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Considering Whether to Extend Ledbetter Fair Pay Act Statute of Limitations Rule to Seventies-era Pregnancy Discrimination

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March 3, 2009

It did not take long for employment discrimination plaintiffs to try to capitalize on the newly-enacted Lilly Ledbetter Fair Pay Act of 2009, which treats each payment of wages, benefits, or other compensation as an act of compensation discrimination if an employee’s pay is affected by a prior discriminatory decision.  Two weeks after the Ledbetter Act became law, a group of plaintiffs in a pregnancy discrimination case currently awaiting a decision by the Supreme Court of the United States filed a supplemental brief asking the Court to take the Ledbetter Act into account in its ruling.

The plaintiffs in AT&T v. Hulteen, No. 07-543, sued their employer for an alleged discriminatory decision which denied them retirement service credit because they took pregnancy leave.  However, the plaintiffs' leave came before the Pregnancy Discrimination Act was law and AT&T argued that the plaintiffs were therefore not protected from discrimination on the basis of pregnancy.  In their supplemental brief, the plaintiffs argue that the Ledbetter Act is a statement by Congress of the proper model for addressing past discriminatory compensation decisions and other practices that have a subsequent effect on compensation.  They contend that this model should now be applied to their claim of pregnancy discrimination because the underlying act continues to affect their pension credit accrual level.

Last week AT&T filed a supplemental response brief in which it argues that at the time the plaintiffs took pregnancy leave, treating the leave differently was legal, and that the Ledbetter Act only applies to conduct that was illegal when it occurred.  AT&T 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.  Additionally, AT&T 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 a discriminatory purpose.  AT&T argues that the plaintiffs cannot make this showing.

The Court is expected to decide the case in the first half of 2009.

The employees' brief is found here.  The employer's brief is found here.

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