AT&T Corp. v. Hulteen , 129 S. Ct. 1962 ( 2009 )

(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
AT&T CORP. v. HULTEEN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 07–543. Argued December 10, 2008—Decided May 18, 2009
Petitioner companies (collectively, AT&T) long based pension calcula
tions on a seniority system that relied on years of service minus un
credited leave time, giving less retirement credit for pregnancy ab
sences than for medical leave generally. In response to the ruling in
General Elec. Co. v. Gilbert, 429 U. S. 125, that such differential
treatment of pregnancy leave was not sex-based discrimination pro
hibited by Title VII of the Civil Rights Act of 1964, Congress added
the Pregnancy Discrimination Act (PDA) to Title VII in 1978 to make
it “clear that it is discriminatory to treat pregnancy-related condi
tions less favorably than other medical conditions,” Newport News
Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 684. On the
PDA’s effective date, AT&T replaced its old plan with the Anticipated
Disability Plan, which provided the same service credit for pregnancy
leave as for other disabilities prospectively, but did not make any ret
roactive adjustments for the pre-PDA personnel policies. Each of the
individual respondents therefore received less service credit for her
pre-PDA pregnancy leave than she would have for general disability
leave, resulting in a reduction in her total employment term and,
consequently, smaller AT&T pensions. They, along with their union,
also a respondent, filed Equal Employment Opportunity Commission
charges alleging discrimination based on sex and pregnancy in viola
tion of Title VII. The EEOC issued each respondent (collectively,
Hulteen) a determination letter finding reasonable cause to believe
AT&T had discriminated and a right-to-sue letter. Hulteen filed suit
in the District Court, which held itself bound by a Ninth Circuit
precedent finding a Title VII violation where post-PDA retirement
eligibility calculations incorporated pre-PDA accrual rules that dif
ferentiated based on pregnancy. The Circuit affirmed.
2 AT&T CORP. v. HULTEEN
Syllabus
Held: An employer does not necessarily violate the PDA when it pays
pension benefits calculated in part under an accrual rule, applied
only pre-PDA, that gave less retirement credit for pregnancy than for
medical leave generally. Because AT&T’s pension payments accord
with a bona fide seniority system’s terms, they are insulated from
challenge under Title VII §703(h). Pp. 4–14.
(a) AT&T’s benefit calculation rule is protected by §703(h), which
provides: “[I]t shall not be an unlawful employment practice for an
employer to apply different standards of compensation . . . pursuant
to a bona fide seniority . . . system . . . provided that such differences
are not the result of an intention to discriminate because of . . . sex.”
In Teamsters v. United States, 431 U. S. 324, 356, the Court held that
a pre-Title VII seniority system that disproportionately advantaged
white, as against minority, employees nevertheless exemplified a
bona fide system without any discriminatory terms under §703(h),
where the discrimination resulted from the employer’s hiring prac
tices and job assignments. Because AT&T’s system must also be
viewed as bona fide, i.e., as a system having no discriminatory terms,
§703(h) controls the result here, just as it did in Teamsters. This
Court held in Gilbert that an accrual rule limiting the seniority credit
for time taken for pregnancy leave did not unlawfully discriminate on
the basis of sex. As a matter of law, at that time, “an exclusion of
pregnancy from a disability-benefits plan providing general coverage
[was] not a gender-based discrimination at all.” 429 U. S., at 136.
The only way to conclude that §703(h) does not protect AT&T’s sys
tem would be to read the PDA as applying retroactively to recharac
terize AT&T’s acts as having been illegal when done. This is not a
serious possibility. Generally, there is “a presumption against retro
activity [unless] Congress itself has affirmatively considered the po
tential unfairness of retroactive application and determined that it is
an acceptable price to pay for the countervailing benefits.” Landgraf
v. USI Film Products, 511 U. S. 244, 272–273. There is no such clear
intent here. Section 706(e)(2)—which details when “an unlawful em
ployment practice occurs, with respect to a seniority system that has
been adopted for an intentionally discriminatory purpose”—has no
application because Gilbert unquestionably held that the feature of
AT&T’s seniority system at issue here was not discriminatory when
adopted, let alone intentionally so. Nor can it be argued that because
AT&T could have chosen to give post-PDA credit to pre-PDA preg
nancy leave when Hulteen retired, its failure to do so was facially
discriminatory at that time. If a choice to rely on a favorable statute
turned every past differentiation into contemporary discrimination,
§703(h) would never apply. Finally, Bazemore v. Friday, 478 U. S.
385—in which a pre-Title VII compensation plan giving black em
Cite as: 556 U. S. ____ (2009) 3
Syllabus
ployees less pay than whites was held to violate Title VII on its effec
tive date—is inapplicable because the Bazemore plan did not involve
a seniority system subject to §703(h) and the employer there failed to
eliminate the discriminatory practice when Title VII became law.
Pp. 4–13.
(b) A recent §706(e) amendment making it “an unlawful employ
ment practice . . . when an individual is affected by application of a
discriminatory compensation decision or other practice, including
each time . . . benefits [are] paid, resulting . . . from such a decision,”
§3(A), 123 Stat. 6, does not help Hulteen. AT&T’s pre-PDA decision
not to award Hulteen service credit for pregnancy leave was not dis
criminatory, with the consequence that Hulteen has not been “af
fected by application of a discriminatory compensation decision or
other practice.” Pp. 13–14.
498 F. 3d 1001, reversed.
SOUTER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined.
STEVENS, J., filed a concurring opinion. GINSBURG, J., filed a dissenting
opinion, in which BREYER, J., joined.
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–543
_________________
AT&T CORPORATION, PETITIONER v. NOREEN
HULTEEN ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 18, 2009]
JUSTICE SOUTER delivered the opinion of the Court.
The question is whether an employer necessarily vio
lates the Pregnancy Discrimination Act (PDA), 42 U. S. C.
§2000e(k), when it pays pension benefits calculated in part
under an accrual rule, applied only prior to the PDA, that
gave less retirement credit for pregnancy leave than for
medical leave generally. We hold there is no necessary
violation; and the benefit calculation rule in this case is
part of a bona fide seniority system under §703(h) of Title
VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e–
2(h), which insulates it from challenge.
I
Since 1914, AT&T Corporation (then American Tele
phone & Telegraph Company) and its Bell System Operat
ing Companies, including Pacific Telephone and Telegraph
Company (hereinafter, collectively, AT&T),1 have provided
——————
1 In 1982, a consent decree and Modified Final Judgment (MFJ) were
entered to resolve the Government’s antitrust suit against American
Telephone & Telegraph Company. The MFJ resulted in the break-up of
American Telephone & Telegraph and the divestiture of the local Bell
System Operating Companies, including Pacific Telephone and Tele
2 AT&T CORP. v. HULTEEN
Opinion of the Court
pensions and other benefits based on a seniority system
that relies upon an employee’s term of employment, un
derstood as the period of service at the company minus
uncredited leave time.2
In the 1960s and early to mid-1970s, AT&T employees
on “disability” leave got full service credit for the entire
periods of absence, but those who took “personal” leaves of
absence received maximum service credit of 30 days.
Leave for pregnancy was treated as personal, not disabil
ity. AT&T altered this practice in 1977 by adopting its
Maternity Payment Plan (MPP), entitling pregnant em
ployees to disability benefits and service credit for up to
six weeks of leave. If the absence went beyond six weeks,
however, it was treated as personal leave, with no further
benefits or credit, whereas employees out on disability
unrelated to pregnancy continued to receive full service
credit for the duration of absence. This differential treat
ment of pregnancy leave, under both the pre-1977 plan
and the MPP, was lawful: in General Elec. Co. v. Gilbert,
429 U. S. 125 (1976), this Court concluded that a disability
benefit plan excluding disabilities related to pregnancy
——————
graph Company (PT&T). Many employees of the former Bell System
Operating Companies became employees of the new AT&T Corporation.
The Plan of Reorganization, approved by the United States District
Court for the District of Columbia, United States v. Western Elec. Co.,
569 F. Supp. 1057, aff’d sub nom. California v. United States, 464 U. S.
1013 (1983), provided that “all employees will carry with them all pre
divestiture Bell System service regardless of the organizational unit or
corporation by which they are employed immediately after divestiture.”
App. 54. Respondents in this case were employed at PT&T. After the
divestiture of the Bell Operating Companies in 1984, these women
became employees of AT&T Corporation and their service calculations,
as computed by PT&T under its accrual rules, were carried over to
AT&T Corporation.
2 AT&T’s calculation of a term of employment is a more complicated
endeavor, requiring the creation and maintenance of an individual
“start date” for each employee, which is adjusted based on the relevant
leave policy.
Cite as: 556 U. S. ____ (2009) 3
Opinion of the Court
was not sex-based discrimination within the meaning of
Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U. S. C. §2000e et seq.
In 1978, Congress amended Title VII by passing the
PDA, 92 Stat. 2076, 42 U. S. C. §2000e(k), which super
seded Gilbert so as to make it “clear that it is discrimina
tory to treat pregnancy-related conditions less favorably
than other medical conditions.” Newport News Shipbuild
ing & Dry Dock Co. v. EEOC, 462 U. S. 669, 684 (1983).
On April 29, 1979, the effective date of the PDA, AT&T
adopted its Anticipated Disability Plan which replaced the
MPP and provided service credit for pregnancy leave on
the same basis as leave taken for other temporary disabili
ties. AT&T did not, however, make any retroactive ad
justments to the service credit calculations of women who
had been subject to the pre-PDA personnel policies.
Four of those women are named respondents in this
case. Each of them received less service credit for preg
nancy leave than she would have accrued on the same
leave for disability: seven months less for Noreen Hulteen;
about six months for Eleanora Collet; and about two for
Elizabeth Snyder and Linda Porter. Respondents
Hulteen, Collet, and Snyder have retired from AT&T;
respondent Porter has yet to. If her total term of employ
ment had not been decreased due to her pregnancy leave,
each would be entitled to a greater pension benefit.
Eventually, each of the individual respondents and
respondent Communications Workers of America (CWA),
the collective-bargaining representative for the majority of
AT&T’s nonmanagement employees, filed charges of dis
crimination with the Equal Employment Opportunity
Commission (EEOC), alleging discrimination on the basis
of sex and pregnancy in violation of Title VII. In 1998, the
EEOC issued a Letter of Determination finding reasonable
cause to believe that AT&T had discriminated against
respondent Hulteen and “a class of other similarly
4 AT&T CORP. v. HULTEEN
Opinion of the Court
situated female employees whose adjusted [commence
ment of service] date has been used to determine eligibil
ity for a service or disability pension, the amount of pen
sion benefits, and eligibility for certain other benefits and
programs, including early retirement offerings.” App. 54–
55. The EEOC issued a notice of right to sue to each
named respondent and the CWA (collectively, Hulteen),
and Hulteen filed suit in the United States District Court
for the Northern District of California.
On dueling motions for summary judgment, the District
Court held itself bound by a prior Ninth Circuit decision,
Pallas v. Pacific Bell, 940 F. 2d 1324 (1991), which found a
Title VII violation where post-PDA retirement eligibility
calculations incorporated pre-PDA accrual rules that
differentiated on the basis of pregnancy. See App. to Pet.
for Cert. 121a–122a. The Circuit, en banc, affirmed and
held that Pallas’s conclusion that “calculation of service
credit excluding time spent on pregnancy leave violates
Title VII was, and is, correct.” 498 F. 3d 1001, 1003
(2007).
The Ninth Circuit’s decision directly conflicts with the
holdings of the Sixth and Seventh Circuits that reliance on
a pre-PDA differential accrual rule to determine pension
benefits does not constitute a current violation of Title VII.
See Ameritech Benefit Plan Comm. v. Communication
Workers of Am., 220 F. 3d 814 (CA7 2000) (finding no
actionable Title VII violation given the existence of a bona
fide seniority system); Leffman v. Sprint Corp., 481 F. 3d
428 (CA6 2007) (characterizing claim as challenging the
continuing effects of past discrimination rather than
alleging a current Title VII violation). We granted certio
rari in order to resolve this split, 554 U. S. __ (2008), and
now reverse the judgment of the Ninth Circuit.
II
Title VII makes it an “unlawful employment practice”
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
for an employer “to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s . . .
sex.” 42 U. S. C. §2000e–2(a)(1). Generally, a claim under
Title VII must be filed “within one hundred and eighty
days after the alleged unlawful employment practice
occurred,” §2000e–5(e)(1). In this case, Hulteen has iden
tified the challenged practice as applying the terms of
AT&T’s seniority system to calculate and pay pension
benefits to women who took pregnancy leaves before April
29, 1979. She says the claim is timely because the old
service credit differential for pregnancy leave was carried
forward through the system’s calculations so as to produce
an effect in the amount of the benefit when payments
began.
There is no question that the payment of pension bene
fits in this case is a function of a seniority system, given
the fact that calculating benefits under the pension plan
depends in part on an employee’s term of employment. As
we have said, “[a] ‘seniority system’ is a scheme that, alone
or in tandem with non-‘seniority’ criteria, allots to employ
ees ever improving employment rights and benefits as
their relative lengths of pertinent employment increase.”
California Brewers Assn. v. Bryant, 444 U. S. 598, 605–
606 (1980) (footnote omitted). Hulteen is also undoubtedly
correct that AT&T’s personnel policies affecting the calcu
lation of any employee’s start date should be considered
“ancillary rules” and elements of the system, necessary for
it to operate at all, being rules that “define which passages
of time will ‘count’ towards the accrual of seniority and
which will not.” Id., at 607.
But contrary to Hulteen’s position, establishing the
continuity of a seniority system whose results depend in
part on obsolete rules entailing disadvantage to once
pregnant employees does not resolve this case. Although
adopting a service credit rule unfavorable to those out on
6 AT&T CORP. v. HULTEEN
Opinion of the Court
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. “[S]eniority systems are afforded special treatment
under Title VII,” Trans World Airlines, Inc. v. Hardison,
432 U. S. 63, 81 (1977), reflecting Congress’s understand
ing that their stability is valuable in its own right. Hence,
§703(h):
“Notwithstanding any other provision of this subchap
ter, it shall not be an unlawful employment practice
for an employer to apply different standards of com
pensation, or different terms, conditions, or privileges
of employment pursuant to a bona fide seniority . . .
system . . . provided that such differences are not the
result of an intention to discriminate because of race,
color, religion, sex, or national origin . . . .” 42 U. S. C.
§2000e–2(h).
Benefit differentials produced by a bona fide seniority
based pension plan are permitted unless they are “the
result of an intention to discriminate.” Ibid.3
——————
3 Section 701(k) of Title VII provides that “women affected by preg
nancy, . . . shall be treated the same for all employment-related pur
poses, including receipt of benefits under fringe benefit programs, as
other persons not so affected but similar in their ability or inability to
work, and nothing in section [703(h)] of this title shall be interpreted to
permit otherwise.” 42 U. S. C. §2000e(k). Hulteen contends that, in
light of this language, §703(h) does not apply at all to claims of fringe
benefit discrimination under the PDA. We cannot agree. Hulteen’s
reading would result in the odd scenario that pregnancy discrimination,
alone among all categories of discrimination (race, color, religion, other
sex-based claims, and national origin), would receive dispensation from
the general application of subsection (h).
A better explanation is that §701(k) refers only to the final sentence
of §703(h), which reads that “[i]t shall not be an unlawful employment
practice under this subchapter for any employer to differentiate upon
the basis of sex in determining the amount of the wages or compensa
tion paid or to be paid to employees of such employer if such differen
Cite as: 556 U. S. ____ (2009) 7
Opinion of the Court
In Teamsters v. United States, 431 U. S. 324 (1977),
advantages of a seniority system flowed disproportionately
to white, as against minority, employees, because of an
employer’s prior discrimination in job assignments. We
recognized that this “disproportionate distribution of
advantages does in a very real sense operate to freeze the
status quo of prior discriminatory employment practices[,]
[b]ut both the literal terms of §703(h) and the legislative
history of Title VII demonstrate that Congress considered
this very effect of many seniority systems and extended a
measure of immunity to them.” Id., at 350 (internal quota
tion marks omitted). “[T]he unmistakable purpose of
§703(h) was to make clear that the routine application of a
bona fide seniority system would not be unlawful under
Title VII.” Id., at 352. The seniority system in Teamsters
exemplified a bona fide system without any discriminatory
terms (the discrimination having occurred in executive
action hiring employees and assigning jobs), so that the
Court could conclude that the system “did not have its
genesis in . . . discrimination, and . . . has been maintained
free from any illegal purpose.” Id., at 356.
AT&T’s system must also be viewed as bona fide, that
——————
tiation is authorized by the provisions of section 206(d) of title 29.” 42
U. S. C. §2000e–2(h). This final sentence of subsection (h), referred to
as the Bennett Amendment, served to reconcile the Equal Pay Act of
1963, 77 Stat. 56, 29 U. S. C. §206(d), with Title VII. See County of
Washington v. Gunther, 452 U. S. 161, 194 (1981) (Rehnquist, J.,
dissenting). In General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this
Court had concluded that the amendment permitted wage discrimina
tion based on pregnancy. Id., at 144–145. By adding the language,
“nothing in section [703(h)] of this title shall be interpreted to permit
otherwise,” to the PDA, 42 U. S. C. §2000e(k), Congress wanted to
ensure that, in addition to replacing Gilbert with a rule that discrimi
nation on the basis of pregnancy is sex discrimination, it foreclosed the
possibility that this Court’s interpretation of the Bennett Amendment
could be construed, going forward, to permit wage discrimination based
on pregnancy.
8 AT&T CORP. v. HULTEEN
Opinion of the Court
is, as a system that has no discriminatory terms, with the
consequence that subsection (h) controls the result here,
just as in Teamsters. It is true that in this case the pre-
April 29, 1979 rule of differential treatment was an ele
ment of the seniority system itself; but it did not taint the
system under the terms of subsection (h), because this
Court held in Gilbert that an accrual rule limiting the
seniority credit for time taken for pregnancy leave did not
unlawfully discriminate on the basis of sex. As a matter of
law, at that time, “an exclusion of pregnancy from a dis
ability-benefits plan providing general coverage [was] not
a gender-based discrimination at all.” 429 U. S., at 136.4
Although the PDA would have made it discriminatory to
continue the accrual policies of the old rule, AT&T
amended that rule as of the effective date of the Act, April
29, 1979; the new one, treating pregnancy and other tem
porary disabilities the same way, remains a part of
AT&T’s seniority system today.
This account of litigation, legislation, and the evolution
of the system’s terms is the answer to Hulteen’s argument
that Teamsters supports her position. She correctly points
out that a “seniority system that perpetuates the effects of
——————
4 Gilbert recognized that differential treatment could still represent
intentionally discriminatory treatment if pretextual, 429 U. S., at 136,
and that a forbidden discriminatory effect could result if a disability
benefits plan produced overall preferential treatment for one sex, id., at
138. Neither theory is advanced here.
In Nashville Gas Co. v. Satty, 434 U. S. 136 (1977), we reaffirmed our
holding in Gilbert that Title VII “did not require that greater economic
benefits be paid to one sex or the other ‘because of their differing roles
in “the scheme of human existence.” ’ ” Id., at 142 (quoting Gilbert,
supra, at 139, n. 17). But we noted that Gilbert’s holding did not
extend to “permit an employer to burden female employees in such a
way as to deprive them of employment opportunities because of their
different role.” Satty, supra, at 142. Cancellation of benefits previously
accrued, therefore, was considered facially violative at the time, but
such a situation is not presented here.
Cite as: 556 U. S. ____ (2009) 9
Opinion of the Court
pre-Act discrimination cannot be bona fide if an intent to
discriminate entered into its very adoption,” 431 U. S., at
346, n. 28, and she would characterize AT&T’s seniority
system as intentionally discriminatory, on the theory that
the accrual rule for pregnancy leave was facially discrimi
natory from the start. She claims further support from
Automobile Workers v. Johnson Controls, Inc., 499 U. S.
187 (1991), in which we said that “explicit facial discrimi
nation does not depend on why the employer discriminates
but rather on the explicit terms of the discrimination,” and
that such facial discrimination is intentional discrimina
tion even if not based on any underlying malevolence. Id.,
at 199. Hulteen accordingly claims that the superseded
differential affecting current benefits was, and remains,
“discriminatory in precisely the way the PDA prohibits,”
Brief for Respondents 18.
But Automobile Workers is not on point. The policy in
that case, prohibiting women from working in jobs with
lead exposure unless they could show themselves incapa
ble of child bearing, was put in place after the PDA be
came law and under its terms was facially discriminatory.
In this case, however, AT&T’s intent when it adopted the
pregnancy leave rule (before the PDA) was to give differ
ential treatment that as a matter of law, as Gilbert held,
was not gender-based discrimination. Because AT&T’s
differential accrual rule was therefore a permissible dif
ferentiation given the law at the time, there was nothing
in the seniority system at odds with the subsection (h)
bona fide requirement. The consequence is that subsec
tion (h) is as applicable here as it was in Teamsters, and
the calculations of credited service that determine pen
sions are the results of a permissibly different standard
under subsection (h) today.5
——————
5 Although certain circuit courts had previously concluded that treat
ing pregnancy leave less favorably than other disability leave consti
10 AT&T CORP. v. HULTEEN
Opinion of the Court
The only way to conclude here that the subsection would
not support the application of AT&T’s system would be to
read the PDA as applying retroactively to recharacterize
the acts as having been illegal when done, contra Gilbert.6
But this is not a serious possibility. As we have said,
“[b]ecause it accords with widely held intuitions about
how statutes ordinarily operate, a presumption
against retroactivity will generally coincide with legis
lative and public expectations. Requiring clear intent
assures that Congress itself has affirmatively consid
ered the potential unfairness of retroactive applica
tion and determined that it is an acceptable price to
pay for the countervailing benefits.” Landgraf v. USI
Film Products, 511 U. S. 244, 272–273 (1994).
There is no such clear intent here, indeed, no indication at
all that Congress had retroactive application in mind; the
evidence points the other way. Congress provided for the
PDA to take effect on the date of enactment, except in its
application to certain benefit programs, as to which effec
tiveness was held back 180 days. Act of Oct. 31, 1978,
§2(b), 92 Stat. 2076, 42 U. S. C. §2000e(k) (1979 ed.). The
House Report adverted to these benefit schemes:
“As the Gilbert decision permits employers to exclude
——————
tuted sex discrimination under Title VII, this Court in Gilbert clearly
rejected that conclusion, 429 U. S., at 147 (Brennan, J., dissenting); see
also id., at 162 (STEVENS, J., dissenting). Gilbert declared the meaning
and scope of sex discrimination under Title VII and held that previous
views to the contrary were wrong as a matter of law. And “[a] judicial
construction of a statute is an authoritative statement of what the
statute meant before as well as after the decision of the case giving rise
to that construction.” Rivers v. Roadway Express, Inc., 511 U. S. 298,
312–313 (1994); see also id., at 313, n. 12. It is therefore to no avail to
argue that the pregnancy leave cap was unlawful before Gilbert and
that the PDA returned the law to its prior state.
6 In so saying, we assume that §701(k) has no application, as ex
plained in footnote 3, supra. Cf. post, at 4–6 (GINSBURG, J., dissenting).
Cite as: 556 U. S. ____ (2009) 11
Opinion of the Court
pregnancy-related coverage from employee benefit
plans, [the bill] provides for [a] transition period of
180 days to allow employees [sic] to comply with the
explicit provisions of this amendment. It is the com
mittee’s intention to provide for an orderly and equi
table transition, with the least disruption for employ
ers and employees, consistent with the purposes of the
bill.” H. R. Rep. No. 95–948, p. 8 (1978).
This is the language of prospective intent, not retrospec
tive revision.
Hulteen argues that she nonetheless has a challenge to
AT&T’s current payment of pension benefits under
§706(e)(2) of Title VII, believing (again mistakenly) that
this subsection affects the validity of any arrangement
predating the PDA that would be facially discriminatory if
instituted today. Brief for Respondents 27–29. Section
706(e)(2) provides that
“an unlawful employment practice occurs, with re
spect to a seniority system that has been adopted for
an intentionally discriminatory purpose in violation of
this subchapter (whether or not that discriminatory
purpose is apparent on the face of the seniority provi
sion), when the seniority system is adopted, when an
individual becomes subject to the seniority system, or
when a person aggrieved is injured by the application
of the seniority system or provision of the system.” 42
U. S. C. §2000e–5(e)(2).
But, as the text makes clear, this subsection determines
the moments at which a seniority system violates Title VII
only if it is a system “adopted for an intentionally dis
criminatory purpose in violation of this subchapter.” As
discussed above, the Court has unquestionably held that
the feature of AT&T’s seniority system at issue was not
discriminatory when adopted, let alone intentionally so in
violation of this subchapter. That leaves §706(e)(2) with
12 AT&T CORP. v. HULTEEN
Opinion of the Court
out any application here.
It is equally unsound for Hulteen to argue that when
she retired AT&T could have chosen to give post-PDA
credit to pre-PDA pregnancy leave, making its failure to
do so facially discriminatory at that time.7 If a choice to
rely on a favorable statute turned every past differentia
tion into contemporary discrimination, subsection (h)
would never apply.
Hulteen’s remaining argument (as of the time the case
was submitted to us) is that our decision in Bazemore v.
Friday, 478 U. S. 385 (1986) (per curiam), is on her side.
In Bazemore, black employees of the North Carolina Agri
cultural Extension Service, who received less pay than
comparable whites under a differential compensation plan
extending back to pre-Title VII segregation, brought suit
in 1971 claiming that pay disparities persisted. Id., at
389–391. We concluded that “[a] pattern or practice that
would have constituted a violation of Title VII, but for the
fact that the statute had not yet become effective, became
a violation upon Title VII’s effective date, and to the ex
tent an employer continued to engage in that act or prac
tice, it is liable under that statute.” Id., at 395.
Bazemore has nothing to say here. To begin with, it did
not involve a seniority system subject to subsection (h);
rather, the employer in Bazemore had a racially based pay
structure under which black employees were paid less
than white employees. Further, after Title VII became
law, the employer failed to eliminate the discriminatory
practice, even though the new statute had turned what
once was legally permissible into something unlawful.
Bazemore would be on point only if, after the PDA, AT&T
——————
7 Tothe extent Hulteen means to claim, as a factual matter, that the
accrual rule was merely advisory, requiring a fresh choice to apply it in
the benefit context, she points to nothing in the record supporting such
a proposition.
Cite as: 556 U. S. ____ (2009) 13
Opinion of the Court
continued to apply an unfavorable credit differential for
pregnancy leave simply because it had begun to do that
before the PDA. AT&T’s system, by contrast, provides
future benefits based on past, completed events, that were
entirely lawful at the time they occurred.
III
We have accepted supplemental briefing after the ar
gument on the possible effect on this case of the recent
amendment to §706(e) of Title VII, adopted in response to
Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618(2007), and dealing specifically with discrimination in
compensation:
“For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in com
pensation in violation of this title, when a discrimina
tory compensation decision or other practice is
adopted, when an individual becomes subject to a dis
criminatory compensation decision or other practice,
or when an individual is affected by application of a
discriminatory compensation decision or other prac
tice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part
from such a decision or other practice.” Lilly Ledbetter
Fair Pay Act of 2009, Pub. L. 111–2, §3(A), 123 Stat.
5–6.
Hulteen argues that payment of the pension benefits at
issue in this case marks the moment at which she “is
affected by application of a discriminatory compensation
decision or other practice,” and she reads the statute as
providing that such a “decision or other practice” may not
be applied to her disadvantage.
But the answer to this claim is essentially the same as
the answer to Hulteen’s argument that §706(e)(2) helps
her, supra, at 11–12. For the reasons already discussed,
14 AT&T CORP. v. HULTEEN
Opinion of the Court
AT&T’s pre-PDA decision not to award Hulteen service
credit for pregnancy leave was not discriminatory, with
the consequence that Hulteen has not been “affected by
application of a discriminatory compensation decision or
other practice.” §3(A), 123 Stat. 6.
IV
Bona fide seniority systems allow, among other
things, for predictable financial consequences, both for the
employer who pays the bill and for the employee who gets
the benefit. Cf. Central Laborers’ Pension Fund v. Heinz,
541 U. S. 739, 743 (2004) (noting that the central feature
of the Employee Retirement Income Security Act of 1974,
29 U. S. C. §1001 et seq., is its “object of protecting em
ployees’ justified expectations of receiving the benefits
their employers promise them”). As §703(h) demonstrates,
Congress recognized the salience of these reliance inter
ests and, where not based upon or resulting from an inten
tion to discriminate, gave them protection. Because the
seniority system run by AT&T is bona fide, the judgment
of the Court of Appeals for the Ninth Circuit is reversed.
It is so ordered.
Cite as: 556 U. S. ____ (2009) 1
STEVENS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–543
_________________
AT&T CORPORATION, PETITIONER v. NOREEN
HULTEEN ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 18, 2009]
JUSTICE STEVENS, concurring.
Today my appraisal of the Court’s decision in General
Elec. Co. v. Gilbert, 429 U. S. 125 (1976), is the same as
that expressed more than 30 years ago in my dissent. I
therefore agree with much of what JUSTICE GINSBURG has
to say in this case. Nevertheless, I must accept Gilbert’s
interpretation of Title VII as having been the governing
law until Congress enacted the Pregnancy Discrimination
Act. Because this case involves rules that were in force
only prior to that Act, I join the Court’s opinion.
Cite as: 556 U. S. ____ (2009) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–543
_________________
AT&T CORPORATION, PETITIONER v. NOREEN
HULTEEN ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 18, 2009]
JUSTICE GINSBURG, with whom JUSTICE BREYER joins,
dissenting.
In General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this
Court held that a classification harmful to women based
on pregnancy did not qualify as discrimination “because of
. . . sex” prohibited by Title VII of the Civil Rights Act of
1964. 42 U. S. C. §2000e–2(a)(1). Exclusion of pregnancy
from an employer’s disability benefits plan, the Court
ruled, “is not a gender-based discrimination at all.” 429
U. S., at 136. See also id., at 138 (describing G. E.’s plan
as “facially nondiscriminatory” and without “any gender
based discriminatory effect”).1 In dissent, JUSTICE
STEVENS wondered how the Court could come to that
conclusion, for “it is the capacity to become pregnant
which primarily differentiates the female from the male.”
Id., at 162.
Prior to Gilbert, all Federal Courts of Appeals presented
——————
1 The Court’s opinion in Gilbert extended to Title VII reasoning ear
lier advanced in Geduldig v. Aiello, 417 U. S. 484 (1974). In that case,
the Court upheld against an equal protection challenge California’s
disability insurance system, which excluded coverage for disabilities
occasioned by normal pregnancy. California’s system, the Court noted,
did not divide workers according to their sex; instead, it “divide[d]
potential recipients into two groups—pregnant women and nonpreg
nant persons.” Id., at 496–497, n. 20.
2 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
with the question had determined that pregnancy dis
crimination violated Title VII.2 Guidelines issued in 1972
by the Equal Employment Opportunity Commission
(EEOC or Commission) declared that disadvantageous
classifications of employees based on pregnancy-related
conditions are “in prima facie violation of Title VII.” 37
Fed. Reg. 6837 (1972). In terms closely resembling the
EEOC’s current Guideline, see 29 CFR §1604.10 (2008),
the Commission counseled:
“Written and unwritten employment policies and
practices involving . . . the accrual of seniority and
other benefits and privileges . . . shall be applied to
disability due to pregnancy or childbirth on the same
terms and conditions as they are applied to other
temporary disabilities.” 37 Fed. Reg. 6837.
The history of women in the paid labor force underpinned
and corroborated the views of the lower courts and the
——————
2 See Communications Workers of America v. AT&T Co., Long Lines
Dept., 513 F. 2d 1024 (CA2 1975); Wetzel v. Liberty Mut. Ins. Co., 511 F.
2d 199 (CA3 1975), vacated on other grounds and remanded, 424 U. S.
737 (1976); Gilbert v. General Elec. Co., 519 F. 2d 661 (CA4 1975), rev’d,
429 U. S. 125 (1976); Satty v. Nashville Gas Co., 522 F. 2d 850 (CA6
1975), aff’d in part, vacated in part, and remanded, 434 U. S. 136(1977); Holthaus v. Compton & Sons, Inc. 514 F. 2d 651 (CA8 1975);
Berg v. Richmond Unified School Dist., 528 F. 2d 1208 (CA9 1975);
Hutchison v. Lake Oswego School Dist. No. 7, 519 F. 2d 961 (CA9 1975).
For decisions under state human rights laws to the same effect, see,
e.g., Brooklyn Union Gas Co. v. New York State Human Rights Appeal
Bd., 41 N. Y. 2d 84, 359 N. E. 2d 393 (1976); Anderson v. Upper Bucks
Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A. 2d
126 (1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n,
268 N. W. 2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts
Comm’n Against Discrimination, 375 Mass. 160, 375 N. E. 2d 1192(1978); Minnesota Min. & Mfg. Co. v. State, 289 N. W. 2d 396 (Minn.
1979); Michigan Dept. of Civil Rights ex rel. Jones v. Michigan Dept. of
Civil Serv., 101 Mich. App. 295, 301 N. W. 2d 12 (1980); Badih v. Myers,
36 Cal. App. 4th 1289, 43 Cal. Rptr. 2d 229 (1995).
Cite as: 556 U. S. ____ (2009) 3
GINSBURG, J., dissenting
EEOC. In generations preceding—and lingering long
after—the passage of Title VII, that history demonstrates,
societal attitudes about pregnancy and motherhood se
verely impeded women’s employment opportunities. See
Molnar, “Has the Millennium Yet Dawned?”: A History of
Attitudes Toward Pregnant Workers in America, 12 Mich.
J. Gender & L. 163, 170–176 (2005); S. Kamerman, A.
Kahn, & P. Kingston, Maternity Policies and Working
Women 32–38 (1983).
Congress swiftly reacted to the Gilbert decision. Less
than two years after the Court’s ruling, Congress passed
the Pregnancy Discrimination Act of 1978 (PDA) to over
turn Gilbert and make plain the legislators’ clear under
standing that discrimination based on pregnancy is dis
crimination against women.3 The Act amended Title VII
to require that women affected by pregnancy “be treated
the same for all employment-related purposes, including
receipt of benefits under fringe benefit programs, as other
persons not so affected but similar in their ability or in
ability to work.” 42 U. S. C. §2000e(k).
The PDA does not require redress for past discrimina
tion. It does not oblige employers to make women whole
for the compensation denied them when, prior to the Act,
they were placed on pregnancy leave, often while still
ready, willing, and able to work, and with no secure right
to return to their jobs after childbirth.4 But the PDA does
——————
3 See, e.g., H. R. Rep. No. 95–948, p. 3 (1978) (“[T]he assumption that
women will become pregnant and leave the labor force . . . is at the root
of the discriminatory practices which keep women in low-paying and
dead-end jobs.”).
4 For examples of once prevalent restrictions, see Turner v. Utah
Dept. of Employment Security, 423 U. S. 44 (1975) (per curiam) (state
statute made pregnant women ineligible for unemployment benefits for
a period extending from 12 weeks before the expected date of childbirth
until six weeks after childbirth); Cleveland Bd. of Ed. v. LaFleur, 414
U. S. 632, 634–635 (1974) (school board rule forced pregnant public
4 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
protect women, from and after April 1979, when the Act
became fully effective, against repetition or continuation of
pregnancy-based disadvantageous treatment.
Congress interred Gilbert more than 30 years ago, but
the Court today allows that wrong decision still to hold
sway. The plaintiffs (now respondents) in this action 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: Here
after, for “all employment-related purposes,” disadvanta
geous treatment “on the basis of pregnancy, childbirth, or
related medical conditions” must cease. 42 U. S. C.
§2000e(k) (emphasis added). I would hold that AT&T
committed a current violation of Title VII when, post-PDA,
it did not totally discontinue reliance upon a pension
calculation premised on the notion that pregnancy-based
classifications display no gender bias.
I
Enacted as an addition to the section defining terms
used in Title VII, the PDA provides:
“The terms ‘because of sex’ or ‘on the basis of sex’
include, but are not limited to, because of or on the
basis of pregnancy, childbirth, or related medical con
ditions; and women affected by pregnancy, childbirth,
or related medical conditions shall be treated the
same for all employment-related purposes, including
——————
school teachers to take unpaid maternity leave five months before the
expected date of childbirth, with no guarantee of re-employment). Cf.
Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721, 736–737
(2003) (sex discrimination, Congress recognized, is rooted, primarily, in
stereotypes about “women when they are mothers or mothers-to-be”
(internal quotation marks omitted)).
Cite as: 556 U. S. ____ (2009) 5
GINSBURG, J., dissenting
receipt of benefits under fringe benefit programs, as
other persons not so affected but similar in their abil
ity or inability to work . . . .” 42 U. S. C. §2000e(k).
The text of the Act, this Court has acknowledged, “unam
biguously expressed [Congress’] disapproval of both the
holding and the reasoning of the Court in the Gilbert
decision.” Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U. S. 669, 678 (1983). “Proponents of the
[PDA],” the Court observed, “repeatedly emphasized that
the Supreme Court had erroneously interpreted congres
sional intent and that amending legislation was necessary
to reestablish the principles of Title VII law as they had
been understood prior to the Gilbert decision.” Id., at 679.
See also California Fed. Sav. & Loan Assn. v. Guerra, 479
U. S. 272, 284–285 (1987) (explaining that “the first clause
of the PDA reflects Congress’ disapproval of the reasoning
in Gilbert,” while “the second clause . . . illustrate[s] how
discrimination against pregnancy is to be remedied”). Cf.
Newport News, 462 U. S., at 694 (Rehnquist, J., dissent
ing) (criticizing the Court for concluding that the PDA
“renders all of Gilbert obsolete”).
Today’s case presents a question of time. As the Court
comprehends the PDA, even after the effective date of the
Act, lower pension benefits perpetually can be paid to
women whose pregnancy leaves predated the PDA. As to
those women, the Court reasons, the disadvantageous
treatment remains as Gilbert declared it to be: “facially
nondiscriminatory,” and without “any gender-based dis
criminatory effect,” 429 U. S., at 138. See ante, at 8.
There is another way to read the PDA, one better at
tuned to Congress’ “unambiguou[s] . . . disapproval of both
the holding and the reasoning” in Gilbert. Newport News,
462 U. S., at 678. On this reading, the Act calls for an
immediate end to any pretense that classification on the
basis of pregnancy can be “facially nondiscriminatory.”
6 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
While the PDA does not reach back to redress discrimina
tion women encountered before Congress overruled Gil
bert, the Act instructs employers forthwith to cease and
desist: From and after the PDA’s effective date, classifica
tions treating pregnancy disadvantageously must be
recognized, “for all employment-related purposes,” includ
ing pension payments, as discriminatory both on their face
and in their impact. So comprehended, the PDA requires
AT&T to pay Noreen Hulteen and others similarly
situated pension benefits untainted by pregnancy-based
discrimination.
II
The Court’s rejection of plaintiffs’ claims to pension
benefits undiminished by discrimination “because of
[their] sex,” 42 U. S. C. §2000e–2(h), centers on §703(h) of
Title VII, as construed by this Court in Teamsters v.
United States, 431 U. S. 324 (1977). See ante, at 4–8.
Section 703(h) permits employers “to apply different stan
dards of compensation . . . pursuant to a bona fide senior
ity . . . system.” 42 U. S. C. §2000e–2(h). Congress en
acted §703(h), Teamsters explained, to “exten[d] a measure
of immunity” to seniority systems even when they “operate
to ‘freeze’ the status quo of prior discriminatory employ
ment practices.” 431 U. S., at 350 (quoting Griggs v. Duke
Power Co., 401 U. S. 424, 430 (1971)).
Teamsters involved a seniority system attacked under
Title VII as perpetuating race-based discrimination.
Minority group members ranked low on the seniority list
because, pre-Title VII, they were locked out of the job
category in question. But the seniority system itself, the
Court reasoned, “did not have its genesis in . . . discrimi
nation,” contained no discriminatory terms, and applied
“equally to all races and ethnic groups,” 431 U. S., at 355–
356. Therefore, the Court concluded, §703(h) sheltered the
system despite its adverse impact on minority group
Cite as: 556 U. S. ____ (2009) 7
GINSBURG, J., dissenting
members only recently hired for, or allowed to transfer
into, more desirable jobs. See id., at 356.
This case differs from Teamsters because AT&T’s senior
ity system itself was infected by an overt differential. Cf.
ante, at 8 (“[R]ule of differential treatment was an element
of the seniority system itself . . . .”). One could scarcely
maintain that AT&T’s scheme was “neutral on [its] face
and in intent,” discriminating against women only “in
effect.” Cf. Teamsters, 431 U. S., at 349. Surely not a
term fairly described as “equally [applicable] to all,” id., at
355, AT&T’s prescription regarding pregnancy leave
would gain no immunity under §703(h) but for this Court’s
astonishing declaration in Gilbert: “[E]xclusion of preg
nancy from a disability-benefits plan providing general
coverage,” the Court decreed, “[was] not a gender-based
discrimination at all.” 429 U. S., at 136. See ante, at 8
(because of Gilbert, AT&T’s disadvantageous treatment of
pregnancy leave “did not taint the system under the terms
of [§703(h)]”).
Were the PDA an ordinary instance of legislative revi
sion by Congress in response to this Court’s construction
of a statutory text, I would not dissent from today’s deci
sion. But Congress made plain its view that Gilbert was
not simply wrong about the character of a classification
that treats leave necessitated by pregnancy and childbirth
disadvantageously. In disregarding the opinions of other
courts, see supra, at 2, n. 2, of the agency that superin
tends enforcement of Title VII, see supra, at 2,5 and, most
——————
5 The Equal Employment Opportunity Commission’s (EEOC) current
Compliance Manual counsels: “While the denial of service credit to
women on maternity leave was not unlawful when [the charging party]
took her leave . . . , the employer’s decision to incorporate that denial of
service credit in calculating seniority [post-PDA] is discriminatory.” 2
EEOC Compliance Manual §3, p. 627:0023 (effective Oct. 3, 2000).
EEOC compliance manuals, this Court has recognized, “reflect ‘a body
of experience and informed judgment to which courts and litigants may
8 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
fundamentally, the root cause of discrimination against
women in the paid labor force, this Court erred egre
giously. Congress did not provide a remedy for pregnancy
based discrimination already experienced before the PDA
became effective. I am persuaded by the Act’s text and
legislative history, however, that Congress intended no
continuing reduction of women’s compensation, pension
benefits included, attributable to their placement on preg
nancy leave.
III
A few further considerations influence my dissenting
view. Seeking equal treatment only from and after the
PDA’s effective date, plaintiffs present modest claims. As
the Court observes, they seek service credit, for pension
benefit purposes, for the periods of their pregnancy leaves.
For the named plaintiffs, whose claims are typical, the
uncounted leave days are these: “seven months . . . for
Noreen Hulteen; about six months for Eleanora Collet;
and about two for Elizabeth Snyder and Linda Porter.”
Ante, at 3. See also 498 F. 3d 1001, 1004 (CA9 2007) (en
banc) (case below). Their demands can be met without
disturbing settled expectations of other workers, the core
concern underlying the shelter §703(h) provides for senior
ity systems. See Franks v. Bowman Transp. Co., 424 U. S.
747, 766, 773, and n. 33 (1976) (“ ‘benefit’ seniority,” unlike
“ ‘competitive status’ seniority,” does not conflict with
economic interests of other employees).
Furthermore, as Judge Rymer explained in her opinion
dissenting from the Ninth Circuit’s initial panel opinion,
441 F. 3d 653, 665–666 (2006), the relief plaintiffs request
is not retroactive in character. Plaintiffs request no back
pay or other compensation for past injury. They seek
——————
properly resort for guidance.’ ” Federal Express Corp. v. Holowecki, 552
U. S. ___, ___ (2008) (slip op., at 8) (quoting Bragdon v. Abbott, 524
U. S. 624, 642 (1998)).
Cite as: 556 U. S. ____ (2009) 9
GINSBURG, J., dissenting
pension benefits, now and in the future, equal to the bene
fits received by others employed for the same length of
time. The actionable conduct of which they complain is
AT&T’s denial of equal benefits to plaintiffs “in the post-
PDA world.” Id., at 667.
Nor does it appear that equal benefits for plaintiffs
during their retirement years would expose AT&T to an
excessive or unmanageable cost. The plaintiffs’ class is
not large; it comprises only women whose pregnancy
leaves predated April 29, 1979 and whose employment
continued long enough for their pensions to vest. The
periods of service involved are short—several weeks or
some months, not years. And the cost of equal treatment
would be spread out over many years, as eligible women
retire.
IV
Certain attitudes about pregnancy and childbirth,
throughout human history, have sustained pervasive,
often law-sanctioned, restrictions on a woman’s place
among paid workers and active citizens. This Court so
recognized in Nevada Dept. of Human Resources v. Hibbs,
538 U. S. 721 (2003). Hibbs rejected challenges, under the
Eleventh and Fourteenth Amendments, to the Family and
Medical Leave Act of 1993, 107 Stat. 6, 29 U. S. C. §2601et seq., as applied to state employees. The Court’s opinion
featured Congress’ recognition that,
“[h]istorically, denial or curtailment of women’s em
ployment opportunities has been traceable directly to
the pervasive presumption that women are mothers
first, and workers second. This prevailing ideology
about women’s roles has in turn justified discrimina
tion against women when they are mothers or moth
ers-to-be.” Joint Hearing before the Subcommittee on
Labor-Management Relations and the Subcommittee
on Labor Standards of the House Committee on Edu
10 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
cation and Labor, 99th Cong., 2d Sess., 100 (1986)
(quoted in Hibbs, 538 U. S., at 736).6
Several of our own decisions, the opinion in Hibbs ac
knowledged, 538 U. S., at 729, exemplified the once “pre
vailing ideology.” As prime illustrations, the Court cited
Bradwell v. State, 16 Wall. 130 (1873);7 Muller v. Oregon,
208 U. S. 412 (1908);8 Goesaert v. Cleary, 335 U. S. 464(1948);9 and Hoyt v. Florida, 368 U. S. 57 (1961).10 The
Hibbs opinion contrasted Muller, Goesaert, and Hoyt with
more recent opinions: Commencing in 1971, the Court had
shown increasing awareness that traditional sex-based
classifications confined or depressed women’s oppor-
tunities. 538 U. S., at 728–730. Representative of the
jurisprudential change, Hibbs cited Reed v. Reed, 404
U. S. 71 (1971);11 Frontiero v. Richardson, 411 U. S. 677——————
6 See also H. R. Rep. No. 95–948, pp. 6–7 (“Women are still subject to
the stereotype that all women are marginal workers. Until a woman
passes the child-bearing age, she is viewed by employers as potentially
pregnant.”).
7 Bradwell upheld a State’s exclusion of women from the practice of
law. In an exorbitant concurring opinion, Justice Bradley wrote that
“the female sex [is] evidently unfi[t] . . . for many of the occupations of
civil life.” 16 Wall., at 141. He elaborated: “The paramount destiny
and mission of woman are to fulfil the noble and benign offices of wife
and mother. This is the law of the Creator.” Ibid.8 Muller upheld a State’s hours-of-work limitation applicable to
women only. “[T]o preserve the strength and vigor of the race,” the
Court observed, “the physical well-being of woman becomes an object of
public interest and care.” 208 U. S., at 421. Cf. Automobile Workers v.
Johnson Controls, Inc., 499 U. S. 187, 211 (1991) (“Concern for a
woman’s existing or potential offspring historically has been the excuse
for denying women equal employment opportunities.”).
9 Goesaert upheld a state law prohibiting women from working as
bartenders (unless the woman’s husband or father owned the tavern).
10 Hoyt sustained a state law exempting all women from the obliga
tion to serve on juries.
11 Reed invalidated a state law that preferred males to females for
appointment as estate administrators.
Cite as: 556 U. S. ____ (2009) 11
GINSBURG, J., dissenting
(1973);12 Craig v. Boren, 429 U. S. 190 (1976);13 and United
States v. Virginia, 518 U. S. 515 (1996).14
Gilbert is aberrational not simply because it placed
outside Title VII disadvantageous treatment of pregnancy
rooted in “stereotype-based beliefs about the allocation of
family duties,” Hibbs, 538 U. S., at 730; Gilbert also ad
vanced the strange notion that a benefits classification
excluding some women (“pregnant women”) is not sex
based because other women are among the favored class
(“nonpregnant persons”).15 The very first Title VII sex
discrimination case heard by the Court, Phillips v. Martin
Marietta Corp., 400 U. S. 542 (1971) (per curiam), how
ever, rejected similar reasoning. At issue in Phillips was
an employer’s refusal to hire mothers of pre-school-age
children. Phillips yielded a per curiam opinion recogniz
ing that Title VII applies to classifications disadvanta
geous to some, but not most, women. See, e.g., Phillips v.
Martin Marietta Corp., 416 F. 2d 1257, 1262 (CA5 1969)
(Brown, C. J., dissenting from denial of en banc review)
(“A mother is still a woman. And if she is denied work
outright because she is a mother, it is because she is a
woman. Congress said that could no longer be done.”);
Sprogis v. United Air Lines, Inc., 444 F. 2d 1194 (CA7)
——————
12 Frontiero extended to married female members of the uniformed
services spousal benefits granted by statute automatically only to male
members.
13 Craig held that young men were entitled to purchase 3.2% beer at
the same age as young women.
14 Virginia, the Court held, could not maintain the Virginia Military
Institute as an all-male college without offering women a genuinely
equal educational opportunity. For a fuller account of the Court’s
decisions on the constitutionality of gender-based classifications, see
Virginia, 518 U. S., at 531–534.
15 The terms “pregnant women” and “nonpregnant persons” first ap
peared in Geduldig, 417 U. S., at 496–497, n. 20. See supra, at 1, n. 1.
Gilbert repeated the terms, quoting the footnote in Geduldig, 429 U. S.,
at 135.
12 AT&T CORP. v. HULTEEN
GINSBURG, J., dissenting
(refusal to employ married women violates Title VII), cert.
denied, 404 U. S. 991 (1971).16
Grasping the connection Gilbert failed to make, a Dis
trict Court opinion pre-Gilbert, Wetzel v. Liberty Mut. Ins.
Co., 372 F. Supp. 1146 (WD Pa. 1974), published this deft
observation. In response to an employer’s argument that
its disadvantageous maternity leave and pregnancy dis
ability income protection policies were not based on sex,
the court commented: “[I]t might appear to the lay mind
that we are treading on the brink of a precipice of absurd
ity. Perhaps the admonition of Professor Thomas Reed
Powell to his law students is apt; ‘If you can think of some
thing which is inextricably related to some other thing and
not think of the other thing, you have a legal mind.’ ” Id.,
at 1157.
Congress put the Court back on track in 1978 when it
amended Title VII to repudiate Gilbert’s holding and
reasoning. See Newport News, 462 U. S., at 678; Califor
nia Fed., 479 U. S., at 284–285; supra, at 4–5.17 Congress’
——————
16 See also the EEOC’s Guideline, initially published in 1965, and now
codified in 29 CFR §1604.4:
“The Commission has determined that an employer’s rule which forbids
or restricts the employment of married women and which is not appli
cable to married men is a discrimination based on sex prohibited by
Title VII of the Civil Rights Act. It does not seem to us relevant that
the rule is not directed against all females, but only against married
females, for so long as sex is a factor in the application of the rule, such
application involves a discrimination based on sex.” 30 Fed. Reg. 14928(1965).
17 For critical commentary on Gilbert and its forerunner, Geduldig v.
Aiello, see, e.g., Bartlett, Pregnancy and the Constitution: The Unique
ness Trap, 62 Calif. L. Rev. 1532, 1551–1566 (1974); Eskridge, Amer
ica’s Statutory “constitution,” 41 U. C. D. L. Rev. 1, 39–40, and n. 175
(2007); Karst, The Supreme Court 1976 Term Foreword: Equal Citizen
ship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 54, n. 304
(1977); Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev.
955, 983–984, and nn. 107–109 (1984); Roelofs, Sex Discrimination and
Insurance Planning: The Rights of Pregnant Men and Women Under
Cite as: 556 U. S. ____ (2009) 13
GINSBURG, J., dissenting
swift and strong repudiation of Gilbert, the Court today
holds, does not warrant any redress for the plaintiffs in
this case. They must continue to experience the impact of
their employer’s discriminatory—but, for a short time,
Gilbert-blessed—plan. That outcome is far from inevita
ble. It is at least reasonable to read the PDA to say, from
and after the effective date of the Act, no woman’s pension
payments are to be diminished by the pretense that preg
nancy-based discrimination displays no gender bias.
I would construe the Act to embrace plaintiffs’ com
plaint, and would explicitly overrule Gilbert so that the
decision can generate no more mischief.
* * *
For the reasons stated, I would affirm the Ninth Cir
cuit’s judgment.
——————
General Electric Co. v. Gilbert, 22 St. Louis U. L. J. 101, 120–123
(1978); Schwartz, Equalizing Pregnancy: The Birth of a Super-Statute
33–57 (2005), http://lsr.nellco.org/yale/ylsspps/papers/41 (as visited May
14, 2009, and in Clerk of Court’s case file); Siegel, Reasoning from the
Body: A Historical Perspective on Abortion Regulation and Questions of
Equal Protection, 44 Stan. L. Rev. 261, 268–272 (1992); Siegel, You’ve
Come a Long Way, Baby: Rehnquist’s New Approach to Pregnancy
Discrimination in Hibbs, 58 Stan. L. Rev. 1871, 1873, 1878, 1891–1893
(2006); Taub & Williams, Will Equality Require More Than Assimila
tion, Accommodation or Separation from the Existing Social Structure?,
37 Rutgers L. Rev. 825, 832–836 (1985).