Many words have been written about Supreme Court nominee Sonia Sotomayor’s 2001 assertion in a speech, later published as a law review article, where she said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” These rather innocuous comments have fueled a firestorm (never mind that Justice Alito made similar ones.)
While this all seems like a tempest in a teapot to me, one case where gender would have made a difference is the recent U.S. Supreme Court May 18, 2009, 7-2 decision that the Pregnancy Discrimination Act (the “PDA”) should not apply retroactively. In AT&T vs. Hulteen the Supremes found that AT&T is permitted to pay lower pension benefits to female employees if they took maternity leave prior to the enactment of the PDA. Predictably, the lone woman Supreme Court Justice, Justice Ginsburg, dissented.
As I wrote in my book on Sexual Harassment, this decision had its roots in a 1976 decision. Prior to that time, those of us who practiced employment law assumed that only women could get pregnant. In G.E. vs. Gilbert, a woman was fired for being pregnant and sued, claiming sex discrimination. The case worked its way up to the Supreme Court. There, the Supremes - all of whom were male at the time - evidently knew something we did not, since they ruled, quite absurdly, that pregnancy discrimination by employers “was not a gender-based discrimination at all.”
Congress fired back a scathing response to the Supremes by passing the PDA scolding, essentially, “Yo Supremes! Only women can get pregnant.”
So we thought we had that straightened out until last month with the AT&T case. (In her dissent, the current lone woman on the Court, Justice Ginsburg wisely suggested overruling Gilbert so it “can generate no more mischief.”) It is hard to imagine any woman who has ever been pregnant, or has contemplated being pregnant, finding that pregnancy discrimination is not sex discrimination.
While I agree with Sotomayor’s critics that, of course, you don’t want one’s background to lead to race based decisions, you do want, above all else, a judge with wisdom. Wisdom comes from study, yes, but more often from life experience. A diverse and yes, “rich” as Sotomayor tagged it, experience is critical for wisdom.
Coco Channel captured an enduring truth in one sentence: “In order to be irreplaceable one must always be different.” Louis D. Brandeis, the first Jewish Associate Justice on the United States Supreme Court, also captured the importance of uniqueness when he said, “America has believed that in differentiation, not in uniformity, lies the path of progress. It acted on this belief; it has advanced human happiness, and it has prospered.” As we teach in our diversity courses if differences make us a better nation, a more relevant organization a more innovative and successful company, we’re going to have to learn to cope with differences while also putting them go good use. I’m proud of the diversity of my own team.
Most of the American public argees. A new Associated Press - GfK Poll suggested that Americans have a more positive view of Sotomayer than they did of any of former President George W. Bush’s nominee’s to the high court. Half backed her confirmation. In the same poll, 63 percent supported affirmative action for women while fewer, 56 percent favor affirmative action for racial or ethnic minorities. Surprising, the poll did not define affirmative action, a critical error since, as I wrote in my book on Affirmative Action most people are confused about the legal definition of this term.
Is Sotomayor different? Yes. Does that difference matter? Yes. We do need a court that reflects the richness of American diversity at least enough to understand that only women can get pregnant.