Petition — Burwell v. Eastern Air Lines, Inc.

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

Ee ae : 7

# FILED.

8 0 -§ 68 NOV 98 W989

——E

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

CATHERINE M. BURWELL, ET AL.

Petitioners,

Vv.

EASTERN AIR LINES, INC.

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

ROBERT B. WALLACE

JAY L. WESTBROOK

SURREY & MORSE

1156 15th Street, N.W.

Washingt Y od

Of Counsel: ashington, D.C. 20005

‘ Telephone:

LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW (202) 331-4000

733 15th Street, N.W.

Suite 520

Washington, D.C. 20005

Telephone:

(202) 628-6700

November 28, 1980

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Weshington, 0. C.-223-1220

QUESTIONS PRESENTED

Ra Whether plaintiffs in an em-

ployment discrimination case, who have

demonstrated a prima facie case of dis-

criminatory impact and rebutted an em-

ployer's business necessity defense by

demonstrating the existence of equally

safe and non-discriminatory alternative

policies, must also prove that the em-

ployer failed to act reasonably when

initially adopting the discriminatory

policy?

as Whether the Court of Appeals

may substitute the reasonableness

standard from Furnco Construction

Corp. v. Waters, 438 U.S. 567 (1978),

a discriminatory treatment case, for

the business necessity standard of

Moody v. Albemarle Paper Co., 422 U.S.

405 (1975), applicable in discrimina-

tory impact cases?

3 Whether Rule 52 of the Federal

Rules of Civil Procedure permits an

Appellate Court to ignore findings of

fact critical to the District Court's

holding without finding them to be

clearly erroneous?

PARTIES TO THE PROCEEDING BELOW

The parties to the proceeding in

the United States Court of Appeals for

the Fourth Circuit were Catherine M.

Burwell, Jean H. Proctor, and Sharyn D.

Clayton a cotaintites)” and

Eastern Air Lines, Inc. (appellant-

defendant).

1/ The District Court certified a

class on October 9, 1975, under Fed. R.

Civ. P. 23(b) (1) and (2), which was

defined as "all female flight attendants

employed by Eastern . .. at any time

Since Octokher 27, 1972, or who may be so

employed in the future, who are, were,

Or may in the future be subject to

Eastern's maternity leave policy."

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .... .

PARTIES TO THE PROCEEDING

BELOW

TABLE

OF CONTENTS ....« -«

OF AUTHORITIES ....

OPINIONS BELOW ..... -

JURZSUECTION «2 © s e © @

STATUTES AND REGULATIONS

INVOLVED ...+-«« «© «© « «

STATEMENT OF THE CAS&:

Background .« se «ee

The District Cour

RS a a ee er

1. Evolution of

the Policy ... »«

2. Policies Concerning

the Physical

Condition of

Flight Attendants .

3. The Medical Evidence

The Court of Appeals

DOGSEIOR « sé 8 tee 2

Table of Contents, Continued

Page

REASONS FOR GRANTING THE WRIT... 2il

ne The Decision Below is in

Direct Conflict with

Applicable Decisions of

This Court and Four Courts

ee eee ee ee eee ee

II. The Court of Appeals Mis-

applied the Burdens of

Proof Under Discrimina-

tory Impact and Dis-

criminatory Treatment Cases. . 31

III. The Court of Appeals Ig-

nored the Findings of

Fact Critical to the

District Court's Holding

Without Finding Them to

be Clearly Erroneous ..... 36

IV. The Court Should Decide

This Issue to Resolve

the Conflicting Holdings

in the Lower Courts ..... 40

CONCERN 6 8 sk a ee 8 Se Os SS

APPENDIX

A. Opinion of the

Court of Appeals .... la

Table of Contents, Continued

Page

Opinion and Order

of the District

Cee sw ee Se 6- eee

Statutes and

Regulations

SOVOLVOE 4 « «© 6 & 6

TABLE OF AUTHORITIES

CASES Page

Air Line Pilots Ass'n. v.

Western Air Lines, Inc.,

22 E.P.D. ¥ 30,636 (N.D.Cal.

1979), appeal pending ...... 43

Bantam Books, Inc. v.

Sullivan, 372 U.S. 58 (1963).

. « Son

Bianchini v. Humble Pipe

Line Co., 480 F.2d 251 (5th Cir.

Stee x 6 6S Nee ew ee ee OD

Condit v. United Air Lines,

ENG. ¢ 464 BeFebDe GF Li,zases (E.D.

Va. 1976), aff'd as not clearly

erroneous, 558 F.2d 1176

(4th Cir. 1977), cert. denied,

Gio O.8.- 906 C4070) 2 « «we es oe ell HS

EEOC v. Delta Air Lines, Inc.,

44] F. Supp. 626 (S.D.Tex.

1977), rev'd. and remanded,

6i9 7.26 Gi (atm Cif. 2900) . - ts S2n

Furnco Construction Corp.

v. Waters, 438 U.S. 567 (1978). . i,

22, 32, 33% 34n, 35

Green v. Missouri Pacific

Railroad Co., 523 F.2d 1290

(paw Us BEPOR 2 4 6 + 6 te ee BM

vil

Page

Griggs v. Duke Power Co,

SUL Ucts Gee (asta) « « « Sim, 22, 32

Harriss v. Pan American World

Airways, Inc., 437 F. Supp.

413 (N.D.Cal. 1977), appeal

I Oe ess @ oe ee ow ee BA

In re National Airlines,

Inc., 434 F. Supp. 249 (S.D.

Fla. 1977) Ere a ae eee ee eee Se Dt

International Brotherhood of

Teamsters v. United States,

; i Gl bp) ere

Maclennan v. American Airlines

Inc., 440 F. Supp. 466 (E.D.

Va. 1977) « « © « «© « «© « 20, 20n, 41

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) . . - ~ - 32, 33

Moody v. Albemarle Paper Co.,

422 U.S. 405 (1975) ... ai, 2ln, 22,

29, 30, 32, 33

Nashville Gas Co. v. Satty, 434

Sues See CaetT) ¢ se « 3 Mae: Sy 32

Palmer v. General Mills, Inc.,

513 F.2d 1040 (6th Cir. 1975) . . 22n

viil

Parson v. Kaiser Aluminum &

Chemical Corp., 575 F.2d 1274,

(th Cir. 1978), cert. denied,

a © Ree! Io) >.) mem s |

Robinson v. Lorillard, 444 F.2d

791 (4th Cir.), cert. dismissed,

ee & ae et ) A. ee

Solo Cup v. Federal Ins. Co., 619

F.2d 1178 (7th Cir. 1980) ...-.- 33

United Air Lines, Inc. v. State

Human Rights Appeal Board, 61

App. Div. 2d 1010 (2d Dept.),

appeal denied, 44 N.Y. 2d 648,

cert. denied, 439 U.S. 982

Pn mioTs 4 s6 «oe ee % + 0 & SO

United States v. Bethelem

Steel Corp., 446 F.2d 652

$ gat See pt eee ee

Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100

ue CG le tt oe lt le Ry Re

STATUTES

Title VII of the Civil Rights Act

of 1964, 78 Stat. 255, as

amended, 42 U.S.C. § 2000e,

et seg. + + + + © © © ee ee Passim

OTHER AUTHORITIES

29 C.F.R. § 1604.2(a) (1) (1979)... . 3

Fed. R. Civ. P. 52(a) ...-.-.. ii, 37

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

CATHERINE M. BURWEFUL, ET AL.

Petitioners,

Vv.

EASTERN AIR LINES, INC.

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

Petitioners pray that a Writ of Cer-

tiorari issue to review the judgment of

the United States Court of Appeals for

the Fourth Circuit in this proceeding.

OPINIONS BELOW

The per curiam, dissenting, and

concurring opinions of the Court of

Appeals (en banc) are not yet officially

reported but are unofficially reported at

23 F.E.P. Cases 949 and appear in Ap-

pendix A hereto (pp. la-105a, infra).

The Memorandum Opinion and Order of the

United States District Court for the

Eastern District of Virginia (by Judge

Robert H. Merhige) is reported at 458 F.

Supp. 474 and appears in Appendix B

hereto (pp. 106a-249a, infra).

JURISDICTION

The judgment of the Court of Appeals

was entered on August 29, 1980. The

jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

Sections 703(a) and (e) (1) of Title

VII of the Civil Rights Act of 1964, 78

Stat. 255, as amended by the Equal

Employment Opportunity Act of 1972, 86

Stat. 103, 42 U.S.C. §§ 2000e-2(a) and

(e) (1) (1970 and Supp. V. 1975), and

Section 1604.2(a)(1) of the Equal Em-

ployment Opportunity Commission Guide-

lines on Discrimination Because of

Sex, 29 C.F.R. § 1604.2(a) (1) (1979),

appear in Appendix C hereto (pp. 250a-

252a, infra.).

STATEMENT OF THE CASE

A. Background

Petitioners, flight attendants em-

ployed by Eastern Air Lines, Inc. ("Eas-

tern"), brought this action against

Eastern pursuant to § 703(a) of Title VII

of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 20000~24a) .-”

Petitioners sought declaratory, injunc-

tive, and monetary relief to redress the

2/ Petitioners Burwell and Proctor

brought their action in the United

States District Court for the Eastern

District of Virginia. A suit brought

subsequently by petitioner Clayton in the

Northern District of Alabama, challenging

the same policies, was transferred to the

Eastern District and the actions con-

solidated. A class, described in p.

ii n.1l, supra, was certified on Octo-

ber 9, 1975.

discriminatory effects of certain aspects

of Eastern's maternity leave policies.

Petitioners alleged that Eastern

violated § 703 (a) of Title VII by requi-

ring, inter alia, an immediate leave of ap-

sence, without pay, upon a flight atten-

dant's knowledge of her pregnancy.

The District Court found that

petitioners proved a prima facie case of

discrimination by showing that Eastern's

mandatory maternity leave policy had a

discriminatory effect on women. The

Court also found that Eastern's justi-

fication for the policy (its concern for

the safety of the flight attendant and

the passengers) was unsupported by the

medical evidence, expert testimony,

Eastern's lackadaisical attitude toward

the physical condition of its employees,

and the existence of a less discriminatory

policy approved by the Mayo Clinic and

successfully used by .Jortimwest Airlines

since 1973. The District Court held that

Eastern had failed to justify its discri-

minatory policy as either a bona fide

occupational qualification or by business

necessity. The Court also found that

petitioners had established a less discri-

minatory and equally safe alternative and

had demonstrated that Eastern's professed

safety defense was merely a pretext for

invidious discrimination.

The District Court enjoined Eastern

from requiring, inter alia, a forced

maternity leave prior to the twenty-

eighth week of gestation, unless it could

be shown that an individual flight

attendant was unable to perform her

duties. Eastern appealed to the United

States Court of Appeals for the Fourth

Circuit which, sitting en banc: (a)

affirmed by a vote of 6 to 3 the District

Court's enjoining of Eastern's forced

Maternity leave policy for the first

thirteen weeks of pregnancy and (b)

reversed, by a vote of 5 to 4 the Dis-

trict Court's holding that Eastern must

evaluate on an individual basis the

ability of each flight attendant to

perform her duties between the thir-

teenth and twenty-eighth week of her

pregnancy. This petition for certiorari

is confined to the Court of Appeals'

holding with respect to (b) above.

B. The District Court Decision

The District Court found that preg-

nancy was the only health-related condi-

tion that automatically disqualifies

Eastern's flight attendants from work

App. B at 139a. In all other in-

stances, the decision as to whether a

flight attendant was in sufficiently good

health to perform his or her duties was

left to the good judgment of each

flight attendant; and individuals with

non-pregnancy related health problems

were evaluated individually. Id. at

140a-4la. The Court concluded that

(1) since pregnancy was confined to

women, it followed that only women were

automatically and involuntarily precluded

from work due to a physical condition;

and (2) that Eastern's mandatory

maternity leave policy "imposed on

women a substantial burden that men

need not suffer." The Court held

that a prima facie case of sex discrimi-

nation, and thus a violation of Title

VII, had been established but that

Eastern could attempt to justify its

policy under either the § 703(e) bona

fide occupational qualification stan-

dard or the "business necessity stan-

dard." Id. at 197a-98a.

Eastern attempted to justify the

policy under both standards by asserting

3/ Nashville Gas Co. v. Satty, 434

U.S. 136, 142 (1977). App. B at 197a.

that it was necessary: (1) to protect the

health and welfare of pregnant flight

attendants and their unborn chiildren and

(2) for passenger safety. Id. at 20la.

The Court's ultimate assessment of

Eastern's defenses was premised on volu-

minous factual findings adduced from the

evidence page Oe trial, which are

summarized below: _

Le Evolution of the Policy

The District Court and the Appellate

Court agreed that Eastern's maternity

leave policy evolved from a history of

sex discrimination. App. A at 49a;

4/ Since both the District Court and

Court of Appeals agreed that respondent's

policy could not be justified on the

basis of concern tor the health of the

flight attendant and child, the summary

excludes the findings relevant to that

issue.

5/ Until the mid-1960's, only Eastern's

female flight attendants were fired if

they married. Eastern also refused to

hire married flight attendants until

1973, a policy which had an impact on

women primarily since Eastern hired only

Footnote contiiucu on following paye.

App. B at 219a. The policy itself devel-

oped over time, from automatic termi-

nation without reinstatement rights

(1931-1965), to the policy of mandatory

leave without pay upon knowledge of

pregnancy (March 21, is7ey App. B at

114a-15a. Maternity leave was the only

mandatory leave without pay and pregnancy

the only physical condition which auto-

matically precluded Eastern flight atten-

dants from flying. Id. at 139a. Al-

Footnote 5 continued from previous page--

women as flight attendants from the late

1950's until the early 1970's. App. B

at 1ll4a.

6/ On April 12, 1974 in connection with

the settlement of Healen v. Eastern Air

Lines, Inc., Civil Action No. 1897 (N.D.

Ga.), Eastern agreed to restore seniority

to any female flight attendant whose sen-

iority had been adversely affected as a

result of maternity leave occurring prior

to July 1, 1972. App. B at 115a-16a.

7/ As indicated above, the decision as

to whether a flight attendant was in

Footnote continued on following page.

though aware that other airlines (North-

west and Air Canada) operated safely with

less restrictive policies, Eastern never

evaluated the feasibility of adminis-

tering the policy on an individual basis

and, prior to its preparation for trial,

never sought or received any professional

or expert opinions concerning the ability

of a pregnant flight attendant to con-

tinue to perform her duties. Id. at 139a-

40a, 210a-lla.

2. Policies Concerning the Physical

Condition of Flight Attendants

The Court found that Eastern's gen-

eral practices concerning the physical

condition of its flight attendants con-

Footnote 7 continued from previous page--

sufficiently good health to fly was left

to the good sense of the individual

flight attendant, with pregnancy being

the sole exception. The testimony at

trial indicated that the large majority

of Eastern's flight attendants removed

themselves from flight status if they

felt physically unable to perform.

App. B at 140a-4la.

trasted sharply with its pregnancy policy.

Except for that policy, Eastern had no

written guidelines as to when a flight

attendant should not fly because of

physical difficulty. There were no

periodic physical examinations and no

procedures for determining whether a

flight attendant was in sufficiently good

health to work a particular cligne.”

Id. at 140a.

The Court also found that Eastern

made virtually no effort to police its

maternity leave policy. Voluntary re-

porting and visual detection were the

only methods relied on for enforcement.

Eastern never disciplined a flight atten-

dant who continued to fly after knowledge

8/ Effective December 4, 1975, flight

attendants with diabetes controlled by

insulin, and certain epileptic flight

attendants, have been permitted to fly

despite evidence that such flight atten-

Footnote continued on following page.

of pregnancy although it was common

knowledge that most Eastern flight atten-

dants continued to work through at least

the first trimester and many, including

petitioners, continued flying through

the fifth month. Id. at 140a, 142a-43a.

3 The Medical Evidence

The medical experts agreed that

pregnancy, in the vast majority of in-

stances, was an entirely healthy condi-

tion which became disabling only near

the commencement of labor. Id. at 144a.

The common side-effects of pregnancy

(morning sickness, fatigue, and fainting)

are associated primarily with the very

early or late stages of pregnancy. Id.

at 166a.

Footnote 8 continued from previous page--

dants are more likely to be rendered un-

able to perform their duties than preg-

nant flight attendants. App. B at

139a.

Eastern's own Medical Director (in

a letter to Eastern's General Coun-

sel) expressed agreement with American

Airlines' plan to permit flight atten-

dants to work during the first tri-

mester "since the reasons for denial for

medical and/or safety considerations

during this period . . . are rather weak

if at all present." id. at 162a n.3.

The experts agreed that miscar-

riages were preceded by obvious symp-

toms and that a flight attendant with no

symptoms prior to boarding a six-eight

hour flight had little chance of mis-

carrying prior to completing it. Id.

at 157a, 211-12a. Moreover, 90 percent

of all miscarriages occur during the first

twelve weeks, a period during which

Eastern's pregnant flight attendants

had been flying routinely. Id. at

9/ The record reflected no instance

Footnote continued on following page.

157a, 210a.

Petitioners' experts testified that

flight attendants experiencing normal

pregnancies could perform normal and

emergency duties without difficulty

through the twentieth week, with the

limiting factor being increased girth

and abdominal expansion (resulting in

limited agility). Id. at 164a-65a.

Prior to the twentieth week such

changes are insignificant; after. the

twentieth week, the rate of growth

varies among individuals but is both

observable and measurable. Id. at

15la, 21l6a.

Footnote 9 continued from previous page--

where a flight attendant miscarried

during a flight or was rendered unable to

perform her duties during a flight by the

symptoms of miscarriage. App. B at 210a.

Three Eastern flight attendants did

remove themselves from duty either before

or after the conclusion of a flight

because they were experiencing miscar-

riage symptoms.

The opinions of petitioners'

experts were confirmed by the Obstet-

rics and Gynecology Department of the

Mayo Clinic and implemented by the Medi-

cal Director of Northwest Airlines who

was also Director of Preventive Medi-

cine of the Mayo Clinic. It was the

Mayo Clinic's consensus that during the

first trimester (and for several weeks

beyond) a flight attendant could perform

all her duties without difficulty; and

that during the second trimester a flight

attendant's ability to perform varied

among individuals. Id. at 167a. The

consensus formed the basis for the mater-

nity policy adopted by Northwest which

permits a pregnant flight attendant to

work as long as she is fit and able

up to the twenty-eighth week but which

requires her, during the fifth month

and each month thereafter, to sub-

mit a doctor's statement certifying

that she is able to perform her assigned

duties. Id. at 167a. Northwest has

experienced no operational problems re-

lated to pregnancy whatsoever since a-

dopting the policy in 1973. App. B at

167a-68a, 210-2lla. As such, the Court

found that the Northwest experience

served as empirical verification of the

position of the petitioners' experts and

of the existence of a viable, less

restrictive policy alternative. Id. at

168a, 208a-09a. The Court also found

that the Federal Aviation Administration

("FAA"), which promulgates extensive

safety regulations applicable to com-

mercial airlines, did not require manda-

tory maternity leave for pregnant flight

attendants. Id. at 220-2la. The Court

concluded that for the first twenty weeks,

a pregnant flight attendant without

complications could perform her duties

as well as she could non-pregnant; that

5 17

between the twentieth and twenty-eighth

week, when abdominal expansion occurred

at individual (and identifiable) rates,

the ability to work “is very much an in-

dividual matter"; and that as of the

twenty-eighth week, "virtually all flight

attendants should discontinue work."

Id. at 2l3a-l6a.

+ * *

On the basis of these findings, and

using the formulation of business neces-

sity first set forth in Robinson v.

Lorillard, 444 F.2d 791, 798 (4th Cir.),

cert. dismissed, 404 U.S. 1006 (1971),

the District Court found that Eastern's

mandatory maternity leave policy was not

justified by the business necessity ex-

ception to § 703(a) of Title VII. Id.

at 200a-04a.

The District Court also considered

Eastern's policy in light of the bona

fide occupational qualification set forth

in § 703(e) of Title VII and found the

facts inadequate to support that defense

prior to the twenty-eighth week of preg-

nancy and on flights of less than six

hours duration. Id. at 207a-09a, 213a

n.14, 215. Moreover, against the back-

ground of Eastern's history of sex

discrimination, failure to enforce the

leave policy, lax approach to flight

attendant physical fitness generally, a

"medical defense . . . assembled after

the commencement of litigation", and “the

severity of the exclusion for pregnancy

compared to sex-neutral physical in-

firmities", the Court found Eastern's

safety rationale for the policy to be "a

mere pretext for invidious discrimination

against women". Id. at 22la-25a.

The Court enjoined respondent from

enforcing the mandatory maternity leave

policy found violative of Title VII and,

until an appropriate new policy was put

into effect, ordered the parties to

adhere to an interim policy devised by

10/

the Court.

The Court of Appeals Decision

Respondent's appeal of the District

Court's rulings on both its mandatory mat-

ernity leave and ground transfer policies

was heard initially by a three-member panel

of the Fourth Circuit. Prior to the

hearing, respondent amended the record by

filing a copy of a new "interim" mater-

nity leave policy which it had adopted

effective April 20, 1979. Respondent's

new policy permits pregnant flight

attendants to continue flight duties

10/ The District Court's interim policy

provided that during the first thir-

teen weeks, flight duty should be en-

tirely the choice of the flight atten-

dant; from thirteen to twenty weeks,

Eastern could require monthly written

permission from her doctor; from twenty

to twenty-eight weeks, flight duty could

be conditioned on weekly permission from

her doctor; and all flight attendants

could be prohibited from flying after

the twenty-eighth week. Id. at 239a-4la.

as long as their physicians certify

their ability to work. App. A

at 70a. As such, it is less restrictive

than the "interim policy" developed

by the District Court, which had been

stayed pending the appeal.

Following the hearing before the

three-member panel, the case was re-set,

sua sponte, for a hearing en banc with

the appeal in Maclennan v. American

Airlines, Inc., 440 F. Supp. 466 (E.D.

127

Va. 1977).

The Fourth Circuit reversed that

portion of the District Court's ruling

1l/ In addition, pregnant flight atten-

dants are afforded the sick leave and

disability benefits made available

under the new policy only if their phy-

Sicians certify that they are unable

to work. A pregnant flight attendant

who removes herself from flight status

before that time most go on unpaid

leave. App. A at 70a-7la.

12/ The Maclennan case was settled prior

to the hearing en banc and thus, only

the instant casé was heard.

which invalidated respondent's manda-

tory maternity leave policy between the

twentieth and twenty-eighth week of

pregnancy. App. A at 3a.

REASONS FOR GRANTING THE WRIT

The judgment of the Court of Appeals

is in direct conflict with the decisions

of this Court, and the Second, Fifth,

Sixth, and Eighth Circuits, in holding

that an employer's policy which consti-

tuted a prima facie case of discriminatory

impact was neverthele: s justified as a

business necessity even though petitioners

demonstrated the existence of equally

13/

safe, less discriminatory alternatives.

13/ Griggs v. Duke Power Co., 401

U.S. 424, 431-32 (1971); Moody v. Al-

bemarle Paper Co., 422 U.S. 405, 435

(1975); United States v. Bethlehem

Steel Corp., 446 F.2d 652, 662 (2d Cir.

1971); Parson v. Kaiser Aluminum &

Chemical Corp., 575 F.2d 1274, 1389

(5th Cir. 1978), cert. denied, 441 U.S.

Footnote continued on following page.

The Court also held that a plaintiff, in

establishing that a policy constitutes a

pretext for discrimination, must show it

was a pretext when first adopted rather

than at time of trial.

The judgment below misapplied the

standards of proof applicable to a

prima facie case of disparate impact.

Griggs v. Duke Power Co., supra, and

Moody v. Albemarle Paper Co., supra,

by evaluating the lawfulness of res-

pondent's policy on the basis of

whether it met the standard of rea-

sonableness applicable in a case of

discriminatory treatment. Furnco

Construction Co. v. Waters, supra.

The Court of Appeals misapplied

Footnote 13 continued from previous page--

210 (1979); Palmer v. Generel Mills,

Inc., 513 F.2d 1040, 1043-44 (6th Cir.

1975); Green v. Missouri Pacific Rail-

road Co., 523 F.2d 1290, 1298 (8th Cir.

1975).

the clearly erroneous standard in over-

turning the District Court's finding

that pregnant flight attendants who may

have disabling problems n be identified

ahead of time. Zenith Rudio Corp. v.

Hazeltine Research, Inc., 395 U.S.

100, 123 (1969). It erred also in ig-

noring findings of fact about alter-

native maternity leave policies which

were central to the District Court's

holding.

The lower courts considering manda-

tory maternity leave for flight attendants

have reached contradictory results, there-

fore exposing the flight attendants to

contradictory rules in different juris-

dicv.ions and on different airlines.

Compare e.g. In re National Airlines, Inc.,

434 F. Supp. 249 (S.D.Fla. 1977) and

Harriss v. Pan American World Airways,

Inc., 437 F. Supp. 413 (N.D.Cal. 1977)

appeal pending.

The Court of Appeals has decided an

extremely important question of federal

law by substantially altering the burdens

of proof in Title VII cases involving

prima facie proof of discriminatory

impact. While the facts of this case are

limited to the lawfulness of respondent's

forced maternity leave policy, a question

that has not been decided by this Court,

the reasoning of the judgment has a

demonstrable effect on all Title VII.

This Court, in its recent opinions, has

discussed the applicable burdens in

disparate treatment and impact cases and

has alluded to plaintiffs' right to es-

tablish pretext but has not set forth the

difference between establishing pretext

in disparate treatment and impact cases.

If the judgment of the Court of Appeals

is allowed to stand, a decade and a half

of carefully developed case law will be

for naught. Irrespective of the

severity of the discrimination, employers

will need only demonstrate that they acted

reasonably at the time they instituted the

challenged policy. Even if plaintiffs

show the existence of equally safe and

less discriminatory alternatives in the

industry, the employer can avoid liability

by the incantation that the Court's

consideration of such alternatives con-

stitutes judicial interference in the

employer's business.

Finally, if the Court of Appeals

correctly assumes that policies which

deprive pregnant women of a right to earn

their livelihood allows the employer to

meet a lesser burden than in race or

other sex discrimination cases, then this

Court should resolve that question once

and for all.

# The Decision Below is in Direct

Conflict with Applicable Decisions

of this Court and Four Courts of

Appeals

This Court and the Second, Fifth,

Sixth, and Eighth Circuits have held

that a policy which is demonstrably

discriminatory in impact must (a) foster

safety and efficiency, (b) be essential

to that goal, and (c) there must be

no acceptable alternative that will

accomplish that goal equally well

with a lesser differential impact”

Both the District and Appellate Courts

agreed that respondent's policy of not

allowing pregnant flight attendants the

opportunity to work at all during their

pregnancy, while imposing no such re-

striction on any other physical con-

dition, discriminated against women,

Nashville Gas Co. v. Satty, 434 U.S. 136

14/ See p. 21n.13, supra.

(1977), and was unsupported as a business

necessity during the first thirteen weeks

of pregnancy. The Court of Appeals,

however, found that for the period of

pregnancy between the thirteenth and

twenty-eighth week, the policy was

necessary to assure passenger safety. The

Court granted judgment to the employer on

this issue even though it had met

only (a) and (b) of the business necessity

test set forth above. It did not consider

petitioners' evidence that there was an

alternative, non-discriminatory policy

which can assure passenger safety equally

well.

The District Court found that based

on the advice of the Mayo Clinic staff,

Northwest Airlines has, since 1973, suc-

cessfully employed a policy permitting

pregnant flight attendants to work through

the second trimester. Northwest's pregnancy

leave policy based on individual deter-

mination has worked without any difficulty

whatsoever. App. B 167a-68a, 210a-lla.

In addition, Eastern's own new

"interim" policy, which permits pregnant

flight attendants to continue working as

long as their own doctors or Eastern's

Medical Department certify their capa-

bility, undercuts its safety-based busi-

ness necessity defense and, like the

similar Northwest policy, indicates that a

workable, less discriminatory alternative

based on individual evaluation is and was

always available. The adoption of the new

policy, which was also ignored in the

Court of Appeals' majority opinion, "further

Supports the district court's conclusion

that the mandatory ban of all pregnant

stewardesses was not a business neces-

sity." App. A at 70a-7la (Butzner J.,

15/

dissenting). The Court of Appeals did

157 This interim policy, adopted im-

Footnote continued on following page.

not even mention these less discriminatory

alternatives and certainly did not find

them clearly erroneous. As the dissenting

opinion notes, "[t]he most comprehensive

empirical evidence in the record about the

routine operation of an airline that does

not have a mandatory pregnancy leave

policy fully sustains the district court."

App. A at 6la.

By failing to consider the less

discriminatory alternatives presented by

the petitioners, the Court of Appeals

omitted a critical element of the business

necessity test as set forth in Moody

v. Albemarle Paper Co., supra and

16 /

Robinson v. Lorillard Corp., supra.

Footnote 15 continued from previous page--

mediately after amendments to Title VII

requiring the payment of sick leave and

disability benefits to individuals on

pregnancy leave became effective, under-

scores petitioners' contention at trial

that Eastern's basis for continuing the

forced leave policy was economics, not

safety.

16/ See p. 26, supra.

The Court of Appeals' decision in this

case is, therefore, directly and

squarely in conflict with this Court's

holding in Moody v. Albemarle Paper

Co., Supra, and the decisions of the

Second, Fifth, Sixth, and Eighth

Circuits.

The Court of Appeals also found

that the adequacy of the business neces-

sity defense depends on whether "at

the time it designed the controverted

policy . . . all information available

to the employer reasonably require[d]

[its adoption]," irrespective of "whether

[the] underlying assumption is ultimately

proved to be correct." (Emphasis

supplied). App. A at 53a-54a. This time

analysis may be appropriate in a dis-

parate treatment case where there is no

discrimination against a protected class

and motive is an essential element, but it

has no place in a disparate impact case.

The Fourth Circuit's determination that a

discriminatory policy may be continued if

it was reasonable when first adopted is in

direct conflict with the Second Circuit's

holding that "if the legitimate ends of

safety and efficiency can be served by a

reasonably available alternative system

with less discriminatory effects, then the

present policies may not be continued."

United States v. Bethlehem Steel Corp.,

Supra, 446 F.2d at 662.

II. The Court of Appeals Misapplied

the Burdens of Proof Under Dis

criminatory Impact and Discrimin-:

atory Treatment Cases

The Court of Appeals, in addition to

omitting a critical element of the business

necessity test, permitted Eastern to meet

its burden of proof by showing that it

acted reasonably in adopting its mandatory

maternity leave policy. This lenient

standard imposed by the Court of Appeals

has been applied only in discriminatory

treatment cases where there is an absence

of invidious discrimination against a

protected class. Petitioners submit that

the decisions of this Court establishing

differing standards of proof in discrimi-

natory impact and treatment cases demon-

strate that a reasonableness standard has

no place in a discriminatory impact case.

Compare Griggs v. Duke Power Co., supra;

Moody v. Albemarle Paper Co., supra; and

Nashville Gas Co. v. Satty, supra with

McDonnell Douglas Corp. v. Green, 4ll U.S.

792 (1973) and Furnco Construction

Corp. v. Waters, Supra.

In the discriminatory impact case

there are two defenses available: busi-

ness necessity and § 703(e) of the

statute. In the discriminatory treat-

ment case the defendant must only show

that his actions are reasonable. Ina

discriminatory impact case the plaintiff

may rebut a successful business necessity

defense if he can show that the defendant

intended to discriminate against him.

The plaintiff is also free to rebut the

defense by showing that there is a less

discriminatory alternative which would

accomplish defendant's stated business

purpose equally well, thereby demon-

strating that defendant's stated reason

for the policy was pretextual. Moody

v. Albemarle Paper Co., supra.

In contrast, the plaintiff ina

discriminatory treatment case may re-

but defendant's reasonableness defense

by either showing that it intended to

discriminate against him or proving that

the stated non-discriminatory reason

was a sham. McDonnell Douglas Corp.

v. Green, supra; Furnco Construction

Corp. v. Waters, supra. "([P]roof of

discriminatory motive is critical in

a disparate treatment action." Solo

Cup v. Federal Ins. Co., 619 F.2d 1178,

1186 (7th Cir. 1980); International

Brotherhood of Teamsters v. United

17/

States, 431 U.S. 324, 335-36 n.15 (1977).

The Court of Appeals incorrectly

held that in a discriminatory impact case,

all that defendants need demonstrate is a

rational basis for the policy. The no-

tion of rational basis is exclusively

limited to cases of discriminatory treat-

ment. As Judge Butzner noted in his dis-

sent, when a prima facie case of dis-

criminatory impact has been established,

the incantation of "a rational justifica-

tion for the policy is not enough." App.

A at 56a. The Court must consider suit-

able alternatives, and when acceptable al-

ternatives exist, it cannot be said that

17/ A showing of a less discriminatory

alternative which would establish pretext

in an impact case, is merely interference

by the Court in the employer's business

practices if the case is one of disparate

treatment. Furnco Construction Corp. v.

Waters, supra.

the employer's policies, though job

related, are "necessary." Robinson v.

Lorillard Corp., supra, 444 F.2d at 798

n.7.

The Court's erroneous application of

the reasonableness standard was based upon

a totally inaccurate assumption that this

Court's statement that "Courts are gen-

erally less competent than employers to

reconstruct business practices", Furnco

Construction Corp. v. Waters, 438 U.S.

at 578 (emphasis added), was intended to

limit the District Court's evaluation of

the existence of equally safe, less dis-

criminatory alternatives under the busi-

ness necessity test.

Petitioners submit that the ad-

monition in Furnco was not intended

to weaken the business necessity test

but rather applies in discriminatory

treatment cases as a limitation on

unfettered theorization regarding

possible alternative and less dis-

18/

criminatory employment practices.

III. The Court of Appeals Ignored

the Findings of Fact Critical

to the District Court's Holding

Without Finding Them to

be Clearly Erroneous

The Court of Appeals held that the

trial court was clearly wrong in its

finding that pregnant flight attendants

who may have disabling problems can be

uniformly identified prior to the onset

of such incidents. App. A at 24a-25a.

The Court based its holding on the

grounds that "(t]here is very little, if

any, evidence to support that finding."

18/ As demonstrated by a comparison of

the standards set forth in discrimina-

tory impact and discriminatory treat-

ment cases, an employer need only show

he acted reasonably and has no obligation

to satisfy any of the elements of the

business necessity test in a case of

discriminatory treatment. See

discussion supra at pp. 32-34.

In fact, there is a great deal of

evidence to support the District Court's

finding, and the Court of Appeals vio-

lated the clearly erroneous standard for

appellate review of findings of fact.

Fed. R. Civ. P. 52(a). The District

Court found that (i) a "great prepon-

derance of evidence reflects ... that

at any given time during an individual

woman's pregnancy, the onset of a mis-

Carriage or premature delivery is pre-

dictable prior to the actual disablement."

App. B at 212a; (ii) warning symptoms,

such as spotting and bleeding, allow for

prediction "with considerable accuracy."

Id. at 15/7a, 168a, 212a; (iii) in-

creased girth and abdominal expansion

are the factors which limit ability to

perform during the twentieth through

twenty-eighth weeks of a normal preg-

nancy, and those factors are both

measurable and readily identifiable.

Id. at 164a-65a, 215a-l6a; (iv) North-

west Airlines' policy, based on in-

dividualized determination, has worked

"without any difficulty whatsoever."

Id. at 167a-68a, 210a-lla; and (v)

"the Northwest experience thus

serves as empirical verification of the

position of the plaintiffs' experts."

Id. at 168a.

There was no finding that would

support the Court of Appeals' reversal.

Under the clearly erroneous standard,

the Court may not reverse a finding

merely because it may doubt its cor-

rectness; it may only reverse when it

has "the definite and firm conviction

that a mistake has been committed."

Zenith Radio Corp. v. Hazeltine Research,

Inc., 395 U.S. 100, 123 (1969). The

standard is not simply whether the

appellate court would have found other-

wise but whether the trial court could

permissibly find as it did. See

Bianchini v. Humble Pipe Line Co., 480

F.2d 251, 253 (5th Cir. 1973). Judged

by these standards, the Court of Appeals

misapplied the clearly erroneous test in

disregarding the finding that individu-

alized determinations of potential

disability can be made.

In addition, the Court of Appeals

simply ignored findings of fact made by

the District Court which were central to

its conclusions of law. The Court

neither reversed them as clearly er-

erroneous nor did it allude to them other-

wise. The Northwest Airlines' policy

and Eastern's own new interim policy

both undercut Eastern's pretextual

safety defense, App. A at 56a, 6la-

62a (J. Butzner, dissenting), yet the

Court of Appeals refused even to men-

tion, let alone consider, these po-

licies and their importance to the

District Court's rejection of the

business necessity test. See App.

B at 210a-lla.

The Court of Appeals may not thus

arbitrarily ignore critical oo of

fact made by the lower court. See

Zenith Radio Corp. v. Hazeltine Research,

Inc., supra.

IV. The Court Should Decide This

Issue to Resolve the Conflict-

ing Holdings in the Lower

Courts

The importance of the question pre-

sented to this Court is heightened by the

numerous suits pending in the federal

19/ This Court noted in Bantam Books

Inc. v. Sullivan, 372 U.S. 58, 68 (1963)

that a finding amply supported by the

record binds the Court.

courts which have challenged the policy

of mandatory leave upon knowledge of

pregnancy. The lower courts have reached

contradictory results "impossible to

reconcile." App. A at 28a.

Two cases have held that a pregnant

flight attendant may work well into the

second trimester. Thus, in In re

National Airlines, Inc., 434 F. Supp.

249 (S.D. Fla. 1977), the Court re-

jected the bfoq defense as inappli-

cable to the first twenty weeks of

pregnancy.

In Maclennan v. American Airlines,

Inc., 440 F. Supp. 466 (E.D. Va. 1977),

the Court held that mandatory pregnancy

leave prior to the 26th week of preg-

nancy was invalid. The Court rejected

a bfoq defense and rejected American's

safety rationale. Id. at 472. It

noted that Federal Aviation Administra-

tion ("FAA") regulations which "deal

extensively with all aspects of the

qualifications for flight crew members"

had only minimal requirements for flight

attendants and that the FAA had taken

the position that "whether a pregnant

flight attendant should fly is a matter

between herself, her doctor, and her

employer." Id. at 471. This case has

20/

been settled.

In contrast, the lower courts have

upheld mandatory maternity leave po-

21/

licies in three cases. Harriss v.

20/ Another case striking mandatory

maternity leave policies is United

Air Lines, Inc. v. State Human Rights

Appeal Board, 61 App. Div.2d 1010 (2d

Dept.), appeal denied, 44 N.Y.2d 648,

cert. denied, 439 U.S. 982 (1978).

21/ In EEOC v. Delta Air Lines, Inc.,

441 F. Supp. 626 (S.D. Tex. 1977) rev'd

and remanded, 619 F.2d 81 (5th Cir. 1980)

the trial court's grant of summary judg-

ment in favor of mandatory maternity

leave was reversed on procedural grounds.

Pan American World Airways, Inc., 437

F. Supp. 413 (N.D. Cal. 1977) appeal

pending; Air Line Pilots Ass'n v.

Western Air Lines, Inc., 22 E.P.D.

4 20,636 (N.D. Cal. 1979) appeal

pending; and Condit v. United Air

Lines, Inc., 12 E.P.D. ¥ 11,195 (E.D.

Va. 1976), aff'd as not clearly er-

roneous, 558 F.2d 1176 (4th Cir. 1977),

cert. denied, 435 U.S. 934 (1978).

Within the Fourth Circuit, there

is inconsistency as to which defense --

business necessity or bfog -- should

apply to a prima facie case of dis-

parate impact discrimination. In the

present case, the Court of Appeals

held that the business necessity

defense was the only one applicable

to a case of disparate impact discrim-

ination. App. A at 37a-38a. Yet in

Condit v. United Air Lines, Inc., supra,

the same circuit affirmed a bfoq de-

fense finding as not clearly erroneous.

The confusion generated by the

Fourth Circuit in switching appropriate

defenses has now been compounded by inter-

mingling the standards set forth by this

Court in judging discriminatory impact

and treatment cases.

CONCLUSION

For reasons stated, the petition

for a writ of certiorari should be

granted.

Respectfully submitted,

Robert B. Wallace

Jay L. Westbrook

Surrey & Morse

1156 15th Street, N.W.

Washington, D.C. 20005

(202) 331-4000

APPENDIX A

NOTICE

This opinion is subject to further

editing and modification. The final ver-

sion will appear in the bound volume of

the official reports.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 78-1659

CATHERINE M. BURWELL, et al.,

Appellees,

Vv.

EASTERN AIR LINES, INC.,

Appellant.

Appeal from the United States District

Court for the Eastern District of Vir-

ginia, Richmond Division. Robert R.

Merhige, Jr., District Judge.

Argued: October 2, 1979

Decided: August 29, 1980

*Petitioners have reprinted the opin-

ion of the United States Court of Appeals

for the Fourth Circuit as originally

circulated by that Court.

Before HAYNSWORTH, Chief Judge, WINTER,

BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS,

MURNAGHAN and SPROUSE, Circuit Judges.

Paul M. Thompson (Christine H. Perdue,

A.W. VanderMeer, Jr., Hunton & Williams;

William G. Bell, Richard P. Magurno,

Eastern Air Lines, Inc. on brief) for

Appellant; Jay L. Westbrook (Robert B.

Wallace, Surrey, Karaski [sic] and Morse;

David R. Cashdan; Stephen L. Spitz,

Lawyers' Committee for Civil Rights Under

Law on brief) for Appellees; (Issie L.

Jenkins, Acting General Counsel, Joseph

T. Eddins, Associate General Counsel,

Beatrice Rosenberg, Assistant General

Counsel, Vincent Blackwood on brief) for

Amicus Curiae Equal Employment Oppor-

tunity Commission.

PER CURIAM:

This appeal raises several issues.

For reasons set forth in the accompany-

ing three opinions, the court has decided

them as follows:

Le The court unanimously affirms

that part of the district court's judg-

ment that invalidated Eastern Airline's

policy requiring pregnant stewardesses to

forfeit seniority when they transfer to

ground positions.

2. A majority of the court affirms

that part of the district court's judgment

that invalidated Eastern's mandatory

pregnancy leave policy for stewardesses

during the first 13 weeks of pregnancy.

Three judges dissent on this issue.

3 A majority of the court re-

verses that part of the district court's

judgment that invalidated Eastern's man-

datory leave policy between the 13th and

28th weeks of pregnancy. Four judges

dissent on this issue.

4. The court unanimously affirms

that part of the district court's judg-

ment that upheld Eastern's mandatory

leave policy from the beginning of the

28th week of pregnancy.

Judge Sprouse, with whom Chief Judge

Haynsworth joins:

Eastern Airlines appeals from a

judgment finding it in violation of Sec-

tion 703(a) (2) of Title VII of the 1964

Civil Rights Act, 42 U.S.C. §2000e, et

seg. The District Court held Eastern

responsible for impermissible sex dis-

crimination against female flight atten-

dants in three particulars. It ruled

that Eastern's policies concerning man-

datory pregnancy leave, seniority for

temporary transfer to ground positions

and reinstatement rights after maternity

leave were all violative of Title VII.

The action was brought by Catherine

Burwell and Jean Proctor in the U. S.

District Court for the Eastern District

of Virginia, and by Sharyn Clayton in

the Northern District of Alabama. The

Clayton action was transferred to the

Eastern District of Virginia and the

actions consolidated. Also named as

defendants were Local 550 of the Airline

Steward and Stewardesses Association

and Local 553 of the Transport Workers

Union of America. There was a subse-

quent class action certification under

Federal R.C.P. 23(b)(1)(2). The certi-

fied class includes all female flight

attendants employed by the airlines on

October 27, 1972 who may be so employed

in the future and who may be subject to

the challenged employment practices.

At the time of the institution of

this action, 90 percent of Eastern's

flight attendants were female. Attacked

by the plaintiffs were five Eastern

employment practices or policies.

There is no factual dispute as to the

existence and nature of the policies.

They are or were:

(a)

(b)

A requirement that flight

attendants must commence

maternity leave immediately

upon knowledge of pregnancy;

A policy that pregnant flight

attendants lose all accumulated

seniority if they transfer to

ground positions rather than

taking maternity leave; flight

attendants temporarily trans-

fering to ground positions

because of disabilities other

than pregnancy continue to

accumulate seniority;

guaranteed rights to reinstate-

ment of flight attendants

taking maternity leave;

(ad) The separate treatment of

pregnancy under Eastern's Group

Comprehensive Medical Insur-

ance; and

(e) The exclusion of pregnancy from

Eastern's paid sick leave

policy and the impact of such

exclusion on other conditions

of employment.

The District Court ruled in favor of

the defendants on the medical insurance

and sick leave issues. The plaintiffs

have not appealed that decision. The

Court ruled for plaintiffs on the first

three issues, enjoined Eastern and the

union from continuing them, and assessed

back pay awards against only Eastern.

The unions have not appealed any ruling

and are not parties to this appeal.

Eastern did not appeal the rulings hold-

ing invalid Eastern's policy on rein-

eee ee Le eee ee ee

Sanaa

statement of flight attendants after

maternity leave.

The two issues remaining involve

possible violations of Section 703(a),

Title <— by Eastern practices or

policies: One, the policy requiring loss

of seniority for pregnant flight atten-

dants temporarily transferring to ground

Section 703(a) of the Civil Rights

Acts, 42 U.S.C. §2000e-2(a), states:

It shall be an unlawful employment

practice for an employer-

(1) to fail or refuse to hire or to

discharge any individual, or other-

wise to discriminate against any

individual with respect to his

compensation, terms, conditions, or

privilege of employment, because of

such individuals race, color,

religion, sex, or national origin;

(2) to limit, segregate, or classify

his employees or applicants for

employment in any way which would

deprive or tend to deprive any indi-

vidual of employment opportunities

or otherwise adversely affect his

status as an employee, because of

such individual's race, color,

religion, sex, or national origin.

positions; and Two, Eastern's policy re-

quiring forced mandatory leave upon

knowledge of pregnancy.

We affirm the District Court's

ruling that Eastern's seniority policy

governing temporary transfer to ground

positions violates plaintiffs' Title VII

rights. We affirm in part and reverse in

part the Court's rulings on the mandatory

pregnancy leave policies.

LOSS OF SENIORITY UPON

TEMPORARY TRANSFER TO GROUND POSITION

The facts are simple and undisputed

concerning Eastern's rules relating to

the temporary transfer of pregnant flight

attendants to ground positions. All

flight attendants incurring a temporary

disability are permitted to transfer to

available ground positions during the

disability from flight duty. This is a

right resulting from the collective

bargaining agreement which also provides

that flight seniority shall continue to

accrue during such temporary duty as

follows:

Section 16(b) When a Flight Atten-

dant is transferred to non-flying

duties with the Company on account

of physical incapacity or because

of sickness or injury, the Flight

Attendant shall retain and continue

to accrue seniority during such

period of sickness or injury for a

continuous period of (3) three

years.

Section 16(d), by reference to 16(b),

restricts seniority retention and accrual

rights to such transferees having a

"physical impairment" or "sickness or

injury":

Section 16(d) Except as provided in

paragraph (b) above, Flight Atten-

dants transferring to positions not

directly related to Flight Attendant

work will lose all seniority rights

as Flight Attendants.

Under Eastern's interpretation of the

collective bargaining agreement, the terms

“physical impairment" and "sickness or

injury" do not include pregnancy. But

10a

neither "physical impairment" nor "sick-

ness or injury" are defined in 16(b). The

collective bargaining agreement, therefore,

does not specifically deprive pregnant

flight attendants of these seniority re-

tention rights. Rather it is Eastern's

unilateral interpretation which excludes

pregnant flight attendants and results

in the loss of seniority when pregnant

flight attendants temporarily transfer to

ground positions.

Eastern contends that this issue is

governed by the Supreme Court's decision

in General Electric Company v. Gilbert,

429 U.S. 125 (1976). In Gilbert the Court

held that the exclusion of pregnancy from

an employer-funded sickness and accident

insurance program is not a per se sex-

based discrimination. "Gender-based dis-

crimination does not result simply because

an employer's disability benefits plan

is less than all-inclusive." 429 U.S. at

lla

138-39.

The issue in the instant case does

not involve a Gilbert determination. It

is controlled instead by Nashville Gas Co.

v. Satty, 434 U.S. 136 (1977). Gilbert

involved insurance payments, and the ex-

clusion of pregnancy benefits were

actuarily implicit in the funding of the

program. The Gas Company's practice,

considered in Satty, deprived an employee

returning from pregnancy leave of an

employment right - all accrued seniority.

Eastern's practice denying seniority to

pregnant flight attendants upon temporarily

transferring to non-flying duties, al-

though different in procedure and degree,

involves the same principle as Satty. The

Court there said:

On its face, petitioner's

seniority policy appears to be

neutral in its treatment of male

and female employees. [footnote

omitted]. If an employee is forced

to take a leave of absence from his

job because of disease or any dis-

12a

ability other than pregnancy, the

employee, whether male or female

retains accumulated seniority. ...

If the employee takes a leave of

absence for any other reason,

including pregnancy, accumulated

seniority is divested. ... It is

beyond dispute that petitioner's

policy of depriving employees

returning from pregnancy leave of

their accumulated seniority acts

both to deprive them 'of employ-

ment opportunities’ and to ‘ad-

versely affect [their] status as

employee. '

434 U.S. at 140-41.

The Court went on to Say:

We held in Gilbert that § 703(a) (1)

did not require that greater eco-

nomic benefits be paid to one sex

or the other "because of their

differing roles in 'the scheme of

human existence,'" 429 U.S. at 139

n.17. But that holding does not

allow us to read § 703(a)(2) to

permit an employer to burden female

employees in such a way as to de-

prive them of employment opportuni-

ties because of their different role.

(footnote omitted).

434 U.S. at 142.

So here, as in Satty, Eastern's

policy appears to be neutral in its treat-

ment of male and female employees, but its

impact was solely upon women, obviously

13a

depriving them of “employment opportuni-

ties" and adversely affecting their

status as employees because "of their

different role".

Eastern contends that the transfer

policy as a part of its collective bar-

gaining agreement is excepted from the

Operation of §703(a)(2) by the bona fide

seniority system provision of §703(h)

of Title VII. It is not necessary to

even consider that contention. The pro-

vision of the collective bargaining

upon which Eastern reportedly based this

practice contains no language excluding

pregnant flight transferees from its

seniority provisions. It was only

Eastern's unilateral interpretation that

effected this grossly discriminatory re-

sult. The District Court correctly held

that the temporary transfer to ground

position policy is a violation of plain-

tiffs Title VII rights.

l4a

THE MANDATORY MATERNITY LEAVE POLICY

We next consider the issue of manda-

tory maternity leave upon knowledge of

pregnancy.

The plaintiffs accuse Eastern of

treating them discriminatorily in viola-

tion of Section 703(a) of Title VII of

the 1964 Civil Rights Act, 42 U.S.C.

§2000e, et seg., hereafter Section 703 (a)

or Title VII. Eastern argues the poli-

cies are justified because pregnant flight

personnel could impede safe evacuation of

passengers and hinder other safety pro-

cedures in the event of emergencies. They

also argue, with less force, that the

health of the attendant and her unborn

child could be endangered. Any unequal

treatment due to pregnancy, it says, is

required for these reasons.

The central issue is whether Eastern's

mandatory leave policy is necessary to the

15a

safe transportation of passengers as

gauged by the criteria announced in

Robinson v. Lorillard Corporation, 444

F.2d 791 (4th Cir.), cert. dismissed,

404 U.S. 1006 (1971), hereafter more

fully discussed.

Eastern's requirement of leave upon

knowledge of pregnancy is its only health

related involuntary leave requirements.

There are no similar requirements for

leave upon knowledge of any other heaith

condition presenting a possible work im-

pairment. Individuals incurring non-

pregnancy related health problems are

evaluated individually as to their ability

to perform flight duties.

Eastern relies primarily upon a vol-

untary reporting system by attendants as

to their pregnancies. Although preg-

nancies are routinely not reported until

after the thirteenth week of pregnancy or

until after the pregnancy is visually

16a

discernable, the duty remains on atten-

dants to report and take leave as soon as

they are aware of this pregnancy. There

are no exceptions. The policy candidly

prevents all pregnant flight attendants

from working during pregnancy without

regard to individual ability.

Creditable witnesses for both plain-

tiffs and defendant produced an evidentiary

record detailing required performance in

emergencies, some specific experiences of

pregnant flight attendants during emergen-

cies, and considerable medical testimony

concerning pregnancy as it potentially

affects performance of flight attendants

during emergencies.

Flight attendants must be able to

perform both routine and emergency duties.

Non-emergency and routine duties require

considerable physical exersion.

Flight attendants may, on occasion, work

up to fourteen-hour days. Flight atten-

17a

dants are required to push heavy food

carts. There is danger from being in-

jured by air turbulence. Testimony

reflected that Eastern flight atten-

dants reported an average of over thirty

compensable injuries from turbulence

annually over a four year period.

Among emergency duties is opening

doors and windows, assisting with life

rafts, evacuating passengers, and proper

psychological reaction to hijacking.

The following list of duties was

compiled by the Medical Committee of Air

Transport Association.

L. PHYSICAL ACTIVITIES

Lifting--up to 25 pounds regu-

larly, 50 pounds occassionally.

Prolonged walking.

Prolonged standing.

Repeated bending and stooping.

Occasional overhead reaching.

Kneeling.

Pushing and pulling.

Ability to withstand recurrent

training.

Footnote continued on following page.

18a

The windows on some Eastern planes

Footnote continued from previous page --

il.

EMERGENCY DUTIES

Hemlich maneuver.

Lift out emergency window

exits--weight 30 pounds each

exit.

During evacuation: carry

children, push passengers down

slides, crawl over seats to

reach exist and/or

passengers, administer rirst

aid.

Carry out overwater ditching

and survival procedures.

Assist with life raft--weight,

120 pounds.

Assist passengers into raft.

Operate emergency equipment for

flight attendant's own use.

Mouth-to-mouth resuscitation.

Psychological reactions to hi-

jacking and in-flight

emergencies.

WORKING CONDITIONS

Assisting "extra care" pas-

sengers.

Cabin pressurized to 5,000 feet.

Exposed to jet engine noise.

Irregular schedules.

Occasionally long working hours

(up to fourteen continuous

hours).

Temperature extremes (depending

upon time of year and loca-

tion).

Light to severe turbulence on

occasion.

19a

weigh 45 pounds. The exit doors ordinarily

require 45 pounds of pressure to open and

more if the door is jammed. If the exit

doors are blocked flight attendants must

use alternate escape routes. During eight

emergencies since 1954 flight attendants

were required and did in fact perform

practically all of the emergency proce-

dures. Flight attendants have been re-

quired during specific emergencies to:

climb from the airplane, climb onto the

wing and open the exit windows from the

outside; kick in the cockpit doors and

exit through the windows which ~easured

16 x 18 inches; evacuate a paraplegic;

evacuate several children and two in-

valids; evacuate intoxicated and

sleeping passengers.

Eastern's evidence established that

during its flying experience there had

been three pregnant flight attendants

incapacitated due to pregnancy related

20a

disabilities which began during flying

trips, and that other pregnant flight

attendants had become incapacitated due

to nausea, morning sickness, and fatigue

during flight. None of this occurred

during an emergency.

The medical witnesses agreed that

pregnancy is normally considered in

three trimesters of approximately thir-

teen weeks each and that roughly speaking

each trimester involves different health

problems; that a normal, healthy woman

experiencing a normal, healthy pregnancy

would have little difficulties performing

the regular duties of a flight attendant

until her girth has increased appreciably,

(this varies by individual, but most often

occurs shortly after the first trimester) ;

that disabilities from abnormal pregnancy

could prevent a flight attendant from

performing either ordinary or emergency

duties; that some of these disabilities

2la

are predictable as to individual women

but some are unpredictable.

They also agreed that ten percent of

all pregnancies result in miscarriages

and ninety percent of these occur during

the first trimester of pregnancy. Very

few miscarriages can be predicted as to

individual women. The medical experts

and sources (including the Mayo Clinic,

the doctors associated with Airline

Transport Association and even some

Eastern sources) point to the virtual

unanimous conclusion that a pregnant

flight attendant can adequately perform

routine and emergency duties through the

thirteenth week of pregnancy. The un-

contradicted testimony was that preg-

nant women should not continue to work

as flight attendants beyond the twenty-

eighth week of pregnancy.

There was conflicting testimony con-

cerning morning sickness, dizziness,

22a

fainting and the treatment of these condi-

tions; anemia; placentia prania; toximia;

rupture of the marginal sinus; abruptia

placentae; as to when these conditions

occur; and the causitive effect of

physical exertion during routine and

emergency procedures.

There have been no emperical studies

nor evidence concerning the effect of

flight duty upon an unborn child. Like-

wise there are no reliable statistics

concerning the actual performance of

pregnant flight attendants during emer-

gency evacuations or other emergencies.

The trial court resolved conflicts

in medical testimony principally in favor

of the plaintiffs. The court, in a mixed

finding of fact and law, found that for

the first twenty weeks following concep-

tion a flight attendant undergoing a

normal pregnancy can perform both normal

and emergency duties as well as a non-

23a

pregnant flight attendant, that between

twenty and twenty-eight weeks some can

not but they can be identified, and as

of the twenty-eighth week of pregnancy

virtually all pregnant flight attendants

should discontinue working as flight

attendants. Its legal conclusion was

that during the first thirteen weeks,

flight duty should be entirely the

choice of the fiight attendant; from

thirteen to twenty weeks, Eastern could

require monthly written permission of

her doctor; from twenty to twenty-eight

weeks, flight duty could be conditioned

on weekly permission from her doctor, and

she could be prohibited flight duty after

the twenty-eighth week.

The trial court concluded that the

plaintiffs established a prima facie case

of disparate impact discrimination; that

See Teamsters v. U.S., 431 U.S. 324

(1977).

24a

the defendant did not prove either a bona

fide occupational qualification defense

(hereafter ey nor a business necessity

niin and that even if a defense had

been established it was, in part, a

pretext.

We think the trial court was clearly

wrong in its finding that pregnant flight

attendants who will experience abnormal

This defense is provided in Section

703(e) of Title VII, 42 U.S.C. §2000e-

2(d) as follows:

Notwithstanding any other pro-

vision of this subchap.er, (1) it

shall not be an unlawful employment

practice for an employer to hire and

employ employees ... on the basis of

[their] religion, sex, or national

Origin in those certain instances

where religion, sex, or national

origin is a bona fide occupational

qualification reasonably necessary

to the normal operation of that

particular business or enterprise.

The Business necessity test was

first announced in Griggs v. Duke Power

Co., 401 U.S. 424 (1971). To be success-

ful an employer must show that the prac-

tice bears a manifest relation to the

employment. 401 U.S. at 432.

25a

health incidents during their pregnancies

can be uniformly identified prior to the

onset of such incidents. There is very

little, if any, evidence to support that

finding. We do not otherwise disturb the

district court's findings of subsidiary

facts relating to the characteristics of

pregnancy for it was in the traditional

better position to consider conflicting

expert evidence than are we. We differ,

however, in the legal application of

these and other facts to the business

necessity defense.

The district court concluded that

there was an acceptable alternative

available to Eastern by which it could

equally accomplish its purpose with

lesser differential impact. That is it

could set a later date for its mandatory

leave requirement. That legal conclusion,

however, is dependent primarily on the

finding that there were bare bones

mechanical procedures available to obtain

written doctor's approvals for pregnant

attendants weekly between the 13th and

20th week, and monthly between the 20th

and 28th week.

Footnote continued on following page.

26a

The Supreme Court has twice considered

Footnote continued from previous page --

The testimony of medical experts,

however, indicated only that abnormal

health problems connected with pregnancy

could usually be identified prior to an

attendant commencing a specific flight.

That is not sufficiently specific to

assist management, unions, or individual

flight attendant devising safety pro-

cedures to prevent the one catastrophe

that might occur while in flight safety

procedures that must be anticipated, not

critiqued, after a catastrophic crash.

To be probative, supportive facts

should have included reasonably specific

percentages of flight attendants identifi-

able prior to flights as having health

difficulties with their pregnancy; the

types and nature of possible health

problems identifiable; experience, if

any, from industrial health experts from

other industries concerning results of

predicting pregnancy problems of women

employees; and evidence that doctors

would be willing to accept responsibility

of making risk judgments concerning

safety of unknown passengers rather than

make "probability" judgments as to the

health of patients - for medical prac-

tice and patient convenience. It is only

this kind of fact-finding that is subject

to the FRCP 52 "clearly erroneous stan-

dard." The ultimate conclusion that

these facts demonstrate vel non reason-

ably acceptable alternatives is a con-

clusion of law.

27a

equal fringe benefit treatment of preg-

nant women in voluntary non-working

any but has not decided a case ina

Title VII ey involving an employer

prohibiting outright a woman from working

because of her pregnancy. We are pre-

sented with that question.

The enactment of Section 703(a)

understandably generated prolific liti-

gation by female airline flight atten-

dants attacking numerous employment

practices in the airline industry. None

have been more difficult to judicially

determine than the issue created by the

previously universal airlines practice

requiring mandatory pregnancy leave by

General Electric Co. v. Gilbert,

429 U.S. 125 (1976); Nashville Gas Co. v.

Satty, 434 U.S. 136 (1977).

See Cleveland Board of Education v.

LeFleur, 414 U.S. 632 (1974) holding

invalid under due process standards

certain arbitrary mandatory maternity

leave requirements for public school

teachers.

28a

female flight attendants at various

stages of pregnancy. The most common

airline rule has been to require maternity

leave upon knowledge of pregnancy. A

number of courts have decided this issue,

considering basically the same quantity

and quality of evidence. A number of the

same medical experts have appeared in

cross-sections of the decided cases. Some

courts have considered virtually the same

medical testimony, and have reached such

contradictory results that it is impos-

Sible to reconcile them:

National Airlines could not re-

quire maternity leave during the

first thirteen weeks of pregnancy,

but as a bona fide occupational

qualification could condition flight

duty between the thirteenth and

twentieth week, and could prohibit

such duty after the twentieth week

of pregnancy. In re National Air

29a

Lines, Inc., 434 F. Supp. 249 (S.D.

Fla. 1977);

Pan American World Airways could,

both as a "business necessity" and a

bona fide occupational qualification,

require maternity leave upon knowledge

of pregnancy. Harriss v. Pan American

World Airways, Inc., 437 F. Supp. 413

(N.D. Calif. 1977) (Judge Schwazer) ;

Western Airlines could require

leave upon knowledge of pregnancy.

Air Line Pilots Association, et. al.

v. Western Air Lines, Inc., 22 E.P.D.

130,636 (N.D. Calif. 1979) ;

Delta Airlines could require

maternity leave upon knowledge of

pregnancy, as a bona fide occupa-

tional qualification. EEOC v. Delta

Air Lines, Inc., 441 F. Supp. 626

(S.D. Tex. 1977).

Three district court opinions in this

Circuit reach different factual and legal

30a

conclusions from similar medical and non-

medical evidence:

United's requirement that flight

attendants stop flying upon the

knowledge of pregnancy was held to be

a bona fide occupational qualification

permitted by §703(e). Condit v.

United Airlines, Inc., 12 E.P.D.

- 411,195 (Affirmed as not being clear-

ly erroneous under F.R.C.P. 52(a)

standards. Condit v. United

Airlines, Inc., 558 F.2d 1176 (4th

Cir. 1977), cert. denied, 435 U.S.

934 (1978).

American could not require its

pregnant flight attendants to take

maternity leave until after the

twenty-sixth week. Maclennan v.

American Airlines, Inc., 440 F. Supp.

' 466 (E.D. Va. 1977);

Eastern's right to restrict

flight duty was held to vary through

3la

four different periods of pregnancies,

i.e., the first thirteen weeks; thir-

teen to twenty weeks; twenty to

twenty-eight weeks; and twenty-eight

weeks to termination of pregnancy.

Burwell v. Eastern Airlines, Inc.,

485 F. Supp. 474 (E.D. Va. 1978) (the

case sub judice).

The initial burden of Title VII plain-

tiffs is to show a prima facie case of

employment discrimination - the burden

then shifts to the defendant to prove,

articulate or show a defense to the ap-

parent discrimination. If the plaintiff,

in turn, can show that the proffered em-

ployer defense is a pretext, they may

Still prevail. McDonnel Douglas Corp. v.

Green, 411 U.S. 792 (1973); Albemarle

Paper Company v. Moody, 422 U.S. 405

(1975).

Plaintiffs may, under current Title

VII jurisprudence, prove a prima facie

32a

case of employment discrimination under

one of two clearly defined theories:

discrimination by disparate treatment

or discrimination by disparate impact.

"Disparate treatement" such as is

alleged in the present case is the

most easily understood type of

discrimination. The employer

simply treats some people less

favorably than others because of

their race, color, religion, sex,

or national origin. Proof of dis-

criminatory motive is critical,

although it can in some situations

be inferred from the mere fact of

differences in treatment. ...

Undoubtedly disparate treatment

was the most obvious evil Congress

had in mind when it enacted Title

VII. ... Claims of disparate

treatment may be distinguished

from claims that stress "disparate

impact." The latter involve

employment practices that are

facially neutral in their treat-

ment of different groups but that

in fact fall more harshly on one

group than another and cannot be

justified by business necessity.

--- Proof of discriminatory motive,

we have held, is not required under

a disparate-impact theory. Compare,

e.g., Griggs v. Duke Power Co.,

401 U.S. 4, 430-432, with

McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-806. ... Either

theory may, of course, be applied

to a particular set of facts.

33a

Teamsters v. U.S., 431 U.S. at 335-36, n.15.

Eastern's mandatory maternity leave

requirements, although facially neutral,

affect only one class of employees -

female flight attendants - and have a

disproportionate impact on their employ-

ment Opportunities. This establishes a

prima facie case of disparate impact

employment sudcria eae Eastern

then, at trial, had the burden of defend-

ing against the prima facie discrimina-

tion by demonstrating a legitimate justi-

fication for its policy.

Disparate treatment and disparate

impact theories may be present as alter-

native grounds for relief in the same

case. If sufficiently supported by the

evidence, either may be analyzed by the

trier of fact as alternative grounds for

relief. Wright v. National Archives and

Record Service, No. 77-1543 (4th Cir.

1979). However, "a claimant's path after

establishment of a prima facie case is

considerably easier under the impact

theory than under the treatment theory,

and the same probably holds true for

relative ease of proof analysis by

courts." Wright, supra.

34a

The trial court, recognizing some con-

fusion in Title VII sex discrimination

cases as to whether a BFOQ defense ora

business necessity defense applies to a

The criteria for judging a BFOQ

defense was expressed in Arritt v. Grisell,

567 F.2d 1267 (4th Cir. 1977), an age

discrimination case:

the burden is on the employer to show

(1) that the BFOQ which it invokes

is reasonably necessary to the es-

sence of its business (here the

operation of an efficient police

department for the protection of

the public), and (2) that the

employer has reasonable cause, i.e.,

a factual basis for believing that

all or substantially all persons

within the class (in our case,

persons over 35 years of age) would

be unable to perform safely and

efficiently the duties of the job

involved, or that it is impossible

Or impractical to deal with persons

over the age limit on an individual-

ized basis.

Id. at 1271.

The criteria for establishing this

defense has been no where better stated

than in Robinson v. Lorillard, 444 F.2d 791

(4th Cir.), cert. dismissed 404 U.S. 1006

(1971), infra.

35a

disparate impact type discrimination,

tested Eastern's evidence under both

RR cas Despite the trial court's

understandable dilemma, "business

necessity" is the test that should have

been applied.

Business necessity as a defense

was first defined by the Supreme Court

concommitantly with the recognition

of disparate impact discrimination.

Griggs v. Duke Power Co., 401 U.S. 424

(1971). ° BFOQ was explicitly created

Considering both a business neces-

sity and a BFOQ defense applicable in

mandatory pregnancy leave cases, See

Harris v. Pan American, supra; Eastern

Air Lines, Inc. v. Burwell, supra.

Many courts have considered both a

"business necessity and a BFOQ defense

available in a disparate impact case.

See also Schlei and Grossman, Employ-

ment Discrimination Law 1160 (1976)

where, in the author's opinion, the

available defenses are a "business

necessity, a bona fide occupational

qualification or some other explana-

tion which demonstrates that the sub-

stantial disparate impact is not the

result of unlawful discrimination."

36a

by statute [703(e)] as a defense to

the equally explicit disparate treat-

ment discrimination of § ate)

To say, however, that the two defenses

are mutually exclusive, and each con-

fined to a separate theory of liability

would be overreaching. In sex dis-

crimination cases, however, a clear

disparate impact discrimination will

be tested by business necessity and

The logical equation would seem to

be: a prima facie case of disparate

treatment discrimination, a’BFOQ defense;

a prima facie case of disparate impact

discrimination, a business necessity

defense. There is, however, a "clinker"

in this otherwise symmetrical reasoning.

Congress, in §703(a), prohibited employ-

ment discrimination based on race, color,

religion, sex, or national origin. The

statutory BFOQ defense, however, is

pointedly restricted to religion, sex or

national origin - it is not permitted as

a defense to race discrimination in

employment. In Title VII disparate

treatment race cases the appropriate

defense is usually expressed as the

employer "articulating some legitimate,

non-discriminatory reason" for its action.

McDonnell Douglas v. Green, 4ll U.S. at

802; Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978).

37a

a clear disparate treatment discrimi-

nation will be tested by a BFOQ defense.

Dothard v. Rawlinson, 433 U.S. 321

(1977).

The task of testing the validity

of Eastern's justification therefore

is simplified since business necessity

is an appropriate employer defense.

It is not necessary to consider if a

In Dothard the Supreme Court

considered two alleged sex discrimina-

tions by the Corrections Department,

State of Alabama in the administration

of its prison system. The first was

by a facially neutral statute which

was characterized as a disparate impact

discrimination, and tested by a

business necessity defense. The second

was a specific discrimination against

women, characterized as a disparate

treatment and a BFOQ defense applied.

Dothard v. Rawlinson, supra. See also

Schlei and Grossman, supra at 292.

38a

BFOQ defense might also apply or

whether it might be an appropriate

defense consideration in some disparate

impact discrimination cases.

Even if it were proper to

test Eastern's practice as a BFOQ,

it is doubtful that the defense would

be successful since this test has an

extremely narrow application. Dothard

v. Rawlinson, 433 U.S. at 333.

It is possible to conceptual-

ize employment practices producing

separate factual grounds to sustain

disparate impact and disparate treat-

ment discriminations or circumstances

which might be confused as to which

theory would apply. It would seem, in

such cases, that the judicial flexi-

bility which has evolved in Title VII

cases should permit the application

of either theory and except in race

cases, either defense. Although

announced in a different context, the

court's language in Furnco would indi-

cate this direction for this area of

Title VII procedure.

Footnote continued on following page.

39a

To successfully justify its differ-

ent treatment of women flight attendants

as a business necessity, Eastern must

show that its challenged practice bears

Footnote 16 continued from previous page

This, of course, was not intended

to be an inflexible rule, as the

Court went on to note that ' [t]he

facts necessarily will vary in

Title VII cases, and the specifica-

tion ... of the prima facie proof

required from respondent is not

necessarily applicable in every

respect to differing factual situ-

ations.

438 U.S. at 575-76 (commenting on the

McDonnell Douglas formula for establish-

ing a prima facie case).

The method suggested in McDonnell

Douglas for pursuing this inquiry,

however, was never intended to be

rigid, mechanized, or ritualistic.

Rather, it is merely a sensible,

orderly way to evaluate the evi-

dence in light of common experi-

ence as it bears on the critical

question of discrimination.

438 U.S. at 577 (commenting on the pro-

cedural scheme for analyzing a Title VII

case).

Footnote continued on following page.

40a

a manifest relation to the flight atten-

dants employment - that it is related to

their job performance. Griggs v. Duke

Power Co., 401 U.S. at 431. If the job

related qualification is bona fide, it

may "measure the person for the job and

not the person in the abstract." Dothard

v. Rawlinson, 433 U.S. at 332, citing

Griggs, 401 U.S. at 436.

We measure the mandatory maternity

leave policy by the criteria expressed

in Lorillard:

Footnote 16 continued from previous page

The petential for violations are so

variable that the Supreme Court has

simply devised new judicial tools for

analyzing of Title VII cases. It is

significant that although the Court

throughout Title VII opinions speaks in

terms of disparate treatment, disparate

impact, BFOQ, business necessity, etc.,

that it cites the same general principles

of Title VII law in all type cases.

4la

...-The test is whether there exists

an overriding legitimate busi-

ness purpose such that the practice

is necessary to the safe and

efficient operation of the busi-

ness. Thus, the business pur-

pose must be sufficiently com-

pelling to override any racial

impact [footnote omitted]; the

challenged practice must effec-

tively carry out the business

purpose it is alleged to serve

[footnote omitted]; and there

must be available no acceptable

alternative policies or practices

which would better accomplish the

business purpose advanced, or

accomplish it equally well with

a lesser differential impact

[footnote omitted].

Robinson v. Lorillard, 444 F.2d at 798.

Eastern's contention that an

element of business necessity is its

consideration for the safety of the

pregnant flight attendant and her un-

born child is not persuasive. If

this personal compassion can be at-

tributed to corporate policy it is

commendable but in the area of civil

rights, personal risk decisions not

affecting business operations are best

42a

left to individuals who are the tar-

gets of discrimination. Its con-

tention that the leave policy is

legitimately designed to enhance the

safety of passengers meets with more

success. Focusing all the evidence

at trial through the criteria of

Lorillard demonstrates that Eastern's

policy as it relates to pregnancy

after the thirteenth week results

from the legitimate business neces-

sity of safely transporting passen-

gers.

This case was not constricted by

inadequate evidentiary procedures at

trial nor is it necessary to involve the

"proof" problems of Furnco, supra, and

Sweeney v. Board of Trustees, 439 U.S. 24

(1978), to determine in this business

necessity setting whether an employer

must "articulate" or must "prove" its

defense.

Footnote continued on following page.

43a

One -- Eastern's evidence at trial

was that a mandatory leave policy was

necessary to the safe and efficient

operation of its business. There is no

evidence that it acted on contrived

advice nor was its witnesses discredited

at trial. There is nothing in the

record to indicate that Eastern was not

persuaded by the medical and operational

information available to it. At the most

Eastern knew of opposing medical views as

‘

Footnote 17 continued from previous page

Here the discrimination charges and

defense were as fully presented as they

could be under any order of proof. The

burden of proving the defense is on the

employer. The burden of persuasion

ultimately falls on the plaintiffs, to

show an acceptable alternate practice or

that Eastern's defense was a pretext.

This breaks no tradition for the burden

is no heavier than that of the tradi-

tional proponent.

The district court properly con-

sidered the factual issues under the

preponderence standard, but it erred

in viewing Eastern's business neces-

sity too narrowly.

44a

to the effects of the first to twenty-

eighth week of pregnancy on the ability

of its flight attendants to perform in

emergencies.

Medical opinion concerning char-

acteristics of pregnancy both available

to Eastern and offered at trial was

clinical in part but in large part

subjective. The non-medical opera-

tional opinions were based on scant

statistics. Happily the relatively

low number of serious emergencies

in the airline industry have afforded

few statistics relating to the job

performance of pregnant flight atten-

dants. Doctors opinions as to possi-

ble effects of health conditions on

safety in industry are, of course,

crucial. They are certainly important

in this narrow field of the Civil

Rights law, and Courts with some ease

can judge which of the medical experts

45a

are more persuaSive. Neither air-

lines, doctors, or courts, however,

possess the clairvoyance necessary to

chart exact percentages of risk of an

in-flight disaster. The ultimate

chore of managing risks to passengers,

nevertheless, falls to the airline,

and in deference to the complexity of

the task a court should not facilely

substitute a judicial judgment that

the resultant leave policy is un-

necessary to the safe and efficient

transportation of passengers.

Two -- The plaintiffs do not

seriously contend they should engage

in flight duty after the twenty-eighth

week of pregnancy. The adverse impact

of the challenged leave policy on

women flight attendants, then is to

deprive them of fifteen weeks of employ-

ment during a pregnancy. We do not

minimize the importance of that working

46a

time to individual women who may desire

and need the income which they would

earn. In choosing between two criti-

cal values, however, passenger safety

is sufficiently compelling to override

this impact.

Three -- Once it is assumed the

business purpose is legitimate, there

is no question but that the practice

effectively carries out that purpose.

Four -- There is little, if any,

evidence to indicate that required

maternity leaves could be Zetermined

on an individual basis in such a way

as to equally accomplish the purpose

with a lesser differential impact.

Tested by these standards, how-

ever, there is no credible evidence

Supporting Eastern's contention that

pregnancy during the first thirteen

Weeks is a factor that might affect

the safety of its passenger operation.

47a

III. The Question of Pretext

The plaintiffs contend that even

if there is an apparent job related

reason for Eastern's leave policy, it

is in fact a pretext erected by the

airline to camouflage its discrimina-

tory intent. If this contention is

correct, the plaintiffs would pre-

vail despite an apparent business

necessity.

The concept of pretext as a part

of the plaintiff's proof was first

recognized in McDonnell Douglas, supra,

a disparate treatment case. In Albemarle

Paper Co. v. Moody, 422 U.S. 405 (1975),

a disparate impact case, the Supreme

Court characterized this rebutt-l

phese of a plaintiff's case by stating

"It remains open to the complaining

party to show that other tests or

selection devices without a similar

undesirable racial effect, would also

serve the employer's legitimate interest

in efficient and trustworthy workman-

ship." (The Court went on to state that

such a showing would be evidence of

employer "pretext".) Since this is

essentially equivilent to one element

of the Lorillard business necessity test,

it might appear that the scheme of

Footnote continued on following page.

48a

The trial court bifurcated

Eastern's alleged pretext according

to the period of pregnancy. It held

the justification for mandatory leave

Footnote 18 continued from previous page

proof implicit in Lorillard, supra,

absorbs the "pretext" function in

disparate impact/business necessity

cases. Subjective motivation of the

employer plays no role in determining

whether "business necessity" is a

legitimate defense. It would seem,

since "pretext" is subjective in nature,

it would not be part of the scheme of

proof in disparate impact cases. The

Supreme Court, however, appeared to use

it in that context in Albermarle.

I would not approve or disapprove its

use here. The legitimacy of Eastern's

"business necessity" must be decided

from objective facts. If a district

court, however, wishes to view the

fact from different prospectives,

it should not be inhibited by sematic

obstacles from using any tool that

might be helpful in resolving these

difficult legal/factual questions.

In light of the Furnco announced

elasticity of analysis, a trial court

should not be formalistically preclude‘

from utilizing pretext even in dis-~

parate impact cases if viewing the

employers’ actions from that pro-

spective contributes to the objective

understanding of whether the practice

is necessary.

49a

prior to the twenty-eighth week to be

a pretext, but found pretext not in-

volved in Eastern's decision that leave

after the twenty-eighth week of preg-

nancy was a business necessity.

The court found that Eastern had

a long history of sex-based discrimi-

natory employment practices. Other

evidence of pretext was its failure to

check on the health conditions of

flight attendants generally, and its

lack of diligence in policing the

mandatory leave requirements. There

is no doubt that Eastern has a long

history of blatant employment dis-

crimination based on sex. There was

no attempt to camouflage, for these

were standard airline practices.

It is also true that the policing of

health conditions largely relied on

voluntary information provided by the

affected flight attendant.

50a

The long history of sex discrimi-

nation by Eéestern and airlines generally

certainly makes suspect the claim of

business necessity for any employment

practice resulting in a prima facie

discrimination. We cannot say, though,

that the malevolent history auto-

matically poisons every employment

practice. Although the history is a

heavy evidentiary factor, each practice

must be judged as to its purpose, and

each Albemarle alternative practice

advanced by plaintiffs must be gauged

in light of this avowed purpose.

The courts in the Civil Rights

area tread the hard drawn line between

preventing the abuse of individuals and

interfering in legitimate business

intercourse. If employers do not meet

the humane standards of Title VII in

its relations with employees the courts,

if necessary, will order corrective

5la

action, but there are limits to such

judicial relief. As stated in Furnco:

"Courts are generally less competent

than employers to reconstruct business

practices, and unless mandated to do so

by Congress they should not attempt

it." Furnco v. Waters, 438 U.S. at

578. The Furnco admonition applies

both to determining if there was a

business necessity for the leave

policy and whether there was pretext in

establishing it.

Simply stated, the necessity for

limiting the flight duty of pregnant

attendants was part of Eastern's pro-

gram to maximize the safety of its

passengers. Safety practices of

this nature are not designed to

govern a certain disaster. Risk

management involves the elimination

of potential impediments to safety

before they materialize into unfortunate

52a

realities. To require safety manage-

ment to predict with exactness human

factors involved in such a variable

emotional and physical experience as

pregqnancy is to require the impossible.

Pretext might easily be found if a

newspaper, a public school system, or

a law firm discriminatorily chooses a

course of action resulting in the

prevention of women employees working

during any phase of pregnancy, but

an industry with a primary function

of managing the safety of large num-

bers of passengers must be allowed

more latitude. It legitimately is

required to scrutinize more closely

the ability of a woman to perform

during different stages of pregnancy.

Her safety properly should be left

for her consideration but if the

physical or emotional aspects of preg-

nancy could affect the performance of

53a

a primary business objective, it is

properly for the employer to consider.

It is emphasized that the correctness

of Eastern's "business necessity"

termination is not judged by its sub-

jective motivation. "Business neces-

sity" as a defense succeeds or fails on

objective necessity based on facts

available to it at the time it de-

signed the controverted policy.

Despite computerized resolution

of the logistics of mass transporta-

tion, there remains to simple business

judgment many choices which can not

be computerized. Subjective good faith

is not enough to justify sex discri-

mination as a business necessity, yet

in objectively weighing the necessity

against the Lorillard standards, the

test is not whether each underlying

assumption is ultimately proved to be

correct. The Lorillard tests are

54a

satisfied if all information avail-

able to the employer reasonably requires

the challenged personnel practice in

order to achieve an overriding business

purpose. The employer's actions must

be contemporaneously judged - not

tested by hypothesis that are not

provable or which would require un-

reasonable experimentation with it's

business in order to prove the vali-

dity of it's decision. These con-

siderations lead us to the belief that

Eastern legitimately established the

disputed leave policy as a business

necessity.

Accordingly, this case is af-

firmed in part and reversed in part and

remanded to the district court for

action consistent with this opinion.

55a

AFFIRMED IN PART,

REVERSED IN PART and

REMANDED

Judge Butzner, with whom Judge Winter,

Judge Hall, and Judge Phillips join,

concurring in part and dissenting:

I concur in affirming the district

court's judgment that Eastern could not

require precnant stewardesses to for-

feit their seniority rights upon tem-

porary transfer to ground work. Fur-

thermore, I agree with the conclusions

reached in Part II of Judge Sprouse's

opinion that Eastern cannot impose its

mandatory leave policy during the

first trimester of pregnancy and that

it can impose this policy after the

28th week of pregnancy. I also agree

that Eastern has not justified its

maternity leave policy on the ground

that it promotes the safety of its

pregnant stewardesses and their unborn

children.

The district court ruled that

56a

Eastern must evaluate on an individual

basis the ability of each stewardess

to perform her duties between the

13th and 28th weeks of her pregnancy.

I dissent from the reversal of this

aspect of the district court's judg-

ment. It is founded on the correct

application of Title VII of the Civil

Rights Act of 1969 to facts that are

amply supported by the record.

As Judge Sprouse's opinion lucidly

demonstrates, Eastern's mandatory

pregnancy leave policy has a disparate

impact on the stewardesses as a class.

Therefore, it can be sanctioned only

if it is "necessary to the: safe and

efficient operation of the business."

Robinson v. Lorillard Corp., 444 F.2d

791, 798 (4th Cir. 1971). Voicing a

rational justification for the policy

is not enough. When, as here, a com-

57a

plainant has established a prima facie

case of discriminacion by showing that

an employment policy has a disparate

impact on the protected class, and the

employer has shown that its policy is

job related, a court's analysis must

proceed to what I consider the criti-

cal issue in this case. This is the

question of suitable alternatives to

the challenged policy. The Supreme

Court has aptly phrased this issue for

us: "[I]t remains open to the com-

plaining party to show that other

tests or selection devices without

a Similarly undesirable racial [or

sex-based] effect would also serve the

employer's legitimate interest in

‘efficient and trustworthy workmanship.'"

Albemarle Paper Co. v. Moody, 422 U.S.

405, 425 (1975). Judge Sobeloff reached

the same conclusion in Robinson v.

Lorillard Corp., 444 F.2d 791, 798

58a

(4th Cir. 1971), where, speaking of the

business necessity defense, he said,

"(T] here must be available no acceptable

alternative policies or practices which

would better accomplish the business

purpose advanced, or accomplish it

equally well with a lesser differential

racial [or sex-based] impact." If

such alternatives exist, it cannot be

said that the employer's business

practice, thouch job related, is

necessary. 444 F.2d at 798 n.7.

The district court adhered to

these precepts. It recognized that

East2rn's policy was job related, but

it found from the evidence that al-

ternative measures would serve Ezstern's

legitimate interests. In part II I

will attempt to demonstrate within the

brief confines of a dissenting opinion

that, although the evidence con-

flicted, the district court's findings

59a

of fact are amply supported by the

record. But first, one other aspect of

the law deserves comment.

Acceptance of Eastern's policy

cannot be predicated on the company

officials' assertion of a bona fide

belief that it is jusitifed. The prin-

ciples that govern discriminatory

impact cases and the business necessity

defense are explained in Griggs v. Duke

Power Co., 401 U.S. 424 (1971). There,

speaking of an employer's lack of dis-

criminatory intent, the Court said,

401 U.S. at 432:

But Congress directed the thrust

of the Act to the consequences

of employment practices, not simply

the motivation. More then that,

Congress has placed on the em-

ployer the burden of showing that

any given requirement must have

a manifest relationship to the

employment in question.

Griggs persuades me to reject Eastern's

thesis that its bona fide belief in the

utility of its mandatory pregnancy

60a

policy should determine the outcome of

this case. The company's reliance on

Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978), does not compel

a different conclusion. Furnco dealt

with a type of discrimination that has

been described as disparate treet-

ment. In such cases the complainant

must prove discriminatory motive. In

contrast, a complainant need not prove

discriminatory motive in a case that

discloses discriminatory impact. See

generally Teamsters v. United States,

431 U.S. 324, 335-36 n.15 (1977).

The district court, of course, is

the appropriate and best judge of the

evidence. We may reject its findings

only for clear error. Fed. R. Civ. P.

52(a); United States v. United States

Gypsum Co., 33 U.S. 364, 394-95

6la

(1948). Expert witnesses presented

conflicting views about the effects

of pregnancy on a stewardess's ability

to do her job. The district court

resolved these conflicts and found

from the evidence that alternative

measures, short of grounding all preg-

nant stewardesses, could reconcile

Eastern's legitimate interests with the

Act's prohibition of sex-based dis-

crimination.

The most comprehensive empirical

evidence in the record about the

routine operation of an airline that

does not have a mandatory pregnancy

leave policy fully sustains the dis-

trict court. Northwest Airline ste-

This familiar principle of ap-

pellate review dictated affirmance

of the district court in Condit v.

United Air Lines, 558 F.2d 1176 (4th

Cir. id).

62a

wardesses continue to work until

the 28th week of pregnarcy if phy-

Ssicians certify to their mivikten.

Northwest's policy recognizes, as did

the district judge, that pregnant

stewardesses can and should be

evaluated on an individual basis. North-

west adopted this policy after con-

sulting with medical experts of the

Division of Obstetrics and Medical

Gynecology at the Mayo Clinic. These

experts concluded that pregnancy did

not affect all stewardesses' abili-

ties until late in gestation. North-

west's medical advisor, a diplomate

in Aviation Medicine and a former

president of the Aerospace Medical

Association, testified that Northwest

had experienced no operating diffi-

Eastern's interim policy, discussed

infra at pp. 9-10, adopts essentially

the same procedures.

63a

culties during the two years that this

policy had been in force, although

many women had been flying while

pregnant.

A recognized expert in gynecology

and obstetrics, who had done consider-

able work on the effects of high al-

titude on fetal development, testified

that the increasing weight gain and

girth that accompany pregnancy are the

principal incapacitating factors for

work as a stewardess. He discounted

the significance of most of the typical

complications of pregnancy, svch as

fatigue, morning sickness, fainting,

varicose veins, and clumsiness. He

stated that the average stewardess would

retain her abilities unchanged through

the 20th week of pregnancy, and that,

for 20 to 28 weeks, ability would de-

pend on the individual. He believed

that, although it is impossible to

64a

predict beforehand which pregnancy

would produce disabling complications,

such complications usually can be

diagnosed during the course of preg-

nancy before disability. He also

asserted that pregnant stewardesses

before 28 weeks are at no greater

risk of trauma than non-pregnant stew-

ardesses. He considered the risk

of miscarriage, which he admitted could

be disabling, no greater than the risk

of a male steward's suffering from

appendicitis or a heart attack while

in flight.

The stewardesses' other medical

witness, an author of a major treatise

on obstetrics who also qualified as

an expert in gynecology and hematology,

testified that he believed pregnant

stewardesses should and could be evalu-

ated on an individual basis. He stated

that pregnancy generally produces no

65a

appreciable change in strength or in

the ability to perform physical work

before the 28th week. He also testified

that trauma severe enough to disable

a pregnant stewardess would likely

incapacitate a non-pregnant stewardess.

Although Eastern's medical experts

were firm in their opinion that pregnant

stewardesses Should not be permitted

to fly, their testimony, fairly read,

reveals that they, too, recognized that

pregnancy's effects differ from in-

dividual to individual. They acknowl-

edged that some pregnant women could

possess the capacity to perform all

routine and emergency tasks required

of a stewardess. On cross-examination,

Eastern's principal expert witness said

that he permits his pregnant patients,

depending on their individual capa-

cities and experience, to continue to

work, ride horses, ski, and water ski.

66a

Another airline witness testified that

he allows his pregnant patients at 20

weeks to play tennis, and that from his

observation a stewardess's duties were

not more exhausting than tennis.

All of the experts agreed that

miscarriage, which occurs unpredictably

in about ten percent of all pregnancies

and for which no effective treatment

exists, could incapacitate a stewardess

if it happened during a flight. The

experts also agreed, however, that

miscarriages are preceded by obvious

and recognizable symptoms that would

permit, in the vast majority of cases,

a stewardess to remove herself froma

flight sequence. Also, the testimony

disclosed that 90 percent of all mis-

Carriages occur within the first 12

weeks, a period, as the district court

noted, during which Eastern's steward-

esses have been flying routinely.

67a

The record establishes that

Eastern's mandatory leave rule evolved

from policies that were inherently dis-

criminatory in their treatment of wo-

men. From the late 1950's until 1972,

Eastern hired only single women as

flight attendants; during this period

males were excluded. Until the mid-

1960's, Easteri. fired any woman who

married. Up to 1965, Eastern also

fired any woman who became pregnant.

It retained this option until 1970,

at which time without conducting any

study to determine whether pregnancy

impairs stewardesses' ability to work,

it adopted the rule requiring ste-

wardesses to take unpaid leave when they

became pregnant. Although aware that

other airlines safely operated with

less restrictive policies, Eastern has

made no effort to administer its policy

on an individual basis.

68a

There is no dispute that Eastern's

rules dealing with pregnancy differ

from its regulations for other physical

conditions. Apart from its pregnancy

policy, the airline has no written

guidelines governing fitness of its

flight attendants; nor does it

routinely examine them. Eastern's

medical director testified that the

airline's normal method of handling

physical and mental disabilities, other

than pregnancy, is to rely upon self-

monitoring. If a stewardess, who is

not pregnant, fails to remove herself

from a flight when she is incapable of

performing, the airline expects com-

plaints from fellow workers or pas-

sengers to reach the medical department,

which investigates each individual

case as necessary. Eastern permits

stewardesses with controlled diabetes

and centrolled epilepsy to fly under

69a

Supervision of the medical department,

even though medical experts testified

that these conditions are more likely

to be disabling than pregnancy. The

district court found, and Eastern

does not dispute, that maternity

is the only disability for which

Eastern requires stewardesses to take

leave without pay.

The district court noted that

Eastern's enforcement of its own policy

is remarkably lax. A number of stew-

ardesses testified to having worked

while pregnant without experiencing

difficulties, Eastern's only methods

of ensuring compliance are voluntary

reporting and visual detection. As

a result and as Eastern is aware,

stewardesses commonly fly through the

12th and 20th weeks of pregnancy.

Eastern recounted incidents of ste-

wardesses removing themselves from

70a

flight sequences because of pregnancy-

related disabilities; on these occasions

the stewardesses followed the practice

approved for other sicknesses or dis-

abilities. Eastern did not produce,

however, any evidence that its lax

administration of its rule creates

any risk to its passengers.

While this case was pending on

appeal, Eastern altered its leave

policy to comply with New York io

The new regulations, which Eastern terms

"interim," allow a stewardess to continue

workinc while pregnant as long as her

doctor or Eastern's medical department

certifies her capability. The new

policy affords a stewardess sick leave

benefits only after a doctor certifies

that she is unable to continue working.

Without objection from the ap-

pellees, Eastern supplemented the

record by filing a copy of its

current regulations.

7la

Before that time a pregnant stewardess,

if she desires not to work, must take

unpaid leave. The adoption of this rule

further supports the district court's

conclusion that the mandatory ban of

all pregnant stewardesses was not a

business necessity. The new policy

demonstrates that individual evalu-

ation is a suitable alternative that

does not sacrifice airline ieee

The district court's judgment re-

quiring Eastern to modify its mandatory

pregnancy leave policy by evaluating

stewardesses on an individual basis is

amply supported by the record, and it

conforms precisely to the principles

Eastern's explanation of its new

policy discloses that United, which

prevailed in Condit v. United Air

Lines, 558 F.2d 1176 (4th Cir. 1977),

has revised its rule to conform to

New York law. See United Air Lines,

Inc. v. State Human Rights Appeal

Board, 61 App. Div. 2d 1010 (2d Dept),

appeal denied, 44 N.Y.2d 648, cert.

denied, 439 U.S. 982 (1978).

72a

explained in Albemarle Paper Co. v.

Moody, 422 U.S. 405, 425 (1975), and

Robinson v. Lorillard Corp., 444 F.2d

791, 798 (4th Cir. 1971). The district

court, however, did not have an oppor-

tunity to consider Eastern's new

policy. Therefore, I would remand

this case with directions to the dis-

trict court to consider the propriety

of amending its decree in the light

of the regulations that Eastern has

now adopted.

73a

MURNAGHAN, Circuit Judge, concurring in

part and dissenting in part:

With respect to the special provision

causing a pregnant employee to lose

seniority accrued as a flight attendant

in the event of transfer to a position

not directly related to flight attendant

work, I am in complete agreement with the

majority. Sickness and injury are ex-

ceptions but pregnancy is not. I fail

to perceive any justifiable reason for

according pregnant employees, neces-

sarily all female, less favorable

seniority treatment than that accorded

any other employee who is obliged for

reasons of physical condition tempor-

arily to cease flight service. Nashville

Gas Co. v. Satty, 434 U.S. 136 (1977).

However, I do not agree entirely

with the disposition which the majority

has decided is appropriate with respect

to a rule which Eastern Airlines, Inc.

74a

had adopted requiring that, immediately

upon pregnancy, an employee without ex-

ception became ineligible for flight

service and, absent a transfer to other

employment, had to enter unpaid maternity

leave status until after termination of

the pregnancy by birth of a child or

otherwise and the return of the employee

following recover from any attendant

incapacity. The district court did

acknowledge a limited validity for the

rule but restricted its application to

the third trimester (i.e. after the

twenty-eighth week). The majority would

permit enforcement of the rule during the

second and third trimesters, but not the

first (i.e., not during the first thir-

teen weeks). I respectfully submit that

reasons indicating a substantial growth

in the safety risks, even in the first

thirteen weeks, suffice to allow enforce-

ment of the rule as promulgated by Eastern.

75a

Title VII has generated enough liti-

gation that cases under it have achieved

a language, if not altogether a iife, of

their own. Predominantly concerned with

race and sex, they first command an

inquiry into whether there has been, at

least prima facie, discrimination. Apart

from blatant examples, which would re-

quire little in the way of a special

lexicography, the cases have generally

spoken in terms of disparate treatment

and disparate impact as conditions which,

when established, demonstrate the exis-

tence prima facie of discrimination.

The cases, for these initial pur-

poses, break down into at least two very

distinct categories, one of which has

little or no pertinence to our present

inquiry. In all the cases where dis-

crimination is asserted, there is a

palpable difference between the favored

and the disfavored individuals or groups

/oa

of employees or prospective employees.

Without one, indeed, it would be diffi-

cult if not impossible to identify race

or sex, standing alone, even as a pos-

sible, let alone a probable cause for

difference in treatment to the dis-

advantage of the minority group member or

the woman. A black is distinguishable

from a white, a man from a woman, through

simple observation.

The heart of anti-discrimination can

be summed up by the observation that

while there is a difference it does not,

and, but for exceptional circumstances,

may not make a difference. The mere fact

of skin hue, or physical configuration,

is essentially irrelevant to how well a

job can be performed and so normally may

not be taken into account. Employers

have on occasion, where the differentia-

tions on grounds of color or of sex

admittedly do not, of themselves, allow

77a

different treatment, shifted ground to

something less immutable than skin color

or other permanent physical differentia-

ting characterist’ :; and introduced

standardized testi..g, avowing that the

purpose is solely to secure better

qualified employees, regardless of race

eae: The test may suffice to provide

an acceptable basis for hiring practices,

although statistically a minority or

women do less well on the tests, if the

tests are "job-related"; if they bear a

"manifest relationship to’ the employment

in question." New York City Transit

Authority v. Beazer, 440 U.S. 568, 587 &

n.31 (1979); Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1975); Griggs v.

Duke Power Co., 401 U.S. 424 (1971).

Those are cases, however, involving

a total ban on the differentiating and

As is also Teamsters v. United

States, 431 U.S. 324 (1977).

78a

immutable race and sex characteristics to

justify less favored treatment to a

minority or female individual or group,

since they bore, in the posture of the

cases as they arose, in no way on qualifi-

cations to perform the work. Instead,

attempted justifications for treating the

plaintiff or plaintiffs less well related

only to supposed acculturation aspects of

the job applicant which were not unchange-

able and which could be improved to his

or her benefit. Our present case is very

different in that an immutable differen-

tiating characteristic is the aspect of

things on which difference in treatr.ent

is based, and is a condition which cannot

be altered to the individual's benefit

with the passage of time. On the con-

trary, as time goes on, pregnancy can

only continue to increase the reasonable-

ness of the differentiating treatment

based on sex itself, until, by the third

79a

trimester, at the latest, all partici-

pants in the controversy agree that it is

proper to treat pregnant women different-

ly than men (and non-pregnant female

flight emma.

Hence, to solve the questions pres-

ently before us, we should direct our

attention to other cases, in which the

physical idiosyncracies associated with a

particular race or a particular sex are

the very basis for the differentiating

treatment.

Our first question, of course, is

whether the sex or racial identifying

characteristic can ever, in and of

itself, be a justifiable, non-discrim-

Since the result achieved by the

majority agrees that such differentia-

ting treatment is also proper for the

second trimester, all that may be said

about the third trimester would apply

with equal force and effect to the

second. The scope of my disagreement

with the majority is, thus, restricted

to the first thirteen weeks of pregnancy.

80a

inatory grounds for according non-

identity of treatment. The two cases in

which the Supreme Court has addressed the

question both have answered in the

affirmative. General Electric Co. v.

Gilbert, 429 U.S. 125 (1976); Nashville

Gas Co. v. Satty, 434 U.S. 136 (1977).

In Gilbert, the employer had a sick

leave pay arrangement extending to vir-

tually all kinds of sickness. On the

grounds it was not an illness, General

Electric did not pay employees who had to

go on leave because of pregnancy. In

determining whether it constituted dis-

crimination not to pay its pregnant

Satty, even as in the present case,

involved two different employer programs

which were under attack: (1) loss of

seniority upon pregnancy, and (2) denial

of sick leave pay to pregnant employees.

The finding of impermissible discrimin-

ation, insofar as loss of seniority was

concerned, has already been cited and

relied on at the outset of this opinion.

With respect to the denial of sick leave

pay, the Court adhered to Gilbert's

conclusion.

8la

female employees the sick leave allow-

ance, the Supreme Court was faced with a

quandary of some dimensions. The women

could and did argue that, because of the

exclusion, men got the benefit in all

cases, whereas the women got the benefit

for only some, not all of the cases.

Yet, if the employer had chosen to pay

the benefits to women disabled by preg-

nancy, the men could have contended with

equal logical force, that both categories

got only the benefits for heart, liver

and other ailments to which both sexes

were subject, but women alone also got,

while men did not, important and substan-

tial economic benefits associated with

pregnancy, and so associated with women

only.

While the argument has less emo-

tional appeal at a time when overcoming

past discrimination against women is in

the forefront of the minds of most of us,

Footnote continued on following page.

82a

The fact was that there was no way

to treat the two categories identically.

Up to now, and presumably forever, men

cannot become pregnant. So different

treatment will inevitably result either

way. It is hardly surprising that, faced

with a "damned if you do and damned if

you don't" situation, the Court concluded

that, since the amount paid in women's

benefits equalled or exceeded the bene-

fits paid for men, even withceut including

pregnancy as an event giving rise to

eligibility for payment, there was no

discrimination.

Likewise, in Satty, the Court deter-

mined that a denial of benefits to women

for pregnancy was facially neutral, so

did not create a prima facie case of

Footnote continued from previous page

it, nevertheless, as a matter of pure

logic has as much or as little validity

as the argument advanced by the female

employees.

83a

discrimination. Nevertheless, as the

Court was careful to point out, if the

employees could meet the additional bur-

den of proving pretext, i.e. that the em-

ployer really intended to discriminate,

and only used the facial neutrality as an

excuse, a right to relief would be made

out .

So, as in Gilbert and in Satty, we

must first determine whether pregnancy

makes a difference justifying different

treatment in the circumstances of the

present case or whether prégnancy is only

a difference without making one.

Here we must, except to he extent of

the consequences of a conclusion that

prima facie discrimination was not made

——__—_—___——.

"When confronted by a facially

neutral plan, whose only fault is under-

inclusiveness, the burden is on the

plaintiff to show that the plan discrim-

inates on the basis of sex in violation

of Title VII." (emphasis supplied). 434

U.S. at 144.

84a

out, take our leave of Gilbert and Satty,

for the factual materials from this point

on have so little similarity as to be of

no real assistance in determining whether

the facts of the instant case do or do

not make out prima facie discrimination.

Dealing, as Gilbert and Satty did, with

whether leave associated with pregnancy

must be compensable to avoid a charge of

discrimination is quite different from

deciding whether a requirement that a

flight attendant immediately stop flying

and take leave without pay until termin-

ation of and recovery from any after-

affects of the pregnancy is discrimina-

tory.

In the first place, there is the

added factor of involvement of others

than merely the employer and the employee,

who alone were concerned in Gilbert and

Satty. Outside third parties, namely the

85a

passenger , have an interest which

cannot be ignored.

Second, pregnancy in Gilbert and

Satty was not fragmented into trimesters.

No doubt the impact on the issues there

before the Court was greatest in the

third trimester. Nevertheless, the

relevance of the decisions as to whether

or not there was discrimination on a

prima facie basis in the present case is

remote. The relevant test is a different

one, aS to which an answer must be found

without the assistance of decisive or

even strongly indicative precedent from

the Supreme Court. It is simply whether

", . . the duty resting upon air carriers

to perform their services with the high-

The flight crewmembers also are

third parties directly involved. While

an argument could be constructed that

their interests are bound up in those of

the employer, it is really a personal

concern of crewmembers, the enhancement

of their individual safety, which is

engaged.

86a

est possible degree of safety in the

public interest... combined with the

generally accepted medical evidence

spells out a situation in which danger

in flight service is significantly en-

larged unless disqualification occurs

immediately upon the first knowledge of

pregnancy. If not, discrimination has

been made out. If, on the other hand,

a manifest increase in safety risk is

demonstrated discrimination is convinc-

ingly rebutted. A secondary question

arises, if the manifest increase in

safety risk is demonstrated, whether the

plaintiffs never succeeded in finally

establishing prima facie discrimination

as part of the plaintiffs' case, or

whether, although prima facie discrim-

ination was made out, nevertheless, as an

affirmative defense, a showing of busi-

——-

49 U.S.C. § 1421 (b).

87a

ness necessity or bona fide occupational

qualification by the defendant overcame

the prima facie case.

The nature of airplane accidents is

such that they are, fortunately, extremely

infrequent for the scheduled airlines,

and, on the other side of the coin,

usually so devastating when they do occur

that death of everyone is so inevitable

and virtually immediate that the physical

condition of the flight attendant is not

going to matter one way or the other.

Nevertheless, there are intermediate

situations on which quick and alert

reaction by flight attendants in circum-

stances of great danger and tension may

make all the difference. The medical

evidence supports a conclusion that a

pregnant flight attendant may be somewhat

less able to respond in a complete and

efficacious manner. The testimony unequi-

vocally establishes that, although, if

88a

healthy, a flight attendant during the

first thirteen weeks could perform as

effectively as though she were not preg-

nant, a substantial disability could

occur in the event of a miscarriage.

Miscarriage is defined as the termination

of pregnancy before the twentieth week.

Miscarriage is an illness confined to

pregnancy, and its occurrence in the

first thirteen weeks is frequent ers

that the airline here was justified in

giving the attention it gave to the

increased risk, and in removing pregnant

flight attendants from service immedi-

The overwhelming majority occur in

the first thirteen weeks. Approximately

10% of all implanted pregnancies will ter-

minate in miscarriages. Ninety percent

of these will occur in the first thir-

teen weeks. There is no indication that

incapacitating miscarriages can be pre-

dicted in such a way as to confine

grounding of flight attendants to only

some and not all who are pregnant. The

dangers of miscarriage are real in every

pregnancy. Miscarriages beyond the sixth

week of pregnancy are usually disabling.

89a

ately on learning of the pregnancy.

The airline charged with the safety

of its passengers and crew should be en-

titled to take the change in the risk

factor into account by doing what it rea-

sonably can to preclude any palpable

growth in the risk. It should be enough

in the way of justification to point to

a humanitarian responsibility. However,

were it not, there remains the increase

in the possibility of huge claims for

injury and death occurring because a

pregnant flight attendant, even during

the first thirteen weeks, was serving

the passengers and was handicapped or

incapacitated in a crucial manner at

a crucial time.

Having so determined, we have, just

as the Supreme Court in General Electric

Co. v. Gilbert had, a situation where,

the facts having been considered, an

exclusion based on pregnancy was "not a

90a

gender-based ac ‘aan at all." Id.

429 U.S. at 136. In sum and substance,

the gender variation, while it only is a

difference prior to pregnancy, made a

difference once pregnancy had occurred

and the disqualification from flying

proceeded, not from sex, but from dis-

ability.

That, of course, does not end the

matter, for the possibility of pretext

still remains. While Nashville Gas Co.

v. Satty, 434 U.S. 136 (1977), has held

that the denial of sick pay for preg-

nancy, although facially neutral, may

nevertheless be found discriminatory

upon proof of pretext on the part of the

employer, it is by no means clear that

Satty, concerned only with the interests

of employer and employee, would extend

Elsewhere the Court said "the res-

pondents have not made out the requisite

showing of gender-based effects." Id. at

S27

9la

to a situation involving responsibility

to third parties such as other flight

crewmembers and passengers. Assuming

that it does, nevertheless, the posture

of this case effectively repudiates the

existence of pretext. This is so because

90% of Eastern's flight attendants are

female, reflecting a strong past practice

favoring (men flight attendants could

well argue "discriminatorily favoring")

women for that position. The physical

appearance of flight attendants is not

Significantly affected during the first

thirteen weeks of pregnancy. Thereafter,

a majority of the Court is prepared to

hold that the airline would not be act-

ing discriminatorily if it discontinued

flight service during the continuation

of pregnancy in the second and third

trimesters.

The airline must go to expense to

identify and train flight attendants.

92a

It is not lightly to be supposed that

it goes to that expense in an employment

area which heavily favors females, only,

for no valid reason, to force them off

flight duty during the first thirteen

weeks. During those thirteen weeks, when

pregnancy is not visually evident, knowing

that from the thirteenth week on the air-

line might properly disqualify them for

flight service during the pendency of the

pregnancy, it strains credulity beyond

the reasonable point to hold that it is

to be conjectured, assumed or concluded,

in the absence of direct evidence, that

those responsible for the decisionmaking

of the airline were in fact acting pre-

textually and discriminating on the

grounds of a difference uniquely sex-

related. No respectable reason has been

advanced to find a pretext in a policy

which will complicate personnel problems

for the airlines, in a position for which

93a

it has traditionally preferred females,

whose physical appearance will not be

altered, and whose removal from flight

service after thirteen weeks is clearly

proper and not discriminatory. It would

be too farfetched in the face of such

considerations to allow an argument of

pretext distilled from other, evidently

distinguishable cases without such over-

whelming countervailing considerations.

This is not to say that as an airline

executive I should have reached the same

conclusion. The careful and detailed

opinion of the district judge outlines

substantial basis for a belief to the

contrary. But it is not incumbent on

the airline official to be wise -- only

that he or she be non-discriminatory.

With respect to that aspect of the

decision, I consequently would reverse

the decision of the district judge. I

find no sufficient basis for a finding

94a

of discrimination in the first Acai

or secondarily on the basis of pretext.

In this connection, I would point out one

advantage of my conclusion. It insures

the same result whichever airline and

whichever district judges are involved,

assuming no other indicators of sexual

discrimination are present. It, there-

fore, avoids the undesirable result which

I fear the majority decision will bring

about of differing results depending on

factfindings in individual cases where

the issue really is essentially the same

It should be emphasized that there

is no occasion, on the facts of the case,

to explore whether we have a situation

where prima facie discrimination was not,

in the end, made out or whether the

defendant successfully met the burden of

rebutting on the grounds of business

necessity or bona fide occupational

qualification a prima facie case estab-

lished by the plaintiffs. The facts on

which I rely to demonstrate a safety

problem of significant proportions, which

cannot be confined in advance to only

some of the cases of pregnancy are not in

dispute.

95a

throughout the industry. Cases favoring

Eastern by deciding that the immediate

unpaid leave requirement effective upon

the first knowledge of pregnancy was

valid are:

ie Harriss v. Pan American

World Airways, 437 F. Supp. 413

(N.D. Calif. 1977);

Ze EEOC v. Delta Air Lines,

Inc., 441 F. Supp. 626 (S.D. Tex.

1977), reversed and remanded on

purely procedural grounds, F.2d

(5th Cir. 1980);

a Air Line Pilots Ass'n

v. Western Air Lines, Inc., 22

E.P.D. ¥ 30,636 (N.D. Calif. 1979);

4. Condit v. United Airlines,

Inc., 12 E.P.D. 4 11,195 (E.D. Va.

1975), affirmed as not clearly erro-

neous, 558 F.2d 1176 (4th Cir.

1977), cert. denied, 435 U.S. 934

(1978).

96a

Cases going the other way are:

Rs McLennan v. American

Airlines, Inc., 440 F. Supp. 466

(E.D. Va. 1977);

. In re National Airlines,

Inc., 434 F. Supp. 249 (S.D. Fla.

1977);

ae The case under current

consideration, Burwell v. Eastern

Airlines, Inc., 458 F. Supp. 474

(E.D. Va. 1978).

Nor is the argument persuasive that

the rule requiring discontinuation of

flight service even in the first thirteen

weeks because of pregnancy should be

deemed discriminatory because of wide-

spread failure of flight attendants to

honor the rule. The argument runs that

the rule unfairly discriminates against

the forthright and honest, in favor of

the dissimulative and dishonest employees

who violate a company rule and conceal

97a

existence of pregnancy. The short answer

is that Title VII does not exist to

create protected rights in dishonest

employees. Absent a showing that Eastern

connived in or winked at the failure to

report, and none is shown to have existed

in this — that should not be a

grounds for invalidating an otherwise

reasonable rule.

In short, it was a facially neutral

treatment of a difference between men and

women created by another force than human

beings, and apparently immutable, which

has an adverse impact on flight safety.

Nothing suggests that Eastern ig-

nored knowledge of pregnancy and permitted

the pregnant flight attendant to continue

to fly. At most the plaintiffs develop

from their evidence that Eastern could

more effectively have ferreted out preg-

nant flight attendants. But that is well

short of knowing disregard of the rule,

which would support a finding of pretext.

At most, carelessness has been made out,

and that does not amount to bad faith or

evil motive.

98a

There is no justification for pursuing a

pretext claim, wholly rebutted by other

evidence in the case. To the extent of

the holding that mandatory discontinua-

tion of flight service is discriminatory

when enforced in the first trimester I

would reverse. Judge Russell and Judge

Widener have authorized me to say that

they concur in my dissent.

99a

WIDENER, Circuit Judge, concurring and

dissenting:

Although I concur completely in

Judge Murnaghan's separate opinion, a few

additional words are, with respect, in

order in light of what the majority

finds, or fails to find, in the record

regarding the effect of pregnancy during

the first thirteen weeks.

The majority's treatment of the

first thirteen weeks of pregnancy (Part

II of Judge Sprouse's opinion) is based

on the similar premises that the experts

"point to the virtual unanimous conclu-

sion that a pregnant flight attendant can

adequately perform routine and emergency

duties through the thirteenth week of

pregnancy." slip opinion, p. 12, and that

"there is no credible evidence supporting

Eastern's contention that pregnancy

during the first thirteen weeks is a

factor that might affect the safety of its

100a

passenger operation." Slip opinion, p.

27. I believe both of them are demon-

strably unsupported by the record.

Even a hurried reference to the

appendix shows an unrefuted example of

an actual occurrence which supports my

view. On an Eastern flight from Boston

to Washington with a stop at Lexington,

one stewardess had to work the trip by

herself because the other stewardess,

in her first trimester, was incapaci-

tated by morning sickness. If the

Captain had known about it, he would

have had to cancel the trip in order

to comply with FAA requirements. FAA

requirements were violated by flying

the trip with only one stewardess able

to perform her duties. (App. 1272,

1282).

An equally obvious example is the

testimony of Dr. William Cooper whose

specialty is obstetrics and gynecology.

10la

Dr. Cooper has been a practicing physician

since 1953 and is a licensed pilot. He

has delivered somewhere between 7,000 and

10,000 babies and has seen many more

patients than that.

Dr. Cooper testified in small part

as follows:

"Q. Can women ordinarily predict

when they will be affected by

morning sickness?

A. No. I don't believe they can

predict it at all, Ms. Perdue. It

can happen at any time. Come out

of the blue just like that; no

warning.

Sometimes they will even

notice a projectile vomiting and

difficulty getting to the bathroom

in order to not mess things up.

It is not predictable.

Q. Are dizziness and fainting

sometimes common the first tri-

mester?

A. Very common."

(App. 1134)

x kkk tk

Q. It is possible to predict when

a pregnant woman will faint or which

102a

women will suffer from this?

A. It is not possible to predict

which women will suffer from it.

It is possible, otherwise, to

say, Stay out of a closed-in environ-

ment, a hot environment; stay out of

a Situation where this might occur.

An when you have finished eat-

ing dinner, stand up slowly; don't

get out of bed rapidly in the morn-

ing, and so forth.

Q. In you opinion, would this

tendency to faint or dizziness be

aggravated by motion?

A. Yes, I think it would.

Once again, the body has to

adjust to another irritant or some-

thing occurring to the body's

environment.

(App. 1136)

" 2 2 FT

Q. Do you believe it [permitting

pregnant flight attendants to work

on aircraft] would compromise the

safety of passengers and other crew

members on the aircraft?

A. I do.

(App. 1175)

The nine physicians who comprised

the Air Transport Association Medical and

103a

Sanitation Committee recommended by a

8 to 1 vote that flight attendants should

be taken off flight status as soon as they

are aware of pregnancy. (App. 1266).

The above uncontradicted incident,

the brief excerpt from the testimony of

Dr. Cooper, and the unrefuted recommenda-

tion of eight of the nine physicians

comprising the Air Transport Association

Medical and Sanitation Committee show,

I submit, beyond doubt that the position

of the majority that there is a "virtual

unanimous conclusion that a pregnant

flight attendant can adequately perform

routine and emergency duties through the

thirteenth week of pregnancy," and its

similar position that "there is no cred-

ible evidence supporting Eastern's con-

tention that pregnancy during the first

thirteen weeks is a factor that might

affect the safety of its passenger oper-

ation" are not supported by the record.

104a

To simply dismiss as incredible the

evidence of the physician who testified

contrary to the findings of the majority

is not a sufficient answer. I suggest

that it may be explained by the fact that

neither the opinion of the district court

nor either of our opinions (Judge Sprouse

and Judge Butzner) which make up a major-

ity permitting pregnant stewardesses to

fly during the first thirteen weeks,

even mentions the statutory standard

which is deeply involved in this case,

which is, of course, 49 U.S.C. § 1421(b).

That statute requires in terms that the

FAA administrator shall give full con-

Sideration to "the duty resting upon air

carriers to perform their service with

the highest possible degree of safety."

A stewardess who is vomiting in the

lavatory cannot participate effectively

in an emergency evacuation. Neither can

one who is fainting or miscarrying. If

105a

for no other reason than because the

record will support only the conclusion

that fainting and vomiting cannot be

predicted, it is simply not possible to

operate an aircraft with the "highest

possible degree of safety" with a stew-

ardess flying who may well be incapaci-

tated just when she is needed most. I

suggest that the absence of any mention

of the statutory requirement in the

opinion of the district court and the two

majority opinions of this court is due to

the fact that there is no answer to it.

But the question must be answered before

liability may be established. A finding

of liability with no answer given, or

even attempted, to what is obviously one

of the key questions in the case, is, I

submit, unjustified.

106a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION *

CATHERINE M. BURWELL, )

et al., )

)

Plaintiffs, )

)

Vv. ) Civil Action

) No. 74-0418-R

EASTERN AIR LINES, INC., )

et al., )

)

Defendants. )

--AND--

SHARYN D. CLAYTON,

Plaintiff,

Civil Action

No. 75-C688-R

EASTERN AIR LINES, INC.,

ee eee eee ee eee ee

Defendant.

*Petitioners have reprinted the opin-

ion of the United States District Court

for the Eastern District of Virginia

Richmond Division as originally circula-

ted by that court.

107a

MEMORANDUM

Plaintiffs, female employees of the

defendant, Eastern Air Lines, Inc.

(Eastern), bring this action under Title

VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e et seg., to

redress alleged sexually discriminatory

employment practices. Local 550 of the

Airline Stewards and Stewardesses Asso-

ciation (local 550) and Local 553 of the

Transport Workers Union of America (TWU

Local 553) are also named as defendants.

The plaintiffs seek declaratory, injunc-

tive and monetary relief. Jurisdiction

is attained pursuant to 42 U.S.C.

§ 2000e-5(f). A trial has been held on

the issue of liability and the Court is

prepared to issue its findings of fact

and conclusions of law.

I. FINDINGS OF FACT

A. Parties

108a

(1) The action styled Burwell, et

al. v. Eastern Air Lines, Inc., at al.

was brought by Catherine Burwell and Jean

Proctor against Eastern and the two union

defendants alleging sex discrimination in

the maintenance and administration of the

maternity and benefits policies applicable

to Eastern flight attendants.

(2) Sharyn Clayton filed a similar

action against Eastern in the United

States District Court for the Northern

District of Alabama.

(3) Plaintiff Burwell, who has been

an Eastern flight attendant for approxi-

mately twelve years, had had the follow-

ing maternity history since 1970:

(a) Burwell notified Eastern May

13, 1970 that she was pregnant. She

gave birth on October 7, 1970.

(b) Burwell again became pregnant

in late 1974. That pregnancy termin-

ated in a miscarriage in November,

109a

1974.

again advised Eastern that she was

pregnant. Her expected delivery

date was mid-August, 1976.

(4) Plaintiff Proctor, who has been

an Eastern flight attendant for approxi-

mately eleven years, has had the follow-

ing maternity history since 1970:

(a) Proctor notified Eastern

approximately May 15, 1972 that she

was pregnant. She gave birth on

September 21, 1972. -

(b) Proctor notified Eastern

approximately September 3, 1974 that

she was again pregnant. She gave

birth on January 28, 1975.

(5) The defendant Eastern is a

Delaware corporation doing business in

Virginia where it is engaged in the

transportation of passengers across state

lines. Eastern employs more than fifteen

110a

persons and has, at all times material to

this action, been an employer engaged in

an industry affecting commerce within the

meaning of 42 U.S.C. § 2000e-(b), (g) and

(h).

(6) Locals 550 and 553 (the Union)

are labor organizations engaged in an

industry affecting commerce and having

more than fifteen members within the mean-

ing of 42 U.S.C. § 2000e-(d) and (e).

At all times material hereto prior to

June 1974, Local 550 was the recognized

collective bargaining representative

for all Eastern flight attendants. In

June 1974, Local 553 was formed as a

successor to Local 550 with respect to

the employees of Eastern. Since June

1974, Local 553 has been the recognized

collective bargaining representative for

all Eastern flight attendants.

(7) The plaintiffs are and have been

members of the Union at all times

llla

material to this litigation.

B. The Issues

(8) At issue in this litigation is

the legality of the various components of

Eastern's maternity policy. Broadly

speaking, the plaintiffs challenge: (a)

the separate treatment of pregnancy under

Eastern's Group Comprehensive Medical

Insurance; (b) the exclusion of pregnancy

from Eastern's paid sick leave policy and

the impact of such exclusion on other

conditions of employment; (c) the policy

that pregnant flight attendants lose all

accumulated seniority if they transfer

to ground positions rather than taking

maternity leave; (d) the time limits

placed on guaranteed rights to rein-

statement of flight attendants taking

maternity leave and (e) the requirement

that flight attendants must commence

maternity leave immediately upon knowl-

edge of pregnancy. The policies under

ll2a

attack are contained in a collective bar-

gaining agreement entered into by Eastern

and the Union.

Cs Class Action

(9) Upon motion of Eastern, the

Clayton action was transferred from the

Northern District of Alabama to the

Eastern District of Virginia. The

Burwell and Clayton actions were consol-

idated for all purposes by order of the

Court dated January 27, 1976.

(10) Upon motion of Eastern, this

litigation was certified a class action

pursuant to Rule 23(b) (2), Fed. R. Civ.

P. The class is defined as all female

flight attendants employed by Eastern at

any time since October 27, 1972, or who

may be so employed in the future, and who

are, were, or may in the future be sub-

ject to Eastern's maternity leave policy.

(11) Notices of the pendency of this

action were mailed to all class members

113a

on November 10, 1975 and January 29,

1976. In addition, notices were posted

for a period of twenty days at all places

throughout the Eastern system where

flight attendant notices are customarily

posted.

(12) The plaintiffs have now moved

the Court (a) to redefine the class to

include ground employees and (b) to ex-

tend the time frame back to July 2, 1965.

The Court would be inclined to include

ground employees and to adopt a July 2,

1965 cutoff date if the request for class

certification were being presented for

the first time. See Briggs v. Brown and

Williamson Tobacco Corp., 414 F. Supp.

371, 377-378 (E.D. Va. 1976). At this

late date, however, broadening the class

in the requested manner would, in the

Court's view, be inappropriate.

D. History of Eastern's Maternity

Related Policies

11l4a

(13) Prior to 1973, Eastern refused

to hire married persons for flight atten-

dant positions. Between 1958 or 1959 and

1973, Eastern also limited employment of

flight attendants exclusively to women.

Accordingly, the impact of the "singles

only" hiring policy fell primarily upon

women. Prior to the mid-1960's, Eastern

also maintained a policy of terminating

female flight attendants who became

married. This policy was never applied

to male flight attendants.

(14) From 1931 until May 1, 1965,

Eastern automatically terminated all

flight attendants who became pregnant.

This policy was modified in 1965 to give

the Company the option to fire flight

attendants who became pregnant. From

March 21, 1970 to the present, Eastern's

policy has been that flight attendants

must commence unpaid maternity leave

immediately upon knowledge of pregnancy.

115a

As part of this policy, flight attendants

On mandatory maternity leave have guaran-

teed rights to reinstatement within

ninety days aiter delivery under normal

circumstances or within six months after

delivery if the additional time is needed

for medical reasons.

(15) From March 21, 1970 until April

26, 1973, it was Eastern's policy that

flight attendants could not accrue sen-

iority during mandatory maternity leave.

As a result of collective bargaining

between Eastern and the defendant Union,

this policy was changed to allow accrual

of seniority. Flight attendants whose

seniority dates were adversely adjusted

as a result of maternity leave occurring

after July 1, 1972, could, upon request,

have such seniority restored.

(16) On April 12, 1974, in connec-

tion with the settlement of Healen v.

Eastern Air Lines, Inc., Civil Action No.

1l6a

1897 (N.D. Ga.), Eastern agreed to

restore the seniority of any female

flight attendant whose seniority had been

adversely affected as a result of mater-

nity leave occurring prior to July l,

1972. At Atlanta, and perhaps at other

bases, attendants who were identified as

having taken maternity leave prior to

July 1, 1972, were sent individual let-

ters setting forth the facts of the

Healen settlement and requesting that

they respond in writing within sixty

days, stating their name, employee number

and dates of maternity leave. Eastern

subsequently automatically restored all

seniority for flight attendants at its

Atlanta base, whether or not they res-

ponded to the individual letters explain-

ing Healen.

(17) Although plaintiff Proctor did

not accrue seniority during her maternity

leave in 1972, and did not request restor-

ll7a

ation of seniority under either the 1973

contract change or the Healen settlement,

Eastern nonetheless restored her senior-

ity sometime between January 1, 1974 and

July 1, 1974. Mrs. Proctor lost no sen-

iority during her 1974-1975 maternity

leave.

E. Medical Insurance Plan

(18) Eastern provides a Group Com-

prehensive Medical Insurance Plan for

eligible flight attendants and pays 100%

of the premiums for such coverage.

(19) Eastern's Group Comprehensive

Medical Insurance Plan has provided at

all relevant times herein the payment of

80% of all covered major medical expenses

after the satisfaction of a $100 per

person calendar year deductible.

(20) Eastern's Group Comprehensive

Medical Insurance Plan provided and con-

tinues to provide for the payment of

covered in-hospital expenses at the fol-

118a

lowing rates: For March 21, 1970, through

June 30, 1973 -- payment of the first

$750 plus 80% of all additional covered

expenses; from July 1, 1973, through July

31, 1974 -- payment of the first $1,200

plus 80% of all additional cowered ex-

penses; from August 1, 1974, through the

present -- payment of the first $1,500

plus 80% of all additional covered ex-

penses.

(21) Under its medical insurance

plan effective February 4, 1976, Eastern

provides benefits for pregnancy expenses

as follows: for normal deliveries, the

plan will reimburse the first $300.00 of

covered expenses, the employee will pay

the next $300.00, and then 50% of all

covered expenses over $600.00 will be

reimbursed by the plan. For miscarriages

and abortions, the plan will reimburse

the first $200.00 of covered expenses,

the employee will pay the next $200, and

119a

then 50% of all covered expenses over

$400.00 will be reimbursed by the plan.

Although the cost of a normal pregnancy

will vary in different parts of the coun-

try, the average pregnancy at the present

time costs approximately $1,000.00.

(22) From approximately 1968 until

February 4, 1976, Eastern's Group Com-

prehensive Medical Insurance Plan pro-

vided benefits for pregnancy expenses

(hospital and obstetrical) as follows:

normal delivery -- up to a maximum of

$250.00; miscarriage or abortion --up to

a maximum of $150.00.

(23) Eastern's Group Comprehensive

Medical Insurance Plan provides the

following limitations on coverage:

(a) Payments for out-patient

treatment of mental and nervous

disorders limited to 50% of covered

expense or $10 per visit, whichever

is less, with a maximum of 50 visits

120a

per year and $50,000 lifetime;

(b) No payments for services or sup-

plies in connection with routine

physical examinations or not reason-

ably necessary for the medical care

of the patient's sickness or injury;

plies resulting from an occupational

injury or illness for which Work-

men's Compensation benefits will be

available;

(d) No payment for services or sup-

plies furnished by or for any

government;

(e) No payment for services or sup-

plies received as a result of an

act of war;

(f£) No payment for cosmetic surgery

unless for an accident suffered

while covered;

(g) No payrant for examinations to

determine need for adjustment of

l2la

glasses or hearing aid;

(h) No payment for treatment of

periodontal or periapical disease or

any condition involving teeth except

treatment for a fractured jaw or for

an accidental injury to natural

teeth;

(i) No payment for treatment of

weak, strained, flat, unstable or

unbalanced feet, or for metatarsal-

gia or bunions except open cutting

Operations, or for corns, calluses,

or toenails unless prescribed by a

physician;

(j) No payment for nursing, speech

therapy, or physiotherapy rendered

by the employee or by the spouse,

child, brother, sister or parent of

an employee or an employee's spouse;

(k) No payment for anything not

prescribed or ordered by a physician;

(1) No payment for vaccinations or

122a

innoculations for flu, polio, small-

pox, diptheria, etc.;

(m) No payment for eyeglasses or

orthopedic shoes;

(n) No payment for the difference

between a semi-private room rate and

a private room rate;

(Oo) No payment for charges that are

not reasonable, customary, necessary

and prescribed by a physician for

treatment of any non-occupational

injury or illness;

(p) Payment for hospital room and

board charges during the first seven

(7) days after birth of children of

covered employees; and

(q) Payment for up to 80% of the

reasonable and customary fee for

required surgery.

(24) At all times material to this

litigation, Eastern's medical benefits

plan has provided major medical benefits

123a

for the following complications of preg-

nancy: Hyperemsis Gravidarum (pernicious

vomiting); eclampsia of pregnancy (tox-

emia with convulsions); Caesarean sec-

tions after six months of pregnancy;

intra-abdominal surgery after pregnancy

terminates; and surgery for extra-uterine

pregnancy. Such benefits are equivalent

to those for any other covered illness or

injury.

(25) As of June 1974, Eastern esti-

mated that it would cost an additional

$5.72 per flight attendant per month, or

$68.84 per flight attendant per year, to

provide medical benefits for normal preg-

nancies on the same basis as regular med-

ical benefits. The cost of the 1976

increase in benefits for miscarriages,

abortions and normal deliveries was esti-

mated to be $67,000 per year for flight

attendants alone and $448,100 for all

Eastern employees who received similar

124a

increases.

(26) Women comprise approximately

90% of the flight attendant group, and

receive about 95% of the benefits paid

out under the medical insurance plan.

F. Sick Leave, Maternity Leave

and Disability

(27) Eastern's employment benefits

package is the product of negotiations

between Eastern and the Union. The var-

ious policies are contained in the col-

lective bargaining agreement. For the

purposes of determining the eligibility

for and extent of the various benefits,

a distinction is made between active

employees, i.e., those on the payroll,

and inactive employees, i.e., those not

on the payroll. Active employees include

those actually working, those on paid

sick leave, and those on vacation. Inac-

tive employees include those on medical

leave without pay (including short term

125a

and long term disability), those on per-

sonal or emergency leave, those on mili-

tary leave, and those on maternity leave.

In most material respects, the benefits

afforded inactive flight attendants are

equivalent to those afforded active

flight attendants. In this litigation,

the relevant comparison involves the

benefits available to flight attendants

On paid sick leave and those afforded

flight attendants on maternity leave.

(28) Under the collective bargaining

agreement, a flight attendant who is un-

able to make a scheduled flight because

of an illness or injury is placed on sick

leave. Flight attendants placed on sick

leave continue to receive their base pay

to the extent of accrued sick leave

allowance and are considered active

employees.

(29) Sick leave allowance is accrued

as follows: From October 9, 1967 through

126a

April 26, 1973, flight attendants accrued

sick leave at a rate of 1 1/6 days per

month of active service to a maximum of

120 days accrued sick leave. Although

flight attendants were not eligible for

sick leave benefits during the first

three months of active service, they

accrued sick leave credit during that

period. From April 26, 1973, until

December 31, 1974, flight attendants

accrued sick leave allowance at a rate of

2 hours per month during the first 6

months of active service. After six

months of active service, flight atten-

dants accrued sick leave allowance at the

rate of 4 1/2 hours per month for each

month of active service up to a maximum

of 400 hours. Effective January 1, 1975,

flight attendants accrued sick leave

allowance at the rate of 4 1/2 hours per

month for each month of active service to

a maximum of 500 hours.

l27a

(30) Flight attendants who accumu-

late 300 or more hours of sick leave

credit and become sick, will, upon return

to active duty, accumulate sick leave

credits at the rate of 5 1/2 hours per

month rather than 4 1/2 hours per month

until their sick leave bank again equals

the sick leave credits accrued when their

sick leave began.

(31) Flight attendants on paid sick

leave continue to accrue sick leave and

vacation credits at the same rate that

they would if on active employment.

Flight attendants on maternity leave,

however, accrue neither sick leave nor

vacation leave.

(32) When plaintiff Burwell com-

menced her maternity leave on May 14,

1970, she had accrued 47 and 5/6 days of

sick leave. Plaintiff Proctor had ac-

crued 140 hours and 54 minutes of sick

leave prior to the commencement of her

128a

maternity leave on May 15, 1972, and had

accrued 58 hours and 55 minutes of sick

leave when she began her maternity leave

on September 3, 1974. Neither woman was

permitted to apply her earned sick leave

credits to her maternity leave.

(33) Eastern does not allow flight

attendants to apply sick leave credits to

leaves caused by the following conditions:

(a) alcoholism or drinking problems; (b)

drug addiction or drug problems; (c)

intentionally self-inflicted injury or

attempted suicide; (d) pregnancy; (e)

cosmetic surgery or elective plastic

surgery; or (f) routine physical examin-

ations or doctor's appointments, unless

the flight attendant can show that it is

impossible to schedule appointments

during non-working hours.

(34) Eastern allows the use of sick

leave by flight attendants for the fol-

lowing conditions, among others: lung

129a

cancer, sterilization, hernia, psychia-

tric care, injury incurred in a sports

activity, prostatitis or prostatectomy,

injury incurred in an automobile accident,

and vasectomy.

(35) While on paid sick leave,

Eastern flight attendants may continue

their Group Comprehensive Medical Insur-

ance for the duration of their paid sick

leave, and the company continues to pay

100% of the premium payments. Flight

attendants on maternity leave (or other

leave without pay) may continue cover-

age of the Group Comprehensive Medical

Insurance Plan only by personally pay-

ing the required monthly contribution.

(36) Since 1961 or earlier, it has

been Eastern's policy to provide, at no

cost to employees, an accident and sick-

ness plan for flight attendants who are

unable to work because of non-occupation-

al accident or sickness. Benefits under

130a

this sickness and accident plan range

from $25.00 to $110.00 per week and are

payable from the eighth day of disability

or from the expiration of accumulated

sick leave benefits, whichever is later,

up to a maximum of 26 weeks for each

disability period.

(37) Eastern has offered long-term

disability insurance coverage to flight

attendants since 1973. Coverage under

the long-term disability plan is elec-

tive, and the premium costs are borne by

the individual flight attendant.

(38) Flight attendants who take sick

leave due to an injury or illness are

eligible for paid sick leave only to the

extent accrued. After exhaustion of paid

sick leave, flight attendants are eligi-

ble for short-term accident and sickness

benefits. They may then be eligible for

long-term disability benefits under the

elective plan, but only after exhaustion

l3la

of the short-term plan and a six-month

waiting period.

(39) Flight attendants who are on

maternity leave of absence are not eligi-

ble for short-term disability plan bene-

fits or long-term disability plan bene-

fits.

(40) The short-term disability cov-

erage plan excludes the following con-

ditions: (a) injuries covered bv work-

men's compensation or similar legisla-

tion; (b) conditions for which the

employee is not under regular care of a

physician; and (c) pregnancy or its

complications.

(41) The long-term disability plan

excludes the following conditions: (a)

intentional self-inflicted injury whether

sane or insane; (b) injuries resulting

from war or act of war; (c) willful mis-

conduct or commission of a felony; (d)

alcoholism unless the employee is hos-

132a

pitalized for rehabilitation; (e) drug

addiction unless the employee is hos-

pitalized for rehabilitation; (f) preg-

nancy, child birth, or complications

thereof; (g) injuries incurred while

serving in the armed forces of this coun-

try or another country; (h) participa-

tion in a riot; and (i) injuries or sick-

nesses not being treated by a qualified

physician.

(42) Leaves of absence for sickness

or injury may extend for a maximum con-

tinuous period of t

This text is long and has been trimmed here. Open the source document for the complete record.

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.