Cohen v. Chesterfield County School Board, No. 71-1707.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtWINTER, Circuit (dissenting
PartiesMrs. Susan COHEN, Appellee, v. CHESTERFIELD COUNTY SCHOOL BOARD and Dr. Robert F. Kelly, Appellants, Equal Employment Opportunity Commission, Amicus Curiae.
Docket NumberNo. 71-1707.
Decision Date15 January 1973

474 F.2d 395 (1973)

Mrs. Susan COHEN, Appellee,
v.
CHESTERFIELD COUNTY SCHOOL BOARD and Dr. Robert F. Kelly, Appellants, Equal Employment Opportunity Commission, Amicus Curiae.

No. 71-1707.

United States Court of Appeals, Fourth Circuit.

Resubmitted January 2, 1973.

Decided January 15, 1973.

Certiorari Granted April 23, 1973.


Samuel W. Hixon, III, Richmond, Va. (Williams, Mullen & Christian, Richmond, Va., and Frederick T. Gray, Robert E. Eicher, Richmond, Va., Oliver D. Rudy and Morris E. Mason, Chesterfield, Va., on brief), for appellants.

Philip J. Hirschkop, Alexandria, Va. (John B. Mann, Richmond, Va., on brief), for appellee.

John de J. Pemberton, Jr., Acting Gen. Counsel, Julia P. Cooper, Chief, Appellate Section, Ed Katze, Dist. Atty., Washington District Office, Washington, D. C., on brief, for E. E. O. C.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges, en banc.

Certiorari Granted April 23, 1973. See 93 S.Ct. 1925.

HAYNSWORTH, Chief Judge:

In this action brought under 42 U.S.C. § 1983, the plaintiff challenges the maternity leave regulation of the Chesterfield County School Board on the ground that it deprives her of her rights to due process and to equal protection of the laws guaranteed under the Fourteenth Amendment to the Constitution.1 The

474 F.2d 396
challenged rule requires, with limited flexibility, that teachers who become pregnant must go on maternity leave at the end of the fifth month of pregnancy.2 This appeal is taken from the District Court's decision that the maternity leave rule deprived Mrs. Cohen of equal protection: "Because pregnancy, though unique to women, is like other medical conditions, the failure to treat it as such amounts to discrimination which is without rational basis, and therefore is violative of the equal protection clause of the Fourteenth Amendment." Cohen v. Chesterfield County School Board, E.D.Va., 326 F.Supp. 1159, 1161

When Mrs. Cohen became pregnant she was a social studies teacher at Midlothian High School in Chesterfield County. Her contract with the School Board required her to comply with all state and local school laws and regulations. In compliance with the Board's maternity provisions, Mrs. Cohen notified the Board on November 2, 1970 that she was pregnant and that her estimated date of delivery was April 28, 1971. With the written opinion of her obstetrician that she could work as long as she chose, she requested an extension until April 1, 1971 of the date she would stop teaching. The School Board denied this request, granting her leave effective December 18, 1970. In a subsequent personal appearance before the Board, Mrs. Cohen made an alternate request of an extension until January 21, 1971 — the end of the semester. This request, supported by a recommendation of her principal, was also denied. The District Court found that the basis of the denials of the requested extensions was that "the School Board had a replacement

474 F.2d 397
available, and felt it proper to abide by its regulation."

The plaintiff asserts no claim of arbitrariness in the denial of the alternative request of an extension until January 21, 1971. She has made no attempt to show that a qualified replacement would have been as readily available then, or in April, as in December. She stands squarely on a broader constitutional claim which would entirely exclude school officials from participation in the decision on the date of the maternity leave. That is for her, alone, to determine, she says, else she is subject to impermissible discrimination based upon sex.

We conclude, first, that the regulation is not an invidious discrimination based upon sex. It does not apply to women in an area in which they may compete with men. Secondly, school officials have a duty to provide, as best they can, for continuity in the instruction of children and, to that end, they have a legitimate interest in determining reasonable dates for the commencement of maternity leaves and a right to fix them.

We do not accept Mrs. Cohen's premise that the regulation's provision which denies her, with the advice of her doctor, the right to decide when her maternity leave will begin is an invidious classification based upon sex which may be justified only by some compelling state interest. Such invidious discriminations are found in situations in which the sexes are in actual or potential competition. A statutory preference for men over women in the appointment of administrators was recently stricken by the Supreme Court as quite unjustified by considerations of administrative convenience.3

Only women become pregnant; only women become mothers. But Mrs. Cohen's leap from those physical facts to the conclusion that any regulation of pregnancy and maternity is an invidious classification by sex is merely simplistic. The fact that only women experience pregnancy and motherhood removes all possibility of competition between the sexes in this area. No man-made law or regulation excludes males from those experiences, and no such laws or regulations can relieve females from all of the burdens which naturally accompany the joys and blessings of motherhood. Pregnancy and motherhood do have a great impact on the lives of women, and, if that impact be reasonably noticed by a governmental regulation, it is not to be condemned as an invidious classification.

We are not accustomed to thinking, as sex classifications, of statutes making it a crime for a man forcefully to ravish a woman, or, without force, carnally to know a female child under a certain age. Military regulations requiring all personnel to be clean shaven may be suspect on other grounds, but not because they have no application to females. Prohibition or licensing of prostitution is a patent regulation of sexual activity, the burden of which falls primarily on females, but it has not been thought an invidious sex classification. What of regulations requiring adult women sunning themselves on a public beach to keep their breasts covered? Is that an invidious discrimination based upon sex, a denial of equal protection because the flat and hairy chest of a male lawfully may be exposed?

The situation confronting us is not unlike that which occasioned the memorable lament of Anatole France, "the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."4 Concern that the weight of the law falls more heavily upon the poor has been with us for years. Undoubtedly, some laws are directed to offenses which are unlikely to be committed by the wealthy, but there are also crimes which no poor person could commit.

474 F.2d 398
If the rich are unlikely to find spaces beneath bridges havens of rest, poor people are unlikely to find an opportunity to embezzle the funds of a national bank5 or to perpetrate a stock fraud.6 There are some laws which are not likely to be violated by the rich; there are others which are not likely to be violated by the poor. France stated his lament as he looked at some of such laws from the perspective of the poor, but the law may hold all of us accountable for antisocial conduct despite the differences in the temptations which confront us

How can the state deal with pregnancy and maternity in terms of equality with paternity? It cannot, of course. The disabilities and preoccupations of maternity are visited but slightly upon the father. However sympathetic he may be, it is she who must shoulder the principal problems of pregnancy, the labors of childbirth and the care and feeding of the child in the early months of its life.

Pregnancy and maternity are sui generis, and a governmental employer's notice of them is not an invidious classification by sex.

Still, the regulation must serve some reasonable objective. We think it does.

Here we may take note of the fact that Mrs. Cohen attempts to confine her attack to the rules under which the time of commencement of maternity leave is determined. There she likens pregnancy to illness and other physical disability, contending that failure to treat pregnancy as other disabilities is an unwarranted discrimination.7

We think our view should encompass the whole regulation.

There are obvious difficulties in the way of drawing a perfect analogy, as Mrs. Cohen would, between the several conditions contemplated by the maternity leave regulations and physical disabilities.

In the first place, the maternity leave policy of this school system covers an indefinite period of time, after delivery, when the young mother may wish to breast feed her baby or otherwise devote herself primarily to its care. A few weeks after a normal delivery, a healthy young mother is suffering no physical disability. If she chooses to remain on maternity leave for some months thereafter, she does so because of a temporary preference for child-care over a return to teaching and not because of anything remotely resembling illness or physical incapacity.

Even pregnancy is not like illnesses and other disabilities. In this age of wide use of effective contraceptives, pregnancy is usually voluntary. No one wishes to come down with mononucleosis or to break a leg, but a majority of young women do wish to become pregnant, though they seek to select the time for doing so. Female school teachers, like other young women, plan to become pregnant.8

Unlike most illnesses and other disabilities, too, pregnancy permits one to foresee its culmination in a period of confinement and to prepare for it. The employer of the pregnant woman need not wait until the clock has struck to search for a replacement. Unexpected illnesses and disabilities may compel resort to a pool of substitute teachers available for short periods of employment, but pregnancy assures an opportunity to secure a more permanent replacement. As planning precedes most pregnancies, planning for the arrangements they...

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26 practice notes
  • Cleveland Board of Education v. Fleur Cohen v. Chesterfield County School Board 8212 777 72 8212 1129, Nos. 72
    • United States
    • United States Supreme Court
    • January 21, 1974
    ...unnecessary presumption, comports with due process requirements. P. 650. No. 72—777, 6 Cir., 465 F.2d 1184, affirmed; No. 72—1129, 4 Cir., 474 F.2d 395, reversed and remanded. Charles F. Clarke, Cleveland, Ohio, for petitioners in 72 777. Jane M. Picker, Cleveland, Ohio, for respondents. Ph......
  • Monell v. Department of Social Services of City of New York, No. 75-1914
    • United States
    • United States Supreme Court
    • June 6, 1978
    ...board cases involved claims for monetary relief. Cohen v. Chesterfield County School Board, 326 F.Supp. 1159, 1161 (ED Va.1971), rev'd, 474 F.2d 395 (CA4 1973), rev'd and remanded, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Tinker v. Des Moines School Dist., 393 U.S. 503, 504, 89 S.C......
  • Savage v. Kibbee, No. 75 Civ. 4358 (HFW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 11, 1976
    ...reinstated an order granting back pay in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) rev'g 474 F.2d 395 (4th Cir. 1973), rev'g Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 (E.D.Va.1971). In this district, back pay has been awarded......
  • Lombard v. Board of Ed. of City of New York, No. 72 Civ. 344.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 23, 1976
    ...an order granting back pay in Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), rev'g same case, 474 F.2d 395 (4th Cir. 1973), rev'g Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 "The Court of Appeals in this circuit has not dealt with......
  • Request a trial to view additional results
26 cases
  • Cleveland Board of Education v. Fleur Cohen v. Chesterfield County School Board 8212 777 72 8212 1129, Nos. 72
    • United States
    • United States Supreme Court
    • January 21, 1974
    ...unnecessary presumption, comports with due process requirements. P. 650. No. 72—777, 6 Cir., 465 F.2d 1184, affirmed; No. 72—1129, 4 Cir., 474 F.2d 395, reversed and remanded. Charles F. Clarke, Cleveland, Ohio, for petitioners in 72 777. Jane M. Picker, Cleveland, Ohio, for respondents. Ph......
  • Monell v. Department of Social Services of City of New York, No. 75-1914
    • United States
    • United States Supreme Court
    • June 6, 1978
    ...board cases involved claims for monetary relief. Cohen v. Chesterfield County School Board, 326 F.Supp. 1159, 1161 (ED Va.1971), rev'd, 474 F.2d 395 (CA4 1973), rev'd and remanded, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Tinker v. Des Moines School Dist., 393 U.S. 503, 504, 89 S.C......
  • Savage v. Kibbee, No. 75 Civ. 4358 (HFW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 11, 1976
    ...reinstated an order granting back pay in Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974) rev'g 474 F.2d 395 (4th Cir. 1973), rev'g Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 (E.D.Va.1971). In this district, back pay has been awarded......
  • Lombard v. Board of Ed. of City of New York, No. 72 Civ. 344.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • January 23, 1976
    ...an order granting back pay in Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974), rev'g same case, 474 F.2d 395 (4th Cir. 1973), rev'g Cohen v. Chesterfield County School Board, 326 F.Supp. 1159 "The Court of Appeals in this circuit has not dealt with......
  • Request a trial to view additional results

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