BURWELL v. EASTERN AIR LINES, INC

PER CURIAM:

This appeal raises several issues. For reasons set forth in the accompanying four opinions, the court has decided them as follows:

1. The court unanimously affirms that part of the district court's judgment that invalidated Eastern Air Lines' policy requiring pregnant stewardesses to forfeit seniority when they transfer to ground positions.

2. A majority of the court affirms that part of the district court's judgment that invalidated Eastern's mandatory pregnancy leave policy for stewardesses during the first 13 weeks of pregnancy. Three judges dissent on this issue.

3. A majority of the court reverses that part of the district court's judgment that invalidated Eastern's mandatory leave policy between the 13th and 28th weeks of pregnancy. Four judges dissent on this issue.

4. The court unanimously affirms that part of the district court's judgment that upheld Eastern's mandatory leave policy from the beginning of the 28th week of pregnancy.

[70] BUTZNER, Circuit Judge, with whom WINTER, HALL, and PHILLIPS, Circuit Judges, join, concurring in part and dissenting:

I concur in affirming the district court's judgment that Eastern could not require pregnant stewardesses to forfeit their seniority rights upon temporary transfer to ground work. Furthermore, I agree with the conclusions reached in Part II of Judge Sprouse's opinion that Eastern cannot impose its mandatory leave policy during the first trimester of pregnancy and that it can impose this policy after the 28th week of pregnancy. I also agree that Eastern has not justified its maternity leave policy on the ground that it promotes the safety of its pregnant stewardesses and their unborn children.

The district court ruled that Eastern must evaluate on an individual basis the ability of each stewardess to perform her duties between the 13th and 28th weeks of her pregnancy. I dissent from the reversal of this aspect of the district court's judgment. It is founded on the correct application of Title VII of the Civil Rights Act of 1964 to facts that are amply supported by the record.

As Judge Sprouse's opinion lucidly demonstrates, Eastern's mandatory pregnancy leave policy has a disparate impact on the stewardesses as a class. Therefore, it can be sanctioned only if it is "necessary to the safe and efficient operation of the business." Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971). Voicing a rational justification for the policy is not enough. When, as here, a complainant has established a prima facie case of discrimination by showing that an employment policy has a disparate impact on the protected class, and the employer has shown that its policy is job related, a court's analysis must proceed to what I consider the critical issue in this case. This is the question of suitable alternatives to the challenged policy. The Supreme Court has aptly phrased this issue for us: "[I]t remains open to the complaining party to show that other tests or selection devices without a similarly undesirable racial [or sex-based] effect would also serve the employer's legitimate interest in `efficient and trustworthy workmanship.'" Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975). Judge Sobeloff reached the same conclusion in Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971), where, speaking of the business necessity defense, he said, "[T]here must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a lesser differential racial [or sex-based] impact." If such alternatives exist, it cannot be said that the employer's business practice, though job related, is necessary. 444 F.2d at 798 n. 7.

The district court adhered to these precepts. It recognized that Eastern's policy was job related, but it found from the evidence that alternative measures would serve Eastern's legitimate interests. In Part II, I will attempt to demonstrate within the brief confines of a dissenting opinion that, although the evidence conflicted, the district court's findings of fact are amply supported by the record. But first, one other aspect of the law deserves comment.

Acceptance of Eastern's policy cannot be predicated on the company officials' assertion of a bona fide belief that it is justified. The principles that govern discriminatory impact cases and the business necessity defense are explained in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). There, speaking of an employer's lack of discriminatory intent, the Court said, 401 U.S. at 432, 91 S.Ct. at 854:

But Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.

Griggs persuades me to reject Eastern's thesis that its bona fide belief in the utility of its mandatory pregnancy policy should determine the outcome of this case. The company's reliance on Furnco Construction Corp. v. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978), does not compel a different conclusion. Furnco dealt with a type of discrimination that has been described as disparate treatment. In such cases the complainant must prove discriminatory motive. In contrast, a complainant need not prove discriminatory motive in a case that discloses discriminatory impact. See generally Teamsters v. United States, 431 U.S. 324, 335-36, n. 15, 97 S.Ct. 1843, 1854 n. 15 (1977).

The district court, of course, is the appropriate and best judge of the evidence. We may reject its findings only for clear error. Fed.R.Civ.P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 394-95, 68 S.Ct. 525, 541-542, 92 L.Ed. 746 (1948). Expert witnesses presented conflicting views about the effects of pregnancy on a stewardess's ability to do her job. The district court resolved these conflicts and found from the evidence that alternative measures, short of grounding all pregnant stewardesses, could reconcile Eastern's legitimate interests with the Act's prohibition of sex-based discrimination.

The most comprehensive empirical evidence in the record about the routine operation of an airline that does not have a mandatory pregnancy leave policy fully sustains the district court. Northwest Airline stewardesses continue to work until the 28th week of pregnancy if physicians certify to their abilities. Northwest's policy recognizes, as did the district judge, that pregnant stewardesses can and should be evaluated on an individual basis. Northwest adopted this policy after consulting with medical experts of the Division of Obstetrics and Medical Gynecology at the Mayo Clinic. These experts concluded that pregnancy did not affect all stewardesses' abilities until late in gestation. Northwest's medical advisor, a diplomat in Aviation Medicine and a former president of the Aerospace Medical Association, testified that Northwest had experienced no operating difficulties during the two years that this policy had been in force, although many women had been flying while pregnant.

A recognized expert in gynecology and obstetrics, who had done considerable work on the effects of high altitude on fetal development, testified that the increasing weight gain and girth that accompany pregnancy are the principal incapacitating factors for work as a stewardess. He discounted the significance of most of the typical complications of pregnancy, such as fatigue, morning sickness, fainting, varicose veins, and clumsiness. He stated that the average stewardess would retain her abilities unchanged through the 20th week of pregnancy, and that, for 20 to 28 weeks, ability would depend on the individual. He believed that, although it is impossible to predict beforehand which pregnancy would produce disabling complications, such complications usually can be diagnosed during the course of pregnancy before disability. He also asserted that pregnant stewardesses before 28 weeks are at no greater risk of trauma than non-pregnant stewardesses. He considered the risk of miscarriage, which he admitted could be disabling, no greater than the risk of a male steward's suffering from appendicitis or a heart attack while in flight.

The stewardesses' other medical witness, an author of a major treatise on obstetrics who also qualified as an expert in gynecology and hematology, testified that he believed pregnant stewardesses should and could be evaluated on an individual basis. He stated that pregnancy generally produces no appreciable change in strength or in the ability to perform physical work before the 28th week. He also testified that trauma severe enough to disable a pregnant stewardess would likely incapacitate a nonpregnant stewardess.

Although Eastern's medical experts were firm in their opinion that pregnant stewardesses should not be permitted to fly, their testimony, fairly read, reveals that they, too, recognized that pregnancy's effects differ from individual to individual. They acknowledged that some pregnant women could possess the capacity to perform all routine and emergency tasks required of a stewardess. On cross-examination, Eastern's principal expert witness said that he permits his pregnant patients, depending on their individual capacities and experience, to continue to work, ride horses, ski, and water ski. Another airline witness testified that he allows his pregnant patients at 20 weeks to play tennis, and that from his observation a stewardess's duties were not more exhausting than tennis.

All of the experts agreed that miscarriage, which occurs unpredictably in about ten percent of all pregnancies and for which no effective treatment exists, could incapacitate a stewardess if it happened during a flight. The experts also agreed, however, that miscarriages are preceded by obvious and recognizable symptoms that would permit, in the vast majority of cases, a stewardess to remove herself from a flight sequence. Also, the testimony disclosed that 90 percent of all miscarriages occur within the first 12 weeks, a period, as the district court noted, during which Eastern's stewardesses have been flying routinely.

The record establishes that Eastern's mandatory leave rule evolved from policies that were inherently discriminatory in their treatment of women. From the late 1950's until 1972, Eastern hired only single women as flight attendants; during this period males were excluded. Until the mid-1960's, Eastern fired any woman who married. Up to 1965, Eastern also fired any woman who became pregnant. It retained this option until 1970, at which time without conducting any study to determine whether pregnancy impairs stewardesses' ability to work, it adopted the rule requiring stewardesses to take unpaid leave when they became pregnant. Although aware that other airlines safely operated with less restrictive policies, Eastern has made no effort to administer its policy on an individual basis.

There is no dispute that Eastern's rules dealing with pregnancy differ from its regulations for other physical conditions. Apart from its pregnancy policy, the airline has no written guidelines governing fitness of its flight attendants; nor does it routinely examine them. Eastern's medical director testified that the airline's normal method of handling physical and mental disabilities, other than pregnancy, is to rely upon self-monitoring. If a stewardess, who is not pregnant, fails to remove herself from a flight when she is incapable of performing, the airline expects complaints from fellow workers or passengers to reach the medical department, which investigates each individual case as necessary. Eastern permits stewardesses with controlled diabetes and controlled epilepsy to fly under supervision of the medical department, even though medical experts testified that these conditions are more likely to be disabling than pregnancy. The district court found, and Eastern does not dispute, that maternity is the only disability for which Eastern requires stewardesses to take leave without pay.

The district court noted that Eastern's enforcement of its own policy is remarkably lax. A number of stewardesses testified to having worked while pregnant without experiencing difficulties. Eastern's only methods of ensuring compliance are voluntary reporting and visual detection. As a result and as Eastern is aware, stewardesses commonly fly through the 12th and 20th weeks of pregnancy. Eastern recounted incidents of stewardesses removing themselves from flight sequences because of pregnancy-related disabilities; on these occasions the stewardesses followed the practice approved for other sicknesses or disabilities. Eastern did not produce, however, any evidence that its lax administration of its rule creates any risk to its passengers.

While this case was pending on appeal, Eastern altered its leave policy to comply with New York law. The new regulations, which Eastern terms "interim," allow a stewardess to continue working while pregnant as long as her doctor or Eastern's medical department certifies her capability. The new policy affords a stewardess sick leave benefits only after a doctor certifies that she is unable to continue working. Before that time a pregnant stewardess, if she desires not to work, must take unpaid leave. The adoption of this rule further supports the district court's conclusion that the mandatory ban of all pregnant stewardesses was not a business necessity. The new policy demonstrates that individual evaluation is a suitable alternative that does not sacrifice airline safety.

The district court's judgment requiring Eastern to modify its mandatory pregnancy leave policy by evaluating stewardesses on an individual basis is amply supported by the record, and it conforms precisely to the principles explained in Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975), and Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir. 1971). The district court, however, did not have an opportunity to consider Eastern's new policy. Therefore, I would remand this case with directions to the district court to consider the propriety of amending its decree in the light of the regulations that Eastern has now adopted.

[88] MURNAGHAN, Circuit Judge, concurring in part and dissenting in part:

With respect to the special provision causing a pregnant employee to lose seniority accrued as a flight attendant in the event of transfer to a position not directly related to flight attendant work, I am in complete agreement with the majority. Sickness and injury are exceptions but pregnancy is not. I fail to perceive any justifiable reason for according pregnant employees, necessarily all female, less favorable seniority treatment than that accorded any other employee who is obliged for reasons of physical condition temporarily to cease flight service. Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977).

However, I do not agree entirely with the disposition which the majority has decided is appropriate with respect to a rule which Eastern Airlines, Inc. had adopted requiring that, immediately upon pregnancy, an employee without exception became ineligible for flight service and, absent a transfer to other employment, had to enter unpaid maternity leave status until after termination of the pregnancy by birth of a child or otherwise and the return of the employee following recovery from any attendant incapacity. The district court did acknowledge a limited validity for the rule but restricted its application to the third trimester (i. e., after the twenty-eighth week). The majority would permit enforcement of the rule during the second and third trimesters, but not the first (i. e., not during the first thirteen weeks). I respectfully submit that reasons indicating a substantial growth in the safety risks, even in the first thirteen weeks, suffice to allow enforcement of the rule as promulgated by Eastern.

Title VII has generated enough litigation that cases under it have achieved a language, if not altogether a life, of their own. Predominantly concerned with race and sex, they first command an inquiry into whether there has been, at least prima facie, discrimination. Apart from blatant examples, which would require little in the way of a special lexicography, the cases have generally spoken in terms of disparate treatment and disparate impact as conditions which, when established, demonstrate the existence prima facie of discrimination.

The cases, for these initial purposes, break down into at least two very distinct categories, one of which has little or no pertinence to our present inquiry. In all the cases where discrimination is asserted, there is a palpable difference between the favored and the disfavored individuals or groups of employees or prospective employees. Without one, indeed, it would be difficult if not impossible to identify race or sex, standing alone, even as a possible, let alone a probable cause for difference in treatment to the disadvantage of the minority group member or the woman. A black is distinguishable from a white, a man from a woman, through simple observation.

The heart of anti-discrimination can be summed up by the observation that while there is a difference it does not, and, but for exceptional circumstances, may not make a difference. The mere fact of skin hue, or physical configuration, is essentially irrelevant to how well a job can be performed and so normally may not be taken into account. Employers have on occasion, where the differentiations on grounds of color or of sex admittedly do not, of themselves, allow different treatment, shifted ground to something less immutable than skin color or other permanent physical differentiating characteristics and introduced standardized testing, avowing that the purpose is solely to secure better qualified employees, regardless of race or sex. The test may suffice to provide an acceptable basis for hiring practices, although statistically a minority or women do less well on the tests, if the tests are "job-related"; if they bear a "manifest relationship to the employment in question." New York City Transit Authority v. Beazer, 440 U.S. 568, 587 n. 31, 99 S.Ct. 1355, 1366 n. 31, 59 L.Ed.2d 587 (1979); Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971).

Those are cases, however, involving a total ban on the differentiating and immutable race and sex characteristics to justify less favored treatment to a minority or female individual or group, since they bore, in the posture of the cases as they arose, in no way on qualifications to perform the work. Instead, attempted justifications for treating the plaintiff or plaintiffs less well related only to supposed acculturation aspects of the job applicant which were not unchangeable and which could be improved to his or her benefit. Our present case is very different in that an immutable differentiating characteristic is the aspect of things on which difference in treatment is based, and is a condition which cannot be altered to the individual's benefit with the passage of time. On the contrary, as time goes on, pregnancy can only continue to increase the reasonableness of the differentiating treatment based on sex itself, until, by the third trimester, at the latest, all participants in the controversy agree that it is proper to treat pregnant women differently than men (and non-pregnant female flight attendants).

Hence, to solve the questions presently before us, we should direct our attention to other cases, in which the physical idiosyncracies associated with a particular race or a particular sex are the very basis for the differentiating treatment.

Our first question, of course, is whether the sex or racial identifying characteristic can ever, in and of itself, be a justifiable, non-discriminatory grounds for according non-identity of treatment. The two cases in which the Supreme Court has addressed the question both have answered in the affirmative. General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976); Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977).

In Gilbert, the employer had a sick leave pay arrangement extending to virtually all kinds of sickness. On the grounds it was not an illness, General Electric did not pay employees who had to go on leave because of pregnancy. In determining whether it constituted discrimination not to pay its pregnant female employees the sick leave allowance, the Supreme Court was faced with a quandary of some dimensions. The women could and did argue that, because of the exclusion, men got the benefit in all cases, whereas the women got the benefit for only some, not all of the cases. Yet, if the employer had chosen to pay the benefits to women disabled by pregnancy, the men could have contended with equal logical force, that both categories got only the benefits for heart, liver and other ailments to which both sexes were subject, but women alone also got, while men did not, important and substantial economic benefits associated with pregnancy, and so associated with women only.

The fact was that there was no way to treat the two categories identically. Up to now, and presumably forever, men cannot become pregnant. So different treatment will inevitably result either way. It is hardly surprising that, faced with a "damned if you do and damned if you don't" situation, the Court concluded that, since the amount paid in women's benefits equalled or exceeded the benefits paid for men, even without including pregnancy as an event giving rise to eligibility for payment, there was no discrimination.

Likewise, in Satty, the Court determined that a denial of benefits to women for pregnancy was facially neutral, so did not create a prima facie case of discrimination. Nevertheless, as the Court was careful to point out, if the employees could meet the additional burden of proving pretext, i. e., that the employer really intended to discriminate, and only used the facial neutrality as an excuse, a right to relief would be made out.

So, as in Gilbert and in Satty, we must first determine whether pregnancy makes a difference justifying different treatment in the circumstances of the present case or whether pregnancy is only a difference without making one.

Here we must, except to the extent of the consequences of a conclusion that prima facie discrimination was not made out, take our leave of Gilbert and Satty, for the factual materials from this point on have so little similarity as to be of no real assistance in determining whether the facts of the instant case do or do not make out prima facie discrimination. Dealing, as Gilbert and Satty did, with whether leave associated with pregnancy must be compensable to avoid a charge of discrimination is quite different from deciding whether a requirement that a flight attendant immediately stop flying and take leave without pay until termination of and recovery from any after effects of the pregnancy is discriminatory.

In the first place, there is the added factor of involvement of others than merely the employer and the employee, who alone were concerned in Gilbert and Satty. Outside third parties, namely the passengers, have an interest which cannot be ignored.

Second, pregnancy in Gilbert and Satty was not fragmented into trimesters. No doubt the impact on the issues there before the Court was greatest in the third trimester. Nevertheless, the relevance of the decisions as to whether or not there was discrimination on a prima facie basis in the present case is remote. The relevant test is a different one, as to which an answer must be found without the assistance of decisive or even strongly indicative precedent from the Supreme Court. It is simply whether ". . . the duty resting upon air carriers to perform their services with the highest possible degree of safety in the public interest . . ." combined with the generally accepted medical evidence spells out a situation in which danger in flight service is significantly enlarged unless disqualification occurs immediately upon the first knowledge of pregnancy. If not, discrimination has been made out. If, on the other hand, a manifest increase in safety risk is demonstrated discrimination is convincingly rebutted. A secondary question arises, if the manifest increase in safety risk is demonstrated, whether the plaintiffs never succeeded in finally establishing prima facie discrimination as part of the plaintiffs' case, or whether, although prima facie discrimination was made out, nevertheless, as an affirmative defense, a showing of business necessity or bona fide occupational qualification by the defendant overcame the prima facie case.

The nature of airplane accidents is such that they are, fortunately, extremely infrequent for the scheduled airlines and, on the other side of the coin, usually so devastating when they do occur that death of everyone is so inevitable and virtually immediate that the physical condition of the flight attendant is not going to matter one way or the other. Nevertheless, there are intermediate situations on which quick and alert reaction by flight attendants in circumstances of great danger and tension may make all the difference. The medical evidence supports a conclusion that a pregnant flight attendant may be somewhat less able to respond in a complete and efficacious manner. The testimony unequivocally establishes that, although, if healthy, a flight attendant during the first thirteen weeks could perform as effectively as though she were not pregnant, a substantial disability could occur in the event of a miscarriage. Miscarriage is defined as the termination of pregnancy before the twentieth week. Miscarriage is an illness confined to pregnancy, and its occurrence in the first thirteen weeks is frequent enough that the airline here was justified in giving the attention it gave to the increased risk, and in removing pregnant flight attendants from service immediately on learning of the pregnancy.

The airline charged with the safety of its passengers and crew should be entitled to take the change in the risk factor into account by doing what it reasonably can to preclude any palpable growth in the risk. It should be enough in the way of justification to point to a humanitarian responsibility. However, were it not, there remains the increase in the possibility of huge claims for injury and death occurring because a pregnant flight attendant, even during the first thirteen weeks, was serving the passengers and was handicapped or incapacitated in a crucial manner at a crucial time.

Having so determined, we have, just as the Supreme Court in General Electric Co. v. Gilbert had, a situation where, the facts having been considered, an exclusion based on pregnancy was "not a gender-based discrimination at all." Id. 429 U.S. at 136, 97 S.Ct. at 408. In sum and substance, the gender variation, while it only is a difference prior to pregnancy, made a difference once pregnancy had occurred and the disqualification from flying proceeded, not from sex, but from disability.

That, of course, does not end the matter, for the possibility of pretext still remains. While Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977), has held that the denial of sick pay for pregnancy, although facially neutral, may nevertheless be found discriminatory upon proof of pretext on the part of the employer, it is by no means clear that Satty, concerned only with the interests of employer and employee, would extend to a situation involving responsibility to third parties such as other flight crewmembers and passengers. Assuming that it does, nevertheless, the posture of this case effectively repudiates the existence of pretext. This is so because 90% of Eastern's flight attendants are female, reflecting a strong past practice favoring (men flight attendants could well argue "discriminatorily favoring") women for that position. The physical appearance of flight attendants is not significantly affected during the first thirteen weeks of pregnancy. Thereafter, a majority of the Court is prepared to hold that the airline would not be acting discriminatorily if it discontinued flight service during the continuation of pregnancy in the second and third trimesters.

The airline must go to expense to identify and train flight attendants. It is not lightly to be supposed that it goes to that expense in an employment area which heavily favors females, only, for no valid reason, to force them off flight duty during the first thirteen weeks. During those thirteen weeks, when pregnancy is not visually evident, knowing that from the thirteenth week on the airline might properly disqualify them for flight service during the pendency of the pregnancy, it strains credulity beyond the reasonable point to hold that it is to be conjectured, assumed or concluded, in the absence of direct evidence, that those responsible for the decisionmaking of the airline were in fact acting pretextually and discriminating on the grounds of a difference uniquely sex-related. No respectable reason has been advanced to find a pretext in a policy which will complicate personnel problems for the airlines, in a position for which it has traditionally preferred females, whose physical appearance will not be altered, and whose removal from flight service after thirteen weeks is clearly proper and not discriminatory. It would be too farfetched in the face of such considerations to allow an argument of pretext distilled from other, evidently distinguishable cases without such overwhelming countervailing considerations. This is not to say that as an airline executive I should have reached the same conclusion. The careful and detailed opinion of the district judge outlines substantial basis for a belief to the contrary. But it is not incumbent on the airline official to be wise — only that he or she be non-discriminatory.

With respect to that aspect of the decision, I consequently would reverse the decision of the district judge. I find no sufficient basis for a finding of discrimination in the first instance or secondarily on the basis of pretext. In this connection, I would point out one advantage of my conclusion. It insures the same result whichever airline and whichever district judges are involved, assuming no other indicators of sexual discrimination are present. It, therefore, avoids the undesirable result which I fear the majority decision will bring about of differing results depending on factfindings in individual cases where the issue really is essentially the same throughout the industry. Cases favoring Eastern by deciding that the immediate unpaid leave requirement effective upon the first knowledge of pregnancy was valid are:

1. Harriss v. Pan American World Airways, 437 F. Supp. 413 (N.D.Cal. 1977);

2. EEOC v. Delta Air Lines, Inc., 441 F. Supp. 626 (S.D.Tex. 1977), reversed and remanded on purely procedural grounds, 619 F.2d 81 (5th Cir. 1980);

3. Air Line Pilots Ass'n v. Western Air Lines, Inc., 22 E.P.D. ¶ 30,636 (N.D. Cal. 1979);

4. Condit v. United Airlines, Inc., 12 E.P.D. ¶ 11,195 (E.D.Va. 1975), affirmed as not clearly erroneous, 558 F.2d 1176, (4th Cir. 1977), cert. denied, 435 U.S. 934, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978).

Cases going the other way are:

1. MacLennan v. American Airlines, Inc., 440 F. Supp. 466 (E.D.Va. 1977);

2. In re National Airlines, Inc., 434 F. Supp. 249 (S.D.Fla. 1977);

3. The case under current consideration, Burwell v. Eastern Airlines, Inc., 458 F. Supp. 474 (E.D.Va. 1978).

Nor is the argument persuasive that the rule requiring discontinuation of flight service even in the first thirteen weeks because of pregnancy should be deemed discriminatory because of widespread failure of flight attendants to honor the rule. The argument runs that the rule unfairly discriminates against the forthright and honest, in favor of the dissimulative and dishonest employees who violate a company rule and conceal existence of pregnancy. The short answer is that Title VII does not exist to create protected rights in dishonest employees. Absent a showing that Eastern connived in or winked at the failure to report, and none is shown to have existed in this case, that should not be a ground for invalidating an otherwise reasonable rule.

In short, it was a facially neutral treatment of a difference between men and women created by another force than human beings, and apparently immutable, which has an adverse impact on flight safety. There is no justification for pursuing a pretext claim, wholly rebutted by other evidence in the case. To the extent of the holding that mandatory discontinuation of flight service is discriminatory when enforced in the first trimester I would reverse.

Circuit Judges DONALD RUSSELL and WIDENER have authorized me to say that they concur in my dissent.

[114] WIDENER, Circuit Judge, concurring and dissenting:

Although I concur completely in Judge Murnaghan's separate opinion, a few additional words are, with respect, in order in light of what the majority finds, or fails to find, in the record regarding the effect of pregnancy during the first thirteen weeks.

The majority's treatment of the first thirteen weeks of pregnancy (Part II of Judge Sprouse's opinion) is based on the similar premises that the experts "point to the virtual unanimous conclusion that a pregnant flight attendant can adequately perform routine and emergency duties through the thirteenth week of pregnancy," p. 366, and that "there is no credible evidence supporting Eastern's contention that pregnancy during the first thirteen weeks is a factor that might affect the safety of its passenger operation." P. 372. I believe both of them are demonstrably unsupported by the record.

Even a hurried reference to the appendix shows an unrefuted example of an actual occurrence which supports my view. On an Eastern flight from Boston to Washington with a stop at Lexington, one stewardess had to work the trip by herself because the other stewardess, in her first trimester, was incapacitated by morning sickness. If the Captain had known about it, he would have had to cancel the trip in order to comply with FAA requirements FAA requirements were violated by flying the trip with only one stewardess able to perform her duties. (App. 1272, 1282).

An equally obvious example is the testimony of Dr. William Cooper whose specialty is obstetrics and gynecology. Dr. Cooper has been a practicing physician since 1953 and is a licensed pilot. He has delivered somewhere between 7,000 and 10,000 babies and has seen many more patients than that.

Dr. Cooper testified in small part as follows:

"Q. Can women ordinarily predict when they will be affected by morning sickness?

A. No. I don't believe they can predict it at all, Ms. Perdue. It can happen at any time. Come out of the blue just like that; no warning.

Sometimes they will even notice a projectile vomiting and difficulty getting to the bathroom in order to not mess things up.

It is not predictable.

Q. Are dizziness and fainting sometimes common the first trimester?

A. Very common." (App. 1134)

Q. Is it possible to predict when a pregnant woman will faint or which women will suffer from this?

A. It is not possible to predict which women will suffer from it.

It is possible, otherwise, to say, stay out of a closed-in environment, a hot environment; stay out of a situation where this might occur.

And when you have finished eating dinner, stand up slowly; don't get out of bed rapidly in the morning, and so forth.

Q. In your opinion, would this tendency to faint or dizziness be aggravated by motion?

A. Yes, I think it would.

Once again, the body has to adjust to another irritant or something occurring to the body's environment. (App. 1136)

Q. Do you believe it [permitting pregnant flight attendants to work on aircraft] would compromise the safety of passengers and other crew members on the aircraft?

A. I do. (App. 1175)

The nine physicians who comprised the Air Transport Association Medical and Sanitation Committee recommended by a 8 to 1 vote that flight attendants should be taken off flight status as soon as they are aware of pregnancy. (App. 1266)

The above uncontradicted incident, the brief excerpt from the testimony of Dr. Cooper, and the unrefuted recommendation of eight of the nine physicians comprising the Air Transport Association Medical and Sanitation Committee show, I submit, beyond doubt that the position of the majority that there is a "virtual unanimous conclusion that a pregnant flight attendant can adequately perform routine and emergency duties through the thirteenth week of pregnancy," and its similar position that "there is no credible evidence supporting Eastern's contention that pregnancy during the first thirteen weeks is a factor that might affect the safety of its passenger operation" are not supported by the record.

To simply dismiss as incredible the evidence of the physician who testified contrary to the findings of the majority is not a sufficient answer. I suggest that it may be explained by the fact that neither the opinion of the district court nor either of our opinions (Judge Sprouse and Judge Butzner) which make up a majority permitting pregnant stewardesses to fly during the first thirteen weeks, even mentions the statutory standard which is deeply involved in this case, which is, of course, 49 U.S.C. § 1421(b). That statute requires in terms that the FAA administrator shall give full consideration to "the duty resting upon air carriers to perform their service with the highest possible degree of safety."

A stewardess who is vomiting in the lavatory cannot participate effectively in an emergency evacuation. Neither can one who is fainting or miscarrying. If for no other reason than because the record will support only the conclusion that fainting and vomiting cannot be predicted, it is simply not possible to operate an aircraft with the "highest possible degree of safety" with a stewardess flying who may well be incapacitated just when she is needed most. I suggest that the absence of any mention of the statutory requirement in the opinion of the district court and the two majority opinions of this court is due to the fact that there is no answer to it. But the question must be answered before liability may be established. A finding of liability with no answer given, or even attempted, to what is obviously one of the key questions in the case, is, I submit, unjustified.