Amicus Curiae Brief — Pacific Bell v. Pallas

y

me No. 91-812

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

PACIFIC BELL, PACIFIC TELESIS GROUP,

PACIFIC TELEPHONE & TELEGRAPH COMPANY,

PACIFIC TELESIS GROUP PENSON PLAN FOR

SALARIED EMPLOYEES,

* Petitioners,

LANA PALLAS (aka Lana Hubbs),

and persons similarly situated, .

Respondents,

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION TO FILE BRIEF AS AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITION

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

McGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

( 47) wc il

* Counsel of Record

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-812

PACIFIC BELL, PACIFIC TELESIS GROUP,

PACIFIC TELEPHONE & TELEGRAPH COMPANY,

PACIFIC TELESIS GROUP PENSON PLAN FOR

SALARIED EMPLOYEES,

. Petitioners,

LANA PALLAS (aka Lana Hubhbs),

and persons similarly situated,

vespondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE

IN SUPPORT OF THE PETITION

To the Honorable, the Chief Justice and the Asso-

ciate Justices of the United States Supreme Court:

Pursuant to Rule 37.1 and .2 of the Rules of this

Court, the Equal Employment Advisory Council

(“EEAC’”) respectfully moves this Court for leave to

file the accompanying brief amicus curiae in support

of the Petition in this case. The petitioners have con-

sented, but counsel for the respondents have refused

consent to the filing of this brief. In support of this

motion, EEAC by the following, shows that this brief

brings to the attention of the Court the relevance and

importance of this case beyond that presented in the

petition.

1. EEAC is a nationwide association of employers

organized in 1976 to promote sound approaches to the

elimination of employment discrimination. Its mem-

bership comprises a broad segment of the employer

community in the United States, including over 250

major corporations and several trade associations

which themselves have hundreds of corporate mem-

bers. Its Board of Directors is composed of experts

in labor and equal employment opportunity. Their

combined experience gives EEAC a unique depth of

understanding of the practical, as well as legal aspects

of EEO policies and requirements.

2. As employers, EEAC’s members are subject to

the provisions of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. § 2000e et seq., and the

other various statutes, federal orders and regulations

pertaining to nondiscriminatory employment prac-

tices. Most of EEAC’s members have programs or

policies whose eligibility requirements depend upon

the length of service of employees. Also, many mem-

bers have voluntary or collectively-bargained seniority

systems under which length-of-service requirements

determine benefit eligibility or the relative benefit

and employment status among covered employees. As

such, 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

at issue herein.

3. Here, the plaintiff complained that she was

denied service credit for time spent on maternity leave

in 1972. As a result, she was ineligible in 1987 for

the employet’s early retirement program, which re-

quired 20 or more years of net credited service. The

district court, relying on United Air Lines, Inc. v.

Evans, 431 U.S. 553 (1977), dismissed the suit, as

it was based upon a denial of service credit which was

legal when it occurred and which has no present legal

consequences. On appeal, however, a panel of the

Ninth Circuit reversed the district court and held

2-1 that the employer’s continued refusal to give ma-

ternity leave service credit was a present act of dis-

crimination, and thus not barred by the United Air

Lines decision.

4. As the dissenting opinion below illustrates, the

Ninth Circuit’s decision departs from settled law and

threatens to cause enormous confusion. Employers

with length-of-service requirements will face great

uncertainty when computing benefit eligibility, be-

cause they cannot accurately predict when events that

occurred in the distant past will resurface as the basis

for challerging their determinations. In addition, the

rights of other employees whose own eligibility will

be affected by service computations would be dis-

rupted if the decision is allowed to stand. Many

EEAC members have operations in the Ninth Circuit

and will be covered directly by the decision. More-

over, inasmuch as the decision appears to disrupt

settled law, it could cause uncertainty for employers

who operate in many different circuits.

5. Accordingly, because of the potentially enor-

mous impact upon employer programs that depend

upon length of service requirements and rights and

benefits, Supreme Court review of this case is of vital

concern to EEAC’s nationwide employer constituency,

as well as to countless unions and employers subject

to such systems.

6. Because of this interest, EEAC participated as

amicus curiae in the primary cases involved in this

case. See United Airlines v. Evans, 431 U.S. 553

(1977); Bazemore v. Friday, 478 U.S. 385 (1986).

EEAC also filed briefs in a number of other cases

involving interpretation of Title VII’s timely-filing

requirements, Section 706(e), 42 U.S.C. § 2000e-5(e).

See Lorance v. AT&T Technologies, Inc., 490 U.S. 900

(1989) ; Zipes v. Trans World Airlines, Inc., 455 U.S.

385 (1982); Delaware State College v. Ricks, 449

U.S. 250 (1980); and Mohasco Corp. v. Silver, 447

U.S. 807 (1980). See also EEOC v. Commercial Of-

fice Products Co., 486 U.S. 107 (1988). In addition,

EEAC has filed amicus briefs in other cases involving

an analysis of Title VII challenges to the maintenance

of allegedly discriminatory seniority systems.

Pullman-Standard v. Swint, 456 U.S. 273 (1982);

American Tobacco Co. v. Patterson, 456 U.S. 63

(1982); California Brewrs Ass’n v. Bryant, 444 USS.

598 (1980); Intl Bro. of Teamsters v. United States,

431 U.S. 324 (1977); Trans World Airlines, Inc. v.

Hardison, 432 U.S. 63 (1977); and International U.

of Elec. Wkrs. v. Robbins & Meyers, Inc., 429 U.S.

229 (1976).

7. EEAC moved to file a brief amicus cuirae in the

court below supporting Pacific Bell’s petition for re-

hearing and suggestion for rehearing en banc. Pacific

Bell’s petition, however, was denied on September 26,

1991. As a result, when the court acted on EEAC’s

motion on October 23, 1991, the motion was denied as

moot.

8. Pacific Bell’s petition was filed with the Court

on November 18, 1991. Accordingly, EEAC’s brief is

due to be filed no later than December 18, 1991. As

EEAC’s brief was filed before that date, it is timely

under Rule 37.2 of this Court’s Rules.

WHEREFORE, it is respectfully moved that

KEAC be granted leave to file the accompanying brief

amicus curiae in this case.

Respectfully submitted,

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

McGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

December 16, 1991 * Counsel of Record

TABLE OF CONTENTS

Page

8 FP RR ee ts ss a ee ii

INTEREST OF THE AMICUS CURIAE .................. 2

STATEMENT OF THE CASE ....................000000.2......... 2

SUMMARY OF THE REASONS FOR GRANTING

THE WRIT ....... Fbediaaceadisenenbeaeesbeabanic Ue aecanenarcecernate. ners 5

REASONS FOR GRANTING THE WRIT ................ 7

THE NINTH CIRCUITS DECISION REQUIR-

ING THE EMPLOYER TO GIVE SERVICE

CREDITS FOR PRE-ACT PREGNANCY

LEAVE IS CONTRARY TO PREVAILING

LAW, CONFLICTS DIRECTLY WITH THE SU-

PREME COURT’S UNITED AIR LINES DE-

CISION AND WOULD GREATLY DISRUPT

LEGITIMATE LENGTH-OF-SERVICE AND

SENIORITY SYSTEMS OF EMPLOYERS GEN-

ERIE < Sticconpepsnecinicaaanaeets sansehbieg uabiemsecanasedilen sepia 7

A. The Decision Below Conflicts With Controlling

Supreme Court Decisions And Other Lower

Court Decisions Holding That Neutral Length-

of-Service (Seniority) Systems Do Not Have

To Be Disrupted Because Of The Effects Of

Past Conduct That Has No Present Legal Con-

sequences ............ Oe ts WA Not RR ot 7

B. The Decision Below Will Disrupt The Admin-

istration of Seniority and Length-of-Service

Systems, Causing Conflict With Title VIIi’s

“Special Treatment” of Such Systems ............. 13

CRE rvcceenshciikericsnccsareiebaietepiice abana opnuiradsetane ae 15

(i)

il

TABLE OF AUTHORITIES

CASES Page

Bazemore v. Friday, 478 U.S. 385 (1986)...... 3, 4, 6, 10, 11

Bowen v. Georgetown Univ. Hosp., 109 S. Ct. 468

GRR ST ERG lie RE i A cane nO TE 10

California Brewers Ass’n v. Bryant, 444 U.S. 598

nc, 5,13

Delaware State College v. Ricks, 449 U.S. 250

iat TP SU Bec OR ens Pe ne 11

Farris v. Board of Ed. of City of St. Louis, 576

if 8 F&F f+ SS 5, 10

General Elec. Co. v. Gilbert, 429 U.S. 125 (1976).. 3

International Bro. of Teamsters v. United States,

a elk tinaeul 5, 8,13

Lorance v. AT&T Technologies, Inc., 490 U.S. 900

Sasi APR ina PRS sett Dis Sa aS TO 10

Schwabenbauer v. Bd. of Educ. of City of Olean,

720 be Gee Gee Go. EGGS? .......................... 5, 10

Trans World Airlines, Inc. v. Hardison, 432 U.S.

I ac a 13

United Air Lines, Inc. v. Evans, 481 U.S. 553

Ng SESE SC aS SPI oe AR on cRaey release a ee passim

MISCELLANEOUS

Collective Bargaining Negotiations and Contracts

| ERE IRE TEE SR SA PROC SOONER a 14

F. Elkouri and E. Elkouri, How Arbitration

MOU SI lia isco chateaecinccctintedsecknenin 14

S. Slichter, J. Healy, and E. Livernash, The Im-

pact of Collective Bargaining on Management

recede ly ee sO Lit Al Lite eee eet ae Ere ee 14

STATUTES

Title VII of the Civil Rights Act

ie thee. ee een) -......................... a ORLETIEA 2

LEGISLATIVE HISTORY —

137 Cong. Rec. S15,275-76 (1991) ................220220022.... 10, 11

137 Cong. Rec. $15,485 (1991) ................................... 11

187 Cong. Rec. H9,530 (1991) ..........0..00000 el. 11

IN THE

Suprene Court of the United States

OCTOBER TERM, 1991

No. 91-812

PACIFIC BELL, PACIFIC TELESIS GROUP,

PACIFIC TELEPHONE & TELEGRAPH COMPANY,

PACIFIC TELESIS GROUP PENSON PLAN FOR

SALARIED EMPLOYEES,

— Petitioners,

LANA PALLAS (aka Lana Hubbs),

and persons similarly situated,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE PETITION

The Equal Employment Advisory Council

(“EEAC’”), respectfully submits this brief amicus

curiae contingent upon the granting of the accom-

panying motion.' The brief supports the petition for

' A letter of consent from Pacific Bell’s counsel consenting

to the filing of EEAC’s brief has been filed with the Clerk of

the Court.

2

a writ of certiorari filed in this case by Pacific Bell,

and urges reversal of the decision below.

INTEREST OF THE AMICUS CURIAE

The interest of the amicus curiae is fully set forth

in the accompanying motion.

STATEMENT OF THE CASE

Plaintiff began employment with the predecessor of

Pacific Bell in 1967. In 1972, she had a break in serv-

ice during which she took pregnancy leave. At that

time, the company treated pregnancy leave as “per-

sonal” leave, which did not count toward retirement

service. Service credit was given for other temporary

disability leaves taken during the same period.

When the Pregnancy Discrimination Act amend-

ments to Title VII, 42 U.S.C. § 2000e(k) (“PDA”),

became effective in 1979, Pacific Bell changed its pol-

icy to give service credit for pregnancy leave taken

thereafter. It did not go back and retroactively adjust

service credit to grant credit for pregnancy leave

taken before the PDA took effect.

In 1987, Pacific Bell provided an Early Retirement

Option (ERO), which was made available to employ-

ees with 20 or more years of net credited service.

When plaintiff applied for the 1987 ERO, she was in-

formed that she was a few days short of the 20 years

of net credited service required to be eligible for the

program. Had she been given credit for the time she

spent on pregnancy leave in 1972, she would have

met the eligibility requirements.

The plaintiff’s lawsuit alleges that the failure to

count her 1972 pregnancy leave toward her ERO eli-

gibility violated Title VII as amended by the PDA.

3

The district court granted Pacific Bell’s motion to

dismiss the complaint. The district court stated that

prior to the PDA amendments to Title VII, “employer

disability benefit plans which failed to cover

pregnancy-related disabilities were not unlawful.

General Elec. Co. v. Gilbert, 429 U.S. 125, 97 S. Ct.

401 (1976).” Pet. App. at 18A.’

The district court further noted that because the

plaintiff had not preserved any claim of discrimina-

tion from 1972, “plaintiff’s cause of action arises

solely from post-1979 applications of her Net Credited

Service without adjustment to credit the period of

her 1972 pregnancy leave.” Id. Judge Jensen also

held that the policy was facially neutral, and that the

complaint was based upon 1972 conduct that had no

present legal consequences, citing United Air Lines,

Inc. v. Evans, 431 U.S. 553 (1977).

The Ninth Circuit below, in a 2-1 decision, reversed

the district court. The panel majority held that

United Air Lines did not dispose of the case. Rather,

it concluded that Bazemore v. Friday, 478 U.S. 385

(1986), was the applicable decision. As the panel

majority read Bazemore, “Although the employer was

not liable for acts of discrimination that occurred

prior to the enactment of Title VII, the Court held

that an employer could be held liable for discrimina-

tion perpetuated after the Act took effect.” Pet. App.

at 6a. The panel majority thus ruled that “Pacific

Bell is liable for its decision to discriminate against

Pallas in 1987 on the basis of pregnancy.” /d., at

6a-7a.

Judge Dumbauld dissented, stating:

* Citations to the Petitioner’s Appendix, including those to

the decisions below, are designated as Pet. App. ——.

4

[W]e confront a situation which we have no

power to alleviate or remedy. The appellee tele-

phone company has simply applied a seniority

system, which it uses as the criterion for accord-

ing many kinds of employee benefits, and appel-

lant simply did not have enough seniority to qual-

ify for the early retirement which she sought.

Pet. App. at 8a.* The dissent stressed that the com-

pany lawfully excluded personal leave in determining

service credits and that counting pregnancy leave as

personal leave was lawful until the enactment of the

PDA in 1978. Pet. App. at 9a.

Judge Dumbauld reasoned that Pacific Bell’s policy

was distinguishable from Bazemore, where a pay pol-

icy that was facially discriminatory against blacks

constituted present discrimination with each pay

check. Thus, when Pacific Bell looked at the plain-

tiff’s net credited service, it merely applied preexist-

ing seniority rules. Judge Dumbauld stated:

In the case at bar, by contrast [to Bazemore], all

that the telephone company is currently doing is

applying a bona fide seniority system, which is

not discriminatory on its face, and is specifically

authorized by Congress.

Pet. App. at 10a. The dissent thus would have af-

firmed the district court and dismissed the complaint.

* Judge Dumbauld broadly defined a seniority system as:

“a method of record-keeping and mathematical calculation

which determines how long an employee has worked for the

- employer.” Pet. App. at 6a.

5

SUMMARY OF THE REASONS

FOR GRANTING THE WRIT

This amicus curiae brief is filed to stress the

importance of the issues in this case beyond the par-

ticular employer and specific system of calculating

time in service. EEAC’s members are concerned that

the Ninth Circuit’s decision will disrupt many types

of employer and union programs that depend upon

length-of-service calculations. This could include a

whole range of seniority benefits, as well as selection

of days off, overtime distribution, pension calcula-

tions, wage adjustments and many other programs.

Predictable length-of-service calculations, by contrast,

“promote stability and certainty among employees,

furnishing a predictable method by which to measure

future employment positions.” California Brewers

Ass’s v. Bryant, 444 U.S. 598, 605-06 (1980) (dis-

senting opinion of Justice Marshall).

The decision below is based upon a faulty assump-

tion that the Petitioners can be held liable for a

“program that adopted, and thereby perpetuated, acts

of discrimination that occurred prior to enactment of

the Pregnancy Discrimination Act [PDA].” Pet.

App. at 6a-7a. In ruling that conduct that is not itself

actionable can be the basis for a discrimination claim,

the Ninth Circuit put itself at odds with the decisions

of this and other courts. See, e.g., United Air Lines

v. Evans, 431 U.S. 553 (1977): Teamsters v. United

States, 431 U.S. 324, 353 (1977); Schwabenbauer v.

Bd. of Educ. of City of Olean, T77 F.2d 837 (2d Cir.

1985); Farris v. Bd. of Edic. of City of St. Louis,

576 F.2d 765 (8th Cir. 1978).

The basic holding below is that the employer must

now give service credits for leave time that the em-

6

ployer was permitted to treat as personal leave when

the leave was taken. As this Court ruled: “to accept

the argument would require us to hold that a senior-

ity system becomes illegal simply because it allows

the full exercise of the pre-Act seniority rights of

employees of a company that discriminated before

Title -VII was [amended].” Teamsters v. United

States, 431 U.S. at 353. Thus, the conduct at issue

in this case “has no present legal consequences.”

United Air Lines, 431 U.S. at 558. The Ninth Circuit

majority ruling, however, would improperly “destroy —

or water down the vested seniority rights of employ-

ees.” Id., at 352-53.

The Ninth Circuit, moreover, improperly applied

Bazemore v. Friday, 478 U.S. 385 (1986), so as to

undercut greatly United Air Lines. Bazemore found

a violation because after Title VII was amended to

apply to state and local governments, the employer

continued to apply a facially discriminatory pay sys-

tem that paid black workers less than whites for the

same work. Here, the employer changed its leave pol-

icy immediately when the PDA came into effect.

Moreover, Bazemore did not involve a facially neutral

seniority system such as applied by Pacific Bell. For

these reasons, we urge the Court to grant the petition

for review in this case.

7

REASONS FOR GRANTING THE WRIT

THE NINTH CIRCUIT’S DECISION REQUIRING THE

EMPLOYER TO GIVE SERVICE CREDITS FOR PRE-

ACT PREGNANCY LEAVE IS CONTRARY TO PRE-

VAILING LAW, CONFLICTS DIRECTLY WITH THE

SUPREME COURT’S UNITED AIR LINES DECISION

AND WOULD GREATLY DISRUPT LEGITIMATE

LENGTH-OF-SERVICE AND SENIORITY SYSTEMS

OF EMPLOYERS GENERALLY

A. The Decision Below Conflicts With Controlling Su-

preme Court Decisions And Other Lower Court Deci-

sions Holding That Neutral Length-of-Service (Senior-

ity) Systems Do Not Have To Be Disrupted Because

Of The Effects Of Past Conduct That Has No Present

Legal Consequences

The decision below holds that Pacific Bell violated

Title VII in the following manner:

In 1987, Pacific Bell instituted a program that

adopted, and thereby perpetuated, acts of dis-

crimination which occurred prior to enactment of

the Pregnancy Discrimination Act. While the

act of discriminating against Pallas in 1972 is

not, itself, actionable, Pacific Bell is liable for its

decision to discriminate against Pallas in 1987

on the basis of pregnancy.

Pet. App. 6a-7a {emphasis added). This unique hold-

ing is of great concern to the large majority of pri-

vate employers, who have relied upon contrary deci-

sions to conclude that promotions and other scarce

employee benefits can be allocated in accordance with

neutral length-of-service and seniority systems that

cannot be challenged based upon distant allegations

that “ha[ve] no present legal consequences.” United

Air Lines, Inc. v. Evans, 431 U.S. at 558.

8

The position taken by the panel majority was re-

jected by the Supreme Court a decade and a half ago.

As the Court stated in the Teamsters decision:

[O]ur reading of the legislative history [of Title

VII] compels us to reject the Government’s broad

argument that no seniority system that tends to

perpetuate pre-Act discrimination can be “bona

fide.” To accept the argument would require us

to hold that a seniority system becomes illegal

simply because it allows the full exercise of the

pre-Act seniority rights of employees of a com-

pany that discriminated before Title VII was

enacted. It would place an affirmative obligation

on the parties to the seniority agreement to sub-

ordinate those rights in favor of the claims of

pre-Act discriminatees without seniority. The

consequences would be a perversion of the con-

gressional purpose.

431 U.S. 324, 353 (1977) (emphasis added). As the

Court explained, even a length-of-service requirement

that perpetuates the effects of pre-Act discrimination

will not violate Title VII:

Although a seniority system inevitably tends to

perpetuate the effects of pre-Act discrimination

in such cases, the congressional judgment was

that Title VII should not outlaw the use of exist-

ing seniority lists and thereby destroy or water

down the vested seniority rights of employees

simply because their employer had engaged in

discrimination prior to the passage of the Act.

Id. at 352-53.

These principles were also applied in United Air

Lines, Inc. v. Evans, 431 U.S. 553, which the district

9

court and Judge Dumbauld correctly saw as control-

ling precedent requiring dismissal of the complaint in

the instant case. As amicus curiae, EEAC urges the

Court to review the decision below in order to pre-

serve the effectiveness of United Air Lines in assur-

ing an orderly and predictable relationship in the allo-

cation of jobs and employee benefits. Failure to re-

verse the Ninth Circuit’s decision would threaten to

disrupt many valid length-of-service and seniority

systems.

United Air Lines involved a situation strikingly

similar to the instant case. The plaintiff there

worked as a flight attendant from 1966 to 1968.

When she married in 1968, she was required to resign

under United’s policy of refusing to allow its female

flight attendants to be married. In 1972, Evans was

rehired as a new employee. She was not given any

seniority credit for her prior service and “for senior-

ity purposes, she [was] treated as though she had no

prior service with United.” 431 U.S. at 555.

Evans claimed that United was guilty of a present

violation because it failed to give her credit after her

rehire for service prior to her illegally-forced resig-

nation in 1968. The Court explained that assuming

her 1968 separation violated Title VII, “the question

now presented is whether the employer is committing

a second violation of Title VII by refusing to credit

her with seniority for any period prior to February

1972 [when she was rehired].” /d. at 554. As the

district court there noted, Evans was “seeking to have

this court merely reinstate her November, 1966 se-

niority date which was lost solely by reason of her

February, 1968 resignation.” Jd. at 556 n.8.

The Supreme Court held that United was entitled

to “treat that past act as lawful after respondent

10

failed to file a [timely] charge.” 431 U.S. at 558

(emphasis added). An alleged discriminatory act that

has not been made the subject of a timely charge, the

Court held, “is the legal equivalent of a discrimina-

tory act which occurred before the statute was

passed.” Jd. Thus, the act was “merely an unfor-

tunate event in history which has no present legal

consequences.” Id. (emphasis added ).*

The Ninth Circuit here, however, mistakenly held

that the United Air Lines line of cases does not apply,

and that this case is controlled by Bazemore v. Fri-

day, 478 U.S. 385 (1986). In Bazemore, however, no

neutral seniority or length-of-service policy was in-

volved. Indeed, Bazemore distinguished Evans because

the plaintiff in the latter case “had made no allegation

that the seniority system itself was intentionally de-

signed to discriminate.” 478 U.S. at 396 n.6.° By

' Accord, Schwabenbauer v. Bd. of Educ. of City of Olean,

777 F.2d 837, 840 (2d Cir. 1985) (In computing whether

employee completed probationary period, employer was not

required to credit plaintiff’s seven months of maternity leave

taken prior to the 1972 amendments applying Title VII to

state and local governments); Farris v. Board of Ed. of

City of St. Louis, 576 F.2d 765 (8th Cir. 1978) (No violation

even though failure to credit pre-1972 mandatory maternity

leave kept plaintiff one step behind in salary schedule).

* Similarly, in the instant case, there can be no valid claim

that the seniority system was adopted with a discriminatory

intent. On a related matter, Section 112 of the recently-

enacted Civil Rights Act of 1991 has no applicability to this

case. In the first place, Section 118 is inapplicable because

it does not apply to lawsuits pending when it was enacted,

but shall only “take effect upon enactment.” 137 Cong. Rec.

S 15276 (daily ed. Oct. 25, 1991). See Bowen v. Georgetown

Univ. Hosp., 109 S.Ct. 468, 471 (1988).

In addition, Section 112 only reverses the decision in

Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989).

11

contrast, as the Bazemore decision stated, the policy

there was discriminatory on its face. The employer

applied different wage scales to black workers than

to whites before the 1972 effective date of Title VII,

and continued to pay those discriminatory wages af-

ter it became subject to Title VII. In rejecting the

application of United Air Lines to this case, the court

of appeals reasoned that Pacific Bell’s Early Retire-

ment Opportunity was a new benefit program insti-

tuted long after the enactment of the PDA, and that

the system was not facially neutral because it dis-

criminated against women who had taken pregnancy

leave before the PDA became effective in 1979. Pet.

App. at 6a.

But the Ninth Circuit’s reasoning is fatally flawed.

The conduct it found illegal—the employer’s failure

to give service credit for pregnancy leave—occurred

Section 112 is not a substantive provision; it merely extends

Title VII’s charge-filing period. There is no question about

the timeliness of the charge in the instant case. Further,

Section 112 is limited to cases where, unlike here, it is alleged

that a seniority system “has been adopted for an intentionally

discriminatory purpose.” Only in those cases does Section 112

extend the time for the filing of a timely charge beyond the

date the system is adopted to include the date when the indi-

vidual becomes subject to the system or is injured by its

application. See 137 Cong. Rec. S 15275 (daily ed. Oct. 25,

1991).

As to substantive matters, it is clear that Section 112

“should not be interpreted to affect the sound rulings 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. S 15485 (daily ed. October 30, 1991)

(Sen. Danforth) ; and 137 Cong. Rec. H 9530 (daily ed. Nov.

7, 1991) (Rep. Edwards). Ricks, of course, reaffirmed United

Air Lines v. Evans.

12

not in 1987, but in 1972, when it was lawful. All Pa-

cific Bell did in 1987 was apply a facially neutral

length-of-service system based on the service credits

for which employees were eligible based upon prevail-

ing law in effect when the personal leave was taken.

_As the dissent put it, the Company “has simply ap-

plied a seniority system, which it uses as the criterion

for according many kinds of employee benefits, and

the appellant simply did not have enough seniority to

qualify for the early retirement which she sought.”

Pet. App. at 8a.

The Supreme Court held in United Air Lines that

there could be no violation premised on the fact that

at a much later date, the employer made a seniority

calculation that excluded from prior service time dur-

ing which the employee presumably would have

worked had she not been illegally discharged because

she became married. Such conduct was illegal when

it occurred. Thus, there is an even stronger argument

in the instant case to apply the rationale of United

Air Lines, because the treatment of maternity leave

as “personal leave” did not violate Title VII until the

PDA became effective in 1979.

The decision below thus directly conflicts with

United Air Lines and is likely to cause extreme con-

fusion for large employers with operations in the

Ninth and other circuits. Unless reversed, the decision

will make it impossible for employers to know when

previously legal or time-barred allegations might re-

surface to jeopardize benefit calculations or the allo-

cation of job rights based upon relative length-of-

service.

13

B. The Decision Below Will Disrupt The Administration

of Seniority and Length-of-Service Systems, Causing

Conflict With Title VII’s “Special Treatment” of Such

Systems

If left standing, the court of appeals’ decision in

this case will disrupt seniority and length-of-service

requirements in a manner directly contrary to Con-

gressional intent. This disruption is likely to affect

many types of employer and union programs that de-

pend upon length-of-service calculations.

In Title 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 Bro. of

Teamsters v. United States, 481 U.S. 324, 352-53

(1977).

Although Title VII does not define the term “sen-

iority system,” this Court has held that the term

should be defined broadly.

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 em-

ployment increase. .. [T]he principal feature of

any and every “seniority system” is that prefer-

ential 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

14

future emrioyment positions.” 444 U.S. at 614 (dis-

senting opinion by Justice Marshall).

The use of length-of-service requirements perme-

ates corporate labor relations policies. For example,

Collective agreements generally provide for the

recognition of seniority in several, and often

many, aspects of the employment relationship.

Among these are promotions, layoffs, rehiring,

shift preference, transfers, vacations, days off,

and overtime fork.

F. Elkouri and E. Elkouri, How Arbitration Works

590 (4th ed. 1985). Also, over the years, there has

been:

a dramatic rise in the number and types of bene-

fit programs. Almost without exception, entitle-

ment 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, and E. Livernash, The Impact

of Collective Bargaining on Management 105

(1960).°

°* The authors provide an extensive listing of areas affected

by length of service requirements: selection of days off;

overtime distribution; vacation privileges; parking privi-

leges; 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 service awards. 7d. at 106-12. For other examples,

see Collective Bargaining Negotiations and Contracts (BNA)

at 44:51-44:52 (insurance); 48:51-48:56 (retirement, an-

nuity and death benefits); 58:7 (holiday pay); 91:3-91:5

(vacations).

15

As a representative of a large and diverse group of

major employers who use and administer such sys-

tems on a daily basis, EEAC urges this Court to con-

sider the disruptive impact its decision in this case

could have on the whole range of employer programs

based upon length-of-service and seniority calcula-

tions. Before compelling employers, in effect, to re-

calculate virtually all employee benefit and seniority

rights, as they will either have to do or risk discrim-

ination findings based upon outdated or time-barred

claims if this decision stands, EEAC urges the Court

to grant the petition and review the decision of the

court below.

CONCLUSION

For the foregoing reasons, the amicus curiae

EEAC urges the Court to grant Pacific Bell’s peti-

tion for writ of certiorari.

Respectfully submitted,

ROBERT E. WILLIAMS

DouGLas S. MCDOWELL *

McGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment Advisory

Council

December 16, 1991 * Counsel of Record