Phillips v. Martin Marietta Corporation Brief in Opposition to Petition for Writ of Certiorari

    jiupronr Court of ttje Pmbfr Jitairs
October Term, 1969 

No. 1058

In The

Ida Phillips,

—v.-
Petitioner,

Martin Marietta Corporation

Respondent

BRIEF IN OPPOSITION TO A PETITION FOR A WRIT 
OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT

W illiam Y. A kerman

Suite 506 First National Bank Building
P. 0. Box 231
Orlando, Florida 32802
Attorney for Respondent

Clark C. V ogel
277 Park Avenue
New York, New York 10017

Of Counsel

J. Thomas Cardwell 
Donald T. Senterfitt 
George T. E idson

On the Brief



I N D E X

PAGE

Question Presented 1

Statement of the Case 2

Introduction 3

Argument

I. The Decision Below Does Not Conflict with
Decisions of Other Courts of Appeals 4

II. The Decision Below Does Not Frustrate the
Aims or the Effectiveness of Title VII 7

Conclusion 10



11

A uthorities Cited
page

Cases:

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir.
1969) ................................................................................  4,5

Cooper v. Delta Airlines, Inc. 274 F. Supp. 781 (E. D.
La. 1967), Appeal dismissed, No. 25,698 (5th Cir.,
Sept. 1968) 7

Local 53, Heat & Frost Insulators Workers v. Vogler,
407 F.2d 1047 (5th Cir. 1969) 5, 6, 7, 9

Papermakers Local 189 v. United States 416 F.2d 980
(5th Cir. 1969) 5, 6

United States v. Sheet Metal Workers, Local 36, 416 
F.2d 123 (8th Cir. 1969) 5, 6, 8

Statutes:

42 U.S.C. § 2000e-2(a) ......................................................  1,2

Miscellaneous:

U. S. Department of Labor, Bull. No. 290, 1965 Hand­
book on Women Workers (1965) 10



In The

J^uprpntB (Umirl o f  tfys S t a t e s
October Term, 1969

No. 1058

Ida Phillips,
Petitioner,

— v.—

Martin Marietta Corporation,
Respondent.

BRIEF IN OPPOSITION
TO PETITION FOR A WRIT OF CERTIORARI TO THE 

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

Question Presented

Whether the refusal to hire women with pre-school aged 
children is per se a violation of the sex discrimination prohi­
bition of 42 United States Code §2000e-2(a).



2

Statement Of The Case

Petitioner, Ida Phillips, applied for the position of Assembly 
Trainee with the respondent, Martin Marietta Corporation. 
Upon being informed that women having pre-school age chil­
dren would not be considered for this position, she filed the 
action below complaining that this employment practice con­
stituted unlawful sex discrimination under 42 United States 
Code 2000e-2(a).

The District Court struck the reference to pre-school age 
children from the complaint but permitted it to stand other­
wise in order to afford the petitioner an opportunity to 
present any factual evidence of discrimination on the part of 
the respondent. Martin Marietta Corporation then filed a 
motion for summary judgment accompanied by supporting 
affidavits containing evidence to the effect no discrimination 
in employment opportunities for women had occurred. The 
petitioner at no time presented any evidence; however, the 
District Court did assume for the purpose of the motion that 
men with pre-school age children would have been hired. Con­
trary to the petitioner’s statement of the case, there was no 
evidence that Mrs. Phillips had a high school background or 
that this was the only pre-requisite to the job, nor is there 
anything in this record concerning the employment practices 
of the respondent in regard to inquiry or requirements as to 
the family situation of prospective employees. Based on the 
evidence offered by the respondent and in view of the absence 
of evidence by the petitioner, the District Court ruled that 
there was no material issue of fact and granted a summary 
judgment in favor of Martin Marietta Corporation. This was 
appealed to the Fifth Circuit Court of Appeals, which resulted 
in the opinion of which review is now being sought.



3

Introduction

The petition seeking review relies on two grounds, first, 
that the decision below conflicts with decisions of other courts 
of appeals and second, that it is an erroneous construction of 
important federal legislation which inhibits its effectiveness. 
To decide whether there is a conflict or construction detri­
mental to the effectiveness of the Act, we must at the outset 
note with some precision what was decided. The issue pre­
sented to the Court of Appeals was whether it was per se a 
violation of Title VII to decline to hire women with pre-school 
age children. Respondent took the position that in declining 
to hire Mrs. Phillips, it did so on the basis of a qualification 
concededly not proscribed by the Act, pre-school age children, 
and not because she was a woman. Whether the application of 
this non-prohibited standard results in discrimination against 
women would be resolved as a factual matter. Petitioner 
maintained that the acts alleged constituted a per se violation 
of Title VII, and therefore there need be no factual inquiry 
into the actual effects of the practice.

In its decision, the Court of Appeals decided only that the 
application of the non-prohibited criterion (pre-school age 
children) to one sex did not in itself automatically violate 
Title VII. As the court put it,

“ When another criterion of employment is added 
to one of the classifications listed in the Act, there is 
no longer apparent discrimination based solely on 
race, color, religion or national origin. It becomes 
the function of the courts to study the conditioning 
of employment on one of the elements outlined in the 
statute coupled with the additional requirement, and 
to determine if any individual or group is being 
denied work due to his race, color, religion, sex or 
national origin.”

In the instant case, both the District Court and the Court of 
Appeals were persuaded that the evidence showed Martin



4

Marietta did not in fact discriminate against women generally 
and there was no evidence whatever that Mrs. Phillips was 
individually singled out because of her sex.1

I.

The Decision Below Does Not Conflict With Decisions of 
Other Courts of Appeals

There is no real question but that this case does not present 
a direct conflict with any decision of another court of appeals. 
As the opinion below says, “ none of the cases reviewed by this 
Court deal with the specific issue presented here” and no case 
since then has, to counsel’s knowledge, done so. Petitioner 
tacitly concedes this with the statement that the decision con­
flicts “ in principle” with other court of appeals decisions.

Although not clearly specifying the cases on which it relies 
for conflict, Petitioner seems to suggest that the decision be­
low is inconsistent with Boive v. Colgate-Palmolive Co., 416 
F.2d 711 (7th Cir. 1969). See p. 6 of the Petition. A fair 
review of this case will show that it in no way presents the 
issue involved in the instant case. Boive involved the bona fide 
occupational qualification portion of the Act. The specific 
question was whether an employer’s blanket exclusion of 
women from jobs which entailed lifting 35 pounds or more 
was a legitimate bona fide occupational qualification.

In the present case, the bona fide occupational qualification 
exception is in no way involved. The District Court struck 
the allegations of the complaint relating to pre-school age 
children prior to the time Martin Marietta was required to

1 According to the uncontroverted affidavit filed by Martin Marietta, 
70% to 75% of the applicants for the position sought by Mrs. Phillips 
were women and 75% to 80% of those hired for the job were women. 
These figures represent, as is the fact, that Martin Marietta is in no 
wise averse to employing women. Mrs. Phillips offered no evidence on 
her own behalf.



5

file its answer; however, he permitted other allegations of the 
complaint to stand to provide the plaintiff the opportunity to 
present evidence of any actual discrimination. When the 
plaintiff failed to produce any such evidence, a summary 
judgment on behalf of the defendant was granted. After 
reference to pre-school age children was stricken from the 
complaint there was neither reason nor relevance for Martin 
Marietta to raise the bona fide occupational qualification de­
fense to justify the practice.2 That the bona fide occupational 
qualification provisions of the Act were not an issue con­
sidered by the Court of Appeal below was recognized in the 
opinion:

“ The Defendants do not choose to rely on the ‘bona 
fide occupational qualification’ section of the Act, 
but, instead, defend on the premise that their estab­
lished standard of not hiring women with pre-school 
age children is not per se discrimination on the basis 
of ‘sex’.”

Bowe, then, turned on a separate and distinct provision of the 
Act, one expressly not involved in this case.

Petitioner also appears to suggest there may be some con­
flict between the present case and Local 53, Heat & Frost 
Insulators Workers v. Volger, 407 F.2d 1047 (5th Cir. 1969) ; 
Papermakers Local 189 v. United States, 416 F.2d 980 (5th 
Cir. 1969) ; and United States v. Sheet Metal Workers, Local 
36, 416 F.2d 123 (8th Cir. 1969). It should initially be noted 
each of these cases concerns racial, not sex discrimination, 
and the first two arise in the Fifth Circuit, therefore not ap­
propriately representing a conflict between circuits.

2 In the event the employment criterion here involved is determined 
to be discriminatory, Martin Marietta would then raise the bona fide 
occupational qualification defense, and seek to support it with the ap­
propriate evidentiary showing. But before the bona fide occupational 
qualification becomes an issue, it must first be determined that there 
is discrimination within the meaning of the Act, which the defendant 
has denied throughout these proceedings. Only then would the bona 
fide occupational qualification “ excuse” become relevant.



6

More importantly, a fair reading shows none of these cases 
involved the same point, “ in principle” or otherwise, as the 
decision below. Local 53, Heat & Frost Insulators Workers, 
supra, began with the concession that the union’s acts and 
policies were discriminatory, and the opinion involved a de­
termination of whether the injunctive relief granted by the 
district court was proper. In the decision below, the court 
was dealing with the threshold question of the existence vel 
non of discrimination. To the same effect is Papermakers 
Local 189 where the problem was not whether there was dis­
crimination, but to fix what steps would be necessary to cor­
rect the effects of a separate and discriminatory seniority 
system which had existed prior to the Act.

In the case which did not arise in the Fifth Circuit, United 
States v. Sheet Metal Workers, Local 36, the Court of Appeals, 
reversing the District Court, made a determination that the 
Act had been violated after an extremely thorough analysis of 
the evidence which had been produced, and then established 
in detail the relief to be granted. What happened in Sheet 
Metal Workers is consistent with what the court below held: 
that the determination of whether the complained of practices 
of the defendant are discriminatory is to be made by looking 
at the results of their use.

The question presented below, whether the refusal to em­
ploy women with pre-school age children constitutes a per se 
violation of the Act irrespective of the consequences it pro­
duces, has not been faced by any other court.3 Since the cases 
cited by the Petitioner as in conflict each present different 
issues than were before the court below, and since two arise 
in the same circuit, there is not conflict, even “ in principle.”

Respondent respectfully suggests that Petitioner’s attack 
on the decision of the District Court below is not appropriate. 
The District Court’s expression of its feeling as to the differ­
ences between women and men with pre-school age children 
contained in the unreported ruling on the motion for summary 
judgment, however realistic it may be, was not the rationale 
of the Court of Appeal’s decision below. The opinion below



7

did not concern itself with any generalizations about the 
sexes, but decided merely that the criterion applied did not 
per se violate Title VII. It is review of that opinion that is 
presently being sought, not the order of the District Court.

II.

The Decision Below Does Not Frustrate the Aims or the 
Effectiveness of Title VII.

In view of the absence of any real conflict, it is apparent 
that the primary ground upon which review is sought is the 
conjectural deleterious effects which Petitioner undertakes 
to hypothesize as a result of this decision. While Chief Judge 
Brown’s statement “ If ‘sex plus’ stands, the Act is dead” has 
a certain forensic ring, it is not a true characterization.

The opinion below held only that where a non-prohibited 
employment criterion is applied to sex, it is not discrimination 
based on sex alone. Whether by the application of such cri­
terion there has been a discrimination based on sex must be 
determined by a factual inquiry of the effects of the com­
plained of employment practice. This, of course, is precisely 
what the courts require in almost every case arising under 
Title VII, and is what Mrs. Phillips declined to do. In most 
of the Title VII cases, the complained of practice is unques­
tionably neutral on its face, but the court after examining its 
effect determines whether it actually produces a discrimina­
tory result. For example, in Local 53, Heat & Frost Insula­
tors Workers v. Volger, supra, at 1054, the court determined 
that the requirement of recommendation by present members 
of union and favorable vote by majority (neutrally applied to 3

3 Most directly bearing on the present question is Cooper v. Delta Air­
lines, Inc., 274 F. Supp. 781 (E.D. La. 1967), appeal dismissed, No. 
25,698 (5th Cir., Sept. 1968), where the court held Delta’s termination 
of its women stewardesses on marriage was based on marriage, not sex, 
and, therefore, did not violate the Act.



8

black and white applicants alike) was in fact used in that 
case in a discriminatory manner.

Again, in United States v. Sheet Metal Workers, supra, the 
bulk of the court’s extensive opinion deals with a factual 
analysis of whether the practices of the union constituted 
discriminatory procedures under the Act.

The opinion below does not hinder the effectiveness of the 
Act because there is no more burden placed on the plaintiff 
by virtue of this decision than exists in the practice presently 
followed under Title VII cases. The Court in the cases cited 
makes a determination, based on evidence duly presented, as 
to whether the effect of the defendants practices is to work 
a prohibited discrimination. Thus, in the present case, if the 
use of the pre-school age children employment standard ap­
plied to women did in fact work a discrimination, the plaintiff 
was free to produce evidence on the point. The nature of such 
proof would be the same as in any other cause where it is 
contended an employer or a union is making use of tests or 
devices to discriminate. This procedure is consistent with 
what the Courts have been doing in Title VII cases, in appar­
ently effectively administering the Act.

Petitioner seeks a construction of the Act characterizing 
the complained of standard as being a per se violation of the 
Act, and thereby avoiding the necessity of making any show­
ing that women have in fact been deprived of employment 
opportunity by the practice attacked in the suit. When the 
courts below declined to make this construction, they simply 
left the Petitioner in the same position she would have been 
in had an undisputedly neutral employment practice been 
challenged. The opinion below does not add any burden to 
plaintiff’s seeking to avail herself of the Act, but only denies 
her relief where no showing of a discriminatory effect is 
made.

Petitioner also seeks to raise the specter that this decision 
will provide a vehicle for the nefarious plans of those lying 
in wait to discriminate on grounds other than sex, particu-



9

larly, it is suggested, on racial grounds. We must, of course, 
note that this decision is confined to the “ sex” portion of the 
Act and whether it will be followed by other circuits or ap­
plied to other classifications under the Act is, at this point, 
an open question. Naturally one could, by conjoining race 
with some other criterion, work a racial discrimination, but 
he could also achieve the same result by a standard which 
applied to all equally, as, for example, the membership ap­
proval required in the Local 53 case. In either case, if the 
Equal Employment Opportunity Commission and the courts 
find that racial discrimination is in fact occurring, the ap­
propriate relief may be obtained just as it is now being ob­
tained in the courts.

It is also suggested that because of the high proportion of 
non-white mothers who work and have children under six, 
the onus of the decision below will fall along racial lines. For 
this to be a ground for review, we must presuppose a pattern 
or practice aimed at excluding women from the work force. 
To be sure, instances of such discrimination may be pointed 
out, but there is no evidence in the record presented by this 
case, nor suggested in the petition, to indicate black women 
with pre-school age children will be excluded from the work 
force because of the decision below. As noted previously, if 
such were the goal of employers, it doubtless would be sought 
to be achieved by means far more subtle than we are dealing 
with in the present case and would be dealt with in the same 
manner as racial discrimination cases are presently being 
handled. The fact is that many of the black females in the 
work force are employed as domestic and day workers who 
are not affected by the legislation in question.4

In seeking this court’s review, the petition cites statistics 
to the effect that there are many women with pre-school age 
children in the labor force, and then asserts this decision will 
prejudice their work opportunities. There is, however, no 
nexus, other than counsel’s assertion of casual connection, 
between the premise and the conclusion and therefore is a 
non-sequitur as far as is reflected by the record or observable 
facts. No explication of how the harm foreseen will flow



10

from the decision below is articulated. The appeal to this 
court’s concern with individual rights and liberties is not well 
founded on anything contained in the record herein.

CONCLUSION

The decision below determined that in those cases in which 
a pre-employment criterion was used which is not one of 
the five specifically proscribed by Title VII, the question of 
whether it is discriminatory is to be decided by factually 
examining the effect of the use of the standard. This decision 
is correct, and it is not in conflict with any other decision of 
a court of appeal. The objectives of Title VII are in no way 
impaired, since the case requires exactly the same showing 
that is made in cases where an admittedly neutral qualifica­
tion is claimed to be discriminatory. Because there is no con­
flict and because this interpretation of the federal statute will 
not frustrate the administration of the Act, respondent re­
spectfully suggests that the Writ of Certiorari should not be 
granted.

Respectfully submitted

W il l ia m  Y . A k e r m a n  
Attorney for Respondent 4

4 In 1964, 29.9% of the non-white female workers were engaged as 
private-household workers. This was the largest single category. U.S. 
Dept, o f Labor, 1965 Handbook on Women Workers, Bull. 290 at 103.



11

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Brief 
in Opposition to a Petition for a Writ of Certiorari has been 
furnished by mail this /  3  ^  day of February 1970 
to the following: Jack Greenberg; James M. Nabrit, III; 
Norman C. Amaker; William L. Robinson; Lowell Johnston; 
Vilma Martinez Singer, 10 Columbus Circle, New York, New 
York 10019; Earl M. Johnson, 625 West Union Street, Jack­
sonville, Florida 32202; and George Cooper, 435 West 116th 
Street, New York, New York.

W il l ia m  Y . A k e r m a n