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

ae \ Su preme Court, U.S. 4

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No. 94-1545 APR 26 1985

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ALEXANDER L. STEVAS

fc IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1984

THE MILLER-WOHL COMPANY, INC.,

Appellant,

V.

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 SUBMIT BRIEF AS AMICUS CURIAE

AND BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE JURISDICTIONAL STATEMENT

ROBERT E. WILLIAMS

DOUGLAS S. MCDOWELL *

NANCY DIRKSE DE WITT

McGUINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

* Counsel of Record

es

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

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MOTION FOR LEAVE TO SUBMIT BRIEF AS

I sai Sincere das acicnchsntnsnonacnnnsinn

BRIEF AMICUS CURIAE

STATEMENT OF THE CASE .............0000000000..002..........-

THERE ARE SUBSTANTIAL REASONS FOR NOT-

ING PROBABLE JURISDICTION OVER THIS

PIR EPSON IR a eS A I aE Re CR

I. State Statutes Mandating That Women Disabled

By Pregnancy Be Given Benefits To Which

Other Disabled Employees Are Not Entitled

Potentially Conflict With Title VII Of The Civil

Rights Act, As Amended By the Pregnancy

Discrimination Act of 1978

A. This Case Has Implications Beyond The Par-

TSR a a re

B. The Pregnancy Discrimination Act And Its

Legislative History Strongly Indicate That

All Employees Must Be Treated The “Same”

According To Their Ability To Work And

That Work Preferences May Not Be Given

To Pregnant Employees

C. The Court Should Review This Case To Re

solve Apparent Conflicts With Prior Deci-

I re ite

II. The Montana Supreme Court’s Reliance Upon

the Adverse Impact Theory Is Contrary To The

Decisions Of This Court And The Purposes Of

The Pregnancy Discrimination Act

CONCLUSION

Page

ii

TABLE OF AUTHORITIES

Federal Cases Page

Abraham v. Graphic Arts International Union, 660

F264 Gil (OG; Ce: TS? ection 15

Alexander v. Choate, U.S. ——, 105 S. Ct.

PUT CID ric csesin ss nsccnih ees eneiamiaasianes viii, 17

American Tobacco Co. v. Patterson, 456 U.S. 63

CII cicctesncesinccinscsnenhintnntnenrsdncnitineeinainaiccamaesleniatiaaai 6

Arizona Governing Committee v. Norris, —— U.S.

, OS S. Ch. BR Cee cies viii, 10, 11

Burns v. Rohr Corp., 346 F. Supp. 994 (S.D. Cal.

DAPI vadanncaiewiscicraaccceraddllescicthahaccne tans aaenaaaais 5

California Brewers Ass’n. v. Bryant, 444 U.S. 598

ID ick cscs scsinsiinedcsecpce-sainnesmnssctbniatbiadenainaapeepeteataedints 6

California Federal Savings & Loan v. Guerra, Nos.

84-5843, 84-5844, slip op. (9th Cir. April 16,

aici dicsebcsiikeanscnonnininahaslipionaasonapsbianuearediaa viii, 4, 11, 12

Cannon v. The University of Chicago, et al., 441

TG Ce FID csisstcccenncsicanionrciastatabencehacndoliainan adic vii

Florida Lime & Avocado Growers, Inc. v. Paul, 373

pi RR: et . | RRR RNS ee eie omc er sent in Witt r; Seen 12, 13

Furnco Construction Corp. v. Waters, 438 U.S. 567

RTPI “scsiisdsnhics piaachcaciiesandannstieeabenancnsen a naacGaoni ate vii

Gardner v. Westinghouse Broadcasting Company,

Gee Be Ge 2 tetiedtiinencencsiamnens vii

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

| SRRURCHRA prereset. Sie a. Ae Oe 6

Griggs v. Duke Power Co., 401 U.S. 424 (1971)... 14

Harper v. Trans World Airlines, Inc., 525 F.2d 409

CEE GIN sR O IE Ssasavinchnisliciiioneaencnipadiaieidionin 15

Homemakers, Inc. v. Division of Industrial Wel-

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

Se UA. HE Kiki tieebeinti See 5

International Brotherhood of Teamsters v. United

Somiee; ABE UE BR CITI iscrackcvnniedineceeseennss viii, 14

Johnson v. Uncle Ben’s, Inc., 657 F.2d 750 (5th Cir.

TIPU. Uisticincindnrnccnepitsceniepleiasnenk nancy tetas enema 14

Kremer v. Chemical Construction Corp., 456 U.S.

tN See Oe RS SN cats I lied Ott SS viii

iii

TABLE OF AUTHORITIES—Continued

Page

Marafino v. St. Louis County Circuit Court, 537

F. Supp. 206 (E.D. Mo. 1982) aff’d on other

grounds, 707 F.2d 1005 (8th Cir. 1983) _............ 15

Miller-Wohl Company v. Commissioner of Labor

and Industry, State of Montana and Tamara L.

Buley, 515 F. Supp. 1264 (D. Mont. 1981), action

dismissed, 685 F.2d 1088 (9th Cir. 1982) ......... 2,5

Newport News Shipbuilding and Dry Dock Com-

pany v. EEOC, U.S. ——, 103 S. Ct. 2622

EEL SL enn eee celle viii, 5, 9, 10

Shaw v. Delta Air Lines, Inc., U.S. ——, 103

i cide boasepoonses viii

Shell Oil Company v. Anne M. Dartt, 434 U.S. 98

EG tt a vii

Southeastern Community College v. Davis, 442

Cee i eesnesasinienieonice 17

Trans World Airlines, Inc. v. Hardison, 432 U.S.

Sia SECT RES RSS Ae Os SOO vii

Federal Statutes

Civil Rights Act of 1964, as amended

Title VII, Section 708, 42 U.S.C. § 2000e-7...._. 13

Title VII, Section 701(k), 42 U.S.C. § 200Ge-

ES GTARS Re) 5 Oe ATCT passim

The Rehabilitation Act of 1973, Section 504, 29

RE SE 17

State Statutes

Calif. Gov’t Code § 12945 (b) (2) .... 4

Conn. Gen. Stat. § 46(a)-60(a) (7) 0. 4

Montana Maternity Leave Act (MMLA); MCA

AES ES ee passim

Other

H.R. Rept. No. 948, 95th Cong., 2d Sess. reprinted

in 1978 U.S. Code Cong. & Ad. News 4749... 8

S. Rept. No. 331, 95th Cong., 1st Sess. (1977) ........ 7,8

123 Cong. Rec. 29645 (1977) 7

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

THE MILLER-WOHL COMPANY, INC.,

y. Appellant,

COMMISSIONER OF LABOR AND INDUSTRY,

STATE OF MONTANA, AND TAMARA L. BULEY,

Appellees.

On Appeal from the Supreme Court of Montana

MOTION OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

FOR LEAVE TO SUBMIT BRIEF AS AMICUS CURIAE

IN SUPPORT OF THE JURISDICTIONAL STATEMENT

To the Honorable, the Chief Justice and the Asso-

ciate Justices of the United States Supreme Court:

Pursuant to Rules 36 and 42 of the Rules of this

Court, the Equal Employment Advisory Council

(EEAC) moves this Court for leave to file the ac-

companying brief as amicus curiae supporting the Ju-

risdictional Statement of the Appellant, the Miller-

Wohl Company, in this case. In support of this mo-

tion, EEAC shows as follows:

1. The Equal Employment Advisory Council is a

voluntary nonprofit association organized to promote

the common interest of employers and the general

public in sound government policies, procedures and

(v)

vi

requirements pertaining to nondiscriminatory employ-

ment practices. Its membership comprises a broad

segment of the employer community in the Uniied

States, including both individual employers and trade

and industry associations. Its governing body is a

board of directors composed primarily of experts

and specialists in the field of equal employment op-

portunity. Their combined experience gives the

Council a unique depth of understanding of the prac-

tical and legal considerations relevant to the proper

interpretation and application of EEO policies and

requirements. The members of the Council are firmly

committed to the principles of nondiscrimination

and equal employment opportunity.

2. Substantially all of the Council’s members, or

their constituents, are employers subject to the pro-

visions of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e, et seg., which incor-

porates the Pregnancy Discrimination Act, as well as

other federal and state statutes, orders, and regula-

tions pertaining to nondiscriminatory employment

practices. As such, these members are vitally con-

cerned with the issue presented in this case; i.e.,

whether a state statute mandating that women dis-

abled by pregnancy, childbirth, or related conditions

be given a benefit to which other disabled employees

are not entitled conflicts with the federal Pregnancy

Discrimination Act and therefore preempted by fed-

eral law.

3. The movant, EEAC, is concerned with the

broader implications of this case. Particularly, we

are concerned that affirmance of the Montana Su-

preme Court’s decision would open the door for states

to codify various types of preferential treatment for

women affected by pregnancy. As shown in more de-

tail in the attached brief, such state legislation would

EL ee OT eT Te

vii

al-aost inevitably clash with Title VII’s requirement

that employment benefits cannot be denied to em-

ployees on the basis of sex—here, male employees

and non-pregnant female employees. Thus, compli-

ance with such state pregnancy benefit statutes could

render employers liable to other employees who are

not entitled to the same benefits.

It has been suggested that employers could resolve

this potential Title VII liability by voluntarily ex-

tending to all employees those benefits which state

law requires only for pregnant employees. Such a

suggestion, however, creates an improper infringe-

ment upon traditional business prerogatives and uses

potential federal liability to force employers to adopt

policies beyond even those chosen by the state legisla-

ture. Consequently, EEAC’s members have a sub-

stantial interest in determining whether state laws

in fact create a potential conflict with Title VII. If

allowed to participate as amicus curiae, EEAC will

demonstrate that the importance of these broader is-

sues warrants that jurisdiction be noted and the case

accepted for further briefing and argument. EEAC

is uniquely qualified to do so, based upon its prior

experience with these issues and as amicus curiae in

cases raising related questions.

4. Because of its interest in issues pertaining to

equal employment, EEAC on several other occasions

has sought and been granted permission by the Court

to file briefs as amicus curiae. See, e.g., Cannon v. The

University of Chicago, et al., 441 U.S. 677 (1979);

Furnco Construction Corp. v. Waters, 438 U.S. 567

(1978); Trans World Avrlines, Inc. v. Hardison, 432

U.S. 63 (1977) ; Gardner v. Westinghouse Broadcast-

ing Company, 437 U.S. 478 (1978); and Shell Oil

Company v. Anne M. Dartt, 434 U.S. 98 (1977).

vill

5. EEAC also has filed briefs as amicus curiae

with the consent of the parties in a number of other

cases raising important equal employment issues

relating to pregnancy, gender classifications, the

use of statistical evidence, and the relationship be-

tween state and federal non-discrimination law.

Newport News Shipbuilding and Dry Dock Company

v. EEOC, US. , 103 S. Ct. 2622 (1983) ;

Shaw v. Delta Air Lines, Inc.,. —— U.S. ——, 103

S. Ct. 2890 (1983); Arizona Governing Committee

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

International Brotherhood of Teamsters v. United

States, 431 U.S. 324 (1977); Alexander v. Choate,

U.S. ——, 105 S. Ct. 712 (1985); and Kremer

v. Chemical Construction Corp., 456 U.S. 461 (1982).

Furthermore, EEAC participated as amicus curiae

in California Federal Savings & Loan Association v.

Guerra, et al., Nos. 84-5843, 84-5844, slip op. (9th

Cir. April 16, 1985), a recent Ninth Circuit case

addressing a question similar to that before the Court

in this case.

6. The written consent of counsel for the appel-

lant and appellee Tamara Buley to the filing of this

brief will be filed with the Clerk .. the Court. Coun-

sel for appellee, the Commissioner of Labor of the

State of Montana, has declined to consent to the fil-

ing of this brief, thereby necessitating this motion.

Respectfully submitted,

ROBERT E. WILLIAMS

Dovuc.as S. MCDOWELL

NANCY DIRKSE DE WITT

McGuIness & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

April 26, 1985 (202) 789-8600

ee |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-1545

THE MILLER-WOHL COMPANY, INC.,

2. 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

EQUAL EMPLOYMENT ADVISORY COUNCIL

IN SUPPORT OF THE JURISDICTIONAL STATEMENT

The Equal Employment Advisory Council respect-

fully submits this brief as amicus curiae contingent

upon the granting of the attached motion. This brief

urges that this case presents a substantial question

and therefore should be accepted for further review

and oral argument.

STATEMENT OF THE CASE

The Appellant, the Miller-Wohl Company, operates

a chain of women’s clothing stores located through-

out the United States. On August 1, 1979, the Ap-

pellant hired Tamara Buley as a part-time sales

clerk in its Great Falls, Montana store. During her

settee

2

first month of employment, Ms. Buley was sick at

work on several occasions and also missed work as a

result of suffering from “morning sickness.” Conse-

quently, she was unable to perform the responsibili-

ties of the job for which she was hired. Because

Miller-Wohl’s employment policy provides that an

employee is not entitled to obtain a leave of absence

for any sickness or maternity or to receive any paid

sick leave for any illness until the end of the first

year of employment, Miller-Wohl terminated Ms.

Buley’s employment.

After her discharge, Ms. Buley filed a complaint

against Miller-Wohl with the Commissioner of Labor

and Industry alleging a violation of the Montana

Maternity Leave Act (MMLA). The Montana Ma-

ternity Leave Act provides in pertinent part, that

“Tijt shall be unlawful for an employer or his agent

to: 1) terminate a woman’s employment because of

her pregnancy; [or,] 2) refuse to grant the employee

a reasonable leave of absence for such pregnancy .. .”

Section 49-2-310, 311, MCA (1983). The Commis-

sioner found that the Appellant violated the MMLA,

that the MMLA did not conflict with federal law and

therefore it was not preempted by Title VII of the

Civil Rights Act of 1964. The state district court,

1 Based upon an alleged conflict between the MMLA and

Title VII, Appellant sought injunctive relief in federal court

to prohibit the Commission from continuing its action against

Miller-Wohl. The district court’s order finding that there was

no preemption of state law was vacated because there was no

federal subject matter jurisdiction. See Miiler-Wohl Com-

pany v. Commission of Labor & Industry, State of Montana,

515 F. Supp. 1264 (D. Mont. 1981), action dismissed, 685

F.2d 1088 (9th Cir. 1982).

3

however, reversed the decision of the Commissioner

on the grounds that

“the Maternity Leave Act is discriminatory, is a

denial of equal protection of the law, is a protec-

tive and preferential statute favoring non-

disabled pregnant employees to the discrimination

of disabled/non-pregnant employees and disabled

male employees, and is pre-empted by Titles VII

‘ and XI of the Federal Civil Rights Act.”

(A. 3¢e).?

The case was appealed to the Montana Supreme

Court which held:

* * * *

3) ‘“Miller-Wohl’s no leave policy created a dis-

parate effect on women who become pregnant,

compared to those employees who do not become

pregnant. Although facially neutral, its no-leave

policy subjected pregnant women to a job termi-

nation risk on a basis not faced by men. The

no-leave policy therefore was sexually discrimi-

natory in violation of Title VII and the Preg-

nancy Disability Act.

* of * *

5) Miller-Wohl’s termination of Tamara directly

violated the MMLA. The policy and purpose of

the MMLA is to protect equal job opportunities

for women as compared to others by removing a

female disability job risk not faced by men and

non-pregnant females. Its objective in that field,

equality, is the same as the objective of Title VII.

We do not agree that the MMLA violates Title

VII because it is gender-based in its operation, in

2 “A.” references are to the Appendices to the Jurisdictional

Statement.

4

that it protects women without at the same time

protecting others equally.

* * * *

8) We find the MMLA valid.”

(A. 3b-4b).

THERE ARE SUBSTANTIAL REASONS FOR NOTING

PROBABLE JURISDICTION OVER THIS APPEAL

I. STATE STATUTES MANDATING THAT WCMEN

DISABLED BY PREGNANCY BE GIVEN BENE-

FITS TO WHICH OTHER DISABLED EMPLOYEES

ARE NOT ENTITLED POTENTIALLY CONFLICT

WITH TITLE VII OF THE CIVIL RIGHTS ACT,

AS AMENDED BY THE PREGNANCY DISCRIMI-

NATION ACT OF 1978.

A. This Case Has Important Implications Beyond The

Particular Parties.

The Court’s disposition of this case could have im-

portant ramifications beyond the particular Montana

statute and employer. At issue is the authority of

state governments to require that pregnant employees

be granted employment benefits to which neither male

nor female employees who are not pregnant but who

also suffer from disabilities, are entitled to receive.

The instant case involves a state statute that requires

an employer to give a leave of absence to employees

disabled by pregnancy even though the employer does

not grant such leave to employees with other dis-

abilities. Other states, moreover, have also enacted

statutes which provide other employment preferences

based on pregnancy.*® Insofar as this Court is called

3 See Conn. Gen. Stat. § 46a-60(a) (7); Calif. Gov’t Code

§ 12945(b) (2), which requires pregnancy leave for up to four

months, upheld in California Federal Savings & Loan Associ-

ation v. Guerra, et al., Nos. 84-5848, 5844, slip op. (9th Cir.

April 16, 1985).

5

upon in the instant case to determine whether these

pregnancy-related preferences conflict with Title VII,

the case raises important questions of federal em-

ployment policy and the appropriate relationship

between the federal and state governments in regu-

lating this area.

As shown more fully below, the state laws in ques-

tion go beyond the federal Pregnancy Discrimination

Act, in that the federal Act does not require that

pregnant employees be treated any differently than

other employees with respect to disability benefits or

leave policies. It merely mandates that they receive

the same treatment as other employees. At the same

time, it is clear that Title VII forbids employers to

treat other employees, including males, differently

because of their sex. Newport News Shipbuilding

and Dry Dock Company v. EEOC, USS. .

103 S. Ct. 2622 (1983), discussed more fully below

at p. 9-10. Our concern, therefore, is that employers

may face liability to groups of nonpregnant employ-

ees who are not entitled to receive the same employ-

ment benefits as are mandated for pregnant employ-

ees under these state laws. The federal district court

and the Montana Supreme Court suggested that this

dilemma could be resolved by the employer extending

its policies to provide all employees with these same

benefits.* This, however, is an improper infringe-

* Miller-Wohl Co. v. Commissioner, 515 F. Supp. at 1267;

(A. 25b-26b). It should be noted that it is extremely question-

able whether the courts have the authority to usurp legislative

prerogatives and extend to all employees benefits which the

legislature has given only to one group. See e.g., Homemakers,

Inc. v. Division of Industrial Welfare, 509 F.2d 20, 22 (9th

Cir. 1974), cert. denied, 423 U.S. 1063 (1976) ; and Burns v.

6

ment upon business prerogatives and uses potential

federal liability as a lever to force employers to adopt

employment benefit policies beyond those even the

state legislature has chosen to require. Further guid-

ance by the Court, therefore, is needed at this time.

B. The Pregnancy Discrimination Act And Its Legis-

lative History Strongly Indicate that All Employ-

ees Must Be Treated The “Same” According To

Their Ability To Work And That Work Status Pref-

erences May Not Be Given To Pregnant Employees.

The Pregnancy Discrimination Act, enacted in Oc-

tober 1978, was a congressional clarification of em-

ployment discrimination law with respect to preg-

nancy and pregnancy-related issues.” The Act, which

amends Title VII, reads:

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 re-

lated medical conditions; and women affected by

pregnancy, childbirth, or related medical condi-

tions shall be treated the same for all employ-

ment-related purposes, including receipt of bene-

fits under fringe benefit programs, as other per-

sons not so affected but similar in their ability or

inability to work, and nothing in Section 703 (h)

Rohr Corp., 346 F. Supp. 994, 997 (S.D. Cal. 1972). And see,

California Brewers Ass’n. v. Bryant, 444 U.S. 598 (1980)

(Congress left it to employers and not the courts to establish

employment conditions).

5 Specificaliy, Congress intended to negate the Court’s deci-

sion in General Electric Co. v. Gilbert, 429 U.S. 125 (1976),

in which the Court stated that a disability insurance plan

which excluded coverage for pregnancy related disabilities

did not violate Title VII because a condition-related distinc-

tion was being made, not a gender-related distinction.

7

of this title shall be interpreted to permit other-

wise (emphasis added).

42 U.S.C. § 2000e(k).

In selecting this language, Congress intentionally

specified that all employees should be treated the

“same” on the basis of their ability or inability to

work. The meaning of this language is clear. Preg-

nant women may be treated no differently—neither

more beneficially nor more detrimentally—than any

other workers who, for reasons other than pregnancy,

are similarly situated in terms of their ability or

inability to work.°

This construction of the Pregnancy Discrimination

Act’s plain language is supported by its legislative

history. As stated by Senator Stafford on the Sen-

ate floor, “When an employer treats pregnancy,

childbirth, and related conditions the same as he

treats any other disabling condition, then he has com-

plied with this bill.” 123 Cong. Rec. 29645 (1977).

Although not discussed by the Court below, the leg-

islative history is replete with evidence that Con-

gress intended to permit only equal treatment. On

numerous occasions, it was stated that there was

nothing in the Act to mandate any additional treat-

ment for women to accommodate their role as child

bearers. In the Senate report submitted by Senator

Williams, the legislation was explained as follows:

the bill does not require employers to treat preg-

nant women in any particular manner with re-

spect to hiring, permitting them to continue

6 Whenever a question of statutory construction arises, it is

well-settled that the starting point must be the language used

by Congress and it is assumed that the legislative purpose is

expressed by the ordinary meaning of the words used by

Congress. See American Tobacco Co. v. Patterson, 456 U.S.

63, 68-69 (1982), and cases cited therein.

8

working, providing sick leave, furnishing medical

and hospital benefits, providing disability bene-

fits, or any other matter. The bill would simply

require that pregnant women be treated the same

as other employees on the basis of their ability or

inability to work.

S. Rep. No. 331, 95th Cong. 1st Sess. 4 (1977)

The House Report also reaffirms that the Con-

gressional intent was to mandate only equal treat-

ment.

It must be emphasized that this legislation, op-

erating as part of Title VII, prohibits only dis-

criminatory treatment. Therefore, it does not re-

quire employers to treat pregnant employees in

any particular manner with respect to hiring,

permitting them to continue working, providing

sick leave, furnishing medical and hospital bene-

fits, providing disability benefits, or any other

matter.... The bill would simply require that

pregnant women be treated the same as other

employees on the basis of their ability or in-

ability to work ....

The “same treatment” may include employer

practices of transferring workers to lighter as-

signments, requiring employees to be examined

by company doctors or other practices, so long as

the requirements and benefits are administered

equally for all workers in terms of their actual

ability to perform work (emphasis added).

H.R. Rep. No. 948, 95th Cong., 2d Sess. 4-5 re-

printed in 1978 U.S. Code Cong. & Ad. News 4749,

4752-4758.

C. The Court Should Review This Case To Resolve

Apparent Conflicts With Prior Decisions Of This

Court.

As construed by this Court, the Pregnancy Dis-

crimination Act requires that all employees, male

9

and female, be treated the same and forbids sex-

related benefit differentials. While the question

whether a state statute granting preferential treat-

ment to women disabled by pregnancy conflicts with

Title VII is a novel question for the Court, this

Court has previously recognized that an employment

policy of an individual employer which provides spe-

cial treatment for pregnant employees violates the

Pregnancy Discrimination Act. In Newport News

Shipbuilding and Dry Dock Company v. EEOC, ——

US. , 103 S. Ct. 2622 (1983), the Court

squarely addressed and rejected the assertion that

it is appropriate under the PDA to accord preferen-

tial treatment to women employees disabled by preg-

nancy. The Court found that the employer had en-

gaged in unlawful sex discrimination against its

male employees by excluding pregnancy from the

otherwise comprehensive medical benefits provided to

employee spouses. Coverage for pregnancy was pro-

vided to female employees. In holding that the male

employees had been discriminated against on the

basis of sex because female employees received pref-

erential treatment, the Court noted:

Although the 1978 Act makes clear that this

language [the general prohibition against sex dis-

crimination at Section 703(a), 42 U.S.C. § 2000e-

2(a)] should be construed to prohibit discrimi-

nation against a female employee on the basis of

her own pregnancy, it did not remove or limit

Title VII’s prohibition of discrimination on the

basis of the sex of the employee—male or female

—which was already present in the Act. As we

explain infra, . . . petitioner’s plan discriminates

against male employees on the basis of their sex.

103 S. Ct. at 2627, n.11.

10

The Court concluded:

By making clear that an employer could not dis-

criminate on the basis of an employee’s preg-

nancy, Congress did not erase the original pro-

hibition against discrimination on the basis of

any employee’s sex.

* ~ + *

The pregnancy limitation in this case violates

Title VII by discriminating against male em-

ployees.

103 S. Ct. at 2631-2632.

The Court’s decision unequivocally states that

“Tmjale as well as female emplovees are protected

against discrimination.” Jd. at 2630.

Newport News thus clearly interprets the Preg-

nancy Discrimination Act as prohibiting any distinc-

tion whatsoever made on the basis of pregnancy.

Furthermore, the Court held that such a distinction

is per se discrimination, regardless of whether the

distinction creates a benefit or a detriment for

women. If a distinction made on the basis of preg-

nancy provides women with an additional benefit, the

distinction will be per se discrimination because it

discriminates against men.

In Arizona Governing Committee v. Norris,

US. , 103 S. Ct. 3429 (1983), this Court fur-

ther clarified Title VII by holding that the statute

prohibits making any distinctions whatsoever based

on sex or sex related factors. In holding that it is

unlawful for an employer to classify employees on

the basis of sex in predicting longevity for purposes

of calculating retirement benefits, the Court stated:

“What we said in Manhart bears repeating:

‘Congress has decided that classification based on

11

sex, like those based on national origin or race

are unlawful.’ [Citation omitted]. The use of

sex-segregated actuarial tables to calculate re-

tirement benefits violates Title VII whether or

not the tables reflect an accurate prediction of the

longevity of women as a class, for under the

statute ‘[e]ven a true generalization about [a]

class’ cannot justify class based treatment.

[footnote and citation omitted].

103 S. Ct. at 3498.

These decisions arguably would render employers

liable to employees who are denied benefits that are

given to pregnant employees.

The Montana legislature failed to grasp the di-

lemma created by these decisions and the legislative

history of the Pregnancy Discrimination Act. It en-

acted legislation articulating specific accommodations

which an employer must make for preguant women,

including granting them a reasonable leave of ab-

sence for such pregnancy when they are unable to

work, even where such leave is not available to other

disabled employees.

The question in this appeal is whether these two

approaches can exist side-by-side. Can an employer

comply with the state’s mandate for preferential

treatment for pregnant women while simultaneously

complying with federal law which provides that all

persons similar in their ability to work cannot be de-

nied benefits for a sex-based reason?’ A review of

7™The Ninth Circuit recently addressed the same question

and found that the two approaches could exist side-by-side

because Congress, in enacting the PDA, intended to “construct

a floor beneath which pregnancy disability benefits may not

drop—not a ceiling above which they may not rise.” Califor-

nia Federal Savings and Loan v. Guerra, Nos. 84-5843, 84-

12

the Montana Supreme Court’s decision reveals that

that Court did not address this language in Title VII

nor the relevant legislative history. Rather the Mon-

tana Supreme Court concluded that the Appellant vio-

lated Title VII; that the policy and the purpose of

the MMLA are the same as the policy of Title VII;

and that the MMLA was therefore valid.

While both statutes may have been enacted to pre-

vent pregnancy discrimination, this common intent

does not bring the state law in accordance with the

federal law. The Pregnancy Discrimination Act did

more than set out an objective of eliminating preg-

nancy discrimination; it set out specific guidelines

for combatting the discrimination. Therefore, for

state law to be in accordance with the Act it must

not only have the same intent but also must follow

the same guidelines. Consequently, the Montana Su-

preme Court’s finding that the statutes have like ob-

jectives is insufficient grounds for upholding the

MMLA.

As stated by this Court in Florida Lime & Avo-

cado Growers, Ine. v. Paul, 373 U.S. 132 (1963) :

The test of whether both federal and state regu-

lations may operate, or the state regulation must

give way, is whether both regulations can be en-

forced without impairing the federal superin-

tendence of the field, not whether they are aimed

at similar or different objectives ... A holding

of federal exclusion of state law is inescapable

5844, slip op. at 12 (9th Cir. April 16, 1985). The Ninth

Circuit’s decision, however, is in conflict with the plain

language of the Pregnancy Discrimination Act as supported

by the legislative history of the Act. Indeed, the Ninth Cir-

cuit’s opinion does not discuss the legislative history discussed

herein.

13

and requires no inquiry into congressional design

where compliance with both federal and state

regulations is a physical impossibility . . .

373 U.S. at 142.

In the instant case, the conflict between the fed-

eral and the state law may be irreconcilable. It may

be impossible for an employer to grant preferential

treatment to women disabled by pregnancy, as man-

dated by the state law, and avoid Title VII liability

unless it gives the same benefits to employees who are

disabled for reasons other than pregnancy.* Because

of the apparent conflicts between Title VII and state

statutes which give preferences to pregnant employ-

ees which are not given to others who are similar in

their inability to work, the questions raised herein

over the validity of such statutes should be consid-

ered by the Court.

Il. THE MONTANA SUPREME COURT'S RELIANCE

UPON THE ADVERSE IMPACT THEORY IS CON-

TRARY TO THE DECISIONS OF THIS COURT AND

THE PURPOSES OF THE PREGNANCY DISCRIMI-

NATION ACT.

The Montana Supreme Court’s interpretation of

Title VII law conflicts with the Title VII decisions of

* There is no doubt that in enacting Title VII, Congress

intended Title VII principles to prevail over conflicting state

statutory requirements. Section 708 of Title VII speaks

directly to this issue, providing that:

Nothing in this title shall be deemed to exempt or relieve

any person from any liability, duty, penalty, or punish-

ment provided by any present or future law of any State

or political subdivision of a State, other than any such

law which purports to require or permit the doing of

any act which would be unlawful employment practice

under this title.

42 U.S.C. § 2000e-7 (emphasis added) .

14

this Court. The Montana Supreme Court, in consid-

ering this case, made the assumption that an employ-

ment policy which does not grant any disability leave

to employees during their first year of employment

has a disparate impact on women. (A. 3b, 20b).

Then, without affording the employer an opportunity

to rebut the assumed disparate impact by showing

that its policy does not have a disparate impact on

women or by showing a business necessity for the

employment policy, the Montana Supreme Court

found the Appellant to be in violation of Title VII.

Furthermore, the court used this finding as a basis

for holding that the state statute was not in viola-

tion of Title VII. This convoluted reasoning should

not be affirmed by this Court.

The adverse or disparate impact method of proof

under Title VII is used to attack employment selec-

tion criteria which are facially neutral yet fail more

harshly on a protected class of employees. /nterna-

tional Brotherhood of Teamsters v. United States, 431

U.S. 324, 335 n.15 (1977). To establish a prima facie

case of disparate impact, a plaintiff must show that

a facially neutral employment practice produces a

significant adverse impact on a protected group of

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

432 (1971). There must be some statistical or actual

data showing that a disparate impact has occurred.

As the Fifth Circuit stated in Johnson v. Uncle ben’s

Inc., 657 F.2d 750 (5th Cir. 1981), “In making a

prima facie case in a disparate impact suit, however,

the plaintiff must not merely prove circumstances

raising an inference of discriminatory impact; he

must prove the discriminatory impact at issue.” 657

F.2d at 753.

In the pregnancy context, the U.S. District Court

for the Eastern District of Missouri in Marafino v.

15

St. Louis County Circuit Court, 537 F. Supp. 206

(E.D. Mo. 1982), aff'd on other grounds, 707 F.2d

1005 (8th Cir. 1983) noted:

The Court realizes that women are subject to

most of the same types of illness and to the nec-

essity for most of the same types of surgery that

men are. Women are subject to the additional!

occasional physical condition of pregnancy and

to the resulting event of childbirth. It might be

presumed that those two facts together establish

that women, more often than men, are in a posi-

tion to know that they will require leave of ab-

sence from work, for physical reasons, at a fairly

definite future time. However, the Court cannot

simply imagine a disparate impact. Harper v

Trans World Airlines, Inc., 525 F.2d 409, 414,

11 FEP Cases 1074 (8th Cir. 1975). In the total

absence of any evidence that women do in fact

request lengthy leaves of absence more frequently

than men, the Court cannot conclude that dis-

parate impact has been shown.

537 F. Supp. at 213.°

In the present case, the Montana Supreme Court

ruled that, “[a]n employer’s no-leave policy therefore

poses a drastic effect on women employees of child-

bearing age, an impact no male would ever encoun-

ter.” ** The Montana Supreme Court made this find-

®In Abraham v. Graphic Arts International Union, 660

F.2d 811 (D.C. Cir. 1981), the District of Columbia Court of

Appeals also assumed that a neutral employment policy fail-

ing to grant an adequate leave policy had a disparate impact

on pregnant women. Amicus curiae asserts, however, that

such an assumption is improper.

© (A. 19b.)

16

ing absent any evidence whatsoever of the impact of

Miller-Wohl’s employment policy. No evidence was

introduced showing how many persons lost their jobs

as a result of Miller-Wohl’s policy of prohibiting

medical-related leave during the first year of employ-

ment; no evidence was introduced showing how many

of the persons who lost their jobs were pregnant

women, non-pregnant women, or men; and no evidence

was introduced showing whether, at a statistical sig-

nificance, there was a disparate impact on one sex or

the other.

Consequently, the Montana court’s finding of dis-

parate impact was based upon assumptions that were

unsupported by any probative evidence. T'he court’s

assumption of disparate impact was improper absent

any evidence to that fact. The Montana Supreme

court compounded its error by then finding that the

Appellant violated Title VII without affording the

Appellant any opportunity to rebut the disparate im-

pact finding or to show a business necessity for im-

plementing the leave policy. Consequently, the Mon-

tana Supreme Court’s holding should not be sum-

marily affirmed.

As discussed above, moreover, the Pregnancy Dis-

ability Act was enacted to assure the equal treatment

of pregnancy-related and other disabilities. But Con-

gress made it clear that one type of disability was

not to be singled out for special treatment over others

as long as individuals were treated the same with

respect to their “inability to work.” The fact that an

evenhanded policy may have different results for

groups having varying disabilities is not the type of

“adverse impact” for which the Pregnancy Disability

Act permits a remedy.

17

A similar construction was given by the Court to

Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794, in a case rejecting an argument that

a state government’s reduction of hospital care pro-

vided by Medicaid has an impermissible adverse im-

pact on handicapped persons. In Alexander v. Choate,

U.S. ——, 105 S. Ct. 712 (1985), the Court

stated:

Section 504 does not require the State to alter

this definition of the benefit being offered simply

to meet the reality that the handicapped have

greater medical needs. To conclude otherwise

would be to find that the Rehabilitation Act re-

quires States to view certain illnesses, i.e., those

particularly affecting the handicapped, as more

important than others and more worthy of cure

through government subsidization. . . . Section

504 seeks to assure evenhanded treatment and

the opportunity for handicapped individuals to

participate in and benefit from programs receiv-

ing federal assistance. Southeastern Community

College v. Davis, 442 U.S. 397 (1979). The Act

does not, however, guarantee the handicapped

equal results from the provision of state Medi-

caid, even assuming some measure of equality of

health could be constructed. Ibid.

105 S. Ct. at 722.

Like 504, Title VII was enacted to ensure even-

handed treatment and opportunity for all persons;

however, it was not enacted to be a guarantee that

all persons would obtain equal results. To conclude

otherwise would be to find that Title VII provides

employees with a certain disability, pregnancy, more

protection than other disabilities, a result clearly con-

trary to the PDA’s legislative history. Accordingly,

18

the Montana Supreme Court’s improper reliance upon

the adverse impact method of analysis should be re-

viewed by this Court.

CONCLUSION

For these reasons, it is respectfully requested that

the Court note probable jurisdiction o* this appeal

and grant further briefing and oral argument to de-

velop the questions presented.

Respectfully submitted,

ROBERT E. WILLIAMS

DOUGLAS 8. MCDOWELL *

NANCY DIRKSE DE WITT

McGUuINESS & WILLIAMS

1015 Fifteenth Street, N.W.

Suite 1200

Washington, D.C. 20005

(202) 789-8600

Attorneys for Amicus Curiae

Equal Employment

Advisory Council

* Counsel of Record

April 26, 1985