Beyond Pregnancy by maqboolshahin

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									“Beyond Pregnancy: State Reproduction Policies and Federal Litigation Patterns of the Pregnancy Discrimination Act of 1978”

Michelle D. Deardorff Associate Professor of Political Science Jackson State University Department of Political Science P.O. Box 18420 Jackson, MS 39272 601.979.2822 michelle.d.deardorff@jsums.edu

DeWanda Green Jackson State University Department of Political Science P.O. Box 18420 Jackson, MS 39272 dewanda_green@yahoo.com

This paper was prepared for presentation at the Southern Political Science Association Annual Meeting in New Orleans, LA, January 8-10, 2005.

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In response to a 1976 Supreme Court decision ruling that pregnancy discrimination was not sex discrimination, Congress passed an amendment to Title VII of the Civil Rights Act of 1964!the Pregnancy Discrimination Act of 1978 "PDA#. The PDA provides that any discrimination on the basis of pregnancy, childbirth or any pregnancy-related medical conditions was a form of sex discrimination, and thereby protected under Title VII. No longer could the Court or employers argue that pregnancy discrimination differentiated between the pregnant and the nonpregnant, thereby avoiding a violation of the equal protection clause’s prohibition against gender discrimination. As a consequence, employers who have disability programs for their employees cannot exclude pregnancy and related conditions from covered attributes. Litigation patterns have been very uneven across the circuits and not in the manner expected "based on patterns of litigation overall#. There are 384 published district court cases between 1978 and 2003 and only 71 appellate court cases; this project is based on a data set of published opinions of the federal courts surrounding the application and definition of this statute "1978-2003#.1 The cases are fairly typically distributed between the appellate and district courts, it has yet to be determined if this is a typical distribution for employment discrimination cases. In looking at the following frequencies, it is clear that some circuits have much higher levels of litigation, this is typical of certain circuits. However, when we examine the distribution of states within these circuits and then examine the distribution of litigation among the states, it becomes clear that it is not simply that one circuit is generating more pregnancy litigation than others. Instead, a few states generate a disproportionate number of cases. All of these states!Illinois, New York, Kansas, Pennsylvania, Texas, and Florida!are not necessarily known for excessive litigation "e.g., Kansas and Pennsylvania#. This may indicate that what is significant are factors within the state regarding pregnancy discrimination, not the federal factors held constant. This paper examines state statutory law in the area of pregnancy discrimination protected by the PDA to determine if the patterns of state and federal litigation are parallel. More specifically, this paper will compare state regulations regarding pregnancy discrimination and the cases that have been litigated in the state with litigation levels in the federal circuits "at the district and appellate level#.

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Federal Pregnancy Discrimination Protections Unlike many European countries, the United States provided no clear federal guidelines to employers for the treatment of pregnant employees in the workplace; instead, each state generated independent regulations. While Title VII of the Civil Rights Act of 1964 prohibited gender discrimination in the workplace, there were many limitations on this provision. Congress passed the Equal Opportunity Act of 1972 that provided the Equal Employment Opportunity Commission "E.E.O.C.# with the authority to enforce their findings of discrimination and made, for the first time, all levels of government "state, local, and federal!except for Congress# subject to Title VII. At the state and local level alone, over ten million employees gained coverage under Title VII "E.E.O.C.#. Pregnancy was not directly mentioned in Title VII; however, as women become increasingly desirous of working through their pregnancies!especially married, middle-class women!pressure began building on the E.E.O.C. to protect their rights. The E.E.O.C. in 1972 decided that disabilities related to pregnancy should be treated by employers the same as any other temporary disability "Gardin and Richwald 1986, 459#. This reliance on formal equality, the treatment of men and women as identical under the law, has been the consistent interpretation of Title VII. In the 1974 case of Geduldig v. Aiello, the Court found that if there is no demonstrated intent to discriminate against women, laws that classify on the basis of pregnancy do not violate a Fourteenth Amendment equal protection ban against gender-based classification. They stated that the distinction was not between men and women but between “pregnant women and non-pregnant persons.” A second Title VII challenge against pregnancy discrimination was made in General Electric Company v. Gilbert "1976#. In this case, the benefit program of the employer denied women pregnancy benefits while men were covered for a large number of temporary disabilities. The Court upheld this disability plan using the rationale in that the plan discriminated against pregnant workers and not women, therefore not violating Title VII. The Pregnancy Discrimination Act of 1978 In direct response to the Gilbert decision, Congress passed an amendment to Title VII!the Pregnancy Discrimination Act of 1978 "PDA#. The PDA provides that any discrimination on the basis of pregnancy, childbirth or any related medical conditions is a form of sex discrimination, and

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thereby covered under Title VII. No longer could the Court or employers argue that pregnancy discrimination differentiated between the pregnant and the nonpregnant, thereby avoiding violating the equal protection clause prohibition against gender discrimination. As a consequence, employers who have disability programs for their employees cannot exclude pregnancy and related medical conditions from covered disabilities. Title VII and the PDA provide formal equality for pregnant women requiring that employers treat them in the same manner with parallel benefits as other similarly-situated employees "Williams 1984-1985, Vogel 1990#. Much of the lower and Supreme Court decisions have focused upon determining the appropriate comparative classes for pregnant women. While the Supreme Court has ruled on the meaning and application of the Pregnancy Discrimination Act in a few limited areas!such as, treating pregnancy-related disabilities as the equivalent to non-pregnancy-related disabilities "Newport News Shipbuilding and Dry Dock Co. v. EEOC "1983#, the constitutionality of additional state provisions for pregnancy "California Federal Savings and Loan v. Guerra "1987#, the constitutionality of no additional state provisions for pregnancy "Wimberly v. Labor and Industrial Relations Commission "1987#, and the legitimacy of employee interest in fetal protection "International Union, UAW v. Johnson Controls "1991#!the majority of interpretations regarding pregnancy discrimination have derived from the lower federal courts. In recent years, over 4,000 cases of pregnancy discrimination annually have been brought to the Equal Employment Opportunity Commission and/or the state Fair Employment Practices Agencies "Equal Employment Opportunity Commission "EEOC# 2004#. These numbers have increased in recent years,2 this may be due in part to the passage of a second federal statute that also protects pregnant workers, the Americans with Disabilities Act of 1990. The Americans with Disabilities Act of 1990 The ADA defines as disabled “any individual who "i# has a physical or mental impairment which substantially limits one or more of such person’s major life activities, "ii# has a record of such an impairment, or "iii# is regarded as having such an impairment.” This definition extends discrimination protection not only to people with disabilities but to people with disabilities but to people who were previously disabled or might be assumed to be disabled. This definition recognizes that the stereotypes regarding disabilities are frequently as handicapping as the actual disability and

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allows the law to be applied to pregnant workers. This ADA moves beyond the formal equality assumed by the Civil Rights Act of 1964, Title VII, and the PDA. Instead of requiring that disabled and non-disabled be treated identically, the ADA not only requires that disabled individuals be treated no worse than similarly situated able-bodied individuals, that in certain circumstances they be provided accommodations or treated differently to acquire an equal outcome. Unlike Title VII, the ADA does not require formal equality, but instead seeks to find a form of substantive equality. Substantive equality is a response to the many critiques of formal equality over the years. A constant concern has been that formal equality is inadequate to provide a working environment where women are treated fairly "MacKinnon 1979, 1987, Scales 1986, Cicoria 1987, Kenney 1995, Ellis 1996, Williams 1998#. According to Mary E. Becker "1987# it is inadequate for several reasons. First, how can you compare people who are commonly situated when only a limited number of individuals are similarly situated. Second, “women who are perceived to be like men are entitled to be treated like men. This ‘nondiscrimination’ rule is not neutral with respect to sex; it is androcentric” "207#. Third, “(f)ormal equality assumes that it is impossible to ignore an individual’s sex” "209#. Becker also argues that formal equality works best when women are perceived to be similar to men!pregnancy is the condition most contrary to a law normed to the male experience.

Methodology This project is drawn from a data set, collected by the two of us, of all published opinions of the federal district and appellate courts exploring the application and definition of the Pregnancy Discrimination Act of 1978 and the Americans with Disabilities Act of 1990. These cases were identified from the Federal Supplement and Federal Edition series that reports all published district and appellate court cases "tapped through Lexis-Nexis and Westlaw services#. These are the primary outlets of opinions published by federal judges, and despite their limited sample "Olson 1992#, provide the basic data used by scholars. While published decisions are significant, “lower courts have begun to dispose of an increasingly large number of cases without a published decision . . . . In 1964 the Judicial Conference of the United States requested that the federal courts limit the number of published opinions by publishing only opinions that have precedental value” "Davis and Songer

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1988-89, 63#. The Federal Supplement is estimated to represent approximately 5% of all cases ruled from the district courts "Carp and Rowland 1983, 16#. To supplement this source and provide a more complete representation, cases reported in the Federal Employment Practices Digest were also coded. With the advent of the internet and Lexis-Nexis more cases are able to be published than previously. The data set is formed from over 500 district and appellate decisions. These cases come from all eleven circuits and the District of Columbia circuit, representing all fifty states, the District of Columbia, and territories. These cases span from 1978 "the date of the passage of the Pregnancy Discrimination Act# through 2003; the database is continuously updated. Currently there are 471 cases coded, we have not yet coded the years 2003-2004 and this absence partially explains the discrepancy between the number of cases coded and cases filed. The Exclusion of Unpublished Cases Scholars have agreed that there are significant differences between published and unpublished cases "Songer 1988, Siegelman and Donohue 1990, Olson 1992#. Every circuit creates criteria for decision publication, but the common denominator is that the decision must have precedental value "Songer 1990#. However, scholars have found that a significant number of non-published decisions demonstrate judicial discretion, are non-routine in nature, and are politically relevant "Songer 1990#. Donald Songer "1988# found in one study of federal district courts approximately 50% of the cases before the Supreme Court derived from unpublished district court cases. Nevertheless, most examinations of judicial decision-making and the development of legal doctrines have used methodologies relying solely on published decisions. In large part, this is because of the incredible barriers to obtaining cooperation and cases from the individual clerk of courts in every district. Studies that have looked at unpublished cases have focused on specific districts "Siegelman and Donohue 1990#, individual states "Olson 1992#, or legal categories that are easily tracked "Stidham and Carp 1995; Ringquist and Emmert 1999#. There are rarely completed dockets of all cases sorted by type of litigation and most databases provided by the courts do not code factors of interest for social scientists. As one researcher argued in his 1995 American Political Science Review article, `“this study is not concerned with cases that do not reach the decision stage, since it is the direction of final decisions that is of interest. This one point minimizes a great deal of concern for using published district court cases” "Lloyd 1995, 414#.

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Other scholars have concluded that ignoring unpublished decisions may be particularly dangerous in probabilistic data, but “using reported cases may be most justifiable for a researcher who is trying to study efficiently the published policy output of district courts” "Olson 1992, 795#. However, the research of Peter Siegelman and John R. Donohue III "1990# does demonstrate how the use of only published cases could result in a misreading of a policy. In their comparison of published and unpublished employment discrimination cases, Siegelman and Donohue found these decisions varied in “significant and predictable ways.” In their cases they found significant differences in the occupational distribution of plaintiffs, the types of discrimination being contested, the laws under which the litigation is brought, and the outcome of the litigation. The authors conclude their analysis with the following comment: We are certainly not advocating the abandonment of research using published opinions. . . . We do want to suggest, however, that researchers!including those doing qualitative work!need to make more of an effort to correct for the ways in which focusing on cases with published opinions yields unrepresentative results "1166#. Prior research "Deardorff 2004# of this database has found that the difference between unpublished cases "reported in LEXIS-NEXIS and FEP Digest# and published cases has been that published cases were generally more focused on substantive issues and unpublished cases are usually regarding procedural matters "e.g., determining class action status or standing# addressing substantive issues through their dicta.

Federal Litigation Patterns While this research is still ongoing, the significance of pregnancy discrimination litigation and simultaneous paucity of scholarly research is striking. The majority of employees struggle with the balance of work and family at some time in their working lives. For working class women, this struggle may precipitate their slide into poverty and dependence. In fact, our research has found that 67% of federal cases filed have originated from litigants in hourly or lower-prestige salaried positions. 27% are litigants in a professional or managerial position "generally requiring a college degree# and only 5% are in professions in which advanced degrees are required "lawyers, doctors#.

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Federal legislation declaring pregnancy discrimination unlawful is relatively recent, yet has been heavily tested in the courts. This research project should reveal how the courts have enforced this litigation and the tools available to employees and employers in resolving this perennial struggle. In examining the publishing of pregnancy discrimination cases at the federal level, several trends became evident. Longitudinal Trends in the Publishing of Cases While the PDA was passed into federal law in 1978, no federal cases were filed until 1985 and it wasn’t until several years after the passage of the ADA, in 1994 that over twenty pregnancy discrimination cases were published annually. That trend continues today. After 1994 there have been no years with fewer than 25 federal pregnancy discrimination cases published and in 1998 and 2000 the count was as high as 62 cases. It is possible that one reason for the dramatic upturn is the increased ease of publication of district court cases through electronic databases and search engines. This hypothesis has not yet been tested.

Number of Federal Pregnancy Discrimination Cases Published 1978-2004
70 60 50 40 30 20 10 0

88

90

92

94

86

82

84

80

78

19

19

19

19

96

98

00

19

19

19

19

19

Number of Federal Cases Published

Gender of Litigants Only one percent of cases filed are by male litigants in pregnancy discrimination cases, resulting in only six cases. This seems to be quite different from the trends in other forms of employment discrimination cases where male litigants do predominate. Females compose of 92% of the litigants "n = 376 cases#, five percent of the cases are female class action lawsuits "n = 17#, and two percent of

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19

19

20

20

20

02

04

the cases are conjointly filed by both genders. We do not yet know whether or not males disproportionately succeed in these pregnancy discrimination cases. PDA versus ADA 73% of cases are filed under the Pregnancy Discrimination Act "n = 412#; in fact, almost as many cases are filed "n = 78# under the auspices of both the ADA and PDA, as only under the ADA "n = 76#. Yet the data indicates that the ADA is the more successful route for plaintiffs and the PDA is more beneficial in supporting the arguments of the employer. Under PDA claims, the employer has been successful in 208 cases, the plaintiff successful in 90 cases, and it was a split decision for both in 50 cases. While there are far fewer ADA-based cases, the trend is the exact opposite. In 40 cases the plaintiff was successful and the employer’s claim passed legal muster in only 13 cases. There were only three cases in which there was a mixed ruling. As more ADA claims reach the federal courts and these precedents mature, we will need to if these trends continue.

Federal Court Decisions Pregnancy Discrimination 1978-2002
250 200 150 100 50 0 Ruling for Defense Ruling For Plaintiff Mixed Ruling Americans with Disabilities Act Pregnancy Discrimination Act

It still needs to be determined if these frequencies will demonstrate that the PDA is harder to legally prove discrimination due to its statutory requirements or if it is because the PDA "under Title VII# provides employers more easily demonstrated affirmative defenses for their discrimination. District and Appellate Court cases As would be expected by the judicial decision making literature, there were 384 published district court cases that were coded and only 71 appellate court cases. This is a fairly typical

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distribution between appellate and district court cases, it has yet to be determined if this is a typical distribution for employment discrimination cases. The district courts have been frequently deemed “the workhorses of the federal judiciary” because this is where most lawsuits regarding federal statutes both commence and end "Abraham 1998#. According to one author, only about 13% of district court cases are appealed, which was an increase from a rate of 4% in 1975. The courts of appeals uphold district courts approximately 67% of the time "Hughes 1995, 39#. More than the appellate courts, “district courts judges . . . engage in the nuts and bolts of policy making from formation through implementation” "Ringquist and Emmert 1999, 8#. This fact does not minimize the significance of federal circuit courts; in only one year the appellate courts and their approximately 179 judges decided over 23,000 cases "Epstein 1995#. In the vast majority of cases, however, appellate courts “make national law residually and regionally” "Howard 1973, 50#. Because few cases are appealed to the Supreme Court and even fewer are heard by the Court, the court of appeals are often the final decisive voice in litigation. This power of the district and appellate courts is complicated by the fact that these courts do not rule uniformly or consistently "Harrington and Ward 1995#. In this data set we have excluded the Supreme Court cases. The distribution among circuits incorporates all district court cases, as well as appellate court. In looking at the following frequencies, it is clear that some circuits have much higher levels of litigation, this is typical of certain circuits. The power of the district and appellate courts is complicated by the fact that these courts do not rule uniformly or consistently "Harrington and Ward 1995#. Lower courts vary in rates of dissent "Goldman 1975#, depth of caseload "Judicial Conference of the United States 2002a, Table B-1; Harrington and Ward 1995#, on the basis of region "Carp and Rowland 1983; Harrington and Ward 1995#, and the degree of supervision by the Supreme Court "Howard 1973#. So, the fact that the circuits vary in the number of pregnancy discrimination cases they hear may not be surprising. However, when we examine the distribution of states within these circuits and then examine the distribution of litigation among the states, it becomes clear that it is not simply that one circuit is generating more pregnancy litigation than others.

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Instead, a few states generate a disproportionate number of cases. These states—Illinois, New York, Kansas, Pennsylvania, Texas, and Florida—are not necessarily known for excessive litigation (e.g., Kansas and Pennsylvania).
DISTRIBUTION OF DISTRICT AND APPELLATE COURT CASES BY CIRCUITS PREGNANCY DISCRIMINATION CASES 1978-2002 1st MA 7 ME 1 NH 4 PR 7 RI 0 2nd CT 5 NY 65 RI 2 VT 0 3rd DE 0 NJ 4 PA 26 VI 0 4th MD 6 NC 7 SC 2 VA 5 WV 0 5th LA 11 MS 3 TX 31 6th KY 2 MI 14 OH 8 TN 2 7th IL 112 IN 4 WI 2 8th AR 0 IA 5 MO 4 MN 7 ND 0 NE 2 SD 2 9th AK 0 CA 9 HI 0 ID 0 MT 0 NV 4 OR 4 WA 2 19 72 30 20 45 26 118 20 19 46 35 5 10th CO 4 KS 30 NM 3 OK 7 UT 2 11th AL 12 FL 18 GA 5 12th DC 5

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This may indicate that what is significant are factors within the state regarding pregnancy discrimination, not the federal factors held constant. To test this supposition, we wanted to examine potential state-based factors that might explain the different in litigation in the area of pregnancy discrimination. Unlike the federal courts, there was been much less research conducted that explores these state factors. However, we decided to examine the level of state litigation on pregnancy discrimination, the different types of state laws surrounding pregnancy discrimination, the existence of state Equal Employment Opportunity "EEO# and Fair Employment Practices "FEP# offices, and the visible presence of these organizations in assisting citizens in resolving discrimination complaints. State Levels of Litigation Our first hypothesis posited that states with high levels of state litigation surrounding pregnancy discrimination claims in employment would also have high levels of federal litigation in pregnancy discrimination. We believed this to be the case because of the potential for climate in which employment discrimination claims were respected and in which assistance "legal and political# was available to file suits. However, we also realized that a negative relationship was possible due to the fact that if there were no state provisions for legal protections, citizens could choose to file their claims in a federal arena. To test these assertions we measured the levels of state litigation in the same way we developed the federal database!we used LEXIS-NEXIS to identify pregnancy discrimination cases. We included cases as early as they were recorded in LEXIS-NEXIS "which could result in some variability from state to state# and only included cases that dealt with the substantive issues of pregnancy discrimination, not the procedural court issues "e.g., should a case be heard en banc#. States that had the highest levels of state litigation "California, Michigan, and Ohio# were not the same high litigative states identified by the federal study. Neither a positive or negative relationship was demonstrated to be statistically significant.

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State and Federal Pregnancy Litigation
120 100

Number of Cases

80 60 40 20 0
lab A ama C rka on ns ne as ct ic u Fl t or id a Id ah o I L ow M ou a as isi sa an ch a M use iss tts iss N ipp eb i N ra N ew ska or th Jers C ey ar O olin kl R a a ho ho de ma I T slan en ne d V ssee W er es mo tV n irg t in ia A

Federal Litigation State Litigation

States

State Legislative Provisions It also seemed possible that the level of protection provided by the State Code would explain variance in federal litigation in the states. We hypothesized that states with the strongest level of statutory protection would have the highest numbers of cases. We believed that a political culture that valued the legislative protection of female workers would result in higher levels of employment discrimination cases. However, it was possible that the opposite relationship could also be demonstrated!if states with strong levels of employment protections did not require federal litigation to protect its employees. To test this hypothesis, we placed all state pregnancy discrimination legislation into four levels of protection. The “No Protection” category included all eighteen states that had no mention of pregnancy discrimination in their state code. “Low Protection” category included the seven states that placed a general statement in their statutory code noting that pregnancy falls under gender discrimination, but made no specific guarantees of that protection. Falling under “Medium Protection” are the 22 states that adopted the federal protections in their state code. More specifically, these states guarantee maternity leave, seniority protections, and job accommodations must parallel other similarly situated, temporarily disabled employees "modeling Title VII of the Civil Rights Act of 1964 language#. Finally, the “High Protection” category makes very specific statutory guarantees beyond

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the federal protection, these protection include extensive guarantees of maternity leave, breastfeeding protections, or specific accommodations. Only four states "Washington, Pennsylvania, Idaho, and California# fall under this category.

State Statutory Provisions for Pregnancy Discrimination
High Provisions 8%

No Provisions 35% Medium Provisions 43%

Low Provisions 14%

When the appropriate statistical tests were run, there was no significant correlation between state legislative provisions and federal or state litigation levels. However, the relationship between state litigation and protective legislation was a positive one and the relationship between federal litigation and protective legislation was a negative one. States that provide legislative protections may not require the use of the federal courts as extensively as those states with lower levels of protection. Existence of State EEO and FEP Offices Our third hypothesis was that states which have their own Equal Employment Opportunity or Fair Employment Practices offices would have higher levels of state litigation and lower levels of federal litigation. Our assumption was that these offices would facilitate state litigative activity and would lessen the need for federal litigation. Learning from our previous test, we believed that states with no legal or political protections for pregnant workers would therefore rely more heavily on the federal Equal Employment Opportunities Office and use federal courts and law as a means of recourse. States were identified through a search of each states’ website of state offices and using various lists of types of state departments protecting against employment discrimination. In every state these offices are variously titled "Office of Civil Rights or Office of Human Rights,

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Departments of Labor and Employment, or the more traditional named EEO or FEP offices#. It was confirmed from various sources that only three states "plus the District of Columbia# have no such office. Again, while the direction of the relationship was correct!states with offices have higher levels of state litigation and states without offices have higher levels of federal litigation!the relationships were not statistically significant. This variable was a not predictive when it came to federal litigation levels. Visibility of State EEO and FEP Offices The final hypothesis surrounds the role the state EEO offices have carved out in the processing and facilitating of employment discrimination complaints, particularly pregnancy discrimination cases. We particularly were interested in the accessibility of these offices and their clarity in assisting plaintiffs in their challenges of employer actions perceived to be discriminatory. We hypothesized that states providing clearer directions to pregnancy discrimination plaintiffs regarding the filing of a complaint would have a larger number of state cases and a smaller number of federal cases. The reasoning follows our arguments previously, the greater the protections at the state level the larger the number of state cases and the less the state protections the larger the number of federal cases. To measure this we examined the websites of each state and categorized the accessibility of all offices to a potential plaintiff. We divided the websites into four categories, similar to our measurement of the state statutes. Category one includes those states without any web presence of any kind of EEO office; the only states in this category were the four states without an EEO office. Category two consists of those states in which there is no information regarding pregnancy discrimination or whose information actively discourages lawsuits. These states either clearly notes the conditions under which a person cannot sue "for example, New York# or who clearly narrows the legal options available for litigants. Sixteen states fell into this category. Category three is composed of the twenty-two states whose websites contain general information on pregnancy discrimination, simply state the antidiscrimination law, and provides neutral information on the procedure for filing discrimination challenges. The final category, four, provides specific information on pregnancy discrimination, has clearly accessible information on who can sue for employment discrimination and resources for challenging unfair treatment in the workforce. While we hypothesized that the nine states with the

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strongest EEO/FEP state websites would have the highest number of state pregnancy discrimination court cases, our hypothesis was not supported. However, the direction we hypothesized was demonstrated. The one statistically significant relationship "to the .01 level# was between the state protection of workers against pregnancy discrimination and the quality of EEO/FEP directions for litigation. The states with the strongest statutory protections had the clearest directions on the EEO/FEP websites.

Conclusions While a study of these relationships at the state level resulted in no findings of real significance, when the states were combined into their federal circuits and the test rerun there was one significant difference. The relationship between the number of state pregnancy discrimination cases decided and the degree of state statutory protections against pregnancy discriminations was a positive and statistically significant one "at the 0.01 level#. In addition, the significance of the relationship between strong statutory protections and a clear EEO/FEP presence "via website# was increased to a .005 level. Pearson Correlations—State Litigation Aggregated to Circuit
State Litigation State Litigation
Pearson Correlation Significance "2-tailed# Pearson Correlation Significance "2-tailed#

Federal Litigation

EEO/FEP Websites

EEO/FEP Existence

Statutory Protection

1 . -.170 .598 .470 .123 .425 .168 .591* .043

-.170 .598 1 . -.175 .586 .211 .511 -.316 .317

.470 .123 -.175 .586 1 . .467 .126 .879** .000

.425 .168 .211 .511 .467 .126 1 . .329 .296

.591* .043 -.316 .317 .879** .000 .329 .296 1 .

Federal Litigation

EEO/FEP Website
Pearson Correlation Significance "2-tailed# Pearson Correlation Significance "2-tailed#

EEO/FEP Existence

Statutory Protection
Pearson Correlation Significance "2-tailed#

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While we have not satisfactorily explained what has led to the extreme variation in the number of federal lawsuits emanating from specific states, we have discovered several factors. It appears that the stronger a state’s statutory protection against pregnancy discrimination the more likely the state is to have a stronger EEO/FEP office to facilitate citizen’s challenges under the law. States with stronger laws have more state litigation and citizens in states with weaker laws may rely more heavily on federal litigation.3 Future research into this question will need to follow more traditional judicial politics research and examine the judicial makeup and decision making of the individual circuits. Some research exists on the variation between appellate court circuits which may related to social, economic, and cultural influences on litigants "Harrington and Ward 1995#. But much of this research seems to be based on overall variances in litigation, not in specific types of litigation. Preliminary examination does seem to indicate that several federal district courts "e.g., Northern District of the State of Illinois# are more involved in pregnancy discrimination litigation than other circuits and districts. This fact alone might explain some of the variance. A secondary state-based indicator might be the relative presence or absence of interest groups lobbying for the rights of working women. Regardless, it is clear that there is much to discover about the larger national patterns of litigation and the factors that contribute to the resolution and elimination of employment discrimination and in particular the discrimination against pregnant women.

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WORKS CITED Abraham, H. J. 1998. The Judicial Process, Seventh Edition. Oxford University Press. Becker, Mary E. “Prince Charming: Abstract Equality” The Supreme Court Review. Chicago: The University of Chicago Press, 1987: 201-247. Carp, Robert A. and C. K. Rowland. Policymaking and Politics in the Federal District Courts, Knoxville: University of Tennessee Press, 1983. Cicora, Eva A. “Pregnancy and Equality: A Precarious Alliance” 60 Southern Califonia Law Review July: 1345-1374. Deardorff, Michelle D. “Beyond Pregnancy!Males, Infertility, Birth Control, and Breastfeeding: Judicial Determination of Statutory Intent,” presented at the American Political Science Association Annual Meeting, Chicago, Illinois August 31-September 3, 2004. Davis, Sue and Donald Songer. 1988-1989. “The Changing Role of the United States Courts of Appeals: The Flow of Litigation Revisited.” 13 Justice System Journal 3: 323-340. Ellis, Deborah A. “Reexamining Gender Scrutiny: A Symposium Discussion: Protecting ‘Pregnant Persons’: Women’s Equality and Reproductive Freedom,” 6 Seton Hall Constitutional Law Journal, 1996: 967. Equal Employment Opportunity Commission "EEOC#. Pregnancy Discrimination Charges EEOC & FEPAs Combined: FY 1992 - FY 2003. 2004. http://www.eeoc.gov/stats/pregnanc.html "visited June 14, 2004#. Equal Employment Opportunity Commission "EEOC#, “E.E.O.C. 35th Anniversary!Milestones: 1972.” http://www.eeoc.gov/aboutee0c/35th/milestones/1972.html. Viewed February 11, 2004. Epstein, Lee. editor. 1995. Contemplating Courts. Washington, D.C.: Congressional Quarterly Press, introduction. Gardin, S. K. and G. A. Richwald. “Pregnancy and Employment Leave: Legal Precedents and Future Policy,” 7 Journal of Public Health Policy 1986, no. 4: 458. Goldman, Sheldon. “Voting Behavior on the United States Courts of Appeals, Revisited” 69 American Political Science Review, 1975: 491-506. Harrington, Christine B. and Daniel. S. Ward. “Patterns of Appellate Litigation, 1945-1990.” 1995. Contemplating Courts. Washington, D.C.: Congressional Quarterly Press: 206-226. Howard, J. Woodford, Jr. “Litigation Flow in Three United States Courts of Appeals,” 8 Law and Society Review, 1973: 33-53. Hughes, John C. The Federal Courts, Politics, and The Rule of Law. New York; Harper Collins, 1995. Judicial Conference of the United States 2002a. “U.S. Courts of Appeals!Appeals Commenced, Terminated, and Pending, by Circuit, During the 12-Month Period Ending March 31, 2002.” Table B-1. http://www.us.courts.gov/caseload2002/contents.html last accessed June 21, 2004. Kenney, Sally J. ”Pregnancy Discrimination: Toward Substantive Equality” 10 Wisconsin Women’s Law Journal 1995: 351-. Lloyd, Randall D. “Separating Partisanship from Party in Judicial Research: Reapportionment in the U.S. District Courts” 89 The American Political Science Review, No. 2, June 1995: 413-420.

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MacKinnon, Catherine. Sexual Harassment of Working Women: A Case of Sexual Discrimination. New Have: Yale University Press, 1979. MacKinnon, Catherine. Feminism Unmodified: Discourses on Life and Law. Cambridge: Harvard University Press, 1986. Olson, Susan M. 1992. “Studying Federal District Courts through Published Cases: A Research Note.” 15 Justice System Journal 782-800. Ringquist, Evan J. and Craig E. Emmert. “Judicial Policymaking in Published and Unpublished Decisions: The Case of Environmental Civil Litigation,” 52 Political Research Quarterly no.1, March 1999: 7-37. Scales, Ann. “The Emergence of Feminist Jurisprudence: An Essay” 95 Yale Law Journal 1986: 1371. Siegelman, Peter and John J. Donohue III. “Studying the Iceberg From Its Tip: A Comparison of Published and Unpublished Employment Discrimination Cases” 24 Law and Society Review 1990: 1133-1170. Songer, Donald R. “Criteria for Publication of Opinions in the U.S. Courts of Appeals: Formal Rules versus Empirical Appeals” 73 Judicature 1990: 307-313. Songer, Donald R. “Nonpublication in the United States District Courts: Official Criteria versus Inferences from Appellate Review” 50 Journal of Politics 1988: 206-219. Stidham, Ronald and Robert A. Carp. “Indian Rights and Law Before the Federal District Courts” 32 The Social Science Journal no. 1, 1995: 87-100. Vogel, Lise. “Debating Difference: Feminism, Pregnancy, and the Workplace” 16 Feminist Studies, no 1, Spring 1990: 9-32. Williams, Joan. “Do Women Need Special Treatment? Do Feminists Need Equality? 9 Journal of Contemporary Legal Issues 1998: 279. Williams, Wendy W. “Equality’s Riddle: Pregnancy and the Equal Treatment/Special Treatment Debate” 13 Review of Law and Social Change 1984-1985: 325-380.

Beyond Pregnancy!Deardorff and Green!19

CASES CITED California Federal Savings and Loan v. Guerra 107 S. Ct. 683 "1987#. Geduldig v. Aiello 94 S. Ct. 2485 "1974# General Electric Company v. Gilbert 97 S.Ct. 401 "1976# International Union, UAW v. Johnson Controls, Inc. 111 S.Ct. 1196 "1991# Newport News Shipbuilding and Dry Dock Co. v. EEOC 103 St. 2622 "1983# Wimberly v. Labor and Industrial Relations Commission 107 S. Ct. 821 "1987#

STATUTES CITED Americans with Disabilities Act of 1990, 42 U.S.C. §2000e"k# Equal Opportunity Act of 1972, amending Title VII of the Civil Rights Act of 1964, 78 Stat. 253; 42 U.S.C. 2000"e#. Pregnancy Discrimination Act of 1978, amending the Civil Rights Act of 1964, Title VII 42 U.S.C. 2000 "e#(k)

ENDNOTES
1

This data set has been collected and analyzed by James A. Dahl, Dean of Tabor School of Business, Millikin University, Decatur, Illinois and Michelle D. Deardorff of Jackson State University, Jackson, Mississippi.
2

Pregnancy Discrimination Charges: FY 1992 – FY 2003 Equal Employment Opportunity Commission and State Fair Employment Practices Agencies Combined FY FY FY FY FY FY FY FY FY FY FY FY 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Charges Filed 3,385 3,577 4,170 4,191 3,743 3,977 4,219 4,166 4,160 4,287 4,714 4,649

3

This relationship at the state level is statistically significant when the states are aggregated into circuits. The relationship with the federal courts is only directionally indicated, it is not statistically significant.


								
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