The opinion of the court was delivered by: JAMES H. ALESIA
MEMORANDUM OPINION AND ORDER
Plaintiff, Equal Employment Opportunity Commission ("EEOC"), brings this action against Elgin Teachers Association ("ETA") for violation of Title VII, 42 U.S.C. §§ 2000e et seq.
The complaint alleges that ETA violated Section 703 of Title VII by entering into and maintaining collective bargaining agreements which treat employees who are disabled as a result of pregnancy less favorably than those who are disabled for other reasons.
On March 9, 1989, EEOC filed a motion for partial summary judgment on the issue of liability pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Thereafter, on April 10, 1989, ETA filed a cross-motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This Court referred the motions to Magistrate Judge Gottschall for a Report and Recommendation. Subsequently, the case was reassigned to Magistrate Judge Rosemond. On February 28, 1991, Magistrate Judge Rosemond issued his report, recommending that this Court grant EEOC's motion for summary judgment on the issue of liability and deny ETA's cross-motion for summary judgment. Subsequently, both EEOC and ETA filed objections to the Magistrate Judge's report.
This Court has reviewed EEOC's objections, ETA's response, ETA's objections and EEOC's response. In addition, this Court has considered ETA's supplemental authority of Maganuco v. Leyden Community High School Dist. 212, 939 F.2d 440 (7th Cir. 1991), and EEOC v. City Colleges of Chicago, No. 90-3162, slip op. (7th Cir. Sept. 16, 1991), as well as EEOC's responses to these citations. For the reasons set forth in this opinion, we adopt in part and reject in part the Magistrate Judge's Report and Recommendation.
1. The Per Se Discrimination Claim
The Magistrate Judge concluded that this circuit recognizes only two viable theories of employment discrimination: disparate impact and disparate treatment. (Report and Recommendation, p. 12). EEOC disagrees and contends that distinctions based on pregnancy alone may amount to a per se violation of Title VII. (Plaintiff's Objections, p. 3). We agree with EEOC that a facially discriminatory policy may constitute per se or explicit sex discrimination. Such a finding would in turn obligate the defendant to meet a higher evidentiary burden.
In reaching this conclusion, we are persuaded by EEOC's citation to Int'l Union, United Auto., Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc., U.S. , 111 S. Ct. 1196 (1991). In Johnson Controls, the Court held that the company's fetal-protection policy was explicit sex discrimination forbidden under Title VII unless the company could establish that sex was a "bona fide occupational qualification." 111 S. Ct. at 1204. The Court's opinion implies that explicit facial discrimination constitutes a direct form of disparate treatment which requires the employer to establish a bona fide occupational qualification, as opposed to an indirect theory of disparate treatment which requires the employer to articulate a legitimate, nondiscriminatory reason for its action. Therefore, to the extent that the Magistrate Judge believed that a facially discriminatory policy could not be challenged under a disparate treatment theory, we sustain EEOC's objection.
However, even though we agree that express sexual discrimination may be attacked under a disparate treatment theory, this reasoning does not entitle EEOC to relief under its per se theory. In fact, we agree with ETA that the challenged leave provisions in the collective bargaining agreements are not facially discriminatory. See, e.g., Maganuco, 939 F.2d at 445. Accordingly, EEOC is precluded from advancing its theory of per se discrimination at trial.
2. The Disparate Impact Claim
As an additional ground of attack, EEOC objects to the Magistrate Judge's rejection of its disparate impact claim. EEOC argues that if the Court finds that neither pregnant nor non-pregnant teachers could combine paid disability leave with an unpaid leave of absence, the challenged leave provisions disparately impact pregnant teachers. In Maganuco, the Seventh Circuit specifically addressed and unequivocally rejected this argument. 939 F.2d at 444-45. In fact, EEOC properly concedes that Maganuco is dispositive of its disparate impact claim. (Plaintiff's Response to Defendant's Citation of Supplemental Authority, p. 4). ...