Supreme Court: Pregnancy discrimination A-OK!

Today our nation’s highest court ruled in AT&T v. Hulteen that women who took maternity leave and were discriminated against by AT&T are shit out of luck.

Before the Pregnancy Discrimination Act was passed, when women took leave from their AT&T jobs to have a baby, those days did not count toward their pensions — even though other types of leave, such as temporary disability, were not removed from the pension equation. So when the women went to retire, they had lower pensions than other employees who had worked there the same number of years, even those who had taken leave for other reasons.

AT&T lawyers said their pension plan was legal when the women took pregnancy leave, so they shouldn’t have to recalculate their retirement benefits now. Congress did not make the Pregnancy Discrimination Act retroactive, they said, so the women should not get any extra money.

A majority of the justices agreed. “A seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA,” wrote Justice David Souter, who will retire next month.

Basically seven members of the Supreme Court are saying, “You were discriminated against? You’re about to retire with less money because of it? Tough.”

Justices Ruth Bader Ginsburg and Stephen Breyer dissented. By making it illegal to discriminate against women on pregnancy leave, “Congress intended no continuing reduction of women’s compensation, pension benefits included, attributable to their placement on pregnancy leave,” said Ginsburg, the court’s only woman.

Even if the Pregnancy Discrimination Act cannot be applied retroactively, lawyers for the women argue that

the decision below should still stand based on Lorance v. AT&T Technologies, in which the Court held that if a seniority system is found to be facially discriminatory, it “‘can be challenged at any time,’” and the Civil Rights Act of 1991, which specifically provides for challenges to an intentionally discriminatory seniority system “when a person aggrieved is injured by the application of the seniority system.”

Given that women tend to make less money during their working years and then live longer than men, they already struggle financially during retirement. And this ruling isn’t going to help. According to the National Women’s Law Center, which filed an amicus brief (PDF) in the case,

The most recent population surveys show that the median pension benefit for women over 65 is $8,110, compared to a $12,505 median for men in the same age range.

Much like the Court’s awful ruling in Ledbetter, Congress could fix this with legislation.

The court’s decision could affect thousands of women who took pregnancy leaves decades ago and now are headed toward retirement, said Christine L. Owens, executive director of the National Employment Law Project. Now, the only way women who took pregnancy leave before 1979 can make their leave time count is through the good graces of their company or through legislation by Congress, she said.

Since I’ve never been too optimistic about the “good graces” of companies, I think it’s time to push Congress to remedy this.

Scott Lemieux has more on how this relates to the diversity of the Court.

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66 Comments

  1. Zailyn
    Posted May 19, 2009 at 11:00 am | Permalink

    Agreed completely. I really have to wonder how much of the rejection of the notion of pregnancy as a disability comes from latent ableism.

  2. voluptuouspanic
    Posted May 19, 2009 at 12:10 pm | Permalink

    I think this goes to the heart of the idea that corporations (and society) treat the default, “normal” body as one male sex-typed. And that’s a huge problem.
    And I don’t think it’s an issue of punishing a company of doing something that wasn’t illegal. The law is relative. It’s unfortunate that this piece is missing.

  3. Jen R
    Posted May 19, 2009 at 12:45 pm | Permalink

    I’m uncomfortable with the idea of classifying pregnancy as a disability. To me, it smacks of pathologizing the female.
    Pregnancy is not inherently a disability, although there may be disabling medical issues associated with it. It is a familial obligation, like childrearing or caring for sick family members. That’s why I prefer for it to be classified as “family leave” rather than disability.

  4. Jen R
    Posted May 19, 2009 at 12:49 pm | Permalink

    I don’t think it’s “punishing the business community” to make them make reasonable accomodations for the needs of their workforce.
    The business community has unfairly benefitted (at the expense of women) from not having to make those accomodations. Taking away an unfair benefit is not a punishment.

  5. Jen R
    Posted May 19, 2009 at 1:00 pm | Permalink

    That’s a very good point. In the particular case of pregnancy, though, I fret about defining it as a disability because pregnancy has already been pathologized to an unhealthy extent, and I fear that calling it a disability would make that problem worse. Maybe you’re right, and it would go the other way — toward a more rational view of disability — but I don’t see it happening.

  6. Qwerty
    Posted May 19, 2009 at 1:21 pm | Permalink

    If Generations X and Y have (somewhat) managed to pay for the massive baby-boomer gen, I think the future gen will manage.

  7. katie80andstuff
    Posted May 19, 2009 at 2:44 pm | Permalink

    Are you serious? This statement “Maybe there should be some cost to having children, or deciding to stay home with children” literally stopped my brain. I don’t have kids and am not planning on it– partly due to the MASSIVE expense incurred by having and raising them. Not to mention, there are also serious disadvantages (real and “perceived”, whatever that means) to having children, just as there are numerous advantages to not having kids. Come on.

  8. Naught
    Posted May 19, 2009 at 2:56 pm | Permalink

    Am I missing something? It looks like the court said that it is NOW illegal, but that the law cannot be applied to things that happened before it was passed. Ex post facto laws are a bad, bad thing and are unconstitutional for a reason.

  9. katyarizhaya
    Posted May 19, 2009 at 3:09 pm | Permalink

    I’m not sure if anyone else pointed this out below me (I’ve only read up to this point) but the reason it’s a women’s issue is that, by any reasonable analysis, the lack of benefits is ~because~ they’re women. As the post points out, maternity leave is the only type of leave that’s excluded from seniority accrual. And oh, hey, look! It’s also the only type of leave that almost exclusively applies to women! Coincidence? Please.

  10. nestra
    Posted May 19, 2009 at 3:37 pm | Permalink

    I have children, which gives me the opportunity to live a life and have experiences that would be impossible without them. They have added so much value to my family, despite any inconvenience.
    People who do not have children will not have those benefits. Should they demand some sort of financial compensation for that? I have been richly rewarded for my decision to have children. Very richly rewarded. Why should I also get the financial and convenience rewards life gives to those who do not have children?
    If you don’t want children, or don’t perceive that the benefits outweigh the costs and inconvenience, great. If someone wants to have children, it should be because they do think that the result is worth the cost.
    Grownups sometimes have to make decisions about what they want more… an inflexible job or guaranteed evenings with the family, children or an uninterrupted career path, an education or a lower initial debt load. If a decision isn’t worth the trouble it causes, maybe people need to look more at their motivations for making that decision instead of expecting the world to clear their path and absolve them of any responsibility.

  11. katyarizhaya
    Posted May 19, 2009 at 3:46 pm | Permalink

    Perhaps this is what you’re missing? It’s what the women’s lawyers argued:
    “the decision below should still stand based on Lorance v. AT&T Technologies, in which the Court held that if a seniority system is found to be facially discriminatory, it “‘can be challenged at any time,’” and the Civil Rights Act of 1991, which specifically provides for challenges to an intentionally discriminatory seniority system “when a person aggrieved is injured by the application of the seniority system.”

  12. Naught
    Posted May 19, 2009 at 7:28 pm | Permalink

    I read that, but it’s basically saying the same thing. It was not, in a legal sense, discriminatory until AFTER the PDA was passed – which is exactly what the court ruled. The PDA is what made pregnancy discrimination illegal.

  13. Keliz
    Posted May 19, 2009 at 7:30 pm | Permalink

    This. Thank you for articulating something that was making my head spin.
    I get the arguments that Alice and Qwerty are making from the traditional capitalist perspective, but the fact that reproductive and childrearing work has been naturalized to such an extent that we no longer view it as “real” work is part of traditional capitalisms deeply sexist heritage.
    Think about it. How is having a child and caring for it while young less of a valuable act for the human population than procuring and selling food, clothing, or shelter (or the many other things we sell now…like sparkly candy bars)? Obviously not all women have children, nor should that be the foundation of all womens’ worth or a requirement of their sex. However the fact that we consider that “taking time off” from real work shows a blatant undervaluation of the efford demanded and effects produced by such work.
    Ideally, I think reproductive or childrearing work should be valued on the market, and thus women (or men) could choose to do that for a couple of years without significantly damaging their career or job-worth. Of course, that would be a tricky change and would require a boatload of altered perspectives, not to mention a significantly less sexist world.
    Some of the people on here seem to think that deciding to have and raise a child is a choice akin to taking a two year vacation to Europe or something. Oh wait, that would probably be seen as more marketable use of time than having a child.
    Until we manage the kind of change that would be required for reproductive work to actually be valued accurately, pregnancy or family leave is a much needed band-aid to the rampant sexism.

  14. Keliz
    Posted May 19, 2009 at 7:37 pm | Permalink

    Clearly we had a different reading of this bit. Just because the pregnancy discrimination didn’t become illegal until after the PDA, does not mean that ignoring that change now in ranking seniority is not discriminatory. It isn’t about allowing women to take pregnancy leave anymore – those women have already had their children. It’s about a valuation system that is discriminating against women now.
    Or did I get this wrong? Can anyone else clarify?

  15. sbeath
    Posted May 20, 2009 at 1:06 am | Permalink

    I can see your point of view, and I can see how that point of view might be shared by the majority of the US, but it’ rooted in a misunderstanding of disability. Disability isn’t something inherently negative, or inherently wrong about a person–it’s a difference that society marks and doesn’t fully accommodate.
    I think this kind of reaction against disabling pregnancy is similar to previous statements by Friedan and others about not including lesbians in the movement–understandable from a PR perspective, but ultimately based in crumbling understandings of large social categorie.

  16. Naught
    Posted May 20, 2009 at 11:31 am | Permalink

    In other words, it doesn’t matter when they took the leave, it matters when they retire? I think that’s part of what the plaintiff’s lawyers were arguing, but it’s still very, very shaky grounds. Pension is part of what you get paid as you work, and their payment was legal until after the PDA.

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