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COMMUNICATIONS, ETC. v. ILLINOIS BELL TEL. CO.

February 29, 1980

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, ROSE MARIE BYARD, JEWEL WHITE, DORA WHITE, SUSAN BURNS, SARA HARROUN, MARGARET LUDWIG AND LYNN ISAACSON, PLAINTIFFS,
v.
ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT. SUSAN HARDEN, JOAN DEHLER, SUSAN DZIOBA, KATHLEEN LUSINGER, ROSALYN LISCO, LORETTA JACKSON, CATHERINE FRY, CARMEN HODGE, THERESA SCHAUB, DOLORES VESSELS, KAREN BURNS AND REBECCA J. WIMBERLY, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS, V. ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT AND PARTY PLAINTIFF, V. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, THIRD PARTY DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiffs in 73 C 959, Communications Workers of America, AFL-CIO, and seven female employees ("CWA"), have brought this action against defendant Illinois Bell Telephone Company ("Illinois Bell") attacking certain employment practices as sexually discriminatory under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. CWA's motion to certify a class under Fed.R.Civ.P. 23 was denied by this Court on June 20, 1974. Illinois Bell is also the named defendant in 74 C 1505, an action brought by Susan Harden and other named individual female employees of Illinois Bell ("Harden") alleging identical violations of Title VII. The Harden motion for class certification was granted under Fed.R.Civ.P. 23(b)(2) and denied under Fed.R.Civ.P. 23(b)(3) by an order of January 3, 1975. These two cases were consolidated for all purposes on July 31, 1974.

Plaintiffs allege that Illinois Bell has violated Title VII's ban on sex discrimination by failing to treat equally female employees temporarily disabled due to pregnancy and other employees disabled by reason of sickness or accident. In issue are Illinois Bell's policies regarding wage continuance, basic medical insurance premiums, loss of seniority, reinstatement and job status, and duration of maternity leave during the period of pregnancy disability. Plaintiffs seek (a) a declaratory judgment as to the rights of the parties and the class, (b) an injunction restraining and enjoining Illinois Bell from discriminating on the basis of sex with respect to disability and pregnancy leaves, and (c) back pay and other appropriate relief.*fn1 Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1343(4), 28 U.S.C. § 2201 and 2202, and 42 U.S.C. § 2000e-5(f). Presently pending before the Court are cross-motions for summary judgment. Fed.R.Civ.P. 56. Inasmuch as there are no issues of material fact in dispute, it is appropriate for the Court to determine at this point which party is entitled to judgment as a matter of law.*fn2

A. Basic Medical Insurance Premiums

It is Illinois Bell's practice to pay basic medical insurance premiums (BMI) for employees on disability leave, but to discontinue such payments for employees on maternity leave. The women adversely affected by this policy may retain disability coverage, however, by personally paying BMI premiums.

Based on the Supreme Court's decision in General Electric Company v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), defendant Illinois Bell is entitled to summary judgment with respect to this policy. In Gilbert, defendant General Electric provided a disability plan for non-occupational sickness and accident benefits which excluded pregnancy disability from its coverage. The plan was upheld in spite of a Title VII sex discrimination charge. The Court found that there could be no violation of § 703(a)(1) of the 1964 Civil Rights Act (42 U.S.C. § 2000e-2(a)(1)) absent a showing of gender-based discrimination of gender-based effect. Neither was present in that case, since General Electric's

  "package" going to relevant identifiable groups we
  are presently concerned with — General Electric's male
  and female employees — covers exactly the same
  categories or risk, and is facially
  non-discriminatory in the sense that "[t]here is no
  risk from which men are protected and women are not.
  Likewise, there is no risk from which women are
  protected and men are not." (Citations omitted). 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.

Gilbert, 429 U.S. at 138-139, 97 S.Ct. at 409.

Plaintiffs have agreed that the payment of medical insurance premiums by the employer is the type of benefit which is "nothing more than an insurance package, which covers some risks, but excludes others," and thus falls within the purview of Gilbert. 429 U.S. at 138, 97 S.Ct. at 409. The Equal Employment Opportunity Commission (EEOC) in its amicus curiae brief, however, argues that the failure to pay these premiums for employees on maternity leave constitutes sex discrimination under the holding of Nashville Gas Company v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977). Nashville, in holding that defendant's policy of denying accumulated seniority to female employees returning to work after maternity leave violated Title VII, distinguished Gilbert on the grounds that

  [h]ere, 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 different roles in the scheme of existence."
  [Citations omitted]. 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.

Nashville, 434 U.S. at 142, 98 S.Ct. at 350. The EEOC urges that Gilbert, read in light of Nashville, stands only for the narrow proposition that only pregnancy-related benefits may be denied without running afoul of Title VII. Thus, the EEOC argues that Illinois Bell's denial of fringe benefits unrelated to pregnancy is not sanctioned by Gilbert.

As is clear from the above-cited passage of Nashville, however, the Court's analysis did not focus on whether the denial is related to pregnancy; rather, the relevant inquiry is whether defendant's policy denies employees on maternity leave a benefit or imposes a burden on them. Put another way, the question is whether the employer's policy "adversely affects a woman beyond the term of her pregnancy leave." Nashville, 434 U.S. at 155, 98 S.Ct. at 358 (Stevens, J., concurring). Viewed in this light, the ruling in Nashville does not require that Illinois Bell's BMI policy be stricken as violative of Title VII. Indeed, this issue in substance is indistinguishable from that presented in Gilbert. Discontinuation of BMI payments, like discontinuation of wage payments, constitutes a denial of benefits to employees on maternity leave. This policy in no way burdens these employees' future employment opportunities at Illinois Bell. Thus, the Court finds that the discontinuation of BMI payments is a permissible policy under Gilbert and Nashville.

B. Reinstatement

Under Illinois Bell's disability leave policy, a returning employee is entitled to automatic reinstatement to the same job with the same work schedule. Employees who take maternity leave, on the other hand, are not assured of regaining their former positions. Rather, these employees are reinstated to the same jobs only if they are open when the employees return from leave; if at such time the job is taken, Illinois Bell seeks to place the returning employees in a different job with the same pay. There is no guarantee that an employee returning from pregnancy leave ...


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