In the

United States Court of Appeals

For the Seventh Circuit

Nos. 98-3096, 98-3101, 98-3102

Ameritech Benefit Plan Committee, et al.,

Plaintiffs-Appellees,

v.

Communication Workers of America,

Annette Foster-Hall, et al.,

Defendants-Appellants.

and

Bernadette Bernabei,

Plaintiff-Appellant,

v.

Ameritech Corporation, et al.,

Defendants-Appellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 97-C-1441, 97-C-2209--Suzanne B. Conlon, Judge.

Argued February 9, 1999--Decided July 13, 2000

 Before Cudahy, Ripple, and Diane P. Wood, Circuit

Judges.

 Diane P. Wood, Circuit Judge. This case is about

the present consequences of the way in which

Ameritech Corporation (and its predecessors)

computed time for purposes of its pension plan,

early retirement, and similar benefits, when the

reason for an approved absence from work was

pregnancy rather than any other short-term

disability. (For the sake of convenience, we

refer throughout to the company as Ameritech,

even though Ameritech did not come into being

until 1984. The difference in corporate identity

makes no difference to the outcome of this case.)

After the passage of the Pregnancy Discrimination

Act (the PDA) in 1979, Pub. L. No. 95-555,

codified at 42 U.S.C. sec. 2000e(k), the

Ameritech Benefit Plan Committee (benefit
committee) did not go back to recompute leave

periods for women employees whose absences were

because of pregnancy. 

 This decision took on immediate importance for

the affected employees in 1994, when Ameritech

added benefits to its pension plan. For these

people, indeed, it made the difference between

eligibility to take early retirement and to enjoy

other pension benefits, and lack of eligibility.

In an unusual move, Ameritech jumped into court

with an action for a declaratory judgment, and it

attempted to sue a defendant class of employees.

The district court granted summary judgment for

Ameritech, dismissing the class claims under

Title VII, ERISA, the Equal Pay Act, and various

state laws. We affirm.

I

 For the entire time period relevant to this

suit, Ameritech has used a record-keeping system

it calls Net Credited Service (NCS) for purposes

of determining an employee’s entitlement to

pension and other employment benefits. The NCS

system produces a number, created by Ameritech

and assigned to each employee, which reflects an

adjusted amount of "continuous" employment with

which the employee is credited. Each employee’s

NCS number is based on several factors, including

credit that Ameritech gives the employee for time

spent working at Ameritech, and credit that it

gives the employee for various leaves of absence.

In other words, employees receive service credit

for actual time worked and for certain leaves,

but they do not receive service credit for other

leaves. The latter time periods are "squeezed

out" or subtracted from the gross time between

hire date and the present, before benefit

eligibility is determined. Ameritech notes,

without contradiction from the employees, that

the NCS system is incorporated in both its

collective bargaining agreements and in its

pension plans.

 The addition of the PDA to Title VII, effective

April 29, 1979, forced Ameritech to change its

method of calculating NCS. For most of the time

prior to the advent of the PDA, Ameritech had

counted only a maximum of 30 days of an

employee’s pregnancy or maternity leave towards

her NCS (because it was treating pregnancy as a

"personal leave" capped by a 30-day limit,

instead of as a disability leave). Pregnancy

leaves in those days typically lasted much more

than 30 days, at Ameritech’s insistence:

Ameritech required pregnant women to begin their

pregnancy leaves several months before their due

dates. In contrast, employees with other

disabilities were granted full NCS credit for
their disability-related leaves. The PDA, which

established that discrimination based on

pregnancy is sex discrimination and that

pregnancy must be treated the same as any other

short-term disability, made it clear to Ameritech

that its NCS system had to change. Ameritech

accordingly began giving employees full NCS

credit for their pregnancy and maternity leaves.

It did not, however, adjust the NCS periods of

employees who had taken pregnancy or maternity

leaves before the effective date of the PDA,

April 29, 1979, nor did it discontinue its use of

NCS to calculate various employee benefits.

 Here matters stood for many years. The stakes

for the women who had received only partial

credit for their pre-PDA pregnancy leaves became

higher in 1994, however, which led to the present

litigation. On March 7 of that year, Ameritech

amended its pension plan to provide early

retirement benefits to some employees. Under the

amendments, eligible non-management employees who

retired between February 22, 1994, and September

30, 1995 were entitled to have three years added

to their terms of employment and three years

added to their actual ages for purposes of

determining retirement eligibility and

calculating the amount of their pension benefits.

The same employees were made eligible for

additional tuition assistance, as well as cash

payments under a Supplemental Income Protection

Program. Ameritech’s plan administrators used the

NCS in calculating each employee’s term of

employment in order to distribute the benefits.

Because employees who had taken pregnancy or

maternity leaves prior to April 29, 1979 had

lower NCS numbers than they would have had under

a system that did not discriminate against

pregnancy, some of them did not receive the added

1994 benefits even though they would have been

eligible if they had been disabled in any other

way.

 Cheryl Cuprys and Bernadette Bernabei were two

Ameritech employees who had taken pre-April 29,

1979 pregnancy and maternity leaves and were

therefore not eligible for the 1994 benefits.

Cuprys and Bernabei both challenged their denial

of benefits, but Ameritech’s benefit committee

denied their claims and appeals. Cuprys and

Bernabei then turned to the EEOC and filed

charges with it. The EEOC issued a right to sue

letter to Cuprys on February 24, 1995, and to

Bernabei on September 28, 1995.

 On December 20, 1995, Bernabei filed suit in

the United States District Court for the Northern

District of Ohio alleging that Ameritech’s

actions violated Title VII, the Equal Pay Act,

ERISA, and state law (Bernabei v. Ameritech

Corp., et al., No. 97-CV-02209). On March 3,
1997, Ameritech filed suit against a claimed

defendant class of affected women and against two

unions, the Communications Workers of America,

AFL-CIO (the CWA) and certain local unions

affiliated with the International Brotherhood of

Electrical Workers (IBEW), in the Northern

District of Illinois. Ameritech’s complaint asked

for a declaratory judgment that it had not

violated any of the same laws invoked in the

Bernabei action. Bernabei’s suit was transferred

to Illinois, and in May of 1997 it was

consolidated with Ameritech’s declaratory

judgment action. 

 The putative defendant class and the CWA filed

their answers, along with counterclaims under

Title VII, the Equal Pay Act, ERISA, and the

state laws. (Indeed, these claims mirrored

Ameritech’s request for declaratory relief, which

saves this case from undue complication as we

explain below.) In an order dated August 28,

1997, the district court approved the parties’

joint request for class certification as to the

Title VII, ERISA, and state law claims,

apparently under Fed. R. Civ. P. 23(b)(1) and

23(b)(2). (The order contains no discussion or

explanation of this decision, but these are the

rules cited in the earlier motion for

certification.) Later, the district court granted

Ameritech’s summary judgment motion as to all

parties, and denied the cross-motions of the CWA,

the class, and Bernabei. This appeal followed. 

II

 A. Subject Matter Jurisdiction

 The EEOC, through a brief amicus curiae it has

filed with this court, argues that the district

court lacked subject matter jurisdiction over

Ameritech’s Title VII and Equal Pay Act claims,

because neither statute provides for suits by the

employer against whom discrimination is alleged.

Given the fundamental nature of this argument, we

address it first. In our view, the district court

had subject matter jurisdiction under 28 U.S.C.

sec. 1331. It is of course true that the

Declaratory Judgment Act, 28 U.S.C. sec. 2201, is

not an independent source of subject matter

jurisdiction. See GNB Battery Technologies, Inc.

v. Gould, Inc., 65 F.3d 615, 619 (7th Cir. 1995);

Skelly Oil Co. v. Phillips Petroleum Co., 339

U.S. 667, 671 (1950). It allows suits for

declaratory judgment where federal jurisdiction

would exist in a coercive suit brought by the

declaratory judgment defendant. See GNB Battery

Technologies, Inc., 65 F.3d at 619; Franchise Tax

Board, 463 U.S. 1, 19 (1983). Had the aggrieved

employees (here, class defendants) brought a suit

to enforce Title VII and the Equal Pay Act

against Ameritech, the district court would have
had jurisdiction over the complaint because

interpretation and application of these statutes

present federal questions. See Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83,

89 (1998). Indeed, this is exactly what the

employees did when they filed their

counterclaims. One way or the other, the claims

on all sides present federal questions, and so

our jurisdiction is secure. 

 The Commission is really arguing that the

statutes confer no right on Ameritech to sue as

a plaintiff, because they confer no such rights

on employers (i.e. no claim can be stated) or

because it is the wrong party (i.e. it lacks

statutory standing). While these could be

important points, they do not implicate the

jurisdiction of the district court. Our basis for

jurisdiction comes from the underlying

controversy, not the particular party initiating

suit. We note, however, that the question whether

an employer should have the right to short

circuit the EEOC’s internal processes by running

to court and filing a declaratory judgment action

in a Title VII suit is an important one, which

will have to be addressed in a case that raises

it properly. The counterclaims and Bernabei’s

direct action mean that this is not such a case,

however, so we leave further discussion of this

point to another day.

 B. Ripeness of Ameritech Action

 The EEOC argues in the alternative that

Ameritech’s suit was unripe because the parties

failed to exhaust their administrative remedies.

At the time Ameritech filed its action,

individual charges were still pending before the

EEOC’s Cleveland office, that office had not

completed its consideration of the charges, yet

Ameritech named some of those people as

defendants. Shortly after Ameritech filed this

action, the Commission filed its own suit in the

Northern District of Ohio, naming Ameritech, the

IBEW, and the CWA as the defendants and asserting

claims similar to those that are here. Although

Bernabei’s suit was transferred to the Northern

District of Illinois from the same Ohio district

court, that court denied Ameritech’s motion to

transfer the EEOC case here, and so the

Commission’s action is still pending there,

awaiting the outcome of this appeal. 

 Had Ameritech not filed its declaratory judgment

action, the Commission could have controlled both

the timing and the forum of this litigation to a

far greater degree. (We note, however, that the

Commission is not immune from a transfer of venue

under 28 U.S.C. sec. 1404(a), and so this right

is not unqualified.) The Commission argues that
the employer should not have the right to thwart

its enforcement decisions in the way that

Ameritech has done here. In a sense, its argument

is that any employer action that is possible

(assuming arguendo that such actions exist) must

be subject to the same exhaustion requirements

that employees face. This too is a reasonable

argument, but not one that can carry the day on

the facts before us. To begin with, exhaustion is

not a jurisdictional requirement for Title VII

claims. See Gibson v. West, 201 F.3d 990, 994

(7th Cir. 2000). It is merely a precondition to

bringing a Title VII claim in federal court, and

is therefore subject to the doctrines of waiver,

estoppel, and equitable tolling. See id.

 We would have a much more difficult case on our

hands if Bernabei and Cuprys had never filed

charges with the EEOC, or if the EEOC had not

responded to the charges by issuing right-to-sue

letters. We do not need to address that

hypothetical situation here, however, nor is it

necessary for us to address the question whether

an employer must file a formal charge with the

Commission as a prerequisite to bringing the kind

of declaratory judgment action Ameritech filed.

In our case, individual charges were filed and

the EEOC issued right-to-sue letters. Thus,

whatever interests in completion of the

Commission’s internal procedures may exist were

satisfied. We are left with the more conventional

problem of competing lawsuits on the same issues

in two different federal districts. This does not

seem to have bothered the parties much, and it is

surely not the kind of fundamental defect that

divests the district court of power to rule on

the case. 

 C. Class Certification

 Despite the fact that neither party has

addressed the way that class certification was

accomplished in this case, we cannot proceed

without considering this problem as well. This is

so precisely because classes include not only the

parties directly before the court, but absentees,

and in some cases the active participants may

sell out the interests of the others. See, e.g.,

Crawford v. Equifax Payment Services, Inc., 201

F.3d 877, 882 (7th Cir. 2000); see Pettway v.

American Cast Iron Pipe Co., 576 F.2d 1157, 1169

(5th Cir. 1978); Plummer v. Chemical Bank, 668

F.2d 654, 658 (2d Cir. 1982). We look at the

alleged defendant class that the district court

certified for Ameritech’s declaratory judgment

under Title VII.

 To begin with, there is a potential problem

with virtually all defendant classes that proceed
under anything but Rule 23(b)(3). Defendant

classes, initiated by those opposed to the

interests of the class, are more likely than

plaintiff classes to include members whose

interests diverge from those of the named

representatives, which means they are more in

need of the due process protections afforded by

(b)(3)’s safeguards. It also means that they are

less likely to satisfy the requirements of Rule

23(a). Risks of diverging interests are

particularly high in actions seeking monetary

remedies. In Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985), the Supreme Court discussed

the analogous problem of the rights of absentee

members of a plaintiff class that sought monetary

relief. The Court concluded that nothing less

than the type of notice and opt-out opportunity

provided by Rule 23(c) (or, in Shutts, the Kansas

equivalent to the federal rule) would satisfy due

process. Moreover, throughout its discussion, it

frequently drew comparisons between the position

of absentee plaintiff class members and

defendants, and virtually every one of those

comparisons implied that defendants have, if

anything, greater rights. We are not aware of a

single case that has ever justified a monetary

award (or, as here, a judgment declaring that a

party is entitled to no money) without at a

minimum requiring notice be afforded to that

party. 

 Our decision in Henson v. East Lincoln

Township, 814 F.2d 410 (7th Cir. 1987), cert.

granted, 484 U.S. 923 (1987), cert. dismissed,

506 U.S. 1042 (1993), holds that a defendant

class is normally impermissible under Rule

23(b)(2), although it leaves open the possibility

of a debtor’s bringing a class action against a

class of creditors seeking a declaration of

nonliability. This is what Ameritech says it has

done, but later developments in this circuit’s

class action jurisprudence make it clear that the

district court should not have brushed over the

requirements of Rule 23 so quickly. We refer to

the decision in Jefferson v. Ingersoll Intern.

Inc., 195 F.3d 894 (7th Cir. 1999), in which we

made clear that mixed class actions that seek

both equitable and compensatory relief must

satisfy the formalities of Rule 23(b)(3). See

also Lemon v. Intern. Union of Operating Engrs,

Local No. 139, 2000 WL 733577, No. 99-4101 (7th

Cir., June 9, 2000). As for this, some blame lies

at the feet of the class representatives.

Paragraph 1 of the counterclaim begins by saying

"[t]his counterclaim seeks money damages,

declaratory and injunctive relief against

Plaintiffs for violations of Title VII, . . .

ERISA, . . . the Equal Pay Act, . . . [and

certain state laws]." What could be clearer? And

yet the record is devoid of any indication that
the absentees had any idea that the case was

going on.

 The parties did not ask for class certification

for purposes of the Equal Pay Act claims, because

they recognized that the problems with certifying

such a class under the Equal Pay Act are

especially great. There is no such thing as a

Rule 23 class action in an Equal Pay Act case.

The Act, by incorporating the requirements of the

Fair Labor Standards Act, compels the use of a

more restrictive "opt-in" procedure. 29 U.S.C.

sec. 216(b). Nothing of the sort occurred here,

once again because neither the district court nor

the parties paid appropriate attention to the

certification question.

 The problem with ignoring these issues is that

the rights of persons not before the court are

necessarily implicated once a class is certified.

We have concluded that the proper way to proceed

is to decide the claims of the parties who are

clearly before the court: the named plaintiffs

and anyone who intervened formally./1 In fact,

our resolution of these claims will have a

powerful stare decisis effect on the claims

absentees might have wanted to assert, but that

cannot be helped. By the same token, our ruling

in this action will not formally preclude the

EEOC in its Ohio action, since the Commission is

also not a party before this court. The Ohio

court, and the Sixth Circuit in turn should an

appeal be taken, will have the right to come to

their own conclusions on these issues.

 D. The Unions

 As the litigation progressed, only the CWA

played an active role in filing papers with the

court. Our comments, however, apply in principle

to both unions. Apart from their potential role

as an organizational representation of their

members, the unions had little to say here.

Indeed, because the way in which time of service

was computed implicates the collective bargaining

agreements the unions had with Ameritech, they

might have some incentive to defend their earlier

actions. For the same reason we have disregarded

the role of the absentee class members, we do not

reach the legal issues that might be raised in

conjunction with the unions’ role. Neither party

briefed these questions, and it suffices to say

here that the unions’ participation does not

change our view of the merits of the action.

III

 We turn, finally, to the merits. Because this

appeal comes to us from a grant of summary
judgment, we review the decision of the district

court de novo. See Vakharia v. Swedish Covenant

Hosp., 190 F.3d 799, 805 (7th Cir. 1999). We

construe the record in the light most favorable

to the employees, who are entitled as the nonmoving parties to a reversal if the record

reveals a genuine issue of material fact. See id.

 A. Title VII

 As we have already noted, Title VII prohibits

an employer from discriminating against an

employee or applicant based on sex, 42 U.S.C.

sec. 2000e-2(a), and the PDA provides that for

purposes of Title VII discrimination based on sex

includes discrimination based on pregnancy. 42

U.S.C. sec. 2000e(k). In light of those

indisputable facts, Ameritech freely admits that

it could not today calculate its NCS numbers to

favor persons who had not taken pregnancy or

maternity leave, or in a way that imposed some

form of discount on that one type of short-term

disability, and then apply those numbers to

determine employee benefits. Its point is a

different one: it urges that it is too late for

the employees to complain about a method of

calculation of NCS that applied only to pre-PDA

leaves and that has not been in existence at

Ameritech since 1979. A Title VII charge must be

filed within 180 days after the "alleged unlawful

employment practice occurred," unless the

plaintiff initially filed charges with an

appropriate State or local agency, in which case

the charge must be filed within 300 days after

the "alleged unlawful employment practice," or

within 30 days after receiving notice that the

State or local agency has terminated the

proceedings--whichever is earlier. 42 U.S.C. sec.

2000e-5(e)(1).

 The outcome of this case turns on which of two

competing lines of authority provide a better

"fit" here. The one on which the employees rely

is represented by Bazemore v. Friday, 478 U.S.

385 (1986). In Bazemore, the Court found that an

employer’s calculation of a discriminatory base

salary structure prior to the effective date of

Title VII did not leave the employer free to use

that tainted base salary structure in determining

salaries after Title VII’s effective date. Id. at

395-96. See also Wagner v. Nutrasweet Company, 95

F.3d 527, 534 (7th Cir. 1996). Just so here, they

say: Ameritech may not use a system for

calculating time of service that was tainted by

pregnancy discrimination when it makes present

decisions about eligibility for benefits.

 Intoning the words "bona fide seniority system"

does not help Ameritech, in the employees’ view,
because the Civil Rights Act of 1991 amended 42

U.S.C. sec. 2000e-5(e) to provide that "an

unlawful employment practice occurs, with respect

to a seniority system that has been adopted for

a discriminatory purpose in violation of this

title, . . . when a person aggrieved is injured

by the application of the seniority system or

provision of the system." The employees conclude

that Ameritech’s continued use of pre-1979 NCS

computations is a fresh violation of the statute,

which occurred in 1994. It was then that

Ameritech afforded early retirement and various

cash benefits to employees who had high enough

NCS numbers to retire between February 22, 1994

and September 30, 1995. The company could have

decided to give its new benefits to all of its

employees based on how long they had worked for

Ameritech, and it could have calculated that

length of time such that all employees who had

been disabled prior to April of 1979 were treated

alike. Instead, in applying the 1994 benefits, it

decided to hinge them on "NCS," thereby favoring

those employees who had not been pregnant prior

to April of 1979. 

 Ameritech (naturally) relies on the other line

of cases, represented by United Airlines v.

Evans, 431 U.S. 553 (1977), and Delaware State

College v. Ricks, 449 U.S. 250 (1980). In Evans,

the employer’s discriminatory action occurred

when it forced a female flight attendant to quit

because she got married. 431 U.S. at 554-55.

Later, the employer rehired the flight attendant.

The Evans Court held that the employer’s refusal

after the rehiring to "correct" the effects of

the past firing by affording her additional

seniority did not violate Title VII, because such

a refusal was not a discriminatory action in

itself. Id. at 557-58. Both male and female

employees who had been fired (whether for a nondiscriminatory reason or for an unchallenged

discriminatory reason) and then re-hired were

treated the same for purposes of seniority

credit. The continuing impact of the earlier

action, within the context of an otherwise

neutral system, was not enough to show a present

violation. Ricks is similar. There, the College’s

discriminatory act occurred when it denied

plaintiff Ricks academic tenure, allegedly on the

basis of his national origin. 449 U.S. at 252.

The college fired Ricks a year later, as it fired

other academic employees at the expiration of

their terminal 1-year contracts. The Court

concluded that there was no continuing violation,

and that Ricks’ claim accrued at the time of the

tenure denial. Id. at 257-58.

 For a number of reasons, we think that

Ameritech has the better of this dispute, though

we acknowledge that the line between continuing
violations that arise with each new use of the

discriminatory act (e.g., the Bazemore paychecks)

and past violations with present effects (e.g.,

the Evans seniority) is subtle at best. But it is

a line the Supreme Court has drawn, and it is our

obligation to apply it if at all possible. First

is the fact, simplistic as it may seem, that our

case involves computation of time in service--

seniority by another name--followed by a neutral

application of a benefit package to all employees

with the same amount of time. That suggests that

we should look first to Evans, and follow the

other line only if there is no alternative. It is

true that Bazemore was decided nine years after

Evans, but the Bazemore Court said nothing about

overruling Evans, and so we assume that it did

not do so.

 The statute itself offers good reason to treat

seniority systems with special care, because it

specifically exempts discriminatory effects that

flow from bona fide seniority systems from the

definition of unlawful employment practices, as

long as the differences are not the result of an

intention to discriminate. 42 U.S.C. sec. 2000e2(h). If the employees are able to show

intentional discrimination, their action accrues

at the time they are injured by the seniority

system--that is, when they are denied benefits.

42 U.S.C. sec. 2000e-5(e). 

 In our opinion, these employees cannot show the

kind of intentional discrimination that would

trigger the exception to the statutory protection

afforded to seniority systems. As Ameritech

points out, prior to the adoption of the PDA an

authoritative Supreme Court decision had held

that Title VII did not prohibit distinctions

based on pregnancy. General Electric Co. v.

Gilbert, 429 U.S. 125 (1976). Moreover, the PDA

has not been treated as a retroactive statute,

see Condit v. United Air Lines Inc., 631 F.2d

1136, 1139-40 (4th Cir. 1980); Schwabenbauer v.

Board of Ed. of City Sch. Dist. of City of Olean,

667 F.2d 305, 310 n. 7 (2d Cir. 1981); Whitehead

v. Oklahoma Gas & Elec. Co., 187 F.3d 1184, 1193

(10th Cir. 1999), and so Ameritech would have had

no reason to think it had to reshuffle its NCS

list after the Act was passed. Third, the Supreme

Court has held that the fact that a seniority

system perpetuates pre-Act discrimination does

not preclude it from being bona fide. See

International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 352-53 (1977). The

employees here protest that they are not talking

about a seniority system, but they are wrong.

Under the Supreme Court’s test in California

Brewers Ass’n v. Bryant, 444 U.S. 598, 606

(1980), the key to deciding whether a decisionmaking process qualifies as a seniority system is

its reliance on relative lengths of employment.
That is what Ameritech’s NCS system does, and we

think it fits easily into the seniority system

line of cases.

 Last, this is not a case like some continuing

violations where the employees had no way of

knowing that something bad had happened to them

until much later. Hostile environment sexual

harassment cases, for example, can only be

brought once it becomes clear that the harassment

is severe or pervasive enough to constitute an

adverse effect on terms and conditions of

employment. Here, the women knew the minute they

took their pregnancy or maternity leaves that

they were not getting full credit for their time

off. No later than the time when Ameritech

amended its plan in response to the PDA, they

knew that their NCS had not been amended. It is

no secret to any employee that seniority rolls

like Ameritech’s NCS make a difference for a host

of employee benefits, some present, and some

future. Ameritech informed each employee

periodically of his or her accrued NCS. The time

for bringing a complaint was therefore long ago,

and the district court correctly recognized that

these employees had sued too late.

 B. The Equal Pay Act

 The employees next challenge Ameritech’s

procedures under the Equal Pay Act. (As before,

we are addressing only the claims of the named

plaintiffs and anyone who properly intervened

before the district court.) We assume for the

sake of argument that the employees have

satisfied their initial burden under the statute

to show that Ameritech pays women less than men

for "equal work on jobs the performance of which

requires equal skill, effort, and responsibility,

and which are performed under similar working

conditions." 29 U.S.C. sec. 206(d)(1); see

Corning Glass Works v. Brennan, 417 U.S. 188, 195

(1974). On the record here, the only difference

between the complaining employees and their

colleagues who were able to receive the 1994

benefits is that they were pregnant women before

April of 1979.

 But once again, the fact that the disadvantage

from which they suffer is the result of a bona

fide seniority system dooms their claim. The

Equal Pay Act provides that there is no violation

if the unequal pay was due to "any other factor

other than sex," including "(i) a seniority

system; (ii) a merit system; [or] (iii) a system

which measures earnings by quantity or quality of

production." 29 U.S.C. sec. 206(d)(1). This is an

affirmative defense for the employer, see Corning

Glass Works, 417 U.S. at 196, but for the same
reasons we have just reviewed for purposes of

Title VII, we find that Ameritech has met its

burden. In addition, we agree with Ameritech that

the Equal Pay Act claim is untimely. Claims

arising under that statute must be filed within

two years of their accrual, 29 U.S.C. sec.

255(a), and these claims were not presented until

many years after the initial decision not to

adjust the employees’ time in service for pre1979 pregnancy leaves.

 C. ERISA

 The employees’ final federal claims involve

ERISA. First, they believe that Ameritech

violated its duty under ERISA to act in the best

interest of all the plan beneficiaries and

participants when it discriminated against

certain female beneficiaries of the plan. ERISA

fiduciaries are required to act with care and

skill "solely in the interest of the participants

and beneficiaries." 29 U.S.C. sec. 1104(a).

Ameritech is a fiduciary under ERISA, because it

has discretion and control in implementing the

plan. See 29 U.S.C. sec. 1002(21)(A);

Administrative Committee v. Gauf, 188 F.3d 767,

770 (7th Cir. 1999). Second, the employees argue

that Ameritech violated section 510 of ERISA,

which prohibits employers from frustrating their

employees’ attainment or enjoyment of benefit

rights. 29 U.S.C. sec. 1140; see Feldman v.

American Memorial Life Ins. Co., 196 F.3d 783,

792 (7th Cir. 1999). Individuals may bring claims

to recover benefits, to enforce rights, and to

clarify rights under 29 U.S.C. sec.

1132(a)(1)(B).

 Even if we agreed that the employees’ ERISA

claims were timely, perhaps because they arise

more directly out of the 1994 plan amendment than

the Title VII or Equal Pay Act claims, the ERISA

claims face an additional hurdle. In order for

the employees to show that Ameritech breached

either a fiduciary duty or section 510, the

employees must be able to show that they were, at

some time, eligible for the plan’s benefits.

Fiduciaries are required to act "in accordance

with the documents and instruments governing the

plan." 29 U.S.C. sec. 1104. Any breach of the

fiduciary duty must derive from Ameritech’s

implementation of the plan. For its part, section

510 only applies if the employees can show (among

other things) that they were qualified under the

plan for the denied benefits. See Feldman, 196

F.3d at 792. If the plan itself provides for

discriminatory practices, such that they do not

qualify for benefits under its terms, they cannot

prevail on an ERISA claim. 
 The employees stress that the plan refers to

"TOE," or "time of employment," and not NCS. They

maintain that TOE does not necessarily need to be

calculated using NCS, and that they would be

eligible for the benefits of the plan if their

time of employment was calculated in the same way

as it would be for other previously disabled

employees. Nevertheless, Ameritech’s decision to

use NCS to calculate time of employment cannot

evidence an intent to discriminate if the NCS

system itself has passed muster under the

antidiscrimination laws.

 Furthermore, there may be a problem with shoehorning a discrimination claim into the ERISA

notion of fiduciary duty, because ERISA "does not

itself proscribe discrimination in the provision

of employee benefits." Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 91 (1983). Shaw found that a

state law prohibiting discrimination was

preempted by ERISA, because it "related to" the

area of benefits, which is covered by ERISA. Id.

at 99. Ameritech argues that the Shaw Court also

insinuated that ERISA would not be a source of

protection against such discrimination. The Court

said that discriminatory practices would have to

be evaluated under Title VII, rather than a broad

state law, and did not specifically include the

option of resorting to ERISA. Id. at 105-06. But

the Shaw Court was not presented with and did not

answer the question of whether discrimination

against certain plan participants could ever

reach the point of breaching fiduciary duties. We

have no need to decide whether such a claim might

be stated in some future case; we conclude only

that this is not such a case. 

 ERISA’s fiduciary duty was meant to hold plan

administrators to a duty of loyalty akin to that

of a common-law trustee. See John Langbein, "The

Supreme Court Flunks Trusts," 1990 Sup. Ct. Rev.

207, 210-11. A common-law trustee was not allowed

to favor one class of beneficiaries over another.

Restatement of Trusts sec. 183. A plan

administrator’s duty to act in the best interest

of all the beneficiaries cannot mean that it must

cater to the optimal needs of each individual

beneficiary. All of the beneficiaries’ interests

will not always be aligned. The fiduciary must

act as though it were a reasonably prudent

businessperson with the interests of all the

beneficiaries at heart. The question is whether

such a businessperson, facing potential risks of

future litigation as well as possible employee

disenchantment with the plan, would have chosen

to adhere to the NCS system, with the consequent

effect of denying the 1994 benefits to the women

affected here. See 29 U.S.C. sec. 1104(a)(1)(B).

The answer must be yes, since adherence to the

system for all participants meant that the
company had a reliable seniority list upon which

everyone could rely for any appropriate purpose. 

IV

 The district court’s order granting summary

judgment also awarded judgment to Ameritech on

the state law claims, because they mirrored the

federal claims. The appellants have not contested

that part of the court’s decision on appeal, and

so we consider any possible arguments waived.

 For the reasons stated, we AFFIRM the judgment of

the district court.

/1 These plaintiffs include (aside from the unions)

Bernadette Bernabei, the original named

individual defendants in Ameritech’s declaratory

judgment suit (Annette Foster-Hall, Brenda

Gibson, Wilbur Haynes, Helen Kloess, H. Carleen

Leach, Sharon Parrish, Frances Timmerman, Phyllis

Barnes, Betty Bober, Janet Champer, Linda Croddy,

Patricia Elick, Lesle Gardner, Dolores

Harmacinski, Polly Neimeier, Debby Flynn

Adomaitis, Anne Marie Allen, Carol Amato, Vicki

Andrews, Evelyn Dallos, Leanne Grover, Ruth

Johnson, Virginia Jones, Francie Wingo, Sara Sue

Adkins, Debra Anderson, Janet Appleton, Sandra

Ballard, Kathryn Kreger, Margaret Perrill, Diane

Richard, Brenda Smitherman-Muir, Mary Jo Avery,

Diana Beattie, Christine Berger, and Shirley

Connell), and those individuals whom the district

court allowed to intervene (see Agreed Amended

Motion to Intervene Certain Class Members,

Exhibit A).