A look at how employers used pregnancy and marriage as grounds to terminate female employees and the developments in federal law-the Civil Rights Act of 1964, the Family Medical Leave Act, and the Americans with Disabilities Act-that led unions to negotiate protections for women in their collective bargaining agreements.
Apple pie, motherhood and Chevrolet are supposedly icons of American life, or so says the General Motors advertisement. However, it is not so clear that apple pie is all that good for you and the Chevy is not selling as well as some foreign cars. Which makes one wonder just how well working mothers are faring in the workplace. Are they doing well or are they discriminated against because of their marital status and ability to give birth, some of the most overlooked issues in the arbitration literature. In an attempt to fill the gap, this paper examines how arbitrators have construed collective bargaining agreements in grievances involving marriage and pregnancy.1
The Civil Rights Act of 19642 makes it improper for employers to stereotype women based on their gender, a characteristic beyond their control. Nevertheless, women, who now make up slightly more than 50% of the U.S. population, are still subjected to illegal discrimination at their place of employment (as opposed to being denied employment in the first place) because of their ability to give birth.
Gender may be considered by employers only if it is a legitimate occupational qualification for the routine operation of the business.3 In other words, female employees who are qualified and able to perform the job may not be precluded from doing so.4 Conversely, if a woman is unable to perform the work (either because she is not strong enough or she would be subjected to hazardous substances that could harm her unborn child), either permanently or temporarily, the employer may take these gender-related facts into consideration.
Grievances alleging gender discrimination can involve claims that a female employee was denied a promotion or a partnership because she is female, has children, is pregnant, or could have children in the future. They also can involve claims that male employees received preferential treatment with respect to wages or seniority matters for the same reasons, or that she was terminated or subject to discipline because of the need to care for her children.
Female Flight Attendants and Teachers
During the 1960s and '70s, marriage and motherhood were considered serious liabilities for women who wished to become flight attendants on commercial airlines. (Flight attendants were then often referred to as "stewardesses" and "stewards.")
At that time, the majority of airline customers were businessmen, so the airlines hired pretty young women to serve drinks and food on airline flights, not women we think of as homemakers and mothers. The airlines used images of sexy young female flight attendants in their advertising to attract new male customers. (There was little or no advertising directed at women.) To maintain this image, they restricted female flight attendants from marrying or becoming pregnant. New hires were required to represent that they would remain single while employed by the airline, or would give up their job when they became pregnant.
In the late 1960s, there were a series of grievance arbitration cases pitting flight attendants against the airlines. In a case involving Western Airlines,' the labor agreement permitted management to discharge their flight attendants for pregnancy. When management discharged the grievant under this provision, she filed a claim with the Equal Employment Opportunity Commission (EEOC), which sent her a letter stating that the discharge was probably contrary to the Civil Rights Act of 1964. Despite the violation of public policy embodied in federal civil rights laws, the three-member panel of arbitrators upheld the discharge, reasoning that as a creature of the contract, the panel had no authority to overturn the discharge.
The Western Airlines case was by no means an aberration. It was common in the airline industry to find collective bargaining agreements that provided management with specific authority to discharge female flight attendants when they became pregnant. These agreements even authorized discharge six months after a flight attendant married. The employers' rationale was that it would be a waste of time and money to train women for these jobs because once they married, they could be expected to become pregnant and then leave the job.
Unfortunately, it was common for arbitrators to uphold discharges based on marriage and pregnancy/ Arbitrators allowed these discriminatory attitudes toward women to continue and their decisions no doubt perpetuated the airlines' use of these provisions.
Other industries that predominantly employed women, like public education, were similarly insensitive to women's rights. For example, collective bargaining agreements with teachers commonly called for teachers to give up their jobs at some point during pregnancy.
With the passage of the 1964 Civil Rights Act and its application to gender matters by the courts, the public's stereotyped view of women and other groups began to fade. This change in public opinion led to greater acceptance of the notion that women should be treated equally in the workplace under collective bargaining agreements.
At the same time, arbitrators began to recognize the primacy of public policy in deciding labor disputes and they began to apply applicable external law in their arbitration decisions. It was a lot easier for arbitrators to do this when the collective bargaining agreement itself stated that nothing in the contract should be in contravention to law.
Since at least 1992, the EEOC has been applying the 1964 Civil Rights Act to pregnancy and childbearing issues. In 1992, the agency received 3,385 complaints based on pregnancy, in which more than $3.7 million in monetary awards were issued. By 2004, the EEOC handled 4,512 pregnancy-related complaints, 27% of which were found meritorious, resulting in $11.3 million in monetary settlements.
Arbitrator John Hogan applied federal civil rights law in interpreting a collective bargaining agreement that required female teachers to vacate their jobs by the end of their fifth month of pregnancy. He ruled that this provision constituted unlawful gender discrimination and therefore was invalid.7 His award clearly explained the application of external law in voiding the portion of the labor agreement permitting gender discrimination. He wrote:
The automatic rule that all teachers must vacate their positions at the end of the fifth month of pregnancy irrespective of their ability to perform their work satisfactorily without injury to themselves is arbitrary and results in unnecessary financial loss and hardship. Since the rule, by its nature, applies only to women and to a condition attendant to their sex it results in discrimination in the terms and conditions of employment on the basis of sex, Article XII, H, 5 is, therefore, void under Article I, H (clause requiring the contract not contravene law) and because it contravenes public policy as embodied in Tide VII of the Civil Rights Act. The Board of Education may not require all teachers to vacate their positions at the end of the fifth month of pregnancy.8
In the 1960s, Braniff Airlines' collective bargaining agreement with flight attendants was silent on the issues of pregnancy and marriage. So the airline required these employees to execute individual employment agreements representing that they would remain single while employed by Braniff. In a grievance arbitration centering on this representation, arbitrator Gray found that, since the collective bargaining agreement did not grant the airline authority to discharge flight attendants who married, marriage was not a proper cause for summary discharge.9 He also cited a provision adopted by Eastern Air Lines that did not permit summary discharge immediately upon marriage. He wrote:
[T]he majority of this Board is also impressed with new agreement of the Eastern Air Lines and the Air Line Stewards and Stewardesses, effective April 15, 1965, which reads, "The Company may at its option release from employment female flight attendants at any time following the expiration of six months of marriage or upon pregnancy." It is, therefore, the finding of the Board that this new agreement with Eastern Air Lines ... is indicative of more recent trend of thought concerning married stewardesses.10
In other words, what the arbitrator considered progressive in the late 1960s was a provision that allowed the airline to terminate a female flight attendant six months after marriage or pregnancy, whichever came first, but not immediately upon the marriage itself. This "more current trend of thought" nevertheless perpetuated disparate treatment of women because of their ability to bear children.
