Geduldig v. Aiello , 94 S. Ct. 2485 ( 1974 )

Mr. Justice Brennan,

with whom Mr. Justice Douglas and Mr. Justice Marshall join,

dissenting.

Relying upon Dandridge v. Williams, 397 U. S. 471 (1970), and Jefferson v. Hackney, 406 U. S. 535 (1972), the Court today rejects appellees’ equal protection claim, and upholds the exclusion of normal-pregnancy-related disabilities from coverage under California’s disability insurance program on the ground that the legislative classification rationally promotes the State’s legitimate cost-saving interests in “maintaining the self-supporting nature of its insurance program [,] . . . distributing the available resources in such a way as to keep benefit payments at an adequate level for disabilities that are covered, . . . [and] maintaining the contribution rate at a level that will not unduly burden participating employees . . . Ante, at 496. Because I believe that Reed v. Reed, 404 U. S. 71 (1971), and Frontiero v. Richardson, 411 U. S. 677 (1973), mandate a stricter standard of scrutiny which the State’s classification fails to satisfy, I respectfully dissent.

California’s disability insurance program was enacted to supplement the State’s unemployment insurance and workmen’s compensation programs by providing benefits to wage earners to cushion the economic effects of income loss and medical expenses resulting from sickness or injury. The legislature’s intent in enacting the program was expressed clearly in § 2601 of the Unemployment Insurance Code:

“The purpose of this part is to compensate in part for the wage loss sustained by individuals unemployed because of sickness or injury and to reduce to a minimum the suffering caused by unemployment resulting therefrom. This part shall be construed liberally in aid of its declared purpose to mitigate the evils and burdens which fall on the unemployed and disabled worker and his family.”

To achieve the Act’s broad humanitarian goals, the legislature fashioned a pooled-risk disability fund covering all employees at the same rate of contribution,¹ regardless of individual risk.² The only requirement that must be satisfied before an employee becomes eligible to receive disability benefits is that the employee must have contributed one percent of a minimum income of $300 during a one-year base period. Cal. Unemp. Ins. Code § 2652. The “basic benefits,” varying from $25 to $119 per week, depending upon the employee’s base-period earnings, begin on the eighth day of disability or on the first day of hospitalization. §§2655, 2627 (b), 2802. Benefits are payable for a maximum of 26 weeks, but may not exceed one-half of the employee’s total base-period earnings. § 2653. Finally, compensation is paid for virtually all disabling conditions without regard to cost, voluntariness, uniqueness, predictability, or “normalcy” of the disability.³ Thus, for example, workers are compensated for costly disabilities such as heart attacks, voluntary disabilities such as cosmetic surgery or sterilization, disabilities unique to sex or race such as prostatectomies or sickle-cell anemia, pre-existing conditions inevitably resulting in disability such as degenerative arthritis or cataracts, and "normal” disabilities such as removal of irritating wisdom teeth or other orthodontia.

Despite the Code’s broad goals and scope of coverage, compensation is denied for disabilities suffered in connection with a "normal” pregnancy- — disabilities suffered only by women. Cal. Unemp. Ins. Code §§ 2626, 2626.2 (Supp. 1974). Disabilities caused by pregnancy, however, like other physically disabling conditions covered by the Code, require medical care, often include hospitalization, anesthesia and surgical procedures, and may involve genuine risk to life.⁴ Moreover, the economic effects caused by pregnancy-related disabilities are functionally indistinguishable from the effects caused by any other disability: wages are lost due to a physical inability to work, and medical expenses are incurred for the delivery of the child and for postpartum care:⁵ In my view, by singling out for less favorable treatment a gender-linked disability peculiar to women, the State has created a double standard for disability compensation: a limitation is imposed upon the disabilities for which women workers may recover, while men receive full compensation for all disabilities suffered, including those that affect only or primarily their sex, such as prostatectomies, circumcision, hemophilia, and gout. In effect, one set of rules is applied to females and another to males. Such dissimilar treatment of men and women, on the basis of physical characteristics inextricably linked to one sex, inevitably constitutes sex discrimination.

The same conclusion has been reached by the Equal Employment Opportunity Commission, the federal agency charged with enforcement of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U. S. C. § 2000e et seq. (1970 ed., Supp. II), which prohibits employment discrimination on the basis of sex. In guidelines issued pursuant to Title VII and designed to prohibit the disparate treatment of pregnancy disabilities in the employment context,⁶ the EEOC has declared:

“Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written and unwritten employment policies and practices involving matters such as the commencement and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.” 29 CFR § 1604.10 (b).⁷

In the past, when a legislative classification has turned on gender, the Court has justifiably applied a standard of judicial scrutiny more strict than that generally accorded economic or social welfare programs. Compare Reed v. Reed, 404 U. S. 71 (1971), and Frontiero v. Richardson, 411 U. S. 677 (1973), with Dandridge v. Williams, 397 U. S. 471 (1970), and Jefferson v. Hackney, 406 U. S. 535 (1972). Yet, by its decision today, the Court appears willing to abandon that higher standard of review without satisfactorily explaining what differentiates the gender-based classification employed in this case from those found unconstitutional in Reed and Frontiero. The Court’s decision threatens to return men and women to a time when “traditional” equal protection analysis sustained legislative classifications that treated differently members of a particular sex solely because of their sex. See, e. g., Muller v. Oregon, 208 U. S. 412 (1908); Goesaert v. Cleary, 335 U. S. 464 (1948); Hoyt v. Florida, 368 U. S. 57 (1961).

I cannot join the Court’s apparent retreat. I continue to adhere to my view that “classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.” Frontiero v. Richardson, supra, at 688. When, as in this case, the State employs a legislative classification that distinguishes between beneficiaries solely by reference to gender-linked disability risks, “[t]he Court is not... free to sustain the statute on the ground that it rationally promotes legitimate governmental interests; rather, such suspect classifications can be sustained only when the State bears the burden of demonstrating that the challenged legislation serves overriding or compelling interests that cannot be achieved either by a more carefully tailored legislative classification or by the use of feasible, less drastic means.” Kahn v. Shevin, 416 U. S. 351, 357-358 (1974) (Brennan, J., dissenting).

The State has clearly failed to meet that burden in the present case. The essence of the State’s justification for excluding disabilities caused by a normal pregnancy from its disability compensation scheme is that covering such disabilities would be too costly. To be sure, as presently funded, inclusion of normal pregnancies “would be substantially more costly than the present program.” ⁸ Ante, at 495. The present level of benefits for insured disabilities could not be maintained without increasing the employee contribution rate, raising or lifting the yearly contribution ceiling, or securing state subsidies. But whatever role such monetary considerations may play in traditional equal protection analysis, the State’s interest in preserving the fiscal integrity of its disability insurance program simply cannot render the State’s use of a suspect classification constitutional. For while “a State has a valid interest in preserving the fiscal integrity of its programs[,] ... a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. . . . The saving of welfare costs cannot justify an otherwise invidious classification.” Shapiro v. Thompson, 394 U. S. 618, 633 (1969). Thus, when a statutory classification is subject to strict judicial scrutiny, the State “must do more than show that denying [benefits to the excluded class] saves money.” Memorial Hospital v. Maricopa County, 415 U. S. 250, 263 (1974). See also Graham v. Richardson, 403 U. S. 365, 374-375 (1971).⁹

Moreover, California’s legitimate interest in fiscal integrity could easily have been achieved through a variety of less drastic, sexually neutral means. As the District Court observed:

“Even using [the State’s] estimate of the cost of expanding the program to include pregnancy-related disabilities, however, it is clear that including these disabilities would not destroy the program. The increased costs could be accommodated quite easily by making reasonable changes in the contribution rate, the maximum benefits allowable, and the other variables affecting the solvency of the program. For example, the entire cost increase estimated by defendant could be met by requiring workers to contribute an additional amount of approximately .364 percent of their salary and increasing the maximum annual contribution to about $119.” 359 F. Supp. 792, 798.

I would therefore affirm the judgment of the District Court.

1 An employee must contribute one percent of his annual wages, not exceeding a total contribution of $85 per year ($90 for calendar year 1974 and thereafter). Cal. Unemp. Ins. Code §§ 984, 985, 2901. The ceiling on wages subject to the ope-percent contribution rate, of course, introduces a regressive element in the contribution scheme. Perhaps in recognition of this fact, the disability benefits schedule is designed to grant proportionately greater benefits to more poorly paid workers. § 2655.

2 California deliberately decided not to classify employees on the basis of actuarial data. Thus, the contribution rate for a particular group of employees is not tied to that group’s predicted rate of disability claims. 359 F. Supp. 792, 800.

3 While the Code technically excludes from coverage individuals under court commitment for dipsomania, drug addiction, or sexual psychopathy, Cal. Unemp. Ins. Code § 2678, the Court was informed by the Deputy Attorney General of California at oral argument that court commitment for such disabilities is “a fairly archaic practice” and that “it would be unrealistic to say that they constitute valid exclusions.” Tr. of Oral Arg. 13.

4 On March 2, 1974, the American College of Obstetricians and Gynecologists adopted the following Policy Statement on Pregnancy-related Disabilities:

“Pregnancy is a physiological process. All pregnant patients, however, have a variable degree of disability on an individual basis, as indicated below, during which time they are unable to perform their usual activities. (1) In an uncomplicated pregnancy, disability occurs near the termination of pregnancy, during labor, delivery, and the puerperium. The process of labor and puerperium is disabling in itself. The usual duration of such disability is approximately six to eight weeks. (2) Complications of a pregnancy may occur which give rise to other disability. Examples of such complications include toxemia, infection, hemorrhage, ectopic pregnancy, and abortion. (3) A woman with pre-existing disease which in itself is not disabling, may become disabled with the addition of pregnancy. Certain patients with heart disease, diabetes, hypertensive cardiovascular disease, renal disease, and other systemic conditions may become disabled during their pregnancy because of the adverse effect pregnancy has upon these conditions.

“The onset, termination and cause of the disability, related to pregnancy, can only be determined by a physician.” Brief for Appellees 59-60.

5 Nearly two-thirds of all women who work do so of necessity: either they are unmarried or their husbands earn less than $7,000 per year. See United States Department of Labor, Women's Bureau, Why Women Work (rev. ed. 1972); United States Department of Labor, Employment Standards Administration, The Myth and the Reality (May 1974 rev.). Moreover, this Court recognized in Kahn v. Shevin, 416 U. S. 351, 353 (1974), that “data compiled by the Women’s Bureau of the United States Department of Labor show that in 1972 a woman working full time had a median income which was only 57.9% of the median for males — a figure actually six points lower than had been achieved in 1955.” (Footnote omitted.)

6 “The Commission carefully scrutinized both employer practices and their crucial impact on women for a substantial period of time and then issued its Guidelines after it became increasingly apparent that systematic and pervasive discrimination against women was frequently found in employers’ denial of employment opportunity and benefits to women on the basis of the childbearing role, performed solely by women.” Brief for United States Equal Employment Opportunity Commission as Amicus Cuñae 10.

7 See also the proposed Sex Discrimination Guidelines issued by the Department of Labor pursuant to Exec. Order 11246, virtually adopting the EEOC’s pregnancy-related disabilities guideline, 38 Fed. Reg. 35337, 35338 (Dec. 27, 1973) (proposed 41 CFR § 60-20.3 (h) (2)).

8 However, “[i]t is important to remember, especially in the cost context, that if an employee is being paid his regular pay while disabled, he cannot collect disability pay. Therefore, it follows that any alleged financial burden on the State will be greatly diminished when employers adhere to Title VII and treat pregnancy-related disabilities the same as other disabilities by allowing women to use accumulated sick leave and possibly annual leave as well.” Brief for United States Equal Employment Opportunity Commission as Amicus Curiae 21 n. 12.

9 Similarly, under the EEOC’s Guidelines on Discrimination Because of Sex, “[i]t shall not be a defense under title VIII to a charge of sex discrimination in benefits that the cost of such benefits is greater with respect to one sex than the other.” 29 CFR §1604.9 (e).