Wimberly v. Labor & Industrial Relations Commission of Missouri

BLACKMAR, Judge,

dissenting.

The principal opinion correctly expounds the purpose of the federal and state unemployment compensation programs in providing a partial wage replacement for workers left unemployed through no fault of their own. The statute denies eligibility to those who voluntarily quit and those who are discharged for misconduct. I believe that Congress, in the 1976 amendments to the Federal Unemployment Tax Act, had the purpose of extending benefits to a woman who becomes pregnant, leaves work as the *351anticipated delivery date appears, and then offers herself for work as soon after giving birth as she is able.

I.

26 U.S.C. § 3304(a)(12), as enacted in 1976, provides as follows:

No person shall be denied compensation ... solely on the basis of pregnancy or termination of pregnancy.

It is of course assumed that Congress had some purpose in mind in enacting or amending a statute. I cannot see what Congress could have intended in enacting the provision just quoted if it did not intend to guarantee compensation to persons in the position of this claimant. The statute seems as clear to me as it did to the federal court in South Carolina and the United States Court of Appeals for the Fourth Circuit in Brown v. Porcher, 502 F.Supp. 946 (D.C.S.C.1980), affirmed 660 F.2d 1001 (4th Cir.1981), cert. denied 459 U.S. 1150, 103 S.Ct. 796, 74 L.Ed.2d 1000 (1983), the only reported case on the point.

It is sometimes suggested that the statutory amendment had no purpose beyond that of eliminating state statutory requirements such as the Utah provisions dealt with in Turner v. Department of Employment Security, 423 U.S. 44, 96 S.Ct. 249, 46 L.Ed.2d 181 (1975), which established a conclusive presumption that a woman was unavailable for work for a certain time before and after childbirth. This argument is unconvincing. Turner ruled in favor of the claimant on the basis of the federal statute, and so there was no imperative need for legislation. The statutory language furthermore, is very broad.

I agree that we are not bound by the decision of a United States Court of Appeals, whether our own Eighth Circuit or another, on a federal question. Those courts, just as ours, are immediately subordinate to the Supreme Court of the United States. We have the authority and the duty to read the law for ourselves, and decisions of coordinate courts do not control us. Decisions of other jurisdictions, however, are helpful and, in this instance, highly persuasive.

The Supreme Court denied certiorari in Brown v. Porcher, supra. I am fully mindful of the frequent cautions against reading too much into a denial of certiorari. In this instance, however, the denial is highly persuasive. The case, however, involved a recent statute of national application and a fact situation which constantly recurs. I believe that the Supreme Court would have accepted review if a majority of the justices were of the view that Brown v. Porcher was unsound. The presence of the dissenting opinion, rare in denials of certiorari, actually lends force to the denial. Justice White’s views, perhaps tentatively stated, simply did not commend themselves to a majority of the Court.

The principal opinion cites the position of the Department of Labor, and the failure to take any action to “disqualify” Missouri’s program, in support of its conclusion. I disagree emphatically. Courts, not bureaucrats, give authoritative interpretation of statutes.1 The statute before us is essentially simple, straightforward, and designed to enunciate a national policy. There may be occasion for deferring to an administrative interpretation if a statute is complicated or if technical knowledge is required, but this is not an appropriate case for deferral.2 Nor is bureaucratic inertia a *352proper circumstance in support of a holding. It may be assumed that the administrators would wait until a question in a pending case is resolved judicially.

Besides, I do not find the Department of Labor’s interpretation dispositive of the point at issue. When Justice White’s position is adduced, it must be noted that his views are those of a minority. He simply argued in favor of granting review, and pointed to other important issues not involved in this case.

The principal opinion cites legislative history in an attempt to shore up its position. If the statute is clear on its face there is no occasion to refer to legislative history. The language quoted in the principal opinion is from a 1975 bill. A responsible legislature might have felt that the quoted language was prolix and unnecessary, and that, if too many details were covered, omissions might be construed adversely to claimants. The initial bill was modified in the House of Representatives, in which it originated, and so the Senate was not privy to the initial language. There is nothing whatsoever to indicate that Congress intended to deny compensation in the situation presented by this record. It is best to start with the clear language of the statute.

The word “solely” means to the exclusion of all else. As used in the statute, it means that pregnancy cannot be used as a factor in the determination of an award. The Commission automatically classifies a pregnant woman as having voluntarily quit her job when she leaves for confinement and delivery. Pregnancy is, thus, the primary determinant in the denial of benefits. This conflicts with the purpose of the federal statute, regardless of whether state statute law specifically discriminates because of pregnancy. The application of the state statute, not its constitutionality, is being challenged.

II.

The opinion of the St. Louis Court of Appeals in Bussmann Manufacturing Co. v. Industrial Commission, 335 S.W.2d 456 (Mo.App.1960) holding that a woman who leaves work to give birth leaves her work “voluntarily without good cause attributable to [her] work or to [her] employer,” and cases following it should be disapproved.3 It is a perversion of language to say that pregnancy is “voluntary.” It is, rather, something which sometimes happens to susceptible women who engage in the necessary preliminaries.

In contrast to the Court of Appeals in Bussmann, I believe that disqualification ensues only if the termination of employment is (1) voluntary, and (2) not related to employment. An employee who tenders a permanent resignation of course leaves work voluntarily, but may still receive unemployment compensation if conditions of employment make continued working impossible.4 It follows that an employee who does not leave voluntarily is not disqualified, even though the circumstances making the termination necessary are not attributable to the employer.

A woman who becomes pregnant has to be absent from work for a time. She has no choice. The necessary period of absence can be computed within reasonably accurate perimeters. It is not necessary to rule against persons in the position of this claimant to protect the unemployment fund against claimants who could continue at their jobs, but choose to leave for their own purposes.

Our Court has never held that people in the claimant’s position are ineligible for compensation. The policy of the statute would be best served by departing from the appeals cases cited to support the denial of benefits.

I would affirm the judgment of the circuit court.

. FTC v. Colgate-Palmolive, 380 U.S. 374, 85 S.Ct. 1035, 13 L.Ed.2d 904 (1965); Staley v. Missouri Director of Revenue, 623 S.W.2d 246 (Mo. banc 1981).

. The Labor Department has not always been of the same view. In 1976 a Labor Department official wrote as follows:

... In our view, a determination disqualifying an individual from benefits when it is found that "her total or partial unemployment is due to pregnancy” ... is as discriminatory as the Utah provision ... which the Court specifically struck down. Such a provision may mean only that the individual’s work separation, whether a quit or a discharge, was because she was pregnant. A disqualification on the basis of such a provision would not be based on an individualized determination as to whether or not the individual was able to work, but only on the fact that her unemployment was due to pregnancy. CCH Unemploy. Ins. Rep. ¶ 21,842 (1976), U.S. Department of Labor, Unemployment Insurance Program Letter No. 1-76. (Emphasis added).

. Other pregnancy cases are Neely v. Industrial Comm. of Missouri, 379 S.W.2d 201 (Mo.App.1964), Davis v. Labor & Industrial Relations Committee, 554 S.W.2d 541 (Mo.App.1977).

. See City of Florissant v. Labor & Industrial Relations Committee, 613 S.W.2d 713 (Mo.App.1981).