Court bars unequal pensions, expedites execution appeals

The United States Supreme Court ended its 1982-83 term Tuesday with major decisions on the highly charged issues of sex discrimination and capital punishment.

The court held, 5-4, that an employer may not offer employees a retirement plan that provides smaller payments to retired women than to retired men who have contributed the same monthly amount to the plan. And the court, by a vote of 6-3, cleared the way for lower courts to rule with dispatch on the cases of persons scheduled for execution.

In the pension decision, Justice Sandra Day O'Connor cast a crucial vote in favor of women's rights in a case brought by Nathalie Norris, a manager who works in the Arizona Department of Economic Security.

The Supreme Court ruled that the state of Arizona violated the sex discrimination ban in Title VII of the 1964 Civil Rights Act by offering employees a retirement income plan that includes an option under which women receive a smaller monthly annuity than men making equal contributions.

When Ms. Norris became eligible to participate in this deferred compensation plan, she chose the annuity option. Trained by the state as part of her job to spot discrimination in employment practices, she quickly noticed that upon retirement, her monthly pension check would be 10 percent less than that of a man who had contributed the same monthly amount she had.

The difference in annuity payments was based on the fact that women as a group live longer than men. The private insurance company under contract to Arizona for the plan used sex-based mortality tables to calculate annuities.

Norris won her case in the lower courts; the state, backed by the insurance industry, appealed to the US Supreme Court.

Justice O'Connor joined the court's more liberal members in holding that use of sex-segregated actuarial tables to calculate retirement benefits violates Title VII.

Sex may not be used to predict longevity, wrote Justice Thurgood Marshall, because Title VII requires employers to deal with employees as individuals. Under that law, he wrote, ''even a true generalization about a class cannot justify class-based treatment. An individual woman may not be paid lower benefits simply because women as a class live longer than men.''

Justice O'Connor joined the four justices who dissented from the major point to hold that this ruling would affect future pension plans only, and would not be retroactive. Benefits calculated on the basis of contributions made after the court's ruling must be calculated on the basis of the average longevity of all the employer's employees, she wrote.

Benefits based on contributions made before the court's decision could be calculated by the now-invalid system, however - a concession Justice O'Connor justified as necessary to avoid the risk of bankrupting some pension systems.

In her separate opinion, she noted that the court's decision did not necessarily affect other uses of a person's gender in insurance calculations, such as its use in determining automobile insurance premiums charged to young drivers.

The high court's capital punishment ruling dealt with two distinct issues: the move by courts to speed consideration of requests from death-row inmates for review of their case and for stay of execution; and the use at sentencing proceedings of testimony by psychiatrists concerning a defendant's future dangerousness, even though the psychiatrist may not have examined the defendant.

The Supreme Court permitted both practices to continue. It held that so long as there has been full consideration of the inmate's constitutional claims, there is nothing inherently wrong in an appeals court telescoping its review of a case and of a request for a stay of execution into a single proceeding conducted on an expedited schedule. The ruling came in the case of Thomas A. Barefoot, convicted of murdering a Texas police officer in 1978.

The court made clear that these procedures were only appropriate when courts were ruling on petitions for habeas corpus from such inmates. These petitions are a secondary means of challenging one's detention and sentence, after a conviction has been fully reviewed on direct appeal.

And the court also upheld the use of psychiatric testimony challenged in the Barefoot case. Although the American Psychiatric Association has described such testimony as unreliable, the court ruled it permissible under the federal rules of evidence that govern use of expert testimony.

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