Crawford v. Cushman

• Decision Date: 23 February 1976
• Docket Number: No. 49,D,49
• Citation: 531 F.2d 1114
• Parties: 12 Fair Empl.Prac.Cas. 501, 11 Empl. Prac. Dec. P 10,742 Stephanie CRAWFORD, Appellant, v. General Robert E. CUSHMAN, Jr., Commandant, United States Marine Corps, Appellee. ocket 75--7114.
• Court: U.S. Court of Appeals — Second Circuit

Page 1114

531 F.2d 1114

12 Fair Empl.Prac.Cas. 501,

11 Empl. Prac. Dec. P 10,742

Stephanie CRAWFORD, Appellant, v. General Robert E. CUSHMAN, Jr., Commandant, United States

Marine Corps, Appellee.

No. 49, Docket 75--7114.

United States Court of Appeals, Second Circuit.

Argued Sept. 17, 1975.

Decided Feb. 23, 1976.

Kathleen Peratis, American Civil Liberties Union Foundation, New York City (Ruth Bader Ginsburg, Melvin L. Wulf, New York City, on the brief), Mary Just Skinner, Vermont Legal Aid, Inc., Montpelier, Vt., for appellant.

William B. Gray, Asst. U.S Atty., Rutland, N.Y. (George W. F. Cook, U.S. Atty. for the District of Vermont, Rutland, Vt., of counsel), for appellee.

Before MOORE, FEINBERG and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal challenges, on due process and equal protection grounds, a now outmoded Marine Corps regulation which mandated the discharge of women Marines for pregnancy. The United States District Court for the District of Vermont, James S. Holden, Chief Judge, held that the regulation in question has a rational basis in terms of military readiness and mobility in addition to other practical, administrative considerations and did not operate against women as a class generally, reaching only women who became pregnant, so that it was constitutionally valid. Crawford v. Cushman, 378 F.Supp. 717, 725--26 (D.Vt.1974). Jurisdiction is under 28 U.S.C. § 1361. We disagree with the district court and hence reverse.

I. FACTS

Appellant Crawford at the age of 21 was accepted for enlistment in the United States Marine Corps on February 5, 1968, for a term of four years. She was a single person then and remained unmarried throughout her entire enlistment. She first learned that pregnancy would result in an automatic discharge during her basic training at boot camp.

Appellant's service school instruction included secretarial and data processing training. She was eventually assigned to office work at the Marine Corps Air Station, El Toro, California, where she resided in open barracks with approximately 150 other female Marines.

Appellant conceived a child in March of 1970, although she did not learn this until May of 1970. In the period March to May she reported to the base infirmary on a number of occasions, complaining of nausea, fainting, blackout spells and the like, and was transferred at her request to a change in duty assignment because of 'emotional pressure.' However, neither her personal nor medical history or condition were evaluated at all, in terms of her readiness to serve, by Marine Corps authorities, once it was learned that she was pregnant, because the pertinent regulation specifically provided that 'a woman member, whether married or unmarried, upon certification by a medical officer that she is pregnant, shall be discharged by her commander, for the convenience of the Government . . .' ¹ She was discharged on May 27, 1970, 'for the convenience of the Government--under honorable conditions.' ² Following her discharge the appellant moved to Vermont. While it is immaterial for our purposes, since the challenged regulation made discharge mandatory, it is a fact that during some of her prenatal period the appellant was confined to bed as a result of aggravation of a prior back injury by her pregnancy and she also sustained an ankle injury as a result of a fall. 378 F.Supp. at 720. Nevertheless, her medical records, the court below found, indicate nothing medically to have prevented her from carrying on her assigned military occupation as late as the seventh month of pregnancy. Id.

On December 13, 1970, appellant gave birth to a baby girl. She made a good recovery after childbirth and was able to work six weeks later. The disability caused to her by pregnancy was, as the trial court found, 'temporary only.' In January, 1971, appellant submitted a written reenlistment application but was advised that because she had a dependent child her application would not be approved. ³

The trial court attributed no significance to the fact that appellant had voiced no objection to her discharge at the time of her release from military service, doubtless because she wanted to remain in the Marine Corps and, according to her testimony, would have gone to any duty station where she might have been assigned. Without independent legal advice, moreover, her failure to object could not be treated as a 'knowing' waiver. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

In 1970 there were approximately 310,000 Marines on active duty, of which 2,000 were women. Military missions of the Marine Corps obviously require readiness and mobility; the great traditions of the Corps are sufficient testament to that. All personnel are expected to respond on short notice and without restriction to orders that might direct expeditious movement from one location to another, these demands being made upon women Marines as well.

Each woman in the Marines is assigned a skill and her duty station is determined by the needs of the Corps for the particular specialty she has. By virtue of 10 U.S.C. § 6012 assignment of women Marines to aircraft engaged in combat missions is forbidden and duty on naval vessels is confined to hospital ships and transports. See Schlesinger v. Ballard, 419 U.S. 498, 508, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975) (Navy women accordingly have lesser seagoing service than men). Female enlisted personnel are required to live in barracks, to participate in formations, ceremonial and otherwise, and are also required to attend to daily policing of barracks at 0600 hours and to report for duty at 0730. While the trial court found that there are no nurseries or other facilities at Marines installations for the care of children of Marine personnel, the Government had admitted in its answer to interrogatories that day care facilities were provided at some 17 Marine Corps bases including the El Toro, California, Marine Corps Air Station. It should further be noted that the Marine Corps does not maintain health services on its own; medical services are provided by the Navy and are available at major bases in the continental United States and in overseas stations. In a few locations where medical care is limited to dispensaries, the dispensary staff would not normally have the capability of providing obstetrical care.

It is important to note that at the time the appellant was discharged from military service, the only temporary physical disability which was cause for mandatory discharge was that of pregnancy. The capacity to serve of all other temporarily disabled personnel was and presumably still is treated on an individual basis. Depending upon the severity of one's condition a Marine Corps member might be excused from many or all of his or her duties, placed on 'light duty,' temporarily hospitalized or placed on temporary convalescent leave. If appropriate hospital facilities were not available, he or she could be transferred to a base which has the necessary facilities. Alcoholics, for example, are referred for treatment to a medical or alcoholic rehabilitation center. In all cases of temporary disability other than pregnancy the member is returned to his or her regular command or post as soon as he or she is able.

The principal justification advanced by the Marine Corps for its pregnancy regulation in addition to the demands of readiness and mobility is administrative convenience, explained in terms of 'knowing where your people are and their capacity to respond,' and not in terms of complexity of paper work or lack of appropriate facilities. No medical studies regarding the physical abilities of pregnant women were made or relied upon by the Marine Corps prior to promulgation of the mandatory discharge regulation which, along with similar former regulations of other services, seems to have stemmed from a 1951 Executive Order. See Exec. Order No. 10,240, 3 C.F.R. § 749 (1949--53 Comp.); Note, Pregnancy Discharges in the Military: The Air Force Experience, 86 Harv.L.Rev. 568, 568--69 n. 9. (1973) (hereinafter 'Note, Pregnancy Discharges'). The only medical evidence at trial below came from appellant's attending obstetrician. This uncontradicted evidence established that there is no physiological reason to prevent women from working during the early stages of pregnancy absent complications, that most complications which develop during the early months of pregnancy do not usually require hospitalization, and that in any event each patient requires individual treatment. See also Cleveland Board of Education v. LaFleur, 414 U.S. 632, 645--46 n. 12, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974).

II. LEGAL BACKGROUND

The question of mandatory pregnancy discharge comes neither to this court nor under constitutional challenge for the first time here. Mandatory leave for pregnant school teachers was held unconstitutional as a denial of equal protection of the laws in Green v. Waterford Board of Education, 473 F.2d 629 (2d Cir. 1973). See also Comment, Mandatory Maternity Leave of Absence Policies--An Equal Protection Analysis, 45 Temple L.Q. 240, 245, 257--58 (1972). The Supreme Court held mandatory maternity leave rules for pregnant school teachers to violate the Due Process clause of the Fourteenth Amendment, by way of creating a conclusive presumption that every teacher who is four to five months pregnant is physically incapable of continuing her duties, whereas any such teacher's ability to continue past a fixed pregnancy period is an individual matter. Cleveland Board of Education v. LaFleur, supra, 414 U.S. at 639--48, 94 S.Ct. 791. The Court also held that a rule making a teacher ineligible to return to work until the next regular semester after her child is three months old was violative of due process as both arbitrary and irrational, id. at 648--50, 94 S.Ct. 791, while a rule...