Pan American World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight Program Litigation, In re

• Decision Date: 13 July 1990
• Docket Number: No. 88-5509,88-5509
• Parties: 53 Fair Empl.Prac.Cas. 707, 54 Empl. Prac. Dec. P 40,090, 59 USLW 2118 In re PAN AMERICAN WORLD AIRWAYS, INC., MATERNITY LEAVE PRACTICES & FLIGHT ATTENDANT WEIGHT PROGRAM LITIGATION. Susan Gail LEONARD, on behalf of herself as an individual and on behalf of all others similarly situated, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant-Appellant, Air Line Pilots Association, et al., Defendants. Barbara Ann GARDNER, Sherry Knipple and Marilyn White, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant-Appellant, Transport Workers Union, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1457

905 F.2d 1457

53 Fair Empl.Prac.Cas. 707,

54 Empl. Prac. Dec. P 40,090, 59 USLW 2118

In re PAN AMERICAN WORLD AIRWAYS, INC., MATERNITY LEAVE

PRACTICES & FLIGHT ATTENDANT WEIGHT PROGRAM LITIGATION.

Susan Gail LEONARD, on behalf of herself as an individual and on behalf of all others similarly situated, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant-Appellant, Air Line Pilots Association, et al., Defendants.

Barbara Ann GARDNER, Sherry Knipple and Marilyn White, Plaintiffs-Appellees, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant-Appellant, Transport Workers Union, Defendant.

No. 88-5509.

United States Court of Appeals Eleventh Circuit.

July 13, 1990.

Joseph P. Klock, Jr., Carlos A. Batlle, Miami, Fla., for Pan American World Airways, Inc.

Donald B. Myers, Seattle, Wash., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK and EDMONDSON, Circuit Judges, and RUBIN ^*, Senior Circuit Judge.

ALVIN B. RUBIN, Senior Circuit Judge:

A female flight attendant, discharged from her position for failing to comply with her company's maternity-leave policy, filed a class action against the company, challenging the policy on the ground that it was discriminatory on the basis of sex. The district court found that the policy was discriminatory and awarded relief to the complaining flight attendant, despite the company's objection that the policy as applied to her was not discriminatory and, therefore, that she was not a "proper" member of the plaintiff class. Reurging this objection with various modifications and, further, arguing that the district court lacked subject matter jurisdiction over the flight attendant's claim, the company asks us to overturn the award. For the reasons stated below, we affirm.

I

In 1967 National Airlines, an air carrier that has since been acquired by Pan American World Airways, entered into a collective bargaining agreement with the Airline Pilots Association (ALPA), the labor organization then representing its flight attendants. That agreement included a "maternity clause," which required a flight attendant, on learning that she was pregnant, to "resign or be discharged without recourse."

National and the ALPA modified this maternity clause in 1971. The new agreement eliminated pregnancy as a cause for discharge, but it required a flight attendant who became pregnant to notify National of her condition immediately on learning of it herself. She was then to be placed on leave without pay for the duration of her pregnancy. Finally, she was required to return to work within sixty days after delivering her child unless National's medical examiner concluded that she should be afforded additional time. The agreement provided that violation of any of these requirements constituted cause for discharge.

In March 1973, Marilyn White, who had been employed as a flight attendant by National since 1963, informed her superiors that she was pregnant. By that time she had been pregnant at least twenty-one and a half and perhaps as many as twenty-four weeks. Concluding that White had failed to give notice as soon as she discovered she was pregnant, National promptly discharged her.

White and several other former National employees later filed a class action against National, on behalf of themselves and other similarly-situated National employees, alleging that National's maternity-leave policies and practices were discriminatory on the basis of sex and therefore violated Title VII of the Civil Rights Act of 1964 (Title VII). ¹ In its answer to the petition, National denied the charge of discrimination. In the alternative, National maintained that even if the contested policy was discriminatory, it did not violate Title VII because it was reasonably necessary to the successful operation of National's business and reflected a "bona fide occupational qualification" (BFOQ). The substance of this defense was that grounding pregnant flight attendants was essential to assure passenger safety. According to National, because of the loss of stamina and agility that they experience as a result of their condition, pregnant flight attendants are unable to render necessary assistance to passengers during flight emergencies.

The district court certified the class action, ² defining the class as "[f]emale personnel who have been employed by National Airlines, Inc. on or after January 29, 1972, or who may become so employed in the future," and designated White as the co-representative for the "subclass of female flight cabin attendants." ³ Shortly thereafter, the court ordered separate trials of the liability and remedy issues. ⁴

In an opinion written after the liability-phase hearing, the court concluded that the plaintiffs had carried their burden of establishing that the maternity-leave policy embodied in the 1971 agreement was prima facie discriminatory. The court then proceeded to consider what it termed National's "BFOQ" defense. The court began its analysis by dividing the policy into two separate subpolicies, each one corresponding to a distinct sentence in the agreement--the "stop" policy (the requirement that the attendant take a leave of absence immediately on giving the company notice of her pregnancy) and the "start" policy (the requirement that the attendant return to work within sixty days of the birth of her child). The court did not, at this point in its opinion, mention the sentence in the agreement that required a flight attendant to give notice of her pregnancy.

The court rejected National's defense of the stop provision. Purporting to balance the attendants' Title VII interest against National's interest in passenger safety, the court laid down the following rules regarding the circumstances under which National could lawfully force pregnant attendants to take maternity leave: (i) first trimester: National could not require the attendant to take leave; (ii) second trimester: National could require the attendant to take leave, unless National's medical examiner certified that she was medically fit and capable of carrying out her assigned duties; and (iii) third trimester: National could require the attendant to take leave. Regarding the second provision, which set out the start policy, the court accepted the proffered defense.

Following the liability-phase hearing, the court considered White's demand for back pay, reinstatement, and attorney's fees. In its brief to the court, National contended that White should not be regarded as a member of the subclass of flight attendants and, in any event, was not entitled to relief. As National pointed out, White had not "beg[u]n her maternity leave [until] the 23rd or 24th week of pregnancy." ⁵ According to National, she thereby waited "three to four weeks beyond the time that National could without question [have] require[d] her to stop flying." ⁶ Consequently, National argued, White was not discharged on the basis of a discriminatory policy; rather, she was discharged "at a time when the [maternity-leave] standard was ... clearly lawful." ⁷ The district court disagreed. According to the court, it was obligated to presume, in the absence of clear and convincing proof to the contrary, that White would have complied with National's maternity-leave policy if it had not been discriminatory. Finding no evidence tending to overcome this "presumption," the court awarded White the requested relief.

II

In its answer to the complaint and in several documents subsequently submitted to the district court, National described its defense as a "business necessity or BFOQ defense." The district court, however, chose to use only the latter of these alternative denominations in addressing the defense.

In a Title VII sex-discrimination action, two different theories of liability are potentially available to the plaintiff: disparate treatment and disparate impact. ⁸ The disparate-treatment theory, this court has noted, can be further subdivided into two subtheories: facial discrimination and pretextual discrimination. ⁹ A different affirmative defense may be offered to each of these theories of liability. In a disparate-treatment case, the defendant's affirmative defense is that the policy, practice, or action is based on a BFOQ. In a disparate-impact case, on the other hand, the appropriate defense is that of business necessity. ¹⁰

Shortly before the liability-phase hearing, as the district court correctly noted, the Supreme Court had ruled that discrimination on the basis of pregnancy was not tantamount to sexual discrimination per se. ¹¹ One effect of this ruling was to prevent a person aggrieved by a pregnancy-discriminatory policy from obtaining Title VII relief on the basis of the "facial discrimination" disparate-treatment subtheory. ¹² Consequently, at the time of this litigation, White's counsel may have assumed that the only theories open to the plaintiffs were that the policy had a disparate impact and that the policy was pretextual. ¹³ The appropriate defense to the latter theory--the one on which the parties and the district court concentrated their attention--was business necessity rather than BFOQ. ¹⁴

Relabelling the defense on which National relied in defending itself against White's disparate-impact claim does not affect the result of this appeal. We discuss this matter only to make it clear that "business necessity" is the correct legal description of that defense.

III

In support of its claim that the district court's award to White must be set aside, PanAm advances three arguments. First, White was neither a suitable representative for the subclass of cabin flight attendants nor, indeed, even a member of that subclass. Second, she was not discharged on the basis of a discriminatory policy and, therefore, suffered no Title VII harm. Third, the district court lacked subject matter jurisdiction over White's claim for relief. We begin our...