# Lewis v. Cowen

> District Court, E.D. Pennsylvania · October 11, 1977 · 443 F. Supp. 544

URL: https://www.frixlaw.com/law-library/cases/9700466

## Case

- **Full name:** Albert A. LEWIS Et Al., Plaintiffs, v. James L. COWEN Et Al., Defendants
- **Court:** District Court, E.D. Pennsylvania
- **Decided:** October 11, 1977
- **Citations:** 443 F. Supp. 544; 16 Fair Empl. Prac. Cas. (BNA) 428
- **Precedential status:** Published
- **Opinion:** Concurrence by Rosenn
- **Judges:** Rosenn, Higginbotham, Bechtle
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9700466

## Opinion text

ROSENN, Circuit Judge,
concurring.
I concur with the majority in all respects that section 228b(a) of the Railroad Retirement Act was not superseded by Title VII of the Civil Rights Act of 1964. This holding is supported by Congress’ later explicit repeal of section 228, subsequent to the passage of the Civil Rights Act. I also concur with the majority that section 228 is constitutional, but wish to state separately my reasons.
The majority and I start with the same basic standard of review for equal protection challenges to legislation classified on the basis of gender. Craig v. Boren, 429 U.S. 190 , 97 S.Ct. 451 , 50 L.Ed.2d 397 (1976), teaches that, “[t]o withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” 429 U.S. at 197 , 97 S.Ct. at 457 . The majority holds that section 228 “was enacted for the purpose of reducing the disparity between the economic conditions of men and women caused by the historic discrimination against women,” and that this purpose should be held constitutional as serving important governmental objectives. See Califano v. Webster, 430 U.S. 313 , 97 S.Ct. 1192 , 51 L.Ed.2d 360 (1977). I believe, however, that the legislative history demonstrates *552 that section 228 was not passed to remedy any past economic discrimination against women, but rather was enacted because Congress believed at that time that women would leave the work force earlier than men. Because section 228 is “benign” in purpose and effect on women and the discrimination against men is incidental to the overall important governmental objectives, I would hold the statute constitutional.
The legislative history demonstrates that section 228 was passed to provide retirement benefits to women at an earlier age than men because studies undertaken at the time of its passage and Congressional testimony indicated that women left the work force earlier than men. Whether women, in fact, left the work force because of discrimination or any other factor, or whether the studies and testimony were accurate, is irrelevant to our review of the statute, for Congress could have fairly and legitimately believed such evidence and, in response, properly provided benefits for women unavailable to men. As pointed out by the majority, .that Congress has now repealed section 228 only indicates that once the underlying basis for the law disappeared, Congress terminated the law.
This case thus falls squarely within the rule of Schlesinger v. Ballard, 419 U.S. 498 , 95 S.Ct. 572 , 42 L.Ed.2d 610 (1975), and Kahn v. Shevin, 416 U.S. 351 , 94 S.Ct. 1734 , 40 L.Ed.2d 189 (1974), which rejected challenges by men of statutes enacted to redress perceived imbalances in the opportunities provided for men and women. Unlike Weinberger v. Weisenfeld, 420 U.S. 636 , 95 S.Ct. 1225 , 43 L.Ed.2d 514 (1975), in which a gender-based generalization perniciously denigrated the efforts and earnings of women thereby depriving them of the protection which men received as a result of their employment, this statute serves a benign purpose and is reasonably designed to further Congressional policy to reduce the adverse effects on women caused by their earlier separation than men from the work force. Coupled with the district court’s finding of historical discrimination against women in the railroad profession, I believe the statute is constitutional.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9700466. Public record. Not legal advice.