specifically addressed the issue of pregnancy-related disqualifications in section 3304(a)(l2).