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
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 teachers or
school children. The assistant superintendent of the Board in
charge of personnel, Mr. Robinson, admitted that the decision
that pregnant teachers require more protection from assaults is
not based upon any medical or statistical evidence, but only
upon the feeling that assaults are dangerous to any woman.
In contrast to the Board's asserted objective of protecting
pregnant teachers and their babies from injury in the schools
stands the exceptions to the mandatory maternity leave rule
and the State's policy on pregnant students. Section 4-37(g)
of the Board's rules clearly states that teachers on maternity
leave are permitted to serve as day-to-day substitutes. Mrs.
Bravo testified that she knows of two cases where pregnant
teachers were allowed to continue in their normal positions
quite late in their pregnancies. Also, an opinion letter from
the State Superintendent of Public Education, which the Board
is now considering, has come to the Court's attention.
Although the letter discusses the legal and not the medical
considerations, in urging school boards not to use pregnancy
as a per se criterion for the exclusion of students, it
necessarily presupposes that the medical dangers to pregnant
students do not justify their automatic exclusion. These
exceptions to the mandatory leave period and the State's policy
on pregnant students raise a question as to whether the Board
itself considers its assumptions as to the dangers to pregnant
teachers to be valid.
During the hearing, it appeared that one of the Board's
concerns was with the continuity of the children's education.
Mr. Robinson admitted that the rigid timetable for maternity
leaves now in effect actually contributes to discontinuity, as
in Mrs. Bravo's case, where she was forced to leave her
position just before the end of a grading period and will not
be able to return until some three weeks after classes have
resumed in the fall.
The Board has not argued that § 4-37 is based upon any effect
upon children from the presence of a pregnant teacher.
From the foregoing evidence, this Court concludes that
plaintiff has shown a reasonable probability that she will
ultimately succeed in proving that the period fixed for
maternity leave bears no rational and substantial relationship
to any valid purpose of the Board.
Plaintiff's second criticism of the maternity leave policy
concerns the difference in treatment accorded to those on
maternity leave and those on other types of leave. Plaintiff
claims that pregnancy
should be treated like any other medical condition under the
rules for leaves for illness. The following are examples of
the differences in treatment under the present rules. Upon the
granting of maternity leave, the pregnant teacher's position
is declared vacant. The position of a teacher who is on leave
because of illness is not declared vacant unless the absence
exceeds five school months. When a teacher returns to her
school from an extended illness leave, her name is placed at
the top of the school's transfer list to fill any vacancies.
The teacher who goes on maternity leave can only return to a
position at her former school if there are no qualified
teachers ahead of her on the transfer list. Mr. Robinson
indicated that he thinks that this disparity in employment
opportunities is unjust and offered no reason to support it.
Teachers on illness leave are allowed to draw pay for their
accrued "sick pay" days; pregnant teachers are not. Pregnant
teachers get no seniority for the period of their leave; those
on leave for illness do. The Board has offered no reason for
these differences in benefits between teachers who are ill and
those who are pregnant. Plaintiff has met her burden of
showing a reasonable probability of success on her claim that
there is no rational and substantial basis for the Board's
distinction between pregnancy and other medical conditions for
the purposes of determining employment benefits.
Plaintiff has sufficiently established that she and her
class have been and are now being denied equal protection of
the laws to show that their injury is irreparable. Henry v.
Greenville Airport Comm'n, 284 F.2d 631, 633 (4th Cir. 1960);
Williams v. School Dist., supra; Canty v. Bd. of Educ., City of
New York, 312 F. Supp. 254, 256 (S.D.N.Y. 1970); Brass v.
Hoberman, 295 F. Supp. 358, 361 (S.D.N.Y. 1968).
The Board already has the administrative machinery to deal
with leaves granted due to illness. Because of the similarity
of the practical consequences of pregnancy and those of
illnesses which require that a teacher be absent from her
work, it appears that these administrative procedures can
readily be adapted to apply to pregnancy cases as well. On the
present record, plaintiff has met her burden of demonstrating
that the balance of hardships weighs in favor of her and her
class. Williams, 340 F. Supp. at 450.
An order will issue directing the Board to cease enforcing
§ 4-37(a), (e), and (f) of its rules. For purposes of sick pay,
seniority, and placement of returning teachers on transfer
lists, the Board will be further directed to treat maternity
leaves as leaves due to illness under § 4-33, and to permit
teachers to continue teaching before delivery and to resume
teaching after delivery, so long as they present evidence of
approval of their attending physicians and their principals to
the defendant General Superintendent of Schools at such
reasonable intervals as he, or anyone designated by him, may
Counsel for plaintiffs are directed to submit an appropriate
draft order, on notice, within ten (10) days of the date of
this Opinion. At that time, counsel for plaintiffs and counsel
for defendants shall submit briefs on the issues of the
effective date of this order and the identity of the class to
which it will apply. Within thirty (30) days after the entry
of such order, the Board shall cause to be prepared and
tendered to this Court such affidavits as may be necessary to
demonstrate compliance therewith.
It is so ordered.
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