Supreme Court Upholds the Pension Gender Gap

| Tue May 19, 2009 4:43 PM EDT

Even at a time when most old people have taken a hit to their retirement income, far more older women than older men are living on the edge of survival. A case before the Supreme Court would have helped a few women to slightly narrow the substantial gap between women and men’s retirement earnings. But the Court, in a  7-2 vote on Monday, decided to let the disparity stand.

Until 1978, it was legal for employers to discriminate on the  basis of preganancy. So women who took pregnancy leaves were in some cases given less credit toward their pensions than people who took leaves for other medical conditions. In the case before the Supreme Court, a group of women who formerly worked for AT&T were suing to have  maternity leaves taken before passage of the 1978 Pregnancy Discrimination Act (PDA) calculated fully into retirement benefits. While a lower court ruled in their favor, the majority on the Supreme Court decided that the law was not meant to be applied retroactively.

But since the pensions in question are being calculated now, long after passage of the PDA, dissenting Justices Ginsberg and Breyer argued that the discrimination is, effectively, taking place now as well. Ginsberg wrote in her dissent that “attitudes about pregnancy and childbirth …have sustained pervasive, often law-sanctioned, restrictions on a woman’s place among paid workers and active citizens.” The women workers, she said:

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will receive, for the rest of their lives, lower pension benefits than colleagues 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 [that discrimination based on pregnancy must end].

The decision ends any chance to remedy just a small part of the equation that leaves older women much poorer than older men in the United States. As the Pension Rights Center’s Women’s Pension Project points out:

Because they generally live longer, earn less, and spend less time in the workforce than men, women are particularly vulnerable to unfair pension policies. Without income from pensions to supplement Social Security, women are much more likely than men to retire into poverty. According to the Congressional Research Service, older women living alone are among the poorest demographic groups in the nation.

The fact that women earn less than men (still 78 cents on the dollar) is one reason why their pensions, 401(k)s, and Social Security benefits are lower; another is the fact that they tend to work fewer years total, which results in large part from taking maternity leave and other kinds of family leave. All this adds up to a big difference in later years: According to the Women’s Pension Project, in 2007, the median annual income for among those 65 and older was $13, 877 for women, and $24,142 for men.

Some 12 percent of women age 65 and over lived in poverty, compared with 6.6 percent of men. As the Women’s Institute for a Secure Retirement (WISER) points out, that figure rises to almost 20 percent for older single women, and 40 percent for older single African American and Latino women. And all of these numbers pre-date the financial meltdown.

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