                                        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
.,   ’




     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
                     -




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
.   ’




    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
                                                                                           -




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.
                                                                        .

                                          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
