EEOC v. Ameritech
Reply Brief
Aug. 23, 2004 (draft brief filed)

                          No. 04-3496
            _________________________________________

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE SIXTH CIRCUIT
            _________________________________________

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

     Plaintiff-Appellant,

     v.

AMERITECH SERVICES, INC.,

     Defendant-Appellee.
          ______________________________________________
 
        On Appeal from the United States District Court
               for the Northern District of Ohio
          ______________________________________________

             FINAL REPLY BRIEF OF EQUAL EMPLOYMENT
              OPPORTUNITY COMMISSION AS APPELLANT
         ______________________________________________



JAMES L. LEE
Deputy General Counsel

VINCENT J. BLACKWOOD
Acting Associate General Counsel

LORRAINE C. DAVIS
Assistant General Counsel

BENJAMIN N. GUTMAN
Attorney









U.S. EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION
1801 L Street, N.W., 7th Floor
Washington, DC 20507
(202) 663-4728                       TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . ii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .1

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

A.   Each application of Ameritech's seniority system is a new unlawful act1

  1.      Ameritech's seniority policy intentionally discriminates
     on the basis of pregnancy . . . . . . . . . . . . . . . . .2

  2.      Every application of a discriminatory seniority system is
     actionable, not just the first one. . . . . . . . . . . . .6

  3.      Section 2000e-5(e)(2) applies to seniority rules that were
     legal when adopted. . . . . . . . . . . . . . . . . . . . 10

B.   This case does not involve retroactive application of the PDA12

C. Ameritech's other arguments are meritless . . . . . . . . . 14

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Certificate of Compliance

Certificate of Service
                                

                      TABLE OF AUTHORITIES

                             Cases

Armstrong v. Flowers Hosp.,
  33 F.3d 1308 (11th Cir. 1994). . . . . . . . . . . . . . . . .3

Bangerter v. Orem City Corp.,
  46 F.3d 1491 (10th Cir. 1995). . . . . . . . . . . . . . . .3-4

Bazemore v. Friday,
  478 U.S. 385 (1986). . . . . . . . . . . . . . . . . . . . . 14

Bronze Shields, Inc. v. N.J. Dep't of Civil Serv.,
  667 F.2d 1074 (3d Cir. 1981) . . . . . . . . . . . . . . . . .9

Brunet v. City of Columbus,
  1 F.3d 390 (6th Cir. 1993) . . . . . . . . . . . . . . . . . .8

Carter v. West Publ'g Co.,
  225 F.3d 1258 (11th Cir. 2000) . . . . . . . . . . . . . . . .9

Conlin v. Blanchard,
  890 F.2d 811 (6th Cir. 1989) . . . . . . . . . . . . . . . .8-9

Cox v. City of Memphis,
  230 F.3d 199 (6th Cir. 2000) . . . . . . . . . . . . . . . . .8

Del. State Coll. v. Ricks,
  449 U.S. 250 (1980). . . . . . . . . . . . . . . . . . . . . .8

Dixon v. Anderson,
  928 F.2d 212 (6th Cir. 1991) . . . . . . . . . . . . . . . . .8

Dobbs v. City of Atlanta,
  606 F.2d 557 (5th Cir. 1979) . . . . . . . . . . . . . . . . .9

EEOC v. Joe's Stone Crab,
  220 F.3d 1263 (11th Cir. 2000) . . . . . . . . . . . . . . . .2

EEOC v. McCall Printing Co.,
  633 F.2d 1232 (6th Cir. 1980). . . . . . . . . . . . . . . . .9

EEOC v. Penton Indus. Publ'g Co.,
  851 F.2d 835 (6th Cir. 1988) . . . . . . . . . . . . . . . . .9

Frank v. United Airlines,
  216 F.3d 845 (9th Cir. 2000) . . . . . . . . . . . . . . . . .3

Int'l Bhd. of Teamsters v. United States,
  431 U.S. 324 (1977). . . . . . . . . . . . . . . . . . . . .5-6

Kolstad v. Am. Dental Ass'n,
  527 U.S. 526 (1999). . . . . . . . . . . . . . . . . . . . .4-5

Lockheed Corp. v. Spink,
  517 U.S. 882 (1996). . . . . . . . . . . . . . . . . . . .12-13

L.A. Dept' fo Water & Power v. Manhart
  435 U.S. 702 (1978). . . . . . . . . . . . . . . . . . . . . 15

Massarsky v. Gen. Motors Corp.,
  706 F.2d 111 (3d Cir. 1983). . . . . . . . . . . . . . . . . .3

Maynard v. City of San Jose,
  37 F.3d 1396 (9th Cir. 1994) . . . . . . . . . . . . . . . . .2

McLaughlin v. Richard Shoe Co.,
  486 U.S. 128 (1988). . . . . . . . . . . . . . . . . . . . .4-5

Pandazides v. Va. Bd. of Educ.,
  13 F.3d 823 (4th Cir. 1994). . . . . . . . . . . . . . . . . .3

Regions Hosp. v. Shalala,
  522 U.S. 448 (1998). . . . . . . . . . . . . . . . . . . .13-14

Turic v. Holland Hospitality,
  85 F.3d 1211 (6th Cir. 1996) . . . . . . . . . . . . . . . . .5

United Air Lines v. Evans,
  431 U.S. 533 (1977). . . . . . . . . . . . . . . . . . . . .5-6


                            Statutes

Equal Pay Act of 1963,
  29 U.S.C. 206(d) . . . . . . . . . . . . . . . . . . . .14-15

Title VII of the Civil Rights Act of 1964,
  42 U.S.C. 2000e et seq.. . . . . . . . . . . . . . . . passim

  2000e-5(e)(2). . . . . . . . . . . . . . . . . . . . . passim

Pregnancy Discrimination Act of 1978,
  Pub. L. No. 95-555, 92 Stat. 2076 (1978),
  codified in part at 42 U.S.C. 2000e(k) . . . . . . . . passim


                        Other Authority

29 C.F.R. pt. 1604 app.. . . . . . . . . . . . . . . . . . . . 10

29 C.F.R. 1620.10. . . . . . . . . . . . . . . . . . . . . . 14

29 C.F.R. 1620.11. . . . . . . . . . . . . . . . . . . . . . 14

H.R. Rep. 102-40(II) (1991),
  reprinted in 1991 U.S.C.C.A.N. 694 . . . . . . . . . . . . . 11

                          INTRODUCTION
     The EEOC's position is straightforward: Ameritech's seniority system even
today gives less credit for some pregnancy-related leave than for comparable
medical leave.  Because this system is intentionally discriminatory, the company
violates Title VII every time it uses seniority to deny benefits to women who were
not credited for their past pregnancy-related leave.
     Ameritech offers a parade of mostly half-hearted objections to this line of
reasoning.  In this brief, we focus on the pivotal issues at the core of this case: that
Ameritech's seniority system is intentionally discriminatory; that every application
of an intentionally discriminatory seniority system is an unlawful act; and that these
conclusions do not entail retroactive application of the PDA.

                             ARGUMENT
A.   Each application of Ameritech's seniority system is a new unlawful act.
     The key to analyzing this case is 42 U.S.C. 2000e-5(e)(2), which provides
that an unlawful employment practice occurs when an employee is injured by
application of a seniority system "adopted for an intentionally discriminatory
purpose" in violation of Title VII.  Because   as explained below   Ameritech's
seniority system intentionally discriminates on the basis of pregnancy, 2000e-
5(e)(2) establishes that the company commits an unlawful employment practice
every time it uses its seniority system to deny pension benefits to a woman who
lacks sufficient seniority because she was not credited for pregnancy-related leave.
     Ameritech tries to dodge the rule of 2000e-5(e)(2) in three ways: first, by
denying that its seniority policy was adopted for an intentionally discriminatory
purpose in violation of Title VII; second, by suggesting that the every-application-
discriminates rule of 2000e-5(e)(2) covers only the first time that a seniority
system is applied to an individual; and third, by suggesting that 2000e-5(e)(2)
does not apply to a seniority system that was legal when adopted.  None of these
contentions withstands scrutiny.

1.   Ameritech's seniority policy intentionally discriminates on the basis of
     pregnancy.

     Intentional discrimination on the basis of pregnancy means deliberately
applying a different and disadvantageous standard to an employee because she is or
was pregnant.  See EEOC v. Joe's Stone Crab, 220 F.3d 1263, 1283 (11th Cir.
2000) (plaintiff in gender-discrimination case need show only that "women were
intentionally treated differently" because of their gender); Maynard v. City of San
Jose, 37 F.3d 1396, 1404 (9th Cir. 1994) ("Intentional discrimination means that a
defendant acted at least in part because of a plaintiff's protected status.").  In this
sense, the term "intentional discrimination" is synonymous with disparate treatment. 
Armstrong v. Flowers Hosp., 33 F.3d 1308, 1313 (11th Cir. 1994); Pandazides v.
Va. Bd. of Educ., 13 F.3d 823, 830 n.9 (4th Cir. 1994).  When an employer's policy
treats pregnant and non-pregnant employees differently on its face, the policy by
definition amounts to disparate treatment.  See Frank v. United Airlines, 216 F.3d
845, 853 (9th Cir. 2000); see also Massarsky v. Gen. Motors Corp., 706 F.2d 111,
119 (3d Cir. 1983) ("[W]here an employer's policy or practice is discriminatory on
its face, it is unnecessary for the plaintiff to make a separate showing of intent to
discriminate.").
     Ameritech treats its employees differently depending on whether or not they
were pregnant.  The company's seniority computation operates differently if an
employee took pregnancy-related leave before the PDA than if the employee took
other forms of medical leave during that period.  This is not, as Ameritech suggests
by using the term "disparate impact" (Ameritech br. at 21), a neutral seniority-
counting rule that merely happens to affect formerly pregnant employees more
harshly.  The seniority-counting rule differs because of an employee's past
pregnancy.  There is no way to avoid the conclusion that Ameritech adopted this
seniority-counting rule because it wished to treat pregnant and non-pregnant
employees differently.  See Bangerter v. Orem City Corp., 46 F.3d 1491, 1500
(10th Cir. 1995) (When policies "facially single out" a protected group and "apply
different rules to them . . . the discriminatory intent and purpose of [the policies] are
apparent on their face.  Whether such discrimination is legal or illegal remains to be
determined, but there can be no doubt that the[y] are discriminatory.").  Whatever
Ameritech's subjective reasons may have been for developing this policy   good,
bad, or neutral   the policy constitutes disparate treatment on its face and, thus,
was "adopted for an intentionally discriminatory purpose" within the meaning of
2000e-5(e)(2).
     Ameritech tries to blunt the force of this argument by contending that it
honestly did not believe that its post-PDA actions violated Title VII, and therefore it
could not have intended to discriminate.  (Ameritech br. at 19-20.)  This contention
misunderstands the term "intentional discrimination."  The relevant "intention" is
the intent to differentiate on the basis of a characteristic   here, pregnancy   that
is protected by Title VII.  It is not, as Ameritech would have it, the intent to violate
the law.  To be sure, the availability of punitive damages turns on whether the
employer knew or should have known that its actions violated federal law.  See
Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 536-37 (1999); see also McLaughlin v.
Richard Shoe Co., 486 U.S. 128, 133 (1988) (extended statute of limitations for
"willful" violations of Fair Labor Standards Act depends on knowledge of
employer).  But as the Supreme Court explained in Kolstad, an employer can intend
to discriminate   and therefore violate Title VII   without intending to violate
Title VII or even knowing that it is doing so:
     There will be circumstances where intentional discrimination does not
     give rise to punitive damages liability under this standard.  In some
     instances, the employer may simply be unaware of the relevant federal
     prohibition.  There will be cases, moreover, in which the employer
     discriminates with the distinct belief that its discrimination is lawful. 
     The underlying theory of discrimination may be novel or otherwise
     poorly recognized, or an employer may reasonably believe that its
     discrimination satisfies a bona fide occupational qualification defense
     or other statutory exception to liabillity.

527 U.S. at 536-37.  Judge Batchelder has put it simply: Title VII's prohibition on
intentional discrimination "makes no exception for discriminatory acts that an
employer would not reasonably have known to be prohibited."  Turic v. Holland
Hospitality, 85 F.3d 1211, 1217 (6th Cir. 1996) (concurring opinion).  Thus,
Ameritech's protest that it "cannot have intended to discriminate unlawfully"
(Ameritech br. at 19 (emphasis added)) is irrelevant at the liability stage.  There is
no good-faith defense to liability for employment discrimination.
     Because it is intentionally discriminatory, Ameritech's seniority policy is
quite different from those at issue in International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977), and United Air Lines v. Evans, 431 U.S. 553
(1977), which Ameritech relies on.  (Ameritech br. at 13-14.)  In both Teamsters
and Evans, the seniority systems themselves were completely nondiscriminatory. 
Although the systems exacerbated the effect of other, prior, non-seniority-related
discrimination by the companies, neither system had the sort of discriminatory
seniority-counting rule that is at issue in this case.  Teamsters, 431 U.S. at 355-56;
Evans, 431 U.S. at 555 & n.6.  In Evans, for example, the seniority rule   no credit
for prior service following a break in service   applied equally to men and women
who had left the company.  431 U.S. at 555 & n.6.  Similarly, the rule at issue in
Teamsters   that competitive seniority was determined by bargaining unit rather
than companywide   applied "equally to all races and ethnic groups."  431 U.S. at
355-56.  In this case, by contrast, the seniority rule itself discriminates: Pre-PDA
leave counts toward seniority if the leave is medical but not if it is pregnancy-
related.  It follows that Ameritech's seniority system intentionally discriminates on
the basis of pregnancy.

2.   Every application of a discriminatory seniority system is actionable, not
     just the first one.

     Ameritech suggests on page 37 of its brief that under 2000e-5(e)(2), an
unlawful employment practice occurs only the first time a discriminatory rule is
applied against a particular employee.  This interpretation finds no support in the
text or history of 2000e-5(e)(2).  The relevant clause, which states that an
unlawful employment practice occurs "when a person aggrieved is injured by the
application of the seniority system or provision of the system," does not contain the
word "first"   although Congress easily could have included it.
     More importantly, though, Ameritech's interpretation cannot be squared with
the core purpose of 2000e-5(e)(2).  As we explained in our opening brief at page
24, Congress enacted 2000e-5(e)(2) in large part to prevent employees from
having to sue their employers right at the outset of their employment relationship,
before they have suffered real injury from the discriminatory rule.  Ameritech's rule
would subvert this goal by forcing employees to sue almost immediately after
joining the workforce.  For example, an employee who began working at Ameritech
in 1975 and took pregnancy-related leave that year would have had to sue
immediately even if the only tangible effect of the discrimination would not be
manifested for 30 years, when the employee was set to retire.  This is precisely the
scenario Congress sought to head off with the Civil Rights Act of 1991.
     The better interpretation of 2000e-5(e)(2) is in accordance with its plain
meaning: A seniority system that discriminates intentionally (whether or not the
discrimination is evident on its face, as it is here) can be challenged any time it is
used to deny a benefit to an employee, even long after the system was first adopted
or applied against a particular employee.
     Ameritech therefore cannot rely on the general principle of Delaware State
College v. Ricks, 449 U.S. 250 (1980), that Title VII's statute of limitation runs
from when the discriminatory act occurs, not when its effects become most painful. 
(Ameritech br. at 28-31.)  Congress has modified this rule with respect to seniority
systems to provide that a new discriminatory act occurs every time the effect of
discrimination is felt.  Ameritech would have this Court hold that a seniority rule is
applied only when it is first used to make a seniority computation, but 2000e-
5(e)(2) provides otherwise by stating that an unlawful employment practice occurs
whenever an employee is injured by application of the seniority system.  See Brunet
v. City of Columbus, 1 F.3d 390, 402 (6th Cir. 1993) ("Section 2000e-5(e)(2)
provides for the accrual of a cause of action when the consequences of the
discriminatory act are felt by the plaintiff . . . .") (emphasis added).  Discriminatory
seniority rules were not at issue in Ricks   which involved an allegedly
discriminatory decision not to grant tenure, 449 U.S. at 257   or other cases cited
by Ameritech on pages 28-31 of its brief.  See Cox v. City of Memphis, 230 F.3d
199, 201 (6th Cir. 2000) (facially neutral promotional list based on allegedly
discriminatory testing process); Dixon v. Anderson, 928 F.2d 212, 214 (6th Cir.
1991) (Ohio "double dipping" law for state employees); Conlin v. Blanchard, 890
F.2d 811, 815 (6th Cir. 1989) (past denials of promotions to men under affirmative-
action program); EEOC v. Penton Indus. Publ'g Co., 851 F.2d 835, 838 (6th Cir.
1988) (isolated past incident in which male had been paid more than female); EEOC
v. McCall Printing Co., 633 F.2d 1232, 1234 (6th Cir. 1980) (conciliation
agreement more favorable to women than past agreements were to black
employees); Carter v. West Publ'g Co., 225 F.3d 1258, 1265 (11th Cir. 2000)
(past employee stock-purchase program); Bronze Shields, Inc. v. N.J. Dep't of Civil
Serv., 667 F.2d 1074, 1083 (3d Cir. 1981) (neutral hiring roster); Dobbs v. City of
Atlanta, 606 F.2d 557, 559 (5th Cir. 1979) (neutral pension plans that depend on
position held).
     Ameritech speculates that starting a new limitations period every time that a
discriminatory seniority system is applied would be bad policy (Ameritech br. at 38)
  although, as we explained in our opening brief at 23-24, proper application of
2000e-5(e)(2) is likely to reduce the amount of litigation by eliminating the need
to file premature, speculative, and unproductive lawsuits.  In any event, it is for
Congress, not Ameritech, to decide what policy best serves the public interest. 
Congress has spoken through 2000e-5(e)(2), and this Court should enforce
Congress's chosen policy.

3.   Section 2000e-5(e)(2) applies to seniority rules that were legal when
     adopted.

     Ameritech also contends that 2000e-5(e)(2) applies only if the seniority
system violated Title VII when it was adopted.  Because, according to Ameritech,
pregnancy discrimination was legal when the less-credit-for-pregnancy-leave rule
was adopted, 2000e-5(e)(2) should not apply.  Even assuming Ameritech is
correct that before the PDA it was legal to discriminate on the basis of pregnancy in
seniority-accrual rules, the company is incorrect that 2000e-5(e)(2) would not
apply to this case.
     Section 2000e-5(e)(2) applies even to seniority systems that were legal when
adopted.  Ameritech's contrary interpretation would undermine the purpose of
2000e-5(e)(2) because it would mean that any seniority system adopted before
Title VII was enacted 1964, even if adopted for discriminatory reasons, would be
immune from challenge.  As Ameritech recognizes on page 37 of its brief, however,
one of the primary purposes of adding 2000e-5(e)(2) was to ensure that
"discriminatory practices in existence when Title VII became law" could be
challenged when they are applied today.  H.R. Rep. No. 102-40(II), at 23 (1991),
reprinted in 1991 U.S.C.C.A.N. 694, 716.
     At bottom, Ameritech seeks to convince this Court that the company ceased
to discriminate when it repealed its less-credit-for-pregnancy-leave rule
prospectively.  This view is not correct.  The rule continues to be applied because
seniority calculations are still made pursuant to it.  Ameritech today counts or
ignores pre-PDA leave using the pregnancy-based rule.  For that reason, it is
inaccurate to say that Ameritech "abandoned" (Ameritech br. at 1) its discriminatory
policy when the PDA was enacted.  The outcome of this case should be the same
whether or not Ameritech abandoned the rule prospectively.
     A hypothetical may clarify the matter.  Suppose that an employee took
pregnancy-related leave in 1975 but not again after the PDA came into force.  The
company would not give her full seniority credit for any of her pregnancy-related
leave.  This is true regardless of whether the company gives full credit to other
employees who took pregnancy-related leave at a later date.  In determining whether
the company discriminated against her, why should it matter if the company granted
full seniority credit to other employees who took post-PDA leave?  The effect on
her is the same either way.  In short, it does not matter whether the company has
continued to discriminate in other situations.  The PDA prohibits pregnancy-based
seniority-counting rules, and under 2000e-5(e)(2) those rules can be challenged
any time they are used to an employee's detriment.

B.   This case does not involve retroactive application of the PDA.

     Section 2000e-5(e)(2) also helps explain why this case does not involve
retroactive application of the PDA, as we explained in our opening brief at 20-22. 
Ameritech's reliance on Lockheed Corp v. Spink, 517 U.S. 882 (1996), is therefore
misplaced.  In Lockheed, the employer did not allow Spink to contribute to a
retirement plan because of his age, a practice that was legal at the time.  Id. at 885. 
When the law changed to prohibit age-based exclusions, the employer allowed
Spink to begin contributing.  Id.  Spink nonetheless sued under the new prohibition
against excluding employees from pension plans on the basis of age.  Id.  As the
Supreme Court straightforwardly recognized, this claim required retroactive
application of the new law, because Spink was excluded from the pension plan only
before the new law came into effect.
     In this case, by contrast, we are not challenging Ameritech's treatment of
pregnancy-related leave in the 1970s.  Rather, we are challenging application in the
1990s of a seniority policy that treats pre-PDA pregnancy-related leave less
favorably than other medical leave taken in that period.  Under 2000e-5(e)(2), this
is a new unlawful act of discrimination   one that took place years after the PDA
came into effect.  No analog to 2000e-5(e)(2) was at issue in Lockheed, and no
claim in that case was tied to acts that happened after the law was changed.  The
better comparison, as we argued in our opening brief at 21, is to Regions Hospital v.
Shalala, 522 U.S. 448 (1998).  That case involved a decision by the Secretary of
Health and Human Services to reaudit, several years after the fact, reimbursement
data from fiscal year 1984.  Id. at 453-54.  The reaudits were conducted under a
1986 law that changed the reimbursement rules.  Id.  The new calculations were not
used to change payments actually due for fiscal year 1984, but instead were to be
used as a baseline for computing reimbursements in future years.  Id.  Because the
reaudits were used only for future decisions and not to undo past actions, the
Supreme Court rejected the contention that this amounted to retroactive application
of the new statute.  Id. at 456.  Likewise, the PDA prohibits Ameritech from
continuing to use pregnancy-based seniority calculations for decisions made
prospectively.  This does not entail retroactive application of the PDA. 
Surprisingly, Ameritech does not try to distinguish   or even cite   the Regions
Hospital decision.

C.  Ameritech's other arguments are meritless.

     Ameritech offers a pastiche of other arguments that require little response. 
Our opening brief thoroughly explains, for example, why Bazemore   rather than
Evans   provides a better fit for this case.  (EEOC br. at 11-15; see Ameritech br.
at 13-16, 34-36.)  It also adequately covers why the bona-fide-seniority-system
provisions of Title VII and the Equal Pay Act do not apply to seniority systems,
such as Ameritech's, that are themselves intentionally discriminatory.  (EEOC br. at
17-18; see Ameritech br. at 16-18, 39.)
     Ameritech suggests offhandedly    although it provides no argument   that
it is "far from clear" that the Equal Pay Act applies, because the statute covers only
the payment of "wages."  (Ameritech br. at 39.)  It is perfectly clear, however, that
the controlling regulation defines "wages" to encompass "all payments made to [or
on behalf of] an employee as remuneration for employment," including fringe
benefits such as retirement benefits.  29 C.F.R. 1620.10, 1620.11(a) (brackets in
original).  In this case, the EEOC challenges retirement benefits paid by Ameritech
under a seniority system that, because it is facially discriminatory, is not bona fide. 
Under the regulation, this practice violates the Equal Pay Act's prohibition against
discrimination in wages.
     Ameritech also prematurely expresses concern about the relief that the EEOC
seeks in this case.  Ameritech speculates, for example, about whether the EEOC
could obtain relief on behalf of individuals whose cases were decided by the
Seventh Circuit (Ameritech br. at 11)   even though those individuals are only a
fraction of the potential claimants in this case   or whether relief would disrupt
operation of the company's pension fund (Ameritech br. at 25).  These matters
should be addressed on remand when the district court exercises its equitable
powers to craft a remedy for Ameritech's violations.  See, e.g., L.A. Dep't of Water
& Power v. Manhart, 435 U.S. 702, 718-23 (1978) (in determining "appropriate"
relief, the district court must minimize the harm to innocent third parties, such as
other pension recipients).  While we know of no reason why the district court should
not order full relief in this case   and Ameritech certainly has not made the case
against full relief   the matter is premature, and this Court need not delve into it at
this stage.

                            CONCLUSION
     This Court should direct that summary judgment be entered in the EEOC's
favor on liability and remand for the district court to order appropriate relief.
                             Respectfully submitted,
                             JAMES L. LEE
                             Deputy General Counsel
                             
                             VINCENT J. BLACKWOOD
                             Acting Associate General Counsel
                             
                             LORRAINE C. DAVIS
                             Assistant General Counsel 
                             
                             
                             __________________________
                             BENJAMIN N. GUTMAN
                             Attorney
                             
                             U.S. EQUAL EMPLOYMENT
                               OPPORTUNITY COMMISSION
                             1801 L Street, N.W., 7th Floor
                             Washington, DC 20507
                             (202) 663-4728

September 10, 2004


                    CERTIFICATE OF COMPLIANCE
     This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 3,475 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
     This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Corel
WordPerfect 9 in 14-point Times New Roman.

                             ____________________________
                             BENJAMIN N. GUTMAN
September 10, 2004

                      CERTIFICATE OF SERVICE
     I certify that on September 10, 2004, I caused copies of this brief to be served
by first-class mail on:
Office of the Clerk
United States Court of Appeal for the Sixth Circuit
100 East Fifth Street, Room 532
Cincinnati, OH 45202-3988

Jeffrey W. Sarles
Mayer, Brown, Rowe & Maw LLP
190 South LaSalle Street, Suite 3431
Chicago, IL 60603-3441
Attorney for Defendant-Appellee
                             
                             
                             ____________________________
                             BENJAMIN N. GUTMAN 
                             Attorney
                             
                             U.S. EQUAL EMPLOYMENT
                               OPPORTUNITY COMMISSION
                             Office of General Counsel
                             1801 L Street, N.W., 7th Floor
                             Washington, DC 20507
                             (202) 663-4728