{"id":1634,"date":"2010-11-19T21:27:00","date_gmt":"2010-11-19T21:27:00","guid":{"rendered":"http:\/\/cornelljlpp.wordpress.com\/?p=67"},"modified":"2010-11-19T21:27:00","modified_gmt":"2010-11-19T21:27:00","slug":"ending-gender-discrimination-in-the-workplace-by-sarah-chon","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2010\/11\/19\/ending-gender-discrimination-in-the-workplace-by-sarah-chon\/","title":{"rendered":"Ending Gender Discrimination in the Workplace by Sarah Chon"},"content":{"rendered":"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.\n\nIn the first case, Ledbetter v. Goodyear Tire & Rubber Co<\/em>., 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]<\/a> In 2009, Congress overturned the Ledbetter<\/em> 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]<\/a> The second case, AT&T v. Hulteen<\/em>, involved a group of female employees at AT&T who took pregnancy leaves prior to the enactment of the Pregnancy Discrimination Act in 1978 (\u201cPDA\u201d), receiving fewer service credits for their pregnancy leaves than other employees did for other temporary disability leaves.[3]<\/a> 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]<\/a> In May of 2009, the Supreme Court ruled that AT&T\u2019s discriminatory system did not violate Title VII or the PDA.[5]<\/a>\n\nThe Court\u2019s ruling reflected the crabbed reading of Title VII that Justice Ginsburg criticized so forcefully in her dissents in both Ledbetter<\/em> and Hulteen<\/em>. Hulteen<\/em> expanded the \u201cbona fide seniority system\u201d 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 \u201csuch differences are not the result of an intention to discriminate because of . . . sex.\u201d[6]<\/a> The Court\u2019s 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\u2019s pension benefit plan did. The Court\u2019s decision also eviscerated the primary purpose of the PDA to \u201cprotect women . . . against repetition or continuation of pregnancy-based disadvantageous treatment,\u201d[7]<\/a> resulting in a perpetuation of the very discrimination that the PDA was meant to end. In so doing, the majority in Hulteen<\/em> effectively established a new and troubling principle that past discrimination can be maintained even after Congress has acted.[8]<\/a> The Court\u2019s decision sanctions AT&T\u2019s discriminatory practice of giving the plaintiffs lower pensions throughout their retirements and allows AT&T to continue breaking the law with impunity.\n\nThe Court\u2019s reading of Title VII and the PDA also implies that the PDA did not define sex discrimination as including<\/em> pregnancy discrimination but only added a prohibition against pregnancy discrimination to Title VII.[9]<\/a> Accordingly, the Court\u2019s 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]<\/a>\n\nAs Justice Ginsburg noted in her biting condemnation of the Court\u2019s decision in Ledbetter<\/em>, \u201cTitle VII was meant to govern real-world employment practices, and that world is what the court today ignores.\u201d[11]<\/a> 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.\n\nOn a larger scale, Hulteen<\/em> represents yet another setback for women on their road to equality in the workplace. The Court\u2019s reasoning considerably expanded the breadth of the bona fide seniority system exception in Title VII at the expense of severely limiting Title VII\u2019s efficacy as a vehicle for challenging discriminatory practices, both past and present. As the Court previously acknowledged, \u201c[t]he primary purpose[s] of Title VII was to assure equality of employment opportunities and to eliminate . . . discriminatory practices and devices,\u201d[12]<\/a> and \u201cto make persons whole for injuries suffered on account of unlawful employment discrimination.\u201d[13]<\/a> In ruling against Noreen Hulteen and the other plaintiffs, the Court has not only injured them but has departed widely from Title VII\u2019s 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.\n\nCongress should act to overturn the decision in Hulteen, <\/em>not only to correct the potentially devastating ramifications of the decision on working women nearing retirement age now, but also to reverse the Court\u2019s considerable deviation from Congress\u2019s intent in passing Title VII and the Court\u2019s parsimonious view of pregnancy discrimination as being a phenomenon entirely separate from sex discrimination. Every such decision by the Supreme Court\u2014or, indeed, any other court\u2014 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]<\/a> This sort of discrimination \u201c[serves] as a constant reminder to every woman of society\u2019s judgment that she does not really belong in the labor force, but rather at home bearing and raising children.\u201d[15]<\/a>\n
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\n\n[1]<\/a> 550 U.S. 618.\n\n<\/div>\n
\n\n[2]<\/a> Pub. L. 111-2, codified in 42 U.S.C. \u00a7 2000e-5(e).\n\n<\/div>\n
\n\n[3]<\/a> See<\/em> 129 S.Ct. 1962, 1967 (2009).\n\n<\/div>\n
\n\n[4]<\/a> See id.<\/em>\n\n<\/div>\n
\n\n[5]<\/a> See id.<\/em> at 1970.\n\n<\/div>\n
\n\n[6]<\/a> 42 U.S.C. \u00a7 2000e-2(h).\n\n<\/div>\n
\n\n[7]<\/a> AT&T v. Hulteen, 129 S.Ct. 1962, 1975 (2009) (Ginsburg, J., dissenting).\n\n<\/div>\n
\n\n[8]<\/a> See<\/em> Charlotte Fishman, AT&T v. Hulteen: A Bad Decision That Did Not Have to Be<\/em>, Today\u2019s Workplace, May 21, 2009, http:\/\/www.todaysworkplace.org\/2009\/05\/21\/att-v-hulteen-a-bad-decision-that-did-not-have-to-be\/.\n\n<\/div>\n
\n\n[9]<\/a> See<\/em> Marcia McCormick, Thoughts on AT&T v. Hulteen<\/em>, Workplace Prof Blog, May 20, 2009, http:\/\/lawprofessors.typepad.com\/laborprof_blog\/2009\/05\/thoughts-on-att-v-hulteen.html.\n\n<\/div>\n
\n\n[10]<\/a> See id.<\/em>\n\n<\/div>\n
\n\n[11]<\/a> Robert Barnes, Over Ginsburg\u2019s Dissent, Court Limits Bias Suits<\/em>, Washington Post, May 30, 2007, available at http:\/\/www.washingtonpost.com\/wp-dyn\/content\/article\/2007\/05\/29\/AR2007052900740.html (quoting Justice Ginsburg\u2019s words from the bench).\n\n<\/div>\n
\n\n[12]<\/a> Int\u2019l Bhd. of Teamsters v. U.S., 431 U.S. 324, 348 (1977) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973)).\n\n<\/div>\n
\n\n[13]<\/a> 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)).\n\n<\/div>\n
\n\n[14]<\/a> See<\/em> Joanna Grossman, AT&T v. Hulteen: The Supreme Court Deals a Blow to Once-Pregnant Retirees<\/em>, Findlaw\u2019s Writ, May 26, 2009, http:\/\/writ.news.findlaw.com\/grossman\/20090526.html; see also <\/em>Joanna Grossman, The Thirtieth Anniversary of the Pregnancy Discrimination Act: Cause for Celebration, but also Reflection on the Progress Yet to be Made<\/em>, Findlaw\u2019s Writ, Oct. 28, 2008, http:\/\/writ.news.findlaw.com\/grossman\/20081028.html.\n\n<\/div>\n
\n\n[15]<\/a> Katharine T. Bartlett, Pregnancy and the Constitution: The Uniqueness Trap<\/em>, 62 Cal. L. Rev. 1532, 1535 (1974).\n\n<\/div>\n<\/div>","protected":false},"excerpt":{"rendered":"

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