March 4, 1974
The Honorable Joe Allen, Chairman Committee on House Administration House of Representatives Austin, Texas 78711 Opinion No. H- 251 Re: Questions relating to the rights ofwomen employed by the State Dear Representative Allen: Your letter, submitted at the request of the Committee on House Administration, asks a number ofquestions concerning maternity policies of the Legislature and other branches ofthe State Government. Your first question asks:

“May the employment ofa female state employee be legally terminated merely because she is pregnant? If so, at what point in the pregnancy and under what conditions may the employment be terminated? ”

. We are unaware ofany state-wide policy with reference to the termination of employment ofwomen employees because of pregnancy, and we understand that departmental policies may vary from the extreme of nopolicy at all to the opposite pole ofone department which advises that, until recently, its policy dictated that “at the end of six months ofpregnancy a condition oftemporary disability will be considered to exist. ” The employee is allowed toexhaust accumulated vacation time, compensatory time and sick leave, all ofwhich are usually insufficient to cover the period before the child is born. After child birth, this department considers the employee available for rehire as soon as there edstr a vacancy. The Appropriation Act for fiscal 1974and 1975 (Laws 1973, 63rd Leg., ch. 659, p. 1786) in its Article V; 57(b) (p. 2200) recognizes pregnancy and confinement as a baris for temporary leave, not complete termination. It provides:

p, 1170



### .. ’ -

The Honorable Joe Allen, page 2 (H-251) .

“Sick leave with pay may be taken when sickness, injury, or pregnancy and confinement prevent the employee’s performance ofduty.
. . .

II

. . . .

“Exceptions to the amount of sick leave an employee may take may be authorized bythe adrninistrative head or heads ofan agency ofthe State provided such exceptions are authorized onan individual basis after a review ofthe merits of such particular case. ” Prior to 1972it was the established policy ofthe Texas State Employment Commission to require that pregnant employees take a maternity leave ofabsence without pay no later than two months before the expected date of delivery. Reinstatement at the end ofthe leave was not automatic. This policy was upheld as reasonable under the Equal Protection Clause of 

### the Fourteenth Amendment in Schattman v. Texas Employment Commission, 459 F. 2d 32 (5th Cir. 1972), cert denied 409 U.S. 1107,the Court also holding that the sex discrimination provisions ofTitle 

### VII ofthe Civil Rights Act of 1964(42 USC $$2003e, et seq.) did not apply tothe Commission because itwas an expressly excluded State agency. Other Courts ofAppeals ruled differently. See, for instance, Green b Waterford Board of Education, 473 F. 2d629 i2dCir., 1973); Buckley **V.** Coyle Public School System, 476 F. 2d 92 (10th Cir. 1973). This conflict 

### prompted the United States Supreme Court to grant certiorari in two cases 

### involving school board policies requiring separation ofteachers either 5 months 

### before birth, in one instance, or 4months before in the other. Cleveland Board ofEducation v. LaFleur, - u.s.-, 42 LW 4186 (Jan. 21, 1974). The Court, in the majority opinion byJustice Stewart, stated the question before it as follows:

p. 1171The Honorable Joe Allen, page 3 (H-251)

“This Court has long recognized that freedom ofparaonal choice in matters of marriage and family life is one ofthe liberties protected bythe Due Process Clause of the Fourteenth Amendment. v. Roe Wade, 410U.S. 113;Loving Y. Virginia, 388U.S. 1. 12;Griswold v. Connecticut, 381U.S. 479; Pierce v. Society of

### Sisters2 268 U.S. 510; Meyer 

### V. Nebraska, ’ 262 U.S. 390. See also Prince v. Massachusetts, 321 U.S. 158;Skinner v. Oklahoma, 316U.S. 535. As we noted in Eisenstadt v. Baird, 405 U.S. 438,453, there is a right ‘to be free from unwarranted governmental intrusion into matters 

### 80fundamentally affecting a person as the decision whether to bear or beget a child.’

“By acting to penalize the pregnant teacher for deciding tobear achild, overly restrictive maternity leave regulations 

### can constitute aheavy burden on the exercise ofthese protected freedoms. Because public school maternity leave rules directly affect ‘one of the basic civil rights 

### ofman, ’Skinner v. Oklahoma, rupra, at 541, the Due Process Clause ofthe Fourteenth Amendment requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area ofateacher’s constitutional liberty. The question before us in these cases is whether the interests advanced in support ofthe rules ofthe Cleveland and Chesterfield County School Boards can justify the particular procedure they have adopted. ” (42 LW at 4189) (emphasis added) It concluded that the mandatory “cut-off ” dates had no rational relationship toany valid state interests of continuity ofteaching since, in some instancea, it could have the opposite effect. As 

### tothe goal of maintaining healthy teachers in the classroom, the Court pointed to the fact that the medical witnesses agreed unanimously that the ability ofany one pregnant woman to continue at work past any fixed time inher pregnancy is very much an individual matter. “Thus, the conclusive presumption embodied in these rules.
. . ie neither Inecessarily nor universally true, ’and is violative ofthe Due Process Clause.” (42 LW at 4190)

p. 1172., ’

The Honorable Joe 

### Allen, page 4 (I-I-251)

The 

### Court’8 decision, however, cannot be read as condemning out ofhand all rules requiring separation of an employee at acertain, fixed time before delivery. Ina footnote to its holding, the 

### Court said:

“This is not to say that the only means for providing appropriate protection for the rights 

### ofpregnant teachers ir an individualized determination in each case and in every circumstance. We are not dealing in these cases with maternity leave kegulatione requiring atermination of employment at some firm date during thelast few weeks of pregnancy. We therefore have nooccarion to decide whether such regulations might bejustif ied by considerations not presented in these records- for example, widespread medical coneenaus about the ‘disabling’ effect of pregnancy onateacher’s job performance during these 

### latter daye., or evidence showing that such firm 

### cutoffs were the only rearonable method ofavoiding the possibility of labor beginning wtile some teacher was inthe classroom, or proof that adequate substitutes could not be procured without at leant some minimal lead timeand certainty as to the dates upon which their employment was to begin. ” (footnote 13, 42 LW at 4191) As towhen an employee may return to work after delivery, the Court in h Fleur struck down as unconstitutionally arbitrary and irraHonal a requirement ofthe Cleveland Board of Education that return could not be effected until at least three months after delivery. The 

### Court upheld the requirement ofa medical certificate. The facts involved in La Four took place prior tothe 1972amendments to Title VII of the Civil Rights Act making those provisions appli

### cable, with certain exceptions, to state agencies and educational inrtitutionr. The Court recognized that development lessened the impact ofits decision which was rendered on constitutional rather than statutory grounds (footnote 8, 42 LW kt 4188).

p. 1173-

The Xonorable Joe Allen, page 5 (H-251)

The Civil Rightr Act of 1964in itr $703 (42 USC, !2000e-2) provider, in part:

“(a) It shall be an unlawful employment 

### practice for an employer -

“(I) to fail or refuse tohire or todischarge any individual, 

### or otherwise to discriminate against any individual with respect tohia compensation, terms, conditions, or privileges ofemployment, because of such individual’s race, 

### color, religion, sex, or national origin; or

“(2) to limit, segregate, or classify his employees 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’8 race, color, religion, sex, or national origin. ” Pursuant to the authority granted it in 5713(b) of the Act (42 USC, $2000e-12) the Equal Employment Opportunity Commission has issued guidelines 

### as follows (29 CFR 51604.10):

“$ 1604. 10Employment policies relating to pregnancy

and childbirth.

“(a) Awritten or unwritten employment policy or practice which excludes from employment applicants 

### or employeea 

### hecau8e ofpregnancy is in 

### prima facie violation of Title VII.

“(b) Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and 

### recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. Written and unwritten employment policies and

p. 1174

### . ’

The 

### Honorable Joe 

### Allen, page 6 (H-251)

practices involving mattera such 

### a8 the commence

### ment and duration of leave, the availability of extensions, the accrual of seniority and other benefits and privileges, reinstatement, and payment under any health or temporary diaability insurance 

### or rick leave plan, formal or informal, shall beapplied to disability due to pregnancy 

### or childbirth onthe same tarma and condition6 aa they are applied to other temporary disabilities.

“(c) Where 

### the termination ofan employee who is temporarily disabled is caused byan employment policy under which insufficient or noleave ia available, such a termination violates the Act if it has adisparate impact on employees ofone sex and is notjustified by business necessity. ” The answer to

### your first quertion, therefore, would appear to be that employment ofafemale state employee may not be legally terminated merely 

### becaure she ia pregnant, if by “terminate” you mean a complete ending. Onthe other hand, an agency may adopt apolicy, heed on reasonable factual findings. requiring a pregnant woman to

### take a leave of absence when her health would be endangered or her job performance would be impaired byher remaining on the job. And other reasonable regulations, such aathe requirement of notice, may berequired, provided they 

### are required ofG temporarily dirabled per8or.s.

The decision as towhen that should bewill have tobe determined on acase-by-case basis unless there is sufficient unanimity among the medical community that a “reasonable” date prior todelivery could 

### be agreed upon. Your recond question asks:

“If your answer to the first quertion is yea, and afemale employee is dismissed because ofher pregnancy:

“a. What are her rights with regard toaccrued vacation and sick leave?

p. 1175The Honorable Joe Allen, page 7 (H-251)

“b. What are her rights with regard to future employment with the state, especially 

### with the agency or office 

### where she was previously employed? 

### “C. If she is rubrequently employed by the same or another state agency or office, what rights would she have with regard tojob clasrification, rate ofcompensation, retirement benefits, and other job benefits? ” The answer to these is simply that pregnancy and childbirth may not be treated as different from any other 

### sort of temporary disability. A pregnant woman, upon taking 

### leave ofabsence tohave her child, should be allowed to exhaust her vacation time and sick leave and, 

### if it is the agency’s policy to extend sick leave in the event ofother types 

### oftemporary disability, she should be entitled to similar consideration. The pregnant woman’s right tofuture employment in the same 

### or any other rtate agency, her righta tojob clarrification, compensation, retirement benefits, and 

### other job benefits should bedetermined exactly as ifher leave were occasioned byaninjury or illness.

Your third question arkr:

“If 

### your answer tothe first quertion is no; and afemale employee is dismiraed because of pregnancy:



### “a. What are her rights with regard to reinstatement, 

### damagea , am other relief?

“b. If she is subsequently employed by

### the rame or another state agency or office, what rights would she have with regard tojob classification, rate 

### ofcompenration, retirement benefits, and 

### other job benefita? ”

p. 1176-

The Honorable Joe Allen, page 8 

### (Ii-2s)

An employee who haurbeen separated from rtate employment 

### becauro ofan unconrtitutional employment policy, will be 

### entitled tocerbia remediea depending upon the facts of each care. No definite rule may be 

### rtated, but remedies might include reinrtatement with 

### or without back pay, back pay without reinstatement, and/or 

### other remedies made legally appropriate by the circumatancer 

### ofagiven care. Your fourth quertion ir:

“May etatc agencies and officea grant 

### temporary leaves ofabsence without any pay to pregnant female employees, and at the end of such leave, reinrtate ruch employees in the same job claraification and at the #ame rate ofcompensation that they previously held? ” 

### We think our answers to the firat and second quertions answer 

### your fourth. Basically, the pregnant woman rhould be accorded the game rightr given 

### other employees abrent from work for temporary disability.

. SUMMARY 1. Employment ofa state employee may not be terminated merely because she is pregnant. 2. Where it ir factually ertablished 

### that it ir unhealthy for the woman 

### or impairs her job for a

### pregoant woman to continue 

### working, rhe may be required 

### to take a leave ofabsence. The determination is 

### to be made on an individual baais unless there ir unanimity 

### among medical 

### expert8 a# toa “reaeonable” date. 

### 3. AB tothe 

### termr ofa pregnant woman’8 leave 

### ofabrence and her rights to

### future employment, her 

### rightr tojob claarlflcation, compenration and retire- * ment, they 

### are tobe determined on the 8ame barir as 

### are those 

### ofany temporarily disabled employee.

Attorney General 

### ofTexas

p. 1177The Honorable Joe Allen, page 9 (H-251) APPROVED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 1178