a bird and a bottle

A Day Without Blogging
May 1, 2007, 10:19 am
Filed under: Law School, laziness, me

Just a heads-up that posting will be light or non-existent today, as I’ve got to take an exam.

I know it’s sad. All will be back to normal tomorrow.


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.

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.

Objectification and Advertising
February 1, 2007, 10:10 pm
Filed under: feminism/s & gender, Law School

I posted the other day about Mercedes’s ick-inducing new ad. The ad led to a heated exchange on my school’s Law Women listserve.


Next up for debate by email: the Komen Foundation ad that has garnered significant attention around the feminist blogosphere. Though I usually stay out of these e-debates (they tend to get pretty pointed when people can avoid face-to-face confrontation), I jumped in on this one. Here’s what I wrote.

Reactions/disagreements/comments/questions welcome in comments.

Some thoughts on why this ad has inspired so much anger/frustration:

1.) The headless/faceless/identity-less woman in the poster is not so important; it’s her breasts that we need to save (this is a criticism often leveled against the Komen Foundation. Twisty at I Blame the Patriarchy explains what the fuss is about here).

2.) Rather than trying to fight against domestic violence, or at least not glorify it, the ad plays into it, using not only the “wife beater” tank top, but also violent words. The ad almost seems to take domestic violence as a given and figure, “hey we may as well use the fact that our culture is OK with violence against women to our advantage.” But that feels – at least to me – like the wrong approach. First, if we really want progress on breast cancer research, so that women like Molly Ivins don’t have to die, we need to respect the health and well-being women to whom all those breasts are attached. Fighting against DV is a start. Implicitly accepting domestic violence as a condition of our culture takes us many steps backwards.

3) There is definitely a trophy element to the ad, even though it’s not selling anything. At the bottom it says that once cancer (or the woman. Whatever) is “good and dead,” we will “put a pink ribbon on it.” It’s the cancer world equivalent of the Mission Accomplished banner or the S-Class car or the woman whose breasts are represented in the S-Class ad.

photo via teche.

You Know What They Say About Pictures vs. Words
January 25, 2007, 9:28 pm
Filed under: Law School, news & views

One of the former really is worth 1,000 of the latter (click image for full-size photo; see it even bigger here).


Not sure what I mean? Look at the ad; then look at the faces of the people in the line (presumably for work, money, or food).

I’m taking a course called The Law of the Welfare State this semester. I’ll tell you what I’ve learned so far: things haven’t gotten any better since Margaret Bourke-White took this photo in 1936-37.

via Feminist Law Profs via Arse Poetica