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as such. The California insurance program does not exclude anyone from benefit eligibility because of gender but merely removes one physical condition-pregnancy-from the list of compensable disabilities. While it is true that only women can become pregnant, it does not follow that every legislative classification concerning pregnancy is a sex-based classification like those considered in Reed, supra, and Frontiero, supra. Normal pregnancy is an objectively identifiable physical condition with unique characteristics. Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation such as this on any reasonable basis, just as with respect to any other physical condition.

376

The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups-pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes. The fiscal and actuarial benefits of the program thus accrue to members of both sexes. As an exercise in medieval logic, the reasoning in this footnote is interesting, but it has absolutely no connection with reality. The appellees377 and some of their amici378 had painstakingly dealt with this issue in their briefs, citing case after case which had held that discrimination on the basis of pregnancy was sex discrimination. Those arguments will not be repeated here; nor will all of the civil rights laws, regulations, guidelines, and other administrative rulings which take a similar position be discussed. The core argument presented by the attorneys for the appellees was as follows:

The individual who receives a benefit or suffers a detriment because of a physical characteristic unique to one sex benefits or suffers because he or she belongs to one or the other sex. Sexunique physical characteristics are precisely what define a man or woman as a member of one class or the other.379

370 Geduldig v. Aiello, 417 U.S. at 496 n.20 (citations omitted).

377 Brief for Appellees at 28-46, Geduldig v. Aiello, 417 U.S. 484 (1974).

37 Brief for Amici Curiae of the American Civil Liberties Union, the Center for Constitutional Rights and the National Organization for Women as Amici Curiae at 1824, Geduldig v. Aiello, 417 U.S. 484 (1974).

370 Brief for Appellees at 31-32, Geduldig v. Aiello, 417 U.S. 484 (1974).

72-889 O 76 Pt. 2 - 16

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Justices Brennan, Douglas, and Marshall, dissenting in Aiello, agreed with this analysis:

In my view, by singling out for less favorable treatment a gender-linked disability peculiar to women, the State has created a double standard for disability compensation: a limitation is imposed upon the disabilities for which women workers may recover, while men receive full compensation for all disabilities suffered, including those that effect [sic] only or primarily their sex, such as prostatectomies, circumcision, hemophilia and gout. In effect, one set of rules is applied to females and another to males. Such dissimilar treatment of men and women, on the basis of physical characteristics inextricably linked to one sex, inevitably constitutes sex discrimination.300

The Court's holding that discrimination on the basis of pregnancy was not sex discrimination is the most disturbing aspect of the case, but other aspects are also troublesome. First, the Court never explained how the exclusion of pregnancy-related disabilities was rationally related to the purpose of the disability program. Naturally, excluding certain disabilities does save money, but the purpose behind the program was not to save money; rather, the purpose was to reduce suffering caused by unemployment resulting from disability.381 Why were pregnancyrelated disabilities excluded instead of various other disabilities, e.g., heart attacks, which are very costly to cover, prostatectomies, which are confined to males, sickle-cell anemia, which is found only in persons of black and sometimes mediterranean ancestry, etc.? The State had presented several arguments, 382 none of which was discussed by the Court. Given the alternative of holding that discrimination on the basis of pregnancy was sex discrimination but that such discrimination was rationally related to the purpose of the State's program for one of the reasons advanced by the State, the Court preferred to hold that no sex discrimination was involved. One is tempted to speculate that, knowing none of the State's theories would stand of itself, and eager for some extraneous reason to uphold the challenged

380 Geduldig v. Aiello, 417 U.S. at 501.

381 CALIF. UNEMPL. INS. CODE § 2601, discussed in Brief for Appellees at 8-9, Geduldig v. Aiello, 417 U.S. 484 (1974).

382 Brief for Appellant at 16-24, Geduldig v. Aiello, 417 U.S. 484 (1974).

383 It has been suggested that Aiello was decided in the way it was because "[n]o one is pushing hard for a tax rise today, least of all members of the Supreme Court almost perfectly wedded to middle-class values." Powe, The Supreme Court and Sex Discrimination, 1 WOMEN L. REP. 1.1 (1974).

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[Vol. 41: 209 statute, the Court had no other choice than to make bad law in this manner. But the most probable explanation is that, despite excellent briefs by the appellees and some amici detailing why discrimination on the basis of pregnancy could not be separated from the whole history of sex discrimination in this country, the Court was unable to comprehend the totality of the problem.

The essential question is why some disability other than disability arising out of pregnancy was not excluded. In 1946, when the California disability program was originally enacted, sex discrimination was even more prevalent than it is today. If a California legislator had been asked why he [pronoun used advisedly] thought pregnancy-related disabilities should be excluded from coverage, it is unlikely that he would have been able to understand the question. Even if he had attempted to respond, he probably would have spoken to the questioner as one would speak to a child below the age of understanding:

Why, women aren't really supposed to work. They worked during the war because the men were all in the armed forces, but now they can go back home and have babies. After all, they don't need to work—they have husbands to take care of them. If a married woman works at all, it is just until she gets pregnant-then she leaves and never comes back. And even the ones who aren't married are just waiting to get hitched so that they can quit work. Besides, it's expensive to cover pregnancy and childbirth.384

In short, the answer was so much a part of the whole myth of woman's place and the whole societal structure erected upon that myth that no one needed to discuss it-it was too deeply ingrained to require any comment. If the Court insists on proof that "distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against [women],"385

384 This is not a direct quote, but it probably is not far afield from what a legislator (or businessman) would have said. See the history of General Electric's disability benefits plan, described in Electrical Workers Brief, supra note 327 at 25-26, Geduldig v. Aiello, 417 U.S. 484 (1974). Gerard Swope, who was president of General Electric when its first disability program was instituted, has been quoted as stating: "Frankly, our theory [for excluding pregnancy-related disabilities from coverage] had been that women did not recognize the responsibilities of life, for they probably were hoping to get married soon and leave the company." D. LOTH, SWOPE OF GE: STORY OF GERARD SWOPE AND GENERAL ELECTRIC IN AMERICAN BUSINESS 155 (1958), quoted in Electrical Workers Brief, supra note 327, at 25, Geduldig v. Aiello, 417 U.S. 484 (1974).

35 Geduldig v. Aiello, 417 U.S. at 496 n.20.

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it will discover that hard proof is often scarce, as it is in some types of race discrimination, because the proof is deeply imbedded in the culture itself.

CONCLUSION

What are the prospects for sex discrimination litigation after Aiello? Two Title VII cases have already been dismissed on the authority of Aiello's footnote 20,386 which throws into doubt many of the EEOC guidelines on sex discrimination. If footnote 20 is followed, it will mean that the concept of "sex-plus," thought to be buried in Phillips v. Martin Marietta Corp.,387 will be exhumed and enthroned in our legal system; and if "sex-plus" lives, equal protection is dead, at least insofar as women are concerned.

The "sex-plus" theory first arose in Title VII cases involving airline policies requiring the termination of employment of stewardesses (but not stewards) upon marriage or upon reaching a certain age. The airlines defended against charges of sex discrimination by denying that they were discriminating on the basis of sex at all. We are not discriminating against all women, they said, just some women, namely, married women and older women.

This reasoning was not ultimately upheld in the stewardess cases,388 but in the meantime similar arguments did convince a majority of the United States Court of Appeals for the Fifth Circuit in Phillips v. Martin Marietta Corp.389 Phillips applied for a job at one of defendant's factories and was told that applications from women with pre-school-age children were not being considered. In a subsequent suit under Title VII charging sex discrimination, Martin Marietta offered evidence to show that seventyfive to eighty per cent of its employees were women, so that no discrimination against women per se could be shown. The district court granted summary judgment for the defendant corpora

386 Communication Workers of America v. AT&T Long Lines Dep't v. City of New York, 379 F. Supp. 679 (S.D.N.Y. 1974). See also Kohr v. Weinberger, 378 F. Supp. 1299 (E.D. Pa. 1974). In a very recent case, however, the Federal District Court for the Northern District of California held that Aiello, because it was decided on equal protection grounds, did not rule out the possibility of overturning, under Title VII, an employer's exclusion of pregnancy from sick leave coverage. Vineyard v. Hollister Elementary School Dist., 43 U.S.L.W. 2217 (Nov. 11, 1974).

387 400 U.S. 542 (1971). See 38 BROOKLYN L. REV. 495 (1971).

388 See, e.g., Lansdale v. United Air Lines Inc., 430 F.2d 134 (5th Cir. 1970) (per curiam). A suit which had been pending against Delta Air Lines was dropped when the company ended its policy of termination of employment upon marriage. Comment, Marital Restrictions on Stewardesses: Is This Any Way to Run an Airline?, 117 U. PA. L. REV. 616, 620 (1969). See Cooper v. Delta Air Lines, Inc., 274 F. Supp. 781 (E.D. La. 1967). 3 Phillips v. Martin Marietta Corp., 411 F.2d 1 (5th Cir.), rehearing denied, 416 F.2d 1257 (5th Cir. 1969) (per curiam), vacated, 400 U.S. 542 (1971).

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tion,300 and, on appeal to the Fifth Circuit, its decision was affirmed. The Fifth Circuit stated:

A per se violation of the Act can only be discrimination based solely on one of the categories, i.e., in the case of sex; women vis-a-vis men. When another criterion of employment is added to one of the classifications listed in the Act, there is no longer apparent discrimination based solely on race, color, religion, sex or national origin. . .

The discrimination [in the case sub judice] was based on a two-pronged qualification, i.e., a woman with pre-school age children. Ida Phillips was not refused employment because she was a woman nor because she had pre-school age children. It is the coalescence of these two elements that denied her the position she desired.392

Chief Judge Brown dissented from the Fifth Circuit's denial of a rehearing. Calling the majority's "coalescence" theory "sexplus," he predicted that, if that theory were upheld, Title VII would be "dead." He was right. If an employer can avoid liability by showing that he discriminates only against young women, unmarried women, married women, pregnant women, women with young children, or women over a certain age-but not against all women-then no woman can be protected against discrimination.

On appeal to the United States Supreme Court, Phillips was reversed in a per curiam opinion.394 This was believed to have put an end to the "sex-plus" theory, but Aiello has raised the spectre of "sex-plus" again-now in the context of the fourteenth amendment rather than Title VII.

The Equal Rights Amendment would, of course, lay the spectre to rest forever if it were interpreted in light of its legislative history. 395 However, even this result becomes uncertain when one considers the tortuous reasoning of Aiello. Additionally, with or without the Equal Rights Amendment, the complete destruction of sex discrimination in all aspects of American society will require judges, legislators, and administrators with an awareness of, and sensitivity to, the subtleties of sex discrimination-qualities which appear to be sadly lacking at the present

time.

300 Phillips v. Martin Marietta Corp., 58 CCH Lab. Cas. 9152 (M.D. Fla. 1968). 301 Phillips v. Martin Marietta Corp., 411 F.2d 1 (5th Cir. 1969).

302 Id. at 3-4.

303 Phillips v. Martin Marietta Corp., 416 F.2d at 1260.

34 Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).

305 See, e.g., Brown, Emerson, Falk, & Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 YALE L.J. 871 (1971).