Supreme Court Revisits Issue of Timing of Discrimination Suits

By Staff Report

Dec. 11, 2008

The Supreme Court may be poised to revisit an issue similar to one that caused a controversial ruling in 2007—whether a worker can sue for a discriminatory act that occurred decades before.

The previous case involved Lilly Ledbetter, a tire factory supervisor from Alabama who sued her employer, Goodyear, for more than 20 years’ worth of paying her less than men who held an equivalent job.

The court decided 5-4 that her suit fell outside the statute of limitations, which requires a worker to take action within 180 days of the original discriminatory act.

In a case the court heard Wednesday, December 10, former AT&T employees are suing the company for not crediting them with maternity leave that they took in the late 1960s through the mid-1970s, before the passage of an anti-pregnancy discrimination law.

Noreen Hulteen, who retired after being laid off in 1994, says her pension benefits have been reduced because 210 days of her pregnancy leave were defined by AT&T as personal leave that did not count toward seniority. AT&T only gave her credit for 30 days.

In 1978, Congress amended the Title VII anti-discrimination law by passing the Pregnancy Discrimination Act, which requires that women exiting the workforce for pregnancy continue to receive benefits just like their colleagues who take other kinds of disability leave. After that law passed, AT&T amended its leave policies to comply.

A district court ruled in favor of Hulteen, essentially endorsing her position that AT&T retroactively violated Title VII. AT&T appealed to the 9th Circuit Court of Appeals, where a three-judge panel reversed the district court’s decision.

But after Hulteen and her colleagues asked for a rehearing before the entire 9th Circuit, the court upheld the district court. It did so in part by holding that AT&T’s original policy was not lawful. AT&T then took the dispute to the Supreme Court.

In his presentation before the court on December 10, AT&T’s attorney argued that the company should not be held liable for the pregnancy leave it had in place during the Nixon administration.

“What we did at the time, in our judgment, was perfectly legal,” said Carter Phillips.

He also asserted that AT&T shouldn’t have to defend itself against stale claims based on business decisions that were made a generation ago.

But Justice Ruth Bader Ginsburg said that the former AT&T workers didn’t take action because they didn’t feel the impact of their lost work time.

“They wouldn’t be hurt until they sought retirement or sought some other benefit that increased seniority would give them,” she said.

The women knew immediately that they would only get 30 days credit for their pregnancy leave, Phillips countered.

“I think the average person told that they have less seniority today than they had yesterday … would say, ‘I am entitled to go to court today,’ ” Phillips said.

Phillips argued that pension payments today don’t constitute continuing pregnancy discrimination, citing the court’s decision in the Ledbetter case that each of her paychecks was not a pay violation.

“This is more like the present effects of past allegedly discriminatory acts and, therefore, not actionable at this time,” Phillips said.

Hulteen’s lawyer, Kevin Russell, argued that AT&T is liable today for the results of its pre-1979 pregnancy policies because they have resulted in mothers receiving less in pension payments than others who worked the same amount of time.

“It facially discriminates on the basis of pregnancy and then does so whether the pregnancy discrimination was unlawful at the time or not,” Russell said. “And under [Title VII] … to discriminate on the basis of pregnancy is carried forward today in every possible application.”

Several justices wrestled with the argument that a policy that was once lawful could have an illegal effect today.

“I guess I’ve never heard of a case where it’s OK to … discriminate intentionally, but it’s illegal if that has a disparate impact,” said Chief Justice John Roberts Jr.

Justice Anthony Kennedy expressed concern about how much changing its pension system would cost AT&T.

Russell contended that the price might be millions of dollars but that was an insignificant amount in the scope of AT&T’s pension plan, which recently had a $17 billion surplus.

“That’s a small amount of money … millions of dollars?” Kennedy asked.

The case is AT&T Corp. v. Hulteen, Docket No. 07-543.

—Mark Schoeff Jr.

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