“Split Circuits: Are Employers Required to Credit Pre-PDA Pregnancy Leaves When Calculating Retirement Benefits?”

Does an employer violate Title VII of the Civil Rights Act of 1964 (Title VII) if, when determining post-Pregnancy Discrimination Act (PDA) retirement benefits, it fails to restore service credit to female employees who took pregnancy leave prior to the passage of the PDA and therefore received less credit than employees who took any other kind of temporary disability leave?

The circuits are split on the issue, with the Ninth Circuit, sitting en banc, recently ruling in Hulteen v. AT&T Corp., that “calculation of service credit excluding time spent on pregnancy leave violates Title VII.” In contrast, the Sixth and Seventh Circuits have held the exact opposite, with the Seventh Circuit stating in Ameritech Benefit Plan Comm. v. Commc’n Workers of Am. that “the women knew the minute they took their pregnancy or maternity leaves that they were not getting full credit for their time off . . . the time for bringing a complaint was therefore long ago.”

Last year, in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court attempted to address the confusion regarding the distinction between the conflicting lines of authority in United Air Lines, Inc. v. Evans and Bazemore v. Friday. The Ninth Circuit’s decision in Hulteen demonstrated that Ledbetter failed to reconcile the conflicting lines of authority. The Supreme Court has granted certiorari in Hulteen to resolve the circuit split.

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