ATTORNEY TELLS JUSTICES: PENSION SYSTEM LACKING PREGNANCY CREDIT IS ‘DISCRIMINATORY’

Sunday, December 21, 2008

(PAI)

ATTORNEY TELLS JUSTICES: PENSION SYSTEM LACKING PREGNANCY CREDIT IS ‘DISCRIMINATORY’
By Mark Gruenberg
PAI Staff Writer

WASHINGTON (PAI)--A pension system based on seniority, when days off for pregnancy aren’t counted for credit but days off for other disabilities are, is “facially discriminatory” against women and must be changed, the attorney for retired AT&T worker Noreen Hulteen and her colleagues told the U.S. Supreme Court on Dec. 10.

But Hulteen’s lawyer, Kevin Russell, ran into opposition not just from the company, but from the anti-worker GOP Bush administration.

At issue was the 1979 Pregnancy Discrimination Act -- which, despite its name actually outlaws discrimination based on pregnancy -- can apply to workers who suffered the discrimination before it became law, even though the impact of that discrimination occurred after its passage.

If the Supreme Court rules PDA applies, thousands of veteran female workers nationwide could get added pension credit and higher traditional pensions as a result.

Hulteen and other former AT&T workers, plus one present worker, all became pregnant and went on leave before 1979. But when the workers, all CWA members, came back, they got pension credit for only 30 days of leave, far below the days they would have gotten (210) after the law was passed and also far below the pension credits they would have gotten for other disabilities.

But since the pension credit, or lack of it, didn’t kick in until Hulteen and the others retired, the question the justices tackled is whether the PDA should retroactively cover all female workers who suffered pregnancy discrimination before it passed, but where the impact did not show up until afterwards.

Russell, attorney for Hulteen and the other women, argued for the retroactivity. He repeatedly emphasized the actual harm to the women came long after PDA became law, even though the discrimination occurred much earlier.

“This system gives unequal credit for equal service,” he told the justices. “And Congress provided that a facially discriminatory” pension credit system “cannot be adopted” by AT&T or anyone else. When the law passed, AT&T changed its system.

“Every act that implements a facially discriminatory system is intentionally discriminatory, and it’s a separate act of discrimination,” Russell told Chief Justice John Roberts. That prompted Associate Justice John Paul Stevens to comment that “intent behind the (pension) system is imbued in every aspect of the system.”

“We think at the time the clients took (pregnancy) leave, it was unlawful to discriminate” against them, Russell added. “But none of this matters, because the question is whether the (AT&T pension) system as a whole discriminates.” And because the women were shorted service time due to less credit for their pregnancy leave, it does discriminate, Russell contended.

Carter Phillips, attorney for AT&T, argued for preserving the company’s seniority system in its pension determinations. He said ruling for Hulteen and the other women would affect not just them, but all the other workers affected by the pension plan.

“The second factor in this case (is) that it seems to me this court has relied upon significantly in the prior decisions that have come out on the side of not allowing this kind of litigation to go forward is we are talking about a seniority system here. And as I said…it's not just the rights of the individual and what benefits she might be entitled to. The seniority system obviously affects the rights of all members of the seniority plan and all of the pension plan and the entire system that the seniority operates on,” he said.

“But the truth is this is not a facially discriminatory policy...The (Supreme) Court said these kinds of arrangements where you don't give service credit to people who take pregnancy leave is not facially discriminatory,” Phillips declared.

Citing an older case, which the PDA overturned, Justice Ruth Bader Ginsburg said: “We would not regard it that way today. Phillips responded that “I don't know whether it would be regarded as facially discriminatory today. I think it would be regarded as illegal today. Whether it would be facially discriminatory I think is a -- is a trickier question.”

The GOP Bush government sided with AT&T, and its seniority system. Justice Department attorney Lisa Blatt noted that in a prior civil rights case where the employer discriminated racially on pay, the employer was ordered to equalize pay going forward, but not make the equality retroactive.

AT&T “should not, 30 to 40 years after the fact, have to defend claims about whether these women were disabled and actually unable to work due to pregnancy, when medical records and personnel records are probably missing and memories long since faded. And, third, the retroactive scrambling of the seniority system upsets the vested rights of other employees,” she said.
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