No. 84-172
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
THE MILLER-WOHL COMPANY, INC.,
Petitioner and. Respondent,
COpllr4ISSIONER OF LABOR AND INDUSTRY,
STATE OF MONTANA, AND T W R A L. BULEY,
Respondents and Appellants.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
R. Scott Currey argued, Dept. of Labor & Industry,
Helena, Plontana
Tipp, Hoven, Skjelset & Frizzell; Richard R. Buley
argued for Tamara Buley, Missoula, Montana
For Respondent:
Church, Harris, Johnson & Williams; Cresap S. IlcCracken,
Great Falls, Montana
Charles L. Fine argued for Miller-Wohl Co., Phoenix,
Arizona
For Amicus Curiae:
Kathleen H. Richardson for Women's Law Section, Havre,
Montana
Patten & Renz; Jeffrey Renz for American Civil
Liberties Union, Billings, Montana
Kathleen F. Holden for Montana Human Rights Commission,
Helena, Montana
Hilley & Loring; Emilie Loring for Montana Education
Association, Great Falls, Montana
Submitted: September 26, 1984
Decided: December 28, 1984
Filed: D C ; 8 1984
h !
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
This is an appeal. by Tamara L. Buley and the
Commissioner of Labor and Industry from a judgment of the
District Court, Eighth Zudicial 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 Filler-Wohl was one of IIO 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-Wohlls discharge of Tamara because of her
pregnancy was in direct violation of the Montana Yaternity
Leave Act (MMLA). Moreover, as Title VII of the Civil Rights
Act of 1964, and the Pregnancy Discrimination Act of the
fezera1 government are interpreted by federal regulations, it
appears that Miller-Wohlls no leave policy and discharge of
Tamara may have viol-ated those federal acts.
(2) Usually an attack on leais!.ation 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 MJILA. 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 provjde women equality of
opportunity in employment could be preserved, and the
provisions of the PNLA 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 YMLA valid.
I.
Miller-Wohl hired Tamara Buley as a retail sales clerk
at its Three Sisters store in Great Falls, Montzna 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) fox 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 "morninq sickness.I' 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, Killer-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 S;s.bor and Industry (Commissioner) .
She claimed that Miller-Wohl- had violated the Montana
Maternj ty 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 $6,5?3.60.
The federal district court concurred in the
Commissioner's conclusions. Mil-ler-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 Ff@II,A 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 compJ-aints failed to present an
affirmative federal claim over which the court could assert
jurisdiction and dismissed the action. Miller-Wohl Go., Inc.
v. Commissioner of Llabor and Industry, et al. 685 F . 2 d 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 mLA 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
p r e e m p t e d by T i t l e s VII a n d X I o f t h e Fed-era1 C i v i l R i g h t s
Act.
The Commissioner and T a n a r a a p p e a l from t h e d e c i s i o n o f
the District Court, which brings the case to us for
determination.
11.
The MJIT,A was adopted 13y the legislature in 1975
( f o r m e r l y S e c t i o r ! 39-7-201, -208, MCA, (1978); now S e c t i o n
49-2-310, -311, MCA, (1.983).) It provides i n pertinent part:
" M a . t e r n i t y Leave -- [Jnlawful --o f Employers.
Acts It
shal.1 b e unlawful-for a n employer o r h i s a g e n t t o :
" (1) t e r m i n a t e a women' s employment b e c a u s e o f h e r
pregnancy;
"(2) r e f u s e t o g r a n t t o t h e employee a r e a s o n a b l e
l e a v e o f absence f o r such pregnancy;. . ."
The MMLA is a legislative recognition of changing
economic mores i n American f a m i l y l i f e . We are told that in
4 0 % o f American h o u s e h o l d s t h e r e i s a w o r k i n g w i f e o r m o t h e r .
A growing number of single women support themselves, or
t h e m s e l v e s and c h i l d r e n . I n family households t h e need f o r
two p a y c h e c k s spreads across the economic spectrum. Even
young upwardly-mobile professionals !Yuppies) , like a
hiplane, need two w i n g s w o r k i n g to stay aloft. Economic
n e c e s s i t y h a s c o n v e r g e d w i t h t h e growing i n s i s t e n c e o f women
for equal opportunity in all fields to bring about
legislative enactments such as the PWLA. The biblical
i m p r e c a . t i o n t h a t t h e male s h a l l e a t h i s b r e a d by t h e s w e a t o f
h i s brow h a s been b r o a d e n e d ; Eve i s now i n c l u d e d . .
C o n g r e s s h a s r e s p o n d e d t o t h e s e f o r c e s by i n c l u d i n g i n
the Civil Rights Act of 1964 provisions outlawj-ng
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 privileqes
of employment, because - -
of such individual's race,
color, religion, sex, or national oriqinal, . . ."
42 U.S.C. §2000e-2(a]( (
) 1
The provisions of the Civil Rights Act of 1964 relating
to sex discrimination in employment (hereafter Tit1 e 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 nonoccupatj.ona1 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 plan did
not provide disability benefit payments for any absence due
to pregnancy. The women employees charged that the refusal
of General Electric to pay disability benefits under the plan
for time lost due to pregnancy and child birth discriminated
against them because of sex, and so violated Title VII. The
United States Supreme Court refused to recognize the
propriety of an Equal Employment Opportunity Commission
guideline that pregnancy disability should be treated on the
same terms and conditions as other temporary disabilities,
and held that pregnancy-related disabilities constitute an
additional risk unique to women, and that the failure of
General Electric to compensate women for this risk did not
d.estroy the presumed parity of the benefits accruing to men
and women alike which resulted from the facially evenhanded
inclusion of risks in General Electric's Plan.
The congressional response to the decision in Gilbert
was an amendment in 1-979 to Title VII to include the
Pregnancy Di.sability Act, Section 701 (k)(PDA) . The pertinent
provision of PDA is:
"The terms 'because of sex' or 'on the basis of
sex' include, but are not limited to, because of or
on the basis of pregnancy, childbirth, or related
medical conditions; and women affected by
pregnancy, child.bi.rth, or related medical
conditions shall be treated the same for all
employment-related purposes, including receipt of
benefits under fringe benefit programs, as other
persons not so affected but similar in their
ability or inability to work, and nothing in
Section 703 (A) of this Title shal.1 be interpreted
to permit otherwise . . ."
The outpou-ring of congressional statements a t the time
of the passage of PDA in the House and Senate Reports and by
House members and senators on the floors of their respective
houses ind-icate the passion and determination of
congressional members to ban discrimination of all types j n
.
employment practices. Illustrative with respect to the PDA
was the House Report:
"As testimony received by this Conmittee
demonstrates, the assumption that women will become
pregnant and leave the labor force leads to the
view of women as marginal workers, and is at the
root of the discriminatory practices which keep
women in low paying and deadend jobs. H.R.6075
[PDAI unmistakenly reaffirms that sex
discrimination includes discrimination based on
pregnancy and specifically defines standards which
require the pregnant workers be treated the same as
other employees on the basis of their ability or
inability to work." 5 U.S. Code Cong. & Admin.
News 4 7 4 9 , 4 7 5 1 (1978).
In adopting the Civil Rights Act of 1964, and the PDA,
Congress indicated its intention to permit state action
consistent with those acts. Section 4 2 U.S.C 2000h-4 reads:
"Nothing contained in any title of this Act shall
he construed as indicating an intent on the part of
Congress to occupy the fie1.d in which any such
Title operates or to the exclusion of state laws on
the same subject matter, nor shall any provision of
this Act he construed as invalidating any provision
of state law unless such provision is inconsistent
with any of the purposes of this Act, or any
provisions thereof."
Title VII of the Act, concerning employment
discrimination also contains a section, Section 42 U.S.C.
2000e-7 which reads:
"Nothing in this subchapter [Title VII] shall. be
deemed to exempt or relieve any person from any
liability, duty, penalty or punishment provided by
any present or future law of any state or of any
subdivision of a state, other than any such law
which proports to require or permit the doing of
any act which would he an unlawful employment
practice under this chapter."
One further provision of the MMLjA should be noted.
Reinstatement of the pregnant employee after leave of absence
is required in the Act. Former Section 39-7-204 (now Section
49-2-311) provides:
"Reinstatment of j b following
o regnancy-related
leave of absence. Upon signifyiEg her intent to
returnat the end of her leave of absence, such
employee ~ h a . be~ reinstated to her original job or
1
to an equivalent position with equivalent pay and
accumulated seniority, retirement, fringe benefits
and other service credits, unless in the case of a
private employer, the employer ' s circumstances have
so changed a s t o make itimpossible or unreasonable
to do so. "
The foregoing paragraphs summarize the federal and state
enactments under which Tamara's case must be resolved.
The issue to be decided here is whether the MMLA is
invalid because of, or preempted by, Title VII and the PDA.
If the answer is affirmative, Tamara has no case and the
judgment in the District Court must be affirmed.
On her appeal Tamara contends that the MMLA is
consistent with the purposes of Title VII which is to
eliminate empl oyment discriminaticn between the sexes; that
the MMLA does not violate Title VII because it does not
limit, deprive or adversely affect the employment
opportunities of any individual; that the MMI,P which grants
reasonable leave for pregnancy disabilities is not a state
protectionist law in violation of Title VIT; that the MMLA is
not preempted by Title T7JI for the reason that Congress did
not intend to preempt state laws by the passage of PDA and in
fact specifically examined and approved the MP41,A; that mtLA
is not unconstitutional as a denial of Equal Protection Laws
because pregnancy disability laws are not suhject to
constitutional scrutiny, but if they are, the MMLA bears a
close and substantial relationship to the legitimate state
objective of eliminating employment discrimination against
women because of pregnancy.
The Commissioner contends that the MMLA, viewed in the
light of the purposes of Title VII, is not inconsistent with
federal law and so is not preempted by the same; in addition
he contends that Mil-ler-Wohl may not attack the MMLA with a
policy which in itself violetes Title VII; Commissioner
further contends with respect to the Equal Protection
argument that legislation based on pregnancy is not a
gender-based classifica.tion for the purpose of equal
protection analysis ~ n d need only be justified on a
reasonable basis, but even so, the MMLA could survive the
more difficult test for gender-based classifications, in tha-t
the W L A bears a substantial relationship to an important
state interest.
The Montana Human Rights Commission, appearing amicus
curiae, supports the constitutjonality and validity of the
B J I A contending that the
Uf,, federal constitution does not
prohibit the use of gender-based classifications; that the
MMLA bears a close and substantial relationship to important
government objectives; that the individual dignity section of
Article 11 of the Montana Constitution does not prevent the
exercise of the legislature's power to enact statutes
containing gender-based classfications; that the Pfl.LA is not
preempted by the federal acts; and that in the alternative,
this case is not ripe for decision by us on constitutional
grounds and we should remand the case for further proceedings
rather than hold MMLA unconstitutional.
The combined brief of the American Civil Liberties
Union, the National Organization for Women, the NOW Legal
Defense and Education Fund, and the League of Women Voters,
appearing amici curiae, while supporting the objective of
Tamara generally, takes a somewhat different tack. These
amici contend that if this Court construes the MMLA to permit
employers to grant greater employment benefits to pregnant
employees than to others similar in their ability or
inability to work, the MMLA would confl-ict with Title VII; on
the other hand, the MMJ,A and Title VII impose complementary
obi-igations on employers and so this Court should declare
that Montana employers must comply with both statutes to
remove any apparent conflict between the two. Therefore this
Court should extend MMLA ' s provisions in a nondiscriminatory
fashion rather than invalidate the statute and deny all
Montana citizens a benefit the legislature intended to
con£er .
On the other hand, Mill-er-Wohl, as the respondent on
appeal, contends that the MMLA is defective because it does
not require the pregnant employee to be disabled from working
in order to be eligible for a leave of absence or protected
from discharge, and it i s therefore discriminatory as to
other employees of Miller-Wohl; that the District Court was
correct when it found that the MMLA wa-s preempted and
superseded by and in violation of Titles VTI and XI of the
Civil Rights Act; that the MMLA is a protective and
preferential statute and conflicts with Title VII in that it
is impossible for a Montana employer to comply with the MMLA
and Title VII at the same time; that the MMLA violates the
Equal Protection Clause of the Fourteenth Amendment because
it provides different treatment of persons on the basis of
their sex; that in determining the equal protection argument
the intermediate test or affirmative action test should be
applied; and that the MWLA has no close or substantial
relationship to any governmental interest.
The Women's Law Section of the State Ear of Montana,
appearing amicus curiae, supports the appellants in
cant-ending that the MMLA is not preempted by Title VJJ; that
under traditional eaual protection analysis the W L A does not
create a gender-based classification; but if the MMLA does
create a gender-based classification, it is not an invidious
discrimination.
The Montana Education Association, appearing amicus
curiae, also supports the appel18nts, contending that the
MMLA is not preempted, and does not violate constitutional
equal protection guarantees; that it is not an unlawful
protective legislation, and that it protects an important
state governmental interest.
111.
Miller-Wohl is a chain that operates about 290 ladies'
wear stores throughout the United States. Four such stores
are located in Montana.
On the face of them, the written employment policies of
Miller-FJohl are nond.iscriminatory. The empl-oyment policies
are printed in a booklet, at least one copy of which is kept
at each store, sometimes distributed to employees (Tamara
says she did not receive one), and the provisions explained
and discussed with the store managers at employee meetings.
The written employment policies contain the following
provisions which are pertinent to this case:
"It is the policy of the Miller-FJohl. Company to
forbid acts of discrimination in all matters
dealing with employees ...
"It has been the established policy of Miller-Wohl
to provide equal employment opportunties to all
qualified appl-icants who seek job opportunities
with the Company at every level of employment.
Hence, we do not d-iscriminate against anyone
because of race, color, age, sex, or religion.
"11. Sick Leave:
All regular full-time employees with. one year
seniority are entitled to receive up to five days
of sick leave with pay for legitimate illness
incurred during the calendar year.
"16. Leaves of Absence:
All employees, after one year of seniority, may
receive a leave of absence in cases of protracted
illness. Such leaves of absence shall be for three
months. If the employee requires more than three
months, a n additional three months may be granted
upon reapplication.
"All other types of leaves are strictly wjth.in the
discretion of the Manager.
"17. Maternity:
When an employee leaves for pregnancy, she will be
granted a leave of absence for a period of time
that includes the post-natal physical examination.
"22. Time Off:
If you need to have time off from your job, make
your request to your Manager. A limited amount of
time off may be granted for good reason.
"Absence is considered to be excused for the
following reasons only:
" I . Illness certified by doctor's certificate; 2.
A death in the employee's immediate family; 3. A
wedding in the employee's immediate family; 4.
With the Manager's permission.
"28. Extension of Benefits:
The benefits described herein are intend-ed
primarily for the regularly working employee. As
such, the benefits are directed toward the
full-time and regular part-time empl-oyees .
These
benefits, however, may be extended to other
employees within the discretion and approval of
your Mana.ger and District Supervisor."
It maybe gleaned from the foregoing paragraphs of the
employment policies of Miller-Wohl that all. employees may
receive a leave of absence wi.thout pay in cases of protracted
illness. In cases of maternity, there is a provj-sion that
the woman will be granted a leave of absence for a period of
time that includes post-natal physical examination. Regular
full-time employees with one year seniority earn sick leave
based on the years in service. Time off for good reason will
be granted; and finally those benefits which are intended
primarily for the full-time and regular part-time employees
may also be extended to other employees in the discretion of
the manager.
Because the written policies indicate that Miller-Wohl
would extend to pregnant women a reasonable leave of absence
to cover their d.isabled time, without pay, it is suggested to
us by the ACLU, NOW, and the League of Women Voters that this
clause should be remanded for clarification of dispositive
factual issues as to whether Miller-Wohl granted such leaves,
and under what circumstances. Undoubtedly, evidence tha-t
Miller-Wohl had granted some employees 1.eave for a.n
appendectomy, a broken limb, or other reason, but had refused
Tamara 1-eave for her pregnancy disa.bility would automatically
suggest that Miller-Wohl applied its discretionary leave in a
discriminatory way. McDonald Douglas Corp. v. Green (1973),
411 U.S. 792. We decline to take t.hat position, however,
because under the testimony in this case, Miller-Wohlls
actual handling of leave for pregnancy cases belies the
benign provisions of i.ts written employment policies. Th.e
area supervisor for Miller-Wohl testified:
"Q. In regard to the one year requirement, as a
supervisor and earlier when you were a store
manager, was there meetings with the store managers
by the supervisor in regards to these items? A.
Yes.
"Q. What was said if anything in reyards to this
ah, maternity leave and sick leave benefits
provisions? A . It was pointed out that in the
company's manual that unless an employee had been
in employment with us for a minimum of one year the
policy would not be deviated from. It would hold
true.
"Q. And this policy a.pplies to male and female
employees? A. Yes it does.
"Q. Have you had. employees with less than one year
of employment who are pregnant, or sick, or ah
injured, or ah, I mean an off the job injury or
other reasons for a leave of absence to be
requested and not granted? A . Would you like to
rephrase that one more time? You talk too fast.
"Q. Try again. Sorry. Have you had employees
with less than one year of employment who have been
pregnant, or ill, or injured, or some other
meritorious reason for requesting or seeking leave
of absence? A. No one has ever been given leave
of absence without being employed for us for one
vear at least."
The store manager from the Great Falls store testified:
"Q. Did Tamara Buley have a guide? A, It was
made ava-ilable to her, yes.
"Q. Did you discuss it with her? A. Yes we did.
"Q. Did you discuss the one year requirement for
benefits? A. Yes we did.
"Q. Is that discussion of the one vear benefit
brought to the attention of the employees? A. It
was brought to the attention of any one that comes
to work in the store."
The testimony of the area supervisor and of the Great
Falls store manager makes it clear that despite the language
contained in the employment guide provisions which relate to
employment policy, in actuality Miller-Wohl conducts a policy
of no lea.ve for any disabled employees with less than one
year employment experience with Miller-Wohl. We therefore
determine this case in the circumstance that in actual
practice Miller-Wohl extended no leave of absence from
employment to any temporarily disabled employee until the end
of the first year of employment.
IV.
IJnder the MMLA, it is unlawful in Yontana for an
employer to terminate a woman's employment because of her
pregnancy, or to refuse to grant the employee a reasonable
leave of absence for such pregnancy. Miller-Wohl. clearly
violated this statute. Section 49-2-310, MCA (1383).
Therefore, unless the MM1,A is invalid as contended. by
Miller-Wohl, the Commissioner was correct in determining a
violation of the MMLA had occurred, and that Tamara va.s
entitled to back pay and penalties for her wrongful
discharge. See section 49-2-311, MCA (1983).
The latest pronouncement by the United States Supreme
Court of which we are aware in the field of pregnancy-related
employment practices is Newport News Ship Building And Dry
Dock Company v. EEOC. (1983), U.S. , 103 S.Ct. 2622,
77 L.Ed.2d 89.
In Newport News, the employer had provided a health
insurance plan which contained hospitalization benefits for
pregnancy-related female disabilities but provided ,-ess
extensive pregnancy benefits for spouses of male employees.
The Supreme Court held that the limitation of benefits for
spouses of male employees discriminated against the male
employees in violation of section 7 0 3 1 a ) ( 3 ) of Title VII. In
holding that Congress by enacting the PDA had overturned the
Supreme Court's holding of General Electric Co. v. Gilbert,
supra, the Supreme Court found that differential treatment of
pregnancy is gender-based discrimination because only women
can become pregnant, that the PDA makes it clear that
discrimination based on pregnancy is on its face
discrimination based on sex and that it is discriminatory to
exclude pregnancy coverage from an otherwise inclusive
benefits p an.
l
Tamara's case presents a somewhat different aspect than
Newport News. Female spouses of male employees were not
included in the Newsport News benefits plan though female
employees were; in Miller-Wohl's case its no-leave policy for
employees under one year of employment experience applies
equally to male and female employees.
While Killer-Wohl's no-leave policy was facially neutral
as to Tamara and her class, it should not escape us that
Tamara is not so much before us because of refusal to grant
her pregnancy leave. She was in fact terminated from her
employment. She was discharged because she was pregnant.
Tit1.e VII provides that it is an unlawful practice for an
employer to discriminate against any individual with respect
to his employment "because of ... sex." Under the PDA, the
term "because of sex" includes "because of . . . pregnancy
... ; women affected by pregnancy . . . shall be treated
the same for all employment related purposes .. . as other
nersons not so affected but similar in their ability or
inability to work . . . " Section 701.(k), PDA (42 U.S.C.
2000e (k)) .
When Title VII as amended by the PDA is understood
properly, it becomes clear that the discharge from her
employment of a woman for her pregnancy, without more, is an
unlawful practice under Title VII and the PDA. It is a
gender-based discrimination. The discharged pregnant woman
is not treated the same for all employment-related purposes
as all other persons not so affected, obviously, because men
cannot be discharged for the same reason. The intent of
Title VII and the PDA that women should be treated equally
with men on matters of employment means that women cannot be
discharged simply because they are pregnant.
Tamara's disability came relatively early in her
pregnancy. Not all women suffer from "morning sickness."
Many pregnant women seem to be able to work nearly to the
hour of their delivery, and to return to employment shortly
after delivery. Inevitably, however, childbirth invol-ves
some period of disability. Testimony before the House
Committee on Education and Labor, considering the adoption of
the PDA, indicated that normal period of pregnancy leave is
about six weeks. HR Rep. No. 95-948, 5 U. S. Code
Congressional and Administrative News 4749, 4753 (1978). An
employer's no-leave policy therefore poses a drastic effect
on women employees of childbearing age, an impact no male
would ever encounter.
In Abraham v. Graphic Arts International Union (USCA 1)
( 19 8 1 ) , 660 F.2d 811, the employer of a temporary employee
had a policy of granting ten days leave and no more to any
disabled employee. Abraham was hired for a temporary
project, as long as it received funding. She was discharged
for work absence incidental to her impending motherhood. She
had been given no leave of absence for her pregnancy. The
circuit court held t
"An employer can incur a Title VII violation as
much by lack of an adequate leave policy as by
unequal application of a policy that it does have.
Title VII outlaws employment discrimination
traceable to an employee's gender, and it takes
little imagination to see that an omission may in
particular circumstances be as invidious as
positive action. As the Equal Employment
Opportunity Commission had declared:
" ' [Wlhere the termination of an employee who was
temporarily disabled is caused by an employment
policy under which insufficient or no leave is
available, such a termination violates the Act if
it has a disparate impact on employment of one sex
and is not justified by business necessity.'
"Beyond peradventure, the 1imita.tion of leave to
ten da.ys affected women employed in PEP program
much more severely than any male engaged therein,
or elsewhere in the union's hire. It therefore
cannot afford the union refuge unless demonstrably
it was required by the exigencies of the project, a
matter to which we now turn." 660 F.2d at p. 619."
The Abraham case was remanded by the Circuit Court to
the United States District Court for the reason that summary
judgment in favor of the employer was improper. The reasons
given by the circuit court for the remand are cogent in this
case, for the principle remains the same, the employer
provided a leave policy tha.t was inadequate for pregnant
women and gender-based in its impact upon one sex as compared
to the other.
Miller-Wohl's no-leave policy created a disparate effect
on woman who become pregnant compa-red to men who do not
become pregnant. Although the policy was facially neutral,
it nonetheless subjected pregnant women to job termination on
a basis not faced by men. The no-leave policy therefore
appears to us to be gender-based discrimination by a.n
employer in violation of Title VII and the PDA.
v.
The appellants point out that usually an attack on
legislation because of its discriminatory effect is mounted
by a person discriminated against. Here Miller-Wohl as an
employer was not discriminated against. Appellants therefore
claim that Miller-Wohl has no standing to claim that the MMLA
was discriminatory. We conclude however that the impact upon
Killer-Wohl is direct and substantial and it has standing to
raise the validity of the MMTJA as such an employer.
VI .
Sorting out the legal issues in this case is like
walking through a hall of mirrors, so many facets are
presented; or it is like examining a bagful of
inconsistencies, such differing j-nterpretations of the
federal and state statutes are given us.
Miller-Wohl violated MMLA; it claims not to have
violated Title VII, and the PDA, but to have complied with
the letter of those federal laws. Miller-Wohl claims it
cannot obey both sets of laws.
The District Court and Miller-Wohl find that the MMLA is
protectionist legislation favorinq one sex above the other.
Yet the District Court held, and Miller-Wohl contends,
that the MMLA is not gender-based, because MMLA discriminates
in favor of pregnant women over non-pregnant women.
Tsmara, the Comniission, and most amici see no conflict
between the MMLA and Title VII, as amended by PDA; they
contend that the objectives of the state and federal
legislation are the same, to provide for equality for women
on the job market.
The ACLU, NOW, and the League of Women Voter's see in
MMLA the kind of protectionist legisl-ation that historically
hurt rather than helped women, and kept them in marginal
jobs; yet these amici would preserve the MlLA by judicially
extending its benefits to all sexes.
The Commissioner sees no gender-based discrimination in
MP.II,A, pointing to the protection of both sexes by preserving
the right of husbands and wives to procreate and raise a
family without sacrificing the income of the wife to support
the family after pregnamcy.
In the construction of statutes, we are directed by law
to construe their provisions liberally with a view to effect
their objects and to promote justice; when a statute is
equally susceptible to two interpretations, one in favor of
natural right and the other against it, the former is to be
a-dopted. Sections 1-2-103, -104, MCA.
In attacking the Y'iLA, Miller-Wohl contends that the
Montana statutes are in violation of the equal protection
clause of the federal constitution, are discriminatory, and
are preempted a.nd. superseded by and in violation of Titles
VII, and XI, of the Civil Rights Act.
First Miller-Wohl sta-tes that the MMLA favored
nondisabled pregnant employees to the excl.usion of all other
employees. It points to an internal difference found within
the YaLA:
"It shsll be unlzwful for an employer or his agent
to :
" (1) Terminate a womijn's employment because of a
pregnancy;
" (2) Refuse to grant to the employee a reasonable
Leave of absence for such pregnancy;
"(3) Deny to the employee who - disabled, as a
- is
result of pregnancy any compensation to which she
is entitled to the accumulation of disability or
leave benefits accrued pursuant to pla-ns maintained
by her employer, provided that the employer nay
require disability as a result of said pregnancy to
be verified by medical certification that the
employee is not able to perform her empl-oyment
duties;. . ."
Mil-ler-Wohl claims that subsections (1) and (2) of
section 49-2-310, MCA, apply to all employees who are
pregnant, and not to employees who are disabled as a result
of pregnancy, in contrast to subsection (3) which
specj.fically delineates the pregnant employee - - disabled
who is
as a result of such pregnancy. Thus, Miller-Wohl claims that
the provisions of MMLA require an employer to grant maternity
leaves of absence to nondisabled pregnant employees as well
as to pregnant employees and in that manner is
discriminatory, protective, preferential, and in
contradiction of Title VII.
Miller-Wohl further contends that MMLA offends Title VII
of the Civil Rights Act as amended by the Pregnancy
Disability Act, section 701(k) with respect to the foll.owi.ng
language :
". . . and women affected by pregnancy, childbirth,
or related medical cond.itions shall be treated the
same for all employment-related purposes, including
receipt of benefits under fringe benefit programs,
as other persons not so affected but similar i n .
their ability or inability to work, and nothing in
section 703(h) of this Title shall be interpreted
to permit otherwise . . ."
Miller-Wohl contends that the federal law requires equal
employment policy only when the pregnant employee is disabled
and therefore the state law is in conflict with the federal
law.
We reject Miller-Wohlls arguments on these points.
Mil-ler-Wohl is arguing on a statement of facts that are not
before this Court, and were not before the District Court nor
the Commission. We are not considering in this case a
nondisabl-ed pregnant employee. Tamara Buley was disabled by
virtue of her pregnancy, and eventually was discharged for
that disability.
Disability as a result of pregnancy is not the sine qua
- for the a-pplicationof PDA; it requires no more than the
non
"medical condition" of pregnancy. The PDA states:
''The terms 'because of sex' or 'on the basis of
sex' include, but are not limited to because of or
on the basis of pregnancy, childbirth or related
medical conditions . . .
" 42 U.S.C. 2000elk).
F e agree with Judge Paul G. Hatfiel-d, who determined
J
this argument with clarity:
"First, under the Equal Protectjon Clause, as
contrasted with the statutory Pregnancy
Discrimination Act discussed infra, men and women
are not treated unequally when pregnancy is the one
physical. condition given preferential treatment.
Rather, by removing pregnancy-related disabilities
as a legal grounds for discharge from employment,
the MMLA places men and women on more equal terms.
All workers, male or female, disabled for any
reason other than pregnancy are still treated
identically. Whether the disability or sickness is
one that members of either sex could suffer, such
as a broken leg, or hepatitis--or is one that
members of only one sex could suffer--such as a
ovarian cyst or prostatitis--the MMLA still permits
plaintiff to treat workers under its leave policy
with equal severity. The MMLA merely makes it
illegal for an employer such as plaintiff
[Miller-Wohll . .. to burden female employees in
such a way as to deprive them of employment
opportunities because of their different role.'
National Gas Company v. Satty, 434 U.S. 142, 98
S.Ct. 347, 351, 54 L.Ed.2d 356 (1977) ."
Miller-Wohl v. Commissioner of Labor and Industry,
etc., (1981), 515 F.Supp. 1264, 1266.
In 27 A.L.R. Fed. 537, 554, S 3[bl are annotations of
cases before the Equal Employment Opportunity Commissjon
relating to employers ' policies of granti ng maternity leave
only to em.ployees who have bean employed for a particular
length of time. The EEOC finds such a policy to be
discriminatory under Title VII. The reasons given include
the fact that such maternity leave policies have a
foreseeable adverse effect on the terms and coilditions of
female employment, without an equivalent effect upon
simil.arly placed males. In the absence of a legitimate
business necessity reason for such a policy, the EEOC takes
official notice of the fact that pregnancy, being a natural,
expectable, and societally necessary condition, is certain to
occur in a statistically predictable number of females in the
labor force. Thus, an employment policy of not providing any
leaves of absence, although neutral. on its face, has an
exclusive impact upon female workers in violation of Title
VII.
Again, the holding in Abraham v. Graphic Arts
International Union, supra, supports our conclusion with
respect to the effect of Title VII, where inadequate leave is
provided. The United States Supreme Court case of Newport
News Shipbuilding And Dry Dock Company - -
v. EEOC, supra, which
finds tha.t Tit1.e VII mandates equal treatment between male
and fema1.e employees is in our opinion consonant with what we
state here respecting Title VII and the implications of the
MIGA respecting Title VII.
For the same reasons, we find that the MMLA is not
preempted by either Title VII or the PDA. JL
WA is consistent
with the federal acts, and they permit state action in the
same field. Section 42 U.S.C. 2000h-4; 2000e-7, supra.
VII.
As we noted above, a brief submitted by one set of amici
suggested that the MMLA is invalid as being protectionist and
paternalistic, but that its invalidity could be saved if this
Court would extenc? the benefits of the mI,A on a
gender-neutral basis to all workers.
Although we have found that the MMLA is not violative of
federal law, there are, nevertheless, good reasons existing
why the Court or legislature should consider extension of the
same benefits.
In Welsh v. United States (1970), 398 U.S. 333, 361,
370, 90 S.Ct. 1792, 1810, 26 L.Ed.2d 308, (Harlan, J.,
concurring), Justice Harlan suggested a test for determining
whether extension or invalidation was appropriate:
"lilt is . . . necessary to measure the intensity
of commitment to the residual policy and consider
the degree of potential. disruption of the statutory
scheme that would occur by extension as opposed to
abrogation." 398 U.S. at 365.
Extension of the reasonable leaves afforded by the MMLA
to all workers would indeed further the Staters general
interest in promoting the health and welfare of all its
citizens and the legislature's concern for sexual equality
and stable and workable family relationships. It would
establish the goal of sexual equality in the work place
contemplated by the MMLA a.nd eliminate hostility and
resentment toward pregnant workers from those who are denied
reasonable disability leaves.
A policy which provided for disability leave without pay
for all employees would cause the employer no financial
disruption and little administrative expense.
More important to this case, hcwever, extension of such
W4LA benefits to all workers would end any argument that the
MMLA is indeed sex based d.iscrj.minationin violation of Title
VII. In Hays v. Potlatch Forests (U.S.C.A. 8 19721, 465 F.2d
1-081, the Court of Appeals sust-ained a District Court which
had before it an employer-challenge to an Arkansas law
requiring overtime pay for women but not for men. The Court
of Appeals approved the District Court's order to eliminate
fiiscrimination by requiring that the male employees be paid
an equal amount for overtime as required for women, finding
thereby no frustration or impedance of the purposes of Title
vll. The same rationale applies here.
The legislature will be meeting shortly after the time
of this decision. It can take up the question of extending
such benefits, in order to save the purposes of the MMLA free
from any douht. We defer extension to the consideration of
the legislature. We heartily recommend consideration of such
language by the legislature.
VIII.
In accordance herewith, the judgment of the District
Court declaring MMLA invalid is hereby reversed; the order of
the Commission awarding back pay and penalties to Tamara
Buley is reinstated; this cause is remanded to the District
Court for such further proceedings as may be necessary in
accordance with this opinion, and with directions to remand
to the Commission. %\
We Concur:
3L&A$. -jikLb,&
Chief Justice