(dissenting):
I respectfully dissent from the majority opinion that the exclusion of pregnancy related disability from the application of an employee disability benefits program is prohibited by Title VII, 42 U.S.C. § 2000e et seq.
I think such a holding is precluded by the decision of the Supreme Court in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974). Although that case involved an action brought under the equal protection clause of the Fourteenth Amendment and not Title VII, the decision should control here.
42 U.S.C. § 2000e-2 provides in part that it shall be an unlawful employment practice for an employer to discriminate against an individual because of the individual’s sex. The inquiry in this case must therefore focus initially on whether the exclusion of pregnancy related disability from the disability benefits plan is sex discrimination. If it is not sex discrimination, then, regardless of what test is applied, there is no Title VII violation.
The court, in Geduldig, held that the exclusion of pregnancy from a state disability insurance plan for employees of private employers was not a classification that would support a finding of sex discrimination, since it was not shown that distinctions involving pregnancy were mere pretexts designed to effect an invidious discrimination against one sex. 417 U.S. at 496-97, n. 20, 94 S.Ct. 2485. Such a showing was not made here.
The Court said of the California insurance plan, “There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program. There 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. In a footnote, 417 U.S. at 496, n. 20, 94 S.Ct. at 2492 in reply to the dissenting opinion, the Court explained that the pregnancy exclusion is a “far cry from cases like Reed . and Frontiero . . . involving discrimination based upon gender as such,” and most importantly continued: “The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition — pregnancy — from the list of compensable disabilities.” 417 U.S., n. 20, p. 496, 94 S.Ct. p. 2492. And later in the same footnote appears the flat statement which should control our case: “The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis.” 417 U.S., n. 20, p. 497, 94 S.Ct. p. 2492.
Absent a showing of sex discrimination, Title VII, even if its reach were broader than the equal protection clause, would not render unlawful a pregnancy exclusion such as that involved here. Since the Supreme Court has held, for precisely the same exclusion, there is a “lack of identity between the excluded disability and gender as such,” the exclusion should no more support a finding of *669discrimination under Title VII than under the equal protection clause. And since, as the Court says, the exclusion is “merely” the removal of “one physical condition — pregnancy — from the list of compensable disabilities,” no reason appears why a collective bargaining agreement may not lawfully do by contract what a state may do by legislation.
But, in this circuit, the reach of Title VII is not broader than that of the Fourteenth Amendment. We have held that “the test of validity under Title VII is not different from the test of validity under the fourteenth amendment.” United States v. Chesterfield County School Dist., S. C., 484 F.2d 70, 73 (4th Cir. 1973).1 Unless this court intends to alter its position as just above stated, it is required to reverse the decision below because of the decision of the Supreme Court in Geduldig. If the test is “not different,” there can be no justification for the finding of discrimination here.
Additional reasons for my disagreement are the illogical results bound to follow. For example: a state’s disability benefit plan for its own employees covered by Title VII, 42 U.S.C. § 2000e(b), would, under our holding, not be allowed to exclude pregnancy from its coverage. However, such an exclusion could be made freely in a state plan for employees of private employers such as that in Geduldig. I fail to see the justification for the inconsistency.
I grant the majority opinion is most persuasively written. Nevertheless, after many readings, I am left with the impression that, read as a whole, it very nearly follows the rationale of the dissenting justices in Geduldig which has been rejected by a majority of the court as emphasized in footnote 20 above referred to.
In sum, I am of opinion Geduldig was written with an eye to Title VII cases certain to come, not in a vacuum and not with self imposed blinders, and came to the only result logically possible when we consider that the Court must be the even handed arbiter in all cases, not only those involving equal protection. I even assume that the result in Geduldig may not be as socially desirable as the minority there argues for, and the majority here obtains. But social desirability is not the aim. The aim is to construe the statute in view of applicable precedent and legislative purpose. And Title VII seeks to equalize opportunity, not create an advantage for either men or women. If Congress wishes to legislate in favor of pregnant women, I see no constitutional impediment,2 legislatures have made less rational classifications for centuries. But, I submit, Congress did not so undertake in Title VII.
. Indeed, the very opinion of the district court affirmed here indiscriminately cites equal protection and Title VII cases in support of its position. That the rule in this circuit as recited from the Chesterñeld County case is a widespread practice is pointed out in a comment in 75 Col.Law Review, 441, 464, 467 (1975).
. See Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975), and Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974).