id	author	title	date	pages	extension	mime	words	sentence	flesch	summary	cache	txt
cjgl-8841	Widiss, Deborah A.	Menstruation Discrimination and the Problem of Shadow Precedents	2021	9	.pdf	application/pdf	3711	154	45	”19 The Court cited House and Senate committee reports indicating that Congress believed the dissenting Justices had been correct in interpreting the prohibition on sex discrimination—as initially enacted—to proscribe pregnancy discrimination and that the PDA was intended to “reestablish” the proper interpretation of the law.20 Despite the clarity of the override, some courts have (mistakenly, I believe) continued to apply Gilbert as a shadow precedent in cases that address issues that are similar to pregnancy—in that they are unique to, or primarily experienced by, one sex— but arguably not directly addressed by the text of the PDA. The district court reviewed the history discussed above and concluded that, based on Congress’s repudiation of Gilbert, a “non-frivolous argument” can be made that it’s “unlawful for an employer to treat a uniquely feminine condition” less favorably than similar conditions affecting both sexes.30 Another recent district court case expressed support for this analysis.31 Although the courts’ suggestion that a plaintiff would need to identify a male employee who was treated differently is unwarranted,32 the recognition that menstruation discrimination could constitute sex discrimination is a promising development.	cache/cjgl-8841.pdf	txt/cjgl-8841.txt