No. 14557 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE MOUNTAIN STATES TELEPHONE AND 

TELEGRAPH COMPANY, a Colorado 

Corporation, 

Plaintiff and Respondent, 

THE COMMISSIONER OF LABOR AND 

INDUSTRY OF THE STATE OF MONTANA et al., 

Defendants and Appellants. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellants: 

Rosemary B. Zion argued, Helena, Montana 

Clay Smith argued, Denver, Colorado 

James Gardner, Helena, Montana 

For Respondent: 

Hughes, Bennett and Cain, Helena, Montana 

John F. Sullivan argued, Helena, Montana 

Submitted: September 19, 1979 

Decided : I 1979 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This litigation originated as an administrative proceeding in the state Department of Labor and Industry. The 

decision of the administrative hearing was adverse to Mountain States Telephone and Telegraph Company (hereinafter 

"Mountain Bell") and judicial review and declaratory relief 

were sought. The District Court of the First Judicial 

District, Lewis and Clark County, entered judgment for 

Mountain Bell remanding the parties to the administrative 

level where the original proceeding could be dismissed. 

Appellants appeal from that judgment, and Mountain Bell, as 

respondent, cross-appeals from certain dicta included in the 

District Court opinion. 

Mountain Bell is a Colorado corporation engaged in 

interstate commerce throughout the Rocky Mountain west, 

including Montana. It is a signatory to a collective bargaining agreement with the Communication Workers of America 

(CWA), a labor union. This agreement provides that an 

employee may request up to one year's maternity leave but 

may receive no benefits during pregnancy except death benefits. 

Rae Bauer, a member of CWA, was an operator for Mountain Bell in Great Falls, Montana, and had been so employed 

since 1973. She became pregnant in the spring of 1975. 

Because of a past history of gynecological problems and on 

the advice of her doctor, she began a leave of absence on 

October 15, 1975. She gave birth on January 20, 1976, but 

did not return to work until October 11, 1976. 

Under the Mountain Bell disability benefits plan, she 

was clearly ineligible for compensation for the pregnancy 
leave taken. The company traditionally denied disability 

benefits for pregnancy-related conditions. 

On February 11, 1976, Rae Bauer filed a complaint under 

the Maternity Leave Act of the State of Montana, section 41- 

2601 et. seq., R.C.M. 1947, now section 39-7-201 et seq., 

MCA, alleging that she was entitled to certain maternity 

leave benefits. After an administrative hearing, it was 

found that the Department of Labor and Industry had jurisdiction over the matter. As a result of a second administrative hearing, the claim for benefits was dismissed. All 

parties excepted to the result of this hearing. The commissioner issued a decision which, in effect, said the Maternity 

Leave Act governed the situation and that benefits were 

payable. In so holding, the commissioner rejected Mountain 

Bell's argument that either the federal Employee Retirement 

Income Security Act of 1974 (ERISA) or the Labor Management 

Relation Act of 1947, as amended (LMRA), preempted the state 

law. Further, under the state act, the phrase "disabled as 

a result of pregnancy" meant all disabilities related to 

pregnancy and that pregnancy meant both pre- and postchildbirth conditions. The next day, the commissioner 

adopted the decision as part of the department's administrative rules. 

Mountain Bell subsequently sought judicial review of 

the decision as well as to have the rules of the department 

declared invalid. On August 17, 1978, the District Court 

concluded that the federal laws did preempt the operation of 

the state law and that the state law was unenforceable 

against Mountain Bell. From that portion of the court's 

ruling, appellants appeal. By way of dicta, the ~istrict 

Court opinion said, for intrastate enterprises, the state 
law required that benefits be paid for all pregnancy-related 

occurrences, whether normal or abnormal, and that the statute 

applied from the beginning of disability through the termination of gestation and for a reasonable time afterwards. 

From this portion of the opinion, Mountain Bell crossappeals. 

The following issues have been presented to this Court 

for review: 

1. Does either the Employee Retirement Income Security 

Act of 1974, 29 U.S.C. SlOOl et seq., or the Labor Management Relations Act of 1947, as amended, 29 U.S.C. S141 et 

seq., preempt the application of section 39-7-203(3), MCA, 

of the Montana Maternity Leave Act to respondent/crossappellant, the Mountain States Telephone and Telegraph 

Company? 

2. Whether the above Montana statute must be construed 

to confer benefits for normal and abnormal pregnancy disabilities and to pre- and post-childbirth conditions? 

Appellants/cross-respondents' position can be summarized 

as follows: 

(1) The Montana Maternity Leave Act is not preempted by 

the Employee Retirement Income Security Act or by federal 

labor laws. 

(2) Congress did not intend to legislate within ERISA 

on employment discrimination. Regulation of this field was 

left subject to Title VII of the Civil Rights Act of 1964. 

ERISA does not affect the operation of Title VII. 

(3) Title VII is based upon a model of state and federal 

cooperation. It provides for deferral to state anti-discrimination agencies of Title VII complaints and protects state 

laws which do not conflict with Title VII from preemption by 

that Act. 
(4) These provisions are part of a congressional purpose to encourage the development of state anti-discrimination 

laws* his purpose, which is essential to Title VII, would 

be impaired if ERISA were held to prohibit states from 

enacting anti-discrimination laws such as the Maternity 

Leave Act. 

(5) ~itle VII affirmatively protects state anti-discrimination laws from preemption. Operation of local laws 

is an integral part of legislative scheme of Title VII. 

(6) The United States Supreme Court has refused to find 

preemption in areas where Congress has intended to foster 

cooperation. 

(7) The recent enactment of the Pregnancy Disability 

Act, a law amending Title VII, specifically overturned 

General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 

S.Ct. 401, 50 L.Ed.2d 343, and made it clear that Congress 

did not preempt state pregnancy disability laws by enacting 

ERISA. 

(8) Federal labor laws do not preempt the Montana 

Maternity Leave Act. Applying a balancing test, the interest 

of the state in providing economic protection to its women 

workers clearly outweighs any implied incursions into the 

territory occupied by NLRA/LMRA. 

(9) Title VII also protects the Montana statute from 

preemption by federal labor law. 

(10) The statutory protection afforded by Title VII and 

the Montana Maternity Leave Act are in the nature of an 

independent right and cannot be waived through collective 

bargaining. 

(11) There is a presumption in favor of the validity of 

state statutes which deal with an area of traditional state 

concern. 
(12) The Montana Maternity Leave Act clearly applies to 

all periods of disability occurring as a result of pregnancy, 

whether these periods of disability are normal or unusual, 

and regardless of whether they occur before or after childbirth. 

Respondent/cross-appellant takes a generally contrary 

position. 

The Equal Employment Opportunity Commission, appearing 

by amicus brief, argues that state fair employment laws such 

as section 39-7-201 et seq., MCA, are not preempted by ERISA 

for the reasons stated in Bucyrus-Erie Cq. v. Department 

of Industry, Etc. (7th Cir. 1979), 599 F.2d 205, and for the 

reasons stated in the briefs of appellants/cross-respondents. 

ERISA PREEMPTION -- OF THE MONTANA ACT 

The first issue facing this Court is whether section 

39-7-203(3), MCA, is preempted by the Employee Retirement 

Income Security Act (ERISA, P.L. 93-406, 88 Stat. 897, 

enacted September 2, 1974, and in particular 5514 thereof, 

codified as 29 U.S.C. 51144 and referred to herein as 51144). 

Section 39-7-203(3), MCA, of the Montana Maternity 

Leave Act, provides in pertinent part: 

"It shall be unlawful for an employer or his 

agent to: 

"(3) deny to the employee who is disabled as a 

result of pregnancy any compensation to which 

she is entitled as a result of the accumulation 

of disability or leave benefits accrued pursuant 

to plans maintained by her employer . . ." 

The preemption provision of ERISA, 29 U.S.C. 51144(a), 

provides in pertinent part: 
" (a) except as provided in subsection (b) of 

this section, the provisions of this subchapter . . . shall supersede any and all State laws 

insofar as they may now or hereafter relate to 

any employee benefit plan described in section 

1003(a) of this title . . ." 

29 U.S.C. 51003(a) makes the above section applicable 

to any benefit plan established or maintained by any employer 

engaged in interstate commerce. There is no dispute that 

Mountain Bell is engaged in interstate commerce nor is there 

any dispute that Mountain Bell's employee benefit plan is 

covered by ERISA. 

Mountain Bell argues, and the District Court held, that 

the federal government has clearly and unambiguously occupied 

the field with respect to employee health and welfare benefits and has preempted the states from in any way regulating 

such benefits other than by the specific exemptions provided 

in 29 U.S.C. 51144(b), exemptions which admittedly do not 

apply here. 

Appellants do not agree. They contend that the Montana 

statute is exempted from ERISA preemption by 29 U.S.C. 

§1144(d), which declares, "[nlothing in this subchapter 

shall be construed to alter, amend, modify, invalidate, 

impair or supersede any law of the United States . . . "1 in 

conjunction with 42 U.S.C. 52000e-7 (section 708 in Title 

VII, P.L. 88-352, Civil Rights Act of 1964, 78 Stat. 2621, 

which provides, "[nlothing in this subchapter shall be 

deemed to exempt or relieve any person from any liability, 

duty, penalty, or punishment provided by any present or 

future law of any State . . ." Appellants argue that to 

allow preemption of the Montana Maternity Leave Act by 

subsection (a) of 29 U.S.C. S1144 would be to violate subsection (d) of that statute by impairing a law of the united 

States (the 1964 Civil Rights Act) by relieving ~ountain 

Bell from its liability under the Montana Act. 
Appellants further contend that by permitting ERISA 

preemption, two other sections of the Civil Rights Act would 

be impaired. They are 42 U.S.C. S2000e-5(c) (section 706, 

Title VII, P.L. 88-352, 78 Stat. 259, which provides for 

deferral of federal action in equal employment opportunity 

cases for a period of sixty days to permit the commencement 

of proceedings under state law) and 42 U.S.C. S2000h-4 

(section 1104, Title XI, 78 Stat. 268, which provides: 

"[nlothing contained in any title of this Act shall be 

construed as indicating an intent on the part of Congress to 

occupy the field in which any such title operates to the 

exclusion of State laws on the same subject matter, nor 

shall any provision of this Act be construed as invalidating 

any provision of State law unless such provision is inconsistent with any of the purposes of this Act or any provision thereof"). 

In effect, appellants argue that if the Montana Act is 

preempted, the above sections of the Civil Rights Act will 

be delimited. 

Although appellants' arguments found little solace in 

the District Court's opinion, similar arguments have found 

support in other jurisdictions: Goodyear Tire & Rubber v. 

Dept. of Industry (1978), 87 Wis.2d 56, 273 N.W.2d 786; 

Bucyrus-Erie Co. v. Dept. of Industry (E.D. Wisc. 1978), 453 

F.Supp. 75, aff'd, (7th Cir. 1979), 599 F.2d 205; Illinois 

Bell Tel. Co. v. Fair Employment Practices Commission (1979), 

68 111.App.3d 829, 25 111.Dec. 328, 386 N.E.2d 599; Westinghouse Elec. Corp. v. State Human Rights Appeals Board (1978), 

60 A.D.2d 943, 401 N.Y.S.2d 597; Liberty Mutual Insurance 

Company v. State Division of Human Rights (1978), 61 A.D.2d 

822, 402 N.Y.S.2d 218; Lukus v. Westinghouse Electric Corp., 
NO. GD77-14803 (Ct. of Common Pleas for Allegheny County, 

Pa., April 20, 1978 (unpublished opinion); Time Insurance 

Co. v. Department of Industry, Labor and Human Relations, 

No. 145-423, (~t. of Dane County, Wisc., January 3, 1978), 

16 BNA FEP 391. 

Although not dealing with facts similar to the instant 

case, a number of courts have interpreted the preemption 

provision in its "broadest sense." See Wadsworth v. Whaland 

(1st Cir. 1977), 562 F.2d 70; Standard Oil Co. of California 

v. Agsalud (N.D. Cal. 1977), 442 F.Supp. 695, 706-07; Bell 

v. Employee Security Benefit Ass'n (D. Kan. 1977), 437 

F.Supp. 382, 385-88; Wayne Chemical v. Columbus Agency 

Service Corp. (N.D. Ind. 1977), 426 F.Supp. 316, 321, aff'd 

as modified, (7th Cir. 1977), 567 F.2d 692; Hewlett-Packard 

Co. v. Barnes (N.D. Cal. 1977), 425 F.Supp. 1294, aff'd, 

(9th Cir. 1978), 571 F.2d 502; Azzaro v. Harnett (S.D. N.Y. 

1976), 414 F.Supp. 473, 474, aff'd, (2nd Cir. 1977), 553 

F.2d 93, cert. denied, (1977), 434 U.S. 824, 98 S.Ct. 71, 54 

L.Ed.2d 82; National Carriers Conf. Com. v. Heffernan (D. 

Conn. 1978), 454 F.Supp. 914, 918; Francis v. united Technologies Corp. (N.D. Cal. 1978), 458 F.Supp. 84. But see, 

Insurers Action Council, Inc. v. Heaton (D. Minn. 1976), 423 

F.Supp. 921, 926. 

It is interesting to note that although Wadsworth and 

Bell favored broad preemption by ERISA, they both held that 

the individual statutes before them were spared from exemption, albeit by the specific ERISA provision sparing state 

laws regulating insurance from preemption. Further, Wayne 

Chemical, while finding preemption, incorporated the state 

statute in question into the federal common law of employee 

benefit plans. Hewlett-Packard and Azzaro, on the other 
hand, found broad preemption. The state laws in these two 

cases, however, concerned areas regulated by ERISA. 

There are a number of cases on point where a state law 

prohibiting discrimination in the provision of disability 

benefits to pregnant workers is involved. While there is a 

split of authority, the majority of opinions to date have 

found no federal preemption of the state law. Gast v. 

State, by and through Stevenson (1978), 36 0r.App. 441, 585 

P.2d 12; Goodyear Tire & Rubber v. Dept. of Industry, supra; 

Bucyrus-Erie Co. v. Dept. of Industry, supra; Illinois Bell 

Tel. Co. v. Fair Employment Practices Commission, supra; 

Westinghouse Elec. Corp. v. State Human Rights Appeals 

Board, supra; Liberty Mutual Insurance Co. v. State Division 

of Human Rights, supra; Lukus v. Westinghouse Electric 

Corp., supra; Time Insurance Co. v. DILHR, supra. Contra, 

State of Minnesota v. MMM Co., Department of Human Rights 

Decision, Minn., September 16, 1977; Pervel Industries v. 

State of Conn. (D. Conn. 1978), 468 F.Supp. 490; American 

Chain and Cable Co., Inc. v. Iowa Civil Rights Commission, 

CE 6-2938 (Polk District County Ct., Iowa, June 28, 1978) 

(unpublished opinion). 

Several of the above decisions have adopted the view 

taken by appellants herein--that Title VII protects state 

statutes from preemption by ERISA. 

The Federal District Court in ~ucyrus-Erie, supra, 

analyzed the interrelationship of Title VII, ERISA, and the 

Wisconsin pregnancy disability law. The court found that 

while ERISA deals with employee benefit plans, the isc cons in 

Fair Employment Act does not specifically address such 

private employee benefits plans: "Rather, this Act is 

designed to prohibit discrimination in employment and is 
grounded on the state's police power. It does not impinge 

on federal regulation of employee benefit plans." 453 

The court further found that although ERISA supersedes 

state laws relating to employee benefit plans, it does not 

expressly provide that all state fair employment laws are 

likewise superseded: 

"The legislative history of the Act fails to 

indicate that Congress, by enacting ERISA, 

intended to preempt state fair employment 

laws as they may concern employee benefit 

plans. 

"Section 1144(d) does, in fact, provide that 

ERISA shall not be construed to alter, modify 

or supersede any law of the United States. 

"Title VII of the Civil Rights Act of 1964, 

42 U.S.C. 8 2000e, et seq., as amended, expressly preserves state laws such as the Wisconsin Fair Employment Act which are designed 

to prohibit employment discrimination. 42 

U.S.C. SB 2000e-7 and 2000h-4. 

"Title VII specifically provides that no charge 

may be filed with the EEOC under Title VII 

until sixty days after proceedings have been 

commenced under the state employment discrimination law, 42 U.S.C. S 2000e-5(c), 5(d) and 

5(e). The EEOC must give substantial weight 

to state agency findings and orders and must 

cooperate with such agencies. 42 U.S.C. SS 

2000e-5 (b) , 2000e-8. 

"From an examination of the provisions of 

ERISA and its legislative history, and considering Congress' long-standing recognition 

of the importance of state employment discrimination laws, this Court finds that it is not 

clear that Congress intended to preempt the 

Wisconsin Fair Employment Act insofar as it 

prohibits sex discrimination in employee benefit plans. 

"Because preemption is not clearly mandated in 

this Court's opinion, this Court declines to 

invalidate the Wisconsin Fair Employment Act 

against a claim of federal preemption grounded 

on ERISA. To hold otherwise, would also seriously impair the enforcement scheme of Title 

VII of the Civil Rights Act of 1964." BucyrusErie, 453 F.Supp. at 79. 
The court in Goodyear Tire & Rubber v. Dept. of Industry, supra, used a similar rationale in concluding that the 

exemption contained in S1144(d) applies to Title VII of the 

Civil Rights Act and through Title VII to section 111.32 

(5)(g) of the Wisconsin Fair Employment Act so as to preserve it from ERISA preemption: 

"There is no question but that prior to ERISA, 

sec. 111.32 (5) (g) , Stats., was consistent with 

Title VII which, like the Wisconsin statute, 

prohibited sex discrimination in employment. 

42 U.S.C. sec. 2000e-2 (a) (1). The Wisconsin 

statute therefore survived and was not preempted 

by Title VII. More precisely, and in the words 

of 42 U.S.C. sec. 2000h-4, there was no 'intent 

on the part of Congress to occupy the field 

. . . (of sex discrimination in employment) 

. . . to the exclusion of' Wisconsin's law on 

the same subject. 

"And there is no question but that Title VII 

survives intact the preemption provisions of 

ERISA by virtue of sec. 1144(d). 

"If sec. 111.32(5)(g), Stats., survived Title 

VII, and if the latter survives ERISA, then the 

logic of the federal statutes compels the conclusion that sec. 111.32(5)(g) survives ERISA." 

Goodyear, 273 N.W.2d at 795. 

The court rejected an argument (similar to one made 

here by Mountain Bell) by Goodyear that: 

". . . sec. 111.32(5)(g), Stats., survives only 

Title VII and is preempted as to employee benefit plans because the exemption from preemption 

is limited to Title VII. The argument is based 

upon the opening words of 42 U.S.C. S2000h-4, 

'Nothing contained in any title of this Act shall 

be construed . . .' as preempting state laws and, 

the argument continues, 'other federal statutes' 

may work preemption. The 'other federal statute' 

involved, however, is sec. 1144(d) of ERISA 

which tells us, in effect, that nothing in Title 

VII shall be construed as altered, amended, modified, invalidated, impaired or superseded by 

ERISA. If we are to adopt Goodyear's view of 

ERISA, an exception as to employee benefit plans 

must be found in 42 U.S.C. 52000h-4 of Title VII. 

That exception does not appear on the face of 

42 U.S.C. S2000h-4. Such an exception would 

have to be based upon an implied amendment of 

Title VII resulting from the adoption of ERISA, 

and would be contrary to sec. 1144(d) of ERISA. 
"Goodyear argues it would be a nonsequitur for 

Congress broadly to declare that state laws are 

preempted and then to permit the states to regulate employee benefit plans through the mechanism of a different federal statute. But the 

fact is that Congress declared in sec. 1144(d) 

of ERISA that federal laws remain unchanged 

after ERISA and Title VII continues to permit 

states to prohibit sex discrimination in employment." Goodyear, 273 N.W.2d at 795-96. 

In Liberty Mutual Insurance Company v. State ~ivision 

of Human Rights, supra, the court reviewed a determination 

by the State Human Rights Appeal Board affirming an administrative finding that an employer had discriminated against 

the complainant on the basis of her sex through disallowance 

of pregnancy-related benefits and stated: 

". . . Although the Congress fashioned a broad 

preemptive policy when it passed ERISA (see 

U.S. Code, tit. 29, 5 1144[al), the legislative 

history behind the passage of the retirement 

program leads us to conclude that Congress did 

not intend to narrow the jurisdiction of those 

Federal and State agencies whose duty it is to 

regulate unlawful employment practices. The 

statements of Senator Walter Mondale and Representative Bella Abzug, made in their respective 

Houses of Congress, indicate that anti-discrimination amendments to the ERISA legislation were 

only withdrawn upon assurance from the ERISA 

draftsmen that discrimination claims would 

continue to fall within the jurisdiction of the 

Equal Employment Opportunity Commission under 

terms of existing law (see 119 Cong.Rec. S30409- 

10 [Sept. 19, 19731; 120 Cong.Rec. H4726 [Feb. 

28, 19741). Thus, it is clear that Congress did 

not intend to disturb the established structures 

for administering such claims. Since title VII 

of the Civil Rights Act has clearly not been 

impaired by ERISA (see U.S. Code, tit. 29, 51144 

[dl; U.S. Code, tit. 42, §2000e-7), and since it 

vests concurrent jurisdiction in the Equal Employment Opportunity Commission and similar 

State-level agencies to investigate these claims 

(see, e.g. U. S. Code, tit. 42, SS2000e-4 [gl [ll 

2000e-7), we find that the jurisdiction of the 

State Division of Human Rights was not preempted 

by ERISA." Liberty Mutual, 402 N.Y.S.2d at 219. 

To the same effect as the above three cases are Lukus 

v. Westinghouse Electric Corp., supra, and Illinois Bell 

Tel. Co. v. Fair Employment Practices Commission, supra. 
In Gast, supra, the court reviewed the history of ERISA 

as well as its substantive provisions and concluded there 

was no broad intent to preempt substantive provisions such 

as the Oregon pregnancy law: 

"The subject matter of ERISA does not compel the 

conclusion that Congress intended to preempt 

states in regulating such things as pregnancy 

benefits. The scope of the regulatory scheme 

embodied in ERISA is limited, particularly with 

respect to health and welfare benefits. The 

statutory purposes enumerated in 29 U.S.C. 51001 

are: (1) to require disclosure and reporting to 

beneficiaries; (2) to ensure that employee pension benefit programs are adequately funded; (3) 

to improve the equities of pension plans; and 

(4) to establish 'minimum standards * * * assuring * * * their finanacial soundness.' 

"More significantly, there is no suggestion in 

the statute that Congress intended to regulate 

the substance of health and welfare benefits or 

the manner in which such benefits are to be provided. Thus, if we are to adopt the construction 

of 29 U.S.C. 51144(a) advanced by plaintiffs we 

must import to Congress not only an intent to 

preempt state law, but also an intent to cease 

all governmental regulation, state or federal, 

other than the disclosure and fiduciary requirements of health and welfare benefits paid by 

employers or employee organizations. There is 

nothing in the legislative history suggesting 

such an intent. To the contrary, the legislative 

history indicates Congress was concerned with the 

inadequacy of governmental regulations and concluded that there should be at least minimum 

federal standards with respect to disclosure and 

fiduciary responsibility. See, e.g., 29 U.S.C. 

S1001." Gast, 585 P.2d at 20-21. 

Although holding against preemption, the court, citing 

General Electric v. Gilbert (1976), 429 U.S. 125, 97 S.Ct. 

401, 50 L.Ed.2d 3Br did not accept the argument that Title 

VII spared the state act from preemption. 

In Time Insurance Co. v. DILHR, supra, the court also 

concluded that Wisconsin's pregnancy disability statute was 

not within the field of law preempted by ERISA. It held 

that the state law concerned: 
". . . is a statute broad in scope grounded on 

the State's police power to prevent employers 

engaging in any employment practice which discriminates because of sex. It in no way impinges 

on federal regulation of employee benefit and 

pension plans. The sex discrimination prohibitions of the Wisconsin Fair Employment Law are 

merely of peripheral concern of ERISA. Until the 

United States Supreme Court rules to the contrary, 

this Court is of the Opinion that Wisconsin courts 

so long as there exists a rational doubt that 

preemption exists, should uphold validity of 

sec. 111.32(5)(g), Stats., against a claim of 

federal preemption grounded on ERISA." 16 BNA 

FEP cases at 396. 

While the nonpreemption view appears to be in the 

majority, not all maternity leave cases agree with the one 

quoted above. In American Chain and Cable Co., Inc. v. Iowa 

Civil Rights Commission, supra, the Iowa court held that 

according to General Electric v. Gilbert, supra, and under 

Iowa law, an employer's disability benefit plan which specifically excluded disabilities due to pregnancy did not 

discriminate against women nor violate state or federal 

civil rights laws. The court also summarily concluded that 

ERISA had preempted the field. 

Similarly, the court in Pervel Industries v. State of 

Connecticut (D. Conn. 1978), 468 F.Supp. 490, rejected the 

double savings clause rationale that Title VII protected 

Connecticut's anti-discrimination law from preemption: 

"This Court does not accept the reasoning of 

this double savings clause contention. Section 

514(d) of ERISA preserves federal law. Connecticut's anti-discrimination law does not become 

a federal law simply because Title VII preserves 

its validity as against a claim of preemption 

by Title VII. Nor is the textual argument significantly enhanced by focusing on §514(b)'s 

requirement that ERISA should not be construed 

to 'impair' any law of the United States. Preemption of Conn. Gen. Stat. S31-126(g) by ERISA 

does not impair any federal law. Title VII did 

not create new authority for state anti-discrimination laws; it simply left them where they 

were before the enactment of Title VII. Whatever is prohibited by Title VII remains prohi- 
bited under ERISA but exclusion of disability 

benefits for pregnancy does not violate Title 

VII. . ." Pervel Industries, 468 F.Supp. at 493. 

As stated earlier, the nonpreemption viewpoint, as 

espoused by appellants, is favored by the majority of cases 

involving such maternity discrimination statutes. All the 

cases, however, rely on some, albeit varied, interpretation 

of how Title VII, ERISA, General Electric v. Gilbert, supra, 

and state laws interact. 

The parties agree that "potential problems of discrimination in employee benefit plans were not intended to be 

dealt with by ERISA," but were intended to be dealt with by 

Title VII of the Civil Rights Act of 1964. This is where 

the agreement ends, however, with Mountain Bell contending 

that under General Electric v. Gilbert, supra, it was not 

sex discrimination within the meaning of Title VII for an 

employer to exclude pregnancy disability benefits from 

coverage under employee plans, and appellants contending 

that the states were permitted to regulate employee benefit 

plans in the area of discrimination. 

Mountain Bell's position fails to take into account the 

rather checkered history of Gilbert, including the recent 

significant addition to Title VII demonstrating a contrary 

congressional intent, and the cases decided after Gilbert, 

demonstrating a consistent refusal on the part of the majority of the courts to follow Gilbert. An excellent discussion of this history is set out in Illinois Bell Tel. Co. v. 

Fair Employment Practices Commission, supra: 

"On October 31, 1978 section 701(k) of the Civil 

Rights Act of 1964 was signed into law adding a 

definition to the Act which demands a view of 

the statute from a different perspective, providing, in pertinent part: 
"'The terms "because of sex" or "on the basis of 

sex" include, but are not limited to, because of 

or on the basis of pregnancy, childbirth, or 

related medical conditions; and women affected 

by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other 

persons not so affected but similar in their 

ability or inability to work, and nothing in section 703(h) of this title shall be interpreted 

to permit otherwise.' 

"The language of section 701(k) makes clear that 

Congress disagreed with the interpretation placed 

upon the pregnancy discrimination issue by the 

Gilbert decision. This inference is buttressed 

by the commentary set forth in the Report of the 

Committee on Education and Labor of the House of 

Representatives which stated, in part: 

"'It is the Committee's view that * * * dissenting justices [Brennan, Marshal and Stevens in 

General Electric Co. v. Gilbert, 429 U.S. 125, 

97 S.Ct. 401, 50 L.Ed.2d 3431 correctly interpreted the act. * * * We recognize that the enactment of H.R. 6075 will reflect no new legislative 

mandate of the Congress nor affect changes in 

practices, costs, or benefits beyond those intended by title VII of the Civil Rights Act.' 

U.S. Code Cong. & Admin. News 1978, pp. 4749, 

4750. 

"Even in the absence of section 701(k) of Title 

VII, recent cases from other jurisdictions, 

which were decided after the Gilbert decision 

by the Supreme Court and after the decision of 

the trial court herein, almost unanimously support the conclusion we reach. (Massachusetts 

Electric Co. v. Massachusetts Cornm'n Against 

Discrim. (Mass. 1978), 375 N.E.2d 1192; Quaker 

Oats Co. v. Cedar Rapids Human Rights Comm'n 

(Iowa 1978), 268 N-W.2d 862; Castellano v. Linden 

Board of Education (1978), 158 N.J.Super. 350, 

386 A.2d 396; Anderson v. Upper Bucks County 

Area Vocational Tech. School (1977), 30 Pa.Cmwlth. 

103, 373 A.2d 126.) (Contra: Narragansett Electric Co. v. Rhode Island Comm'n for Human Rights 

(R.I. 1977), 374 A.2d 1022; Group Hosp., Inc. V. 

Dist. of Columbia Comm'n on Human Rights (D.C. 

1977), 380 A.2d 170.) Decisions by courts in 

other states, preceding that of the circuit court 

of Cook County herein, deciding contrary to its 

conclusion, include Brooklyn Union Gas Co. v. 

N. Y. State Human Rights Appeal Board (1976), 41 

N.Y.2d 84, 390 N.Y.S.2d 884, 359 N.E.2d 393; Ray0-Vac v. Wisconsin Dept. of Industry, Labor & 

Human Relations (1975), 70 Wis.2d 919, 236 N.W.2d 

209; Cedar Rapids School Dist. v. Parr (Iowa Sup. 

Ct. 1975), 227 N.W.2d 486. See also Comment, 

Love's Labor Lost: New Conceptions of Maternity 
Leave, 7 Harv.Civ.Rights-Civ.Lib.L.Rev. 260 

(1972); Johnston, Sex Discrimination and the 

Supreme Court--1971-1974, 49 N.Y.S.L.Rev. 672 

(1974); Comment, Pregnancy and the Constitution: 

The Uniqueness Trap, 62 Calif. L.Rev. 1532 (1974); 

Comment, Geduldig v. Aiello: Pregnancy Classifications and the Definition of Sex Discrimination, 75 Colum.L.Rev. 441 (1975); Comment, Pregnancy and Employment Benefits, 27 Baylor L.Rev. 

767 (1975). 

"Representative of the viewpoints expressed by 

the foregoing authorities is the well-reasoned 

opinion in Massachusetts Electric Co. v. Massachusetts Comm'n Against Discrim. (Mass. 1978), 

375 N.E.2d 1192 which held (375 N.E.2d at 1198- 

99) : 

"'In considering whether the exclusion of benefits for pregnancy-related disabilities from a 

comprehensive disability plan violates G.L. c. 

151B, 84, the initial inquiry necessarily involves determining whether distinctions based 

on pregnancy are sex-linked classifications. 

Pregnancy is a condition unique to women, and 

the ability to become pregnant is a primary characteristic of the female sex. Thus, any classification which relies on pregnancy as the determinative criterion is a distinction based on sex. 

General Elec. Co. v. Gilbert, 429 U.S. 125, 149, 

97 S.Ct. 401, 414, 50 L.Ed.2d 343 (1976) (Brennan, J., dissenting) ("Surely it offends common 

sense to suggest . . . that a classification 

revolving around pregnancy is not, at the minimum, strongly 'sex related'"). Id. at 161-162, 

97 S.Ct. at 421 (Stevens, J., dissenting) ("By 

definition . . . [placing pregnancy in a class 

by itself] discriminates on account of sex; for 

it is the capacity to become pregnant which primarily differentiates the female from the male"). 

Gilbert v. General Elec. Co., 375 F.Supp. 367, 

381 (E.D. Va. 1974), reversed, 429 U.S. 125, 97 

S.Ct. 401, 50 L.Ed.2d 343 (1976) ("[pregnancy] 

is undisputed[ly] and inextricably sex-linked. . . . That [exclusion of pregnancy-related disabilities] is discriminatory by reason of sex 

is self evident"). See Black v. School Comm. 

of Malden, 365 Mass. 197, 209-211, 310 ~.E.2d 

330 (1974). 

"'The exclusion of pregnancy-related disabilities, 

a sex-based distinction, from a comprehensive 

disability plan constitutes discrimination. 

While men are provided comprehensive coverage 

for all disabilities which will necessitate their 

absence from work, including male-specific disabilities, women are not provided the assurance 

of comprehensive protection from the inability 

to earn income during a period of disability. * * * (Citations omitted.) Pregnancy exclusions 
in disability programs "both financially burden 

women workers and act to break down the continuity of the employment relationship, thereby 

exacerbating women's comparative transient role 

in the labor force". * * * (Citations omitted. ) 

Moreover, pregnancy exclusions reflect and perpetuate the stereotype that women belong at home 

raising a family rather than at a job as permanent members of the work force. * * *I (Citations omitted. ) 

"It is also noteworthy that the decisions of the 

six federal courts of appeal which predate General 

Electric Co. v. Gilbert (1976), 429 U.S. 125, 97 

S.Ct. 401, 50 L.Ed.2d 343, concordantly concluded 

that pregnancy exclusions violated Title VII and 

constituted unlawful sex discrimination. Communications Workers v. American Telephone & Telegraph 

Company (2nd Cir. 1975), 513 F.2d 1024, vacated, 

429 U.S. 1033, 97 S.Ct. 724, 50 L.Ed.2d 744 (1977); 

Wetzel v. Liberty Mutual Insurance Co. (3d Cir. 

1975), 511 F.2d 199, vacated, 424 U.S. 737, 96 

S.Ct. 1202, 47 L.Ed.2d 435 (1976); Gilbert v. 

General Electric Co. (4th Cir. 1975), 519 F.2d 661, 

reversed, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 

343 (1976); Satty v. Nashville Gas Co. (6th Cir. 

1975), 522 F.2d 850, vacated in part, 434 U.S. 136, 

98 S.Ct. 347, 54 L.Ed.2d 356 (1977); Hutchison v. 

Lake Oswego School Dist. (9th Cir. 1975), 519 F.2d 

961, vacated, 429 U.S. 1033, 97 S.Ct. 725, 50 ~.Ed.2d 

744 (1977). 

"Since its decision in Gilbert, it appears that 

the Supreme Court has itself retreated from its 

position in two cases treating pregnancy-employment problems with a somewhat different outlook. 

(Nashville Gas Co. v. Satty (1977), 434 U.S. 136, 

98 S.Ct. 347, 54 L.Ed.2d 356; City of Los Angeles, 

Dept. of Water v. Manhart (1977), 435 U.S. 702, 

98 S.Ct. 1370, 55 L.Ed.2d 657.) Especially to be 

noted is the concurring opinion of Mr. Justice 

Blackmun in Manhart." Illinois Bell, supra, 386 

N.E.2d at 601-03. 

The above history indicates Congress originally intended 

to protect against sex discrimination in employment under 

Title VII. This, coupled with the fact that the Equal 

Employment Opportunity Commission guideline overturned in 

Gilbert was still in effect when ERISA was being considered, 

indicates that Congress did not intend to preempt employment 

discrimination acts which tangentially affect employee 

benefit plans because it had already attempted to do so 

under Title VII. 
Mountain Bell argues that statements made by Senators 

Javits and Williams, the principal architects of ERISA, 

concerning the impact of ERISA upon the Age Discrimination 

in Employment Act Amendments of 1978, P.L. 95-256, 92 Stat. 

189 (1978), amending the Age Discrimination in Employment 

Act of 1967, 29 U.S.C. SS621-634, are entitled to substantial weight in interpreting ERISA, in that they reflect upon 

the legislative intent of an earlier statute through subsequently enacted legislation. Goodyear made a similar argument in Goodyear Tire & Rubber v. Dept. of Industry, supra. 

The court there rejected the argument, stating: 

"That senatorial colloquy occurred more than 

three years after ERISA was enacted. Legislative 

observations years after passage of the Act are 

not part of its legislative history. United Air 

Lines, Inc. v. McMann, 434 U.S. 192, 200, footnote 

7, 98 S.Ct. 444, 54 L.Ed.2d 444 (1977). Our construction of ERISA is not foreclosed because members of Congress express contrary views after its 

passage. United States v. Philadelphia Nat. Bank, 

374 U.S. 321, 384, 83 S.Ct. 1715, 10 L.Ed.2d 915 

(1963). The Age Discrimination in Employment Act 

Amendments of 1978 do not amend, clarify or attempt to clarify ERISA. Goodyear's reliance upon 

Red Lion Broadcasting Co. v. F.C.C., 394 U.S. 367, 

89 S.Ct. 1794, 23 L.Ed.2d 371 (1968), is therefore 

misplaced, for in -- Red Lion the court said, 'Subsequent legislation declaring the intent[ion] of 

- an earlier statute is entitled to great weightin statutory construction.' (394 U.S. 381, 89 

S.Ct. 1801, emphasis added.)" 273 N.W.2d at 797. 

It is well settled that the question of whether a state 

statute is invalid under the supremacy clause depends upon 

the intent of Congress. Malone v. White Motor Corp. (1978), 

435 U.S. 497, 98 S.Ct. 1185, 55 L.Ed.2d 443. It is also 

well settled that state statutes are presumed to be valid 

unless Congress clearly intended these statutes to be superseded by federal law. Jones v. Rath Packing Co. (1977), 430 

U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604; Motor Coach Employees 

V. Lockridge (1971), 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 
473; E'lorida Lime & Avocado Growers, Inc. v. Paul (1963), 

373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248. 

As stated earlier: 

"The subject matter of ERISA does not compel the 

conclusion that Congress intended to preempt 

states in regulating such things as pregnancy 

benefits. The scope of the regulatory scheme 

embodied in ERISA is limited, particularly with 

respect to health and welfare benefits. The 

statutory purposes enumerated in 29 U.S.C. SlOOl 

are: (1) to require disclosure and reporting to 

beneficiaries; (2) to ensure that employee pension benefit programs are adequately funded; 

(3) to improve the equities of pension plans; 

and (4) to establish 'minimum standards * * * 

assuring * * * their financial soundness.'" 

Gast, 585 P.2d at 20. 

There is nothing in ERISA which treats the area of 

employment discrimination. The problem arises because we 

are dealing with two statutes--one state and one federal-- 

that seek to regulate separate activities although some 

overlapping areas exist between them. While ERISA supersedes state laws relating to employee benefit plans, it does 

not expressly supersede all state fair employment laws, nor 

does it mention them. Indeed, given the history of Title 

VII, it would have been illogical if it had. 

". . . Here, we have a federal regulatory scheme 

which regulates a limited area coupled with an 

express declaration which, if broadly interpreted, preempts states from a multitude of 

other areas which heretofore have been recognized as valid state concerns. . ." Gast, 585 

P.2d at 22. 

To hold for preemption would be to create an enormous 

vacuum in areas that have heretofore been traditionally 

dealt with by the states through the liberal intent of Title 

VII. The substantive nature of health and welfare benefits 

are not addressed by ERISA. We should not presume congressional intent to preempt unless Congress "has unmistakably 

so ordained." Florida Lime & Avocado Growers, Inc. v. Paul, 

supra, 373 U.S. at 142. 
NATIONAL LABOR RELATIONS ACT PREEMPTION 

The District Court declined to rule on this issue, 

noting: "Consideration of whether federal labor law preempts 

the Maternity Leave Act by implication is unnecessary in 

view of the much clearer preemptive declaration of ERISA. 

At any rate, I reach that conclusion and therefore will not 

attempt an analysis of federal labor law to determine whether or not it preempts our Maternity Leave .Act. " 

As there was no ruling concerning the effect of federal 

labor law by the District Court, this issue is technically 

not before us. The parties, however, have spent substantial 

portions of their briefs discussing this issue, and in view 

of our decision concerning ERISA, it becomes necessary to 

discuss this issue as well. 

During the relevant time period of this lawsuit, the 

employment relationship between Mountain Bell and Rae Bauer 

was governed by a collective bargaining agreement between 

Mountain Bell and Rae Bauer's labor union, Communications 

Workers of America. This collective bargaining agreement 

was entered into under and subject to the provisions of 

federal labor law. Generally, federal labor law does not 

specify what the substantive terms of collective bargaining 

agreements must be. Instead, federal labor law requires 

that employers and unions must bargain in good faith that 

they may work out for themselves their own agreements for 

the governance of their industrial relations. See 29 U.S.C. 

Sl58(d). 

Mountain Bell contends that federal labor law requires 

as a "mandatory subject of bargaining" that employers and 

unions come to some agreement on employer group insurance, 

including insurance for nonoccupational injuries or disease. 
W. W. Cross & Co. v. NLRB (1st Cir. 1949), 174 F.2d 875, 

878. Here, this mandatory collective bargaining between 

Mountain Bell and CWA resulted in an agreement which states 

that Mountain Bell is not required to pay disability benefits when an employee is on a maternity leave of absence. 

Mountain Bell further contends that the attempt by the 

Commission of Labor and Industry to compel Mountain Bell to 

pay such benefits under section 39-7-203, MCA, alters the 

collective bargaining agreement and violates the fundamental 

premise of federal labor law: that the terms and conditions 

of employment must be established by the collective bargaining which are not subject to being changed or altered by the 

application of contrary state laws. 

Appellants, on the other hand, reiterate that the 

Maternity Leave Act has been affirmatively authorized by 

Title VII. Further, they argue that such statutory protection against certain forms of employment discrimination is 

in the nature of an independent right and cannot be waived 

through collective bargaining. 

The court in Goodyear Tire & Rubber v. Dept. of Industry, 

supra, faced a similar issue. Goodyear's disability plan 

was negotiated subject to the NLRA. The effect of the 

department of industry's order there was to invalidate a 

provision in the plan which excluded pregnancy disabilities 

from full benefits. 

The department's order, therefore, altered Goodyear's 

collective bargaining agreement. The court cited extensively from Malone v. White Motor Corp. (1978), 435 U.S. 

497, 98 S.Ct. 1185, 55 ~.Ed.2d 443, and found that under 

Malone it had to look at federal labor law to determine 

whether state law had been preempted. The court did so and 
held ". . . we find an express statement in Title VII, 29 

U.S.C. sec. 2000h-4, that there was no 'intent on the part 

of Congress to occupy the field . . .' of sex discrimination 

in employment to the exclusion of state laws on the same 

subject matter." 273 N.W.2d at 798. 

In Malone the issue was whether a Minnesota pension 

statute was preempted prior to the enactment of ERISA by 

federal labor policy insofar as it purported to override or 

control the terms of collective bargaining agreements negotiated under the NLRA. The court stated: 

" It is uncontested that whether the Minnesota 

statute is invalid under the Supremacy Clause 

depends on the intent of Congress. 'The purpose of Congress is the ultimate touchstone. ' 

Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 

(1963). Often Congress does not clearly state 

in its legislation whether it intends to preempt 

state laws; and in such instances, the courts 

normally sustain local regulation of the same 

subject matter unless it conflicts with federal 

law or would frustrate the federal scheme, or 

unless the courts discern from the totality of 

the circumstances that Congress sought to occupy 

the field to the exclusion of the States. Ray 

v. Atlantic Richfield Co., ante, at 157-158; 

Jones v. Rath Packing Co., 430 U.S. 519, 525, 

540-541 (1977); Rice v. Santa Fe Elevator Corp., 

331 U.S. 218, 230 (1947). 'We cannot declare 

pre-empted all local regulatGn that touches or 

concerns inanywaythe complex Gr=nr 

ships between employees, employers and unions; 

obviously, much - - of - this _ is __ left - to - the States.' 

Motor Coach Employees v. Lockridge, 403 U.S. 274 

(1971). The Pension Act 'leaves much to the 

states, though Congress has refrained from telling 

us how much. We must spell out from conflicting 

indications of congressional will the area in 

which state action is still permissible.' Garner 

v. Teamsters, 346 U.S. 485, 488 (1953). Here, 

the Court of Appeals concluded that the Minnesota 

statute was invalid because it trenched on what 

the court considered to be subjects that Congress 

had committed for determination to the collectivebargaining process. 

"There is little doubt that under the federal 

statutes governing labor-management relations, 

an employer must bargain about wages, hours, and 

working conditions and that pension benefits 

are proper subjects of compulsory bargaining. 

But there is nothing in the NLRA, including 
those sections on which appellee relies, which 

expressly forecloses all state regulatory power 

with respect to those issues, such as pension 

plans, that may be the subject of collective 

bargaining. If the Pension Act is pre-empted 

here, the congressional intent to do so must be 

implied from the relevant provisions of the 

labor statutes. . ." Malone, 435 U.S. at 504- 

505. (Emphasis supplied.) 

The court found no such implication and, on the contrary, found an intent in the Welfare and Pension Plans 

Disclosure Act of 1958 to preserve state authority to regulate pension plans. Likewise, the court in Goodyear found an 

intent to preserve state authority to regulate sex discrimination. 273 N.W.2d at 798. 

In San Diego Building Trades Council v. Garmon (1959), 

359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, the court stated: 

". . . When the exercise of state power over a 

particular area of activity threatened interference with the clearly indicated policy of 

industrial relations, it has been judicially 

necessary to preclude the States from acting. 

However, due regard for the presuppositions of 

our embracing federal system, including the 

principle of diffusion of power not as a matter 

of doctrinaire localism but as a promoter of 

democracy, has required us not to find withdrawal from the States of power to regulate 

where the activity regulated was a merely peripheral concern of the Labor Management Relations 

Act. [Citations omitted.] Or where the regulated conduct touched interests so deeply rooted 

in local feeling and responsibility that, in the 

absence of compelling congressional direction, 

we could not infer that Congress had deprived 

the States of the power to act." 359 U.S. at 

243-44. 

Mountain Bell argues that rather than weighing and 

balancing state and federal interests, which the Garmon 

opinion prescribes, the federal courts have evolved a comparatively heavy-handed doctrine of preemption which applies 

whenever a state law has any effect whatsoever on any aspect 

of labor relations or any element of a collective bargaining 

agreement. 
Mountain Bell relies on Local 24 of the International 

Brotherhood of Teamsters v. Oliver (1959), 358 U.S. 283, 79 

S.Ct. 297, 3 L.Ed.2d 312, and Lodge 76, Machinists v. Wisconsin Employment Relations Commission (1976), 427 U.S. 132, 

96 S.Ct. 2548, 49 L.Ed.2d 396, to support its position that 

the federal policy under the NLRA is to preempt state attempts 

to alter or change the substantive terms of collective 

bargaining. "Our decisions . . . have made it abundantly 

clear that state attempts to influence the substantive terms 

of collective-bargaining agreements are as inconsistent with 

the federal regulatory scheme as are such attempts by the 

NLRB. . ." Lodge 76, 427 U.S. at 153. 

Both of the above cases dealt with areas substantively 

covered by NLRA: Oliver with wages and working conditions, 

and Lodge 76 with economic weapons of collective bargaining. 

Intent to preempt state action in such areas is readily 

recognizable. The instant case, however, does not deal with 

an area specifically covered by the NLRA but rather with an 

area of peripheral concern. To use a broad-sword approach 

to preemption in this area would be to forget the Supreme 

Court's own words: 

". . . Federal labor policy as reflected in the 

National Labor Relations Act . . . has been construed not to preclude the States from regulating 

aspects of labor relations that involve 'conduct 

touch[ing] interests so deeply rooted in local 

feeling and responsibility that . . . we could 

not infer that Congress had deprived the States 

of the power to act.' . . . the federal law governing labor relations does not withdraw 'from the 

states . . . power to regulate where the activity 

regulated [is] a merely peripheral concern of the 

Labor Management Relations Act.' . . . Cases that 

have held state authority to be pre-empted by 

federal law tend to fall into one of two categories: (1) those that reflect the concern that 

'one forum would enjoin, as illegal, conduct which 

the other forum would find legal' and (2) those 

that reflect the concern 'that the [application 
of state law by] state courts would restrict the 

exercise of rights guaranteed by the Federal Acts.'" 

Lodge 76, 427 U.S. at 136-38. (Omitting cases.) 

Clearly, this case does not fall in either of these traditional areas of preemption but is in an area of traditional 

local concern which only peripherally affects the collective 

bargaining process. Goodyear, supra. 

Alexander v. Gardner-Denver Company (1974), 415 U.S. 

36, 94 S.Ct. 1011, 39 L.Ed.2d 147, holds that an individual's 

rights to equal employment opportunities under Title VII ". 

. . form no part of the collective bargaining process . . ." 

415 U.S. at 51. 

". . . Moreover, the legislative history of Title 

VII manifests a congressional intent to allow an 

individual to pursue independently his rights 

under both Title VII and other applicable state 

and federal statutes. The clear inference is 

that Title VII was designed to supplement, 

rather than supplant, existing laws and institutions relating to employment discrimination . . ." Alexander, 415 U.S. at 48-49. 

Mountain Bell argues the Maternity Leave Act does not 

create the kind of personal and individual right found in 

Alexander because "the rights sought to be vindicated [in 

Alexander] were substantially protected by Title VII, whereas 

with respect to pregnancy disability benefits the Supreme 

Court has held that a denial thereof is not sex discrimination within the meaning of Title VII." This argument, 

however, ignores the fact that Title VII affirmatively 

protects and encourages state anti-employment discrimination 

legislationr as discussed herein, supra. 

The rights accorded under section 39-7-203, MCA, are 

uniquely personal and may not be waived through the collective bargaining process. Alexander v. Gardner-Denver, 

supra. 
"If Title VII rights to equal employment opportunities are non-negotiable in collective bargaining, and if those rights are in addition to 

rights granted by state law, it is unlikely that 

Congress intended that the latter may be bargained away even though Title VII rights may not. 

And if the individual's rights to equal opportunities are greater under state than federal law, 

it is unlikely that Congress intended that rights 

obtained from the state may be bargained away 

even though federal rights may not." Goodyear, 

273 N.W.2d at 800. 

We therefore conclude that section 39-7-203, MCA, is not 

preempted by the National Labor Relations Act. 

WHETHER THE MONTANA MATERNITY LEAVE ACT CONFERS BENEFITS 

FOR NORMLAND ABNORMAL PREGNANCY DISABILITIES AND --P TO PREAND POST-CHILDBIRTH CONDITIONS. 

Mountain Bell contends that section 39-7-203, MCA, 

should be limited to abnormal or unexpected complications of 

pregnancy. The District Court rejected this argument because 

the language of the statute and its legislative history do 

not expressly limit coverage to abnormal or involuntary 

complications. Mountain Bell, however, submits that the 

absence of such an express limitation is perfectly understandable in light of the fact that pregnancy is a largely voluntary condition, and, as such, the work absences associated 

with its normal and usual progression are not the types of 

disability usually covered by sick leave plans, which are 

primarily intended to compensate employees for unexpected 

illnesses and accidents. 

Mountain Bells continues that given the fact that 

pregnancy is not the typical covered disease or disability, 

one would expect that if the legislature had intended coverage of the normal usual and voluntary assumed consequences 

thereof, it would have said so expressly; however, the 

statute itself is silent on this issue and there is nothing 
in the legislative history which affirmatively indicates an 

intent to require sick leave coverage for pregnancy-related 

problems which are normal, natural, expected and voluntarily 

assumed. Mountain Bell submits that the legislature's 

silence on this issue can lead only to the conclusion that 

it intended that the phrase "disabled as a result of pregnancy" be interpreted in accordance with the usual policy of 

sick leave plans to compensate for unexpected wage loss. In 

the case of pregnancy, this would mean that compensation is 

required under section 39-7-203, MCA, only in cases of 

disabilities resulting from abnormal and unexpected complications of pregnancy. 

Appellants contend that such a narrow interpretation of 

section 39-7-203(3), MCA, would be contrary to the plain 

meaning of the section and would totally defeat the purpose 

of the legislature in enacting the section. Appellants 

further contend that the Senate had a proposed limitation, 

similar to the one espoused by Mountain Bell, which was 

rejected in a conference committee of the House and Senate. 

They further argue that the Maternity Leave Act was based on 

a Connecticut statute which, while weaker in many respects 

and more restricted than its Montana descendant, has still 

been interpreted to apply to disabilities which result from 

both normal and abnormal pregnancies and to disabilities 

which occur both before and after childbirth. 

The analysis of Judge Bennett in his opinion in the 

District Court was decisive on this point: 

"In construing a statute, words are to be given 

their natural, plain and obvious meaning. [Citations omitted.] In construing legislative 

intent, statutes must be read and considered in 

their entirety--the statute as a whole must be 

considered. U.S. v. Fort Belknap, 197 F.Supp. 
812 (~ont). In reading the maternity leave law 

as a whole, the purpose of the statute seems 

obvious: when employed women become pregnant, 

they cannot be denied maternity leave if they 

are eligible at all for disability benefits. 

They are entitled to those benefits until they 

are physically able to go back to work. There 

is nothing in the statute to even suggest that 

benefits should be allowed only if the disabilities are involuntary or result from abnormal 

complications. The term 'disability' means 

'lack of physical capacity; the inability to 

pursue an occupation or perform services for 

wages because of physical . . . impairment.' 

Websters Third International Dictionary. When 

interpreting a statute adopted from another 

state, the latter state's interpretation can be 

used to clarify the statute adopted in this 

state. Linley v. Davis 6 M 687 (1887); Coburn 

v. Coburn 89 M 386 (1931). Our maternity leave 

law was based on a Connecticut statute (Legis. 

history; Minutes of Meeting January 10, 1975). 

The Connecticut statute has been interpreted by 

that state's Commissioner of Human Rights and 

Opportunities to include disabilities resulting 

from normal and abnormal pregnancies, and to 

extend from conception through delivery and a 

reasonable period of recovery. Lagana, et a1 

v. Middletown Board of Ed. 1976. The legislative 

history reveals no intention to limit the statute 

to abnormal complications. Therefore the statute 

must be construed to cover disabilities resulting 

from normal and abnormal pregnancies. The statute 

does not purport to define pregnancy itself as 

a disability, but recognizes that the condition 

of pregnancy manifests itself in ways that disable the woman for a period of time. In determining the scope of the time period to be covered 

by the benefits, there seems to be no logical 

reason why maternity benefits should be treated 

any differently from other disabilities where 

benefits are allowed for a reasonable period of 

recovery, The plaintiff in the instant case apparently believes that babies are delivered by 

the stork and are not a natural consequence of 

pregnancy. The statute specifically states 'disabled as a result of pregnancy.' 'Pregnancy' by 

definition is a condition that begins with conception and ends with delivery (Blacks Law ~ictionary; Stedman's Medical Dictionary, 20th ed.). 

'Result' is that which arises as a consequence 

of something (Blacks Law ~ictionary). Childbirth 

is an obvious natural consequence of pregnancy 

and thus the statute intends to cover disabilities 

of childbirth. 

"I conclude therefore that the term 'disability 

as a result of pregnancy', as used in the Montana 

maternity leave law applies to disabilities resulting from normal as well as abnormal pregnan- 
ties, and the period of coverage extends from the 

onset of actual disability through termination 

of gestation and a reasonable period of recovery, 

to be determined by competent medical authority." 

The judgment of the District Court is reversed on Issue 

No. 1, relating to preemption of section 39-7-203(3), MCA, 

by the federal Employee Retirement Income Security Act of 

1974, 29 U.S.C. §lo01 et seq. 

Additionally, on the question of preemption of section 

39-7-203(3), MCA, by the federal labor law (National Labor 

Relations Act, 29 U.S.C. S141 et seq.), on which the District Court was not required to rule because of the nature 

of its opinion, we hold that the NLRA does not preempt the 

Montana Act. 

The judgment of the District Court is affirmed on Issue 

No. 3 on its finding that the term "disability as a result 

of pregnancy" as used in the Montana Maternity Leave Act 

applies to disabilities resulting from normal as well as 

abnormal pregnancies and the period of coverage extends from 

onset of actual disability through termination of gestation 

and a reasonable period of recovery, to be determined by 

competent medical authority. 

The case is remanded to the District Court to enter 

judgment in behalf of appellants/cross-respondents: the 

Commissioner of Labor and Industry of the State of Montana, 

the Administrator of the Labor Standards Division of the 

Department of Labor and Industry of the State of Montana, 

Rae S. Bauer, Communications Workers of America, and the 

Montana Human Rights Commission, in conformity with this 

Opinion. 
We concur: 

zJ&k%&f&\ Chief Justice 

Qd-2. ustices ALL^