Few things underscore the Supreme Court's lack of diversity more than the recent ruling in a pregnancy discrimination case, AT&T Corp. v. Hulteen. The case examined the pension payments for a number of former female employees of AT&T who had taken maternity leave before passage of the Pregnancy Discrimination Act, which clarified that under Title VII of the Civil Rights Act pregnancy discrimination counted as sex discrimination. Now, AT&T is defining unpaid maternity of these employees as personal leave from the company. And the court has now ruled that such personal leave doesn't and shouldn't count toward these women's pensions. Justice David Souter, who recently announced his retirement from the court and has generally been thought of as favorable toward women's rights, wrote the opinion.
"This was not one of Justice Souter's finest moments," said Harper Jean Tobin, a staff attorney for the Herbert Semmel Federal Rights Project of the National Senior Citizens Law Center and has written about the case for the American Constitution Society's blog. "Hulteen is a bad decision and has a significant impact on a large number of workers. At the same time it's a narrow decision." Tobin estimates that the ruling only affects the roughly 15,000 women who worked at AT&T and took maternity leave before the PDA was put into place.
But Marcia McCormick, a law professor at the Cumberland School of Law and a contributor to Workplace Prof Blog, estimates this ruling might have a more sinister impact on constitutional law. One of the most disturbing things is that it seems to suggest that pregnancy discrimination is not sex discrimination. That determination could have vast and reaching impacts on women in this country.
"I am a little worried about what this is going to do about constitutional analyses, even beyond potentially the employment context," McCormick said. "There are lots of situations in which the government interacts with women in relation to their pregnancies or deciding not to become pregnant."
The Hulteen ruling reaffirms a long-since disputed view of the Court. After the Civil Rights Act became law, many lower courts ruled that pregnancy discrimination was a form of sex discrimination, using the reasoning that only women can become pregnant. But in 1976, the Supreme Court ruled in the case of General Electric Co. v. Gilbert that pregnancy discrimination was not sex discrimination. The opinion, delivered by Justice William Rehnquist, described General Electric's plan "as representing a gender-free assignment of risks in accordance with normal actuarial techniques. From this perspective the lone exclusion of pregnancy is not a violation of Title VII insofar as all other disabilities are mutually covered for both sexes."
It didn't take long for the public outrage at this ruling to cause Congress to pass the Pregnancy Discrimination Act and make it clear that pregnancy discrimination is, in fact, illegal under the Civil Rights Act. The law stated, "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." The PDA said that pregnancy was no different from other forms of disability, and should be treated as such.
In terms of Hulteen, the court was primarily concerned with "seniority systems" and that because AT&T treating pregnancy leave as personal leave was considered legal at the time, the company is not required to amend its pension system now. But, as Justice Ruth Bader Ginsberg noted in her dissent, "[The plaintiffs] seek pension benefits, now and in the future, equal to the benefits received by others employed for the same length of time. The actionable conduct of which they complain is AT&T's denial of equal benefits to plaintiffs "in the post-PDA world."
Drexel University College of Law professor David Cohen agreed with Ginsberg's take on the case. "What we can say is that an employer shouldn't be able to do things now that continue to perpetuate discrimination based on pregnancy, which is what AT&T is doing. They're paying pension based on differential calculations based on pregnancy-current action. It's not past action."
The underlying context in this case is that pregnancy discrimination, like other forms of discrimination cases, are becoming harder and harder to win. A recent study published in the Harvard Review of Law & Policy found [PDF] that "Compared to other plaintiffs, [those who allege employment discrimination] manage fewer resolutions early in litigation, and so they have to proceed to trial more often. They win a lower proportion of cases during pretrial and at trial. Then, more of their successful cases undergo appeal. On appeal, they have a harder time both in upholding their successes and in reversing adverse outcomes." Plaintiffs who prevail in employment discrimination cases are becoming ever scarcer.
The reasons for this are complicated, McCormick said. The kind of discrimination that people experience today tends not to be overt. It's often a subtle form of discrimination in which employers either don't disclose their biases or sometimes even aren't aware of them. "Some people say that's not what Title VII was designed to reach," McCormick said. "I personally argue that people just don't agree on what discrimination is anymore. Maybe they never did."
Another high-profile case brought this into light, the Ledbetter v. Goodyear Tire Co. case of 2007. Arguing that Lilly Ledbetter ought to have filed her pay discrimination complaint within 180 days of her first discriminatory paycheck, the court refused to grant Lilly Ledbetter back pay for her years of sex discrimination. It was a cause around which women's rights advocates and women generally rallied, and which resulted in passage of the Lilly Ledbetter Fair Pay Act earlier this year. The Hulteen ruling, because it affects a much smaller segment of the population, is unlikely to evoke such a popular movement for Congress to reverse the decision, although some feel that they should.
"Congress can step in and rectify this decision too by passing a law that makes it clear that this kind of pension program based on differential treatment of pregnancy is unlawful," Drexel University's Cohen said. "The administration can put regulations [in place] that are consistent with statute that make it clear that certain things are unlawful based on sex discrimination. Other branches of government and state courts and state governments are going to have to step in because the Supreme Court is not a sympathetic venue right now."
Cohen points to the fact that the Supreme Court has consistently been ruling against those that bring forth discrimination cases, much as in the Ledbetter ruling. It's not beside the point to note that the court is composed mostly of white men. In fact, a recent study of judges in sex discrimination cases determined that women were 10 percent more likely to rule in favor of plaintiffs in such cases, regardless of political ideology. When the Lilly Ledbetter Act was passed in the Senate, every female senator voted in favor of the law, regardless of political party.
It would seem that President Obama's indication that he's in favor of appointing a female justice to replace Souter is well justified if the interests of victims of discrimination are to be better protected by the Supreme Court. Still, there are some that are less optimistic. "The issue is that we have five justices -- Justice Scalia, Thomas, Alito, Kennedy, and Chief Justice Roberts -- who are relatively young for Supreme Court justices, they're very conservative, they're not at all sympathetic to women," Cohen said. "Getting newer, more progressive, younger justices would certainly be good long-term because they'll be on the court a lot longer, but it's not until the five conservative justices are changed that we're going to see any improvement."
