Appendix — General Elec. Co. v. Gilbert

| Supreme Court, U. &

FILED

| RK |

MOHASL RODAK, JR., CLE

hricoatnsnemeannauncdabsenntinteenmenianetil

Supreme Court of the Anited States

OCTOBER TERM, 1974

No. 74-1589

GENERAL ELECTRIC COMPANY,

Petitioner,

v.

MARTHA V. GILBERT,

INTERNATIONAL UNION OF ELECTRICAL, RADIO AND

MACHINE WORKERS, AFL-CIO, CLC, et al,

Respondents.

No. 74-1590

MARTHA V. GILBERT,

INTERNATIONAL UNION OF ELECTRICAL, RADIO AND

MACHINE WORKERS, AFL-CIOCL(C, et al,

Petitioners,

v.

GENERAL ELECTRIC COMPANY,

Respondent.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

eee sass. TIT

PETITIONS FOR CERTIORARI FILED JUNE 17, 1975

CERTIORARI GRANTED OCTOBER 6, 1975

(i)

TABLE OF CONTENTS

VOLUME I

Witnesses (Continued):

David C. Forrest, M.D. (Continued)

Redirect ea

Recross .

Catherine East

Direct

Cross .

Emma Furch

Direct

Mary Williams

Direct

Cross .

Barbara Hall

Direct

Doris Wiley

Direct

Robert Gordon Delano

Direct

Cross .

Sherrie Elizabeth O’Steen

Direct

Cross .

Curriculum Vitae - Andre E. Hellegers, M.D. .

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452

(ii)

Andre E. Hellegers

Direct

Cross .

Redirect

Recross .

Brief Resume - Paul H. Jackson .

Paul H. Jackson

Direct

Cross .

Redirect

Recross .

Harvey Helman

Direct

Cross .

Redirect

Thomas F. Hilbert, Jr.

Direct

C4oss_ .

Redirect

Charles T. Duncan

Direct

Cross .

Curriculum Vitae - George Dewey Wilbanks, Jr.

George Dewey Wilbanks, Jr.

Direct eo.

Cross .

Redirect

GE Exhibit No. !

GE Exhibit No. 4

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RS OBS Be Ran etre en tte tare = oles hag Ua NE te Te ere i es eh ae

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REDIRECT EXAMINATION

BY MS. WEYAND:

Q. I believe you said it was statistically true that the

complications arising from the pill are less in number than

the women who get pregnant. You emphasized —

MR. BATTLE: Excuse me, Your Honor, I don’t think

that was either the answer or the question.

MS. WEYAND: All right.

MR. BATTLE: Women that get pregnant are less the

number of complications.

BY MS. WEYAND:

Q. Less the number of complications of pregnancy.

You emphasized the word “statistically.” Am I correct

in inferring that you thought there was something else to

be said besides merely statistics on that subject?

A. I think that just as a matter of clarification that a

complication that results from the taking of the pill and

a complication that results from being pregnant are in

themselves 100 percent important to that particular indivi-

dual.

Statistically they compare the number of complications

with dire circumstances related to the taking of the pill

with those complications of pregnancy with dire circum-

stances. When you compare it in that light the incidence

is much lower among the girls who are taking the pills, as

I understand it. And this is the argument that is proposed

by these people.

Q. Do you think there are substantial consequences that

are not classified as dire consequences? A. I think in

most instances except where there has been documented

statistical or evaluation of a particular segment of people

who have taken these agents, there are many of these so-

called complications are missed that are not recorded and

they are not reportable.

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The patient who has been taking the pill and suddenly

dies as a result of a thrombo-embolism, I think this is

dramatic, it becomes reportable, and usually a coroner’s

case. And these get entered into the statistics.

The patient who develops positive birth control pills

suppression, ovulation suppression syndrome, I don’t know

that we are reporting these.

There are people who are interested in them that are

investigating this phenomena, these complications.

We are slowly picking up more and more of these ad-

verse effects. And if you are interested in this subject I

think you tend to read more on this subject, and I am

interested in the complications. That is not to imply that

we do not give the pill, and we still use it with medical

indications and we offer contraceptive advice, we usually

give the patient her opportunity to select what she and

her husband would like to use.

Q. I take it that 100 percent of your pregnant patients

have a period of hospitalization, do they not? A. We

use the term pregnancy here and we keep talking about

the normal pregnancy, but there are abnormal pregnancies.

Q. They all go to the hospital when they deliver, you

have said? A. If we are talking about a normal I

would say that 100 percent of these patients go to the

hospital. Even if they delivered in a rescue squad, they

still go to the delivery table and are examined and kept

there for three or four days, yes.

Q. So when you said 90 to 95 purcent of the pregnant

women suffer no disease, you did not go back to your

definition of disease, did you? A. No.

If I relate to discomfort aside from the normal state of

well-being I probably did not relate that.

Q. 100 percent of them have suffered discomfort, did

they not? A. I would say —

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MR. BATTLE: I have tried not to object, but that is

awfully leading.

THE COURT: She can lead him.

MR. BATTLE: It is the testimony.

THE COURT: If she-can lead him he deserves it. I

don’t think she will4tead him very far.

THE WiTNESS: If you are referring to the fact that

they required anesthetic for the time of ‘the delivery to

relieve the pain and discomfort, the actual delivery process

and the episiotomy, or they required medication and/or

anesthetic during their labor, then the answer would be

a

“

MS. WEYAND: That is all the questions I have.

THE COURT: Dr. Forrest, I want to be sure I have

this straight. I am not sure of the materiality.

Did I understand you to say that mofethan 50 percent

of your patients, that is of your working patients, stayed

home after the first pregnancy and don’t return to work?

I know you said it because I wrote it down. Did you

mean that?

THE WITNESS: No — here again, Judge, I am trying

to say that of the patients that I see, and incidentally I

have not made a real effort to ask patients, “Do you

work, not work, and so forth,” the impressions that we

get is through conversations with the patients when they

say, “I can’t get here because they don’t want me to

come, or I lose too much time at the office.” What I am

trying to say is of the patients that we see with their first

pegnancy, perhaps 50 to 60 percent of these patients are

working.

THE COURT: I understood that.

THE WITNESS: Now, we see other patients who come

in with their second pregnancy orethey are old patients

who come back three or four years later. And I think

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that there is — that it reduces to probably as low as 25

percent.

I am not saying that the patient that I delivered 50

percent of them never go back to work.

THE COURT: That is what I wanted to know.

THE WITNESS: No, because I don’t know this.

THE COURT: All right.

Did the Court’s questions prompt any further inquiries

from counsel?

MR. BATTLE: Just in regard to those questions, Doctor.

THE COURT: It must have been more material that I

had given it credit for, Mr. Battle, but you go ahead.

MR. BATTLE: In that case I have no further questions.

RECROSS EXAMINATION

BY MR. BATTLE:

Q. Seriously, you do, in discussing the pre-natal treat-

ment and attention, typically find out whether the lady

works or whether she is a housewife, or what the nature

of her activities are, don’t you? Isn’t this part of the his-

tory that you want to have in prescribing? A. I wish-

ed I could tell you, Mr. Battle, that I inquire of that spe-

cifically. I do not.

If it comes to my attention, but I am not really hep

on it. I don’t go out and say, “Do you work?”

Q. Well, the thing that sort of grabs me is the fact

that, as I take it, for 20 years or so, and I knew this to

be true before you gave the facts, you see thousands of

women a year and deiiver thousands of babies a year.

A. Not thousands.

Q. No? A. Not thousands a year, sir.

Q. Iam sorry. Hundreds. A. I would accept

hundreds. ;

Q. And you said on direct examination, and it wasn’t

particularly surprising to me, I just wanted to develop it

Peary Te ‘ibe

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somewhat, that of the first pregnancy you gathered about

50 or 60 percent were working women, that is your —

A. Yes.

Q. — impression, is it not? A. Yes.

Q. And over the years of experience I take it you were

using that experience, not just the last year, but over the

years of experience in the state of second pregnancy you

gathered by the same type of information that about 25

percent were working women.

Now, wouldn’t a fair inference be that more than 50

percent of your patients do not return to work after the

first child is born? A. I can’t answer that because she

may only have one child and return to work and I never

see her again.

I am comparing patients who come in for pregnancy

rather than a one family — pregnant one family. If you

asked me my general impression I would say that because

of the nature of our practice, which many of these people

who come, I say many, a considerable number of them

would come to us who have problems in becoming pregnant;

and I find out all of these things like do you work, where

do you work, and so forth because with these people I

want to know these things.

But for the average girl who drops in, or the person, I

don’t like to use that word “drops in,” but who comes in

and just going through the course of talking to her, it usually

will come out in her conversation, but I don’t specifically

say, “Do you work?”

Q. I see.

All right. That is all.

THE COURT: Miss Weyand.

MS. WEYAND: Nothing further.

THE COURT: You may step down.

Unless I hear an objection Dr. Forrest will be excused.

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Thank you, sir.

(The witness stood aside.)

* * * *

Feb. 23, 1973

CITIZENS’ ADVISORY COUNCIL OF

THE STATUS OF WOMEN

Room 1336, Department of Labor Building

Washington, D.C. 20210

Mrs. Catherine East has been executive secretary of the

Citizens’ Advisory Council on the Status of Women since

its establishment on November 1, 1963, by Executive Order

11126. The primary functions of the Council, whose mem-

bers are appointed by the President, is to study issues re-

lating to status of women and to recommend needed changes

to the President, Federal agencies, and other groups.

The Council has made recommendations on a variety of

subjects, including most recently the Equal Rights Amend-

ment, job-related maternity benefits, and Need For Studies

of Sex Discrimination in Public Schools. Earlier recom-

mendations to the Equal Employment Opportunity Com-

mission on the interpretation of Title VII were adopted by

the Commission and upheld by the courts.

as the chief executive officer Mrs. East has been responsi-

ble for providing staff assistance to the Council, including

agenda and speakers for meetings and responsibility for

preparation of staff papers and reports. For some studies

she has arranged for part-time details of experts from vari-

ous parts of the government. In other cases she has done

the research and prepared the staff papers for the Council.

She served as technical secretary for the Federal Employ-

ment Committee of the President’s Commission on the

Status of Women from March 1962 until November 1963,

with similar responsibilities for Federal employment only.

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In the Civil Service Commission where Mrs. East was em-

ployed in public presonnel management for the preceding

23 years, she was engaged primarily in general staff work,

researching various topics and preparing policy positions

for the Commissioners. She drafted laws, regulations, ex-

ecutive orders, bill reports, testimony, and instructions to

agencies to carry out Commission policies. Among the

wide variety of topics on which she worked were conflict

of interest laws, employment of military personnel in the

Federal service, and past and future relationship of the

Civil Service Commission to the President.

She played a major role in designing and implementing

changes in the Federal personnel management system re-

quired by World War II and the Korean war and post-war

readjustments.

She has been a speaker on legal, economic, and social status

of women before such groups as the American Management

Association Annual Personnel Conference, the Southern News-

paper Publishers Association Foundation Seminar for South-

ern journalists, Delaware Chamber of Commerce, the New

York State Psychological Association Conference on

Women in the Work Force, the National Conference of

Administrative Women in Education, the National Conven-

tion of the Intercollegiate Association of Women Students. She

was an expert witness in the case of NOW »y. Pittsburgh Press

and Cohen v. Chesterfield County School Board.

She testified before the Select Committee of the House of

Lords of the British Parliament on proposed legislation to

prohibit sex discrimination in employment and education.

During this trip she spoke on status of women in the U.S.

at conferences at the University of London, University of

South Wales, Glasgow City Council Chambers, British House

of Commons, and appeared on several BBC television shows.

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She testified on the Equal Rights Amendment before the

Judiciary Committees of the-House and Senate of the Leg-

islature of South Dakota and before the joint House-Senate

Judiciary Committee of the Legislature of Connecticut.

February 16, 1973

MATERIALS ON WHICH I WILL RELY

Recommendation on Job-Related Maternity Benefits of

Citizens’ Advisory Council on the Status of Women.

Report of the Subcommittee on Maternity Benefits to the

Interdepartmental Committee on the Status of Women,

November 1969.

Contract of the Department of Labor with Labor Local

12 signed December 18, 1970.

Survey of Use of Leave for Maternity Purposes in Employ-

ment Standards Administration, Department of Labor

(if completed in time).

“Childbirth and Child Rearing Leave: Job-Related Benefits,”

New York Law Forum, Vol. 17, No. 2, 1971.

Guidelines of States of Washington and Wisconsin.

Current Population Reports, Bureau of the Census, “Birth

Expectations and Fertility: June 1972,” Series P-20, No.

240, September 1972.

Personnel Management Policies and Practices, Report Bulle-

tin 25, June 6, 1972, Prentice-Hall.

Unpublished Data from Survey of Use of Sick Leave by

Federal Employees - 1961 leave year.

February 22, 1973

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* * * ° °

CATHERINE EAST was called as a witness by and on

behalf of the plaintiffs and, having been first duly sworn,

was examined and testified on her oath as follows:

THE COURT: If you would move those for a moment

so the marshal can put the table up.

THE WITNESS: Oh! Thank you. .

DIRECT EXAMINATION

BY MS. WEYAND:

Q. I show you the vitae of curricula which has been

filed.

THE COURT: Miss Weyand, stand behind the lectern,

please.

The marshal will pass papers to the witness.

THE WITNESS: Yes, I did.

BY MS. WEYAND:

Q. Did you prepare that?

Are there any changes necessary to bring it up to date?

A. Well, yes, for this purpose I suppose so.

I testified before several other state legislatures on the

Equal Rights Amendment, if that is significant.

THE COURT: Let me get the witness’ name. I am

sorry. I didn’t get it.

MS. WEYAND: I am sorry.

THE WITNESS: Catherine East.

THE COURT: Thank you, ma’am.

MS. WEYAND: She has filed a biographical sketch with

the Court, as you may recall, and I assume the same ques-

tion would apply here as to whether there is need to quali-

fy her further.

THE COURT: In what field are you qualifying the wit-

ness?

MS. WEYAND: As an expert in the field of socio-eco-

nomic effects of employment of women, the problems of

women in the social and economic field.

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THE COURT: Does anybody wish to examine the wit-

ness on her qualifications?

If not she is qualified.

MS. WEYAND: Thank you.

BY MS. WEYAND:

Q. What is your present position? A. I am Execu-

tive Secretary of the Citizens Advisory Council on the

Status of Women.

Q. What is the Citizens Advisory Council on the Status

of Women? A. It is an advisory group of 20 members

appointed by the President to advise the Federal Govern-

ment and private groups, and anybody that wants to listen,

on action that might be taken to improve the status of

women.

Q. Who are its members? A. 20 private citizens

appointed by the President who serve without pay and

serve without term of office.

Q. How long have you held your present position?

A. For 11 years.

Q. What are the duties of your position? A. My

duties are to help in preparing the agenda for the Coun-

cil and arranging for speakers, in preparing staff papers,

doing research on the topics they are concerned with, writ-

ing the minutes, speaking as requested on the status of

women to various groups and before public bodies.

Q. I believe you stated that there were some legislative

bodies before whom you have testified in addition to those

listed in your biographical sketch.

Would you state what those are? A. Yes. I testi-

fied before the West Virginia Legislature, a House Commit-

tee, House Judiciary Committee, and before the Illinois

Senate Judiciary Committee on the Equal Rights Amend-

ment.

ae ee

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Q. Have you testified before legislative bodies outside

the United States? A. Yes. I testified before a

Select Committee of the House of Lords on legislation to

prohibit discrimination because of sex in employment and

education in England.

Q. When did this testimony take place?

vember of 1972.

Q. Did the Citizens Advisory Council on the Status of

Women take any position with respect to disability bene-

fits for periods of absence from work due to childbirth

and complications of pregnancy? A. Yes.

The Council was quite interested in this topic.

The Council appointed by President Johnson had taken

it up in 1968. And at that point they recommended the

establishment of a Federal Temporary Disability Insurance

System that would provide for compensation for loss of

income for all employees who lost time because of tempo-

rary disabilities, including pregnancy.

When it came up again after President Nixon had appoint-

ed the present Council members and the Council heard wit-

nesses from an insurance company, from the Civil Service

Commission from the Equal Employment Opportunity Com-

mission, from the Office of Federal Contract Compliance,

and the Labor Department. I did some research for

them on practices in foreign countries and a little on what

was done in this country.

We found that there were a wide — I say we, I am speak-

ing of the Council for whom I was doing the staff work—

found a wide variety of practices. In the Federal Govern-

ment and in the Railroad Retirement Board, we found that

leave for childbirth was treated as a temporary disability

and the employees used their sick leave, vacation leave,

and leave without pay as necessary; and that they had re-

employment rights.

A. In No-

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We found that some other employers required women

to take leave without pay or to resign when they became

pregnant.

Some of them had to quit early in the pregnancy. They

were not permitted to use sick leave or personal leave or

vacation leave, whatever leave might be available, or didn’t

have temporary disability insurance coverage.

Most apparently had no reemployment rights except

preference for vacancies.

We were kind of surprised; it seemed some employers

almost designed their practices to force women to quit

work at the time they had children, and apprently some

of the other practices went back to the times when preg-

nancy was considered obscene and when all women were

expected to stay home and take care of their children.

It seemed to have been designed by upper middle-class

men who, you know, were trying to get all women, or

hoped or seemed to assume all women, could follow the

practices of their wives.

This appearance has since been confirmed by experiences

I have had.

I have spoken a great deal to businessmen, including the

American Management Association Personnel Conference,

and I always raised this topic when I did.

And several of the employers, these are industrial rela-

tion experts, they are not just anybody, Vice-Presidents for

Industrial Relations or Personnel Directors, have asked me

shouldn’t women be encouraged to stay home? Why

should you have policies that would permit them to come

back? I told them that was none of their business whether

the wife stayed home to take care of the children or not.

That was between the husband and the wife.

We found that five states had temporary disability insur-

ance laws. New Jersey, Rhode Island, New York, Cali-

fornia, and Hawaii.

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These laws provided income replacement for covered

employees while they were temporarily disabled.

At that time only New Jersey and Rhode Island cover-

ed pregnancy, and both had limitations.

Recently Hawaii has amended its law to cover periods

of disability because of pregnancy. And I think to some

extent because of the Council’s proposal and because of

the EEOC Guidelines.

And California’s exclusion of pregnancy from its law has

recently been declared invalid under ther 14th Amendment.

We found that four states, I guess, are or are going to

have to include pregnancy.

New York also has a bill before it to include pregnancy,

and the women’s groups up there are working hard to get

that exclusion repealed.

We found that European countries and Great Britain

generally have national social security systems that provide

income maintenance during temporary disabilities and in-

clude time off for childbirth and complications of pregnancy

as a part of the system.

We found in looking into why this wide variety of prac-

tices and why pregnancy was excluded from benefits normally

provided other disabilities, that it had been justified

on the basis that pregnancy is distinguishable from all

other disabilities because it is voluntary. I put that in

quotes. Or it is a “normal physiological condition.” Since

the Council membership is made up of 20 women, some

of whom are of religious faiths that forbid effective birth

control methods or abortion, the Council couldn’t believe

that the voluntary bit had been advanced very seriously,

but apparently it has been.

The normal physiological condition justification was puz-

zling. If pregnancy is normal is non-pregnancy abnormal?

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One would think that a normal physiological condition

would be one that could continue for a lifetime with com-

fort. Constant pregnancy certainly would not be condu-

cive to health or comfort.

In any event, the Council was concerned with employ-

ment and from the standpoint of employment absence for

childbirth had all the characteristics of other temporary

disability.

THE COURT: Just a moment, please, ma’am.

MR. KAMMHOLZ: Your Honor, I apologize for the

interruption in the dialogue, I was waiting for the end of

a sentence but I had difficulty in interrupting at that point

in time.

We note at counsel table that the witness appears to be

reading a statement. This apparently is a prepared state-

ment. It is not an answer to the question, and indeed —

THE COURT: I will have to ask you now to be a

little bit more specific as to your objection.

MR. KAMMHOLZ: We object on the ground that the

witness is not testifying but is reading a statement.

THE COURT: Well, I think the objection is well taken.

At the risk of being one of those middle-class chauvinis-

tic males, it does appear to be argumentative.

Suppose you address questions to the witness.

You may refer to such notes as you may have.

THE WITNESS: I am sorry. I made some notes. I

didn’t want to forget anything.

THE COURT: I have no doubt. that what you forget

Miss Weyand will remind you of.

BY MS. WEYAND:

Q. What position did the Council take? A. The

Council concluded that pregnancy is, that the time the

childbirth, the period that a woman has to be off for

childbirth is a temporary disability, that it had all the

characteristics of it.

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That a woman is temporarily unable to work because

of her physical condition. She is under the care of a doc-

tor.

She is likely to go to the hospital. She is in need of

replacement of income, as great a need as for any other

disability, and possibly greater since there is going to be

a new addition to the family.

So we concluded that it met all the characteristics of

other temporary disabilities as far as employment is con-

cerned.

That is what we are dealing with is employment. And

that it is one and that is the way it ought to be treated.

We made that recommendations.

We also recommended that women should not be given

any greater advantages for pregnancy than for any other

temporary disability.

We felt this would be unfair to people, both women

and men, who had other temporary disabilities.

At the time that we took this up we were considering

a proposal by the Civil Service or by a committee, not by

the Commission, by a committee to recommend legislation

that would have given women in the Federal Government

a greater benefit, greater leave for pregnancy that for oth-

er temporary disabilities. We disagreed with this and re-

commended no greater benefits because we felt the es-

sence of non-discrimination was to treat each person as an

individual and that if you started having different treat-

ment for pregnancy you would inevitably have some situ-

ations where a woman who was off because of childbirth

would be treated better than some other employee similar-

ly situated insofar as length of service, and so on was con-

cerned would have another disability and we thought they

were identical and should be treated that way.

Q. Did the Council issue a published statement repre-

senting its position? A. Yes, we did.

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Q. What was that called and when was that issued?

A. I will look it up. I can’t remember times.

Q. I will show you Plaintiffs’ Exhibit 80 and ask you

if that is a copy? A. Yes, Job-Related Maternity

Benefits, November, 1970.

Q. Thank you.

Now, in connection with preparing this report, did you

get some figures on the cost to industry of such a pro-

gram? A. Yes, we did. This Council is made up of

good Republican women, by and large, many of them in

business, and they were not wanting to do anything that

was out of the question.

We had a Mr. Hunt from the Aetna Insurance Company.

He was designated by top officials to come speak to us

and to furnish us with data on costs of various things.

He spoke to the Council before they took a position.

And as a result of this statement I prepared—

MR. KAMMHOLZ: Just a moment, Your Honor. I

Object. Hearsay.

THE COURT: Overruled. As a result.

THE WITNESS: As a reuslt I prepared a paper which

we cleared with Mr. Hunt. I prepared a paper based on

his testimony and then sent it to him at Aetna for clear-

ing.

MR. KAMMOLZ: Note the objection, Your Honor,

based on hearsay.

MS. WEYAND: We will provide the documentation.

THE COURT: Please, you must address yourselves to

the bench. The objection is well taken as to the last

part of the answer.

MS. WEYAND: I would like to show the witness Plain-

tiffs’ Exhibit 81, please, and ask you if that represents

the figures you have obtained from Aetna with respect to

the cost?

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379

THE WITNESS: Yes, it does.

BY MS. WEYAND:

Q. Did you verify with Aetna the accuracy of the

figures?

THE COURT: I am sorry. Just a moment. You said

Plaintiffs’ Exhibit 81?

MS. WEYAND: Yes.

THE COURT: It is described on your list of exhibits as

Citizens Advisory Council on the Status of Women infor-

mation from insurance industry related to coverage of

childbirth. Is that what you are referring to, Miss Wey-

land?

THE WITNESS: Yes.

MS. WEYAND: Yes.

THE COURT: All right. I just wanted to be sure.

BY MS. WEYAND:

Q. And this was no document to which you referred

when you said you had obtained information from the

insurance industry included in your report, is that correct?

A. Yes, sir. Yes, ma’am.

Q. I would like to have marked for identification as

Plaintiffs’ Exhibit 121 a letter which I would like to

show you. It is a letter which is from James Hunt to

Mrs. Catherine East, dated June 30, 1971.

MR. KAMMHOLZ: Your Honor, may I go back to the

Plaintiffs’ Exhibit 81? Mr. Strauss, who had dealth at

great length with counsel advises me that he had not re-

ceived a copy of it, and I must confess that I have diffi-

culty in identifying and relating this document to what

has been handed the witness, which I have not seen.

THE COURT: Didn’t counsel meet as required by the

pre-trial order?

MS. WEYAND: Yes, And I sent him over a list of all

exhibits and he marked off the ones which he said were

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380

missing from his set and I sent them over.

I am very sorry if this didn’t appear in that group.

THE COURT: I will give you an opportunity before

cross-examining to look at it.

Go ahead, Miss Weyand. Let’s see if we can’t move

along now.

MS. WEYAND: Yes.

I am handling you the document marked for identifica-

tion as Plaintiffs’ Exhibit 121 and ask you if that is a

letter you received from Mr. Hunt confirming the figures?

THE COURT: Just a moment.

THE WITNESS: Yes, it is.

MR. KAMMHOLZ: May it please the Court - -

THE COURT: All right, sir.

MR. KAMMHOLZ: Plaintiffs’ exhibit list does not re-

late to a 121.

THE COURT: I know.

MR. KAMMHOLZ: We object.

MS. WEYAND: Mrs. East was -- did not provide this

to me until today when she testified at another hearing

we had a week ago, and at that time counsel, the Strom-

berg-Carlson case, objected because she did not have con-

firmation and she said I have a letter, and I will bring it

down, and the first time I saw it was today, was that she

got a letter from Mr. Hunt confirming the figures here.

THE COURT: I am going to sustain the objection.

But counsel for the defendent must recognize that you

are going to get treated the same way in the event you

come across any exhibits you would like to offer.

The objection is sustained.

It was not filed pursuant to the pre-trial order.

MR. KAMMHOLZ: Your Honor, may I?

THE COURT: Change your mind, did you?

All right, sir.

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381

MR. KAMMHOLZ: I would like the record to be clear

that we object to 81 on the ground that it is hearsay.

Perhaps the record already reflects.

THE COURT: Let’s not go through those objections.

They are all in the record.

BY MS. WEYAND:

Q. Do you have any information as to the extent to

which it has been the practice of pregnant females in the

past to continue working right up to delivery if their doc-

tors advise that this was approved by them? A. Well,

we have had a great deal of difficulty in finding any em-

ployers that have permitted this. Even the Federal Gov-

ernment that has — that does permit the use of sick leave,

recommends that agencies require women to be off four

weeks before and eight weeks after childbirth. And of

course the complaints that the EEOC gets are complaints

from employers who do this.

And I have tried, I have made a number of telephone

calls, and I have tried to find employers who did allow

women complete freedom and to get data on it. We

found a few who do.

I think — can I name them?

Q. Yes, if you will, please. A. Okay.

Xerox and IBM, Kline-French Drug Company in Phila-

delphia, I believe that is the name.

The Labor Department of the Federal Government.

Now, I want to make it clear, I dont’ have the staff

to make any kind of systematic surveys. These are things

I have run across when | talk to people. The Cummings

Company in Ohio and a Mount Zionist Hospital in Miami,

Florida.

I checked with all of them to see if they had any data

and how long women did stay off when they were given

freedom to choose, and they don’t.

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382

It seems that the greater the extent to which they

treat it like any other temporary disability the less access-

ible the data is.

I found that in the Labor Department if I want to

make a survey of even on administration I would have

to go through every leave record for sick leave, for leave

of any kind, and try to pick out those that look like

they might have been long enough for a baby, and then

check and see if they had and how long they were off.

And the same thing apparently was true in the other

companies. I called and asked if they had data and they

said they didn’t and said it would be difficult to compile.

So I have been unable to get any data as to how long

women will stay off. I suspect it will be some time be-

fore we know.

The women have been conditioned by these require-

ments to think they, you know, should be off, that it is

proper to be off that long, and in many cases I think

there is some ridicule when they are not, even in profes-

sional circumstances.

MR. KAMMHOLZ: Your Honor, I object. This is

speculative, hearsay, nonexpert testimony.

THE COURT: I think it is a little out of the witness’

field of expertise.

MR. KAMMHOLZ: I move to strike.

THE COURT: The objection is well taken.

BY MS. WEYAND:

Q. When you mentioned these companies, are these

companies that paid sickness and accident benefits on the

same basis for a disability arising from pregnancy and

childbirth? A. Yes. They tell me that they are com-

pletely complying with the EEOC Guidelines, that they

are treating it like any other disability and making pay-

ments and letting women decide, with their doctors’ con-

currence.

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383

Q. All of these are companies that do have a payment

of what we call sick pay for disabilities of all sorts includ-

ing those arising from pregnancy? A. Yes. They either

have sick leave or have temporary disability insurance cov-

erage or both.

Q. And they treat -

THE COURT: Just a moment, please.

Yes?

MR. KAMMHOLZ: Your Honor, this line of interroga-

tion has elicited hearsay answers.

THE COURT: I think I can separate it.

MR. KAMMHOLZ: I dislike being a constant objector,

particularly since I am a male, but may I have a standing

objection?

THE COURT: Yes. Yes, of course.

MR. KAMMHOLZ: Thank you, Your Honor.

THE COURT: I will try to separate the hearsay as

best I can.

BY MS. WEYAND:

Q. Are there figures available from the Federal Govern-

ment with respect to the extent to which women are off

and return to work? A. Yes.

Several years ago, I will give you the exact date in a

minute, the Civil Service Commission made a survey of, I

believe, five agencies that they considered representative

on maternity leave. It is called the Report of the Sub-

committee on Maternity Benefits to the Inter-departmental

Committee on the Status of Women, 1969. And in there

they reported on a survey they had made. Here it is.

Five agencies. And one of the bits of data they collected

was how long the women were Off.

And they found it varid — I am sorry, it was six agen-

cies. The shortest period of time, that average median,

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384

the snortest median period was 11 weeks for the Labor

Department. And that was about a year after the Labor

Department started letting the women choose how long

they would be off.

Q. What year was that? A. That the Labor De-

partment made this change? 1968.

Q. These figures are ‘69 figures, is that correct?

A. No, Iam sorry. This is 1967. This was published in

‘69, but the survey was not. 1967 figures and the Labor

Department had made the change in 1966.

Before that the Labor Department had required the

women to be off six weeks before and eight weeks after

childbirth.

Labor — the median there was 11 weeks.

Q. That is the Department of Labor? A. Depart-

ment of Labor. State Department 11.5. Internal Rev-

enue Service 12. Veterans Administration 14. Social Secur-

ity 17.

— all these agencies who had employees doing substan-

ially the same kind of work. The only one that had any

with heavy-duty workers was the Post Office Department.

(page 21) And the heavy-duty workers only took off 16

weeks in the Post Office Department (page 27) although

in Social Security, which is entirely clerical, it was 17.

So my conclusion from that wouid be that the social

climate in the agency had a great deal to do with how

long the woman took off, and also the requirements she

be off for a particular »eriod of time.

Q. The study also sows when they came back, did

they? A. This was a total of how many came back,

you mean?

Q. Yes. A. Yes, it showed that 21.3 percent ter-

minated or resigned while they were on leave. At the

time this study was completed eight per cent were still

on leave. 70.7 had returned.

385

Three per cent had resigned after return.

It is not clear any place in this study whether those

resignations after return had anything to do with the preg-

nancy or not.

But in any event, the most conservative estimate would

be that 70.7 percent had returned and eight per cent were

still on leave.

Also showed that although this was the general loss rate

two agencies had a loss rate of 40 per cent.

THE COURT: All right.

MR. KAMMHOLZ: Your Honor, so the record is clear,

my objection stands, I take it, on the ground of hearsay

on the grounds of conclusionary statements by the witness,

and on account of nonresponsiveness to the questions pro-

pounded.

THE COURT: Well, the proper foundation has not been

laid.

I think it would be, and I don’t want to run the risk,

but much of the evidence you are getting in is a very

peculiar way to do it, different from the rules of evidence,

and you run the risk.

MS. WEYAND: I thought when she was qualified as

an expert it covered. I will go back.

I understood you wanted to expedite matters.

What participation did you have in investigating the

facts in regard to how long women are off?

THE WITNESS: This study.

BY MS. WEYAND:

Q. As part of your present position what did your in-

vestigation reveal? A. Well, at this time that this study

was done the Interdepartmental Committee on the Sta-

tus of Women was also in existence and functioning. And

this study was done at the request of the Interdepartmental

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446

386

Committee on the Status of Women, of which I was also

Executive Secretary.

Q. So you were Executive Secretary of the agency that

made this study? A. Of the committee that makes it,

and I also planned —

Q. Collecting the data? A. Not collecting the data.

That was done by the agencies. The agencies under in-

structions from tle Civil Service Commission collected the

data.

Q. But you assessed the — A. It was done at

the request of the Interdepartmental Committee.

Q. You have participated in requesting the various six

Government agencies which you mentioned to provide the

data? A. I participated in the committee. I didn’t do

any of the work. It is not my job to do any of the work.

Q. You supervised the people that did the work in con-

nection with it as Executive Secretary, is that correct?

A. I wouldn’t call it supervising. The Executive Secre-

tary has a kind of an anomalous position. I was in touch

and I contributed and I saw to it it was done because the

Interdepartment Committee wanted it done, but an Execu-

tive Secretary ordinarily doesn’t supervise the group that is

Carrying out the instructions of a subcommittee that is

carrying out instructions.

Q. For the subcommittee you were the person who

executed the task of collecting the material in terms of

saying that it was collected and prepared, is that correct?

A. If they hadn’t done it I would have followed up to

see that they did.

Q. You got it done, yes. And it was your job to get

this? A. Yes.

Q. This material collected? A. Yes.

Q. You checked to see how accurate it was, did you?

A. I had no way of checking it.

447

387

The agencies furnished this data. The Civil Service Com-

mission asked each agency to keep a record for that pe-

riod of time for each woman on maternity leave and turn-

ed it in to the Civil Service Commission.

They have a research staff, duly competent to collect

data, analyze it and tabulate it.

I worked with the Civil Service Commission 20 years.

So I was knowledgeable as to their competence. And I

fully relied on their research department to do this.

I have no doubt the data is as accurate as the agencies

furnished, and I have no reason to think the agencies

would, you know, jimmy the data in any way.

Q. This was the data that was furnished by the agen-

cies? A. Yes, furnished by the agencies and tabulated

and analyzed by the Civil Service Commission.

Q. And you were Executive Secretary? A. Of the

Interdepartmental Committee on the Status of Women and

the Chairman was one member of that, of the Civil Service

Commission.

Q. And the figures you have read represent what was

furnished you by the agencies? A. Official publications.

Anybody can get it, a public document.

It is the only thing I know of that has any information

about how long women stay off. And of course here you

have to keep in mind that these agencies, except for La-

bor, I think require them to stay off six weeks before and

eight weeks afterwards.

Q. Do these agencies provide sick leave for the time

that the woman is absent? A. The Federal Government’s

sick leave system provides that it can be used for maternity.

Q. That is for any period that the woman is off because

of pregnancy or childbirth? A. Childbirth, that’s

right.

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449

388

Q. As part of your duties in connection with either

the Interdepartmental Committee or the Citizens Advi-

sory Committee, did you make any investigation as to

whether there had been any Workmen’s Compensation claims

attributed to pregnancy? A. I made some inquiries

as to whether there was any reason to think that kceping

women off until they delivered would increase the employ-

ers’ risk because this is one of the things that we are con-

cerned with.

Q. What did you — how did you do about collecting

this data? A. I didn’t really collect data. I called. I

have no staff. I have one secretary. So a great deal of

my information I have to get by calling people in the

Government. I know my way around Government and I

find out who to call, I call the chap in the Labor Depart-

ment who is in charge of the Federal Employees Compen-

sation Program.

THE COURT: Just a moment.

MR. KAMMHOLZ: Objection, Your Honor, as to hear-

say. Move the answer be stricken.

THE COURT: Objection sustained.

BY MS. WEYAND:

Q. Do you know of any printed reports or studies

which state whether or not there is a record of claims

having been filed for Workmen’s Compensation? A. I

couldn’t find any, couldn’t find any data at all, published

data.

Oh, the Prentice-Hall survey did have a reference to it,

yes. I guess they asked employers if -

Q. I show you Plaintiffs’ Exhibit 78 and ask you if

that is the Prentice-Hall study to which you had reference?

A. Yes.

Q. Made the statement? A. This is it.

Q. And you know of no other information? A. No.

450

389

Q. You made an effort to find other information?

A. That’s right. This came up after we had done our

study, after the Council had done its study. At the time

I could find nothing at all, but this did come out later.

Q. To what extent are mothers of small children em-

ployed in industry today?

THE COURT: You mean young children, don’t you?

MS. WEYAND: Yes, young children. Correction.

Thank you for the correction.

THE WITNESS: It depends on the salary of the hus-

band. The data I have here is by salary of the husband.

BY MS. WEYAND:

Q. Would vou state what data you have reference to

now? A. Yes, This is from the U.S. Department of

Labor, Bureau of Labor Statistics, summary, special Labor

Force Report, October, 1972, Marital and Family Charact-

eristics of Workers as of March, 1972.

I think maybe I have —

Q. I would like to have the witness look at Plaintiffs’

Exhibit 72 and ask if that is the data to which she has

reference? A. Oh, no, maybe I better use this.

I have a little later data that I have got here, but may-

be since this is —- was in the record we better use this.

I forgot that this has to be made available earlier. |

try to get the latest thing I can before I come to testify.

MS. WEYAND: I would like to offer the up-to-date

data, if I might. I am very sorry.

I make efforts when I prepare to get the data and the

witness brings in some later data and it seems to me in

the interest of having the record complete it should have

the latest data.

THE WITNESS: It doesn’t matter.

THE COURT: Just a moment, please.

451

452

390

MR. KAMMHOLZ: Your Honor, Mr. Strauss advises

me that we do not have the former data, so-called Plain-

tiffs’ Exhibit 72, and obviously we don’t have the new

document which I would like to see, if I may.

MS. WEYAND: He gave me a list.

THE COURT: Miss Weyand, I can’t understand why

counsel hasn’t seen these exhibits. Now, maybe you

haven’t seen some of theirs, but I can’t understand why

they haven’t seen it.

Can you explain it to me?

MS. WEYAND: I made, pardon me, I gave him a list

of my exhibits very well ahead and I sent him over all of

the documents. He gave me a list of the ones he didn’t

have and I sent those to him Friday or Saturday. And

this was not on the list he gave me.

I am very sorry if he didn’t have it. I made an effort.

We have plenty of copies and he certainly would have had

it if | had had any idea he didn’t have it. | regret very

much that he seems not to have had it.

THE COURT: All right.

Anything else, gentlemen?

MR. KAMMHOLZ: May Mr. Strauss respond to this?

He is the one, who I noted earlier, that dealt with Miss

Weyand in connection with all of the exhibits.

MR. STRAUSS: Your Honor, Miss Weyand is correct

that I did give her a list of the documents that I was

missing. This was last Saturday morning or Saturday

afternoon.

Miss Weyand did send me some documents. I am sorry,

sir, she did not send me all the documents that I re-

quested.

Now, it may be that I made an error and not requested

some, but we are missing quite a number of the documents

which appear on her list.

453

391

You might inquire why I didn’t point this out when |

filed our proposed objections.

THE COURT: That was going to be the next inquiry.

M™. STRAUSS: The reason was that on the surface,

sir, I thought they were so objectionable as hearsay and

irrelevant that I didn’t point this out.

THE COURT: Do you have a list now of the proposed

exhibits that you have not had an opportunity to see?

MR. STRAUSS: I can compile it in two or three min-

utes, sir.

THE COURT: Aill right.

Suppose you do that. Suppose you do that as soon as

we recess tonight.

All counsel will, please, remain and use the conference

room so that you may exchange exhibits, something which

should have been done some time ago.

And I will have to keep the witness for cross-examina-

tion, gentlemen, until you have had an opportunity to

see this. If it is tomorrow it is tomorrow.

Go ahead and let’s see if we can’t move along.

Use the latest information you have.

MS. WEYAND: Thank you.

Will you give your latest information, please, Mrs. East?

THE COURT: And the sources, please, ma’am.

THE WITNESS: All right.

The source is the Special Labor Force Report No.

153 of the Bureau of Labor Statistics, March 1972.

And the participation rate of mothers with children is

shown by income of the husband (Table J).

When the income of the husband is under 3,000 a

year, 31 — 34.1 per cent of the mothers with children

under six are in the labor force.

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455

392

Of the mothers with children six to 17, 51 per cent

are in the labor force.

If the income of the husband is $3,000 to $4,999 39

percent of the mothers with children under six are in the

labor force. 53 percent of those with children six to 17.

If the husband’s income is 5,000 to 6,999 37.7 per cent

of the mothers with children under six are in the labor

force and 57.3 per cent of those with children six to. 17.

With income of the husband between 7,000 and 9,999

32.8 per cent of the women with children under six are in

the labor force. If you are not looking at it maybe I

ought to point out that the highest participation rate for

mothers with children under six is in the 3,000 to 4,999.

39 percent there. Then it starts going down. When you

get to the 7,000 to 9,999, the one I was just quoting,

32.8 per cent are in the labor force. 56.3 of those with

children six to 17.

The 10,000 and over, 22.4 per cent of the mothers with

children under six are in the labor force. That is the

lowest percentage of any group. 45.1 of those with chil-

dren six to 17.

And I think the general trend here is that the higher

the income of the husband the less apt a woman is to

work with children under six. She is a little more

likely to work if the children are six to 17.

But here again it goes down with the income of the

husband. The percentage of women working goes down

as the income of the husband goes up.

BY MS. WEYAND:

Q. Has there been a change or trend in recent years

with respect to the employment of women with young

children; A. Yes, It has been going up.

Q. Do you have figures on that? A. Yes.

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393

In March, 1960, 18.6 per cent of women with children

under six years of age were in the labor force.

In March, 1972, it was 30.1 per cent. With children

under three in March, 1960, it was 15.3 percent. In

March, 1972, it was 26.9 percent. For all wives in 1965

it was 34.7 per cent without regard to the age of their

children and 41.5 in 1972.

So here again, the younger the children the less apt

she is to work, but nevertheless the figure is going up. It

has gone from 15.3 to 26.9 for the women with children

under three.

The participation of younger women who are in the

prime childbearing years has also gone up substantially.

In 1960 28.2 per cent of all wives under 35 were in the

labor force. Today it is 43.4 per cent. Of those 35 or

over it was 31.7 percent in 1960 and 40.4 per cent in

1972.

Now, these data came from the Monthly Labor Review

for April, 1973, pages 33 and 34, “Labor Force Activity

of Married Women.”

Q. Do you have any reason for believing that these

figures do not represent what women would do if employ-

ers would assure women the right to return to their jobs

and if pressures from employers were not applied to dis-

couraging returning to work?

MR. KAMMHOLZ: Just a moment.

If the Court please, I object.

The question assumes matters not of record, at least

in two instances.

THE COURT: Overruled.

Go ahead and answer it if you can, ma’am.

THE WITNESS: Well, I think one of the reasons it

has been going up is because the cultural pressures are

457

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394

decreasing, and employers’ pressures, I suppose, are decreas-

ing too as the cultural pressures do and as laws give

women some leverage for enforcing rights. Women in the

labor force have smaller families too. That is in this same

article. Very interesting.

Q. The one in the Monthly Labor Review that you re-

ferred to? A. Yes.

Q. Do you have the figures on that handy there?

A. Yes.

For women not in the labor force the age 15 to 44.

THE COURT: Let me get it straight.

What are you reading from, ma’am?I really haven’t got

it. This official Government document?

THE WITNESS: Yes, sir. Yes, sir. I will show you.

I have taken these data down, but it is from the Bureau of

the Census publication, Series P-20, No. 240, “Birth Ex-

pectations and Fertility”, June 1972.

THE COURT: All right.

I took these figures out because I didn’t want to have

to go from page to page there.

Women 15 to 44 who were not in the labor force had

1.88 children per woman.

For those in the tabor force it was 1.25.

For women 40 to 44, which would be woman who

have completed childbearing years, pretty largely, it was

3.34 for those not in the labor force and 2.74 for those

in the labor force. This had been a consistent pattern

over the years for labor force participation.

Women in the labor force have fewer children than

those not in. There have been no studies of women that

have careers that I can find. This is just the women in

the labor force at any given moment.

BY MS. WEYAND:

Q. To what extent had women been permitted to

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460

395

return to employment as soon after childbirth as their phy-

sicians have approved as far as you have studied industry

in the past and investigated the matter? A. We could

find very few employees — we could find very few employ-

ers that had permitted women to come back when they

wanted to.

Q. Could you tell us of the various federal laws under

which disability benefits are paid and state the extent to

which, if at all, payments are made for periods of disabil-

ity due to childbirth or complications of pregnancy?

A. Well, the Railroad Unemployment Insurance Law is a

federal law and it provides payment for just like any other

disability, and Federal Civil Service Law does.

The Social Security Disability Law provides for payments,

that is for long-term disability, for more or less permanent

disability. And it provides for payment where the women

has a condition that resulted from pregnancy, a long-term

disability that could come from, I guess, the kind of thing

the doctor was talking about this morning, some of the

more major disabilities, major complications.

Q. Have you made a study of what, if any, provisions

for income maintenance is made in whole or in part in

other countries with respect to absence from childbirth or

complications of pregnancy? A. Well, I don’t recall

the study.

THE COURT: I am sorry.

Would you mind?

THE WITNESS: Sorry

I used in determining for the Council what was done

in foreign countries this public Social Security program.

MR. KAMMHOLZ: May I interpose an objection, Your

Honor?

We object on the ground that this is irrelevant to the

issues in this case.

461

396

THE COURT: Go ahead.

BY MS. WEYAND:

Q. You are referring to Plaintiffs’ Exhibit 85, are you,

is that correct? A. I don’t know what the number is.

This one. Yes.

Social Security Programs Throughout the World, 1971.

It is published by the Department of Health, Education,

and Welfare every year or every two years, and it has a

breakdown of the various kind of social security programs

in all the countries.

And most of the European countries have a social se-

curity system that includes compensation for loss of in-

come while people are temporarily disabled, while employ-

ees are off from work, and it includes the time a woman

has to be off for pregnancy.

Q. Do you know if these financing and administration

of these provisins for disability from childbirth and preg-

nancy are financed and administered as part of the social

security system for other disabilities?

A. In other countries it is largely a part of the federal,

or the national system of social security. And that is, of

course, what the Johnson Council recommended, a federal

temporary disability insurance system.

Q. Covering all disabilities? A. Covering all disabili-

ties.

Q. In private industry, and that included in that not

treated differently would be disabilities from childbirth?

A. That is the way they thought that maternity leave

should be handied. They came to this conclusion from a

study of maternity leave.

Q. Now, did the Citizens Council, the report which you

have mentioned, differ from that?

take a position on that.

462

A. The Council didn’t 463

397

What they recommended was within the present frame-

work of our system, the way it is developed here, that

whatever requirements, whatever provisions an employer

had for other temporary disabilities should be applied to

we no position that they should change the SsO-

cial security system in this country by having a national

system?

A. That was one of the options that was put up in the

staff paper. When I do a staff paper I try to give them

all the options and to go into what other groups have done

in the past, and they did not adopt this option.

Q. They felt the social security system that developed

here in private industry is one that should be applied

equally as employers set up their own system? A. That

is what the recommendation indicates.

Q. Yes.

Could you tell me what the experience has been in the

states that have, New Jersey I believe for instance, has

covered in its disability system, disabilities arising from

pregnancy and childbirth? Are you acquainted with what

the experience has been? A. Yes.

The New Jersey system provides for payments for four

weeks before and four weeks after childbirth. And I have

some data for New Jersey that they publish in their annual

report which indicates that less than eight weeks is taken

two groups. a

” ao feniee systems for paying temporary disability

insurance, not two systems but two funds from which it

; nr is for non-pregnant cases as well as pregnant?

A. Generally the system provides that if a person Is

on the job or has been laid off less than three or four &

weeks he is paid out of one fund. His temporary disability

398

insurance payments come out of one fund. If he has been

laid off more than four weeks and he is entitled — he is

otherwise eligible, his temporary disability insurance pay-

ments come out of what they call unemployment fund

And they break down the pregnancy claims in both

funds. And in the fund where the women have not been

off more than a couple of weeks it is a little less.

. Q. Than in the unemployment fund? A. Yes. But

in both cases it is less than eight weeks. And they state

in their annual report that the reason most of their preg-

nancy claims come out of the unemployment fund, is that

employers require women to take off before the four weeks

before the four-week period, so they pay most of their

claims out of that fund. That information appears in the

Law Review article, and I don’t know which exhibit that

is.

Q. Let m i i i

m.. € show you 82 and ask if that is the informa-

A. The Law Review article that that i i pears

. t info

In, yes, also appears in this. pra

‘ 7 Is a the one you are referring to, or another?

. No. e Law Review articl ‘ )

eg e, Mrs. Koontz’s Law Re-

Q. That is 83-A, then?

put in there.

Q. I show you Plaintiffs’ Exhibi

' it 83-A and if i

appears in there? A. Yes. pad

Childbirth and Childrearin

g Leave: J

by Elizabeth Duncan Koontz. ee

MR. KAMMHOLZ: Move to strike, Your Honor, on the

ground that that is hearsay twice removed.

MS. WEYAND: I was going into — I am sorry.

I wanted to lay a foundation.

A. That information was

465

466

399

THE COURT: You best lay your foundation first. It

is not your fault, but I have been misled to some extent

by just looking at the list of exhibits.

Go ahead and see what you can do with it.

BY MS. WEYAND:

Q. With respect to Plaintiffs’ Exhibit 83-A, did you

participate in preparing this Law Review article?

A. Yes. I did all the research and did the first draft.

Q. And every bit of date in there? A. Every bit

of data I collected.

Q. And you drafted it? A. Yes.

Q. Drafted the article? A. Yes, I did.

Q. You did this as part of your position with the —

A. Yes.

Q. — Federal Government? A. Yes. This is cus

tomary in the Federal Government. I have spent many

years of my life drafting publications for other people’s

names.

Q. And with respect to the New Jersey data, where

did you get the New Jersey data you have told us about?

A. From the annual reports of the New Jersey State,

whatever the name of that state organization is, that ad-

ministers the temporary disability insurance system.

I called up there and they sent me all their annual re-

ports. And what I didn’t understand I called up and got

explained to me.

Q. And then you listed in here — A. Yes.

Q. -— in Plaintiffs’ Exhibit 83, the sources you used —

A. Oh, yes.

Q. — for the date? A. All footnoted. Shows the

sources from which it came.

Q. Okay. A. A great deal of the other information

that I have given is also in here.

Q. With the source data — A. Yes.

467

468

400

Q. — which you obtained by collecting the data?

A. Yes. That’s right.

Q. Do you have data on the differences in the absentee

rate in private industry between males and females?

A. Yes. I think I do. But I don’t know where it is

here.

The absenteeism in labor turnover publication of the

Women’s Bureau includes that data.

I think I see it there.

Q. This is Plaintiffs’ Exhibit 66 to which you make

reference, is that correct?

A. Yes. That’s right. Facts about women absenteeism

and Labor turnover.

Q. Do you have other studies besides this one on ab-

senteeism? A. I don’t think I do.

Q. That is the only one in which you are acquainted?

A. Yes.

The Public Health Service does an annual survey show-

ing how much time men and women lose from work be-

cause of illness. And in this one it is for the calendar

year '67, shows an average of 5.6 days lost by women and

5.3 days lost by men. This is based on a survey of house-

holds by the Public Health Service. They do it regularly.

Q. All right.

I believe that is all the questions I have.

THE COURT: All right.

Can you cross-examine at this time, sir? If it puts you

at a disadvantage, not having seen these papers, I will let

you withhold it.

MR. KAMMHOLZ: Your Honor, may I?

THE COURT: You want a brief recess?

MR. KAMMHOLZ: I was going to suggest that I begin

part of my cross-examination. It would certainly shorten

it for a later time.

469

401

THE COURT: All right. Whatever your pleasure is.

I think maybe I haven’t given any thought to the court

reporter. We have kept him at it.

Would you help the witness down, please?

(The witness stood aside.)

THE COURT: The Court will stand in a brief recess.

(A recess was taken at 2:30 to reconvene at 2:45.)

(The witness resumed the stand.) ! .

THE COURT: All right, Mr. Marshal, help the witness.

All right, sir. |

MR. KAMMHOLZ: Your Honor, during the recess we

ed in colloquy with plaintiffs’ counsel.

we now rent copy of Plaintiffs’ 121. It is a short

exhibit, a little over a page.

We have had an opportunity to examine it, and obvious-

ly it would not be particularly appropriate to stand on our

objection that we did not have a opportunity to examine

it.

The exhibit was not produced in time. |

I should like therefore, to withdraw that objection, but

to object to the exhibit on the ground of hearsay.

THE COURT: May I see it?

I will take that under advisement.

The objection on its face is well taken, as are many of

your objections, frankly, now that I have gone into it a

little more. I will let you go ahead with your examina-

tion, and then I have some questions to ask the witness,

after which I will let you come back to it.

MR. KAMMHOLZ: Very well.

Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. KAMMHOLZ:

Q. Mrs. East, you testified that you have appeared be-

fore several legislative committees in connection with the

Equal Rights Amendment? A. Yes, sir.

470

471

402

Q. Were you active in promoting adopti

. ption of the Equal

Rights Amendment? A. Well, an Executive Aor

is not usually active, the Council was. Our Citizens Ad-

visory Council at its meeting in 1970 endorsed the Equal

Rights Amendment. And I had found a staff person from

the Federal Government to prepare a legal memo, and it

was prepared.

I am personally convinced it is a desirable i

. . -_

desirable thing for women. wh iscand

Q. Are you familiar, Mrs. East, with the majority re-

port of the Committee on the Judiciary —

indeed. --

Q. — dated March 14, 1972? A. Yes, sir. I refer

to it frequently. 472

Q. Indeed, you have provided copies at various women’s

group meetings — A. Oh, yes.

Q. — have you not? A. It is i

— hi ' } : an important part of

the legislative history on the Equal Rights previ and

ss Q. Do you embrace the views expressed in that minori-

— in that majority report? A. In

? ; neral. ,

say I endorse all of them. “ near”

Q But when you go before legislative bodies and com-

mittees do you draw this distinction? A. Well, if I

were testifying about anything that I disagreed with I

would certainly say so, but in my testimony that I have

made before legislative bodies I have been testifying as to

things with which I had no reservation whatever.

Q. But it is your testimony here that you do have re-

servation about some of the language of th jori

e

port? A. Slightly. ae,

You are getting to the maternity leave.

Q. No. You have answered my question.

Yes, I do on that point.

Q. Any other points? A.

A. Okay.

I don’t know.

403

I haven’t read it that carefully recently.

I know that I always have had a problem with this with

that report, although I think in general it is a very fine

legal basis for interpreting the Equal Rights Amendment.

Q. Have you in any of your testimony before a state

legislative body or before any other agency drawn a dis

tinction as between maternity provisions of the majority

report and other provisions? A. No. I have never testi-

fied on maternity leave.

Q. Have you testified on ERA? A. Yes, I mean

when I was testifying on ERA I never discussed maternity

leave.

Q. Now, going back to your testimony concerning the

Citizens Advisory Committee, did I understand you cor-

rectly to say that in 1969 or 70 recommendations were

made for temporary disability insurance coverage to include

maternity? A. In 1968, I believe it was.

Q. °68? A. It was the Johnson Council, the members

appointed by President Johnson, who made that recom-

mendation.

Q. Were you the Executive Secretary —

sir

A. Yes,

Q. Of the group at the time? A. Yes, sir, I was.

Q. Was this proposal one to amend the Federal Social

Security System? A. 1 don’t think they wanted to

amend the Social Security Act. I think they wanted a

separate law that would probably be tied in to the Unem-

ployment Insurance Acr rather than the Social Security Act.

That is my recollection. I haven’t read that report in some

time.

©. The scheme of the statute was to provide such cover-

age across the land with exceptions only as to minimal num-

ber of employees in certain establishments?

473

474

404

A. Yes, with everyone. I think that group, my recollec-

tion is, that that particular task force wanted to cover just

about all employees.

Q. No matter what size the establishment? A. Well,

I am not sure, sir, what size, whether they were getting

into that or not. I don’t think they got into that in that

much detail because the primary — their primary concern,

you see, was maternity leave. And they felt this was the

best way to handle maternity leave was to have a general

federal —

Q. To have the law amended? A. A general federal

system of temporary disability insurance that covered every-

one.

Q. You made reference to European systems providing

payments for disabilities including maternity. Is it not a

fact that each of those systems is in the nature of a social

security system? A. Yes, it is.

Q. And is it not a fact also that in virtually each of

those systems the benefits payable for maternity leave differ

from benefits payable for disability sickness or illness?

A. No. My recollection was they are substantially the

same.

Q. Well, are they the same or substantially the same?

A. Well, there are different countries involved, and I don’t

think any two are identical. We would have to look at a

specific country before I could say, make a specific answer.

Q. But do you know as you are testifying now whether

as a general proposition, and I will rephrase the question,

maternity benefits are for the same duration as benefits for

sickness and illness? If you don’t know you may say so.

A. No. I don’t recall.

I reviewed this at the time I did the staff work in 1970,

reviewed these foreign coutnries, and I found that they

were considered under a general temporary, you know, a

general system —

475

476

405

Q. Yes. A. — rather than private employers han-

“7 ye now to the agencies of the Federal Govern-

ment here. I believe you testified that generally speaking

these agencies do permit maternity leave? A. Well, they

are required by law to permit employees to use a.

and annual leave for purposes of — when they are disable

regnancy or childbirth.

— pi a ran familiar with the practices of the

various agencies? A. Not with each individual agency.

I am familiar with the Civil Service Law. ;

I worked for the Civil Service Commission for 25 years

and I have a general familiarity with the Civil Service Law

that governs all agencies. They have some latitude under

the law for adopting their own practices. They don’t

have any latitude about whether they allow — oe

they pay or whether they allow sick leave to be used for

i se.

“—< ae your belief that the provisions regarding wnat

nity leave are identical with wae! and illness provisions:

eral Government?

. = po rs A. No. The Civil Service Commission has

issued some recommended guidelines. They are not manda-

are recommended.

“2 eb d they issued them recommending that

women have to take off, I think, six weeks before and

eight weeks after childbirth. I believe those are the periods.

Also recommending that they not be permitted to use

ick leave. :

ry - ss objected to that. We have written to

the Civil Service Commission several times requesting that

this be changed and requesting those guidelines be with-

drawn. bie

Q. Have those changes been made or those guidelines —

A. No, they haven’t.

477

406

Q — been withdrawn? A. No, they have a com-

mittee set up, and I have testified before the committee

and some of the women’s groups’ representatives have

too, but they have taken no action yet.

Q. Would it be fair to say then that in your view these

agencies of the Federal Government discriminate on the

basis of maternity leave? A. Not all of them follow

the guidelines. The Labor Department doesn’t, and I think

some others don’t. I have not made any survey of which

agencies do and which don’t. As | say, they are not man-

datory.

Q. The great majority of the agencies, however, do

make a distinction between maternity leave and sickness

and illness leave?

7 rs To the extent of requiring women to take off ear-

ier?

Q. Right. A. I don’t know. I say, I have made

no survey.

Q. And you have no independent knowledge? A. I

know about the Labor Department because I worked there

and I have inquired there.

Q. Do you know about HEW? A. No, sir, I do not

Q. Defense Department? A. The Defense Depart- j

ment overseas teachers, I checked into that at one point

when I testified down here on teachers, and the Defense

Department for overseas teachers treats it exactly like any

other temporary disability.

Q. Do you know about the practice at the Equal Em-

ay Opportunity Commission? A. No, sir, I do

not.

Q. The National Labor Relations Board? A. No, sir

Q. Mrs. East, you testified on direct examination that |

a number of companies with respect to which you had

made Studies engaged in practices which in your view dis-

criminated on the basis of sex, is that right?

478

479

407

A. You mean as far as maternity leave is concerned?

Q. Generally? A. Well, I think I am testifying about

maternity leave.

Q. Iam asking you about sex discrimination generally.

A. I have no — I have not investigated agencies generally

for sex discrimination.

Q. Agencies or companies?

agencies.

Q. Did I misunderstand? A. I know what the data

shows about relative earnings and this kind of thing and

I, you know, have some contact with EEOC lawyers and

with the lawyers in the Labor Department who are attempt-

ing to enforce the Office of Federal Contract Compliance,

but I am quite sure you classify all I have to say on that

basis as hearsay.

Q. Yes. I do. A. Yes.

I have some opinions about it.

Q. Well, I am delighted to know that we have some

agreement on this point. A. I have spoken before a

number of agencies including GE up at Crotonville.

Q. This is a company with pretty good employment

practices, is it not? A. I have some reservations about

them, particularly their maternity leave.

Q. Excluding maternity leave for the moment, it is a

pretty good company in terms of nondiscrimination, isn’t

it? A. I don’t know, sir. I don’t have any data on

how many women you have in top jobs. I don’t see any

women back here at the witness table, and I didn’t see

very many when | was up at Crotonville at the executive

meeting.

Q. There aren’t many around.

They are hard to come by. A. Well —

THE COURT: You see a picket line form around the

courthouse and you wouldn’t think they are so hard to

come by.

A. Companies. Or

480

481

408

MR. KAMMHOLZ: I may have the advantage, Your

Honor, in being able to get out of town quickly.

THE COURT: Not if you stay close to me.

BY MR. KAMMHOLZ:

Q. Now, may I go back briefly to your position with

the Citizens Advisory Council. You are Executive Secre-

tary? A. Yes, sir.

Q. Would you describe the duties of the Executive Sec-

retary? A. Well, Executive Secretary does the work for

the group. The Council members set the policy. They,

you know, determine what they want to recommend, what

subjects they want to study. I usually work closely with

the Chairman in setting up an agenda for a meeting.

I may make some suggestions for topics they may take

up of interest, or I think the group may be concerned with,

and she may make suggestions, and we get suggestions

from the members and when we do an agenda then I have

to do as much research as is necessary to arrange a pro-

gram that will give the members background in that area.

Q. Do you gather information for the members?

A. Yes.

Q. You do this by telephone or by letter? A. Yes.

And I send out papers to them. We may collect publica-

tions of other groups, what other people have done. Any-

thing that seems relevant to the topic we are going to take

up we would send out to them in advance so they could

be briefed on the topic.

Q. Do you vote as a member?

A. No. No, I am not a member. I am the technician

who does the staff work.

I am the only full-time employee. The other members

serve without pay. They come in for meetings two, three

four times a year for two days at a time.

Q. All women members? A. In this Council, they

were. In the preceding Council, they were not.

482

469

Q. They serve without pay; that is not a form of dis

crimination by WCAW against women? A. Some think

it is because all the men’s advisory groups get paid and

get to come in much more often and they have a lot more

. The material that you gather, as I believe you al-

luded to in your direct examination; comes on the basis

of phone calls, letter inquiries — A. a ’

Q. — to other agencies of the Government? A. An

reading material. I subscribe to practically all the publica-

tions of the women’s movement, and there are a great

many now. I read the books and I watch the newspapers.

I have quite a collection of materials. See, I have been

is for 11 years.

Ta quite a o> of materials on all subjects

that are directly related to the women’s movement of things

I have collected, even though the Council may not be

studying it at the moment or might not be any idea they

would in the future. .

And so I have materials on a great many topics, and |

bibliographies and this kind of thing that I use in planning

; yey you see in the Federal Government there is an

expert on almost anything. And by working with the Civil

Service Commission as long as I did I get a pretty good

idea what each federal agency does. I was dealing with

them all the time. I have a pretty good idea of where all

the experts are hidden, where to call to get information

and who is, you know, who is a good source.

Q. And it is this kind of contact work with the —

that describes the nature of your a for the Council?

staff rs frequently.

‘ = tha ae ee ‘ae you get from these places?

A. Yes, and from my personal knowledge. | have been

in the Federal Government almost 35 years, 25 or it in

483

484

410

the Civil Service Commission where I was doing entirely

staff work relating to legislation and to the Federal Person-

nel System.

MR. KAMMHOLZ: I have no further questions, Your

Honor, but I should like at this time to move to strike all

of the testimony of the witness on the ground that her

answers On cross-examination show that her testimony is

hearsay.

THE COURT: Well, I don’t think that is exactly what

she said.

What do you do with this information that you gather?

Do you keep it as part of the records of the Council or —

THE WITNESS: Well, I keep the material, but then

when we start studying a subject like maternity leave I

prepare a paper based on it. The papers that have been

published by the Council on maternity leave I prepare.

THE COURT: Part of the ordinary course of business

of the Council?

THE WITNESS: Yes, all their publications. And I

could bring in a whole stack of them. | have prepared all

their publications except — in the last four years, except

two that I can remember were prepared by other people.

THE COURT: All right.

The objection is overruled.

I guess you don’t get to be an expert except from ex-

perience and reading. I can separate that.

Objection is overruled.

MR. KAMMHOLZ: May I have a moment, Your Honor?

One more question?

THE COURT: Yes. Yes.

BY MR. KAMMHOLZ:

Q. Mrs. East, you are aware, are you not, that the ma-

jority report of the Committee on Equal Rights sets out

that the ERA does not require that women must be treat-

ed in all respects the same as men? A. That’s right.

485

486

411

Q. Do you agree or disagree with that statement?

A. I disagree with it insofar as it relates to maternity.

Q. You have answered my question.

The statement goes on, “Equality does not mean same-

ness.” Do you agree or disagree with that statement of

the majority report? A. I agree with that. It is an

abstract statement with little meaning by itself.

Q. Now, the majority report from the Committee on

the Judiciary goes on, “As a result, the original resolution

would not prohibit reasonable classifications based on |

characteristics that are unique to one’s sex.” Do you again

disageee with the majority report of the Senate Judiciary

Committee? A. I would —

Q. You may answer that yes or no, please.

I can’t answer it yes or no. |

THE COURT: She is entitled to give an explanation.

See if you can’t answer yes or no first and then give

ion as you want.

cen aueeans: Well, I can answer and then give you

the explanation, but I don’t want to answer it without.

. MHOLZ:

ee may answer and then go to your explana-

tion. A. I would agree with it, but I would have to

alifications on various topics.

" row = maternity leave I would — as it relates to

employment. Conceptually and in the abstract I can con-

ceive that there might be laws that would deal with preg- .

nancy that would be in accord with the Equal Rights Amend-

ment. I don’t know of any right now. Conceptually |

think there is a possibility. But when you are talking

about employment and relationship of the time a woman | ,

has to be off for childbirth, I think any law that dealt wit

that especially, you know, would be not only in omar :

with the Equal Rights Amendment, but also with the 14t |

Amendment and Title VII, of course.

A. Well,

487

412

Q. Are you a lawyer? A. No sir. I am not. I am

familiar with this area of the law, though.

Q. Do you believe there are characteristics unique to a

sex? A. Yes, but I don’t think they make much differ-

ence about legal rights.

Q. Well, I believe Senator Javits in the Senate debate

agreed with you that there are differences, and he added,

“Vive la difference.” A. Well, male chauvinists say

that. We know where a man is when that is the way he

talks.

Q. Well, if the female of the species adheres to the

point of view which I gather you take to the contrary,

too long, there won’t be any of us around to worry or

argue? A. You are misrepresenting my point of view.

I have two children and I am very happy with them, and

I had sick leave when I had them.

Q. You were Mrs. East at the time? A.

East, yes, sir.

Q. But you are Ms. East now? A. It doesn’t matter.

Whatever is comfortable for you is comfortable for me.

Q. In summary, then, it is your testimony here that

you disagree with the majority of the Senate Judiciary?

A. I don’t disagree. I would have qualified it if I were

writing that report. I would have liked to have had may-

be a paragraph or two there instead of having that one

little short sentence.

Q. You have answered my question. You disagree?

A. Well —

THE COURT: You can give such explanation as you

deem appropriate.

THE WITNESS: All right.

I don’t think that — I don’t consider that a serious prob-

lem in the Senate Judiciary Committee report because I

think any judge who had a case before him that involved

this would look at the total legislative history and total

488

I am Mrs.

489

413

purpose and the total situation in which, you know, it

was framed.

And I don’t have any doubts that most judges would

hold that any laws that purported to treat pregnancy

different for purposes of employment and maternity leave

was, you know, was not in accord with the Equal Rights

Amendment. So I con’t feel that is a serious problem

with it, with the Judiciary Committee report.

BY MR. KAMMHOLZ:

Q. Now, you were — may I move that this be stricken

from the record, the testimony of the witness which would

substitute her judgment for that of the Court, the last two

sentences of the last answer?

THE COURT: Do you really think it could happen?

THE WITNESS: Are you speaking to me?

THE COURT: No.

MR. KAMMHOLZ: Subject to the earlier colloquy

about —

THE COURT: Well, I don’t mean to be facetious, but

I don t think your suggestion ought to be dignified by a

ruling from the Court.

MR. KAMMHOLZ:

accede to it.

THE COURT: All right.

MR. KAMMHOLZ: Now, in all candor, I don’t at the

moment — I am not sure that w will have additional in-

terrogation.

THE COURT: Well, we will have Mrs. East available

to you with reasonable notice. I would not like to con-

I understand the Court’s ruling. |

fine her —

MR. KAMMHOLZ: Very well. Thank you.

THE COURT: — to the city.

Is there any further examination?

MS. WEYAND: No further examination.

490

414

THE COURT: All right.

Will you be available, Mrs. East? Hed you planned —

THE WITNESS: Sir, I could — I live in Arlington. It

takes me about two hours to get here. So I am not plan-

ning to be out of town.

THE COURT: Would you leave with counsel for the

Plaintiff a number we can contact you at?

Subject to that you may be excused.

(The witness stood aside.)

THE COURT: Call your next witness, please.

MS. WEYAND: Mrs. Thomas, please.

ERMA THOMAS was called as a witness by and on be-

half of the plaintiffs and, having been first duly sworn,

was examined and testified on her oath as follows:

DIRECT EXAMINATION

BY MS. WEYAND:

Q. What is your name? A. Mrs. Erma Faye Thomas.

Q. Where do you live? A. Tyler, Texas.

THE COURT: I am sorry. I will have to ask you to

keep your voice up, please, so I can hear.

BY MS. WEYAND:

Q. By whom are you employed?

tric.

MR. BATTLE: Excuse me. I don’t mean to interrupt,

but did you get an answer to the preceding question? If

so, I would like for it to be read.

THE COURT: As to where she lived?

MR. BATTLE: Yes, sir. I didn’t hear the answer.

THE COURT: Tell counsel where you live.

THE WITNESS: Tyler, Texas.

THE COURT: I am sorry. I thought I understood the

first time, I am positive I didn’t the second time. Say it

again.

A. General Elec-

ee ee — ——

491

492

415

THE WITNESS: Tyler, Texas.

THE COURT: Tyler, Texas.

BY MS. WEYAND:

Q. By whom are you employed?

tric.

Q. When did you start to work for the General Elec-

tric Company? A. May 10, 1971.

Q. What plant did you start to work in?

Tyler plant.

Q. What classification of a job did you hold?

A. Tube fabrication.

Q. Are you still on the tube fabrication job? A. I

am.

Q. You have worked continually with that job through-

out your employment, is that correct? A. Yes, ma’am.

Q. Did you get pregnant during your employment with

General Electric? A. Yes, I did.

Q. When did you get pregnant? A. It was the latter

part of July or the earlier part of August.

Q. Of what year? A. Of ’71.

Q. Did you notify General Electric that you were preg-

nant?

A. I notified them after I had been to the doctor and

the doctor told me I was six weeks, and then I took this

notice to the nurse of the plant.

Q. Do you know the name of the nurse to whom you

took it? A. I know her first name is Sherry. I don’t

remember her last name.

Q. How long did you continue to work without any-

body asking you to stop work? A. Well, I worked up

until the day before the baby was born.

Q. All right. .

I would like to have the marshal show you Plaintiffs’

Exhibit 48.

A. General Elec-

A. The

493

494

416

I ask you if you received a copy of that notice?

A. Yes, I did.

Q. How was that notice delivered to you?

supervisor gave it to me.

Q. Who was your supervisor? A. Harry Poulan.

Q. And did he say anything to you when he gave it

to you? A. He read through it and he told me that

this date would be the last day that I would be — would

have to report to work.

Q. And what date was that he told you would be the

last day you would have to work?

THE COURT: Is it on there, Mrs. Thomas? You may

look at that.

THE WITNESS: No, it is not on here. I don’t remem-

ber the date.

BY MS. WEYAND:

Q. Will you read that? It is a very poor copy, I must

say.

THE COURT: You may approach the witness and point

out the date you are referring to, if it is on there.

THE WITNESS: You want me to read it?

MS. WEYAND: Yes.

THE WITNESS: Just that?

“Dr. Orten advised that she may continue her regular

duties until the 2/18/72.”

BY MS. WEYAND:

Q. Had your doctor advised you that you had to stop

work February 18, 1972? A. No, ma’am.

Q. What had your doctor told you, if anything?

A. He told me that I could work as long as I could if it

don’t bother me, if I had no trouble or nothing.

Q. When you got this notice what did you do?

A. Well, I looked at my supervisor and I told him I hadn’t

seen that before and I was wondering if it was, you know,

really true or not.

A. My

— ee, re

~~ ee ee ee ee eee —

-_— ——

495

417

Q. What did he say? A. He told me that that

would be my last day. And he fooled around and walked

off.

Q. Did you do anything else about it? A. Well, no.

Q. Did you actually stop work on 2/18? A. Well,

before that date we got this other letter from the com-

pany saying that I could work on up until my doctor said

I could.

Q. Do you know how you got that letter? A. Well —

Q. Did you go to the union? A. It wasn’t in a

letter. |

Q. Did you go to the union about the fact that you

didn’t want to stop work? A. Yes. I went to the

union.

Q. Yes.

And then you got a letter that you didn’t have to stop

work, is that right?

A. I didn’t get a letter. My supervisor told me.

Q. Your supervisor told you? A. Yes, ma’am.

Q. Now, I would like you to look at Plaintiffs’ Exhibit

50.

Could you tell me who Mr. Pettey is?

President of our union.

Q. President of your union? A. Yes, ma’am.

Q. And you are the Erma F. Thomas he is talking

about in there, are you? A. Yes, ma’am.

Q. And he wrote that, you went to see him before that

or talked to the union about the fact that you didn’t want

to stop work, is that right? A. Yes, ma’am.

Q. And then after that letter was written the foreman

came and told you you could work? A. Yes, ma’am.

Q. How long did you work?’ A. Well, I worked up

until the day before the baby was born. I worked a full

shift that day and had the baby the next.

A. He is the

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497

418

Q. What shift do you work?

Q. And what day of the week was that last day you

worked before your baby was born? A. It was Friday.

Q. It was a Friday.

What time did you go to the hospital? A. I don’t

know exactly. It was around 10:00, I guess.

Q. About 10 o’clock that night you went to the hos-

pital? A. Yes.

Q. Yes.

Now, how long did you stay in the hospital? A. Three

days.

Q. And when did you try to go back to work first

after the baby was born? A. It was four weeks after.

Q. And did you talk to your doctor about whether it

was all right to go back? A. Yes, ma’am. I talked to

him.

Q. What did he say? A. He told me that I could

go back if I wanted to, if I felt like it.

Q. Did he give you a certificate you should show the

company? A. Yes, ma’am.

Q. And the certificate said that you were cleared by

him to go back to work? A. Yes, ma’am.

Q. And what was your doctor’s name?

Q. And did you take that certificate to the company?

A. Yes, ma’am.

Q. Did they let you go back to work? A. No.

The nurse told me that she would have to check with

somebody, and she called and she then came back and told

me I would have to wait until I had my six-weeks check-

up before I could come back to work.

Q. Did you wait until you had your six-weeks checkup?

A. Yes, ma’am.

Q. Then you went back to work?

Q. All right.

That is all the questions I have.

A. Yes, ma’am.

A. From 7:00 to 3:30.

A. Dr. Orten.

ee

ee —

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499

419

THE COURT: All right.

Is there any cross-examination, gentlemen?

MR. KAMMHOLZ: May we have a moment, Your

Honor?

MS. WEYAND: Maybe I should show her the claim she

filed. I am sorry.

Would the marshal show the exhibit, the witness Exhibit

WW to the stipulation, please?

THE COURT: Well, it is not necessary. Is it just to

identify it?

MS. WEYAND: Yes. I have a copy here if she would

like to look at it.

THE COURT: All right.

BY MS. WEYAND:

Q. Is this the form of claim you filled out? A. Yes,

ma’am.

Q. Is that your signature on the first page? A. Yes,

ma’am.

Q. And on the next page, did you take this to the

doctor, is that his signature? A. Yes, ma’am. |

Q. And when you got this from the doctor did you

file it with the company? A. Yes, ma’am.

Q. And I want you to look at Plaintiffs’ Exhibit —

well, you got a letter from the company denying your

claim, did you? A. Yes.

Q. And you have never been paid? A: No, ma’am.

Q. But the company did pay your doctor and hospital

bill when you had the baby? A. Yes, ma’am.

MS. WEYAND: That is all the questions I have.

THE COURT: Gentlemen, any cross-examination?

Let counsel see that, please.

MR. KAMMHOLZ: May I see this?

THE COURT: PX-WW to the stipulation, gentlemen.

Any cross-examination?

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MR. KAMMHOLZ: We have no questions, Your Honor.

THE COURT: Unless I hear an objection Mrs. Thomas

will be excused.

Thank you.

Call your next witness, please.

MS. WEYAND: Mrs. Furch, please.

EMMA FURCH was called as a witness by and on be-

half of the plaintiffs and, having been first duly sworn,

was examined and testified on her oath as follows:

DIRECT EXAMINATION

BY MS. WEYAND:

Q. Please state your name.

Q. Where do you live?

Q. By whom are you employed?

Electric Company.

Q. When did you start work for the General Electric

Company? A. October 13, 1966.

Q. What is your present job with the General Electric

Company? A. Set up.

Q. Set up? A. Yes.

Q. What was your job when you were first employed?

A. Tube cutting-bending.

Q. You have held various different jobs, have you, dur-

ing the time? A. Yes.

Q. How many children do you have?

A. One.

Q. How old is this child? A. She is 15.

Q. While you were employed by General Electric did

you become pregnant in 1970 or °71-’72? A. Yes.

Q. When did you become pregnant? A. °72, I be-

lieve it was.

Q. In ’72.

Do you know what your expected delivery date was?

A. July 6th.

A. Emma May Furch.

A. Tyler, Texas.

A. The General

ES

502

503

421

Q. How long did you continue to work during your

pregnancy? A. I worked up until about the fifth —

about the fifth month.

THE COURT: I am sorry. Did you say February?

THE WITNESS: The fifth month.

THE COURT: To the fifth?

THE WITNESS: Yes, sir.

BY MS. WEYAND:

Q. What happened in the fifth month that you ceased

work?

A. I started threatening a miscarriage and I had to stop.

Q. Did your doctor hospitalize you? A. At first he

didn’t. I left work. I worked that Wednesday.

Q. What date? Do you remember the date that you

worked? A. It was possibly the 12th because I was

hospitalized on the 14th.

Q. Of August? A. Which was a Friday, April.

Q. Of April? A. Yes.

Q. 12th of April? A. Yes.

Q. You were hospit: .zed? A.

hospitalized.

Q. You worked the 12th and went to the hospital the

14th? A. Yes.

Q. How long did you stay in the hospital? A. Through

the 17th. I was first hospitalized on the seventh.

Q. The seventh?

A. Yes.

Q. And what day did you work up to before April 7?

A. The fifth.

Q. You worked until April 5 and went in the hospital

on April 7? A. Yes.

Q. Did you deliver while you were in the hospital?

A. No. I stayed there until the 11th and the doctor

thought maybe I could keep the baby, so he sent me home

on complete bedrest.

14th of April I was

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505

422

Q. On the 11th? A. Yes.

Q. And you had complete bedrest? A. Yes.

Q. Did you go back to the hospital again? A. Yes.

On the 14th, which was the next Friday, I started having

labor pains. And then I went back to the hospital and

the next day I delivered.

Q. And what did — did the baby survive? A. No.

Q. Was it stillborn? A. Yes.

Q. How long did you stay in the hospital? A. Un-

til the 17th.

Q. And then you went home, did you? A. Yes.

Q. Did you go back to work? A. No.

Q. Did you got to the hospital again?

Wednesday I started having chest pains and I tried to con-

tact my obstetrician and he was busy at the time. I con-

tacted my general, you know, family physician.

He gave me an appointment for that Friday evening to

come in for a check. And so I went. He checked me

and found that I had pulmonary embolism, which was a

blood clot in my lungs, and he hospitalized me again im-

mediately, the same day.

Q. How long were you in the hospital that time?

A. Until the 29th.

Q. When did you return to work?

July, I believe it was.

Q. All right.

I would like to have the marshal show the witness Ex-

A. The 6th of

hibit XX to the stipulation and ask her if the signature on

that is her signature?

A. Yes, it is.

Q. And you filled out this claim form, did you?

A. Yes.

Q. And you took it to your doctor, did you? A. Yes.

Q. And will you look at the second page. Is that his

signature? A. Yes, it is.

A. Yes. That

506

423

Q. And do the dates that he states there that you were

disabled represent the period from the time you had your

pulmonary embolism until you went back? A. Yes.

Q. And they don’t cover the period that you were off

for miscarriage, does it? A. No, it doesn’t.

Q. And he told you it was not due to pregnancy as he

states there, is that correct? A. Yes. That’s right.

Correct.

Q. Now, I want you to look at Exhibit YY and ask

you if you received that notice from the company?

A. Yes, I did.

Q. And you have not been paid the claim? A. No.

Q. And you did file a grievance about it?

A. Yes.

Q. Yes.

The company did pay your hospital and doctor bills in

connection with all the matters that you have mentioned?

A. They did.

Q. That is all the questions I have.

THE COURT: Any cross-examination, gentlemen?

MR. KAMMHOLZ: Your Honor, with reference to Plain-

tiffs’ XX, the authenticity has been stipulated, I am advised

by Mr. Strauss.

THE COURT: Well, the witness just testified that that

was the claim tht she filed.

MR. KAMMHOLZ: I make reference particularly to the

second page and the certification by the doctor.

THE COURT: Oh.

MS. WEYAND: This is part of our stipulation.

MR. KAMMHOLZ: As to authenticity, Your Honor.

We object on the ground that it is hearsay as to the alleged

reason for absence in that the physician’s certification has

not been authenticated. He is not a witness here and it is

hearsay.

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508

424

THE COURT: All right.

Overruled.

MR. KAMMHOLZ: We have no questions.

THE COURT: All right.

Unless I hear an objection the witness will be excused.

Thank you.

(The witness stood aside.)

THE COURT: Call your next witness. 509

MS. WEYAND: Mrs. Williams, please.

MARY WILLIAMS was called as a witness by and on

behalf of the plaintiffs and, having been first duly sworn,

was examined and testified on her oath as follows:

DIRECT EXAMINATION

BY MS. WEYAND:

Q. Will you state your name, please? A. Mary Wil-

liams.

Q. Where do you live? A. Roanoke, Virginia.

THE COURT: Could you keep your voice up a little,

please?

BY MS. WEYAND:

Q. By whom are you employed? A. General Elec-

tric.

Q. When did you start work for the General Electric

Company? A. October 26, ’°71 — pardon me, ’70.

Q. What? A. October 26, ’70.

Q. 1970. 510

When you went to work were you given an employee

handbook? A. Yes.

Q. I would like to have the marshal show, I believe he

has the original, 17-B. I don’t know if she will recognize

the Xerox copy of the same. A. Yes.

Q. This is the handbook. He will show you the actual

handbook. A. Yes. That’s right.

425

Q. You were given an employee handbook of that sort?

A. Yes.

Q. And do you remember the circumstances in which

you were given the employee handbook? A. Orientation,

you were given forms.

Q. A company representative at an orientation session

gave you the handbook? A. Yes.

Q. Did they make any explanation to you about what

this handbook was to be used for? A. Yes.

Q. What did they tell you? A. It has the general

rules and, well, things you would want to know about

working. Just something you would relate to your job.

Q. Do you know what this handbook provided in re-

gard to pregnancy? A. No. I didn’t take interest in

it because I wasn’t planning to become pregnant.

Q. Did you later become pregnant? A. Yes, I did.

Q. When did you become pregnant? A. In the lat-

ter part of June, °71.

Q. How long did you work during your pregnancy the

first time you went off? A. Until August — well, I

was hospitalized August 4.

Q. August 4.

Did your doctor tell you why you were hospitalized?

A. I was having complications.

Q. And how long did you stay in the hospital?

A. Five days.

Q. Did you go back to work after you got out of the

hospital? A. Not immediately. I was out 11 days.

Q. Then you went back to work? A. Yes.

Q. How long did you continue to work? A. Until

September 13.

Q. And on September 13 how did you happen to cease

work? A. I was having more complications and I went

to my gynecologist and we talked and he advised me to

discontinue my work.

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426

Q. And he advised you to cease work. And you did

cease work, is that correct? A. Yes.

Q. Did he give you any other advice as to how you

were to take care of yourself at the time he took you off

of work? A. Well, I was to take things easy, you know,

not exert myself.

Q. Did you do your housework during that period?

A. No, I didn’t.

Q. Did you go out of the house, in the car or to the

store or anything? A. No. I didn’t make any trips

to the grocery store.

Q. You stayed at home? A. Yes.

Q. How much time did you spend in bed? A. I

was either on the bed or on the couch most of the time.

Q. Did you have a baby? A. Yes.

Q. When was the baby born? A. February 22, 1972.

Q. And what you have described about not doing house-

work and not going out in the car was true in the time

you went off in September until the baby was born, is that

correct? A. Yes.

Q. About being on the bed or couch most of the time?

A. Yes.

Q. When did you go back to work?

I believe, or 27.

Q. When did your doctor clear you to go back to work?

A. It was in the fourth week after I had my baby.

Q. And you went to the doctor at that time?

A. Well, I called General Electric. They advised me if I

waited to come back to work to call my physician and

get his approval. I did so and he approved and I called

the personnel back and they called my foreman to see if

they could use me, if it wasn’t a lack of work. So I went

back to work.

Q. Now, what kind of a job do you have? A.

and work with my hands. I assemble plastics.

513

A. March 26th,

514

I sit

427

Q. How large are the pieces of plastic you assemble?

A. They vary, but none of them are over —

Q. Very small? A. Very small.

Q. Light? A. Yes.

Q. This has been your job the whole time you worked

at General Electric, has it? A. Yes.

Q. It was your job when you got pregnant? A. Yes.

Q. I would like to have you look at Plaintiffs’ Exhibit

TT, stipulated, and tell me whether or not that is your

signature on the first page? A. Yes, it is.

Q. And would you look at the second page and tell me

if that was the form which you took to your doctor, he

filled out and signed? A. Yes, it is.

Q. And did you show it to the company, took it to

the company then, did you? A. Yes.

Q. And did they pay the claim? A. This?

Q. Yes. A. No.

Q. They did not pay the claim.

Company did pay your hospital and doctor bill, is that

correct? A. Yes.

Q. But they have never to date paid you any disability

for the period you were absent? A. No.

MS. WEYAND: I believe that is all the questions I have.

THE COURT: Any cross-examination?

MR. KAMMHOLZ: We have several questions, Your

Honor.

CROSS-EXAMINATION

BY MR. KAMMHOLZ:

Q. Mrs. Williams, while you have before you the docu-

ment that is marked Exhibit TT, and calling your attention

to the second page, does your doctor’s signature appear,

Julien H. Meyer? A. Yes.

Q. He was your doctor? A. Yes.

515

516

428

Q. And above his signature, a few lines above, I call

your attention to the printed statement, “The patient has

been continually disabled from 9/14/71 through 6/72.”

Do you have an explanation as to why the 6/72 appears

there?

THE COURT: I am sorry, I didn’t hear you, Mrs. Wil-

liams.

THE WITNESS: I haven’t answered yet.

THE COURT: Oh.

THE WITNESS: That is June. The reason that appears

like that was because my due date was March Ist and he

was assuming that I would be out two months or eight

weeks and that would bring that up to —

BY MR. KAMMHOLZ:

Q. When did you return to work? A. March. 27.

Q. When was the baby born? A. February 22nd.

Q. You indicated something about complications. What,

if I may ask, were the complications in connection with

the pregnancy? A. I was having cramps and bleeding.

Q. I am sorry. What was the last? A. Bleeding.

MS. WEYAND: Your Honor, this witness has express-

ed to me a reluctance to go into details in a public presen-

tation. She will be very happy, if they wish, to go into

details in private.

THE COURT: It may not be necessary.

MR. KAMMHOLZ: I have no further questions.

THE COURT: I didn’t think so.

Any redirect?

MS. WEYAND: No.

THE COURT: Unless I hear an objection Mrs. Williams

will be excused.

Thank you, ma’am.

Call your next witness, please.

(The witness stood aside.)

MS. WEYAND: Mrs. Hall, please.

517

429

BARBARA HALL was called as a witness by and on be-

half of the plaintiffs and, having been first duly sworn,

was examined and testified on her oath as follows:

DIRECT EXAMINATION

BY MS. WEYAND:

Q. What is your name? A. Barbara Hall.

Q. Where do you live? A. Roanoke, Virginia.

Q. By whom are you employed? A. General Elec-

tric.

Q. When did you first become employed by General

Electric? A. April 4, 1966.

Q. Did you receive an employee handbook at the time

you went to work? A. Yes.

Q. Did you receive another employee handbook during

the time you worked there? A. Yes, ma’am.

Q. I would like to have you look at Plaintiffs’ Exhibit

17-B and ask you if you received that handbook?

A. Yes, ma’am.

Q. Do you remember how you got that handbook?

A. They mailed it.

Q. It was mailed to you by General Electric?

A. Yes, ma’am.

Q. Yes.

Do you remember about when that was mailed to you?

A. Not really. I would say maybe around ’70, but I am

not sure.

Q. Some time around ’70 you got that in the mail.

Did you get pregnant during the period you worked for

GE? A. Yes, ! did.

Q. When did you get pregnant?

of March, 1971.

Q. How long did you work during your pregnancy?

A. Up until the beginning of my sixth month.

A. About the first

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519

430

Q. Did you discuss with your doctor how long you

could work? A. Yes.

Q. What did your doctor tell you? A. He said as

far as he was concerned as long as I felt good; left it up

to me.

Q. And was there any time you didn’t feel good?

A. No.

Q. How did you happen to cease work at the end of

your sixth month? A. I took a note to the dispen-

sary saying when my baby was due and the nurse said this

will be your last working day.

Q. Who was the nurse? A. Fern Slaughter.

Q. When did you take the note, what your due date

was? A. I probably took it about when I was proba-

bly a couple of months, right after I found out I was preg-

nant.

Q. At that time the nurse advised you how long you

could continue work, is that correct? A. Right.

Q. Do you remember the conversation you had with

her? A. Well, just told her how happy I was and she

said this will be your last due date — working day, rather.

Q. Did you try to file a claim covering the period you

were off for sickness for pregnancy? A. Yes, I think

I did.

Q. Do you know whether the first claim you filed was

accepted by the company, whether they took the form and

let you turn in the form that you prepared? A. They

sent it back saying it did not cover maternity benefits.

Q. I want you to look at Plaintiffs’ Exhibit PP with

the stipulation, please.

Would you tell me if that is your signature on the front

page? A. Yes, it is.

Q. Would you look at the second page and tell me if

that is the signature of your doctor? A. Yes, it is.

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521

431

Q. Did you try to turn in a form to the company be-

fore you turned in this form? A. I am not sure.

Q. Another claim form, this is the first claim form you

sent the company, was it? A. Yes, I turned in two.

Q. You turned in an earlier one. You tried to turn in

another one? A. Yes. That is the one they gave back.

Q. That one they took? A. Right.

Q. Then you later turned in this claim form, is that

correct, and got a letter from the company saying they

wouldn’t pay this, is that correct? A. Right.

MR. KAMMHOLZ: Your Honor —

THE COURT: It is a little leading, but it is just to

save time.

MR. KAMMHOLZ: Counsel is leading.

BY MS. WEYAND:

Q. When was your baby born?

1971.

Q. From the time, the end of the sixth month until

the baby was born were you in any way unable to work?

A. No.

Q. And your doctor did not tell you you couldn’t work?

A. Right. He said just so I felt okay.

THE COURT: I am sorry. I can’t understand you.

THE WITNESS: He said just as long as I felt okay.

BY MS. WEYAND:

Q. And you felt okay until your baby was born, is

that correct? A. Right.

Q. Did you have any complication of any kind during

your pregnancy? A. No, ma’am.

Q. Did you have any complication of any kind in con-

nection with your childbirth? A. No.

Q. How long were you in the hospital?

days.

A. November 21,

A. Five

$22

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432

Q. Did you try to go back to work after you got out

of the hospital? A. They told me to wait until my

six weeks was up, after I went to have my checkup, and

call in, which I did, and they told me to return back to

work in two weeks.

Q. Who told you that? A. Mrs. Neal.

Q. She is? A. She is the secretary in personnel,

I think.

Q. To? A. Mr. Peterson.

Q. And he is the Director of Personnel, is that correct?

A. Yes, ma’am.

MS. WEYAND: That is all the questions I have.

THE COURT: Any cross?

MR. KAMMHOLZ: No questions, Your Honor.

THE COURT: Unless I hear an objection Mrs. Hall will

be excused.

Thank you, ma’am.

(The witness stood aside.)

THE COURT: Call your next witness, please.

MS. WEYAND: Mrs. Wiley, please.

DORIS WILEY was called as a witness by and on behalf

of the plaintiffs and, having been first duly sworn, was

examined and testified on her oath as follows:

DIRECT EXAMINATION

BY MS. WEYAND:

Q. Will you, please, state your name?

Wiley.

Q. Where do you live?

Q. By whom are you employed?

A. Doris

A. Roanoke, Virginia.

A. General Elec-

Q. When did you first start working for General Elec-

A. April 15, 1966.

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433

Q. What was your job when you started working?

A. When I started I worked in silk screen.

Q. And did you become pregnant during the time that

you were working for General Electric? A. Yes.

Q. When did you become pregnant? A. October,

1970.

Q. When you went to work for General Electric did

you get a copy of the employee handbook? A. Yes.

Q. Did you get another one during the time you were

working for them? A. Yes. Some time later.

Q. When did you get the second one? A. I don’t

know.

Q. How did it come to you? A. Through the mail.

Q. Will you look at 17-B and see if that is the copy

that you got through the mail? A. Yes. This looks

like it.

Q. Did your doctor advise you to stop work during

your pregnancy?

A. No.

Q. Did you discuss with him how long you could work?

A. No.

Q. When did you stop work? A. April 30, 1971.

Q. How did you happen to stop work on April 30?

A. Well, I got a notice, I went to my doctor and got the

slip with my delivery date on it.

Q. Expected delivery date? A. That’s right. And

I took it to the dispensary to the nurse and I gave it to

her.

Q. Do you remember what nurse you gave it to?

A. Mrs. Slaughter.

Q. Mrs. Slaughter? A. Yes.

Q. And you gave it to her, and what did she say?

A. She looked at the date that the baby was to be deliv-

ered, which was July 28, 1971, and then she walked to

the calendar, and she was to see when six months would

525

526

434

be, you know, and first it would have been in the middle

of the week but she let me work until the end of that

week.”

Q. Told you — A. To Apri! 30. She said April

30 would be your last day.

Q. Your last day? A. Yes, ma’am.

Q. Did your doctor at any time before April 30 advise

you to stop work at April 30? A. No.

Q. Did your doctor at any time advise you to take it

easier or not engage in your usual activities? A. No.

Q. When was your baby born? A. July 26, 1971.

Q. Did you have any complications? A. No.

Q. Neither before it was born nor at the time it was

born? A. No.

Q. How long were you in the hospital? A. Five

days.

Q. When did you go back to work? A. September

20, 1971.

Q. Did you make an effort to be back before then?

A. No. It was my understanding that you couldn’t go

back until your baby was eight weeks old, and when I had

my six-weeks checkup I called the personnel office and

told her when my baby was born and that I had my six-

weeks checkup. So she told me that she would call my

supervisor and see when I could come back and that she

would call me. |

And later on that day she called me and told me to re-

turn to work September 20, which would have been eight

weeks.

Q. You did go back that day? A. Yes.

Q. What kind of a job were you doing before you be-

came pregnant? A. Well, I sit down, engraving.

Q. What? A. Engrave.

Q. Engrave.

$27

528

435

Did this involve lifting any heavy objects? A. No.

Q. How long had you been or engraving when you be-

came pregnant? A. I worked there six years.

Q. All the time you were there? A. Yes. That’s

right.

Q. I would like to have the marshal show you Plain-

tiffs’ Exhibit XX for identification to the stipulation and

ask you whether that is your signature on the first page?

A. Yes, it is.

Q. Will you look at the second page and tell me if

that is your doctor’s signature? A. Yes. This is his

signature.

Q. When you got that form signed by the doctor did

you file it with the company, give it to GE as your claim,

did you? A. Well, when I, let’s see, I left this form

at the doctor’s office and they mailed it in.

Q. Yes.

Now, did you hear from the company about it?

A. Yes. I received a letter at first thanking them for my

claim and then another one saying that they didn’t, you

know, they weren’t going to pay it.

Q. Couldn’t pay the claim? A. That’s right.

Q. Did the company pay your hospital and doctor’s

bill? A. Yes, they did.

MS. WEYAND: That is all the questions I have.

THE COURT: Any cross-examnation, gentlemen?

MR. KAMMHOLZ: No questions, Your Honor.

One moment.

THE COURT: All right.

MR. KAMMHOLZ: Your Honor, may I withdraw the

“no questions,” Your Honor?

THE COURT: That is all right.

529

436

CROSS-EXAMINATION

BY MR. KAMMHOLZ:

Q. Mrs. Wiley, have you had another child since the one

you described in your testimony? A. No.

MR. KAMMHOLZ: No further questions.

THE COURT: Any redirect?

MS. WEYAND: No.

THE COURT: Unless I hear an objection the witness

will be excused.

Thank you, ma’am.

Call your next witness.

(The witness stood aside.)

MS. WEYAND: Mr. Delano, please.

ROBERT GORDON DELANO was called as a witness

by and on behalf of the plaintiffs and, having been first

duly sworn, was examined and testified on his oath as

follows:

530

DIRECT EXAMINATION

BY MS. WEYAND:

Q. Will you, please, state your full name?

A. Robert Gordon Delano.

Q. Are you an employee of the — where do you live?

A. Salem, Virginia.

Q. Are you an employee of the General Electric Com-

pany? A. Yes, I am.

Q. When did you start to work for the General Electric

Company? A. I started in August of 1956.

Q. Have you been continuously employed since that

date? A. Yes, I have.

Q. Are you an officer of the union? A. Yes, I am.

Q. What position do you hold in the union? A. I

currently hold the position of Administrative Chief Steward.

Q. What is the Local number at Salem? A. Local

161.

531

437

Q. And this is affiliated with the International Union

of Electrical — A. Yes, that’s right.

Q. How long have you been Administrative Chief Assist-

ant?

A. My current office has been since early 1970.

Q. And what do your duties involve as Chief Adminis-

trative S.eward? A. Well, my duties involve a number

of things. I take care of the administrative paperwork, of

the processing of grievances. I advise shop stewards on

filing of grievances, the wording of grievances.

I am Chairman of the Steward Council which is made

up of all the stewards in the shop, which we have about

70 of them currently.

And I take care of arbitration cases, act as counsel for

the union in arbitration cases.

I negotiate with the company at the second level of the

grievance procedure.

And I work or negotiate with the company on local

supplements and other agreements that we may enter into

locally.

Q. Did it come to your attention that some of the women

were desirous of filing claims for sickness and accident bene-

fits for periods they were disabled by pregnancy?

A. Yes, it did.

Q. When did this first come to your attention, as far as

you best can recall? A. The best of my recollection

it was in August of 1970, I believe it was 1971, August,

1971.

I had a discussion with one of our Chief Stewards, our

First Chief Steward by the name of John McDaniels, and

he said he heard that the company was not accepting

claims. I researched some of our books and I called our

office in New York, our insurance specialist in New York

City, Jimmy Lawalin and advised him of the problem we

were having.

532

438

And he in turn talked to our attorney in —

MR. KAMMHOLZ: I object.

THE COURT: Don’t tell us any conversation, please.

THE WITNESS: All right.

BY MS. WEYAND:

Q. Did there come a time when the company did ac-

cept claims? A. Yes, there did.

Q. Were you notified by someone how you could file

the claims with the company? A. Yes. I received a

notification from Robert Friedman that the company would

now accept these claim forms.

Q. And they did accept them?

they did.

Q. Do you remember when that was?

A. To the best of my recollection, it was a month or

so, two months later probably, about two months later.

Q. And you have heard the young ladies from Salem

testify, Mrs. Hall, Mrs. Wiley — A. Yes, ma’am.

Q. And those were claim forms that the company ac-

cepted? A. Yes. They accepted those claim forms,

yes.

Q. Those are the first ones, as far as you know, that

were filed in Salem? A. Yes. I believe there was one

or — Alberta Smith, I believe, that filed one about that

time.

‘ Q. Did any of these employees file grievances when

their claims were denied? A. Yes, they did.

Q. Did you process these grievances? A. Yes, I

did.

Q. Would you describe what processing you engaged in?

A. Well, what we did in processing the grievances, first of

all we advised the stewards through our Chief Stewards of

the company that they were not paying claims.

A. Yes, ma’am,

533

534

439

We advised them if they knew any women that had

similar problems of pregnancy where the company did

not, would not pay or wanted to file a claim, they should

de so. If the company refused a claim then she should

file a grievance. And I worked up some language and sent

it out to our Chief Stewards who in turn were supposed

to correspond this to our stewards to let them know how

to word the grievance.

Q. And the company denied the grievances?

A. Yes, ma’am, they did.

Q. And you took those grievances to third step?

A. Yes, we did.

Q. Would you describe what is known as the third step

in grievance procedure in General Electric? A. Yes.

If I could — could I start at one?

Q. If you will, please. A. The first step, the pro-

cedure is that the steward, at the foreman level. The sec-

ond step of the procedure is your union’s officers and the

company representatives, normally from employee relations

at the local location.

The third step of the grievance procedure is the head-

quarters level of the General Electric Company and head-

quarters level of the union office in New York.

Q. And these grievances were proposed, Mrs. Hall, Mrs.

Wiley and Mrs. Williams were processed through the

three steps? A. Mrs. Williams was not processed.

Q. The other two were proposed? A. Yes, they

were.

Q. And there were other grievances filed by other em-

ployees through the third step? A. Yes.

Q. And you were unsuccessful? A. That’s right.

Q. That is all the questions I have.

THE COURT: Any cross-examination?

MR. KAMMHOLZ: One moment, please, Your Honor.

Just a few.

535

526

440

THE COURT: I have one.

May I? Then it may be you can follow.

When you say the company not accepting claims, you

mean they wouldn’t consider them, Mr. Delano?

THE WITNESS: You are taling to me?

Yes, when they tried to turn the claims in they said the

girls in the office looked at it and says, “No, we do not

accept claims on pregnancy. Here.” Gave the claim back.

THE COURT: Through your good offices, or some-

body’s, they finally got to consider them?

THE WITNESS: Yes.

THE COURT: And rejected them?

THE WITNESS: Yes.

THE COURT: All right.

A lot of progress.

All right, sir.

CROSS-EXAMINATION

BY MR. KAMMHOLZ:

Q. Mr. Delano, since when have you been the Adminis-

trative Chief Steward? A. Well, my current office has

been since 1970. Of course we are reelected every two

years, you know, if the membership agrees. I held the

office of Administrative Chief Steward once before, but I

took a year’s rest and went out of office and then came

back into the office the next year.

Q. Prior to 1970 were you steward or — A. I

had been — well, I had had several offices, actually been

a shop steward on the floor in the area where I worked.

I had also been a trustee for a short period of time.

I had then what we call just a Chief Steward.

This was the job the Administrative Chief Steward be-

fore, you know. And also I had been an Assistant Chief

Steward before that time.

537

44)

Q. About what time frame are we talking about?

A. Okay. Well, I can put this in — I would have to guess

at the dates. I couldn’t give you exactly.

I first became Chief Steward, I believe it was in 1965,

I believe.

Before that I was an Assistant Chief Steward, 1964, I

believe.

I believe it was in 1963 that I was a trustee.

And before that time I was a shop steward in the plant,

just a regular shop steward.

Q. Thank you very much.

Your credentials are impressive.

You are familiar, are you not, with the General Electric

insurance plan? A. Yes, I am.

Q. I am holding the booklet in my hand.

Prior to the grievances which you filed in 1971 in con-

nection with claimed weekly disability benefits or absences

due to pregnancy or childbirth, the union had not filed

any such grievances; is that right? A. Not that I can

recall. I don’t recall those.

Q. Indeed the booklet to which I referred provides

specifically that weekly sickness and accident insurance

will not be payable for any absence due to pregnancy or

resulting childbirth or to complications in connection there-

with, you recall that? A. Yes.

Q. So when you did file grievances beginning in late

1971, was this predicated on your view that there was a

change in the law? A. Well, it was a combination,

combination of my thoughts, I guess. Just prior to that

time I had received some legal documents, or what we

call “Keeping up with the Law,” from our legal depart-

ment. And these documents I review every once in a

while and one night I happened to be reading one of these

documents and it come up about the case, the Cohen case,

442

443

and I was reading that and I read it and thought about it,

URT: ing, Miss W tle-

you know, and read a number of other cases, arbitration THE COURT: Good morning, Miss Weyand and gentle

men.

cases and so on and so forth. Then when these questions MS. WEYAND: Mr. DuBow is going to present the

come up about the company not accepting these claim next siete

forms I got to thinking about that and | picked up the

insurance book and read what it said in there.

And I put these things together and at that point I

called our people in New York.

538 Q. And thereupon you filed a grievance or some —

A. I didn’t find the grievances. They were there.

THE COURT: Miss Weyand, you will have to stand

when you address the bench, please, ma’am.

All right, Mr. DuBow.

Come around, please.

MR. DuBOW: Sherrie O’Steen.

© Yao qameed @e cient A. | enced SHERRIE ELIZABETH O’STEEN was called as a wit-

the grievances, yes, sir. ness by and on behalf of the plaintiffs and, having been

Q. On the basis of what you understood to be a change first duly sworn, was examined and testified on her oath

in the law? A. Well, I can give you my personal opin- as follows:

ion if that is what you want, yes. DIRECT EXAMINATION

Q. Yes. BY MR DuBOW:

That is all, Your Honor. Q. Will you, please, state for the record your name?

THE COURT: I can’t resist it. A. Sherrie O’Steen.

You are in error. It was not a change in the law. Q. And your address?

THE WITNESS: I don’t know that it was a change in 545 A. 918 Clark Street, Mayfield, Kentucky.

the law or not. Q. Do you have any children? A. Yes, sir.

THE COURT: I know. Q. How many? A. Two.

THE WITNESS: It was my interpretation that there Q. And their ages? A. Three and eight months.

was something wrong here. Q. Were you employed by General Electric? A. Yes,

THE COURT: Thank you. sir.

You may step down. Q. At what plant location? A. Portsmouth.

Call your next witness. Q. Portsmouth, Virginia? A. Virginia.

(The witness stood aside.) Q. And when did you start to work with General Elec-

: . : ; tric? A. June 1, 71.

a6 PROCEEDINGS Q. Okay.

(July 25, 1973) (Wednesday at 11 o'clock) What job position did you hold with General Electric?

THE CLERK: Civil Action 142-72-R. Martha V. Gil- A. Processor on an assembly line.

bert, et al., versus General Electric Company. Q. Now, did you become pregnant during your em-

Continued from yesterday. ployment with General Electric? A. Yes, sir.

546

547

t44

Q. And what date did you leave General Electric on

maternity leave? A. I left October 15.

Q. What year? | ae J

Q. Now, when did you give birth to your child?

A. November 21, ’72.

Q. Were there any complications relating to your birth

of your child? A. No, sir.

Q. And how long were you hospitalized? A. Five

days.

Q. Did General Electric pay your hospital bills?

A. Yes, sir.

Q. Who was your doctor? A. Dr. Leonard Davis.

Q. Where is he from? A. Portsmouth.

Q. And when did your doctor advise you to return to

work? A. When my child was six weeks old.

Q. And when did you return to work? A. When

the child was six weeks old, the first of January.

Q. Were you told anything by the General Electric

Company when you went off on maternity leave regard-

ing your return to work? A. Miss Short, the Person-

nel Manager, told me that I was to return to work when

the child was six weeks old, and if not, to call and let

them know why I could not return when he was six weeks

old.

Q. Now, did you have occasion to receive an employee

handbook 4 Portsmouth, Virginia plant? A. Yes, sir.

Q. And how did you get it? A. When I was hired.

Q. Did you read it? A. Yes, sir.

Q. I will ask the marshal to give you Stipulated Exhibit

U-3, Plaintiffs’ Exhibit 72-B.

THE COURT: 72-B?

MR. DuBOW: 72-B of plaintiffs’ exhibits.

Excuse me, 17-B, I am sorry, 17-B, employee handbook

of the Salem plant, and call your attention to page six,

the second column, where it says “Maternity Absence.”

548

549

445

Can you read that into the record, please, the first para-

graph only of “‘Maternity Absence”?

THE WITNESS: “‘It is the policy of the department

that pregnant employees will be required to terminate

active work at the end of the sixth month of pregnancy.

The employee may terminate active work at any time be-

fore the end of the six months if she so elects.”

BY MR. DuBOW:

Q. Now, what you have just read is the language in

the Portsmouth handbook. How does that compare?

A. It is exactly the same.

Q. Okay.

Now, after you received this employee — after you re-

ceived an employee handbook — you can hand that back

— after you received an employee handbook did you ever

have occasion to receive written information from General

Electric regarding a change in that policy? A. No, sir.

Q. Did you ever have occasion to see a notice posted

on any bulletin board regarding a change in that policy?

A. No, sir.

Q. Did you ever have occasion to hear an announce-

ment by General Electric regarding a change in that policy?

A. No, sir.

Q. Now, what month of your pregnancy did you work

through? A. I worked to my eighth month.

Q. How were you able to do this in light of this six-

month policy? A. Well, my sixth month I asked my

foreman if I could continue to work and he said —

Q. Who is that? A. Jim Overton was my foreman,

and he said he would go ahead and let me try to work on

to my eighth month.

Q. And why did you wish to work through to your

eighth month? A. I needed the money at home.

550

551

446

Q. And what was your rate of pay immediately before

you went off on maternity leave? A. I was making

2.65 an hour.

Q. How much a week? A. I was clearing $80 a

week.

Q. What sources of income did you have when you

first went on maternity leave in October of ’72? A. I

had no source of income.

Q. No source of income. What did you do while on

maternity leave regarding financial assistance?

A. Well, in the first few months I had no income and

then the first of December I filed for welfare.

Q. And when did you receive welfare assistance?

A. I received welfare in December.

Q. °72? A. Yes, sir.

Q. Now, before you received welfare assistance in De-

cember can you relate to the Court what happened to you

regarding your home, electricity? A. Well —

MR. KAMMHOLZ: If the Court please, I object. This

is irrelevant.

THE COURT: Well, I am inclined to agree with you.

My only hesitancy in sustaining it is I have just concluded

after going over your exhibits to overrule all objections to

them, and many of your exhibits go to the economic ef-

fect of a change in the company’s policy on the company.

And while I think that may well be irrelevant when you a

are talking about discrimination, if I am going to let that

in I think I ought to let this in.

The objection is overruled.

BY MR. DuBOW:

Q. Before you received welfare assistance in December

can you relate to the Court what happened to you regard-

ing your home electricity? A. Well, I had no way

to pay my electricity bill during the months before I re-

ceived welfare and it was cut off.

552

447

Q. And how long was it cut off?

a month and a half.

Q. Now, can you relate to the Court how that elec-

tricity cutoff affected you? A. My house was totally

electric. I didn’t have no refrigeration, no stove to cook

on, no lights in the house, and I had a small child.

Q. How did this affect you in food preparation?

A. Well, I wasn’t able to keep refrigerated food. I

couldn’t cook.

MR. KAMMHOLZ: May it be understood that I have

a continuing objection?

THE COURT: Yes.

MR. KAMMHOLZ: Thank you.

BY MR. DuBOW:

Q. Okay.

Now, before you received welfare assistance in December

of ’72 can you relate to the Court what happened regard-

ing the heating of your home? A. I had oil heat and

I wasn’t able to buy oil for the heat.

Q. And how long were you without heat?

month and a half.

Q. From when to when? A. From November un-

til I received my check in December.

Q. Okay.

Can you tell us what type of food you and your child

were eating immediately before you went on maternity

leave? A. I was eating three balanced meals a day,

meat and vegetables and milk for my little girl.

Q. And what was it after you went on maternity leave?

A. Sandwich meat and water for my little girl, plus I had

to go to a neighbor’s for two meals a day.

Q. Two meals a day? A. A week, excuse me.

Q. And how far away was this neighbor? A.

lived almost a mile.

A. For about

A. A

She

553

554

448

Q. How did you get there? A. Walked.

Q. Now, did you take any medications while you

were on maternity leave? A. With everything going

like it was I got into a nervious state and my doctor

gave me Librium, it was a nerve pill, so I could calm

down.

Q. Who prescirbed it? A. Dr. Davis.

Q. And again what was the reason you took these

medications? A. Because of my nerves. And at one

time I had to have a shot that knocked me cold.

Q. What other medical treatment did you receive?

A. I received a shot at one time that I got so bad he

was afraid I was going to lose my child, and he gave me

a shot to calm me down.

Q. Where did you receive this?

Hospital.

MR. DUBOW: No further questions. Wait a minute.

BY MR. DUBOW:

Q. How long did you work at General Electric after

you returned to work from your pregnancy, from your

delivery? A. I worked four months for General Elec-

tric.

Q. And was the plant at Portsmouth unionized?

A. No, sir.

Q. Thank you.

THE COURT: Mr. Kammholz or Mr. Strauss?

MR. KAMMHOLZ: Thank you, Your Honor,

CROSS-EXAMINATION

BY MR. KAMMHOLZ:

Q. How old are your children now?

years and eight months.

Q. You are divorced? A. Yes, sir.

Q. How long have you been divorced? A. I have

been divorced two weeks. A. Yes, sir.

A. At Bellevue

A. Three

555

449

Q. Ago? A. Yes, My divorce just went final.

Q. During the period that you have testified about on

direct examination when you were without electricity, was

your husband living with you? A. No, sir.

Q. Had you planned the baby? A. No, sir.

Q. The attorney on the other side showed you an ex-

hibit marked U-2 that has on its face Salem, Virginia, does it

not? A. Yes, sir.

Q. When did you first see that exhibit? A. Today.

Q. When you talked with the lawyers about your test-

imony? A. Yes, sir.

Q. You had never seen it when you worked for GE?

A. Not this one. I have one similar.

Q. Where did you get that one?

to me in court.

Q. The other one?

when they hired me.

Q. Do you still have it?

Q. Where? A. At home.

Q. You didn’t bring it with you? A. No, sir.

Q. Did you talk with the lawyers on the other side

about it? A. Yes, sir.

Q. Now, there is no problem in connection with your

returning to work — strike that question, please. When

did you return to work at GE? A. First of January.

Q. When was the baby born? A. November 21.

Q. What year? a Tm

Q. And you worked to what date prior to the time

the baby was born? A. October 15.

Q. I am sorry. A. October 15.

Q. And there was no difficulty in your continuing to

work until that date, was there? A. No, sir.

Q. No further questions.

THE COURT: All right. Any redirect?

A. It was handed

A. Oh, they gave it to me

A. Yes, sir.

559

450

MR. DUBOW: No further questions.

THE COURT: Unless I hear objection the lady will be

excused. Thank you, ma’am. You may step down.

Call your next witness. (The witness stood aside.)

MR. STRAUSS: The defendant withdraws Exhibits

Number 6, 9, 15, 43, 44, 45, and 46.

I would say, if I may at this time, with respect to De-

fendant’s Exhibit Number 14, which is a deposition of a

Dr. Wilbanks as to which there has been no objection, we

did not file with our exhibits the physical deposition, but

the deposition is on file with the clerk.

THE COURT: It is a de bene esse, is it?

MR. STRAUSS: I believe in view of the delay it is no

longer a de bene esse deposition, Your Honor. It was

taken about three months ago, as I recall.

I am asking that the deposition of Dr. Wilbanks be in-

corporated physically with our other.

THE COURT: Well, it is a little unusual, though, isn’t

it, to mark a deposition as an exhibit? You are entitled

to read it or have the Court read it and consider it, but

not as an exhibit. That is the usual procedure.

MR. STRAUSS: You would -

THE COURT: You want to be sure that I see it?

MR. STRAUSS: Exactly. That is all.

THE COURT: I will do that.

Now, that is 14, is that correct?

MR. STRAUSS: Yes, sir.

THE COURT: So you technically withdraw that?

MR. STRAUSS: I will be glad to.

THE COURT: Subject to what the Court has just said.

All right.

So you have now 6, 9, 14, 15, 43, 44, 45, and 46, is

that correct, sir?

MR. STRAUSS: Yes, sir.

560

451

THE COURT: Is there any objection?

MS. WEYAND: No objection.

THE COURT: All right.

As I have already indicated in my dialogue with Mr.

Kammholz, I have gone over the objection to the defen-

dents exhibits. I found that many of the defendant’s ex-

hibits go to the economic effect of a change of the policy

that they allegedly have in effect, and I must say I have

serious doubt as to, when you get around to talking about |

discrimination, whether dollars and cents mean anything.

Somebody will have to show me that it does before I

give much effect to it, which is why I permitted the

defendants to put on the evidence in reference to Mrs.

O’Steen.

I am going to consider all of it. As a consequence I over-

rule the objections made by the plaintiff to defendant’s ex-

hibits. And I have already ruled on the defendants objections

to the plaintiffs’ exhibits, because I think we should have a

full record, brt I don’t want the Court’s ruling to be interpret-

ed by your side as the Court’s conclusion that the matters are

relevant.

I am just not going to rule on that at this stage. I don’t know.

MR. BATTLE: If Your Honor please, just a small

point.

I think Your Honor misspoke in the beginning of that

ruling.

--"May Task the reporter to read back the first sentence

or two? I think it was an inadvertent statement that it

was defendant’s when you meant to say it was the plain-

tiffs’.

if you will read that back, I think we will pick it up.

I may be wrong.

THE COURT: Will you, Gil?

(The reporter read the excerpt referred to.)

561

452

THE COURT: I meant the plaintiffs. Mr. Battle,

that is a first. Anything else?

MS. WEYAND: I wanted to be certain that it was all

right to brief that fully, and I will not need to make the

objections when it is placed in the record, but we do

urge you to disregard it when it comes to the briefing of

the case.

THE COURT: Yes, indeed. If we get around to briefing.

* * * * *

CURRICULUM VITAE - ANDRE E. HELLEGERS, M.D.

562 & BORN:

563

June 5, 1926, Venlo, the Netherlands.

MARRIED:

Charlotte Frazer Lindsay Sanders, 4 children.

EDUCATION:

Stonyhurst College, England 1940-1944

Edinburgh University Medical School, 1944-1951

L.R.C.P., L.R.C.S., L.R.F.P.S., 1951

Belgian National Boards, Brussels, M.D., 1952

Diploma of Aviation Medicine, Paris University, 1953.

HOUSE STAFF:

Department of Obstetrics and Gynecology, The Johns

Hopkins Hospital, 1953-1956, 1959.

FACULTY APPOINTMENTS:

Intern to Associate Professor, Johns Hopkins University

1953-67.

Josiah Macy Research Fellow in Physicology, Yale Uni-

versity, 1956-57.

Lecturer in Population Dynamics, Johns Hopkins Univer-

sity, 1966-

Professor of Obstetrics-Gynecology, Georgetown Univer-

sity, 1967-

Professor of Physiology-Biophysics, Georgetown Univer-

sity, 1969-

Director of Population Research, Georgetown University,

1971.

453

OTHER ACTIVITIES:

Member, Josiah Macy Founation High Altitude Expe-

dition, Peru, 1958.

Senior Research Scholar, The Joseph P. Kennedy, Jr.

Memo Foundation, 1961-67.

Member, Research Advisory Committee, United Cerebral

Pal Foundation, 1964, 1970.

Consultant, Office of the Secretary of Health, Education

and Welfare, 1964-65.

Member and Deputy Secretary General, The Papal Com-

mission on Population & Birth Control, 1964-1966.

Member, President Johnson’s Committee on Population

and Family Planning, 1968.

Technical consultant, Population Reference Bureau, 1970-

Member, Study Section on Human Embryology and

Development, NIH, 1967-1971.

Member, National Advisory Child Health and Human De-

velopment Council, NIH, 1971-

SOCIETIES:

A.O.A.

Member, American Gynecological Society, 1971.

Honorary Fellow, South Atlantic Association of Obste-

tricians and Gynecologists, 1971.

Member, The Society for Gynecologic Investigation (presi-

dent, 1968).

Member, The Perinatal Research Society (President, 1971).

EDITORIAL BOARDS:

Georgetown Medical Bulletin, 1963-

American Journal of Obstetrics & Gynecology, 1963-70;

European Journal of Obstetrics & Gynecology, 1971-

Gynecologic Investigations, 1971-

* * = * *

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ANDRE E. HELLEGERS

was Called as a witness by and on behalf of the plaintiffs

and, having been first duly sworn, was examined and

testified on his oath as follows:

THE COURT: Doctor, I understand you just arrived.

Would you like 2 few minutes before you testify?

THE WITNESS: No, sir. That is fine, sir.

DIRECT EXAMINATION

BY MS. WEYAND:

Q. Will you, please, state your full name for the

record? A. Andre E. Hellegers, H-e-l-l-e-g-e-r-s.

Q. Where do you live? A. 10104 Newhall Road,

Potomac, Maryland, 20854.

Q. I would like to have the marshal hand Dr. Helle-

gers his curriculum vitae which is on file with the Court.

I have a copy if you would prefer to use the copy.

THE COURT: Yes, please.

BY MS. WEYAND:

Q. l ask you if you prepared this curriculum vitae?

A. Ye I have. I recognize it.

Q. 1. there anything that needs to be added to bring

it up to «ate? A. I am no longer on the Editorial

Board of the — oh, that’s right, it says 1970.

Yes, since October, 1971, I am the Director of the

Joseph and Rose Kennedy for the Study of Human

Reproduction at Georgetown.

Q. Would you state what your duties as Director

and what the Institute is concerned with? A. Well,

the Institute essentially studies the processes and the con-

sequences of human reproduction in the biological and

social and economic sense and has an ethics component

that deals with matters of ethics in modern biology and

medicine. And my functions are to coordinate various

activities.

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455

Q. Does your practice represent a specialty within the

field of obstetrics and gynecology? A. No. I am

an obstetrician-gynecologist and what is sometimes called

a fetal physiologist, but in terms of practice I have never

done any gynecology, that is to say dealing with non-

pregnant women. So it has been in obstetrics with a

heavy focus on the welfare of the unborn child.

And in terms of that I do consulting work only. This

is, I only see patients at the request of other doctors.

Q. Do the patients whom you see have a higher rate

of complications than —

THE COURT: Let me interrupt you at this stage.

Now, you are qualifying the doctor as an expert in the

field of obstetrics, is that correct?

MS. WEYAND: I also would like to qualify him as

an expert in the field of social and economic consequences

attendant to the medical care and socio-economic condi-

tion of the woman as doctors can see its effect on the

human fetus and on the mother.

THE COURT: Gentlemen, do you wish to cross-exam-

ine the doctor on his qualifications? Is there any objec-

tion to his qualifications in the field?

MR. BATTLE: We do not wish to examine him on

his qualifications.

THE COURT: All right.

The doctor is qualified.

BY MS. WEYAND:

Q. Do the patients whom you see therefore represent

women with a higher degree of complications and non-

routine cases than the average practitioner sees?

A. I think I would go further and say that I see nothing

but complications since I only consult with people that

take care of the normal.

Q. Approximately what percentage of the pregnant

patients do you see are employed in paid jobs outside

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the home when they become pregnant? A. Iam

sorry. I have never asked them that.

Q. You have no idea? A. I have no idea.

Q. Have you had occasion to advise any of them on

whether they should continue to be — A. Oh, yes.

Q. — employed? A. Yes.

Q. What kind of advice do you give them? A.

A. Well, I think the advice is usually based on common

sense, dependent on the job, and the usual advice is that

they may continue work until you decide that they may

not.

In other words, until something intervenes of which

you would say given these circumstances you should

work no longer.

Q. Is there to your knowledge any physiological

reason which warrants a rule that at any given stage of

pregnancy the pregnant woman should cease her paid

job? A. Depends totally on what the paid job is.

If she were to be a woman pilot I wouldn’t advise her

to fly in the ninth month. She would have difficulty

getting herself between the steering wheel and the seat.

So it is a question of common sense depending on what

the job is that she has.

Q. What kind of jobs do you think of that would re-

quire a rule which fixed a given stage of pregnancy as

the termination date? Can you specify the type of jobs?

A. No, I couldn’t specify. I would say that they would

be all such jobs in which girth becomes an impediment.

Going up telephone poles, down manholes, driving trucks.

It is a question of accommodating girth. |

Q. Does the pregnancy itself unaccompanied by any

complications in a normal, healthy woman require her

to cease engaging in the type of activities which she is

accustomed to engaging in prior to pregnancy?

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457

A. In itself, no. Unless, I say, girth becomes an impedi-

ment and it is a question of bad fit.

Q. Is a pregnant woman more susceptible or less sus-

ceptible to sickness and disease during her pregnancy

than she was when she was not pregnant? A. Well,

that is a complicated question.

There is nothing in pregnancy that I know of that con-

fers immunity against a disease.

There is in pregnancy, by virtue of the rapid weight

gain, a tendency to bring out diseases which pre-existed

the pregnancy, which diseases would be similarly brought

out with rapid weight gain in a man, a man who rapidly

became obese and who had a borderline underlying ten-

dency towards, say, diabetes, would have that diabetes

brought out by the rapid weight gain.

Whether you want to ascribe that to pregnancy or not

is another matter. So I am fundamentally saying that

conditions of rapid weight gain, both in men and women,

bring out tendencies to certain underlying diseases, such

as underlying hypertension, underlying diabetes, possibly

underlying thyroid disease, and so forth.

Q. How do you define disease? A. That is quite

a complicated question to answer.

We need a whole set of approaches to the definition,

and I don’t know which of these to define by myself.

Some people would define disease or abnormalcy as a

Statistical deviation from an average.

Under that kind of definition, for instance, hyperten-

sion might be a disease, hypotension would be a disease;

but it is a vague definition because it presumes something

like normal tension, and so when you statistically deviate

either towards the low or high side from that number

then you might say that is abnormal, that is a disease.

A second approach would be to try to define disease

57]

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458

in terms of ability to function. To show some of the

handicaps of going that route it might mean that some-

body who had, say, a Jewish nose in Nazi Germany and

was consequently unable to function in Nazi Germany

would have a diseased nose. That leads to certain, you

know, ridiculous lengths, but there are people who talk

about ability to function. A third kind of definition

would have it that disease is that which, if not corrected,

would continue leading to further debility and ultimately

to death. I suppose that is the commonest definition.

A fourth and more modern type of definition has

come through the World Health Organization’s definition

of health which says that it is not just an absence of

disease but the presence of a total sense of physical,

psychological, and social wellbeing. So that conversely,

you might then define disease as the absence of a sense

of total physical, psychological or social wellbeing.

But each of the definitions has advantages and draw-

backs.

Q. Is sickness a medical term? A. Well, sickness,

I think, is much more a lay term, It is a word used

much more by the laity in terms of the way they feel

like illness and sickness.

Disease would be much more the medical or techno-

logical term for the conditions that a patient might have.

Q. Is accident a medical term? A. No. These

are words used in the medical profession as a transference

from lay terms, but it is not specifically medical or re-

stricted to medicine.

Q. Does the medical science have a different definition

for accident from the layman? A. Not that I am

aware of.

May I qualify that? I mean occasionally you may

talk about a certain part of the hospital being called the

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459

accident room to which come patients other than those

who have accidents in the lay sense.

So a case of acute pneumonia might be rushed by am-

bulance into the accident room, not the pneumonia room.

But I think that is a question again of common sense use.

Q. Have you had experience with pregnant females

who did not take leave prior to childbirth but continued

on their job until labor began? A. Qh, yes, lots. I

would say that that is probably what in my position |

see the most because my office is on the third floor of

Georgetown University Hospital which houses the obstetric

department and the pediatric department. And if you

want to see anybody who works right up to labor it is

nurses in obstetrics and women — and women obstetricians

and women pediatricians. So we have a fair amount of

pregnant house staff working right on through to labor.

Q. 's there any indication that any of these women

are actine contrary to the directions of the best medical

advice, the nurses and the doctors that are working?

A. You mean the obstetricians and pediatricians them-

selves? Presumably they know what they are doing. |

am sure also the obstetricians that takes care of a preg-

nant woman pediatrician or a pregnant woman obstetri-

cian, if he were to tell her she ought to stop working

she would probably do it. And I expect that by common

sense if he gave her the indication as to why she should

do it she would agree to it.

You know, presumably they know themselves what

obstetrics is about and what pediatrics is about.

Q. Is there anything about pregnancy which per se

disables a normal, healthy woman prior to the onset of

labor? A. Prior to the onset of labor?

No, unless it is miscarriage.

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So there is a certain period up to 20 weeks when she

could be disabled due to miscarriage.

If you pass the miscarriage stage then between that

and going into labor there is nothing in pregnancy itself

that disables with the exception again of the girth story,

if I may, you know, revert to that.

Q. Has it been your experience that patients who con-

tinue to be gainfully employed on a full-time job outside

the home have a greater incidence of complications during

pregnancy than women who stay home? A. No, it

has not been mine, unless you want to include psycho-

logical problems, in which case I would say that the

ones staying at home are probably worse off, have much

more tendency to brood, get annoyed and this kind of

thing, but that would be psychologically an effect.

Q. Is it today accepted medical practice that a preg-

nant female can continue to be employed on her usual

job until the onset of labor? A. Yes. Within the

limitations of the girth story that I have said. You know,

if she were, I don’t know, a telephone operator, secretary,

yes, certainly she could continue to work on to labor.

If she is a pilot, you wouldn’t

Q. THat is, you would agree it is accepted medical

practice in this country? A. Oh, yes.

Q. Does this represent a change in medical practice in

recent years? A. Well, that depends on the word

“recent”’ in a sense.

I started myself in 1951. Yes, I think there has been

considerable change even since 1951 in the sense that the

whole process of pregnancy used to be considered the

kind of thing where you almost put a woman to bed in

cotton wool and put her on a pedestal and held her hand

and patted it and so on. But that has increasingly gone

out the window, as have lots of attitudes towards women

in general, I suppose.

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461

So it is a hangover from former days of considering

that women were hardly capab!> of doing anything even

in a non-pregnant state.

Q. Are there certain complications or abnormalities

which occur during pregnancy which may require her to

cease her usual activities? A. Yes, indeed.

Q. What percentage of women have complications or

abnormalities that interfere with their normal activities?

A. Well, let me answer that by saying ten percent of

pregnant women will miscarry. As a consequence at the

time that they have their miscarriage, which is equivalent

to the time of delivering a baby except that it is less

than 20 weeks of age, they would be disabled in the

having of the miscarriage.

There would be a second period of disability which

would be the disability of labor and delivery itself.

Q. That would be all women, that would be all women?

A. That’s right, that would be all women.

There would then be a certain group of women who

would be disabled by virtue of two groups of conditions.

THE COURT: I am sorry. I didn’t hear that.

THE WITNESS: I am sorry. Of two groups of condi-

tions.

The one would be that group of conditions I alluded to

before where the rapid weight gain of pregnancy brought

out an underlying disease which was there in the non-

pregnant state, like diabetes, and that might or might not

Cause disability depending on how well it was under con-

trol very much in the same way as a man gaining weight

rapidly might suddenly decompensate in diabetes. And it

would then depend on whether he could control it or not.

Then there would be a second set of disabling condi-

tions in pregnancy which arise purely from what I would

call conditions of the fetus and placenta, which is obviously

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462

what differentiates from the non-pregnant state.

And the two most classical ones of those would be one,

the condition in which the placenta lies below the infant

and consequently episodes of bleeding might occur in

pregnancy. And the second major one would be the one

in which a part of the placenta would be detached from

the lining of the uterus, so-called abruptio placentae or

premature separation of the placenta.

So these would be conditions then that arise solely from

the fact that one has a placenta in the uterus.

So there is the process of miscarriage, there is the

process of delivery, there is the bringing out of possible

underlying diseases, as in anybody who rapidly gains

weight, and there are the specific peculiarities of having

a placenta inside a uterus.

Q. I believe you have not mentioned the toxemias

and preeclampsia? A. Yes, I do, and do not bring

them out. Toxemia and preeclampsia are diseases which

are defined by the occurrence of a high blood pressure,

that is fundamentally what the disease is about, and the

cause of the disease is really unknown so that there is

still some debate as to whether in fact this is pregnancy

bringing out an underlying tendency to hypertension in

the first place.

So while by definition because the word “toxemis” is

only used in pregnancy, therefore by definition only the

pregnant can have it, the signs and symptoms are all

signs and symptoms of high blood pressure, which ob-

viously the non-pregnant woman or the male can also

have, and then the issue becomes whether it is something

in pregnancy that brings out the underlying tendency to

hypertension as would rapid weight gain of other kinds.

Q. You have also failed to mention ectopic pregnan-

cies.

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463

Where do those come? A. Ectopic pregnancies

would obviously be disabling, they would all occur, or

overwhelmingly they would occur prior to the 20th week

of pregnancy and they would require surgery.

Another one that would be disabling which I forgot

would be those particular kinds of pregnancies that lead

to what we call a hydatidiform mole or chorio-carcinoma,

those being conditions in which after the fertilized egg

implants in the uterus instead of the fetus developing

normally it is actually the placenta which develops by

itself and forms a mole-like structure that looks like

grapes, and which may turn malignant and then be called

a chorio-carcinoma. So these are peculiarities of the

pregnant state due to the presence of a placenta and a

conceptus.

Q. What percent of women have these abnormalities

and complications? A. I said ten percent of mis-

Carriages, but that is, you know, usually a one or two-day

affair.

In terms of the general so-called complications of preg-

nancies I would put it at about ten percent, but I

wouldn’t want to put that into a textbook. I would like

to go to a textbook and figure up the numbers to give

you a figure, but it would be approximately of that

order.

Q. So that is ten percent in addition to the ten percent

that have miscarriage, is that correct? A. That is

correct.

Q. And the miscarriages you talk about, you said were

predominantly the first trimester? A. Oh, overwhelm-

ingly. By definition it would have to occur before the

20th week. Of course by obstetrical definitions we talk —

of premature delivery between the 28th week and 40th

week, or however long you want to go.

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So by definition all miscarriages would occur before

the 20th week. They would overwhelmingly occur before

the 10th week.

So the vast majority of miscarriages are the very early

affairs.

Q. Are miscarriages normally attributed to a diseased

condition or an abnormality in the fetus? A. The

vast majority of miscarriages are due to defects in the

fetus and/or placenta rather than in terms of a woman. There

are some that have an underlying basis in disease of women,

we think, like thyroid disease. But the mythology surround-

ing miscarriages is as enormous as the mythology arising over

pregnancy.

Q. I believe we talked about ectopic pregnancy. Will

you, please, define ectopic pregnancy? A. An ectopic

pregnancy is a pregnancy which implants in a location —

other than the uterus. That might be a tube, ovary, it

might be an abdominal pregnancy.

Q. And none of these pregnancies develop to a full-

born normal child? A. The very rare abdominal

pregnancy may.

Now, I suppose I ought to point out that the sum

total of ectopic pregnancies is one in 200 of all preg-

nancies and that I have incorporated those in the ten

percent as miscarriages.

Q. Does an ectopic pregnancy ever miscarry itself

without surgical intervention? A. Well, the usual

thing, if it isn’t picked up and nothing is done, is to

rupture so that the tube, the Fallopian tube in which

the pregnancy sits will rupture, and one of two things

will happen. There will be either massive blood loss and

the woman may die if surgery is not intervened with.

There is the case of a silent rupture of an ectopic preg-

nancy in which on a subsequent occasion one may find

the products in the abdomen and no one even knew she

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had an ectopic pregnancy, but that would be extremely

rare. Overwhelmingly it is a condition that requires urgent

abdominal surgery.

Q. And if immediate obdominal surgery does not take

place what is the normal result? A. Well, the result

overwhelmingly would be death by exsanguination. So

fundamen

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