*1 NASHVILLE GAS CO. v. SATTY Argued No. December 75-536. October 1977 Decided *2 Wray argued Charles K. the cause and filed briefs for petitioner. Weismueller, Jr.,
Robert W. argued the cause and filed a respondent.* brief for Rehnquist opinion of Court. delivered
Mr. Justice requires pregnant Petitioner a formal employees take employee pay leave of absence. The does not sick receive job while on loses leave. She also all accumulated as seniority; petitioner attempts while result, provide employee with work will be temporary upon return, her she employed permanent job pres- in a if position no only for for ently working petitioner applies position. also of Ten- United States District Court for the Middle District policies held that the Civil nessee these violate Title YII of urging of amici Ruth Bader *Briefs curiae were filed affirmance Marjorie Ginsburg, Smith, Gora, Mazen Joel and Judith Lichtman Schlossberg, by Stephen al.; American Civil Union I. Liberties et Billion, Woll, John J. Albert and Laurence American A. Gold for the Congress Organizations Federation Labor and et al. Industrial 138
Rights 78 42 253, Act of C. amended, Stat. U. S. ed., seq. (1970 Supp. 2000e et F. V). Supp. 765 § (1974). Circuit Appeals The Court the Sixth affirmed. F. 2d granted certiorari, We S. our General Electric light opinion last Term in decide, (1976), Co. v. whether the lower courts U. S. petitioner’s policies respecting Title VII to properly applied pregnancy. first is separate issue in this case. The policies
Two are at petitioner’s practice giving sick disabled nonoccupational reason sickness but not injury or by pregnancy. petitioner’s prac those disabled The second is tice of denying accumulated to female *3 returning to childbirth.1 following work caused them in We shall discuss reverse order. give an who to requires employee
Petitioner is about birth a pregnancy length. to take leave indeterminate Such employee but absent, does not accumulate while seniority indissolubly Respondent appears policies believe two together, if linked and that one is found to Title VII the other violate Respondent herself, however, to do must likewise be found so. has not throughout this In taken tack the course her lawsuit. the District only policies us, she not Court attacked the two at issue before but requirement she her addition commence leave prior child, delivery to the of her tem five weeks the termination her allegedly complaint employment regarding porary as retaliation for her petitioner's employment policies, paid preg and lower benefits for life, nancy hospitalization compared group as for causes under partly by health, policy paid petitioner for and its partly and accident respondent had employees. proved The District Court concluded not any VII, respondent practices of these to be of Title and did violative appeal appealed determination. Petitioner from Dis not from that company policies presently trict Court’s that the two in issue conclusion Title violate VII. actually any job seniority
instead loses accrued before employee’s job leave commenced. Petitioner will not hold the open awaiting for her her An return leave. employee who wishes to return work from such will placed position open qualified for which and for she which no currently employed individual before such bidding; permanent position time company as becomes available, the for If attempts employee. find work and temporary employee acquires permanent when the regains she position, previously accumulated purposes pension, for vacation, like, purpose but it for regain does job bidding future openings.
Respondent petitioner work for began 1960, on March a clerk its com Accounting Department. Customer She menced leave on December birth maternity 29, 1972, gave January to her child on later she weeks Seven re-employment with sought petitioner. position that she previously had held had been eliminated as a result bona her department. Temporary fide employment cutbacks salary prior was found her at a lower than she had earned taking holding temporary leave. While employment, respondent unsuccessfully permanent applied posi three petitioner. tions with Each position was awarded to another begun who to work for petitioner had before re spondent respondent returned from if leave; had had been *4 with seniority prior credited that she had accumulated to she leave, any would have been for positions awarded applied. temporary which she assignment was After completed, respondent requested, job “due lack of to work and openings,” petitioner change maternity her status from leave to that she unemploy termination order could draw compensation. ment petitioner’s policy
We conclude that of denying accumulated seniority to female from employees returning pregnancy leave 42 (a) VII, § 703 of Title C. (2) (a) (2) § violates U. S. 2000e-2 section, unlaw- V). it to be an (1970 Supp. That declares ed., employment ful for an to practice employer classify employees applicants or or
“limit, segregate, his deprive tend employment any way or which or deprive any opportunities to of employment individual employee otherwise status as an adversely affect his because of . . such individual's . sex . . . to face, petitioner’s seniority policy appears
On its If employees.2 neutral its treatment male and female job employee is forced to take a of absence from leave than disability pregnancy, disease or other employee, male or retains accumulated senior female, whether ity seniority on leave.3 and, continues while indeed, accrue reason, If for any takes a leave of employee absence including Peti pregnancy, seniority accumulated divested. pregnancy tioner’s decision not to treat as a disease or dis purposes seniority not on its retention is face criminatory policy. confined “Pregnancy is, course, women, ways significantly but is in other from the different typical disability.” covered disease or 429 U. appearance neutrality The part rests contention
that its is identical to the formal leave of absence granted employees, female, they may pursue male or in order However, denying petitioner’s policy additional accumulated education. seniority date returning from of absence not to leaves has 1962, only applied been Since two outside of the context. college requested pursue have formal leaves of absence to degree; petitioner. neither employee has returned to work long “employees returning The District Court found that even seniority periods non-job injuries of absence do not lose their due to related F. seniority in fact their while continues to accumulate absent.” one was Supp. record that at least reveals yet absent from work attack and returned for months due to a heart dating previous job her full period at the end of this her back to date of hire.
We have recognized, both however, intentional dis crimination policies neutral on their face but having may run discriminatory (a) Griggs effect afoul of 703 (2). § Co., Duke Power beyond S. It is dis pute that petitioner’s policy returning of depriving employees from pregnancy leave of their seniority accumulated acts both deprive to employment them “of opportunities” and to “ad versely affect status as an It employee.” apparent is [their] previous from the recitation of the events which occurred following respondent’s return from peti leave that tioner’s policy specific denied her employment opportunities that she otherwise would have obtained. Even if had she ultimately been to regain permanent position able with petitioner, she have felt the effects a lower with its level, relegation attendant to less desirable and lower paying jobs, for the remainder petitioner. of her career
In Gilbert, supra, showing there was no that General Elec- tric’s non-job-related compensating for all disabilities except pregnancy men favored over women. No evidence was produced suggest to that men more received benefits General women; fund insurance than did Electric’s subject both men generally and women were to the disabilities from, presumably covered and drew similar amounts the insur- ance under upheld plan fund. therefore Title We VII. proof
“As no is in fact worth package there is impossible more men than to find women, in this gender-based discriminatory simply scheme effect disabled do because women a result discrimina- benefits; gender-based say, receive employer’s simply result dis- tion does not For plan is less than all-inclusive. all ability-benefits constitute an disabilities pregnancy-related that appears, com- risk, unique failure to women, additional destroy presumed risk for this does not pensate them men accruing alike, and women benefits, parity *6 142
which results from facially evenhanded inclusion of risks.” 429 S.,U. at 138-139 (footnote omitted).
Here, comparison, petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden men that need not suffer. The distinction between benefits and bur dens is more than of one semantics. We held in Gilbert that 703 (a)(1) § did not require greater economic benefits paid to one sex or the other differing “because of their roles ” in The scheme of existence,’ human 429 at 139 U. 17. n. holding But that does not allow us (a) to read 703§ (2) to permit an employer to burden female way such a as to deprive them of employment opportunities of because their different role.4
4 Our petitioner’s job seniority policies conclusion violate Title VII finds support regulations Equal in the Employment Opportunity (EEOC). Commission guidelines 1972 of the EEOC specify that “[w]ritten employment and unwritten policies practices involving and . . . the accrual seniority of . . . and applied reinstatement . . . shall be due or childbirth on they the same and term's conditions as applied temporary to other (1976). disabilities.” 29 (b) CFR 1604.10 § rejected portion In we another guideline of this same because prior, conflicted contemporaneous, with more interpretations thus of EEOC, interpretations agencies with of other charged federal executing legislation dealing discrimination, with sex applica with the legislative history ble not, of Title however, VII. did completely We set naught weight given guideline. to be the 1972 429 S., at Griggs Co., Cf. 424, Duke Power 401 U. S. portion guideline of prohibits the 1972 which practice under fully past interpretations
attack here is consistent with of Title VII See, g., EEOC, EEOC. e. Report, First Annual H. R. 90th Doc. No. Cong., Sess., (1967); EEOC, 1st First Digest Legal Annual Interpre- tations, July 1966, p. 1965-July (Opinion (June Letter 218-66 GC 1966)); (1973) CCH EEOC Decisions n. 1 (Dec. 16, 1969); ¶6084 CCH (1973) (Dec. 4, 1970). EEOC Decisions pointed Nor ¶ have we been opinions conflicting of other agencies federal responsible for regulating the field of sex portion discrimination. This of the 1972 petitioner's
Recognition facially sys neutral deprive tem does women employment opportunities (a) their (2) sex does not end inquiry § under company’s adoption Title VII. If a business necessitates the particular prohibit policies, Title VII does company absence, leaves applying policies these all even including pregnancy leaves; Title VII violated is not *7 though policies may employees. Griggs, the female burden supra, 431; Rawlinson, 331-332, Dothard 433 v. U. S. Court in this (1977). n. But we with the District agree any necessity proof case that no of since there was business court was policies adduced with to the respect question, Supp., at 771. no justification entitled to exists.” F. “assume Court, presented II On the to the District basis of the evidence pregnant policy of not sick-leave awarding disability- the indistinguishable from employees legally Gilbert, peti upheld in Gilbert. program As insurance of time periods for limited compensates tioner non- work because of a during the must miss which Gilbert, compensa the disability. job-related illness or As absences. We pregnancy-related not extended to tion kind are not of emphasized in Gilbert that exclusions this of pregnancy se of Title VII: exclusion per violations “[A]n the one weight than was to more considered guideline is therefore entitled Co., S. Skidmore & 323 U. Gilbert. Swift denying accumulated Indeed, petitioner’s of might easily with its conflict employees returning peti efficiency particular, as a result interests. In economic and own experienced policy, employees are favored over inexperienced tioner's petitioner lengthy spent periods with employees; employees who have displaced by loyal company might to the expected to be more may motivated relatively be less employees. Female also new difficulty of jobs greater efficiently in their perform advancing through the firm. disability-benefits
from'a plan providing general coverage is gender-based not a discrimination at all.” 429 S., at 136. Only if plaintiff through presentation evidence can demonstrate that exclusion from the com “ pensated conditions is a 'pretex[t] designed mere to effect an invidious discrimination against the members one sex or the ” other’ does Title VII apply. Ibid.
In indicating evidence had been introduced women drew substantially greater sums than did men from General disability-insurance Electric’s though even program, it excluded pregnancy. Id., at 9 and 10. But nn. 130-131, holding our did depend on evidence. The District Court in expressly Gilbert declined present to find “that actuarial coverage value equal was as between men and Id., women.” upheld disability program 131. We ground “that neither there nor finding, was there [was] support evidence which would the finan finding, cial benefits of Plan against airy 'worked discriminate *8 group definable or aggregate class terms risk protec ” by tion group program.’ Id., derived or class from the 138. by facially When confronted a plan, neutral whose only fault underinclusiveness, the burden plaintiff is on the plan to show that discriminates on the basis of sex violation of VII. Paper Moody, Title Albemarle Co. v. 422 (1975); Douglas Corp. Green, 425 McDonnell S. v. (1973). 411 U. S. again need not by
We decide when whether, confronted facially neutral necessary prove it is plan, intent to estab- prima lish a facie violation 703 (a)(1). §of McDonnell Cf. Douglas Corp., supra, Griggs at 802-806. held that a viola- (a) (2) by tion of can be proof § established aof discriminatory effect. perceive difficult to how exclu- But plan sion of from a insurance or sick- compensation program “would deprive individual of or employment opportunities” adversely “otherwise his affect employee” (a) status in violation of § merely direct effect of the exclusion is loss income for period employee is not work; such an exclusion no has upon direct effect opportunities job either or employment status. Gilbert, supra, brought Plaintiff's attack in was under 703 (a) (1), appear proper § which would section of to be Title VII under which analyze questions of sick-leave or disability payments.
Respondent prove discriminatory failed to effect with even a respect petitioner's concedes plan. candidly sick-leave She in her brief before this Court Sick Leave “petitioner’s plan benefit in and is, purposes, for all intents and itself, Plan Weekly the same as the Sickness and Accident Insurance in Gilbert” “if sick examined and that the exclusion of only respondent was the manner in which had been treated differently by Gilbert would control.” Brief petitioner, Respondent Respondent, however, contends that because respecting Title petitioner by has violated VII its from the sick-leave seniority following pregnancy leave, return must also pay differentiation fall. premise.
But this conclusion no means follows aspects of abandoned attacks on other Respondent herself rulings adverse to employment policies following position scarcely consistent Court, her the District Geduldig both in present recognized one. We of course her Aiello, in Gilbert the facial (1974), U. S. analysis would not end plan of an benefit neutrality “ involving 'distinctions if it could be shown that discrimina- to effect an invidious pretexts designed mere sex or other ....'” the members one against tion *9 Gilbert, Petitioner’s preg- at 135. refusal to allow S.,U. seniority may their accumulated employees to retain nant peti- of in whether by deciding relevant the trier fact deemed But plan pretext. was such a it most cer- sick-leave tioner’s by finding such a a trier to tainly require fact, does not say nothing of the making of such a finding original as an matter by this Court.
The District Court sitting as a trier of
made no such
fact
finding in this case, and we are not advised whether it was
requested to or not. The decision
Appeals
of the Court of
was not based on
such
but
instead embodied
finding,
generally the same line of reasoning
of Appeals
Court
for the Fourth Circuit
in its
in
opinion
followed
Gilbert Gen-
Co.,
eral Electric
Affirmed Mr. Justice Powell, whom Mr. Justice Brennan Marshall and Mr. Justice join, concurring result and concurring part. I join opinion affirming Part the deci- Court Appeals denying
sion of the Court of petitioner’s policy concurring opinion suggests Our in his Brother that we also Powell respondent theory us, viz., develop remand to allow not articulated to plan monetarily sick-leave worth more men than required suggests expansive women. He remand is respondent formulated time her case “had no reason to make the she required showing gender-based Post, discrimination Gilbert.” at 148. Respondent’s July complaint 1, 1974; was filed in the District Court on pretrial setting plaintiff’s theory order was entered that court forth the theory August 28, 1974; the defendant’s and the Court’s District judgment and order for were filed on November 4 and memorandum 20, 1974, respectively. November Appeals The first the Court of cases Liberty Co., which our Brother Powell refers to is Wetzel v. Mutual Ins. February F. 2d which was decided on (CA3), 1975. See *10 female purposes seniority job-bidding for accumulated VII.1 Title leave violates returning pregnancy legal II, status the result in Part also concur in denying accumulated policy of petitioner’s of under Title VII while on sick-pay benefits to female General light of development requires further factual sepa I write Gilbert, Electric Co. U. S. v. constricted to have appears because the Court rately, however, by holding on remand unnecessarily scope inquiry her burden to meet has failed respondent prematurely that sick-leave petitioner’s that prima facie case establishing a was tried VII. This case discriminatory Title under policy is Appeals the Court and reviewed District Court upheld court appellate in Gilbert. The our before decision uniform view the then claim in accord her treated plan Appeals Courts Electric Co. v. dissenting in General opinion of Mr. BreNNAN Justice filed a respondent only Not the time that S., at 146. 429 U. decision, rendered its the District Court complaint, the time but at decided, very recently (1974), Geduldig Aiello, had been 417 U. S. question respondent’s behalf is that the on that can be said and the most cognate analysis that case would be carried over of whether the on this open opinion in Gilbert one. Our of Title VII was sections rightly be speaks itself; think it can issues, course, we do not to exist change understood the law as it was drastic a characterized as so she reopen on remand that respondent to raise or issues in 1974 as to enable assume principles able to do. We be otherwise would not under settled latter apply these District Court will Appeals and the that the Court of remand. may open respondent on deciding claims be principles in what face, seniority policy, its however, add, 1 I would and female of male neutral in its treatment “appea[r] does “only below, Court noted employees.” Ante, at 140. As the District bidding thereby job required to leave and lose pregnant women are take disabili required non-work related leave is in other no mandatory 1974). (MD Supp. 765, Tenn. This F. ties . . . .” 384 granted to maternity of absence not “identical to the formal leave leave is edu they may pursue additional female, employees, male or in order that Ante, cation.” at 140 n. differently se viola- per from other disabilities was *11 of had no reason to respondent
tive Title VII.2 Since gender-based required make the of discrimination showing by Gilbert, vacating I the practice would follow our usual of court to judgment remanding permit below and the lower light intervening in of our ruling reconsider its sick-leave decision. which simply
The issue not one of burden proof, is Paper Albemarle properly plaintiff, rests the Title VII Douglas 422 McDonnell Moody, (1975); Co. U. S. 425 405, v. Green, 411 “full oppor- 802 but of a Corp. 792, (1973), v. U. S. Nelson, facts,” relevant Harris v. tunity presentation for the (1969). meandering 394 298 Given the course U. S. adjudication Title VII has final resolution a lawsuit taken, possible parties Court has not because the often been ultimately an proceeded lower on was or the courts what theory theory of case. the mistaken erroneous Where pre-existing understanding law, on premised argu- where the record as constituted does not foreclose the remand necessary by prefer our ruling, ments made on controversy pass the lower courts to permit light of whatever additional evidence new contentions necessary. deemed Moody, supra, the Paper in Albemarle Co. v. example,
For conclusion Appeals’ the Court "that approved Court testing proved job not of its had relatedness employer permit immediate issuance of an but declined program, Electric Co. v. cited in General U. S. See cases J., dissenting). (1976) (Brennan, Geduldig Aiello, v. held that the rationale articulated
Gilbert equal challenge protection grounds, (1974), involving a also S. respect pregnancy- treatment Title VII claim with to the applied to a Geduldig plans. See 429 U. at 133-136. Since itself was in benefit unreasonably issue, Appeals failed the Title the Courts of silent on VII Geduldig anticipate the extent to which the rationale would be deemed Washington statutory Davis, 426 in the context. See v. U. S. applicable 229, 246-248
injunction against all use of testing in the plant.
Court
thought
that a remand to the District Court was indicated in
part appropriate
“[t]he
standard of proof
job
relatedness has not been clarified until today,”
plain-
and the
tiffs
today
“have not until
been specifically apprised of their
opportunity
present
evidence that even validated tests
might be a
'pretext’
discrimination in
light
alternative
procedures
selection
available to
Company.”
422 U. S.,
Teamsters States,
United
Similarly,
Here, respondent has theory abandoned the that enabled her prevail in the District Court and the Court Appeals. urges Instead, she that her case is distinguishable from Gilbert:
“Respondent submits that because the exclusion of only many ways sick one the is which female 3The Court also declined to concerning “evaluate abstract claims equitable statutory rights balance that should be struck between the rights and the employees,” preferring of victims contractual of nonvictim lodge task, instance, in the first with the trial court which would problem light be best able to deal with the developed facts at hearings remand. 431 U. 376. are differ- experience pregnancy who treated in Gilbert not con- ently by holding petitioner, manner trolling. Upon of the overall examination pregnancy are experience which female who petitioner’s plain by it becomes petitioner, treated mere under- much more than the policies pervasive are Plan Insurance and Accident inclusiveness of Sickness Respondent Brief for in Gilbert.” by identified characteristics are distinguishing
At least two only preg- Court, District First, as found respondent. and are to take a leave of absence required nant women of nonoccu- while all cases sick-leave benefits denied 384 F. available. benefits are disability sick-leave pational the sick- (MD 1974). Second, Tenn. Supp. 765, 767, discriminatory necessarily related on manda- pregnant women job-bidding denial of policies both flow maternity leave, tory presumably longer is no in active premise female pregnant. when she becomes service fully articulated, she theory is not
Although respondent’s contention, required have been plausible one presents stipulated evi until Gilbert not foreclosed raised 130-131, n. record, S., see dence *13 of the lower see findings courts, or concurrent 10, n. Heights Metropolitan Housing Corp., Dev. Arlington It on re is not inconceivable that 252, S. to the combined respondent will be able show that mand policy4 petitioner’s mandatory maternity-leave operation majority places respondent’s appeal to some reliance on failure The petitioner’s ruling which found man part from the District Court’s Ante, datory lawful under Title VII. 138 n. and leave text, however, petitioner’s stated in the maintenance 145. For reasons entirely mandatory maternity-leave lawful, may policy, if have a even question bearing sick-pay policy “is in fact more on the whether worth women,” S., 429 U. men than 138. denial of accumulated sick-pay yielded benefits signifi- cantly compensation less net for petitioner’s female than for the employees. class of male A number former, but not the latter, endured forced absence from work sick pay compensation. without or parties stipu- lated that July 2, between August 27, 1974, peti- placed tioner had 12 employees on pregnancy leave, and that some of these were periods on for of two or months more. App. It is possible these women had exhausted their sick-pay not benefits they at the time compelled were to take maternity leave, and that the denial sick period of absence resulted in a loss relative compensation of net female work force. Peti- tioner’s male on employees, the other hand, subject are not mandatory leave policy, eligible and are compen- to receive sation in some form for period of absence from work due disability. to sickness or
In short, I would not foreclose the possibility that the facts developed as support remand will a finding that “the package is in fact worth more to men than to women.” Gilbert, supra, at 138. If such a made, were finding respondent’s view case not barred Gilbert.5 In that case, the Court related: “The District Court noted evi dence introduced during the trial, good deal of it stipulated, concerning the relative cost to General Electric providing under benefits the Plan male and female employees, all that, which indicated pregnancy-related ex disabilities cluded, the cost of Plan to per General Electric female least was at as high as, substantially if higher than, per the cost employee.” male 429 U. (foot at 130 omitted). *14 present Gilbert no bar. will
by though large, an at this amount time undeter- which, Id., While Supp., minable.’ 375 at 378.” at 131. F. explicit finding that District Court declined make coverage equal was between men and actuarial value of the quantum may referring simply been to the have women, a “business proof necessary to establish specificity Co., Electric necessity” Gilbert v. General defense. See In in 1974). any event, (ED Supp. 367, 382-383 F. Va. precluding evidence record as Gilbert this Court viewed the “compensation” in prima showing of discrimination a facie probative contrary (a)(1). “Whatever the ultimate §to before the District Court value of the evidence introduced that subject very least it tended to' illustrate , this at the ... Plan did in by operate, of risks covered not the selection S., 429 U. at 137-138. against to discriminate women.” fact, Gilbert, there no basis in was developed As the record had a remand. finding precluding in this case as a do view record not principles in within the compensation of discrimination Gilbert,6 I simply sick-pay remand in enunciated holding point appears to read Gilbert as opinion Court’s one (a) (1) must plaintiff Title in a case demonstrate that a VII § compensated a mere conditions is pregnancy from “exclusion of Ante, opinion, in the Court at 144. Later its states ‘pretex[t].’” facially “whether, confronted neutral decide when need not we prima violation necessary facie prove intent establish plan, it 1, supra, I in assume that Ibid. As n. cannot (a)(1).” noted of §703 Moreover, facially seniority policy in neutral. case is ambiguity language in the in see may be although there some Blackmun, concurring Mr. Justice Stewart Mr. Justice opinions of grounded primarily in that case as our decision I viewed 429 U. required compensation in emphasized that no discrimination fact on the Indeed, reading fair of the evidence (a) (1) shown. had been 703§ compensation of women terms the total demonstrated Gilbert may I do disability-benefit exceeded that of men. plans well have every or need be exactitude can shown suggest that mathematical § compensation equality comparable work (a) (1) But essential case. *15 proceedings issue for further light our decision case. concurring judgment.
Mr. Justice Stevens, policies employ Petitioner enforces two that treat pregnant ees favorably temporary less who than incur a disability. First, are they during denied benefits their they absence from and thereafter; second, work denied sick their holds during absence. The Court former I is unlawful whereas the latter is lawful. concur I in the Court’s judgment, but because believe that its explanation of policies the legal distinction between the two may engender some confusion must make among those who on compliance day-to-day decisions a basis, advance a separate, and reconciling rather the two pragmatic, basis parts of the decision with each other Electric General Gilbert, Co. v. S.U. is general problem company policy
The to decide when a which burden special attaches a to the risk of absenteeism by pregnancy prima caused is a statutory facie violation of the prohibition against sex The “always,” discrimination. answer plainly which I had thought quite correct,1 by is foreclosed in Gilbert. The seem holding answer “never” would Court’s view, (a)(1). my proof heart of In is of discrimination in §703 prima respect establish facie violation. analysis company’s relating “An of the effect of a to absenteeism rules only appropriate criteria, rules would be if those referred to neutral such voluntary perhaps involuntary, particu an absence or or whether was costly. however, larly case, This does not involve rules of that kind. “Rather, places the rule at the risk absence issue caused By in a class itself. such a discriminates account definition, rule sex; capacity pregnant primarily is become which differentiates analysis The the female the male. is the whether the rule relates same acceptability hiring, promotion, absence, of an excuse for or-an plan.” exclusion from insurance General Electric Co. v. J., dissenting). 161-162 (Stevens, S.U. against view that a discrimination by be dictated Court’s 2 at all.” discrimination gender-based “not a pregnancy is the correct answer made it however, clear has,
Court frankly unam which plan though “sometimes.” Even “facially neutral,” against pregnancy discriminates biguously *16 “discriminatory it unlawful if it has a will find the Court 3 this discrim question, identify is how then, effect.” The inatory effect. The the Court. suggested by possible
Two answers benefit between a rely (a) on the difference Court seems (a) 703 and (b) (2) § the difference between burden, and a my of these differences are (a)(1). judgment, both 703§ In respond- I the effect of the illusory.4 with the Court that agree 2 supra, preg Gilbert, held that "an exclusion of In at the Court coverage disability-benefits plan providing general is nancy not a from a Consistently holding, gender-based the at all.” that discrimination today a "decision not to treat as a disease or states that Court disability seniority purposes retention is not on its face a discrimina tory policy.” Ante, at 140. 3 Ante, ibid. J., 141; concurring); 146 429 U. (Stewart, part). J., concurring in (BlackmuN, 4 provide meaningful benefits and cannot Differences between burdens since, by always hypothesis, the favored is test of discrimination class equally grant and the disfavored class is burdened. The benefited conversely, class; is a which is not shared burdened benefit of sick a burden which benefited bear. the denial is class need not apparent ground equally The Court’s second is unsatisfac- distinction analysis tory. suggests seniority plan its The Court that is different (a) plan (2) VII, not because that was attacked under 703 of Title § (a)(1). Again, I I must confess that do not understand the relevance § (a)(1) that of this distinction. It true refers to "discrimination” §703 (a) (2) recognizes does not. But the Court this is not itself that § (a) significant (2) facially since a violation of 703 occurs when a neutral § “discriminatory Ante, added). policy (emphasis at 141 has effect.” (a) (1) may requirement suggests Court also contain a of intent § (a) (2). present suggestion, it Whatever the merits of that § apparent it not form the basis for differentiation between does subparagraphs case, expressly in this the two since the Court § Ante, at 144. refuses to decide issue. seniority plan ent’s is significantly different from that of the General Electric plan suggest but may Although be described way: difference unwilling Gilbert Court was to hold against that discrimination compared physical with other disabilities —is —as sex, may discrimination account of be true nevertheless against that discrimination pregnant pregnant or formerly compared with consti- —as —does tute sex discrimination. This may pragmatically distinction expressed in terms of whether the has employer which adversely beyond affects a woman term of her pregnancy leave.
Although opinion “facially Gilbert characterizes as company neutral” a policy which differentiates between an absence by illness, caused pregnancy and caused absence the factual context of Gilbert limits the of that reach broad *17 characterization. Under reasoning, the Court’s the plan in Gilbert did employees against pregnant discriminate or formerly pregnant they while for working were If company. the employee, pregnant an whether or non- pregnant, the he or measles, contracted she would receive disability benefits; employee moreover, returning an from maternity also receive those benefits. On the hand, pregnancy, other or occurring an illness while absent on maternity leave, During was not covered.5 that of period maternity leave, pregnant the woman was cut off temporarily by company’s plan. the benefits extended the At all times, the woman was treated the same as other plan’s of her eligibility terms the benefits. Although See 429 U. n. I greatest the have difficulty holding with permissible the Court’s in Gilbert that it was coverage during maternity leave, an suppose refuse illness contracted may aspect explained by of Gilbert be the this notion that illness occurring though time treated preg that is as were attributable nancy, and therefore is embraced area permissible within the discrimina against pregnancy. tion markedly has a Company’s seniority plan
The this case formerly attempting work, different In to return to the effect. deprived previously woman is of all accumulated pregnant seniority. the policy The affects both her to re-enter ability compensation The work and her when she does return.6 force, Company permissible they argues these effects flow from initial to treat as an unexcused pregnancy its decision argument scope the absence. But this misconceives the protection such For afforded Gilbert to initial decisions. plan any consequences not attach the General Electric did beyond the of pregnancy period condition that extended the treat maternity employer leave. Gilbert allowed the pregnancy temporal gap employment leave as a in the full employer may status a woman. the During period, treat the the manner consistent with determina tion that illness.7 In pregnancy case, however, not an this impact the Company’s policy has an on the adverse employee’s status after pregnancy leave is terminated.
formerly person pregnant permanently disadvantaged compared to the rest of work force. since persons And the adversely exclusively policy affected constitute an Company’s female has class, plan an obvious discrimina tory effect.8
6Ante, at 138-139. employer's policy These two limitations —that the effect of period pregnancy limited to leave and that it be consistent determination is not to focus the illness —serve disparate pregnant effect than on or rather *18 formerly pregnant employees. Obviously, policies which attach a burden pregnancy pregnant formerly persons. to burden pregnant also or This consequence by only is Gilbert, allowed but to extent that the the focus of is, above, physical indicated on the condition rather than person. analysis approach by This is consistent with the taken lower courts post pregnancy-based recog -Gilbert discrimination, claims which have “nothing nized that foreclosing employment oppor Gilbert has to do with tunity.” Arentzen, (CA4 Cook 1977); 14 EPD ¶7544, p. 4702
Under this it is analysis, petitioner’s seniority clear that rule against discriminating formerly pregnant employees is invalid. It equally is clear that the denial of sick during maternity leave is consistent rationale, with the Gilbert since Com pany was free withhold those during period.9 benefits
As Gilbert, is evident from my dissent in I prefer would decide this simpler case on a preference rationale. Since that is foreclosed I concur judgment the Court’s that as understanding stands, the law now although some discrimination against pregnancy compared with other —as physical disabilities —is permissible, against discrimination pregnant or formerly pregnant employees is not. Inc.,
MacLennan Airlines, (Va. 1977) v. American Supp. 440 F. (addressing question when, ever, if employer require an can an employee to pregnancy leave). take pose This case the issue does may employer require when an employee to an take leave. Ante, at 138 n. 1. opinion, concurring In his that, suggest Mr. Justice Powell seems to employer’s disparate even when the pregnant treatment limited the period of the leave, may violate Title VII still company’s greater if the impact rule has a Ante, sex on one than another. analysis require at 151-152. If this does not overruling of Gilbert it applied caution, must be great probability since laws of invalidate an theory. inordinate number of rules on such a It is not clear beyond showing, to me what exactitude,” ante, “mathematical see at 152 n. necessary before this Court will classification, hold that a which is gender specific, definition Usually, discriminates on the basis of sex. disparities determining statistical aid a court in apparently whether -an is, effect, gender specific. neutral Here, classification course, or race unnecessary prove statistics would be point. agree events, In all presented with the Court that this issue is not case, to us in this accordingly proper scope concur the Court’s determination remand. notes The District Court also “found that pregnancy-related inclusion of disabilities within the scope of the Plan would 'increase G. E.’s [disability-benefits plan] costs theory open Also, if the left the Court’s remand is demonstrated,