Karen deLAURIER, Plaintiff-Appellant, v. the SAN DIEGO UNIFIED SCHOOL DISTRICT and Lester G. Warrenbrock, Defendants-Appellees

588 F.2d 674 18 Fair Empl.Prac.Cas. 1148 , 18 Empl. Prac. Dec. P 8695 Karen deLAURIER, Plaintiff-Appellant, v. The SAN DIEGO UNIFIED SCHOOL DISTRICT and Lester G. Warrenbrock, Defendants- Appellees. No. 75-2096. United States Court of Appeals, Ninth Circuit. Nov. 2, 1978. Rehearing Denied Dec. 29, 1978. Rehearing Denied Feb. 6, 1979. Dale R. Larabee (argued), San Diego, Cal., for plaintiff-appellant. Ralph D. Stern, School Atty. (argued), San Diego, Cal., for defendants-appellees. Appeal from the United States District Court for the Southern District of California. Before HUFSTEDLER and WALLACE, Circuit Judges, and SMITH, * District Judge. WALLACE, Circuit Judge: 1 deLaurier, a school teacher, appeals the decision of the district court that her rights under the Fifth and Fourteenth Amendments and Title VII of the Civil Rights Act of 1964 were not violated when her employer, the San Diego Unified School District, required her to go on leave at the beginning of her ninth month of pregnancy, refused to allow her to use accumulated sick leave benefits during that leave of absence, and declined to guarantee that she would be restored to her former teaching position. Some of the issues…

concurring and dissenting:

The school district’s policy requiring all pregnant teachers to take an involuntary, unpaid leave of absence one month before their expected date of confinement violated Title VII. The majority correctly decides that deLaurier made out a prima facie case of discrimination, but the majority affirms the district court’s decision on the mandato *686 ry termination issue by saying that factual findings, which are not clearly erroneous, established a business necessity defense. That conclusion rests on a misreading of controlling principles of law. In my view, no remand is justified on the denial of sick leave issue because, as a matter of law, the school district cannot establish a defense of business necessity based upon the additional expense of including pregnancy in its sick leave coverage.

I

The school district’s effort to justify its mandatory termination date as a business necessity failed because the district did not prove the job-relatedness of the termination date as it specifically related to teachers over eight months pregnant, and the record showed that there were alternative methods, without a similarly undesirable discriminatory effect,…

deLaurier, a school teacher,' appeals the decision of the district court that her rights under the Fifth and Fourteenth Amendments and Title VII of the Civil Rights Act of 1964 were not violated when her employer, the San Diego Unified School District, required her to go on leave at the beginning of her ninth month of pregnancy, refused to allow her to use accumulated sick leave benefits during that leave of absence, and declined to guarantee that she would be restored to her former teaching position. Some of the issues in this case have become moot; as to the remainder, we affirm in part, vacate and remand in part and reverse and remand in part.

I. Facts and Proceedings Before the District Court

deLaurier has been a full-time teacher at Hale Junior High School in the San Diego Unified School District (the district) since 1971. In August 1973 she became pregnant; in October she notified her principal of this fact. The district’s policy made all pregnant employees eligible for maternity leave and required that such leave be taken no later than the beginning of the ninth month of pregnancy. Those returning to work from maternity leave were required to obtain a physician’s…