No. 07-543

IN THE

Supreme Court of the United States___________

AT&T CORPORATION,Petitioner,

v.

NOREEN HULTEEN, ET AL.,Respondents.

————

On Writ of Certiorari to theUnited States Court of Appeals

for the Ninth Circuit————

BRIEF OF THE NATIONAL WOMEN’S LAWCENTER, ET AL. AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS————

MARCIA D. GREENBERGERJOCELYN SAMUELSDINA R. LASSOWNATIONAL WOMEN’SLAW CENTER11 Dupont Circle, NW,Ste. 800Washington, DC 20036202-588-5180

MELISSA HARTAssociate Professor of Law(Counsel of Record)UNIVERSITY OFCOLORADO LAWSCHOOLUCB 401Wolf Law BuildingBoulder, CO 80309303-735-6344

November 14, 2008

ii

QUESTIONS PRESENTED

1. Whether AT&T engaged in a currentviolation of Title VII when it implemented a faciallydiscriminatory seniority system to set retiringworkers’ pensions.

2. Whether construing Title VII, as amendedby the Pregnancy Discrimination Act of 1978 (PDA),to prohibit an employer from relying on pre-PDAservice crediting decisions in making post-PDApension calculations gives the PDA an impermissibleretroactive effect.

iii

TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................v

INTEREST OF AMICI CURIAE.................................1

STATEMENT OF THE CASE.....................................1

SUMMARY OF ARGUMENT.....................................3

ARGUMENT................................................................6

I. AT&T Discriminated Against RespondentsBoth When They Took Their PregnancyLeave and When It Set Their PensionBenefits..............................................................6

A. Pregnancy Discrimination WasPervasive Before And After Title VIIWas Enacted.............................................7

B. Pregnancy Discrimination Was WidelyConsidered to Violate Title VII WhenRespondents Took Their PregnancyLeave.......................................................13

C. Respondents Have Properly ChallengedAT&T’s Unlawful Setting of TheirPension Benefits.....................................17

D. The Continued Prevalence ofPregnancy Discrimination MakesStrong Enforcement of Title VIIEssential.................................................20

II. Pension Discrimination Has SeriousConsequences for Women...............................22

A. Women Live Longer and Have FewerRetirement Resources Than Men..........23

B. Disparities In Retirement IncomeExacerbate The Harm Women SufferFrom Pay Discrimination…………...….25

iv

CONCLUSION..........................................................27

APPENDIX A………………………………………..…1a

APPENDIX B…………………………………………18a

v

TABLE OF AUTHORITIES

CASES

Bradwell v. Illinois, 83 U.S. 130 (1873)..............7

Cleveland Board of Educ. v. LaFleur,414 U.S. 632 (1974).........................................10

EEOC v. Children’s Hospital,415 F.Supp. 1345 (W.D. Pa. 1976)..................15

General Electric v. Gilbert,429 U.S. 125 (1976)...............................6, 12, 16

Holthaus v. Compton & Sons, Inc.,514 F.2d 651 (8th Cir. 1975)............................15

Hutchison v. Lake Oswego SchoolDistrict, 519 F.2d 961 (9th Cir. 1975)..............15

Jacobs v. Martin Sweets Co.,550 F.2d 364 (6th Cir. 1977)............................15

Leach v. Board of Reviewof Unemployment Compensation,184 N.E. 2d 704 (Ohio Ct. C.P. 1962)...............9

Lorance v. AT&T Technologies, Inc.,490 U.S. 900 (1989).........................................19

Muller v. Oregon, 208 U.S. 412 (1907)................7

Newport News Shipbuildingand Dry Dock Co. v. EEOC,462 U.S. 669 (1983).........................................17

Nashville Gas Co. v. Satty,434 U.S. 136 (1977)...................................11, 17

Orr v. Albuquerque,531 F.3d 1210 (10th Cir. 2008)........................21

Pallas v. Pacific Bell,940 F.2d 1324 (9th Cir. 1991).....................3, 18

vi

Singer v. Mahoning CountyBoard of Mental Retardation,379 F.Supp. 986 (N.D. Ohio 1974),aff’d, 519 F.2d 748 (6th Cir. 1975)..................15

Turner v. Department of EmploymentSecurity, 423 U.S. 44 (1975)...........................10

Wetzel v. Liberty Mutual Insurance Co.,511 F.2d 199 (3d Cir. 1975)............................15

STATUTES AND LEGISLATIVE HISTORY

42 U.S.C. § 2000e et seq ............................passim

Comm. on Labor and Human Resources,U.S. Senate, 96th Cong., LegislativeHistory of the Pregnancy DiscriminationAct of 1978, Pub. L. No. 95-555 (1980).........6, 9

H.R. REP. NO. 92-238 (1971)...............................13

H.R. REP. NO. 95-948 (1978)...................14, 16, 17

S. REP. NO. 92-415 (1971)...................................13

S. REP. NO. 95-331 (1977).............................15, 16

OTHER AUTHORITIES

29 C.F.R. § 1604.10(b) (1973)............................14

Francine D. Blau et al., THE ECONOMICS

OF WOMEN, MEN, AND WORK

(5th ed. 2006)..................................................26

Bureau of Labor Statistics, U.S. Dep’tof Labor, Highlights of Women’sEarnings in 2007 (Oct. 2008).........................25

Carmen Denavas-Walt, Bernadette D. Proctorand Jessica C. Smith, U.S. CensusBureau, Current Population Reports,

vii

P60-235, Income, Poverty and HealthInsurance Coverage in the United States:2007 (U.S. Gov’t Printing Office 2008)..........25

Equal Employment Opportunity Commission,Pregnancy Discrimination Charges, EEOC& FEPAs Combined: FY1997–FY2007(last modified on February 26, 2008),http://www.eeoc.gov/stats/ pregnanc.html.....20

Equal Employment Opportunity Commission,Maternity Store Giant to Pay $375,000to Settle EEOC Pregnancy Discriminationand Retaliation Lawsuit (January 8, 2007),http://www.eeoc.gov/press/1-8-07.html..........20

Lucinda M. Finley, Transcending EqualityTheory: A Way out of the Maternityand the Workplace Debate,86 COLUM. L. REV. 1118 (1986)......................12

Judith G. Gonyea & Nancy R. Hooyman,Reducing Poverty Among OlderWomen: Social Security Reform andGender Equity, 86 FAMILIES IN SOCIETY:J. CONTEMP. HUM. SERVICE 338 (2005)..........24

Jane A. Halpert, Midge L. Wilson &Julia L. Hickman, Pregnancy as a Sourceof Bias in Performance Appraisals,14 J. ORG. BEHAV. 649 (Dec. 1993).................21

Cindy Hounsell, The Female Factor 2008:Why Women Are at Greater Financial Riskin Retirement and How Annuities

Can Help (2008)..............................................23

Richard Johnson, The Gender Gap inPension Wealth: Is Women’s Progress inThe Labor Market Equalizing RetirementBenefits?, Urban Institute Brief Series No. 1

viii

(March 1999).....................................................23

Sheila B. Kamerman, Alfred J. Kahn & PaulKingston, MATERNITY POLICIES AND

WORKING WOMEN (1983)............................9, 11Catharine A. MacKinnon, Reflections on Sex

Equality Under Law, 100 YALE L. J. 1281(1991)...............................................................11

Courtni E. Molnar, Has the Millenium YetDawned?: A History of Attitudes TowardPregnant Workers in America,12 MICH. J. GENDER & L. 163 (2005)................8

National Partnership for Women and Families,THE PREGNANCY DISCRIMINATION ACT:WHERE WE STAND THIRTY YEARS LATER

(2008).....................................................6, 20, 21

Stephen J. Rose & Heidi I. Hartmann,Institute for Women’s Policy Research,Still a Man’s Labor Market:The Long-Term Earnings Gap (2004)...........26

United States Census Bureau, CurrentPopulation Survey, http://pubdb3.census.gov/macro/032008/pov/new01_100_01.htm.........................................24

Wendy W. Williams, associate professor,Georgetown University Law Center,Testimony, U.S. Senate, Subcommittee onLabor of the Committee on Human Resources,Discrimination on the Basis of Pregnancy,(1977) (Report of Hearings)(Washington, D.C.; GPO, 1977)......................12

Women’s Bureau, Office of the Secretary,U.S. Dept. of Labor, Bulletin No. 240,Maternity Protection of Employed Women(1952)................................................................8

INTEREST OF AMICI CURIAE

The National Women’s Law Center (NWLC) isa nonprofit legal advocacy organization dedicated tothe advancement and protection of women’s legalrights. Since 1972, NWLC has worked to secureequal opportunity for women in the workplace.Pregnancy discrimination and pension inequities arefundamentally at odds with workplace equality.NWLC has prepared or participated in thepreparation of numerous amicus briefs in casesinvolving sex discrimination in employment beforethis Court.1 It is joined in filing this brief by 35organizations that share a longstanding commitmentto civil rights and equality in the workplace for all.The individual organizations are described inAppendix A.

STATEMENT OF THE CASE

The individual respondents in this case are fourwomen who were or are long-term employees ofAT&T and its subsidiary PT&T who took pregnancyleave between 1968 and 1976. AT&T’s policy duringthat time was to deny full service credit forpregnancy-related leaves even though it gave suchcredit for other disability leaves.

1 The parties have consented to the filing of this brief. Nocounsel for a party authored this brief in whole or in part, andno counsel or party made a monetary contribution intended tofund the preparation or submission of this brief. No personother than amicus curiae, its members, or its counsel made amonetary contribution to its preparation or submission.

2

Respondent Noreen Hulteen was required tobegin her leave on November 11, 1968, two monthsbefore she gave birth, because her immediatesupervisor told her that her “body was not ‘hiding’the condition.” (Testimony of Noreen Hulteen Beforethe Senate Judiciary Committee, September 23,2008, attached hereto as Appendix B (hereinafter“Hulteen Testimony”); J.A. 40 (¶ 25). After her childwas born, AT&T required her to also treat leave sheneeded for unrelated surgery as personal rather thandisability leave. J.A. 40 (¶ 26-27). Had her leavebeen classified as disability leave, Hulteen wouldhave received full or half pay, and her employerwould have paid for her medical insurance. HulteenTestimony; Upon her return to work, she lost 210days of service credit that she would have received ifshe had been on disability leave. J.A. 40-41 (¶28).

Respondent Linda Porter was also required tobegin her pregnancy leave two months before shegave birth on July 5, 1968. She took only six orseven weeks off following the birth. Porter lost 73days of service credit that she would have receivedhad she been allowed to work longer and/or had herleave been treated as disability leave. J.A. 44 (¶¶ 48-50).

Respondent Eleanora Collet had two childrenwhile working for AT&T’s subsidiary, one onSeptember 3, 1974, and one on December 11, 1975.She lost 261 days of service credit because of her twopregnancy leaves. J.A. 42-43 (¶¶ 36-39).

Respondent Elizabeth Snyder’s child was born onJuly 26, 1974. She was not able to return to work

3

until November 3, 1974 because of medicalcomplications related to her pregnancy. She lost 67days of service credit that she would have received ifher leave had been treated as disability leave. J.A.45 (¶¶57-59).

After Hulteen, Collet and Snyder retired in 1994,1998 and 2000 (Porter has not yet retired), J.A. 41-43, 46 (¶¶ 33, 45, 64), AT&T decided to use theservice credits it had calculated after they took theirpregnancy leave—the leave which the companytreated less favorably than leave taken for otherdisabilities—in setting their pension benefits. Itargues that it was not discriminating against thewomen in doing so because they took their pregnancyleave prior to the effective date of the PregnancyDiscrimination Act of 1978, 42 U.S.C. § 2000(e)(k)(PDA), before which, the company claims, thediscrimination was lawful.

The Court of Appeals for the Ninth Circuit,sitting en banc, rejected AT&T’s argument, re-affirmed its decision in Pallas v. Pacific Bell, 940F.2d 1324 (9th Cir. 1991), that virtually identicalconduct was unlawful, and concluded that AT&Tviolated Title VII of the Civil Rights Act of 1964, 42U.S.C. § 2000e et seq., when it calculated pensionsusing a standard that gave less credit for pregnancyleave than for other kinds of leave. 498 F.3d 1001(2007).

SUMMARY OF ARGUMENT

Pregnancy discrimination is one of the mostbasic and pervasive forms of sex discrimination faced

4

by working women. Respondents here have sufferedsuch discrimination twice. First, when they tookpregnancy leave they were denied the pay and otherbenefits that were allowed for all other forms ofdisability leave. Respondents were subjected to asecond round of discrimination when, because oftheir pregnancy leave, they were awarded lowerpension benefits than colleagues who had worked thesame amount of time as they had. Thesediscriminatory pension benefits will harmrespondents for the rest of their lives.

AT&T seeks to evade liability for the secondround of discrimination—the discrimination that ischallenged here—by focusing on the technicalities ofits pension calculations. Essentially, the companyargues that it was “entirely lawful,” Petr. Br. at 2, toreduce respondents’ service credits when theyreturned from their pregnancy leave before the PDA.AT&T then asserts that the service creditdeterminations at those earlier dates madeinevitable the reduction in respondents’ pensions.But the company made a choice not to re-examinerespondents’ service credit reductions when itcalculated their pensions years later, even though itacknowledges that they were unlawful under thePDA. It should not be allowed to circumvent the lawin this fashion.

As an initial matter, AT&T’s arguments areflawed because its treatment of respondents whenthey took their pregnancy leave was not “entirelylawful.” In the years following the enactment of TitleVII, a growing consensus among courts, statelegislatures and the Equal Employment Opportunity

5

Commission (EEOC) recognized that women whowere discriminated against because of pregnancywere subjected to illegal sex discrimination. It wasduring this time of emerging consensus thatrespondents took their pregnancy leaves.

Since AT&T’s premise for the lawfulness of itspension calculations is not valid, it cannot supportthe validity of those calculations. Moreover, thechallenged conduct in this case is the setting ofpensions in 1994 and later, more than sixteen yearsafter any possible doubt about the lawfulness of anyform of pregnancy discrimination was ended by thepassage of the PDA.

The law is clear that a facially discriminatoryseniority system—like that of AT&T—may bechallenged when a person is harmed by theapplication of the system. That is precisely whatrespondents have done here. They filed timelycharges to challenge the current discrimination thatis the subject of this case: AT&T’s decision to rely onpreviously calculated service credits in calculatingrespondents’ current pension benefits.

Especially in light of the continued prevalence ofpregnancy discrimination in the workplace, it iscritical that the laws prohibiting such discriminationbe effectively enforced. Through enactment of thePDA, Congress intended to fully eradicate theexistence and consequences of pregnancydiscrimination. The technical end-run that AT&Tattempts to make around the dictates of the law isinconsistent with Congressional intent and shouldnot be permitted. Equal treatment in the workplace

6

demands no less, and the decision of the NinthCircuit recognizing these principles should beaffirmed.

ARGUMENT

I. AT&T Discriminated Against RespondentsBoth When They Took Their Pregnancy Leaveand When It Set Their Pension Benefits

As Congress recognized in passing the PDA,“discrimination against pregnant women is one ofthe chief ways in which women’s careers have beenimpeded and women employees treated like second-class employees.” Comm. on Labor and HumanResources U.S. Senate, 96th Cong., LegislativeHistory of the Pregnancy Discrimination Act of 1978,Pub. L. No. 95-555, at 25 (1980) (Testimony of Rep.Augustus Hawkins) (hereinafter “Legislative Historyof the PDA”). Accordingly, to be effective, legalprotection for women against discrimination in theworkplace must encompass a prohibition againstpregnancy discrimination.

This commonsense understanding of pregnancydiscrimination as a fundamental form of sexdiscrimination was widely recognized by the federaldistrict courts, the courts of appeals and the EEOCafter the passage of Title VII, and was quicklyrestored by Congress with the passage of thePregnancy Discrimination Act in 1978 after theSupreme Court’s ruling in Gilbert v. General ElectricCo., 429 U.S. 125 (1976). Even with this legalprotection, discrimination against women when theybecome pregnant remains one of the most prevalent

7

forms of employment discrimination, and complaintsabout pregnancy discrimination are increasing. SeeNational Partnership for Women and Families, THE

PREGNANCY DISCRIMINATION ACT: WHERE WE STAND

THIRTY YEARS LATER 10 (2008) (hereinafter “WHERE

WE STAND”). Effective enforcement of Title VII,including its protection against discrimination on thebasis of pregnancy, is therefore essential. Employersmust not be permitted to penalize women for bearingchildren or to treat their long-term female employeesas second-class citizens in setting their pensionbenefits.

A. Pregnancy Discrimination Was PervasiveBefore And After Title VII Was Enacted

Women’s child-bearing capacity has been used formany years to justify their unequal treatment atwork. When the Supreme Court upheld a lawprohibiting women from being lawyers in 1873,Justice Joseph Bradley explained in his concurringopinion that: “The natural and proper timidity anddelicacy which belongs to the female sex evidentlyunfits it for many of the occupations of civil life. . . .The paramount destiny and mission of women are tofulfill the noble and benign offices of wife andmother.” Bradwell v. Illinois, 83 U.S. 130, 141(1873).

A century ago, in the landmark case of Muller v.Oregon, 208 U.S. 412 (1907), the Court upheld a lawestablishing maximum hours of work for women,explaining “that women’s physical structure and theperformance of maternal functions place her at a

8

disadvantage in the struggle for subsistence isobvious. This is especially true when the burdens ofmotherhood are upon her.” Id. at 421.

By the middle of the twentieth century, when thenumber of women in the workforce was increasingsteadily, women were still likely to leave their jobswhen they became pregnant. Although some leftvoluntarily, many left either because they wereforced to by their employers or because they knewthat it would be only a matter of time before theywould be required to leave. Courtni E. Molnar, Hasthe Millenium Yet Dawned?: A History of AttitudesToward Pregnant Workers in America, 12 MICH. J.GENDER & L. 163, 170 (2005) (hereinafter “AttitudesToward Pregnant Workers”).

The stereotype that women could not and shouldnot work when they were pregnant was deeplyengrained. During the 1940s, even the Women’sBureau of the Department of Labor, which wasintended to advocate for women in the workplace,recommended that women stop working six weeksbefore their due dates and continue to stay out ofwork for at least two months after the birth.Women’s Bureau, Office of the Secretary, U.S. Dept.of Labor, Bulletin No. 240, Maternity Protection ofEmployed Women, at 7 (1952). Numerous states andemployers based their mandatory policies on this andother similar recommendations, with theconsequence that women’s ability to make their ownjudgments about when and whether to leave orreturn to work was essentially eliminated.“Pregnant women were considered unavailable forwork for a set period of time before and after

9

childbirth, whether or not they were willing to work.”Attitudes Toward Pregnant Workers, at 172.

Many of the discriminatory attitudes towardpregnant women at work derived from a generalsocial discomfort with visibly pregnant women inpublic places. “Having an obviously pregnantwoman present in the workplace causedembarrassment and discomfort for other employees.”Id. at 171. See also Sheila B. Kamerman, Alfred J.Kahn & Paul Kingston, MATERNITY POLICIES AND

WORKING WOMEN, at 35 (1983) (hereinafter“MATERNITY POLICIES AND WORKING WOMEN”). Onewoman who was forced during the 1940s and 1950sto take leave with each of her pregnancies, often wellbefore she wanted or needed to, explained “a lot ofwomen I knew were made to leave as soon as theyshowed, often in their third month.” Id. at 2. In a1962 case, a visibly pregnant waitress was forced totake a leave of absence when her employer told her“that she could not continue working because herappearance was unseemly.” Leach v. Bd. Of Reviewof Unemployment Comp., 184 N.E. 2d 704, 705 (OhioCt. C.P. 1962).

Thus, during the decades immediately precedingenactment of Title VII, it was the norm for employersto impose mandatory leave policies that requiredwomen to leave work at a certain point in thepregnancy, regardless of the individual woman’sinterest in remaining at work, her financial need towork, or her ability to do her job. MATERNITY

POLICIES AND WORKING WOMEN, at 4. In fact, “priorto the enactment of Title VII of the Civil Rights Actof 1964, most employers discharged a woman as soon

10

as she became obviously pregnant.” LegislativeHistory of the PDA, at 25.

This treatment continued after Title VII waspassed, as illustrated by the cases that came beforethe Court in the 1970s. In Utah, the stateunemployment compensation system declaredpregnant women ineligible for benefits starting 12weeks before their due dates and continuing until sixweeks after the birth of the child. Turner v.Department of Employment Security, 423 U.S. 44, 44(1975) (striking down the provision as a violation ofFourteenth Amendment due process). TheCleveland, Ohio Board of Education requiredpregnant school teachers to go on unpaid maternityleave beginning five months before their due dates.Cleveland Board of Educ. v. LaFleur, 414 U.S. 632,634 (1974) (striking down the provision as a violationof due process). The Board also prohibited a teacherfrom returning “until the beginning of the nextregular school semester which follows the date whenher child attains the age of three months.” Id. at 635.Moreover, the Board did not guarantee these newmothers re-employment, and it considered failure tocomply with the mandatory leave policies a cause fordismissal. Id.

AT&T did not have analogous written policies,but two of the respondents here were forced ontomaternity leave. In November 1968, two monthsbefore the birth of her child, Noreen Hulteen “wastold by [her] immediate boss to begin [her] pregnancyLeave of Absence (LOA), as [her] body was not‘hiding’ the condition.” Hulteen Testimony. Another

11

respondent, Linda Porter, was also required to beginher leave two months early. J.A. 44 (¶¶ 48-50).

Discrimination against new mothers onlyexacerbated the harm caused by employers’ hostileattitude towards pregnancy. Many new motherswould return to work to find themselves at thebottom of the career ladder, regardless of theirprevious experience. See MATERNITY POLICIES AND

WORKING WOMEN, at 35-36. Indeed, it was just sucha policy of removing accumulated seniority that thisCourt confronted and declared unlawful in NashvilleGas Co. v. Satty, 434 U.S. 136 (1977). When NoraSatty returned to work after her pregnancy leave,pursuant to company policy she had lost all of herseniority rights. Id. at 139. She was given atemporary position at a lower salary, andunsuccessfully bid on three permanent positions. Id.In each case, Satty would have been awarded the jobif she had not lost her accumulated seniority. Id.

As shown by this history, one of the most obviousforms of workplace discrimination that women facedboth before and after Title VII was passed wasdiscrimination based on their capacity to bearchildren and their status as pregnant women andmothers.2 “The fact that women bear children and

2 The legislative history of Title VII includes no discussionabout the scope of the sex discrimination that was prohibited.The bill originally proposed did not include “sex”; the categorywas added on the floor of the House at the end of thedeliberations by Representative Howard Smith of Virginia, whoapparently hoped it would be sufficiently controversial that itwould derail the entire bill. See, e.g., Catharine A.MacKinnon, Reflections on Sex Equality Under Law, 100 YALE

12

men do not has been the major impediment towomen becoming fully integrated into the publicworld of the workplace.” Lucinda M. Finley,Transcending Equality Theory: A Way Out of theMaternity and the Workplace Debate, 86 COLUM. L.REV. 1118, 1119 (1986). Testifying before Congressin 1977, one scholar observed that:

At the very core of the stereotypes whichhave resulted in irrational impedimentsto employment opportunity for womenare assumptions about pregnancy—bothits medical characteristics and physicaleffects, and, more broadly, assumptionsabout its implications for the role ofwomen in society and in the labor force.Indeed, it is fair to say that most of thedisadvantages imposed on women, in thework force and elsewhere, derive fromthis central reality of the capacity ofwomen to become pregnant and the realand supposed implications of thisreality.

Wendy W. Williams, associate professor, GeorgetownUniversity Law Center, Testimony, U.S. Senate,Subcommittee on Labor or the Committee on HumanResources, Discrimination on the Basis of Pregnancy,(1977) (Report of Hearings) (Washington, D.C.; GPO,1977), at 123. As Justice Stevens recognized in hisdissenting opinion in Gilbert, “it is the capacity tobecome pregnant which primarily differentiates thefemale from the male.” 429 U.S. at 162.

L. J. 1281, 1283-84 (1991). Instead, the law passed, and sexdiscrimination became illegal.

13

B. Pregnancy Discrimination Was WidelyConsidered to Violate Title VII WhenRespondents Took Their PregnancyLeave

Congressional action, court decisions, andguidance from the Equal Employment OpportunityCommission all informed employers by the early1970s that sex discrimination was a problem to begiven serious attention, and that pregnancydiscrimination was most certainly part of that ill.

In 1972, when Congress amended Title VII toextend its coverage to government employees, it alsomade a strong statement that “discriminationagainst women is no less serious than other forms ofprohibited employment practices and is to beaccorded the same degree of social concern given toany type of unlawful discrimination.” H.R. REP. NO.92-238, at 5 (1971). Both the House and the Senatereports commended the efforts of the EEOC andnoted that many people still viewed sexdiscrimination as “morally and physiologicallyjustifiable.” Id.; S. REP. NO. 92-415, at 8 (1971).

Close on the heels of this congressionalaffirmation of the EEOC’s importance, theCommission issued guidelines stating clearly thatdiscrimination based on pregnancy or relatedconditions was sex discrimination. The EEOCguidelines, the agency’s formal statement on theissue, provided that:

14

[d]isabilities caused or contributed to bypregnancy, miscarriage, abortion,childbirth, and recovery therefrom are,for all job-related purposes, temporarydisabilities and should be treated as suchunder any health or temporary disabilityinsurance or sick leave plan available inconnection with employment. Written andunwritten employment policies . . . formalor informal, shall be applied to disabilitydue to pregnancy or childbirth on thesame terms and conditions as they areapplied to other temporary disabilities.

29 C.F.R. § 1604.10 (1973).

All seven federal circuit courts that consideredpregnancy discrimination claims under Title VII inthe early 1970s understood that pregnancydiscrimination was sex discrimination. By the timeof the PDA’s enactment, eighteen district courtopinions had concluded that pregnancydiscrimination claims were encompassed by theprohibition against sex discrimination. See H.R.REP. NO. 95-948, at 2 (1978). There was only onedistrict court that reached a different conclusion.See Brief of the Center for Reproductive Rights asAmicus Curiae in Support of Respondent at 6 n.1(collecting cases).

These decisions, from around the country, foundmany different forms of pregnancy discrimination toviolate Title VII. For example, courts foundviolations of federal law when employers forcedwomen to take mandatory pregnancy leave. See,

15

e.g., Singer v. Mahoning County Bd. Of MentalRetardation, 379 F.Supp. 986 (N.D. Ohio 1974), aff’d,519 F.2d 748 (6th Cir. 1975). Employees who werefired when they became pregnant successfullychallenged their terminations under Title VII. See,e.g., Jacobs v. Martin Sweets Co., 550 F.2d 364 (6th

Cir. 1977); Holthaus v. Compton & Sons, Inc., 514F.2d 651 (8th Cir. 1975). Denial of sick leave benefitsto pregnant women was also found to violate the law.EEOC v. Children’s Hosp. 415 F.Supp. 1345 (W.D.Pa. 1976); Hutchison v. Lake Oswego School Dist., 519F.2d 961 (9th Cir. 1975). Similarly, denial ofregularly available disability leave for womentemporarily out of work in connection with apregnancy was found to be illegal. Wetzel v. LibertyMut. Ins. Co., 511 F.2d 199 (3d Cir. 1975). In all ofthe foregoing decisions, the courts assumed,generally without much discussion, that pregnancydiscrimination was sex discrimination that wasprohibited under Title VII.

In addition, by the 1970s, 25 states interpretedtheir fair employment practices laws to prohibitdiscrimination based on pregnancy and relatedconditions. Many states did so even though theparticular state law, like Title VII at the time, didnot specifically mention pregnancy. See S. REP. NO.95-331, at 3 (1977).

Thus, by the early 1970s, state and federal courtsaround the country, as well as the EEOC, recognizedthat discrimination on the basis of pregnancy wasunlawful sex discrimination. As Congressunderstood in considering the PDA, “[t]heassumption that women will become pregnant and

16

leave the labor force leads to the view of women asmarginal workers, and is at the root of thediscriminatory practices which keep women in low-paying and dead-end jobs.” H.R. REP. 95-948 at 3.Given that this stereotyping was central to thediscrimination women faced in the workplace,“failure to address discrimination based onpregnancy, in fringe benefits or in any otheremployment practice, would prevent the eliminationof sex discrimination in employment.” S. REP. 95-331, at 3.

It was against this legal backdrop, in whichpolicymakers and courts around the country weredeveloping a consensus understanding thatpregnancy discrimination was a central aspect of sexdiscrimination against working women, that AT&Tmaintained its policy of treating pregnancy leave lessfavorably as “personal” leave, rather than as“disability” leave. As a result, when respondentsreturned from their mostly unpaid pregnancy leavein the late 1960’s and the 1970’s, the companyrecalculated their service credits to give them lessaccumulated seniority.

In 1976, when the Supreme Court examined thequestion of how to treat pregnancy discriminationunder Title VII, it opted for a formalisticinterpretation of the term “sex” that ignored therealities faced by working women. In Gilbert, theCourt concluded that discrimination on the basis ofpregnancy through the denial of pregnancy-relateddisability benefits was not sex discrimination. 429U.S. at 145-46.

17

The congressional response to Gilbert was swiftand direct: within just three months, legislation wasproposed that would not only correct the SupremeCourt’s specific holding in that case, but also itsformalistic approach to assessing whether employerconduct is illegal discrimination. See, e.g., H.R. REP.95-948, at 2, 4; Newport News Shipbuilding and DryDock Co. v. EEOC, 462 U.S. 669, 676 (1983). ThePDA was enacted not long after, in 1978.

Moreover, just a year after deciding Gilbert, thisCourt narrowed its scope with its decision in Satty.In Satty, it concluded that a policy that deniedaccumulated seniority to women who were absentfrom work because of childbirth was unlawfulbecause it had a disparate impact on women. 434U.S. at 139. Satty distinguished Gilbert on theground that the denial of accumulated seniorityimposed a burden on women not felt by men, whilethe limitation on disability coverage at issue inGilbert simply declined to offer to women a benefitthat it did not and could not offer to men. Id. at 142.

C. Respondents Have Properly ChallengedAT&T’s Unlawful Setting of TheirPension Benefits

AT&T’s argument to the Court rests on thepremise that its reduction in respondents’ pensionbenefits many years later was permissible becausepregnancy discrimination was “entirely lawful” atthe time respondents went on leave. But thatpremise does not hold up in light of the consensusthat had developed before 1976 and the decision in

18

Satty. As discussed in Respondents’ Brief, AT&T’spolicy of denying women on pregnancy leave theright to accumulate seniority is controlled by, andwas prohibited by, the Court’s decision in Satty.Resp. Br. at 45-46.

Even if AT&T is correct that its conduct fellunder Gilbert, not Satty, then only for a very briefperiod—from December 1976, after Gilbert wasdecided, until the PDA’s reversal of that decisionwent into full effect in April 1979—could AT&T’streatment of respondents even arguably have beenconsidered to be lawful. None of the respondentshere took their leave during that time.

Many years after the PDA, it is disingenuous forAT&T to claim that it should be allowed todiscriminate in calculating respondents’ pensions,because all it was doing was continuing its earlier“entirely lawful” treatment of them. Not only wasthe conduct not lawful at the time respondents tooktheir pregnancy leave, it was not, as a separatematter, lawful to rely on service credit calculationsthat incorporated discrimination in setting pensionbenefits in 1994 and later. AT&T’s conduct isparticularly troubling in light of the Ninth Circuit’s1991 Pallas decision, which specifically disallowedthe arguments that the company relied on incalculating respondents’ pensions. Pallas, 940 F.2dat 1327.

AT&T contends that respondents should havechallenged their reduced service credits when theywere first notified about them after they returnedfrom their leave. However, there is no evidence in

19

the record that the company’s running service-credittally, which was always subject to revision, had aconcrete adverse impact at that time.3 Indeed, hadrespondents filed a complaint when their creditswere reduced, AT&T would undoubtedly haveresponded that any harm was merely speculative. Itwas only years later, when AT&T calculated therespondents’ pensions to be lower than those of menwho had worked the same amount of time as theyhad but had been credited for their disability leave,that the respondents’ claims were triggered.

Moreover, even if respondents could havecomplained at an earlier point, they were notrequired to do so. Title VII gives those injured byfacially discriminatory seniority systems, like theone applied in calculating respondents’ pensions,more than a single opportunity to pursue a claim forthe harm caused by the discriminatory system. SeeLorance v. AT&T Technologies, Inc., 490 U.S. 900,912 n.5 (1989). To eliminate any doubt about whensuch a claim of discrimination must be made, and tooverrule another aspect of the decision in Lorance,Congress provided in the Civil Rights Act of 1991that an employee may challenge a discriminatoryseniority system at three distinct points: 1) when itis adopted, 2) when the individual becomes subject tothe system, or 3) when the individual is injured byapplication of the system. See 42 U.S.C. 2000e-5(e)(2). As explained in Respondents’ Brief, Congressgave employees these choices to protect workers fromdiscrimination and ensure that they would receive

3 There may be circumstances in which the setting of servicecredits could be an unfair employment practice. However, thereis no evidence that this was the case here.

20

equal treatment if they did not complain until thediscriminatory application of the system had anactual impact. Resp. Br. at 23.

D. The Continued Prevalence of PregnancyDiscrimination Makes StrongEnforcement of Title VII Essential

Data collected by the EEOC demonstrates thatpregnancy discrimination is still very much a barrierto women’s full equal employment opportunity.Between 1997 and 2007, the number of complaints ofpregnancy discrimination filed with the agencyincreased by 65 percent. See Equal EmploymentOpportunity Commission, Pregnancy DiscriminationCharges, EEOC & FEPAs Combined: FY1997–FY2007 (last modified on February 26, 2008), athttp://www.eeoc.gov/stats/ pregnanc.html.

Recent pregnancy discrimination cases revealthat the stereotypes about women’s abilities andproper roles have not changed much since the 1970s.Too often, acts of discrimination “seem to be fueledby a fundamental resistance to having pregnantwomen in the workplace, or having to accommodatethe needs of pregnant women.” WHERE WE STAND, at10. Thus, employers continue to engage in blatantdiscrimination. For example, in 2007, the EEOCsettled a suit with a maternity clothing specialtystore after challenging the store’s policy not to hirepregnant job applicants. Equal EmploymentOpportunity Commission, Maternity Store Giant toPay $375,000 to Settle EEOC PregnancyDiscrimination and Retaliation Lawsuit (January 8,2007), at http://www.eeoc.gov/press/1-8-07.html.

21

Discriminatory application of leave policies alsocontinues, even three decades after the passage ofthe PDA. Thus, female police officers inAlbuquerque, New Mexico have been seeking equaltreatment of their pregnancy-related leave since2000, and litigation over the city’s policies continuesto this day. See Orr v. Albuquerque, 531 F.3d 1210,1212-1213 (10th Cir. 2008).

Research into attitudes about pregnant womenprovides further evidence of the continuedpervasiveness of the stereotypes fuelingdiscrimination against pregnant women. Studieshave shown, for example, that pregnant women areviewed more negatively by male colleagues than non-pregnant women. See, e.g., Jane A. Halpert, MidgeL. Wilson & Julia L. Hickman, Pregnancy as aSource of Bias in Performance Appraisals, 14 J. OF

ORGANIZATIONAL BEHAV. 649 (Dec. 1993). In onestudy “using pregnant (wearing a prosthesis) andnon-pregnant testers, researchers found thatpregnant women encountered more hostility whenapplying for jobs, particularly jobs in non-traditionalfields.” WHERE WE STAND, at 10. These studies andmany others confirm that the treatment pregnantwomen face at work stems in large part fromcontinued stereotyping and bias.

In light of the persistence of pregnancydiscrimination, it is critical that Title VII, asamended by the PDA, be rigorously enforced toeliminate the myriad harms that this discriminationimposes on women. While much of thediscrimination that pregnant women face occurswhile they are still active in the workforce,

22

respondents here confront a form of pregnancydiscrimination that emerged at the end of theircareers. The calculation of pension benefits with apenalty for pregnancy-related leave is a form ofdiscrimination that devalues women’s role in theworkplace and causes harm for the rest of a woman’slife.

II. Pension Discrimination Has SeriousConsequences for Women

When employers calculate pension benefits with abuilt-in penalty for periods of pregnancy-relatedleave, as AT&T did for respondents, those employersare discriminating on the basis of sex. Contrary toAT&T’s argument, its present-day sex discriminationin calculation of pension benefits cannot be justifiedon the ground that its pregnancy-related leavediscounting policy was not unlawful before the PDA.As described above, the notion that pregnancydiscrimination was not sex discrimination inviolation of Title VII had no legal support whenrespondent employees took their pregnancy leavesbetween 1968 and 1976. Thus, the decisions AT&Tmade at that time cannot be considered “entirelylawful when made,” Petr. Br. at 2, and cannot justifydiscriminatory pensions.

Moreover, even accepting the argument thatAT&T’s pregnancy leave policy did not violate TitleVII prior to 1979, the company unquestionablyviolated the law in and after 1994 when it calculatedpensions to provide lesser benefits for women whohad taken leave for pregnancy before the enactment

23

of the PDA. That decision about calculation ofretirement benefits treated women who had workedfor the company for years and were now enteringretirement differently than men in the sameposition. Women like the respondents here hadalready faced discrimination because of pregnancy;AT&T’s pension calculation discriminated againstthem yet again. Retired women continue to sufferthe consequences of many forms of employmentdiscrimination. The burdens they face should not beincreased by a second round of discrimination whentheir pensions are set.

A. Women Live Longer And Have FewerRetirement Resources Than Men

While economic security in retirement isfundamental to health and well-being, retired womenlive with fewer resources and significantly moreuncertainty than their male counterparts. It is well-established that women, on average, live five to 10years longer than men, and therefore need theirfinancial resources to last considerably longer. See,e.g., Cindy Hounsell, The Female Factor 2008: WhyWomen Are at Greater Financial Risk in Retirementand How Annuities Can Help, at 9 (2008).Unfortunately, however, women over 65 generallyhave less, rather than more, retirement income.Women draw lower Social Security benefits andreceive less from employer-based retirement plans.

Among those who do receive pension income,women’s benefits are significantly lower than men’sbenefits. Richard Johnson, The Gender Gap inPension Wealth: Is Women’s Progress in the Labor

24

Market Equalizing Retirement Benefits?, UrbanInstitute Brief Series No. 1 (March 1999). The mostrecent population surveys show that the medianpension benefit for women over 65 is $8,110,compared to a $12,505 median for men in the sameage range. U.S. Census Bureau, Current PopulationSurvey, http://pubdb3.census.gov/macro/032008/pov/new01_100_01.htm (hereinafter “Current PopulationSurvey”).

Because women are paid less and take more timeoff for family responsibilities over the course of theircareers, women’s lifetime earnings lag substantiallybehind those of their male counterparts.Consequently, women in retirement generallyreceive significantly less in Social Security benefitsthan do their male counterparts. Moreover, they areless likely to have any pension at all, and thepensions they do receive are likely to be lower.Thus, women are more likely than men to rely onSocial Security benefits as a primary source ofretirement income. See Judith G. Gonyea & NancyR. Hooyman, Reducing Poverty Among OlderWomen: Social Security Reform and Gender Equity,86 FAMILIES IN SOCIETY: J. CONTEMP. HUM. SERVICE

338, 340 (2005).

In part as a consequence of the pensiondifferential and lower Social Security benefits,“[w]omen are at a much greater risk of falling intopoverty in later life than men.” Id. at 339. In fact,the poverty rates for women over 65 are nearlydouble those of men the same age. About 6.6 percentof older men currently live in poverty compared to 12

25

percent of older women. See Current PopulationSurvey.

B. Disparities In Retirement IncomeExacerbate The Harm Women SufferFrom Pay Discrimination

The discrimination suffered by respondents hereis only one aspect of the continuing paydiscrimination that causes women’s salaries to belower over their lifetimes than the salaries ofsimilarly situated men. Pension discriminationexacerbates the harm caused by a lifetime of paydiscrimination.

The gender-based wage gap in the United Statesis persistent and well-documented. Currentestimates of the gender wage gap place it at abouteighty percent—meaning that a woman working full-time, year-round, on average, earns 78 cents forevery dollar earned by a man. See Carmen Denavas-Walt, Bernadette D. Proctor and Jessica C. Smith,U.S. Census Bureau, Current Population Reports,P60-235, Income, Poverty and Health InsuranceCoverage in the United States: 2007, at 6 (U.S. Gov’tPrinting Office 2008). The pay gap is especiallypronounced for African American women andHispanic or Latino women, who earn even less on thedollar compared to white men. See Bureau of LaborStatistics, U.S. Dep’t of Labor, Highlights ofWomen’s Earnings in 2007, at 1 (Oct. 2008)(reporting median usual weekly earnings of $788 forwhite men, $626 for white women, $533 for black orAfrican American women, and $473 for Hispanic or

26

Latino women).

The gender wage gap exists at every level ofearnings. Id. Moreover, the disparity in men’s andwomen’s wages extends, with some variation,throughout the employment lifecycle. Women intheir 40s and 50s earn salaries more disparate fromtheir male counterparts than do women at thebeginning of their careers. See id. at 8; Francine D.Blau et al., THE ECONOMICS OF WOMEN, MEN, AND

WORK 150 (5th ed. 2006) (“women earn less thanmen in all age categories,” and the ratio of women’searnings to men’s decreases as they age). Whenearnings over a longer period of time are aggregated,the gap is even starker. In their prime earning years,women earn only 38 percent of what men earn over a15-year period. See Stephen J. Rose & Heidi I.Hartmann, Inst. for Women’s Pol’y Res., STILL A

MAN’S LABOR MARKET: THE LONG-TERM EARNINGS

GAP 9 (2004).

Thus, by the time a woman’s pension is calculatedat the end of her work life, the accumulated years ofpay disparities will significantly affect the resourcesshe has to live on in retirement, as compared to thoseavailable to a male counterpart. The fact thatwomen are more likely to take leave during thecourse of their careers to care for children or otherfamily members only adds to this difference.Requiring women to take more leave than theythemselves would have chosen, as was the case forNoreen Hulteen and Linda Porter, exacerbates thedifferences even further. And when companies likeAT&T choose in the present day to treat pregnancy-related leave as less worthy of inclusion than other

27

disability leave in calculating benefits, they worsenthe difficult circumstances of many female retirees.This is unlawful sex discrimination that older womenwill live with for the rest of their lives, and it shouldnot be permitted.

CONCLUSION

This Court should affirm the Ninth Circuit andensure that employers cannot discriminate on thebasis of pregnancy-related circumstances incalculating the pension benefits that femaleemployees will receive in their retirement.

Respectfully submitted,

MARCIA D. GREENBERGERJOCELYN SAMUELSDINA R. LASSOWNATIONAL WOMEN’SLAW CENTER11 Dupont Circle, NW,Ste. 800Washington, DC 20036202-588-5180

MELISSA HARTAssociate Professor of Law(Counsel of Record)UNIVERSITY OFCOLORADO LAWSCHOOLUCB 401Wolf Law BuildingBoulder, CO 80309303-735-6344

November 14, 2008

APPENDIX A

INDIVIDUAL STATEMENTS OF INTERESTOF AMICI CURIAE

Founded in 1915, the American Association ofUniversity Professors (AAUP) is an association ofover 45,000 faculty members and other academicprofessionals in all academic disciplines. The AAUPhas taken a strong stand against discrimination byinstitutions of higher education. See, e.g., OnDiscrimination, POLICY DOCUMENTS &REPORTS 299 (10th ed. 2006). The AAUP hasjoined amicus briefs in several recent Supreme Courtcases addressing anti-discrimination legislation,including Crawford v. Metropolitan Government ofNashville and Davidson County and Engquist v.Oregon Department of Agriculture. The AAUP isparticularly concerned about discrimination againstpregnant women, both in the academy and society atlarge. The AAUP’s Statement of Principles onFamily Responsibilities and Academic Work, issuedin 2001, notes that pregnancy is an “event thatinterrupts the career of a higher percentage ofprofessors than any other ‘physical disability’ orfamily obligation.” POLICY DOCUMENTS &REPORTS 299 (10th ed. 2006) at 219-221. TheStatement accordingly calls for the adoption ofpolicies that “support[] family life” because “[w]ithoutsuch support, the commitment to gender equity, forboth women and men, will be seriouslycompromised.”

For more than 125 years, the AmericanAssociation of University Women (AAUW), anorganization of over 100,000 members and 1,300

2a

branches nationwide, has worked to break througheducational and economic barriers so that all womenhave a fair chance. AAUW’s 2007-09 member-adopted Public Policy Program states that AAUW iscommitted to supporting fairness in compensationand vigorous enforcement of employmentantidiscrimination statutes. AAUW believes that payequity is a simple matter of justice and continues tosupport initiatives that seek to close the persistentand sizable wage gap between men and women;appropriate application and enforcement of thePregnancy Discrimination Act are crucial to theseefforts. AAUW strongly believes that women’spensions should not be tainted by the discriminatorypolicies of the past, and that women should not ineffect be punished because of their parental status.

The American Nurses Association (ANA) wasfounded over a century ago, and today it representsthe interests of the Nation’s 2.9 million registerednurses. The ANA is comprised of 54 constituentmember associations, including one in every state ofthe United States. ANA has approximately 200,000members. In addition, there are 21 specialty nursingorganizations that are Organizational Affiliates ofthe ANA and that have a combined, additionalmembership of approximately 210,000 RNs. ANA notonly develops the Code of Ethics for Nurses and thestandards of nursing practice, it actively promotespatient safety, workplace rights, appropriatestaffing, workplace and environmental health andsafety, and the public health. The profession ofnursing is a predominantly female profession, and assuch, ANA’s membership and the interests of allnurses for whom it speaks are directly affected by the

3a

issues raised in this case. Further, ANA promotesthe public health and supports women who takeneeded time during pregnancy and after child-birthto attend to their own health needs and those of theirchildren. Mothers who take leave because of theircommitment to health should not suffer fromdiscriminatory employment policies. Lastly andquite fundamentally, ANA supports equal treatmentunder the law.

Business and Professional Women/USA(BPW/USA), founded in 1919, is a multi-generational, nonpartisan membership organizationwith a mission to achieve equity for all women in theworkplace through advocacy, education, andinformation. Established as the first organization tofocus on issues of workingwomen, BPW/USA ishistorically a leader in grassroots activism, policyinfluence and advocacy for millions ofworkingwomen. With members in everyCongressional district and all 50 states and 4 U.S.territories, BPW/USA has become the leadingadvocate for millions of workingwomen on work-lifeeffectiveness and workplace equity issues.

The California Women's Law Center (CWLC)is a private, nonprofit public interest law centerspecializing in the civil rights of women and girls.Established in 1989, the California Women's LawCenter works in the following priority areas: SexDiscrimination, Women’s Health, Race and Gender,Women’s Economic Security, Exploitation of Womenand Violence Against Women. Since its inception,CWLC has placed a strong emphasis on eradicatingsex discrimination in employment. CWLC has

4a

authored numerous amicus briefs, articles, and legaleducation materials on this issue. The AT&T v.Hulteen case raises questions within the expertiseand concern of the California Women's Law Center.Therefore, the California Women's Law Center hasthe requisite interest and expertise to join in theamicus brief in this case.

The Clearinghouse on Women's Issuesprovides information on issues relating to women,including discrimination on the basis of gender, age,ethnicity, marital status or sexual orientation withparticular emphasis on public policies that affect theeconomic, educational, health and legal status ofwomen.

The Coalition of Labor Union Women (CLUW)is an AFL-CIO affiliate with over 20,000 members, amajority of whom are women. Since 1974, CLUWhas advocated to strengthen the role and impact ofwomen in every aspect of their lives. CLUW focuseson key public policy issues such as equality ineducational and employment opportunities,affirmative action, pay equity, national health care,labor law reform, family and medical leave,reproductive freedom and increased participation ofwomen in unions and in politics. Through its morethan 80 chapters across the United States, CLUWmembers work to end discriminatory laws, andpolicies and practices adversely affecting womenthrough a broad range of educational, political andadvocacy activities. CLUW has frequentlyparticipated as amicus curiae in numerous legalcases involving issues of gender discrimination andpay equity. CLUW provides training and

5a

educational support to its members on issuesrelating to Title VII enforcement and prevention ofworkplace harassment and discrimination, includingdiscrimination based on pregnancy.

The Connecticut Women's Education andLegal Fund (CWEALF) is a non-profit women’srights organization dedicated to empowering women,girls and their families to achieve equalopportunities in their personal and professional lives.CWEALF defends the rights of individuals in thecourts, educational institutions, workplaces and intheir private lives. Since 1973, CWEALF hasprovided legal education and advocacy and conductedpublic policy work to ensure the enforcement of TitleVII.

The D.C. Employment Justice Center (EJC) isa private, non-profit organization that advocates forthe rights of frequently unprotected and vulnerablepopulations, specifically minority workers, domesticviolence victims, immigrant workers, and othersimilarly vulnerable working populations throughour legal services, advocacy, and education work. TheEJC has achieved many legislative victories thathave reformed the workers’ compensation andunemployment compensation systems in the District,educated thousands of workers about their rights onthe job, and built a vibrant community organizingprogram.

The Feminist Majority Foundation (theFoundation), is a non-profit organization with officesin Arlington, VA and Los Angeles, CA. TheFoundation is dedicated to eliminating sex

6a

discrimination and to the promotion of women'sequality and empowerment. The Foundation'sprograms focus on advancing the legal, social,economic, and political equality of women with men,countering the backlash to women's advancement,and recruiting and training young feminists toencourage future leadership for the feministmovement. To carry out these aims, the Foundationengages in research and public policy development,public education programs, litigation, grassrootsorganizing efforts, and leadership training programs.

Hadassah, the Women’s Zionist Organizationof America, founded in 1912, is the largest women’sand Jewish membership organization in the UnitedStates, with over 300,000 members nationwide. Inaddition to Hadassah’s mission of maintaining healthcare institutions in Israel, Hadassah has a proudhistory of protecting the rights of women and theJewish community in the United States. Hadassahstrongly supports stricter enforcement of pay equitylaws, improvements in restrictive pension policies,and support for measures that will reduce the wagegap and bring about real economic security forwomen.

Legal Momentum (formerly NOW LegalDefense and Education Fund) advances the rights ofwomen and girls by using the power of the law andcreating innovative public policy. Throughout itsnearly forty-year history, as lead counsel and asamicus curiae, Legal Momentum has worked toenforce the laws prohibiting sex discrimination onthe job so as to assure women’s equality andeconomic security. Giving full effect to those laws

7a

demands that past discriminatory acts not give riseto present-day discrimination with respect to anyterm or condition of employment, including pensionbenefits.

Myra Sadker Foundation is a non-profitorganization dedicated to promoting equity in andbeyond schools. Myra Sadker, educator, author, andDean at American University, exposed both thesubtle and blatant education biases that limit theacademic, psychological, economic, and physicalpotential of both males and females. The foundationsupports research, training and special programs toassist teachers, parents, children and other adults ineliminating such biases from America’s schools.

Founded in 1996, the National Asian PacificAmerican Women's Forum (NAPAWF) is dedicated toforging a grassroots progressive movement for socialand economic justice and the political empowermentof Asian Pacific American women and girls. Theeconomic empowerment of all women is one of thecentral issues that forms the basis of NAPAWF'sadvocacy. NAPAWF supports the respondents in thiscase because the persistence of pregnancydiscrimination prevents women from achievingequality and economic security in the workplace.

Established in 1955, the National Associationof Social Workers (NASW) is the largest associationof professional social workers in the world, withapproximately 145,000 members and chaptersthroughout the United States, in Puerto Rico, Guam,the Virgin Islands, and an International Chapter inEurope. With the purpose of developing and

8a

disseminating standards of social work practice whilestrengthening and unifying the social workprofession as a whole, NASW provides continuingeducation, enforces the NASW Code of Ethics,conducts research, publishes books and studies,promulgates professional criteria, and developspolicy statements on issues of importance to thesocial work profession. NASW recognizes thatdiscrimination and prejudice directed against anygroup are not only damaging to the social, emotional,and economic well-being of the affected group’smembers, but also to society in general. NASW haslong been committed to working toward theelimination of all forms of discrimination againstwomen. The NASW Code of Ethics directs socialworkers to “engage in social and political action thatseeks to ensure that all people have equal access tothe resources, employment, services, andopportunities they require to meet their basic humanneeds and to develop fully” . . . and to “act to preventand eliminate domination of, exploitation of, anddiscrimination against any person, group, or class onthe basis of . . . sex.” NASW policies support“breaking the…‘maternal wall’ that affects mothersin the paid labor force...” NATIONAL ASSOCIATION OF

SOCIAL WORKERS, Women’s Issues, SOCIAL WORK

SPEAKS, 387, 390 (2006). Accordingly, given NASW’spolicies and the work of its members, NASW hasexpertise that will assist the Court in reaching aproper resolution of the questions presented in thiscase.

The National Association of Women Lawyers(NAWL), founded in 1899, is the oldest women’s barassociation in the country. NAWL is a national

9a

voluntary organization with members in all fiftystates, devoted to the interests of women lawyers, aswell as all women. Through its members,committees and the Women’s Law Journal, itprovides a collective voice in the bar, courts,Congress and the workplace. NAWL standscommitted to ensuring equality in the workplace.

The National Council of Jewish Women(NCJW) is a grassroots organization of 90,000volunteers and advocates who turn progressiveideals into action. Inspired by Jewish values, NCJWstrives for social justice by improving the quality oflife for women, children, and families and bysafeguarding individual rights and freedoms.NCJW's Resolutions state that the organizationendorses and resolves to work to ensure that“discrimination on the basis of race, gender, nationalorigin, ethnicity, religion, age, disability, maritalstatus, sexual orientation or gender identity must beeliminated.” In addition, NCJW believes “equalrights and equal opportunities for women must beguaranteed.” Consistent with our Resolutions, NCJWjoins this brief.

The National Council of Women'sOrganizations (NCWO) is a coalition of over 200 ofthe nation's largest and most influential women'sgroups. Representing 10 million women nationwide,NCWO groups support full enforcement of laws thatprohibit sex discrimination in employment. NCWOgroups recognize the long-term effects thatpregnancy discrimination has on women's economicsecurity.

10a

The National Education Association (NEA) isa nationwide employee organization withapproximately 3.2 million members, the vastmajority of whom are employed by public schooldistricts, colleges, and universities. NEA is stronglycommitted to ending gender discrimination byeducational institutions and, to this end, firmlysupports the vigorous enforcement of the PregnancyDiscrimination Act.

The National Organization for Women (NOW)is the largest feminist organization in the UnitedStates, with a contributing membership of over500,000 women and men in more than 400 chaptersin all 50 states and the District of Columbia. Sinceits inception in 1966, a major goal of NOW has beento achieve equal employment opportunity for women,including the eradication of discrimination. Infurtherance of that goal, NOW has participated innumerous legal cases and in drafting relatedlegislation. The Pregnancy Discrimination Act wasdrafted by a NOW Founder, Phineas Indritz, andNOW was active in promoting its passage. NOW hasa strong interest in the fair treatment of women inretirement and pensions, and in the elimination ofpregnancy discrimination and all of its vestiges.

The National Partnership for Women &Families is a non-profit, national advocacyorganization founded in 1971 that promotes equalopportunity for women, quality health care, andpolicies that help women and men meet both workand family responsibilities. The NationalPartnership has devoted significant resources tocombating sex, race, and other forms of invidious

11a

workplace discrimination and has filed numerousbriefs amicus curiae in the U.S. Supreme Court andin the federal circuit courts of appeal to advance theopportunities of women and people of color inemployment.

National Women’s Political Caucus (NWPC) isa bipartisan, multicultural grassroots organizationdedicated to increasing women’s participation in thepolitical field and creating a political power basedesigned to achieve equality for all women. Foundedin 1971, NWPC prides itself on increasing thenumber of pro-choice women elected and appointedinto office every year. Through recruiting, trainingand financial donations, NWPC provides support towomen candidates running for all levels of officeregardless of political affiliation. In addition,hundreds of state and local chapters reach out towomen in communities across the country to betterassist them in their dreams of being elected intooffice. NWPC strives to break the glass ceiling, whichrestricts a woman’s ability to climb the politicalladder, one crack at a time.

9to5, National Association of Working Womenis a national membership-based organization of low-wage women working to achieve economic justice andend discrimination. 9to5’s members and constituentsare directly affected by pay disparities, sexdiscrimination including pregnancy discrimination,the long-term negative effects on economic well-beingof these disparities and discrimination, and thedifficulties of seeking and achieving redress for allthese issues. Our toll-free Job Survival Hotline fieldsthousands of phone calls annually from women

12a

facing these and related problems in the workplace.The issues of this case are directly related to 9to5’swork to end workplace discrimination and our workto promote policies that aid women in their efforts toachieve economic self-sufficiency. The outcome of thiscase will directly affect our members’ andconstituents’ rights in the workplace and their long-term economic well-being and that of their families.

The Northwest Women’s Law Center(NWWLC) is a non-profit public interest legalorganization that works to advance the legal rights ofwomen in the Pacific Northwest through litigation,education, legislative advocacy, and the provision oflegal information and referral services. Since itsfounding in 1978, the NWWLC has been dedicated toprotecting and securing equal rights for women andtheir families, including in the workplace, ineducational institutions, and elsewhere. Towardthat end, the NWWLC has participated as counseland as amicus curiae in cases throughout theNorthwest and the country, including serving asamicus in a recent Washington case confirming thatpregnancy discrimination is sex discrimination, andin numerous other cases establishing women’s rightsto work free from sex discrimination and sexualharassment. The Law Center is currently involvedin numerous other legislative and litigation efforts toprotect equal opportunity in the workplace andcontinues to serve as a regional expert and leadingadvocate on women’s legal rights.

The Older Women’s League (OWL) is a non-profit, non-partisan organization that accomplishesits work through research, education, and advocacy

13a

activities conducted through its chapter and at-largemembership network. Now in its 28th year, OWLprovides a strong and effective voice for more than 70million women in America, age 40 and over. OWLhas long advocated for equality and economicsecurity, therefore we believe that all persons shouldbe free from sex discrimination in the workplace. Noone should be faced with discrimination for becomingpregnant. This type of discrimination has gone on fortoo long. It affects women at each step of their lives,resulting in older women living in poverty at a muchhigher rate than older men. OWL believes thatAT&T’s conduct is contrary to the purpose of TitleVII and must not be allowed.

The Sargent Shriver National Center onPoverty Law (Shriver Center) champions economicopportunity through fair laws and policies so thatpeople can move out of poverty permanently. Ourmethods blend advocacy, communication, andstrategic leadership on issues affecting people livingin poverty. National in scope, the Shriver Center’swork extends from the Beltway to state capitols andinto communities building strategic alliances.Through its Women’s Law and Policy Project, theShriver Center works on issues related to women’semployment and economic security. Discriminatoryworkplace policies and practices have a negativeimpact on women’s immediate and long-termeconomic security. The poverty rate among women65 and older is 12 percent, more than 80 percenthigher than the poverty rate for men 65 and older(6.6 percent). Non-discrimination in employment isthe surest path out of poverty and toward economicwell-being. The Shriver Center has a strong interest

14a

in the eradication of unfair and unjust employmentpolicies and practices, including discriminatorypension benefits, which serve as a barrier toeconomic equity.

Sociologists for Women in Society (SWS) is anon-profit scientific and educational organization ofsociologists and others dedicated to maximizing theeffectiveness of and professional opportunities forwomen in sociology; exploring the contributionswhich sociology can, does and should make to theinvestigation of and humanization of current genderarrangements; and improving women's lives andcreating feminist social change. It is with the aim ofimproving women's lives that we sign on to this briefthat addresses issues of discrimination aroundpension benefits.

The Southwest Women’s Law Center is anonprofit women’s legal advocacy organization basedin Albuquerque, New Mexico. Its mission is to createthe opportunity for women to realize their fulleconomic and personal potential by eliminatinggender discrimination, helping to lift women andtheir families out of poverty, and ensuring thatwomen have control over their reproductive lives.The Southwest Women’s Law Center is committed toeliminating gender discrimination in all of its formsand ensuring broad and meaningful enforcement ofanti-discrimination laws in the workplace.

Women Employed ’s mission is to improve theeconomic status of women and remove barriers toeconomic equity. Women Employed promotes fairemployment practices, helps increase access to

15a

training and education, and provides women withinformation and tools to plan their careers. Since1973, the organization has assisted thousands ofworking women with problems of discrimination andharassment, monitored the performance of equalopportunity enforcement agencies, and developedspecific, detailed proposals for improvingenforcement efforts. Women Employed stronglyopposes discrimination against women employeeswhile on maternity leave, as well as compoundingthat discrimination by reducing their pensionbenefits based on the initial discriminatory action.

Women Work! The National Network forWomen’s Employment is the nation’s largest networkof programs that help women enter, re-enter, andadvance in the workforce. The service providers whoare our members and the women they servefrequently encounter sex and pregnancydiscrimination and know first-hand how detrimentalthese practices are to women’s ability to supportthemselves and their families. AT&T v. Hulteen is atest of women’s right to be fairly compensated – inwages and in pension benefits – for the equal workthey perform. Pregnancy discrimination is a barrierthat continues to prevent women from achieving trueequality in the workforce.

The Women's Bar Association of the District ofColumbia (WBA-DC), founded in 1917, works toadvance and protect the interests of women lawyers;to maintain the honor and integrity of the legalprofession, and to promote the administration ofjustice. Among its many activities, WBA-DC developsand promotes the interests of women by monitoring

16a

legislation and filing amicus briefs on issues vital towomen. WBA-DC has an interest in protecting thelegal rights of women, both within and outside of thelegal profession, under Title VII of the Civil RightsAct of 1964 Therefore, WBA-DC files as an amicusin this matter in the interest of protecting the rightsof women to equality in the workplace.

The Women’s Law Center of Maryland, Inc. isa nonprofit, membership organization with a missionof improving and protecting the legal rights ofwomen, particularly regarding genderdiscrimination, sexual harassment, employment lawand family law. Through its direct services andadvocacy, the Women’s Law Center seeks to protectwomen’s legal rights and insure gender equality inthe workplace.

The Women’s Law Project (WLP) is a non-profit public interest law firm with offices inPhiladelphia and Pittsburgh, Pennsylvania.Founded in 1974, the WLP works to abolishdiscrimination and injustice and to advance the legaland economic status of women and their familiesthrough litigation, public policy development, publiceducation and individual counseling. Throughout itshistory, the WLP has worked to eliminate sexdiscrimination, bringing and supporting litigationchallenging discriminatory practices prohibited byfederal civil rights laws. The WLP has a stronginterest in the proper application of civil rights lawsto provide appropriate and necessary redress toindividuals victimized by discrimination.

17a

Women’s Research & Education Institute(WREI) has provided timely, nonpartisan data andissue analysis to the women of the U.S. Senate andHouse of Representatives since 1977. Every otheryear, WREI produces a detailed demographic profileof women’s status as students, workers, voters,taxpayers, wives, mothers, widows, and retirees.This book focuses on education, employment, health,military participation, economic well-being, andfamily formation.

The YWCA USA is the nation’s oldest women’sorganization. We represent more than two millionwomen and girls, and can be found in manycommunities across the United States. With nearly300 local associations, we serve thousands of women,girls, and their families annually through a variety ofprograms and services, including housing andnutrition programs, education and training services,violence prevention and recovery programs, andmore. Our clients include elderly women, disabledwomen, women and girls escaping violence, and low-income and homeless women and their families.Throughout its 150 year history, the YWCA has beenin the forefront of most major movements in theUnited States as a pioneer in race relations, laborunion representation, and the empowerment ofwomen.

18a

APPENDIX B

TESTIMONY OF NOREEN HULTEENBEFORE THE SENATE JUDICIARY COMMITTEE

SEPTEMBER 23, 2008

In 1968, I was pregnant with my youngest child. Iwas employed by Pacific Telephone and Telegraph, awholly was owned AT&T subsidiary, as an AssistantManager.

In November, I was told by my immediate boss tobegin my pregnancy Leave of Absence (LOA), as mybody was not "hiding" the condition. At the time, apregnancy leave was treated as unpaid personalleave by the company. My daughter was born on1/12/69.

AT&T at that time required a doctor's certificate offitness be provided before any employee could returnto work following a pregnancy LOA.

My doctor told me that corrective surgery wasneeded before he could give me that document. A fulllaperotomy was required and it was scheduled for 6weeks after the birth of my child. The surgery wasnot pregnancy related. Because I was on a “personalleave” for pregnancy and not a disability leave, thetime I took off for the laperotomy was not consideredby AT&T to be a disability LOA.

Recovery was long. I returned to work in either Julyor August 1969. If I had been male, I would havebeen absent on Disability Benefits for surgery.However, because I was on a personal leave, I couldnot take off additional time for the laperotomy as a

19a

disability leave unless I returned to work first. Iasked my supervisor if I could return for one day andthen begin a disability leave. My employer refusedthis request and, as I stated above, my doctor wouldnot authorize me to return to work without thesurgery. If I had been on disability leave and notpregnancy leave, my medical insurance would havebeen paid in full by the company. If I had been on adisability LOA, I had enough service then to have myfull salary paid for part of the time and I would havereceived half-pay for the remaining time. I had topay for my own medical insurance for all the monthsI was on LOA. Due to the AT&T requirement that aperson work 6 months after return from a personalLOA before becoming eligible for paid vacation, I lostmy vacation benefit for 1969. I also lost my annualraise in pay.

Because AT&T treated pregnancy leave differentlyfrom any other kind of disability leave, I lost all ofthose benefits.

Upon my return to work, my Net Credited Service(NCS) date was adjusted to deduct all but 30 days ofthe time I had been out on leave. If I had been outon disability leave, I would not have had my dateadjusted. AT&T uses this date to keep track of howlong someone has worked at the company forseniority and other purposes. This made nodifference to anything at that time. It was just apaper record.

Later on, I read that Pacific Bell had been suedsuccessfully for discriminating in pensioncalculations against women who took pregnancy

20a

leave by deducting that leave time from their NCSdates when it did not deduct that time for any otherkind of disability leave. I asked my immediate bossto adjust my NCS date back to my original NCS dateas required by the court ruling. He told me that Imust write to the Benefits Committee for that.

I wrote the letter on my personal stationery andreceived no reply. I sent a second letter asking for areply and received none. In June 1994, my early-retirement date (a force reduction) arrived withoutany disposition on my request. I signed the papersagreeing to the conditions, but noted "except my NCSdate" in the margin, and signed that.

When AT&T calculated my pension, it reduced myannual pension benefit because of the pregnancyleave I had taken. I had actually worked for AT&Tfor 30 years and 8 months. I was credited with lessthan 30 years. A man hired on the same day as me,and retired on the same day as me, could have hadseveral disabilities, and yet would retire with higherpension benefits than me. This is what I sued to haveAT&T fix.

I waited some time for AT&T’s response, but stillreceived none. So, I made an appointment withthe EEOC in San Francisco. My first communicationthere was difficult. The first contact rejected mycomplaint. Only after complaining was I finallyconnected to a supervisor who was helpful andunderstanding.

Eventually, I was issued a "Right To Sue" letter. Iwas referred to Judith Kurtz, the attorney on the

21a

Pallas case. We met and reached an agreement thatI would be a named plaintiff in a class action suit.My case is currently before the Supreme Court.

About two years later, AT&T offered me $5,000 cashto drop the case. By then, I was aware of a number ofwomen whose loss was probably greater than minewas and whose need was more urgent. I refused tosettle and let the other women down. I also feltstrongly that AT&T was obligated to obey the law.

For the 14 years since I retired and attempted tohave my lost credit reinstated, AT&T has employedmany delaying tactics. My understanding is thatthey claim that they are not responsible forcorrecting that which happened before the law waschanged. I am not claiming damages for any of theharm done to me in 1969, before the PregnancyDiscrimination Act. I am not asking AT&T to paythe medical insurance or lost disability pay theyshould have paid me, or to reimburse me for theraise or the vacation time I lost. I am claimingcorrection of the harm that was done to me in 1994 –after the law was changed. I am sure that duringthe 14 years of litigation, many AT&T pensionerswho should have been entitled to fair treatment havedied and can never benefit from this lawsuit.

I was very happy when the Ninth Circuit agreedwith us in my case and held that AT&T was notallowed to reduce pensions for women who tookpregnancy leave in the past. I was disappointed thatrather than finally deciding to do the right thing andstop discriminating, AT&T decided to try to get theNinth Circuit’s decision reversed.

22a

In my opinion, the problem is not in the laws, whichexist to protect women. The problem is that they arenot enforced properly. When my deposition wastaken as part of the lawsuit, the AT&T lawyer askedwhy I had not filed a complaint in 1969. She wasvery young and did not understand that there was noway to complain in 1969. If I had complained toAT&T, my belief is that I would have been fired.Today, women still hesitate to start a proceeding likethis because it is apparent that large corporationscan flaunt the laws and not be challenged.

I am hopeful that the Supreme Court will recognizethat Congress never intended to allow AT&T todiscriminate against women like it has been doing.Frankly, the Supreme Court should not have to beinvolved in this case in the first place – it is a shamethat a big and wealthy company like AT&T isworking so hard, and spending so much money on itslawyers, to try to win the right to pay smallerpensions to women whose only offense was that theydared to try to work and have a family at the sametime.