Motion Amicus Curiae — Cleveland Bd. of Ed. v. LaFleur
Supreme Court brief1974
Ask Donna
What actually matters in this document.
Text
woviow FILE aininy |
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
;
i
<
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
i
‘f
a
Ag
3
Ai
B..
'
ba
®
se Ee de Al Ce ct
t
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.
ROL ATRSTIR OTeY Ges orp PERSO NaS
SPEAR AMIS a tell
Crema a
RAREST ea ok Ss 39)
SE NARS RN SIH wl aaa Wate Rigel 2 Di
SA ities
%
£
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
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.