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Thursday, December 11, 2008

AT&T Uses Ledbetter to Justify Discrimination

The Supreme Court’s disgraceful decision in Ledbetter v. Goodyear Tire, and the precedent that it set, just will not seem to go away. During oral arguments yesterday in AT&T v. Hulteen, the case continued to rear its ugly head as telecom giant AT&T referenced it several times as a sort of get-out-of-jail-free card for its discriminatory actions toward Noreen Hulteen and three other former female employees. Just another example of the wide-spread damage done by that decision.

Ms. Hulteen’s case, originally brought in the Ninth Circuit, centered around AT&T’s pension calculations for the four women. Ms. Hulteen and her colleagues had all taken maternity leave between 1968 and 1976, fully expecting that they would not be penalized for doing so. When the time came to cash in their pension plans however, they discovered that their employer had docked them for their leave, subtracting that time from the pensions they were owed.

Carter G. Philips, arguing on behalf of AT&T said that the company was within its rights to withhold this pay for two reasons: a) the women took their maternity leave before the Pregnancy Discrimination Act was passed in 1978 and b) according to the Court’s own decision in Ledbetter, the women would have had to sue when the discrimination first occurred, 30 years ago, to have a case. Of course, as Justice Ginsburg pointed out, the women would have had no reason to sue then because “nothing had happened to them except…a bookkeeping entry.”

Interestingly enough, some of the justices did not seem too eager to follow the precedent set by the Ledbetter decision and instead referenced the 1986 decision, Bazemore v. Friday. In Bazemore, former justice William Brennan wrote, “Each week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII regardless of the fact that this pattern was begun prior to the effective date of Title VII.” Mr. Philips did acknowledged similarities between the cases, but continued to suggest that Ledbetter was a better fit.

And just in case you thought that the damage caused by Ledbetter was limited solely to cases stemming from Title VII, think again. The case also seems to have deligitimized the Equal Employment Opportunity Commission too -- at least in the opinion of Assistant Attorney General Lisa Blatt who argued in support of AT&T’s position. Asked why the government was taking such a contrary view from the EEOC, which supported the four women’s claim, Ms. Blatt replied that Ledbetter showed that the commission’s views warrant “no special deference.”

A decision in this case is not expected before June of next year. Meanwhile, Democrats and progressive groups across the country are pushing for the passage of the Lilly Ledbetter Fair Pay Restoration Act which would repair the damage done by the Court’s 2007 decision. President-elect Barack Obama stated many times during the campaign that he believes whole-heartedly in equal pay for equal work. Hopefully his support, along with the support of the newly elected members of Congress will mean we can finally put this ugly chapter behind us.

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