ON REMAND FROM THE SUPREME COURT Appeal from a judgment entered in the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing plaintiffs' complaint which alleged sex discrimination. The Court of Appeals vacated the judgment for further proceedings not inconsistent with Communications Workers of America v. A.T. & T. Co., 513 F.2d 1024 (2d Cir. 1975), vacated, 429 U.S. 1033, 97 S. Ct. 724, 50 L. Ed. 2d 744, 45 U.S.L.W. 3462 (U.S. Jan. 10, 1977). The Supreme Court vacated and remanded for further consideration in light of General Electric Co. v. Gilbert, 429 U.S. 125, 50 L. Ed. 2d 343,
Mansfield, Timbers and Meskill, Circuit Judges. Mansfield, Circuit Judge concurring.
This action was begun on January 17, 1974, with the filing of a class action complaint. Plaintiffs allege violations of the Fifth and Fourteenth Amendments to the United States Constitution, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 e, and the Civil Rights Act of 1870, 42 U.S.C. § 1981. Plaintiffs also assert claims arising under the New York State Constitution, the Administrative Code of the City of New York, and a New York City Mayoral Executive Order. Jurisdiction over the federal claims is predicated upon 28 U.S.C. § 1343(3), 42 U.S.C. § 1983, and 42 U.S.C. § 2000 e -5(f)(3). The federal courts are alleged to have pendant jurisdiction over the state claims.
The eleven causes of action alleged by the plaintiffs contain three distinct types of claims. The first type is reflected in the first cause of action:
Defendants . . . have . . . discriminated against the plaintiffs in this action in terms and conditions of employment because of sex, in that the health and hospitalization insurance plans negotiated and approved . . . and provided . . . in connection with city employment offer substantially fewer benefits for pregnancy and pregnancy-related conditions than for other medical and surgical problems requiring hospital and medical care.
The fourth cause of action is representative of the second type of claim:
The defendants . . . have discriminated against plaintiffs . . . because of sex, in that the defendants have established and administered [a] Welfare Fund which offers no temporary disability benefits for disability resulting from pregnancy and pregnancy-related conditions, while temporary disability payments are provided for disability resulting from other medical and surgical conditions.
Finally, the seventh cause of action exemplifies the third type of claim:
The defendant City has adopted, maintained and enforced a leave policy which prior to September 1, 1972 discriminated against [plaintiffs] on the basis of sex. The City policy required an employee to report her pregnancy by the fourth month of pregnancy. Female city employees were not permitted to work after the completion of the fifth month of pregnancy without special permission. Pregnant employees were required to submit to a physical examination prior to resuming employment. Accrued sick leave could not be fully utilized by an employee required to take maternity leave. A pregnant employee on maternity leave, after exhaustion of the annual and sick leave permitted to be utilized for maternity leave, lost her coverage under the City's health and hospitalization plans.
The plaintiffs seek injunctive and declaratory relief, as well as actual and punitive damages.
The Supreme Court decided Geduldig v. Aiello, 417 U.S. 484, 41 L. Ed. 2d 256, 94 S. Ct. 2485, on June 17, 1974. In that case, the Court held that a disability insurance system established under California law, which excluded certain disabilities resulting from pregnancy, did not constitute gender-based discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment because "there [was] no risk from which men [were] protected and women [were] not [and] no risk from which women [were] protected and men [were] not." Id. at 496-97 (footnote omitted). In a footnote, the Court explained that
Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.
Id. n.20. The language of this footnote led the district judge to conclude that, absent an allegation of pretext, the plaintiffs' complaint failed to state a claim under Title VII. In the hope of eliminating the need to conduct unnecessary proceedings, the court scheduled argument as to whether, in light of Aiello, the complaint in this action, along with the complaint in a related action, Communications Workers of America v. A.T. & T. Co., should be dismissed.
After the issue was briefed and argued, the district judge dismissed the complaints in both actions with leave to replead and certified to this Court, under 28 U.S.C. § 1292(b), the question of whether Aiello was dispositive in a Title VII case. 379 F. Supp. 679 (S.D.N.Y. 1974). In the Communications Workers case the appeal was allowed, but in this case leave to appeal was denied. The plaintiffs in this case elected not to amend, ...