Opinion Recap: AT&T v. Hulteen

Please note that Howe & Russell and the Stanford Supreme Court Litigation Clinic represented respondents, and Kevin Russell argued the case before the Supreme Court. Additional information on the case is available on SCOTUSwiki, here.

Thirty-odd years after Congress passed the Pregnancy Discrimination Act (PDA) to include differential treatment of pregnancy leave as sex-based discrimination, the Supreme Court on Monday issued its opinion in AT&T v. Hulteen, holding that AT&T is not required to include some pregnancy leaves when calculating pension benefits for its female employees.

The case involved four former and present AT&T employees who took maternity leaves before the PDA was passed and, thus, employers were still permitted to treat pregnancy leave differently from other sorts of medical leave.

Much of Justice Souter’s majority opinion, which was joined by the Chief Justice and Justices Stevens, Scalia, Kennedy and Alito, focuses on § 703(h) of Title VII, which provides protection and special treatment to seniority systems like the one used by AT&T. Under subsection h, benefit differentials within a bona fide seniority system are lawful unless they result from an intent to discriminate. Because differential treatment of pregnancy leave was not gender-based discrimination at all when these employees took their leaves, and AT&T therefore couldn’t have intended discrimination where it didn’t exist, AT&T’s plan is insulated from challenge under subsection h.

The only way, the Court explained, that Section 703(h) could be construed as not supporting AT&T would be to read the PDA as applying retroactively to “recharacterize” the acts as illegal when done. But the opinion dismisses that construction as “not a serious possibility,” reasoning that there was no clear intent on the part of Congress for the Act to have retroactive application.

After rejecting several of employees’ other arguments, including that the decision in the 1990s not to give post-PDA credit to pre-PDA pregnancy leave is facially discriminatory, the Court concludes that Congress intentionally protected bona fide seniority systems, like the one in place at AT&T, with their “predictable financial consequences, both for the employer who pays the bill and the employee who gets the benefit” under § 703(h).

Justice Ginsburg’s dissent, joined by Justice Breyer, remarks that she would not dissent if the Pregnancy Discrimination Act were merely “an ordinary instance of legislative revision” of the Court’s construction of a text. Instead, she forcefully contends, both the text of the PDA and its legislative history make clear both Congress’s view that the Court erred egregiously in GE v. Gilbert and its intention that there be no continuing reduction of women’s compensation as a result of pregnancy leave. AT&T’s conduct, which – contrary to the Court’s opinion – is facially discriminatory, is actionable because it denies equal benefits post-PDA. She chronicles the legislative and judicial history of gender-based discrimination in the workplace and concludes that she would “explicitly overrule Gilbert so that the decision can generate no more mischief.”

Justice Stevens filed a concurring opinion. In it, he notes that his “appraisal of the Court’s decision in Gilbert is the same” today as it was when he dissented in the case thirty years ago. And although he agrees with much of Justice Ginsburg’s dissent, he nevertheless must accept Gilbert as governing until Congress enacted the PDA.