'Equal' Continues: General Electric

7.The Second Pregnancy Case: General Electric

Ruth Weyand, the attorney on General Electric, was one of the most successful women lawyers in the history of Supreme Court litigation. She had never lost at the Supreme Court. After first being denied admission she graduated from the University of Chicago Law School in 1932 at the age of twenty, but could not find a job. She eventually found a job as “R. Weyand.”

In 1949 she married Leslie S. Perry, a black man, and they kept their marriage secret. When it became known, she was fired from the National Labor Relations Board, where she had worked since 1938. She continued to practice labor law and was instrumental in introducing the concept of pay equity or comparable worth. As a union lawyer, she negotiated with General Electric.

In 1971, The EEOC issued a ruling that it was illegal for a company to refuse to cover disabilities related to pregnancy. Title VII of the Civil Rights Act of 1964 had made inroads on employment discrimination, building on the Equal Pay Act of 1963. The addition of sex to Title VII was controversial and Rep. Howard Smith of Virginia, who had added the language, reportedly said he meant it as a joke. Nevertheless, the EEOC was born—-underweight, but alive. It did not want to be a “sex commission” and did not always help women.

It had no power to initiate litigation but Weyand sued GE in District Court in the Eastern District of Virginia, where Judge Robert R. Merhige Jr. had previously ruled that a pregnant schoolteacher could not be forced to leave her job in her fifth month of gestation. That case, Cohen v Chesterfield County School Board, was affirmed by a three-judge panel but overruled by an en banc court, which was then reversed by the Supreme Court.

GE was tried before Judge Merhige while Cohen was pending and he did not rule until after it was decided at the Supreme Court. He ruled that pregnancy discrimination was sex discrimination because males receive full disability coverage and females do not—disparate treatment.

Two months later the Supreme Court issued Aiello, which upheld discrimination between pregnant women and nonpregnant persons.

While the case was pending at the appellate court, the Supreme Court granted cert in case involving Liberty Mutual that also excluded pregnant women from disability insurance. Because both sides in GE wanted their case to make the law in pregnancy discrimination under Title VII, as opposed to the Liberty Mutual case the lawyers filed a joint petition asking for immediate review at the Supreme Court. This was unavailing, but the Court of Appeals affirmed 2-1. Liberty Mutual and GE would go to the Supreme Court together.

The case was argued in January 1976. Liberty Mutual was dismissed as being appealed prematurely, and the court then ordered GE reargued in October, 1976. Justice Blackmun, who had recused in the first case because of ties to Liberty Mutual, participated knowing that the rest of the justices were evenly divided. Blackmun eventually sided with GE, and joined with the majority in a 6-3 decision that Geduldig controlled. Justices Marshall, Brennan and Stevens dissented.