# Amicus Curiae Brief — Geduldig v. Aiello

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0308%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1974
- **Citation:** 417 U.S. 484

## Text

TABLE OF CONTENTS

pi Fox Laive vo Fue Bur 4s Awict CURIAE IN
© OF THE APPELLEES ON BEHALF OF WOMEN’S
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 _.....................

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

II
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

Iv

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

2

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.

6
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.

7

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.

8

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

10

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
cS

11

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.”

ee

%* 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.”

12

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.”

_—_

18

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.

14

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.

15

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.

16

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.

17

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.

—

18

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.”

19

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.

21

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.

22

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.

© American College of Obstetricians and Gynecologists, Poliq
Statement on Pregnancy-Related Disabilities, March 2, 1974.

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

23

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.

24
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-

c

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

11

12

16

‘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 ...........---

18

31

i

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

iv

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

19

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.”
at

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).

20

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).

21

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

22

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.

23

“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
Pe

25

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

26

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.

4

28

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

29

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

30

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.

_—

31

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).

32

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.

_ °

33

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

34

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

35

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.

36

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.

fo

— .

\
ie ca
\

37

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.

38

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. :

39

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.

40

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—

p
A2
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?

A3

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-

A4

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 * * = &

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0308%3A11. Public record. Not legal advice.