The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition – pregnancy – from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification . . . . Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups – pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes.
That’s right, kids: under the Constitution pregnancy discrimination is not sex discrimination because there are some women who are not pregnant. Or something like that.
Anyway, Congress tried to change this in 1978. But the more things change with regard to pregnancy discrimination, the more they stay the same. The Supreme Court last week granted cert to hear a pregnancy discrimination case against AT&T. The case — AT&T v. Hulteen — presents the question of whether a corporation is free to count leave taken before the 1978 passage of the PDA against women who continued to work at the company after the PDA’s passage. A summary from Cara:
In the late 1960s/early 1970s, Noreen Hulteen, Eleanora Collet, Linda Porter and Elizabeth Snyder took maternity leave from their jobs at AT&T. Under AT&T rules during this time, pregnancy was considered personal leave, and counted against employees for promotions, vacation, and pensions. Other types of long term sick leave, taken by men or women, were not counted against the employees. This type of discrimination, against only pregnant people, is currently illegal under the Pregnancy Discrimination Act. Today, AT&T is counting the pregnancy leave against these women for purposes of their pensions.
Instead of dropping the case and giving these women the pensions they deserve after careers devoted to the company, AT&T is fighting their female employees all the way to the Supreme Court. And particularly given Ledbetter, I can’t say that I have any confidence in what SCOTUS will do.