contends that the Magistrate Judge erroneously based his decision on the fact that the collective bargaining agreements were facially discriminatory.
Thereafter, on October 11, 1991, ETA filed its second citation of supplemental authority changing the legal theory underlying its statute of limitations argument. In this subsequent pleading ETA cited EEOC v. City Colleges of Chicago, No. 90-3162, slip op. (7th Cir. Sept. 16, 1991), for the proposition that a facially neutral labor contract must be challenged no later than 300 days following the date of its execution. For the first time in this litigation, ETA advanced an argument premised on the Supreme Court's decision in Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 104 L. Ed. 2d 961 , 109 S. Ct. 2261 (1989).
In City Colleges, the Seventh Circuit specifically addressed the issue of when the statute of limitations begins to run in an ADEA suit challenging an early retirement plan. In 1982, defendant and its union entered into a new collective bargaining agreement. The early retirement plan included in this agreement provided lesser benefits for older workers. Thereafter, in 1988, EEOC filed suit challenging the validity of the plan under the ADEA. Defendant moved for summary judgment arguing, among other things, that the ADEA suit was time-barred under Lorance. In response, EEOC argued that the statute of limitations did not begin to run when the plan was adopted, but rather began to run each time the defendant applied the plan. The district court agreed with the defendant and granted its motion for summary judgment.
On appeal, the Seventh Circuit held that because the retirement plan was facially neutral the statute of limitations commenced on the date the plan was adopted, not with each application of the plan. City Colleges, No. 90-3162, slip op. at 2-3. In reaching this determination, the Seventh Circuit relied on the Supreme Court's holding in Lorance that ". . .when a seniority system is nondiscriminatory in form and application, it is the allegedly discriminatory adoption which triggers the limitations period. . . ." 490 U.S. at 911 (emphasis in original).
In Lorance, however, petitioners did not allege that the seniority system treated similarly situated employees differently, or operated in an intentionally discriminatory manner. 490 U.S. at 905. Stated differently, petitioners solely argued that respondent intentionally discriminated on the basis of sex in its adoption of the new collective bargaining agreement. 490 U.S. at 903. Clearly, the factual and legal scenario present in Lorance is distinguishable from the instant case.
Here, EEOC argues that the leave provisions in the collective bargaining agreements are discriminatory on their face and in their operation. Even though the Court has rejected EEOC's contention that the collective bargaining agreements are facially discriminatory, we agree that EEOC's challenge to the alleged disparate effect ETA's leave provisions have on pregnant teachers versus non-pregnant teachers remains a viable theory. In our view, EEOC's argument that the leave provisions of the collective bargaining agreements are discriminatorily applied to pregnant teachers takes this case outside of the holding in Lorance.
Equally important, the continued viability of Lorance is questionable in light of the recent amendments to the Civil Rights Act of 1964. Section 706(e), 42 U.S.C. § 2000e-5(e), which establishes the time for filing charges, was recently amended by the Civil Rights Act of 1991, Pub. L. No. 102-166 (Nov. 21, 1991). The following new paragraph was added to this section:
For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this title (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.