Wednesday, May 20, 2009
I've had two days now to think about the Supreme Court's decision in AT&T v. Hulteen, which Jeff posted the syllabus to here, but I'm not sure that those two days have helped my understanding very much. I will admit that I was very surprised, not so much by the outcome, as by Justice Souter's and Justice Stevens' positions. Justice Souter wrote the majority's opinion for himself, the Chief Justice, and Justices Alito, Kennedy, Scalia, and Thomas. Justice Stevens concurred, despite his agreement with most of the points made by Justice Ginsburg in her dissent, and Justice Breyer was the only other Justice to sign onto the dissent.
The majority's decision boils down to two main points. The first point is that before the effective date of the Pregnancy Discrimination Act, discrimination on the basis of pregnancy was not discrimination on the basis of sex under Title VII. The second main point in the majority's reasoning was that the seniority rules applied to the plaintiffs at the time that the leave was taken rather than when they retired (and for this reason, the Ledbetter Act also provides no help). Because of these two conclusions together, the rules governing service credit before the PDA went into affect did not violate any law, and any continuing effect felt by them is insulated from liability by Title VII's rules on bona fide seniority systems, which provides that "it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different . . . privileges of employment pusuant to a bona fide seniority system . . . provided that such differences are not the result of an intention to discriminate because of . . . sex . . . ." 42 U.S.C. § 2000e-2(h).
Justice Ginsburg takes issue with both conclusions, but it is the discussion of the effect of the PDA that has the potential to be far reaching. The majority may be only explicitly interpreting Title VII and following the Court's 1976 decision in General Electric Co. v. Gilbert, but it implicitly concludes that Congress did not define sex discrimination in the PDA, but simply added an additional classification. In other words, the Court adopts a default rule that discrimination on the basis of pregnancy is not automatically discrimination on the basis of sex, and that Congress has chosen to add a prohibition of pregnancy discrimination to Title VII.
To understand the significance of this, let me compare this with the law on sexual harassment. In Meritor Savings Bank v. Vinson, the Court held that Title VII prohibited sexual harassment because sexual harassment was a kind of sex discrimination. It was not its own category of prohibited conduct. So anywhere discrimination on the basis of sex is prohibited (including in the Constitution), sexual harassment will be also. The Court had rejected that reasoning for pregnancy in Gilbert, holding that discrimination on the basis of pregnancy was not sex discrimination. So, it seems that the Court is now confirming that core principle, that pregnancy discrimination is not a kind of sex discrimination, which is the only way it can say that treating pregnancy differently from any other disability is "not the result of an intention to discriminate because of . . . sex . . . ."
So here is why that is so disturbing and potentially far reaching. If pregnancy discrimination is not by definition sex discrimination (a point I disagree with and that Justice Ginsburg counters in her dissent), then discrimination on the basis of pregnancy will only get rational basis review in a constitutional analysis, which means that classifications on the basis of pregnancy by government will often be upheld, which, in turn also means that the PDA is less likely to be within Congress' Fourteenth Amendment powers, and damages actions against state employers cannot be maintained for violations of the PDA.
It's possible that this is not what the majority did--that it did not reaffirm that core principle, but instead validated employer reliance on what the Supreme Court had said that Title VII meant prior to 1979. That is the ground on which Justice Stevens essentially concurred. Justice Ginsburg also disagreed with this reasoning, pointing out that the plaintiffs aren't asking for damages, but simply the service credit for the periods of their leaves--equal current benefits--which will result in such small changes that their demands can be met without disturbing the settled expectations of other workers. Their increased seniority doesn't give them priority over any other employee, as could be the case in a different application of a seniority system, for promotion, for example. Instead, it just determines the dollar amount of their pension benefits. She also disagreed that Gilbert remained good law because all of the circuits prior to it that had considered the issue found that pregnancy discrimination was sex discrimination, and Congress in the PDA made clear that pregnancy discrimination was a type of sex discrimination--it made clear what the definition was all along--even though it did not allow for damages for that discrimination prior to the new effective date of the Act.
I'm not optimistic that this will remain a fact-bound decision. Given the Court's conclusion in Iqbal, issued the same day, that the FBI had a "nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts," by virtue of the apparently sole fact that those aliens were Arab Muslims, a majority of the justices seem very keen on making fine distinctions about motive. There's just a lot of room for argument now under the reasoning in Gilbert.