SCOTUS: Pregnancy Payment Not Retroactive

By Jonathan Bronstein, Talk Radio News Service

Global telecommunication corporation AT&T’s pension policy before 1978 was a seniority system, which was achieved through years of service, but women were precluded from gaining as much seniority as their male counterparts because of the time they took on pregnancy leave.

In 1978 Congress passed the Pregnancy Discrimination Act of 1978, and AT&T complied with this new ruling, and adjusted their pension policy accordingly.

After this law came into effect, the question arose as to whether women who already retired would benefit from this new calculation.

Today, in a 7-2 decision, the Supreme Court decided the Title VII, which prevents pregnancy discrimination, does not require AT&T to recalculate the pensions, so AT&T was within its rights to not retroactively pay employees for their loss of pay.

Justice David Souter wrote the majority opinion, and in regard to Title VII, “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.”

Justices Ruth Bader Ginsberg and John Paul Stevens dissented. Ginsberg wrote that “AT&T committed a current violation of Title VII when it did not totally discontinue reliance upon a pension calculation premised on the notion that pregnancy-based classification display no gender bias.”

Supreme Court: Either Way New Haven Will Be Sued

by Christina Lovato, University of New Mexico-Talk Radio News Service

In 2003, the New Haven, Connecticut, Fire Department administered written and oral exams to determine which employees would be eligible for promotions to lieutenant and captain; there were seven captain and eight lieutenant vacancies, but despite those who passed, no one moved up.

Of the 41 applicants who took the captain exam, the top nine scorers included seven whites and two Hispanics, and of the 77 applicants who took the lieutenant exam, the top 10 scorers where white.

After the Civil Service Board discovered from the scores that no black employees and only two Hispanics passed the test, they determined that the results had produced a significant disparate impact and chose to not certify the results.

The only information provided to the firefighters and public were the scores, given by race and gender. Test-takers did not receive their individual scores.

Seventeen white candidates and one Hispanic candidate who had taken the exams filed a lawsuit in federal court against the City of New Haven, the mayor, and other city executives.

Frank Ricci, a firefighter who took the exam stated that the questions on the test were drawn from “nationally recognized” books and believes the test was fair, and therefore the city should honor the results.

Part of Ricci’s case is that before throwing out the results the city should at least have to consider whether the exam was fair.

In the Supreme Court today the justices expressed concern over the bind that New Haven is facing: because the city didn’t use the results, they were sued for reverse discrimination, but if the city had used the results, they could have faced a lawsuit for discrimination.

Justice Souter expressed this dilemma by saying “You’re damned if you do, damned if you don’t.”

The decision in the case of Ricci vs. DeStefano is expected in May.

Dept. of Justice disgraced by hiring discrimination

The Senate Judiciary Committee discussed a report on politicized hiring at the Department of Justice in favor of conservative candidates. Senator Patrick Leahy (D-Vt.) said the report realizes his worst fears - pervasive partisan hiring in the Department of Justice.

Glenn Fine, the Inspector General for the U.S. Department of Justice, said his investigation revealed that qualified candidates for hire at the Department were deselected because of liberal political beliefs. Politically conservative or neutral, yet under-qualified and junior applicants, were preferred. Fine said Monica Goodling, the Department’s former White House Liaison, regularly considered political affiliations in making hiring decisions.

Fine said the discrimination performed by Goodling and others in the Department violated the Constitution and civil law, but not criminal law, therefore criminal prosecution is not possible. But, Fine said the actions of those transgressors were revealed, and they have since left the Department so disciplinary actions are impossible as well.

Fine said inadequate supervision of the Department’s hiring practices led to the discrimination and as a result inexperienced candidates were hired into not only intern positions, but career positions as well. Senator Charles Schumer (D-NY) called the details of the report a “despicable” and “beyond disgraceful.” Senator Sheldon Whitehouse (D-RI) said he was disturbed that the Department of Justice had become so tainted.

Supreme Court today

There were 5 opinions issued, and the Court heard argument in one case.



The first significant ruling was in Riegel v. Medtronic. The FDA regulated medical devices under the Medical Device Amendments of 1976, and Class 3 devices are given the most scrutiny and must be approved before being sold. During heart surgery, a Medtronic catheter ruptured in Charles Riegel's coronary artery. He (and later his widow) sued, claiming that the Medtronic catheter did not meet New York state regulations on design, labeling, and manufacturing of medical devices. The Supreme Court, in an 8-1 ruling, said that the federal law preempts the state law. The majority opinion was written by Justice Scalia. Justice Ginsburg dissented.

The second significant ruling was in LaRue v. DeWolff. LaRue had put money into his pension plan, which allowed him to direct where the money was invested. The pension plan administrator failed to follow those instructions, and LaRue lost about $150,000. LaRue sued under the Employee Retirement Income Security Act, saying the plan administrator had breached a fiduciary duty. The lower court had held that that law only allowed suits when everyone on a plan lost money, but the Supreme Court reversed, saying individuals could sue. Justice Stevens wrote the opinion for a unanimous court.

The last significant ruling was in Danforth v. Minnesota. In 2004 the Supreme Court issued new rules for testimony at trials. Danforth claimed that the videotaped testimony of his 6-year-old rape victim violated those rules. The new rules had been issued after Danforth's trial, so there was a question of whether he could have any relief under the new rules. The Minnesota Supreme Court read US Supreme Court precedent as saying it did not have the power to apply the new rules to the old case, but the Supreme Court today said that state courts do have that power and can choose to apply new rules retroactively.

The case argued today was CBOCS v. Humphries. Mr. Humphries was fired after he complained about racial discrimination by his manager at Cracker Barrel. Normally a suit like this would be brought under Title VII, but Humphries missed the statute of limitations for that law. Instead, he claimed relief under 42 U.S.C. § 1981. Section 1981 says that everyone has the same rights to "make and enforce contracts," regardless of race. The Supreme Court expanded that law to include protection from things like discrimination during employment. However, Crack Barrel argued that Humphries was fired for complaining, not because of his race, and that retaliation for complaints was not covered under the law.

Cracker Barrel's argument that the law simply does not say anything about retaliation seemed to be accepted by at Justices Scalia, Kennedy, and Roberts, and Justice Thomas is likely to agree. Humphries argued, however, that it is not reasonable to tell people they can complain about discrimination if they can legally be fired for making that complaint, and Justices Breyer and Ginsburg seemed to accept that argument. I expect Justices Stevens and Souter to go along with Justice Breyer, and Alito to go along with Justice Scalia, leaving a 5-4 ruling against Humphries.

Some humor was provided during Solicitor General Clement's argument. Clement, representing the government's position, supported Humphries. Justice Scalia was asking him about implied rights of action: when Congress passes a law (such as this one) that simply states that people have a right to something, there is a question about whether that law implies that someone can sue over violations of that right. The Supreme Court used to be very willing to find such implied rights of action, but they have recently stopped doing so. Justice Scalia, calling the time when the Court found implied rights of action "the bad old days," asked Solicitor General Clement when they ended. Clement responded, "The bad old days ended when you got on the Court."