concurring in part and dissenting in part:
I concur with the majority’s holding that discrimination against a pregnant woman that is not based on her ability to work constitutes illegal sex discrimination. I am concerned, however, that the majority’s conclusion in this case has put employers in a difficult spot. As I see it, the employer has two options: (1) change the pregnant employee’s duties and continue to pay her for what she did prior to her pregnancy; or (2) continue to use the pregnant woman in her current position until she herself decides or it becomes objectively irrefutable that she can no longer perform her duties.
The first alternative imposes a financial hardship on an employer who may be genuinely concerned about an employee’s health or safety. Also, this foreseeable cost could cause less generous employers to prefer male applicants over female applicants of child bearing age.1
The second alternative appears more palatable, and presumably was the avenue preferred by the petitioner in this case. It, however, lays the groundwork for a very problematic scenario: Could a pregnant employee who injured herself or her baby *64in the course of her employment successfully claim that the injury was the result of the deliberate intention of her employer? If so, she might be able to recover tort damages from her employer in addition to workers’ compensation. See W.Va.Code § 23-4-2(b) (1985). Hopefully not. If so, then we have put the employer in a position where he cannot possibly make a correct choice.
I sympathize with employers who must discern the fine line between a woman who is pregnant but capable of performing her job and a woman who might be endangering herself or her baby by continuing to perform strenuous tasks. The decision today compels employers to allow a pregnant worker to continue her duties until she or her doctor decides otherwise. In my opinion, such a decision should also imply the assumption of some risk of injury by the pregnant employee.
Although I agree with the law regarding pregnancy discrimination as sex discrimination as found by the majority, I respectfully dissent to its holding as to back pay. The majority awarded the appellant back pay from the date of her termination until the date she got another job almost two years later. The appellant was an hourly employee, and had no written contract. Frank’s Shoe Store had no disability leave for men or women sufficient to cover the time from the birth of her child until she was released from her doctor’s care five weeks later.2 Kathy Varney, therefore, would have had to resign no later than the date her baby was born. Frank Peters, Jr. testified that Kathy Varney indicated her desire to come back after the baby was born, and that he agreed. Kathy Varney testified that there was no agreement to rehire her. [HRC Tr. 72,171]. The record reflects no consideration or detrimental reliance relative to this agreement, if in fact there was one. I do not believe that such evidence constitutes substantial evidence of an enforceable contract to rehire by the employer, or to return to work by the appellant. I would, therefore, have limited the award of back pay to the period prior to delivery.
I am authorized to state that Justice NEELY joins me in this dissent.
. Eighty-five percent of working women will be pregnant at least once during their working careers. S. Kamerman, A. Kahn & P. Kingston, Maternity Policies and Working Women 25 (1983). Given this statistic, even the most broad-minded employer must consider the effect of employee pregnancies on the orderly operation of his or her business.
. To date, most courts considering the issue have held that a sex-neutral leave policy that does not allow a sufficient leave for childbearing is not actionable sex discrimination. See, generally Note, Employment Equality Under the Pregnancy Discrimination Act of 1978, 94 Yale LJ. 929, 940-43 (1985).