Commentary by Deborah Hellman: On History Repeating Itself
Yesterday, the Court decided AT&T v. Hulteen, rejecting the claims of women who took time off while pregnant for pension benefits calculated without deducting for pregnancy-related absences. The plaintiffs’ pregnancies occurred before the passage of the Pregnancy Discrimination Act (PDA) and thus their employer, AT&T, was not required to treat pregnancy-related leave in the same way as other health or disability leave. Treating pregnancy differently was lawful at the time the women took off from work under the Supreme Court’s decision in General Electric v. Gilbert. The question addressed yesterday by the Court in Hulteen is how to think about the lingering effect of the Gilbert decision for the pension benefits women are entitled to today. Justice Souter, writing for the Court, argues that because the practice of treating pregnancy differently was lawful when the company counted the time away from work, there is no violation of Title VII today. In dissent, Justice Ginsburg argues that Congress’s adoption of the PDA does not simply reflect a change in the law, but rather it corrects a serious error by the Court in understanding pregnancy-based differentiations. (The PDA amended the interpretation of Title VII given by the Court in Gilbert, which had held that a distinction between pregnant persons and non-pregnant persons was not sex discrimination in violation of Title VII).
At its root, the case deals with how we ought to think about current actions that carry forward now-repudiated practices. If a city follows a neighborhood school assignment policy that yields significant racial segregation of students, should we see this as neutral and an attempt to redress it as race-based decision-making (Parents Involved v. Seattle School District)? Or should we treat the decision to try to undo the lingering effects of past as the expected course of action and the decision to do nothing (and accept dramatic racial segregation) as the one in need of justification?
When AT&T pays out penion benefits without correcting for the time deducted for pregnancy-related leave, its actions treats formerly pregnant persons differently from others. These “formerly pregnant persons” are, of course, women. AT&T admittedly does not intend to discriminate against women, nor does it intend to discriminate against pregnant persons (it changed its policy right after the PDA was adopted). What ought to matter is not what AT&T intended, but what it did. In not recognizing the length of service of its formerly pregnant employees, AT&T treats its women retirees differently from its men retirees in a way that violates the best understanding of the antidiscrimination norm embodied in Title VII. This is because the meaning of not counting the time off for pregnancy now, when the women retire, expresses disrepect for them as women.