The retirement of your (retro) dreams

The high court rules that pregnancy discrimination is A-OK when it comes to pensions.

By Tracy Clark-Flory
Published May 19, 2009 10:36AM (EDT)

Some working women will be sent to their sunny retirement communities with an unwelcome memento from the past. Not a decades-old company coffee mug or embarrassing evidence of Xeroxed high jinks, but rather a retirement check that doesn't credit any maternity leave taken before the 1979 Pregnancy Discrimination Act. In the eyes of our nation's high court, it's rather simple: What's illegal now wasn't illegal then, so tough luck, ladies -- but have fun in Florida or wherever!

In a ruling that could impact thousands of women, the Supreme Court on Monday overturned a lower court decision and rejected a suit by four AT&T Corp. employees to have maternity leave taken more than 30 years ago counted toward their pensions. The court reasoned that the measure, which requires employers to treat maternity leave no differently from disability leave, is not retroactive. What's more, the case far exceeds the statute of limitations.

That is, if the discrimination is seen as starting and ending when AT&T made its pre-1979 benefits plan. The women, however, argued that each pension check they receive amounts to a "fresh act of discrimination." In other words: A payout that relies on a plan that is no longer legal should be ... illegal. Their argument also follows the thinking behind the Lilly Ledbetter Fair Pay Act of 2009, which extends the 180-day statute of limitations for equal-pay suits each time a paycheck is issued.

While the majority of justices didn't see it that way, the ever-reliable Ruth Bader Ginsburg sure did. "Congress intended no continuing reduction of women's compensation, pension benefits included, attributable to their placement on pregnancy leave," she said. Ginsburg, who famously hid her pregnancy with baggy clothing to protect her job at Rutgers Law School, added: "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."

As much as I disagree with the court's ruling, having this 30-year-old time capsule cracked open is a good reminder of how far we've come and, per usual, how far we have yet to go.

Tracy Clark-Flory

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