%“; v % ' . .
fi/”. . NOLON
LL  .4. PRjGPERx<%.§,R

0?‘ mum

Washingicm i.?niversm,-

mLZ’?g"f"l5 ""‘ 
__ __ >. ;\ . I U .2"3;.' V,‘-\_. § 1
 vr \ ‘ . ‘ ~ ' '  J
‘J 14" - > > t _ _ __ _ . . 1’ - *4
. . - _ ~. _~. . .4‘ fir
1; 3, ' -;'
o  “ ‘_ A ~, ... ... : 4— 1- ~ ~ " ‘I ~- R
‘ ‘ 1 V, ‘WE énné ': ,,‘-\r,‘2_ ’ ..

{kt  3  g 1:’ .'§_  _-I3.-‘ -4.‘;

=3‘ L‘ .  <_,;._,“ z I, -5; We ‘,8.

ii ” ' ‘ ‘ . >3,

hm.  —   

€*.':.*._. n".!\1§ V   X,‘  ,:;P-"VKJ
Q.-.9‘  ,¢. ~.___\;'. \  '§~‘.‘.u-’ 0

 
 

o NGRESSIONAL
 ' A  b T Universit hf Tl\/Tliissouri - Columbi
HIIW I [|||N|H |WU||1 ||H|||

8

                                                                 

LIBRARY 0:?
CONGRESS A   O10-103861180

 

PREGNANCY AS A DISCRIMINATION ISSUE

ISSUE BRIEF NUMBER IB77039

AUTHOR:
G1 adst one , Le slie

Gov ernn en t Div 1'. sion

THE LIBRARY OF CONGRESS
CONGRESSIONAL RESEARCH SERVICE

HAJOR ISSUES SYSTEH

DATE ORIGINATED Qgggggzz
DATE UPDATED g1¢;_1_4§9_

FOR ADDITIONAL INFORMATION CALL 287-5700

0731

G

30221 noxwgzznxsaaia 5 as Ysuxzaaaq

9€OYY&£ HSMEUH ?Elfl8 EUEBI

2303104
9i£aaJ .9nm3ah5£3

nozaivifl xmsnuiewoé

a&::a%D3 as Vzaaarj 131 (V)
hql¥$42 «;ga»x9; Isnazasiaanos

§3;:¥a 333831 fififlflfl

?v3g;5g§ aafisazaraa STAG
g§;g;3{§ 33?£¢€u swaa

00€n~v3s 1&5? acxrsnaoqzx Jsaorrxaaa 304 C!)

ILVO

CRS- 1 IB77039 UPDATE~07/31/80

T§§UB.D§§lElElQE

A major concern has developed over the applicability of equal employment

1 legislation to pregnant workers. The issue is whether a difference of

treatment based on the pregnancy of a worker should be considered sex
discrimination. The subject has received much publicity since the Dec. 7

'3 1976, Supreme Court ruling in General Eleg§;ig_§Q; v. gilbggt (Q29 D.s. 126

(1976)). In that case, the Court ruled that the exclusion of pregnancy from
an employer's disability benefits plan did not constitute sex discrimination
under Title VII of the Civil Rights Act of 1964 (#2 U.S.C. Sec. 2000e).
While there may be future court challenges. under Federal and state civil
rights laws, a basic policy question that faced the 95th Congress was whether
to declare different treatment based on pregnancy to be a form of sex
discrimination.

§A§EGBQQND_A!Q P0LlQl-AEALY5l§

During the last 15 years, discrimination on the basis of sex has been

prohibited by several laws and executive orders. These include the Equal Pay
Act of 1963 (29 U.S.C. 206) which prohibits discrimination on the basis of
sex in wages; followed the next year by the Civil Rights Act of 196M which
included a Title VII provision prohibiting discrimination on the basis of sex
in employment. In 1967, the President issued Executive Order 11375 amending
Executive Order 112u6 to include a prohibition of discrimination on the basis
of sex in employment by Federal contractors. The last piece of legislation
to pass which has been interpreted by HEW in its regulations to cover

xployment discrimination is Title IX of the Education Amendments of 1972 (20
u.S.C. 1681). Title Ix specifically prohibits discrimination on the basis of
sex in any education program and activity receiving Federal financial
assistance.

Guidelines and regulations to implement these laws have included
provisions relating to pregnancy. To implement Title VII of the Civil Rights
Act of 196fl, the Equal Employment Opportunity Commission first published
guidelines on sex discrimination on Dec. 2, 1965. These guidelines were
amended in harch 1972 to provide coverage of both fringe benefits and
employment policies and practices relating to pregnancy and cildbirth,
including coverage under temporary disability insurance or sick leave plans,
hiring, and termination of employment due to pregnancy.

Sex Discrimination Guidelines issued in June 1970 by the Office of Federal
Contract Compliance Programs to implement Executive Order 11246 as amended
states that: "Women shall not be penalized in their conditions of employment
because they require time away from work on account of childbearing," and
spells out the “Job Policies and Practices" to be followed.

An interpretative bulletin issued by the Wage and Hour Division of the
Department of Labor spells out the provisions included in the Equal Pay Act.
In defining wages, the bulletin states that.“payments made by an employer to
an employee which do not constitute remuneration for employment are not
'wages' to be compared for equal pay purposes. Examples are payments related
to maternity...." The issue of coverage of contributions made by an employer

;r the purpose of providing retirement, life, accident or health insurance

a or similar benefits for employees is currently being studied. Also at issue

cns- 2 1377039 UPDATE-O7/31/80

is whether or not the denial of the use» of accumulated sick leave for
pregnancy leave is a violation of the Egual.Pay Act.

HEB regulations to implement Title IX of the Education Amendments of 1972
deal with the issue of pregnancy in two areas. The first, Section 86.40,
states that "a recipient shall not apply any rule concerning a student's
actual or potential parental, family, or marital status which treats students
differently on the basis of sex." It further states that "a recipient shall
not discriminate against any student, or exclude any student from its
education program or activity, including any class or, extracurricular
activity, on the basis of such student's pregnancy, childbirth, false
pregnancy, termination of pregnancy or recovery therefrom." Secondly,
Section 86.57 provides guidelines for pregnancy, pregnancy as a temporary
disability, and pregnancy leave for employees or applicants for employment.

The 94th Congress addressed the issue of pregnancy when it enacted the
flnemployment Compensation Amendments of 1976 (26 U.S.C. 3304) which included
language stating that "no person shall be denied compensation under such
State law solely on the basis of pregnancy or termination of pregnancy."

Twenty—two States and the District of Columbia currently require private
employers to pay benefits to women disabled by pregnancy either through
specific statutes or interpretation by couts and State agencies. These
States are Alaska, California, Colorado, Connecticut, Hawaii, Illinois,
Indiana, Iowa, Kansas, Maryland, Michigan, Minnesota, Montana, New Hampshire,
New Jersey, New York, Oklahoma, Oregon, Pennsylvania, South Dakota,
Washington, and Wisconsin. I

The question of whether pregnancy should be included as a form of
discrimination based on sex has been highlighted by the Dec. 7, 1976 Supreme
Court decision in Qggeral Elggtrig_QQ; v. gilbggt (429 0.5. 125 (1976)). In
this case the Court held that the exclusion of pregnancy-related disability
from an employee temporary disability plan did not constitute sex
discrimination prohibited by Title VII of the Civil Rights Act of 1964. In
addition, the Court, on Dec. 6, 1977, held in §g§hy;;lg_ §a§_ Q9: v. gatgy
(75-536) that a company's policy of jflenying employees returning from
pregnancy leave their accumulated seniority acts both to deprive them "of
employment opportunities" and to “adversely affect [their] status as an
employee‘ in violation of Title VII of the Civil Rights Act of 1964.
Secondly, the Court ruled that a company's policy of not awarding sick—leave
gay to pregnant employees is not per se a violation of Title VII of the Civil
lights Act of 1964. They went on to say, "but the facial neutrality of such
)olicy does not end the analysis if it can be shown that exclusion of
)regnancy from the compensation conditions is a mere "pretex[t] designed to
effect an invidious discrimination against the members of one sex or the
»ther.'" Thus the case was remanded to the lower court for further
Letermination on the latter issue. The Court also, on Dec. 6, 1977, remanded
.nother case, gighgggd Unified school Distgigt v. gggg (75-1069), involving
;he denial or sick pay for absence because of pregnancy, for further
;onsideration in light of the gilbggt and gatty cases. [For a further
iscussion, see MB7B210, RIGHTS OF PREGNANT WORKERS UNDER CIVIL RIGHTS LA‘-15.]

Two recent District Court decisions may also affect pregnancy ctwerage
nder the Act. First, a recent Michigan court decision could affect the
regnancy coverage of women workers at educational institutions covered by
itle IX of the Education Amendments of 1972. In this case, §Qmgg_ Qggggnity
ghgglg v. ggg (Civil Action no. 6-71438), the court held that the Congress
id not intend to regulate employment practices under Title IX and that HEW's

CRS- 3 IB77039 UPDATE-O7/31/80
regulation was overinclusive in its coverage.

Second, the 0.3. Catholic Conference and the National Conference of
atholic Bishops on June 21, 1979, filed suit (Civil Action no. 79-1606) in
the U.S. District Court for the District of Columbia challenging the
constitutionality of the abortion section of the law. As a result the Equal
Employment Opportunities Commission (EEOC) and the 0.5. Attorney agreed to
postpone enforcement of the requirement that employers must provide aid,
leave, and medical costs for employees who have had abortions "where the life
of the mother is endangered."

In January 1980, Federal District Court Judge John H. Pratt dismissed the
Bishops’ suit on the ground that the suit was not ready for adjudication.
However, on Bar. 1n, 1980, the Bishops announced they would appeal the
dismissal.

AI.?£IE!§!.1.l”-§-1I§-9£i—11.Q..1!Q1l:P.i-§§£l!i-.113131011 en the-I.3.a§i§_21:_£.1;e;911.an.<z1

The basic argument presented favoring the enactment of legislation to
prohibit discrimination on the basis of pregnancy is that discrimination on
the basis of pregnancy affects only women and is, therefore, discrimination
on the basis of sex because only women have the ability to become pregnant.
Proponents further argue that failure to cover pregnancy will force countless
women and their families to suffer severe economic and social consequences.
iomen disabled by pregnancy and childbirth will be forced to take leave
without pay. For others, it is argued, the loss of income will encourage
abortions. Supporters of this legislation also point out that every other
Western industrial nation and 22 of our States currently require private
employers to pay income maintenance benefits to women disabled by pregnancy.

In relation to the question of cost, testimony presented from the State of
Hawaii, which has a Temporary Disability Insurance‘Law defining disability as
"total inability of an employee to perform the duties of his employment
caused by sickness, pregnancy, termination of pregnancy, or accident other
than a work injury," indicated that the costs for temporary disability
insurance have decreased since the law became effective.

the experience of one New England firm which offers paid maternity leave
benefits showed an increase in the percentage of women workers returning from
maternity leave after paid maternity leave was provided, according to an
article written by Linda Kistler and Carol ncbonough (see reference section).
This particular firm believed that the reduction in employee turnover land
savings in training costs for new employees at least partially offset the
increased cost of its paid maternity leave policy. ~

Proponents argue that if one looks strictly at the dollar amount expended
for pregnancy coverage, company health insurance policies which cover
pregnancy for wives of male employees as well as female employees should also
be included in the analysis. The defendants in the §ggg;§;_ glggtgig case
asserted that the cost of G-E.'s insurance policy for pregnancy-related
health benefits would be much greater for‘ male employees than for female
employees, because the male employees’ wives had 1uo% more babies per capita
than female employees.

aany temporary disability plans include coverage for voluntary surgery
lab as cosmetic surgery and vasectomies. Therefore, supporters of this
legislation argue that coverage of pregnancy should be included.

cRs- 4 1377039 upnm-2-o7/31/so
1.\.::.g2.-a2r.x.t§-9222§;1.19..Ii9n:2.i.§2;i.s;nation en ths=._§2§;.s._2::-£I_=2s1I.12n2:z

Major arguments presented against enactmnt of legislation to prohibit sex
discrimination on the basis of pregnancy center on three areas: (1)
pregnancy is a voluntary condition, (2) the cost would be prohibitive, and
(3) the policy might be abused.

The first argument is that pregnancy isha voluntary condition and should
not be regarded as an illness or accident under disability programs. One
question raised by opponents is "how much of the economic responsibility for
parenthood will be assumed by those men and women who choose to have children
and how much of the responsibility will be assumed by society -- either
directly through taxation or indirectly through requirements placed on
employers.“

Secondly, opponents argue that the cost of including pregnancy coverage
would be prohibitive. In its court case, General Electric introduced
testimony of an actuary that estimated nationwide coverage for an average 30
week paid maternity leave would cost employers $1.6 billion. Testimony
before the Senate stated that according to an assessment by one insurance
company, the addition of 6 weeks of pregnancy disability benefits to those
plans which currently exclude such payments would mean an average 13.2%
increase in premiums.

The third point that opponents raise- is the possibility of abusing a
policy that covers pregnancy as any other temporary disability. Several
suggestions have been offered by opponents to place stricter time limits on
coverage of pregnancy than other temporary‘ disabilities. Opponents argue
that without some reasonable limitation on duration of benefits, a:
employer's disability plan could become a type of extended severance pay plan
because many women do not return to work after childbirth.

In addition to the suggestions on time limits to curb abuse of a temporary
disability benefit plan which would include coverage of pregnancy, there was
a suggestion that a company doctor he the certifying doctor to attest to the
women's inability to work due to pregnancy.

Opponents of this legislation argue that the inclusion of pregnancy in an
employee fringe benefit package should be left to collective bargaining. It
has been argued that the National Labor Relations Act specifically forbids
Government determination of contract terms; however, the proposed legislation
to prohibit sex discrimination based on pregnancy would mandate a fringe
benefit for a certain group of workers.

It is further argued by opponents that by forcing pregnancy to be included
in temporary disability plans, the approximately 60% of employers who do not
currently have temporary disability plans for their employees will be
discouraged from starting a plan. Currently 40% of the work force, some 32
million employees, are covered by sickness and accident disability insurance.
However, only 40% of these plans cover pregnancy, usually limited to six
weeks.

Opponents also object to legislation that would not allow an employer who
provides a temporary disability plan excluding pregnancy to decrease thr

, existing benefit plan. It is believed that locking employers into upgradin_

their fringe benefit plans will be too costly, and there would be no
opportunity in the future for employers to reduce benefits across the board,
even if they were facing bankruptcy.

CRS- 57   1377039 UPDATE—O7/31/80

§229re§§i9nel-Q2:i92§

A basic policy question that faced the 95th Congress was whether or not to
-eclare different treatment. based on pregnancy "as a form of sex
discrimination. Several approaches were possible.

Several bills (5. 995, H.R- 5055) were introduced in the 95th Congress in
response to the Supreme Court decision in §gn§;al_§;§gt;ig;Q9= v. gilbggt to
amend Title VII of the Civil Rights Act of 1964 to include a prohibition of
discrimination on the basis of pregnancy. Title VII as amended by the Equal
Employment Opportunities Act of 1972 jprowides for non-discrimination in
hiring, promotion, temporary disability benefits, fringe benefits, discharge,
and compensation on the basis of sex. Many of these rights have been denied
to pregnant women. Employers of 15 or more employees, public and private
employment agencies, labor organizations with 15 or more members,
labor—management apprenticeship programs, State and local government
agencies, and public and private educational institutions with the exception
of religious educational institutions are covered.

Another bill (H.H. 5109) was introduced to amend the Internal Revenue Code
of 1954 "to deny any deduction for amounts paid or incurred by an employer
pursuant to an employee health or accident plan if such plan does not provide
certain pregnancy benefits." This approach could reach all employers but
would limit its coverage to health and accident plans.

Still another bill (H.R. 12400) would have provided an alternative to
abortion through prohibition of sex discrimination on the basis of pregnancy.

other approaches have been considered such as amending the Equal Pay Act

E 1963, which covers most private and public employees subject to the Fair

Labor Standards Act, including executive, administrative, professional and

outside sales employees. However, the Equal Pay Act only prohibits
discrimination on the basis of sex in wages.

Lrcrsrgrxog

A bill “To amend Title VII of the Civil Rights Act of 1964 to prohibit sex
discrimination on the basis of pregnancy.“ would require the same as H.R.
5055. Introduced Har. 15, 1977, and referred to the Committee on Human
Resources. Reported out of Committee (S.Rept. 95-331) on June 16, 1977.
Passed the Senate on Sept. 16, 1977, and referred to the House Education and
Labor Committee. On July 18, 1978, the House passed 3. 995, in lieu of H.R.
6075, after amending S. 995 to contain language from the House bill. Later
that day, the Senate disagreed to the House amendment. on Oct. 13, 1978, the
Senate agreed to the conference report which added the following to S. 995 as
originally passed by the Senate on July 18, 1978: "This subsection shall not
require an employer to pay for health insurance benefits for abortion, except
where the life of the mother would be endangered if the fetus where carried
to term, or except where medical complications have arisen from an abortion:
Provided, That nothing herein shall preclude an employer from providing
abortion benefits or otherwise affect bargaining agreements in regard to

Hortion." The House agreed to the conference report on Oct. 14, 1978. S.
-95 became P.L. 95’555 on Oct- 31, 1978.

CRS— 6 IB77039

Congress. House. Committee on Education and Labor.
Subcommittee on Employment Opportunities. Legislation
to prohibit sex discrimination on the basis of pregnancy.
Hearings, 95th Congress, 1st session. Apr. 6, 1977.
Washington, 0.5. Govt. Print. Off., 1977. 303 p-

----- Legislation to prohibit sex discrimination on the basis of

U.S.

3EEQ_I§-

DCSC

“CS.

1st session. June 29,

186 p.

Hearings, 95th Congress,
1977.

pregnancy, Part 2-
1977. Washington, 0-5. Govt. Print. Off.,

Committee on Human Resources.
Subcommittee on Labor. Hearings, 95th Congress, 1st
session. Apr. 26, 27, and 29, 1977. Washington, U.S.
Govt. Print. Off., 1977. 582 p.

Congress. Senate.

AED C°!§RE55IQ§AL_DQ§E!§!$§

Congress. Committees of Conference, 1978. Pregnancy
disability; conference report to accompany S.-995.
Washington, 0.5- Govt. Print. Off., 1978. 5 p.

(95th Congress, 2d session. House. Report no. 95-1786)

Congress. House. Committee on Education and Labor.
Prohibition of sex discrimination based on pregnancy;
report to accompany H.R. 6075. Washington, 0.5. Govt.
Print. Off., 1978. 18 p. (95th Congress, 2d session.
House. Report no. 95-948)

Congress. Senate. Committee on Human Resources.
Amending Title VII, Civil Rights Act of 1960; report
to accompany S. 995. Washington, 0.5. Govt. Print.
Off., 1977. 17 p." (95th Congress, 1st session.
Senate. Report no. 95-331)

QEQONOLOGY OF EVE§E§

10/31/78 -- S. 995 was signed into law (P.L. 95-555) by the
President.

10/1u/78 —- S. 995, as agreed to in conference report, was
passed by the House.

10/13/78 -- S. 995, as agreed to in conference report, was
passed by the Senate.

07/10/78 -- H.R. 6075, as amended, was passed by the House by a

vote 01 376-30. Subsequently, this passage was
vacated and S. 995 was passed in lieu after being
amended to contain language of H.R. 6075.

The Senate disagreed to House amendment of S. 995.

UPDATE-0 7/31/30.

0Q/26/78

12/06/77

09/16/77

06/29/77

04/29/77
04/27/77
on/26/77

04/06/77

04/05/77

203/16/77

03/15/77

03/02/77

12/07/76

06/03/75

06/23/72

03/12/72

CBS- 7 IB77039 UPDATE—07/31/80

H.R. 12fiO0 was introduced in the House to prohibit
sex discrimination on the basis of pregnancy.

The Supreme Court held in ygshgillg v. gatty

that a company's denial of seniority to an employee
returning from sick leave is a violation of

Title VII of the Civil Rights Act of 1964, while
the denial of sick-leave pay to pregnant employees
is not per se a violation of the same Act.

5. 995 passed the Senate by a vote of 75-11.

subcommittee on Employment
H.R. 5055 and H.B. 6075.

Hearings held
Opportunities

bY
on

Subcommittee on Labor on S. 995.

Hearings held by

Hearings held Subcommittee on Labor on S. 995.

by

Hearings held by Subcommittee on Labor on S. 995.

Subcommittee on Equal Employment

H.E. 5055.

Hearings held
Opportunities

bY
on

H.R. 6075 introduced to prohibit sex discrimination
on the basis of pregnancy.

H.B. 5109 introduced to disallow tax deductions of
all employers who provide benefits for temporary
disabilities except pregnancy—related disabilities.

H.R. 5055 and S. 995 and other bills introduced to
prohibit sex discrimination on the basis of
pregnancy.

H.R. H357 introduced to prohibit sex discrimination
on the basis of pregnancy.

The Supreme Court held in (_;_eg_e_§_a_]_._§lg<_:1:_ri_<;_§_g: v.
§;;bggt_gt_§;: that the exclusion of pregnancy-‘elated
disability from employee benefit plans does not
constitute sex discrimination as prohibited by Title
VII of the Civil Rights Act of 1964. A

Issuance of Final Title IX Regulation implementing
Education Amendments of 1972 which includes a
prohibition against discrimination on the basis of
pregnancy in employment or in education programs or
activities.

Passage of P-L. 92-318, the Education Amendments of
1972, which prohibits discrimination on the basis

of sex in any education program or activity receiving
Federal financial assistance under Title IX of this
Act.

Issuance of Equal Employment.Opportunity Commission

cns- 3 1377039 UPDATE-O7/31/B0

Guidelines to implement Title VII of the Civil
Rights Act of 196a which prohibits discrimination
on the basis of sex in employment. The Guidelines
define pregnancy as a temporary disability for
coverage in employee benefit.plans and prohibit
discrimination on the basis of pregnancy in hiring.

08/31/71 -- Issuance of an interpretative bulletin on Title
29, Part 800 of the Code of Federal Regulations on
Equal Pay for Equal Work by the 0.5. Department
of Labor's iage and Hour Division which excludes
payments related to maternity as wages covered by
the Equal Pay Act of 1963, which prohibits
discrimination based on sex in wages.

06/09/70 —— Issuance of Sex Discrimination Guidelines by the
Office of Federal Contract Compliance to implement
Executive Order 11246 as amended by Executive Order
11375, which prohibits discrimination on the basis
of sex by Federal contractors. The Guidelines
outline coverage of pregnancy under leave policies.

10/13/67 -- Issuance of Executive Order 11375 to amend Executive
Order 112fl6 prohibiting discrimination in employment
by Federal contractors on account of sex, in addition
to the earlier prohibitions against discrimination
based on race, color, religion, and national origin.

07/02/64 -— Passage of P.L. 8&*352, Title VII of the Civil
Rights Act of.196fl, which prohibits sex discrimination
in employment, as well as on the basis of race,
color, religion, and national origin.

06/10/63 -- Passage of P.L. 88-33, the Equal Pay Act, amending
the Fair Labor standards Act to prohibit
discrimination on the basis of sex in the payment
of wages for equal work on jobs that require equal
skill, effort, and responsibility.

v. §;;bert_et al.‘ (#29 U.S. 125

Greenwald, Carol. naternity leave policy. Good government,
v. 91, summer 197a: 12-15.

Kistler, Linda, and Carol Hcnonough. Paid maternity leave —— benefits
may justify the cost. Labor law journal, v. 26, December
1975: 732-79u.

0.5. Dept. of Labor. Employment Standards Administration.
Women's Bureau. naternity standards. A reprint from
the 1975 handbook on women workers. [Hashington] 1976.
p. 339-357.

0.5. Library of Congress- Congressional Research Service.

CBS- 9 1377039 UPDATE-01/31/80

§e§hz;;;e-§e§-92- v- §2§:1= Title VII and the pregnant
worker reconsidered [by] Charles Dale. Jan. 2, 1978. [Washington]
1978. 20 p.

---- Rights of pregnant workers under Federal civil rights
laws: The Supreme Court's divergent interpretation
[by] Karen J. Lewis. (Continuously updated)
mini Brief 78210

---- Sex discrinination and the U.S. supreme Court [by]
Karen J. Lewis. Nov. 18, 1976; Rev. Aug. 3, 1977.
[Washington] 1977. 76 p.

nultilith 77—178A

LIBRARY %
F

0
WASHINGTON
UNIvEnsrrY

_ s1’. Lows — MO.