Amicus Curiae Brief — Geduldig v. Aiello

INDEX

rest of the Amicus Curiae . q

1 There i is A Rational Basis for Excluding Preg-

- nancy from Health Insurance Benefits and That

is the Proper Test to Use in Determining the

_ onstitutionality of the age .

1 1 The EEOC Guidelines Rela

Are Not Entitled to Judicial Deference ........

a „ Medieal Evidence Demonstrates 1 as teins

3 a Disability Caused by Pregnancy and This

| 4 The Provisions of the Health Insurance Plan

* Which Exclude Maternity Benefits Are Not

Discriminato

The Increased Cost of the Insurance

_ Affords a Reasonable Basis upon which to Deny

err „ „

——— PPP U PPUPU— VVB 2 „4„4„4„„46

Be ne 1

met v. Chicago Portrait Co., 285 U.S. 1 (1932)

—— of Education v. La Fleur, —U. 8.—

,,,, cs cacs

v. Williams, 397 U.S. 471 (1970) .........

32 American World Airway, Inc., 442 ‘jee

"385 (th Gir. 1971), cert. denied, 404 U.S. 950. .

10

14

ii Index Continued

Page

Franklin et al. v. Stromberg Carlson Corp. and IUE

Local No. 338, Case No. CS-27069-72 et al., New

York State Division of Human Rights (1973).... 8

Frontiero v. Richardson, 411 U.S. 677 (1973)........ 3

Graham v. Richardson, 403 U.S. 365, 372 (1971) 3

Jones Metal Products Co. v. Walker, 25 Ohio App.

/ ̃² AAA »A ĩ o ks caus ll

O’Gorman & Young v. Hartford Ins. Co., 282 U.S. 251

BEES Sea PRLS ee Oe ER Nea I 10

Reed v. Reed, 404 U.S. 71 (197i77777 3 u

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th

% ͤ ͤ ͤ AA ll

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 3

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ........ 45

Weeks v. Southern Bell Telephone & Telegraph Co., 408

eS RE Se U

Willi v. Macon Tele h Publishing Co., 482

F.2d 535 (5th Cir. 19787. „ ll

ConstrruTion anp STaruTss:

U.S. Constitution:

Fourteenth Amendment ..... o 31

Civil Rights Act of 1964, Title VII, 78 Stat. 253, as

amended by the portunity Act of 1972,

86 Stat. 103, 42 UAC. 20006 ot a hc 6,12

n viee esac niesiensccesesusba 4

IN THE

Supreme Court of the Auited States

OcroBEer TERM, 1973

No. 73-640

Dwicut GEpDULpIG, Appellant,

v.

CanoLyN Ao, Individually and on Behalf of All

Others Similarly Situated, Appellees

Dwicut Gori, Appellant,

v.

Avaustina D. ARMENDARIZ, ET AL., Individually and on

Behalf of All Other Women Similarly

Situated, Appellees.

BRIEF OF THE NATIONAL ASSOCIATION OF

MANUFACTURERS OF THE UNITED STATES OF

AMERICA, AS AMICUS CURIAE. IN SUPPORT OF

APPELLANT

With consent of the parties, the National Associa-

tion of Manufacturers of the United States of America

respectfully submits this brief as amicus curiae in

support of the appellant.

INTEREST OF THE AMICUS CURIAE

The National Association of Manufacturers (NAM)

is a non-profit voluntary business association, organized

as a membership corporation under the laws of th

State of New York. It is composed of manufacturing

and related concerns of all sizes located thro

the United States and represents a substantial parti

of the nation’s industrial employment. Most of its

members have maternity leave policies and may, there.

fore, be directly affected by the Court’s decision in

this case.

The NAM also has an interest in this case because

it involves a basic constitutional issue under the Due

Process and Equal Protection Clauses. of the Four

teenth Amendment to the Constitution which requires

resolution and clarification by this Court. The deei-

sion below, if left standing, will have far reaching

effects on labor-management relations because a sub-

stantial number of members have collective bargaining

agreements which contain provisions requiring pay-

ment of fringe benefits including health and disability

benefits. In addition, NAM members are subject to

the provisions of Title VII of the Civil Rights Act

The decision in this case may affect the Sex Guide

lines of the Equal Employment Opportunity Commis

sion which require that pregnancies be treated the same

as disabilities caused by sickness or disease. Thus the

ramifications of this decision will affect basic labor

management relations and policies.

Accordingly, the NAM has a proper interest in the

resolution of the issues before the Court in this cas.

3

ARGUMENT

L There is a Rational Basis for Excluding Pregnancy from

Health Insurance Benefits and that is the Proper Test to

Use in Determining the Constitutionality of the Statute

In determining the constitutionality of a statute

under the Equal Protection Clause of the Fourteenth

Amendment this Court has used two different tests.

In the first test, the statute is subject to “strict

serutiny and will be held invalid unless there is a

“compelling”’ interest to be protected. This test is

used where the statute involves a fundamental“ in-

terest or if it is based on a suspect classification. See

Shapiro v. Thompson, 394 U.S. 618, 627 (1969); Gra-

ham v. Richardson, 403 U.S. 365, 372 (1971).

In the other test a statute is valid unless it is with-

out “rational basis. See Dandridge v. Williams, 397

US. 471, 485 (1970).

In recent decisions of this Court involving sex dis-

crimination, Cleveland Board of Education v. LaFleur,

— U.S. — (decided January 21, 1974), Frontiero v.

Richardson, 411 U.S. 677 (1973), and Reed v. Reed,

404 U.S. 71 (1971), the stricter test used in the Graham

and Shapiro cases was not applied. Instead, this Court

examined the facts of each case to determine whether

there was a rational basis’’ for the classification. As

this Court stated in Reed v. Reed, supra, p. 76: “The

question presented by this case, then, is whether a dif.

ference in the sex of competing applicants for letters

of administration bears a rational relationship to a

state objective that is sought to be advanced by the

operation of §§ 15-312 and 15-314.“ Aceordingly, the

application of the statute involved in the present case

*

will be examined to show that the exclusion of women

on maternity leave has a rational relationship” ty

lawful objectives.

2. The EEOC —— — to Pregnancy Are Net

It is anticipated that the EEOC’s Guidelines relating

to the treatment of pregnancy will be used as a basis

for the contention that there is no ‘‘rational basis”

for the statute. The Guidelines provide, 29 CR

§ 1604.10:

r icon

nancy, a on, Tecoy-

2 are, for all job-related purpose,

er disabilities and should be treated as such

health or temporary disability insurance

or sick leave plan available in connection with

employment. Written and unwritten employment

policies and practices involving matters such s

the commencement and duration of leave, the avail-

ability of extensions, the accrual of seniority and

other benefits and privileges, reinstatement, and

payment under an * e

insurance or sick leave plan, formal or inf

shall be applied to disability due to p or

childbirth on the same terms and conditions as

they are applied to other temporary disabilities.”

It is submitted that this pronouncement by the EEOC

is entitled to little or no weight because the Guideline

does not meet the criteria established by this Court in

Skidmore v. Swift & Co., 323 U.S. 134 (1944) to be

applied to agency interpretations of statutes. That

case dealt with The Fair Labor Standards Act of 198

which set a minimum wage, provided for overtime pay

and regulated other employment conditions. An Ad

5

ministrator was empowered to bring suits in federal

courts to enforce the Act. The Administrator pub-

lished ‘interpretive bulletins’ to provide a practical

guide to employers and employees as to how the Act

would be applied. The lower court applied a rule

eontained in an interpretive bulletin to the facts of the

ease before it without analyzing the rule. This Court

reversed that decision and meticulously stated the eri-

teria to be applied to agency interpretations of statutes:

We consider that the rulings, interpretations and

opinions of the Administrator under this Act, while

not controlling upon the courts by reason of their

authority, do constitute a body of experience and

inf judgment to which courts and litigants

may properly resort for guidance. The weight

of such a judgment in a particular case will de-

pend upon the thoroughness evident in its con-

sideration, the validity of its reasoning, its con-

sistency with earlier and later pronouncements,

and all those factors which give it power to per-

suade, if lacking power to control.“ (page 140).

The Sex Guidelines issued by the EEOC stand on

the same footing as the interpretive bulletins consid-

ered in the Skidmore case and the same standard should

be applied to them. The Civil Rights Act was enacted

July 2, 1964 with an effective date of July 2, 1965. On

November 15, 1966 the EEOC General Counsel sent the

following letter :

„Gentlemen:

You state that under your collective ini

agreement male and female employees are

sick leave with pay. Female employees, however,

— eaves without pay; although

their terminated. You inquire

services are not

whether this policy is in compliance with Titz

VII of the Civil Rights Act of 1964.

The Commission policy with respect to pregnancy

does not seek to compare an employer’s treatment

or not it is ted for illness. On the other hand,

we do not believe that an employer must provi

the same fringe benefits for pregnancy as he pro

vides for illness, and, consequently, it is our dien

that 2 you describe is not in violation of

Title

Sincerely yours,

CHAN T. DUNCAN

General Counsel!

This remained the consistent position of the agency

until April 5, 1972, the effective date of the present

Sex Guidelines. Therefore, the present Guidelines are

not a “‘eontemporaneous construction’’ and there has

been no consistent interpretation of the statute by the

agency. The General Counsel’s opinion letter quoted

above is the interpretation which meets the Skidmore

criteria.

This Court has stated that where the administration

of a statute has not been uniform, an agency interpre

tation is not entitled to the highest respect or weight

In such a case the agency interpretation will be cm

2

=a

eS

7

sidered only to the extent that it is supported by valid

reasons. Burnet v. Chicago Portrait Co., 285 U.S. 1

(1982) ; Alecander . Cosden Pipe Line Co., 290 U.S.

494 (1934). It is submitted that the reasons stated in

the balance of the brief constitute a sufficient basis to

uphold the constitutionality of the challenged statute.

1 Medical Evidence Demonstrates the Uniqueness of a Dis.

ability Caused by Pregnancy and This Justifies Special

The basic purpose of the California Disability Insur-

ance Plan is to provide compensation to employees

when they are disabled due to a non-job related illness

or injury. Although all pregnant women experience

some period of disability as the result of their preg-

nancy, this disability is not due to illness or injury in

the vast majority of cases. One authority, Dr. John

C. Donovan, testified that:

“A J think I’ve testified that pregnancy per se

is a normal physiologic event, that it remains nor-

mal, excluding spontaneous inevitable abortions,

it remains normal somewhere around eighty to

eighty-five percent of instances, that in about fif-

teen to twenty percent of instances the pregnancy

is abnormal, that the abnormality may stem from

some complication inherent in the pregnancy or

the abnormality may be the result of the inner

action between the lowered reserves of the woman

and normal demands of the pregnancy, that by

no means all of these fifteen to twenty percent of

abnormal pregnancies is the patient clinically dis-

abled with respect to usual activities.

3 testimony that you have given today, is

just your own personal opinion or is this

generally accepted medical opinion?

5

A I think I can say quite authoritatively that it

is generally accepted medical opinion.

Dr. Donovan also testified that the length of time

women are advised to remain at home after the firs

seven to ten days following delivery is, for the most

part, due to sociological reasons. He testified:

SS ee question because you said

ically or clinically with the period of seven to

ten days. This added three, four, five weeks, see,

the doctor is wearing two hats. One hat says how

long the patient is at risk or is really disabled

The other hat says, has to do with the new

unit and the mother establishing a familiarity wi

a knowl of the baby and vice versa and I

think the added three or four weeks generally takes

in if we really dissect the reasons for it, generally

taking into account this perfectly needed adaptive

device in most —

Q This additional period of time of four weeks

or so is really a period of time to allow the mother

to adapt to the child and vice versa?

A Yes?

Later Dr. Donovan explained what he meant by

clinically disabled:

„By clinically disabled I have reference to the

fact that she was, during this period of time, at

1 Testimony of Dr. John C. Donovan acting chairman of th

Department of Obstetrics and Gynecology of Strong Memorial

Hospital and Professor of Obstetrics and Gynecology at the Uni-

versity of Rochester School of Medicine, in Franklin et al. ¥.

Stromberg Carlson Corp. and I. UE. Local No. 338, Case No. CS

27069-72 et al. before the state of New York, Executive Depart

ment, State Division of Human Rights, April 18 and July 10, 19%,

pp. 120-122.

2 Ibid., pp. 118-119.

9

t during this period of ten to twelve

was perhaps a continuing risk of infec-

tion in the genital area. There would be a risk

of hemorrhage, uterine hemorrhage. There would

de a risk of thrombosis of the veins, particularly

of the leg. None of these risks sta would

be

delivery and they are decreasing almost i-

Lana very, very markedly decreasing. t's

why I say ten-twelve days was conservative.

- Mainly she’s at risk, that’s what I meant by

clinically.

Thus the disability after pregnaney is more for

sociological than for medical reasons. The same socio-

logical factors are present before delivery and consti-

tute sufficient reason to excuse women from work during

that period as the following testimony demonstrates:

Q. What I understand from your testimony

that such a woman could work right up to her

beginning labor from a medical standpoint ?

A. Medical standpoint—normal patient, medi-

cally normal patient, normal pregnancy, there is

no medical reason [why] they cannot work until

the onset of labor. Again, assuming the job re-

quirements are compatible with a term abdomen.

Q. You testified that you have your own pa-

.

ou have your own priva

2 Phat Z r 5

Q Iny

~

ai

Fe

bing i Doctor, have all

our experience, r, have your

ee right up to the time of delivery

or labor

A. Some. Certainly not all.

Q. And for those who haven’t, why have they

sto working sooner !

Some would ask — many would just stop

working and not bringing it to my attention in

— (—

* Thid, pp. 594-595.

10

terms of an excuse, et cetera. Others would want

an excuse to stop working because they felt certain

preparations had to be made and buy a layette

and things of that nature. They didn’t feel lik

working. Their attentions were not so interested

in the job any more. Others had mild

2 They did not feel like working.

In those cases where they have asked for

— 1 in silicates from you, have you given it

to them?

A. Yes.

R

a m poin

could continue to work ? mae

A. Yes. If I may attempt to clarify tht

current contradiction, one point is that the excuse

I would usually write would be that the patient

coe be excused from working. In other words,

FD ce N

owever, medically such a person would not

— an illness or sickness ?

A. Correct. I don’t think I would write an

excuse saying she could not work.

Based upon the expert testimony reviewed above it

seems evident that the disabilities arising from preg

nancy are not the same that would arise from an illnes

or injury. Thus much of the time women remain at

home is for sociological rather than for physical rea-

sons. Because of this, the exclusion of pregnancy from

the disability insurance program has a rational rela-

tionship to the purpose of the legislation.

4. The Provisions of the Health Insurance Plan Which Exclude

Maternity Benefits Are Not Discriminatory

Discrimination is different treatment of individuals

under the same or similar circumstances. Legislation

* Tbid., pp. 600-602.

11

in this area and decisions of courts are based upon the

premise that all people are created equal. Where a

race or a sex is treated differently because of antiquated

there is unlawful discrimination. Acting

upon that premise this Court has held that a provision

of the Idaho Probate Code which gave preference to

men over women in applying for letters of administra-

tion violated the Equal Protection Clause of the Four-

4eenth Amendment. See Reed v. Reed, 404 U.S. 71

(1971). Similarly state ‘‘protective’”’ statutes which

limited the weight a woman could lift on her job

have been found unlawful because they prevented some

women with ability from performing those jobs. See

Weeks v. Southern Bell Telephone d Telegraph Co.,

408 F. 2d 228 (5th Cir. 1969); Rosenfeld v. Southern

Pacific Co., 444 F.2d 1219 (9th Cir. 1971) ; Jones Metal

Products Co. v. Walker, 25 Ohio App. 2d 141 (1971).

Billy Jean King has shown us that sex stereotypes are

not accurate. There are always exceptions and that ex-

ceptional person may not be penalized because most

persons in the class would not be qualified.

This disparate treatment has also been held unlawful

where men were excluded from jobs because of their

sex. For example, it has been held that an airline

policy of hiring females exclusively for the position of

flight attendant was unlawful because men could give

courteous, personalized service during flights as well

aswomen. See Diaz v. Pan American World Airways,

Inc., 442 F. 2d 385 (5th Cir. 1971), cert. denied 404

U.S. 950.

In Willingham v. Macon Telegraph Publishing Co.,

482 F. 2d 535 (5th Cir. 1973) the Court considered

whether the refusal to hire a male because he had long

12

hair was discrimination based on sex. The Court

stated, page 428, that a grooming code requiring dif.

ferent hair lengths for male and female job applicant

discriminates on the basis of sex within the meaning

of Section 703 [of the Civil Rights Act of 1964]. Suc

a code treats applicants differently because of a sex

stereotype: only males are prohibited from i

their hair long. Section 703 does not permit on

standard for men and another for women where both

are similarly situated.

Laws and business practices were condemned in the

above cases because they denied opportunity to a whole

group based on an inaccurate stereotype. The NAM

subscribes to the rationale used in those cases. Hoy-

ever, the above-cited cases do not resolve the issue

presented to the Court in the present case. Here we

are concerned with a physical difference between men

and women. Men cannot bear children. This is a phys

ical difference between the sexes. There is no stereo

type, prejudice or male chauvinism involved in the

present case. We are concerned with a unique condi-

tion of women. Pregnancy cannot be equated to dis

abilities caused by sickness or disease because preg-

nancy is not a sickness or disease. Pregnancy is a

condition unique to women and employers should be

free to treat it as such. Women cannot be placed at

a comparative disadvantage vis-a-vis men by such treat-

ment because there is nothing to compare to men

Unique conditions may require special treatment and

that should not be considered unlawful discrimination.

As long as a woman is permitted to return to her job

after pregnancy she is not placed at any competitive

disadvantage with men. The law should require ™

more.

. 88 1

Ne

13

.

3 Basle Upen Which —

Pregnancy

This case involves the California Disability Insur-

mee Program which is attacked for the failure to treat

as a disability. The Disability Insurance

Program, together with Workmen’s Compensation In-

surance and Unemployment Insurance constitute the

insurance program of the State of California in which

benefits are provided for employees. The Disability

Program was designed to provide compensa-

ps ee who became unemployed due to non-

job related illnesses or injuries. This plan is financed

by a one percent employee contribution. The amount

of the employee contribution has remained the same

sinee the inception of the program in 1946. Coverage

has been expanded over the years as funds permitted.

This history of the plan is reviewed in detail by Judge

Williams in his dissenting opinion (Appellant’s Juris-

dictional Statement, Appendix pp. 21-26). The sta-

tisties regarding the operation of the plan show that

women receive $1.37 for each dollar contributed, and

men receive only $0.89 for each dollar contributed. To

add pregnancy to the covered disabilities would in-

crease the cost of the plan 30 percent (Judge Williams’

opinion, Appellant’s Appendix, p. 19, footnotes 1 and

2). This would necessitate raising the contribution

rate or restricting benefits. Such a change, however,

would frustrate the valid legislative purpose of pro-

viding the broadest coverage possible while limiting

limit benefits where necessary to accomplish its valid

objectives.

The effect of the lower court’s decision would be to

substantially increase the cost of this and countless

14

other health plans throughout the country. It woud

encourage women to make planned use of the me

by securing employment shortly before they 1

plated bearing children. This type of planning is ng

possible with other disabilities and it could

place substantial additional financial burdens on —

ance programs. This Court has held that

based upon economic consideration are valid. O

man & Young v. Hartford Ins. Co., 282 U.S. i |

(1930) and Borden’s Co. v. Baldwin, 293 U.S. m™

(1934). Therefore, from a practical viewpoint ther

is a reasonable basis for the exclusion of N

in the benefits covered.

*. 5

2

eS.

2

CONCLUSION

It is respectfully submitted that based upon 8

unique nature of pregnancy, the fact that it does no

involve competition with men, the medical evident a.

showing the sociological nature of the disability, md

economic factors, there is a rational basis for treating |

a disability caused by pregnancy differently from ade

ability caused by sickness or disease. Therefore, § : |

an insurance plan should not violate the Equal Pros

tion Clause of the Fourteenth Amendment and the de „

sion of the lower court should be reversed. Ss

Respectfully submitted,

NATIONAL ASSOCIATION OF MANUFACTURERS —~

OF THE UNITED STATES OF AMERICA

RicHarp D. Gopown

General Counsel

Myron d. Hux, In. *

Assistant General Counsel

1776 FS N.W. 4

3

* od

February, 1974

3 Receive a Disproportionate Advantage

nder Existing Disability Plans Even Where

Benefits for Normal Pregnancy Are Not

/ ˙ AA.; Ä 8

. of Normal Pregnancy Would Increase

Costs Substantially and Increase the Dispro-

pPortionate Advantage to Female Workers .... 9

III. The Low Return Rate Makes Maternity Leaves

nike Sickness and Accident Disabilities for

TABLE OF AUTHORITIES

a. Honsen, 359 F Supp. 792 (N. D. Cal. 1973) . 7, 8, 9

wican Newspaper Publishers Association v. Alex-

aader, 294 F. Supp. 1101 (D-D.C. 1968) ......... 4

Board of Education v. La Fleur—U.S.—,

U.S. L. W. 4186, 6 FEP Cases 1253 (January 21, —

* = * eee ee 5

9 442 F. 2d 159 (3d Cir.), cert.

0 ah US. 854 (1971) ......... 3 4

N Long Lines Department, o. 73.

336 pf aa oe Be te 3

‘Ay. Bell Tel. Co., No. 73-C-959 (N. D. III.,

April yh TT eee 3

ii Index Continued

Pap

CWA v. South Central Bell Tel. Co., C. A. No. 73.1171

ion A (E.D. La., Filed July 5, 1973) 3

Edgely dir Products, Inc., Docket No. CCI,

8710 Empl Prac. Guide { 2774.20 (March 2

pals Cavowcds seek ones ene heh eo ck ce 4

Srarurns:

Title VII of the Civil Rights Act of 1964, as amended

by the Equal Employment Opportunity Act of

1972, 42 U.S.C. 58 SRE 8 2

Equal Employment Opportunity Act of 1972, Pub. L.

92-261, 86 Stat. 103 (March 24, 1973) ........... 3

Ormm AUTHORITIES:

— — oko ocd cap ctvccorccsaceene 2

6... Se ee 4

38 Fed. Reg. 35336-35338 (December 27, 1973) ........ 34

38 Fed. Reg. 3537 (December 27, 1973) ............ +

Department of Health, Education, and Welfare, Acute

Conditions, Incidence and Associate Disability

. ˙;ꝛð² iN ˙ ü 11-2

Page

Department of Health, Education, and Welfare, Cur-

rent Estimates from the Health Interview Survey

— — 11-12

Executive Order 11246, as amended by Executive Order

11375

Memorandum of John L. Wilkes, Director, Office of

Federal Contract Compliance, to Agency Heads

3y4%0evſ MED” ive cevcncesntvesencsceses a

Supreme Court Rule 42(2) ......................-. 1

Testimony of George Travers, Assoc. Dir., Plans,

Policies & Programs of the Office of Federal Con-

tract 2 — before the Joint Economie Com-

mittee of Congress on the Economie Problems of

Women, Report of Proceedings, Vol. 2 (July

77 TTT 45

IN THE

Supreme Court of the United States

Ocroser TERM, 1973

No. 73-640

Dwicut GEDULDIG, Appellant,

v.

CAROLYN AIELLO,

Individually and on Behalf of

All Others Similarly Situated, Appellees.

Dwicut Gepupic, Appellant,

v.

Avcustina D. ARMENDARIZ, ET A.,

Individually and on Behalf of All

Other Women Similarly Situated, Appellees.

Consolidated Cases on Appeal from the United States District

Court for the Northern District of California

BRIEF OF THE AMERICAN TELEPHONE AND

—— —-—„—

INTEREST OF THE AMICUS CURIAE:

The American Telephone and Telegraph Company,

together with the Associated Bell Companies (herein-

"This brief is filed pursuant to Supreme Court Rule 42(2).

Written consent of Appellant and Appellees has been obtained

tad filed with the Clerk of the Court.

2

after, Bell System Companies), is the largest privat

employer in the nation, and almost 50 percent of in

employees are women. The Bell System Companies

are employers subject to the requirements of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.

§§ 2000e et seq., and are federal contractors subject tp

the requirements of Executive Order 11246, »

amended by Excutive Order 11375. Both Title VII

and the Executive Order prohibit employment dis

crimination on the basis of sex.

In connection with employment, Bell System Com

panies maintain disability programs which provide

wage continuation benefits for employees disabled

work because of sickness or accident. While all thes

plans provide benefits for disability absences resulting

from pregnancy complications and abnormal preg

nancies, none provides wage continuation benefits for

absences attributable to normal pregnancy and child

birth.

In 1972 the Equal Employment Opportunity Com

mission (EEOC) revised its Sex Discrimination

Guidelines, so that for the first time they interpreted

Title VII as requiring that normal pregnancy be

treated as a temporary disability under any health

or temporary disability insurance or sick leave pla

available in connection with employment.” 29 CFR

§ 1604.10(b). Recently suits have been brought hy

ee es rr

leave for pregnancy and childbearing whose length is determine

on a case-by-case basis. The time of beginning and ending =

ternity leave is basically determined by the individual —

the advice of her doctor.

3

private parties against six Bell System Companies, *

as well as other private employers,‘ alleging that the

failure to provide sickness and accident disability

benefits for normal pregnancy violates Title VII. The

resolution of the present case will undoubtedly have a

substantial effect on the cases pending against private

employers under Title VII.“

The impact of the decision in the present case on

private employers was made even more direct by a

recent announcement from the Office of Federal Con-

tract Compliance (OFCC), which administers and

enforees the Executive Order program. On December

N, 1973, OF CC invited public comments on proposed

revisions to its Sex Discrimination Guidelines. 38

CWA v. Illinois Bell Tel. Co., No. 73-C-959 (N. D. III., Filed

April 13, 1973); CWA v. Southern Bell Tel. & Tel., No. 18328

(ND. da., Filed May 17, 1973); CWA v. AT&T Long Lines De-

partment, C. A. No. 73-3353 (S.D.N.Y., Filed July 31, 1973);

(MA y. New York Tel. Co., C. A. No. 73-3352 (S.D.N.Y., Filed

July 31, 1973); CWA v. The Pacific Tel. & Tel. Co., C.A. No.

C-73-1739 RFP (N.D. Cal., Filed Sept. 28, 1973); and CWA v.

South Central Bell Tel. Co., C. A. No. 73-1771 Section A (E. D. La.,

Filed July 5, 1973).

*E.g., Grogg v. General Motors Corp., 73 Civ. No. 63 (KTD)

(8 DN. T., Filed Jan. 4, 1973); Gilbert v. General Eleetrie Co.,

No. 142.7 2-R (E.D. Va., Filed Mar. 15, 1972). To date there

are two conflicting district court decisions on the issue: Compare

Newmon v. Delta Air Lines, Inc., — F. Supp. — (N.D. Ga. 1973),

Daily Labor Report No. 18 at F-1 (Jan. 25, 1974), with Wetzel v.

Liberty Mutual Insurance Co., — F. Supp. — (W.D. Pa. 1974),

Daily Labor Report No. 15 at D-1 (Jan. 22, 1974).

Nom that Title VII has been made applicable to the employ-

ment practices of state and local governments by the Equal Em-

ployment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103

(Mareh 24, 1972), the need for consistency in the principles ap-

plicable to public and private employers is particularly apperent.

See Cleveland Bd. of Educ. v. La Fleur, — U.S. —, 42 U.S. L. W.

4186, 6 FEP Cases 1253, 1256 n.8 (January 21, 1974).

.

Fed. Reg. 35336-35338. Among the changes under eon

sideration is a provision which would require federal

contractors to provide sickness and accident disability

benefits for absences from work due to normal preg.

nancy.“ The notice which solicited comments on this

proposal explained that OFCC was reconsiderin

“some unsettled questions regarding leave on accom

of the condition of pregnancy which are presently being

subjected to judicial scrutiny,” and specifically noted

that:

The OF OC, however, recognizes the need to em |

tinue to be guided by pertinent judicial decision,

oe expected to be rendered by th

Thus, the Court’s resolution of the present case may

well determine whether OFCC adopts its proposed

guideline requiring disability pay for pregnancy. I

is important to emphazise that unlike EEOC’s Guide

lines, which do not have independent force or effect

the OFCC Guidelines constitute an order to feder

contractors. A failure to comply with their require

ments can result in ineligibility for government em

tracts. *

This would constitute a reversal of OFCC’s present postin

that, There is no requirement that an employee be paid dur

absence [for maternity leavel. Memorandum of John L Wik

Direetor, OFCC, to Agency Heads (Nov. 12, 1970) at 5.

American Newspaper Publishers Ass’n v. Alexander, 2% F.

Supp. 1101, 1103 (D.D.C. 1968). See Espinoza v. Farah Mfg G.

94 8. Ct. 334 (1973).

*41 CF. R. § 60.2.2; Contractors Ass’n of Eastern Pa. v. Sex

tary of Labor, 442 F.2d 159 (3d Cir.), cert. denied, 404 US. .

(1971); Edgely Air Products, Inc., HEW Docket No. CC-1, OCH

Empl Prac. Guide 1 2774.20 (March 23, 1971).

In testimony before the Joint Boonomie Committee of Cau:

on the ‘Economie Problems of Women” on July 11, 197%, *.

3

aes

5

INTRODUCTION

The Bell System Companies have been

with the question before the Court since the promulga-

tion of the revised EEOC Guidelines. This concern

was sharpened by the filing of six law suits challenging

Bell System sickness and accident disability programs,

and by OF CC’s proposal to revise its Sex Discrimina-

tion Guidelines. Therefore, the Bell System Com-

panies have had occasion to review the operation of

these programs and to collect and collate extensive

data regarding the present treatment of men and

women under such programs; the cost and benefit im-

pact of adding coverage for normal pregnancy; and

the comparative, employment-related characteristics

of maternity leaves and disability absences. Since

this data relates to a very large number of employees,

almost half of whom are women, working throughout

George Travers, Assoc. Dir., Plans, Policies & Programs of OFCC,

was asked to explain the conflict regarding maternity benefits

between the OFCC Guidelines and those of EEOC. He stated

that the issue was under study and then noted:

One of the serious questions that has arisen about our pro-

posed revisions to the guidelines is that unlike the EEOC

guidelines, our regulations would be an order to government

contractors. Many of the employers are now waiting on pend-

ing suits over the guidelines to settle the questions. So that a

legal question has been raised about whether or not we should

order government contractors to conform to the EEOC guide-

lines, knowing that there are legal questions being raised.

Report of Proceedings, Vol. 2 at pp. 126-127.

* Bell System Companies had approximately 894,505 employees

eligible for benefits in fiscal year 1970-1971, and approximately

999,752 eligible employees in fiscal year 1971-1972.

Women constituted approximately 48.57% of the eligible work

foree in 1970-1971, and approximately 48.29% of the eligible work

foree in 1971-1972.

6

the United States, it is a reliable “sample”’ of evidence

relevant to the issues in this proceeding.

It is of particular concern to the Bell System Com

panies that a good deal of the debate, and even some of

the legal decisions, on the issue of mandatory maternity

benefits, has proceeded in a conclusory fashion, either

ignoring, or professing ignorance of, important mat

ters of fact. For example, the EEOC reversed in

long-standing interpretation on the question, without

any statistical analysis or reference to medial

opinion. Even where some information has ben

available, the analyses often have been based on er.

roneous assumptions. This is exemplified by the r

cent decision in Wetzel v. Liberty Mutual Insurance

Co., — F.Supp. — (W. D. Pa. 1974), Daily Labor Re

port No. 15 at D-1 (January 22, 1974), where the ds

trict court supported its conclusion that Title VI

required that disability benefits be paid for norm

pregnancy, by comparing pregnancy to the predan

inately male condition of gout.“ Moreover, the court

rejected employer justifications based on cost with th

following unsupported and unsupportable conclusion:

We may assume from a general knowledge of the

conditions of life, that in the normal or ual

8 of disability will be ree

ae chek. is nothing in this record

u The history of EEOC’s change in interpretation, as well u

the reasons why its current guideline should not be followed, s

discussed in the respective amicus curiae briefs of The Chamber

of Commerce of the United States of Ameriea and General Electre

Company, filed in support of the Jurisdictional Statement.

u See deposition of Sonia Fuentes, former Chief of EEOC:

Legislative Counsel Division, quoted in the amicus curiae brief d

Delta Air Lines filed in Cleveland Bd. of Educ. is

at Appendix, 44-52.

7

show, and nothing in our general experience with

1 Sage sag that the job-related incidence of oe

ity for pregnancy is any greater or any

than that for prostatectomy. (Emphasis added.)

The Argument which follows, based on the actual ex-

periences of Bell System Companies, shows that this

factual assumption is dramatically erroneous.“ Of

most direct concern for the present case, the court be-

low professed an inability to properly evaluate the

comparative cost implications of covering normal

pregnancy under the California disability insurance

program, since, no statistics are available indicating

the cost to the program of paying benefits on account of

various disabilities presently covered.” Aiello v.

Hansen, 359 F. Supp. 792, 798 (N.D. Cal. 1973).

In an effort t6 prevent further decision on these

important questions from being made in a factual

vacuum, the Bell System Companies responded to

OFCC’s request for public comments on the proposed

revisions to its Sex Discrimination Guidelines by sub-

mitting a summary of pertinent data regarding the

operation of their sickness and accident disability pro-

grams. Because the Court’s resolution of the present

case will undoubtedly influence both the determination

by OFCC and the outeome of pending cases under

Title VII, these public comments are attached as an

appendix to this brief. The Argument which fol-

lows highlights the findings in that data and is offered

™ ges infra note 17 & text and infra note 28, oe

| * This information should be especially pertinent to the present

| case since Bell System disability programs, like the California

| Unemployment Insurance Code as presently constituted, include

8

to the Court to assist it in assuring that this im

portant legal determination, which will have a massive

impact on both public and private employers, will not

be based on erroneous factual assumptions.

ARGUMENT

I. Women Receive a Disproportionate Advantage Under Ex-

isting Disability Plans Even Where Benefits for Normal

mena Are Not Provided

The present distribution of benefits between men and

women under the sickness and accident disability plans

of the Bell System Companies confirms the experience

of the California Unemployment Insurance Code.“

Even without considering absences relating to normal

pregnancy, women have a greater frequency rate

(number of disabilities), and severity rate (duration

of disabilities) than men. In fiscal years 1970-1971

and 1971-1972, women had a higher frequency of dis-

abilities and lost more total days from work in sixteen

of the seventeen disability group classifications." In

1970-1971, women accounted for 64.65% of the total

days for which benefits were paid, even though they

were only 48.57% of the total work force eligible for

benefits. Similarly, in 1971-1972, women received

compensation for 63.45% of the total benefit days

8 In his dissenting opinion Judge Williams noted:

*

Women contribute only 28% of withholdings but draw 38%

of the benefit payments. Put another way, men receive $89

per dollar contributed while women receive $1.37 per dollar

contributed. -

Aiello v. Hansen, 359 F. Supp. at 802 n.1.

be one exception in both periods is Diseases of circulatory

system’’ (Group 7), which includes heart attacks and other cardise

problems. ' ae

though representing only 48.29% of employees eligible

for benefits.

The seventeen disability group classifications, with

the exceptions of Complications of pregnancy, child-

birth and puerperium’’ (Group 11), and “Perinatal

morbidity and mortality (Group 15), contain com-

parable conditions, including some conditions which

are unique to one sex. Thus, while prostate trouble

may be unique to males, when considered with other

“Diseases of the genitourinary system (Group 10),

women have a considerably higher frequency rate and

dramatically greater number of total days lost.“

Likewise gout, which Wetzel cited as a predomi-

nately male condition, is classified among ‘‘Endoctrine,

nutritional and metabolic diseases (Group 3), with

women again having a higher frequency | rate and num-

ber of total days lost.”

IL Coverage of Normal Pregnancy Would Increase Costs

Substantially Disproportionate Advantage

Calculations based on data collected by the Bell

System Companies also confirms California’s con-

clusion that the provision of benefits for normal

pregnancy would substantially increase the cost of a

disability program. This data also addresses the

question which the court below considered unre-

solved,” indicating that coverage of normal pregnancy

n See Wetzel v. Liberty Mutual Ins. Co., supra at 6-7.

"$74,707 for women to 66,982 for men in 1970-1971; 391,224

for women to 71,290 for men in 1971-1972.

” 58,785 for women to 28,951 for men in 1970-1971; 58,695

for women to 32,832 for men in 1971-1972.

™ See Aiello v. Hansen, 359 F. Supp. at 798, quoted supra at 7.

would generate a significantly greater number of total

disability days than any other category of sickness or

injury, even combining the data for men and women

Based on a substantial survey, it was detérmine

that female Bell System employees experienced ap

proximatly 21,700 pregnancies in fiscal year 1900

1971, and approximately 23,000 pregnancies in fiseal

year 1971-1972. It is impossible to precisely fix the

average term for which benefits would have been pro

vided if normal pregnancy had been covered, sine

estimates of the period of actual disability connected

with normal pregnancy range from less than six wen

to six months.“ However, assuming an average dun

tion of eight weeks,” normal pregnancy would have

accounted for 1,215,200 disability days in 1970-191

and 1,288,000 disability days in 1971-1972" Had

normal prgnancy been compensated, women, wh

represented 49% of the System’s work force in 19

1971, would have received benefits for 72% of the total

disability days. In 1971-1972 women would have a-

counted for 71% of all benefit days though constituting

only 48% of total employees eligible for benefits.

10

21 See Appendix at 6a-7a. This Court's recent decision in Cl

land Bd. of Educ. v. La Fleur, supra, recognized the ‘‘plethon

of conflicting medical testimony, on the duration of any ina

to work connected with pregnancy. Slip opinion at 11.

22 This period is substantially less than the 15-week average d

claims submitted to the State of California since the decision below.

23 It is illuminating to compare these estimates with the 6698

and 71,290 days lost by men in 1970-1971 and 1971-1972, r.

tively, due to all Diseases of genitourinary system, of whid

prostate trouble is only a part. Seé Wetzel, discussed supre at $1.

11

Based on these calculations, together with the aver-

age salary and seniority of eligible women, system-

aie costs for disability benefits would have been in-

ereased by $15,762,663 in 1970-1971 and $19,037,330 in

1711972.“ However, the impact on the present dis-

tribution of sickness and accident disability benefits

would be even more dramatic. If pregnancy had been

eovered in both of the survey years, 5% of eligible

women, or approximately 2.5% of the System’s work

foree, would have accounted for approximately 21%

of the total days for which disability benefit payments

were made. No other single disability group—even

including both sexes—could generate so large a number

of * days for which benefits would be paid.“

"i Pregnancy alone would have accounted for 14.47% and 13.9%

ete. Moreover, the estimate is based on the assumption of an

average disability period of eight weeks. Payment for the full,

average maternity leave period of 514 months would have increased

these costs to $32,739,007 and $39,539,070, respectively.

*The statistics from the U.S. Department of Health, Education,

and Welfare, Current Estimates from the Health Interview Survey

(1967), eited by Appellees in their Motion to Affirm at 15, will

3

IIL. The Low Return Rate Makes Maternity Leaves Ua

Sickness and Accident Disabilities for Job-Related Purpoam

Neither the Constitution nor Title VII require

States or private employers to provide any disability

benefits, and the Bell System Companies agree with

the State of California’s conclusion that its decision

to provide protection against illness and injuy

should not obligate it to provide benefits for another

condition which cannot properly be classified as either

an illness or a disability. The Bell System Com

panies also agree with the State of California’s eo.

clusion that absences from work for pregnancy an

childbirth are substantially different from absences

caused by sickness or accident disabilities. Perhay

the most significant distinction for private employer,

who consider disability benefits as part of an overall

compensation package, is the difference in return rates

for the workers in each category.

A survey of maternity leaves and absences caused by

sickness and secident disabilities conducted by In

Bell in 1972 showed that only about 3% of those who

not associated with a spell of illness, is not included in the eh

mate.

U.S. Department of Health, Education, and Welfare, Accute C

ditions, Incidence and Associated Disability (1970-1971) at 24

(emphasis added).

Therefore, the ‘‘days of restricted activity’’ reported for “De

liveries and Disorders of Pregnancy and the Puerperium” n

Tables 3 and 4 (Motion to Affirm, Appendix A) are more nearly

comparable to the complicated and abnormal pregnancies presently

covered by the California and Bell System plans (Group 11, Grow

15) than to the work- loss days which would result from the e.

erage of normal pregnancy.

*The vast majority (almost 90%) of those who did not ru

FF. Seabliitg hed ilar Ot ae

eligible for a company pension. az

13

had been disabled failed to return to work while over

48% of employees who took maternity leave did not

return following their leave. Projecting this estimate

for the System as a whole, 7.6 and 9.1 million dollars

of the estimated cost of providing maternity benefits

in the respective survey years, would have gone to

claimants who never returned to work. These pay-

ments would have been inconsistent with the disability

programs’ basic purpose of providing a bridge between

periods of employment and would have constituted a

unique form of severance pay.

CONCLUSION

The Bell System Companies believe that the infor-

mation submitted based on the operation of their sick-

ness and accident disability programs confirms the

State of California’s assertions regarding the impact

of covering normal pregnancy under its disability in-

surance program. The inclusion of such benefits

would be most expensive and would further expand

the disproportionate advantage women presently en-

joy in disability plan benefits. The data further

demonstrates that normal pregnancy, if eovered, would

account for a larger amount of benefit payments than

any other category of sickness or accident disabilities.

Finally, data regarding the rate of return for workers

ing maternity leave and following disability

absences, shows that the two conditions are signifi-

cantly different for employment-related purposes.

Based on these considerations, the Bell System Com-

panies contend that it is unreasonable to require a

State or private employers to treat normal pregnancy

as they treat sickness and accident disabilities.

3

14 8

They, therefore, urge that the decision of the dite

court be reversed.

Respectfully submitted,

F. Mark GARLINGHOUSE

Vice President and

General Counsel

CHARLES RYAN

General Attorney

CLaxkK G. REDICK

Attorney

American Telephone and

Telegraph Company

195 Broadway ;

New York, New York n

Attorneys for the Amicus Curias

STEPTOE & JOHNSON E

1250 Connecticut Avenue, N.W.

Washington, D. C. 20036

Dated February 8, 1974.

la

APPENDIX

“AMERICAN TELEPHONE AND TELEGRAPH COMPANY

sated 2000 L STREET, NORTHWEST

WASHINGTON, D.c. 20036

202-466-5557

Assistant Au D ATTORNEY

= January 28, 1974

1 a if J. Davis

Office of Federal Contract Compliance

I Department of Labor

With and Constitution Ave., N.W.

shin D.C. 20210

in response to your request, I am transmitting the en-

tloeed data relevant to the proposed revisions to the

Ode of Federal Contract iene Sex Discrimination

- Guidelines, 38 Fed. Reg. (Dee. 27, 1973), on

behalf of the American Telephone and Telegraph Company

- and the Associated Bell Companies. This data focuses on

proposed Section 6020.3 (h) (2), which provides in part:

8 1 verifiable disabilities * or —

tf pregnancy, miscarriage, rtion, childbi

_ and recovery therefrom are for all job-related pur-

poses, temporary disabilities and be treated as

_ Sach under any health or temporary disability in-

__ Surance policies or sick leave plans available in con-

is section would reverse the present position of

UFUC that, There is no requirement that an employee

P ged absence [for maternity leave]. Memo-

um of John L. Wilks, Director, OFCC, to Agency

ds, November 12, 1970, at 5.

2a

Without regard to legal arguments against adoption o

proposed Section 60-20.3(h)(2), which undoubtedly will he

developed by other interested parties, the attached dan

statistically demonstrates: (1) the present treatment of

men and women under the Companies’ sickness and 4

cident disability plan; (2) the cost and impact on the mak

and female share of disability benefits which would on

if normal pregnancy were treated as a sickness or accident,

and (3) the fact that nearly half of those taking maternity

leave do not return to work which sharply distinguishs

the nature of their absence for employee benefit purposy

from accident and sickness absences.

Based on this data, as well as the settled medical opinia

that pregnancy is neither a sickness nor accident, we ump

that OFCC ot adopt proposed Section 60-20.3(h)(2),

but maintain its present position that federal contracton

need not provide sickness and accident benefits for preg.

nancy.

L Sarrerriretp

Executive Assistant

& Attorney

Bell System Data Relevant to Proposed Revisions in OFX

Sex Discrimination Guidelines Regarding Treatmest d

L. Lstropuction

Recently, six companies in the Bell System (Time,

Southern, South Central, New York, Long Lines af

Pacific) have been sued by parties attacking the legaliy

of their sickness and accident disability programs. Te

crux of these charges is that the failure to treat nm

pregnancy as a disability under sickness and accident d-

ability programs, constitutes discrimination against fu

employees on the basis of sex. Other major emp

3a

guch as General Motors, General Electric, and Delta Air

Lines,’ are facing similar legal challenges, and initial

court decisions are now being rendered. For example, a

federal district court in Atlanta recently held that Delta

Air Lines could not require female employees to leave work

at a specific time prior to delivery, but that absence due to

and childbirth need not be covered under an

accident and sickness disability program. Newmon v.

Delta Air Lines, Inc., Civ. No. 15681 (N.D. Ga., Dec. 31,

1973). But see, Wetzel v. Liberty Mutual Insurance Co.,

Civ. No. 72-169 (W. D. Pa., Jan. 9, 1974).

Since no company in the Bell System treats normal

pregnancy as an accident or sickness disability, the im-

plications of these pending cases will reach beyond the

companies directly involved. Every company in the

System will be affected by the results of these suits. In

light of these legal challenges to current sickness and

sccident disability programs, it is appropriate to review

the operation of the Bell System sickness and accident dis-

ability program and to estimate its current effect on em-

ployees and the effects which would result by treating

pregnancy as a sickness or accident disability.

IL Paesent Disapmrry Plans

The sickness and accident disabilities of Bell System

employees are classified, for record keeping purposes, into

seventeen basic groups (see Table 1) which cover every

disability recognized under the various plans within the

System. For example, disabilities are grouped into in-

fective and parasitic diseases, mental disorders, diseases

of the circulatory system, the digestive system, the mus-

culoskeletal system, and even accidents, poisonings and

Violence. Within each of these groups, the System’s

‘Groggy v. General Motors Corp., 73 Civ. No. 63 (KTD) (85.

N-Y.); Gilbert v. General Electrie Co., No. 142-72-R (E.D. Va);

Newmon v. Delta Air Lines, Ine., Civ. No. 15681 (N. D. Ga).

' —

records reflect, by sex, the frequency of occurrence of ead

group of disability, the number of disability absences, and

rr Tables $end 3).

An examination of the Bell System sickness and accident

disability figures for the fiscal year 1970-71 (see Table 2),

reveals that in sixteen of the seventeen disability grow

classifications the frequency rate of women absent from

work was higher than for men; the number of cases of

women disabled was higher than for men; and women lost

more total days from work than men.“ Finally, an ex.

amination of the severity rate (average duration) of these

absences indicates that women were generally absent fors

longer period than men. While women were 48.57% of

the System’s total work force eligible to receive disability

payments as of December 31, 1970, a review of the System’

disability statistics, including all disability groups, reveak

that they received wage benefits for 64.65% of the total

days for which such benefits were paid during fiscal year

1970-71. Thus, even without treating normal pregnancy

as a sickness or accident disability, in fiscal year 197071

women collected benefits for a percentage of days far in

excess of their percentage of the company work force. It

should be recognized that-wage replacement benefits were

paid to women absent on account of complications 1

pregnancy and childbirth. *

Fiscal year 1971-72 reflects the same sort of pattern u

1970-71 (see Table 3). In the same sixteen of seventen

disability group classifications, women were absent ats

higher rate than men; experienced more disabilities thm

men ; and lost more days from work than men. Finally, s

2 The one disability group category where men are absent ss

higher rate than women, experience more disabilities than

and lose more disability days than women is diseases of the

tory system, which includes heart attacks and similar eardise pb

lems. (See Tables 2 and 3.) 2

* See classifications 11 and 15, Tables 1, 2, and 3. ais

5a

statistics again show that generally, when absent, women

were absent for longer periods than men. Although

women made up 48.29% of the Bell work force eligible for

disability payments as of December 31, 1971, they accounted

for 63.45% of the total days for which benefits were paid

in all disability groups during fiscal year 1971-72. Again

this disproportionate figure reflects the present operation

of the Bell Companies’ disability programs, which are

under attack, and which do not treat normal pregnancy as

a sickness or accident disability.

IIL Tm Error or Treatinc Precnancy As A Sickness on

Accwzxt Disasiuity

Since disability payments for pregnancies would be made

only to women, treating normal pregnancy as a sickness or

accident’ disability would mean that women employees

would receive even greater benefits than the dispropor-

tionate benefits they already receive.

In late 1973, eight companies in the System performed

a manual count of the number of maternity leaves that

had been granted in 1972. These companies then compared

this count with the total number of female employees as of

December 31, 1972. The results are as follows:

Number of Maternity Number of Female

Leaves Granted in Employees as of

Company 1972 December 31, 1972 Percent

New York 2,406 48,115 5.00

New Jersey 761 16,113 4.73

Chesapeake and

Potomac 1,274 23,861 5.34

Ohio 732 13,321 5.50

Illinois 1,036 20,968 4.94

Northwestern 834 14,596 5.72

Southwestern 1,700 39, 316 4.33

Pacific Northwest 533 9,969 5.35

Totals 9,276 186,259 4.98

ac : =

By projecting the results of this eight company survey;

a fairly accurate estimate can be made of the System-wide

effect of treating pregnancy as a sickness or acident dis.

ability.

The Bell System Companies employed approximately

434,400 women eligible for disability benefits in fiscal year

1970-71 (as of December 31, 1970). Assuming 5% of these

women took maternity leave in that fiscal year, the Sys

tem would have had to provide disability payments for

approximately 21,700 pregnancies if maternity had been

treated as a sickness and accident disability during this

period. No figures have yet been compiled that accurately

reflect the average length of maternity leave taken through

out the System; nevertheless, figures compiled by Illinois

Bell indicate that within that Company the average ma

ternity leave per pregnancy has been approximately 5%

months. Of course, it is reasonable to assume that most

women would not be disabled for 54% months as a result

of pregnancy and childbirth. Indeed, the testimony

of medical experts for both sides in a court action pending

against General Electric (see note 1 supra) that is similar

to the suits the Bell Companies are facing indicates that

the total period of disability may be less six weeks,

However, two courts have held in a related/context that

eight weeks may be an appropriate estimate of the time

necessarily lost from work due to pregnancy. Using such

an eight week period for calculations, and keeping in mind

that the actual period could be found to be considerably

The companies involved in this court have almost 40% d

the System’s female employees and represent a cross section of

the entire Bell System. Thus, there is no reason to believe that

the composite figures presented by this survey would not be valid

estimates of figures for the entire System. es

Health v. Westerfield Board of Education, 345 F. Supp. Sf

(S. D. Ohio, 1972) ; Doe v. Osteopathie Hospital, 3 FEP 1128

Kans., 1971).

7a

longer, or shorter,“ if the estimated 21, 700 women who

took maternity leave in fiscal year 1971 had received dis-

ability benefits for eight weeks each, an additional 1,215,200

disability days would have been covered in that year. Thus,

instead of receiving benefits for almost 65% of the days

for which disability payments were made, women, who

approximately 49% of the System work force

for benefits during this period, would have re-

ceived benefits for over 72% of the days for which dis-

ability payments were made.

Similarly, if 5% of the System’s fiscal year 1971-72

female work force eligible for disability benefits, approxi-

mately 461,500 women as of December 31, 1971, had re-

ceived disability benefits for maternity absence in that

period, a total of approximately 23,000 pregnancies would

have been covered. Assuming disability payments had

been made for an average of eight weeks for each of these

pregnancies, an additional 1,288,000 disability days would

have been paid in 1971-72. Therefore, women, who repre-

sented approximately 48% of the System work force dur-

ing that period, would have collected 71% of the total

disability days.

*A recent example of the conceivable magnitude of payment

periods oceurred in Illinois. The State Fair Employment Practices

Commission awarded two claimants disability payments for the full

six months of their maternity leaves. Elliott v. Turner Co.,

(Charge No. 720-1155, December 12, 1973); Bennett v. Turner Co.,

(Charge No. 72C-1156, December 12, 1973). If the estimated 21,700

days of disability benefits would have been paid in the

In other words, pregnant women would have received

due to their pregnancies for more disability days than all

women received for their non-pregnancy related disability

absences; furthermore, pregnant women would have been paid for

nearly twice as many disability days due to their pregnancies than

were paid to men for all their disabilities!

8a

If pregnancy had been covered during these period

as an eight week disability, 5% of the women, or approx.

mately 2.5% of the System’s work force, would have a

counted for approximately 21% of the total days for whid

disability payments were made in both fiscal years 1970-7)

and 1971-72. No other single disability group—even in

cluding both sexes—could generate so large a number of

disability days for which benefits would be paid.

These figures demonstrate that treating pregnancy u

a sickness or accident disability would create a situation

far different from the picture of ‘‘equality’’ painted by

opponents of the present disability programs. Indeed, the

statistics reveal that women employees already are re

ceiving a significantly greater number of paid benefit days

for disabilities than are male employees. Treating preg.

nancy as a sickness or accident disability would further

reduce the percentage of disability days paid to male en

ployees.

Moreover, there can be no doubt that the cost of treat

ing normal pregnancy as a sickness or accident disability

would be immense. Using the previously mentioned fg

ures which were compiled in late 1973 as the basis for pre

jection, representative costs can readily be estimated. All

employees are entitled to disability wage payments m

the basis of seniority. An Illinois Bell study indicates that

the average seniority of women taking maternity leave

is between two and five years. Employees with 2-5 Jen

service may receive up to full wage pay for their im

week of absence as a departmental expense paid by tk

Company. Disability plan wage payments begin on th

eighth calendar day of absence. During the first four wees

of a disability period, an employee with 2-5 years of ger.

ice receives full wage pay. Subsequently, for a forty-eight

week period disability payments equalling one-half te

2

The average weekly wage of women with 2-5 years se-

siority, who were employed by the System Telephone

Operating in fiscal year 1970-71 as of Decem-

ber 31, 1970, was $111.75. If eight weeks of disability bene-

fits had been made to pregnant employees, using the av-

erage length of Company service of those taking maternity

leave during this period and the average wage of these

rn employees during 1970-71, the cost impact of wage

continuation payments that would result from treating

as a sickness or accident disability can be es-

timated. Given the figures discussed above, the wage costs

of treating each pregnancy as an eight week disability

would have been $726.39 per pregnancy." The System-

wiide costs for all 21,700 pregnancies in fiscal year 1970-71

would have been $15,762,663 in basic wages ; in other words,

2.5% of the System’s work force would

have received 14.47% of the basic wage benefit dollar. This

does not include other wage related costs such as Social

Security, pensions, health insurance, etc.“

The figures for fiscal year 1971-72 are comparable. The

awerage weekly wage of female employees with 2-5 years

seniority, who were employed during this period as of

Decembr 31, 1971 was $127.34. Assuming the same seni-

ority and average disability figures applied to fiscal year

1970-71 above, the wage costs of treating each 1971-72

pregnancy as a sickness and accident disability would have

been $827.71. The costs for all 23,000 pregnancies within

This assumes that a pregnant employee received full wages for

her first week of absence (which may be paid by the Company as a

expense), followed by full pay for the next four

— . the. tng of cach meee

*

eee: 10a

* ee

7

, the System during this period would have been $19,031,

330° in basic wages, not including other wage relate

costs. Again, had normal pregnancy been treated as 4

sickness and accident disability, a significant portion of

the basic wage benefit dollar (13.90%) would have ben

concentrated in a small percentage of the work force (ap

proximately: 2.5%).

IV. Mareewrry Leave Rur Rats

No System-wide figures indicating the precise work re

turn rate from maternity leave and other disabilities have

yet been prepared; nevertheless, Illinois Bell Telephone

Company recently completed such a study. The results

clearly established another factor indicating the que

tionable equity and financial wisdom of treating pregnancy

as though it were a sickness or accident disability. Th

Illinois study reveals that in calendar year 1972 all but

approximately 3% of those employees who were absent

as a result of presently covered sickness and accident dis

abilities returned to work. By comparison, however, dur-

ing the same period more than 48% of employees who took

maternity leave did not return to the Illinois Bell work

force following their leave. Projecting the results of this

covered by the sickness and accident disability program.

2

lla

stady to the entire System, the inequity of covering preg-

ancy as a sickness or accident disability is manifest. If

the treatment of pregnancy as a sickness or accident dis-

ability would have accounted for between approximately

15.7 million dollars of basic wage benefit payments in

fiscal year 1971 and 19.0 million dollars in fiscal year 1972

(assuming an eight week disability period for both fiscal

years) approximately 7.6 and 9.1 million dollars of the

yearly wage benefits paid in these respective fiscal years

— be clnimsennte who never returned to work!

These wage payments would not have served as a bridge

to carry workers between periods of employment, which

is the basic purpose of disability benefits, but instead

would have constituted a unique form of severance pay.

V. Comciusion

The statistical evidence discussed above highlights the

effects of treating pregnancy as a sickness and accident

disability. An examination of this evidence raises serious

doubts about the equity of so treating pregnancies. Al-

ready women receive wage benefits for days of absence

as a result of sickness and accident disabilities that are

greatly disproportionate to the wage continuation benefits

which men receive. Treating pregnancy as a sickness and

accident disability no matter how brief the average period

of such disability, can only further distort this important

benefit in favor of female employees. The cost impact of

accomplishing this questionable result will be immense.

Furthermore, the wage benefit payments received under

this coverage, although amounting to millions of dollars,

will inure to the benefit of only 5% of the Bell Companies’

female employees—less than 2.5% of the work force. Fi-

nally, a look at the work return rates of employees taking

maternity leave indicates that nearly half of the benefits

paid for pregnancy would be paid to women who will never

return to the System’s work force.

=

12a

Table 1

Sickness and Accident Summary Bell System

Infective and parasitic diseases

Neoplasms

Endocrine, nutritional and metabolic diseases

Diseases of blood and blood-forming organs

Mental disorders

Diseases of nervous system and sense organs

Diseases of circulatory system

Diseases of respiratory system

Diseases of digestive system

Diseases of genitourinary system :

Complications of pregnancy, childbirth and

puerperium

Diseases of skin and subcutaneous tissue

Diseases of musculoskeletal system and eon

nective tissue

Congential anomalies

Perinatal morbidity and mortality

Symptoms and ill-defined conditions

Accidents, poisonings and violence

Table 2

Total Bell System Sickness and Accident Figures for

Fiscal Year 1970-71

Frequency

Rate Per Severity Rate Total

No. of 1,000 (average dura- Days

Sex Cases Employees tion of illness) Lost

M 2,726 5.9 26.3 71.6

F 5,422 12.5 27.1 146,92

M 1,204 2.6 66.6 80,173

F 4,991 11.5 55.6 277,6

M 745 1.6 38.9 28,951

F 1,134 2.6 518 58,78

138 7

Frequency

Rate Per Severity Rate Total

Disability No. of 1,000 (average dura- Days

Category Sex Cases Employees tion of illness) Lost

04 M 93 0.2 40.6 3,774

F 535 12 36.7 19,634

05 M 1,527 3.3 57.2 87,285

F 3,306 7.6 67.6 223,503

06 M 1,560 3.4 44.2 69,064

F 2,592 6.0 42.1 109,132

07 M 4,637 10.1 69.4 321,773

F 3,582 8.2 62.2 222,723

08 M 8,693 18.9 19.5 169,537

F 18,397 42.3 19.2 353,955

09 M 5,488 11.9 38.1 208,816

F 5,744 13.2 415 238,532

0 M 5.0 29.3

F 11,137 25.6 33.6 374,707

1¹ M — — — —

F 3,104 7.1 27.8 86, 438

12 M 154 2.5 25.6 29, 574

F 1,617 3.7 28.6 46,319

13 M 3,941 8.6 46.4 182,686

F 5,142 11.8 53.0 272,352

14 M 149 0.3 51.6 7,668

F 304 0.7 42.2 12,822

15 M — — 2 3

F 328 0.8 58.2 19,084

16 M 1,391 3.0 29.8 41,418

F 2,909 6.7 34.6 100,758

17 M 5,694 12.4 37.4 212,981

F 7,696 17.7 429 330,467

Days Lost

Male

Female 788

léa

Table 3

Total Bell System Sickness and Accident Figures for

: Fiscal Year 1971-72

4

—

R |) a) a a) AFK | AIR AIR AR AR AR AN

E

Frequency

Rate Per Severity Rate Total

No. of 1,000 (average dura- Days

Cases Employees tion of illness) Lost

2,594 5.2 30.4 78,904

5,108 11.1 29.3 149,470

1,305 2.6 70.0 91,352

5,390 11.7 57.6 310,518

719 15 45.7

1,172 2.5 50.1 ——

121 0.2 43.5 5,252

462 1.0 43.9 20,281

1,568 3.2 62.4 97,893

3,445 75 66.6 229,558

1,557 3.2 47.3 7

2,584 5.6 44.7 15

5,007 10.1 73.0 365,723

3,950 8.6 61.7 243,865

10,093 20.4 18.9 191,101

21,789 47.2 18.7 408,365

5,699 11.5 39.4 224,655

5,994 13.0 42.3 253,522

2,441 4.9 29.2 71,29

11,262 24.4 34.7 391,2%

278 59 290 794%

1,325 2.7 28.0 37,150

1,627 3.5 30.1 48,936

4,129 8.4 49.4 203,846

5,419 11.7 55.8

15a

Frequency

Rate Per Severity Rate Total

No. of 1,000 (average dura- Days

7,941

18,119

Sex Cases Employees tion of illness) Lost

M 172 0.3 46.2

* 0.7 53.5

M — — -

F 59.5

M 30.3

F 38.0

M 40.0

F 43.6

Days Lost