# Petition — Burwell v. Eastern Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0867%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 450 U.S. 965 ## 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 i 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? ii 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 TABLE OF CONTENTS ....« -« OF AUTHORITIES .... OPINIONS BELOW ..... - JURZSUECTION «2 © s e © @ STATUTES AND REGULATIONS INVOLVED ...+-«« «© «© « « STATEMENT OF THE CAS&: A. B. 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 12 19 iv 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 Vv Table of Contents, Continued B. Page Opinion and Order of the District Cee sw ee Se 6- eee Statutes and Regulations SOVOLVOE 4 « «© 6 & 6 vi 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- 3 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 7 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 5/ 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. 9 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- 7/ 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. 10 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. 1l 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. 12 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. 13 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 9/ had been flying routinely. Id. at 9/ The record reflected no instance Footnote continued on following page. 14 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. 15 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 16 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 18 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 19 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. 20 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. 21 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. 22 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). 23 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. 24 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 25 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. 26 # 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. 27 (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- 28 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. 29 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. 30 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. 31 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 32 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 33 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, 34 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. 35 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 36 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. 37 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 38 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 39 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 40 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 9 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. 41 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- 42 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. 43 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, 44 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 la 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. 2a 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. 3a 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 Aa 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- 5a 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 6a than pregnancy continue to accumulate seniority; (c) A policy fixing time limits on 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 7a 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 1 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; or (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. 8a 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. I 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 9a 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. 2 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 -- 2 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 3 of disparate impact discrimination; that 3 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 4 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. 5 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 6 necessity defense. 6 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 -- 6 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 a General Electric Co. v. Gilbert, 429 U.S. 125 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977). 8 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. 9 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 10 cases as to whether a BFOQ defense ora ll business necessity defense applies to a 10 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. 1l 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 12 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 13 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 14 (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 14 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 15 BFOQ defense might also apply or whether it might be an appropriate defense consideration in some disparate 16 impact discrimination cases. 15 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. 16 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- 17 gers. 17 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. 18 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. I 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). ae 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 1 (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- 1 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- 2 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. 3 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 r 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). 1 Those are cases, however, involving a total ban on the differentiating and 1 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- 2 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 3 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 3 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. 4 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 4 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 5 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 ——__—_—___——. 5 "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 6 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- 6 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 7 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- ——- 7 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0867%3A1. Public record. Not legal advice.