What Is Equal? : Pregnancy on the Job Tests Law

Lillian Garland, a receptionist at the California Federal Savings & Loan office in West Los Angeles, took an unpaid disability leave in 1982 to have a baby. Upon her return three months later, however, she was told that her job was filled.

“They just told me: ‘If something comes up, we’ll give you a call,’ ” Garland said in a recent interview.

Because of Cal Fed’s action, she not only lost her job and her income but, as a result, lost custody of the child to her divorced husband.

Garland and her attorneys thought hers was a fairly obvious case of job discrimination based on pregnancy, which both Congress and the California Legislature made illegal in 1978. But the case has proved to be anything but simple.

Challenges State Law

Attorneys for Cal Fed headed off Garland’s complaint by winning a federal court order striking down California’s law, which required employers to give pregnant women up to four months of leave. In its law, Congress said there could be no discrimination in the workplace based on pregnancy. Cal Fed argued that the California law actually discriminated in favor of pregnant women.

Next month, Garland’s case will be heard by the Supreme Court, and the question it raises has set off a national debate among feminists and civil rights groups.

Some women’s groups support California’s law, arguing that it is ridiculous to allow an employer to use a federal law designed to stop discrimination against pregnant workers as a means to nullify laws designed to aid pregnant women. The U.S. 9th Circuit Court of Appeals took that view in April, 1985, when it reinstated the California law, saying the earlier District Court ruling “defies common sense, misinterprets case law and flouts” the clear intent of Congress.

‘Equality for All’

“Since men never lose their jobs due to pregnancy disability, the state statute does not grant preferential treatment to women,” said Marian M. Johnston, deputy attorney general for California. “It simply guarantees equality for all workers.”

But others, including the National Organization for Women, its Legal Defense Fund and the Women’s Project of the American Civil Liberties Union, are uneasy with the statute because it contains the kind of sex-based distinction that the proposed equal rights amendment would have wiped out.

“In the long run, we think it (a law like California’s) will hurt women because it reinstates the view that pregnancy is different from other disabilities,” said Susan Deller Ross of the Georgetown University Law Center, which opposed California in a brief filed for the national women’s organizations.

For the high court, the Garland case raises the same tough question that has troubled the justices in disputes involving alleged discrimination against minorities or the handicapped: What is equal?

Must employers, for example, give identical treatment to workers who are blind or use wheelchairs, or must they make special accommodations to ensure equality for the handicapped? Similarly, do laws requiring “equal opportunity” for minorities mandate treatment identical to that of whites--a view the Reagan Administration has advocated--or do they permit affirmative action to make up for past discrimination?

“This case has highlighted the disagreement among civil rights groups and feminists about what it means to have equality for women,” said Christine Anne Littleton, a UCLA law professor. “All sides say they are interested in equality, but there are very different views on the means to achieve it.”

The Supreme Court grappled with the pregnancy discrimination issue once before and got slapped on the wrist by Congress for its effort. In 1976, the justices ruled that General Electric Co. did not discriminate against women by omitting pregnancy from its disability insurance plan, even though it included coverage for male-only troubles such as prostate surgery. Because the GE plan treated male and female employees the same if they suffered the same disability, it was not discriminatory, the court concluded.

Congress, stunned by the narrow court ruling, sought to reverse it. The Pregnancy Discrimination Act of 1978 declared that it was illegal for an employer to discriminate against a woman “because of or on the basis of pregnancy, childbirth or related medical conditions.”

‘Treated the Same’

Leaving pregnancy off a list of disabling conditions would be considered sex discrimination under the 1978 law. Moreover, Congress added a clause to the law that read: “Women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes.”

The California Legislature, which passed its law just months after Congress acted, requires employers with 15 or more employees to offer pregnant women a disability leave of up to four months and a guarantee that the same job or a similar one will be available on their return.

Attorneys for Cal Fed, joined by the U.S. Justice Department, say California’s law clearly goes beyond the federal requirement that pregnant women “shall be treated the same” as men.

Congress “insisted that pregnant employees could not be singled out for special treatment,” said Theodore Olson, a Washington attorney representing Cal Fed. “They must be treated just as an employee with a back injury, an inflamed appendix or a hernia.”

Finds Laws in Conflict

The employers challenged California law as invalid under federal law, Olson said, because “the two are mutually exclusive. One requires equal treatment. One requires preferential treatment.”

Cal Fed has been supported in its legal action by the California Chamber of Commerce and the Merchants and Manufacturers Assn., which together represent nearly 7,000 employers. The companies point out that the vast majority of firms voluntarily seek to accommodate employees, including pregnant women, who need disability leave.

Cal Fed’s leave policy says that, “to ensure a continued work flow, the position the employee is vacating (while on leave) may have to be filled. If this happens, (the company) will make every effort to provide another, similar and suitable position.” However, despite the state law, Cal Fed says it “reserves the right to terminate an employee on leave” if his or her job has been filled and another one cannot be found.

Eight other states have pregnancy laws or regulations similar to California’s: Connecticut, Hawaii, Illinois, Massachusetts, Montana, New Hampshire, Ohio and Washington.

Second Case Before Court

Later in the Supreme Court’s current term, the justices will consider a second pregnancy discrimination case, but one whose impact is likely to be more limited. That case involves a Missouri woman who took a leave to have a child, was told that her job was filled in the interim and then filed for state unemployment benefits. She was turned down because the state law provides benefits only for people who are laid off.

The Missouri Supreme Court upheld the state action, saying the law applied equally to men and women, regardless of the reasons for their leaves of absence. However, the U.S. 4th Circuit Court of Appeals has ruled in a similar case that the federal law was intended as a “sweeping ban” on pregnancy-related job disqualifications of otherwise eligible women. (Wimberly vs. Labor and Industrial Relations Commission of Missouri, 85-129.)

Here, as in the California case, the high court must decide whether Congress sought to ban policies that cause women to suffer job discrimination because of a pregnancy or whether it intended to require identical treatment for women and men.

The cases have an obvious practical impact. More than 47 million American women are employed, according to California’s brief filed with the court, and an estimated 85% of employed women get pregnant at least once during their working lives.

Resigns Cal Fed Job

For Lillian Garland, however, the impact is less clear. After filing a complaint in 1982 about Cal Fed’s action, she was offered several jobs at branch offices in the San Fernando and San Gabriel valleys, which she turned down because she did not have a car that she could use to commute.

In November, seven months after she wanted to return, Garland was offered and accepted a job in the West Los Angeles office where she had been employed for four years. However, earlier this year, she resigned her job at Cal Fed and is working in Los Angeles as a real estate agent.

Her case was never heard by the state’s Department of Fair Employment and Housing because Cal Fed quickly filed suit against the California law and the department’s director, Mark Guerra (Cal Fed vs. Guerra, 85-494).

Hopes to Hear Arguments

Garland said she hopes the high court’s action on her complaint will help other working women, and she plans to be in Washington next month to hear the oral arguments before the Supreme Court.

“For women like me, this kind of thing can be devastating. I was evicted from my apartment and lost custody of my child,” said Garland, who has since remarried and gets to see her child on weekends.

“There’s something wrong when a mother can’t find work or housing for her children,” she said. “I don’t think you should be penalized, should lose your job, because you want to have a baby.”