All of This Has Happened Before and It Will All Happen Again
February 17, 2009, 9:53 am
Filed under: Ian | Tags: ,

Last December, my colleague Harper Jean Tobin noted the similarity between the Supreme Court’s discredited decision in Ledbetter, and another case now before the Court:

Yet even as Ledbetter faces the likelihood of being overturned by the incoming Congress, AT&T and the Bush Administration are asking the high court to extend its erosion of civil rights laws even further in a case called AT&T v. Hulteen.

The plaintiffs are Nora Hulteen and three other employees who received reduced retirement benefits because of pregnancy leave they took in the 1960s and early 1970s. Along with other major employers, AT&T changed the way it calculated service credit for pregnancy leave in 1979 following the enactment of the Pregnancy Discrimination Act, but continued to award benefits on a discriminatory basis to those who had taken leave previously. (The parties dispute whether pregnancy-based discrimination was already illegal before the PDA, but that’s not really central to the case.) The company is now set to argue before the Supreme Court on Wednesday that these women can’t sue because any discrimination occurred decades ago when they took pregnancy leave, not when they were awarded lesser retirement benefits.

Sound familiar? As in Ledbetter, the core issue in this case is whether the “discriminatory act” will be defined in a reductive, technical way (focusing on the recording of credits in a database decades ago) or a more pragmatic one (focusing on the award of a smaller pension). AT&T argues that the discrepancy in benefits today is a mere “effect” of past discrimination, just as Lily Ledbetter’s receipt of lesser paychecks than her male coworkers was deemed to be a mere “effect” of past decisions.

But, of course, the “incoming Congress” is now just, The Congress, and President Obama just signed a bill overruling Ledbetter.  So Nora Hulteen should be in the clear, correct?  Unfortunately, that depends on whether the Supreme Court decides not to ignore the will of Congress for the third time in a row.

In 1989, the Supreme Court held in Lorance v. AT&T Technologies that women who were laid off because of a discriminatory seniority system waited too long to challenge that system, even though they took action almost immediately after the lay-offs.  Two years later, Congress responded with the Civil Rights Act of 1991, which overruled Lorance and restored accountability to companies that discriminate against their employees.

If this story sounds familiar, that’s because it is.  The issue in Lorance is almost identical to the issue presented in Ledbetter.  Yet the Supreme Court not only ignored the fact that Lorance is no longer good law when it ruled against Lilly Ledbetter, it expressly relied on Lorance in tossing Ledbetter out of court!

When the Supreme Court ignored Congress’ intent in Lorance, Congress responded swiftly and decisively, but the Supreme Court ignored that response in Ledbetter.  Congress responded again saying, “no, we really meant it when we overruled Lorance the first time.”  Hulteen will now tell us if two spankings are enough to convince John Roberts and Co. to behave themselves.


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