Amicus Curiae Brief — Miller-Wohl Co. v. Commissioner of Labor & Industry

Supreme Court, U.S.

a

APR 26 1985

No. 84-1545 vr,

deihenabictintanaen TV AS

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

THE MILLER-WOHL COMPANY, INC.,

a Appellant,

COMMISSIONER OF LABOR AND INDUSTRY,

STATE OF MONTANA, and TAMARA L. BULEY,

Appellees.

On Appeal from the Supreme Court of Montana

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF AMICUS CURIAE

OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE JURISDICTIONAL STATEMENT

ROBIN S. CONRAD

Counsel of Record

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

of the United States

WILSON - EPES PRINTING Co.. INC

- 789-0096 - WASHINGTON. D.C. 20001

IN THE

Supreme Cmut of the United States

OCTOBER TERM, 1984

No. 84-1545

THE MILLER-WOHL COMPANY, INC.,

‘ Appellant,

COMMISSIONER OF LABOR AND INDUSTRY,

STATE OF MONTANA, and TAMARA L. BULEY,

Appellees.

On Appeal! from the Supreme Court of Montana

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The Chamber of Commerce of the United States moves

for leave to file the attached brief amicus curiae pur-

suant to Supreme Court Rule 36.1. Appellant Miller-

Wohl has consented to the filing of this brief.1 This mo-

tion is necessary because counsel for Appellee Commis-

sioner of Labor and Industry has refused to consent to

the filing of this brief, and efforts to obtain the consent

of counsel for Appellee Tamara L. Buley were unsuc-

cessful.

The Chamber of Commerce of the United States

(“Chamber”) is the largest federation of business or-

ganizations and individuals in the United States. Its

current membership exceeds 184,000, including over

1 A copy of the consent letter has been filed with the Clerk.

180,000 corporations, partnerships and proprietorships,

as well as several thousand trade associations and state

and local chambers of commerce. Moreover, the Chamber

has over 1,162 members in the state of Montana.

As one of its principal functions, the Chamber regu-

larly presents its members’ views in court on a broad

range of legal issues, including equal employment issues.’

This case involves the scope of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000e et seg. (“Title

VII’), as amended by the Pregnancy Discrimination Act

of 1978, 42 U.S.C. § 2000e(k) (1984) (“PDA”). At is-

sue is whether a Montana law that requires preferential

treatment of pregnant employees is preempted by the

PDA.

The PDA has been of particular interest to the Cham-

ber since its enactment. As a result, the Chamber has

participated in several cases concerning its scope. See,

e.g., Kansas Association of Commerce and Industry Vv.

EEOC, 22 Fair Empl. Prac. Cas. (BNA) 1343 (D. Kan.

1980) (the first case filed in federal district court chal-

lenging the Equal Employment Opportunity Commission’s

promulgation and enforcement of Final Interpretive

Guidelines concerning the PDA, 29 C.F.R. § 1604.10(b)

(1981)); Newport News Shipbuilding and Dry Dock

Co. v. EEOC, 462 U.S. 669 (1983) (involving the ques-

tion of whether a company’s health insurance plan that

covers the medical expenses of female employees’ spouses

discriminates against male employees, if it does not cover

their spouses’ medical expenses arising from pregnancy-

related conditions).

Most recently, the Chamber filed a brief in the Ninth

Circuit on a preemption question similar to the one pre-

2 See, e.g., United Telecommunications, Inc. v. Saffels, cert. de-

nied, 53 U.S.L.W. 3669 (U.S. Mar. 18, 1985) (No. 84-1002) ; North-

west Airlines, Inc. v. Laffey, cert. denied, 53 U.S.L.W. 3507 (U.S.

Jan. 14, 1985) (No. 84-825); U.S. Postal Service v. Aikens, 460

U.S. 711 (1983).

sented here. See, California Federal Savings & Loan

Ass’n V. Guerra, 34 Fair Empl. Prac. Cas. (BNA) 562

(C.D. Cal. 1984), rev’d, Nos. 84-5843 and 44, slip op.

(9th Cir. Apr. 16, 1985) (holding that Title VII does

not preempt a California statute that requires employers

to grant up to four months of pregnancy disability leave

to employees “disabled on account of pregnancy, child-

birth, or related medical conditions’). In light of the

Ninth Circuit’s recent decision, it is particularly im-

portant that the business community’s perspective on

preferential treatment in the workplace be presented to

this Court.

The Montana statute at issue in this case requires em-

ployers to grant “reasonable leave of absence” to preg-

nant employees, whether disabled or not, and to rein-

state them when they come back to work. Montana

Maternity Leave Act, Mont. Code Ann. § 49-2-310 to 311

(1983) .* These requirements apply regardless of the em-

ployer’s existing policy on disability leave. Thus, em-

ployers in Montana must grant leave to pregnant em-

ployees, even when company policy does not provide leave

to other employees.

Preferential state laws in an area pervasively regu-

lated by the federal government present difficult problems

for many Chamber members in Montana and in other

states. Montana members find themselves caught in the

untenable position of trying to comply with a state law

that requires special treatment of pregnant employees

when federal law requires equal treatment of all em-

ployees.

Muitistate employers face an even greater dilemma,

having to reconcile the preferences mandated by vari-

3 The Montana Maternity Leave Act was originally codified at

Mont. Code Ann. §§ 39-7-210 et seg. and was recodified, effective

July 1, 1983, at Mont. Code Ann. § 49-2-310 under the Montana

Human Rights Act.

ous state laws with a federal statute that mandates

equality in the workplace. Without federal preemption,

uniform personnel policies will be impossible and com-

pliance improbable. Disparate personnel practices will

cause dissension within the workforce, and subject em-

ployers to charges of discrimination from disabled male

employees as well as female employees with non-

pregnancy-related disabilities.

The Chamber is concerned about the labor relations

problems that result from the Montana Maternity Leave

Act and similar state statutes that require preferential

treatment of pregnant employees. The Chamber is also

concerned about the impact of preferential state laws

on national uniformity within the equal employment op-

portunity field. For these reasons, the Chamber respect-

fully submits this brief, and urges this Court to note

probable jurisdiction on this important Title VII issue.

Respectfully submitted,

ROBIN S. CONRAD

Counsel of Record

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

of the United States

TABLE OF CONTENTS

eae CO AF EI acini sccscaninacescmnnhikosnantodcniail

STATEMENT OF INTEREST ........00.0222.0222222--------s0--0+-

BAe SPT BD osvedihasieih.Dikanesekceneltainbbemuinanieicaiades<daalbiin

ARGUMENT

I.

II.

THE MONTANA MATERNITY LEAVE ACT

MANDATES PREFERENTIAL TREATMENT

OF PREGNANT EMPLOYEES IN VIOLA-

TOON OP PIL s Tay nn sinensis scsecnsnnse

A. Federal Law Requires Equal, Not Special

pA MIEN FS LEE aA UTR, AMES

B. Federal Law Protects Only Employees Who

Are Disabled by Pregnancy ..................22.......-

THE MONTANA MATERNITY LEAVE ACT

IS PREEMPTED BY FEDERAL LAW AND

INVALIDATED BY THE SUPREMACY

CLAUSE OF THE CONSTITUTION ............

A. Employers Cannot Comply With The Mon-

tana Statute Without Violating Federal

ea RTC ICTS NT RE TE ALE) ES ER

B. The Montana Statute Undermines the Objec-

er Oe De Ge oi i

CG IIE screibcdcinsneneisdbe sosianipieinacens dicaaesaiichgemetinaciai

10

11

ii

TABLE OF AUTHORITIES

CASES Page

Arizona Governing Committee for Tax Deferred

Annuity and Deferred Compensation Plans Vv.

Norris, —— U.S. , 103 S. Ct. 3492 (1983) .. 10

Florida Lime & Avocado Growers, Inc. v. Paul,

SUB UE, BAD Cae Sicacciadwssiditiediensinsent 9

General Electric Co. v. Gilbert, 429 U.S. 125

CRED seercisissioncecssiesiinniniinteiapissetateiatamdaetbindicietliiiaibesianahainn 4,10

Hines v. Davidowitz, 312 U.S. 52 (1941) ~............... 9

Homemakers, Inc. v. Division of Industrial Wel-

fare, 509 F.2d 20 (9th Cir. 1974), cert. denied,

GED Vis De Ce ascii cvestcctdtinccrtnaditinitinine 10

Silkwood vy. Kerr-McGee Corp., —— U.S. ——,

oe eS: 8. ee eee 8,9

UNITED STATES CONSTITUTION

Supremacy Clause, Art. VI, § 2 ..................--...--------- 8,9

STATUTES

Montana Maternity Leave Act, Mont. Code Ann.

© BBLS Oo: BER Ce en ltnsitieis passim

Pregnancy Discrimination Act of 1978, Pub. L.

95-555, 92 Stat. 2076 (codified at 42 U.S.C.

OF dese stecctncicsschcceccnccsadubetebanteninmaamectnninenie’ passim

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

Oe Be Be sin esiciestsdethicticibnccn caplet tensetanicigtontaadl passim

Title XI of the Civil Rights Act of 1964, 42 U.S.C.

OD scent cntnnnceaceniesascsacliadiesinpujiaisiadadibabiadicdadaseiiabess 2, 8,9

LEGISLATIVE MATERIALS

123 Cong. Rec. 29,387 (1977) ...............----...---0---00----20- 10, 11

123 Cong. Rec. 29,668 (1977) .................................... 9

128 Cong. Rec. 29,664 (1977) .................................... 5

Committee Print of the Legislative History of the

PDA prepared for the Senate Committee on

Labor and Human Resources (June 1980) ....4, 5, 6, 7, 8

IN THE

Suprene Court of the United Siates

OCTOBER TERM, 1984

No. 84-1545

THE MILLER-WOHL COMPANY, INC.,

. Appellant,

COMMISSIONER OF LABOR AND INDUSTRY,

STATE OF MONTANA, and TAMARA L. BULEY,

Appellees.

On Appeal from the Supreme Court of Montana

BRIEF AMICUS CURIAE

OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE JURISDICTIONAL STATEMENT

STATEMENT OF INTEREST

The Chamber of Commerce of the United States

(“Chamber”) respectfully refers this Court to its Mo-

tion for Leave to File Brief Amicus Curiae for a state-

ment of its interest in this proceeding.

INTRODUCTION

This appeal from the Supreme Court of Montana

arises out of Miller-Wohl’s attempt to enjoin the enforce-

ment of the Montana Maternity Leave Act, Mont. Code

Ann. § 49-2-310 to 311 (1983).' That statute, as en-

1The Montana Maternity Leave Act was originally codified at

Mont. Code Ann. §§ 39-7-201 et seq., and was recodified, effective

July 1, 1983 at Mont. Code Ann. § 49-2-310 under the Montana

Human Rights Act.

2

forced by the state, requires employers to grant “a rea-

sonable leave of absence” to pregnant employees and to

reinstate them when they return to work. The state law

applies even when pregnancy is not disabling and com-

pany policy does not grant disability leave or reinstate-

ment rights to other temporarily disabled employees.’

Miller-Wohl challenged the Montana Maternity Leave

Act in the court below on the grounds that it requires

preferential treatment of pregnant employees in viola-

tion of Title VII, the Pregnancy Discrimination Act

(which amended Title VII in 1978) (“PDA”), and Title

XI of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e,

2000e(k), and 2000h-4. Miller-Wohl also argued that

the Montana law is preempted by these federal statutes,

and therefore is null and void under the Supremacy

Clause. The court below rejected the company’s argu- ,

ments and upheld the state statute as consistent with

federal law.’

The Chamber believes that the Montana statute inter-

feres with the intent of Congress in amending Title VII

2 Section 49-2-310 provides, in relevant part:

It shall be unlawful for an employer or his agent to:

(1) terminate a woman’s employment because of her

pregnancy ,;

(2) refuse to grant the employee a reasonable leave of

absence for such pregnancy;

(3) deny to the employee who is disabled as a result of

pregnancy any compensation to which she is entitled

as a result of the accumulation of disability or ‘eave

benefits accrued pursuant to plans maintained by her

employer; provided that the employer may require

disability as a result of pregnancy to be verified by

medical certification that the employee is not able to

perform her employment duties.

3 The decision of the Montana Supreme Court is reported at 692

P.2d 1243 (Mont. 1984), and is reprinted in Miller-Wohl’s Jurisdic-

tional Statement at Appendix b.

a ee ne ae

3

to include the Pregnancy Discrimination Act. The legis-

lative history of the PDA states in no uncertain terms

that Congress intended employers to treat pregnant em-

ployees the same as all other employees. Congress did

not intend to require employers to provide special treat-

ment to pregnant employees who are not disabled. Nor

did Congress intend to require employers tc make spe-

cial provisions for pregnant employees when similar pro-

visions do not exist for other employees. Yet these are

precisely the types of requirements Montana has im-

posed by enacting and enforcing this statute. The Mon-

tana Maternity Leave Act is an obstacle to federal equal

employment objectives, and employers cannot comply

with it without violating federal law. For these rea-

sons, this Court should note probable jurisdiction in this

case.

ARGUMENT

I. THE MONTANA MATERNITY LEAVE ACT MAN-

DATES PREFERENTIAL TREATMENT OF PREG-

NANT EMPLOYEES IN VOLATION OF FEDERAL

LAW.

This Montana statute requires preferential treatment

of pregnant employees in two ways. It requires employ-

ers to grant employees “reasonable leave of absence” and

reinstatement simply because they are pregnant, without

regard to their ability to work. And it imposes these

requirements regardless of the employer’s existing per-

sonnel policies. Thus, employers in Montana must pro-

vide leave to pregnant employees, regardless of disability

and regardless of whether company policy provides leave

to other employees. By providing pregnant employees

with greater rights than are accorded other employees,

the Montana statute flies in the face of the Pregnancy

Discrimination Act and its legislative history. In so do-

ing, the state statute contravenes federal law, and must

be struck down.

4

Congress enacted the PDA as an amendment to § 701

of Title VII.* Its purpose was to ensure equal treat-

ment of pregnant employees in the workplace by over-

ruling this Court’s decision in General Electric Co. V.

Gilbert, 429 U.S. 125 (1976).° In Gilbert, this Court

had ruled that employers who excluded pregnancy-

related disabilities from an employee disability income

plan did not discriminate on the basis of sex in viola-

tion of Title VII.

In reversing Gilbert, Congress made it clear that an

employee disabled by pregnancy is to be treated like any

other disabled employee. The PDA and its legislative

history conclusively establish that Congress did not in-

tend preferential treatment of pregnant employees. Sec-

tion 2000e(k) explicitly states that “women affected by

pregnancy” shall be treated “the same for all employ-

ment-related purposes . . . as other persons not so af-

fected but similar in their ability or inability to work”

(emphasis added).

Thus, under the PDA, employers who do not provide

benefits to other disabled employees are not required to

provide them to employees disabled by pregnancy. The

*The Pregnancy Discrimination Act of 1978, Pub. L. 95-555,

92 Stat. 2076 (codified at 42 U.S.C. § 2000e(k)), provides in

relevant part:

(k) The terms ‘because of sex’ or ‘on the basis of sex’ include,

but are not limited to, because of or on the basis of pregnancy,

childbirth, or related medical conditions; and women affected

by pregnancy, childbirth, or related medical conditions shall

be treated the same for all employment-related purposes, in-

cluding receipt of benefits under fringe benefit programs, as

other persons not so affected but similar in their ability or

inability to work, and nothing in section 2000e-2(h) of this

title shall be interpreted to permit otherwise.

5 See Committee Print of the Legislative History of the PDA

prepared for the Senate Committee on Labor and Human Resources

(June 1980) (hereinafter “Leg. Hist.) at 132.

—_=,

5

statute “in no way provides special disability benefits for

working women.” 123 Cong. Rec. 29,664 (1977) (state

ment of Senator Brooke, co-sponsor of S. 995, the bill

that ultimately became the PDA). Rather, the PDA re-

quires an employer to provide employees disabled by

pregnancy with the same benefits, for the same period,

and on the same terms as provided to other disabied

employees. The ‘“employment-related purposes” for

which the PDA mandates equal treatment include dis-

ability benefits, medical benefits, leaves of absence, sick

leave and reinstatement rights. Leg. Hist. at 41-43.

A. Federal Law Requires Equal, Not Special Treat-

ment.

In addition to the plain meaning of § 2000e(k), the

legislative history of the PDA contains repeated expres-

sions of congressional intent that pregnant employees re-

ceive equal, but not special, treatment. Of particular note

are the words of Congressman Hawkins, a principal

sponsor of the House bill:

Like title [sic] VII, generally, [the PDA] merely

requires that employers not discriminate. Thus, an

employer who does not now provide disability bene-

fits to his employees wiil not have to provide such

benefits to women disabled due to pregnancy or

childbirth.

Leg. Hist. at 25 (emphasis added).

Other members of Congress were similarly emphatic

about not requiring employers to create special benefits

for pregnant employees. Senator Williams, Chairman of

the Senate Human Resources Committee and a chief

sponsor of S. 995, remarked in debate:

[I]t is important to bear in mind that this legisla-

tion does not require that any employer begin to

provide health insurance where it is not presently

provided. Rather, it requires that employers who do

provide health insurance do so on a non-discrimina-

tory basis.

Leg. Hist. at 64 (emphasis added) .°

And according to tlie Senate report on S. 995, “[a]n

employer who does not provide disability benefits or paid

sick leave to other employees will not, because of S. 995,

have to provide these benefits” to pregnant employees.

Leg. Hist. at 41. Clearly, Congress intended only that

employers provide pregnant employees with the same

benefits already available to other employees.

Contrary to the PDA and its legislative history, the

Montana Maternity Leave Act does not treat pregnant

employees “the same” as other employees. Rather, the

Montana statute requires employers to grant leave to

pregnant employees, even if they are not disabled by

pregnancy and company policy does not provide similar

leave to other workers. Congress did not intend to allow,

much less mandate, such unequal treatment in the work-

place. Preferential treatment of pregnant employees, as

legislated by the Montana statute, squarely conflicts with

federal law, and must be struck down.

B. Federal Law Protects Only Employees Who Are

Disabled by Pregnancy.

The plain meaning of the PDA and its legislative his-

tory firmly establish that pregnant employees must be

treated equally with other employees based on their “abil-

ity or inability to work.” The PDA does not protect em-

ployees who are simply pregnant, yet still able to work.

Instead, it prohibits discrimination against employees

when pregnancy prevents them from working, and en-

8 While Senator Williams’ comments are directed at health insur-

ance rather than disability leave, the relevance of his comments

is clear. No special treatment of pregnant employees is required

by the statute.

7

sues that employers will provide them with the same

benefits as accorded to other disabled employees.

The legislative history of the PDA is replete with ex-

amples of congressional intent to focus on the pregnant

employee’s ability to work, and not on the mere fact of

pregnancy. The Senate report on S. 995 states as its

“basic principles” that:

Under this bill, the treatment of pregnant women in

covered employment must focus not on their condi-

tion alone but on the actual effects of that condition

on their ability to work. Pregnant women who are

able to work must be permitted to work on the same

conditions as other employees; and when they are

not able to work for medical reasons, they must be

accorded the same rights, leave privileges and other

benefits, as other workers who are disabled from

working.

Leg. Hist. at 41 (emphasis added).

Accordingly, “an employer will not have to allow preg-

nant women to use paid sick leave or receive disability

benefits simply because they are pregnant; benefits need

to be paid only on the same terms applicable to other

employees—that is, generally, only when the employee is

medically unable to work.” Jd. See also, Statement of

Senator Stafford in debate on S. 995 (“[T]his bill de-

mands equal treatment and nothing more. When an em-

ployer treats pregnancy, childbirth, and related condi-

tions the same as he treats any other disabling condi-

tion, then he has complied with this bill.”). Leg. Hist.

at 83.

When introducing the House bill (H.R. 5055), Con-

gressman Hawkins explained:

Nor does the bill require that employers . . . provide

leave simply because [employees] are pregnant... .

Rather, it recognizes that for most of the time a

woman is pregnant she is, in most cases, able to. con-

tinue working, and should be allowed to do so. It

also recognizes that pregnancy and childbirth does

[sic] cause some period during which a woman is

medically unable to work. For 95 percent of women,

that period is 6 weeks or less. Jt is only during this

period, unless there are complications which cause

the woman to be disabled longer, for which disability

benefits or leave are required on the same basis ap-

plicable to other employees with temporary disabili-

ties.

Leg. Hist. at 25 (emphasis added).

In direct conflict with the PDA, the Montana Mater-

nity Leave Act makes it unlawful for employers to re-

fuse to grant “reasonable leave of absence” to pregnant

employees, whether disabled or not. By requiring em-

ployers to extend such leave without regard to ability to

work, the Montana statute contravenes the express in-

tent of Congress in passing the PDA. Congress specifi-

cally provided for equal treatment of employees disabled

by pregnancy, not preferential treatment of employees

when pregnancy does not prevent them from working.

Thus, the Montana statute conflicts with federal law,

with regard both to equal treatment and disability.

Il. THE MONTANA MATERNITY LEAVE ACT IS PRE-

EMPTED BY FEDERAL LAW AND INVALIDATED

BY THE SUPREMACY CLAUSE OF THE CON-

STITUTION.

Under the Supremacy Clause of the Constitution,’ a

State law is invalid if Congress has shown an intent to

occupy a given field,® or if state and federal law conflict.

Silkwood v. Kerr-McGee Corp., —— U.S. ——, 104 S. Ct.

625, 621 (1984). Titles VII and XI also contain specific

7 U.S. Const. art. VI, § 2.

8 This type of preemption is inapplicable here, as Congress did

not intend to occupy the entire equal employment opportunity field.

See 42 U.S.C. §§ 2000e-7 and 2000h-4.

9

provisions regarding statutory preemption. Title VII pre-

empts any state law that operates to require or permit

unlawful employment practices. § 708, 42 U.S.C. § 2000e-

7. Similarly, Title XI invalidates any state law that “is

inconsistent with the purposes of this Act.” § 1104, 42

U.S.C. § 2000h-4. The Montana Maternity Leave Act

must be struck down under both the Supremacy Clause

and the preemption provisions of Titles VII and XI.

This Court has made it clear that the Supremacy Clause

invalidates state legislation when it is impossible to com-

ply with both state and federal law, Florida Lime &

Avocado Growers, Inc. v. Paul, 373 U.S. 182, 142-148

(1963), or where the state law stands as an obstacle to

the accomplishment of the full purposes and objectives of

Congress. Hines v. Davidowitz, 312 U.S. 52, 67-68

(1941). Accord, Silkwood v. Kerr-M-Gee Corp., 104 S. Ct.

at 621. The Montana Maternity Leave Act causes both of

these problems. Moreover, it operates to require unlawful

employment practices, and is plainly inconsistent with the

purposes of the Equal Employment Opportunity Act. For

these reasons, this Court should note probable jurisdiction.

A. Employers Cannot Comply With The Montana Stat-

ute Without Violating Federal Law.

The Montana Maternity Leave Act is clearly at odds

with the PDA. Unless it is invalidated, employers in

Montana will continue to be faced with the task of com-

plying with a state statute that requires special treatment

of pregnant employees when federal law requires equal

treatment of all employees. These two mandates are en-

tirely inconsistent. Employers cannot comply with one

without violating the other.

The PDA “does not . . . require that an employer do

anything more for his pregnant employees than he does

for any other employees.” 123 Cong. Rec. 29,663 (1977).

In fact, it “would prohibit as sex discrimination any per-

sonnel practice . . . which treats pregnancy . . . differently

10

than other conditions which also cause inability to work

.. .’ Id. at 29,387. As demonstrated above, the Mon-

tana statute flies in the face of the PDA by providing

pregnant employees greater rights than are accorded other

employees. In so doing, the state statute contravenes fed-

eral law, and must be struck down.

Any suggestion that the conflict between the Montana

Maternity Leave Act and the PDA can be eliminated by

extending the state-mandated benefits to all employees

must be rejected. Requiring Miller-Wohl to revise com-

pany policy, first by granting preferential leave to preg-

nant employees and then by extending leave to all em-

ployees, would turn the PDA on its head. This result is

not required by federal law, and imposing it would violate

that law. Homemakers, Inc. v. Division of Industrial

Welfare, 509 F.2d 20 (9th Cir. 1974), cert. denied, 423

U.S. 1063 (1976).

B. The Montana Statute Underinires the Objectives of

Federal Law.

Federal law requires equal treatment of ull disabled

employees, preg::ant or otherwise, and does not permit ar-

bitrary preferences of one type of disability over another.

Differential treatment on the basis of pregnancy consti-

tutes sex discrimination in violation of Title VII. Arizona

Governing Committee for Tax Deferred Annuity and De-

ferred Compensation Plans v. Norris, USS. , 103

S. Ct. 3492, 3498 n.14 (1983). See also, General Electric

Co. v. Gilbert, 429 U.S. 125, 161-62 (1976) (Brennan,

J., dissenting) (“Surely it offends common sense to sug-

gest . . that a classification revolving around pregnancy

is not, at the minimum, strongly ‘sex-related.’”). The

Montana Maternity Leave Act conflicts with this goal of

equal opportunity by requiring preferential treatment of

pregnant employees, without regard to their ability to

work. The requirements of the Montana statute legislate

discrimination in direct violation of Title VII.

11

The PDA was designed to protect workers disabled by

pregnancy from employment practices not faced by other

disabled workers. 123 Cong. Rec. 29,387. It adopted

equality of treatment as its standard, making benefits

contained in existing personnel programs the measure of

an employer’s duty toward pregnant employees. In con-

trast, the Montana Maternity Leave Act has adopted pref-

erential treatment as its standard, thereby undermining

the objectives of federal law.

CONCLUSION

The preferences mandated by this state statute con-

travene the purposes of the PDA, forcing employees to

choose between state and federal law because they cannot

comply with both. For these reasons the Chamber respect-

fully urges this Court to note probable jurisdiction in this

case.

Respectfully submitted,

RoBIN S. CONRAD

Counsel of Record

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce

of the United States

April 26, 1985