overrule house for specific valid because it was incorrect at the time it was decided and has been further undermined by subsequent authority first and foremost palace's you reconcile irreconcilable conflict with the supreme court's decision united airlines action and this is the most critical part does not engage in a new act of discrimination in violation of title seven by failing to restore service credit seniority lost as a result of that no longer actionable con and in this case is alleged to have been well i'm not even sure it's been alleged to have been unlawful at the time but for purposes of argument it was the denial of service credit in both cases the actual conduct alleged allegedly is the post in the act with refusal to restore seniority or service credit that flowed from that earlier decision and and evans hold squarely that the employer is allowed to treat that prior action as entitle to rely on it once it's no longer actionable and it does not commit the new violation of title seven by refusing to restore the service credit lost as a result of that condo in palace this court said  evans was rehired she said i'm entitled to my have my seniority back and your refusal to give it to me is a current violation of title seven same here the same palace this palace was denied full service credit for you and so it's no longer you no longer has any governing effect in the question right now is some summary judgment has been entered against eighteen t should that summary judgment be firmed were reversed and in order to decide that question we think the court should who had entered illegally and whose presence was a continuing violation under the under the law was claiming that the last of the rights to a certain removal procedure constituted a retroactive application the courts of that's effectively arguing a vested right to continue to violate the law in death really that would be like the employer in pays more saying because i've always violent because i've always paid black workers less than white workers for the same work and i have a vested right to continue  overrule palace and in a bank or otherwise well and if i read this correctly even if mark court were to determine that palace it's valid and has a continuing obligation then argue that it doesn't need to comply except with respect to the small number of plaintiffs in this case because it's a national corporation and operates nationally  honor i think we would then be bound with respect to all employees of the ninth circuit and that would receive a few problems because that may actually mean that we are bound by that throughout the nation because i don't think we can just dispy friendship between employees outside the ninth circuit which would mean we would have to go pregnancy was taken before the pregnancy discrimination act was enacted and because it was not challenged within the limitations period the service denials were lawful under evidence as a consequence the only way that continued reliance on the service credit calculation we're not benefits as a result when the service quick calculations were made here of the n c s just to look to see whether we were paying for pay disability or personal leaves if they were personal leaves then they were treated as entitle to service credit only for the first thirty days and and because they were kalki service critical conditions dictated by those policies those service credit calculations are now the equivalent of lawful decisions and the only way liability can be imposed on the basis of  restore service credit lost as a result of the policies when prior to the move the p d s there was no such duty both under gilbert but also under evidence because at the time when the let's assume you're right about t that if a statute is interpreted to require an employer to include cream ackman service years in the cost of acme benefit decision which is exactly what the allegation is here that statute applies retroactively and that what the plaintiffs are seeking that's exactly what palast required and that logic is plainly correct now in the supreme court the plaintiffs say well palace was speed was overruled on a different ground in the supreme court the supreme court had to have endorsed that logic because mr speaker argued to the streets of the supreme court not only that the statute at issue there the one thousand nine hundred six program was intended to have retroactive effect but even if it wasn't what he was seeking wasn't retroactive relief and the have to include service years before the effective date of an act and then a new statute comes along and says when making posts and benefit calculations you now must include use of service for which you used you previously have no legal but you do not have a right to recover for pre and that meant reflective date salary disparities under title seven the court noted that there might be such a right under under the fourteenth amendment you didn't address that quote those were for wages paid similarly situated to those people because at the time that there that they lost the service credit during the pregnancy leaves they were not entitled to them and at a bare minimum the fact that they never challenged it means that those decisions are legal so today they are not simila time when it's no longer subject to challenge that's very well what should have happened in the one nine hundred seventy nine is that they should have bought of the clerics who are really faction of pension benefits even though pension benefits were not due to be payable until a certain point in the future and might be speculative your honor actually they could they have the right to bring claims based on the loss of the service credit right then and there and that was the basis of the lawsuit that was in southwestern bell given credit for temporary disability due to pregnancy and experts thirty days if that pregnancy related leave occurred before the effective date of the p v a in one nine hundred seventy nine while giving full credit for other forms of repeat the a temporary disability in calculating everyone else's and woman who took leave prior to the p t a retires or anybody retires or is going to get benefits at that point a calculation is made and that calc of benefits and seventh circuit had essentially this issue in the ameritech case how can you distinguish what was going on there i think the facts were the same your honor i think that in america tac they and at that point they refused to give her credit but refusal to give her credit in that instance was a crock just that applied to everybody aren't we really talking about the current past discrimination which happen to be legal at the time as opposed to some sort of continuing discrimination no your honor i think that it is accurate to say that there is an effect statute answer the question well i think that the statute to that extent doesn't answer the question if i'm understanding you correctly your honor that perhaps differently than athens which wasn't covered by have tragic correct but i think the evidence also as justice brennan pointed out it was put more footnote in raise more said that the only practice that was considered to be an awful employment practice in evans was the terminations due to marriage and the time had run to file a claim on that the system by which she was denied service credit was applied to everybody regardless of the reason they were terminated and rehired and consequently that was not being to be treatment that was different for one group or another there was not dissimilar treatment of similarly situated persons and so evans is a different exactly because it was the denial of a benefit to pregnant women that was being to be a violation of title seven is analogous to our case unlike goldberg where it situation of a vacation accrual or calculation council for a t t said this doesn't really apply only to a retirement or pension situation but also to the cation and as i understand your point of course your your clients are only retiring after the hour let's pass but presumably they took advantage of various vacation accrual before the act was do you think if it were vacation being analyzed that the result would be the same assuming that the same accrual rules affected them because of the type of pregnancy leave they took if i'm understanding you limitations if it were i think asian situation or would you somehow get around morgan and say each time you need to take your vacation there is a new violation we say that it is each time a new violation we are not this is first of all the answer what i did the morgan part of this we are not using a continuing violation period at all in this case trying to take what is allegedly and i'm of practice and somehow pulling with it something that's outside the statue of limitations period that is not play here i don't know if that is responsive to your question or not yes we're not though i understand you're not is made we are not here saying that each retirement check is a new violation as in base more we are saying that there is a transaction namely the calculation of benefits that occurs after the as you file your charges within the hundred if i take that if i understand your argument there the calculation is made that the calculation is made on the basis of a foundation of service credits which were determined long before the pedialyte they were determined long before the p t a but in that regard i don't think there's any difference from base more days more the salary structure before title seven was perfectly legal it was use afterwards that became illegal we are making an analogous argument here that the use after the p g a of what may arguably  the last salary there we're we're not claiming here that the plaintiffs are entitled to anything that they lost before that the woman had lost a promotion creepy da because of the way her n c s date was calculated assuming that the that was legal conduct she would not have a plane just know we're not asking that that be recalculated and based more what we're saying is that when you have as part of your salary structure after title seven becomes effective as something that continues that despair treatment then you are engaging in illegal discrimination that's the problem i have with your argument co counsel inveighs more the conduct which violated another words in base more of the discrimination was a continuing discrimination because you were playing paying blacks less than whites for the same work here the company changed its policy longer calculates the disability the way it used to and there is no current discrimination that's that's how it's just what's wrong with  what i believe is wrong with that your honor is again than we are talking about the transaction at the point where we kind of benefits are calculated which is what nineteen seventy nine  they were changed or not eighteen t have the ability to change it and as a consequence their failure to do that again and incorporating the  discriminate on the basis of pregnancy and that is what they are doing but they're not discriminating on the basis of pregnancy at this point they haven't done that since one nine hundred seventy nine but with respect to the women who took leave prior i mean prior to the p t a and didn't get full credit they are discriminating against well they did at a time when it was not prohibited right and when they do it now they still continue to do it now because i chair let's suppose that the shirley hypothetical that before nine hundred seventy nine the policy was that anybody who stayed twenty five years with the company would get a cadillac you know really terrific car upon retirement and that the discrimination was a racial discrimination that occurred in the title seven comes and says you can't discriminate so long and as a result of that discrimination african americans didn't get at the end of their retirement day they were short by two years that had been cut off because they were being discriminated against is what you're saying that it would be putting into the current time frame the award of the car clearly a benefit that they were promised if they quit in their twenty five years that they would not be getting a car because of racial discrimination if i followed your hypothetical i think the answer is yes that if they were not given certain credit scores the car before title seven and that standard continues to be used after title seven comes into effect that is conduct which violates title seven just as invasive isn't possible here radically or the way this plan works but you could draw a line in one nine hundred seventy nine and give some kind of thank you pro rata credit going forward in other words what you've said is they're not getting anything they wouldn't be entitled to p t a and i hear that in the abstract but i'm wondering if in effect you are suggesting that they get credits beginning at the time they took their leave going forward until that retirement or is there an alternative sort of if you will a compromise situation where you could he have some kind of a pro rata credit going forward after nine hundred seventy nine even though you wouldn't be getting info credit for what they might have accrued three nine hundred seventy nine i don't know of any thing that would make it a legal obligation for that to i think that probably eighty and he would have had the discretion to have done not just as they had the discretion to completely give discretion which would have landed them somewhere other than in this court but my question is whether as a legal matter if you're saying that they really are only getting benefits that they're entitled to as you interpret the statute going forward is there a mechanical calculation that can be made that would draw a line in the sand that would in effect give them step down benefits going forward in program to their leave you know there was not giving them the same document and in effect saying but i'm not really paying them for what occurred pre one nine hundred seventy nine that i don't believe so ok i'm going faster yes because you don't think you are keeping them from comparable to the disabled people so you're not writing that problem it's not our current different treatment of pregnancy rather you're trying to write the fact that they were forced to take time off that they were otherwise had to take so that seems to me to be a different category from your main category i would still say though that not being given credit for the forced leave affects the amount of benefits they get that point why shouldn't we focus on the determination that is made by the company on a regular on a continuing basis for example once the act passed from then on obviously the company was required to comply but had made a determination that there was no further obligation retroactively why should that be the triggering date for the statute of limitations analysis because that is not the transaction that is the issue with retirement well sure it is the continuing basis you're accruing credits and then on the very last day of your work whatever you you have stored up you get paid right but what you do not know and eighteenth he does not know until they actually do agree and do a calculation and you actually have terminated your employment  retired that is the point at which the unlawful employment practice in our view i hear your argument thank you thank you how long someone's been with the company you are discriminating against women affected by pregnancy it if i can let me try to make an analogy to it we know from  last we know one example of facially discriminatory system and that is one where men are getting are earning seniority at twice the rate that women are ok so let's say that we had a company like that that before nine hundred sixty five was the company changes its plan so in the future we're going to count every everyone gets one for one seniority and they continue and they rely on those seniority dates based on the facially discriminatory system that you know was lawful no i don't think they can think of what the seven zero three h mean seven l three h says it's it's lawful for you to treat men differently from women if it's based on a bonafide seniority system absolutely i think i think a lot of the a lot of cases do say seniority can be used both for competitive purposes and for benefits purposes but if it's not a seniority system then it's even more clearly the case that once the law is pas you have to treat it use the newport news formula when and when a woman retires you have to treat her the same as you would treat her as if as if you were a man in terms of counting how long she's been with the company and therefore how many what she gets in terms of benefits are it it is it's not it's not a retroactive application of the act to say that once the law once the law has changed you now have to count how long they've been with the company in compliance with the new law they are they are worse off in their seniority than people who people took other kinds of disability leave like this this is mean then then on day one after the act was passed that a t t or any other employer had to service credit for purposes of haitian or anything else that used it for short of retirement which hadn't yet occurred yes ok yes and then and certainly after after palace they had to do that i mean when you talk about you know reasonable expectations in terms of complying with the law but yes i think when the law is passed and you're and you're making a decision about a benefit or or a competitive job opportunity based on how long some company you have to treat men and women equally your time has  if you're right there's one fundamental point i would like to leave you with and that is this notion that the m c s today reincorporate criteria based on pregnancy and replies is discriminatory policies of the women who to produce you that is simply not differently unless the p t a applies retroactively what you're saying then is the car hypothetical where you don't get the bonus even though two employees white black and of the same time with a black employee was shortchanged by two years pretty title seven you're saying t about affect the pregnancy i mean maybe right there in the statute i think this well this court would then be creating a split with every other circuit and would have to overrule its own decision in the one time case although i admit that wasn't a very thought through analysis but th let's have a situation which before title seven there's only a men's washroom is only men are employed after title seven women are employed now in equal numbers and all of a sudden we've got to redo the building let's retroactive effect and look at one way or another going to build another way no one in the world would call that retroactive application where you are not sure what the correct record you're not being asked to go back and since there were no women in the workforce beforehand there's no claim for going back and paying them anything different that's what we've got here you've got people saying i were we were denied service credit which is a form of compensation for leaves we took before there was any obligation on e t s part to award full service credit and now they're saying you must go back and restore that service credit to me that