No. 84-172 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

THE MILLER-WOHL COMPANY, INC., 

Petitioner and. Respondent, 

COpllr4ISSIONER OF LABOR AND INDUSTRY, 

STATE OF MONTANA, AND TWRA L. BULEY, 

Respondents and Appellants. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

R. Scott Currey argued, Dept. of Labor & Industry, 

Helena, Plontana 

Tipp, Hoven, Skjelset & Frizzell; Richard R. Buley 

argued for Tamara Buley, Missoula, Montana 

For Respondent: 

Church, Harris, Johnson & Williams; Cresap S. IlcCracken, 

Great Falls, Montana 

Charles L. Fine argued for Miller-Wohl Co., Phoenix, 

Arizona 

For Amicus Curiae: 

Kathleen H. Richardson for Women's Law Section, Havre, 

Montana 

Patten & Renz; Jeffrey Renz for American Civil 

Liberties Union, Billings, Montana 

Kathleen F. Holden for Montana Human Rights Commission, 

Helena, Montana 

Hilley & Loring; Emilie Loring for Montana Education 

Association, Great Falls, Montana 

Submitted: September 26, 1984 

Decided: December 28, 1984 

Filed: DhC ;! 8 1984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

This is an appeal. by Tamara L. Buley and the 

Commissioner of Labor and Industry from a judgment of the 

District Court, Eighth Zudicial District, Cascade County, 

finding the Montana Maternity Leave Act invalid and reversing 

a decision of the Commissioner in favor of Tamara for back 

wages and penalties. 

We reverse the judgment of the District Court. 

We determine for the purpose of this action that the 

employment policy of Filler-Wohl was one of IIO leave of 

absence for temporarily disabled employees until the end of 

their first year of employment. 

In short summary of our decision, we make the following 

determinations: 

(1) Miller-Wohlls discharge of Tamara because of her 

pregnancy was in direct violation of the Montana Yaternity 

Leave Act (MMLA). Moreover, as Title VII of the Civil Rights 

Act of 1964, and the Pregnancy Discrimination Act of the 

fezera1 government are interpreted by federal regulations, it 

appears that Miller-Wohlls no leave policy and discharge of 

Tamara may have viol-ated those federal acts. 

(2) Usually an attack on leais!.ation alleged to be 

discriminatory is mounted by a person discriminated against. 

In this case Miller-Wohl, as an employer, was not 

discriminated against by the MMLA, but it nevertheless has 

standing to raise validity of MMLA. 

(3) Miller-Wohl s no-leave policy created a disparate 

effect on women who become pregnant, compared to those 

employees who do not become pregnant. Although facially 
neutral, its no-leave policy subjected pregnant women to job 

termination risk on a basis not faced by men. The no-leave 

policy therefore was sexually discriminatory in violation of 

Title VII and the Pregnancy Disability Act. 

(4) The policy and purpose of Title VII and the PDA is 

to eliminate discrimination in employment policies. 

(5 Miller-Wohl ' s termination of Tamara directly 

violated the MJILA. The policy and purpose of the MMLA is to 

protect equal job opportunities for women as compared to 

others by removing a female disability job risk not faced by 

men and non-pregnant females. Its objective in that field, 

equality, is the same as the objective of Title VII. We do 

not agree that MMLA violates Title VII because it is 

gender-based in its operation, in that it protects women 

without at the same time protecting others equally. 

(6) By the simple expedient of requiring an employer to 

extend the same leave rights to all employees temporarily 

disabled as are extended to pregnant women under the MMLA, 

the Montana legislative purpose to provjde women equality of 

opportunity in employment could be preserved, and the 

provisions of the PNLA and Title VII reconciled. 

(7) Courts have recognized judicial power in 

discrimination cases to save the legality of questioned 

legislative enactments by the doctrine of extension, 

extending the same benefits to those who would otherwise be 

discriminated against. This case presents a proper one for 

judicial extension. However, because the legislature is 

meeting shortly we defer to the legislature for its action in 

this field. 

!8) We find the YMLA valid. 
I. 

Miller-Wohl hired Tamara Buley as a retail sales clerk 

at its Three Sisters store in Great Falls, Montzna on August 

1, 1979. She was employed to work full time (34-36 hours a 

week) during the store's two busy months, August and. 

December, and part-time (16-20 hours a week) fox the rest of 

the year. She was, according to the store manager, a 

"regular employee." 

Tamara missed two and a half days of work during her 

first week on the job because of what she thought was the 

'flu. On August 13, 1979, she discovered she was pregnant 

and soon after told her supervisor. During the next two 

weeks she suffered from "morninq sickness. I' She felt 

nauseated and faint, and as a result missed time from work, 

had to leave the selling floor for breaks, and spent 

considerable time in the store bathroom vomiting, and was 

sent home early on occasion. On August 27, 1979, Killer-Wohl 

terminated Tamara's employment, undoubtedly because her 

pregnancy diminished her effectiveness as a sales clerk. 

Tamara filed a complaint against Miller-Wohl with the 

Montana Commissioner of S;s.bor and Industry (Commissioner) . 

She claimed that Miller-Wohl- had violated the Montana 

Maternj ty Leave Act (MMLA) . 

Miller-Wohl then brought suit against the Commissioner 

and Tamara in United States District Court for the district 

of Montana, asking the federal court to declare the MMLA 

invalid and to enjoin its enforcement. The court issued a 

temporary restraining order for a brief period, but then 

permitted the state agency to proceed. 

On October 1, 1980 the Commissioner held a hearing and 

on October 3, 1980 issued an administrative order with 
findings of fact and conclusions of law that Miller-Wohl had 

violated the MMLA by dismissing Tamara Buley; that the MMLA 

neither offended Equal Protection guaranties nor was 

preempted by Title VII of the Civil Rights Act of 1964; and 

that Tamara was entitled to back pay and penalties in the 

amount of $6,5?3.60. 

The federal district court concurred in the 

Commissioner's conclusions. Mil-ler-Wohl Co. v. Commissioner 

of Labor and Industry, 515 F.Supp. 1264 (U.S.D.C. Mont. 

1981). In addition the federal court found that Miller-Wohl 

could comply with the PDA and Ff@II,A by simply granting leave 

to all employees who miss work because they are sick or 

disabled. 515 F.Supp, at 1267. 

The decision of the federal district court was appealed 

to the U.S. Court of Appeals for the Ninth Circuit. That 

court determined none of the issues. Instead it concluded 

that Miller-Wohl' s compJ-aints failed to present an 

affirmative federal claim over which the court could assert 

jurisdiction and dismissed the action. Miller-Wohl Go., Inc. 

v. Commissioner of Llabor and Industry, et al. 685 F.2d 1088 

(U.S.C.A. 9, 1982). This dismissal left the District Court 

opinion without precedential effect. 

Miller-Wohl also petitioned the state court for a review 

of the Commissioner's decision. On February 8, 1984, the 

District Court for Cascade County reversed the Commissioner's 

order. The District Court held that the mLA is 

discriminatory, is a denial of equal protection of the law, 

is a protective and preferential statute favoring nondisabled 

pregnant employees to the discrimination of disabled 

nonpregnant employees and disabled male employees, and is 
preempted by Titles VII and XI of the Fed-era1 Civil Rights 

Act. 

The Commissioner and Tanara appeal from the decision of 

the District Court, which brings the case to us for 

determination. 

11. 

The MJIT,A was adopted 13y the legislature in 1975 

(formerly Sectior! 39-7-201, -208, MCA, (1978); now Section 

49-2-310, -311, MCA, (1.983).) It provides in pertinent part: 

"Ma.ternity Leave -- [Jnlawful -- Acts of Employers. It 

shal.1 be unlawful-for an employer or his agent to: 

" (1) terminate a women' s employment because of her 

pregnancy; 

"(2) refuse to grant to the employee a reasonable 

leave of absence for such pregnancy;. . ." 

The MMLA is a legislative recognition of changing 

economic mores in American family life. We are told that in 

40% of American households there is a working wife or mother. 

A growing number of single women support themselves, or 

themselves and children. In family households the need for 

two paychecks spreads across the economic spectrum. Even 

young upwardly-mobile professionals !Yuppies) , like a 

hiplane, need two wings working to stay aloft. Economic 

necessity has converged with the growing insistence of women 

for equal opportunity in all fields to bring about 

legislative enactments such as the PWLA. The biblical 

impreca.tion that the male shall eat his bread by the sweat of 

his brow has been broadened; Eve is now included.. 

Congress has responded to these forces by including in 

the Civil Rights Act of 1964 provisions outlawj-ng 

discrimination in employment because of gender. Section 
703(a) (1) of the Act provides that it is an unlawful 

employment practice for an employer: 

"to . . . discharge any individual, or otherwise to 

discriminate against any individual with respect to 

his compensation, terms, conditions, or privileqes 

of employment, because -- of such individual's race, 

color, religion, sex, or national oriqinal, . . ." 

42 U.S.C. §2000e-2(a] ((1) 

The provisions of the Civil Rights Act of 1964 relating 

to sex discrimination in employment (hereafter Tit1 e VII) 

were tested in General Electric Co. v. Gilbert (1976), 429 

U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343. General Electric, as 

a self-insurer, had provided nonoccupatj.ona1 sickness and 

accident benefits to all its employees amounting to 60% of 

their straight-time weekly earnings up to a maximum of 26 

weeks. Several women employees became pregnant while 

employed by General Electric, and while the plan was in 

effect, and presented a claim to the company for disability 

benefits under the plan to recover for the period while each 

was absent from work as a result of the pregnancy. The 

claims were routinely denied on the ground that the plan did 

not provide disability benefit payments for any absence due 

to pregnancy. The women employees charged that the refusal 

of General Electric to pay disability benefits under the plan 

for time lost due to pregnancy and child birth discriminated 

against them because of sex, and so violated Title VII. The 

United States Supreme Court refused to recognize the 

propriety of an Equal Employment Opportunity Commission 

guideline that pregnancy disability should be treated on the 

same terms and conditions as other temporary disabilities, 

and held that pregnancy-related disabilities constitute an 

additional risk unique to women, and that the failure of 

General Electric to compensate women for this risk did not 
d.estroy the presumed parity of the benefits accruing to men 

and women alike which resulted from the facially evenhanded 

inclusion of risks in General Electric's Plan. 

The congressional response to the decision in Gilbert 

was an amendment in 1-979 to Title VII to include the 

Pregnancy Di.sability Act, Section 701 (k) (PDA) . The pertinent 

provision of PDA is: 

"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, child.bi.rth, 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 (A) of this Title shal.1 be interpreted 

to permit otherwise . . ." 

The outpou-ring of congressional statements at the time 

of the passage of PDA in the House and Senate Reports and by 

House members and senators on the floors of their respective 

houses ind-icate the passion and determination of 

congressional members to ban discrimination of all types j.n 

employment practices. Illustrative with respect to the PDA 

was the House Report: 

"As testimony received by this Conmittee 

demonstrates, the assumption that women will become 

pregnant and leave the labor force leads to the 

view of women as marginal workers, and is at the 

root of the discriminatory practices which keep 

women in low paying and deadend jobs. H.R.6075 

[PDAI unmistakenly reaffirms that sex 

discrimination includes discrimination based on 

pregnancy and specifically defines standards which 

require the pregnant workers be treated the same as 

other employees on the basis of their ability or 

inability to work." 5 U.S. Code Cong. & Admin. 

News 4749, 4751 (1978). 

In adopting the Civil Rights Act of 1964, and the PDA, 

Congress indicated its intention to permit state action 

consistent with those acts. Section 42 U.S.C 2000h-4 reads: 
"Nothing contained in any title of this Act shall 

he construed as indicating an intent on the part of 

Congress to occupy the fie1.d in which any such 

Title operates or to the exclusion of state laws on 

the same subject matter, nor shall any provision of 

this Act he construed as invalidating any provision 

of state law unless such provision is inconsistent 

with any of the purposes of this Act, or any 

provisions thereof." 

Title VII of the Act, concerning employment 

discrimination also contains a section, Section 42 U.S.C. 

2000e-7 which reads: 

"Nothing in this subchapter [Title VII] 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 or of any 

subdivision of a state, other than any such law 

which proports to require or permit the doing of 

any act which would he an unlawful employment 

practice under this chapter." 

One further provision of the MMLjA should be noted. 

Reinstatement of the pregnant employee after leave of absence 

is required in the Act. Former Section 39-7-204 (now Section 

49-2-311) provides: 

"Reinstatment of job following regnancy-related 

leave of absence. Upon signifyiEg her intent to 

returnat the end of her leave of absence, such 

employee ~ha.1~ be reinstated to her original job or 

to an equivalent position with equivalent pay and 

accumulated seniority, retirement, fringe benefits 

and other service credits, unless in the case of a 

private employer, the employer ' s circumstances have 

so changed asto make itimpossible or unreasonable 

to do so. " 

The foregoing paragraphs summarize the federal and state 

enactments under which Tamara's case must be resolved. 

The issue to be decided here is whether the MMLA is 

invalid because of, or preempted by, Title VII and the PDA. 

If the answer is affirmative, Tamara has no case and the 

judgment in the District Court must be affirmed. 

On her appeal Tamara contends that the MMLA is 

consistent with the purposes of Title VII which is to 
eliminate empl oyment discriminaticn between the sexes ; that 

the MMLA does not violate Title VII because it does not 

limit, deprive or adversely affect the employment 

opportunities of any individual; that the MMI,P which grants 

reasonable leave for pregnancy disabilities is not a state 

protectionist law in violation of Title VIT; that the MMLA is 

not preempted by Title T7JI for the reason that Congress did 

not intend to preempt state laws by the passage of PDA and in 

fact specifically examined and approved the MP41,A; that mtLA 

is not unconstitutional as a denial of Equal Protection Laws 

because pregnancy disability laws are not suhject to 

constitutional scrutiny, but if they are, the MMLA bears a 

close and substantial relationship to the legitimate state 

objective of eliminating employment discrimination against 

women because of pregnancy. 

The Commissioner contends that the MMLA, viewed in the 

light of the purposes of Title VII, is not inconsistent with 

federal law and so is not preempted by the same; in addition 

he contends that Mil-ler-Wohl may not attack the MMLA with a 

policy which in itself violetes Title VII; Commissioner 

further contends with respect to the Equal Protection 

argument that legislation based on pregnancy is not a 

gender-based classifica.tion for the purpose of equal 

protection analysis ~nd need only be justified on a 

reasonable basis, but even so, the MMLA could survive the 

more difficult test for gender-based classifications, in tha-t 

the WLA bears a substantial relationship to an important 

state interest. 

The Montana Human Rights Commission, appearing amicus 

curiae, supports the constitutjonality and validity of the 

BUJfI,A, contending that the federal constitution does not 
prohibit the use of gender-based classifications; that the 

MMLA bears a close and substantial relationship to important 

government objectives; that the individual dignity section of 

Article 11 of the Montana Constitution does not prevent the 

exercise of the legislature's power to enact statutes 

containing gender-based classfications; that the Pfl.LA is not 

preempted by the federal acts; and that in the alternative, 

this case is not ripe for decision by us on constitutional 

grounds and we should remand the case for further proceedings 

rather than hold MMLA unconstitutional. 

The combined brief of the American Civil Liberties 

Union, the National Organization for Women, the NOW Legal 

Defense and Education Fund, and the League of Women Voters, 

appearing amici curiae, while supporting the objective of 

Tamara generally, takes a somewhat different tack. These 

amici contend that if this Court construes the MMLA to permit 

employers to grant greater employment benefits to pregnant 

employees than to others similar in their ability or 

inability to work, the MMLA would confl-ict with Title VII; on 

the other hand, the MMJ,A and Title VII impose complementary 

obi-igations on employers and so this Court should declare 

that Montana employers must comply with both statutes to 

remove any apparent conflict between the two. Therefore this 

Court should extend MMLA ' s provisions in a nondiscriminatory 

fashion rather than invalidate the statute and deny all 

Montana citizens a benefit the legislature intended to 

con£ er . 

On the other hand, Mill-er-Wohl, as the respondent on 

appeal, contends that the MMLA is defective because it does 

not require the pregnant employee to be disabled from working 

in order to be eligible for a leave of absence or protected 
from discharge, and it is therefore discriminatory as to 

other employees of Miller-Wohl; that the District Court was 

correct when it found that the MMLA wa-s preempted and 

superseded by and in violation of Titles VTI and XI of the 

Civil Rights Act; that the MMLA is a protective and 

preferential statute and conflicts with Title VII in that it 

is impossible for a Montana employer to comply with the MMLA 

and Title VII at the same time; that the MMLA violates the 

Equal Protection Clause of the Fourteenth Amendment because 

it provides different treatment of persons on the basis of 

their sex; that in determining the equal protection argument 

the intermediate test or affirmative action test should be 

applied; and that the MWLA has no close or substantial 

relationship to any governmental interest. 

The Women's Law Section of the State Ear of Montana, 

appearing amicus curiae, supports the appellants in 

cant-ending that the MMLA is not preempted by Title VJJ; that 

under traditional eaual protection analysis the WLA does not 

create a gender-based classification; but if the MMLA does 

create a gender-based classification, it is not an invidious 

discrimination. 

The Montana Education Association, appearing amicus 

curiae, also supports the appel18nts, contending that the 

MMLA is not preempted, and does not violate constitutional 

equal protection guarantees; that it is not an unlawful 

protective legislation, and that it protects an important 

state governmental interest. 

111. 

Miller-Wohl is a chain that operates about 290 ladies' 

wear stores throughout the United States. Four such stores 

are located in Montana. 
On the face of them, the written employment policies of 

Miller-FJohl are nond.iscriminatory. The empl-oyment policies 

are printed in a booklet, at least one copy of which is kept 

at each store, sometimes distributed to employees (Tamara 

says she did not receive one), and the provisions explained 

and discussed with the store managers at employee meetings. 

The written employment policies contain the following 

provisions which are pertinent to this case: 

"It is the policy of the Miller-FJohl. Company to 

forbid acts of discrimination in all matters 

dealing with employees . . . 

"It has been the established policy of Miller-Wohl 

to provide equal employment opportunties to all 

qualified appl-icants who seek job opportunities 

with the Company at every level of employment. 

Hence, we do not d-iscriminate against anyone 

because of race, color, age, sex, or religion. 

"11. Sick Leave: 

All regular full-time employees with. one year 

seniority are entitled to receive up to five days 

of sick leave with pay for legitimate illness 

incurred during the calendar year. 

"16. Leaves of Absence: 

All employees, after one year of seniority, may 

receive a leave of absence in cases of protracted 

illness. Such leaves of absence shall be for three 

months. If the employee requires more than three 

months, an additional three months may be granted 

upon reapplication. 

"All other types of leaves are strictly wjth.in the 

discretion of the Manager. 

"17. Maternity: 

When an employee leaves for pregnancy, she will be 

granted a leave of absence for a period of time 

that includes the post-natal physical examination. 

"22. Time Off: 

If you need to have time off from your job, make 

your request to your Manager. A limited amount of 

time off may be granted for good reason. 
"Absence is considered to be excused for the 

following reasons only: 

"I. Illness certified by doctor's certificate; 2. 

A death in the employee's immediate family; 3. A 

wedding in the employee's immediate family; 4. 

With the Manager's permission. 

"28. Extension of Benefits: 

The benefits described herein are intend-ed 

primarily for the regularly working employee. As 

such, the benefits are directed toward the 

full-time and regular part-time empl-oyees . These 

benefits, however, may be extended to other 

employees within the discretion and approval of 

your Mana.ger and District Supervisor." 

It maybe gleaned from the foregoing paragraphs of the 

employment policies of Miller-Wohl that all. employees may 

receive a leave of absence wi.thout pay in cases of protracted 

illness. In cases of maternity, there is a provj-sion that 

the woman will be granted a leave of absence for a period of 

time that includes post-natal physical examination. Regular 

full-time employees with one year seniority earn sick leave 

based on the years in service. Time off for good reason will 

be granted; and finally those benefits which are intended 

primarily for the full-time and regular part-time employees 

may also be extended to other employees in the discretion of 

the manager. 

Because the written policies indicate that Miller-Wohl 

would extend to pregnant women a reasonable leave of absence 

to cover their d.isabled time, without pay, it is suggested to 

us by the ACLU, NOW, and the League of Women Voters that this 

clause should be remanded for clarification of dispositive 

factual issues as to whether Miller-Wohl granted such leaves, 

and under what circumstances. Undoubtedly, evidence tha-t 

Miller-Wohl had granted some employees 1.eave for a.n 

appendectomy, a broken limb, or other reason, but had refused 
Tamara 1-eave for her pregnancy disa.bility would automatically 

suggest that Miller-Wohl applied its discretionary leave in a 

discriminatory way. McDonald Douglas Corp. v. Green (1973) , 

411 U.S. 792. We decline to take t.hat position, however, 

because under the testimony in this case, Miller-Wohlls 

actual handling of leave for pregnancy cases belies the 

benign provisions of i.ts written employment policies. Th.e 

area supervisor for Miller-Wohl testified: 

"Q. In regard to the one year requirement, as a 

supervisor and earlier when you were a store 

manager, was there meetings with the store managers 

by the supervisor in regards to these items? A. 

Yes. 

"Q. What was said if anything in reyards to this 

ah, maternity leave and sick leave benefits 

provisions? A. It was pointed out that in the 

company's manual that unless an employee had been 

in employment with us for a minimum of one year the 

policy would not be deviated from. It would hold 

true. 

"Q. And this policy a.pplies to male and female 

employees? A. Yes it does. 

"Q. Have you had. employees with less than one year 

of employment who are pregnant, or sick, or ah 

injured, or ah, I mean an off the job injury or 

other reasons for a leave of absence to be 

requested and not granted? A. Would you like to 

rephrase that one more time? You talk too fast. 

"Q. Try again. Sorry. Have you had employees 

with less than one year of employment who have been 

pregnant, or ill, or injured, or some other 

meritorious reason for requesting or seeking leave 

of absence? A. No one has ever been given leave 

of absence without being employed for us for one 

vear at least." 

The store manager from the Great Falls store testified: 

"Q. Did Tamara Buley have a guide? A, It was 

made ava-ilable to her, yes. 

"Q. Did you discuss it with her? A. Yes we did. 

"Q. Did you discuss the one year requirement for 

benefits? A. Yes we did. 

"Q. Is that discussion of the one vear benefit 

brought to the attention of the employees? A. It 
was brought to the attention of any one that comes 

to work in the store." 

The testimony of the area supervisor and of the Great 

Falls store manager makes it clear that despite the language 

contained in the employment guide provisions which relate to 

employment policy, in actuality Miller-Wohl conducts a policy 

of no lea.ve for any disabled employees with less than one 

year employment experience with Miller-Wohl. We therefore 

determine this case in the circumstance that in actual 

practice Miller-Wohl extended no leave of absence from 

employment to any temporarily disabled employee until the end 

of the first year of employment. 

IV. 

IJnder the MMLA, it is unlawful in Yontana for an 

employer to terminate a woman's employment because of her 

pregnancy, or to refuse to grant the employee a reasonable 

leave of absence for such pregnancy. Miller-Wohl. clearly 

violated this statute. Section 49-2-310, MCA (1383). 

Therefore, unless the MM1,A is invalid as contended. by 

Miller-Wohl, the Commissioner was correct in determining a 

violation of the MMLA had occurred, and that Tamara va.s 

entitled to back pay and penalties for her wrongful 

discharge. See section 49-2-311, MCA (1983). 

The latest pronouncement by the United States Supreme 

Court of which we are aware in the field of pregnancy-related 

employment practices is Newport News Ship Building And Dry 

Dock Company v. EEOC. (1983), U.S. , 103 S.Ct. 2622, 

77 L.Ed.2d 89. 

In Newport News, the employer had provided a health 

insurance plan which contained hospitalization benefits for 

pregnancy-related female disabilities but provided ,-ess 
extensive pregnancy benefits for spouses of male employees. 

The Supreme Court held that the limitation of benefits for 

spouses of male employees discriminated against the male 

employees in violation of section 7031a) (3) of Title VII. In 

holding that Congress by enacting the PDA had overturned the 

Supreme Court's holding of General Electric Co. v. Gilbert, 

supra, the Supreme Court found that differential treatment of 

pregnancy is gender-based discrimination because only women 

can become pregnant, that the PDA makes it clear that 

discrimination based on pregnancy is on its face 

discrimination based on sex and that it is discriminatory to 

exclude pregnancy coverage from an otherwise inclusive 

benefits pl an. 

Tamara's case presents a somewhat different aspect than 

Newport News. Female spouses of male employees were not 

included in the Newsport News benefits plan though female 

employees were; in Miller-Wohl's case its no-leave policy for 

employees under one year of employment experience applies 

equally to male and female employees. 

While Killer-Wohl's no-leave policy was facially neutral 

as to Tamara and her class, it should not escape us that 

Tamara is not so much before us because of refusal to grant 

her pregnancy leave. She was in fact terminated from her 

employment. She was discharged because she was pregnant. 

Tit1.e VII provides that it is an unlawful practice for an 

employer to discriminate against any individual with respect 

to his employment "because of . . . sex." Under the PDA, the 

term "because of sex" includes "because of . . . pregnancy 

. . . ; women affected by pregnancy . . . shall be treated 

the same for all employment related purposes . . . as other 

nersons not so affected but similar in their ability or 
inability to work . . . " Section 701.(k), PDA (42 U.S.C. 

2000e (k) ) . 

When Title VII as amended by the PDA is understood 

properly, it becomes clear that the discharge from her 

employment of a woman for her pregnancy, without more, is an 

unlawful practice under Title VII and the PDA. It is a 

gender-based discrimination. The discharged pregnant woman 

is not treated the same for all employment-related purposes 

as all other persons not so affected, obviously, because men 

cannot be discharged for the same reason. The intent of 

Title VII and the PDA that women should be treated equally 

with men on matters of employment means that women cannot be 

discharged simply because they are pregnant. 

Tamara's disability came relatively early in her 

pregnancy. Not all women suffer from "morning sickness." 

Many pregnant women seem to be able to work nearly to the 

hour of their delivery, and to return to employment shortly 

after delivery. Inevitably, however, childbirth invol-ves 

some period of disability. Testimony before the House 

Committee on Education and Labor, considering the adoption of 

the PDA, indicated that normal period of pregnancy leave is 

about six weeks. HR Rep. No. 95-948, 5 U. S. Code 

Congressional and Administrative News 4749, 4753 (1978). An 

employer's no-leave policy therefore poses a drastic effect 

on women employees of childbearing age, an impact no male 

would ever encounter. 

In Abraham v. Graphic Arts International Union (USCA 1) 

(1 981), 660 F.2d 811, the employer of a temporary employee 

had a policy of granting ten days leave and no more to any 

disabled employee. Abraham was hired for a temporary 

project, as long as it received funding. She was discharged 
for work absence incidental to her impending motherhood. She 

had been given no leave of absence for her pregnancy. The 

circuit court held t 

"An employer can incur a Title VII violation as 

much by lack of an adequate leave policy as by 

unequal application of a policy that it does have. 

Title VII outlaws employment discrimination 

traceable to an employee's gender, and it takes 

little imagination to see that an omission may in 

particular circumstances be as invidious as 

positive action. As the Equal Employment 

Opportunity Commission had declared: 

" ' [Wl here the termination of an employee who was 

temporarily disabled is caused by an employment 

policy under which insufficient or no leave is 

available, such a termination violates the Act if 

it has a disparate impact on employment of one sex 

and is not justified by business necessity.' 

"Beyond peradventure, the 1imita.tion of leave to 

ten da.ys affected women employed in PEP program 

much more severely than any male engaged therein, 

or elsewhere in the union's hire. It therefore 

cannot afford the union refuge unless demonstrably 

it was required by the exigencies of the project, a 

matter to which we now turn." 660 F.2d at p. 619." 

The Abraham case was remanded by the Circuit Court to 

the United States District Court for the reason that summary 

judgment in favor of the employer was improper. The reasons 

given by the circuit court for the remand are cogent in this 

case, for the principle remains the same, the employer 

provided a leave policy tha.t was inadequate for pregnant 

women and gender-based in its impact upon one sex as compared 

to the other. 

Miller-Wohl's no-leave policy created a disparate effect 

on woman who become pregnant compa-red to men who do not 

become pregnant. Although the policy was facially neutral, 

it nonetheless subjected pregnant women to job termination on 

a basis not faced by men. The no-leave policy therefore 

appears to us to be gender-based discrimination by a.n 

employer in violation of Title VII and the PDA. 
v. 

The appellants point out that usually an attack on 

legislation because of its discriminatory effect is mounted 

by a person discriminated against. Here Miller-Wohl as an 

employer was not discriminated against. Appellants therefore 

claim that Miller-Wohl has no standing to claim that the MMLA 

was discriminatory. We conclude however that the impact upon 

Killer-Wohl is direct and substantial and it has standing to 

raise the validity of the MMTJA as such an employer. 

VI . 

Sorting out the legal issues in this case is like 

walking through a hall of mirrors, so many facets are 

presented; or it is like examining a bagful of 

inconsistencies, such differing j-nterpretations of the 

federal and state statutes are given us. 

Miller-Wohl violated MMLA; it claims not to have 

violated Title VII, and the PDA, but to have complied with 

the letter of those federal laws. Miller-Wohl claims it 

cannot obey both sets of laws. 

The District Court and Miller-Wohl find that the MMLA is 

protectionist legislation favorinq one sex above the other. 

Yet the District Court held, and Miller-Wohl contends, 

that the MMLA is not gender-based, because MMLA discriminates 

in favor of pregnant women over non-pregnant women. 

Tsmara, the Comniission, and most amici see no conflict 

between the MMLA and Title VII, as amended by PDA; they 

contend that the objectives of the state and federal 

legislation are the same, to provide for equality for women 

on the job market. 

The ACLU, NOW, and the League of Women Voter's see in 

MMLA the kind of protectionist legisl-ation that historically 
hurt rather than helped women, and kept them in marginal 

jobs; yet these amici would preserve the MlLA by judicially 

extending its benefits to all sexes. 

The Commissioner sees no gender-based discrimination in 

MP.II,A, pointing to the protection of both sexes by preserving 

the right of husbands and wives to procreate and raise a 

family without sacrificing the income of the wife to support 

the family after pregnamcy. 

In the construction of statutes, we are directed by law 

to construe their provisions liberally with a view to effect 

their objects and to promote justice; when a statute is 

equally susceptible to two interpretations, one in favor of 

natural right and the other against it, the former is to be 

a-dopted. Sections 1-2-103, -104, MCA. 

In attacking the Y'iLA, Miller-Wohl contends that the 

Montana statutes are in violation of the equal protection 

clause of the federal constitution, are discriminatory, and 

are preempted a.nd. superseded by and in violation of Titles 

VII, and XI, of the Civil Rights Act. 

First Miller-Wohl sta-tes that the MMLA favored 

nondisabled pregnant employees to the excl.usion of all other 

employees. It points to an internal difference found within 

the YaLA: 

"It shsll be unlzwful for an employer or his agent 

to : 

" (1) Terminate a womijn's employment because of a 

pregnancy; 

" (2) Refuse to grant to the employee a reasonable 

Leave of absence for such pregnancy; 

"(3) Deny to the employee who -- is disabled, as a 

result of pregnancy any compensation to which she 

is entitled to the accumulation of disability or 

leave benefits accrued pursuant to pla-ns maintained 

by her employer, provided that the employer nay 

require disability as a result of said pregnancy to 
be verified by medical certification that the 

employee is not able to perform her empl-oyment 

duties;. . ." 

Mil-ler-Wohl claims that subsections (1) and (2) of 

section 49-2-310, MCA, apply to all employees who are 

pregnant, and not to employees who are disabled as a result 

of pregnancy, in contrast to subsection (3) which 

specj.fically delineates the pregnant employee -- who is disabled 

as a result of such pregnancy. Thus, Miller-Wohl claims that 

the provisions of MMLA require an employer to grant maternity 

leaves of absence to nondisabled pregnant employees as well 

as to pregnant employees and in that manner is 

discriminatory, protective, preferential, and in 

contradiction of Title VII. 

Miller-Wohl further contends that MMLA offends Title VII 

of the Civil Rights Act as amended by the Pregnancy 

Disability Act, section 701(k) with respect to the foll.owi.ng 

language : 

". . . and women affected by pregnancy, childbirth, 

or related medical cond.itions 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 i.n 

their ability or inability to work, and nothing in 

section 703(h) of this Title shall be interpreted 

to permit otherwise . . ." 

Miller-Wohl contends that the federal law requires equal 

employment policy only when the pregnant employee is disabled 

and therefore the state law is in conflict with the federal 

law. 

We reject Miller-Wohlls arguments on these points. 

Mil-ler-Wohl is arguing on a statement of facts that are not 

before this Court, and were not before the District Court nor 

the Commission. We are not considering in this case a 

nondisabl-ed pregnant employee. Tamara Buley was disabled by 
virtue of her pregnancy, and eventually was discharged for 

that disability. 

Disability as a result of pregnancy is not the sine qua 

- non for the a-pplication of PDA; it requires no more than the 

"medical condition" of pregnancy. The PDA states: 

''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 . . . " 42 U.S.C. 2000elk). 

FJe agree with Judge Paul G. Hatfiel-d, who determined 

this argument with clarity: 

"First, under the Equal Protectjon Clause, as 

contrasted with the statutory Pregnancy 

Discrimination Act discussed infra, men and women 

are not treated unequally when pregnancy is the one 

physical. condition given preferential treatment. 

Rather, by removing pregnancy-related disabilities 

as a legal grounds for discharge from employment, 

the MMLA places men and women on more equal terms. 

All workers, male or female, disabled for any 

reason other than pregnancy are still treated 

identically. Whether the disability or sickness is 

one that members of either sex could suffer, such 

as a broken leg, or hepatitis--or is one that 

members of only one sex could suffer--such as a 

ovarian cyst or prostatitis--the MMLA still permits 

plaintiff to treat workers under its leave policy 

with equal severity. The MMLA merely makes it 

illegal for an employer such as plaintiff 

[Miller-Wohll . . . to burden female employees in 

such a way as to deprive them of employment 

opportunities because of their different role.' 

National Gas Company v. Satty, 434 U.S. 142, 98 

S.Ct. 347, 351, 54 L.Ed.2d 356 (1977) ." 

Miller-Wohl v. Commissioner of Labor and Industry, 

etc., (1981), 515 F.Supp. 1264, 1266. 

In 27 A.L.R. Fed. 537, 554, S 3[bl are annotations of 

cases before the Equal Employment Opportunity Commissjon 

relating to employers ' policies of granti ng maternity leave 

only to em.ployees who have bean employed for a particular 

length of time. The EEOC finds such a policy to be 

discriminatory under Title VII. The reasons given include 

the fact that such maternity leave policies have a 

foreseeable adverse effect on the terms and coilditions of 
female employment, without an equivalent effect upon 

simil.arly placed males. In the absence of a legitimate 

business necessity reason for such a policy, the EEOC takes 

official notice of the fact that pregnancy, being a natural, 

expectable, and societally necessary condition, is certain to 

occur in a statistically predictable number of females in the 

labor force. Thus, an employment policy of not providing any 

leaves of absence, although neutral. on its face, has an 

exclusive impact upon female workers in violation of Title 

VII. 

Again, the holding in Abraham v. Graphic Arts 

International Union, supra, supports our conclusion with 

respect to the effect of Title VII, where inadequate leave is 

provided. The United States Supreme Court case of Newport 

News Shipbuilding And Dry Dock Company -- v. EEOC, supra, which 

finds tha.t Tit1.e VII mandates equal treatment between male 

and fema1.e employees is in our opinion consonant with what we 

state here respecting Title VII and the implications of the 

MIGA respecting Title VII. 

For the same reasons, we find that the MMLA is not 

preempted by either Title VII or the PDA. JWLA is consistent 

with the federal acts, and they permit state action in the 

same field. Section 42 U.S.C. 2000h-4; 2000e-7, supra. 

VII. 

As we noted above, a brief submitted by one set of amici 

suggested that the MMLA is invalid as being protectionist and 

paternalistic, but that its invalidity could be saved if this 

Court would extenc? the benefits of the mI,A on a 

gender-neutral basis to all workers. 

Although we have found that the MMLA is not violative of 

federal law, there are, nevertheless, good reasons existing 
why the Court or legislature should consider extension of the 

same benefits. 

In Welsh v. United States (1970), 398 U.S. 333, 361, 

370, 90 S.Ct. 1792, 1810, 26 L.Ed.2d 308, (Harlan, J., 

concurring) , Justice Harlan suggested a test for determining 

whether extension or invalidation was appropriate: 

"lilt is . . . necessary to measure the intensity 

of commitment to the residual policy and consider 

the degree of potential. disruption of the statutory 

scheme that would occur by extension as opposed to 

abrogation." 398 U.S. at 365. 

Extension of the reasonable leaves afforded by the MMLA 

to all workers would indeed further the Staters general 

interest in promoting the health and welfare of all its 

citizens and the legislature's concern for sexual equality 

and stable and workable family relationships. It would 

establish the goal of sexual equality in the work place 

contemplated by the MMLA a.nd eliminate hostility and 

resentment toward pregnant workers from those who are denied 

reasonable disability leaves. 

A policy which provided for disability leave without pay 

for all employees would cause the employer no financial 

disruption and little administrative expense. 

More important to this case, hcwever, extension of such 

W4LA benefits to all workers would end any argument that the 

MMLA is indeed sex based d.iscrj.mination in violation of Title 

VII. In Hays v. Potlatch Forests (U.S.C.A. 8 19721, 465 F.2d 

1-081, the Court of Appeals sust-ained a District Court which 

had before it an employer-challenge to an Arkansas law 

requiring overtime pay for women but not for men. The Court 

of Appeals approved the District Court's order to eliminate 

fiiscrimination by requiring that the male employees be paid 

an equal amount for overtime as required for women, finding 
thereby no frustration or impedance of the purposes of Title 

vll. The same rationale applies here. 

The legislature will be meeting shortly after the time 

of this decision. It can take up the question of extending 

such benefits, in order to save the purposes of the MMLA free 

from any douht. We defer extension to the consideration of 

the legislature. We heartily recommend consideration of such 

language by the legislature. 

VIII. 

In accordance herewith, the judgment of the District 

Court declaring MMLA invalid is hereby reversed; the order of 

the Commission awarding back pay and penalties to Tamara 

Buley is reinstated; this cause is remanded to the District 

Court for such further proceedings as may be necessary in 

accordance with this opinion, and with directions to remand 

to the Commission. %\ 

We Concur: 

3L&A $. -jikLb,& Chief Justice