Ending Gender Discrimination in the Workplace by Sarah Chon

Two recent Supreme Court decisions highlight some obstacles still impeding the goal of achieving of full gender equality in the workforce through the judicial system.  Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex in the workplace but in two recent cases, the Supreme Court narrowed the efficacy of Title VII as a remedial statute.  Congress has already taken action to overturn the first of the two cases but has not overturned the second.  Accordingly, significant barriers remain for female employees bringing Title VII discrimination cases.  Further, the cases establish a troubling precedent implying that pregnancy discrimination does not actually constitute sex discrimination.

In the first case, Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court held that Lilly Ledbetter could not bring her pay discrimination claim against Goodyear because more than 180 days had passed since the alleged discriminatory act.[1] In 2009, Congress overturned the Ledbetter decision by amending Title VII to say that an unlawful employment practice occurs each time an individual is affected by the application of a discriminatory compensation decision.[2] The second case, AT&T v. Hulteen, involved a group of female employees at AT&T who took pregnancy leaves prior to the enactment of the Pregnancy Discrimination Act in 1978 (“PDA”), receiving fewer service credits for their pregnancy leaves than other employees did for other temporary disability leaves.[3] AT&T changed this system after the enactment of the PDA but continued to apply the old discriminatory system when calculating the pension benefits of the plaintiffs.[4] In May of 2009, the Supreme Court ruled that AT&T’s discriminatory system did not violate Title VII or the PDA.[5]

The Court’s ruling reflected the crabbed reading of Title VII that Justice Ginsburg criticized so forcefully in her dissents in both Ledbetter and HulteenHulteen expanded the “bona fide seniority system” exception in section 703(h) of Title VII, which provides an exception for employers who apply a different standard of employment benefits as long as “such differences are not the result of an intention to discriminate because of . . . sex.”[6] The Court’s reading of Title VII essentially ignored this limitation on the bona fide seniority system exception and also ignored another section of Title VII that explicitly limited the applicability of the bona fide seniority system exception to fringe benefit programs that discriminated on the basis of sex, as AT&T’s pension benefit plan did.  The Court’s decision also eviscerated the primary purpose of the PDA to “protect women . . . against repetition or continuation of pregnancy-based disadvantageous treatment,”[7] resulting in a perpetuation of the very discrimination that the PDA was meant to end.   In so doing, the majority in Hulteen effectively established a new and troubling principle that past discrimination can be maintained even after Congress has acted.[8] The Court’s decision sanctions AT&T’s discriminatory practice of giving the plaintiffs lower pensions throughout their retirements and allows AT&T to continue breaking the law with impunity.

The Court’s reading of Title VII and the PDA also implies that the PDA did not define sex discrimination as including pregnancy discrimination but only added a prohibition against pregnancy discrimination to Title VII.[9] Accordingly, the Court’s interpretation indicates that pregnancy discrimination is only a violation of Title VII but does not fall under any other laws that prohibit discrimination on the basis of sex, including the Constitution.[10]

As Justice Ginsburg noted in her biting condemnation of the Court’s decision in Ledbetter, “Title VII was meant to govern real-world employment practices, and that world is what the court today ignores.”[11] The fact that thousands of women will receive lower pension benefits than their male counterparts as a consequence of getting pregnant decades ago is a serious and timely problem.  The women who were of childbearing years in the 1970s will soon reach retirement age and start receiving their diminished pension benefits.

On a larger scale, Hulteen represents yet another setback for women on their road to equality in the workplace.  The Court’s reasoning considerably expanded the breadth of the bona fide seniority system exception in Title VII at the expense of severely limiting Title VII’s efficacy as a vehicle for challenging discriminatory practices, both past and present.  As the Court previously acknowledged, “[t]he primary purpose[s] of Title VII was to assure equality of employment opportunities and to eliminate . . . discriminatory practices and devices,”[12] and “to make persons whole for injuries suffered on account of unlawful employment discrimination.”[13] In ruling against Noreen Hulteen and the other plaintiffs, the Court has not only injured them but has departed widely from Title VII’s acknowledged remedial purpose.  If Title VII is to be the redress to discrimination against women in the workplace as Congress intended, then Congress needs to take action to open the door that the Supreme Court erroneously closed.

Congress should act to overturn the decision in Hulteen, not only to correct the potentially devastating ramifications of the decision on working women nearing retirement age now, but also to reverse the Court’s considerable deviation from Congress’s intent in passing Title VII and the Court’s parsimonious view of pregnancy discrimination as being a phenomenon entirely separate from sex discrimination.  Every such decision by the Supreme Court—or, indeed, any other court— that serves to maintain pregnancy and sex discrimination in the workplace also serves to continue the relegation of women to the status of second-class citizens in the workforce.[14] This sort of discrimination “[serves] as a constant reminder to every woman of society’s judgment that she does not really belong in the labor force, but rather at home bearing and raising children.”[15]

[1] 550 U.S. 618.

[2] Pub. L. 111-2, codified in 42 U.S.C. § 2000e-5(e).

[3] See 129 S.Ct. 1962, 1967 (2009).

[4] See id.

[5] See id. at 1970.

[6] 42 U.S.C. § 2000e-2(h).

[7] AT&T v. Hulteen, 129 S.Ct. 1962, 1975 (2009) (Ginsburg, J., dissenting).

[8] See Charlotte Fishman, AT&T v. Hulteen: A Bad Decision That Did Not Have to Be, Today’s Workplace, May 21, 2009, http://www.todaysworkplace.org/2009/05/21/att-v-hulteen-a-bad-decision-that-did-not-have-to-be/.

[9] See Marcia McCormick, Thoughts on AT&T v. Hulteen, Workplace Prof Blog, May 20, 2009, http://lawprofessors.typepad.com/laborprof_blog/2009/05/thoughts-on-att-v-hulteen.html.

[10] See id.

[11] Robert Barnes, Over Ginsburg’s Dissent, Court Limits Bias Suits, Washington Post, May 30, 2007, available at http://www.washingtonpost.com/wp-dyn/content/article/2007/05/29/AR2007052900740.html (quoting Justice Ginsburg’s words from the bench).

[12] Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324, 348 (1977) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973)).

[13] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 661 (2007) (Ginsburg, J., dissenting) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)).

[14] See Joanna Grossman, AT&T v. Hulteen: The Supreme Court Deals a Blow to Once-Pregnant Retirees, Findlaw’s Writ, May 26, 2009, http://writ.news.findlaw.com/grossman/20090526.html; see also Joanna Grossman, The Thirtieth Anniversary of the Pregnancy Discrimination Act: Cause for Celebration, but also Reflection on the Progress Yet to be Made, Findlaw’s Writ, Oct. 28, 2008, http://writ.news.findlaw.com/grossman/20081028.html.

[15] Katharine T. Bartlett, Pregnancy and the Constitution: The Uniqueness Trap, 62 Cal. L. Rev. 1532, 1535 (1974).

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1 Comment

  1. Timothy DeMeza May 30, 2012 at 8:03 pm

    I was wondering if anyone knew how to contact Sara Chon. I read another article she helped prepare Florida v Powell.

    I had a question about the case.

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