AT&T CORP. v. HULTEEN ET AL.
No. 07-543
Supreme Court of the United States
Argued December 10, 2008—Decided May 18, 2009
556 U.S. 701
No. 07-543. Argued December 10, 2008—Decided May 18, 2009
Lisa S. Blatt argued the cause for the United States as amicus curiae urging reversal. With her on the brief were former Solicitor General Garre, Acting Assistant Attorney General Becker, Assistant Attorney General Katsas, Dennis J. Dimsey, and Dirk C. Phillips.
Kevin K. Russell argued the cause for respondents. With him on the brief were Judith E. Kurtz, Mary K. O‘Melveny, Noreen Farrell, Debra Smith, Amy Howe, Henry S. Hewitt, Blythe Mickelson, and Pamela S. Karlan.*
*Briefs of amici curiae urging reversal were filed for the Equal Employment Advisory Council by Rae T. Vann and Ann Elizabeth Reesman; and for the ERISA Industry Committee by Caroline M. Brown and John M. Vine.
Briefs of amici curiae urging affirmance were filed for AARP by Jay E. Sushelsky and Melvin Radowitz; for the Lawyers’ Committee for Civil Rights Under Law et al. by Eleanor Smith, Audrey Wiggins, Sarah Crawford, and Kathryn Kolbert; for the National Employment Lawyers Association et al. by Charlotte Fishman and Victoria W. Ni; for the National Women‘s Law Center et al. by Melissa Hart, Marcia D. Greenberger, Jocelyn Samuels, and Dina R. Lassow; and for Caitlin Borgmann et al. by Suzanne Novak.
The question is whether an employer necessarily violates the Pregnancy Discrimination Act (PDA),
I
Since 1914, AT&T Corporation (then American Telephone & Telegraph Company) and its Bell System Operating Companies, including Pacific Telephone and Telegraph Company (hereinafter, collectively, AT&T),1 have provided pensions and other benefits based on a seniority system that relies upon an employee‘s term of employment, understood
In the 1960s and early to mid-1970s, AT&T employees on “disability” leave got full service credit for the entire periods of absence, but those who took “personal” leaves of absence received maximum service credit of 30 days. Leave for pregnancy was treated as personal, not disability. AT&T altered this practice in 1977 by adopting its Maternity Payment Plan (MPP), entitling pregnant employees to disability benefits and service credit for up to six weeks of leave. If the absence went beyond six weeks, however, it was treated as personal leave, with no further benefits or credit, whereas employees out on disability unrelated to pregnancy continued to receive full service credit for the duration of absence. This differential treatment of pregnancy leave, under both the pre-1977 plan and the MPP, was lawful: in General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this Court concluded that a disability-benefits plan excluding disabilities related to pregnancy was not sex-based discrimination within the meaning of
In 1978, Congress amended Title VII by passing the PDA,
Four of those women are named respondents in this case. Each of them received less service credit for pregnancy leave than she would have accrued on the same leave for disability: seven months less for Noreen Hulteen; about six months for Eleanora Collet; and about two for Elizabeth Snyder and Linda Porter. Respondents Hulteen, Collet, and Snyder have retired from AT&T; respondent Porter has yet to. If her total term of employment had not been decreased due to her pregnancy leave, each would be entitled to a greater pension benefit.
Eventually, each of the individual respondents and respondent Communications Workers of America (CWA), the collective-bargaining representative for the majority of AT&T‘s nonmanagement employees, filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging discrimination on the basis of sex and pregnancy in violation of Title VII. In 1998, the EEOC issued a Letter of Determination finding reasonable cause to believe that AT&T had discriminated against respondent Hulteen and “a class of other similarly-situated female employees whose adjusted [commencement of service] date has been used to determine eligibility for a service or disability pension, the amount of pension benefits, and eligibility for certain other benefits and programs, including early retirement offerings.” App. 54-55. The EEOC issued a notice of right to sue to each named respondent and the CWA (collectively, Hulteen), and Hulteen filed suit in the United States District Court for the Northern District of California.
On dueling motions for summary judgment, the District Court held itself bound by a prior Ninth Circuit decision, Pallas v. Pacific Bell, 940 F. 2d 1324 (1991), which found a Title VII violation where post-PDA retirement eligibility calculations incorporated pre-PDA accrual rules that differ-
The Ninth Circuit‘s decision directly conflicts with the holdings of the Sixth and Seventh Circuits that reliance on a pre-PDA differential accrual rule to determine pension benefits does not constitute a current violation of Title VII. See Ameritech Benefit Plan Comm. v. Communication Workers of Am., 220 F. 3d 814 (CA7 2000) (finding no actionable Title VII violation given the existence of a bona fide seniority system); Leffman v. Sprint Corp., 481 F. 3d 428 (CA6 2007) (characterizing claim as challenging the continuing effects of past discrimination rather than alleging a current Title VII violation). We granted certiorari in order to resolve this split, 554 U. S. 916 (2008), and now reverse the judgment of the Ninth Circuit.
II
Title VII makes it an “unlawful employment practice” for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s . . . sex.”
There is no question that the payment of pension benefits in this case is a function of a seniority system, given the fact
But contrary to Hulteen‘s position, establishing the continuity of a seniority system whose results depend in part on obsolete rules entailing disadvantage to once-pregnant employees does not resolve this case. Although adopting a service credit rule unfavorable to those out on pregnancy leave would violate Title VII today, a seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA. “[S]eniority systems are afforded special treatment under Title VII,” Trans World Airlines, Inc. v. Hardison, 432 U. S. 63, 81 (1977), reflecting Congress‘s understanding that their stability is valuable in its own right. Hence,
“Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin . . . .”
42 U. S. C. § 2000e-2(h) .
In Teamsters v. United States, 431 U. S. 324 (1977), advantages of a seniority system flowed disproportionately to white, as against minority, employees, because of an employer‘s prior discrimination in job assignments. We recognized that this “disproportionate distribution of advantages does in a very real sense operate to freeze the status quo of prior
AT&T‘s system must also be viewed as bona fide, that is, as a system that has no discriminatory terms, with the consequence that subsection (h) controls the result here, just as in Teamsters. It is true that in this case the pre-April 29, 1979, rule of differential treatment was an element of the seniority system itself; but it did not taint the system under the terms of subsection (h), because this Court held in Gilbert that an accrual rule limiting the seniority credit for time taken for pregnancy leave did not unlawfully discriminate on the basis of sex. As a matter of law, at that time, “an exclusion of pregnancy from a disability-benefits plan providing general coverage [was] not a gender-based discrimination at all.” 429 U. S., at 136.4 Although the PDA would have
made it discriminatory to continue the accrual policies of the old rule, AT&T amended that rule as of the effective date of the Act, April 29, 1979; the new one, treating pregnancy and other temporary disabilities the same way, remains a part of AT&T‘s seniority system today.
This account of litigation, legislation, and the evolution of the system‘s terms is the answer to Hulteen‘s argument that Teamsters supports her position. She correctly points out that a “seniority system that perpetuates the effects of pre-Act discrimination cannot be bona fide if an intent to discriminate entered into its very adoption,” 431 U. S., at 346, n. 28, and she would characterize AT&T‘s seniority system as intentionally discriminatory, on the theory that the accrual rule for pregnancy leave was facially discriminatory from the start. She claims further support from Automobile Workers v. Johnson Controls, Inc., 499 U. S. 187 (1991), in which we said that “explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination,” and that such facial discrimination is intentional discrimination even if not based on any underlying malevolence. Id., at 199. Hulteen accordingly claims that the superseded differential affecting current benefits was, and remains, “discriminatory in precisely the way the PDA prohibits,” Brief for Respondents 18.
But Automobile Workers is not on point. The policy in that case, prohibiting women from working in jobs with lead exposure unless they could show themselves incapable of childbearing, was put in place after the PDA became law and under its terms was facially discriminatory. In this case, however, AT&T‘s intent when it adopted the pregnancy leave rule (before the PDA) was to give differential treat-
The only way to conclude here that the subsection would not support the application of AT&T‘s system would be to read the PDA as applying retroactively to recharacterize the acts as having been illegal when done, contra Gilbert.6 But this is not a serious possibility. As we have said:
“Because it accords with widely held intuitions about how statutes ordinarily operate, a presumption against retroactivity will generally coincide with legislative and public expectations. Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the coun-
tervailing benefits.” Landgraf v. USI Film Products, 511 U. S. 244, 272-273 (1994).
There is no such clear intent here, indeed, no indication at all that Congress had retroactive application in mind; the evidence points the other way. Congress provided for the PDA to take effect on the date of enactment, except in its application to certain benefit programs, as to which effectiveness was held back 180 days. Act of Oct. 31, 1978, § 2(b), 92 Stat. 2076, note following
“As the Gilbert decision permits employers to exclude pregnancy-related coverage from employee benefit plans, [the bill] provides for [a] transition period of 180 days to allow employees [sic] to comply with the explicit provisions of this amendment. It is the committee‘s intention to provide for an orderly and equitable transition, with the least disruption for employers and employees, consistent with the purposes of the bill.” H. R. Rep. No. 95-948, p. 8 (1978).
This is the language of prospective intent, not retrospective revision.
Hulteen argues that she nonetheless has a challenge to AT&T‘s current payment of pension benefits under
“an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this subchapter (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.” 42 U. S. C. § 2000e-5(e)(2) .
But, as the text makes clear, this subsection determines the moments at which a seniority system violates Title VII only if it is a system “adopted for an intentionally discriminatory purpose in violation of this subchapter.” As discussed above, the Court has unquestionably held that the feature of AT&T‘s seniority system at issue was not discriminatory when adopted, let alone intentionally so in violation of this subchapter. That leaves
It is equally unsound for Hulteen to argue that when she retired AT&T could have chosen to give post-PDA credit to pre-PDA pregnancy leave, making its failure to do so facially discriminatory at that time.7 If a choice to rely on a favorable statute turned every past differentiation into contemporary discrimination, subsection (h) would never apply.
Hulteen‘s remaining argument (as of the time the case was submitted to us) is that our decision in Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam), is on her side. In Bazemore, black employees of the North Carolina Agricultural Extension Service, who received less pay than comparable whites under a differential compensation plan extending back to pre-Title VII segregation, brought suit in 1971 claiming that pay disparities persisted. Id., at 389-391 (Brennan, J., concurring in part). We concluded that “[a] pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective,
Bazemore has nothing to say here. To begin with, it did not involve a seniority system subject to subsection (h); rather, the employer in Bazemore had a racially based pay structure under which black employees were paid less than white employees. Further, after Title VII became law, the employer failed to eliminate the discriminatory practice, even though the new statute had turned what once was legally permissible into something unlawful. Bazemore would be on point only if, after the PDA, AT&T continued to apply an unfavorable credit differential for pregnancy leave simply because it had begun to do that before the PDA. AT&T‘s system, by contrast, provides future benefits based on past, completed events, that were entirely lawful at the time they occurred.
III
We have accepted supplemental briefing after the argument on the possible effect on this case of the recent amendment to
“For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice.” Lilly Ledbetter Fair Pay Act of 2009, Pub. L. 111-2, § 3, 123 Stat. 5-6.
But the answer to this claim is essentially the same as the answer to Hulteen‘s argument that
IV
Bona fide seniority systems allow, among other things, for predictable financial consequences, both for the employer who pays the bill and for the employee who gets the benefit. Cf. Central Laborers’ Pension Fund v. Heinz, 541 U. S. 739, 743 (2004) (noting that the central feature of the Employee Retirement Income Security Act of 1974,
It is so ordered.
JUSTICE STEVENS, concurring.
Today my appraisal of the Court‘s decision in General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), is the same as that expressed more than 30 years ago in my dissent. I there-
JUSTICE GINSBURG, with whom JUSTICE BREYER joins, dissenting.
In General Elec. Co. v. Gilbert, 429 U. S. 125 (1976), this Court held that a classification harmful to women based on pregnancy did not qualify as discrimination “because of . . . sex” prohibited by
Prior to Gilbert, all Federal Courts of Appeals presented with the question had determined that pregnancy discrimination violated Title VII.2 Guidelines issued in 1972 by the
Equal Employment Opportunity Commission (EEOC or Commission) declared that disadvantageous classifications of employees based on pregnancy-related conditions are “in prima facie violation of title VII.” 37 Fed. Reg. 6837. In terms closely resembling the EEOC‘s current Guideline, see
“Written and unwritten employment policies and practices involving . . . the accrual of seniority and other benefits and privileges . . . shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.” 37 Fed. Reg. 6837.
The history of women in the paid labor force underpinned and corroborated the views of the lower courts and the EEOC. In generations preceding—and lingering long after—the passage of Title VII, that history demonstrates, societal attitudes about pregnancy and motherhood severely impeded women‘s employment opportunities. See Molnar, “Has the Millennium Yet Dawned?“: A History of Attitudes Toward Pregnant Workers in America, 12 Mich. J. Gender & L. 163, 170-176 (2005); S. Kamerman, A. Kahn, & P. Kingston, Maternity Policies and Working Women 32-38 (1983).
Congress swiftly reacted to the Gilbert decision. Less than two years after the Court‘s ruling, Congress passed the Pregnancy Discrimination Act of 1978 (PDA or Act) to overturn Gilbert and make plain the legislators’ clear understanding that discrimination based on pregnancy is discrimination against women.3 The Act amended Title VII to require that women affected by pregnancy “be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”
The PDA does not require redress for past discrimination. It does not oblige employers to make women whole for the compensation denied them when, prior to the Act, they were placed on pregnancy leave, often while still ready, willing, and able to work, and with no secure right to return to their jobs after childbirth.4 But the PDA does protect women, from and after April 1979, when the Act became fully effective, against repetition or continuation of pregnancy-based disadvantageous treatment.
Congress interred Gilbert more than 30 years ago, but the Court today allows that wrong decision still to hold sway.
I
Enacted as an addition to the section defining terms used in Title VII, the PDA provides:
“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work . . . .”
42 U. S. C. § 2000e(k) .
The text of the Act, this Court has acknowledged, “unambiguously expressed [Congress‘] disapproval of both the holding and the reasoning of the Court in the Gilbert decision.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 678 (1983). “Proponents of the [PDA],” the Court observed, “repeatedly emphasized that the Supreme Court had erroneously interpreted congressional intent and that amending legislation was necessary to reestablish the princi-
Today‘s case presents a question of time. As the Court comprehends the PDA, even after the effective date of the Act, lower pension benefits perpetually can be paid to women whose pregnancy leaves predated the PDA. As to those women, the Court reasons, the disadvantageous treatment remains as Gilbert declared it to be: “facially nondiscriminatory,” and without “any gender-based discriminatory effect,” 429 U. S., at 138. See ante, at 710.
There is another way to read the PDA, one better attuned to Congress’ “unambiguou[s] . . . disapproval of both the holding and the reasoning” in Gilbert. Newport News, 462 U. S., at 678. On this reading, the Act calls for an immediate end to any pretense that classification on the basis of pregnancy can be “facially nondiscriminatory.” While the PDA does not reach back to redress discrimination women encountered before Congress overruled Gilbert, the Act instructs employers forthwith to cease and desist: From and after the PDA‘s effective date, classifications treating pregnancy disadvantageously must be recognized, “for all employment-related purposes,” including pension payments, as discriminatory both on their face and in their impact. So comprehended, the PDA requires AT&T to pay Noreen Hulteen and others similarly situated pension benefits untainted by pregnancy-based discrimination.
II
The Court‘s rejection of plaintiffs’ claims to pension benefits undiminished by discrimination “because of [their] sex,”
Teamsters involved a seniority system attacked under Title VII as perpetuating race-based discrimination. Minority group members ranked low on the seniority list because, pre-Title VII, they were locked out of the job category in question. But the seniority system itself, the Court reasoned, “did not have its genesis in . . . discrimination,” contained no discriminatory terms, and applied “equally to all races and ethnic groups,” 431 U. S., at 355-356. Therefore, the Court concluded,
This case differs from Teamsters because AT&T‘s seniority system itself was infected by an overt differential. Cf. ante, at 710 (“[R]ule of differential treatment was an element of the seniority system itself . . . .“). One could scarcely maintain that AT&T‘s scheme was “neutral on [its] face and in intent,” discriminating against women only “in effect.” Cf. Teamsters, 431 U. S., at 349. Surely not a term fairly described as “equally [applicable] to all,” id., at 355, AT&T‘s prescription regarding pregnancy leave would gain no immunity under
Were the PDA an ordinary instance of legislative revision by Congress in response to this Court‘s construction of a statutory text, I would not dissent from today‘s decision. But Congress made plain its view that Gilbert was not simply wrong about the character of a classification that treats leave necessitated by pregnancy and childbirth disadvantageously. In disregarding the opinions of other courts, see supra, at 717-718, n. 2, of the agency that superintends enforcement of Title VII, see supra, at 717-718,5 and, most fundamentally, the root cause of discrimination against women in the paid labor force, this Court erred egregiously. Congress did not provide a remedy for pregnancy-based discrimination already experienced before the PDA became effective. I am persuaded by the Act‘s text and legislative history, however, that Congress intended no continuing reduction of women‘s compensation, pension benefits included, attributable to their placement on pregnancy leave.
III
A few further considerations influence my dissenting view. Seeking equal treatment only from and after the PDA‘s effective date, plaintiffs present modest claims. As the Court observes, they seek service credit, for pension benefit purposes, for the periods of their pregnancy leaves. For the named plaintiffs, whose claims are typical, the uncounted leave days are these: “seven months . . . for Noreen Hulteen;
Furthermore, as Judge Rymer explained in her opinion dissenting from the Ninth Circuit‘s initial panel opinion, 441 F. 3d 653, 665-666 (2006), the relief plaintiffs request is not retroactive in character. Plaintiffs request no backpay or other compensation for past injury. They seek pension benefits, now and in the future, equal to the benefits received by others employed for the same length of time. The actionable conduct of which they complain is AT&T‘s denial of equal benefits to plaintiffs “in the post-PDA world.” Id., at 667.
Nor does it appear that equal benefits for plaintiffs during their retirement years would expose AT&T to an excessive or unmanageable cost. The plaintiffs’ class is not large; it comprises only women whose pregnancy leaves predated April 29, 1979 and whose employment continued long enough for their pensions to vest. The periods of service involved are short—several weeks or some months, not years. And the cost of equal treatment would be spread out over many years, as eligible women retire.
IV
Certain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman‘s place among paid workers and active citizens. This Court so recognized in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003). Hibbs rejected challenges, under the Eleventh and
“[h]istorically, denial or curtailment of women‘s employment opportunities has been traceable directly to the pervasive presumption that women are mothers first, and workers second. This prevailing ideology about women‘s roles has in turn justified discrimination against women when they are mothers or mothers-to-be.” Joint Hearing before the Subcommittee on Labor-Management Relations and the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 2d Sess., 100 (1986) (quoted in Hibbs, 538 U. S., at 736).6
Several of our own decisions, the opinion in Hibbs acknowledged, 538 U. S., at 729, exemplified the once “prevailing ideology.” As prime illustrations, the Court cited Bradwell v. State, 16 Wall. 130 (1873);7 Muller v. Oregon, 208 U. S. 412 (1908);8 Goesaert v. Cleary, 335 U. S. 464 (1948);9 and
Gilbert is aberrational not simply because it placed outside Title VII disadvantageous treatment of pregnancy rooted in “stereotype-based beliefs about the allocation of family duties,” Hibbs, 538 U. S., at 730; Gilbert also advanced the strange notion that a benefits classification excluding some women (“pregnant women“) is not sex based because other women are among the favored class (“nonpregnant persons“).15 The very first Title VII sex-discrimination case heard by the Court, Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam), however, rejected similar reasoning. At issue in Phillips was an employer‘s refusal to
Grasping the connection Gilbert failed to make, a District Court opinion pre-Gilbert, Wetzel v. Liberty Mut. Ins. Co., 372 F. Supp. 1146 (WD Pa. 1974), published this deft observation. In response to an employer‘s argument that its disadvantageous maternity leave and pregnancy disability income protection policies were not based on sex, the court commented: “[I]t might appear to the lay mind that we are treading on the brink of a precipice of absurdity. Perhaps the admonition of Professor Thomas Reed Powell to his law students is apt; ‘If you can think of something which is inextricably related to some other thing and not think of the other thing, you have a legal mind.‘” Id., at 1157.
Congress put the Court back on track in 1978 when it amended Title VII to repudiate Gilbert‘s holding and reasoning. See Newport News, 462 U. S., at 678; California Fed.,
I would construe the Act to embrace plaintiffs’ complaint, and would explicitly overrule Gilbert so that the decision can generate no more mischief.
*
For the reasons stated, I would affirm the Ninth Circuit‘s judgment.
Notes
For decisions under state human rights laws to the same effect, see, e. g., Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 41 N. Y. 2d 84, 359 N. E. 2d 393 (1976); Anderson v. Upper Bucks Cty. Area Vocational Technical School, 30 Pa. Commw. 103, 373 A. 2d 126 (1977); Quaker Oats Co. v. Cedar Rapids Human Rights Comm‘n, 268 N. W. 2d 862 (Iowa 1978); Massachusetts Elec. Co. v. Massachusetts Comm‘n Against Discrimination, 375 Mass. 160, 375 N. E. 2d 1192 (1978); Minnesota Min. & Mfg. Co. v. State, 289 N. W. 2d 396 (Minn. 1979); Michigan Dept. of Civil Rights ex rel. Jones v. Michigan Dept. of Civil Serv., 101 Mich. App. 295, 301 N. W. 2d 12 (1980); Badih v. Myers, 36 Cal. App. 4th 1289, 43 Cal. Rptr. 2d 229 (1995).
A better explanation is that § 701(k) refers only to the final sentence of
In Nashville Gas Co. v. Satty, 434 U. S. 136 (1977), we reaffirmed our holding in Gilbert that Title VII “did not require that greater economic benefits be paid to one sex or the other ‘because of their differing roles in “the scheme of human existence.“‘” Id., at 142 (quoting Gilbert, supra, at 139, n. 17). But we noted that Gilbert‘s holding did not extend to “per-
“The Commission has determined that an employer‘s rule which forbids or restricts the employment of married women and which is not applicable to married men is a discrimination based on sex prohibited by Title VII of the Civil Rights Act. It does not seem to us relevant that the rule is not directed against all females, but only against married females, for so long as sex is a factor in the application of the rule, such application involves a discrimination based on sex.” 30 Fed. Reg. 14928 (1965).