EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER V. LOCKHEED MISSILES & SPACE COMPANY, INC. No. 82-1006 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the Equal Employment Opportunity Commission, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute and regulation involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-9a) is reported at 680 F.2d 1243. The orders of the district court (App. B, infra, 10a-11a; App. C, infra, 12a-13a) are not reported. JURISDICTION The judgment of the court of appeals (App. D, infra, 14a) was entered on July 6, 1982, and a petition for rehearing (App. E, infra, 15a) was denied on September 27, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE AND REGULATION INVOLVED Section 701(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. (Supp. IV) 2000e(k) provides: 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, childbirth, 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 2000e-2(h) of this title shall be interpreted to permit otherwise. This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion: Provided, That nothing herein shall preclude an employer from providing abortion benefits or otherwise affect bargaining agreements in regard to abortion. Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1), provides in pertinent part: It shall be an unlawful employment practice for an employer -- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin * * *. Subsection 10(b) of the EEOC's Guidelines on Discrimination Because of Sex (29 C.F.R. 1604.10(b)) provides in pertinent part: Disabilities caused or contributed to by pregnancy, childbirth, or related medical conditions, for all job related purposes, shall be treated the same as disabilities caused or contributed to by other medical conditions, under any health or disability insurance or sick leave plan available in connection with employment. Written or unwritten employment policies and practices involving matters such as * * * payment under any health or disability insurance or sick leave plan, formal or informal, shall be applied to disability due to pregnancy, childbirth, or related medical conditions on the same terms and conditions as they are applied to other disabilities. * * * Questions and Answers Nos. 21 and 22 (29 C.F.R. Part 1604 App.) explain this regulation as follows: 21. Q. Must an employer provide health insurance coverage for the medical expenses of pregnancy-related conditions of the spouses of male employees? Of all the dependents of all employees? A. Where an employer provides no coverage for dependents, the employer is not required to institute such coverage. However, if an employer's insurance program covers the medical expenses of spouses of female employees, then it must equally cover the medical expenses of spouses of male employees, including those arising from pregnancy-related conditions. But the insurance does not have to cover the pregnancy-related conditions of other dependents as long as it excludes the pregnancy-related conditions of the dependents of male and female employees equally. 22. Q. Must an employer provide the same level of health insurance coverage for the pregnancy-related medical conditions of the spouses of male employees as it provides for its female employees? A. No. It is not necessary to provide the same level of coverage for the pregnancy-related medical conditions of spouses of male employees as for female employees. However, where the employer provides coverage for the medical conditions of the spouses of its employees, then the level of coverage for pregnancy-related medical conditions of the spouses of male employees must be the same as the level of coverage for all other medical conditions of the spouses of female employees. For example, if the employer covers employees for 100 percent of reasonable and customary expenses sustained for a medical condition, but only covers dependent spouses for 50 percent of reasonable and customary expenses for their medical conditions, the pregnancy-related expenses of the male employee's spouse must be covered at the 50 percent level. QUESTION PRESENTED Whether a company discriminates against male employees in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, by providing an employee health insurance plan that offers coverage for medical expenses of spouses, except for their pregnancies. STATEMENT 1. Congress enacted the Pregnancy Discrimination Act of 1978 ("PDA"), Pub. L. No. 95-555, 92 Stat. 2076 et seq., in response to this Court's decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), which held that pregnancy-related classifications did not, on their face, constitute sex-based classifications under Title VII. The PDA amended the "Definitions" section of the Title (Section 701) to add subsection (k), which provides that "(t)he 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 * * *" (42 U.S.C. (Supp. IV) 2000e(k)). /1/ Within seven months after the PDA's passage, the Equal Employment Opportunity Commission revised its Guidelines on Discrimination Because of Sex to reflect changes required by the Act. The final Guidelines, and an Appendix of 37 Questions and Answers, were published on April 20, 1979. 44 Fed. Reg. 23804-23809, codified at 29 C.F.R. Part 1604 & App. The Answers to Questions 21 and 22 set forth the Commission's position that Title VII, as amended by the PDA, requires that "if an employer's insurance program covers the medical expenses of spouses of female employees, then it must equally cover the medical expenses of spouses of male employees, including those arising from pregnancy-related conditions" (26 C.F.R. Part 1604 App., Answer No. 21; see page 3, supra.). /2/ 2. Respondent offered an employee health insurance plan at its Sunnyvale City, California, facility that provided coverage for all medical conditions of dependants except that it excluded any coverage for pregnancies of any dependents (R. 20 at 2-3; Exh. A at 14-16). /3/ On September 14, 1979, Mark Jennings, an employee at Sunnyvale, filed a charge with EEOC alleging that respondents had unlawfully discriminated against him by refusing to provide insurance coverage for his wife's hospitalization due to pregnancy (R. 14 at 2, 20 at 5; Exh. F). After the Commission completed processing of Jennings' charge, it filed an enforcement suit against respondent on October 6, 1980, under Section 706 of Title VII, 42 U.S.C. 2000e-5 (R. 1). The district court granted respondent's motion for summary judgment (App. B, infra, 10a-11a) relying on Newport News Shipbuilding & Dry Dock Co. v. EEOC, 510 F. Supp. 66 (E.D. Va., 1981), /4/ and denied a motion for reconsideration (App. C, infra, 12a-13a). The court of appeals affirmed (App. A, infra, 1a-9a), and also denied a motion for rehearing (App. E, infra, 15a). REASONS FOR GRANTING THE PETITION The question in this case is identical to that presented in Newport News Shipbuilding & Dry Dock Co. v. EEOC, cert. granted, No. 82-411 (Dec. 6, 1982), and the decision below is in square conflict with the decision of the Fourth Circuit. As we explain in our brief in response to the petition in Newport News, /5/ that question -- whether the amended Title VII permits employers to provide health insurance plans that offer less coverage for pregnancies of spouses than for their other medical expenses -- is an important and recurring one, and a uniform national rule is needed. We also explain in our Newport News brief why we believe that the court of appeals correctly decided that case. For the same reasons, the decision below is in error. CONCLUSION The petition for a writ of certiorari should be held pending the decision in Newport News Shipbuilding & Dry Dock Co. v. EEOC, No. 82-411, and should then be disposed of as appropriate in light of that decision. Respectfully submitted. REX E. LEE Solicitor General MICHAEL N. MARTINEZ Acting General Counsel Equal Employment Opportunity Commission DECEMBER 1982 /1/ The complete text of the new definition is reprinted at page 2, supra. /2/ The guidelines also make clear that an employer is not obliged to provide the same level of health insurance coverage for pregnancy-related expenses of the spouses of male employees as it provides for its female employees. Pages 3-4, supra. /3/ The plan was amended effective December 1, 1980 (two months after suit was filed) to provide coverage for the pregnancy of the spouse of an employee on the same basis as any illness (R. 20 at 3). That amendment, of course, does not affect employees who were denied benefits for spousal pregnancies between the effective date of the PDA and December 1, 1980. /4/ That decision was reversed by a panel of the Fourth Circuit (667 F.2d 448 (1982)) and the panel decision was adopted in an en banc opinion (682 F.2d 113 (1982)). Newport News is currently pending on certiorari (No. 82-411). /5/ We are sending respondents a copy of that brief. Appendix Omitted