MILLER-WOHL CO INC v COMMISSIO
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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 T W R A 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: Decided: Filed: D C ; 8 1984 h ! Clerk September 26, 1984 December 28, 1984 Mr. Justice John C. Court. This is an Sheehy delivered the Opinion of the 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) effect on Miller-Wohl s no-leave policy created a disparate women who become pregnant, compared employees who do not become pregnant. to those 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. The policy and purpose of Title VII and the PDA is (4) to eliminate discrimination in employment policies. Miller-Wohl ' s (5 violated the MJILA. termination of Tamara directly 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. not agree that violates MMLA Title VII because We do 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 power in provisions of the PNLA and Title VII reconciled. Courts (7) have discrimination cases to legislative enactments recognized save the by the judicial legality of doctrine of questioned extension, extending the same benefits to those who would otherwise be discriminated against. judicial extension. This case presents a proper one for 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. week) She was employed to work full time (34-36 hours a 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 During the next two and soon after told her supervisor. 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. terminated pregnancy Tamara's On August 27, 1979, Killer-Wohl employment, undoubtedly because her 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 Commissioner's conclusions. of Labor and 1981). court concurred in the Mil-ler-Wohl Co. v. Commissioner Industry, 515 F.Supp. 1264 (U.S.D.C. Mont. 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. court determined none of the issues. that Miller-Wohl' s compJ-aints That Instead it concluded 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 . 2 d (U.S.C.A. 9, 1982). 1088 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 p r e e m p t e d by T i t l e s VII a n d X I o f t h e Fed-era1 C i v i l R i g h t s Act. The Commissioner and T a n a r a a p p e a l from t h e d e c i s i o n o f the District Court, which brings case the to us for determination. 11. The MJIT,A was adopted ( f o r m e r l y S e c t i o r ! 39-7-201, 49-2-310, -311, 13y -208, (1.983).) MCA, the legislature MCA, in 1975 now S e c t i o n (1978); It provides i n pertinent part: " M a . t e r n i t y Leave -- [Jnlawful --o f Employers. Acts It shal.1 b e unlawful-for a n employer o r h i s a g e n t t o : " (1) t e r m i n a t e a women' s employment b e c a u s e o f h e r pregnancy; "(2) r e f u s e t o g r a n t t o t h e employee a r e a s o n a b l e l e a v e o f absence f o r such pregnancy;. . ." The MMLA is a legislative recognition economic mores i n American f a m i l y l i f e . of changing We are told that in 4 0 % o f American h o u s e h o l d s t h e r e i s a w o r k i n g w i f e o r m o t h e r . A growing number of single young spreads across upwardly-mobile hiplane, need support themselves, or I n family households t h e need f o r t h e m s e l v e s and c h i l d r e n . two p a y c h e c k s women the economic professionals two w i n g s w o r k i n g to spectrum. !Yuppies) , stay aloft. Even like a Economic n e c e s s i t y h a s c o n v e r g e d w i t h t h e growing i n s i s t e n c e o f women for equal legislative opportunity in all enactments such as fields the to PWLA. bring The about biblical i m p r e c a . t i o n t h a t t h e male s h a l l e a t h i s b r e a d by t h e s w e a t o f h i s brow h a s been b r o a d e n e d ; Eve i s now i n c l u d e d . . C o n g r e s s h a s r e s p o n d e d t o t h e s e f o r c e s by i n c l u d i n g i n the Civil Rights discrimination in Act of employment 1964 because provisions of gender. outlawj-ng 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 the States propriety of Supreme an Equal Court refused Employment to recognize 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 . Pregnancy Di.sability Act, Section 701 (k)(PDA) include the 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 a t 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 4 7 4 9 , 4 7 5 1 (1978). In adopting the Civil Rights Act of 1964, and the PDA, Congress indicated its intention consistent with those acts. to permit Section 4 2 U.S.C state action 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 of VII 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: o regnancy-related "Reinstatment of j b following Upon signifyiEg her intent to leave of absence. returnat the end of her leave of absence, such employee ~ h a . be~ reinstated to her original job or 1 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 a s t o 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 consistent with the Tamara purposes contends of that Title VII the MMLA which is 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 further in contends argument that gender-based protection itself violetes with respect to legislation based classifica.tion analysis the on for ~ n d need Title VII; Commissioner the only Equal Protection pregnancy is purpose of be justified not a equal on a reasonable basis, but even so, the MMLA could survive the more difficult test for gender-based classifications, in tha-t the W L A bears a substantial relationship to an important state interest. The Montana Human Rights Commission, appearing amicus curiae, supports the constitutjonality and validity of the B J I A contending that the Uf,, 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 Montana con£er citizens a benefit the legislature deny all intended to . 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 i s 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 applied; and that the MWLA action test should be 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 W L A 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. are located in Montana. Four such stores 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, a n 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 following reasons only: to be excused for the " 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. Miller-Wohl had granted some Undoubtedly, evidence tha-t 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. 411 U.S. because McDonald Douglas Corp. v. Green (1973), 792. We decline to take t.hat position, however, 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 Would you like to requested and not granted? A . 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? made ava-ilable to her, yes. "Q. Did you discuss it with her? A. A, It was 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. determine this case practice Miller-Wohl in We therefore the circumstance that extended no leave of in actual 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. violated this statute. Miller-Wohl. clearly 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 discharge. to back pay and penalties for her wrongful 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), 77 L.Ed.2d U.S. , 103 S.Ct. 2622, 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 7 0 3 1 a ) ( 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, discrimination based that on the PDA makes pregnancy it clear that is on its face discrimination based on sex and that it is discriminatory to exclude pregnancy coverage from an otherwise inclusive benefits p an. l 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. employment. She was in fact terminated from her 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 ... ; women affected by pregnancy . . . 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 2000e (k)) Section 701.(k), PDA (42 U.S.C. " . When Title VII as amended by properly, it becomes clear the PDA is understood that the discharge from her employment of a woman for her pregnancy, without more, is an unlawful practice under Title VII and the PDA. gender-based discrimination. It is a 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 pregnancy. disability came relatively early in her 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. some period of Inevitably, however, childbirth invol-ves 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. Congressional and Administrative News 4749, 4753 (1978). Code 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) ( 19 8 1 ) , 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 project, as long as it received funding. for a temporary 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: " ' [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 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. appears to us to be The no-leave policy therefore gender-based discrimination employer in violation of Title VII and the PDA. by a.n 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 walking through a presented; or inconsistencies, legal issues in this case is like hall it is such . of mirrors, like so many examining facets are of j-nterpretations of differing bagful the a federal and state statutes are given us. Miller-Wohl violated MMLA; violated Title VII, and the PDA, it claims not to have 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 - disabled, as a - is 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 section 49-2-310, MCA, that apply subsections to all (1) and (2) of 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 - - disabled who is 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 discriminatory, employees protective, and in that preferential, manner is 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-pplicationof 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 " 42 U.S.C. 2000elk). medical conditions . . . F e agree with Judge Paul G. Hatfiel-d, who determined J 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. cases before Fed. 537, 554, S 3[bl are annotations of 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 discriminatory under Title VII. the fact that such maternity such a policy to be The reasons given include leave policies have a foreseeable adverse effect on the terms and coilditions of female employment, without simil.arly placed males. an equivalent effect In the absence of a upon 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. International Union, supra, supports our Graphic Arts 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. JL WA 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. 370, 90 S.Ct. 1792, 1810, 26 L.Ed.2d 308, 333, 361, (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 VII. is indeed sex based d.iscrj.minationin violation of Title 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 requiring overtime pay for women but not for men. law 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 %\
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