The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site -



Opinion No. 5475

April 6, 1979


Sex discrimination where pregnancy related disability is excluded from sick bank plan


Sex discrimination where pregnancy related disability is excluded from a sick bank plan established by a collective bargaining agreement between a school district and employees of the school district

The Elliott-Larsen Civil Rights Act prohibits exclusion of pregnancy related disability from a sick bank plan established by a collective bargaining agreement between a board of education and employees of the board of education.

Honorable Harold J. Scott

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on a question which may be stated as follows:

Does 1976 PA 453; the Elliott-Larsen Civil Rights Act; MCLA 37.2102 et seq; MSA 3.548(101) et seq; as amended by 1978 PA 153, require that pregnancy related disabilities be included in sick bank plans established under collective bargaining agreements between boards of education of local school districts and the districts' teachers?

Under a sick bank plan, some or all employees contribute sick leave days to a pool of days which individual employees may, under specified conditions, draw upon in case of illness or disability. You attached to you request an example of a mandatory plan under which all teachers are required to contribute sick leave days as specified in the collective bargaining agreement. Teachers who become ill or disabled for more than fourteen consecutive working days may then withdraw days from the bank as necessary with no loss of wages for up to one year. Teachers are not required to replace the days withdrawn.

1976 PA 453, supra, Sec. 202, as amended by 1978 PA 153, provides, in pertinent part, as follows:

'Sec. 202. (1) An employer shall not:

'(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

(c) Segregate, classify, or otherwise discriminate against a person on the basis of sex with respect to a term, condition, or privilege of employment, including a benefit plan or system.'

This section clearly prohibits any discrimination based on sex by an employer with respect to compensation or any other term, condition, or privilege of employment.

1976 PA 453, supra, Sec. 201(d), as added by 1978 PA 153, defines the term 'sex' as follows:

"Sex includes, but is not limited to, pregnancy, childbirth, or a medical condition related to pregnancy or childbirth that does not include nontherapeutic abortion not intended to save the life of the mother.'

Thus, 1976 PA 453, supra, as amended by 1978 PA 153, prohibits discrimination with respect to employment benefits and compensation on the basis of sex and includes pregnancy related disabilities within the definition of sex.

Title VII of the federal Civil Rights Act of 1964; 42 USC 2000e et seq, prohibits sex based discrimination in employment in language essentially the same as that of 1976 PA 453, supra. The federal statute does not, however, define the term 'sex.' In General Electric Co v Gilbert, 429 US 125; 97 S Ct 401; 50 LEd 2d 343 (1976), the United States Supreme Court held that a General Electric employee disability plan, which provided nonoccupational sickness and accident benefits but which excluded disabilities arising from pregnancy, did not violate the sex discrimination provisions of Title VII.

1978 PA 153 appears to have been enacted in response to the Gilbert decision and is intended to prevent 1976 PA 453, supra, from being interpreted in the same manner as Title VII was in Gilbert by expressly defining the term 'sex' to include pregnancy and childbirth. 1978 PA 153 was introduced as House Bill No. 5257. An analysis of House Bill No. 5257 prepared by the House Legislative Analysis Section shortly before consideration and passage of the bill by the House stated:

'Clarification is needed regarding pregnancy benefits because of a 1976 U.S. Supreme Court decision (Gilbert v. General Electric) . . . since the opinion raises questions as to whether pregnancy is strictly a sex-related disability, the decision suggests that the issue would best be addressed specifically rather than left to Michigan's general provision against discrimination on the basis of 'sex."

House Bill No. 5257, Second Analysis (October 13, 1977)

Sick leave clearly is a term or condition of employment. Detroit Police Officers Association v Detroit, 391 Mich 44; 214 NW2d 803 (1974). 1976 PA 453, supra, as amended by 1978 PA 153, thus, prohibits an employer from discriminating against some employees by restricting or excluding the use of sick leave in connection with childbirth or pregnancy-related disabilities.

Sick leave days contributed to a sick bank are still sick leave days. The sick bank is a bargained-for employee benefit under the collective bargaining agreement. Employees may use days withdrawn from the sick bank in the same manner as individual sick leave days and are paid for days withdrawn from the sick bank on the same basis as they are paid for individual sick leave days. Consequently, it is my opinion that the use of sick leave days withdrawn from a sick bank likewise cannot be limited by restricting or excluding their use for childbirth or pregnancy related disabilities without violating the prohibition against sex discrimination by employers in 1976 PA 453, supra, as amended by 1978 PA 153. (1)

Frank J. Kelley

Attorney General

(1) Even where the teachers' collective bargaining organization operates the sick bank, the same result obtains because 1976 PA 453, supra, also applies to labor organizations. Assuming, arguendo, that an employee-operated sick bank is not subject to the provisions of 1976 PA 453, supra, Sec. 202 regarding employer discrimination, it is still subject to 1976 PA 453, supra, Sec. 204 which prohibits discrimination by a labor organization against its members on the basis of sex.