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July 7, 1972


The opinion of the court was delivered by: McLAREN, District Judge.


Plaintiff Bravo filed this action on April 18, 1972 on behalf of herself and all other teachers similarly situated. The complaint charges the Board of Education of the City of Chicago (hereinafter "the Board") and other named defendants with discrimination against pregnant school teachers in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Equal Protection clause of the Fourteenth Amendment to the United States Constitution; Article I, § 18 of the Illinois Constitution; S.H.A.; and § 853(a) of the Illinois Fair Employment Practices Act, Ill.Rev.Stat. ch. 48, § 853(a). This Court has jurisdiction under 28 U.S.C. § 1343(3), (4).

On April 27, 1972 an evidentiary hearing was had on plaintiff's motion for a preliminary injunction. Because all of plaintiff's legal arguments in support of her motion have been directed to the equal protection claim, this analysis of the merits of her motion will be restricted to that issue. The following constitutes this Court's findings of fact and conclusions of law for the purpose of the motion for a preliminary injunction.

Plaintiff has been a certified teacher for the Board since 1964. Until March 30, 1972, she taught English at Chicago Vocational High School (hereinafter "Vocational"). At the time of the hearing, plaintiff was pregnant and was expected to deliver on or about June 22, 1972. After consulting with her personal physician, she decided to apply for maternity leave from her position at Vocational effective May 12, 1972. At the direction of her principal, plaintiff instead applied to the Board for maternity leave beginning April 12. In a letter dated March 28 the Board advised Mrs. Bravo that she had violated § 4-37 of its rules and that her last working day would be March 30. She was later informed that she could not return to teaching until September 30, 1972.

Plaintiff alleges that she and others similarly situated are denied equal protection under several provisions of the Board's maternity leave policy. To be entitled to a preliminary injunction against § 4-37 or specific parts of it, plaintiff has the burden of showing: (1) that there is a reasonable likelihood of success on the merits; (2) that she and her class will suffer irreparable injury if it is not granted; and (3) that the balance of hardships and conveniences to each side weighs in their favor. Midland-Ross Corp. v. Sunbeam Equip. Corp., 316 F. Supp. 171, 173 (W.D.Pa.), aff'd, 435 F.2d 159 (3d Cir. 1970).

Several recent cases have dealt with the validity of mandatory maternity leave rules. In Cohen v. Chesterfield County School Bd., 326 F. Supp. 1159 (E.D.Va. 1971), it was held that such a rule violated the Equal Protection clause because the Board there had shown no "rational basis" for treating pregnancy any differently than any other medical condition. Id. at 1160-61. In LaFleur v. Cleveland Bd. of Educ., 326 F. Supp. 1208 (N.D.Ohio 1971), the court upheld a similar rule, terming it "entirely reasonable." Id. at 1214.

In Schattman v. Texas Employment Comm., 459 F.2d 32 (5th Cir., Mar. 1, 1972), the court, after reversing the district court's finding of jurisdiction, went on in dictum to discuss the merits of an equal protection challenge to a mandatory maternity leave policy. Apparently on the basis of the administrative difficulties involved in making individual assessments of the abilities of each pregnant worker and some medical testimony to the effect that women in their later months of pregnancy would be less effective in their jobs, the Fifth Circuit decided that the equal protection claim was without merit.

In Williams v. San Francisco Unified School Dist., 340 F. Supp. 438 (N.D.Cal., 1972), a preliminary injunction was granted against the enforcement of a mandatory leave policy for pregnant teachers. Even though the leave period was two months shorter than that complained of here, the court distinguished LaFleur and Schattman and relied on Cohen.

Before the evidence now in the record can be considered, the proper standard for testing the Board's maternity leave policy must be determined. Under the traditional or restrained review test, a person assailing a legislative or administrative classification on equal protection grounds has the burden of showing that it has no rational and substantial relationship to a valid objective of the rule-making body. Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Morey v. Doud, 354 U.S. 457, 464, 77 S.Ct. 1344, 1 L.Ed.2d 1485 (1947). But if the classification is based upon a "suspect" criterion or affects a "fundamental" right, the burden shifts to the rule-maker to show that it is the least drastic method of promoting a "compelling" interest. Shapiro v. Thompson, 394 U.S. 618, 637-38, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Comment, Are Sex-Based Classifications Constitutionally Suspect? 66 Nw.U.L.Rev. 481, 493 (1971).

LaFleur, supra, dealt specifically with the question of the standard to be applied to maternity leave policies. The court there rejected the stricter standard because "[t]he rights in this case weigh most heavily with the students . . ." 326 F. Supp. at 1213. This approach does not recommend itself to this Court. Under the analysis suggested by the Supreme Court cases cited above, the interests urged in support of a classification should be considered only after making the initial decision as to whether a suspect criterion or fundamental right is present.

The Court disagrees with the plaintiff's assertion that § 4-37's classifications constitute sex discrimination and need not, therefore, pass on the difficult question of whether sex is an inherently suspect criterion. Plaintiff is actually criticizing two distinctions drawn by the Board's maternity leave policy. The first distinction challenged is that made by the mandatory leave policy as between teachers who are required to stop working during their sixth and subsequent months of pregnancy and for two months thereafter, and all other teachers. The second distinction drawn into question is that made between teachers on maternity leave and those absent from duty on other types of leaves. These obviously do not involve criteria that can be characterized as suspect. See Michelman, Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv.L.Rev. 7, 19-20 (1969). The court in Williams, supra, applied the stricter standard because the plaintiff there asserted "the basic right to employment." 340 F. Supp. at 443. There is some support for the theory that the right to employment is fundamental or basic. Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 60 L.Ed. 131 (1915); Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 485 P.2d 529, 539 (1971), although the point received no discussion in Williams. No decisions in this Circuit have so held, however, and such a decision appears to be foreclosed by dicta in Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), where the Court stated that the traditional restrained review standard "has consistently been applied to state legislation restricting the availability of employment opportunities."

This Court concludes that the traditional standard is applicable here, with the burden upon the plaintiff to show that the classifications in the Board's maternity leave policy are arbitrary and unreasonable and not based upon grounds of difference having a fair and substantial relation to a legitimate object of the Board. Reed, supra.

The Board has asserted several grounds for § 4-37's mandatory period of leave. Its first basis is that fixed leave dates for a pregnant teacher before and after delivery facilitate an orderly and standardized procedure by avoiding the administrative difficulties inherent in individual decisions as to the safety and abilities of individual teachers. This is not an adequate basis for a classification challenged on equal protection grounds. Reed, 404 U.S. at 76-77, 92 S.Ct. 251; cf. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 1215, 31 L.Ed. 2d 551 (1972).

The Board also asserts that the leave period is reasonably related to its objective of protecting pregnant teachers and their unborn babies from the assaults, accidents, diseases and physical demands which teachers must normally face. Mrs. Bravo's attending obstetrician — a man of considerable experience in the field — testified that there is no medical reason for her or any other healthy pregnant teacher to stop working after the fourth month of pregnancy. He also testified that there is no greater probability of pregnant women being injured than other women, and that none of the more common complications to pregnancy can be caused by trauma. He further testified that neither standing for extended periods, nor running down stairs or moving quickly, physical activities that could be expected of a teacher, are likely to induce premature labor. The Medical Director of the Chicago Public Schools testified that the primary risk to the fetus of contracting German measles is in the first ten to fourteen weeks of pregnancy, with an additional risk of general infection in the fifth and subsequent months. He further testified that there is no accurate data available regarding the incidence of measles or other communicable diseases among pregnant ...

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