# Brief for the United States — Phillips v. Martin Marietta Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1475%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1971 - **Citation:** 400 U.S. 542 ## Text - * ‘i . . _ . . an ’ ae . . Opinions lie : en aesn tre Pa ec Aind Jurisdiction -......... Leantceieonsseslesaninshntiientaaiaieoane ile: Pinel Question presented ......... Sie wicospocmveelbcaere can apaunate Mae AVON WOE nei sa cshieeteeecttcioonens aR ae SA MY He — Statement FORE R Romar ke eek ie han sionte aa Introduction and summary of argument ....:...............-... TTR ERT ER MR TES TUL Tier ant We Se CIO: icici cdoncessneene gee es Paar We a ‘AUTHORITIES CITED Cases: A. H. Phillips, Inc. v. Walling, 324 US. 490 i... ; Anderson V. Martin, 375 U.S. 399 -......----.-----2 at Bowe Vv. Colgate-Palmolive Co., 416 F.2d 711 _..... ‘. Carrington Vv. Rash, 380 U.S. 89 ...........2222.-..--4--- Cheatwood v: South Central Bell Telephone Co., , Se a Fe anid kt cements Gaston County v. United States, 395 U.S. 285... Goss Vv. Board of Education, 373: U.S. 688 ............. Griggs v. Duke Power Co., C.A. 4, No. 18, 013, de- Pg eR eM kh IRE Guinn V. United States, 238 U.S. |, eae! pC ae 8 | Sees ene Lane V. Wilson, 307 U.S. 268 -...........2.-22c-c-coceteceneeee Lansdale v.- United Air Lines, 62 Lab. Cas. .* SRS . inns hckacoeateicenatcua cabernet en ee eee Lewis Vv. Martin, No. 829, ’ this Term, decided April 20, Mpc ila remanent 2 ' Local 53, International Assoclation. of Heat and Frost Insulators‘v. Vogler, 407 F.2d 1047......... Local ‘189, Papermakers and Paperworkers V. United States, 416 F.2d 980, certiorari denied, February 24, 1970, No.-1015, this Term ......... Louisiana Vv. United’ States, 380: U.S. 145 .............. ‘National Labor Relations Board v. Hearst Publi- cations, $22 U.S. 111-............. Ae eHE at ay: SPOR > woe pe cia amen Reatianal me int i : - Page _ Robinson Vv. Florida, DIR Ge SOO: tim tecwn: BP Rosenfeld Vv. Southern Pacific Co., 293 F. Supp. , je ER Oe CART ETE pee Pages: S| Sprogis v. United Air Lines, 62 mt Cas. 1 9399. 12 Udall V.- Fallen, BOO TB, Yaga ioins wines atensedcccoicecens 13 United States v. Correll,.389 ee eae - 13 United States v. Sheet Metal Workers, 416 F.2d _ -128 .. x = 13. | Weeks -v. Southern Bell Telephone Co. 408 F.2d a. _- _ SEDTOO, TERN TOES PTE DN MeN Coen we . 10, 11 Statutes: fh eee: Stas Goaeee Civil Rights Act of 1964, Title VIL, Siction 708, °.:. ‘ an | ee dee ee -_.2, 3, 4, 6, 8, 10, i}, 12, 13° \ 42 U.S.C. 2000e-2 (a) (1)— pane sacar eee 2,10, 138-- \ 42 U.S.C. 2000e-2(e) (1) 2... sn, 8;'90, 11, 18 Equal Pay Act of 1963, 29 U.S.C. 206(d) ....... 105 Miscellaneous: | Baad | 110 Cong. Rec. 2582 -.... A El Ren hes OE ee 9 110 Cong. Rec. 2583 ...... eee AP RET oc Since eRe 9 Me eR en eee nen a 110 Cong. Rec. 7218 22... Vea ot Selene 10 110° Cong. Rec. 13837-13838 A RRC N rR a Equal Employment Opportunity Comm., “Guide- _ lines on Discrimination Because of Sex”, 29°.’ Cre 6610 18 - marae ae H. Rep. No. 914, 88th Cong., Ist Sess. 0.0... 10 President Nixon’s Address to the Nation on Do- aa mestic Programs, Weekly Compilation of Presi- dential Documents, Vol. 5, No. 82, August . on BO A UE ne et me Who are the Working Mothers?, U.S. Dept. of Labor, Wage And Labor Standards Adm., Wo- ~ — men’s Bureau .(Leaflet 37, revised January; ‘ ae. penne Lite Mamiuascoiatere esipecteacetscopenteticntamsecs “11 e 70 . > é » t~ %s ; . , . A a ” . ” . , ~ , * . : . e a ”. - a . th the Supreme Court of the Huited States —— TERM, 1969 ~ P i No. 1058 IDA PHILLIPS, PETITIONER — v. > Marin] came ConPoRaTION ten ON WRIT OF CERTIORARI TQ THE UNITED STATES , COURT OF APPEALS FOR THE ' FIFTH, CIRCUIT ee ‘ - BRIEF FOR THE UNITED STATES AS AMICUS CURIAE ” - OPINIONS BELOW :_ _ The opinion of the court of appeals (A. 30a-38a) is reported at 411 F.2d 1. That court’s denial of* rehearing and rehearing en banc, with three judges — dissenting (A. 42a-52a), is reported at 416 F.2d 1257. The opinion of the district court: (A. 22a-23a) is . not reported.. J URISDICTION The judgment of the court of ‘appeals (A. 39a) ce was entered on May 26, 1969. Timely petitions for ee mere ; oo » ; 7 ee he rehadeiann and reheating en bane were denied on. _ October 13; 1969 (A. 42a-43a). The. petition for a writ of certiorari was filed on January 10, 1970, A and granted on March 2; 1970 (A. 55a). The juris- '. diction of. this Court rests upon 28 U. 8. C. 1254(1).° oe QUESTION PRESENTED Whether, ‘ander Title VII of the Civil. Richts Act . of 1964, an_employer may, in the absence of business oe necessity, refuse to hire women with pre-school age children while hiring men with such childrep. | STATUTE INVOLVED Section 703 of Title vil of the. Civil ee Act an of 1964, provides in pertinent part: . 42: U.S.C. 20000-2. | (a) It shall be an sininwrful employment prac- tice for an employer— . . (1) to fail or refuse to hire or to Aihint “any individual, or otherwise to discriminate - against any individual with respect to, his _.. compensation, terms, conditions, or. privi- . leges of employment, because of- such’ indi- vidual’s race, color, ict aia Sex, or na- tional origin * * *. : © * th * “ * ae e) Notwithstanding any other provision: of this | title, (1). it shall not be an unlawful employ- “ment practice for an employer to hire and em- Ploy. employees, * * * on the basis of his reli- ' gion, sex, or national origin in those certain. “instances where religion, sex, or national origin —e . ably necessary to the’ normal operation of that particular business or enterprise * * *. STATE MEN a On ‘Sense 6, 1966, sikithigiee 3 as denied em- ployment as an assembly trainee by the respondent * corporation | solely ° because she was a woman with pre-school age children .(A. 8a-da, 16a- 17a). She filed a charge of diser imination with the Equal Em- ployment Opportunity Commission, and,’on July 14, 1967; the Commission | found reasonable cause: to be- lieve that the respondent had “violat{d Title VII of the Civil Rights Act of 1964 by its¥efusal to consider | a woman ‘with pre-school age’ Children for. employ- ment” (A, 10a). -On November) 9, 1967, the: Com- ‘mission notified petitioner that its conciliation efforts had failed to.achieve voluntary compliance (A. 1la- 12a). Petitioner .then brought the ‘present, suit. to enforce her rights under Title VII. For purposes ‘of ruling on the respondent’s motion for summary judgment; the district court assumed that respondent “does employ males with pre-school age children’ in the position of Assembly Trainee” (A, 23a). But the court eliminated the essence of the petitioner’s complaint by striking, as beyond the reach of the statute, the allegation of discrimination ‘directed particularly against mothers with pre-school — age children (A. 22a). Thus viewing the complaint as simply alleging discrimination based solely:on sex, the court granted the regpondent’s ‘motion. for sum-. mary judgment, on the basis of an uncontroverted’ - is a bona. ‘fide’ occupational (qualification reason- _ ae — 4 showing that a larger percentage of the women, as ° compared with the men, who applied for the position of. bcs d trainees were hired. of appeals affirmed, stating (A. 36a): * * * The evidence prese nted i in the trial court is quite convincing that no ‘discrimination against women as a whole of the appellant individually was practiced by Martin Marietta. The discrim- ination was based on a two-pr onged qualifica- tion, ie., a woman with pre-school age children. Ida Phillips was not refused employment because |. _ she was a’ woman nor beeause she had pre-schtol’ age children. It is the coalescence of these two elements that denied her’ the position she de- , sired. ,° * ° | , A petition for rehearing was denied (A. 42a-43a), _ with three judges dissenting from the denial of re- hearing en bane (A. 43a-52a). ie i % INTRODUCTION AND SUMMARY OF ARGUMENT — Under the Civil Rights Act of 1964, Congress has ” ‘entrusted the United States Equal Employment Op- portunity Commission and the Attorney General with. important responsibilities for the enforcement of the | -, prohibitions in Title VII of that Act against dis- crimination in employment based on race, color, reli- _ gion, sex or national origin, ‘The holding below— * that an employment practice under which women, but “not men, were required:to be wholly without pre- school age children does not violate the statute’s _ scription against discrimination on epi af sex . —is in conflict with the interpretation statute, ‘a : slap a fo followed’by the Equal Employment Opportunity Com- mission and is contrary to the federal policy of en- couraging unemployed women with pre-school age children to-seek gainful employment as-an alternative to welfare, payments.’ The decision below directly affects a substantial number of women in the labor market, many of whom. are the sole or principal income-producing member. of households with children and thus are among those - in our society least able to afford réstrictions upon their employment Sppertunition? The burden falls ' See, «.g., President EA Address to the Nation on Do- mestic Programs, Weekly Compilation of Presidential Docu- ments, Vol. 5, No. 32, August 11, 1969, p. 1108: As | mentioned previously, gfeatly expgnded day-care center facilities would be provided for the children of welfare mothers who choose to work. However, these would be day-care centers with‘a difference. There is no single idea to which this administration ‘is more’ firmly committed than to the enriching of a child’s first 5 years of life, and thus helping lift the poor out of misery, at a time when a lift can help the most. There- fore, these day-care centers would offer more than cus- todial care; they would also be devoted to the develop- -ment of vigorous young minds and bodies. As a further dividend, the day-care centers warld offer employment to many- welfare mothers themsclves, ° Moreover, as principal financial contributor t® the Aid to .*Families with Dependent Childreti Program administered by the State’ under the Social Security Act (as well asin its role as tax collector), the United States has a fiscal interest in the conseqhences of this litigation. See King v. Smith, 392 U.S. 309; Lewis v. Martin, No. 829, this Term, decided April 20, 1970. *In March 1968, fourteen percent (4.1 milion) of all women in the labor market were mothers with children un- a . . ° . heaviest among Negroes and other non-whites.’ More- over, application to the prohibitions in Title VII against discrimination based on race, color, religion, or national origin of the rationale adopted by the court of appeals* would comprehensively limit the Act’s effectiveness in insuring equality of employ- ‘ - ment- opportunities for all persons in the United States. Under this reasoning, the Act would, for ex- ample, have no application to discrimination against Catholics with children, or against Scandinavians with education beyond the sixth grade. ‘The holding of thé court of appeals that employ- ment qualifications not required of men can be im- - posed on: women, without the justification of busi- . ness necessity, is contrary to both the language and the legislative history of Title VII. To require of prospective women employees that they not have pre- school age children, while not requiring the same of men, is to discriminate against women on the basis der six years of age. Of this number, 33 percent were either heads of their househelds or had husbands whose incomes wére below. $5,000 in 1967. Who Are the Working Moth- ers?, US. Department of Labor, Wage and Labor Stand- ards Adm., Women’s Bureau (Leaflet 37, revised January, 1970). . ‘ *Among all non-white mothers with children under six years of age, a larger percentage worked. (45 percent). than did white mothers with such children (27 percent). Ibid. A revision of this leaflet to be published in May 1970 will - show gubstantjally the same figures as of March 1969 as those used here and in note 2, supra. *“When another criterion of employment is added to one of the classifications listed in the Act, there is no longer apparent discrimination based solely on race, color, religion, sex, or national —. (A. 35a). 7 7 of sex in the es or “conditions” they must meet — to be employed—which is precisely what the Act in terms forbids, in the absence of a showing of over- riding business necessity. ' _ “ARGUMENT — The summary judgment in this case was based on the factual prémise that the. respondent excludes women, but not men, with. pre-school age children from employment as assembly trainees, and that it - does’so without regard or inquiry as to whether the individual women~-affected are capable of regular attendance er are otherwise able satisfactorily to perform the work required/ No evidence was offered to establish that this hiri#fg practice-was predicated. on any legitimate business consideration related to the ability of such women to perform the work, or to the safety and efficiency of the respondent’s busi- ness operations. Specifically, there was no showing that such women as a class had a higher than’ aver-_ age absentee rate, fhat they could not work. certain shifts or necessary overtime, or that they had any other attribute which limited their utility to the re- spondent, Much less did respondent show that- all women with pre-school age children were unable to perform adequately. ‘ The courts below,, therefore, did’ not ‘rely on any “overriding business necessity,”* and thus did not invoke the statutory exception for a “bona fide occu- * See Local 189, United Papermakers and Paperworkers v. United States, 416 F.2d 980, 989 (C.A. 5), certiorari denied, February 24, 1970, No. 1015, this Term. see s 8 : ; pational qualification,” * in holding that the respond- - ent’s hiring policy did not violate Title VII. Instead, the court of appeals’ holding is explicitly based on a constru¢tion of the statute which condones discrim- ination on the basis of sex so long as there is an addi- tional, apparently neutral, reason for the otherwise unlawful employment practice. ’ his holding contravenes. the plain language of Section 703 which makes it an “unlawful employment practice for an employer * * * to fail or refuse to. ‘hire * * * or otherwise to discriminate against any individual with respect to his * * * terms [or| condi- : tions *** * of employment, because of such individ-’ ual’s race, color, religion, ‘sex, or national origin -. * * *” To require of prospective women employees ‘ that they not have pre-school age children, while not _ requiring the same of men, is to “refuse to hire” oh the basis of sex and constitutes diser imination against “women in the “terms” or “eonditions” _ they must’ meet to be employed. The fact that seme women; even if the number is substantial, have met this “term”. or “condition” does not elimi- . nate the disparate treatment received by those women . who de not met this qualification which is not required of men. So long as sex determines to. whom an employment qualification is applied, the | ' qualification is a form of employment discrimination based on ‘sex which is proscribed, by the Act unless ‘justified as a “bona fide occupational qualification.” Cf. Lane v. Wilson, 307 U.S. 268; Goss v. Board of Education, 373 U.S. 683; Robinson v. Florida, 378 ‘US. 153. é Section, 703(e) (1), 42 U.S.C. 2000e-2(e) (1), supra, pp. 2.3, | | ° 9 The, court of .appeals’ contrary holding—that “[a] . per se violation of the Act can only be discrimination . ° based solely on one of the [Act’s prohibited] cate- gories” (A. 35a)—is also refuted by the Act’s legis- lative history. The Senate, by a roll call vote, specifi- . eally rejected a proposed amendment which would have inserted the word “solely”. in Title VII prior . to each enumeration of the specifically proscribed categories. 110 Cong. Rec. 13837-13838. In speak- ing against the proposal, Senator Case, a joint floor. manager of Title VII, noted that the “difficulty. with this amendment is that it would render Title VII totally nugatory. *°* * [It] would place upon per- | sons attempting to prove a violation of this section, no matter how ¢lear the violation was, an obstacle so great as to make the title completely worthless.” Id. at 13837.’ Nor is there support in thé legisla- tive history for the court of appeals’ apparent con- clusion that Congress intended to allow employers to, base their employment practices upon unsupported presumptions about.“the differences between the nor-— mal relationships of working fathers and working mothers ‘to their pre-school age children * * *” (A. 37a). Instead, the intent of Congress was to insure women (and others) equal opportunity to obtain and hold employment *—an objective consistent with its 7 See, also, the remarks of Senator Magnuson to the same effect. 110 Cong. Rec. 1383%.. And see the opinion. in this case dissenting from denial of rehearing en banc .(at A. 49a- 52a). @ *See statements of Congresswomen May (110 Cong, Rec. 2582), Kelly (110 Cong. Rec. 2583) and Bolton (110 Cong. Rec. 2720). See, also, Weela v. Southern Bell Telephone eR Bw 7 , ‘3 a: Ee earlier enactment of legislation guaranteeing women _ equal. pay for equal work.’ * The statute provides for exception to the broad mandate of Section 703(a) against sex discrimina- . tion only upon a showing that such an exception con- stitutes a “bona fide occupational qualification” with- _ in the meaning, of Section 703(e)(1). Since Title VII is a humanitarian and remedia) statute serving an important public purpose, such an exception should be narrowly constr ued: See A..H. Phillips, Inc. v. Walling, 324°U.S. 490, 493. Indeed, the court below had previously pointed out that “[t}he legislative history [of Title VII] indicates that this exception Was intended to be, narrowly construed.” Weeks v. Southern. Bell Telephone Co., 408 F.2d 228, 232 (cit-- ing 110 Cong. Ree. 7213 and H. ‘Rep. No. 914, 88th Cong., Ist Sess.). Accordingly,.in order to rely upon this exemption, the respondent in this case would have to prove that all, or substantially all, women with pre-school age children are ener Co., 408 F. 2d 228 (C.A. 5), where, in rejecting wan assertion that it should be permissible to bar women from 2 certain * job classifieation because it occasionally necessitated = hour call-outs,” the court stated (id. at 236): 7? * Tithe V i rejects just this type of romantic pa- ‘ternalism as unduly Victorian and instead vests igdi- vidual women with the, power to decide whether or not to take on unromantic tasks. Men have always had the right to determine whether the incremental increase in remuneration for strenuous, dangergus, -obnoxiops, bor- ing or unromantic tasks is, worth the candle. The prom- ise of Title VII is that. ‘women are now to be on-equal . footing. alia ia , . ‘Equal Pay Act of 1963, 29 U.S.C. 206(4d). 0 A ant il Me Bes 5 hea a ef tall, 11 less able or willing than other employees: to maké - arrangements for the care of their children, or aré otherwise materially less satisfactory in performing * the wor of assembly trainees, so as to justify the total exclusion of such women as (in the words of “Section 703(e)(1)) “reasonably necessary ‘for the normal operation of that particular business or en- terprise.” *° The whole-meaning and purpose of Title . VII is that such women (or any other category of employees limited by race, color, religion, sex, or | national -origin) cannot be barred from employment _ merely on the factually unsupported premise that _ .they as a class are less dependable or efficient em- _ ployees. Instead, the respondent must, in the absence of -proper proof of overriding business necessity, pro-. - vide such women. individually, the same_ opportunity to demonstrate their ability to pérform the job .as ° is provided other employees, including similarly situ- ated men. Bowe v. Colgate-Palmolive Co.,:416° F.2d 711 (C. A. 1); Weeks v. Southern Bell Telephone Co., supra; Rosenfeld v. Southern: ‘Pacific Co., 293 F. Supp. 1219 (C.D. Calif.); Cheatwood v. South Cen- . _ tral Bell Telephone Co., 303 F. Supp. 754 (M.D.. - Ala.). Cf. Carrington v. Rash, 380 U.S. 89, 96. In contrast to the decision below, those above-cited con- ’ Working mothers do make arrangements for the care of their children. In February 1965, 47 percent of sich chil- dren were cared for in their owm homes by other members of the household, 31 percent were cared for in the homes of others, and 6 percent received group care in child-care cen- ‘ters or other similar facilities. Sixteen percent were cared for by other arrangements. Who Are the Working Moth- ers?, U.S: Department of Labor, Wage and, Labor Standards Adm., Women’s Bureau (Leaflet 37, revised January, 1970). See, also, n.1, supra. | a oe form with, and rely upon, ‘the Equal Employment Opportunity. Commission’s published interpretations of Section 703." Since that agency has. been charged’ - -41 The Commission’s “Guidelines on Diserimtination Because of Sex,” 29 C.F.R. § 1604.1(a), state in pertinent part: , (1) The Commission will find that the following situa- tions do not warrant the application of the bona fide occupational qualification exception: characteristics of women in general. For example, the assumption that the turnover rate among women is. ' higher than among men. (ii) The refusal to hire an individual based on stereo- - typed characterizations of the sexes. * * * The principle of non-discrimination requires, that individuals be con- sidered on the basis of individual capacities and not on ~ the hasis of any character istics generally attributed to the group. ° aa Moreover, at 29 C. F.R. ig 1604.3 (a), the ‘Commission spe-' ‘cifically addressed itself to discrimination against married women: as follows: (a) The Commission has determined that an em- ployer’s-rule which forbids or restricts the employment of married women and which is not, applicable to mar-: / ried men is‘a dis¢rimination _based on sex prohibited orf. Title VII of the Civil Rights Act. It does not seem to /’ us relevant that the rule ‘is not directed. against all fes_ males, but only against. married females, for so lorig as- ‘ sex is a factor in the application of the rule, such ap- , plication involves a discrimination based’on sex. In Sprogis v.'United Air Lines, 62 Lab. Cas. 7 9399 (N.D. Ill., January 21, 1970), this ‘rationale was applied to an em- ployer’s practice of firing fgmale stewardesses, but not male stewards, who married. Within the Fifth Circuit, however, ‘a. contrary result was reached on the same facts because of the decision. below. Lansdale vy. United Air Lines; 62 Lab. Cas. 7 9417 (S.D. Fla.’ December , 4 1969). (i) The refusal to hire a woman because of her sex, - - based -on assumptions of the comparative employment . 13 by Congress with the primary responsibility for the administration of Title VII, its interpretations of - the statute are of course entitled to deference. See United ‘States v: Correll, 389. U.S. -299, 306-307; Udall v. Tallman, 380 U.S. 1, 16; NLRB. v. Hearst | Publications). 322 U.S. 111. Title VII forbids the imposition of any. term or condition of employment which adversely affects an individual on the basis of his race. United States v. Sheet Metal Workers - International Association, 416° F.2d 123 (C.A! 8); Griggs v. Duk& Power 'Co., C.A. A, No. 13,013, decided, January 9, 1970; Local 53, International Association of Heat and. Frost’ Insy- lators v, Vogler, 407 F.2d 1047 (C.A.‘5); Local 189, United Papermakers and Paperworkers v. United . _ States, 416 F.2d 980 (C.A. 5).%. An employer’s re-. .. fusal’to hire otherwise qualified Negroes with pre- school age children, while hiring whites with such children, is obviously proscribed. Since Section 703 (a)(1) (supra, p, 2) textually affords the same __ protection against discrimination. in employment whether based on sex or race, the respondent’s hir- ing practice here ‘is equally prohibited in the absence of proof of an overriding business necessity (Section '703(e) (1), supra, pp. 2-3). To hold otherwise would . be to deny the Act’s protection to some of the em-. ployment —- most in need of: that protection. ~ This principle ‘thes from this Cit Fourteenth and Fifteenth Amendment cases. : See, ¢.g., Guinn Vv. United States, 238 U.S. 347; Lane v. Wilson, supra; Anderson Vv. Martin, 375 U.S. 399; Louisiana v. United States, 380 U.S. "145; Gaston County v. United States, 395 U.S. 285. RAE? i OEE R hae 6, Ma | 14 =, Rear near a ‘CONCLUSION For the. toregoitié reasons, the ‘ailianant ‘digi me, be reversed. and the case remanded. for further pro- _ ceedings. ) : Respectfully submitted. "Erwin N. GriswoLp, ~ ° _- Solicitor General. ' JERRIS LEONARD, _ Assistant Attorney. General. LAWRENCE G. ‘WALLACE, Assistant to the Solicitor. General. ¢ , - .. ROBERT T.. Moore,” | : Attorney. ‘STANLEY P. HEBERT, ‘. General-Counsel, a wie schiaciataat Opportunity Commission. April. 1970. - e ‘ . 4 . . ‘ e . @ . —@°? ee . *; . . s . . - . \ - ¢ e- . é. . . . ’ 4 ~~ : “<4 \ x « - - 4 ° . . . aes > . . . . M . . . . oe a 6 . ~ . . . . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1475%3A08. Public record. Not legal advice.