Commentary by Deborah Hellman: On History Repeating Itself

My colleague Deborah Hellmandhellman had intriguing insights on yesterday’s Supreme Court decision in AT&T v. Hulteen and I wanted to pass them along.  Here is her reaction to the case:

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.

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6 Responses

  1. JP says:

    In dissent, Justice Ginsburg argues that … the PDA … 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).

    But of course Congress doesn’t overrule Supreme Court decisions. The PDA amended Title VII, not a decision interpreting it.

    What ought to matter is not what AT&T intended, but what it did.

    Given the use of “ought,” I’m assuming this is an argument that Congress should change the law. Title VII prohibits only intentional discrimination (setting aside disparate impact cases). I’m having a hard time imagining a workable proposal that would prohibit all disparate treatment in employment regardless of motive.

    Also, who gets to decide what “the best understanding of the antidiscrimination norm embodied in Title VII” is?

  2. DevinB says:

    I think your ascriptions of intent are tragically misguided, and the final remarks do a disservice to an otherwise interesting perspective. The legal issues at stake were not “Women’s” issues. The legal issue was retroactively enforcing a labour law.
    As you mentioned, the policies of AT&T were legal both before and after the new PDA and after it (because they changed their policies to be in line). This is what companies should do, because adhering generously to the letter of the law is what the laws are there for. Unless the Act explicitly prescribed remuneration for events occurring before its enactment, then there is no onus on the company to reevaluate past actions.

    My final note is going back to my very first note. When you characterize the company as disrespecting women, it makes the arguments seem frivolous. Companies as a rule, especially large ones, create policy, pension and benefit packages as a way to entice people to work there. They are attempting to maximize attractiveness and minimize cost. The implication that there was a decision made, at any level, that was specifically decided against women is very unlikely. In this case, there was no reason to change the policies regarding those ‘past pregnancies’, so why would they? They originally obeyed one *law* which was (as it turns out) discriminatory), and now they are obeying a different one.

    If the laws are unfair, change the laws. We cannot fault these companies for obeying the laws in the first place.

  3. Deborah Hellman says:

    Thanks for the thoughtful comments. First to JP: When the Court interprets a statute and then Congress responds, I think we can equally well describe that action (without stepping on the Court’s role in pronoucing what the law is) by saying either that Congress amendmed the statute or that that it corrected the Court’s interpretation of it. What Congress is saying is “that’s not what we meant, this is.”
    Second, your worries about rejecting intention require a more lengthy answer that I can provide here. You are surely right that current law makes intention relevant so what I am arguing is that this is a mistake. If you are interested in the longer version, check out my book (When is Discrimination Wrong, Harvard Univ. Press, 2008). Chapter 6 is called “It’s not the thought that counts” and argues against the moral relevance of intention to wrongful discrimination. Would love to hear what you think.
    To DevinB: Your view is surely the one that is shared by the majority of the court (including Stevens I might add) who also sees this purely as an issue of retroactivity. I think there is something different here. If Gilbert has come to be seen as a mistake rather than simply a decision that Congress responded to by changing the law, then sticking with the repurcussions of this repudiated vision is different from the situation in which a company simply follow one rule of law and then a later one. This is a difficult issue. I think Ginsburg is groping toward this sort of explanation but it isn’t fully defended (nor does my post do any better). I think articulating the distinction here requires more careful thinking. Thanks for pressing this point.

  4. Jack Krevins says:

    I fail to see the analogy to Parents Involved. Segregation was unconstitutional prior to the adoption of both of the plans there. The failure to remedy a constitutional violation is itself a constitutional violation. The logic of Parents Involved was that the voluntary plan went too far in attempting to remedy a prior constitutional violation. I disagree, but that logic is unrelated to statutory construction. A statutory modification is not a constitutional amendment.

  5. Mark S says:

    Seattle, WA never engaged in de-jure segregation, so your reference to Parents Involved doesn’t do the work you wish it to.

    Also, the question was not really about AT&T’s current pension policy; it was an attempt to revisit AT&T’s past policy of how workers would accumulate pension credits for time/pay. Basically, women who took pregnancy-related leave (back in the day) did not accumulate as many pension credits in the years of their leaves. So when you write that AT&T is “not counting the time off for pregnancy now, when the women retire” you misstate the problem. It was long ago that AT&T “didn’t count” the leave time. Today AT&T just looks at retirees’ pension-credit balances, which correctly reflect the policies lawfully* in force in the past. AT&T cannot lawfully add credits to woman-retirees’ accounts now because that would violate pension plan rules and predjudice other retirees’ interests in the shared funds which pay the pensions they live on.

    Per General Electric v. Gilbert.

  6. JP says:


    Thank you for responding. I don’t think of Congress as a singular institution through time. That is, the Congress that passed the PDA in 1978 should refer to the Congress that passed Title VII in 1964 as “they,” not “we.” Even within a single election cycle, priorities and coalitions may shift. Once Congress (with, usually, the President) enacts a law, it has a substantial degree of finality. A future Congress may change the law, but it can’t reach back and change something a previous Congress did.

    Alas, neither my public library nor the local law school library carry your book. Maybe I’ll have to figure out how ILL works.

    Maybe my dismissal of an antidiscrimination law without an intent requirement was too hasty. As a practitioner, I’m continuously confronted with the absurdity that results from trying to “prove” an employer’s motivation. The various types of circumstantial evidence used, the burden-shifting frameworks, and the ultimate prospect of how a jury decides whether or not there was intent are all extremely problematic.

    I suppose the idea would be to make Title VII look more like the Equal Pay Act. I see two potential problems. First, every employment decision (hiring, firing, raises, promotions, demotions) will have to be conscious of every protected category. Currently, employers try very hard–when possible–not to know their employees’ legally protected status. I’m not sure the result will be good if this is completely reversed. Second, the courts will have to adjudicate every employment decision to determine what is a legitimate factor. Courts really will become super-personnel departments, which they have strongly resisted under Title VII. I am also skeptical that the benefits of completely eliminating subjective factors from decisionmaking will outweigh the costs.