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.

Diversity matters in the Supreme Court

25 05 2009

There has been much speculation and writing about who Obama will appoint to the Supreme Court, and while there is no set day that the decision will be announced it may be as soon as tomorrow or some other time this week. In a recent C-SPAN interview, reporters asked Obama how he would respond to his wife, daughters and mother-in-law if he didn’t choose a woman. He said:

Actually I can’t tell you the number of women, including Michelle, who say, “Choose the person you think is going to be best.” I think in any given pick, my job is to just find somebody who I think is going to make a difference on the courts and look after the interest of the American people. And so, I don’t feel weighed down by having to choose a Supreme Court justice based on demographics. I certainly think that ultimately we want a Supreme Court that is reflective of the incredible variety of the American people.

As Dr. Violet Socks writes:

This is standard anti-feminist rhetoric. Talk about choosing “the best person” — as if in a nation of 300 million that would somehow preclude finding a woman to fill the job. Use non-feminist women as human shields to defend your stance. (”My wife says it’s okay!”)

8 out of the 9 Supreme Court Justices are males and it doesn’t take a genius to realize that this is not representative of the American population at all. The Supreme Court, like many other government institutions, is a boys club and this affects the decisions made that affect this country as a whole.

In the Judge Mario G. Olmos Memorial Lecture in 2002, appeals court judge Sonia Sotomayor said:

No one person, judge or nominee will speak in a female or people of color voice. I need not remind you that Justice Clarence Thomas represents a part but not the whole of African-American thought on many subjects. Yet, because I accept the proposition that, as Judge Resnik describes it, “to judge is an exercise of power” and because as, another former law school classmate, Professor Martha Minnow of Harvard Law School, states “there is no objective stance but only a series of perspectives – no neutrality, no escape from choice in judging,” I further accept that our experiences as women and people of color affect our decisions. The aspiration to impartiality is just that–it’s an aspiration because it denies the fact that we are by our experiences making different choices than others. Not all women or people of color, in all or some circumstances or indeed in any particular case or circumstance but enough people of color in enough cases, will make a difference in the process of judging.

Sotomayor is right that impartiality is an aspiration. Every body experiences the world different based on his/her social location: his/her gender identity, sexual orientation, race, class, physical ability, geographic location, educational background, etc. And the way we experience our lives colors the way we perceive and navigate the world. It clearly influences our perceptions of right and wrong. Is it a coincidence that Ruth Bader-Ginsburg, the only woman on the bench, was one of the two dissenting voices for the AT&T case?

She is also right that no one female or person of color can or will speak for their entire group, and being a woman does not automatically make you a feminist (case in point: Sarah Palin), just like how being a person of color does not automatically make you anti-racist. However, having a woman or a person of color nominated for Supreme Court Justice will make a difference:

Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

I also hope that by raising the question today of what difference having more Latinos and Latinas on the bench will make will start your own evaluation. For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach. For all of us, how do change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

Well said. It will be more meaningful for women or for people of color to have more powerful female or people of color role models. It may seem that one person may not be able to make such a profound difference, but collectively we all can. And even if one diverse voice is all we have to start with, we can build from there.