On Petition for Rehearing.
Appellants petition for a rehearing and suggest a rehearing in banc. Their principal reliance is upon the decision of the Supreme Court in General Electric Co. v. Gilbert, 1976, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, which was decided on December 7, 1976, just two weeks after our decision was filed on November 23, 1976. We conclude that the General Electric case does not require a change in our judgment, for several reasons.
First, in that case, as in Geduldig v. Aiello, 1974, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256, upon which the Court primarily relied, the facts were different from the facts in the case at bar. In each of those cases, a program of disability insurance was involved, and in each pregnancy was excluded as a disability. The Court held that the exclusion was not a discrimination based upon gender as such. It pointed out that the exclusion of pregnancy as a disability “divides potential recipients [of benefits] into two groups — pregnant women and non-pregnant persons. While the first group is exclusively female, the second includes members of both sexes.” General Electric, supra, 429 U.S. at 135, 97 S.Ct. at 407, quoting from Geduldig, supra, 417 U.S. at 496-97, n. 20, 94 S.Ct. 2485. Thus, said the Court, the exclusion of pregnancy “was not in itself discrimination based on sex,” 429 U.S. 125, at 135, 97 S.Ct. 401, at 407.
The same cannot be said of the pension plan of the Department in the case at bar. *593A greater amount is deducted from the wages of every woman employee than from the wages of every man employee whose rate of pay is the same. How can it possibly be said that this discrimination is not based on sex? It is based upon a presumed characteristic of women as a whole, longevity, and it disregards every other factor that is known to affect longevity. The higher contribution is required specifically and only from women as distinguished from men. To say that the difference is not based on sex is to play with words.
In addition, as the Court pointed out in General Electric, under the disability programs in that case and in Geduldig, “The ‘package’ going to relevant identifiable groups . . . — male and female employees — covers exactly the same categories of risk, and is facially nondiscriminatory in the sense that ‘[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.’ Geduldig, 417 U.S. at 496-97, 94 S.Ct. at 2492” General Electric, 429 U.S. 125, p. 138, 97 S.Ct. 401, p. 409. “[G]ender-based discrimination does not result simply because an employer’s disability benefits plan is less than all inclusive.” Id. at 138, 97 S.Ct. at 409 (footnote omitted).
The pension plan in the case at bar is different. The monthly benefit is the same for men and for women, but the cost to women is higher than the cost to men, and this is solely because they are women. Thus the plan is facially discriminatory because, while the plan is all inclusive as to retirement benefits, it is discriminatory, on the basis of sex alone, as to costs to the employees.
Finally the Court’s opinion in General Electric requires that we reconsider our analysis of the legislative history of the Bennett Amendment (see part II. B. of our opinion). However, upon that reconsideration, we conclude that a different result is not required in this case. Appellants stress the Court’s reliance, in General Electric, upon the colloquy between Senators Humphrey and Randolph, discussed in General Electric at 429 U.S. 125, at 144, 97 S.Ct. 401 at 412, and in our opinion at 589-590. We did not find it to be persuasive legislative history; the Supreme Court did find it persuasive. We are, of course, bound by that conclusion, but we do not think that it follows that the judgment in this case is erroneous.
In General Electric, the Court relied also, and, we think, more heavily, on rulings of the Wage and Hour Administrator construing the Equal Pay Act, and on the fact that EEOC rulings were inconsistent with each other as well as with the rulings of the Administrator (429 U.S. 125, at 142-145, 97 S.Ct. 401 at 411-412). In our case, there are no such inconsistencies.
In his brief as amicus curiae in this case, the Secretary of Labor points out that he (or the Administrator acting for him) “has never approved a practice of requiring women employees to make contributions to a pension plan which are larger than those required of similarly situated men employees.” (Brief at 6) The rulings of the Secretary on which the Department relies do not deal with a requirement that female employees must make greater contributions to the plan than male employees, a requirement which diminishes the current available or “take home” wages of women, as compared to those of men.
In his June 18,1964 opinion letter (BNA’s WHM 95:607), the Administrator disapproved of a wage differential between men and women based upon alleged higher costs of employing women, a part of those costs being for pensions. In an Interpretive Bulletin issued February 11, 1966 (3 F.R. 2657, 29 C.F.R. § 800.151), the Administrator said:
A wage differential based on claimed differences between the average cost of employing the employer’s women workers as a group and the average cost of employing the men workers as a group does not qualify as a differential based on any “factor other than sex,” and would result in a violation of the equal pay provisions, if the equal pay standard otherwise applies. To group employees solely on the *594basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential — an assumption plainly contrary to the terms and purposes of the Equal Pay Act. Wage differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed, because in any grouping by sex of the employees to which the cost data relates, the group cost experience is necessarily assessed against an individual of one sex without regard to whether it costs an employer more or less to employ such individual than a particular individual of the opposite sex under similar working conditions in jobs requiring equal skill, effort, and responsibility.
There are no rulings of the Secretary or Administrator inconsistent with this. The one which the Department cites, issued September 9, 1965, and amended May 6, 1966, 30 F.R. 11504 and 31 F.R. 6770, 29 C.F.R. § 800.116(d) deals with employer contributions, not compulsory employee contributions which are here involved, and which, under 29 C.F.R. § 800.151 cannot be unequal.
No ruling of EEOC conflicts with 29 C.F.R. § 800.151. Nor has EEOC taken inconsistent positions in relation to the problem before us. Its position is stated in 29 C.F.R. § 1604.9, issued April 5, 1972, 37 F.R. 6836, and in EEOC Dec. #75-146 of Jan. 13, 1975, 2 CCH Employment Practices 4190, ¶ 6447, both discussed in our opinion. We know of no prior inconsistent rulings. Thus this case is quite unlike General Electric, where there was conflict between EEOC rulings and between rulings of EEOC and those of the Secretary of Labor. Here, the administrative rulings, as they relate to the problem before us, are consistent and support the result that we have reached.
The petition for a rehearing is denied. The suggestion of a rehearing in banc has been transmitted to all judges of the court, and no judge has requested a vote on the suggestion. Rule 35(b) F.R.App.P. The suggestion of a rehearing in banc is rejected.