Harriss v. Pan Am. World Airways, Inc.

• Decision Date: 02 September 1977
• Docket Number: No. C-74-1884-WWS.,C-74-1884-WWS.
• Citation: 437 F. Supp. 413
• Parties: Ute R. HARRISS and Margaret A. Feather, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.
• Court: U.S. District Court — Northern District of California

437 F. Supp. 413

Ute R. HARRISS and Margaret A. Feather, Plaintiffs, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.

No. C-74-1884-WWS.

United States District Court, N. D. California.

September 2, 1977.

Ronald E. Yank, Carroll, Burdick & McDonough, San Francisco, Cal., Robert B. Wallace, Surrey, Karasik & Morse, Washington, D. C., Elizabeth R. Rindskopf, Lawyers' Committee for Civil Rights Under Law, Washington, D. C., for plaintiffs.

Robert S. Venning, Thomas J. Brewer, Catherine P. Rosen, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for defendant.

MEMORANDUM OF DECISION ON THE ISSUES OF LIABILITY

SCHWARZER, District Judge.

This action was brought by plaintiffs Ute Harriss and Margaret Feather on their own behalf and on behalf of other female flight attendants in the employ of defendant Pan American World Airways, Inc. Pan Am. Plaintiffs charge Pan Am with violations of Title VII of the Civil Rights Act of 1964, specifically Sections 703(a)(1), (2) of that Title, 42 U.S.C. § 2000e-2(a)(1), (2). They allege that Pan Am has committed unlawful employment practices by: (1) requiring its female flight attendants to begin unpaid maternity leave upon discovery of pregnancy; (2) refusing to allow female flight attendants to return to work until a specified time after termination of pregnancy; and (3) denying female flight attendants on maternity leave the use of sick leave, continuing accrual of seniority, and other employee fringe benefits. Pan Am has denied any violation of Title VII and has specifically alleged that the personnel practices complained of are the result of bona fide occupational qualifications reasonably necessary to the normal operation of its business as an air carrier, see, 42 U.S.C. § 2000e-2(e)(1). This Court has jurisdiction over the action under 42 U.S.C. § 2000e-5(f)(3).¹

On January 24, 1977, this Court determined that plaintiffs' action could be maintained as a class action on behalf of a class consisting of "all female flight attendants who have been employed as such by Pan Am after October 24, 1972, or who may be so employed . . . in the future."² The issues of liability and relief were bifurcated for trial and the liability issues have been fully tried to the Court. This memorandum opinion will constitute findings of fact and conclusions of law on those issues for purposes of Rule 52(a), Fed.R.Civ.P.

I. FACTS

A. Pan Am's Maternity Policy

Pan Am began passenger operations sometime before 1930 with flights from Miami to parts of the Carribean and Latin America.³ These early flights were long and arduous, and flight attendants' duties involved heavy physical labor in mooring and loading and unloading the aircraft. Most passengers and all flight attendants were male. When the use of land-based aircraft during World War II eliminated some of the demanding physical requirements, Pan Am began using mixed-sex crews and continued to do so until 1959.⁴ By that time, jet aircraft had been introduced and the airline passenger mix had changed from business and military passengers to a greater proportion of tourists. Accordingly, in 1959 Pan Am inaugurated a female-only hiring policy for flight attendants, based on the perceived function of the flight attendant "to provide passengers . . . with friendly personalized service, to instill a sense of comfort and well-being in flight, and to provide maximum reassurance to the new `mix' of travellers Pan Am was carrying." 311 F.Supp. 563. This policy was declared to be a violation of Title VII by the Court of Appeals for the Fifth Circuit in 1971, at the same time as the policies at issue in this case were inaugurated.⁵

Before April 1, 1971, Pan Am had a two-pronged policy regarding the family status of its female flight attendants: (1) any female flight attendant becoming pregnant was terminated; and (2) Pan Am retained the option to terminate female flight attendants after 6 months of marriage. The second prong of the policy was eliminated as antiquated — Pan Am had apparently not exercised its option with regard to married attendants and had no desire to do so. In response to a 1971 proposal by the Transport Worker's Union TWU, which is the bargaining representative for Pan Am's flight attendants, the Company also changed the maternity termination policy to a mandatory leave of absence upon knowledge of pregnancy. It is this revised policy which plaintiffs challenge in this case (Testimony of R. J. Hale, Pan Am's Director of Administration — In Flight Services).

Following the 1971 negotiations, the following clause was inserted in the Collective Bargaining Agreement CBA between Pan Am and the TWU:

Female employees hereunder may be granted pregnancy leaves of absence subject to the policy established by the Flight Service Department, the provisions of which will be published in the Flight Service Manual. CBA, Article 11(h).

The Non-Discretionary Leave of Absence Section of the Flight Service Manual FSM dated February 1, 1975, contains Pan Am's currently effective leave of absence policy for pregnant flight attendants. The policy contains the following basic features: (1) Upon becoming aware of her pregnancy, the flight attendant must notify her supervisor of her condition within 24 hours. She must also present a medical certificate confirming pregnancy and expected delivery date or submit to a medical examination by a Pan Am physician within 10 days. (2) Upon notification of pregnancy, the flight attendant begins a mandatory, unpaid leave of absence for the duration of her pregnancy with an expiration date of not less than 60 nor more than 90 days following birth. (3) The flight attendant must notify Pan Am of birth or termination of pregnancy and must provide a doctor's certificate confirming fitness to return to flight status. (4) The leave of absence will be extended from 60 to 90 days after delivery upon request and further reasonable extensions may be granted for medical reasons (Pl. Ex. 47, pp. 5-8). The policy is accompanied by a stringent enforcement provision:

A Cabin Attendant's failure to comply with any of the procedures set forth above will be considered a voluntary resignation. Id. at p. 8.

The exact origins of the 1971 policy and the specific considerations, if any, which entered into its adoption remain shrouded in mystery. R. J. Hale, Pan Am's Director of Administration — In Flight Services, who participated in the 1971 TWU negotiations, gave the principal testimony regarding the origins and development of the policy. He testified that the TWU had proposed a leave of absence policy for pregnant flight attendants, and Pan Am did not oppose that suggestion. Although he recalled no discussion within management of operational considerations or alternatives regarding the stop-start dates of maternity leave, he did recall that the Pan Am Medical Department proposed that leave begin upon knowledge of pregnancy and end 60 days after birth and with doctor's approval. Hale's recollections regarding the general origins of the policy were confirmed by every other Pan Am official who testified in person or by deposition in this case — none knew of any studies, deliberations, or specific considerations which underlay the policy and none were able to discuss its merits or alternatives, but all indicated that the policy emanated from and was the chief responsibility of the Pan Am Medical Department. Dr. Joseph Constantino, Pan Am's current Medical Director, testified in support of the policy, but was not aware of any study or deliberative process that had gone on within Pan Am with respect to its inauguration in 1971 or its continuation in the face of legal challenge. He stated that he supported the policy based on his consultations with other doctors, including the Medical Directors of other major airlines.

The impact of Pan Am's policy on its female flight attendants and the reasons offered in support of the policy will be considered in detail in succeeding sections.

B. The Impact of Pan Am's Maternity Policy on Female Flight Attendants

Pan Am employs approximately 4,000 flight attendants: 3,400 females and 600 males. The median age of a flight attendant at Pan Am is 31 years; median service is 8½ years. Flight attendants may continue to serve until age 65, although very few have continued beyond the age of 60. From these figures, it appears that most female flight attendants are employed as such during a significant number of their prime child-bearing years. Since Pan Am inaugurated its maternity leave policy in 1971, it has granted between 200 and 300 maternity leaves annually (Testimony of R. J. Hale, Pl. Exs. 309, 310). Therefore, it is likely that a substantial number of Pan Am's female flight attendants will encounter the maternity policy while employed at Pan Am either by taking, or considering whether to take, maternity leaves of absence to bear children.

The Pan Am policy requires pregnant flight attendants to take an uncompensated leave of absence upon discovery of pregnancy. As a result of their on-leave status, these flight attendants also suffer loss of certain other employment benefits. The principal benefit losses alleged by plaintiffs to flow from the maternity policy include: (1) failure to accrue seniority while on leave; (2) denial of sick pay benefits; and (3) limitation of medical insurance coverage for normal pregnancy.⁶

Pregnancy leave is classified by Pan Am as a form of non-discretionary leave of absence, along with medical and emergency leaves (FSM, Pl. Ex. 47). Pan Am also grants discretionary leaves of absence, including leaves for personal reasons (FSM, Pl. Ex. 48). Pan Am has encouraged employees to take discretionary leave in an effort to manage decreased personnel needs without lay-offs. Employees on leave of absence, including pregnancy leave, continue to accrue seniority for 90 days while on leave. Thereafter, accumulated seniority is retained but no further seniority accrues. There...