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 of women 

employed by the State 

Dear Representative Allen: 

Your letter, submitted at the request of the Committee on House 

Administration, asks a number of questions concerning maternity 

policies of the Legislature and other branches of the State Government. 

Your first question asks: 

“May the employment of a 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 of any state-wide policy with reference to the 

termination of employment of women employees because of pregnancy, 

and we understand that departmental policies may vary from the extreme 

of no policy at all to the opposite pole of one department which advises 

that, until recently, its policy dictated that “at the end of six months 

of pregnancy a condition of temporary disability will be considered to 

exist. ” The employee is allowed to exhaust accumulated vacation time, 

compensatory time and sick leave, all of which 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 1974 and 1975 (Laws 1973, 63rd 

Leg., ch. 659, p. 1786) in its Article V; 5 7(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 of duty. . . . 

II 

. . . . 

“Exceptions to the amount of sick leave an 

employee may take may be authorized by the adrninistrative head or heads of an agency of the State 

provided such exceptions are authorized on an 

individual basis after a review of the merits of 

such particular case. ” 

Prior to 1972 it was the established policy of the Texas State Employment Commission to require that pregnant employees take a maternity 

leave of absence without pay no later than two months before the expected 

date of delivery. Reinstatement at the end of the 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 of Title VII of the Civil Rights 

Act of 1964 (42 USC $ $2003e, et seq.) did not apply to the Commission 

because it was an expressly excluded State agency. 

Other Courts of Appeals ruled differently. See, for instance, Green 

b Waterford Board of Education, 473 F. 2d 629 i2d Cir., 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 of teachers either 5 

months before birth, in one instance, or 4 months before in the other. 

Cleveland Board of Education v. LaFleur, - u. s.-, 42 LW 4186 (Jan. 21, 

1974). 

The Court, in the majority opinion by Justice Stewart, stated the 

question before it as follows: 

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

“This Court has long recognized that freedom 

of paraonal choice in matters of marriage and family 

life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Roe v. 

Wade, 410 U.S. 113; Loving Y. Virginia, 388 U.S. 1. 

12; Griswold v. Connecticut, 381 U.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, 316 U.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 80 fundamentally affecting a 

person as the decision whether to bear or beget a child.’ 

“By acting to penalize the pregnant teacher for 

deciding to bear a child, overly restrictive maternity 

leave regulations can constitute a heavy burden on the 

exercise of these protected freedoms. Because public 

school maternity leave rules directly affect ‘one of 

the basic civil rights of man, ’ Skinner v. Oklahoma, 

rupra, at 541, the Due Process Clause of the Fourteenth 

Amendment requires that such rules must not needlessly, 

arbitrarily, or capriciously impinge upon this vital area 

of a teacher’s constitutional liberty. The question before 

us in these cases is whether the interests advanced in 

support of the rules of the 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 to any valid state interests of continuity of teaching since, in some 

instancea, it could have the opposite effect. As to the goal of maintaining 

healthy teachers in the classroom, the Court pointed to the fact that the 

medical witnesses agreed unanimously that the ability of any one pregnant 

woman to continue at work past any fixed time in her pregnancy is very 

much an individual matter. “Thus, the conclusive presumption embodied 

in these rules. . . ie neither Inecessarily nor universally true, ’ and is 

violative of the 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 of hand all rules requiring separation of an employee at a certain, 

fixed time before delivery. In a footnote to its holding, the Court said: 

“This is not to say that the only means for providing appropriate protection for the rights of pregnant teachers ir an individualized determination in 

each case and in every circumstance. We are not 

dealing in these cases with maternity leave kegulatione requiring a termination of employment at some 

firm date during the last few weeks of pregnancy. We 

therefore have no occarion to decide whether such 

regulations might be justif ied by considerations not 

presented in these records- for example, widespread 

medical coneenaus about the ‘disabling’ effect of 

pregnancy on a teacher’s job performance during these 

latter daye., or evidence showing that such firm cutoffs were the only rearonable method of avoiding the 

possibility of labor beginning wtile some teacher was 

in the 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 to when an employee may return to work after delivery, the 

Court in h Fleur struck down as unconstitutionally arbitrary and irraHonal a requirement of the Cleveland Board of Education that return 

could not be effected until at least three months after delivery. The 

Court upheld the requirement of a medical certificate. 

The facts involved in La Four took place prior to the 1972 amendments to Title VII of the Civil Rights Act making those provisions applicable, with certain exceptions, to state agencies and educational inrtitutionr. The Court recognized that development lessened the impact of its 

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 1964 in 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 to hire or to discharge 

any individual, or otherwise to discriminate against 

any individual with respect to hia compensation, 

terms, conditions, or privileges of employment, 

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 5 713(b) of the Act (42 USC, 

$2000e-12) the Equal Employment Opportunity Commission has issued 

guidelines as follows (29 CFR 5 1604.10): 

“$ 1604. 10 Employment policies relating to pregnancy 

and childbirth. 

“(a) A written or unwritten employment policy 

or practice which excludes from employment applicants or employeea hecau8e of pregnancy 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 commencement 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 be applied to 

disability due to pregnancy or childbirth on the same 

tarma and condition6 aa they are applied to other 

temporary disabilities. 

“(c) Where the termination of an employee 

who is temporarily disabled is caused by an employment policy under which insufficient or no leave ia 

available, such a termination violates the Act if it 

has a disparate impact on employees ofone sex and 

is not justified by business necessity. ” 

The answer to your first quertion, therefore, would appear to be 

that employment of a female state employee may not be legally terminated 

merely becaure she ia pregnant, if by “terminate” you mean a complete 

ending. On the other hand, an agency may adopt a policy, 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 by her remaining on the job. And other reasonable 

regulations, such aa the requirement of notice, may be required, provided 

they are required of G temporarily dirabled per8or.s. 

The decision as to when that should be will have to be determined 

on a case-by-case basis unless there is sufficient unanimity among the 

medical community that a “reasonable” date prior to delivery could be 

agreed upon. 

Your recond question asks: 

“If your answer to the first quertion is yea, 

and a female employee is dismissed because of her 

pregnancy: 

“a. What are her rights with regard to accrued 

vacation and sick leave? 

p. 1175 
The 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 to job clasrification, rate of compensation, 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 of absence to have 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 of other types of temporary disability, she should be entitled to similar consideration. 

The pregnant woman’s right to future employment in the same or 

any other rtate agency, her righta to job clarrification, compensation, 

retirement benefits, and other job benefits should be determined exactly 

as if her leave were occasioned by an injury or illness. 

Your third question arkr: 

“If your answer to the first quertion is no; 

and a female 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 to job classification, rate 

of compenration, retirement benefits, and other job 

benefita? ” 

p. 1176 
- 

The Honorable Joe Allen, page 8 (Ii-2s) 

An employee who haur been separated from rtate employment becauro 

of an unconrtitutional employment policy, will be entitled to cerbia 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 of a given care. 

Your fourth quertion ir: 

“May etatc agencies and officea grant temporary 

leaves of absence 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 of compensation 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 of a 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 of absence. The determination is to 

be made on an individual baais unless there ir unanimity 

among medical expert8 a# to a “reaeonable” date. 

3. AB to the termr of a pregnant woman’8 leave 

of abrence and her rights to future employment, her 

rightr to job claarlflcation, compenration and retire- * 

ment, they are to be determined on the 8ame barir as 

are those of any temporarily disabled employee. 

Attorney General of Texas 

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

APPROVED: 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1178