220 F.3d 814 (7th Cir. 2000)
Ameritech Benefit Plan Committee, et al., Plaintiffs-Appellees,v.Communication Workers of America,  Annette Foster-Hall, et al., Defendants-Appellants.andBernadette Bernabei, Plaintiff-Appellant,v.Ameritech Corporation, et al., Defendants-Appellees.
Nos. 98-3096, 98-3101, 98-3102
In the  United States Court of Appeals  For the Seventh Circuit
Argued February 9, 1999
Decided July 13, 2000

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.[Copyrighted Material Omitted]
Before Cudahy, Ripple, and Diane P. Wood, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
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.


2
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.


3
* 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.


4
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


5
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.


6
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.


7
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.


8
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.


9
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

10
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.


11
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

12
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.


13
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.


14
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

15
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.


16
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.


17
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, 216 F.3d 577 (7th  Cir.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.


18
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.


19
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

20
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

21
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 non-  moving parties to a reversal if the record  reveals a genuine issue of material fact. See id.

A.  Title VII

22
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).


23
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.


24
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.


25
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 non-  discriminatory 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.


26
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.


27
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. 2000e-  2(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).


28
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 decision-  making 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.


29
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

30
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.


31
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 pre-  1979 pregnancy leaves.

C.  ERISA

32
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).


33
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.


34
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.


35
Furthermore, there may be a problem with shoe-  horning 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.


36
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


37
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.


38
For the reasons stated, we AFFIRM the judgment of  the district court.



Note:


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).


