Note from Hutson to Guinier; Legal Research on Employment Discrimination

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s3 tw 2028 The United States LAW WEEK 7-t7-84

lic opinion polls, is opposed by most citizcns.
tt liired thc position of hundreds of candi'
datcs on a single political issue, without
howcver cxprcssly advocating the election or

dcfeat of any particular candidate or bclit-
tling the importance of other election issues.

Thc tabloids in question also were not

cxpcnditurcs prohibited by $aalb bccause

they were "news story, commcntary or eol-

torial distributcd thrbugh the facilities of
any t t' pcriodical publication" and hence

cximpted irom the dcfinition of expenditu-re
bv th; l9?4 amendments to the FECA. The

dmpilation of voting records and question-

nairi rcsponses was news, probably not

availablc elsewhcre; and the call to vote pro
lifc was editorial.

Moreover, the special clection editions
wcrc "pcriodical pirblications" within the

meaning of the stitutory exemption' First,
they wJre similar in newsprint, sheet form,
size, and format to the newsletters that the

MCFL published relatively. regularly for
five veari before l9?8. Special election edi-

tioni were published Prior to all elections
since 1974,'thrice bcfore 1978' Secondly'

the legislative history of the newspapgr :x-
cmpti;n shows that Congress intended that
it be a broad exemption, coextensive with
thc First Amendment.

If $441b were intended by Co-ngress. to
orohi6it MCFL's expenditures of printing
ind distributing the newsletters in question,

it would be unconstitutional under the First
Amendment as applied to MCFL because

violative of MCFL freedoms of speech,

Dress. and association. This court's opinion
is based upon three distinctive features of
the expenditures at issue. They were: (l)
independent of any candidate or party; (2)
by a-nonprofitmaking corporation formed-to
aiuance an ideological cause; and (3) for
the purpose of publishing direct political
spccch.' This court concludes that the costs of the
publications in question are more accurately
characterized as speaking than spending
and that in placing the Federal Corrupt
Practices Act in FECA as new $441b Con'
gress did not intend to proscribe the t-ype of
-xpenditure made by the MCFL in 1978.-
Garrity, J.

-USDC Mass; Federal Election Com-
mission v. Massachusetts Citizens for Life,
Inc., No. 82{09-G, 6129184.

thc Age Discrimination in Employmenl Act
(ADEA). The state argucs that agc 50 is a
bona fide occuPational qualification
(BFOQ) for statc police officcrs, and thus
that mindatory retirement at that age is
permissible.

Under the gcnerally accepted stry-dry-d

for evaluating- the adequacy of a BFOQ
defense, as sCt forth in Usery v. Tamiami
Tours, Inc.. 531 F2d 224 (CAs 1976)' and
Orzel v. City of Wauwatosa Fire Dept.' 697
F2d 143 (CA? 1983), an emPloYer must
show that the age qualification is "reason'
ably related to the'cssential operation' of its
business, and must demonstrate, either lhat
there is a factual basis for believing that all
or substantially all persons above the age

limit would be'unable to effectively perform
the duties of thc job, ot that it is impossible
or imDracticable to determine job fitness on

an individualized basis." (Emphasis in
original).

The district court focused its attention on

the meaning of "duties of the job," and'
following thl approach of the Eighth Cir-
cuit in EEOC v. City of St. Paul' 6'll F2d
1162,50 LW 2553 (1982)' rather than that
of the Seventh Circuit in EEOC v' City of
Janesville, 630 F2d 1254 (1980)' decided
that "the policies of the ADEA are best

effected by evaluating the [state's] BFOQ
defense against the requirements of the job
that Ithelergeant] has actually performed
in thi past 

"id 
it likely to perform-in the

future,; rather than the duties performed
by uniformed state police officers generally'

The district court was fully conscious of
the Droblems posed by its frne-tuning ap
oroath. lt noted that there is no correlation
Ltt*""n rank and strenuous activityi offi-
cers in each rank may or may not be re-
quired to perform such activity. It recog-
nized that "the possibility of inconsistent
treatment of officers of the same rank may
be expccted to cause some difficulties," and

that both officers approaching 50 and those
in charge of duty assignments would have

difficulty making assignment decisions. The
court aiso acknowledged that the kind of
Darticularistic case-by+ase analysis it had
undertaken "might inte rfere with the
smooth opcration of the state pension sys'

tem." This approach may also tempt some

to seek a "safe harbor" assignment, penal-

ize the dutiful, discourage promotion. en-

courage litigation, and necessitate judicial
determinations that turn on quality judg-

ments. such as how sedentary is the assign-

ment, and probability- judgments, such as

how long is ihe assignment likel) to last and

how likell is emerS,enc)- duty.

The ADEA does not mandate this aP
proach. The BFOQ statutor)- exceprion afL

plies "where age is a bona fide o{cupational
quali6cation reasonabll' necessar! to the/-
;;;;i-;;'"iion or il. particuiar busi/
ness." Thi word giving rise ro the differing
internretation of the Seventh and Eighth
Circuits is "occupational " ln Janesville. the
Seventh Circuit held that a chief of police'

being within "the generic class of law cn-
forcement personnel." was subjcct to the
age retirement requirementl it dcemed the
term "particular business" to bc thc critical
one, making irrelevant the fact that a par-

ticular occupation may bc included within
it. In St. Paul, the Eighth Circuit hcld that
"occupations" within a "busincss" should
be eximined and that a firc chief, being
completely able to fulfill his duties, was not
subjlct to the age retirement requirement.
It was concerned with the hazard of apply-
ing a BFOQ to any generic class as deter-
mined by a state.

This court takes a position between these

two decisions. Unlike the Seventh Circuit,
this court can ascribe a meaning to "occu'
pational qualification" that is separate from
:'particulir business." For example. an air-
lihe is a "particular business," but within
that business there are specific occupations
with their own separate training, career pro
gression, and age limitations, such as cap
[ain and first officer (retirement age 60)
and flight engineer (retirement age 70).

When, however, a Person signs uP in a

oaramilitary uniformed force, where one is

iubject to generally unrestricted reassign-
ment and performance of the most strenu-
ous duties 1n an emergency, and undergoes
the military training required of all recruits,
with the expectation of receiving special
pcnsion and disability bcnefits, this court
would be loath to equate particular "assign-
ments," even if of long duration, to
"occupations."

The Eighth Circuit case is susceptible of
two interpretations. lt dealt with the posi-

tion of fire chief; arguably this position was

sufficiently distinct to be considered an oc-

cupation ieparate from that of the rest of
the department. But the court went on to
say, "we cannot believe that the ADEA was

iniended to allow a city to retire a police
dispatcher because that person is too old to-

serve on a SWAT team." If this nicety of
distinction were to govern, this court would
have to say that an age limit geared to those

oerforming at critical times the most stren-
Lous funct-ion of a unit could not be applied
to those performing somewhat less strenu-
ous functions. If such were the law' state
troopers engaged in tracking down and ap
prehending car thieves and drug runners
tould be subjected to an age 50 retirement
requirement, but those who merely had to
chise speeders, to attend truck weighing
stations; and to apprehend drivers under the
influence of alcohol or without proper li-
censes would not be so subjected. This
would atomize the general concept of "oc-
cupation."-Coffin. J.

-CA l: Mahonev v. Trabucco. No' 83-

I
nC,e

Employment Discrimination

AGE DISCRIMINATION_
Messrchusetts' mandetor-v retiremeni ege

of 50 for uniformed state police officers is
bnne 6de occuprtionrl qualifrcetion exempt
from strictures of Age Discrimination in
farphyment Act,

A vctcran police sergeant claims that a

Massachusetts law requiring the retirement
of ell uniformcd officers at age 50 violates

t862.',7 12184

PRACTICE AND PROCEDURE-
Employer's relicnce on stete egency order

remedl'ing discrimination egainst certain
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* 7-17-94 The United States LAW WEEK 53 LW 2029

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employees under stete frir enrployment law
thrt is not inconsistcnt ?ith Title VII of

. 1964 Civil Righrs Aci rbsolutely bers fellon
I employees' lrwsuit cleiming thrt remediel
rction ttken pursurnt to strte order violtt€s
Title VII.

This is a case of first impression rcgard-
ing the relationship bcrween federaI en-
forccment of Title VII of thc 1964 Civil
Rights Act and statc enforccment of state
fair employment laws. The district court
concludcd that a city police dcpartment vio
lated the Title VII rights of reccntly pre
moted male detectivcs whcn it complied
with an order by the Wisconsin fair employ-
fnent agency rcquiring the city to raise the
palaries of female detcctivcs to the level
paid to more scnior male detectives.

The issue of first imprcssion is whether
the city's reliance on a state agcncy order
can be a defense to a Title VII claim. Citing
Williams v. Gencral Foods Corp., 492 F2d
399 (CA7 1974), the district court ruled
that reliance on a state law can never be a
defense to a claim of sex discrimination.
However, a more thorough analysis of the
rclationship bctween state enforcement of
state fair employment laws and federal cn-
forcement of Title VII is rcquired.

The Civil Rights Act of 1964 conrains
two provisions regarding the effect o[ the
new federal law on state laws. Section 708
of Title VII provides: "Nothing in this sub-
chapter shall be deemed to exempt or re-
lieve any person from any liability, duty,
penalty, or punishment provided by any
present or future law of any state or politi-
cal subdivision of a state, other than any
such law which purports to require or per-
mit the doing of any act which would be an
unlawful employment practice under this
subchapter." Similarly, gl104 of Title IX
provides: "Nothing contained in any title of
this Act shall bc construed as indicating an
int€nt on the part of Congress to occupy the
6eld in which any such title operates 1o the
cxclusion of state laws on the same subject
matter. nor shall any provision of this Act
be construed as invalidating any provision
of state law unless such provision ls incon-
sistent with any of the purposes of this Act,
or any provisions thereof."

The legislative history, case law, and
structure of the enforcement provisions of
Title VII make clear that Congress intend-
ed that the states play an active role in
ending discrimination and that the "sav-
ings" provisions should not bc construed to
undermine state efforts. Enforcement of Ti-
tle VII is premised on the belief thar states
should be given the first opportunity to deal
with discrimination. Section 706 of Title
Vll requires that when the state has a lan,
prohibiting the unlawful employment prac-
tice and an agenc), authorized to enforce
that la*, then the complainant musl pursue
state remedies bcfore 6ling charges under
Title VII with the EEOC.

Congress clearly intended to encourage
state protection of civil rights in the area of

cmployment discrimination, without aban-
doning the power to usc fedcral cnforcc-
menl mcchanisms when state remedies
prove ineffective. Sections 708 and ll04
were designed to accomplish this goat by'
saving state laws that were consistent with
the goals of Title VII while invalidating
those that hindered protection of civil
rights.

The district court read $708 and the Wil-
liams dccision as eliminating reliance on
any statc law as a defense in a Titlc VII
action. But $708 does not preempt all state
laws, only those that are inconsistent with
the goals of Title VII. Williams is consistent
with this proposition. In that case, the em-
ployer relied on the Illinois Female Employ-
ment. Act to justify discrimination agiinit
female cmployees. This court rejecte-d this
defense lccquge "protective" legislation
such as the lllinois law, which prohibited
women from working more than 48 hours
per week or nine hours per day, acts to
perpetuate scx discrimination in direct con_
travention of the policy behind Title VII
and therefore is not saved by 99708 or I 104.
Williams, however, does not stand for the
proposition that all state laws regarding sex
discrimination are to be discarded. This
would totally undermine the dual enforce-
ment system envisioned by Congress.

The district court's analysis was too sim-
plistic in accepting a pcr se approach to
invalidating state employment laws. Proper
analysis requires that the state law be ex-
amined to determine whether it is the type
of law Congress expected to act as the fiist
line of offense against employment discrimi-
nation or whether it itself is a cause of
discrimination.

The city promoted female detectives to
detective supervisors after unsuccessfully
challenging charges of discrimination from
the state department of human rights pur-
suant to the Wisconsin Fair Employment
Act. That acr is nearly identical to Title
VII; one difference is the date cach began to
prohibit sex discrimination against munici-
pal employees. The state act proscribed this
conduct in 1961, while Title VII did not do
so until 1972. h would be ironic indeed to
hold that Congress, which never indicated
any intention of requiring that state fair
employment laws be identical to Title VII.
intended to invalidate state laws that extend
their protection into more work places than
does Title VII.

The only rational resolution of the issue
here is to hold that reliance on a state
agency's order enforcing the right of a pre
tccted group to be free from emplovmenr
discrimination is an absolute bar ro a suil b\
fellou employees claiming thar the acrion
required bl the remedial order constitutes a
violation of Title VII.-Pell. J.

-CA 7: Grann v. Cirl of Madison, No.
82-2887.612s/84.

Health Care

MENTAL HEALTH_
Court order withdrewing meotrl patient

fr-oq nsVcbotropic medicrtiorq for purpose
of d-etermining wbether remission of pr-
tienl's mentel illness is sufficient to renier
him not subjeci to court-ordered bospitrlizr-
tion or is merely induced by such medica-
tion, violetes due process end Ohio's stetu-
tory rigbt to t estment unless it is based on
medicrl judgment recommending such
rithdrewel.

The patient allegedly shot and killed a
waitress because she failed to give him the
proper amount of a milkshake or short-
changed him. He was indicted for murder
but was found incompetent to stand trial; he
was placed on psychotropic medication at
the state hospital in order to subdue his
antisocial behavior. At a commitment hear-
ing, counsel argued that the patient's men-
tal illness was in remission and he was
therefore not subjecr to hospitalization. The
court, however, found him to be mentally ill
and a threat to society. Unable to determine
the cause of remission, the court further
ordered that all medication be withheld in
order to allow physicians to examine him
while not under the influence of medication.

Under the statute, a person subject to
hospitalization must represent a substantial
risk of physical harm to himself or other
members of society at the time of the com-
mitmcnt hearing. Present mental state is
evaluated upon current or rec€nt behavior
and prior dangerous propensities. The trial
court has broad discretion to rcview the
person's past history. In order to guide that
discretion, this court hereby adopts a "total-
ity of the circumstances" test, which bal-
ances the individual's right against involun-
tary confinement and deprivation of liberty,
and the state's interest in committing the
emotionally disturbed.

Among the factors to be considered at a
commitment hearing are: (l) whether the
person currently rcpresents a substantial
risk of physical harm to himself or society;
(2) psychiatric and medical testimony as io
present condition; (3) whether the person
has insight into its condition so that he will
continue prescribed treatment or seek pro
fessional assistance; (4) grounds for com-
mitment; (5) past history relevanr to estab-
lish the person's degree of conformity to
laws and values of society; (6) the medi6ally
suggested cause and degree of remission, if
any, and the probability remission will con-
tinue should he be released. An individual
whose mental illness is in a state of remis-
sion is subject to hospitalization pursuant to
the statute if there is a substantial likeli-
hood that his freedom will result in physical
harm to himself or society. A nondangerous
individual capable of sun,iving safCly by
himself or with family or friends is noi
subject to confinement.

Civil commitment constirutes a signifi-
cant deprivation of liberty requiring due

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