Under § 215 of the Social Security Act, old-age benefits are
computed on the basis of a wage earner's "average monthly wage"
earned during his "benefit computation years" which are the
"elapsed years" (reduced by five) during which his covered wages
were highest. Until 1972, when the statute was amended to eliminate
the distinction, "elapsed years" depended upon the wage earner's
sex. Section 215(b)(3) prescribed that the number of "elapsed
years" for a male wage earner would be three higher than for an
otherwise similarly situated female wage earner; for a male, the
number of "elapsed years" equaled the number of years that elapsed
after 1950 and before the year in which he became 65, whereas, for
a female, the number of "elapsed years" equaled the number of years
that elapsed after 1950 and before the year in which she became 62.
Accordingly, a female could exclude from the computation of her
"average monthly wage" three more lower earning years than a
similarly situated male could exclude, and this would result in a
slightly higher "average monthly wage" and correspondingly higher
monthly old-age benefits for the retired female wage earner. On
review of a denial of the request of appellee male wage earner (to
whom the 1972 amendment did not apply because he reached age 62
before its effective date) that the more favorable formula be used
to compute his old-age benefits, the District Court held that the
statutory scheme violated the equal protection component of the Due
Process Clause of the Fifth Amendment on the grounds that (1) to
give women who reached age 62 before 1975 greater benefits than men
of the same age and earnings record was irrational, and (2) in any
event, the 1972 amendment was to be construed to apply
retroactively, because otherwise it would be irrational.
Held:
1. "[C]lassifications by gender must serve important
governmental objectives and must be substantially related to the
achievement of those objectives,"
Craig v. Boren,
429 U. S. 190,
429 U. S.
197.
2. The statutory scheme itself, and the legislative history of
former § 215(b)(3), demonstrate that the statute was deliberately
enacted to "redres[s] our society's longstanding disparate
treatment of women,"
Page 430 U. S. 314
Califano v. Goldfarb, ante at
430 U. S. 209
n. 8, and was not "the accidental byproduct of a traditional way of
thinking about females."
Ante at
430 U. S. 223
(STEVENS, J., concurring in judgment). The statute operated
directly to compensate women for past economic discrimination by
allowing them to eliminate additional low-earning years from the
calculation of their retirement benefits, and in no way penalized
women wage earners.
3. The failure to make the 1972 amendment retroactive does not
constitute discrimination on the basis of date of birth. Old-age
benefits are not constitutionally immunized against alterations of
this kind, but Congress may replace one constitutional computation
formula with another, and make the new formula prospective
only.
413 F.
Supp. 127, reversed.
PER CURIAM.
Under § 215 of the Social Security Act, as added, 64 Stat. 506,
and amended, 42 U.S.C. § 415 (1970 ed. and Supp. V), old-age
insurance benefits are computed on the basis of the wage earner's
"average monthly wage" earned during his "benefit computation
years" which are the "elapsed years" (reduced by five) during which
the wage earner's covered wages were highest. Until a 1972
amendment, "elapsed years" depended upon the sex of the wage
earner. Section 215(b)(3) prescribed that the number of "elapsed
years" for a male wage earner would be three higher than for an
otherwise similarly situated female wage earner; for a male, the
number of "elapsed years" equaled the number of years that elapsed
after 1950 and before the year in which he attained age 65; for a
female, the number of "elapsed years" equaled the number of years
that elapsed after 1950 and before the year in which she attained
age 62. [
Footnote 1] Thus, a
male born in 1900
Page 430 U. S. 315
would have 14 "elapsed years" on retirement at age 65, but a
female born in the same year would have only 11. [
Footnote 2] Accordingly, a female wage earner
could exclude from the computation
Page 430 U. S. 316
of her "average monthly wage" three more lower earning years
than a similarly situated male wage earner could exclude. This
would result in a slightly higher "average monthly wage" and a
correspondingly higher level of monthly old-age benefits for the
retired female wage earner. [
Footnote 3] A single-judge District Court for the Eastern
District of New York, on review under § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g), of a denial, after hearing, of
appellee's request that the more favorable formula be used to
compute his benefits, held that, on two grounds, the statutory
scheme violated the equal protection component of the Due Process
Clause of the Fifth Amendment: (1) that to give women who reached
age 62 before 1975 greater benefits than men of the same age and
earnings record was irrational, [
Footnote 4] and (2) that, in any event, the 1972 amendment
was to be construed to apply retroactively, because construing the
amendment to give men who reach age 62 in 1975 or later the benefit
of the 1972 amendments but to deny older men the same benefit would
render the amendment irrational, and therefore unconstitutional.
413 F.
Supp. 127 (1976). We reverse.
To withstand scrutiny under the equal protection component of
the Fifth Amendment's Due Process Clause, "classifications
Page 430 U. S. 317
by gender must serve important governmental objectives, and must
be substantially related to achievement of those objectives."
Craig v. Boren, 429 U. S. 190,
429 U. S. 197
(1976). Reduction of the disparity in economic condition between
men and women caused by the long history of discrimination against
women has been recognized as such an important governmental
objective.
Schlesinger v. Ballard, 419 U.
S. 498 (1975);
Kahn v. Shevin, 416 U.
S. 351 (1974). But
"the mere recitation of a benign, compensatory purpose is not an
automatic shield which protects against any inquiry into the actual
purposes underlying a statutory scheme."
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 648
(1975). Accordingly, we have rejected attempts to justify gender
classifications as compensation for past discrimination against
women when the classifications in fact penalized women wage
earners,
Califano v. Goldfarb, ante at
430 U. S. 209
n. 8;
Weinberger v. Wiesenfeld, supra at
420 U. S. 645,
or when the statutory structure and its legislative history
revealed that the classification was not enacted as compensation
for past discrimination.
Califano v. Goldfarb, ante at
430 U. S.
212-216 (plurality opinion),
430 U. S.
221-222 (STEVENS, J., concurring in judgment);
Weinberger v. Wiesenfeld, supra at
420 U. S.
648.
The statutory scheme involved here is more analogous to those
upheld in
Kahn and
Ballard than to those struck
down in
Wiesenfeld and
Goldfarb. The more
favorable treatment of the female wage earner enacted here was not
a result of "archaic and overbroad generalizations" about women,
Schlesinger v. Ballard, supra at
419 U. S. 508,
or of "the role-typing society has long imposed" upon women,
Stanton v. Stanton, 421 U. S. 7,
421 U. S. 15
(1975), such as casual assumptions that women are "the weaker sex"
or are more likely to be childrearers or dependents.
Cf.
Califano v. Goldfarb, supra; Weinberger v. Wiesenfeld, supra.
Rather,
"the only discernible purpose of [§ 215's more favorable
treatment is] the permissible one of redressing our society's
longstanding disparate treatment of women."
Califano v. Goldfarb, ante at
430 U. S. 209
n. 8.
Page 430 U. S. 318
The challenged statute operated directly to compensate women for
past economic discrimination. Retirement benefits under the Act are
based on past earnings. But as we have recognized:
"Whether from overt discrimination or from the socialization
process of a male-dominated culture, the job market is inhospitable
to the woman seeking any but the lowest paid jobs."
Kahn v. Shevin, 416 U.S. at
416 U. S. 353.
See generally id. at
416 U. S.
353-354, and nn. 4-6. Thus, allowing women, who as such
have been unfairly hindered from earning as much as men, to
eliminate additional low-earning years from the calculation of
their retirement benefits works directly to remedy some part of the
effect of past discrimination. [
Footnote 5]
Cf. Schlesinger v. Ballard, supra at
419 U. S.
508.
The legislative history of § 215(b)(3) also reveals that
Congress directly addressed the justification for differing
treatment of men and women in the former version of that section
and purposely enacted the more favorable treatment for female wage
earners to compensate for past employment discrimination against
women. Before 1956, the sexes were treated equally by § 215(b)(3);
the computation it required turned on the attainment of "retirement
age," which was then defined in 42 U.S.C. § 416(a) (1952 ed.) as 65
for both sexes. [
Footnote 6] In
1956, however, retirement age was redefined as 62 for women and 65
for men, Social Security Amendments of
Page 430 U. S. 319
1956, § 102(a), 70 Stat. 809, thereby changing the calculation
under § 215(b)(3). A House Report emphasizes that this reduction in
the retirement age for women was purposely made to remedy
discrimination against women in the job market:
"Your committee believes that the age of eligibility should be
reduced to 62 for women workers. . . . A recent study by the United
States Employment Service in the Department of Labor showed that
age limits are applied more frequently to job openings for women
than for men, and that the age limits applied are lower."
H.R.Rep. No. 1189, 84th Cong., 1st Sess., 7 (1955). [
Footnote 7] The effect of this change
on § 215(b)(3) was also discussed in connection with the amendment
of that section in 1961. [
Footnote
8] Social Security Amendments of 1961, § 102(d)(2), 75 Stat.
135. During the hearings on that amendment, Representative Watts
asked why a woman would draw more benefits than a similarly
situated man. After it was noted that this did not change the law
as it had existed since 1956, Representative Boggs confirmed that
the difference in treatment was not inadvertent:
"If I may interrupt, I think we went into this at great length
some years ago when we adopted the 62-year provision for women and
the theory was that a woman at that age was less apt to have
employment opportunities than a man, and despite the fact of some
statistics to the effect
Page 430 U. S. 320
that women live longer than men, I think the other fact is
equally commanding, so there is some justification for a
distinction between men and women."
Executive Hearings on Social Security Amendments of 1961, before
the House Committee on Ways and Means, 87th Cong., 1st Sess.,
146-147 (1961). Thus, the legislative history is clear that the
differing treatment of men and women in former § 215(b)(3) was not
"the accidental byproduct of a traditional way of thinking about
females,"
Califano v. Goldfarb, ante at
430 U. S. 223
(STEVENS, J., concurring in judgment), but rather was deliberately
enacted to compensate for particular economic disabilities suffered
by women.
That Congress changed its mind in 1972 and equalized the
treatment of men and women does not, as the District Court
concluded, constitute an admission by Congress that its previous
policy was invidiously discriminatory. 413 F. Supp. at 129.
Congress has in recent years legislated directly upon the subject
of unequal treatment of women in the job market. [
Footnote 9] Congress may well have decided
that "[t]hese congressional reforms . . . have lessened the
economic justification for the more favorable benefit computation
formula in § 215(b)(3)."
Kohr v.
Weinberger, 378
F. Supp. 1299,
1305
(ED Pa.1974),
vacated on other grounds, 422 U.S. 1050
(1975). Moreover, elimination of the more favorable benefit
computation for women wage earners, even in the remedial context,
is wholly consistent with those reforms, which require equal
treatment of men and women in preference to the attitudes of
"romantic paternalism" that have contributed to the "long and
unfortunate history of sex discrimination."
Frontiero v.
Richardson, 411 U. S. 677,
411 U. S. 684
(1973).
Finally, there is no merit in appellee's argument that the
failure to make the 1972 amendment retroactive constitutes
Page 430 U. S. 321
discrimination on the basis of date of birth. Old-age benefit
payments are not constitutionally immunized against alterations of
this kind.
Flemming v. Nestor, 363 U.
S. 603 (1960). Congress expressly reserved "[t]he right
to alter, amend, or repeal any provision" of the Act, 42 U.S.C. §
1304, and the Fifth Amendment "does not forbid . . . statutory
changes to have a beginning, and thus to discriminate between the
rights of an earlier and later time."
Sperry & Hutchinson
Co. v. Rhodes, 220 U. S. 502,
220 U. S. 505
(1911). It follows that Congress may replace one constitutional
computation formula with another and make the new formula
prospective only.
Reversed.
[
Footnote 1]
Under § 202(a) of the Act, 42 U.S.C. § 402(a) (1970 ed. and
Supp. V), a fully insured individual who has reached retirement age
is entitled upon application to a monthly old-age insurance benefit
equal to his "primary insurance amount."
Section 215(a) of the Act, 42 U.S.C. § 415(a) (1970 ed. and
Supp. V), sets out a table for determining the primary insurance
amount. This amount is based on an individual's "average monthly
wage" as defined in § 215(b) of the Act, 42 U.S.C. § 415(b) (1970
ed. and Supp. V).
Before it was amended in 1972, § 215(b) of the Act, 42 U.S.C. §
415(b), provided in part:
". . . [A]n individual's 'average monthly wage' shall be the
quotient obtained by dividing -- "
"(A) the total of his wages paid in and self employment income
credited to his 'benefit computation years' (determined under
paragraph (2)), by"
"(b) the number of months in such years."
"(2)(A) The number of an individual's 'benefit computation
years' shall be equal to the number of elapsed years (determined
under paragraph (3) of this subsection), reduced by five; except
that the number of an individual's benefit computation years shall
in no case be less than two."
"(B) An individual's 'benefit computation years' shall be those
computation base years, equal in number to the number determined
under subparagraph (A), for which the total of his wages and self
employment income is the largest."
"(C) For purposes of subparagraph (b), 'computation base years'
include only calendar years in the period after 1950 and prior to
the earlier of the following years -- "
"(i) the year in which occurred . . . the first month for which
the individual was entitled to old-age insurance benefits, or"
"(ii) the year succeeding the year in which he died."
"
* * * *"
"(3) For purposes of paragraph (2), the number of an
individual's elapsed years is the number of calendar years after
1950 . . . and before --"
"(A) in the case of a woman, the year in which she died or, if
it occurred earlier but after 1960, the year in which she attained
age 62."
"
* * * *"
"(C) in the case of a man who has not died, the year occurring
after 1960 in which he attained (or would attain) age 65."
[
Footnote 2]
Congress eliminated the distinction in 1972. As amended by §
104(b), 86 Stat. 1340, 42 U.S.C. § 415(b)(3) (1970 ed., Supp. V),
now provides:
"[T]he number of an individual's elapsed years is the number of
calendar years after 1950 . . . and before the year in which he
died, or if it occurred earlier, but after 1960, the year in which
he attained age 62."
The amendment, however, does not apply to men who reached age 62
before its effective date in 1972, and so the former statute
continues to govern the determination of this and some other claims
of male wage earners.
[
Footnote 3]
For example, in this case, the District Court found that
appellee was awarded a monthly benefit of $185.70, but that a
similarly situated female wage earner would have been awarded $204
per month.
413 F.
Supp. 127, 128.
[
Footnote 4]
Four other federal courts have reached a contrary conclusion.
Gruenwald v. Gardner, 390 F.2d 591 (CA2),
cert. denied
sub nom. Gruenwald v. Cohen, 393 U.S. 982 (1938);
Kohr v.
Weinberger, 378 F.
Supp. 1299 (ED Pa.1974),
vacated on other grounds, 422
U.S. 1050 (1975);
Polelle v. Secretary of
HEW, 386 F.
Supp. 443 (ND Ill.1974);
McEvoy v. Weinberger, CCH
Unempl.Ins.Rep. p. 17,414 (SD Fla., Aug. 28, 1973).
[
Footnote 5]
Even with the advantage provided by former § 215(b)(3), women on
the average received lower retirement benefits than men. "As of
December, 1972, the average monthly retirement insurance benefit
for males was §179.60 and for females, §140.50."
Polelle v.
Secretary of HEW, supra at 444 (emphasis omitted).
[
Footnote 6]
At that time, the calculation of the "average monthly wage"
under § 215(b) was somewhat different from the scheme set out in
n 1,
supra, which was
not adopted until Social Security Amendments of 1960, § 303(a), 74
Stat. 960. The role of § 215(b)(3) in the computation was similar
under the old scheme, however, and the differences between the old
and new methods of computation are essentially irrelevant to the
effect of the 1956 change in the definition of retirement age on §
215(b)(3).
[
Footnote 7]
Congress deliberately adopted the change notwithstanding the
argument urged upon it that reducing the retirement age would not
benefit women. S.Rep. No. 2133, 84th Cong., 2d Sess., 14-15
(1956).
[
Footnote 8]
In 1961, in connection with the extension of reduced retirement
benefits to men at age 62, the definition of retirement age in 42
U.S.C. § 416(a) was repealed, and the differing ages for the
computation of "elapsed years" under § 215(b)(3) were written
explicitly into that section for the first time. §§ 102(c)(1),
102(d)(2), 75 Stat. 134, 135. It was at that time that § 215(b)(3)
took on the form it was to retain until 1972.
See
nn 1-2,
supra.
[
Footnote 9]
See, e.g., Equal Pay Act of 1963, 29 U.S.C. § 2000(d);
Civil Rights Act of 1964, § 703(a), 42 U.S.C. § 2000e-2(a).
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE STEWART, MR.
JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, concurring in the
judgment.
While I am happy to concur in the Court's judgment, I find it
somewhat difficult to distinguish the Social Security provision
upheld here from that struck down so recently in
Califano v.
Goldfarb, ante p.
430 U. S. 199.
Although the distinction drawn by the Court between this case and
Goldfarb is not totally lacking in substance, I question
whether certainty in the law is promoted by hinging the validity of
important statutory schemes on whether five Justices view them to
be more akin to the "offensive" provisions struck down in
Weinberger v. Wiesenfeld, 420 U.
S. 636 (1975), and
Frontiero v. Richardson,
411 U. S. 677
(1973), or more like the "benign" provisions upheld in
Schlesinger v. Ballard, 419 U. S. 498
(1975), and
Kahn v. Shevin, 416 U.
S. 351 (1974). I therefore concur in the judgment of the
Court for reasons stated by MR. JUSTICE REHNQUIST in his dissenting
opinion in
Goldfarb, in which MR. JUSTICE STEWART, MR.
JUSTICE BLACKMUN, and I joined.
