Turning the Sexual Tables

By Guy D. Garcia

Equal premiums must buy equal retirement benefits

Nathalie Norris, 58, is a supervisor in the Arizona department of economic security. In 1975, she signed up to make monthly contributions of $199 for an annuity plan offered by the state through the Lincoln National Life Insurance Co. Then Norris discovered that at retirement she would receive $34 a month less than a male employee who had made identical contributions. Reason: the insurance company's actuarial tables projected that as a woman she would live seven years longer than a man of the same age. Norris challenged the practice in a class-action suit under Title VII of the Civil Rights Act of 1964, which forbids employers to discriminate on the basis of sex, race, religion or ethnic origin.

Last week, in a 5-to-4 ruling, the Supreme Court banned employers from offering retirement plans that provide men and women with unequal benefits. Relying on a 1978 decision that ended women's higher monthly contributions to earn the same pension, Associate Justice Thurgood Marshall said for the majority that Title VII requires employees to be treated as individuals rather than members of a group. "Even a true generalization about class cannot justify class-based treatment," wrote Marshall. "An individual woman may not be paid lower monthly benefits simply because women as a class live longer than men."

The court's ruling directly applies only to employer-sponsored annuity plans and, according to the American Council of Life Insurance, will affect the handling of some 16 million pensions. The decision, however, will not apply retroactively. In a separate vote, Justice Sandra Day O'Connor switched sides and joined the four previous dissenters in finding that insurers would face an unfair burden, possibly even bankruptcy, if they had to pay to rectify past discrimination.

Buoyed by that part of the ruling, the insurance industry anticipated that its principal costs would come in the paperwork of figuring how to amend its offered plans. "The decision does not revolutionize the business of insurance," said Richard Schweiker, president of the American Council of Life Insurance. For their part, women's groups were "pleased at the reiteration of the ban on discrimination in employment," said Barbara Rochman, president of the New York City chapter of the National Organization for Women. Also pleased were those battling in several state legislatures and Congress for a unisex insurance bill covering a wide range of policies from auto to medical.

As for the specific fallout of last week's ruling, "It looks as if proportionately more men would have their pensions reduced while more women would have their pensions increased," said Michael Stuntz of the American Council of Life Insurance. The group that everyone agrees will thrive, said Sophie Korczyk of the Employee Benefit Research Institute, is "the benefits consultants. They will be raking in a lot of fees."

As it ended its turbulent 1982-83 term last week (see following story), the court decided to put off until next year a much anticipated decision on video-recording and copyright law. The court also handed down two other major opinions:

> In a 6-to-3 ruling, the Justices approved a speeded-up method of processing the last-ditch legal maneuvers of condemned prisoners. Thomas Andy Barefoot, 37, convicted in the shooting death of a police officer in Bell County, Texas, had filed a direct state court appeal, a previous petition to the Supreme Court, state court habeas corpus proceedings and, when all those failed, a federal habeas corpus petition, which reached the U.S. Court of Appeals for the Fifth Circuit last November. The appeals court denied his plea for a stay of execution.

The Justices, some of whom have publicly deplored the endless delays in executions, held that the appeals court's action was "tolerable," if not "the preferred procedure," and went on to permit stricter limitations on repeated habeas corpus petitions and on when courts must grant stays. "Truly perverse," said Dissenter Marshall, contending that an inmate condemned to death now has fewer protections than other prisoners. Though civil rights lawyers did not think there would be any immediate increase in executions, all federal courts are free to move with greater dispatch on the habeas corpus petitions of 1,200 death-row prisoners.

> Again voting 6 to 3, the Justices held that the traditional practice of having a chaplain open state legislative sessions with a prayer does not violate the First Amendment separation of church and state. Together with the court's decision two weeks ago approving tuition tax deductions for parents of parochial school children, the ruling was considered further evidence of the court's somewhat greater tolerance for Government support of religious activity.

Nebraska employed the Rev. Robert Palmer, a Presbyterian minister, to say an opening prayer at its state assembly sessions from 1965 to 1981. Four years ago, Ernest Chambers, a member of the state's unicameral legislature, went to court, arguing that the practice had the effect of establishing a state religion.

The Supreme Court did not agree. Contending that the presence of a chaplain to open legislative sessions is "deeply imbedded in the history and tradition of this country," Chief Justice Warren Burger held that the custom, including the use of state funds to pay the chaplain's salary, posed no threat to constitutional ideals. Wrote Burger: "To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an 'establishment' of religion or a step toward establishment."

Burger did not have to go far afield for an example of the invocations he endorsed. Each session of the high bench opens with a clerk proclaiming: "God save the United States and this Honorable Court."

--By Guy D. Garcia. Reported by Anne Constable/Washington

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