Petition — Liberty Mutual Insurance v. Wetzel
Supreme Court brief1976
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IN THE
Supreme Court of the Gnited
OCTOBER TERM, 1976.
No. 76- 76-510
MICHAEL RODAK, JR. corny
LIBERTY MUTUAL INSURANCE COMPANY,
A CORPORATION,
Petitioner,
vs.
SANDRA WETZEL, ann MARI ROSS, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Respondents.
PETITION FOR WRIT OF CERTIORARI BEFORE
JUDGMENT TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT.
KALVIN M. GROVE,
JEFFREY S. GOLDMAN,
LEDERER, Fox AND GROVE,
Sears Tower—Suite 7916,
233 South Wacker Drive,
Chicago, Illinois 60606,
RoBERT A. PENNEY,
175 Berkeley Street,
Boston, Massachusetts 02226,
CLEM R. KYLE,
717 Liberty Avenue,
Pittsburgh, Pennsylvania 15222,
Attorneys for Liberty Mutual
Insurance Company.
Gunthorp-Warren Printing Company, Chicago e Financial 6-6565
Yovme J
‘ S4kG F.
PAGE
GY TEEN, So ne ecendesseeeenensonstebecesas 2
Jurisdiction .......... Sdik chk duals basset ties 2
DD TINS kbc ok. o'n'nS 6s eh eaewdde Vedas) be kee 3
Questions Presented ............ beste eee eee 3
Mentomment of the Cees siii i ccc cd ccccdictccscdccecé 3
Reasons for Granting the Writ ............0.eee0000: 7
I. The Questions Presented Herein Are Integrally
Intertwined with the Question Now Pending
Before the Court in General Electric and Should
Be Decided in Conjunction with That Case . 7
Ii. The Instant Case Will Provide This Court with
the Necessary Vehicle to Provide Meaningful
Guidance on the Implementation of Title VII for
the Federal Judiciary and Employers ........ 8
Ill. Liberty Mutual Presents a Separate but Equally
Important Remedial Issue That Should Be Re-
solved with the Threshold Liability Question.. 10
Conceited oc siccccscceses eevee Cups sedeceuness 11
Appendix A—District Court Order of pana 24, 1976.. Al
Appendix B—Opinion of the United States Court of Ap-
peals for the Third Circuit Filed February
SEs OD ccdecosescebesteuctadsnees A3
Appendix C—District Court Opinion Filed January 9,
POPE Cisecsidesécctecesddesetacetas A21
Appendix D—District Court Memorandum Order Filed
Peboweny BA IPS oo ccc vccbeeisceccse ASO
Appendix E—Judgment Order of the United States Court
of Appeals for the Third Circuit Filed April
a ee ee A53
Appendix F—Notice of Appeal Filed August 30, 1976... A55
TABLE OF AUTHORITIES.
Cases Cited.
Gilbert v. General Electric Company, 519 F. 2d 661 (4th
- Cir. 1975) cert. granted Nos. 74-1589 and 74-1590...
Graham & Foster v. Goodcell, 282 U. S. 409 (1931) ...
Griggs v. Duke Power Co., 401.U. S. 424 (1971) ......
‘Hannah v. Larche, 363 U. S. 420 (1960) ............
Hannah vy. Slawson, 361 U, S, 910 (1960) ............ ;
Johnson v. U. S. Shipping Board, 280 U. S. 320 (1930)..
McCulloch v. Sociedad Nacional, 372 U. S. 10 (1963)..
McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973)
McElroy v. Guagliardo, 361 U. S. 281 (1960) ........
Porter v. Dickens, 328 U. S. 252 (1946) .......... s
aks o. Gee: Bie as Os OC CUED bcc ceccstcocdscocs
Taylor v. McElroy, 358 U. S. 918 (1959) ............
_ United States v. Thomas, 361 U. S. 951 (1960) ........
White v. Mechanics’ Securities Corp., 269 U. S. 283
ERD cates ncceudssesdbueseckcuseosedsintens
Miscellaneous Sources.
Department of Defense, Directorate of Manpower and --
. Reserve Affairs, Selected Manpower Statistics, Tables
> Se ls GPUEED 6. ones eens seek bdbn ce eeees
National Clearinghouse for Alcohol Information, Second
Report to Congress (1974), p. 1... ccc eecsccsces
National Clearinghouse for Mental Health Information,
Primary Diagnosis of Discharges from General Hospital
Psychiatric Inpatient Units (1973), Stat. Notes Nos. 68, ©
Ff rer eee on ee
U. S. Bureau of Census, Statistical Abstract of the U. S.
1974 (95th ed, 1974), p. 150 ............ fo seeese
5"? id a
~ INTHE "-
Supreme € Court of the United States
OcTOBER TERM, 1976
No.76-
LIBERTY MUTUAL INSURANCE COMPANY,
A CORPORATION,
Petitioner,
vs.
SANDRA WETZEL, anp MARI ROSS, ON BEHALF OF
THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
Respondents.
PETITION FOR WRIT OF CERTIORARI BEFORE
JUDGMENT TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT.
-__——
Pursuant to Rule 20 of the Rules of this Court, Liberty
Mutual Insurance Company (“Liberty” or “the Company”)
prays that a writ of certiorari issue before the judgment of the
Court of Appeals for the Third Circuit to review a case pending
in the latter court following a decision by the United States
District Court for the Western District of Pennsylvania.
The instant case was originally remanded by this Court on
March 23, 1976, to the Court of Appeals for the Third Circuit
with instructions to dismiss the appeal. ...... U. 8. WW. , 96
S. Ct. 1202. In accord with this Court’s mandate the Court
of Appeals dismissed Liberty's appeal on April 30, 1976, for
2
“want of an appealable order.” App. E, infra, pp. AS3-A54. On
August 24, 1976, the United States District Court for the
Western District of Pennsylvania corrected the jurisdictional
defect that had existed and issued a prospective injunctive order
running against Liberty. An appeal to the Third Circuit from
the District Court’s order was then docketed on September
21, 1976. Liberty Mutual Insurance Company v. Sandra
Wetzel and Mari Ross et al., No. 76-2240.
OPINIONS BELOW.
The order of the District Court for the Western District of
Pennsylvania, from which the appeal pending in the Court
of Appeals is taken (App. A, infra, pp. Al-A2), is not officially
reported. The previous opinion of this Court in the instant
case is reported at 96 S. Ct. 1202 (1976). The original opinion
of the Court of Appeals for the Third Circuit (App. B, infra,
pp. A3-A20) is reported at 511 F. 2d 199 (1975). The original
opinion of the District Court (App. C, infra, pp. A21-A49) is
reported at 372 F. Supp. 1146 (1974), and its memorandum
order (App. D, infra, pp. A50-A52) denying the motion for re-
consideration filed by Liberty is reported at 372 F. Supp. 1163
(1974).
JURISDICTION.
The judgment of the District Court (App. A, infra, pp. Al-A2)
was entered on August 24, 1976. On August 30, 1976, Liberty
filed a Notice of Appeal (App. F, infra, p. A55) and on
September 21, 1976, the certified record from the District
Court was filed in the Court of Appeals for the Third Circuit.
The Court of Appeals has not acted on Liberty’s appeal. Juris-
diction in this matter is conferred by and invoked under 28
U. S. C. 1254(1) and 28 U. S. C. 2101(e) which provide
for review by this court of cases in the courts of appeals by
writ of certiorari upon the petition of any party before or
after the rendition of judgment.
STATUTE INVOLVED.
Section 703(a)(1) of Title VII of the Civil Rights Act of
1964, as amended, 42 U. S. C. § 2000e-2(a) (hereafter “Title
VII” or “th. Act”), in pertinent part provides:
It shall be an unlawful employment practice for an em-
ployer . . . to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
QUESTIONS PRESENTED.
1. Whether an employer's disability income protection insur-
ance policy which excludes disabilities due to pregnancy in
addifion to other disabilities, while providing for equal risk
coverage, benefits and contributions on behalf of all employees,
constitutes prohibited sex discrimination under the Act.
2. Whether, assuming that an employer’s insurance policy
is found to violate the Act, a district court may restrict the em-
ployer in the manner in which the employer restructures the
coverages of that policy to comport with the Act.
3. Whether, where a district court issues a decision limited
to liability issues and two years elapse between the liability
decision and the hearing on a motion for prospective injunctive
relief, a defendant has a right to adduce evidence with regard
to the current practices followed before the district court resolves
the motion.
STATEMENT OF THE CASE.
Liberty is a casualty insurance company which maintains
offices throughout the country. The Company provides for its
employees a contributory’ group disability income protection
1. Each employee pays thirty-three (33) cents for each one
hundred dollars of salary, or approximately one-third of one percent
of his or her income. This employee contribution is one-third of the
cost of the policy; the Company pays the balance.
4
insurance policy. The policy provides benefits to an employee?
who is absent from work for eight calendar days due to a
covesed illness or accident which requires the treatment of a
physician. The benefits consist of two-thirds of the emiployee’s
salary to a maximum of $150.00 per week for 103 weeks if the
employee has less than five years service, or to a maximum
of $270.00 per week for a period up to age 65 for an employee
with over five years of service.®
There are significant limitations, however, on the payment
of the benefits: the various definitional restrictions as to who
is an employee; the initial waiting period and the maxin.um
amount and period of payment as indicated above; the require-
ment that during the first year of disability the employee must be
unable to perform all of the duties of his or her occupation, and
thereafter be unable to perform the duties of any occupation;
the provision that any other remuneration or other statutory
or plan benefit that may be received by the employee reduces
the benefit provided under the Liberty plan; the modification
of the plan in those States with statutory disability benefit laws*
to meet statutory requirements; the limitation that the disability
must be the result of “accidental bodily injury or sickness,”
which excludes a variety of disabilities such as elective surgery
2. To qualify, an employee must be a full time employee who
has continuously worked for Liberty for at least three months.
3. The Company also provides a ciyey BR. —— Soe benefit
plan which, in covered cases, pays one-half the
the employee’s full | and oie benefits for a number aoa weeks
equal to the numbe years the employee has worked for the
Company.
4. California (Cal. Unemp. Ins. Code § 2601, et seq.); Hawaii
(Hawaii Temporary Disability Insurance Law, 4 Hawaii Rev.
Title 21, Chapter 392; New Jersey Bg ee ow
Law, N. J. Stat. Ann. § 42:21-25); Rhode I (Rhode inlan island
Temporary Disability Insurance Act, General Laws R. I. § 28-39-1;
and New York (Workmen’s Compensation Law, Art. IX, §§ 200-
242). In these states, coverage commences on the first day of
employment at the statutory benefit level. After the po. ee
becomes eligible for the Liberty plan (see n. 2, supra), the plan
picks up the difference between statutory and plan coverage.
5
like a hair transplant; and the plan’s specified exclusions. The
exclusions deny benefits for any period of disability caused by
any act of declared or undeclared war, attempted suicide or
intentionally self-inflicted injury, any disability which “does
not require through its continuance the regular attendance” of a
licensed physician, and “any portion of a period of disability
due to mental or emotional disorder, alcoholism, or drug addic-
tion unless the employee is engaged in a corrective program
under the guidance of a licensed physician.” In addition, the
plan also provides that benefits are not payable “for disability
due to pregnancy or any cause related to pregnancy.”
In 1972, at a time when the Equal Employment Opportunity
Commission’s guidelines permitted the exclusion of pregnancy-
related disabilities from an employee disability benefit plan. Wet-
zel and Ross, two Liberty technical claims department employees
in Pittsburgh, Pennsylvania, filed charges with the Commission
accusing the Company of engaging in sex discrimination pro-
scribed by the Act. Upon subsequent issuance of a right to sue
letter, they commenced an action in the District Court, alleging,
insofar as is relevant here,® that Liberty discriminated against
all of its female employees by excluding the risk of pregnancy
from the coverage of the income protection plan. On January
9, 1974, that Court granted Wetzel and Ross’ motion for partial
summary judgment on the issue of liability and issued an inter-
locutory order finding, inter alia, that Liberty violated the Act
Liberty appealed to the Third Circuit.
5. The litigation below involved a number of liability iss
not now before this Court. Some have been separately
6
_ .On February 11, 1975, the Third Circuit affirmed. It held,
first, that this Court’s decision in Geduldig v. Aiello, 417 U. S.
484 (1974), was “not dispositive” because that case involved
the Equal Protection Clause rather than an action arising under
the Act; second, that the Commission’s current guideline (29
C. F. R. § 1604.10), which states that pregnancy benefits should
be applied on the same basis as “other temporary disabilities,”
were entitled to “deference”; third, that because Liberty’s plan
“covers so many disabilities but excludes pregnancy . . . [ilt
cannot stand”; and, finally, that although the plan “is neutral on
its face . . . [it] treats a protected class in a disparate manner .. .
[contrary to] Griggs v. Duke Power Co., 401 U. S. 424.” App.
B, infra, p. A1l6. Because it believed that these conclusions were
without merit, Liberty petitioned this Court.
On May 27, 1975, this Court granted Liberty’s petition for
a writ of certiorari in Liberty Mutual Insurance Company Vv.
Wetzel et al., No. 74-1245, 421 U. S. 987 (1975) (hereafter
“Liberty Mutual”). Thereafter on October 6, 1975, this Court
granted the Joint Petition for Writ of Certiorari in General
Electric Company v. Gilbert et al., and Gilbert et al. v. General
Electric Company, Nos. 74-1589 and 1590, _.. U. S.
(hereafter “General Electric”). Oral arguments in Liberty
Mutual and General Electric were then held in tandem by this
Court. On March 23, 1976, this Court issued a decision in
Liberty Mutual concluding “that the District Court's order was
not appealable to the Court of Appeals . . .” and vacated the
judgment of the Court of Appeals with instructions to dismiss
Liberty’s appeal. Accordingly, on April 30, 1976, the Third
Circuit dismissed Liberty’s appeal for “want of an appealable
order.” Subsequently, the Liberty Mutual Plaintiffs moved the
District Court to issue a prospective injunction, and in its
response, Liberty, inter alia, moved the District Court for leave
to introduce evidence regarding the disability insurance practices
followed by Liberty during the prior two years since the original
hearing on the issue of liability. On August 24, 1976, the District
7
Court: (1) denied Liberty's motion; (2) enjoined broadly the
use of “any” income protection plan by Liberty which does not
provide coverage for pregnancy-related disabilities; and (3)
enjoined Liberty from “reducing any coverage or benefits” which
were available to males “at the time summary judgment was
granted” on January 9, 1974. Liberty filed a Notice of Appeal
from all three aspects of the District Court’s order on August 30,
1976.
During the interim period, while Liberty Mutual was before
the lower courts pursuant to this Court’s order, General Electric
was placed on this Court’s October, 1976 term calendar for re-
argument. Liberty submits that General Electric and Liberty
Mutual should be resolved together by this Court because: (1)
both cases present “the same [threshold] question;”* (2) Liberty
Mutual presents certain factual variations which, if considered
in conjunction with General Electric, would provide a superior
vehicle with which to clarify the law; and (3) Liberty Mutual
also presents a remedial question intertwined with the liability
issues presented in General Electric that will reoccur in every
case where an insurance program is found to violate Title VII.
REASONS FOR GRANTING THE WRIT.
I. The Questions Presented Herein Are Integrally Intertwined
with the Question Now Pending Before the Court in
General Electric and Should Be Decided in Conjunction
with That Case.
The grant of a writ of certiorari before judgment is admittedly
limited, 7s stated in Rule 20 of this Court, to exceptional cir-
cumstances. One such special situation is where “there is a close
relationship of [an] important question raised to”’ one that
6. Joint Petition of all Parties for a Writ of Certiorari in Case
Nos. 74-1589, 74-1590.
7. Porter v. Dickens, 328 U. S. 252, 254 (1946).
is already pending before the Court.* Here the fact that this
Court previously accepted the instant case and heard oral argu-
ment in tandem with General Electric evidences a unique as
well as “close relationship” between the two cases. The decision
by the Fourth Circuit in General Electric even relied, in part,
on the earlier decision of the Third Circuit in Liberty Mutual.
Indeed, the utilization of a certiorari before judgment pro-
cedure is especially desirable where, as here, it can be antici-
pated, due to an earlier decision of a court of appeals, that
the related matter will, in all probability, be disposed of in the
same manner. Cf. Taylor v. McElroy, 358 U. S. 918, 360
U. S. 709, 710 (1959).
II. The Instant Case Will Provide This Court with the Neces-
sary Vehicle to Provide Meaningful Guidance on the Im-
plementation of Title VII for the Federal Judiciary and
Employers.
The federal judiciary and employers, both private and public,
throughout the nation require a broad test against which the
multitude of existing insurance programs can be evaluated under
Title VII. In previous decisions this Court provided such
benchmarks, including guidance in the allocation of the bur-
dens of proof, in actions challenging hiring and testing policies
of employers. See McDonnell Douglas Corp. v. Green, 411
U. S. 792 (1973), and Griggs v. Duke Power Co., 401 U. S.
424 (1971). General Electric standing alone, however, does
not present this Court with a factual context of sufficient
8. See, e.g., Hannah v. Slawson, 361 U. S. 910 (1960); United
States v. Thomas, 361 U. S. 950 (1960); McCulloch v. Sociedad
Nacioanl, 372 U. S. 10, 12 (1963); Hannah v. Larche, 363 U. S.
420, 422, n. 3 (1960); McElroy v. Guagliardo, 361 U. S. 281, 283
(1960); Reid v. Covert, 354 U.S. 1, 5 (1957); White v. Mechanics’
Securities Corp., 269 U. S. 283, 299 (1925); Johnson v. United
States Shipping Board, 280 U. S. 320, 324-325 (1930); and Graham
& Foster v. Goodcell, 282 U. S. 409, 411-412, 415, n. 2 (1931).
9
breadth to resolve the critical, commonplace issues.® First, the
insurance program in General Electric is virtually comprehensive,
covering “ ‘all disability, including cosmetic surgery [hair trans-
plant], disabilities arising from attempted suicides, etc.’ except
those occurring during childbirth.”*° By contrast, in Liberty
Mutual, the disability income policy, like the policies offered by
most employers, is not so comprehensive, does not cover either
cosmetic surgery or attempted suicides, is limited to disabilities
which affect the insureds’ capacity to work, and, most import-
antly, contains exclusions, which, even if less common than
pregnancy, predominantly affect males.‘* Second, General
Electric does not necessarily pay equal premiums on behalf of
each individual employee because General Electric is self-
insured, Most employers, however, as in Liberty Mutual, actu-
9. Admittedly there are numerous material similarities between
General Electric and Liberty Mutual. Both insurance programs, for
example, cover numerous disabilities which are limited exclusively
to females, ¢.g., hysterectomies, or to males, ¢.g., vasectomies, as
well as a vast majority which affect both males and females in
v proportions. In addition both provide for an
pony Be formula for both male and female employees.
10. See Gilbert v. General Electric Company, 519 F. 2d 661,
665 (4th Cir. 1975).
11. For example, the exclusion of disabilities due to an act
of war affects virtually only males; males in active military service
outnumber females by in excess of 20 to 1 with the percentage in
combat se 7 ieee far greater. Department of Defense,
Directorate of r and Reserve Affairs, Selected Manpower
Statistics, Tables P. 6.0 and P. 25.6 (1975). The exclusions of
attempted suicides and self-inflicted injuries also predominantly
affect tales. In 1972 (the most recent year in which statistics are
available), there were over twice as many male suicides as females.
U. S. Bureau of Census, Statistical Abstract of the U. S.: 1974
(95th ed. 1974), p. 150. Simil there are, at least, two male
alcoholics for each female ic. National Clearinghouse for
Alcohol Information, Second Report to Congress, p. 1 (1974);
see also National Clearin ouse for Mental Health Information,
Diagnosis of arges from General Hospital Psychiatric
Inpatient Units,” Stat. Notes No. 68, 76 and 81 (1973). Hence
the effect of the plan’s exclusion of disabilities due to alcoholism
would be concentrated upon males. ‘
10
ally pay an identical insurance premium to an insurance carrier
for each employeee without regard to gender.’”
In the circumstances of Liberty Mutual there is, accordingly,
no probative value, as there may be in General Electric, in com-
paring the treatment of pregnancy-caused disabilities to the treat-
ment of other disabilities because, unlike General Electric, other
disabilities are excluded from, as well as included in, Liberty’s
disability coverage. Pregnancy is not singled out for unique or
special treatment; it is only one of several exclusions and limita-
tions in the insurance policy. In such a situation it is necessary to
evaluate the overall equity of the entire disability income policy
(é.g., are premiums paid on behalf of each employee, are equal
economic benefits in terms of coverage available to all employees,
or is the program skewed to divert coverage-dollars to or from
either gender). The challenge facing this Court is to construct an
appropriate analytical framework that can be applied not only
to the unique General Electric case but to the common situa-
tion. The resolution of both General Electric and Liberty
Mutual together would provide the necessary factual context in
which such a framework can be constructed.
Ill. Liberty Mutual Presents a Separate but Equally Important
Remedial Issue That Should Be Resolved with the Thresh-
old Liability Quesiion.
Assuming arguendo that an employer’s insurance program is
found to violate Title VII, the question which then neces-
sarily arises is how may the employer permissibly alter the
invalid insurance program to comply with Title VII. There
exist, of course, several possibilities. The coverage of preg-
nancy-related disabilities can simply be added and the additional
cost paid by the employer, by the employees, or by both in part.
The entire disability plan can be simply discontinued and wages
raised to enable employees to purchase their own insurance.
12. In Liberty Mutual, the premium is one percent of the
employee’s salary without regard to the employee’s gender.
11
Finally, the program can be modified to increase coverage for
pregnancy-caused disabilities and decrease coverage in some
other area so that the cost of the policy is not increased for
either the employees or the employer.
The District Court, however, has eliminated all alternatives,
but one: to add coverage for pregnancy-related disabilities with-
out regard to the additional cost incurred by the employees or
the employer. Liberty strongly urges that such an arbitrary
restriction is wrong and likely to be rejected by other federal
courts. In light of the immediate ripeness of this remedy question,
should the Court adversely resolve the basic liability issue,
Liberty Mutual offers this Court the opportunity to clarify the
law in this area promptly rather than permit confusion and
conflicts to develop.
CONCLUSION.
For the foregoing reasons, Liberty respectfully urges that
the instant petition for writ of certiorari be granted.
Respectfully submitted,
KALVIN M. GROVE,
JEFFREY S. GOLDMAN,
LEDERER, Fox AND GROVE,
Sears Tower—Suite 7916,
233 South Wacker Drive,
Chicago, Illinois 60606,
RoBerT A. PENNEY,
175 Berkeley Street,
Boston, Massachusetts 02226,
CLEM R. KYLE,
717 Liberty Avenue,
Pittsburgh, Pennsylvania 15222,
_ Attorneys for Liberty Mutual
Insurance Company.
Al
APPENDIX A
IN THE UNITED STATES DisTRICT COURT
For the Western District of Pennsylvania
SANDRA WETZEL and Mari Ross, on )
behalf of themselves and all other
persons similarly situated,
Plaintiffs,
si eo | Civil Action
No. 72-169
LIBERTY MUTUAL INSURANCE
COMPANY, a corporation,
Defendant. J
ORDER
Now this 24th day of August, 1976, partial summary judg-
ment, interlocutory in character, having been entered by Order
of January 9, 1974, it is ordered, adjudged and decreed, in
furtherance of this Court’s judgment, as follows:
1. The Defendant is hereby enjoined from further pursu-
ing, using or implementing its existing or any other income pro-
tection or benefit plan which treats pregnancy-related disabili-
ties differently from other disabilities and which does not pro-
vide coverage or benefits for pregnancy-related disabilities.
2. The Defendant is hereby enjoined from avoiding the
effects of this Order, directly or indirectly, by pursuing, utiliz-
ing or implementing any plan which in any way equalizes cover-
ages or benefits available to males and females by reducing any
coverages or benefits which are or have been available to male
employees under the terms of the employment practices or
policies which existed at the time summary judgment was
granted.
A2
3. The Defendant is hereby directed to implement and sub-
mit to the Court and Plaintiffs’ counsel within thirty (30)
days following the date of this Order, a written income protec-
tion plan with provisions no less favorable than those which
were in existence and were declared violative of Title VII by
this Court’s January 9, 1974 Order, but under which coverage
for pregnancy-related disabilities is provided on the same terms
as coverage for other disabilities.
This Order shall become effective thirty (30) days from the
date of entry thereof.
The motion of defendant to supplement the record is denied.
/s/ GERALD J. WEBER,
Gerald J. Weber,
United States District Judge.
Entered at Pittsburgh, Pennsylvania, this 24th day of August,
1976, at 11:50 A. M.
A3
APPENDIX B
UNITED STATES COURT OF APPEALS
for the Third Circuit
No. 74-1233
SANDRA WETZEL and Maki Ross, on behalf of themselves and
all others similarly situated,
Equal Opportunity Commission as Amicus Curiae,
vs.
LIBERTY MUTUAL INSURANCE COMPANY, a corporation,
Appellant.
(D. C. Civil Action No. 72-169)
On Appeal from the United States District Court
for the Western District of Pennsylvania
Present: STALEY, HASTIE and ALDISERT, Circuit Judges
JUDGMENT
This cause came on to be heard on the record from the United
States District Court for the Western District of Pennsylvania
and was argued by counsel.
On consideration whereof, it is now here ordered and ad-
judged by this Court that the judgment of the said District
Court, filed February 20, 1974, be, and the same is hereby
affirmed. Costs taxed against appellant.
Attest:
/s/ T. F. Quinn,
Clerk
February 11, 1975
A4
UNITED STATES COURT OF APPEALS
for the Third Circuit
No. 74-1233
SANDRA WETZEL and MARI Ross, on behalf of themselves and
all others similarly situated,
vs.
LIBERTY MUTUAL INSURANCE COMPANY,
a Corporation,
_ Appellant.
On Appeal from the United States District Court
for the Western District of Pennsylvania
Argued October 30, 1974
Before STALEY, HASTIE and ALDISERT, Circuit Judges.
KALVIN M. GROVE,
SiEVEN R. SEMLER,
LEDERER, FOX AND GROVE,
Sears Tower—Suite 7916,
233 South Wacker Drive,
Chicago, Illinois 60606.
ROBERT A. PENNEY,
175 Street,
Boston, Massachusetts 02226.
CLEM R. KYLE,
717 Liberty Avenue,
Pittsburgh, Pennsylvania 15222,
Attorneys for Appellant.
HOWARD A. SPECTER,
Building,
Pittsburgh, Pennsylvania 15219.
— a 15219.
| Attorneys for Appellees.
JOHN G. WAYMAN,
747 Union Trust
A. CAREY, General Counsel,
506,
e Amicus Curiae Equal
ape Opportunity Commis-
A6
OPINION OF THE COURT.
(Filed February 11, 1975)
By STALEY, Circuit Judge.
This appeal presents this court with significant questions of
first impression. We are asked to determine whether Title VII
of the Civil Rights Act of 1964, 42 U.S. C. § 2000e, et seq.,’ is
violated by a private employer who maintains employment poli-
cies that excluded pregnancy benefits from the company’s income
protection plan and that require female employees to return to
work within three months after childbirth or face termination.
Appellant, Liberty Mutual Insurance Company (“Liberty
Mutual”) is a national insurance underwriting business. Two of
its employees, Wetzel and Ross, filed charges of sex discrimi-
nation with the Pennsylvania Human Relations Commission
(“PHRC”). Filing of these charges led the company to review
and change certain employment policies. The PHRC, however,
failed to conciliate the parties, and Wetzel and Ross then filed
charges with the United States Equal Employment Opportunity
Commission (“EEOC”). After the statutory period within
which charging parties are precluded from commencing litiga-
tion, Wetzel and Ross requested and received right-to-sue letters.
On February 28, 1972, appellees commenced a class action on
behalf of female employees of Liberty Mutual, alleging that
appellant’s hiring and promotion policies and its pregnancy
related policies violated Title VII. The court granted the plain-
tiffs’ motion for class action and ordered that the suit could be
maintained as a class action under Rule 23(b)(2) of the Fed.
1. Section 703(a)(1) of the Civil Rights of 1964, 42 U. S. C.
§ 2000e2(a)(1), in pertinent part provides:
“It shall be an unlawful employment ice for an employer
. . . to fail or refuse to hire or to di any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex or national
origin ** o>
‘AT
R. Civ. P. On March 26, 1973, after extensive discovery, Wetzel
and Ross moved for partial summary judgment only as to the
issue of liability. The district court, on January 9, 1974, finding
no issues of material fact, entered an interlocutory order finding
that Liberty Mutual’s pregnancy-related policies violated Title
VII of the Civil Rights Act of 1964. Liberty Mutual subse-
quently filed a motion for reconsideration which was denied by
the court. On February 20, 1974, the district court, pursuant to
Rule 54(b), directed the entry of final judgment as to the
pregnancy-related issues,? thus giving this court jurisdiction
under 28 U. S. C. § 1291. It is from this order that Liberty
Mutual appeals. The district court, in its order of January 9,
1974, also ruled that Liberty Mutual’s hiring and promotion
policies violated Title VII. On March 19, 1974, that court made
its judgment final, and the company appealed at No. 74-1515.
That appeal has been disposed of by another panel of this court,
and we need not discuss the issues presented there.*
Although appellant relegated the issue to a mere footnote,
we believe the question of whether the district court had juris-
diction is worthy of discussion. One who alleges a violation of
Title VII may not sue in federal district court until he has
exhausted his administrative remedies.* The filing of a charge
with the EEOC is a statutory prerequisite to commencing an
action in federal court. Richardson v. Miller, 446 F. 2d 1247,
1248 (C. A. 3 1971).
Appellant contends that the portion of the complaint relating
to the pregnancy policies should have been dismissed because
those claims were not presented to the EEOC. The basis for
this contention is that a box labeled “Benefits” on the Notice of
Charge form was not checked. Instead, a box labeled “Terms
and Conditions” was checked. We find no merit in appellant's
2. The district court’s opinion is reported at 372 F. Supp. 1146
(W. D. Pa. 1974).
3. Wetzel et al. v. Liberty Mutual Ins. Co., No. 74-1515 (C. A.
3, 1975).
4. 42 U.S.C. § 2000e-S(e).
A8
contention. The private litigant plays an important tole in the
enforcement of Title VII. The EEOC was created by Congress
to effectuate the goals of the Civil Rights Act of 1964 (“Act”).
in 1972 the Equal Employment Opportunity Act, 42 USC
§ 2000e-5, provided the Commission with further authority to
bring its own actions. However, the Act did not provide the
Commission with direct powers of enforcement. Since enforce-
ment lies exclusively in.the federal courts, Choate v. Caterpillar
Tractor Co., 402 F. 2d 357, 359 (C. A. 7 1968), the rights of
@ private party, therefore, must not be barred by procedural
technicalities if Title VII is to operate effectively. Alexander
v. Gardner-Denver Co., 415 U. S. 36, 44 (1974). Courts
have continuously construed Title VII so as not to allow pro-
cedural technicalities to bar a claim under the Act. Sanchez v.
Standard Brands, Inc., 431 F. 2d 455 (C. A. 5 1970). The
only jurisdictional prerequisites that must be satisfied to com-
mence federal action are a timely filing of charges with the
EEOC and the receiving and acting on the EEOC notice of
the right to sue. 42 U. S. C. § 2000e-5(e).
Under the Act the charge of discrimination must be initiated
by laymen—people who are apt to be of varying educational
backgrounds and certainly few, if any, having knowledge of the
subtleties of pleading and of statutory distinctions. Further,
the complaints are probably, at this point, not represented by
counsel and should not be held to as strict a standard as
appellants have suggested. Since Wetzel and Ross have satisfied
the jurisdictional prerequisites and are people without legal
expertise, we believe that to deny them access to the federal
courts because of a technical error would seriously undermine
the policies of the Act and serve only to harm the interests of
those whom the Act was designed to protect. “[T]echnicalities are
particularly inappropriate in a statutory scheme in which lay-
men, unassisted by trained lawyers, initiate the process.” Love
v. Pullman Co., 404 U. S. 522, 527 (1972).
Also persuasive is the Supreme Court's decision in McDonnell
Douglas Corp. v. Green, 411 U. S. 792, 798 (1973). The
‘AQ
Court held that since court actions under Title VII are de novo
a complainant is not restricted to “those charges as to which the
Commission has made findings of reasonable cause.” See also
Fekete v. U. S. Steel Corp., 424 F. 2d 331 (C. A. 3, 1970);
Robinson v. Lorillard Corp., 444 F. 2d 791 (C. A. 4, 1971).
We, therefore, believe that the district court properly had
j i li ti q
Pregnancy Benefits.
Liberty Mutual provides its employees with an income pro-
tection plan. The plan is a fringe benefit and provides em-
ployees with the payment of income during periods of disability.
Funding of the plan is partially through employee contributions.
After an employee is out of work eight days because of an ill-
ness requiring the care of a doctor, the employee receives a
percentage of his salary for the duration of his leave. If the
employee has been with the company five years or more,
he receives benefits up to age 65. If the employee has been
with the company less than five years, he receives the benefits
for 103 weeks, Liberty Mutual, however, does not pay any
benefits under the income protection plan for disability due to
pregnancy or for any disability related to pregnancy. Leaves or
temporary absences due to pregnancy-related disabilities are
not covered by the plan.
Liberty Mutual maintains that Title VII does not require
it to include pregnancy benefits in the income protection plan.
In its reply brief and at oral argument, Liberty Mutual primarily
relied on Geduldig v. Aiello, 417 U. S. 484 (1974). Appellant
feels that Aiello is dispositive of the case before us. We believe
there are several distinctions between the cases and therefore
disagree with the appellant.
Geduldig v. Aiello involved the question of whether there was
sex discrimination in violation of the Equal Protection Clause
of the Fourteenth Amendment. Here we are involved with the
question of whether there was discrimination in violation of
Al0
Title VII of the Civil Rights Act of 1964. In this posture our
case is one of statutory interpretation rather than one of con-
stitutional analysis. On this distinction alone we believe appel-
lant’s reliance on Aiello is misplaced.
In Geduldig v. Aiello, the Supreme Court held that the
State of California could choose not to include disabilities re-
lating to normal pregnancy within its disability insurance pro-
gram and not be violative of the Fourteenth Amendment's
prohibition against sex discrimination. The Court relied heavily
on the fact that California’s program was totally self-supporting,
“never drawing on general state revenues.” Geduldig v. Aiello,
supra at 492. We are not faced with an insurance program sim-
ilar to Aiello’s, and we need not attempt to balance public social
welfare interests with the Constitution. An examination of Cali-
fornia’s program showed that only normal pregnancy and de-
livery disabilities were excluded from the benefits, while Liberty
Mutual excluded all pregnancy-related disabilities. It is worthy
of note that at oral argument, appellants counsel declared that
the company’s income protection plan would not cover a dis-
ability suffered by a pregnant women but would have covered
the disability had the woman not been pregnant. The California
program as of January 1, 1974, covers certain pregnancy-related
disabilities. See Geduldig v. Aiello, 417 U. S. 484, 490-91,
note 15.
For the above reasons we do not rely on Geduldig v. Aielio
and find that it is not dispositive of the issues presently before us.
We then will proceed with our analysis, first examining the
legislative history of the statute involved. The Civil Rights
Act of 1964 was enacted to assure equality of employment
opportunities. McDonnell Douglas Corp. v. Green, 411 U. S.
792; Griggs v. Duke Power, 401 U. S. 424 (1971). Reading
the statute and the legislative history of the Act indicates that
one of the goals of Congress was to provide the opportunity
for anyone to enter the job market without being subjected to
disparate treatment because of race, color, religion, sex, or
national origin. “The purpose of this title is to eliminate,
All
through utilization of formal and informal remedial procedures,
discrimination in employment.” H. Rep. No. 914, 1964, U. S.
Code Cong. & Adm. Ne™s 1964, p. 2401. Congress intended to
eliminate any artificial or arbitrary impediments to employment.
Until the 1964 Civil Rights Act, women had little or no legal
weapons to attack their systematic exclusion from many employ-
weapons to attack their systematic exclusion from many em-
ployment opportunities. The legislative history pertaining to the
addition of the word “sex” to the Act is indeed meager. It
appears that the amendment to the Act was offered in a tongue-
in-check manner with the intent to undermine the entire Act
and assist in its defeat. See 110 Cong. Rec. 2804-05 (1964).
In 1972 Congress had the chance to make any changes to the
Act that it felt was necessary. No substantive changes were made
regarding sex discrimination, and we feel this indicates a con-
gressional satisfaction with the operation and administration of
the Act. We, therefore, believe that the broad purposes of the
Act can be applied to sex discrimination cases. Congress in-
tended to strike at all discriminatory treatment of men and
women. Sprogis v. United Air Lines, Inc., 444 F. 2d 1194,
1198 (C. A. 7 1971), cert. denied, 404 U. S. 991 (1971).
To effectuate the goals of Title VII, Congress created the
EEOC. 42 U.S. C. § 2000e-4. As an agency, the EEOC was
given the power by congress to issue regulations or guidelines
that would indicate what are or are not proscribed discriminatory
practices. These guidelines are the agency’s interpretation of the
statute. When faced with statutory construction problems,
courts have generally held that the guidelines are entitled to
great deference. McDonnell Douglas Corp. v. Green, supra;
Griggs v. Duke Power Co., supra.
The guidelines® we deal with here prohibit an employer from
"§. “§ 1604.9 Fringe benefits.
“(a) ‘Fringe benefits,’ as used herein, includes medical, hospital,
accident, life insurance and retirement benefits, profit-sharing and
(Continued on next page)
Al2 ;
discriminating between men and women with regard to employ-
ment policies and fringe benefits.
Appellant urges us to reject these guidelines on the basis that
the guidelines were contra to the EEOC’s earlier position and
are now wholly inconsistent with the policy and understanding of
the statute and therefore should be given no deference by this
court. Appellant cites us Espinoza v. Farah Mfg. Co., 414 U. S.
(Continued from preceding page)
bonus plans; leave, and other terms, conditions, and privileges of em-
ployment.
“(b) It shall be an unlawful employment practice for an em-
a to discriminate between men and women with regard to fringe
ts. :
“(d) It shall be an unlawful employment practice for an em-
ployer to make available benefits for the wives and families of male
employees where the same benefits are not made available for the
husbands and for the wives of male employees which are not made
available for females employees; or to make available benefits to the
husbands of female employees which are not made available for male
emplovees. An example of such an unlawful employment practice is a
situation in which wives of male employees receive maternity benefits
while female employees receive no such benefits.
eee
— Employment policies relating to pregnancy and child-
“(b) Disabilities caused or contributed to by pregnancy, mis-
carriage, abortion, childbirth, and recovery therefrom are, for all
job-related purposes, temporary disabilities and should be treated as
such under any health or temporary disability insurance or sick leave
plan available in connection with employment. Written and unwritten
employment policies and practices involving matters such as the com-
mencement and duration of leave, and availability of extensions, the
accrual of seniority and other benefits and privileges, reinstatement,
and payment under any health or temporary disability insurance or
sick leave plan, formal or informal, shall be applied to disability due
to pregnancy or childbirth on the same terms and conditions as they
are applied to other temporary disabilities.
“(c) Where the termination of an employee who is temporarily
disabled is caused by an employment policy under which insufficient
or no leave is available, such a termination violates the Act if it has
a disparate impact on employees of one sex and is not justified by
business necessity.”
Al3
86 (1973) in support of the argument. In that case the peti-
tioner alleged that Farah had discriminated against her because
of her “national origin” in violation of Title VII. The Supreme
Court in Espinoza said the EEOC guideline then in question,
- “fT Yhe guideline relied on . . . is no doubt entitled to
great deference, [citing cases] but that deference must have
limits where, as here, application of the guideline would
be inconsistent with an obvious congressional intent not
to reach the employment practice in question.” Espinoza
supra at 94.
The Court was persuaded not to follow the EEOC interpreta-
tion of “national origin” because of legislative action by Con-
gress. The “obvious congressional intent” was found in other
statutes that required federal employees to be citizens of the
United States. The Court concluded that Congress did not intend
that citizenship be a requirement for federal employment and “at
the same time, prevent private employers from doing likewise.”
Espinoza supra at 91. The EEOC guideline was, therefore, re-
jected. Appellant suggests that because the EEOC had for sev-
eral years indicated that the denial of pregnancy benefits did not
violate the Act and now holds that this practice does violate
the Act, the EEOC is inconsistent, making the guidelines not
worthy of our consideration. The inconsistency to which the
Supreme Court addressed itself in Espinoza was that the EEOC
guideline was not reflective of the congressional intent. The
Court did say it was significant that the EEOC had held two
different views, but went on to say that the more recent guide-
line was entitled to great deference. Espinoza supra at 94. Unlike
Espinoza, we have not found any congressional intent contrary
to the EEOC guideline nor any “compelling indications” that it
is wrong. Appellant has not shown any evidence in light of
the legislative history that would indicate that the guidelines are
inconsistent with any congressional intent. A study of the legis-
lative history of the Act does not show any intent other than
to strike at the broad spectrum of discrimination.
Al4
We are not persuaded by appellant’s argument that because
the guidelines in question were issued in 1972, they should not
be given our deference. The EEOC as the agency charged with
the responsibility of administering the Act, has issued the guide-
lines to keep pace with changes in society’s attitudes. This evolu-
tionary process is a necessary function of our legal system—a
system that must remain flexible and adaptable to ever-changing
concepts of our society. Congress has recognized this intrinsic
process. See S. Rep. No. 92-415, 92nd Cong., Ist Sess., p. 5,
comments by Sen. Williams.
We feel that the legislative purpose of the Act is furthered
by the EEOC guidelines and that the guidelines are consistent
with the plain meaning of the statute. Mindful that the guide-
lines are interpretive rules, we will give them our deference
as required by Griggs v. Duke Power Co., supra.
Under the pertinent guidelines, it is discriminatory to treat
pregnancy differently from other temporary disabilities. 29
C. F. R. § 1604.10(b). Liberty Mutual expressly excludes
all pregnancy disabilities from coverage under its plan while
at the same time covers all other disabilities except those
voluntarily inflicted.
Appellant, in justification of this policy, argues that because
pregnancy is voluntary and illnesses are not, pregnancy can be
excluded from its income protection plan. We disagree. Volun-
tariness is no basis to justify disparate treatment of pregnancy.
There are a great many activities that people participate in that
involve a recognized risk. Most people undertake these activities
with full knowledge of the potential harm. Drinking intoxicating
beverages, smoking, skiing, handball and tennis are all types of
activities in which one could sustain harm.
According to the Liberty Mutual’s policy, all disabilities that
could result from the above activities are covered under the
income protection plan. Even if we were to accept appellant’s
argument of voluntariness, we find that some voluntary disabil-
ities are covered while one voluntary disability that is peculiar
Al5
to women is not so covered. Either way we find no support for
appellant’s argument. Moreover, pregnancy itself may not be
voluntary. Religious convictions and methods of contraception
may play a part in determining the voluntary nature of a
pregnancy. There is no 100% sure method of contraception,
short of surgery, and for heatlh reasons many women cannot
use the pill. This court will not accept “voluntariness” as a rea-
sonable basis for excluding pregnancy from appellant’s income
protection plan.
Appellant next contends that the plan covers only those dis-
abilities arising from sickness, and since pregnancy is not a
sickness it is properly excluded from coverage. Again we dis-
agree. We believe that pregnancy should be treated as any
other temporary disability. Employers offer disability insurance
plans to their employees to alleviate the economic burdens
caused by the loss of income and the incurrence of medical
expenses that arise from the inability to work. A woman, dis-
abled by pregnancy, has much in common with a person dis-
abled by a temporary illness. They both suffer a loss of income
because of absence from work; they both incur medical ex-
penses; and the pregnant woman will probably have hospitaliza-
tion expenses while the other person may have none, choosing
to convalesce at home.*
Thus, pregnancy is no different than any other temporary
disability under an income protection plan offered to help em-
ployees through the financially difficult times caused by illness.
Under Liberty Mutual’s plan nearly all disabilities are covered.
We believe that an income protection plan that covers so many
temporary disabilities but excludes pregnancy because it is not
a sickness discriminates against women and cannot stand.
Appellant also contends that the plan does not violate Title
VII because of the company’s legitimate interest in maintaining
the financial integrity of the plan.
6. See the proposal by Citizens’ Advisory Council on the Status
of Women, Love’s Labors Lost: New Conceptions of Maternity
Leaves. 7 Harv. Civ. Rights—Civ. Lib. L. Rev. 260, 282 (1972).
Al6
Appellant has offered no statistical information from which
we could conclude that the increased cost for pregnancy bene-
fits would be “devastating.” We do realize that there would
be an increased premium. However, we are not convinced that
integrity of the plan would be jeopardized.
Giving our deference to the EEOC guidelines, we agree that
cost is no defense under Title VII to this particular i issue. 29
C. F. R. § 1604.9(e).
Appellant advanced several other enguniats to support its
contentions, but we find them wholly without merit. The com-
pany’s policy is neutral on its face but treats a protected class
of persons in a disparate manner. This is precisely what Title
VII intends to strike down. Griggs v. Duke Power Co., 401
U. S. 424.
We conclude that Liberty Mutual’s income protection plan
violates Title VII of the 1964 Civil Rights Act by excluding
pregnancy benefits from coverage while including other kinds
of temporary disabilities.
Maternity Leave.
Prior to September 1970, appellant’s female employees who
became pregnant were terminated after the eighth month with
no right to re-employment. This policy was modified in Septem-
ber 1970 and again in November 1971 to allow a pregnant
woman “to work for as long as her physician certifies her ability
to work.” This is presently the company’s policy. It further
allows a woman who has been employed by the company for
one year to take a maternity leave of absence of six months
from when the leave commences, or three months from the
date of delivery, whichever comes first. The employee must
return to work by or within the time limit or lose her job. This
time limitation is applied only to maternity leaves and not to
any other leave of absence for other temporary disabilities. In
essence, this means a person who suffered from a temporary
Al7
disability other than pregnancy would return to work after re-
covery; however, a woman with pregnancy related disabilities
must return to work within the specified time limit or be fired.
As we did in our analysis of pregnancy benefits and for the
same reasons, we allow great deference to the EEOC guidelines.
Also in keeping with our prior analysis we will view the com-
pany’s leave policies, keeping in mind that pregnancy is to be
treated as any other temporary disability.
The EEOC guidelines concerning the leave issue are in perti-
nent part as follows:
“* * * * [Ejmployment policies and practices involving
matters such as the commencement and duration of leave,
the availability of extensions, the accrual of seniority and
other benefits * * * shall be applied to disability due to
pregnancy or childbirth on the same terms and conditions
as they are applied to other temporary disabilities.” 29
C. F. R. § 1604.10(b).
“Where the termination of an employee who is tem-
porarily disabled is caused by an employment policy under
which insufficient or no leave is available, such a termina-
tion violates the Act if it has a disparate impact on em-
ployees of one sex and is not justified by business neces-
sity.” 29 C. F. R. § 1604.10(c).
The guidelines also provide that it is a violation of title VII
for an employer to discriminate between men and women with
regard to “fringe benefits,” of which leaves are one, 29 C. F. R.
§ 1604.9(a) and (b). It would appear, under the EEOC’s inter-
pretation, that Liberty Mutual’s maternity leave policy violates
Title VII. Pregnancy, as a temporary disability, must be treated
no differently than any other disability. We are not requiring
appellant to give to women any more than it already gives to
men. Since appellant provides leave for all temporary disabilities,
it must provide leaves for pregnancy on the same basis.
In cases that have dealt with Title VII, courts have held that
any policy that operates to totally exclude women is violative of
the Act. Willingham v. Macon Telegraph Pub. Co., 482, F. 2d
A18
535 (C. A. 5 1973); Sprogis v. United Air Lines, Inc., 444
F. 2d 1194; Weeks v. Southern Bell Tel. & Tel. Co., 408 F, 2d
228 (C .A. 5 1969). In essence Liberty Mutual has two leave
policies—one for pregnancy and one for other temporary disabili-
ties. Since pregnancy is a disability common only to women, to
treat it differently by applying a separate leave policy is sex
discrimination. Liberty Mutual argues that since most women are
recovered within six weeks and that most women do not ‘return
to work after childbirth, the company is justified in maintaining
the present maternity leave policy. We disagree. This attitude is
precisely what Congress intended to strike down. Discrimination
based on stereotypes or overly categorized distinctions between
men and women forbidden by Title VII. Bowe v. Colgate-
Palmolive Co., 416 F. 2d 711 (C. A. 7 1969); Weeks v.
Southern Bell Tel. & Tel. Co., supra. Justice Marshall, concur-
ring in Phillips v. Martin Marietta Corp., 400 U. S. 542, 545
(1971), recognized that Congress intended to prevent employers
from relying on stereotyped characterizations in the formulation
of their employment policies. The legal standard articulated by
the EEOC requires that women be considered on an individual
basis of their own particular capabilities and not on “characteris-
tics generally attributed to the group.” 29 C. F. R. § 1604.2
(a)(1) (ii). A policy, therefore, that is founded on generaliza-
tions, such as most women after giving birth are fully recovered
within six weeks, on that most women do not return to work
after giving birth, is discriminatory because it makes no pro-
vision for considering individual capabilities. Appellant’s ma-
ternity leave policy, requiring all women to return to work
within three months or be fired, penalizes women because of a
physiological condition found only in their sex. There is no
leeway under this leave policy to ascertain individual capa-
bilities or characteristics. As the district court properly found,
Liberty Mutual’s policy bears “no relation to the fitness of any
individual female to perform the functions of her job.” 372
F. Supp. at 1161. One woman may be physically and mentally
Al9
prepared to return to her job within the arbitrary time limit,
while another, although wishing to return, may be unable to
do so because she has not fully recovered. We believe that a
leave policy that in essence operates as two distinct policies, one
affecting only women, cannot stand under Title VII. A ma-
ternity leave policy that is applied to one sex only, that is based
on class generalizations of that sex, and that treats pregnancy
different from other temporary disabilities, is not permitted
under Title VII. The district court, therefore, properly con-
cluded, as a matter of law, that Liberty Mutual’s maternity
leave policy is violative of § 703 of Title VII.
Appellant, Liberty Mutual, did not assert at trial or on its
motion for reconsideration any affirmative defense, nor did it
allege any evidentiary facts that could arguably give rise to a
defense." And even now, appellant’s briefs merely allude to the
possibility of a defense, never presenting to this court any sub-
stantive arguments that have been developed from the cases
that have discussed this issue. There are a number of cases that
consider the business-necessity defense, but Liberty Mutual has
not cited any of them in relation to its justification argument.
The District court, however, did address itself to the possibility
of a bona fide occupational qualification, 372 F. Supp. at 1161.
The court, relying on Weeks v. Southern Bell Tel. & Tel. Co.,
supra, and Rosenthal v. Southern Pacific Co., 444 F. 2d 1219
(C. A. 9 1971), concluded at Liberty Mutual did not meet
its burden of proof because it did not present any evidence that
could raise that defense.
It is only now, on appeal, that appellant attempts to justify
its discriminatory policies. It is clear that an issue not raised
at the trial and then presented for the first time on the appeal
will not be considered by this court. A party who fails to plead
or fails to produce evidence that raises certain issues is “pre-
7. On Liberty Mutual’s motion for reconsideration, the district
ee om oe Oe SE aly enenee &
support of its argument. 372 F. Supp. at 1164.
A20
cluded from raising such issues on appeal.” Cady v. Twin Rivers
Towing Co., 486 F. 2d 1335, 1337 (C. A. 3 1973); Bogacki
v. American Machine & Foundry Co., 417 F. 2d 400, 407
(C. A. 3, 1969);.Crompton-Richmond Co.-Factors v. Smith,
392 F. 2d 577 (C. A. 3 1967).
We conclude that Liberty Mutual's income protection plan
and maternity leave policy are violative of Title VII of the
1964 Civil Rights Act. The district court properly granted sum-
mary judgmert.
For the foregoing reasons, the judgment of the district court
will be affirmed.
A21
APPENDIX C.
‘UNITED STaTEs District Court
W. D. Pennsylvania |
SANDRA WETZEL and: Mans Ross on belialf of themselves. .
; and all others similarly situated,
Plaintiffs,
vs.
LIBERTY MUTUAL INSURANCE COMPANY, a corporation,
Defendant.
Civ. A. No. 72-169
Jan. 9, 1974
OPINION
Weser, District Judge
The two named Plaintiffs on behalf of themselves and all
other female technical employees employed in Defendant Liberty
Mutual Insurance Company's Claims Department (the Com-
pany) have filed a Complaint charging that the Company dis-
criminated against women in hiring, job classification, promo-
tions, and in the compensation and job benefits they received
for the jobs they were allowed to hold.
The Representative Plaintiffs are Sandra Wetzel, a woman,
who was hired by Defendant Company as a “Claims Represen-
tative” in July 1967, and Mari Ross, who was hired by Defend-
ant Company as a “Claims Representa. ” in September 1967.
Both allege that they suffered discrimination by reason of their
sex because of the hiring, job classification, pay differential, and
employment benefit policies of Defendant Company and that
A22
these policies were applied to all female technical employees in
the Defendant's Claims Department throughout the nation where
Defendant Company did business.
The Court determined that the action should proceed as a
class action covering all female technical employees in the De-
fendant’s Claims Department in the entire geographical area
where the Company did business. The class as now defined in-
cludes all such employees who were hired or working for the
Company in its Claims Department since July 2, 1965, the
effective date of Title VII of 42 U. S. C. § 2000e et seq., the
Equal Employment Opportunity. Act of 1972.
Extensive discovery has been employed and the Plaintiffs now
file a motion for partial summary judgment on certain of the
issues raised. It is agreed between the parties that one of the
issues, designated the “equal pay” issue, is not susceptible of
summary judgment at this time because there are disputed issues
of fact with respect to whether or not the work performed by
women in the job classification of “Claims Representative” was
equal to the work performed by men in the job classification of
“Claims Adjuster” for which they were paid a substantially
higher salary. However, the Plaintiffs at this time allege that
there is no genuine issue as to any material fact with respect to
the job classification under which men and women were origi-
nally hired as technical employees in the Claims Department,
with regard to the promotional policy within the Claims De-
partment, and with regard to the pregnancy and maternity leave
policies of the Company including the disability income protec-
tion plan of the Company as applied to women on maternity
leave.
The key point of discrimination set forth in the pleadings,
evidentiary material and briefs of the plaintiffs, and the amicus
curiae brief of the United States Equal Employment Opportunity
Commission is the hiring policy of the Company, since original
assignment in effect determines the employee’s future chances
of promotion within the Company. Because the Company in its
<=
A23
Claims Department promotes from its own ranks, the opportu-
nity for advancement depends upon the entry level position to
which an employee is assigned upon first being employed by the
Company's claim division. Promotion to the higher rank of
Claims Supervisor was limited to persons holding the position of
Claims Adjuster and throughout most of the period under con-
sideration through 1970 was limited to male employees because
all Claims Adjusters were male. On the other hand the entry
level classification in the Company's Claims Department oc’
“Claims Representative” was exclusively limited to women
throughout most of the period under consideration here. There
was no avenue of promotion to Claims Supervisor and higher
supervisory positions from those personnel classified as “Claims
Representatives” on entry into the Company in its Claims Di-
There were two higher supervisory positions in the “Claims
Representative” category, that of “Supervisory Claims Repre-
sentative” and “Claims Representative Supervisor”, but no pro-
_motion beyond the second rank. Although the line of responsi-
bility from “Claims Representative Supervisor” runs to “Claims
Supervisor” there is no similar line of promotion because all
“Claims Supervisors” are drawn from the ranks of “Claims
Adjuster.”
A24
The lines of responsibility and promotion are illustrated as
follows:
CLAIMS DEPARTMENT - TECHNICAL EMPLOYEES
LINES OF RESPONSIBILITY AND PROMOTION
Division Claims Manager
Assistant SS eC Hanaaee
Branch Office Claims Manager
Branch Office Ass stant claims Manager
Claims
tive Supervisor
Ciaims Representa
ti
Supervising Claims Representative
Claims Representative (CR)
lines of responsibility
lines of promotion
The same educational requirements were in 1965 and there-
after until 1970 with respect to the hiring of “Claims Ad-
justers” and “Claims Representatives”, a college degree. No
Prior experience in the insurance business was required and
in fact the Company did not hire persons who had worked for
other insurance companies in its entry level positions in the
Claims Department.
Although the Defendant Company had employed “Claims
Adjusters” for a long period of time the position of “Claims
Representative” was created in mid-1965. The position was
created when the Company had decided to handle more of its
claims work from inside its offices. A recruiting brochure for
A25
this position was prepared and circulated through college
placement offices and employment agencies. The qualification
for the “Claims Representative” position included a college
degree. The recruiting brochure is entirely female oriented. Its
title page bears the caption and picture identifying the position
as a job fit for a queen. It shows women in its illustrations of
persons performing their duties in this capacity. Between July
1, 1965 and the end of 1966, 401 persons were hired for the
positions of “Claims Representative”, not one of which was
male. Between July 1, 1965 and March 17, 1972, 2,329 per-
sons were hired as “Claims Representatives” of which 2,302
of 98.84% were women. The first male “Claims Representa-
tive” was hired in 1969, four in 1970, and twenty in 1971.
During the period from 1965 until the end of 1970, the Com-
pany hired over 2,000 “Claims Adjusters”, not one of which
was female. :
The recruiting brochure used by the Company during this
period describing the position and duties of “Claims Adjusters”
was entirely male oriented, its illustrations showing men per-
forming the duties of the position, and bearing the legend in
large type, “Are you the right man?”, and reciting the avenues
of advancement from Claims Adjuster through Branch Office
Claims Manager, Division Claims Manager, Manager Home
Office Examiners’ Division, and so on up the ladder. The Com-
pany promoted to advanced positions in its Claims Department
solely from those persons who had served it in the capacity of
“Claims Adjuster”. aera
The two Representative Plaintiffs were hired in the position
of “Claims Representative” and they have deposed that in
answer to their inquiries they were informed that the position
of “Claims Adjuster”, the beginning of the promotional ladder
in the Claims Department, was not available for women. It has
been admitted by representatives of the Defendant that the two
named Representative Plaintiffs were qualified for the position
of “Claims Adjuster” at the time of the original hiring.
A26
It would serve little purpose to recite in detail the great mass
of statistical evidence which the Plaintiffs have produced in
support of their contention that the two initial entry positions
were segregated between male and female applicants, that the
educational requirement for both positions was the same, that
no prior insurance experience was required for either position,
that the functions performed in these positions were very similar
that the pay differential between the positions was substantial,
being approximately $2,500 per year greater for the Claims
Adjuster, that prior to 1971 no opportunity was given to women
“Claims Representatives” to qualify for the position of “Claims
Adjuster”, and that all promotions to higher positions in the
Claims Department were made from the ranks of the exclu-
sively male “Claims Adjuster” classification.
In addition to the statistical evidence which is unrebutted here
the Plaintiffs have produced additional supporting evidence of
the Company’s employment policies with respect to women in
the Claims Division. Much of this evidence is in the form of
oral testimony and affidavits which may be subject to a ques-
tion of credibility but a good deal of the supporting evidence
is documentary and supports the Plaintiffs’ contention of a
recognized pattern of treating the male and female employees
in the Claims Department differently in respect to recruitment,
hiring classifications, promotional opportunities, and salary.
We are not speaking of salary or compensation with respect
to the question of whether equal pay was given for the same
work but in connection with the entry level salary paid for the
two classifications and the salary differential between “Claims
Representatives” of considerable experience and the starting
salary which they could receive when openings were finally
made available to “Claims Representatives” to become “Claims
Adjusters”.
Two sections of Fed. R. Civ. P. 56 are applicable to our con-
sideration of Plaintiffs’ motion for summary judgment. Fed. R.
Civ. P. 56(c) provides in part:
A27
“The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and [the]
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact, and
that the moving party is entitled to judgment as a matter
of law.”
and Fed. R. Civ. P. 56(e) which provides in part:
“When a motion for summary judgment is made and sup-
ported as provided in this rule, an adverse party may not
rest upon the mere allegations or denials of his pleading,
but his response, by affidavits, or as otherwsie provided in
this rule, must set forth specific facts showing that there
is a genuine issue for trial. If he does not so respond, sum-
mary judgment, if appropriate, shall be entered against
him.”
The Plaintiffs have relied chiefly on statistical evidence in
support of their contention of discriminatory employment pol-
icies and in many cases the courts have accepted such evi-
dence in determination of whether Title VII has been violated.
Parham v. Southwestern Bell Telephone Co., 433 F. 2d 421
[8th Cir. 1970]; Witherspoon v. Mercury Freight Lines, Inc..
457 F. 2d 496 [Sth Cir. 1972]; Bing v. Roadway Express, Inc.,
444 F. 2d 687 [Sth Cir. 1971]; Rowe v. General Motors Corp.,
457 F. 2d 348 [Sth Cir. 1972]. In accordance with these deci-
sions and under the doctrine of McDonnell Douglas Corp. v.
Green, 411 U. S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
[1973], once the plaintiff has established a prima facie case by
setting forth statistics of this kind the burden is on the employer
to sufficiently explain the disparity in hiring; conclusory state-
ments that the employer never discriminated in hiring is insuf-
ficient to satisfy this burden. As stated in McDonnell, supra,
“The burden then must shift to the employer to articulate some
legitimate, non-discriminatory reason for the respondent’s rejec-
tion.” (p. 802, 93 S. Ct. p. 1824). We are of the opinion
that the Defendant’s response to the Plaintiffs’ motion for sum-
mary judgment fails to address this burden at all, let alone rebut
the Plaintiff's evidence. |
A28
_ The response of the Defendant raises eight issues of defense,
as follows:
1.
Neither of the named Representative Plaintiffs is currently
in the employ of the Defendant. This is not a contested issue
of fact. The Plaintiffs admit that both the representative party
Plaintiffs have left the employ of Defendant and the ques-
tion of whether or not their termination from employment was
voluntary or forced by discriminatory employment practices of
the Defendant is not an issue before us at this time. This is a
matter of law concerning standing and it has been held that a
former employee may bring an action to enforce rights under
this statute claimed to have been infringed. In Hackett v.
McGuire Bros., Inc., 445 F. 2d 442 [3d Cir. 1971] this conten-
tion was rejected:
“The national public policy reflected . . . in Tilte VII...
may not be frustrated by the development of overly tech-
nical judicial doctrines of standing or election of remedies.
If the plaintiff is sufficiently aggrieved so that he claims
enough injury in fact to preesnt a genuine case or contro-
versy in the Article III sense, then he should have stand-
ing to sue in his own right and as a class representative.”
(pp. 446, 447).
The Circuit Court continued:
“A person claiming to be aggrieved may never have been
an employee of the defendant. Indeed the Act forbids dis-
crimination not only my employers, 42 U. S. C. § 2000e-
2(a)(2), but also by potential employers, 42 U. S. C.
§ 2000e-2(a)(1), by labor organizations, 42 U. S. C.
§ 2000e-2(c), and by employment agencies, 42 U. S. C.
§ 2000e-2(b). An aggrieved person obviously is any per-
son aggrieved by any of the forbidden practices. (pp.
445-446).
An interesting commentary on the argument asserted to this court
was made in Reed v. Arlington Hotel Co., Inc., 476 F. 2d
721 [8th Cir. 1973]:
A29
_ .“... iff this kind of an individual [a discharged employee,
not seeking reinstatement] would be prevented from :
ing class actions as the rules permit, there would be a
windfall for the employer, and when any such matter was
coming up, all they would have to do is discharge the
_The Defendant argues that the representative party Plaintiffs
were offered “Claims Adjuster” status and has filed evidence
to this effect. This is not denied by Plaintiffs but they con-
tend that the terms of the offer were unacceptable and were
made after the charges of discrimination were filed in this
case with the United States Equal Employment Opportunity
Commission in 1971. We find this to be a disputed issue of
fact. which may be relevant to the question of damages of the
representative party Plaintiffs, but irrelevant to the question of
Violation of the statute which is before us. Under all circum-
stances, it is shown by the evidence that the offer of “Claims
Adjuster” status was made long after the effective date of. the
statute in question, after both representative Plaintiffs had been
employed in the positions of “Claims Representatives” for
several years, and after the filing of the Complaints before the
EEOC in this matter.
3.
_ Defendant claims that there is a dispute as to the content
of conversations between representatives of the Company and
a representative of the Pennsylvania Human Relations Com-
mission. This alleged conversation bears on the Company's
motive and intent in offering “Claims Adjuster” status to the
named-Plaintiffs at the time that it did. We find this completely
immaterial to the issue before us at this time because the
offer of Claims Adjuster status was not made until the alleged
discriminatory practices in violation of Title VII of the Act
had continued for several years and the issue had been raised
A30
by a Complaint to the Equal Employment Opportunity Com-
mission by the named Plaintiffs.
4.
The Defendant contends that there is a disputed issue of fact
on the question of whether or not the qualifications and entrance
requirements for the position of “Claims Adjuster” are subsan-
tially different from those of “Claims Representative”. Although
with respect to the duties and responsibilities of each position
which we have previously designated as the “equal pay” issue,
not before the Court on this Summary Judgment motion, never-
theless we are concerned at this time with whether or not quali-
fied female applicants were excluded from the position of
“Claims Adjuster” and its subsequent promotional ladder. The
statistical evidence shows that of more than 2,000 persons hired
for the position of “Claims Adjuster” up through 1970, not one
was female. The Defendant’s own representatives have admitted
that the representative Plaintiffs in this case were qualified for
the position of “Claims Adjuster” at the time of original hiring.
Therefore, we find that the Defendant has not met the burden of
showing why no female personnel were hired for the “Claims
Adjuster” position during the period following the effective date
of Title VII until sometime after August 1971 and subsequent to
the filing of complaints in the within matter. Plaintiff's contention
is further supported by evidence that no female employees occu-
pied the supervisory position of “Claims Supervisor” in the
Company which were filled from the ranks of the “Claim Ad-
justers” until at least 1970. If the jobs were substantially dis-
similar as the Defendant claims, the differential in starting
salary may be justified but the total exclusion of women from
entry into the higher paid “Claims Adjuster” position would
remain as a discriminatory practice, and the promotional policy
of the company in drawing all of its supervisory personnel from
the ranks of the exclusively male “Claims Adjusters” continued
and emphasized the discriminatory effect of the policy. There-
A31
fore, we find that the Defendant's argument of a difference in
the qualifications or duties of the two positions is immaterial to
the Plaintiffs’ charge that women were discriminated against in
the selection of persons to fill the “Claim Adjuster” position.
The company has offered no evidence of any bonafide occupa-
tional qualification to justify the complete exclusion of women
for this position for over a period of five years, particularly in
view of its later determination that some women “Claims Repre-
sentatives” were qualified for and were offered these positions.
5.
The Defendant argues that it is not clearly established by the
evidence that a large number of Defendant’s female employees
were desirous of and qualified for better positions. We cannot
see the materiality of this argument to the question presently
before us. The undisputed evidence establishes that after charges
were filed in this case, the Defendant did interview its “Claims
Representatives” and that 10% of them were offered and ac-
cepted positions as “Claims Adjusters”. It was further established
by testimony of a Company representative that the Company
considered one-third of its women “Claims Representatives” to
be qualified for the position of “Claims Adjuster”. We fail to
see how these facts alter the statistical evidence that of the more
than 2,000 “Claims Adjusters” hired between 1965 and 1970
none were women, that all of the “Claims Representatives”
hired during this period were women, that no woman in the
job classification of “Claims Representative” was ever promoted
to the supervisory position of “Claims Supervisor” during this
period; that the Company deliberately engaged in the recruitment
of women for the “Claims Representative” position and repre-
sented the “Claims Adjuster” position to be solely a position for
male applicants.
6.
The Defendant objects to using the import of the recruiting
brochures which were offered in evidence by Plaintiffs and has
A32
shown that they have since been superseded by new recruiting
literature that is not sex oriented. However, in this matter as
in several other matters offered in defense in this case the evi-
dence shows that the Company policy changed after having
been continued for a period of approximately five years from
the effective date of Title VII and after the threat of the in-
stant litigation became imminent. While the change in Com-
pany policy may affect the question of the amount of damages
for which it may be liable, we cannot see what effect it has on
the liability of Defendant for its policy from and after July
2, 1965. 7
7.
The Defendant disputes the Plaintiffs’ statement that Defend-
ant discouraged acceptances for the offer given to female
“Claims Representatives” for re-classification to the position of
“Claims Adjuster”. We do not find this to be a dispute on a
material issue of fact. Whether or not the company discouraged
its female “Claims Representatives” from accepting the offered
position of “Claims Adjuster”, after that occupational classifi-
cation was opened to women is immaterial to the issue of
whether or not the Company practiced discrimination in its em-
ployment policies from and after July 2, 1965.
For the purposes of this motion we may assume that the
Company did not discourage its female employees from ac-
cepting offers to transfer to the classification of “Claims Ad- -
juster.”
8.
The Defendant disputes the inferences which the Plaintiffs
draw from the facts that no women were promoted to the posi-
tions of Branch Office Claims Manager and above. Whether
or not there is a dispute from these inferences the undisputed
fact remains that no women in the Defendant's organization
were promoted to or held these positions, and the Defendant
has failed to come forward with any evidence to explain or
refute the disparity in promotional practices.
A33
Il.
| A second issue presented by Plaintiffs’ motion for summary
judgment may be broadly categorized as the maternity leave
issue. This in turn is divided into two sub-issues which we
label as
(a) the maternity leave conditions of employment and
(b) the income protection plan as applied to maternity
leave.
(a) Maternity leave policy.
Until March 1967, the Company policy was to terminate
the employment of a pregnant employee at the end of her sixth
month of pregnancy. Thereafter, until September 1970 the
policy was to terminate an employee after the eighth month of
pregnancy. An employee so terminated could be re-employed,
at the sole discretion of the Company, if she re-applied for
employment after the birth of her child and if there was a posi-
tion, available.
In September 1970, Company policy was changed to re-
quire pregnant employees either to terminate employment or
to take a leave of absence at the end of the eighth month and
to return to work either within six months of the date of termina-
tion of employment or three months from date of delivery,
In November 1971, Company policy was again changed to
permit an employee to work for as long as her physician certifies
her ability to work prior to commencing a maternity leave of
absence.
(a) Income Protection Policy.
The Company provides as a fringe benefit of employment
an Income Protection Plan which provides for the payment of
income during periods of disability. This plan is funded by
insurance benefits. The only long term disability for which no
A34
benefits are provided is pregnancy. Furthermore, the Defend-
ant’s health insurance plan provides coverage for children of
employees who are working for the Company at the time of
the birth of the child, and this excludes from coverage the child
of an employee who is absent on a maternity leave of absence
at the time of the birth of the child.
There is no disputed issue of fact as to the provisions of the
maternity leave policies and the fringe benefit coverage of
Defendant Company. The question presented to us is solely a
matter of law as the application of Title VII to these un-
disputed facts.
A threshold question raised by Defendant is that the Plain-
tiffs have not fulfilled the statutory requirement of exhaustion
of the administrative remedy, 42 U. S. C. § 2000e5(e) because
the charges filed by these Plaintiffs with the EEOC never
mentioned this aspect of the complaint. The policy of the
Statute is to give the EEOC an opportunity to investigate and
conciliate charges of discrimination.
The strongest case urged by Defendant Company is Tedford
v. Airco Reduction Co., 4 F.E.P. Cases 406 [Sth Cir. 1972],
where the Court of Appeals reversed the dismissal by the Dis-
trict Court of a claim for discriminatory hiring practices be-
cause of mootness. The Appeals Court held that the sub-
sequent hiring of plaintiff did not extinguish plaintiff's claim
for back wages. However, the Court of Appeals did sustain
the dismissal of claims of a discriminatory seniority system and
discriminatory job assignments because,
“the only factual allegation in Tedford’s EEOC com-
plaint was that Airco had refused to hire him as a truck
driver because of his race.
“But giving this factual allegation the most generous con-
struction possible, we still are unable to conclude that the
investigation could properly have extended to Airco’s
seniorty system, the driver lists, and the like. A charge
A35
filed before the EEOC is not a plenary charter for a Com-
mission investigation of every aspect of a company’s em-
ployment practices. The conclusion is unavoidable that the
EEOC has never been called upon to investigate these
practices, and accordingly that litigation of their validity
in federal court is premature.” 4 F.E.P. Cases, p. 409.
However, this was the same Circuit Court that decided Sanchez
v. Standard Brands, 431 F. 2d 455 [Sth Cir. 1970], and the
Tedford court gave due regard to the Sanchez doctrine.
However, the courts have not restricted a plaintiff's suit under
42 U. S. C. § 2000e5(e) to the specific issues raised before
the EEOC, nor to the specific findings of the EEOC.
“Respondent satisfied the jurisdictional prerequisites to a
federal action (i) by filing timely charges of employment
discrimination with the Commission and (ii) by receiving
and acting upon the Commission’s statutory notice of the
right to sue, 42 U. S. C. §§ 2000e-5(a) and 2000e-5(e).
The Act does not restrict a complainant’s right to sue to
those charges as to which the Commission has made
findings of reasonable cause, and we will not engraft on
the statute a requirement which may inhibit the review of
claims of employment discrimination in the federal courts.
... and the courts of appeal have held that, in view of the
large volume of complaints before the Commission and the
nonadversary character of many of its proceedings ‘court
actions under Title VII are de novo proceedings and .. . a
Commission “no reasonable cause” finding does not bar a
lawsuit in the case.’ Robinson v. Lorillard Corp., 444
F. 2d 791, 800 [C.A. 4, 1971]; Beverly v. Lone Star
Lead Construction Corp., 437 F. 2d 1136 [C.A. 5,
1971]; Flowers v. Local 6, Laborers International Union
of North American, 431 F. 2d 205 [C.A. 7, 1971] Fekete
v. United States Steel Corp., 424 F. 2d 331 [C.A. 3,
1970].” McDonnell Douglas Corp. v. Green, 411 U. S.
792, 798-799, 93 S. Ct. 1817, 1822, 1823, 36 L. Ed. 8d
668 [1973].
In Sanchez v. Standard Brands, Inc., cit. supra, it was ex-
plained that ix. filing a charge with the EEOC an aggrieved
person is supplied with a simple one-page charge form in which
A36
a row of boxes is provided to check the category of discrimina-
tion. We have as Exhibits in the present case the Notice of
Charge which the EEOC gave to Defendant Company for each
case which indicates “Basis of Discrimination—Sex”, and “Na-
ture of Charge—Promotion—Terms and Conditions.” The
Sanchez court found that no charging party should be barred
from the assertion of a charge because of the technicality of
“Surely the only procedural requirement which should con-
front a Title VII complainant is the requirement that he
state, within the ninety-day period, facts sufficient to trigger
a Commission investigation. 431 F. 2d p. 462.
Sanchez continues:
“At least one district court in this circuit has addressed
itself to the question, however, and in our judgment it
responded to the question by giving the correct answer.
In King v. Georgia Power Co., N. D. Ga. 1968, 295 F.
Supp. 943, Judge Smith held that the allegations in a
judicial complaint filed pursuant to Title VII ‘may en-
compass any kind of discrimination like or related to allega-
tions contained in the charge and growing out of such
allegation during the pendency of the case before the
Commission.’ 295 F. Supp. at 947. In other words, the
‘scope’ of the judicial complaint is limited to the ‘scope’
of the EEOC investigation which can reasonably be ex-
pected to grow out of the charge of discrimination.” 431
F. 2d p. 466.
It appeared from oral argument that Defendant, although it
had received the “Notice of Charge of Employment Discrimina-
tion”, had not seen copies of the original charges filed by Plain-
tiffs with the Commission before the argument. It appeared
that they had never been requested. They were supplied to the
court and counsel the day following the argument on this
motion. The charge of Plaintiff Mari Ross states, inter alia,
“During interview for position as claims representative was
subjected to questions regarding marital situation and birth
control.” Furthermore, the Plaintiffs were required to pursue
A37
their charges through an appropriate state agency, the Pennsyl-
vania Human Relations Commission, which on July 1, 1971,
sent to Defendant a Complaint which recited, inter alia:
“The complainants further allege that female applicants,
as a condition of hire, are subjected to inquiries about
anticipated marriage and family size, while men are not
similarly evaluated as a condition of hire.”
(Aune, Deposition, Exhibition 1).
The court believes that the Representative Plaintiffs have
properly employed the administrative procedures of Title VII
which are a prerequisite to suit in the district court, they have
properly raised the issue of sex discrimination in the “terms
and conditions” of employment, that they specifically raised
allegations of discrimination in respect to marital status and
family planning sufficient to satisfy the administrative investiga-
tion requirement for raising the specific question of sex dis-
crimination in maternity leave and pregnancy disability income
policies in the present lawsuit.
As a point of departure in considering the merits of Plaintiffs’
charges of sex discrimination with respect to Defendant's ma-
ternity leave and pregnancy disability income protection policies
it might appear to the lay mind that we are treading on the
brink of a precipice of absurdity. Perhaps the admonition of
Professor Thomas Reed Powell to his law students is apt; “If
you can think of something which is inextricably related to some
other thing and not think of the other thing, you have a legal
mind.”
We are dealing with a statute enacted by the Congress of the
United States which says:
“Tt shall be unlawful employment practices for an em-
ployer—
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges
or employment, because of such individual’s . . . sex; or
A38
(2) to limit, segregate or classify his employees in any way
which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's . . .
sex.” 42 U. S. C. § 2000e—2(a).
The defendant argues that its policies with regard to maternity
leave and income protection for disability excluding pregnancy
are not sex discriminatory because pregnancy is “sui generis”
and thus subject to special treatment.
We believe that the court may take judicial notice of certain
well known facts and statistics to illustrate the problem. We
have taken our statistics from the United States Census figures
as published in the 1974 edition of the World Almanac. In
1970, according to the census figures, there were 105,000,000
women and 100,000,000 men in the United States. In 1972
there were 31,000,000 women and 51,000,000 men, sixteen
years of age and upwards, employed in the United States.
Women between the ages of fourteen through forty-four
amounted to 43.5% of the total female population or 45,675,-
000 women, which we equate with the childberaing age. There is
a necessary overlapping of the 31,000,000 women in the work
force sixteen years of age and older, and the 45,000,000 women
in the childbearing ages of fourteen to forty-four. There were
3,191,000 live births in the United States in the year ending
June 30, 1973 which produces a birth rate of about fifteen per
1,000 of total population, but a fertility rate of sixty-nine births
per 1,000 women fifteen to forty-four years of age. We recog-
nize that more precise statistics are available but we are not
concerned with minutiae and only recite these figures to illustrate
the scope of the problem. Pregnancy is a natural condition, it is
an expectable condition, it is a statistically foreseeable condition,
and ultimately it is a necessary condition. It is a condition limited
to women, not by statutory law or custom, but by biological law.
If three-eighths of our employee working force consists of
women, and their age group necessarily overlaps in large measure
the childbearing age group, pregnancy is certain to occur in a
A39
statistically expectable number of employees. We have no doubt
that a large insurance company is well aware of the precise
statistics, We further note from this case that the defendant's
recruiting policies for female technical employees in its claims
department was aimed at young women finishing their college
education, and that its promotional policy was to advance per-
sonnel within its own ranks and not draw upon outside sources.
This policy would only increase the incidence of young women
of childbearing age among the female employees of a growing
business organization such as Defendant, which hired over
2,000 new female claims representatives in a five year period.
Because pregnancy is a natural, expectable, and societally
necessary condition, which is certain to occur in a statistically
predictable number of women in the labor force, we see no
merit in Defendant's argument that it may be excluded from
equality of treatment in conditions and benefits of employment
because it is a voluntary condition. Whether voluntary or not,
it occurs with certainty and regularity. The distinction drawn
between one hiring policy for men and another for women—
each having pre-school age children—was rejected by the Su-
preme Court in Phillips v. Martin Marietta Corp., 400 U. S.
542, 544, 90 S. Ct. 496, 27 L. Ed. 613 [1971] where
there was no showing that the condition in question is a bona-
fide occupational qualification necessary to the operation of
that particular business or enterprise.
The United States Equal Employment Opportunity Com-
mission which is the administrative body created by Title VII
to administer the Act, has issued the following Guidelines with
respect to the question at issue:
§ 1604.10 Employment policies relating to pregnancy and
childbirth.
(a) A written or unwritten employment policy or practice
which excludes from employment applicants or employees
because of pregnancy is in prima facie violation of Title
VIL.
A40
(b) Disabilities caused or contributed to by pregnancy,
miscarriage, abortion, childbirth, and recovery, therefrom
are, for all job-related purposes, temporary disabilities and
should be treated as such under any health or temporary
disability insurance or sick leave plan available in con-
nection with employment. Written and unwritten employ-
- ment policies and practices involving matters such as the
commencement and duration of leave, the availability of
extensions, and accrual of seniority and other benefits or
temporary disability insurance or sick leave plan, formal
or informal, shall be applied to disability due to pregnancy
or childbirth on the same terms and conditions as they are
applied to other temporary disabilities.
(c) Where the termination of an employee who is tem-
porarily disabled is caused by an employment policy under
which insufficient or no leave is available, such a termina-
tion violates the Act if it has a disparate impact on em-
ployee of one sex and is not justified by business necessity.
29 C. F. R. Labor, Chapter XIV, Part 1604, As Amended
(As of March 31, 1972).
§ 1604.9 Fringe benefits.
(a) “Fringe benefits,” as used herein, includes medical,
hospital, accident, life insurance and retirment benefits;
profit-sharing and bonus plans; leave; and other terms,
conditions, and privileges of employment.
(b) It shall be an unlawful employment practice for an
employer to discriminate bteween men and women with
regard to fringe benefits.
29 C. F. R. idem.
We give full recognition to the principle urged upon us that
the EEOC Guidelines, 29 C. F. R. § 1604.10, effective April
5, 1972, do not have the force of law in the sense that the
“regulations” or “substantive rules” of an administrative body
authorized by statute to promulgate regulations to implement
existing law have a binding effect. We also recognize that
the Guidelines are interpretive statements of what the ad-
ministrative officer thinks the regulations mean. Gibson Wine
Co. Inc. v. Snyder, 90 U. S. App. D. C. 135, 194 F. 2d 329
A4l
[1951]. We are not compelled to follow them, but some defer-
ence is due. Espinoza v. Farah Manufacturing Co., 462 F. 2d
1331, 1335 [6th Cir. 1972].
Our own Court of Appeals states it more strongly:
~ “Such an administrative interpretation is entiled to great
deference. Griggs v. Duke Power Co., 401 U.S, 424,
433-434, 91 S. Ct. 849, 28 L. Ed. 2d 158 [1971]; Udall
v. Tallman, 380 U.S. 1, 85 S. Ct. 792, 13 L. Ed. 2d
616 [1965]. That the guideline was not promulgated until
after this suit was initiated is of no moment. Rights whch
came into being when the Act was passed are not abrogated
by administrative interpretation. Bartmess v. Drewrys
U. S. A., Inc., 444 F. 2d 1186 [C.A. 7], cert. denied, 404
U. S. 939, 92 S. Ct. 274, 30 L. Ed. 2d 252 [1971].”
“A reading of the statute convinces us that the commission’s
interpretation furthers the legislative purpose of the Act
and is consistent with the plain meaning of the language
employed.
‘Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex
stereotypes.’ Sprogis v. United Air Lines, 444 F. 2d 1194,
1198 [C.A. 7], cert. denied, 404 U.S. 991, 92 S. Ct. 536,
30 L. Ed. 2d 543 [1971].” Rosen v. Public Service Electric
and Gas Co., 477 F. 2d 90 [3rd Cir. 1973], at pp. 94-95.
The only current provision of the Defendant’s maternity leave
policy under attack is the provision that the employee who is
granted a leave of absence for maternity must return to work on
a date certain or be terminated from employment. Plaintiffs’
Complaint is zeroed in on the target that this limitation on
leave of absence for temporary disability is only applied to ma-
ternity cases. There is no such requirement for any other dis-
ability. |
Because state and local governments were exempted under
Title VII until 1972, there are few Title VII cases involving
pregnancy that give us guidelines, but the question has arisen
frequently under cases presenting claims of denial of equal pro-
tection or denial of civil rights under color of state authority.
A42
We believe that Title VII standards are more compelling on a
private employer in view of the express statutory mandate upon
employers and the absence of the question of a “rational basis”
for classification by which a state statute is measured. Dandridge
v. Williams, 397 U. S. 471, 90 S. Ct. 1153, 25 L. Ed. 2d 491
[1970]. While a fixed state policy of classification may survive
an equal protection attack it may still be violative of Title VII.
See Schattman v. Texas Employment Commission, 459 F. 2d
32 [Sth Cir. 1972], and Newmon v. Delta Airlines, Inc., 475
F. 2d 768 [Sth Cir. 1973].
A district court in the Fifth Circuit has recognized that:
“Schatiman, . . . turned upon a divided Appellate Court's
interpretation of the federal statute as it then read on the
question of its exclusion from coverage of state employers
and employees.” Vick v. Texas Employment Commission,
6 EPD 5990 [S. D. Tex. Aug. 30, 1973].
However, the Vick case found this impediment to jurisdiction
removed by the 1972 Amendment to Title VII, and proceeded
to find that the state’s denial of unemployment benefits on the
grounds that the last trimester of pregnancy rendered a woman
unavailable for work, violated the provisions of Title VII.
“While the expectancy of life confined and incident to
female pregnancy involves many delicacies of personal,
institutional and societal interest, Roe v. Wade, 410 U. S.
113 [93 S. Ct. 705, 35 L. Ed. 2d 147] 41 L. W. 4231
(January 22, 1973), such a natural and necessary female
condition cannot be a basis for categorical discrimination
in light of Phillips and its plain interpretation of Title VII
of the Act.” Vick, cit supra, 5 EPD p. 5992.
Nevertheless, we can take some guidelines from the Equal Pro-
tection Clause cases dealing with pregnancy.
Judge Brown in his dissent in Phillips v. Martin Marietta
Corp., 416 F. 2d 1257 [Sth Cir. 1969], vacated per curiam 400
U. S. 542, 91 S. Ct. 496, 27 L. Ed. 2d 613 [1972] noted with
respect to that case, where women with pre-school age children
were denied employment, but not men:
A43
“The distinguishing factor seems to be motherhood versus
fatherhood. The question then arises: Is this sex-related?
To the simple query the answer is just as simple: Nobody
—and this includes Judges, Solomonic or life tenured—
has yet seen a male mother. A mother, to oversimplify
the simplest biology, must then be a woman”. 416 F. 2d
p. 1259.
To the argument that pregnancy is a voluntary status, the
court in Buckley v. Coyle Public School System, 476 F. 2d 92
{10th Cir. 1973] says: |
“The fact, if it be a fact, that pregnancy is a voluntary
status really has nothing to do with the question. The
point is that the regulation penalizes the feminine school
teacher for being a woman and, therefore, it must be con-
demned on that ground.” 476 F. 2d at p. 95.
The Court of Appeals reversed the District Court’s dismissal and
remanded the case to the District Court for determination of a
compelling state interest to justify the regulation.
In Green v. Waterford Board of Education, 473 F. 2d 629
[2nd Cir. 1973], the Court of Appeals reversed a District Court’s
dismissal of a complaint alleging that an inflexible maternity
leave policy denied equal protection. Even though the District
Court had found a rational basis for the school board’s action,
the Court of Appeals found that the state’s interests were not
sufficiently promoted by rule to justify the arbitrary and inflex-
ible regulation applied to pregnancy as distinguished from other
disabilities.
“The heart of plaintiff's case is that disqualifying a physi-
cally capable woman from working because of a condition
related solely to her sex is unconstitutionally discrimina-
tory. Plaintiff admits the obvious, that men do not become
pregnant, but points out that men, being human, are also
subject to crises of the body, some of which, like childbirth,
give ample warning: A cataract operation or a prostatec-
tomy, for example, may be planned months ahead. Be-
cause male teachers are not forced by defendant Board
to take premature leave because of a known forthcoming
A44
medical problem, female teachers should not be treated
differently. Thus stated, the argument is persuasive, even
compelling. One realizes with a shock what so many
women now proclaim: Old accepted rules and customs
often discriminate against women in ways that have long
been taken for granted or have gone unnoticed.” (p. 634).
See also the following Equal Protection clause cases involving
maternity leave: LeFleur v. Cleveland Board of Education, 465
F. 2d 1184 [6th Cir. 1972], cert. granted 411 U. S. 947, 93
S. Ct. 1921, 36 L. Ed. 2d 408, but Cf. Cohen v. Chesterfield
County School Board, 474 F. 2d 395 [4th Cir. 1973], cert.
granted, 411 U. S. 947, 93 S. Ct. 1925, 36 L. Ed. 2d 408.
Defendant has interposed a defense of good faith reliance
upon an administrative interpretation, particularly in its defense
on the income protection exclusion policy here. This may be
a matter to consider when the questions of affirmative relief or
back pay are determined but we cannot see its application to
the immediate question of the inflexible maternity leave stand-
ard. During the period prior to the Guidelines published in
March 1972, there were no guidelines or opinions issued by the
EEOC, 42 U. S. C. § 2000e-12(b) (Sec. 713(b) of the Act)
provides that “no person shall be subject to any liability or
punishment for or on account of (1) the commission by such
person of an unlawful employment practice if he pleads and
proves that the act or commission complained of was in good
faith, in conformity with and in reliance upon any written inter-
pretation or opinion of the Commission.”
We do not believe that the various opinion letters referred to
in the brief of amicus curiae United States Chamber of Com-
merce, with respect to the inclusion of maternity benefits in an
insurance plan meet the requirements of Sec. 713; there is no
evidence that defendant relied upon them, they were not ad-
dressed to the defendant, and do not otherwise conform to the
requirements of a written opinion under which the defense of
reliance may be asserted, Local 189 United Papermakers and
A45
Paperworkers, etc. v. United States, 416 F. 2d 980 [5th Cir.
1969]; Sprogis v. United Air Lines, Inc., 444 F. 2d 1194 [7th
Cir. 1971}.
The maternity leave policy of the company which since 1970
has granted a leave of absence for six months from the last
date of work before delivery, or for three months from date of
delivery, whichever comes first, has no relation to the fitness
of any individual female to perform the functions of her job.
The defendant has not alleged, nor has it offered any
evidentiary material to establish that there is a disputed issue
of fact dependent upon a bona fide occupational qualification.
Such a bona fide occupational qualification is a defense to a
charge of discrimination where sex is a bona fide occupational
qualification reasonably necessary to the normal operation of
that particular business or enterprise. This has been narrowly
construed by the courts. In Weeks v. Southern Bell Telephone
and Telegraph Company, 408 F. 2d 228 [Sth Cir. 1969] the
Court held this must give the employer “a factual basis for be-
lieving that all or substantially all women would be unable to
perform safely and efficiently the duties of the job involved.”
In Rosenfeld v. Southern Pacific Co., 444 F. 2d 1219 [9th
Cir. 1971] the court held the exclusion of women justified only
when “the sexual characteristics of the employee are crucial to
the successful performance of the job, as they would be for the
position of a wet-nurse.” Under Rosenfeld, if one woman can
do the job the employer cannot impose a blanket rule denying
all women the opportunity.
Under the company policy any female who cannot return to
her job within three months of delivery of her child is auto-
matically terminated. No other disability is cause for such auto-
matic termination. “For a woman, however, the effects of preg-
nancy and pregnancy-related illness are debilitating in much the
same way as the physical and mental conditions that are included
within the scope of the disability insurance program.” Aiello v.
Hansen, 359 F. Supp. 792 [N. D. Cal. 1973).
A46
We conclude, as a matter of law, that the maternity leave
policy in effect in Defendant Company at the present time
and since September 1970 in the respect in which it requires a
female to return to work within three months of the date of
delivery of her child, or six months from the beginning of her
maternity leave, whichever date is earlier, or face termination
of employment, is violative of Sec. 703, of Title VII of the
Civil Rights Act of 1964, as amended, in that such policy dis-
criminates against female employees on the basis of sex.
Because only his present policy is still in existence, injunc-
tive relief as to this practice is appropriate at this time.
We further find that all prior company policies in effect
since July 2, 1965, which compelled pregnant female em-
ployees to leave employment at a fixed period of pregnancy
before delivery were likewise violative of the Act, and the com-
pany policy in effect since July 2, 1965 which denied reemploy-
ment because of pregnancy and maternity were violative of the
Act. Because these practices have ended there is no need for
injunctive relief, and the question of the intentional nature of
the violation and the appropriate relief will be considered in a
subsequent stage of these proceedings.
Some additional considerations must be weighed with
respect to plaintiffs’ claim that the Income Protection Plan of
Defendant company is discriminatory to female employees. The
Company provides its employees with a contributory insurance
plan for continuation of income for a “long term illness”, i.e. an
illness requiring treatment by a doctor of eight or more calendar
days which causes absence from work. Such “benefits are not
payable for disability due to occupational injury or to sickness
covered under Workmen’s Compensation Insurance; for disabil-
ity due to pregnancy; for a disability in excess of 104 weeks;
or for a disability during which you were not treated by a physi-
cian licensed to practice medicine.”
Pregnancy is the only disability, not within the other excep-
tions, not covered by the Income Protection Plan. Pregnancy
A47
is a condition limited to women. Conditions limited to men,
such as prostate troubles, are not excluded, nor is any exclusion
provided for a number of illnesses whose incidence among males
is greatly predominant (i.e. gout 19 to 1; the Merck Manual,
10th ed. 1961).
The brief of the United States Chamber of Commerce as
amicus curiae cites cost of the program if pregnancy were in-
cluded, as a justification for exclusion.
We must emphasize the distinction made by the Guidelines,
§ 1604.10(b) that it is “disabilities caused or contributed by
pregnancy, miscarriage, abortion, childbirth, and recovery
therefrom” which for job-related purposes are to be treated as
temporary disabilities. They do not cover leave for child rear-
ing, but only for job disability. No evidence has been presented
to us by Defendant as to the average duration of pregnancy dis-
ability. Again, we have a difficult time in freeing ourselves from
stereotype thinking. We note that the Defendant’s policy for
maternity leave prior to delivery has accommodated itself from
a fixed number of months prior to delivery to the recognition
that an employee may work prior to delivery as long as she is
able to do the job. Return to work may be made as soon after
delivery as she is able to do the job. We may assume from a
general knowledge of the conditions of life, that in the normal
or usual pregnancy, the period of disability will be relatively
short. There is nothing in this record to show, and nothing in
our general experience with life indicates that the job-related
incidence of disability for pregnancy is any greater or any less
than that for a prostatectomy.
The EEOC Guidelines provide, § 1604.9 Fringe Benefits, (¢):
“It shall not be a defense under Title VII to a charge of
sex discrimination in benefits that the cost of such bene-
fits is greater with respect to one sex than the other.
While cost may be a business purpose, and certainly to
add pregnancy disability to the insurance program will cost
more, it can only be a defense in a Title VII action where
A48
“. « « there exists an overriding legitimate business purpose
such that the practice is necessary to the safe and efficient
operation of the business. Thus, the business purpose must
be sufficiently compelling to override any racial impact,
the challenged practice must effectively carry out the busi-
ness purpose it is alleged to serve; and there must be avail-
able no acceptable alternative policies or practices which
would better accomplish the business purpose advanced,
or accomplish it equally well with a lesser differential racial
impact. (footnotes omitted.) Robinson v. Lorillard Cor-
poration, 444 F. 2d 791, 798 [4th Cir. 1971].
With respect to the argument of increased costs there is no
statutory requirement that Defendant company offer any par-
ticular disability benefits, in any specific amount, or of any
particular duration. The only requirement is that there be no
inequality based on sex. Adjustments in the benefit plan to
achieve equality are a recognized means of achieving that end.
Rosen v. Public Service Electric Co. cit supra (p. 95); Hays v.
Potlatch Forests, Inc., 465 F. 2d 1081 [10th Cir. 1972].
“The increased costs could be accommodated quite easily
by making reasonable changes in the contribution rate, the
maximum benefits allowable, and the other variable affect-
ing the solvency of the program.” Aiello v. Hansen, 359
F. Supp. 792, at p. 798 [N. D. Cal. 1973].
A final requirement for a finding of violation of Title VIT
is that the court must find that defendant “has intentionally
engaged in or is intentionally engaging in an unlawful employ-
ment practice charged in the complaint” in order to issue an
injunction or to order such affirmative action as may be appro-
priate. While we are not now concerned with any question of
relief in which the questions of back pay or reinstatement may be
considered, certain continuing policies of defendant are subject
to immediate injunctive relief, and require a finding of inten-
tional action. Defendant has raised no question of intentional
violation, except as to its defense of good faith reliance on ad-
ministrative interpretation which rwe have found insufficient:
The term “intentional” in this Act means that the Defendant
A49
intended to do what it did, not that there was a wilful and
deliberate intention to violate the law.
“ _ . intentional unfair employment practices are those
engaged in deliberately and not accidentally. No willfulness
on the part of the employer need be shown to establish a
violation of Sec. 706(g).” Kober v. Westinghouse Electric
Corp., 408 F. 2d 240, 246 [3rd Cir. 1973].
We, therefore, find that the violations of Title VII of the Act
herein charged were intentional within the terms of that statute.
We, therefore, conclude that as to the issues raised by Plain-
tiffs’ Motion for Partial Summary Judgment, there is no genuine
issue as to material fact and that summary judgment interlocu-
tory in character should be entered on those issues.
Because the evidentiary materials show that at certain times
subsequent to the effective date of the Act, or subsequent to
the filing of the administrative charge or the within Complaint
the Defendant has ceased or discontinued the discriminatory
practice, injunctive relief is not appropriate as to those practices.
Kober v. Westinghouse Elec. Co., supra, p. 250.
As to continuing practices which violate Title VII preliminary
injunctive relief at this time is appropriate.
The question of other affirmative relief for past actions is not
now before us. The Court is mandated to issue “such affirmative
relief as may be appropriate”. Kober, cit supra. This will depend
upon the evidence to be presented on the individual claims,
which may be considered at the time of trial of the “equal pay”
issue not here presented.
A50
APPENDIX D
IN THE UNITED STATES District Court
For the Western District of Pennsylvania
* * (Caption—72-169) * *
MEMORANDUM ORDER ON MOTION TO RECONSIDER
The Defendant Liberty Mutual Insurance Company has
moved the court to reconsider that portion of its Order of
January 9, 1974, that found that the Defendant's policy of re-
quiring female employees to return to work within three months
of delivery or be terminated and its policy of denying benefits of
the disability income protection plan to female employees for
any disability related to pregnancy or childbirth are violations of
Title VII of the Civil Rights Act of 1964.
Defendant brings to our attention the decision of the Northern
District of Georgia in Newmon v. Delta Air Lines, Inc., Civil
Action No. 15681, issued December 31, 1973 of which this
court was unaware at the time of its January 9, 1974 order.
We have considered that Opinion and its Findings which, in
many parts are in complete accord with the Findings of this
Court. However, we do disagree with the Finding of that court
that pregnancy is not a “disability”.
We do note that the decision in Newmon v. Delta Air Lines,
Inc. was made after a consideration of a great deal of evidentiary
material presented by both parties in that case concerning work-
ing conditions, the type of work performed, the preference of
the woman, the accessibility of a hospital, and, of course, the
possibility of complications to both mother and child in preg-
nancy cases. The court also considered whether or not the
defendant Airlines maternity leave policy was “reasonably neces-
sary to the normal oneration of the airlines business”.
AS1
The remainder of Defendant’s motion continues the argument
that it is impossible for Defendant to present any statistical
material of the cost of extending disability benefits to pregnancy
because no statistics are available. Whether such statistics are
available or not, the Defendant made no attempt to produce any
such evidence before this court. The court cannot understand
why the disability from performing work due to pregnancy or
childbirth cannot be medically determined in the same way
that disability from performing work is medically determined
in all other disability cases. For a half century or more in this
country, and for over a century in European countries, these
matters are decided in hundreds, if not thousands of cases daily.
Finally, the Defendant argues that “because employees can, in
some situations, make as much or more money by receiving
disability income it can be assumed that females on pregnancy
leave of absence will remain at home longer than normal.” The
Defendant presented absolutely no evidence to support this
argument and as a trial judge who has seen hundreds of cases
of soft tissue damage arising from the so-called “whip lash”
type of injuries which produce few observable objective symp-
toms the court sees no basis for assigning the tendency to
malinger as a sex-related characteristic. If as defendant suggests,
the employee can make as much or more money on disability
than at work be true, then the fault lies with the particular
insurance plan and not with the female sex. The motion for
reconsideration will be denied.
In its Order the court stated it would enjoin the continuance
of practices which the court found to be in violation of Title
VII. The Plaintiffs were invited to submit the form of the injunc-
tion order and the Defendant has filed Notice of Appeal and
asked for stay or any injunctive order. Under these circumstances
the court will withhold the issuance of the injunctive order and
amend the Order previously issued under the provisions of
Fed. R. Civ. P. 54(b), as follows:
A52
And now this 20th day of February, 1974, it is directed that
final judgment be entered in favor of Plaintiffs that Defendant’s
policy of requiring fe nale employees to return to work within
three months of deliv ry of a child or be terminated is in viola-
‘tion of the provisions of Title VII of the Civil Rights Act of
1964; that Defendant’s policy of denying disability income pro-
‘tection plan benefits to female employees for disabilities related
to pregnancies or childbirth are in violation of Title VII of the
Civil Rights Act of 1964 and that it is expressly directed that
Judgment be entered for the Plaintiffs upon these claims of
Plaintiffs’ Complaint; there being no just reason for delay.
.A53
APPENDIX E
UNITED STATES CouRT OF APPEALS
For the Third Circuit
No. 74-1233
SANDRA WETZEL and Mari Ross, on behalf of themselves and
all others similarly situated
Equal Opportunity Commission as amicus curiae
vs.
LipeRTY MUTUAL INSURANCE COMPANY, 4 corporation,
Appellant.
_
(D. C. Civil Rights Action No. 72-169)
Before: ALDISERT* and STALEY, Circuit Judges.
JUDGMENT ORDER.
By judgment entered February 11, 1975, this court affirmed
the judgment of the district court. 511 F. 2d 199. On March 23,
1976, the Supreme Court of the United States ordered our prior
judgment vacated and remanded with instructions to dismiss
the appeal. ........... iS ao , 44 U. S. L. W. 4350. In con-
sideration thereof, it is
* Circuit Judge Hasties was a member of the original |
which decided this case. He did not participate in the within dispo-
sition by reason of his death.
‘AS4
ADJUDGED AND ORDERED that the appeal be and the same
is hereby dismissed for want of an appealable order.
Costs taxed against appéllant:
By the Court,
. /8/, ALDISERT,
Circuit Judge
Attest: _.
/8/ M. ELtzaBETH FERGUSON,
ra Chief Deputy Clerk.
Dated: April 30, 1976.
Certified as a true copy and issued in lieu of a formal mandate
on May 24, 1976.
Test: THomas F. QuINN, Clerk.
_ Liperty MUTUAL INSURANCE
ASS
APPENDIX F
UniTEep States District Court |
Western District of Pennsylvania
SANDRA WETZEL and Marr Ross, on )
‘behalf ‘of themselves and all other
Plaintiffs,
mn | Civil Action
No. 72-169,
NOTICE OF APPEAL.
Notice is hereby given that Liberty Mutual Insurance Com-
pany, defendant above named, hereby appeals to the United
States Court of Appeals for the Third Circuit from the order
entered in this action on the 24th day of August, 1976, enjoin-
ing certain policies of the defendant on the basis that they are
violations of Title VII of the Civil Rights Act of 1964, 42
U. S. C. 2000(e) ef. seq., and denying defendants’ motion
to supplement the record.
Dated: August 30, 1976.
/s/ KALVIN M. GROVE
Kalvin M. Grove
Lederer, Fox and Grove
233 South Wacker Drive
Suite 7916
ROBERT PENNEY
175 Berkeley Street
Boston, Massachusetts 02117
Crem KYLE
4150 U. S. Steel Building
Pennsylvania 15219
Attorneys for Liberty Mutual
Insurance Company
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.