Few things underscore the Supreme Court’s lack of diversity
more than the recent ruling in a pregnancy discrimination case, AT&T Corp. v. Hulteen. The case
examined the pension payments for a number of former female employees of AT&T
who had taken maternity leave before passage of the Pregnancy Discrimination
Act, which clarified that under Title VII of the Civil Rights Act pregnancy
discrimination counted as sex discrimination. Now, AT&T is defining unpaid
maternity of these employees as personal leave from the company.  And the court has now ruled that such personal
leave doesn’t and shouldn’t count toward these women’s pensions.  Justice David Souter, who recently announced
his retirement from the court and has generally been thought of as favorable
toward women’s rights, wrote the opinion.

"This was not one of Justice Souter’s finest moments," said
Harper Jean Tobin, a staff attorney for the Herbert Semmel Federal Rights
Project of the National Senior Citizens Law Center and has written about the
case for the American Constitution Society’s blog. "Hulteen is a bad decision and has a significant impact on a large
number of workers. At the same time it’s a narrow decision." Tobin estimates
that the ruling only affects the roughly 15,000 women who worked at AT&T and
took maternity leave before the PDA was put into place.

But Marcia McCormick, a law professor at the Cumberland
School of Law and a contributor to Workplace Prof Blog, estimates this ruling
might have a more sinister impact on constitutional law. One of the most
disturbing things is that it seems to suggest that pregnancy discrimination is
not sex discrimination. That determination could have vast and reaching impacts
on women in this country.

"I am a little worried about what this is going to do about
constitutional analyses, even beyond potentially the employment context,"
McCormick said. "There are lots of situations in which the government interacts
with women in relation to their pregnancies or deciding not to become
pregnant."

The Hulteen ruling
reaffirms a long-since disputed view of the Court. After the Civil Rights Act became
law, many lower courts ruled that pregnancy discrimination was a form of sex
discrimination, using the reasoning that only women can become pregnant. But in
1976, the Supreme Court ruled
in the case of General Electric Co. v.
Gilbert that pregnancy discrimination was not sex discrimination. The
opinion, delivered by Justice William Rehnquist, described General Electric’s
plan "as representing a gender-free assignment of risks in accordance with
normal actuarial techniques. From this perspective the lone exclusion of
pregnancy is not a violation of Title VII insofar as all other disabilities are
mutually covered for both sexes."

It didn’t take long for the public outrage at this ruling to
cause Congress to pass the Pregnancy Discrimination Act and make it clear that
pregnancy discrimination is, in fact, illegal under the Civil Rights Act. The
law stated,
"women affected by pregnancy, childbirth, or related medical conditions shall
be treated the same for all employment-related purposes, including receipt of
benefits under fringe benefit programs, as other persons not so affected but
similar in their ability or inability to work." The PDA said that pregnancy was
no different from other forms of disability, and should be treated as such.

In terms of Hulteen,
the court was primarily concerned with "seniority systems" and that because AT&T
treating pregnancy leave as personal
leave was considered legal at the time, the company is not required to amend its
pension system now.  But, as Justice Ruth
Bader Ginsberg noted in her dissent, "[The plaintiffs] seek pension benefits,
now and in the future, equal to the benefits received by others employed for
the same length of time. The actionable conduct of which they complain is
AT&T’s denial of equal benefits to plaintiffs "in the post-PDA world."

Drexel University College of Law professor David Cohen
agreed with Ginsberg’s take on the case. "What we can say is that an employer
shouldn’t be able to do things now that continue to perpetuate discrimination
based on pregnancy, which is what AT&T is doing. They’re paying pension
based on differential calculations based on pregnancy-current action. It’s not
past action."

The underlying context in this case is that pregnancy
discrimination, like other forms of discrimination cases, are becoming harder
and harder to win. A recent study published in the Harvard Review of Law &
Policy found [PDF] that
"Compared to other plaintiffs, [those who allege employment discrimination]
manage fewer resolutions early in litigation, and so they have to proceed to
trial more often. They win a lower proportion of cases during pretrial and at
trial. Then, more of their successful cases undergo appeal. On appeal, they
have a harder time both in upholding their successes and in reversing adverse
outcomes." Plaintiffs who prevail in employment discrimination cases are becoming
ever scarcer.

The reasons for this are complicated, McCormick said. The
kind of discrimination that people experience today tends not to be overt. It’s
often a subtle form of discrimination in which  employers either don’t disclose their biases
or sometimes even aren’t aware of them. "Some people say that’s not what Title
VII was designed to reach," McCormick said. "I personally argue that people
just don’t agree on what discrimination is anymore. Maybe they never did."

Another high-profile case brought this into light, the Ledbetter v. Goodyear Tire Co. case of 2007.
Arguing that Lilly Ledbetter ought to
have filed her pay discrimination complaint within 180 days of her first
discriminatory paycheck, the court refused to grant Lilly Ledbetter back pay
for her years of sex discrimination. It was a cause around which women’s rights
advocates and women generally rallied, and which resulted in passage of the
Lilly Ledbetter Fair Pay Act earlier this year.  The Hulteen
ruling, because it affects a much smaller segment of the population, is
unlikely to evoke such a popular movement for Congress to reverse the decision,
although some feel that they should.

"Congress can step in and rectify this decision too by
passing a law that makes it clear that this kind of pension program based on
differential treatment of pregnancy is unlawful," Drexel University’s Cohen
said. "The administration can put regulations [in place] that are consistent
with statute that make it clear that certain things are unlawful based on sex
discrimination. Other branches of government and state courts and state
governments are going to have to step in because the Supreme Court is not a
sympathetic venue right now."

Cohen points to the fact that the Supreme Court has
consistently been ruling against those that bring forth discrimination cases,
much as in the Ledbetter ruling. It’s
not beside the point to note that the court is composed mostly of white men. In
fact, a recent study
of judges in sex discrimination cases determined that women were 10 percent
more likely to rule in favor of plaintiffs in such cases, regardless of
political ideology. When the Lilly Ledbetter Act was passed in the Senate,
every female senator voted in favor of the law, regardless of political party.

It would seem that President Obama’s indication that he’s in
favor of appointing a female justice to replace Souter is well justified if the
interests of victims of discrimination are to be better protected by the Supreme
Court. Still, there are some that are less optimistic. "The issue is that we
have five justices — Justice Scalia, Thomas, Alito, Kennedy, and Chief Justice
Roberts — who are relatively young for Supreme Court justices, they’re very
conservative, they’re not at all sympathetic to women," Cohen said. "Getting
newer, more progressive, younger justices would certainly be good long-term
because they’ll be on the court a lot longer, but it’s not until the five
conservative justices are changed that we’re going to see any improvement."