![handle is hein.journals/prvw1 and id is 1 raw text is: Oct. 1973 Term-No. 1
OF UNITED STATES SUPREME COURT CASES
Dec. 7, 1973
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COHEN v. CHESTERFIELD COUNTY SCHOOL BOARD
CLEVELAND BOARD OF EDUCATION v. LA FLEUR
(Docket No. 72-1129)
(Docket No. 72-777)
Constitutional Law - Sex Discrimination - Validity of state reouirement that pregnant
teachers leave employment a fixed time before expected delivery
On Writs of Certiorari to the United States Courts of Anneals for the Fourth and Sixth Cir-
cuits. Decisions below: 474 F. 2d 395 (4th Cir., 1973); 465 F. 2d 1184 (6th Cir., 1972)
Analysis prepared November 15, 1973 by:
Professor Julius G. Getman, Indiana
47401; telephone (812) 337-4040
Basic Significance of the Cases
These cases should resolve the issue of the validity
of state laws, under the Equal Protection Clause of the
U.S. Constitution, that make classifications based on sex.
The cases also raise questions about the extent to which
regulations related to pregnancy constitute a form of
sex discrimination -- and if so, under what circumstances
they may be justified.
Facts
The claimants in both cases are teachers protesting
the application of school board maternity policy to them.
Mrs. La Fleur and Mrs. Nelson taught in Cleveland which
has a rule requiring that maternity leave be taken not
less than five months before the expected date of the nor-
mal birth of the child. Each was placed involuntarily
on leave status pursuant to this rule. Under the rule,
the teacher has priority on reassignment but does not have
a prior claim to her former position. Mrs. Cohen taught
in Chesterfield County, Virginia. She sought maternity
leave beginning about one month before her baby was due
and presented a letter from her gynecologist stating she
could work as long as she chose. She was terminated in
accordance with a School Board rule which states, Term-
ination of employment of an expectant mother shall become
effective at least four (4) months prior to the expected
birth of the child. In none of the cases was there medi-
cal evidence indicating that the teacher was at the time
when required to stop teaching physically incapable of
performing her duties. The claimants introduced medical
evidence ascertaining that they were physically capable
of performing their duties and that the fact of their
pregnancy had been well received at school. The School
Board indicated that the rule was based on concern about
the teacher's absence during the period of delivery, fear
of injury to the teacher or the fetus, and fear that since
pregnant women are less mobile this might make them less
effective as teachers in keeping order.
University School of Law, Bloomineton, Indiana
Legal Issues
i. Do rules related to pregnancy constitute
classification on the basis of sex?
The 4th Circuit sitting en banc upheld the termina-
tion of Mrs. Cohen's employment on the ground that
...the regulation is not an invidious
discrimination based on sex. It does
not apply to women in an area in which
they may compete with men.... The fact
that only women experience pregnancy
and motherhood removes all possibility
of competition between the sexes.
The brief on behalf of the school board before the
Supreme Court argues that sex discrimination occurs only
when men and women similarly situated are treated dif-
ferently. Since only women can be pregnant there can
be no comparison to men for purposes of equal treatment.
In the present case the distinguishing factor is not sex.
It is pregnant women versus all other women. The 6th
Circuit in La Fleur rejected this analysis, as has the
Equal Employment Opportunity Commission and most of the
courts which have recently dealt with the question. They
held that classification on the basis of physical prop-
erties possessed by one sex is still a form of sexual
discrimination. Courts and commentators who have adopted
the position argue that although men do not become preg-
nant they have become temporarily disabled for a variety
of reasons which may be equated with childbirth. The
U.S. Court of Appeals for the 2nd Circuit recently stated
the generally prevailing view in Green v. Waterford Board
of Education, another maternity leave case:
Continued on page 2
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