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.