This is a case in which the Ninth Circuit determined that AT&T (then Pacific Telephone and Telegraph) violated the Pregnancy Discrimination Act of Title VII (PDA) by not offering the same retirement benefits to women who took time off due to pregnancy as those offered to employees who took time off due to other disabilities, despite the fact that the women had taken the time prior to the establishment of the PDA.
In late May 2008, the United States – in response to the Court’s late January call for the views of the Solicitor General – filed a brief in which it urges the Court to grant certiorari. First, the government argues, the Ninth Circuit erred in holding that AT&T violated Title VII when, in calculating benefits, it failed to credit pre-PDA pregnancy leave; such a conclusion, the government emphasizes, gave an unintended retroactive effect to the PDA. Second, the government contends that efforts by the Ninth Circuit and respondents to characterize AT&T’s NCS system as facially discriminatory are “seriously flawed,” reasoning that when the petitioner adopted and applied its pre-PDA pregnancy leave policies, there was no law requiring pregnancy leave to be treated like other temporary disability leaves. Consequently, the policy could be discriminatory only if the PDA had retroactive effect, which it clearly did not. Indeed, the government continues, not only was it not retroactive, but the PDA “did not even apply prospectively to benefits programs” until 180 days after its enactment.
The United States next argues that, to circumvent the fact that the PDA did not at the time of its passage require employers to credit employees for pre-PDA pregnancy leave, the Ninth Circuit held that AT&T was nevertheless required to adjust the NCS date to account for pre-PDA pregnancy leave whenever it calculated benefits for any employee who had taken pre-PDA pregnancy leave. However, in the government’s view, “that kind of perpetuation-of-past discrimination claim is” – notwithstanding respondents’ arguments to the contrary – directly foreclosed” by a line of Supreme Court precedent starting with Evans and most recently revisited in Ledbetter.
With more and more of our society retiring, I have a feeling that we’re going to see a number of these types of cases arise over the next few years. Whatever the outcome, it’s certainly going to be a landmark decision.