Lavalley v. E.B. & A.C. Whiting Co.

Decision Date17 January 1997
Docket NumberNo. 94-657,94-657
Citation166 Vt. 205,692 A.2d 367
CourtVermont Supreme Court
Parties, 78 Fair Empl.Prac.Cas. (BNA) 1689 Carrie LAVALLEY v. E.B. & A.C. WHITING COMPANY.

Andrew D. Mikell, Burlington, for plaintiff-appellant.

Christopher A. Micciche, Burlington, for defendant-appellee.

Jeffrey L. Amestoy, Attorney General, Seth A. Steinzor, Assistant Attorney General, and Melissa Jurgens, Law Clerk, Montpelier, for amicus curiae State of Vermont.


DOOLEY, Justice.

Plaintiff Carrie Lavalley claims that defendant, E.B. and A.C. Whiting Company, discriminated against her on the basis of sex in violation of the Vermont Fair Employment Practices Act, 21 V.S.A. § 495(a)(1). She appeals the decision of the superior court granting defendant's motion for summary judgment. We affirm.

Plaintiff is a full-time employee at defendant's plant, where she earns $359.20 per week. She works on a production line as a cutter/packer, responsible for cutting long bundles of plastic fibers produced at the plant. She is required to stand throughout the shift and to lift heavy items.

In March 1991, plaintiff advised defendant that she was pregnant and unable to perform her job requirements. She presented defendant with a note from her physician stating that her condition rendered her unable to stand for extended periods of time and made it difficult for her to perform heavy lifting. Plaintiff asked defendant to accommodate her for the duration of her pregnancy either by having a co-worker assist her with heavy lifting or by temporarily assigning her to light duty. Defendant denied plaintiff's request to be accommodated on the job, and pursuant to the company's disability policy, classified her disability as a long-term, nonwork-related injury, and placed her on disability leave with half-pay of $160 per week. On July 5, 1991, plaintiff gave birth and, after her maternity leave, returned to her former job at full pay.

Defendant's policy divides workers into those whose disability is work-related and qualifies them for workers' compensation benefits, and those whose disability is not work-related. The former are encouraged to accept whatever accommodations are possible, and compatible, with their ability to work. If alternative work is available, workers in this category are placed in it. Whatever the accommodation, including the placement in alternative work, the employees in this category receive full pay as long as they work.

The second category, those with nonwork-related disabilities, is further divided into two subcategories. The first subcategory is made up of minor and short-term disabilities that are handled by shift supervisors through accommodations that enable the employee to continue at full pay. The second subcategory is made up of those with long-term disabilities that render the worker unable to substantially perform his or her responsibilities. According to defendant's union contract, these employees are placed on disability leave at fifty percent of salary up to a maximum of $160 per week. Plaintiff is in this subcategory.

Plaintiff brought an action alleging that defendant discriminated against her on account of her pregnancy, violating Vermont's Fair Employment Practices Act (FEPA). See 21 V.S.A. § 495(a)(1) ("It shall be unlawful employment practice ... [f]or any employer ... to discriminate against any individual because of ... sex...."). In her complaint, she alleged that defendant violated FEPA "[b]y placing Plaintiff (who was pregnant) into a class of persons (those injured away from the job) and treating her differently from others who are disabled (those injured on the job)."

Both parties moved for summary judgment, and the superior court granted defendant's motion. The court reasoned:

Here, the Plaintiff has not presented evidence proving discriminatory motive. In fact, the practice of paying half salary for long term non-work-related illness was motivated by a union contract, not gender.

The Plaintiff's reduction in salary was not due to her gender or pregnancy, but the length of time and physical limitations created by her condition.

Even if we assume that the Plaintiff established gender as the motivating factor, we could not conclude that the Defendant violated Vermont's Fair Employment Practices Act. Defendant's decision to pay the plaintiff fifty percent of her salary during the time she was unable to substantially perform her employment was made and would have been absent any discriminatory motive.

Plaintiff appealed the court's decision to this Court.

Before we address the reasoning of the trial court, we must examine the basic premise of plaintiff's claim--that discrimination because of pregnancy can be a violation of FEPA. 1 Defendant argues that pregnancy discrimination cannot be found to be sex discrimination because: (1) in interpreting FEPA, this Court follows the decisions of the federal courts interpreting Title VII of the Civil Rights Act of 1964, the statute after which FEPA is modeled; (2) the United States Supreme Court ruled in General Electric Co. v. Gilbert, 429 U.S. 125, 135, 97 S.Ct. 401, 407-08, 50 L.Ed.2d 343 (1976), that pregnancy discrimination is not sex discrimination; (3) Congress overruled Gilbert by enacting the Pregnancy Discrimination Act (PDA) as an amendment to Title VII, 42 U.S.C. § 2000e(k); (4) the Vermont Legislature failed to amend FEPA to include the language of the federal amendment and left Gilbert as the proper interpretation of FEPA.

Defendant is correct that FEPA is patterned after Title VII of the Civil Rights Act, Graff v. Eaton, 157 Vt. 321, 323, 598 A.2d 1383, 1384 (1991), and makes it unlawful for any employer to discriminate against any individual because of his or her sex. 21 V.S.A. § 495(a)(1). We find, however, significant weaknesses in its argument.

We start with two preliminary points. First, this is not a case where the Legislature has adopted a statute patterned on the statute of another state or the United States after a determinative court decision interpreting the model statute. Where the court decision precedes our adoption, "the presumption is that the Legislature also adopted the construction given the statute by the courts of the other [jurisdiction]." Hartnett v. Union Mut. Fire Ins. Co., 153 Vt. 152, 154, 569 A.2d 486, 487 (1989). The section of FEPA that sets out the regulatory standard was adopted in 1963.1963, No. 196, § 1. It was amended to include sex discrimination in 1971, 1971, No. 9, § 1, and was again amended in 1976 to its current form. 2 1975, No. 198 (Adj.Sess.), § 1. All of the legislative action preceded the date of the Gilbert decision. Thus, there is no presumption that the Legislature intended to adopt the construction of the statute in Gilbert. See State v. Wilcox, 160 Vt. 271, 273 n. 1, 628 A.2d 924, 925 n. 1 (1993).

Second, although Vermont has patterned FEPA on Title VII, we are not bound by federal court interpretations of Title VII in construing FEPA. "[W]e look to federal case law for guidance in construing" identical provisions. Hodgdon v. Mt. Mansfield Co., 160 Vt. 150, 165, 624 A.2d 1122, 1130 (1992). In other words, federal decisions represent persuasive authority on the proper interpretation of FEPA. They are not, however, the only sources of persuasive authority. Many states have enacted employment discrimination laws patterned in whole or in part on Title VII. Decisions from the courts of those states are also sources of persuasive authority.

We make these points to emphasize that we will not adopt an interpretation of FEPA solely because the federal courts, including the United States Supreme Court, have so interpreted Title VII. Nor do we believe that the Vermont Legislature must react to every federal decision interpreting Title VII or risk that its inaction will be interpreted as an endorsement of the federal decision.

In this case, we are more persuaded by the decisions of the courts of our sister states, which have overwhelmingly found in interpreting similar or identical statutes that pregnancy discrimination can be sex discrimination. See Colorado Civil Rights Comm'n v. Travelers Ins. Co., 759 P.2d 1358, 1365 (Colo.1988); Massachusetts Elec. Co. v. Massachusetts Comm'n Against Discrimination, 375 Mass. 160, 375 N.E.2d 1192, 1199 (1978); Minnesota Mining & Mfg. Co. v. State, 289 N.W.2d 396, 398-99 (Minn.1979); Bankers Life & Casualty Co. v. Peterson, 263 Mont. 156, 866 P.2d 241, 244 (1993); Castellano v. Linden Bd. of Educ., 158 N.J.Super. 350, 386 A.2d 396, 402 (Ct.App.Div.1978), rev'd in part on other grounds, 79 N.J. 407, 400 A.2d 1182, 1183 (1979); Brooklyn Union Gas Co. v. New York State Human Rights Appeal Bd., 41 N.Y.2d 84, 390 N.Y.S.2d 884, 888-89, 359 N.E.2d 393, 397 (1976); Anderson v. Upper Bucks County Area Vocational Technical Sch., 30 Pa.Cmwlth. 103, 373 A.2d 126, 130 (1977); Frank's Shoe Store v. West Virginia Human Rights Comm'n, 179 W.Va. 53, 365 S.E.2d 251, 257 (1986); Kimberly-Clark Corp. v. Labor & Indus. Review Comm'n, 95 Wis.2d 558, 291 N.W.2d 584, 586 (1980). We agree with the reasoning of the Massachusetts Supreme Judicial Court that "[p]regnancy is a condition unique to women, and the ability to become pregnant is a primary characteristic of the female sex. Thus any classification which relies on pregnancy as the determinative criterion is a distinction based on sex." Massachusetts Elec. Co., 375 N.E.2d at 1198.

We also believe that Gilbert is a weak precedent upon which to rely, given the later congressional action. The Gilbert decision has been roundly criticized. See, e.g., California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284-85, 107 S.Ct. 683, 691-92, 93 L.Ed.2d 613 (1987). In enacting the Pregnancy Discrimination Act in 1978, Congress "unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision." Newport News...

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