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Preliminary Memo
G(/'~.
j
C~nf. of May 23, 1975
List 1, Sheet 2
No. 74-1245
LIBERTY MUTUAL
IN~RANCE
CO.
Cert to CA 3
(Stal ey , Hastie, Aldisert)
v.
Federal Civil
WETZEL and ROSS
Timely
This petition presents the statutory analogue to ·this
'
Court's constitutional determination in Geduldig v. Aiello,
417 lJ. S. 484 (1974).
CA 3, sustaining EEOC guidelines, held
-
-
'
<..__....,
- ':hat petitioner• s employment policy., which exclu<:led pregnancy
benefits fr.om the company's income pr_ot:ec.tion plan, violated
c
Ti1t1e VII n£ the Civil Rights Act o:f 1964.
----
--
• !
- 2 -
FACTS:
Respondents are two former female employees of
1/
petitioner.-
,.
,.
They filed sex discrimination charges against
petitioner with the Pennsylvania Human Relations Commission.
Petitioner modified some of its employment practices, but the
PHRC was unable to conciliate the parties, and respondents
filed charges with the United States Equal Employment Opportunity
Commission.
After the requisite period, respondents requested
and received right-to-sue letters.
suit in which they alleged
They filed a class action
th~etitioner's
hiring and pro-
motion policies and pregnancy-related policies violated Title
VII of the -Civil Rights Act of 1964, 42
u.s.c·.
§2000e et seq.
Afte:t: extensive discovery, the District Court entered an inter----
~
wa._.
~
....._
locutory order finding that petitioner's pregnancy-related
policies violated Title VII.
Final judgment on this issue
2/
was entered,-
and petitioner appealed to CA 3 pursuant to 28
lJ .. S.C. § 1291.
.
The pregnancy-related policies invalidated by the District
·· Court,. 372 F .Supp. 114'6 (1974), whose judgment was affirmed by
CA 3, were of two kinds.
who did not
:;::tur~
First, under company policy a woman
to work within three
of delivery of her baby
mont~s
woul~ose~r ~~b;
from the date
this time
~
limitation~­
was not applied to any other leave of absence for other temporary
disabilities.
Title
1/
VII~
The courts concluded that this policy violated
and petitioner does not seek review of these determinations.
The suit was -certified as ·a class action, cf. Sosna v. Iowa,
{1975). The opinions do not disclose at what stage of their
admin1strative ,-o r ju<:Iicial proce.edings respandents left the employ of
petitioner. Ptn App. 1\26..
·
2:_/ The cha1.1enge t:o the hirin_g and promotion policies has procee·d ed
separa tely. See 508 F.2d 239 (CA 3 1975), petition for _certiorari
pending, No. 74-1288.
U.S. ·
- 3 -
second, petitioner provided its employees with aq_income
pr~­
tection plan under which employees would receive payment of
-
-·income during.periods of disability.
The plan, financed in
part through employee contributions, covered all medically
verifiable disabilities other than those resulting from acts
of war, intentionally self-inflicted injuries, accidents
arising out of employment (for which an employee would receive
-
workmen 1 s compensation benefits.), and pregnancy.
In a pre-
Geduldig opinion, the District ·court rejected petitioner's
contention that pregnancy was a "voluntary condition," and
instead elected to follow EEOC guidelines which labeled as
rima facie illegal an employment policy that excluded pregnant
......___..
___
~
~
....
~
,.._,
women from disability programs.
-.,__.......--,
~---------
29 C.F.R. § 1604.10, repro-
duced as an appendix to this preliminary memo.
In
CA 3 affirmed.
tha't cGUrt petit'ioner ·had. argued that Geduldig controlled
and compel.led reversal.
CA 3 read Geduldig as interpreting
---of statutory interpretation.
only the Fourteenth Amendment and as having no bearing on
~
f matters
The court believed that
the broad purposes of the Act applied to sex discrimination
3/
cases.-
Petitioner advanced three arguments in support of ex-
eluding pregnancy-related disabilities from its plan.
It claimed
that pregnancy is voluntary but illnesses are not; the court replied
that the plan covered many activities that people participate in
that involve a risk of disability (e.g., sports, smoking, drinking)
'-
. 3/
In an . interes.ting aside, CA. 3 observed that the addition ·of the
word . "sex" in the ' 1964 Act was ·"ofrered in a tongue-in-check. manner ·
with the intent to undermine the entire Act and assist in its defeat. 1 '
Since CDngres.s did .not retreat in 1972 when it re-examined the Act,
the court believed this indi~ated that sex discriminat i on wa s in deed
intended to be prohibited by the 1964 Act. Ptn App. A9.•
''
.
....
- 4
and are therefore as "voluntaryn as pregnancy.
Seco11d, petitioner
claimed that pregnancy was . not a sickness and thus could properly
be excluded from the plan; the court
rejected this argument because
pregnancy was no different from any disability in the sense that
I
a woman suffers a loss of income because of absence from work--
f. , .
precisely the justification offered for the disability program.
Third; . petitioner claimed that inclusion of pregnancy-related
disabilities would threaten the financial integrity of the plan;
'the court responded (a) petitioner had made no such showing, · and
(b) the EEOC regulations stated that cost is no defense to a
charge of sex discrimination, 29 U.S.C. § 1604.9(e).
The court
;oncluded that petitioner's income protection plan violated Title
VII "by excluding pregnancy benefits from coverage while including
other kinds of temporary disabilities."
Ptn App. Al4.
CONTENTION: · Petitioner contends that GeduJ_dig
"i~
dispositive"-
of this case and indi.cates that the CA decided the case incorrectly. ·
Althou'g h Geduldig involved an i.nterpretati~n· of the Fourteenth
Amendment, it involved a two-step " analytical frame\vork":
first
the Court ascertained whether the program discriminated on the
basis of sex, and second the Court considered the proper standard
by which to evaluate the discrimination.
Although the standar.d
may vary depending on whether a constitutional or statutory command
is involved, petitioner reads ..fDo..tnote 20 of Geduldig as . holding
that there was in fact no discrimination in that case on the basis
of sex_, and that this determination app1.ies equally well · in . the
Title VIT area.
Petitioner .c ontends that this case
is
importar:tt
and that t:be CA. 3· cleeision corrfliets with other district court
.,
- 5 opinions~
e.g., Communications Workers of America v. AT&T,-3/9
f ..Supp. 679 (S.D.N.Y. 1974).
The petitioner contends that the
, EEOC .guidelines .should not have been followed, both because
they represent a relatively-recent change in agency position
and because they are out of step with legislative history.
Cf. Espinoza v. Farah Manufacturing qo., 414 U.S. 86 (1973).
The amici are t)Ut in
force~ri.efs urg ~:_ng
that this
petition be granted have been submitted by the American Life
'Insurance Association., Westinghouse Electric Corporo.tion, and
the Chamber of Commerce.
Their arguments regarding . Geduldig
mirror petitioner's position, but the amici stress the cost
urden imposed by CA 3's decision and observe that·cleveland
Board of Education v. LaFleur, 414 U.S. 632, 639 n. 8 (1974),
spoke approvingly of the EEOC regulations.
This matter is
being litigated throughout the country,- and ,t hey urge the
'
Court to grant the· petition and resolve the apparent conflict
be,t ween 'Geduldig and LaFleur.
DISCUSSION:
Although petitioner's interpretation of
footnote 20 is not implausible, it is unlikely that the Court
intended via -that footnote to address statutory, as contrasted
with constitutional, considerations.
Despite petitioner's
allegations of a conflict, there is no conflict at the CA level,
and some o£ the District (::ourt: opinions cited by petitioner have
been reversed on appeal~
See~ e.g., Communications Workers v.
' '--AT&T, __ F42d __ (CA 2, Mar. 2£, 1975).
Those courts of appeals
that have ,addressed t:his issue,· including CA 8, CA 2, and CA 6,
~
- 16 h "··,; resolved it in a manner consistent with CA 3.
citations in Response at. 5.
See
15
Given this unanimous consensus
on a matter of statutory construction~ there would appear
to be no reason for granting this petition •
.
'
There . is a response as well as three amici briefs.
The
EEOC guidelines are appended to this preliminary memorandum.
I
1:
5/10/75
Nannes
c.LA~ ,·l~ -6' e..s
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it
Opns in Ptn App
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·
§ 160·t.9
Frin;;e benefits.
(a) "Fringe benefits," as used herein, includes medical, hospital, accident,
life in.mrance and retirement benefits;
profit-sharing and bonus plans; leave;
and other terms, conditions~ and privileges or employment.
· (b) It shall 'be an . uplawful employment practice for an employer to discriminate between men and women with
regard to frin ge benefits.
(c) Where an employer conditions
benefits available to employees and their
spouses and families on whether the
employee is the "head of the household"
or "principal wage earner" in the family
unit, the benefits tend to be available
only to male employees and their families. Due to the fact that such conditioning discriminatori.ly affects the
rights o! women employees, and that
"head of household" or "principal wage
earner·~ status bears no rebt!onshlp to
job performance, benefits whlch are so
conditioned will be found a prima fade
violation of the prohibitions against sex
dlscrlmination contained In the Act.
(d) It shall be an unlawful employ ment practice for an employer to make
available benefits for the wives and fami'iies o! male employees where the same
benefits are not made available for the
husbands and famili es of female employees; or to make available benefits for the
wives of male employees which are not
made available for fernale employees; or
to make available benefits to the husbands of female employees which are
not made available for male employees.
An example of such an unlawful employment practice 1.s ·a situation in which
wives o! male employees receive maternity benefits while female employees receive no such benefits.
(e) It shall not be a defense under
title VITI to a charge of sex cliscrim.ination in benefits that the cost of such
benefits is greater with respect to one
sex than the other.
(f) It shall be an unlawful employment practice for an employer to have
a pension or retirement plan which establishes dillercnt optional or compulsory retirement ages based on :sex, or
which d11Ierentiatcs in benefits on the
basis o! sex. A statement or the General
Counsel o!.Sept..ember 13, 1968, providing
for a phasing out or differentials v;rith
regard to optional retirement a.ge for
certn.in incumbent employ~ is hereby
ll>ithdrawn.
5
§ Hi0,1.10
Emplo),ncnt policies rclnting
to pregnancy anJ child!.irth.
Ca) A Written or unwritten employment policy or practice which excludes.
from employment applicants or employees because of pregnancy is in prima facie
violation of title VII.
(b) Disabilities caused or contributed
to by pregnancy, miscarriage, abortion ,
childbirth, and recovery therefrom are,
for all job-related purposes, temporary
disabilities and shoul d be treated as such
under any h ealth or temporary disability
insurance or sick leave D~
connection with employment. Written
and unwritten employmcntpolicles andpractices involving matters such as the
commencement and duration o! leave,
the availability o! extensions, the accrual of seniority and other benefits and
privileges, reinstatement, and payment
under any health or temporary disability
1nsurance.))r sick leave plan, formal or
Informal, shall be applied to dlsabU1ty
due to pregnancy or chUdbirth on the
same t.erms ?.nd condit.!ons as they are
applied to other temporary disabilities.
Cc) \Vl1ere the termination of an employee who is temporarily disabled is
caused by an employment. policy under
which insufficient or no leave is available, such a termination violat.cs the Act
if it bas a disparate impact on employees
of one sex and is not jus Lifted by bu.51ncss
necessity.
•
I
:
-~
PRELIMINARY MEMO
Sunin1.er List 9
Sheet 2
J
No. 74-!589
]
GENERAL ELECTRlC COMPANY
Cert to CA 4
(Hayns worth, C.J., Russell,
Widener, dissenting)
v.
GILBERT
r
t
No. 74-1590
:!
GILBERT
v.
Cert to CA 4
(Hayn sworth, C.J., Russell,
Widener, dissenting)
_,_
GENERAL ELECTRIC COMPANY
Federal/ Civil
Timely ···
>:< The parties filed a joint petition for ccrt, pur s uant to Rule 20, prior to
juclgn1ent. After the petition vva s filed, CA 4 J·enderc;d its decision. The parties
then pro1npU y filed a supplemental brief, renewing tlH~ petition for cert but
abanr!oning refianc:c upon Rulc> ?.0.
- 2 -
I.
(
SUMMA RY:
This case presents the issue of whether an employer 1 s
exclu sion of pregnancy dis a bilitics from its ernployee disability plan runs afoul of
Title VII, 42 U.S . C. § 2000e-5(f)(3).
-------
This question is presently before the Court
in Wet7;el v. Liberty Mutual In s urance Co., No. 74-1245, cert granted, May 27,
1975.
All parties to the action have joined in seeking certiorari.
2.
FAC TS : General Electric, the co-petr, provides a comprehensive program
of disability benefits for its employees.
Although the plan covers various
11
dis-
abiliti es 11 whic h are voluntarily sustained, such as cosmetic surgery, pregnancy
disabilities are wholly excluded from coverage.
Female employees of General
Elect ric bro ught a class action, seeking relief from GE 1 s sex- biased practices.
The sole pra ctic e complained of was GE 1 s denial of sickness and disabilit y
~ nefits
to employees a bsent from work because of pregnancy.
Following the development of an elaborate record, the district court (E. D.
Va.) (Merhig e, D. J.) ruled tha t the employer 1 s exclusionary policy violated Title
VI I.
GE appealed to CA 4, which is sued an order on June 9, 1975, that its de.cisio n
would be delay e d pending this Court 1 s decision in Wetzel v. Liberty Mutua l Insur ance
Co., supra.
The parties then filed a joint cert petition, pursuant to Rule 20, prayi ng
for a writ to i ss ue in advance of the judgment of CA 4.
Ten days later, on June 27,
~
1975, CA 4 r endered its decision, one judge dis senting, a ffirming the di s t ct 1 s
judgm e nt.
The court offered no explanation for its about-face in handing down the
decision while Wetzel was still pending.
The p arties then filed a joint
11
suppl eme nta l bri ef.
11
All parties continue to
seek cc rt, and request oral argument sequentially with that in Wetzel if cert i s
grant ed .
- 3 -
3.
CONTENTIONS:
presented in Wetzel.
..,
All parties concur thq.t this issue is identical to that
The litigants note that Wetzel was decided in the dist ct on
a motion for summary judgment, with a very sparse record.
1
In contrast, the
record in the present case is replete with detailed evidence and testimony that,
in the parties 1 view, will be helpful to this Court in resolving the Wetzel is sue.
The parties also agree that the decision by CA 4 does not render moot the joint
pre-judgment petition, although Rule 20 is admittedly no longer applicable.
4.
DISCUSSION:
Regardless of the comparative completeness of the records
in Wetzel and this case, the identical nature of the issues makes this case an
appropriate hold.
The parties have filed a joint petition and a joint supplemental brief.
Starr
8/4(75
DK
Op of dist ct in petn;
Op of CA 4 in sup brief
~U't .. ~'i.. 9 - :l"i- l s'
Court
...
CA - 4
Voted on .................. , 19 .. .
Argued .................. . , 19 .. .
Submitted ................ , 19 . . .
Assigned ................ .. , 19...
No. 74-1589
Announced ....... .. ...... . , 19 ... (Vide 74-1590)
GENERAL ELECTRIC COMPANY, Petitioner
vs.
MARTHA V. GILBERT, ET AL.
6/17/75
Cert.
HOLD
FOR
CERT.
JURISDICTIONAL
STATEMENT
MERITS
MOTION
AB-
NOT
~----,_--,--,,--,--;---.--+--.-~
Rehnquist, J ......... .. .
Powell, J ........ ...... .
Blackmun, J ....... .... .
Marshall, J . ........... .
White, J .......... ..... .
Stewart, J ............. .
Douglas, J .......... .... .
Burger, Ch. J . ......... .
I •
•... ••
Brennan, J............. .
,,
''
•
. ...... .
I
'
•
•
•
•
~
•
•
0
~~ '\--;tq-1S
Court
CA - 4
Voted on .................. , 19 .. .
Argued ................... , 19 .. .
Submitted ....... ......... , 19 . . .
Assigned .................. , 19...
No. 74-1590
Announced ................ , 19 ... (Vide 74-1589)
MARTHA V. GILBERT, ET AL., Petitioners
vs.
GENERAL ELECTRIC COMPANY
6/17/75
Cert. filed.
HOLD
JURISDICTIONAL
NOT
CERT.
MERITS
MOTION ABFOR t----,.--+---S,T_A_T_E,M_E_N_T..--f-----.--+--.--lSENT VOTG
D
N
POST DIS
AFF
REV AFF
G
D
ING
Rehnquist, J . ....... ......... .
Powell, J .................... .
Blackmun, J . ................ .
Marshall, J . ................. .
White, J . .................... .
Stewart, J ................... .
Brennan, J................... .
Douglas, J ................... .
Burger, Ch. J ............... ..
74-1589 GENERAL ELECTRIC v. GILBERT
74-1590 GILBERT v. GENERAL ELECTRIC
Argued 1/19/76
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2.
No. 74-1589 General Electric Co. v. Gilbert
This is a class action in which the only question is the
payment of disability benefits for pregnancy.
A The trial court
found that the failure to pay benefits violated Title VII.
It then entered an order enjoining the continuance of the
policy.
The court also said that "[m]onethry judgments will
be entered in favor of those members of the class affected in
such amounts as the Court untimately concludes is proper."
That order was stayed pending disposition on appeal.
(Russell, Haynsworth; Widener, dissenting) treated the
CA 4
~~
action as "a class action ... to secure affirmative injunctive
xHi:i:"f relief", took the appeal, and affirmed.
~nprtmt
<!Jourl of flrt2lfuiit~ .§mtcs
'Jlllfcur£ringimt, g=l. Qj:. zogrJ!;;
CHAN!B E RS OF
JUSTICE POTTER STEWART
January 21, 1976
MEMORANDUM TO THE CONFERENCE
Re: 74-1589 - General Electric Company
v. Gilbert
I would vote to reverse the judgment in this case.
INDEX
Question presented__________________________
lnterest of the United States________________
Statement ---------------------------------1. 'Liberty Mutual Tnsurance Co. v. WetzeL
2. Gene'ral Electric Co. v. Gilbert_________
Summary of argument_______________________
.Argument:
I. Title VII forbids the complete exclusion of pregnancy-related disabilities
from the benefits afforded by an employer's income protection plan which
protects employees against other,
similar disabilities__________________
A. The exclusion of pregnancyrelated disability from the
plans here at issue is a prima
facie violation of Title VII_
B. This Court's decision in Gebttldig v. Aiello does not bar a
finding that a classification
based on pregnancy violates
Title VII__________________
C. Guidelines issued by the responsible administrative agency
properly interpret Title VII
to prohibit the exclusion of
pregnancy-related disability
from an otherwise comprehensive disability benefits plan__
(I)
212- 450- -75- -1
Par•
1
2
3
4
6
7
9
9
18
22
III
II
~rgument-Continued
II. The business considerations proffered
by petitioners do not provide sufficient justification to overcome the
prima facie violation of Title VII__
~onclusion --------------------------------ppendix ----------------------------------
26
32
33
CITA.TIO~
lases:
Albenwrle Paper Go. v. J.ll oody, 422 1J.S.
405 ---------------------------------- 11,23
Boston Chapter, NAACP v. Beecher, 504
F. 2d 1017, certiorari denied, 421 1J.S.
910 ---------------------------------17
Bowe v. Colgate Pal'tnolive Go., 489 F. 2d
896 ---------------------------------- 11,16
Cheatwood v. South Central B ell Tel.&: Tel.
Go., 303 F. Supp. 754__________________
16
Commonwealth of Pennsylvania v. O'Neill,
473 F. 2d 1029________________________
17
Gmnmunications TVorkeTs of America v.
American Telephone and TelegTaph Go.,
513 F. 2d 1024, pending on petition for a
writ of certiorari, No. 74-160L_________
18
Dandridge v. TFilhams, 397 1J.S. 471____
19
Danielson v. Board of Higher Education,
358 F. Supp. 22______________________
30
Danner v. Phillips Petroleum Go., 447 F.
2d 159_______________________________ 11, 17
Davis v. Washington, 512 F. 2d 956, certiorari granted, No. 74-1492 (October 6,
1975) ------------------------------17
Diaz v. Pan AmeTican World Airways,
Inc., 442 F.2d 385____________________
27
Cases-Continued
Espinoza v. Fa1·ah Manufacturing Co., 414
1J.S. 86______________________________ 23, 24
Fitzpatrick v. Bitze'r, certiorari granted,
December 15, 1975 (No. 75-251)------7, 8
Geduldig v. Aiello, 417 1J.S. 484__________
5,
7, 8, 15, 17, 18, 19
Goesaert v. Cleary, 335 1J.S. 464________
21
Gregory v. Litton Systems, Inc. 472 F. 2d
631 --------------------------------20
Griggs Y. Duke Power Co., 401 1J.S. 424__
10,
11,17,23,26
H olthans v. Gontpton &: Sons, Inc., 514
F. 2d 651____________________________
19
Hutchison v. Lake Osweg.o School District,
519 F. 2d 961________________________
18
Jeff e1·son v. Hackney, 406 1J.S. 535______
19
Jones v. Lee Way Motor Freight, Inc., 431
F. 2d 245, certiorari denied, 401 U.S.
954 ---------------------------------27
Kotch v. Board of Ri·v er Pilot Commissio'ners, 330 1J.S. 552__________________
22
Krause v. Sacnnncnto Inn, 479 F. 2d 988__
22
J.lfcDonnelZ Douglas Corp. Y. Green, 411
lJ.S. 792_____________________________
10
Ma.nhm·t Y. City of Los Angeles, 387 F.
S11pp. 980---------------------------14
Jlluller Y. U.S. Steel Corp, 509 F. 2d 923__
11
Palmer v. Geneml ~Mills, Inc., 513 F. 2d
1040 -------------------------------11
Phillips Y. 1llartin 1llarietta, Corp., 400 1J.S.
542 ---------------------------------- 10, 13
Robinson '""A LorillctNl Corp., 444 F. 2d
791 ---------------------------------- 26, 27
IV
v
:ases-Continued
Rogers v. Equal Empl.oyrnent Oppo1·tunity
10
C01nrnission7 454 F. 2d 234____________
Rosen v. PHblic Service Electric & Gas
Co. 7 477 F. 2d 90______________________
10
Rosenfeld v. Southern Pacific C01npany7
444 F. 2d 1219 ________________________ 16,21
Batty v. Nashville Gas Co. 7 11 FEP Cases
18
1 -----------------------------------Smith v. Troyan 7 520 F. 2d 492, petition
for a writ of certiorari pending, No.
75-734 ------------------------------22
Sprogis v. United Air Lines7 Inc., 444 F. 2d
1194, certiorari denied, 404 U.S. 99L_ 10-11, 15
Tyler v. Vicke1·y, 517 F. 2d 1089 __________ 18,22
Udall v. Tallrnan7 380 U.S. L___________
23
United States v. Bethlehem Steel Corp., 446
F. 2d 652____________________________
27
United States v. C &: 0 Ry. Co. 7 471 F. 2d
582 certiorari denied, 411 U.S. 939______
17
United States v. Hayes Infl Corp. 7 456 F.
2d 112________________________________
17
United States v. Ironwo1·kers Local 867 443
F. 2d 544, certiorari denied, 404 U.S.
984 ---------------------------------17
United States v. Masonry Contractors
'A.ss 7n of Mernphis 7 Inc. 7 497 F. 2d 87L_
17
United States v. N. L. Industries7 Inc., 479
F. 2d 354____________________________
17
United States v. St. Louis-San Francisco
Ry. Co. 7 464 F. 2d 301, certiorari denied,
1107_________________________
27
409
United States v. United Bro. of Ca1·penters
and Joiners, Local 169, 457 F. 2d 210,
certiorari denied, 409 U.S. 85L_______
17
Cases-Continued
United States v. Wood, Wire and Metal ·
Lath Infl Union 7 Local No. 46, 471, F.
2d 408, certiorari denied, 412 U.S. 939__
17
Wallace v. Debron Co1·p. 494 F. 2d 674____
20
Weeks v. Southern Bell Tel.&: Tel. Co., 408
F. 2d 288----------------------------- 11,21
West Coast Hotel Co. v. Pa1-rish7 300 U.S.
379 ---------------------------------21
Wetzel v. Liberty Mutual 7 511 F. 2d 199_ 3, 12,22
Williamson v. Lee Optical Co., 384 U.S.
483 ---------------------------------- 19,20
Statutes and regulations:
Civil Rights Act of 1964, Title VII, 78
Stat. 253, as amended, 42 U.S.C. 2000e,
et seq________________________________
2
Section 703(a), 42 U.S.C. 2000e2(a) -------------------------- 5,10,17
Section 706(f) (1), 42 U.S.C. (Supp.
IV) 2000e-5(f)(1)________________
2
Section 717, 42 U.S.C. (Supp. IV)
2000e-16 ------------------------2
Education Amendments of 1972, Title IX,
86 Stat. 373, as amended, 20 U.S.C.
(Supp. IV) 168L_____________________ 3, 25
Education Amendments of 1974, Pub. L.
93-380, 88 Stat. 484___________________
25
Equal Pay Act, 77 Stat. 56, as amended, 29
206(d)________________________
14
3
5 C.F.R. 630.401 (b)--------------------29 C.F.R. 800.116( d)------------------- 14-15
29 C.F.R. 1604.9 ______________________ 2, 22, 33
29 C.F.R. 1604.9(b) --------------------- 10, 30
29 C.F.R. 1604.9(e)_____________________
27
29 C.F.R. 1604.10 _____________________ 2, 22, 33
u.s.
u.s.c.
VI
:3tatutes and regulations-Continued
29 C.F.R. 1604.10(b) -------------------41 C.F.R. 60-20.3 (c)-------------------45 C.F.R. Part 86, as added, 40 Fed. Reg.
24128 -------------------------------45 C.F.R. 86.57(c), as added, 40 Fed. Reg.
24144 -------------------------------\fiscellaneous :
120 Cong. Rec. H12332-12334 (daily ed.
])ec. 19, 1974)-----------------------121 Cong. Rec. C9714-9715 (daily ed. .Jnne
5, 1975)-----------------------------Federal Personnel ..llfanual, Chapter 630,
Subchapter 13, § 13-2 (April 30, 1975) __
38 Fed. Reg. 35338 _____________________ _
5,33
24
24
~n tit~ ~uurttnt ~nurt n~ tit~
'mniu!l ~taus
OCTOBER TERM, 1975
25
Nos. 74-1245, 74-1589 and 7-±-1590
26
LIBERTY :MuTUAL IxsURAXCE Co:MPAXY, PETITIONER
v.
26
SANDRA WETZEL, ET
3
24
GENERAL ELECTRIC
A.L.
COMPA~Y,
PETITION"ER
v.
:MARTHA \!. GILBERT, ET AL.
1fARTHA \!. GILBERT, ET
A.L.,
PETITIO)i"ER
v.
GEXERAL ELECTRIC COMPANY
ON WRTTS OF CERTIORARI TO THE UNITED STATES COURTS OF
APPEALS FOR THE THIRD AND FOURTH CIRCUITS
:BRIEF FOR THE UNITED STATES AND THE EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION AS AMICI CURIAE
QUESTION PRESENTED
Whether a private employer's exclusion of pregnancy and pregnancy-related disabilities from an
(1)
3
2
otherwise comprehensive employee disability income
protection plan constitutes sex discrimination in violaion of Title VII of the Civil Rights Act of 1964 78
Stat. 253, as amended, 42 U.S.C. 2000e, et seq.
INTEREST OF THE UNITED STATES
The responsibility for federal enforcement of Title
VII has been given by Congress to the Department
)f Justice, the Equal Employment Opportunity Comnission, and the Civil Service Commission. Under
~2 U.S.C. (Supp. IV) 2000e-5(f) (1), the Equal Em)loyment Opportunity Commission may bring a civil
wtion against a private employer if, following the :fil-ng of an individual's charge with the Commission,
:onciliation efforts fail. When the employer is a gov:rnment, governmental agency, or political subdiviion, excluding the federal government, the Commision may refer the case to the Attorney General for·
uit. When federal employment practices are at issue,.
he Civil Service Commission, in addition to exertingversight responsibility to insure nondiscri1nination in
ederal employment, serves as -the reviewing adlninisrative authority for Title VII charges filed by indiidual employees against federal agencies. 42 u.s.a.
Supp. IV) 2000e-16.
Both the Equal Employment Opportunity Comlission and the Civil Service Commission have issued
uidelines to effectuate the provisions of Title VIL
wo of the EEOC guidelines, 29 C.F.R. 1604.9 and
604.10, are directly applicable here and were relied
pon by both courts of appeals in support ·of their·
ecisions in these cases 1 (Wetzel v. Libe1·ty Afutual)'J
511 F.2d 199, 204, n. 5 (C.A. 3); Gilbe1·t v. General
Electric Go., 10 FEP Cases 1201 (C.A. 4), opinion
printed in the Supplemental Brief of all Parties to
the Joint Petition for a \Vrit of Certiorari/ at 3a,
n. 7).
Moreover, ptusuant to Title IX of the Education
Amendments of 1972, 86 Stat. 373, as amended, 20
U.S.C. (Supp. IV) 1681, the Department of Health,
Education, and Welfare promulgated regulations con.c erning pregnancy disability which were signed by
the President and submitted to the Congress. Although these regulations are not applicable here since
petitioners are not within the ambit of the education
amendments, the validity of this administrative interpretation will be affected by the Court's decision
in these cases.
Also, since resolution of these cases will affect the
responsibilities not only of private employers, but of
governmental employers as well, the Court's decision
will affect the Title VII enforcement responsibility of
several federal agencies.
STATEMENT
The petitioner employers in the cases before this
Court are private employers which maintain income
disability protection plans designed to help employees
1 Although federal maternity leaYe poJicies are not directly inYolved in either suit, they are consistent with the policies reflected
in these EEOC guidelines. Pregnancy disability leave is treated
under the same sick leave provisions as are all other disabilities.
See Federal Personnel Manual, Chapter 630, Subchapter 13, § 13-2
(April30, 1975). See also 5 C.F.R. 630.401(b).
2 Hereinafter cited "Jt. Supp. Pet."
212-450- 75- -2
4
5
through periods of disability. The plans, to ·which
~mployees must subscribe, accomplish this by providng the disabled employee with a percentage of his or
1er weekly income during the period of disability.
Both plans specifically exclude pregnancy disability
!rom coverage.
pays 33 cents per one htmdred dollars of salary (App.
99). According to the petitioner's booklet, this is approximately one-third the cost of the plan, and the
balance is paid for by the petitioner (App. 99).
On plaintiffs' motion for summary judgment, the
district court held that the employer's practice violated Section 703(a) of Title VII and granted plaintiffs' motion for partial summary judgment (372 F.
Supp. 1146 (W.D. Pa.) ). The Third Circuit affirmed
(511 F.2d 199). The cou1·t of appeals rejected petitioner's reliance on this Court's opinion in Geduldig v.
Aiello, 417 U.S. 484, holding that the constitutional
interpretation of Geduldig was not directly applicable to the statutory interpretation of Title VII. The
court noted, and deferred to, the applicable EEOC
guideline · (29 C.F.R. 1604.10(b)) which indicates
that benefits are to be applied to pregnancy disability on the same basis as benefits are applied to
other disabilities. The court of appeals rejected
petitioner's justifications for excluding pregnancy
from the disabilities covered by its plan, and concluded that the practice violated Title VII because
"[t]he company's policy is neutral on its face but
treats a protected class of persons in a disparate
manner. This is precisely what Title VII intends to
strike down." 511 F.2d at 206-207. 5
1. LibeTty Jlutual Insurance Go. v. Wetzel
This suit was filed as a class action, alleging a broad
:ange of sexually discriminatory treatment/ includng the exclusion of pregnancy from the income dis,bility plan. The plan states that "[w]hen disability
'r om illness or accident keeps you away from work,
·our Income Protection Plan is designed to continue
, portion of your usual earnings" (Br. of Lib. !fut.
t A2).
In addition to excluding disability from pregnancy
r any cause related to pregnancy, the Liberty .1\futual
1lan excludes disability caused by acts of war or uneclared war, attempted suicide or intentionally selfillicted injury, or any disability not requiring the
ttendance of a physician licensed to prescribe and
dminister drugs and to perform all surgical proceures (App. 99). 4
The employee covered by the Liberty ::Jfutual plan
3
Other issues initially in this suit involved pay differentials,
.scriminatory hiring practices, discriminatory job classificat ions,
td maternity lea>e practices. These issues were resolved below ad~rsely to the employer and are not before tllis Court. See 508
2d 239 (C.A.. 3), certiorari denied, 421 U.S. 1011, and 511 F.2d
9 (C.A. 3), certiorari granted on another issue, 421 C S. 987.
4
Citations to theW etzel appendix appear as "App."
5
Liberty Mutual did not offer to introduce any evidence in support of its contention that the costs of including pregnancy-related
disabilities preclude its expanding the coverage of its plan (see 511
F.2d at 206 ). Instead: it took the position that the cost of including pregnancy-related disabilities could not be reliably estimated
(App. 165, 194).
6
7
2. General Electric Co. '· Gilbert
cantly from other disabilities covered by the plan. At:i
in Wetzel, the court rejected the "voluntariness" distinction offered by the employer, finding that the plan
coYers other disabilities voluntarily incurred (Jt.
Supp. Pet. 6a-7a). The court, as did the Third Circuit
in Wetzel, rejected petitioner's reliance on Geduldig,
supra, noting that Title VII's standards were not the
same as those applied by this Court in Geduldig.
Unlike the petitioner in Wetzel, GE had offered
evidence in the district court on the issue of increased
cost of inclusion of pregnancy benefits for the purpose of disproving intent to discriminate. The district
court viewed the cost evidence within the context of a
business necessity defense, and found that the standard imposed by that defense was not proved by the
cost evidence. The court of appeals held the cost evidence irrelevant, noting that it was not offered as a
business necessity defense (and, indeed, that such a
defense was specifically disclaimed), but to disprove
the possibility of proof of invidious intent left open
by Geduldig. Because Geduldig was inapplicable, the
court of appeals ruled, it had no occasion to consider
the cost evidence (Jt. Supp. Pet. 10a-11a and n. 23).
This suit was also filed as a class action, limited to
i:he issue of exclusion of pregnancy from GE's disability income protection plan. The plan, which includes sickness and accident col'erage, as well as life
and medical insurance components, states that" [t]his
plan is designed to help rou and your dependents
meet the threats to security that are brought about
by loss of 11ages through death or disability and the
medical expenses which occur when you or one of
your dependents have a sickness or accident" (III
App. 1062). 6 The plan excludes only disability from
pregnancy (or suffered while absent from work due
to pregnancy, see II App. 423) or from complications
in connection with pregnancy and childbirth (III App.
1066). 7 The GE Sickness and Accident Insurance Plan,
at one time financed partially by employee contributions, is at present financed totally by the employer
(III App. 1067), which is a self-insurer (I App. 175,
241).
Following a trial, the district court held that the
eX'clusion of pregnancy-related disabilities violates
Title VII's pTohibition against sex discrimination. The
court of appeals affirmed, finding that the exclusion
is sex-linked and a nolation of Title VII, and that
pregnancy-related disabilities do not differ signifi6 Citations to the GilbePt Appendix appear as " (volume no.)
App."
7
CoYerage is included, inte?' alia, for electiYe surgery, for disabilities resulting from self-inflicted injuries (including attempted
suicide), and for disabilities resulting from an employee's commission, or attempt to commit, an assault, battery or felony (II
App. 608, 61-!-615).
SU~ARY
OF ARGUMENT
By including sex as one of the prohibited bases of
discrimination in Title VII of the Civil Rights Act
of 1964, Congress enacted a broad prohibition against
employment practices which differentiate between
employees on a sexual basis to the detriment of either
sex. See Fitzpatrick v. Bitzet·, 10 FEP Cases 956,
(C.A. 2), certiorari granted on other issues, Decem-
8
9
ber 15, 1975 (No. 75-251). The disability insurance
plans at issue here comprehensively cover all substantial risks of employee income loss due to disability except for pregnancy-related disabilities. Their
net effect, therefore, is to subject only women employees to a substantial risk of total loss of income
because of temporary medical disability. This is necessarily a discrimination on the basis of sex in prima
facie violation of Title VII, regardless of the extent
to "'\\hich women as a statistical group benefit from
the plans' coverage of other causes of disability.
\\Thether or not the latter consideration might in
other circumstances justify special treatment of pregnancy coverage within a disability plan, it cannot
compensate for subjecting only women to the risk of
disability without income protection by total exclusion
of pregnancy-related disabilities from the present,
otherwise comprehensive plans.
This Court's decision in Geduldig v. Aiello, 417 U.S.
4:84, is not to the contrary. As the SL"'{ courts of appeals
which have addressed the issue have unanimously
;tated, the Court's hold in Geduldig that the Fourteenth Amendment permits a state to proceed one step
1t a time in enacting a disability benefits program
ioes not require or even suggest that Congress' comrehensive (rather than one-step-at-a-time) prohibi:ion of all forms of sex discrimination in employment
:1 Title VII should be interpreted to permit exclusion
)f pregnancy coverage from otherwise comprehensive
employee disability insurance plans.
:K or did the courts below err in relying on the
1pplicable guideline of the Equal Employment Oppor-
tnnity Commission. There is no indication that the
guideline is contrary to congressional intent, and this
Court has explicitly stated that the fact the responsible
agency has changed its position on an issue does not
mean that its current interpretative regulation is not
entitled to judicial deference.
Finally, petitioners' asserted justifications for the
pregnancy exclusion do not constitute the showing of
business necessity required to rebut a pri1na facie
\iolation of Title VII. The justifications offered here
are solely cost-related, and petitioners have not shown
that the cost of a disability insurance program which
accommodates pregnancy disability would in some
manner be prohibitive. Regardless of whether some
actuarial-based method of insuring the risk of pregnancy-related disability might be devised that would
apportion the costs of the program fairly and still be
consistent with Title VII, the complete exclusion presented in these cases is prohibited by Title VII.
.
ARGUMENT
I
TI'TLE VII FORBIDS THE COMPLETE EXCLUSIOX OF PREGNANCY-RELATED DISABU.ITIES FROl\1 THE BEXEFITS AFFORDED BY AN EMPLOYER's L~COl\IE PROTECTIO~ PLJ.X
WHICH PROTECTS EMPLOYEES AGAIXST OTHER, Sil\Ill..AR
DISABILITIES
A. THE EXCLUSION OF PREGNANCY-RELATED DISABILITY FROlii THE
PLANS HERE AT ISSUE IS A PR!Jld. FACZEYIOWTION OF TITLE VII
In enacting Title VII of the Civil Rights Act of
1964, Congress established a broad prohibition of un-
10
11
equal treatment by employers of their employees on
the basis of race, religion, national origin, or sex. This
Court, on the several occasions when it has considered
Title VII in the context of racial discrimination, has
recognized that Congress' purpose in enacting Title
VII was "to assure equality of employment opportunities and to eliminate those discriminatory practices
and devices which have fostered racially stratified job
environments to the disadvantage of minority citizens." McDonnell Douglas Gorp. v. G1·een, 411 U.S.
792, 800. See also Gt·iggs v. Duke Power Go., 401 U.S.
424, 429-430. Since Section 703 (a) established a similar
prohibition for discriminatory practices based on sex,
Phillips v. Martin llfarietta Got·p., 400 U.S. 542, it is
clear that Title VII was intended as well to eliminate
employment practices 8 which disparately treat men
and women:
Sprogis Y. United Air Lines, Inc., 444 F.2d 1194, 1198
( C.A. 7), certiorari denied, 404 U.S. 991. Although
present judicial standards for assessing challenges
made under Title VII have, for the most part, arisen
in cases considering practices found to affect employees detrimentally on a racial basis, those standaTCls are equally applicable to sex-based claims, and
provide proper guidance for deciding whether the
practice violates Title VII. Palmm· v. General Mills,
Inc., 513 F.2d 1040, 1042-1043 (C.A. 6); Bowe v.
Colgate, Palmolive Co., 489 F.2d 896, 900 (C.A. 7).
In Griggs, supm, this Court held that "[t]he Act
proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in
operation" ( 401 U.S. at 431), and emphasized that
"Congress directed the thrust of the Act to the conseq~~ences of employment practices, not simply the
motivation" ('id. at 432). See also Albemarle Pape1·
Go. v. Moody, 422 U.S. 405. Accordingly, an employment practice may be found to be a p1·ima facie violation of Title VII's prohibition against sexual discrimination either by proof that it is specifically directed
only at one sex, TV eeks v. SoutheTn Bell Tel. &: Tel.
Go., 408 F.2d 288 (C.A. 5), or by proof that the practice, howeYer sexually neutral it appears to be, affects
primarily members of one sex, Danner v. Phillips
Petroleum, Go., 447 F.2cl159 (C.A. 5).
The dit'lability insurance plans before this Court
both specifically exclude pregnancy disability from
their other"ise comprehensive coverage. Their underlying purpose is, of course, to protect the disabled
•
In forbidding employers to discriminate
against individuals because of their sex, Congress intended to strike at the entire spectrum
of disparate treatment of men and women resulting from sex stereotypes.
Petitioner GE argues that a benefit of employment is less
"significant" than an employment opportunity and is afforded less
protection by Title VII (see Br. of GE at 53-54.). The Act, however, specifically states (Section 703(a)) that it is an unlawful
employment practice to "fail or refuse to hire * * *,or otherwise
to discriminate * * * with respect to compensation, terms, conditions, or privileges of employment, because of * * * sex,"
indicating no difference between its prohibition of discrimination
in hiring and in other areas of employment practices. See 29
C.F.R. 1604.9(b), the EEOC guideline which prohibits discrimination in the application of fringe benefits in similar terms, which
is set forth at p. 33, infra. See also Rosen v. Public Service Electric
& Gas Co., 477 F.2d 90 (C.A. 3); Rogers v. Equal Employment
Opportunity Commission, 454 F.2d 234 ( C.A. 5).
8
""
212-4j0--75----3
12
13
employee against the twin hardships of loss of income
due to inability to \York and medical expenses. The
disabled pregnant employee, ho\>ever, is no less affected
by the need for such protection than is any other disabled employee. And, in contrast to the other, quite
unusual causes of disability not covered hy the Liberty :Mutual plan \Yhieh affect both men and women
(see p. 4, supra), "[p]regnancy is," as the com't of
appeals stated in Gilbert, ''a condition unique to
women" (Supp. Jt. Pet. 4a).
The net result of the pregnancy exclusion in these
plans, therefore, is to subject only \Yomen to a substantial risk of total loss of income heeause of trm(
porary medical disahility. 9 ::'lien (and, o£ course,
Both petitioners seek to distinguish pregnane~· from the conditions covered by their re:::pectiYe plans to justify its Pxclusion
(see Br. of Liberty :Jiutnal at 16-1!); Dr. of GE at 62-66). Primary reliance is placed on the propo:::ition that prep:nuncy is a
vohmtary condition, and not a sickness or a disease, and, therefore,
may properly be excluded from an em~ployee insurance program
designed to provide bendits to employees unable to work due to
sickness or disease-related disability.
Both courts of appeals rejPcted this alleged distinction (lVetzel.
511 F.2d at 206. Oilbel't . •Jt. Snpp. Pet. at 6a-7a). Both plans
cowr disabilities which result from Yoluntarv acti>ities. such as
1 o:ports injuries or wnereal disease ("•hich.like pregnancy, may be
Y an unintended con:::equence of Yoluntary sexual activities). Similarly, both plans coYer Yolnntarily incurred disabilities resulting
:from cosmetic or other electiYe surgery. rather than from sickness
or disease. In addition, pregnancy may not always be Yoluntary,
and the complications of preg11ancy. which are a sickness not Yolnntarily assumed, are also exclnded from the pditionrrs· plans
(~\pp. V9, III App. 1066). In short, the purpose of these plans
is comprehensi,·ely to proYide a temporary source of income to
employees unable to work due to physical disabilit~·. and there
9
•
women physically tmable to become pregnant) are subjeet to no such risk under the General Electric plan
and to only slight risk of that consequence (a risk
also shared by all the women) under the Liberty
J\fntual plan .
The fact that the plans subject only some, rather
than all, of the women employees to this substantial
risk is not significant for Title VII purposes, since
it is settled that the Act affords protection against
discriminations based on sex (or race, etc.) plus
another characteristic. See Phillips v. J.lla1·tin
Jlfariettct Gottp., sup·r a (employment distinction based
on parental status excluded only women); SpTogis,
supra, (employment distinction based on marital
status excluded only women).
Nor, in our new, can there be a basis for rebutting
the p ·r ima facie discriminatory effect of the pregnancy exclusion in the fact that women (if not absent
from work due to pregnancy) are entitled to share
equally with men in the benefits afforded by the plans
for non-pregnancy-related disabilities. Even if ~
could be shown that women as a statistical group are
receiving a larger proportional share than men of
these other benefits, that would not compensate for
is no sexually neutral basis for the exclusion from these plans
of pregnancy-related disability.
To the extent the pregnancy exclusion may reflect concern with
possible malingering or with the possibility that the employee
may not return to work after the period of disability, there are
obvious means available for dealing more comprehensively with
those concerns without discriminating against pregnancy-related
disabilities.
15
14
the fact that only women (including women who may
n~er receive any benefits) are subject lmder the
plans to a substantial risk of total income loss because
of medical disability. Insulating men from that risk
while leavJ.ng women subject to it is necessarily discriminatory-regardless of whether evidence of costs
and actuarial statistics could ever be used (short of
a showing of business necessity, discussed in point II,
infra,) to rebut the p1·ima fctcie inference of discrimination that would arise from special treatment (such
as increased employee premium charges or reduced
benefits) of pregnancy coverage within a comprehensive disability plan. 10 The latter issue is, of course,
10
An employer providing such special treatment of employees
requiring pregnancy coverage might thus seek to disting·uish between a statistical rebuttal of a prima farie inference of discrimination and the showing of business necessity required to rebut a
p1ima facie inference of a violation (when the inference of discrimination remains unrebutted). \Vhether Title YII permits such
statistically based "play in the joints" is a matter o£ controversy
that arises in various contexts. See, e.g., JJ anhart Y. 0 i.ty of Los
Angeles, 387 F. Supp. 980 (C.D. Cal.), pending on appeal, C.A. 9,
Nos. 75-2729 and 75-2807 (inYolving employee pension annuity
plans). The Equal Employment Opportunity Commission has, for
the most part, taken the position that disparate treatment of individuals on the basis of sex (or race, etc.) can be justified only
by a showing of business necessity, and not merely b~r reliance on
statistical characteristics of a protected class to which those individuals (who may or may not be typical of the class) belong. Q!l.
the other hand, a pertinent regulation of the \Yage and Hour
Di nsion of the Department of Labor under the Equal Pay Act,
77 Stat 56, as amended, 29 U.S. C. 206 (d), inter.12rets that Act a!.
permitting some flexibilit in the resent coiifext :
· on rz utzons o emp oyee enefit p ans.
e nplo~·er contributions to a plan providing insurance or similar bPnefits to employees
are equal for both men and women, no wage differential prohibited
not before the Court since both of the plans here
totally exclude pregnanc.r-1·elated disabilities from
coverage.
Petitioners in both ca~es appear to argue that the
exclusion of pregnancy l;enefits does not Yiolate Title
YII because thel·e is no clif'tinction behYeen men and
women under the e:::dnsion (sec, e.g., Lib. 1\fut. Br. in
TVetzel at ~1), suggesting that, because men do not
become pregnant, the exclusion of pregnancy benefits docs not disparately treat men and women
employees.
The fact that women have different physical attributes from men does not, without more, justify applying different rules to women employees based on those
attributes. "Discrimination is not to be tolerated
[under Title VII] under the guise of physical properties possessed by one sex." Sprrogis, supra, 444 F. 2d
at 1198. In cases where employment practices which
11
by the equal pay provisions ''ill result from such payments, cnn
though the benefits which accrue to the employees in question arc
greater for one sex than for the other. The mere fact that the employer may make unequal contributions for employees of opposite
sexes in such a situation will not, however, be considered to inclicate that the employer~s payments are in violation of section G( cl),
if the resulting benefits are equal for such employees." 2D C.F.R.
800.116(cl).
11
To this end, both Liberty :Mutual and General Electric place
primary reliance on this Court's opinion ia Geduldig v. Aiello,
supm, which held that the exclusion of pregnancy disability from
a California disability insurance. social welfare program did not
violate the Fourteenth Amendment by invidiously discriminating
against women. For the reasons set forth below (see pp. 18-22,
inj1·a), the decision in Geduldig does not establish that the practice here is not a prima facie Yiolation of Title YII.
16
17
detrimentally affected women employees were based
on physical properties of women generally, this justification has not been accepted as a barrier to the
establishment of a prima facie case but has been considered only in the context of whether the business
necessity defense justifies the sexual classification, or
the sexual effect of the particular practice involved.
For example, in Rosenfeld v. South ern Pacific Company, 444 F.2d 1219 (C.A. 9), the employer refused
to assig11 women to certain jobs, based in part on the
view that the "arduous nature of the work-related
activity renders women physically unsuited for the
jobs" ( id. at 1223). The court in Rosenfeld found the
exclusion of women to be a prima facie violation of
Title VII, and then examined the "strenuous physical
demands" defense to see if sufficient justification for
the practice was presented. See also Bowe, supra, and
Weeks, supra (weight lifting limitations applied only
to women were a prima facie violation); Cheatwood v.
Smdh Central Bell Tel. & Tel. Co., 303 F. Supp. 754
(l\f.D...A..la.) (weight lifting requirement and the
possible unavailability of restroom facilities could
not justify exclusion of women).
In sum, the classifying factor, pregnancy, is not
capable of being applied to both sexes, but is itself
sexual in nature. AccOTdingly, while nearly all disabling conditions are co1ered, one which is tied directly to sex is not. Even though the pregnancy classification-involving a dichotomy between pregnant females and non-pregnant persons-may be regarded as
a sexually "neutral'' policy, not aimed at \\omen but
only at a particular disability (see Geduldig v. Aiello,
sup1·a, 417 U.S. at 496-497, n. 20), the prima facie
case of discrimination lmder Title VII is not disproved. For the pregnancy exclusion is, nonetheless,
an instance of the application of an employment practice only to women, resulting in the denial of a benefit.
And it is settled under Title VII that when an employment practice has the practical effect of distinguishing among employees on the basis of a prohibited
factor to the substantial detriment of one such class,.
a pri11ta facie ·violation of the statute has been proved~
"Congress directed the thrust of the Act to the consequences of employment practices, not sin1ply the motivation." Griggs, supra, 401 U.S. at 432. 12
I
12
Accordingly, all circuits have accepted the view that a statistical demonstration of a substantial disparate effect, regardless
of motivation, on a characteristic covered by Section 703 (a), is a
prima facie violation of Title VII. Boston Chapter, NAACP v.
Beecher, 504 F. 2d 1017.1020, n. 5 (C.A. 1), certiorari denied, 421
U.S. 910; United States v. 1Vood, 1Vi1·e and Metal Lath. Int'l
Union, Local2ro ..i6, 471 F. 2d 408,414, n. 11 (C.A. 2), certiorari
denied, 412 U.S. 939; Commonwealth of Pennsylvania v. O'.Veill,
473 F. 2d 1029 (C.A. 3) (en bane); United States v. C & 0 Ry.
Co., 471 F. 2d 582, 586 (C.A. 4), certiorari denied, 411 U.S. 939;
United States Y. Hayes Infl Corp., 456 F. 2d 112, 120 (C.A. 5);
Danner, supm, 44 7 F. 2d at 162; United States v. lrf asomy Contractors Ass'n of Jlernphis. Inc., 497 F. 2d 871, 875 (C.A. 6);
l
United States Y. United Bro. of Carpenters and Joine1'8r
Local 169, 457 F. 2d 210 ( C.A. 7), certiorari denied, 409 U.S.
851; United States v .•Y. L. Industries, Inc., 479 F. 2d 35±, 368
(C.A. 8); United States Y. honwod;ers Local86, 443 F. 2d 544r
550-551 (C.A. 9), certiorari denied, 404 U.S. 984; Jluller v. U.S.
Steel Corp., 509 F. 2d 923, 927 (C.A. 10); Davis v. Washington,
512 F. 2d 956, 960 (C.A.D.C.), certiorari granted, :So. 74--1492
(October 6, 1975).
18
19
B. THIS CO"CRT.S DECISIOX IX GE'DULD!O Y. AIELLO DOES XOT D-\1~ A
FIXDIXG TH.\T ..1 CLASSIFICXI.'IOX B.\SED OX PREGX->XCY YIOL\U;S
TITLE YII
Both employers place primary reliance on this
Court's opinion in Gedu ldig Y. Aiello, supm, contend-·
ing that the holding of that case is "clispositiye" of
the issue before this Court (e.g., Br. of GE at 26).
The1·e are, howeyer, important differences between the
context in 'Yhich Geduldt"g, a Fourteenth Amendment,
social "'elfare case, arose, and the applicable requirements of Title VII.
Accordingly, SL""'{ courts of appeals-the only appellate courts which have considered the issue-have
stated, in holding or dictw11, that Gedulclig did not determine the validity of the pregnancy exclusion in the
context of Title VII's statutory prohibition of any
discrimination based on sex, and that such exclusion
could amount to sex discrimination in violation of
Title VII. See, in addition to the opinions of the two
courts below, G01nmunications Workers of Antericct v.
Anwrican Telephone and Telegraph Go., 513 F. 2d1024
( C.A. 2), petition for a writ of certiorari pending,
Ko. 74-1601; Satty v. Nashville Gas Go., 11 FEP
Cases 1 (C.A. 6); H 'ntchison v. Lake Oswego School
District, 519 F. 2d 961 (C.A. 9; TyleT v. Vickery, 517
F. 2d 1089 (C.A. 5).13 The two courts below have, of
13
In Satty and Hutchison the question >Vas the use of accumulated sick leave, rather than exclusion from a disability program.
However, the opinions o£ the Sixth and Ninth Circuits considered
the situation as equivalent to that presented by the exclusion of
pregnancy :from a disability program. The Fifth Circuit opinion
in Tylm' is not addressed to a sex discrimination claim, but in distinguishing between constitutional and Title VII standards :for
course, explicitly held that exclusion of pregnancy and
pregnancy-related disabilities from a general disability program does amount to unlawful sex discrimination in violation of Title VII. 14
In Gedu,ldig this Court held that the exclusion of
pregnancy and pregnancy-related disabilities from a
state-run program of employment disability insurance
for private employees does not violate the Fourteenth
Amendi11ent by invidiously discriminating against
women.
As the court of appeals decisions distinguishing
Gedulclig have noted, questions arising in the social
welfare context 15 1mder the Fourteenth ..Amendment
differ significantly from the issue of statutory construction involved here. The Fourteenth Amendment
does not prohibit a policy which, while treating people
differently, is reasonably related to a legitimate state
interest. In order to prevail a challenger has the
burden of showing that the classification is not radetermining discrimination the court in dictum discusses Geduldig
and indicates its concurrence with the other circuits that GeduZdig
does not govern a Title VII claim of discrimination regarding the
differential treatment o:f pregnancy disability. See also II olthaus v.
Compton & Sons, Inc., 51± F.2d 651 (C.A. 8). >Vhich implicitly
finds the Geduldig decision inapplicable in a Title VII context.
14
Congress has also given the question attention since this Court's
decision in Geduldig. See pp. 24-26, infra.
15
The principal cases relied on in this Court's opinion in
Geduldig specifically emphasize the :fact that they deal with social
welfare legislation. See Jefferson v. Hackney, 406 U.S. 535, 546547; Dandridge v. Williams, 397 U.S. 471,485; Williamson v. Lee
Optical Co., 3±8 U.S. 483, 489.
2D
21
tionally related to a legitimate state policy, or that it
is invidious.
Title VII on the other hand is directed not only to
deliberate or inational acts of employment discrimination. Under Title VII, a practice which is neutral
'On its face and is not either irrational or a pretext for
discrimination is nevertheless discriminatory if it has
a substantial disparate effect on a protected class. See
p. 17, supra, and cases there cited. See also Wall ace
v. Debron Corp., 494 F. 2d 674 (C.A. 8); Grreg01·y v.
Litton Systems, Inc., 472 F. 2d 631 (C.A. 9) .
Indeed, this Court in Geduldig specifically relied
( 417 U.S. at 495) on the proposition "that, consistently
with the Equal Protection Clause, a State 'may take
one step at a time, addressing itself to the phase of
the problem which seems most acute to the legislative
mind. . . . The legislature may select one phase of one
field and apply a remedy there, neglecting the
others... .' Williamson v. Lee Optical Co., 348 U .S.
483, 489 * * * ." But, in contrast to the state legislation at issue in Geduldig and in Wnliantson, Congress
1n Title VII took the broad view that all forms of
emplopnent discrimination-on the basis of race, sex,
religion and national origin- should be abolished.
Congress, in other words, decided to cover the field
comprehensively rather than take one step at a time.
That Title VII standards are more stringent than
the rational basis standard 1mder the Fourteenth
Amendment is well recognized, both by Congress and
the courts. The extension of co\erage to the states as
employers in the 1972 amendments to Title VII represented an at least implicit recognition by Congress
that Fourteenth Amendment standards, to which the
states were already subject as employers, are in some
respects less exacting than Title VII standards.
And, in several factual contexts, the differences between Title YII and Fourteenth Amendment standards have been found by the courts to require different
legal results. State protecti....-e labor laws restricting
the weight women can lift, the hours women can work,
or other conditions of \Yomen 's employment, ha\e traditionally been upheld under the Fourteenth Amendment as permissible regulation of the public health
and safety. 16 Under rritle YII, howe....-er, state maximum-hour and \Yeight-lifting la-ws for women, which
ha\e the effect of limiting their employment opportunity, ha....-e uniformly been struck down. TYeeks v.
Southen~ Bell Tel. d': rpez. Co ., supra; Rosenfeld v.
Southern Pacific Compcmy, supra. Sin1ilarly, in
Goesaert . . -. Cleary, 335 U .S. 464, the Court upheld,
against an Equal Protection attack, a state law restricting emplo}'l1lent opportunity in bartending to
women who 'vere the 'vives or daughters of male bar
16
In West Ooast II otel Oo. Y. Panish, 300 U.S. 379, 398, in upholding a state minimum w-age law for women as protectiYe legislation, the Court stated :
"[T]imes without number we haYe said that the legislature is
primarily the judge of the necessity of such an enactment, that
every possible presumption is in faYor of its validity, and that
though the court may hold views inconsistent with the wisdom of
the law, it may not be annulled unless palpably in excess of legislative power."
22
23
owners. A contrary result '"as reached under Title
VII since it could not be sho,vn that male sex was a
bona fide occupational qualification necessary to the
performance of the job. Krause '· Sacramento Inn,
479 F. 2d 988 (C.A. 9).17
In short, as the courts of appeals haye lmanimously
held, the fact that a policy has been held not to violate
the Fourteenth Amendment is not a holding that it
does not violate Title VII. Accordingly, the prima
facie cases of statutory violation shown here (see point
IA, supm,) stand lmrebuttecl by petitioners' reliance
on Geduldig.
.C. GUIDELINES ISS"GED BY THE
RESPO~SffiLE
ADJ\UXISTRATIVE
AGE~CY
PROPERLY INTERPRET TITLE VII TO PROHffiiT THE EXCLUSION OF
PREGNANCY-RELATED DISABILITY FROJ\1 AX OTHERWISE
CO~IPREHEN­
SIVE DISABILITY BENEFITS PLAN
The Equal Employment Opporhmity Commission
sex discrimination guidelines, 29 C.F.R. 1604.9 and
1604.10, explicitly provide that disabilities caused by
pregnancy are, for purposes of disability ii1sm·ance
plans, to be treated as are all other temporary disabilities. 29 C.F.R. 1604.10(b).18 The courts of appeals in
hoth Gilbert and Wetzel relied on the guidelines, inclieating that they are entitled to "great deference"
(TYetzel 7 511 F. 2d at 204; Gilbert7 Jt. Snpp. Pet. at
See also Kotch v. Bom·d of River Pilot Commissioners, 330
U.S. 552; Tyler Y. Vickery, 517 F. 2d 1089 ( C.A. 5) ; Smith v.
Troyan: 520 F. 2d 492 ( C.A. 6), petition for a writ of certiorari
})ending, No. 75--734:.
18
The EEOC Guidelines are set :forth in the Appendix, infra,
p. 33.
17
5a, n. 12). This Court has consistently paid such deference to guidelines properly issued by federal agenc-ies
given the responsibility for their promulgation. See,
e.g. Albemarle Paper Co. v. i11oody7 sztpra7 422 U.S.
at 431; Griggs v. Duke Power Co. 7 S'upm. 7 401 t.::".S. at
433-434; Udall v. Tallman, 380 U.S. 1.
Petitioner GE contends that the EEOC Guidelines
are not entitled to judicial deference because they
were not issued contemporaneously with the congressional statute they interpret, and because EEOC has,
in the past, taken an assertedly contrary view. While
there are circumstances in which such guidelines may
not be entitled to judicial deference, see, e.g., Espinoza
v. FaTah ManufactuTing Co., 414 U.S. 86, this is not a
case in which the guidelines are inconsistent with an
obvious congressional intent. 19 Further, this Court, in
Espinoza, did not state that siinply because a guideline is not issued contemporaneously with a statute,
or because an agency changes its position on an issue,
the guideline is due no deference. To the contrary, the
Court in Espinoza specifically noted that the Commission had changed its position on the issue involved
In Espinoza, this Court held that the term "national origin"
in Title VII did not prohibit discrimination on the basis of an
individual's status as an alien. The EEOC guideline had interpreted the term "national origin" to include discrimination on the
basis of citizenship. The Court held that this guideline was not
valid if it meant that there could be no discrimination on the basis
of citizenship alone, but that it could be valid in situations where
a citizenship requirement would have the effect of discrimination
on the basis of national origin, a problem not presented in
Espinoza. See 414 U.S. at 93.
19
24
25
there and stated that "[t]he Commission's more recent
interpretation of the statute in the guideline * * * is
no doubt entitled to great deference" (414 U.S. at 94)
while holding that it must nonetheless be rejected because of what the Court found to be "an obvious congressional intent" to the contrary (ibid.) / 0
Here, not only is there no indication of a legislative
intent contrary to the Commission's guidelines in the
legislative history of Title VII, 21 there is also some
recent indication that Congress does not disagree with
that interpretation. This results from the fact that
Congress recently had the opportunity to review
closely analogous guidelines promulgated by the Department of Health, Education, and \Velfare. Those
Tegulations ( 45 C.F.R. Part 86, as added, 40 Fed Reg.
2-1128), which deal with the issue of sex discrimination in federally assisted educational institutions,
were promulgated at the direction of Congress, see
Title IX of the Education Amendments of 1972, 20
U.S.C. (Supp. II) 1681, and signed by the President.
The lmderlying statute, with exceptions not here releYant, prO\ides in pertinent part that (20 U.S.Q.
(Supp. II) 1681(a)):
~o In addition, the Court in Espinoza fmmd some federal employment practices to be in conflict with the EEOC guideline
discussed in that case. 414 U.S. at 89-90. In the present case,
federal pregnancy leave practices are fully consistent with the
guideline at issue here. See p. 3, n. 1, supra.
The Office of Federal Contract Compliance of the Department
of Labor has issued guidelines concerning sex discrimination by
:federal contractors, which state that, in the ~rea of contributions
to insurance plans, an employer is not in violation of the guidelines
if his contributions are the same for both sexes, or if the resulting
benefits are equal. 41 C.F.R. 60--20.3(c). However, more recent
proposed guidelines published, but not yet adopted, by OFCC
state that pregnancy and pregnancy-related disabilities must,
under an employer's insurance plan or sick leave policy, be treated
as a temporary disability, subject to the same treatment as all
other t€mporary disabilities. 38 Fed. Reg. 35338.
21
The excerpts :from the legislative history of the proposed
Equal Rights Amendment quoted by petitioner GE (Br. 37-41)
do not purport to interpret Title VII and do not discuss the question of pr~gnancy coverage in disability insurance plans.
No person in the United States shall, on the
basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to
discrimination under any education program
activity receiYing Federal financial assistance * * *.
Section 86.57 (c) of the Regulations ( 40 Fed. Reg.
'24144) adopted to implement this provision specifically states :
(c) Pregnancy as a temporm·y dt.sability. A
recipient shall treat pregnancy, childbirth, false
pregnancy, termination of pregnancy, and recovery therefrom and any temporary disability
resulting therefrom as any other temporary disability for all job related purposes, including
commencement, duration, and extensions of
leave, payment of disability income, accrual of
seniority and any other benefit or service, and
reinstatement, and under any fringe benefit
offered to Bmployees by virtue of employment.
26
27
This regulation is essentially similar to the EEOC
guideline (Appendix, infra) at issue in this case.
Accordingly, if the HEW guideline and, similarly, the
EEOC guideline were in conflict \vith congressional
intent, Congress had the opportunity to so indicate by
withholding its approval of the HEW guideline, for 7
in the Education Amendments of 1974, Pub. L. 93-380,
88 Stat. 484, Congress required that any regulations.
implementing Title IX be submitted to both Houses
for a review period of forty-five days prior to their
implementation. 22
There is, in sum, no reason to belie-ve that the EEOC
guideline at issue here is inconsistent with congressional intent, and the courts below accordingly did not
err in relying on it.
II
siderations'' in order to disprove any intent on their
behalf to discriminate against women (see Br. of Lib.
~Iut. at 15-20; Br. of GE at 53-61). However, as
stated above (see pp. 11, 17, 20, supra), proof of discriminatory intent is not prerequisite to demonstrating a prima facie -violation of Title VII.
Under Title VII, an employer may rebut a prima
facie case in a variety of ways. See, e.g., Griggs v.
Duke Power Co., supra, 401 U.S. at 431. In Robinson
, .... Lorillard Corp, 444 F. 2d 791 (C.A. 4), the court
articulated as follows the standard for measuring an
employer's business justification for a practice \vhich
has been found to deny employment benefits to a class
of individuals protected by Title VII (id. at 798):
The test is whether there exists an overriding
legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business.
Here, ho-wever, no issue of safety or efficient operation
of the employer's primary business is involved, and
the issue of cost is the only possible defense. The
court's opinion in Lorillattd and the relevant EEOC
guideline (see 29 C.F.R. 1604.9(e)) indicate that a
showing of increased cost generally is an insufficient
defense to a prima facie violation of Title VII. 2 3 At
the very least, we submit, the inquiry in the present
THE BUSINESS CONSIDERATIONS PROFFERED BY PETITIO~ERS
DO NOT PROVIDE SUFFICIENT JUSTIFICATIO~ TO OVERCOME THE PRIJIA FAOIE VIOLATION OF TITLE VII
Petitioners in both cases offer several considerations.
to justify the exclusion of pregnancy disability from
their plans. Both state that they advert to such "con22
Several members of the House indicated that their review of
the HEW regulations would be for the purpose of determining
whether any of those regulations would be "inconsistent with the
law." See 120 Cong. Rec. H12332-12334 (daily ed. Dec. 1D, 1974:).
The pregnancy regulations were brought to the attention of the
Senate by Senator Helms (121 Cong. Rec. S9'714-9715 (daily ed.
June 5, 19'75)) and a resolution of disapproval was introduced by
him, but no action was taken on the resolution.
~3
See also Jones v. Lee Way lJfotm· F1·eight, Inc., 431 F. 2d 243
(C.A. 10), certiorari denied, 401 U.S. 954; United States Y. St.
Louis-San Francisco Ry. Oo., 464 F. 2d 301 (C. A. 8), certiorari
denied, -!09 U.S. 1107.
28
29
circumstances should be whether the adjustment necessary to eliminate the discriminatory effect of the
practice would be so financially burdensome as to
jeopardize the entire benefit plan. 24
In support of their contentions that business con-·
siderations militate against extension of disability
benefits to women, petitioners offer the following
reasons, none of which, in our judgment, suffice to
rebut the \"iolation demonstrated.
1. Both petitioners suggest that the "voluntary"·
aspect of pregnancy justifies the exclusion of pregnancy-related disability from their plans. As stated
above (see p . 12, n . 9, supra), we note that this distinction, insofar as it has any validity, has been
applied only to a disability which occurs solely in
women and not to other voluntary disabilities. Also,
the actual disability suffered (see I App. 329-330, 362
(testimony of Dr. Forrest), II App. 514 (testimony
of Dr. Hellegers)) is like all others covered by the
plans in that it generally includes hospitalization for
some time and a further period of recuperation.
Similarly, GE states (Br. 55) that the plan's benefits are "intended to soften the blow to employees of
an unintended and unexpected sickness or accident"
and attempts to distinguish pregnancy on this grotmd.
However, the GE plan does cover other "expected"
illnesses (II App. 647-648) and does not cover unexpected complications of pregnancy.
Both GE (Br. 56) and Liberty Mutual (Br. 19)
state that, due to their belief that a high percentage
of women do not return to work following childbirth,
pregnancy disability benefits would be a form of
"severance pay,'' a type of benefit not intended by the
program. However, there is no indication that when
an employee under the existing plans fails to return
to work after an absence due to disability, the company seeks to retrieve the money paid so that no
"severance pay'' is disbursed under the guise of disability benefits.
2. Petitioner GE also states that payment for
pregnancy disability would encourage women to leaye
work earlier and return later than if pregnancy disability were not covered (Br. 56) . This absence from
employment, the petitioner asserts, would be predicated on the well being of the child, particularly in the
period following delivery (ibid.).
This contention ignores the fact that it is only the
treatment of pregnancy disability which is at issue in
these cases. The decisions below do not require an employer to grant a woman leave before disability is
suffered, or following recovery from disability; any
non-disability leave would be granted by the employer
1·egardless of the outcome of the issue presented here.
rrhe precise period of actual disability which would
have to be co"\""ered by the plans would be determined
as it is for all other disabilities-by medical Yerification, and petitioners offered no evidence to indicate
that a requirement of medical verification would be
less effective when determining the period of
See also Diaz v . Pan American TVorld Airways, Inc., 442 F. 2d
385 (C.A. 5); United States v. Bethlehem Steel Om'P., 446 F. 2d
652, 662 ( C.A. 2).
24
32
33
This ignored the fact that the average actual period
of disability, which is the only basis for entitlement
to payment, was proved at trial to be six weeks, not
thirteen, twenty-three, or thirty. For this reason, the
figures presented by GE are not accurate when increased cost of covering pregnancy disability is to be
considered. 2 7
In addition to this erroneous basis, the figures provided by GE referred to nationwide cost, not the cost
to GE. Accordingly, the figures do not indicate the
extent of the financial effect that the relief requested
would have on the disability insurance plans and,
hence, certainly do not suffice to establish a business
necessity defense to the printa facie violation of Title
VII demonstrated by the plaintiffs.
CONCLUSION
In £act, these figures were based on leaves taken when no medical proof o£ disability was required (li App. 563).
27
For the foregoing reasons, the judgments below
should be affirmed.
Respectfully submitted.
RoBERT
H. BoRK,
S olicito1· Gene'fal.
J. STANLEY PoTTINGER,
Assistant Attorney General.
BRIAN
K.
LA~DSBERG,
w.
B.A.R~ETT,
~IARK L. GRoss,
wALTER
Attorneys.
W. SmAL,
Gene'ral Counsel,
JOSEPH T. EDDINS,
Associate General Counsel,
ABNER
BEATRICE RosEXBERG,
LINDA COLVARD DORIAN,
BETH L. Dox,
Attorneys7
Equal Ernployment OppoTtunity Commission.
JANUARY
1976.
APPENDIX
EEOC
GUIDELI~""ES
29 C.F.R. 1604.9. Fringe benefits:
*
*
(b) It shall be an unlawful employment
practice for an employer to discriminate between men and women with regard to fringe
benefits.
*
*
*
*
*
*
*
*
29 C.F.R. 1604.10. Employment policies relating to
:pregnancy and childbirth:
*
*
*
*
*
(b) Disabilities caused or contributed to by
pregnancy, miscarriage, abortion, childbirth,
and recovery therefrom are, for all job-related
purposes, temporary disabilities and should be
treated as such tmder any health or temporary
disability insurance or sick leave plan available
in connection with employment. Written and
lmwritten employment policies and practices
involving matters such as the commencement
and duration of leave, the availability of extensions, the accrual of seniority and other benefits
and privileges, reinstatement, and payment
lmder any health or temporary disability insurance or sick leave plan, formal or informal,
shall be applied to disability due to pregnancy
or childbirth on the same terms and conditions
as they are applied to other temporary
disabilities.
*
*
*
*
*
(35 )
U.S. GOVERNMENT PRINTiNG OFF IC i. : U7i
BOBTAIL BENCH MEMO
To:! Justice Powell
From:
Re:
Gene Corney
General Electric Co. v. Gilbert, No. 74-1589
Gilbert v. General Electric Co., No. 74-1590
The case came to the Court by a way of a joint petition for
certiorari.
The s eecific
~n
presented by the petition was
"whether an employer's exclusion of coverage for pregnancy-
____
....
....._____
related disabilities from an employee
disability income protection
plan
____. constitutes sex discrimination proscribed by Title VII of the
Civil Rt ghts Act of 1964."
~~+jbrief on the merits for plaintiffs
Gilbert et al. presents four questions.
The first question is
-------.
identical to that presented in the
and the second question--which
~·~:=t petition
c as~ conce*
for certiorari,
the role of discrim-
inatory motivation in establishing a Title Vii VII violation-- ~ f~
':JhL .s~ ei.~
LO" ~ '~ ~~
';ia;e~e~i~l4~a414l;:;y:4ft€4
·:=41;tt~d;~~
u Jt;s~fH!Pciirrt:--tl~r-.6 the first quest ion . J l'he third quest io~
Lw : 'f'lv;-
--whether
~
it was error for the DC to 9aFP,._r refuse to
consider evidence of GE's discrimination • in employment prior
4.
to 1965--see, to me to fall outside the scope of the . . "question
1obse.v11cd·.·fto... Q.!! "~ +oJ
ryresented."
The same
tlztg
is •--
gt
the fourth question, which
concerns the admissibility of Exhibit 12.
For that reason, this bobtail bench memo will not treat the third
and fourth issues raised by
I.
pla~ffs
Gilbert et al.
IS THIS CASE CONTROLLED BY GEDULDIG V. AIELLO?
The geduldig case involved a challenge to the constitutionality
of section 2626 of the California Unemployment Insurance Code, which
e
defi~
compensable disabilities
~t~g.-i~•l-.11•
~ ••
so as to exclude
any pregnancy•related illnesses or injuries sustained either
during gestation or for 28 days following birth. The program was
funded entirely by deductions from employee payroll checks, and
it operated on a "pooled r t sk" basis with the contributions computed
io
not according ~ the likelihood of disability, but at a flat rate
of
L one
e
The program was incr~ ib ly
percent of a worker 1 s salary.
c
comprehensive, exi uding an ? J~ only pregnant women and a handful
•
of people C!am '
i confined by courts to inst}futions for
drug addiction, alcholism, or sexual psychopathy.
The plan
?t~<' edur.a..1
covered voluntary ~er vl: e ~ such as hair t ~plants and s~e•z~z.-.-~
sex-change pan 1 1 t
......S"M
ss.~
'd£_._.~~~-~~s•t
1
anemia.
m?
ope rat ions, and sex- or race - related
l
~il;llls..••••-ss
eto""'~
disorders such as prostatel or sickle cell
A three-judge court invalidated the statute on the ground
that it did not bear a rational and substantial relationship to
a legitimate state purpose and thus violated the equal protection
This Court, in an opinionot authored by Justice S ~rt,
clause.
reversed.
Characterizing the program as
remedia ~
in
natur~~
since it extended coverage to employees many of whom would be
unable to afford such comprehensive
s
in ~urance
on their own, the
Court found that the state's cost justification for the pregnanycy
disability exclusion passed muster under the traditional lowertier: tequal pro~ection test.
l
Justice Stewart noted that:
Although California has created a program to insure most risks
of employment disability, it has not chosen to insure all
risks . . . . This Court has held that, consistently with the
Equal Protection Clause, a State "may take one step at a time"
. . . . [S]o long as the line drawn by the State is rationally
supportable, the courts will not interpose their judgment
as to the appropriate stopping point.
417 U.S. at 494-95.
But there is also language in Qeduldig that suggests that
~
the Court was of the view that the case did not involve sex
~
~ crimin:tio~ ~ Justice Stewart also wrote:
.
~.
~
~
There • is no risk from which men are protected and women are not.
Likewise, there is no risk from which woman are protected and men
are not.
417
u.s.
484, 496-97.
That sentence of text immediately f 11
d h
o owe w at has been
referred to in the literature simply as "footnote 20"·
The dissenting opinion to the contrary, this case is thus a far
cry from cases like Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v.
Richardson, 411 U.S. 677 (1973), involving discrimination based upon
gender as such. The California insurance program does not exclude
an_yone from benefit eligibility because of gender but merely removes
one p11ySICal cona1bon-pregnancy-from the list of compensable disabilities. While it is true that only women can become pregnant, it
does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed,
supra, and Frontiero, supra. No~egnancy is an objectively
identifiable physical condition with unique characteristics. Absent a
showing that distinctions involving pregnancy are mere pretexts de20
signed to effect an invidious discrimination against the members of
one sex or the other, lawmakers are constitutionally free to include
0[ exclude pregnancy from the coverage of legislation such as this on
any reasona ble bas1s, JUSt as wit!i respect to any other physical
condition.
The lack of identity between the excluded disability and gender
as such under this insurance program becomes clear upon the most
cursory analysis. The program divides potential recipients into two
groups-pregnant women and nonpregnant persons. While the first
group is exclusively female, the second includes members of both
sexes. The fiscal and actuarial benefits of the program thus accrue
to members of both sexes.
~e~e~Fad
GE suggests that Geduldig controls this case:
since there was
discrimination in
Geduld ~ there is no ~
discrimination in the instant case.
For a number of reasons, I
no gender- based
J_
think GE is wrong.
My own view is that Geduldig is a relevant
orecedent, but it does not control the Title VII question before
the Court.
In the first place, Geduldig did not hold that "any" discrimination based on pregnancy was not sex discrimination.
"
Nor did
,,
i t hold that every classification based on pregnancy was sex
discrimination.
,,
1'kU44
The "rule" amnnounced in Geduldig was simply that
,,
not every classification based on pregnancy is sex discrimination,
-
and that the particular classification at issue in that case
"""""bstantial relationship to the objective of
bore a fair and su6
the legislation.
Thus, the Court did not preclude a subsequent
holding that another state classification based on pregnancy would
constitute t,J. sex cilis
imij atria~
efte ofi :JGofiiee l!l!>okutttn' • elersks
discrimination.:.>
~ake
1?8!!
IUI!!tftl~ 1 'ilo:;
the following example
proposed by one of Justice Blackmun's clerks:
a state statute
suspends the driver's license of any pregnant woman because the
•• .L)
'
"
~
state fears that the temporary disability and emotional stress
accompanying a ••••• ,
Pi pregnancy will cause more accidents.
1
-
Using the standard adopted in Geduldig, I doubt the Court would
~
uphold the legislation.
A second and more imprortant
~eduldi g
the instant case and
Title VII action.
~d...._.
•••
~~~
distinction between
is that the instant
case~
is a
G u..,- Griggs v. Duke Qower C,mparur , 401
~
~c;..,..
T~Vtr
-----"
~
U.S. 424 (1971) ) held that Title VII "proscribes not only overt
discrimination but also practices that are fair in form, but
discriminatory in operation."
-
Id. at 431.
Title VII "to the consequences of employment
practices, not simply the motivation.
~1 ~
Congress directed
fig
· , "si:t ;
tp "~,\
More than that, Congress has
~
)1.~,.
placed on the employer the burden of showing that any given re-tke_.
quirement must have a manifest relationship to
GDr in question."
~
employment
-
Id. at 432 (emphasis in originial).
The standard under Title VII stands in contrast with that
applicable in equal protection challenges.
~
Washington v. Davis,
'f'
~
S.Ct.
Just last Term, in
~0~0
the Court
emphasized this difference:
As the Court of Appeals understood Title VII, employees or
applicants pr~ceeding under it need not concern themselves
with the employer's possibly discriminatory purpose but
instead may focus solely on the racially •••• ...... •••vusp
~·~'•8S differential impact of the challenged hiring or
promotion practices. This is not the constitutional rule.
We have never held that the constitutional standard for
adjudicating claims of invidious racial deicrimination is
identical to the standar~ applicable under Title VII, and
.
we decline to do so today.
S.Ct. at ~oil"} CM\I!:e•; o (e'"l~~
added).
9'
In the Court 1 s view, t l
t
• t
••••c:;t..
~ treatment
d nd us il1
'f ·
..ua
~ differential
that would pass muster under the equal protection
clause might not pass muster under Title VII:
Under Title VII, Congress provided that when hiring and •
promotion pract ices disqualifying substantially .a disproportionate numbers of blacks are challenged, discriminator ~ ­
purpose need not be proved, and that it is an
su LCLent
response to ~a.R99R•a& demonstrate some rational basis for
the . challenged practices. It is necessary, in addition,
that they be 'validated' in terms of job performance in any
one of several ways . . . . However this process proceeds,
tp it involves a more probing judicial review of, and less
deference to, the seemingly reasonable acts of administrators
and execut !lVes than is appropriate under the Constitution
where special racial impact, without ·~ discriminatory
purpose, is claimed. We are not disposed to adopt this more
rigourous standard for the purpose of applying the
Fifth and Fourteenth Amendments in cases such as this. ~6
S.Ct. ~+ '-oSI .
Given Was~ ington
I
f.
Davis, it seems to me that Geduldig is
not controlling in the instant case.
a ~
But is it is neverthe t ess
relevant precedent, since its analysis of the alleged
differential treatment was offered in the context of an insurance
to that presently at issue.
II.
AN ANALYSIS OF THE CASE UNDER THE TITLE VII FRAMEWORK
The framework for analysis of Title VII issues is well
settled.
If the plaintiff can show that a particular employment
oractice has a disproportionate impact on a protected class,
the burden of proof shifts to the employer to articulate some
legitimate, nondiscriminatory reason for the employment practice.
Grig82, supra; McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).
The first question to be confronted is whether the
olaintiffs in the instant case have made out a prima facie showing
of racial
~
discri~ ination.
At the outset, it is important to note that the factual
context of the instant case
£riggs and McDonnell.
case.
J_ differs
The case
The case involves
e
~ ther
opportunity for promotion.
~
" }:h::t_, ~ \.(
~
somewhat from cases like ~"l
judice is actually a pay
--
opportunity for employment nor
The women in this case have jobs
4
with the employer, and they are paid the same money wagel as
their male counterparts.
But they allege that the employer
treats them differently with respect to
~
fringe benefits.
The fact that this is a "pay" case in that it involves fringe
benefits does not take it out of the normal framework of analysis
for Title VII questions.
Title VII prohibits discrimination
"against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's
. . . sex . . . . "
Moreover, in discussing the elements of a
prima facie discrimination claim in the context of a re-employment
aoplication, the Court specifically noted that the prima
fac~e
proof required of a Title VII plaintiff would vary with the
factual situation.
How then does one make out a prima facie showing of sex
discrimination with respect to
~
that
~
fr~e
benefits.
~ plaintiff}-~ only two options.
It seems to me
~ eJ.w:J:Ifv
First,
-t'l can
attempt to show that males are given a fringe benefit which is
denied to females.
Take for example, the provision of health
club facilities on the premises for male employees only.
The
privilege to use the facilities without charge is a valuable
fringe benefit, and one which is denied to women.
If the plaintiff
establishes that such differential treatment exists, a Title VII
violation is made out, and the burden shifts to the employer
to establish a legitimate reason for the differential treatment.
This first aspect of proving a Title VII claim in the
fr inge benefit context is rather similar to that in the employment
••
opportunity context.
hire
-til~~
u
Suppose ._ an employer simply refuses to
women.
If the refusal is based solely on
group membership--namely, the . - , applicant is a woman--the
discrimination is irrebutably illegal.
On the other hand, if the
discrimination is based on some group-linked characteristic,
for example, the employer will not hire pregnant persons--illegal
discrimination exists unless the employer can prove an adequate
business justification.
But that is not this case.
-
alleging that men receiveJt benefits
~
~
pregJnacyJ -~
But that argument is thin at best.
The disability program at issue, when viewed in functional terms,
provides the same coverage to men and women.
It covers disability
due to broken bones, a risk to which both sexes are exposed.
And it covers disability resulting from disorders of the repro-
+o
ductive organs, another risk twhich both sexes are
expose ~~ .
For that reason, these ~ntiffs have not made out a prima
facie showing under this first alternative.
But the plaintiffs have a second
that it is ooen
~
opt ~ on.
It seems to me
prove that although the
insurance program covers the same risks for both men and women,
the relative value of such coverage is considerably less than
women than it is for
II
t l;urHI t9 e'foiloiate 1iae a&:E'I:llll£ iai> e d us
words, the particular
fringe benefit--disability insurance--results in a net lower
entitlement for women than it does for men.
It is possible that the practice at issue in this case is
discriminatory because it provides women with a net lower
?
"
entitlement.
It is not clear to me at this stage whether that
necessary condition exists.
GE has offered evidence that suggests
that women have a net gain as a result of their participation in
the disability program, while the plaintiffs have offered evidence
----------~-----------~~------~
that indicates that they have suffered a net loss.
qarilia@i~ vidence
is not clear,
Giku1a a ~
disposition of the
case~
turns on the burden of proof.
And in that regard it seems to me that the women carry the
burden.
It is certainly not sufficient for women to show that
v)~
~
they~
are denied a benefit (not given to men) that they want; to the
contrary, they must adduce
~
their curren t:J_
benefits are worth less than the current benefits received by
males.
If that evidence is adduced, and a prima fac ~e ,r showing
of discrimination is thus made out, the burden shifts to the employer
to prove an adequate business
j ~ tification.
But on that approach
the women lose the instant case.
I would note at this point that in my own view it should not
n.&..a. ...... .&. ..
J""'.....,
.&..&."""'v""""'
.Lu ...... .u..u ..." ......... t.:J
V.L
O\;OV~J.o..a..
......
_tJJ.V'-"~""""'-"~u
.a..a.o~c::::o,
c.c,.,
W11.1..L.t::
Ulc1.Lt::::,,
black females, etc.
be sufficient for a protected class to
of their
benefits~what
for other pers ~ s.
~
prove that the net value
less than the net value of benefits
As a practical matter, we don't want to --~
n
force employer/ s to calculate actuarial values, and to make
adjustments in either coverage or in money wages every time there
'{"t./a
h'v e.
are minor changes in the actuarial value of the benefits.
()
a rule would injure empt yers by forcing them to engage in extremely
burdensome
admin~rative
calculations on a regular and recurring
basis; and it would injure
e~~lerya•s
employees by depriving them
~
of certainty as to the scJ ope of their insurance coverage and the
amount of their money wages.
But at some point a court should • have the freedom to ~
;~ ~""'"
.. .-+ vet.J~;t.
determine that the differential
too large. I am sure, for
example, that a court would have no trou&le with the following
hypothetical:
Employer X has an insurance
~c
plan~
that includes
...!.::.'~ (o~
almost all di~ ~ses which, thou~ ~ tolBlacks and Whites,
are most prevalent among ~ ites, and exlcudes 'Jl •• most diseases
y,·J~
which, though a~aeft& to both Whites and Blacks, are most prevalent among Blacks.
As a result of such an insurance ~
scheme, there would no doubt be a large
~
differnential between
the value of that insurance policy for ~ites and the value of
that policy for Blacks.
Given the nature of the risks covered,
and the extent of the differential, a court could properly conclude
that a prima facie showing had been made out, and thereby shi~t
the burden of proof to the employer as to business justification.
~
Jft can be objected that it is impermissible to use such a group
averaging technique under Title VII.
For example, with respect to
employment opportunities, an employer cannot exclude all women
from a physically demanding task simply because most women are
not strong enough to perform the t. task.
But in a case such as
"""
sexj x~sserted '""M-v.J
that the woman plaintiff can easily make out a prima facil e claim-the employer discriminates on the basis of
justification fails
purpeue
&ss ~ recisely
because
v-u,.~ : l
0
the
~A8 Q~is@se
emp ~ er
has available a means to
determine which men and
which women can perform the job--a weight
~ lifting
test.
Here, however, the fact that the employer does not include
disability due to pregnancy indicates nothing about differential
impact.
The only way to determine whether women are being paid
as much as ·men is to look to the value of the fringe benefit.
AnJ
these plaintiffs have simply failed to make a showing that the
value of their existing insurance policy is less than that for
men.
As noted in a number of the briefs, the Equal Pay Act
regulations provide that it is not a violation of that act i f the
employer's insurance scheme can be characterized as follows:
U)
the employer contributes the same amount of
~
toward the
) i /I.SII'~­
premiUmS of ~ policies for males and females, yet the benefits
L
D'\..
(cit) ~
received by the two groups are not identical; ~he employer
provides the same benefits to males and females, yet the cost to
l
him of the
'7
~ policies
In my view, there should
for the two groups is not the same.
b~ • .,,.. equivalent
with respect to Title VII.
such a flexible approach to
flexibility
If the Court is willing to take
fr~e
benefit/insurance issues in
the Title VII ~ are~ , there is no violation in the instant case.
Men and women are covered for the same functional risks, and there
has been no showing that the value to females of such coverage
is considerably less than the value of such coverage to males.
On the other hand, if the Court rejects this flexible approach
and insists instead that
m&a
••si
1 1 :~an
employer must
provide, at least for purposes of Title VII,
insurance schemes
l \de"~,· ...J.. +o..)
for which the actuarial value for men is the s
~ that for
;t
women,
the business community will be thrown into a spin.
At the first contractual opportunity,
~mploye~
would shif;
instead to a system under which they made equal monetary contributions
't-
~....-.
...... ~
-
~
willing to engage in the administrative hassle that would be
involved.
Nor for that matter, would a sensible union want to
have a collective bargaining agreement under which insurance
coverage varies with
~~
changes in the relative
actuarial values for protected groups.
final note,
I want to respond to the point that the
makes that "the net result of the pregnancy
~exclusion
in these plans, therefore, is to subject only women to a substantial
risk of total loss of income because of temporary medical disability."
Brief at 12.
That same
o~ r~ation
applies
when~ employe~ has
no disability insurance scheme and merely offers his employees
-
money wages.
-·
In that case, women are subjected to a more sub-
stantial loss than are men because they run the risk of disability
due to pregnancy.
But certainly there is no employer discrimin-
ation remediable under Title VII when the employer simply fails
to provide disability insurance.
The SG's observation also
applies when the employer gives each employee a $10 per month
subsidy toward the cost of disability insurance.
Such insurance
will cost ~ more for female employees who desire pregnancy
coverage; but surely the employer has not violated Title VII
by failing to provide additional subsidies to women.
when the employer is a
Iii
7 5 al
mn!:t self- insurer
Why then,
who covers
~(/\.
the same
risks ~ men
as for women, does the pregnancy exclsuion
establish a prima facie showing of a Title VII violation.
I can
think of no reasoned answer.
III.
The CASE FOR THE PLAINTIFFS
It seems to me that there is only one way to resolve this
issue in favor of the women-plaintiffs.
The Court could say that
a prima facie Title VII violation is made out whenever
an employer
afte-
II£1F8 excludes disability due to pregnancy in an
comprehens ~e disability plan that seeks to provide
otherwise
full coverage to employees regardless of
actuarial ~
costs.
The Court would simply have to say that the fact that men and
women utrt•s
*'i
receive the "same" coverage is not determinative,
(,ft.ClA.VSt
~~ women do not receive "full" coverage in a plan that is
ostensibly designed to provide "full" coverage.
____
..................,..
There are two problems
with that approach.
The first is that
't\..eJconcludes ~there
is discrimination here because it defines
discrimination to include these circumstances.
potentially endless problems of line-drawing.
Second, it involves
For example, what
do you do with the employer whose disability plan is not comprehensive
and who is therefore not attempting to provide full coverage.
Is the exclusion of
VII
f
~
~·r~g~. .~~ disability
due to pregnancy a Title
Lk,l' ~ ~
. 1at1on
. 7,
Does it depend on the ~ ••
F-= __,
±a
~ v1o
willing to provide disability insurance.
~ ~.-tplod~
which ~
1S
Does it depend on the
proportion of disability days that are covered for men and women?
I
don't ~
have the answer to those questions, and it seems to
me that the Court should settle the question once and for all.
Justice Powell-On reflection, I should note that there is another approach to
the burden of proof question in the Gilbert case.
My initial view
was that in Title VII actions the plaintiff has the burden of
establishing a prima facie case of .._. discrimination.
On logical
grounds, it seems to me that these women plaintiffs cannot be said
to have met that burden simply by showing
wewa~it
~netzgieen
M
a:e oiRs::e it is
b zz •I 1 •
iWx·uniqpe~
•awy
u&st a
t'x that they
are denied a benefit (not given to men) which is sex-unique.
That to me is the most reasonable approach to the normal Title
VII krdilB e:E
pro~
allocation of burden of proof.
--
But there is
another approach which the Court could take which would not do a great
deal of injury to McDonnell and qriggs.
The alternative approach is
to take note of the fact that in allocating the burden of proof a
IL
court often
'-'
that one party has better access
to the relevant information.
In this case, that is GE, which pre·
~,......,
sumably keeps some records as to the benefits it pays and which
presumably should be concerned about avoiding discrimination.
one way to reach the "women win" result would be to
-....
~
Thus,
that a
Title VII case IS made out simply by showing that an employer refuse j
to cover a disability unique to one sex.
the employer
The burden then shifts to
to give a business justification.
I~
cases such as
this, the employer would attempt to show that in covering the same
risks for both men and women (viewed functionally), the net value of
the fringe benefit for men and women is about the same, and that
adding pregnany disability benefits would
favor of
the~
women.
skew the net value in
On this record one could say that GE failed to carry its
burden, and therefore the plaintiffs win.
It is worth noting,
however, that under this approach women may lose future Title VII
actions if the employer
net value of the fringe
men as it is for women.
~~ts
~
can present evidence indicating that the
~iBi'i~benefit
is about the same for
To the extent the Court is concerned about
press, this latter approach has some appeal.
It is somewhat
easier for the press to explain that exclusion of pregnancy benefits
is a prima facie Title VII violation, requiring the employer to
give a business justificationJthan for it to explain that the
mere exclusion of pregnancy disability benefits is not sex discrimination,
~
and~the
women have to prove something more.
In the endJthe only real difference between the two approaches
....
~
Placing the burden of proof
logical approach, especially given McDonnell.
is with respect to burden of proof.
-'-
on women is the most
~
But placing that burden on the employer
is the approach most likely
to convince women that the Court is sensitive to claims of sex
discrimination.
74-1589 GE v. GILBERT
74-1590 GILBERT v. GE
Argued 10/13/76
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eel
10/14/76
GE v. gilbert
Justice Powell-Here is a brief summary
l
ef~e
taff ,.J.
meets
-fo
at!l!ai~lrefcrward
way
~
Ih this case. t ile• I can c ffew -
Title VII is a mandate for an employer to condsider an individual
in an individual light,
free from any conclusions that may be drawn
from the individual's membership in one sex or the other.
For
example, suppose that a truck loading firm decides to hire ..only men because
results of a national testing program indicate that
most men can lift SO lb. parcels whereas most women cannot.
VII would bar the practice.
Title
Since some women a can lift 3 7
/
SO lb. parcels and some men cannot, the policy constitutes explicit
sex discrimination.
The employer is not hiring only strong employees;
he is hiring only strong male employees.
For purposes of Title VII, life expectancy (pensions) or illness
expectancy (medical benefits/disability benefits) should be treated
in the same fashion.
Just as an individual employer could not
penalize a woman applicant for characteristics which women in general
possess (lack of strength), but which this woman applicant cannot
be proven to possess, an individual woman cannot complain because
the employer fails to consider an attribute held by women in general
(longer life expectancy than men, for example), but which she herself
may not possess.
Thus, an employer who offers equal life insurance
benefits to men and women cannot be said to be engaging in sex
discrimination even though the fringe benefit costs him more for
men than it does for women.
In the life insurance example, there is certainly no sex discrimination if the employer offers to subsidize all employees
•
E24
$1.00/month - - • toward the cost of life insurance.
And it seems
to me silly to suggest that when the employer consolidates the
process and effects the savings available through group coverage
that somehow ,. sex discrimination comes into play.
This gets us to the 13l!i9"
interpretation of the a It
employQr
~The
females.
111
policy ui&k l!'es{'eet!
pay Ae'!:J.. Equal Pay Act.
ee
it!~
...\s
EEOC's
1:9R@i
as £k8;t_
employer must pay the . . same money wage to males and
With respect to fringe benefits, an employer does not
violate the Equal Pay Act if he
same money contribution toward fringe benefits for males and
females even though the value of the fringe benefit package
(for example life insurance) may be greater for one W sp groupJ-(females).
And an employer does not violate the Equal Pay Act if
he gives the same benefit (an $X life insurance policy) even
though it will cost him more to provide it for one group (males)
than for another.
I
It seems to me that the best way to ininter-
pret Title VII is exactly in the same fashion.
If you accept this view of Title VII, it is unnecessary to get
into the problem of calculating the net value of the fringe benefit
package for men as compared with the net value of that package for
women.
The only question in the case would be whether it is a
violation of Title VII to refuse to cover women for a risk to which
only women are exposed.
It seems to me that the answer is no.
In seeking such coverage, women are.._......
asking
not . .for a:usb enefit for
"
.
pregnant
but rather for a benefit for pregnant women.
.....
..., persons,
.,.
[This was Justice Stewart's point in
footnote 20.]
The one way out on the facts of this case is to say that
&a!~ ~
the benefit for men is "full coverage," and women are not getting the
same benefit--that is, they get less than "full coverage."
I have
no strong objection to this approach, but I do note that it causes
a
1
great deal of difficulty
when you face cases involving disability
plans with less than full coverage for men.
T~ Vll
.....
/.
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/.
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~~7~"7~~~
n
~c::.J-.
~
~~ '""'-- ~ ht~ ~~~
A,..,...,.
'I~ ~>-'~"f"
.lj-
-'7
·~e,H-1- ,. IN'4ttLI:.. ~ ~ .A ,
--~{~~~~)~ if~-4
~~.
a~.,J
s a .... ;p ~ to ~
~-- ~G;.;f~""~~
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~~~
J••••
··~'
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~ ~ ~~~~.J~~~~-~~f·
2,
.
this disparity in frequency of claims filed, then the
THIRD:
-~
There is a third complicating
~
factor.
The
L
aggregat~
data fails to take into account that men and women a.e
undoubtedly comprise different proportions of the GE work force
when subdivided by income group.
Since the
.a cost of disability
benefits is directly linked to one's present salary level (though
there is a ceiling on weekly benefits), the e1· tnih
distribution of men and women among income groups •
difference.
For example, if
men and women had the
'ri:lilil:
relative
could ·make a
~average
duration of illness and the same frequency of illness, the average
claim of ~es would not necessarily be the same as the average
~llii.~N\
~
per female.
Suppose that most women were located in the lower
oaying jobs (assuming no discrimination) and most men located in
the 4f higher paying jobs.
The average claim would be higher for
males, and so would th~ average cost per insured employee of total
benefits paid. But that doesn't indicate discrimination. The program
\ fo., WOM4oN\o a--'
(,-e &a,.tJ.J.
simply costs lessf • 1 gr ui tl
{tor nondiscriminatory reasons)
atz
most women are in the lower paying jobs.
As long as the value of
fue fringe benefit was approximately the same for men and women in
the same income category, there would be no discrimination despite the
existence of a higher average claim for males.
CONCLUJSION:
~
I have argued all along that this is a "pay" case.
The relevant question is whether the total value of gross money wage
and net value of fringe benefits for a man doing job X is the same
0..
as that for ~ woman doing job X.
So is it is important to have
a more detailed data analysis that is evident in the DC opinion.
As long as the average duration of illness is the same for men
and women on a given job, the average claim will be roughly the same,
since the claim is based on gross salary and
identical for people holding the same job.
f
....
gross sa~y is
"f!l If, as the GE
.a1.-.,...
data tend to indicate, women get ill more frequently than men,
the fringe
be~it
.nlt
female employee than per
-~
package will cost GE more per
~
in~ed ~
insured male employee.
If that is the case, I don't see how_. the &women can have a sex
discrimination claim.
Nor do I think that men would have a sex
discrimination claim under such circumstances without some additional
evidence indicating that the fringe benefit package was a mere pretext
• designed to effect sex discrimination .
....
On the datt in the record at this point, I don't see how we
can tell for sure whether men and women are getting the same
~"pay"
when they perform the same job.
It is important to know
the distribution of men and women by income category.
~c/
10/14/76
RE:
......
GE v. GILBERT
Justice Powell-We spoke briefly this morning about the cost comparison for men
and women.
FIRST:
The following summarizes my view of the record:
According to the DC, the parties entered into a stipulation
concerning certain data with respect to GE's actual experience with
male/female disability claims.
This data indicates that for 1970 the
average cost per insured male employee of total benefits paid was
$45.76 compared with $82.57 for females.
$62.08 for males and $112.91 for females.
it is fair to conclude that GE expends
The 1971 comparison was
On this data alone,
abo~$170
~
on female claims
for every $100 that it expends on male claims.
SECOND:
Is this the relevant comparison?
The plaintiffs first
y
point out that the
abo~e
cited averages are "sex-biased."
According
to the plaintifls, the stipulated record shows that the average
~uration for a male disability claim in <•Jil
.ielll
,.a..., whereas
in 1970 was 48 days
't he figure for females was 52 days.
respective figures for 1971 were 47 days and 52 days.
The
Thus,
~
plainti~fs
note, the average duration of claim is substantially the same.
If
you then divide the total money paid out on male claims by the total
l t~,J
number of male CLAIMS, you
""'",.
~lan
~
, .." <, .... ,
average claim of
!compared with an average female claim of
¥7?.rt
$111~·
s, .a3
~
$~
in 1970j
The average female
claim in 1971 was 518.71 compared with an average male claim of
$623.95.
.r the
Thus, the
~••.-. . .
r.-ul~a~8
average male claim exceeds
-,l._....~t
average female claim.
The data relied on by GE (see FIRST, supra) comes out the other
partly because women have a higher incidence
way
of c la im s .
If you
1!t•'li·-..-.;litilil4~tlilllrlll?...-a~p~p~rllilleljii•F•si.iaa.t.t'i'i-C.lll?llilimlflp~a~aciiii•li'lolii?NiMlooo:ofS!I.IM:IIIt.-,J~diil...iinilllzt:iM
a more detailed data analysis that is evident in the DC opinion.
As long as the average duration of illness is the same for men
and women on a given job, the average claim will be roughly the same,
since the claim is based on gross salary and
identical for people holding the same job.
f
gross sa~ is
ff1 If, as the GE
••=~
data tend to indicate, women get ill more frequently than men,
the fringe be1(it package will cost GE more per
.S}
~~female
in~ed ~
employee than per ..- insured male employee.
If that is the case, I don't see how_. the & women can have a sex
discrimination claim.
Nor do I think that men would have a sex
discrimination claim under such circumstances without some additional
evidence indicating that the fringe benefit package was a mere pretext
• designed to effect sex discrimination .
...
On the datt in the record at this point, I don't see how we
can tell for sure whether men and women are getting the same
~"pay"
when they perform the same job.
It is important to know
the distribution of men and women by income category.
, ...... '!"' ..............
w
~~·~~~
- ~~
~ ~..a~i/ ft.,;U4tC~
? ~ e-.~ . ~ .,...4·~·41
. ~ ~ Jll1~ L"c.£/{?J
,~
I
~ '
W~~c_ ~£'.,_~
~~~
~ #
•
~~-----~
(~~~)
~~
~~~
~~~ ·
Blackmun, J.
~·~~
-
.
The ( '!Jid' .Justice
Sir\1·art, J.
~~ ...........~
~ ""W-........:k. ~
~ ~~~~~~~~--
..
~.LrC. 4-y~
~ H-e~ i-.&.; ~~.A<4..' ~ •...J •
a........
S.-~~;P~
~~·
~;....~~~
-~~~~
~-)··~1~~~
t.J-~ ~--~w
~·
f~
~ ~ ,;~1/?tc
Rehi1quist, J.
lfp/ss 10/18/76
October 18, 1976
74-1589 GE v. Gilbert
74-1590 Gilbert v. GE
At the Conference on Friday when we took a tentative
vote on the above case, before I voted or spoke - and following
similar comments by Justice Blackmun - I advised the Conference
4IC.cA-
that (i) I owned GE stock but had sold it at or about the time
~
I cameon the Court; (ii) that Jo had owned AT&T stock, also
sold at or about the time we came on the Court, when we
disposed of stock in regulated companies; and (iii) that I
had served as a director of C&P Telephone Company) a subsidiary
of AT&T.
AT&T is not a party to this litigation, but has filed
an amicus brief supporting GE's position.
Justice Blackmun owned AT&T stock that he sold during
the summer.
I requested advice from my colleagues whether
the facts stated above suggested any reason to consider
disqualification.
not.
It was the unanimous view that they did
Once stock has been sold, a Justice is free to participate.
And, as I had previously been advised by other members of the
Court, normally a Justice does not consider disqualification
on account of amicus briefs.
In any event, I never represented
AT&T or C&P Telephone Company, although my firm has occasionally
don e work for both.
'frf
-4-:F.P.,
ss
Jr.
;§;uprtntt QfOltd . 1tf tip~ ~1n ilctt .§tntt.s
~'l'Tu.a lyin g ton .!D .
<!J.
I
:Wgl>1~
CHAMBERS OF
JUSTICE W M .J . BRENNA N , J R.
November 2, 1976
RE: No. 74-1589 & 1590 General Electric Co. v. Gilbert
Dear Bi 11:
In due course I shall circulate a dissent in the above.
Sincerely,
Mr. Justice Rehnquist
cc: The Conference
1¥-1~¥o'-
ts-ro
~~~~
The instant suit was grounded on Title VII rather
than the Equal Protection Clause, and our cases recognize
that a prima facie violation of Title VII can be established
in some circumstances upon proof that the effect of an
otherwise facially neutral plan or classification is to
discriminate against members of one class or another.
Washington v. Davis,
96 S.Ct. 2040, 2051 (1976).
See
For
example, in the context of a challeng·e, under the provisions
13
of§ 703(a)(2), to a facially neutral employment test,
this Court held that a prima facie case of discrimination
would be established if, even absent proof of intent, the
consequences of the test were "invidiously to discriminate
on the basis of racial or other impermissible classification,"
Grig&~
v. Duke Power Co., 401 U.S. 424, 431 (1971).
But
even assuming that it is not necessary in this case to
prove intent to establish a prima facie violation of
§ 703(a)(l), the respondents have not made the requisite
14
showing of gender-based effect.
7~-- J5S9
10.
& i-H5DO-Ol'l~ION
GENEJL\L ELECTHIC CO. v. GILlJEH.T
under Ti tie V IT, Since it is a finding of sex-based discrimination that must trigger. in a case such as this. the finclillgof an unlawful em ploy men t practice und er ~ 703 (a) ( 1), 42
U.S. C. ~ 200lk- 2 (a)(l)(a). Ged'll.ldio is precisely in point
in its holding that an exclusion of pregnancy from a di sabiliLy
benefit plan providing gcnE:'ra-1 coverage is not a gemler-bascd
discrimination at all.
There is no more showing in this case than there was
ih Geduldiy that the exclusion of pregnancy benefits is a
mere "pretext design to effect an invidious discrimination
against the members of one sex or the other." The Court
of Appeals expressed the view that the decision in Geduldiu
had actually turn ed on whether or not a conceded discrimination was 11 invic!ious'' or not. but we think that in so doi11g
is misread the quoted language from our opinion. As we
noted in that opinion. a distinction which on its face is not
sex related might non et heless violate the Equal Protection
Clause if it were in fact a subterfuge to accompli sh a forbid:.
den di scrimination. But we have here no question of excluding a disease or disability comparable in all other respects to covered diseases or disabilities and yet confined
to the 1nembers of one race or sex. Pregnancy is of course
confined to women. Lu t it is in other ways significa ntly
different, from the typical covered disease or di sabi lity. Tht'
District Court found that it is not a 11 dis::asc" 3t all. and
is often a voluntarily undertaken and dc>sired condition,
375 F. Supp., at 37.S, '077. \V(:' do 110t therefore infer that
the exclusion of pregnancy disability bc>nefits from petitioner's plar, is a simple pretext for discrimiuating against
women. The contrnry nrgunwnts adopted by the lower
comts and prrsented in the briefs here were largely rej ccteJ
in Geduld ig.
Even if Ult intc·nt to cliseriminnte cannot otherwi se be
shuwn, Title \'II may . i11 sol1ie cnsC':<, predicate thr c'stnb]ishment of a pri1113 f1:eit~ violation upon . proof that the!
~----~------------------------------------
74-i5S9 l~ i.J-1.5V0-0l'J~l0:\
GENEHAL ELECTJUC CO. v. GILDElrf
11
r;jfcct of all otherwise nongendcr based classification is Lo
discriminate against members of one class or allother. In
the context of a challenge. under the provisions of ~ 70~i
(a) (2), 1 '1 to a facially neutral employment test. this Court
held that a prima facie ~.:'ase of discrimination \Youlcl be
established if, even absent ()roof of intent, the consequenees
Of the test \Vere "invidiously to discriminate On the basis
of racial or other impermissible classification," Griggs v. Duke
Power Co., 401 U. S. 4.24, 431 ( 1971).
We need not decide today, however, whether the "effect
only" test which Griggs held applieable to employment tests
under § 703 (a) (2) should also apply to the somewhat different language of ~ 703 (a) (1). under which the instant. suit
is brought. Whether the necessary showing to establish a
subsection (1) violation is the "effect only" burden of Griggs,
or the more traditional burden whereunder the party alleging impermissible discrimination must demonstrate purpose
as \Veil as effect. cf. Washington v. Da1ris, 44 U. S. L. W.
4789 (Juuc 7. 1U7G), the responuents have not made tht'
requisite shov.:ing.H
u This ::mlJ:;c·ction providC's that it
pract ire for an <·mployer
~hall
be an unlawful rmploynH' nt
"(2) to limit. :;cgrPg::lte, or cla :::~if1· hi~ ernploy<·<•s in nn.1· way which
would dl'priYe or tend to depriv<' nn individual of cmplo.nw·nt opportunitic•::: or otherwise adn'r,.;l'l\' all'Pct hi:; ~latus a,; an f•mpl!l ..'' l't'. l>t'C;HI:::c·
of such indi,·idu:tl'::: l':lf'<'. color, rPiigion, ~ex, or national ongin." § 70:{
(a)(:?), 42ll. S.C. §~00\lt'-:2 (a)(2) .
11
Hc·::; pondl'nt,;, who s<·ek to c .'ahlt.<h discrimination, havt' tht• traditional rn·il litig:ttion burd!'n of (',.;!:toli"hing that thr act,; they complaJJI
of <·on"tJtutcd di,;crinttnatll>ll in ,·iolalion of Titl<• \'ll. rilbclllarlc
Pa71tT ('o . \'. Moody. -!:.?:! r. S. ·H\5, -1:?5 (Hl75); Mcl)onnc/l lJuuy/ag
Corp. Y. (;1'('('11, -Ill L'. ~- 7\J:!, ,'-.l):! (Ell:~). ln (;rioos, SII]JI'Q, th<· ourden
pJacC'd Oil t hf' l'lllplo.l't'r "t>f ,;[JOI\'lllp; 1hat :tny gl\' ('11 J'l'(JUirCIIH'III lllU::i t
hav<' a manift'"t rf'btiun.'lllp to tiH· c·utploynt<'Jit in qul'stion," -101 lJ. S.,
nt 4:~:?, did not ario:e until di,:crilllinatory (•fl'c!'t ha::; bN•n f'holl'n, Albemarle,
4:22 U. ~ . ,at. ·1:2.5.
GE::\.ETIAL ELECJHlC CO. v. GlLBEltT
..
~
, ·1
.....
As in Gcduldiu, suwa, respondents have not attcmptecl t0
·meet the burden of demonstrating a gender-based di s crimi~
natory effect resulting from the exclusion of pregnancyrelated clisabilitics from coveragc.~r' \Vhatever the uleimatPprobative value of the evidence introcluccd before the Distriet Court 011 this subject ·ru the instarit cast>, at the very
least it tended to illustrate that the selection of risks cov~­
vered by the Plan did not operate, in fact, to discrimi11atr~
against women. ~s in GeC[uldig, supra, we start from the
jndisJ)utable Laseline that "[t]he fiscal and actuarial benefits
of the program . . . accrue to members of both sexes," 417
U. S., at 497 11. 20. We ncPCl not disturb the findings of
the District Court to note that there is neither a finding,
nor was there any evidence which \\·ould support a finding,
that the financial benefits of the Plan 11 \\'0rked to discriminate against any definable group or class in terms of the
aggregate risk protectiou derived by that group or class frow
the program," id., at 496. · The Plan, in effect (and for -all
that appears), is nothing more · than an insurance package,
which covers some risks, but excludes others, see id., at
494, 496--4!17."' The "package'' going to rel evant identifiable
groups we are pres2ntly concerne·d with- General Electric 's
male and femalt~ employcc s- covt~ rs exactly the sam e categories of risk, and is facially nondiscriminatory in th e scnst;
that " [ t]berc is no ri::;k fro;n \\'hich men are prott~eted and
women are not. Likewise, there is no risk frolll which " ·omen
arc protected and m en arc not." Geduldig, 417 tJ. S., at
Ab::;c•ut a ::;bowing; of grndr·r-b: ·, t·d di :-:eriminatwn, as that term i::;
defined in Gnfuldio. or :t sho\\'inp: of g;Pudrr-lxt ~ ed rtl'ert, there' e:tn /J (•
1 :'
no Yio!ation of § 70:) (:t) (1 l . .-\ ~ a ,:z:-ii"l!Yno1r·d. \\'!' ncC'd no1 JJ.,~:'\Y
""'
'
whet IH' r pmpo ~ C' mu:-: t . in addi1 ion . .IH' dt·moll~t r:\1 cd \\'h!'ll rcliaure i~
placed on d1·moust ra 111 ~ ~~ a. gelldPr-h:t>'l'd effect . \\' c· Ita Ye no occ:t,:wn,
· thrrdon•, to <": IILI'l l." " 1'\' HI<-nrl' of tindtn !?> rl'l :ltillg; to p1Lrpo:-:l' .
10 Tlw fa('t th:tt ( ;t·n< · rall::krtn ;:·;;lr~~-'7t'Oi-chait~(' 'tTtrT,i(.t
that it i,.:, iu efTl'et. acting as an in:-: mer. ju:-:t a::< tIll' Stat1· of Californi:t
', wa.~ actin~ in Gedul!licJ. wpra, ·117 ll. :-:;.,at -102 .
-
i4-15S9 &
20
7-!-15UO-Ul'l:;\IO~
GE::\EIL\L LLECTHIC CO. v. GILBEHT
the concrpt of diseriminntion ha:-; traditionally meant, cj.
Morton v. Mancari, 4.17 F. S. 5:55 . .54n (lfJ74); Ozawa v.
Vn£ied Stales, su7n·a. 2GO U.S. J78, 193 (1022). Th<'rc~ is
rrasun for any su<'h inJerencr
· · sec• Gem::;co
324: li. S. 2<14, 2()0 (HJ15).
We t.herrforc agree with petitioner that ~ts disability
benefits plan docs not violate Tit](• VII because of its failure
: to cover pregnancy-related di~a.bilities. The judgment of
thE;! Court of Appea.ls is
surely
v.
110
Wc~llin(J,
Reversed.
The instant suit was grounded on Title VII rather
than the Equal Protection Clause, and our cases recognize
that a prima facie violation of Title VII can be established
in some circumstances upon proof that the effect of an
otherwise facially neutral plan or classification is to
discriminate against members of one class or another.
Washington v. Davis,
96 S.Ct. 2040, 2051 (1976).
See
For
example, in the context of a challeng·e, under the provisions
13
of§ 703(a)(2), to a facially neutral employment test,
this Court held that a prima facie case of discrimination
would be established if, even absent proof of intent, the
consequences of the test were "invidiously to discriminate
on the basis of racial or other impermissible classification,"
Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
But
even assuming that it is not necessary in this case to
prove intent to establish a prima facie violation of
§ 703(a)(l), the respondents have not made the requisite
14
showing of gender-based effect.
7~-15S9
lQ
& 74-11>90-0PINION
GE:\EIL\L ELECTHIC CO. v. GILBEH.T
under Title VJT, Since it. is a flllding of sex-basco uiscrimination that must tri[!;gcr. in a case such as this. the fi.nding
of an unlawful elllploymcnt practice under ~ 703 (a)(l), 4.2
U. S. C. ~ 2000<'-2 (a)(l)(a). Ocduldi(J is precisely in point
in its holding that an exclusion of prpgnaney from a disability
benefit, plan providing genera·] coyerage is not a gender-based
discrimina lion at all.
There is no more showing in this case than there wa::;
ih Geduldig that the exclusion of pregnancy benefi.ts is a
mere "pretext design lo eflect an invidious discrimination
against the members of one sex or the other." The Court
of Appeals expressed the view that the decision in Geduldig
had actually turneu on whether or not a conceded rli:;erirnination was "invidious"' or not. but we think that in so doing
is misread the quoted language from our opinion. As we
noted in that opinion. a cli s ~inction which on its faee is not
sex related might llonethelc•ss violate the Equal Protection
Clause if it \vcrc in fact a subterfuge to accomplish a forbid:.
den discrimination. But we have here no question of excluding a uiseasc or disability comparable in all oth er respects to covered diseases or disabilities and yet. confined
to the members of one race or sex. Pregnancy is of course
confineu to women. but it is in other \Yays significantly
different from the typical covered cliseasP or disability. Th!'
District Court found thai it is not a "dis::asc" at all. and
is often a voluntarily undertake al!cl desired condition,
375 F. Supp .. at 375, 377. We do not therefore infer that
the exclusion of prc·gnancy cl isabi Ii ty brncfi. ts from pt~ li­
tioner's plan is a. simple pretext. for discri1niuating against
wonwn. The contrary ar~umcnts adopted by the lo"·er
courts aud prc:;entcd in tlw brids here were largdy rejected
in Ceduldig .
Even if an intent tu discriminate cannot otherwise bf'
shown. Title \' 11 may. in sonH• case~. predicate the e:;tah]ishnwllt of a prinlfl. fncit' violation upon . proof that the~
74- l5SU <~ 74-1500-0l'I~IO~
GEJ\EIL\L .ELECTHIC CO. v. GILBEia
11
effect of an othcr\\'i sc non gcmler base d classifi ca tion is to
discriminate again st lll cmbcrs of on e class or anoth er. In
the eoutext of a chall enge. under the provisions of ~ 708
(a)(2),"1 to a faci all y neutral employment test. this Court
held th,tt a prima faci e e'a se of di scrimination would be
establish ed if, even absent ()roof of intent, th e con sequ ences
of the test \Vere "invidi o usly to discriminate on th e basis
of racial or oth er impermi ssible classification," G1iggs v. Duke
Power Co., 401 U. S. 4.24 , 431 ( 1971).
We need not decide today. however. whether the "effect
only" test which Griggs h eld applicabl e to employ1nent tests
under § 703 (a ) (2) should also apply to th e som ewhat different language of ~ 703 (a ) (1), under ,,·hich the in sta nt suit
is brought. Wh eth er th e necessary showing to establi sh a
subsection ( l) violation is th e "effect only" bun.len of Griggs,
or the more tradition a l burden whereunder th e pa rty alleging impermissible discrimination mu st demonstrate purpose
as well as effect, cf. Tra shinyton v. Da ·vis, 44 U. S. L. \Y.
4789 (Jullc 7, 197G), ihe respondents have not made tlw
requisite showing. 14
};j This
::mL:;c·ction provid e:; that it shall be an unlawful rmploynH' Ilt
practice for :m <' Ill ploycr
"(2) tu limit. :;rg n ·g: l! e, or cl a;;~ ifv hi,; employePs in an.1· _~, ·a ~· whi ch
would dt•priv r or tr nd to deprive an indi.~ · idu n l of cmpl o~ · ,u t· J l t opportunitiP:; or oth erwise nd vPr;-;r·l.l ' :dlrc t hi ~ ~ t:ltu s a;; an <·mployet• . br cau :sc·
of such individual',; rnC'e, r olur . n' ligion , ~rx , or nation ~d on~in ." § 70:{
(n)t~) , -12 U.S. C. § ::?OO<k-? ( a )( ~ ) .
11
H<•spond ent :-:, who :seek to r · aiJil-<h di:;c rin1i na tion , hal't' th l' traditiou:d twil lit iga tion bmdl'n of l''='t :1bli,; hing that th e ac t;-; th <'y compl a in
of <'Oil::'tltnt ed di ..;c rintill:tt iun in 1·iulation of Tit I<' Vii. ri/belll(l l'/1·
Pa]lel' Co . \'. M oody . -1:.! ~ r. S. -W5. -1.~5 (Hl7;J) ; McD un11 cll J) ull ula.,·
Corp. v. Grcc11, -Ill r. : -\. 7\J:! , ~()~ (1!)7:~) . In Oriaos , supra. tht• l~tml<'ll
plncPd on the t•mplo.ITI' "of "lwwmg that :tny gi-''<'ll requirl'lllent must
h:lV<' :1 Jllanif<';: t r<·i:lt iun;: hlp to thl' ('lllploynll'llt in question ," -101 lJ . S.,
111 -l:Q, did not :tri" t~ until d1;:eriminatory c·fl'eC't ha:; lw<'n ~ holl'n, Albe11wrlt·1
4:2:2 U. S., ~tt.. -t!.5,
'74-15S9 ;~ i·1--15D0-0PJ:'l10l\
GE:\'EIL\1 ELECTHIC CO. v. GILBEltT
.
:·:..
. As in Gcduldig, sur>ra, respondents have not attempted t0
·meet the burden of delllonstrating a gender-based discriminatory eficcL resulting from the exclusion of pregnancyrelated disabilities from covcrage. 1 r' \Vhatever the ult.imnte
probative value of .the evidence iutroduced before the District Court on this subject ·ill the insta1it ease, at the. very
least it tended to illustrate that the selection tJf risks (:ov.vered by the Plan did not operate, in fact, to discrimilJ[ttt'~
against women. J\s in Gec[uldig, supra, we start from Lhr
jndisputable llaseline that "[t]he fiscal and actuarial benefits
of the program . . . accrue to members of both sexes," 417
U. S., at 497 n. 20. We need not disturb the findings of
the District Court to note that there is neither a finding,
nor was th ere any evidence which v;ould support a finding,
that the financial benefits of the Plan "worked to discriminate against any definable group or class in tenns of t.he
aggregate risk protection derived by that group or class froll1
the program," id., at 496. · The Plan, in effect (and for -all
that appears), is nothing more · than an insurance packagv ,
which covers some risks, but excludes others, see id., at
494, 496-4~)7. " The "package" going to rel eva nt identifiable
groups \Ye are pres211tly concerned with-General Electric's
male nne! female employees-covers exactly the same categories of risk, and is fneia1ly nondiscriminatory in the sens<·
that "[t]here is no risk fro;n \\'hich men are proteetcd and
v.:ollJ<'Il arc not. Likewise, there is no risk from which wo1ncu
arc protected and men are not..'' Geduldig, 417 U. S., at
1
1 ~ Ab~rnf
a ~ho\\'ing of grnder-b:•· c'd di~criminatton. as that term i~
defined in Gt'duldig, or :1 1ihowin!.'; or gPnd r r-based rll'c·ct' !herr e:lll ht•
no viobt ion of § 70:1 (a) (I) . :\~ a n·:tt ~· notc·c . \\'(' ll e'l'C ii0i-W:~~u~,.;
whetlll'r JHirpo:'P mu.-<t. in addition. IJL• dc•m ottstr:ttrd \\'hen rdiancr is
pbred on dc•monst r:t lilt~ a l!l'llll(')'-h:t~t·d dl'eel. \\' c· Ita ve no ocra::;wn,
· thrrdorr, to C':tnl·:t.'" •·I'Hic·nrr of findin ~> n·Llting to purp o~e.
'"Tiw f:trt th:t t (;c·n7m'il~li~~:·-;.Ji':-;n , un'" do;;-;-;O!c:Ti:ii7f!r t1il-"'l.'lct.
that it i::;, in cfl't•('t. aC'ting a~ an in ,urer. ju"t ;t,; thr StatC' of Californ,i:t
•• wa.-> nc:tin~ in Gnlldc/icJ, wpra . .Jli U.S., at ·192.
-
i4-15S9 & 74-15\.lO---Ol'lA'IO?\
20
OEA'ETL\L .ELECTHIC CO. v. GILBEHT
the concept of di sc rimination has tradition a lly meant, cj . .
M urlon v. Man can:, 417 F. S. 5~)5. 549 ( HJ74); Ozawa v.
Unit ed Stol es, supra, 260 U. S. 178, 193 (1922). ThC'H! is
surely no reason for a11y sueh inference
· · sec U em8CO
v. Walliny, 324 U. S. 2'14, 2GO (HJ45).
'Vc therefore agree "·ith petitioner that ~ts disability
benefits plan docs not violate Title VII beca use of its failure
: to cover prcgnancy-rC'latcd cJi:;abilities. The judgment of
the Court of Appeals is
Reversed.
-
,f:nvumt (.ffcurt cf tqf 'J;.'1tti:tflt ~tat~s­
'Prts-ltingtctt, tl. <!f. ZO.i,iJ!-.;1
/
CHAI.ABERS OF
JUSTICE POTTER STEWART
November 8, 1976
No . 74-1589 and '74-1590
General Electric Co. v. Gilbert
Dear Bill,
].
I am glad to join your opinion for the
Court in these cases.
Sincerely yours,
r)
\
\ . >r
/
Mr. Justice Relmquist
Copies to the Conference
(!
.:§u:pumt CQ:ou:d of t~t ~nittb ,:§taus
~asJrington, ttl. CQ:. 2.0,?JI..;t
CHAMBERS OF
JUSTICE BYRON R . WHITE
November 10, 1976
Re:
Nos. 74-1589 & 74-1590 - General Electric Co.
v. Gilbert
Dear Bill:
Please join me.
Sincerely,
I
A~~
/
i
Mr. Justice Rehnquist
Copies to Conference
J
<!fonri
~ltprttttt
of t4t ~tt~ ~taft•
~uJri:nght~ ~. a}. 2ll~,..;l
CHAMB E RS OF
THE CHIEF JUSTICE
November 22, 1976
Re. No. 74-1589 and 74-1590 General Electric Co. v. Gilbert
Dear Bill:
I join your opinion dated November 8.
~gards,
Mr. Justice Rehnquist
cc:
The Conference
~uprtutt
Q}au:d af tlrt ,.ni:ttb ;§tltttll
-ruttrhtgLm. ~. <!f. 2!l.;tJ-1~
CHAMBER S OF
JUSTICE WILLIAM H . REHNQUIST
November 22, 1976
Re:
Nos. 74-1589 and 74-1590 - General Electric Co.
v. Gilbe r t , et al .
Dear Harry:
I have received your letter of November 22nd,
suggesting five cmnges in the draft opinion in these
cases. While your letter doesn't spell out the purpose
of the proposed changes, I gather that the first suggestion
would permit a Court to find in some other case that
exclusion of pregnancy benefits, or some other differentiated
treatment with respec~ to pregnancy, would be a discrimination under Title VII if some sort of additional facts were
shown.
It seems to me that the present draft, with its
language relating to pretext and subterfuge further along
on page 10, does allow for a finding of a Title VII violation
where pregnancy exclusion is a pretext, but the reason
for doing so would be the pretext and not the exclusion
of pregnancy benefits.
Your third, fourth, and fifth suggestions, designe d
as they apparently are to restrict the test of violation
to "effect" alone, run more of a risk than I want to do
of deciding sub silentio that effect alone is suff1cient
under all of the various provisions of Title VII.
- 2 If I have not properly apprehended the reasons for the
suggestions, I will be glad to take a second look; if I am
correct in my ascription of reasons, I would prefer not to
make the changes you suggest.
Sincerely,
Mr. Justice Blackmun
Copies to:
The
Mr.
Mr.
Mr.
Chief Justice
Justice Stewart
Justice White
Justice Powell~
~
,iuprmtt C!Jonrlttf tlrr~~ ~hdrg
JiMJringLnt. ~. <!J. 2!lgl'!-~
CHAMBERS OF
.JUSTICE POTTER STEWART
November 22, 1976
Re: No. 74-1589 - General Electric Co. v. Gilbert
No. 74-1590 - Gilbert v. General Electric Co.
Dear Bill,
It seems to me that Harry Blackmun's suggestions are
all good ones, and I hope you will be agreeable to adopting
them.
Sincerely yours,
Mr. Justice Rehnquist
Copy to Mr. Justice White
Mr. Justice Blackmun
. . . . . -M r. Justice Powell
.§u:p-umt ~ottrl ttf tqt ~h .§hdtg
·~Jihu~Irittgttttt. 19. ~· 2!lgtJ!.'
CHAMBERS OF'
JUSTICE HARRY A. BLACKMUN
Noven"lber ZZ, 1976
Re: No. 74-1539 - General Electric Co. v. Gilbert
No. 74-1590 - Gilbert v. General Electric Co.
Dear Bill:
! have some reservations about your recirculation o!
November 8. You may not wish to make changes, but ii the
following could be effected I would join:
ty(L
thcq ~{J
1. Change the last few v;ords of the paragraph at
top of page 10 from ~ ; is not a gender-based dhcrhnination at
to uis not • .!?.£!. se, a gonder-"based discriinint-.tion. ''
~.u ~ ·
2. Generally t·everse the order o! the firet two sentences of the first paragraph beginning on page 10. and eliminate
the balance of the paragraph. As so revised, the paragraph
would read:
The Court of Appeals expressed the view that
the decision in Geduldig had actually turned on
whether or not .a conceded diccrlmination wae
"invidious_ H but we think that in so doing it misread the quoted language from our opinion. There
is no more showing in this case than there was in
Gcdulilig that the exclusion of pregnancy benefits
is a mere ~' pretext designed to effect c:..n invidious
<iis c:rimination against the n1.embere of one sex
the other. "
_..__.p fo
1"
~
~_.yw'
~ ~
rJ.~~·
Vf4~ ~
~"'~~~
.~
v~~~
fA~~~{
~c.,'..'<£
?-~·
3. On page 11, 1
, change the s entence to eliminate ~
tlle cite to McDonnol so that it reads along the lines~ "Assumi~ ~
thnt such roof of e!fect h sufficient, respondents have not made
tho requisite showing o gender-Lased effects. 14/tt
~1V'
Y ()
- 2-
4. On page 14. footnote 18. delete the last sentence and
the cite to Jefferson.
s. On page 19. 3rd paragraph, 7th line. change the sentence to read "we should not readily ·infer that it meant to obviate.
as the EEOC guideline does. the necessity of a demonstration of a
discriminatory effect. "
If these proposed changes are not acceptable. I shall write
a zhort separate concu.rrence joining the judgment. You probably
will have a court in any event.
Sincerely.
Mr. Justice Rehnquist
cc; Mr. Justice Stewart
Mr• .Justice V.."bite
/
lA.r. .Tustiee Powell v
.hvrmtt afouri of tit~ ~b .htttg
.MJringttttt. ~. af. 2.tl.;t~~
CHAMBERS OF
JUSTICE HARRY A . BLACKMUN
o
n-:tb
11"
te
-z4. On paae 14., footaete 18, delete the la•t sentence and
the cite to Jtf{ereon.
5. On paae 19, SN paraaraph, 7th line, chan1• the ••a·
tence to read n._. ehoalcl DDt read.Uy lDfer that it meant to obriate.
•• the E OC auW.llne doe•. tiM aeceaaity of a demoaatration of a
diacrimillatory efiect. ''
the••
11.
pr.,.aecl daaa&•• an not acceptable, I ahallwrlte
a ehort aeparat. c:Oilcunaee joir•l•l the judcment. You probably
wW have a c:CNrt in any eftllt.
Sincerely,
ec; Mr. Juatlce Stewart
r. lutice ·bite
r. Iuetlce Powell ~
,.
.,
,;I
;'l'li
·~,-:
!,
r
,
'f
,,
,,'
~
...
No. 74-1589
No. 74-1590
-
General Electric Co. v. Gilbert
Gilbert v. General Electric Co.
MR. JUST ICE BLACKMUN, concurring.
I join the judgmen.t of the Court and concur in its opinion
insofar as it holds (a) that General Electric's exclusion of disability
due to pregnancy is not, per se, a violation of ·§ 703(a)(l) of Title VII;
(b) that the plaintiffs in this case therefore had at least the burden of
proving discriminatory effect; and (c) that they failed in that proof.
I do not join any inference or suggestion in the Court's opinion-- if
any such inference or suggestion is there --that effect may never
be a controlling factor in a Title VII case, or that Griggs v. Duke
Power Co., 401 U.S. 424 (1971), is no longer good law.
~ourt
.of tlp• 'Pnitdt ,:%it(ltt.!.l
'itlctslpngtou, gl. ~· 2.0b))!-6J
.;%inprtntl'
CHAMBERS OF
November 23 , 197 6
.JUST I CE THURGOOD MARSHALL
Re : No . 74-1589 --General Electric Co . v. Gilber t
Dear Bill:
Please join me .
Sincerely,
~
T. M .
Mr . Justice Brennan
cc : The Conference
<!ftmrl ttf t4t ~nitt~ _ifat.tg
'Jlt~.slthtgbm. ~. <!f. 2.1lgf)!._;t
.:§ltp"rtlm
CHAMBERS OF
JUSTICE HARRY A . BLACKMUN
November 23, 1976
Re:
No. 74-1589
No. 74-1590
-
J
General Electric Co. v. Gilbert
Gilbert v. General Electric Co.
Dear Bill:
Herewith for your information is a copy of a short concurrence I am sending today to the Printer. The printed copy,
I assume, will be around very shortly.
Sincerely,
Mr. Justice Rehnquist
cc:
The Conference
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