Miller-Wohl Co., Inc. v. Commissioner of Labor and Industry, MILLER-WOHL

• Decision Date: 28 December 1984
• Docket Number: No. 84-172,MILLER-WOHL,84-172
• Citation: 214 Mont. 238,692 P.2d 1243,41 St.Rep. 2445
• Parties: , 36 Fair Empl.Prac.Cas. 1010, 36 Empl. Prac. Dec. P 35,176, 5 Employee Benefits Ca 2622 TheCOMPANY, INC., Petitioner and Respondent, v. COMMISSIONER OF LABOR AND INDUSTRY, State of Montana, and Tamara L. Buley, Respondents and Appellants.
• Court: Montana Supreme Court

Page 1243

692 P.2d 1243

214 Mont. 238, 36 Fair Empl.Prac.Cas.

1010,

36 Empl. Prac. Dec. P 35,176,

5 Employee Benefits Ca 2622

The MILLER-WOHL COMPANY, INC., Petitioner and Respondent, v. COMMISSIONER OF LABOR AND INDUSTRY, State of Montana, and Tamara L. Buley, Respondents and Appellants.

No. 84-172.

Supreme Court of Montana.

Submitted Sept. 26, 1984.

Decided Dec. 28, 1984.

R. Scott Currey argued, Dept. of Labor & Industry, Helena, for respondents and appellants.

Tipp, Hoven, Skjelset & Frizzell; Richard R. Buley, argued, Missoula, for Tamara Buley.

Church, Harris, Johnson & Williams; Cresap S. McCracken, Great Falls, Charles L. Fine argued, Phoenix, Ariz., for Miller-Wohl Co.

Kathleen H. Richardson, Havre, amicus curiae, for Women's Law Section.

Patten & Renz; Jeffrey Renz, Billings, amicus curiae, for American Civil Liberties Union.

Kathleen F. Holden, Helena, amicus curiae, for Montana Human Rights Com'n.

Hilley & Loring; Emilie Loring, Great Falls, amicus curiae, for Montana Educ. Ass'n.

SHEEHY, Justice.

This is an appeal by Tamara L. Buley and the Commissioner of Labor and Industry from a judgment of the District Court, Eighth Judicial District, Cascade County, finding the Montana Maternity Leave Act invalid and reversing a decision of the Commissioner in favor of Tamara for back wages and penalties.

We reverse the judgment of the District Court.

We determine for the purpose of this action that the employment policy of Miller-Wohl was one of no leave of absence for temporarily disabled employees until the end of their first year of employment.

In short summary of our decision, we make the following determinations:

(1) Miller-Wohl's discharge of Tamara because of her pregnancy was in direct violation of the Montana Maternity Leave Act (MMLA). Moreover, as Title VII of the Civil Rights Act of 1964, and the Pregnancy Discrimination Act of the federal government are interpreted by federal regulations, it appears that Miller-Wohl's no leave policy and discharge of Tamara may have violated those federal acts.

(2) Usually an attack on legislation alleged to be discriminatory is mounted by a person discriminated against. In this case Miller-Wohl, as an employer, was not discriminated against by the MMLA, but it nevertheless has standing to raise validity of MMLA.

(3) Miller-Wohl's no-leave policy created a disparate effect on women who become pregnant, compared to those employees who do not become pregnant. Although facially neutral, its no-leave policy subjected pregnant women to job termination risk on a basis not faced by men. The no-leave policy therefore was sexually discriminatory in violation of Title VII and the Pregnancy Disability Act.

(4) The policy and purpose of Title VII and the PDA is to eliminate discrimination in employment policies.

(5) Miller-Wohl's termination of Tamara directly violated the MMLA. The policy and purpose of the MMLA is to protect equal job opportunities for women as compared to others by removing a female disability job risk not faced by men and non-pregnant females. Its objective in that field, equality, is the same as the objective of Title VII. We do not agree that MMLA violates Title VII because it is gender-based in its operation, in that it protects women without at the same time protecting others equally.

(6) By the simple expedient of requiring an employer to extend the same leave rights to all employees temporarily disabled as are extended to pregnant women under the MMLA, the Montana legislative purpose to provide women equality of opportunity in employment could be preserved, and the provisions of the MMLA and Title VII reconciled.

(7) Courts have recognized judicial power in discrimination cases to save the legality of questioned legislative enactments by the doctrine of extension, extending the same benefits to those who would otherwise be discriminated against. This case presents a proper one for judicial extension. However, because the legislature is meeting shortly we defer to the legislature for its action in this field.

(8) We find the MMLA valid.

I.

Miller-Wohl hired Tamara Buley as a retail sales clerk at its Three Sisters store in Great Falls, Montana on August 1, 1979. She was employed to work full time (34-36 hours a week) during the store's two busy months, August and December, and part-time (16-20 hours a week) for the rest of the year. She was, according to the store manager, a "regular employee."

Tamara missed two and a half days of work during her first week on the job because of what she thought was the 'flu. On August 13, 1979, she discovered she was pregnant and soon after told her supervisor. During the next two weeks she suffered from "morning sickness." She felt nauseated and faint, and as a result missed time from work, had to leave the selling floor for breaks, and spent considerable time in the store bathroom vomiting, and was sent home early on occasion. On August 27, 1979, Miller-Wohl terminated Tamara's employment, undoubtedly because her pregnancy diminished her effectiveness as a sales clerk.

Tamara filed a complaint against Miller-Wohl with the Montana Commissioner of Labor and Industry (Commissioner). She claimed that Miller-Wohl had violated the Montana Maternity Leave Act (MMLA).

Miller-Wohl then brought suit against the Commissioner and Tamara in United States District Court for the district of Montana, asking the federal court to declare the MMLA invalid and to enjoin its enforcement. The court issued a temporary restraining order for a brief period, but then permitted the state agency to proceed.

On October 1, 1980 the Commissioner held a hearing and on October 3, 1980 issued an administrative order with findings of fact and conclusions of law that Miller-Wohl had violated the MMLA by dismissing Tamara Buley; that the MMLA neither offended Equal Protection guaranties nor was preempted by Title VII of the Civil Rights Act of 1964; and that Tamara was entitled to back pay and penalties in the amount of $6,573.60.

The federal district court concurred in the Commissioner's conclusions. Miller-Wohl Co. v. Commissioner of Labor and Industry, 515 F.Supp. 1264 (U.S.D.C.Mont.1981). In addition the federal court found that Miller-Wohl could comply with the PDA and MMLA by simply granting leave to all employees who miss work because they are sick or disabled. 515 F.Supp., at 1267.

The decision of the federal district court was appealed to the U.S. Court of Appeals for the Ninth Circuit. That court determined none of the issues. Instead it concluded that Miller-Wohl's complaints failed to present an affirmative federal claim over which the court could assert jurisdiction and dismissed the action. Miller-Wohl Co., Inc. v. Commissioner of Labor and Industry, et al. 685 F.2d 1088 (U.S.C.A. 9, 1982). This dismissal left the District Court opinion without precedential effect.

Miller-Wohl also petitioned the state court for a review of the Commissioner's decision. On February 8, 1984, the District Court for Cascade County reversed the Commissioner's order. The District Court held that the MMLA is discriminatory, is a denial of equal protection of the law, is a protective and preferential statute favoring nondisabled pregnant employees to the discrimination of disabled nonpregnant employees and disabled male employees, and is preempted by Titles VII and XI of the Federal Civil Rights Act.

The Commissioner and Tamara appeal from the decision of the District Court, which brings the case to us for determination.

II.

The MMLA was adopted by the legislature in 1975 (formerly Section 39-7-203, -204, MCA (1978); now Section 49-2-310, -311, MCA (1983).) It provides in pertinent part:

"Maternity Leave--Unlawful Acts of Employers. It shall be unlawful for an employer or his agent to:

"(1) terminate a women's employment because of her pregnancy;

"(2) refuse to grant to the employee a reasonable leave of absence for such pregnancy; ..."

The MMLA is a legislative recognition of changing economic mores in American family life. We are told that in 40% of American households there is a working wife or mother. A growing number of single women support themselves, or themselves and children. In family households the need for two paychecks spreads across the economic spectrum. Even young upwardly-mobile professionals (Yuppies), like a biplane, need two wings working to stay aloft. Economic necessity has converged with the growing insistence of women for equal opportunity in all fields to bring about legislative enactments such as the MMLA. The biblical imprecation that the male shall eat his bread by the sweat of his brow has been broadened; Eve is now included.

Congress has responded to these forces by including in the Civil Rights Act of 1964 provisions outlawing discrimination in employment because of gender. Section 703(a)(1) of the Act provides that it is an unlawful employment practice for an employer:

"to ... discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national original, ..." 42 U.S.C. Sec. 2000e-2(a)(1)

The provisions of the Civil Rights Act of 1964 relating to sex discrimination in employment (hereafter Title VII) were tested in General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343. General Electric, as a self-insurer, had provided nonoccupational sickness and accident benefits to all its employees amounting to 60% of their straight-time weekly earnings up to a maximum of 26 weeks. Several women employees became pregnant while employed by General Electric, and while the plan was in effect, and presented a claim to the company for disability benefits under the plan to recover for the period while each was absent from work as a result of the pregnancy. The claims were routinely denied on the ground that the...