Aiello v. Hansen, No. C-72-1402 SW

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: DUNIWAY, Circuit , and WILLIAMS and ZIRPOLI
• Citation: 359 F. Supp. 792
• Parties: Carolyn AIELLO, Individually and on behalf of all others similarly situated, Plaintiff, v. Sigurd HANSEN, as Director of the State Department of Human Resources Development, Defendant. Augustina D. ARMENDARIZ et al., Petitioners, v. Sigurd HANSEN, as Director of the State Department of Human Resources Development, Respondent.
• Decision Date: 31 May 1973
• Docket Number: C-72-1547 SW.,No. C-72-1402 SW

359 F. Supp. 792

Carolyn AIELLO, Individually and on behalf of all others similarly situated, Plaintiff,
v.
Sigurd HANSEN, as Director of the State Department of Human Resources Development, Defendant.
Augustina D. ARMENDARIZ et al., Petitioners,
v.
Sigurd HANSEN, as Director of the State Department of Human Resources Development, Respondent.

Nos. C-72-1402 SW, C-72-1547 SW.

United States District Court, N. D. California.

May 31, 1973.

359 F. Supp. 793

Joanne Condas, Deputy Atty. Gen., San Francisco, Cal., for Sigurd Hansen.

Jack Levine, Levy & Van Bourg, Los Angeles, Cal., for petitioners-intervenors.

Joel Gomberg, Peter H. Weiner, California Rural Legal Assistance, Gilroy, Cal., Wendy Webster Williams, Legal Aid Society of San Mateo County, Redwood City, Cal., for plaintiffs.

Cecilia D. Lannon, Legal Aid Society of Marin County, San Rafael, Cal., for petitioners Armendariz, Johnson and Jaramillo.

Roland C. Davis, Davis, Cowell & Bowe, San Francisco, Cal., for San Francisco Waitresses Union.

Joseph C. Morehead, Wong, Siedman & Lee, San Francisco, Cal., for plaintiff Carolyn Aiello.

Nancy E. Stanley, Equal Employment Opportunity Commission, Washington, D. C., amici curiae.

Before DUNIWAY, Circuit Judge, and WILLIAMS and ZIRPOLI, District Judges.

OPINION

ZIRPOLI, District Judge.

Plaintiffs, on behalf of themselves and other women similarly situated, challenge the provision of California Unemployment Insurance Code § 2626 which exempts pregnancy-related work loss from the coverage of the state disability insurance program until 28 days after the termination of pregnancy.¹ Each

359 F. Supp. 794

suffered a pregnancy-related disability and solely because of § 2626, each was denied benefits. This treatment, plaintiffs argue, unconstitutionally discriminates against pregnant women. They ask that the court declare this portion of the statute invalid, enjoin the State Department of Human Resources Development from denying benefits on the basis of this provision, and require that the Department consider plaintiffs' applications for benefits as if the challenged provision did not exist. Because plaintiffs seek to enjoin the enforcement of a state statute, a three-judge court was convened pursuant to 28 U.S.C. § 2281. The parties have now filed cross-motions for summary judgment,² each agreeing that no relevant facts are in dispute

I.

The California Unemployment Insurance Code establishes a comprehensive legislative scheme designed to provide protection against wage loss caused by involuntary unemployment. The disability insurance program, which is involved in this suit, provides benefits to persons unable to perform their customary work because of nearly any physical or mental condition; a complementary program provides compensation to unemployed persons able to and available for work. Thus, the state has attempted to reduce to a minimum the suffering caused by involuntary unemployment of every type. Calif.Unemp.Ins.Code §§ 100, 2601.

The disability insurance program is wholly supported by employee contributions. At present, employees must contribute one percent of their salary up to a maximum of $85 per year. Id. §§ 984, 985, 2901. In order to be eligible to receive benefits, previous to the time of his disability an employee must have contributed one percent of a minimum income of $300 during a one year base period. Id. § 2652. Having satisfied this requirement, an employee is eligible to receive "basic benefits" varying between $25 and $105 per week, depending upon the amount earned during the base period, for a maximum of twenty-six weeks.³ Id. §§ 2653, 2655. These benefits begin on the eighth day of disability, or, if the person is hospitalized, on the first day of hospitalization. Id. §§ 2627(b); 2802. While hospitalized, an employee is also eligible for "additional benefits" of $12 per day for a maximum of twenty days. Id. § 2801. The fund is protected against false claims by the requirement that claims be accompanied by the affidavits of a licensed medical practitioner attesting to the existence of a disability and by the requirement that an employee must submit to such reasonable examinations as the Department may require. Id. §§ 2627(c), (d) 2708, 2710.

In conformity with the aim of reducing the suffering of those unable to work regardless of the reason, the disability insurance program provides benefits on account of nearly any incapacity. Those confined in an institution as a dipsomaniac, drug addict, or sexual psychopath are disqualified from receiving benefits while they are confined. Id. § 2678. The program compensates all others who are incapacitated with the sole exception that women, during a pregnancy and for 28 days after its termination, are denied benefits for any incapacity resulting from the pregnancy itself or any illness or injury caused by or arising in connection with the pregnancy. Id. § 2626. It is this special treatment that plaintiffs claim denies them the equal protection of the laws.

II.

Plaintiff Aiello, a self-supporting woman, was forced to cease working as

359 F. Supp. 795

a hairdresser on June 21, 1972, because of medical problems arising in connection with her pregnancy. The next day she was hospitalized, and after it was discovered that she was suffering from ectopic pregnancy, surgery was performed to terminate her pregnancy. Ms. Aiello's doctor ordered that she not return to work until July 28, 1972. On June 23 she applied for disability insurance benefits. These benefits were denied for the sole reason that her disability arose in connection with her pregnancy

Plaintiff Armendariz is the sole source of support for herself, her husband, and an infant son. She was forced to cease working as a secretary on May 8, 1972, when she became ill and began bleeding. Early the next day she called an ambulance; on the way to the hospital she went into labor and suffered a miscarriage. Pursuant to the orders of her doctor, Ms. Armendariz did not return to work until the end of May. She applied for disability insurance benefits, and her application was denied solely because her disability arose in connection with pregnancy.

Plaintiff Johnson is the head of a household composed of herself and her five-year-old son. Their main source of support is the income she receives as an operator for the telephone company. Ms. Johnson entered the hospital on May 22, 1972, after experiencing intense abdominal pain, swelling in the legs, back pain, and general illness. Her condition was diagnosed as tubal pregnancy and, in order to save her life, an operation was performed to terminate the pregnancy. She was discharged from the hospital on May 30 and advised not to return to work until July 10. Her disability insurance claim was denied for the reason that her disability was disqualified by § 2626's pregnancy exclusion.

The last individual plaintiff, Ms. Jaramillo, was eight months pregnant when the initial petition for writ of mandate was filed. The court has been advised that she since had a normal delivery of her child. Except for her husband's educational expenses, her income is the sole source of support for herself, her husband, and their baby. Ms. Jaramillo wishes to receive benefits for the period during which she was physically incapacitated by the delivery of her child.

This case initially arose as two separate lawsuits. Ms. Aiello presented her claim in a federal court action, and the other plaintiffs initially presented their claims in a petition for a writ of mandate filed in the California Supreme Court. Defendant removed the state court action and it was subsequently consolidated with Ms. Aiello's suit. The plaintiffs who initially filed in state court moved that this court stay further proceedings pending the outcome of a state suit, but because neither the initial plaintiff nor the defendant saw any possibility that the statute could be construed so as to avoid the constitutional question, the motion was not granted. This court, therefore, must reach the federal constitutional claim presented.

III.

The threshold issue is what standard of review should be applied to test the validity of laws, such as § 2626, which discriminate on the basis of a sex-linked characteristic. In recent years the Supreme Court has employed two equal protection tests: If a statute is based upon a "suspect" classification, e. g., Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), or it concerns a "fundamental" interest, e. g., Shapiro v. Thompson, 394 U.S. 618, 627, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), it is subject to "strict scrutiny" and will be held invalid in the absence of a countervailing "compelling" state interest. In all other instances, a statutory classification is valid unless it is without "rational basis." E.g., Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). See generally Shapiro v. Thompson, supra at 658-662, 89 S.Ct. 1322 (Harlan, J., dissenting); Developments in the Law:

359 F. Supp. 796

Equal Protection, 82 Harv.L.Rev. 1065, 1076-1131 (1969) hereinafter cited as

Developments.

Although the Supreme Court has considered the question in two recent cases, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), and Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), it remains unclear how sex discrimination fits within equal protection doctrine. Although four members of the Frontiero Court were willing to hold that sex is a "suspect" classification, the majority refused to put sex in this category, at least until a case is presented that requires consideration of this extension of Reed. In view of the Supreme Court's intentional restraint, this court similarly does not consider whether sex discrimination is "suspect," because the challenged statute is invalid even under the Reed test. See also Eisenstadt v. Baird, 405 U.S. 438, 447 n.7, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972...