Full opinion text
MEMORANDUM MERHIGE, District Judge. Plaintiffs, female employees of the defendant, Eastern Air Lines, Inc. (Eastern), bring this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., to redress alleged sexually discriminatory employment practices. Local 550 of the Airline Stewards and Stewardesses Association (local .550) and Local 553 of the Transport Workers Union of America (TWU Local 553) are also named as defendants. The plaintiffs seek declaratory, injunctive and monetary relief. Jurisdiction is attained pursuant to 42 U.S.C. § 2000e-5(f). A trial has been held on the issue of liability and the Court is prepared to issue its findings of fact and conclusions of law. I. FINDINGS OF FACT A. Parties (1) The action styled Burwell et al. v. Eastern Air Lines, Inc., et al. was brought by Catherine Burwell and Jean Proctor against Eastern and the two union defendants alleging sex discrimination in the maintenance and administration of the maternity and benefits policies applicable to Eastern flight attendants. (2) Sharyn Clayton filed a similar action against Eastern in the United States District Court for the Northern District of Alabama. (3) Plaintiff Burwell, who has been an Eastern flight attendant for approximately twelve years, had had the following maternity history since 1970: (a) Burwell notified Eastern approximately May 13, 1970 that she was pregnant. She gave birth on October 7, 1970. (b) Burwell again became pregnant in late 1974. That pregnancy terminated in a miscarriage in November, 1974. (c) On April 8, 1976, Burwell again advised Eastern that she was pregnant. Her expected delivery date was mid-August, 1976. (4) Plaintiff Proctor, who has been an Eastern flight attendant for approximately eleven years, has had the following maternity history since 1970: (a) Proctor notified Eastern approximately May 15, 1972 that she was pregnant. She gave birth on September 21, 1972. (b) Proctor notified Eastern approximately September 3, 1974 that she was again pregnant. She gave birth on January 28, 1975. (5) The defendant Eastern is a Delaware corporation doing business in Virginia where it is engaged in the transportation of passengers across state lines. Eastern employs more than fifteen persons and has, at all times material to this action, been an employer engaged in an industry affecting commerce within the meaning of 42 U.S.C. § 2000e(b), (g) and (h). (6) Locals 550 and 553 (the Union) are labor organizations engaged in an industry affecting commerce and having more than fifteen members within the meaning of 42 U.S.C. § 2000e(d) and (e). At all times material hereto prior to June 1974, Local 550 was the recognized collective bargaining representative for all Eastern flight attendants. In June 1974, Local 553 was formed as a successor to Local 550 with respect to the employees of Eastern. Since June 1974, Local 553 has been the recognized collective bargaining representative for all Eastern flight attendants. (7) The plaintiffs are and have been members of the Union at all times material to this litigation. B. The Issues (8) At issue in this litigation is the legality of the various components of Eastern’s maternity policy. Broadly speaking, the plaintiffs challenge: (a) the separate treatment of pregnancy under Eastern’s Group Comprehensive Medical Insurance; (b) the exclusion of pregnancy from Eastern’s paid sick leave policy and the impact of such exclusion on other conditions of employment; (c) the policy that pregnant flight attendants lose all accumulated seniority if they transfer to ground positions rather than taking maternity leave; (d) the time limits placed on guaranteed rights to reinstatement of flight attendants taking maternity leave and (e) the requirement that flight attendants must commence maternity leave immediately upon knowledge of pregnancy. The policies under attack are contained in a collective bargaining agreement entered into by Eastern and the Union. C. Class Action (9) Upon motion of Eastern, the Clayton action was transferred from the Northern District of Alabama to the Eastern District of Virginia. The Burwell and Clayton ac tions were consolidated for all purposes by order of the Court dated January 27, 1976. (10) Upon motion of Eastern, this litigation was certified a class action pursuant to Rule 28(b)(2), Fed.R.Civ.P. The class is defined as all female flight attendants employed by Eastern at any time since October 27, 1972, or who may be so employed in the future, and who are, were, or may in the future be subject to Eastern’s maternity leave policy. (11) Notices of the pendency of this action were mailed to all class members on November 10, 1975 and January 29, 1976. In addition, notices were posted for a period of twenty days at all places throughout the Eastern system where flight attendant notices are customarily posted. (12) The plaintiffs have now moved the Court (a) to redefine the class to include ground employees and (b) to extend the time frame back to July 2,1965. The Court would be inclined to include ground employees and to adopt a July 2, 1965 cutoff date if the request for class certification were being presented for the first time. See Briggs v. Brown and Williamson Tobacco Corp., 414 F.Supp. 371, 377-378 (E.D.Va.1976). At this late date, however, broadening the class in the requested manner would, in the Court’s view, be inappropriate. D. History of Eastern’s Maternity Related Policies (13) Prior to 1973, Eastern refused to hire married persons for flight attendant positions. Between 1958 or 1959 and 1973, Eastern also limited employment of flight attendants exclusively to women. Accordingly, the impact of the “singles only” hiring policy fell primarily upon women. Pri- or to the mid-1960’s, Eastern also maintained a policy of terminating female flight attendants who became married. This policy was never applied to male flight attendants. (14) From 1931 until May 1,1965, Eastern automatically terminated all flight attendants who became pregnant. This policy was modified in 1965 to give the Company the option to fire flight attendants who became pregnant. From March 21, 1970 to the present, Eastern’s policy has been that flight attendants must commence unpaid maternity leave immediately upon knowledge of pregnancy. As part of this policy, flight attendants on mandatory maternity leave have guaranteed rights to reinstatement within ninety days after delivery under normal circumstances or within six months after delivery if the additional time is needed for medical reasons. (15) From March 21, 1970 until April 26, 1973, it was Eastern’s policy that flight attendants could not accrue seniority during mandatory maternity leave. As a result of collective bargaining between Eastern and the defendant Union, this policy was changed to allow accrual of seniority. Flight attendants whose seniority dates were adversely adjusted as a result of maternity leave occurring after July 1, 1972, could, upon request, have such seniority restored. (16) On April 12,1974, in connection with the settlement of Healen v. Eastern Air Lines, Inc., Civil Action No. 1897 (N.D.Ga.), Eastern agreed to restore the seniority of any female flight attendant whose seniority had been adversely affected as a result of maternity leave occurring prior to July 1, 1972. At Atlanta, and perhaps at other bases, attendants who were identified as having taken maternity leave prior to July 1, 1972, were sent individual letters setting forth the facts of the Healen settlement and requesting that they respond in writing within sixty days, stating their name, employee number and dates of maternity leave. Eastern subsequently automatically restored all seniority for flight attendants at its Atlanta base, whether or not they responded to the individual letters explaining Healen. (17) Although plaintiff Proctor did not accrue seniority during her maternity leave in 1972, and did not request restoration of seniority under either the 1973 contract change or the Healen settlement, Eastern nonetheless restored her seniority sometime between January 1, 1974 and July 1, 1974. Mrs. Proctor lost no seniority during her 1974-1975 maternity leave. E. Medical Insurance Plan (18) Eastern provides a Group Comprehensive Medical Insurance Plan for eligible flight attendants and pays 100% of the premiums for such coverage. (19) Eastern’s Group Comprehensive Medical Insurance Plan has provided at all relevant times herein the payment of 80% of all covered major medical expenses after the satisfaction of a $100 per person calendar year deductible. (20) Eastern’s Group Comprehensive Medical Insurance Plan provided and continues to provide for the payment of covered in-hospital expenses at the following rates: For March 21,1970, through June 30, 1973 — payment of the first $750 plus 80% of all additional covered expenses; from July 1, 1973, through July 31, 1974 — payment of the first $1,200 plus 80% of all additional covered expenses; from August 1, 1974, through the present — payment of the first $1,500 plus 80% of all additional covered expenses. (21) Under its medical insurance plan effective February 4, 1976, Eastern provides benefits for pregnancy expenses as follows: for normal deliveries, the plan will reimburse the first $300.00 of covered expenses, the employee will pay the next $300.00, and then 50% of all covered expenses over $600.00 will be reimbursed by the plan. For miscarriages and abortions, the plan will reimburse the first $200.00 of covered expenses, the employee will pay the next $200.00, and then 50% of all covered expenses over $400.00 will be reimbursed by the plan. Although the cost of a normal pregnancy will vary in different parts of the country, the average pregnancy at the present time costs approximately $1,000.00. (22) From approximately 1968 until February 4, 1976, Eastern’s Group Comprehensive Medical Insurance Plan provided benefits for pregnancy expenses (hospital and obstetrical) as follows: normal delivery — up to a maximum of $250.00; miscarriage or abortion — up to a maximum of $150.00. (23) Eastern’s Group Comprehensive Medical Insurance Plan provides the following limitations on coverage: (a) Payments for out-patient treatment of mental and nervous disorders limited to 50% of covered expense or $10 per visit, whichever is less, with a maximum of 50 visits per year and $50,000 lifetime; (b) No payments for services or supplies in connection with routine physical examinations or not reasonably necessary for the medical care of the patient’s sickness or injury; (c) No payment for services or supplies resulting from an occupational injury or illness for which Workmen’s Compensation benefits will be available; (d) No payment for services or supplies furnished by or for any government; (e) No payment for services or supplies received as a result of an act of war; (f) No payment for cosmetic surgery unless for an accident suffered while covered; (g) No payment for examinations to determine need for adjustment of glasses or hearing aid; (h) No payment for treatment of periodontal or periapical disease or any condition involving teeth except treatment for a fractured jaw or for an accidental injury to natural teeth; (i) No payment for treatment of weak, strained, flat, unstable or unbalanced feet, or for metatarsalgia or bunions except open cutting operations, or for corns, calluses, or toenails unless prescribed by a physician; (j) No payment for nursing, speech therapy, or physiotherapy rendered by the employee or by the spouse, child, brother, sister or parent of an employee or an employee’s spouse; (k) No payment for anything not prescribed or ordered by a physician; (l) No payment for vaccinations or innoc-ulations for flu, polio, smallpox, diptheria, etc.; (m) No payment for eyeglasses or orthopedic shoes; (n) No payment for the difference between a semi-private room rate and a private room rate; (o) No payment for charges that are not reasonable, customary, necessary and prescribed by a physician for treatment of any non-occupational injury or illness; (p) Payment for hospital room and board charges during the first seven (7) days after birth of children of covered employees; and (q) Payment for up to 80% of the reasonable and customary fee for required surgery. (24) At all times material to this litigation, Eastern’s medical benefits plan has provided major medical benefits for the following complications of pregnancy: Hyper-emsis Gravidarum (pernicious vomiting); eclampsia of pregnancy (toxemia with convulsions), Caesarean sections after six months of pregnancy; intra-abdominal surgery after pregnancy terminates; and surgery for extra-uterine pregnancy. Such benefits are equivalent to those for any other covered illness or injury. (25) As of June 1974, Eastern estimated that it would cost an additional $5.72 per flight attendant per month, or $68.84 per flight attendant per year, to provide medical benefits for normal pregnancies on the same basis as regular medical benefits. The cost of the 1976 increase in benefits for miscarriages, abortions and normal deliveries was estimated to be $67,000 per year for flight attendants alone and $448,100 for all Eastern employees who received similar increases. (26) Women comprise approximately 90% of the flight attendant group, and receive about 95% of the benefits paid out under the medical insurance plan. F. Sick Leave, Maternity Leave and Disability (27) Eastern’s employment benefits package is the product of negotiations between Eastern and the Union. The various policies are contained in the collective bargaining agreement. For the purposes of determining the eligibility for and extent of the various benefits, a distinction is made between active employees, i. e., those on the payroll, and inactive employees, i. e., those not on the payroll. Active employees include those actually working, those on paid sick leave, and those on vacation. Inactive employees include those on medical leave without pay (including short term and long term disability), those on personal or emergency leave, those on military leave, and those on maternity leave. In most material respects, the benefits afforded inactive flight attendants are equivalent to those afforded active flight attendants. In this litigation, the relevant comparison involves the benefits available to flight attendants on paid sick leave and those afforded flight attendants on maternity leave. (28) Under the collective bargaining agreement, a flight attendant who is unable to make a scheduled flight because of an illness or injury is placed on sick leave. Flight attendants placed on sick leave continue to receive their base pay to the extent of accrued sick leave allowance and are considered active employees. (29) Sick leave allowance is accrued as follows: From October 9, 1967 through April 26, 1973, flight attendants accrued sick leave at a rate of DA days per month of active service to a maximum of 120 days accrued sick leave. Although flight attendants were not eligible for sick leave benefits during the first three months of active service, they accrued sick leave credit during that period. From April 26, 1973, until December 31, 1974, flight attendants accrued sick leave allowance at a rate of 2 hours per month during the first 6 months of active service. After six months of active service, flight attendants accrued sick leave allowance at the rate of DA hours per month for each month of active service up to a maximum of 400 hours. Effective January 1, 1975, flight attendants accrued sick leave allowance at the rate of DA hours per month for each month of active service to a maximum of 500 hours. (30) Flight attendants who accumulate 300 or more hours of sick leave credit and become sick, will, upon return to active duty, accumulate sick leave credits at the rate of 5Y2 hours per month rather than 4V2 hours per month until their sick leave bank again equals the sick leave credits accrued when their sick leave began. (31) Flight attendants on paid sick leave continue to accrue sick leave and vacation credits at the same rate that they would if on active employment. Flight attendants on maternity leave, however, accrue neither sick leave nor vacation leave. (32) When plaintiff Burwell commenced her maternity leave on May 14, 1970, she had accrued 47 and /6 days of sick leave. Plaintiff Proctor had accrued 140 hours and 54 minutes of sick leave prior to the commencement of her maternity leave on May 15, 1972, and had accrued 58 hours and 55 minutes of sick leave when she began her maternity leave on September 3, 1974. Neither woman was permitted to apply her earned sick leave credits to her maternity leave. (33) Eastern does not allow flight attendants to apply sick leave credits to leaves caused by the following conditions: (a) alcoholism or drinking problems; (b) drug addiction or drug problems; (c) intentionally self-inflicted injury or attempted suicide; (d) pregnancy; (e) cosmetic surgery or elective plastic surgery; or (f) routine physical examinations or doctor’s appointments, unless the flight attendant can show that it is impossible to schedule appointments during non-working hours. (34) Eastern allows the use of sick leave by flight attendants for the following conditions, among others: lung cancer, sterilization, hernia, psychiatric care, injury incurred in a sports activity, prostatitis or prostatectomy, injury incurred in an automobile accident, and vasectomy. (35) While on paid sick leave, Eastern flight attendants may continue their Group Comprehensive Medical Insurance for the duration of their paid sick leave, and the company continues to pay 100% of the premium payments. Flight attendants on maternity leave (or other leave without pay) may continue coverage of the Group Comprehensive Medical Insurance Plan only by personally paying the required monthly contribution. (36) Since 1961 or earlier, it has been Eastern’s policy to provide, at no cost to employees, an accident and sickness plan for flight attendants who are unable to work because of non-occupational accident or sickness. Benefits under this sickness and accident plan range from $25.00 to $110.00 per week and are payable from the eighth day of disability or from the expiration of accumulated sick leave benefits, whichever is later, up to a maximum of 26 weeks for each disability period. (37) Eastern has offered long-term disability insurance coverage to flight attendants since 1973. Coverage under the long-term disability plan is elective, and the premium costs are borne by the individual flight attendant. (38) Flight attendants who take sick leave due to an injury or illness are eligible for paid sick leave only to the extent accrued. After exhaustion of paid sick leave, flight attendants are eligible for short-term accident and sickness benefits. They may then be eligible for long-term disability benefits under the elective plan, but only after exhaustion of the short-term plan and a six-month waiting period. (39) Flight attendants who are on maternity leave of absence are not eligible for short-term disability plan benefits or long-term disability plan benefits. (40) The short-term disability coverage plan excludes the following conditions: (a) injuries covered by workmen’s compensation or similar legislation; (b) conditions for which the employee is not under regular care of a physician; and (c) pregnancy or its complications. (41) The long-term disability plan excludes the following conditions: (a) intentional self-inflicted injury whether sane or insane; (b) injuries resulting from war or act of war; (c) willful misconduct or commission of a felony; (d) alcoholism unless the employee is hospitalized for rehabilitation; (e) drug addiction unless the employee is hospitalized for rehabilitation; (f) pregnancy, child birth, or complications thereof; (g) injuries incurred while serving in the armed forces of this country or another country; (h) participation in a riot; and (i) injuries or sicknesses not being treated by a qualified physician. (42) Leaves of absence for sickness or injury may extend for a maximum continuous period of three years. It has been Eastern’s policy since March 21, 1970 that flight attendants on maternity leave must be available to return to service within ninety days following delivery unless additional time, not to exceed six months, is medically necessary. (43) Seniority is defined in the collective bargaining agreement as the length of service with Eastern. Accrual of seniority is not dependent upon availability for flight duty. Seniority affects flight attendants regarding: (a) reductions in force; (b) recalls after furlough; (c) assignment or reassignment to bases; and (d) flying assignments within the bases. (44) Active service is defined in the collective bargaining agreement as the time during which a flight attendant is available for flight duty, not including time on leave of absence in excess of thirty days, but including time on sick leave and vacation. The active service date is used for the following purposes: (a) to establish flight attendant seniority members; (b) to determine pay progression dates; (c) to determine vacation accrual; (d) to determine sick leave accrual; and (e) service awards. (45) Flight attendants taking maternity leave retain active service credit throughout the leave and accrue active service for the first thirty days of leave. Flight attendants on paid sick leave continue to accrue active service for the duration of the paid sick leave. (46) Plaintiff Proctor’s active service date was adjusted 197 days on December 4, 1972 as a consequence of her maternity leave from May 15, 1972 through November 26, 1972. Her active service date was adjusted 237 days on May 5,1975 as a consequence of her maternity leave from September 3,1974 through April 28, 1975. Plaintiff Burwell’s active service date was adjusted 230 days on December 31, 1970 as a consequence of her maternity leave from May 13, 1970 through December 28, 1970. (47) As discussed previously, Eastern in the past did not allow flight attendants to accrue seniority while on maternity leave. This policy was changed through collective bargaining and the settlement of a lawsuit, and is not in issue here. (48) It is Eastern’s policy to provide employees on active status with pleasure travel privileges on Eastern flights (and other airlines with whom Eastern has reciprocal arrangements). These privileges are granted on a space-available basis subject to certain restrictions and payment of a service charge. (49) Employees on paid sick leave or on vacation are considered “active employees,” and hence are entitled to travel passes. Employees on maternity leave are not considered active employees and, accordingly, are ineligible for travel passes. (50) It is the policy of Eastern to compel flight attendants to commence maternity leave immediately upon knowledge of pregnancy. Because of this policy, Eastern does not provide flight attendants with maternity uniforms for in-flight use and makes no allowances for weight gain due to pregnancy in administering its personal appearance policy. (51) The collective bargaining agreement contains a provision by which a flight attendant forfeits all seniority rights accrued as a flight attendant should he or she transfer to a position not directly related to flight attendant work. An exception is made for transfers caused by physical incapacity, sickness or injury, but pregnancy has not been deemed to fall within this exception. This policy makes temporary transfers to ground positions highly impractical and undesirable for most flight attendants on maternity leave. G. Basis for the Maternity Program (52) Eastern offers the following reasons for excluding pregnancy from sick leave and disability plans and for distinguishing between pregnancy and other physical conditions under the insurance plans: (a) Pregnancy is neither an illness nor an injury within the categories of risk which the insurance and sick leave plans were intended to cover; (b) There is an element of voluntarism involved in pregnancy which does not apply in the same degree to other temporarily disabling physical conditions; (c) The limits placed upon maternity benefits reflect a rational economic decision of the Company and the female-dominated Union on how best to allocate limited resources. Increased maternity benefits have not been necessitated by Union pressure or by competition within the airline industry; (d) Payment of sick leave or disability benefits for pregnancy would amount to a form of severance pay not available to men or non-pregnant females because a significantly higher percentage of flight attendants fail to return from maternity leave than from medical leave; and (e) The cost of providing sick pay and short-term disability for pregnant flight attendants and other pregnant Eastern employees would be excessive. H. Mandatory Maternity Leave (53) From March 21, 1970 until the present, Eastern has maintained a policy of requiring flight attendants to commence unpaid maternity leave immediately upon learning that they are pregnant. The flight attendant has a guaranteed right of reinstatement within ninety days after delivery or, if additional leave time is warranted by the flight attendant’s medical condition, within six months after delivery. (54) Maternity leave is the only form of mandatory leave without pay. (55) Pregnancy is the only physical condition which automatically precludes a flight attendant from flying. Effective December 4, 1975, flight attendants with diabetes controlled by insulin, and certain epileptic flight attendants, have been permitted to fly despite evidence that such flight attendants are more likely to be rendered unable to perform their duties than pregnant flight attendants. (56) Eastern has never conducted or caused to be conducted any study or analysis regarding the effects of pregnancy upon a flight attendant or her ability to satisfactorily perform her duties. Prior to the inception of this litigation, Eastern has never sought or received any professional or expert opinion concerning the ability of a pregnant flight attendant to continue her work. (57) The evidence clearly establishes that Eastern makes virtually no effort to police its forced maternity leave policy. Eastern relies upon the individual flight attendant to advise the company of pregnancy. Other than voluntary compliance, visual detection is the only means by which Eastern attempts to enforce its policy. (58) Eastern has no specific guidelines concerning the physical ability of a flight attendant to function in his or her job. No oral or written instructions are provided in the course of a flight attendant’s training regarding physical conditions which should cause a flight attendant not to fly. There are no procedures for regular medical check-ups or examinations of flight attendants. In short, the judgment as to whether a flight attendant is sufficiently healthy to fly is left almost entirely to the good sense of the individual flight attendant. The record is devoid of any evidence indicating that pregnant flight attendants do not voluntarily abstain from work when physically unable to perform their duties. (59) Although it is Eastern’s position that pregnant flight attendants constitute a safety liability at any stage of pregnancy, most women do not discover they are pregnant until at least seven weeks after conception, and many women do not discover that they are pregnant until the tenth week of pregnancy. Even assuming voluntary compliance with the policy, therefore, many women would continue to work as flight attendants during part of the period in which Eastern contends their condition poses a safety risk. (60) It is common knowledge among Eastern’s management that most flight attendants continue to work after they become aware of their pregnancy. Most flight attendants continue to work through at least the first trimester of pregnancy. Many, including the named plaintiffs, have continued flying through their fifth month of pregnancy. One flight attendant was seven months pregnant prior to commencing maternity leave. (61) Surveys conducted by Trans World Airlines (TWA) and Western Airlines also indicate that flight attendants continue flying well into pregnancy. One court has found that flight attendants for National Airlines, on the average, continue to fly through the first three months of pregnancy, and that many fly well into their fifth month. In re National Airlines, Inc., Maternity Leave Practices and Flight Attendant Weight Program Litigation, 434 F.Supp. 249, 258 (S.D.Fla.1977). (62) Eastern has never disciplined a flight attendant who continued flying after knowledge of pregnancy. Indeed, Eastern has never even attempted to determine whether a flight attendant violated its rule, even though such a determination could be readily accomplished, in most cases, by comparing the commencement date of maternity leave with the date of delivery. (63) The Court has considered the testimony of several experts concerning pregnancy and its impact upon a flight attendant’s ability to perform both normal and emergency duties. The depositions of Dr. Earl T. Carter, Director of the Preventive Medicine Section of the Mayo Clinic, and Dr. David Decker, Director of Obstetrics and Gynecology for the Mayo Clinic, were offered as evidence. Dr. Carter is an expert in the field of aviation medicine and serves as a medical advisor to Northwest Airlines. Dr. Decker is an expert in obstetrics and gynecology. (64) Dr. Andre E. Hellegars testified as an expert witness for the plaintiffs in the fields of obstetrics and gynecology. Dr. William Whaley provided expert testimony concerning hematology and aerospace medicine. (65) It was the consensus view of these experts that pregnancy, in a vast majority of instances, is an entirely healthy condition which becomes disabling only near the commencement of labor. The usual duration of such disability is approximately six to eight weeks. It is common medical practice to permit an expectant mother experiencing no complications to continue pursuing all of her normal activities, including her work, until shortly before the commencement of labor. The American College of Obstetricians and Gynecologists endorses this view. All of the obstetricians and gynecologists who testified in this case permit their patients, absent complications, to continue horseback riding, skiing and other vigorous sports during pregnancy. Thus, it is the generally accepted medical practice to allow pregnant women to continue normal working schedules until shortly before delivery provided they are not exposed to noxious elements such as intense radiation or dangerous chemicals. Indeed, Dr. Hellegars considered the loss of income and related stress which accompany an involuntary maternity leave to be a greater health risk to pregnant women in most instances than continued employment. (66) Eastern’s involuntary maternity leave policy obviously conflicts sharply with the generally accepted medical practice described above. Eastern maintains that the physiological changes associated with pregnancy coupled with the unique work environment of an aircraft cabin impair a pregnant flight attendant in satisfactorily discharging her responsibilities. Specifically, Eastern maintains that continued flying during pregnancy: (a) poses a danger to the fetus; (b) poses a danger to the pregnant flight attendant; and (c) compromises the safe operation of the aircraft because a pregnant flight attendant, in Eastern’s view, is less able than her non-pregnant counterpart to perform her normal operational and emergency duties. (67) The Federal Aviation Administration (FAA), which promulgates extensive safety regulations applicable to commercial airlines, does not require mandatory maternity leave for pregnant flight attendants. (68) The Air Transport Association (ATA), an association of scheduled air carriers, including Eastern, organized a Medical Committee which is composed of medical directors of member airlines. The ATA Medical Committee is on record as favoring an involuntary maternity leave policy such as Eastern’s. The Committee has recognized, however, that this position derives no support from existing medical statistics. Nevertheless, all ATA members, with the exception of Northwest Airlines, have adopted policies similar to Eastern’s. (69) Pregnancy generates physiological changes in a woman’s body and produces certain side effects which, Eastern maintains, impair her functioning as a flight attendant. Two dramatic changes are an increase in blood volume and an increase in cardiac output. The blood volume of an expectant mother can increase by as much as 40-45%. Simultaneously, the percentage of red cells per unit of blood decreases. The resulting decrease in hemoglobin concentration is termed physiological anemia and is a normal condition in pregnant women; it means that greater amounts of oxygen exist in the blood, but in a less concentrated form. Cardiac output also increases during pregnancy. The combination of these factors means that more blood and oxygen are available for the body’s organs at any given time than are available to a non-pregnant person. (70) A pregnant woman also experiences an expansion in her abdominal area, a loosening of the pelvic joints, and increased girth. The rate at which the fetus and uterus grow is basically exponential, increasing most rapidly during the later stages of pregnancy. Prior to the twentieth week of pregnancy, these changes have little or no effect on a woman. The rate of growth after the twentieth week varies from woman to woman. The combination of abdominal expansion and increased girth decreases a woman’s agility. Consequently, many women become more accident-prone during the later stages of pregnancy. By the end of the twenty-eighth week, these physiological changes significantly affect the agility and mobility of virtually all women. (71) Many pregnant women complain of fatigue, loss of strength, fainting and morning sickness during various stages of their pregnancy. The degree to which a pregnant woman becomes fatigued during pregnancy is largely dependent upon her general state of health and the level of activity to which she is normally accustomed. An active woman who continues her employment during her pregnancy is less likely than an inactive, non-working woman to become fatigued during early stages of pregnancy. (72) Fainting occurs most frequently when a person, pregnant, or non-pregnant, stands suddenly after being in a fixed position, and least frequently when a person is on her feet moving around. Fainting in pregnant women is most common in the very early weeks and after the twenty-eighth week of pregnancy. (73) Morning sickness or nausea affects at least 50% of all pregnant women. This condition is rarely disabling and can be ameliorated through diet regulation. Dr. Hellegars has observed that engaging in some activity such as work will take a pregnant woman’s mind off of her nausea and thus lessen its effects. (74) There were no empirical studies or hard data concerning the effects of continued work upon the unborn child of a flight attendant. Dr. Whaley conjectured that the natural physiological anemia of a pregnant woman coupled with the high altitude work environment and physical exertion accompanying the position could adversely affect the oxygen tension in the blood to the detriment of the fetus. It was further speculated that this decrease in oxygen tension could promote miscarriages and premature births. Dr. Whaley’s theory has no widespread acceptance in the medical community, though it is deemed by many to be a matter worthy of investigation. (75) Drs. Prichard and Hellegars were of the opinion that the increased blood volume and cardiac output associated with pregnancy insure that both the fetus and flight attendants receive sufficient amounts of oxygen. (76) There was also testimony concerning the manner in which a fetus might be affected by a plane crash or by the rapid decompression and trauma sometimes associated with air turbulance. While a sudden decompression of the aircraft cabin would reduce the amount of available oxygen, the evidence shows that a fetus and its mother would be more likely to adjust to such conditions than non-pregnant persons. The superior anaerobic metabolism of the fetus accounts for this adaptability. (77) It was speculated that the high altitude at which an aircraft flies increases a flight attendant’s exposure to atmospheric radiation which could produce birth defects. There was no empirical data to substantiate this hypothesis. (78) In sum, the evidence that continued flying by a pregnant flight attendant constitutes a danger to the unborn child is largely speculative and unsupported by current medical opinion. (79) Pregnant and non-pregnant flight attendants share certain inherent occupational risks. Sudden decompression and severe turbulence threaten all flight attendants. Fortunately, the incidents of emergency decompression are exceedingly rare and result in very few injuries. Air turbulence, while common, is rarely of sufficient intensity to cause injury. From 1970 through 1974, statistics covering 2.5 million completed flights reveal only three reports of serious injuries to flight attendants due to air turbulence. (80) A pregnant flight attendant faces two risks that her non-pregnant counterpart does not share: miscarriage and premature delivery. A miscarriage is defined as the termination of a pregnancy before the twentieth week. A premature delivery is the termination of a pregnancy after the twentieth week but prior to full term. (81) Spontaneous abortion prior to implantation is never incapacitating and most women who abort prior to implantation do not know they are pregnant until the spontaneous abortion occurs. Approximately 10% of all implanted pregnancies will terminate in miscarriages; 90% of these will occur within the first thirteen weeks. (82) Miscarriages beyond the sixth week of pregnancy are usually disabling. Although it is impossible to predict a miscarriage with certainty, there are reliable indicators such as spotting or bleeding. A flight attendant who is not spotting when she begins a flight has little danger of miscarrying prior to the completion of that flight. (83) Premature deliveries are usually unpredictable and are disabling when they occur. However, many doctors recommend the consumption of alcohol — an item found in bountiful quantities on Eastern air-crafts — to slow or halt a premature birth once it is underway. (84) The following is a list of flight attendant responsibilities prepared, in part, by Eastern in conjunction with the ATA Medical Committee: I. Normal Operational Duties Lifting — up to 25 pounds regularly, 50 pounds occasionally. Prolonged walking. Prolonged standing. Repeated bending and stooping. Occasional overhead reaching. Kneeling. Pushing and pulling. Ability to withstand recurrent training. Assisting “extra care” passengers. Emergency Duties Hemlich maneuver. Lift out emergency window exits— weight, 30 pounds each exit. During evacuation: carry children, push passengers down slides, crawl over seats to reach exits and/or passengers, administer first aid. Carry out overwater ditching and survival procedures. Assist with life raft — weight, 120 pounds. Assist passengers into raft. Operate emergency equipment for flight attendant’s own use. Mouth-to-mouth resuscitation. Psychological reactions to hijacking and in-flight emergencies. II. Working Conditions Cabin pressurized to 5,000 feet. Exposed to jet engine noise. Irregular schedules. Occasionally long working hours (up to fourteen continuous hours). Temperature extremes (depending upon time of year and location). Light to severe turbulence on occasion. (85) Recurrent training, required by Federal Aviation Administration regulations, is an annual retraining program devoted to a review and updating of safety procedures. Several members of the plaintiff class have successfully completed Eastern’s recurrent training while pregnant. (86) The record is devoid of any evidence suggesting that early stages of pregnancy affect the ability of a flight attendant to perform her normal operational duties. The physical exertion required of a flight attendant in a non-emergency situation is no greater than that required of a homemaker. One flight attendant who has experience in both capacities indicated that it was far easier to perform her routine duties as a flight attendant while pregnant than it was to tend to her house. (87) The emergency duties are necessarily more demanding mentally and physically than the normal operational duties. FAA regulations require that an aircraft be evacuated of passengers in ninety seconds. Many of the escape hatches are narrow. Removing the emergency windows and doors and deploying the life raft require strength and skill. Flight attendants must also direct the passengers and provide any necessary instructions. In short, a flight attendant must be quick thinking, agile and mobile in emergency situations. (88) Although Eastern’s experts believed that a flight attendant should cease work immediately upon knowledge of pregnancy, they were frank to admit that there was virtually no empirical evidence to support their position as to the first trimester of pregnancy. Dr. Serrano, Eastern’s medical director, conceded in a letter to Eastern’s General Counsel dated December 13, 1973, that medical and safety considerations did not justify forced maternity leave during the first trimester of pregnancy. In that letter, Dr. Serrano expressed agreement with another airline’s recent decision to allow flight attendants to continue flying during their first trimester of pregnancy “since the reasons for denial for medical and/or safety considerations during this period of pregnancy are rather weak if at all present.” (89) Eastern’s justifications for its involuntary maternity leave policy were, in the Court’s view, persuasively refuted by the plaintiff’s experts. Drs. Pritchard and Hellegars, after reviewing a list of flight attendant duties and watching a movie prepared by Eastern demonstrating emergency procedures, unequivocally concluded that flight attendants experiencing normal pregnancies could perform both normal and emergency duties without difficulty through the twentieth week of pregnancy. These doctors were of the view that increased girth and abdominal expansion resulting in decreased agility are the key limiting factors for a pregnant flight attendant, but that these factors are generally insignificant until after the twentieth week. The Court finds the testimony of Drs. Pritchard and Hellegars to be convincing and harmonious with the prevailing current medical opinion. (90) The discomforts of morning sickness, fatigue and fainting, as noted earlier, are primarily associated with very early or late stages of pregnancy. In addition to expert testimony and the testimony of many flight attendants, experience bears out that these conditions do not compromise the safe operation of an aircraft. It has been the experience of Eastern and other airlines (such as TWA and National Airlines) that many flight attendants continue to work through the first trimester. There is not a single instance in the record of a pregnant flight attendant becoming incapacitated because of nausea or fainting. The Director of Medical Services for TWA noted in a letter dated July 9, 1974 that TWA’s experience with pregnant flight attendants supported the conclusion that the early months of pregnancy are not incompatible with the duties of a flight attendant. (91) On February 1, 1973, Dr. Carter addressed the Obstetrics and Gynecology Department of the Mayo Clinic concerning pregnant flight attendants. The duties of a flight attendant were discussed in great detail. The various effects of pregnancy such as morning sickness, fatigue, girth, etc. were considered. The consensus reached by the Mayo Clinic staff was that during the first trimester a flight attendant could perform all of her duties without difficulty; that during the second trimester a flight attendant’s ability to perform her duties varied from individual to individual; and that during the third trimester a flight attendant should not work. This consensus provided the basis for the maternity policy adopted by Northwest Airlines in December 1973. In the years since 1973, during which Northwest has permitted pregnant flight attendants to continue working, there have been no miscarriages while on duty, no complaints with regard to performance of duties and no indication of increased injuries to passengers or flight attendants. The Northwest experience thus serves as empirical verification of the position of the plaintiffs’ experts. (92) While the dangers of miscarriages are real in every pregnancy, there is no acceptable evidence that the incidence of miscarriages is higher among working flight attendants than among other women. As previously indicated, the chances are minimal that a flight attendant who boards a flight without spotting will miscarry prior to completing the flight. (93) The Court finds, in summary, that (a) through the twentieth week of pregnancy, substantially all pregnant flight attendants undergoing normal pregnancies can perform both their normal operational duties and their emergency duties as well as they normally can when not pregnant; (b) after the twentieth week of pregnancy, due primarily to decreased agility accompanying abdominal expansion and increased girth, the ability of pregnant flight attendants to discharge their in-flight responsibilities varies from individual to individual; and (c) after the twenty-eighth week of pregnancy, all or substantially all pregnant flight attendants can no longer perform their duties as well as they normally can when not pregnant. I. The Union (94) At all times material to this action, the membership of the Union was at least 90% female, though several of its officers were male. Contracts were negotiated by Eastern with the Union in 1965, 1967, 1970, 1973 and 1974. The 1965 contract was negotiated prior to the effective date of Title VII. (95) In its opening proposals for the 1967 contract, the Union introduced a proposal to eliminate Eastern’s “no marriage” rule for female flight attendants. The Union also proposed a clause prohibiting discrimination on the basis of sex and age. Eastern refused to accept the non-discrimination clause. The Union did secure, however, a Letter of Agreement stating “Eastern will not consider marital status only as a reason for discharge of a flight attendant during the term of the new basic agreement.” The Union made no proposals with respect to flight attendant maternity. The 1967 contract contained provisions explicitly recognizing Eastern’s right to terminate pregnant flight attendants. (96) During the negotiations leading to the 1970 contract, the Union proposed the adoption of maternity leave and the elimination of pregnancy as a basis for termination. The Union renewed its proposal for a non-discrimination clause with regard to sex and age. The Union was successful in obtaining maternity leave but Eastern again rejected the non-discrimination clause. The Union made no formal proposals concerning Eastern’s policy of mandatory leaves of absence for pregnant flight attendants. No proposal was advanced to treat pregnancy in the same manner as other temporary disabilities with regard to benefits. (97) In its opening proposals submitted in April, 1972 leading to the 1973 contract, the Union renewed its request for a non-discrimination clause and, for the first time, proposed that Eastern allow pregnant flight attendants to continue flying. On April 5, 1972, the EEOC Advisory Guidelines on pregnancy were issued. One of the these guidelines, found at 29 C.F.R. § 1604.10(a), states that a “written . . employment policy or practice which excludes from employment . . . employees because of pregnancy is in prima facie violation of Title VII.” At the negotiating table, Union officials handed Eastern negotiators a copy of the EEOC guidelines and stated that they represented Union demands. The 1973 contract contained a non-discrimination clause, but Eastern rejected the Union proposals that pregnant flight attendants be permitted to continue flying after knowledge of pregnancy. Eastern also rejected Union demands that the EEOC guidelines be made part of the contract. The contract did contain a provision granting flight attendants maternity leave with retention and accrual of seniority rights retroactive to July 1, 1972. (98) The Union was a party to the settlement agreement in Healen v. Eastern Air Lines, supra, which generated a settlement agreement providing that the accrual of seniority policy set forth in the collective bargaining agreement was to apply to pregnancies prior to July 1, 1972. (99) In its opening proposals submitted during the negotiations for the 1974 contract, the Union presented a benefits package including medical insurance for normal pregnancies and miscarriages at a rate comparable to hospitalization for other disabilities, and 26 weeks of short-term disability eligibility for pregnancy. Eastern refused to accept this proposal and instead asserted its intention to comply with the then forthcoming decision of the United States Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). The Union did not renew its 1972 demands. (100) Since the promulgation of the EEOC guidelines in April 1972, the Union has taken the position that the guidelines have the force of law. Notwithstanding this position, the Union has signed several contracts which do not conform to these guidelines. (101) The Union’s proposals with regard to maternity policies were among the last items of the Union’s demand to be withdrawn or settled. These issues were withdrawn or settled only upon the failure of active mediation by the National Mediation Board to persuade Eastern to accept the Union’s proposals. Had the mediation efforts been unsuccessful in bringing about an agreement, a strike would have been the only means by which the Union could have attempted to secure acceptance of their proposals. A strike could not have been called for, however, without the approval of the Union membership. Due to a lack of widespread support for these issues within the Union membership, the Court is persuaded that a strike vote probably would not have been successful. (102) Prior to negotiating each new contract with Eastern, the Union solicits and considers proposals from its members. Maternity related issues have never generated much support within the Union despite its 90-95% female composition. (103) The Union has never filed a grievance, an EEOC complaint or a court action based upon or related to the allegedly illegal maternity practices of Eastern. (104) In sum, the Union appears to have made some effort to secure through collective bargaining that which the plaintiffs seek in this Court. The Union has achieved limited success in altering some of Eastern’s policies. These changes have been gradual in nature. For example, the Union sought to eliminate the “no marriage” rule before pushing for maternity benefits. The Union’s efforts with respect to Eastern maternity policies have been less than vigorous, but this is not surprising in light of the small support these issues have generated within the Union. Given this dearth of support, the Union was not in a position to exert great pressure. II. CONCLUSIONS OF LAW A. General Principles The plaintiffs have the burden of establishing that the acts of which they complain constitute discrimination in violation of Title VII. General Electric Co. v. Gilbert, 429 U.S. 125, 137 n.14, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Only upon the showing of a prima facie case of discrimination does the burden shift to the defendant to justify the contested practices by a legitimate nondiscriminatory reason. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Unlike the plaintiff in an action arising under the Fifth or Fourteenth Amendments, a plaintiff in Title VII litigation may establish a prima facie case without regard to intent, upon proof that the effect of an otherwise facially neutral plan or classification is to discriminate against members of one class or another. Compare General Electric Co. v. Gilbert, supra, 429 U.S. at 137, 97 S.Ct. 401; Griggs v. Duke Power Co., 401 U.S. 424, 432, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) with Village of Arlington Heights v. Metropolitan Housing Development, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). If the plaintiff fails to establish a prima facie case, or if a prima facie case is adequately rebutted by the defendant, the plaintiff can nonetheless prevail if she can prove that the contested practice is a pretext for illegal discrimination. McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 804-05, 93 S.Ct. 1817. With the general framework in mind, the Court will turn to the specific practices in issue. 1. MEDICAL INSURANCE PLAN: The issue of the medical insurance plan can, in light of the Supreme Court’s pronouncements in General Electric Co. v. Gilbert, supra, be disposed of almost summarily. Under Eastern’s Group Comprehensive Medical Insurance Plan, benefits paid for normal delivery are substantially lower than they would be if pregnancy were treated as any other condition requiring hospitalization. In General Electric v. Gilbert, supra, the Supreme Court held that exclusion of pregnancy from an employee’s disability insurance plan does not violate § 703(a)(1) of Title VII unless the exclusion of pregnancy from the insurance package has a discriminatory effect in the sense that the plan is “worth more to men than to women,” 429 U.S. at 138, 97 S.Ct. at 409, or unless the exclusion of pregnancy benefits is a “mere pretext” for unlawful sex discrimination, id at 136, 97 S.Ct. 401. Plaintiffs in the instant case meet neither test. With respect to the relative worth of the plan to men compared to women, the plaintiffs engaged in extensive post-trial discovery pursuant to the Court’s order reopening the record in light of Gilbert. Despite this additional discovery, plaintiffs have expressed in their post-trial brief that they “do not believe there is a statistically significant disparity between benefits to male and female flight attendants” under Eastern’s medical insurance plan. Thus, plaintiffs themselves recognize that they have failed to prove discriminatory effect under the standards of Gilbert. Nevertheless, plaintiffs submit that the Court should evaluate Eastern’s insurance program in light of its historical treatment of female flight attendants. Plaintiffs urge that this “bleak history of unrelenting antifamily pressure against Eastern’s female employees” justifies a conclusion that the reduced benefits for pregnancy is a pretext for unlawful sex discrimination. In the Court’s view, the viability of plaintiff’s argument in this regard is in serious question. Indeed, the Court is satisfied that Eastern’s policy of providing less than full coverage for pregnancy-related medical expenses is simply an economic decision concerning the allocation of limited financial resources. See Larson, Sex Discrimination as to Maternity Benefits, 1975 Duke L.J. 805, 818 (1976). Plaintiffs have offered nothing to dissuade the Court from this conclusion. While Eastern’s tainted history might aid the Court in interpreting any relevant facts specifically relating to Eastern’s insurance coverage, plaintiffs’ recitation of that history standing alone is insufficient to prove pretext. In summary, as plaintiffs have shown neither discriminatory effect nor pretext, the Court concludes that Eastern’s medical insurance program is not conducted in violation of Title VII. 2. SICK LEAVE POLICY: With even less diffuseness than utilized in the Court’s discussion of the preceding issue, the sick leave issue may be disposed of. Under Eastern’s sick leave policy, flight attendants on maternity leave do not receive sick leave pay. The Supreme Court has recently upheld such a policy, however, stating that it was “. . . legally indistinguishable from the disability insurance program upheld in Gilbert ”. Nashville Gas Co. v. Satty, 434 U.S. 136, 143, 98 S.Ct. 347, 352, 54 L.Ed.2d 356 (1977). Thus, Eastern’s policy of not awarding sick leave pay to pregnant flight attendants does not violate Title VII unless plaintiffs can show that the policy produces a discriminatory effect or that it is a pretext for unlawful sex discrimination. Plaintiffs, in an effort to carry the burden they had in the preceding discussion, resorted to a similar pretext argument, but concede in their post-trial brief that Eastern’s sick-leave policy was “inconclusive”. As heretofore indicated, reliance solely on Eastern’s general history of discrimination against female flight attendants is insufficient to demonstrate unlawful pretext with respect to a specific policy. The Court accordingly concludes that Eastern’s sick leave policy is not violative of Title VII. 3. REINSTATEMENT POLICY: Eastern’s reinstatement policy creates a far more complex issue than either of the preceding issues addressed. Eastern guarantees reinstatement to flight attendants on maternity leave only if they return to work within 90 days after delivery, or within 6 months after delivery if additional time is medically necessary. This contrasts sharply with Eastern’s policy governing reinstatement following sick leave. Leaves of absence for temporary disabilities other than pregnancy may extend for as long as three years. The method for analyzing such unevenly applied reinstatement policies was explained by the Supreme Court in Nashville Gas Company v. Satty, supra. In Satty, the Supreme Court considered a Title VII challenge to a facially neutral leave of absence policy under which employees returning from mandatory pregnancy leave were deprived of all accumulated seniority, whereas employees returning from leave for any other type of disability were permitted to retain their accumulated seniority. Both the district court and the court of appeals held that such a policy violated § 703(a)(2) of Title VII, 42 U.S.C. § 2000e-2(a)(2), which makes it unlawful for any employer to: . limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s . sex . The Supreme Court affirmed. It was “beyond dispute”, the Court stated, that Nashville Gas Company’s policy of depriving employees returning from pregnancy of their accumulated seniority acted both to deprive them of employment opportunities and to affect their status as employees. The Supreme Court rejected any suggestion that its holding in General Electric Co. v. Gilbert, supra, validated Nashville Gas Company’s policy: Here, by comparison, petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer. 434 U.S. at 142, 98 S.Ct. at 351. While Gilbert did hold that Title VII did not require employers to bestow grea