Motion Amicus Curiae — Cleveland Bd. of Ed. v. LaFleur

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auc 6 1973 SUPREME CouRr, U. 5

Supreme Court of the United States

October Term, 1972

No, 72-777

CLEVELAND BOARD OF EDUCATION, et al.,

| Petitioners,

vs. os

; JO CAROL LAFLEUR, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR ‘THE SIXTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

and.

BRIEF AMICUS CURIAE IN SUPPORT OF

AFFIRMANCE.

ANDREW J. RuzicHo

DIANE R. Lirr

700 Seneca Towers

361 East Broad Street

Columbus, Ohio 43215

(614) 466-8887

Counsel for the International Association

of Official Human Rights Agencies

1625 K Street, N.W.

Suite 102

Washington, D. C. 20006

THE GATES LEGATL PUBLISHING CO., CLEVELAND, OHIO—TEL. (216) 621-5647

= 3 3

MOTION FOR LEAVE TO FILE BRIEF AMICUS

BIE piticteninccinapeminidinebicslinieiss Sols 1

BRIEF OF AMICUS CURIAE o.eocecccccccccccseoecoce a

Opinions Below .:..3..0....:..<ccsssssces , . 8

Jurisdictional Statement 20.0.0... sesepesters 3

Constitutional Provision Involved ..................-....... 4

Statute Involve o.oo ccccccecccccs ss. Mhssiasacdissacambacesiiecs 4

Question for TOT nn iii Necning eo 4

Statement of ‘the Case i cs ccccccscccsscceseeceeccoesc% 5

Summary of Argument .2......cccsccsncccccieecc 5

_Argument: ;

I. The Mandatory Maternity Leave Regulation of

II.

TABLE OF CONTENTS

the Cleveland Board of Education Discrim-

inates against Women Employees of the Board

in Violation of the Equal Protection Clause

of the Fourteenth Amendment to the United

.

States Constitution 220.0... ccccsccsssssssseeseses... 6

A. The Regulation Is Unconstitutional Under

the Traditional Reasonableness Standard ... 9

B. The Regulation Is Unconstitutional Under .

the Traditional Rational Basis Standard as

Applied in Rodriguez io ae "

The Mandatory Maternity Leave Regulation of

the Cleveland Board of Education Should Be :

Judged by the Strict Scrutiny Standard of Equal

Protection avundncodsesmstulibeaitieiestcitniers Hoc sdecci cd. 21 :

I

& A. The Regulation is a Sex-Based Classification

B. The Regulation Abridges Respondents’ Fun-

damental Constitutional and Civil Rights ....

C. No Compelling Governmental Interest Is

Served by Petitioners’ Regulation ................

III. Significant Authority Supports Respondents’

Position that Mandatory Maternity Leave Regu-

lations are Discriminatory .2........0.00....0..00.c0-c00000000-

TABLE OF AUTHORITIES

Cades

Atchison T. & S.F.R. Co. v. Matthews, 174 US, 96

NN ha Necs ses ech sintptcndaisnks noes da padk co sskind ouneimcdtandandoninchan

Awadallah v. New Milford Board of Education, N.J.

Dept. Law & Public Safety, Sept. 29, 1971 _..........

Blair v. New Milford Board of Education, No. E02ES-

5337 (Sup. Ct. Hackensack, N.J., Jan. 20, 1971) ........

Bolling v. Sharpe, 347 U.S. 497 (1954) ecccccccssessssseen 3

~ Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.

fan EI feebcdas BD RERAY SMR REC pecainee ee ao core ee hela

Bravo v. Board of Sducution of the City of Chicago,

APT PT AREA BE HS

21

26

32

35

40

34

345-F. Supp. 155. (N.D. Tl, 1972) -«.................,...- 18, 34, 38

Brown v. Board of Education, 347 U.S. 483° (1954) ....

Buckley v. Coyle Public School System, 476 F.2d 92

20 .

(10th Cir. 1973) | 18, 23, 88

III

Bullock v. Carter, 405 U.S. 134 ( BUTE) cccnditsmicicaal 8,11, 20

Butcher's Union v. Crescent City, 111 U.S. 746 (1884) . 27

Cerra v. East Stroudsburg Area High School District,

20D A.2d 277 (1973) ociaesceeccosessnccessscsesssncecteecsssvsceesovoesceee 38

Cohen v. Chesterfield County School District, 474 F.2d

B95 (4th Cir, 1978) eee eecccccsecssssssecssssouperesssssvesssssececeee 18, 38

Cooley v. Board of Education, Waterford Union High

School, Dept. Human Relations, Waterford, Wisc.,

PG 8 OTE asain tracsestt beat namaciinntisinisnailinisieisaosees 39

Dandridge v. Williams, 397 U.S. 471 CAPD)... <cocsocomroones 7,12

Dunn v. Blumstein, 405 U.S. 330 (1972 D ciiisanthcuinesinaed 8, 12, 20

Kisenstadt v. Baird, 405.U.S. 438 (1972) 0.000000. 29

F.S. Royster Guano v. Virginia, 253 U.S. 412 (1920) .... 6,9

Flo v. General Electric Co., 195 N.Y. 2d 652 (1959) ... 39

Frontiero v, Richardson, 93 S. Ct. 1764 (1973) ............

iicinitnlaiehaeds niin cd 5, 7, 8,9, 10, 11, 25, 26, 33, 36

Goesaert v. Cleary, 335 U.S. 464 ¢: } See ee 9,10, 11

Graham v. Richardson, 403 U.S. 365 (1971) 00... 7

Green v. Waterford Board of Education, 473 F.2d 629

MR SEs |) Me ees ae 11, 12, 18, 23, 38

Griggs v. Duke Power Co., 401 U.S. 424 (1971) ........... 37

- Griswold »v. Connecticut, 381 U.S. 478 (1965 | eee 28, 32, 34

Harper ». Virginia Board of Elections, 383 U.S. 663

CRIED: - Uihensnipesudathtimciemache Like ha tak hy Pe

Heath v. Westerville Board of Education, 345 F. Sigh.

Si. CD. Chie 0)°........2 16, 18-19, 34, 38

Holmes v. Danner, 191 F. Supp. 394 (M.D. Ga. 1961)... 3S

Hoyt v. Florida, 368 U.S. 57 (1961) 0000s 10

Karezewski v. Baltimore & Ohio R.R. Co., 274 F. Supp.

100. UD. Tl. MOY) ncn eh 9

LE Ea Ty NBS

EE EN INE I

IV

Kupezyk v. Westinghouse Electric Corp., Case No.

CSF-152-6-67, March 3, 1969 0.0.0.0... cece 39

LaFleur v. Cleveland Board of Education, 465 F.2d 1184

CORI Cab, TBTR) scents nircssasenncosnsnin sesticeeesseB, 23, 33, 38

Levy v. Louisiana, 391 U.S. 68 (1968) ooo. 7

Lindsley v. Natural Carbonic Gas Co., 220 US. 61

CREE) ciiscrtectsisinesdlgsssrvcthansinssagsossveneseeascansnsscionssedonesstnenevtes 9

Lochner v. New York, 198 U.S. 45 (1908) 20.00. 10

Loving v. Virginia, 388 U.S. 1 (1967) 20... 7, 24, 28

Mengelkoch v. Industrial Welfare Commission, 442

F.2d 1119 (9th Cir, 1971) occ ceeeeeeee 9, 10

Meyer v. Nebraska, 262 U.S. 390 (1922) .0 28

McGowan v. Maryland, 366 U.S. 420 (1960) ............... 7,9

McLaughlin v. Florida, 379 U.S. 184 (1964) 20000... 7, 24, 27

Middletown. Board of Education, 56 L.A. 830 (1971) .... 39

Muller v. Oregon, 208 U.S. 412 (1908) 202 jo ee. 9,10, 11

Parolisi v. Board of Examiners of City of New York,

55 Mise. 2d 546, 285 N.Y.S.2d 936 (Sup. Ct..1967) 16

Patterson Tavern & Grill Owner’s Association v. Haw-

thorne, 57 N.J. 180, 270 A.2d 638 (1970) 0.00... 10

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

Pocklington v. Duval County School Board, 345. F. Supp.

BB COE Fi BTR) spars ninenscsionaccinnsienvesasiscnntitesnes 19, 34, 38

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)

sisishali Ain iionscciaaicbeflnnainspsnaatatninbhadsnipinaej ds asdiaradontinasnsisiatnhtes 8, 11, 20

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

ie a sn aici taeda atl 5, 7, 8, 9, 10, 13, 18, 20, 25, 33

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

acannon al ceshicleniclnchehde ptclslbliicnrint hands 34

Sail’er Inn v. Kirby, 485 P.2d 529 (1971) 0.02... 9, 10, 25

Vv

San Antonio Independent School District v. Rodriguez,

93 S. Ct. 1278 (1973) ...u......cccccsccccesecessscssecscceees 11, 19, 20, 21

Schattman v. Texas Employment Commission, 459 F.2d

32 (Sth Cir, 1972) oo ccc clcceceeecesseseecseeeseeceveeveneees 23

Seidenberg v. McSorley’s Old Ale House, 317 F. Supp.

593 (S.D. N.Y. 1970) ooo occ cececccccecccsseescseceesecsesecseesseees 10

Shapiro v. Thompson, 394 U.S. 618 (1969) .......... 6, 7,31, 35

’ Sherbert v. Verner, 374 U.S. 399 (1963) 00... 29

Skinner v, Oklahoma, 316 U.S. 535 (1942) 0000... 7, 28

Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th

Cir, 1971) nec ceecscecessecsecsssseceesesececencoesesnesesecseseseesseess 22

Southgate Educational Association & Board of Educa-

tion of Southgate Community School District, AAA

Case No. 5439-0323071 (Aug. 3, 1971) 000000... 39

Stanley v. Illinois, 405 U.S. 645 (1972) oes 8, 14

State Division of Human Rights v. Board of Education

of Union Free School District, No. 22, Case Nos.

CS-21025-70, et seq. (June 29, 1971) 2000 38

Takahashi v. Fish & Game Commission, 334 U.S. 410

RN) igh sen estes se aces sy sean cepaneameasctriscncaoppideeenved Pisaacocacs 7

Tecumseh Products Co. v. Wisconsin Employment Re-

lations Board, 126 N.W.2d 520 (1959) 00000. 39

Truax v. Edmonds School District #15, Superior Ct.

Snohomish County, Washington, August, 1971, Dkt.

FE NOTOEG na caincen-ceecsnessqeecnsnssecestesnpndingsnsdvimparereotosoens’scest, _ 38

Truax v. Raich, 239 US. 31 1 0 t:) (> een 10, 27

United States v. Dege, 364 U.S. 51 (1960) oo. 10

United States v. Hayes International Corp., 415 F.2d

1038 (Sth Cir, 1969) occ cece cece ccecececeseeeeeeeeeee 31

Vlandis v. Kline, 93 S. Ct..2330 (1973) ooo cccccecceeceeeee 8

Weber v. Aetna Casualty & Surety Co., 406 US. 164

RD, a ccbeetssectalieaet ttn snads canst tscesisoicenemaocncceds 8, 11, 12, 20

RSENS eR Rn eI

v ; sy pL REE ITS EIR ALINS IORI Sd Sow Ses

vr i

Weeks v. Southern Bell. Tel. & Tel. Co., 408 F.2d 228

(5th Cir. 1969)... 34

Wieman v. Updegraff, 344 U.S. 183 (1952) 0... 28

Williams v. San Francisco Unified School District,

340 F. Supp. 438 (N.D. Cal. 1972) .......... ....-18, 19, 34, 38

Williamson v. Lee Optical Co., 348 U.S. 483 (1955)... 9

Yick Wo v. Hopkins, 118 U.S. 356 (1886) 2.

Constitutional Provisions

United States Constitution

. —_— -» 7

‘ Nees d et ‘ieee ai eidtak aan PE ee Pn tng Lh ce am SS Rad)

Pr ae so LG BA Soe er pee “3

4

Fourteenth Amendment 4,5, 6, 18, 28

Statutes

28 U.S.C. § 1254(1) jas 3

29 U.S.C. § 206(d) 37

42 U.S.C. § 1983 ; 4

42 U.S.C. § 2000e-2 22, 34; 36

Equal Employment Opportunity Act of 1972, P.L. 92-

261, 92nd Cong., H.R. 1746 36

Ohio Revise@ Code, Chapter 3319:

§ 3319.13 on 16

§ 3319.16 16

Regulations

3 CFR. § 399 ... seetivicinbesseidelgiedertiecnlnntonte ces eegis 37

29 C.F.R. § 1604.10(a) eseoneceecnsseseenserseesess 36

29 C.F.R. § 1604.10(b) ..... : 37

41 C.F.R. § 6620.3 (g) sieieene 37

$

ee Le ede oe, pL

Other Authorities

Background Facts on Women Workers, 1970, U.S. Dept.

of Labor, Women’s Butte oo 30

Comment, Sex Discrimination in Employment: An At-

tempt to Interpret Title VII of the Civil Rights

Act of 1964, 1968 Duke L.J. 671 23-24

110 Cong. Rec. 13169-72 (1964) 36_

Crozier, Constitutionality of Discrimination Based on

Sex, 15 B:U.L. Rev. 723 (1935) ....... 24

Curran, Equal Protection of the Law: Pregnant School

Teachers, 285 New ENGLAND J. Mp. 336 (1973) x...... 15, 34.

Developments in the Law—Equal Protection, 82 Harv.

Ee TRY, 1G08 CIGODY oi NS 7

Eastwood, The Double Standard of Justice: Women’s

Rights Under the Constitution, 5 Va. L. Rev. 281

(1971) .. a a4

Gunther, In Search of Evolving Doctrine on a Chang-

ing Court: A Model for a Newer Equal Protection,

86 Harv. L. Rev. 1 (1972) 8,12

Johnston & Knapp, Sex Discrimination Wy Law: A

Study in Judicial Perspective, 46 N.Y.U. L. Rev. 675

(1971) .. ase sagt bosoecesniicntias 24

CIP TR) a, ; 34

Note, 84 Harv. L. Rev. 1499 (1971) : 24

Note, Are Sex-Based Classifications Constitutionally

Suspect?, 66 Nw. U. L. REv, 481 2 2 y Eee AGUS 24

Note, Fair Employment—Is Pregnancy Alone a Suf-

ficent Reason for Dismissal of a Public Employee?,

Oe BU.L.. Mav. 196 078) oS 24

eat te et eat

va DRE PSS EAE IAMS,

VIII

Reich, The New Property, 73 YAue L. J. 733 (1964) .... 27

Testimony of Andre E. Hellegers, before the Federal

Communications Commission, Dec. 1, 1971. In the

Matter of Petitions filed by the E.E.O.C., et al.,

Docket No. 19143 15, 34

Wilks, Memorandum, Dept. of Labor, 1970 .................... 37

Women Workers Today, 1970, U.S. Dept. of Labor,

_...Women’s Bureau |

ee . EDOM INI DI I IE lg

Supreme Court of the United States

October Term, 1972

No. 72-777

CLEVELAND BOARD OF EDUCATION, et al.,

Petitioners,

vs.

JO CAROL LaFLEUR, et al.,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE SrxtH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF F

AMICUS CURIAE i

The International Association of Official Human

Rights Agencies respectfully moves, pursuant to Rule 42,

for leave to file the attached brief amicus curiae on behalf 5

of Respondents in this case. Consent of Respondents has

been granted; consent of Petitioners has been denied.

The International Association of Official Human

Rights Agencies (IAOHRA) is an association of state and

' local civil rights agencies engaged in identifying and elim-

inating discrimination on the basis of race, sex, religion,

and national origin in the areas of employment, housing,

education, and public accommodations. The 87 member

agencies and 500 constituent agencies of IAOHRA are

EE ot cet een ae ties

2

charged with protecting and advancing the cause of human

rights by administering and enforcing state and local anti-

discrimination laws. The issues raised in this proceeding

are similar to issues raised before state and local civil

rights agencies, and the decision rendered by this Court

will have substantial effect on pending and in futuro cases

before these agencies. Reversal of the decision below could

result in practices which perpetuate sex discrimination,

thereby affecting the enforcement responsibilities of state

and local civil rights agencies. Therefore, we respectfully

request that this motion for leave to file an amicus brief

be granted. Filed herewith is our brief as amicus curiae.

Respectfully submitted,

Anpbrew J. Ruzicno

Diane R; Lire

700 Seneca Towers

361 East Broad Street

Columbus, Ohio 43215

(614) 466-8887

Counsel for the International Association

of Official Human Rights Agencies

- 1625 K Street, N.W.

] Suite 102

Washington, D. C. 20006

3

Supreme Court of the United States

October Term, 1972

No, 72-777

CLEVELAND BOARD OF EDUCATION, et al.,

Petitioner,

V8.

JO CAROL LAFLEUR, et al.,

Respondents.

;

s

;

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j

4

gS a

On Writ or Certiorart To THe UNITED STATES

Court or AppEALS For THE SixtH CincuIT

BRIEF OF AMICUS CURIAE

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Sixth Circuit, reversing the judgment of the United

States District Court for the Northern District of Ohio,

is reported in 465 F.2d 1184 (1972). The opinion of the

District Court is reported in 326 F. Supp. 1208 (N.D. Ohio, t

1971).

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals

for the Sixth Circuit was rendered on July 27, 1972. The

Cleveland Board of Education’s Motion for a Rehearing

en banc was denied on August 29, 1972. The Petition

for a Writ of Certiorari was filed on November 27, 1972

and granted on April 23, 1973. The jurisdiction of this

Court has been invoked pursuant to 28 U.S.C. § 1254(1).

WOR If ne " es aS

ee eee ae

4

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const. Amend. XIV, § 1 “. . .,. nor shall any

“State deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

STATUTE INVOLVED

Civil Rights Act of 1871, 42 U.S.C. § 1983:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceed-

ing for redress.

-_

QUESTION FOR REVIEW

Whether the Cleveland Board of Education's manda-

tory maternity leave regulation, which requires all preg-

nant teachers, regardless of ability to continue working,

to take an unpaid leave of absence no later than the

end of the fourth (4th) month of pregnancy and precludes

re-employment until the beginning of a new school se-

mester after the baby is at least three (3) months old,

constitutes sex discrimination in violation of the Equal

Protection Clause of the Fourteenth Amendment to the

United States Constitution.

The District Court answered this question, “No.” The

Court of Appeals reversed and answered, “Yes.” Amicus

¥

contends the decision of the Court of Appeals should be

affirmed.

>

STATEMENT OF THE CASE

Respondents’ statement of the case is hereby adopted.

SUMMARY OF ARGUMENT

The mandatory maternity leave regulation of the

Cleveland Board of Education, which forces all pregnant

teachers to take an unpaid leave of absence no later than

the end of the fourth (4th) month of pregnancy and forbids

re-employment with the Board until the commencement

of a new school semester after the child is at least three

(3) months old, is discrimination based upon sex and vio-

lates the Equal Protection Clause of the Fourteenth

Amendment.

The regulation, which treats pregnancy differently and

more harshly than any other physical condition, should not

withstand the reasonableness test of constitutionality be-

cause it is arbitrary and lacks any rational relation to a

legitimate purpose.

Furthermore, in light of this Court’s recent decisions

in Reed v. Reed, 404 U.S. 71 (1971) and‘Frontiero v. Rich-

ardson, 93 S. Ct. 1764 (1973), the regulation, which is based

on a suspect classification and interferes with fundamental

rights, should be judged under the strict scrutiny ‘test

of equal protection and measured by a standard of com-

pelling state interest rather than mere rational basis.

Overwhelming authority supports Respondents’ posi-

tion that, under any standard of review, the regulation vio-

lates the Equal Protection Clause of the Fourteenth Amend-

ment,

4

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PAMELA RAMI ROL MAES 8

ARGUMENT

I, THE MANDATORY MATERNITY LEAVE REG-

ULATION OF THE CLEVELAND BOARD OF

EDUCATION DISCRIMINATES AGAINST WO.-

MEN EMPLOYEES OF THE BOARD IN VIOLA-

-TION OF THE EQUAL PROTECTION CLAUSE

OF THE FOURTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

Introduction

Section’ 1 of the Fourteenth Amendment provides,

inter alia, that “no State shall ... deny to any person

within its jurisdiction the equal protection of the laws”.

This basic constitutional commandment “does not prevent

the states from resorting to classification for the purposes

of legislation,” but does require that “the classification

must be reasonable, not arbitrary, and must rest upon

some ground of difference having a fair and substantial

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

similarly circumstanced shall be treated alike.” F.S. Roy-

ster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). In

constitutionally permissible one. Shapiro v. Thompson

394 U.S. 618, 631 (1969).

’

In the past, this Court has utilized two distinct stan-

dards of review for determining whether a statute or regu-

lation violatés the equal protection clause. In cases in-

volving routine regulatory legislation, the test of reason-

able classification has been applied: Does the classifica-

tion bear a reasonable and just relation to a permissible

objective? Under this standard, if the purpose of the

statute or regulation is a permissible one and if the stat-

utory classification bears the required fair relationship

addition, the purpose of the legislation must itself be a ,

a?

:

to that purpose, the constitutional mandate will be held .

satisfied. McGowan v. Maryland, 366 U.S. 420 ( 1900);

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

In two types of cases, however, this Court has applied

a more stringent test. When the statute or rule affects

“fundamental rights or interests,” or when the statute

or rule classifies on a basis “inhérently suspect,” the Court

will subject the rule to “the most rigid scrutiny” and

has held that the classification, to be valid, must “pro-

mote a compelling governmental interest,” Shapiro v.

Thompson, 394 U.S. 618, 634 (1969) (emphasis in original),

or serve some “overriding” purpose, McLaughlin v. Florida, -

379 U.S. 184, 192 (1964). See also, Skinner v. Oklahoma,

316 U.S. 535, 541 (1942) (“strict scrutiny” required of

sterilization law); Harper v. Virginia Board of Elections,

383 U.S. 663, 760 (1966) (classifications which “invade

or restrain . . . fundamental rights and liberties” must be

“closely scrutinized and carefully confined”); Loving v. Vir-

ginia, 388 U.S. 1, 9 (1967) (statutes imposing’ racial classi-

fications bear a “heavy burden of justification”); Levy v.

‘Louisiana, 391 U.S. 68, 71 (1968) (court is “extremely

sensitive” to classifications which affect “basic civil

" rights”); Takahashi v. Fish and Game Commission, 334

US. 410 (1948); Graham v. Richardson, 403 U.S. 365, 372

(1971) (“heightened judicial solicitude” is required for

certain classes of persons); Frontiero v. Richardson, 93

S. Ct. 1764 (1973) (plurality opinion); Note, Developments

in the Law—Equal Protection, 82 Harv. L. Rev. 1065, 1076-

- 1132 (1969).

Recent decisions ef this Court support the proposi-

_ tion that even as to the more lenient test of “reasonable

classification,” the standard of inquiry and review is not

so deferential to legislative judgment as had been pre-

viously supposed. Reed v. Reed, 404 U.S. 71 (1971);

Stanley v. Illinois, 405 U.S.645 (1972). The Court appears

to be moving toward a third test—a reconciliation of the

traditional two-tier test—by posing certain fundamental

inquiries in all equal protection cases. This new inter-

mediate standard requires that the legislation be “closely

scrutinized,” and that the proponent of a challenged classi-

fication show that it is “necessary to the accomplishment

of legitimate [governmental] objectives.” Bullock v.

Carter, 405 U.S. 134, 144 (1972). See also, Weber v. Aetna

Casualty and Surety Co., 406 U.S. 164, 173 (1972); Police .

Department v. Mosley, 408 U.S. 92, 95 (1972); Reed v.

Reed, supra; Dunn v. Blumstein, 405 U.S. 330, 335 (1972);

Vlandis v. Kline, 93 S. Ct. 2330, 2339 (1973) (White, J

concurring); Gunther, In Search of Evolving Doctrine on

a Charging Court: A Model for A Newer Equal Protec-

tion, 86 Harv. L: Rev. 1, 17 (1972).

The mandatory maternity leave regulation of the -

Cleveland Board of Education, which requires female

teachers to resiign tkeir position no later than the end

of the fourth (4th) month of pregnancy and: forbids them

to return to teaching until the beginning of a regular

school semester after the child is at least three (3) months

ol& (A. 54-55), must be held unconstitutional when judged

by any of the ajpplicable standards—“strict scrutiny,” rea-

sonableness, or the evolving doctrine of “more ‘closely.

scrutinized.” Hlowever, of these tests, and in light of the

recent decision by this Court (Frontgro v. Richardson,

supra) it appears that the proper staridard of ‘review to

test the constituttionality of the Cleveland Board of Educa-

tion’s maternity policy should be “strict scrutiny” because

the regulation iin question classifies on the basis of sex,

and this Court ‘has recently held that “... . [c]lassifica-

tions based upom sex, like classifications based upon race,

alienage, and national origin, are inherently suspect and

must therefore be subjected to close judicial scrutiny.”

Frontiero v. Richardson, supra at 1768 (1973).

A. The Regulation Is Unconstitutional Under the

Traditional Reasonableness Standard.

The maternity regulation of the Cleveland Board of

Education must -be held unconstitutional even if only

judged by the traditional test of reasonableness. The rule

is not reasonable but arbitrary and has no “fair and sub-

stantial relation to the object of the legislation,” F.S,

Royster Guano Co. v. Virginia, supra. ’ Maternity leave

rules, based on. unwarranted assumptions and stereotyped

characterizations about women are an outdated: vestige

of a by-gone era when “laws which disabled women from

full participation in the political, business and economic

arenas . . . [were] . . . characterized as ‘protective’

and beneficial.” Sail’er Inn v. Kirby, 485 P.2d 529, 541

(1971). Such laws can no longer be explained on any

rational basis. Karezewski v. Baltimore and Ohio R.R. Co.,

274 F. Supp. 169 (N.D. Ill. 1967); Mengelkoch v. Industrial

Welfare Commission, 442 F.2d 1119 (9th Cir. 1971 }.

Historically, state statutory classifications have been

accorded great deference, perhap§ because most dealt with

economic regulation under a state’s police power. Mc-

Gowan v. Maryland, supra at 425; Lindsley v. Natural

Carbonic Gas Co., 220 U.S. 61 ( 1911); Atchison T. & S.F.R.

Co. v. Matthews, 174 U.S. 96 (1899 ); Williamson v. Lee

Optical, 348 U.S. 483 (1955). But the exercise of judicial

restraint has never blinded this Court to real inequalities

- enacted under the guise of reasonableness. Yick Wo v.

Hopkins, 118 U.S. 356 (1886).

Petitioners assert that decisions by the Court, prior

to Reed and Frontiero, permit the application of the tradi-

tional standar* JG revi“ in cases of sex discrimination.

Muller v. Oregon,’ *. - 412 (1908). Goesaert ». Cleary,

SEEN SEER NEARS jie SURE na aren: 3a) Pee tees

iia : ed Ts

ts

rea ggssagrsci

Pe

10

335 US. 464 (1948); Hoyt v. Florida, 368 U.S. 57 (1961)

(Petitioners’ Brief, pp. 31-33). In so doing, Petitioners

not only ignore the significance of Reed and Frontiero,

but also rest on precedent expressing a view of women

that this Court has called “offensive to the ethos of our

society.” U.S. v. Dege, 364 U.S. 51, 53 (1960). Muller

should be seen in its proper context: turn of the century

working conditions when women labored long hours in

sweatshop operation®. Decided just three years after Loch-

ner'v. New York, 198 U.S. 45 (1905), Muller was brought

by an employer challenging, the state’s police power to

legislate in the area of hours of labor and not by a woman

employee seeking equal treatment under law. This distinc-

tion has been forcefully made by the Court of Appeals

for the Ninth Circuit in Mengelkoch v. Industrial Welfare

Commission, 442 F.2d 1119, 1123 (1971).

Similarly Goesaert has lost what vitality it once had.

See Patterson Tavern & Grill Owner’s- Association v. Haw-

thorne, 57 N.J. 180, 270 A.2d 638 (1970); Seidenberg v.

McSorley’s Old Ale House, 317 F. Supp. 593 (S.D. N.Y.

1970); and, most significantly, Sail’er Inn v. Kirby, 5 Cal.

3d 1, 485 P.2d 529 (1971), followed in Frontiero v. Richard-

son, supra. The starting premise in Goesaert—that a state _

could deny all women opportunity for employment—is

questionable given the Court’s recognition of the impor-

tance of employment. See Truax v. Raich, 239 U.S. 31,

41 (1915) (right to work without discrimination on grounds

of race or nationality “is of the very essence of the personal

freedom and opportunity that is the purpose of the {14th

Amendment] to secure’).

_. The Court has never explicitly overruled these old

cases because the evolution of equal protection doctrine

impliedly has done so. See Reed v. Reed, supra; Frontiero

v. Richardson, supra. Reed and Frontiero should be seen as

|

= 1

repudiations of the Muller and Goesaert line of cases. Pe-

titioners rely on San Antonio Independent School District

v. Rodriguez, 93 S. Ct. 1278 (1973) to establish the tradi-

tional standard of review in the instant case so that they

can rely on the foregoing-“‘old” cases. Such an attempt

bespeaks Petitioners’ refusal to acknowledge the impor-

tance of Frontiero. Petitioners view Frontieto as only

_a “military” case and the case at bar as only an “educa-

tional policy” case, rather than seeing these cases for what

they are—instances of sex discrimination.

The maternity rule must certainly fail when judged

by the intermediate staridard requiring that legislation

be “closely scrutinized,” and that the proponent of the

challenged rule show that it is “necessary-to the accom-

plishment of legitimate [governmental] objectives.” Bul-

lock v. Carter, supra.

In recent decisions, this Court has avoided using ter-

minology which establishes a rigid dichotomy between

strict and minimal scrutiny. The Court has “narrowed

the linguistic gap between the two standards”, Green v.

Waterford Board. of Education, 473 F.2d 629, 633 (2nd

Cir. 1973), by posing certain fundamental inquiries ap-

plicable to “all” equal protection claims. In Weber v.

Aetna Casualty and Surety Co., supra at 173 (invalidating

a Louisiana workman’s compensation law that discrimi-

nated against dependent unacknowledged illegitimate chil-

dren), the Court declared that the “essential inquiry” in

all equal protection cases is “[i]nevitably a dual one:

What legitimate state interest does the classification pro-

mote? What fundamental personal rights might the clas-

sification endanger?” This inquiry was repeated in Po-

lice Department of Chicago v. Mosley, supra at 95 (ordi-

nance that differentiated bet&veen types of peaceful picket-

ing on the basis of subject matter held unconstitutional) :

a ie

EAN

BERL ENN ARI SA. AOR F

LPO BINT Es

12

“As in all equal protection cases, however, the crucial

question is whether there is an appropriate governmental

interest suitably furthered by the differential treatment.” ~~

Similarly, in Dunn v. Blumstein, supra at 335 (invalidating

a one year durational residency requirement for voting),

Mr. Justice Marshall elaborated the crucial question to

be asked in equal protection analysis by developing a

three-factor analysis applicable to all varieties of equal

protection cases which emphasized that equal protection

tests do not have the precision of mathematical formulas

but rather represent a ‘matter of degree.” Significantly,

his formulation of this analysis in the majority opinion

in Dunn reiterates the test he advocated in his dissent

in. Dandridge. Williams, 397 U.S. 471 (1970).

The standard of review established by the foregoing

cases indicates that this Court will no longer speculate as

to what legitimate state objectives may have been fur-

thered by a challenged classificatory scheme. Rather, it

will assess the legislative means in terms of whether the

purposes have substantial basis in fact, not merely con-

jecture. Even more significantly, “the Court’s definition

of what constitutes the necessary rational relationship be-

tween a classification and a legitimate governmental in-

terest seems to have become slightly, but perceptibly,

more rigorous.” Green v. Waterford, supra at 633. See

also, Weber v. Aetna Casualty & Surety Co., supra, at 175:

“the inferior classification of dependent unacknowledged

illegitimate bears . . . no significant relationship to those

recognized purposes . . . which workmen’s compensation

statutes commendably serve.” (Emphasis added)

The standard of more “closely scrutinized” review,

sometimes referred to as the “means-focused” rational

basis test (Gunther, supra), has been explicitly extended

to statutes which discriminate on the basis of sex, and

13

such classifications have been held invalid by this Court.

In Reed v. Reed, supra the Court held unconstitutional an

Idaho sex-based classification which gave mandatory

preference to men over women in the administration of

decedent's estates. Mr. Chief Justice Burger noted that

Idaho's stated purpose of reducing the probate court’s

workload by eliminating the need for a hearing in one

class of contests “is not without some legitimacy.” How-

ever, the Court found “crucial” the question of whether the

statute advanced the stated objective “in a manner con-

sistent with the command of the Equal Protection Clause.”

In holding that it did not, the Court said:

To give a mandatory preference to members of

either sex over members of the other, merely to ac-

complish the elimination of hearings on the merits,

is to make the very kind of arbitrary legislative

choice forbidden by the Equal Protection Clause of

the Fourteenth Amendment . . . Reed, supra at 76.

Petitioners have offered two reasons in support of

their argument that the maternity regulation is reasonable

and properly related to a legitimate purpose: 1) ensur-

ing that only “able-bodied” teachers are presiding over

classrooms, and 2) preventing administrative problems

which might occur in replacing teaching personnel who

take leave of absences (Petitioners’ Brief, p. 19).

The .facts and logic relied on by the school board to

justify the regulation have no basis in fact and are not

supported by reasoned analysis. Even assuming that

Petitioners’ administrative convenience rationale were

warranted, it is evident after Reed that such a justifica-

tion is not sufficient for permitting the sex-role stereotyp-

ing which exists in a mandatory maternity leave policy.

In point of fact, however, Petitioners’ asserted rationales

for its policy are unwarranted.

Rl i OAD are

-

e

14

In maintaining that the regulation ensures that only

“able-bodied” teachers preside over classrooms, Peti-

tioners make unsupportable assumptions. It is the man-

datory feature of the maternity leave regulation which

is being challenged by Respondent. No one questions that

a pregnant teacher who is advised by her physician to

take a leave of absence for health reasons should have

a right to do so. The crucial question is, how-

ever, whether a pregnant teacher may be forced to take

e a leave of absence after the fourth month of pregnancy

: : \y

even if her own doctor would permit her to continue work-

ing, and she desires to do so (A. 48-50, 72-73). Further,

the issue is whether this teacher should be forced to re-

main away from her job from eight months to over a

year after the birth of her child, thereby losing wages,

pension, insurance, and seniority rights.

As this Court has recognized, resort to group stereo-

type as a basis for legislative line-drawing is wholly at

odds with the principle of equality of individuals before

the law. In striking down an Illinois statute which man-

dated the presumption that an unwed father was not en- .

titled to the same custody rights of his natural children

as their natural mother, this Court stated that:

Procedure by presumption is always cheaper and

easier than individualized detérmination. But when,

as here, the procedure forecloses the determinative is-

sues of competence and care, when it explicitly dis-

dains present realities in deference to past formali- —

ties, it needlessly risks running roughshod over the

important interests of both parent and child. It

therefore cannot stand. Stanley v. Illinois, 405 U.S.

645 (1972).

The maternity regulation challenged in this case re-

| sorts to group.stereotyping by treating pregnancy on a

15

generic basis and imposing the same requirements on all

pregnant teachers regardless of their individual differ-

ences or abilities. Expert: medical opinion has established

that no two pregnancies are identical. Curran, Equal Pro-

tection of the Law: Pregnant School Teachers, 285 New

ENGLAND J. Mp. 336 (1971); Testimony of Andre E. Hell-

egers, M.D., In the Matter of Petitions filed by EEOC, et

al., Docket No. 19143, Federal Communications Commis-

sion (1971). Expert medical witnesses of both parties

in the instant case agreed that pregnancy required individ-

ualized treatment and no medical rule required all preg-

nant women to leave work several months prior to child-

birth (A. 91-93, 121, 124, 128, 148-149; 156). The rule in

question imposes disabilities upon an individual female

teacher which may far exceed any disabilities inherent

in her pregnancy. In considering a similar maternity

regulation, a United States District Court had this to Say:

It-is the very inflexibility of the Board’s policy which

casts a light of dubious constitutionality about its Teg-

ulations. Pregnancies, like law suits, are sui generis,

While there are certain general similarities between

each pregnancy, no two are entirely identical. While

it may be quite true that some women are incapaci-

tated by pregnancy and would be well advised to adopt

regimens less strenuous than those borne by school

teachers,,to say that this is true of all women is to

define that half of our population in stereotypical

terms and to deal with them artificially. Sexual ster-

eotypes are no less invidious than racial or religious

ones. Phillips v. Martin-Marietta Corporation, 400 U.S.

542, 91S. Ct. 496, 27 L. Ed. 2d 613 (1971); Sprogis v.

_United Air Lines, Inc., 444 F. 2d 1194 (7th Cir., 1971).

Any rule by an employer that seeks to deal with- all

pregnant employees in an identical fashion is dehu-

i |

pageants

CELERON IE IO

16

manizing to the individual women involved and is by

its very nature arbitrary and discriminatory. Heath v.

Westerville Board of Education, 345 F. Supp. 501, 505

(1972).

Nor are there any distinct characteristics of pregnancy

that warrant treating it as a special condition not entitled

’ to the benefits given other temporary medical conditions;

yet, the Board of Education has no mandatory leave policy

for any other temporary medical condition (A. 206-207).

Rather, other conditions are treated under the rubric “sick

leave” on an individual basis which considers the teacher’s

ability to function in the classroom’ (A. 179-180, 206).

Certainly a mere increase in weight and change in phys-

ical shape are not, by definition, disabilities which should

raise the presumption that a pregnant school teacher is

not able-bodied. See Parolisi v. Board of Examiners of

City of New York, 55 Misc. 2d 546, 285 N.Y.S.2d 936 (Sup.

Ct. 1967), holding that the dismissal of a teacher for obe-

sity was arbitrary since the condition did not impair her

ability to teach.

The maternity policy also bears no rational relation-

ship to Petitioners’ asserted justification of minimizing

administrative problems that might occur in replacing

pregnant teachers in the classroom (Petitioners’ Brief, pp.

5 1. The Cleveland Board of Education jis empowered by stat-

ute (Ohio Revised Code, Section 3319.13) to demand that an ill

or disabled teacher take a leave of absence. Teachers whose live-

lihood is threatened by unrequested and undesired leave may

present evidence of abflity to work at hearing conducted in ac-

cordance with basic procedural due process safeguards (Ohio

Revised’ Code, Section 3319.16). But when a teacher becomes

pregnant, no showing of incompetency is ntécessary to terminate

her employment. Indeed, her competency to teach is never ques-

tioned. Rather, Petitioners arbitrarily classify all women who have

reached their fifth month of pregnancy as being incapable of teach-

ing, force the teacher to take an extended unpaid leave, and label

the policy “maternity leave.”

17

11-12; A. 198-199). While continuity of instruction may

be an important value, a pregnant teacher who provides

the Board with a date for beginning her leave preserves

that value. A teacher who takes a leave of absence due to

a sudden illness disrupts the continuity of teaching even

more than a woman who takes a planned leave of absence

because of pregnancy. Moreover, where a teacher has a

serious, even terminal, illness or an operable illness that

will necessitate the teacher missing time from work, the

problems of finding a suitable replacement and arranging

for the continuity of classroom programs are the same for

the School Board as when a teacher is pregnant. Yet,

in such cases, unlike pregnancy, there are no regulations

requiring the teacher to leave five months before the op-

eration (A. 206-207). The teacher may “remain until

he can no longer function effectively in the classroom.

Any benefits of the challenged rule flow from the fact that

the school has advance notice of the teacher's departure—

not from the fact that. the rule requires such departure

after a certain month of- pregnancy (A. 206). The School

Board is more likely to have notice, and time to deal with

administrative problems when the teacher is pregnant

than when absence is caused by an accident or illness. The

fact that childbirth is a determinable event gives that ele-

ment of “predictability” that Petitioners might argue is

so necessary to their job of replacement. Indeed, the dis-

ruption of the educational process would be reduced, not

increased, if those teachers willing to work beyond four

months were permitted to do so. Strict application of

the maternity rule will often cause the very interruption

Petitioners contend it was designed to prevent. In the

case at bar, for example, Petitioners’ policy forced Re-

spondent to leave in the middle of the school year rather

than complete the semester with her class (A. 53).

re:

eRe tAng

18

In a case challenging a similar maternity regulation,

the United States District Court for the Northern District

of California considered both ,the problem of replacing

teachers and the problem of classroom disruption. The

court stated:

The District’s present administrative apparatus seems

entirely adequate to cope with such situations, par-

ticularly since the use of substitutes is a common and

widespread practice. Most onsets of illness, unlike

pregnancy, result in employee absences with far less

advance notice than is the case with pregnancy, and

such other illnesses may result in absences for longer

periods than are required for normal pregnancies.

It is for just such contingencies that the District has

made provision for a pool of qualified substitutes

available as temporary replacements on short notice.

Williams v. San Francisco Unified School District,

340 F. Supp. 438, 445 (N.D. Cal.1972)

Following its decision in Reed v. Reed, supra, this

Court should declare the mandatory maternity leave policy

of the Cleveland Board of Education unconstitutional in

light of the Fourteenth Amendment’s mandate of Equal

Protection. The United States Court of Appeals for the

Sixth Circuit, following Reed, reached this conclusion in

the opinion below. LaFleur v. Cleveland Board of Ed-

ucation, 465 F.2d 1184 (6th Cir. 1972). Similar results oc-

curred in the Court of Appeals for the Second Circuit

(Green v. Waterjord Board of Education, supra) and the

TentheCircuit (Buckley v. Coyle Public School System,

476 F.2d 92 (10th Cir. 1973)) Contra, Cohen v. Chester-

field County School District, 474 F.2d 395 (4th Cir. 1973).

Federal District Courts faced with this issue have also

concurred: Bravo v. Board of Education of the City of Chi-

cago, 345 F. Supp. 155 (N.D. Ill. 1972); Heatn v. Wester-

19

ville Board of Education, 345 F. Supp. 501, 505 (S.D. Ohio

1972); Williams », San Francisco Unified School District,

340 F. Supp. 438, 443 (N.D. Cal. 1972); Pocklington v. Du-

val County School Board, 345 F. Supp. 163 (M.D. Fla. 1972).

Petitioners’ rule has no rational basis in fact; it may

actually thwart the goal Petitioners assert they seek. The

mandatory leave policy for pregnant teachers must be

viewed for what it truly is, an anachronism premised on

sex discrimination, and nothing more (A. 173, 176).

B. The Regulation Is Unconstitutional Under the

Traditional Rational Basis Standard as Applied

in Rodriguez.

Petitioners assert that this Court’s recent decision

in San Antonio Independent School District v. Rodriguez,

93 S. Ct. 1278 (1973), requires that the traditional stand-

ard of review in equal protection cases be applied in de-

termining the constitutionality of their maternity regula-

tion because their regulation is “educational policy.”

Rocriguez can readily be be distinguished from the-case at

bar; but even if Petitioners’ argument that the maternity

rule in the instant case should be judged by the traditional

standard of review is accepted, the maternity regulation

would still be unconstitutional as it is arbitrary and bears

no rational relationship to a legitimate goal.

The issue in the instant case involves a classification

based on sex in the area of employment; Rodriguez, on

the other hand, involves the complex issues of taxation,

federalism, and educational policy. The cases are similar

only in that they both concern school systems

According to Petitioners, Rodriguez reverts to a mini-

mal scrutiny, “hands off,” standard of review, thereby

20

raising anew the problems inherent in the rigid two-tiered

equal protection analysis. Not only does this argument

construe Rodriguez simplistically; it ignores recent deci-

sions developing the rational “means-focused” test. Reed

v. Reed, supra; Bullock v. Carter, supra; Weber v. Aetna

Casualty and Surety Co., supra; Dunn v. Blumstein, supra;

Police Department of Chicago v. Mosley, supra.

This Court has not hesitated to decide equal protec-

tion issues raised in the field of education (e.g., Brown

v. Board of Education, 347 U.S. 483 (1954) ), but the Court

indicated it viewed Rodriguez as something different than

one more in a long line of education cases. It found

that in significant aspects the case was “sui generis” and

hence could not be “so neatly fitted into the conventional

mosaic of constitutional analysis under the Equal Protec-

tion Clause.” Rodriguez, supra at 1288. As Mr. Justice

Powell, writing for the majority, framed the issue:

This case represents far more than a challenge to

the manner in which Texas provides for the educa-

tion of its children. We have here nothing less than

a direct attack on the way in which Texas has chosen

to raise and disburse state and local tax revenues.

We are asked to condemn the State’s judgment in

conferring on political subdivisions the power to tax

local property to supply revenues for local interests.

In so doing, appellees would have the Court intrude

in an area in which it has traditionally deferred to

state legislatures. Rodriguez, supra, at 1300.

It has deferred in the past, said the Court, and should

continue to do so, because “the Justices of this Court

lack both the expertise and the familiarity with local prob-

lems so necessary to the making of wise decisions with.

respect to the raising and disposition of public revenues.”

Rodriguez, supra at 1301.

reset rece gtr seme

21

In addition to traditional deference for state fiscal

policies and the resulting implications for the concept of

federalism (Rodriguez, Supra at 1302), Rodriguez also in-

volved a unique issue of educationg] policy: the unsettled

and controversial question of whether there is any correla-

tion between educational expenditure and educational

quality. The correlation—or lack of it—is a matter of

considerable dispute among educators and also the basis

underlying virtually every legal issue in Rodriguez: there-

fore, the Court was especially unwilling to impose on the

State of Texas any constitutional restraints in this area

(Rodriguez, Supra at 1301-02).

The difficult questions of local taxation, fiscal plan-

ning, federalism, and education policy appropriately coun-

seled a more restrained standard of review in Rodriguez:

and although the instant case does present to this court

a legislative classification, it does not do so “in a Rodriguez

Situation.” (Petitioners’ Brief, p. 3).

II. THE MANDATORY MATERNITY LEAVE REG-

ULATION OF THE CLEVELAND BOARD OF

EDUCATION SHOULD BE JUDGED By THE

STRICT SCRUTINY STANDARD OF EQUAL

PROTECTION. ;

Yi

A. The Regulation Is a Sex-Based Classification.

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2

linked characteristic and it is clear that a rule based on

pregnancy is a sex-based rule. Chief Judge Brown of

the United States Court of Appeals for the Fifth Circuit

has best treated this issue:

The distinguishing factor seems to be motherhood.

. . . The question then arises: Is this sex-related?

To the simple query the answer is just as simple: No-

body—and this includes Judges, Solomonic and life-

tenured—has yet seen a male mother. A mother, to

oversimplify the simplest biology, must then be a Wo-

man. Phillips v. Martin-Marietta, 416 F.2d 1257, 1259

(Sth Cir. 1969) (C.J. Brown dissenting).

The Phillips case arose under Title VII of the 1964

Civil Rights Act (42 U.S.C. §§2000(e) et seq.). This

Court agreed with Chief Justice Brown and held that

a rule designating one hiring policy for women and a

different one for men, when both had pre-school age chil-

dren, violated Title VII. Phillips v. Martin-Marietta Cor-

poration, 400 U.S. 542 (1971). |

Neither can Petitioners logically argue that the ma-

ternity rule is not a sex-based classification because the

rule does not affect all women at any one time. Again,

it is clear that the rule affects women, and only women,

since the policy is based on a patently feminine condi-

tion, biologically possible only in the female sex. Sex is

thus a definitional element in employment disqualifica-

tion.

Nor does the: fact that the policy cannot apply

to men prevent it from being discriminatory. As the

Court df Appeals for the Seventh Circuit noted:.. “Dis-

crimination is not to be tolerated under the guise of phys-

ical properties possessed by one sex.” Sprogis v. United

Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971).

Pee EEE SRM al PRE ing ose “ - . . .

TMS eM ET LOIN ENE EPL I ee ah ae eg: bee ec cre Serene te

EEE ONE Ty

aS a sex. As stated by Judge Wisdom, dissenting in

Schattman v. Texas Employment Commission, 459 F.2d

32 (5th Cir, 1972), “Female employees are the only em-

ployees . . . who become Pregnant; it follows that they

are provisionally dismissed from work on account of their

Sex...” 459 F.2d at 42.

The Court below, in the instant case, noted: “Here,

too, we deal with a rule which is inherently based upon a

classification by sex. Male teachers are not subject to

pregnancy, but they are subject to many types of illnesses

and disabilities,” LaFleur vy. Cleveland Board of Educa-

tion, 465 F.2d 1184 (6th Cir. 1972), Similarly the Court

of Appeals for the Tenth Circuit concluded that a man-

datory maternity leave “penalizes the feminine school

(2nd Cir. 1973),

Legal scholars have also recognized that a maternity

leave policy discriminates on the basis of sex because the

policy is based on a condition peculiar to one sex:

Where a woman who is capable ef performing her

job is discharged or compelled to take a leave of ab-

sence because she js pregnant, sex discrimination has

occurred; she has been eliminated on the basis of a

Spermatorrhea or red-green color blindness. Com-

ment, Sex Discrimination in Employment: An At-

A Rinepressraae EIN REN ASAD SEETHER rrr aia

NE IGOTA ERO OR eR res ia SRPRNEMES Finucane peer POSTING

i,

tempt to Interpret Title VII of the Civil Rights Act

of 1964, 1968 Duxe L.J.-671, 722.

See also, Crozier, Constitutionality of Discrimina-

tion Based on Sex, 15 B.U.L. Rev. 723, 727-28 (1935);

Eastwood, The Double Standard of Justice: Women’s

Rights Under the Constitution, 5 VAL. L. Rev. 281, 296-97

(1971); Johnston & Knapp, Sex Discrimination, by Law:

A Study in Judicial Perspective, 46 N.Y.U. L. Rev. 675,

738-41 (1971); Note, Are Sex-Based Classifications Con-

stitutionally Suspect?, 66 Nw. U.L. Rev. 481 (1971); Note,

84 Harv. L. Rev. 1499 (1971); Note, Fair Employment—

Is Pregnancy Alone a Sufficient Reason For Dismissal of

a Public Employee?, 52 B.U.L. Rev. 196 (1972).

Thus, a rule based on pregnancy is in fact a sex-based

classification. The question, then, is whether sex is a

“suspect” classification which will trigger the Court’s spe-

cial serutiny.

This Court has long recognized that classifications

based on race, national origin, and alienage are “suspect”

and thus subject to the “strict scrutiny” test of Equal Pro-

tection:

all legal restrictions which curtail the civil rights of

a single racial group are immediately suspect .. . and

courts must subject them to the most rigid scrutiny.

Korematsu v. United States, 320 U.S. 214, 216 (1944).

See also, Bolling v. Sharpe, 347 U.S. 497 (1954); McLaugh-

lin v. Florida, 379 U.S. 134 (1964); Loving v. Virginia, 388

U.S. 1 (1967). :

Legal precedent has been established for regarding

sex as a suspect category and subjecting classifications

based on sex to the “compelling governmental interest”

test of constitutionality. The classic examples of suspect

25

classifications which have invoked ‘the strict scrutiny of

courts are race, alienage and national origin. The com-

mon trait of race, alienage, national origin and sex-based

Classifications js immutability—members of the group

aré locked into their status by an accident of birth. Thus,

the criteria for defining a Suspect classification must cer-:

tainly turn on the inability of an individual to change his

or her status; for it is unjust to classify an individual on

the basis of a congenital and unalterable trait over which

he or she has no control, thereby, giving credence to the

stigma of inferiority which usually attaches to such classi-

fications. Frontiero vy. Richardson, supra; Sail’er Inn y.

Kirby, supra.

Recently, holding unconstitutional a military de-

pendency statute which classified on the basis of sex,

this Court held sex to be a suspect basis of classifica-

tion and noted: that “this departure from ‘traditional’

rational basis analysis with respect to sex-based classifi-

cations is clearly justified” Frontiero v, Richardson, 93 S.

Ct. 1764 (1973). Citing support for such an approach in

the unanimous decision of Reed v. Reed, 404 US. 71 (1971),

the plurality opinion in Frontiero, delivered by Justice

‘Brennan, declares with unmistakable clarity that legis-

lative classifications premised on unalterable sex charac-

teristics which accord males and females different treat-

ment solely on the basis of sex are inherently suspect and

must be subjected to strict judicial scrutiny:

- . . Since sex, like race and national origin, is an im-

mutable characteristic determined Solely by the ac-

cident of birth, ‘the imposition of Special disabilities

upon the member of a particular sex because of their

sex would seem to violate the basic concept of our

system that legal burdens should bear some relation-

ship to individual responsibility. ... And what differ-

PAM Rr ee

26

entiates sex from such non-suspect statuses as in-

telligence or physical disability, and aligns it with

the recognized suspect criteria is that the sex charac-

teristic frequently bears no relation to ability to per-

form or to contribute to society. As a result, statu-

tory distinctions between the sexes often have the

effect of invidiously relegating the entire class of fe-

males to inferior legal status without regard to the

actual capabilities of its individual members. Fron-

tiero, supra, at 1770.

Petitioners’ mandatory maternity leave regulation

classifies on the basis of sex and must be judicially re-

viewed under the test of strict scrutiny; Petitioners can

only justify this regulation as one necessitated by a eom-

pelling governmental interest. We submit that Petitioners

are unable to justify their regulation under the more le-

nient test of reasonableness and certainly cannot justify

the rule on the basis of a compelling governmental interest.

B. The Regulation Abridges Respondents’ Funda-

mental Constitutional and Civil Rights.

Not only is sex a suspect classification, but the chal-

lenged maternity regulation also abridges a number of

Respondents’ fundamental rights and liberties. Classifica-

tions which invade or restrain such rights must be closely

scrutinized and carefully confined. Harper v. Virginia

State Board of Elections, supra. A regulation which denies

constitutionally protected freedom and is based upon a

suspect classification must bear a heavy burden of justifica-

tion and should be upheld only if it is both necessary

to and based on a cgmpelling governmental interest, not

merely rationally related to the accomplishment of a per-

27

missible state policy. McLaughlin v, Florida, supra. Peti-

tioners have contravened both Respondents’ right to work

at their chosen profession and their right to bear chil-

dren; thus, the appropriate standard of review in this

case must be strict judicial] scrutiny.

Although the Supreme Court has never specifically

defined what constitutes a “fundamental right,” the right

ee

to bear children, must surely both be included within ;

that concept. The Opportunity to earn a living is a right ;

fundamental to the enjoyment of all other rights of life F

and liberty. As Professor Charles Reich ‘stated in The

New Property (73 Yate L.J. 733, 738 (1964) ):

- . . today more and more of our wealth takes the

form of rights or status rather than tangible goods.

An individual’s profession or occupation is a prime

example. To many others, a job with a particular em-

ployer is the principle form of wealth. A profession

or a job is frequently far more valuable than a house

or bank account, for a new house can be bought,

and a new bank account created, once a profession

or job is secure.

US. 746 ( 1884), this Court has declared that the right

to follow any of the common occupations of life “is an

inalienable right . . . formulated in the Declaration of

Independence . . . a large ingredient of the civil liberty

of the citizen.” This holding was affirmed in Truax v.

Raich, 239 U.S. 33, 41 (1915) when the Court stated:

It requires no argument to show that the right to

work for a living in the common occupation of the

community is of the very essence of the personal free-

dom and opportunity that it was the Purpose of the

Amendment to secure.

rE Ee

28

The right to work is of special importance and should

bear strictest scrutiny when it involves teachers.. The

concept of the special role and responsibilities of teachers

is set forth in Wieman v. Updegraff, 344 U.S. 183, 195

(1952) (Frankfurter, J. concurring):

To regard teachers . .. in our entire educational sys-

tem, from the primary grades to the university .. .

as the priests of our democracy is therefore not to

indulge in hyperbole. It is the special task of teachers

to foster those habits of open-mindedness and critical

inquiry, which alone makes for responsible citizens,

who, in turn, make possible an enlightened and ef-

fective public opinion. Teachers must fulfill their

function by precept and practice, by the very atmos-

phere they generate. ...

Since teachers play this special role in our society, the

forced removal of pregnant teachers from the classroom

demonstrates to students the very type of discrimination, ;

based on Victorian stereotypes and lack of knowledge, that

education should lead students to reject.

The Court has clearly indicated that it will protect the

marital relationship and its important procreative func-

tion from interference by the state. Meyer v. Nebraska,

262 U.S. 390, 399 (1922) (“right of the individual .. . to

marry, establish a home and bring up children” is an es-

sential part of liberty guaranteed by Fourteenth Amend-

ment): Skinner v. Oklahoma, 316 U.S. 535, 541 (1942)

(right to bear children “fundamental” and sterilization

statute must be viewed with “strict scrutiny”); Loving v.

Virginia, 388 U.S. 1, 5 (1967) (right to marry a basic civil

right and miscegenation statute must be subject to “the

most rigid scrutiny”); Griswold v. Connecticut, 381 U.S.

478, 481 (1965) (Connecticut law prohibiting the use of

mental intrusion into Matters so fundamentally affecting a

person as the decision whether to bear or beget a child.”

(Emphasis original ),

Although these cases concern outright prohibitions on

constitutionally protected rights, similar strict judicial

effectively deterred by the rule from bearing children.

30

Education to give up one constitutional right in order to

exercise another: If women wish to exercise their right

to work, they must relinquish their right to have children.

Since no male employee of the Board of Education is ever

required to choose between these two fundamental con-

stitutional rights, the Board is clearly discriminating against

its female employees by forcing this choice upon them.

It is the combined effect of a rule based on a suspect

classification (i.e. sex) which affects areas involving funda-

mental constitutional rights (i.e. work, marital privacy)

that clearly indicates the appropriateness and necessity of

the court applying strict scrutiny in determining the valid-

ity of the challenged rule.

The full impact and importance of discrimination

based on sex which affects a fundamental interest such

as employment can be seen by examining the situation of

pregnant women who are forced to leave employment while

they are still able to work. Some are the principal pro-

viders in a family where the husband is not working;

others are not married or have been abandoned. A woman

dismissed from a job because of pregnancy may be found

ineligible for unemployment compensation and may be

forced to resort to far more strenuous work in order to

provide for herself and her family.

Statistics prove that society’s ill-considered efforts to

protect women (based on Victorian stereotypes and not

factual evidence) actually do them more harm than good.

Women’s median annual earnings are only about 3/5 of

men’s—$4,457 and $7,664 respectively (Background Facts

on Women Workers, 1970 U. S. Department of Labor,

Women’s Bureau). Much of the difference is accounted

for by occupational distribution in the types and levels

of jobs offered to women; but a substantial part of the gap

31

may reflect the rea) job discrimination that women suffer

because of their dual roles as workers and mothers. The

lowest participation of women in the labor force occurs

during their childbearing and childrearing years (Women

Workers Today, 1970, U. S. Dept. of Labor, Women’s Bu-

reau). For some women this is by preference; but for

many it is the result of sex-based discriminatory rules re-

garding maternity leave. Women, whose salaries are Vital

to family income, are forced out of the labor market, while

they are still able and willing to work, simply because they

are pregnant.

It is undeniably clear that the manner in which a

working woman’s pregnancy is treated, both legally and

economically, profoundly affects her entire career, Surely,

it is beneficial to employers and to society as a whole to

enable the valuable underutilized workforce of women to

fully participate in and contribute to the labor market.

cf., United States v. Hayes International Corp., 415 F.2d

1038, 1045 (5th Cir. 1969). It is inescapable that sex bias

takes a huge economic toll and that unreasonable mater-

nity policies, such as the one in the case now before the

Court, constitute a crucial element of sex discrimination

in employment.

The Cleveland Board of Education’s maternity regula-

tion, which is premised on the suspect classification of sex

and infringes upon fundamental constitutional rights must

bear a heavy burden of justification. To be valid, Peti-

tioners must show that the regulation promotes a “com-

pelling governmental interest” (Shapiro v. Thompson,

Supra at 634).

= NgpeNaRyp ses ctey la |

PRRDROOREI SLOT ILE ED SS BRA

32

._C. No Compelling Governmental Interest Is Served

by Petitioners’ Regulation.

In assessing evidence presented by the School Board

in support of the mandatory maternity leave regulation,

it should be noted that in an area touching on constitu-

tional rights, regulation must extend no further than re-

quired by the situation at hand. As this Court said in

Griswold v. Connecticut, supra at 498:

. it is clear that the State interest in safeguarding

marital fidelity can by served by a more discrimi-

nately tailored statute, which does not, like the pres-

ent one, sweep unnecessarily broadly reaching far be-

yond the evil sought to be dealt with and intruding

upon the privacy of all married couples. See Ap-

theker v. Secretary of State, 378 U.S. 500, 514;

NAACP v. Alabama, 377 U.S. 288, 307-308; McLaugh-

lin v. Florida, 379 U.S. 184, 196. Here, as elsewhere,

“precision of regulation must be the touchstone in an

area so closely touching our most precious freedoms.

NAACP v. Button, 371 U.S. 415, 438.

The Petitioners must therefore demonstrate two

things: Not only that the regulation regarding maternity

leave is needed, but also that the specific provisions of

the present maternity rule are required.

Petitioners have offered two reasons to support the

validity of their maternity regulation: 1) concern that

only “able-bodied” teachers preside over classrooms; and

2) prevention of administrative problems which might oc-

cur in replacing teachers who take leaves of absence. A

full discussion of these justifications and the failure of Pe-

titioners to prove even any reasonable relationship be-

33

tween the rule, the justification for the rule, and the effect

of the rule has been discussed in Part I of this Brief.

The regulation challenged in this case and the stat-

utes challenged in Frontiero and Reed all purported to

serve the end of administrative convenience. Yet, ad-

ministrative convenience was precisely the rationale held

insufficient for sex-based classifications in Frontiero and

Reed:

[A]Ithough. efficacious administration of governmen-

tal programs is not without some importance, ‘the

constitution recognizes higher values than speed and

efficiency.’ Stanley v. Illinois, 405 US. 645, 656

(1972)... [In] the realm of ‘strict judicial scrutiny’

- any statutory scheme which draws a sharp line

between the sexes, solely for the purpose of achieving

administrative 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]. . . . Reed v. Reed, supra, at 76, 77.

Frontiero, supra, at 4613.

Petitioners have utterly failed to provide any tenable

administrative justification for the regulation, nor have

they produced data to support their speculative arguments

concerning the physical incapacity of all pregnant teachers.

LaFleur v. Cleveland Board of Education, 465 F.2d 1184

at 1187 and 1188 (6th Cir. 1972).

The school board can give no rational argument for

choosing the time of four months instead of some other

period (Petitioners’ Brief, p. 20; A. 119, 173, 176). Indeed,

similar maternity leave regulations discussed in other

cases have exhibited a variety of dates at which a preg-

nant teacher is compelled to discontinue her work. See,

34

e.g., Bravo v. Board of Education of the City of Chicago,

345 F. Supp. 155 (N.D. Il. 1972) (after four months) ;

Pocklington v. Duval County School Board, 345 F. Supp.

163 (M.D. Fla. 1972) (after four and one-half months);

Heath v. Westerville Board of Education, 345 F. Supp. 501

(S.D. Ohio 1972) (after five months); Williams v. San

Francisco Unified School District, 340 F. Supp. 438 (N.D.

Cal. 1972) (after seven months). Not only have various

school boards treated pregnancy differently, but expert

medical opinion has established that no two pregnancies

are alike. See Curran, Equal Protection of the Law: Preg-

nant School Teachers, 285 NEw ENGLAND J. Mb. 336 (1971);

Love’s Labors Lost: New Conceptions of Maternity Leaves,

7 Harv. Crv. Rts. Civ. Liss. L. Rev. 260 (1972); Testimony,

of Andre E. Hellegers, M.D., In the Matter of Petitions

filed by the E.E.0.C., et al., Docket No. 19143, Federal

Communications Commission (1971). That the Cleveland

Board of Education would treat all pregnancies alike in-

dicates the impermissible overbreadth of their regulation.

See, Griswold, supra at 498.

There is no basis in fact to justify the challenged

rule based on a concern for “able-bodied” teachers; but

even if it were arguably true, that justification cannot

amount to a compelling governmental interest. There has

been a growing recognition at the Federal level (em-

bodied by Congress in enacting Title VII of the 1964 Civil

Rights Act, 42 U.S.C. 2000(e) et seq.) that it is no longer

the legitimate business of a state, or any of its political

subdivisions, to protect women by legislation which in

fact discriminates against them in the field of employment.

Phillips v. Martin-Marietta Corp., supra; Rosenfeld v.

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

v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969);

Weeks v. Southern Bell Tel. and Tel. Co., 408 F.2d 228

(5th Cir. 1969).

35

Nor does any factual justification exist for the chal-

lenged rule premised on the administrative inconvenience

that might be caused by replacing pregnant teachers. Even

assuming any disruption is caused by departing pregnant

teachers, under the strict Scrutiny standard the disruption

necessary to amount to compelling interest must rise to

the level of making a school system inoperable. Holmes

v. Danner, 191 F. Supp. 394 (M.D. Ga. 1961), cf., Shapiro

v. Thompson, supra. Petitioners do not argue that their

school system would become inoperable if the maternity

regulation were to be struck down as unconstitutional;

they merely argue that striking down the rule would re-

sult in some administrative burdens. The rule itself

causes these minor problems.

Whether the purpose of the School Board’s mandatory

maternity leave regulation is to insure “able-bodied” teach-

ers in the classroom or whether its purpose is to mini-

mize any disturbance of classroom programs caused by

a teacher’s departure, Petitioners have failed to demon-

Strate any “compelling governmental interest” in support

of that policy.

III. SIGNIFICANT AUTHORITY SUPPORTS RE.-

SPONDENTS’ POSITION THAT MANDATORY

MATERNITY LEAVE REGULATIONS ARE DIs.

CRIMINATORY.

The overwhelming authority among courts and gov-

ernmental agencies considering mandatory maternity leave

policies has declared them invalid. While it is recognized

that this Court is not bound by decisions of other courts

and agencies, their rationale and pervasiveness are worthy

of consideration.

36

\

In Frontiero v. Richardson, supra at 1771 the Court

noted:

|C]jongress has itself concluded that classifications

based upon sex are inherently ‘invidious, and this con-

clusion of a coequal branch of Government is not with-

out significance to the question presently under con-

sideration.

The Court in. Frontiero was referring to Title VII

of the Civil Rights Act of 1964 which provides that

no employer, labor union or other organization sub-

ject to the provisions of the Act shall discriminate against

any individual on the basis of “race, color, religion, sex or

national origin.’”” 42 U.S.C. § 2000e-2. Public employees,

such as Respondents, were specifically exempted from

Title VII coverage when the Act was first passed because

it was assumed that the Fourteenth Amendment afforded

them the same protection as private employees would re-

ceive under Title VII (110 Cong. Rec. 13169-72, May 9,

1964). After passage of the Act, the need to provide

specific protection to public employees became increasingly

clear; Title VII was amended to extend coverage to pub-

lic employees (P.L. 92-261, March 24, 1972). Thus Title

VII emerges as the federal congressional embodiment of a

policy designed to combat discrimination; the Equal Pro-

tection Clause of the Fourteenth Amendment is the con-

stitutional embodiment of that same policy.

On April 5, 1972, the Equal Employment Opportunity

Commission, the administrative agency charged with en-

forcement of Title VII, adopted guidelines which declared

that exclusion of. employees “from employment . . . be-

cause of pregnancy is a prima facie violation of Title VII.”

(29 C.F.R. § 1604.10(a)), and required employers to treat

disabilities of pregnancy and childbirth like other tem-

37

porary medical disabilities (29 C.FLR, § 1604.10(b)). These

guidelines prohibit the maternity policy utilized by the

Cleveland Board of Education in the instant case.

The significance of the Commission’s guidelines was

pointed out by this Court in Griggs v. Duke Power Ce;

401 US. 424 433-34 (1971): “[t{he administrative in-

terpretation of the Act by the enforcing agency is entitled

to great deference. . . .” Since the Act and its legislative

history support the Commission's construction, it is rea-

sonable to construe the guidelines as expressing the will of

Congress.

Similar congressional prohibition against sex-based dis-

crimination is contained in the Equal Pay Act of 1963.

29 U.S.C. § 206(d) provides that no employer covered by

the Act “shall discriminate between employees~on the

basis of sex.”

The Executive branch and other governmental agencies

have taken the same position. The Office of Federal] Con-

tract Compliance of the U. S. Department of Labor has

issued interpretative guidelines for enforcing Executive

Order 11246 (3 C.F.R. 339) which prohibits sex discrimina-

tion by employers holding federal contracts. The Sex Dis-

crimination Guidelines provide, in part, that “Women shall

not be penalized in their conditions of employment because

they require time away from work on account of child-

bearing.” 41 C.F.R. 60-20.3(g). Further interpretations

of the guidelines state that the time when maternity leave

shall begin is Primarily a medical decision to be made

by the pregnant employee and her physician. Wilks,

Memorandum, Department. of Labor, 1970.

Federal Courts of Appeals, considering this issue have

overwhelmingly supported Respondents’ view that manda-

tory maternity leaves are violative of the equal protection

mecgomage

clause. LaFleur v. Cleveland Board of Education, 465 F.2d

1184 (6th Cir. 1972); Green v. Waterford Board of Educa-

tion, 473 F.2d 629 (2nd Cir. 1973); Buckley v. Coyle Public

School System, 476 F.2d.92 (10th Cir. 1973); Contra, Cohen

v. Chesterfield County School District, 474 F.2d 395 (4th

Cir. 1973).

Federal District Courts faced with this issue have also

concurred: Bravo v. Board of Education of the City of

Chicago, 345 F. Supp. 155 (N.D. Ill. 1972); Heath v. Wester-

ville Board of Education, 345 F. Supp. 501 (S.D. Ohio 1972);

Williams v. San Franciséo Unified School District, 340

F. Supp. 438 (N.D. Cal. 1972); Pocklington v. Duval County

School Board, 345 F. Supp. 163 (M.D. Fla. 1972).

The same result has been reached by a number of rul-

ings based on state law. For example, the Commissione?,

New York State Division of Human Rights, has ruled that

a regulation requiring teachers to take a leave of absence

after the fourth month of pregnancy and to remain on leave

until at least six months after the birth of the child was

discrimination based on sex. State Division of Human

Rights v. Board of Education of Union Free School Dis-

trict No. 22, Case Nos. CS-21025-70, et seq. (June 29, 1971).

Accord: Awadallah v. New Milford Board of Education,

N.J. Dept. Law and Public Safety, Sept. 29, 1971; Blair v.

New Milford Board of Education, No. E02ES-5337 (Sup.

Ct. Hackensack, N.J., Jan. 20, 1971); Truax v. Edmonds

School District +15, Superior Ct. Snohomish County,

Washington, August 1971, Dkt. #107915. Contra, Cerra v.

East Stroudsburg Area School District, 299 A.2d 277 (1973).

Similarly, the Wisconsin Department of Industry,

Labor and Human Relations has made an interpretive

ruling of that state’s law dealing with sex discrimination.

39

They held thatthe time when a woman leaves before child-

bearing is a matter between the employee and her doctor.

They assured to women who require time away from work

quired rational basis.” An arbitrator in Michigan held

that a rule which required teachers to leave in their fifth

month of pregnancy was arbitrary and discriminatory and

resulted in substantial financial hardship. As a result the

teacher was awarded lost salary, costs for lost insurance

benefits and automatic restoration to her former position.

Southgate Educational Association and Board of Educa-

tion of Southgate Community School District, AAA Case

No. 5439-0323071 (August 3, 1971). Accord: Middletown

Board of Education, 56 L.A. 830, 832 (1971); Flo v. Gen-

eral Electrie Company, 195 N -Y2d 652 ( 1959); Tecumseh

Products Co. v. Wisconsin Employment Relations Board,

126 N.W.2d 520 ( 1959). ,

Amicus respectfully urges this Court to give great

weight to these persuasive authorities and to declare Peti-

tioners’ mandatory maternity leave regulation unconstitu-

tional. - ‘

SA. Pe

bh ic Vat,

Ay ERR

“STERN NARS ARAM ee Some PRES ORL HORE ADS NT Oe: etree i

FPR han osgepensevay

40

CONCLUSION

It is respectfully submitted that for the foregoing rea-

sons, the judgment of the United States Court of Appeals

for the Sixth Circuit, rendered July 27, 1972, should be

affirmed.

Respectfully submitted,

ANDREW J. RuzIcHo

Dran_e R., Lirr

700 Seneca Towers

361 East Broad Street

Columbus, Ohio 43215

(614) 466-8887

Counsel for the International Association of

Official Human Rights Agencies

1625 K Street, N.W.

Suite 102 ,

Washington, D.C. 20006

Of Counsel: _

WILLIAM J. Brown, Attorney RHODE ISLAND COMMISSION FOR

General of Ohio $ HuMAN RIGHTS

Ohio Civil Rights Commission 244 Broad Street

240 South Parsons Avenue Providence, Rhode Island 02903

Columbus, Ohio 43215

MINNEAPOLIS COMMISSION ON

Kermit A. SANDE, Attorney HUMAN RELATIONS and MIN-

General of South Dakota NEAPOLIS DEPARTMENT OF

South Dakota Commission on CiviL RIGHTS

Human Rights 250 Grain Exchange East

State Capitol 412 South Fourth Street

Pierre, South Dakota 57501 Minneapolis, Minnesota 55415

ANDREW MACQUEEN, III . IDAHO COMMISSION ON HUMAN

General Counsel RIGHTS

West Virginia Human Rights Statehouse

Commission Boise, Idaho 83702

1591 Washington Street, East

Charleston, West Virginia 25302

Counsel for Amicus gratefully acknowledge the assist-

ance provided in the preparation of this brief by Suzanne

K. Richards, third year student, College of Law, The Ohio

State University

RAAT UIT CUS wake RW als SENET

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