You were discriminated against and now have a smaller pension because of that? Gee, that sucks.

18 05 2009

The Supreme Court declared in 1976 in GE v. Gilbert that pregnancy discrimination by employers “was not a gender-based discrimination at all.”  Congress however overrode the Court’s interpretation and passed the Pregnancy Discrimination Act in 1979 which amended Title VII of the Civil Rights Act to outlaw pregnancy discrimination by employers.  The Pregnancy Discrimination Act stated that companies could not treat pregnancy leaves differently from other disability leaves, so maternity leaves are just disability leaves that are credited towards retirement.

But today, in a 7-2 decision the Court held that the Pregnancy Discrimination Act should not be applied retroactively and that AT&T is allowed to pay female employees lower pension benefits if they took maternity leave before the PDA was enacted.  Four AT&T female employees who had taken at least one maternity leave between 1968 and 1976 sued AT&T to get their leave time credited towards their pensions.  They lost between 67 and 261 days of uncredited leave.

AT&T lawyers argued that their pension plan was legal when the women took their pregnancy leaves so there’s no reason for them to recalculate their pensions now.  They also argued that the Pregnancy Discriminatory Act is not supposed to be retroactive and since the women took their leaves prior to its passage, they don’t deserve the extra money.  And seven Supreme Court Justices agreed with them.   This is a slap in the face for these four women, and countless other women who have been discriminated against because they were pregnant.

The women’s lawyers argued that even if the Pregnancy Discrimination Act is not retroactive, the preceding decision from Lorance v. AT&T Technologies should inform this current decision.  In that earlier case, the Court held that if a seniority system is discovered to be facially discriminatory, it “‘can be challenged at any time.'”  Furthermore, the Civil Rights Act of 1991 states that intentionally discriminatory seniority systems “when a person aggrieved is injured by the application of the seniority system” can be challenged.

The two dissenting opinions came from Justices Ruth Bader Ginsburg Stephen Breyer.  In her dissent Ginsburg notes:

Today’s case presents a question of time. As the Court comprehends the PDA, even after the effective date of the Act, lower pension benefits perpetually can be paid to women whose pregnancy leaves predated the PDA. As to those women, the Court reasons, the disadvantageous treatment remains as Gilbert declared it to be: “facially nondiscriminatory,” and without “any gender-based discriminatory effect.”

There is another way to read the PDA, one better attuned to Congress’ “unambiguou[s] … disapproval of both the holding and the reasoning” in Gilbert. On this reading, the Act calls for an immediate end to any pretense that classification on the basis of pregnancy can be “facially nondiscriminatory.” While the PDA does not reach back to redress discrimination women encountered before Congress overruled Gilbert, the Act instructs employers forthwith to cease and desist: From and after the PDA’s effective date, classifications treating pregnancy disadvantageously must be recognized, “for all employment-related purposes,” including pension payments, as discriminatory both on their face and in their impact. So comprehended, the PDA requires AT&T to pay Noreen Hulteen and others similarly situated pension benefits untainted by pregnancy-based discrimination.

So the question essentially is, “Does paying a woman lower pension benefits than she would otherwise be entitled to constitute ongoing discrimination if the decision was initially made in the past?

The Supreme Court’s ruling on this issue is upsetting and will impact the lives of many women who took pregnancy leaves years and years ago and are now approaching retirement.  However, it is important to keep in mind that The Supreme Court is an interpretative body – it interprets the laws that Congress has written.  So while today’s decision is infuriating, the responsibility should be on Congress to remedy the legislation so that pregnancy discrimination is prohibited.



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