WE'VE LOST "WOMAN"--J.K. Rowling Writes on Sex and Gender

Gathered together in one place, for easy access, an agglomeration of writings and images relevant to the Rapeutation phenomenon.

WE'VE LOST "WOMAN"--J.K. Rowling Writes on Sex and Gender

Postby admin » Sun Jul 17, 2022 9:12 pm

Librarian's Comment: Rowling's position on women's rights is rational and affirmative. She sees how women and girls are oppressed world-wide under law, in relationships, in the marketplace for employment, in human trafficking rings, and in the wholesale appropriation of their identity as alluring, sexual toys, subservient mothers, and discarded crones. These are not male problems, and the only help women need from men to address them is honest recognition of the fact that all men benefit from the oppression of all women. When men decide to "transition" into women, they do not take up any of these disabilities that afflict women in general, and they do not become useful allies in combatting this world-wide evil of female oppression. Instead, they seek to expand the scope of their masculine privilege to include the cultural misappropriation of those beautiful aspects of womanhood that are aggressively marketed as the traits of the sex -- charm, fashion, gentleness, and aesthetic beauty. Ironically, few trans men can actually reflect these delicate qualities faithfully, and their male bone structure, baritone voices, and stereotyped male characteristics shine through and spoil even the most earnest attempts to fake "female." We do not hear trans activists speaking out against the trafficking of women and children, their imprisonment in arranged marriages from childhood, their educational deprivation, and the myriad of other forms of subjugation to which they are subjected worldwide. Instead, we hear the endless self-concerned whine of privileged men who cannot obtain every last little advantage that they crave. Rowling is merely trying to preserve a meaningful distinction that you would have thought nature made perfectly clear. The pressure on outspoken women like Rowling to shut up about crimes against women and let trans men ape women for their own selfish purposes is merely the latest patriarchal move to undercut feminism at the root. If there are no women, we do not need feminism. As if men deciding to acquire one more privilege, the privilege of pretending to be women, by that arrogant act had turned all humanity into a single family where none of us suffer oppression.


J.K. Rowling Writes about Her Reasons for Speaking out on Sex and Gender Issues
by J.K. Rowling
June 10, 2020

This isn’t an easy piece to write, for reasons that will shortly become clear, but I know it’s time to explain myself on an issue surrounded by toxicity. I write this without any desire to add to that toxicity.

For people who don’t know: last December I tweeted my support for Maya Forstater, a tax specialist who’d lost her job for what were deemed ‘transphobic’ tweets. She took her case to an employment tribunal, asking the judge to rule on whether a philosophical belief that sex is determined by biology is protected in law. Judge Tayler ruled that it wasn’t.
Forstater v Center for Global Development Europe is an ongoing UK labour-law case brought by Maya Forstater against the Center for Global Development (CGD)...

In 2019, Forstater's consulting contract for CGD was not renewed after she published a series of social media messages describing transgender women as men during online discourse regarding potential reforms to the Gender Recognition Act, which led to concerns being raised by staff at CGD. Forstater challenged the non-renewal of her contract at the Central London Employment Tribunal. In December 2019, a hearing was held to establish whether Forstater's beliefs qualified as a protected belief under the Equality Act 2010. Judge Tayler ruled that they did not, stating that her gender-critical views were "incompatible with human dignity and fundamental rights of others".

-- Forstater v Center for Global Development Europe, by Wikipedia

My interest in trans issues pre-dated Maya’s case by almost two years, during which I followed the debate around the concept of gender identity closely. I’ve met trans people, and read sundry books, blogs and articles by trans people, gender specialists, intersex people, psychologists, safeguarding experts, social workers and doctors, and followed the discourse online and in traditional media. On one level, my interest in this issue has been professional, because I’m writing a crime series, set in the present day, and my fictional female detective is of an age to be interested in, and affected by, these issues herself, but on another, it’s intensely personal, as I’m about to explain.

All the time I’ve been researching and learning, accusations and threats from trans activists have been bubbling in my Twitter timeline. This was initially triggered by a ‘like’. When I started taking an interest in gender identity and transgender matters, I began screenshotting comments that interested me, as a way of reminding myself what I might want to research later. On one occasion, I absent-mindedly ‘liked’ instead of screenshotting. That single ‘like’ was deemed evidence of wrongthink, and a persistent low level of harassment began.

Months later, I compounded my accidental ‘like’ crime by following Magdalen Berns on Twitter. Magdalen was an immensely brave young feminist and lesbian who was dying of an aggressive brain tumour. I followed her because I wanted to contact her directly, which I succeeded in doing. However, as Magdalen was a great believer in the importance of biological sex, and didn’t believe lesbians should be called bigots for not dating trans women with penises, dots were joined in the heads of twitter trans activists, and the level of social media abuse increased.


I mention all this only to explain that I knew perfectly well what was going to happen when I supported Maya. I must have been on my fourth or fifth cancellation by then. I expected the threats of violence, to be told I was literally killing trans people with my hate, to be called cunt and bitch and, of course, for my books to be burned, although one particularly abusive man told me he’d composted them.

What I didn’t expect in the aftermath of my cancellation was the avalanche of emails and letters that came showering down upon me, the overwhelming majority of which were positive, grateful and supportive. They came from a cross-section of kind, empathetic and intelligent people, some of them working in fields dealing with gender dysphoria and trans people, who’re all deeply concerned about the way a socio-political concept is influencing politics, medical practice and safeguarding. They’re worried about the dangers to young people, gay people and about the erosion of women’s and girl’s rights. Above all, they’re worried about a climate of fear that serves nobody – least of all trans youth – well.


I’d stepped back from Twitter for many months both before and after tweeting support for Maya, because I knew it was doing nothing good for my mental health. I only returned because I wanted to share a free children’s book during the pandemic. Immediately, activists who clearly believe themselves to be good, kind and progressive people swarmed back into my timeline, assuming a right to police my speech, accuse me of hatred, call me misogynistic slurs and, above all – as every woman involved in this debate will know – TERF.

If you didn’t already know – and why should you? – ‘TERF’ is an acronym coined by trans activists, which stands for Trans-Exclusionary Radical Feminist. In practice, a huge and diverse cross-section of women are currently being called TERFs and the vast majority have never been radical feminists. Examples of so-called TERFs range from the mother of a gay child who was afraid their child wanted to transition to escape homophobic bullying, to a hitherto totally unfeminist older lady who’s vowed never to visit Marks & Spencer again because they’re allowing any man who says they identify as a woman into the women’s changing rooms. Ironically, radical feminists aren’t even trans-exclusionary – they include trans men in their feminism, because they were born women.

But accusations of TERFery have been sufficient to intimidate many people, institutions and organisations I once admired, who’re cowering before the tactics of the playground. ‘They’ll call us transphobic!’ ‘They’ll say I hate trans people!’ What next, they’ll say you’ve got fleas? Speaking as a biological woman, a lot of people in positions of power really need to grow a pair (which is doubtless literally possible, according to the kind of people who argue that clownfish prove humans aren’t a dimorphic species).

So why am I doing this? Why speak up? Why not quietly do my research and keep my head down?

Well, I’ve got five reasons for being worried about the new trans activism, and deciding I need to speak up.

Firstly, I have a charitable trust that focuses on alleviating social deprivation in Scotland, with a particular emphasis on women and children. Among other things, my trust supports projects for female prisoners and for survivors of domestic and sexual abuse. I also fund medical research into MS, a disease that behaves very differently in men and women. It’s been clear to me for a while that the new trans activism is having (or is likely to have, if all its demands are met) a significant impact on many of the causes I support, because it’s pushing to erode the legal definition of sex and replace it with gender.

The second reason is that I’m an ex-teacher and the founder of a children’s charity, which gives me an interest in both education and safeguarding. Like many others, I have deep concerns about the effect the trans rights movement is having on both.

The third is that, as a much-banned author, I’m interested in freedom of speech and have publicly defended it, even unto Donald Trump.

The fourth is where things start to get truly personal.
I’m concerned about the huge explosion in young women wishing to transition
and also about the increasing numbers who seem to be detransitioning (returning to their original sex), because they regret taking steps that have, in some cases, altered their bodies irrevocably, and taken away their fertility. Some say they decided to transition after realising they were same-sex attracted, and that transitioning was partly driven by homophobia, either in society or in their families.

Most people probably aren’t aware –- I certainly wasn’t, until I started researching this issue properly –- that ten years ago, the majority of people wanting to transition to the opposite sex were male. That ratio has now reversed. The UK has experienced a 4400% increase in girls being referred for transitioning treatment. Autistic girls are hugely overrepresented in their numbers.

The same phenomenon has been seen in the US. In 2018, American physician and researcher Lisa Littman set out to explore it. In an interview, she said:

‘Parents online were describing a very unusual pattern of transgender-identification where multiple friends and even entire friend groups became transgender-identified at the same time. I would have been remiss had I not considered social contagion and peer influences as potential factors.’

Littman mentioned Tumblr, Reddit, Instagram and YouTube as contributing factors to Rapid Onset Gender Dysphoria, where she believes that in the realm of transgender identification ‘youth have created particularly insular echo chambers.’

Her paper caused a furore. She was accused of bias and of spreading misinformation about transgender people, subjected to a tsunami of abuse and a concerted campaign to discredit both her and her work. The journal took the paper offline and re-reviewed it before republishing it. However, her career took a similar hit to that suffered by Maya Forstater. Lisa Littman had dared challenge one of the central tenets of trans activism, which is that a person’s gender identity is innate, like sexual orientation. Nobody, the activists insisted, could ever be persuaded into being trans.


The argument of many current trans activists is that if you don’t let a gender dysphoric teenager transition, they will kill themselves. In an article explaining why he resigned from the Tavistock (an NHS gender clinic in England) psychiatrist Marcus Evans stated that claims that children will kill themselves if not permitted to transition do not ‘align substantially with any robust data or studies in this area. Nor do they align with the cases I have encountered over decades as a psychotherapist.’

The writings of young trans men reveal a group of notably sensitive and clever people. The more of their accounts of gender dysphoria I’ve read, with their insightful descriptions of anxiety, dissociation, eating disorders, self-harm and self-hatred, the more I’ve wondered whether, if I’d been born 30 years later, I too might have tried to transition. The allure of escaping womanhood would have been huge. I struggled with severe OCD as a teenager. If I’d found community and sympathy online that I couldn’t find in my immediate environment, I believe I could have been persuaded to turn myself into the son my father had openly said he’d have preferred.

When I read about the theory of gender identity, I remember how mentally sexless I felt in youth. I remember Colette’s description of herself as a ‘mental hermaphrodite’ and Simone de Beauvoir’s words: ‘It is perfectly natural for the future woman to feel indignant at the limitations posed upon her by her sex. The real question is not why she should reject them: the problem is rather to understand why she accepts them.’

As I didn’t have a realistic possibility of becoming a man back in the 1980s, it had to be books and music that got me through both my mental health issues and the sexualised scrutiny and judgement that sets so many girls to war against their bodies in their teens. Fortunately for me, I found my own sense of otherness, and my ambivalence about being a woman, reflected in the work of female writers and musicians who reassured me that, in spite of everything a sexist world tries to throw at the female-bodied, it’s fine not to feel pink, frilly and compliant inside your own head; it’s OK to feel confused, dark, both sexual and non-sexual, unsure of what or who you are.

I want to be very clear here: I know transition will be a solution for some gender dysphoric people, although I’m also aware through extensive research that studies have consistently shown that between 60-90% of gender dysphoric teens will grow out of their dysphoria. Again and again I’ve been told to ‘just meet some trans people.’ I have: in addition to a few younger people, who were all adorable, I happen to know a self-described transsexual woman who’s older than I am and wonderful. Although she’s open about her past as a gay man, I’ve always found it hard to think of her as anything other than a woman, and I believe (and certainly hope) she’s completely happy to have transitioned. Being older, though, she went through a long and rigorous process of evaluation, psychotherapy and staged transformation. The current explosion of trans activism is urging a removal of almost all the robust systems through which candidates for sex reassignment were once required to pass. A man who intends to have no surgery and take no hormones may now secure himself a Gender Recognition Certificate and be a woman in the sight of the law. Many people aren’t aware of this.

We’re living through the most misogynistic period I’ve experienced. Back in the 80s, I imagined that my future daughters, should I have any, would have it far better than I ever did, but between the backlash against feminism and a porn-saturated online culture, I believe things have got significantly worse for girls. Never have I seen women denigrated and dehumanised to the extent they are now. From the leader of the free world’s long history of sexual assault accusations and his proud boast of ‘grabbing them by the pussy’, to the incel (‘involuntarily celibate’) movement that rages against women who won’t give them sex, to the trans activists who declare that TERFs need punching and re-educating, men across the political spectrum seem to agree: women are asking for trouble. Everywhere, women are being told to shut up and sit down, or else.

I’ve read all the arguments about femaleness not residing in the sexed body, and the assertions that biological women don’t have common experiences, and I find them, too, deeply misogynistic and regressive. It’s also clear that one of the objectives of denying the importance of sex is to erode what some seem to see as the cruelly segregationist idea of women having their own biological realities or -– just as threatening -– unifying realities that make them a cohesive political class.
The hundreds of emails I’ve received in the last few days prove this erosion concerns many others just as much. It isn’t enough for women to be trans allies. Women must accept and admit that there is no material difference between trans women and themselves.

But, as many women have said before me, ‘woman’ is not a costume. ‘Woman’ is not an idea in a man’s head. ‘Woman’ is not a pink brain, a liking for Jimmy Choos or any of the other sexist ideas now somehow touted as progressive. Moreover, the ‘inclusive’ language that calls female people ‘menstruators’ and ‘people with vulvas’ strikes many women as dehumanising and demeaning. I understand why trans activists consider this language to be appropriate and kind, but for those of us who’ve had degrading slurs spat at us by violent men, it’s not neutral, it’s hostile and alienating.

Which brings me to the fifth reason I’m deeply concerned about the consequences of the current trans activism.

I’ve been in the public eye now for over twenty years and have never talked publicly about being a domestic abuse and sexual assault survivor. This isn’t because I’m ashamed those things happened to me, but because they’re traumatic to revisit and remember. I also feel protective of my daughter from my first marriage. I didn’t want to claim sole ownership of a story that belongs to her, too. However, a short while ago, I asked her how she’d feel if I were publicly honest about that part of my life, and she encouraged me to go ahead.

I’m mentioning these things now not in an attempt to garner sympathy, but out of solidarity with the huge numbers of women who have histories like mine, who’ve been slurred as bigots for having concerns around single-sex spaces.

I managed to escape my first violent marriage with some difficulty, but I’m now married to a truly good and principled man, safe and secure in ways I never in a million years expected to be. However, the scars left by violence and sexual assault don’t disappear, no matter how loved you are, and no matter how much money you’ve made. My perennial jumpiness is a family joke -– and even I know it’s funny –- but I pray my daughters never have the same reasons I do for hating sudden loud noises, or finding people behind me when I haven’t heard them approaching.

If you could come inside my head and understand what I feel when I read about a trans woman dying at the hands of a violent man, you’d find solidarity and kinship. I have a visceral sense of the terror in which those trans women will have spent their last seconds on earth, because I too have known moments of blind fear when I realised that the only thing keeping me alive was the shaky self-restraint of my attacker.

I believe the majority of trans-identified people not only pose zero threat to others, but are vulnerable for all the reasons I’ve outlined. Trans people need and deserve protection. Like women, they’re most likely to be killed by sexual partners. Trans women who work in the sex industry, particularly trans women of colour, are at particular risk. Like every other domestic abuse and sexual assault survivor I know, I feel nothing but empathy and solidarity with trans women who’ve been abused by men.

So I want trans women to be safe. At the same time, I do not want to make natal girls and women less safe. When you throw open the doors of bathrooms and changing rooms to any man who believes or feels he’s a woman –- and, as I’ve said, gender confirmation certificates may now be granted without any need for surgery or hormones –- then you open the door to any and all men who wish to come inside. That is the simple truth.

On Saturday morning, I read that the Scottish government is proceeding with its controversial gender recognition plans, which will in effect mean that all a man needs to ‘become a woman’ is to say he’s one. To use a very contemporary word, I was ‘triggered’. Ground down by the relentless attacks from trans activists on social media, when I was only there to give children feedback about pictures they’d drawn for my book under lockdown, I spent much of Saturday in a very dark place inside my head, as memories of a serious sexual assault I suffered in my twenties recurred on a loop. That assault happened at a time and in a space where I was vulnerable, and a man capitalised on an opportunity. I couldn’t shut out those memories and I was finding it hard to contain my anger and disappointment about the way I believe my government is playing fast and loose with womens' and girls’ safety.

Late on Saturday evening, scrolling through children’s pictures before I went to bed, I forgot the first rule of Twitter –- never, ever expect a nuanced conversation –- and reacted to what I felt was degrading language about women. I spoke up about the importance of sex and have been paying the price ever since. I was transphobic, I was a cunt, a bitch, a TERF, I deserved cancelling, punching and death. You are Voldemort said one person, clearly feeling this was the only language I’d understand.

It would be so much easier to tweet the approved hashtags –- because of course trans rights are human rights and of course trans lives matter –- scoop up the woke cookies and bask in a virtue-signalling afterglow. There’s joy, relief and safety in conformity. As Simone de Beauvoir also wrote, “… without a doubt it is more comfortable to endure blind bondage than to work for one’s liberation; the dead, too, are better suited to the earth than the living.”

Huge numbers of women are justifiably terrified by the trans activists; I know this because so many have got in touch with me to tell their stories. They’re afraid of doxxing, of losing their jobs or their livelihoods, and of violence.

But endlessly unpleasant as its constant targeting of me has been, I refuse to bow down to a movement that I believe is doing demonstrable harm in seeking to erode ‘woman’ as a political and biological class and offering cover to predators like few before it.
I stand alongside the brave women and men, gay, straight and trans, who’re standing up for freedom of speech and thought, and for the rights and safety of some of the most vulnerable in our society: young gay kids, fragile teenagers, and women who’re reliant on and wish to retain their single sex spaces. Polls show those women are in the vast majority, and exclude only those privileged or lucky enough never to have come up against male violence or sexual assault, and who’ve never troubled to educate themselves on how prevalent it is.

The one thing that gives me hope is that the women who can protest and organise, are doing so, and they have some truly decent men and trans people alongside them. Political parties seeking to appease the loudest voices in this debate are ignoring women’s concerns at their peril. In the UK, women are reaching out to each other across party lines, concerned about the erosion of their hard-won rights and widespread intimidation. None of the gender critical women I’ve talked to hates trans people; on the contrary. Many of them became interested in this issue in the first place out of concern for trans youth, and they’re hugely sympathetic towards trans adults who simply want to live their lives, but who’re facing a backlash for a brand of activism they don’t endorse. The supreme irony is that the attempt to silence women with the word ‘TERF’ may have pushed more young women towards radical feminism than the movement’s seen in decades.

The last thing I want to say is this. I haven’t written this essay in the hope that anybody will get out a violin for me, not even a teeny-weeny one. I’m extraordinarily fortunate; I’m a survivor, certainly not a victim. I’ve only mentioned my past because, like every other human being on this planet, I have a complex backstory, which shapes my fears, my interests and my opinions. I never forget that inner complexity when I’m creating a fictional character and I certainly never forget it when it comes to trans people.

All I’m asking – all I want – is for similar empathy, similar understanding, to be extended to the many millions of women whose sole crime is wanting their concerns to be heard without receiving threats and abuse.
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"Pregnant Persons" originates in SCOTUS opinions in 1977/198

Postby admin » Sun Jul 17, 2022 9:34 pm

Part 1 of 2

Librarian's Comment: "Pregnant Persons" originates in SCOTUS opinions in 1977 and 1987


(1)

CALIFORNIA FEDERAL SAVINGS AND LOAN ASSOCIATION, et al., Petitioners v. Mark GUERRA, Director, Department of Fair Employment and Housing et al.
Supreme Court
479 U.S. 272

107 S.Ct. 683

93 L.Ed.2d 613

CALIFORNIA FEDERAL SAVINGS AND LOAN ASSOCIATION, et al., Petitioners
v.
Mark GUERRA, Director, Department of Fair Employment and Housing et al.

No. 85-494.

Argued Oct. 8, 1986.

Decided Jan. 13, 1987.

Syllabus

The California Fair Employment and Housing Act in § 12945(b)(2) requires employers to provide leave and reinstatement to employees disabled by pregnancy. Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, as amended by the Pregnancy Discrimination Act (PDA), specifies that sex discrimination includes discrimination on the basis of pregnancy. A woman employed as a receptionist by petitioner California Federal Savings & Loan Association (Cal Fed) took a pregnancy disability leave in 1982, but when she notified Cal Fed that she was able to return to work she was informed that her job had been filled and that there were no similar positions available. She then filed a complaint with respondent Department of Fair Employment and Housing, which charged Cal Fed with violating § 12945(b)(2). Before a hearing was held on the complaint, Cal Fed, joined by the other petitioners, brought an action in Federal District Court, seeking a declaration that § 12945(b)(2) is inconsistent with and pre-empted by Title VII and an injunction against its enforcement. The District Court granted summary judgment for petitioners, but the Court of Appeals reversed.

Held: The judgment is affirmed.

758 F.2d 390, affirmed.

Justice MARSHALL delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, concluding that § 12945(b)(2) is not pre-empted by Title VII, as amended by the PDA, because it is not inconsistent with the purposes of Title VII nor does it require the doing of an act that is unlawful under Title VII. Pp. 284-292.

(a) Title VII's purpose is "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees." Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158. Rather than limiting Title VII principles and objectives, the PDA extends them to cover pregnancy. Section 12945(b)(2) also promotes equal employment opportunity. By requiring employers to reinstate women after a reasonable pregnancy disability leave, it ensures that they will not lose their jobs on account of pregnancy. Pp. 284-290.

(b) Section 12945(b)(2) does not prevent employers from complying with both the federal law (as construed by petitioners to reject California's "special treatment" approach to pregnancy discrimination and to forbid an employer to treat pregnant employees any differently than other disabled employees) and the state law. This is not a case where compliance with both the federal and state laws is a physical impossibility. Section 12945(b)(2) does not compel employers to treat pregnant employees better than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Pp. 290-292.

Justice MARSHALL, joined by Justice BRENNAN, Justice BLACKMUN, and Justice O'CONNOR, concluded in Part III-A that both §§ 708 and 1104 of the Civil Rights Act of 1964 severely limit Title VII's pre-emptive effect by leaving state fair employment laws where they were before Title VII was enacted. Pp. 280-284.

Justice STEVENS concluded that, for purposes of holding that § 12945(b)(2) is not pre-empted by Title VII, it is not necessary to reach the question whether § 1104 applies to Title VII or whether § 708 is the only provision governing Title VII's pre-emptive scope. Pp. 292-293, n. 1.

Justice SCALIA concluded that the only provision whose effect on pre-emption need be considered is § 708 of Title VII, which prohibits pre-emption unless a state law requires or permits the doing of an act outlawed by the PDA. Because § 12945(b)(2) does not require or permit the doing of an act outlawed under any interpretation of the PDA, it is not pre-empted. Accordingly it is unnecessary to decide how the PDA should be interpreted. Pp. 295-296.

MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, in which BRENNAN, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined, and an opinion with respect to Part III-A, in which BRENNAN, BLACKMUN, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 292 SCALIA, J., filed an opinion concurring in the judgment, post, p. 295. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and POWELL, J., joined, post, p. 297.

Theodore B. Olson, Washington, D.C., for petitioners.

Marian M. Johnston, San Francisco, Cal., for respondents.

Justice MARSHALL delivered the opinion of the Court.

1
The question presented is whether Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, pre-empts a state statute that requires employers to provide leave and reinstatement to employees disabled by pregnancy.

2
* California's Fair Employment and Housing Act (FEHA), Cal.Gov't Code Ann. § 12900 et seq. (West 1980 and Supp.1986), is a comprehensive statute that prohibits discrimination in employment and housing. In September 1978, California amended the FEHA to proscribe certain forms of employment discrimination on the basis of pregnancy. See Cal.Labor Code Ann. § 1420.35, 1978 Cal.Stats., ch. 1321, § 1, pp. 4320-4322 (West Supp.1979), now codified at Cal.Gov't Code Ann. § 12945(b)(2) (West 1980).1 Subdivision (b)(2)—the provision at issue here—is the only portion of the statute that applies to employers subject to Title VII. See § 12945(e).2 It requires these employers to provide female employees an unpaid pregnancy disability leave of up to four months. Respondent Fair Employment and Housing Commission, the state agency authorized to interpret the FEHA,3 has construed § 12945(b)(2) to require California employers to reinstate an employee returning from such pregnancy leave to the job she previously held, unless it is no longer available due to business necessity. In the latter case, the employer must make a reasonable, good-faith effort to place the employee in a substantially similar job.4 The statute does not compel employers to provide paid leave to pregnant employees. Accordingly, the only benefit pregnant workers actually derive from § 12945(b)(2) is a qualified right to reinstatement.

3
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., also prohibits various forms of employment discrimination, including discrimination on the basis of sex. However, in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), this Court ruled that discrimination on the basis of pregnancy was not sex discrimination under Title VII.5 In response to the Gilbert decision, Congress passed the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. § 2000e(k). The PDA specifies that sex discrimination includes discrimination on the basis of pregnancy.6

II

4
Petitioner California Federal Savings & Loan Association (Cal Fed) is a federally chartered savings and loan association based in Los Angeles; it is an employer covered by both Title VII and § 12945(b)(2). Cal Fed has a facially neutral leave policy that permits employees who have completed three months of service to take unpaid leaves of absence for a variety of reasons, including disability and pregnancy. Although it is Cal Fed's policy to try to provide an employee taking unpaid leave with a similar position upon returning, Cal Fed expressly reserves the right to terminate an employee who has taken a leave of absence if a similar position is not available.

5
Lillian Garland was employed by Cal Fed as a receptionist for several years. In January 1982, she took a pregnancy disability leave. When she was able to return to work in April of that year, Garland notified Cal Fed, but was informed that her job had been filled and that there were no receptionist or similar positions available. Garland filed a complaint with respondent Department of Fair Employment and Housing, which issued an administrative accusation against Cal Fed on her behalf.7 Respondent charged Cal Fed with violating § 12945(b)(2) of the FEHA. Prior to the scheduled hearing before respondent Fair Employment and Housing Commission, Cal Fed, joined by petitioners Merchants and Manufacturers Association and the California Chamber of Commerce,8 brought this action in the United States District Court for the Central District of California. They sought a declaration that § 12945(b)(2) is inconsistent with and pre-empted by Title VII and an injunction against enforcement of the section.9 The District Court granted petitioners' motion for summary judgment. 33 EPD ¶ 34,227, p. 32781, 34 FEP Cases 562 (1984). Citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983),10 the court stated that "California employers who comply with state law are subject to reverse discrimination suits under Title VII brought by temporarily disabled males who do not receive the same treatment as female employees disabled by pregnancy. . . ." 34 FEP Cases, at 568. On this basis, the District Court held that "California state law and the policies of interpretation and enforcement . . . which require preferential treatment of female employees disabled by pregnancy, childbirth, or related medical conditions are pre-empted by Title VII and are null, void, invalid and inoperative under the Supremacy Clause of the United States Constitution." Ibid.11

6
The United States Court of Appeals for the Ninth Circuit reversed. 758 F.2d 390 (1985). It held that "the district court's conclusion that section 12945(b)(2) discriminates against men on the basis of pregnancy defies common sense, misinterprets case law, and flouts Title VII and the PDA." Id., at 393 (footnote omitted). Based on its own reading of Newport News, the Court of Appeals found that the PDA does not "demand that state law be blind to pregnancy's existence." 758 F.2d, at 395. The court held that in enacting the PDA Congress intended "to construct a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise." Id., at 396. Because it found that the California statute furthers the goal of equal employment opportunity for women, the Court of Appeals concluded: "Title VII does not preempt a state law that guarantees pregnant women a certain number of pregnancy disability leave days, because this is neither inconsistent with, nor unlawful under, Title VII." Ibid.

7
We granted certiorari, 474 U.S. 1049, 106 S.Ct. 783, 88 L.Ed.2d 762 (1986), and we now affirm.

III

A.

8
In determining whether a state statute is pre-empted by federal law and therefore invalid under the Supremacy Clause of the Constitution, our sole task is to ascertain the intent of Congress. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2898, 77 L.Ed.2d 490 (1983); Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55 L.Ed.2d 443 (1978). Federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. E.g., Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Second, congressional intent to pre-empt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Neither of these bases for pre-emption exists in this case. Congress has explicitly disclaimed any intent categorically to pre-empt state law or to "occupy the field" of employment discrimination law. See 42 U.S.C. §§ 2000e-7 and 2000h-4.

9
As a third alternative, in those areas where Congress has not completely displaced state regulation, federal law may nonetheless pre-empt state law to the extent it actually conflicts with federal law. Such a conflict occurs either because "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or because the state law stands "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., 467 U.S. 461, 478, 104 S.Ct. 2518, 2527, 81 L.Ed.2d 399 (1984); Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 156, 102 S.Ct. 3014, 3024, 73 L.Ed.2d 664 (1982). Nevertheless, pre-emption is not to be lightly presumed. See Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576 (1981).

10
This third basis for pre-emption is at issue in this case. In two sections of the 1964 Civil Rights Act, §§ 708 and 1104, Congress has indicated that state laws will be pre-empted only if they actually conflict with federal law. Section 708 of Title VII provides:

11
"Nothing in this title shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this title." 78 Stat. 262, 42 U.S.C. § 2000e-7.

12
Section 1104 of Title XI, applicable to all titles of the Civil Rights Act, establishes the following standard for pre-emption:

13
"Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof." 78 Stat. 268, 42 U.S.C. § 2000h-4.

14
Accordingly, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of Title VII; these two sections provide a "reliable indicium of congressional intent with respect to state authority" to regulate employment practice. Malone v. White Motor Corp., supra, 435 U.S. at 505, 98 S.Ct., at 1190.

15
Sections 708 and 1104 severely limit Title VII's pre-emptive effect. Instead of pre-empting state fair employment laws, § 708 " 'simply left them where they were before the enactment of title VII.' " Shaw v. Delta Air Lines, Inc., supra, 463 U.S., at 103, n. 24 103 S.Ct., at 2903, n. 24 (quoting Pervel Industries, Inc. v. Connecticut Comm'n on Human Rights and Opportunities, 468 F.Supp. 490, 493 (Conn.1978), affirmance order, 603 F.2d 214 (CA2 1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980)). Similarly, § 1104 was intended primarily to "assert the intention of Congress to preserve existing civil rights laws." 110 Cong.Rec. 2788 (1964) (remarks of Rep. Meader). See also H.R.Rep. No. 914, 88th Cong., 1st Sess., 59 (1963), U.S.Code Cong. & Admin.News 1964, pp. 2355 (additional views of Rep. Meader).12 The narrow scope of preemption available under §§ 708 and 1104 reflects the importance Congress attached to state antidiscrimination laws in achieving Title VII's goal of equal employment opportunity. See generally Shaw v. Delta Air Lines, Inc., 463 U.S., at 101-102, 103 S.Ct., at 2902; Kremer v. Chemical Construction Corp., 456 U.S. 461, 468-469, 472, 477, 102 S.Ct. 1883, 1890-1891, 1892, 1895, 72 L.Ed.2d 262 (1982); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63-65, 100 S.Ct. 2024, 2030-2031, 64 L.Ed.2d 723 (1980).13 The legislative history of the PDA also supports a narrow interpretation of these provisions,14 as does our opinion in Shaw v. Delta Air Lines, Inc., supra.15

16
In order to decide whether the California statute requires or permits employers to violate Title VII, as amended by the PDA, or is inconsistent with the purposes of the statute, we must determine whether the PDA prohibits the States from requiring employers to provide reinstatement to pregnant workers, regardless of their policy for disabled workers generally.

B

17
Petitioners argue that the language of the federal statute itself unambiguously rejects California's "special treatment" approach to pregnancy discrimination, thus rendering any resort to the legislative history unnecessary. They contend that the second clause of the PDA forbids an employer to treat pregnant employeesany differently than other disabled employees. Because " '[t]he purpose of Congress is the ultimate touchstone' " of the pre-emption inquiry, Malone v. White Motor Corp., 435 U.S., at 504, 98 S.Ct., at 1189 (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963)), however, we must examine the PDA's language against the background of its legislative history and historical context. As to the language of the PDA, "[ i]t is a 'familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.' " Steelworkers v. Weber, 443 U.S. 193, 201, 99 S.Ct. 2721, 2726, 61 L.Ed.2d 480 (1979) (quoting Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)). See Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10, 96 S.Ct. 1938, 1942, 48 L.Ed.2d 434 (1976); United States v. American Trucking Assns., Inc., 310 U.S. 534, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940).

18
It is well established that the PDA was passed in reaction to this Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). "When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S., at 678, 103 S.Ct., at 2628. By adding pregnancy to the definition of sex discrimination prohibited by Title VII, the first clause of the PDA reflects Congress' disapproval of the reasoning in Gilbert. Newport News, supra, at 678-679, and n. 17, 103 S.Ct., at 2628, and n. 17 (citing legislative history). Rather than imposing a limitation on the remedial purpose of the PDA, we believe that the second clause was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied. Cf. 462 U.S., at 678, n. 14, 103 S.Ct., at 2628, n. 14 ("The meaning of the first clause is not limited by the specific language in the second clause, which explains the application of the general principle to women employees"); see also id., at 688, 103 S.Ct., at 2633 (REHNQUIST, J., dissenting).16 Accordingly, subject to certain limitations,17 we agree with the Court of Appeals' conclusion that Congress intended the PDA to be "a floor beneath which pregnancy disability benefits may not drop—not a ceiling above which they may not rise." 758 F.2d, at 396.

19
The context in which Congress considered the issue of pregnancy discrimination supports this view of the PDA. Congress had before it extensive evidence of discrimination against pregnancy, particularly in disability and health insurance programs like those challenged in Gilbert and Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977).18 The Reports, debates, and hearings make abundantly clear that Congress intended the PDA to provide relief for working women and to end discrimination against pregnant workers.19 In contrast to the thorough account of discrimination against pregnant workers, the legislative history is devoid of any discussion of preferential treatment of pregnancy,20 beyond acknowledgments of the existence of state statutes providing for such preferential treatment. See infra this page. Opposition to the PDA came from those concerned with the cost of including pregnancy in health and disability-benefit plans and the application of the bill to abortion,21 not from those who favored special accommodation of pregnancy.

20
In support of their argument that the PDA prohibits employment practices that favor pregnant women, petitioners and several amici cite statements in the legislative history to the effect that the PDA does not require employers to extend any benefits to pregnant women that they do not already provide to other disabled employees. For example, the House Report explained that the proposed legislation "does not require employers to treat pregnant employees in any particular manner. . . . H.R. 6075 in no way requires the institution of any new programs where none currently exist."22 We do not interpret these references to support petitioners' construction of the statute. On the contrary, if Congress had intended to prohibit preferential treatment, it would have been the height of understatement to say only that the legislation would not require such conduct. It is hardly conceivable that Congress would have extensively discussed only its intent not to require preferential treatment if in fact it had intended to prohibit such treatment.

21
We also find it significant that Congress was aware of state laws similar to California's but apparently did not consider them inconsistent with the PDA. In the debates and Reports on the bill, Congress repeatedly acknowledged the existence of state antidiscrimination laws that prohibit sex discrimination on the basis of pregnancy.23 Two of the States mentioned then required employers to provide reasonable leave to pregnant workers.24 After citing these state laws, Congress failed to evince the requisite "clear and manifest purpose" to supersede them. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm'n, 461 U.S. 190, 206, 103 S.Ct. 1713, 1723, 75 L.Ed.2d 752 (1983). To the contrary, both the House and Senate Reports suggest that these laws would continue to have effect under the PDA.25

22
Title VII, as amended by the PDA, and California's pregnancy disability leave statute share a common goal. The purpose of Title VII is "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees." Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158 (1971). See Hishon v. King & Spalding, 467 U.S. 69, 75, n. 7, 104 S.Ct. 2229, 2234, n. 7, 81 L.Ed.2d 59 (1984); Franks v. Bowman Transportation Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976); Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973). Rather than limiting existing Title VII principles and objectives, the PDA extends them to cover pregnancy.26 As Senator Williams, a sponsor of the Act, stated: "The entire thrust . . . behind this legislation is to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life." 123 Cong.Rec. 29658 (1977).

23
Section 12945(b)(2) also promotes equal employment opportunity. By requiring employers to reinstate women after a reasonable pregnancy disability leave, § 12945(b)(2) ensures that they will not lose their jobs on account of pregnancy disability.27 California's approach is consistent with the dissenting opinion of JUSTICE BRENNAN in General Electric Co. v. Gilbert, which Congress adopted in enacting the PDA. Referring to Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), a Title VI decision, JUSTICE BRENNAN stated:

24
"[D]iscrimination is a social phenomenon encased in a social context and, therefore, unavoidably takes its meaning from the desired end products of the relevant legislative enactment, end products that may demand due consideration of the uniqueness of the 'disadvantaged' individuals. A realistic understanding of conditions found in today's labor environment warrants taking pregnancy into account in fashioning disability policies." 429 U.S., at 159, 97 S.Ct., at 419 (footnote omitted).

25
By "taking pregnancy into account," California's pregnancy disability-leave statute allows women, as well as men, to have families without losing their jobs.

26
We emphasize the limited nature of the benefits § 12945(b)(2) provides. The statute is narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth, or related medical conditions. Accordingly, unlike the protective labor legislation prevalent earlier in this century,28 § 12945(b)(2) does not reflect archaic or stereotypical notions about pregnancy and the abilities of pregnant workers. A statute based on such stereotypical assumptions would, of course, be inconsistent with Title VII's goal of equal employment opportunity. See, e.g., Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 709, 98 S.Ct. 1370, 1375, 55 L.Ed.2d 657 (1978); Phillips v. Martin Marietta Corp., 400 U.S. 542, 545, 91 S.Ct. 496, 498, 27 L.Ed.2d 613 (1971) (MARSHALL, J., concurring).

C

27
Moreover, even if we agreed with petitioners' construction of the PDA, we would nonetheless reject their argument that the California statute requires employers to violate Title VII.29 Section 12945(b)(2) does not prevent employers from complying with both the federal law (as petitioners construe it) and the state law. This is not a case where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S., at 142-143, 83 S.Ct., at 1217, or where there is an "inevitable collision between the two schemes of regulation." Id., at 143, 83 S.Ct., at 1217.30 Section 12945(b)(2) does not compel California employers to treat pregnant workersbetter than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Employers are free to give comparable benefits to other disabled employees, thereby treating "women affected by pregnancy" no better than "other persons not so affected but similar in their ability or inability to work." Indeed, at oral argument, petitioners conceded that compliance with both statutes "is theoretically possible." Tr. of Oral Arg. 6.

28
Petitioners argue that "extension" of the state statute to cover other employees would be inappropriate in the absence of a clear indication that this is what the California Legislature intended. They cite cases in which this Court has declined to rewrite underinclusive state statutes found to violate the Equal Protection Clause. See, e.g., Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 152-153, 100 S.Ct. 1540, 1546, 64 L.Ed.2d 107 (1980); Caban v. Mohammed, 441 U.S. 380, 392-393, n. 13, 99 S.Ct. 1760, 1768, n. 13, 60 L.Ed.2d 297 (1979). This argument is beside the point. Extension is a remedial option to be exercised by a court once a statute is found to be invalid.31 See, e.g., Califano v. Westcott, 443 U.S. 76, 89, 99 S.Ct. 2655, 2663, 61 L.Ed.2d 382 (1979) (quoting Welsh v. United States, 398 U.S. 333, 361, 90 S.Ct. 1792, 1807, 26 L.Ed.2d 308 (1970) (Harlan, J., concurring in result)).

IV

29
Thus, petitioners' facial challenge to § 12945(b)(2) fails. The statute is not pre-empted by Title VII, as amended by the PDA, because it is not inconsistent with the purposes of the federal statute, nor does it require the doing of an act which is unlawful under Title VII.32

The judgment of the Court of Appeals is

30
Affirmed.

31
Justice STEVENS, concurring in part and concurring in the judgment.

32
The Pregnancy Discrimination Act of 1978 (PDA) does not exist in a vacuum. As Justice WHITE recognizes in his dissent, Congress did not intend to "put pregnancy in a class by itself within Title VII," and the enactment of the PDA "did not mark a departure from Title VII principles." Post, at 298-299. But this realization does not lead me to support Justice WHITE's position; rather, I believe that the PDA's posture as part of Title VII compels rejection of his argument that the PDA mandates complete neutrality and forbids all beneficial treatment of pregnancy.1

33
In Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Court rejected the argument that Title VII prohibits all preferential treatment of the disadvantaged classes that the statute was enacted to protect. The plain words of Title VII, which would have led to a contrary result, were read in the context of the statute's enactment and its purposes.2 In this case as well, the language of the Act seems to mandate treating pregnant employees the same as other employees. I cannot, however, ignore the fact that the PDA is a definitional section of Title VII's prohibition against gender-based discrimination. Had Weber interpreted Title VII as requiring neutrality, I would agree with Justice WHITE that the PDA should be interpreted that way as well. But since the Court in Weber interpreted Title VII to draw a distinction between discrimination against members of the protected class and special preference in favor of members of that class, I do not accept the proposition that the PDA requires absolute neutrality.

34
I therefore conclude that Justice MARSHALL's view, which holds that the PDA allows some preferential treatment of pregnancy, is more consistent with our interpretation of Title VII than Justice WHITE's view is. This is not to say, however, that all preferential treatment of pregnancy is automatically beyond the scope of the PDA.3 Rather, as with other parts of Title VII, preferential treatment of the disadvantaged class is only permissible so long as it is consistent with "accomplish[ing] the goal that Congress designed Title VII to achieve." Weber, supra, at 204, 99 S.Ct., at 2727.4 That goal has been characterized as seeking "to achieve equality of employment opportunities and to remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees." Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 852-853, 28 L.Ed.2d 158 (1971).

35
It is clear to me, as it is to the Court,5 and was to the Court of Appeals,6 that the California statute meets this test. Thus, I agree that a California employer would not violate the PDA were it to comply with California's statute without affording the same protection to men suffering somewhat similar disabilities.

36
Justice SCALIA, concurring in the judgment.

37
The only provision of the Civil Rights Act of 1964 whose effect on pre-emption need be considered in the present case is § 708 of Title VII, 42 U.S.C. § 2000e-7. Although both that section and § 1104, 42 U.S.C. § 2000h-4, are described by the majority as pre-emption provisions, they are more precisely antipre-emption provisions, prescribing that nothing in Title VII (in the case of § 708) and nothing in the entire Civil Rights Act (in the case of § 1104) shall be deemed to pre-empt state law unless certain conditions are met. The exceptions set forth in the general § 1104 ban on pre-emption ("inconsisten[cy] with any of the purposes of this Act, or any provision thereof") are somewhat broader than the single exception set forth in the Title VII § 708 ban. Because the Pregnancy Disability Act (PDA) is part of Title VII, the more expansive prohibition of pre-emption particularly applicable to that Title applies. If that precludes pre-emption of Cal.Govt.Code Ann. § 12945(b)(2) (West 1980), it is unnecessary to inquire whether § 1104 would do so.

38
Section 708 narrows the pre-emptive scope of the PDA so that it pre-empts only laws which "purpor[t] to require or permit the doing of any act which would be an unlawful employment practice" under the Title. 42 U.S.C. § 2000e-7. Thus, whether or not the PDA prohibits discriminatorily favorable disability treatment for pregnant women, § 12945(b)(2) of the California Code cannot be pre-empted, since it does not remotely purport to require or permit any refusal to accord federally mandated equal treatment to others similarly situated. No more is needed to decide this case.

39
The majority not only ignores the clear antipre-emptive effect of § 708, but, even proceeding on the basis of its more generalized pre-emption analysis, decides more than is necessary. Its reasoning is essentially as follows: It is consistent with the requirements and purposes of the PDA for a State to require special treatment for pregnancy disability (Part III-B); and besides, the state law here at issue does not require special treatment for pregnancy disability (Part III-C). By parity of analysis, we can decide any issue, so long as the facts before us either do or do not present it. There are proper occasions for alternative holdings, where one of the alternatives does not eliminate the jurisdictional predicate for the other—though even in that situation the practice is more appropriate for lower courts than for this Court, whose first arrow runs no risk of being later adjudged to have missed its mark. But where, as here, it is entirely clear that an issue of law is not presented by the facts of the case, it is beyond our jurisdiction to reach it.

40
I am fully aware that it is more convenient for the employers of California and the California Legislature to have us interpret the PDA prematurely. It has never been suggested, however, that the constitutional prohibition upon our rendering of advisory opinions is a doctrine of convenience. I would affirm the judgment of the Court of Appeals on the ground that § 12945(b)(2) of the California Code does not purport to require or permit any act that would be an unlawful employment practice under any conceivable interpretation of the PDA, and therefore, by virtue of § 708, cannot be pre-empted.
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"Pregnant Persons" originates in SCOTUS opinions in 1977/198

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Part 2 of 2

41
Justice WHITE, with whom THE CHIEF JUSTICE and Justice POWELL join, dissenting.

42
I disagree with the Court that Cal.Govt.Code Ann. § 12945(b)(2) (West 1980) is not pre-empted by the Pregnancy Discrimination Act of 1978 (PDA), 92 Stat. 2076, codified at 42 U.S.C. § 2000e(k), and § 708 of Title VII. Section 703(a) of Title VII, 78 Stat. 255, 42 U.S.C. § 2000e-2(a), forbids discrimination in the terms of employment on the basis of race, color, religion, sex, or national origin. The PDA gave added meaning to discrimination on the basis of sex:

43
"The terms 'because of sex' or 'on the basis of sex' [in § 703(a) of this Title] include, but are not limited to, because of or on the basis of pregnancy, childbirth or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work. . . ." § 2000e(k).

44
The second clause quoted above could not be clearer: it mandates that pregnant employees "shall be treated the same for all employment-related purposes" as nonpregnant employees similarly situated with respect to their ability or inability to work. This language leaves no room for preferential treatment of pregnant workers. The majority would avoid its plain meaning by misapplying our interpretation of the clause in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678, n. 14, 103 S.Ct. 2622, 2628, n. 14, 77 L.Ed.2d 89 (1983). Ante, at 285. The second clause addresses only female employees and was not directly implicated in Newport News because the pregnant persons at issue in that case were spouses of male employees. We therefore stated in Newport News that the second clause had only explanatory or illustrative significance. We did not indicate in any way, however, that the second clause does not mean exactly what it says in a situation where it is directly implicated.

45
Contrary to the mandate of the PDA, California law requires every employer to have a disability leave policy for pregnancy even if it has none for any other disability. An employer complies with California law if it has a leave policy for pregnancy but denies it for every other disability. On its face, § 12945(b)(2) is in square conflict with the PDA and is therefore pre-empted. Because the California law permits employers to single out pregnancy for preferential treatment and therefore to violate Title VII, it is not saved by § 708 which limits pre-emption of state laws to those that require or permit an employer to commit an unfair employment practice.1

46
The majority nevertheless would save the California law on two grounds. First, it holds that the PDA does not require disability from pregnancy to be treated the same as other disabilities; instead, it forbids less favorable, but permits more favorable, benefits for pregnancy disability. The express command of the PDA is unambiguously to the contrary, and the legislative history casts no doubt on that mandate.

47
The legislative materials reveal Congress' plain intent not to put pregnancy in a class by itself within Title VII, as the majority does with its "floor . . . not a ceiling" approach. Ante, at 285. The Senate Report clearly stated:

48
"By defining sex discrimination to include discrimination against pregnant women, the bill rejects the view that employers may treat pregnancy and its incidents as sui generis, without regard to its functional comparability to other conditions. Under this bill, the treatment of pregnant women in covered employment must focus not on their condition alone but on the actual effects of that condition on their ability to work. Pregnant women who are able to work must be permitted to work on the same conditions as other employees; and when they are not able to work for medical reasons, they must be accorded the same rights, leave privileges and other benefits, as other workers who are disabled from working."2

49
The House Report similarly stressed that the legislation did not mark a departure from Title VII principles:

50
"It must be emphasized that this legislation, operating as part of Title VII, prohibits only discriminatory treatment. Therefore, it does not require employers to treat pregnant employees in any particular manner with respect to hiring, permitting them to continue working, providing sick leave, furnishing medical and hospital benefits, providing disability benefits, or any other matter. H.R. 6075 in no way requires the institution of any new programs where none currently exist. The bill would simply require that pregnant women be treated the same as other employees on the basis of their ability or inability to work."3

51
The majority correctly reports that Congress focused on discrimination against, rather than preferential treatment of, pregnant workers. There is only one direct reference in the legislative history to preferential treatment. Senator Brooke stated during the Senate debate: "I would emphasize most strongly that S. 995 in no way provides special disability benefits for working women. They have not demanded, nor asked, for such benefits. They have asked only to be treated with fairness, to be accorded the same employment rights as men."4 Given the evidence before Congress of the wide-spread discrimination against pregnant workers, it is probable that most Members of Congress did not seriously consider the possibility that someone would want to afford preferential treatment to pregnant workers. The parties and their amici argued vigorously to this Court the policy implications of preferential treatment of pregnant workers. In favor of preferential treatment it was urged with conviction that preferential treatment merely enables women, like men, to have children without losing their jobs. In opposition to preferential treatment it was urged with equal conviction that preferential treatment represents a resurgence of the 19th-century protective legislation which perpetuated sex-role stereotypes and which impeded women in their efforts to take their rightful place in the workplace. See, e.g., Muller v. Oregon, 208 U.S. 412, 421-423, 28 S.Ct. 324, 326-327, 52 L.Ed. 551 (1908); Bradwell v. Illinois, 16 Wall. 130, 141, 21 L.Ed. 442 (1872) (Bradley, J., concurring). It is not the place of this Court, however, to resolve this policy dispute. Our task is to interpret Congress' intent in enacting the PDA. Congress' silence in its consideration of the PDA with respect to preferential treatment of pregnant workers cannot fairly be interpreted to abrogate the plain statements in the legislative history, not to mention the language of the statute, that equality of treatment was to be the guiding principle of the PDA.

52
Congress' acknowledgment of state antidiscrimination laws does not support a contrary inference. Ante, at 287-288. The most extensive discussion of state laws governing pregnancy discrimination is found in the House Report.5 It was reported that six States, Alaska, Connecticut, Maryland, Minnesota, Oregon, and Montana, and the District of Columbia specifically included pregnancy in their fair employment practices laws. In 12 additional States, Illinois, Indiana, Iowa, Kansas, Massachusetts, Michigan, Missouri, New York, Pennsylvania, South Dakota, Washington, and Wisconsin, the prohibition on sex discrimination in the state fair employment practices law had been interpreted, either by a state court or the state enforcement agency, to require equal treatment of pregnant workers. Finally, five States, California, Hawaii, New Jersey, New York, and Rhode Island, had included pregnancy in their temporary disability laws under which private employers are required to provide partial wage replacement for temporary disabilities. The Report noted, however, that whereas California, New Jersey, and New York covered complications from pregnancy on the same basis as other disabilities, California, New Jersey, New York, and Rhode Island set maximum limits on the coverage required for disability associated with normal childbirth. The Report did not in any way set apart the Connecticut and Montana statutes, on which the majority relies, from the other state statutes. The House Report gave no indication that these statutes required anything more than equal treatment. Indeed, the state statutes were considered, not in the context of pre-emption, but in the context of a discussion of health insurance costs. The House Report expressly stated: "The significance of this State coverage" is that "many employers are already under a State law obligation to provide benefits to pregnant disabled workers. Passage of the bill thus has little or no economic impact on such employers."6

53
Nor does anything in the legislative history from the Senate side indicate that it carefully considered the state statutes, including those of Connecticut and Montana, and expressly endorsed their provisions. The Senate Report noted that "25 States presently interpret their own fair employment practices laws to prohibit sex discrimination based on pregnancy and childbirth," and Senator Williams presented during the Senate debate a list of States which required coverage for pregnancy and pregnancy-related disabilities, but there was no analysis of their provisions.7 The majority seems to interpret Senator Javits' acknowledgment that several state legislatures, including New York, his own State, had mandated certain benefits for pregnant employees as an unqualified endorsement of those state statutes. Ante, at 287, n. 23. Later, however, when pressed by Senator Hatch about the fact that the New York statute limited the required coverage of disability caused by pregnancy to eight weeks, Senator Javits had no hesitation in expressing his disagreement with the New York statute.8 Passing reference to state statutes without express recognition of their content and without express endorsement is insufficient in my view to override the PDA's clear equal-treatment mandate, expressed both in the statute and its legislative history.

54
The Court's second, and equally strange, ground is that even if the PDA does prohibit special benefits for pregnant women, an employer may still comply with both the California law and the PDA: it can adopt the specified leave policies for pregnancy and at the same time afford similar benefits for all other disabilities. This is untenable. California surely had no intent to require employers to provide general disability leave benefits. It intended to prefer pregnancy and went no further. Extension of these benefits to the entire work force would be a dramatic increase in the scope of the state law and would impose a significantly greater burden on California employers. That is the province of the California Legislature. See Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 152-153, 100 S.Ct. 1540, 1546, 64 L.Ed.2d 107 (1980); Caban v. Mohammed, 441 U.S. 380, 392-393, n. 13, 99 S.Ct. 1760, 1768, n. 13, 60 L.Ed.2d 297 (1979); Craig v. Boren, 429 U.S. 190, 210, n. 24, 97 S.Ct. 451, 463, n. 24, 50 L.Ed.2d 397 (1976). Nor can § 12945(b)(2) be saved by applying Title VII in tandem with it, such that employers would be required to afford reinstatement rights to pregnant workers as a matter of state law but would be required to afford the same rights to all other workers as a matter of federal law. The text of the PDA does not speak to this question but it is clear from the legislative history that Congress did not intend for the PDA to impose such burdens on employers. As recognized by the majority, opposition to the PDA came from those concerned with the cost of including pregnancy in health and disability benefit plans. Ante, at 286. The House Report acknowledged these concerns and explained that the bill "in no way requires the institution of any new programs where none currently exist."9 The Senate Report gave a similar assurance.10 In addition, legislator after legislator stated during the floor debates that the PDA would not require an employer to institute a disability benefits program if it did not already have one in effect.11 Congress intended employers to be free to provide any level of disability benefits they wished—or none at all—as long as pregnancy was not a factor in allocating such benefits. The conjunction of § 12945(b)(2) and the PDA requires California employers to implement new minimum disability leave programs. Reading the state and federal statutes together in this fashion yields a result which Congress expressly disavowed.

55
In sum, preferential treatment of pregnant workers is prohibited by Title VII, as amended by the PDA. Section 12945(b)(2) of the California Government Code, which extends preferential benefits for pregnancy, is therefore pre-empted. It is not saved by § 708 because it purports to authorize employers to commit an unfair employment practice forbidden by Title VII.12

1
Section 12945(b)(2) provides, in relevant part:

"It shall be an unlawful employment practice unless based upon a bona fide occupational qualification:

* * * * *

"(b) For any employer to refuse to allow a female employee affected by pregnancy, childbirth, or related medical conditions. . . .

* * * * *

"(2) To take a leave on account of pregnancy for a reasonable period of time; provided, such period shall not exceed four months. . . . Reasonable period of time means that period during which the female employee is disabled on account of pregnancy, childbirth, or related medical conditions. . . .

"An employer may require any employee who plans to take a leave pursuant to this section to give reasonable notice of the date such leave shall commence and the estimated duration of such leave."

Originally, the statute was intended to reverse, as to California employers, the rule established by this Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). At the time, California law prohibited school districts from discriminating on the basis of pregnancy, see former Cal. Labor Code Ann. § 1420.2 (1977), now codified at Cal. Gov't Code Ann. § 12943 (West 1980). The first version of § 12945 simply imposed this requirement on all California employers with five or more employees. As a result of employer opposition, however, the measure was changed to its present form.

2
Aware that legislation on this subject was pending before Congress, the state legislature added the following section:

"In the event Congress enacts legislation amending Title VII of the Civil Rights Act of 1964 to prohibit sex discrimination on the basis of pregnancy, the provisions of this act, except paragraph (2) of subdivision (b) . . . shall be inapplicable to any employer subject to such federal law. . . ." 1978 Cal. Stats., ch. 1321, § 4, p. 4322.

When Congress passed the Pregnancy Discrimination Act of 1978, this section rendered the state law, except subdivision (b)(2), invalid as applied to all employers covered by Title VII. California subsequently adopted subdivision (e), which provides:

"The provisions of this section, except paragraph (2) of subdivision (b), shall be inapplicable to any employer subject to Title VII of the federal Civil Rights Act of 1964."

3
See Cal. Gov't Code Ann. §§ 12935(a)(1) and 12935(h) (West 1980). Respondent Department of Fair Employment and Housing is the state agency charged with enforcing the FEHA. See § 12930.

4
The parties have stipulated that the Commission's interpretation of § 12945(b)(2) is set forth in its proposed regulation as reproduced in App. 47. See also Matter of Accusation of Department of Fair Employment and Housing v. Travel Express, Case No. FEP 80-81 A7-0992s N18709 83-17 (Aug. 4, 1983) (precedential Commission decision construing § 12945(b)(2)).

5
In General Electric Co. v. Gilbert, the Court held that an otherwise comprehensive disability insurance plan did not violate Title VII because it failed to cover pregnancy-related disabilities. Relying on Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), which upheld a similar plan against a Fourteenth Amendment equal protection challenge, the Court concluded that removing pregnancy from the list of compensable disabilities was not discrimination on the basis of sex. 429 U.S., at 133-136, 97 S.Ct., at 406-408. The Court further held that "[a]s there is no proof that the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminatory effect in this scheme. . . ." Id., at 138, 97 S.Ct., at 409.

Three Members of the Court dissented. See id., at 146, 97 S.Ct. at 413 (opinion of BRENNAN, J., joined by MARSHALL, J.); id., at 160, 97 S.Ct., at 420 (opinion of STEVENS, J.). The dissenting Justices would have held that the employer's disability plan discriminated on the basis of sex by giving men protection for all categories of risk but giving women only partial protection.

In Nashville Gas Co. v. Satty, 434 U.S. 136, 143-146, 98 S.Ct. 347, 352-353, 54 L.Ed.2d 356 (1977), the Court relied on Gilbert to uphold an employer's sick-leave policy that excluded pregnancy.

6
The PDA added subsection (k) to § 701, the definitional section of Title VII. Subsection (k) provides, in relevant part:

"The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise."

The legislative history of the PDA reflects Congress' approval of the views of the dissenters in Gilbert. See Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678-679, 103 S.Ct. 2622, 2628, 77 L.Ed.2d 89 and nn. 15-17 (1983) (citing legislative history).

7
Cal Fed reinstated Garland in a receptionist position in November 1982, seven months after she first notified it that she was able to return to work.

8
Petitioner Merchants and Manufacturers Association is a trade association that represents numerous employers throughout the State of California. Petitioner California Chamber of Commerce also represents many California businesses. Both organizations have members that are subject to both Title VII and § 12945(b)(2) and have disability-leave policies similar to Cal Fed's.

9
Petitioners' complaint also alleged that the California disability-leave statute was pre-empted by § 514(a) of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1144(a). The parties stipulated that petitioners' ERISA claim would be dismissed without prejudice. App. 9-10, nn. 1, 2.

10
In Newport News, the Court evaluated a health insurance plan that provided female employees with benefits for pregnancy-related conditions to the same extent as for other medical conditions, but provided less extensive pregnancy benefits for spouses of male employees. The Court found that this limitation discriminated against male employees with respect to the compensation, terms, conditions, or privileges of their employment in violation of § 703(a)(1) of Title VII. "The 1978 Act [the PDA] makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other conditions. Thus petitioner's plan unlawfully gives married male employees a benefit package for their dependents that is less inclusive than the dependency coverage provided to married female employees." 462 U.S., at 684, 103 S.Ct., at 2631.

11
After the District Court entered its judgment, Garland moved to intervene pursuant to Fed.Rule of Civ.Proc. 24(a)(2). The District Court denied her motion on several grounds: untimeliness, lack of a "direct and substantial" interest in the litigation, and inadequate representation of her interests by defendants. Her appeal from the order denying intervention was consolidated with the appeal on the merits. In an unreported order, the Court of Appeals for the Ninth Circuit affirmed the denial of intervention; Garland did not seek review of that decision here.

12
Representative Meader, one of the sponsors of the 1964 Civil Rights Act, proposed the precursor to § 1104 as an amendment to the Civil Rights Act, see 110 Cong.Rec. 2788 (1964), because he feared that § 708 and similar provisions in other titles were "wholly inadequate to preserve the validity and force of State laws aimed at discrimination." H.R.Rep. No. 914, 88th Cong., 1st Sess., 59 (1963), U.S. Code Cong. & Admin. News 1964, p. 2428 (additional views of Rep. Meader). His version provided that state laws would not be pre-empted "except to the extent that there is a direct and positive conflict between such provisions so that the two cannot be reconciled or consistently stand together." 110 Cong. Rec. 2787 (1964). The version ultimately adopted by Congress was a substitute offered by Representative Mathias without objection from Representative Meader. Id., at 2789. There is no indication that this substitution altered the basic thrust of § 1104.

13
For example, where state or local law prohibits an employment practice, § 706(c) requires deferral of federal enforcement until state or local officials have an opportunity "to act under such State or local law to remedy the practice alleged." § 2000e-5(d).

14
See, e.g., S.Rep. No. 95-331, p. 3, n. 1 (1977) (state laws prohibiting discrimination on the basis of pregnancy would not be pre-empted, "[s]ince title VII does not pre-empt State laws which would not require violating title VII"), Legislative History of the Pregnancy Discrimination Act of 1978, p. 40 (1980) (Committee Print prepared for the Senate Committee on Labor and Human Resources) (hereinafter Leg. Hist.); 123 Cong. Rec. 29643 (1977) (remarks of Sen. Williams) (state laws that create a "clear conflict" would be pre-empted).

15
In Shaw v. Delta Air Lines, Inc., 463 U.S., at 100-104, 103 S.Ct., at 2901-2903, we concluded that Title VII did not pre-empt a New York statute which proscribed discrimination on the basis of pregnancy as sex discrimination at a time when Title VII did not equate the two.

16
Several commentators have construed the second clause of the PDA in this way. See, e.g., Note, Employment Equality Under The Pregnancy Discrimination Act of 1978, 94 Yale L.J. 929, 937 (1985); Note, Sexual Equality Under the Pregnancy Discrimination Act, 83 Colum.L.Rev. 690, 696, and n. 26 (1983).

17
For example, a State could not mandate special treatment of pregnant workers based on stereotypes or generalizations about their needs and abilities. See infra, at 290.

18
See Discrimination on the Basis of Pregnancy, 1977, Hearings on S. 995 before the Subcommittee on Labor of the Senate Committee on Human Resources, 95th Cong., 1st Sess., 31-33 (1977) (statement of Vice Chairman, Equal Employment Opportunity Commission, Ethel Bent Walsh); id., at 113-117 (statement of Wendy W. Williams); id., at 117-121 (statement of Susan Deller Ross); id., at 307-310 (statement of Bella S. Abzug). See also Legislation to Prohibit Sex Discrimination on the Basis of Pregnancy, Hearings on H.R. 5055 and H.R. 6075 before the Subcommittee on Employment Opportunities of the House Committee on Education and Labor, 95th Cong., 1st Sess. (1977).

19
See, e.g., 123 Cong. Rec. 8144 (1977) (remarks of Sen. Bayh) (legislation "will end employment discrimination against pregnant workers"); 124 Cong.Rec. 21440 (1978) (remarks of Rep. Chisholm) (bill "affords some 41 percent of this Nation's labor force some greater degree of protection and security without fear of reprisal due to their decision to bear children"); id., at 21442 (remarks of Rep. Tsongas) (bill "would put an end to an unrealistic and unfair system that forces women to choose between family and career—clearly a function of sex bias in the law"); id., at 36818 (remarks of Sen. Javits) (the "bill represents only basic fairness for women employees"); id., at 38574 (remarks of Rep. Sarasin) (Subcommittee "learned of the many instances of discrimination against pregnant workers, as we learned of the hardships this discrimination brought to women and their families").

20
The statement of Senator Brooke, quoted in the dissent, post, at 300, merely indicates the Senator's view that the PDA does not itself require special disability benefits for pregnant workers. It in no way supports the conclusion that Congress intended to prohibit the States from providing such benefits for pregnant workers. See n. 29, infra.

21
See, e.g., S.Rep. No. 95-331, p. 9 (1977), Leg. Hist. 46 (discussing cost objections), U.S. Code Cong. & Admin. News 1978, pp. 4749, 4765; H.R.Conf.Rep. No. 95-1786, pp. 3-4 (1978), Leg.Hist. 196-197 (application of the PDA to abortion).

22
H.R.Rep. No. 95-948, p. 4 (1978), Leg. Hist. 150, U.S. Code Cong. & Admin. News 1978, pp. 4749, 4752. See also S.Rep. No. 95-331, supra, at 4, Leg.Hist. 41; 123 Cong.Rec. 7540 (1977) (remarks of Sen. Williams); id., at 10582 (remarks of Rep. Hawkins); id., at 29387 (remarks of Sen. Javits); id., at 29664 (remarks of Sen. Brooke).

23
See, e.g., id., at 29387 (remarks of Sen. Javits), Leg. Hist. 67 ("[S]everal state legislatures . . . have chosen to address the problem by mandating certain types of benefits for pregnant employees"). See also S.Rep. No. 95-331, supra, at 3, Leg.Hist. 40; H.R.Rep. No. 95-948, supra, at 10-11, Leg. Hist. 156-157; 123 Cong.Rec. 29648 (1977) (list of States that require coverage for pregnancy and pregnancy-related disabilities); id., at 29662 (remarks of Sen. Williams).

24
See, e.g., Conn.Gen.Stat. § 31-126(g) (1977), now codified at § 46a-60(a)(7) (1985); Mont.Rev.Codes § 41-2602 (Smith Supp.1977), now codified at Mont. Code Ann. §§ 49-2-310 and 49-2-311 (1986). The Connecticut statute provided, in relevant part:

"It shall be an unfair employment practice

* * * * *

"(g) For an employer . . . (ii) to refuse to grant to [a pregnant] employee a reasonable leave of absence for disability resulting from such pregnancy. . . . (iii) Upon signifying her intent to return, such employee shall be reinstated to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other service credits unless, in the case of a private employer, the employer's circumstances have so changed as to make it impossible or unreasonable to do so." Conn.Gen.Stat. § 31-126(g) (1977).

The Montana statute in effect in 1977 was virtually identical. Both have been recodified in current statutory compilations, but the leave and reinstatement requirements are unchanged. See also Mass.Gen.Laws ch. 149, § 149:105D (1985) (providing up to eight weeks maternity leave).

The dissent suggests that the references to the Connecticut and Montana statutes should be disregarded, because Congress did not expressly state that it understood that "these statutes required anything more than equal treatment." Post, at 301. However, we are not as willing as the dissent to impute ignorance to Congress. Where Congress has cited these statutes in the House and Senate Reports on the PDA, we think it fair to assume that it was aware of their substantive provisions.

25
For example, the Senate Report states: "Since title VII does not pre-empt State laws which would not require violating title VII . . ., these States would continue to be able to enforce their State laws if the bill were enacted." S.Rep. No. 95-331, supra, at 3, n. 1, Leg.Hist. 40.

26
"Proponents of the bill repeatedly emphasized that the Supreme Court had erroneously interpreted congressional intent and that the amending legislation was necessary to reestablish the principles of Title VII law as they had been understood prior to the Gilbert decision." Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S., at 679, 103 S.Ct., at 2628.

27
As authoritatively construed by respondent Commission, the provision will "insure that women affected by pregnancy, childbirth or related medical conditions have equal employment opportunities as persons not so affected." California Fair Employment and Housing Commission's Proposed Regulation, see App. 49.

28
See generally B. Brown, A. Freedman, H. Katz, & A. Price, Women's Rights and the Law 209-210 (1977). In the constitutional context, we have invalidated on equal protection grounds statutes designed "to exclude or 'protect' members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior." Mississippi University for Women v. Hogan, 458 U.S. 718, 725, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982).

29
Petitioners assert that even if § 12945(b)(2) does not require employers to treat pregnant employees differently from other disabled employees, it permits employers to do so because it does not specifically prohibit different treatment. Of course, since the PDA does not itself prohibit different treatment, it certainly does not require the States to do so. Moreover, if we were to interpret the term "permit" as expansively as petitioners suggest, the State would be required to incorporate every prohibition contained in Title VII into its state law, since it would otherwise be held to "permit" any employer action it did not expressly prohibit. We conclude that "permit" in § 708 must be interpreted to pre-empt only those state laws that expressly sanction a practice unlawful under Title VII; the term does not pre-empt state laws that are silent on the practice.

30
Indeed, Congress and the California Legislature were each aware in general terms of the regulatory scheme adopted by the other when they enacted their legislation. California recognized that many of its provisions would be pre-empted by the PDA and, accordingly, exempted employers covered by Title VII from all portions of the statute except those guaranteeing unpaid leave and reinstatement to pregnant workers. Congress was aware that some state laws mandated certain benefits for pregnant workers, but did not indicate that they would be pre-empted by federal law. See supra, at 287-288.

31
We recognize that, in cases where a state statute is otherwise invalid, the Court must look to the intent of the state legislature to determine whether to extend benefits or nullify the statute. By arguing that extension would be inappropriate in this case, however, post, at 302-303, and citing this as a basis for pre-emption, the dissent simply ignores the prerequisite of invalidity.

32
Because we conclude that in enacting the PDA Congress did not intend to prohibit all favorable treatment of pregnancy, we need not decide and therefore do not address the question whether § 12945(b)(2) could be upheld as a legislative response to leave policies that have a disparate impact on pregnant workers.

1
Because I agree with the Court that the California statute does not conflict with the purposes of the PDA, and does not purport to "require or permit" action inconsistent with the PDA, I do not reach the question whether § 1104 of the Civil Rights Act of 1964, 42 U.S.C. § 2000h-4, is applicable to Title VII, or whether, as Justice SCALIA suggests, § 708, 42 U.S.C. § 2000e-7, is the only provision governing Title VII's pre-emptive scope. Even if § 1104 applies, the California statute would not be preempted in this case. Since Part III-A of Justice MARSHALL's opinion does not make clear whether it decides this issue, or whether it only assumes for the purposes of the decision that § 1104 applies, I do not join that section. I do, however, join the remainder of the Court's opinion.

The choice between disposing of the case through interpreting the preemption provisions of Title VII and Title XI as Justice SCALIA does, or through interpreting the substance of the PDA and thus obviating the need to decide the Title XI question, is a choice between two grounds of statutory construction. Neither approach is inherently narrower than the other. Given the value of having an opinion for the Court, I have therefore concluded that I should choose between the conflicting views of the PDA expressed by Justice MARSHALL and Justice WHITE, even though Justice SCALIA may be correct in arguing that this case could be decided without reaching that issue.

2
There is a striking similarity between the evidence about the enactment of Title VII that was available in Steelworkers v. Weber, and the evidence available regarding the enactment of the PDA. First, the plain language in both cases points to neutrality, see ante, at 284; 443 U.S., at 201, 99 S.Ct., at 2726, although, if anything, that language was even less equivocal in Weber than it is here. See ante, at 285. Second, in both cases the records are replete with indications that Congress' goal was to bar discrimination against the disadvantaged class or classes at issue. See ante, at 285-286; 443 U.S., at 201-204, 99 S.Ct., at 2726-2727. Third, in neither case was there persuasive evidence that Congress considered the ramifications of a rule mandating complete neutrality. See ante, at 204. 443 U.S., at 204, 99 S.Ct., at 2727. Finally, there were statements in the legislative histories of both provisions stressing that Congress did not intend to require preferential treatment, statements that undermine the conclusion that Congress indeed intended to prohibit such treatment. See ante, at 286; 443 U.S., at 204-206, 99 S.Ct., at 2727-2728.

3
I do not read the Court's opinion as holding that Title VII presents no limitations whatsoever on beneficial treatment of pregnancy. Although the opinion does make some mention of the "floor" but "not a ceiling" language employed by the Court of Appeals, see ante, at 285, the Court also points out that there are limitations on what an employer can do, even when affording "preferential" treatment to pregnancy. See ante, at 285, n. 17, 694. Indeed, the Court of Appeals also subjected California's statute to the test of "whether the policy furthers 'Title VII's prophylactic purpose of achieving "equality of employment opportunities." ' " 758 F.2d 390, 396 (1985) (quoting EEOC v. Puget Sound Log Scaling & Grading Bureau, 752 F.2d 1389, 1392 (CA9 1985) (in turn quoting Griggs v. Duke Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 852, 28 L.Ed.2d 158 (1971))).

4
The Court has not yet had occasion to explore the exact line of demarcation between permissible and impermissible preferential treatment under Title VII. The factors discussed in Weber are, in my view, merely exemplary, and do not necessarily define the outer limits of what a private employer or a State may do to in an attempt to effectuate the goals of Title VII.

5
See ante, at 693-694.

6
758 F.2d, at 396.

1
The same clear language preventing preferential treatment based on pregnancy forecloses respondents' argument that the California provision can be upheld as a legislative response to leave policies that have a disparate impact on pregnant workers. Whatever remedies Title VII would otherwise provide for victims of disparate impact, Congress expressly ordered pregnancy to be treated in the same manner as other disabilities.

2
S.Rep. No. 95-331, p. 4 (1977), Legislative History of the Pregnancy Discrimination Act of 1978 (Committee Print prepared for the Senate Committee on Labor and Human Resources 41), p. ---- (1980) (Leg.Hist.).

3
H.R.Rep. No. 95-948, p. 4 (1978), Leg.Hist. 150 (emphasis added), U.S.Code Cong. & Admin.News 1978, p. 4752. The same theme was also expressed repeatedly in the floor debates. Senator Williams, for example, the Chairman of the Senate Committee on Labor and Human Resources and a sponsor of the Senate bill, described the bill as follows in his introduction of the bill to the Senate:

"The central purpose of the bill is to require that women workers be treated equally with other employees on the basis of their ability or inability to work. The key to compliance in every case will be equality of treatment. In this way, the law will protect women from the full range of discriminatory practices which have adversely affected their status in the work force." 123 Cong.Rec. 29385 (1977), Leg.Hist. 62-63.

4
123 Cong.Rec. 29664 (1977), Leg.Hist. 135.

5
H.R.Rep. No. 95-948, supra, at 10-11, Leg.Hist. 156-157.

6
H.R.Rep. No. 95-948, supra, at 11, Leg.Hist. 157 (emphasis in original), U.S.Code Cong. & Admin.News 1978, p. 4759.

7
S.Rep. No. 95-331, at 3, Leg.Hist. 40; 123 Cong.Rec. 29648 (1977), Leg.Hist. 91.

8
123 Cong.Rec. 29654-29655 (1977), Leg.Hist. 108-110.

9
H.R.Rep. No. 95-948, at 4, Leg.Hist. 150, U.S.Code Cong. & Admin.News 1978, p. 4752.

10
S.Rep. No. 95-331, supra, at 4, Leg.Hist. 41.

11
123 Cong.Rec. 7541 (1977), Leg.Hist. 8 (remarks of Sen. Brooke) ("[T]he bill being introduced would not mandate compulsory disability coverage"); 123 Cong.Rec., at 8145, Leg.Hist. 19 (remarks of Sen. Bayh) ("Under the provisions of our legislation, only those companies which already voluntarily offer disability coverage would be affected"); 123 Cong.Rec., at 10582, Leg.Hist. 25 (remarks of Rep. Hawkins) ("[A]n employer who does not now provide disability benefits to his employees will not have to provide such benefits to women disabled due to pregnancy or childbirth"); 123 Cong.Rec., at 29386, Leg.Hist. 64 (remarks of Sen. Williams) ("[T]his legislation does not require that any employer begin to provide health insurance where it is not presently provided"); 123 Cong.Rec., at 29388, Leg.Hist. 71 (remarks of Sen. Kennedy) ("This amendment does not require all employers to provide disability insurance plans; it merely requires that employers who have disability plans for their employees treat pregnancy-related disabilities in the same fashion that all other temporary disabilities are treated with respect to benefits and leave policies"); 123 Cong.Rec., at 29663, Leg.Hist. 131 (remarks of Sen. Cranston) ("[S]ince the basic standard is comparability among employees, an employer who does not provide medical benefits at all, would not have to pay the medical costs of pregnancy or child birth"); 123 Cong.Rec., at 29663, Leg.Hist. 133 (remarks of Sen. Culver) ("The legislation before us today does not mandate compulsory disability coverage").

12
Section 12945(b)(2) does not require employers to treat pregnant employees better than other disabled employees; employers are free voluntarily to extend the disability leave to all employees. But if this is not a statute which "purports to . . . permit the doing of any act which would be an unlawful employment practice" under Title VII, I do not know what such a statute would look like. See, ante, at 290, n. 29.

Neither is § 12945(b)(2) saved by § 1104 of the Civil Rights Act since it is inconsistent with the equal-treatment purpose and provisions of Title VII.

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"Pregnant Persons" originates in SCOTUS opinions in 1977/198

Postby admin » Sun Jul 17, 2022 9:40 pm

(2)

Nashville Gas Co. v. Satty
Supreme Court
434 U.S. 136

Nashville Gas Co.
v.
Satty

No. 76-536.

Argued October 5, 1977

Decided December 6, 1977

Syllabus

Petitioner employer requires a pregnant employee to take leave of absence. While on such leave the employee receives no sick pay, such as is paid for nonoccupational disabilities other than pregnancy. She also loses all accumulated job seniority, such as is retained on leaves for other nonoccupational disabilities, with the result that although petitioner will attempt to provide her with temporary work on her return, she will be employed in a permanent position only if no currently employed employee also applies for the position. In respondent employee's action challenging those policies, the District Court held that they violated Title VII of the Civil Rights Act of 1964, and the Court of Appeals affirmed. Held:

1. Petitioner's policy of denying 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" because of their sex in violation of § 703(a)(2) of Title VII. Pp. 139-143.

(a) While petitioner's seniority policy is facially neutral in that both male and female employees retain accumulated seniority while on leave for nonoccupational disabilities other than pregnancy, whereas seniority is divested if the employee takes a leave for any other reason, including pregnancy, its discriminatory effect causes it to run afoul of § 703(a)(2). Pp. 140-141.

(b) Petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. While Title VII does not require that greater economic benefits be paid to one sex or the other because of their different roles, this does not allow § 703(a)(2) to be read so as to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different roles. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343, distinguished. P. 141-142.

(c) There is no proof of any business necessity justifying the adoption of the seniority policy with respect to pregnancy leave in this case. P. 143.

2. Petitioner's policy of not awarding sick-leave pay to pregnant employees is not a per se violation of Title VII, but the facial neutrality of the policy does not end the analysis if it can be shown that exclusion of pregnancy from the compensation conditions is a mere "pretex[t] designed to effect an invidious discrimination against the members of one sex or the other." Gilbert, supra, at 136, 97 S.Ct. at 408. Hence, absent any showing that the decisions below were based on a finding that there was a pretext, the case will be remanded to determine whether respondent preserved the right to proceed further on such theory. Pp. 143-146.

522 F.2d 850, affirmed in part, vacated in part, and remanded.

Charles K. Wray, Nashville, Tenn., for petitioner.

Robert W. Weismueller, Jr., Nashville, Tenn., for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

1
Petitioner requires pregnant employees to take a formal leave of absence. The employee does not receive sick pay while on pregnancy leave. She also loses all accumulated job seniority; as a result, while petitioner attempts to provide the employee with temporary work upon her return, she will be employed in a permanent job position only if no employee presently working for petitioner also applies for the position. The United States District Court for the Middle District of Tennessee held that these policies violate Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V). 384 F.Supp. 765 (1974). The Court of Appeals for the Sixth Circuit affirmed. 522 F.2d 850 (1975). We granted certiorari 429 U.S. 1071, 97 S.Ct. 806, 50 L.Ed.2d 788, to decide, in light of our opinion last Term in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), whether the lower courts properly applied Title VII to petitioner's policies respecting pregnancy.

2
Two separate policies are at issue in this case. The first is petitioner's practice of giving sick pay to employees disabled by reason of nonoccupational sickness or injury but not to those disabled by pregnancy. The second is petitioner's practice of denying accumulated seniority to female employees returning to work following disability caused by childbirth.1 We shall discuss them in reversed order.

3
* Petitioner requires an employee who is about to give birth to take a pregnancy leave of indeterminate length. Such an employee does not accumulate seniority while absent, but instead actually loses any job seniority accrued before the leave commenced. Petitioner will not hold the employee's job open for her awaiting her return from pregnancy leave. An employee who wishes to return to work from such leave will be placed in any open position for which she is qualified and for which no individual currently employed is bidding; before such time as a permanent position becomes available, the company attempts to find temporary work for the employee. If and when the employee acquires a permanent position, she regains previously accumulated seniority for purposes of pension, vacation, and the like, but does not regain it for the purpose of bidding on future job openings.

4
Respondent began work for petitioner on March 24, 1969, as a clerk in its Customer Accounting Department. She commenced maternity leave on December 29, 1972, and gave birth to her child on January 23, 1973. Seven weeks later she sought re-employment with petitioner. The position that she had previously held had been eliminated as a result of bona fide cutbacks in her department. Temporary employment was found for her at a lower salary than she had earned prior to taking leave. While holding this temporary employment, respondent unsuccessfully applied for three permanent positions with petitioner. Each position was awarded to another employee who had begun to work for petitioner before respondent had returned from leave; if respondent had been credited with the seniority that she had accumulated prior to leave, she would have been awarded any of the positions for which she applied. After the temporary assignment was completed, respondent requested, "due to lack of work and job openings," that petitioner change her status from maternity leave to termination in order that she could draw unemployment compensation.

5
We conclude that petitioner's policy of denying accumulated seniority to female employees returning from pregnancy leave violates § 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2) (1970 ed., Supp. V). That section declares it to be an unlawful employment practice for an employer to

6
"limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of such individual's . . . sex . . .."

7
On its face, petitioner's seniority policy appears to be neutral in its treatment of male and female employees.2 If an employee is forced to take a leave of absence from his or her job because of disease or any disability other than pregnancy, the employee, whether male or female, retains accumulated seniority and, indeed, continues to accrue seniority while on leave.3 If the employee takes a leave of absence for any other reason, including pregnancy, accumulated seniority is divested. Petitioner's decision not to treat pregnancy as a disease or disability for purposes of seniority retention is not on its face a discriminatory policy. "Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability." Gilbert, 429 U.S., at 136, 97 S.Ct., at 408.

8
We have recognized, however, that both intentional discrimination and policies neutral on their face but having a discriminatory effect may run afoul of § 703(a)(2). Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 854, 28 L.Ed.2d 158 (1971). It is beyond dispute that petitioner's policy of depriving employees returning from pregnancy leave of their accumulated seniority acts both to deprive them "of employment opportunities" and to "adversely affect [their] status as an employee." It is apparent from the previous recitation of the events which occurred following respondent's return from pregnancy leave that petitioner's policy denied her specific employment opportunities that she otherwise would have obtained. Even if she had ultimately been able to regain a permanent position with petitioner, she would have felt the effects of a lower seniority level, with its attendant relegation to less desirable and lower paying jobs, for the remainder of her career with petitioner.

9
In Gilbert, supra, there was no showing that General Electric's policy of compensating for all non-job-related disabilities except pregnancy favored men over women. No evidence was produced to suggest that men received more benefits from General Electric's disability insurance fund than did women; both men and women were subject generally to the disabilities covered and presumably drew similar amounts from the insurance fund. We therefore upheld the plan under Title VII.

10
"As there is no proof that the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer's disability-benefits plan is less than all-inclusive. For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, which results from the facially evenhanded inclusion of risks." 429 U.S., at 138-139, 97 S.Ct., at 409-410 (footnote omitted).

11
Here, by comparison, petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. The distinction between benefits and burdens is more than one of semantics. We held in Gilbert that § 703(a)(1) did not require that greater economic benefits be paid to one sex or the other "because of their differing roles in 'the scheme of human existence,' " 429 U.S., at 139, 97 S.Ct., at 410 n. 17. But that holding does not allow us to read § 703(a)(2) to permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.4 Recognition that petitioner's facially neutral seniority system does deprive women of employment opportunities because of their sex does not end the inquiry under § 703(a)(2) of Title VII. If a company's business necessitates the adoption of particular leave policies, Title VII does not prohibit the company from applying these policies to all leaves of absence, including pregnancy leaves; Title VII is not violated even though the policies may burden female employees. Griggs, supra, 401 U.S. at 431, 91 S.Ct., at 853; Dothard v. Rawlinson, 433 U.S. 321, 331-332 n. 14, 97 S.Ct. 2720, 2728 n. 14, 53 L.Ed.2d 786 (1977). But we agree with the District Court in this case that since there was no proof of any business necessity adduced with respect to the policies in question, that court was entitled to "assume no justification exists."5 384 F.Supp., at 771.

II

12
On the basis of the evidence presented to the District Court, petitioner's policy of not awarding sick-leave pay to pregnant employees is legally indistinguishable from the disability-insurance program upheld in Gilbert. As in Gilbert, petitioner compensates employees for limited periods of time during which the employee must miss work because of a non-job-related illness or disability. As in Gilbert, the compensation is not extended to pregnancy-related absences. We emphasized in Gilbert that exclusions of this kind are not per se violations of Title VII: "[A]n exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all." 429 U.S., at 136, 97 S.Ct., at 408. Only if a plaintiff through the presentation of other evidence can demonstrate that exclusion of pregnancy from the compensated conditions is a mere " 'pretex[t] designed to effect an invidious discrimination against the members of one sex or the other' " does Title VII apply. Ibid.

13
In Gilbert, evidence had been introduced indicating that women drew substantially greater sums than did men from General Electric's disability-insurance program, even though it excluded pregnancy. Id., at 130-131, nn. 9 and 10, 97 S.Ct., at 405-406. But our holding did not depend on this evidence. The District Court in Gilbert expressly declined to find "that the present actuarial value of the coverage was equal as between men and women." Id., at 131, 97 S.Ct., at 406. We upheld the disability program on the ground "that neither [was] there a finding, nor was there any evidence which would support a finding, that the financial benefits of the Plan 'worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program.' " Id., at 138, 97 S.Ct., at 409. When confronted by a facially neutral plan, whose only fault is underinclusiveness, the burden is on the plaintiff to show that the plan discriminates on the basis of sex in violation of Title VII. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).

14
We again need not decide whether, when confronted by a facially neutral plan, it is necessary to prove intent to establish a prima facie violation of § 703(a)(1). Cf. McDonnell Douglas Corp., supra, at 802-806, 93 S.Ct., at 1824-1826. Griggs, held that a violation of § 703(a)(2) can be established by proof of a discriminatory effect. But it is difficult to perceive how exclusion of pregnancy from a disability insurance plan or sick-leave compensation program "would deprive any individual of employment opportunities" or "otherwise adversely affect his status as an employee" in violation of § 703(a)(2). The direct effect of the exclusion is merely a loss of income for the period the employee is not at work; such an exclusion has no direct effect upon either employment opportunities or job status. Plaintiff's attack in Gilbert, supra, was brought under § 703(a)(1), which would appear to be the proper section of Title VII under which to analyze questions of sick-leave or disability payments.

15
Respondent failed to prove even a discriminatory effect with respect to petitioner's sick-leave plan. She candidly concedes in her brief before this Court that "petitioner's Sick Leave benefit plan is, in and of itself, for all intents and purposes, the same as the Weekly Sickness and Accident Insurance Plan examined in Gilbert" and that "if the exclusion of sick pay was the only manner in which respondent had been treated differently by petitioner, Gilbert would control." Brief for Respondent 10. Respondent, however, contends that because petitioner has violated Title VII by its policy respecting seniority following return from pregnancy leave, the sick-leave pay differentiation must also fall.

16
But this conclusion by no means follows from the premise. Respondent herself abandoned attacks on other aspects of petitioner's employment policies following rulings adverse to her by the District Court, a position scarcely consistent with her present one. We of course recognized both in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), and in Gilbert, that the facial neutrality of an employee benefit plan would not end analysis if it could be shown that " 'distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other . . . .' " Gilbert, 429 U.S., at 135, 97 S.Ct., at 407. Petitioner's refusal to allow pregnant employees to retain their accumulated seniority may be deemed relevant by the trier of fact in deciding whether petitioner's sick-leave plan was such a pretext. But it most certainly does not require such a finding by a trier of fact, to say nothing of the making of such a finding as an original matter by this Court.

17
The District Court sitting as a trier of fact made no such finding in this case, and we are not advised whether it was requested to or not. The decision of the Court of Appeals was not based on any such finding, but instead embodied generally the same line of reasoning as the Court of Appeals for the Fourth Circuit followed in its opinion in Gilbert v. General Electric Co., 519 F.2d 661 (1975). Since we rejected that line of reasoning in our opinion in Gilbert, the judgment of the Court of Appeals with respect to petitioner's sick-pay policies must be vacated. That court and the District Court are in a better position than we are to know whether respondent adequately preserved in those courts the right to proceed further in the District Court on the theory which we have just described.6

18
Affirmed in part, vacated in part, and remanded.

19
Mr. Justice POWELL, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, concurring in the result and concurring in part.

20
I join Part I of the opinion of the Court affirming the decision of the Court of Appeals that petitioner's policy denying accumulated seniority for job-bidding purposes to female employees returning from pregnancy leave violates Title VII.1

21
I also concur in the result in Part II, for the legal status under Title VII of petitioner's policy of denying accumulated sick-pay benefits to female employees while on pregnancy leave requires further factual development in light of General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). I write separately, however, because the Court appears to have constricted unnecessarily the scope of inquiry on remand by holding prematurely that respondent has failed to meet her burden of establishing a prima facie case that petitioner's sick-leave policy is discriminatory under Title VII. This case was tried in the District Court and reviewed in the Court of Appeals before our decision in Gilbert. The appellant court upheld her claim in accord with the then uniform view of the Courts of Appeals that any disability plan that treated pregnancy differently from other disabilities was per se violative of Title VII.2 Since respondent had no reason to make the showing of gender-based discrimination required by Gilbert, I would follow our usual practice of vacating the judgment below and remanding to permit the lower court to reconsider its sick-leave ruling in light of our intervening decision.

22
The issue is not simply one of burden of proof, which properly rests with the Title VII plaintiff. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), but of a "full opportunity for presentation of the relevant facts," Harris v. Nelson, 394 U.S. 286, 298, 89 S.Ct. 1082, 1098, 22 L.Ed.2d 281 (1969). Given the meandering course that Title VII adjudication has taken, final resolution of a lawsuit in this Court often has not been possible because the parties or the lower courts proceeded on what was ultimately an erroneous theory of the case. Where the mistaken theory is premised on the pre-existing understanding of the law, and where the record as constituted does not foreclose the arguments made necessary by our ruling, I would prefer to remand the controversy and permit the lower courts to pass on the new contentions in light of whatever additional evidence is deemed necessary.

23
For example, in Albemarle Paper Co. v. Moody, supra, the Court approved the Court of Appeals' conclusion that the employer had not proved the job relatedness of its testing program, but declined to permit immediate issuance of an injunction against all use of testing in the plant. The Court thought that a remand to the District Court was indicated in part because "[t]he appropriate standard of proof for job relatedness has not been clarified until today," and the plaintiffs "have not until today been specifically apprised of their opportunity to present evidence that even validated tests might be a 'pretext' for discrimination in light of alternative selection procedures available to the Company." 422 U.S., at 436, 95 S.Ct., at 2380.

24
Similarly, in International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), we found a remand for further factual development appropriate because the Government had employed an erroneous evidentiary approach that precluded satisfaction of its burden of identifying which nonapplicant employees were victims of the employer's unlawful discrimination and thus entitled to a retroactive seniority award. "While it may be true that many of the nonapplicant employees desired and would have applied for line-driver jobs but for their knowledge of the company's policy of discrimination, the Government must carry its burden of proof, with respect to each specific individual, at the remedial hearings to be conducted by the District Court on remand." Id., at 371, 97 S.Ct., at 1873.3 Cf. Brown v. Illinois, 422 U.S. 590, 613-616, 95 S.Ct. 2254, 2266-2268, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part).

25
Here, respondent has abandoned the theory that enabled her to prevail in the District Court and the Court of Appeals. Instead, she urges that her case is distinguishable from Gilbert :

26
"Respondent submits that because the exclusion of sick pay is only one of the many ways in which female employees who experience pregnancy are treated differently by petitioner, the holding in Gilbert is not controlling. Upon examination of the overall manner in which female employees who experience pregnancy are treated by petitioner, it becomes plain that petitioner's policies are much more pervasive than the mere underinclusiveness of the Sickness and Accident Insurance Plan in Gilbert." Brief for Respondent 10.

27
At least two distinguishing characteristics are identified by respondent. First, as found by the District Court, only pregnant woman are required to take a leave of absence and are denied sick-leave benefits while in all other cases of nonoccupational disability sick-leave benefits are available. 384 F.Supp. 765, 767, 771 (MD Tenn. 1974). Second, the sick-leave policy is necessarily related to petitioner's discriminatory denial of job-bidding seniority to pregnant woman on mandatory maternity leave, presumably because both policies flow from the premise that a female employee is no longer in active service when she becomes pregnant.

28
Although respondent's theory is not fully articulated, she presents a plausible contention, one not required to have been raised until Gilbert and not foreclosed by the stipulated evidence of record, see Gilbert, 429 U.S., at 130-131 n. 9 and 131 n. 10, 97 S.Ct., at 405 n. 9 and 406 n. 10, or the concurrent findings of the lower courts, see Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 270, 97 S.Ct. 555, 566, 50 L.Ed.2d 450 (1977). It is not inconceivable that on remand respondent will be able to show that the combined operation of petitioner's mandatory maternity-leave policy4 and denial of accumulated sick-pay benefits yielded significantly less net compensation for petitioner's female employees than for the class of male employees. A number of the former, but not the latter endured forced absence from work without sick pay or other compensation. The parties stipulated that between July 2, 1965, and August 27, 1974, petitioner had placed 12 employees on pregnancy leave, and that some of these employees were on leave for periods of two months or more. App. 33. It is possible that these women had not exhausted their sick-pay benefits at the time they were compelled to take maternity leave, and that the denial of sick pay for this period of absence resulted in a relative loss of net compensation for petitioner's female work force. Petitioner's male employees, on the other hand, are not subject to a mandatory leave policy, and are eligible to receive compensation in some form for any period of absence from work due to sickness or disability.

29
In short, I would not foreclose the possibility that the facts as developed on remand will support a finding that "the package is in fact worth more to men than to women." Gilbert, supra, 429 U.S., at 138, 97 S.Ct., at 409. If such a finding were made, I would view respondent's case as not barred by Gilbert.5 In that case, the Court related: "The District Court noted the evidence introduced during the trial, a good deal of it stipulated, concerning the relative cost to General Electric of providing benefits under the Plan to male and female employees, all of which indicated that, with pregnancy-related disabilities excluded, the cost of the Plan to General Electric per female employee was at least as high as, if not substantially higher than, the cost per male employee." 429 U.S., at 130, 97 S.Ct., at 405 (footnotes omitted). The District Court also "found that the inclusion of pregnancy-related disabilities within the scope of the Plan would 'increase G. E.'s [disability-benefits plan] costs by an amount which, though large, is at this time undeterminable.' 375 F.Supp., at 378." Id., at 131, 97 S.Ct., at 406. While the District Court declined to make an explicit finding that the actuarial value of the coverage was equal between men and women, it may have been referring simply to the quantum and specificity of proof necessary to establish a "business necessity" defense. See Gilbert v. General Electric Co., 375 F.Supp. 367, 382-383 (ED Va.1974). In any event, in Gilbert this Court viewed the evidence of record as precluding a prima facie showing of discrimination in "compensation" contrary to § 703(a)(1). "Whatever the ultimate probative value of the evidence introduced before the District Court on this subject . . ., at the very least it tended to illustrate that the selection of risks covered by the Plan did not operate, in fact, to discriminate against women." 429 U.S., at 137-138, 97 S.Ct., at 409. As the record had developed in Gilbert, there was no basis for a remand.

30
I do not view the record in this case as precluding a finding of discrimination in compensation within the principles enunciated in Gilbert.6 I would simply remand the sick-pay issue for further proceedings in light of our decision in that case.

31
Mr. Justice STEVENS, concurring in the judgment.

32
Petitioner enforces two policies that treat pregnant employees less favorably than other employees who incur a temporary disability. First, they are denied seniority benefits during their absence from work and thereafter; second, they are denied sick pay during their absence. The Court holds that the former policy is unlawful whereas the latter is lawful. I concur in the Court's judgment, but because I believe that its explanation of the legal distinction between the two policies may engender some confusion among those who must make compliance decisions on a day-to-day basis, I advance a separate, and rather pragmatic, basis for reconciling the two parts of the decision with each other and with General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343.

33
The general problem is to decide when a company policy which attaches a special burden to the risk of absenteeism caused by pregnancy is a prima facie violation of the statutory prohibition against sex discrimination. The answer "always," which I had thought quite plainly correct,1 is foreclosed by the Court's holding in Gilbert. The answer "never" would seem to be dictated by the Court's view that a discrimination against pregnancy is "not a gender-based discrimination at all."2 The Court has, however, made it clear that the correct answer is "sometimes." Even though a plan which frankly and unambiguously discriminates against pregnancy is "facially neutral," the Court will find it unlawful if it has a "discriminatory effect."3 The question, then, is how to identify this discriminatory effect.

34
Two possible answers are suggested by the Court. The Court seems to rely on (a) the difference between a benefit and a burden, and (b) the difference between § 703(a)(2) and § 703(a)(1). In my judgment, both of these differences are illusory.4 I agree with the Court that the effect of the respondent's seniority plan is significantly different from that of the General Electric disability plan in Gilbert, but I suggest that the difference may be described in this way: Although the Gilbert Court was unwilling to hold that discrimination against pregnancy as compared with other physical disabilities—is discrimination on account of sex, it may nevertheless be true that discrimination against pregnant or formerly pregnant employees—as compared with other employees—does constitute sex discrimination. This distinction may be pragmatically expressed in terms of whether the employer has a policy which adversely effects a woman beyond the term of her pregnancy leave.

35
Although the opinion in Gilbert characterizes as "facially neutral" a company policy which differentiates between an absence caused by pregnancy and an absence caused by illness, the factual context of Gilbert limits the reach of that broad characterization. Under the Court's reasoning, the disability plan in Gilbert did not discriminate against pregnant employees or formerly pregnant employees while they were working for the company. If an employee, whether pregnant or nonpregnant, contracted the measles, he or she would receive disability benefits; moreover, an employee returning from maternity leave would also receive those benefits. On the other hand, pregnancy, or an illness occurring while absent on maternity leave, was not covered.5 During that period of maternity leave, the pregnant woman was temporarily cut off from the benefits extended by the Company's plan. At all other times, the woman was treated the same as other employees in terms of her eligibility for the plan's benefits.

36
The Company's seniority plan in this case has a markedly different effect. In attempting to return to work, the formerly pregnant woman is deprived of all previously accumulated seniority. The policy affects both her ability to re-enter the work force, and her compensation when she does return.6 The Company argues that these effects are permissible because they flow from its initial decision to treat pregnancy as an unexcused absence. But this argument misconceives the scope of the protection afforded by Gilbert to such initial decisions. For the General Electric plan did not attach any consequences to the condition of pregnancy that extended beyond the period of maternity leave. Gilbert allowed the employer to treat pregnancy leave as a temporal gap in the full employment status of a woman. During that period, the employer may treat the employee in a manner consistent with the determination that pregnancy is not an illness.7 In this case, however, the Company's seniority policy has an adverse impact on the employee's status after pregnancy leave is terminated. The formerly pregnant person is permanently disadvantaged as compared to the rest of the work force. And since the persons adversely affected by this policy constitute an exclusively female class, the Company's plan has an obvious discriminatory effect.8

37
Under this analysis, it is clear that petitioner's seniority rule discriminating against formerly pregnant employees is invalid. It is equally clear that the denial of sick pay during maternity leave is consistent with the Gilbert rationale, since the Company was free to withhold those benefits during that period.9

38
As is evident from my dissent in Gilbert, I would prefer to decide this case on a simpler rationale. Since that preference is foreclosed by Gilbert, I concur in the Court's judgment on the understanding that as the law now stands, although some discrimination against pregnancy—as compared with other physical disabilities—is permissible, discrimination against pregnant or formerly pregnant employees is not.

1
Respondent appears to believe that the two policies are indissolubly linked together, and that if one is found to violate Title VII the other must likewise be found to do so. Respondent herself, however, has not taken this tack throughout the course of her lawsuit. In the District Court she attacked not only the two policies at issue before us, but in addition petitioner's requirement that she commence her pregnancy leave five weeks prior to the delivery of her child, the termination of her temporary employment allegedly as retaliation for her complaint regarding petitioner's employment policies, and the lower benefits paid for pregnancy as compared to hospitalization for other causes under a group life, health, and accident policy paid for partly by petitioner and partly by its employees. The District Court concluded that respondent had not proved any of these practices to be violative of Title VII, and respondent did not appeal from that determination. Petitioner appealed from the District Court's conclusion that the two company policies presently in issue violate Title VII.

2
The appearance of neutrality rests in part on petitioner's contention that its pregnancy leave policy is identical to the formal leave of absence granted to employees, male or female, in order that they may pursue additional education. However, petitioner's policy of denying accumulated seniority to employees returning from leaves of absence has not to date been applied outside of the pregnancy context. Since 1962, only two employees have requested formal leaves of absence to pursue a college degree; neither employee has returned to work at petitioner.

3
The District Court found that even "employees returning from long periods of absence due to non-job related injuries do not lose their seniority and in fact their seniority continues to accumulate while absent." 384 F.Supp. 765, 768 (1974). The record reveals that at least one employee was absent from work for 10 months due to a heart attack and yet returned to her previous job at the end of this period with full seniority dating back to her date of hire.

4
Our conclusion that petitioner's job seniority policies violate Title VII finds support in the regulations of the Equal Employment Opportunity Commission (EEOC). 1972 guidelines of the EEOC specify that "[w]ritten and unwritten employment policies and practices involving . . . the accrual of seniority . . . and reinstatement . . . 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) (1976). In Gilbert, we rejected another portion of this same guideline because it conflicted with prior, and thus more contemporaneous, interpretations of the EEOC, with interpretations of other federal agencies charged with executing legislation dealing with sex discrimination, and with the applicable legislative history of Title VII. We did not, however, set completely at naught the weight to be given the 1972 guideline. 429 U.S., at 143, 97 S.Ct., at 411. Cf. Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 855, 28 L.Ed.2d 158 (1971).

The portion of the 1972 guideline which prohibits the practice under attack here is fully consistent with past interpretations of Title VII by the EEOC. See, e. g., EEOC, First Annual Report, H.R.Doc.No. 86, 90th Cong., 1st Sess., 40 (1967); EEOC, First Annual Digest of Legal Interpretations, July 1965-July 1966, p. 21 (Opinion Letter GC 218-66 (June 23, 1966)); CCH EEOC Decisions (1973) ¶ 6084 n. 1 (Dec. 16, 1969); CCH EEOC Decisions (1973) ¶ 6184 (Dec. 4, 1970). Nor have we been pointed to any conflicting opinions of other federal agencies responsible for regulating in the field of sex discrimination. This portion of the 1972 guideline is therefore entitled to more weight than was the one considered in Gilbert. Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944).

5
Indeed, petitioner's policy of denying accumulated seniority to employees returning from pregnancy leave might easily conflict with its own economic and efficiency interests. In particular, as a result of petitioner's policy, inexperienced employees are favored over experienced employees; employees who have spent lengthy periods with petitioner and might be expected to be more loyal to the company are displaced by relatively new employees. Female employees may also be less motivated to perform efficiently in their jobs because of the greater difficulty of advancing through the firm.

6
Our Brother POWELL in his concurring opinion suggests that we also remand to allow respondent to develop a theory not articulated to us, viz., that petitioner's sick-leave plan is monetarily worth more to men than to women. He suggests that this expansive remand is required because at the time respondent formulated her case she "had no reason to make the showing of gender-based discrimination required by Gilbert." Post, at 148. Respondent's complaint was filed in the District Court on July 1, 1974; a pretrial order was entered by that court setting forth the plaintiff's theory and the defendant's theory on August 28, 1974; and the District Court's memorandum and order for judgment were filed on November 4 and November 20, 1974, respectively. The first of the Court of Appeals cases which our Brother POWELL refers to is Wetzel v. Liberty Mutual Ins. Co., 511 F.2d 199 (CA3), which was decided on February 11, 1975. See opinion of Mr. Justice BRENNAN, dissenting in General Electric Co. v. Gilbert, 429 U.S., at 146, 97 S.Ct., at 413. Not only at the time that respondent filed a complaint, but at the time the District Court rendered its decision, Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), had been very recently decided, and the most that can be said on respondent's behalf is that the question of whether the analysis of that case would be carried over to cognate sections of Title VII was an open one. Our opinion in Gilbert on this and other issues, of course, speaks for itself; we do not think it can rightly be characterized as so drastic a change in the law as it was understood to exist in 1974 as to enable respondent to raise or reopen issues on remand that she would not under settled principles be otherwise able to do. We assume that the Court of Appeals and the District Court will apply these latter principles in deciding what claims may be open to respondent on remand.

1
I would add, however, that petitioner's seniority policy, on its face, does not "appea[r] to be neutral in its treatment of male and female employees." Ante, at 140. As the District Court noted below, "only pregnant woman are required to take leave and thereby lose job bidding seniority and no leave is required in other non-work-related disabilities . . . ." 384 F.Supp. 765, 771 (MD Tenn.1974). This mandatory maternity leave is not "identical to the formal leave of absence granted to employees, male or female, in order that they may pursue additional education." Ante, at 140 n. 2.

2
See cases cited in General Electric Co. v. Gilbert, 429 U.S. 125, 147, 97 S.Ct. 401, 413, 50 L.Ed.2d 343 (1976) (Brennan, J., dissenting).

Gilbert held that the rationale articulated in Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), involving a challenge on equal protection grounds, also applied to a Title VII claim with respect to the treatment of pregnancy in benefit plans. See 429 U.S., at 133-136, 97 S.Ct., at 406-408. Since Geduldig itself was silent on the Title VII issue, the Courts of Appeals not unreasonably failed to anticipate the extent to which the Geduldig rationale would be deemed applicable in the statutory context. See Washington v. Davis, 426 U.S. 229, 246-248, 96 S.Ct. 2040, 2051-2052, 48 L.Ed.2d 597 (1976).

3
The Court also declined to "evaluated abstract claims concerning the equitable balance that should be struck between the statutory rights of victims and the contractual rights of nonvictim employees," preferring to lodge this task, in the first instance, with the trial court which would be best able to deal with the problem in light of the facts developed at the hearings on remand. 431 U.S., at 376, 97 S.Ct., at 1875.

4
The majority places some reliance on respondent's failure to appeal from the part of the District Court's ruling which found petitioner's mandatory leave policy to be lawful under Title VII. Ante, at 138 n. 1, and 145. For the reasons stated in the text, however, petitioner's maintenance of a mandatory maternity-leave policy, even if entirely lawful, may have a bearing on the question whether the sick-pay policy "is in fact worth more to men than to women," Gilbert, 429 U.S., at 138, 97 S.Ct., at 409.

5
Also, if the theory left open by the Court's remand is demonstrated, Gilbert will present no bar.

6
The Court's opinion at one point appears to read Gilbert as holding that a Title VII plaintiff in a § 703(a)(1) case must demonstrate that "exclusion of pregnancy from the compensated conditions is a mere 'pretex[t].' " Ante, at 144. Later in its opinion, the Court states that we need not decide "whether, when confronted by a facially neutral plan, it is necessary to prove intent to establish a prima facie violation of § 703(a)(1)." Ibid. As noted in n. 1, supra, I cannot assume that petitioner's seniority policy in this case is facially neutral. Moreover, although there may be some ambiguity in the language in Gilbert, see concurring opinions of Mr. Justice Stewart and Mr. Justice Blackmun, 429 U.S., at 146, 97 S.Ct., at 413, I viewed our decision in that case as grounded primarily on the emphasized fact that no discrimination in compensation as required by § 703(a)(1) had been shown. Indeed, a fair reading of the evidence in Gilbert demonstrated that the total compensation of women in terms of disability-benefit plans well may have exceeded that of men. I do not suggest that mathematical exactitude can or need be shown in every § 703(a)(1) case. But essential equality in compensation for comparable work is at the heart of § 703(a)(1). In my view, proof of discrimination in this respect would establish a prima facie violation.

1
"An analysis of the effect of a company's rules relating to absenteeism would be appropriate if those rules referred only to neutral criteria, such as whether an absence was voluntary or involuntary, or perhaps particularly costly. This case, however, does not involve rules of that kind.

"Rather, the rule at issue places the risk of absence caused by pregnancy in a class by itself. By definition, such a rule discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male.
The analysis is the same whether the rule relates to hiring, promotion, the acceptability of an excuse for absence, or an exclusion from a disability insurance plan." General Electric Co. v. Gilbert, 429 U.S. 125, 161-162, 97 S.Ct. 401, 421, 50 L.Ed.2d 343 (Stevens, J., dissenting).

2
In Gilbert, supra, at 136, 97 S.Ct., at 408, the Court held that "an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all." Consistently with that holding, the Court today states that a "decision not to treat pregnancy as a disease or disability for purposes of seniority retention is not on its face a discriminatory policy." Ante, at 140.

3
Ante, at 141; 429 U.S., at 146, 97 S.Ct., at 413 (Stewart, J., concurring); ibid. (Blackmun, J., concurring in part).

4
Differences between benefits and burdens cannot provide a meaningful test of discrimination since, by hypothesis, the favored class is always benefited and the disfavored class is equally burdened. The grant of seniority is a benefit which is not shared by the burdened class; conversely, the denial of sick pay is a burden which the benefited class need not bear.

The Court's second apparent ground of distinction is equally unsatisfactory. The Court suggests that its analysis of the seniority plan is different because that plan was attacked under § 703(a)(2) of Title VII, not § 703(a)(1). Again, I must confess that I do not understand the relevance of this distinction. It is true that § 703(a)(1) refers to "discrimination" and § 703(a)(2) does not. But the Court itself recognizes that this is not significant since a violation of § 703(a)(2) occurs when a facially neutral policy has a "discriminatory effect." Ante, at 141 (emphasis added). The Court also suggests that § 703(a)(1) may contain a requirement of intent not present in § 703(a)(2). Whatever the merits of that suggestion, it is apparent that it does not form the basis for any differentiation between the two subparagraphs of § 703 in this case, since the Court expressly refuses to decide the issue. Ante, at 144.

5
See Gilbert, 429 U.S., at 129 n. 4, 97 S.Ct., at 404. Although I have the greatest difficulty with the Court's holding in Gilbert that it was permissible to refuse coverage for an illness contracted during maternity leave, I suppose this aspect of Gilbert may be explained by the notion that any illness occurring at that time is treated as though it were attributable to pregnancy, and therefore is embraced within the area of permissible discrimination against pregnancy.

6
Ante, at 138-139.

7
These two limitations—that the effect of the employer's policy be limited to the period of the pregnancy leave and that it be consistent with the determination that pregnancy is not an illness—serve to focus the disparate effect of the policy on pregnancy rather than on pregnant or formerly pregnant employees. Obviously, policies which attach a burden to pregnancy also burden pregnant or formerly pregnant persons. This consequence is allowed by Gilbert, but only to the extent that the focus of the policy is, as indicated above, on the physical condition rather than the person.

8
This analysis is consistent with the approach taken by lower courts to post-Gilbert claims of pregnancy-based discrimination, which have recognized that Gilbert has "nothing to do with foreclosing employment opportunity." Cook v. Arentzen, 14 EPD ¶ 7544, p. 4702 (CA4 1977); MacLennan v. American Airlines, Inc., 440 F.Supp. 466 (Va. 1977) (addressing the question of when, if ever, an employer can require an employee to take pregnancy leave). This case does not pose the issue of when an employer may require an employee to take pregnancy leave. Ante, at 138 n. 1.

9
In his concurring opinion, Mr. Justice POWELL seems to suggest that even when the employer's disparate treatment of a pregnant employee is limited to the period of the pregnancy leave, it may still violate Title VII if the company's rule has a greater impact on one sex than another. Ante, at 151-152. If this analysis does not require an overruling of Gilbert it must be applied with great caution, since the laws of probability would invalidate an inordinate number of rules on such a theory. It is not clear to me what showing, beyond "mathematical exactitude," see ante, at 152 n. 6, is necessary before this Court will hold that a classification, which is by definition gender specific, discriminates on the basis of sex. Usually, statistical disparities aid a court in determining whether an apparently neutral classification is, in effect, gender or race specific. Here, of course, statistics would be unnecessary to prove that point. In all events, I agree with the Court that this issue is not presented to us in this case, and accordingly concur in the Court's determination of the proper scope of the remand.

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Re: WE'VE LOST "WOMAN"--J.K. Rowling Writes on Sex and Gende

Postby admin » Tue Jul 19, 2022 9:20 pm

Librarian's Comment: Rowling's position on women's rights is rational and affirmative. She sees how women and girls are oppressed world-wide under law, in relationships, in the marketplace for employment, in human trafficking rings, and in the wholesale appropriation of their identity as alluring, sexual toys, subservient mothers, and discarded crones. These are not male problems, and the only help women need from men to address them is honest recognition of the fact that all men benefit from the oppression of all women. When men decide to "transition" into women, they do not take up any of these disabilities that afflict women in general, and they do not become useful allies in combatting this world-wide evil of female oppression. Instead, they seek to expand the scope of their masculine privilege to include the cultural misappropriation of those beautiful aspects of womanhood that are aggressively marketed as the traits of the sex -- charm, fashion, gentleness, and aesthetic beauty. Ironically, few trans men can actually reflect these delicate qualities faithfully, and their male bone structure, baritone voices, and stereotyped male characteristics shine through and spoil even the most earnest attempts to fake "female." We do not hear trans activists speaking out against the trafficking of women and children, their imprisonment in arranged marriages from childhood, their educational deprivation, and the myriad of other forms of subjugation to which they are subjected worldwide. Instead, we hear the endless self-concerned whine of privileged men who cannot obtain every last little advantage that they crave. Rowling is merely trying to preserve a meaningful distinction that you would have thought nature made perfectly clear. The pressure on outspoken women like Rowling to shut up about crimes against women and let trans men ape women for their own selfish purposes is merely the latest patriarchal move to undercut feminism at the root. If there are no women, we do not need feminism. As if men deciding to acquire one more privilege, the privilege of pretending to be women, by that arrogant act had turned all humanity into a single family where none of us suffer oppression.
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Amy Goodman & Democracy Now Major Offender Against "Woman"

Postby admin » Wed Jul 27, 2022 5:55 pm

Democracy Now -- Time to Grow a Pair -- Tits or Balls, You Choose.
by Altruistic World Online Library Librarian
7/27/22

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Protecting pregnant people seeking abortions and their healthcare providers from anti-abortion extremists, whether they are lurking outside clinics or doctors’ homes, or inside state legislatures or the U.S. Congress, must be a priority for us all.

-- In Post-Roe America, A Grave Miscarriage of Justice Proliferates, by Amy Goodman & Denis Moynihan


Librarian's Comment: From Woke to Joke -- Democracy Now has completed the transition. What does a progressive do when their favorite news outlet decides to get a new do by setting its hair on fire and putting it out with a hammer? Strongly identified with Amy Goodman who, thank Goddess, still appears to be straight, Democracy Now has turned the corner from far left progressive news outlet to a platform for reporters of ambiguous sex. Of course, according to the new lexicon approved by extremist apparatchiks, even to use the word "sex" instead of "gender" is seen to be a political felony. Democracy Now will not stand accused or convicted of any such crime, as they are leading the charge to conform with the dictional dictates of the trans mob. Apparently, unaware that they have exited the gravity hole of sanity and are now headed for earth orbit in an apparent search to recover the remains of Major Tom, they appear to have lost the thread, leaving behind a bewildered audience that once thought they were the apex of news freedom.



Now it's time to leave the capsule if you dare
This is Major Tom to Ground Control
I'm stepping through the door
And I'm floating in a most peculiar way
And the stars look very different today...
Though I'm past one hundred thousand miles
I'm feeling very still
And I think my spaceship knows which way to go
Tell my wife I love her very much
She knows...
Here am I floating 'round my tin can
Far above the moon
Planet Earth is blue
And there's nothing I can do


There is such a thing as choosing the public face you want to present to the world so that you will not alienate your audience before you open your mouth, but Democracy Now has thrown out the rational rule book in pursuit of tawdry conceptual conformity. Now, you must steel yourself for the onslaught of curious faces speaking in lilting tones about not just their own affairs, but those of the world. The message is confused when the messenger appears to have an agenda that is all about their own identity. It is impossible to get a clear view of the world through a glass that is distorted by the unrelenting desire to make a single over-arching point -- that sex determined at birth is an outdated notion that must be supplanted by a regime of gender choice. Leave aside that this battle is of little importance to those who are not involved in the personal skirmishes with society that arise from trying to be something other than what nature made you. The confused political philosophy engendered by developmental neuroses makes a poor foundation for a political platform. We can only hope that like so many would-be transitioners, Democracy Now will come out on the other side, and decide to be what it was born to be.
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Re: WE'VE LOST "WOMAN"--J.K. Rowling Writes on Sex and Gende

Postby admin » Wed Jul 27, 2022 6:42 pm

There is such a thing as choosing the public face you want to present to the world so that you will not alienate your audience before you open your mouth, but Democracy Now has thrown out the rational rule book in pursuit of tawdry conceptual conformity. -- Democracy Now -- Time to Grow a Pair -- Tits or Balls, You Choose, by Altruistic World Online Library Librarian


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For example, do you want this be the face of your political party? ....

Image
Or this?
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Re: WE'VE LOST "WOMAN"--J.K. Rowling Writes on Sex and Gende

Postby admin » Thu Jul 28, 2022 1:41 am

Going for the goofy-gusto.

Public health experts are warning abortion bans will likely lead to more pregnancy-related deaths, with Black women and people disproportionately impacted.

The United States already has the highest maternal mortality rate of all wealthy nations. According to the Centers for Disease Control, Black women and people are three times more likely to die than white women and people during or after a pregnancy, due to racism and bias at hospitals and clinics, and chronic underlying conditions caused by inequity in the healthcare access.

-- “Aftershock”: Film Explores Disproportionate Black Maternal Mortality in U.S., Could Worsen After Roe, by Amy Goodman, Democracy Now
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