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Recent Developments Fordham Law Review Volume 45 Issue 6 Article 6 1977 Recent Developments Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Recent Developments, 45 Fordham L. Rev. 1202 (1977). Available at: https://ir.lawnet.fordham.edu/flr/vol45/iss6/6 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. RECENT DEVELOPMENTS Civil Rights-Sex Discrimination-Employer's Failure to Provide Pregnancy Disability Benefits Does Not Violate Title VII.-As part of its "cradle-to-grave" 1 fringe benefit package, General Electric Company (GE) provides a comprehensive disability insurance plan. Employees receive ben- efits based on a percentage of their weekly income for the period they are totally disabled by a non-occupational sickness or accident. Benefits are payable regardless of the cause of the incapacity, 2 with one exception- disabilities arising from pregnancy.3 Thus while the plan excludes a disability limited to women, it covers all those which affect only males (e.g., vasec- tomies and circumcisions).4 A class action challenging the legality of this exclusion was instituted by women employees who had been denied preg- nancy disability benefits.5 The suit charged that to exclude pregnancy-related 6 disabilities from otherwise comprehensive coverage7 constituted a violation of Title VII of the Civil Rights Act of 1964. The district court found that GE had engaged in sex discrimination violative of Title V[II8 The Court of Appeals for the Fourth Circuit affirmed. 9 1. Brief for Appellee at 54, Gilbert v. General Elec. Co., 519 F.2d 661 (4th Cir. 1975), rev'd, 97 S. Ct. 401 (1976). 2. General Elec. Co. v. Gilbert, 97 S. Ct. 401, 404 (1976). GE's plan covers more than the typical sickness and accident. The company has paid for absences caused by skiing accidents, purely elective cosmetic surgery, attempted suicide, circumcision, alcoholism and drug addiction cures, venereal disease, and hair transplants. Id. at 416 (Brennan, J., dissenting); Brief for Appellee at 25, Gilbert v. General Elec. Co., 519 F.2d 661 (4th Cir. 1975), rev'd, 97 S. Ct. 401 (1976). 3. General Elec. Co. v. Gilbert, 97 S. Ct. 401, 404 (1976). Commentators have stressed that disability benefits plans are not expected to cover the mere condition of pregnancy. Pregnancy benefits would be limited to the actual period of disability and would not extend into the post-disability child rearing period. Binder, Pregnancy, Maternity Leave and Title VII, I Ohio No. U.L. Rev. 31 (1973); Koontz, Childbirth and Child Rearing Leave: Job Related Benefits, 17 N.Y.L.F. 480 (1971). For judicial findings regarding the duration of most pregnancy-related disabilities see note 8 infra. 4. Gilbert v. General Elec. Co., 375 F. Supp. 367, 382-83 (E.D. Va. 1974), aff'd, 519 F.2d 661 (4th Cir. 1975), rev'd, 97 S. Ct. 401 (1976). 5. General Elec. Co. v. Gilbert, 97 S. Ct. 401, 404 (1976). Seven named female employees were joined by their labor union, the International Union of Electrical Radio and Machine Workers, AFL-CIO-CLC, and its affiliate, Local 161. Id. at 405 n.5. 6. In addition to excluding pregnancy benefits, the plan calls for immediate cancellation of all coverage when an employee takes a maternity leave, but provides for 31 days continued coverage in cases of personal leave, strike or layoff. Id. at 404-05 n.4. Under this provision one plaintiff was denied benefits for the period of time she was disabled by a pulmonary embolism suffered subsequent to, but unrelated to an abnormal pregnancy. Had the employee been on strike, she would have recovered. Id; at 416 n.4 (Brennan, J., dissenting). 7. Id. at 404. 42 U.S.C. § 2000e et seq. (1970), as amended, (Supp. V, 1975) (originally enacted as Act of July 2, 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 253). 8. Gilbert v. General Elec. Co., 375 F. Supp. 367 (E.D. Va. 1974), aff'd, 519 F.2d 661 (4th 1202 RECENT DEVELOPMENTS 1203 The Supreme Court reversed, holding that a disability benefits plan does not violate Title VII by its failure to cover pregnancy-related disabilities. General Electric Co. v. Gilbert, 97 S. Ct. 401 (1976). Title VII of the Civil Rights Act of 196410 is intended to equalize em- ployment opportunity'" by eliminating discriminatory practices based on race, color, religion, sex or national origin.' 2 The Act bans sex discrimination in the terms, conditions and privileges of employment' 3 with certain statutorily defined exceptions.1 4 The sex discrimination provision, apparently added as a Cir. 1975), rev'd, 97 S. Ct 401 (1976). The district court made findings, inter alia, on the relationship of pregnancy to disease and disability. The court found that ten percent of pregnancies are terminated by miscarriage which is usually disabling for only a few days. Normal pregnancy is disabling for six to eight weeks. Ten percent of pregnancies involve complications other than miscarriage. These complications may be disabling and, in approximately one half the cases, hospitalization is required. Id. at 376-77. The court found that while pregnancy itself is not a disease, complications "incident to pregnancy come within the meaning of 'disease.' " Id. at 376. Five percent of pregnancies (half the abnormal pregnancies) are complicated by diseases such as hypertension and diabetes which are stimulated by rapid weight gain associated with pregnancy. Five percent of pregnancies are complicated by "pregnancy-related" diseases such as detachment or mislocation of the placenta. Id. 9. Gilbert v. General Elec. Co., 519 F.2d 661 (4th Cir. 1975), rev'd, 97 S. Ct. 401 (1976). In affirming, the court of appeals distinguished the Supreme Court's intervening decision in Geduldig v. Aiello, 417 U.S. 484 (1974), as inapposite in a Title VII context. 419 F.2d at 666. In Geduldig, a state administered disability insurance program which excluded disabilities arising from normal pregnancy was held not to violate the equal protection clause of the fourteenth amendment. See notes 59-69 infra and accompanying text. 10. 42 U.S.C. § 2000e et seq. (1970), as amended, (Supp. V, 1975). 11. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Griggs v. Duke Power Co., 401 U.S. 424 (1971). 12. 42 U.S.C. § 2000e-2(a)(1) (1970), as amended, (Supp. V, 1975). Section 2000e-2(a)(1) provides in relevant part- "It shall be an unlawful employment practice for an employer-to fail or refuse to hire or 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 origin . ." See generally Developments-Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109 (1971) [hereinafter cited as Developments]. 13. See note 12 supra. The EEOC fringe benefit guidelines state that fringe benefits are included within the phrase "terms, conditions, and privileges of employment" in which Title VII prohibits discrimination. 29 C.F.R. § 1604.9 (1975). 14. 42 U.S.C. §§ 2000e-2(e)-(h), (")(1970). The principal exception applicable to cases involving sex discrimination (but not racial discrimination) is the bona fide occupational qualifica- tion (BFOQ) exception: An employer may hire employees "on the basis of... sex . .. in those certain instances where.., sex... is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. ." 42 U.S.C. § 2000e--2(e)(l) (1970). The BFOQ exception is to be narrowly construed. Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, cert. denied, 404 U.S. 950 (1971) (being female not a BFOQ for job of flight cabin attendant); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 232 & n.3 (5th Cir. 1969) (switchman position does not require male employees); 29 C.F.R. § 1604.2(a) (1975). Employers have the burden of establishing a BFOQ exception. Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d at 232. 1204 FORDHAM LAW REVIEW [Vol. 45 consequence of a last-minute attempt to defeat passage of the Act as a whole,' 5 is accompanied by little legislative history to aid the courts in determining the extent of its intended reach. 16 Indeed, the Equal Em- ployment Opportunity Commission (EEOC), 17 the agency charged with the interpretation1 8 and enforcement 9 of Title VII, had difficulty in defining the employment practices which Congress intended to prohibit as sex discrimina- tion. 20 Particularly vexing was the issue of whether the sex discrimination provision is applicable outside the context of direct male/female competition 2 to prevent disadvantageous treatment of the members of one sex on the basis of a sex-unique characteristic such as pregnancy. 22 Although initially of the Another exception assures consistency between Title VII and the Equal Pay Act. Title VII permits an employer to "differentiate upon the basis of sex in determining the amount of the wages or compensation paid . employees . .if such differentiation is authorized by . section 206(d) of Title 29." 42 U.S.C. § 2000(e)-2(h) (1970). Section 6(d)(1) of the Equal Pay Act provides that an employer may differentiate on the basis of sex in wages paid "pursuant to (1)a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex .
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