519 F.2d 661 | 4th Cir. | 1975
Lead Opinion
This is a class action by certain women employees of the defendant to secure affirmative injunctive relief under Section 2000e-5(f)(3), 42 U.S.C., that childbirth disabilities of women employees of the defendant are compensable under the defendant’s employee disability plan which is applicable generally throughout all defendant’s plants. Following the disposition of certain procedural motions relating to venue
The legislative purpose behind Title VII was to protect employees from any form of disparate treatment because of race, color, religion, sex or national origin or, as one commentator has stated it, “to make employment decisions sex-blind, as well as colorblind.”
“Compensation at General Electric is interpreted broadly to include not only monetary returns but also the value of benefit programs.”
It would seem necessarily to follow, therefore, that any limitations or restrictions on disability benefits imposed by the defendant under its program of employee benefits which may be found to be sex-based would represent a discrimination in the “compensation, terms, conditions, or privileges of employment” within the proscription of the Act.
Pregnancy-related disabilities are, however, excluded from the disability benefits available under the defendant’s employee benefit program. It is specifically this restriction upon the benefits available under the program which has prompted this controversy and which the plaintiffs seek by their action to invalidate. Pregnancy is a condition unique to women and a basic characteristic of their sex. A disability program which, while granting disability benefits generally, denies such benefits expressly for disability arising out of pregnancy, a disability possible only among women, is manifestly one which can result in a less comprehensive program of employee compensation and benefits for women employees than for men employees; and would do so on the basis of sex. “[W]omen, to be treated without discrimination [under the Act], must be permitted to be women,” and this means a right to be “women” without being burdened by any discrimination in employment benefits, whether in wages or in fringe benefits, on account of characteristics peculiar to their sex.
The main thrust of the defendant’s argument in this Court, however, is that the recent decision in Geduldig v. Aiello (1974) 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256, authoritatively determined that, contrary to the conclusion of the District Court below and the guidelines of the Commission, disparity in treatment between pregnancy-related and other disabilities cannot be classified as sex discrimination prohibited under either the Equal Protection Clause or Title
In this case, on the contrary, the issue is not whether the exclusion of pregnancy benefits under a social welfare program is “rationally supportable” or “invidious” but whether Title VII, the Congressional statute, in language and intent, prohibits such exclusion. Accordingly, as the Court in Wetzel v. Liberty Mutual Insurance Co., supra, aptly observed, “our case is one of statutory interpretation rather than one of constitutional analysis.” There is a well-recognized difference of approach in applying constitutional standards under the Equal Protection Clause as in Aiello and in the statutory construction of the “sex-blind” mandate of Title VII. To satisfy constitutional Equal Protection standards, a discrimination need only be “rationally supportable” and that was the situation in Aiello, as well as in Reed and Frontiero. The test in those cases was legislative reasonableness. Title VII, however, authorizes no such “rationality” test in determining the propriety of its application. It represents a flat and absolute prohibition against all sex discrimination in conditions of employment.
We find equally without merit the contention of the defendant that this class action falls within subsection (b)(3)
The judgment appealed from is accordingly affirmed.
Affirmed
. See Gilbert v. General Electric Company, 347 F.Supp. 1058 (D.C.1972).
. See Gilbert v. General Electric Company, 59 F.R.D. 267 (D.C.1973).
. See Gilbert v. General Electric Company, 375 F.Supp. 367 (D.C.1974).
. Note, Developments — Title VII, 84 Harv.L. Rev. 1109, 1175; Sprogis v. United Air Lines, Inc. (7th Cir. 1971) 444 F.2d 1194, 1198, cert. denied 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543.
. Bernstein & Williams, Title VII and the Problem of Sex Classifications in Pension Programs, 74 Colum.L.Rev. 1203, 1214-5 (1974).
. Ibid., p. 1214; Rosen v. Republic Service Electric and Gas Company (3d Cir. 1973) 477 F.2d 90, 95; Inland Steel Co. v. National Labor Relations Board (7th Cir. 1948) 170 F.2d 247, 251, affirmed 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925.
. “(a) ‘Fringe benefits,’ as used herein include medical, hospital, accident, life insurance and retirement benefits; profit-sharing and bonus plans; leave; and other terms, conditions, and privileges of employment.
“(b) It shall be an unlawful employment practice for an employer to discriminate between men and women with regard to fringe benefits.” 29 C.F.R. § 1604.9.
* * * * * *
“(b) Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health plan available in connection with employment. Written and unwritten employment policies and practices involving mat
. Note, 1968 Duke L. Journal 671, 721-2.
. Griggs v. Duke Power Co. (1971) 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158.
. Note, Developments — Title VII, 84 Harv.L. Rev. 1109, 1175.
. Communication Workers of America v. American Telephone & Telegraph Co. (2d Cir. 1974) 513 F.2d 1024; Wetzel v. Liberty Mutual Insurance Co., (3d Cir. 1975) 511 F.2d 199; Holthaus v. Compton & Sons (8th Cir. 1975) 514 F.2d 651; Farkas v. South Western City School District (6th Cir. 1974) 506 F.2d 1400; Vineyard v. Hollister School District (D.C.Cal. 1974) 64 F.R.D. 580; Satty v. Nashville Gas Co. (D.C.Tenn.1974) 384 F.Supp. 765; contra Newmon v. Delta Air Lines, Inc. (D.C.Ga.1973) 374 F.Supp. 238, affirmed 5 Cir., 475 F.2d 768.
. The guidelines issued by the Equal Employment Opportunities Commission, which by law is charged with the enforcement of Title VII and the guidelines of which are said to be entitled to “great deference” in the construction of the Act, Phillips v. Martin Marietta Corp. (1971) 400 U.S. 542, 545, 90 S.Ct. 496, 27 L.Ed.2d 613; Griggs v. Duke Power Co., supra (401 U.S. p. 434, 91 S.Ct. 849), state specifically that “pregnancy benefits” . are within the protection of the Act.
It may be, as the defendant strenuously argues, that the Commission had earlier indicated an opinion contrary to that presently reflected in its guidelines. The defendant urges that this waffling by the Commission renders the present guidelines poor guides to a construction of the Act and that we should look to the earlier opinions of the Commission for guidance — or, at least, should give minimal weight to the Commission’s guidelines. This argument was pressed on the Court in Wetzel v. Liberty Mutual Insurance Co., supra, and
. Mutual Benefit Health & Acc. Ass’n. v. United Cas. Co. (1st Cir. 1944) 142 F.2d 390, 394, cert. denied 323 U.S. 729, 65 S.Ct. 65, 89 L.Ed. 585; Price v. State Capital Life Insurance Company (1964) 261 N.C. 152, 134 S.E.2d 171, 173.
. See, also, Wetzel, supra, where the Court, in dismissing a similar claim made in a case like the present one, pointed out that disabilities resulting from voluntary acts, i. e., done with full knowledge of potential disability, cover a wide range, as the Court observed, since “[d]rinking intoxicating beverages, smoking, skiing, handball and tennis are all types of activities in which we could sustain harm.”
. 375 F.Supp., p. 381.
. Communication Workers of America v. American Telephone & Telegraph Co., supra; Wetzel v. Liberty Mutual Insurance Co., supra. Although Aiello is not discussed in Holthaus v. Compton & Sons, supra, its inapplicability to a Title VII case is implicit in the Court’s decision.
. Note 20 at p. 496, 94 S.Ct. at p. 2492.
The point of difference in the majority and dissenting opinions in Aiello was in identifying the standard to be used in testing the “gender-based” classifications — whether it should be the test of “rationally supportable,” as adopted by the majority opinion, or what has been described as the “two-tier” test of “strict scrutiny” and “compelling necessity,” as urged in the dissenting opinion, a test which, as Chief Justice Burger in Dunn v. Blumstein (1972) 405 U.S. 330, at pp. 363-4, 92 S.Ct. 995, at p. 1013, 31 L.Ed.2d 349, observed in his dissenting opinion, “no state law has ever satisfied * * * » we concluded in Eslinger v. Thomas (4th Cir. 1973) 476 F.2d 225, 230-1, that the proper equal protection test, in cases of sex discrimination, was whether the classification had “a ‘fair and substantial’ relation between the basis of the classification and the object of the classification.” Kahn v. Shevin (1974) 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189, decided just two months before Aiello, employed this test in passing on an equal protection claim dealing with sex discrimination. The Court did make some reference in that case to the fact that the statute under review was a tax statute but such comment has been characterized as a “a smokescreen.” Note, Kahn v. Shevin and the “Heightened Rationality Test”: Is the Supreme Court Promoting a Double Standard in Sex Discrimination Cases? 32 Wash. & Lee L.Rev. 275, 288. In Weinber-ger v. Wiesenfeld (1975) 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514, Justice Brennan, who had dissented in both Aiello and Kahn on the ground that the “two-tier” standard of “strict scrutiny” and “compelling necessity” applied in sex-related cases under the Equal Protection Clause, apparently recognized that the standard adopted by the majority in Aiello and Kahn and accepted by us earlier in Eslinger, had been established and, in his opinion for an unanimous Court, he found the statutory classification invalid because it was “entirely irrational.” For a discussion of this question, see, Note, 32 Wash. & Lee L.Rev. 275; Gunther, In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972); Bartlett, Pregnancy and the Constitution: The Uniqueness Trap, 62 Cal.L.Rev. 1532, at pp. 1538-40 (1974); Note, Geduldig v. Aiello, 75 Col.L.Rev. 441 (1975); Note, Kahn v. Shevin — Sex: A Less-Than-Suspect Classification, 36 U.Pitt.L.Rev. 584 (1974); Note, Geduldig v. Aiello, 52 J. of Urban L. 591 (1974).
. At p. 496, 94 S.Ct. at p. 2492.
. Reed v. Reed (1971) 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.
. Frontiero v. Richardson (1973) 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583.
. 42 U.S.C. § 2000e-2.
. The EEOC guidelines provide that “the bona fide occupational qualification exception as to sex should be interpreted narrowly.” 29 C.F.R. § 1604.2(a) (1972). The guidelines specifically reject the following as justifiable discrimination under the “bona fide occupational qualification” rubric: refusal to hire a woman based on assumptions about the “comparative employment characteristics of women in general” (for example, the assumption that women’s turnover rates are higher than those of) men); refusal to hire an individual based on sexual stereotypes; refusal to hire because of client or co-worker preferences. Id. § 1604.-2(a)(l)(i)-(iii). The only situation in which the Commission will allow sex as a bona fide qualification is “where it is necessary for the purpose of authenticity or genuineness” (for example, a female role in a motion picture). Id. § 1064.2(a)(2). * * * ” This construction accords with our own decision in Robinson.
. While the defendant disclaimed consistently any intention of asserting a business necessity defense under Section 703(e) of the Act, it did offer considerable evidence on the “business considerations” which prompted its exclusion of childbirth disability in its employee benefit plan. It regarded this evidence as “material,” to quote its own brief, “not because of a Section 703(e) reason, but rather because it shows the absence of pretextual motivation under the Geduldig, supra, rationale.” [p. 12, Reply Brief] Since we do not consider Geduldig in point here, it is unnecessary to consider this evidence. It might be noted, though, that these same “business considerations” were marshalled in opposition to the enactment of the Equal Rights Law one year before the enactment of Title VII and were discarded by the Congress. See U.S.Code Cong. & Admin. News, 88th Cong., 1st Sess., 1963, pp. 687 and 689. Since the two Acts (i.e., the Equal Pay Law and Title VII as directed at sex discrimination) had a similar purpose, Congress no more regarded “business considerations,” that is, claimed greater absenteeism by women employees, etc., as a basis for escape from the prohibitions of Title VII than it did for the Equal Pay Law. See, Note, 84 Harv.L.Rev., supra, at p. 1174. As to whether there is any basis in fact for those claims of “business considerations,” see Bartlett, supra, at pp. 1158-9.
. Eisen v. Carlisle & Jacquelin (1974), 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732.
. Since the Supreme Court has granted cer-tiorari in Wetzel v. Liberty Mutual Insurance Co., supra, see 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975), the District Court should perhaps defer further proceedings herein until after Wetzel is decided.
Dissenting Opinion
(dissenting):
I respectfully dissent from the majority opinion that the exclusion of pregnancy related disability from the application of an employee disability benefits program is prohibited by Title VII, 42 U.S.C. § 2000e et seq.
I think such a holding is precluded by the decision of the Supreme Court in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). Although that case involved an action brought under the equal protection clause of the Fourteenth Amendment and not Title VII, the decision should control here.
42 U.S.C. § 2000e-2 provides in part that it shall be an unlawful employment practice for an employer to discriminate against an individual because of the individual’s sex. The inquiry in this case must therefore focus initially on whether the exclusion of pregnancy related disability from the disability benefits plan is sex discrimination. If it is not sex discrimination, then, regardless of what test is applied, there is no Title VII violation.
The court, in Geduldig, held that the exclusion of pregnancy from a state disability insurance plan for employees of private employers was not a classification that would support a finding of sex discrimination, since it was not shown that distinctions involving pregnancy were mere pretexts designed to effect an invidious discrimination against one sex. 417 U.S. at 496-97, n. 20, 94 S.Ct. 2485. Such a showing was not made here.
The Court said of the California insurance plan, “There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program. There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.” Geduldig, 417 U.S. at 496-97, 94 S.Ct. at 2492. In a footnote, 417 U.S. at 496, n. 20, 94 S.Ct. at 2492 in reply to the dissenting opinion, the Court explained that the pregnancy exclusion is a “far cry from cases like Reed . and Frontiero . . . involving discrimination based upon gender as such,” and most importantly continued: “The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition — pregnancy — from the list of compensable disabilities.” 417 U.S., n. 20, p. 496, 94 S.Ct. p. 2492. And later in the same footnote appears the flat statement which should control our case: “The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis.” 417 U.S., n. 20, p. 497, 94 S.Ct. p. 2492.
Absent a showing of sex discrimination, Title VII, even if its reach were broader than the equal protection clause, would not render unlawful a pregnancy exclusion such as that involved here. Since the Supreme Court has held, for precisely the same exclusion, there is a “lack of identity between the excluded disability and gender as such,” the exclusion should no more support a finding of
But, in this circuit, the reach of Title VII is not broader than that of the Fourteenth Amendment. We have held that “the test of validity under Title VII is not different from the test of validity under the fourteenth amendment.” United States v. Chesterfield County School Dist., S. C., 484 F.2d 70, 73 (4th Cir. 1973).
Additional reasons for my disagreement are the illogical results bound to follow. For example: a state’s disability benefit plan for its own employees covered by Title VII, 42 U.S.C. § 2000e(b), would, under our holding, not be allowed to exclude pregnancy from its coverage. However, such an exclusion could be made freely in a state plan for employees of private employers such as that in Geduldig. I fail to see the justification for the inconsistency.
I grant the majority opinion is most persuasively written. Nevertheless, after many readings, I am left with the impression that, read as a whole, it very nearly follows the rationale of the dissenting justices in Geduldig which has been rejected by a majority of the court as emphasized in footnote 20 above referred to.
In sum, I am of opinion Geduldig was written with an eye to Title VII cases certain to come, not in a vacuum and not with self imposed blinders, and came to the only result logically possible when we consider that the Court must be the even handed arbiter in all cases, not only those involving equal protection. I even assume that the result in Geduldig may not be as socially desirable as the minority there argues for, and the majority here obtains. But social desirability is not the aim. The aim is to construe the statute in view of applicable precedent and legislative purpose. And Title VII seeks to equalize opportunity, not create an advantage for either men or women. If Congress wishes to legislate in favor of pregnant women, I see no constitutional impediment,
. Indeed, the very opinion of the district court affirmed here indiscriminately cites equal protection and Title VII cases in support of its position. That the rule in this circuit as recited from the Chesterñeld County case is a widespread practice is pointed out in a comment in 75 Col.Law Review, 441, 464, 467 (1975).
. See Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), and Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).