Appendix — General Elec. Co. v. Gilbert
Supreme Court brief1976
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APPENDIX - VOL. IV
WICHARL RULES -*
—
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-CIO-CLC, et ai.,
Petitioners,
v.
GENERAL ELECTRIC COMPANY,
Respondent.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
PETITIONS FOR CERTIORARI FILED JUNE 17, 1975
CERTIORARI GRANTED OCTOBER 6, 1975
| eng we ow ee
TABLE OF CONTENTS
PLAINTIFFS’ EXHIBIT NO.
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VOLUME IV
83A .
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1099
PLAINTIFFS’ EXHIBIT NO. 43B
General Electric Insurance Plan—Additional Information
1972, Corporate Accounts and Reporting Operation
3/27/73, received by IUE May 3, 1973.
GENERAL ELECTRIC INSURANCE PLAN
ADDITIONAL INFORMATION-—1972
May 3, 1973
During the calendar year an average of 311 421 em-
ployees had personal coverage, while an average of 219 337
employees also had coverage for their dependents.
The amounts shown on Exhibit I do not reflect the bene-
fits of $2 590 998 paid during the year to pensioners and
their spouses and surviving spouses under the General Elec-
tric Medical Care Plan for Pensioners.
The amount of $15 733 839 shown on Exhibit I as
other charges consists of the following:
Amount set aside to help provide life $16 061 000
insurance coverage for pensioners
Taxes, expenses, adjustments of reserves, 7 064 935
and all other purposes
Lee interest credited on reserves (7 392 096)
5 733 839
The incurred claims of $200 667 995 otS 733 69
shown on Exhibit I consist of:
Benefits paid directly to or for employees $197 055 563
and their beneficiaries
Increase in reserves to pay claims incurred 3 612 432
in one year, but which are not reported
until a year later
$200 667 995
At the end of 1972, the Insurance Companies were hold-
ing reserves of $186.6 million to meet Plan obligations.
CORPORATE ACCOUNTING CONSOLIDATION & REPORTING OPERATION
JIP:DEA 3/27/73 EXHIBIT II
1100
GENERAL ELECTRIC INSURANCE PLAN
COST AND PARTICIPATION DATA
CALENDAR YEAR 1972
Ezploycs Dependent
Sucary of Oncrat ion . Cove rage Coverage Total
Aévanee Deposits to Insurance Companies . .
Life Insurance : $ 45 137 504 $ $ 45 = =
Accidental Death or Dismenderment 1 381 873 . a tt
Weelly Sickness and Accicent 26 110 217 5 tae ant
Medical Expense Insurance 8 114 027 9 432 386 17 54 i
Totsi Acvence Deposits to
Insurance Companies 60 743 621 9 432 386 90 _ od
Refund of Excess Deposits : 71 489 | 280 430 3 2
Cot of Plan - Insured Portion 80 672 132 9 151 956 69 824 088
ncf ided Directly by the >
— e ctiy by $8 641726 67.936 022 126 $77 746
139 313 656 77 087 978 216 401 05%
‘et Cost of Plan
Laployee Contributions wy €/ wij? 437 347 21 400 064 21 $37 41)
Net Cost to Company : $239 176 509 $35 627 914 $194 86¢ 423
Per Cent of Net Cost of Plan Paig by: .”
Eunloyees * 12 27.8%
Cozpany os 99.9 72.2
Total . 100.0% 100.0%
‘ G. *.
!
va-ticinetion et Decerdcr 31, 1972
Number of Enployecs Participating 312 837 220 124
Analytis of Vet Cost of Plan
Incurred Claims
Life In.wwuraence $ 33 985 298 : $ 33 985 29°
Accicenteal Decth or Dismemberment 1 610 018 | ’ 1 6210 023
Weekly Sickness and Accident 25 672 401 25 672 40.
IMediccl Lipense Insurance 64 232 375 75 167 903 135 “00 274
Totel Incurred Clains $125 $00 092 2 $_75_167 903 $200 667 995
Conmminsions paid by Insurance Companies 4 -O-
Over charges for caxcs, cxpenses, ade-
Justocats of reserves and all other
purposes 15 733 639
wet Cost of Plan
$216 40: $3:
ean WTS ACCOUNTINS CONOLIDATION & REPONTING OPERATION
Jol Yen J/ei/73. ’ .
EXHIBIT I
1101
ADDITIONAL INFORMATION — 1972
During the calendar year an average of 311 421 employ-
ees had personal coverage, while an average of 219 337
employees also had coverage for their dependents.
The amounts shown on Exhibit I do not reflect the
benefits of $2 590 998 paid during the year to pension-
ers and their spouses and surviving spouses under the Gen-
eral Electric Medical Care Plan for Pensioners.
The amount of $15 733 839 shown on Exhibit I as
other charges consists of the following:
Amount set aside to help provide life $16 061 000
insurance coverage for pensioners
Taxes, expenses, adjustments of re- 7 064 935
serves, and all other purposes |
Less interest credited on reserves (7 392 096)
S15 733 839
The incurred claims of $200 667 995 shown on Exhibit
I consist of:
Benefits paid directly to or for em- $197 055 563
ployees and their beneficiaries
Increase in reserves to pay claims in- 3 612 432
curred in one year, but which are
not reported until a year later
$200 667 995
At the end of 1972, the Insurance Companies were
holding reserves of $186.6 million to meet Plan obligations.
CORPORATE ACCOUNTING CONSOLIDATION & REPORTING OPERATION
JIP:DEA 3/27/73
EXHIBIT II
1102
PLAINTIFFS’ EXHIBIT NO. 58
Letter from John Shambo to John Baldwin of GE
dated 2/24/72.
NATIONAL GENERAL ELECTRIC CONFERENCE BOARD
of the
International Union of Electrical, Radio and Machine Workers
AFL-CIO
15 East 41st Street
oo 9S New York, N. Y. 10017 oe 6
February 24, 1972
Mr. John Baldwin
Manager of Consulting Services
General Electric Company
570 Lexington Avenue
New York, N.Y. 10022
Dear Mr. Baldwin:
The International Union of Electrical, Radio and Ma
chine Workers, AFL-CIO-CLC, requests that GE agree with
the Union to correct the below described provisions in
the 1970-1973 GE-IUE (AFL-CIO) National Agreement
and General Electric Pension and Insurance Plans. Judged
by the present state of court decisions and EEOC guide-
lines and decisions these provisions discriminate because
of sex in violation of Title VII of the Civil Rights Act
of 1964 and state legislation against such discrimination
which is now in effect in 32 different states, including
New York and most of the other states in which the GE-
IUE National Agreement is applicable. Because GE is a
federal contractor, by reason of the provisions of Section
60-2.21(d)(7), Revised Order No. 4, Affirmative Action
Gudieline, GE is required, prior to April 2, 1972, to “re-
view all contractual provisions to ensure that they are non-
discriminatory.”
Pete: vers +--+
1103
* * * * *
With respect to loss of time from work by females due
to disabilities arising from pregnancy, miscarriage or child-
birth there are several respects in which the 1970-1973
GE IUE National Agreement, the General Electric Insur-
ance Plan and practices thereunder, judged by the princi-
ples enumerated in court and EEOC decisions, discrimi-
nate unlawfully because of sex. The Court in Cohen vy.
Chesterfield County School Board, 326 F. Supp. 1159, 3
FEP Cases 525 (E.D. Va. 1971) held that it constituted
unlawful sex discrimination by an employer to treat preg-
nancy of an employee any less advantageously to the fe-
male employee than other disabilities. To the same ef-
fect see Schattman v. Texas Employment Commission, 300
F. Supp. 328, 330, 3 FEP Cases 311, 468 (W.D. Texas).
The EEOC has held that the failure of an employer to
provide non-occupational sickness and accident benefits
for disabilities due to pregnancy which are provided for
all other non-occupational disabilities constitutes discrimi-
nation because of sex in violation of Title VII. EEOC
Decision No. 71-1474 (March 19, 1971), 3 FEP Cases
588, CCH-EPG Par. 6221.
Accordingly we believe that the failure of GE to pro-
vide the same benefits under Weekly Sickness and Acci-
dent Insurance for absences due to disability from preg-
nancy as are provided for absences due to other non-
occupational disabilities constitutes unlawful discrimina-
tion because of sex. The IUE therefore proposes that
GE and IVE agree to delete from the insurance plan the
next to last sentence appearing on page 18 of General
Electric Insurance Plan, with Comprehensive Medical Ex-
pense Benefits, as amended January 26, 1970 ERB-32D
reading as follows:
“Benefits under Weekly Sickness and Accident
1104
Insurance will not be payable for any absence due
to pregnancy or resulting childbirth or to complica-
tions in connection therewith.”
IUE proposes that in place of the foregoing sentence a
sentence providing for the payment of benefits under Week-
ly Sickness and Accident Insurance for any and all absences
due to disabilities caused by pregnancy, miscarriage or child-
birth be inserted and the last sentence changed so that the
last paragraph on said page 18 reads as follows:
““Any employee absent because of disability aris-
ing from pregnancy, miscarriage or childbirth
shall receive benefits under Weekly Sickness and
Accident Insurance in the same amount, for the
same period of time and on the same terms and
conditions as if the employee had been absent
for sickness. In addition there are Comprehen-
sive Medical Expense Benefits in the event of
maternity, miscarriage or childbirth if you are
enrolled for such coverage.”
We include as attached Exhibit C the foregoing pro-
posed revisiori.
The provision in Article XIII, Section 1(e), p. 30, to
the extent that it imposes the requirement that the fore-
man or other immediate supervisor be notified prior to
the absence from work discriminates because of sex in
that no such requirement of notice prior to absence from
work is imposed with respect to other illnesses. IUE
therefore proposes that the requirement of prior notice
be deleted and the words miscarriage and childbirth be in-
serted so that Subsection (e), p. 30, shall read as follows:
““(e) ‘Illness’ shall include pregnancy, miscarriage
and childbirth.”
Se ee eee
1105
We attach as Exhibit D to this letter the revisions in
the GE-IUE National Agree: :ert which we propose.
There are other provisions in the National Agreement
which we believe should be deleted or modified in order
to comply with the developing body of law under Title
VII. We have not attempted an all-inclusive listing of such
provisions, but we should point out that Article XV, 7(d)
may be deemed discriminatory insofar as such provision
excludes grievances arising under Article IV, 3 of the Na-
tional Agreement from arbitration. We should further
note that the Union has, during national negotiations, at-
tempted unsuccessfully to have the Company agree to the
elimination of many of these provisions from the National
Agreement.
We urge an early meeting on the subject of effectuating
the above proposals. We await your suggestions as to time
and place.
Sincerely yours,
/s/ John H. Shambo, Chairman
JHS:cds IUE GE CONFERENCE BOARD
Encls.
{EXHIBIT C]
Revisions in General Electric Insurance Plan with
Comprehensive Medical Expense Benefits, As
Amended January 26, 1970 (ERB-32D) proposed
by IVE by letter dated February 1972, to cor-
rect discrimination against female employees who
are absent due to disability arising from pregnancy,
miscarriage or childbirth.
1106
In the following, the words which have been stricken
now appear in the Plan and IUE proposes that they be
deleted; the words which are underlined do not appear in
the Plan and IUE proposes that they be inserted:
Fourth full paragraph, p. 18
Benefits under -Weekly Sickness- and -Aceidemt in-
suranee wil- not -be -payabdle -for any -absenee- due
to pregnamncy -or resulting ehildbirth or to com-
plications im connection therewith. Any employee
absent because of disability arising from pregnancy,
miscarriage or childbirth shall receive benefits un-
der Weekly Sickness and Accident Insurance in
the same amount, for the same period of time
and on the same terms and conditions as if the
employee had been absent for sickness. In addi-
tion there are however, Comprehensive Medical Ex-
pense Benefits in the event of maternity, miscar-
riage or childbirth if you are enrolled for such
coverage.
[EXHIBIT D]
Revisions in 1970-1973 GE-IUE (AFL-CIO) National
Agreement proposed by IUE by letter dated February
24, 1972 to correct discrimination against female employ-
ees who are absent due to disability arising from preg-
nancy, miscarriage or childbirth
In the following, the words which have been stricken
now appear in the Agreement and IUE proposes that they
be deleted; the words which are underlined do not appear
in the Agreement and IUE proposes that they be inserted:
Article VIII, Section Ife), p. 30
a ee
1107
(e) ‘““IHness-’ -shall- include- pregnancy ,- when wer- the
Foreman- or-other immediate supervisor-is notified
prior -te absence -from werk, miscarriage and child-
birth.
Article XV, 7(d), p. 66
(d) Involve claims that Article I, or Sectien 3 of
Article -IV of this National Agreement has been vio-
lated.
PLAINTIFFS’ EXHIBIT NO. 66
Facts About Women’s Absenteeism and Labor
Turnover, U.S. Dept. of Labor, August, 1969.
Women workers have favorable records of attendance
and labor turnover when compared with men employed
at similar job levels and under similar circumstances. This
conclusion is supported by a careful analysis of various
impartially collected statistics on absenteeism and labor
turnover which also indicates that the skill level of the
job, the age of the worker, the worker’s length of service
with the employer, and the worker’s record of job stabil-
ity — all provide better clues to an understanding of dif-
ferences in work performance than does the mere fact
that the worker is a man or a woman.
These data contradict some generalizations about the
comparative labor costs of men and women. However,
such generalizations are based on studies which point to
the sex of the worker as the major determining factor in
situations where numerous other factors have much more
influence.
1108
Before examining details of studies that consider com-
parable characteristics of workers, however, it is pertinent
to cite the overall averages of data compiled by official
or independent agencies. Even these show smaller net
differences in the work records of men and women than
frequently are suggested.
Overall Averages of Absenteeism
A Public Health Service study! of worktime lost by
persons 17 years of age and over because of illness or in-
jury shows an average of 5.6 days lost by women and 5.3
days lost by.men during the calendar year 1967. Signific-
ant differences were noted between men and women in
the emount of time lost because of acute or chronic ill-
ness. Women lost an average of 3.7 workdays because of
acute illness, whereas men averaged just 3.3 days away
from work for this reason. On the other hand, men were
more likely than women to be absent because of chronic
conditions such as heart trouble, arthritis, rheumatism, and
orthopedic impairment.
Another analysis also has indicated that women’s illnesses
usually keep them away from work for shorter periods
than men’s illnesses do. The Health Information Founda-
tion of the University of Chicago” studied the total loss
to the American economy from work absences that oc-
curred because of illness or injury between July 1959 and
June 1960. Since women lost more worktime because of
acute conditions and men because of chronic conditions,
NOTE 1. — This report provides the latest data available as of
June 1969.
NOTE 2.— Footnotes refer to sources listed on pages 8 and 9.
ee ee ee _
1109
the study found that the total financial loss caused by wo-
men’s absences was about the same as that caused by men’s.
The Bureau of Labor Statistics, in its monthly survey of
the labor force, records the incidence of illness but not its
duration. During an average week in 1968, 1.7 percent of
women workers and 1.5 percent of men workers were ab-
sent from work because of illness. In addition, an aver-
age of 1.2 percent of the women and | percent of the men
did not report to work for other reasons, excluding vaca-
tions. This survey does not give the full story, of course,
since women have, on the average, shorter periods of ab-
sences than men.
Overall Averages of Labor Turnover
Available statistics on labor turnover also indicate that
the net differences in job-leaving of men and women are
generally small — even when considered on an overall basis.
Labor turnover rates, which refer to the movement of
employees among firms, consist of both hiring and sepa-
ration rates. The average turnover rates for men and wo
men factory workers in 1968, collected by the Bureau of
Labor Statistics on a quarterly basis,‘ are:
Rate per 100 employees
Type of labor turnover Women Men
Accessions (hires) 5.3 4.4
Separations (total) 5.2 4.4
Quits 2.6 2.2
Layoffs and other involuntary
separations 2.6 2.2
Comparison of these quit rates with those analyzed in
an earlier study> shows a narrowing of the gap between
1110
the rates of men and women. The fact that women have
become relatively less inclined to quit their jobs than they
were formerly is due probably to the higher proportion of
older women in the work force and the increased interest
of women in continuous employment.
A study of occupational mobility by the Bureau of La-
bor Statistics® indicates that men are more frequent occu-
pation changers than womeiu. According to that study,
only 7 percent of the women but 10 percent of the men
held a different occupation in January 1966 than in Janu-
ary 1965. Movement between occupations was greater
among young workers than among mature ones. In the
18- and 19-year-old group, more than 1 out of 4 girls and
almost | out of 3 boys had worked in more than one oc-
cupation in 1965. Among those workers 35 years or old-
er, fewer than 4 percent of the women and 6 percent of
the men had changed occupations.
The seeming inconsistency between the labor turnover
rates and the occupational mobility percentages of the two
studies made by the Bureau of Labor Statistics is explained
by their different coverage. The study of turnover rates
referred to job changes of factory workers only. The
study of mobility rates, on the other hand, measured all
occupational changes but not job changes within the same
occupational classification. In addition, the latter figures
exclude workers who left jobs in 1965, and had not ob-
tained new ones by January 1966, either because they
were unsuccessful in their jobhunting or had voluntarily
left the labor force. Since there are relatively more wo-
men than men in this category, the figures for women’s
occupational mobility tend to be slightly understated.
Geographic labor mobility was also found to be some-
what less among women workers than men workers in a
eo
1111
study made by the Social Security Administration.’ Be-
tween 1957 and 1960, an average of 6.3 percent of wo
men workers but 7.7 percent of men workers changed the
region of their main job. The extent of regional move-
ment among white women workers (6.4 percent) and Ne-
gro women workers (5.3 percent) was exceeded by both
white men workers (7.8 percent) and Negro men workers
(7.3 percent).
Another indication of women’s increasing stability in
the work force is revealed in trend figures on the work-
life expectancy of women, as compiled by the Department
of Labor.* These figures show that the average number
of years a woman works had more than tripled from 1900
to 1960 and had increased by almost one-third in the de-
cade 1950-60. Worklife expectancy for those women
born in 1900 averaged 6.3 years; in 1940, 12.1 years; in
1950, 15.2 years; and in 1960, 20.1 years. In each case,
the percentage increase in women’s average worklife ex-
pectancy far exceeded that of their average life expectancy.
The expected worklife of a woman is closely related to
her marital status and the number of children she has.?
In the large group of women who enter the labor force
by age 20, the relatively small number who never marry
have a worklife expectancy of 45 years. This is about 10
years longer than for those women in the group who marry
but have no children and about 2 to 3 years longer than
for those who become widowed or divorced. For the
large number of married women with children, worklife
expectancy declines with the higher number of children
and the later timing of the last child. A woman marry-
ing at age. 20 has a worklife expectancy ranging from 25
years if she has just one child to 17 years if she has four
or more children.
1112
* * *
Federal employees’ absenteeism. A Public Health Serv-
ice analysis'© of the number of absences reported because
of illness by a sample of employees in one large Federal
agency corroborated the theory that employees in high-
level jobs generally had fewer absences than those at lower
levels, regardless of the sex of the worker. Thus, the gen-
eralization made in the report that women employees had
more absences than men employees was based on the over-
all data, which did not take account of the fact that rela-
tively more women than men were employed in the low
grades. In addition, it was found that women employees
with children generally had a greater number of absences
than those without children. As a result, differences in
the incidence of illness absenteism varied much more
among the women employees than among the men em-
ployees.
Since this report did not include statistical data con-
cerning the length of each absence period — generally
found to be longer for men than women —it presented
only a partial story of the illness absenteeism of Federal
employees in one agency.
A U.S. Civil Service Commission study!’ of sick leave
records in 1961 showed relatively small difference in the
total amount of sick leave averaged by women and men
Federal workers — 9.6 days for women and 7.9 days for
men. But even this difference narrowed in most instances
when comparisons were made of women and men with
similar salaries, ages, or years of service."® For example,
in 1961 among those earning $9,000 to $10,000 a year,
6.9 days of sick leave was the average for women and
6.3 days for men.
The highest average numbers of sick days occurred
ee
ee ee eee ree
1113
among those in the lowest salary levels — the levels where
women workers are concentrated. Two groups of women
had less sick leave, on the average, than their male coun-
terparts: those 60 years of age and over (10.5 days for
women, 11 days for men) and those with more than 30
years of Federal service (10.7 days for women and 11.3
days for men).
French workers’ absenteeism. The importance of con-
sidering job levels and other factors in any study of ab
senteeism is further emphasized in an international report”
on women industrial workers in Paris, France. The follow-
ing quotation is from that report:
Detailed study of absentee figures for large num-
bers of employees of both sexes and at all levels
of skill discloses that the comparatively high pro-
portion of women at the lower levels of the oc-
cupational scale (even in countries where the em-
ployment of women is a long-standing tradition)
goes a long way towards explaining their frequent
irregularity at work. Highly trained women oc-
Cupying responsible and skilled positions are sel-
dom absent, even if they have several children
to bring up.
Conclusion. Meaningful comparisons of absenteeism and
labor turnover of women and men workers must take into
consideration similar job levels as well as other factors such
as age and length of service. Many of the critical general-
ities voiced not only exaggerate overall differences but also
compare dissimilar groups of men and women.
*x* * *
Footnotes
1 US. Department of Health, Education, and Welfare, Public
Health Service. Vital and Health Statistics, Current Estimates From
1114
the Health Interview Survey, United States, 1967. PHS Publication
No. 1000-Series 10-No. 52, tables 8 and 16. May 1969.
2 The University of Chicago, Graduate School of Business, Health
Information Foundation. The Economic Costs of Absenteeism. Jn
Progress in Health Services, March-April 1963.
3 US. Department of Labor, Bureau of Labor Statistics. Em-
ployment and Earnings, January 1969. Annuai averages table A-19.
20 lsambert-Jamati, Viviane. Absen.c*ism Among Women Work-
ers in Industry. Jn International Labor Review, March 1962.
PLAINTIFFS’ EXHIBIT NO. 67
Michael S. Backenheimer, Ph.D., Demographic and Job
Characteristics As Variables In Absences for Illness.
Demographic and Job Characteristics
As Variables in Absences for Illness
MICHAEL S. BACKENHEIMER, Ph.D.
ATTEMPTING to understand and deal with absence be-
cause of illness has caused researchers to stress its cost to
industry and to business. Two facets of cost, cost to the
worker and cost to the organization employing him, have
been strongly emphasized (J, 2). The medical approach to
absence stresses the need to keep the worker healthy both
on and off the job. This approach has included work
safety programs, annual physical examinations, immuniza-
tions, and health insrance plans. In spite of this so-called
Dr. Backenheimer, a member of the Commissioned Corps of the
Public Health Service, is a statistician with the Service’s National
Center for Health Statistics. Theppaper is based on a portion of
his doctoral dissertation, ‘“‘“Some Sociological Correlates of Sick Ab-
sence Behavior,”’ American University, 1966.
Ne Ot eb te hs oe a
2 5 ee atin a reeg,
1115
global approach, little research is available on the social
and cultural aspects of behavior surrounding absences be-
cause of illness. The term “absence’’ as used subsequently
in this paper means absence from work which the em-
ployee attributes to illness.
I believe that absence behavior is, in considerable meas-
ure, a cultural and social phenomenon. This assumption
does not deny that almost all people, from time to time,
suffer from illnesses that are almost totally physiological,
requiring them to restrict their usual activities; however,
absence behavior is often influenced by many factors
other than physical illness. Parsons (3) has defined illness
as “a state of disturbance in the ‘normal’ functioning of
the total human individual, including both the state of the
organism as a biological system and of his personal and
social adjustments.”
Witr’n Parsons’ context, an employee may be said to
be ill when he says that he is ill. The same degree of ill-
ness in two workers may keep one off the job and not
impede the other in the least. Furthermore, a person’s
environment, both at home and in the office, may influ-
ence his decision as to whether or not he is ill. Should
he decide that he is ill, he then embarks upon the “sick
role.”
The status of being ill (as oppoved to the status of be-
ing well) is indeed vague. Dlness is subjective in that it
exists when a person says that he is ill, yet society clearly
ascribes to persons with this status the obligation of at-
tempting to get well and the privilege of not going to
work, which can more or less be objectively observed.
Thus absence behavior has many ramifications, and I shall
attempt to deal with some of its sociological dimensions
in this paper.
1116
Sex. Women had more spells of absence than men.
The assumption that such difference could be attributed
to age differences between sexes was not substantiated
since no significant differences in age were found between
men and women. No clinical or physical evidence exists
to support the assumption that women are more prone to
illness or disease than are men; however, it has been
found that women are frequently absent because of gyne-
cologic problems (6). If comparative mortality of men
and women of working age can be used as a measure of
illness, women prove to be healthier than men (7).
Women, however, may have more episodes of absence
than men because of the roles society assigns to them.
Within our society women can, more easily than men, be
ill because the idea of a woman “not feeling right, having
a terrible headache,” is socially sanctioned. Thus, women
are “entitled” to be absent with greater frequency than
men.
Analysis of the data also revealed that women with
children were more likely to have a high frequency of
absences than were women without children. This obser-
vation supports the contention that women’s commitment
to the family constellation results in higher frequencies of
absence. Mothers are, at least theoretically, more often
faced with role conflict than are women without children.
Thus the roles of worker and mother come into conflict,
and the result is the dominance of the mother role with
the worker role supported by recourse to absence behavior.
Marital status. Marital status was controlled in this
study; thus no original empirical research can be offered.
However, there is ample evidence in the literature that
marital status does influence absences and appears to do
OAD Le Ber Ue Te eee eee
1117
so differentially by sex. Married men, perhaps because of
their commitment and obligations to home and family life,
are absent less frequently than their single counterparts
(5). Probably because of the same commitment, and the
resulting role conflict already discussed, married female
employees are absent more frequently than their never
married counterparts (8). Thus marital status appears to
be an important variable in absence behavior.
Education. Education as a variable in absence behavior
served to distinguish between men with high and low fre-
quencies of absences; that is, those men who were seldom
absent because of illness were generally better educated
than those who were frequently absent. However, it is
probable that the number of years of schooling cannot be
considered a potent variable in influencing absences. Edu-
cation is intricately related to both job responsibility and
occupational status, and it is probably these factors rather
than education which are the more important variables in
absence behavior.
Job Variables
Occupational status. Within the study, Government
Service (GS) level measures occupational status; that is,
the higher the GS level, the higher the status. Occupa-
tional status is felt to be an accurate measure, since sala-
ries increase as GS level goes up. The study hypothesis
was that the higher an employee’s status, the lower would
be his frequency of absences. In some respects absence
behavior can be viewed as an opportunity system, and
the opportunity to take leave is not equally distributed
throughout the range of GS levels. The higher the GS
level, the less the opportunity for using leave for illness.
High GS level entails increased job responsibilities and
obligations.
1118
The hypothesis was borne out by analysis of the data.
Persons in the upper GS levels showed less frequency of
absences than did those in lower GS levels. This relation-
ship was true for both male and female employees. This
observation refutes the hypothesis that male employees
have fewer absences than female employees because they
have higher job statuses (GS levels). Apparently the con-
ceptualization of absence behavior as an opportunity sys-
tem is valid for the study of such behavior.
* * *
For job variables, frequency of absence because of ill-
ness decreased as job status (as measured by service grade
or salary level) increased. Neither occupational grouping
nor length of service in the organization was significantly
related to absence behavior.
* * *
REFERENCES
(1) Canfield, G.W., and Soash, D.G.: Presenteeism—a construc-
tive view. Personnel J 34; 94-97, July-August 1955.
(2) Plummer, N.: Absenteeism in industry. Adv Management
25: 21-24, September 1960.
(3) Parsons, T.: The social system. Free Press, Glencoe, Ill.
1951, p. 431.
Vol. 83, No. 12, December 1968 Public Health Reports
PLAINTIFFS’ EXHIBIT NO. 68A
Letter from Ruth Weyand to Ronald Wilson, National
Center for Health Statistics dated April 16, 1973.
International Union of Electrical, Radio and Machine Wokers
AFL-CIO and CLC
* * * * ** * *
1119
April 16, 1973
Mr. Ronald W. Wilson, Chief
Analysis and Reports Branch
Division of Health Interview
Statistics
National Center for Health Statistics
HSMHA
5600 Fishers Lane
Rockville, Maryland 20015
Dear Mr. Wilson,
As I indicated in our phone conversation last week, |
am confused about the statistics concerning pregnancy and
related conditions in three publications which use National
Health Survey data: Current Estimates, United States 1971,
Vital and Health Statistics Series 10, Number 79: Disability
Days, United States 1968, Vital and Health Statistics Series
10 Number 67; and Time Lost from Work Among the Cur-
rently Employed Population, United States 1968, Vital and
Health Statistics Series 10 Number 71. Could you please
tell me:
(1) Whether the statistics used in these studies give
an accurate account of the time lost from work
due to pregnancy among the currently employed
. population? If not, why?
(2) How is pregnancy defined for purposes of the
National Health Survey? Is it a sickness or a
condition which restricts activity? Is the de-
livery period distinguished from the remainder
of the pregnancy term? Are any of the com-
plications arising from pregnancy, such as mis-
Carfiage, ectopic pregnancy, high blood pressure,
Or morning sickness considered a sickness?
(3) In collating data for statistics on the time lost
1120
from work, does mandatory maternity leave at
the end of the fifth or sixth month of preg-
nancy, required by many employers, distort
statistical results?
(4) Are there any statistics which reflect the period
of time which an employed woman, who is in
no way restricted by her employer as to when
she must stop work before the delivery and
when she may return to work after the deliv-
ery, is absent from work because of her preg-
nancy?
Any additional information or observation you might
have on the subject of disability and work absence due
to pregnancy and related conditions will be most useful
to me. Your prompt aftention to this inquiry would be
greatly appreciated. Thank you.
Sincerely,
Ruth Weyand
Associate General Counsel
Internationai Union of Elec-
trical Workers
PLAINTIFFS’ EXHIBIT NO. 68B
Letter from Ronald Wilson to Ruth Weyand
dated May 7, 1973.
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
PUBLIC HEALTH SERVICE
HEALTH SERVICES AND MENTAL HEALTH ADMINISTRATION
Rockville, Maryland 20852
NATIONAL CENTER FOR
HEALTH STATISTICS
Pe ey
ee ee ee. ed
ei + aly ee
a
1121
May 7, 1973
Miss Ruth Weyand
1126—16th Street, N.W.
Room 6-13
Washington, D.C. 20036
Dear Miss Weyand:
This is in response to your letter of April 16 and our
earlier phone conversation concerning the reporting of
work-loss days related to pregnancy.
I will answer your questions in the order you asked them
in your letter.
Estimates of work-loss days based on data from the Health
Interview Survey as published in our reports do not accu-
rately reflect all of the time lost from work due to preg-
nancy. There are two basic limitations of the data which
make it inadequate to estimate total work-loss due to preg-
nancy. First, the Health Interview Survey does not define
routine pregnancy as an illness. However, complications
arising from the pregnancy are considered as illness, pro-
vided there was some restricted activity (work-loss, bed,
or other restricted activity day) or medical attention con-
nected with the complication. The actual delivery is con-
sidered as an acute condition and any associated disability
days would be included.
The second major limitation of Health Interview Survey
data on work-loss resulting from pregnancy is that we
count work-loss only for persons who are currently em-
ployed (persons who worked or had a job during the two
weeks before interview, see page 67, question 44 of 1971
“Current Estimates’). Women who drop out of the labor
force during pregnancy would be excluded from our esti-
mates of work-loss, even if we were to define routine
1122
pregnancy as illness. Women out of the labor force could
report bed days or other restricted activity days due to
complications of pregnancy or delivery, but not work-loss
days.
Mandatory matemity leave would not be counted as work-
loss, since the leave was not the result of “complications”
due to the pregnancy.
I would suggest that you contact Mrs. Catherine East, Ex-
ecutive Secretary of the Citizen’s Advisory Council on the
Study of Women, Labor Department, (110-3791). She has
been working in the area of disability payments for preg-
nancy.
I hope this information will be helpful. If you have any
‘
further questions, please ce’ me.
Sincerely yours,
/s/ Ronald W. Wilson
Ronald W. Wilson
Chief, Analysis & Reports Branch
Division of Health Interview Statistics
PLAINTIFFS’ EXHIBIT NO. 69
Women’s Bureau Pamphlet 17 (Rev.), Day Care Facts
Women’s Bureau
Employment Standards Administration
U.S. DEPARTMENT OF LABOR
Pamphlet 16 (Rev.)
1973
“DAY CARE FACTS”
DAY CARE NEED
ren
1123
Working Mothers and Their Children
The Employment of mothers, like the employment of
all women, has been rising for several decades. This ex-
pansion is expected to continue, and as a result, the need
for child care services will increase.
From 1940 to March 1972 the number of women in
the labor force more than doubled— from 13.8 million to
32.9 million. However, the number of working mothers
increased more than eightfold— from 1.5 million to 12.7
million. In March 1972, 12.7 million mothers with chil-
dren under 18 years of age were working or seeking work.
Of these mothers, 4.4 million, or about 1 out of 3, had
children under age 6. More than 4 out of 10 mothers
who had children under 18 years were in the labor force
as compared with 3 out of 10 in 1960 and less than |
out of 10 in 1940. Projections for 1985 indicate that
6.6 million mothers aged 20 to 44 with children under
age 5 will be in the labor force. This will represent a
32-percent increase between 1975 and 1985.
The number of children with mothers in the labor force
increased sharply during the last decade. Nearly 26 mil-
lion children under 18 years old had mothers who were
working or looking for work in March 1972. More than
5.5 million of these children were under 6 years old. In
1960, 15.7 million children under 18 had working mothers,
and about 4 million of these children were under age 6.
* * *
1124 1125
PLAINTIFFS’ EXHIBIT NO. 72 | PLAINTIFFS’ EXHIBIT NO. 73
Marital Status of Women in Labor Force, ,
U.S. Dept. of Labor, March 1971-1972. Mothers in the Labor Force by Marital Status and Age
of Children, March 1971-1972, U.S. Dept. of Labor
Table i.--Marital Status of Women in the Labor force, “arch i°°72-71
c
8 - uu EO ore ) a2 “ao
(Women 16 years of age and over) . oe. te Soe‘ hee |
panne of agp 2S | 3 SF RFS ARS BRR RNS
°
As percent ea
Percent of wozen in ‘
Number distribution oruiatior & oe ao we wenn Onze Sa ans
Mer‘tal status 1972 1971 gfe 1971 i9fe 171 Aa $ 32 ARS AAS AAR FEF
Total 32,939,000 31,681,000 100.0 100.0 43.6 42.5 ,
——— SOC —_—————_—_ —_—_—_— —_—_— wv
S.atle 7,477,000 7,187,000 22.7 22.7 54.9 52.7 = 2) be at SS |. SES alga
wre 749 986,000 62.0 63.2 42.1 4.14 S al SESS Bika a 4 5)
var eied 20,749,000 19 2 ca . Z S|
tus acd present 15,289,000 1,530,000 52.4 be 41.5 40.0 “ 7
Lusonnd absent 1,500,000 1,456,000 4.6 WE 52.5 59. « r
' dowed 2,570,000 2,516,000 7.6 7.9 26.5 29.7 . 3
w. vorced 2,143,000 1,992,000 6.5 6.3 70.1 70.4 is gle on zw Oma alge pe w w
x ce; | sss Sits ee - bo he
&
Source: U.S. Department of Labor, Bureau of Labor Statistics: Summary - ie
2ec.al Labor Force Report, Octovder 1972, Marital and Fanily Characteristics of
vcrkers, Merch 1972, and Special Labor Force Report No. 144,
role c,
Ln? iat
and Ace of Chilaren, !arci: 1+°2-7)
Number
2,230,000 2,103,
6,264 000
ES 70E ,000
1,536,000
k 438.000
’ *000
(eas! ass
"370,000
2,423 000
2.166.000
(Mothers 16 years of age ard over)
10,452,000 10,098,
i loli @iavpidia
in sz > | F
tel; Gp iG dig
as : . : - ry is 4 : s
Re Gaba bed
pi at Hel yb Ghd ial
TPL BLBbIBULELL
4),
Summary - Special Iabor Force Report,
October 1972, Marital and Family Characteristics of Workers, March 1972, end Special Labor Force Report No. }
Department of Labor, Bureau of Labor Statistics:
U.S.
May also have older children.
y Widowed, divorced, or separated.
ree:
Bu
1126 1127
: ’
PLAINTIFFS’ EXHIBIT NO. 74 | PLAINTIFFS’ EXHIBIT NO. 75
Labor Force Status of Ever Married Women, Labor Force Participation Roles and Percent Distribu
. tion of Mothers (Husand Present), by Income of Hus-
by Presence and age of Children, March 1972, band in 1971 and f Child
U.S. Dept. of Labor. | ene im and Ages o ren,
March 1972, U.S. Dept. of Labor
Tabie 3.--Lasor Torec Status o. Over “arr.e« “onen,
by Presence and Ace of Caildrea, warca 19/2
Oo] fez anmw
5 S| banda |
ea £ - rt laa) ~~“
La>or force 3 yr a)
AS percens : E é B >
Race and presence and of woren +n Ss ya ' f
age of children Population Number population § : $2 HONaE é
; ; - s 8s WO? oh i:
omer of all races : re b °° ae
“ac io) io
Total €1.896,000 25, %€2,000 41.1 as 3 g — © =
——_—- 2 a. en on oe ~“~«e
Mothers with children under 18 ycars 25,577,000 12,€82,000 42.9 i 2 4 Bg MARS 2%
——- w 2»
With chiléren 6 to 17 years only 15,677,000 8,244,000 52.6 £25 : 3 c 3
With children under € years 1/ 13,909,900 4,538,000 31.9 20 a
With no children under 3 years 1/ 29vay» £,F50,000 33.7 2
With children under 3 years 1/ 8,662,000 2,408,000 o.2 3 3 a q
" %
omen without children under 18 years 32,319,000 12,780,000 39.5 é : ; i ' ¢ eecec oe
omen of Minority Races Lr is #3
aces 2 a
total 6,590,000 3,256,000 49.4 Bee | 33 » | is 90a 9
> hn ae ’ =p 0 rot WN . &t
‘others with children under 16 years 3,439,000 1,842,000 53.6 its a8 § . oo t cE
ao] «
With children 6 to 17 years only 1,754,000 1,037,000 59-2 © é S
With children under 6 years 1/ 1,685,000 805 ,000 47.8 ae 55 E MS
mw OANnAWN
lomen without children under 18 years 3,151,000 1,414,000 4h. 9 “ae i 3 s i ; $3 3544 a ‘ as
i 45 IBS 3 is
is 5 a".
i/ May also have older children. e. - £ wt
: ©o Be oe 6s
Source: U.S. Department of Labor, Bureau of Labor Statistics: Summary - : 3 3 REE e 3 a
upecial Labor Force Report October 1972, Marital and Family Characteristics of ’ Ps $ 2 BSS =
> em £ is “ow *eo -
/orkers, March 1972, c F 4 ~oood # as
- hb Mevew °
zB Fock | mate
g « S A, s cs
& Ss Bi.8 S$
PLAINTIFFS’ EXHIBIT NO. 74
Labor Force Status of Ever Married Women. by
Presence and age of Children, March 1972,
U.S. Dept. of Labor.
L2b0 ty * 98 ’
1128 1129
PLAINTIFFS’ EXHIBIT NO. 76 WOMEN IN THE LABOR FORCE
1972 AND 1971 (Annual Averages )--Continued
Women in the Labor Force 1972 and 1971, (wenap 26 si aiiielindanial
U.S. Dept. of Labor.
1$72 1972
as Women of Womer. of
‘ ° minority minority
*s i? 58% oe oe3 All women races* All women races’
. S 5 4 2 ouls+t om “ =
ue Ss : . iputions of Employed Wonen
7 i wumber (i> *housards) 31,072 3,767 29,875 3,C5&
3 & 8 Percent 100.0 100.0 100.0 100.0
P; r:} Ts : ro essional and technical workers “Ts.5 “L.2 “Ts “T0.6
4 ’ sagere and administrators
except farm) 4.5 2.3 5.0 2.4
3 ie -ales workers 7.2 2.8 7.2 2.7
ofe clerical workers 34.7 23.3 33.9 22.
g 3 = = i j “i i: Pe cratsmen ard kindred workers 1.2 9 1.3 1.0
a % 4 oll at m a cperatives, except transport 12.8 15.0 13.3 28.h
s z rE a Transport equipment operatives** y 3 f rs -
2 Nor. arm Laborers e ° é .
a S j a es E . i Private eon hy 4.5 15.2 4.9 16.5
cervice workers ae
- a a 2 i 33 5 3 1 +] ’ "pausahenald 17.5 26.6 17.4 27.0
x A=z*, 3 s 4 >ormers and farm managers 3 el 3 ol
- z eS i a~ - Para laborers and foremen 1.4 1.1 1.4 i.4
< 4 F
6 Es 5 | empl t Rates
a .” e 3 (not seasonally adjusted)
on)
“ z B2 © Total 16 years and over 6.6 1-3 6.9 10.0
5§ - § g ~é 10 19 years 16.7 8. 17.2 35.5
a ~~ = A 5 ec years and over 5.4 8.8 5.7 8.7
Pr} a 4 e 5 Percent of unemployed seeking
, 3 é - 3 part-time work 26.5 20.6 25.9 =
o
s
si2 3 9% 9
ab: bed fy
als 3 $ a vercent on full-time schedules 72.0 73.9 1.8 73.3
ole Bo, ~ i Yercent on part-time schedules 26.0 26.1 28.2 26.2
be 2 275 Be
C 3 Es ;* *Includes all races other than white; Spanish-speaking persons are included in
a 47 Rg <ne white population.
“ot shown separately prior to January 1972.
Data distributed by Women's Dureau, U.S. Department of Lator, January 1973.
BEST COPY AVAILABLE
1130
PLAINTIFFS’ EXHIBIT NO. 77
Report of the Commission on Population Growth
and the American Future
(Gov't Print. Off., March 1972), pp. 97-98
Chapter 11: Human Reproduction
Contemporary American couples are planning to have
an average Of between two and three children. Given the
fact of youthful marriage, far-from-perfect means of fer-
tility control, and varying motivation, many of these cou-
ples will have children before they want them and a sig-
nificant fraction will ultimately exceed the number they
want.
Recent research! has disclosed a substantial incidence
of such unplanned pregnancies and unwanted births in the
United States. According to estimates developed in the
1970 National Fertility Study conducted by the Office
of Population Research at Princeton University, 44 per-
cent of all births to currently married women during the
five years between 1966 and 1970 were unplanned; 15
percent were reported by the parents as having never been
wanted. (See Table 11.1.) Only one percent of first
births were never wanted, but nearly two-thirds of all
sixth or higher order births were so reported. In theory,
this incidence of unwanted births implies that 2.65 mil-
lion births occurring in that five-year period would never
have occurred had the complete availability of perfect fer-
tility control permitted couples to realize their preferences.
And these estimates are all conservative.
Unwanted fertility is highest among those whose levels
of education and income are lowest. For example, in
1970, women with no high-school education reported that
.
1131
31 percent of their births in the preceding five years were
unwanted at the time they were conceived; the figure for
women college graduates was seven percent. Mainly be-
cause of differences in education and income—and a gen-
eral exclusion from the socioeconomic mainstream — un-
wanted fertility weighs most heavily on certain minority
groups in our population. We have relevant data for
blacks only, but this is probably true for Mexican-Ameri-
cans, Puerto Ricans, Indians, and others as well.
For example, if blacks could have the number of chil-
dren they want and no more, their fertility and that of
the majority white population would be very similar.
These figures about our black population illustrate the
inequality of access of our minority populations to the
various means of fertility control, as well as to the edu-
cation and income which is so closely connected with
that access.
Not all unwanted births become unwanted children.
Many, perhaps most, are eventually accepted and loved
indistinguishably from earlier births that were deliberate-
ly planned. But many are not; and the costs to them,
to their siblings and parents, and to society at large are
considerable, though not easy to measure.
1132 1133
twice as great among couples whose annual incomes fall
below $4,000 as it is among those with incomes of $10,000
and higher. Since most unwanted births experienced by
Tahie 11.1 sages . married couples occur late in the childbearing years, the
Unwanicd Fertility in the United States, 1979° woman who had been waiting for her youngest child to
idk ae net on Eh Ol be in school before returning to work can find her plans
f vucsivon mths por 9 : man withou :
ik a abruptly frustrated.
All\Wome 30 15 44 wal ,
Peete & 75 = 39 . = There are also health costs involved. As President Nixon ;
Col qet-3 28 11 39 26 observed:
hircah School 4 28 14 44 26
“ighSchool!-3 34 20 48 29 . . involuntary childbearing often results in poor
at wom 5 _ =A — 3.0 physical and emotional health for all members of
Calne de an - 45 i the family. It is one of the factors which contrib-
Cou get-3 28 10 39 26 utes to our distressingly high infant mortality, the
Hiah School 4 28 13 42 2.6 unacceptable level of manlutrition. . 3
Hign School 1-3 32 18 44 28
Less LO 25 53 29 These health problems result, in part, from the fact that
: Ng ——_ : 2 ; : a — most unwanted births occur to women in the later years
‘ ge“ 4 ’ e . .
heen, ea - -" pe 29 of childbearing. And these are the ages at which there
High Sehont4 33 19 62 28 are considerably greater risks to maternity. For example,
aaa -- = although maternal mortality has declined by 94 percent
ess :
over the past 30 years to a rate of 24 maternal deaths
per 100,000 live births, the risks increase sharply at the
older ages. Compared with the rate at age 20 to 24 when
the risk is lowest, the rate is four times greater at ages
35 to 39, almost eight times greater at ages 40 to 44,
and nearly 20 times greater at older ages.*
“Poccdon data from the | 10 Netional Fertility Study for currently
morne twee rounder 1) years of ogre,
‘Lo plonnedturths include unwanted births,
Most of the costs of unwanted fertility are not visible in
the dramatic instances of abandonment or child abuse,
but rather in the more prosaic problems of everyday fam-
ily life. Family budgets can be seriously strained by the
unexpected and unwanted birth of a child. And those
who can least afford such additional burdens most often
experience them. The incidence of unwanted births is
The risk to the infant’s life is also associated with the
mother’s age; the infant mortality rate runs almost one-
third higher among women 35 years of age and over, tian
among women aged 20 to 24.5
Because of the strong association between maternal age
and .the appearance of certain hereditary diseases, the pre-
vention of births of women over 35 would reduce the
1134
incidence of such diseases. For example, the incidence of
Down’s syndrome, which accounts for 95 percent of mon-
golism, would be reduced significantly by the avoidance of
childbearing in the older ages.
How far down the road toward population stabilization
would the prevention of unwanted births take us? Since
fertility has been changing so rapidly in recent years, such
an estimate is difficult to make. The record of women
who are approaching the end of their childbearing, those
35 to 44 years old in 1970, indicates that 27 percent had
at least one unwanted birth, a total of one in every six
births. The prevention of the unwanted births in this
group would have carried them about three-fifths of the
way to the replacement level. But women in those age
groups were the main participants in the post-war baby
boom and have had the highest fertility of any women
in modern time. And there has been a significant change
downward in the family-size expectations of young couples.
* * *
1135
PLAINTIFFS’ EXHIBIT NO. 78
Prentice-Hall, Personnel Management-Policies
and Practices, Report Bulletin 25, June 6,
1972, P-H Survey Maternity Leave Policies
Due For A Change.
Personnel Management —
mn,
LG Policies and Practices
) Report Bulletin 25
Volume XIX June 6, 1972
he
Englewood Cliffs Protize-L'al p> New Jersey
P-H Survey: Maternity Leave Policies
Due for a Change?
*> ¢ s
llow does this affect employers? To learn the answers, the P-H
Research Staff surveyed typical plants, offices and hospitals. While the
majority of these firms now grant maternity leaves, more than half of
them will need to review and revise their policies before they'll be in
compliance with the new guidelines.
6-6-72 P-H Survey: Maternity Leave 457
7.
P-H Survey: Maternity Leave Policies
Due for ao Change?
{9230} Almost 3 out of 4 companies surveyed by the P-H research staff have a
forma! policy for providing maternity leaves. Another 20% will give a woman a leave
of absence—but this decision is made on a case-by-case basis. (For instance, some firms
have different policies for their plant and for their office workers.) And 5% of the
respondents haven't granted any maternity leaves up to now.
*> <- 8
¥ 7-YEAR PROGRZSS REPORT -> Shortly after Title VII took effect, in
1965, P-Il surveyed over 1,000 employers on this subject. The picture was quite
different: Only two-fifths of the offices granted maternity leaves; three-fourths of
the plants (mostly unionized) granted leaves. But they tended to require carly
“retirement” from the working scene—sometimes as soon as a pregnancy was
“obvious.” Few employcrs—less than 20%-allowed the pregnant employee hersclf
tu decide how long she wanted to continue working. And in many companics, ifa
woman wanted to return to work after the birth of her baby, she was considered a
“new hire’’—with no seniority rights. -
BEST COPY AVAILABLE
—
—— ————
1136
Elisivility requirements. More than one-third of respondents (but nearly 2 out of 3
hospitals) set length-of-service requirements for employees wishing maternity lcaves.
Commonly, they require at least 6 montis’ service, with one year's service the next
most frequently mentioned. (Hospitals, however, most commonly require one year's
service.)
Other service requirements (3 months or less) generally appear to follow companies’
norinal arrangements for.prodationary employees who may not yet be participating in
otlier company benefit programs. On the other end of the scale, a few companies set a
Y-nonth of 10-month service requirement (i.¢., the employee could not have been
pregnant when she was hired; this question is discussed in more detail below). No
respondent required longer than 2 years’ service, for a woman to qualify.
Several companies said only permanent, full-time employees were eligible for
maternity leaves. And one company (where determinations have up to now been mzde
on a case-by-case basis) suid granting of Icaves depended on “quality of work and
personality.” (If a leave was denied, this would appear to be a constructive discharge.)
s* ¢- 6
‘how low, can she continue working? Generally, it’s the employee - or the employee
with her doctot’s O.K.--who decides. Over 60% of respondents recognize that jobs and
ogle duller, the pregnant woman decides for herself when she needs a leave for her
“aporary disability.”
‘ut in 35% of responding companies, the policies spell out how long a pregnant
cin, loyee con conunue working. Of those firms, 6 months is the most commonly-
mentioned cut-off date, with 7 to 7-1/2 months a close second. Several office firms set
wa Stuonth deadline. A number of plants say 4-5 months. Other special cases:
2 4 months [plant doctor advised against lifting, walking up stairs)
4 & months fur production employees; no limit for ofiice employees
2 4 months if employee has no dispensation from her doctor; 8 months if her
ducive says it’s OK. [office firm)
© 7 nwoths, if employee is exposed to radiation [hospitsl]
iow do you know wacther it's safe for her to work’ Most companies—no matter
vat their puliey on how long « dregaant employee may continue on the job—want
oe wtatice that the womgn is physically able to work. Thus 3 out of 4 firms ask her
io wong an O.K. from her personal doctor, with the expected date of birth noted. One
company asks the employee to bring in an O.K. at 2-month intervals. About !| in &
companies require an O.K. from the company doctor; and 10% don't require a medical
stulcinent. ‘
A small percentage of firms (10%) require an O.K. only if the employee is ill or
works in a hazardous job. And | out of 6 companies have occasionally arranged
transfers for pregnant employees to safer or easier jobs, if this was feasible.
What about pay for absences of employees during their pregnancy? Two out of
three companies apply the same rules to pregnant employees as they apply to anyate
else. Ilowever, about one-fourth of the firms will pay only for illnesses got connected
wiili pregnancy. (One company pays for absences resulting from “complicatiors”—but
not for illucsses associated with a “norma!” pregnancy.) The remaining firms don't pay
for absences due to illness, whatever their cause. Do companies ask pregnant
employees lo stop work eurlier than originally planned, if their atteadance record is
poor” Some 13% of respondents say Yes. Again, this decision may be made after
consultation wiih the employee's doctor, to ensure that the jo} isn’t endangering the
employee's health.
Benefits and insurance. Two out of three respondens have temporary disability
benefits plans. Of these, 54% provide coverage for pregtant employees.
1137
Wiist about medical and hospital insurance benefits covering maternity? Over 90%
of respondents said their female employees were entitled to the same matermity
benclits as the wives of male employees (provided of course that they carried a plan
providing family-iype coverage). Several exceptions were noted: If the femuaic
cimployee wasn't covered by a plan provided by her husband's employer (that is, there
can be no duplication of coverage); unless she was head of household; and one firm
suid Ue protection was not offered to an individual who was unmarried. (A number of
companies expected to be making changes in this area, probably in response to the
new guidelines.)
3 WHAT ABOUT ABUSES? > About 10% of respondents said they had
problenis with pregnant employees who claimed unemployment benefits, whicn
their employers considercd them “unavailable for work.” Most of the firms that
found this a problem considered it worthwhile to contest such claims. The others
apparenily consider the claims justified, or they pay them, as the lesser of two
nuisances. (VOTE: Of course, those companies allowing employees to work as long
as they wish, rather than setting an arbitrary quitting date, aren't generally troubicd
with UC. benefit claims.)
‘3 WORKMEN'S COMPENSATION CLAIMS MAY NOT BE A PROD-
LiM -> Although 10% of respondents have expressed concern aboui pregnant ¢m-
vloyees’ filing claine because of g wuscarriage Or other injury suffered in the course
of employment, this fear may not have much basis in fact. Here's why: We asked
respondents whether such claims had ever come up, in their experience. And, if so,
was the company held liable? Surprising!y, none of the 108 respondents suic ticy
knew of a single case!
* - s&s
How long a leave do they necd? How long do maternity leaves extend a/tcr
childbirth? More than hail the responding companies set some sort of limit. Ente:
they set the carhest and the latest time after childbirth that the employee can or must
fetuin to work (or lose her right to reimstatement). Or, they spell out a limit on
the tutu! length of a maternity leave (including before and after childbirth). Sonie
lems set a variety of limits, as explained below. Just over one-fifth of the com-
panies -22% let the employee decide how svon she wishes to return to work after
childbuth. {
= Earliest returns: Of the companies setting a limit on when employees nay
resume work following childbirth, the most common requirement is 4 wecks or, more
usually, 6 weeks after childbirth. (Note: A number of states formerly had rules
prolubitimg employment of women within 4-6 weeks after childbirth; a number of
these laws, along with much other protective legislation. tending to conflict with Title
VII. have since been repealed. Check your state law on this point.)
=> latest returns: About half the companies setting limits say employees should
return to work no later than 3 months after childbirth, or“at least report in at that
tune to arrange for an extension of their leave, if desired. A few set the limit at 2
months, © weeks or 30 days. Others set the limit at 9 months or | year following
chuldbuth.
1138
6-72 -1) Survey: Maternity Leave 463
* MOST OF THE WOMLN WHO TAKE MATERNITY LEAVES COME BACK
10 WOXK > We asked survey respondents to tell us what proportion of thei
cooployees who were pregnant in 197) quit their jobs and what proportion took 3a
leave Considering just those companies that had statistics available, half the plants,
vie thud of the office firms, and two-thirds of the hospitals said that 75% or mure
vf the cinpluyees who were pregnant elected to take a leave. (In many of these
cases, 100% of the empivyces took a leave.) And of this group, more thun hall
reported a perfect score on “returns” —that is, all the employees who elected a leave
actually returned to work as scheduled.-On the other hand, some companies
reported that only a fraction of employees actually returned after their babies were
bom (in some cases, they would have liked to return, if a suitable job opening
existed).
Whether your company's experience is worse or beiter—depending on your point of
view you will surcly have to reckon with maternity leaves from now on. And you'll
liuwe tu Lunsider ways tO minimize the impact on your staff operations.
1139
PLAINTIFFS’ EXHIBIT NO. 79
Carol Greenwald, Maternity Leave Policy,
New England Economic Review, January-February 1973.
ia! FEDERAL RESERVE BANK OF BOSTO
ih
“NEW
ENGLAND
ECONOMIC
REVIEW
1140
MATERNITY LEAVE POLICY
by Carol Greenwald
Maternity Leave Practices
According to a survey of 219 companies conducted by
the Administrative Management Society, most firms’ per-
sonnel policies in 1971 toward pregnant employees differed
radically from the new Federal guidelines which took ef-
fect early in 1972.5 The new Federal guideline states that
it is up to the woman employee to determine, in consulta-
tion with her doctor, when to terminate her employment.
Most firms replying to the survey had a set termination
date for a pregnant employee. While answers varied widely,
the largest group of firms (67) said that women employees
were required to leave before reaching their sixth month
of pregnancy.
The new guidelines require employers to let women em-
ployees use sick leave pay during a maternity absence as
well as requiring that a woman on maternity leave receive
the same payments as any other temporarily disabled em-
ployee. While 172 firms said that absences due to illness
while pregnant were paid for under the company’s sick
leave plan, 174 companies in the survey indicated that
they granted maternity leave of absence without any pay.
In fact, 33 firms indicated that they did not even grant
maternity leaves without pay, a policy in violation of a
1968 EEOC guideline which stated that a leave of absence
should be granted for pregnancy whether or not it is granted
for illness. The new EEOC guideline strengthens the 1968
ruling by stating that firing employees because of absences
exceeding allowed leave time may be unlawful if this prac-
tice has disproportionate impact on one sex.® Basically,
1141
this means that an employer permitting employees five
days leave time a year may be in violation of the law if
he fires a woman who, because of pregnancy, missed sev-
eral weeks of work. Employers with unreasonably short
leaves have thus been put on notice that their policies
may be illegal.
January/February 14> 3
Table 1
THE STRUCTURE OF THE WORK FORCE
Federal Reserve Bank of Bostoa
. of Female Women @ % 34% Pregnancy or taking
Jag. ign of Total of Al Women Maternity Leaves
Dec. 1971 1568 955 61 50 2
Aug 1972 1550 918 59 49 8
x* * *
The Cost of Paid Maternity Leaves
A Case Study
To answer this question the staff of the Federal Reserve
Bank of Boston was used as a case study to determine the
costs the Bank would have incurred if it had implemented
the new EEOC guidelines during a 20 month period from
January 1971 to August 1972. Since the Bank has both
a large, fairly young female staff and a generous sick leave
policy, an analysis of the Bank’s costs should provide a
fair example of the costs employers generally could expect
from the liberalization of benefits.
1142
As Table | shows, the Federal Reserve Bank of Boston
had approximately 1560 employees in 1971 and 1972,
60 percent of whom were women.’ Half of the female
employees were under 34 years old and were thus in the
prime childbearing years. About 30 percent of the women
workers were under 25 and single when hired.
Turnover was quite high among the female staff under
age 34 (32 percent in 1971 and 25 percent in 1972), with
pregnancy being a significant factor. Pregnancy accounted
for 12 percent of the turnover in this age group in 1971
and 4.5 percent of the turnover in 1972.
At the Bank employees accumulate 18 days of sick pay
a year at full pay for each year of employment, and 18
days a year at half pay, to be used after their full-day sick
benefits run out. Employees may accumulate up to 270
days of sick leave at full pay. Most firms offer a less gen-
erous sick leave policy by severely limiting the accumula-
tion of sick leave and covering longer illnesses under tem-
porary disability insurance plans which generally pay only
half to two-thirds of the employee’s wages. Most disabil-
ity plans generally exclude pregnancy-related ills from cov-
erage, but under the new EEOC guidelines these restrictions
must be removed. As a result of the Bank’s sick leave
policy, in this case study it is assumed that pregnancy
leaves would be paid under accumulated sick leaves rather
than under temporary disability insurance. Since this con-
tains a large proportion of days at full pay, the analysis
overstates somewhat the costs of firms which would cover
maternity leaves under disability plans.
7 Officers of the Bank, part-time employees and very short term
employees who are not eligible for medical benefits have been ex-
cluded from all data.
1143
Since it is impossible to determine beforehand how
many days a pregnant employee will be unable to work
due to pregnancy-related disabilities, we used two differ-
ent assumptions in the analysis. In Case A, we assumed
that pregnant women would work until the end of the
eighth month of pregnancy and then take one month of
sick leave at full pay (if they had accumulated that many
sick days). After the baby’s birth, the women would take
a six-week maternity leave while continuing to receive ac-
cumulated sick pay benefits. In Case B, we assumed that
pregnant employees would take all their accumulated sick
days either during their pregnancy or during their mater-
nity leave. On average, employees taking maternity leaves
had accumulated 5% weeks of sick pay at full pay and
8% weeks at half pay in 1971 and 10% weeks at half pay
in 1972. On average then, women in Case B took a ma-
ternity leave of 14 to 16 weeks at 70 percent of full pay
over the entire period. In both Cases A and B it should
be remembered that a doctor must certify that a woman
cannot work for medical reasons for the employee to be
entitled to any medical benefits. An insignificant number
of women could be expected to take longer matermity
leaves for medical reasons than is assumed in Case B.
1144
Table 2
COSTS OF PAYING ACCUMULATED SICK LEAVE PAY
DURING MATERNITY LEAVES
Federal Reserve Bank of Boston
Case A , Cas Women Under Age 35
Assumes woman works Assumes woman col- Inc ease in
through &th mo. and ects all accumu- © Hourly Wage _ Increase in
then takes 6 wk. ma lated sick pay. Average Hourly Dueto Percentage Total Bank
ternity leave. (Maxi- (14-16 week Wages, Women Maternity Increase in Sick Pay
mum 10 wk. leave.) average leave.’ Under Age 35* Benefits Hourly Wages Benefits
= = = =
1971 $16,945 $32,731 $3.29 $0.02$0.04 06% 1.2% 4.6% 8.9%
Janm-Aug
1972 $6,907? $11,382 $3.25 0.01 0.0203 06 29 48
1972
(annual rate) ($10,361) ($17,073) (0.01 0.02X0.3) (0.6)
"Maximum of 9 months of full and half days.
2
data should not appreciably bias 1971 costs ance the only Bank-wide review of salaries during this 20 month
penod occurred in November 1971 and we are using end of panes Om ane Op aan ea Some persons
will have received ment increases between November 197) and August 1972 and by using 1972 daw
197) costs upward somewhat.
1145
Table 3
IMPACT OF LIBERALIZED MATERNITY BENEFITS
ON HOURLY LABOR COSTS: ACCUMULATED SICK PAY
Federal Reserve Bank of Boston
Increase in
Average Hourly Hourly Wage Percentage
Wage, Total Due to New Increase in
Bank Labor Force Maternity Benefits Hourly Wages
Case A Case B Case A Case B
1971 $4.15 $.006 $. 01 0.1% 0.2%
Jan-Aug
1972 4.15 .004 .006 0.1 0.1
——_—
— i oe Rn -
Paying Accumulated Sick Pay
Table 2 indicates the costs of the liberalized benefits.
In 1971, under the reasonable but modest assumptions
of Case A, payroll costs would have been raised by
$16,945 in 1971 and by $6,907 in the first eight months
of 1972. Under the more liberal assumption of Case B,
$32,700 would have been added to payroll costs and in
the first eight months of 1972, $11,400 would have been
added (or $17,100 at an annual rate). The difference in
the annual costs is due in part to chance (there were 22
pregnancies in 1971 compared to 8 in 1972) and in part
to the fact that in 1971 one quite high wage employee,
who had a large number of accumulated sick days, took
a maternity leave. These liberalized benefits would have
increased the cost of sick pay benefits in 1971 by 4.6
percent in Case A and by 8.9 percent in Case B.
To put these additional benefit costs into perspective,
they are compared with the total wage bill for women
under age 35 to indicate how much these additional bene-
fits increase the hourly wage of women in this age group.
1146
As Table 2 clearly shows, on an hourly basis, even in Case
B, these increased costs averaged out to a 4 cent rise in
hourly wages in 1971 and a 2 cent rise in 1972, or an in-
crease Of 1.2 percent in hourly wage costs in 1971 and
0.6 percent in 1972. In Case A, the increase in hourly
costs was about half as much.
We have used women under age 35 as our base rather
than all women employees or all employees, in order to
confront the question of whether the cost of these mater-
nity benefits is so great that employers would discriminate
against hiring young women. Our analysis indicates that
this should not be the case. This is especially true since
the institution of these benefits is a one-time adjustment
in levels of compensation, rather than continuing increases.
That is, wage levels would rise in the year these benefits
were introduced to a base, at the very most, 1.2 percent
higher.
Since higher labor costs generally lead to higher prices,
it is of interest to determine how much these liberalized
benefits raise total labor costs. In this case, the relevant
wage base for calculations is the total labor force, male
and female. As Table 3 shows, labor costs per worker
hour would have risen in 1971 only one cent an hour
under assumption B, and by % cent an hour under as-
sumption A. The 1972 costs averaged about half as much.
Thus, the instititon of these liberalized benefits would
have very little inflationary impact.
Table 4 indicates the actual costs incurred by the Bank
for sick pay and disability benefits by age and sex of work-
ers. For male workers over 35, these medical benefits aver-
aged 17 cents an hour per worker in 1971 and 20 cents
in 1972, while for women workers over age 35, they cost
19 cents an hour in 1971 and 17 cents an hour in 1972.
ee eee
1147
Table 4
SICK PAY AND DISABILITY BENEFITS AS A
PROPORTION OF COSTS, BY AGE AND SEX OF WORKER
Federal Reserve Bank of Boston
Men Women
1971
Medical As %of Medical As %of Cost with
Average Benefits, Average Average Benefis, Average Liberalized
Hourly Hourly Hourly Hourly Hourly Hourly Benefins,
Age Pay Basis Pay Pay Basis Pay Per Hour
A B
Under 25 $3.86 $0.08 2.1% $3.09 $0.09 29% $0.12 $0.13
25 — 34 5.40 0.10 19 3.71 0.11 3.0
35 — 54 5.45 0.13 2.4 3.92 0.18 4.6
55 & over $.11 0.24 4.7 3.89 0.19 49
Jan Aug. 1972
Under 25 3.67 0.07 1.9 2.93 0.09 3.1 $0.11 $0.12
25 — 34 5.16 0.09 1.7 3.83 0.13 34
35-54 $.55 0.16 2.9 3.87 0.16 4.1
5S & over 5.09 0.28 5.5 3.9% 0.20 $.1
For men under 35, the costs were 9 cents an hour in
1971, and 8 cents an hour in 1972. For women under
35, these actual medical costs were 10 cents an hour in
both years. After liberalizing benefits to include paid
maternity leaves, as Table 4 shows, hourly costs for women
under age 35 could have risen in 1971 to 12 cents an
hour under assumption A and to 13 cents an hour under
assumption B. Even in Case B, the cost of these medical
payments to women under age 35 would still be less than
that to women over 35 and to men over age 55.
Conclusion
This examination of the costs of implementing the new
EEOC guidelines clearly indicates that the costs would have
a negligible impact on overall labor costs and would not
raise the effective wages of young women workers enough
to injure them in the job market.
1148
PLAINTIFFS’ EXHIBIT NO. 80
Citizens Advisory Council on the Status
of Women, Job Related Maternity Benefits,
November, 1970.
JOB-RELATED MATERNITY BENEFITS
November 1970
CITIZENS’ ADVISORY COUNCIL ON THE STATUS OF WOMEN
U.S. Department of Labor, Room 4211
Washington, D. C. 20210
eT ee ee
1149
CITIZENS’ ADVISORY COUNCIL ON THE STATUS OF WOMEN
Honorable Jacqueline G. Gutwillig, Chairman
Lt. Colonel, U.S. Army (Ret.), Regional Volunteer Advisor,
The National Foundation—March of Dimes
Miss Virginia R. Allan
Executive Vice-President
Cahalan Drug Stores, Inc.
Member, Board of Regents
Eastern Michigan University
Miss Nola A. Allen
Attorney at Law
Dr. Margaret Long Arnold
Honorary President
General Federation of
Women’s Clubs
Mrs. Diane G. Bethel
Executive Assistant
U.S. Citizens Committee
for Free Cuba
Mrs. Lorraine L. Blair
Financial Consultant
President
Lorraine Blair, Inc.-
Investments
Dr. Rita Ricardo Campbell
Senior Fellow
Hoover Institution
Mrs. Julie Casterman Connor
Folk Music Entertainer &
School Teacher
Mrs. Marie Hamel
Vice President
Hamel’s Dairy & Ice Cream Co., Inc
Mrs. Mary J. Kyle
Editor & Publisher
Twin Cities Courier
Television Editorial Commentator
Miss Margaret J. Mealey
Executive Director
National Council of Catholic Wome:
Miss Hazel Palmer
Attorney at Law
Former President, National
Federation of Business &
Professional Women’s Clubs
Mrs. Sara H. Revercomb
Civic Leader & Former
School Teacher
Honorable Patricia Saiki
Member
Hawaii State Legislature
Miss Rachel E. Scott
Research Department,
Department of Pediatrics
Johns Hopkins University
1150
Miss Sarah Jane Cunningham
Attorney at Law
Vice-President, International
Federation of Business &
Professional Women’s Clubs
Mrs. Mary Charles Griffin
Civic Leader &
Businesswoman
Miss Maxine R. Hacke
Executive
Warren Petroleum Corp.
Mrs. Yetta Wasserman
Civic Leader & Past President
Cleveland Section, National
Council of Jewish Women
Mrs. Irene Wischer, President
Paladin Pipeline Co.
Sr. Director & Executive Officer
Panhandle Producing Co.
Mrs. Catherine East
Executive Secretary
1151
CITIZENS’ ADVISORY COUNCIL ON THE STATUS OF WOMEN
Washington, D. C. 20210
CHAIRMAN
Mrs. Jacqueline G. Gutwillig
Arizona
JOB-RELATED MATERNITY BENEFITS
The Council adopted the following Statement of Principles
on October 29, 1970:
Childbirth and complications of pregnancy are, for
all job-related purposes, temporary disabilities and
should be treated as such under any health insur-
ance, temporary disability insurance, or sick leave
plan of an employer, union, or fraternal society.
Any policies or practices of an employer or union,
written or unwritten, applied to instances of tem-
porary disability other than pregnancy should be
applied to incapacity due to pregnancy or child-
birth, including policies or practices relating to
leave of absence, restoration or recall to duty,
and seniority.
No additional or different benefits or restrictions
should be applied to disability because of preg-
nancy or childbirth, and no pregnant woman em-
ployee should be in a better position in relation
to job-related practices or benefits than an em-
ployee similarly situated suffering from other dis-
ability.
General Background
1. There is now no uniformity of treatment for disability
because of pregnancy under existing job-related insur-
| ance and leave with pay systems providing protection
| against medical costs and/or loss of income due to
1152
temporary disability. In the United States absences
from employment necessitated by childbirth or compli-
cations of pregnancy are sometimes covered by job-
related temporary disability insurance and/or sick leave
plans. Sometimes such absences are excluded from
such plans or included with special limits. Job-related
health insurance plans may cover hospital and/or other
medical costs associated with pregnancy; may cover such
costs with special limitations; or may not cover mater-
nity medical costs at all. Sometimes employees have
reemployment rights after absence of a given number
of weeks due to pregnancy; sometimes pregnancy is
reason for discharge.
Considerable interest has been evidenced in this subject
by public and private employers and unions in recent
months. The Council hopes, in answer to requests, that
it may be of service by suggesting what seems to us to
be the most equitable and reasonable approach under
our present system of private and government social
benefits.
2. There are no Government data available on the extent
to which medical costs of childbirth are covered in pri-
vate health insurance programs; nor are there any data
available on the extent to which loss of income due to
absence because of childbirth is covered by private sick
leave or temporary disability insurance programs.
Federal Social Security System
3. The Federal social security system of the United States
does not have a national health program or insurance
against loss of income for employed persons who are
unable to work because of temporary disability. Euro-
pean countries provide maternity benefits within such
Re ee ee Ee EE nF OO a ee i ee ee
1153
a framework. In no European country does an employer
pay a higher contribution for female employees than for
ma! employees.!
Federal Government Employees
4. The Federal government has for its own employees, a
sick leave system providing 13 days of sick leave at full
pay per year, which may be accumulated without limit.
Sick leave, vacation leave, and leave without pay may
be used for absences due to pregnancy. Government
employees have the option, with the Government shar-
ing in the cost, of subscribing to a variety of health in-
surance plans, all of which include costs of delivery and
pre-natal care in their family plan coverage.
Some State governments have sick leave systems, which
may or may not cover absences because of childbirth.
Temporary Disability Insurance
5. Insurance against loss of income for employed persons
unable to work temporarily because of disability is usu-
ally called “temporary disability insurance;” it may be
government-sponsored or provided by employers, unions,
or fraternal groups. Temporary disability insurance usu-
ally provides for less than full pay for maximum periods
of about 26 weeks. Sick leave plans ordinarily provide
full pay for short periods each year, with some plans
permitting accumulations of unused leave from year to
year.
! U.S. Department of Health, Education, and Welfare, Social Se-
curity Administration: Social Security Programs throughout the
World—-1969, Research Report No. 31, pp. 10, 14, 22, 58, 62, 72,
74, 80, 86, 98, 110, 114, 136, 154, 164, 176, 178, 180, 196, 202,
204, 218, 226, and 242.
1154
6. Government-sponsored temporary disability insurance
systems exist in California, Hawaii, New Jersey, New
York, Rhode Island, and Puerto Rico. The railroad in-
dustry also has a temporary disability insurance system
administered by the Railroad Retirement Board. These
systems are financed solely by employee contributions
or by joint employer-employee contributions.
Of the State laws, only those of New Jersey and Rhode
Island require payment of benefits for a normal delivery,
and they put limitations on these benefits which are not
applicable to other disabilities.2 Cases of abnormal de-
livery are usually covered.
7. Some employers and some State temporary disability
systems treat childbirth as a temporary disability and
some consider it a “normal physiological condition.”
The Council concluded that for purposes of employ-
ment it is a temporary disability. Economically it
makes no difference whether an employee is unable to
work at his regular job because of pregnancy or be-
cause of hernia, ulcers, or any other illness or acci-
dent; in any case he or she suffers loss of pay and
has extra medical expenses.
The notion that pregnancy is a “normal physiological
condition” has been advanced as a reason for denying
women benefits provided for temporary disabilities and
2 Those interested in further details on temporary disability in-
surance in the U.S. should see the Citizens’ Advisory Council on
the Status of Women, Report of the Task Force on Social Insur-
ance and Taxes, p. 8 et seq. and p. 45 et seq.; also U.S. Department
of Labor, “Comparison of State Unemployment Insurance Laws,”
BES No. U-141, Rev. August 1970.
ee ee
SS Oe ee abe
1155
occasionally as a reason for providing leaves of absence
not provided for other disabilities. Since there are no
existing systems or guides for giving leave of absence
or insurance benefits for “normal physiological condi-
tions,” a variety of policies for this special category re-
sult. Some of these create an inequity between benefits
because of disability due to pregnancy and benefits be-
cause of a!]l other temporary disabilities. A woman
about to give birth is temporarily disabled for work, is
under the care of a physician, and is usually hospital-
ized.
Special Benefits
8. The Council considered whether special benefits for ma-
ternity not provided for other temporary disabilities are
ever justified. Since women are subject to all the other
disabilities of mankind, it can be argued that additional
benefits are needed for pregnancy. This line of reason-
ing treats women as a class and ignores individual dif-
ferences. The essence of the fair employment concept
is individual rather than class treatment.
Individual women who are not pregnant and individual
men may be absent more in a given period of time be-
cause of temporary disabilities than women who are
having babies during that period. The 1961 survey of
the Civil Service Commission of sick leave usage by Fed-
eral employees shows small differences in the percent-
ages of men and women having zero sick leave balances
and negative sick leave balances (those who have been
advanced sick leave), indicating that the present system
is inadequate for a small percentage of both men and
women.
Annual Public Health Service Surveys show that wo-
men and men lose about the same amount of time
1156
from work because of acute disabilities, including child-
birth and complications of pregnancy. In 1968, men
averaged 5.2 days per year and women 5.9 days per
year; in 1967 it was 5.3 and 5.6 days per year.
Giving special treatment for pregnancy will inevitably
lead to situations in which men and other women who
are suffering from disabilities other than pregnancy will
have less benefits than pregnant women. This is not
sociologically or economically justified and would be
divisive. In addition, in the United States where the
employer frequently pays all or part of the cost of
such benefits, such policies could very well result in
reluctance to hire women of childbearing age.
1157
of health insurance and temporary disability insurance pol-
icies, shows that the difference in cost between health in-
surance coverage that includes care for pregnancy and
childbirth and that which does not is small. Likewise,
the cost of including a maternity benefit in temporary
disability insurance is small. Most employment-related
group health insurance policies include pregnancy as do
an estimated one-half of the temporary disability insur-
ance policies.
Aetna has given the Council estimated premiums for a
work group that is made up of 31 to 40 percent of fe-
male employees. The estimated rates are the rates before
discount for size; larger employers would pay less. For
a typical good hospital, surgical and major medical pack-
age, the cost for coverage for a family would be $42.11
per month if pregnancy were not included. If maternity
PLAINTIFFS’ EXHIBIT NO. 81
Citizens Advisory Council on the Status of Women, In-
formation from Insurance Industry Relating to Coverage month more per employee. If the wives of employees
of Childbirth in Health Insurance and Temporary Dis- are inctuded this would add $4.07 per employee to the
ability Insurance. cost.
benefits are included for female employees only (not for
wives of male employees) the cost would be 92¢ per
CITIZENS’ ADVISORY COUNCIL
ON THE STATUS OF WOMEN
Aetna pointed out that these figures are averages. Vari-
ations in medical costs among regions of the country and
Room 4211, Department of Labor Building among types of industry would influence actual premiums,
Washington, D.C. 20210 as well as discounts for size. The proportionate increases
202-961-3791 for pregnancy coverage, however, would be about the same
whatever the basic cost.
Information from Insurance Industry Relating to
Coverage of Childbirth in Health Insurance
and Temporary Disability Insurance
(Employment-Related Group Policies)
The Aetna experts estimated that for a typical employer
of 500 employees, with 31 to 40 percent female employees
of an average age and marital status mix, a good hospital,
surgical, major medical package without maternity coverage
would have a total cost of $194,400 per year. With full
coverage for both female employees and wives of male
Information from a representative of the Aetna Insurance
and Casualty Company, which writes a goodly percentage
1158
employees, the cost would be about $212,900, or a 9 per-
cent difference, most of the difference being for coverage
of the wives of male employees.
A surprisingly high percentage of health insurance policies
cover the spouses of male employees for maternity bene-
fits but exclude the female employees. A Health Insur-
ance Association study of employment-related group poli-
cies issued in 1969 showed that 61 percent covered mater-
nity benefits for wives and female employees, 9 percent
had coverage of wives of male employees only, and | per-
cent had coverage for the female employees only. The
remaining 29 percent of policies written did not cover
maternity.
The Council has also been given estimates on cost of in-
cluding maternity leave in a typical temporary disability
insurance policy for an employer who has 31 to 40 per-
cent female emplovees. The Aetna experts state that a
$60.00 a week benefit beginning the 8th day after an ac-
cident or the onset of illness and payable for a maximum
of 26 weeks, would cost $5.70 per month per employee
without a benefit for maternity leave. Aetna has had ex-
perience only with coverage of maternity benefits for a
maximum of 6 weeks. Such a benefit would add 60¢ per
month per employee to the cost — approximately a 10
percent increase. It was not clear as to why Aetna poli-
cies include only a 6-week benefit.
A 1969 study by the Society of Actuaries of temporary
disability insurance policies issued by 11 large insurance
companies showed that 9,700 policies issued had some
maternity benefit, whereas 10,700 did not. In other
words, a little less than one-half of these group policies
issued included coverage for maternity. This study did
ee ee oe
1159
not include policies issued under State temporary disability
insurance laws.
In summary, the economic data available concerning cost
and the extent of present coverage indicates that it is en-
tirely feasible for employers to provide the same economic
benefits for absence due to childbirth as for absence due
to other temporary disabilities.
June 9, 1971
PLAINTIFFS’ EXHIBIT NO. 82
Jacqueline Gutwillig, Chairman, Citizens Advisory Coun-
cil on the Status of Women, Address before Conference
of Interstate Association of Commissions on the Status
of Women, St. Louis, Missouri, June 19, 1971.
Address by
Jacqueline G. Gutwillig, Chairman
Citizens’ Advisory Council on the Status of Women
June 19, 1971
Conference of Interstate Association of Commissions
on the Status of Women
St. Louis, Missouri
* * *
A word about the Council for those of you who are
not familiar with us. In 1963 President Kennedy’s Com-
mission on the Status of Women in its report, American
Women, recommended the establishment of a Council along
with an Interdepartmental Committee on the Status of Wo-
men. These two groups were established immediately by
Executive Order. The Interdepartmental Committee is
composed of Cabinet officers and Directors of special
1160
agencies. The Council members are private citizens ap-
pointed directly by the President and serve for an indeter-
minate period.
* * *
In May 1970 the Interdepartmental Committee on the
Status of Women asked the Council to evaluate a report
prepared by a subcommittee of the Interdepartmental Com-
mittee appointed by the previous Administration. The re-
port included a proposal for additional leave at part pay
for maternity purposes for Federal employees. (Federal
employees can use sick leave and annual leave for pur-
poses of childbirth and can take leave without pay as
necessary to supplement earned leave.)
A project group of three Council members was assigned
to prepare a working paper which the entire Council dis-
cussed during its subsequent meeting. It was clear from
that discussion that the Council felt it was very important
not to provide benefits that would discourage Federal
agencies from hiring women of childbearing age. We did
not want to damage women’s opportunities for employ-
ment under the guise of protecting them. Furthermore,
the members felt that the essence of equal opportunity
was to treat women and men as individuals, not as classes.
Among the background materials considered by the
Council members at that meeting were an excerpt from
a statement presented by Dorothy Haener of the United
Automobile Workers Women’s Department to the White
House Conference on Food, Nutrition, and Health; the
recommendations of the 1963 President’s Commission on
the Status of Women; and the 1968 Council Task Force
Renort on Social Insurance and Taxes. Our examination
of their recommendations indicated that these groups had
the same concerns as we do today. We also reviewed
7A tata”
——
1161
provisions for maternity leave in Western European coun-
tries.
Following the request for the Interdepartmental Com-
mittee to look at the Federal Government system for its
own employees, there were several developments that led
us to broaden the scope of our consideration to cover ma-
ternity leave generally. A number of requests for technical
advice on the subject came to the Council from private
employers and unions, including unions representing air-
line stewardesses, who only recently had won the right
to continue employment after marriage. In addition, the
Equal Employment Opportunity Commission was review-
ing its case decisions on maternity preparatory to issuing
formal guidelines. The Council, therefore, decided to try
to develop a general policy recommendation suitable for
private and public employers.
We found in our review and discussion that some seman-
tic confusion exists because maternity leave has been a
broad term to encompass not only leave for childbirth
but in some contexts for the total period of pregnancy,
and subsequent leave for child care. This confusion no
doubt arose because in earlier years many women were
required to stop work as soon as they knew they were
pregnant. There are still some public school systems with
this kind of requirement. Most school systems require
that a teacher begin “maternity leave” at the end of the
4th or 5th month. Furthermore a few school systems
still require that teachers cannot return to teach for a
full year following the birth of a child. All these various
kinds of leave have been referred to as maternity leave.
I suspect that some of the reactions we get from employ-
ers when discussing this subject arise from this confusion.
1162
The Council decided that for job-related purposes mater-
nity leave should be that period of time a woman is unable
to work because of childbirth or complications of preg-
nancy. We saw no rationality in requirements that preg-
nant women take leave while they are still physically able
to work. Such policies no doubt are a hangover from the
days, not so ancient, when pregnant women were shut up
at home — when pregnancy was considered obscene. Nat-
urally we held no brief for such views.
The subject of child rearing we felt was a separate topic
that required separate treatment as both men and women
have the responsibility to rear children. Therefore rearing
of children is not considered in our paper on maternity
benefits.
The Council’s policy relates only to the period of time
a woman is unable to work because of childbirth or com-
plications of pregnancy. I believe this is one of the most
important contributions of our consideration of this issue
— that is, the semantic separation of leave for childbirth
from leave for child rearing.
We also found in our review of background materials
that absence due to childbirth is sometimes treated as a
temporary disability and sometimes as a special condition
warranting special arrangements.
The Council concluded that childbirth and complications
of pregnancy are temporary disabilities for employment
purposes because they have all the significant characteris-
tics of temporary disabilities — (1) loss of income due to
temporary inability to perform normal job duties, and
(2) medical expenses. Additionally, childbirth has two
clear characteristics which are associated with only the
1163
more severe temporary disabilities — hospitalization and
possible death.
The theory that pregnancy is a “normal physiological
condition” has been advanced as a reason for treating
pregnancy as a special condition warranting special ar-
rangements. I don’t know what “normal physiological
condition” means; the more one analyzes the words, the
more confusing they become, but I’m sure of one thing
— medical care, hospitalization, and death are not nor-
mally associated with this phrase. I also know as a fact
that the results of applying this concept has generally
been to deny women benefits to which they are justly
entitled.
Another reason that is advanced for denying women
the benefits provided for other temporary disabilities is
that pregnancy is “voluntary”. We all know this is a
weak rationalization. Pregnancy is very frequently not
voluntary and besides temporary disability benefits are
provided for other equally voluntary conditions — such
as attempted suicide. Pregnancy is no more voluntary
than injuries from an automobile accident while driving
intoxicated and no more voluntary than the conditions
associated with long term smoking.
Since we were naturally concerned with the economic
impact on employers of our conclusion that childbirth is
a temporary disability, we gathered all the data we could
find indicating economic consequences.
We found from the annual health interview survey con-
ducted by the Public Health Service, that in 1968 men
lost on the average 5.2 days per year because of disabil-
ities and women lost 5.9 days. In 1967, the figures were
5.3 and 5.6 days per year. In 1966, men lost more time
1164
from work than women — 5.9 days for men and 5.6 days
for women. These figures include time lost from work be-
cause of delivery and complications of pregnancy and the
post-childbirth period.
The Public Health Service has done a special tabulation
for us with a finer breakdown of disability conditions than
is published in their regular material, which shows the rel-
atively minor amount of time lost from work because of
deliveries and disorders of pregnancy and the post-childbirth
period. In the year July 1966 to June 1967 an average
of two-tenths (.2) of a day per employed woman was lost
from work for this reason. By contrast almost eight-tenths
(.8) of a day was lost by women because of injuries and
1.0 day by men because of injuries. Women lost 1.3 days
per year because of respiratory conditions and men lost
1.2 days. In other words, time lost from work for child-
birth is only a fraction of the time lost because of other
conditions.
We had a representative of the Aetna Insurance and
Casualty Company, which writes a high proportion of
health insurance and temporary disability insurance poli-
cies, present at our second discussion on maternity leave.
The Aetna company prepared estimates for us in consid-
erable detail but I shall give you only those data and
highlights that will help you understand better how we
arrived at our conclusion.
Information from that company shows that the differ-
ence in cost between health insurance coverage that in-
cludes care for pregnancy and childbirth and that which
does not is very small. Likewise the cost of including a
maternity benefit in temporary disability insurance is small.
Interestingly enough most employment-related group health
6 Nee Settee «oe ere!
1165
insurance policies include pregnancy benefits, but pregnancy
benefits are included in approximately only one-half of the
temporary disability insurance policies.
A 1969 study by the Society of Actuaries of temporary
disability insurance policies issued by 11 large insurance
companies showed that 9,700 policies issued had some ma-
ternity benefit, whereas 10,700 did not. In other words,
a little less than one-half of these group policies issued in-
cluded coverage for maternity. This study did not include
policies issued under State temporary disability insurance
laws.
However, we were surprised to learn of the number of
health insurance policies that cover the spouses of male
employees for maternity benefits but exclude the female
employees. A health insurance association study of em-
ployment-related group policies issued in 1969 showed that
61 percent covered maternity benefits for wives and female
employees, 9 percent had coverage of wives of male em-
ployees only, and | percent had coverage for the female
employees only. The remaining 29 percent of policies
written did not cover maternity.
In recent discussions about our recommendations, we
have been asked whether insurance companies will write
health insurance and temporary disability insurance poli-
cies covering maternity. The answer is categorically yes.
The national experts we have been in touch with have
never heard of an insurance company that would not. The
general rule is that insurance companies will write any cov-
erage the group wants. We did learn that all the tempo-
rary disability insurance policies written by Aetna have
had a maximum coverage of six weeks for maternity,
which seems unduly short and would not be in line with
our recommendation unless comparable maximum periods
1166
were set for other disabilities. We were not able to find
out whether this was Aetna policy or whether no em-
ployer or union had wanted a longer coverage.
We ‘ave also been asked whether our policy would ad-
versely affect an employer with respect to workmen’s
compensation laws. The experts at the Federal Labor
Department tel] us that there would be no effect unless
pregnant women have a higher accident rate than other
employees and even then only larger employers would be
affected. The cost of workmen’s compensation coverage
for the largest employers (about one-fourth of the total
employers, employing about three-fourths of covered em-
ployees) is based in part on an experience rating, or ac-
tual costs of covering that employer. There are no known
data indicating any higher accident rate for pregnant women.
In summary, the economic data we gathered concern-
ing cost and the extent of present coverage indicated that
it is entirely feasible for employers to provide the same
economic benefits for absence due to childbirth as for
absence due to other temporary disabilities.
After these findings we adopted the Statement of Prin-
ciple. A draft of a back-up paper was then prepared and
sent to Council members by mail for comment. We dis-
tributed the finished paper as widely as our resources per-
mitted, sending it to Chairmen of State commissions, per-
sons On our mailing list who had specifically requested
our publications, and a limited list of reporters who had
authored positive stories in the past. A number of news-
papers did stories, and one — the Louisville Courier-Journal
— did a survey of practices of local employers.
Since the paper was issued, several teachers have brought
court actions to try to change the practices of school
boards. In both of the cases where we have secured full
1167
information — Chesterfield County, Virginia and Cleveland,
Ohio — the Council’s recommendations were cited in the
plaintiffs’ briefs. In the Chesterfield County case, Judge
Robert R. Merhige, Jr. adopted the Council’s position in
the following excerpt from his opinion:
The maternity policy of the School Board denies
pregnant women such as Mrs. Cohen equal pro-
tection of the laws because it treats pregnancy
differently than other medical disabilities. Be-
cause pregnancy, though unique to women, is like
other medical conditions, the failure to treat it
as such amounts to discrimination which is with-
out rational basis, and therefore is violative of the
equal protection clause of the Fourteenth Amend-
ment.
In an almost identical case in Cleveland, Ohio, 2 Federal
district court judge ruled that such a provision was not a
violation of the Fourteenth Amendment. This case is be-
ing appealed.
1168
PLAINTIFFS’ EXHIBIT NO. 83A
Elizabeth Duncan Koontz, Childbirth and Child
Rearing Leave: Job Related Benefits, 17 N.Y. Law
Forum No. 2 (1971)
CHILDBIRTH AND CHILD REARING LEAVE:
JOB-RELATED BENEFITS
ELIZABETH DUNCAN KOONTZ”
l. DEFINITION OF TERMS
Discussions of maternity leave in the United States have
been characterized by semantic confusion, much emotion,
and few facts. Maternity leave is sometimes used to refer
to leave for a period encompassing all of pregnancy and
six months to a year following childbirth. To some the
term means a period of four months or so prior to child-
birth and six months to a year following childbirth.'
Others use the phrase to include only the period during
which a woman is actually disabled by childbirth for paid
employment outside the home — a very short period for
most women.2 To some it means a period during which
* Director, Women’s Bureau, U.S. Dep’t of Labor. The views in
this article are those of the author. They are not presented as the
views of the Department of Labor or any other government agency
or official body.
| See Address by Jacqueline G. Gutwillig, Chairman of the Citi-
zens’ Advisory Council on the Status of Women, at the Conference
of Interstate Association of Commissions on the Status of Women,
in St. Louis, June 19, 1971 [hereinafter cited as Gutwillig Address] .
2 This is a standard often applied in state legislation providing
for maternity coverage under temporary disability programs. See
text and accompanying footnotes pp. 484-86 infra: U.S. Dep’t of
(cont'd)
1169
the employee is paid; others are referring to leave without
pay.2 Most persons concerned with women’s rights include
in their concept of maternity leave some right to reem-
ployment without loss of seniority.4
The confusion arose, no doubt, because in earlier years
many women were required by employers to stop work as
soon as they knew they were pregnant and were not per-
mitted to return for a year or two following childbirth,
if they were permitted to retum at all.5 Thus, liberaliza-
tion of limits on the pregnant woman’s right to work has
varied according to the views of legislators and private em-
ployers.
The Citizens’ Advisory Council on the Status of Women®
studied the subject and concluded that for job-related
(Footnote 2 cont’d)
Labor, Growth of Labor in the United States 294 (1967); U.S.
Dep’t of Labor, 1969 Handbook on Women Workers 276-77. A
number of states prohibit employment of women in one or more
occupations for several weeks preceding and following childbirth.
Id, at 276.
3 See generally Citizens’ Advisory Council on the Status of Women,
Repott of the Task Force on Labor Standards 32 (1968).
4 E.g., Citizens’ Advisory Council on the Status of Women, Job
Related Maternity Benefits (Statement of Principles adopted on Oct.
29, 1970), reprinted in Citizens’ Advisory Council on the Status of
Woman, Job Related Maternity Benefits 1 (Nov. 1970); National Or-
ganization For Women, What It’s All About (goals) (undated).
5 Gutwillig Address, supra note 1, at 4.
© The Council was established on Nov. 1, 1963, by Exec. Order
No. 11,126, 3 C.F.R. 971 (1964), by President John F. Kennedy
on the advice of the President’s Commission on the Status of Women
and is composed of twenty private citizens who are appointed by
the President for indeterminate terms. U.S. Dep’t of Labor, 1969
Handbook on Women Workers, supra note 2, at 294.
1170
purposes, maternity leave should be defined as that period
(or periods) of time a woman is unable to perform her
job because of childbirth or complications of pregnancy.’
The Council concluded that it is irrational to require preg-
nant women to take leaves of absence while they are still
able to work. Such policies are left over from the days,
extending into this century, when pregnant women were
forced to remain at home—when pregnancy was viewed
» 8
as “‘obscene’’.° This feeling is still widespread, frequently
disguised as concern for the protection of women’s inter-
ests.? Perhaps it would help to alleviate the semantic
confusion if a new term were adopted to refer to leave
for childbirth and complications of pregnancy—a term
such as childbirth leave.
The subject of child rearing is a separate topic, requir-
ing separate consideration and treatment. Only women
can bear children, but both men and women are capable
of rearing children. The conceptual framework of child-
bearing and child rearing fits both present and future
reality better than a conceptual framework that assumes
that childbearing and child rearing are both solely the
responsibility of women. The young women feminists
insist, quite logically, that assumption by men of a full
share in the rearing of children would contribute to the
welfare of the whole family.!®
Citizens’ Advisory Council on the Status of Women, Women
in 1970, at 4 (1971).
8
Gutwillig Address, supra note 1, at 5.
9
See U.S. Dep’t of Labor, Laws on Sex Discrimination in
Employment 7 (1970).
10
See Transmittal Memorandum on Job-Related Maternity Bene-
fits from Jacqueline G. Gutwillig, Chairman to Citizens’ Advisory
Council on the Status of Woemn (undated).
117]
Il. RECOMMENDATION OF THE CITIZENS’
COUNCIL ON THE STATUS OF WOMEN
In 1970,the Citizens’ Advisory Council, after extensive
study, adopted a forceful Statement of Principles, suggest-
ing that childbirth and incapacity due to pregnancy be
treated by employers and health insurers as any other
temporary disability. The Council eschews discriminator-
ily favorable treatment for pregnant women, as well as
discrimination against these workers.'! The recommenda-
tion is especially important in view of the many state
laws and judicial decisions relating to maternity and em-
ployment. There is presently a trend in both of these
areas to permit women to continue to work closer to
the time of childbirth, but legislative progress particularly
has been sluggish.
cd * *
State Temporary Disability Insurance Laws
Rhode Island in 1942 was the first state to adopt a
compulsory temporary disability insurance program.” !t
was financed entirely by employee contributions of one
percent of wages to a monopolistic state-administered
fund. Rhode Island had few guides to follow, and its
legislation was quickly drawn. The original definition of
sickness provided as follows: “An individual shall be
deemed sick in any week during which, because of his
physical or mental condition, he is unable to perform any
service for wages.” 2% In 1946 the definition was changed
28
Ch. 1200. §1. [1942] R.I. Pub. 1..
29
Ch. 1200. § 2. [1942] R.I. Pub. 1..
1172
to read: ‘“‘An individual shall be deemed to be sick in
any week in which because of his physical or mental con-
dition, he is unable to perform his regular or customary
work.” 38
The Unemployment Compensation Board held that
pregnancy came within this definition and was, therefore,
compensable under the law.3! Unfortunately, however,
the board did not treat pregnancy like other physical
conditions. Eligibility for benefits in cases of pregnancy
did not depend on actual inability to work as required
in the law, but was based upon the existence of the con-
dition of pregnancy. In effect, any time a woman was
not working during the entire period of pregnancy, re-
gardless of the reason, she could draw benefits (provided,
of course, she met the basic requirements for eligibility.)?
In addition, the basic requirements for eligibility gener-
ally were so loosely drawn that a woman who voluntarily
withdrew from the labor market in January, 1943, after
earning fifty dollars a week for the first two weeks of
the month, and who became pregnant in January, 1945,
could receive benefits of $7.25 a week for 4.6 weeks in
January-March 1945, two years after she had withdrawn
from the labor market.33 — Under these conditions the
payments for pregnancy were a heavy drain on the sys-
tem. By the benefit year 1949-1950, the pregnancy claims
30
Ch. 1744. § 2. [1946] R.I. Pub. 1..
31
G. Osborn, infra note 40, at 11.5
32
U.S. Dep’t of Labor, Bureau of Employment Security, Rhode
Island Disability Insurance Program 41 (July 1954).
"-
1173
constituted 22.62 percent of all claims and 30.4 percent
of all benefits paid.*
Rhode Island has since drafted more stringent basis
eligibility requirements, and has moved from its unduly
loose interpretation of inability to work during pregnancy
to placing greater restrictions on pregnancy benefits than
are placed on benefits for other disabilities. A flat dollar
limit of $250 is allowed for pregnancy. For the calendar
year 1970, about ten percent of the eligible claims and
seven percent of the amounts paid were for pregnancy.*5
Since Rhode Island was the first state to adopt a tem-
porary disability insurance system, its experience was
scrutinized by other states. Its initial costly experience
with pregnancy probably led to the exclusion of pregnancy
in existing temporary disability insurance programs.*
New Jersey, which established its system in 1948, did
provide in 1961 for coverage of pregnancy for a period
beginning four weeks before the expected date of child-
birth and ending four weeks after childbirth.2”7 | Compli-
cations of pregnancy before and after this period are not
34
Id. at 65.
35
Dep’t of Employment Security, 1970 Statistical & Fiscal Digest
38 (1971); Letter from Dep’t of Employment Security to Citizens’
Advisory Council on the Status of Women, Aug. 4, 1971.
U.S. Dep’t of Labor, Womens’ Bureau, Maternity Protection of
Employed Women, Bull. No. 240, at 9 (1952). See also N. Sinai,
Disability Compensation for the Disabled Sick 59 (1949).
37
N. J. Stat. Ann., tit. 43, ch. 21. § 25 (1962).
1174
compensable.*8 About twelve percent of New Jersey’s
total benefit payments in 1970 were for pregnancy.
Grant Osborn, in a study of temporary disability insur-
ance, states the advantages and disadvantages of including
benefits for pregnancy.*® He points out that many women
fail to return to the labor force after pregnancy and states
that ‘“‘many believe that payment of disability benefits to
nonpermanent members of the labor force does not further
the purpose of the program and should be prohibited.”*!
In advancing the contrary view, he points out that “to
deny benefits in all cases of pregnancy constitutes discrim-
ination against a significant group in the labor force.”’4?
According to Osborn, employer groups and the insurance
industry seem to be indifferent to the issue of pregnancy
benefits; labor is divided, but the consensus is that higher
weekly basic benefits would be preferable to granting bene-
fits for pregnancy.
State Unemployment Insurance Laws
Thirty-eight states have special pregnancy disqualifica-
tions in their unemployment insurance laws.44 A com-
prehensive statement concerning unemployment insurance
38 NJ. Stat. Ann., tit. 43, ch. 21. 83%c) (1962).
39 NJ, Dep’t of Labor & Indus., Div. of Planning & Research,
Temporary Disability Insurance Statistics for New Jersey 1949-1970
tables 25 & 30 (May 1971).
40 G. Osborn. Compulsory Temporary Disability Insurance in
the United States (1958).
41 7g.
42 Ia.
43 Ia.
44 See Manpower Admin., U.S. Dep’t of Labor, Comparison of
State Unemployment Insurance Laws. Comparison Revision, ser.
2, No. 4 (Jan. 5, 1970).
AA ee eee
1175
and pregnancy is included in the 1968 report of the Task
Force on Social Insurance and Taxes of the Citizens’ Ad-
visory Council on the Status of Women. The Task Force
points out that women are usually physically able to work
during part of their pregnancies and thus fail to meet
basic eligibility requirements for the entire period. The
report also notes that women who are required by preg-
nancy to leave their jobs encounter obstacles to reemploy-
ment.45
45 The Task Force stated:
the special provisions arise out of the difficulties of de-
termining the benefit eligibility of pregnancy women.
Since, under all our unemployment insurance laws, bene-
fits are payable only to those unemployed workers who
are able to work and available for work, a pregnant
woman who is physically unable to work or does not
want to work is not eligible for benefits under the nor-
mal 9 months of their pregnancy, even though they
would ail have some period of inability to work, at
least at the time of childbirth. How long before con-
finement a woman becomes unable to work depends
also on the nature and physical demands of that job.
If a pregnant woman loses her job, her pregnancy
presents an obstacle to reemployment. There are, how-
ever, serious policy implications involved in measuring
an individual’s availability for work in terms of employer
willingness to hire individuals in that category whether
the category is pregnant women, workers over 55, the
physically or mentally handicapped, or members of mi-
nority groups.
Although the special provisions may have administra-
tive advantages, they are not without their own diffi-
culties. More important, they are inequitable to many
women, particularly those who have lost their jobs be-
cause of lack of work while pregnant.
Citizens’ Advisory Council on the Status of Women, Report of the
Task Force on Social Insurance and Taxes 24 (1968).
1176
For example, under Minnesota law a woman “laid off”
by her employer at the end of the fifth month of preg-
nancy would not be entitled to unemployment insurance
for any part of the pregnancy, even though she were able
and eager to work. Furthermore, after she returned to
work, she would not be eligible for unemployment insur-
ance in the event of a lay-off until she had been employed
six weeks,
In view of constitutional challenges in the courts and
the likelihood of passage of the Equal Rights Amendment
and other legislation extending prohibitions against dis-
crimination because of sex, the Labor Department in
December of 1970 urged and warned states to eliminate
sex-discriminatory provisions, specifically mentioning the
pregnancy provisions.*” Results have been negligible.
IV. FEDERAL GUIDELINES FOR MATERNITY LEAVE
The Office of Federal Contract Compliance, which ad-
ministers Executive Order 1246, prohibiting discrimina-
tion by federal contractors has issued guidelines prohibiting
46 Minn. Stat. Ann. §268.09 (1959), as amended (Supp. 1971).
47 US. Dep’t of Labor, Unemployment Insurance Letter No.
1097 (Dec. 31, 1970). An up to date list of pregnancy disqual-
ification provisions appears in Manpower Admin., Comparison of
State Unemployment Insurance Laws, supra note 44.
48 Exec. Order No. 11.246.3 C.F.R. 339 (1965) enunciated a
policy of equal employment opportunity in government employment
and included federal contractors, subcontractors, and federally assisted
construction contracts in regard to race, creed, color and national ori-
gin. This order was amended in 1967 by Exec. Order No. 11.375.32
Fed. Reg. 14303 (1967), to expressly include sex-discrimination.
1177
discriminatory treatment in regard to reinstatement and
seniority of women taking maternity leave. The Com-
pliance Office dictates that employers must permit leaves
of absence for reasons of pregnancy, even where the em-
ployer has formulated no general policy permitting such
leaves.4? While these guidelines do not prohibit an em-
ployer from requiring a woman to take leave when she
is able to work, the Office of Federal Contract Compli-
ance has stated on another occasion that the determina-
tion of when maternity leave is to commence ordinarily
is to be made by the employee and her physician.
50 The O.F.C.C. Guideline reads in pertinent part:
(1) Women shall not be penalized in their conditions of
employment because they require time away from work
on account of childbearing. When, under the employer's
leave policy the female employee would qualify for leave,
then childbearing must be considered by the employer
to be a justification for leave of .vsence for female em-
ployees for a reasonable period of time. For example,
if the female employee meets the equally applied mini-
mum length of service requirements for leave time, she
must be granted a reasonable leave on account of child-
bearing. The conditions applicable to her leave (other
than the length thereof) and to her return to employ-
ment, shall be in accordance with the employer’s leave
policy.
(2) If the employer has no leave policy, childbearing must
be considered by the employer to be a justification for a
leave of absence for a female employee for a reasonable
period of time. Following childbirth, and upon signifying
her intent to return within a reasonable time, such female
employee shall be reinstated to her original job or to a
position of like status and pay, without loss of service
credits.
Job Policies and Practices, 41 C.F.R. 860-20.3(g\ 1)-(2) (1971).
1178
The Equal Employment Opportunity Commission
(E.E.0.C.)*! has not issued guidelines specifically dealing
with maternity leave, but has established certain principles
50 On November 12, 1970, the Office of Federal Contract Com-
pliance issued the following question and answer to its agency com-
pliance officers:
Q. May a contractor specify the time when maternity
leave shall begin?
A. Not normally. This is primarily a medical decision
which is not reasonable for a contractor to make in
terms of a blanket policy. The time when a woman
leaves before childbearing is normally a matter be-
tween the pregnant employee and her doctor.
Memorandum to heads of Agencies from John L. Wilkes, Director,
Office of Contract Compliance, Dep’t of Labor, Questions and An-
swers Concerning Sex Discrimination Guidelines, Nov. 12, 1970.
5! The Equal Employment Opportunity Commission, created pur-
suant to $705 of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
$82000e et seq. (1964), is charged with administering and enforcing
Title VII. Generally, E.E.0.C. investigations are initiated by the fil-
ing of a charge by a person alleging employment discrimination. This
charge must be filed within ninety days of the alleged unlawful prac-
tice, except that if the state or locality where the practice occurred
has a law dealing with the subject, the charge must be filed within
two hundred and ten days or within thirty days of termination of
the state or local proceedings. If the alleged unlawful employment
practice has occurred in a state or locality which has a law prohib-
iting the practice alleged, the E.E.0.C. must defer the charge to that
state or local agency for sixty days (unless that agency terminates
earlier) before the Commission can assume jurisdiction. After a full
investigation of the issues raised in the charge, the Commission issues
a Finding of Fact on the allegations. The parties involved then have
an opportunity to file objections and cross-objections to the Finding
of Fact. The Finding of Fact is used as the basis for the issuance
(cont'd)
1179
regarding rehiring policy through its decisions.52 Sonia
Pressman Fuentes, Director of the Legislative Counsel Di-
vision of the Office of the General Counsel, E.E.0.C., has
expressed the Commission’s opinion that employers must
make reasonable provisions for childbirth leave. She feels
that the Commission’s principles require that employers
permit maternity leaves with a right to reinstatement for
married and unmarried women.*?
(Footnote 51 cont'd)
of a Commission decision. If the decision holds that reasonable
cause exists to believe that the respondent has violated Title VII
as alleged, the E.E.0.C. attempts to negotiate an informal concili-
ation agreement. Failing settlement through conciliation, the Com-
mission will issue a Notice of Right to Sue which authorizes the
charging party to institute a civil action in the appropriate United
States district court. A Notice of Right to Sue can be requested
thirty days after the charge has been filed or at any time there-
after during the proceedings. Without first filing a charge with the
Commission and receiving a notice of right to sue authorization,
the complaining party may not institute suit under Title VII, 42
U.S.C. $2000e et seg. (1964).
52 E.E.0.C. Decision No. 71-562, CCH Employment Practices
Guide, 96184, at 4312 (Dec. 4, 1969); E.E.0.C. Decision No. 71-
413, CCH Employment Practices Guide, 96204, at 4346 (Nov. 5,
1970); E.E.0.C. Decision No. 71-308, CCH Employi..nt Practices
Guide, 96170, at 4286 (Sept. 17, 1970; E.E.0.C. Decision No. 70-
600, CCH Employment Practices Guide, 46122, at 4217 (Mar. 5,
1970); E.E.0.C. Decision No. 70-360, CCH Employment Practices
Guide, 96084, at 4130 (Dec. 16, 1969).
53 Mrs. Fuentes stated:
The Commission has established the principle that, as a
general rule, an employer may not terminate an employee
who is compelled to cease work because of pregnancy
without offering her, alternatively, a leave of absence
(cont'd)
1180
The Equal Employment Opportunity Commission, ap-
peared as amicus curiae in Schattman v. Texas Employment
Commission,™ arguing that an employer’s policy of com-
pelling female employees to resign after reaching a certain
month of pregnancy constitutes a violation of Title VII of
the Civil Rights Act of 1964. The Commission took the
position that such a policy would be acceptable under Title
VII only where it could be shown that all or substantially
all women were unable to perform safely and efficiently
the duties of their particular jobs upon reaching the time
established by the employer.*
(Footnote 53 cont'd)
with the right of reinstatement to the position vacated
at no loss of seniority or any of the other benefits and
privileges of employment. While the employee is out on
matemity leave, the employer should attempt to keep
her job open or filled on a temporary basis. The Com-
mission has found that, absent a showing of business nec-
essity, an employer’s conditioning of maternity leave on
two years of employment violated the Act where leaves
of absence and disability leaves were not subject to any
similar requirement, that an employer’s policy of granting
maternity leave only to married female employees violated
the Act in the absence of a provision for the termination
of unmarried fathers, and that, absent a showing of busi-
ness necessity, an employer’s refusal to credit an employee
for time spent on maternity leave taken prior to the ef-
fective date of the Act constituted an unlawful present
effect of past discrimination.
Fuentes, Federal Remedial Sanctions: Focus on Title VII, 5 Valp.
U.L. Rev. 390-91 (1971).
54 330 F. Supp. 328 (W.D. Tex. 1971).
55 Brief for E.E.0.C. as amicus curiae, Schattman v. Texas Em-
ployment Comm'n, id.
1181
The Equal Employment Opportunity Commission has
also held in violation of Title VII an employer’s insurance
plan affording maternity benefits only to those employ-
ees who have head-of-household status, as well as a
group health insurance plan providing immediate mater-
nity benefits for wives of male employees but condition-
ing the eligibility of female employees on two years of
employment.*” More recently, the Commission has found
that women employees were unlawfully discriminated against
by an employer’s insurance program which specifically
excluded pregnancy from the list of physical disabilities
for which weekly benefits were paid.
V. LEAVES OF ABSENCE AND INSURANCE COVERAGE
There is very little data on the extent to which women
employees have any job protection following childbirth or
the extent to which health insurance, temporary disability
insurance, and sick leave plans exclude childbirth. The
Bureau of Labor Statistics in a 1970 study of 252 col-
lective bargaining agreements covering five thousand work-
ers or more, found that seventy-four (about twenty-nine
per cent) of the agreements had some leave-of-absence pro-
vision for maternity. These seventy-four agreements ex-
tended coverage to almost one-fourth of the total number
56 E.E.0.C. Decision No. 70-495, CCH Employment Practices
Guide, 96110, at 4162 (Jan. 29, 1970).
57 E.E.0.C. Decision No. 71-1100, CCH Employment Practices
Guide, 96197, at 4333 (Dec. 31, 1970).
58 E.E.0.C. Decision No. 71-1474, CCH Employment Practices
Guide, 96221, at 4382 (Mar. 19, 1971).
1182
of employees covered by such plans. The data does not
indicate whether the plans provided compensation during
leaves of absence.5? The same study shows that eighty-
two of the agreements provided for sick leave, but does
not state how many of the plans permit use of sick days
for childbirth.
An estimated eighty-one percent of all persons under
age sixty-five are covered by insurance for hospital care
and 78.8 per cent for surgical services, according to sta-
tistics compiled by the Social Security Administration.®!
A study by the Health Insurance Institute of new policies
issued in the first quarter of 1970 indicated that about
sixty-one per cent of the employees covered had mater-
nity coverage — for employees and spouses of employees
— usually with a special maximum.®? Almost two-thirds
of all wage and salary workers are covered by some form
of protection against loss of income due to temporary dis-
ability, and 33.7 per cent of all wages lost for this reason
in 1969 were replaced, according to estimates by the So-
cial Security Administration.”
539 US. Dep’t of Labor, Bureau of Labor Statistics, Characteris-
tics of Agreements Covering 5,000 Workers or More, Bull. No. 1686
(1970).
60 iq at 48.
61 Mueller, Private Health Insurance in 1969: A Review, Social
Security Bulletin 3-4 (Feb. 1971).
62 Health Insurance Institute, New Group Health Insurance 10
(1971).
63 Price, Cash Benefits for Short-Term Sickness 1948-69, Social
Security Bulletin 19 (Jan. 1971).
1183
Since many of the plans protecting against loss of in-
come exclude childbirth, there is no reliable information
on the number of women employees covered. A 1969
study by the Society of Actuaries of temporary disabil-
ity insurance policies issued by eleven large insurance
companies showed that 9,700 of the policies issued had
some maternity benefit, whereas 10,700 did not. This
study did not include policies issued under state tempo-
rary disability insurance laws.“ In a digest of one hun-
dred health and insurance plans under collective bargain-
ing, compilec " © the Labor Department in early 1966,
all health insurance plans included some provision for ma-
ternity, but most had special limitations. Some pro-
vided total allowances as low as $75, $130, and $150
for maternity. The same study indicated that sixty
of the plans included some protection against loss of
income for childbirth, most frequently with a six week
limitation. All of the plans had protection against loss
of income for other disabilities.67 This study is not rep-
resentative, since it included only plans that were nego-
tiated by collective bargaining and included health and
insurance provisions. Some employers unilaterally and
some collective bargaining agreements require that women
resign or begin leave at some special period before antic-
ipated childbirth — most commonly at the end of the
64 Society of Actuaries, 1969 Reports of Mortality and Morbid-
ity Experience No. 2, at 168 (1970).
65 Us. Dep’t of Labor, Bureau of Labor Statistics, Digest of
100 Selected Health Insurance Plans Under Collective Bargaining,
Early 1966, Bull. No. 1502 (Sept. 1966).
66 7g at 12, 40, and 32.
67 14
1184
fourth or fifth month of pregnancy. For example, ac-
cording to a survey of the National Educational Associa-
tion in 1965, most school systems require that teachers
take leave beginning at the end of the fourth or fifth
month:®? sorre school systems require a teacher to remain
on leave for a full year following the birth of a child, and
some give her no reemployment rights at all.” In others,
she is reemployed only if there is a suitable vacancy.
The extent of this practice is hard to gauge. Some
rough idea of the extent of the practice in New Jersey is
available from data compiled by the New Jersey Depart-
ment of Labor and Industry.”! Because of its financing
arrangements, New Jersey has separate data on claims aris-
ing within fourteen days of leaving employment and claims
arising during employment. In 1970, 17.8 per cent of all
claims were claims arising during unemployment, whereas
over 71 per cent of all pregnancy claims arose during un-
employment.” The department explains the difference:
“Since the practice of many employers had been to lay
off the employee significantly earlier than four weeks prior
to expected birth, the bulk of payments for pregnancy
68 See Larkin, Policies Vary on Maternity Leave, Louisville
Courier-Journal, Jan. 4, 1971, Women’s News at 1, col. 1; Letter
from R.I. Dep’t of Employment Security to Citizens’ Advisory
Council on the Status of Women, supra note 35.
69 National Educ. Ass’n. Educational Research Service Circular
No. 3 (Mar. 1966) (out of print).
70 Ig
TIN, Dep’t of Labor & Indus., Div. of Planning & Research,
supra note 39.
72 NJ. Dep’t of Labor & Indus., Div. of Planning & Research,
supra note 39, at tables 23 & 30.
ee en ee ee
1185
were paid through the disability-during-unemployment pro-
gram.”73 This practice certainly results in unnecessary
expenditure of unemployment insurance funds, raises the
rates of many employers, and creates pressures to establish
the kinds of arbitrary disqualifications referred to above.
It is another example of how irrational factors determine
the treatment of women employees, even when economic
factors would dictate otherwise. The New Jersey data
also indicate that the average number of weeks compen-
sated for pregnancy claimants who have recently been in
the labor force is 6.9; for claimants who are unemployed,
the period is 7.4 weeks.”
VI. LABOR UNION POLICIES
Unions have generally advocated maternity leave, but
the extent to which contracts provide reemployment or
other benefits is still difficult to gauge. The AFL-CIO
resolutions adopted at its 1969 convention included sup-
port of “adequate maternity leave and benefit plans.”’”
Similarly, the United Auto Workers, in a 1970 conven-
tion, resolved that a nationwide system be developed to
insure that temporary disability plans include pregnancy
73 N.J. Dep’t of Labor & Indus., Div. of Planning & Research,
Two Decades of Temporary Disability Insurance in New Jersey 15
(Mar. 1970).
74 NJ. Dep’t of Labor & Indus., Div. of Planning & Research,
supra note 39, at table 33.
75 AFL-CIO, 8th Constitutional Convention, Resolution No. 236
(Oct. 1969).
1186
coverage.” United Auto Workers representatives have
stated that most of their contracts provide for six weeks
of temporary disability insurance coverage for pregnancy.”’
7© The UAW Resolution reads in pertinent part:
Maternity benefits, in the form of cash payments to
replace the lost wages of women workers, are a logical
part of a broader program of replacement of wages lost
because of short-term illness. . . . Most states have arbi-
trary time limits in regard to collecting unemployment
compensation before and after childbirth which do not
reflect the variation in physical ability of women work-
ers, their health, or the demands of the job. Federal stand-
ards,should be enacted permitting women to collect un-
employment compensation before and ajier childbirth
whenever they are physically able to work and to guar-
antee job protection for women who desire to return to
work after pregnancy... .
5. That a general system of basic statutory protection for
men and women against wage loss due to temporary disa-
bility, including illness, pregnancy and maternity, be pro-
vided in one insurance program.
6. That statutory regulations be enacted and in the mean-
time contract clauses be negotiated establishing job security
during maternity leave, with standards that encompass
reasonable tests for the ability and capacity of the individ-
ual to work, recognize the physical health of the woman
and the nature of her occupation, and which would not
deny either employment, or unemployment compensation,
when these standards are met.
22nd Constitutional Convention, 1970 UAW Resolutions, reprinted
in UAW Women’s Dep’t, Women in Society and the SOth Anniver-
sary of Woman’s Right to Vote 5-8 (1970) (emphasis added).
77 Interview with Dorothy Haener, International Representative,
UAW Women’s Dep't, in Washington, D.C., Oct. 8, 1971.
1187
A survey of Detroit employers conducted by the Detroit
News in May, 1971 indicated that American Motors Corpo-
ration, Ford Motor Company, and Chrysler Corporation (all
bargaining with the UAW) do not require employees to
leave or return at a specified time and that returning em-
ployees could “bump” employees with less seniority if
necessary to effect reemployment.”® The UAW has a
model maternity clause antedating 1946, which recom-
mends that contracts provide for a maximum of one
year’s leave of absence during which time the employee
would retain and accrue seniority. ”9
* * *
78 Detroit News, 16 Companies Report Their Maternity Leave
Policies, May 23, 1971.
79 UAW Women’s Dep’t, UAW Policy Established by Convention
Resolutions Relative to Women Workers’ Rights 21 (undated) (in-
cludes resolutions adopted at 1942-1968 conventions). The Ameri-
can Newspaper Guild Model Contract includes the following:
Art. V(a) Maternity leave of at least six months shall be
granted upon request, with pay for at least ? weeks. No
employee shall be required to take a leave of absence,
nor shall an employee’s job duties or working conditions
be altered without her consent, on account of pregnancy;
nor shall there be any penalty for pregnancy. An em-
ployee who at the end of maternity leave decides not to
return to work shall be paid the amount of severance pay
which would have been due less the amount of maternity
pay.
American Newspaper Guild, Equality Now! A Report to the 1970
ANG Conference on Sex Discrimination and Women’s Rights in the
Industry at CB8 (1970). However, seventy-nine of 114 contracts
surveyed in November 1970 either specified no compensation for
maternity leave or were silent on the subject. /d. at M2.
*- * *
1188
The International Union of Electrical, Radio, and Ma-
chine Workers has been attempting in the last few years
to extend the benefits attached to other temporary disa-
bilities to childbirth and to cut back arbitrary periods of
leave. The IUE has recently advised its locals of the
E.E.0.C. decision holding that exclusion of maternity
from temporary disability insurance coverage constitutes
a violation of Title VII and has instructed the locals to
instruct female employees going on maternity leave to
claim benefits even though the contract does not so pro-
vide. If benefits are not paid, the employees have been
instructed to file an appropriate grievance or protest and
failing satisfactory settlement, to file a charge with the
E.E.0.C.“ The current IUE contract with General Elec-
tric defines illness to “include pregnancy whenever the
foreman or other immediate supervisor is notified prior
to absence from work.”® The current contract with
Westinghouse provides for maternity leave without pay
but does include reemployment rights and does not con-
tain an enforced period of absence.™
83 Interview with Ruth Weyand, Counsel for IUE, in Washington,
DC., Oct. 8, 1971.
84 IUE, Keeping up with the law 117-18 (May-June 1971).
85 1970-73 G.E.-IUE National Agreement, art. VIII(1\e).
86 Agreement and Pension and Insurance Agreement between
Westinghouse Electric Corp. and IUE, AFL-CIO-C.L.C., XVII, Feb.
28, 1970.
1188-A
VII. RECOMMENDATIONS OF
FEDERAL WOMEN’S ADVISORY GROUPS
The recommendations of federal women’s advisory groups
have generally assumed that pregnancy is a temporary dis-
ability and should be treated as such. They have differed
on means of reaching this goal.
The Citizens’ Advisory Council on the Status of Women
is one of the first organizations to treat the subject in
depth and has addressed its recommendation to immediate
change within the present framework of fringe benefits in
the United States, rather than long-range solutions through
proposed federal legislation. The Council has also con-
sciously separated the concepts of childbearing and child
rearing.®”
The Chairman, Mrs. Jacqueline G. Gutwillig, stated in a
recent address that the Citizens’ Advisory Council views
childbirth as a temporary disability for that period during
which the woman is actually unable to work. The Council
87 Jacqueline Gutwillig clearly presents the Council position:
The subject of child rearing we felt was a separate
topic that required a separate treatment, as both men
and women have the responsibility to rear children.
Therefore rearing of children is not considered in our
paper on maternity benefits.
The Council’s policy relates only to the period of
time a woman is unable to work because of childbirth
or complications of pregnancy. I believe this is one
of the most important contributions of our considera-
tion of this issue, that is, the semantic separation of
leave for childbirth from leave for child rearing.
Gutwillig Address, supra note 1.
1189
recommends inclusion of maternity coverage in all group
health and temporary disability insurance plans.8® Coun-
cil Chairman Gutwillig also stated, however, that the Cit-
izens’ Advisory Council felt it was very important not to
88 Chairman Gutwillig stated:
We also found in our review of background materials
that absence due to childbirth is sometimes treated as a
temporary disability and sometimes as a special condition
warranting special arrangements.
The Council concluded that childbirth and complica-
tions of pregnancy are temporary disabilities for employ-
ment purposes because they have all the significant char-
acteristics of temporary disabilities — (1) loss of income
due to temporary inability to perform normal job duties,
and (2) medical expenses. Additionally, childbirth has
two other characteristics which are associated with only
the more severe temporary disabilities — hospitalization
and possible death.
The theory that pregnancy is a “normal physiological
condition” has been advanced as a reason for treating
pregnancy as a special condition warranting special ar-
rangements. I don’t know what “normal physiological
condition” means; the more one analyzes the words, the
more confusing they become, but I’m sure of one thing
— medical care, hospitalization, and death are not nor-
mally associated with this phrase. I also know as a fact
that the result of applying this concept has generally
been to deny women benefits to which they are justly
entitled.
Another reason that is advanced for denying women
the benefits provided for other temporary disabilities is
that pregnancy is “voluntary.” We all know this is a
weak rationalization. Pregnancy is very frequently not
voluntary, and besides temporary disability benefits are
(cont'd)
1190
provide benefits that would discourage employers from
hiring women of childbearing age.
We did not want to damage women’s opportuni-
ties for employment under the guise of protect-
ing them. Furthermore, the members felt that
the essence of equal opportunity was to treat
women and men as individuals, not as classes.®
* * *
IX. CHILD REARING LEAVE
So far this article has been generally limited to absences
related to childbirth — the frequent denial or restriction
of customary job benefits and arbitrary separations unre-
lated to a woman’s desires or ability to do the job. Be-
fore going on to means of correction, let us consider
briefly child rearing leave, which is a very new concept.!”7
(Footnote 88 cont'd)
provided for other equally voluntary conditions — such
as attempted suicide. Pregnancy is no more voluntary
than injuries from an automobile accident while driving
intoxicated and no more voluntary than the conditions
associated with long term smoking... .
In recent discussions about our recommendations, we
have been sked whether insurance companies will write
health insurance and temporary disability insurance poli-
cies covering maternity. The answer is categorically yes.
The national experts we have been in touch with have
never heard of an insurance company that would not.
The general rule is that insurance companies will write
any coverage the group wants.
107 Child rearing leave was discussed by the Women’s Caucus of
the American Sociological Association in September 1969. The Cau-
cus’s formal proposals recommended that American universities grant
parenthood leave. See American Sociologist, Feb. 1969.
Cankete
1191
While those school boards and employers who have re-
quired new mothers to take long leaves of absence follow-
ing childbirth with no right to reemployment may have
considered this “child rearing” leave, it is not a proper def-
inition of the term. Child rearing leave should be with
reemployment rights, optional with the employee, and
available to both mothers and fathers.
There are many reasons why a working mother or father
with a firm attachment to the labor force might wish or
be forced to take full-time care of an infant for a tempo
rary period. For example, a mother might want to nurse
the baby; or a parent might need to care for the infant
until other arrangements could be made; some young cou-
ples are planning to alternate periods at home for child
rearing; or the death of a mother might require the full
time presence of the father until child care arrangements
could be made.
Most employers provide for other types of unpaid leave
for no more important purposes, such as continuation of
education and personal emergencies. It would seem that
an employer who permits unpaid leaves of absence for
other purposes should be willing and able to include leave
of absence for child rearing.
X. THE FUTURE
Title VII of the Civil Rights Act of 1964,! state hu-
man relations laws, and the fourteenth amendment are
clearly weapons for attacking the exclusion of, or special
limitations on, pregnancy in public and private plans for
108 42 U.S.C. $2000e er seq. (1964).
1192
economic assistance to the temporarily disabled. It seems
certain that the courts, after full consideration, will adopt
the obvious conclusion that pregnancy is a temporary dis-
ability and that women are entitled to the same autonomy
and economic benefits in dealing with it that employees
have in dealing with other temporary disabilities.
* * *
The prompt removal of inequities in existing systems is
a high priority goal, as many low-income women workers
are suffering great hardship through unjust denial of eco-
nomic benefits and arbitrary restrictions on employment.
With the median earnings of white women working year-
round, full-time at a little over five thousand dollars per
year and black women at four thousand dollars per year,!™
it is clear that most women workers cannot afford any
unnecessary loss of wages or loss of coverage of medical
bills.
Groups concerned with human rights should make full
use of the courts and human relations agencies to chal-
lenge employers’ special requirements regarding length of
absence for childbirth, exclusion of childbirth from health
insurance and temporary disability insurance coverage, spe-
cial disqualifications for pregnancy in unemployment in-
surance laws, and the exclusion of pregnancy from state
temporary disability insurance laws.
* * *
109 U.S. Dep’t of Commerce, Bureau of the Census, Income in
1969 of Families and Persons in the United States, at table 50 (Cur-
rent Population Reports: Consumer Income P-60, No. 75, 1970).
See also Hearings on H.R. 16098 before the Special Subcomm. on
Education of the House Comm, on Education and Labor, 9\st Cong.,
2d Sess., pt. 2, at 1107-18 (1970).
jMiew
——, |
— ~~ -» ~
De bee ee Net a ew
Cots ene
1193
PLAINTIFFS’ EXHIBIT NO. 83B
Addendum for Childbirth and Child Rearing Leave:
Job-Related Benefits by Elizabeth Duncan Koontz.
N.Y. Law Forum, Vol. 17, No. 2, 1971.
Addendum for “Childbirth and Child Rearing Leave: Job-
Related Benefits” by Elizabeth Duncan Koontz, New York
Law Forum, Vol. 17, No. 2, 1971.
Page 486, first paragraph, add:
Because of New Jersey’s unusual funding arrangements, this
does not mean that pregnancy benefits amount to twelve
percent of the total costs of temporary disability insurance.
Forty-seven percent of covered employees are covered un-
der private insurance or employer self-insurance, which
meets State standards. The others are covered by the State
plan. However, all payments for temporary disability aris-
ing more than 14 days after the employee is laid off come
out of the State Disability-During-Unemployment Fund.
Seventy-one percent of all pregnancy claims are paid out
of this fund (primarily because of the employer’s practice
in laying women off significantly earlier than four weeks
prior to expected birth). There are no data available on
total payments from private plans for maternity so it is
not possible to get an accurate figure on maternity costs
for New Jersey’s system. It is reasonable to assume that
approximately 47 percent of all the payments from the
Disability-During-Unemployment Fund and approximately
47 percent of the maternity cases are for employees cov-
ered under private plans. With this assumption 8.5 per-
cent of the costs of State plans are for maternity.
* * *
1194
PLAINTIFFS’ EXHIBIT NO. 84
Donna Allen, Fringe Benetfirs, Wages or
Social Obligation? Rev. Ed. Corel] Univ. 1969.
FRINGE BENEFITS:
Wages or Social Obligation?
An Analysis with Historical
Perspectives from Paid Vacations
By DONNA ALLEN
Formerly Extension Teacher
New York State School of Industrial
and Labor Relaions
REVISED EDITION '
CORNELL UNIVERSITY
Ithaca, New York
1969
ee ee
= ee
1195
Introduction
THIS is the second edition of a book on the conceptual nature of
fringe benefits. Except in two significant respects, iittle has changed
since the book first appeared in 1964.
Unchanged is the character of the fringe benefit movement—essen-
ually management. Despite the unions’ long postwar effort to challenge
management's hegemony, the fmnge benefit movement developed
along the lines management wanted. 3
Unchanged, too, is the controversy over whether fringe benefits are
wage payments for an employee's actual work or a non-wage obdiization
to cover certain off-the-job social costs of the employee. This controversy
is the negotiating parties’ public battleground for contro! of the fringe
benefit money. The emplover wants qualifying provisions that will
protect his financial return in providing the benefit; the employee
seeks as clear a title to the fringe benefit money as he would have had
if the money had gone into a wage increase, which he (mistakenly)
believes it could have done.
zs s #8
The two significant changes since 1964 are: first, the unions have
lost and given up their attempt to controt the fringe benefit monev;
second, a new political reaction to the very success of the fringe benefit
movement as a substitute for social legisiation may be buiiding up.
There are signs of possible trouble ahead from the very poor, on the
one hand, and from the very rich—a handful of banks—on the other
(Chapter 10).
In giving up the fight for control of the fringe benefit money, the
employees are returning to their histcricai attitude towara employee
benefit programs designed to increase proauctivity. Althouch to man-
agement these programs undoubtedly were weli worth their cost, just
as they are today, employees and their unions have always oreterred
wages and, from the carliest days, have met employer weitare pro-
grams with monumental disinterest (Chapters 3 and 4).
During World War II, when wage increases were “cut tor the dura-
tion,” employees took the only thing thev could get under covernment
rules: fringes benefits—as the War Labcr toard called them. More in-
BEST GOPY AVAILABLE
1196
terested in ihe reality of “something for ‘x: workers” :n2n .a theories,
the union representatives on the tripart::+ war Labor Board cid not
object when emprover and public memoess avreed to bse the govern-
ment’s wartime policy on the emoiover’s vroductivity-incre.e rationale
—as iong as tiat theory jyustined more, and more wderai, Cenencs
(Chapter 5). Aiter ail, in their past exserience, ‘hus had always been
the purpose o: empiovee benents.
Before the war was over. however, employees did begin 12 show an
interest in fringe benefits and theories (Chapter 6). The fringe benents
represented a large and a growing part of their coliective bargains, and,
having given up sizable wage increases for them, the unions protested
when at employment termination 1 worker lost the benefits he had not
yet taken. It was here and on the issue of paid vacations that the falla-
cious wage concept was born—to be spread not many years later to all
fringe benefits. The battle for control of the fringe benefits, begun
then, continued throughout the postwar period. '
Immediately after the war, when ireed from wartime wage restraints
in 1946, the unions concentrated on a large wage increase at the bar-
gaining table and sought their social gains in Congress. But this return
to labor's traditional position was short-lived. Both their “inflationary”
wage demands and their politicai action came under attack, and, by
the second round of postwar negotiations, the unions were accepting
“package” settlements that combined fringe benefits and a more modest
wage rate increase. In securing themseives from attack, however, the
unions had yielded the political power they needed to back up their
economic power. Without the possibility of an alternative in legislated
social gains, the unions had no choice but to succumb to the blandish-
ments of employers who annuaily found certain fringe benefits far pref-
erable to adding that same amount to wage rates.
*. s 8
Management still had its traditional reasons for pushing the em-
ployee benefit programs. The 1950's and 1960’s were an echo of the
1920's as management described the miracles that social benefits could
accomplish in making the work force more productive—provided, of
course, that the emoioyer kept hrm control over the fringe benefit
money and the conditions for eligibility to the benefit.
Another advantage to the emplover of granting tringe benefits over
wages arose [rom the postwar tax policies which led the way especially
to the fringe benefits provided throuyh trust funds. So generous were
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1197
the tax regulations (at a Treasury-estimated revenue joss of up to
$3 billion a year) that if employers had not had their other sound rea-
sons for staying close to the fringes, the tax advantage alone would have
created a fringe benefit movement.
In addition, there was a new postwar advantage in fringe benefits
over wages: empioyees whose social needs were met privateiy did not
have to seek social gains through legislation. What emoiovers saved
in taxes to support such legisiation could provide larger penents wnen
spread over only one's own emovioyees, a fact that the emoiocyees and
their unions also appreciated.
—~ CHAPTER 1 +
The Problem: Are Fringe
Benefits Wages? _
Many of the social benefits which unions and liberal groups have
failed to win in the form of legislation have been quietly but con-
tinually adopted privately by unions and employers is? collective
bargaining agreements. And employers, in the absence of unions, have
been adopting many of these benefits voluntarily. For example, despite
the failure of state unemployment insurance laws to come ciose to
benefit standards proposed by both the Eisenhower and Kennedy-
Johnson Administrations, this income gap has been closed for over
two million workers by private supplementary unemployment benefit
plans. Private pension pians to supplement Social Security benefits now
cover an estimated twenty-six million workers. And, whereas Congress
rejected national health insurance, private health and weifare plans
now cover over a hundred million workers and their dependents.
* * *
In the last two decades, the fringe benefit movement has quietly
transformed our concepts of the employer-employee relationship by its
imposition of new, social obligations upon those who hire the service
of others. But if this is a social revolution privately imposing 2 new
kind of obligation upon employers, it is the best-kept secret of modern
times. Both parties and all third parties take turns seeing who can deny
it with the most convincing argument.
1198
The Confusion
Had this movement for fringe benefits been taking place through
legislation, there would be littie question of its social nature. But
these benefits-nave come to workers as income trom private empioyers.
What, then, is the nature of this income? Is it part ot the pay for their
service? Is it wages? Or is it something to be called “non-waces"?
Those who use the term, non-wages, imply that there is a aistinction
between various forms of empioyee income payments. But when one
looks for a basis for making sucn a aisunction, ne finds that no one is
sure what either wages or non-wages is. Not the worker nor his em-
ployer, nor the economist, nor even the government agencies and other
third parties who make decisions based upon tne nature of this income
can provide a consistent and unwavering distinction.
If you ask the worker himself what his non-wage benefits are,
he will respond by enumeratirg various fringe benefits he receives at
his work pace. But then if vou ask him what his weekiy wages are, he
will give you a figure whicn includes payments stemming trom many of
the non-wage benefits, such as pay fcr a holiday that fell during the
week.
If you ask the economist, you find the same type of confusion.
Although much has been written aoout wages and their funcuon in
the economy, there is very little :m tne literature about non-wag-
benefits and what these payments represent. The economust tends to
lump al! payments to labor together as wages. some economists do
speak of the growth of non-wage payments in reporting on various
wage studies; but, after this use of the expression, they proceed to
compare average weekly “wages,” which inciude many tringe payments
such as holiday and vacation pay, call-in pay, premiums of one kind
or another. What does “non-wage” mean to them?
Sometimes wages reters co tne employer's labor cost, at other
times to the employee's income, though the two are not the same
figure since the employer counts as labor costs certain items that are
not income to the employee. it is not uncommon to find the labor
economist using the word, wages, in one and the same study to mean
labor cost, employee income, basic wage rates per h
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