AT&T v. Hulteen: The Ghost of Bad Supreme Court Rulings Past

What Women Really Think
May 19 2009 10:55 AM

AT&T v. Hulteen: The Ghost of Bad Supreme Court Rulings Past

Agreed, Dahlia, that Justice Ginsburg is carefully applying the law as she sees it in her dissent in AT&T v. Hulteen . Her problem is a bad old ruling that haunts this case and that all but one of her male colleagues refused to banish. In General Electric Co. v. Gilbert in 1976, the Supreme Court ruled that discrimination based on pregnancy is not discrimination based on sex, because some women (the nonpregnant ones) won't be discriminated against. By ignoring how "societal attitudes about prengancy and motherhood severely impeded women's employment opportunities," as Ginsburg puts it, Gilbert deeply frustrated women's rights lawyers at the time, notably among them one Ruth Bader Ginsburg. Congress thought Gilbert was bad law too, and overturned it by passing the Pregnancy Discrimination Act in 1978. That statute requires employers to give pregnant women the same benefits they give everyone else.

But the PDA didn't instruct employers to go back and fix previous discrimination, and so the pension benefits that the women who sued in Hulteen were denied more than three decades ago stayed on the books. Ginsburg's theory is that Congress did protect women "against repetition or continuation of pregnancy-based disadvantageous treatment." Thus the court should read the law to redress the continuing effect of AT&T's long-ago refusal to grant benefits, which continued to matter for these women employees. But seven members of the court took a narrower, time-bound view of the case. They ruled against the women who sued, much as a majority of the court in 2007 ruled against Lilly Ledbetter , because they refused to see the smaller paycheck she got for years, as compared with her male peers, as a pattern of discrimination that continued to affect her long after the first time she received it. And so, Ginsburg writes, "Congress interred Gilbert more than 30 years ago, but the Court today allows that wrong decision still to hold sway." One of the most infuriating decisions of the 1970s, from a women's rights perspective, resurrected by Ginsburg's own court. Consolation, maybe: Congress could get it together to side with her, as it did in reversing her colleagues' Ledbetter decision this year.

Emily Bazelon is a staff writer for New York Times Magazine, the Truman Capote Fellow at Yale Law School, and one of the hosts of the Political Gabfest. She is the author of Sticks and Stones.

TODAY IN SLATE

Frame Game

Hard Knocks

I was hit by a teacher in an East Texas public school. It taught me nothing.

Republicans Like Scott Walker Are Building Campaigns Around Problems That Don’t Exist

Why Greenland’s “Dark Snow” Should Worry You

If You’re Outraged by the NFL, Follow This Satirical Blowhard on Twitter

The Best Way to Organize Your Fridge

The World

Iran and the U.S. Are Allies

They just aren’t ready to admit it yet.

Sports Nut

Giving Up on Goodell

How the NFL lost the trust of its most loyal reporters.

Chief Justice John Roberts Says $1,000 Can’t Buy Influence in Congress. Looks Like He’s Wrong.

How Steven Moffat Made the Best Doctor Who Episode in Years

  News & Politics
Politics
Sept. 16 2014 2:11 PM Spare the Rod What Charles Barkley gets wrong about corporal punishment and black culture.
  Business
Moneybox
Sept. 16 2014 2:35 PM Germany’s Nationwide Ban on Uber Lasted All of Two Weeks
  Life
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
  Arts
Brow Beat
Sept. 16 2014 1:27 PM The Veronica Mars Spinoff Is Just Amusing Enough to Keep Me Watching
  Technology
Future Tense
Sept. 16 2014 1:48 PM Why We Need a Federal Robotics Commission
  Health & Science
Science
Sept. 16 2014 1:39 PM The Case of the Missing Cerebellum How did a Chinese woman live 24 years missing part of her brain?
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.