The Supreme Court recently held in AT&T Corp. v. Hulteen, that a pension plan which relied on years of service, minus unaccredited time off for pregnancy, does not violate the Pregnancy Discrimination Act. In 1978 Congress passed the Pregnancy Discrimination Act (“PDA”) in reaction to the holding of the Supreme Court in General Elec. Co. v. Gilbert, 429 U.S. 125, which held that it was not sex-based discrimination prohibited by Title VII of the Civil Rights Act of 1964.

The Court held that plans that plans which deduct time off for pregnancy before the passage of the PDA do no violate the PDA, because until the passage of the PDA such plans were not unlawful under the reasoning of Gilbert. The Court reasoned that Congress did not intend the PDA to apply retroactively. Of course, nothing prevents an employer from voluntarily crediting time off for pregnancy leave which occurred before the passage of the PDA. The decision was 7-2, with Ginsburg and Breyer dissenting.