Nos. 98-3096, 98-3101, and 98-3102
_______________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
______________________________________________
AMERITECH BENEFIT PLAN COMMITTEE, et al.,
Plaintiffs-Appellees
v.
ANNETTE FOSTER-HALL, et al.,
Defendants-Appellants
and
BERNADETTE BERNABEI,
Plaintiff-Appellant
v.
AMERITECH CORPORATION, AMERITECH MANAGEMENT PENSION PLAN, and
AMERITECH EMPLOYEES’ BENEFIT COMMITTEE,
Defendants-Appellees.
_____________________________________
On Appeal from the United States District Court for the Northern
District of Illinois, Eastern Division U.S.D.C. Nos. 97 C 1441 and 97 C 2209
Honorable Judge Suzanne Conlon
______________________________________
BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF APPELLEES AND IN SUPPORT OF AFFIRMANCE
______________________________________
Ann Elizabeth Reesman*
Corbett L. Anderson
McGuiness & Williams, Ste.1200
1015 Fifteenth St., N.W.
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
Equal Employment Advisory Council
*Counsel of Record
CORPORATE DISCLOSURE STATEMENT
Cause No: 98-3096, 98-3101, and 98-3102
Short Title:
Ameritech Benefit Plan Committee et al. v. Foster-Hall et al.
To enable the judges to determine whether recusal is necessary or appropriate, an
attorney for a non- governmental party or amicus curiae, or a private attorney representing a
government party, must furnish a certificate of interest stating the following information:
(1) The full name of every party or amicus the attorney represents in the case:
___ Equal
Employment Advisory Council
(2) If such party or amicus is a corporation:
i)
Its parent corporation, if any:
None
ii)
A list of its stockholders which are publicly held companies owning 10% or more of
the stock in the party or amicus:
None
(3) The names of all law firms whose partners or associates have appeared for the party in the
district court or are expected to appear for the party in this court:
McGuiness & Williams
This certificate shall be filed with the appearance form or upon the filing of a motion in
this court, whichever occurs first. The text of the certificate (i.e., caption omitted) shall also be
included in front of the table of contents of the party’s main brief.*
*If an attorney changes law firm affiliation after the filing of the main brief, an amended
certificate of interest must be filed.
Attorney’s Signature:
Date:
TABLE OF CONTENTS
TABLE OF AUTHORITIES..............................................................................iii
INTEREST OF THE AMICUS CURIAE ............................................................ 1
STATEMENT OF THE CASE............................................................................ 4
SUMMARY OF ARGUMENT ........................................................................... 7
ARGUMENT ..................................................................................................... 8
I.
THE DISTRICT COURT’S DECISION FACILITATES THE
ADMINISTRATION OF SENIORITY AND LENGTH-OFSERVICE SYSTEMS, IS IN HARMONY WITH TITLE VII’S “SPECIAL
TREATMENT” OF SUCH SYSTEMS, AND PROTECTS THE
SENIORITY AND PENSION RIGHTS OF BENEFICIARIES
OF EMPLOYEE BENEFIT PLANS.......................................................... 8
II.
THE EMPLOYEES’ CLAIMS FAIL UNDER THE DISPARATE
IMPACT AND DISPARATE TREATMENT THEORIES OF
DISCRIMINATION ............................................................................... 12
A.
Ameritech’s Predecessors Acted Lawfully...................................... 13
B.
Ameritech Acted Lawfully............................................................. 14
C.
The Ninth Circuit Wrongly Decided Pallas v. Pacific Bell............... 16
CONCLUSION................................................................................................ 17
ii
TABLE OF AUTHORITIES
CASES
American Tobacco Co. v. Patterson,
456 U.S. 63 (1982) ..................................................................................... 3, 12
Ameritech Benefit Plan Comm., et al. v. Foster-Hall, et al.,
Nos. 97 C 1441 and 97 C 2209 (N.D. Ill. July 20, 1998) ............................passim
Arizona Governing Comm. for Tax Deferred Annuity & Deferred Compensation
Plans v. Norris, 463 U.S. 1073 (1983) ............................................................... 11
Banas v. American Airlines,
969 F.2d 477 (7th Cir. 1992) ............................................................................ 8
Bazemore v. Friday,
478 U.S. 385 (1986) ......................................................................................... 3
California Brewers Ass’n v. Bryant,
444 U.S. 598 (1980) ................................................................................. 3, 7, 9
Carter v. AT&T,
870 F. Supp. 1438 (S.D. Ohio 1994), vacated,
75 Fair Empl. Prac. Cas. (BNA) 866 (S.D. Ohio 1996) .................................... 17
Dasgupta v. University of Wis. Bd. of Regents,
121 F.3d 1138 (7th Cir. 1997) .................................................................... 7, 12
Delaware State College v. Ricks,
449 U.S. 250 (1980) ................................................................................... 3, 12
EEOC v. Commercial Office Prods. Co,
486 U.S. 107 (1988) ......................................................................................... 3
Florida v. Long,
487 U.S. 223 (1988) ......................................................................................... 3
General Elec. Co. v. Gilbert,
429 U.S. 125 (1976) ....................................................................................... 14
iii
Hazen Paper Co. v. Biggins,
507 U.S. 604 (1993) ....................................................................................... 15
International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977) .................................................................................passim
Kennedy v. Chemical Waste Management,
79 F.3d 49 (7th Cir. 1996) .............................................................................. 13
Landgraf v. USI Film Prods.,
511 U.S. 244 (1994) ......................................................................................... 3
Lorance v. AT&T Technologies,
490 U.S. 900 (1989) ......................................................................................... 3
Los Angeles Dep’t of Water & Power v. Manhart,
435 U.S. 702 (1978) ....................................................................................... 11
Malabarba v. Chicago Tribune Co.,
149 F.3d 690 (7th Cir. 1998) .......................................................................... 17
Pallas v. Pacific Bell,
940 F.2d 1324 (9th Cir. 1991), cert. denied,
502 U.S. 1050 (1992).................................................................................. 3, 16
Personnel Admin. of Mass. v. Feeney,
442 U.S. 256 (1979) ....................................................................................... 15
Pullman-Standard, Division of Pullman, Inc. v. Swint,
456 U.S. 273 (1982) ......................................................................................... 3
Ryan v. CFTC,
125 F.3d 1062 (7th Cir. 1997) .......................................................................... 1
Schwabenbauer v. Board of Educ.,
667 F.2d 305 (2d Cir. 1981) ........................................................................... 14
Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977) ....................................................................................... 3, 9
iv
United Air Lines, Inc. v. Evans,
431 U.S. 553 (1977) .................................................................................passim
Wambheim v. J.C. Penney Co., Inc.,
642 F.2d 362 (9th Cir. 1981) .......................................................................... 14
Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982) ......................................................................................... 3
STATUTES
Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. § 1001 et seq. ................................................................................... 2
Equal Pay Act (EPA),
29 U.S.C. § 206(d) ........................................................................................... 2
Pregnancy Discrimination Act (PDA), Pub. L. No. 95-555, 92 Stat.
2076 (1978), 42 U.S.C. § 2000e-(k) ................................................................... 4
Title VII of the Civil Rights Act of 1964 (Title VII),
42 U.S.C. § 2000e et seq. ................................................................................. 1
42 U.S.C. § 2000e-5(e) .................................................................................. 3
42 U.S.C. § 2000e-5(e)(2) ...................................................................... 12-13
LEGISLATIVE HISTORY
137 Cong. Rec. S15,485 (daily ed. Oct. 30, 1991) ............................................. 13
137 Cong. Rec. H9,530 (daily ed. Nov. 7, 1991) ................................................ 13
MISCELLANEOUS
F. Elkouri & E. Elkouri, How Arbitration Works 590 (4th ed. 1985) .................. 10
S. Slichter, J. Healy & E. Livernash, The Impact of Collective Bargaining
on Management 105 (1960) ........................................................................... 10
Collective Bargaining Negotiations and Contracts (BNA) (1998) ....................... 10
v
INTEREST OF THE AMICUS CURIAE
The Equal Employment Advisory Council (“EEAC” or “Council”) has
unique information and perspective that can help the Court beyond the help that the
lawyers for the parties are able to provide. Cf. Ryan v. CFTC, 125 F.3d 1062,
1063 (7th Cir. 1997). EEAC therefore seeks to have this Brief Amicus Curiae of
the Equal Employment Advisory Council In Support of Appellees and In Support
of Affirmance filed pursuant to Fed. R. App. P. 29, contingent upon the granting of
the accompanying motion for leave of court. Appellees have consented to the
filing of this brief. Appellants have not consented to the filing of this brief.
EEAC is a nationwide association of employers organized in 1976 to
promote sound approaches to the elimination of employment discrimination. Its
membership includes over 300 major U.S. corporations. EEAC’s directors and
officers include many of industry’s leading experts in the field of equal
employment opportunity. Their combined experience gives the Council a unique
depth of understanding of the practical, as well as legal, considerations relevant to
the proper interpretation and application of equal employment policies and
requirements. EEAC’s members are firmly committed to the principles of
nondiscrimination and equal employment opportunity.
All of EEAC’s members are employers subject to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), the Equal
Pay Act, 29 U.S.C. § 206(d) (“EPA”), the Employee Retirement Income Security
Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”), and the other various statutes,
federal orders, and regulations pertaining to nondiscriminatory employment
practices. Most of EEAC’s members have programs or policies whose eligibility
requirements depend upon the length of service of employees. Also, many
members have voluntary or collectively-bargained seniority systems where lengthof-service requirements determine benefit eligibility or the relative benefit and
employment status among covered employees under the system. Thus, EEAC
members have a direct interest in the issues presented for the Court’s consideration
in this case. This interest extends far beyond the interests of the parties to this case
and the particular system herein.
Here, the United States District Court for the Northern District of Illinois
granted summary judgment in favor of Ameritech on all claims. With respect to
Title VII, 1 the district court relied on United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977), to hold that while Ameritech’s reliance on net credited service may have
perpetuated the effects of Ameritech’s predecessors’ pre-1979 pregnancy leave
policies, it did not violate Title VII. EEAC believes that the district court’s
opinion averts enormous confusion and follows settled law.
1
This brief will address only the district court’s decision with regard to Title VII.
2
EEAC has participated as amicus curiae in several of the cases that will be
applied in this case.2 EEAC also has filed briefs in a number of other relevant
cases involving the interpretation of Title VII’s timely filing requirements, Section
706(e), 42 U.S.C. § 2000e-5(e). 3 Moreover, EEAC has briefed numerous cases
involving an analysis of the special protections that § 703(h) of Title VII provides
to bona fide seniority systems.4
Accordingly, EEAC has an interest in, and a familiarity with, the issues and
policy concerns presented to the Court in this case. Indeed, because of its
significant experience in these issues, EEAC has unique information and
perspective that can help the Court beyond the help that the lawyers for the parties
are able to provide.
2
EEAC briefed this same issue by supporting both the petition for rehearing and
the petition for a writ of certiorari in Pallas v. Pacific Bell, 940 F.2d 1324 (9th Cir.
1991), cert. denied, 502 U.S. 1050 (1992). EEAC also participated as amicus
curiae in United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977); Bazemore v.
Friday, 478 U.S. 385 (1986); Lorance v. AT&T Technologies, 490 U.S. 900
(1989); Florida v. Long, 487 U.S. 223 (1988); and Landgraf v. USI Film Prods.,
511 U.S. 244 (1994).
3
Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); Delaware State College
v. Ricks, 449 U.S. 250 (1980); EEOC v. Commercial Office Prods. Co, 486 U.S.
107 (1988).
4
Pullman-Standard, Div. of Pullman, Inc. v. Swint, 456 U.S. 273 (1982);
American Tobacco Co. v. Patterson, 456 U.S. 63 (1982); California Brewers Ass’n
v. Bryant, 444 U.S. 598 (1980); International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).
3
STATEMENT OF THE CASE
The facts are not in dispute, and are fully set forth in Ameritech’s brief. The
facts of particular relevance are set out below.
Plaintiffs-Appellees are Ameritech Benefit Plan Committee, Ameritech
Pension Plan, Ameritech Management Pension Plan and Ameritech Corporation
and its subsidiaries (collectively “Ameritech”). Appellants are 36 present and
former employees of Ameritech Corporation representing approximately 7,000
similarly-situated class members, intervening employees, the Communications
Workers of America, AFL-CIO (“CWA”), and five locals of the International
Brotherhood of Electrical Workers (“IBEW”)—(collectively “the employees”).
The employees seek a reversal of the district court’s decision that the employees’
claims are time-barred.
In 1978, Congress enacted the Pregnancy Discrimination Act, Pub. L. No.
95-555, 92 Stat. 2076 (1978) (“PDA”). The PDA amended Title VII to provide
that Title VII’s prohibition against discrimination “on the basis of . . . sex” includes
a prohibition against discrimination on the basis of pregnancy. 42 U.S.C. § 2000e(k). Fringe benefit programs became subject to the PDA on April 29, 1979.
Prior to the effective date of the PDA, Ameritech’s predecessors provided
less than full service credit to women who went on maternity or pregnancy-related
leave. But Ameritech’s predecessors provided full service credit for other
4
disability-related leaves of absence. Ameritech Benefit Plan Comm. v. FosterHall, Nos. 97 C 1441 and 97 C 2209, slip op. at 3 (N.D. Ill. July 20, 1998).
Upon the effective date of the PDA, Ameritech’s predecessors began
providing service credit to women who went on maternity or pregnancy-related
leave on an equal basis as employees who went on other disability-related leaves of
absence. The new gender-neutral policy for granting credited service applied
entirely prospectively. Thus, despite the change in policy, the pre-PDA variation
remained between the net credited service of women who took maternity or
pregnancy-related leaves of absence and the net credited service of similarly
situated employees who took other disability-related leaves. Id. at 5.
Ameritech came into existence in 1984 and at that time inherited its
predecessors’ gender-neutral policies for granting service credit. Id. at 13.
Ameritech decided in 1991, 1992, and 1994, to offer its employees the opportunity
to receive enhanced retirement benefits. Ameritech accomplished this by adding a
set number of years to employees’ credited service amounts and ages. Id. at 4.
As many employers do, Ameritech based eligibility for and payments under
the pension plan enhancements in part on each employee’s term of employment,
which is synonymous with the employee’s net credited service. Id. at 4-5. As a
result, some employees who took pre-PDA maternity or pregnancy-related leaves
were entitled to less benefits under the pension plan enhancement program than
5
those employees who took pre-PDA leaves for other disability-related reasons. Id.
at 4-5.
In 1994, some employees who were allegedly aggrieved by Ameritech’s
reliance on credited service in connection with its 1994 pension plan enhancement
filed charges of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) against Ameritech. The employees alleged that
Ameritech’s reliance on net credited service for determining eligibility under
Ameritech’s 1994 pension plan enhancement violated Title VII (among other
laws). Some of these employees received right-to-sue notices in 1997.
Ameritech sued the employees in the United States District Court for the
Northern District of Illinois seeking a declaratory judgment that its reliance in
1991, 1992, and 1994, on service credit that accrued before the passage of the PDA
did not violate Title VII, the EPA, ERISA, or any other federal, state, or local law.
Ameritech also sought a declaratory judgment that its treatment of service credit
did not violate the terms of collective bargaining agreements between Ameritech
Corporation and the CWA and IBEW, respectively. Id. at 1-2.
The employees filed counterclaims alleging that Ameritech’s denial of
retroactive service credit for pre-PDA maternity or pregnancy-related leaves
violated Title VII, the EPA, ERISA, and other laws. Bernadette Bernabei sued
Ameritech in a consolidated action. The parties filed cross-motions for summary
6
judgment. Id. at 2. The district court granted summary judgment in favor of
Ameritech, relying on United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977);
International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977); Delaware
State College v. Ricks, 449 U.S. 250 (1980); and Dasgupta v. University of Wis.
Bd. of Regents, 121 F.3d 1138 (7th Cir. 1997).
SUMMARY OF ARGUMENT
EEAC files this amicus curiae brief to stress the importance of the issues in
this case beyond the particular employer and specific system of calculating time in
service. Many EEAC members have operations in the Seventh Circuit and will be
affected directly by the decision in this case.
The district court’s decision promotes certainty for employers with lengthof-service requirements when computing benefit eligibility because they can know
that events that occurred in the distant past will not resurface as the basis for
challenging their determinations. In addition, the rights of other employees whose
own eligibility will be affected by service computations are not disrupted.
Predictable length-of-service calculations “promote stability and certainty
among employees, furnishing a predictable method by which to measure future
employment positions.” California Brewers Ass’n v. Bryant, 444 U.S. 598, 614
(1980) (Marshall, J., dissenting). Thus, respecting the “special treatment”
Congress provided for seniority systems avoids far-reaching and unpredictable
7
consequences on seniority systems for which predictability and stability are
crucial.
Moreover, the decision below follows controlling Supreme Court precedent.
The Supreme Court’s decisions in United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977), and International Bhd. of Teamsters v. United States, 431 U.S. 324 (1977),
are dispositive of this case. A bona fide seniority system is not unlawful under
Title VII simply because it has a disparate impact that perpetuates pre-Act
discrimination. Evans, 431 U.S. at 560; Teamsters, 431 U.S. at 353. Ameritech’s
seniority system is bona fide, as the employees cannot point to any valid evidence
that Ameritech acted with an intent to discriminate. See Banas v. American
Airlines, 969 F.2d 477, 482 (7th Cir. 1992) (“To say that a seniority system is not
bona fide is equivalent to saying that it is motivated by discriminatory intent.”).
The employees’ claims thus fail under either the disparate impact or disparate
treatment theories of discrimination.
ARGUMENT
I.
THE DISTRICT COURT’S DECISION FACILITATES THE
ADMINISTRATION OF SENIORITY AND LENGTH-OF-SERVICE
SYSTEMS, IS IN HARMONY WITH TITLE VII’S “SPECIAL
TREATMENT” OF SUCH SYSTEMS, AND PROTECTS THE
SENIORITY AND PENSION RIGHTS OF BENEFICIARIES OF
EMPLOYEE BENEFIT PLANS
The district court’s decision in this case respects seniority and length-of
service requirements in a manner that comports with Congressional intent. In Title
8
VII, Congress “afforded special treatment” to seniority systems. Trans World
Airlines, Inc. v. Hardison, 432 U.S. 63, 81 (1977). Congress made it explicit that it
did not intend to “destroy or water down the vested seniority rights of employees”
under neutral seniority systems. International Bhd. of Teamsters v. United States,
431 U.S. 324, 352-53 (1977).
Although Title VII does not define the term “seniority system,” the
Supreme Court has held that the term should be defined broadly. As indicated by
the Court in California Brewers Ass’n v. Bryant, the term clearly includes lengthof-service systems like the one at issue in this case.
In the area of labor relations, "seniority" is a term that connotes length
of employment. A "seniority system" is a scheme that, alone or in
tandem with non-"seniority" criteria, allots to employees ever
improving employment rights and benefits as their relative lengths of
pertinent employment increase . . . . The principal feature of any and
every "seniority system" is that preferential treatment is dispensed on
the basis of some measure of time served in employment.
California Brewers Ass’n v. Bryant, 444 U.S. 598, 605-06 (1980). Thus, the
length-of-service feature “promotes stability and certainty among employees,
furnishing a predictable method by which to measure future employment
positions.” Bryant, 444 U.S. at 614 (Marshall, J., dissenting).
The use of length-of-service requirements permeates corporate labor
relations policies. For example,
Collective agreements generally provide for the recognition of
seniority in several, and often many, aspects of the employment
9
relationship. Among these are promotions, layoffs, rehiring, shift
preference, transfers, vacations, days off, and overtime work.
F. Elkouri & E. Elkouri, How Arbitration Works 590 (4th ed. 1985). Further,
seniority allocates scarce benefits among employees and “for every person whose
seniority is advanced, someone will be adversely affected.” Id. at 587. Also, over
the years, there has been:
a dramatic rise in the number and types of benefit programs. Almost
without exception, entitlement to these new benefits has been geared
to seniority. In fact, this was occasionally a part of bargaining
strategy; the new benefit was made more palatable cost-wise to
management by limiting it to employees with long service.
S. Slichter, J. Healy & E. Livernash, The Impact of Collective Bargaining on
Management 105 (1960). 5
Moreover, as sponsors, administrators, and/or fiduciaries of benefit plans,
EEAC’s members are concerned that the retroactive nature of a decision for the
employees here could set a precedent that would disrupt pension plan funds and
5
The authors provide an extensive listing of areas affected by length of service
requirements: selection of days off; overtime distribution; vacation privileges;
parking privileges; vacations; pensions; severance pay; holidays; sick leave; group
life and hospitalization insurance; health and welfare plans; unemployment
benefits; intra-range wage movements; length-of-service wage adjustments;
promotions; and long services awards. Id. at 106-12.
For other examples, see Collective Bargaining Negotiations and Contracts
(BNA) (1998) at 44:51-44:52 (insurance); 48:51-48:56 (retirement, annuity and
death benefits); 48:101 (disability, early retirement and vesting); 48:51-155,
48:201-204 (pensions); 60:1-425 (layoffs, rehiring and worksharing); 621-7
(leave); 75: 81, 121 (seniority); 58:7 (holiday pay); 91:3-91:5 (vacations).
10
jeopardize the benefits available to employees and former employees covered by
such plans throughout the Seventh Circuit. Pension plans are particularly
vulnerable to unforeseen contingencies. As the Supreme Court has explained:
These plans, like other forms of insurance, depend on the accumulation of
large sums to cover contingencies. The amounts set aside are determined by
a painstaking assessment of the insurer’s [or employer’s] likely liability.
Risks that the insurer foresees will be included in the calculation of liability,
and the rates or contributions charged will reflect that calculation. The
occurrence of major unforeseen contingencies, however, jeopardizes the
insurers solvency and, ultimately, the insureds’ benefits. Drastic changes in
the legal rules governing pension and insurance benefits, like other
unforeseen events, can have this effect. Consequently, the rules that apply to
these funds should not be applied retroactively unless the legislature has
plainly commanded that result.
Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 721 (1978)
(emphasis added).6 Thus, “[r]etroactivity could be devastating to a pension fund”
and, just as importantly, the “harm would fall in large part on innocent third
parties.” Id. at 722-23. The significance of this point cannot be overstated.
Indeed, even in 1978, Justice Stevens noted that “[f]ifty million Americans
participate in retirement plans other than social security.” Manhart, 435 U.S. at
721. As a representative of a large and diverse group of major employers that use
and administer such systems on a daily basis, EEAC urges this Court to affirm the
6
Accord Arizona Governing Comm. for Tax Deferred Annuity & Deferred
Compensation Plans v. Norris, 463 U.S. 1073, 1105-06 (1983); Florida v. Long,
487 U.S. 223, 235-36 (1988).
11
decision below and avoid disruption of the range of employer programs based
upon length-of-service and seniority requirements.
II.
THE EMPLOYEES’ CLAIMS FAIL UNDER THE DISPARATE
IMPACT AND DISPARATE TREATMENT THEORIES OF
DISCRIMINATION
The Supreme Court repeatedly has held that seniority systems are immune
from challenge under the disparate impact theory of discrimination. American
Tobacco Co. v. Patterson, 456 U.S. 63, 69 (1982); International Bhd. of Teamsters
v. United States, 431 U.S. 324, 349-50 (1977); United Air Lines, Inc. v. Evans,
431 U.S. 553, 558 (1977). See also 42 U.S.C. § 2000e-5(e). A “neutral, legitimate
seniority system does not become unlawful under Title VII simply because it may
perpetuate pre-Act discrimination.” Teamsters, 431 U.S. at 353-54. See also
Delaware State College v. Ricks, 449 U.S. 250 (1980) (the application of a neutral
tenure policy did not constitute a fresh act of discrimination merely because it was
the inevitable result of a stale one); Dasgupta v. University of Wis. Bd. of Regents,
121 F.3d 1138 (7th Cir. 1997) (same). It is not surprising, then, that the employees
dress up their disparate impact claims in the clothing of present intentional
discrimination.
The employees rely on Section 112 of the Civil Rights Act of 1991 in an
attempt to salvage their claims. Section 112 states:
For purposes of this section, an unlawful employment practice occurs,
with respect to a seniority system that has been adopted for an
12
intentionally discriminatory purpose in violation of this subchapter
(whether or not that discriminatory purpose is apparent on the face of
the seniority provision), when the seniority system is adopted, when
an individual becomes subject to the seniority system, or when a
person aggrieved is injured by the application of the seniority system
or provision of the system.
42 U.S.C. § 2000e-5(e)(2) (emphasis added). This reliance is misplaced. Congress
did not intend to overturn United Airlines, Inc. v. Evans and its progeny in
enacting Section 112: “This legislation [Section 112] should not be interpreted to
affect the sound ruling of the Supreme Court regarding ‘continuing violations’
theory under Title VII. See Delaware State College v. Ricks, 449 U.S. 250
(1980).” 137 Cong. Rec. S15,485 (daily ed. Oct. 30, 1991) (statement of Sen.
Danforth) and 137 Cong. Rec. H9,530 (daily ed. Nov. 7, 1991) (statement of Rep.
Edwards). Ricks, of course, reaffirmed United Air Lines, Inc. v. Evans.
Therefore, as the text of Section 112 and its legislative history indicate, the
employees must prove that Ameritech or its predecessors adopted the seniority
system in question for an intentionally discriminatory purpose. This they cannot
do.
A.
Ameritech’s Predecessors Acted Lawfully
Ameritech’s predecessors’ pre-PDA policies could not have been adopted
with a discriminatory intent to violate “this subchapter” because they were adopted
as early as 1914—long before Title VII was enacted. See Kennedy v. Chemical
Waste Management, 79 F.3d 49, 51 (7th Cir. 1996) (noting that phrase “this
13
subchapter” in Section 112 refers to Title VII). Moreover, right up to the date the
PDA was signed into law, Ameritech’s predecessors had good reason to believe
that their pregnancy leave policies did not violate Title VII. See General Elec. Co.
v. Gilbert, 429 U.S. 125, 136 (1976) (holding that exclusion of pregnancy from a
disability benefits plan was “not gender-based discrimination at all”). And upon
the effective date of the PDA, Ameritech’s predecessors changed the pregnancyleave policies to be gender-neutral, thus shielding the policies from attack, as the
PDA had no retroactive effect. See, e.g., Schwabenbauer v. Board of Educ., 667
F.2d 305, 310 n.7 (2d Cir. 1981); Wambheim v. J.C. Penney Co., Inc., 642 F.2d
362, 363 n.1 (9th Cir. 1981).
B.
Ameritech Acted Lawfully
Ameritech came into existence in 1984 and inherited its predecessors’
gender-neutral policies for granting credited service. While it is true that some
employees’ net credited service reflected Ameritech’s predecessors’ pre-PDA
pregnancy leave policies, Ameritech did not “adopt” its predecessors’ pre-PDA
pregnancy leave policies in 1984. Ameritech merely relied on the amounts of net
credited service that each employee had accrued up until that point. Ameritech
Benefit Plan Comm. v. Foster-Hall, Nos. 97 C 1441 and 97 C 2209, slip op. at 14
(N.D. Ill. July 20, 1998).
14
The employees allege that Ameritech relied on its system of credited service
in connection with the 1991, 1992, and 1994 pension plan enhancements for an
intentionally discriminatory purpose. But the employees do not point to any
legally sufficient evidence of intentional discrimination. Id. at 13-15. They allege
that Ameritech knew that relying on credited service to calculate eligibility under
the 1991, 1992, and 1994 pension plan enhancements would disadvantage
employees who took pre-PDA maternity and pregnancy-related leaves. See
(Appellants’ Brief at 29-30.)
At best, this evidence shows that Ameritech decided to use credited service
to calculate eligibility under the 1991, 1992, and 1994 pension plan enhancements
in spite of the effect on employees who took maternity leaves before the PDA’s
enactment. But “‘[d]iscriminatory purpose’ . . . implies more than intent as
volition or intent as awareness of consequences. It implies that the decisionmaker
. . . selected or reaffirmed a particular course of action at least in part ‘because of,’
not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel
Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Cf. Hazen Paper Co. v.
Biggins, 507 U.S. 604, 611-12 (1993) (basing employment decisions on years of
service in spite of the effect on older employees does not violate the Age
Discrimination in Employment Act). The employees’ argument that knowledge
equals intent thus fails as a matter of law.
15
C.
The Ninth Circuit Wrongly Decided Pallas v. Pacific Bell
The employees rely on the Ninth Circuit’s decision in Pallas v. Pacific Bell,
940 F.2d 1324 (9th Cir. 1991), cert. denied, 502 U.S. 1050 (1992), a case with
facts similar to those here. In Pallas, a divided panel mistakenly held that United
Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), and its progeny did not apply. The
panel reasoned that the early retirement package at issue in Pallas was a new
benefit program instituted long after the enactment of the PDA, and that the system
was not facially neutral because it discriminated against women who had taken
pregnancy leaves before the PDA became effective in 1979. Pallas, 940 F.2d at
1326-27.
But the panel’s reasoning was fatally flawed. The conduct it found illegal—
the employer’s failure to give service credit for pregnancy leave—occurred not in
1987, but in 1972, when it was lawful. All Pacific Bell did in 1987 was apply a
facially neutral length-of-service system based on the service credits its employees
had accrued up to that point. As the Supreme Court held in United Air Lines, Inc.
v. Evans:
[A] challenge to a neutral system may not be predicated on the mere
fact that a past event which has no present legal significance has
affected the calculation of seniority credit, even if the past event might
at one time have justified a valid claim against the employer.
16
Evans, 431 U.S. at 560. The Pallas majority plainly misapplied Evans, and this
Court should reject the employees’ attempt to invoke Pallas in this case.7
CONCLUSION
For the foregoing reasons, the amicus curiae urges this Court to affirm the
decision below and hold that Ameritech’s reliance on credited service in
conjunction with the 1991, 1992, and 1994 pension plan enhancements did not
violate Title VII.
Respectfully submitted,
December 1, 1998
___________________________
Ann Elizabeth Reesman
Corbett L. Anderson
McGuiness & Williams
Suite 1200
1015 Fifteenth St., N.W.
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
Equal Employment Advisory Council
7
The employees also rely on Carter v. AT&T, 870 F. Supp. 1438, 1445 (S.D. Ohio
1994) (holding that AT&T’s reliance on service credit that reflected pre-PDA leave
policies to calculate employee eligibility for early retirement benefits violated Title
VII), vacated 75 Fair Empl. Prac. Cas. (BNA) 866 (S.D. Ohio 1996). “Of course,
district court opinions are of little or no authoritative value . . . and the
persuasiveness of the reasoning underlying such decisions is at its lowest when, as
here, it comes from courts that are not bound by the precedents of this circuit.”
Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998). This is all
the more true when the district court opinion has been vacated.
17
18
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(A)(7)(B)
I hereby certify that the Brief Amicus Curiae of the Equal Employment
Advisory Council In Support of Appellees and In Support of Affirmance complies
with Fed. R. App. P. 32(a)(7)(B). The brief has 5,160 words.
______________________
Ann Elizabeth Reesman
McGuiness & Williams
1015 15th Street, N.W.
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae
Equal Employment
Advisory Council
CERTIFICATE OF SERVICE
I hereby certify that two (2) paper copies of, and one (1) computer
disk containing, this Brief Amicus Curiae of the Equal Employment
Advisory Council In Support of Appellees and In Support of Affirmance
were sent by Federal Express, a third-party commercial carrier, to each of
the following:
Jeri A. Lindahl-Garcia
Mayer, Brown & Platt
190 South La Salle Street
Chicago, Ill. 60603
Michael B. Erp
Laurie M. Burgess
Katz, Friedman, Schur & Eagle
77 W. Washington St.
20th Floor
Chicago, IL 60602
Robert J. Tscholl
749 United Bank Building
220 Market Ave.
South Canton, OH 44702
Gilbert A. Cornfield
Cornfield & Feldman
343 Dearborn Street, 13th Floor
Chicago, IL 60604
and by United States mail, first class postage prepaid to:
Mary K. O’Melveny
Communications Workers of America
501 Third Street, N.W.
Washington, D.C. 20001
December 1, 1998
____________________
Ann Elizabeth Reesman
McGuiness & Williams
1015 Fifteenth Street, N.W.
Washington, D.C. 20005
`
Attorneys for Amicus Curiae
Equal Employment Advisory Council