Some pundits thought we might be getting an early insight into the Supreme Court's view of the Lily Ledbetter Act. However, after permitting supplemental briefing on the act, the U.S. Supreme Court offered no analysis of it in the Court's pregnancy discrimination decision in AT&T Corp. v. Hulteen (2009) __ U.S. __. The case held that an employer does not necessarily violate the Pregnancy Discrimination Act when it pays pension benefits calculated in part under an accrual rule, applied only pre-PDA, that gave less retirement credit for pregnancy than for medical leave generally. Because AT&T’s pension payments accord with a bona fide seniority system’s terms, they are insulated from challenge under Title VII § 703(h). The majority found that the Ledbetter Act did not apply.
We have accepted supplemental briefing after the ar-gument on the possible effect on this case of the recentamendment to §706(e) of Title VII, adopted in response to Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007), and dealing specifically with discrimination in compensation:
“For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in com-pensation in violation of this title, when a discrimina-tory compensation decision or other practice is adopted, when an individual becomes subject to a dis-criminatory compensation decision or other practice,or when an individual is affected by application of a discriminatory compensation decision or other prac-tice, including each time wages, benefits, or othercompensation is paid, resulting in whole or in partfrom such a decision or other practice.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111–2, §3(A), 123 Stat.5–6.
Hulteen argues that payment of the pension benefits atissue in this case marks the moment at which she “is affected by application of a discriminatory compensation decision or other practice,” and she reads the statute as providing that such a “decision or other practice” may not be applied to her disadvantage.
But the answer to this claim is essentially the same as the answer to Hulteen’s argument that §706(e)(2) helpsher, supra, at 11–12. For the reasons already discussed, AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been “affected by application of a discriminatory compensation decision or other practice.” §3(A), 123 Stat. 6.
The dissent by Justice Ginburg made no mention of the Ledbetter Act.