General Electric Co. v. Gilbert

429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343, 1976 U.S. LEXIS 178, 1 Employee Benefits Cas. (BNA) 1046, 12 Empl. Prac. Dec. (CCH) 11,240, 13 Fair Empl. Prac. Cas. (BNA) 1657

Opinions

Me. Justice Rehnquist

delivered the opinion of the Court.

Petitioner, General Electric Co.,¹ provides for all of its employees a disability plan which pays weekly nonoccupational sickness and accident benefits. Excluded from the plan’s coverage, however, are disabilities arising from pregnancy. Respondents, on behalf of a class of women employees, brought this action seeking, inter alia2 a declaration that this exclusion constitutes sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. The District Court for the Eastern District of Virginia, following a trial on the merits, held that the exclusion of such pregnancy-related disability benefits from General Electric’s employee disability plan violated Title VII, 375 F. Supp. 367. The Court of Appeals affirmed, 519 F. 2d 661, and we granted certiorari, 423 U. S. 822. We now reverse.

I

As part of its total compensation package, General Electric provides nonoccupational sickness and accident benefits to all employees under its Weekly Sickness and Accident Insurance Plan (Plan) in an amount equal to 60% of an employee’s normal straight-time weekly earnings. These payments are paid to employees who become totally disabled as a result of a nonoccupational sickness or accident. Benefit payments normally start with the eighth day of an employee’s total disability (although if an employee is earlier confined to a hospital as a bed patient, benefit payments will start immediately), and continue up to a maximum of 26 weeks for any one continuous period of disability or successive periods of disability due to the same or related causes.³

The individual named respondents are present or former hourly paid production employees at General Electric’s plant in Salem, Va. Each of these employees was pregnant during 1971 or 1972, while employed by General Electric and each presented a claim to the company for disability benefits under the Plan to cover the period while absent from work as a result of the pregnancy. These claims were routinely denied on the ground that the Plan did not provide disability-benefit payments for any absence due to pregnancy.⁴ Each of the respondents thereafter filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that the refusal of General Electric to pay disability benefits under the Plan for time lost due to pregnancy and childbirth discriminated against her because of sex. Upon waiting the requisite number of days, the instant action was commenced in the District Court.⁵ The complaint asserted a violation of Title VII. Damages were sought as well as an injunction directing General Electric to include pregnancy disabilities within the Plan on the same terms and conditions as other nonoccupational disabilities.

Following trial, the District Court made findings of fact and conclusions of law, and entered an order in which it determined that General Electric, by excluding pregnancy disabilities from the coverage of the Plan, had engaged in sex discrimination in violation of § 703 (a)(1) of Title VII, 42 U. S. C. § 2000e-2 (a)(1). The District Court found that normal pregnancy, while not necessarily either a “disease” or an “accident,” was disabling for a period of six to eight weeks;⁶ that approximately “[t]en per cent of pregnancies are terminated by miscarriage, which is disabling”;⁷ and that approximately 10% of pregnancies are complicated by diseases which may lead to additional disability.⁸ The District Court noted the evidence introduced during the trial, a good deal of it stipulated, concerning the relative cost to General Electric of providing benefits under the Plan to male and female employees,⁹ all of which indicated that, with pregnancy-related disabilities excluded, the cost of the Plan to General Electric per female employee was at least as high as, if not substantially higher than, the cost per male employee.¹⁰

The District Court found that the inclusion of pregnancy-related disabilities within the scope of the Plan would “increase G. E.’s [disability benefits plan] costs by an amount which, though large, is at this time undeterminable.” 375 F. Supp., at 378.. The District Court declined to find that the present actuarial value of the coverage was equal as between men and women,¹¹ but went on to decide that even had it found economic equivalence, such a finding would not in any case have justified the exclusion of pregnancy-related disabilities from an otherwise comprehensive nonoccupational sickness and accident disability plan. Regardless of whether the cost of including such benefits might make the Plan more costly for women than for men, the District Court determined that “[i]f Title VII intends to sexually equalize employment opportunity, there must be this one exception to the cost differential defense.” Id., at 383.

The ultimate conclusion of the District Court was that petitioner had discriminated on the basis of sex in the operation of its disability program in violation of Title VII, id., at 385-386. An order was entered enjoining petitioner ,from continuing to exclude pregnancy-related disabilities from the coverage of the Plan, and providing for the future award of monetary relief to individual members of the class affected. Petitioner appealed to the Court of Appeals for the Fourth Circuit, and that court by a divided vote affirmed the judgment of the District Court.

Between the date on which the District Court’s judgment was rendered and the time this case was decided by the Court of Appeals, we decided Geduldig v. Aiello, 417 U. S. 484 (1974), where we rejected a claim that a very similar disability program established under California law violated the Equal Protection Clause of the Fourteenth Amendment because that plan’s exclusion of pregnancy disabilities represented sex discrimination. The majority of the Court of Appeals felt that Geduldig was not controlling because it arose under the Equal Protection Clause of the Fourteenth Amendment, and not under Title VII, 519 F. 2d, at 666-667. The dissenting opinion disagreed with the majority as to the impact of Geduldig, 519 F. 2d, at 668-669. We granted certiorari to consider this important issue in the construction of Title VII.¹²

II

Section 703 (a)(1) provides in relevant part that it shall be an unlawful employment practice for an employer

“to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin,'' 42 U. S. C. § 2000e-2 (a)(1).

While there is no necessary inference that Congress, in choosing this language, intended to incorporate into Title VII the concepts of discrimination which have evolved from court decisions construing the Equal Protection Clause of the Fourteenth Amendment, the similarities between the congressional language and some of those decisions surely indicate that the latter are a useful starting point in interpreting the former. /Particularly in the case of defining the term “discrimination, which Congress has nowhere in Title VII defined, those cases afford an existing body of law analyzing and discussing that term in a legal context not wholly dissimilar to the concerns which Congress manifested in enacting Title VII. \We think, therefore, that our decision in Geduldig v. Aiello, supra, dealing with a strikingly similar disability plan, is quite relevant in determining whether or not the pregnancy exclusion did discriminate on the basis of sex. In Geduldig, the disability insurance system was funded entirely from contributions deducted from the wages of participating employees, at a rate of 1% of the employee’s salary up to an annual maximum of $85. In other relevant respects, the operation of the program was similar to General Electric’s disability benefits plan, see 417 U. S., at 487-489.

We rejected appellee’s equal protection challenge to this statutory scheme. We first noted:

“We cannot agree that the exclusion of this disability from coverage amounts to invidious discrimination under the Equal Protection Clause. California does not discriminate with respect to the persons or groups which are eligible for disability insurance protection under the program. The classification challenged in this case relates to the asserted underinclusiveness of the set of risks that the State has selected to insure.” Id., at 494.

This point was emphasized again, when later in the opinion we noted:

“[T]his case is thus a far cry from cases like Reed v. Reed, 404 U. S. 71 (1971), and Frontiero v. Richardson, 411 U. S. 677 (1973), involving discrimination based upon gender 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.

“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.” Id., at 496-497, n. 20.

The quoted language from Geduldig leaves no doubt that our reason for rejecting appellee’s equal protection claim in that case was that the exclusion of pregnancy from coverage under California’s disability-benefits plan was not in itself discrimination based on sex.

We recognized in Geduldig, of course, that the fact that there was no sex-based discrimination as such was not the end of the analysis, should it be shown “that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other,” ibid. But we noted that no semblance of such a showing had been made:

“There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program. There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.” Id., at 496-497.

Since gender-based discrimination had not been shown to exist either by the terms of the plan or by its effect, there was no need to reach the question of what sort of standard would govern our review had there been such a showing. See Frontiero v. Richardson, 411 U. S. 677 (1973); Reed v. Reed, 404 U. S. 71 (1971).

The Court of Appeals was therefore wrong in concluding that the reasoning of Geduldig was not applicable to an action under Title VII. Since it is a finding of sex-based discrimination that must trigger, in a case such as this, the finding of an unlawful employment practice under § 703 (a)(1), Geduldig is precisely in point in its holding that an exclusion of pregnancy from a disability-benefits plan providing general coverage is not a gender-based discrimination at all.

There is no more showing in this case than there was in Geduldig that the exclusion of pregnancy benefits is a mere “pretext t] designed to effect an invidious discrimination against the members of one sex or the other.” The Court of Appeals expressed the view that the decision in Geduldig had actually turned on whether or not a conceded discrimination was “invidious” but we think that in so doing it misread the quoted language from our opinion. As we noted in that opinion, a distinction which on its face is not sex related might nonetheless violate the Equal Protection Clause if it were in fact a subterfuge to accomplish a forbidden discrimination. But we have here no question of excluding a disease or disability comparable in all other respects to covered diseases or disabilities and yet confined to the members of one race or sex. Pregnancy is, of course, confined to women, but it is in other ways significantly different from the typical covered disease or disability. The District Court found that it is not a “disease” at all, and is often a voluntarily undertaken and desired condition, 375 F. Supp., at 375, 377. We do not therefore infer that the exclusion of pregnancy disability benefits from petitioner’s plan is a simple pretext for discriminating against women. . The contrary arguments adopted by the lower courts and expounded by our dissenting Brethren were largely rejected in Geduldig.

The instant suit was grounded on Title VII rather than the Equal Protection Clause, and our cases recognize that a prima facie violation of Title VII can be established in some circumstances upon proof that the effect of an otherwise facially neutral plan or classification is to discriminate against members of one class or another. See Washington v. Davis, 426 U. S. 229, 246-248 (1976). For example, in the context of a challenge, under the provisions of § 703 (a) (2),¹³ to a facially neutral employment test, this Court held that a prima facie case of discrimination would be established if, even absent proof of intent, the consequences of the test were “invidiously to discriminate on the basis of racial or other impermissible classification,” Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971). Even assuming that it is not necessary in this case to prove intent to establish a prima facie violation of § 703 (a)(1), but cf. McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-806 (1973), the respondents have not made the requisite showing of gender-based effects.¹⁴

As in Geduldig, respondents have not attempted to meet the burden of demonstrating a gender-based discriminatory effect resulting from the exclusion of pregnancy-related disabilities from coverage.¹⁵ Whatever the ultimate probative value of the evidence introduced before the District Court on this subject in the instant case, at the very-least it tended to illustrate that the selection of risks covvered by the Plan did not operate, in fact, to discriminate against women. As in Geduldig, we start from the indisputable baseline that “[t]he fiscal and actuarial benefits of the program . . . accrue to members of both sexes,” 417 U. S., at 497 n. 20. We need not disturb the findings of the District Court to note that neither is there a finding, nor was there any evidence which would support a finding, that the financial benefits of the Plan “worked to discriminate against any definable group or class in terms of the aggregate risk protection derived by that group or class from the program,” id., at 496. The Plan, in effect (and for all that appears), is nothing more than an insurance package, which covers some risks, but excludes others, see id., at 494, 496-497.¹⁶ The “package” going to relevant identifiable groups we are presently concerned with — General Electric’s male and female employees — covers exactly the same categories of risk, and is facially nondiscriminatory in the sense that “[t]here is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.” Id., at 496-497. As there is no proof that the package is in fact worth more to men than to women,pit is- impossible to find any gender-based discriminatory effect in this scheme simply because women disabled as a result of pregnancy do not receive benefits; that is to say, gender-based discrimination does not result simply because an employer’s disability-benefits plan is less than all-inclusive.¹⁷ For all that appears, pregnancy-related disabilities constitute an additional risk, unique to women, and the failure to compensate them for this risk does not destroy the presumed parity of the benefits, accruing to men and women alike, which results from the facially evenhanded inclusion of risks. To hold otherwise would endanger the commonsense notion that an employer who has no disability benefits program at all does not violate Title VII even though the “underinclusion” of risks impacts, as a result of pregnancy-related disabilities, more heavily upon one gender than upon the other.¹⁸ Just as there is no facial gender-based discrimination in that case, so, too, there is none here.

Ill

We are told, however, that this analysis of the congressional purpose underlying Title VII is inconsistent with the guidelines of the EEOC, which, it is asserted, are entitled to “great deference” in the construction of the Act, Griggs, 401 U. S., at 433-434; Phillips v. Martin Marietta Corp., 400 U. S. 542, 545 (1971) (Marshall, J., concurring). The guideline upon which respondents rely most heavily was promulgated in 1972, and states in pertinent part:

“Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment. . . . [Benefits] shall be applied to disability due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.” 29 CFR § 1604.10 (b) (1975).¹⁹

In evaluating this contention it should first be noted that Congress, in enacting Title VII, did not confer upon the EEOC authority to promulgate rules or regulations pursuant to that Title. Albemarle Paper Co. v. Moody, 422 U. S. 405, 431 (1975).²⁰ This does not mean that EEOC guidelines are not entitled to consideration in determining legislative intent, see Albemarle, supra; Griggs v. Duke Power Co., supra, at 433-434; Espinoza v. Farah Mfg. Co., 414 U. S. 86, 94 (1973). But it does mean that courts properly may accord less weight to such guidelines than to administrative regulations which Congress has declared shall have the force of law, see Standard Oil Co. v. Johnson, 316 U. S. 481, 484 (1942), or to regulations which under the enabling statute may themselves supply the basis for imposition of liability, see, e. g., § 23 (a), Securities Exchange Act of 1934, 15 U. S. C. § 78w (a). The most comprehensive statement of the role of interpretative rulings such as the EEOC guidelines is found in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), where the Court said:

“We consider that the rulings, interpretations and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

The EEOC guideline in question does not fare well under these standards. It is not a contemporaneous interpretation of Title VII, since it was first promulgated eight years after the enactment of that Title. More importantly, the 1972 guideline flatly contradicts the position which the agency had enunciated at an earlier date, closer to the enactment of the governing statute. An opinion letter by the General Counsel of the EEOC, dated October 17, 1966, states:

“You have requested our opinion whether the above exclusion of pregnancy and childbirth as a disability under the long-term salary continuation plan would be in violation of Title VII of the Civil Rights Act of 1964.

“In a recent opinion letter regarding pregnancy, we have stated, ‘The Commission policy in this area does not seek to compare an employer’s treatment of illness or injury with his treatment of maternity since maternity is a temporary disability unique to the female sex and more or less to be anticipated during the working life of most women employees.’ Therefore, it is our opinion that according to the facts stated above, a company’s group insurance program which covers hospital and medical expenses for the delivery of employees’ children, but excludes from its long-term salary continuation program those disabilities which result from pregnancy and childbirth would not be in violation of Title VII.” App. 721-722.

A few weeks later, in an opinion letter expressly issued pursuant to 29 CFR § 1601.30 (1975), the EEOC’s position was that “an insurance or other benefit plan may simply exclude maternity as a covered risk, and such an exclusion would not in our view be discriminatory,” App. 735.

We have declined to follow administrative guidelines in the past where they conflicted with earlier pronouncements of the agency. United Housing Foundation, Inc. v. Forman, 421 U. S. 837, 858-859, n. 25 (1975); Espinoza v. Farah Mfg. Co., supra, at 92-96. In short, while we do not wholly discount the weight to be given the 1972 guideline, it does not receive high marks when judged by the standards enunciated in Skidmore, supra.

There are also persuasive indications that the more recent EEOC guideline sharply conflicts with other indicia of the proper interpretation of the sex-discrimination provisions of Title VII. The legislative history of Title VII’s prohibition of sex discrimination is notable primarily for its brevity. Even so, however, Congress paid especial attention to the provisions of the Equal Pay Act, 29 U. S. C. § 206(d),²¹ when it amended § 703 (h) of Title VII by adding the following sentence:

“It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206 (d) of Title 29.” 42 U. S. C. §2000^-2 (h).

This sentence was proposed as the Bennett Amendment to the Senate bill, 110 Cong. Rec. 13647 (1964), and Senator Humphrey, the floor manager of the bill, stated that the purpose of the amendment was to make it “unmistakably clear” that “differences of treatment in industrial benefit plans, including earlier retirement options for women, may continue in operation under this bill, if it becomes law,” id., at 13663-13664. Because of this amendment, interpretations of § 6 (d) of the Equal Pay Act are applicable to Title VII as well, and an interpretive regulation promulgated by the Wage and Hour Administrator under the Equal Pay Act explicitly states:

“If employer contributions to a plan providing insurance or similar benefits to employees are equal for both men and women, no wage differential prohibited by the equal pay provisions will result from such payments, even though the benefits which accrue to the employees in question are greater for one sex than for the other. The mere fact that the employer may make unequal contributions for employees of opposite sexes in such a situation will not, however, be considered to indicate that the employer’s payments are in violation of section 6 (d), if the resulting benefits are equal for such employees.” 29 CFR § 800.116 (d) (1975).

Thus, even if we were to depend for our construction of the critical language of Title YII solely on the basis of “deference” to interpretative regulations by the appropriate administrative agencies, we would find ourselves pointed in diametrically opposite directions by the conflicting regulations of the EEOC, on the one hand, and the Wage and Hour Administrator, on the other. Petitioner’s exclusion of benefits for pregnancy disability would be declared an unlawful employment practice under §703 (a)(1), but would be declared not to be an unlawful employment practice under § 703 (h).

We are not reduced to such total abdication in construing the statute. The EEOC guideline of 1972, conflicting as it does with earlier pronouncements of that agency, and containing no suggestion that some new source of legislative history had been discovered in the intervening eight years, stands virtually alone. Contrary to it are the consistent interpretation of the Wage and Hour Administrator, and the quoted language of Senator Humphrey, the floor manager of Title VII in the Senate. They support what seems to us to be the “plain meaning” of the language used by Congress when it enacted §703 (a)(1).

The concept of “discrimination,” of course, was well known at the time of the enactment of Title VII, having been associated with the Fourteenth Amendment for nearly a century, and carrying with it a long history of judicial construction. When Congress makes it unlawful for an employer to “discriminate . . . because of . . . sex . . . ,” without further explanation of its meaning, we should not readily infer that it meant something different from what the concept of discrimination has traditionally meant, cf. Morton v. Mancari, 417 U. S. 535, 549 (1974); Ozawa v. United States, 260 U. S. 178, 193 (1922). There is surely no reason for any such inference here, see Gemsco v. Walling, 324 U. S. 244, 260 (1945).

We therefore agree with petitioner that its disability-benefits plan does not violate Title VII because of its failure to cover pregnancy-related disabilities. The judgment of the Court of Appeals is

Reversed.

1 All the parties to the suit joined in petitioning for a writ of certiorari. General Electric was the moving party before the Court of Appeals, where the judgment of the District Court was affirmed. The parties have agreed that General Electric is to be deemed the petitioner for purposes of briefing and oral argument, a convention we adopt for the writing of this opinion.

2 Respondents also represent a class of women employees who have been denied such benefits since September 14, 1971, and seek damages arising from this denial.

3 With respect to the Plan, General Electric is, In effect, a self-insurer. While General Electric has obtained, for employees outside California, an insurance policy from the Metropolitan Life Insurance Co., this policy involves the payment of a tentative premium only, subject to adjustment in the light of actual experience. Pretrial Stipulation of Facts, ¶ 11, App. 176-176. In effect, -therefore, the Metropolitan Life Insurance Co. is used to provide the administrative service of processing claims, while General Electric remains, for all practical purposes, a self-insurer.

4 Additionally, benefit payment coverage under the Plan for all disabilities, whether or not related to pregnancy, terminates “on the date you cease active work because of total disability or pregnancy, except that if you are entitled to Weekly Benefits for a disability existing on such date of cessation” benefit payments will be continued in accordance with the provisions of the Plan. In cases of personal leave, layoff, or strike, however, the coverage for future nonoccupational sickness or accident disability is continued for 31 days, ibid.

In the case of respondent Emma Furch, who took a pregnancy leave on April 7, 1972, and who was hospitalized with a non-pregnancy-related pulmonary embolism on April 21, 1972, a claim was filed for disability benefits under the Plan solely for the period of absence due to the pulmonary embolism. The claim was rejected “since such benefits have been discontinued in accordance with the provisions of the General Electric Insurance Plan.”

5 Plaintiffs in the action were seven female employees; the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (IUE); and the latter’s affiliate, Local 161, which is a joint collective-bargaining representative, with the IUE, of the hourly paid production and maintenance employees at General Electric’s Salem, Va., plant.

6 The District Court made the following “specific findings”:

“1. While pregnancy is perhaps most often voluntary, a substantial incidence of negligent or accidental conception also occurs.

“2. Pregnancy, per se, is not a disease.

“3. A pregnancy without complications is normally disabling for a period of six to eight weeks, which time includes the period from labor and delivery, or slightly before, through several weeks of recuperation.” 375 F. Supp. 367, 377.

7 Ibid.

8 “Five percent of pregnancies are complicated by diseases which are found in nonpregnant persons but which may have been stimulated by pregnancy. Five percent of pregnancies are complicated by pregnancy-related diseases. These complications are diseases which may lead to disability.” Ibid.

9 The District Court included in its opinion the following charts from a stipulation dated July 24,1973:

“143. During 1970, GE’s experience, by sex, with respect to claims under

its weekly sickness and accident disability insurance coverage was as follows:

Male Female

No. of claims (new) 19,045 15,509

Average duration of claim 48 days 52 days

No. of new claims per thousand employees 77 173

Average No. of employees covered 246,492 89,705

Total benefits paid $11,279,110 $7,405,790

Average cost per insured employee of total benefits paid $45.76 $82.57

“144. During 1971, GE's experience, by sex, with respect to claims under its weekly sickness and accident disability insurance coverage was as follows:

Male Female

No. of claims (new) 22,987 17,719

Average duration of claim 47 days 52 days

No. of new claims per thousand employees 99 217

Average No. of employees covered 231,026 81,469

Total benefits paid $14,343,000 $9,191,195

Average cost per insured employee of total benefits paid $62.08 $112.91”

10 At trial, General Electric introduced, in addition to the material cited in n. 9, supra, the testimony of Paul Jackson, an actuary, who calculated that the Plan presently “costs 170% more for females than males . . . .” Id., at 378.

11 “The present plan is objectionable in that it excludes from coverage a unique disability which affects only members of the female sex, while no suggestion is made to exclude disabilities which can be said to affect only males. Additionally, the Court gives no weight to the suggestion that the actuarial value of the coverage now provided is equalized as between men and women. Defenses must be bottomed on evidence, and such, in this regard, is lacking here.

“Whatever inferences may be suggested by the statistical data presented, the Court simply cannot presume to draw any precise conclusions as to the actuarial value of the coverage provided under the present plan, or the effect of including pregnancy related disabilities on the basis of that limited data.” Id., at 382-383.

12 As noted, supra, at 127 n. 1, this is a joint petition. Respondents have presented several additional questions, not all of which merit treatment in this opinion. We have concluded that they are all without merit.

13 This subsection provides that it shall be an unlawful employment practice for an employer

“(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e-2 (a) (2).

14 Respondents, who seek to establish discrimination, have the traditional civil litigation burden of establishing that the acts they complain of constituted discrimination in violation of Title VII. Albemarle Paper Co. v. Moody, 422 U. S. 405, 425 (1975); McDonnell Douglas Corp. v. Green, 411 U. S., at 802. In Griggs, the burden placed on the employer “of showing that any given requirement must have a manifest relationship to the employment in question,” 401 U. S., at 432, did not arise until discriminatory effect had been shown, Albemarle, supra, at 425.

15 Absent a showing of gender-based discrimination, as that term is defined in Geduldig, or a showing of gender-based effect, there can be no violation of §703 (a)(1).

16 That General Electric self-insures does not change the fact that it is, in effect, acting as an insurer, just as the State of California was acting in Geduldig, 417 U. S., at 492.

17 Absent proof of different values, the cost to “insure” against the risks is, in essence, nothing more than extra compensation to the employees, in the form of fringe benefits. If the employer were to remove the insurance fringe benefits and, instead, increase wages by an amount equal to the cost of the “insurance,” there would clearly be no gender-based discrimination, even though a female employee who wished to purchase disability insurance that covered all risks would have to pay more than would a male employee who purchased identical disability insurance, due to the fact that her insurance had to cover the “extra” disabilities due to pregnancy. While respondents seem to acknowledge that the failure to provide any benefit plan at all would not constitute sex-based discrimination in violation of Title VII, see n. 18, infra, they illogically also suggest that the present scheme does violate Title VII because:

“A female must spend her own money to buy a personal disability policy covering pregnancy disability if she wants to be fully insured against a period of disability without income, whereas a male without extra expenditure is fully insured by GE against every period of disability.” Supplemental Brief for Respondents on Reargumient 11. Yet, in both cases — the instant case and the case where there is no disability coverage at all — the ultimate result is that a woman who wished to be fully insured would have to pay an incremental amount over her male counterpart due solely to the possibility of pregnancy-related disabilities. Title VIFs proscription on discrimination does not, in either case, require the employer to pay that incremental amount. The District Court was wrong in assuming, as it did, 375 F. Supp., at 383, that Title VII’s ban on employment discrimination necessarily means that “greater economic benefit [s]” must be required to be paid to one sex or the other because of their differing roles in “the scheme of human existence.”

18 Respondents tacitly admit that this , situation would not violate Title VII. They acknowledge that “GE had no obligation to establish any fringe benefit program,” Brief for Respondents 143. Moreover, the difficulty with their contention that General Electric engaged in impermissible sex discrimination is vividly - portrayed in their closing suggestion that “[i]f paying for pregnancy discriminates within the sphere of classification by sex, so does the failure to pay,” Response of Respondents to Reply Brief for Petitioner on Reargument 7. As that statement, and its converse, indicate, perceiving the issue in terms of “sex discrimination” quickly places resolution of this issue into a no-win situation. See also Supplemental Brief for Respondents on Reargument 59 (“[W]e believe that imposing on employees either unequal costs when benefits are equal or unequal benefits when costs are equal violates the right of each individual employee to be treated equally with each individual employee of the opposite sex . . .”). Troublesome interpretative problems such as this reinforce our belief that Congress, in prohibiting sex-based discrimination in Title VII, did not intend to depart from the longstanding meaning of “discrimination,” cf. Jefferson v. Hackney, 406 U. S. 535, 548-549 (1972).

19 The other regulation cited by respondents, 29 CFR § 1604.9 (b) (1975), simply restates the statutory proposition that it is an unlawful employment practice to discriminate “between men and women with regard to fringe benefits.”

20 The EEOC has been given “authority from time to time to issue . . . suitable procedural regulations to carry out the provisions of this sub-chapter,” §713 (a), 42 U. S. C. § 2000e-12 (a). No one contends, however, that the above-quoted regulation is procedural in nature or in effect.

21 Section 6 (d)(1) of the Equal Pay Act, 29 U. S. C. §206 (d)(1), provides, in pertinent part:

“No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex... .”