1 Current attitudes about equal treatment of the sexes are not new; they have been held by large numbers of persons for generations. What is new is that the views have finally become politically important perhaps dominant which gives them a misleading appearance of novelty.Google Scholar

It is plausible that injustice once perceived should be corrected forthwith, but unplanned changes in established and complicated institutions can have unintended and seriously harmful consequences. Moreover, questions of “justice” are often more complex than at first they appear to be.Google Scholar

“Desexing” the statutes provides an apt illustration of the possible adverse effects of precipitate action. A prestigious legislative committee in a prominent state recently proposed to change pronouns in state statutes akin to the married women's property legislation in England. Legislators had already done this with other statutes, harmlessly, except for the barbarities introduced into the language. It did not initially occur to the committee members that to eliminate what they thought was mere male-oriented treatment of gender in statutory language might possibly reinstate portions of the common law of property, setting back by a century the slow process by which women had become emancipated with respect to property ownership. Needless to say, the project was abandoned once the difficulties were seen. See also Alfred Friendly, Personipulating the Language, as published by TWA Ambassador, Oct. 1978, at 20, with permission of the Los Angeles Times/Washington Post News Service, asserting that many of the questioned words were not gender-related at all but etymologically refer to man as a species, which includes women.Google Scholar

2 Ruth Bader Ginsburg, Gender in the Supreme Court: The 1973 and 1974 Terms, 1975 Supreme Court Review I n.1. See also Gerald D. Martin, Gender Discrimination in Pension Plans, 43 J. Risk & Ins. 203 (1976).Google Scholar

3 435 U.S. 702 (1978).Google Scholar

4 Cf. Reed v. Reed, 404 U.S. 71 (1971) (statutory preference for men to be administrators violates equal protection clause); Frontiero v. Richardson, 411 U.S. 677 (1973) (federal statutes on fringe benefits for armed forces violate due process clause of Fifth Amendment by differential treatment of the sexes).Google Scholar

5 A series of cases challenging the legality of the TIAA-CREF annuity system for higher education has such potential importance. See note 26 infra. Google Scholar

6 Infra at 92, 126.Google Scholar

7 As contrasted with a “defined contributions” or “money purchase” plan, in which the employer contributes defined amounts which are then used to purchase whatever retirement benefits they and the earnings on their investment suffice to buy. See infra at 100-101 for the basic though simplified calculations. The defined contributions are usually a percentage of salary. Both the defined benefit and defined contribution types may be contributory, i.e., the employee may also contribute toward the pension benefits; but neither has to be contributory.Google Scholar

8 The Plan is not in the record. 435 U.S. 702, 705 n.3 (1978). Formulas for such defined benefit plans vary greatly. The base salary may be the career average, or a three-, five-, or ten-year average of the highest salary period of the career, or of the last period of years, or indeed of whatever else may be agreed upon. See, e.g., William C. Greenough & Francis P. King, Benefit Plans in American Colleges 31-35, 50-51 (New York: Columbia University Press, 1969). The Plan is described in detail in Department of Water and Power, City of Los Angeles, Retirement, Disability and Death Benefit Plan: General Information (Oct. 1971) (hereinafter cited as The Plan). See esp. at 9, 27-28.Google Scholar

9 435 U.S. 702, 704 (1978) (first sentence of Justice Stevens's majority opinion). As Justice Stevens points out, a large part of the differential seems to be based on smoking habits: men smoke and inhale more than women. Id. at 709, 710, n.17. See note 58 infra. But even if the difference caused by more males smoking were eliminated, there would still be a large difference. “A large number of studies on both animals and human beings show almost universal inferior male longevity in the animal kingdom.” Robert D. Retherford, The Changing Sex Differential in Mortality 101 (Westport, Conn.: Greenwood Press, 1975). The Court cites this useful study only to support the one point thought to support its position, ignoring many other parts of the study that throw more light on the subject. See note 58 infra. If the differential in contributions is erroneously calculated, or becomes erroneous because of changing conditions, it should be challenged and changed, but the case would then turn on a mere factual error. It has real interest only if women as a class do live longer than men. They do. See note 79 infra for life expectancy at various ages. See Retherford, supra, passim, for extensive discussion about facts and his interpretation of the reasons for them.Google Scholar

10 Some other options used sex as a factor. The Plan, supra note 8, at 18, 19.Google Scholar

11 435 U.S. 702, 706 (1978). This statement is seriously misleading. The Plan draws no distinctions in employee contributions or in monthly benefits. But because women live longer on average, the aggregate benefits to women are obviously greater, and the contributions from someone on their behalf must also be greater, for the accumulated contributions for each person, man or woman, must be actuarially sufficient if the fund is to remain solvent. The larger amounts needed for the women must come either from the employer as increased total contributions, or from the men as reduced monthly benefits. There is no one else to provide them. “Regardless of what one individual woman may do in the way of paying in and taking out, if women in the totality are to take out more than their male counterparts, either they, or someone else, must pay in more. Even though an individual woman may prove to be shortlived, to add her to the group requires a larger premium contribution than if she had been a man.”EEOC v. Colby College, 439 F. Supp. 631 (Me.), rev'd and remanded, 539 F.2d 1139, 1144-45 (1st Cir. 1978).Google Scholar

12 42 U.S.C. § 2000e-2(a)(1) (1976):Google Scholar

(a) Employer practices.Google Scholar

It shall be an unlawful employment practice for an employerGoogle Scholar

(1) to fail or refuse to hire or to discharge any individual, or otherwise 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.Google Scholar

13 Manhart v. City of Los Angeles, Dep't of Water & Power, 553 F.2d 581, 592 (9th Cir. 1976). The date chosen was when the Equal Employment Opportunity Commission (EEOC) amended its guidelines to make clear the illegality (in EEOC'S view) of requiring larger contributions from women. See dissenting opinion of Marshall, J., 435 U.S. 702, 730 (1978).Google Scholar

14 The potentially devastating impact may be seen in more realistic perspective if one adds to it the already existing problem (for issuers of annuities) of a striking increase in the life expectancy of annuitants. The rate of increase had seemed relatively slow, steady, and predictable until recently. But within the past five years there has been a sudden increase in life expectancy of a full year at 65 years of age. (The increase had been only 1.2 years in the prior two decades.) Wall Street J., Nov. 9, 1978, at 1, col. 5. Such a sharp increase could create problems for annuities.Google Scholar

15 Justice Blackmun's brief opinion is puzzling. What he does say, however, suggests that he should have joined the dissent, making the division of the Court on the main issue a more sharply focused 5-3 split. 12.Google Scholar

16 The Bennett amendment was added to the bill introduced to amend Title VII to resolve a possible inconsistency between Title VII and the Equal Pay Act resulting from the addition of discrimination on the basis of sex to the former. It resolved the inconsistency by making the Equal Pay Act primary if inconsistency exists and thus permitted discrimination between the sexes on certain grounds, one of which is when the “differential is based on any other factor other than sex.”See infra at 123-25.Google Scholar

17 429 U.S. 125 (1976) (General Electric's disability plan not containing pregnancy benefits did not violate Title VII. It did not treat women differently qua women, nor was an adverse disparate effect shown. Brennan, J., in dissent thought the record showed that exclusion of pregnancy was part of a purposeful downgrading of women's role in the labor force.)Google Scholar

18 435 U.S. 702, 711 (1978).Google Scholar

19 Id. at 717-18.Google Scholar

20 Justice Marshall joined the first three parts of the opinion; in format they included the Transitional Paragraph's limitation on the scope of the decision. His views in related cases lead one to suspect that his apparent agreement with that paragraph may have been inadvertent, however. If that guess is correct, the paragraph would reflect the sentiment of only six of the eight participating justices, of four by explicit adoption and of two because agreement with the qualification is probably (though not inevitably) subsumed under their disagreement with the result. Thus, by a 6-1 (or at most 2) majority, and possibly unanimously, the Court seems to have seen this case as extremely narrow and approached the area with commendable caution. For Justice Marshall's views in related cases, see, e.g., General Elec. Co. v. Gilbert, 429 U.S. 125, 146-60 (1976) (joining Justice Brennan's dissenting opinion); Geduldig v. Aiello, 417 U.S. 484, 497 ff. (1974) (with Justice Douglas joining Justice Brennan's dissenting opinion). Justice Brennan took no part in Manhart, so that his views are, for purposes of analyzing the case, irrelevant, whether predictable or not. Justice Douglas has retired since Geduldig. Google Scholar

21 Employer contributions were 14.84 percent greater for females, which was clear disparate treatment adverse to males. See note 22 infra. Google Scholar

22 “Disparate treatment” is the oldest theory of illegal discrimination; “disparate impact” is one of later development. Barbara Lindemann Schlei & Paul Grossman, Employment Discrimination Law 1 (Washington, D.C.: Bureau of National Affairs, 1976). Disparate treatment seems to have been the initial concern of Congress when it passed Title VII. Id. at 15. Both were explicitly and separately discussed in General Elec. Co. v. Gilbert, 429 U.S. 125 (1976), and were mentioned without explication in Manhart, 435 U.S. 702, 715-16 (1978). Schlei and Grossman, at 15, recognize that discrimination is not “unlawful unless constitutionally or statutorily forbidden.” They have examined other possible statutory sources for a prohibition against discrimination on the ground of sex, either generally or only if it is invidious. In particular, they have examined the Civil Rights Acts of 1866 and 1871, which have received a new infusion of vigor in recent years. Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), in dispensing with the state-action requirement under the Civil Rights Act of 1866, held that § 1982 prohibited certain private acts of “discrimination against” nonwhite citizens: “On its face, therefore, § 1982 appears to prohibit all discrimination against Negroes in the sale or rental of property discrimination by private owners as well as discrimination by public authorities.”Id. at 421. “The overwhelming weight of authority holds § 1981 not applicable to discrimination based on sex.” Schlei & Grossman, supra, at 610. On the other hand, § 1983, deriving from the Civil Rights Act of 1871, which was based on the Fourteenth Amendment, has been held to apply to invidious discrimination on the basis of sex. Weise v. Syracuse Univ., 522 F.2d 397 (2d Cir. 1975). But the state-action requirement also applies, greatly limiting the application of the act. Id. Cohen v. Illinois Inst. of Technology, 524 F.2d 818 (7th Cir. 1975) (opinion by Stevens, J., which makes it of particular interest in discussing Manhart). Section 1985, derived from the 1871 act, deals with conspiracies. It is not limited to state action, nor to race, but is limited by the other requirements of a conspiracy and in particular that two or more persons conspire together. It does not establish a general federal tort law. Schlei & Grossman, supra, at 630-35.Google Scholar

23 Infra at 116-18.Google Scholar

24 The EEOC; the Wage and Hour Division of the Department of Labor; the Office of Federal Contract Compliance (OFCC), also in the Department of Labor; and the Department of Health, Education, and Welfare (HEW). See Merton C. Bernstein & Lois G. Williams, Title VII and the Problem of Sex Classifications in Pension Programs, 74 Colum. L. Rev. 1203, 1208 (1974).Google Scholar

25 43 Fed. Reg. 38,029-32, 38,057-58 (1978).Google Scholar

26 E.g., EEOC v. Colby College, 439 F. Supp. 631 (Me.), rev'd and remanded, 589 F.2d 1139 (1st Cir. 1978); Spirt v. TIAA, 416 F. Supp. 1019 (S.D.N.Y. 1976). “[A]t least seven colleges and universities are engaged in litigation of this issue, and other lawsuits are threatened.” American Association of Community and Junior Colleges et al., Comments on the Department of Labor's Proposed Amendments to the Interpretative Bulletin on the Equal Pay Act of 1963, at 1, mimeographed, Oct. 23, 1978. Since the foregoing statement was made, an eighth lawsuit has begun. In addition, four administrative proceedings before EEOC are in progress. Further, there are currently two proceedings before comparable state agencies. List supplied to author by TIAA, March 1979. TIAA (Teachers Insurance and Annuity Association) is a nonprofit, legal reserve life insurance company founded in 1918 by the Carnegie Foundation for the Advancement of Teaching to serve faculty members in higher education. CREF (College Retirement Equities Fund) is a companion corporation to TIAA, created in 1952 to provide variable annuities to those participating in the TIAA system. Comments of Teachers Insurance and Annuity Association of America and the College Retirement Equities Fund on Proposed Amendments to the Equal Pay Act Interpretative Bulletin and to the Office of Federal Contract Compliance Program Sex Discrimination Guidelines 2, mimeographed (1978).Google Scholar

27 Among other things, the EEOC campaign seeks to expand direct application of Title VII to TIAA by almost unbelievably convoluted logic:Google Scholar

That the use of the term “employer” in Sec. 703(a) does not establish a relationship to which the proscriptions of that section apply is indicated by the wording of Sec. 703(a)(1) and 703(a)(2). Section 703(a)(1), in contrast to Section 703(a)(2), does not limit its prohibitions to discrimination against “employees” or “applicants for employment”, but prohibits discrimination against any individual on the basis of any of the enumerated criteria.Google Scholar

Thus, the fact that the women claiming to be aggrieved were not Respondent-Insurer's employees does not bar the Commission's jurisdiction over the charge against TIAA-CREF. The operative factor is Respondent-Insurer's ability to deny them an employment benefit.Google Scholar

Decision in National Organization for Women v. Eastern Mich. Univ. and TIAA-CREF, Charge no. TDT3-8012, at 3 (EEOC, Detroit, Oct. 20, 1978) (xerographic copy of typed version on EEOC letterhead). The language of § 703(a)(1), (2) is as follows:Google Scholar

(a) It shall be an unlawful employment practice for an employerGoogle Scholar

(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; orGoogle Scholar

(2) to limit, segregate, or classify his employees or applicants for employment 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.Google Scholar

42 U.S.C. § 2000e-(a)(1), (2) (1976). It escapes the discriminating reader how EEOC is able to interpret statutory language stating that certain action by an employer constitutes an unlawful employment practice as making it unlawful for a party not the employer to engage in that action.Google Scholar

28 29 C.F.R. § 1604.9(b), (e), (t) (1978):Google Scholar

….Google Scholar

(b) It shall be an unlawful employment practice for an employer to discriminate between men and women with regard to fringe benefits.Google Scholar

….Google Scholar

(e) It shall not be a defense under Title [VII] to a charge of sex discrimination in benefits that the cost of such benefits is greater with respect to one sex than the other.Google Scholar

(f) It shall be an unlawful employment practice for an employee to have a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex, or which differentiates in benefits on the basis of sex.Google Scholar

What the commission intended and what the guidelines say are not necessarily the same. The rule does not use the word “periodic.” See infra at 128-29.Google Scholar

29 The court does not state what the other available options are, nor how they are calculated. 435 U.S. 702, 705 n.3 (1978). The employer contributions under the original plan were 14.84 percent greater for women than for men. For the revised plan, there appears to be no explicit disparity. If the total contributions became smaller while the benefits remained the same, the fund would ultimately become inadequate to meet the retirement commitments unless contributions were excessive before. In fact, the employer contributions were increased to make up for the shortfall. Conversation with James E. Sunderland, Assistant Administrator of the Plan.Google Scholar

30 Note 13 supra. Google Scholar

31 E.g., Henderson v. Oregon, 405 F. Supp. 1271 (D. Or. 1975); EEOC V. Colby College, 439 F. Supp. 631 (Me.), rev'd and remanded, 589 F.2d 1139 (1978); 43 Fed. Reg. 38,029-32, 38,057-58 (1978) (proposed amendments to interpretative bulletins, announced after the Supreme Court opinion in Manhart). The discussion leading to the proposed amendments had been going on for a long time, however. Id., passim; infra at 131.Google Scholar

32 42 U.S.C. § 2000e-2(a)(1) (1976).Google Scholar

33 See Bernstein & Williams, supra note 24, at 1216-17; Patricia M. Lines, Sex-based Fringe Benefits Annuities and Life Insurance, 16 J. Family L. 489, 499-503, 506, passim (1978); Manhart v. City of Los Angeles, Dep't of Water & Power, 553 F.2d 581, 587 (9th Cir. 1976); but see id. at 590 (finding the failure to include age discrimination in the 1964 bill and excepting pension plans in a later age discrimination bill to indicate an intention not to except pension plans from the prohibition of sex discrimination).Google Scholar

34 Bernstein & Williams, supra note 24, at 1216; Comment, 84 Harv. L. Rev. 1109, 1167 (1971); Lines, supra note 33, at 500.Google Scholar

35 See, e.g., the statement by Rep. Emanuel Celler, Chairman of the House Judiciary Committee, as quoted in Bernstein & Williams, supra note 24, at 1217; Simpson, J., in Willingham v. Macon Tele. Publishing Co., 507 F.2d 1084, 1090-91 (5th Cir. 1973):Google Scholar

We find the legislative history inconclusive at best and draw but one conclusion, and that by way of negative inference. Without more extensive consideration, Congress in all probability did not intend for its proscription of sexual discrimination to have significant and sweeping implications. We should not therefore extend the coverage of the Act to situations of questionable application without some stronger Congressional mandate. We perceive the intent of Congress to have been the guarantee of equal job opportunity for males and females. Providing such opportunity is where the emphasis rightly lies.Google Scholar

36 See infra at 123-25 for discussion of the impact of the Bennett amendment.Google Scholar

37 Webster's Third New International Dictionary (1963).Google Scholar

38 Some fringe benefits may be too trivial to be “compensation” within the meaning of the Civil Rights Act.Google Scholar

39 One illustration of the mistaken perspective may suffice:Google Scholar

Perhaps the view that only contributions toward money purchase plans need be examined under Title VII stems from a misguided assumption that there is no difference to the employee between purchase of a pension plan by the employer and direct payment to employees of amounts now paid as contributions so that they might purchase a pension plan on their own. Employees bargain for group pension coverage, however, because it provides greater benefits than those obtainable by using the employer's contribution to purchase pension coverage individually. Thus, employees bargain for group benefits and would not be satisfied with receiving from the employer amounts now paid as contributions.Google Scholar

Since employees are primarily concerned with what benefits they will receive, benefits clearly constitute compensation or terms or conditions of employment subject to the scrutiny of Title vu. If Title VII requires equality in benefits, it requires equality in monthly benefits rather than actuarial equivalence for men and women over their average lifetime.Google Scholar

Bernstein & Williams, supra note 24, at 1211-12. It is an unexplained mystery how Bernstein and Williams managed to jump from an employee interest in the amount and manner of employer contributions and what they will buy to the conclusion that it is the benefits that constitute compensation. But granting them that leap arguendo, it is even more mysterious how they could then jump in the last sentence from a requirement of equality of benefits to one of equality of monthly benefits. It is not self-evident that they are equivalent, nor do Bernstein and Williams explain why they are. Such egregious non sequiturs are almost the norm in discussing this subject. See note 43 infra. Google Scholar

40 Supra at 88.Google Scholar

41 This may sometimes be, instead, the present value of commitments to pay pensions in the future, where the program is unfunded.Google Scholar

42 If the employer promises to pay in the future, to ascertain the value of the promise on a basis that permits comparison, the promise must first be allocated to the specific work for which it is intended to serve as a recompense and then discounted to its present value as of the time the work is performed.Google Scholar

43 Against all reason, some commentators have called periodic pension benefits “wages.” See, e.g., 43 Fed. Reg. 38,031 (1978). Cf. the meanings in Webster's Third New International Dictionary (1963). The Wage and Hour Division argues from the longstanding department position that “[w]ages paid to an employee generally include all payments made to or on behalf of the employee as remuneration for employment,” that benefits are also wages. 43 Fed. Reg. 38,031 (1978). The older department position seems a reasonably clear statement that at least in the funded plan employer contributions to the fund as remuneration for employment-not periodic employee benefits are wages. Both cannot be wages, for that would be double counting. At least as I have interpreted the language of the earlier statement, it is a sensible statement but the argument based on it is a non sequitur.Google Scholar

44 See infra at 100-101.Google Scholar

45 The following simplified explanation ignores the expense element and deals only with the direct cost of providing the benefits.Google Scholar

46 The calculations are only for illustrative purposes. They are borrowed from S. S. Huebner & Kenneth Black, Jr., Life Insurance 263 ff. (9th ed. Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1976). A similar analysis can be found in other standard textbooks on life insurance. See also Dan M. McGill, Fundamentals of Private Pensions 305-400, passim (3d ed. Homewood, Ill.: Richard D. Irwin, Inc., 1975), for an elementary treatment of the complexities of actuarial calculations for pension plans. The conservative 2½ percent interest rate and a dated mortality table are used because the calculations on those bases are readily available. A higher discount rate would in present circumstances be more realistic for calculation of premiums, if not reserves. The differences in the mortality tables would not be great.Google Scholar

47 This percentage figure comes from the opinion of Justice Stevens. Examination of the sample contribution amounts in the Plan document (The Plan, supra note 8, at 25-26) makes it appear that the percentage difference is even larger. If so, it makes the disparity in take-home pay greater, but the disparity in matching employer contributions also is greater. The next sentence is inconsistent with the either/or rule, which has received general acceptance in practice. See infra at 128-29 for further discussion of that point.Google Scholar

48 29 U.S.C. § 206(d) (1976) (proviso). This is on the assumption that employer contributions to fringe benefits are a part of “wages.”Google Scholar

49 See note 11 supra. Google Scholar

50 Prynne, Love-lockes (1628), as quoted in the Oxford English Dictionary.Google Scholar

51 Mark Twain, A Tramp Abroad (1880), as quoted in the Oxford English Dictionary.Google Scholar

52 E.g., in Durant v. City of Beverly Hills, 102 P.2d 759, 762 (Cal. 1st Dist. Ct. App. 1940), a rate case, the court said: “Discrimination to be objectionable must draw an unfair line or strike an unfair balance between those in like circumstances having equal rights and privileges.” Tampa Elec. Co. v. Cooper, 14 So. 2d 388, 389 (Fla. 1943), another rate case, made clear that while the common law rule was “that utility rates must be reasonable and nondiscriminatory,”“every difference in rate does not constitute a discrimination in law.” Choctaw, O. & G. Ry. Co. v. State, 73 Ark. 373, 84 S.W. 502 (1904), considered actionable discrimination to involve an “undue preference-some undue, unjust, or unreasonable discrimination.” McLeod v. Santa Fe Trail Transp. Co., 168 S.W.2d 413 (Ark. 1943), holds a distinction in motor fuel tax between one kind of vehicle and another not to be discriminatory. Caskey Baking Co. v. Virginia, 313 U.S. 117, 121 (1941) (business license tax not violative of equal protection clause), said: “Classification is not discrimination. It is enough that those in the same class are treated with equality.” U.S. v. Illinois Cent. R.R., 263 U.S. 515, 521 (1923), agreed in construing the Act to Regulate Commerce: “But mere discrimination does not render a rate illegal under § 3. Only such rates as involve unjust discrimination are obnoxious to that section.” Both holdings distinguish neutral from invidious discrimination. And Board of Supervisors v. Allman, 215 Va. 434, 211 S.E.2d 48, 55 (1975), held a zoning decision “inconsistent and discriminatory,” saying that a “discriminatory action is an arbitrary and a capricious action, and bears no reasonable or substantial relation to the public health, safety, morals or general welfare.” Very helpful language is found in United States v. Wells-Fargo Express Co., 161 F. 606, 610 (N.D. Ill. 1908), which dealt with the question whether omission of the qualifier “unjust” before “discrimination,” in amending the Elkins Act, changed the meaning:Google Scholar

It is contended by the government that this omission discloses the intention on the part of Congress “to require common carriers in interstate commerce to publish and file schedules of rates, to adhere absolutely to such rates, and to grant no preferences or discriminations unless expressly authorized by the statute.” It may be doubted whether Congress intended by this language to broaden the prohibitions of the act in that respect. It is difficult to conceive of the terms “discrimination,”“prejudice,” or “disadvantage” as not associated with what is unjust, unreasonable, and undue. It is true the adjectives are dwelt upon in the former decisions of the court with considerable emphasis. It hardly seems, however, as though their absence would have modified the opinion rendered in these cases.Google Scholar

In Johnson v. Railway Express Agency, Inc., 421 U.S. 454, passim (1975), Justice Blackmun spoke of “invidious discrimination in employment.” The qualifying adjective is often omitted and “discrimination in employment on the basis of race” or similar expressions are used. But the adjective “invidious” is attached with enough frequency to make it constantly clear that it is the sole subject for discussion.Google Scholar

See also Hardin v. Vestal, 162 S.W.2d 923, 925 (Ark. 1942) (gross receipts tax valid under Fourteenth Amendment); Williams v. City of Bowling Green, 254 Ky. 11, 70 S.W.2d 967 (1934) (license tax valid under Fourteenth Amendment); Tax Comm'rs v. Jackson, 283 U.S. 527, 537 (Indiana license tax valid under Fourteenth Amendment); Feist v. Young, 46 F. Supp. 622 (E. D. Wis. 1942); Francis v. Fitzpatrick, 129 Conn. 619, 30 A.2d 552 (1943); In re Public Utils. Comm'r, 268 P.2d 605 (Or. 1954); and State v. Arkansas La. Gas Co., 227 La. 179, 78 So. 2d 825 (1955). Bolling v. Sharpe, 347 U.S. 497 (1954), makes “unreasonable discrimination” a denial of due process. Frontiero v. Richardson, 411 U.S. 677, 688 (1972) (quoting Reed v. Reed, 404 U.S. 71, 77 (1971)), makes the kind of sex discrimination forbidden by the equal protection clause “dissimilar treatment for men and women who are … similarly situated.”Google Scholar

53 Laws of N.Y. 1911, ch. 460, adding § 141 to the act on insurance corporations. The added section says in the third paragraph: “No [person] shall fix or make a schedule of rates or charge a rate which discriminates unfairly between risks within this state of essentially the same hazard belonging to classes having substantially the same fire class record, and which are similarly situated and protected against fire” (emphasis added). This is a far more sophisticated usage of discrimination than that of the Court in Manhart. Laws of Kans. 1909, ch. 152, § 7, is to the same effect but uses the term “unjust discrimination,” which undoubtedly has an identical meaning. These statutes are not directly applicable to life insurance or annuities. They do reflect, however, the accepted view of what is legitimate in setting rates in all lines of insurance. More recently, state statutes have been widely enacted that are expressly applicable to life insurance and annuities. E.g., N.Y. Ins. Law § 209(1) (McKinney Supp. 1978-79) provides: “No life insurance company … shall make or permit any unfair discrimination between individuals of the same class and of equal expectation of life, in the … rates charged by it for policies of life insurance or annuity contracts.” The National Association of Insurance Commissioners (NAtc) Model Unfair Trade Practices Act § 7(a) forbids “[m]aking or permitting any unfair discrimination between individuals of the same class and equal expectation of life in the rates charged for any contract of life insurance or of life annuity.” 1972 NAIC Proceedings I:495.Google Scholar

54 Whether my analysis of the meaning of “discrimination” in this section is correct, the bill introduced January 15, 1979, by Rep. Dingell, would settle the matter definitively and make sex-based actuarial tables unlawful (H.R. Rep. No. 100, 96th Congress, 1st Sess.). Such clear action by Congress would leave nothing to be decided by the Court but a possible constitutional issue: whether such a rule is, inter alia, an unconstitutional denial of equal protection to men in annuities and women in life insurance. Sweeping changes such as the Dingell bill would compel are likely to produce utter chaos in the insurance and annuity business. At a minimum, any such enactment requires careful consideration both of ultimate consequences and of transitional problems. See infra at 132-36.Google Scholar

55 Supra at 101-2.Google Scholar

56 This simplistic statement should not be taken to preclude the use of the most modern and sophisticated statistical techniques to develop the results from the data.Google Scholar

57 These problems were treated exhaustively for an analogous situation in a book written for the national Automobile Insurance and Compensation Study by Spencer Kimball & Herbert Denenberg, Mass Marketing of Property and Liability Insurance (Washington, D.C.: Department of Transportation, 1970). There are situations even in individual insurance where savings in information cost may justify internal subsidies, e.g., small life insurance policies may be issued without medical examinations; residential property may be insured without inspection. In these cases, the better risks subsidize the poorer but may still be better off because of reduced information cost. Abstract inequities result, but perhaps with benefit to even the better risks. This is not a world in which information is costless; if it were, we could demand precise calculations of the probabilities and therefore of premium rates. Even then, we should be far from the sometimes-feared situation where all persons must pay for their own losses. That degree of foreknowledge is impossible whatever the investment in information gathering, for many losses are truly adventitious and many that are not are still unpredictable with any human knowledge.Google Scholar

58 People do change their habits in these important respects. The [HEW] Secretary's Foreword to the 1979 Surgeon General's Report says (at 3) that “more than 30 million Americans are ex-smokers.” The full report was not available to me in time for use in this article. In order to use smoking and drinking reliably as factors in mortality tables, it would be necessary to follow the life history of each annuitant and estimate the quantity of tobacco and alcohol used at different times throughout life, with adjustments in the contributions and/or the benefits to reflect such changes. The Introduction and Summary of the Surgeon General's Report says (at 1-11 to 1-12): “Former cigarette smokers experience declining overall mortality ratios as the years of discontinuance increase. After 15 years of cessation, mortality ratios for former cigarette smokers are similar to those who never smoked.” Notwithstanding such difficulties, some companies are experimenting with these classifications. See note 96 infra. A large part of the male-female difference in life expectancy in 1962 appears to have been accounted for by differences in smoking habits. No other cause, except the genetic difference, appears from the 1962 study to have contributed nearly so much. Retherford, supra note 9, at 76, 104. A large part of the increase in the male-female differential that has occurred in this century has apparently resulted from increased cigarette smoking among men. Id. The whole matter is very complex. Clearly, differential changes in smoking patterns as between the sexes would change the relative mortality rates of the sexes, but it would not eliminate the difference. Justice Stevens's reading of Retherford was too superficial. If smoking could practicably be built into the mortality tables used for annuities, it is not women but smoking men who would gain at the expense of nonsmoking men. Smoking women would also gain but at the expense of nonsmoking women, not of men. The new Surgeon General's report, when available for careful study, will undoubtedly throw some additional light on this difficult matter.Google Scholar

59 What to do with transsexuals is a sticky wicket; that may well be left to the Supreme Court for one of its more venturesome days after it has correctly solved the basic problem.Google Scholar

60 Henry Moir el al., Sources and Characteristics of the Principal Mortality Tables 4-6 (New York: Actuarial Society of America, 1919).Google Scholar

61 Spencer L. Kimball, Insurance and Public Policy 112, 156-61 (Madison: University of Wisconsin Press, 1960).Google Scholar

62 They were compelled by statute through what was appropriately called the “Force Bill.”Id. at 112, 159-60.Google Scholar

63 Moir, supra note 60, at 12 ff.Google Scholar

64 Harold R. Greenlee, Jr., & Alfonso D. Keh, The 1971 Group Annuity Mortality Table, 23 Transactions of the Society of Actuaries, Part 1, 569, 601 (1971). “[A] uniform male age setback of 6 years for females seems appropriate. Some companies might prefer to use several age set-backs, depending on attained age. If the 1971 GAM [Group Annuity Mortality] is adopted as an acceptable valuation standard, companies should be allowed reasonable flexibility in this respect.”Id. at 602. In the discussion that followed the above paper, some questions were raised about the setback: “While the paper is quite cogent in suggesting a six-year age setback from the male table for female retired lives, it says nothing about female deferred annuities. If we wish to use the male table … for female deferred annuities, it is probable that a seven- or eight-year age setback of the male table would be appropriate.”Id. at 611. This suggests that the treatment of females may sometimes be more favorable than the data justify. As one of the commentators pointed out, however (id. at 615), the data come almost exclusively from insured pension plans, while uninsured pension plans make up the overwhelming majority of the amounts in the funds ($96 billion of $135 billion at the time of the above discussion, id. at 616), so that a broader study using uninsured private pension fund data would also be useful.Google Scholar

65 Ray M. Peterson, Group Annuity Mortality, 4 Transactions of the Society of Actuaries 246, 283 (1952).Google Scholar

66 A trilogy of technical papers reflects the principal line of development of the tables used. They are Wilmer A. Jenkins & Edward A. Lew, A New Mortality Basis for Annuities, I Transactions of the Society of Actuaries 369 (1949); Peterson, supra note 65; Greenlee & Keh, supra note 64.Google Scholar

67 429 U.S. 125 (1976). See also Rosen v. Public Serv. Elec. & Gas Co., 477 F.2d 90 (3d Cir. 1973), which says: “We hold, therefore, that $ 703(a)(1) of the Act prohibits discrimination with respect to retirement benefits on the basis of sex.” But some judges have done better. In Baker v. California Land Title Co., 349 F. Supp. 235, 238 (C. D. Cal. 1972), a hair-length case under the sex provision of Title VII, Judge Curtis rightly said: “‘Discrimination’ is a term well understood in the law. It is in general a failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored.” He found sex to be an appropriate distinction for purposes of employment rules about hair length. In the court of appeals, the court said: “The need which prompted this legislation was one to permit each individual to become employed and to continue in employment according to his or her job capabilities.” 507 F.2d 895, 896 (9th Cir. 1974). Dodge v. Giant Food, Inc., 488 F.2d 1333, 1335, 1336 (D.C. Cir. 1973), said: “We conclude that Giant's hair-length regulations do not discriminate or classify within the meaning of the statute,” though “the regulations embody a distinction among employees based upon their sex.” And, further, “Title vii serves the important goal of eliminating arbitrary sex discrimination in employment, and our decision in no way denigrates this laudable goal.”Google Scholar

68 429 U.S. 125, 160 n.1 (1976).Google Scholar

69 FTC V. Morton Salt Co., 334 U.S. 37, 44-45 (1948).Google Scholar

70 Id. at 40 n.1. Quite naturally, nothing invidious had to be demonstrated.Google Scholar

71 NLRB V. Great Dane Trailers, 388 U.S. 26, 32-35 (1967).Google Scholar

72 29 U.S.C. § 158(a)(3) (1976).Google Scholar

73 See note 12 supra. Google Scholar

74 See note 28 supra. Google Scholar

75 435 U.S. 702, 709 (1978): “But a statute that was designed to make race irrelevant in the employment market … could not reasonably be construed to permit a take-home-pay differential based on a racial classification.” See also the curiously overconfident assertions in Lines, supra note 33, at 522-23.Google Scholar

76 Many regulators would prohibit such narrow policies on other grounds. That does not weaken the case for illustrative purposes.Google Scholar

77 The phenomenon of “passing” from the “black” into the “white” population is well known in American history; only its dimensions are uncertain.Google Scholar

78 American Council of Life Insurance, Life Insurance Fact Book 1977, at 91.Google Scholar

79 Id. at 92. The columns in the following table have been rearranged from the original to make the comparisons more vivid.Google Scholar

LIFE EXPECTANCY AT VARIOUS AGES Google Scholar

80 Even the data on race provided in this section must be suspect because of the impossibility of accurate classification of the races.Google Scholar

81 Francis P. King, Men, Women, and Life Annuities 4 (paper obtainable from TIAA) (n.d.); Retherford, supra note 9, at 5 passim; Sigma (North American Reinsurance Corporation), May 1978. Women would be likely to have poorer mortality experience during childbearing ages in any cultural setting in which death rates in childbirth were high, for example. Despite that, better female mortality experience is an almost universal phenomenon.Google Scholar

82 The difficulties in dealing with race in another context are adumbrated by Powell, J., in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). He also says (at 303): “More importantly, the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share. In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis.” The analogy between race and sex is not dispositive of the issue in this article; the two classifications differ in too many important respects.Google Scholar

83 29 U.S.C. § 206 (1976).Google Scholar

84 Bernstein & Williams, supra note 24, at 1222. If the focus is on monthly needs, it is not clear why the authors think short-lived women have “especially” suffered harm. If any have suffered more than others, it is those exposed to equal monthly harm for the longer times the exact opposite of what the authors say. See also Comment, The Supreme Court, 1977 Term, 92 Harv. L. Rev. 1, 305 (1978); Martin, supra note 2, at 210. In a “society willing to commit itself wholly to egalitarian ends,” advocated by Note, Sex Discrimination and Sex-based Mortality Tables, 53 B.U.L. Rev. 624, 655 (1973), such redistribution of income and assets might be acceptable if based on demonstrated need. But it violates the equal-pay-for-equal-work theme, which those authors, too, heartily applaud. Id. at 636, 643-44. See especially id. at 646-47 (objecting to a need-oriented defense of employer).Google Scholar

85 Bernstein & Williams, supra note 24, at 1213-14.Google Scholar

86 The theoretical goal of Marxism is distribution according to need. True “communism” is said to be synonomous with such a principle: “only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!” Karl Marx, Critique of the Gotha Programme, in Karl Marx & Frederick Engels, Selected Works 325 (New York: International Publishers, 1968).Google Scholar

87 435 U.S. 702, 709 (1978).Google Scholar

88 Id. at 716.Google Scholar

89 Giving options as to the distribution of equal total compensation between take-home pay and retirement benefits, so far as tax law permits, would be advantageous to all. It is possible for certain tax-exempt organizations to do this, within some limits, by using tax-sheltered annuities, without losing the tax benefits attached to pension plans.Google Scholar

90 Supra at 102-3.Google Scholar

91 Bernstein & Williams, supra note 21, at 1208, passim. Google Scholar

92 See supra at 100-102.Google Scholar

93 Such facts as the condition of individuals' cardiovascular systems may be more significant, but to deal with them in this context would be too costly and probably would be quite unmanageable.Google Scholar

94 435 U.S. 702, 727-28 (1978) (Burger, C.J., dissenting).Google Scholar

95 435 U.S. 702, 709-10 (1978).Google Scholar

96 See notes 9 and 58 supra and associated texts. Failure to discriminate men smokers from men nonsmokers is a serious even if perhaps inevitable deficiency; that failure discriminates against nonsmokers in life insurance and against smokers in annuities. Id. But unfair discrimination between smokers and nonsmokers of the same sex is not a violation of the Civil Rights Act. Yet, if it were practicable to make the distinction, it would be unfair discrimination under the insurance laws, and insurance commissioners should then compel insurance companies to take account of smoking. But to do so would surely cost much more than it is worth. On the other hand, it is interesting that the free market produces from time to time efforts to take advantage of such differences as that between smokers and nonsmokers. The December 1978 issue of Best's Review Life/Health Insurance Edition contained a full-page advertisement by the Manhattan Life Insurance Company inside the front cover offering better rates in life insurance to nonsmokers. For annuities the rate advantage would have to go to smokers.Google Scholar

97 See note 58 supra. In annuities, it is the smokers who would get the advantage from the more refined mortality tables, perhaps encouraging smoking by increasing periodic income during retirement for smokers!Google Scholar

98 “Since the 1840s, superior female longevity has been almost universal in the West, the one clear exception being Ireland, where higher male longevity over an appreciable range of ages was encountered during the 1920s. Since 1930, no Western life table on record shows a higher male life expectancy at any age to 70, and the available data for non-Western Europe suggest that consistently greater female longevity has also obtained for this region since the same date.” Retherford, supra note 9, at 10.Google Scholar

99 One such chart, based on the 1971 OMA table (male) set back five years for females, is found in Martin, supra note 84, at 208. The setback for females is one way of dealing with greater female longevity in setting rates. Supra at 109. There is no universal agreement among actuaries on the proper amount by which to set back the female ages, but the general description here would be equally applicable to any amount. See note 64 supra for the suggestion that five years may not be enough. The chart in the text is based on numbers that are conveniently available from the 1971 Individual Annuity Mortality Table showing men and women retiring at 65. These tables are separately constructed for men and women.Google Scholar

100 In an analysis for Committee W of the American Association of University Professors, Barbara Bergman found an overlap of 84 percent. King, supra note 81, at 3 (paper obtainable from TIAA) (n.d.). King is a research officer at TIAA. An abridged version appeared in the Jan.-Feb. 1976 issue of the Journal of the College and University Personnel Association. Google Scholar

101 A good nontechnical treatment of the matter is found in the short article by King, supra note 81.Google Scholar

102 Thus, assuming an interest rate of 5 percent and ignoring overhead expenses, an accumulation of $100,000 at retirement would be paid out at the rate of $51,219.54 per year to a person who is to live only 2 years and at the rate of $6,195.38 per year to a person who is to live 30 years.Google Scholar

103 435 U.S. 702, 708 (1978).Google Scholar

104 The use of discrimination between in the Equal Pay Act is not inconsistent with the thesis of this article that only invidious discrimination, discrimination against, is forbidden. See supra at 113.Google Scholar

105 As quoted in 435 U.S. 702, 711-12, nn.22 & 23.Google Scholar

106 Griggs v. Duke Power Co., 401 U.S. 424 (1971).Google Scholar

107 See, e.g., New York Insurance Department, Disability Income Insurance Cost Differentials Between Men and Women (1976).Google Scholar

108 Judge Solomon also rejected the Bennett amendment argument in Henderson v. Oregon, 405 F. Supp. 1271, 1276 (D. Or. 1975), relying on the opinion in Manhart in the district court, 387 F. Supp. 980, 984 (C. D. Cal. 1975). He was not subjected to the “tautology test,” however, because that first appeared in Manhart in the court of appeals. See also EEOC V. Colby College, 439 F. Supp. 631 (Me.), rev'd and remanded, 589 F.2d 1139, 1144 (1st Cir. 1978).Google Scholar

109 435 U.S. 702, 717-18 (1978).Google Scholar

110 William Van Alstyne, Equality for Individuals or Equality for Groups: Implications of the Supreme Court Decision in the Manhart Case, A.A.U.P. Bull., Sept. 1978, at 150, 154.Google Scholar

111 435 U.S. 702, 718 n.33 (1978).Google Scholar

112 EEOC V. Colby College, 439 F. Supp. 631 (Me.), rev'd and remanded, 589 F.2d 1139, 1141, 1144 (1st Cir. 1978).Google Scholar

113 I am not suggesting that there are no markets still more open than the one involving purchase of individual annuities through a single mass-marketed arrangement the TIAA scheme. For example, the employer could make the contributions to any insurer chosen by the employee. But that arrangement is certain to involve, in most instances, substantially more administrative and marketing costs. Among other costs, insurance company representatives do have to be compensated or they will not provide service for the annuitants.Google Scholar

114 29 C.F.R. § 800.116(d) (1976).Google Scholar

115 29 C.F.R. § 1604.7(a), (b), (c) (1965).Google Scholar

116 435 U.S. 702, 717-18 (1978).Google Scholar

117 For a clear statement by the Department of Labor of the fundamental illogic of the either/or rule, see infra at 131.Google Scholar

118 The parable of the laborers in the vineyard, in which those hired “at the eleventh hour” received the same pay from a generous employer as those hired in the morning, might justify for some a voluntary recognition of need but not a governmentally mandated one. See Matt. 20:1-16.Google Scholar

119 C.F.R. § 1604.9(f) (1976). The rule does not say“periodic,” but it seems clear that the rulemakers intended that meaning. See note 28 supra. Google Scholar

120 435 U.S. 702, 717 (1978).Google Scholar

121 General Elec. Co. v. Gilbert, 429 U.S. 125, 142 (1976). Brennan, J., in dissent disagreed vigorously with this argument: “It is bitter irony that the care that preceded promulgation of the 1972 guideline is today condemned by the Court as tardy indecisiveness … . For me, the 1972 guideline … merits our ‘great deference.’Id. at 157. In Albemarle Paper Co. v. Moody, 422 U.S. 405, 431-36 (1975), the Court gave “great deference” to the EEOC guidelines. It should be noted, however, that the guidelines there in question had not been reversed. Moreover, Justice Blackmun, specially concurring (at 447), and Chief Justice Burger, dissenting (at 449), disagreed with the Court on the deference to be given to the agency. This represents a retreat for both Blackmun, J., and Burger, C.J., from the view espoused in Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971). Espinoza v. Farah Mfg. Co., 414 U.S. 86, 94 (1973), stated that the “deference must have limits,” the limit involved there being indications from the statute that the guideline was wrong. A fortiori in Manhart, where the guideline also represents a reversal of position. See also United Housing Foundation, Inc., v. Forman, 421 U.S. 837, 858 n.25 (1975). The Court's view of inconsistent administrative interpretations is not new. See Morton v. Ruiz, 415 U.S. 199, 237 (1974), where Blackmun, J., spoke for a unanimous court: “We have recognized previously that the weight of an administrative interpretation will depend, among other things, upon ‘its consistency with earlier and later pronouncements’ of an agency. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). See generally 1 K. Davis, Administrative Law Treatise §§ 5.03-5.06 (1958 ed. and Supp. 1970).”Google Scholar

122 429 U.S. 125, 143 (1976).Google Scholar

123 Supra at 92.Google Scholar

124 43 Fed. Reg. 38,031 (1978).Google Scholar

125 43 Fed. Reg. 38,030, col. 2 (1978).Google Scholar

126 However these agencies may have arrived at their new positions whether by following hidden agendas, by resolving internal power struggles, or merely by sloppy reading of Manhart they have expressed the intention to abandon the well-established either/or rule for an equal periodic benefits rule. Allegedly, the Wage and Hour Division is doing so on the basis of the “helpful guidance” of the Court in Manhart and its own analysis, 43 Fed. Reg. 38,030, col. 2 (1978). The Court provided no such helpful guidance; such guidance as the Court has given in Gilbert and in Manhart goes the other way. The analysis provided by the Wage and Hour Division is totally unpersuasive; it even appears disingenuous. There is no reason to change the either/or rule, unless it be in the opposite direction, to require equal contributions.Google Scholar

127 Chronicle of Higher Education, Mar. 5, 1979, at 1.Google Scholar

128 The question may legitimately be asked whether the demand for equal periodic benefits is always a principled demand or is sometimes only rhetoric in the service of a pure political power play to “get” as much as possible. The test logically comes when the “burden” is reversed. An interesting sequence of notes appears in WEAL (Women's Equity Action League), Wash. Rep., Aug. 1978, at 3-4. The first reports the Manhart case under the title “Sex Discrimination Ended in Employees' Pension Premiums.” The next note is entitled “Women's Insurance Co-op Studied.” It concerns a feasibility study for a way to “save women hundreds of dollars in premium costs” in automobile insurance in states where legislatures are considering allowing (more correctly requiring) insurers to “pool all young drivers into a single risk class,” in which case “women's rates would go up,” i.e., would be the same as men's rates. That change, if it occurs, will have been produced by the same arguments that produced the EEOC guidelines. See, e.g., Massachusetts Division of Insurance, Automobile Insurance Risk Classification: Equity and Accuracy (1978). What is sauce for the gander seems not always to be edible by the goose. There is, of course, a simpler and perhaps more charitable explanation: a simple lack of understanding.Google Scholar

129 See note 11 supra. Google Scholar

130 Comments of TIAA, supra note 26, at 34.Google Scholar

131 The Internal Revenue Service has declined to use unisex tables. It uses sex-differentiated actuarial tables to compute the expected return in calculating gross income taxation of annuities, endowments, or life insurance contracts. I.R.C. § 72(c)(3)(A); 26 C.F.R. § 1.72-9 (1978). It also uses sex-differentiated actuarial tables to compute the value of life interests and remainders for both estate and gift tax purposes. See I.R.C. § 2031, 26 C.F.R. § 20.2031-10 (1978). The Pension Benefit Guaranty Corporation is charged by Congress with the duty of establishing premiums for the guaranty funds. 29 U.S.C. § 1306 (1976). The premium rates are to be “based … on the risk insured in each category.” The corporation has valued the plan benefits under ERISA, using sex-differentiated mortality tables. 29 C.F.R. § 2610 (1978).Google Scholar

132 The Manhart opinion seems to have contemplated and approved this practice on a voluntary basis. 435 U.S. 702, 718 (1978).Google Scholar

133 Note 35 supra. In addition to making the point in their earlier article (supra note 24), Merton C. Bernstein and Lois G. Williams reemphasized it in Sex Discrimination in Pensions: Manhart's Holding v. Manhart's Dictum, 78 Colum. L. Rev. 1241, 1244 (1978). This article is a brief updating of the earlier article in light of the Manhart case. Apart from specific interpretatons of the language in Manhart, it adds almost nothing to their earlier comprehensive treatment of the subject, with which I have frequently disagreed in these pages.Google Scholar

134 “Nevertheless, the problem of larger pension costs for women under defined benefit plans remains, which naturally provides a disincentive for hiring women.” Bernstein & Williams, supra note 24, at 1203. “This disincentive [unequal employer contributions] to hire women should be eliminated, for it would be difficult to fully police the resulting employment discrimination.”Id. at 1212. Bernstein and Williams would eliminate it not by reducing benefits for women to what equal contributions will buy but by shifting the extra burden to the male employees, hiding that burden behind the one-way mirror of a unisex table.Google Scholar

135 See, e.g., Note, Sex Discrimination in Employee Fringe Benefits, 17 Wm. & Mary L. Rev. 109, 133 (1975). It may be wrong to call the authors of this note “advocates” of unisex. At least the note is more temperate and measured than most of the writing on this subject, both by students and by more experienced scholars. Its principal message is that there are vast uncertainties in the area that need to be clarified to protect those who must rely on the law in making fringe benefit decisions.Google Scholar

136 Kimball, supra note 61, at 77, passim; Allen L. Mayerson, Ensuring the Solvency of Property and Liability Insurance Companies, in Spencer L. Kimball & Herbert S. Denenberg, eds., Insurance, Government, and Social Policy 151 (Homewood, Ill.: Richard D. Irwin, Inc., 1969).Google Scholar

137 Large numbers of independently operated insurance companies inhabit the insurance market. Unfair discrimination by most insurers against any sufficiently large class of policyholders represents an opening in the market for competitors. The December 1978 issue of Best's Review Life/Health Insurance Edition contained a full-page advertisement (at 61) in which the INA Life Insurance Company sought to exploit what it perceived to be such an opening. It featured setbacks in life insurance for females (up to five years for women in their 40s) larger than those customary in the business (no more than three years). For the use of setbacks, see text at 109 supra. The INA move is in the opposite direction from that suggested by the Department of Labor. See supra at 131. It gives more complete recognition to the greater longevity of women and in life insurance gives them a substantial advantage. The lead for the ad is: “An idea whose time has finally come female rates that truly reflect female mortality.” This is the free market response an appropriate one to greater longevity for nonsmokers and for females. It is the self-activated mechanism for correcting perceived unfair discrimination. See also note 96 supra for another illustration of a free market response to perceived cost differences.Google Scholar

138 Supra at note 26.Google Scholar

139 EEOC v. Colby College, 439 F. Supp. 631 (Me.), rev'd and remanded, 589 F.2d 1139, 1143-44 (1st Cir. 1978):Google Scholar