Gilbert v. General Elec. Co.

• Decision Date: 27 June 1975
• Docket Number: No. 74-1557,74-1557
• Citation: 519 F.2d 661
• Parties: 10 Fair Empl.Prac.Cas. 1201, 10 Empl. Prac. Dec. P 10,269 Martha V. GILBERT et al., Appellees, v. GENERAL ELECTRIC COMPANY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 661

519 F.2d 661

10 Fair Empl.Prac.Cas. 1201,

10 Empl. Prac. Dec. P 10,269

Martha V. GILBERT et al., Appellees, v. GENERAL ELECTRIC COMPANY, Appellant.

No. 74-1557.

United States Court of Appeals Fourth Circuit.

Argued Jan. 8, 1975.

Decided June 27, 1975.

Theophil C. Kammholz, Chicago, Ill. (Stanley R. Strauss, Washington, D. C., John S. Battle, Jr., J. Robert Brame, III, Richmond, Va., Vedder, Price, Kaufman, Kammholz & Day, Washington, D. C., and McGuire, Woods & Battle, Richmond, Va., on brief), for appellant.

Ruth Weyand, Washington, D. C. (Winn Newman, Washington, D. C., and Seymour DuBow, Richmond, Va., on brief), for appellees.

Linda Colvard Dorian, Atty., E. E. O. C. (William A. Carey, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Attys., E. E. O. C., on brief), for amicus curiae, U. S. Equal Employment Opportunity Commission.

Ruth Bader Ginsburg, Melvin L. Wulf, Kathleen Peratis, New York City, Wendy Webster Williams, San Francisco, Cal., Peter Hart Weiner, Berkeley, Cal., Averbuck & Hoffman, Oakland, Cal., on brief for amici curiae American Civil Liberties Union and Equal Rights Advocates, Inc.

Mary F. Kelly and Nancy E. Stanley, New York City, on brief for amicus curiae Bellamy, Blank, Goodman, Kelly, Ross & Stanley.

Marcia D. Greenberger, Joseph N. Onek and Lois J. Schiffer, for amici curiae Women's Equity Action League, National Organization for Women and Human Rights for Women, Inc.

Judith Lonnquist, Chicago, Ill., National Vice President for Legal Affairs and Atty., National Organization for Women, as amicus curiae.

Gerard C. Smetana, Jerry Kronenberg, Julian D. Schreiber, Borovsky, Ehrilich & Kronenberg, Chicago, Ill., Milton Smith, Gen. Counsel, and Richard B. Berman, Labor Relations Counsel, Washington, D. C., on brief for amicus curiae The Chamber of Commerce of the United States.

Charles Ryan, Gen. Atty., Clark G. Redick, Atty., F. Mark Garlinghouse, Vice President and Gen. Counsel, American Telephone and Telegraph Co., Thompson Powers, James D. Hutchinson, Ronald S. Cooper, Roger E. Warin and Steptoe & Johnson, Washington, D. C., on brief for amicus curiae The American Telephone and Telegraph Co.

Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This is a class action by certain women employees of the defendant to secure affirmative injunctive relief under Section 2000e-5(f)(3), 42 U.S.C., that childbirth disabilities of women employees of the defendant are compensable under the defendant's employee disability plan which is applicable generally throughout all defendant's plants. Following the disposition of certain procedural motions relating to venue ¹ and the propriety of class representation, ² the District Court proceeded to the merits of the controversy and, in granting relief, held the denial of pregnancy-related disability benefits violative of Title VII of the Civil Rights Act of 1964, as amended. ³ The defendant has appealed, asserting that the exclusion of such disabilities under its employee disability plan is not violative of Title VII and that, in any event, the District Court improperly permitted the action to be maintained as a class action. We affirm.

The legislative purpose behind Title VII was to protect employees from any form of disparate treatment because of race, color, religion, sex or national origin or, as one commentator has stated it, "to make employment decisions sex-blind, as well as colorblind." ⁴ And that remedial purpose is plainly spelt out in the Act, the sweep of which "extends beyond discrimination in rates of wages," and which proscribes broadly any adverse discrimination by an employer with respect to "compensation, terms, conditions, or privileges of employment" on the basis of sex. ⁵ "(T)erms (or) conditions, * * * of employment," as used in the Act, include "fringe benefits" such as pension rights and retirement and disability benefits, all of which are now well recognized as "integrally related to the entire wage structure." ⁶ The Equal Employment Opportunities Commission has so declared in its guidelines ⁷ issued under the Act. Nor is the defendant in any position to contend that "fringe benefits" are not included in "conditions of employment," for it has stated in its 1966 Annual Report:

"Compensation at General Electric is interpreted broadly to include not only monetary returns but also the value of benefit programs."

It would seem necessarily to follow, therefore, that any limitations or restrictions on disability benefits imposed by the defendant under its program of employee benefits which may be found to be sex-based would represent a discrimination in the "compensation, terms, conditions, or privileges of employment" within the proscription of the Act.

Pregnancy-related disabilities are, however, excluded from the disability benefits available under the defendant's employee benefit program. It is specifically this restriction upon the benefits available under the program which has prompted this controversy and which the plaintiffs seek by their action to invalidate. Pregnancy is a condition unique to women and a basic characteristic of their sex. A disability program which, while granting disability benefits generally, denies such benefits expressly for disability arising out of pregnancy, a disability possible only among women, is manifestly one which can result in a less comprehensive program of employee compensation and benefits for women employees than for men employees; and would do so on the basis of sex. "(W)omen, to be treated without discrimination (under the Act), must be permitted to be women," and this means a right to be "women" without being burdened by any discrimination in employment benefits, whether in wages or in fringe benefits, on account of characteristics peculiar to their sex. ⁸ It is of no moment that an employer may not have deliberately intended sex-related discrimination; the statute looks to "consequences," not intent. ⁹ Any discrimination, such as that here, which is "inextricably sex-linked" in consequences and result, is violative of the Act. ¹⁰ In so concluding, we are following the opinion reached by most of the Courts which have considered the issue ¹¹ and are giving effect to the construction of the Act as adopted by the Equal Employment Opportunity Commission in its guidelines, to which the courts are directed to give "great deference" in applying the Act. ¹²

The defendant insists, however, that this pregnancy related disability exclusion provision in its plan cannot be deemed discriminatory since its plan only offers benefits during sickness and pregnancy confinement cannot be regarded as a sickness. Its basis for arguing that pregnancy confinement is not a sickness is that such disability is "voluntary." The plan, by its provisions, covers disabilities resulting from non-occupational sickness and accident. It incorporates no definition of either "disability" or "sickness," though it does state that "non-occupational" means "any sickness or injury not arising out of or in the course of employment and not entitling you or a covered dependent to benefits under any Workmen's Compensation or Occupational Disease Act." While a number of decisions, relying on this idea of voluntarism, has, particularly in the construction of insurance contracts, refused to characterize childbirth as a sickness, ¹³ the rule generally followed in labor arbitration cases is to equate pregnancy disability and sickness and to find an employee entitled to the same disability benefits in pregnancy confinement as in the case of any other disability under an employee sickness benefit program. See Middleton Board of Education, 56 LA 830 (1971); National Lead Co., 18 LA 528 (1952); Republic Steel Corp., 37 LA 367 (1961). ¹⁴ Under the circumstances, it would seem that whether pregnancy disability was within the coverage offered by the plan would be an issue that would turn largely on the construction of the plan as followed by the defendant itself. The record appears clear that, other than for childbirth disability, the defendant had never construed its plan as eliminating all so-called "voluntary" disabilities. It has, as the District Court stated, applied its plan to "all disability, including cosmetic surgery, disabilities arising from attempted suicides, etc." except those occurring during childbirth. ¹⁵ In short, the defendant raises this defense of "voluntarism" only against a disability that is unique to women and disregards it in connection with any claim for disability submitted by male employees. Whatever facile plausibility there might be to the argument that its plan does not cover "voluntary" disabilities accordingly disappears in the face of the manner in which the defendant itself has construed and applied its plan.

The main thrust of the defendant's argument in this Court, however, is that the recent decision in Geduldig v. Aiello (1974) 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256, authoritatively determined that, contrary to the conclusion of the District Court below and the guidelines of the Commission, disparity in treatment between pregnancy-related and other disabilities cannot be classified as sex discrimination prohibited under either the Equal Protection Clause or Title VII. We do not read Aiello as so holding as applied to an action under Title VII. Nor has it been so read in the two recent Circuit decisions, which have faced directly this problem. ¹⁶ Aiello dealt with a constitutional attack under the Equal Protection Clause on a legislatively created social welfare program for private employees in which a differentiation between pregnancy-related and other disabilities was made. In that context the Court applied the customary standards in testing legislation under the Equal Protection Clause and held that, "(A)bsent a showing that distinctions involving pregnancy are mere...