Untitled Texas Attorney General Opinion ( 1974 )

March 4, 1974
The Honorable Joe Allen, Chairman Opinion No. H- 251
Committee on House Administration
House of Representatives Re: Questions relating to
Austin, Texas 78711 the rights of women
employed by the State
Dear Representative Allen:
Your letter, submitted at the request of the Committee on House
Administration, asks a number of questions concerning maternity
policies of the Legislature and other branches of the State Government.
Your first question asks:
“May the employment of a female state employee
be legally terminated merely because she is pregnant?
If so, at what point in the pregnancy and under what
conditions may the employment be terminated? ”
.
We are unaware of any state-wide policy with reference to the
termination of employment of women employees because of pregnancy,
and we understand that departmental policies may vary from the extreme
of no policy at all to the opposite pole of one department which advises
that, until recently, its policy dictated that “at the end of six months
of pregnancy a condition of temporary disability will be considered to
exist. ” The employee is allowed to exhaust accumulated vacation time,
compensatory time and sick leave, all of which are usually insufficient
to cover the period before the child is born. After child birth, this
department considers the employee available for rehire as soon as there
edstr a vacancy.
The Appropriation Act for fiscal 1974 and 1975 (Laws 1973, 63rd
Leg., ch. 659, p. 1786) in its Article V; 5 7(b) (p. 2200) recognizes preg-
nancy and confinement as a baris for temporary leave, not complete
termination. It provides:
p, 1170
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The Honorable Joe Allen, page 2 (H-251)
“Sick leave with pay may be taken when
sickness, injury, or pregnancy and confinement
prevent the employee’s performance of duty. . . .
II
. . . .
“Exceptions to the amount of sick leave an
employee may take may be authorized by the adrnin-
istrative head or heads of an agency of the State
provided such exceptions are authorized on an
individual basis after a review of the merits of
such particular case. ”
Prior to 1972 it was the established policy of the Texas State Employ-
ment Commission to require that pregnant employees take a maternity
leave of absence without pay no later than two months before the expected
date of delivery. Reinstatement at the end of the leave was not automatic.
This policy was upheld as reasonable under the Equal Protection Clause of
the Fourteenth Amendment in Schattman v. Texas Employment Commission,
459 F.2d 32 (5th Cir. 1972), cert denied 409 U.S. 1107, the Court also
holding that the sex discrimination provisions of Title VII of the Civil Rights
Act of 1964 (42 USC $ $2003e, et seq.) did not apply to the Commission
because it was an expressly excluded State agency.
Other Courts of Appeals ruled differently. See, for instance, Green
b Waterford Board of Education, 473 F.2d 629 i2d Cir., 1973); Buckley
V. Coyle Public School System, 476 F. 2d 92 (10th Cir. 1973). This conflict
prompted the United States Supreme Court to grant certiorari in two cases
involving school board policies requiring separation of teachers either 5
months before birth, in one instance, or 4 months before in the other.
Cleveland Board of Education v. LaFleur, - u. s.-, 42 LW 4186 (Jan. 21,
1974).
The Court, in the majority opinion by Justice Stewart, stated the
question before it as follows:
p. 1171
The Honorable Joe Allen, page 3 (H-251)
“This Court has long recognized that freedom
of paraonal choice in matters of marriage and family
life is one of the liberties protected by the Due Pro-
cess Clause of the Fourteenth Amendment. Roe v.
Wade, 410 U.S. 113; Loving Y. Virginia, 388 U.S. 1.
12; Griswold v. Connecticut, 381 U.S. 479; Pierce v.
Society of Sisters2 268 U.S. 510; Meyer V. Nebraska, ’
262 U.S. 390. See also Prince v. Massachusetts, 321
U.S. 158; Skinner v. Oklahoma, 316 U.S. 535. As we
noted in Eisenstadt v. Baird, 405 U.S. 438,453, there
is a right ‘to be free from unwarranted governmental
intrusion into matters 80 fundamentally affecting a
person as the decision whether to bear or beget a child.’
“By acting to penalize the pregnant teacher for
deciding to bear a child, overly restrictive maternity
leave regulations can constitute a heavy burden on the
exercise of these protected freedoms. Because public
school maternity leave rules directly affect ‘one of
the basic civil rights of man, ’ Skinner v. Oklahoma,
rupra, at 541, the Due Process Clause of the Fourteenth
Amendment requires that such rules must not needlessly,
arbitrarily, or capriciously impinge upon this vital area
of a teacher’s constitutional liberty. The question before
us in these cases is whether the interests advanced in
support of the rules of the Cleveland and Chesterfield
County School Boards can justify the particular procedure
they have adopted. ” (42 LW at 4189) (emphasis added)
It concluded that the mandatory “cut-off” dates had no rational rela-
tionship to any valid state interests of continuity of teaching since, in some
instancea, it could have the opposite effect. As to the goal of maintaining
healthy teachers in the classroom, the Court pointed to the fact that the
medical witnesses agreed unanimously that the ability of any one pregnant
woman to continue at work past any fixed time in her pregnancy is very
much an individual matter. “Thus, the conclusive presumption embodied
in these rules. . . ie neither Inecessarily nor universally true, ’ and is
violative of the Due Process Clause.” (42 LW at 4190)
p. 1172
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The Honorable Joe Allen, page 4 (I-I-251)
The Court’8 decision, however, cannot be read as condemning
out of hand all rules requiring separation of an employee at a certain,
fixed time before delivery. In a footnote to its holding, the Court said:
“This is not to say that the only means for pro-
viding appropriate protection for the rights of preg-
nant teachers ir an individualized determination in
each case and in every circumstance. We are not
dealing in these cases with maternity leave kegula-
tione requiring a termination of employment at some
firm date during the last few weeks of pregnancy. We
therefore have no occarion to decide whether such
regulations might be justif ied by considerations not
presented in these records- for example, widespread
medical coneenaus about the ‘disabling’ effect of
pregnancy on a teacher’s job performance during these
latter daye., or evidence showing that such firm cut-
offs were the only rearonable method of avoiding the
possibility of labor beginning wtile some teacher was
in the classroom, or proof that adequate substitutes
could not be procured without at leant some minimal
lead timeand certainty as to the dates upon which their
employment was to begin. ” (footnote 13, 42 LW at 4191)
As to when an employee may return to work after delivery, the
Court in h Fleur struck down as unconstitutionally arbitrary and irra-
Honal a requirement of the Cleveland Board of Education that return
could not be effected until at least three months after delivery. The
Court upheld the requirement of a medical certificate.
The facts involved in La Four took place prior to the 1972 amend-
ments to Title VII of the Civil Rights Act making those provisions appli-
cable, with certain exceptions, to state agencies and educational inrtitu-
tionr. The Court recognized that development lessened the impact of its
decision which was rendered on constitutional rather than statutory grounds
(footnote 8, 42 LW kt 4188).
p. 1173
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The Xonorable Joe Allen, page 5 (H-251)
The Civil Rightr Act of 1964 in itr $703 (42 USC, ! 2000e-2) pro-
vider, in part:
“(a) It shall be an unlawful employment practice for
an employer -
“(I) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against
any individual with respect to hia compensation,
terms, conditions, or privileges of employment,
because of such individual’s race, color, religion,
sex, or national origin; or
“(2) to limit, segregate, or classify his em-
ployees in any way which would deprive or tend to
deprive any individual of employment opportunities
or otherwise adversely affect his status as an em-
ployee, because of such individual’8 race, color,
religion, sex, or national origin. ”
Pursuant to the authority granted it in 5 713(b) of the Act (42 USC,
$2000e-12) the Equal Employment Opportunity Commission has issued
guidelines as follows (29 CFR 5 1604.10):
“$ 1604. 10 Employment policies relating to pregnancy
and childbirth.
“(a) A written or unwritten employment policy
or practice which excludes from employment appli-
cants or employeea hecau8e of pregnancy is in prima
facie violation of Title VII.
“(b) 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 employ-
ment. Written and unwritten employment policies and
p. 1174
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The Honorable Joe Allen, page 6 (H-251)
practices involving mattera such a8 the commence-
ment and duration of leave, the availability of ex-
tensions, the accrual of seniority and other benefits
and privileges, reinstatement, and payment under
any health or temporary diaability insurance or rick
leave plan, formal or informal, shall be applied to
disability due to pregnancy or childbirth on the same
tarma and condition6 aa they are applied to other
temporary disabilities.
“(c) Where the termination of an employee
who is temporarily disabled is caused by an employ-
ment policy under which insufficient or no leave ia
available, such a termination violates the Act if it
has a disparate impact on employees ofone sex and
is not justified by business necessity. ”
The answer to your first quertion, therefore, would appear to be
that employment of a female state employee may not be legally terminated
merely becaure she ia pregnant, if by “terminate” you mean a complete
ending. On the other hand, an agency may adopt a policy, heed on
reasonable factual findings. requiring a pregnant woman to take a leave
of absence when her health would be endangered or her job performance
would be impaired by her remaining on the job. And other reasonable
regulations, such aa the requirement of notice, may be required, provided
they are required of G temporarily dirabled per8or.s.
The decision as to when that should be will have to be determined
on a case-by-case basis unless there is sufficient unanimity among the
medical community that a “reasonable” date prior to delivery could be
agreed upon.
Your recond question asks:
“If your answer to the first quertion is yea,
and a female employee is dismissed because of her
pregnancy:
“a. What are her rights with regard to accrued
vacation and sick leave?
p. 1175
The Honorable Joe Allen, page 7 (H-251)
“b. What are her rights with regard to
future employment with the state, especially with
the agency or office where she was previously
employed?
“C. If she is rubrequently employed by the
same or another state agency or office, what
rights would she have with regard to job clasri-
fication, rate of compensation, retirement bene-
fits, and other job benefits? ”
The answer to these is simply that pregnancy and childbirth may not
be treated as different from any other sort of temporary disability. A
pregnant woman, upon taking leave of absence to have her child, should
be allowed to exhaust her vacation time and sick leave and, if it is the
agency’s policy to extend sick leave in the event of other types of tempo-
rary disability, she should be entitled to similar consideration.
The pregnant woman’s right
to future employment in the same or
any other rtate agency, her righta to job clarrification, compensation,
retirement benefits, and other job benefits should be determined exactly
as if her leave were occasioned by an injury or illness.
Your third question arkr:
“If your answer to the first quertion is no;
and a female employee is dismiraed because of preg-
nancy:
“a. What are her rights with regard to rein-
statement, damagea , am other relief?
“b. If she is subsequently employed by the
rame or another state agency or office, what rights
would she have with regard to job classification, rate
of compenration, retirement benefits, and other job
benefita? ”
p. 1176
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The Honorable Joe Allen, page 8 (Ii-2s)
An employee who haur been separated from rtate employment becauro
of an unconrtitutional employment policy, will be entitled to cerbia reme-
diea depending upon the facts of each care. No definite rule may be rtated,
but remedies might include reinrtatement with or without back pay, back
pay without reinstatement, and/or other remedies made legally appropriate
by the circumatancer of a given care.
Your fourth quertion ir:
“May etatc agencies and officea grant temporary
leaves of absence without any pay to pregnant female
employees, and at the end of such leave, reinrtate ruch
employees in the same job claraification and at the #ame
rate of compensation that they previously held? ”
We think our answers to the firat and second quertions answer your
fourth. Basically, the pregnant woman rhould be accorded the game rightr
given other employees abrent from work for temporary disability.
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SUMMARY
1. Employment of a state employee may not be
terminated merely because she is pregnant.
2. Where it ir factually ertablished that it ir
unhealthy for the woman or impairs her job for a preg-
oant woman to continue working, rhe may be required
to take a leave of absence. The determination is to
be made on an individual baais unless there ir unanimity
among medical expert8 a# to a “reaeonable” date.
3. AB to the termr of a pregnant woman’8 leave
of abrence and her rights to future employment, her
rightr to job claarlflcation, compenration and retire- *
ment, they are to be determined on the 8ame barir as
are those of any temporarily disabled employee.
Attorney General of Texas
p. 1177
The Honorable Joe Allen, page 9 (H-251)
APPROVED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1178