a bird and a bottle

Another Reason Why the Supreme Court Needs to Address Pregnancy Discrimination

As I have noted before, the Supreme Court’s pregnancy discrimination jurisprudence is pretty stingy. In Geduldig v. Aiello, the Court held that under the Equal Protection Clause, pregnancy discrimination is not sex discrimination. In the (in)famous footnote 20, the Court explained why:

hile it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed [417 U.S. 484, 497] to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

So pregnancy discrimination is not sex discrimination under the Equal Protection Clause of the Fourteenth Amendment because the line is not drawn between men and women but between pregnant people (who are only women) and non-pregnant people (men and women).

Congress was unhappy with this result and passed the Pregnancy Discrimination Act, which specifies that for the purposes of the federal anti-discrimination statute (Title VII), pregnancy discrimination IS sex discrimination. But the constitutional holding in Geduldig stands.

And today I read on the Feminist Wire that Pregnancy Discrimination claims are at an all time high.

A record 4,901 pregnancy discrimination complaints were filed with the Equal Employment Opportunity Commission (EEOC) in 2006. However, the actual number of pregnancy discrimination cases may be higher, as many women see filing complaints as a “career killer,” said EEOC spokesperson David Grinberg, according to the Baltimore Sun.

The most common discrimination complaints from pregnant women are unlawful demotions, firing, and not being hired in the first place, according to the Kaiser Daily Women’s Health Policy Report. Maria Salacuse, an EEOC attorney in Baltimore, said that as more women become aware of their rights under the law, more are willing to file complaints, according to the Sun.

Yes, these complaints are made to the EEOC and are controlled by Title VII and the Pregnancy Discrimination Act…and so discrimination on the basis of pregnancy is illegal and women can file suit under Title VII. But go one step further. Why is there still so much discrimination on the basis of pregnancy? I would argue that it’s at least in part because the of the Supreme Court’s stance on pregnancy. There’s less of an incentive to sue if you can recover only under Title VII and not for a constitutional violation as well; employers know this and so there’s less of an incentive to prevent discrimination.

Part of this, of course, is a result of the continuing problem of work/life balance; employers expect that women will not continue to work after giving birth, so why not push them out during pregnancy and avoid dealing with their maternity leave. But it’s not only that. Because when the Supreme Court has sanctioned discrimination on the basis of pregnancy, it gives employers a pass.

It’s time for the Supreme Court to bring its pregnancy jurisprudence into the 20th century, particularly now that it’s the 21st.


On the Costs of the Death Penalty
March 23, 2007, 10:22 am
Filed under: academe, civil rights, criminal justice, law, news


Whenever I engage in a debate about the death penalty (admittedly, not that often in the political echo chamber that is my family and friends), I inevitably run into this argument: but it’s so much cheaper to kill someone than to keep them incarcerated for life. This, of course, is blatantly false as study after study attest (I know, there are studies that go the other way too. That’s the funny thing about numbers – you can make them say whatever you want).

So maybe when arguing against the death penalty from an economic efficiency standpoint, the best thing to do is use not statistics, but raw numbers.

So here you go: According to an article in today’s Atlanta Journal Constitution, which also features the cool graphic above (click the image for full-size), it will cost over $4 million to prosecute Brian Nichols, who is accused of going on a shooting rampage killing four people last year. Clearly a bad guy. But $4 mil to make sure he ends up dead? And that figure doesn’t even include the expense of actually executing him, should he be sentenced to death. The paper reports:

In large part, the spiraling costs stem from prosecutors’ decision to seek the death penalty. Capital cases require more lawyers, prolonged pre-trial hearings and lengthy trials entailing weeks just for jury selection.

Nichols has offered to plead guilty in exchange for life in prison without parole. But Fulton County District Attorney Paul Howard insists that a jury must decide whether Nichols should be executed.

Nichols has offered to plead to life in prison without parole. That would cost a whole hell of a lot less than $4 million (again, a number sure to rise if he is convicted). The bottom line is that the reason the death penalty exists is not because it’s more economically efficient, but because people like retribution and they think it can only come through death.

But there’s no guarantee that a $ 4mil prosecution gets you the truth.*

(Via Sentencing Law & Policy Blog)

* and even if it did, I would not support the death penalty.

This is Not Okay
March 7, 2007, 6:02 pm
Filed under: academe, feminism/s & gender, Law School, news & views, NYC, sexuality

Check out Jill’s post “Hi, I’m Jill, and scummy law school sleazebags have gone after me too.”

Jill is in full-on righteous anger mode and it is damn good. So all you autoadmit creep? Watch out.

Haikus for Repro Justice
March 1, 2007, 12:10 pm
Filed under: academe, frivolity, Law School, news & views, reproductive justice

Yale Law Prof Jack Balkin thinks the haiku is the “academic soundbite of our times.” He takes up Jim Gibbon’s challenge in the academic haiku contest to summarize one’s latest academic work (article, dissertation, etc.) in a seven syllable verse.

Here’s what he comes up with (to represent this article about abortion and original intent):

Original meaning,
The Living Constitution,
Are one and the same.

Abortion bans are
Compulsory motherhood,
Class legislation.

Brilliant. I’m still working on mine.