Amicus Curiae Brief — Geduldig v. Aiello

Supreme Court brief1974

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INDEX

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t of General Electric Company —...................... 2

y of Argument

oh 15

"= |. Because Pregnancy is Not a Disease, Sickness or

- [iiness, and Because it is Voluntarily Induced,

the Pregnancy Provision in the California Stat-

ute is a Rational Provision 15

A. Pregnancy is Not a Sickness 16

B. Pregnancy is a Voluntarily Induced Con- :

dition 20

Ti. Insurance Industry Practice, which has Consist-

ently Excluded Pregnancy from the Concept of

Disability Because of Cost and Other Considera-

tions, Demonstrates the Rational Purpose of the

Pregnancy Exclusion in Section 2626 of the Cali-

fornia Insurance Code

A. The Cost of Providing Pregnancy Coverage

is a Relevant and Material Consideration ......

Til. The Congressional Legislative History of the

Equal Rights Amendment to the Constitution

Shows that the Pregnancy Exclusion in the

California Statute Reflects a Reasonable Classi-

fication Based on Characteristics Unique to the

Female Sex 31

IV. The Current EEOC Sex Discrimination Guideline

ca Relating to Pregnancy and Childbirth Disabili-

ties is Not Entitled to Judicial Deference Because

It is in Direct Conflict with the EEOC’s Prior

Interpretation, as well as with Positions Ex-

pressed by Other Federal Agencies and the

& &

CITATIONS

Cases: - Page

Aiello v. Hansen, 359 F. Supp. 792 (N.D. Calif.

1973) B

Brennan Vv. General Telephone Co., —— F.2d ——,

21 WH Cases (BNA) 415 (5th Cir. Nov. 16,

1973) 50

Clark v. California Employment Stabilization

Comm., 166 Cal. App. 2d 326, 382 P.2d 716

(1958) 30

-_ Cleveland Board of Education v. LaFleur, ——

US. ——, 42 LW. 4186 (1974) 5, 8,2

Cohen Vv. Chesterfield County School Board, 474

F.2d 395 (4th Cir. 1978), ——- U.S. ——,, 42

LW. 4186 (Jan. 21, 1974) 6

Communications Workers Vv. Southern Beli Tel. &

Tel. Co., No. 73-C-959, N.D. Ill. 6

Dandridge v. Williams, 397 U.S. 471 (1970)... 10,

EEOC v. E. I. duPont deNemours & Co., Civil

Action No. 4515, D.C. Del. 6

Espinoza V. Farah Manufacturing Co., —— US.

——, 38 L. Ed. 2d 287 (1973) 14, 50, 51

F.T.C. ¥. Jantzen, Inc., 356 F.2d 253 (9th Cir.)

(1966), rev’d on other grounds, 386 U.S. 228

(1967) 48

Frontiero vy. Richardson, 411 U.S. 677, 36 L.Ed.2d

583 (1973) 30, 32, 48

Gilbert, et al., v. General Electric Company, No.

142-72-R, E.D. Va. 2, 6, 7, 8, 12, 15, 16, 18,

19, 21, 23, 24, 25, 40, 44, 45, 46, 50

Griggs Vv. Duke Power Company, 401 U.S. 424

(1971) 14, 32,49

Griswold v. Connecticut, 381 U.S. 479 _.......---- 6

Grogg V. General Motors Corporation, No. 73 Civ.

63, S.D. N.Y. 6

Gutierrez v. Laird, 346 F. Supp. = Oe D.C.

1972) 21

Iselin V. United States, 270 U.S. 245 (1926) oe

Jeff erson V. Hackney, 406 U.S. 535 (1972) 10, 28, 29

National Labor Relations Board v. Boeing Co., 412

U.S. 67 (1973) 14,49

INDEX—Continued

Page

Newmon V. Delta Air Lines, Inc., No. 15,681, N.D.

Ga., decided December 31, 1973, and as yet un-

reported 6

O'Gorman & Young V. Hartford Fire Ins. Co., 282

U.S. 251 (1930) 10, 30

Reed v. Reed, 404 U.S. 71 (1971) 31, 32

Rentzer v. California Unemployment Insurance

Appeals Board, 32 Cal. App. 3d 604 (1978) -.... 31

Roe v. Wade, 410 U.S. 179 (1973) 8, 21

Shapiro V. Thompson, 394 U.S. 618 | 29, 30

Skidmore V. Swift & Co., 323 U.S. 134 (1944) .....14, 48, 49

Struck v. Secretary of Defense, 460 F.2d 1372

(9th Cir. 1972), 409 U.S. 1071 (1973)... 21

Udall v. Tallman, 380 U.S. 1 (1965) 14, 49

Vlandis v. Kline, 412 U.S. 441 (1973) ---..-.-.--------- 10, 30

Wetzel v. Liberty Mutual Insurance Company, No.

72-169, W.D. Pa., decided Jan. 9, 1974, and as

yet unreported 6

Wisconsin Telephone Company V. Dept. of Indus-

try, Labor and Human Relations, Etc., 6 EPD

4 8937 (Wis. Cir.Ct. Nov. 19, CO 46

Constitution, statutes and regulations:

U.S. Constitution:

First Amendment 21

Fourteenth Amendment 5

Equal Rights Amendment -10, 11, 14, 32, 33, 34, 35, 36

Statutes:

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

amended by the Equal Opportunity Act of 1972,

86 Stat. 103, 42 U.S.C. 2000e et seq. cmt: & 21,

12, 18, 38, 39, 52

Equal Pay Act, 29 U.S.C. 206(d) 13, 42

10 U.S.C.A. § 505 47

10 US.C.A. § 3311 47

10 US.C.A. § 3296 , AT

10 U.S.C.A. § 3297 . 47

INDEX—Continued

14 US.C.A. § 762

14 US.C.A. § 490

22 US.C.A. § 1079(d)

26 U.S.C.A. $214

26 U.S.C.A. § 7448

28 U.S.C.A. § 375

28 U.S.C.A. § 376

28 U.S.C.A. § 604

28 U.S.C.A. § 3121

29 U.S.C.A. § 11

29 US.C.A. §14

29 U.S.C.A. § 206(d)

30 U.S.C.A. § 902

30 U.S.C.A. § 922 —

33 U.S.C.A. § 771

36 US.C.A. § 177

37 US.C.A. § 401

37 US.C.A. § 551

38 US.C.A. §315

38 U.S.C.A. § 321

38 US.C.A. § 322

38 US.C.A. §341

38 U.S.C.A. § 411

38 U.S.C.A. § 412

38 U.S.C.A. § 531

38 U.S.C.A. § 532

38 U-S.C.A. § 534

38 U.S.C.A. § 536

38 U.S.C.A. § 541

38 U.S.C.A. § 544

38 U.S.C.A. § 1700

38 U.S.C.A. § 1701

41 US.C.A. § 35(d)

43 US.C.A. §171

43 US.C.A. § 278

46 US.C.A. § 601

He RARER SBAKSSFRRSSKSASSEASBSBAEESE g

SS SSBRRBBASA

California Unemployment Insurance Code _........_ 5,

| INDEX—Continued

: ~ C.F.R. 1604.10 4,

1 C.F.R. 60-20.2(c)

- 14926

14303

3344

13367

6835

35336

BSSSRSERSEER

24XeBese

RR GRER

eert Ty

Miscellaneous:

110 Cong. Rec. 13647

110 Cong. Rec. 13663

118 Cong. Rec. S 4584-5 (daily ed. Mar. 22, 1972) ..

Hearings on S.J. Res. 61 before Subcommittee on

Constitutional Amendments of the Committee on

the Judiciary, U.S. Senate, 91st Cong., 2d Sess.

493 (1970)

Hearings on S.J. Res. 61 and S.J. Res. 231 before

the Committee on the Judiciary, U.S. Senate,

91st Cong., 2d Sess. 430, n. 7 (1970) _.........-.-.

BNA FEP Manual 451:132

BNA FEP Manual 451:355

BNA FEP Manual 451:907

CCH EEOC Decisions { 6084

CCH Employment Practices Guide § 1860... a

“Commonsense Childbirth,” Lester D. Hazell, p.

xxxiv (New York, Putnam’s Sons, 1969) 17

“Equal Protection and The Pregnancy Leave

Case,” 34 Ohio St. L.J. 628 (1973) 87

& 8 8

RSRRRES

Industrial Relations Research Association, Wash-

ington, D.C. Chapter, speech by Sonia Pressman,

April 16, 1969 | 42

New York Post, December 11, 1973, “The New

Parents”

“Our Bodies Ourselves” by The Boston Women’s

Health Book Collection (Simon and Shuster,

1971, 1973) p. 227

DWIGHT GEDULDIG,

: Appellant,

CAROLYN AIELLO,

Individually and on Behalf of

All Others Similarly Situated,

Appellees,

DWIGHT GEDULDIG,

- Appellant,

AUGUSTINA D. ARMENDARIZ, ET AL.,

Individually and on Behalf of All

Other Women Similarly Situated,

Appellees,

Censolidated Cases on Appeal from the United States

District Court for the Northern District of California

BRIEF FOR GENERAL ELECTRIC COMPANY,

AS AMICUS CURIAE

This brief amicus curiae is filed by General Ele.

tric Company with the consent of all parties; a

provided for in Rule 42 of the Rules of this Court.

INTEREST OF GENERAL ELECTRIC COMPANY

General Electric Company (hereinafter “GE”) is

engaged in the manufacture of industrial electrical

equipment, products for national defense, consumer

electrical appliances, electronic equipment, medical

equipment, jet engines, and in addition, an almost

endless array of electrical items and machinery. GE

has over 250 manufacturing plants located in some

33 states and territories of the United States. It is

one of the largest employers in the United States,

employing more than 310,000 persons.

GE employees, of whom approximately 85,000 are

females, are covered by non-occupational sickness and

accident insurance which provides them with weekly

income maintenance benefits for total disability r

sulting from non-occupational sickness or accidents

Benefit payments under such insurance are not pay-

able, however, for any absence from work due to

pregnancy or childbirth or to complications in cm

nection therewith.

GE is the defendant in a civil suit presently pend

ing in the United States District Court for the East

ern District of Virginia, Richmond Division (Gilbert,

et al., Plaintiffs, v. General Electric Company, De

fendant, No. 142-72-R), in which issues have bea

raised analogous to those in the case before the Court

2 Letters consenting to the filing of this brief have been filed

with the Clerk of the Court.

The amended complaint in the suit, which the Dis-

fist Court hen allowed to proceed as a class action

on behalf of GE female employees, alleges in sub-

Ganee that GE, in violation of Title VII of the Civil

Rights Act of 1964, as amended (42 U.S.C. § 2000e,

et seq.), has discriminated, and is discriminating,

against its female employees because of their sex by

employees for absences from work resulting from

ages. Trial of the suit was held in July 1973. It

is anticipated that the District Court will issue a de-

cision shortly.

Title VII of the Civil Rights Act of 1964, as amend-

ed in 1972, prohibits most private and public em-

ployers from discriminating against any individual

in his employment, or from otherwise treating an

employee adversely or unfairly, “because of [the]

individual’s . . . sex” (42 U.S.C. cl ex-

cept “in those certain instances where . . is

a bona fide occupational qualification reasonably nec-

essary to the normal operation of that

business or enterprise” (42 U.S.C. 2000e-2(e) (1) ).

To implement this statutory prohibition, the Equal

Employment Opportunity Commission has published

guidelines—upon which we comment below—stating

in part that “Disabilities caused or contributed to by

pregnancy, miscarriage, abortion, childbirth, and re-

covery therefrom are, for all job-related purposes,

temporary disabilities and should be treated as sud

under any health or temporary disability insurane

or sick leave plan available in connection with em.

ployment.” 29 C.F.R. 1604.10.* Thus, although th

construction and application of Title VII are not be

fore the Court, the reach of this case must be weighed

in the light of the fact that the agency charged with

administering Title VII has asserted that a preg.

nancy exclusion like that here under attack would,

if in a private or public employe disability pla,

violate the statutory prohibition against sex discrin-

ination. In this connection, it is most significant that

? The relevant guidelines, in full, are as follows:

“(a) A written or unwritten employment policy or prac

tice which excludes from employment applicants or employes

because of pregnancy is in prima facie violation of Title VIL

“(b) Disabilities caused or contributed to by pregnancy,

miscarriage, abortion, childbirth, and recovery therefrom are,

for all job-related purposes, temporary disabilities and shoud

be treated as such under any health or temporary disability

insurance or sick leave plan available in connection with en

ployment. Written and unwritten employment policies and

practices involving matters such as the commencement ani

duration of leave, the availability of extensions, the accrual

of seniority and other benefits and privileges, reinstatement,

and payment under any health or temporary disability insu-

ance or sick leave plan, formal or informal, shall be applied

to disability due to pregnancy or childbirth on the same terms

and conditions as they are applied to other temporary ds

abilities.

“(c) Where the termination of an employee who is tempo

rarily disabled is caused by an employment policy under whid

insufficient or no leave is available, such a termination vie

ae Sas Ne eee eee

sex and is not justified by business necessity.”

the Equal Employment Opportunity Commission in

fact filed a brief in the court below in support of the

instant Appellees. The brief made specific reference

to the above-quoted EEOC guidelines on sex, and

recited at the outset that the Commission was filing

the brief “because it believes the standards the Court

should apply in determining the constitutionality of

§ 2626 of the California Unemployment Insurance

Code are similar to the standards which would be

applied to the same policy if it were challenged under

Title VII of the 1964 Civil Rights Act. ... The Com-

mission believes that, under both Title VII and the

Fourteenth Amendment, a policy denying disability

benefits to women workers disabled by pregnancy is

illegal sex discrimination.” The Commission, more-

over, appeared and pressed this point in oral argu-

ment before the court below.* In sum, although

Fourteenth Amendment and Title VII issues do not

turn on the same considerations—for example, un-

derlying Congressional intent could be decisive in as-

certaining the meaning of Title VII—the likelihood

exists that this case may well affect the disposition

of related Title VII cases. See the statement to the

same effect by Circuit Judge Winter, dissenting in

*See also Memorandum For The United States As Amicus

Cariae filed by the Solicitor General in Nos. 72-77 Tand 72-

1129, Cleveland Board of Education v. La Fleur and Cohen v.

Chesterfield County School Board, —— U.S. ——, 42 LW

4186 (Jan. 21, 1974). There, in cases which also presented

tor General stressed the materiality of the relevant EEOC

guidelines, and stated, “. . . the Court’s resolution of the issue

under the Equal Protection or Due Process Clause, while not

dispositive may well bear on the validity of the guidelines.”

p. 2.

Cohen v. Chesterfield County School Board, 474 F.24

395, 399-400 (4th Cir. 1973), decided by this Court

on Jan. 21, 1974, —— U.S. ——, 42 LW 4186"

SUMMARY OF ARGUMENT *

purpose of sickness and injury insurance is to

softén the blow of an unexpected sickness or injury.

A rational relationship between the pregnancy ex-

clusion in the California statute and the statute's

purpose is shown by the fact that pregnancy is not

a sickness; rather it is a voluntarily induced condi-

tion.

A. Medical experts who testified in Gilbert v. Gen-

eral Electric Company (No. 142-72-R, United States

District Court for the Eastern District of Virginia,

Richmond Division) agreed that pregnancy is not a

sickness. Sickness, medically speaking, is an “ab

‘In to the Gilbert case, supra, the following Title

VII s i disparate treatment of pregnancy in the

context of insurance or sick leave plans, are now pending in

United States district courts: Grogg v. General Motors Cor-

poration, No. 73 Civ. 63, S.D. N.Y.; Communications Workers

v. Southern Bell Tel. & Tel. Co., No. 73-C-959, N.D. Ill;

E.E.0.C. v. E. I. duPont deNemours & Co., Civil Action No

4515, D. Del.

Two district courts have recently passed upon the issue:

Newmon V. Delta Air Lines, Inc., No. 15,681, N.D. Ga., decided

Dec. 31, 1973, and as yet unreported; and Wetzel v. Liberty

Mutual Insurance Company, No. 72-169, W.D. Pa., decided

Jan. 9, 1974, and also as yet unreported. In Newmon, the

court concluded that a Title VII violation had not been shown;

the Wetzel court reached the opposite conclusion.

normal” or “morbid” condition or process which, if

not corrected, leads to further debility and ultimately

to death. In contrast, pregnancy, is a “normal,

physiological function” or “a normal variant altera-

tion of physiology.”

It is accepted medical practice in the United States

that pregnant women can continue to be employed at

their usual jobs until the onset of labor. Labor, in

itself, moreover, does not require medical assistance;

physicians are present during izbor only to prevent

complications. In Europe, where delivery complica-

tions and mortality rates are better than in the

United States, home deliveries by trained midwives

are common. The trend in the United States has

been toward hospital-type delivery and care, but the

reason for this is in part to assist in helping with

child nursing and to provide for the infant’s psycho-

logical support. ”

Approximately 10-15 per cent of women have com-

plications associated with pregnancy; but only 1-2

per cent have “major” complications, and of this num-

ber only a “very small” percentage require hospitali-

zation.

B. The testimony of the medical experts in the

Gilbert case also established that pregnancy can be

avoided through the use of contraceptive devices

which are essentially “foolproof.” The pill, com-

monly regarded in the obstetric community as safer

than childbirth, is “virtually a hundred per cent”

effective. There are also other medically acceptable

methods of contraception: the IUD is one and is

presently only a little less effective than the pill;

new models of the IUD are even more effective.

The voluntary nature of pregnancy is further

shown by the existence of two back-up methods for

avoiding pregnancy: abortion—now subject to prin.

ciples established in Roe v. Wade, 410 U.S. 119

(1973)—and the “morning after” pill. Abortions

are safe and effective; the “morning after’ pill has _

been accepted by the Food and Drug Administration

and is quite effective if used properly. |

In sum, pregnancy, unlike sickness, injury, or ac

cident, results from a cumulative exercise of free will,

which is reflected in decisions to have sexual inter.

course, not to use contraceptives, and not to terminate

the pregnancy if it occurs. This Court itself recog.

nized, moreover, that pregnancy is the result of de

liberate choice. Cleveland Board of Education y.

LaFleur, U.S. ——, 42 LW 4186, 4189 (1974).

Insurance industry practice demonstrates the ra-

tional purpose of the pregnancy exclusion under re-

view by the Court and shows that the exclusion is

rationally related to the legislative objective. Expert

actuarial testimony in the Gilbert case, supra, with

respect to employer-provided sickness and accident

disability insurance in the United States and the

treatment of pregnancy thereunder shows that the

cost of providing pregnancy coverage is relatively

high, and that the insurance underwriting industry

has consistently excluded pregnancy from the con

cept of disability. The insurance industry experi-

ence is supported by relevant General Electric Com-

pany statistics also adduced in evidence in the Gilbert

case and reproduced herein.

Uw oe

About 40 per cent of the work force in the United

States under age 65, or some 32,168,000 employees,

is covered by sickness and accident insurance. But

only about 42.6 per cent of the plans, covering about

13,500,000 employees, provide a pregnancy benefit.

Where provided, moreover, the pregnancy benefit is

almost always limited to six weeks of benefit cover-

age, contrasting with the fact that 95 per cent of the

existing plans provide 13 or 26 weeks benefit cover-

age for ordinary disabilities. The annual cost of add-

ing maternity benefits to the sickness and accident

disability income plans currently in effect in the

United States would be $1,353,000,000. ;

There are features unique to pregnancy claims

which, from an actuarial standpoint, increase the rela-

tive cost of pregnancy insurance coverage: income

loss from pregnancy occurs at a predictable future

time, thus inviting claim abuse; pregnancy, unlike

‘most sicknesses and accidents, is within the insured’s

control; the median duration of a pregnancy claim is

15 weeks, whereas the median duration of ordinary

disability claims is two weeks; a mother’s concern

for her child acts to cause a postponement of her

return to work; and the usual control mechanisms

employed by the insurance industry to counteract

claim abuse and malingering are frequently ineffec-

tive where pregnancy coverage is involved. Further-

more, although generally 100 per cent of those em-

ployees who recover from short term disabilities ac-

tually come back to work, the return rate for females

who have babies is only 50 per cent—a fact making

the payment of a pregnancy benefit highly incon-

sistent with the purpose of disability insurance pro-

tection which is to protect employee earnings.

There also exists a normal cost and benefit imbal-

ance under sickness and accident disability insurance

coverage which markedly favors females over males;

under existing insurance plans that do not cover

maternity the cost per unit of benefit for a female

employee is approximately 170 per cent of that for

a male employee. Where maternity benefits are pro

vided, the disproportion in costs between females and

males is accentuated.

This Court has ruled that fiscal considerations are

legitimate concerns in the area of economics and social

welfare when state programs are subject to equal

protection scrutiny. See Dandridge v. Williams, 39

U.S. 471, 485 (1970) ; Jefferson v. Hackney, 406 US.

535, 546 (1972). See also Vlandis v. Kline, 412

U.S. 441, 448 (1973), and O’Gorman & Young v.

Hartford Fire Ins. Co., 282 U.S. 251, 256 (1930).

The Congressional legislative history of the Equal

Rights Amendment to the Constitution (“ERA”)

supports the argument that the pregnancy exclusion

in the California statute before the Court reflects a

reasonable, non-arbitrary, classification. That his

tory shows that the ERA would not prohibit reason

able classifications based on characteristics that are

unique to one sex. This was the understanding and

view specifically adopted and approved in the perti-

nent majority Senate Report, and was also the view

of the 14 members of the House Committee on the

Judiciary who supported the version of the ERA

which was ultimately approved by both Houses of

Congress. Beet

According to proponents of the ERA who testified

in its behalf, the fundamental legal principle under-

lying the ERA is that a law must deal with the indi-

vidual attributes of'a particular person, and not with

an overclassification upon an irrelevant sex factor.

However, the ERA would not preclude legislation, or

other official action, which relates to physical char-

acteristics unique to one sex. So long as the char-

acteristics are found in all women and no men, or

all men and no women, a law predicated upon such

characteristics would not violate the basic ERA prin-

ciple, for it would raise no problem of ignoring indi-

vidual characteristics in favor of a prevailing group

characteristic or an average. Under this principle,

supporters of the ERA repeatedly cited maternity

legislation and laws governing childbearing and preg-

nancy as typical of legislative action wack would

not be affected by the ERA.

In sum, the Congressional legislative history under-

lying the ERA—which is in no way contradicted by

the legislative history underlying the sex discrim-

ination prohibition in Title VII of the Civil Rights

Act of 1964—shows that where, as with the preg-

’ nancy exclusion in the California statute, there exists

a basis for differentiation predicated on the unique

characteristics of the female sex, a classification based

on such differentiation is neither unreasonable nor

unlawful. —

The current EEOC sex discrimination guideline re-

lating to pregnancy and childbirth disabilities—which

provides in part that “Disabilities caused or contrib- |

uted to by pregnancy, miscarriage, abortion, child-

birth, and recovery therefrom are, for all job-related

purposes, temporary disabilities and should be treated

as such under any health or temporary disability in-

surance or sick leave plan available in connection

with employment”—is not entitled to judicial defer.

ence. To implement Title VII of the Civil Rights Act

of 1964, the EEOC has since November 1965 issued,

and periodically amended, a series of guidelines on

discrimination because of sex; but prior to 1972, when

the current version was issued the guidelines were

completely silent with respect to the treatment of dis-

abilities resulting from pregnancy or childbirth. In

1965-1966, moreover, the EEOC’s General Counsel

‘issued a series of opinion letters which stated: (1)

that’the EEOC did not regard pregnancy to be com-

parable to illness or injury; (2) that an employer

need not provide the same fringe benefits for preg-

nancy as he provides for illness; and (3) that a dis

ability insurance benefit plan that excluded preg-

nancy coverage was not discriminatory.

The ERO Genes Cet ede

ion letters gave testimony in the Gilbert/ case, supra.

He testified without contradiction: (1\) that the

letters reflected the official 1965-1966 EEOC policy

and position arrived at after thorough discussion and

consideration, including an inquiry into pertinent

legislative history underlying Title VII; and (2) that,

in the course of its 1965-1966 deliberations, the EEOC

discussed and considered adopting a policy reflected

in the current guideline on the treatment of preg-

nancy-caused disabilities under disability insurance

plans, but deliberately rejected this alternative. The

policy adopted by the EEOC in 1965-1966 is reflected,

moreover, in an EEOC Decision issued as late as

December 1969.

Not only is the current EEOC guideline a depar-

ture from the EEOC’s prior interpretation of Title

VIL, but it also contradicts positions taken by the

Secretary of Labor implementing a Presidential order,

Executive Order 11246, which prohibits sex discrim-

ination by government contractors and subcontrac-

tors, and by the Wage and Hour Administrator un-

der the Equal Pay Act. In addition, the current

guideline conflicts with sick leave policies applied by

other federal agencies to their female employees. The

latter policies permit agencies to grant employees

sick leave in advance of its actual accrual, but deny

the advance of sick leave foi pregnancy-related dis-

abilities. This indeed was the policy of the EEOC

until a policy change was effected in May 19783.

The EEOC, moreover, has not been consistent in

applying its 1972 guideline on pregnancy and child-

birth disabilities. Thus, in January 1973 the EEOC

became a party to a settlement agreement resolving

and discontinuing all pending litigation involving com-

pliance by American Telephone and Telegraph Com-

pany and the Bell Companies with laws and regula-

tions concerning equal employment opportunity. Even

though the EEOC had knowledge that AT&T and

the Bell Companies provide their employees with

up to 52 weeks of benefits because of work absences

~ due to sickness, but exclude from benefit eligibility

female employees on maternity leave who experience

normal pregnancies, the settlement agreement im-

posed no obligation on the companies to discontinue

the latter pregnancy exclusion.

Congress has repeatedly passed statutes authori

ing different treatment for men and women in similar

or identical circumstances—a fact which casts doubt

on the EEOC’s guideline as a valid interpretation

of Congressional intent. That intent is perhaps

best inditated by the legislative history of the Equal

Rights Amendment to the Constitution, which has

been outlined above.

Administrative interpretations, like the EEOC’s

1972 sex discrimination guideline relating to preg-

nancy and childbirth disabilities, which have not been

consistently adhered to, and which are not contem-

poraneous with the enactment of a statute are not

entitled to the judicial deference normally accorded

agency interpretations. See Skidmore v. Swift &

Co., 323 U.S. 134, 140 (1944) ; Udall v. Tallman, 380

U.S. 1, 16-23 (1965); National Labor Relations

Board v. Boeing Co., 412 U.S. 67, 75 (1978). Cf

Griggs, et al. v. Duke Power Company, 401 US. 424,

436 (1971). Espinoza v. Farah Manufacturing Co.,

—_— U.S. ——, 38 L. Ed. 2d 287 (1973), where the

Court refused to follow an EEOC guideline equating

discrimination on the basis of citizenship with the

Title VII proscription against discrimination on the

basis of national origin, is controlling, because rea-

sons there cited for rejecting the latter guideline

also obtain with respect to the EEOC’s 1972 guide

line on pregnancy and childbirth disabilities.

— |

ARGUMENT

““, Because Pregnancy Is Not A Disease, Sickness Or Ill

ness, And Because It Is Voluntarily Induced, The

Pregnancy Provision In The California Statute Is A

Rational Provision.

In Gilbert v. General Electric Company, supra, ex-

tensive testimony by medical experts was adduced

concerning the essential nature of pregnancy. Be-

cause the record in this case shows that no such tes-

timony was taken in the court below, we think it

might be helpful to the Court if we were to set out

here a summary of the medical testimony in the Gil-

bert record concerning pregnancy, together with

pertinent comments thereon. That testimony shows:

(1) that pregnancy is not a sickness; and (2) that

it is a voluntarily induced condition. As the purpose,

moreover, of sickness and injury insurance is to

Soften the blow of an unexpected sickness or injury,

the medical testimony in the Gilbert case—which we

have no reason to believe does not reflect the com-

mon, or typical, medical view—thus establishes, we

submit, a rational relationship between the pregnancy

exclusion in the California statute and the statute’s

purpose.*

eee

* Section 2601 of the California Unemployment Insurance

Code sets forth the purpose of California’s disability insurance

brogram. It states:

$2601. Purpose; construction

The purpose of this part is to compensate in part for

the wage loss sustained by individuals unemployed be-

cause of sickness or injury and to reduce to a minimum

the suffering caused by unemployment resulting there-

from. This part shall be construed liberally in aid of its

o 16

Three doctors gave medical testimony in the Gi-

bert case. Two were called as witnesses by the plain-

tiffs: Dr. David Forrest, a Richmond physician who

iali in obstetrics and gynecology; and Dr.

Andre Hellegers, professor at Georgetown Univer-

sity, who practices in the field of obstetrics. The

third, Dr. George D. Wilbanks, Chairman of the De

partment of Obstetrics and Gynecology, Rush Pres

byterian-St. Lukes Medical Center, Chicago, and a

practicing obstetrician and gynecologist, was called

as a witness by the defendant, General Electric Com-

any.

gine A. Pregnancy Is Not A Sickness.

Drs. Forrest, Hellegers, and Wilbanks all agreed

that pregnancy is a “normal physiological function”

or, as Dr. Wilbanks testified, “a normal variant for.

mational alteration of physiology” (Tr. 59, 85-86,

289, 294, 578, 588).° All the doctors likewise agreed

that pregnancy is npt a sickness,’ disease, or illness

declared purpose to mitigate the evils and burdens which

fall on the unemployed and disabled worker and his

family.

(Stats. 1958, c. 308, p. 1529, § 2601.)

‘Ty ” references are to pages in the official transcript of

proceedings in Gilbert v. General Electric Company, July 4

26, 19738.

The early symptoms of the altered physiological state

brought on by pregnancy—nausea, backache, abdominal swell-

ing, and constipation—also appear in connection with the

female menstrual period (Tr. 579-580).

' Dr. Wilbanks testified that the period after childbirth was

not a period of illness; it was rather “a period of return of

the altered state of physiology back to the more usual state...

to the pre-pregnancy state” (Tr. 588-589). *

. 59, 289, 578).* Dr. Wilbanks defined disease,

i speaking, as an “abnormal state which is

disease, quoted from the definition in Dor-

icti : “a definite morbid process having

a characteristic train of symptoms” (Tr. 13, 55-56).

Dr. Hellegers testified that the most common defini-

tion of disease is “that which, if not corrected, would

continue leading to further debility and ultimately to

death” (Tr. 243). Contrasting pregnancy and dis-

ease, Dr. Hellegers testified graphically (Tr. 288-

289) :

I seem to recall saying that I thought it would

bé strange if the human race survived on the

basis of a disease.

Dr. Hellegers further described disease as “some-

thing that is diagnosable by a physician as abnormal”

(Tr. 289). Dr. Wilbanks testified that the term

“‘disease’ would be the medical jgrm and ‘illness’ and

‘sickness’ would be more lay terms for a similar con-

dition,” and that in general the terms are “synono-

mous” (Tr. 577).

*Compare, “Pregnancy, labor and delivery are states unto

themselves, but they are by no means illnesses.” Hazell, Lester

D., “Commonsense Childbirth,” xxxiv (New York, Putnam’s

Sons, 1969). Also quoted in “Our Bodies Ourselves,” p. 157,

by The Boston Women’s Health Book Collective (Simon and

Shuster, 1971, 1973) which, at p. 227, states with respect to

the book “Commonsense Childbirth”: “Written by a woman.

Best over-all book for many reasons: good to read, complete,

and sensible approach to childbirth. The author has had

children of her own, and conveys what it feels like to give

birth. She. has an understanding of the source of many

women’s problems during childbirth. . . .”

The physicians agreed that a pregnant woman can

continue to be employed on her usual job until the

onset of labor (Tr. 20-21, 65, 246, 583). Dr. Helle

gers stated that this is “accepted medical practice in

this country” (Tr. 246). The trend in the United

States during the past 20 to 25 years has been to

ward hospital-type delivery and care (Tr. 29),° al

though in England (Tr. 64-65, 582) and in Europe

(Tr. 64, 325) home deliveries by trained midwives

are common. Moreover, according to Dr. Hellegers,

delivery complication and mortality rates for Europe

“have always been better than in this country” (Tr.

$25). Dr. Hellegers also stated that “overwhelming-

ly” the physician is present during delivery as “a

prevention of complications,” rather than as a “pri-

mary requirement” (Tr. 329). Labor, he testified,

“in itself does not require medical assistance . ..

there is really nothing that the doctor does in labor

except hold hands and rub backs and encourage, you

know” (Tr. 328-329). Dr. Wilbanks testified that

“most women probably do benefit from having a

child” (Tr. 588).

As for the complications of cenenanee~shdels a are

now covered under the California statute—the medi-

cal testimony in the Gilbert case shows that not all

*Dr. Wilbanks, explaining why, in the United States,

babies are delivered in hospitals, testified (Tr. 582): “I

think physicians, as well as the ancillary personnel, do give

support to the mother, do assist in helping with nursing.

Therefore, it is not simply delivery—it is care of the mother

and the infant’s psychological support. I think there is some

thing to a group of women being together after they have

delivered. They can talk over their problems about the baby,

the nursing and this sort of thing.”

pregnancies are normal, and that approximately 10%

to 15% of women have complications associated with

pregnancy (Tr. 56-57, 295). But not all such com-

require a woman to stop work (Tr. 24):

only 1% to 2% of the women with complications

have those that could be classified as “major” (Tr.

57), and of this very small percentage only some re-

quire hospitalization (Tr. 58).

It is submitted that the figures derived from the

medical testimony in the Gilbert case concerning ab-

normality, and highlighting the relatively small num-

ber of the major complications of pregnancy, are

unimpressive statistically, logically, and realistically;

and that, accordingly, to liken pregnancy to disease

and sickness on the basis of the complications would

be highly incongruous.

“Ten per cent of all pregnancies terminate in miscar-

riages, or “spontaneous abortions” (Tr. 247). They occur

“overwhelmingly” before the tenth week of pregnancy, and

90% occur prior to the third week (Tr. 296). Miscarriages

are usually not disabling, nor is hospitalization usually re-

quired: “by and large” most are an “in and out phenomenon

within one day” (Tr. 296).

The second category of “complications” are those pre-

: existing conditions or underlying tendencies that are aggra-

vated or brought out by the weight gain which routinely ac-

pregnancy (Tr. 241-242, 300-304). At least one-

require hospitalization (Tr. 306-307). Most are

diagnosis prior to the pregnancy (Tr. 84-85).

treatment is like the treatment of the disease

ected by the pregnancy (Tr. 257-258).

eet

B. Pregnancy Is A Voluntarily Induced Condition

The testimony of the medical experts in the Gil

bert case established that pregnancy can be avoided

through the use of contraceptive devices. Dr. Wil

banks testified: “I would say that we really have

pretty much unlimited method of contraception or

virtually foolproof methods of contraception if you

use some type of contraceptive” (Tr. 596). The pill,

Dr. Forrest said, “reduce[s] the chances of preg-

nancy to practically zero” (Tr. 54); Dr. Hellegers

testified that considering the way the population uses

the pill, there would be “one pregnancy in 100 years

of exposure to intercourse” (Tr. 272); and Dr. Wil

banks stated that the pill, if taken properly, “is vir-

tually a hundred per cent” effective (Tr. 596). Dr.

Forrest, moreover, testified that the pill is commonly

regarded in the obstetric community as being safer

than childbirth (Tr. 54-55).

In addition to the pill, there are medically accept-

able alternative methods of contraception. As to one,

the IUD, Dr. Wilbanks testified that it “perhaps is

a little less effective” than the pill, noting, moreover,

that new models are-even more effective (Tr. 596).

Dr. Hellegers testified that the IUD failure rate can

be reduced to about four per 100 years of exposure

to intercourse (Tr. 273).”

1 The Planned Parenthood Association states that foam and

condoms used together are effective 99 percent of the time

A diaphragm offers 85 to 90 per cent protection and, whe

used in conjunction with a condom, provides over 99 per cent

protection. Thus, even for women who will not or cannot use

the Pill or the IUD, there are several safe methods of con

traception which provide almost complete protection from

pregnancy. Planned Parenthood Association-Chicago Ares,

“The Inside Story,” p. 9 (1973).

The voluntary nature of pregnancy is further

manifested by the existence of two back-up methods

for avoiding pregnancy: abortion and the “morning

after” pill.* In Gilbert, Dr. Wilbanks testified that

under proper conditions and safeguards abortions are

safe and effective (Tr. 595). One method, menstrual

extraction, requires just a few minutes, and is com-

monly called the “lunch hour treatment” (Tr. 597).

The “morning after” pill has been accepted by the

Food and Drug Administration, and it is quite effec-

tive if used properly (Tr. 595).

In sum, pregnancy is neither a sickness nor a con-

dition caused by an injury or accident. Thus preg-

nancy, unlike any sickness or accident, results from

the cumulative, four-fold exercise of free will neces-

sary for a woman to bear a child: (1) there must

be a voluntary decision to marry, as marriage still

reflects by far the current standard of morality;

#In Roe v. Wade, 410 U.S. 179 (1973), the Court held that

within the first trimester elective abortions are a matter solely

between the pregnant woman and her doctor, and that the

states cannot prohibit or regulate the exercise of that right.

At least two courts have rejected the argument that an

abortion alternative to pregnancy violated a woman’s First

Amendment right to free exercise of religion. In Struck v.

Secretary of Defense, 460 F.2d 1372 (9th Cir. 1972), vacated

on other grounds, 409 U.S. 1071 (1973), an Air Force Officer

faced discharge for pregnancy under an Air Force Regulation

which also permitted cancellation of the discharge proceedings

if the pregnancy was terminated. Captain Struck argued that

as a Catholic she could not have an abortion and, therefore,

she was unable to take advantage of the cancellation clause.

The Ninth Circuit rejected her First Amendment argument.

460 F.2d at 1377. See, also, Gutierrez v. Laird, 346 F. Supp.

289, 298 (D.C. D.C. 1972).

(2) the couple must elect to have sexual intercourse

—a two-person decision; (3) the couple must elect

that conception will result—i.e., must elect to reject

the various alternative methods available for avoid-

ing pregnancy; and (4) if conception takes place,

the couple must elect to accept the pregnancy and

have the baby, and not to terminate the pregnancy

by abortion. It should also be noted that even for

the unmarried, the latter three choices are viable

alternatives to the pregnant state. Finally, this Court

itself has recognized that pregnancy is the result of

deliberate choice. “By acting to penalize the preg-

nant teacher for deciding to bear a child, overly re-

strictive maternity leave regulations can constitute a

heavy burden on the exercise of . . . protected free-

doms.” Cleveland Board of Education v. La Fleur,

—— U.S. ——, 42 LW 4186, 4189 (1974) [empha-

sis supplied].”

II. Insurance Industry Practice, Which Has Consistently

Excluded Pregnancy From The Concept Of Disability

Because Of Cost And Other Considerations, Demon-

strates The Rational Purpose Of The Pregnancy Ex-

clusion In Section 2626 Of The California

Code.

In his dissenting opinion in the court below, Judge

Williams noted correctly that California’s disability

13 An article “The New Parents” in the New York Post,

December 11, 1978, Magazine p. 1, describes the “main-

stream” of today’s thinking concerning couples having babies

as follows: “Interviews with scores of expectant and reecnt

parents, as well as statistical data, make it quite plain that

virtually foolproof birth control, backed up by more social

acceptance of couples who choose not to have children, have

made the decision to have a child just that—a decision, 4

choice—more than has ever before been true.”

benefits program was conceived by the State Legis-

lature as an insurance program “to be operated un-

der insurance concepts,” and that the program’s ob-

jective “was to protect against workers’ loss of in-

come by providing the broadest coverage and maxi-

mum benefits available within the limit of funds

generated by a 1% contribution.” Aiello v. Hansen,

359 F. Supp. 792, at 803-4. Accepting the “legiti-

macy” of the latter objective, Judge Williams con-

cluded that the pregnancy exclusion which is the sub-

ject of this litigation was “rationally related” to

such legislative objective. 359 F. Supp. at 805. See

Reed v. Reed, 404 U.S. 71, 76 (1971).

In Gilbert v. General Electric Company, supra, evi-

dence was adduced concerning the insurance industry

practice in the United States with respect to em-

ployer-provided sickness and accident disability in-

surance coverage and the treatment of pregnancy

thereunder. Because we believe that such evidence

—which highlights the relatively high cost of cover-

ing pregnancy under such insurance, and which

shows that the insurance underwriting industry has

consistently excluded pregnancy from the concept of

isability—buttresses Judge Williams’ conclusion

concerning the rational relationship between legisla-

tive objective and the pregnancy exclusion in Section

2626 of the California Insurance Code, we summar-

ize that evidence below.“

Actuary Paul Jackson, a Fellow in the Society of

Actuaries, who has worked in the area of disability

%We also advert to uncontradicted evidence nditabed in

the Gilbert case showing General Electric Company statistics

supportive of the insurance industry experience.

insurance coverage since 1956, testified in the Gil-

bert case without contradiction concerning the in-

surance industry practice. According to Mr. Jackson,

approximately 40 per cent of the work force in the

United States under age 65, or some 32,168,000 em-

ployees, is covered by sickness and accident disability

insurance. The benefit periods of this insurance

vary: about 45 per cent of the plans provide 13

weeks benefit coverage; 50 per cent provide coverage

for 26 weeks; and only 5 per cent provide coverage for

-52 weeks (Tr. 348; GE Exh. 42)." Only about 42.6

per cent of these plans, covering about 13,500,000

employees, provide a pregnancy benefit, and such

coverage, Mr. Jackson testified, is “almost always

. limited to six weeks .. .” (Tr. 349). Presently,

moreover, the cost per unit of benefit under the exist-

ing insurance for a female employee is approximately

170 per cent of that for a male employee even where

no maternity benefit is provided; ** where a six-weeks

maternity benefit is provided, the female cost per

unit of benefit runs to 210 per cent of the male em-

ployee cost; and the latter percentage goes up to

300-330 per cent of the male employee cost per unit

“Tr” and “GE Exh.” references are to the transcript

of proceedings and the record in the Gilbert case. “Pre-trial

Stip.” references appearing below are to the parties’ factual

ee ee

note 6 above.

1*GE’s experience supports Mr. Jackson’s testimony as

to the greater cost of providing female benefits. In 1970, GE’s —

average cost per insured employee of total benefits paid under

its sickness and accident insurance was $82.57 for females

and $45.76 for males; in 1971, the average cost for females

was $112.91 and $62.08 for males (Pre-trial Stips. 143 and

144).

—

of benefit where full maternity coverage is provided

(Tr. 360). According to Mr. Jackson, the annual

cost of adding maternity benefits to the sickness and

accident disability income plans currently in effect

in the United States would be $1,353,000,000" (Tr.

361, GE Exh. 42).”

Actuary Jackson explained, moreover, that there

are features unique to pregnancy claims which, from

an actuarial standpoint, increase the relative cost of

pregnancy insurance coverage: First, the fact that

income loss will occur at a predictable time “well off

in the future” allows for disability “planning” and

opens the possibility of claim abuse (Tr. 354-5).

Second, pregnancy, unlike most sicknesses and acci-

dents, is not wholly beyond the control of the in-

sured (Tr. 355). Third, the duration of ordinary

disability and maternity claims is different, the me-

dian duration of the former being two weeks and

the latter 15 weeks (Tr..355).” Fourth, concern for

"This figure was predicated upon plans currently existent

in the United States. It did not allow for the possibility that

the existence of the benefit might result in an increase in the

birthrate (Tr. 362, 400).

4% Another actuarial study in evidence in the Gilbert case,

that by Alexander J. Bailie, put the additional cost per year

for a 20 weeks maternity benefit at $1,005 million; for a 25

weeks benefit at $1,313 million; and for a 30 weeks benefit

at $1,620 million (GE Exh. 13). Mr. Bailie, a Fellow in the

Society of Actuaries since 1960, is the actuary in charge of

actuarial functions pertaining to group insurance for Metro-

politan Life Insurance Company.

* Here, too, GE’s experience regarding the duration of

pregnancy absences prior to delivery suports Mr. Jackson’s

testimony: In 1971, when there were 2,476 pregnancy ab-

the child and initial child care requirements act as

incentives for the mother to put off resumption of

work (Tr. 355-56).

There is another factor which increases the rela-

tive cost of pregnancy coverage. Actuary Jackson

testified that in order to counteract the problems of

claim abuse and malingering to which disability in-

surance is fotoriously subject, various control mecha-

“Snisms‘are employed (Tr. 346, 350). Great difficul-

ties are connected, however, with the design of con-

trol mechanisms for maternity benefits. A so-called

supervisory control, whereby individuals who abuse

sickness and accident coverage are passed up for pro-

motion or receive less merit pay increases, is fre-

quently ineffective, as is the traditonal benefit limi-

tation of 60% or 65% of pay (Tr. 353, 356, 390).

The reason for this, Mr. Jackson testified, is that

in maternity cases “approximately half of the female

employees who have children do not return to work”

(Tr. 353, 356). By comparison, Mr. Jackson fur-

ther testified, generally 100 per cent of those em-

ployees who recover from short term disabilities ac-

tually come back to work (Tr. 354).” Payment of

sences, only 15 per cent were less than 5 weeks duration,

29 per cent were between 8 and 11 weeks duration, and 22

per cent were between 12 and 15 weeks duration. In 1970,

when there were 3,261 pregnancy absences, only 12 per cent

were less than 5 weeks duration, 30 per cent were between

8 and 11 weeks duration, and 21 per cent were between 12 and

15 weeks duration.

20 GE’s experience shows that approximately 40 per cent

of GE’s female employees who have babies do not return to

work. Thus in 1970, of 3,548 total pregnancies among GE

female employees, 1,956 women returned to work and 1,592

“temporary sickness” benefits in instances of preg-

nancy would therefore be completely inconsistent

with the purpose of disability insurance protection—

to protect employee earnings—in that half of the re-

cipients would actually have left the work force per-

manently at the time of payment.

In sum, the insurance industry experience shows

that the addition of a pregnancy benefit to sickness

and accident insurance coverage not only causes a

significantly large increase in overall insurance costs,

but it further accentuates the normal cost and bene-

fit imbalance under such insurance which markedly

favors females over males.”

did not return; and in 1971, there were 2,781 total pregnancies,

from which 1,634 women returned to work, and 1,147 did not

return (Pre-trial Stip. 101).

In contrast to the 40% non-return rate among GE female

employees who have babies are statistics reflecting general

employee turnover in GE plants. A study of the 1972 employee

turnover in seven GE plants selected for their large female

population (Tr. 413, 417; GE Exh. 41A) revealed that the fe-

male “quits as percentage of total employment” was only 18

percent, as compared with 11 per cent for the male employees.

A second study of four plants (GE Exh. 41B) showed a 10 per

cent quit rate for females as compared with a 6 per cent quit

rate for males.

As shown, the prattice of the insurance underwriting

industry is to exclude pregnancy from coverage under sickness

and accident disability policies. For equal protection purposes,

it is noteworthy therefore that three major industrial states,

including California, have by statute or regulation, recognized

the significance and relevance of insurance industry practices

in the context of anti-sex discrimination provisions. Thus

Section 1482 of the California Fair Employment Practices

Act states that: “Nothing contained in this part relating to

A. The Cost Of Providing Pregnancy Coverage Is

A Relevant And Material Consideration

Fiscal considerations, this Court has stated, are

legitimate concerns “in the area of economics and

social welfare.” Dandridge v. Williams, 397 U.S.

471, 485 (1970); Jefferson v. Hackney, 406 US.

535, 546 (1972). Dandridge involved an equal pro-

tection challenge to a public welfare assistance pro-

gram, the Court holding that Maryland’s maximum

grant regulation under its aid to families with de-

pendent children program, which called for a per

capita diminution of welfare benefits for each addi-

tional child that lived in the household, did not vio-

late the equal protection clause of the Fourteenth

Amendment. The Court declared specifically that as

discrimination on account of sex shall be deemed to affect the

operation of the terms or conditions of any bona fide retire

ment, pension, employee benefit, or insurance plan, provided

such terms or conditions are in accordance with customary

and reasonable or actuarially sound underwriting practices.”

BNA FEP Manual, 451:132. Section XI(A) of the Illinois Sex

Discrimination Guidelines states: “The Commission considers

that it is a violation of the Act for an employer or labor or-

ganization to offer, contract for or participate in a group life

or health insurance or other ‘fringe benefit’ plan which dis-

criminates among employees or members on the basis of sex.

However, differences in contributions, benefits or other pro-

visions in such plans which are adopted in good faith based

on sound .actuarial data may not be deemed to violate the

Act.” BNA FEP Manual, 451:355. And the guidelines for

applying the 1965 sex amendment of the New York Law

Against Discrimination state: “In administering group life

insurance, health insurance or other ‘fringe benefits,’ the em-

ployer may make distinctions between men and women work-

ers to the extent that they are required by the underwriting

policies of insurance carriers.” BNA FEP Manual, 451: 907.

Maryland was dealing with “finite resources,” policy

decisions had to be based on cost determinations for

effectuating the program. 397 U.S. at 479. In Jef-

ferson, the Court upheld procedures used by the State

of Texas in its federally assisted welfare program.

The Texas State Constitution provides .a ceiling on

the amount the State can spend on welfare assistance

grants. In order to allocate this fixed pool of welfare

money among the numerous individuals with ac-

knowledged need, the State adopted a system of per-

centage grants. Under the system, the State first

computed the monetary needs of individuals eligible

for relief under each of the federally aided cate-

gorical assistance programs. Then, since the consti-

tutional ceiling on welfare was insufficient to bring

each recipient up to this full standard of need, the

State applied a percentage reduction factor in order

to arrive at a reduced standard of need in each cate-

gory that the State can guarantee. The Court up-

held the use of the percentage reduction factor in

the face of an equal protection claim that it resulted

in discrimination against Blacks and Mexican-Amer-

icans.*

* Cf. Shapiro v. Thompson, 394 U.S. 618 (1969), which held

invalid a statutory waiting period required of new residents

for welfare assistance eligibility, the Court said (394 U.S.

at 633):

_ We recognize that a State has a valid interest in pre-

serving the fiscal integrity of its programs. It may

legitimately attempt to limit its expenditures, whether

for public assistance, public education, or any other

program. But a State may not accomplish such a pur-

pose by invidious distinctions between classes of its

See also Viandis v. Kline, 412 U.S. 441 (1973),

and O’Gorman & Young v. Hartford Fire Ins. Co,

982 U.S. 251, 256 (1930). In Vlandis, where the

Court sustained a due process attack against a Con-

necticut statute that created a permanent and irre

buttable presumption of non-residence for the purpose

of determining tuition and other fees under the State’s

university system, the Court nevertheless character-

ized as “legitimate” the State’s objective of cost equal-

ization between bona fide residents and non residents.

412 U.S. at 448. In O’Gorman & Young, the Court

upheld a New Jersey statute placing a ceiling on in-

surance agent’s commissions, considering the cost to

the public and to policy holders of such commissions

as highly relevant.

We respectfully submit that the rationale of the

California Court of Appeals in upholding Section

2626, which Judge Williams’ dissent in the court be

low echoes, merits favorable consideration by this

Court. In Clark v. California Employment Stabilize

tion Comm, 166 Cal. App. 2d 326, 332 P.2d 716

(1958), hearing denied by Calif. Supreme Court,

Feb. 11, 1959, the California Court of Appeals said

(166 Cal. App. 2d at 331-332) :

Without doubt, the rate of employee contribu-

tions is related directly to the demand upon the

citizens. . . . The saving of welfare costs cannot justify an

otherwise invidious classification.

A classification based on sex is not, however, an invidious

classification. Frontiero V. Richardson, 411 U.S. 677 (1978).

Moreover, in Shapiro the Court specifically noted (394 US.

at 633, n.10): “We are not dealing here with state insurance

programs which may legitimately tie the amount of benefits

to the individual’s contributions.”

Fund, which, in turn, is affected by the extent

of the coverage provided. . . . It is reasonable to

assume that the inclusion of illness or injury

caused by pregnancy within the coverage pro-

vided by the statute would increase substantially

the demands upon the Fund and requier a like

increase in the contribution rate. . . . It was

properly within the sphere of legislative action

to determine whether the objects of the statute

_in question would be served best by including a

disability benefit which reasonably might impose

upon the majority of employees a burden. dis-

proportionate to contemplated benefits in order

to favor the minority who were included within -

the classified group. These reasons indicate that

the\class excluded was not arbitrarily selected, ~

and)that the purpose of the exclusion was ger-

mane to the legislative object.

Accord: Rentzer v. California Unemployment In-

surance Appeals Board, 32 Cal. App. 3d 604 (1973):

“We agree with the court’s conclusion [in Clark] that

the legislative purpose in enacting the pregnancy

exclusion of section 2626 was to spare the unemploy-

ment disability program the costs of a maternity

benefit plan.”

Ii. The Congressional Legislative History Of The Equal

Rights Amendment To The Constitution Shows That

The Pregnancy Exclusion In The California Statute

Reflects A Reasonable Classification Based On Char-

acteristics Unique To The Female Sex.

In Reed v. Reed, supra, 404 U.S. at 76, the Court

noted that the Equal Protection Clause requires that

a classification be “reasonable” and “not arbi-

trary.” * The pregnancy exclusion in the California

statute here before the Court reflects a reasonable,

non-arbitrary, classification based on characteristics

unique to the female sex—a statement that is borne

out, we submit by the Congressional legislative his.

tory of the proposed Equal Rights Amendment to the

Constitution (“ERA”).* Fourteen of the members

of the House Committee on the Judiciary who sup

ported the original version of H. J. Res. 208, the

23 It is to be noted that although classifications based on race,

alienage, and national origin have been determined by the

Supreme Court to be “suspect,” sex has not been so cate

gorized. In Reed v. Reed, the Court was specifically requested

to declare sex a “suspect” classification, see 30 L. Ed. 2d at

864, but declined to do so by finding the state preference for

males as estate administrators to be without any “reasonable”

relatiénship to the state interests in question. In Frontiero

v. Richardson, 411 U.S. 677 (1973), moreover, six members of

the Court did not join in Mr. Justice Brennan’s opinion that

all classifications based upon sex are “inherently suspect”

Because sex is not an “inherently suspect” classification, the

analysis utilized in the race discrimination Title VII cases, like

Griggs V. Duke Power Co., 401 U.S. 424 (1971), which subject

inherently suspect classifications by race to strict judicial

scrutiny to determine if an overriding or compelling contrary

interest justifies their use, is totally inapplicable.

* As approved by the Congress, the ERA provides:

Section 1. Equality of rights under the law shall nt

be denied or abridged by the United States or by any

State on account of sex.

Section 2. The Congress shall have power to enforce

this article by appropriate legislation.

Section 3. This Amendment shall take effect two years

after the date of ratification.

version of the ERA ultimately approved by both

houses of Congress, stated as their Separate Views

on H. J. Res. 208: *

The legal principle underlying the Equal Rights

amendment as proposed by Mrs. Griffiths [Rep.

Martha Griffiths of Michigan] is that the law

must deal with the individual attributes of the

particular person and not with stereotypes or

over-classification based on sex. However, the

original resolution does not require that women

must be treated in all respects the same as men.

“Equality” does not mean “sameness”. As a re-

sult, the original resolution would not prohibit

reasonable classifications based on characteristics

that are unique to one sex. For example, a law

providing for payment of the medical costs of

child bearing could only apply to women. In

contrast, if a particular characteristic is found

among members of both sexes, then under the

proposed amendment it is not the sex factor but

the individual factor which should bédetermina-

tive. [Emphasis added. ]

The majority Report of the Senate Committee on the

Judiciary on the ERA specifically approved this

- quoted excerpt from H.R. Rep. No. 92-359. The Sen-

ate Committee stated that: *

The Separate Views of Congressman Edwards

and 13 other members of the House Judiciary

Committee in the House Report on the equal

rights amendment, H.R. Rep. 92-359, state con-

*H. R. Rep. No. 92-859, 92nd Cong., Ist Sess. 7 (1971).

* As introduced into the Congressional Record by Sen.

Bayh of Indiana, 118 Cong. Rec. S 4584-5 (daily ed. March 22,

1972).

cisely and accurately the understanding of the

proponents of the Amendment. [The majority

Report then quotes several paragraphs from the

Separate Views, including the one quoted above.]

These Reports were based in part on testimony

given at the subcommittee hearings by a number of

strong advocates of the ERA. Among these was Rep.

resentative Martha Griffiths of Michigan, who was

one of the leaders of the effort to obtain Congress

sional approval for the ERA. In her testimony be-

fore the House Sub-committee considering the pro

posed amendment, Rep. Griffiths indicated the limits

on “sex discrimination” as that concept would be

treated under the ERA. In explaining what the

amendment would not do, she testified: *

Like private action, governmental action dealing

with a physical characteristic unique to one sex

would not be affected by the equal rights amen¢-

ment. Where a law deals with a physical char-

acteristic unique to one sex, equality between the

sexes could not be achieved, for such a law could

not apply in practice to both sexes. Therefore,

the equal rights amendment would not affect

laws dealing with a physical characteristic

2* Hearings before Subcommittee No. 4 of the Committee

on the Judiciary, House of Representatives, 92nd Cong., Is

Sess., on H. J. Res. 35, 208, and Related Bills and H.R. 916

and Related Bills 40 (1971). (Hereinafter cited as “ERA

House Hearings”.) To the same effect see testimony of Rep.

Bella Abzug of New York, Id. at 116; and testimony of Betty

Friedan, founder of the National Organization for Women,

Hearings on S.J. Res. 61 before the Subcommittee on Constita-

itonal Amendments of the Committee on the Judiciary, US.

Senate, 91st Cong., 2d Sess. 493 (1970). (Hereinafter cited

as “ERA Senate Subcommittee Hearings.”’)

unique to one sex, such as laws governing child-

bearing, sperm donation, or criminal acts capa-

ble of being committed by members of only one

sex.

And in response to questioning on whether the ERA

would prohibit all classifications taking account of

sex, Representative Griffiths again acknowledged the

natural limitation on the scope of the Amendment: *

But you would have to have some distinction in

laws that apply to mothers, to pregnant women,

because men aren’t pregnant. You don’t have to

have the same law applying because of different

functions of the body. The bodies are not exactly

the same, so there could be a difference.

The position taken by Representative Griffiths is

clearly the most sensible approach to the general ques-

tion of what constitutes a reasonable classification

based on sex, and the same position was repeatedly

adopted by supporters of the ERA. Even witnesses

who claimed to endorse a more “absolutist” inter-

pretation of the ERA endorsed the position. Thus

Lucille H. Shriver, Federation Director, The National

Federation of Business and Professional Women’s

Clubs, Inc. in her statement before the House Sub-

committee stated: ™

The significant point always is: Is the distinc-

tion one of sex alone or, is there something added

or some special function served. On this basis,

for example, maternity legislation would not be

* ERA House Hearings 51.

* ERA House Hearings 156. To the same effect, testimony

of Jean Faust, Assistant on Women’s Rights to Rep. William

F. Ryan of New York, ERA House Hearings 103.

affected by the equal rights amendment. Mater-

nity legislation affects only females . . . . The

fact is, that maternity legislation. can be avail-

able only to women because they alone, . physio-

logically, house the prenatal child and childecar-

rying is the criterion for maternity legislation.

Quite obviously such an interpretation is, in sub

stance, identical with that of Rep. Griffiths.

The most comprehensive analysis of the limits on

the scope of the proposed ERA was presented to both

the Senate and House committees by Thomas |

Emerson, Lines Professor of Law, Yale Law School.”

Professor Emerson testified before the Senate Judi-

‘ciary Committee that: ”

The fundamental legal principle underlying the

equal rights amendment, then, is that the law

must deal with the individual attributes of the

particular person, not with a vast over-classifi-

cation based upon the irrelevant factor of sex.

It should be noted at this point that there is one

type of situation where the law may focus on 2

sexual characteristic but the basic principle just

stated has no application.

This occurs where the legal system deals directly

with a physical characteristic that is unique to

one sex. In this situation it could be said that,

2° Hearings on S.J. Res. 61 and S.J. Res. 231 before the Con-

mittee on Judiciary, U.S. Senate, 91st Cong., 2d Sess. 430,

n.7 (1970). (Hereinafter cited as “ERA Senate Judiciary

Committee Hearings.”) Professor Emerson was the successful

counsel who prepared the brief and argued the precedent

making case, Griswold v. Connecticut, 381 U.S. 479, involving

the important issue of the right to privacy. |

2 ERA Senate Judiciary Committee Hearings 298-9.

in a certain sense, the individual obtains a bene-

fit or is subject to a restriction, because he or

she belongs to one or the other sex.

Thus a law providing for payment of the medi-

cal costs of childbearing would cover only wom- -

en, and a law relating to sperm banks would

restrict only men. Such legislation cannot be

said to deny equal rights to the other sex. There

is no basis here for seeking or achieving equality.

[Emphasis added.]

And in his testimony before the House Subcommittee,

Professor Emerson said: ™

. the equal rights amendment ies not pre-

clude legislation, or other official action, which

relates to a physical characteristic unique to one

sex. . . . So long as the characteristics is [sic]

found in all women and no men, or all men and

no women, the law does not violate the basic

principle of the equal rights amendment; for it

raises no problem of ignoring individual char-

acteristics in favor of a prevailing group charac-

teristic or an average.™

* ERA House Hearings 402.

* Professor Emerson’s statements were recently echoed in

the Ohio State Law Journal: “There are many statutes

and regulations to prevent hemophiliacs and colorblind per-

sons from driving or holding certain jobs, and yet the judici-

ary does not customarily view such burdens as offending males

generally. The fact that these sex linked traits exhibit their

symptoms exclusively in males would be viewed as fortuitous

and incidental to regulations which speak narrowly to the

underlying conditions. A similar cultural habit of mind tends

to prevent judges from viewing criminal rape statutes as

offending males generally nor prosecutions of prostitution to

females generally.” Note, Equal Protection and The Preg-

nancy Leave Case, 34 Ohio State L.J. 628, 631 (1973).

In sum, the legislative history underlying the ERA

teaches that not every differentiation based on sex-

related physical characteristics is unlawful; and that

where, as with the pregnancy exclusion in the Cali-

fornia statute, there exists a basis for differentiation

predicated on the unique characteristics of the female

sex, a classification based on such differentiation is

neither unreasonable nor unlawful.”

IV. The Current EEOC Sex Discrimination Guideline Re

lating To Pregnancy And Childbirth Disabilities Is

Not Entitled To Judicial Deference Because It Is In

Direct Conflict With The EEOC’s Prior Interpretation,

As Well As With Positions Expressed By Other Fed-

eral Agencies And The Congress.

We anticipate that the Equal Employment Oppor-

tunity Commission’s current guideline relating to the

treatment for job-related, purposes of disabilities due

to pregnancy or childbirth, supra note 2, may be

Cong. Rec. 13663-4 (1964).

cited to the Court in support of the decision below.

For this reason, and even though the court below

did not expressly advert to the guideline, we com-

ment on it here in order to show that it is not en-

titled to the deference normally accorded administra-

tive interpretations.” |

Historically, Guidelines on Discrimination Because

of Sex were originally issued by the EEOC on No-

vember 24, 1965 (30 Fed. Reg. 14926); they were

amended by the EEOC on February 21, 1968 (33 Fed.

Reg. 3344) ; were again amended on August 19, 1969

(34 Fed. Reg. 13367); and were last amended and

revised effective April 5, 1972 (37 Fed. Reg. 6835).

The earlier guidelines expressed no view with respect

to the way disabilities resulting from pregnancy or

childbirth were to be treated. Indeed, the topic was

adverted to in the guidelines for the first time in 1972

when with the issuance of the amendments of April

of that year, the guidelines in their present form

were published.

The first public expression by the EEOC on the

treatment of pregnancy under Title VII appeared in

** As set forth above, the EEOC guidelines on sex discrimi-

nation were promulgated to implement the statutory prohibi-

tion against sex discrimination in Title VII of the Civil Rights

Act of 1964. Both the pertinent statutory provisions and the

relevant current guidelines are quoted, supra, at pp. 3-4. In

pertinent part the current, 1972, guideline relating to preg-

nancy disabilities provides: “Disabilities caused or contributed

to by pregnancy, miscarriage, abortion, childbirth, and re-

covery therefrom are, for all job-related purposes, temporary

disabilities and should be treated as such under any health or

temporary disability insurance or sick leave plan available

in connection with employment.” 29 C.F.R. 1604.10.

a series of opinion letters issued by the EEOC’s Gen-

eral Counsel in 1966, Therein the EEOC’s then posi-

tion as to whether pregnancy had to be treated as

an illness was thus set forth:

The Commission policy with respect to preg-

nancy does not seek to compare an employer's

treatment of illness or injury with his treatment

of maternity, since maternity is a temporary dis-

ability unique to the female sex and more or less

to be anticipated during the working life of most

women employees. . . . we do not believe that an

employer must provide the same fringe benefits

for pregnahcy as he provides for illness. . . .

Further, the EEOC’s then position on the specific

question of whether pregnancy need be covered under

a disability insurance benefit plan was also set forth:

. . . an insurance or other benefit plan may

simply exclude maternity as a covered risk, and

such an exclusion would not in our view be dis-

criminatory.”

In testimony given in Gilbert v. General Electric

Company, supra, a former EEOC General Counsel,”

who occupied that office for some 15 months in 1965

% The excerpted passages set forth in the text were identified

as representative of statements in EEOC opinion letters pre

pared and sent out by the EEOC General Counsel during

1965-1966. The letters were sent out and made public in re

sponse to inquiries made of the Commission. Testimony of

Charles Duncan, Esq., former EEOC General Counsel, in

Gilbert v. General Electric Company, No. 142-72-R, E.D. Va

See the Appendix hereto.

3t Charles Duncan, Esq., currently President of the District

of Columbia Bar. Pertinent excerpts from Mr. Duncan’s testi-

mony in the Gilbert case are set forth in the Appendix hereto,

and 1966, stated without contradiction that the quoted

statements from the 1966 letters reflected official

EEOC poliey during his incumbency as General Coun-

sel. He further testified: (1) during the first year

of the EEOC’s existence—ie., the year beginning

July. 2, 1965—questions and problems respecting sex

discrimination “occupied a-good deal of the Commis-

sion’s attention” and “were thoroughly discussed by

the Commission,” and, during the same period, the

_treatment of pregnancy disabilities under an em-

ployer’s disability insurance plan was specifically con-

sidered by the full Commission; (2) in formulating

its 1965-1966 policy, the Commission considered and

inquired into the legislative histéry underlying Title

VII with respect to sex discrimination; (3) the Com-

- mission’s 1965-1966 policy and position was that preg-

- nancy could be treated differently from “medical ill-

ness,” and that under an employer-sponsored em-

ployee disability insurance plan it was not necessary

“to provide the same benefits for maternity absence

[as] for ‘illness-caused absence;” and (4) in the

course of its 1965-1966 deliberations on sex discrim-

ination, the Commission “extensively considered” and

discussed as a possible alternative the policy reflected

in the current EEOC guidelines with respect to the

treatment of pregnancy-caused disabilities under em-

ployee disability insurance plans, considering such a

policy in the light of the legislative history underlying

Title VII, but consciously and deliberately rejecting

it (Tr. 559, 561-564, 566-567). The EEOC policy

and position thus described is reflected in a Commis-

sion Decision (No. 70-360) issued on December 16,

1969, which states in part: “The Commission policy

with respect to pregnancy does not seek to compare

an employer’s treatment of illness or injury with his

treatment of maternity, since maternity is a tempo

rary disability unique to the female sex....” The

1969 Decision is reproduced in CCH EEOC Decisions

q 6084."

Not only is the current EEOC guideline a depar-

ture from the prior interpretation of the statute by

the EEOC, but it also contradicts the position of other

federal agencies. Thus, the Sex Discrimination Guide-

lines promulgated by the Secretary of Labor pursuant

to Executive Order 11246 (3 C.F.R. 173)" do not

require that employee medical benefit plans cover

pregnancy-related disabilities as long as an employer

makes equal contributions to such plans for employees

of both sexes (41 C.F.R. § 60-20.3(c)).“ Moreover,

38 See also the following excerpt from a speech delivered to

the Industrial Relations Research Association, Washington,

D. C., Chapter by Sonia Pressman, then Senior Attorney,

Office of the General Counsel, EEOC, on April 16, 1969,

stating the EEOC’s then position to be as follows: “The

Commission . . . has not to date equated [pregnancy] with

sickness. Thus, the Commission has ruled . . . that an em

ployer may have a medical and hospital insurance plan which

covers the expenses of delivery, but excludes disabilities re

lated to pregnancy, childbirth, miscarriage, and abortion.”

CCH Employment Practices J] 8004 at p. 6005 (June 19, 1969).

%° Executive Order 11246 is a Presidential order which pro-

hibits government contractors and subcontractors from dis-

criminating in employment on the basis of race, color, religion,

sex, or national origin. “Sex” as a prohibited type of discrimi-

nation was added to the order by a 1968 amendment (32 Fed

Reg. 143038).

“On December 27, 1973, the Seorcteny of Labor juni

in the Federal Register (38 Fed. Reg. 35336) proposed re

vision’ in the Guidelines which, inter alia, proposed that

ions promulgated by the Wage and Hour Ad-

ministrator under. the Equal. Pay Act, 29 U.S.C.

206(d), provide that payments relating to maternity

are not wages for purposes of that statute (20 C.F.R.

§ 800.110), and further state (20 C.F.R. § 800.116

(d)): |

If employer contributions to a plan providing in-

surance or similar benefits to employees are

equal for both men and women, no wage differ-

. ential prohibited by the equal pay provisions will

result from such payments, even though the bene-

fits which accrue to the employees in question

are greater for one sex than for the other.

- In-addition, the EEOC’s current guideline on em-

ployment policies’ relating to pregnancy and child-

birth ‘is in direct conflict with the maternity sick

leave benefits and leave policies established by other

federal agencies for their own female employees.

These policies deny advance sick leave benefits for

pregnancy-related disabilities,” establish fixed peri-

“medically verifiable disabilities which are related to preg-

nancy be treated as temporary disabilities.” The Secretary

went on to state: “The OFCC, however, recognizes the need to

continue to be guided by pertinent judicial decisions, includ-

ing those expected to be rendered by the United States Su-

preme Court during this present term.” The views of inter-

ested parties were solicited.

“The Civil Service Commission policy provides that an

employee may be granted up to a total of 30 days sick leave

in advance of its accrual, but provides further that requests

for advance sick leave for reasons of pregnancy “should” and

“will” usually be denied; the policies of the NLRB, the De-

partment of Justice, the Library of Congress, and the Depart-

ment of Health, Education and Welfare are not to advance

sick leave for pregnancy or confinement; the policies of the

ods for the commence ment of maternity leave,* and

deny unmarried females “self-only” coverage for

pregnancy and maternity hospitalization and doctors

benefits under health benefits plans established pur-

suant to the Federal Employees Health Benefits Law

and approved by the Civil Service Commission.“

THE EEOC itself, on December 20, 1972, and Jan-

uary 26, 1973, denied requests for advance of sick

leave for reasons of pregnancy and confinement “ex-

cept in cases of serious disability regarding the ma-

ternity aspect.” On May 25, 1973, this policy was

changed so that requests for advanced sick leave for

reasons of pregnancy and confinement are treated

the same as “other cases of serious disability regard-

less of the maternity aspect.” ** Not changed, how-

ever, was the EEOC’s continuing requirement that its

Department of Agriculture, the Forest Service, and the Office

of the Secretary of Defense, Joint Chiefs of Staff, Court of

Military Appeals, Defense Security Assistance Agency pro-

vide that advanced sick leave for reasons of pregnancy or con-

finement “should” not be allowed (Exhibits and Stipulations in

Gilbert v. General Electric Company, supra).

42 The Department of Justice, the Department of Agricul-

ture, the Forest Service, and the Department of Health, Edu-

cation and Welfare require their female employees to com-

mence maternity leaves six weeks before the expected date of

delivery (Id.).

48 The American Postal Workers Union Plan; the Group |

Health Association Plan; National Association of Letter Car-

riers Plan; American Federation of Government Employees

Plan (benefits payable for severe complications of pregnancy,

but amount reduced by $250) (/d.).

+ Presumably, the May 25, 1973, change was triggered by aa

exhibit list served by defendant GE in the Gilbert case, supra. —

female employees begin maternity leave “not later

than four weeks prior to the expected delivery”

(EEOC Manual, 7-25-69). Exhibits and Stipula-

tion in Gilbert v. General Electric Company, supra).

The EEOC, moreover, has not been consistent in

its application of the 1972 guideline on employment

policies relating to pregnancy and childbirth. As re-

vealed in Federal Communications Commission rate

increase proceedings involving American Telephone

& Telegraph Company and 24 of its associated oper-

ating companies (“Bell Companies”), FCC Case No.

19143, in which the EEOC participated as a peti-

tioner in opposition to AT&T and the Bell Compa-

nies, the Bell Companies provide their employees with

up to 52 weeks of benefits because of absences from

work due to physical disabilities caused by sickness,

but exclude from benefit eligibility female employees

on maternity leave who experience normal pregnan-

cies. Yet, on January 18, 1973, after extensive nego-

tiations, the EEOC, the Department of Labor, and

AT&T on behalf of itself and the Bell Companies,

signed an Agreement providing, inter alia, for the

entry of a consent decree in a district court,** the

resolution and discontinuance of all pending litiga-

tion concerning compliance by AT&T and the Bell

Companies with all laws and regulations concerning

equal employment opportunity, and the dismissal of

the EEOC opposition to the proposed rate increases

in the FCC proceedings. Although this Agreement

“The provisions of the Agreement were in fact embodied

in a Consent Decree entered in the United States District

Court, Eastern District of Pennsylvania, on January 18, 1973.

See § 1860, CCH Employment Practices Guide.

provides that adherence to its terms constitutes full

compliance with all laws and regulations governing

equal employment opportunity, it imposes no obliga-

tion on AT&T or the Bell Companies to discontinue

their current policy and practice of not paying sick-

ness benefits to their female employees who are ab

sent from work as the result of normal pregnancies

(Exhibits and Stipulations in Gilbert v. General Elec-

tric Company, supra).

Casting even more doubt on the EEOC’s guideline

as a valid interpretation of Congressional intent, is

the fact that Congress itself has repeatedly passed

statutes authorizing different treatment for men and

women in similar or identical circumstances.” Per-

Companies, Illinois Bell Telephone Company, alleging sex dis-

crimination against female employees by the failure to provide

disability insurance benefits for pregnancy-related disabilities

was subsequently filed in the District Court for the Northern

District of Mlinois, after the issuance of a right to sue letter

and a determination of probable cause to believe Title Vil

had been violated in this respect by an EEOC District

Director (Exhibit and Stipulation in Gilbert case, supra).

See also Wisconsin Telephone Company V. Dept. of Industry,

Labor and Human Relations, Etc., 6 EPD 7 8937 (Wis. Cir.

Ct. Nov. 19, 1973), holding that Wisconsin Telephone Com-

pany, a Bell Company, can continue its practice of not paying

sickness disability benefits for pregnancy.

U.S.C.A. § 762 (husband of

member of Women’s Reserve not a dependent unless in fact

dependent on her for support); Coast Guard, 14 USCA

§ 490 (death gratuity to widows); Pay and Allowances to Mil-

tary Personnel, 87 U.S.C.A. § 401 (a person is not a dependent

of a female member unless in fact so dependent on her for

over one-half of his support); Pay and Allowances to Military

Personnel, 87 U.S.C.A. $551 (dependent defined as “his

wife”); Veterans’ Benefits, 38 U.S.C.A. § 315 (additional com-

pensation for “wife” of disabled vetcran); Veterans’ Benefits,

$8 U.S.C.A. § 321 (basic entitlement for “surviving widow” of

veteran); Veterans’ Benefits, 38 U.S.C.A. § 322 (rates of death

compensation for “widow” of veteran); Veterans’ Benefits, 38

US.C.A. § 341 (basic entitlement for “surviving widow” for

peacetime death); Veterans’ Benefits, 88 U.S.C.A. § 411 (de-

pendency and indemnity compensation to a “widow”); Vet-

terans’ Benefits, 37 U.S.C.A. § 412 (benefits to a “widow” in

certain cases of in-service or service-connected deaths); Vet-

erans’ Benefits, 38 U.S.C.A. § 531, § 582, § 534, § 536, § 541

(benefits to “the widows” of veterans of various wars);

Veterans’ Benefits, 38 U.S.C.A. § 544 (aid and allowance to

“any widow” entitled to a pension); Veterans’ Benefits, 38

~ US.C.A. § 1700 and 1701 (educational assistance program for

the “widows” of veterans); Public Lands, 43 U.S.C.A. § 171

(rights of “wife” of homesteader who “has been abandoned

and deserted by her husband”); Public Lands, 43 U.S.C.A.

§ 278 (right of “widow” of veteran to make entry); Shipping,

46 U.S.C.A. § 601 (attachment of seaman’s wages may not

interfere with wages “for the support and maintenance of his

wife”); Labor, 29 U.S.C.A. § 11-§ 14 (establishment, appoint-

ments, powers and duties of Women’s Bureau in Department

of Labor); Armed Forces, 10 U.S.C.A. § 3297, § 3311, § 3296

(the Women’s Army Corps); Armed Forces, 10 U.S.C.A.

§505 (distinctions made between men and women on mini-

mum enlistment age and length of original enlistment);

Patriotic Societies and Observance, 86 U.S.C.A. $177 (dif-

ferent required observances for men and women during hoist-

‘ing and lowering of flag); Public Contracts, 41 U.S.C.A.

§35(d) (different minimum employment ages for males and

females) ; Lighthouses, 88 U.S.C.A. § 771 (benefits for widows

of lighthouse personnel); Internal Revenue Code, 26 U.S.C.A.

§ 7448 (annuities to “widows” of tax court judges); Judiciary

and Judicial Procedure, 28 U.S.C.A. § 604 (regulation and

payments of “annuities to widows . . . of judges”); Judiciary

and Judicial Procedure, 28 U.S.C.A. § 375 and § 376 (annuities

to “widows” of justices and judges); Internal Reevnue Code,

26 U.S.C.A. §214 (determination of certain deductions de-

haps the most significant indication of Congressional

intent in this respect is the legislative history of the

recent ERA amendment. As set forth above, pp. 30-

37, that history discloses that Congress expressly in-

tended to permit pregnancy to be differentiated from

matters covered by the amendment.

It is settled law that administrative interpreta-

tions which have not been consistently adhered to,

and which are not contemporaneous with the enact-

ment of a law, are not entitled to the judicial defer-

ence normally accorded agency interpretations. See

Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

Thus in F.T.C. v. Jantzen, Inc., 356 F.2d 253 (9th

Cir. 1966), rev'd on other grounds, 386 U.S. 228

(1967), the court stated the principle as follows

(356 F.2d at 254, n.4):

_. . we owe little, if any, deference to the Com-

mission’s views as to what the statute does. A

consistent interpretation of a statute by the body

created to administer it is indeed entitled to ju

dicial respect. But it goes beyond all reason to

apply the same rule to diametrically inconsistent

positions taken by such a body. If we owe any

pendent on male or female, husband or widow status); In-

ternal Revenue Code, 28 U.S.C.A. § 3121 (differentiation be

tween men and women regarding age which remunera-

tion will not be considered “wages”); Foreign Service, 22

U.S.C.A. §1079(d) (grants to needy ineligible ““widows”);

Minerals Lands and Mining, 30 U.S.C.A. §922 and § 92

(benefits to “widow” of deceased miner).

Whether or not these statutes would survive an attack under

the Fourteenth Amendment is not material here. What is

important is the intent of Congress is passing Title VIL. Cf

Frontiero Vv. Richardson, 411 U.S. 677 (1973).

deference to the Commision’s views, it is to

those that were contemporaneous with the enact-

ment of the statute... .

In Udall v. Taliman, 380 U.S. 1, 16-23 (1965), the

Court gave deference to an interpretation of the

Secretary of the Interior only after a detailed analy-

sis showed that his interpretation had been contem-

poraneous, consistent, heavily relied upon, and was

not unreasonable. In Griggs, et al. v. Duke Power

Company, 401 U.S. 424, 436 (1971), the Court did

not accept the EEOC guidelines on employment test-

ing as the proper interpretation of Title VII until

it was convinced by a thorough review of the legis-

lative history that the construction “comports with

Congressional intent.” The elements of agency con-

sistency and contemporaneous construction were em-

phasized by the Court in National Labor Relations

Board v. Boeing Co., 412 U.S. 67, 75 (1973), in up-

holding the Board’s position that it was not required

to inquire into the reasonableness of union-imposed

fines. These cases demonstrate, we submit, that ju-

dicial acceptance of administrative interpretations

depends upon careful scrutiny; or, as the Court said

in Skidmore v. Swift & Co., supra, 323 U.S. at 140:

sistency with earlier and later pronouncements

and all those factors which give it power to per-

suade, if lacking power to control.

See also Espinoza v. Farah Manufacturing Co.,

— U.S. ——, 38 L. Ed. 2d 287 (Nov. 19, 1973),

where the Court refused to follow an EEOC guide

line equating discrimination on the basis of citizen-

ship with the Title VII proscription against discrim-

ination on the basis of national origin. The Court

cited these reasons for rejecting the EEOC’s guide

line interpretation: (1) the guideline position was con-

trary to the Congressional understanding of the term

“national origin,” as shown by, among other things,

Congressional enactments in related areas (“. . . def-

erence [to the EEOC guideline] must have limits

where, as here, application of the guideline would be

inconsistent with an obvious Congressional intent not

to reach the employment practice in question,” 38

L. Ed. at 295); (2) the guideline position was incon-

sistent with a “general understanding” of the

“In Brennan Vv. General Telephone Co., —— F.2d ——, 21

WH Cases (BNA) 415, 417 (5th Cir., Nov. 16, 1973), the

Fifth Circuit listed the various reasons for according weight

to administrative interpretations, referring to a “reenactment

of the statute in circumstances which indicate legislative ap-

proval.” Here, of course, the enactment of Title VII’s sex dis-

crimination prohibition occurred in the context of prior inter-

pretations by state legislators and administrators which show

that the contemporaneous “general understanding” was that

the pregnancy exclusion here in issue was not unlawful. Thus

GE’s Labor Relations Counsel testified in Gilbert v. General

Electric Company, supra: “When the Act was passed it

was passed in the context of the existence of a number of

statutes in states in which GE operated, as I have indicated,

which for years had prohibited sex discrimination. Many of

—

term’s meaning, as shown by federal regulations and

the statutes of various states (38 L. Ed. at 291, n.2) ;

and (3) the guideline position was contrary to an ear-

lier Commission position expressed “through its Gen-

eral Counsel” (38 L. Ed. at 294).” The Espinoza

case therefore is of controlling significance with re-

spect to the EEOC’s 1972 guideline on pregnancy

and childbirth disabilities: the guideline is contrary

- to Congress’s understanding of what is meant by sex

discrimination (see supra, pp. 30-37); (2) the 1972

guideline sets forth a position inconsistent with state

statutes and administrative interpretations by state

and federal agencies (see supra, pp. 41-45, and note

49); and (3) the 1972 guideline completely reverses

the EEOC’s earlier position, as first expressed by its

General Counsel (see supra, pp. 37-41).

In sum, in view of the principles outlined above,

the EEOC’s 1972 sex discrimination guideline relat-

ing to pregnancy and childbirth disabilities is not

entitled to judicial deference: First, having been is-

sued some seven years after Title VII went into ef-

fect, the guideline does not represent a “contempo-

raneous construction ;” and it certainly is inconsistent

those Fair Employment Commissions in those states charged

' with the enforcement of those Acts were aggressive and we

had many complaints and investigations over the period of

time prior to 1964. At no point in time did any state agency

ever question the exclusion of pregnancy from the S and A

benefits in the period beginning 1950 through 1964” (Tr. 446).

“ When the Espinoza case was before the Court of Appeals,

the Seventh Circuit likewise refused to follow the EEOC’s

guideline, saying with respect to it: “While acknowledging

deference is due, blind adherence is not.” 462 F. 2d 1381, 1334

(7th Cir. 1972).

with the previous contemporaneous, and thoroughly

considered, 1966-1971 EEOC position and policy. In-

deed, only the 1966-1971 EEOC policy and published

construction, reflecting the judgment of those en-

trusted with setting Title VII’s machinery in motion,

meet the criteria for deference as enunciated by the

Supreme Court.” Second, the guideline is also di-

rectly contrary to the positions of other federal agen-

cies which have dealt with the identical subject; is

in conflict with employment policies established for

pregnant female employees of many government

agencies, including, until May 25, 1973, the EEOC

itself; and is, in addition, inconsistent with other

expressions of Congressional intent.

;

st No weight attaches to the 1972 guideline by reason of the

fact that it was issued shortly after the effective date of

the 1972 Amendments to Title VII, because there was no

change in the sex discrimination provisions of the statute

which would justify changing the EEOC’s prior position on

employment policies relating to pregnancy and childbirth

Indeed, it can be strongly argued that the Congress in passing

the 1972 amendments without changing the “sex” provision

must have known, and approved by implication, the published

opinions of the 1966-1971 period.

CONCLUSION

For the foregoing reasons, the judgment of the

court below should be reversed.

Respectfully submitted,

THEOPHIL C. KAMMHOLZ

STANLEY R. Strauss

1750 Pennsylvania Ave., N.W

Washington, D. C. 20006

Attorneys for

General Electric Companp

Of Counsel:

VEDDER, PRICE, KAUFMAN & KAMMHOLZ

1750 Pennsylvania Ave., N.W.

Washington, D. C. 20006

JOHN S. BATTLE, JR.

J. ROBERT BRAME, ITI

1400 Ross Building

Richmond, Virginia 23219

Dated: February 1974.

—

A-1

APPENDIX

Excerpts from the Official Transcript of Proceedings in

Gilbert v. General Electric Company, No. 142-72-R, United

States District Court for the Eastern District of Virginia:

. * * *

[542] CHARLES DUNCAN was called as a wit-

ness by and on behalf of the defendant and, having

been first duly sworn, was examined and testified on

his oath as follows:

[549] DIRECT EXAMINATION

BY MR. STRAUSS:

Q Would you state your name and residence ad-

dress, sir?

A Charles T. Duncan, D-u-n-c-a-n, 1812 Upshur,

U-p-s-h-u-r Street, NW, Washington, D. C.

Q Mr. Duncan, what is your occupation or pro-

fession? —

A Iam an attorney at law admitted to practice

in the District of Columbia.

* * * s

[550] Q Are you an officer of the District of

Columbia Bar?

A Yes. We have a unified D. C. Bar and I am

this year President of that organization.

Q Now, prior to your becoming engaged in the

private practice of law in the District of Columbia

Were you employed in an official capacity by the

District of Columbia Government?

A Yes. I was Corporation Counsel for the Dis-

trict of Columbia.

———n

A-2

[551] Q You were, were you not, at one time, em-

ployed by the EEOC?

A Yes, I was.

Q And in what capacity were you 80 employed?

A I was General Counsel of the Equal Employ-

ment Opportunity Commission.

And would you pinpoint the dates?

A I believe I became General Counsel on August

8, 1965, and I took the oath of office as Corporation

Counsel on October 31, 1966.

I assume I went off the EEOC payroll on that

date, but I am not sure.

Q You just don’t remember, but in view—

A It was sometime very late in October.

Q In October, 19667

A That is correct.

[553] Q Mr. Duncan, the letter[s] which repre

sent the Defendant’s Exhibit Number 12, are you the

author of the letter[s]?

A Well, let me respond this way. These letters

were prepared in my office. As to whether I drafted

particular language, I don’t remember that, but I do

recognize the two letters as being letters which were

prepared in my office or certainly similar to letters

which were prepared in my Office.

ca a * *

[555] Q Is it a fair statement to say, sir, that

letters containing . . . similar opinions to those ex-

pressed therein were sent out by you before you left

the Commission in response to inquiries made of the

Commission?

A Yes.

_—

[559] Q Do you recall whether letters setting

forth opinions such as those [set] forth in Defend-

ant’s Exhibit 12 were discussed at any time with the

Commission?

A You mean on the specific point of pregnancy?

‘Maternity leave?

Q The matters discussed and set forth in those

ethers?

A Yes.

This was one of the issues that I would not have

decided on my own initiative, and indeed did not.

This particular question, how to treat [560] preg-

nancy and maternity leave, was particularly dis-

cussed at the Commission level and with senior staff

in order to formulate the Commission’s policy.

Q What about the matter of the treatment of

pregnancy disabilities under an employment—under

an employer’s disability plan?

A That subject was discussed at the Commission

level.

Q Do you recall who was present at these dis-

cussions?

A I cannot pinpoint a discussion or a date. I do

know that this question was considered by the full

Commission, and I know who the Commissioners were.

Q Now, do the letters, that is, do the letters which

are in evidence as Defendant’s Exhibit 12 reflect the

policy of the EEOC during your incumbency as

General Counsel with respect to the treatment of |

pregnancy disabilities under an employer disability |

benefit plan?

A Yes.

[561]. Q Now, how thoroughly was this matter

discussed within the Commission?

A-4

A I would have to answer you this way. The

whole question of sex discrimination occupied a good

deal of the Commission’s attention during the first

year.

Pregnancy, maternity leave was one aspect of the

sex discrimination.

It was also one of the problems that I think baffled

the Commission the most. So I would say that this

aspect of sex discrimination certainly as well as the

broader problem of other aspects of sex discrimins-

know, the word was added to race, color, religion,

et cetera, not fortuitously but without any legislative

history. ,

[562] Q But whatever legislative—but you did

make an inquiry into the question of whether there

was explicit legislative histroy?

A Oh, indeed, because in interpreting Title 7 we

relied heavily on the legislative history whenever it

was available. I am saying in the instance of sex

discrimination there wasn’t any.

s * . »

[568] Would you look at the last sentence, please,

in the November 15 letter?

A Yes.

A+

Q Would you explain, if you can, what the term

“fringe benefits” means as used in that sentence?

A Yes. Fringe benefits would include wage con-

tinuation, pay, pay in the nature of sick pay, hos-

pitalization, any other benefit like that applied in the

case of absence due to other illnesses. But I think

the chief thing was pay.

Q Pay continuation, are you saying?

A Yes.

Q During pregnancy?

A Yes. During the absence.

Q Whether or not the pregnancy was covered by

a disability policy, is that what this refers to?

A No. I am trying to say that it was the Com-

mission’s position that pregnancy could be treated

differently from a medical illness and that it was

not necessary to make the same provision in the case

of pregnancy as was made in the case of medical

illness, be [564] it under company policy or under

various sickness and health plans.

Q Now, would you look, please, at the November

10 letter, Mr. Duncan, and in particular to the last

two paragraphs thereof?

A Yes.

Q I note that there is a reference in there to an

employee disability plan, benefit plan financed by

both the employer and the employees.

Would the response set forth in the letter have

been any different had the letter beenconcerned with

a, benefit plan sponsored by the employer

A No, clearly not. It was put that way because

that is the way the question was put to us. It was

our style to answer the question as asked. However

the plan is financed, on a contributory basis or solely

by the employer, the Commission’s policy was that

you did not have to provide the same benefits for

maternity absence that you did for illness-caused

-absence. ;

[566] Q Mr. Duncan, to get on with it, have you

had occasion to read the guidelines on discrimination

because of sex which were issued by the EEOC in

1972?

A Yes, I have.

Q How recently was that?

A As recently as today.

Q You [are] then familiar with the policies ex-

pressed in such guidelines, that is the 1972 guide

lines, concerning the matter of disability insurance

coverage and so-called pregnancy and childbirth die

abilities?

A Yes.

Q Now, in 1966 when the policy formulated in

the letter[s] we have here was taking place, was

there any discussion within the Commision of a policy

such as appears in the 1972 guidelines?

A I would say yes, Mr. Strauss, to the best of

my recollection.

As I indicated earlier, the Commission policy [567]

on this point was extensively considered, various

alternatives for treating this problem, how do you

handle maternity leave, various alternatives were

discussed.

One of the alternatives that was discussed was,

necessarily, would have been to treat it as an illness

induced absence. So that was discussed, yes.

Q And rejected?

A-7

A Well, the Commission’s policy was as these

Ietters state.

Q So that this may be clear, [it] may have been

evident, but I presume then that when the so-called

1972 policy was discussed in connection with the

1966 formulation the presence or absence of legisla-

tive history was also discussed at the same time?

A Iam sure it was. I don’t specifically remember

that.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.