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Sex Discrimination as “Actuarial Equality”: A Rejoinder to Kimball

Published online by Cambridge University Press:  20 November 2018

Douglas Laycock  and
Teresa A. Sullivan
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Extract

Debate continues over the Supreme Court's decision in City of Los Angeles Department of Water and Power v. Manhart. As most readers of this article already know, Manhart held illegal an annuity plan in which both sexes would receive equal periodic benefits after retirement although women made larger contributions while working. In collaboration with two colleagues, we defended the decision in another journal.* Although we tried to answer all of Manhart's critics, much of our attention was devoted to our colleague Spencer Kimball, who had published the most thorough and powerful of the attacks on Manhart. He has now published a reply.4 In the interests of having the main arguments on both sides summarized in the same journal, and of correcting misimpressions about the nature and extent of our argument, we offer this comment.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 6 , Issue 1 , Winter 1981 , pp. 221 - 228
Copyright
Copyright © American Bar Foundation, 1981 

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References

1 435 U.S. 702 (1978).Google Scholar

2 Brilmayer, Lea, Hekeler, Richard W., Laycock, Douglas, & Sullivan, Teresa A., Sex Discrimination in Employer-sponsored Insurance Plans; A Legal and Demographic Analysis, 47 U. Chi. L. Rev. 505 (1980).Google Scholar

3 Kimball, Spencer L., Reverse Sex Discrimination: Manhart, 1979 A.B.F. Res. J. 83.Google Scholar

4 Kimball, Spencer L., Reprise on Manhart, 1980 A.B.F. Res. J. 915.Google Scholar

5 Brilmayer et al., supra note 2, at 508.Google Scholar

6 Id. at 508–23.Google Scholar

7 Id. at 508–11.Google Scholar

8 Id. at 511.Google Scholar

9 Id. at 522–23.Google Scholar

10 Id. at 514–22.Google Scholar

11 Id. at 524–39.Google Scholar

12 Id. at 524–26.Google Scholar

13 Id. at 526, 526–35.Google Scholar

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15 Id. at 526–34. Thus, we relied on the long history of sex discrimination only to explain why the statutory policy against sex discrimination is so strong and admits of so few exceptions. We did not “point to the disabilities under which women have suffered historically as a reason for favoring them now,” as Kimball charges. Kimball, supra note 4, at 920.Google Scholar

16 Brilmayer et al., supra note 2, at 533–34.Google Scholar

17 Id. at 534.Google Scholar

18 Kimball, supra note 4, at 918.Google Scholar

19 Id.Google Scholar

20 Id.Google Scholar

21 Id.Google Scholar

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25 Id.Google Scholar

26 See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 361 (1978) (Brennan, J., concurring in part).Google Scholar

27 See Kimball, supra note 4, at 915 (characterizing “protecting individuals from disparate treatment” as “the high moral ground,” and “concern about group equality” as the “low ground”). (Emphasis in original.) See also the emphasis on reverse discrimination in the title of Kimball's original article. Kimball, supra note 3, at 83.CrossRefGoogle Scholar

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31 See the example in Brilmayer et al., supra note 2, at 508.Google Scholar

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36 Id.Google Scholar

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51 Id.Google Scholar

52 Differences in mortality rates between the races exceed differences in mortality rates between the sexes in all age groups between 25 and 55. U.S., Department of Health, Education, and Welfare, Public Health Service, National Center for Health Statistics, Vital Statistics of the United States, 1977, vol. 2, § 5: Life Tables at pp. 5–9 to 5–11, table 5–1 (Hyattsville, Md., 1980).Google Scholar

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56 Brilmayer et al., supra note 2, at 540 n.175. Kimball misread this statement, taking it to mean that accurate data would show no race differences at all among the elderly. Kimball, supra note 4, at 919. There is no basis for his assumption about what accurate data would show; it might be that whites would maintain their advantage over blacks at all ages.Google Scholar

57 Brilmayer et al., supra note 2, at 551–59.Google Scholar

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61 See, e.g., Spirt v. TIAA, 475 F. Supp. 1298, 1316–18 (S.D.N.Y. 1979).Google Scholar

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63 See, e.g., Peters v. Wayne State Univ., 476 F. Supp. 1343, 1350–51 (E.D. Mich. 1979); Spirt v. TIAA, 475 F. Supp. 1298, 1301–4 (S.D.N.Y. 1979).Google Scholar

64 Kimball, supra note 4, at 917–18.Google Scholar

65 See Kimball, supra note 3, at 92–93 n.27.Google Scholar

66 H.R. 100, 97th Cong., 1st Sess. (1981).Google Scholar