AT&T CORP. v. HULTEEN et al.

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701 OCTOBER TERM, 2008
Syllabus
AT&T CORP. v. HULTEEN et al.
certiorari to the united states court of appeals for
the ninth circuit
No. 07–543. Argued December 10, 2008—Decided May 18, 2009
Petitioner and its former operating companies (collectively, AT&T) long
based pension calculations on a seniority system that relied on years of
service minus uncredited leave time, giving less retirement credit for
pregnancy absences than for medical leave generally. In response to
the ruling in General Elec. Co. v. Gilbert, 429 U. S. 125, that such differ
ential treatment of pregnancy leave was not sex-based discrimination
prohibited by Title VII of the Civil Rights Act of 1964, Congress added
the Pregnancy Discrimination Act (PDA) to Title VII in 1978 to make
it “clear that it is discriminatory to treat pregnancy-related conditions
less favorably than other medical conditions,” Newport News Shipbuild
ing & Dry Dock Co. v. EEOC, 462 U. S. 669, 684. On the PDA’s effective
date, AT&T replaced its old plan with the Anticipated Disability Plan,
which provided the same service credit for pregnancy leave as for other
disabilities prospectively, but did not make any retroactive adjustments
for the pre-PDA personnel policies. Each of the individual respondents
therefore received less service credit for her pre-PDA pregnancy leave
than she would have for general disability leave, resulting in a reduction
in her total employment term and, consequently, smaller AT&T pen
sions. They, along with their union, also a respondent, filed Equal
Employment Opportunity Commission charges alleging discrimination
based on sex and pregnancy in violation of Title VII. The EEOC is
sued each respondent (collectively, Hulteen) a determination letter find
ing reasonable cause to believe AT&T had discriminated and a right-to
sue letter. Hulteen filed suit in the District Court, which held itself
bound by a Ninth Circuit precedent finding a Title VII violation where
post-PDA retirement eligibility calculations incorporated pre-PDA ac
crual rules that differentiated based on pregnancy. The Circuit
affirmed.
Held: An employer does not necessarily violate the PDA when it pays
pension benefits calculated in part under an accrual rule, applied only
pre-PDA, that gave less retirement credit for pregnancy than for medi
cal leave generally. Because AT&T’s pension payments accord with a
bona fide seniority system’s terms, they are insulated from challenge
under Title VII § 703(h). Pp. 707–716.

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702 AT&T CORP. v. HULTEEN
Syllabus
(a) AT&T’s benefit calculation rule is protected by § 703(h), which pro
vides: “[I]t shall not be an unlawful employment practice for an em
ployer to apply different standards of compensation . . . pursuant to a
bona fide seniority . . . system . . . provided that such differences are
not the result of an intention to discriminate because of . . . sex.” In
Teamsters v. United States, 431 U. S. 324, 356, the Court held that a
pre-Title VII seniority system that disproportionately advantaged
white, as against minority, employees nevertheless exemplified a bona
fide system without any discriminatory terms under § 703(h), where the
discrimination resulted from the employer’s hiring practices and job as
signments. Because AT&T’s system must also be viewed as bona fide,
i. e., as a system having no discriminatory terms, § 703(h) controls the
result here, just as it did in Teamsters. This Court held in Gilbert that
an accrual rule limiting the seniority credit for time taken for pregnancy
leave did not unlawfully discriminate on the basis of sex. As a matter
of law, at that time, “an exclusion of pregnancy from a disability-benefits
plan providing general coverage [was] not a gender-based discrimination
at all.” 429 U. S., at 136. The only way to conclude that § 703(h) does
not protect AT&T’s system would be to read the PDA as applying retro
actively to recharacterize AT&T’s acts as having been illegal when done.
This is not a serious possibility. Generally, there is “a presumption
against retroactivity [unless] Congress itself has affirmatively consid
ered the potential unfairness of retroactive application and determined
that it is an acceptable price to pay for the countervailing benefits.”
Landgraf v. USI Film Products, 511 U. S. 244, 272–273. There is no
such clear intent here. Section 706(e)(2)—which details when “an un
lawful employment practice occurs, with respect to a seniority system
that has been adopted for an intentionally discriminatory purpose”—has
no application because Gilbert unquestionably held that the feature of
AT&T’s seniority system at issue here was not discriminatory when
adopted, let alone intentionally so. Nor can it be argued that because
AT&T could have chosen to give post-PDA credit to pre-PDA pregnancy
leave when Hulteen retired, its failure to do so was facially discrimina
tory at that time. If a choice to rely on a favorable statute turned
every past differentiation into contemporary discrimination, § 703(h)
would never apply. Finally, Bazemore v. Friday, 478 U. S. 385—in
which a pre-Title VII compensation plan giving black employees less
pay than whites was held to violate Title VII on its effective date—is
inapplicable because the Bazemore plan did not involve a seniority sys
tem subject to § 703(h) and the employer there failed to eliminate the
discriminatory practice when Title VII became law. Pp. 707–715.
(b) A recent § 706(e) amendment making it “an unlawful employment
practice . . . when an individual is affected by application of a discrimina

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703 Cite as: 556 U. S. 701 (2009)
Syllabus
tory compensation decision or other practice, including each time . . .
benefits [are] paid, resulting . . . from such a decision,” § 3, 123 Stat. 5–6,
does not help Hulteen. AT&T’s pre-PDA decision not to award Hulteen
service credit for pregnancy leave was not discriminatory, with the con
sequence that Hulteen has not been “affected by application of a discrim
inatory compensation decision or other practice.” Pp. 715–716.
498 F. 3d 1001, reversed.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Stevens, Scalia, Kennedy, Thomas, and Alito, JJ., joined. Ste
vens, J., filed a concurring opinion, post, p. 716. Ginsburg, J., filed a
dissenting opinion, in which Breyer, J., joined, post, p. 717.
Carter G. Phillips argued the cause for petitioner. With
him on the briefs were Joseph R. Guerra, Virginia A. Seitz,
and Edward R. Barillari.
Lisa S. Blatt argued the cause for the United States as
amicus curiae urging reversal. With her on the brief were
former Solicitor General Garre, Acting Assistant Attorney
General Becker, Assistant Attorney General Katsas, Dennis
J. Dimsey, and Dirk C. Phillips.
Kevin K. Russell argued the cause for respondents. With
him on the brief were Judith E. Kurtz, Mary K. O’Melveny,
Noreen Farrell, Debra Smith, Amy Howe, Henry S. Hewitt,
Blythe Mickelson, and Pamela S. Karlan.*
*Briefs of amici curiae urging reversal were filed for the Equal Em
ployment Advisory Council by Rae T. Vann and Ann Elizabeth Reesman;
and for the ERISA Industry Committee by Caroline M. Brown and John
M. Vine.
Briefs of amici curiae urging affirmance were filed for AARP by Jay
E. Sushelsky and Melvin Radowitz; for the Lawyers’ Committee for Civil
Rights Under Law et al. by Eleanor Smith, Audrey Wiggins, Sarah Craw
ford, and Kathryn Kolbert; for the National Employment Lawyers Associ
ation et al. by Charlotte Fishman and Victoria W. Ni; for the National
Women’s Law Center et al. by Melissa Hart, Marcia D. Greenberger, Joce
lyn Samuels, and Dina R. Lassow; and for Caitlin Borgmann et al. by
Suzanne Novak.

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704 AT&T CORP. v. HULTEEN
Opinion of the Court
Justice Souter delivered the opinion of the Court.
The question is whether an employer necessarily violates
the Pregnancy Discrimination Act (PDA), 42 U. S. C.
§ 2000e(k), when it pays pension benefits calculated in part
under an accrual rule, applied only prior to the PDA, that
gave less retirement credit for pregnancy leave than for
medical leave generally. We hold there is no necessary vio
lation; and the benefit calculation rule in this case is part of
a bona fide seniority system under § 703(h) of Title VII of
the Civil Rights Act of 1964, 42 U. S. C. § 2000e–2(h), which
insulates it from challenge.
I
Since 1914, AT&T Corporation (then American Tele
phone & Telegraph Company) and its Bell System Operating
Companies, including Pacific Telephone and Telegraph Com
pany (hereinafter, collectively, AT&T),1 have provided pen
sions and other benefits based on a seniority system that
relies upon an employee’s term of employment, understood
1 In 1982, a consent decree and modified final judgment (MFJ) were en
tered to resolve the Government’s antitrust suit against American Tele
phone & Telegraph Company. The MFJ resulted in the breakup of Amer
ican Telephone & Telegraph and the divestiture of the local Bell System
Operating Companies, including Pacific Telephone and Telegraph Com
pany (PT&T). Many employees of the former Bell System Operating
Companies became employees of the new AT&T Corporation. The Plan
of Reorganization, approved by the United States District Court for the
District of Columbia, United States v. Western Elec. Co., 569 F. Supp. 1057,
aff ’d sub nom. California v. United States, 464 U. S. 1013 (1983), provided
that “all employees will carry with them all pre-divestiture Bell System
service regardless of the organizational unit or corporation by which they
are employed immediately after divestiture.” App. 54. Respondents in
this case were employed at PT&T. After the divestiture of the Bell Oper
ating Companies in 1984, these women became employees of AT&T Cor
poration and their service calculations, as computed by PT&T under its
accrual rules, were carried over to AT&T Corporation.

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Opinion of the Court
as the period of service at the company minus uncredited
leave time.2
In the 1960s and early to mid-1970s, AT&T employees on
“disability” leave got full service credit for the entire periods
of absence, but those who took “personal” leaves of absence
received maximum service credit of 30 days. Leave for
pregnancy was treated as personal, not disability. AT&T al
tered this practice in 1977 by adopting its Maternity Pay
ment Plan (MPP), entitling pregnant employees to disability
benefits and service credit for up to six weeks of leave. If
the absence went beyond six weeks, however, it was treated
as personal leave, with no further benefits or credit, whereas
employees out on disability unrelated to pregnancy contin
ued to receive full service credit for the duration of absence.
This differential treatment of pregnancy leave, under both
the pre-1977 plan and the MPP, was lawful: in General Elec.
Co. v. Gilbert, 429 U. S. 125 (1976), this Court concluded
that a disability-benefits plan excluding disabilities related
to pregnancy was not sex-based discrimination within the
meaning of Title VII of the Civil Rights Act of 1964, 78 Stat.
253, as amended, 42 U. S. C. § 2000e et seq.
In 1978, Congress amended Title VII by passing the PDA,
92 Stat. 2076, 42 U. S. C. § 2000e(k), which superseded Gil
bert so as to make it “clear that it is discriminatory to treat
pregnancy-related conditions less favorably than other medi
cal conditions.” Newport News Shipbuilding & Dry Dock
Co. v. EEOC, 462 U. S. 669, 684 (1983). On April 29, 1979,
the effective date of the PDA, AT&T adopted its Anticipated
Disability Plan which replaced the MPP and provided service
credit for pregnancy leave on the same basis as leave taken
for other temporary disabilities. AT&T did not, however,
2 AT&T’s calculation of a term of employment is a more complicated
endeavor, requiring the creation and maintenance of an individual “start
date” for each employee, which is adjusted based on the relevant leave
policy.

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706 AT&T CORP. v. HULTEEN
Opinion of the Court
make any retroactive adjustments to the service credit calcu
lations of women who had been subject to the pre-PDA per
sonnel policies.
Four of those women are named respondents in this case.
Each of them received less service credit for pregnancy leave
than she would have accrued on the same leave for disability:
seven months less for Noreen Hulteen; about six months for
Eleanora Collet; and about two for Elizabeth Snyder and
Linda Porter. Respondents Hulteen, Collet, and Snyder
have retired from AT&T; respondent Porter has yet to. If
her total term of employment had not been decreased due
to her pregnancy leave, each would be entitled to a greater
pension benefit.
Eventually, each of the individual respondents and re
spondent Communications Workers of America (CWA), the
collective-bargaining representative for the majority of
AT&T’s nonmanagement employees, filed charges of discrim
ination with the Equal Employment Opportunity Commis
sion (EEOC), alleging discrimination on the basis of sex and
pregnancy in violation of Title VII. In 1998, the EEOC is
sued a Letter of Determination finding reasonable cause to
believe that AT&T had discriminated against respondent
Hulteen and “a class of other similarly-situated female em
ployees whose adjusted [commencement of service] date has
been used to determine eligibility for a service or disability
pension, the amount of pension benefits, and eligibility for
certain other benefits and programs, including early retire
ment offerings.” App. 54–55. The EEOC issued a notice
of right to sue to each named respondent and the CWA (col
lectively, Hulteen), and Hulteen filed suit in the United
States District Court for the Northern District of California.
On dueling motions for summary judgment, the District
Court held itself bound by a prior Ninth Circuit decision,
Pallas v. Pacific Bell, 940 F. 2d 1324 (1991), which found
a Title VII violation where post-PDA retirement eligibility
calculations incorporated pre-PDA accrual rules that differ

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Opinion of the Court
entiated on the basis of pregnancy. See App. to Pet. for
Cert. 121a–122a. The Circuit, en banc, affirmed and held
that Pallas’s conclusion that “calculation of service credit ex
cluding time spent on pregnancy leave violates Title VII
was, and is, correct.” 498 F. 3d 1001, 1003 (2007).
The Ninth Circuit’s decision directly conflicts with the
holdings of the Sixth and Seventh Circuits that reliance on a
pre-PDA differential accrual rule to determine pension bene
fits does not constitute a current violation of Title VII. See
Ameritech Benefit Plan Comm. v. Communication Workers
of Am., 220 F. 3d 814 (CA7 2000) (finding no actionable Title
VII violation given the existence of a bona fide seniority sys
tem); Leffman v. Sprint Corp., 481 F. 3d 428 (CA6 2007)
(characterizing claim as challenging the continuing effects of
past discrimination rather than alleging a current Title VII
violation). We granted certiorari in order to resolve this
split, 554 U. S. 916 (2008), and now reverse the judgment of
the Ninth Circuit.
II
Title VII makes it an “unlawful employment practice” for
an employer “to discriminate against any individual with re
spect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s . . . sex.” 42
U. S. C. § 2000e–2(a)(1). Generally, a claim under Title VII
must be filed “within one hundred and eighty days after the
alleged unlawful employment practice occurred,” § 2000e–
5(e)(1). In this case, Hulteen has identified the challenged
practice as applying the terms of AT&T’s seniority system
to calculate and pay pension benefits to women who took
pregnancy leaves before April 29, 1979. She says the claim
is timely because the old service credit differential for preg
nancy leave was carried forward through the system’s calcu
lations so as to produce an effect in the amount of the benefit
when payments began.
There is no question that the payment of pension benefits
in this case is a function of a seniority system, given the fact

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Opinion of the Court
that calculating benefits under the pension plan depends in
part on an employee’s term of employment. As we have
said, “[a] ‘seniority system’ is a scheme that, alone or in tan
dem with non-‘seniority’ criteria, allots to employees ever
improving employment rights and benefits as their relative
lengths of pertinent employment increase.” California
Brewers Assn. v. Bryant, 444 U. S. 598, 605–606 (1980) (foot
note omitted). Hulteen is also undoubtedly correct that
AT&T’s personnel policies affecting the calculation of any
employee’s start date should be considered “ancillary rules”
and elements of the system, necessary for it to operate at all,
being rules that “define which passages of time will ‘count’
towards the accrual of seniority and which will not.” Id.,
at 607.
But contrary to Hulteen’s position, establishing the conti
nuity of a seniority system whose results depend in part on
obsolete rules entailing disadvantage to once-pregnant em
ployees does not resolve this case. Although adopting a
service credit rule unfavorable to those out on pregnancy
leave would violate Title VII today, a seniority system does
not necessarily violate the statute when it gives current ef
fect to such rules that operated before the PDA. “[S]enior
ity systems are afforded special treatment under Title VII,”
Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 81
(1977), reflecting Congress’s understanding that their stabil
ity is valuable in its own right. Hence, § 703(h):
“Notwithstanding any other provision of this subchap
ter, it shall not be an unlawful employment practice for
an employer to apply different standards of compensa
tion, or different terms, conditions, or privileges of em
ployment pursuant to a bona fide seniority . . . system
. . . provided that such differences are not the result
of an intention to discriminate because of race, color,
religion, sex, or national origin . . . .” 42 U. S. C.
§ 2000e–2(h).

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Opinion of the Court
Benefit differentials produced by a bona fide seniority-based
pension plan are permitted unless they are “the result of an
intention to discriminate.” Ibid.3
In Teamsters v. United States, 431 U. S. 324 (1977), ad
vantages of a seniority system flowed disproportionately to
white, as against minority, employees, because of an employ
er’s prior discrimination in job assignments. We recognized
that this “disproportionate distribution of advantages does
in a very real sense operate to freeze the status quo of prior
3 Section 701(k) of Title VII provides that “women affected by preg
nancy . . . shall be treated the same for all employment-related purposes,
including receipt of benefits under fringe benefit programs, as other per
sons not so affected but similar in their ability or inability to work, and
nothing in section [703(h)] of this title shall be interpreted to permit other
wise.” 42 U. S. C. § 2000e(k). Hulteen contends that, in light of this lan
guage, § 703(h) does not apply at all to claims of fringe-benefit discrimina
tion under the PDA. We cannot agree. Hulteen’s reading would result
in the odd scenario that pregnancy discrimination, alone among all catego
ries of discrimination (race, color, religion, other sex-based claims, and
national origin), would receive dispensation from the general application
of subsection (h).
A better explanation is that § 701(k) refers only to the final sentence of
§ 703(h), which reads that “[i]t shall not be an unlawful employment prac
tice under this subchapter for any employer to differentiate upon the basis
of sex in determining the amount of the wages or compensation paid or to
be paid to employees of such employer if such differentiation is authorized
by the provisions of section 206(d) of title 29.” 42 U. S. C. § 2000e–2(h).
This final sentence of subsection (h), referred to as the Bennett Amend
ment, served to reconcile the Equal Pay Act of 1963, 77 Stat. 56, 29 U. S. C.
§ 206(d), with Title VII. See County of Washington v. Gunther, 452 U. S.
161, 194 (1981) (Rehnquist, J., dissenting). In General Elec. Co. v. Gilbert,
429 U. S. 125 (1976), this Court had concluded that the amendment permit
ted wage discrimination based on pregnancy. Id., at 144–145. By adding
the language, “nothing in section [703(h)] of this title shall be interpreted
to permit otherwise,” to the PDA, 42 U. S. C. § 2000e(k), Congress wanted
to ensure that, in addition to replacing Gilbert with a rule that discrim
ination on the basis of pregnancy is sex discrimination, it foreclosed the
possibility that this Court’s interpretation of the Bennett Amendment
could be construed, going forward, to permit wage discrimination based
on pregnancy.

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Opinion of the Court
discriminatory employment practices[, b]ut both the literal
terms of § 703(h) and the legislative history of Title VII dem
onstrate that Congress considered this very effect of many
seniority systems and extended a measure of immunity
to them.” Id., at 350 (internal quotation marks omitted).
“[T]he unmistakable purpose of § 703(h) was to make clear
that the routine application of a bona fide seniority system
would not be unlawful under Title VII.” Id., at 352. The
seniority system in Teamsters exemplified a bona fide system
without any discriminatory terms (the discrimination having
occurred in executive action hiring employees and assigning
jobs), so that the Court could conclude that the system “did
not have its genesis in . . . discrimination, and . . . has been
maintained free from any illegal purpose.” Id., at 356.
AT&T’s system must also be viewed as bona fide, that is,
as a system that has no discriminatory terms, with the conse
quence that subsection (h) controls the result here, just as in
Teamsters. It is true that in this case the pre-April 29,
1979, rule of differential treatment was an element of the
seniority system itself; but it did not taint the system under
the terms of subsection (h), because this Court held in Gil
bert that an accrual rule limiting the seniority credit for time
taken for pregnancy leave did not unlawfully discriminate on
the basis of sex. As a matter of law, at that time, “an exclu
sion of pregnancy from a disability-benefits plan providing
general coverage [was] not a gender-based discrimination at
all.” 429 U. S., at 136.4 Although the PDA would have
4 Gilbert recognized that differential treatment could still represent in
tentionally discriminatory treatment if pretextual, 429 U. S., at 136, and
that a forbidden discriminatory effect could result if a disability-benefits
plan produced overall preferential treatment for one sex, id., at 138. Nei
ther theory is advanced here.
In Nashville Gas Co. v. Satty, 434 U. S. 136 (1977), we reaffirmed our
holding in Gilbert that Title VII “did not require that greater economic
benefits be paid to one sex or the other ‘because of their differing roles in
“the scheme of human existence.” ’ ” Id., at 142 (quoting Gilbert, supra,
at 139, n. 17). But we noted that Gilbert’s holding did not extend to “per

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made it discriminatory to continue the accrual policies of the
old rule, AT&T amended that rule as of the effective date of
the Act, April 29, 1979; the new one, treating pregnancy and
other temporary disabilities the same way, remains a part of
AT&T’s seniority system today.
This account of litigation, legislation, and the evolution of
the system’s terms is the answer to Hulteen’s argument that
Teamsters supports her position. She correctly points out
that a “seniority system that perpetuates the effects of pre-
Act discrimination cannot be bona fide if an intent to discrim
inate entered into its very adoption,” 431 U. S., at 346, n. 28,
and she would characterize AT&T’s seniority system as in
tentionally discriminatory, on the theory that the accrual
rule for pregnancy leave was facially discriminatory from the
start. She claims further support from Automobile Work
ers v. Johnson Controls, Inc., 499 U. S. 187 (1991), in which
we said that “explicit facial discrimination does not depend
on why the employer discriminates but rather on the explicit
terms of the discrimination,” and that such facial discrimina
tion is intentional discrimination even if not based on any
underlying malevolence. Id., at 199. Hulteen accordingly
claims that the superseded differential affecting current ben
efits was, and remains, “discriminatory in precisely the way
the PDA prohibits,” Brief for Respondents 18.
But Automobile Workers is not on point. The policy in
that case, prohibiting women from working in jobs with lead
exposure unless they could show themselves incapable of
childbearing, was put in place after the PDA became law and
under its terms was facially discriminatory. In this case,
however, AT&T’s intent when it adopted the pregnancy
leave rule (before the PDA) was to give differential treat
mit an employer to burden female employees in such a way as to deprive
them of employment opportunities because of their different role.” Satty,
supra, at 142. Cancellation of benefits previously accrued, therefore, was
considered facially violative at the time, but such a situation is not pre
sented here.

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ment that as a matter of law, as Gilbert held, was not
gender-based discrimination. Because AT&T’s differen
tial accrual rule was therefore a permissible differentiation
given the law at the time, there was nothing in the seniority
system at odds with the subsection (h) bona fide require
ment. The consequence is that subsection (h) is as applica
ble here as it was in Teamsters, and the calculations of cred
ited service that determine pensions are the results of a
permissibly different standard under subsection (h) today.5
The only way to conclude here that the subsection would
not support the application of AT&T’s system would be to
read the PDA as applying retroactively to recharacterize the
acts as having been illegal when done, contra Gilbert.6 But
this is not a serious possibility. As we have said:
“Because it accords with widely held intuitions about
how statutes ordinarily operate, a presumption against
retroactivity will generally coincide with legislative and
public expectations. Requiring clear intent assures
that Congress itself has affirmatively considered the po
tential unfairness of retroactive application and deter
mined that it is an acceptable price to pay for the coun
5 Although certain Courts of Appeals had previously concluded that
treating pregnancy leave less favorably than other disability leave consti
tuted sex discrimination under Title VII, this Court in Gilbert clearly
rejected that conclusion, 429 U. S., at 147 (Brennan, J., dissenting); see also
id., at 162 (Stevens, J., dissenting). Gilbert declared the meaning and
scope of sex discrimination under Title VII and held that previous views
to the contrary were wrong as a matter of law. And “[a] judicial construc
tion of a statute is an authoritative statement of what the statute meant
before as well as after the decision of the case giving rise to that construc
tion.” Rivers v. Roadway Express, Inc., 511 U. S. 298, 312–313 (1994);
see also id., at 313, n. 12. It is therefore to no avail to argue that the
pregnancy leave cap was unlawful before Gilbert and that the PDA re
turned the law to its prior state.
6 In so saying, we assume that § 701(k) has no application, as explained
in footnote 3, supra. Cf. post, at 720–721 (Ginsburg, J., dissenting).

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tervailing benefits.” Landgraf v. USI Film Products,
511 U. S. 244, 272–273 (1994).
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. Congress provided for the
PDA to take effect on the date of enactment, except in its
application to certain benefit programs, as to which effective
ness was held back 180 days. Act of Oct. 31, 1978, § 2(b),
92 Stat. 2076, note following 42 U. S. C. § 2000e(k) (1976 ed.,
Supp. III). The House Report adverted to these benefit
schemes:
“As the Gilbert decision permits employers to exclude
pregnancy-related coverage from employee benefit
plans, [the bill] provides for [a] transition period of 180
days to allow employees [sic] to comply with the explicit
provisions of this amendment. It is the committee’s in
tention to provide for an orderly and equitable transi
tion, with the least disruption for employers and em
ployees, consistent with the purposes of the bill.” H. R.
Rep. No. 95–948, p. 8 (1978).
This is the language of prospective intent, not retrospective
revision.
Hulteen argues that she nonetheless has a challenge to
AT&T’s current payment of pension benefits under § 706(e)(2)
of Title VII, believing (again mistakenly) that this subsection
affects the validity of any arrangement predating the PDA
that would be facially discriminatory if instituted today.
Brief for Respondents 27–29. Section 706(e)(2) provides
that
“an unlawful employment practice occurs, with respect
to a seniority system that has been adopted for an inten
tionally discriminatory purpose in violation of this sub
chapter (whether or not that discriminatory purpose is
apparent on the face of the seniority provision), when

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714 AT&T CORP. v. HULTEEN
Opinion of the Court
the seniority system is adopted, when an individual be
comes subject to the seniority system, or when a person
aggrieved is injured by the application of the senior
ity system or provision of the system.” 42 U. S. C.
§ 2000e–5(e)(2).
But, as the text makes clear, this subsection determines the
moments at which a seniority system violates Title VII only
if it is a system “adopted for an intentionally discriminatory
purpose in violation of this subchapter. ” As discussed
above, the Court has unquestionably held that the feature of
AT&T’s seniority system at issue was not discriminatory
when adopted, let alone intentionally so in violation of this
subchapter. That leaves § 706(e)(2) without any application
here.
It is equally unsound for Hulteen to argue that when she
retired AT&T could have chosen to give post-PDA credit to
pre-PDA pregnancy leave, making its failure to do so facially
discriminatory at that time.7 If a choice to rely on a favor
able statute turned every past differentiation into contempo
rary discrimination, subsection (h) would never apply.
Hulteen’s remaining argument (as of the time the case was
submitted to us) is that our decision in Bazemore v. Friday,
478 U. S. 385 (1986) (per curiam), is on her side. In Baze
more, black employees of the North Carolina Agricultural
Extension Service, who received less pay than comparable
whites under a differential compensation plan extending
back to pre-Title VII segregation, brought suit in 1971 claim
ing that pay disparities persisted. Id., at 389–391 (Brennan,
J., concurring in part). We concluded that “[a] pattern or
practice that would have constituted a violation of Title VII,
but for the fact that the statute had not yet become effective,
7 To the extent Hulteen means to claim, as a factual matter, that the
accrual rule was merely advisory, requiring a fresh choice to apply it in
the benefit context, she points to nothing in the record supporting such
a proposition.

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Opinion of the Court
became a violation upon Title VII’s effective date, and to the
extent an employer continued to engage in that act or prac
tice, it is liable under that statute.” Id., at 395.
Bazemore has nothing to say here. To begin with, it did
not involve a seniority system subject to subsection (h);
rather, the employer in Bazemore had a racially based pay
structure under which black employees were paid less than
white employees. Further, after Title VII became law, the
employer failed to eliminate the discriminatory practice,
even though the new statute had turned what once was
legally permissible into something unlawful. Bazemore
would be on point only if, after the PDA, AT&T continued to
apply an unfavorable credit differential for pregnancy leave
simply because it had begun to do that before the PDA.
AT&T’s system, by contrast, provides future benefits based
on past, completed events, that were entirely lawful at the
time they occurred.
III
We have accepted supplemental briefing after the argu
ment on the possible effect on this case of the recent amend
ment to § 706(e) of Title VII, adopted in response to Ledbet
ter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007), and
dealing specifically with discrimination in compensation:
“For purposes of this section, an unlawful employment
practice occurs, with respect to discrimination in com
pensation in violation of this title, when a discriminatory
compensation decision or other practice is adopted, when
an individual becomes subject to a discriminatory com
pensation decision or other practice, or when an individ
ual is affected by application of a discriminatory com
pensation decision or other practice, including each time
wages, benefits, or other compensation is paid, resulting
in whole or in part from such a decision or other prac
tice.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L.
111–2, § 3, 123 Stat. 5–6.

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716 AT&T CORP. v. HULTEEN
Stevens, J., concurring
Hulteen argues that payment of the pension benefits at issue
in this case marks the moment at which she “is affected by
application of a discriminatory compensation decision or
other practice,” and she reads the statute as providing that
such a “decision or other practice” may not be applied to
her disadvantage.
But the answer to this claim is essentially the same as
the answer to Hulteen’s argument that § 706(e)(2) helps her,
supra, at 713–714. For the reasons already discussed,
AT&T’s pre-PDA decision not to award Hulteen service
credit for pregnancy leave was not discriminatory, with the
consequence that Hulteen has not been “affected by applica
tion of a discriminatory compensation decision or other prac
tice.” § 3, 123 Stat. 6.
IV
Bona fide seniority systems allow, among other things, for
predictable financial consequences, both for the employer
who pays the bill and for the employee who gets the benefit.
Cf. Central Laborers’ Pension Fund v. Heinz, 541 U. S. 739,
743 (2004) (noting that the central feature of the Employee
Retirement Income Security Act of 1974, 29 U. S. C. § 1001
et seq., is its “object of protecting employees’ justified expec
tations of receiving the benefits their employers promise
them”). As § 703(h) demonstrates, Congress recognized the
salience of these reliance interests and, where not based
upon or resulting from an intention to discriminate, gave
them protection. Because the seniority system run by
AT&T is bona fide, the judgment of the Court of Appeals for
the Ninth Circuit is reversed.
It is so ordered.
Justice Stevens, concurring.
Today my appraisal of the Court’s decision in General
Elec. Co. v. Gilbert, 429 U. S. 125 (1976), is the same as that
expressed more than 30 years ago in my dissent. I there
fore agree with much of what Justice Ginsburg has to say

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717 Cite as: 556 U. S. 701 (2009)
Ginsburg, J., dissenting
in this case. Nevertheless, I must accept Gilbert’s interpre
tation of Title VII as having been the governing law until
Congress enacted the Pregnancy Discrimination Act. Be
cause this case involves rules that were in force only prior
to that Act, I join the Court’s opinion.
Justice Ginsburg, with whom Justice Breyer joins,
dissenting.
In General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this
Court held that a classification harmful to women based on
pregnancy did not qualify as discrimination “because of . . .
sex” prohibited by Title VII of the Civil Rights Act of 1964.
42 U. S. C. § 2000e–2(a)(1). Exclusion of pregnancy from an
employer’s disability benefits plan, the Court ruled, “is not a
gender-based discrimination at all.” 429 U. S., at 136. See
also id., at 138 (describing G. E.’s plan as “facially nondis
criminatory” and without “any gender-based discriminatory
effect”).1 In dissent, Justice Stevens wondered how the
Court could come to that conclusion, for “it is the capacity to
become pregnant which primarily differentiates the female
from the male.” Id., at 162.
Prior to Gilbert, all Federal Courts of Appeals presented
with the question had determined that pregnancy discrimi
nation violated Title VII.2 Guidelines issued in 1972 by the
1 The Court’s opinion in Gilbert extended to Title VII reasoning earlier
advanced in Geduldig v. Aiello, 417 U. S. 484 (1974). In that case, the
Court upheld against an equal protection challenge California’s disability
insurance system, which excluded coverage for disabilities occasioned by
normal pregnancy. California’s system, the Court noted, did not divide
workers according to their sex; instead, it “divide[d] potential recipients
into two groups—pregnant women and nonpregnant persons.” Id., at
496–497, n. 20.
2 See Communications Workers of America v. AT&T Co., Long Lines
Dept., 513 F. 2d 1024 (CA2 1975); Wetzel v. Liberty Mut. Ins. Co., 511 F. 2d
199 (CA3 1975), vacated on other grounds and remanded, 424 U. S. 737
(1976); Gilbert v. General Elec. Co., 519 F. 2d 661 (CA4 1975), rev’d, 429
U. S. 125 (1976); Satty v. Nashville Gas Co., 522 F. 2d 850 (CA6 1975), aff ’d
in part, vacated in part, and remanded, 434 U. S. 136 (1977); Holthaus v.

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718 AT&T CORP. v. HULTEEN
Ginsburg, J., dissenting
Equal Employment Opportunity Commission (EEOC or
Commission) declared that disadvantageous classifications of
employees based on pregnancy-related conditions are “in
prima facie violation of title VII.” 37 Fed. Reg. 6837. In
terms closely resembling the EEOC’s current Guideline, see
29 CFR § 1604.10 (2008), the Commission counseled:
“Written and unwritten employment policies and prac
tices involving . . . the accrual of seniority and other
benefits and privileges . . . shall be applied to disability
due to pregnancy or childbirth on the same terms and
conditions as they are applied to other temporary disa
bilities.” 37 Fed. Reg. 6837.
The history of women in the paid labor force underpinned
and corroborated the views of the lower courts and the
EEOC. In generations preceding—and lingering long
after—the passage of Title VII, that history demonstrates,
societal attitudes about pregnancy and motherhood severely
impeded women’s employment opportunities. See Molnar,
“Has the Millennium Yet Dawned?”: A History of Attitudes
Toward Pregnant Workers in America, 12 Mich. J. Gender &
L. 163, 170–176 (2005); S. Kamerman, A. Kahn, & P. Kings
ton, Maternity Policies and Working Women 32–38 (1983).
Compton & Sons, Inc., 514 F. 2d 651 (CA8 1975); Berg v. Richmond Uni
fied School Dist., 528 F. 2d 1208 (CA9 1975); Hutchison v. Lake Oswego
School Dist. No. 7, 519 F. 2d 961 (CA9 1975).
For decisions under state human rights laws to the same effect, see,
e. g., Brooklyn Union Gas Co. v. New York State Human Rights Appeal
Bd., 41 N. Y. 2d 84, 359 N. E. 2d 393 (1976); Anderson v. Upper Bucks Cty.
Area Vocational Technical School, 30 Pa. Commw. 103, 373 A. 2d 126
(1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm’n, 268
N. W. 2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts
Comm’n Against Discrimination, 375 Mass. 160, 375 N. E. 2d 1192 (1978);
Minnesota Min. & Mfg. Co. v. State, 289 N. W. 2d 396 (Minn. 1979); Michi
gan Dept. of Civil Rights ex rel. Jones v. Michigan Dept. of Civil Serv.,
101 Mich. App. 295, 301 N. W. 2d 12 (1980); Badih v. Myers, 36 Cal. App.
4th 1289, 43 Cal. Rptr. 2d 229 (1995).

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Ginsburg, J., dissenting
Congress swiftly reacted to the Gilbert decision. Less
than two years after the Court’s ruling, Congress passed the
Pregnancy Discrimination Act of 1978 (PDA or Act) to over
turn Gilbert and make plain the legislators’ clear under
standing that discrimination based on pregnancy is discrimi
nation against women.3 The Act amended Title VII to
require that women affected by pregnancy “be treated the
same for all employment-related purposes, including receipt
of benefits under fringe benefit programs, as other persons
not so affected but similar in their ability or inability to
work.” 42 U. S. C. § 2000e(k).
The PDA does not require redress for past discrimination.
It does not oblige employers to make women whole for the
compensation denied them when, prior to the Act, they were
placed on pregnancy leave, often while still ready, willing,
and able to work, and with no secure right to return to their
jobs after childbirth.4 But the PDA does protect women,
from and after April 1979, when the Act became fully effec
tive, against repetition or continuation of pregnancy-based
disadvantageous treatment.
Congress interred Gilbert more than 30 years ago, but the
Court today allows that wrong decision still to hold sway.
3 See, e. g., H. R. Rep. No. 95–948, p. 3 (1978) (“[T]he assumption that
women will become pregnant and leave the labor force . . . is at the root
of the discriminatory practices which keep women in low-paying and
dead-end jobs.”).
4 For examples of once prevalent restrictions, see Turner v. Utah Dept.
of Employment Security, 423 U. S. 44 (1975) (per curiam) (state statute
made pregnant women ineligible for unemployment benefits for a period
extending from 12 weeks before the expected date of childbirth until six
weeks after childbirth); Cleveland Bd. of Ed. v. LaFleur, 414 U. S. 632,
634–635 (1974) (school board rule forced pregnant public school teachers
to take unpaid maternity leave five months before the expected date of
childbirth, with no guarantee of reemployment). Cf. Nevada Dept. of
Human Resources v. Hibbs, 538 U. S. 721, 736–737 (2003) (sex discrimina
tion, Congress recognized, is rooted, primarily, in stereotypes about
“women when they are mothers or mothers-to-be” (internal quotation
marks omitted)).

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720 AT&T CORP. v. HULTEEN
Ginsburg, J., dissenting
The plaintiffs (now respondents) in this action will receive,
for the rest of their lives, lower pension benefits than col
leagues who worked for AT&T no longer than they did.
They will experience this discrimination not simply because
of the adverse action to which they were subjected pre-PDA.
Rather, they are harmed today because AT&T has refused
fully to heed the PDA’s core command: Hereafter, for “all
employment-related purposes,” disadvantageous treatment
“on the basis of pregnancy, childbirth, or related medical con
ditions” must cease. 42 U. S. C. § 2000e(k) (emphasis added).
I would hold that AT&T committed a current violation of
Title VII when, post-PDA, it did not totally discontinue reli
ance upon a pension calculation premised on the notion that
pregnancy-based classifications display no gender bias.
I
Enacted as an addition to the section defining terms used
in Title VII, the PDA provides:
“The terms ‘because of sex’ or ‘on the basis of sex’
include, but are not limited to, because of or on the basis
of pregnancy, childbirth, or related medical conditions;
and women affected by pregnancy, childbirth, or related
medical conditions shall be treated the same for all
employment-related purposes, including receipt of bene
fits under fringe benefit programs, as other persons not
so affected but similar in their ability or inability to
work . . . .” 42 U. S. C. § 2000e(k).
The text of the Act, this Court has acknowledged, “unambig
uously expressed [Congress’] disapproval of both the holding
and the reasoning of the Court in the Gilbert decision.”
Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462
U. S. 669, 678 (1983). “Proponents of the [PDA],” the Court
observed, “repeatedly emphasized that the Supreme Court
had erroneously interpreted congressional intent and that
amending legislation was necessary to reestablish the princi

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721 Cite as: 556 U. S. 701 (2009)
Ginsburg, J., dissenting
ples of Title VII law as they had been understood prior to
the Gilbert decision.” Id., at 679. See also California Fed.
Sav. & Loan Assn. v. Guerra, 479 U. S. 272, 284–285 (1987)
(explaining that “the first clause of the PDA reflects Con
gress’ disapproval of the reasoning in Gilbert,” while “the
second clause . . . illustrate[s] how discrimination against
pregnancy is to be remedied”). Cf. Newport News, 462 U. S.,
at 694 (Rehnquist, J., dissenting) (criticizing the Court for
concluding that the PDA “renders all of Gilbert obsolete”).
Today’s case presents a question of time. As the Court
comprehends the PDA, even after the effective date of the
Act, lower pension benefits perpetually can be paid to women
whose pregnancy leaves predated the PDA. As to those
women, the Court reasons, the disadvantageous treatment
remains as Gilbert declared it to be: “facially nondiscrimina
tory,” and without “any gender-based discriminatory effect,”
429 U. S., at 138. See ante, at 710.
There is another way to read the PDA, one better attuned
to Congress’ “unambiguou[s] . . . disapproval of both the hold
ing and the reasoning” in Gilbert. Newport News, 462 U. S.,
at 678. On this reading, the Act calls for an immediate end
to any pretense that classification on the basis of pregnancy
can be “facially nondiscriminatory.” While the PDA does
not reach back to redress discrimination women encountered
before Congress overruled Gilbert, the Act instructs employ
ers forthwith to cease and desist: From and after the PDA’s
effective date, classifications treating pregnancy disadvan
tageously must be recognized, “for all employment-related
purposes,” including pension payments, as discriminatory
both on their face and in their impact. So comprehended,
the PDA requires AT&T to pay Noreen Hulteen and others
similarly situated pension benefits untainted by pregnancy
based discrimination.
II
The Court’s rejection of plaintiffs’ claims to pension bene
fits undiminished by discrimination “because of [their] sex,”

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722 AT&T CORP. v. HULTEEN
Ginsburg, J., dissenting
42 U. S. C. § 2000e–2(h), centers on § 703(h) of Title VII, as
construed by this Court in Teamsters v. United States, 431
U. S. 324 (1977). See ante, at 707–711. Section 703(h) per
mits employers “to apply different standards of compensa
tion . . . pursuant to a bona fide seniority . . . system.” 42
U. S. C. § 2000e–2(h). Congress enacted § 703(h), Teamsters
explained, to “exten[d] a measure of immunity” to seniority
systems even when they “operate to ‘freeze’ the status quo
of prior discriminatory employment practices.” 431 U. S., at
349–350 (quoting Griggs v. Duke Power Co., 401 U. S. 424,
430 (1971)).
Teamsters involved a seniority system attacked under
Title VII as perpetuating race-based discrimination. Mi
nority group members ranked low on the seniority list be
cause, pre-Title VII, they were locked out of the job category
in question. But the seniority system itself, the Court rea
soned, “did not have its genesis in . . . discrimination,” con
tained no discriminatory terms, and applied “equally to all
races and ethnic groups,” 431 U. S., at 355–356. Therefore,
the Court concluded, § 703(h) sheltered the system despite
its adverse impact on minority group members only recently
hired for, or allowed to transfer into, more desirable jobs.
See id., at 356.
This case differs from Teamsters because AT&T’s seniority
system itself was infected by an overt differential. Cf. ante,
at 710 (“[R]ule of differential treatment was an element of
the seniority system itself . . . .”). One could scarcely main
tain that AT&T’s scheme was “neutral on [its] face and in
intent,” discriminating against women only “in effect.” Cf.
Teamsters, 431 U. S., at 349. Surely not a term fairly de
scribed as “equally [applicable] to all,” id., at 355, AT&T’s
prescription regarding pregnancy leave would gain no immu
nity under § 703(h) but for this Court’s astonishing declara
tion in Gilbert: “[E]xclusion of pregnancy from a disability
benefits plan providing general coverage, ” the Court
decreed, “[was] not a gender-based discrimination at all.”
429 U. S., at 136. See ante, at 710 (because of Gilbert,

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723 Cite as: 556 U. S. 701 (2009)
Ginsburg, J., dissenting
AT&T’s disadvantageous treatment of pregnancy leave “did
not taint the system under the terms of [§ 703(h)]”).
Were the PDA an ordinary instance of legislative revision
by Congress in response to this Court’s construction of a
statutory text, I would not dissent from today’s decision.
But Congress made plain its view that Gilbert was not sim
ply wrong about the character of a classification that treats
leave necessitated by pregnancy and childbirth disadvanta
geously. In disregarding the opinions of other courts, see
supra, at 717–718, n. 2, of the agency that superintends en
forcement of Title VII, see supra, at 717–718,5 and, most fun
damentally, the root cause of discrimination against women
in the paid labor force, this Court erred egregiously. Con
gress did not provide a remedy for pregnancy-based discrim
ination already experienced before the PDA became effec
tive. I am persuaded by the Act’s text and legislative
history, however, that Congress intended no continuing re
duction of women’s compensation, pension benefits included,
attributable to their placement on pregnancy leave.
III
A few further considerations influence my dissenting view.
Seeking equal treatment only from and after the PDA’s effec
tive date, plaintiffs present modest claims. As the Court
observes, they seek service credit, for pension benefit pur
poses, for the periods of their pregnancy leaves. For the
named plaintiffs, whose claims are typical, the uncounted
leave days are these: “seven months . . . for Noreen Hulteen;
5 The Equal Employment Opportunity Commission’s (EEOC) current
compliance manual counsels: “While the denial of service credit to women
on maternity leave was not unlawful when [the charging party] took her
leave . . . , the employer’s decision to incorporate that denial of service
credit in calculating seniority [post-PDA] is discriminatory.” 2 EEOC
Compliance Manual § 3, Pt. III(B), p. 627:0023 (effective Oct. 3, 2000).
EEOC compliance manuals, this Court has recognized, “reflect ‘a body of
experience and informed judgment to which courts and litigants may prop
erly resort for guidance.’ ” Federal Express Corp. v. Holowecki, 552 U. S.
389, 399 (2008) (quoting Bragdon v. Abbott, 524 U. S. 624, 642 (1998)).

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724 AT&T CORP. v. HULTEEN
Ginsburg, J., dissenting
about six months for Eleanora Collet; and about two for Eliz
abeth Snyder and Linda Porter.” Ante, at 706. See also
498 F. 3d 1001, 1004 (CA9 2007) (en banc) (case below).
Their demands can be met without disturbing settled expec
tations of other workers, the core concern underlying the
shelter § 703(h) provides for seniority systems. See Franks
v. Bowman Transp. Co., 424 U. S. 747, 766, 773, and n. 33
(1976) (“ ‘benefit’ seniority,” unlike “ ‘competitive status’ se
niority,” does not conflict with economic interests of other
employees).
Furthermore, as Judge Rymer explained in her opinion
dissenting from the Ninth Circuit’s initial panel opinion, 441
F. 3d 653, 665–666 (2006), the relief plaintiffs request is not
retroactive in character. Plaintiffs request no backpay or
other compensation for past injury. They seek pension ben
efits, now and in the future, equal to the benefits received by
others employed for the same length of time. The action
able conduct of which they complain is AT&T’s denial of
equal benefits to plaintiffs “in the post-PDA world.” Id.,
at 667.
Nor does it appear that equal benefits for plaintiffs during
their retirement years would expose AT&T to an excessive
or unmanageable cost. The plaintiffs’ class is not large; it
comprises only women whose pregnancy leaves predated
April 29, 1979 and whose employment continued long enough
for their pensions to vest. The periods of service involved
are short—several weeks or some months, not years. And
the cost of equal treatment would be spread out over many
years, as eligible women retire.
IV
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. This Court so recognized in
Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721
(2003). Hibbs rejected challenges, under the Eleventh and

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Ginsburg, J., dissenting
Fourteenth Amendments, to the Family and Medical Leave
Act of 1993, 107 Stat. 6, 29 U. S. C. § 2601 et seq., as applied
to state employees. The Court’s opinion featured Congress’
recognition that,
“[h]istorically, denial or curtailment of women’s employ
ment opportunities has been traceable directly to the
pervasive presumption that women are mothers first,
and workers second. This prevailing ideology about
women’s roles has in turn justified discrimination
against women when they are mothers or mothers-to
be. ” Joint Hearing before the Subcommittee on
Labor-Management Relations and the Subcommittee on
Labor Standards of the House Committee on Education
and Labor, 99th Cong., 2d Sess., 100 (1986) (quoted in
Hibbs, 538 U. S., at 736).6
Several of our own decisions, the opinion in Hibbs ac
knowledged, 538 U. S., at 729, exemplified the once “prevail
ing ideology.” As prime illustrations, the Court cited Brad
well v. State, 16 Wall. 130 (1873); 7 Muller v. Oregon, 208 U. S.
412 (1908); 8 Goesaert v. Cleary, 335 U. S. 464 (1948); 9 and
6 See also H. R. Rep. No. 95–948, pp. 6–7 (“Women are still subject to
the stereotype that all women are marginal workers. Until a woman
passes the child-bearing age, she is viewed by employers as potentially
pregnant.”).
7 Bradwell upheld a State’s exclusion of women from the practice of law.
In an exorbitant concurring opinion, Justice Bradley wrote that “the fe
male sex [is] evidently unfi[t] . . . for many of the occupations of civil life.”
16 Wall., at 141. He elaborated: “The paramount destiny and mission of
woman are to fulfil the noble and benign offices of wife and mother. This
is the law of the Creator.” Ibid.
8 Muller upheld a State’s hours-of-work limitation applicable to women
only. “[T]o preserve the strength and vigor of the race,” the Court ob
served, “the physical well-being of woman becomes an object of public
interest and care.” 208 U. S., at 421. Cf. Automobile Workers v. John
son Controls, Inc., 499 U. S. 187, 211 (1991) (“Concern for a woman’s exist
ing or potential offspring historically has been the excuse for denying
women equal employment opportunities.”).
9 Goesaert upheld a state law prohibiting women from working as bar
tenders (unless the woman’s husband or father owned the tavern).

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Ginsburg, J., dissenting
Hoyt v. Florida, 368 U. S. 57 (1961).10 The Hibbs opinion
contrasted Muller, Goesaert, and Hoyt with more recent
opinions: Commencing in 1971, the Court had shown increas
ing awareness that traditional sex-based classifications con
fined or depressed women’s opportunities. 538 U. S., at 728–
730. Representative of the jurisprudential change, Hibbs
cited Reed v. Reed, 404 U. S. 71 (1971); 11 Frontiero v. Rich
ardson, 411 U. S. 677 (1973); 12 Craig v. Boren, 429 U. S. 190
(1976); 13 and United States v. Virginia, 518 U. S. 515 (1996).14
Gilbert is aberrational not simply because it placed outside
Title VII disadvantageous treatment of pregnancy rooted in
“stereotype-based beliefs about the allocation of family du
ties,” Hibbs, 538 U. S., at 730; Gilbert also advanced the
strange notion that a benefits classification excluding some
women (“pregnant women”) is not sex based because other
women are among the favored class (“nonpregnant per
sons”).15 The very first Title VII sex-discrimination case
heard by the Court, Phillips v. Martin Marietta Corp., 400
U. S. 542 (1971) (per curiam), however, rejected similar rea
soning. At issue in Phillips was an employer’s refusal to
10 Hoyt sustained a state law exempting all women from the obligation
to serve on juries.
11 Reed invalidated a state law that preferred males to females for ap
pointment as estate administrators.
12 Frontiero extended to married female members of the uniformed
services spousal benefits granted by statute automatically only to male
members.
13 Craig held that young men were entitled to purchase 3.2% beer at the
same age as young women.
14 Virginia, the Court held, could not maintain the Virginia Military In
stitute as an all-male college without offering women a genuinely equal
educational opportunity. For a fuller account of the Court’s decisions on
the constitutionality of gender-based classifications, see Virginia, 518
U. S., at 531–534.
15 The terms “pregnant women” and “nonpregnant persons” first ap
peared in Geduldig, 417 U. S., at 496–497, n. 20. See supra, at 717, n. 1.
Gilbert repeated the terms, quoting the footnote in Geduldig, 429 U. S.,
at 135.

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Ginsburg, J., dissenting
hire mothers of pre-school-age children. Phillips yielded a
per curiam opinion recognizing that Title VII applies to clas
sifications disadvantageous to some, but not most, women.
See, e. g., Phillips v. Martin Marietta Corp., 416 F. 2d 1257,
1262 (CA5 1969) (Brown, C. J., dissenting from denial of en
banc review) (“A mother is still a woman. And if she is de
nied work outright because she is a mother, it is because she
is a woman. Congress said that could no longer be done.”);
Sprogis v. United Air Lines, Inc., 444 F. 2d 1194 (CA7) (re
fusal to employ married women violates Title VII), cert. de
nied, 404 U. S. 991 (1971).16
Grasping the connection Gilbert failed to make, a District
Court opinion pre-Gilbert, Wetzel v. Liberty Mut. Ins. Co.,
372 F. Supp. 1146 (WD Pa. 1974), published this deft observa
tion. In response to an employer’s argument that its disad
vantageous maternity leave and pregnancy disability income
protection policies were not based on sex, the court com
mented: “[I]t might appear to the lay mind that we are tread
ing on the brink of a precipice of absurdity. Perhaps the
admonition of Professor Thomas Reed Powell to his law stu
dents is apt; ‘If you can think of something which is inextri
cably related to some other thing and not think of the other
thing, you have a legal mind.’ ” Id., at 1157.
Congress put the Court back on track in 1978 when it
amended Title VII to repudiate Gilbert’s holding and reason
ing. See Newport News, 462 U. S., at 678; California Fed.,
16 See also the EEOC’s Guideline, initially published in 1965, and now
codified in 29 CFR § 1604.4 (2008):
“The Commission has determined that an employer’s rule which forbids
or restricts the employment of married women and which is not applicable
to married men is a discrimination based on sex prohibited by Title VII
of the Civil Rights Act. It does not seem to us relevant that the rule is
not directed against all females, but only against married females, for so
long as sex is a factor in the application of the rule, such application in
volves a discrimination based on sex.” 30 Fed. Reg. 14928 (1965).

556US2 Unit: $U57 [04-08-14 15:16:22] PAGES PGT: OPIN
728 AT&T CORP. v. HULTEEN
Ginsburg, J., dissenting
479 U. S., at 284–285; supra, at 720–721.17 Congress’ swift
and strong repudiation of Gilbert, the Court today holds,
does not warrant any redress for the plaintiffs in this case.
They must continue to experience the impact of their em
ployer’s discriminatory—but, for a short time, Gilbert
blessed—plan. That outcome is far from inevitable. It is
at least reasonable to read the PDA to say, from and after
the effective date of the Act, no woman’s pension payments
are to be diminished by the pretense that pregnancy-based
discrimination displays no gender bias.
I would construe the Act to embrace plaintiffs’ complaint,
and would explicitly overrule Gilbert so that the decision can
generate no more mischief.
* * *
For the reasons stated, I would affirm the Ninth Circuit’s
judgment.
17 For critical commentary on Gilbert and its forerunner, Geduldig v.
Aiello, see, e. g., Bartlett, Pregnancy and the Constitution: The Unique
ness Trap, 62 Calif. L. Rev. 1532, 1551–1566 (1974); Eskridge, America’s
Statutory “constitution,” 41 U. C. D. L. Rev. 1, 39–40, and n. 175 (2007);
Karst, The Supreme Court 1976 Term Foreword: Equal Citizenship Under
the Fourteenth Amendment, 91 Harv. L. Rev. 1, 54, n. 304 (1977); Law,
Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 983–984, and
nn. 107–109 (1984); Roelofs, Sex Discrimination and Insurance Planning:
The Rights of Pregnant Men and Women Under General Electric Co. v.
Gilbert, 22 St. Louis U. L. J. 101, 120–123 (1978); Schwartz, Equalizing
Pregnancy: The Birth of a Super-Statute 33–57 (2005), http://lsr.nellco.org/
yale/ylsspps/papers/41 (as visited May 14, 2009, and in Clerk of Court’s
case file); Siegel, Reasoning From the Body: A Historical Perspective on
Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev.
261, 268–272 (1992); Siegel, You’ve Come a Long Way, Baby: Rehnquist’s
New Approach to Pregnancy Discrimination in Hibbs, 58 Stan. L. Rev.
1871, 1873, 1878, 1891–1893 (2006); Taub & Williams, Will Equality Require
More Than Assimilation, Accommodation or Separation From the Existing
Social Structure? 37 Rutgers L. Rev. 825, 832–836 (1985).