The Second Pregnancy Case:
General Electric
The loss for pregnant persons was a bad loss for women, but Geduldig v. Aiello had become a bad case the moment it shifted from state to federal courts. Waiting in the wings was another case aimed to attack pregnancy discrimination. In contrast to Geduldig, at each point this case seemed right: the right litigator with the right plaintiffs engaging the right law in the right courts. The case would become known as the General Electric case, and the attorney preparing it, though little known to most Americans, was one of the most successful women lawyers in the history of Supreme Court litigation: Ruth Weyand.
As of the day in 1973 when Williams first heard of Armendariz and thus began her first trip to the Supreme Court, Ruth Weyand had already served as counsel—writing briefs as well as delivering nine oral arguments at the Supreme Court—in more than 140 cases before federal courts in a career spanning more than four decades. And in those oral arguments before the Supreme Court, tackling controversial discrimination and labor issues, Ruth Weyand had never lost.
By the time she was seven years old, Ruth Weyand knew she wanted to be a lawyer. All through her childhood, court decisions in labor and constitutional law had been part of family dinner conversations, often injected by her father, a sociology professor at Grinnell College in Iowa. By age ten she was preparing for the law by winning local debate contests; at the age of fifteen, she enrolled at the University of Chicago.
When she came home from college for her first midyear holiday, an event occurred that she would retell for decades and that a colleague would retell in the pages of the National Law Journal: It was Christmas morning, 1928. Her father turned on the family’s brand-new console radio. On came the voice of a radio announcer, describing preparations being made by a lynch mob to burn a black man. Hearing those words, Weyand became so angry, she recalled to a colleague years later, that “I wanted to go right out and be a ‘Joan d’Arc.’ ” Weyand’s father, wanting not to upset the family, just shut off the radio. Incensed, sixteen-year-old Ruth called him a hypocrite and challenged him to go with her and stop the mob. All he could say was, “If I could stop it from happening I would, but I can’t. The place for your Joan d’Arc act is in the courtroom.”
She agreed. By age seventeen, her undergraduate work finished at a time when most students were still aiming for college, Ruth Weyand was aiming for the University of Chicago Law School. It seemed a good choice, particularly since in 1870 Chicago had become the first school in America to award a law degree to a woman. In 1930, however, it rejected Ruth Weyand. The registrar told her, she later recalled, that “the faculty was not keen on admitting women because they knew we only came to find husbands.”
Seemingly dissuaded from law, Weyand enrolled in Chicago’s graduate school of social service—a field more welcoming to women. That school permitted its students to take courses in law, and in her first term Weyand enrolled only in law school courses. Her grades exceeded those of all two hundred of Chicago’s first-year law students. Convinced, the University of Chicago responded by returning her first-term tuition in social services and admitting her to its law school with a full scholarship. In 1932, she graduated with honors at age twenty.
She then went looking for a job. No law firm, including the ones that employed Weyand’s lower-ranked classmates, would hire her. Six months of rejections led Ruth Weyand back to her law school dean, asking him to make her record look like a man’s. She said she would go to interviews smoking a cigar and wearing a man’s suit. Instead, the dean got on the phone to law firms. Although she eventually found work with a Chicago firm, it strove to keep clients ignorant that a woman was doing their legal work. “I kept submitting briefs with my name reading ‘Ruth Weyand,’ and they kept coming back ‘R. Weyand,’” she told a colleague years later. “If a client saw me, the partners would say ‘Oh, well she just walks the briefs over to court.’”
In 1938, Ruth Weyand escaped the sexism of private practice by moving to Washington and the National Labor Relations Board (NLRB). She rose rapidly to become the attorney in charge of NLRB litigation before the United States Supreme Court. Two of the landmark labor cases she won established that a union selected by a majority of workers may speak for all workers in a unit and that employees may solicit others for union membership while on company property. In addition, as a brief writer she played a part in key race-discrimination cases. Her briefs helped to outlaw discrimination by race in collective bargaining and to outlaw discrimination by race in real estate sales.
And then in 1950 Ruth Weyand began to experience race discrimination firsthand. During the late 1940s, years when she was working along with Thurgood Marshall of the NAACP against racially restrictive real estate covenants, she had fallen in love with another NAACP lawyer, Leslie S. Perry. When they married in 1949, Perry urged her to keep the marriage secret. He worried they would cause controversy, since he was black. In 1950, when word of their marriage became public, his prediction proved true. Multiple articles appeared in major newspapers after Perry’s former wife, from whom he was divorced, sued Weyand for alienating her husband’s affections.
Interracial marriage remained illegal in most states. An Ebony magazine article in 1949 quoted a psychologist’s speculation that “a successful negro male tends to demonstrate his success, maybe unconsciously by seeking a light or white female.” When time came for the birth of their first child, Weyand chose not to use anesthesia out of worry that her son might be at risk because of the surrounding tension. After he was born, someone set fire to Weyand and Perry’s home in Washington while their infant son was inside.
Despite Weyand’s undefeated record arguing at the Supreme Court for the NLRB, it fired her. A front-page article in the Washington Post said that the general counsel of the NLRB “was reported to feel that Miss Weyand’s value to the board has been impaired by the publicity” surrounding her marriage.
Her labor law career continued, however, first with a private law firm and then in 1965 with a union that represented electrical workers and had a particularly large percentage of women workers. There Ruth Weyand played a major role in introducing to America the concept of pay equity or “comparable worth”: the concept that women should be paid as much as men not only for “equal work” (as mandated by the Equal Pay Act of 1963) but also for comparable work. And in the same years at the electrical workers’ union, she won a major victory against what unions saw as the arrogance of a company that bargained with a “take-it-or leave-it” negotiating policy, a tactic that became known as Boulwarism, for that company’s vice president, Lemuel Boulwar. The company was General Electric.
THE IDEAL CASE FOR RUTH WEYAND, involving discrimination by General Electric against pregnant women, began in 1971. That spring, a few workers for General Electric in Salem, Virginia, a small city in the Roanoke valley, read in a newsletter called Keeping Up with the Law, produced by Weyand for her union, that the Equal Employment Opportunity Commission had just issued a decision against a small company that, like big GE, had a disability plan for its workers. That company, also like GE, refused to cover workers whose disabilities arose from childbirth or pregnancy. Such a refusal, the EEOC had ruled, was illegal discrimination.
For decades, the women’s union had tried through bargaining to argue that General Electric’s disability coverage should not exclude, alone among all disabilities, pregnancy disability. Now a part of the U.S. government, the EEOC, seemed inclined to agree with the union. As a first step, a few women working for GE in Salem who were pregnant went to file for disability claims. General Electric refused to give them claim forms. They eventually got the forms and filed claims, which GE then denied.
These women’s stories had the straightforward sound of workers who wanted to work. Barbara Hall, for example, a young woman with dark hair worn in a flip, had been working with General Electric for five years before she learned she was pregnant in March of 1971. Her doctor told her she could work as long as she “felt good.” And, indeed, she continued to feel good enough to work right up until the time her baby was born. But GE’s nurse, following the GE employee handbook, told Barbara Hall that she had to stop working at the end of her sixth month of pregnancy and thus give up her next three months of income. Hall spent five days in the hospital after childbirth and soon afterward applied to return to work. GE told her to wait until six weeks after childbirth. When she called again to begin work, GE told her to wait two more weeks. All told, GE had forced her to lose at least four months of work and income.
When Hall heard that the EEOC had ruled she was entitled to disability payments for the time when General Electric had prohibited her from working, she wanted to apply for them. If they were granted, GE would pay her 60 percent of her regular weekly wage. The other Salem women told similar stories—wanting to work as long as they felt fine, but willing to accept 60 percent disability payments from GE if the company forced them off the job.
To supplement these straightforward but undramatic tales, Weyand and her legal colleagues sought out other stories. As a tale of readiness to work, they found Erma Thomas in Texas. Because her doctor told her that she could stay on the job until she went to the hospital to have her baby, she convinced her GE plant to let her work. She finished her usual shift on a Friday afternoon and gave birth that night. Thomas’ story showed that some women could work even through the entirety of a normal pregnancy.
As a tale of irrationality, they found Emma Furch, also in Texas, who was disabled by a blood clot in her lung. General Electric refused to pay disability benefits because at the same time Furch was also pregnant. Furch’s story showed that pregnancy was used to exclude women from otherwise-earned benefits.
Perhaps most dramatically, as a tale of hardship, they found Sherrie O’Steen. In 1972, O’Steen was working for General Electric in coastal Virginia when she found out she was pregnant, and at about the same time, her husband abandoned her, leaving her to take care of their two-year-old daughter. Sherrie O’Steen had no money to spare. She convinced her foreman to let her work, despite GE’s rules, to the end of her seventh month of pregnancy. When GE “put me out without pay,” as she said, she couldn’t pay her bills. Her electric company cut her off in November just before her son was born, leaving her to raise two children in winter in an unheated and unlighted house with an unusable stove and refrigerator. She and her children endured their cold house for a month and a half until she received a state welfare check in midwinter. As soon as GE let her return to work, six weeks after her child was born, she returned to her job on the assembly line.
With General Electric, which employed one hundred thousand women, Weyand had found a significant target. GE had been a pioneer in the concept of employee benefits, and in the process had created ample evidence that it viewed women as second-class employees. Early on, GE had excluded women from a newly created disability benefit plan on the grounds that “women did not recognize the responsibilities of life,” in the words of a GE president, Gerard Swope, “for they probably were hoping to get married soon and leave the company.”
Discrimination against women, Weyand was able to demonstrate, showed in wage differentials at General Electric. At the end of World War II, for example, the War Labor Board had ordered General Electric to raise women’s wages. The Board’s goal was to reduce “long-standing differentials between rates for women’s jobs and men’s jobs which, it was proven, cannot be justified on the basis of comparative job content.” The differential had been explicitly codified by General Electric: Starting pay for a man in a typical job was 71 cents and for a woman 57 cents. At the end of six months, the man’s pay rose to 92 cents and the woman’s to 74 cents. On this basis, Weyand could argue that GE’s exclusion of women from pregnancy benefits represented merely another part of GE’s systematic wage discrimination against women.
But the biggest advantage of the General Electric case over Geduldig v. Aiello, the California case unwillingly brought to the Supreme Court by Wendy Webster Williams, was not a more experienced litigator or more carefully chosen plaintiffs or a better target for litigation. The big change, one of huge consequence for all cases involving women and discrimination, was a better law, known in legal shorthand simply as Title VII.
TITLE VII HAD TAKEN ITS FINAL FORM in one of the oddest bursts of legislative game-playing in the history of American feminism. And no understanding of what would happen, in not just the General Electric case but in almost all legal battles for women’s rights, could begin without tracing its origins.
Title VII was the employment section of the landmark Civil Rights Act of 1964—introduced by President John F. Kennedy five months before he died and signed by President Lyndon B. Johnson on the one-year anniversary of its introduction. Kennedy had introduced the bill to combat national discrimination against African-Americans and to respond to specific events in the spring and early summer of 1963: “Bull” Connor, the police commissioner of Birmingham, Alabama, sending police dogs on Good Friday to end a march led by the Rev. Martin Luther King Jr.; and Governor George Wallace of Alabama announcing that he would ignore a federal court’s instruction to permit two black students to enter a summer program at the University of Alabama.
Kennedy went on television to proclaim that the nation faced a moral issue “as old as the Scriptures” and “as clear as the Constitution.” Recalling that a century had passed since President Lincoln had ended slavery, he challenged the nation:
If an American, because his skin is dark, cannot eat lunch in a restaurant open to the public; if he cannot send his children to the best public school available; if he cannot vote for the pubic officials who represent him; if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed and stay in his place?
Noting, at the height of the cold war, that we preach freedom to the world, Kennedy continued:
But are we to say to the world—and much more importantly to ourselves—that this is the land of the free, except for the Negroes; that we have no second-class citizens, except Negroes; that we have no class or caste system, no ghettoes, no master race, except with respect to Negroes?
Kennedy’s answer, introduced a week later, was his civil rights bill. It sought sweeping federal power to end discrimination in America. It sought to eliminate the exclusion of blacks from hotels and restaurants, to eliminate segregation in restrooms and schools, and to eliminate barriers to voting. And, under what would become “Title VII,” it sought to end discrimination in employment and create a federal commission to foster equality in the realm of employment opportunities.
Kennedy’s bill met enormous resistance and legendary support, including, two months after the bill’s introduction, a march on Washington that brought two hundred thousand people to the mall, where they heard, among other speeches, Martin Luther King Jr.’s “I Have a Dream.” Despite fierce opposition to that dream from many congressmen, particularly from southern states, Kennedy’s bill was destined to become national law, banning many forms of racial discrimination.
Drafters of the president’s civil rights bill did not seek, however, to reduce discrimination against women, despite the fact that women’s earnings had declined relative to men’s. On average, a woman who worked full-time earned 63.6 percent of a man’s salary in 1957 but only 60.6 percent in 1960.
Such disparities had already led to lobbying by women, during Kennedy’s first years as president, on behalf of what became the Equal Pay Act of 1963. That law had also met powerful counterlobbying by industry groups. Much compromised in its final form, the Act forbade paying a man more than a woman if both did “equal work.” But it allowed an employer to continue paying men more if their higher pay was based on
(i) a seniority system;
(ii) a merit system;
(iii) a system which measures earnings by quantity or quality of production; or
(iv) a differential based on any other factor other than sex.
An employer could also pay men more by claiming that women’s work was not “equal work.” Although much constricted, the Equal Pay Act seemed a major achievement to its hard-working female advocates, many of whom President Kennedy gathered for a signing ceremony in his office on June 10, 1963. Nine days later he introduced his far more sweeping civil rights bill.
In late November of 1963, two days before the death of the president, the new civil rights bill crossed a major legislative hurdle, winning the support of the House Judiciary Committee. Its language attacked many forms of discrimination based on “race, color, religion, or national origin.” It said nothing about sex.
The specter that a great advance in American civil rights would do nothing for women led to mobilization by the National Woman’s Party, for years a leading supporter of an equal rights amendment to the U.S. Constitution—an amendment opposed by the Kennedy administration. The civil rights bill, protested the Woman’s Party (using language that may have served both tactically and as a display of the party’s conservative slant), “would not even give protection against discrimination because of ‘race, color, religion, or national origin,’ to a White Woman, a Woman of the Christian Religion, or a Woman of United States Origin.” The party sent every member of Congress a resolution calling for an amendment that would add sex to the categories covered by Title VII.
Adding sex suited at least one powerful and conservative congressman, Representative Howard Smith of Virginia, an ERA supporter but an attacker of Kennedy’s civil rights bill. If civil rights legislation had to pass, Smith had been arguing since the 1950s, it should at least protect white women. And although he apparently lacked the votes, he would be happy if adding sex could kill the bill. Seeing an opportunity, two congresswomen decided to endorse the addition of sex to Title VII, as part of an odd strategy: Howard Smith would introduce the amendment. His endorsement, they supposed, could win southern and conservative votes that women otherwise would not get.
On February 8, 1964, Smith rose on the House floor to propose an amendment to Title VII of the civil rights legislation: to enlarge its protection against discrimination in employment, he proposed adding the word sex. Much banter followed. Smith read a letter from a woman complaining that many women were cheated out of husbands because too few men could be found. He instructed his colleagues to take note of such “real grievances.” Representative Emanuel Celler, who had introduced the civil rights bill originally in the House, joked that in his house full of women he usually had the last words: “yes, dear.” He then raised a variety of possible problems, many of them unconnected to employment and most of them familiar from long-expressed opposition to the long-proposed equal rights amendment: possible disadvantages to women in alimony payments, custody agreements, and the military draft.
When Celler finished opposing the addition of sex, eleven of the twelve women members of the House rose to support it. They had prepared well. Most articulate, Representative Martha Griffiths of Michigan, a key supporter of the ERA, noted that the laughing responses to the amendment revealed that American women remained second-class citizens. She went on to argue that unless the sex amendment passed, a white woman turned away from a job where only whites work—perhaps washing dishes in a restaurant or teaching politics in a university—would have no recourse. But “if a colored woman shows up and she is qualified,” Griffiths continued, “she is going to have an open entree into any particular field.”
At the end of two hours, a vote was called. An odd coalition aligned briefly—including women from both parties opposed to sex discrimination, Republican men sympathetic to women’s rights, and southern Democrats interested in killing the civil rights bill—in a vote of 168 to 133 to add sex to Title VII’s prohibitions against employment discrimination. Only two days later, the amended bill passed the House, 290 to 130. In a move that would taint Title VII for years, all but one of the men who had spoken for the sex amendment voted against the full bill. And years later, according to Griffiths, Smith told her that he had offered his sex amendment “as a joke.”
Emerging with a surprise vote from one part of Congress did not, however, make the bill law. In the coming months, many women lobbied aggressively to win similar language in the Senate and to overcome major opposition there. Finally the Senate passed a bill that included sex but differed in other terms from the House bill, forcing the House to vote yet again on the sex provision. The House affirmed overwhelmingly, and President Johnson signed the bill that same day, July 2, 1964. Suddenly, at least in certain types of employment, discrimination against women was illegal. But what kinds of discrimination? And who would decide?
To make such decisions regarding discrimination by “race, color, religion, sex, or national origin,” the Kennedy administration proposed creating a commission, on the model of the National Labor Relations Board, to be called the Equal Employment Opportunity Commission, which could issue orders instructing employers to “cease and desist” from discriminatory practices. Before the civil rights bill passed, opponents in the House and Senate managed to strip the commission of most of its proposed powers. Not only could the EEOC not issue orders to ban discriminatory practices; it could not even initiate litigation on behalf of employees who had suffered discrimination. Its limited powers amounted to these: It could receive complaints of discrimination and try to conciliate between employee and employer; if conciliation failed, it could give the employee a right-to-sue letter and could file a brief in the courts on behalf of the employee; it could recommend that the U.S. attorney general prosecute a case that was particularly grave. And, separate from individual cases, it could issue guidelines, which were less powerful than orders and whose legal weight was untested.
THE NEED TO PONDER SEX FREQUENTLY came as a surprise to the EEOC. In its first year, more than a third of all complaints, far more than expected, came from women. To such complaints, the responses of a majority of the early commissioners, according to the one woman among the five EEOC commissioners, ranged typically from “boredom” to “virulent hostility.”
The commissioners’ unease transmitted to their staff. The commission’s first executive director told the secretary of labor that “the Commission is very much aware of the importance of not becoming known as the ‘sex commission.’” His successor expressed his opposition to the idea that men might be forced to hire male secretaries and stated publicly that the sex amendment to Title VII was a “fluke” that had been “conceived out of wedlock.”
Wary of playing sex commission for a bastardized law, the EEOC did not always help women. In one of its earliest decisions, the EEOC ruled that advertisements for jobs could not be segregated by race: the New York Times could not run an ad whose job description announced that “no blacks need apply.” But the EEOC’s five commissioners ruled, by a vote of 3–2, that want ads for jobs could be segregated by sex. Newspaper columns could continue to announce, “Help Wanted—Male” or “Help Wanted—Female.”
Pregnancy seemed the toughest issue for the EEOC to tackle. Not until 1971 could the commission formulate a clear position, thanks in part to the work of two young women lawyers.
The first woman lawyer to join the EEOC was Sonia Pressman Fuentes. Fuentes had graduated Phi Beta Kappa from Cornell and first in her class at the University of Miami School of Law, and she began work as the third lawyer hired in the general counsel’s office at the EEOC, four months after it opened its doors. She had joined the agency to expand civil rights, which to her meant the rights of blacks. But soon she found herself encountering charges of discrimination against women, and sex was right there in Title VII along with race. Because she behaved as if Title VII applied to sex, the general counsel who hired her began calling her a “sex maniac.”
When Fuentes began to ponder pregnancy, she encountered two theories. One said pregnancy was special, since only women could bear children, and thus pregnant women deserved special protection. This first theory connected to a long history of laws designed specially to protect women, such as ones to keep them from working too many hours or too late at night. The second theory said that, as Fuentes and one of her colleagues explained in a 1968 summary, “disability due to pregnancy ought to be treated like any other temporary disability.” Early opinions by the EEOC reflected its perplexity. Issues remained knotty: Could a company terminate a woman when her pregnancy started to show? (Probably not.) Did seniority accumulate during pregnancy leave? (Unclear.)
Such piecemeal opinions on pregnancy could not be used to formulate policy. At the start of the 1970s, five years after the EEOC was founded, Sonia Fuentes was still trying to get the EEOC to endorse a set of guidelines on pregnancy. At that point, she leaned personally toward special treatment. She had traveled to Europe, where some countries guaranteed women a pregnancy leave. Similarly the EEOC, she supposed, should require companies to give women a special paid leave for pregnancy, perhaps for six weeks or so. When she became pregnant with her own daughter in 1971, six weeks sounded about right.
In the fall of 1970, the general counsel’s office of the EEOC made a new hire, Susan Deller Ross. Fresh out of NYU law school, she was arguably the first of the NYU activists. Ross had proposed opening NYU’s Root-Tilden Scholarship to women, a proposal that led to the creation of NYU’s Women’s Rights Committee. Leaving law school, she was delighted to find work at what she believed was the best place in the country to engage with women’s issues: the EEOC.
Ross was in for a surprise. On her first day at the EEOC, one woman said to her, with disapproval in her voice, “I hear you’re one of those feminists.” Soon after, by way of opening banter, a male lawyer with whom Ross would be working launched into a law-school-type hypothetical: What if you have a construction company that has only male workers, and the company has Porta Potties for its male workers? What if it costs a lot of money to get a Porta Potti for a woman? Shouldn’t the cost of getting a new Porta Potti be a reason why the construction company shouldn’t have to hire women?
Ross was stunned. At what should be the best place in the country to promote equal opportunity for women, this male lawyer was arguing that women’s hopes for high-paying jobs should be outweighed by the price of Porta Potties. Ross did not know how her reputation had reached the EEOC ahead of her, but evidently the place hadn’t been looking for feminist attorneys. Now it had one. While at NYU, she interned at the ACLU. When Ross arrived at ACLU offices, she found that two of the ACLU’s women board members were hopping mad. A key committee of the ACLU had just voted, as the entire ACLU had been voting for years, to continue to oppose the equal rights amendment. The ACLU’s grounds were that the ERA might lead to overruling so-called protective labor laws for women. So Ross took on, as an ACLU research project, the task of evaluating these special-treatment laws.
What Ross found was twofold. First, the recently passed Title VII of the Civil Rights Act of 1964 was leading courts to invalidate many such protective labor laws. Second, those invalidations meant good riddance to bad rubbish. Protective labor laws had served for years to “protect” women out of good jobs. A typical provision of such a law might limit the total number of hours women could work, thus allowing women to get home to their children and housework. But many good jobs, such as supervisory jobs, required employees to work—even if only occasionally—for long stretches. Protective labor laws guaranteed that many supervisors must be male. No woman need apply. Other kinds of protective labor laws had subtler effects. If laws made women less efficient or less available for work, for example, employers avoided hiring women altogether.
As Ross’s critique of protective labor laws became known, she was sought out by a number of women in Washington, including Catherine East, the executive secretary of the federal Citizens’ Advisory Council on the Status of Women, a group appointed as advisors by the president of the United States. East, a covert ally of Betty Friedan and (also covertly) Sonia Fuentes in creating the National Organization for Women (NOW), by 1970 had drafted a simple approach to pregnancy that followed theory two: treat it not as something different but as something similar.
When Ross arrived at the EEOC and found the commission backlogged with complaints from pregnant women who were getting fired or were not getting disability insurance, Ross turned to East’s similar-treatment approach. Although at first Fuentes argued for six weeks of guaranteed leave, based on a European model, eventually Ross convinced her and also the commissioners that the EEOC should take an equal-treatment approach to pregnancy. In March of 1972, seven years after the EEOC first began grappling with pregnancy, the commission issued official guidelines:
Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment.
Put simply, the guidelines said that employers had to treat pregnancy disability the same as they treated any other “temporary disability.” If a company provided sick pay or covered hospital costs for a man during an operation and subsequent recuperation, that company must provide sick pay or cover hospital costs for a woman during childbirth and subsequent recuperation. This concept, which came to be known as the “equal treatment” approach to pregnancy, had two clear advantages: First, practically, it could provide grounds to win money for women who were excluded by many disability insurance plans, like California’s and General Electric’s, that refused to help them when their disability was linked to pregnancy. Second, it could guide judges, for it fit pregnancy into existing categories of discrimination. The concept was familiar to the law since the time of Aristotle: likes should be treated alike. So long as the disabling effects of childbirth resembled the disabling effects of men’s medical conditions, women had to be treated as well as men.
BECAUSE THE EEOC WAS CREATED with no power to initiate litigation, from its earliest days the task of convincing judges that an employer was discriminating had fallen to lawyers outside the EEOC. After the group of General Electric women from Virginia read about the EEOC’s ruling, the next step had been for Ruth Weyand to begin planning a case under Title VII, which seemed a far better law for the General Electric case than the Constitution of the United States had been for Geduldig v. Aiello.
Furthermore, under Title VII, Weyand could try her case in the right court. Thanks to a provision created to prevent victims of discrimination from having to bring cases in their hometowns, where they might face entrenched prejudice, she could select among a range of district courts. She chose the court for the Eastern District of Virginia, in Richmond, where Judge Robert R. Merhige Jr. had already ruled that a pregnant schoolteacher could not be forced to leave her job at the end of her fifth month of pregnancy. Judge Merhige’s opinion in that case, Susan Cohen v. Chesterfield County School Board, used language that suited Weyand perfectly: “The maternity policy of the School Board denies pregnant women such as Mrs. Cohen equal protection of the laws because it treats pregnancy differently than other medical disabilities.” Those words, written in May of 1971, perfectly anticipated not only the argument Wendy Webster Williams would soon be making in the case of Carolyn Aiello but also the language Susan Deller Ross would soon be writing into the EEOC pregnancy guidelines. This judge, Ruth Weyand felt sure, saw that pregnancy discrimination was sex discrimination.
THE GENERAL ELECTRIC TRIAL in district court lasted three days. In late July of 1973, Judge Merhige heard testimony from numerous General Electric women, including Erma Thomas and Emma Furch, who came from Texas; Sherrie O’Steen, who came from her new home in Kentucky; and Barbara Hall and Doris Wiley, from the original group of seven at the GE plant in Salem, Virginia. Surrounding their short and clear stories, Judge Merhige heard extensive expert testimony on relevant questions: How did the EEOC first treat pregnancy? How do the government agencies now treat pregnancy? How do physicians view work during pregnancy? How many women do not return to General Electric after pregnancy? How much cost would pregnancy coverage add to disability plans? (To this issue, Judge Merhige expressed “serious doubts that costs mean anything when you are talking about discrimination.”)
Judge Merhige’s behavior left Weyand thinking he was the “friendly judge” she sought. Then for months he issued no decision. As she waited, Weyand supposed he was watching the progress of his earlier Cohen opinion—pregnancy must not be treated “differently than other medical disabilities”—which had battled through a turbulent series of wins and losses in higher courts.
Eleven days after a three-judge panel at the court of appeals affirmed him in Cohen, Merhige agreed to hear the General Electric case. Then in early 1973 the entire court of appeals, its judges sitting en banc, overruled him in Cohen. The court’s chief judge, Clement Haynsworth, announced that no man-made law “can relieve females from all of the burdens” of motherhood.
Three months later, the Supreme Court said it would hear Cohen. Long before that oral argument at the Supreme Court, Ruth Weyand and her GE case reached Merhige’s courtroom.
Finally, his Cohen decision won, in a sense. The Supreme Court overruled the court of appeals in early 1974, and Susan Cohen won—albeit on grounds that differed from Merhige’s original opinion. But a win was a win, and within three months, Judge Merhige issued his long-delayed General Electric opinion, which could now cite, as apparent support, the Supreme Court’s decision.
Despite his months of delay and the trial’s “voluminous records and endless motions,” Judge Merhige’s General Electric opinion announced that the key issues revealed underlying simplicity. Merhige focused his greatest attention on GE’s claim that pregnancy was “voluntary.” To this he gave little credence, remarking that GE covered male employees for such voluntary disabilities as those caused by elective cosmetic surgery and, in an extreme case of voluntary disability, by attempted suicide.
This theme of voluntariness had led General Electric to detailed discussion of the ease of contraception. GE apparently gained boldness from the Supreme Court’s decision in the bitterly divisive abortion case, Roe v. Wade, announced only a few months earlier, that had legalized abortion. At one point during the trial, arguing that women could now control pregnancy, GE’s lawyer suggested that abortion had been reduced to a mere “lunch-hour treatment.”
Responding to such cavalier portrayals of abortion, Judge Merhige reached the essence of what Ruth Weyand had been arguing. He refused to accept GE’s implication that Congress wished, as he put it, that female employees “forego a fundamental right, such as a woman’s right to bear children, as a condition precedent to the enjoyment of the benefits of employment free of discrimination.”
This was a surrender, Judge Merhige continued, that General Electric asked from women only. “While pregnancy is unique to women, parenthood is common to both sexes,” he remarked, and “yet under G.E.’s policy, it is only their female employees who must, if they wish to avoid a total loss of company induced income, forego the right and privilege of this natural state.” Merhige found no difficulty agreeing with the EEOC and with Ruth Weyand that pregnancy discrimination was sex discrimination. Recalling the experience of Sherrie O’Steen, who had been forced to raise her newborn without heat or refrigeration, he continued that only women “are required to undergo the economic hardship of the disability which arises from their participation in the procreative experience.”
Convinced of the case’s “underlying simplicity,” Judge Merhige found numerous other issues not relevant. He refused, for example, to admit Ruth Weyand’s argument about General Electric’s alleged discrimination in years prior to 1964, when Congress enacted Title VII. Further, he declined to consider GE’s arguments that forcing the payment of pregnancy disability benefits would dramatically increase GE’s costs.
Merhige drew his decision from the “great mass of expert testimony,” as he put it, that confirms the obvious: Pregnancy for a time can be physically disabling. Males receive full disability coverage; females do not. General Electric’s male employees and women employees, though “similarly situated,” face “disparate treatment.” From such disparity, Judge Merhige reached his conclusion: “That this is sex discrimination is self evident.” He ruled fully for the female employees of GE, affirming both Weyand’s arguments and the EEOC’s guidelines: pregnancy discrimination is sex discrimination.
Weyand felt delighted. Then two months later the Supreme Court issued its Geduldig v. Aiello decision, declaring that a state insurance program that discriminated against pregnant women was not engaging in unconstitutional sex discrimination, because the state was discriminating not between men and women but between “pregnant women and nonpregnant persons.” Weyand felt doomed.
WHEN THE COURT OF APPEALS AGREED to GE’s request that it review Judge Merhige’s opinion for the district court, Ruth Weyand gained a new ally. Although Weyand was undefeated before the Supreme Court, her experience did not compare to that of her new ally, Beatrice Rosenberg. A high-school classmate of William J. Brennan (now Justice Brennan), Rosenberg had joined the criminal division of the U.S. Justice Department in 1943. In her career there, Rosenberg argued more than thirty cases before the Supreme Court—more cases than any other woman. Then in 1972, she joined the EEOC, where she became a mentor to young lawyers.
To help Ruth Weyand with oral argument at the court of appeals, Rosenberg sent Linda Dorian, who had joined the EEOC right after law school. Dorian found Weyand in her well-worn union offices, low on funding and overflowing with files, and set to work going through piles of documents.
While preparing, they kept worrying which judges would sit before them in the appeals court’s three-judge panel. They least wanted to face Clement Haynsworth, who not only believed that no law could “relieve females” from the burdens of motherhood but also had become notorious five years earlier when Richard Nixon tried to appoint him to the Supreme Court as part of a so-called southern strategy. His past opinions met opposition from civil rights groups and labor unions. Ethics questions ultimately led to his defeat by the Senate in the first rejection of a Supreme Court nominee in four decades.
Eventually Weyand and Dorian learned that they would argue their case to Haynsworth and two of his allies in that earlier pregnancy decision. GE’s lawyers appeared jubilant.
In argument before the court of appeals on January 8, 1975, Weyand and Dorian took turns making parts of the oral argument. One moment that stood out for Dorian came near the end when the GE lawyers had their chance for rebuttal. Dorian, who had given birth to her daughter just before joining the EEOC, felt acutely aware that other women were forced by their employers to choose between a job and a family. GE’s lawyer returned to one of the arguments he had used in district court, telling the court of appeals that women were guaranteed the right to abortion and could eliminate any pregnancy by going to a clinic for a “lunch-hour” treatment. A look of horror, Dorian thought, passed across the judges’ faces. In her own last chance to speak, feeling sure that the judges saw her as a young woman who might have an infant at home, Dorian struck back. Congress when passing Title VII, Dorian insisted, would never have intended to force a woman to choose between her right to be employed and her right to bear a child.
Despite Dorian’s strong finish, Ruth Weyand feared those three judges would hand her a loss, forcing her to appeal. Months passed. While Weyand waited, another shock arrived: the Supreme Court agreed to hear the same legal issue that Weyand had worked so hard to develop in her General Electric case. It would hear a case concerning an insurance company called Liberty Mutual, which, like GE, excluded pregnant women from coverage by its disability insurance.
To Weyand, the Liberty Mutual case had terrible shortcomings. Unlike the GE case, Liberty Mutual reached the Supreme Court with very few details. Based on a single undisputed fact, that Liberty Mutual excluded only pregnancy from its disability coverage, lower courts had ruled that Liberty Mutual had committed sex discrimination in violation of Title VII.
The lawyers for GE shared Ruth Weyand’s distaste for this low-fact case. They knew that Liberty Mutual’s lawyers had, as one lower court pointed out, offered no “evidentiary facts that could arguably give rise to a defense.” If the Supreme Court ruled against Liberty Mutual in this fact-free case, that ruling would probably mean defeat for GE. Hoping that their case could be added to consideration of Liberty Mutual by the Supreme Court, GE’s lawyers wrote to the court of appeals to ask for a quick decision. Instead, the appeals court announced that it would delay deciding General Electric until the Supreme Court decided Liberty Mutual.
One of GE’s attorneys then went to Weyand with a suggestion that, so far as he knew, had no precedent. Because all attorneys in the GE case wanted their facts before the Supreme Court, they should unite in an effort to leapfrog the indecisive court of appeals. Both sides should file a joint petition to the Supreme Court asking that their case be heard.
Weyand felt sure that her case had better facts than Liberty Mutual. Bea Rosenberg at the EEOC agreed. Twenty days after the Supreme Court decided to hear Liberty Mutual, and eight days after the court of appeals refused to decide the GE case, a joint petition reached the Supreme Court asking that it hear the GE case in order to gain detailed evidence about the impact of excluding pregnancy.
Apparently stung by this move to bypass it, the court of appeals changed its plan and, within ten days, announced its delayed decision: by a vote of 2–1, with Chief Judge Haynsworth in the majority, it agreed with Ruth Weyand, Linda Dorian, the EEOC guidelines, and the women of GE. Further, the court ruled that the loss in Geduldig v. Aiello, Wendy Williams’ case, did no damage to Ruth Weyand’s GE case. In discussing what the court called “a well-recognized difference of approach in applying constitutional standards under the Equal Protection Clause as in Geduldig v. Aiello and in the statutory construction of the ‘sex-blind’ mandate of Title VII,” the court seemed to lecture GE’s lawyers on the difference between Williams’ problem under the Constitution and Weyand’s advantage under Title VII. To escape constitutional condemnation, pregnancy discrimination
need only be “rationally supportable” and that was the situation in Aiello. . . . Title VII, however, authorizes no such “rationality” test in determining the propriety of its application. It represents a flat and absolute prohibition against all sex discrimination in conditions of employment.
The decision made a flat condemnation of pregnancy discrimination under Title VII and an absolute distinction between the General Electric case and Geduldig v. Aiello.
Weyand’s case, carefully developed over years, seemed the perfect case to take to the Supreme Court. The justices agreed. They voted to combine Liberty Mutual with General Electric, to be argued in sequence and considered together.
RUTH WEYAND ROSE TO BEGIN her Supreme Court argument on January 20, 1976, as the last in a two-hour succession of litigators that spanned two days. First had come the attorney for Liberty Mutual, who began and ended by hammering home a simple point: this Court’s decision two years before in Geduldig v. Aiello settled this case.
The lawyer for Liberty Mutual, Kalvin M. Grove, relied on Justice Stewart’s nonpregnant persons footnote to make the argument that Ruth Weyand dreaded, following a track laid down by the judge whom Weyand and Linda Dorian had not convinced when they argued at the court of appeals. As Liberty Mutual’s lawyer insisted, all discussion hinges, in the words of that judge,
on whether the exclusion of pregnancy related disability from the disability benefits plan is sex discrimination. If it is not sex discrimination, then . . . there is no Title VII violation.
The lawyer for Sandra Wetzel and the other women suing Liberty Mutual, Howard A. Specter, had little answer to Liberty Mutual’s claim that pregnancy discrimination was not sex discrimination. He spent much time reminding the Supreme Court that the record of his case contained few facts and that Liberty Mutual had offered few defenses other than what he called the “very troublesome” case of Geduldig v. Aiello.
When he searched for evidence against Liberty Mutual’s case, he turned to sections of Ruth Weyand’s ever-expanding brief (which he called the “fat yellow one”) against GE—now 266 pages long, bound in the traditional yellow cover of plaintiffs’ briefs but dwarfing most others in the files of the Supreme Court. He urged the justices to consult Weyand’s pages 121–128 (for a history of the Equal Pay Act of 1963) and then to turn back to pages 106–119 (for a history of EEOC statements on pregnancy since 1965). Nothing he said seemed to make Geduldig v. Aiello less troublesome.
The attorney for General Electric, Theophil C. Kammholz, rose to address the Court late in the afternoon. He faced only eight justices. Harry Blackmun, who had absented himself from the Liberty Mutual case owing to what was understood to be a connection between that insurance company and his former law firm, also chose not to hear the GE case. Kammholz, following Liberty Mutual’s strong showing and acknowledging what he called his own “lack of modesty,” seemed unworried by the need to win five votes from a shorthanded court. Moving quickly to his lunch-hour argument, he declared that modern pregnancies can be reliably planned and readily aborted in what he now called “an in-and-out noon-hour treatment.”
If any justices felt offense that GE was offering lunch-break abortion as its answer to workplace pregnancy, their questions showed none. GE’s lawyer and the justices moved to a discussion of how much women cost to insure and how much longer women live than men, a discussion that led to easy banter. Female longevity brought women a long return on retirement annuities, which, said one justice, is “one of the good things women have going for them, isn’t it?”
“Yes,” said Kammholz, “among others, Your Honor.”
Laughter filled the court, and GE’s lawyer followed his advantage to point to his strongest card, already in play thanks to Liberty Mutual: Geduldig v. Aiello meant that the Supreme Court had already decided that pregnancy discrimination was not sex discrimination—a company could discriminate legally against the pregnant without discriminating illegally against women.
Ruth Weyand, slight in build, standing before the eight justices of the Court, may have appeared to be standing in something of a hole, dug craftily by the preceding hour of argument by corporate attorneys. Among other problems, she needed to establish that her GE case, which had arrived as a caboose behind Liberty Mutual, could add to the Supreme Court’s deliberation. To do so, she piled on facts from her voluminous record on pregnancy discrimination and its harm to women who worked at GE and elsewhere: GE’s long-ago president believed that women hoped to get married and leave the workforce rather than “recognize the responsibilities of life.” GE’s disability plan, though excluding pregnancy disability, paid for “anything a man was ever disabled for” including voluntary hair transplants and voluntary cosmetic surgery. GE’s women, such as Emma Furch and Sherrie O’Steen, suffered when deprived of disability benefits—losing disability payment for a pulmonary embolism that followed closely after a pregnancy, for example, and waiting in an unheated house for the birth of her child.
Weyand’s argument represented the surface of her fat yellow brief. Her case gained depth also from amicus briefs by allies who amounted to a who’s who of women attorneys working on pregnancy and sex discrimination. Many had written already against GE in the court of appeals in 1975, and then against Liberty Mutual when its case rose ahead of GE’s to the Supreme Court, where now their arguments again allied with Weyand’s. For the Women’s Rights Project of the ACLU, Ruth Bader Ginsburg had teamed with Susan Deller Ross (seven months’ pregnant when they filed their brief) to deliver a defense of the EEOC guidelines (which Ross had written) on pregnancy discrimination—and to insist that Title VII demanded that pregnancy discrimination receive rigorous scrutiny rather than the slight scrutiny used by the Court when it ruled that the Constitution did not forbid California’s discrimination against the pregnant in Geduldig v. Aiello. Wendy Webster Williams, still smarting from losing the Aiello case, teamed with her friend Peter Weiner to deliver a brief that condemned employers who forced women to choose between the chance to work and the right to procreate.
The most valuable brief siding with Ruth Weyand was a short one, just thirty-three pages. It represented the labors at the EEOC of Bea Rosenberg and Linda Dorian. Although Dorian was not arguing in tandem with Weyand, as she had at the court of appeals, she and Rosenberg strove to put the government’s arguments behind Weyand at the Supreme Court. Rosenberg had apparently worked, also, to win permission to file any brief supporting Weyand. Solicitor General Robert Bork, whose name would appear as lead author on their brief for the United States and the EEOC, at first, Dorian gathered from Rosenberg, “didn’t want the government to participate.” Not long after Solicitor General Bork had leapt to national attention in 1973 for firing the special prosecutor investigating President Nixon in Watergate, Bork opposed Ruth Bader Ginsburg’s sex discrimination argument in Wiesenfeld.
Rosenberg wanted the government to provide a sharper brief than Weyand’s fat yellow one. The more Weyand’s grew, the more Rosenberg pressed Dorian to “tighten your brief again.” What emerged was taut: (1) Title VII forbids excluding pregnancy-related disabilities from a plan that protects employees against other disabilities. (2) The Geduldig v. Aiello decision stating that the Constitution permits pregnancy discrimination does not prevent the Court from ruling that Title VII forbids pregnancy discrimination.
Beyond all the briefs in her support, Ruth Weyand had another crucial body of opinions helping her at the Supreme Court. All six courts of appeals that had considered pregnancy benefits under Title VII had ruled that pregnancy discrimination violated Title VII’s prohibition on sex discrimination. The many judges of those other federal courts, as Weyand made clear in her brief and in her oral argument to the Court, agreed with her central point: pregnancy discrimination equals sex discrimination.
FOLLOWING HER ORAL ARGUMENT to the Supreme Court, Weyand prepared to wait for the justices’ ruling. Two months afterward, she received a surprise: a unanimous Supreme Court threw out Liberty Mutual. During oral argument, Justice Rehnquist had asked about procedure in the lower courts. Two months later, answering his own questions, he ruled that the judges in both the district court and the court of appeals, misunderstanding a federal rule, had permitted an appeal to proceed prematurely. The district court needed to do more than rule against Liberty Mutual, as it had; it also needed to decide how much Liberty Mutual must pay in compensation to its female employees. Without that ruling, the decision of the district court could not be appealed. Now Ruth Weyand’s GE case, no longer a caboose, had to take the lead against pregnancy discrimination. Another two months later, the Supreme Court finally released its GE opinion. In one sentence, it announced that General Electric would be “restored to calendar for reargument.”
The need to reargue, the attorneys knew, sent them into little-charted territory. Although a few watershed cases—school desegregation (Brown v. Board of Education, argued 1952 and reargued 1953), for example, and liberalized abortion (Roe v. Wade, argued 1971 and reargued 1972)—had led the Court to ask attorneys to argue a case again on a subsequent year’s calendar, rearguments were uncommon. Further, the reasons had seemed clear for those famous rearguments. When the Court asked for reargument in the school desegregation cases of the 1950s, the justices provided lengthy questions to guide attorneys. The first abortion argument occurred before a severely shorthanded Court that was awaiting the arrival in early 1972 of Justices Powell and Rehnquist. For General Electric, however, the attorneys received no guidance.
Speculation among attorneys focused on the absence of Justice Blackmun from the first oral argument. If he skipped the GE argument because of a conflict of interest involving Liberty Mutual, they guessed he would take part at a new argument.
Blackmun’s notes, hidden until the release of his Supreme Court papers in 2004, showed the impact of, if not the reason for, his missing vote. At the justices’ conference, he tallied the votes of a split court: four voting with Weyand (Stevens, Brennan, Marshall, and Powell), three voting with GE (Burger, White, and Rehnquist), and Potter Stewart seemingly so torn that Blackmun marked his vote as “pass.” On the one hand, Stewart believed his own opinion in Geduldig v. Aiello meant that women had suffered “no discrimination.” But he noted that the Court had ruled in 1971 that EEOC guidelines deserved “great deference.” As long as Stewart wavered, Weyand held her lead.
As the second oral argument approached, Blackmun continued to ask himself (with no further explanation in his papers), “Do I recuse”? He was convinced by late summer that the Court was split “4 to 4” on the GE case, suggesting his vote would decide. He expressed long-standing doubts about Potter Stewart’s nonpregnant-persons opinion in Geduldig v. Aiello, which he resented as “a bit of strong-arming in typical PS fashion.” As he mulled, Blackmun wound up jousting with one of his clerks, Donna Murasky—only his second woman clerk among the seventeen clerks who had worked with him on the Court. In a bench memo she typed in preparation for the new GE argument, she called the company’s history of benefits “male-oriented.” Blackmun penciled, in her memo’s margins, “oh, come now?” To her comment that GE had a policy of forcing pregnant women to stop work, he penciled, “so—”. Arguing that Blackmun should side with Weyand, she stated that “I have no idea why Congress bothered to include the sex discrimination provision of the Act” if that provision did not protect pregnant women. Blackmun penciled, “Donna overstates, methinks.”
At the EEOC Bea Rosenberg, unaware that Weyand had a young ally in the chambers of the Court’s pivotal justice, sought to assure Weyand that she did not stand alone at reargument. When Rosenberg urged the U.S. government to join Weyand in oral argument, the Office of the Solicitor General agreed but did not send one of its own attorneys. Instead, Rosenberg got an odd substitute. From within the Justice Department came an assistant attorney general for civil rights, Stanley J. Pottinger. “OK, Linda, here’s the deal,” Rosenberg explained, as Dorian recalled later. “You write the brief, and Stan Pottinger is arguing the case, and it’s our job to get together any materials he needs.”
Stanley Pottinger, articulate and charismatic, was developing a reputation for making sex discrimination a priority in the Civil Rights Division. He had pressed to end discrimination against women in universities, helping to make 1972 what Ruth Bader Ginsburg called “the year of the woman,” and by 1976 had begun a multiyear romance with Gloria Steinem, the editor of Ms. magazine. Although Pottinger believed that pregnancy discrimination constituted discrimination against women, in his role as assistant attorney general he rarely argued a case. Baffled when invited to join the reargument with Weyand, he asked representatives of the solicitor general for their reasoning.
He was being offered a “doomed mission,” Pottinger learned from the solicitor general’s office. He need not take the offer. But if he argued, the advantages included these: he would make a case that he believed in; the Court would see that the government stood with Weyand; and the staff of the solicitor general would avoid arguing a loser. Pottinger accepted.
IN OPENING THE REARGUMENT at the Supreme Court on October 13, 1976, GE’s lawyer was able to move smoothly over his well-paved arguments. Women plan pregnancies. Pregnancy is unique. Women cost more to insure than men. To give disability payments for pregnancy would be to provide “special severance pay to women only” because many pregnant women plan not to return to GE after childbirth. (In an error that the justices did not catch, he stated women’s return rate as only 40 percent. In fact, 40 percent was the figure for those who did not return, and as Weyand often pointed out, 40 percent equaled GE’s annual turnover rate for all employees.) Continuing almost unchallenged by questions, Kammholz hit his key points. Congress in 1964 and the EEOC in 1965 believed that Title VII did not cover pregnancy. Most important, thanks to Justice Stewart’s famous footnote 20 in Geduldig v. Aiello, GE’s pregnancy discrimination could not be called sex discrimination and so “there is . . . no sex discrimination in our case.”
One justice who challenged Kammholz was Blackmun, who, aware his vote was crucial, pressed hard. His questions confirmed that GE excluded medical disabilities that arose as complications of pregnancy, that GE excluded no medical condition other than pregnancy, that GE covered hospitalization for such voluntary procedures as cosmetic surgery, and that GE did not exclude diseases such as sickle-cell anemia that could be suffered disproportionately by a distinct racial group.
Ruth Weyand opened her fifteen minutes of oral argument with efforts to follow the Court’s apparent interest. Taking an opening provided by Justice Blackmun, she pointed out that “there is not a single thing that a man gets disabled by that GE does not cover fully.” She drew also on old themes, such as Sherrie O’Steen awaiting childbirth in an unlighted and unheated house. She corrected GE’s erroneous claim that most women leave work after pregnancy, and then, with time short to challenge claims made by GE in a new “reply brief” that answered her ninety-five-page “supplemental brief,” Weyand asked permission to file yet another brief. At this late point she hit her first major challenge, from a bad direction. Justice Blackmun said he had already been asked to read some 250 pages of her briefing. Did she, he challenged her, “expect that we can absorb that”?
As Ruth Weyand backpedaled, expressing regrets, Blackmun pressed: “Are you going to file another 100 pages?” More backpedaling led to his next question: Did she think that her “61 pages of facts” met the Supreme Court requirement for a “concise statement”? After stating more “regret that you haven’t found the brief helpful,” Ruth Weyand concluded her argument, turning red in the face, struggling to pull her papers together, saying only, “I’m sorry.”
The task of pulling the case together now fell to Stanley Pottinger. Opening his oral argument, Pottinger managed six words: “Mr. Chief Justice, and may it . . .” Justice Byron White interrupted. What rule, he demanded, permitted Pottinger to argue this case “without an order of the Court?”
Dumbfounded, Pottinger began babbling: He said he had not addressed any rule. He understood he was permitted to argue. The government had interpreted the rules of the Court “by indirection.” Pottinger bluffed. He had no idea—and never would—what rule or order White cared about. Attacked upon opening his mouth, Pottinger thought to himself, as he recalled years later, “Boy this is just exactly what everyone predicted.” The justices were signaling, thought Pottinger, “we don’t want you here, and we’re going to blow you out of the water with our opinions. But you just keep on truckin’.”
So he did. Taking aim at the weakness identified by Justice Blackmun’s question about why GE paid for disability from planned cosmetic surgery but not planned pregnancy, he began defining the purpose of Title VII.
Now Justice Stewart cut Pottinger off, raising Stewart’s much-discussed opinion in Geduldig v. Aiello—and then, for some reason, veering to discuss not interpretation but pronunciation. Carolyn Aiello’s last name stumped him, said the justice. He added extra syllables. He pronounced it eye-lee-able.
Pottinger offered eye-yellow as a solution to Stewart’s problem. Then Pottinger tried to say why the Aiello case did not doom his case. Stewart offered little chance. Geduldig v. Aiello made clear, the justice asserted, that a “pregnancy exclusion was not a sex discrimination.” Trucking on, Pottinger reminded the justices of Griggs, the 1971 case urging great deference to EEOC guidelines. Questions came fast. Justices seemed unconvinced. Pottinger sat down feeling he had accomplished his doomed mission.
The argument’s twists confused Linda Dorian, who left the courtroom thinking that Weyand had lost her poise but Pottinger had kept his. Why, she asked Rosenberg, had Pottinger’s first words faced such a blistering attack from Justice White? “Linda,” Bea replied, as Dorian recalled, “he didn’t want the government involved. He wanted to be free to rule against us, for the plaintiffs, without having to rule against the government.” White seemed a lost vote, along with Stewart. Blackmun, who chastised Weyand about padding her briefs but also probed GE about covering cosmetic surgery, remained a hope. Scribbling notes during oral argument, he had scored Weyand worse than both men, calling her “pretty bad.” But he had listened closely to Pottinger, taking more notes on his argument than on those of the other two attorneys combined.
THE GENERAL ELECTRIC DECISION followed oral argument by only two months. On December 7, 1976, the Supreme Court announced its decision.
Justice Rehnquist had emerged from the justices’ conference in October with the chance to draft for an unsure majority. Powell, while inclining against the women in conference, said he was “still not firm.” Stewart, swinging away from deference to the EEOC, was now opining that his Geduldig v. Aiello opinion “still is correct.” But Justice Brennan, preparing to dissent along with Marshall and Stevens, was going to work on a draft that seemed designed to lure Stewart back by arguing that years of careful EEOC study “culminated” in the 1972 EEOC guidelines against pregnancy discrimination. And although Blackmun seemed ready to vote against the women, he faced new opposition in his chambers. Diane Wood, the third woman clerk he ever hired, went to work on him—opposing Rehnquist’s draft and proposing mitigating changes. Allied with her and convinced that Rehnquist did not yet have five votes, another Blackmun clerk, William Block, drafted similar changes, which Blackmun proposed to Rehnquist with a hint that Blackmun’s vote depended on them. Stewart urged Rehnquist to follow Blackmun’s softening proposals.
Rehnquist rebuffed them all. Apparently he had his votes. Rehnquist’s unmitigated opinion, in final form as in draft, defined the court’s task as straightforward: rule that the decision in Geduldig v. Aiello guaranteed General Electric’s win. To meet this task, he set out to show that the intent of Congress in 1964 was misrepresented by the EEOC pregnancy guidelines of 1972 and well represented by the Supreme Court’s Geduldig decision of 1974.
Discrediting the EEOC proved easy. In his opinion, Rehnquist reprinted letters (dug up by GE) from the mid-1960s when the EEOC feared becoming known as the “sex commission.” In 1966, the EEOC general counsel had written that Title VII permitted companies to cut off salaries to disabled workers when their disabilities “result from pregnancy and childbirth.” This was the same general counsel, Charles Duncan, who had labeled Fuentes a “sex maniac” for urging the commission to fight sex discrimination. Similarly, Duncan had written for the EEOC that a corporate insurance plan could, without violating Title VII, “simply exclude maternity as a covered risk.” Surely, insisted Justice Rehnquist, the intent of Congress in 1964 finds truer representation in EEOC interpretations of 1966 than in revisions of 1972.
Rehnquist sought to align that intent with his majority on the current Supreme Court. What Congress in 1964 intended by discrimination was left unclear, he contended, because Congress left discrimination undefined in Title VII. Faced with that congressional lapse, where should the Supreme Court look for congressional intent concerning the meaning of discrimination under Title VII—and whether Title VII proscribed pregnancy discrimination? Why not look, Justice Rehnquist suggested, to the Court’s own decisions construing the equal protection clause of the Fourteenth Amendment? After all, the contexts—by which he presumably meant the Fourteenth Amendment and Title VII—were “not wholly dissimilar.”
That double negative (not . . . dis-), plus softening (not wholly dis-), sufficed for Justice Rehnquist. It blurred distinctions between law shaped by constitutional amendment and by congressional legislation, and distinctions between the 1860s and the 1960s. His next sentence leapt to Geduldig v. Aiello and his Court’s decision that California had a constitutional right to discriminate against pregnant women. Since the Aiello case had analyzed a “strikingly similar” exclusion of pregnancy benefits in the “not wholly dissimilar” context of the Fourteenth Amendment, that case seemed relevant. The Court’s Geduldig v. Aiello decision in 1974 could help the Court determine in 1976 what Congress intended in 1964 when it forbade companies “to discriminate . . . because of . . . sex.”
Justice Stevens resisted. “Of course,” he wrote in dissent, “when it enacted Title VII of the Civil Rights Act of 1964, Congress could not possibly have relied on language which this Court was to use a decade later.”
His dissent did not suffice. Five other justices—Burger, Stewart, White, Powell, and Blackmun—joined Rehnquist in favor of General Electric. They confirmed that Stewart’s footnote 20 in Geduldig v. Aiello expressed the intent of Congress: American law permits discrimination that favors nonpregnant persons and hurts pregnant women. Case closed.