dissenting:
The three challenged Pan American Employment Policies apply only to women. They prevent women who are pregnant from working as flight attendants both months before any increase in weight or girth would interfere with performance of their duties and months after childbirth. For the entire period of this mandatory leave, the women do not accumulate seniority and hence must return to work in a much less favorable position than employees who may have taken leave for other medical reasons.
Pregnancy is the only physical condition which prompts such restrictions. Persons with any other physical condition which might interfere with performance of duties are permitted to fly if, upon a visual inspection prior to takeoff, they do not appear to be incapacitated. The employee making the visual inspection has no medical training. Pan American does not even require an annual physical examination of its flight attendants.
Why is pregnancy alone treated so differently from all other physical conditions? This is a question which Pan American has not answered and the majority opinion does not address. The majority correctly concludes that the policies are all prima facie violations of Title VII, but goes on to hold in effect that there is some basis in the record to justify the policies. I cannot agree.
I. STOP POLICY
The first policy is the so called “mandatory stop” policy. This rule requires a flight attendant to stop working as soon as she learns she is pregnant, which is generally before the end of the first trimester of pregnancy. The district court actually found, however, that most women during the early months of pregnancy are able to perform all of the ordinary duties required of a flight attendant. Harriss v. Pan American World Airways, Inc., 437 F.Supp. *680413, 422 (N.D.Cal.1977). The Fourth Circuit has recently held that Eastern Air Lines’ imposition of a similar mandatory stop rule during the first trimester violated Title VII. Burwell v. Eastern Air Lines, 633 F.2d 361 (4th Cir. 1980) (en banc).
The justification offered by Pan American, accepted by both the district court and the majority opinion, is that the rule is necessary for safety. The argument is that since a pregnant woman runs a small risk of miscarriage during flight, and since some pregnant women suffer from nausea and fatigue, a pregnant flight attendant might become disabled during an emergency. If that happened, the safety of the passengers could be endangered. Pan American concludes that passengers are safer if pregnant flight attendants are not permitted to work.
The flaw in Pan American’s logic is the assumption that all the flight attendants who are permitted to fly in the place of grounded, pregnant stewardesses are physically better able to perform their duties than pregnant stewardesses. Since the airline makes no attempt to prevent flight attendants with other potentially disabling conditions from flying, that is an assumption which is certainly not borne out in this record. If, for example, persons suffering from ulcers, hernias, colitis, high blood pressure or heart disease are less likejy to become incapacitated during flight than women in the early months of pregnancy, there is nothing in this record to prove it.
The leading employment discrimination cases have recognized that to justify a discriminatory policy as either a bona fide occupational qualification or a business necessity, the employer must at least show both a valid purpose and that the policy achieves that purpose: i. e. that there is a factual basis to believe all or substantially all unable to do the job are within the class discriminated against. See Blake v. City of Los Angeles, 595 F.2d 1367, 1376 (9th Cir. 1979), cert. denied, 446 U.S. 928, 100 S.Ct. 1865, 64 L.Ed.2d 281 (1980); Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977); Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969). Here safety is the claimed purpose, but the policy in question has not been shown to serve it. As one district court has stated in a similar case, “the incantation of a safety rationale is not an abracadabra to which this court must defer judgment.” Maclennan v. American Airlines, Inc., 440 F.Supp. 466, 472 (E.D.Va.1977).
If Pan American desires its claimed safety precautions to withstand attack, it should design procedures, reviews, and tests which measure the ability of all flight attendants who have medical conditions which might affect their performance in an emergency situation. Pan American would then be measuring the person for the job and not the person in the abstract. See Dothard v. Rawlinson, 433 U.S. 321, 331-32, 97 S.Ct. 2720, 2728, 53 L.Ed.2d 786 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971). This requirement of equal treatment of all persons who are similar in their ability or inability to work is specifically mandated by the 1978 pregnancy amendment to the Civil Rights Act, 42 U.S.C. § 2000e(k), and supported by the EEOC guidelines.1
II. START POLICY
The second Pan American pregnancy policy is the so called “mandatory start” policy *681which does not permit stewardesses, regardless of their individual condition, to return to work for a minimum period of 60 days following childbirth. Here the employer has not even articulated a justification for the policy in terms of its own business requirements. It is thus not possible to determine whether the policy is either sufficiently compelling or reasonably necessary. Diaz v. Pan American, 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). See also Usery v. Tamiami Trail Tours, Inc., 531 F.2d 224 (5th Cir. 1976). The record is devoid of any factual basis for finding that women are unable to perform their duties until 60 days after childbirth. Nor has the employer shown why it does not make individual determinations concerning a woman’s ability to return to work before 60 days. The failure to make such a showing should in and of itself invalidate this discriminatory practice.2 Blake v. City of Los Angeles, supra (employer must show that there are no acceptable alternative policies); Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 1969).3
The only evidence in the record on the 60-day rule is, as the majority acknowledges, testimony about when a post-partum examination should occur. There is no evidence that all women must wait until after the post-partum examination to return to work. Moreover, what little evidence there is pits the testimony of one doctor, that the examination should take place at four weeks (28 days), against that of another doctor that it should be at least six weeks (42 days). There is thus no support for a finding that the post-partum examination should be postponed 60 days, much less a finding that all women should wait at least 60 days until after childbirth to return to work. Yet the majority inexplicably returns the matter in order to permit the trial court to make further findings, apparently to justify the wholly unjustifiable 60 days.
III. SENIORITY POLICY
The third pregnancy policy prevents flight attendants during the mandatory maternity leave from accruing seniority after 90 days, even though persons on all other medical or disability leaves are permitted seniority accrual up to three years. The Fourth Circuit in Burwell ruled unanimously that a seniority policy which treats pregnant flight attendants less favorably than flight attendants with other medical disabilities is unlawful. Burwell v. Eastern Air Lines, Inc., 633 F.2d 361 (4th Cir. 1980) (en banc). See also Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977). The majority recognizes that the trial court should have held that this policy was prima facie discriminatory. What the majority fails to recognize is that the employer did not even attempt to justify the rule as a business necessity. Yet, again the matter is remanded for findings on a record which permits only one conclusion: the invalidity of the rule.
Burwell and Satty were decided under the law prior to the 1978 pregnancy amendment to the Civil Rights Act. The Act now expressly requires women affected by pregnancy, childbirth or other related medical conditions to be treated “the same for all *682employment-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 . ..42 U.S.C. § 2000e(k). Pan American has conceded that it may not enforce this policy under the new law. It has notified the Court that, as of October 31, 1978, it began allowing flight attendants to accrue full seniority during the entire period of their leaves. The majority ignores the clear language of the statute and the legal result which should flow from it. Instead, the majority remands the question to the district court when, in fact on this subject, there is nothing further for the district court to do.
I would therefore reverse and require the district court to issue an injunction against further enforcement of the policies and to consider appropriate damages.
ORDER
The petition for rehearing filed by Pan American World Airways, Inc., is denied. On remand, the district court should consider Pan Am’s contention that on October 31, 1978, it modified its seniority policy to allow accrual of seniority during a flight attendant’s maternity leave.
. -The EEOC has published its position on the effect of the pregnancy amendment to the Civil Rights Act in a question and answer format. As to the equal treatment requirement, the guidelines state:
Question 6. What procedures may an employer use to determine whether to place on leave as unable to work a pregnant employee who claims she is able to work or deny leave to a pregnant employee who claims that she is disabled from work?
Answer: An employer may not single out pregnancy-related conditions for special procedures for determining an employee’s ability to work. However, an employer may use any procedure used to determine the ability of all employees to work.... [I]f an employer allows its employees to obtain doc*681tor’s statements from their personal physicians for absences due to other disabilities or return dates from other disabilities, it must accept doctor’s statements from personal physicians for absences and return dates connected with pregnancy-related disabilities.
29 C.F.R. § 1604-Appendix (1979).
. As to both Pan American’s minimum 60-day return requirement and seniority policy, the EEOC position would be as follows:
Question 7. Can an employer have a rule which prohibits an employee from returning to work for a predetermined length of time after childbirth?
Answer: No.
Question 10. May an employer’s policy concerning the accrual and crediting of seniority during absences for medical conditions be different for employees affected by pregnancy-related conditions than for other employees?
Answer: No. An employer’s seniority policy must be the same for employees absent for pregnancy-related reasons as for those absent for other medical reasons.
29 C.F.R. § 1604-Appendix (1979).
. Indeed, the record actually shows that both plaintiffs’ and Pan American’s experts agree that the decision to return to work is a highly individual medical judgment.