Harriss v. Pan American World Airways, Inc.
| Decision Date | 22 June 1981 |
| Docket Number | No. 78-1214,78-1214 |
| Citation | 649 F.2d 670 |
| Parties | 24 Fair Empl.Prac.Cas. 947, 27 Fair Empl.Prac.Cas. 1324, 24 Empl. Prac. Dec. P 31,425 Ute R. HARRISS and Margaret A. Feather, Plaintiffs-Appellants, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant-Appellee. C.A. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elizabeth R. Rindskopf, Washington, D. C., Cohen, Vitt & Annand, Alexandria, Va., argued, Cohen, Vitt & Annand, Alexandria, Va., Stephen L. Spitz, Lawyers Committee for Civ. Rights Under Law, Washington, D. C., Ronald Yank, Carroll, Burdick & McDonough, San Francisco, Cal., Robert B. Wallace, Surrey, Karasik & Morse, Washington, D. C., on brief, for plaintiffs-appellants.
Robert S. Venning, Catherine P. Rosen, Heller, Ehrman, White & McAulieff, San Francisco, Cal., for defendant-appellee.
Appeal from the United States District Court for the Northern District of California.
Before ANDERSON, SCHROEDER and FARRIS, Circuit Judges.
Appellants Ute Harriss and Margaret Feather brought this class action against Pan American World Airways charging it with violations of sections 703(a)(1), (2) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), (2). They sued on behalf of themselves and other Pan Am female flight attendants. They contend that Pam Am violated Title VII by: (1) requiring that female flight attendants take maternity leave immediately upon learning of their pregnancy; (2) requiring that they not return to work before sixty days after the birth of the child; (3) denying them accrual of seniority after the first ninety days of their leave; and (4) denying them the use of sick leave and other fringe benefits during their leave.
The United States District Court for the Northern District of California, after trial, held that Pan Am's policies requiring commencement of leave upon pregnancy (Stop Policy) and continuation of leave for sixty days after birth (Start Policy) constituted prima facie sex discrimination but that both policies were justified as business necessities and bona fide occupational qualifications. Harriss v. Pan American World Airways, Inc., 437 F.Supp. 413 (N.D.Cal.1977). The district court held that neither the seniority policy nor the sick leave policy constituted a prima facie violation. Id. 1 The class action plaintiffs have not challenged the sick leave holding but are appealing the violation of the Stop and Start Policies and the Seniority Policy.
We agree with the district court that the Stop Policy, although prima facie sex discrimination, was justified by safety considerations. The court did not make sufficient factual findings to allow us to determine the necessity of the Start Policy, and thus we remand that question for further proceedings as herein defined. Finally, we hold that the Seniority Policy constituted prima facie sex discrimination and remand for the district court to determine whether Pan Am established that its policy was justified as either a business necessity or a
bona fide occupation qualification. We affirm in part and remand in part.
The challenged Pan Am maternity leave policy requires a flight attendant to notify her supervisor within twenty-four hours of becoming aware of her pregnancy and, upon giving such notice, to begin immediately an unpaid leave of absence which lasts no fewer than sixty and no more than ninety days after delivery. The policy's enforcement provision states: "A Cabin Attendant's failure to comply with any of the procedures set forth above will be considered a voluntary resignation."
During pregnancy leave, a flight attendant does not accrue seniority and loses certain other employment benefits such as sick pay and some medical insurance coverage. Pan Am classifies pregnancy leave, like medical and emergency leave, as a non-discretionary leave of absence. Discretionary leave is granted by Pan Am for personal reasons. Employees on discretionary leave accrue seniority for a maximum of ninety days while those on medical leave may accrue seniority for as long as three years. Feather and Harriss lost approximately 130 days of seniority as a result of their mandatory maternity leaves.
The plaintiffs' Title VII challenge was tried and decided before the amended definition of sex discrimination became effective on October 31, 1978. Under that definition sex discrimination specifically includes discrimination based on pregnancy. Since appellants seek both injunctive relief and back pay, we must assess the legality of Pan Am's policies both before and after the 1978 amendment.
To establish a Title VII violation for sex discrimination, a plaintiff must carry the burden of proving either that the challenged employment practice intentionally discriminates on the basis of sex or that it has a sexually discriminatory effect. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-2727, 53 L.Ed.2d 786 (1977); deLaurier v. San Diego Unified School Dist., 588 F.2d 674, 676 (9th Cir. 1978). If a prima facie case is established, the burden shifts to the employer to justify the challenged practice. Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971); deLaurier v. San Diego Unified School Dist., supra. If the employer meets this burden, the plaintiff may show that the employer could use alternative practices which accomplish the same purpose without discriminatory effects. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); deLaurier v. San Diego Unified School Dist., supra.
The Supreme Court, in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), held that an employer's disability insurance program which excluded coverage for pregnancy-caused disability did not, on its face, constitute sex discrimination under Title VII. In Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), however, the Court made clear that pregnancy classifications which had a discriminatory impact on women were prima facie Title VII violations under the reasoning of Griggs v. Duke Power Co., supra (). The district court, here, applied Griggs and concluded that Pan Am's mandatory pregnancy leave policy had a discriminatory impact on women because it had "the effect of excluding a disproportionate number of women from employment." 437 F.Supp. at 431. We agree.
In deLaurier v. San Diego Unified School Dist., 588 F.2d 674 (9th Cir. 1978), we found that a mandatory pregnancy leave policy for San Diego school teachers had a discriminatory impact on women. We noted that "it is plain that mandatory maternity leave is not the withholding of a potential benefit (as in Gilbert, supra), but is a restriction on pregnant women's employment opportunities." Id. at 677. Adopting the logic of deLaurier, we agree with the district court's finding that Pan Am's Stop Policy had a discriminatory impact on women and was, therefore, a prima facie Title VII violation.
The district court held that Pan Am carried its burden of showing that its Stop Policy was a "Business Necessity" and a "Bona Fide Occupational Qualification" (BFOQ). 437 F.Supp. at 432-35. Plaintiffs challenge this holding on the ground that the district court applied a too lenient standard. Consequently, we must determine the correct standard for these two defenses which we have previously recognized as being closely related. deLaurier v. San Diego Unified School Dist., 588 F.2d at 678.
The district court treated the two defenses interchangeably. In our view, however, the defenses apply to different types of Title VII violations. The BFOQ defense is applicable to employment practices that purposefully discriminate on the basis of sex while the Business Necessity defense is appropriately raised where facially neutral employment practices run afoul of Title VII only because of their disparate impact. 2 See Burwell v. Eastern Air Lines, Inc., 24 Empl.Prac.Dec. (CCH) P 31,213, at 17,378-79, 633 F.2d 361 (4th Cir. 1980).
In assessing the legality of employment practices which preceded the 1978 expansion of the definition of sex discrimination, we are compelled by the Supreme Court's reasoning in Gilbert to treat the Stop Policy as gender-neutral on its face. The district court, therefore, should have considered only whether Pan Am carried its burden of showing Business Necessity.
The standard applied by the district court combined phraseology associated with both the BFOQ and the Business Necessity defenses. 3 Even if the district court applied an improper standard, however, we conclude that its findings of fact establish that Pan Am's Stop Policy was justified as a Business Necessity.
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