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

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U.S. Supreme Court GENERAL ELECTRIC CO. v. GILBERT, 429 U.S. 125 (1976) 429 U.S. 125

[Page 429 U.S. 125, 126]

the exclusion of pregnancy disability benefits from petitioner's plan was a pretext for discriminating against women, since pregnancy, though confined to women, is in other ways significantly different from the typical covered disease or disability. P. 136.

(c) Gender-based discrimination does not result simply because an employer's disability benefits plan is less than all-inclusive. Petitioner's plan is no more than an insurance package covering some risks but excluding others and there has been no showing that the selection of included risks creates a gender-based discriminatory effect. Pp. 136-140.

(d) A 1972 guideline of the Equal Employment Opportunity Commission (EEOC) relied upon by respondents, not only conflicts with earlier EEOC pronouncements but is at odds with the consistent interpretation of the Wage and Hour Administrator with respect to 703 (h) of Title VII, as amended by the Equal Pay Act, and the legislative history of Title VII, both of which support the "plain meaning" of the language used by Congress when it enacted 703 (a) (1). Pp. 140-145.

519 F.2d 661, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE and POWELL, JJ., joined, and in which BLACKMUN, J., joined in part. STEWART, J., filed a concurring statement, post, p. 146. BLACKMUN, J., filed a statement concurring in part, post, p. 146. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 146. STEVENS, J., filed a dissenting opinion, post, p. 160.

[Footnote *] Together with No. 74-1590, Gilbert et al. v. General Electric Co., also on certiorari to the same court. See post, at 127 n. 1.

Theophil C. Kammholz reargued the cause for petitioner.Fn With him on the briefs were Stanley R. Strauss, John S. Battle, Jr., and J. Robert Brame III.

Ruth Weyand reargued the cause for respondents.Fn With her on the briefs were Winn Newman and Seymour DuBow.

Assistant Attorney General Pottinger argued the cause for the United States et al. on reargument as amici curiae urging affirmance. With him on the brief were Solicitor General Bork, Brian K. Landsberg, Walter W. Barnett, Abner W. Sibal, Joseph T. Eddins, Beatrice Rosenberg, and Linda Colvard Dorian.[fnŸŸ]

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See post, at 127 n. 1.

[fnŸŸ]

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MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner, General Electric Co.,[Footnote 1] provides for all of its employees a disability plan which pays weekly nonoccupational sickness and accident benefits. Excluded from the plan's coverage, however, are disabilities arising from pregnancy. Respondents, on behalf of a class of women employees, brought this action seeking, inter alia,[Footnote 2] a declaration

[Page 429 U.S. 125, 128]

that this exclusion constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 2000e et seq. The District Court for the Eastern District of Virginia, following a trial on the merits, held that the exclusion of such pregnancy-related disability benefits from General Electric's employee disability plan violated Title VII, 375 F. Supp. 367. The Court of Appeals affirmed, 519 F.2d 661, and we granted certiorari 423 U.S. 822. We now reverse.

I

As part of its total compensation package, General Electric provides nonoccupational sickness and accident benefits to all employees under its Weekly Sickness and Accident Insurance Plan (Plan) in an amount equal to 60% of an employee's normal straight-time weekly earnings. These payments are paid to employees who become totally disabled as a result of a nonoccupational sickness or accident. Benefit payments normally start with the eighth day of an employee's total disability (although if an employee is earlier confined to a hospital as a bed patient, benefit payments will start immediately), and continue up to a maximum of 26 weeks for any one continuous period of disability or successive periods of disability due to the same or related causes.[Footnote 3]

[Page 429 U.S. 125, 129]

1971 or 1972, while employed by General Electric, and each presented a claim to the company for disability benefits under the Plan to cover the period while absent from work as a result of the pregnancy. These claims were routinely denied on the ground that the Plan did not provide disability-benefit payments for any absence due to pregnancy.[Footnote 4] Each of the respondents thereafter filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that the refusal of General Electric to pay disability benefits under the Plan for time lost due to pregnancy and childbirth discriminated against her because of sex. Upon waiting the requisite number of days, the instant action was commenced in the District Court.[Footnote 5] The complaint asserted a violation of Title VII. Damages were sought as well as an injunction directing General Electric to include pregnancy disabilities within the Plan on the same terms and conditions as other nonoccupational disabilities.

[Page 429 U.S. 125, 130]

Following trial, the District Court made findings of fact and conclusions of law, and entered an order in which it determined that General Electric, by excluding pregnancy disabilities from the coverage of the Plan, had engaged in sex discrimination in violation of 703 (a) (1) of Title VII, 42 U.S.C. 2000e-2 (a) (1). The District Court found that normal pregnancy, while not necessarily either a "disease" or an "accident" was disabling for a period of six to eight weeks;[Footnote 6] that approximately "[t]en per cent of pregnancies are terminated by miscarriage, which is disabling";[Footnote 7] and that approximately 10% of pregnancies are complicated by diseases which may lead to additional disability.[Footnote 8] The District Court noted the evidence introduced during the trial, a good deal of it stipulated, concerning the relative cost to General Electric of providing benefits under the Plan to male and female employees,[Footnote 9] all of which indicated that, with pregnancy-related disabilities excluded, the cost of the Plan to General Electric per female employee was at least as high as, if not substantially higher than, the cost per male employee.[Footnote 10]

[Page 429 U.S. 125, 131]

The District Court found that the inclusion of pregnancy-related disabilities within the scope of the Plan would "increase G. E.'s [disability benefits plan] costs by an amount which, though large, is at this time undeterminable." 375 F. Supp., at 378. The District Court declined to find that the present actuarial value of the coverage was equal as between men and women,[Footnote 11] but went on to decide that even

[Page 429 U.S. 125, 132]

had it found economic equivalence, such a finding would not in any case have justified the exclusion of pregnancy-related disabilities from an otherwise comprehensive nonoccupational sickness and accident disability plan. Regardless of whether the cost of including such benefits might make the Plan more costly for women than for men, the District Court determined that "[i]f Title VII intends to sexually equalize employment opportunity, there must be this one exception to the cost differential defense." Id., at 383.

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arose under the Equal Protection Clause of the Fourteenth Amendment, and not under Title VII, 519 F.2d, at 666-667. The dissenting opinion disagreed with the majority as to the impact of Geduldig, 519 F.2d, at 668-669. We granted certiorari to consider this important issue in the construction of Title VII.[Footnote 12]

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funded entirely from contributions deducted from the wages of participating employees, at a rate of 1% of the employee's salary up to an annual maximum of $85. In other relevant respects, the operation of the program was similar to General Electric's disability benefits plan, see 417 U.S., at 487-489.

We rejected appellee's equal protection challenge to this statutory scheme. We first noted:

"We cannot agree that the exclusion of this disability from coverage amounts to invidious discrimination under the Equal Protection Clause. California does not discriminate with respect to the persons or groups which are eligible for disability insurance protection under the program. The classification challenged in this case relates to the asserted underinclusiveness of the set of risks that the State has selected to insure." Id., at 494.

This point was emphasized again, when later in the opinion we noted:

"[T]his case is thus a far cry from cases like Reed v. Reed, 404 U.S. 71 (1971), and Frontiero v. Richardson, 411 U.S. 677 (1973), involving discrimination based upon gender as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition - pregnancy - from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable

[Page 429 U.S. 125, 136]

The Court of Appeals was therefore wrong in concluding that the reasoning of Geduldig was not applicable to an action under Title VII. Since it is a finding of sex-based discrimination that must trigger, in a case such as this, the finding of an unlawful employment practice under 703 (a) (1), Geduldig is precisely in point in its holding that an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all.

There is no more showing in this case than there was in Geduldig that the exclusion of pregnancy benefits is a mere "pretex[t] designed to effect an invidious discrimination against the members of one sex or the other." The Court of Appeals expressed the view that the decision in Geduldig had actually turned on whether or not a conceded discrimination was "invidious" but we think that in so doing it misread the quoted language from our opinion. As we noted in that opinion, a distinction which on its face is not sex related might nonetheless violate the Equal Protection Clause if it were in fact a subterfuge to accomplish a forbidden discrimination. But we have here no question of excluding a disease or disability comparable in all other respects to covered diseases or disabilities and yet confined to the members of one race or sex. Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability. The District Court found that it is not a "disease" at all, and is often a voluntarily undertaken and desired condition, 375 F. Supp., at 375, 377. We do not therefore infer that the exclusion of pregnancy disability benefits from petitioner's plan is a simple pretext for discriminating against women. The contrary arguments adopted by the lower courts and expounded by our dissenting Brethren were largely rejected in Geduldig.

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a prima facie violation of Title VII can be established in some circumstances upon proof that the effect of an otherwise facially neutral plan or classification is to discriminate against members of one class or another. See Washington v. Davis, 426 U.S. 229, 246-248 (1976). For example, in the context of a challenge, under the provisions of 703 (a) (2),[Footnote 13] to a facially neutral employment test, this Court held that a prima facie case of discrimination would be established if, even absent proof of intent, the consequences of the test were "invidiously to discriminate on the basis of racial or other impermissible classification," Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). Even assuming that it is not necessary in this case to prove intent to establish a prima facie violation of 703 (a) (1), but cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-806 (1973), the respondents have not made the requisite showing of gender-based effects.[Footnote 14]

As in Geduldig, respondents have not attempted to meet the burden of demonstrating a gender-based discriminatory effect resulting from the exclusion of pregnancy-related disabilities from coverage.[Footnote 15] Whatever the ultimate

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probative value of the evidence introduced before the District Court on this subject in the instant case, at the very least it tended to illustrate that the selection of risks covered by the Plan did not operate, in fact, to discriminate against women. As in Geduldig, we start from the indisputable baseline that "[t]he fiscal and actuarial benefits of the program . . . accrue to members of both sexes," 417 U.S., at 497 n. 20. We need not disturb the findings of the District Court to note that neither is there a finding, nor was there any evidence which would support a finding, that the financial benefits of the Plan "worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program," id., at 496. The Plan, in effect (and for all that appears), is nothing more than an insurance package, which covers some risks, but excludes others, see id., at 494, 496-497.[Footnote 16] The "package" going to relevant identifiable groups we are presently concerned with - General Electric's male and female employees - covers exactly the same categories of risk, and is facially nondiscriminatory in the sense that "[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not." Id., at 496-497. As there is no proof that the package is in fact worth more to men than to women, it is impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer's disability-benefits plan is less

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than all-inclusive.[Footnote 17] For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, which results from the facially evenhanded inclusion of risks. To hold otherwise would endanger the commonsense notion that an employer who has no disability benefits program at all does not violate Title VII even though the "underinclusion" of risks impacts, as a result

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of pregnancy-related disabilities, more heavily upon one gender than upon the other.[Footnote 18] Just as there is no facial gender-based discrimination in that case, so, too, there is none here.

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in connection with employment. . . . [Benefits] shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities." 29 CFR 1604.10 (b) (1975).[Footnote 19]

In evaluating this contention it should first be noted that Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations pursuant to that Title. Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975).[Footnote 20] This does not mean that EEOC guidelines are not entitled to consideration in determining legislative intent, see Albemarle, supra; Griggs v. Duke Power Co., supra, at 433-434; Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 (1973). But it does mean that courts properly may accord less weight to such guidelines than to administrative regulations which Congress has declared shall have the force of law, see Standard Oil Co. v. Johnson, 316 U.S. 481, 484 (1942), or to regulations which under the enabling statute may themselves supply the basis for imposition of liability, see, e. g., 23 (a), Securities Exchange Act of 1934, 15 U.S.C. 78w (a). The most comprehensive statement of the role of interpretative rulings such as the EEOC guidelines is found in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), where the Court said:

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A few weeks later, in an opinion letter expressly issued pursuant to 29 CFR 1601.30 (1975), the EEOC's position was that "an insurance or other benefit plan may simply exclude maternity as a covered risk, and such an exclusion would not in our view be discriminatory," App. 735.

We have declined to follow administrative guidelines in the past where they conflicted with earlier pronouncements of the agency. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 858-859, n. 25 (1975); Espinoza v. Farah Mfg. Co., supra, at 92-96. In short, while we do not wholly discount the weight to be given the 1972 guideline, it does not receive high marks when judged by the standards enunciated in Skidmore, supra.

There are also persuasive indications that the more recent EEOC guideline sharply conflicts with other indicia of the proper interpretation of the sex-discrimination provisions of Title VII. The legislative history of Title VII's prohibition of sex discrimination is notable primarily for its brevity. Even so, however, Congress paid especial attention to the provisions of the Equal Pay Act, 29 U.S.C. 206 (d),[Footnote 21] when it amended 703 (h) of Title VII by adding the following sentence:

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defined in Geduldig, or a showing of gender-based effect, there can be no violation of 703 (a) (1).

Footnote 16 That General Electric self-insures does not change the fact that it is, in effect, acting as an insurer, just as the State of California was acting in Geduldig, 417 U.S., at 492.

Footnote 17 Absent proof of different values, the cost to "insure" against the risks is, in essence, nothing more than extra compensation to the employees, in the form of fringe benefits. If the employer were to remove the insurance fringe benefits and, instead, increase wages by an amount equal to the cost of the "insurance," there would clearly be no gender-based discrimination, even though a female employee who wished to purchase disability insurance that covered all risks would have to pay more than would a male employee who purchased identical disability insurance, due to the fact that her insurance had to cover the "extra" disabilities due to pregnancy. While respondents seem to acknowledge that the failure to provide any benefit plan at all would not constitute sex-based discrimination in violation of Title VII, see n. 18, infra, they illogically also suggest that the present scheme does violate Title VII because:

"A female must spend her own money to buy a personal disability policy covering pregnancy disability if she wants to be fully insured against a period of disability without income, whereas a male without extra expenditure is fully insured by GE against every period of disability." Supplemental Brief for Respondents on Reargument 11. Yet, in both cases - the instant case and the case where there is no disability coverage at all - the ultimate result is that a woman who wished to be fully insured would have to pay an incremental amount over her male counterpart due solely to the possibility of pregnancy-related disabilities. Title VII's proscription on discrimination does not, in either case, require the employer to pay that incremental amount. The District Court was wrong in assuming, as it did, 375 F. Supp., at 383, that Title VII's ban on employment discrimination necessarily means that "greater economic benefit[s]" must be required to be paid to one sex or the other because of their differing roles in "the scheme of human existence."

Footnote 18 Respondents tacitly admit that this situation would not violate Title VII. They acknowledge that "GE had no obligation to establish any fringe benefit program," Brief for Respondents 143. Moreover, the difficulty with their contention that General Electric engaged in impermissible sex discrimination is vividly portrayed in their closing suggestion that "[i]f paying for pregnancy discriminates within the sphere of classification by sex, so does the failure to pay," Response of Respondents to Reply Brief for Petitioner on Reargument 7. As that statement, and its converse, indicate, perceiving the issue in terms of "sex discrimination" quickly places resolution of this issue into a no-win situation. See also Supplemental Brief for Respondents on Reargument 59 ("[W]e believe that imposing on employees either unequal costs when benefits are equal or unequal benefits when costs are equal violates the right of each individual employee to be treated equally with each individual employee of the opposite sex . . ."). Troublesome interpretative problems such as this reinforce our belief that Congress, in prohibiting sex-based discrimination in Title VII, did not intend to depart from the longstanding meaning of "discrimination," cf. Jefferson v. Hackney, 406 U.S. 535, 548-549 (1972).

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with implementation of the Act, but also rejects the unanimous conclusion of all six Courts of Appeals that have addressed this question. See Communications Workers v. American Tel. & Tel., 513 F.2d 1024 (CA2 1975), cert. pending, No. 74-1601; Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199 (CA3 1975), vacated on jurisdictional grounds, 424 U.S. 737 (1976); Gilbert v. General Electric Co., 519 F.2d 661 (CA4 1975) (this case); Tyler v. Vickery, 517 F.2d 1089, 1097-1099 (CA5 1975); Satty v. Nashville Gas Co., 522 F.2d 850 (CA6 1975), cert. pending, No. 75-536; Hutchison v. Lake Oswego School Dist. No. 7, 519 F.2d 961 (CA9 1975), cert. pending, No. 75-1049.

I

This case is unusual in that it presents a question the resolution of which at first glance turns largely upon the conceptual framework chosen to identify and describe the operational features of the challenged disability program. By directing their focus upon the risks excluded from the otherwise comprehensive program, and upon the purported justifications for such exclusions, the Equal Employment Opportunity Commission, the women plaintiffs, and the lower courts reason that the pregnancy exclusion constitutes a prima facie violation of Title VII. This violation is triggered, they argue, because the omission of pregnancy from the program has the intent and effect of providing that "only women [are subjected] to a substantial risk of total loss of income because of temporary medical disability." Brief for EEOC as Amicus Curiae 12.

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the Court studiously ignores the undisturbed conclusion of the District Court that General Electric's "discriminatory attitude" toward women was "a motivating factor in its policy," 375 F. Supp. 367, 383 (ED Va. 1974), and that the pregnancy exclusion was "neutral [neither] on its face" nor "in its intent." Id., at 382.2

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therefore, proceeds to a discussion of purported neutral criteria that suffice to explain the lone exclusion of pregnancy from the program. The Court argues that pregnancy is not "comparable" to other disabilities since it is a "voluntary" condition rather than a "disease." Ibid. The fallacy of this argument is that even if "non-voluntariness" and "disease" are to be construed as the operational criteria for inclusion of a disability in General Electric's program, application of these criteria is inconsistent with the Court's gender-neutral interpretation of the company's policy.

For example, the characterization of pregnancy as "voluntary"3 is not a persuasive factor, for as the Court of Appeals correctly noted, "other than for childbirth disability, [General Electric] had never construed its plan as eliminating all so-called `voluntary' disabilities," including sport injuries, attempted suicides, venereal disease, disabilities incurred in the commission of a crime or during a fight, and elective cosmetic surgery. 519 F.2d, at 665. Similarly, the label "disease" rather than "disability" cannot be deemed determinative since General Electric's pregnancy disqualification also excludes the 10% of pregnancies that end in debilitating miscarriages, 375 F. Supp., at 377, the 10% of cases where pregnancies are complicated by "diseases" in the intuitive sense of the word, ibid., and cases where women recovering from childbirth are stricken by severe diseases unrelated to pregnancy.4

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Moreover, even the Court's principal argument for the plan's supposed gender neutrality cannot withstand analysis. The central analytical framework relied upon to demonstrate the absence of discrimination is the principle described in Geduldig: "There is no risk from which men are protected and women are not . . . [and] no risk from which women are protected and men are not." 417 U.S., at 496-497, quoted, ante, at 138. In fostering the impression that it is faced with a mere underinclusive assignment of risks in a gender-neutral fashion - that is, all other disabilities are insured irrespective of gender - the Court's analysis proves to be simplistic and misleading. For although all mutually contractible risks are covered irrespective of gender, but see n. 4 supra, the plan also insures risks such as prostatectomies, vasectomies, and circumcisions that are specific to the reproductive system of men and for which there exist no female counterparts covered by the plan. Again, pregnancy affords the only disability, sex-specific or otherwise, that is excluded from coverage.5 Accordingly, the District Court appropriately remarked:

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"[T]he concern of defendants in reference to pregnancy risks, coupled with the apparent lack of concern regarding the balancing of other statistically sex-linked disabilities, buttresses the Court's conclusion that the discriminatory attitude characterized elsewhere in the Court's findings was in fact a motivating factor in its policy." 375 F. Supp., at 383.

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interpretations in this area. These prior decisions, rather than providing merely that Commission guidelines are "entitled to consideration," as the Court allows, ante, at 141, hold that the EEOC's interpretations should receive "great deference." Albemarle Paper Co. v. Moody, supra, at 431; Griggs v. Duke Power Co., supra, at 433-434; Phillips v. Martin Marietta Corp., 400 U.S. 542, 545 (1971) (MARSHALL, J., concurring). Nonetheless, the Court today abandons this standard in order squarely to repudiate the 1972 Commission guideline providing that "[d]isabilities caused or contributed to by pregnancy . . . are, for all job-related purposes, temporary disabilities . . . [under] any health or temporary disability insurance or sick leave plan . . . ." 29 CFR 1604.10 (b) (1975). This rejection is attributed to two interrelated events: an 8-year delay between Title VII's enactment and the promulgation of the Commission's guideline, and interim letters by the EEOC's General Counsel expressing the view that pregnancy is not necessarily includable as a compensable disability. Neither event supports the Court's refusal to accord "great deference" to the EEOC's interpretation.

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both through the pursuit of its normal adjudicatory functions8 and by engaging in comprehensive studies with such organizations as the President's Citizens' Advisory Council on the Status of Women. See, e. g., Address of Jacqueline G. Gutwillig, Chairwoman, Citizens' Advisory Council, cited in App. 1159. These investigations on the role of pregnancy in the labor market coupled with the Commission's "review . . . [of] its case decisions on maternity preparatory to issuing formal guidelines," id., at 1161, culminated in the 1972 guideline, the agency's first formalized, systematic statement on "employment policies relating to pregnancy and childbirth."

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programs are not creatures of a social or cultural vacuum devoid of stereotypes and signals concerning the pregnant woman employee. Indeed, no one seriously contends that General Electric or other companies actually conceptualized or developed their comprehensive insurance programs disability-by-disability in a strictly sex-neutral fashion.10 Instead, the company has devised a policy that, but for pregnancy, offers protection for all risks, even those that are "unique to" men or heavily male dominated. In light of this social experience, the history of General Electric's employment practices, the otherwise all-inclusive design of its disability program, and the burdened role of the contemporary working woman, the EEOC's construction of sex discrimination under 703 (a) (1) is fully consonant with the ultimate objective of Title VII, "to assure equality of employment opportunities and to eliminate those discriminatory practices and devices which have fostered [sexually] stratified job environments to the disadvantage of [women]." McDonnell Douglas Corp. v. Green, 411 U.S., at 800.

I would affirm the judgment of the Court of Appeals.

[Footnote 1] General Electric's disability program was developed in an earlier era when women openly were presumed to play only a minor and temporary

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role in the labor force. As originally conceived in 1926, General Electric offered no benefit plan to its female employees because "`women did not recognize the responsibilities of life, for they probably were hoping to get married soon and leave the company.'" App. 958, excerpted from D. Loth, Swope of G. E. Story of Gerard Swope and General Electric in American Business (1958). It was not until the 1930's and 1940's that the company made female employees eligible to participate in the disability program. In common with general business practice, however, General Electric continued to pursue a policy of taking pregnancy and other factors into account in order to scale women's wages at two-thirds the level of men's. Id., at 1002. More recent company policies reflect common stereo-types concerning the potentialities of pregnant women, see, e. g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 644 (1974), and have coupled forced maternity leave with the nonpayment of disability payments. Thus, the District Court found: "In certain instances it appears that the pregnant employee was required to take leave of her position three months prior to birth and not permitted to return until six weeks after the birth. In other instances the periods varied . . . . In short, of all the employees it is only pregnant women who have been required to cease work regardless of their desire and physical ability to work and only they have been required to remain off their job for an arbitrary period after the birth of their child." 375 F. Supp. 367, 385. In February 1973, approximately coinciding with commencement of this suit, the company abandoned its forced-maternity-leave policy by formal directive.

[Footnote 2] The Court of Appeals did not affirm on the basis of this finding, since it concluded that "the statute looks to `consequences,' not intent," and "[a]ny discrimination, such as that here, which is `inextricably sex-linked' in consequences and result is violative of the Act." 519 F.2d 661, 664.

[Footnote 3] Of course, even the proposition that pregnancy is a voluntary condition is overbroad, for the District Court found that "a substantial incidence of negligent or accidental conception also occurs." 375 F. Supp., at 377. I may assume, however, for purposes of this argument, that the high incidence of voluntary pregnancies and the inability to differentiate between voluntary and involuntary conceptions, except perhaps through obnoxious, intrusive means, could justify the decision-maker's treating pregnancies as voluntarily induced.

[Footnote 4] The experience of one of the class plaintiffs is instructive of the reach of the pregnancy exclusion. On April 5, 1972, she took a pregnancy leave, delivering a stillborn baby some nine days later. Upon her return

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home, she suffered a blood clot in the lung, a condition unrelated to her pregnancy, and was rehospitalized. The company declined her claim for disability payments on the ground that pregnancy severed her eligibility under the plan. See id., at 372. Had she been separated from work for any other reason - for example, during a work stoppage - the plan would have fully covered the embolism.

[Footnote 5] Indeed, the shallowness of the Court's "underinclusive" analysis is transparent. Had General Electric assembled a catalogue of all ailments that befall humanity, and then systematically proceeded to exclude from coverage every disability that is female-specific or predominantly afflicts women, the Court could still reason as here that the plan operates equally: Women, like men, would be entitled to draw disability payments for their circumcisions and prostatectomies, and neither sex could claim payments for pregnancies, breast cancer, and the other excluded female-dominated disabilities. Along similar lines, any disability that occurs disproportionately in a particular group - sickle-cell anemia, for example - could be freely excluded from the plan without troubling the Court's analytical approach.

[Footnote 6] The cryptic "but cf." citation to McDonnell Douglas Corp. v. Green, (1973), ante, at 137, is perhaps the most mystifying. McDonnell involved a private nonclass action under 703 (a) (1) of Title VII in which the plaintiff explicitly complained that he was discharged from employment for racial, rather than licit, motives. 411 U.S., at 796. In such a case, where questions of motivation openly form the thrust of an individual plaintiff's complaint, the "effects" that company policies may have had on an entire class of persons understandably are only tangentially placed in issue, see id., at 805 n. 19. Even so, the Court expressly held that a prima facie violation of Title VII could be proved without affirmatively demonstrating that purposeful discrimination had occurred. Instead, the Court concluded that such an illicit purpose

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is inferable from the interplay of four factors which together reveal that the employers' policies have worked to disadvantage the complainant vis-a-vis other prospective employees. See id., at 802. Only if the employer then satisfies the burden of articulating "some legitimate, non-discriminatory reason for the employee's rejection," ibid., must the latter actually seek to establish an intent to discriminate. Id., at 804. Even at this juncture, however, McDonnell makes clear that statistical evidence of the racial composition of the labor force - that is, a statistical showing of adverse impact on the protected group of which the individual plaintiff is part - will be persuasive evidence that the failure to rehire the particular complainant "conformed to a general pattern of discrimination against" his group. Id., at 805. Thus, McDonnell went far in allowing proof of "effect," even in the setting of an individualized rather than group claim of discrimination.

Equally unacceptable is the implication in the penultimate paragraph of the opinion, ante, at 145, that the Fourteenth Amendment standard of discrimination is coterminous with that applicable to Title VII. Not only is this fleeting dictum irrelevant to the reasoning that precedes it, not only does it conflict with a long line of cases to the contrary, infra, at 153 and this page, but it is flatly contradicted by the central holding of last Term's Washington v. Davis, 426 U.S. 229, 239 (1976): "We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today."

[Footnote 7] See Boston Chapter, NAACP v. Beecher, 504 F.2d 1017, 1020 (CA1 1974); United States v. Wood, Wire & Metal Lathers, Local Union 46, 471 F.2d 408, 414 n. 11 (CA2 1973); Pennsylvania v. O'Neill, 473 F.2d 1029 (CA3 1973) (en banc); United States v. Chesapeake & Ohio R. Co., 471 F.2d 582, 586 (CA4 1972); United States v. Hayes Int'l Corp., 456 F.2d 112, 120 (CA5 1972); United States v. Masonry Contractors Assn. of Memphis, Inc., 497 F.2d 871, 875 (CA6 1974); United States v. Carpenters, 457 F.2d 210, 214 (CA7 1972); United States v. N. L. Industries, Inc., 479 F.2d 354, 368 (CA8 1973); United States v. Ironworkers Local 86, 443 F.2d 544, 550-551 (CA9 1971); Muller v. United States Steel Corp., 509 F.2d 923, 927 (CA10 1975); Davis v. Washington, 168 U.S.

[Page 429 U.S. 125, 155]

App. D.C. 42, 46, 512 F.2d 956, 960 (1975), rev'd on constitutional grounds, (1976).

Indeed, following Griggs, Congress in 1972 revised Title VII, and expressly endorsed use of the "effect only" test outlined therein in identifying "increasingly complex" "forms and incidents of discrimination" that "may not appear obvious at first glance." See H. R. Rep. No. 92-238, p. 8 (1972).

[Footnote 8] For synopses of the Commission's positions regarding pregnancy and sex discrimination adopted in the course of administrative decisionmaking and litigation activities, see the EEOC's Annual Reports to Congress.

[Footnote 9] Lau held that the failure to provide special language instruction to Chinese-speaking students in San Francisco schools violated the ban against racial or national origin discrimination contained in 601 of the Civil Rights Act of 1964. The Court concluded that the Act, as interpreted by the administrative regulations promulgated by the Department of Health, Education, and Welfare addressed "effect[s] [to discriminate] even though no purposeful design is present," and ultimately sought to further the broad goal of insuring "a meaningful opportunity to participate in the [schools'] educational program . . . ." 414 U.S., at 568. Faced with such a generalized objective, the Court repudiated the analysis of the Court of Appeals which had relied upon San Francisco's commitment of equal educational offerings and resources to every child as the basis for concluding that Chinese students have suffered no discrimination due to the failure to adjust the school program to remedy their unique language deficiencies. Instead, the Court agreed that the anti-discrimination language fairly can be read "to require affirmative remedial efforts to give special attention to linguistically deprived children." Id., at 571 (STEWART, J., concurring). Similarly, given the broad social objectives that underlie Title VII, see infra, at 160, and General Electric's apparent unhesitancy to take into account the unique physical characteristics of their male workers in defining the breadth of disability coverage, see supra, at 152, ample support appears for upholding the EEOC's view that pregnancy must be treated accordingly.

[Footnote 10] See, e. g., n. 1, supra.

[Page 429 U.S. 125, 162]

rule discriminates on account of sex; for it is the capacity to become pregnant which primarily differentiates the female from the male. The analysis is the same whether the rule relates to hiring, promotion, the acceptability of an excuse for absence, or an exclusion from a disability insurance plan. Accordingly, without reaching the questions of motive, administrative expertise, and policy, which MR. JUSTICE BRENNAN so persuasively exposes, or the question of effect to which MR. JUSTICE STEWART and MR. JUSTICE BLACKMUN refer, I conclude that the language of the statute plainly requires the result which the Courts of Appeals have reached unanimously.

[Footnote 1] The word does, however, appear in a number of statutes, but has by no means been given a uniform interpretation in those statutes. Compare FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948) (Robinson-Patman Act) with NLRB v. Great Dane Trailers, 388 U.S. 26, 32-35 (1967) (National Labor Relations Act).

[Footnote 2] Washington v. Davis, 426 U.S. 229, 238-248 (1976).

[Footnote 3] Quite clearly Congress could not have intended to adopt this Court's analysis of sex discrimination because it was seven years after the statute was passed that the Court first intimated that the concept of sex discrimination might have some relevance to equal protection analysis. See Reed v. Reed, (1971).

[Footnote 4] Griggs v. Duke Power Co., 401 U.S. 424, 429-432 (1971).

[Footnote 5] It is not accurate to describe the program as dividing "`potential recipients into two groups - pregnant women and nonpregnant persons.'" Ante, at 135. Insurance programs, company policies, and employment contracts all deal with future risks rather than historic facts. The classification

[Page 429 U.S. 125, 162]

is between persons who face a risk of pregnancy and those who do not.

Nor is it accurate to state that under the plan "`[t]here is no risk from which men are protected and women are not.'" Ibid. If the word "risk" is used narrowly, men are protected against the risks associated with a prostate operation whereas women are not. If the word is used more broadly to describe the risk of uncompensated unemployment caused by physical disability, men receive total protection (subject to the 60% and 26-week limitations) against that risk whereas women receive only partial protection.

[Page 429 U.S. 125, 163]

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