*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). 50 L.Ed.2d 343

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, 97 S.Ct. at 1888-89.

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 106 S.Ct. at 3006. Al- 78 L.Ed.2d allega though employer was not for liable acts complaint in the tions are sup sufficient to of discrimination that occurred prior to the port an ERISA claim. enactment of Title the Court held that judgment of the district court employer an be could held for dis- liable REVERSED and the case is REMANDED. crimination perpetuated after the Act took effect. at Id. 106 S.Ct. at 3006. DUMBAULD, Judge, District In Bell program a instituted dissenting: adopted, thereby perpetuated, and acts discrimination which occurred Respectfully, and I regretfully, dissent. enactment of Pregnancy Discrimination Appellant us, portrays to in the words of

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