Richards v. Omaha Public Schools

• Decision Date: 07 August 1975
• Docket Number: No. 39893,39893
• Citation: 232 N.W.2d 29,194 Neb. 463
• Parties: , 11 Fair Empl.Prac.Cas. (BNA) 268, 10 Empl. Prac. Dec. P 10,557 Evelyn Sue RICHARDS, Appellee, Cross-Appellant, v. OMAHA PUBLIC SCHOOLS, Appellant, Cross-Appellee, Nebraska State School Board Association, Amicus Curiae.
• Court: Nebraska Supreme Court

Page 29

232 N.W.2d 29

194 Neb. 463, 11 Fair Empl.Prac.Cas. (BNA) 268,

10 Empl. Prac. Dec. P 10,557

Evelyn Sue RICHARDS, Appellee, Cross-Appellant, v.OMAHA PUBLIC SCHOOLS, Appellant, Cross-AppelleeNebraska State School Board Association, Amicus Curiae.

No. 39893.

Supreme Court of Nebraska.

Aug. 7, 1975.

Syllabus by the Court

1.Discrimination by an employer against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's sex is an unlawful employment practice under the Nebraska Fair Employment Practice Act.

2.A maternity leave policy which requires that an employee's leave begin a fixed period before the expected date of birth is an unlawful employment practice.

3.A classification based on pregnancy is not a classification based on sex.

4.Continuity of instruction is a significant and legitimate educational goal.

5.A maternity leave policy which requires that the leave for teachers begin at the start of a semester is not an unlawful employment practice.

6.A sick leave policy which provides no benefits for disability occurring while the employee is on leave of absence for any purpose, including maternity, is not an unlawful employment practice.

Baird, Holm, McEachen, Pedersen, Hamann & Haggart, Alex M. Clarke, Omaha, for appellant.

Crosby, Guenzel, Davis, Kessner & Kuester, Steven G. Seglin, Lincoln, for appellee.

Cline, Williams, Wright, Johnson & Oldfather, L. Bruce Wright, Edward G. Heilman, Lincoln, for amicus curiae.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

PER CURIAM.

This case involves a controversy under the Nebraska Fair Employment Practice Act.The complainant, Evelyn Sue Richards, was employed by the respondent, Omaha Public Schools, as a home economics teacher at Bancroft Junior High in Omaha, Nebraska.

On May 24, 1972, the complainant notified the respondent that she was pregnant but would like to continue her teaching duties until the end of October 1972.The complainant had been advised by her physician that the birth would occur on or about December 7, 1972.

The respondent advised the complainantshe would be granted a leave of absence for maternity but would not be allowed to teach during the fall semester.The complainant then filed a charge of employment discrimination with the Nebraska Equal Opportunity Commission alleging that the respondent had discriminated against her because of her sex.

Under the Nebraska act it is an unlawful employment practice for an employer to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of the individual's sex.§ 48--1104, R.R.S.1943.

After an unsuccessful conciliation conference, the matter was referred to a hearing examiner and an evidentiary hearing was held.Following this hearing there was a review hearing before the commission.The commission found that the maternity leave policy and sick leave policy of the respondent constituted unlawful employment practices.The complainant was awarded back pay for the 2-month period during the fall semester during which she was not allowed to teach; sick leave pay for 16.5 days; and she was credited with 156.5 duty days.The respondent then filed this action under section 48--1120, R.R.S.1943, to review the decision and order of the commission.

The trial court affirmed the order of the commission so far as the maternity leave policy of the respondent was concerned but vacated that part of the order relating to sick leave.The respondent has appealed and the complainant has cross-appealed.

The issues presented by the appeal and cross-appeal are essentially questions of law.There is little or no dispute in the record concerning any material fact.

The maternity leave policy of the respondent, which was in force in May 1972, provided that the leave should begin at mid-pregnancy and the employee would not be allowed to return to work for a full year after the birth except in cases approved by the superintendent.

Effective September 1, 1972, the respondent's maternity leave policy was changed to provide that the leave would normally commence with the beginning of the sixth month of pregnancy but the actual starting date was to be at the discretion of the superintendent based upon the ability of the employee to perform her duties, the health and safety of the employee, 'and in the case of teachers, the continuity of classroom instruction.'

The policy was changed again, effective October 2, 1972, by eliminating the provision concerning the sixth month of pregnancy as the normal date of leave commencement.

A maternity leave policy which requires that the leave begin a fixed period before the expected date of birth violates the due process clause of the Fourteenth Amendment to the Constitution of the United States.Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52.To the extent that the respondent's maternity leave policy in effect in May 1972, required the leave to begin at mid-pregnancy, it was invalid.However, in this casethe complainant was paid for the months of June, July, and August in 1972 and she was allowed to return to her employment at the beginning of the second semester in February 1973.Thus, the real issue here so far as the respondent's maternity leave policy is concerned, is whether the respondent could refuse to allow the complainant to teach during the first 2 months of the fall semester in 1972.

The complainant's theory of the case, stated briefly, is that disability resulting from pregnancy must be afforded the same treatment as disability resulting from an illness.The complainant contends that any employment policy which differentiates between disability resulting from pregnancy and disability resulting from an illness results in a discrimination because of sex.

This issue has been described as the most difficult and troublesome one in the area of sex discrimination.Most of the cases which have considered this issue support the complainant's analysis of the question.These decisions for the most part are by the lower and intermediate federal courts and are based on the 'guidelines' promulgated by the federal Equal Employment Opportunity Commission(EEOC.)Under these guidelines the disability caused by pregnancy is a temporary disability which must be treated the same as any other temporary disability under sick leave plans including the commencement and duration of leave.See29 C.F.R., § 1604.10.

The guidelines constitute an administrative interpretation of the federal act.The United States Supreme Court has held that the guidelines are entitled to 'great deference' where the act itself and the legislative history of the act supports the commission's construction.Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158.However, in a recent case two dissenting opinions suggested that the authoritative nature of the guidelines is limited.SeeAlbemarle Paper Co. v. Moody, 1975, --- U.S. ---, 95 S.Ct. 2362, 45 L.Ed.2d 280.

There is little in the way of legislative history to serve as a basis for determining whether the guidelines express the will of Congress in regard to pregnancy and sex discrimination.The word 'sex' was added by a floor amendment one day before the bill was passed by the House of Representatives.SeeMiller, 'Sex Discrimination and Title VII of the Civil Rights Act of 1964,'51 Minn.L.Rev. 877.However, in a related area the legislative history of the Equal Rights Amendment indicates that Congress apparently felt the amendment did not prohibit legislation dealing with a physical characteristic unique to one sex, so-called single-sex-characteristic laws.SeeComment, Geduldig v. Aiello: Pregnancy Classifications...