Swing Voter Kennedy Sympathetic to AT&T in Leave Bias Case

Justice Anthony M. Kennedy, who cast the deciding vote in a 2007 case barring recovery for longtime pay discrimination, appeared to favor AT&T over female workers in a pension bias case argued Wednesday.

Kennedy may once again be the swing vote, if the justices’ comments yesterday are any indication, according to Dow Jones Newswires. He indicated concern about the effects of a potential ruling in favor of female workers who claim AT&T discriminated against them by failing to credit time for pregnancy leaves in their calculation of retirement benefits.

Kennedy said a ruling against AT&T could increase its pension costs or force it to cut benefits for employees not covered by the suit, the Dow Jones story says. "Shouldn't that possibility be weighed in the decision of this court?” Kennedy asked.

Kennedy was in the majority in a 5-4 decision denying the equal pay claim of Lilly Ledbetter, who sued because she was making $6,000 less than the lowest-paid man doing similar work. The majority held that the time for filing a pay discrimination complaint begins running with the original salary decision, and there is not a new violation with each new paycheck.

The issues in AT&T v. Hulteen are “broadly similar” to those in the Ledbetter case, the New York Times reports. The plaintiffs sued under the Pregnancy Discrimination Act of 1978, contending the company should have included leave time taken before passage of the law in its pension calculation.

Supporting AT&T, the federal government argued a federal appeals court ruling against the company “impermissibly imposes retroactive liability."