Case Information
*1 March 4, 1974 Allen, Chairman Opinion No. H- 251 Committee on House Administration Re: Questions relating to
House of Representatives Austin, Texas 78711 the rights of women
employed by the State Dear Representative Allen: submitted at the request of the Committee on House
Your letter, Administration, asks a number of questions concerning maternity policies of the Legislature and other branches of the State Government.
Your first question asks:
“May the employment of a female state employee be legally terminated merely because she is pregnant?
If so, at what point in the pregnancy and under what conditions may the employment be terminated? ” .
We are unaware of any state-wide policy with reference to the termination of employment of women employees because of pregnancy, and we understand that departmental policies may vary from the extreme of no policy at all to the opposite pole of one department which advises that, until recently, its policy dictated that “at the end of six months of pregnancy a condition disability will be considered exist. ” The employee is allowed to exhaust accumulated vacation time, compensatory time and sick leave, all of which are usually insufficient cover the period before the child is born. After child birth, this department considers the employee available for rehire as soon as there edstr a vacancy.
The Appropriation Act for fiscal 1974 and 1975 (Laws 1973, 63rd ch. 659, p. 1786) in its Article V; 5 7(b) (p. 2200) recognizes preg- Leg., nancy and confinement as a baris for temporary leave, not complete termination. It provides:
p, 1170 *2 - .
. “Sick leave with pay may be taken when sickness, injury, or pregnancy and confinement prevent the employee’s performance of duty. . . .
II . . .
“Exceptions to the amount of sick leave an employee may take may be authorized by the adrnin- istrative head or heads of an agency of the State provided such exceptions are authorized on an individual basis after a review of the merits of such particular case. ”
Prior to 1972 it was the established policy of the Texas State Employ- ment Commission to require that pregnant employees take a maternity leave of absence without pay no later than two months before the expected Reinstatement at the end of the leave was not automatic. date of delivery. This policy was upheld as reasonable under the Equal Protection Clause of the Fourteenth Amendment in Schattman v. Texas Employment Commission, 459 F. 2d 32 (5th Cir. 1972), cert denied 409 U.S. 1107, the Court also holding that the sex discrimination provisions of Title VII of the Civil Rights Act of 1964 (42 USC $ $2003e, et seq.) did not apply to the Commission because it was an expressly excluded State agency.
Other Courts of Appeals ruled differently. See, for instance, Green b Waterford Board of Education, 473 F. 2d 629 i2d Cir., 1973); Buckley V. Coyle Public School System, 476 F. 2d 92 (10th Cir. 1973). This conflict prompted the United States Supreme Court to grant certiorari in two cases involving school board policies requiring separation of teachers either 5 months before birth, in one instance, or 4 months before in the other. 42 LW 4186 (Jan. 21,
Cleveland Board of Education v. LaFleur, - u. s.-, 1974).
The Court, in the majority opinion by Justice Stewart, stated the question before it as follows:
“This Court has long recognized that freedom of paraonal choice in matters of marriage and family life is one of the liberties protected by the Due Pro- cess Clause of the Fourteenth Amendment. Roe v.
Wade, 410 U.S. 113; Loving Y. Virginia, 388 U.S. 1.
12; Griswold v. Connecticut, 381 U.S. 479; Pierce v. Society of Sisters2 268 U.S. 510; Meyer V. Nebraska, 262 U.S. 390. See also Prince v. Massachusetts, 321 U.S. 158; Skinner v. Oklahoma, 316 U.S. 535. As we noted in Eisenstadt v. Baird, 405 U.S. 438,453, there is a right ‘to be free from unwarranted governmental into matters 80 fundamentally intrusion affecting a person as the decision whether to bear or beget a child.’
“By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity can constitute a heavy burden on the leave regulations exercise of these protected freedoms. Because public school maternity leave rules directly affect ‘one of the basic civil rights man, ’ Skinner v. Oklahoma, rupra, at 541, the Due Process Clause of the Fourteenth Amendment requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher’s constitutional liberty. The question before us in these cases is whether the interests advanced in support of the rules of the Cleveland and Chesterfield County School Boards can justify the particular procedure they have adopted. ” (42 LW at 4189) (emphasis added) It concluded that the mandatory “cut-off” dates had no rational rela- tionship to any valid state interests of continuity of teaching since, in some instancea, it could have the opposite effect. As the goal of maintaining the Court pointed to the fact that the healthy teachers in the classroom, medical witnesses agreed unanimously that the ability of any one pregnant woman to continue at work past any fixed in her pregnancy is very time “Thus, the conclusive presumption embodied much an individual matter. . . ie neither Inecessarily nor universally true, ’ and is in these rules. violative of the Due Process Clause.” (42 LW at 4190)
., Allen, page 4 (I-I-251)
The Court’8 decision, however, cannot be read as condemning out of hand all rules requiring separation of an employee at a certain, fixed time before delivery. the Court said: In a footnote to its holding,
“This is not to say that the only means for pro- viding appropriate protection for the rights preg- nant teachers ir an individualized determination in each case and in every circumstance. We are not dealing in these cases with maternity leave kegula- tione requiring a termination of employment at some firm date during the last few weeks of pregnancy. We therefore have no occarion to decide whether such regulations might be justif ied by considerations not presented in these records- for example, widespread medical coneenaus about the ‘disabling’ effect of pregnancy on a teacher’s job performance during these latter daye., or evidence showing that such firm cut- offs were the only rearonable method of avoiding the possibility of labor beginning wtile some teacher was in the classroom, or proof that adequate substitutes could not be procured without at leant some minimal lead timeand certainty as to the dates upon which their employment was to begin. ” (footnote 13, 42 LW at 4191) As to when an employee may return work after delivery, the Court in h Fleur struck down as unconstitutionally arbitrary and irra- Honal a requirement of the Cleveland Board of Education that return could not be effected until at least three months after delivery. The Court upheld the requirement of a medical certificate.
The facts involved in La Four took place prior to the 1972 amend- ments to Title VII of the Civil Rights Act making those provisions appli- cable, with certain exceptions, to state agencies and educational inrtitu- tionr. The Court recognized that development lessened the impact of its decision which was rendered on constitutional rather than statutory grounds (footnote 8, 42 LW kt 4188).
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The Xonorable Allen, page 5
The Civil Rightr Act of 1964 in itr $703 (42 USC, ! 2000e-2) pro- vider, in part:
“(a) It shall be an unlawful employment practice for an employer -
“(I) to fail or refuse to hire or to discharge or otherwise any individual, to discriminate against any individual with respect to hia compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
“(2) to limit, segregate, or classify his em- ployees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an em- ployee, because of such individual’8 race, color, religion, sex, or national origin. ”
Pursuant to the authority granted it in 5 713(b) of the Act (42 USC, $2000e-12) the Equal Employment Opportunity Commission has issued as follows guidelines (29 CFR 5 1604.10):
“$ 1604. 10 Employment policies relating to pregnancy
and childbirth. “(a) A written or unwritten employment policy or practice which excludes from employment appli- cants or employeea hecau8e of pregnancy is in prima facie violation of Title VII.
“(b) Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employ- ment. Written and unwritten employment policies and *6 The Honorable Allen, page 6 (H-251) such a8 the commence-
practices involving mattera ment and duration of leave, the availability of ex- tensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary diaability insurance or rick leave plan, formal or informal, shall be applied or childbirth disability due to pregnancy on the same tarma and condition6 aa they are applied to other disabilities.
“(c) Where the termination of an employee who is temporarily disabled is caused by an employ- ment policy under which insufficient or no leave ia available, such a termination violates the Act if it has a disparate impact on employees ofone sex and is not justified by business necessity. ”
The answer your first quertion, therefore, would appear to be that employment a female state employee may not be legally terminated merely becaure if by “terminate” you mean a complete she ia pregnant, ending. On the other hand, an agency may adopt a policy, heed on reasonable factual findings. requiring a pregnant woman to take a leave of absence when her health would be endangered or her job performance would be impaired by her remaining on the job. And other reasonable regulations, such aa the requirement of notice, may be required, provided they are required of G temporarily dirabled per8or.s.
The decision as to when that should be will have to be determined on a case-by-case basis unless there is sufficient unanimity among the could be medical community that a “reasonable” date prior to delivery agreed upon.
Your recond question asks:
“If your answer to the first quertion is yea, and a female employee is dismissed because of her pregnancy:
“a. What are her rights with regard to accrued vacation and sick leave? *7 Joe Allen, page 7
“b. What are her rights with regard future employment with the state, especially with the agency or office where she was previously
employed?
“C. If she is rubrequently employed by the same or another state agency or office, what rights would she have with regard to job clasri- fication, rate of compensation, retirement bene- fits, and other job benefits? ”
The answer to these is simply that pregnancy and childbirth may not from any other sort of temporary disability. be treated as different A pregnant woman, upon taking leave of absence to have her child, should if it is the be allowed to exhaust her vacation time and sick leave and, leave in the event of other types of tempo- agency’s policy to extend sick rary disability, she should be entitled to similar consideration. in the same or
The pregnant woman’s right to future employment any other rtate agency, her righta job clarrification, compensation, benefits, and other retirement job benefits should be determined exactly as if her leave were occasioned by an injury or illness. third question arkr:
Your
“If your answer to the first quertion is no; and a female employee is dismiraed because of preg- nancy:
“a. What are her rights with regard to rein- damagea statement, , am other relief? employed by the
“b. If she is subsequently rame or another state agency or office, what rights would she have with regard to job classification, rate compenration, retirement benefits, and other job benefita? ”
- (Ii-2s) An employee who haur been separated becauro from rtate employment policy, will be entitled to cerbia reme- of an unconrtitutional employment rule may be rtated, diea depending upon the facts of each care. No definite but remedies might include reinrtatement with or without back pay, back and/or other remedies made pay without reinstatement, legally appropriate of a given care. by the circumatancer
Your fourth quertion ir:
“May etatc agencies and officea grant leaves of absence without any pay to pregnant female employees, and at the end of such leave, reinrtate ruch employees in the same job claraification and at the #ame rate of compensation that they previously held? ” We think our answers to the firat and second quertions answer your fourth. Basically, the pregnant woman rhould be accorded the game rightr given other employees abrent from work for temporary disability.
SUMMARY 1. Employment of a state employee may not be terminated merely because she is pregnant. that it ir
2. Where it ir factually ertablished unhealthy for the woman or impairs her job for a preg- oant woman to continue working, rhe may be required to take a leave of absence. The determination is be made on an individual baais unless there ir unanimity among medical expert8 a# to a “reaeonable” date.
3. AB to the termr of a pregnant woman’8 leave of abrence and her rights to future employment, her rightr job claarlflcation, compenration and retire- * they are to be determined ment, on the 8ame barir as are those of any temporarily disabled employee.
Attorney General Texas *9 APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee