No. 85-494
Argued: October 8, 1986Decided: January 13, 1987
Held:
The judgment is affirmed.
758 F.2d 390, affirmed.
- JUSTICE MARSHALL delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, concluding that 12945(b)(2) is not pre-empted by Title VII, as amended by the PDA, because it is not inconsistent with the purposes of Title VII nor does it require the doing of an act that is unlawful under Title VII. Pp. 284-292.
-
- (a) Title VII’s purpose is “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees.” Griggs v. Duke Power Co., 401 U.S. 424, 429 -430. Rather than limiting Title VII principles and objectives, the PDA extends them to cover pregnancy. Section 12945(b)(2) also promotes equal employment opportunity. By requiring employers to reinstate women after a reasonable
- pregnancy disability leave, it ensures that they will not lose their jobs on account of pregnancy. Pp. 284-290.
- (b) Section 12945(b)(2) does not prevent employers from complying with both the federal law (as construed by petitioners to reject California’s “special treatment” approach to pregnancy discrimination and to forbid an employer to treat pregnant employees any differently than other disabled employees) and the state law. This is not a case where compliance with both the federal and state laws is a physical impossibility. Section 12945(b)(2) does not compel employers to treat pregnant employees better than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Pp. 290-292.
- JUSTICE MARSHALL, joined by JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE O’CONNOR, concluded in Part III-A that both 708 and 1104 of the Civil Rights Act of 1964 severely limit Title VII’s pre-emptive effect by leaving state fair employment laws where they were before Title VII was enacted. Pp. 280-284.
- JUSTICE STEVENS concluded that, for purposes of holding that 12945 (b)(2) is not pre-empted by Title VII, it is not necessary to reach the question whether 1104 applies to Title VII or whether 708 is the only provision governing Title VII’s pre-emptive scope. Pp. 292-293, n. 1.
- JUSTICE SCALIA concluded that the only provision whose effect on pre-emption need be considered is 708 of Title VII, which prohibits pre-emption unless a state law requires or permits the doing of an act outlawed by the PDA. Because 12945(b)(2) does not require or permit the doing of an act outlawed under any interpretation of the PDA, it is not pre-empted. Accordingly it is unnecessary to decide how the PDA should be interpreted. Pp. 295-296.
MARSHALL, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, III-C, and IV, in which BRENNAN, BLACKMUN, STEVENS, and O’CONNOR, JJ., joined, and an opinion with respect to Part III-A, in which BRENNAN, BLACKMUN, and O’CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 292. SCALIA, J., filed an opinion concurring in the judgment, post, p. 295. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C. J., and POWELL, J., joined, post, p. 297.
Theodore B. Olson argued the cause for petitioners. With him on the briefs were Willard Z. Carr, Jr., Pamela L. Hemminger, Paul Blankenstein, and Jan E. Eakins. [479 U.S. 272, 274]
Marian M. Johnston, Deputy Attorney General of California, argued the cause for respondents. With her on the brief were John K. Van de Kamp, Attorney General, Andrea Sheridan Ordin, Chief Assistant Attorney General, and M. Anne Jennings and Beverly Tucker, Deputy Attorneys General. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Geller, Deputy Assistant Attorney General Carvin, Richard J. Lazarus, Brian K. Landsberg, David K. Flynn, and Mary E. Mann; and for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, and Lorence L. Kessler. Briefs of amici curiae urging affirmance were filed for the State of Connecticut et al. by Joseph I. Lieberman, Attorney General of Connecticut, Clarine Nardi Riddle, Deputy Attorney General, Brian J. Comerford, Assistant Attorney General, Philip A. Murphy, Jr., Corinne K. A. Watanabe, Attorney General of Hawaii, Michael Greely, Attorney General of Montana, and Kenneth O. Eikenberry, Attorney General of Washington; for the American Federation of Labor and Congress of Industrial Organizations by Laurence Gold and Marsha S. Berzon; for California Women Lawyers et al. by Cheryl Houser, Janet M. Koehn, and Lorraine L. Loder; for Equal Rights Advocates et al. by Judith E. Kurtz, Nancy L. Davis, and Herma Hill Kay; for Human Rights Advocates et al. by Richard F. Ziegler and Andrew Weissmann; for the National Conference of State Legislatures et al. by Benna Ruth Solomon, Todd D. Peterson, and Barbara E. Etkind; and for Lillian Garland by Joan M. Graff, Robert Barnes, and Patricia Shiu. Briefs of amici curiae were filed for the American Civil Liberties Union et al. by Joan E. Bertin, Isabelle Katz Pinzler, George Kannar, and Charles S. Sims; for the Chamber of Commerce of the United States by Robin S. Conrad; for the Coalition for Reproductive Equality in the Workplace et al. by Christine Anne Littleton and Judith Resnik; and for the National Organization for Women et al. by Susan Deller Ross, Sarah E. Burns, and Wendy Webster Williams.
JUSTICE MARSHALL delivered the opinion of the Court.
The question presented is whether Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, pre-empts a state statute that requires [479 U.S. 272, 275] employers to provide leave and reinstatement to employees disabled by pregnancy.
I
California’s Fair Employment and Housing Act (FEHA), Cal. Gov’t Code Ann. 12900 et seq. (West 1980 and Supp. 1986), is a comprehensive statute that prohibits discrimination in employment and housing. In September 1978, California amended the FEHA to proscribe certain forms of employment discrimination on the basis of pregnancy. See Cal. Labor Code Ann. 1420.35, 1978 Cal. Stats., ch. 1321, 1, pp. 4320-4322 (West Supp. 1979), now codified at Cal. Gov’t Code Ann. 12945(b)(2) (West 1980). 1 Subdivision (b)(2) – the provision at issue here – is the only portion of the statute that applies to employers subject to Title VII. See [479 U.S. 272, 276] 12945(e). 2 It requires these employers to provide female employees an unpaid pregnancy disability leave of up to four months. Respondent Fair Employment and Housing Commission, the state agency authorized to interpret the FEHA, 3 has construed 12945(b)(2) to require California employers to reinstate an employee returning from such pregnancy leave to the job she previously held, unless it is no longer available due to business necessity. In the latter case, the employer must make a reasonable, good-faith effort to place the employee in a substantially similar job. 4 The statute does not compel employers to provide paid leave to pregnant employees. Accordingly, the only benefit pregnant workers actually derive from 12945(b)(2) is a qualified right to reinstatement.
Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., also prohibits various forms of employment [479 U.S. 272, 277] discrimination, including discrimination on the basis of sex. However, in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), this Court ruled that discrimination on the basis of pregnancy was not sex discrimination under Title VII. 5 In response to the Gilbert decision, Congress passed the Pregnancy Discrimination Act of 1978 (PDA), 42 U.S.C. 2000e(k). The PDA specifies that sex discrimination includes discrimination on the basis of pregnancy. 6 [479 U.S. 272, 278]
II
Petitioner California Federal Savings & Loan Association (Cal Fed) is a federally chartered savings and loan association based in Los Angeles; it is an employer covered by both Title VII and 12945(b)(2). Cal Fed has a facially neutral leave policy that permits employees who have completed three months of service to take unpaid leaves of absence for a variety of reasons, including disability and pregnancy. Although it is Cal Fed’s policy to try to provide an employee taking unpaid leave with a similar position upon returning, Cal Fed expressly reserves the right to terminate an employee who has taken a leave of absence if a similar position is not available.
Lillian Garland was employed by Cal Fed as a receptionist for several years. In January 1982, she took a pregnancy disability leave. When she was able to return to work in April of that year, Garland notified Cal Fed, but was informed that her job had been filled and that there were no receptionist or similar positions available. Garland filed a complaint with respondent Department of Fair Employment and Housing, which issued an administrative accusation against Cal Fed on her behalf. 7 Respondent charged Cal Fed with violating 12945(b)(2) of the FEHA. Prior to the scheduled hearing before respondent Fair Employment and Housing Commission, Cal Fed, joined by petitioners Merchants and Manufacturers Association and the California Chamber of Commerce, 8 brought this action in the United States District Court for the Central District of California. [479 U.S. 272, 279] They sought a declaration that 12945(b)(2) is inconsistent with and pre-empted by Title VII and an injunction against enforcement of the section. 9 The District Court granted petitioners’ motion for summary judgment. 33 EPD § 34,227, p. 32781, 34 FEP Cases 562 (1984). Citing Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), 10 the court stated that “California employers who comply with state law are subject to reverse discrimination suits under Title VII brought by temporarily disabled males who do not receive the same treatment as female employees disabled by pregnancy . . . .” 34 FEP Cases, at 568. On this basis, the District Court held that “California state law and the policies of interpretation and enforcement . . . which require preferential treatment of female employees disabled by pregnancy, childbirth, or related medical conditions are pre-empted by Title VII and are null, void, invalid and inoperative under the Supremacy Clause of the United States Constitution.” Ibid. 11 [479 U.S. 272, 280]
The United States Court of Appeals for the Ninth Circuit reversed. 758 F.2d 390 (1985). It held that “the district court’s conclusion that section 12945(b)(2) discriminates against men on the basis of pregnancy defies common sense, misinterprets case law, and flouts Title VII and the PDA.” Id., at 393 (footnote omitted). Based on its own reading of Newport News, the Court of Appeals found that the PDA does not “demand that state law be blind to pregnancy’s existence.” 758 F.2d, at 395. The court held that in enacting the PDA Congress intended “to construct a floor beneath which pregnancy disability benefits may not drop – not a ceiling above which they may not rise.” Id., at 396. Because it found that the California statute furthers the goal of equal employment opportunity for women, the Court of Appeals concluded: “Title VII does not preempt a state law that guarantees pregnant women a certain number of pregnancy disability leave days, because this is neither inconsistent with, nor unlawful under, Title VII.” Ibid.
We granted certiorari, 474 U.S. 1049 (1986), and we now affirm.
III
A
In determining whether a state statute is pre-empted by federal law and therefore invalid under the Supremacy Clause of the Constitution, our sole task is to ascertain the intent of Congress. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983); Malone v. White Motor Corp., 435 U.S. 497, 504 (1978). Federal law may supersede state law in several different ways. First, when acting within constitutional limits, Congress is empowered to pre-empt state law by so stating in express terms. E. g., Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). Second, congressional intent [479 U.S. 272, 281] to pre-empt state law in a particular area may be inferred where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress “left no room” for supplementary state regulation. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Neither of these bases for pre-emption exists in this case. Congress has explicitly disclaimed any intent categorically to pre-empt state law or to “occupy the field” of employment discrimination law. See 42 U.S.C. 2000e-7 and 2000h-4.
As a third alternative, in those areas where Congress has not completely displaced state regulation, federal law may nonetheless pre-empt state law to the extent it actually conflicts with federal law. Such a conflict occurs either because “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul 373 U.S. 132, 142 -143 (1963), or because the state law stands “as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941). See Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Bd., 467 U.S. 461, 478 (1984); Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U.S. 141, 156 (1982). Nevertheless, pre-emption is not to be lightly presumed. See Maryland v. Louisiana, 451 U.S. 725, 746 (1981).
This third basis for pre-emption is at issue in this case. In two sections of the 1964 Civil Rights Act, 708 and 1104, Congress has indicated that state laws will be pre-empted only if they actually conflict with federal law. Section 708 of Title VII provides:
-
- “Nothing in this title shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment
- practice under this title.” 78 Stat. 262, 42 U.S.C. 2000e-7.
Section 1104 of Title XI, applicable to all titles of the Civil Rights Act, establishes the following standard for pre-emption:
- “Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.” 78 Stat. 268, 42 U.S.C. 2000h-4.
Accordingly, there is no need to infer congressional intent to pre-empt state laws from the substantive provisions of Title VII; these two sections provide a “reliable indicium of congressional intent with respect to state authority” to regulate employment practice. Malone v. White Motor Corp., supra, at 505.
Sections 708 and 1104 severely limit Title VII’s preemptive effect. Instead of pre-empting state fair employment laws, 708 “`simply left them where they were before the enactment of title VII.'” Shaw v. Delta Air Lines, Inc., supra, at 103, n. 24 (quoting Pervel Industries, Inc. v. Connecticut Comm’n on Human Rights and Opportunities, 468 F. Supp. 490, 493 (Conn. 1978), affirmance order, 603 F.2d 214 (CA2 1979), cert. denied, 444 U.S. 1031 (1980)). Similarly, 1104 was intended primarily to “assert the intention of Congress to preserve existing civil rights laws.” 110 Cong. Rec. 2788 (1964) (remarks of Rep. Meader). See also H. R. Rep. No. 914, 88th Cong., 1st Sess., 59 (1963) (additional views of Rep. Meader). 12 The narrow scope of preemption [479 U.S. 272, 283] available under 708 and 1104 reflects the importance Congress attached to state antidiscrimination laws in achieving Title VII’s goal of equal employment opportunity. See generally Shaw v. Delta Air Lines, Inc., 463 U.S., at 101 -102; Kremer v. Chemical Construction Corp., 456 U.S. 461, 468 -469, 472, 477 (1982); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63 -65 (1980). 13 The legislative history of the PDA also supports a narrow interpretation of these provisions, 14 as does our opinion in Shaw v. Delta Air Lines, Inc., supra. 15
In order to decide whether the California statute requires or permits employers to violate Title VII, as amended by the PDA, or is inconsistent with the purposes of the statute, we [479 U.S. 272, 284] must determine whether the PDA prohibits the States from requiring employers to provide reinstatement to pregnant workers, regardless of their policy for disabled workers generally.
B
Petitioners argue that the language of the federal statute itself unambiguously rejects California’s “special treatment” approach to pregnancy discrimination, thus rendering any resort to the legislative history unnecessary. They contend that the second clause of the PDA forbids an employer to treat pregnant employees any differently than other disabled employees. Because “[t]he purpose of Congress is the ultimate touchstone'” of the pre-emption inquiry, Malone v. White Motor Corp., 435 U.S., at 504 (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)), however, we must examine the PDA’s language against the background of its legislative history and historical context. As to the language of the PDA, “[i]t is a `familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.'” Steelworkers v. Weber, 443 U.S. 193, 201 (1979) (quoting Church of the Holy Trinity v. United States, 143 U.S. 457, 459 (1892)). See Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10 (1976); United States v. American Trucking Assns., Inc., 310 U.S. 534, 543 -544 (1940).
It is well established that the PDA was passed in reaction to this Court’s decision in General Electric Co. v. Gilbert, 429 U.S. 125 (1976). “When Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision.” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S., at 678 . By adding pregnancy to the definition of sex discrimination prohibited by Title VII, the first clause of the PDA reflects Congress’ disapproval of the reasoning in Gilbert. Newport News, supra, at 678-679, and [479 U.S. 272, 285] n. 17 (citing legislative history). Rather than imposing a limitation on the remedial purpose of the PDA, we believe that the second clause was intended to overrule the holding in Gilbert and to illustrate how discrimination against pregnancy is to be remedied. Cf. 462 U.S., at 678 , n. 14 (“The meaning of the first clause is not limited by the specific language in the second clause, which explains the application of the general principle to women employees”); see also id., at 688 (REHNQUIST, J., dissenting). 16 Accordingly, subject to certain limitations, 17 we agree with the Court of Appeals’ conclusion that Congress intended the PDA to be “a floor beneath which pregnancy disability benefits may not drop – not a ceiling above which they may not rise.” 758 F.2d, at 396.
The context in which Congress considered the issue of pregnancy discrimination supports this view of the PDA. Congress had before it extensive evidence of discrimination against pregnancy, particularly in disability and health insurance programs like those challenged in Gilbert and Nashville Gas Co. v. Satty, 434 U.S. 136 (1977). 18 The Reports, debates, and hearings make abundantly clear that Congress [479 U.S. 272, 286] intended the PDA to provide relief for working women and to end discrimination against pregnant workers. 19 In contrast to the thorough account of discrimination against pregnant workers, the legislative history is devoid of any discussion of preferential treatment of pregnancy, 20 beyond acknowledgments of the existence of state statutes providing for such preferential treatment. See infra, at 287. Opposition to the PDA came from those concerned with the cost of including pregnancy in health and disability-benefit plans and the application of the bill to abortion, 21 not from those who favored special accommodation of pregnancy.
In support of their argument that the PDA prohibits employment practices that favor pregnant women, petitioners and several amici cite statements in the legislative history to the effect that the PDA does not require employers to extend any benefits to pregnant women that they do not already provide to other disabled employees. For example, the House Report explained that the proposed legislation “does not require [479 U.S. 272, 287] employers to treat pregnant employees in any particular manner. . . . H. R. 6075 in no way requires the institution of any new programs where none currently exist.” 22 We do not interpret these references to support petitioners’ construction of the statute. On the contrary, if Congress had intended to prohibit preferential treatment, it would have been the height of understatement to say only that the legislation would not require such conduct. It is hardly conceivable that Congress would have extensively discussed only its intent not to require preferential treatment if in fact it had intended to prohibit such treatment.
We also find it significant that Congress was aware of state laws similar to California’s but apparently did not consider them inconsistent with the PDA. In the debates and Reports on the bill, Congress repeatedly acknowledged the existence of state antidiscrimination laws that prohibit sex discrimination on the basis of pregnancy. 23 Two of the States mentioned then required employers to provide reasonable leave to pregnant workers. 24 After citing these state laws, [479 U.S. 272, 288] Congress failed to evince the requisite “clear and manifest purpose” to supersede them. See Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 206 (1983). To the contrary, both the House and Senate Reports suggest that these laws would continue to have effect under the PDA. 25
Title VII, as amended by the PDA, and California’s pregnancy disability leave statute share a common goal. The purpose of Title VII is “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of . . . employees over other employees.” Griggs v. Duke Power Co., 401 U.S. 424, 429 -430 (1971). See Hishon v. King & Spalding, 467 U.S. 69, 75 , n. 7 (1984); Franks v. Bowman Transportation Co., 424 U.S. 747, 763 (1976); Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). Rather than limiting existing Title VII principles and objectives, the PDA extends [479 U.S. 272, 289] them to cover pregnancy. 26 As Senator Williams, a sponsor of the Act, stated: “The entire thrust . . . behind this legislation is to guarantee women the basic right to participate fully and equally in the workforce, without denying them the fundamental right to full participation in family life.” 123 Cong. Rec. 29658 (1977).
Section 12945(b)(2) also promotes equal employment opportunity. By requiring employers to reinstate women after a reasonable pregnancy disability leave, 12945(b)(2) ensures that they will not lose their jobs on account of pregnancy disability. 27 California’s approach is consistent with the dissenting opinion of JUSTICE BRENNAN in General Electric Co. v. Gilbert, which Congress adopted in enacting the PDA. Referring to Lau v. Nichols, 414 U.S. 563 (1974), a Title VI decision, JUSTICE BRENNAN stated:
- “[D]iscrimination is a social phenomenon encased in a social context and, therefore, unavoidably takes its meaning from the desired end products of the relevant legislative enactment, end products that may demand due consideration of the uniqueness of the `disadvantaged’ individuals. A realistic understanding of conditions found in today’s labor environment warrants taking pregnancy into account in fashioning disability policies.” 429 U.S., at 159 (footnote omitted).
By “taking pregnancy into account,” California’s pregnancy disability-leave statute allows women, as well as men, to have families without losing their jobs. [479 U.S. 272, 290]
We emphasize the limited nature of the benefits 12945 (b)(2) provides. The statute is narrowly drawn to cover only the period of actual physical disability on account of pregnancy, childbirth, or related medical conditions. Accordingly, unlike the protective labor legislation prevalent earlier in this century, 28 12945(b)(2) does not reflect archaic or stereotypical notions about pregnancy and the abilities of pregnant workers. A statute based on such stereotypical assumptions would, of course, be inconsistent with Title VII’s goal of equal employment opportunity. See, e. g., Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 709 (1978); Phillips v. Martin Marietta Corp., 400 U.S. 542, 545 (1971) (MARSHALL, J., concurring).
C
Moreover, even if we agreed with petitioners’ construction of the PDA, we would nonetheless reject their argument that the California statute requires employers to violate Title VII. 29 Section 12945(b)(2) does not prevent employers from [479 U.S. 272, 291] complying with both the federal law (as petitioners construe it) and the state law. This is not a case where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S., at 142 -143, or where there is an “inevitable collision between the two schemes of regulation.” Id., at 143. 30 Section 12945(b)(2) does not compel California employers to treat pregnant workers better than other disabled employees; it merely establishes benefits that employers must, at a minimum, provide to pregnant workers. Employers are free to give comparable benefits to other disabled employees, thereby treating “women affected by pregnancy” no better than “other persons not so affected but similar in their ability or inability to work.” Indeed, at oral argument, petitioners conceded that compliance with both statutes “is theoretically possible.” Tr. of Oral Arg. 6.
Petitioners argue that “extension” of the state statute to cover other employees would be inappropriate in the absence of a clear indication that this is what the California Legislature intended. They cite cases in which this Court has declined to rewrite underinclusive state statutes found to violate the Equal Protection Clause. See, e. g., Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 152 -153 (1980); Caban v. Mohammed, 441 U.S. 380, 392 -393, n. 13 (1979). This argument is beside the point. Extension is a remedial option to be exercised by a court once a statute is [479 U.S. 272, 292] found to be invalid. 31 See, e. g., Califano v. Westcott, 443 U.S. 76, 89 (1979) (quoting Welsh v. United States, 398 U.S. 333, 361 (1970) (Harlan, J., concurring in result)).
IV
Thus, petitioners’ facial challenge to 12945(b)(2) fails. The statute is not pre-empted by Title VII, as amended by the PDA, because it is not inconsistent with the purposes of the federal statute, nor does it require the doing of an act which is unlawful under Title VII.
