Communications Workers of America, AFL-CIO v. American Tel. & Tel. Co., Long Lines Dept.

• Decision Date: 26 March 1975
• Docket Number: No. 461,E,AFL-CI,D,461
• Citation: 513 F.2d 1024
• Parties: 10 Fair Empl.Prac.Cas. 435, 9 Empl. Prac. Dec. P 10,035 COMMUNICATIONS WORKERS OF AMERICA,sther Skipper, Individually and on behalf of all similarly situated Non-Supervisory Female Employees of American Telephone and Telegraph Company, Long Lines Department, Plaintiffs-Appellants, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, LONG LINES DEPARTMENT, Defendant-Appellee. ocket 74-2191.
• Court: U.S. Court of Appeals — Second Circuit

Page 1024

513 F.2d 1024

10 Fair Empl.Prac.Cas. 435, 9 Empl. Prac.

Dec. P 10,035

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Esther Skipper Individually and on behalf of all similarly situated Non-Supervisory Female Employees of American Telephone and Telegraph Company, Long Lines Department, Plaintiffs-Appellants, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, LONG LINES DEPARTMENT, Defendant-Appellee.

No. 461, Docket 74-2191.

United States Court of Appeals Second Circuit.

Argued Dec. 9, 1974.

Decided March 26, 1975.

Mary K. O'Melveny, New York City (Cohn, Glickstein, Lurie, Ostrin & Lubell, Jonathan W. Lubell and H. Howard Ostrin, New York City, Kane & Koons, Charles V. Koons, Washington, D. C., of counsel), for plaintiffs-appellants.

Thompson Powers, Washington, D. C. (Steptoe & Johnson, James D. Hutchinson and Kenneth I. Jonson, Washington, D. C., of counsel, Harold S. Levy and Jim G. Kilpatric, New York City), for defendant-appellee.

Linda Colvard Dorian, Washington, D. C. (United States Equal Employment Opportunity Commission, William A. Carey, Gen. Counsel, Joseph T. Eddins, Associate Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Washington, D. C., of counsel), for amicus curiae EEOC.

Amicus Brief, urging affirmance, was filed by Alaska Airlines, Inc., and others (Gordon Dean Booth, Jr., Troutman, Sanders, Lockerman & Ashmore, and Robert N. Meals, Jr., Atlanta, Ga., of counsel.)

Amicus Briefs, urging reversal, were filed by International Union of Electrical, Radio and Machine Workers and others (Winn Newman, Ruth Weyand, Marcia D. Greenberger, Joseph N. Onek and Lois J. Schiffer, Washington, D. C., and Irving Abramson, Stephen C. Vladeck, Frank J. Donner, James G. Mauro, Jr., and Robert Z. Lewis, New York City), New York Civ. Liberties Union (Eve Cary, Ruth Bader Ginsburg, Melvin L. Wulf, Kathleen Peratis, American Civil Liberties Union, New York City, Wendy Webster Williams, Equal Rights Advocates, San Francisco, Cal., of counsel), Bellamy, Blank, Goodman, Kelly & Stanley (Mary F. Kelly, Nancy E. Stanley, New York City), New York State Division of Human Rights (Henry Spitz, Gen. Counsel, Ann Thacher Anderson, New York City, of counsel).

Before FEINBERG and MULLIGAN, Circuit Judges, and BRYAN, District Judge. ^*

FREDERICK van PELT BRYAN, District Judge:

This is an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) from an order of the United States District Court for the Southern District of New York (Whitman Knapp, J.) which dismissed the complaint in this action with leave to replead and certified a question to this Court. This Court has allowed the appeal on the question so certified.

The suit, commenced on July 31, 1973, is a class action brought by plaintiffs-appellants Communications Workers of America, AFL-CIO (CWA) and Esther Skipper, under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000-e et seq. ¹ The complaint alleges that the Long Lines Department of defendant-appellee American Telephone & Telegraph Company (Long Lines) violated Title VII, which prohibits discrimination in employment or between employees on the basis of sex.

The allegations of the complaint as to specific policies and practices of Long Lines claimed to be violative of Title VII are obviously based on guidelines issued by the Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcement of the Act. These guidelines were designed to prohibit disparity of treatment between pregnancy and other disabilities in the employment context. See 29 C.F.R. 1604.10(b). ² The complaint alleges that Long Lines "has promulgated and maintained policies, practices, customs and usages which limit the employment opportunities of its female employees because of sex by failing and refusing to provide equal rights, benefits and privileges to females under temporary disability due to pregnancy or childbirth or complications arising therefrom, as are made available to its male employees under temporary disability. (Long Lines') discriminatory practices and policies involve matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payments under health or disability insurance or sick leave plans. . . ."

Declaratory, injunctive and monetary relief is sought on behalf of all non-supervisory female employees and former female employees of Long Lines, who have been or may be affected by the policies and practices complained of. ³

The answer admits that under the Long Lines disability benefit plans, sickness and disability benefits are not paid in connection with absences arising on account of "certain conditions attendant to pregnancy, childbirth, or child rearing," but denies that Long Lines' policies and practices constitute sex discrimination in violation of Title VII. The answer includes, among other defenses, a separate defense that any alleged discrimination on the basis of sex arising from failure to include absences relating to pregnancy, childbirth or child rearing in Long Lines' disability plans "is based upon a rational and neutral business justification" under Title VII. ⁴

Prior to the dismissal of the complaint below, both sides had conducted a substantial amount of pre-trial discovery. Discovery had not been completed, however, and as yet no depositions have been taken. A motion concerning class action treatment was pending before the district court.

On June 17, 1974, while that motion was sub judice, the Supreme Court decided Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), holding that the provisions of a California statutory state-administered system of disability insurance for private employees which excluded from coverage disabilities arising from normal pregnancy did not violate the Equal Protection Clause of the Fourteenth Amendment.

The district court, in the case at bar, then requested briefs and heard argument on the question of whether the complaint under Title VII should not be dismissed sua sponte in the light of Aiello.

The opinion of the district court which followed read the majority opinion in Aiello, and particularly footnote 20 of that opinion (417 U.S. at 496, 94 S.Ct. at 2492), as "flatly" holding that disparity of treatment between pregnancy-related and other disabilities cannot be classified as sex discrimination under either the Equal Protection Clause or Title VII, absent a showing that such disparity was a mere pretext designed to effect invidious discrimination against the female sex. It concluded that Aiello was decisive of the issues raised by the complaint in this case and that therefore as a matter of law the complaint failed to state a claim on which relief could be granted under Title VII. ⁵ The district court dismissed the complaint solely on that ground, with leave to replead, ⁶ and certified the following question to this court pursuant to 28 U.S.C. § 1292(b): ⁷

" . . . whether Aiello has established for purposes of (this action) that disparity between the treatment of pregnancy-related and other disabilities does not of itself constitute discrimination on the basis of sex (or gender) within the prohibition either of Title VII or of the Fourteenth Amendment." ⁸

We think that the question certified does not adequately pose the issue on this appeal. In essence, what the court below held was that Aiello established that the disparity of treatment of pregnancy-related disabilities alleged in the complaint cannot constitute discrimination under Title VII unless it is alleged and proved to be a mere pretext designed to effect invidious discrimination against the female sex. The real question posed here is whether Aiello required dismissal of the complaint in this action as a matter of law for failure to state a claim on which relief could be granted under Title VII. That narrow question is the sole question to which we address ourselves.

We disagree with the district court's reading of Aiello. In our view, Aiello is not decisive of the issues raised by this complaint under Title VII and the court below was in error in holding that Aiello required dismissal of the complaint as a matter of law.

At the outset of the discussion, it is well to bear in mind the admonition of Chief Justice Marshall in Cohens v. Virginia, 6 Wheaton (19 U.S.) 264, 399-400, 5 L.Ed. 257 (1821):

"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated."

Chief Justice Marshall's admonition has been repeated many times since. For example, in Armour & Co. v. Wantock, 323 U.S. 126, 132-133, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944), rehearing denied, 323 U.S. 818, 65 S.Ct. 427, 89 L.Ed. 649 (1945), Mr. Justice Jackson, writing for a unanimous court, stated:

"It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading."

See also Humphrey's Executor v. United States, 295 U.S. 602, 626, 55 S.Ct. 869, 79 L.Ed. 1611 (1935); United Gas Improvement Co. v. Continental Oil Co., 381 U.S....