Employer Brief in AT&T v. Hulteen Filed

Ross Runkel from LawMemo, Inc. writes to let us know that the AT&T has filed a supplemental brief in response to the employees' supplemental brief (we noted the employees' brief here, and Ross' entry has links to both briefs and a summary of their points here), which had argued that the issue was resolved by the Ledbetter Fair Pay Act of 2009. The Hulteen case involves whether employees who took pregnancy leave before the Pregnancy Discrimination Act made clear that discrimination on the basis of pregnancy was discrimination on the basis of sex should be given the same service credit towards retirement benefits as those who took other temporary disability leave.

The employer argues that treating pregnancy leave differently at the time it was taken was legal, that the Ledbetter Act only applies to conduct that was illegal when it was taken and that the Ledbetter Act does not define as a substantive matter what an unlawful employment practice is. In making this argument, the employer distinguishes between current discrimination, through a facially discriminatory policy, and giving effect to conduct that was itself lawful when performed but would not be lawful now. While that might create a disparate impact, this case was not brought as a disparate impact case. Additionally, the employer distinguishes between discrimination in compensation and maintenance of a neutral seniority system. A facially neutral seniority system will only violate Title VII if it was adopted with discriminatory purpose. Finally, the employer argues that if the Ledbetter Act is seen to apply at all, the Court should decide the issues briefed without reference to the Act (i.e. whether the actions taken by AT&T were lawful when taken), but then remand the matter to the 9th Circuit for further proceedings on whether the Ledbetter Act changed that retroactively.

MM