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.