By Kathrine Jack, staff attorney at National Advocates for Pregnant Women
Abortion, Roe v. Wade and the extent to which fetuses should be afforded legal protection are key issues for many groups examining President Obama's first nominee to the Supreme Court, Judge Sonia Sotomayor. But as the court's decision last week in AT&T v. Hulteen illustrates, while public debate focuses on abortion and the rights of the fetus, we too often forget that the court has never fully recognized or protected the rights of pregnant women.
In Hulteen, Noreen Hulteen and three other women sued AT&T for reducing their pension benefits because they took time off work for pregnancy and childbirth. Two of the women were actually required by AT&T to take time off - a reflection of workplace practices at the time that presumed that all pregnant women were unfit to work or unwelcome because of their "condition." AT&T provides pension benefits based on a seniority system calculated based on years of employment minus uncredited personal leave time. Until the late 1970s, AT&T treated pregnancy and childbirth leave as uncredited personal time even though all other medical leave resulted in full service credit for the entire period of absence. Decades later, Ms. Hulteen and the other women learned that they were receiving a smaller pension benefit because of the uncredited pregnancy leave. The women argued that this calculation violated Title VII as amended by the Pregnancy Discrimination Act (PDA) in 1978.
The Hulteen majority opinion acknowledged that a company's failure to credit women for pregnancy leave taken today would be unlawful gender discrimination under the PDA. However, the court found that AT&T's practice was part of "bona fide seniority system" that, when adopted, "as a matter of law, as Gilbert held, was not gender-based discrimination." In other words, since pregnancy discrimination did not violate U.S. law before the PDA, AT&T was free to carry forward that discrimination in its current calculation of pension benefits.