Amicus Curiae Brief — Geduldig v. Aiello

Supreme Court brief1974

Ask Donna

What actually matters in this document.

Text

TABLE OF CONTENTS

pi Fox Laive vo Fue Bur 4s Awict CURIAE IN

rr ACTION LEAGUE EDUCATIONAL AND LEGAL DE-

= PUND AND HUMAN RIGHTS FOR WOMEN, INC.....

s AMICI CURIAE IN SUPPORT OF APPELLEES ON

LF OF WOMEN’s Equity ACTION LEAGUE EDU-

¥AL AND LEGAL DEFENSE FUND AND HUMAN

is FoR WOMEN, INC.

nent of Interest of Amici Curiae

ction and Summary of Argument _.....................

, D |diebaded to Pregnancy Connot Be Dis-

the California Plan on the Grounds That ited

¥ pare Not Illnesses or Injuries -.... ps

A Neither the Lay Terms “Illness” and “In-

jury” Nor the Medical Term “Disease” Ex-

4 - elude Disabilities Arising From Pregnancy...

—&B. The Disabilities Which Are Covered By the

California Plan Indicate That the Terms “Ill-

ness” and “Injury” Include Physiological

Conditions That Cannot Be Distinguished

From Pregnancy-Related Disabilities _......_..

Z "©. The Fact That Disabilities Related to Preg-

> nancy Are Statistically Common Does Not

Justify Their Exclusion From Coverage

Under The California Plan

. Pregnancy-Related Disabilities Are No More

Voluntary Than Other Conditions Covered By

. the State’s Plan

i I. Pregnancy- -Related Disabilities Are No More

> Subject to Planning Than Other Conditions Cov-

ered by the California Plan

TABLE OF CONTENTS—Continued Page

IV. Medical Disagreement Regarding the Duration

and Severity of Pregnancy-Related Disabilities

Is No Greater Than the Disagreement Regard-

ing Other Disabilities Covered By the California

Plan . 42

A. Physicians Disagree as to the Duration and

' Severity of Many Disabilities Included in the

California Plan 18

B. Appellant Has Overstated Physicians’ Dis-

agreement As To the Duration and Severity

of Pregnancy-Related Disabilities »

Conclusion ___.. ml

baat

AUTHORITIES CITED

Cases: Page

Gilbert v. General Electric Co., No. 142-72-R (E.D.

Va., filed March 15, 1972) passim

Greenwood V. United States, 350 U.S. 366 (1956) .. 19

Memorial Hospital, et al. v. Maricopal County, et ,

al., 42 U.S.L.W. 4277 (Feb. 26, 1974) —..-..._... 6

Rentzer V. Calkifornia Unemployment Ins. Appeals

Bd., 32 Cal. App. 3d 604 (1973) 6

Shapiro V. Thompson, 394 U.S. 618 (1969) _.__.. 6

Statutes:

California Unemployment Insurance Code, Section

2626, 2626.2 (Stats. 1958, c.308 p.1531, as

amended, January 1, 1974) passim

Miscellaneous:

AMERICAN COLLEGE OF OBSTETRICIANS AND GYNE-

COLOGISTS, Policy Statement on Pregnancy-Re-

lated Disabilities, March 2, 1974 22

BECK, OBSTETRICAL PRACTICES (6th ed. 1955) _._.. 11, 12

BiorcK, The Return to Work of Patients With

Myocardial Infarction, 17 JOURNAL OF CHRONIC

DISEASES 653 (1964) 19

Bumpass & WESTOFF, The “Perfect Contraceptive”

Population. 169 SCIENCE, 1177 (1970) _........... 14

DORLAND, 24th ILLUSTRATED MEDICAL DICTIONARY

(24th ed. 1965) 9,12

OscaR HARKAVY & JOHN MAIER, Research in Re-

productive Biology and Contraceptive Technol-

ogy: Present Status and Needs for the Future,

FAMILY PLANNING PERSPECTIVES, vol. 2, No. 3

(June 1970) 15

KAUFMAN & BECKER, Rehabilitation of the Patient

With Myocardial Infarction, 10 GERIATRICS 355

(1955) 18

NaGLE, GANZOLA & PICTON-ROBINSON, Factors In-

fluencing Return to Work After Myocardial In-

farction, THE LANCET (Aug. 28, 1971) —.—.......... 18

AUTHORITIES—Continued

Page

NAUGHTON, BRUHN, LATEGOLA & WHITSELT, Reha-

bilitation Following Myoeardial Infarction,

AMERICAN JOURNAL OF MEDICINE 210 (May

1969) 19

NIMH, Preliminary Findings From the Peychi-

atric Inventory of St. Elizabeth's Hospital (May

1970)

Thomas S. Szasz, The Right to Health, 57 GEORGE-

TOWN L.J. 784 (1969) one ecceeecececeeeeeeeeeeeeees 19

TENNY & LITTLE, CLINICAL OBSTETRICS (1961) ..... 1]

VoRHERR, Puerperium, Maternal Involutional

Changes and Lactation, in GYNECOLOGY AND OB-

STETRICS, rev. ed., vol. 1, chap. 20 (Davis ed.

UU sicticsbipicaienissneitail lanhiiciisiitasiiiaiapnininabiis lacie ll

Westorr & WeEsTorr, From Now To ZERO; Fer-

TILITY CONTRACEPTION AND ABORTION IN AMER-

ICA (1971) ... 14,15

WIGLE, SYMINGTON, LEWIS, CONNELL & PARKER,

Return to Work After Myocardial Infarction,

CANADIAN MEDICAL ASSOCIATION JOURNAL (Feb.

6, 1971) — 18

WILLIAMS, OBSTETRICS (1966) 9, 11, 12

}

IN THE

‘Supreme Court of the United States

OCTOBER TERM, 1973 ,

No. 73-640

DWIGHT GEDULDIG,

~ Appellant,

CAROLYN AIELLO, individually and on behalf

of others similarly situated,

Appellees.

DWIGHT GEDULDIG,

% Appellant,

AUGUSTINA D. ARMENDARIZ, ELIZABETH JOHNSON,

JACQUELINE JARAMILLO, individually and on behalf

of all other women similarly situated,

Appellees.

Consolidated Cases on Appeal from the United States

District Court for the Northern District of California

The Women’s Equity Action League Educational and

Legal Defense Fund (hereinafter “WEAL Fund”) and

Human Rights for Women, Inc. (hereinafter “HRW”)

hereby respectfully move, pursuant to Rule 42 of the

Rules of this Court, for leave to file the attached brief as

Amici Curiae in support of Appellees in this case. The

consent of both the Appellant and the Appellees has been

obtained and filed with the Clerk of this Court.

WEAL Fund is a non-profit, tax-exempt corporation

organized to provide legal assistance and services to ep-

sure the full recognition and participation of individuals

in all facets of American life without discrimination

based on sex. HRW is a non-profit, tax-exempt organizs-

tion whose purposes are to provide volunteer legal assist

ance in litigation involving rights of women under the

law, to undertake research on issues relevant to discrim-

ination against women, and to provide for educational

projects on conditions concerning women.

Both groups have participated as Amici Curiae in

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

filed March 15, 1972), a pending case which addresses

many of the same issues raised by the case at bar.

Gilbert v. General Electric Co. concerns the sickness and

accident insurance plan provided by General Electric to

its employees as a fringe benefit of employment. It is

similar to the original California State disability insur

ance plan at issue in that all disabilities are covered ex-

cept those related to pregnancy. Many of the arguments

and much of the evidence considered in the Gilbert case,

therefore, is also relevant to the case now before this

In particular, substantial medical evidence was intro

duced in the Gilbert case comparing the excluded preg-

nancy-related disabilities with the disabilities which were

1 Women’s Equity Action League (hereinafter “WEAL”), rather

than the WEAL Fund, was an Amicus in the Gilbert case. The

WEAL Fund was established by WEAL in order to assume the fune-

tion of providing legal services to further the common goal of both

groups—the elimination of sex discrimination. However, the WEAL

Fund did not actively commence its activities until after WEAL

participation in the Gilbert case was begun.

insured by the company. In the attached brief, Amici will

discuss this medical evidence and demonstrate that it

supports the position of Appellees that no valid distinc-

tions can be drawn between the disabilities insured by

the California State insurance plan and the pregnancy-

related disabilities which are excluded.

CONCLUSION

For the foregoing reasons, Amici request that the Mo-

tion to File Brief As Amici Curiae in Support of the

Appellees should be granted.

Respectfully submitted,

/s/ Joseph N. Onek

JOSEPH N. ONEK

/s/ Marcia D. Greenberger

MARCIA D. GREENBERGER

Center for Law and Social

Policy

1751 N Street, N.W.

Washington, D.C. 20036

Attorneys for Women’s Equity

Action League Educational and

Legal Defense Fund and Human

Rights for Women, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-640

DWIGHT GEDULDIG,

'. Appellant,

CAROLYN AIELLO, individually and on behalf

of others similarly situated,

Appellees.

DWIGHT GEDULDIG,

. Appellant,

AuGUSTINA D. ARMENDARIZ, ELIZABETH JOHNSON,

JACQUELINE JARAMILLO, individually and on behalf

of all other women similarly situated,

Appellees.

Consolidated Cases on Appeal from the United States

District Court for the Northern District of California

BRIEF AS AMICI CURIAE IN SUPPORT OF

APPELLEES ON BEHALF OF WOMEN’S EQUITY

ACTION LEAGUE EDUCATIONAL AND LEGAL

DEFENSE FUND AND HUMAN RIGHTS FOR

WOMEN, INC.

STATEMENT OF INTEREST OF AMICI CURIAE

The interest of Amici Curiae is fully described in the

Motion for Leave to File Brief As Amici Curiae above.

INTRODUCTION AND SUMMARY OF ARGUMENT

The issue in this case is whether the State of California

can constitutionally exclude disabilities related to “normal

pregnancies” from coverage under its disability insurance

program.* California has stated that its objective in ex-

cluding such benefits is to limit the costs of the p :

Certainly cost control is a valid legislative objective

However, it cannot be achieved in a manner which vio

lates the equal protection guarantees of the fourteenth

amendment.‘ At the least, the State must have a rational

basis for selecting its particular method of furthering

economy.® The State, for example, could not control the

costs of its program by excluding from coverage all per-

sons with blue eyes. Nor could it control the costs by

arbitrarily excluding from coverage a particular type of

injury—such as broken legs. Amici contend that the

State of California is similarly precluded from achieving

2 Initially the State excluded all pregnancy-related disabilities

from coverage under the Act. As a result of a state court’s inter-

pretation of the original statute, California Unemployment Insur-

ance Code, Section 2626 (Stats. 1953, c.308 p.1531) in Rentzer v.

California Unemployment Ins. Appeals Bd., 32 Cal. App. 3d 604

(1973), and the amendment to the statute effective January 1, 1974,

only disabilities that do not arise from “an abnormal and involun-

tary complication of pregnancy” are excluded from coverage. The

State apparently takes the position that under the new law only

disabilities arising from “normal” pregnancies are excluded from

coverage. See Appellant’s Brief at 3-4.

* See Appellant’s Brief at 13-15, where the four réasons for ex-

cluding benefits are listed, and the State explains that the first

three are designed to further “fiscal objectives,” while the fourth

reflects a legislative policy decision based in part on Rhode Island’s

experience of the costs of coverage.

* See Shapiro v. Thompson, 394 U.S. 618, 633 (1969); Memorial

Hospital, et al. v. Maricopal County, et al., 42 U.S.L.W. 4277, 4281

(Feb. 26, 1974).

5 Amici will not address the issue of the proper standard of re

view to be applied in this case, for this issue is fully covered in

other briefs.

cost control by excluding disabilities arising from normal

pregnancies.

California attempts to justify its decision to exclude

coverage for disabilities related to “normal pregnancies”

as a method of cost control “[b]ecause pregnancy-related

absences are not physiologically comparable to illness or

injury ....”° In this brief, Amici will focus on the

question of whether, as a “physiological” or medical mat-

ter, disabilities caused by normal pregnancies can be dis-

tinguished from the other disabilities covered by the Cali-

fornia program.

California contends that the pregnancy-related disabil-

ities are unlike the other disabling conditions which are

insured because they are normal, voluntary, subject to

planning, and because there is disagreement as to the

criteria for determining the period of disability. Amici

will demonstrate that, in fact, these characteristics can-

not all be applied to disabilities related to the normal

pregnancy, nor do they serve to distinguish such disabil-

ities from other disabling conditions insured by the Cali-

fornia program.

ARGUMENT

L Disabilities Related to Pregnancy Cannot Be Dis-

tinguished From Other Conditions Included in the

California Plan on the Grounds That They Are Not

Ilinesses or Injuries.

A basic issue in this case is whether pregnancy-related

disabilities are, as a physiological matter, any less ill-

hesses or injuries than the other disabilities covered by

the California disability insurance plan. Appellant’s em-

phasis on the fact that pregnancy per se may be con-

sidered a normal condition and not an illness or injury

* Appellant’s Brief at 14.

is irrelevant.’ Appellees do not claim that women should

be entitled to benefits under the California plan simply

because they are pregnant, but only that they be covered

if their pregnancy results in disability requiring a work

absence. By failing to focus on the nature of the dis

abilities associated with pregnancy, Appellant has failed

to confront this basic issue.

A. Neither the Lay Terms “Illness” and “Injury” Nor

the Medical Term “Disease” Exclude Disabilities

Arising From Pregnancy.

The California Unemployment Insurance Code provides

for a program which insures California workers against

disabilities requiring absences from work. Section 2626

defines disabilities to include “both mental or physical ill-

ness, [and] mental or physical injury ... ,” but, with

regard to pregnancy-related disabilities, section 2626.2

states that only such disabilities caused by “an abnormal

and involuntary complication of pregnancy . . .” are in-

cluded.* ~The State argues that pregnancy-related dis-

abilities were excluded from coverage because pregnancy

is “neither illness nor injury ....”* However, when

the terms “illness” or “injury” are examined, it becomes

clear that the disabilities caused by pregnancy are as

much illnesses or injuries as other disabilities covered by

the plan.

The statutory words “illness” and “injury” are not in

fact medical terms. Instead, they are used by laymen,

and refer to general, subjective conditions whose common

thread is disability. Dr. Andre Hellegers, an expert wit-

ness for plaintiffs at trial in Gilbert v. General Electric

™ See Appellant’s Brief at 17-19.

* California Unemployment Insurance Code §§ 2626, 2626.2 (Stats.

1953, ¢.308 p.1531, as amended, January 1, 1974).

* Appellant’s Brief at 17.

Co., No. 142-72-R (E.D. Va., filed March 15, 1972), has

explained that terms such as “illness” or “sickness” are

terms used by laymen to describe the way they feel,

rather than terms which denote discrete medical condi-

tions.” Similarly, Dr. George Wilbanks, an expert wit-

ness at trial for defendants in the Gilbert case, stated that

lay persons use the terms “illness” or “sickness” to mean

a “poor feeling,” while “ ‘disease’ as used by the medical

person, would be critically defined as a definite condi-

tion.” *

There can be no question that during the period of dis-

ability associated with the most normal of pregnancies—

labor, delivery (parturition) and at least the early stages

of recovery (puerperium)—-women suffer discomfort,

in, and would be considered as feeling “poorly” or

ilL* Appellant has agreed that during this period, women

%” Dr. Andre Hellegers’ discussion of the term “illness” is found

at Gilbert v. General Electric Co., supra, Transcript of Trial, July

24-26, 1973 (hereinafter “Gilbert Transcript”), at 243. An affidavit

of Dr. Hellegers, describing his expertise, has been submitted by

Appellant in this case in its Appendix at 43.

4 See Gilbert Transcript at 577. There are a variety of acceptable

medical definitions of the technical term “disease.” It has been de-

fined most often as “a condition which, if not corrected, could lead

Sain 4 Goan aoclite de gr gece Bi raped

psychological, i *

Dr. Andre Hellegers, Gilbert Transcript at 242-243. According to

DORLAND, 24th ILLUSTRATED MeEpicaL DicTIONARY (24th ed. 1965)

428, a disease is “a definite morbid process having a characteristic

train of symptoms. It may affect the whole body or any of its parts,

ee ee ae pengnee may be known or un-

™ See WILLIAMS, OBSTETRICS (1966), 397, 399, which discusses the

pain involved in labor and childbirth. The average duration of labor

for a woman delivering her first baby is twelve haurs, and the aver-

age duration for later deliveries is eight hours. Moreover, drugs

are physically unable to work.* Certainly, then, preg-

nancy-related disabilities must fall within the meaning

of the lay term “illness.” The California legislature ap-

parently recognized this fact, and therefore expressly ex-

cluded disabilities related to normal pregnancy from coy-

erage under the Act.

Moreover, the disabilities associated with normal preg-

nancies even fit within the most common definition of the

more technical term “disease”—a condition which, if not

corrected, could lead to further debility..* During birth,

the vaginal tissues will most likely rip; and if the open-

ing is not properly repaired, Dr. Hellegers has stated

that a woman would have a diseased condition, causing

her discomfort for the rest of her life. Therefore, vir-

tually every birth in the United States involves the surg-

ical procedure of an episiotomy, a cutting of the tissue

between the posterior opening of the vagina and the rec

tum to provide an opening large enough for the baby’s

head to pass through.** The operation is performed be

cause an incision is easier to repair than a tear. The

repair is done with absorbable sutures, usually under

and narcotics are often prescribed for pains occurring after child

birth. Id., at 482.

Dr. David Forrest, an obstetrician and gynecologist, who was an

expert witness for plaintiffs at trial in Gilbert v. General Electric

Co., supra, testified that from the evidence of the need for an anes-

thetic, at least for the episiotomy which is performed in virtually

every case, all women suffer discomfort during labor and delivery.

See Gilbert Transcript at 89. See also testimony of Dr. Wilbanks,

Gilbert Transcript at 586; testimony of Dr. Hellegers, Gilbert Tran-

seript at 332.

18 Appellant’s Brief at 20.

14 See note 11, supra.

18 The procedure can only be performed by a licensed doctor or

nurse midwife. Testimony of Dr. Hellegers, Gilbert Transcript at

331.

Se Rf

anesthesia, and the sutures and anesthesia are the same

kinds that are used in other surgical procedures.”*

Moreover, the usual practice in the United States is to

hospitalize women during labor and delivery because med-

ical presence during this period is necessary to ensure

that the process is completed without other emergency

complications arising. During birth, in addition to per-

forming the episiotomy, the physician guides the infant’s

head, and, if necessary, prevents the baby from emerging

too quickly.**

Similarly, after the birth, hospitalization is continued

at least for a short period of time. The condition of

the birth passages in the early days of puerperium has

been compared to an open wound, with the attendant

dangers of infection.* Dilation and partial dysfunction

of the renal pelvis and uretic and urinary bladder occur

which foster the development of urinary tract infections.”

%* See testimony of Dr. Hellegers in Gilbert Transcript at 330-332.

1 See testimony of Dr. Hellegers in Gilbert Transcript at 330.

These functions certainly go beyond hand-holding and rubbing

backs, which were highlighted by Appellant as Dr. Hellegers’ testi-

mony in its Brief at 31, fn.48.

In BECK, OBSTETRICAL PRACTICE (6th ed. 1955), 388, it is stated:

“Following labor, the birth passages are the seat of lacerations,

which serve as possible portals of entrance for virulent bac-

teria. In addition, the relaxed condition of the vagina and

pelvic floor leaves the introitus [external opening] more patu-

lous [exposed] than normal. For these reasons, the vulva should

be regarded as an open wound during the early days of the

puerperium, and every conse ca should be taken to protect

against its infection.”

*TENNY & LITTLE, CLINICAL OBSTETRICS (1961), 398. See also

WILLIAMS, supra at 479, and VORHERR, Puerperium, Maternal Involu-

tional Changes and Lactation, in GYYNECOLOGY AND OBSTETRICS, rev.

ed.,, vol. 1, chap. 20 (Davis, ed. 1972), 11, which states:

“The urinary bladder also frequently is traumatized during

delivery, whereupon it becomes edematoric and hyperemic.”

In addition, leukocytosis (an increase in white blood cells)

appears at this stage.” Again, just as when other condi-

tions are accompanied by similar symptoms and risks

medical attendance is required in the case of disabilities

related to pregnancy.

In short, even the common technical definition of “dis.

ease,” which focuses on a condition which requires treat-

ment if further debility is to be avoided,” surely encom-

passes the condition of a woman during the period she

is disabled during pregnancy.

B. The Disabilities Which Are Covered by the Cali-

fornia Plan Indicate That the Terms “Iliness’

and “Injury” Include Physiological Conditions

That Cannot Be Distinguished From Pregnancy

Related Disabilities.

Because every disability necessitating absence from

work is covered under the California plan except those

arising from a normal pregnancy, many disabilities are

insured which are not uniformly defined as “diseases”

For example, disabilities caused by elective surgery, alee

holism, obesity and migraine headaches are insured by

the California plan. All of these conditions, therefore, fit

within the meaning of the term “illness” as used in the

statute, yet none are considered to fall within every tradi-

tional medical definition of the term “disease.” *

Hence, it is only with regard to disabilities related to

pregnancy that undefined notions of “normal processes”

and “physiological” distinctions are cited as justification

for exclusion. When other disabilities are at issue,

the only relevant question is whether absence from work

2 See BECK, at 387; and WILLIAMS, at 484, who also describes the

occurrence of lymphopenia and eosinopenia.

™ See note 11, supra.

_ 2 See DORLAND, ILLUSTRATED MEDICAL DICTIONARY, supra, whic

excludes all of these conditions from the definition of the tem

“disease.”

_—_

is medically necessary. Physiological distinctions between

cosmetic surgery to alter physical appearance and condi-

tions arising from cancer or heart ailments are deemed

to be irrelevant. Similarly, such distinctions must be ir-

relevant to the issue of whether pregnancy-related disabil-

ities are to be covered under the California plan.

C. The Fact That Disabilities Related to Pregnancy

Are Statistically Common Does Not Justify Their

Exclusion From Coverage Under the California

Plan.

t characterizes pregnancy as “statistically nor-

mal” and, by implication, similarly characterizes the dis-

abilities related to normal pregnancies. However, sta-

tistical frequency has played no part in excluding any

other type of disability from coverage under the Cali-

fornia plan.

For example, disabilities arising from the common cold

are covered, despite the fact that virtually every worker

will be disabled by a cold during his or her working

career. Similarly, influenza epidemics recur almost an-

ually, and affect vast sections of the population. Yet

again, such disabilities are insured without question so

long as absence from work is required. Therefore, it is

only when pregnancy-related disabilities are at issue that

infrequency of occurrence becomes a prerequisite to cov-

erage.

IL Pregnancy-Related Disabilities Are No More Volun-

tary Than Other Conditions Covered by the State’s

Plan.

Appellant stresses that pregnancy is voluntary and

justifies the exclusion of pregnancy-related disabilities

from coverage under the California plan on this ground.™

™ Appellant’s Brief at 18.

™ Appellant’s Brief at 19.

But it is a matter of common sense that once the focus

is placed where it belongs—on pregnancy-related disabil-

ities rather than pregnancy per se—Appellant’s argu.

ment has little value. Even in cases where pregnancy is

desired, one could hardly contend that disabilities asgoei-

ated with pregnancy are also desired. The disabilities

like income taxes, may be inevitable, but they are no

* voluntary.

Significantly, the California plan covers elective pro

cedures, including cosmetic surgery, where the employee

has voluntarily chosen to undergo the operation. In these

cases, as in pregnancy, some period of disability is in

evitable. Yet the State does not contend that these dis

abilities are voluntary and therefore excludable from evy-

erage.

Moreover, there are many instances where the preg.

nancies themselves are not desired. As abortion and

adoption statistics attest, many women become pregnant

involuntarily with no intention of carrying to term or

of taking on the responsibilities of parenthood. Unwanted

pregnancies and unwanted children are not a thing od

the past.** Even the most effective contraceptive methods

are far from fail safe,* and, in addition, many women

cannot use them because of medical or religious reasons

25 A study by Bumpass and Westoff indicates that from 750,000 to

more than 1,000,000 births annually in the United States are m

wanted. The “Perfect Contraceptive” Population. 169 ScriENcE, 117!

(1970).

2¢ “All of the (contraceptive) methods used today are imperfect i

some glaring way . . . The results show that in an average

year use failure rates were as follows: pill, 4 percent; IUD,1

percent, condom, 16 percent; diaphragm, 18 percent, witk

drawal, 21 percent; rhythm, 28 percent; foam, 29 percent”

L.A. WestorF & C.F. Westorr, From Now To Zeno; Fe

TILITY CONTRACEPTION AND ABORTION IN AMERICA (1971), 6&4

293-294.

The birth control pill is the most effective contracep-

tive method presently available.” But its safe use over

long periods has not been established, and it has adverse

effects on many women.* Other methods of contracep-

tion are also limited either by their effectiveness or be-

cause they are medically contraindicated for certain kinds

of women.”

and tissue . . . the contraceptive effect of the pill results from

interference with the extremely delicate and complex hormonal

mechanisms which control the menstrual cycle, ovulation and

This elaborate control system is

thrown out of balance, and contraception is achieved by means

which can be compared to using a sledgehammer to kill a mos-

quite.” Oscak HARKAvY & JOHN Mater, Research in Reproduc-

tive Biology and Contraceptive Technology: Present Status

and Needs for the Future, FAMILY PLANNING PERSPECTIVES,

vol. 2, No. 3 (June 1970), 6.

Moreover, women with high blood pressure or a family history of

phlebitis are warned not to take birth control pills. See WEsToFF &

Westorr, From Now To Zeno; Fertitiry CONTRACEPTION AND ABOR-

TON IN AMERICA, supra, at 92-100.

Dr. Hellegers testified in Gilbert v. General Electric Co., supra,

that half the women who use the pill stop taking it within three

years because they can no longer tolerate the side effects. Gilbert

Transcript at 316.

*The effectiveness of other methods is described in note 26

Transcript at 274-275; testimony of Dr. Forrest, Gilbert Transcript

at 52. The 20 percent expulsion rate was cited as an index of the

numbers of women for whom this contraceptive method is inappro-

priate. Testimony of Dr. Hellegers, Gilbert Transcript at 275.

In addition, for many women any means of con

tion other than the rhythm method creates a religion,

dilemma. Yet this technique is considerably less effective

than other available methods,” and, in fact, is of litte

use to women with irregular menstrual cycles.

Abortion remains a last resort for women whose cop.

traceptive methods have not been effective. But ther

are occasions when abortions would be medically co.

traindicated,“ and, as a practical matter, in certain ares

of the country abortions are not available.* Most im

portant, abortion is unacceptable to millions of women @

moral or religious grounds, including many women who

find the most effective methods of contraception unac

ceptable.

Finally, the fact that sexual intercourse may be volu

tary, although the resulting pregnancy is unwanted, can-

not serve to justify the exclusion of pregnancy-related

benefits from coverage.* The California plan provides

benefits for many disabilities which arise from voluntary

activities. Disabilities caused by suicide attempts, a-

cessive smoking, excessive drinking, and dangerous sports

activities are all covered. In many of these instance,

individuals recognize that their activities are likely w

% See note 26, supra.

* Dr. Hellegers has stated that abortion is medically contrair

pregnancies if the first pregnancy is aborted. Gilbert Transcript #

276-277.

32 Roman Catholic hospitals in the United States (one-third d

all private hospitals) will not perform abortions on their premise

A high percentage of Baptist hospitals similarly refuse to allow

abortions to be performed in their facilities. Testimony of Dr. He

legers, Gilbert Transcript at 277-278.

3 Obviously in the case of rape, the sexual intercourse itself

not voluntary. eee ee Seen Oy Se

erage even under those circumstances.

result in disabling injuries and knowingly accept the

risks involved. Yet the State has not claimed that these

disabilities are voluntary and thus excluded from cover-

age.

II Pregnancy-Related Disabilities Are No More Subject

to Planning Than Other Conditions Covered by the

California Plan.

Appellant also stresses “that pregnancy is, to a much

extent than any illness or injury, . . . subject to

planning.” Appellant suggests that women may there-

fore go to work for one year solely to collect disability

payments after childbirth.”

In fact, there are many disabilities covered under the

California plan which allow for greater planning than

do disabilities related to pregnancy. Elective surgery—

eg., the removal of benign tumors or cosmetic surgery—

is, of course, totally subject to planning. Not only is it

possible to decide whether to undergo the surgery, but

the exact timing of the disabling period can be chosen.

i , Many non-elective operations are subject to

which can often be scheduled to suit the patient’s con-

venience. It is the fortunate woman, on the other hand,

who can succeed in giving birth according to plan pre-

cisely one year after she has become employed.

‘WAppellant’s Brief at 19-20.

—

IV. Medical Disagreement Regarding the Duration and

Severity of Pregnancy-Related Disabilities Is No Great-

er Than the Disagreement Regarding Other Disabijj.

ties Covered by the California Plan.

A. Physicians Disagree as to the Duration and Sever.

ity of Many Disabilities Included in the Californig

Plan.

Appellant contends that “doctors disagree sharply on

‘the duration and severity of pregnancy disability” and

that this disagreement justifies the exclusion of preg.

nancy-related disabilities.* However, even if some dis

agreement does exist, doctors also disagree on the duration

and severity of many other disabilities which are covered

by the California plan. There are, for example, wide

differences of opinion on how promptly heart attack vic

tims should return to work. Numerous academic studies

criticize the practicing physician for discouraging heart

attack victims from returning to the work force prompt-

ly.* Similarly, the California plan covers mental illness,

yet it is well-established that physicians differ sharply

%5 Appellant’s Brief at 32.

* Kaufman and Becker cite “the untrained, unenlightened phys-

cian” as a “major” cause of employment disability. Rehabilitatio

of the Patient With Myocardial Infarction, GERIATRICS (August

1955), 355-358. Another study found that:

“over half of those unemployed need not be out of work. Fo-

lowing myocardial infarction much of the disability experi-

enced by these patients is functional rather than organic and

due to the inappropriate medical advice. Misinterpretation of

symptoms by the patient and his doctor is a frequent basis

for unnecessary inactivity and subsequent failure to return &

work.” WIGLE, SYMINGTON, LEwis, CONNELL & PARKER, Reten

to Work After Myocardial Infarction, CANADIAN MEDICAL ASS

CIATION JOURNAL (Feb. 6, 1971), 210, 212.

Nagle, Ganzola and Picton-Robinson in Factors Influencing Retun

to Work After Myocardial Infarction, THE LANCET (Aug. 28, 1971),

454-456, conclude that “essentially the problem seems to be one d

education of hospital staff, general practitioners, employers, ree

tives and the patients themselves.”

as to what constitutes mental illness and as to the proper

method of treating such illness, including the period of

time the patient remains disabled.*

Appellant also implies that the disagreements as to the

duration of pregnancy-related disabilities are unique be-

cause they stem in part from soci nomic considera-

tions such as the relationship between mother and the

new-born infant. However, disagreements as to the dura-

tion of other disabilities may stem from socio-economic

considerations as well.

For example, in the case of heart attacks, some physi-

cians suggest that given the poor employment prospects

of older persons and improved retirement benefits, older

heart attack victims should be encouraged to retire rather

than try to return to the work force.* And, in cases

3 See Thomas S. Szasz, The Right to Health, 57 GEORGETOWN L_J.

734, 743 (1969), who states that in the area of psychiatry there are

“unclarified issues concérning what constitutes an illness and treat-

ment ... .” He points out that in a leading text book there are

listed :

“40 methods of psychotherapy. Among these . . . [are included]

physical treatment, medicinal treatment, reassurance, authorita-

tive firmness, hospitalization, ignoring of certain symptoms and

attitudes, satisfaction of neurotic needs, and bibliotherapy. In

addition, there are physical methods of psychiatric therapy,

such as the prescription of sedatives and tranquilizers, the in-

duction of convulsions by drugs or electricity, and brain sur-

gery. Obviously, the term ‘psychiatric treatment’ covers every-

thing that may be done to a person under medical auspices—

and more.” Id., at 741 [footnotes omitted].

See also Greenwood v. United States, 350 U.S. 366, 375 (1956),

where the Court said :

“[t]he only certain thing that can be said about the present

state of knowledge and therapy regarding mental disease is

' that science has not reached finality of judgment... .”

* NAUGHTON, BRUHN, LaTEGcoLA & WHITSELT, Rehabilitation Fol-

lowing Myocardial Infarction, AMERICAN JOURNAL OF MEDICINE (May

1969), 725-731. See also BiorcKk, The Return to Work of Patients

With Myocardial Infarction, JOURNAL OF CHRONIC DISEASES (1964),

20 Ne ol

involving mental illness, employment prospects and the

availability of out-patient care play a crucial role in

physicians’ determination of the patient’s suitability for

release from an institution and return to the work force”

Furthermore, the California program now covers dis-

abilities related to “abnormal” pregnancies. Presumably,

whatever disagreement there might be among doctors as

to the duration of the disability period in these cases is

similar to that for the disability period related to a nor-

mal pregnancy. In addition, if the complicated pregnancy

results in a successful childbirth, broader socio-economic

concerns such as infant well-being would be considered in

the same way that they would be in the normal pregnancy.

B. Appellant Has Overstated Physicians’ Disagreement

As To the Duration and Severity of Pregnancy-

Related Disabilities.

The disagreement among physicians as to the severity

and duration of pregnancy-related disabilities is not near-

ly so great as Appellant would have this Court believe.

There is an abundance of evidence which indicates that

with respect to normal pregnancy, the medical profession

views approximately six weeks as the average period of

disability, rather than the fifteen weeks claimed by Ap

pellant.

In the eight affidavits of physicians submitted by Ap

pellant, only one states that in a normal pregnancy the

average disabling period would last for fifteen to eighteen

weeks.* A second physician indicates that following con

* A study of patients at St. Elizabeth’s Hospital in Washington,

D.C. found that over half of the patients could be released if appre

priate out-patient facilities and residences were available. Many of

these patients could then return to the work force. NIMH, Pre

liminary Findings From the Psychiatric Inventory of St. Elis

beth’s Hospital (May 1970).

* Affidavit of Dr. D. Allan Treat, Appellant’s Appendix at 31.

servative medical practice, a woman would be advised

to stop working in the third trimester of pregnancy, and

therefore perhaps he would agree with an average dis-

abling period of fifteen to eighteen weeks.“ However, of

the remaining six physicians, only one described the aver-

age disabling period to be as long as six to eight weeks.

The remaining five cited periods of between two to six

weeks as average.

In addition, Appellant’s Appendix A lists the survey

of some California obstetricians and gynecolo-

gists as to the duration of disabilities caused by normal

pregnancies. The estimates ranged from no disability to

fifteen weeks.*? Appellant cited this spread of answers

as indicating a lack of medical consensus, which would

make norms impossible to develop.** However, a more

reasonable explanation of the wide range of responses,

indicating, for example, that there is no period of dis-

ability, is that the physicians did not fully understand

the questions asked in the survey and were not aware of

the appropriate considerations to be taken into account

in making the estimate.

“ Affidavit of Dr. Walter M. Ballard, M.D., Appellant’s Appendix

at 33.

# The average was approximately seven weeks.

* Appellant’s Brief at 32.

“Similarly, the fact that the disability claims for pregnancy

submitted since the lower court opinion in this case have averaged

approximately fifteen weeks can be explained by physicians’ confu-

sion as to the proper elements which comprise a determination of

disability for purposes of the California plan. The affidavit of Betty

Kathleen Kidder, a former claims examiner for the Disability In-

surance Office in San Francisco, suggests that physicians be given

pamphlets describing the physicians’ role and duty in certifying

pregnancy-related disabilities. Moreover, she has explained that the

sample indicating the fifteen week average is small, and therefore

possibly unrepresentative of the claims which will be received. Ap-

pellant’s Appendix at 62-64.

In contrast, the experts testifying both for plaintiff;

and defendant in Gilbert v. General Electric Co. agreed

that the maximum disability period is approximately six

weeks in a normal pregnancy. These physicians, whog

attention was focused on the specific considerations jp.

volved in insuring pregnancy-related disabilities, state

that in most jobs a woman could continue to work unti]

labor, and that following delivery she would be able to

return to work within six weeks.** There is every reason

to believe that once other physicians,are educated as tp

the meaning of disability in pregnancy for purposes of the

California insurance plan, they too will readily conform

their certification of a accordingly and consensus

will be obtained.

Moreover, the American College of Obstetricians and

Gynecologists has stated that “[iJn an uncomplicated

pregnancy, disability occurs near the termination of preg-

nancy, during labor, delivery and the puerperium. The

process of labor and puerperium is disabling in itself.

The usual duration of such disability is approximately

six to eight weeks.” “

Dr. Hellegers has explained that physicians are actually

in a better position to determine the physical condition

of a woman in puerperium than they are with regard

to many other physical conditions. The uterus and its

contents are easily subject to medical examination, and

imitation of disabling conditions of the uterus is extreme

ly difficult.*’

As noted earlier, the State suggests that non-physiolog-

ical considerations also can and should be taken into ac

+5 See testimony of Dr. Hellegers, Gilbert Transcript at 2454,

254-5; of Dr. Wilbanks, Gilbert Transcript at 624-5, 589-90; and of

Dr. Forrest, Gilbert Transcript at 23, 65-67.

Statement on Pregnancy-Related Disabilities, March 2, 1974.

*' Testimony of Dr. Hellegers, Gilbert Transcript at 314.

count in determining the period of disability for preg-

nancy-related conditions.“ If this is the State’s decision,

and physicians are so apprised, it can be expected that the

medical community will develop norms which reflect these

considerations as well.

In short, Appellant has failed to support its allegation

that physicians’ determination of the duration and sev-

erity of pregnancy-related disabilities is uniquely differ-

ent from their determination of the length of other dis-

abilities covered by the California plan. In fact, the ap-

proach taken by physicians in treating and determining

the disabling period associated with pregnancy is com-

parable in every respect to the approach taken with re-

gard to other insured disabilities. Once again, Appellant

has been unable to find a ground for distinguishing preg-

nancy-related disabilities as a medical matter from the

other disabilities which the California plan insures.

CONCLUSION

For the foregoing reasons, as well as for the other

reasons set forth in the opinion below, Amici Curiae urge

that the judgment below be affirmed.

Respectfully submitted,

JOSEPH N. ONEK

Marcia D. GREENBERGER

Center for Law and Social Policy

1751 N Street, N.W.

Washington, D.C. 20036

Attorneys for Women’s Equity

Action League Educational and

Legal Defense Fund and Humes

Rights for Women, Inc.

DATED: March 11, 1974

a IN THE

Supreme Court of the Bite Sooetowe., 22.

OcTosBerR TERM, 1973

No. 73-640

DWIGHT GEDULDIG,

vs. Appellant,

CAROLYN AIELLO, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,

Appellees.

DWIGHT GEDULDIG,

“ Appellant,

AUGUSTINA D. ARMENDARIZ, ELIZABETH B. JOHN-

SON, JACQUELINE JARAMILLO, ET AL., INDIVIDUALLY

AND ON BEHALF OF ALL OTHER WOMEN SIMILARLY SITUATED,

Appellees.

CONSOLIDATED CASES ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.

BRIEF AMICUS CURIAE OF THE CHAMBER OF COM-

MERCE OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE APPELLANT.

MILTON A. SMITH,

General Counsel,

RICHARD BERMAN,

Labor Relations Counsel,

Chamber of Commerce of the GERARD C. SMETANA,

United States of America, Suite 6800,

1615 H Street, N. W., : 233 South Wacker Drive,

Washington, D. C. 20006, Chicago, Illinois 60684,

TABLE OF CONTENTS.

Interest of the Amicus Curiae ................-0005.

Introduction and Summary of Argument tte eeeeeeees

I. The Equal Employment Opportunity Commis-

sion’s Guideline Relating to Pregnancy and

Child-birth Is Entitled to No Weight by This

DR ene Ks nha deed heeepe neces ses one

A. In General an Agency’s Opinions Are Dis-

tinct from an Agency’s Legislative Rules. .

An Agency’s Opinions Have No Force or

Effect of Law and Courts Have Liberty to

Determine What Weight to Give to Them

When Considering Statutory Issues .....

The E. E. O. C.’s Sex Discrimination

Guidelines Are an Agency’s Opinions and

Consequently Do Not Have Effect of Law

The Agency’s 1972 Opinion Declaring That

an Employer Must Provide Benefits for

Maternity or Pregnancy on the Same Terms

As He Provides Benefits for Illness or In-

jury Is Entitled to No Weight by This Court

Because It Is Inconsistent with Prior Opin-

ions, Because It Was Not Issued When Title

VII Was Enacted, and Because It Demon-

strates None of the Toughtfulness Com-

monly Associated with Agency Expertise .

1. Was the Commission’s 1972 Opinion a

Contemporaneous Construction of Title

VII, and Has It Been Applied Con-

sistently by the Commission for a Long

Parle 06 Tee ose ssi ak esi...

2. Was the 1972 Opinion Issued with the

Evident Thoughtfulness That Marks

een

‘i

II. An Employer Need Not Provide Fringe Benefits

for Maternity or Conditions Related to Preg-

nancy on the Same Terms As He Provides These

Benefits for Illness or Injury ...............

A. Congress Did Not Intend to Require That

Employers Provide Fringe Benefits for

Pregnancy and Maternity in the Same

Manner That These Benefits Are Provided

fow Tiineen: 60 TAGUES. 60 Ss Ses cei ccs.

B. The Commission Consistently Recognized

That an Employer Need Not Treat Preg-

nancy and IlIness Alike When Providing

Benefits, and the Court May Rely on These

Precedental Guides When, As Here, the

Commission Without Persuasive Reason

Departs from Its Own Precedent ........

C. An Employer May Exclude Pregnancy,

Maternity and Related Conditions from His

Benefit Program Without Violating Title

VII When the Exclusion Is Related to the

Program’s Legitimate Objectives .......

1. Maternity Benefits May Be Excluded in

Order to Enable the Program to Achieve

Legitimate Objectives .............

2. Precedent Supports an Exclusion Which

Is Related to the Legitimate Objectives

_ Of a Program .......---+-+++++.

D. Judicial and Legislative Authorities Sup-

port the Position That the Exclusion of

Maternity Benefits from Benefit Plans Is

Not Illegal Sex Discrimination .........

1. The Decisions of This Court ........

2. Legislative Authorities .........-..

III. The State Statute Excluding Maternity Benefits

from an Insurance Program Does Not Violate

the Equal Protection Clause ...........---

A. This Court Has Utilized the Rational Basis

B. The Statute Excluding Maternity Benefits

from the Benefit Program Does Not Vio-

late the Equal Protection Clause of the

Fourteenth Amendment .............. 35

1. The Statute Neither Creates Nor In-

volves a Suspect Classification ...... 35

2. The Exclusion of Maternity Benefits

Does Not Abridge Fundamental Con- .

SII TIRING: 6.5 nbc bash enes 37

3. The Statute Denying Maternity Benefits

- Under the State Benefit Program Does

Not Violate the Equal Protection Clause

When the Traditional or Reasonable

Basis Standard of Review Is Employed

to Evaluate Its Constitutionality .... 38

TABLE OF AUTHORITIES CITED.

Cases.

American Newspaper Publishers Association v. Alexander,

294 F. Supp. 1100, 1103 (DC DC, 1968) ......... 8,9

Borden’s Co. v. Baldwin, 293 U. S. 194 (1934) ....... 25

Boyce v. Safeway Stores, Inc., 351 F. Supp. 402 (DC DC,

SGM in Bae oe eae e's Ce cies 65 068s 608k 30

Clark v. California Employment State Com., 166 C. A. 2d

PEE aaa e A C40 a4 Dees bewk <b 60 cc ccws 4

Cleveland Board of Education v. LaFleur, 6 F. E. P. cases

hae, | See are Sein CEN eens exeeg 4,5

Cohen v. Chester Field County School Board, 6 F. E. P.

ee Eg ees eyes | Oe Co eee 4,5

Dandridge v. Williams, 397 U. S. 471 (1970) ........ 38

Dewey v. Reynolds Metal Co., 402 U. S. 689 (1971),

SOD FT ee Cte OTD oon 6 ove Sccce cs cocsech 19

Diaz v. Pan American World Airways, Inc., 442 F. 2d 385

(CA 5, 1971) cert. denied 404 U.S. 950 .......... 0

Espinoza v. Farah Manufacturing Co., ..... U. S. _____. 38

ee ee ee oe | er 9, 11

Espinoza v. Farah Manufacturing Co., S. Ct. Docket No.

72-671, 462 F. 2d 1331 (CA 6, 1972) 4 FEP 931 . .17,21

Frontiero v. Richardson, 93 S. Ct. 1764 (1973) 34, 35, 36, 38

Gibbson Wine Co., Inc. v. Snyder, 194 F. 2d 329 (CA DC,

BN Src packet Gn bids 0's ou we 6 bbls Sn ednsie

Gilbert v. General Electric, Civil Action No. 142-72-R

Bs MP ic ac OK aig os bbws 00 cc ecsnscen et 14

Goesaert v. Clarice, 335 U. S. 464 (1948) ............ 38

Graham v. Richardson, 403 U. S. 365 (1971) ....... 34, 35

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

ass enh b's Sek 600.00 ceeene 16, 17, 26, 27

Korematsu v. United States, 323 U. S. 214, 216 (1944) 34, 35

Kotch v. Board of River Port Pilot Commissioners, 330

os eee cpu envendseas 38

Lindsley v. National Carbonic Gas Co., 220 U. S. 61.32, 34, 39

McGowan v. Maryland, 366 U. S. 420, 425 (1960) .... 34

McLaughlin v. Florida, 379 U. S. 184 (1964) ....... 34, 35

Middleton Board of Education, 56 LA 830 (1971) .... 20

Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61,

Se eae re ey ea 39

Morey v. Doud, 354 U. S. 457, 472 (1957) .......... 32

N. L. R. B. v. Quality Manufacturing Co., No. 72-1663,

decided July 19, 1973 (83 LRRM 2817) petition for

writ of certiorari now pending No. 73-765 .......... 22

National Lead Co., 18 LA 528 (1952) .............. 20

Newmon v. Delta Air Lines, Inc., 7 F. E. P. Cases 26 (U. S.

I SEUED ch osccces sh evecsvtwes sees 16, 17

O'Gorman and Young v. Hartford Insurance Co., 282 U. S.

I eae CE S04 SECTS See ee eee ee lees cee 25

O'Neil v. United States, 281 F. Supp. 359 (ND Ohio ED,

1968) affirmed 410 F. 2d 288 (CA 6, 1969) ....... 8

Orr v. Trinter, 444 F. 2d 128 (1971) cert. den. 408 U. S.

943 (1972) rehearing denied .... U.S. ............ 38

Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) 29, 35

Rapid Transit Corp. v. New York, 303 U. S. 573 (1938) 34

InRe: Petition of Chin Thloot Har Wong, 224 F. Supp. 155

I AEE 255 0 c stes oder cvug cessccancve 11

Reed v. Reed, 404 U. S. 71 (1971) ............008. 29, 32

Republic Steel Corp., 37 LA 367 (1961) ............ »

F. S. Royster Guano Co. v. Virginia, 253 U. S. 421 (1920) 33

San Antonio Independent School District v. Rodriguez, 93

OO UN is ocd ict aioe 34,37

Shapero v. Thompson, 394 U. S. 618 (1969) ........ 34, 35

Skidmore, et al. v. Swift and Co., 323 U. S. 134 (1944) .. 1

United States Department of Agriculture v. Moreno, 93

i SS oo oii os ines ccc ee |

Wallace v. Debron Corp., 368 F. Supp. 837 (DC Mo,

RO i a a 2

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

36 0 6 SS. Si ae 30

Williams v. McNair, 316 F. Supp. 134, 136 (DC DC,

1970) affirmed 401 U. S. 951 .................. 3

Williamson v. Lee Optical Co., 348 U. S. 483, 489 (1955) 32

Zuber, et al. v. Allen, et al., 396 U. S. 168 (1969) ..... i

: Statutes.

Equal Rights Amendment ..................0+000 31

Railroad Unemployment Insurance Act of 1946 ........ »

Title VII of the Civil Rights Act of 1964 ............ *

Re eee Ja bedevonv these RM OS 34 IRD

Miscellaneous.

Davis, Administrative Law Text, Sections 5.03 and 5.11

N MUIIE rah cancuiiiesiucnnsbess ben coacenen 7,11

bit é ity Commission's Opinion Guideline, elie

tive April 5, 1972, Section 1604.10 ..............

Vii

CCH, New Developments, Paragraph 8804 E. E. O. C.

Attorney Discusses Sex Discrimination and Fringe Bene-

fits Under Title VII, 1964 Civil Rights Act ......... 15

H.R. Rep. No. 92-359, 92nd Cong., Ist Sess. 7 (1971) 31, 36

Opinion Letter of General Counsel, November 10, 1966.. 13

Opinion Letter of General Counsel, November 15, 1966.. 13

Opinion Letter of General Counsel, December 9, 1966.. 14

Sammary of State Labor Laws, U. S. Department of Labor,

Ge eg 39

ee SOUS PODEE) ... .. oi. conc acevcts 10

ieee: Past 02608. (1972) .....<............... 9

Se, © ee eee 30

42 U. S. C. Section 2000e-12(b) (1970) ............ 9, 18

42 U. S. C. Sections 2000e-15 (1964) ....... Sievess 6

IN THE

Supreme Court of the Anited States

OcToBER TERM, 1973

No. 73-640.

DWIGHT GEDULDIG,

Appellant,

vs.

CAROLYN AIELLO, INDIVIDUALLY AND ON BEHALF OF ALL

OTHERS SIMILARLY SITUATED,

Appellees.

DWIGHT GEDULDIG,

Appellant,

vs.

AUGUSTINA D. ARMENDARIZ, ELIZABETH B. JOHN-

SON, JACQUELINE JARAMILLO, ET AL., INDIVIDUALLY

AND ON BEHALF OF ALL OTHER WOMEN SIMILARLY SITUATED,

Appellees.

| CONSOLIDATED CASES ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.

BRIEF AMICUS CURIAE OF THE CHAMBER OF COM-

MERCE OF THE UNITED STATES OF AMERICA

IN SUPPORT OF THE APPELLANT.

INTEREST OF THE AMICUS CURIAE.'

The statement of interest has been submitted previously in the

Brief Amicus Curiae of the Chamber of Commerce of the United

States of America in Support of the Jurisdictional Statement.

INTRODUCTION AND SUMMARY OF ARGUMENT.

This case presents the issue of whether a state statute may

exclude maternity benefits from a state insurance program,

which is intended to provide broad coverage at a minimal

cost, without violating the Equal Protection Clause of the Four-

teenth Amendment. This issue, however, can be viewed more

broadly and when so considered this case has national and far

reaching significance. Thus, while the constitutional question is

significant, even more compelling are closely related questions

concerning the Equal Opportunity Commission’s new opinion

guideline, effective April 5, 1972, on pregnancy and childbirth.

This guideline states in part: “(b) . . . benefits . . . shall be

applied to disability due to pregnancy or childbirth on the same

terms and conditions as they are applied to other temporary dis-

abilities.” (Section 1604.10 (effective April 5, 1972) )

Furthermore, a discussion of the Commission’s guidelines is

appropriate in this case because of the reflective effect of these

guidelines on the Fourteenth Amendment. That is, this Court’s

decision here may well be influenced by the guidelines; con-

versely, this Court’s decision here may have a significant im-

pact on the determination of related cases arising under Title

Vil.

Two i of national importance are occasioned by this

guideline:

1. Should this Court give any weight to the Commission’s

opinion or guideline on pregnaricy and childbirth?

2. Should an employer be required to provide fringe benefits

for pregnancy or maternity on the same terms as he provides

these benefits for illness or injury?

It is apparent that the question of whether an employer

covered by Title VII may exclude maternity and related condi-

ons from his insurance program will be a question that will

frequently trouble every employer who provides insurance coy.

erage for his employees, and, in addition, will puzzle lower court

While this Court has rendered decisions in the LaFleur an

Cohen* cases, there is a significant difference between those cases

and the instant case. LaFleur and Cohen involved the narrow

issue of whether school boards’ policies requiring mandatory

maternity leave in the fourth or fifth month of pregnancy violated

the Fourteenth Amendment. That is, the issue was whether there

was a rational basis for an employer to treat all pregnant em-

ployees alike without considering an individual's ability to work

despite pregnancy. Here, this Court is asked to consider whether

an employer may exclude maternity and related conditions from

coverage under his employee benefit program without being

guilty of sex discrimination simply because the excluded condi-

tion occurs only to one sex. To focus more closely on this ques

tion, it is apparent that an employer implementing his benefit

insurance program may, if he chooses, exclude a condition, such

as heart disease, which affects both men and women without

violating any law. Does an employer, then, by excluding mater-

nity and related conditions as covered risks under his benefit

program thereby violate Title VII whether or not he preseats

sound reasons to justify the exclusions? The E. E. O. C. sap

yes. Reason dictates the contrary. This Court has not spokes.

The amicus believes that an employer should be able to forme-

late reasonable rules to promote the objectives of his insurance

program. These objectives are to provide broad coverage and

maximum benefits at a minimal expense. Based upon experience

and information, for example,* an employer may believe that the

inclusion of maternity and related conditions as covered risk

will result in excessive demands upon his fund and therefore wil

require either an increase in premiums for all employees or 2

2. 6F. E. P. Cases 1253 (1974).

3. Tho examples ghien-heve ‘end: clesnhass eis Man

illustrative only and are not intended to be all inclusive or to exclude

t j cae

reduction in benefits to all employees. In those circumstances,

the employer should be able to exclude maternity and related

conditions as covered risks without being guilty of sex discrimi-

nation. ‘This exclusion is consistent with the legitimate objec-

tives Of the disability program. Yet the E. E. O. C. by a brand

new opinion guideline effective in 1972 says that the very exclu-

son of maternity benefits from benefit programs, without more,

volates Title VII and the Appellee here urges that such an

exclusion per se violates Amendment Fourteen.

This Court has not passed upon the constitutional issue or the

more important and related issues concerning the E. E. O. C.’s

guideline and LaFleur and Cohen do not reach these questions.

The amicus believes that this case provides an ideal vehicle for

this Court to provide guidance to employers who come within

the provisions of Title VII of the Civil Rights Act and either

exclude maternity as a covered risk under insurance programs, or

do not provide benefits for this condition on the same terms as

they provide benefits for illness or injury. These issues presented

here are of national scope and involve countless employers.

The amicus will first discuss the weight that should be given

by courts to administrative guidelines, with particular emphasis

on the weight that should be accorded to the E. E. O. C.’s 1972

guideline concerning pregnancy and childbirth. The amicus will

then consider whether Title VII requires an employer to provide

fringe benefits for maternity on the same terms as he provides

these benefits for illness or injury. Finally, the amicus will discuss

the constitutionality of the statute involved in this case.

ARGUMENT.

THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSIONS

RELATING TO PREGNANCY AND CHILD.

IS ENTITLED TO NO WEIGHT BY THIS COUuRr.

It is the position of the amicus that the Commission’s Sq

Discrimination Guidelines are merely current opinions of th

Commissioner as to the meaning of Title VII‘ and that, therefore,

these guidelines do not have the force of law. Consequently, this

Court has complete liberty to decide whether or not it will accord

weight to the Commission’s opinions, and if so, how much. In

this proceeding, the amicus believes that this Court should give

no weight whatever to the Commission’s opinion that fring:

benefits should be provided for pregnancy and maternity on the

same terms as these benefits are provided for illness or injury’

A. In General an Agency’s Opinions Are Distinct from =

, Agency’s Legislative Rules.

the outset, however, it is well to distinguish between a

sapisshs taluicao' 4 tellsaisden vhilace ce Gen tied ae

legislative rules on the other. This distinction is background

necessary to fully appreciate the amicus’ position that the Com

mission’s guidelines are but the Commissioner’s current opinions.

A well reasoned judicial treatment of the distinction betweea

agency opinions or what the court calls “interpretative ruling”

and legislative regulations is found in Gibbson Wine Co., Inc. V.

Snyder, 194 F. 2d 329 (CADC, 1951) at 333. The court stated:

4. Title VII of the Civil Rights Act of 1964, Sections 701-16,

42 U. S. C. Sections 2000e to 2000e-15 (1964).

5. Section 1604.10 (effective April 5, 1972.)

“The distinctive characteristics of interpretative rulings, as

contrasted with so-called regulations, have long been recog-

nized. Administrative Officials frequently announce their

yiews as to the meaning of statutes or regulations. Gen-

erally speaking, it seems to be established that ‘regulations,’

‘substantive rules’ or ‘legislative rules’ are those which create

jaw, usually implentary to an existing law; whereas inter-

ive rules are statements as to what the administrative

officer thinks the statute or regulation means.”

Professor Davis in his treatise on administrative law highlights

this distinction:

“The distinction between interpretative rules and legisla-

tive rules is an essential part of our system, even though the

Supreme Court has never provided a full-bodied discussion

of it. A legislative rule is the product of an exercise of legis-

lative power by an agency, pursuant to a grant (whether

explicit or not) of legislative power by the legislative body;

a court will no more substitute judgment on the content of a

valid legislative rule than it will substitute judgment on the

_ content of a valid statute. A legislative rule is valid if it is

(a) within the gran power, (b) issued pursuant to

proper procedure, and (c) reasonable.

“Interpretative rules are rules which do not rest upon a

legislative grant of power (whether explicit or inexplicit) to

the agency to make law. Interpretative rules usually inter-

pret the statute, but sometimes they properly go beyond the

statute, and when they do they are still called interpretative

rules even though they are not interpretative in the literal

sense.

This distinction t Be Bp Seg ae

tive rules is significant because as we will see “courts often

substitute judgment as to the contents of an interpretative rule

but almost always . . . refrain from substituting judgment as to

the content of a legislative rule.”"

6 Davis, Administrative Law Text, Section 5.11 (1959).

7. Id. at Section 5.03.

“

B. Am Agency’s Opinions Have No Force or Effect of Lay

and Courts Have Liberty to Determine What Weight »

Give to Them When Considering Statutory Issues,

This Court in Zuber et al. v. Allen et al., 396 U. S. 16

(1969), discussed the weight given to administrative opinions

and stated that while contemporaneous opinions are entitled to

weight they are “only one input in the interpretational equation,

. .. The Court may not, however, abdicate its ultimate responsi.

bility to construe the language employed by Congress.” (a

192-193)

The lower courts have fully agreed with Zuber. A particularly

instructive case that discusses what judicial deference is given

to administrative opinions is O’Neil v. United States, 281 F.

Supp. 359 (ND Ohio ED 1968) affirmed 410 F. 2d 88%

(CA 6, 1969). In that case the court observed that all regula

tions are not entitled to equal weight before the courts.

“A court has greater freedom when passing on an inter-

pretative rule than a legislative one. In the case of a

interpretative rule, the legislature has not delegated power

to an agency to make a rule which is binding upon the

courts. An interpretative regulation does not prevent a

reviewing court from substituting its judgment on questions

of desirability or wisdom. ‘The law is embodied in the

statute and the court is free to interpret the statute as it

sees fit.’” ;

The Court in American Newspaper Publishers Association V.

Alexander, 294 F. Supp. 1101, 1103 (DC DC 1968) bluntly

stated that an interpretative rule is “. . . not a regulation

having the force or effect of law.”

We have now seen generally the distinction between admin

istrative opinions and legislative rules and also that it is important

for courts to make this distinction in order to define the exteat

of their powers to interpret statutes when confronted wit

‘a court may substitute its judgment for the agency’s

snd reach a different conclusion than did the agency on the

same facts.

¢. The E. E. O. C.’s Sex Discrimination Guidelimes Are an

Agency’s Opinions and Consequently Do Not Have Effect

of Law.

It is apparent that the E. E. O. C. guidelines are not legisla-

five rules as the courts and commentators have defined that

tem, but are merely expressions of current opinions by the

administrative officers as to the meaning of the statute. There-

fore, these guidelines do not have the force of a law binding

upon ’court, and a court is at liberty, when confronted with

am issue relating to Title VII, to substitute its judgment on

“questions of desirability and wisdom” and to reach a different

result than did the Commissioner when he considered the same

issue, The interpretive nature of the guidelines is seen from

the guidelines themselves:

“Because the material herein is interpretative in nature,

the provisions of the Administrative Procedure Act (5

U. S. C. 553) requiring notice of proposed rule making,

opportunity for public participation, and delay in effective

date are inapplicable.” 29 C. F. R. Part 1604 (1972).*

This Court and lower courts have recognized that the E. E.

0. C’s guidelines are opinions and consistent with judicial

decisions regarding administrative opinions generally have held

that these guidelines do not have “the force or effect of law.”

American Newspaper Publishers Association v. Alexander, supra

at 1103, (emphasis supplied). Espinoza v. Farah Manufacturing

Co., _.» 38 L. Ed. 2d 287, 6 F. E. P. Cases 933.

Indeed there is reason that this Court should not defer to

aay extent to the E. E. O. C.’s guidelines. On March 24,

are based on 42 U. S. C. Section 2000e-

8. voll gpeorgpe

oe tr ) which suggests that such opinions may be issued by

1972 Congress invested the Commission with prosecutorial

powers. Yet while giving these new prosecutorial powers

the Commission, Congress did not accord to the Commissica

the power to make substantive law. The relevant legislatiy

history leaves room for no reasonable doubt, since in Section

713(a) of Title VII (42 U. S. C. 2000c-12(a)), the won

“procedural” was inserted by amendment on the floor of the

House to make clear that the Commission did not have th

power to make substantive regulations.°

The Commission was rather required to prosecute its cases

in a federal district court, and it is this court that is to interpret

the Civil Rights Act and apply that law. There is no doubt

that Congress can bestow upon an agency the power to make

substantive law. The National Labor Relations Board is a

example of an agency to which Congress has given the power

to create a body of substantive labor law. Within the statutory

framework of the National Labor Relations Act, the Genera

Counsel and the Board itself have the power to create a sub

stantial body of labor law and courts have justifiably deferred

to the Board’s expertise." Because the Commission has not

been given the power to create substantive law, its guidelines

may now inform the public of what the prosecutor considers

illegal, but there is no reason for a court to accord the prosecu-

tor’s views a special sanctity or to view them as a body of jaw

having binding, force. The Commission’s opinions are just

that—its view of what constitutes illegal conduct and a court

should treat them as nothing else. The Commission, like the

Justice Department, has been accorded only prosecutorial func-

tions and like the Justice Department cannot fashion the law it

elects to present. This is the fundamental distinction betweea

agencies given only prosecutorial roles and those, such as the

National Labor Relations Board, to which Congress has gives

9. 110 Cong. Rec. 2575 (1964).

10. The Board’s rules pat een ee

contt bar 1 8 representation elon a

sijelicative and regulatory functions as well as prosecutorial

duties. When dealing with a Commission in its new prosecu-

torial function, the court has the ultimate responsibility to de-

termine the law and it must not abdicate this responsibility to

the prosecutor by deference to his guidelines.

D. The Agency's 1972 Opinion Declaring That an Employer

Must Provide Benefits for Maternity or Pregnancy on the

‘Same Terms As He Provides Benefits for Hiness or In-

jery Is Entitled to No Weight by This Court Because It

Is Inconsistent with Prior Opinions, Because It Was Not

" Iesued When Title VII Was Enacted, and Because It

" Demonstrates None of the Thoughtfulness Commonly As-

"sociated with Agency Expertise.

While we have seen that E. E. O. C. guidelines do not have

aforce of law, and that a court need not defer to them when

cmsidering a Title VII issue, the crucial question here is what,

if any, weight should this Court give to the Commission's opinion

that. “(b) - . benefits . . . shall be applied to disability due

w pregnancy or childbirth on the same terms and conditions

# they are applied to other temporary disabilities.”

‘The amicus contends for reasons expressed in subpart C that

this Court should give no weight to this guideline. There are

in addition other important reasons why no weight should be

scorded to this guideline.

Courts confronted with similar questions involving opinions

ofother agencies, have applied a variety of factors’? in evaluating

the weight to give to these opinions. Accordingly, guided by

these factors, we shall examine the Commission's 1972 opinion.

b Section 1604.10 (effective April 5, 1972).

12. Espinoza v. Farah Manufacturing Co., supra; Skidmore, et al.

v. Swift and Co., 323 U. S. 134 (1944); In Re: Petition of Chin

Thloot Har Wong, 224 F. . 155 (D. C. SDNY, 1963) at 165;

Devi, | Administrative Law Text, Section 5.03 (1959).

The factors that are commonly recognized by courts whes

they evaluate the weight to give administrative opinions are:

First, was the opinion a contemporaneous construction of the

statute it purports to interpret?

Second, has the opinion been applied consistently by the

agency over a long period of time?

Third, was the opinion issued with evident thoughtfulness?

Fourth, has the agency demonstrated expertise in dealing with

the subject discussed by the opinion?

When these factors separately or in confederation are applied

to the Commission’s 1972 opinion concerning pregnancy and

maternity benefits, it will be clear that this opinion is entitled

to no weight by courts when they decide Title VII issues.

1, Was the Commission’s 1972 Opinion 2 Contemporancoss Con-

struction of Title VII, and Has It Been Applied Consistently by

the Commission for 2 Long Peried of Time.

The short answer to both parts of this questiom‘is “no.” How-

ever, a brief odyssey through the ission’s pronouncements

on fringe benefits and pregnancy is to fully appreciate

the explicit inconsistency of the Commission’s position.

Between 1966, shortly after Title VII became effective,” and

1969 the Commission issued a number of opinions, announcing

how it would apply Title VII when encountering the issue of

fringe benefits and pregnancy. These opinions reveal a com

sistency of approach to this issue and generally informed em

ployers that they were not required to provide the same fringe

benefits for pregnancy as they provided for illness or injury.

13. Title VII of the Civil Rights Act of 1964 was enacted on

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

For example, in an opinion letter, dated November 10, 1966,

sateen months after Title VII became law, the Commission's

General Counsel stated:

- “In a recent opinion letter regarding pregnancy we have

~ stated, ‘The Commission policy in this area does not seek

to compare an employer’s treatment of illness or injury

with his treatment of maternity, since maternity is a tem-

porary disability unique to the female sex and more or less

to be anticipated during the working life of most women

’ Therefore, an insurance or other benefit plan

may simply exclude maternity as a covered risk, and such

an exclusion would not in our view be discriminatory.”

Five days later, the General Counsel said:

“Gentlemen:

You state that under your collective bargaining agree-

ment male and female employees are granted sick leave

with pay. Female employees, however, are granted ma-

. fernity leaves without pay; although their services are not

terminated. You inquire whether this policy is in com-

pliance with Title VII of the Civil Rights Act of 1964.

The Commission policy with respect to pregnancy does

not seek to compare an employer's treatment of illness or

On the other hand, we do not believe that an employer

(November 15, 1966)

(emphasis supplied )

A month later, he said,

“You have requested our opinion whether the abo

exclusion of pregnancy and childbirth as a disability under

the long-term salary continuation plan would be in viol.

tion of Title VII of the Civil Rights Act of 1964.

“In a recent opinion letter regarding pregnancy, we

have stated, “The Commission policy in this area does not

seek to compare an employer's treatment of illness or in.

jury with his treatment of maternity since maternity is a

temporary disability unique to the female sex and more or

less to be anticipated during the working life of mos

women employees.” Therefore, it is our opinion that ac-

cording to the facts stated above, a company’s group.

insurance program which covers hospital and medical ex-

penses for the delivery of employees’ children, but excludes

from its long-term salary continuation program those dis-

abilities which result from pregnancy and childbirth would

not be in violation of Title VII.” (December 9, 1966, as

reported in CCH Employment Practices, 12-21-66, para

graph 17, 334-44) (emphasis supplied )"*

Within sixteen months after the enactment of Title VII, then,

the Commission repeatedly advised employers that they need

not “provide the same fringe benefits for pregnancy as [they

provided] for illness . . .” and that the Commission did not

require comparable treatment for illness and pregnancy.

this position through 1969. On June 19, 1969, a representative

14. The record in Gilbert v. General Electric Company, Cw

Action No. 142-72-R, DCED Va. reveals: (1) that the Com

mission discussed this policy and various alternatives before issuing

this and other opinion letters, (pages 566-567); Ne je

continuation, sick pay, hospitalization and any other benefit

in the case of absence due to illness (page 563); (3) the com

solely by the employer. (page 564). This nation of Gc a

or :

pace Ro aeiodc A cached hosel. =

of the Commission announced that the Commission “views

jregnancy as a temporary disability, and has not to date equated

iit with sickness.”

The Commission then ruled that an employer may grant

imaternity leave without pay even though it provided pay for

sick leaves.'® .

“The Commission’s consistency came to an abrupt halt on

(April 5, 1972. Then, for the first time the Commission de-

(dared in an opinion guideline that pregnancy and illness were

ithe same after all for the purposes of an employer’s disability

jpolicy."* The 1972 opinion, of course, has not been consistently

‘applied for a long period of time because it is only the most

igecent Commission view on the subject and because it is totally

‘and remarkably inconsistent with prior opinions issued over the

Applying the criteria of consistent application and contem-

15. CCH, New Developments, Paragraph 8804 E. E. O. C.

Discusses Sex Discrimination and Fringe Benefits Under

16. Whether in a letter or reported investi-

gation of a specific charge, the "s statements and views

are merely its opinions concerning inter alia whether con-

report contains the

“reasonable cause” does or docs not exist to believe

duten te ° While guideline i pecneumien a

a is the expression of a

craton by the imintatoron the meaning of the ae

& reported states merely that based on the facts then

present in that case there is or is not reasonable cause to believe

that the Act has been violated. Arguments or reasons advanced as the

case progresses can alter that and it is of little guidance

waless a subsequent case is “on all fours.” Thus, while the

etna soe one Seen’ plenaaly ‘ngehnt the Com

1972 opinion, these arguments, here and else-

where, may equally to any investigation reports that may

poranecous construction, the answer is, “none.” Moreover, the

ee ee ee

are applied.

2. Was the 1972 Opinion Issued with the Evident Thoughtinines

That Marks Agency Expertise?

There is no evidence that the new 1972 opinion was form.

lated with consideration for alternatives or concern for ramif-

cations. Moreover, when the Commission, after several year

of consistently applying the Act, abruptly changed its interpre.

tation and consequent application of the Act, it must prow

clearly and convincingly that its new interpretation is justified

by a change in Congressional policy, or by new facts not pre-

viously in existence.'* Only if it meets this explicit proof burden

is its new opinion entitled to any judicial consideration. The

Commission has offered no such proof here.’* Indeed; is

astonishing and erratic shift belies its obvious claim of expertise.

This much, then is now clear. In determining whether to

defer or not and in evaluating the weight to give an agency's

opinion as to the meaning of a statute, the courts commonly

consider a variety of factors. When the Commission’s 1972

opinion concerning fringe benefits and maternity or pregnancy

is viewed in light of these factors, it is clear that this opinion

is entitled to neither weight nor deference.

After promulgating the challenged guideline the Commission

apparently hoped to gain quick judicial approval under the

authority of Griggs v. Duke Power Company, 401 U. S. 4%

(1971). However, Griggs is distinguishable and indeed, sup

ports the view that the guideline in question here is entitled

to no weight. For one thing when Griggs was decided the

Commission did not have prosecutorial powers. For another,

17. Newmon v. Delta Air Lines, Inc., 7 F. E. P. Cases 26 (USDC

ND Ga., 1973). There, the court held that the denial of

ment benefits to employees on maternity leave did not”

Title VII.

18. Newmon v. Delta Air Lines, Inc., supra.

the statement by this Court in Griggs that agency guidelines

were entitled to “great deference”’* must not be overvalued,

bat rather should be confined to the facts of that case. As the

Sath Circuit in Espinoza v. seepage Nepbes supra

observed :

“In Griggs, the Court found that ‘(s)ince the Act and its

« legislative history support the Commission’s construction,

"this affords good reason to treat the guidelines as express-

__ ing the will of Congress.’ 401 U. S. at 434. Moreover, in

‘that case the Court made an independent analysis of the

pertinent legislative history and decided that ‘the conclu-

sion is inescapable that the E. E. O. C.’s construction .

comports with Congressional intent.’ 401 U. S. at 436"

Here, unlike Griggs, as will be demonstrated infra in part II, A

there is no evidence whatever that Congress intended an em-

ployer to provide fringe benefits for pregnancy on the same

terms as he provides benefits for illness or to treat these distinct

conditions in the same manner.”

- at 433-434.

v. Farah Manufacturing Co., 462 F. 2d 1331

(cA, 1972).

“2. There was little or no legislative history on sex discrimina-

ton. Newmon v. Delta Air Lines, Inc., supra.

AN EMPLOYER NEED NOT PROVIDE FRINGE BENEFITS

FOR MATERNITY OR CONDITIONS RELATED TO PREG.

NANCY ON THE SAME TERMS AS HE PROVIDES THESE

BENEFITS FOR ILLNESS OR INJURY.

A. Congress Did Not Intend to Require That Employers Pre

vide Fringe Benefits for Pregnancy and Maternity im the

Same Manner That These Benefits Are Provided for l-

mess or Injury.

In considering Congressional purpose or intent here, it is

well to begin by examining the function of the E. E. O. C. and

its approach to fringe benefits and maternity. The E. E. 0.C.

is the agency charged by Congress with the administration,

interpretation and enforcement of Title VII of the 1964 Civil

Rights Act. It can logically be presumed, therefore, that Con-

gress was well informed as to the interpretations its Commission

was applying to Title VII, particularly during early stages of

the Commission’s existence. Because the Commission con-

sistently and explicitly stated for several years since the enact-

ment of Title VII that employers were not required to provide

the same fringe benefits for pregnancy as they provide for illness

or to treat these distinct conditions in the same manner, Con-

gressional awareness of this interpretation can be legally pre-

sumed.” Despite being aware that the Commission did not

seek to compare an employer's treatment of pregnancy with his

treatment of illness or injury, Congress did nothing to override

the Commission’s interpretation and its consequent application

of that part of Title VII. Congress did not by statutory amend

22. Congress has expressly provided that an em reliance

a ee See

defense in on. E. E..O. C proceeding. Erroneous interpretations i

raised as valid defenses to EO. C. proceedings Fame Tia

frustrate the effective implementation of the Act. us, it is read

apparent that Congress intended to be informed of the Com

mission’s interpretations. (42 U. S. C. 12b (1970).) >

ment, or otherwise seck to amend or to modify the Commis-

Had Congress intended to require an employer to treat preg-

sancy and illness alike when devising or applying a personnel

maternity policy, it had ample opportunity to manifest this

tent in 1972 when it enacted a number of amendments to the

Givi Rights Act of 1964. In a parallel situation involving

teligion, Congress required an employer to accommodate his

work schedules and employment policies to the individual reli-

gious practices of his employees. This occurred when Congress

reacted to the Fifth Circuit’s decision in Dewey v. Reynolds

Metal Co.* There, the court was faced with a Commission

guideline that required an employer accommodate his business

requirements to the religious beliefs of his individual employees

or be-held in violation of Title VII. Pursuant to this guideline,

memployee, Dewey, charged that his employer discharged him

for refusing, because of his religious beliefs, to arrange for a

replacement to perform Sunday overtime work. The court held;

« . “The legislative history of the Act expresses a clear Con-

. gressional intent to inhibit only discrimination against an

_ individual because of his race, color, religion, sex or na-

_ tional origin. . . .

Nowhere in the legislative history of the Act do we find

any Congressional intent to coerce or compel one person

~ to accede to or accommodate the religious beliefs of an-

other. The requirement of accommodation to religious

- beliefs is contained only in the E. E. O. C. regulations

a our judgment are not consistent with the Act.”

An effect the court recognized that while the Act prohibited

employer from constructing his hiring, promotion or dis-

charge policies so as to discriminate because of religion, the

en ee OS peel pase

On te the religious practices—such as the manner

3S. 402 U. S. 689 (1971), 429 F. 2d 324 (CA 6, 1970).

of Sabbath worship—of his individual employees. Congres

recognized that the court’s interpretation was accurate becauy

it reacted by amending the Act in 1972 to require employes

to adjust their work schedules and personnel policies to a.

commodate the various religious practices of their employees

Because religion and sex are referred to in the 1964 Act in

a like manner, it is reasonable to assume that Congress ip

tended the Employer’s obligations in the area of sex discrimina.

tion tobe similar to those in the area of religious discrimi

nation. By the 1964 Act Congress intended neither that ap

employer accommodate his personnel policies to individul

religious practices nor that an employer pay maternity benefits

in the same manner as he provides benefits for illness or injury.

However though Congress in 1972 amended the 1964 Act

specifically enlarge an employer’s responsibility in the area of

religious discrimination, Congress did not enact an amendment

requiring an employer to treat pregnancy and illness alike and

to provide benefits for pregnancy on the same terms as he pro-

vides benefits for illness. This Congressional silence is even

more revealing when the following facts are considered:

1. Congress had ample precedent had it desired to require

an employer to treat pregnancy and illness in the same manner.

In 1968, considering the Railroad Unemployment Insurance

Act of 1946, Congress amended the definition of a day of sick-

ness in that Act to include with respect “to a female employee,

a calendar day on which because of pregnancy, miscarriage, or

the birth of a child (i) she is unable to work or (ii) working

would be injurious to her health.”

2. Congress had access to arbitrators’ decisions which for

two decades equated pregnancy and illness and required a

employer to apply the same benefit policies to both™ Ye

24. Middleton Board of Education, 56 LA 830 (1971); Nationa

Lead Co, 18 LA 528 (1952); Republic Steel Corp., 37 LA 36)

(1961).

despite these decisions Congress chose not to require that em-

ployers treat pregnancy and illness alike in fringe benefit

programs.

_ tis apparent, therefore, that had Congress desired to amend

the Civil Rights Act in 1972 or at any time to require em-

ployers to treat pregnancy and illness in a similar manner when

formulating or implementing benefit programs, Congress would

have enacted such an amendment. It enacted an amendment

in the area of religious discrimination, and the Railroad Unem-

ployment Insurance Act specifically treats maternity as a form

of illness. Congressional silence, then, must be taken to mean

that Congress has no intention in 1972 to require an employer,

when devising or implementing his employment policy, to equate

pregnancy and illness and to treat these distinct conditions in

the same manner with respect to fringe benefits, or related

matters.

The significance of Congressional intent is highlighted by this

Court’s recent decision in Espinoza v. Farah, supra. There, this

Court refused to equate discrimination based on citizenship with

the statutorily proscribed discrimination based on national origin,

since such an equation would contravene Congressional intent.

It follows that this Court should not require an employer to

treat the distinct conditions of pregnancy and illness alike when

constructing a benefit program since such a requirement would

B. The Commission Consistently Recognized That an Ex.

ployer Need Not Treat Pregnancy and Illness Alike Wha

Providing Benefits, and the Court May Rely on Thee

Precedental Guides When, As Here, the Commissie:

Without Persuasive Reason Departs from Its Own Pree.

dent.

After years of consistently saying that employers need ny

treat pregnancy and illness alike,» the Commission, in a dn

matic shift, equates pregnancy and illness for benefit policy

purposes. What evidence was offered by the Commission to

justify its turn about? The Commission did not hold public

hearings or invite public debate. It did not suggest that it sud-

denly devined a heretofore unnoticed Congressional intent. It

did not claim to have discovered the law. It simply pronounced

its guideline and will seek to win for it judicial approval so that

its newest opinion can be raised to the level of judicial fiat.

The amicus believes that the Commission’s departure from

its own precedent can be justified, if at all, only if the Commis

sion proves by persuasive evidence that this radical shift was

caused by very good reasons, e.g., a newly announced Congres:

sional purpose directly relating to the Commission’s new theory

or by facts that did not exist when the Commission pronounced

its earlier opinions. Because the Commission at no time has

demonstrated that such reasons exist, its departure from its own

precedent should not be countenanced by this Court, particu

larly when the Commission’s new opinion will cause substantial

changes in employer-employee relations including major rev-

sions in employer benefit programs.

Strong support for the amicus’ position is found in the Fourth

Circuit’s opinion of N. L. R. B. v. Quality Manufacturing Co”

and the amicus offers that court’s well reasoned opinion her

as a guide. .

26. See Section I, part D, supra.

27. 481 F. 2d 1018 (CA 4, 1973); Petition for Writ of Certions

now pending No. 73-765.

“Jn Quality, the National Labor Relations Board purporting

t interpret the Labor Act held for the first time in its history

tA .

jiat an employer violated that Act by discharging an employce

who insisted upon union representation at a meeting called by

the employer to investigate the employec’s conduct. The Court

the Board’s holding because it “departed from existing

“ _. never has it been thought, as the Board would hold

here, that {statutory] rights require an employer to permit

an employee to have a union representative present when-

ever the employee ‘has reasonable ground to fear that the

interview will adversely affect his continued employment

or even his working conditions.’ ”

The Court observed that the Board did not justify or support

ts “new theory” by a persuasive analysis of the Labor Act or

of legislative history, and concluded that the Board has no

power to “alter or rearrange employer-employee relations to

sit its very whim.” The parallel between Quality and this

cae is clear. Both in Quality and in this case, an agency

daiming to interpret its statute departed from its own precedent

without advancing persuasive reasons for doing so. In both

Quality and in this case, the new agency opinion will have con-

siderable impact on employer-employee relations. As did the

court in Quality this Court should also reject an agency's de-

parture from its own precedents when the agency advances no

cogent reasons to justify its shift.

While it is true that pregnancy and maternity are unique

females, it does not follow that an employer violates Title Vi

when he excludes those conditions or related conditions s

covered risks under his benefit or disability programs. Th

Objective of these programs is to provide the broadest coverage

and maximum benefits for as little cost to the employer or em.

ployees as possible. An employer without violating any law

should be able to formulate rules to promote this objective.

Based on study or information, an employer may determine that

the inclusion of a disease, such as heart disease, which happens

to affect both sexes, will result in excessive demands upon his

fund and therefore will require either an increase in contribe

tions by all participants or a reduction in benefits to all partici

pants. Under those circumstances, it is clear that the employer

is able to simply exclude heart disease as a covered risk without

violating any law. Similarly, based on experience, study or it

formation, for example, an employer may determine that th

inclusion of maternity or related conditions will result in excessive

demands on his fund or require increased contributions or

duced benefits.** Under these circumstances, an employer should

be able to exclude maternity and related conditions as covered

risks without being guilty of sex discrimination even though

the excluded conditions affect only one sex. His decision to

28. The Court of the State of California stated in Cla

v. California State Com., 166 C. A. 2d 326 (19:

that it is “common knowledge” that a condition from

site. gst

dude maternity and related conditions is fully consistent with

his desire to protect the fiscal integrity of his benefit program

snd to provide maximum benefits to all employees at the lowerest

cost. The employer should not, in such circumstances, be found

to have violated Title Vil.

2. Precedent Supports an Exclusion Which Is Related to the

Legitimate Objectives of 2 Program.

Though maternity benefits are excluded in order to enable

the benefit or insurance program to retain fiscal integrity and to

provide maximum benefits at the lowest cost, it is settled that

eaclusions or limitations based upon economic considerations are

valid and legitimate- O’Gorman and Young v. Hartford Insur-

awe Co., 282 U. S. 251 (1930); Borden's Co. v. Baldwin, 293

U.S. 194 (1934). In O'Gorman, a New Jersey statute regu-

lated and limited the amount of commission that could be paid

to fire insurance agents. This Court found that it was reasonable

to conclude that a high commission cost to an insurance com-

pany may result in high insurance premiums for customers or

in impairment of the financial stability of the insurance com-

pany, thereby defeating the objectives of fire insurance programs

to provide reliable coverage at reasonable rates. Here, it can

be reasonably said that the high cost of pregnancy benefits may

result, for example, in increased employee contributions to the

uployer’s benefit program or in impairment of the financial

sability of that program thereby defeating the program's

to provide maximum coverage at reasonable rates.

This Court permitted the State to limit commissions in order to

further the obectives of the insurance programs. This Court,

by analogy, should permit employers to limit or eliminate the

ost me Peptnacy beaelits in order to further the objectives of

, if the cost of prostate operations increased, an

n aici es ‘athe ‘s- Gaihaide thle btinlldal ose: cect

BG Aa fasts wnt hats ec

benefit program, without being guilty of unlawful sex discrim.

ination. It is overly simplistic to conclude that by excluding ,

condition occurring to only one sex from his benefit program a)

employer without more unlawfully discriminates against thy

sex. Such a conclusion overlooks the rational practical judg.

ments that an employer must make if he is to maintain th

objectives of his program and automatically equates an em.

ployers’ attempt to construct a comprehensive benefit program

at,a minimal cost to purposeful discrimination against a grow

or a Class.

Not only does precedent support the validity of exclusion

based upon economic considerations, but also authorities de-

ciding issues arising under Titles VI and VII are in accord with

the amicus’ position.

On analysis, Griggs v. Duke Power Co., 401 U. S. 424

(1971), while frequently cited by plaintiffs in Title VII pro

ceedings, is in accord with the positions herein asserted. There,

the employer required as a condition of employment that

applicants have a high school education or that they pass a

standardized general intelligence test. These requirements oper-

ated to disqualify Blacks at a substantially higher rate than

white applicants. Because these requirements were not shown

to be related to successful performance of the job for which the

applicants were being considered, this Court held that the em-

ployer violated Title VII by maintaining these requirements,

even though the employer did not intend to discriminate against

Blacks. This Court stated that, “If an employer practice which

operates to exclude Blacks cannot be shown to be related to

job performance, the practice is prohibited.” p. 431.

While this Court in Griggs found that the requirements were

unrelated to measuring job performance, and, therefore, dit

criminatory, this Court stated that nothing in the Act prevests

an employer from using tests which relate to job performance

and employers may require applicants to be fit for the job.

—

in Jefferson v. Hackney,” this Court amplified and interpreted

this aspect of Griggs. This Court stated, at 549:

“We have, however, upheld the findings of nondiscrim-

inatory purpose in the percentage reductions used by Texas,

and have concluded that the variation in percentages is

rationally related to the purpose of the separate welfare

programs. The Court’s decision in Griggs v. Duke Power

Co., 401 U. S. 424 (1971), is therefore inapposite. In

Griggs, the employment tests having racially discriminatory

effects were found not to be job related, and for that

reason were impermissible under the specific language of

Title VII of the Civil Rights Act. Since the Texas procedure

challenged here is related to the purposes of the welfare

program, it is not proscribed by Title VI simply because of

the variances in the racial composition of different cate-

gorical programs.” (Emphasis supplied)

In both Griggs and Jefferson the challenged procedures had

racially discriminatory effects. The job testing procedure in

Griggs violated Title VII because it was not related to job

performance. In Jefferson the differences in benefit payments

did not violate Title VI because it could be reasonably said

that these differences in payment were related to the legitimate

purposes of the welfare program.

29. 406 U.S. 535 (1972). Jefferson involved a state’s determina-

tion to allocate a fixed pool of welfare money by paying AFDC

benefits at 75% of need while paying other insurance programs at a

higher percentage, e.g., old age assistance at 100% of need and aid

to blind at 95% of need. AFDC recipients Challenged this determina-

tion by alleging racial discrimination, since the proportion of AFDC

recipients who were black or Mexican-American was higher than

the proportion of aged, blind or disabled welfare recipients who fell

within these minority groups. This Court found no invidious dis-

crimination under the Fourteenth Amendment and said racial dis-

crimination was not proven. This Court did not substitute its judg-

ment for the pvamt ters someone tion vets best magienec tng: welfare

money, even t policy j ts were possible, because

the State’s conclusion that aged and infirm were less able to

bear the hardships of an inadequate living standard than were the

young AFDC recipients was reasonable.

In accord is Wallace v. Debron Corp., 368 F. Supp. 837 (DC

Mo., 1973) 6 F. E. P. Case 316.

In‘ accord with Jefferson and Griggs, then, where there is ,

reasonable basis to conclude that the exclusion of maternity

fringe benefits from employer benefit or insurance programs 5

related to the furtherance of the programs’ objectives, th

exclusion does not violate Title VII.

Moreover, the effect of the employment requirements »

Griggs was to deny a large segment of the population of a

North Carolina County employment opportunities. These r.

quirements caused discrimination and had a pervasive effec

against virtually the entire black population of that county

because they did not have the educational background to meet

the employer’s requirements. Therefore, in Griggs, this Coun

employed a stringent business necessity test. Here, the exclusion

from benefit programs of maternity benefits adversely affects

only a portion of one sex some of the time while at the sam

time having a salutary effect on members of that sex generally

as well as on all other employees. The exclusion here is the

result of a conscious choice to afford other benefits to both

women and men which would be otherwise unavailable. It must

be kept in mind that when an employer has only a finite amount

of money to expend .on coverage for employees of both sexes.

he must be accorded the right to determine how to utilize those

funds most effectively for the benefit of all. Exclusions based

solely on the variables of cost and comprehensiveness of

coverage cannot rationally and automatically be attributed to any

prohibited sex discrimination. For these reasons, the strict tes

utilized in Griggs cannot be applied here. Rather, where ther

is a reasonable basis to exclude maternity benefits from benefit

or insurance programs, the exclusion cannot violate Title VIL”

30. In addition, while Griggs involved discrimination betwees

different races, in the area of maternity fringe benefits there s »

such comparable competition between sexes and a policy excluding

maternity benefits does not, therefore, constitute illegal sex disci

ination any more than the hiring of one Black rather than anothe

would constitute illegal racial discrimination. 3

D. Judicial and Legislative Authorities Support the Position

That the Exclusion of Maternity from Benefit Plans Is Not

egal Sex Discrimination.

1. The Decision of This Court.

The desideratum of the policy underpinning the proscription

against sex discrimination is to assure that all persons who are

smilarly citcumstanced are treated alike regardless of their sex.

Consequently, constitutionally or statutorily prohibited sex dis-

crimination exists only when men and women who are otherwise

smilarly situated or in potential or actual competition are treated

unequally solely because of sex rather than because of individual

capabilities. As this Court has recognized:

“Section 703(a) of the Civil Rights Act of 1964 requires

that persons of like qualifications be given employment

opportunities irrespective of their sex. The Court of

Appeals therefore erred in reading this section as permitting

one hiring policy for women and another for men—each

having pre-school age children.” **

An analysis of Martin Marietta and those other cases cited

in footnote 31 yields the view that there can be no statutorily

31. Phillips v. Martin Marietta Corp., 400 U. S. 542, 544

(1971). This Court has reaffirmed this principle in Frontiero v.

t , 93 S. Ct. 1764 (1973) and in Reed v. Reed, 404 U. S.

71 (1971); these cases arose under the Fourteenth Amendment. In

Frontiero, a statute mandated “dissimilar treatment for men and

women who are . . . similarly situated”; it provided that a service

woman could not claim her husband as a dependent in order to obtain

increased benefits unless he was, in fact, dependent upon her for

service when compared with the treatment accorded to

service men was based solely upon the considerations of sex. Con-

» the statute contravened the Fourteenth Amendment. Simi-

, in Reed unconstitutional sex discrimination existed because a~~

Sate’s statute gave preference to the male when both a male and

afemale otherwise equally entitled applied to administer a decedent’s

or constitutionally proscribed sex discrimination in areas wher

the sexes are not similarly situated or in actual or potentid

competition. That is, only when a regulation may apply to bod

sexes will unequal treatment based soley upon sex violate the

Fourteenth Amendment or Title VII. Since pregnancy is unig

to women, reasonable regulations concerning benefits relating

to pregnancy and maternity affect only women; thus, thes

regulations do not affect women in an area where they ar

similarly situated with men. Consequently, deprivation of m

ternity benefits does not constitute the proscribed dissimila

treatment for men and women who are similarly circumstanced,

- and reasonable maternity regulations denying pregnancy and

maternity benefits do not constitute prohibited sex discrimine

tion and do not violate Title VII. |

Moreover, judicial opinions that have struck down discrimin.

tions based upon sex have been dealing with outmoded stereo

types based upon supposed differences between the sexes wher

those stereotypes produce distinct employment disadvantages

for one sex.*? .

Consistent with the reasoning in these opinions, the rea

purpose of the sex discrimination law is to outlaw discrimine

tion based upon outmoded sex stereotypes such as those mer

tioned in the administrative guidelines, including the chara-

terizations that women are not capable of aggressive sales

manship or that men are less able to assemble intricate equip-

ment.*

Unlike the so-called protective legislation that denied women

jobs in favor of men, an employer’s maternity regulation cor

cerning benefits provided in the case of pregnancy does no

operate in an area where men and women compete and dos

not create or perpetuate outmoded sex stereotypes. Accordingly,

32. E.g. Weeks v. Southern Bell Telephone and Telegraph Co,

408 F. 2d 228 (CA 5, 1969); Diaz v. Pan American World Ai-

ways, Inc., 442 F. 2d 385 (CA 5, 1971) cert. denied. 404 U. S. 990,

and cf. Boyce v. Safeway Stores, Inc., 351 F. Supp. 402 (DC DC.

1972).

33. 29 C. F. R., Section 1604.2.

_—

there can be no sex discrimination when these regulations

we implemented even if pursuant to these regulations the

employer treats pregnant employees differently than other em-

ployees.

_ 2. Legislative Authorities.

" ‘The legislative history of the proposed Equal Rights Amend-

ment™ is consistent with the view expressed in the foregoing

section concerning the construction of the term “sex discrimina-

tion” Thus, fourteen members of the House Committee on the

Judiciary expressed the following as their separate views on the

version of the Equal Rights Amendment ultimately approved by

Congress:

“The legal principle underlying the Equal Rights amend-

ment 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 result, the original resolution would not

prohibit reasonable classifications based on characteristics

that are unique to ont 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 charac-

teristic is found among members of both sexes, then under

the proposed amendment it is not the sex factor but the

individual factor which should be determinative.” *

It follows that if a physical characteristic such as the capabil-

ity to bear children is unique to one sex, the proposed Equal

34. The proposed amendment provides:

Section 1. Equality of rights under the law shall not 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

atticle by appropriate legislation.

Section 3. This Amendment shall take effect two years after

the date of ratification.

. 35. H.R. Rep. No. 92-359, 92nd Cong., Ist Sess. 7 (1971).

Rights Amendment does not prohibit legislation which regulates

or applies to that unique characteristic, since the regulatiog

could not deny equal rights to the sex not possessing this charac.

teristic. Conversely, only when a characteristic is found i,

“members of both sexes, a regulation must not make determin.

tions or classifications based on sex or sex stereotypes but iz

stead must consider the individual capability or classification

It is thus undisputable that the statutory prohibition againg

sex discrimination does not embrace an employer's regulation

which denies pregnancy and maternity benefits to female em

ployees where this regulation is rationally related to the objective

of the employer’s benefit plan.

Ill.

THE STATE STATUTE EXCLUDING MATERNITY BENE.

FITS FROM AN INSURANCE PROGRAM DOES NOI

VIOLATE THE EQUAL PROTECTION CLAUSE.

A regulation is measured against the Fourteenth Amendment

when it creates a classification of individuals and then treat

the individuals in this classification differently than other per-

sons are treated. However, as Justice Frankfurter observed,

“classification is inherent in legislation”; the Equal Protection

Clause has not forbidden it.** Consistent with these observ

tions, this Court has stated that the Equal Protection Claus

does not forbid all statutory classification or discrimination, but

only that discrimination that can be called arbitrary or invid-

ous.** These observations were amplified ‘by the illuminating

discussion of Chief Justice Burger in Reed v. Reed, supra

There, a state statute gave mandatory preference for the mak

when both a male and a female otherwise equally entitled ap

36. Morey v. Doud, 354 U. S. 457, 472 (1957).

37. “The Equal Protection Clause goes no further than the #

vidious discrimination.” Williamson v. Lee Optical Co., 348 U.$

483, 489 (1955); Morey v. Doud, supra; Lindsley v. Natond

Carbonic Gas Co., 220 U. S. 61.

_ °

plied for letters of administration of a decedent's estate. The

_ Chief Justice observed:

“{Tjhis Court consistently recognized that the Fourteenth

Amendment does not deny to States the power to treat

different classes of persons in different ways. (citations

omitted) The Equal Protection Clause of that amendment

does, however, deny to States the power to legislate that

different treatment be accorded to persons placed by a

statute into different classes on the basis of criteria wholly

unrelated to the objective of the statute. A classification

‘must be reasonable, not arbitrary, and must rest upon some

of difference having a fair and substantial relation

to the object of the legislation, so that all persons similarly

circumstanced are treated alike . ”” at 75-76.*

Because this Court has interpreted the Equal Protection

Clause as proscribing only arbitrary and invidious statutory

discrimination, this Court has developed tests to determine

whether or not a regulation creates an arbitrary or invidious

discrimination; these tests have been called the “rational basis”

or “compelling state interest” tests. >

38. The lower courts, too, have recognized that legislative and

administrative enactments may treat different classes of persons

in different ways without offending the Equal Protection Clause.

In Williams v. McNair, 316 F. Supp. 134, 136 (DC DC, 1970),

airmed 401 U. S. 951, the Court stated:

ee Cee: oe ee ee hen:

not require identity of treatment for all citizens,

a state, by Bias gooey ~ Bi yennia

A. This Court Has Utilized the Rational Basis Test and 4

Compelling State Interest Test to Determine Whether »

Not the Equal Protection Clause Proscribes a Statetey

Classification and Discrimination.

The rational basis test has been generally employed when ths

Court has looked to the Equal Protection Clause in

the constitutionality of a state’s regulation. Under this standari

of review, a state legislature is accorded considerable discretion

in enacting regulations and is presumed to have acted witha

its_ constitutional power. A “legislative classification must k

sustained unless it is ‘patently arbitrary’ and bears no ration

relationship to a legitimate governmental interest.”™ Ty

compelling state interest test, considered by this Court to

an exception to the usual standard of review expressed in th

rational basis test, has been utilized by this Court only to review

legislative enactments that abridged fundamental constitution

rights* or that involved classifications that can be labeled »

“suspect”.*’ This standard of review does not accord to legislatir

39. Frontiero v. Richardson, supra, 1768 (1973); Lindsley ¥.

National Carbonic Gas Co., supra, at 78-79; Rapid Transit Corp. v.

New York, 303 U. S. 573 (1938); McGowan v. Maryland, 366 U.S

420, 425 (1960).

40. San Antonio Independent School District v. Honea

Ct. 1278 (1973). There, this Court defined a a

as a right that is “explicitly or implicitly guaranteed by the

tion.” In the earlier case of Shapiro v. Thompson, supra, Juste

Stewart’s observations are consistent with those of the court i

Rodriguez:

“The Court today does not ‘pick out particular human activities,

characterize them as “fundamental,” and give them Beer

tection .. .” To the contrary, the Court simply s

it must, an established constitutional right, and to tht

ight no less protection than the Constitution i pede

394 U. S., at 642. (Emphasis from original.)

41. Frontiero v. Richardson, supra (1973); Shapero v. Thomp

son, 394 U. S. 618 (1969); McLaughlin v. Florida, 379 U. $, 1#

(1964); Graham v. Richardson, 403 U. S. 365 (1971); Kea

v. United States, 323 U. S. 214, 216 (1944). These cases tad

that when a statute creates a classification that is based upon "s

jedgments the usual presumption of validity and requires that

the state rather than the complainants justify discrimination

found in the enactment by showing that a compelling state need

is promoted by this discrimination.”

B. The Statute Excluding Maternity Benefits from the Benefit

Program Does Not Violate the Equal Protection Clause

of the Fourteenth Amendment.

Whether or not sex is a suspect classification, the statute

requiring that maternity benefits be excluded from the benefit

program does not create a classification based upon sex. Dis-

cimination based upon a sex classification can occur only when

persons similarly circumstanced are treated unequally based

solely upon sex. See arguments presented supra in part Il, D;

Reed ¥. Reed, supra; Frontiero v. Richardson, supra; Phillips v.

Marietta supra. Regulations concerned with physical charac-

teristics unique to one sex, such as child-bearing do not contra-

vene either the Constitution or Title VII.

This had been recognized by the E. E. O. C. for several years,

and has been recently recognized by leading proponents of the

proposed Equal Rights Amendment to the Constitution: .

“Like private action, governmental action dealing with a

physical characteristic unique to one sex would not be

affected by the equal rights amendment. Where a law deals

or contribute t0 society. Frontiero v. Richardson supra, 1770.

42. Frontiero v. Richardson, supra; Shapero v. Thompson,

supra; McLaughlin v. Florida, supra; Graham v. Richardson,

spre; Korematsu v. United States, supra.

with a physical characteristic unique to one sex,

between the sexes could not be achieved, for such a ly

could not apply in practice to both sexes. Therefore, th

equal rights amendment would not affect laws dealing wig

a physical characteristic unique to one sex, such as lay

governing childbearing, sperm donation, or criminal ag

capable of being pe mitted by members of only one sex”

(Hearings before Subcommittee No. 4 of the Committee

the Judiciary, House of Representativés, 92nd Cong, Ig

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

916 and Related Bills 40 (1971).) ;

Furthermore, even if sex is to be considered to be a suspet

classification because it is an immutable characteristic determined

solely by the accident of birth and because it bears no relation »

ability to perform or contribute to society,** pregnancy, unlike

sex, is not an immutable characteristic and it cannot be said that

pregnancy bears no relation to ability to perform or to contribute

to society. Consequently, following the reasoning in Frontien

it is clear that pregnancy cannot be a suspect classification eves

though sex, race, and national origin may be.

The basis of the holding in Frontiero is a further reason

distinguish that case from the instant case. In Frontiero, this

Court added:

“... any statutory scheme which draws a sharp line between

the sexes, solely for the purpose of achieving administrativ

convenience, necessarily commands ‘dissimilar treatment

for men and women who are . . . similarly situated,’ and

therefore involves the ‘very kind of arbitrary legislative

choice forbidden by the [Constitution] . . .” We therefor .

conclude that, by according differential treatment to mak

and female members of the uniformed services for the sok

purpose of achieving administrative convenience, the chal-

lenged statutes violate the Due Process clause of the Fifth

Amendment in so far as they require a female member t0

prove the dependency of her husband.” (at 1772.)

43. Where the sole basis for a classification created by a statute

was the sex of the individual involved, four Justices of.this Court

found the classification inherently suspect and subjected it to cox

scrutiny. Frontiero v. Richardson, supra.

— .

ie ca

Under the rationale of Fronticro, then, a regulation that treats

mn and women differently, would violate the Fourteenth

Amendment only if it were maintained for the sole purpose of

xhieving administrative convenience. In the instant case, not

only is the classification created by the exclusion of maternity

benefits not sex-based or suspect, but as a further distinction

tetween this case and Frontiero, the purpose of the exclusion is

not administrative convenience. Rather, the main purpose for

the exclusion is to preserve the solvency of the benefit program

3s discussed by appellant in detail. Consequently, because

siministrative convenience is not the purpose of the statutory

exclusion of maternity benefits, following Frontiero the statute

does not violate the Equal Protection Clause.

Because the Statute does not create a suspect classification, the

compelling interest test can be utilized to review the constitu-

tionality of the statute which excludes maternity benefits from

disability insurance programs only if that exclusion abridges a

fundamental constitutional right.

2. The Exclusion of Maternity Benefits Does Not Abridge

Fundamental Constitutional Rights.

This Court in rejecting the opportunity to-create “substantive

constitutional rights in the name of guaranteeing equal protection

of the laws [,]” has stated that the key to discovering whether a

~ tight is “fundamental” lies not in its social significance but rather

in determining whether the right is explicitly or implicitly guaran-

teed by the Constitution.“

It is difficult to imagine what fundamental right is abridged by

the State’s regulation excluding maternity benefits from its dis-

ability insurance program. If the right to bear children is a

fundamental right it is in no way abridged by the State’s regula-

tion. Women bear children every moment without any hope of

receiving maternity benefits from any source. Nor is there any

44. San Antonio Independent School District v. Rodriguez,

supra, at 1297.

interference with the right to employment if that right is cog

sidered to be fundamental.*

3. The Statute Denying Maternity Benefits Under the State Bes.

fit Program Does Not Violate the Equal Protection Cy

When the Traditional or Reasonable Basis Standard of Revie

Is Employed to Evaluate Its Constitutionality.

The rational basis test employs three standards: first, a legit.

mate governmental purpose must be found to exist; second, th

classification created by the statute must be rationally related

and further this legitimate governmental interest; third, all pe-

sons within the class must be treated alike.**

The benefit program has an objective to provide the broadet

coverage and maximum benefits at the least cost to employes.

Maternity benefits are excluded because the State believes, based

upon study and deliberation that this exclusion is necessary f

45. In Dandridge v. Williams, supra, this Court recognized tha

the usual rational basis standard was to be employed when evalut-

ing the constitutionality of state legislation that restricted the avai-

ability of em t opportunities. This recognition indicates that

the right to t opportunities is not a fundamental constite

46. United States Department of Agriculture v. neste 938

Ct. 2821 (1973); F. S. Royster Guano Co. v. Virginia, 253 U.S

412 (1920); Frontiero v. Richardson, supra. :

the program is to remain solvent and meet its objectives. This

has been set forth in detail by the appellant. Both the desire to

keep the program solvent and the broader objective to provide

disability benefits are valid State objectives. Exclusion of mater-

nity benefits is necessary in the State’s reasonable judgment to

achieve those objectives. Consequently, it is clear that the State’s

regulation meets the standards of the traditional or reasonable

basis test and the classification created by the regulation does

not violate the Equal Protection Clause even though the regula-

tion results in different classes of persons being treated in dif-

ferent ways.

While California excludes maternity benefits from its benefit

program and while other states such as New Jersey and Rhode

Island limit maternity payments to a fixed period*’ this difference

merely reflects the individual judgment of the state legislatures.

Such legislative discretion has been respected by this Court.

“In the area of economics and social welfare, a State does

not violate the Equal Protection Clause merely because the

classifications made by its laws are imperfect. If the classi-

fication has some ‘reasonable basis,’ it does not offend the

Constitution simply because the classification ‘is not made

with mathematical nicety or because in practice it results, in

some inequality.’ Lindsley v. Natural Carbonic Gas Co.,

220 U. S. 61, 78. ‘The problems of government are prac-

tical ones and may justify, if they do not require, rough

accommodations—illogical, it may be, and unscientific.”

Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61,

69-70.”

Whether a state should require a fixed period for maternity

benefits or completely exclude maternity benefits from a benefit

program depends upon many variables such as population that

ae best known to the legislature of each state. An application

of the reasonable basis test by this Court when it determines the

constitutionality of a statute, such as that involved in this case,

47. Sammary of State Labor Laws, U. S. Department of Labor,

March, 1969.

will allow a state legislature to continue to exercise this discr.

tion in a manner calculated to maintain the fiscal integrity g

its benefit program and to achieve maximum benefit for all ix

citizens. However, application of the stricter standard of pp.

view may well foreclose any legislative discretion and by r.

quiring the state to pay maternity benefits in the same mann,

as it compensates for illness or injury drastically curtail bench

programs. Indeed, as the dissenting opinion of Williams, Ds

trict Judge, in the court below sets forth in detail, Califomix;

benefit program would be in jeopardy of insolvency if the Sur

could not exclude maternity benefits from this program.

order that a state may continue to provide the broadest insw.

ance coverage and maximum benefits within the limits of ;

reasonable employee contribution, this Court should apply the

rational basis test when it evaluates the constitutionality of

statutes such as the statute in the instant case. When this ts

is applied, the constitutionality of the statute in this cases

assured. **

CONCLUSION.

For the foregoing reasons, the judgment of the court below

should be reversed.

Respectfully submitted,

United States of America Suite 6800,

1615 H Street, N. W., 233 South Wacker Drive,

Washington, D. C. 20006, Chicago, Illinois 60684,

LAWRENCE D. EHRLICH,

‘Al

APPENDIX.

. Excerpts from the Official Transcript of Proceedings in Gilbert

y, General Electric Company, No. 142-72-R, United States

District Court for the Eastern District of Virginia:

[542] CHARLES DUNCAN was called as a witness by and on

behalf of the defendant and, having been first duly

sworn, was examined and testified on his oath as fol-

lows:

[549] Direct Examination by Mr. Strauss.

Q. Mr. Duncan, what is your occupation or profession?

A. Lam an attorney at law admitted to practice in the Dis-

trict of Columbia.

{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.

[551] Q. You were, were you not, at one time, employed by

the EEOC?

A. Yes, I was.

Q. And in what capacity were you so employed?

A. I was General Counsel of the Equal Employment Op-

portunity Commission.

Q. 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.

L 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. siiprfictrcayerrasthte: aecaleaaaaaanall

Q. In October, 1966?

A. That is correct.

* * * * Ps

[563] Q. Would you look at the last sentence, please, in te

November 15 letter?

A. Yes.

Q. Would you explain, if you can, what the term “fring

benefits” means as used in that sentence?

A. Yes. Fringe benefits would include wage continuation,

pay, pay in the nature of sick pay, hospitalization, any oth:

benefit like that that applied in the case of absence due to oth:

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 d&

ability policy, is that what this refers to?

A. No. I am trying to say that it was the Commission:

position that pregnancy could be treated differently from a med-

cal illness and that it was not necessary to make the same po

vision in the case of pregnancy as was made in the case o

medical illness, be [564] it under company policy or under vai-

ous sickness and health plans.

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

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 employ:

disability plan, benefit plan financed by both the employer ai

the employees.

Would the response set forth in the letter have been a

different had the letter been concerned with a disability best

plan sponsored by the employer alone?

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 con-

tributory 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.

s oe Ps * *

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

casion 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 were then familiar with the policies expressed in

such guidelines, that is the 1972 guidelines, concerning the

matter of disability insurance coverage and so-called pregnancy

and childbirth disabilities?

A. Yes.

Q. Now, in 1966 when the policy formulated in the letter

we have here was taking place, was there any discussion within

the Commission of a policy such as appears in the 1972 guide-

lines?

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

tion.

As I indicated earlier, the Commission policy [567] on this

pomt was extensively considered, various alternatives for treat-

ing this problem, how do you handle maternity leave, various

One of the alternatives that was discussed was, necessarily,

would have been to treat it as an illness-induced absence. So

Q. And rejected?

A. Well, the Commission’s policy was as these letters state.

Q. So that this may be clear, may have been evident, but

I presume then that when the so-called 1972 policy was dis-

cussed in connection with the 1966 formulation the presence

absence of legislative history was also discussed at the san,

time?

A. Iam sure it was. I don't specifically remember that.

* e * * = &

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.