The 7-2 decision in AT&T Corp. v. Hulteen focuses on the way in which employers calculated the effect of pregnancy leave on pension accruals before passage in 1978 of the Pregnancy Discrimination Act. That law required employers to treat pregnancy leave the same as temporary disability from that point forward, but it was not retroactive. AT&T responded to the law at the time by equalizing treatment of both kinds of leave prospectively, but four employees now say the prior lesser treatment of pregnancy leave amounts to actionable sex and pregnancy discrimination.
Retiring Justice David Souter, writing for the majority, said AT&T's actions were not illegal when done, so cannot now be viewed as discriminatory. The Court's only woman, Justice Ruth Bader Ginsburg, wrote a dissent joined by Justice Stephen Breyer. Ginsburg asserted that AT&T committed a "current violation" of Title VII of the Civil Rights Act "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."
Common sense (and constitutional jurisprudence) explain that retroactively enforcing a law is what's known as an ex post facto law, and is prohibited. Just because you don't like what happened in the past, doesn't mean you get to punish someone (including companies) for doing what was legal at the time.
It's astonishing that pregnancy was once treated under law in such a twisted manner as to punish women for having children while being employed, and that's precisely why the Pregnancy Discrimination Act was written in the first place.
I'm sure that various feminist sites will be screaming that all the men on the court (with the exception of Stephen Breyer) are sexist pigs wanting to keep women barefoot, unemployed and pregnant. Or that this is just the latest example of the court system sticking it to working women (like this one). And while the emotion is understandable, the logic of punishing corporations for following the laws of the times is not--how can we say it? Fair. After all, we're supposed to be concerned about fairness, not constitutional arguments, right?