INTRODUCTION

Marie Manhart, a former employee of the City of Los Angeles Department of Water and Power, brought a class action lawsuit on behalf of herself and current and former employees, challenging the Department's requirement that female employees contribute approximately 15 percent more than male employees to the Department's retirement plan. The Department used sex-based actuarial tables to classify employees and determine the amount of an employee's contribution. The plaintiffs alleged that because identically situated male employees paid less, the policy constituted discrimination based on sex under Title VII of the Civil Rights Act of 1964. The plaintiffs argued that the Department impermissibly classified employees by sex and not as individuals to determine the amount of the contributions.

The Department defended the differential treatment, asserting that women on average had longer life expectancies than men. It argued that Title VII did not apply because actuarial longevity factor was a “factor other than the [employee's] sex.” In the original majority opinion written by Justice Stevens, the U.S. Supreme Court agreed with the lower courts that the employer discriminated by reducing the take-home pay of women. The Court found retroactive relief inappropriate, however, because of the potential impact on the employer and economy.

In an opinion concurring in part and dissenting in part, Justice Marshall reasoned that the Manhart plaintiffs were wrongly denied restitution, a refund of the wages improperly deducted from their take-home pay. Relying on the foundational case Albemarle Paper Co. v. Moody, Justice Marshall posited that Title VII authorized the district court to fashion appropriate relief, with a presumption favoring retroactive relief. Examining the record for clearly erroneous factual findings and abuse of discretion, Justice Marshall concluded that this presumption in favor of retroactive relief was not overcome.

THE FEMINIST JUDGMENT

In the Manhart feminist judgment, a re-imagined majority opinion, Professor Tracy Thomas, writing as Justice Thomas, explores how legal systems may operate to economically oppress women. The judgment implies that sex- or gender-based discrimination is systematic, patriarchal, and hierarchical, effectively suppressing and subordinating women. This is especially true when assumptions and stereotypes go unquestioned. From Thomas's opinion, one infers her belief that failure to award damages, as the original Manhart opinion did, operates to validate the legal and economic marginalization of female workers. Advancing gender equality, therefore, required invalidating the Department's classification and awarding damages.