*1 FEDERAL SAVINGS & LOAN ASSN. CALIFORNIA et FAIR DIRECTOR, DEPARTMENT OF GUERRA, al. HOUSING, AND EMPLOYMENT et al. January Argued October 1986 Decided
No. 85-494. *2 Marshall, J., judgment of the Court and delivered announced C, IV, I, II, III-B, respect Parts and opinion of the with Court III — JJ., joined, Blackmun, Stevens, O’Connor, and Brennan, and which Brennan, Blackmun, III-A, respect Part which opinion an Stevens, J., opinion concurring JJ., filed an O’Connor, joined. and Scalia, J., filed post, p. part concurring judgment, in the White, J., p. 295. filed a concurring judgment, post, opinion in the J., Powell, J., Rehnquist, joined, opinion, C. dissenting in which post, p. 297. petitioners. argued the cause for With B. Olson
Theodore Carr, him the briefs were Z. L. Jr., Pamela Willard and Jan E. Eakins. Blankenstein, Paul Hemminger, Attorney Deputy Johnston, Marian M. General Cali respondents. argued the cause for With her on the fornia, Kamp, Attorney General, K. Van de Andrea brief were John Attorney Ordin, General, and Sheridan Chief Assistant Deputy Attorneys Jennings Beverly Tucker, Anne M. General.* opinion delivered the of the Court.
Justice Marshall question presented whether VII Civil Rights Pregnancy Act of as amended Dis- pre-empts crimination Act of a state statute that re- urging curiae *Briefs of amici reversal were filed for the United States *3 Fried, by Attorney Reynolds, Deputy General Assistant Solicitor General Geller, Carvin, Deputy Attorney Solicitor General Assistant General Lazarus, Landsberg, Flynn, Mary Richard Brian K. David K. E. J. and Mann; Equal Employment Advisory by and for the Council Robert E. Wil- McDowell, liams, Douglas Lorence L. S. and Kessler. urging
Briefs of amici curiae affirmance were filed for the State of Lieberman, by Joseph Attorney et al. I. Connecticut General of Connecti- Riddle, cut, Attorney General, Deputy Comerford, Nardi Brian Clarine J. Jr., Attorney General, Philip Murphy, Assistant A. Corinne K. A. Watanabe, Attorney Hawaii, Greely, Attorney General of Michael General Montana, Eikenberry, Attorney Washington; Kenneth and General of Orga- American Federation of and for the Labor of Industrial Berzon; by nizations Laurence Gold and Marsha S. for California Women Houser, Lawyers Koehn, Loder; by Cheryl et al. M. L. Janet and Lorraine Kurtz, Davis, Rights by Equal Nancy for Advocates et al. Judith E. L. Kay; Rights by and Herma Hill Human Richard F. Advocates et al. Weissmann; Ziegler and Andrew for the National of State Conference Solomon, Peterson, Legislatures by et Bar- al. Benna Ruth Todd D. and Etkind; Barnes, by Graff, E. bara and for Lillian Garland Joan M. Robert Patricia Shiu. and of amici curiae were filed for the American Briefs Civil Liberties Union Bertin, Pinzler, Kannar, by George E. Isabelle Katz
et al. Joan and Sims; by for the Chamber Commerce the United States Charles Conrad; Reproductive Equality for the Coalition for Robin S. the Work- Resnik; place by Anne Littleton and et al. Christine Judith and for the by Ross, Organization for et al. Deller National Women Susan Sarah E. Bums, Wendy Webster Williams. leave
quires employers and reinstatement to em- disabled ployees by pregnancy.
HH California Fair Employment s Act Housing (FEHA), seq. (West 12900 et Cal. Gov’t Code Ann. 1980 and Supp. 1986), is comprehensive statute that discrimi- prohibits nation in housing. September 1978, California amended the FEHA to certain forms of proscribe employment discrimination on the basis of pregnancy. See Cal. Labor Ann. Code §1420.35, Stats., Cal. ch. 1321, (West §1, pp. Supp. 1979), now codified at Cal. 12945(b)(2) (West 1980).1 Gov’t Ann. Code Subdivision (b)(2) at issue provision here —is the only portion —the statute that applies employers subject to Title VII. 12945(b)(2)provides, part: Section relevant employment practice upon
“It shall be an unlawful unless based a bona occupational qualification: fide “(b) any employer For to refuse to employee allow a female affected childbirth,
pregnancy, or related medical conditions ....
“(2)
To take a leave on account
period
for a reasonable
time; provided,
period
such
shall not exceed four months. . . . Reasonable
period
period during
of time means that
employee
which the female
is dis-
*4
pregnancy, childbirth,
abled on account of
or related medical conditions....
employer may
“An
require any employee
plans
pur-
who
to take a leave
give
suant to this section to
reasonable notice of the date such leave shall
commence and the estimated duration of such leave.”
Originally,
reverse,
the statute was intended to
employ-
as to California
ers,
the rule established
this Court’s
in
decision General Electric Co.
Gilbert,
time,
prohibited
§ It these to female unpaid employees up leave of to an Respondent Employment Housing and four months. Fair interpret agency authorized to Commission, the state 12945(b)(2) § FEHA,3 to California em- has construed ployers employee returning preg- to from such reinstate nancy job previously unless it is no held, leave to the she longer necessity. due to the latter available business good-faith employer must make a case, reasonable, effort job.4 place employee substantially to similar compel paid employers to statute does not leave to pregnant employees. Accordingly, only preg- benefit 12945(b)(2) § actually qualified nant workers derive from is a right to reinstatement. Rights
Title VII of the Civil Act of U. S. C. §2000e prohibits seq., et also various forms of subject legislation pending Congress,
2 Aware that on this was before legislature following the state added the section: “In legislation amending the event enacts Title VII of the Civil Rights prohibit pregnancy, Act of discrimination the basis of sex (2) (b). act, provisions except paragraph of this of subdivision . . shall any inapplicable employer subject to . . . be such federal law .” 1978 Stats., 1321, §4, p. Cal. ch. 4322. Congress'passed the Pregnancy
When Discrimination Act of sec- this law, except (b)(2), applied tion rendered the state subdivision invalid as employers by Title subsequently adopted all covered VII. California sub- (e), provides: division which (2) provisions section, except paragraph (b),
“The of this of subdivision inapplicable subject employer shall be of VII the federal Rights 1964.” Civil Act of 12935(a)(1) 12935(h) (West 1980). §§ Ann. See Cal. Code Gov’t Respondent Department Employment Housing Fair the state agency charged enforcing § the FEHA. parties stipulated interpretation have the Commission’s 12945(b)(2) regulation proposed reproduced App. is set forth its Department 47. See also Matter Fair Employment Accusation Housing Express, v. Travel No. FEP Case 80-81 A7-0992s N18709 1983) (Aug. 4, (precedential construing Commission decision (b)(2)). *5 including on the basis of sex. discrimination
discrimination, Gilbert, 429 Electric v. Co. in General However, (1976), that discrimination on the basis ruled this Court under Title VII.5 was not sex discrimination passed response decision, to the In Gilbert (PDA), Pregnancy 42 U. S. C. Act of 1978 Discrimination §2000e(k). specifies in discrimination PDA that sex The pregnancy.6 on the basis cludes discrimination Gilbert, held that an otherwise v. the Court Electric Co. General plan not violate Title VII because disability insurance did comprehensive Relying Geduldig v. on pregnancy-related disabilities. it failed to cover (1974), plan against a Four Aiello, upheld a similar which 417 U. S. challenge, the concluded that equal protection Court Amendment teenth was not dis compensable disabilities pregnancy from the list of removing S., The Court further sex. 429 U. at 133-136. on the basis of crimination in fact worth more to proof package that the there is no “[a]s held that women, any gender-based discrimina impossible it is to find than to men Id., . . . .” at 138. tory in this scheme effect id., (opinion of at 146 dissented. See Members of Court Three id., Stevens, Marshall, J.); (opinion at 160 Brennan, J., joined by J.). employer’s have held that the dissenting would The Justices by giving protection men for all cate- of sex on the basis plan discriminated only partial protection. giving women gories of risk but (1977), the Court Satty, 434 U. S. 143-146 v. In Nashville Gas Co. employer’s policy sick-leave that excluded uphold an relied Gilbert pregnancy. (k) §701, the definitional section of PDA added subsection (k) part: provides, relevant VII. Subsection include, are basis of sex’ but or ‘on the terms ‘because of sex’ “The childbirth, re- pregnancy, or to, or on the basis because of not limited childbirth, by pregnancy, or conditions; affected and women medical lated employment- treated the same for all shall be medical conditions related pro- fringe under benefit including receipt of benefits purposes, related ability inabil- similar in their not so affected but persons grams, as other 703(h) interpreted of this title shall be work, nothing in section ity permit otherwise.” Congress’ approval of the views PDA reflects history of the legislative Dry Dock Newport Shipbuilding News & Gilbert. of the dissenters (1983) (citing legisla- 669, 678-679, EEOC, and nn. U. Co. history). tive *6 l-H rH Savings California Federal & Loan Association
Petitioner Fed) (Cal federally savings a chartered and loan association is A.ngeles; employer by it is an in Los covered both based facially Fed leave and Cal has a neutral §l2IÍ45(b)(2)^ VII permits" employees completed policy have three who unpaid of service to take leaves of absence for a vari- months including disability pregnancy. ety Al- reasons, and try policy employee though it is Cal Fed’s upon unpaid position returning, taking with a similar leave expressly right reserves to terminate an em- Fed Cal position ployee if similar has a leave of a is who taken absence available. employed by receptionist Fed as a Lillian Garland was Cal January years. she took for several disability leave. she was to return When able to work year, April in- Fed, of that Garland notified Cal but was job that her had been no formed filled and there were positions receptionist or similar filed a available. Garland Department complaint respondent Employment of Fair Housing, which issued an accusation and administrative against Respondent" charged Cal Fed on her behalf.7' Cal 12945(b)(2) § violating Fed with 'Prior to FEHA.' .the hearing respondent Employment before Fair scheduled Housing by petitioners joined Fed, Mer- Commission, Cal and Manufacturers chants Association California brought Commerce,8 action Chamber this United District for the Central District California. States Court position a receptionist Fed in November Cal reinstated Garland was seven months after she first notified it that she able to return to work. Petitioner Merchants and Manufacturers Association a trade associ employers represents throughout ation that numerous State of Califor represents many nia. Petitioner California Chamber Commerce also organizations subject members businesses. Both have that are California 12945(b)(2) disability-leave policies to both Title VII and have similar Fed’s. to Cal 12945(b)(2)
They sought a declaration that
is inconsistent
injunction against
by
pre-empted
with and
Title VII and an
pe-
granted
Court
enforcement of the section.9
District
¶
summary judgment.
34,227,
33 EPD
titioners’ motion
(1984). Citing Newport
p. 32781,
FEP
News
Cases
Dry
Shipbuilding
EEOC,
Dock Co.
statute was 1144(a). (ERISA), parties stipulated Security 29 C. that Act prejudice. App. without claim would be dismissed petitioners’ ERISA 9-10, nn. 2. News, plan health Newport evaluated a insurance that the Court pregnancy-related employees with benefits for conditions provided female conditions, provided but as for medical less exten to the same extent other employees. pregnancy spouses for of male The Court found sive benefits employees respect against male this limitation discriminated conditions, terms, privileges compensation, their to the 703(a)(1) “The 1978 Act [the PDA] Title VII. makes in violation of discriminatory pregnancy-related treat conditions that it is less clear plan unlawfully gives petitioner’s Thus favorably conditions. than other dependents package for their less employees married a benefit male coverage dependency provided to married female em inclusive than S., ployees.” at 684. U. judgment, its Garland moved inter After the District Court entered 24(a)(2). Civil Procedure The District pursuant to Federal Rule of vene untimeliness, of a grounds: motion on lack “direct denied her several Court litigation, adequate representation of interest in the and substantial” Appeals for Ninth Court of Circuit United States It dis- F. 2d held that “the reversed. 12945(b)(2) discriminates trict conclusionthat section court’s against pregnancy sense, defies common men on the basis of misinterprets PDA.” law, Title VII and the case and flouts omitted). (footnote reading of Id., at Based on its own Newport Appeals News, that the PDA the Court of found pregnancy’s ex- law be blind to does not “demand state enacting at The court 2d, 758 F. 395. held that istence.” “to the PDA intended construct floor beneath may drop pregnancy a ceil- which benefits —not ” they ing may Id., rise. Because which above goal equal furthers the found that the California statute Appeals employment opportunity women, the Court guar- preempt a concluded: “Title VII does not state law that antees women a certain number of dis- ability days, with, is neither leave because this inconsistent Ibid. under, nor unlawful Title VII.” (1986), granted We 474 U. S. and we now certiorari, affirm.
III
A determining by pre-empted In whether a state statute is Supremacy federal law and therefore invalid under the Constitution, Clause of the our sole task is to ascertain Congress. Inc., Lines, intent of See v. Delta 463 Shaw Air (1983); Corp., U. S. 95 Malone v. Motor 435 U. S. 85, White (1978). may supersede Federal law 497, 504 law state in ways. acting several different when constitu- First, within Congress empowered pre-empt limits, tional by is state law express g., stating so in terms. E. Rath Pack- Jones v. (1977). ing congressional 519, in- Co., 430 U. S. 525 Second, appeal denying her interests defendants. Her from order interven- appeal unreported tion on the In was consolidated merits. order, Appeals in- the Court of for the Ninth Circuit affirmed the denial of tervention; Garland did seek review of decision here. particular may pre-empt in- state law a area be
tent to sufficiently regulation scheme of federal is ferred where the comprehensive to make reasonable the inference that Con- supplementary regulation. gress no room” for state “left (1947). Corp., 331 218, Rice Fe Elevator U. S. v. Santa pre-emption in this case. these bases for exists Neither of categorically explicitly Congress intent has disclaimed “occupy pre-empt the field” of state law or to §§2000e-7 C. and2000h-4. law. See U. S. discrimination Congress areas has alternative, third those where As a may displaced regulation, completely law state federal actually pre-empt con- state law to the extent it nonetheless either because law. Such a conflict occurs flicts with federal regulations phys- “compliance federal and state is with both impossibility,” Growers, Inc. Florida Lime Avocado v. ical & (1963), the state law Paul, 132, or because U. S. accomplishment and execution “as an obstacle to the stands objectives Congress.” purposes Hines v. full of the and. (1941). Michigan Davidowitz, See Canners 52, 312 U. S. Marketing Agricultural and Bar Assn., Inc. v. Freezers & (1984);Fidelity gaining Federal Bd., Sav U. S. (1982). ings Cuesta, 141, 156 Assn. v. De la 458 U. S. & Loan lightly presumed. pre-emption is not to be Nevertheless, Maryland Louisiana, 451 pre-emption at issue this case. This third basis §§708 Rights Act, 1964 Civil two sections pre-empted state laws will be indicated that has actually only they 708 of with federal law. Section if conflict provides: Title VII exempt
“Nothing deemed to or re- in this title shall be any liability, duty, penalty, any person from lieve by any present punishment provided or future law *9 any political other than State, of a State or subdivision permit any purports or such law which to employment doing any an unlawful of act which would be 282
practice 42 262, under this title.” 78 Stat. U. S. C. §2000e-7. applicable all XI, 1104 of Title titles of the Civil
Section Rights following pre- standard for Act, establishes emption: any
“Nothing title of this Act shall be con- contained part Congress indicating an intent on the of strued as any operates occupy such title to the the field which subject matter, nor exclusion of State laws on same any provision Act construed as invalidat- shall of this be any ing provision provision such is in- of State law unless purposes any Act, consistent with of this §2000h-4. provision thereof.” 78 42 U. C. 268, Stat. Accordingly, congressional there is no need to infer intent to pre-empt provisions state laws from the substantive of Title VII; these two sections a “reliable indicium of con- gressional respect authority” regulate intent with to state practice. Corp., supra, Malone v. Motor White at 505. severely pre- 708 and 1104 limit Title VII’s
Sections emptive pre-empting employ- effect. Instead of state fair § they “‘simply ment 708 left them laws, where were before ” Lines, Inc., the enactment of title Shaw v. Delta Air VIL’ supra, (quoting Industries, 24 Pervel Inc. n. Rights Opportunities, Connecticut on Human Comm’n (Conn. 1978), Supp. 468 order, F. affirmance 603 F. (CA2 (1980)). 1979), denied, 2d cert. U. S. 1031 § Similarly, primarily intended was “assert inten preserve existing rights tion civil laws.” (remarks (1964) Meader). Cong. Rep. Rec. 2788 See also (1963) (addi Cong., Rep. H. R. 88th 1st Sess., No. Meader).12 Rep. scope pre- tional views narrow Meader, Representative sponsors Rights one of the Civil Act, proposed precursor Rights to 1104 as an amendment to the Civil Act, (1964), Cong. see 110 Rec. 2788 because he feared that 708 and simi-
283 impor- §§708 emption available 1104 reflects under to state antidiscrimination laws tance attached equal employment opportunity. achieving goal Title VII’s generally Lines, Inc., Air S., Shaw Delta 463 U. at v. Corp., Kremer Construction 456 101-102; v. Chemical (1982); Gaslight Club, New York 472, 477 Inc. 461, 468-469, (1980).13 Carey, legislative 54, 447 U. v. S. his- supports interpretation tory PDA a narrow also opinion provisions,14 v. Delta does our Shaw Air these supra.15 Lines, Inc., requires
In the California statute order decide whether permits employers as amended VII, to violate purposes statute, with the of the we PDA, or inconsistent “wholly preserve the inadequate in other were valid- provisions lar titles Rep. H. R. No. ity of State aimed at discrimination.” and force laws Meader). (additional (1963) Sess., Rep. Cong., 1st views His 88th “except pre-empted laws would not be to the provided state version provisions positive conflict between such that there is direct and extent consistently together.” cannot reconciled or stand that the two be so adopted by Congress ultimately version was Cong. Ree. 2787 objection without from by Representative offered Mathias a substitute Id., no indication that at 2789. There is this Representative Meader. § 1104. thrust of altered the basic substitution prohibits employment prac law example, or local For where state 706(c) until state or tice, requires of federal enforcement local deferral or local law to rem opportunity have an “to act under such State officials 2000e-5(d). practice alleged.” edy the (1977) (state 95-331, 14 See, Rep. p. prohibiting n. laws g., e. No. “[sjince pre-empted, on the would not be basis of discrimination require violating pre-empt laws which would VII does State title VII”), History Pregnancy Discrimination Act of Legislative title (Committee (1980) prepared Print for the Senate Committee p. 40 Resources) (hereinafter Hist.); Cong. Leg. Rec. and Human on Labor (state Williams) (1977) (remarks create a laws that “clear of Sen. pre-empted). be would conflict” Lines, Inc., 100-104, S., we Delta 463 U. concluded Air Shaw proscribed a New York statute which dis pre-empt Title VII did not at a time pregnancy as sex discrimination when on the basis of crimination equate did not the two. Title VII prohibits the PDA whether States from
must determine requiring employers reinstatement their, regardless policy for disabled workers workers, *11 generally.
B
argue
language
the
of the federal statute
Petitioners
“special
unambiguously rejects
treatment”
itself
California’s
rendering
approach
pregnancy
thus
discrimination,
re-
unnecessary. They
history
legislative
contend
sort to the
employer
of
PDA forbids an
that the second clause
the
differently
employees any
other
treat
disabled
than
Congress
“Tt]he
employees.
purpose of
is the ulti-
Because
pre-emption inquiry,
of the
Malone v.
mate touchstone’”
Corp.,
(quoting
504
S.,
Motor
435 U.
at
Retail Clerks
White
(1963)),
Schermerhorn,
however,
S.
96,
v.
375 U.
we
against
background
language
PDA’s
the
must examine the
history
legislative
lan-
context. As to the
its
historical
may
thing
guage
“[i]t
PDA,
rule,
the
is a ‘familiar
that a
be
yet
statute,
of the statute and
not within the
within the letter
spirit,
not
nor within the intention of its
within its
because
(1979)
Weber,
193,
443 U. S.
makers.’” Steelworkers
Holy
(quoting
Trinity
States,
the
v. United
Church of
(1892)).
Train
Public Inter-
457,
v. Colorado
Group,
(1976);
Inc., 426 U.
United
1,
est Research
Trucking Assns., Inc.,
American
310 U. S.
States v.
(1940).
passed in
It
that the PDA was
reaction
is well established
Gilbert,
in
decision General Electric Co. v.
to this Court’s
Congress
Title
S. 125
“When
amended
VII
U.
unambiguously expressed
disapproval its
both the
reasoning
holding
Gilbert deci-
and the
the Court
Newport
Dry
Shipbuilding
Dock
News
&
Co. v.
sion.”
By adding pregnancy
at
to the defi-
EEOC,
S.,
462 U.
prohibited by
VII,
the first
nition of sex discrimination
disapproval
Congress’
of the rea-
the PDA reflects
clause of
Newport
supra,
soning
News,
678-679, and
in Gilbert.
at
history).
imposing
legislative
than
a
(citing
Rather
n. 17
purpose
we believe
PDA,
remedial
limitation on
holding
to overrule
clause was intended
that the second
against
discrimination
to illustrate how
in Gilbert
14n.
S.,
462 U.
at
pregnancy
Cf.
is to be remedied.
specific
(“The meaning
limited
clause is not
of the first
application
explains
language
which
clause,
in the second
employees”);
id.,
general principle
see also
to women
subject
Accordingly,
dissenting).16
J.,
(Rehnquist,
Appeals’
agree
the Court of
limitations,17we
certain
Congress
“a floor be-
PDA to be
intended the
conclusion
drop
may
pregnancy
benefits
neath which
—not
they may
ceiling
2d,
F.
at 396.
rise.” 758
above which
Congress
the issue of
considered
The context
which
supports
of the PDA.
this view
discrimination
of discrimination
evidence
disability
had before it extensive
*12
pregnancy, particularly
health insur-
against
and
challenged
programs
and Nashville
Gilbert
like those
ance
(1977).18
Reports,
Satty,
de-
We was aware of state apparently laws similar to California’s but did not consider them inconsistent with the PDA. the debates and Re ports Congress repeatedly acknowledged on the bill, the ex prohibit istence of state antidiscrimination laws that sex dis pregnancy.23 crimination on the basis of Two of the States required employers mentioned then reasonable citing pregnant After laws, leave to workers.24 these state 95-948, (1978), Rep. p. Leg. Rep. Hist. 150. H. R. No. See also S. (1977) (re supra, 95-331, 41; Cong. Leg. No. at Hist. Rec. 7540 id., id., (remarks Williams); Rep. Hawkins); at 10582 marks of Sen. at id., (remarks (remarks Brooke). Javits); at 29664 of Sen. Sen. id., (remarks (“[S]ev- Javits), g., e. See, Leg. at 29387 of Sen. Hist. 67 legislatures problem by to address the eral state . . . have chosen mandat employees”). ing types Rep. certain of benefits for See also S. supra, supra, 95-331, 40; Rep. 95-948, Leg. Hist. H. R. No. at No. at (1977) (list 10-11, 156-157; Cong. Rec. 29648 Leg. Hist. of States that id., disabilities); require coverage pregnancy-related (remarks Williams). of Sen. 24See, g., e. (1977), §46a- §31-126(g) now codified at Conn. Gen. Stat. (Smith 60(a)(7) (1985); Supp. 1977), §41-2602 Mont. Rev. Codes now codi §§49-2-310 and 49-2-311 fied at Mont. Code Ann. Connecti provided, part: cut statute relevant employment practice
“It shall be an unfair (ii) employer grant pregnant] employee . . to refuse to “(g) [a For an . disability resulting preg- from such reasonable leave of absence for *14 288 requisite
Congress “clear and manifest failed to evince the purpose” supersede & Electric Co. to them. See Gas Pacific Development Energy and Resources v. Conservation State (1983). contrary, Comm’n, 190, To the both Reports suggest that these laws would House and Senate to effect the PDA.25 continue have under preg- PDA, California’s VII, amended Title as goal. nancy disability statute share a common leave equality purpose achieve of Title VII “to operated opportunities have in the remove barriers group employees past . favor identifiable . . over Griggs employees.” Co., Duke Power v. 401 U. S. other (1971). King Spalding, See Hishon v. & 424, (1984); Transportation v. 69, 75, U. n. 7 Franks Bowman S. (1976); 424 U. S. Alexander v. Gardner-Denver Co., 747, (1974); Douglas Corp. Co., 415 U. S. McDonnell (1973). limiting Green, 411 U. Rather than exist- S. objectives, ing principles PDA extends VII (iii) return, nancy. Upon signifying employee . . . her intent to such shall original job equivalent position equiva- be reinstated her or to an seniority, retirement, fringe and accumulated pay lent benefits and other unless, private employer’s in the employer, credits ease of a service changed impossible have so as to make it or unreasonable to circumstances § 31-126(g) do so.” Conn. Gen. Stat. virtually have The Montana statute effect 1977was identical. Both statutory compilations, been recodified in current but leave and re- requirements unchanged. Mass. instatement are also Gen. Laws (1985) leave). up maternity (providing eight weeks 149:105D suggests that the and Montana The dissent references the Connecticut disregarded, Congress expressly statutes should be because did state required anything equal “these that it understood that statutes more than Post, However, willing at 301. we are not as the dissent treatment.” ignorance Congress. to impute Where has cited these stat- PDA, Reports House think utes in the and Senate we it fair to as- provisions. their that it was aware of substantive sume example, Report pre states: title VII For the Senate “Since does not , empt require violating laws which would not title VII . . . these State able their laws if States would continue to be to enforce State the bill were 95-331, supra, 1, Leg. Hist. Rep. No. n. enacted.” *15 sponsor pregnancy.26 Williams, As a Senator them to cover legisla- thrust. . . behind this stated: “The entire Act, of the fully right participate guarantee the women basic tion is to denying equally fun- in without them the workforce, the ” family Cong. right participation in life. to full damental Rec. 29658 12945(b)(2) op- promotes equal employment also
Section employers By requiring portunity. after to reinstate women 12945(b)(2) § disability pregnancy en- leave, a reasonable preg- jobs they account of will not lose their on sures approach nancy disability.27 California’s is consistent dissenting opinion in Elec- of Justice General the Brennan enacting Congress adopted in the which Gilbert, tric v.Co. (1974), Referring Nichols, Lau U. S. 563 v. PDA. stated: decision, Justice Title VI Brennan phenomenon “[DJiscrimination encased a so- is a social unavoidably meaning tákes its and, therefore, cial context legislative products of the relevant the desired end from may products consider- demand due end enactment, ‘disadvantaged’ uniqueness individ- ation of understanding of conditions found A realistic uals. taking pregnancy today’s warrants environment labor disability policies.” fashioning into account omitted). (footnote S.,U. at 159 pregnancy “taking pregnancy By account,” into California’s disability-leave men, as well women, statute allows losing jobs. their without have families emphasized Supreme repeatedly that the Court “Proponents of the bill amending congressional intent and that erroneously interpreted had principles of Title VII law as necessary to reestablish legislation was Newport News prior to the Gilbert decision.” they had been understood EEOC, S., Dry Dock Co. 462 U. at 679. Shipbuilding & Commission, provision by respondent authoritatively construed As or related medi by pregnancy, childbirth affected will “insure that women persons not so af opportunities as equal employment cal conditions have Pro Housing Employment Commission’s fected.” California Fair App. posed Regulation, see emphasize nature the limited benefits 12945
We (b)(2) narrowly only provides. drawn cover The statute is preg- period physical actual on account of nancy, childbirth, medical conditions. or related Accord- legislation prevalent protective ingly, unlike the labor earlier 12945(b)(2) century,28 does not reflect archaic or in this stereotypical notions about and the abilities of stereotypical A workers. statute based such as sumptions course, would, of be inconsistent with VIPs employment opportunity. g., Angeles goal equal e. Los See, ept. *16 Manhart, and Power 435 709 D Water v. (1978);Phillips Corp., Marietta S. Martin U.
(1971) concurring). J., (Marshall,
C agreed petitioners’ Moreover, even if we with construction reject argument we nonetheless their PDA, would requires employers statute to the California violate Title 12945(b)(2) prevent employers not does from VII.29 Section Freedman, Brown, Katz, Price, H. generally B. A. & A. Women’s (1977). context, Rights Law and the the constitutional we equal protection grounds designed “to have invalidated statutes exclude ‘protect’ gender they presumed are to or members of one because suffer ” innately handicap Mississippi an inherent or to be inferior. from Univer sity Hogan, 458 U. Women v. 12945(b)(2) §if not require employers Petitioners assert that even does pregnant employees differently employees, from to treat other disabled it specifically to permits employers prohibit do so because it does not differ course, prohibit Of since the PDA not itself ent treatment. does different certainly treatment, Moreover, not it does States to do if so. “permit” interpret expansively sug the term as petitioners we were to required incorporate every gest, prohibition would be to con State law, its state since it be held to tained Title VII into would otherwise “permit” any employer expressly prohibit. it We conclude action did not only “permit” interpreted pre-empt those must be state VII; practice expressly laws that sanction a unlawful under term practice. pre-empt laws that are silent on the does state (as complying petitioners with both the federal law construe it) “compliance is state law. This not a case where regulations physical impos both federal and state is a sibility,” Growers, Florida Lime & Avocado Paul, Inc. v. U. S., 142-143, or where there anis colli “inevitable regulation.” sion between the two schemes of Id., at 143.30 12945(b)(2) compel employers Section does not California pregnant employ to treat workers better than other disabled merely employers ees; establishes benefits that must, Employers minimum, at a workers. are give comparable employees, free benefits other disabled thereby treating by pregnancy” “women affected no better persons ability than “other so affected but similar their inability argument, petitioners Indeed, work.” at oral compliance theoretically conceded that with both statutes “is possible.” Arg. Tr. of Oral argue
Petitioners that “extension” of the state statute to employees inappropriate cover other would be in the absence Legisla- of a clear indication that this what the California They ture intended. cases in cite which this Court has declined to rewrite underinclusive state statutes found to *17 Equal g., Wengler violate the Clause. e. See, Protection v. Druggists Co., Mutual Insurance 446 U. S.
(1980); Mohammed, 441 Caban v. U. 380, 392-393, S. n. 13 argument point. This is beside the is a Extension option by to remedial be a exercised court once a statute is 30Indeed, Congress Legislature and the California were each aware in by general regulatory adopted they terms of the the scheme other when recognized their legislation. many provisions enacted California that of its and, pre-empted by employers be PDA accordingly, exempted would the by portions guaran from except covered Title VII all of the statute those unpaid teeing pregnant Congress leave and reinstatement to workers. pregnant was aware that some state laws mandated certain benefits for workers, they pre-empted by but indicate did not that would be federal supra, law. See at 287-288. g., Westcott, See, e. to be invalid.31
found Califano (1979) (quoting States, v. United Welsh 76, 89 result)). (1970) concurring (Harlan, in J'., U. IV 12945(b)(2) challenge petitioners’ fails. Thus, facial by by pre-empted VII, Title as amended statute is not The purposes the is inconsistent with PDA, not because doing of act does it statute, nor the federal Title under VII.32 which is unlawful Appeals judgment of the Court of
Affirmed. concurring Stevens, concurring part Justice the judgment. (PDA) Pregnancy does not Discrimination Act of 1978 recognizes in his dis- in a As Justice White
exist vacuum. “put pregnancy Congress in a not class did intend sent, of the PDA “did the enactment VII,” itself within principles.” departure Post, at from Title VII not mark a support not does lead me 298-299. But this realization position; rather, I believe that the PDA’s Justice White’s argument compels rejection posture part Title of his VII neutrality complete all and forbids the PDA mandates pregnancy.1 treatment beneficial invalid, a state statute is otherwise in cases where that, recognize We legislature intent to determine look to the state
the Court must
nullify
By arguing that exten
the statute.
whether
extend benefits or
however,
302-303,
post,
case,
inappropriate
in this
sion would be
simply ignores
pre
pre-emption,
the dissent
citing this as a basis for
requisite
invalidity.
enacting
PDA
not intend
did
Because we conclude that
pregnancy,
need not decide and
prohibit
treatment of
we
all favorable
12945(b)(2)
up
question
could be
whether
therefore do
address
policies
disparate impact
response to leave
have
legislative
held as a
workers.
agree
the Court
the California statute does
1 Because I
*18
PDA,
purport
“require
or
purposes of the
and does
conflict with the
question
PDA, I do
reach the
the
permit” action inconsistent with
(1979),
Weber,
Steelworkers v.
nant section of ignore the PDA is a definitional fact that the ever, against gender-based prohibition discrimination. VIPs Title neutrality, requiring interpreted I VII as Title Had Weber agree PDA in- that the should be with Justice would White way terpreted the Court in Weber as well. But since that interpreted a discrimi- Title to draw distinction between VII special protected against class members nation accept preference I class, of that do not members of favor neutrality. requires proposition PDA absolute that the view, I therefore conclude Justice Marshall’s preferential treatment PDA allows some which holds that the interpretation pregnancy, our of with is more consistent of say, is. This is not to view VII than Justice Title White’s preferential of is auto treatment that all however, matically scope beyond Rather, of the PDA.3 as with preferential parts treatment of the disad VII, of Title other only long permissible vantaged as it so is consistent class is Congress designed goal “accomplish[ing]the Title supra, goal Weber, at 204.4 That has been VII to'achieve.” presents opinion as no holding 3 I read the Court's VII do not Although pregnancy. of whatsoever on beneficial treatment limitations ceiling” a lan opinion make mention of the “floor” but “not does some ante, 285, Appeals, of at the Court also guage employed the Court see do, employer can even points are limitations on what an out that there ante, 285, “preferential” pregnancy. affording treatment when subjected Indeed, stat 17, Appeals also California’s n. Court prophylactic pur policy furthers ‘Title VII’s to the test of “whether the ute employment opportunities.’”” 758 F. 2d pose achieving “equality (1985) Log Scaling Grading (quoting Puget Sound & EEOC v. (CA9 1985) (in Griggs Bureau, quoting turn v. Duke 752 F. 2d (1971))). Co., Power U. S. explore yet had the exact line has not occasion Court preferential permissible impermissible treat demarcation between view, are, my in Weber Title VII. The factors discussed ment under limits merely exemplary, necessarily define the outer of what and do not goals may attempt to private employer or do to in an effectuate a State of Title VII.
characterized “to achieve seeking equality and to remove barriers that have opportunities operated to favor identifiable of. . . past group employees over Co., Duke Power employees.” Griggs other 424, 429-430 *20 me, Court,5
It is clear to as it is to the to the was Court that of the California statute meets this Appeals,6 test. I Thus, that a California agree employer would violate the PDA it to were with California’s statute without comply men protection the same to somewhat sim affording suffering ilar disabilities. concurring judgment. Scalia,
Justice the of the Civil of 1964 only provision Rights Act whose effect on need be considered in pre-emption present the case §708 §2000e-7. VII, is of Title U. C. both Although § S. C. section and U. are §2000h-4, described by the are majority pre-emption provisions, they more precisely antipre-emption provisions, prescribing noth- (in 708) § Title VII the case of ing nothing entire (in 1104) § Act Civil case of shall be deemed to Rights pre- state law unless certain conditions are met. The ex- empt § forth in set ban on ceptions general pre-emption (“inconsisten[cy] of of this or any purposes Act, thereof”) than are somewhat broader any provision single § forth in the VII set Title ban. Because the exception (PDA) is Disability VII, Act of Pregnancy part more prohibition pre-emption of expansive particularly appli- If cable to that Title applies. precludes pre-emption 12945(b)(2) (West 1980), § Cal. Govt. Code Ann. it is unnec- § whether 1104 would do essary so. inquire Section 708 narrows the the PDA so pre-emptive scope that it pre-empts only “purpor[t] require laws which or per- mit the would be an any act which unlawful doing employ- ante, 2d, 758 F. at 396. § practice” Thus, Title. 42 S. 2000e-7. ment under the U. C. discriminatorily prohibits PDA or not the favorable whether 12945(b)(2) disability women, treatment pre-empted, re- cannot be since does not California Code any motely permit purport fed- refusal accord similarly erally equal mandated treatment to others situated. case. No more is needed to decide this only ignores antipre-emptive majority the clear ef- proceeding but, fect of even on the basis its more analysis, generalized pre-emption more than neces- decides is sary. essentially reasoning It as follows: is consistent Its purposes requirements and of the PDA for a with the State (Part pregnancy disability require special treatment for III-B); here the state law at issue does not re- besides, (Part III-C). quire special treatment for analysis, By long parity issue, we can decide so as the present facts us either do or do not it. There are before holdings, proper occasions for alternative where one of the *21 jurisdictional predicate the alternatives does not eliminate though practice for the even in that situation the is other— appropriate Court, more for lower courts than this whose being adjudged runs risk of later first arrow no to have entirely where, here, missed its mark. But as clear that presented by law is not the it is case, issue of facts of beyond jurisdiction our reach it. fully employ-
I am aware that it is more for the convenient Legislature and the ers California California have us interpret prematurely. sug- PDA It never been has gested, prohibition upon that the however, constitutional our advisory opinions rendering is a doctrine of convenience. judgment Appeals I affirm the Court of on the would 12945(b)(2) § ground the California Code does not permit any purport or act that would be an unlaw- practice employment interpreta- ful conceivable under § by PDA, virtue of therefore, tion cannot be pre-empted. whom The Chief Justice and Jus- White,
Justice tice Powell join, dissenting. disagree
I Code Ann. with the Court Cal. Govt. 1980) 12945(b)(2)(West Pregnancy § pre-empted is not (PDA), Discrimination Act of 1978 92 Stat. codified at 703(a) § 2000e(k), and 708 of Title VII. Section U. S. C. §2000e-2(a), 42 U. C. forbids VII, of Title 78 Stat. on the basis of discrimination the terms of origin. gave religion, national The PDA race, color, sex, or meaning on the basis of sex: added to discrimination
“The terms ‘because of sex’ or ‘on the basis of sex’ 703(a) Title] [in are not limited include, to, of this but pregnancy, childbirth or because of or on the basis of by preg- and women affected conditions; related medical nancy, shall childbirth, or related medical conditions be employment-related purposes, the same for all treated fringe pro- including receipt under benefit of benefits persons grams, other not so affected but similar as §'2000e(k). inability ability or to work . . . .” their quoted be clearer: it The second clause above could not pregnant employees “shall be treated mandates nonpregnant employment-related purposes” all same for ability similarly respect employees situated with to their pref- language inability leaves no room for to work. This majority pregnant workers. The erential treatment of interpre- plain meaning by misapplying our would its avoid Shipbuilding Dry Newport News & tation of the clause *22 669, 678, Ante, Dock n. EEOC, Co. v. only employees female at 285. The second clause addresses directly implicated Newport in News because the and was not pregnant persons spouses in of male that case were at issue Newport employees. the in News that We therefore stated only signifi- explanatory or illustrative second clause had any way, that the however, cance. We did not indicate says exactly in a what it situa- second clause does mean directly implicated. is tion where it Contrary PDA, law re- California mandate disability policy quires every employer a for to have leave disability. pregnancy An if has for other even it none policy complies employer if law it has leave with California disability. every pregnancy On its for but it for other denies 12945(b)(2) square conflict with the PDA is is face, permits pre-empted. the California law therefore Because preferential single pregnancy employers treatment out for §708 by VII, Title it not saved and therefore violate require pre-emption state to those that which limits laws permit employer commit an unfair practice.1 majority on
The nevertheless would save California law grounds. that the PDA does not First, two holds pregnancy from to be treated the same as other dis- permits more abilities; instead, favorable, it forbids less but express pregnancy disability. favorable, benefits unambiguously contrary, the PDA is to the command of history legislative casts no doubt on that mandate. Congress’ plain legislative reveal intent not materials pregnancy put VII, as the to majority a class itself within ceiling” approach. with its . . not a does “floor . Report clearly Ante, at 285. The Senate stated: “By defining sex discrimination include discrimina- rejects against bill women, tion view may employers its treat incidents as comparabil- generis, regard sui without to its functional ity this bill, to other conditions. Under treatment of preventing preferential language treatment based on The same clear argument provision respondents’ that the California pregnancy forecloses policies response to leave that have a upheld legislative can as a dis be parate impact pregnant workers. Whatever remedies Title VII would impact, disparate Congress expressly for victims of otherwise pregnancy to treated in the same manner as other disabilities. ordered be *23 pregnant women in covered must focus not on their condition alone but on the actual effects of that ability Pregnant condition on their to work. women permitted who are to work able must be to work on the employees; they same conditions as other and when are they not able to work for medical reasons, must be ac- rights, privileges corded the same leave and other bene- working.”2 fits, as other workers are disabled who from Report similarly legislation The House stressed that the did departure principles: not mark a from Title VII emphasized legislation, operating “It must be that this part prohibits only discriminatory Title VII, treat- require employers ment. Therefore, does not to treat pregnant employees any particular manner with re- spect hiring, permitting working, them to continue providing furnishing hospital leave, sick medical and providing any benefits, benefits, or other mat- way requires ter. H. R. 6075 no the institution of programs currently new where none exist. The bill simply require would women be treated employees ability the same as other on the basis of their inability to work.”3 2 Rep. 95-331, p. (1977), History Legislative Pregnancy No. (Committee prepared Discrimination Act of 1978 Print for the Senate Com (1980) Hist.). Resources), p. (Leg. mittee on Human Labor and added). Rep. 95-948, p. (1978), (emphasis Leg. 3 H. R. No. Hist. 150 expressed repeatedly theme also in the floor debates. same was Sen Williams, example, ator the Chairman of Senate Committee on bill, sponsor Labor and Human Resources and a of the Senate described the bill as follows in his introduction of the bill to the Senate: purpose
“The central of the bill is to workers be women equally employees ability of their treated with other on basis or inabil- key compliance every equality ity to work. The ease will be of treat- way, protect range will from the full ment. this the law women dis- adversely criminatory practices which have affected their status in the (1977), Cong. Leg. Rec. 29385 Hist. 62-63. work force.” correctly reports majority focused *24 against, preferential of, treatment rather than discrimination only pregnant one reference There is direct workers. legislative history preferential treatment. Senator the emphasize during “I the Senate debate: would Brooke stated way provides special strongly in no most that S. 995 working They have not nor demanded, benefits for women. They only to be benefits. have asked treated asked, for such employment rights as fairness, to be accorded the same with Congress the of the wide- evidence before men.”4 Given against pregnant proba- spread workers, is discrimination seriously that Members of did not consider ble most preferen- possibility that someone would want to afford pregnant parties their treatment workers. The tial implications vigorously policy argued amici to this Court pregnant preferential In workers. favor of treatment urged pref- preferential with treatment it was convictionthat merely men, women, enables like to have erential treatment losing jobs. opposition pref- their children without urged equal erential treatment it was conviction represents preferential resurgence a 19th- treatment century legislation perpetuated protective which sex-role stereotypes impeded and which women in their efforts to rightful place workplace. g., in the e. See, their Muller take Oregon, (1908); 208 U. Bradwell v. Illi- (1873) (Bradley, concurring). J., It is nois, Wall. place policy Court, however, to resolve this this interpret Congress’ dispute. task intent in enact- Our ing Congress’ the PDA. silence its consideration of the respect preferential treatment of PDA with abrogate plain fairly interpreted to workers cannot be history, legislative in the not to mention the lan- statements guage equality was statute, of treatment to be principle guiding of the PDA. (1977), Leg.
4 123 Rec. 29664 Hist. 136. Cong. acknowledgment Congress’ laws of state antidiscrimination contrary support Ante, a inference. 287-288. does not preg governing extensive discussion of state laws most Report.5 nancy found in the House It was discrimination is Maryland, reported Connecticut, six States, Alaska, Oregon, Montana, and the District Colum Minnesota, specifically pregnancy in their fair included bia practices Illinois, Indiana, In 12 States, laws. additional Michigan, Missouri, New Iowa, Kansas, Massachusetts, Washington, Pennsylvania, Dakota, and Wis York, South prohibition in the fair on sex state consin, the discrimination employment practices interpreted, either law had been require equal agency, to or the state enforcement state court *25 Finally, pregnant States, five Cali treatment of workers. Jersey, York, Island, Rhode fornia, Hawaii, New New and disability pregnancy temporary in laws had their included provide par private employers required to under are which replacement temporary wage for The Re tial disabilities. Jersey, port New however, California, that whereas noted, complications pregnancy from on the and York covered New Jersey, New New disabilities, California, as other same basis coverage Rhode set maximum limits on York, and Island disability required with for associated normal childbirth. way apart Report and the Connecticut The did not set majority statutes, relies, which the from the Montana on Report gave no The House indication other state statutes. equal required anything than treat statutes more that these in the considered, state statutes were Indeed, ment. pre-emption, but in the context of a discussion context of Report expressly stated: health costs. insurance House “many coverage” significance em this State is that “The obligation ployers already law under State are Passage pregnant of the bill disabled workers. benefits to employers.”6 impact on such little or no economic thus has supra, at 95-948, 10-11, Leg. Hist. 156-157. Rep. 5 H. R. No. supra, 95-948, 11, Leg. (emphasis in Hist. 157 Rep. 6 H. R. No. at original). legislative history anything in the from Senate
Nor does carefully statutes, that it considered the state indicate side including expressly those Montana, of Connecticut and and Report provisions. their that “25 The Senate noted endorsed interpret prac- presently their fair own States prohibit pregnancy laws sex discrimination based tices presented during childbirth,” and Senator Williams required coverage debate a list States which Senate pregnancy-related pregnancy disabilities, but there was analysis provisions.7 majority of their seems to inter- no acknowledgment legis- pret Javits’ that several state Senator including mandated latures, York, State, New his own had pregnant employees unqualified as an en- certain benefits for Ante, of those state statutes. n. 23. dorsement pressed by Senator Hatch about the Later, however, when required coverage statute limited the fact that the New York eight caused weeks, Senator disagreement expressing no his had hesitation Javits Passing York statute.8 reference to the New state statutes express recognition of their content ex- without and without press my endorsement is insufficient view to override the equal-treatment expressed PDA’s clear in the mandate, both legislative history. and its statute equally strange, ground
The Court’s second, is that prohibit special if the PDA does *26 even benefits for may employer comply an women, still with both the Califor- adopt specified policies and the nia law PDA: can leave pregnancy and at the same time afford similar benefits for surely all other disabilities. This is untenable. California require employers provide general intent had no to to disabil- ity prefer pregnancy leave It intended benefits. to and went no further. Extension of these benefits to the entire work scope would be a in the force dramatic increase of the state 7 96-331, 3, Rep. Leg. 40; Cong. (1977), No. at S. Hist. 123 Rec. 29648 91. Leg. Hist. Cong. (1977), Leg.
8 123 Rec. 29654-29655 Hist. 108-110.
303 greater impose significantly burden on Cali- law and would province employers. of the California That is the fornia Wengler Druggists Legislature. Insurance v. Mutual (1980); Mohammed, Caban v. 142, 446 U. S. Co., (1979); Craig Boren, n. 13 380, 392-393, 441 U. S. 12945(b)(2) saved Nor can be 190, 210, n. employers by applying it, tandem with such VII rights preg- required to afford reinstatement would be required a matter of state law but would be nant workers as rights all as a matter the same other workers to afford speak the PDA does not law. The text of of federal legislative history question it is clear from the but this impose Congress PDA intend for the such did not majority, op- recognized employers. As burdens position with the cost PDA came from those concerned to the disability plans. including benefit in health and acknowledged Report these The House at 286. Ante, way requires explained “in that the bill no concerns currently programs where none new the institution Report gave a similar assurance.10 The Senate exist.”9 during legislator legislator de- stated the floor after addition, require employer to insti- PDA would not bates that the already program disability if have it did not tute a benefits employers free to to be intended in effect.11 one 95-948, 4, Leg. at Hist. Rep. H. R. No. supra, at 95-331, Leg. Hist. 41. Rep. No. Brooke) (remarks (1977), Hist. 8 of Sen. Leg. Cong. 11 123 Rec. 7541 disability (“[T]he compulsory cov not mandate being introduced would bill (remarks Bayh) Rec., Leg. Hist. 19 of Sen. Cong. at erage”); 123 (“Under only companies which al legislation, those provisions of our affected”); Cong. coverage be disability would ready voluntarily offer Hawkins) (“[A]n (remarks employer Rep. Rec., Leg. at Hist. employees to his will not have provide benefits now who does not pregnancy or child due to to women disabled provide such benefits Williams) (remarks Rec., 29386, Leg. of Sen. birth”); at Hist. Cong. any employer begin to (“[T]his legislation does Rec., Cong. provided”); 123 presently it is not insurance where health *27 disability they any provide of benefits wished—or none level long allocating pregnancy a was not factor at all—as 12945(b)(2) conjunction the PDA such benefits. employers implement requires new minimum California Reading disability programs. the state and federal leave yields together Con- in this fashion result which statutes gress expressly disavowed. pregnant preferential treatment of workers is sum, by
prohibited PDA. Sec- VII, as amended 12945(b)(2) Code, which tion California Government pregnancy, preferential benefits for is therefore extends by § purports pre-empted. It it is not saved 708 because employment prac- employers to unfair authorize commit an by Title VII.12 tice forbidden (remarks (“This
29388, Kennedy) Hist. 71 Leg. of Sen. amendment does employers provide disability plans; merely all it not insurance employers requires disability plans employees who have for their treat temporary disabilities in the pregnancy-related same fashion that all other respect policies”); are treated with disabilities benefits and leave (remarks Cranston) (“[S]ince Rec., Leg. Cong. at Hist. 131 of Sen. comparability employees, among employer basic is standard who all, pay not benefits at not does medical would have to the medical birth”); Cong. Rec., Leg. or child at Hist. costs Culver) (remarks (“The legislation today Sen. before us does not disability compulsory coverage”). mandate 12945(b)(2) require employers does to treat em Section employees; employers than other disabled free volun ployees better are employees. But if tarily to leave to all this is not a extend “purports permit doing to . . . act which which would be statute practice” VII, under Title I do know what an unlawful See, ante, like. a statute would look n. such 12945(b)(2) §by Rights Neither is saved of the Civil Act since equal-treatment purpose provisions inconsistent with the of Title VII.