concurring in part and dissenting in part.
The district court applied an erroneous burden of proof to plaintiff’s Title VII complaint and, accordingly, the district court’s judgment should be reversed and the case remanded for retrial.*
Plaintiff had alleged, inter alia, that her former employer, Wickes Corporation, impermissibly failed to restore her to her prior position when she returned from a maternity leave and that another position which she subsequently held was abolished and her employment terminated because she was an unwed mother. Plaintiff contends that these were illegal employment practices under Title VII. After assessing the evidence presented at trial to support her discrimination claim, the district court stated:
Wickes was not required to return Gray-son to the position she occupied before she left on maternity leave, provided such refusal is not grounded on her sex. Grayson did not prove by a preponderance of the evidence that Wickes discriminated against her because of her sex in violation of Title VII. She failed to show *1198she was treated any differently than similarly situated male employees had been or would have been treated. She failed to prove that unmarried male employees who engaged in sexual relations and produced illegitimate offspring would have been treated differently by Wickes.
Grayson v. Wickes Corp., 450 F.Supp. 1112, 1119 (N.D.Ill.1978) (emphasis added). This is an absurd, hypothetical burden of proof which would be impossible for a female plaintiff to meet. It is totally unrealistic to think that evidence about an employer’s treatment of unwed males who had fathered a child would be available to a Title VII plaintiff.
The Sixth Circuit, in affirming a district court finding that a plaintiff had been discriminated against on the basis of sex, rejected the defendant-employer’s contention that a standard like the one applied in this case be applied to a female plaintiff’s Title VII claim. The Sixth Circuit stated:
[The defendant-employer] argues that “[plaintiff] has never shown that had she been a male expectant parent, she would have been treated any differently by the [defendant].” The sophistry of this argument is that it equates pregnancy with the condition of “expectant parent” in a male. Pregnancy is a condition unique to women, so that termination of employment because of pregnancy has a disparate and invidious impact upon the female gender. The point of the argument is that there must be men and women similarly situated who are treated in a disparate manner. The point is not well taken, for it would effectively exclude pregnancy from protection in all Title VII cases. The Supreme Court has stated that maternity leave rules directly affect “one of the basic civil rights of man.” Cleveland Board of Education v. LaFleur, 414 U.S. 632, 640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52, 60 (1974). To exclude such a basic civil right from protection against invidious employment termination would be contrary to the policy to which Title VII is directed, namely: that race, religion, nationality, and sex are irrelevant factors in employment opportunity. Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158, 167 (1971); Holthaus v. Compton & Sons, Inc., 514 F.2d 651 (CA 8 1975).
Jacobs v. Martin Sweets Co., 550 F.2d 364, 370 (6th Cir. 1977) (footnotes omitted). I think that this passage succinctly explains the unreasonableness of the burden of proof applied by the district court in the instant case.
The majority opinion observes, after quoting the district court’s articulation of the objectionable proof standard, that “[i]t appears to us, however, that the trial court was merely noting that Grayson had not proved one of several possible facts that would have supported her Title VII claim.” Supra, at 1197. After noting several other rationales offered by the district court for its decision, the majority concluded, “[w]e are thus unpersuaded that the district court used an improper standard in adjudicating the appellant’s Title VII claim.” Supra, at 1197.
The language used by the district court in its memorandum opinion does not suggest the inference that plaintiff’s failure “to prove that unmarried male employees who engaged in sexual relations and produced illegitimate offspring would have been treated differently by Wickes,” Grayson, supra, 450 F.Supp. at 1119, merely was one of “several possible facts,” unproven by plaintiff, which “would have supported her Title VII claim.” Supra, at 1197. Further, the district court’s articulation of this burden of proof was not isolated to the passage reproduced by the majority. Earlier in his memorandum opinion the district court stated, “[Plaintiff] did not adduce evidence to show that unmarried male employees who engaged in sexual relations and produced illegitimate offspring would have been treated differently by Wickes than she was.” Grayson, supra, 450 F.Supp. at 1117. The memorandum opinion suggests that this unsupportable standard of proof was a fundamental component of the district court’s deliberative process.
*1199We should not countenance the application of such an ill-founded burden of proof standard as a matter of law. And its application to plaintiff’s claim in this case, even if the district court did consider it in conjunction with other legitimate factors of assessing Title VII claims, warrants reversal of the district court’s judgment. This was a close case and rather than speculate on how significant this erroneous standard was to the district court’s decision, we should remand for a new trial.
I concur in the majority’s resolution of all the other issues raised by the plaintiff-appellant.