# Amicus Curiae Brief — Geduldig v. Aiello > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0308%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 417 U.S. 484 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0308%3A06. Public record. Not legal advice.