Tuesday, May 19, 2009

Two Wrongs Make A Right? Or One Woman On The Bench.

The Supreme Court has a majority of conservatives and catholics on the bench. What does that mean for women's rights? Guess.

You don't even have to guess, because we are getting enough evidence to tell. The Ledbetter wage discrimination case was one of those and the current "old maternity leave discrimination justifies current pensions discrimination" is another one:

In 1978, Congress passed the Pregnancy Discrimination Act, which required companies to offer pregnancy leave on equal terms with disability leave policies for men.

Prior to the new law, many employers forced women to take unpaid personal time off for pregnancy and birth. AT&T was among them.

Upon passage of the new law, AT&T changed its policy to provide paid-leave benefits to expectant employees.

At issue in AT&T v. Hulteen was whether the company could continue to rely on service records from the 1960s and 1970s that exclude credit for pregnancy time off to calculate pension benefits 30 or 40 years later as those female employees approach retirement.

Lawyers for the women argued that failing to credit the prior unpaid pregnancy leave in determining pension benefits would amount to a new and current form of gender discrimination in violation of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act.

"Impermissible retroactive effect"

Three former employees, Noreen Hulteen, Eleanora Collet, Elizabeth Snyder, and a current worker at AT&T, Linda Porter, first filed a discrimination charge with the Equal Employment Opportunity Commission. The women's union, Communication Workers of America, also joined the suit.

The EEOC found reasonable cause to believe that AT&T engaged in gender discrimination against the four women and other similarly situated female employees by refusing to grant full-service credit for pregnancy leaves taken before the 1978 Pregnancy Discrimination Act. The agency permitted the four women to file a federal lawsuit.

In the subsequent lawsuit, a federal judge ruled that the women were victims of gender discrimination. An appeals court panel reversed. That decision was reversed by the full Ninth US Circuit Court of Appeals, which agreed with the trial judge that AT&T had engaged in a current violation of the antidiscrimination law.

In appealing to the US Supreme Court, AT&T said its policy denying paid leave for childbirth was not an illegal form of gender discrimination in the 1960s and 1970s. The company said it was entitled to calculate pension benefits without having to retroactively apply the provisions of the Pregnancy Discrimination Act to what had been a legal policy followed in prior years.

In reversing the Ninth Circuit, the Supreme Court ruled that the appeals court had given impermissible retroactive effect to the PDA.

"Although adopting a service credit rule unfavorable to those out on pregnancy leave would violate Title VII today, a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA," Justice David Souter wrote in the majority opinion.

This is not a clear-cut case, but then few cases coming up for Supreme Court review could be called that. I can see the argument of the seven-member majority. But look at that last paragraph in the quote a little bit more carefully. What Souter is saying that it's OK to discriminate against women now if the current discrimination is based on something which took place before that particular discrimination was deemed against the law. A sort of grandfathering clause of discrimination!

In any case, what we have is a Republican Supreme Court, and it will be here for a generation or more. (Try the veal!) Roberts is a good example of what to expect:

In every major case since he became the nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.


This case also highlights the problem with having eight guys lounge about on the bench. None of them took pregnancy leave in the 1960s or 1970s, you know.