The XX Factor

Ruth Bader Ginsburg Ain’t No Oprah Winfrey

The Supreme Court ruled, 7-2 yesterday in AT&T v. Hulteen , that women denied credits toward their pension for their pregnancies in the 1960s and ‘70s-before it became illegal-were not the victims of gender discrimination. The question came down to whether AT&T could rely on past discriminatory practices-before 1978 pregnant women were denied disability leave granted to men-to calculate pensions. Writing for the majority, David Souter found that AT&T had no obligation to calculate pensions based on laws not in effect at the time: “Although adopting a service credit rule unfavorable to those out on pregnancy leave would violate Title VII today, a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA (Pregnancy Discrimination Act).”

Justice Ruth Bader Ginsburg, increasingly apt to voice her frustration at her colleagues’ seemingly limitless maleness, wrote in dissent that the AT&T workers “will receive, for the rest of their lives, lower pension benefits than colleagues who worked for AT&T no longer than they did. They will experience this discrimination not simply because of the adverse action to which they were subjected pre-PDA. Rather they are harmed today because AT&T has refused fully to heed the PDA’s core command,” that women should not face discrimination as a result of their pregnancies. This decision will up the stakes in Obama’s selection of a replacement for David Souter. But it’s a big mistake to read the dissent and opinion as an exercise in empathy versus mechanical application of the law. Ginsburg isn’t ranting. She’s applying the law as she believes it was intended to be applied.

Read Emily Bazelon’s response to Dahlia here.

Photograph of Ruth Bader Ginsburg by Mark Wilson/Getty Images.