This class action was brought by respondents challenging as
violative of Title VII of the Civil Rights Act of 1964 the
disability plan of petitioner. Under the plan, petitioner provides
nonoccupational sickness and accident benefits to all its
employees, but disabilities arising from pregnancy are excluded.
The District Court following trial held that the exclusion
constituted sex discrimination in violation of Title VII. The Court
of Appeals affirmed, finding that the intervening decision in
Geduldig v. Aiello, 417 U. S. 484,
wherein this Court held that disparity in treatment between
pregnancy-related and other disabilities was not sex discrimination
under the Equal Protection Clause of the Fourteenth Amendment, was
not applicable in a Title VII context. Under § 703(a)(1) of that
Title it is an unlawful employment practice for an employer to
discriminate against any individual with respect to compensation
because of that individual's sex.
Held: Petitioner's disability benefits plan does not
violate Title VII because of its failure to cover pregnancy-related
disabilities. Pp.
429 U. S.
133-146.
(a) The plan, which is strikingly similar to the one in
Geduldig,
"does not exclude anyone from benefit eligibility because of
gender, but merely removes one physical condition -- pregnancy --
from the list of compensable disabilities. . . . Absent a showing
that distinctions involving pregnancy are mere pretexts designed to
effect an invidious discrimination against the members of one sex
or the other, lawmakers are constitutionally free to include or
exclude pregnancy from the coverage of legislation such as this on
any reasonable basis, just as with respect to any other physical
condition."
417 U.S. at
417 U. S.
496-497, n. 20. Since it is a finding of sex-based
discrimination that, in a case like this, must trigger the finding
of an unlawful employment practice under § 703(a)(1),
Geduldig is precisely in point in its holding that an
exclusion of pregnancy from a disability benefits plan like
petitioner's providing general coverage is not a gender-based
discrimination at all. Pp.
429 U. S. 133-136.
(b) There was no more showing here than there was in
Geduldig that
Page 429 U. S. 126
the exclusion of pregnancy disability benefits from petitioner's
plan was a pretext for discriminating against women, since
pregnancy, though confined to women, is in other ways significantly
different from the typical covered disease or disability. P.
429 U. S.
136.
(c) Gender-based discrimination does not result simply because
an employer's disability benefits plan is less than all-inclusive.
Petitioner's plan is no more than an insurance package covering
some risks but excluding others, and there has been no showing that
the selection of included risks creates a gender-based
discriminatory effect. Pp.
429 U. S. 136-140.
(d) A 1972 guideline of the Equal Employment Opportunity
Commission (EEOC) relied upon by respondents, not only conflicts
with earlier EEOC pronouncements, but is at odds with the
consistent interpretation of the Wage and Hour Administrator with
respect to § 703(h) of Title VII, as amended by the Equal Pay Act,
and the legislative history of Title VII, both of which support the
"plain meaning" of the language used by Congress when it enacted §
703(a)(1). Pp.
429 U. S.
140-145.
519 F.2d 661, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, and POWELL, JJ., joined, and in
which BLACKMUN, J., joined in part. STEWART, J., filed a concurring
statement,
post, p.
429 U. S. 146.
BLACKMUN, J., filed a statement concurring in part,
post,
p.
429 U. S. 146.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
429 U. S. 146.
STEVENS, J., filed a dissenting opinion,
post, p.
429 U. S.
160.
Page 429 U. S. 127
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner, General Electric Co. [
Footnote 1] provides for all of its employees a disability
plan which pays weekly nonoccupational sickness and accident
benefits. Excluded from the plan's coverage, however, are
disabilities arising from pregnancy. Respondents, on behalf of a
class of women employees, brought this action seeking,
inter
alia, [
Footnote 2] a
declaration
Page 429 U. S. 128
that this exclusion constitutes sex discrimination in violation
of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as
amended, 42 U.S.C. § 2000e
et seq. The District Court for
the Eastern District of Virginia, following a trial on the merits,
held that the exclusion of such pregnancy-related disability
benefits from General Electric's employee disability plan violated
Title VII,
375 F.
Supp. 367. The Court of Appeals affirmed, 519 F.2d 661, and we
granted certiorari, 423 U.S. 822. We now reverse.
I
As part of its total compensation package, General Electric
provides nonoccupational sickness and accident benefits to all
employees under its Weekly Sickness and Accident Insurance Plan
(Plan) in an amount equal to 60% of an employee's normal
straight-time weekly earnings. These payments are paid to employees
who become totally disabled as a result of a nonoccupational
sickness or accident. Benefit payments normally start with the
eighth day of an employee's total disability (although if an
employee is earlier confined to a hospital as a bed patient,
benefit payments will start immediately), and continue up to a
maximum of 26 weeks for any one continuous period of disability or
successive periods of disability due to the same or related causes.
[
Footnote 3]
The individual named respondents are present or former hourly
paid production employees at General Electric's plant in Salem, Va.
Each of these employees was pregnant during
Page 429 U. S. 129
1971 or 1972, while employed by General Electric, and each
presented a claim to the company for disability benefits under the
Plan to cover the period while absent from work as a result of the
pregnancy. These claims were routinely denied on the ground that
the Plan did not provide disability benefit payments for any
absence due to pregnancy. [
Footnote
4] Each of the respondents thereafter filed charges with the
Equal Employment Opportunity Commission (EEOC) alleging that the
refusal of General Electric to pay disability benefits under the
Plan for time lost due to pregnancy and childbirth discriminated
against her because of sex. Upon waiting the requisite number of
days, the instant action was commenced in the District Court.
[
Footnote 5] The complaint
asserted a violation of Title VII. Damages were sought, as well as
an injunction directing General Electric to include pregnancy
disabilities within the Plan on the same terms and conditions as
other nonoccupational disabilities.
Page 429 U. S. 130
Following trial, the District Court made findings of fact and
conclusions of law, and entered an order in which it determined
that General Electric, by excluding pregnancy disabilities from the
coverage of the Plan, had engaged in sex discrimination in
violation of § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1).
The District Court found that normal pregnancy, while not
necessarily either a "disease" or an "accident," was disabling for
a period of six to eight weeks; [
Footnote 6] that approximately "[t]en per cent of
pregnancies are terminated by miscarriage, which is disabling";
[
Footnote 7] and that
approximately 10% of pregnancies are complicated by diseases which
may lead to additional disability. [
Footnote 8] The District Court noted the evidence
introduced during the trial, a good deal of it stipulated,
concerning the relative cost to General Electric of providing
benefits under the Plan to male and female employees, [
Footnote 9] all of which indicated
that, with pregnancy-related disabilities excluded, the cost of the
Plan to General Electric per female employee was at least as high
as, if not substantially higher than, the cost per male employee.
[
Footnote 10]
Page 429 U. S. 131
The District. Court found that the inclusion of
pregnancy-related disabilities within the scope of the Plan would
"increase G.E.'s [disability benefits plan] costs by an amount
which, though large, is at this time undeterminable." 375 F. Supp.
at 378. The District Court declined to find that the present
actuarial value of the coverage was equal as between men and women,
[
Footnote 11] but went on to
decide that even
Page 429 U. S. 132
had it found economic equivalence, such a finding would not in
any case have justified the exclusion of pregnancy-related
disabilities from an otherwise comprehensive nonoccupational
sickness and accident disability plan. Regardless of whether the
cost of including such benefits might make the Plan more costly for
women than for men, the District Court determined that "[i]f Title
VII intends to sexually equalize employment opportunity, there must
be this one exception to the cost differential defense."
Id. at 383.
The ultimate conclusion of the District Court was that
petitioner had discriminated on the basis of sex in the operation
of its disability program in violation of Title VII,
id.
at 385-386. An order was entered enjoining petitioner from
continuing to exclude pregnancy-related disabilities from the
coverage of the Plan, and providing for the future award of
monetary relief to individual members of the class affected.
Petitioner appealed to the Court of Appeals for the Fourth Circuit,
and that court by a divided vote affirmed the judgment of the
District Court.
Between the date on which the District Court's judgment was
rendered and the time this case was decided by the Court of
Appeals, we decided
Geduldig v. Aiello, 417 U.
S. 484 (1974), where we rejected a claim that a very
similar disability program established under California law
violated the Equal Protection Clause of the Fourteenth Amendment
because that plan's exclusion of pregnancy disabilities represented
sex discrimination. The majority of the Court of Appeals felt that
Geduldig was not controlling because it
Page 429 U. S. 133
arose under the Equal Protection Clause of the Fourteenth
Amendment, and not under Title VII, 519 F.2d at 666-667. The
dissenting opinion disagreed with the majority as to the impact of
Geduldig, 519 F.2d at 668-669. We granted certiorari to
consider this important issue in the construction of Title VII.
[
Footnote 12]
II
Section 703(a)(1) provides in relevant part that it shall be an
unlawful employment practice for an employer
"to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin,"
42 U.S.C. § 2000e 2(a)(1).
While there is no necessary inference that Congress, in choosing
this language, intended to incorporate into Title VII the concepts
of discrimination which have evolved from court decisions
construing the Equal Protection Clause of the Fourteenth Amendment,
the similarities between the congressional language and some of
those decisions surely indicate that the latter are a useful
starting point in interpreting the former. Particularly in the case
of defining the term "discrimination," which Congress has nowhere
in Title VII defined, those cases afford an existing body of law
analyzing and discussing that term in a legal context not wholly
dissimilar to the concerns which Congress manifested in enacting
Title VII. We think, therefore, that our decision in
Geduldig
v. Aiello, supra, dealing with a strikingly similar disability
plan, is quite relevant in determining whether or not the pregnancy
exclusion did discriminate on the basis of sex. In
Geduldig, the disability insurance system was
Page 429 U. S. 134
funded entirely from contributions deducted from the wages of
participating employees, at a rate of 1% of the employee's salary
up to an annual maximum of $85. In other relevant respects, the
operation of the program was similar to General Electric's
disability benefits plan,
see 417 U.S. at
417 U. S.
487-489.
We rejected appellee's equal protection challenge to this
statutory scheme. We first noted:
"We cannot agree that the exclusion of this disability from
coverage amounts to invidious discrimination under the Equal
Protection Clause. California does not discriminate with respect to
the persons or groups which are eligible for disability insurance
protection under the program. The classification challenged in this
case relates to the asserted underinclusiveness of the set of risks
that the State has selected to insure."
Id. at 494. This point was emphasized again, when later
in the opinion we noted:
"[T]his 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 anyone from benefit eligibility because of
gender, but merely removes one physical condition -- 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. Normal pregnancy is an objectively
identifiable physical condition with unique characteristics. Absent
a showing that distinctions involving pregnancy are mere pretexts
designed to effect an invidious discrimination against the members
of one sex or the other, lawmakers are constitutionally free to
include or exclude pregnancy from the coverage of legislation such
as this on any reasonable
Page 429 U. S. 135
basis, just a with 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."
Id. at
417 U. S.
496-497, n. 20.
The quoted language from
Geduldig leaves no doubt that
our reason for rejecting appellee's equal protection claim in that
case was that the exclusion of pregnancy from coverage under
California's disability benefits plan was not in itself
discrimination based on sex.
We recognized in
Geduldig, of course, that the fact
that there was no sex-based discrimination as such was not the end
of the analysis, should it be shown
"that distinctions involving pregnancy are mere pretexts
designed to effect an invidious discrimination against the members
of one sex or the other,"
ibid. But we noted that no semblance of such a showing
had been made:
"There is no evidence in the record that the selection of the
risks insured by the program worked to discriminate against any
definable group or class in terms of the aggregate risk protection
derived by that group or class from the program. There is no risk
from which men are protected and women are not. Likewise, there is
no risk from which women are protected and men are not "
Id. at
417 U. S.
496-497.
Since gender-based discrimination had not been shown to exist
either by the terms of the plan or by its effect, there was no need
to reach the question of what sort of standard would govern our
review had there been such a showing.
See Frontiero v.
Richardson, 411 U. S. 677
(1973);
Reed v. Reed, 404 U. S. 71
(1971).
Page 429 U. S. 136
The Court of Appeals was therefore wrong in concluding that the
reasoning of
Geduldig was not applicable to an action
under Title VII. Since it is a finding of sex-based discrimination
that must trigger, in a case such as this, the finding of an
unlawful employment practice under § 703(a)(1),
Geduldig
is precisely in point in its holding that an exclusion of pregnancy
from a disability benefits plan providing general coverage is not a
gender-based discrimination at all.
There is no more showing in this case than there was in
Geduldig that the exclusion of pregnancy benefits is a
mere "pretex[t] designed 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
Geduldig had
actually turned on whether or not a conceded discrimination was
"invidious," but we think that, in so doing, it misread the quoted
language from our opinion. As we noted in that opinion, a
distinction which, on its face, is not sex-related might
nonetheless violate the Equal Protection Clause if it were in fact
a subterfuge to accomplish a forbidden discrimination. 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 members of one race or sex. Pregnancy is, of
course, confined to women, but it is in other ways significantly
different from the typical covered disease or disability. The
District Court found that it is not a "disease" at all, and is
often a voluntarily undertaken and desired condition, 375 F. Supp.
at 375, 377. We do not therefore infer that the exclusion of
pregnancy disability benefits from petitioner's plan is a simple
pretext for discriminating against women. The contrary arguments
adopted by the lower courts and expounded by our dissenting
Brethren were largely rejected in
Geduldig.
The instant suit was grounded on Title VII, rather than the
Equal Protection Clause, and our cases recognize that
Page 429 U. S. 137
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.
See Washington v. Davis,
426 U. S. 229,
426 U. S.
246-248 (1976). For example, in the context of a
challenge, under the provisions of § 703(a)(2), [
Footnote 13] 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,
401 U. S. 431
(1971). Even assuming that it is not necessary in this case to
prove intent to establish a
prima facie violation of §
703(a)(1),
but cf. McDonnell Douglas Corp. v. Green,
411 U. S. 792,
411 U. S.
802-806 (1973), the respondents have not made the
requisite showing of gender-based effects. [
Footnote 14]
As in
Geduldig, respondents have not attempted to meet
the burden of demonstrating a gender-based discriminatory effect
resulting from the exclusion of pregnancy-related disabilities from
coverage. [
Footnote 15]
Whatever the ultimate
Page 429 U. S. 138
probative value of he evidence introduced before the District
Court on this subject in the instant case, at the very least, it
tended to illustrate that the selection of risks covered by the
Plan did not operate, in fact, to discriminate against women. As in
Geduldig, we start from the indisputable baseline that
"[t]he fiscal and actuarial benefits of the program . . . accrue to
members of both sexes," 417 U.S. at
417 U. S. 497
n. 20. We need not disturb the findings of the District Court to
note that neither is there a finding, nor was there any evidence
which would support a finding, that the financial benefits of the
Plan
"worked to discriminate against any definable group or class in
terms of the aggregate risk protection derived by that group or
class from the program,"
id. at
417 U. S. 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
417 U. S. 494,
417 U. S.
496-497. [
Footnote
16] The "package" going to relevant identifiable groups we are
presently concerned with -- General Electric's male and female
employees -- covers exactly the same categories of risk, and is
facially nondiscriminatory in the sense that
"[t]here is no risk from which men are protected and women are
not. Likewise, there is no risk from which women are protected and
men are not."
Id. at
417 U. S.
496-497. As there is no proof that the package is in
fact worth more to men than to women, it is impossible to find any
gender-based discriminatory effect in this scheme simply because
women disabled as a result of pregnancy do not receive benefits;
that is to say, gender-based discrimination does not result simply
because an employer's disability benefits plan is less
Page 429 U. S. 139
than all-inclusive. [
Footnote
17] For all that appears, pregnancy-related disabilities
constitute an additional risk, unique to women, and the failure to
compensate them for this risk does not destroy the presumed parity
of the benefits, accruing to men and women alike, which results
from the facially evenhanded inclusion of risks. To hold otherwise
would endanger the common sense notion that an employer who has no
disability benefits program at all does not violate Title VII even
though the "underinclusion" of risks impacts, as a result
Page 429 U. S. 140
of pregnancy-related disabilities, more heavily upon one gender
than upon the other. [
Footnote
18] Just as there is no facial gender-based discrimination in
that case, so too there is none here.
III
We are told, however, that this analysis of the congressional
purpose underlying Title VII is inconsistent with the guidelines of
the EEOC, which, it is asserted, are entitled to "great deference"
in the construction of the Act,
Griggs, 401 U.S. at
401 U. S.
433-434;
Phillips v. Martin Marietta Corp.,
400 U. S. 542,
400 U. S. 545
(1971) (MARSHALL, J., concurring). The guideline upon which
respondents rely most heavily was promulgated in 1972, and states
in pertinent part:
"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 under any health or temporary disability insurance
or sick leave plan available
Page 429 U. S. 141
in connection with employment. . . . [Benefits] shall be applied
to disability due to pregnancy or childbirth on the same terms and
conditions as they are applied to other temporary
disabilities."
29 CFR § 1604.10(b) (1975). [
Footnote 19]
In evaluating this contention, it should first be noted that
Congress, in enacting Title VII, did not confer upon the EEOC
authority to promulgate rules or regulations pursuant to that
Title.
Albemarle Paper Co. v. Moody, 422 U.
S. 405,
422 U. S. 431
(1975). [
Footnote 20] This
does not mean that EEOC guide lines are not entitled to
consideration in determining legislative intent,
see Albemarle,
supra; Griggs v. Duke Power Co., supra at
401 U. S.
433-434;
Espinoza v. Farah Mfg. Co.,
414 U. S. 86,
414 U. S. 94
(1973). But it does mean that courts properly may accord less
weight to such guidelines than to administrative regulations which
Congress has declared shall have the force of law,
see Standard
Oil Co. v. Johnson, 316 U. S. 481,
316 U. S. 484
(1942), or to regulations which under the enabling statute may
themselves supply the basis for imposition of liability,
see,
e.g., § 23(a), Securities Exchange Act of 1934, 15 U.S.C. §
78w(a). The most comprehensive statement of the role of
interpretative rulings such as the EEOC guidelines is found in
Skidmore v. Swift & Co., 323 U.
S. 134,
323 U. S. 140
(1944), where the Court said:
"We consider that the rulings, interpretations and opinions of
the Administrator under this Act, while not
Page 429 U. S. 142
controlling upon the courts by reason of their authority, do
constitute a body of experience and informed judgment to which
courts and litigants may properly resort for guidance. The weight
of such a judgment in a particular case will depend upon the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements,
and all those factors which give it power to persuade, if lacking
power to control."
The EEOC guideline in question does not fare well under these
standards. It is not a contemporaneous interpretation of Title VII,
since it was first promulgated eight years after the enactment of
that Title. More importantly, the 1972 guideline flatly contradicts
the position which the agency had enunciated at an earlier date,
closer to the enactment of the governing statute. An opinion letter
by the General Counsel of the EEOC, dated October 17, 1966,
states:
"You have requested our opinion whether the above exclusion of
pregnancy and childbirth as a disability under the long-term salary
continuation plan would be in violation of Title VII of the Civil
Rights Act of 1964."
"In a recent opinion letter regarding pregnancy, we have
stated,"
"The Commission policy in this area does not seek to compare an
employer's treatment of illness or injury with his treatment of
maternity, since maternity is a temporary disability unique to the
female sex and more or less to be anticipated during the working
life of most women employees."
"Therefore, it is our opinion that, according to the facts
stated above, a company's group insurance program which covers
hospital and medical expenses for the delivery of employees'
children, but excludes from its long-term salary continuation
program those disabilities which result from pregnancy and
childbirth would not be in violation of Title VII."
App. 721-722
Page 429 U. S. 143
A few weeks later, in an opinion letter expressly issued
pursuant to 29 CFR § 1601.30 (1975), the EEOC's position was
that
"an insurance or other benefit plan may simply exclude maternity
as a covered risk, and such an exclusion would not, in our view, be
discriminatory."
App. 735.
We have declined to follow administrative guidelines in the past
where they conflicted with earlier pronouncements of the agency.
United Housing Foundation, Inc. v. Forman, 421 U.
S. 837,
421 U. S.
858-859, n. 25 (1975);
Espinoza v. Farah Mfg. Co.,
supra at
414 U. S. 92-96.
In short, while we do not wholly discount the weight to be given
the 1972 guideline, it does not receive high marks when judged by
the standards enunciated in
Skidmore, supra.
There are also persuasive indications that the more recent EEOC
guideline sharply conflicts with other indicia of the proper
interpretation of the sex-discrimination provisions of Title VII.
The legislative history of Title VII's prohibition of sex
discrimination is notable primarily for its brevity. Even so,
however, Congress paid especial attention to the provisions of the
Equal Pay Act, 29 U.S.C. § 206(d), [
Footnote 21] when it amended § 703(h) of Title VII by
adding the following sentence:
"It shall not be an unlawful employment practice under
Page 429 U. S. 144
this subchapter for any employer to differentiate upon the basis
of sex in determining the amount of the wages or compensation paid
or to be paid to employees of such employer if such differentiation
is authorized by the provisions of section 206(d) of Title 29."
42 U.S.C. § 2000e-2(h). This sentence was proposed as the
Bennett Amendment to the Senate bill, 110 Cong.Rec. 13647 (1964),
and Senator Humphrey, the floor manager of the bill, stated that
the purpose of the amendment was to make it "unmistakably clear"
that
"differences of treatment in industrial benefit plans, including
earlier retirement options for women, may continue in operation
under this bill, if it becomes law,"
id. at 13663-13664. Because of this amendment,
interpretations of § 6(d) of the Equal Pay Act are applicable to
Title VII as well, and an interpretive regulation promulgated by
the Wage and Hour Administrator under the Equal Pay Act explicitly
states:
"If employer contributions to a plan providing insurance or
similar benefits to employees are equal for both men and women, no
wage differential prohibited by the equal pay provisions will
result from such payments, even though the benefits which accrue to
the employees in question are 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 indicate that the employer's
payments are in violation of section 6(d), if the resulting
benefits are equal for such employees."
29 CFR § 800.116(d) (1975).
Thus, even if we were to depend for our construction of the
critical language of Title VII solely on the basis of "deference"
to interpretative regulations by the appropriate
Page 429 U. S. 145
administrative ,agencies, we would find ourselves pointed in
diametrically opposite directions by the conflicting regulations of
the EEOC, on the one hand, and the Wage and Hour Administrator, on
the other. Petitioner's exclusion of benefits for pregnancy
disability would be declared an unlawful employment practice under
§ 703(a)(1), but would be declared not to be an unlawful employment
practice under § 703(h).
We are not reduced to such total abdication in construing the
statute. The EEC guideline of 1972, conflicting as it does with
earlier pronouncements of that agency, and containing no suggestion
that some new source of legislative history had been discovered in
the intervening eight years, stands virtually alone. Contrary to it
are the consistent interpretation of the Wage and Hour
Administrator, and the quoted language of Senator Humphrey, the
floor manager of Title VII in the Senate. They support what seems
to us to be the "plain meaning" of the language used by Congress
when it enacted § 703(a)(1).
The concept of "discrimination," of course, was well known at
the time of the enactment of Title VII, having been associated with
the Fourteenth Amendment for nearly a century, and carrying with it
a long history of judicial construction. When Congress makes it
unlawful for an employer to "discriminate . . . because of . . .
sex . . . ," without further explanation of its meaning, we should
not readily infer that it meant something different from what the
concept of discrimination has traditionally meant,
cf. Morton
v. Mancari, 417 U. S. 535,
417 U. S. 549
(1974);
Ozawa v. United States, 260 U.
S. 178,
260 U. S. 193
(1922). There is surely no reason for any such inference here,
see Gemsco v. Walling, 324 U. S. 244,
324 U. S. 260
(1945).
We therefore agree with petitioner that its disability benefits
plan does not violate Title VII because of its failure
Page 429 U. S. 146
to cover pregnancy-related disabilities. The judgment of the
Court of Appeals is
Reversed.
* Together with No. 74-1590,
Gilbert et al. v. General
Electric Co., also on certiorari to the same court.
See
post at
429 U. S. 127
n. 1.
[
Footnote 1]
All the parties to the suit joined in petitioning for a writ of
certiorari. General Electric was the moving party before the Court
of Appeals, where the judgment of the District Court was affirmed.
The parties have agreed that General Electric is to be deemed the
petitioner for purposes of briefing and oral argument, a convention
we adopt for the writing of this opinion.
[
Footnote 2]
Respondents also represent a class of women employees who have
been denied such benefits since September 14, 1971, and seek
damages arising from this denial.
[
Footnote 3]
With respect to the Plan, General Electric is, in effect, a
self-insurer. While General Electric has obtained, for employees
outside California, an insurance policy from the Metropolitan Life
Insurance Co., this policy involves the payment of a tentative
premium only, subject to adjustment in the light of actual
experience. Pretrial Stipulation of Facts, � 11, App. 175-176. In
effect, therefore, the Metropolitan Life Insurance Co. is used to
provide the administrative service of processing claims, while
General Electric remains, for all practical purposes, a
self-insurer.
[
Footnote 4]
Additionally, benefit payment coverage under the Plan for all
disabilities, whether or not related to pregnancy, terminates
"on the date you cease active work because of total disability
or pregnancy, except that, if you are entitled to Weekly Benefits
for a disability existing on such date of cessation,"
benefit payments will be continued in accordance with the
provisions of the Plan. In cases of personal leave, layoff, or
strike, however, the coverage for future nonoccupational sickness
or accident disability is continued for 31 days,
ibid.
In the case of respondent Emma Furch, who took a pregnancy leave
on April 7, 1972, and who was hospitalized with a
non-pregnancy-related pulmonary embolism on April 21, 1972, a claim
was filed for disability benefits under the Plan solely for the
period of absence due to the pulmonary embolism. The claim was
rejected "since such benefits have been discontinued in accordance
with the provisions of the General Electric Insurance Plan."
[
Footnote 5]
Plaintiffs in the action were seven female employees; the
International Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC (IUE); and the latter's affiliate, Local 161, which is
a joint collective bargaining representative, with the IUE, of the
hourly paid production and maintenance employees at General
Electric's Salem, Va. plant.
[
Footnote 6]
The District Court made the following "specific findings":
"1. While pregnancy is perhaps most often voluntary, a
substantial incidence of negligent or accidental conception also
occurs."
"2. Pregnancy,
per se, is not a disease."
"3. A pregnancy without complications is normally disabling for
a period of six to eight weeks, which time includes the period from
labor and delivery, or slightly before, through several weeks of
recuperation."
375 F.
Supp. 367, 377.
[
Footnote 7]
Ibid..
[
Footnote 8]
"Five percent of pregnancies are complicated by diseases which
are found in nonpregnant persons but which may have been stimulated
by pregnancy. Five percent of pregnancies are complicated by
pregnancy-related diseases. These complications are diseases which
may lead to disability."
Ibid.
[
Footnote 9]
The District Court included in its opinion the following charts
from a stipulation dated July 24, 1973:
"143. During 1970, GE's experience, by sex, with respect to
claims under its weekly sickness and accident disability insurance
coverage was as follows:"
bwm:
Male Female
----------- -----------
No. of claims (new) 19,045 15,509
Average duration of claim . 48 days 52 days
No. of new claims per thousand employees 77 173
Average No. of employees covered 246,492 89,705
Total benefits paid $11,279,110 $7,405,790 Average cost per
insured employee of
total benefits paid $45.76 $82.57
ewm:
"144. During 1971, GE's experience, by sex, with respect to
claims under its weekly sickness and accident disability insurance
coverage was as follows:"
bwm:
Male Female
----------- -----------
No. of claims (new) 22,987 17,719
Average duration of claim 47 days 52 days
No. of new claims per thousand employees 99 217
Average No. of employees covered 231,026 81,469
Total benefits paid $14,343,000 $9,191,195
Average cost per insured employee of
total benefits paid $62.08 $112.91
ewm:
Ibid.
[
Footnote 10]
At trial, General Electric introduced, in addition to the
material cited in
n 9,
supra, the testimony of Paul Jackson, an actuary, who
calculated that the Plan presently "costs 170% more for females
than males. . . ."
Id. at 378.
[
Footnote 11]
"The present plan is objectionable in that it excludes from
coverage a unique disability which affects only members of the
female sex, while no suggestion is made to exclude disabilities
which can be said to affect only males. Additionally, the Court
gives no weight to the suggestion that the actuarial value of the
coverage now provided is equalized as between men and women.
Defenses must be bottomed on evidence, and such, in this regard, is
lacking here."
"Whatever inferences may be suggested by the statistical data
presented, the Court simply cannot presume to draw any precise
conclusions as to the actuarial value of the coverage provided
under the present plan, or the effect of including pregnancy
related disabilities on the basis of that limited data."
Id. at 382-383.
[
Footnote 12]
As noted,
supra at
429 U. S. 127
n. 1, this is a joint petition. Respondents have presented several
additional questions, not all of which merit treatment in this
opinion. We have concluded that they are all without merit.
[
Footnote 13]
This subsection provides that it shall be an unlawful employment
practice for an employer
"(2) to limit, segregate, or classify his employees in any way
which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion, sex,
or national origin."
42 U.S.C.§ 2000e-2(a)(2).
[
Footnote 14]
Respondents, who seek to establish discrimination, have the
traditional civil litigation burden of establishing that the acts
they complain of constituted discrimination in violation of Title
VII.
Albemarle Paper Co. v. Moody, 422 U.
S. 405,
422 U. S. 425
(1975);
McDonnell Douglas Corp. v. Green, 411 U.S. at
411 U. S. 802.
In
Griggs, the burden placed on the employer "of showing
that any given requirement must have a manifest relationship to the
employment in question," 401 U.S. at
401 U. S. 432,
did not arise until discriminatory effect had been shown,
Albemarle, supra at
422 U. S.
425.
[
Footnote 15]
Absent a showing of gender-based discrimination, as that term is
defined in
Geduldig, or a showing of gender-based effect,
there can be no violation of § 703(a)(1).
[
Footnote 16]
That General Electric self-insures does not change the fact that
it is, in effect, acting as an insurer, just as the State of
California was acting in
Geduldig, 417 U.S. at
417 U. S.
492.
[
Footnote 17]
Absent proof of different values, the cost to "insure" against
the risks is, in essence, nothing more than extra compensation to
the employees, in the form of fringe benefits. If the employer were
to remove the insurance fringe benefits and, instead, increase
wages by an amount equal to the cost of the "insurance," there
would clearly be no gender-based discrimination, even though a
female employee who wished to purchase disability insurance that
covered all risks would have to pay more than would a male employee
who purchased identical disability insurance, due to the fact that
her insurance had to cover the "extra" disabilities due to
pregnancy. While respondents seem to acknowledge that the failure
to provide any benefit plan at all would not constitute sex-based
discrimination in violation of Title VII,
see n 18,
infra, they
illogically also suggest that the present scheme does violate Title
VII because:
"A female must spend her own money to buy a personal disability
policy covering pregnancy disability if she wants to be fully
insured against a period of disability without income, whereas a
male, without extra expenditure, is fully insured by GE against
every period of disability."
Supplemental Brief for Respondents on Reargument 11. Yet, in
both cases -- the instant case and the case where there is no
disability coverage at all -- the ultimate result is that a woman
who wished to be fully insured would have to pay an incremental
amount over her male counterpart due solely to the possibility of
pregnancy-related disabilities. Title VII's proscription on
discrimination does not, in either case, require the employer to
pay that incremental amount. The District Court was wrong in
assuming, as it did, 375 F. Supp. at 383, that Title VII's ban on
employment discrimination necessarily means that "greater economic
benefit[s]" must be required to be paid to one sex or the other
because of their differing roles in "the scheme of human
existence."
[
Footnote 18]
Respondents tacitly admit that this situation would not violate
Title VII . They acknowledge that "GE had no obligation to
establish any fringe benefit program," Brief for Respondents 143.
Moreover, the difficulty with their contention that General
Electric engaged in impermissible sex discrimination is vividly
portrayed in their closing .suggestion that "[i]f paying for
pregnancy discriminates within the sphere of classification by sex,
so does the failure to pay," Response of Respondents to Reply Brief
for Petitioner on Reargument 7. As that statement, and its
converse, indicate, perceiving the issue in terms of "sex
discrimination" quickly places resolution of this issue into a
no-win situation.
See also Supplemental Brief for
Respondents on Reargument 59 ("[W]e believe that imposing on
employees either unequal costs when benefits are equal or unequal
benefits when costs are equal violates the right of each individual
employee to be treated equally with each individual employee of the
opposite sex . . ."). Troublesome interpretative problems such as
this reinforce our belief that Congress, in prohibiting sex-based
discrimination in Title VII, did not intend to depart from the
longstanding meaning of "discrimination,"
cf. Jefferson v.
Hackney, 406 U. S. 535,
406 U. S.
549-549 (1972).
[
Footnote 19]
The other regulation cited by respondents, 29 CFR § 1604.9(b)
(1975), simply restates the statutory proposition that it is an
unlawful employment practice to discriminate "between men and women
with regard to fringe benefits."
[
Footnote 20]
The EEOC has been given "authority from time to time to issue .
. . suitable procedural regulations to carry out the provisions of
this subchapter," § 713(a), 42 U.S.C. § 200e-12(a). No one
contends, however, that the above-quoted regulation is procedural
in nature or in effect.
[
Footnote 21]
21 Section 6(d)(1) of the Equal Pay Act, 29 U.S.C. § 206(d)(1),
provides, in pertinent part:
"No employer having employees subject to any provisions of this
section shall discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex by
paying wages to employees in such establishment at a rate less than
the rate at which he pays wages to employees of the opposite sex in
such establishment for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are
performed under similar working conditions, except where such
payment is made pursuant to (i) a seniority system; (ii) a merit
system; (iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on any other
factor other than sex. . . ."
MR. JUSTICE STEWART, concurring.
I join the opinion of the Court holding that General Electric's
exclusion of benefits for disability during pregnancy is not a
per se violation of § 703(a)(1) of Title VII, and that the
respondents have failed to prove a discriminatory effect. Unlike my
Brother BLACKMUN, I do not understand the opinion to question
either
Griggs v. Duke Power Co., 401 U.
S. 424, specifically, or the significance generally of
proving a discriminatory effect in a Title VII case.
MR. JUSTICE BLACKMUN, concurring in part.
I join the judgment 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)(1) 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.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs,
dissenting.
The Court holds today that, without violating Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., a
private employer may adopt a disability plan that compensates
employees for all temporary disabilities except one affecting
exclusively women, pregnancy. I respectfully dissent. Today's
holding not only repudiates the applicable administrative guideline
promulgated by the agency charged by Congress
Page 429 U. S. 147
with implementation of the Act, but also rejects the unanimous
conclusion of all six Courts of Appeals that have addressed this
question.
See Communications Workers v. American Tel. &
Tel., 513 F.2d 1024 (CA2 1975),
cert. pending, No.
74-1601;
Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199
(CA3 1975),
vacated on jurisdictional grounds,
424 U. S. 737
(1976);
Gilbert v. General Electric Co., 519 F.2d 661 (CA4
1975) (this case);
Tyler v. Vickery, 517 F.2d 1089,
1097-1099 (CA5 1975);
Satty v. Nashville Gas Co., 522 F.2d
850 (CA6 1975),
cert. pending, No. 75-536;
Hutchison
v. Lake Oswego School Dist. No. 7, 519 F.2d 961 (CA9 1975),
cert. pending, No. 75-1049.
I
This case is unusual in that it presents a question the
resolution of which at first glance turns largely upon the
conceptual framework chosen to identify and describe the
operational features of the challenged disability program. By
directing their focus upon the risks excluded from the otherwise
comprehensive program, and upon the purported justifications for
such exclusions, the Equal Employment Opportunity Commission, the
women plaintiffs, and the lower courts reason that the pregnancy
exclusion constitutes a
prima facie violation of Title
VII. This violation is triggered, they argue, because the omission
of pregnancy from the program has the intent and effect of
providing that "only women [are subjected] to a substantial risk of
total loss of income because of temporary medical disability."
Brief for EEOC as
Amicus Curiae 12.
The Court's framework is diametrically different. It views
General Electric's plan as representing a gender-free assignment of
risks in accordance with normal actuarial techniques. From this
perspective the lone exclusion of pregnancy is not a violation of
Title VII insofar as all other disabilities are mutually covered
for both sexes. This reasoning relies primarily upon the
descriptive statement borrowed from
Page 429 U. S. 148
Geduldig v. Aiello, 417 U. S. 484,
417 U. S.
496-497 (1974): "There is no risk from which men are
protected and women are not. Likewise, there is no risk from which
women are protected and men are not."
Ante at
429 U. S. 138.
According to the Court, this assertedly neutral sorting process
precludes the pregnancy omission from constituting a violation of
Title VII.
Presumably, it is not self-evident that either conceptual
framework is more appropriate than the other, which can only mean
that further inquiry is necessary to select the more accurate and
realistic analytical approach. At the outset, the soundness of the
Court's underlying assumption that the plan is the untainted
product of a gender-neutral risk assignment process can be examined
against the historical backdrop of General Electric's employment
practices and the existence or nonexistence of gender-free policies
governing the inclusion of compensable risks. Secondly, the
resulting pattern of risks insured by General Electric can then be
evaluated in terms of the broad social objectives promoted by Title
VII. I believe that the first inquiry compels the conclusion that
the Court's assumption that General Electric engaged in a
gender-neutral risk assignment process is purely fanciful. The
second demonstrates that the EEOC's interpretation that the
exclusion of pregnancy from a disability insurance plan is
incompatible with the overall objectives of Title VII has been
unjustifiably rejected.
II
Geduldig v. Aiello, supra, purports to be the starting
point for the Court's analysis. There a state-operated disability
insurance system containing a pregnancy exclusion was held not to
violate the Equal Protection Clause. Although it quotes primarily
from one footnote of that opinion at some length,
ante at
429 U. S.
134-135, the Court finally does not grapple with
Geduldig on its own terms.
Considered most favorably to the Court's view,
Geduldig
established the proposition that a pregnancy classification,
Page 429 U. S. 149
standing alone, cannot be said to fall into the category of
classifications that rest explicitly on "gender as such," 417 U.S.
at
417 U. S. 496
n. 20. Beyond that,
Geduldig offers little analysis
helpful to decision of this case. Surely it offends common sense to
suggest,
ante at
429 U. S. 136,
that a classification revolving around pregnancy is not, at the
minimum, strongly "sex related."
See, e.g., Cleveland Board of
Education v. LaFleur, 414 U. S. 632,
414 U. S. 652
(1974) (POWELL, J., concurring). Indeed, even in the insurance
context, where neutral actuarial principles were found to have
provided a legitimate and independent input into the decisionmaking
process,
Geduldig's outcome was qualified by the explicit
reservation of a case where it could be demonstrated that a
pregnancy-centered differentiation is used as a "mere pretext . . .
designed to effect an invidious discrimination against the members
of one sex. . . ." 417 U.S. at
417 U. S.
496-497, n. 20.
Thus,
Geduldig itself obliges the Court to determine
whether the exclusion of a sex-linked disability from the universe
of compensable disabilities was actually the product of neutral,
persuasive actuarial considerations, or rather stemmed from a
policy that purposefully downgraded women's role in the labor
force. In
Geduldig, that inquiry, coupled with the normal
presumption favoring legislative action, satisfied the Court that
the pregnancy exclusion, in fact, was prompted by California's
legitimate fiscal concerns, and therefore that California did not
deny equal protection in effectuating reforms "
one step at a
time.'" Id. at 417 U. S. 495.
But the record in this case makes such deference impossible here.
Instead, in reaching its conclusion that a showing of purposeful
discrimination has not been made, ante at 429 U. S. 136,
the Court simply disregards a history of General Electric practices
that have served to undercut the employment opportunities of women
who become pregnant while employed. [Footnote 2/1] Moreover,
Page 429 U. S. 150
the Court studiously ignores the undisturbed conclusion of the
District Court that General Electric's "discriminatory attitude"
toward women was "a motivating factor in its policy,"
375 F.
Supp. 367, 383 (ED Va.1974), and that the pregnancy exclusion
was "neutral [neither] on its face" nor "in its intent."
Id. at 382. [
Footnote
2/2]
Plainly then, the Court's appraisal of General Electric's policy
as a neutral process of sorting risks and "not a gender-based
discrimination at all,"
ante at
429 U. S. 136,
cannot easily be squared with the historical record in this case.
The Court,
Page 429 U. S. 151
therefore, proceeds to a discussion of purported neutral
criteria that suffice to explain the lone exclusion of pregnancy
from the program. The Court argues that pregnancy is not
"comparable" to other disabilities, since it is a "voluntary"
condition, rather than a "disease."
Ibid. The fallacy of
this argument is that, even if "non-voluntariness" and "disease"
are to be construed as the operational criteria for inclusion of a
disability in General Electric's program, application of these
criteria is inconsistent with the Court's gender-neutral
interpretation of the company's policy.
For example, the characterization of pregnancy as "voluntary"
[
Footnote 2/3] is not a persuasive
factor, for, as the Court of Appeals correctly noted, "other than
for childbirth disability, [General Electric] had never construed
its plan as eliminating all so-called
voluntary' disabilities,"
including sport injuries, attempted suicides, venereal disease,
disabilities incurred in the commission of a crime or during a
fight, and elective cosmetic surgery. 519 F.2d at 665. Similarly,
the label "disease," rather than "disability," cannot be deemed
determinative, since General Electric's pregnancy disqualification
also excludes the 10% of pregnancies that end in debilitating
miscarriages, 375 F. Supp. at 377, the 10% of cases where
pregnancies are complicated by "diseases" in the intuitive sense of
the word, ibid., and cases where women recovering from
childbirth are stricken by severe diseases unrelated to pregnancy.
[Footnote 2/4]
Page 429 U. S. 152
Moreover, ever the Court's principal argument for the plan's
supposed gender-neutrality cannot withstand analysis. The central
analytical framework relied upon to demonstrate the absence of
discrimination is the principle described in
Geduldig:
"There is no risk from which men are protected and women are not .
. . , [and] no risk from which women are protected and men are
not." 417 U.S. at
417 U. S.
496-497, quoted,
ante at
429 U. S. 138.
In fostering the impression that it is faced with a mere
underinclusive assignment of risks in a gender-neutral fashion --
that is, all other disabilities are insured irrespective of gender
-- the Court's analysis proves to be simplistic and misleading. For
although all mutually contractible risks are covered irrespective
of gender,
but see n 4
supra, the plan also insures risks such as
prostatectomies, vasectomies, and circumcisions that are specific
to the reproductive system of men and for which there exist no
female counterparts covered by the plan. Again, pregnancy affords
the only disability, sex-specific or otherwise, that is excluded
from coverage. [
Footnote 2/5]
Accordingly, the District Court appropriately remarked:
Page 429 U. S. 153
"[T]he concern of defendants in reference to pregnancy risks,
coupled with the apparent lack of concern regarding the balancing
of other statistically sex-linked disabilities, buttresses the
Court's conclusion that he discriminatory attitude characterized
elsewhere in the Court's findings was in fact a motivating factor
in its policy."
375 F. Supp. at 383.
If decision of this case, therefore, turns upon acceptance of
the Court's view of General Electric's disability plan as a
sex-neutral assignment of risks, or plaintiffs' perception of the
plan as a sex-conscious process expressive of the secondary status
of women in the company's labor force, the history of General
Electric's employment practices and the absence of definable
gender-neutral sorting criteria under the plan warrant rejection of
the Court's view in deference to the plaintiffs'. Indeed, the fact
that the Court's frame of reference lends itself to such
intentional, sex-laden decisionmaking makes clear the wisdom and
propriety of the EEOC's contrary approach to employment disability
programs.
III
Of course, the demonstration of purposeful discrimination is not
the only ground for recovery under Title VII. Notwithstanding
unexplained and inexplicable implications to the contrary in the
majority opinion, [
Footnote 2/6]
this Court,
See Washington
Page 429 U. S. 154
v. Davis, 426 U. S. 229,
426 U. S.
238-239 (1976);
Albemarle Paper Co. v. Moody,
422 U. S. 405,
422 U. S. 422
(1975);
McDonnell Douglas Corp. v. Green, 411 U.
S. 792,
411 U. S. 802
(1973);
Griggs v. Duke Power Co., 401 U.
S. 424,
401 U. S. 432
(1971), and every Court of Appeals [
Footnote 2/7] now have firmly settled that a
Page 429 U. S. 155
prima facie violation of Title VII, whether under §
703(a)(1) or § 703(a)(2), also is established by demonstrating that
a facially neutral classification has the effect of discriminating
against members of a defined class.
General Electric's disability program has three divisible sets
of effects. First, the plan covers all disabilities that mutually
afflict both sexes.
But see 429
U.S. 125fn2/4|>n. 4,
supra. Second, the plan
insures against all disabilities that are male-specific or have a
predominant impact on males. Finally, all female-specific and
female-impacted disabilities are covered, except for the most
prevalent, pregnancy. The Court focuses on the first factor -- the
equal inclusion of mutual risks -- and therefore understandably can
identify no discriminatory effect arising from the plan. In
contrast, the EEOC and plaintiffs rely upon the unequal exclusion
manifested in effects two and three to pinpoint an adverse impact
on women. However one defines the profile of risks protected by
General Electric, the determinative question must be whether the
social policies and aims to be furthered by Title VII and filtered
through the phrase "to discriminate" contained in § 703(a)(1)
fairly forbid an ultimate pattern of coverage that insures all
risks except a commonplace one that is applicable to women but not
to men.
As a matter of law and policy, this is a paradigm example of the
type of complex economic and social inquiry that Congress wisely
left to resolution by the EEOC pursuant to its Title VII mandate.
See H.R.Rep. No. 92238, p. 8 (1972). And, accordingly,
prior Title VII decisions have consistently acknowledged the unique
persuasiveness of EEOC
Page 429 U. S. 156
interpretations in this area. These prior decisions, rather than
providing merely that Commission guidelines are "entitled to
consideration," as the Court allows,
ante at
429 U. S. 141,
hold that the EEOC's interpretations should receive "great
deference."
Albemarle Paper Co. v. Moody, supra at
422 U. S. 431;
Griggs v. Duke Power Co., supra at
401 U. S.
433-434;
Phillips v. Martin Marietta Corp.,
400 U. S. 542,
400 U. S. 545
(1971) (MARSHALL, J., concurring). Nonetheless, the Court today
abandons this standard in order squarely to repudiate the 1972
Commission guideline providing that
"[d]isabilities caused or contributed to by pregnancy . . . are,
for all job-related purposes, temporary disabilities . . . [under]
any health or temporary disability insurance or sick leave plan. .
. ."
29 CFR § 1604.10(b) (1975). This rejection is attributed to two
interrelated events: an 8-year delay between Title VII's enactment
and the promulgation of the Commission's guideline, and interim
letters by the EEOC's General Counsel expressing the view that
pregnancy is not necessarily includable as a compensable
disability. Neither event supports the Court's refusal to accord
"great deference" to the EEOC's interpretation.
It is true, as noted,
ante at
429 U. S. 143,
that only brief mention of sex discrimination appears in the early
legislative history of Title VII. It should not be surprising,
therefore, that the EEOC, charged with a fresh and uncharted
mandate, candidly acknowledged that further study was required
before the contours of sex discrimination as proscribed by Congress
could be defined.
See 30 Fed.Reg. 14927 (1965). Although
proceeding cautiously, the Commission from the outset acknowledged
the relationship between sex discrimination and pregnancy,
announcing that "policies would have to be devised which afforded
female employees reasonable job protection during periods of
pregnancy." EEOC First Annual Report to Congress, Fiscal Year
1965-1966, p. 40 (1967). During the succeeding seven years, the
EEOC worked to develop a coherent policy toward pregnancy-oriented
employment practices
Page 429 U. S. 157
both through the pursuit of its normal adjudicatory functions
[
Footnote 2/8] and by engaging in
comprehensive studies with such organizations as the President's
Citizens' Advisory Council on the Status of Women.
See,
e.g., Address of Jacqueline G. Gutwillig, Chairwoman,
Citizens' Advisory Council, cited in App. 1159. These
investigations on the role of pregnancy in the labor market,
coupled with the Commission's "review . . . [of] its case decisions
on maternity preparatory to issuing formal guidelines,"
id. at 1161, culminated in the 1972 guideline, the
agency's first formalized, systematic statement on "employment
policies relating to pregnancy and childbirth."
Therefore, while some eight years had elapsed prior to the
issuance of the 1972 guideline, and earlier opinion letters had
refused to impose liability on employers during this period of
deliberation, no one can or does deny that the final EEOC
determination followed thorough and well informed consideration.
Indeed, realistically viewed, this extended evaluation of an
admittedly complex problem and an unwillingness to impose
additional, potentially premature costs on employers during the
decisionmaking stages ought to be perceived as a practice to be
commended. It is bitter irony that the care that preceded
promulgation of the 1972 guideline is today condemned by the Court
as tardy indecisiveness, its unwillingness irresponsibly to
challenge employers' practices during the formative period is
labeled as evidence of inconsistency, and this indecisiveness and
inconsistency are bootstrapped into reasons for denying the
Commission's interpretation its due deference.
For me, the 1972 guideline represents a particularly
conscientious and reasonable product of EEOC deliberations and,
therefore, merits our "great deference." Certainly, I can find
Page 429 U. S. 158
no basis for concluding that the guideline is out of step with
congressional intent.
See Espinoza v. Farah Mfg. Co.,
414 U. S. 86,
414 U. S. 94
(1973). On the contrary, prior to 1972, Congress enacted just such
a pregnancy-inclusive rule to govern the distribution of benefits
for "sickness" under the Railroad Unemployment Insurance Act, 45
U.S.C. § 351(k)(2). Furthermore, shortly following the announcement
of the EEOC's rule, Congress approved and the President signed an
essentially identical promulgation by the Department of Health,
Education, and Welfare under Title IX of the Education Amendments
of 1972, 20 U.S.C. § 1681(a) (1970 ed., Supp. V).
See 45
CFR § 86.57(c) (1976). Moreover, federal workers subject to the
jurisdiction of the Civil Service Commission now are eligible for
maternity and pregnancy coverage under their sick leave program.
See Federal Personnel Manual, ch. 630, subch. 13, S13-2
(FPM Supp. 992, May 6, 1975).
These policy formulations are reasonable responses to the
uniform testimony of governmental investigations which show that
pregnancy exclusions built into disability programs both
financially burden women workers and act to break down the
continuity of the employment relationship, thereby exacerbating
women's comparatively transient role in the labor force.
See,
e.g., U.S. Dept. of Commerce, Consumer Income (Series P-60,
No. 93, July 1974); Women's Bureau, U.S. Dept. of Labor,
Underutilization of Women Workers (rev. ed.1971). In dictating
pregnancy coverage under Title VII, the EEOC's guideline merely
settled upon a solution now accepted by every other Western
industrial country. Dept. of Health, Education, and Welfare, Social
Security Programs Throughout the World, 1971, pp. ix, xviii, xix
(Research Report No. 40). I find it difficult to comprehend that
such a construction can be anything but a "sufficiently reasonable"
one to be "accepted by the reviewing courts."
Train v. Natural
Resources Def. Council, 421 U. S. 60,
421 U. S. 75
(1975).
Page 429 U. S. 159
The Court's belief that the concept of discrimination cannot
reach disability policies effecting "an additional risk, unique to
women . . . ,"
ante at
429 U. S. 139,
is plainly out of step with the decision three Terms ago in
Lau
v. Nichols, 414 U. S. 563
(1974), interpreting another provision of the Civil Rights Act.
There, a unanimous Court recognized that discrimination is a social
phenomenon encased in a social context and, therefore, unavoidably
takes its meaning from the desired end products of the relevant
legislative enactment, end products that may demand due
consideration to the uniqueness of "disadvantaged" individuals.
[
Footnote 2/9] A realistic
understanding of conditions found in today's labor environment
warrants taking pregnancy into account in fashioning disability
policies. Unlike the hypothetical situations conjectured by the
Court,
ante at
429 U. S.
139-140, and n. 17, contemporary disability
Page 429 U. S. 160
programs are not creatures of a social or cultural vacuum devoid
of stereotypes and signals concerning the pregnant woman employee.
Indeed, no one seriously contends that General Electric or other
companies actually conceptualized or developed their comprehensive
insurance programs disability-by-disability in a strictly
sex-neutral fashion. [
Footnote
2/10] Instead, the company has devised a policy that, but for
pregnancy, offers protection for all risks, even those that are
"unique to" men or heavily male-dominated. In light of this social
experience, the history of General Electric's employment practices,
the otherwise all-inclusive design of its disability program, and
the burdened role of the contemporary working woman, the EEOC's
construction of sex discrimination under § 703(a)(1) is fully
consonant with the ultimate objective of Title VII,
"to assure equality of employment opportunities and to eliminate
those discriminatory practices and devices which have fostered
[sexually] stratified job environments to the disadvantage of
[women]."
McDonnell Douglas Corp. v. Green, 411 U.S. at
411 U. S.
800.
I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
General Electric's disability program was developed in an
earlier era when women openly were presumed to play only a minor
and temporary role in the labor force. As originally conceived in
1926, General Electric offered no benefit plan to its female
employees, because "
women did not recognize the
responsibilities of life, for they probably were hoping to get
married soon and leave the company.'" App. 958, excerpted from D.
Loth, Swope of G. E.: Story of Gerard Swope and General Electric in
American Business (1958). It was not until the 1930's and 1940's
that the company made female employees eligible to participate in
the disability program. In common with general business practice,
however, General Electric continued to pursue a policy of taking
pregnancy and other factors into account in order to scale women's
wages at two-thirds the level of men's. Id. at 1002. More
recent company policies reflect common stereotypes concerning the
potentialities of pregnant women, see, e.g., Cleveland Board of
Education v. LaFleur, 414 U. S. 632,
414 U. S. 644
(1974), and have coupled forced maternity leave with the nonpayment
of disability payments. Thus, the District Court found:
"In certain instances, it appears that the pregnant employee was
required to take leave of her position three months prior to birth,
and not permitted to return until six weeks after the birth. In
other instances the periods varied. In short, of all the employees,
it is only pregnant women who have been required to cease work
regardless of their desire and physical ability to work, and only
they have been required to remain off their job for an arbitrary
period after the birth of their child."
375 F.
Supp. 367, 385. In February, 1973, approximately coinciding
with commencement of this suit, the company abandoned its
forced-maternity leave policy by formal directive.
[
Footnote 2/2]
The Court of Appeals did not affirm on the basis of this
finding, since it concluded that "the statute looks to
consequences,' not intent," and "[a]ny discrimination, such as
that here, which is `inextricably sex-linked' in consequences and
result is violative of the Act." 519 F.2d 661, 664.
[
Footnote 2/3]
Of course, even the proposition that pregnancy is a voluntary
condition is overbroad, for the District Court found that "a
substantial incidence of negligent or accidental conception also
occurs." 375 F. Supp. at 377. I may assume, however, for purposes
of this argument, that the high incidence of voluntary pregnancies
and the inability to differentiate between voluntary and
involuntary conceptions, except perhaps through obnoxious,
intrusive means, could justify the decisionmaker's treating
pregnancies as voluntarily induced.
[
Footnote 2/4]
The experience of one of the class plaintiffs is instructive of
the reach of the pregnancy exclusion. On April 5, 1972, she took a
pregnancy leave, delivering a stillborn baby some nine days later.
Upon her return home, she suffered a blood clot in the lung, a
condition unrelated to her pregnancy, and was rehospitalized. The
company declined her claim for disability payments on the ground
that pregnancy severed her eligibility under the plan.
See
id. at 372. Had she been separated from work for any other
reason -- for example, during a work stoppage -- the plan would
have fully covered the embolism.
[
Footnote 2/5]
Indeed, the shallowness of the Court's "underinclusive" analysis
is transparent. Had General Electric assembled a catalogue of all
ailments that befall humanity, and then systematically proceeded to
exclude from coverage every disability that is female-specific or
predominantly afflicts women, the Court could still reason, as
here, that the plan operates equally: women, like men, would be
entitled to draw disability payments for their circumcisions and
prostatectomies, and neither sex could claim payment for
pregnancies, breast cancer, and the other excluded female-dominated
disabilities. Along similar lines, any disability that occurs
disproportionately in a particular group -- sickle-cell anemia, for
example -- could be freely excluded from the plan without troubling
the Court's analytical approach.
[
Footnote 2/6]
The cryptic "
but cf." citation to
McDonnell Douglas
Corp. v. Green, 411 U. S. 792
(1973),
ante at
429 U. S. 137,
is perhaps the most mystifying.
McDonnell involved a
private nonclass action under § 703(a)(1) of Title VII in which the
plaintiff explicitly complained that he was discharged from
employment for racial, rather than licit, motives. 411 U.S. at
411 U. S. 796.
In such a case, where questions of motivation openly form the
thrust of an individual plaintiff's complaint, the "effects" that
company policies may have had on an entire class of persons
understandably are only tangentially placed in issue,
see
id. at
411 U. S. 805
n.19. Even so, the Court expressly held that a
prima facie
violation of Title VII could be proved without affirmatively
demonstrating that purposeful discrimination had occurred. Instead,
the Court concluded that such an illicit purpose is inferable from
the interplay of four factors which together reveal that the
employers' policies have worked to disadvantage the complainant
vis-a-vis other prospective employees.
See id. at
411 U. S. 802.
Only if the employer then satisfies the burden of articulating
"some legitimate, nondiscriminatory reason for the employee's
rejection,"
ibid., must the latter actually seek to
establish an intent to discriminate.
Id. at
411 U. S. 804.
Even at this juncture, however,
McDonnell makes clear that
statistical evidence of the racial composition of the labor force
-- that is, a statistical showing of adverse impact on the
protected group of which the individual plaintiff is part -- will
be persuasive evidence that the failure to rehire the particular
complainant "conformed to a general pattern of discrimination
against" his group.
Id. at
411 U. S. 805.
Thus,
McDonnell went far in allowing proof of "effect,"
even in the setting of an individualized, rather than group, claim
of discrimination.
Equally unacceptable is the implication in the penultimate
paragraph of the opinion,
ante at
429 U. S. 145,
that the Fourteenth Amendment standard of discrimination is
coterminous with that applicable to Title VII. Not only is this
fleeting dictum irrelevant to the reasoning that precedes it, not
only does it conflict with a long line of cases to the contrary,
infra at
429 U. S. 153
and this page, but it is flatly contradicted by the central holding
of last Term's
Washington v. Davis, 426 U.
S. 229,
426 U. S. 239
(1976):
"We have never held that the constitutional standard for
adjudicating claims of invidious racial discrimination is identical
to the standards applicable under Title VII, and we decline to do
so today."
[
Footnote 2/7]
See Boston Chapter, NAACP v. Beecher, 504 F.2d 1017,
1020 (CA1 1974);
United States v. Wood, Wire & Metal
Lathers, Local Union 46, 471 F.2d 408, 414 n. 11 (CA2 1973);
Pennsylvania v. O'Neill, 473 F.2d 1029 (CA3 1973) (en
banc);
United States v. Chesapeake & Ohio R. Co., 471
F.2d 582, 586 (CA4 1972);
United States v. Hayes Int'l
Corp., 456 F.2d 112, 120 (CA5 1972);
United States v.
Masonry Contractors Assn. of Memphis, Inc., 497 F.2d 871, 875
(CA6 1974);
United States v. Carpenters, 457 F.2d 210, 214
(CA7 1972);
United States v. N. L. Industries, Inc., 479
F.2d 354, 368 (CA8 1973);
United States v. Ironworkers Local
86, 443 F.2d 544, 550-551 (CA9 1971);
Muller v. United
States Steel Corp., 509 F.2d 923, 927 (CA10 1975);
Davis
v. Washington, 168 U.S. App.D.C. 42, 46, 512 F.2d 956, 960
(1975),
rev'd on constitutional grounds, 426 U.
S. 229 (1976).
Indeed, following
Griggs, Congress in 1972 revised
Title VII, and expressly endorsed use of the "effect only" test
outlined therein in identifying "increasingly complex" "forms and
incidents of discrimination" that "may not appear obvious at first
glance."
See H.R.Rep. No. 92-238, p. 8 (1972).
[
Footnote 2/8]
For synopses of the Commission's position regarding pregnancy
and sex discrimination adopted in the course of administrative
decisionmaking and litigation activities, see the EEOC's Annual
Reports to Congress.
[
Footnote 2/9]
Lau held that the failure to provide special language
instruction to Chinese-speaking students in San Francisco schools
violated the ban against racial or national origin discrimination
contained in § 601 of the Civil Rights Act of 1964. The Court
concluded that the Act, as interpreted by the administrative
regulations promulgated by the Department of Health, Education, and
Welfare addressed "
effect[s] [to discriminate] even though
no purposeful design is present," and ultimately sought to further
the broad goal of insuring "a meaningful opportunity to participate
in the [schools'] educational program. . . ." 414 U.S. at
414 U. S. 568.
Faced with such a generalized objective, the Court repudiated the
analysis of the Court of Appeals, which had relied upon San
Francisco's commitment of equal educational offerings and resources
to every child as the basis for concluding that Chinese students
have suffered no discrimination due to the failure to adjust the
school program to remedy their unique language deficiencies.
Instead, the Court agreed that the anti-discrimination language
fairly can be read "to require affirmative remedial efforts to give
special attention to linguistically deprived children."
Id. at
414 U. S. 571
(STEWART, J., concurring). Similarly, given the broad social
objectives that underlie Title VII,
see infra at
429 U. S. 160,
and General Electric's apparent unhesitancy to take into account
the unique physical characteristics of their male workers in
defining the breadth of disability coverage,
see supra at
429 U. S. 152,
ample support appears for upholding the EEOC's view that pregnancy
must be treated accordingly.
[
Footnote 2/10]
See, e.g., 429
U.S. 125fn2/1|>n. 1,
supra.
MR. JUSTICE STEVENS, dissenting.
The word "discriminate" does not appear in the Equal Protection
Clause. [
Footnote 3/1] Since the
plaintiffs' burden of proving a
prima facie violation of
that constitutional provision is significantly heavier than the
burden of proving a
prima facie violation of a statutory
prohibition against discrimination, [
Footnote 3/2] the constitutional holding in
Geduldig v.
Aiello, 417
Page 429 U. S. 161
U.S. 484 (1974), does not control the question of statutory
interpretation presented by this case. And, of course, when it
enacted Title VII of the Civil Rights Act of 1964, Congress could
not possibly have relied on language which this Court was to use a
decade later in the
Geduldig opinion. [
Footnote 3/3] We are, therefore, presented with a
fresh, and rather simple, question of statutory construction: does
a contract between a company and its employees which treats the
risk of absenteeism caused by pregnancy differently from any other
kind of absence discriminate against certain individuals because of
their sex?
An affirmative answer to that question would not necessarily
lead to a conclusion of illegality, because a statutory affirmative
defense might justify the disparate treatment of pregnant women in
certain situations. In this case, however, the company has not
established any such justification. On the other hand, a negative
answer to the threshold question would not necessarily defeat
plaintiffs' claim because facially neutral criteria may be illegal
if they have a discriminatory effect. [
Footnote 3/4] An analysis of the effect of a company's
rules relating to absenteeism would be appropriate if those rules
referred only to neutral criteria, such as whether an absence was
voluntary or involuntary, or perhaps particularly costly. This
case, however, does not involve rules of that kind.
Rather, the rule at issue places the risk of absence caused by
pregnancy in a class by itself. [
Footnote 3/5] By definition, such a
Page 429 U. S. 162
rule discriminates' on account of sex; for it is the capacity to
become pregnant which primarily differentiates the female from the
male. The analysis is the same whether the rule relates to hiring,
promotion, the acceptability of an excuse for absence, or an
exclusion from a disability insurance plan. Accordingly, without
reaching the questions of motive, administrative expertise, and
policy, which MR. JUSTICE BRENNAN so persuasively exposes, or the
question of effect to which MR. JUSTICE STEWART and MR. JUSTICE
BLACKMUN refer, I conclude that the language of the statute plainly
requires the result which the Courts of Appeals have reached
unanimously.
[
Footnote 3/1]
The word does, however, appear in a number of statutes, but has
by no means been given a uniform interpretation in those statutes.
Compare FTC v. Morton Salt Co., 334 U. S.
37,
334 U. S. 4 15
(1948) (Robinson-Patman Act)
with NLRB v. Great Dane
Trailers, 388 U. S. 26,
388 U. S. 32-35
(1967) (National Labor Relations Act).
[
Footnote 3/2]
Washington v. Davis, 426 U. S. 229,
426 U. S.
238-248 (1976).
[
Footnote 3/3]
Quite clearly Congress could not have intended to adopt this
Court's analysis of sex discrimination because it was seven years
after the statute was passed that the Court first intimated that
the concept of sex discrimination might have some relevance to
equal protection analysis.
See Reed v. Reed, 404 U. S.
71 (1971).
[
Footnote 3/4]
Griggs v. Duke Power Co., 401 U.
S. 424,
401 U. S.
429-432 (1971).
[
Footnote 3/5]
It is not accurate to describe the program as dividing
"
potential recipients into two groups -- pregnant women and
nonpregnant persons.'" Ante at 429 U. S. 135.
Insurance programs, company policies, and employment contracts all
deal with future risks, rather than historic facts. The
classification is between persons who face a risk of pregnancy and
those who do not.
Nor is it accurate to state that under the plan "
[t]here is
no risk from which men are protected and women are not.'"
Ibid. If the word "risk" is used narrowly, men are
protected against the risks associated with a prostate operation,
whereas women are not. If the word is used more broadly to describe
the risk of uncompensated unemployment caused by physical
disability, men receive total protection (subject to the 60% and
26-week limitations) against that risk, whereas women receive only
partial protection.