Arizona Governing Committee v. Norris Brief Amici Curiae in Support of Respondents

    No. 82-52

In  T he

dmtrt at %  Imtpii States
October Term, 1982

Arizona Governing Committee for 
Tax Deferred Annuity and Deferred Compensation 

Plans, State of Arizona, et a l ,

Petitioners,

Nathalie Norris, on behalf of herself and 
all others similarly situated.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AND THE NAACP LEGAL 

DEFENSE AND EDUCATIONAL FUND, INC.,
AS AMICI CURIAE IN SUPPORT 

OF RESPONDENTS

J ack Greenberg 
J ames M. N abrit, H I  
NAAGP Legal Defense and 

Educational Fund, Inc.
10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397
Barry L. Goldstein 
NAACP Legal Defense and 

Educational Fund, Inc. 
806 Fifteenth Street, N.W. 

Suite 940
Washington, D.C. 20006 
(202) 638-3278

January 7,1983

Maximilian W. Kempner  
Richard C. Dinkelspiel 

Co-Chairmen 
N orman Redlich 

Trustee
W illiam L. Robinson 
N orman J. Chachkin 
Beatrice Rosenberg 
Richard T. Seymour * 

Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
520 Woodward Building 
733 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700 

Attorneys for Amici Curiae
* Counsel of Record

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . -  789-0096 - W a s h i n g t o n , D.C. 2000)



INDEX
Page

INTEREST OF AMICI CURIAE ..................................  1

SUMMARY OF ARGUMENT ................... ...................  2

ARGUMENT ......................................... 1......................... 4

I. THE PRESENT CASE IS CONTROLLED BY 
THIS COURT’S DECISION IN LOS ANGELES 
DEPARTMENT OF WATER <& POWER v. 
MANHART, FROM WHICH IT IS NEITHER 
FACTUALLY NOR LEGALLY DISTIN­
GUISHABLE .... .......... ........... ..... ........... ...........  4
A. Most of the arguments made by petitioners

and their amici were considered and rejected 
in Manhart, and no persuasive justification 
for abandoning that ruling is advanced in 
this case _______________ __ ___ __ __ 4
1. “Equal Actuarial Value” ____ ________  5
2. Adverse Selection ........... ......... .................  7
3. The Accuracy of the Sexually Disparate

Tables in Measuring Longevity ______  11
B. Arizona’s pension plan cannot be sustained 

as being within the “open market” exception 
of Manhart _______________________ ___ _ 15
1. Arizona’s Plan Does Not F it Within the 

“Open Market” Exception of Manhart 
Because the State Did Far More Than 
Allow Employees to Purchase Whatever
Life Annuity Policies Were Available on 
the “Open Market” ______ __ ____ __  15

2. A rizona’s Plan Does not Reflect the “Open 
Market,” Because the State Could Have 
Contracted for Unisex Table Life An­
nuities .............. ..... .......... .................. ......  18



11

INDEX—Continued
Page

II. BECAUSE MANHART  GAVE EMPLOYERS 
ADEQUATE WARNING OF THE TITLE VII 
REQUIREMENTS FOR PENSION PLANS,
THE AWARD OF MONETARY RELIEF BE­
LOW WAS JUST AND PROPER ..... ...............  25

CONCLUSION ................. ..... ........... ................. ............ . 27



Ill

Cases
TABLE OF AUTHORITIES

Page
Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975) ......... .......................................................... 19
Chandler v. Roudebush, 425 U.S. 840’ (1976) ....... 21
Connecticut v. Teal, -----  U.S. ——, 73 L.Ed.2d

130 (1982) ........... ........... ........... ............ ............ 6,7,19
Farmer v. ARA Services, 660 F.2d 1096, 1104 (6th

Cir. 1981) ................ ...... ........................ ............ . 17
Grant v. Bethlehem Steel Corp., 635 F.2d 1007

(2nd Cir. 1980), cert, den., 452 U.S. 940 (1981).. 17
Griggs v. Duke Power Co., 401 U.S. 424 (1971).... 19
Guzman v. Pichirilo, 369 U.S. 698 (1962) ........ ....  19
Hardin v. Stynchcomb, 691 F.2d 1364 (11th Cir.,

1982) _____ ____ _______ _____ ___ _____ ___ _ 19
Jenkins v. United Gas Corporation, 400 F.2d 28

(5th Cir. 1968) ...... ................ ............. ....... .......  8
Los Angeles Department of Water & Power v.

Manhart, 435 U.S. 702 (1978) _____ __ ____ 'passim
Lynch v. Alworth-Stephens Co., 267 U.S. 364 

(1925) .................... ........... ............. ................. . 21
Mississippi University for Women v. Hogan, ——

U.S.------, 73 L.Ed.2d 1090 (1982) ________ 18, 24, 25
Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256 (1979) _____ __ ____ ___ 17
Rosen v. Public Service Electric and Gas Co., 477

F.2d 90 (3rd Cir. 1973) ........... ....... ....... ..... . 17
Robinson v. Lorillard Corp., 444 F.2d 791 (4th

Cir.), cert, dismissed, 404 U.S. 1006 (1971).....  17
Texas Dept, of Community Affairs v. Burdine, 450

U.S. 248 (1981) _______________________ __ 19
United States v. N.L. Industries, 479' F.2d 354 (8th

Cir. 1973) ............... ............ .................. ........ . 17
United States v. Phosphate Export Ass’n, 393 U.S.

199 (1968) ............ .......... .......... .................. .......  19
United States v. Poland, 251 U.S. 221 (1920) ___  19
Vance v. Terrazas, 444 U.S. 252 (1980) .................  19
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).— 18
Williams v. New Orleans Steamship Ass’n, 673

F.2d 742 (5th Cir. 1982) ____ ____________ _ 17



iv

TABLE OF AUTHORITIES—Continued
Page

Women in City Government United v. City of
New York, 515 F,Supp. 295 (S.D.N.Y. 1981).... 26

Statutes
Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§§ 2000© et seq. .__ ________ _____ 5,16,18,19, 25, 26
26 U.S.C.A. § 1(c) (1) (Supp. 1982) ......... ...........  9

Other Authorities
The Chronicle of Higher Education, Vol. 25, No. 7

(October 13, 1982) ........ ........ ............... ....... .....  22
U.S. Bureau of the Census, Vital Statistics of the 

United States, 1973: Volume II—Section 5: Life
Tables (1975) ______ _____ ____ ____ ___ ___ _ 14

U.S. Bureau of the Census, Vital Statistics of the 
United States, 1978: Volume II—Section 5: Life 
Tables (1980) ............ ......... ..... ..... ...... ...............  14



In The

^uprattp (Emtrt uf tl|i> Ti&mtvb States
October Term, 1982

No. 82-52

Arizona Governing Committee for 
Tax Deferred Annuity and Deferred Compensation 

Plans, State of Arizona, et al,
v Petitioners,

Nathalie Norris, on behalf of herself and 
all others similarly situated.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF FOR THE LAWYERS’ COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW AND THE NAACP LEGAL 

DEFENSE AND EDUCATIONAL FUND, INC.,
AS AMICI CURIAE IN SUPPORT 

OF RESPONDENTS

The Lawyers’ Committee for Civil Rights Under Law 
and the N.A.A.C.P. Legal Defense and Educational Fund, 
Inc., respectfully submit this amici brief in support of 
the respondents, with the written consent of all parties. 
The parties’ consents have been filed with the Clerk of the 
Court.

INTEREST OF AMICI CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was founded in 1963, at the request of the President of 
the United States, to help secure the civil rights of all



2

Americans through the prosecution of civil rights cases 
and by other means. Over the past 19 years, the Commit­
tee has enlisted the services of thousands of members of 
the private bar across the country in addressing the legal 
problems caused by discrimination and by poverty.

The NAACP Legal Defense and Educational Fund, 
Inc., is a nonprofit corporation whose principal purpose 
is to secure the civil and constitutional rights of minori­
ties through litigation and education. For more than 
forty years, its attorneys have represented parties in 
thousands of civil rights cases, including many significant 
cases before this Court and the lower courts.

The Committee and the Fund have participated, either 
as counsel for a civil rights plaintiff or as amicus, in a 
number of decisions of this Court construing Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
These include Connecticut v. Teal, -----  U.S. ------, 73
L.Ed.2d 130 (1982) ; General Telephone Co. of the South­
west v. Falcon, ----- U.S. -------, 72 L.Ed.2d 740 (1982);
County of Washington v. Gunther, 452 U.S. 161 (1981); 
California Brewers Ass’n v. Bryant, 444 U.S. 598 (1980); 
United Steelworkers of America v. Weber, 443 U.S. 193 
(1979); Christiansburg Garment Co. v. EEOC, 434 U.S. 
412 (1978); Hazelwood School Dist. v. United States, 433 
U.S. 299 (1977); Chandler v. Roudebush, 425 U.S. 840 
(1976) ; Franks v. Bowman Transp. Co., 424 U.S. 747 
(1976) ; Albemarle Paper Co. v. Moody, 422 U.S. 405 
(1975); Griggs v. Duke Power Co., 401 U.S. 424 (1971) ; 
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), 
and other cases.

SUMMARY OF ARGUMENT
I.

A. This case is squarely controlled by the decision in 
Los Angeles Department of Water & Power v. Manhart, 
which considered and rejected many of the arguments 
advanced by the petitioners and their amici. In Manhart,



3

the employer sought to justify a pension plan requiring 
higher contributions from women than from men for 
monthly benefits equal to those of male employees retiring 
at the same age; this Court rejected the contention that 
the plan did not violate Title VII of the 1964 Civil 
Rights Act because the value of the pensions and con­
tributions were “actuarially equal.” So, in this case, 
Title VII proscribes use of a plan based on equal contri­
butions by men and women but affording smaller monthly 
benefits upon retirement to women.

Manhart also involved the employer’s claim that unisex 
contributions and benefits would lead to adverse selection 
out of the pension scheme by males and the ultimate de­
struction of the plan. It is as clear in this case as it was in 
Manhart that there is no record evidence supporting this 
contention, and that adverse selection on the scale pre­
dicted by petitioners’ amici is highly unlikely. Moreover, 
materials in this record and facts judicially noticeable 
demonstrate the extent to which the life annuity plans at 
issue were based upon the sex of employees, rather than 
upon an accurate measure of expected longevity.

Indeed, the sex-based tables at issue here do not even 
deal fairly with women as a class, compared with men 
as a class. By substantially overstating the average sex­
ual differences in life expectancy at the relevant ages, 
they require women as a class to subsidize the benefits of 
men as a class.

B. The Arizona plan cannot be saved from condemna­
tion under Title VII by the “open market” exception of 
Manhart. Arizona did far more than passively make 
available accumulated contributions to retiring employees 
who purchased their own life annuities on the open mar­
ket; it affirmatively limited the choices available to its 
employees to include only life annuities based on discrim­
inatory, sex-based mortality tables. Nor can it be said 
that Arizona gave its employees a selection of payout op-



4

tions, including life annuity plans, which fairly reflected 
the “open market.” The State simply failed to establish 
on this record that it was unable to contract for unisex 
annuities, and amici’s own research indicates that such 
plans are available and in use today. Moreover, the Lin­
coln National Life Insurance Company—one of the com­
panies used in Arizona’s plan—has informed amici that 
it is willing to provide group life annuities on a unisex 
basis to employers offering it a substantial amount of 
business.

II.

Because Manhart explicitly put employers on notice 
that sex-based pension plans violated Title VII, the con­
siderations which led this Court to withhold retroactive 
monetary relief in that case are not present, and such 
relief was properly awarded below.

ARGUMENT
I. THE PRESENT CASE IS CONTROLLED BY THIS 

COURT’S DECISION IN LOS ANGELES DEPART­
MENT OF WATER & POWER v. MANHART, FROM 
WHICH IT IS NEITHER FACTUALLY NOR 
LEGALLY DISTINGUISHABLE.
A. Most of the arguments made by petitioners and 

their amici were considered and rejected in Man­
hart, and no persuasive justification for abandoning 
that ruling is advanced in this case.

Despite the voluminous and repetitive briefs submitted 
by petitioners and amici, the present case cannot per­
suasively be distinguished from this Court’s recent ruling 
in Los Angeles Department of Water & Power v. Man­
hart, 435 U.S. 702 (1978). In that case the Court held 
that a municipal employer’s mandatory pension plan 
which required higher pay-period contributions from fe­
male employees than from male employees, although pay­
ing equal monthly benefits upon retirement, constituted 
discrimination in compensation on the basis of sex which



5

violated Title VII of the 1964 Civil Rights Act. This con­
clusion followed, the Court’s opinion states, despite the 
actuarial validity of the generalization that women em­
ployees, as a group, could be expected to draw monthly 
pension benefits for a longer period of time than male 
employees, as a group, if both retired at the same age.

1. “Equal Actuarial Value”.
As if Manhart had never been decided, petitioners and 

their amici urge strenuously that Arizona’s pension plan 
—which makes available to its male and female employ­
ees an annuity option requiring equal pay-period contri­
butions but affording women retirees smaller monthly 
benefits than men who retire at the same age—is non- 
discriminatory because the present actuarial value of the 
promise to pay an annuity is equal for men and women 
(based on the longer life expectancy of women as a 
group). Thus, if petitioners are correct, Manhart’s in­
terpretation of Title VII as proscribing unequal contribu­
tions for equal monthly benefits based on sex does not 
reach a plan which requires equal contributions for un­
equal monthly benefits based on sex. Nothing in Manhart 
suggests that the Court’s holding was so cramped.

Indeed, the “equal actuarial value” argument was ad­
vanced in Manhart :

In essence, the Department is arguing that the 
prima facie showing of discrimination based on evi­
dence of different contributions for the respective 
sexes is rebutted by its demonstration that there is 
a like difference in the cost of providing benefits for 
the respective classes.

435 U.S. at 716 (emphasis added). Los Angeles sug­
gested that eliminating this “equal actuarial value” would 
result in unfair “subsidization” of women’s pensions by 
men:

. . . unless women as a class are assessed an extra 
charge, they will be subsidized, to some extent, by



6

the class of male employees. It follows, according to 
the Department, that fairness to its class of male em­
ployees justifies the extra assessment against all of 
its female employees.

Id. at 708-09 (footnote omitted). But Manhart rejected 
these claims based on reasoning which is fully applicable 
to the case at bar:

But the question of fairness to various classes af­
fected by the statute is essentially a matter of policy 
for the legislature to address. Congress has decided 
that classifications based on sex, like those based on 
national origin or race, are unlawful. Actuarial 
studies could unquestionably identify differences in 
life expectancy based on race or natioTial origin, as 
well as sex. But a statute that was designed to make 
race irrelevant in the employment market . . . could 
not reasonably be construed to permit a take-home- 
pay differential based on a racial classification.

Id. at 709 (emphasis added and citation and footnotes 
omitted).

Manhart’s rejection of an “equal actuarial value” claim 
was reinforced last Term by this Court’s decision in
Connecticut v. Teal, -----  U.S. ------, 73 L. Ed. 2d 130
(1982), which made clear that fairness to a class of per­
sons defined according to race, sex or national origin 
characteristics cannot justify unfairness to an individual 
within such a group. There, Connecticut sought to avoid 
judicial scrutiny for job-relatedness of a written test by 
pointing to the “bottom line” results of its promotion 
practices, even though the examination barred many more 
minority than non-minority applicants from further con­
sideration for promotion. Here, Arizona and its amici 
suggest that lower monthly pension benefits for women 
should be insulated from judicial scrutiny because the 
present actuarial value of the annuity option to incumbent 
female employees is the same as the present actuarial 
value of the option to incumbent males. The argument is



7
nothing more nor less than an appeal to the “bottom line” 
concept rejected by the Court in Teal.1

2. Adverse Selection.
The amici in support of petitioners have based much 

of their concern over this case on the possibility that men 
would disproportionately elect to take a lump-sum option, 
rather than a unisex life annuity option that paid them 
less than their lump sum could command on the open 
market by purchasing a male life annuity with the lump 
sum proceeds. The consequence of this anticipated phe­
nomenon, say petitioners’ amici, would be the withdrawal 
of men from payroll-deduction life annuity plans and the 
destruction of the retirement life annuity market as it 
now exists. If this spectre is laid to rest, much of the 
force of the arguments made by those amici disappears; 
indeed, the brief of the American Academy of Actuaries 
(“Academy” ) admits this expressly at p. 11.

There are two important points to be made about these 
arguments. First, the parade of horribles leading from 
“adverse selection” to destruction of the life annuity 
market is just as much hypothetical and unproven on this 
record as it was when the same consequences were pre­
dicted in Manhart. Second, there are available judicially 
noticeable facts which suggest how highly unlikely it is 
that these consequences will flow from an affirmance of 
the judgment below.

1 In fact, the situation in Teal could be expressed in actuarial 
terms. Under the facts of that case, black applicants for promotion 
to the positions at issue had at least as good a  chance of ultimate 
selection as white applicants. If an actuary were to calculate the 
average chances of selection for each race, one could then speak 
of the “actuarial value” or “present value” of each black applicant’s 
chance of selection as being the equivalent of the “actuarial value” 
or “present value” of each white applicant’s chance of selection. 
Focusing on their chances at the outset of the promotion process 
would produce precisely the analysis which is urged with respect 
to the case at bar by the American Council of Life Insurance 
(“Council”). Council brief at pp. 8, 12-14.



8

In Manhart, some of the same amid predicted wide­
spread “adverse selection” by males out of the pension 
plan in question if women employees made equal contri­
butions. 435 U.S. at 716 n.30. But, this Court noted, 
“there ha[d] been no showing that sex distinctions [in 
contributions] are reasonably necessary to the normal 
operation of the Department’s retirement plan [to avoid 
these consequences].” Id. Similarly, there is no evidence 
on this record concerning the extent to which any ad­
verse selection by men would be reasonably likely to oc­
cur if Arizona chooses to contract for life annuities of­
fering equal monthly benefits, and requiring equal 
monthly contributions, for men and women. The briefs 
of petitioners’ amid do not contain very much specific 
data.2 Hence, Manhart is controlling and requires rejec­
tion of the claim that fear of adverse selection justifies 
the discriminatory pay-out to women.

Moreover, it seems self-evident from materials avail­
able to the Court and subject to judicial notice that a male 
employee would have to be extremely foolish to decide to 
spend more in taxes to get his lump-sum payment and an 
individual male life annuity than he would gain in the 
size of his annuity payments.

For the sake of simplicity, let us hypothesize John Doe, 
an unmarried male retiree with an adjusted age of 65 
at the time of retirement. John Doe has $10,000 in tax­
able income the year of his retirement, in addition to his 
deferred compensation benefits in whatever form he de­
cides to take them. He has seen the State’s description of 
how the plan works, Exhibit 10, p. 5, to the Joint Stipu­
lated Statement of Facts, and has decided to follow the

2 The fact that Arizona decided to stop offering- life annuities to 
its employees after the decision below, Pet.Br. at 7, is not probative 
of the effect an affirmance of the Ninth Circuit would have on other 
employers. “Such actions in the face of litigation are equivocal in 
purpose, motive and permanence.” Jenkins v. United Gas Corpora­
tion, 400 F.2d 28, 33 (5th Cir., 1968) (footnote omitted).



9

example there stated, of deferring $1,200 in earnings a 
year for 30 years, invested at a 10% growth rate. He has 
$200,897 available at retirement. (Id.).

If he takes a life annuity with the Lincoln National 
Life Insurance Company, Exhibit 3, second p. 6, to the 
Joint Stipulation tells him that he would get a life an­
nuity of $7.02 per month for each $1,000 he invests based 
on the sexually disparate male table.3 A unisex value 
would be somewhere between the male monthly payment 
of $7.02 and the female monthly payment of $6.18 for 
each $1,000 invested, a maximum difference of 84 cents. 
Use of a unisex table could not possibly produce a monthly 
payment less than $1,241.54.4

If John Doe were to take his $200,897 as a lump sum, 
pay taxes on it and invest the remainder in an annuity 
at the male rate of $7.02 for each thousand dollars in­
vested, he would do significantly worse. At the 1982 tax 
rates set forth in 26 U.S.C.A. § 1 (c) (1) (Supp. 1982), the 
incremental tax on John Doe’s lump-sum payment would 
be $95,534,5 leaving only $105,363 available for the pur­
chase of an annuity at male rates on the open market. 
At the $7.02 rate this would buy a male life annuity 
with a monthly benefit of $739.65.®

3 This figure is for a straight life annuity, with no number of 
months’ payments guaranteed, for the sake of simplicity.

4 The product of $6.18 and 200.897 thousand-dollar units is 
$1,241.54.

3 Federal income tax on a taxable income of $10,000 would be 
$1,233 with a marginal rate of 19%. Federal income tax on a tax­
able income of $210,897 would be $96,767 with a marginal rate of 
50%. Subtracting one figure from the other produces the fact that 
the tax on the lump-sum payment would be $95,534. This does not 
take the possibility of income averaging into account, nor does it 
take the effect of State taxes into account, See note 7 infra.

8 The product of $7.02 and 105.363 thousand-dollar units is 
$739.65.



10

In table form, John Doe’s choices are as follows:
Maximum possible loss from a unisex 
table, if adverse selection by males 
is 100% and unisex rates are the same

Adverse selection by male retirees is extremely unlikely 
under these facts. While the tax costs of taking the lump 
sum will vary from individual to individual, they will 
clearly be substantial. Because adverse selection is un­
likely, the unisex rates are likely to be substantially more 
favorable than the present rates for women, and the 
$168.75 figure in the above table would likely be consider­
ably smaller.

Finally, any contention that males would take annuities 
for fixed periods of years because they are aware of their 
shorter life spans, and thus that a significant danger of 
adverse selection remains even though the lump-sum op­
tion is ruled out as a practical source of adverse selection, 
would require very specific factual showings, based on the 
experience of insurers, which are completely absent from 
this record. The contention assumes that most men are

7 If income averaging were taken into account, assuming $15,000 
in taxable income in each of the previous four years, our rough 
calculation is that the additional Federal income tax on the lump 
sum would still exceed $80,000. A tax cost of $80,000 would leave 
John Doe with $120,897 to invest at the male rate of $7.02 per 
thousand dollars invested. His monthly payment would be $848.70, 
a figure which is $392.84 a month less than he would get from use of 
the unisex table.

as current rates for women (84^ per 
thousand dollars invested, with 
an investment of $200,897)

$168.75/month less 
than a male table 
would produce 7

Cost of taking his lump-sum payment, 
paying his taxes, and buying a male 
annuity on the open market 
($l,241.54/month less $739.65 a 
month)

$501.89/month less 
than a unisex table 
would produce



11

willing to bet that they will die early; this flies in the 
face of common understanding, just as it ignores the 
potentially strong influence of the fear of outliving one’s 
resources. The absence of record evidence, tested by 
cross-examination, on such a doubtful contention under­
scores the problems with the threadbare record on the 
defenses asserted in this case.

3. The Accuracy of the Sexually Disparate Tables 
in Measuring Longevity.

Closely related to the “actuarial value” argument is 
the claim, made here and in Manhart, that because single- 
sex mortality tables reflect real differences in longevity 
between women and men, as a group, unequal life annuity 
monthly benefits based upon such tables do not, amount to 
differences in compensation based on sex. Manhart, of 
course, flatly rejected this contention:

The Department’s argument is specious because 
its contribution schedule distinguished only im­
perfectly between long-lived and short-lived em­
ployees, while distinguishing precisely between male 
and female employees. In contrast, an entirely 
gender-neutral system of contributions and benefits 
would result in differing retirement benefits precisely 
“based on” longevity, for retirees with long lives 
would always receive more money than comparable 
employees with short lives. Such a plan would also 
distinguish in a crude way between male and female 
pensioners, because of the difference in their average 
life spans. It is this sort of disparity—and not an 
explicitly gender-based differential—that the Equal 
Pay Act intended to authorize.

435 U.S. a t 713 n.24.
Even if it were lawful to treat women as a class rather 

than individually, any employer seeking to justify the use 
of sexually disparate annuity benefits on the basis of 
greater longevity for women as a class than for men as a 
class would still have the burden of proving that its par­
ticular sexual disparities were in fact an accurate reflec-



12

tion of such greater longevity for women as a class. 
Otherwise, as the National Association of Insurance Com­
missioners points out, an inaccurate set-back figure would 
enable insurance companies to earn profits from unfair 
discrimination. Insurance Commissioners’ brief at 25.8

The briefs filed by various amici in support of petition­
ers carry the implication that the sexually disparate mor­
tality tables used by the insurance industry are based on 
scientific measurements. From the information before 
this Court, and from Census Bureau information which 
can properly be the subject of judicial notice, such an 
implication would not be correct.

None of the mortality tables used for life annuity 
benefits under the Arizona plan contains any separate 
figures for female mortality. See the exhibits to the 
Joint Stipulated Statement of Facts.0 All of them use 
male mortality figures, and set women back a number of 
years which appears to be arbitrary. Thus, a male will 
receive annuity benefits based on his actual adjusted age 
at retirement, but a woman will receive annuity benefits 
based on a male’s benefits as if the male had retired at 
an age a constant number of years younger than the 
woman’s actual adjusted age. “Thus a 65 year old woman 
is treated as being 59 years old and her monthly annuity 
based on that age, while a 65 year old male has his 
monthly annuity based on age 65.” JA 12. In the insur­
ance industry generally, the amount of the setback varies 
from plan to plan, and is commonly greater for annuities

8 While the Council argues that respondents never challenged the 
accuracy of the tables used, Council brief at 12. n.2, Arizona was the 
party attempting to justify an explicit sexual classification and it 
therefore had the burden of proving the accuracy of the tables 
used in its plan.

9 The stipulation describes the Lincoln National LIC plan as con­
taining a separate table for women, JA 12, but exhibit 3 uses only a 
male table with a setback for women. Perhaps there was an earlier 
Lincoln National LIC plan.



13

(where the setback harms women) than for life insur­
ance (where the setback helps women). The following 
table shows the differences in this supposedly “scientific” 
assessment of mortality:

Amount of Setback 
for Women on Male Source of 

Plan Mortality Tables Information
Usual annuity plan 

(setback harms women 
by giving them lower 
monthly benefits )

6 years Amiens brief of National 
Ass’n of Insurance 
Commissioners at 25

National Investor
National Investors LIC 

(presumably a different 
policy than the one de­
scribed in the stipulation)

6 years JA 12
5 years Exhibit 4, at the pages

marked GA-AA in the lower 
right corner

ITT LIC
Hartford Variable Annuity 

LIC

5 years Exhibit 7, p. 8 
4 years Exhibit 6R, p. 10

Lincoln National LIC 
Variable Annuity LIC
Usual life insurance 

plans (setback favors 
women by charging them 
lower rates )10

4 years Exhibit 3, second p. 6 
4 years Exhibit 5, p. 5
3 years Amicus brief of National 

Ass’n of Insurance 
Commissioners at 25.

To make matters worse, the U.S. Census Bureau’s 
tables for “Expectation of Life at Single Years of Age”

10 The fact that life insurance has only a three-year setback for 
women while annuities commonly utilize a much larger setback is 
of particular interest, because life insurance is commonly purchased 
during the earlier periods of life when the male/female differences 
in life expectancy are greater, and annuities are commonly pur­
chased during the later periods of life when the male/female differ­
ences in life expectancy are smallest. (See the table below). Under 
a nondiscriminatory system, one would expect to see a larger life 
insurance setback resulting In lower premiums for women, and a 
smaller annuity setback resulting in lesser reductions in monthly 
benefits: in short, one would expect to see the reverse of the present 
system.



14
make clear that female mortality cannot be set accurately 
at a constant number of years below male mortality. Sex­
ual differences in longevity decrease substantially over 
time, and using an average difference in longevity which 
is accurate for one age will greatly overstate the average 
differences in longevity at a later age. The following 
table shows the differences in longevity at various ages 
for men as a class, compared with women as a class, for 
1973 (close to Arizona’s adoption of its plan) and for 
1978 (the most recent table published) : 11

Sexual Differences in Life Expectancy 
at the Ages Stated (Female Life Ex­
pectancy Minus Male Life Expectancy)

Years of Age 1973 Data 1978 Data
25
30
35
40
45
50
55
60
65
70
75
80
85

6.9 years
6.6 years
6.4 years
6.2 years
6.0 years
5.7 years
5.3 years
4.7 years
4.1 years
3.2 years
2.3 years
1.5 years 
1.0 year

7.0 years 
6.6 years
6.5 years
6.3 years
6.1 years 
5.9 years
5.5 years
5.0 years
4.4 years
3.6 years 
2.8 years
2.0 years
1.4 years

In addition to the unfairness to individual women of 
treating women as a class and comparing them with men 
as a class, the life annuity tables for which Arizona con­
tracted did not even treat the class of women fairly. Ari­
zona’s “actuarial equivalent” argument would not have 
allowed a starting setback for women at the normal re­
tirement age of 65 greater than 4.1 years as of the time

11 1973 data: U.S. Bureau of the Census, Vital Statistics of the 
United States, 1973: Volume 11-Section 5: Life Tables, Table 5-3 
at p. 5-12 (1975). 1978 data: U.S. Bureau of the Census, Vital 
Statistics of the United States, 1978: Volume II-Section 5: Life 
Tables, Table 5-3 at p. 5-13 (1980).



15
it adopted its plan, yet the tables it agreed to use in­
cluded constant setbacks of 5 years and 6 years. Its ar­
gument would require that the tables used recognize the 
substantial narrowing of the sexual differences in average 
longevity as retirees become older, by providing only a 
maximum 3.2-year setback for those surviving to age 70, 
a 2.3-year setback for those surviving to age 75, etc., or 
by some other means. Yet the sexually disparate tables 
for which it bargained use constant setbacks. When Ari­
zona’s own argument for class-based comparisons is put 
side-by-side with its practices, it is clear that Arizona is 
requiring women as a class to subsidize men as a class.

B. Arizona’s pension plan cannot be sustained as being 
within the “open market” exception of Manhart.

The remaining contentions of petitioners and their 
amici seek to justify Arizona’s pension plan incorporating 
sex-based life annuities as simply reflective of what is 
available on the “open market” and thus within the ex­
ception enunciated in this Court’s decision in Manhart; 
or in the alternative, as nondiscriminatory because the 
“open market” does not allow Arizona to purchase unisex 
life annuities for its employees or because female workers 
may elect a nondiscriminatory “lump sum” option or an­
nuity option for a fixed term of years. Both of these ar­
guments are legally without merit and, in addition, are 
based upon erroneous factual assumptions about life an­
nuity policies available on the “open market.”

1. Arizona’s Plan Does Not Fit Within the “Open 
Market” Exception of Manhart Because the State 
Did Far More Than Allow Employees to Pur­
chase Whatever Life Annuity Policies Were 
Available on the “Open Market”.

At the end of its discussion of the liability question 
in Manhart, this Court limited the reach of its holding 
by adding:

Although we conclude that the Department’s prac­
tice violated Title VII, we do not suggest that the



16

statute was intended to revolutionize the insurance 
and pension industries. All that is at issue today is 
a requirement that men and women make unequal 
contributions to an employer-operated pension fund. 
Nothing in our holding implies that it would be un­
lawful for an employer to set aside equal retirement 
contributions for each employee and let each retiree 
purchase the largest benefit which his or her accum­
ulated contributions could command in the open 
market. Nor does it call into question the insurance 
industry practice of considering the composition of an 
employer’s work force in determining the probable 
cost of a retirement or death benefit plan.

435 U.S. at 717-18 (footnotes omitted). Petitioners and 
their amici contend that Arizona’s plan fits within this 
“open market” exception to Manhart’s interpretation of 
Title VII, but their argument gives this exception a sig­
nificance out of all proportion to its function in Manhart.

Though self-evident, it bears noting that Arizona did 
not offer its employees the type of pension arrangement 
described by the Court in Manhart. It did not offer all 
employees, male and female, only the opportunity to take 
a lump-sum payout at retirement which the employees 
would then have to convert to a life annuity on the “open 
market.” Nor did it inform its employees that they could 
elect payout in the form of whatever life annuity they 
could contract for on the “open market” at the time they 
elected to participate in the plan. Instead, the state ap­
paratus affirmatively selected a limited number of life 
annuity plans—all based on single-sex mortality tables'— 
to make available to its employees. Thus, even if a fe­
male employee of the state were able to find an annuity 
based on a unisex mortality table on the “open market,” 
she is precluded under the Arizona plan from electing 
that payout option if it is not one of the plans or com­
panies pre-selected by the Governing Committee. The ad­
vantages of tax deferral after the age of retirement and 
of group bargaining power are thus lost to the individual



17

employee who seeks to avoid the discrimination inherent 
in sex-based annuity tables.

It is one thing for an employer to institute a retire­
ment savings plan, return accumulated contributions to 
each employee at retirement, and allow each retiree to do 
with the savings whatever he or she wishes, without any 
further contact from the employer. It is quite another 
thing for the employer to adopt a plan limiting the choices 
of its employees, and in that process contract for only 
one type of life annuity with explicitly discriminatory 
conditions, thus imposing a heavy burden in lost tax de­
ferral or reduced security for any woman desiring to 
avoid the explicit sexual discrimination. Manhart’s im­
munity for the employer who merely makes available the 
“open market” to its retirees simply does not cover the 
conduct at issue here.

Petitioners’ related argument that they did not intend 
to discriminate because the insurance companies with 
which they contracted, rather than the state, initiated 
the sexually disparate benefit tables for life annuities, is 
equally groundless. It is settled law that both parties to 
a discriminatory contract are liable for any discrimina­
tory provisions which it contains, regardless of who init­
ially sugested the discriminatory provisions.12

Petitioners also deny intent on the basis of the decision 
in Personnel Administrator of Massachusetts v. Feeney, 
442 U.S. 256 (1979), but that case emphasized the ab-

12 The leading- case is Robinson v. Lorillard Corp., 444 F.2d 791, 
799 (4th Cir.), cert, dismissed, 404 U.S. 1006 (1971). See also 
Williams v. New Orleans Steamship Ass’n, 673 F.2d 742, 750-51 
(5th Cir. 19&2); Williams v. Owens-Illinois, 665 F.2d 918, 926 
(9th Cir., 1982); Farmer v. ARA Services, 660 F.2d 1096, 1104 (6th 
Cir., 1981); Grant v. Bethlehem Steel Corp., 635 F.2d 1007, 1014 
(2nd Cir., 1980), cert, den., 452 U.S. 940 (1981); United States v. 
N.L. Industries, 479 F.2d 354, 379-80 (8th Cir., 1973) ; Rosen v. 
Public Service Electric and Gas Co., 477 F.2d 90, 95 (3rd Cir., 1973), 
and cases there cited.



18
sence of an explicit gender-based classification in finding 
that there was no discriminatory purpose. 442 U.S. at 
267-69, 273-74. In the absence of such a classification, it 
was necessary to look further for evidence of discrimina­
tory intent. The case does not help petitioners, because 
the discrimination here was explicit.

Finally, petitioners urge that the district court did not 
find discriminatory purpose. The statement of the dis­
trict court was that the petitioners’ agreement with the 
insurers “is somewhat less than the purposeful invidious 
gender-based discrimination necessary for a finding that 
the compensation plan violates the equal protection clause”. 
Pet. App. A-21. With respect, the district court erred 
on the applicable standard for determining discrimina­
tory intent. No showing of malevolance—of specific in­
tent to injure the disfavored sex—is required. In Missis­
sippi University for Women v. Hogan, -----  U.S. ------,
73 L. Ed. 2d 1090, 1098 (1982), this Court held that even 
a motive to protect women may result in a violation of 
the equal protection clause. The “recitation of even a 
benign, compensatory purpose” may not be enough to save 
a facially discriminatory provision. 73 L. Ed. 2d at 1100, 
quoting Weinberger v. Wiesenfeld, 420 U.S. 636, 648 
(1975). Here, the gender classification harms women. 
Petitioners cannot escape the conclusion that they have 
intentionally discriminated against women.

2. Arizona’s Plan Does not Reflect the “Open 
Market,” Because the State Could Have Con­
tracted for Unisex Table Life Annuities.

Apparently recognizing that Arizona’s pension scheme 
does not come within the literal language of the Manhart 
“open market” exception, petitioners and their amici 
nevertheless contend that the plan should be sustained 
under Title VII because it is the functional equivalent of 
the exception in assertedly offering employees a fair re­
flection of what is available on the open market. See, e.g., 
Petitioners’ Brief at pp. 14-15. In essence, petitioners 
raise an affirmative defense of impossibility, and it was



19
accordingly their burden to adduce evidence supporting 
the defense.13 If that evidence is not contained in this 
record, then the judgment below must be sustained.

13 When any defendant seeks to set up an affirmative defense, 
it has the burden of persuasion in establishing the facts on which 
the defense rests. Vance v. Terrazas, 444 U.S. 252, 269 n .ll  (1980) 
(“duress is an affirmative defense to be pleaded and proved by the 
party attempting to rely on it” ) ; United States v. Phosphate Ex­
port Ass’n, 393 U.S. 199, 203 (1968) (a party raising the defense 
of mootness has a “heavy burden of persuasion”) ; Guzman v. 
Pichirilo, 369 U.S. 698, 700 (1962) (an owner attempting to escape 
liability for the unseaworthiness of his vessel by showing that he 
has been relieved of his obligation “has the burden of establishing 
the facts which give rise to such relief”) ; United States v. Poland, 
251 U.S. 221, 227-28 (1920) (status as a bona fide purchaser “is an 
affirmative defense which he must set up and establish.” ).

In Title YII cases, the contention that a challenged test or edu­
cational requirement is job-related raises an affirmative defense, 
and the employer then has the burden of persuasion in proving the 
validity of the practice. Albemarle Paper Co. v. Moody, 422 U.S. 
405, 425-36 (1975); Griggs v. Duke Power Co., 401 U.S. 424, 431- 
36 (1971). An employer with a facially sexually discriminatory 
policy of refusing to employ women in particular positions has the 
burden of proving a bona fide occupational qualification. E.g., 
Hardin v. Stynchcomb, 691 F.2d 1364, 1370-72 (11th Cir. 1982), 
and cases there cited.

It is clear that the burden in question is a burden of persuasion 
and not merely the burden of production or of articulation discussed 
in Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248 
(1981). In Griggs, the employer rested on testimony articulating 
the company’s judgment that the challenged requirements would 
generally improve the overall quality of the work force. This Court 
rejected the articulation as insufficient and held that “Congress has 
placed on the employer the burden of showing that any given 
requirement must have a manifest relationship to the employment 
in question.” 401 U.S. at 431-32. Similarly, the degree of the 
factual detail Albemarle held employers must show in order to 
establish validity is inconsistent with a mere requirement of pro­
duction or of articulation. 422 U.S. at 431-36. In Connecticut v. 
Teal, 73 L.Ed. 2d a t 140, this Court stated that respondents’ rights 
were violated by the challenged test “unless petitioners can demon­
strate that the examination given was not an artificial, arbitrary, 
or unnecessary barrier” by proving it was valid. (Emphasis sup­
plied) .



20

The affirmative defense of impossibility raised by Ari­
zona requires at a minimum three factual showings: (1) 
that no companies offered unisex life annuity benefits,
(2) if so, that Arizona’s bargaining power would not 
have been sufficient to induce companies not then offering 
such benefits to agree to provide them to Arizona, and
(3) if so, that there would have been no other means by 
which Arizona could have offered life annuities to its 
employees on the basis of equal monthly payments for 
men and women of the same age.

Arizona’s sole factual support for its impossibility con­
tention rests on a strained reading of the parties’ agreed 
factual statement.14 After a detailed discussion of the 
specific named companies Arizona had selected for inclu­
sion in its plan, JA 7, after a discussion of the additional 
named companies added to the plan or dropped from it, 
JA 8-9, after a description of the exhibits to the agreed 
statement containing the specific provisions offered by 
these named companies {Id.), and after a generalized de­
scription of the life annuities offered by the named com­
panies participating in the plan, there is a paragraph 
containing the isolated sentence on which Arizona pins 
all its hopes, JA 10. This paragraph begins by referring 
to the “mortality tables which are published in the con­
tract with the particular company”, and continues in 
pertinent part :

. . . The amounts received are determined by the 
use of actuarial tables published by the particular 
company. All tables presently in use provide a

14 In their Reply in support of their petition for certiorari, peti­
tioners sought to draw comfort from the statement in the district 
court by an attorney for respondents that he did not know whether 
there were companies in Arizona prepared to offer plans based on 
unisex tables. Reply at 2. Petitioners have wisely chosen not to 
rely on this statement in their brief on the merits; a confession 
of this lack of knowledge by plaintiffs’ counsel does come close to 
satisfying the defendant’s burden of proving impossibility.



21
larger sum to a male than to a female of equal age, 
account value and any guaranteed payment period.

JA 10. Arizona stresses the second sentence in the above 
quotation, insisting that it refers to all life annuity tables 
in existence, not merely to the tables in the plans it ap­
proved.16. Respondents disagree.16

Seen in context, the normal and natural meaning of the 
stipulation is only that the tables used in the plans ap­
proved by petitioners are sexually disparate. Cf. Lynch v. 
Alworth-Stephens Co., 267 U.S. 364, 370 (1925) (“the 
plain, obvious and rational meaning of a statute is always 
to be preferred to any curious, narrow, hidden sense that 
nothing but the exigency of a hard case and the ingenuity 
and study of an acute and powerful intellect would dis­
cover.” ), quoted in Chandler v. Roudebush, 425 U.S. 840, 
848 (1976).

The amicus brief of the American Council of Life In­
surance (“Council”) states at 10 and 24 that the Council 
“is not aware of any private insurance companjr which 
offers an annuity plan which does not- calculate benefits 
according to sex-specific mortality tables.” Arizona’s 
reply in support of its petition for certiorari-—but not its 
brief on the merits—relies on a similar statement by the 
Council in its amicus brief to the Ninth Circuit to sup­
port its defense of impossibility. Putting aside the seri­
ous question whether an affirmative defense can ever be 
established in the absence of any facts of record what­
soever, simply on the basis of a statement in an amicus 
brief, the Council’s statement is insufficient to establish 
even the first of the three showings Arizona would 
logically have to make in order to sustain its impossibility 
defense. First, if the Council’s statement means that it

15 As if hopeful that mere repetition would make the assertion 
stick, Arizona has repeated this representation in its Brief at 3, 
5, 9, 11, 14, 15, 17, 20, 26, and 27.

16 See respondents’ Opposition to the petition for certiorari at 1.



22

is unaware of any insurance companies willing to pro­
vide employers with group life annuity plans based on 
unisex tables, its knowledge is demonstrably incomplete. 
The Lincoln National Life Insurance Company—one of 
the companies used by Arizona in its plan—has informed 
amici in response to a telephone call that, if the potential 
customer’s business is large enough, it is willing to provide 
group life annuities providing the same monthly annuity 
payments to men and women of the same age who have 
invested the same amounts. It does this on the basis of 
unisex tables which take into account the ratio of male 
employees to female employees.17 Moreover, the Minnesota 
Mutual Life Insurance Company and the Northwestern 
National Life Insurance Company provide group life an­
nuities to faculty members of the University of Minne­
sota, based on unisex tables providing equal monthly 
benefits for men and women of the same age who invest 
the same amounts.18 Arizona’s plan allowed for the use 
of out-of-State insurance companies,19 and there is no rea-

17 See the affidavit of Richard T. Seymour, lodged with the Clerk. 
See n. 20, infra.

18 The Chronicle of Higher Education, Vol. 25, No. 7, October 13, 
1982, at 25-26.

1&Rule R2-9-07(A) of the Governing Committee for Tax De­
ferred Annuity and Deferred Compensation Plans, Exhibit 1 to the 
Joint Stipulated Statement of Facts, imposes no geographic limita­
tions on the insurance companies offering annuities under the plan. 
By contrast, part (B) of that rule limits the banks, savings and 
loan associations and credit unions offering savings accounts under 
the plan to those having their principal offices in Arizona. Licenses 
to do business within a State are, of course, necessary, but these 
are not difficult to obtain. In point of fact, all of the insurance 
companies offering life annuities under the plan have their corporate 
headquarters outside of Arizona. Lincoln National LIC’s home 
office is in Fort Wayne, Indiana (Exhibit 3); National Investors 
LIC’s home office is in Little Rock, Arkansas (Exhibit 4) ; Variable 
Annuity LIC’s home office is in Houston, Texas (Exhibit 5); Hart­
ford Variable Annuity LIC is a South Carolina company with



23

son to suppose that Arizona could not have obtained sim­
ilar annuities either from Lincoln National or from the 
companies doing business with the University of Minne­
sota. Second, if the Council’s statement be taken to mean 
only that sex-specific mortality tables would have to be 
considered in setting up the overall level of benefits under 
a unisex table,20 this would still not offer a legal defense 
for Arizona’s explicit agreement for lesser monthly bene­
fits to women.

Neither Arizona nor the amici which have filed briefs 
in its support have addressed the other facts essential to a 
showing of impossibility. The Council emphasizes that 
the market power of Arizona and of other employers en­
ables them to bargain for—and to obtain—annuity bene­
fits substantially better than those available to individuals. 
Brief at 24. No reason appears why Arizona could not 
have bargained for, and obtained, tailor-made life an- 
nuity plans which offered equal monthly payments to 
men and women. Arizona has not even tried to show that 
it raised the question in its bargaining.

executive offices at Hartford, Connecticut (Exhibit 6R ); and ITT 
Life Insurance Corporation’s home office is in Thorp, Wisconsin 
(Exhibit 7).

20 Manhart recognized this possibility, 435 U.S. at 718. The 
Council recognizes this possibility although it is worried by the 
problem of possible fluctuation in workforce composition, Brief at 
21-22. The American Academy of Actuaries (“Academy”) by con­
trast, urges that provision of equal monthly life annuity payments 
would cause little difficulty or expense in the larger defined benefit 
plans, even asserting that the “normal” monthly pension benefit 
is already equal for similarly situated men and women. Brief at 
19-20, 22-23. Its concern is with smaller defined benefit plans, but 
no reasons appear in its brief why smaller employers could not be 
combined into larger groups for purposes of risk-pooling, as is 
done with health insurance. Moreover, the larger the plan, the less 
risk of sharp fluctuations in male/female ratios. Council Brief at 
21 n.12. The Academy seems to state that an affirmance of the 
Ninth Circuit would cause little problem for defined-contribution 
plans, except for the problem of adverse selection. Brief at 16-18.



24

Nor has Arizona shown that it had no choice but to Use 
existing insurance companies to provide annuities. 
Other devices, such as the establishment of a State gov­
ernmental corporation to sell annuities and make monthly 
benefits, may have been feasible. Arizona has simply not 
met its burden.21

Petitioners are also precluded, as a matter of law, from 
seeking to justify the inclusion of the discriminatory life 
annuity option in their plan on the basis of the “lump 
sum” payout option available to women enrolled in the 
plan. From the above discussion, it is clear that the lump­
sum option imposes a heavy price on its exercise. The 
option of an annuity for a fixed period of years should be 
even less attractive for women than for men. Neither of 
these payout alternatives constitutes a nondiscriminatory 
option available to women which can sustain Arizona’s 
pension plan.

Just last Term, this Court held that a male was suf­
ficiently disadvantaged by a rule barring men from a 
State-supported nursing school in his hometown to be able 
to mount a challenge to the rule under the Equal Pro­
tection Clause. He had the “nondiscriminatory option” 
of attending a different State-supported nursing school in 
a different area, but would be disadvantaged by the in­
convenience of having to drive “a considerable distance” 
from his home and by being deprived of credit for ad­
ditional training working while attending school. Mis­
sissippi University for Women v. Hogan, 78 L. Ed. 2d at 
1098 n.8. The so-called “nondiscriminatory option” here

21 As. to the claims of “revolution”, the brief of the American 
Academy of Actuaries—which takes no position on the ultimate issue 
herein—makes clear that the insurance and pension industries can 
accommodate an affirmance of the Ninth Circuit, as long as the de­
cisions of the courts take into account the effects of differences 
in various types of pension and annuity benefits. This can. best be 
done on a case-by-case basis, inasmuch as variations among plans 
seem to be legion.



25

would involve far greater cost or, in the case of fixed- 
term annuities, far less security, than the challenged 
option. The disadvantages here are much more substan­
tial than those found sufficient for the challenge in 
Hogan.

IL BECAUSE MANHART  GAVE EMPLOYERS ADE­
QUATE WARNING OF THE TITLE VII REQUIRE­
MENTS FOR PENSION PLANS, THE AWARD OF 
MONETARY RELIEF BELOW WAS JUST AND 
PROPER.

It seems evident that an intentional discriminator has 
no good objection to the entry of a back pay award 
against it. While Arizona argues that one of the purposes 
of the program was to take advantage of tax incentives 
while avoiding any non-administrative expense to the 
State, the way to achieve that goal was to have avoided 
unlawful discrimination.22

Arizona’s objection to a back pay award is further 
undermined by its having ignored the extraordinary 
“grace period” this Court allowed employers with dis­
criminatory pension schemes in Manhart. The Court 
stated that there was no reason to believe that employers 
would have failed to abide by Title VII if they had under­
stood the law’s application to pension systems, and added:

There is no reason to believe that the threat of a 
backpay award is needed to cause other administrators 
to amend their practices to conform to this decision.

435 U.S. at 720-21. If Arizona had heeded the necessary 
application of the Manhart decision to discriminatory

22 The expense of a monetary recovery will in any event be light; 
the plan is a relatively new one and only four women selecting 
the life annuity option had retired as of the time of the stipu­
lation. JA 6.



26

benefits and had cleared up its problem within a reason­
able time after announcement of the decision, it would 
clearly have been entitled to a clean slate in terms of 
monetary relief.

Like most other employers, however, Arizona decided 
to ignore this Court’s offer of a grace period and to fight 
every step of the way against conforming its policies to 
the requirements of Title VII.23 The certain prospect of 
back pay relief is as essential to obtain compliance in the 
area of annuity benefits as it is in other areas of em­
ployment.

Manhart’s denial of back pay was based on a premise 
shown by experience to have been faulty. To allow an­
other grace period would reward intransigence and dimin­
ish respect for the law’s demands. To give recalcitrant 
employers such as Arizona even the benefit of a grace 
period to the date of the Manhart decision would give to 
employers who have proven their recalcitrance a benefit 
based on an assumption of good faith. This would ef­
fectively postpone the effective date of Title VII to the 
date of the Manhart decision and frustrate the purposes 
of Title VII.

28 Despite the 1978■.'decision of this -Court in Manhatrt, and despite 
the 1981 decision of the Southern District of New York that such 
practices are illegal, for example, the City of New York still de­
ducts a higher percentage of its female employees’ pay than, of 
similarly situated male employees’ pay for its retirement plan, and 
still provides lower monthly retirement allowances to female retirees 
than to similarly situated male retirees over the course of their 
lives. See Women in City Government United v. City of New York, 
515 F.Supp. 295 (S.D.N.Y. 1981).



27

CONCLUSION

The judgment of the Ninth Circuit should be affirmed.

Respectfully submitted,

Maximilian W. Kempner 
R ichard C. Dinkelspiel 

Co-Chairmen 
N orman Redlich 

Trustee
W illiam L. Robinson 
N orman J. Chachkin 
Beatrice Rosenberg 
R ichard T. Seymour * 

Attorneys
Lawyers’ Committee for 

Civil Rights Under Law 
520 Woodward Building 
733 Fifteenth Street, NW. 
Washington, D.C. 20005 
(202) 628-6700

J ack Greenberg 
J ames M. Nabrit, III 
NAACP Legal Defense and 

Educational Fund, Inc.
10 Columbus Circle 
Suite 2030
New York, New York 10019 
(212) 586-8397
Barry L. Goldstein 
NAACP Legal Defense and 

Educational Fund, Inc.
806 Fifteenth Street, N.W. 

Suite 940
Washington, D.C. 20006 
(202) 638-3278 
Attorneys for Amici Curiae
* Counsel of RecordJanuary 7,1983