Supreme Court Grants Cert. in Hulteen Retroactive PDA Case

Following the SG's recommendation, the Supreme Court this morning granted cert. in AT&T Corp. v. Hulteen, 07-543.  The case concerns whether Title VII permits an employer, when setting retirement benefits, to discriminate between women who took pregnancy disability leaves before the Pregnancy Discrimination Act  (PDA) came into effect and other employees who took any other kind of temporary disability leave during that same period. The en banc Ninth Circuit held that AT&T’s employment benefits system violated the PDA. 

Here's more of a description from Eliza Presson at SCOTUSblog from this past Friday:

For nearly a hundred years, petitioner AT&T and its predecessors have offered employee benefits based on a “Net Credited Service” (“NCS”) date, which is calculated based on an employee’s hire date and adjusted forward to account for any time in which the employee is not working and therefore not earning service credits. Before 1977, employees who took pregnancy leave were granted a maximum of thirty personal days, with their NCS date adjusted forward for any additional time; by contrast, employees on regular temporary disability had no limit on the days they could continue to accrue service credit.

The individual respondents in the case before the Court are four current and former AT&T and Pacific Bell (AT&T’s predecessor) employees who took pregnancy leaves before the 1977 amendment and began to retire in the 1990s. After filing charges with the EEOC and receiving a right-to-sue letter, they – along with respondent Communications Workers of America, the union representing non-management AT&T employees – filed this suit in federal district court, arguing that the smaller pensions that resulted from AT&T’s failure to provide them with full credit for pregnancy leaves taken before the effective date of the PDA violated Title VII . . . .

The Ninth Circuit granted rehearing en banc and affirmed the district court’s summary judgment in favor of the respondents, again relying on Pallas. The en banc majority held that no intervening Supreme Court decision overruled Pallas, nor did Pallas give impermissible retroactive effect to the PDA. It was AT&T’s post-PDA decision to award benefits according to an NCS date adjusted for pregnancy leave that was the “relevant, actionable” event. According to the en banc majority, Hulteen and the other respondents were affected by pregnancy anew when AT&T calculated their retirement benefits according to the adjusted NCS date and deprived them of benefits received by those not “affected by pregnancy.”

Judge O'Scannlain dissented in the case and his opinions have been very influential for the conservative members of the Supreme Court (see Garcetti).  In his dissent, he:

rejected the majority’s holdings that Pallas remained good law and that the sex discrimination charges in Hulteen were timely: “because Pallas invented a timely Title VII violation where the determination of benefits simply gave present effect to past, unchallenged acts, contrary to Supreme Court authority, it must be overruled.”

This case seems to fall in the Evans/Ricks/Ledbetter'Landsgraf line of cases, and I am not at all confident that these plaintiffs will receive their retroactive benefits.  Argument should be in the Fall.

PS