Burwell v. Eastern Air Lines, Inc.

• Decision Date: 29 August 1980
• Docket Number: No. 78-1659,78-1659
• Citation: 633 F.2d 361
• Parties: 23 Fair Empl.Prac.Cas. 949, 24 Empl. Prac. Dec. P 31,213 Catherine M. BURWELL et al., Appellees, v. EASTERN AIR LINES, INC., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 361

633 F.2d 361

23 Fair Empl.Prac.Cas. 949,

24 Empl. Prac. Dec. P 31,213

Catherine M. BURWELL et al., Appellees, v. EASTERN AIR LINES, INC., Appellant.

No. 78-1659.

United States Court of Appeals Fourth Circuit.

Argued Oct. 2, 1979.

Decided Aug. 29, 1980.

Paul M. Thompson, Richmond, Va. (Christine H. Perdue, A. W. VanderMeer, Jr., Hunton & Williams, Richmond, Va., William G. Bell, Jr., Miami, Fla., Richard P. Magurno, Eastern Air Lines, Inc., New York City, on brief), for appellant.

Jay L. Westbrook, Washington, D. C. (Robert B. Wallace, Surrey, Karaski & Morse, David R. Cashdan, Stephen L. Spitz, Lawyers' Committee for Civil Rights Under Law, Washington, D. C., on brief), for appellees.

Issie L. Jenkins, Acting Gen. Counsel, Joseph T. Eddins, Jr., Associate Gen. Counsel, Beatrice Rosenberg, Asst. Gen. Counsel, Vincent Blackwood, Washington, D. C., on brief for amicus curiae Equal Employment Opportunity Commission.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN and SPROUSE, Circuit Judges.

PER CURIAM:

This appeal raises several issues. For reasons set forth in the accompanying four opinions, the court has decided them as follows:

1. The court unanimously affirms that part of the district court's judgment that invalidated Eastern Air Lines' policy requiring pregnant stewardesses to forfeit seniority when they transfer to ground positions.

2. A majority of the court affirms that part of the district court's judgment that invalidated Eastern's mandatory pregnancy leave policy for stewardesses during the first 13 weeks of pregnancy. Three judges dissent on this issue.

3. A majority of the court reverses that part of the district court's judgment that invalidated Eastern's mandatory leave policy between the 13th and 28th weeks of pregnancy. Four judges dissent on this issue.

4. The court unanimously affirms that part of the district court's judgment that upheld Eastern's mandatory leave policy from the beginning of the 28th week of pregnancy.

SPROUSE, Circuit Judge, with whom HAYNSWORTH, Chief Judge, joins:

Eastern Air Lines appeals from a judgment finding it in violation of section 703(a)(2) of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e, et seq. The district court held Eastern responsible for impermissible sex discrimination against female flight attendants in three particulars. It ruled that Eastern's policies concerning mandatory pregnancy leave, seniority for temporary transfer to ground positions and reinstatement rights after maternity leave were all violative of Title VII.

The action was brought by Catherine Burwell and Jean Proctor in the United At the time of the institution of this action, 90 percent of Eastern's flight attendants were female. Attacked by the plaintiffs were five Eastern employment practices or policies. There is no factual dispute as to the existence and nature of the policies. They are or were:

States District Court for the Eastern District of Virginia, and by Sharyn Clayton in the Northern District of Alabama. The Clayton action was transferred to the Eastern District of Virginia and the actions consolidated. Also named as defendants were Local 550 of the Airline Steward and Stewardesses Association and Local 553 of the Transport Workers Union of America. There was a subsequent class action certification under Fed. R.Civ.P. 23(b)(1), (2). The certified class includes all female flight attendants employed by Eastern on October 27, 1972, who may be so employed in the future and who may be subject to the challenged employment practices.

(a) A requirement that flight attendants must commence maternity leave immediately upon knowledge of pregnancy;

(b) A policy that pregnant flight attendants lose all accumulated seniority if they transfer to ground positions rather than taking maternity leave; flight attendants temporarily transferring to ground positions because of disabilities other than pregnancy continue to accumulate seniority;

(c) A policy fixing time limits on guaranteed rights to reinstatement of flight attendants taking maternity leave;

(d) The separate treatment of pregnancy under Eastern's Group Comprehensive Medical Insurance; and

(e) The exclusion of pregnancy from Eastern's paid sick leave policy and the impact of such exclusion on other conditions of employment.

The district court ruled in favor of the defendants on the medical insurance and sick leave issues. The plaintiffs have not appealed that decision. The court ruled for plaintiffs on the first three issues, enjoined Eastern and the unions from continuing them, and assessed back pay awards against only Eastern. The unions have not appealed any ruling and are not parties to this appeal. Eastern did not appeal the rulings holding invalid Eastern's policy on reinstatement of flight attendants after maternity leave.

The two issues remaining involve possible violations of section 703(a), Title VII ¹ by Eastern practices or policies: (1) the policy requiring loss of seniority for pregnant flight attendants temporarily transferring to ground positions; and (2) Eastern's policy requiring forced mandatory leave upon knowledge of pregnancy.

We affirm the district court's ruling that Eastern's seniority policy governing temporary transfer to ground positions violates plaintiffs' Title VII rights. We affirm in part and reverse in part the court's rulings on the mandatory pregnancy leave policies.

I LOSS OF SENIORITY UPON TEMPORARY TRANSFER TO GROUND POSITION

The facts are simple and undisputed concerning Eastern's rules relating to the temporary transfer of pregnant flight attendants to ground positions. All flight attendants incurring a temporary disability are permitted to transfer to available ground positions during the disability from flight duty. This is a right resulting from Section 16(b) When a Flight Attendant is transferred to non-flying duties with the Company on account of physical incapacity or because of sickness or injury, the Flight Attendant shall retain and continue to accrue seniority during such period of sickness or injury for a continuous period of (3) three years.

the collective bargaining agreement which also provides that flight seniority shall continue to accrue during such temporary duty as follows:

Section 16(d), by reference to 16(b), restricts seniority retention and accrual rights to such transferees having a "physical impairment" or "sickness or injury":

Section 16(d) Except as provided in paragraph (b) above, Flight Attendants transferring to positions not directly related to Flight Attendant work will lose all seniority rights as Flight Attendants.

Under Eastern's interpretation of the collective bargaining agreement, the terms "physical impairment" and "sickness or injury" do not include pregnancy. But neither "physical impairment" nor "sickness or injury" are defined in 16(b). The collective bargaining agreement, therefore, does not specifically deprive pregnant flight attendants of their seniority retention rights. Rather, it is Eastern's unilateral interpretation which excludes pregnant flight attendants and results in the loss of seniority when pregnant flight attendants temporarily transfer to ground positions.

Eastern contends that this issue is governed by the Supreme Court's decision in General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). In Gilbert the Court held that the exclusion of pregnancy from an employer-funded sickness and accident insurance program is not a per se sex-based discrimination. "Gender-based discrimination does not result simply because an employer's disability benefits plan is less than all-inclusive." 429 U.S. at 138-39, 97 S.Ct. at 409.

The issue in the instant case does not involve a Gilbert determination. It is controlled instead by Nashville Gas Co. v. Satty, 434 U.S. 136, 93 S.Ct. 347, 54 L.Ed.2d 356 (1977). Gilbert involved insurance payments, and the exclusion of pregnancy benefits were actuarily implicit in the funding of the program. The Gas Company's practice, considered in Satty, deprived an employee returning from pregnancy leave of an employment right-all accrued seniority. Eastern's practice denying seniority to pregnant flight attendants upon temporarily transferring to nonflying duties, although different in procedure and degree, involves the same principle as Satty. The Court there said:

On its face, petitioner's seniority policy appears to be neutral in its treatment of male and female employees. If an employee is forced to take a leave of absence from his job because of disease or any disability other than pregnancy, the employee, whether male or female, retains accumulated seniority . . . . If the employee takes a leave of absence for any other reason, including pregnancy, accumulated seniority is divested. . . .

It is beyond dispute that petitioner's policy of depriving employees returning from pregnancy leave of their accumulated seniority acts both to deprive them "of employment opportunities" and to "adversely affect (their) status as employee."

434 U.S. at 140-41, 98 S.Ct. at 350 (footnotes omitted).

The Court went on to say:

We held in Gilbert that § 703(a)(1) did not require that greater economic benefits be paid to one sex or the other "because of their differing roles in 'the scheme of human existence,' " 429 U.S. at 139 n. 17, 97 S.Ct. at 409 n. 17. But that holding does not allow us to read § 703(a)(2) to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.

434 U.S. at 142, 98 S.Ct. at 351 (footnotes omitted).

So here, as in Satty, Eastern's policy appears to be neutral in its treatment of male and female employees, but its impact was solely upon women, obviously depriving them of "employment opportunities" and adversely affecting their status as employees because "of their different role."

Eastern...