The opinion of the court was delivered by: DUFFY
KEVIN THOMAS DUFFY, D. J.
Several individual female employees of General Motors Corporation ("GM"), the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC ("IUE") and five of IUE's locals which represent these employees have brought this action, approved for certification as a class action with the individually named plaintiffs as class representatives, 72 F.R.D. 523 at 527 (S.D.N.Y. 1976), challenging certain provisions of GM's employee disability program as violative of Title VII of the Civil Rights Act of 1964 (Title VII), specifically Section 703(a), 42 U.S.C. § 2000e-2(a). Count I of the complaint alleges that the disability plan's six-week limitation on payments for disabilities arising from pregnancy and childbirth in contrast to payments of up to 52 weeks for other disabilities offends Title VII. Count II contests defendant's now discontinued requirement of forced maternity leave. Count III alleges as discriminatory defendant's failure to pay sickness and accident benefits to female employees disabled as a result of undergoing necessary bilateral tubal ligation operations; i.e., surgical sterilizations.
Relying on the Supreme Court's opinion on General Electric Co. v. Gilbert, 429 U.S. 125, 50 L. Ed. 2d 343, 97 S. Ct. 401 (1976), decided after this case was filed, defendant has moved, pursuant to Rule 12(c), F.R.Civ. P., for judgment dismissing Counts I and III for failure to state claims upon which relief can be granted. The class and union plaintiffs each has cross moved, pursuant to Rule 15(a), F.R. Civ. P., for leave to file amended complaints so as to state claims under the New York State Human Rights Law, New York Executive Law § 290, et seq., paralleling each of the three federal claims, and under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 for breach of the collective bargaining agreement between GM and plaintiff unions based on GM's purported denial of disability benefits for bilateral tubal ligations. The union plaintiffs have additionally sought leave to replead Counts I, II and III so as to assert separate violations of both Section 703(a)(1) and (2) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) and (2), instead of the general violation of Section 703(a) presently alleged.
Legal Sufficiency of Count I
In General Electric Co. v. Gilbert, supra, a class of women employees of General Electric Company challenged that company's exclusion of pregnancy-related disability benefits from coverage under its employee disability plan, which provided for a maximum of 26 weeks of benefit for any one continuous period of disability or successive periods due to related causes other than pregnancy, as violative of Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1). The District Court for the Eastern District of Virginia, 375 F. Supp. 367, after trial on the merits, found that General Electric had discriminated on the basis of sex in the operation of the plan, and the Court of Appeals for the Fourth Circuit affirmed, 519 F.2d 661. However, the Supreme Court reversed, relying on its decision in Geduldig v. Aiello, 417 U.S. 484, 41 L. Ed. 2d 256, 94 S. Ct. 2485 (1974), in which a state-operated disability insurance system which excluded pregnancy-related disabilities withstood a facial gender-based discrimination attack mounted on the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States. In holding General Electric's pregnancy-related disability exclusion non-violative of Title VII, the Supreme Court stressed, as it did in Geduldig, that the disability plan represented a gender-free assignment of risks undertaken in accordance with normal actuarial principles, and noted that even if it were unnecessary to prove discriminatory intent to establish a prima facie violation of § 703(a)(1), the Gilbert employees had failed to make the less stringent showing of gender-based discriminatory effect resulting from the pregnancy exclusion.
Plaintiffs argue that the instant case is distinguishable from Gilbert in several material respects. They claim that unlike the plan in Gilbert, the GM plan treats pregnancy as an illness, that it does not exclude pregnancy benefits but rather provides for the receipt of pregnancy related disability payments on a disparate basis from other benefits, that Gilbert applies only in the case of disability resulting from normal pregnancy and not, as here, where disability payments for complications resulting from pregnancy are challenged, and that, in any event, plaintiffs should be given the opportunity to show that the GM six-week limitation on pregnancy benefits has a gender-based discriminatory effect on female employees. They further claim that GM, unlike General Electric in Gilbert, has failed to assert a disparity in the comparative costs of providing disability coverage to male and female employees.
Defendant disputes the factual and legal bases for these distinctions. My consideration of the viability of these distinctions in the aftermath of Gilbert, however, appears to be foreclosed by the recent decision of the Second Circuit in Women In City Government United v. City of New York (Women), 563 F.2d 537 (2d Cir. 1977).
Women was a class action which challenged certain of the City's pregnancy-related policies as violative of the Fifth and Fourteenth Amendments, Title VII and the Civil Rights Act of 1870, 42 U.S.C. § 1981. Included in the class of Women plaintiffs were women who had experienced various types of complications during their pregnancies. See Complaint in Women in City Government United v. The City of New York, Dkt. No. 74 Civ. 304, PP 7, 9, 11, 14. Three distinct types of claims of sex discrimination were raised in the complaint, only the following two of which are here relevant: that the City's health and hospitalization plans offered "substantially fewer benefits for pregnancy and pregnancy-related conditions than for other medical and surgical problems requiring hospital and medical care," Women, 563 F.2d at 539, and that the Welfare Fund excluded temporary disability benefits for pregnancy-related disabilities while providing for other types of disabilities. Id.
The Second Circuit, in affirming on the basis of Gilbert the district court's dismissal of the Title VII claims, drew no distinction between the limited pregnancy-related benefits available under the City's medical plan and the exclusion of such benefits from the City's disability plan. Moreover, the court rejected the plaintiffs' contention that Gilbert would allow them an opportunity to establish discrimination through proof of disparate impact on female employees. The Second Circuit noted that while the Gilbert dictum "theoretically implies the possibility of a case based on disparate impact theory, it hardly amounts to a holding "that if such theory were proved, a prima facie case would have been made." Women, 563 F.2d at 540. Instead, the court reasoned:
An insurance plan is merely a form of compensation. 429 U.S. at 139, n. 17, 97 S. Ct. 401. Discriminatory effect or impact, in this context, is not measured by reference to a single form of compensation, but could be proved only by showing a disparity in the total value of all forms of compensation given to men and women. . . . Thus, if plaintiffs' view were sound, it would require every employer subject to Title VII to determine separately, with respect to race, color, religion, sex or national origin, the value of each type of compensation he provides. Presumably, the disparities that would inevitably be discovered would each have to be justified by a business necessity. . . . To read Title VII so as to require such determinations and justifications to be made by employers, and, concomitantly, by the district courts, would be to impose upon the Act an administrative complexity undreamed of by its draftsmen. Had the Supreme Court wanted the lower federal courts to embark on such a course, it would have been far more explicit in the General Electric opinion; indeed, the entire thrust of recent Title VII decisions appears to point in the opposite direction.
Id. at 541. See also Guse v. J. C. Penney Co., Inc., 562 F.2d 6 (7th Cir. 1977) (failure of pleading to challenge total company benefits as discriminatory precludes inquiry into discriminatory effect.)
Although plaintiffs have attempted to distinguish Women on the grounds that the disability plan challenged in that case excluded pregnancy-related disability benefits, while GM provides for such benefits but for a shorter time period than other benefits, this distinction is without substance in light of the failure of Women's challenge to the "limited pregnancy benefits" feature of the health and hospital insurance plan in that case. Clearly, Count I of the instant complaint falls squarely within the holding of Women, and, as such, must be dismissed.
The fact that this count is brought as violative of Section 703(a) of Title VII, thereby presumably encompassing not only § 703(a)(1), which governed the decision in Gilbert, but also § 703(a)(2),
does not change this result. The pertinent allegations of statutory violation contained in Count I stated that GM "is discriminating against [plaintiffs] with respect to [their] compensation, terms, conditions and privileges of employment because of [their sex]" in violation of "Section 703(a)." (Complaint paras. 17(c), 18, 13). These allegations track the language of § 703(a)(1); despite the purported inclusion of violations of § 703(a)(2),
the complaint cannot fairly be read as challenging the disability limitation under that section. In any event, I note that the complaint in Women similarly alleged a general ...