No. 84-172 IN THE SUPREME COURT OF THE STATEOF MONTANA 1984

THE MILLER-WOHL COMPANY, INC., Petitioner and.Respondent,

COpllr4ISSIONER OF LABORAND INDUSTRY, STATE OF MONTANA,AND TWRAL. BULEY, Respondentsand Appellants.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The HonorableJoel G. Roth,Judgepresiding. COUNSELOF RECORD: ForAppellants: R. ScottCurrey argued,Dept. of Labor & Industry, Helena,Plontana Tipp,Hoven, Skjelset & Frizzell;Richard R. Buley argued forTamara Buley, Missoula,Montana For Respondent: Church, Harris,Johnson & Williams; Cresap S. IlcCracken, GreatFalls,Montana Charles L. Fine argued forMiller-Wohl Co., Phoenix, Arizona For Amicus Curiae: KathleenH. Richardson forWomen's Law Section, Havre, Montana Patten & Renz; Jeffrey Renz for American Civil LibertiesUnion,Billings, Montana Kathleen F. Holden forMontana Human Rights Commission, Helena,Montana Hilley & Loring; Emilie Loring forMontana Education Association,Great Falls,Montana

Submitted: September 26, 1984 Decided: December 28, 1984

Filed: 

### DhC;!

### 8

## 1984

ClerkMr. 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 MontanaMaternity LeaveAct invalid and reversing

a decision of the Commissioner in favor of Tamara for back wages and penalties. We reverse the judgment of the DistrictCourt. 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-Wohllsdischarge of Tamara because of her pregnancy was in direct violation of the Montana Yaternity Leave Act (MMLA). Moreover, as TitleVII of the Civil Rights Act of 1964, and the Pregnancy Discrimination Act of the fezera1government are interpretedby federal regulations, it appears that Miller-Wohllsno leave policy and discharge of Tamara may haveviol-atedthose federalacts. (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 raisevalidity 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 faciallyneutral, its no-leave policy subjected pregnantwomen to job termination risk on a basis not faced by men. The no-leave policy thereforewas sexually discriminatory in violation of TitleVII and the Pregnancy DisabilityAct. (4) Thepolicy and purpose of Title VII and the PDA is to eliminate discrimination in employmentpolicies. (5 Miller-Wohl

### 's termination of Tamara directly violated the MJILA. Thepolicy 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 timeprotecting others equally. (6) By the simple expedientof 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 TitleVII 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 shortlywe 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 (34-36hours 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 "regularemployee." 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 fromwork, 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 Maternjty 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 toproceed. On October 1, 1980 the Commissioner held a hearing and on October 3, 1980 issued 

### an administrative order withfindings 

### of fact and conclusions of law thatMiller-Wohl had violated the MMLA by dismissing Tamara Buley; that the MMLA neither offended Equal Protection guaranties nor was preempted by TitleVII 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-WohlCo. 

### 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 courtwas 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 Llaborand 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 alsopetitioned the state court for a review of the Commissioner's decision. On February 8, 1984, the District Court forCascadeCounty reversed the Commissioner's order. The District Court held that the mLA is discriminatory, is a denial of equal protection of the law, is aprotective and preferential statute favoring nondisabled pregnant employees to the discrimination of disabled nonpregnant employees and disabled male employees, and ispreempted by Titles VII and XI of the Fed-era1Civil 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).) Itprovides inpertinent part: "Ma.ternityLeave

## -- [Jnlawful Actsof Employers. It 

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

### "(1) terminate a women's employment because of her pregnancy; "(2) refuse togrant tothe employee a reasonable leaveof absence for such pregnancy;. 

# .."
The MMLA is a legislative recognition of changing economic mores inAmerican family life. We aretold that in 40%of American households thereisa working wife ormother. 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.tionthatthemale shalleat hisbreadby the sweat of hisbrow hasbeen broadened; Eve isnow 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. Section703(a)(1) of the Act provides that it is an unlawful employmentpractice foran employer: "to

# .

# ..discharge any individual, or otherwise to discriminate against any individualwith respect to his compensation, terms, conditions, or privileqes of employment,because 

### -- of such individual's race, color, religion, sex, or national oriqinal,

# ..." 42U.S.C. §2000e-2(a] ((1) The provisions of the Civil RightsAct of 1964 relating to sex discrimination in employment (hereafter Tit1e VII)

were tested in General Electric Co. v. Gilbert (1976), 429 U.S. 125, 97S.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 topay disability benefits under theplan for time lost due to pregnancy and child birth discriminated against them because of sex, and soviolated TitleVII. 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 notd.estroythe 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.sabilityAct, Section 701(k)(PDA)

# . Thepertinent 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.1be interpreted topermit otherwise

# . .." The outpou-ringof congressional statements at the time 

### of the passage of PDA in the House and SenateReports 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 thatwomenwill 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 standardswhich 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 lawson the same subjectmatter,nor shall any provision of this Act he construed as invalidatingany 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-7which 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 practiceunder this chapter." One further provision of the MMLjA should be noted. Reinstatementof the pregnant employee after leave of absence is required in theAct. Former Section 39-7-204 (nowSection 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 circumstanceshave so changed astomake itimpossible or unreasonable to do so.

### " The foregoing paragraphs summarize the federaland state enactmentsunderwhich Tamara'scasemust 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 theDistrict Courtmust be affirmed. On her appeal Tamara contends that the MMLA is consistent with the purposes of Title VII which is toeliminate employment 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 inviolation of TitleVIT; that theMMLA is not preempted by Title T7JI for the reason that Congress did not intend to preempt state lawsby 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

womenbecause of pregnancy. The Commissioner contends that the MMLA, viewed in the light of the purposes of TitleVII, is not inconsistent with federal law and so is not preempted by the same; in addition he contends that Mil-ler-Wohlmay 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 forgender-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 notprohibit the use of gender-based classifications; that the MMLA bears a close and substantialrelationship to important government objectives; that the individualdignity 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 andwe 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 theMMLA topermit employers to grant greater employment benefits to pregnant employees than to others similar in their ability or inability towork, theMMLA would confl-ictwith TitleVII; 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 apparentconflictbetween 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 tobe disabled from working in order to be eligible for a leave of absence or protectedfrom 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 TitleVJJ; that under traditional eaual protection analysis the WLAdoes 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-oymentpolicies

are printed in a booklet, at least one copy ofwhich 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 arepertinent to this case: "It is the policy of the Miller-FJohl. Company to forbid acts of discrimination in all matters dealing with employees

# ... "Ithas 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 incurredduring the calendaryear.

"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 shallbe 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 strictlywjth.inthe discretionof theManager.

"17. Maternity: When an employee leaves for pregnancy, shewill 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 offmay be granted forgood reason."Absence is considered to be excused for the following reasonsonly: "I. Illness certifiedby doctor'scertificate; 2. A death in the employee's immediate family; 3. A wedding in the employee's immediate family; 4. With theManager'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 yourMana.gerand District Supervisor." It maybe gleaned from the foregoing paragraphs of the employment policies of Miller-Wohl that all. employees may receive a leave of absencewi.thoutpay in casesof protracted illness. In cases of maternity, there is a provj-sionthat the woman will be granted a leave of absence for a period of time that includespost-natal physical examination. Regular full-time employees with one year seniority earn sick leave based on the years in service. Time off forgood reasonwill 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 themanager. Because the written policies indicate that Miller-Wohl would extend to pregnantwomen a reasonable leave of absence to cover their d.isabledtime,withoutpay, it is suggested to

us by theACLU,NOW, and the League ofWomen Voters that this clause should be remanded for clarification of dispositive factual issues as towhether 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 refusedTamara 1-eavefor her pregnancy disa.bilitywould automatically suggest thatMiller-Wohl applied itsdiscretionary leave in a discriminatoryway. McDonald DouglasCorp. v. Green (1973)

### , 411 U.S. 792. We decline to take t.hatposition, however, because under the testimony in this case, Miller-Wohlls actual handling of leave for pregnancy cases belies the benign provisions of i.tswritten employment policies. Th.e

area supervisor forMiller-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 fora minimum of one year the policy would not be deviated from. Itwould hold true. "Q. And this policy a.ppliesto male and female employees? A. Yes itdoes. 

### "Q. Have youhad.employees with less than oneyear 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 oneyear of employmentwho 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-ilabletoher,yes.

"Q. Did you discuss itwith her? A. Yeswe did. "Q. Did you discuss the one year requirement for benefits? A. Yeswe did. "Q. Is that discussion of the one vear benefit brought to the attention of the employees? A. Itwas brought to the attention of any one that comes towork 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 actualityMiller-Wohl conducts apolicy 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 temporarilydisabled employee until the end of the firstyear 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 whichwe 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, 77L.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 ,-essextensive 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 inviolation of section 7031a)(3) of TitleVII. 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 thatdifferential 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 benefitsplan. 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 employeeswere; inMiller-Wohl's case its no-leave policy for employees under one year of employment experience applies equally tomale and femaleemployees. While Killer-Wohl's no-leave policywas faciallyneutral

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 individualwith 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 orinability to work 

# . . 

# ." Section 701.(k), PDA (42U.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 awoman forher pregnancy, withoutmore, 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 onmatters of employment means that women cannotbe 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 Educationand 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 CongressionalandAdministrative 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 InternationalUnion (USCA1) (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. Shewas dischargedforwork absence incidental to her impending motherhood. She had been given no leave of absence for her pregnancy. The circuit courtheldt "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 Commissionhad declared: 

### "

### ' [Wlhere 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 justifiedby businessnecessity.' "Beyond peradventure, the 1imita.tionof 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 itwas required by the exigencies of the project, a matter towhich we now turn." 660F.2d atp. 619." The Abraham case was remanded by the Circuit Court to the United States DistrictCourt for the reason that summary judgment in favor of the employerwas 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.twas inadequate for pregnant

women and gender-based in its impact upon one sex as compared to the other. Miller-Wohl's no-leavepolicy created a disparate effect

on woman who become pregnant compa-redto men who do not become pregnant. Although the policy was facially neutral, it nonetheless subjected pregnantwomen to job terminationon

a basis not faced by men. The no-leave policy therefore appears to us to be gender-based discrimination by a.n employer inviolation of TitleVII 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 employerwas notdiscriminated against. Appellants therefore claim thatMiller-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 thevalidity of theMMTJA 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 federaland state statutes are givenus. 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 obeyboth setsof laws. TheDistrictCourt and Miller-Wohl find that theMMLA is protectionist legislation favorinq one sex above the other. Yet the District Court held, and Miller-Wohl contends, that the MMLA isnot gender-based, becauseMMLA discriminates in favor ofpregnant women over non-pregnantwomen. 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 MMLAthe kind of protectionist legisl-ationthat historicallyhurt rather than helped women, and kept them in marginal jobs; yet these amici would preserve the MlLA by judicially extending itsbenefits to all sexes. The Commissioner sees no gender-based discrimination in MP.II,A, pointing to the protection of both sexesby preserving the right of husbands and wives to procreate and raise a familywithout sacrificing the income of thewife to support the family afterpregnamcy. In the construction of statutes,we are directed by law to construe their provisions liberallywith 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 RightsAct. First Miller-Wohl sta-tes that the MMLA favored nondisabled pregnant employees to the excl.usionof all other employees. Itpoints 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 leavebenefits accrued pursuant topla-nsmaintained by her employer, provided that the employer 

### nay requiredisability as a resultof saidpregnancy tobe 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.ficallydelineates thepregnant employee 

### -- who isdisabled

as a result of such pregnancy. Thus,Miller-Wohl claims that the provisions ofMMLA 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 TitleVII. Miller-Wohl further contends thatMMLA offendsTitleVII of the Civil Rights Act as amended by the Pregnancy Disability Act, section 701(k) with respect to the foll.owi.ng language: 

# ".

..andwomen affected by pregnancy, childbirth, or relatedmedical cond.itionsshall 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 lawrequires equal employmentpolicy onlywhen thepregnant employee isdisabled and therefore the state law is in conflict with the federal law. We reject Miller-Wohlls arguments on these points. Mil-ler-Wohlis arguing on a statement of facts that are not before this Court,andwere notbefore the District Court nor the Commission. We are not considering in this case a nondisabl-edpregnant employee. Tamara Buley was disabled byvirtue of her pregnancy, and eventually was discharged for thatdisability. Disability as a result of pregnancy is not the sine

### qua

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

### - "medical condition" ofpregnancy. 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 argumentwith clarity: "First, under the Equal Protectjon Clause, as contrasted with the statutory Pregnancy Discrimination Act discussed infra, men and women arenot treated unequallywhen 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 thedisability 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 orprostatitis--the MMLA stillpermits 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 granting maternity leave only to em.ployeeswho 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 offemale employment, without an equivalent effect upon simil.arlyplaced 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 societallynecessary condition,is certain to

occur in a statisticallypredictablenumber of females in the labor force. Thus,an employmentpolicy of notproviding 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 TitleVII,where inadequate leave is provided. The United States Supreme Court case of Newport News ShipbuildingAnd DryDock Company

## -- v. EEOC, supra,which finds tha.t Tit1.eVII mandates equal treatment between male and fema1.eemployees is in our opinion consonantwith whatwe state here respecting Title VII and the implications of the MIGA respectingTitleVII. For the same reasons, we find that the MMLA is not preempted by eitherTitle VII or the PDA. JWLA is consistent with the federal acts, and they permit state action in the

same field. Section 42U.S.C. 2000h-4; 2000e-7, supra. VII. As we noted above, abrief submittedby one set of amici suggested that the MMLA is invalid asbeing 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 allworkers. Althoughwe have found that theMMLA isnot violative of federal law, there are, nevertheless, good reasons existingwhy 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 invalidationwas appropriate: "lilt is 

# . . . necessary to measure the intensity of commitment to the residual policy and consider the degree of potential.disruptionof the statutory scheme that would occur by extension as opposed to abrogation." 398U.S. at 365. Extension of the reasonable leaves afforded by the MMLA to all workers would indeed further the Statersgeneral 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 reasonabledisability leaves. A policy whichprovided for disability leavewithout pay for all employees would cause the employer no financial disruption and little administrativeexpense. More important to this case,hcwever, extension of such W4LA benefits to all workerswould end any argument that the MMLA is indeed sex based d.iscrj.minationinviolation of Title VII. In Haysv. PotlatchForests (U.S.C.A. 8 19721, 465 F.2d 1-081,the Court of Appeals sust-aineda District Court which had before it an employer-challenge to an Arkansas law requiring overtimepay for women but not formen. 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, findingthereby no frustration or impedance of the purposes of Title 

### vll. The same rationale applieshere. The legislature will be meeting shortly after the time of this decision. It can take up the question of extending suchbenefits, in order to save thepurposes of theMMLA free from any douht. We defer extension to the consideration of the legislature. We heartily recommend considerationof such languageby the legislature. VIII. In accordance herewith, the judgment of the District Courtdeclaring MMLA invalid ishereby 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