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Pensions and Pregnancy

For Justice Ruth Bader Ginsburg, it must be a case of deja vu all over again, as Yogi Berra would say.

The Supreme Court, over her dissent Monday, upheld a provision of an AT&T Corp. pension program that had subtracted from the retirement plan’s calculation of seniority the time female workers took off to give birth. The court held in AT&T Corp. v. Hulteen that women who took leave before 1978 suffered no illegal discrimination because federal law did not equate pregnancy bias with sex discrimination in those days.

The justices, in a 7-2 vote, said the precedent back then was General Electric Co. v. Gilbert, a 1976 decision in which the high court stated that “an exclusion of pregnancy from a disability-benefits plan providing general coverage [was] not a gender-based discrimination at all.”

The Gilbert decision prompted Ginsburg — then a women’s rights attorney — to co-author a New York Times column urging Congress to amend Title VII of the 1964 Civil Rights Act and classify pregnancy discrimination as illegal gender bias. Congress agreed and enacted the 1978 Pregnancy Discrimination Act.

Now more than 30 years later, Ginsburg has returned to the fight, saying the current court has paid insufficent heed to the PDA.

“Congress put the court back on track in 1978 when it amended Title VII to repudiate Gilbert‘s holding and reasoning,” Ginsburg wrote on Monday, in a dissent joined by Justice Stephen G. Breyer. “Congress’ swift and strong repudiation of Gilbert, the court today holds, does not warrant any redress for the plaintiffs in this case.”