AT & T v. Hulteen (Prenancy Discrimination)

Is pregnancy a disability in the eyes of the law? And, if it is considered, for pension credit calculations, the equivalent of a disability, can one "add up" the days one was pregnant to one's retirement credits before the effective date of a law saying that discrimnation based on pregnancy was illegal?

Well, these are all weighty questions, and always, when dealing with weighty questions, I start with "light" (i.e., easy to understand) facts, so that we can see how the questions emerge. In my mind, there really is no complexity in life; there are just simple strands that have been woven tightly together and are sometimes difficult to unravel. If we can't explain it simply, it is because we haven't taken the time to learn how to do so.

Background Facts

This plaintiffs in this case were women who became pregnant between 1968-1976 and who worked for AT & T. Though this issue will sooner or later "fade away," because these women will get old, retire and die, it won't do so for about another 20 or 30 years; thus it is good to deal with it now. Here are a few facts.

AT & T, like all big corporations, has a retirement plan for its employees. It is called the "Net Credited Service" ("NCS") system. An employee's first day on the job becomes her NCS date. The earlier the date, the better for the employee, of course. The NCS date, however, is not a fixed entity. It can move forward in time in order to reflect any period of leave or absence for which less than "full service credit" is awarded. For example, if a person began to work at AT & T on Jan. 1, 2000 and took a year off to explore the world (i.e., uncredited leave) from Jan 1, 2003-Dec. 31, 2003, she would lose one year of NCS. Her new NCS date, for retirement calculation purposes, would be Jan. 1, 2001. The employee's final NCS date, thus, reflects the beginning date of less time away for which less than full service credit is given.

Before August 7, 1977 pregnancy leave was classified by AT & T as "personal" (i.e., non-credited) rather than "disability" leaves. This is important because for personal leaves employees received credit for only the first 30 days of leave. If they took longer than 30 days off, those subsequent days did not accrue seniority for any time beyond the 30 days. Thus, after 30 days of personal leave the employee's NCS date began to move closer to the present, day by day. Employees who were on paid disability leave, however, received full service credit for the period of their absence, and their NCS dates were not adjusted as a result of these leaves.

On August 7, 1977, AT & T extended the maximum pregnancy NCS credit to 30 days before delivery and six weeks after delivery, but still it wasn't as open-ended as disability leave. The company legally did this, because a 1976 Supreme Court decision held that pregnancy wasn't a covered disability under Title VII of the Civil Rights Act. Well, in response to the Court's 1976 decision, Congress passed the Pregnancy Discrimination Act of 1978 (Pub. L. No 95-555, 92 Stat. 2076) to include pregnancy as a covered condition under Title VII. Though the law went into effect immediately upon passage, companies were given until April 1979 to adjust their retirement and benefit systems in accordance with the law. Thus, in fact, the "effective date" of the law for corporations was April 29, 1979.

Thus, since April 29, 1979 pregnancy leave is considered the same as any (other?) disability. Full credit is give for pregant women for the time they take off, and the employee's NCS date is not moved forward. I hope you are beginning to see the legal issue that will emerge. After the effective date of the Act, how were the "old days" to be considered? AT & T did not retroactively award additional service credit and thus re-adjust the NCS dates of women who had taken maternity leave before 1979. The result is that a woman who took pregnancy leave after April 29, 1979 would get "full credit" for the leave, while her "sisters" who just happened to have gotten pregnant and took their leave before the enactment date of the law only got their 30 days or 30 days & six weeks, depending on their leave dates. Is this fair?

The Legal Issue

The legal situation could have been so much simpler, and much less costly, if the law, when passed in 1978, had included one line, indeed, only about four words on the question. All it would have had to say is "the law is retroactive to all pregnancies happening before the effective date of the Act," or "the law is not retroactive." But, it didn't. Thus, the legal machinery kicks into gear, and you literally have dozens of cases over the next 30 years arguing one way or the other about "Congressional intent." And, of course, you are going to have judges come up with two distinctly different approaches to the question, based on their reading of precedent and their personal inclinations. Some will feel that the discrimination is so wrong that laws are intended not just to mend acts of discrimination going forward but ought to mend the past, to the extent that this is easily done. Of course, you can't "unring a bell" once struck, but it is quite easy to ask a corporation, or demand that a corporation, recalculate NCS dates based on the retroactivity of a law, if indeed the court decides that the law ought to have retroactive effect.

On the other hand, many judges will argue that discrimination primarily has to do with life going forward from the time the law becomes effective. Though this leads to a "two-tier" approach, it isn't an eternal situation, it doesn't punish corporations for activity that was legal at the time (i.e., considering personal leave and disability leave differently and including pregnancy in the former), it is not required by the text of the statute and, therefore, ought not to be done. I could take loads of hours to study cases that come down one one side or the other, but this is the basic issue.

Conclusion

So, how will the Supreme Court decide? Without a doubt, they will dress the decision in the nicest holiday finery of legal terminology, citing cases, statutes, and possibly even Congressional debates, but they probably will decide, on a very close vote, that the law isn't retroactive. The women, therefore, will be scr...., so to speak. The only hope for reading the statute retroactively is if Justice Ginsburg, who has been a tireless crusader for women's rights throughout her lengthy legal career, will be able to convince four of the "guys" that this discrimination ought not to be practiced. I think she has no chance of convincing Roberts, Alito, Scalia, and Thomas. They just will look at her and feel nothing, even though Justice Scalia and she love opera. She won't have to try hard with Stevens, Souter or Breyer. It all comes down, in my judgment, to the sphingine Justice Kennedy. And he, I believe, will not side with the women...

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