# Petition — City of Los Angeles Department of Water v. Manhart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2193%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 702 ## Text IN THE Supreme Court of the United 5 October Term, 1976 a ee ae 76-1810 CITY OF LOS ANGELES, DEPARTMENT OF WATER AND POWER, a body corporate and politic; MEMBERS OF THE BOARD OF WATER AND POWER COMMISSIONERS OF THE DEPARTMENT OF WATER AND POWER, CITY OF LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN- ISTRATION OF THE DEPARTMENT OF WATER AND POWER EMPLOYEES’ RETIREMENT, DISABILITY AND DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD- KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- LER; MICHAEL GLAZER. HERBERT C. WARD; LOUIS J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. Petitioners, vs. MARIE MANHART, CAROLYN MAYSHACK, MARGERIE STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in- dividually and on behalf of all other persons similarly situated; COMMITTEE TO PROTECT WOMEN’S RETIREMENT BENEFITS; and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 18, Respondents. Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. BURT PINES, City Attorney, EDWARD C. FARRELL, Chief Assistant City Attorney for Water and Power, J. DAVID HANSON, Deputy City Attorney, DAVID J. OLIPHANT, Deputy City Aitorney, By DAVID J. OLIPHANT, Deputy City Attorney, Me North pm Fog 2 obese, Box 111, pag cine = ob Defendants-A ppellees. Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622 SUBJECT INDEX Page Citations to Opinions Below .................-.....---0--00++- 2 SII: = sicllacbidcindlsiencltecinsiohaciiestiitaiaeplitcnnihitindesiteiilaga 3 NE BN © ciasncstiiatapsiiniinniinsintaciasdlaclabecteisaiidtii 3 Statutes and Rules Involved ......................2...c---00000+0 4 SE Sete I III saeliticenintecicieshsescecsicpsacnicaesiobtpstihaiandlon 4 Reasons for Granting the Writ -........................--....- 9 I. The Court of Appeals Decided This Federal Question in Direct Conflict With the Su- preme Court’s Decision in General Electric ae i EE deccinciectinterinshasitnigeniniiceeieniienne 9 A. The Will of Congress on Pay Differ- IRIEED quality of production, or (iv) a differential based on any other factor other than sex” [29 U.S.C. §206(d) (1)] (Emphasis added). It is the payment differential based on an “other factor other than sex” which Congress thus inserted in both Acts to allow differences in compensation for factors such as pension payment or pension cost dif- ferentials based on different longevity. (See Dissent Op. at App. D-4.) The pertinent legislative history of the Equal Pay Act and Title VII is detailed in Appendix E, and summarized below. 1. Equal Pcy Act. In enacting the Equal Pay Act, The 88th Congress specifically intended that em- ployers might continue to differentiate upon the basis of sex for compensation purposes so long as the clas- sification involved actual or good faith differences as the basis for the differences in pay and was not a mere subterfuge to pay women less. The concept was equal pay for equal work. The House Committee noted, for example, that an employer might pay male pack- agers and female packagers differently where there were real and not merely nominal differences as the basis for the different pay. If the male packagers were required to lift heavy boxes and the female packagers were not, more compensation might be paid to the sale *9ckagers. Previous cases have so understood he ~: cal Pey Act. Schultz v. Wheaton Glass Co., 4Zi _— YY terms, conditions, or privileges of employment, because of such individual’s . . . sex . . .” within the meaning of § 703(a)(1) of the Equal Employment Opportunity Act of 1972. 42 US.C.A. § 2000e-2(a)(1) (West 1974). Several sources of authority support the conclusion that the Department’s practice in question here consti- tutes sexual discrimination under § 703(a)(1). Initially, it should be pointed out that this section applies to retirement plans. Bartmess v. Drewrys USA, Inc., 444 F.2d 1186 (7th Cir. 1971); Rosen v. Public Service Electric & Gas Co., 477 F.2d 90 (3d Cir. 1973). Moreover, current regulations of the Equal Employ- ment Opportunity Commission (EEOC) issued under the authority of § 713 of the Act, 42 US.C.A. § 2000e-12 (West 1974), not only suggest that § 703(a) (1) applies in this case, but also indicate that the Department’s practice gives rise to sexual discrimina- tion. According to these current regulations, “it shall not be a defense under Title VII to a charge of sex discrimination in benefits that the cost of such benefits is greater with respect to one sex than the other,” 29 C.F.R. § 1604.9(e), and “it shall be an unlawful employment practice for an employer to have a pension or retirement plan . . . which differentiates in benefits on the basis of sex.” 29 C.F.R. § 1604.9(f). The EEOC has recently applied these standards to an analogous case in which retired female employees received lower monthly payments under their annuities than their male counterparts. Decision No. 74-118, CCH EEOC Decisions 4 6431 (Employment Practices Guide, 1974). Under the facts of that case, female employees had contributed the same amounts for the = vo annuity benefits as male employees. In rejecting the argument that equalization of monthly payments would discriminate against males, who, as a class, would receive less because they tend to die sooner, and in favor of females, who would receive more because they generally die later, the EEOC stated: A argues that equal payments to female retirees would in fact discriminate in their favor because females, statistically, live longer than men. The logic of this argument is that usually used to support discrimination: an appeal to the average characteristics of a particular sex, race, or other group protected under Title VII. But no person knows when he or she will die. * * * Thus we think that A’s argument misses the point. All that A’s sex-segregated actuarial tables purport to predict is risk spread over a large number of people; the tables do not predict the length of any particular individual's life. In our view, any use of sex-segregated actuarial table that results in payment of different periodic pension benefits to males and females is highly suspect. Because actuarial tables do not predict the length of any individual’s life, any claim that such tables may be used to assure equal pension payments over a lifetime between males and fe- males must fail. In order to achieve compliance with Section 703(a) of Title VII and with the Commission’s Guidelines on Discrimination Be- cause of Sex the periodic pension benefits paid to males and females in equivalent circumstances must be equal. Moreover, it would not be a defense to Charging Party’s charge that equalizing males’ iliiiinn and females’ periodic pension benefits would result in higher costs to Respondents if indeed this were shown to be a fact. Guidelines on Discrimination Because of Sex, 29 CFR Sec. 1604.9(3). See, also, Taylor v. Goodyear Tire & Rubber Co., 5 EPD Para. 8545, 6 FEP Cases 50 (N.D.Ala., 1972). (Footnotes omitted.) EEOC Decision 74-118, pp. 3- 5 As plaintiffs correctly point out, the only difference between the facts of EEOC Decision 74-118 and the facts of the case at bar is that instead of taking equal contributions from both sexes and supplying lower benefits to females, the defendants in the present action take more contributions from females and supply equal benefits to both sexes. In either case, the reason for this differential treatment is the actuarial fact of female longevity which, in effect, involves the application oi characteristics that may be true of a class of people to individuals within the class fur which the characteri- zation May or may not be true. Therefore, EEOC Decision 74-118 is directly applicable to the present case, and dictates a finding of sexual discrimination here. As such, it is entitled to great deference in this court. Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). The conclusion that the defendants’ differential treat- ment of female employees violates § 703(a)(1) is supported by a recent Harvard Law Review comment, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1172-1176 (1971). In its discussion of discrimination based on statistical differences and life insurance benefit pro- ailtiiiinn grams, the comment takes the position that employers must provide the same life insurance benefits to male and female employees even though employers must pay higher premiums for males than for females due to actuarial female longevity. The comment reaches this conclusion because “Title VII, in the field of employment, requires evaluation on an individual basis rather than a prediction made on the basis of a sex- defined group,” and because “Title VII focuses on presenting each employee in an individual light, free from conclusions that may be drawn from the individ- ual’s membership in one sex or the other.” 84 Harv.L. Rev. at 1174. The basic principle which emerges from these authori- ties and from the case law is that sexual discrimination under § 703(a)(1) exists whenever general fact charac- teristics of a sex-defined class are automatically applied to an individual within that class. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971); Sprogis v. United Air Lines, 444 F.2d 1194 (7th Cir. 1971); Willingham v. Macon Telegraph Publishing Co., 482 F.2d 535 (Sth Cir. 1973). In passing Title VII, Congress estab- lished a policy that each person must be treated as an individual and not on the basis of characteristics generally, and often falsely, attributed to any racial, religious, or sex group. See Rosenfeld v. Southern Pacif- ic Co., supra 444 F.2d at 1225. More particularly, Congress intended in regard to sexual discrimination cases to strike at the entire spectrum of disparate treatment of individual men and women resulting from sex stereotypes. Sprogis v. United Air Lines, Inc., supra 444 F.2d at 1198. In short, under the Equal Employ- = * = ment Opportunity Act of 1972, all stereotypic treatment of persons based on race, religion, or sex whether rational or irrational is dead. Because the Department of Water and Power’s practice in question here violates these considerations by applying the general actuarial characteristic of female longevity to individual female employees who in reality may or may not outlive individual male employees, the court concludes that plaintiffs have established a case of discrimination under § 703(a)(1) of the Equai Employment Opportunity , Act. Defendants attempt to establish a defense under § 703(h) of the Equal Employment Opportunity Act of 1972. 42 U.S.C.A. § 2000e-2(h) (West 1974). This section states in part that “it shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of wages or compensa- tion paid or to be paid to employees . . . if such differentiation is authorizec by the provisions of section 206(d) of Title 29.” Section 206(d) states in part that “no employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work . . . except where such payment is made .. . (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.” 29 U.S.C.A. § 206(d) (1). Defendants fail to explain how § 206(d)(1) justifies higher retirement contributions for women. Instead, alive they cite § 703(h) and immediately refer to 29 C.F.R. § 800.116(d), a regulation of the Wage-Hour Adminis- trator which implies that segregated actuarial treatment of men and women does not violate the Equal Pay Act. Even if § 206(d)(1) applies to this case, the court believes that differentiation based on sex segre- gated actuarial tables constitutes a differential based on the “factor” of sex in violation of that section. The court also concludes that the other elements necessary to support a preliminary injunction are pres- ent in this case. Where statutory civil rights of em- ployees are found to have been violated, irreparable injury may be presumed from loss of human dignity which such violations engender. See United States v. Hayes International Corp., 415 F.2d 1038, 1045 (Sth Cir. 1969). Moreover, as plaintiffs’ affidavits suggest, the potential for irreparable injury is great in that we deal with the present ability of female employees to provide the necessities of life for them- selves and their families. Finally, the very subject of this action, sexual discrimination, and the number of persons affected by the Department’s practice, supports the conclusion that a preliminary injunction would serve the public interest.’ Accordingly, it is ordered that plaintiffs’ motion for a preliminary injunction is granted. It is further ordered that this Memorandum and Order shall constitute the court’s findings of fact and While this opinion was in draft form, the court was noti- fied by defendants in a copy of a letter dated December 26, 1974 that the Department of Water and Power and the Board of Administration of the Department of Water and Power Employees Retirement Plan had adopted a resolution on Decem- ber 23. 1974, equalizing male and female contributions to the Retirement Plana. onlin conclusions of law as authorized by Rule 52 of the Federal Rules of Civil Procedure. It is further ordered that the Clerk of the Court shall serve copies of this Memorandum and Order, by United States mail, upon the attorneys of record for the parties herein. Findings of Fact. It is true that: 1. The plaintiffs, Carolyn Mayshack, Margerie Stoop, Alice F. Muller and Ethel L. Lehman, are employees of the defendant, Department of Water and Power of the City of Los Angeles (“Department”). The plaintiff, Marie Manhart, is a former employee of the Department. The plaintiff, Committee to Protect Women’s Retirement Benefits, is an association of fe- male, supervisory employees of the Department. The plaintiff, International Brotherhood of Electrical Work- ers, Local Union No. 18 (“Union”), is an unincorpo- rated labor organization, whose members include certain women who are employed by the Department. 2. The defendant, Department of Water and Power of the City of Los Angeles, employs approximately 2,000 females. The defendant, Board of Commissioners of the Department of Water and Power, directs the affairs of the Departm ~.. The defendant, Board of Administration of the Department of Water and Power Public Employees’ Retirement, Disability, and Death Benefit Insurance Plan, administers the benefit plans maintained for employees of the Department. 3. The Department maintains a Public Employees’ Retirement, Disability, and Death Benefit Insurance Plan (“Plan”). The Plan is funded by compulsory —B-10— employee contributions which are matched 110% by compulsory employer contributions. The Plan is also funded by earnings on all contributions. 4. Between March 24, 1972 and December 31, 1974, the Plan paid the same monthly benefits to male and female retirants of the same age and length of service. However, higher contributions were required of female employees than males because acturarial tables used in the administration of the Plan indicate that women in general live longer than men and that women would therefore tend to collect monthly pay- ments for a longer period of time. 5. On or about June 5, 1973, the Union filed with the Equal Employment Opportunity Commission (“EEOC”) a charge alleging that the Plan discriminated against females because it required them to contribute more than their male counterparts. The United States Department of Justice issued a notice of right to sue letter on or about September 17, 1973. The plaintiffs filed a complaint in this court on September 26, 1973. 6. The plaintiffs employed legal counsel, who ren- dered valuable services to the classes in the litigation of the issues presented in this case. 7. On April 5, 1972, the EEOC amended its regula- tions to state: “It shall not be a defense under Title [VII] to a charge of sex discrimination in benefits that the cost of such benefits is greater with respect to one sex than the other.” 29 C.F.R. 1604.9(e). The following Conclusions of Law, insofar as they may be considered Findings of Fact, are so found by this court to be true in all respects. —— ee —B-11— Conclusions of Law. 1. The court has jurisdiction of the plaintiffs’ action which was brought pursuant to Section 706(f) of Title VII of the Equal Employment Opportunity Act of 1972 (“Act”) (42 U.S.C. § 2000e-5(f) ). 2. The plaintiff Union filed a timely charge with the EEOC. After receiving a notice of right to sue letter from the United States Department of Justice, the plaintiffs filed a timely complaint in this court. The plaintiffs have satisfied the jurisdictional prerequi- sites of the Act for bringing suit in this court. 3. The Department is an employer within the mean- ing of Section 701(b) of the Act (42 U.S.C. §2000e (b)). 4. With respect to the cause of action brought under Title VII of the Act, on January 25, 1974, the court certified classes which included (a) all female employees presently working for the Department who are members of the Plan, (b) all female members of the Plan who retired from the active service with the Department on or after March 24, 1972, (c) all female employees who resigned from active service with the Department on or after March 24, 1972 and who left their compulsory employee contributions on deposit with the Plan, and (d) all women hired by the Departr:ent who became members of the Plan prior to the resolution of this action. 5. The Department’s practice of requiring females to make larger monthly contributions to the Plan than their male counterparts is an unlawful employment practice within the meaning of Section 701(a)(1) of the Act (42 U.S.C. § 2000e-2(a)) and no defenses —B-12— under Section 703(e) and (h) of the Act have been stated (42 U.S.C. § 2000e-2(e), (h)). 6. The Eleventh Amendment to the United States Constitution does not bar a money recovery against the defendants in this action. 7. The defendants should have been placed on notice that their practice of differential contributions constituted an unlawful employment practice under Sec- tion 701(a)(1) of the Act when the EEOC amended its regulations on April 5, 1972 to include what is now 29 C.F.R. 1604.9(e). 8. Under Section 706(g) of the Act, each meraber of the classes defined in Paragraph 4 of these Con- clusions of Law is entitled to a refund me “ed by the difference between the contributions s as re- quired to make on and after April 5, 1972 and the contributions required of a male who entered the service of the Department at the same age, and on the same date, and earned the same rate of pay throughout his service as the female member of the class. In addition, each member of the class is entitled to interest at seven percent (7%) on her overpayments running from the date of contribution. 9. Counsel for the plaintiffs are entitled by Section 706(k) of the Act (42 U.S.C. § 2000e-5(k)) to reasonable attorneys’ fees payable by the defendants. Dated: June 20, 1975. HARRY PREGERSON Harry Pregerson United States District Judge — 1 APPENDIX C. Opinion of the Court of Appeals for the Ninth Circuit. (Amended: December 23, 1976) United States Court of Appeals, for the Ninth Cir- cuit. Marie Manhart, et al., Plaintiffs-Appellees, vs. City of Los Angeles, Department of Water and Power, a body corporate and politic, et al., Defendants-Appel- lants. No. 75-2729, No. 75-2807, No. 75-2905. [November 23, 1976] Appeal from the United States District Court for the Central District of California Before: CHAMBERS, DUNIWAY and KILKENNY, Circuit Judges DUNIWAY, Circuit Judge: The question presented in this case is whether a retirement plan which requires women employees to contribute from their wages 15% more than similarly situated male employees because of the longer average life expectancy of women violates the Civil Rights Act of 1964, Title VII, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-2. The district court held that the plan violated Title VII,’ enjoined the employer from charging the 1The relevant provision of Title VII reads: § 2000e-2 (a) It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or priv- = of employment, because of such individual’s race, or, religion, sex, or national origin. -_ . e higher contribution rate against women, and awarded a refund of all excess contributions made on or after April 5, 1972. Manhart v. City of Los Angeles, De- partment of Water and Power, C.D. Cal., 1975, 387 F.Supp. 980. This is a class action brought by women employees and retirees of the City of Los Angeles, Department of Water and Power [hereinafter “Department”]. The defendants are the Department, the members of the Board of Commissioners of the Department, the mem- bers of the Board of Administration of the Department’s Employees’ Retirernent, Disability, and Death Benefit Insurance Plan, the Department’s chief accounting offi- cer, and the Department’s general manager. All employees of the Department are required to participate in the established retirement plan which is funded and managed solely within the Department. Each employee must make a monthly contribution to the retirement plan, and the Department matches that contribution 110%. These funds are deposited with the city treasurer but are kept separate and apart from all other monies of the city. The chief accounting employee of the Department is the only person au- thorized to withdraw money from the retirement ac- count. The aspect of this program which gives rise to this case is that women employees are required to contribute approximately 15% more than men employees who are identically situated. The Department’s justification is that because women get the same monthly benefits upon retiring and because, on the average, they live approximately five years longer, they must, as a group, contribute more. ~~ _— In June of 1973, the International Brotherhood of Electrical Workers, Local #18, representing the named plaintiffs, filed a charge with the Equal Employment Opportunity Commission [EEOC] alleging that the higher contribution requirement for women was sex discrimination in violation of the Civil Rights Acts of 1871 and 1964. The United States Department of Justice issued a Notice of Right to Sue letter in September of 1973, and this action was filed during that same month. In their second amended complaint, filed on July 18, 1974, the plaintiffs stated four separate claims for relief, each of which, however, was based upon the same set of facts. The first claim was based upon Title VII, the second upon the Civil Rights Act of 1871, 42 U.S.C. § 1983, the third upon the Fourteenth Amendment to the Constitution, and the fourth, a pendent claim, upon Article 1, §§ 1 and 21, of the Constitution of California. The plaintiffs’ first amended complaint had also as- serted claims resting on the same four theories, but had not set them up as separate claims. On March 26, 1974, the court granted in part and denied in part the defendants’ motion to dismiss. It granted the motion of the Department, the two boards, and their members in their capacities as members, to dismiss the claim that was based upon 42 U.S.C. § 1983, on the ground that the Department and the Board are not “persons” within the meaning of that section. It denied the motion of the Board members in their individual capacities to dismiss the § 1983 claim, hold- ing that they are “persons,” and that they are not immune from suit under § 1983. It granted the motion Ye of all defendants to dismiss the § 1983 claim insofar as any of it accrued more than three years before the action was filed on September 26, 1973. It denied the motion to dismiss the Title VII claim, except that it granted the motion as to any claim arising before March 24, 1972. It dismissed the claim under the California Constitution. It did not rule on the claim under the Fourteenth Amendment. And it allowed 20 days for the filing of a second amended complaint. After the second amended complaint was filed, no motion was made by any of the defendants to strike or otherwise dispose of those of the allegations that were inconsistent with the court’s order of March 26, 1974. On June 20, 1975, the court granted the plaintiffs’ motion for summary judgment, holding that the plan violated Title VII. On the same day it entered a judgment, declaring that the plan, insofar as it requires larger contributions from female employees than from their male counterparts, violates Title VII, and specifi- cally § 701(a)(1) (42 U.S.C. § 2000e-2(a)). The judgment also enjoins requiring larger contributions from females and orders that the Department refund the excess contributions collected on and after April 5, 1972, plus interest at 7%, and that defendants pay counsel for plaintiffs’ reasonable attorneys’ fees. The judgment says nothing about the claims based on § 1983, the Fourteenth Amendment, or the Califor- nia Constitution. On July 7, 1975, the defendants appealed from the judgment. This appeal is our No. 75-2729. On July 11, 1975, the plaintiffs appealed from “that portion of the judgment . . . which denies relief to the plaintiffs _ va based on the causes of action and defendants dismissed by the Court in its Order Granting and Denying in Part Defendants Motion to Dismiss, entered on or about March 26, 1974.” This appeal is our No. 75- 2807. On July 17, the district judge denied a motion by the defendants for a stay of the judgment. They appealed on July 30, 1975. This is our No. 75-2905. We later entered an order staying the judgment pending appeal, insofar as it requires the refund of contributions. After oral argument before us, and in response to an inquiry from the bench, counsel for plaintiffs stipu- lated, and we ordered, that the plaintiffs “have hereto- fore abandoned all claims under 42 U.S.C. § 1983 against individual officials in their individual capaci- ties.” I. Our Jurisdiction. A. No. 75-2729. The judgment of J: ae 20, 1975, embodies an injunc- tion against requiring large. contributions from women than from men, and requiring restitution of excess contributions previously paid. As an injunction, it is appealable under 28 U.S.C. § 1292(a)(1). It is not appealable as a final judgment under 28 U.S.C. § 1291. It does not dispose of any claim except the claim under Title VII. It runs only against the defend- ants, the Department, the two Boards, and their mem- bers as such, but not the defendant members individual- ly. It says nothing about the claims or defendants dismissed in the district court’s order of March 26, 1974. There is no “express determination that there is no just reason for delay” nor “express direction for the entry of judgment.” (F. R. Civ. P. 54(b)). —C-6— B. No. 75-2807. We have no jurisdiction of this appeal. The judg- ment does not do what the notice of appeal says that it does. The order of March 26, 1974, was inier- locutory. It did not purport to determine any issue finally. It permitted amendment of the complaint, and the amendment restated, separately, all of the claims asserted but commingled in the original complaint. The plaintiffs were entitled to amend as they did, and the defendants, to protect their record, should have called to the attention of the court the fact that the amended complaint did not fully comply with the court’s order of March 26, 1974. The court was not required to reconsider that order but the defendants should have at least suggested that it embody in its subsequent judgment the decision that it made in its March 26, 1974, order, thus disposing of the plaintiffs’ claims. The claims remain pending because the judg- ment does not dispose of them. We have no jurisdic- tion in No. 75-2807. It is no answer to say that the plaintiffs have volun- tarily abandoned their claims under 42 U.S.C. § 1983 against the individual defendants. That abandonment binds the plaintiffs, but it does not affect their claims against the Department and its Boards and their mem- bers and employees in their official capacities under § 1983. Those claims are still pending in the district court and are not properly before us. C. No. 75-2905. Because we have granted a stay, and because we are now affirming the judgment in No. 75-2729, this appeal is moot. _.. Il. The Merits of the Judgment. The basis of the defendants’ appeal is that, while requiring women to make larger contributions discrimi- nates against women, there is a sound basis for the requirement, making it a discrimination based on lon- gevity, not sex, and therefore not the kind of invidious discrimination that Title VII was intended to abol- ish. We disagree. It is undisputed that the overriding purpose of Title VII is to require employers to treat each employee (or prospective employee) as an individual, and to make job related decisions about each employee on the basis of relevant individual characteristics, so that the employee’s membership in a racial, ethnic, religious, or sexual group is irrelevant to the decisions. See Griggs v. Duke Power Co., 1971, 401 U.S. 424, 436. To require every individual woman to contribute 15% more into the retirement fund than her male counterpart must contribute because women “voi the average” live longer than men is just the kind of abstract generaliza- tion, applied to individual women because of their being women, which Title VII was designed to abolish. Not all women live longer than all men, yet each individual woman is required to contribute more, not because she as an individual will live longer, but because the members of her sexual group, on the average, live longer. The Department argues, however, that Congress did not intend Title VII to prohibit drawing sexual distinc- tions when there is a statistically valid basis for doing so and when it is impossible to determine ahead of time when the individual employee is going to die. Thus it is argued that, because it is undisputed that _.. women on the average do live longer, and because it is not possible to predict which women will actually live longer, Title VII ought to permit a higher contribu- tion requirement for all women. The problem raised by this case is unique. There have been two basic policies which have guided the courts in prior Title VII litigation: (1) the policy against attributing general group characteristics to each individual member of the group, the major thrust of the statute, and (2) the policy allowing relevant employ- ment factors to be considered in differentiating among individuals. See Bernstein & Williams, Title VII and the Problem of Sex Classifications in Pension Programs, 74 Col. L. Rev. 1203, 1219 (1974). Heretofore, these two policies have not conflicted because in cases where general group characteristics were attributed to the individual employee, the relevant employment character- istics were capable of being individually measured. Id. at 1220. For example, in Rosenfeld v. So. Pacific Co., 9 Cir., 1971, 444 F.2d 1219, we held that refus- ing to hire women for positions which entailed long hours and heavy physical effort violated Title VII because it entailed attributing the generally weaker physique of women to all women. An important basis of our decision was the fact that each individual woman applicant could actually be tested to see whether the relevant characteristic of strength was or was not in fact lacking. This same consideration has been present in cases finding illegal: (1) the refusal to allow women to work overtime because of a belief that women as a group cannot work the long hours that men can, Schaeffer v. San Diego Yellow Cabs, Inc., 9 Cir., - = 1972, 462 F.2d 1002; (2) the forced retirement of all women at an earlier age than men because of a belief that; on the average, men were capable of adequate performance longer than women, Rosen v. Public Service Electric and Gas Co., 3 Cir., 1973, 477 F.2d 90, Bartmess v. Drewrys U.S.A., Inc., 7 Cir., 1971, 444 F.2d 1186; (3) the termination of women employees who married because of a belief that, on the average, women could not work effectively and keep an adequate home life, Sprogis v. United Air Lines, Inc., 7 Cir., 1971, 444 F.2d 1194; (4) the refusal to hire men as flight attendants because men, on the average, are said to be emotionally unsuited for that type of work, Diaz v. Pan Am. World Airways, Inc.. 5 Cir., 1971, 442 F.2d 385; (5) the refusal to hire women as telephone switchmen because of a belief that, on the average, women are incapable of working the long hours and doing the leavy lifting involved, Weeks v. Southern Bell Telephone & Tele- graph Co., 5 Cir., 1969, 408 F.2d 228; (6) requiring pregnant women to take mandatory leave after six months of pregnancy because, on the average, pregnant women are supposed to be incapable of working ade- quately after that point, Berg v. Richmond Unified School Dist., 9 Cir., 1975, 528 F.2d 1208; (7) the refusal to hire women with preschool children because of a belief that family responsibilities would interfere with their job performance, Phillips v. Martin Marietta Corp., 1971, 400 U.S. 542. In the present case a relevant characteristic in deter- mining how large an individual’s retirement contribution should be is an informed prediction as to how long the person will live. But this characteristic, unlike those 1p in the prior cases, is impossible to determine on an individual basis at the time when the contribution must be made. Thus, the policy of allowing relevant factors to be considered can be met only by allowing the group longevity statistics to be attributed to the in- dividual members of the group. Yet this is exactly what the thrust of Title VII prohibits. We are therefore faced with the unique case in which the policy against per se discrimination directly conflicts with the policy of allowing relevant factors to be considered. To support its argument that the actuarial distinctions are permitted under Title VII, the Department points to both the “bona fide occupational qualification excep- tion” in 42 U.S.C. § 2000e-2(e) and the Bennett Amendment to Title VII, 42 U.S.C. § 2000e-2(h). Reconciliation of the conflicting policies noted above would be easy if Congress had specifically covered the kind of actuarial distinction that is before us in one of the exceptions which the Department cites. Both, however, are very general and have no language relating to actuarially determined discrimination, much less to pension plans. A. The Bona Fide Occupational Qualification [BFOQ] Exception. Title 42 U.S.C. § 2000e-2(e) states that an employer may discriminate on the basis of religion, sex, or na- tional origin “where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” EEOC, which is charged with administering and enforcing Title VII and whose inter- pretations of that statute are entitled to great deference, x) Griggs v. Duke Power Co., supra, 401 U.S. at 433- 34; Hutchinson v. Lake Oswego School Dist. #7, 9 Cir., 1975, 519 F.2d 961, 965, has issued guidelines directing that the BFOQ exception “be interpreted nar- rowly.” 29 C.F.R. § 1604.2(a). In one of the few cases ruling on this exception, the Fifth Circuit has said: the use of the word “necessary” in [§$ 2000e- 2(e)] requires that we apply a business necessity test, not a business convenience test. That is to say, discrimination based on sex is valid only when the essence of the business operation would be undermined... . Diaz v. Pan Am. World Airways, Inc., supra, 442 F.2d at 388 [italics in original]. See also Weeks v. Southern Bell Telephone & Tele- graph Co., supra, 408 F.2d at 232. Discriminating against women in setting the amount of retirement contributions in no way affects the ability of the Department to provide water and power to the citizens of Los Angeles. Even if it could be said that the relevant business function here involved is that of providing employees with a stable and secure pension program there is no showing that sexual dis- crimination is necessary to protect the essence of that function. Actuarial distinctions arguably enhance the ability of the employer and the pension administrators to predict costs and benefits more accurately, but it cannot be said that providing a financially sound pen- sion plan requires an actuarial classification based whol- ly on sex. This is especially true when distinctions based on many other longevity factors (e.g., smoking and drinking habits, normality of weight, prior medical Sip history, family longevity history) are not used in deter- mining contribution levels. Thus, we find that the BFOQ exception does not permit the sexual classification chal- lenged in this case. B. The Bennett Amendment. In its original proposed form, 42 U.S.C. § 2000e- 2(h) stated that discrimination among employees was permitted if based on a bona fide seniority or merit system, a system rewarding quantity or quality of pro- duction, different work locations, or professionally de- veloped ability tests. Because the inclusion of “sex” as one of the categories of discrimination made illegal by Title VII was done by last minute amendment, received almost no attention, and produced no legislative history, see 110 Cong. Rec. 2720 (Rep. Green’s re- marks, Feb. 10, 1964); Berstein & Williams, supra, 74 Col. L. Rev. at 1216-17, Senator Bennett became concerned that the Act might inadvertently conflict with the Equal Pay Act of 1963, which had received careful attention the year before. Therefore, he pro- posed, and Congress approved, an amendment to § 2000e-2(h), which reads: It shall not be an unlawful employment practice under this subchapter for any employer to differ- entiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29 [the Equal Pay Act]. Title 29 U.S.C. § 206(d)(1), which was thus incor- porated into the Civil Rights Act of 1964 by the Bennett Amendment, says that it shall be unlawful to discriminate on the basis of sex in paying wages: —-13— except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. It is exception iv which the Department says permits the kind of actuarially based discrimination that is in question here. However, it does not seem reasonable to us to say that an actuarial distinction based entirely on sex is “based on any other factor other than sex.” Sex is exactly what it is based on. Additionally, the legislative history of the Equal Pay Act indicates that the general language of § 206(d)(1) was not intended to exempt pension plans, or any actuarially based employee program, from its coverage. The House Committee on Education and Labor, which reported out the E.ual Pay Act, commented on the exceptions as follows: Three specific exceptions and one broad general exception are also listed. It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has been also included. Thus, among other things, shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differ- ences based on experience, training, or ability would also be excluded. It also recognizes certain special circumstances, such as “red circle rates.” This term is borrowed from War Labor Board parlance and describes certain unusual, higher than 14 normal wage rates which are maintained for many valid reasons. For instance, it is not uncom- mon for an employer who must reduce help in a skilled job to transfer employees to other less demanding jobs but to continue to pay them a premium rate in order to have them available when they are again needed for their former jobs. House Report #309 to accompany H.R. 6060, May 20, 1963, Committee on Labor and Educa- tion, reprinted in 1963 U.S. Code Cong. & Admin. News 687, 689 (88th Cong., Ist sess. ). This is the only legislative history coming from the House concerning the exceptions upon which the De- partment relies. It seems clear that, at least in the House, exception iv was seen only as a catch-all cate- gory which would permit distinctions similar to those based on seniority, merit, or production but which do not literally fall into any of those categories, and not a disguised grant of legitimacy for pension plan discrim- ination based on sex.” The report of the Senate Committee on Labor and Public Welfare indicates that, unlike the House com- mittee, the Senate committee did specifically consider how pension and insurance plans would fit into the scheme of the Equal Pay Act. It commented: Furthermore, questions can legitimately be raised as to the accuracy of defining such costs as pension and welfare payments as related to sex. It has 2It is especially significant that the Committee made no mention of pension plans, because the problem was specifically brought to its attention during the —s conducted on the Equal Pay Act. Hearings before the House Special Subcommittee on Education & Labor, 88th Cong., Ist sess., 1963 (Equal Pay Act, H.R. 3861) at p. 103. nf 3$-— been pointed out that the higher susceptibility of men to disabling injury can result in a greater cost to the employer, and that these figures as to health and welfare costs can only be applied plant-wide. It may be that it is more expensive to hire women in one department but it is more expensive to hire men in another, and overall cost figures may demonstrate conclusively that the employer has made a sound decision to hire women and pay them on an equal basis. It is the intention of the committee that where it can be shown that, on the basis of all of the elements of the employment costs of both men and women, an employer will be economical- ly penalized by the elimination of a wage dif- ferential, the Secretary can permit an exception similar to those he can permit for a bona fide seniority system or other exception mentioned above. & Senate Report #176 to accompany S. 1409, May 13, 1963, Committee on Labor and Public Welfare, at p. 4 (88th Cong., Ist sess. ). This seems to indicate that the Senate had a broader view of exception iv than did the House in that, when an employer can demonstrate that he incurs significant costs because of employing a particular sex, exception iv would allow the Secretary of Labor, through the Wage-Hour Administrator, to grant an exception from the provisions of the Act. However, in this case there is nothing in the record to show, and the Department does not claim, that it requires higher contributions from women because it would be economically penalized if it did not; it a " requires the higher contributions only because it be- lieves that the pension fund itself will thereby be better funded and easier to administer. Thus, whatever the Senate committee had in mind about the Equal Pay Act, it would not, when grafted onto the provisions of Title VII, be the kind, of broad exception to the rule against per se discrimination which the Department needs to justify the contribution rate differential here involved. Neither the clear language of the statute, § 206(d)(1), nor the legislaive history supports the Department’s position. Nonetheless, the Department -points to a dialogue between Senator Humphrey, the floor manager of the 1964 Civil Rights Act, and Senator Randolph, which occurred during the floor debate on the 1964 Act (not the Equal Pay Act) and Title VII. SEN. RANDOLPH: Mr. President, I wish to ask of the Senator from Minnesota [Mr. Hum- phrey], who is the effective manager of the pend- ing bill, a clarifying question on the provisions of title VII. I have in mind that the social security system, in certain respects, treats men and women different- ly. For example, widows’ benefits are paid automat- ically; but a widower qualifies only if he is dis- abled or if he was actually supported by his de- ceased wife. Also, the wife of a retired employee entitled to social security receives an additional old age benefit; but the husband of such an em- ployee does not. These differences in treatment as I recall, are of long standing. Am I correct, I ask the Senator from Minnesota, in assuming that similar differences of treatment in industrial benefit plans, including earlier retirement options —C-17— for women, may continue in operation under this bill, if it becomes law? SEN. HUMPHREY: Yes. That point was made unmistakably clear earlier today by the adop- tion of the Bennett amendment; so there can be no doubt about it. 110 Cong. Rec. 13663-64, June 12, 1964. Although this does seem to give support to the Department’s position, we do not find it to be persua- sive legislative history. The discussion occurred hours after passage of the Bennett Amendment and cannot be said to be part of the legislative history of that amendment. The Department claims that although the statement was made after the Bennett Amendment was adopted, it was still made before the Senate voted on the entire Civil Rights Act. Thus, it claims that Senator Randolph and others who may have wanted to preserve such distinctions were misled into not offer- ing a further amendment for that purpose. This argu- ment might have some merit were it not for the fact that the same Congress (the 88th) passed both the Civil Rights Act and the Equal Pay Act, and it seems unlikely that Senator Humphrey’s erroneous interpreta- tion of the latter misled many, if any, senators. It certainly misled no members of the House. So far as appears, members of the House never heard of it. We note, too, that every case that has considered whether sex-based early retirement options violate Title VII has held that they do, although it does not appear that the colloquy between Senators Randolph and Hum- phrey was called to the attention of the courts. See Chastang v. Flynn and Emrich Co., 4 Cir., 1976, .... F.2d .... (slip op. June 10, 1976); Rosen v. Public —f-1§— Service Electric & Gas Co., supra; Bartmess v. Drewrys U.S.A., Inc., supra; Fitzpatrick v. Bitzer, D. Conn., 1974, 390 F. Supp. 278, 287-88, aff'd, 2 Cir., 1975, 519 F.2d 559, rev’d on other grounds, 1976, .... U.S. iat See also Peters v. Missouri Pacific R. Co., 5 Cir., 1973, 483 F.2d 490, 492, n.3. As we have noted, Senator Humphrey’s remark re- flects an erroneous interpretation of the Equal Pay Act. Because all that the Bennett Amendment did was to incorporate the exemptions of the Equal Pay Act into Title VII, it is questionable whether the Sena- tor’s statement, made during the debates on the incorpo- rating statute, would be significant when it erroneously interprets the incorporated statute. The Department cites as additional authority interpre- tations of the Equal Pay Act by the Administrator of the Wage and Hour Division of the Department of Labor. As the official charged with enforcing and interpreting the Equal Pay Act, his interpretations of that Act are entitled to great deference. Udall v. Tal- man, 1965, 380 U.S. 1. However, the interpretation relied on by the Department, appearing at 29 C.F.R. § 800.116(d), merely states that in providing benefit plans for employees through outside insurers an em- ployer does not violate the Equal Pay Act if either the amount contributed by the employer for each em- ployee is the same and resulting benefits are different or if the amount of the benefit is the same while the employer contributions differ. While this reflects the Wage-Hour Administrator’s general thinking, it does not deal directly with our case of an employer requir- ing greater pension plan contributions from women employees when the plan is funded and administered by the employer and its employees. so We note, too, that to the extent that the Wage- Hour Administrator’s interpretation does deal with the present case, his interpretation conflicts with that of EEOC, which administers Title VII and whose interpre- tations of Title VII must be given great deference. Therefore, the EEOC interpretations of the Bennett Amendment are worthy of more deference than are those of the Wage-Hour Administrator relating to the Equal Pay Act. The EEOC regulation, 29 C.F.R. § 1604.9(e & f), makes it a violation of Title VII where a benefit plan provides unequal benefits to em- ployees even if employer contributions are equal. How- ever, like the Wage-Hour Administrator’s, these regula- tions do not squarely cover the present case. Thus, the Department’s reliance on administrative interpreta- tion is misplaced. Our opinion of the effect of Title VII in this case is reinforced by the fact that following the passage of Title VII Congress did expressly exempt actuarially based pension and retirement funds from the provisions of the Age Discrimination Act of 1967, 29 U.S.C. § 623(f)(2). In fact, during deliberations on the 1964 Civil Rights Act, Senator Smathers moved to add “age” as one of the types of discrimination made illegal by Title VII, but the amendment was defeated in part because of a concern that inclusion of “age” as a Title VII protected category might have “tre- mendous implications” on industrial group insurance and pensions. Equal Employment Opportunity Com- mission, Legislative History of Titles VII and IX of Civil Rights Act-of 1964, at 3174 (1968). This tends to indicate that Congress did foresee that actuarially based plans would fall under the provisions of Title VII, and that it felt that age discrimination, but not -62p— sex discrimination, on such a basis was proper. Thus, by not adding “age” to Title VII in 1964 and not making a pension plan exception to its terms for “sex,” and by later prohibiting age discrimination in a separate bill which does make a pension plan exception to its terms for age, Congress gave a strong indication that it did intend to place sex discrimination in pension and retirement plans, even when based on actuarially sound tables, within the type of discrimination forbidden by Title VII. We emphasize that our holding rests on the clear policy behind Title VII of requiring that each employee be treated as an individual. Setting retirement contribu- tion rates solely on the basis of sex is a failure to treat each employee as an individual; it treats each employee only as a member of one sex. We do not pass judgment on the legality of a plan which determines contribution rates based on a significant number of actuarially determined characteristics, one of which is sex. Our holding is limited to the proposition that when sex is singled out as the only, or as a predom- inant, factor, the employee is being treated in the manner which Title VII forbids. One district court case has dealt with a situation very similar to ours. In Henderson v. Oregon, D. Ore., 1975, 405 F. Supp. 1271, the court relied heavily on the lower court decision in the present case in holding a scheme similar to that involved here illegal under Title VII. Our holding agrees with the only administrative rul- ing dealing with the exact question before us, one made by the EEOC, EEOC Dec. #75-146, Jan. 13, 1975, 2 CCH Employment Practices 4190, ¢ 6447. —O3i— Relying in part on its earlier interpretation, noted supra, the Commission held: An inescapable corollary to this principle is that an employer may not require a higher contribu- tion from members of one sex where benefits to members of both sexes are the same. [This] is based upon the fundamental Title VII precept that generalizations relating to sex, race, religion, and national origin cannot be permitted to influence the terms and conditions of an in- dividual’s employment, even where the generaliza- tions are statistically valid. Ill. The Reimbursement Issue. The Department finally argues that even if the higher contribution required of women violates Title VII, it would be unfair to refund to the plaintiffs the amounts that they contributed in excess of the amounts that similarly situated male employees contributed. The De- partment says that it was acting in good faith in that it believed that state law requiring that retirement plans be run on a “sound actuarial basis” (Cal. Gov't Code § 45342) mandated the use of sex-based actuarial tables, and that paying these contributions back to the women employees would leave the retirement plan underfunded. The rule that we have adopted relating to monetary awards for past violations of Title VII is stated in Schaeffer v. San Diego Yellow Cabs, Inc., 9 Cir., 1972, 462 F.2d 1002. In the case of damages of this naturs, a court must balance the various equities between the parties and decide upon a result which is consistent —aa— with the purposes of the Equal Employment Op- portunities Act, and the fundamental concepts of fairness. Jd. at 1006. The defendant in Schaeffer argued that in denying women overtime work it has relied in good faith on a state statute requiring that women not work more than eight hours a day, and that therefore it was unfair to make it pay damages for an unwitting viola- tion. We rejected that defense with the following com- ment: Rather than drawing any hard and fast rule con- cerning the defense of good faith reliance on a state statute, we believe that in each case the merits of the plaintiff's claim and the public policy be- hind it must be balanced against the hardship on a good faith employer. Jd. at 1007. Applying this test to the case at bar, we find that the district court did not abuse its discretion in award- ing plaintiffs a refund of their excess contributions. In the first place, the state statute requiring that such plans be administered on a sound actuarial basis by no means requires that the Department use sex- based, and only sex-based, distinctions. In Schaeffer. where we found a back pay award proper, the statute prohibiting women from working more than eight hours a day placed a much greater compulsion on the em- ployer to refuse women overtime work than the statute in the present case placed on the Department to re- quire higher retirement contributions. Second, Schaeffer was a case where back pay was awarded to women for work that they did not perform but which they had sought. The plaintiffs did not —AZG— earn the award; they were merely denied the opportunity to earn it. This case involves restitution, a situation where the plaintiffs actually earned the amount in question, but then had it taken from them in violation of Title VII. It is one of the primary purposes of Title VII, to “make persons whole for injuries suffered on account of unlawful employment discrimination.” Albemarle Paper Co. v. Moody, 1975, 422 U.S. 405, 418. In light of this purpose we find plaintiffs’ claim to recover money rightfully theirs to be very compelling. In contrast to the plaintiffs’ compelling claim, we find the Department’s “good faith” defense to be less than compelling. The Supreme Court has recently com- mented on this “good faith” defense as follows: But, under Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer’s favor. If backpay were awardable only upon a showing of bad faith, the remedy would become a punish- ment for moral turpitude, rather than a compensa- tion for workers’ injuries. This would read the “make whole” purpose right out of Title VII, for a worker’s injury is no less real siinply because his employer did not inflict it in “bad faith.” Albemarle Paper Co. v. Moody, supra, 42? U.S. at 422. The impact of returning the excess contributions to the plaintiffs in this case is far from oppressive. The amount involved is only 15% of the contributions made by a minority of the Department’s employees for the 33-month period from April 5, 1972, to De- cember 31, 1974. This might leave the plan somewhat underfunded, but a number of solutions to that problem —C-24— are readily available. Benefits could be lowered. Cur- rent contributions from all employees could be in- creased. The Department could raise its matching per- centage on current contributions, or it could make a lump sum payment into the fund to offset the reim- bursements. However, whatever the adjustments that would have to be made, we do not find that the burden on the pension plan or the Department is sufficient to offset the compelling claim of the plaintiffs to recover the money which they were wrongfully re- quired to contribute. See also Rosen v. Public Service Electric and Gas Co., supra, 477 F.2d at 95-96. In No. 75-2729, the judgment is affirmed. In No. 75-2807, the appeal is dismissed. In No. 75-2905, the appeal is dismissed as moot. The stay heretofore granted by this court will expire when the mandate issues. APPENDIX D. MANHART v. CITY OF LOS ANGELES, DEPT. OF WATER & POWER 699 Marie MANHART et al., Plaintiffs- Appellees, v. CITY OF LOS ANGELES, DEPART- MENT OF WATER AND POWER, a body corporate and politic, et al., De- fendants-Appellants. Nos. 75-2729, 75-2807 and 75-2905. United States Court of Appeals, Ninth Circuit. April 18, 1977. Suit was brought challenging retire- ment plan which required women em- ployees to contribute from their wages 15% more than similarly situated male employees because of the longer average life expectancy of women. On motion for summary judgment, the United States District Court for the Central Dis- trict of California, Harry Pregerson, J., held that the plan violated Title VII of the Civil Rights Act of 1964, enjoined the municipal employer from charging the higher contribution rate against women, awarded a refund of all excess contributions made on or after April 5, 1972, and the defendants appealed. The Court of Appeals, Duniway, Circuit Judge, held, inter alia, that the retire- ment plan was violative of Title VII, notwithstanding defendants’ claim that the discrimination was based on longevi- ty, not sex, and was not the kind of invidious discrimination thai Title VII intended to abolish. On petition for rehearing, the Court of Appeals, Duni- way, Circuit Judge, held that the Su- preme Court’s recent “General Electric” decision, which held that the exclusion of pregnancy from a program of disability insurance is not discrimination based on sex as such, did not require a change in the judgment entered. Petition for rehearing denied. Kilkenny, Circuit Judge, filed a dis- senting opinion. Federal Courts #925 Court of Appeals’ prior determina- tion that retirement plan, which required women employees to contribute from their wages 15% more than similarly sit- uated male employees, violated Title VII of the Civil Rights Act of 1964 was not affected by Supreme Court’s recent “General Electric” decision, which held that the exclusion of pregnancy from a program of disability insurance is not discrimination based on sex as such, since the pension plan in question was clearly discriminatory on the basis of sex, since, unlike the situation in “Gener- al Electric,” the plan was facially dis- criminatory, and since, again unlike the “General Electric” situation, there were no inconsistent administrative rulings. On Petition for Rehearing. Before CHAMBERS, DUNIWAY and KILKENNY, Circuit Judges. DUNIWAY, Circuit Judge: Appellants petition for a rehearing and suggest a rehearing in banc. Their principal reliance is upon the decision of the Supreme Court in Genera! Electric Co. v. Gilbert, 1976, US. --—-, 97 S.Ct. 401, 50 L.Ed.2d 343, which was de- cided on December 7, 1976, just two weeks after our decision was filed on November 23, 1976. We conclude that the General Electric case does not re- quire a change in our judgment, for sev- eral reasons. Synopses, Syllabi and Key Number Classification COPYRIGHT © 1977, by WEST PUBLISHING CO The Synopses, Syllabi and Key Number Classifi- cation constitute no part of the opinion of the court a ee ey OS 2 ee ee es ee 76 MANHART v. CITY OF LOS ANGELES, DEPT. OF WATER & POWER First, in that case, as in Geduldig v. Aiello, 1974, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256, upon which the Court primarily relied, the facts were different from the facts in the case at bar. In each of those cases, a program of disabil- ity insurance was involved, and in each pregnancy was excluded as a disability. The Court held that the exclusion was not a discrimination based upon gender as such. It pointed out that the exclu- sion of pregnancy as a disability “divides potential recipients [of benefits] into two groups—pregnant women and nonpreg- nant persons. While the first group is exclusively female, the second includes members of both sexes.” General Elec- tric, supra, —— U.S. at , 97 S.Ct. at 407, quoting from Geduldig, supra, 417 U.S. at 496-97, n. 20, 94 S.Ct. 2485. Thus, said the Court, the exclusion of pregnancy “was not in itself discrimina- tion based on sex,” —— US. , at , 97 S.Ct. 401, at 407. The same cannot be said of the pen- sion plan of the Department in the case at bar. A greater amount is deducted from the wages of every woman employ- ee than from the wages of every man employee whose rate of pay is the same. How can it possibly be said that this discrimination is not based on sex? It is based upon a presumed characteristic of women as a whole, longevity, and it dis- regards every other factor that is known to affect longevity. The higher contri- bution is required specifically and only from women as distinguished from men. To say that the difference is not based on sex is to play with words. In addition, as the Court pointed out in Genera! Electric, under the disability programs in that case and in Geduldig, “The ‘package’ going to relevant identi- fiable groups . . .—male and fe- male employees—covers exactly the same categories of risk, and is facially nondiscriminatory in the sense that ‘{t}here is no risk from which men are and women are not. Likewise, there is no risk from which women are protected and men are not.’ Geduldig, 417 U.S. at 496-97, 94 S.Ct. at 2492” General Electric, —— U.S. »P- ; 97 S.Ct. 401, p. 409. “[G)jender-based dis- crimination does not result simply be- cause an employer's disability benefits plan is less than all inclusive.” Id. at ———., 97 S.Ct. at 409 (footnote omitted). The pension plan in the case at bar is different. The monthly benefit is the same for men and for women, but the cost to women is higher than the cost to men, and this is solely because they are women. Thus the plan is facially dis- criminatory because, while the plan is all inclusive as to retirement benefits, it is discriminatory, on the basis of sex alone, as to costs to the employees. Finally the Court’s opinion in General Electric requires that we reconsider our analysis of the legislative history of the Bennett Amendment (see part II. B. of our opinion). However, upon that recon- sideration, we conclude that a different result is not required in this case. Ap- pellants stress the Court’s reliance, in Genera! Electric, upon the colloquy be- tween Senators Humphrey and Ran- dolph, discussed in Genera] Electric at — US. , at , 97 S.Ct. 401 at 412, and in our opinion at ——— - ——- (slip op. at 12-13). We did not find it to be persuasive legislative history; the Su- preme Court did find it persuasive. We are, of course, bound by that conclusion, but we do not think that it follows that the judgment in this case is erroneous. In General Electric, the Court relied also, and, we think, more heavily, on rul- ings of the Wage and Hour Administra- tor construing the Equal Pay Act, and nell cin MANHART v. CITY OF LOS ANGELES, DEPT. OF WATER & POWER 701 on the fact that EEOC rulings were in- consistent with each other as well as with the rulings of the Administrator (—— U.S. ——-, at ——- - ——,, 97 S.Ct. 401 at 411-412). In our case, there are no such inconsistencies. In his brief as amicus curiae in this case, the Secretary of Labor points out that he (or the Administrator acting for him) “has never approved a practice of requiring women employees to make contributions to a pension plan which are larger than those required of similarly situated men employees.” (Brief at 6) The rulings of the Secretary on which the Department relies do not deal with a requirement that female employees must make greater contributions to the plan than male employees, a requirement which diminishes the current available or “take home” wages of women, as com- pared to those of men. In his June 18, 1964 opinion letter (BNA’s WHM 95:607), the Administrator disapproved of a wage differential be- tween men and women based upon al- leged higher costs of employing women, a part of those costs being for pensions. In an Interpretive Bulletin issued Febru- ary 11, 1966 (3 F.R. 2657, 29 C.F.R. § 800.151), the Administrator said: A wage differential based on claimed differences between the average cost of employing the employer’s women workers as a group and the average cost of employing the men workers as a group does not qualify as a differen- tial based on any “factor other than sex,” and would result in a violation of the equal pay provisions, if the equal pay standard otherwise applies. To group employees solely on the basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential—an assumption plainly contrary to the terms and pur- poses of the Equal Pay Act. Wage differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is di- rected, because in any grouping by sex of the employees to which the cost data relates, the group cost experience is necessarily assessed against an indi- vidual of one sex without regard to whether it costs an employer more or less to employ such individual than a particular individual of the opposite sex under similar working conditions in jobs requiring equal skill, effort. and responsibility. There are no rulings of the Secretary or Administrator inconsistent with this. The one which the Department cites, is- sued September 9, 1965, and amended May 6, 1966, 30 F.R. 11504 and 31 F.R. 6770, 29 C.F.R. § 800.116(d) deals with employer contributions, not compulsory employee contributions which are here involved, and which, under 29 C.F.R. § 800.151 cannot be unequal. No ruling of EEOC conflicts with 29 C.F.R. § 800.151. Nor has EEOC taken inconsistent positions in relation to the problem before us. Its position is stated in 29 C.F.R. § 1604.9, issued April 5, 1972, 37 F.R. 6836, and in EEOC Dec. # 75-146 of Jan. 13, 1975, 2 CCH Em- ployment Practices 4190, 4 6447, both di-- cussed in our opinion. We know of no prior inconsistent rulings. Thus this case is quite unlike General Electric, where there was conflict between EEOC rulings and between rulings of EEOC and those of the Secretary of Labor. Here, the administrative rulings, as they relate to the problem before us, are con- sistent and support the result that we have reached. The petition for a rehearing is denied. The suggestion of a rehearing in banc a i F— The reason for this action was summed up by the House Committee minority report by members includ- ing Congressman Erlenborn, whose substitute bill was adopted by the House. They said in part: “We contend that the EEOC has attained an image as an advocate of civil rights, and properly so. For this very reason, we submit that it cannot be an impartial arbiter of the law. An advocate, by nature, represents one side of an issue. How can he then be asked to apply the law without prejudice?” (U.S. Code, Cong. & Adm. News, 1972, p. 2168.) The floor debates are likewise replete with expres- sions of concern over bias* of the EEOC. (118 C.R. 731, 594, 699, 701.) Accordingly Congress determined not to give the agency any law-making authority. The Courts are to im- partially determine the law. Hence undue deference to the administration gives the agency authority Congress intended it not have and not exercise. It also abdicates the courts’ responsibility which Congress intended the courts exercise. Moreover, since the EEOC has been determined by Congress to be an advocate and not an impartial administrator, deference to such agency deprives defend- ants of an impartial determination required by the 14th Amendment. The Congressional decision not to expand the defini- tion of discrimination and to limit the Court’s jurisdic- 8For example, Senator Saxbe said in part, “However, too —E-18— tion to the statutory definition of unlawful action is also clear. The original legislative proposal was rejected and the final result of the Congressional action is clearly reflected in the Conference report. It states: “1. The Senate amendment required a finding that the respondent engaged in an unlawful em- ployment practice and the House bill required a finding that respondent ‘intentionally’ engaged in such unlawful employment practice. “4. The House bill restated the provisions of existing law prohibiting court ordered remedies based on any adverse action except unlawful em- ployment practices prohibited under Title VII. “The Senate receded with an amendment that provides the following: “1. A finding that the respondent has inten- tionally engaged or is intentionally engaging in an unlawful employment practice, as the language of the current law reads. “4. The provisions of existing law prohibiting court ordered remedies based on any adverse ac- tion except unlawful employment practices under Title VII are retained.” (Conference Report, U.S. Cong. & Adm. News (1972) v. 2, p. 2183.) —E-19— This action by the Congress in 1972 explicitly reaffirmed the action in 1964. In 1964, the original legislative proposal permitted the courts to apply remedies unless the action of the employer had been “for cause.” This implied a very broad authority in the Courts; and that the burden was on the employer to show that the “failure to hire” etc. was for cause. The House Committee changed the language on the House floor to make clear that actions by the employer “for any reason other” than the prohibited five reasons were not unlawful and it is outside the jurisdiction of the court to order remedies unless the employer’s was for a prohibited reason. (110 C.R. 2566, 2/8/64.) When the bill reached the Senate, the Senate added the word “intentional” as a clarifying change. (110 C.R. 12723-4.) Again, as in the House, the view of. the proponents of the bill was that discrimination was action for a reason and that unl< wful discrimination was action for one of the five reasons stated by the statute.* Accordingly the word “intentional” clarified that meaning; but also precluded judicial expansion of the definition. By reaffirming those jurisdictional limitations, Con- gress reaffirmed the statutory limits in 1972. ‘The proponents of the legislation repeatedly pointed out that the word “discrimination” (in an unlawful sense) had a settled legal meaning, as it was used in F.E.P.C. statutes in about half the States, as well as in the National Labor Relations Act, the Interstate Commerce Act, and the Federal Aviation Act. See, e.g. 110 Cong. Rec. 6549, 7218, 5803-4, 5437, 7477. == V. Legislative Intent vs. Interpretive Bulletin in Employer Costs. The Legislative history flatly contradicts the interpre- tive bulletin relied on by the Court of Appeals on rehearing (D-3). For example, the Senate report recognized additional exceptions for wage differentials based on other costs. It said: “It is the intention of the committee that where it can be shown that on the basis of all of the elements of the employment costs of both men and women, an employer will be economically penalized by the elimination of a wage differ- ential, the Secretary can permit an exception simi- lar to those he can permit for a bona fide seniority system or other exception mentioned above.” (109 C.R. 8915.) The agency’s interpretation says exceptions on a cost basis would be “contrary to law” because it is unlawful to differentiate upon the basis of sex. Isn't the Memorandum therefore ultra vires? It says: “To group employees solely on the basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential—an assumption plainly contrary to the terms and purpose of the Equal Pay Act.” Obviously the latter bulletin is not a faithful, or logical, interpretation of a statute which says: —E-21— “It shall not be an unlawful employment practice . . » for an employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer. . . .” nalities APPENDIX F. Charter Sections 220.1(1)(a) and (g). Sec. 220.1. The Department of Water and Power shall also have the power and duty: (1) To establish and maintain within said Depart- ment a general plan and system of retirement, disability, and death benefits, and, in cooperation with its eligible and participating employees, to provide currently out of the Water Revenue Fund and the Power Revenue Fund a portion of the cost under said plan and system, including expenses incident to the administration there- of, subject, however, to the following provisions, to- wit: (a) That such plan and system shall be maintained in accordance with sound business practices and recog- nized actuarial methods, and the respective contribu- tions of said employees and said Department, whether prescribed by present or future provisions of said plan and system, may be modified or adjusted, subject to the direction and approval of the Board of Water and Power Commissioners, whenever the Board of Ad- ministration, as hereinafter designated, shall find that said business practices or said actuarial methods require such modification or adjustment; * * * (g) That such Board of Administration shall at regular intervals, each not exceeding a period of five years, secure a general survey and actuarial report of said plan and system, and said Board, subject to aul Sine the direction and approval of the Board of Water and Power Commissioners, shall from time to time amend said plan and system in such manner as may be found to be advisable to meet changed conditions, or, as in the light of experience, may be considered necessary; * + + --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2193%3A01. Public record. Not legal advice.