758 F.2d 390 (9th Cir. 1985), 84-5843, California Federal Sav. and Loan Ass'n v. Guerra

Docket Nº:84-5843, 84-5844.
Citation:758 F.2d 390
Party Name:6 Employee Benefits Ca 1587 CALIFORNIA FEDERAL SAVINGS AND LOAN ASSOCIATION, etc.; Merchants and Manufacturers Association, etc.; California Chamber of Commerce, etc., Plaintiffs/Appellees, v. Mark GUERRA, etc.; Department of Fair Employment and Housing; Cruz F. Sandoval, etc.; Fair Employment and Housing Commission of the State of California, Defe
Case Date:April 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 390

758 F.2d 390 (9th Cir. 1985)

6 Employee Benefits Ca 1587


Merchants and Manufacturers Association, etc.;

California Chamber of Commerce, etc.,



Mark GUERRA, etc.; Department of Fair Employment and

Housing; Cruz F. Sandoval, etc.; Fair Employment

and Housing Commission of the State of

California, Defendants/Appellants.

Lillian Garland, Applicant for Intervention/Appellant.

Nos. 84-5843, 84-5844.

United States Court of Appeals, Ninth Circuit

April 16, 1985

Argued and Submitted Feb. 14, 1985.

Page 391

Pamela Hemminger, Los Angeles, Cal., for plaintiff-appellees.

Marian M. Johnston, Deputy Atty. Gen., San Francisco, Cal., for defendants-appellants.

Linda Krieger, San Francisco, Cal., for applicant for intervention, appellant L. Garland.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON and FERGUSON, Circuit Judges, and GILLIAM, [*].

Page 392

FERGUSON, Circuit Judge:

California law requires employers covered by Title VII to grant pregnancy disability leave of up to four months to their employees. Cal.Gov't Code Sec. 12945(b)(2). 1 Title VII prohibits employers from discriminating on the basis of sex. 42 U.S.C. Sec. 2000e-2(a). 2 This prohibition includes, by virtue of the Pregnancy Discrimination Amendment ("PDA"), discrimination on the basis of pregnancy. 42 U.S.C. Sec. 2000e(k). 3 California Federal Savings and Loan Association ("Cal Fed") maintains a disability leave policy that is, on its face, gender-neutral. It fails, however, to afford to female employees California's statutorily required four-month pregnancy disability leave. 4

Lillian Garland was a receptionist/PBX operator with Cal Fed. From January to April 1982, she took a four-month pregnancy disability leave. In April, Cal Fed denied Garland's request for reinstatement to the same or similar job; Garland did not return to work at Cal Fed until November 1982. California's Department of Fair Employment and Housing therefore served Cal Fed with a complaint in May 1983. The Department alleged, on behalf of Garland, that Cal Fed's disability leave policy violated section 12945(b)(2) because it failed to provide Garland four months of pregnancy disability leave and reinstatement to the same or similar job.

Cal Fed then filed this suit in district court on August 1, 1983, seeking declaratory and injunctive relief against the enforcement of section 12945(b)(2) on the basis of preemption by federal antidiscrimination

Page 393

law--Title VII. 5 Cal Fed prevailed on cross-motions for summary judgment. The district court held that Title VII preempted section 12945(b)(2) because it "[d]iscriminat[es] against males based on pregnancy." The state defendants appeal this ruling.

Lillian Garland raises several other issues on appeal which do not go to the merits of the case. In this opinion, we address the merits; in a separate, unpublished memorandum disposition, filed concurrently with this opinion, we address the other issues, 760 F.2d 274.


We hold that the district court's conclusion that section 12945(b)(2) discriminates against men on the basis of pregnancy defies common sense, misinterprets case law, and flouts Title VII and the PDA. 6

The district court relied only upon Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983), for the proposition that section 12945(b)(2) "[d]iscriminat[es] against males based on pregnancy." Newport News stands for no such thing. In deciding whether the protections of the PDA extended to the spouses of employees, the Supreme Court in Newport News actually held: "discrimination based on a woman's pregnancy is, on its face, discrimination because of her sex. And since the sex of the spouse is always the opposite of the sex of the employee, it follows inexorably that discrimination against female spouses in the provision of fringe benefits is also discrimination against male employees." 103 S.Ct. at 2631 (emphasis added). Thus, the employer in that case had to extend pregnancy benefits to make employees' wives' coverage equivalent in comprehensiveness to that of employees' husbands.

Citing Newport News for the rule that employers may disregard a state statutory obligation to provide pregnancy disability leave stands that case on its head. Newport News extended a pregnancy benefit, while Cal Fed seeks to limit one. Newport News measured equivalence of benefits by the comprehensiveness of their coverage of the disabilities to which each sex is subject, while Cal Fed seeks to measure equality of benefits by the sameness of coverage despite differences in need. Newport News found that inadequate pregnancy coverage discriminated against females--wives--and against their husbands only because the husbands-employees' total benefit package was thereby diminished, while Cal Fed claims that adequate pregnancy leave discriminates against male employees--who do not get pregnant and whose total disability package suffers no consequent diminution.

Newport News not only does not prohibit section 12945(b)(2), it provides a framework for harmonizing the California statute and the PDA. Within this framework, we first analyze the scope of Title VII's preemption; next, we discuss the effect of the PDA on employment discrimination law.

Page 394


The question this case presents is whether Title VII's prohibition of discrimination in employment on the basis of sex, as clarified by the definitional amendments of the PDA, preempts section 12945(b)(2). See Newport News, 103 S.Ct. at 2626-27. Our analysis starts with Title VII's preemption provisions, 42 U.S.C. Sec. 2000e-7 and 42 U.S.C. Sec. 2000h-4. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 2899-901, 77 L.Ed.2d 490 (1983) (determining whether ERISA preempted state disability law by first looking to ERISA's plain language and legislative history).

Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.

42 U.S.C. Sec. 2000e-7 (emphasis supplied).

Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.

42 U.S.C. Sec. 2000h-4 (emphasis supplied).

The reach of Title VII's preemption provision is thus narrow. "Title VII does not itself prevent States from extending their nondiscrimination laws to areas not covered by Title VII...." Shaw, 103 S.Ct. at 2903. Title VII "preserve[s] the effectiveness of state antidiscrimination laws." Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1226 (9th Cir.1971) (citing 110 Cong.Rec. 7243, 12721 (1964) (comments of Senators Case and Humphrey)). Accord Burns v. Rohr Corp., 346 F.Supp. 994, 998 (S.D.Cal.1972) ("the purpose of 42 U.S.C. Secs. 2000e-7 and 2000h-4 was essentially to assure preservation of state anti-discrimination laws and not to save inconsistent laws.").

Does section 12945(b)(2) require an employment practice that is "unlawful" under, or "inconsistent" with, Title VII? This is a narrow inquiry. We need not determine, as the litigants would have us do, whether Title VII compels employers to grant reasonable pregnancy disability leave to protect women from the potentially disparate impact of facially neutral, but inadequate, disability leave policies; we need only decide whether section 12945(b)(2) is permissible under Title VII. Cf. Garcia v. San Antonio Metropolitan Transit Authority, --- U.S. ----, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) ("The essence of our federal system is that within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal, no matter how unorthodox or unnecessary anyone else--including the judiciary--deems state involvement to be."); Hawaii Housing Authority v. Midkiff, --- U.S. ----, 104 S.Ct. 2321, 2328-31, 81 L.Ed.2d 186 (1984) (examining the extent of a state's police powers). We need not determine whether some set of facts, which might show that the statute has harmed a woman's quest for employment, might render section 12945(b)(2) discriminatory as applied; we decide only a challenge to the facial validity of section 12945(b)(2) as presented by the district court's legal conclusion on cross-motions for summary judgment. We decline to conjure up a factual record (compare Abraham v. Graphic Arts International Union, 660 F.2d 811 (D.C.Cir.1981), with Marafino v. St. Louis County Circuit Court, 537 F.Supp. 206, 213 (E.D.Mo.1982), aff'd, 707 F.2d 1005, 1006 (8th Cir.1983)), or to rely on possibly stereotypical assumptions. See Califano v. Goldfarb, 430 U.S....

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