*2
Before
FARRIS,
and
SCHROEDER
Judges,
DUMBAULD,*
Circuit
and
Judge.
District
SCHROEDER,
Judge:
Circuit
Lana Pallas filed this
against
suit
her
employer,
Bell,
Pacific
and its
companies
Bell”),
(collectively “Pacific
claiming that
the company has discrimi-
nated
her on
gender
the basis of
Bell
Pacific
denied her
retirement benefits in 1987 based on a
method of calculating employee service
time that does not
credit
leaves
prior
taken
to 1979 but
credits
disability leaves taken during the
pe-
same
brought
riod. Pallas
this action under the
Pregnancy
provisions
Discrimination Act
2000e
seq.;
et
§§
ERISA, 29 U.S.C.
seq.;
and the
§§
Fair Employment
Housing
California
Act,
seq.
Cal.Gov’t Code
12900 et
§§
interpreted
district court
Pallas’s
complaint
allege
only
discrimination
occurred
when the law did
require employers
to treat
like
women
men.
temporarily disabled
Gilbert,
General Electric Co.
v.
(1976).
Thus, the district court dismissed the com- plaint for failure to state federal claim. complaint Because we hold that the states a claim for occurring in 1987 discrimination Pacific Bell Pallas retirement denied benefits, we reverse. See Bazemore v. Friday, 106 S.Ct. * Dumbauld, Pennsylvania, Honorable Edward sitting designation. Senior United Judge States District for Western District of Ship- Newport News 2000e(k); U.S.C. § FACTS EEOC, building Dry& Co. Dock a new Bell instituted 669, 684, management em- benefit retirement (“The (1983) Pregnancy Dis- *3 L.Ed.2d Op- “Early Retirement called the ployees that, has now made clear Act crimination benefit, an qualify for the To portunity.” purposes, discrimination all Title VII for twen- have accrued employee must eligible is, on its woman’s on a based company mea- ty years of service. sex”). face, of her discrimination because by length of service a employee’s sures preg- to treat requires employers Act system. Under service” “net credited manner as nancy in the same disabilities receives credit system, an temporary for “all medical disabilities employee is absent the during which time including re- employment-related purposes, disability, does not but due to a fringe pro- ceipt of benefits under benefit personal spent on time credit for receive 2000e(k).1 42 grams.” U.S.C. § Pregnan- to enactment leave. Prior Pallas’s Title court dismissed district Act, required Pacific Bell cy Discrimination a of Su- on the series VII claim basis take by pregnancy to employees disabled spe- interpreting a preme Court decisions 1979, Pacific Bell leaves. After personal concerning se- provision of Title VII cial allow with changed policy its 2000e-2(h). niority systems, U.S.C. § to take dis- disabilities pregnancy-related See, Technologies, T e.g., Lorance v. AT & the current “net ability leaves. Under Inc., 490 U.S. system, employees dis- credited service” Lines, Air Inc. (1989); United L.Ed.2d 961 1979 do pregnancy prior to not by abled Evans, 97 S.Ct. pregnancy- for their service credit receive In this line deci- related leaves. sions, dispar- Supreme held that by Pacif- Pallas, employed who had been se- impacts resulting from a bona fide ate companies since
ic Bell and its
facially
neutral must
niority system that
Early
Op-
Retirement
applied for the
of limita-
challenged within the statute
dated October
portunity. By letter
adopted;
system
tions from the time
company informed her that
facially
system, the discrimi-
neutral
with
because,
eligible
benefit
adoption
at the time of
natory act occurs
leave she
pregnancy-related
of a
a result
not consti-
subsequent applications do
three to four
took in
she was
Lorance,
See
continuing
tute
violations.
of service
necessary
amount
short of
2268-69;
911-13,
at
at
This suit followed.
credit.
Evans,
557-58,
DISCUSSION
relying
in
erred
The district court
These cases are
progeny.
Evans
Pregnancy Discrimination Act
and its
respects.
inapposite in two determinative
redress discrimination
amended
VII to
program which
First,
discriminatory
based on a woman’s
2000e-2(a). Congress
703(a)
amended Ti-
provides
§
VII
that it is
42 U.S.C.
of Title
1. Section
provide that:
employment practice"
for an em-
tle VII in 1978
an "unlawful
"on the basis
ployer:
"because of sex” or
terms
[t]he
to,
include,
because
but are not limited
sex”
(1)
any
...
to discriminate
individual
childbirth,
pregnancy,
or
basis of
or on the
terms,
compensation,
respect
con-
with
to his
conditions;
women af-
related medical
ditions,
employment,
privileges
or
because
childbirth,
by pregnancy,
or related
fected
race, color,
sex,
religion,
of such individual's
the same
be treated
medical conditions shall
origin; or
or national
(2)
purposes,
employment-related
includ-
for all
limit,
classify
segregate,
employ-
or
his
fringe
ing receipt
benefit
under
of benefits
any way
employment
applicants
ees or
persons not so affected but
programs, as other
deprive
deprive
or tend to
which would
inability
ability
in their
similar
employment opportunities or
individual of
work....
adversely
his status as an
otherwise
affect
2000e(k)
race,
(Pregnancy Discrimination
§
employee, because of such individual’s
Act).
color,
sex,
origin.
religion,
or national
gave
suit,
Early
rise to this
Retirement
For
reasons,
similar
the district
Opportunity, was
instituted
1987. This
court erred in dismissing Pallas’s claims
is not
attempt
a belated
litigate
under the California Fair Employment and
discriminatory impact of a pre-Pregnancy
Act,
Housing
Cal.Gov’t. Code
12900 et
§§
program.
Discrimination Act
Pallas chal-
seq. The FEHA is
based on Title
lenges the
adopted
criteria
to deter-
making it an unlawful
practice
business
eligibility
mine
for the
pro-
new benefit
“refuse to
allow female employee affect
gram. The
could
not have been
ed
pregnancy, childbirth or related medi
brought
Second,
earlier.
sys-
the net credit
cal conditions ...
receive
same
[t]o
used
tem
to calculate eligibility under the
or privileges
benefits
of employment grant
*4
Early
Opportunity
Retirement
is not facial-
ed
that employer
persons
to other
not so
ly neutral.
system
The
used to determine
affected ...
including to take disability or
eligibility facially
against
discriminates
leave_”
sick
Cal.Gov’t
Code
system
The
women.
distin-
12945(b)(1). Because Pallas
§
has stated a
guishes
similarly
situated employ-
claim,
Title VII
she has also stated a claim
ees: female employees
pri-
who took leave
under the FEHA.
toor
1979 due
a pregnancy-related
to
dis-
ability
employees
and
who took
prior
leave
Pallas
also
has
stated a
cogni
claim
to 1979 for
disabilities.
zable under ERISA.
challenges
Pallas
manner in
Supreme
Early
which the
controlling
precedent
Op
Retirement
is
portunity program
Bazemore v. Friday,
applied
was
to her. Cal
(1986).
S.Ct.
of
In
culation
Baze-
service term for purposes of
more,
had,
prior
employer
eligibility
program
the enact-
is
subject
an act
VII,
ment of Title
separate,
maintained two
to review for breach
fiduciary
duty.
racially segregated work
paid
forces and
Menhorn v. Firestone
Co.,
Tire & Rubber
whites more than blacks. The Court held
(9th
738 F.2d
Cir.1984).
1502-03
Pal
pay disparities
which remained after
alleges
las
that Pacific Bell breached its
the enactment of Title VII were unlawful.
fiduciary duty by failing to act in the inter
“Each week’s paycheck that delivers less to
plan
ests of
participants. Discrimination
a black than
similarly
to a
situated white is
constitutes a fiduciary
purposes
breach for
wrong
a
VII,
actionable under Title
regard-
See,
of ERISA.
e.g., Elser
I.A.M.
Na
less of the fact
pattern
that this
begun
was
Fund,
(9th
tional Pension
F.2d
prior to the effective date of Title VII.” 478 Cir.1982),
denied,
cert.
464 U.S.
395-96,
U.S. at
Act. While the act of discriminating English poet, against not, itself, Pallas in 1972 is action- melancholy “a tale able, Pacific Bell is liable for its decision things long ago, Of done and ill-done.” discriminate Pallas in 1987 on the basis of complaint Pallas’s my In interpretation Congressional states a valid under VII. legislation2 Title and authoritative case memory, 1. From 2000e(k), I think John 2000e-2(a) Ford was the and 2000e- 2(h), fully author of these lines. which will be discussed herein- after. Bazemore, violation. support a title VII have which we a situation we confront law3 relies, majority ap- upon which remedy. supra, power to alleviate no recovery may not plain that simply ap- “While has makes company telephone pellee of discrimi- acts pre-1972 permitted it system,4 which uses seniority plied a this discrimina- nation, according many kinds to the extent the criterion 1972, liability did after benefits, perpetuated appellant tion was 395, 106 qualify for seniority imposed.” enough may be not have dispari- sought. actual In Bazemore which S.Ct. at early retirement with white black and ty between simply a method seniority system A In exist. Jus- respect pay continued calcula- record-keeping and mathematical “Each phrase, trenchant Brennan’s tice employ- long an how determines tion to a paycheck that delivers less week’s employer. Econom- has worked ee is a similarly situated to a white black science” “the dismal called ics has been VII, regard- Title under wrong actionable time might exclude all rigorous economist begun pattern was the fact that less of pro- employee on actual by the spent date of VII.” the effective prior to policy and public Sound work. ductive current there discrimi- Bazemore however, self-interest, sure- corporate even *5 being practiced. nation off due of time work the inclusion ly permit work- or unhealthful injuries job-related to contrast, bar, all that by case at In the disease, indeed, dis- conditions, or, ing currently doing is is telephone company the prevent- condition ability, or other medical seniority system, fide a bona applying his or performing ing the from face, discriminatory its on is not which telephone job in normal fashion. her by Congress.7 authorized specifically has al- at bar in the case company’s plan as company, the activity of current Such leave but excluded ways included medical stated, simply exami- previously consists seniority. computing in personal leave adding company’s records and nation of in the case at bar worked for employee has problem involved time the up the legisla- up until the fact that those records. from company, stems as disclosed com- by Congress in 19785 the can telephone company tion enacted nor the Neither we cannot, leave for women pany like history. counted We change erase leave, as not medical personal as they claims comical the Communists’ then not unlawful. action leave.6 Such was in com- inventions now all useful invented compa- law the of the 1978 Upon enactment past. use, falsify the alter or mon continues, pregnan- count ny began, and Pilate, say, with Pontius company can cy as medical leave. leave written, I have written.”8 I have “What familiar in the Or, eloquently stated requires cur- case law The authoritative Rubaiyat: passage of order discrimination rent unlawful 1972], appellant’s pregnancy in Evans, time [of 431 97 At v. U.S. See United Airlines 3. policies required disabled Telephone's (1977), L.Ed.2d S.Ct. 52 571 Bazemore personal leaves employees to take pregnant Friday, v. tempo- disability Persons leaves. (1986), will be discussed instead L.Ed.2d preg- rarily reasons than disabled for fully hereinafter. more disability given leaves nancy while were unable work. were company be Surviving from its resulting in case fore celebrated antitrust 2, supra. note 7. See system. See breakup & T. A.T. old Co., at., F.Supp. U.S. Western Electric company did that the It is true 19:22. Jn. (D.D.C.1982), aff'd. 460 131 1240, give several adjust appellant’s her record (1983); opinions in further 75 L.Ed.2d (but enough qualify her (1983), F.Supp. 1057 F.Supp. and 569 569 (1983). sought). think this early I retirement she opinion accepted her doctor’s adjustment rather to work was to return able 92 Stat. Act October company To contend doctor's. 2000e(k). gen- U.S.C. company’s adjustment defeats such seniority non-discriminatory on its reliance eral plan my 5): courts which me of those (p. reminds explained appellant’s brief 6. As writes; Moving Finger and, having writ, your on: nor Piety
Moves all nor Wit Line, lure it back to
Shall cancel half a your all Tears
Nor wash out a Word of
it.9
Appellant’s grievance belongs one
history; it is not a current violation Currently
law.10 there is no discrimination pregnant
between and non-pregnant wom-
en, nor women and men sex-specific
with a prostate ailment such as (which
condition argu- mentioned
ment), or men mutually with other avail-
able medical reasons absence from I
work. Hence would affirm the Title
VII claim.11 agree
I majority with the on the ERISA
claim. *6 America,
UNITED STATES of
Plaintiff-Appellee, MITCHELTREE,
JoAnn
Defendant-Appellant.
No. 89-6406.
United States Appeals, Court of
Tenth Circuit.
July law appearance school treated special century specific and without sexual animus object jurisdiction to the of the provided court as consti- only years' have alumni of five tuting acceptance jurisdiction of its over the standing eligible. arguen- or more are [Assume merits case. do requirement also that such a is reasonable (like age Congress), minimum for service in the Rubaiyat and also that it Khayyam (Fitzgerald, now unlawful Omar would tr.) Stanza 71. exclude women from the but was School not year to the first were admitted during deanship Erwin Is Griswold]. it situation in the case at bar can be illus- plain chronology as a matter of hypothetical Suppose trated appellant School, case. ineligible years’ she would be for lack of the five graduate were a of Harvard Law standing required election to that office? years and that three after women were School, admitted first to Harvard Law states, sought imaginary election to the Judge parties agree office of Histo- 11.As Schroeder "the Association, rian eligible of the Alumni analysis” to be legal applies appel- that the same quarter post by-laws legislation. over a of a lant’s claims under California