Appendix — General Elec. Co. v. Gilbert

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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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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

re Se ee ee a eee Pe

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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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