LINDA WIMBERLY, PETITIONER V. LABOR AND INDUSTRIAL RELATIONS COMMISSION OF MISSOURI, ET AL. No. 85-129 In the Supreme Court of the United States October Term, 1986 On Writ of Certiorari to the Supreme Court of Missouri Brief for the United States as Amicus Curiae Supporting Respondents TABLE OF CONTENTS Question Presented Interest of the United States Statement Summary of argument Argument: Section 3304(a)(12) permits Missouri to disqualify from receiving unemployment compensation all persons who leave work without good cause attributable to their employment, even though women who leave work because of pregnancy are thereby disqualified. A. The language of Section 3304(a)(12) is most reasonably construed as prohibiting states from singling out pregnancy for disadvantageous treatment B. The legislative history of Section 3304(a)(12) evidences congressional intent to prohibit only special disqualifications imposed on women on account of pregnancy C. Petitioner's construction of Section 3304(a)(12) unreasonably restricts the broad discretion that Congress intended the states to have in determining eligibility for unemployment compensation D. Deference should be given to the Department of Labor's consistent interpretation of Section 3304(a)(12) as barring only pregnancy-specific disqualifications Conclusion QUESTION PRESENTED Whether 26 U.S.C. 3304(a)(12), which prohibits states from denying unemployment benefits "solely on the basis of pregnancy," requires a state to provide unemployment benefits to women who are denied reinstatement to employment after leaving work on account of pregnancy, even if the state denies unemployment benefits to all persons who are denied reinstatement after leaving work for reasons not causally connected to the work or the employer. INTEREST OF THE UNITED STATES The United States Department of Labor is responsible for administering the Federal Unemployment Tax Act, which includes the review of state unemployment laws for compliance with the conditions of 26 U.S.C. (& Supp. II) 3304. This case involves the construction of Section 3304(a)(12), which was added to the Act in 1976. Since its adoption, the Department has construed this provision in a manner consistent with the Missouri Supreme Court's decision in this case. STATEMENT 1. In 1935 Congress established a nationwide unemployment insurance system. The system is a cooperative federal-state program designed to provide partial wage replacement for eligible workers during periods of involuntary unemployment. Federal statutes define minimum standards -- which are set out at 26 U.S.C. (& Supp. II) 3304(a) and 42 U.S.C. (& Supp. II) 503 -- to which a state must adhere in order to qualify for grants for the administration of its unemployment compensation law and so that employers in the state may qualify for tax credits. /1/ The Secretary of Labor has the statutory responsibility for determining whether states adhere to the federal standards (26 U.S.C. 3304(c)). The Secretary is directed not to certify a state if, after reasonable notice and opportunity for a hearing, he finds that state law does not conform with an enumerated list of federal standards or that the state is not substantially complying with those requirements (ibid.). /2/ At issue in this case is one federal standard, 26 U.S.C. 3304(a)(12), which prohibits states from denying unemployment benefits "solely on the basis of pregnancy or termination of pregnancy." Aside from the federal standards, the rules governing the state programs are left to the discretion of the states. Each state has a comprehensive unemployment compensation statute and while state programs vary as to specific provisions, all apply some version of a three-part test to determine entitlement to benefits. First, all states require claimants to have earned a specified amount of wages or to have worked a specified number of weeks in covered employment during a one-year base period in order to be entitled to receive benefits. Second, all states also require claimants to be "eligible" for benefits; that is, to be able to work and available for work. Third, claimants who satisfy these requirements may nevertheless be "disqualified" for some other reason set forth in state law. The three major disqualifications, which are common to almost all state unemployment compensation laws (though not set out in any federal standard) are voluntarily leaving a job without good cause, being discharged for misconduct, and refusing to accept an offer of suitable employment. Section 288.050.1(1) of Missouri's unemployment compensation statute disqualifies a claimant who "has left his work voluntarily without good cause attributable to his work or to his employer" (Mo. Ann. Stat. (Vernon 1965 & Supp. 1986)). The Missouri courts have consistently construed this language to disqualify any claimant who has left his or her former job for a reason that is not causally connected to the work or the employer. /3/ Thus, even when a claimant leaves work because he is ill, the claimant is disqualified under the Missouri statute when he is next able and seeks work, unless the illness was caused by or aggravated by the work or the employer. Fifer v. Missouri Division of Employment Security, 665 S.W.2d 81 (Mo. Ct. App. 1984); Duffy v. Labor & Industrial Relations Comm'n, 556 S.W.2d 195 (Mo. Ct. App. 1977). /4/ Accordingly, the Labor and Industrial Relations Commission of Missouri and the state courts have construed the statute to require disqualification of a claimant who leaves her most recent employment because of pregnancy. Bussman Mfg. Co. v. Industrial Comm'n, 335 S.W.2d 456 (Mo. Ct. App. 1960). 2. After having been employed by the J.C. Penny Company for approximately three years, petitioner sought a leave of absence on account of her pregnancy in August 1980. Pursuant to its established policy, J.C. Penny granted petitioner a "leave" without a guarnatee of reinstatement -- that is, it said that petitioner would be rehired only if a position were available when she was ready to return to work. Pet. App. A2. Petitioner's child was born on November 5, 1980. On December 1, 1980, petitioner informed J.C. Penny that she wished to return to work, but was told that there were no positions open. Ibid. Petitioner then filed a claim for unemployment benefits. The Division of Employment Security determined that petitioner was disqualified under Section 288.050.1(1) (Pet. App. A51-A53). Petitioner appealed the decision to the Division's appeals tribunal which, after a full evidentiary hearing, affirmed the decision denying petitioner benefits (id. at A48-A50). The Industrial Relations Commission denied petitioner's petition for review (id. at A46-A47). Petitioner then sought review in the circuit court, and that court held that petitioner was entitled to receive unemployment benefits (Pet. App. A40-A45). The court concluded that Missouri law was inconsistent with Section 3304(a)(12), as construed in Brown v. Porcher, 660 F.2d 1001 (4th Cir. 1981), cert. denied, 459 U.S. 1150 (1983), and therefore could not be enforced (Pet. App. A44). The Missouri Court of Appeals affirmed the circuit court's decision (id. at A23-A40). Although the appellate court expressed "reservations concerning the soundness of the ruling in Brown" (id. at A39), it nevertheless felt compelled to follow the Fourth Circuit's construction of Section 3304(a)(12). The Missouri Supreme Court reversed (Pet. App. A1-A23). Rejecting the notion that it was bound by the Fourth Circuit's decision in Porcher (Pet. App. A7-A8), the court concluded that the plain language of the statute, which proscribes discrimination "solely on the basis of pregnancy," indicates that only laws that single out pregnancy for special treatment and deny unemployment benefits on account of pregnancy alone are prohibited. Moreover, the court determined that this was an appropriate instance in which to defer to the Department of Labor's interpretation of the statute, which is that claimants who leave work because of pregnancy may be treated like all other claimants who leave work for reasons not attributable to their employment in determining whether claimants are entitled to unemployment compensation (id. at A10). /5/ SUMMARY OF ARGUMENT As the Missouri Supreme Court held, the language of 26 U.S.C. 3304(a)(12) providing that states may not deny unemployment benefits "solely on the basis of pregnancy" prohibits states from singling out pregnancy for disadvantageous treatment under state unemployment compensation laws. By focusing on whether pregnancy is the sole basis for a denial of benefits, Congress distinguished special disqualifications pertaining only to pregnancy -- which it prohibited -- from neutral rules which incidentally disqualify pregnant or formerly pregnant women as part of a larger group -- which it did not prohibit. Indeed, petitioner concedes that Congress did not mean to prohibit states from applying other neutral rules, such as the rule that a claimant must be able to work and available for work, in determining whether women who leave work because of pregnancy are entitled to compensation. The language of the statute cannot reasonably be read, as petitioner would read it, to require that any woman who leaves work because she is pregnant is necessarily entitled to receive unemployment benefits when she is next available and able, but unsuccessfully seeks work. Nor is there merit to petitioner's agrument that Congress must have meant to mandate preferential treatment for pregnant claimants. Not only does the plain language of Section 3304(a)(12) appear inconsistent with such an interpretation, but on two occasions this Court has construed similar language in other statutes as embodying only an antidiscrimination principle against adverse treatment based on the protected trait. The legislative history shows that Congress enacted Section 3304(a)(12) to eliminate two kinds of statutes that were common during the 1970s. One type of statute automatically disqualified women from receiving compensation for a period before and after childbrith. The second type of statute established an explicit disqualification from eligibility applicable only to women leaving work on account of pregnancy. The Missouri statute at issue here is not that type of statute because it is not specifically addressed to pregnancy but instead disqualifies all claimants who leave work for a reason not causally related to their work or their employer. The legislative history confirms that Congress prohibited only special disqualifications pertaining to pregnancy, and contains no suggestion of an intent to mandate preferential treatment for pregnant women. To the contrary, a Labor Department researcher testified at the hearings preceding the adoption of Section 3304(a)(12) that legislation was needed to require states to treat pregnancy the same as "any other kind of physical disability." The co-sponsor of the bill that contained Section 3304(a)(12) stated that women who left work on account of pregnancy "ought to be treated no differently than any other unemployed individual available for work." Other statements in the legislative history emphasize that although states would not be permitted to single out women for disadvantageous treatment on account of pregnancy, they would be able to enforce neutral rules relating to eligibility for benefits. The unemployment compensation system is a cooperative federal-state program in which the states have broad autonomy limited by a body of federal standards, including Section 3304(a)(12). Petitioner's interpretation of Section 3304(a)(12) significantly restricts the discretion of the states and creates great uncertainty as to what rules are permissible. It would impose additional costs on the state, and, without drawing a clear line, forbid some but not other neutral disqualification rules on the ground that pregnant or formerly pregnant women are among those being excluded. Such an interpretation should not be adopted absent clear congressional intent to do so, which cannot be found in either the language or the legislative history of the statute. Finally, the Department of Labor, which was involved in the adoption of Section 3304(a)(12), has consistently interpreted it to prohibit only state rules that single out pregnancy for disadvantageous treatment, and has never interpreted it to prohibit states like Missouri from treating pregnant women the same as other claimants. This longstanding interpretation by the agency responsible for administration of the statute is entitled to substantial deference. Since the Department's construction is a reasonable one that is supported by the statutory language, the relevant statements of legislative intent, and the scheme of the unemployment compensation system, its interpretation ought to be adopted by this Court. ARGUMENT SECTION 3304(a)(12) PERMITS MISSOURI TO DISQUALIFY FROM RECEIVING UNEMPLOYMENT COMPENSATION ALL PERSONS WHO LEAVE WORK WITHOUT GOOD CAUSE ATTRIBUTABLE TO THEIR EMPLOYMENT, EVEN THOUGH WOMEN WHO LEAVE WORK BECAUSE OF PREGNANCY ARE THEREBY DISQUALIFIED The states deal with women who leave their jobs on account of pregnancy in a variety of ways. Most states regard such action as a voluntary termination for good cause, following which the woman is eligible for unemployment benefits at such time as she reenters the job market and is able to meet the other relevant criteria. Some states have specifically included pregnancy-motivated termination within a statutory provision enumerating good causes for leaving a job. /6/ Other states, by administrative or judicial decision, have determined that such terminations are involuntary or fall within broader categories constituting good cause for leaving a job, such as illness or compelling personal reasons. /7/ A few states, like Missouri, have defined good cause narrowly, so that all persons who leave their jobs are disqualified from receiving benefits unless they leave for reasons directly attributable to the work or to the employer. /8/ By treating women who leave their jobs because of pregnancy the same as other persons who leave for reasons not causally connected to the work or the employer, including those suffering from other types of temporary disabilities, Missouri has complied with the terms of 26 U.S.C. 3304(a)(12). Congress, in providing that "no person shall be denied compensation under such State law solely on the basis of pregnancy," meant to prohibit states from singling out pregnancy for disadvantageous treatment by specific legislation or discriminatory practices aimed at pregnant women. Contrary to petitioner's assertions, however, Section 3304(a)(12) was not intended to require that pregnant women be immunized from the adverse effects of neutral state rules. A. The language of Section 3304(a)(12) is most reasonably construed as prohibiting states from singling out pregnancy for disadvantageous treatment Section 3304(a)(12) provides that states may not deny unemployment benefits "solely on the basis of pregnancy." That language is most naturally read as prohibiting states from enacting laws or implementing practices that single out pregnancy for disadvantageous treatment, since the statute provides that pregnancy may not constitute the sole basis for a decision to deny benefits. By focusing on the basis for the state's decision, Section 3304(a)(12) requires an examination of the rules that states use in deciding which categories of unemployed persons should receive benefits and which should not. By providing that pregnancy may not constitute the sole reason for the denial, Congress intended to prohibit rules that treat women who are pregnant differently from persons who are in other respects similarly situated. A state law that provides that pregnant women or new mothers are not entitled to receive unemployment compensation for a specified period, regardless of whether they would otherwise be entitled to such benefits, is clearly prohibited by the statute. Likewise, a state law that provides that women who leave work because they are pregnant are not entitled to compensation is prohibited if other persons who leave work for similar reasons are entitled to benefits. /9/ In such cases the sole basis for decisions denying compensation to women affected by such rules is that the claimant was pregnant. But a state law, like Missouri's, that denies benefits to persons who leave their jobs for any reason not causally connected to the work or the employer does not single out women for disadvantageous treatment because they are or were pregnant. Here, petitioner was not denied benefits solely on the basis of pregnancy, but, rather through the application of a rule unrelated to pregnancy, which works to exclude large numbers of men and non-pregnant women as well. Petitioner's primary argument to the contrary is that Section 3304(a)(12) by its plain language requires payment of benefits to any otherwise eligible woman who "stopped working solely because of her pregnancy" (Br. 12). /10/ The essential flaw in this argument is that Section 3304(a)(12) looks to the state's basis for denying benefits rather than to the claimant's motivation in leaving employment. Had Congress meant to guarantee benefits to all women who leave their jobs solely on account of pregnancy, it could have said so. /11/ But it did not. While, as petitioner notes, "she had previously stopped work because of her pregnancy" (Br. 12), it was the fact that she stopped work for a reason bearing no causal connection to her work or her employer that caused the state to find her ineligible for benefits. Indeed, petitioner admits that Section 3304(a)(12) does not mean that women who leave work solely because they are pregnant are entitled to compensation, whether or not they comply with other pregnancy-neutral requirements of the state unemployment law. She agrees (Br. 13, 24) that that Section does not affect the states' ability to impose on pregnant women other types of eligibility requirements, such as the requirement that all claimants be able to work and available for work, in order to receive benefits. /12/ She nevertheless maintains that the Missouri requirement at issue here is somehow different and invalid. Section 3304(a)(12) does not allow for such a distinction. A woman who is unable to work due to the physical limitations of her pregnancy is, just like petitioner, unable to work "solely because of her pregnancy" (see Pet. Br. 12-14). Petitioner offers no explanation as to why the statutory language, by its "plain meaning," requires that the Missouri statute be invalidated but leaves a state free to deny benefits to women who are either unable or unavailable for work because they are pregnant. No such explanation is possible because Section 3304(a)(12) simply prohibits states from singling out pregnancy for disadvantageous treatment. /13/ In other instances involving similarly worded statutes this Court has found a prohibition of discrimination rather than a mandate of special treatment. In Southeastern Community College v. Davis, 442 U.S. 397 (1979), for example, this Court considered Section 504 of the Rehabilitation Act, 29 U.S.C. 794, which states, in part, that "(n)o otherwise qualified handicapped" person "shall, solely by reason of his handicap, be excluded" from participation in certain specified activities. It held that that statute did not require that handicapped individuals be given preferential treatment in the sense of ignoring the ways in which their handicap may adversely affect their qualifications, but rather meant "only that mere possession of a handicap is not a permissible ground for assuming an inability to function in a particular context" (442 U.S. at 405 (footnote omitted)). Similarly, in Monroe v. Standard Oil Co., 452 U.S. 549 (1981), the Court considered Section 2021(b)(3) of the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 2021(b)(3), which provides that persons "shall not be denied retention in employment * * * because of any obligation as a member of a Reserve component of the Armed Forces." The Court held that that provision was intended to "protect( ) the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status" (452 U.S. at 559), and did not require that an employer make work schedule accommodations for reserve obligations. In both of these statutes, Congress used language quite similar to that of Section 3304(a)(12) to protect certain classes of people against adverse treatment. In each instance, contrary to the rule of construction espoused by petitioner, this Court has held that the statute affords no preferential treatment against neutral rules or actions, but rather is a protection against discrimination based on the protected trait. In Section 3304(a)(12), Congress provided that women could not be denied unemployment compensation benefits "solely on the basis of pregnancy." There is no reason to conclude, as petitioner suggests, that Congress meant to protect pregnant or formerly pregnant women from a neutral rule disqualifying anyone who leaves a job for a reason unrelated to the work or the employer. Rather, the language of Section 3304(a)(12) indicates that Congress meant that women could not be singled out for disadvantageous treatment on account of pregnancy. /14/ B. The legislative history of Section 3304(a)(12) evidences congressional intent to prohibit only special disqualifications imposed on women on account of pregnancy The legislative history of Section 3304(a)(12), while sparse, makes clear that Congress was concerned only with special rules directed at women who are or have been pregnant. In 1975, during hearings on "Existing Unemployment Compensation Programs," a Labor Department researcher testified concerning the undesirability of state statutory provisions "which treat( ) inability to work because of pregnancy or the existence of pregnancy * * * as different from any other kind of physical disability." Phase I: Existing Unemployment Compensation Programs: Hearings Before the Subcomm. on Unemployment Compensation of the House Comm. on Ways and Means, 94th Cong., 1st Sess. 86-87 (1975) (statement of Margaret Dahm, Unemployment Insurance Service, Office of Research, Legislation and Program Policy). There was no testimony indicating any disagreement with state provisions that neutrally disqualified workers who leave their jobs for reasons unrelated to their employment. /15/ Nor was there any testimony suggesting that women who had been pregnant should be given any sort of preferential treatment under unemployment compensation rules. A bill containing the language now found in Section 3304(a)(12) was reported from committee to the full House at the end of 1975. The House Report explained the focus of the new federal requirement by stating: "Nineteen States have special disqualification provisions pertaining to pregnancy. Several of these provisions hold pregnant women unable to work and unavailable for work; the remainder disqualify a claimant because she left work on account of her condition or because her unemployment is a result of pregnancy." H.R. Rep. 94-755, 94th Cong., 1st Sess. 7 (1975) (emphasis added). /16/ Thus it appears that Congress sought to prohibit one type of statute that disqualifies women for a defined period before and after the birth of a child, /17/ and a second type that singles out and disqualifies women who leave work because they are pregnant. /18/ Since the House Report stated that the bill was aimed at eliminating "special disqualification provisions pertaining to pregnancy," it seems clear that it was intended to prohibit states from enacting statutes that single out pregnancy for special treatment, and not to prohibit states from enforcing neutral rules that do not specifically relate to pregnancy, like the Missouri rule at issue here. /19/ That Congress thus sought to eliminate only those state rules that single out pregnant women for disadvantageous treatment is echoed in the floor statement of the ranking minority member of the House subcommittee, who was also co-sponsor of the bill. He stated: "In an effort to eliminate a discriminatory practice directed against women, the bill prohibits States from denying benefits solely on the basis of pregnancy. This does not mean that all pregnant unemployed women will automatically receive unemployment compensation benefits. It simply means that pregnant women will no longer be denied benefits solely on the basis of their pregnancy. If a pregnant woman is available for work, able to work, and cannot find a job, she ought to be treated no differently than any other unemployed individual available for work." 122 Cong. Rec. 22518 (1976) (remarks of Rep. Steiger (emphasis added)). After the House issued its report, this Court announced its decision in Turner v. Department of Employment Security, 423 U.S. 44 (1975). The Court struck down Utah's statute providing that women were disqualified from receiving unemployment compensation for an 18-week period around the date of childbirth on the ground that such a conclusive presumption of incapacity was violative of due process. The Senate Report referred to this Court's decision in Turner in a way that helps to clarify the meaning of Section 3304(a)(12): "In a number of States, an individual whose unemployment is related to pregnancy is barred from receiving any unemployment benefits. In 1975 the Supreme Court found a provision of this type in the Utah unemployment compensation statute to be unconstitutional. * * * A number of other States have similar provisions although most appear to involve somewhat shorter periods of disqualification." S. Rep. 94-1265, supra, at 19, 21 (emphasis added). /20/ Nothing in the Senate Report, or elsewhere in the legislative history, indicates that Congress focused on, much less intended to eliminate, neutral state rules such as Missouri's that treat women who leave work on account of pregnancy the same as others who leave work for reasons unrelated to their employment. /21/ On the contrary, the Senate Report emphasized that "(p)regnant individuals would * * * continue to be required to meet generally applicable criteria of availability for work and ability to work" (S. Rep. 94-1265, supra, at 21). /22/ In sum, the legislative history evidences only congressional concern to prohibit rules specifically concerned with pregnancy, does not contain any hint that Congress intended to mandate preferential treatment for women on account of pregnancy, and to the contrary emphasizes that states may enforce neutral rules relating to eligibility for benefits. We therefore believe that Congress intended no prohibition of neutral state rules that disqualify women who leave work on account of pregnancy only as part of a much larger group disqualified because they left for reasons unrelated to their employment. /23/ C. Petitioner's construction of Section 3304(a)(12) unreasonably restricts the broad discretion that Congress intended the states to have in determining eligibility for unemployment compensation In our view the language and legislative history of Section 3304(a)(12) make clear that Congress did not intend to prohibit Missouri from enforcing the disqualification provision at issue here against women who leave their jobs on account of pregnancy. In any event, a presumption arises from the structure and cooperative scheme of the unemployment compensation system that state rules are permissible in the absence of clear intent on the part of Congress to limit state discretion, and nothing in the language or history of Section 3304(a)(12) appears to challenge that presumption here. In enacting Titles III and IX of the Social Security Act in 1935, Congress envisioned the unemployment insurance program as a cooperative federal-state program in which states would take primary responsibility for the design and administration of the program within their own jurisdictions. The Senate Report states that "(e)xcept for a few standards which are necessary to render certain that the State unemployment compensation laws are genuine unemployment compensation acts and not merely relief measures, the States are left free to set up any unemployment compensation system they wish, without dictation from Washington." S. Rep. 628, 74th Cong., 1st Sess. 13 (1935). /24/ This Court has recognized that Congress gave "(a) wide range of judgment * * * to the several states as to the particular type of statute to be spread upon their books." Steward Machine Co. v. Davis, 301 U.S. 548, 593 (1937). See also Baker v. General Motors Corp., No. 85-117 (July 2, 1986), slip op. 11-14; New York Telephone Co. v. New York State Department of Labor, 440 U.S. 519, 537 (1979) (plurality opinion). For the most part, decisions regarding eligibility, disqualification, waiting periods, benefit rates, and similar issues have been the province of the states. See Baker v. General Motors Corp., supra; Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 483-484 (1977). More specifically, this Court has noted that both the states and Congress have been concerned with protecting the fiscal integrity of state unemployment insurance programs (431 U.S. at 492-493) and with the possibility that states might provide for eligibility greater than their funds can handle (id. at 484). /25/ In light of Congress's "sensitiv(ity) to the importance of the States' interest in fashioning their own unemployment compensation programs" (New York Telephone Co. v. New York State Department of Labor, 440 U.S. at 539), the fundamental standards contained in 26 U.S.C. (& Supp. II) 3304 and 42 U.S.C. (& Supp. II) 503 must be construed to give the states great latitude in designing their own programs. See, e.g., Watkins v. Cantrell, 736 F.2d 933, 939 (4th Cir. 1984) (construing 26 U.S.C. 3304(a)(15)). Section 304(a)(12) should therefore be read to preserve as much as possible of the states' discretion while fulfilling Congress's intent in its enactment. Petitioner's interpretation of Section 3304(a)(12), which would bar the application of certain neutral state rules (but not others) on the ground that some of those impacted are presently or formerly pregnant women, significantly intrudes upon the states' discretion and impairs their ability to frame a system of unemployment compensation. Such an interpretation imposes a burden of preferential treatment for pregnant women, which is costly to the state. It also creates uncertainty as to how one would distinguish between neutral rules which would be permissible, such as the requirements that claimants be able and available for work, and those which would not, such as the Missouri rule at issue here. Since Congress clearly meant to leave the states free from unnecessary federal interference in furthering their own particular policies through their unemployment compensation systems, such an interpretation should not be accepted in the absence of a clear indication of congressional purpose. Yet, as we have shown, petitioner's construction finds no support in the language of Section 3304(a)(12), and there is no suggestion in the legislative history that Congress intended to mandate preferential treatment of pregnant women by the states. There is therefore no warrant for construing Section 3304(a)(12) to forbid treatment of pregnant women on the same terms as other workers who voluntarily relinquist their jobs for reasons unrelated to their work or their employer. /26/ D. Deference should be given to the Department of Labor's consistent interpretation of Section 3304(a)(12) as barring only pregnancy-specific disqualifications The Department of Labor has consistently interpreted Section 3304(a)(12) to prohibit states from singling out pregnancy as the sole basis for denying benefits, and has never required states to accord preferential treatment to pregnant or recently pregnant claimants. In 1976, shortly after the enactment of Section 3304(a)(12), the Department's Unemployment Insurance Service /27/ issued instructions to the states for implementing its provisions. The Department stated that "(i)t is necessary that any provision specifically relating to pregnancy in the determination of entitlement to benefits be deleted" from state statutes or regulations (Draft Language and Commentary to Implement the Unemployment Compensation Amendments of 1976 -- P.L. 94-556, at 62 (1976) (hereinafter cited 1976 Amendments)). The Department explained that Section 3304(a)(12) "requires that the entitlement to benefits of pregnant claimants be determined on the same basis and under the same provisions applicable to all other claimants. It does not mean that pregnant claimants are entitled to benefits without meeting the requirements of the law for the receipt of benefits. It requires only that a pregnant claimant not be treated differently under the law from any other unemployed individual and that benefits be paid or denied not on the basis of pregnancy but on the basis of whether she meets the statute's conditions for receipt of benefits." 1976 Amendments 62. /28/ The Department thus emphasized that under Section 3304(a)(12) women could not be singled out for disadvantageous treatment on account of pregnancy. /29/ In a subsequent communication to the states the Department addressed the question whether pregnant claimants could be treated more favorably than other claimants. The Department noted that the states had various rules regarding the treatment of "claimants who must leave their jobs because of illness or injury, including pregnancy" (Supplement No. 1 to 1976 Draft Language and Commentary 26 (Dec. 7, 1976)). The Department stated that Section 3304(a)(12) "does not speak to treating pregnant claimants more favorably. It only requires that they not be disqualified solely on the basis of pregnancy or its terminations." Ibid. The Department thus concluded that Section 3304(a)(11) allowed states to construe their disqualification rules in a manner that found pregnant women eligible for benefits even in cases where other claimants would not be eligible, but that it did not mandate such preferential treatment. The Department specifically affirmed these views in a 1980 letter from the Administrator of the Unemployment Insurance Service to the South Carolina unemployment compensation agency solicited during the litigation of Brown v. Porcher, supra, and included in the record of that case (C.A. App. at 131-133). The letter addressed the validity of a South Carolina rule which, like the Missouri rule at issue here, disqualified all claimants who left their employment for a reason not related to the work or to the employer. /30/ The claimant in Brown v. Porcher contended, as does petitioner, that under Section 3304(a)(12) a pregnant claimant is entitled to benefits after her pregnancy has ended and she is able and available for work. The Department rejected this argument, concluding that "South Carolina law as interpreted by the State Employment Security Commission is not inconsistent with the Federal requirements of Section 3304(a)(12) FUTA, because so applied it does not distinguish between pregnant claimants or any other unemployed individuals whose separation is determined to be due to illness" (C.A. App. at 132). /31/ Accordingly, in the Administrator's view states like Missouri are in compliance with federal standards. /32/ Because the Department of Labor has the primary responsibility for overseeing compliance with the federal standards governing state unemployment compensation laws (see Porcher v. Brown, 459 U.S. at 1151-1152 (White, J., dissenting from the denial of certiorari)), its interpretation of Section 3304(a)(12) is entitled to considerable deference. See, e.g., Young v. Community Nutrition Institute, No. 85-664 (June 17, 1986), slip op. 6; North Haven Board of Education v. Bell, 456 U.S. 512 (1982); E.I. duPont de Nemours & Co. v. Collins, 432 U.S. 46, 54-55 (1977); Udall v. Tallman, 380 U.S. 1, 16 (1965). Indeed, to the extent that Section 3304(a)(12) is silent or ambiguous with respect to its effect on the Missouri rule at issue here, this Court need only determine whether the Labor Department's interpretation of the statute it administers "is based on a permissible construction of the statute." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (footnote omitted). Considering the broad discretion Congress gave the states in fashioning their unemployment compensation programs and Congress's clear intention not to exempt pregnant women from those criteria of entitlement applicable to other claimants, the Labor Department's interpretation of 26 U.S.C. 3304(a)(12) is a reasonable one that is supported by the statutory language and the relevant statements of legislative intent. See St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 783 n.13 (1981). Its interpretation is especially worthy of deference where, as here, the Department was involved in the proceedings that led to the enactment of Section 3304(a)(12) and it has interpreted the provision consistently since its enactment. CONCLUSION The judgment of the Missouri Supreme Court should be affirmed. Respectfully submitted, CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General CHRISTOPHER J. WRIGHT Assistant to the Solicitor General JOHN F. CORDES MARLEIGH D. DOVER Attorneys GEORGE R. SALEM Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor CAROL A. DE DEO Deputy Associate Solicitor BARBARA J. JOHNSON JEFFREY A. HENNEMUTH Attorneys Department of Labor AUGUST 1986 /1/ Under the Federal Unemployment Tax Act, a payroll tax is levied on employers. Proceeds of the tax are used primarily to fund the administrative costs of state unemployment benefit programs that meet the federal minimum standards. 42 U.S.C. (& Supp. II) 502, 1101. Employers within a state that has a program satisfying the federal minimum standards receive a partial credit against their Federal Unemployment Tax Act liability for their contributions to the state unemployment compensation fund. 26 U.S.C. (& Supp. II) 3302, 3304. /2/ All fifty states, the District of Columbia, Puerto Rico, and the Virgin Islands have structured their unemployment laws to participate in the federal-state program. /3/ One court explained this interpretation of the statute by referring to the consistent position of the Missouri court's "that Section 288.050(.)1(1) may not be read as if there were a disjunction after the word 'voluntarily' so that the section imposed dual elements for a finding of disqualification, i.e., that the termination was both voluntary and without good cause attributable to her work or to her employer" (Duffy v. Labor & Industrial Relations Comm'n, 556 S.W.2d 195, 198 (Mo. Ct. App. 1977)). However one explains it, this issue of Missouri law has been clearly and emphatically determined by the Missouri courts. /4/ Missouri courts have also determined that claimants left work "voluntarily without good cause attributable to his work or to his employer" when the claimant left work on account of the illness of the claimant's spouse (Division of Employment Security v. Labor & Industrial Relations Comm'n, 617 S.W. 2d 620, 623 (Mo. Ct. App. 1981)), and when the claimant left work because the claimant was unable to find a babysitter (Lyell v. Labor & Industrial Relations Comm'n, 553 S.W.2d 899 (Mo. Ct. App. 1977)). /5/ Three judges dissented. They concluded that Section 3304(a)(12) "on its face" bars disqualification of women who leave their jobs because of pregnancy (Pet. App. A18), and rejected the Department of Labor's contrary interpretation as unpersuasive (id. at A17-A18). The dissenting judges also would have read Section 288.050.1(1) disjunctively, contrary to the prior appellate decisions construing the statute, so that a claimant would be entitled to receive unemployment benefits as long as the claimant did not leave work "voluntarily" (Pet. App. A19). /6/ See, e.g., Ark. Stat. Ann. Section 81-1106(a) (1976 & Supp. 1985); S.D. Codified Laws Ann. Section 61-6-3 (1978); Tenn. Code Ann Section 50-7-303(a)(1) (Supp. 1985). /7/ See, e.g., Craighead v. Administrator, Department of Employment Security, 420 So. 2d 688 (La. Ct. App. 1982); Cal. Admin. Code tit. 22, R. 1256-15(b), reprinted in 2 Unempl. Ins. Rep. (CCH) Paragraph 52190 (Apr. 8, 1982). /8/ See, e.g., Okla. Stat. Ann. tit. 40, Sections 2-404, 2-405 (West 1986); Vt. Stat. Ann. tit. 21, Section 1344(a)(3) (1978 & Supp. 1985). /9/ These two types of statutes were common during the 1970s, and the legislative history shows that Congress was aware of these two types of statutes and intended Section 3304(a)(12) to prohibit states from enforcing them. See pages 16-18, infra. /10/ In Brown v. Porcher, 660 F.2d at 1004, the court of appeals similarly concluded without extensive analysis of the language of Section 3304(a)(12) that it unambiguously requires payment of unemployment compensation to women who stopped working because they were pregnant. Had the court considered carefully the words of the statute, we think it would have concluded, as three Justices of this Court noted in dissenting from the Court's denial of certiorari in Porcher, that "(i)t is by no means clear, however, that Section 3304(a)(12) does not simply provide that pregnancy must be treated like all other disabilities -- that pregnancy simply cannot be singled out for unfavorable treatment" (459 U.S. at 1151 (White, J., with whom Powell, J., and Rehnquist, J., joined)). /11/ Had Congress intended Section 3304(a)(12) to be construed in the manner urged by petitioner, it could have provided, for example, that "no woman who leaves work because of pregnancy or termination of pregnancy shall be denied compensation when she is able to work and available for work." /12/ Petitioner acknowledges (Br. 24-25) Congress's intent that pregnant women meet relevant state eligibility criteria such as "ability to work, availability for work, and efforts to find work." That concession is mandated by the fact that it is almost inconceivable that Congress meant to require states to provide benefits, for example, to women who left work because they were pregnant but do not want to return to work. Moreover, the legislative history makes clear beyond any doubt that Congress did not intend to except women from common eligibility rules such as the rule that claimants must be available for work. See, e.g., S. Rep. 94-1265, 94th Cong., 2d Sess. 21 (1976); H.R. Rep. 94-755, 94th Cong., 1st Sess. 50 (1975); 122 Cong. Rec. 22518 (1976) (remarkes of Rep. Steiger). /13/ We note that nothing in the language of Section 3304(a)(12) prohibits states from singling out pregnant women for advantageous treatment. That is in contrast to the language of the Pregnancy Discrimination Act, 42 U.S.C. 2000e(k) (prohibition of discrimination because of sex includes discrimination "because of or on the basis of pregnancy, childbirth, or related medical conditions") at issue in California Federal Savings & Loan Ass'n v. Guerra, No. 85-494, which in our view prohibits employers from favoring pregnant women over other workers suffering short-term disabilities in employment decisions governed by Title VII of the Civil Rights Act of 1964. In addition, as we stated in our amicus brief (at 8) in No. 85-494, we do not doubt that Congress or state legislatures could enact rules favoring pregnant women that would pass constitutional muster, since there is a rational basis for promoting childbirth. Harris v. McRae, 448 U.S. 297, 325 (1980). This Court's decision in California Federal Savings & Loan Ass'n, dealing with Title VII, does not control its decision in this unemployment compensation case. See Vick v. Texas Employment Comm'n, 514 F.2d 734, 736 (5th Cir. 1975). Nor does this case control that one. Still, the issues posed in the two cases are not unrelated. Our positions -- that Congress mandated equal treatment in the Pregnancy Discrimination Act and did not mandate preferential treatment in enacting Section 3304(a)(12) -- give the two statutes a consistent reading. Even if the position we support in California Federal Savings & Loan Ass'n should not prevail, however, and the Court holds that the Pregnancy Discrimination Act does not prohibit preferential treatment of women on account of pregnancy, there would be no inconsistency in holding in this case that Section 3304(a)(12) does not mandate preferential treatment of women on account of pregnancy. If our position prevails in California Federal Savings & Loan Ass'n, on the other hand, it would attribute some degree of inconsistency to Congress to hold that, while forbidding preferential treatment in the Pregnancy Discrimination Act, it mandated preferential treatment in Section 3304(a)(12). /14/ Petitioner's related argument (Br. 14-18) that Section 3304(a)(12) requires that she is entitled to compensation because it is not phrased like other "antidiscrimination provision(s)" (Br. 14), is equally unavailing. In petitioner's view, the omission from Section 3304(a)(12) of the word "discriminate" or other language unequivocally requiring equal treatment shows that the section was intended to mandate preferential treatment for pregnant women. Petitioner has offered no support for her novel assertion that some form of the root word "discriminate" is essential to a statute that prohibits one class of individuals from being singled out for disadvantageous treatment. /15/ While it appears that a minority of states apply rules like Missouri's that disqualify all claimants who leave work for a reason unrelated to their employment, the application of Missouri's rule to disqualify women who leave work because they are pregnant was well-established at least 15 years before Section 3304(a)(12) was enacted. See Bussman Mfg. Co. v. Industrial Comm'n, supra. Anyone opposed to that interpretation could have raised the issue at the hearings on the unemployment compensation provisions, just as others complained about rules that single out pregnancy for disadvantageous treatment. /16/ The report did not specify which 19 states had special disqualification provisions pertaining to pregnancy, but petitioner agrees (Br. 23) that Congress probably was referring to the 19 states listed in a program letter issued by the Department of Labor (Unemployment Insurance Program Letter No. 33-75 (Dec. 8, 1975)) a week before the committee report was filed. In that letter, the Department called for the repeal of "a number of State laws (which) still include special disqualifications for pregnancy or automatically consider unavailable for work any pregnant claimant" (id. at 2), and in an attached summary discussed statutory provisions of 19 states relating to pregnancy. See note 19, infra. /17/ The provision of the Utah unemployment compensation statute invalidated on constitutional grounds in Turner v. Department of Employment Security, 423 U.S. 44 (1975), illustrates this sort of rule. Utah Code Ann. Section 35-4-5(h)(1) (1974) provided that a woman was disqualified for 12 weeks before the expected date of childbirth and for six weeks after childbirth, even if she left work for reasons unrelated to pregnancy. The claimant in Turner, for example, left work for reasons unrelated to pregnancy and received compensation for about four months until 12 weeks before she was expected to give birth. The Utah statute disqualified her from receiving compensation for the 18-week period following immediately thereafter. 423 U.S. at 44. /18/ Section 35-4-5(h)(2) of the Utah statute, which was not at issue in Turner, illustrates this sort of rule. Section 35-4-5(h)(2) provided that a woman was disqualified "when it is found by the commission that her total or partial unemployment is due to pregnancy." That provision meant that women who left work because they were pregnant were disqualified from receiving benefits until after they resumed working. See Unemployment Insurance Program Letter No. 1-76, at 4 (Feb. 4, 1976). /19/ Unemployment Insurance Program Letter No. 33-75, to which the House Report apparently referred in its statement that 19 states had special disqualification provisions pertaining to pregnancy (see note 16, supra), listed the Utah statute that specifically barred women who left work on account of pregnancy in its summary of "discriminatory state provisions relating to pregnancy." It appears from that summary that Arkansas, Colorado, Indiana, Minnesota, Montana, and Nevada also barred women who left work because they were pregnant from receiving unemployment compensation. The letter also listed the Utah statute that disqualified women from receiving unemployment compensation for an 18-week period around the date of childbirth in its summary of discriminatory state provisions. It appears from the summary that Kansas, Montana, New Jersey, Rhode Island, and West Virginia also had rules barring women from receiving unemployment compensation for a period around the expected date of childbirth. While the summary also mentioned a few other miscellaneous sorts of provisions directed specifically at pregnancy, it did not mention Missouri, even though Missouri had barred women who left work on account of pregnancy, like all other workers who left work for reasons unrelated to their employment, from receiving unemployment compensation at least since 1960 (see Bussman Mfg. Co. v. Industrial Comm'n supra). Nor did the summary list any other state with a rule like Missouri's, such as the South Carolina provision at issue in Porcher. /20/ Petitioner argues that Section 3304(a)(12) should be construed to mandate preferential treatment for women who leave work on account of pregnancy since, in her view, it otherwise merely codifies Turner and "Congress should not be presumed to have adopted useless or unnecessary legislation" (Br. 21). As an initial matter, it would not necessarily be unreasonable to assume that Congress intended that provision to strike down only the same sorts of state statutes that this Court invalidated in Turner since Section 3304(a)(12) had been introduced before the Court's decision. In addition, the Court's holding in Turner -- that "a conclusive presumption of incapacity during so long a period before and after childbirth is constitutionally invalid" (423 U.S. at 46) -- appeared to hold open the question whether shorter periods of automatic disqualification were permissible, while Section 3304(a)(12) bars automatic pregnancy disqualification provisions of any length. In any event Section 3304(a)(12) clearly did more than codify Turner. As the House report had noted, Section 3304(a)(12) was intended to invalidate two types of state statutes, and this Court only addressed one of those types of statutes in Turner, the type that involved a period of mandatory disqualification around the date of childbirth. The Court did not address in Turner -- but Section 3304(a)(12) clearly invalidates -- statutes that specifically relate to pregnancy and disqualify women who leave work on account of pregnancy from receiving unemployment compensation, while other similarly situated individuals remain eligible for benefits. /21/ Petitioner's argument (Br. 19-20) that the legislative history supports her contention that Section 3304(a)(12) is not an antidiscrimination provision but instead mandates preferential treatment is without merit. Petitioner notes that an early version of the provision that became Section 3304(a)(12) contains language almost identical to the language that was enacted and also, following the word "and," further provided that "'determinations under any provision of such State law relating to voluntary terminations of employment, availability for work, active search for work or refusal to accept work shall not be made in a manner which discriminates on the basis of pregnancy'" (Br. 19 (emphasis omitted)). Petitioner contends that the deletion of this second clause shows that the provision mandates preferential treatment for pregnant women. But nothing in the legislative history indicates that the deletion of this lengthy and redundant second clause was intended or understood to change the meaning of the provision. Moreover, we do not understand how the deletion of a clause following the word "and" could change the meaning of the clause that preceded the word "and," as petitioner contends. /22/ Similarly, a 1976 committee print stated that "(p)regnant individuals will * * * continue to be required to meet generally applicable criteria of seeking work, availability for work, and ability to work" (Staffs of the Senate Comm. on Finance and the House Comm. on Ways and Means, 94th Cong., 2d Sess., Unemployment Compensation Amendments of 1976, at 6 (1976)). A committee print prepared in 1975 stated that "special disqualifications because of pregnancy (are) discriminatory and unnecessary" (Staff of House Subcomm. on Unemployment Compensation of the House Comm. on Ways and Means, 94th Cong., 1st Sess., Information to Accompany H.R. 10210, at 12 (1975). /23/ Moreover, the historical context in which Section 3304(a)(12) was adopted also indicates that Congress intended Section 3304(a)(12) to require that women who leave work on account of pregnancy be treated the same as other workers, and not that they receive preferential treatment. There was a vigorous debate during the 1970s concerning the treatment of pregnant women in employment matters. Broadly speaking, the debate was whether pregnant women should be singled out for disadvantageous treatment because, unlike most disabled persons, the disability suffered by pregnant women is in some sense voluntary. This Court upheld employer disability plans that excluded pregnant women from coverage in cases involving constitutional (Geduldig v. Aiello, 417 U.S. 484 (1974)) and statutory attack (General Electric Co. v. Gilbert, 429 U.S. 125 (1976)). Critics of this Court's position contended that pregnant women should be treated like other disabled workers, and their position prevailed in Congress when it adopted the Pregnancy Discrimination Act of 1978, which in part amended Title VII of the Civil Rights Act of 1964 to provide that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work" (42 U.S.C. 2000e(k)). The position that petitioner advocates -- that pregnant women must be treated better than other disabled persons -- was not one generally pressed in the 1970s when the Pregnancy Discrimination Act and Section 3304(a)(12) were adopted. Rather, the debate was whether pregnant women should be protected against treatment less favorable than that received by other disabled workers. Accordingly, we do not think that it is realistic to suppose that Congress intended to mandate preferential treatment. /24/ See also Report of the Committee on Economic Security, reprinted in Hearings on S. 1130 Before the Senate Comm. on Finance, 74th Cong., 1st Sess. 1326 (1935), which makes clear the Congressional intention: "The plan for unemployment compensation that we suggest contemplates that the States shall have broad discretion to set up the type of unemployment compensation they wish. We believe that all matters in which uniformity is not absolutely essential should be left to the States." /25/ This Court has recognized that "even involuntary unemployment is not always a sufficient condition to qualify for benefits" under state law (Baker v. General Motors Corp., slip op. 12, discussing Ohio Bureau of Employment Services v. Hodory, supra (emphasis in original)). In expending its finite resources, a state is plainly permitted, absent a specific prohibition in the applicable federal laws, to deny benefits to "innocent" persons unemployed through no fault of their own. See Baker v. General Motors Corp., supra (Michigan statute disqualified persons who paid special union dues to strike fund and were ultimately laid off as a result of strikes at other plants that were financed by the fund); Ohio Bureau of Employment Services v. Hodory, supra (Ohio statute disqualified person who was laid off when his plant was closed due to shortage of fuel caused by strike at coal mine owned by his employer). /26/ In light of the discretion given the states in fashioning their unemployment compensation programs, petitioner's arguments disputing the wisdom of Missouri's policy as petitioner perceives it -- that Missouri improperly treats pregnancy as an illness (Br. 26), that Missouri improperly regards pregnancy as a voluntary condition (Br. 27), and that Missouri improperly treats a claimant on a leave of absence without guarantee of reinstatement as one who has voluntarily terminated employment (Br. 27-28) -- are appropriately addressed to the Missouri legislature, not to this Court. /27/ The Unemployment Insurance Service is a unit within the Labor Department's Employment and Training Administration. The Service, which is headed by a Director (formerly Administrator), is responsible for reviewing state laws and their application to determine whether the states conform to and substantially comply with the federal standards set forth in the Federal Unemployment Tax Act and the Social Security Act. /28/ The Department's construction of the pregnancy provision was consistent with a series of Labor Department directives issued to the states over the preceding six years, calling on them to eliminate from their laws any provisions discriminating against claimants on the basis of sex, and particularly recommending the repeal of provisions "subjecting pregnant and post-pregnant women to more stringent eligibility conditions than are applied for disabilities common to both sexes." Unemployment Insurance Program Letter No. 1097, at 3 (Dec. 31, 1970). See also Unemployment Insurance Program Letter No. 1186 (May 12, 1972); Unemployment Insurance Program Letter No. 33-75, supra; Unemployment Insurance Program Letter No. 1-76, supra. /29/ Petitioner claims (Br. 33), based on telephone conversations with state officials, that Minnesota and North Dakota apply facially neutral rules in ways that disadvantage pregnant claimants compared with persons disabled by illness. Petitioner cites no state administrative or judicial decisions in support of this assertion. As explained more fully, infra (at note 32), the Department typically scrutinizes such decisions, as well as state laws and regulations, as part of its annual certification process. As also noted, infra, however, certification does not, in any event, constitute affirmative approval of all practices followed by a state. If in fact Minnesota and North Dakota are singling out pregnant women for disadvantageous treatment, then they are not complying with Section 3304(a)(12). /30/ The letter noted that "(u)nder South Carolina law, a claimant who separates from employment because of illness is deemed to have voluntarily left work without good cause attributable to the employment. This is true also with respect to pregnancy which under South Carolina law is treated as an illness." C.A. App. at 132, Brown v. Porcher, supra. /31/ The Fourth Circuit in Brown v. Porcher, supra, gave little weight to the Administrator's letter, citing his failure to support his interpretation with pertinent authority or legislative history (660 F.2d at 1004-1005). It must be noted, however, that the Labor Department did not participate as either party or amicus before the court of appeals in that case and thus the court had a limited opportunity to consider the longstanding and consistent nature of the Department's interpretation or its basis in the legislative history. In an amicus brief filed with this Court in opposition to the petition for a writ of certiorari in Porcher, the Department fully supported and explained its view that Section 3304(a)(12) was not meant to require extension of benefits "to those who leave work voluntarily for a host of reasons (including pregnancy) that are not employment-related," but rather was intended "to ban only those state laws that single out pregnancy for disadvantageous treatment" (Amicus Br. at 8 (footnote omitted)). /32/ As petitioner accurately observes (Br. 31-33), the Department's annual certifications of Missouri under 26 U.S.C. 3304(c) do not foreclose its further consideration and possible disapproval of the provisions in the state law. Petitioner's further assertion (Br. 32-33) that the Labor Department does not look behind the state statutory language in reviewing state conformity and compliance with Federal Unemployment Tax Act and Social Security Act provisions is, however, erroneous. In determining whether a state is in compliance with federal standards, the Secretary examines both state statutes on their face and as interpreted by state administrative and judicial bodies. See 20 C.F.R. 601.3 (states must submit to the Secretary "all relevant State materials, such as statutes, executive and administrative orders, legal opinions, rules, regulations, interpretations, court decisions"). While the Department's objections to a state law are thus indicative of the Department's interpretation of the state law both on its face and as interpreted, the mere fact that a state has been certified by the Secretary under the Federal Unemployment Tax Act does not constitute Labor Department acquiescence in the state's interpretation or application of the state law in any case. The Department reserves the right to raise pertinent conformity issues in a subsequent year if, for example, an improper interpretation of the state's law had not come to the Department's attention or there was insufficient time for federal and state officials to confer on the issue.