AT & T Case Spotlights Gender Issue for Sotomayor

(WOMENSENEWS)–Court watchers often wonder whether Judge Sonia Sotomayor, President Obama’s Supreme Court nominee, will be much different–judicially speaking–from Justice David Souter if she survives confirmation hearings that start July 13 to fill his seat.

Advocates for women’s financial security have a big hunch that she will.

They point to the High Court’s May 18 7-2 decision in the AT and T case.

Souter, a 69-year-old bachelor who is retiring June 30, took the majority view that employers can pay lower retirement benefits to women who took pregnancy leave before Congress passed the Pregnancy Discrimination Act in 1979 than they pay co-workers who went out on disability during the same period.

He rejected the argument that the Lilly Ledbetter Fair Pay Act, which President Obama signed into law in January, bolstered the women’s claim against AT and T.

What would Sotomayor have done in that case?

A Strong Clue

The answer is not obvious, since Sotomayor’s 380 opinions as a member of the U.S. Court of Appeals for the Second District have provided few clues on how she might rule in gender discrimination cases.

But Christine L. Boyd, a Ph.D. candidate in political science at Washington University in St. Louis, Mo., and Lee Epstein, a professor of law at Northwestern University in Chicago, have written a thesis that provide a strong clue.

After studying the rulings of judges in federal circuit courts between 1995 and 2002, the co-authors found female judges were 10 percent more likely to rule in favor of the party bringing the discrimination claim.

The paper, which won the 2008 Pi Sigma Alpha award for best paper by the Midwest Political Science Association, found no difference in the way female and male judges voted in environmental, disability and capital punishment cases.

However, it did find that the presence of female judges can appreciably affect sex discrimination cases. When men serve with women they are 15 percent more likely to rule in favor of a party alleging discrimination than when they sit with male judges only.

Sotomayor’s experience, as the daughter of a widowed nurse who worked six days a week to support her two children, might make her sensitive to the plight of women like those in the AT and T case, by her own admission.

"Personal experiences affect the facts that judges choose to see," Sotomayor said, in what have become famous remarks at a conference on race and gender at the University of California Berkeley School of Law in Berkeley, California, in 2001.

Comments Under Fire

The comment has drawn fire from some who argue that judges should not exercise "empathy"–the word Obama has injected into the discussion–and restrict their decisions to a close reading of the facts and the law.

The only woman on the Supreme Court since Sandra Day O’Connor retired in 2006, Justice Ruth Bader Ginsburg was one of only two–along with Justice Stephen G. Breyer–who dissented in the AT and T decision.

She argued that the opinion violated the core command of the Pregnancy Discrimination Act, which states that companies may not treat employees differently based on pregnancy or childbirth, including in making current pension calculations. "The women in this action will receive for the rest of their lives, lower pension benefits than colleagues who worked for AT and T no longer than they did," Ginsburg wrote.

Ginsburg also dissented in a 2007 case in which the Supreme Court ruled that Lilly Ledbetter, who had worked at a Goodyear tire factory, could not sue over unequal pay because she had failed to file her complaint in a timely manner.

Ginsburg, a 76-year-old married mother of two, has been a strong supporter of gender equality in the workplace. As the second professor at the Rutgers University Law School in New Brunswick, New Jersey, in the 1970s, she fought for maternity leave rights for school teachers in New Jersey.

Decision Impacts Thousands of Women

The decision affects thousands of women who are near or at retirement age in the telecommunications industry.

"This decision shows that women view issues differently than do men and why we need another woman on the Supreme Court," said Judith E. Kurtz, a San Francisco lawyer who represented the women. "The decision won’t cause the plaintiffs to go on food stamps, but it will affect their quality of life for the rest of their lives because they will have less money to spend each month."

Cindy Hounsell, president of the Women’s Institute for a Secure Retirement, a women’s retirement advisory group based in Washington, D.C., said Ginsburg’s dissent recognized that women who endured unequal treatment in the 1960s and 1970s are being subjected to a second wave of gender discrimination.

"If these women had taken disability leave for knee surgery after a fall, they would have received credit towards their retirement benefits, but because they took time off after pregnancy, they are being penalized today," she said. "Gender discrimination has long-term consequences. On average, a woman who retires at age 65 can expect to live another 19 years, three years longer than a man. Median pension benefits for women over 65 is $8,110 compared to $12,505 for men in the same age group."

"Unless Congress decides to change the law to help these women, there is nothing more that can be done in the courts to ensure that they receive retirement benefits," said Debra Smith, senior staff attorney of the San Francisco-based Equal Rights Advocates, which has fought gender discrimination since 1974.

Smith predicted that gender discrimination cases will continue to be an important issue for the courts. Lawsuits often rise when women discover that other workers at their companies are given leave for illness or to take care of a sick parent and they are not afforded the same benefit for a child.

Sharon Johnson is a New York freelance writer.