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Thursday, May 21, 2009

Full Court Press: Ledbetter All Over Again

Lily Ledbetter became a national leader in the fight against sex discrimination after the Supreme Court overturned a jury’s finding that Goodyear had systematically paid her less than her male co-workers. Noreen Hulteen is the latest victim of a Supreme Court that fails to acknowledge the realities of discrimination against women in the workplace.

On Monday, May 18, the Supreme Court issued its decision in AT&T Corp. v. Hulteen. Noreen Hulteen was one of four named plaintiffs challenging AT&T's policy of calculating pension and retirement benefits in a way that penalized women who had taken pregnancy leave before the effective date of the Pregnancy Discrimination Act of 1978.

Ms. Hulteen and three other women sued after they discovered that their pensions were smaller than expected because AT&T failed to credit them for their time off during pregnancy as they would have credited any non-pregnancy disability leave.

The District Court found for the employees following Ninth Circuit precedent that held that an employer violated Title VII of the Civil Rights Act when it made the decision to treat pre-Pregnancy Discrimination Act pregnancy leave less favorably than all other temporary disability leave. A three judge panel on the Ninth Circuit overturned the decision, but upon rehearing the full panel of judges on the Ninth Circuit upheld the district court's decision finding that AT&T engaged in an act of discrimination each time it calculated benefits in a way that gave less credit for pregnancy leave than for any other temporary disability leave. Thus, in the view of the Ninth Circuit, the respondents were affected by the discriminatory pregnancy policy anew when they sought their retirement.

Unfortunately, a majority of the Supreme Court viewed the issue differently and Ms. Hulteen, like Ms. Ledbetter, is out of luck.

A majority of the Court followed a 1976 decision, General Elec. Co. v. Gilbert, that defied reality by holding that discrimination against pregnant women was not discrimination on the basis of sex. Therefore, the Court held, a disability plan that excluded pregnancy-related disabilities was not discrimination on the basis of sex under Title VII. Extending the reasoning of Gilbert, the Hulteen majority said that because the women took their leave at a time when it was legal to discriminate against pregnant women under Gilbert (before Congress enacted the Pregnancy Discrimination Act in response to Gilbert), AT&T's policy was legal even though it perpetuated a pension benefit calculation that would now unquestionably be unlawful discrimination.

Justice Ginsburg wrote a vigorous dissent, joined by Justice Bryer, from the majority's narrow reading of the Pregnancy Discrimination Act. According to the dissenters, while the Pregnancy Discrimination Act does not provide retroactive relief to women who were discriminated against before its enactment, it is properly understood to require an employer to "cease and desist" and thus not allow the legacy of the past discrimination to continue in their current operations.

In an interview, Justice Ginsburg told USA Today that the Hulteen oral arguments were "just, for me, Ledbetter repeated." Congress should view the decision the same way and take steps to make clear that the Supreme Court got it just as wrong in Hulteen as it did in Ledbetter.

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