Equal Pay for Women Denied, Again 

The New York Times

May 20, 2009

The Supreme Court keeps finding ways to deny women equal pay and benefits.

In 2007, it denied a woman’s claim for equal pay because it thought she waited too long to file it. On Monday, the court sided against female retirees who get smaller pensions than their male colleagues because they got pregnant and took maternity leaves before Congress got around to outlawing discrimination on that basis.

The case involved four retired employees of AT&T who took maternity leaves between 1968 and 1976 — before the law required employers to offer pregnancy leaves on equal terms with other disability conditions. The women were denied full credit for those leaves.

Both sides of the 7-to-2 ruling, including the exasperated dissent signed by Justices Ruth Bader Ginsburg and Stephen Breyer, agreed that the sort of pay discrimination at issue is now illegal. 

Nevertheless, a seven-member majority — including two generally reliable votes for equality, Justices John Paul Stevens and David Souter — found AT&T’s continued shortchanging of the four women to be permissible. It reasoned mainly that the pregnancy leaves predated the 1978 law, and since the law was not retroactive, the discrepancy in benefits was the product of “past, completed events that were entirely lawful at the time they occurred.” 

That may sound logical, but it is not just. Writing in dissent, Justice Ginsburg agreed that the 1978 Pregnancy Discrimination Act does not require redress for past discrimination. But, quite correctly, she saw AT&T’s ongoing denial of equal benefits not as past discriminatory behavior that started and ended decades ago, but as a current violation of the act. (In much the same way, Goodyear discriminated against Lilly Ledbetter by maintaining her unequal pay for years, not merely the first time the company underpaid her.)

“I am persuaded by the act’s text and legislative history,” wrote Justice Ginsburg, “that Congress intended no continuing reduction of women’s compensation, pension benefits included, attributable to their placement on pregnancy leave.”

Congress will have to write corrective legislation.

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