11 Fair empl.prac.cas. 161, 10 Empl. Prac. Dec. P 10,325 Barbara R. Hutchison, Cross-Appellant v. Lake Oswego School District No. 7, Cross-Appellees

Defendants Lake Oswego School District Board (“the school board”) and its individual members appeal from the judgment of the district court, enjoining the school board from refusing to grant sick leave benefits for absence due to childbirth, and awarding plaintiff Hut-chison lost wages, costs, and attorney’s fees against the school board and its individual members. Hutchison, on the other hand, appeals from the district court’s dismissal of the Lake Oswego School District No. 7 (“the school district”) on Eleventh Amendment grounds. We affirm in part and reverse in part.

Hutchison was employed for two school years by the school district as a part-time junior high school teacher. On January 27, 1973, she gave birth to a-child, necessitating her absence from *963 work for 15 working days. She suffered no complications as a result of either her pregnancy or childbirth. Upon her return to work, she requested that she be allowed sick leave benefits for her absence — she had accrued 15 days sick leave at that time.

The school board refused her request on the basis of § 415.1 of the school district’s Policies and Procedures and Ore.Rev.Stat. § 342.595, both providing for a…

(concurring and dissenting).

I agree that defendants’ conduct does not violate the Equal Protection Clause. But I do not believe it violates Title VII either.

The Supreme Court, in Geduldig v. Aiello, 417 U.S. 484, 496-497 , incl. fn. 20, 94 S.Ct. 2485, 2492 , stated:

The Court was clearly saying that any discrimination in California’s program was not because of sex and that any adverse effect the program’s classifications had on plaintiffs there was not in any way due to their sex. A program with such characteristics would not involve illegal sex bias under Title VII [see 42 U.S.C. § 2000e — 2(a)], and the school district’s sick leave plan is such a program. Plaintiff here has not suggested that the district’s “distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other” [see Geduldig v. Aiello, supra at fn. 20]. On the contrary, the district simply made a reasonable, good faith decision to cover only “illness or injury” in their program and, on good authority, determined that pregnancy is not an illness or injury. (The California program also covered only illnesses and injuries.)

Thus, there…

519 F.2d 961 11 Fair Empl.Prac.Cas. 161 , 10 Empl. Prac. Dec. P 10,325 Barbara R. HUTCHISON, Plaintiff-Appellee, Cross-Appellant, v. LAKE OSWEGO SCHOOL DISTRICT NO. 7 et al., Defendants-Appellants, Cross-Appellees. Nos. 74-3181, 74-3182. United States Court of Appeals, Ninth Circuit. July 21, 1975. Rehearing and Rehearing En Banc Denied Sept. 10, 1975. Robert M. Greening, Jr. (argued), Portland, Ore., for appellant-cross appellee. Carol A. Hewitt (argued), Portland, Ore., for appellee-cross appellant. OPINION Before KOELSCH and CARTER, Circuit Judges, and SCHNACKE, * District Judge. JAMES M. CARTER, Circuit Judge: 1 Defendants Lake Oswego School District Board ("the school board") and its individual members appeal from the judgment of the district court, enjoining the school board from refusing to grant sick leave benefits for absence due to childbirth, and awarding plaintiff Hutchison lost wages, costs, and attorney's fees against the school board and its individual members. Hutchison, on the other hand, appeals from the district court's dismissal of the Lake Oswego School District No. 7 ("the school district") on Eleventh Amendment grounds. We affirm in part and reverse in part.…