# Gerald Brent Fagan v. National Cash Register Company

> Court of Appeals for the D.C. Circuit · August 21, 1973 · 481 F.2d 1115

URL: https://www.frixlaw.com/law-library/cases/9459670

## Case

- **Full name:** Gerald Brent FAGAN, Appellant, v. NATIONAL CASH REGISTER COMPANY, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** August 21, 1973
- **Citations:** 481 F.2d 1115; 157 U.S. App. D.C. 15
- **Precedential status:** Published
- **Opinion:** Dissent by Wright
- **Judges:** Danaher, Wright, Wilkey
- **Cited by:** 63 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

WRIGHT, Circuit Judge
(dissenting):
The Supreme Court has made clear that Section 703(a) 1 of the Civil Rights Act of 1964 prohibits “one hiring policy for women and another for men.” Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 , 91 S.Ct. 496 , 27 L.Ed.2d 613 (1971). By passing Section 703(a) “Congress intended to prevent employers from refusing ‘to hire an individual based on stereotyped characterizations of the sexes.’ ” Id. at 545 , 91 S.Ct. at 498 . (Mr. Justice Marshall concurring). Thus the question presented by this case is simply whether appellee’s “no long hair for male employees only” policy “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e) (1970). *1127 This exception to the prohibition in Section 703(a) against sex discrimination in employment is “applicable only to job situations that require specific physical characteristics necessarily possessed by only one sex.” Phillips, supra, at 545-546 , 91 S.Ct. at 498 (Marshall, J., concurring). And the burden of proof is on the employer. Id. at 544 , 91 S.Ct. 496 .
Here the District Court granted appellee’s motion to dismiss without even hearing evidence as to whether its admittedly discriminatory long hair policy was a “bona fide occupational qualification” under the Act. Under the circumstances, as in Phillips , I would reverse and remand to the District Court to give appellee the opportunity to prove, if it can, that its policy comes within the exception provided in Section 703(e) of the Act. 2 See Willingham v. Macon Telegraph Publishing Co., 5 Cir., 482 F.2d 535 (decided June 28, 1973); Donohue v. Shoe Corp. of America, C.D.Cal., 337 F.Supp. 1357 (1972).
I respectfully dissent.
. 42 U.S.C. § 2000e-2(a) (1970).
. 42U.S.C. § 2000e-2(e) (1970).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9459670. Public record. Not legal advice.