Petition for Rehearing — Schattman v. Texas Employment Commission

12500 Dunlap, #247

Houston, Texas 77035

Alpha Law Bruni Co. One Mam Plase, Ne. 1 Mae Si, Routes, rrea2

Now comes Mary Ellen Schattman, Petitioner, Pro Se,

and files this her Petition for Rehearing of this Court's

denial of her Petition for a Writ of Certiorari, January 8,

1973. Petitioner would show the Court that it erred in

denying her Petition for a Writ of Certiorari for the fol-

lowing reasons.

First, on January 9, 1973, the Fourth Circuit Court of

Appeals sitting en banc reversed the panel decision in

Sch. Bd., 467 F.2d 262 (4th

59 (ED. Va. 1971).

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scope of protection afforded to pregnant government em-

Ployees by the Fourteenth Amendment's equal protection

clause. Having first determined to follow the Sixth Cir.

cuit’s decision in LeFleur v. Cleveland Bd. of Edu., 465

F.2d 1184 (6th Cir. 1972), the Fourth Circuit abruptly

reversed itself.

A clear statement of the law and the applicable Four-

teenth Amendment standard is necessary to remove any

doubt from the minds of the judges and to alleviate the

anxiety of working women whose income is critical to

their families’ wellbeing.

Second, in the intervening decision of Perez v. Gomez,

No. 71-575, January 17, 1973, this Court held that Texas

had violated the rights of illegitimate children by failing

to provide a means to establish paternity and enforce the

obligation of support. No matter how difficult, Texas is

obligated to provide an opportunity in every case to prove

paternity. The administrative inconvenience of requiring

individual evaluation and treatment of pregnant Texas

employees is considerably less onerous than the obligation

of individual treatment imposed by Perez.

It is interesting to note that in the District of Columbia,

disabled persons be treated equally and with dignity in

regard to employment, “unless it is shown that the partic-

ular disability prevents the performance of the work in-

volved.” P.L. 92-515 §4, October 21, 1972.

Third, the Court's denial of certiorari in this case has

created an anomaly which should not go uncorrected.

Respondent has interpreted this Court’s decision to mean

that the termination of employment at the end of the

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seventh month of pregnancy, without a hearing or con-

sideration of the individual’s ability to work, is “reason-

able” and not prohibited by the Fourteenth Amendment.

Houston Chronicle, Sec. 5, p. 4, January 10, 1973. Ap-

, the Respondent does not believe that it is bound

by the Equal Employment Opportunity Commission’s

new pregnancy regulations, 29 CFR §1604.10(b), despite

’ expansion of Title VII to include all state

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free to terminate employees at the end of the seventh, or

other “reasonable,” month of pregnancy. This is com-

pletely contrary to the broad Congressional policy against

discrimination in state personnel practices. See, 42 U.S.C.

5, 1971. Judicial action has created this inconsistent

treatment of public and private employers and employ-

ees, and this Court should act to eliminate that incon-

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in reaching its decision

Respondent’s policy, the

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and, that in the past he had certified his patients’ ability

to work until term for their employers.

This reliance upon the personal bias of a witness whom

the appellate court had not seen is inappropriate where

the trial court found that the Respondent had no factual

medical basis for its policy and that the only reason for

the policy’s continued existence was the imertia of his-

tory. 330 F.Supp. 328, 329. This finding was certainly

sufficient to carry Petitioner’s burden of proof under 42

U.S.C. $1983 and the Fourteenth Amendment.

Fifth, it is inconceivable that this Court would be so

sanguine as to permit a state agency to summarily fire a

black employee on the sole ground that he had contracted

a potentially debilitating disease—sickle cell anemia. Yet

that is what has happened here—this Court has declined

by one sex. Compare, Sprogis v. United Air Lines, 444

F.2d 1194, 1198 (7th Cir. 1971), a Title VII case.

This Court’s failure to face the issue of the rights of

pregnant women has created a very real threat of econom-

ic blackmail. The United States Air Force thought noth-

ing of asking Captain Struck to multilate her body to

retain her commission by submitting to an abortion.

Where abortion is legal, it is not unreasonable to expect

both public and private employers to resort to this kind

of pressure. It will be especially effective where the wo-

man’s threatened income is essential to her family’s finan-

cial security. The right to have offspring is a basic human

right. Skinner v. Oklahoma, 316 US. 535, 536 (1942).

The Respondent’s policy violates this basic right by re-

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quiring a woman to choose between her child and her job.

its policy is as irrational as the Air Force's policy in

in Struck’s case, as the policy in LeFleur, supra,

and as a policy which would predicate the continued em-

ployment of a male with prostate trouble upon castration.

In our culture, it does not reflect badly on a wife to

“let” her husband work with prostatitis, but husbands are

very sensitive about “letting” their wives work while preg-

nant. Surely we have left the Victorian Era when hus-

bands treated their wives like children. Women are adults,

capable of recognizing their capabilities and following a

physician’s advice. .

If it is true that women become so incapacitated dur-

ing pregnancy that they cannot do their work, then wo

men whose sole job is housework and the care of children

must be similarly incapacitated. Yet no agency demands

or provides “protection” for these women who perform

one of the most strenuous jobs in the country. Women are

allowed to scrub floors or clean clothes for free during

but not for money. It is not the doing of the

job that is prohibited, but the doing of it for hire. In short,

a pregnant woman can be a slave but not an employee.

A woman, even a pregnant woman, is a person with

individual abilities, defects, needs and desires. She is not

a box of film stamped “Do not use after September 1st.”

There is nothing magical about the eighth month of preg-

nancy that enfeebles a capable healthly woman. I ask no

favor, no preference, only that I be judged on my abilities

and treated for what I am—an individual.

Petitioner prays that her Petition for Rehearing be

_ granted and that a writ of certiorari issue to review the

judgment and opinion of the Court of Appeals for the

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Fifth Circuit entered in this proceeding on March 1,

1972, as amended, rehearing denied, June 5, 1972.

Respectfully submitted,

Mary ELLEN SCHATTMAN

Petitioner, Pro Se

12500 Dunlap, #247

Houston, Texas 77035

I certify that this Petition is filed in good faith and not

for purposes of delay.

Mary ELLEN SCHATTMAN