Carolyn AIELLO, Individually and on behalf of all others similarly situated, Plaintiff, v. Sigurd HANSEN, as Director of the State Department of Human Resources Development, Defendant. Augustina D. ARMENDARIZ et al., Petitioners, v. Sigurd HANSEN, as Director of the State Department of Human Resources Development, Respondent.
Nos. C-72-1402 SW, C-72-1547 SW
United States District Court, N. D. California.
May 31, 1973
359 F. Supp. 792
ZIRPOLI, District Judge.
” . . . . It is at this stage that the contract controls are imposed, for once a project is approved by the Secretary it ‘shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto.’
23 U.S.C. § 106(a) . On the basis of this approval, states are permitted to obligate the apportioned funds through the letting of construction contracts, etc. Section 118(b) provides that the sums ‘available for expenditures’ . . . .”
Conversely, it would seem that once a positive command appears in the statute such as in the case sub judice, mandamus should lie. The mandamus statute was passed in 1962 much later than the original Tucker Act or even than
Against the argument that this holding in effect negates the $10,000 limitation of
The court has for purposes of this motion assumed the truth of the facts pleaded in the complaint but does not by this ruling attempt to opine on the ultimate merit of the position of the parties nor negate the right of defendants to traverse the allegations thereof.
A separate order has been entered.
Jack Levine, Levy & Van Bourg, Los Angeles, Cal., for petitioners-intervenors.
Joel Gomberg, Peter H. Weiner, California Rural Legal Assistance, Gilroy, Cal., Wendy Webster Williams, Legal Aid Society of San Mateo County, Redwood City, Cal., for plaintiffs.
Cecilia D. Lannon, Legal Aid Society of Marin County, San Rafael, Cal., for petitioners Armendariz, Johnson and Jaramillo.
Roland C. Davis, Davis, Cowell & Bowe, San Francisco, Cal., for San Francisco Waitresses Union.
Joseph C. Morehead, Wong, Siedman & Lee, San Francisco, Cal., for plaintiff Carolyn Aiello.
Nancy E. Stanley, Equal Employment Opportunity Commission, Washington, D. C., amici curiae.
Before DUNIWAY, Circuit Judge, and WILLIAMS and ZIRPOLI, District Judges.
OPINION
ZIRPOLI, District Judge.
Plaintiffs, on behalf of themselves and other women similarly situated, challenge the provision of
I.
The California Unemployment Insurance Code establishes a comprehensive legislative scheme designed to provide protection against wage loss caused by involuntary unemployment. The disability insurance program, which is involved in this suit, provides benefits to persons unable to perform their customary work because of nearly any physical or mental condition; a complementary program provides compensation to unemployed persons able to and available for work. Thus, the state has attempted to reduce to a minimum the suffering caused by involuntary unemployment of every type.
The disability insurance program is wholly supported by employee contributions. At present, employees must contribute one percent of their salary up to a maximum of $85 per year.
In conformity with the aim of reducing the suffering of those unable to work regardless of the reason, the disability insurance program provides benefits on account of nearly any incapacity. Those confined in an institution as a dipsomaniac, drug addict, or sexual psychopath are disqualified from receiving benefits while they are confined.
II.
Plaintiff Aiello, a self-supporting woman, was forced to cease working as
Plaintiff Armendariz is the sole source of support for herself, her husband, and an infant son. She was forced to cease working as a secretary on May 8, 1972, when she became ill and began bleeding. Early the next day she called an ambulance; on the way to the hospital she went into labor and suffered a miscarriage. Pursuant to the orders of her doctor, Ms. Armendariz did not return to work until the end of May. She applied for disability insurance benefits, and her application was denied solely because her disability arose in connection with her pregnancy.
Plaintiff Johnson is the head of a household composed of herself and her five-year-old son. Their main source of support is the income she receives as an operator for the telephone company. Ms. Johnson entered the hospital on May 22, 1972, after experiencing intense abdominal pain, swelling in the legs, back pain, and general illness. Her condition was diagnosed as tubal pregnancy and, in order to save her life, an operation was performed to terminate the pregnancy. She was discharged from the hospital on May 30 and advised not to return to work until July 10. Her disability insurance claim was denied for the reason that her disability was disqualified by
The last individual plaintiff, Ms. Jaramillo, was eight months pregnant when the initial petition for writ of mandate was filed. The court has been advised that she since had a normal delivery of her child. Except for her husband‘s educational expenses, her income is the sole source of support for herself, her husband, and their baby. Ms. Jaramillo wishes to receive benefits for the period during which she was physically incapacitated by the delivery of her child.
This case initially arose as two separate lawsuits. Ms. Aiello presented her claim in a federal court action, and the other plaintiffs initially presented their claims in a petition for a writ of mandate filed in the California Supreme Court. Defendant removed the state court action and it was subsequently consolidated with Ms. Aiello‘s suit. The plaintiffs who initially filed in state court moved that this court stay further proceedings pending the outcome of a state suit, but because neither the initial plaintiff nor the defendant saw any possibility that the statute could be construed so as to avoid the constitutional question, the motion was not granted. This court, therefore, must reach the federal constitutional claim presented.
III.
The threshold issue is what standard of review should be applied to test the validity of laws, such as
Although the Supreme Court has considered the question in two recent cases, Frontiero v. Richardson, 411 U.S. 677 (1973), and Reed v. Reed, 404 U.S. 71 (1971), it remains unclear how sex discrimination fits within equal protection doctrine. Although four members of the Frontiero Court were willing to hold that sex is a “suspect” classification, the majority refused to put sex in this category, at least until a case is presented that requires consideration of this extension of Reed. In view of the Supreme Court‘s intentional restraint, this court similarly does not consider whether sex discrimination is “suspect,” because the challenged statute is invalid even under the Reed test. See also Eisenstadt v. Baird, 405 U.S. 438, 447 n.7 (1972).
Plaintiffs argue that, even under the test stated in the opinion in Reed, it is unclear how classifications based upon sex should be treated by the courts. Clearly the Reed Court did not apply the “strict scrutiny” test. The Court, however, did hold invalid the statute challenged in Reed, whereas, until the last term, when the Court employed the “rational basis” test it almost always upheld the statute that was being scrutinized. See generally Gunther, The Supreme Court, 1971 Term—Forward: In Search of Evolving Doctrine on a Changing Court, 86 Harv.L.Rev. 1, 8 (1972); Developments, supra at 1087. Also, the opinion uses language quite different from language employed in some former “rational basis” opinions. Compare Reed v. Reed, supra at 75-76 with, e. g., Dandridge v. Williams, supra at 485. Finally, Reed rejects that idea that a challenged state statute can be justified on the basis of sexual stereotypes: Whereas the state supreme court found that avoiding hearings by having an automatic preference for men administrators is “neither illogical nor arbitrary,” because men generally have more experience in business matters, 93 Idaho 511, 514, 465 P.2d 635, 638 (1971), the Supreme Court deemed this “the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.” 404 U.S. at 76. In this way, Reed greatly differs from some prior sex discrimination cases. See Hoyt v. Florida, 368 U.S. 57, 61-62 (1961); Muller v. Oregon, 208 U.S. 412, 421-422 (1908).
Because of these differences between Reed and prior “rational basis” test cases, it is not unreasonable to argue, as plaintiffs do, that Reed adopted an “intermediate test” for discrimination based upon sex. See Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1972); Wark v. Robbins, 458 F.2d 1295, 1297 n. 4 (1st Cir. 1972) (dictum). It appears more likely, however, that Reed is not intended to establish a special equal protection test for sex discrimination. In Police Dep‘t v. Mosley, 408 U.S. 92, 95 (1972), the Court cites Reed as a case stating the test applicable to “all equal protection cases.” Similarly, in Eisenstadt v. Baird, supra at 446-447, the Court summarizes “[t]he basic principles governing application of the Equal Protection Clause” by quoting Reed‘s statement of the “rational basis” test.
These, and other, recent Supreme Court opinions show that Reed is probably only one of several cases that mark a general shift in the “rational basis” test to a standard “slightly, but perceptibly, more rigorous.” Green v. Waterford Bd. of Educ., 473 F.2d 629 at 633 (2d Cir. 1973); see Gunther, supra at 18-37. Under this test, courts must truly “scrutinize” challenged legislation and see whether the classifications made are “reasonable, not arbitrary, and . . . rest upon some ground of dif-
Judicial deference to a broad range of conceivable legislative purposes and to imaginable facts that might justify classifications is strikingly diminished. Judicial tolerance of overinclusive and underinclusive classifications is notably reduced. Legislative leeway for unexplained pragmatic experimentation is substantially narrowed.
Gunther, supra at 20; see Green v. Waterford Bd. of Educ., supra at 633. Also, as discussed above, the new test, as applied in Reed, requires rejection of statutory classifications based upon stereotypical generalizations rather than reason. See Stanley v. Illinois, 405 U.S. 645 (1972); Heath v. Westerville Bd. of Educ., 345 F.Supp. 501, 506 (S.D.Ohio 1972); cf.
This slightly altered “rational basis” test is the standard the court applies in this case. The court agrees with plaintiffs’ conclusion that under this test the classification contained in
IV.
Pregnancy is clearly a unique human condition: only pregnancy can result in the birth of a child. For a woman, however, the effects of pregnancy and pregnancy-related illness are debilitating in much the same way as the physical and mental conditions that are included within the scope of the disability insurance program. The question whether the exclusion of pregnancy-related disabilities from the program is arbitrary or rational depends upon whether pregnancy and pregnancy-related illness substantially differ from the included disabilities in some manner relevant to the purposes of the disability insurance program.
The search for the purposes that actuated the legislature is a difficult one. The only purpose expressly stated for the enactment of the disability insurance program is “to compensate in part for the wage loss sustained by individuals unemployed because of sickness or injury and to reduce to a minimum the suffering caused by unemployment resulting therefrom.”
The principal argument the defendant has made in this court is substantially the same argument accepted in Clark v. California Employment Stabilization Comm‘n, 166 Cal.App.2d 326, 331-332, 332 P.2d 716 (1958) —that the exclusion of pregnancy-related disabilities is necessary to protect the solvency of the dis-
Clearly it is a legitimate interest for a state to attempt to preserve the fiscal integrity of its programs. Shapiro v. Thompson, 394 U.S. 618, 633 (1969). More particularly, a state may properly seek to make a program self-sustaining and paid for by those who use it rather than by tax revenues drawn from the public at large. United States v. Kras, 409 U.S. 434 (1973); James v. Strange, 407 U.S. 128, 141 (1972). “But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens.” Shapiro v. Thompson, supra at 633; see James v. Strange, supra at 141-142; Rinaldi v. Yeager, 384 U.S. 305, 309-310 (1966). Thus, the fact that excluding pregnancy-related disabilities saves costs is only a first step; the state also must show that the exclusion of pregnancy-related disabilities rests upon some ground of difference having a fair and substantial relation to the object of the legislation.
Defendant argues that pregnancy-related disabilities are unique in that coverage of these disabilities is so extraordinarily expensive that it would be impossible to maintain a program supported by employee contributions if these disabilities are included. Unfortunately, it is impossible to determine if the cost of including these disabilities is substantially greater than the cost of including other disabilities, because, according to defendant, no statistics are available indicating the cost to the program of paying benefits on account of various disabilities presently covered. Even using defendant‘s estimate of the cost of expanding the program to include pregnan-
Moreover, regardless of the effect the inclusion of pregnancy-related disabilities would have, these disabilities cannot be excluded merely because the cost of including the entire group might be prohibitive. While some women suffering pregnancy-related disabilities will have large claims, not all pregnant women will. As the court noted in Heath v. Westerville Bd. of Educ., 345 F.Supp. 501, 505 (S.D.Ohio 1972), in its discussion of an analogous problem:
Pregnancies, like law suits, are sui generis. While there are certain general similarities between each pregnancy, no two are entirely identical. While it may be quite true that some women are incapacitated by pregnancy and would be well advised to adopt regimens less strenuous than those borne by school teachers, to say that this is true of all women is to define that half of our population in stereotypical terms and to deal with them artificially. Sexual stereotypes are no less invidious than racial or religious ones. Any rule by an employer that seeks to deal with all pregnant employees in an identical fashion is dehumanizing to the individual women involved and is by its very nature arbitrary and discriminatory. [Citations and footnote omitted.]
Similarly, by excluding all pregnancy-related disabilities on the grounds that these claims will be large, the state denies pregnant women benefits on the basis of generalities and stereotypes con-
Like the forced maternity leave in Heath, the denial of benefits for pregnancy-related disabilities seems to have its roots in the belief that all pregnant women are incapable of work for long periods of time, and therefore, they will submit large disability claims. The truth of this belief is certainly suspect. As the Heath court pointed out, the treatment of pregnancy in other cultures shows that much of our society‘s views concerning the debilitating effects of pregnancy are more a response to cultural sex-role conditioning than a response to medical fact and necessity. 345 F.Supp. at 505 n. 1. Indeed, a realistic look at what women actually do even in our society belies the belief that they cannot generally work throughout pregnancy. See Struck v. Secretary of Defense, 460 F.2d 1377, 1379 (9th Cir. 1972) (Duniway, J., dissenting), vacated and remanded to consider mootness, 409 U.S. 1071 (1972). Nevertheless, the belief that pregnant women are disabled for substantial periods results in their being denied the opportunity to work, unemployment compensation benefits designed to aid those able to work, and—because of the belief that they will submit large claims—disability insurance benefits. See generally Walker, Sex Discrimination in Government Benefits Programs, 23 Hastings L.J. 277, 282-284, 285 (1971). Thus, the apparently solicitous attitude that pregnant women are in a “delicate condition” has the effect that they often cannot earn an income or obtain the usual social welfare benefits for the unemployed. The only way to assure that this irrational result is not simply the product of mistaken stereotypical beliefs is to require, as the equal protection clause does, that each pregnant woman be considered individually. Cf. Sail‘er Inn, Inc. v. Kirby, 5 Cal.3d 1, 19-20, 95 Cal.Rptr. 329, 485 P.2d 529 (1971).
Therefore, if the state wishes to prevent or limit large claims, it must do so directly by excluding or limiting all claims in excess of certain amounts, not by excluding a disability that, in the opinion of the legislature, is likely to result in large claims. Then, to the same extent a heart attack victim or one suffering from sickle cell anemia is limited in the benefits he can receive, a woman disabled by pregnancy who makes a large claim will be limited.5 Pregnant women with smaller claims, however, would then be able to collect disability insurance benefits rather than be denied any relief on account of a stereotypical belief about women.6
The court, therefore, concludes that pregnancy-related disabilities cannot constitutionally be excluded solely because of the cost of adding these benefits. Defendant has failed to point to any rational ground of difference that would lead the court to conclude that it is not merely saving expense by arbitrarily denying benefits to a class of citizens. Thus, this case is like the hypothetical situation once suggested by the Supreme Court of a state reducing expenditures for education by barring indigent children from the schools. See
Defendant also argues that other purposes actuated the legislature when it excluded pregnant women from the disability program. Although clearly the saving of costs was the main purpose, the court considers these other purposes, because they might be genuine secondary purposes. See McGinnis v. Royster, 410 U.S. 263 (1973).
First, defendant suggests that one purpose of excluding pregnancy-related disabilities was to prevent women from receiving more than their share of benefits under the disability insurance program. This argument is based upon the fact that, at the present time, women contribute about 28 percent of the total disability insurance fund and receive back about 38 percent of the fund in benefits. Even if the state could constitutionally create a disability insurance program based upon actuarial data and tie the amount of benefits various groups would receive to the amount they contribute, the California disability insurance program is not such a program. Indeed, the program has a scale of benefits which is designed so that its likely effect will be that those earning small incomes will receive more in benefits than they contribute. See
Next, defendant argues that pregnancy-related disabilities were excluded to prevent abuse of the disability program. Pregnancy, defendant notes, is, to a large degree, voluntary, and he suggests that this would make it possible for a woman not interested in a career to abuse the disability insurance program by working a short period, becoming pregnant, and collecting a substantial award.7 But pregnancy-related illness and injuries, such as those suffered by plaintiffs Aiello, Armendariz, and Johnson, are not voluntary, and they, too, are excluded from coverage. Moreover, every other voluntary disability, including, for example, cosmetic plastic surgery, is included. Thus, it is difficult to believe that pregnancy-related disabilities were excluded to avoid abuse. If that was the legislature‘s purpose, the present scheme achieves it so irrationally that it cannot be upheld. See Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 173 (1972); Eisenstadt v. Baird, 405 U.S. 438, 448-452 (1972).
Defendant‘s final argument is that pregnancy-related disabilities are excluded to avoid potentially difficult problems of determining when a woman is truly disabled by a pregnancy-related condition. There is some question whether a state may constitutionally discriminate against a class of persons merely to eliminate hearings on the merits of their claims. See Stanley v. Illinois, 405 U.S. 645, 656-657 (1972); Reed v. Reed, supra at 76
Having found that the exclusion of pregnancy-related disabilities is not based upon a classification having a rational and substantial relationship to a legitimate state purpose, the court must hold unconstitutional the provision of
In accordance with the foregoing, which constitutes the court‘s findings of fact and conclusions of law,
It is hereby ordered and adjudged that:
(1) plaintiffs’ motion for summary judgment is granted and defendant‘s motion for summary judgment is denied;
(2) the third sentence of
(3) defendant, his successors in office, agents, and employees are enjoined from refusing to grant disability insurance benefits on account of the third sentence of
(4) defendant shall forthwith reconsider the applications of plaintiffs Aiello, Armendariz, Johnson, and Jaramillo for disability insurance benefits and grant them such benefits as they are entitled to receive without regard for the third sentence of
(5) the judgment that the court enters shall be a final judgment pursuant to
(6) plaintiffs are directed to prepare and submit a form of judgment in accordance with the foregoing and Local Rule 123.
SPENCER WILLIAMS
District Judge:
I respectfully dissent.
Plaintiffs herein, each denied disability insurance benefits by virtue of
Defendant argues that this is not a discrimination against womankind, but only a permissible limitation of liability as to certain women during the transitory period of their pregnancy—plus 28 days; that viewed in its entirety the California Disability Insurance program is not discriminatory against women since they are faring much better than men under it;1 that the limitation of liability provided by
II.
As in all Equal Protection matters the court must first determine the standard to be used in assessing the validity or invalidity of the State legislation under attack. If the legislation interferes with a right explicitly or implicitly guaranteed by the Constitution or involves a suspect classification, the state must carry the heavy burden of justification by showing a compelling state in-
The majority states that while it is likely “. . . . that Reed is not intended to establish a special equal protection test for sex discrimination“, the case does represent a movement toward a new standard “. . . . slightly, but perceptibly, more rigorous.” This leads us, the court concludes, to an equal protection analysis that rejects “. . . . statutory classifications based upon stereotypical generalizations rather than reason.” But I do not read pre-Reed cases as teaching anything less than this, and I believe that Reed teaches nothing more. The pivotal language of that opinion is a concise statement of the traditional test:
“The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective that is sought to be advanced by the operation of
§§ 15-312 and15-314 .” (Emphasis added.)
That such was and is the applicable standard is amply demonstrated in Rodriguez, supra wherein Justice Powell, writing for a majority of the court, states:
“A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review which requires only that the State‘s system be shown to bear some rational relationship to legitimate state purpose.” (Emphasis added.) 411 U.S. at 40.
Furthermore, in its most recent consideration of this question, a closely divided Supreme Court declined to hold that classifications based on sex are suspect.4
III.
Viewed separately,
The Disability Insurance Program is one segment of a three-part comprehensive insurance program to cover workers in California, the other two segments being Workmen‘s Compensation Insurance and Unemployment Insurance. The Workmen‘s Compensation Insurance Program was first enacted in California in 1913 and provided compensation for job-related illnesses or injuries regardless of fault. Then and now the law required all “employers” (as defined by statute) to secure payment of compensation for their employees by purchasing insurance from the State Fund, approved private insurance carriers or through self insurance (
Accordingly, there can be no serious question that these programs were conceived by the Legislature as insurance programs to be operated under insurance concepts.8 Furthermore, there is little question that their objective was to protect against workers’ loss of income by providing the broadest coverage and maximum benefits available within the
Governor Warren‘s message to the legislature requested that the premiums be set at 1%. The fact that this was done and has been continued at 1% over the years would indicate a continuing determination on the part of the legislature to operate the program within that level of contribution. Further indication of this intent is found in
Additional evidence of the legislative‘s continuing determination to retain the 1% contribution level can be drawn from a review of the progress of Senate Bill 419 through the most recently concluded session of the state legislature. As introduced on March 1, 1972, S.B. 419 would have amended
During all of its deliberations, the legislature had before it the cold, hard fiscal impact estimates which undoubtedly substantially affected its judgment in balancing employee contributions against benefits.10 For example, it was estimated that if S.B. 419 (as amended on June 5) became law, payments for basic disability benefits would increase $144.3 million (27.2%). The overall effect on the program would be to provide benefit payments equalling 142.4% of contributions. In its final form as passed by the legislature (and vetoed by the Governor) S.B. 419 covered only abnormal complications of pregnancy, excluded disabilities arising from therapeutic abortion, and provided necessary financing by increasing the ceiling on the amount of salary subject to the 1% contribution from $8,500 to $9,000.11
A review of the history of the legislative‘s treatment of benefits is also revealing. In each instance when the 1% contribution rate generated a surplus the legislature chose to spread it across the entire work force (including women in plaintiffs’ claimed class) in the form of increased benefits rather than for financing the removal of the limitation on liability here under attack.12 The sole amendment to
Accepting as I do the legitimacy of these legislative objectives, it is difficult to imagine any statutory provision that could be more rationally related thereto, for without
The majority holds that the purpose of
The highest State Court to consider the validity of
“A statute which excludes individuals of a specified class from benefits conferred thereby does not violate constitutional guarantees of due process of law, equal protection of the law, or uniform application of the law, providing the classification adopted is reasonably related to the purpose of the statute and is based on some natural, intrinsic or constitutional distinction which suggests a reason for and justifies the exclusion . . . . Such a classification must not be arbitrary or unreasonable, but must be characterized by some substantial qualities or attributes which render the particular exclusion from benefits necessary or appropriate.”
“It is a matter of common knowledge that illness or injury arising from pregnancy is classified and excluded from the coverage provided by private contracts of health and accident insurance, in order to effect a premium rate lower than is required in the absence of such an exclusion. It is reasonable to assume that the inclusion of illness or injury caused by pregnancy within the coverage provided by the statute would increase substantially the demands upon the Fund and require a like increase in the contribution rate. As these conclusions are within reason, the inquiry into conditions establishing them is a matter for the Legislature, . . . . It was properly within the sphere of legislative action to determine whether the objects of the statute in question would be served best by including a disability benefit which reasonably might impose upon the majority of employees a burden disproportionate to contemplated benefits, in order to favor the minority who are included within the classified group. These reasons indicate that the class excluded was not arbitrarily selected, and that the purpose of the exclusion was germane to the legislative object.” 166 Cal.App.2d at pp. 331-332, 332 P.2d at pp. 718-719.
A further rationale for
IV.
To the extent that
Notes
“Disability” or “disabled” includes both mental or physical illness and mental or physical injury. An individual shall be deemed disabled in any day in which, because of his physical or mental condition, he is unable to perform his regular or customary work. In no case shall the term “disability” or “disabled” include any injury or illness caused by or arising in connection with pregnancy up to the termination of such pregnancy and for a period of 28 days thereafter.
Women contribute only 28% of withholdings but draw 38% of the benefit payments. Put another way, men receive $.89 per dollar contributed while women receive $1.37 per dollar contributed.