by Harper Jean Tobin, staff attorney, National Senior Citizen Law Center

The Supreme Court’s decision last year in Ledbetter v. Goodyear Tire & Rubber Co. – holding that employers become immune from pay discrimination claims 180 days after an initial payroll decision – became a reviled symbol of the Court’s rightward shift under Chief Justice Roberts. In Lily Ledbetter’s remarkable appearances on Capitol Hill, on the campaign trail, and at the Democratic National Convention, the 5-4 decision represented the Court’s ideological rigidity and indifference to the real-world struggles of women and minorities in the workforce.  Yet even as Ledbetter faces the likelihood of being overturned by the incoming Congress, AT&T and the Bush Administration are asking the high court to extend its erosion of civil rights laws even further in a case called AT&T v. Hulteen.

The plaintiffs are Nora Hulteen and three other employees who received reduced retirement benefits because of pregnancy leave they took in the 1960s and early 1970s. Along with other major employers, AT&T changed the way it calculated service credit for pregnancy leave in 1979 following the enactment of the Pregnancy Discrimination Act, but continued to award benefits on a discriminatory basis to those who had taken leave previously. (The parties dispute whether pregnancy-based discrimination was already illegal before the PDA, but that’s not really central to the case.) The company is now set to argue before the Supreme Court on Wednesday that these women can’t sue because any discrimination occurred decades ago when they took pregnancy leave, not when they were awarded lesser retirement benefits.

Sound familiar? As in Ledbetter, the core issue in this case is whether the “discriminatory act” will be defined in a reductive, technical way (focusing on the recording of credits in a database decades ago) or a more pragmatic one (focusing on the award of a smaller pension). AT&T argues that the discrepancy in benefits today is a mere “effect” of past discrimination, just as Lily Ledbetter’s receipt of lesser paychecks than her male coworkers was deemed to be a mere “effect” of past decisions.

The main problem with that logic in the Ledbetter case was that Ledbetter had no way of knowing she was the victim of discrimination until it was, according to the court, too late to sue. The main problem for AT&T here is that its use of service calculations that punish pregnant workers is so explicitly discriminatory that there’s no excuse for not correcting it. Thus, Hulteen et al. argue that more than Ledbetter, this case resembles Bazemore v. Friday (1986). In that case, the Court held that an employer violated Title VII when it integrated its Black and white workforces, but maintained existing pay disparities. Court stated unanimously: “Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” The Ledbetter majority distinguished Bazemore, saying it was limited to “facially discriminatory pay structures” – which is just what the Hulteen plaintiffs say AT&T’s policy is.

The government initially favored the workers in this case, but is now backing AT&T. In its Compliance Manual and in a brief to the Ninth Circuit, the EEOC took the position that awarding pension benefits on a discriminatory basis is actionable, even if the award is based on calculations that took place long ago. But when the case reached the Supreme Court, the Solicitor General sided with AT&T, saying that allowing the women’s suit would require an impermissible retroactive application of the PDA. As in the blockbuster Wyeth v. Levine drug case, the lame-duck administration appears set on jettisoning long-time policy in order to protect big business.

Meanwhile, the trade group for employer pension plans has filed a brief arguing that compensating victims of retirement discrimination is bad for retirees. They argue that retroactive awards of pension benefits upset plans’ careful planning. AARP responded with a brief saying there is no evidence that discrimination awards will threaten plan stability. The issue of relief is not really before the Court, but perhaps these fears will move some justices into AT&T’s corner.

The Court’s decision in Hulteen will affect as many as 15,000 current and former employees of AT&T and its subsidiaries, not to mention other companies with similar policies. It is also another bellwether for the Court’s treatment of our civil rights laws. In AT&T’s view, once a discriminatory decision is translated into a service credit calculation, or some other purportedly neutral measure, it can be freely used to discriminate in years to come – and it’s betting the Court will agree. Thus, even if the 111^th Congress passes the Lily Ledbetter Fair Pay Act, the bloodless formalism of Ledbetter may live on.