February 13, 2009
Does Ledbetter Act Resolve AT&T v. Hulteen?
You might remember AT&T v. Hulteen (see here and here), the case about whether retirees should be given service credit for maternity leave they took (and did not get service credit for) before Title VII was amended by the Pregnancy Discrimination Act. The Supreme Court heard oral argument on December 10. Well, Harper Jean Tobin reports at ACS Blog that the employees have filed a supplemental brief with the Court, arguing that the Ledbetter Fair Pay Act of 2009 resolves the issue in their favor.
The Act provides that
an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.
Here, the employees can say that the amendment makes clear that the unlawful employment practice took place when the benefit was ultimately calculated--at retirement, and it was at that point AT&T decided not to give full credit for pregnancy leave. Tobin also notes that the Act is expressly retroactive, reaching back to all cases pending when Ledbetter was decided, or filed since; several district courts have already relied on the Act to revive cases that were about to be dismissed. You might recall that Charlie Sullivan agrees with that interpretation and has explained why it's constitutional. We'll see if the Supreme Court agrees, too.
Hat tip: Paul Secunda
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It appears to resolve the statute of limitations issue, but I don't see how it resolves the liability issue.
Posted by: AF | Feb 16, 2009 9:16:12 AM
The argument about the liability issue is that the Act defines when the unlawful employment practice occurs and makes clear that it can occur more than one time. So the initial decision before 1979 not to grant pregnancy leave might not have violated Title VII (although some would argue that it did). Despite that, the subsequent decision(s) to measure time in service and to calculate retirement benefits could be its own unlawful employment practice if it was illegal at the time the decision was made. At the time that service was calculated, retirement benefits fixed, and those benefits begun to be paid out, AT&T decided not to treat pregnancy leave like nonpregnancy disability leave. When it did so, treating pregnancy differently from other temporary disabilities was explicitly a violation of Title VII. Therefore, AT&T committed an unlawful employment practice at that time regardless of whether it had committed an unlawful employment practice at an earlier time.
Posted by: laborprof lpb | Feb 16, 2009 2:48:08 PM