An Economic Analysis of Sex Discrimination Laws

Abstract

of the United States at 40 table 49 (cited in note 19). Of course, this figure may decline since fewer women are marrying nowadays. On the changing demographics of American women, see Heidi I. Hartmann, Changes in Women's Economic and Family Roles in PostWorld War II United States, in Lourdes Beneria and Catharine R. Stimpson, eds, Women, Households, and the Economy 33 (Rutgers, 1987). 22 In 1986, out of 51,704,000 married couples in the U.S., only 181,000 (0.35 percent) consisted of a white and a black. Statistical Abstract of the United States at 40 table 50 (cited in note 19). 23 This depends in part, however, on the structure of family and divorce law, which determines the wife's entitlements in her husband's income. 24 Although there is discrimination against men, I shall ignore it. A more important phenomenon that I do discuss is policy that is designed to combat discrimination against women and has the incidental effect of harming men. This content downloaded from 207.46.13.118 on Sun, 11 Sep 2016 05:47:03 UTC All use subject to http://about.jstor.org/terms 1318 The University of Chicago Law Review [56:1311 lematic than it may appear to be, because it leaves unresolved the question whether it is discriminatory (in a sense pertinent to public policy) to treat a woman differently because of a characteristic that no men but only some women have, such as the capacity to bear children. The Supreme Court in Gilbert held that such differentiation was not discriminatory,25 but the Court was overruled by Congress. I shall follow Congress's approach and assume that discrimination based on pregnancy is a form of sex discrimination-which is not to say, of course, that it necessarily is