concurring in part and dissenting in part:
With respect to the special provision causing a pregnant employee to lose seniority accrued as a flight attendant in the event of transfer to a position not directly related to flight attendant work, I am in complete agreement with the majority. Sickness and injury are exceptions but pregnancy is not. I fail to perceive any justifiable reason for according pregnant employees, necessarily all female, less favorable seniority treatment than that accorded any other employee who is obliged for reasons of physical condition temporarily to cease flight service. Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977).
However, I do not agree entirely with the disposition which the majority has decided is appropriate with respect to a rule which Eastern Airlines, Inc. had adopted requiring that, immediately upon pregnancy, an employee without exception became ineligible for flight service and, absent a transfer to other employment, had to enter unpaid maternity leave status until after termination of the pregnancy by birth of a child or otherwise and the return of the employee following recovery from any attendant incapacity. The district court did acknowledge a limited validity for the rule but restricted its application to the third trimester (i. e., after the twenty-eighth week). The majority would permit enforcement of the rule during the second and third trimesters, but not the first (i. e., not during the first thirteen weeks). I respectfully submit that reasons indicating a substantial growth in the safety risks, even in the first thirteen weeks, suffice to allow enforcement of the rule as promulgated by Eastern.
Title VII has generated enough litigation that cases under it have achieved a language, if not altogether a life, of their own. Predominantly concerned with race and sex, they first command an inquiry into whether there has been, at least prima facie, discrimination. Apart from blatant examples, which would require little in the way of a special lexicography, the cases have generally spoken in terms of disparate treatment and disparate impact as conditions which, when established, demonstrate the existence prima facie of discrimination.
The cases, for these initial purposes, break down into at least two very distinct categories, one of which has little or no pertinence to our present inquiry. In all the cases where discrimination is asserted, there is a palpable difference between the favored and the disfavored individuals or groups of employees or prospective employees. Without one, indeed, it would be difficult if not impossible to identify race or sex, standing alone, even as a possible, let alone a probable cause for difference in treatment to the disadvantage of the minority group member or the woman. A black is *378distinguishable from a white, a man from a woman, through simple observation.
The heart of anti-discrimination can be summed up by the observation that while there is a difference it does not, and, but for exceptional circumstances, may not make a difference. The mere fact of skin hue, or physical configuration, is essentially irrelevant to how well a job can be performed and so normally may not be taken into account. Employers have on occasion, where the differentiations on grounds of color or of sex admittedly do not, of themselves, allow different treatment, shifted ground to something less immutable than skin color or other permanent physical differentiating characteristics and introduced standardized testing, avowing that the purpose is solely to secure better qualified employees, regardless of race or sex. The test may suffice to provide an acceptable basis for hiring practices, although statistically a minority or women do less well on the tests, if the tests are “job-related”; if they bear a “manifest relationship to the employment in question.” New York City Transit Authority v. Beazer, 440 U.S. 568, 587 & n.31, 99 S.Ct. 1355, 1366 & n.31, 59 L.Ed.2d 587 (1979); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).
Those are cases,1 however, involving a total ban on the differentiating and immutable race and sex characteristics to justify less favored treatment to a minority or female individual or group, since they bore, in the posture of the cases as they arose, in no way on qualifications to perform the work. Instead, attempted justifications for treating the plaintiff or plaintiffs less well related only to supposed acculturation aspects of the job applicant which were not unchangeable and which could be improved to his or her benefit. Our present case is very different in that an immutable differentiating characteristic is the aspect of things on which difference in treatment is based, and is a condition which cannot be altered to the individual’s benefit with the passage of time. On the contrary, as time goes on, pregnancy can only continue to increase the reasonableness of the differentiating treatment based on sex itself, until, by the third trimester, at the latest, all participants in the controversy agree that it is proper to treat pregnant women differently than men (and non-pregnant female flight attendants).2
Hence, to solve the questions presently before us, we should direct our attention to other cases, in which the physical idiosyn-cracies associated with a particular race or a particular sex are the very basis for the differentiating treatment.
Our first question, of course, is whether the sex or racial identifying characteristic can ever, in and of itself, be a justifiable, non-discriminatory grounds for according non-identity of treatment. The two cases in which the Supreme Court has addressed the question both have answered in the affirmative. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977).3
In Gilbert, the employer had a sick leave pay arrangement extending to virtually all kinds of sickness. On the grounds it was not an illness, General Electric did not pay employees who had to go on leave because of pregnancy. In determining whether it constituted discrimination not to pay its *379pregnant female employees the sick leave allowance, the Supreme Court was faced with a quandary of some dimensions. The women could and did argue that, because of the exclusion, men got the benefit in all cases, whereas the women got the benefit for only some, not all of the cases. Yet, if the employer had chosen to pay the benefits to women disabled by pregnancy, the men could have contended with equal logical force, that both categories got only the benefits for heart, liver and other ailments to which both sexes were subject, but women alone also got, while men did not, important and substantial economic benefits associated with pregnancy, and so associated with women only.4
The fact was that there was no way to treat the two categories identically. Up to now, and presumably forever, men cannot become pregnant. So different treatment will inevitably result either way. It is hardly surprising that, faced with a “damned if you do and damned if you don’t” situation, the Court concluded that, since the amount paid in women’s benefits equalled or exceeded the benefits paid for men, even without including pregnancy as an event giving rise to eligibility for payment, there was no discrimination.
Likewise, in Satty, the Court determined that a denial of benefits to women for pregnancy was facially neutral, so did not create a prima facie case of discrimination.5 Nevertheless, as the Court was careful to point out, if the employees could meet the additional burden of proving pretext, i. e., that the employer really intended to discriminate, and only used the facial neutrality as an excuse, a right to relief would be made out.
So, as in Gilbert and in Satty, we must first determine whether pregnancy makes a difference justifying different treatment in the circumstances of the present case or whether pregnancy is only a difference without making one.
Here we must, except to the extent of the consequences of a conclusion that prima facie discrimination was not made out, take our leave of Gilbert and Satty, for the factual materials from this point on have so little similarity as to be of no real assistance in determining whether the facts of the instant case do or do not make out prima facie discrimination. Dealing, as Gilbert and Satty did, with whether leave associated with pregnancy must be compensable to avoid a charge of discrimination is quite different from deciding whether a requirement that a flight attendant immediately stop flying and take leave without pay until termination of and recovery from any after effects of the pregnancy is discriminatory-
In the first place, there is the added factor of involvement of others than merely the employer and the employee, who alone were concerned in Gilbert and Satty. Outside third parties, namely the passengers,6 have an interest which cannot be ignored.
Second, pregnancy in Gilbert and Satty was not fragmented into trimesters. No doubt the impact on the issues there before the Court was greatest in the third trimester. Nevertheless, the relevance of the decisions as to whether or not there was discrimination on a prima facie basis in the present case is remote. The relevant test is a different one, as to which an answer must be found without the assistance of decisive or even strongly indicative precedent from the Supreme Court. It is simply whether *380. . the duty resting upon air carriers to perform their services with the highest possible degree of safety in the public interest . . .”7 combined with the generally accepted medical evidence spells out a situation in which danger in flight service is significantly enlarged unless disqualification occurs immediately upon the first knowledge of pregnancy. If not, discrimination has been made out. If, on the other hand, a manifest increase in safety risk is demonstrated discrimination is convincingly rebutted. A secondary question arises, if the manifest increase in safety risk is demonstrated, whether the plaintiffs never succeeded in finally establishing pri-ma facie discrimination as part of the plaintiffs’ case, or whether, although prima facie discrimination was made out, nevertheless, as an affirmative defense, a showing of business necessity or bona fide occupational qualification by the defendant overcame the prima facie case.
The nature of airplane accidents is such that they are, fortunately, extremely infrequent for the scheduled airlines and, on the other side of the coin, usually so devastating when they do occur that death of everyone is so inevitable and virtually immediate that the physical condition of the flight attendant is not going to matter one way or the other. Nevertheless, there are intermediate situations on which quick and alert reaction by flight attendants • in circumstances of great danger and tension may make all the difference. The medical evidence supports a conclusion that a pregnant flight attendant may be somewhat less able to respond in a complete and efficacious manner. The testimony unequivocally establishes that, although, if healthy, a flight attendant during the first thirteen weeks could perform as effectively as though she were not pregnant, a substantial disability could occur in the event of a miscarriage. Miscarriage is defined as the termination of pregnancy before the twentieth week. Miscarriage is an illness confined to pregnancy, and its occurrence in the first thirteen weeks is frequent enough 8 that the airline here was justified in giving the attention it gave to the increased risk, and in removing pregnant flight attendants from service immediately on learning of the pregnancy.
The airline charged with the safety of its passengers and crew should be entitled to take the change in the risk factor into account by doing what it reasonably can to preclude any palpable growth in the risk. It should be enough in the way of justification to point to a humanitarian responsibility. However, were it not, there remains the increase in the possibility of huge claims for injury and death occurring because a pregnant flight attendant, even during the first thirteen weeks, was serving the passengers and was handicapped or incapacitated in a crucial manner at a crucial time.
Having so determined, we have, just as the Supreme Court in General Electric Co. v. Gilbert had, a situation where, the facts having been considered, an exclusion based on pregnancy was “not a gender-based discrimination at all.” Id. 429 U.S. at 136, 97 S.Ct. at 408.9 In sum and substance, the gender variation, while it only is a difference prior to pregnancy, made a difference once pregnancy had occurred and the disqualification from flying proceeded, not from sex, but from disability.
That, of course, does not end the matter, for the possibility of pretext still remains. While Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), has held that the denial of sick pay for pregnancy, although facially neutral, may *381nevertheless be found discriminatory upon proof of pretext on the part of the employer, it is by no means clear that Satty, concerned only with the interests of employer and employee, would extend to a situation involving responsibility to third parties such as other flight crewmembers and passengers. Assuming that it does, nevertheless, the posture of this case effectively repudiates the existence of pretext. This is so because 90% of Eastern’s flight attendants are female, reflecting a strong past practice favoring (men flight attendants could well argue “discriminatorily favoring”) women for that position. The physical appearance of flight attendants is not significantly affected during the first thirteen weeks of pregnancy. Thereafter, a majority of the Court is prepared to hold that the airline would not be acting discriminatorily if it discontinued flight service during the continuation of pregnancy in the second and third trimesters.
The airline must go to expense to identify and train flight attendants. It is not lightly to be supposed that it goes to that expense in an employment area which heavily favors females, only, for no valid reason, to force them off flight duty during the first thirteen weeks. During those thirteen weeks, when pregnancy is not visually evident, knowing that from the thirteenth week on the airline might properly disqualify them for flight service during the pend-ency of the pregnancy, it strains credulity beyond the reasonable point to hold that it is to be conjectured, assumed or concluded, in the absence of direct evidence, that those responsible for the decisionmaking of the airline were in fact acting pretextually and discriminating on the grounds of a difference uniquely sex-related.' No respectable reason has been advanced to find a pretext in a policy which will complicate personnel problems for the airlines, in a position for which it has traditionally preferred females, whose physical appearance will not be altered, and whose removal from flight service after thirteen weeks is clearly proper and not discriminatory. It would be too farfetched in the face of such considerations to allow an argument of pretext distilled from other, evidently distinguishable cases without such overwhelming countervailing considerations. This is not to say that as an airline executive I should have reached the same conclusion. The careful and detailed opinion of the district judge outlines substantial basis for a belief to the contrary. But it is not incumbent on the airline official to be wise-only that he or she be non-discriminatory.
With respect to that aspect of the decision, I consequently would reverse the decision of the district judge. I find no sufficient basis for a finding of discrimination in the first instance or secondarily on the basis of pretext.10 In this connection, I would point out one advantage of my conclusion. It insures the same result whichever airline and whichever district judges are involved, assuming no other indicators of sexual discrimination are present. It, therefore, avoids the undesirable result which I fear the majority decision will bring about of differing results depending on factfindings in individual cases where the issue really is essentially the same throughout the industry. Cases favoring Eastern by deciding that the immediate unpaid leave requirement effective upon the first knowledge of pregnancy was valid are:
1. Harriss v. Pan American World Airways, 437 F.Supp. 413 (N.D.Cal.1977);
2. EEOC v. Delta Air Lines, Inc., 441 F.Supp. 626 (S.D.Tex.1977), reversed and remanded on purely procedural grounds, 619 F.2d 81 (5th Cir. 1980);
3. Air Line Pilots Ass’n v. Western Air Lines, Inc., 22 E.P.D. ¶ 30,636 (N.D. Cal.1979);
*3824. Condit v. United Airlines, Inc., 12 E. P.D. ¶ 11,195 (E.D.Va.1975), affirmed as not clearly erroneous, 558 F.2d 1176, (4th Cir. 1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978).
Cases going the other way are:
1. MacLennan v. American Airlines, Inc., 440 F.Supp. 466 (E.D.Va.1977);
2. In re National Airlines, Inc., 434 F. Supp. 249 (S.D.Fla.1977);
3. The case under current consideration, Burwell v. Eastern Airlines, Inc., 458 F.Supp. 474 (E.D.Va.1978).
Nor is the argument persuasive that the rule requiring discontinuation of flight service even in the first thirteen weeks because of pregnancy should be deemed discriminatory because of widespread failure of flight attendants to honor the rule. The argument runs that the rule unfairly discriminates against the forthright and honest, in favor of the dissimulative and dishonest employees who violate a company rule and conceal existence of pregnancy. The short answer is that Title VII does not exist to create protected rights in dishonest employees. Absent a showing that Eastern connived in or winked at the failure to report, and none is shown to have existed in this case,11 that should not be a ground for invalidating an otherwise reasonable rule.
In short, it was a facially neutral treatment of a difference between men and women created by another force than human beings, and apparently immutable, which has an adverse impact on flight safety. There is no justification for pursuing a pretext claim, wholly rebutted by other evidence in the case. To the extent of the holding that mandatory discontinuation of flight service is discriminatory when enforced in the first trimester I would reverse.
Circuit Judges DONALD RUSSELL and WIDENER have authorized me to say that they concur in my dissent.
. As is also Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).
. Since the result achieved by the majority agrees that such differentiating treatment is also proper for the second trimester, all that may be said about the third trimester would apply with equal force and effect to the second. The scope of my disagreement with the majority is, thus, restricted to the first thirteen weeks of pregnancy.
. Satty, even as in the present case, involved two different employer programs which were under attack: (1) loss of seniority upon pregnancy, and (2) denial of sick leave pay to pregnant employees. The finding of impermissible discrimination, insofar as loss of seniority was concerned, has already been cited and relied on at the outset of this opinion. With respect to the denial of sick leave pay, the Court adhered to Gilbert’s conclusion.
. While the argument has less emotional appeal at a time when overcoming past discrimination against women is in the forefront of the minds of most of us, it, nevertheless, as a matter of pure logic has as much or as little validity as the argument advanced by the female employees.
. “When confronted by a facially neutral plan, whose only fault is underinclusiveness, the burden is on the plaintiff to show that the plan discriminates on the basis of sex in violation of Title VII.” (emphasis supplied). 434 U.S. at 144, 98 S.Ct. at 352.
. The flight crewmembers also are third parties directly involved. While an argument could be constructed that their interests are bound up in those of the employer, it is really a personal concern of crewmembers, the enhancement of their individual safety, which is engaged.
. 49 U.S.C. § 1421(b).
. The overwhelming majority occur in the first thirteen weeks. Approximately 10% of all implanted pregnancies will terminate in miscarriages. Ninety percent of these will occur in the first thirteen weeks. There is no indication that incapacitating miscarriages can be predicted in such a way as to confine grounding of flight attendants to only some and not all who are pregnant. The dangers of miscarriage are real in every pregnancy. Miscarriages beyond the sixth week of pregnancy are usually disabling.
. Elsewhere the Court said “the respondents have not made out the requisite showing of gender-based effect[s].” Id. at 137, 97 S.Ct. at 409.
. It should be emphasized that there is no occasion, on the facts of the case, to explore whether we have a situation where prima f°cie discrimination was not, in the end, made out or whether the defendant successfully met the burden of rebutting on the grounds of business necessity or bona fide occupational qualification a prima facie case established by the plaintiffs. The facts on which I rely to demonstrate a. safety problem of significant proportions, which cannot be confined in advance to only some of the cases of pregnancy are not in dispute.
. Nothing suggests that Eastern ignored knowledge of pregnancy and permitted the pregnant flight attendant to continue to fly. At most the plaintiffs develop from their evidence that Eastern could more effectively have ferreted out pregnant flight attendants. But that is well short of knowing disregard of the rule, which would support a finding of pretext. At most, carelessness has been made out, and that does not amount to bad faith or evil motive.