Phillips v. Martin Marietta Corporation Petition for Writ of Certiorari

    In the

(Enurt nf the ilnttpfr States
October Term, 1969 

No. ...........

I d a  P h i l l i p s , 

—v.—
Petitioner,

Martin Marietta Corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

Jack Greenberg 
James M. Nabrit, III  
N orman C. A maker 
W illiam L. R obinson 
L owell J ohnston 
V ilma M artinez Singer 

10 Columbus Circle 
New York, New York 10019

E arl M. Johnson
625 West Union Street 
Jacksonville, Florida 32202

Attorneys for Petitioner

George Cooper 
435 West 116th Street 
New York, New York 

Of Counsel



I N D E X

PAGE

Opinions B elow ...................................................................  1

Jurisdiction .........................................................................  2

Question Presented.............................................................  2

Statutory Provisions Involved ........................................  2

Statement of the Case ........................................................ 4

Reasons for Granting the Writ ......................................  4

I. The Decision Below Is Based Upon An Er­
roneous Interpretation of Title V II of the 
Civil Rights Act of 1964 Which Impairs Its 
Effectiveness and Conflicts in Principle With 
Other Court of Appeals Decisions ................... 5

II. The Principle Established by the Court of 
Appeals Decision Threatens the Effectiveness 
of the Entire Federal Fair Employment Law 9

Conclusion ...........................................................................  12

Appendix—

Opinion of the District C ourt..................................  la

Opinion of the United States Court of Appeals.....  4a

Per Curiam Opinion Denying Rehearing................. 12a



11

A uthorities Cited

page

Cases:

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

Cox v. United States Gypsum Co., 284 F. Supp. 74 
(N.D. Ind. 1968) ............................................................ 9

International Chemical Workers Union v. Planters 
Mfg. Co., 259 F. Supp. 365 (N.D. Miss. 1966) ...........  9

Local 53, Heat & Frost Insulators Workers v. Vogler,
407 F.2d 1047 (5th Cir. 1969) ......................................  7,8

Papermakers Local 189 v. United States, 416 F.2d 980 
(5th Cir. 1969) .................................................................  8

Udall v. Tallman, 380 U.S. 1 (1965) ................................  9
United States v. Sheet Metal Workers, Local 36, 416 

F.2d 123 (8th Cir. 1969) ..................................................  8

Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 
(5th Cir. 1969) .................................................................  6

Statutes:

28 U.S.C. § 1254(1) .............................................................  2

42 U.S.C. § 2000e-2(a) ........................................................ 2,5

42 U.S.C. § 2000e-2(e) ........................................................ 3,6

Miscellaneous:

110 Cong. Rec. 7213 (1964) 7



I ll

PAGE

Cooper and Sobol, Seniority and Testing Under Fair 
Employment Laics: A General Approach to Objec­
tive Criteria of Hiring and Promotion, 82 Harv. L.
Rev. 1598 (1969) .............................................................  7

Employment, Race and Poverty (Ross & Hill eds. 1967) 11
Equal Employment Opportunity Commission, Sex Dis­

crimination Guidelines, 29 C.F.R. §§ 1604.1(a), 
1604.2, 1604.3 ................................................................. 7,8-9

First Annual Digest of Legal Interpretations of EEOC, 
CCH Empl. Prac. Guide, 17,251.043 (Oct. 22, 1965)

H. R. Rep. No. 914, 88th Cong., 1st Sess. (1963)............. 7

Opinion of the General Counsel of the EEOC, CCH 
Empl. Prac. Guide 1219 ..............................................  9

Peterson, Working Women, 93 Daedalus 671 (1964) .... 11

Rosenfeld and Perrella, Why Women Start and Stop 
Working: A Study in Mobility, Monthly Labor Re­
view, Sept. 1965 .............................................................. 10

U. S. Department of Labor, Bull. No. 290, 1965 Hand­
book on Women Workers (1965) ...............................10,11



I n  the

i ’ltjin'm? (Hmtrt of tip ‘Hmtefc Stairs
October T erm, 1969 

No..............

Ida P hillips,

—v.-
Petitioner,

Martin M arietta Corporation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

The petitioner Ida Phillips respectfully prays that a writ 
of certiorari issue to review the judgment and opinion of 
the United States Court of Appeals for the Fifth Circuit 
entered in this proceeding on May 26, 1969.

Opinions Below

The opinion of the Court of Appeals is reported at 411 
F.2d 1 and is reprinted in the Appendix. The Denial of 
rehearing and accompanying dissent of Chief Judge Brown 
and Judges Ainsworth and Simpson, not yet reported, and 
the opinion of the District Court for the Middle District of 
Florida, also not reported, appear in the Appendix.



2

Jurisdiction

The judgment of the Court of Appeals for the Fifth 
Circuit was entered May 26, 1969. A timely request for 
rehearing, initiated by a member of the Court, was denied 
October 13, 1969, and this petition for certiorari was filed 
within 90 days of that date. This Court’s jurisdiction is 
invoked under 28 U.S.C. §1254(1).

Question Presented

Whether the sex discrimination prohibition of § 703, 
Civil Rights Act of 1964, is violated by refusal to hire all 
women with preschool children while hiring men of the 
same class, where the distinction does not purport to be 
based on a bona fide occupational qualification.

Statutory Provisions Involved

United States Code, Title 42 

§2000e-2(a) [§703(a) of Civil Rights Act of 1964]

(a) It shall be an unlawful employment practice for 
an employer—

(1) to fail or refuse to hire or to discharge any indi­
vidual, or otherwise to discriminate against any indi­
vidual with respect to his compensation, terms, condi­
tions, or privileges of employment, because of such 
individual’s race, color, religion, sex or national origin; 
or

(2) to limit, segregate, or classify his employees in 
any way which would deprive or tend to deprive any 
individual of employment opportunities or otherwise 
adversely affect his status as an employee, because of



3

such individual’s race, color, religion, sex, or national 
origin.

§2000e-2(e) [§703(e) of Civil Rights Act of 1964]

(e) Notwithstanding any other provision of this title, 
(1) it shall not be an unlawful employment practice 
for an employer to hire and employ employees, for an 
employment agency to classify, or refer for employ­
ment any individual, for a labor organization to classify 
its membership or to classify or refer for employment 
any individual, or for an employer, labor organization, 
or joint labor-management committee controlling ap­
prenticeship or other training or retraining programs 
to admit or employ any individual in any such program 
on the basis of his religion, sex, or national origin in 
those certain instances where religion, sex, or national 
origin is a bona fide occupational qualification reason­
ably necessary to the normal operation of that particu­
lar business or enterprise, and (2) it shall not be 
an unlawful employment practice for a school, college, 
university or other educational institution or institu­
tion of learning to hire and employ employees of a 
particular religion if such school, college, university, or 
other educational institution or institution of learning 
is, in whole or in substantial part, owned, supported, 
controlled, or managed by a particular religion or by 
a particular religious corporation, association, or soci­
ety, or if the curriculum of such school, college, uni­
versity, or other educational institution or institution 
of learning is directed toward the propagation of a 
particular religion.



4

Statement of the Case

Ida Phillips, the petitioner, applied for an Assembly- 
Trainee job with Martin Marietta Corporation, the respon­
dent (hereinafter “ Martin” ). She had a high school back­
ground, the only specified prerequisite to the job. How­
ever, Martin refused to accept her application, stating that 
it did not hire women with “pre-school age children” for 
this job, although men with pre-school children were hired. 
Moreover, it does not appear that respondent hires women 
whose pre-school children may be cared for, for example, 
by a grandmother or older sibling or day care center. Nor, 
does respondent apparently even inquire concerning 
whether a male applicant for employment is a widower 
with a pre-school child or whether the wife of a married 
employee with a child is employed or otherwise not in 
full-time charge of the child.

Mrs. Phillips complained that this constituted unlawful 
sex discrimination under the Civil Rights Act of 1964. The 
District Court struck her allegations regarding the pre­
school children rule as “ irrelevant and immaterial” and 
ruled for Martin on summary judgment when she could 
introduce no other evidence of sex discrimination. The 
Court of Appeals affirmed, holding that this discrimination 
“based on a two-pronged qualification, i.e., a woman with 
pre-school age children” was not discrimination because of 
sex within the meaning of the Act.

Reasons for Granting the Writ

The decision below is based upon an illogical interpreta­
tion of the Civil Rights Act of 1964 which impairs its effec­
tiveness and which conflicts in principle with other Court 
of Appeals decisions. Although the case involves only dis­



5

crimination against women, its effect upon the substantial 
number of Negro women in the work force makes the de­
cision particularly important with respect to the racial 
discrimination provisions of the law. Moreover, the princi­
ple established below threatens the effectiveness of the en­
tire Federal equal employment law. In the words of Chief 
Judge Brown (dissenting), if the “ sex-plus” rule of this 
case stands, “ the Act is dead.” Appendix, at 18a. It is 
important, moreover, that this issue be promptly resolved, 
to protect the credibility of the regulations of the Equal 
Employment Opportunity Commission which are directly 
contradicted by the decision below.

I.
The Decision Below Is Based Upon an Erroneous In­

terpretation of Title VII of the Civil Rights Act of 1964  
Which Impairs its Effectiveness and Conflicts in Prin­
ciple With Other Court of Appeals Decisions.

The prohibition against sex discrimination in Title VII 
of the Civil Rights Act of 1964 does not prohibit only flat 
refusals to hire women. It is unlawful for an employer 
“ otherwise to discriminate” against women. See §703(a), 
42 U.S.C. §2000e-2(a). The District Court attempted to 
justify its decision by stating that:

“ The responsibilities of men and women with small 
children are not the same, and employers are entitled 
to recognize these different responsibilities in establish­
ing hiring policies.” 1

While it may be argued that because a woman might have 
special responsibilities toward her children she may be 
treated differently in hiring, this fails to take account of 1

1 See Appendix, p. 2a, infra.



6

the situation where peculiar responsibilities do not in fact 
affect job performance. Martin will not hire women with 
pre-school children if there is a grandmother or older sister 
at home to care for them, or if a day care center fulfills 
that purpose. Nor will it hire women with pre-school 
children even if their husbands are at home unemployed 
(as often occurs because of lay-off or disability).2 Martin 
will apparently hire widowers with pre-school children, but 
not widows. It will apparently hire men with pre-school 
children even if their wives are already employed elsewhere. 
The Martin rule makes no attempt to assess family respon­
sibility in any objective way. The use of such stereotypes 
is, we submit, the essence of unlawful discrimination pro­
hibited by Title VII.

The reasoning of the District Court would have some 
merit only if there were differing responsibilities which 
affected the job performance of women workers. Martin 
might then take account of job performance needs in two 
ways:

1. The Act enables an employer to impose a differ­
ent hiring standard for women where the standard is 
shown to be a “bona fide occupational qualification rea­
sonably necessary to the normal operation of that par­
ticular business” (sometimes referred to as BFOQ) 
under section 703(e), 42 U.S.C. §2000e-2(e). See Weeks 
v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (5th Cir. 
1969).

2. Where a BFOQ cannot be established, there is 
another lawful way that an employer can take account 
of family responsibilities. This is through use of a 
neutral, not sex based, rule regarding such responsi­

2 Seven percent of working women have husbands who cannot 
work. See no. 9, infra.



7

bilities. For example, if an employer can show that 
the family responsibilities of a spouse who is the sole 
caretaker of children makes such a person an unreli­
able employee, the employer may consider a general 
hiring rule that bars jobs to all spouses who are sole 
caretakers—including widowers as well as widows, and 
taking into account child care arrangements. This 
would be neutral and would deal with the specific 
problem which concerned the employer.3 Only the 
slightest change in employee hiring questionnaires 
would be necessary.

However, Martin has not attempted use of either provision. 
Martin did not urge a BFOQ defense or even claim that 
mothers of pre-school children are poor performers on the 
job.4 Nor has Martin attempted to apply a neutral standard 
in this case.

Title VII prohibits double standards, i.e., any practice 
which unequally restricts the job opportunities of women 
or which imposes a burden on women not equally imposed 
on men. See Bowe v. Colgate-Palmolive Co., 416 F.2d 711 
(7th Cir. 1969); Equal Employment Opportunity Commis­
sion Sex Discrimination Guidelines, 29 C.F.R. §§ 1604.2,

3 Even a neutral rule should be supported by evidence of busi­
ness need to prevent its use as a device to discriminate against 
women. See Local 53, Heat & Frost Insulators Workers v. Vogler, 
407 F.2d 1047 (5th Cir. 1969); Cooper and Sobol, Seniority and 
Testing Under Fair Employment Laws: A General Approach to 
Objective Criteria of Hiring and Promotion, 82 Harv. L.Rev. 1598, 
1669-73 (1969).

4 It is doubtful that Martin could establish a BFOQ defense in 
this case. The BFOQ exception should be read with a narrow scope 
to prevent it from violating the law against sex discrimination. 
See 110 Cong. Rec. 7213 (1964) ; H.R. Rep. No. 914, 88th Cong., 
1st Sess. (1963) ;  Equal Employment Opportunity Commission 
Sex Discrimination Guidelines, 29 C.F.R. §1604.1 (a) (1968). The 
point, here, however, is that Martin has not even claimed that the 
defense is applicable.



8

1604.3; cf. Local 53, Heat & Frost Insulators Workers v. 
Vogler, 407 F.2d 1047 (5th Cir. 1969) (race discrimination); 
Papermakers Local 189 v. United States, 416 F.2d 980 (5th 
Cir. 1969) (race discrimination); United States v. Sheet 
Metal Workers, Local 36, 416 F.2d 123 (8th Cir. 1969) (race 
discrimination). The practice challenged in this case is a 
patent violation of this law.

The Court of Appeals justified its decision somewhat dif­
ferently from the District Court. It reasoned that Mrs. 
Phillips had not been excluded because of sex but rather be­
cause of “ sex plus,” a two-pronged test: (1) being female 
and (2) having pre-school children, which coalesced in her 
case, and that such two-pronged tests did not constitute un­
lawful discrimination.5 However, this would make sense 
only if the law were limited to flat refusals to hire women. 
Since the law also prohibits extra burdens on women, it 
should be clear that “ sex plus” rules are unlawful. Any 
rule having sex as one of its factors clearly makes it more 
difficult for women to obtain jobs than men.6 The Commis­
sion’s Guidelines and its rulings make clear that “ sex plus” 
is a violation of Title VII. See Sex Discrimination Guide­

6 See Appendix pp. 9a-10a, infra.
6 The Court of Appeals also relied on evidence that Martin had 

hired a high percentage of female Assembly-Trainees (75 -80% ). 
But, of course, no specific percentage of female employees can per 
se prove no discrimination. W e do not claim that Martin dis­
criminated against all women, but only that it discriminated 
against a class of women. There are dozens of reasons why a high 
percentage of women might be employed in spite of the fact that 
an employer is discriminating against one class of women. For 
example, the job might be one which appeals to women or one for 
which women tend to he more qualified. Thus no particular con­
clusion regarding discrimination can be drawn from the high per­
centage of females in the position. The only relevant point is 
that the percentage presumably would and should have been even 
higher had Martin not applied its discriminatory pre-school chil­
dren rule which screened out a large group of women from con­
sideration.



9

lines, 29 C.F.R. § 1604.3; Gen.Counsel Opinion Letter, Sept. 
9, 1965, in CCH Empl. Prac. Guide fl 1219.29. The Commis­
sion filed a brief as amicus curiae in this case in the Court 
of Appeals urging reversal of the District Court decision 
and filed a supplementary amicus brief supporting a re­
hearing in the Court of Appeals.

The Court of Appeals’ rejection of the Commission’s 
position is inconsistent with established principles calling 
for deference to the contemporaneous interpretations of an 
agency charged with enforcement of a complex law. Udall 
v. Tollman, 380 U.S. 1, 16 (1965). This principle has un­
usual importance in the case of the Equal Employment Op­
portunity Commission. Cox v. United States Gypsum Co., 
284 F.Supp. 74, 78 (N.D. Ind. 1968); International Chem. 
Workers Union v. Planters Mfg. Co., 259 F.Supp. 365, 366- 
67 (S.D. Miss. 1966). As an agency with no coercive en­
forcement powers, the Commission is uniquely dependent 
on credibility and persuasion in accomplishing its goals.

n.
The Principle Established by the Court of Appeals 

Decision Threatens the Effectiveness of the Entire Fed­
eral Fair Employment Law.

In dissenting from denial of rehearing, Chief Judge 
Brown, joined by Judges Ainsworth and Simpson, warned:

“If ‘sex plus’ stands, the Act is dead.” 7

It is not difficult to see why. Under the Court of Appeals 
reading, an employer would be free to impose extra educa­
tional requirements on women not imposed on men, to 
require women to pass special tests not given to men, and

7 See Appendix, p. 18a, infra. The rehearing request was brought 
on sua sponte by members of the court.



10

to meet an infinite variety of other extra standards from 
which men would be exempted. All of this could be justified 
on the ground that the discrimination was not against 
women as such, but rather only against those women who 
did not meet the special standard, and that this is “ sex- 
plus.”  Moreover, if “ sex plus” is not sex discrimination, 
then it is difficult to understand why “ race-plus” is not 
exempted from the race discrimination prohibition in the 
Act. Thus the “ sex plus” rule in this case sows the seeds 
for future discrimination against black workers through 
making them meet extra standards not imposed on whites.

Even if the “ sex plus”  rule is not expanded, in its nar­
row application to mothers of pre-school children it will 
deal a serious blow to the objectives of Title VII. If the 
law against sex discrimination means anything it should 
protect employment opportunities for those groups of 
women who most need jobs because of economic necessity. 
Working mothers of pre-schoolers are such a group. 
Twenty-three per cent of mothers with at least one child 
under six work, a total of 3.6 million mothers.8 Studies 
show that, as compared to women with older children or 
no children, these mothers of pre-school children were much 
more likely to have gone to work because of pressing need.9 
Forty-eight percent of pre-school mothers work because of 
financial necessity and 8% because their husbands are un­
able to work.10 Frequently,' these women are a key or 
only source of income for their families. Sixty-eight per­
cent of working women do not have husbands present in

8TJ.S. Dept, of Labor, 1965 Handbook on Women Workers, 
Bull. 290, at 2, 42.

9 Rosenfeld and Perrella, W h y Women Start and Stop W orking: 
A  Study in Mobility, Monthly Labor Review, Sept. 1965, at 1077-79, 
Table 1.

10 Ibid.



11

the household and two-thirds of these women are raising 
children in poverty.11

Moreover, a barrier to jobs for mothers of pre-schoolers 
is also offensive to the anti-race discrimination purposes 
of Title VII. This rule tends to harm non-white mothers 
more than white mothers.

“ [There is] no tendency for blacks in child bearing ages 
to retire even temporarily from the labor force. This 
situation is explained not only by the high incidence 
of poverty in the Negro community and the economic 
weakness of Negro males, but also by the large pro­
portion of fatherless families.”  11 12 13

As of 1960, thirty-one per cent of non-white married women 
with children under six were working, as compared with 
only eighteen per cent of white women in the same cate-

11 U.S. Dept, of Labor, 1965 Handbook on Women Workers, Bull. 
290, at 36.

12 Ross and Hill, eds., Employment, Race and Poverty, 23 (1967).

13 Peterson, Working Women, 93 Daedalus 671, 684 (1964).



12

CONCLUSION

For these reasons, a writ of certiorari should issue to 
review the judgment and opinion of the Fifth Circuit.

Respectfully submitted,

Jack Greenberg 
James M. Nabrit, III 
N orman C. A maker 
W illiam L. R obinson 
L owell Johnston 
V ilma M artinez Singer 

10 Columbus Circle 
New York, New York 10019

E arl M. J ohnson

625 West Union Street 
Jacksonville, Florida 32202

Attorneys for Petitioner

George Cooper 
435 West 116th Street 
New York, New York

Of Counsel



APPENDIX



APPENDIX

Opinion of the District Court

U nited S tates D istrict Court 
M iddle D istrict of F lorida 

Orlando D ivision

I da P hillips,

vs.
Plantiff,

T he  M artin M arietta Corporation,

Defendant.

R uling on M otion for Summary Judgment

This cause came on before the Court for hearing July 8, 
1968, on the motion of the defendant, M artin M arietta 
Corporation, for summary judgment. The complaint as 
originally filed alleged that the plaintiff was discriminated 
against because of an alleged policy of the defendant not 
to hire women with pre-school age children. In an order 
entered February 26, 1968, this Court ruled that the dis­
crimination raised by that allegation was not the sort of 
discrimination prohibited by Title V II of the Civil Rights 
Act of 1964, 42 U.S.C.A. 2000(e) et seq., and that the 
allegation raising discrimination based on the fact that 
the plaintiff had pre-school age children should be stricken. 
The case proceeded on the basis of alleged discrimination 
based on the plaintiff’s sex alone.

In support of its motion for summary judgment, the 
defendant has filed affidavits and answers to interrogatories

la



2a

showing that the defendant has hired 479 women for the 
same job for which the plaintiff sought to apply during 
the relevant period of time; that 70-75% of the applicants 
for that position were women; that 75-80% of the employees 
holding that position were women, and that there is no 
basis in this record to support a finding that the defendant 
discriminated against this plaintiff because she is a woman.

The plaintiff maintains that a response to a request for 
admission filed herein June 26, 1968, would be sufficient 
to withstand defendant’s motion for summary judgment. 
That request seeks an admission from the defendant 
“ (t)hat the Martin Marietta Corporation now employs 
males with pre-school age children in the position of 
Assembly Trainees?”  Although the time for objecting or 
responding to that request for admission has not expired 
at this time, the Court, for purposes of the motion for 
summary judgment accepts that request for admission 
as admitted, and finds that the defendant does employ 
males with pre-school age children in the position of 
Assembly Trainee. It is, however, the opinion of the Court 
that such fact was irrelevant and immaterial to the issue 
before the Court. The responsibilities of men and women 
with small children are not the same, and employers are 
entitled to recognize these different responsibilities in 
establishing hiring policies.

The plantiff having submitted no affidavits tending to 
show that the defendant discriminated against the plain­
tiff because the plaintiff is a woman, it is the opinion of 
the Court that there is no genuine dispute of material fact 
and that the defendant is entitled to summary judgment 
as a matter of law. It is, therefore,

Ordered and A djudged that the motion of the defendant, 
Martin Marietta Corporation, for summary judgment be

Opinion of the District Court



3a

and is hereby granted; judgment in accordance with this 
opinion will be entered separately.

D one and Ordered in Chambers at Orlando, Florida, 
in this 8th day of July, 1968.

/ s /  George C. Y oung

United States District Judge

Opinion of the District Court

Copies mailed to:

J. Thomas Cardwell, Esq., P. 0. Box 231, Orlando, Florida 
Reese Marshall, Esq., 625 West Union Street, Jacksonville, 
Florida.



4a

I n  the

U nited S tates Court of A ppeals 
F or the F ifth Circuit

No. 26825

Opinion of the United States Court of Appeals

Ida P hillips,
Plaintiff-Appellant,

versus

M artin M arietta Corporation,

Defendant-Appellee.

APPEAL FROM TH E UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF FLORIDA

(May 26, 1969)

Before
Gew in , M cGowan* and M organ,

Circuit Judges.

M organ, Circuit Judge: The present action is before us 
on an appeal from the granting of a motion for summary 
judgment by the District Court. The original complaint 
under Section 706 (e) of the Civil Rights Act of 1964, 42 
U.S.C. §2000-5 (e), alleged that appellee Martin Marietta 
Corporation had violated Section 703, 42 U.S.C. § 2000e-2 
when it wrongfully denied appellant Phillips employment

* Judge Carl McGowan of the District of Columbia Circuit, sit­
ting by designation.



5a

because of sex. An ancillary issue raised concerns the 
propriety of the District Court’s allowing the appeal in 
forma pauperis conditioned on appellant Phillips’ reimburs­
ing the United States in the event of an unsuccessful appeal.

Ida Phillips, the appellant, submitted an application for 
employment with the appellee, Martin Marietta Corpora­
tion, for the position of Assembly Trainee pursuant to an 
advertisement in a local newspaper. When Mrs. Phillips 
submitted her application in an effort to gain employment, 
an employee of Martin Marietta Corporation indicated 
that female applicants with “pre-school age children” were 
not being considered for employment in the position of 
Assembly Trainee. However, males with “pre-school age 
children” were being considered. A  charge was thereafter 
filed with the Equal Employment Opportunity Commission 
alleging that plaintiff-appellant’s rights under Title VII 
of the Civil Rights Act of 19641 had been violated. The 
Commission found reasonable cause to believe that defen­
dant Martin Marietta Corporation had discriminated on 
the basis of sex, and plaintiff filed a class suit in the 
District Court.

The District Court granted a motion to strike that por­
tion of the complaint which alleged that discrimination 
against women with pre-school age children violated the 
statute, and it refused to permit the case to proceed as a 
class action. The complaint was not dismissed, however, 
and it was left open to plaintiff to submit evidence to prove 
her general allegation that she had been discriminated 
against because of her sex.

Defendant then moved for summary judgment, supported 
by an uncontroverted showing that, while 70 to 75 percent

Opinion of the United States Court of Appeals

1 42 U.S.C. §2000e, et seq.



6a

of those who applied for this position wrere women, 75 to 80 
percent of those holding the positions were women. Defen­
dant claimed that this established that there was no dis­
crimination against women in general, or against plaintiff 
in particular. The Court granted the motion on the ground 
that there were no material issues of fact which would sup­
port a conclusion of discrimination on the basis of sex.

The primal issue presented for consideration is whether 
the refusal to employ women with pre-school age children 
is an apparent violation of the 1964 Civil Rights Act’s pro­
scription of discrimination based on “ sex” . The pertinent 
portion of the Act, 42 U.S.C. 2000e-2, reads as follows:

(a) It shall be unlawful employment practice for an 
employer—

(1) to fail or refuse to hire or to discharge any 
individual or otherwise to discriminate against 
any individual with respect to his compensa­
tion, terms, conditions, or privileges or employ­
ment, because of such individual’s race, color, 
religion, sex or national origin;

The defendants do not choose to rely on the “bona fide 
occupational qualification” section of the Act,2 but, instead, 
defend on the premise that their established standard of not 1

Opinion of the United States Court of Appeals

2 42 U.S.C. §2000e-2(e) :
Unlawful employment practices—Employer practices. Busi­
nesses or enterprises with personnel qualified on basis of 
religion, sex, or national origin;  educational institutions with 
personnel of particular religion.

(e) Notwithstanding any other provision of this subehapter,
(1) it shall not be an unlawful employment practice for an 
employer to hire and employ employees, for an employment 
agency to classify, or refer for employment any individual,



7a

hiring women with pre-school age children is not per se dis­
crimination on the basis of “ sex” .

The question that confronts us is a novel one upon which 
the courts have been asked to rule only on a few occasions. 
However, none of the cases reviewed by this Court deal with 
the specific issue presented here. In the case of Cooper v. 
Delta Airlines, Inc., 274 F. Supp. 781 (E.D. La., 1967), ap­
peal dismissed, No. 25,698, 5 Cir., Sept. 1968 the District 
Court held that an airlines hostess who is fired because she 
was married has not been discriminated against on the 
basis of sex. However, Delta did not consider men for the 
positions in question, and therefore, unlike the case sub 
judice, the discrimination was between different categories 
of the same sex. Recently the Fifth Circuit was called upon 
to review a problem of a kindred nature in Weeks v. South­
ern Bell Telephone & Telegraph Co., No. 25,725 (5 Cir.,

Opinion of the United States Court of Appeals

for a labor organization to classify its membership or to 
classify or refer for employment any individual, or for an 
employer, labor organization, or joint labor-management 
committee controlling apprenticeship or other training or 
retraining programs to admit or employ any individual in 
any such program, on the basis of his religion, sex, or 
national origin in those certain instances where religion, 
sex, or national origin is a bona fide occupational qualifica­
tion reasonably necessary to the normal operation of that 
particular business or enterprise, and (2) it shall not be 
an unlawful employment practice for a school, college, uni­
versity, or other educational institution or institution of 
learning to hire and employ employees of a particular reli­
gion if such school, college, university, or other educational 
institution or institution of learning is, in whole or in sub­
stantial part, owned, supported, controlled, or managed by 
a particular religion or by a particular religious corporation, 
association, or society, or if the curriculum of such school, 
college, university, or other educational institution or insti­
tution of learning is directed toward the propagation of a 
particular religion.



8a

Mar. 4, 1969). However, that case is inapposite to the case 
at bar in that the defendant in Weeks, supra, established 
its defense on the “bona fide occupational qualification” , 
rather than relying solely on 42 U.S.C. 2000e-2a (1).

The position taken by the Equal Employment Opportunity 
Commission is that where an otherwise valid criterion is 
applied solely to one sex, then it automatically becomes a 
per se violation of the Act. In its argument, the defendant 
outlines the proposal that before a criterion which is not 
forbidden can be said to violate the Act, the court must be 
presented some evidence on which it can make a determina­
tion that women as a group were treated unfavorably, or 
that the applicant herself was singled out because she was 
a woman. However, neither litigant is able to present sub­
stantive support for its theory. Both cite selected sections 
from the congressional history of the bill; however, a per­
usal of the record in Congress will reveal that the word 
“ sex” was added to the bill only at the last moment and no 
helpful discussion is present from which to glean the intent 
of Congress. To buttress its position, the Commission cites 
to its own regulations; however, it is well established ad­
ministrative law that the construction put on a statute by 
an agency charged with administering it is entitled to def­
erence by the courts, but the courts are the final authorities 
on issues of statutory construction. Volkswagenwerk v. 
FMC, 390 U.S. 261 (1968).

We are of the opinion that the words of the statute are 
the best source from which to derive the proper construction. 
The statute proscribes discrimination based on an indi­
vidual’s race, color, religion, sex, or national origin. A  per 
se violation of the Act can only be discrimination based 
solely on one of the categories i.e. in the case of sex; women 
vis-a-vis men. When another criterion of employment is

Opinion of the United States Court of Appeals



9a

added to one of the classifications listed in the Act, there is 
no longer apparent discrimination based solely on race, 
color, religion, sex, or national origin. It becomes the func­
tion 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 indi­
vidual or group is being denied work due to his race, color, 
religion, sex or national origin. As was acknowledged in 
Cooper, supra, 42 U.S.C. 2000e-2 (a) does not prohibit dis­
crimination on any classification except those named within 
the Act itself.3 Therefore, once the employer has proved 
that he does not discriminate against the protected groups, 
he is free thereafter to operate his business as he deter­
mines, hiring and dismissing other groups for any reason 
he desires. However, it is the duty of the employer to pro­
duce information to substantiate his defense of non-dis­
crimination. It is emphasized that this issue does not con­
cern the bona fide occupational qualification under which 
discrimination is admitted by the employer while alleging 
that such discrimination was justified.

As to the case sub judice, as assembly trainee, among 
other disqualifications, cannot be a woman with pre-school 
age children. The evidence presented in the trial court 
is quite convincing that no discrimination against women 
as a whole or the appellant individually was practiced by 
Martin Marietta. The discrimination was based on a two­
pronged qualification, i.e., a woman with pre-school age 
children. Ida Phillips was not refused employment because 
she was a woman nor because she had pre-school age

Opinion of the United States Court of Appeals

3 “ The discrimination lies in the fact that the plaintiff is mar­
ried— and the law does not prevent discrimination against married 
people in favor of the single ones.” Cooper v. Delta Air Lines, 
Inc., 274 F . Supp. 781 (1967).



10a

children. It is the coalescence of these two elements that 
denied her the position she desired. In view of the above, 
we are convinced that the judgment of the District Court 
was proper, and we therefore affirm.

Decision in this case ultimately turns, of course, upon 
the reach of the Congressional intention underlying the 
statutory prohibition of discrimination in employment 
based upon sex. Where an employer, as here, differentiates 
between men with pre-school age children, on the one hand, 
and women with pre-school age children, on the other, there 
is arguably an apparent discrimination founded upon sex. 
It is possible that the Congressional scheme for the hand­
ling of a situation of this kind was to give the employer 
an opportunity to justify this seeming difference in a treat­
ment under the “bona fide employment disqualification” 
provision of the statute.

The Commission, however, in its appearance before us 
has rejected this possible reading of the statute. It has 
left us, if the prohibition is to be given any effect at all 
in this instance, only with the alternative of a Congressional 
intent to exclude absolutely any consideration of the differ­
ences between the normal relationships of working fathers 
and working mothers to their pre-school age children, and 
to require that an employer treat the two exactly alike 
in the administration of its general hiring policies. If this 
is the only permissible view of Congressional intention 
available to us, as distinct from concluding that the seem­
ing discrimination here involved was not founded upon 
“sex” as Congress intended that term to be understood, 
we have no hesitation in choosing the latter. The common 
experience of Congressmen is surely not so far removed 
from that of mankind in general as to warrant our attribut­
ing to them such an irrational purpose in the formulation 
of this statute.

Opinion of the United States Court of Appeals



11a

Opinion of the United States Court of Appeals

In conclusion, we address ourselves to the condition 
attached to the in forma pauperis grant. Once the District 
Court has determined that the application to proceed in 
forma pauperis is meritorious, the discretion of the Court 
is closed and the application should be granted. Title 28, 
U.S.C.A. 1915; Williford v. People of State of California, 
329 F. 2d 47 (9 Cir., 1964). The condition that appellant 
Phillips must reimburse the United States in the event 
of an unsucessful appeal is hereby removed from the grant 
to proceed in forma pauperis.

A ffirmed.



12a

Ik  the

U nited S tates Court of A ppeals 
F or the F ifth Circuit

No. 26825

Per Curiam Opinion Denying Rehearing

Ida P hillips,
Plaintiff-Appellant,

versus

Martin M arietta Corporation,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF FLORIDA

(October 13, 1969)

Before

Gew in , M cGowan* and M organ,

Circuit Judges.

Per Cu riam : The Petition for Rehearing is Denied and 
the Court having been polled at the request of one of the 
members of the Court and a majority of the Circuit Judges 
who are in regular active service not having voted in favor 
of it (Rule 35 Federal Rules of Appellate Procedure; Local 
Fifth Circuit Rule 12), Rehearing En Banc is also Denied.

* From the D.C. Circuit, sitting by designation.



13a

Per Curiam Opinion Denying Rehearing

Before B rown, Chief Judge, W isdom, Gew in ,
B ell, T hornberry, Coleman, Goldberg, 

A insworth, Godbold, Dyer, Simpson,
M organ, and Carswell, Circuit Judges.

B rown, Chief Judge, with whom A insworth and S impson, 
Circuit Judges, join, dissenting:

I dissent from the Court’s failure to grant rehearing 
en banc.1

I .

Without regard to the intrinsic question of the cor­
rectness of the Court’s decision and opinion, this is one 
of those cases within the spirit of FRAP 35 and 28 USCA 
§ 46 which deserves consideration by the full Court.

As the records of this Court reflect, we have within the 
very recent months had to deal extensively with Title VII 
civil rights cases concerning discrimination in employment 
on account of race, color, sex and religion.1 2 * * 5 Court decisions 
on critical standards are of unusual importance. This is

1 Presumably because it was amicus only and not a party, the 
Government did not seek either rehearing or rehearing en banc. 
For understandable reasons the private plaintiff, Ida Phillips, who 
has the awesome role of private Attorney General without benefit 
of portfolio, or more important, an adequate purse, presumably 
felt that she had fulfilled her duty when the Court ruled. Subse­
quently, on a poll being requested, F R A P  35 ; 5th Circuit Rule 12, 
the Government filed a strong brief attacking the Court’s decision. 
Likewise, the private plaintiff’s counsel filed a persuasive brief. 
This merely emphasizes that it has been members of this Court, 
not the parties, who have raised questions about the Court’s deci­
sion. This is in keeping with 28 U SC A  §46 and F R A P  35.

2 These include the following and those cited therein:
Jenkins v. United States Gas Corp., 5 Cir., 1968, 400 F.2d 28; 
Oatis v. Crown Zellerbach Corp., 5 Cir., 1968, 398 F.2d 496; 
Pettway v. American Cast Iron Pipe Co., 5 Cir., 1969, 411
F.2d 998; Local 189, United Papermakers and Paperworkers,
5 Cir., 1969, -------  F.2d -------  [No. 25956, July 28, 1969];



14a

so because, except for preliminary administrative efforts 
at conciliation and the rare pattern or practice suit by the 
United States,3 effectuation of Congressional policies is 
largely committed to the hands of individual workers who 
take on the mantle of a private attorney general4 to vindi­
cate, not individual, but public rights.

This makes our role crucial. Within the proper limits 
of the case-and-controversy approach we should lay down 
standards not only for Trial Courts, but hopefully also for 
the guidance of administrative agents in the field, as well 
as employers, employees, and their representatives.

The full Court should look at the issue here posed. And 
now in the light of the standard erected— sex if coupled 
with another factor is acceptable—it is imperative that the 
full Court look at it.

n.
Equally important, the full Court should look to correct 

what, in my view, is a palpably wrong standard.
The case is simple. A woman with pre-school children 

may not be employed, a man with pre-school children may.5 * 3 4 5

Per Curiam Opinion Denying Rehearing

United States v. Hayes Internat’l. Corp., 5 Cir., 1969, -------
F .2 d -------  [No. 26809, August 19, 1969]; Weeks v. Southern
Bell Tel. & Tel. Co., 5 Cir., 1969, 408 F.2d 228; Dent v. St. 
Louis-S.F. Ky., 5 Cir., 1969, 406 F.2d 399.

Also pending before a panel of this Court are two analogous cases 
under §17 of the Fair Labor Standards Act, 29 U SC A  §§201 
et seq., involving equality of compensation to women: No. 26960, 
Schultz v. First Victoria Nat’l. Bank; and No. 26971, Shultz v. 
American Bank of Commerce.

3 See §707(a), 42 U SC A  §2000e-6 (a ).

4 See Pettway v. American Cast Iron Pipe Co., note 2, supra, 
411 F.2d at 1005; Jenkins v. United Gas Corp., note 2, supra, 400 
F.2d at 32-33.

5 The man would qualify even though as widower or divorce he 
had sole custody of and responsibility for pre-school children.



15a

The distinguishing factor seems to be motherhood versus 
fatherhood. The question then arises: Is this sex-related? 
To the simple query the answer is just as simple: Nobody— 
and this includes Judges, Solomonic or life tenured—has 
yet seen a male mother. A  mother, to oversimplyfy the 
simplest biology, must then be a woman.

It is the fact of the person being a mother—i.e. a 
woman—not the age of the children, which denies employ­
ment opportunity to a woman which is open to a man.

How the Court strayed from that simple proposition 
is not easy to divine. Not a little of the reason appears 
to be a feeling that the Court in interpreting § 703(a) 
(1), 42 USCA § 2000e-2(a) (1), prohibiting sex discrimina­
tion,6 is bound to accept the contention of one of the parties, 
rather than pick and choose, drawing a middle line, or for 
that matter reaching independently an interpretation 
sponsored by no one. Thus, after noting that in the Trial 
Court and here the Employer did not “ choose to rely on 
the ‘bona fide occupational qualification’ section of the 
Act,7 but, instead, defended on the premise that their

6 Section 7 0 3 (a )(1 ) reads as follows:
“ (a) It shall be an unlawful employment practice for an em­

ployer—
(1) to fail or refuse to hire or to discharge any individual, 

or otherwise to discriminate against any individual with re­
spect to his compensation, terms, conditions, or privileges of 
employment, because of such individual’s race, color, religion, 
sex, or national origin.”

42 U SCA §2000-e2 (a )( 1 ) .

7 Section 703 (e) states:
“ (e) Notwithstanding any other provision of this subchap­

ter, (1) it shall not be an unlawful employment practice for 
an employer to hire and employ employees, for an employment 
agency to classify, or refer for employment any individual, 
for a labor organization to classify its membership or to clas-

Per Curiam Opinion Denying Rehearing



16a

established standard of not hiring women with pre-school 
age children is not per se discrimination on the basis of 
‘sex’ ” (Phillips v. Martin Marietta Corp., 5 Cir., 1969, 411 
F.2d 1, 2-3), the Court virtually acknowledges the patent 
discrimination based on biology. The Court states: “Where 
an employer, as here, differentiates between men with 
pre-school age children, on the one hand, and women with 
pre-school age children, on the other, there is arguably an 
apparent discrimination founded upon sex. It is possible 
that the Congressional scheme for the handling of a situa­
tion of this kind was to give the employer an opportunity 
to justify this seeming difference in treatment under the 
‘bona fide employment disqualification’ provision of the 
statute.” 411 F.2d at 4.

But in what immediately followed the Court then does 
a remarkable thing. Referring to EEOC (appearing only 
as amicus), it states: “ The Commission, however, in its 
appearance before us has rejected this possible reading8 
of the statute. It has left us, if the prohibition is to be 
given any effect at all in this instance, only with the alter­
native of a Congressional intent to exclude absolutely any

Per Curiam Opinion Denying Rehearing

sify or refer for employment any individual, or for an em­
ployer, labor organization, or joint labor-management com­
mittee controlling apprenticeship or other training or retrain­
ing programs to admit or employ any individual in any such 
program, on the basis of his religion, sex, or national origin 
in those certain instances where religion, sex, or national 
origin is a bona fide occupational qualification reasonably neces­
sary to the normal operation of that particular business or 
enterprise. * *

42 U SC A  §2000e-2(e).

8 Such a reading is certainly not rejected by EEO C on this re­
hearing. The supplemental brief (pp. 9-10) recognizes the em­
ployer’s right to claim and prove the §703(e) “business necessity” 
exemption. (See note 7, supra).



17a

consideration of the differences between the normal rela­
tionships of working- fathers and working mothers to their 
pre-school age children, and to require that an employer 
treat the two exactly alike in the administration of its 
general hiring policies. If this is the only permissible view 
of Congressional intention available to us, * * * we have 
no hesitation in choosing the latter.” 411 F.2d at 4.

It is this self-imposed interpretive straightjacket which, 
I believe, leads the Court to the extremes of “ either/or” 
outright per se violation with no defense or virtual com­
plete immunity from the Act’s prohibitions. This it does 
through its test of “ sex plus” : “ [1] A per se violation 
of the Act can only be discrimination based solely on one 
of the categories i.e. in the case of sex; women vis-a-vis 
men. [2] When another criterion of employment is added 
to one of the classifications listed in the Act, there is no 
longer apparent discrimination based solely on race, color, 
religion, sex, or national origin.” 9 411 F.2d at 3-4 (Em­
phasis supplied).

Reducing it to this record the Court characterizes the 
admitted discrimination in this way. “ The discrimination 
was based on a two-pronged qualification, i.e., a woman 
with pre-school age children. Ida Phillips was not refused 
employment because she was a woman nor because she had 
pre-school age children. It is the coalescence of these two 
elements that denied her the position she desired. In view 
of the above, we are convinced that the judgment of the 
District Court was proper, and we therefore affirm.” 411 
F.2d at 4 (Emphasis supplied).

Per Curiam Opinion Denying Rehearing

9 B y supplemental brief (p. 4, n. 1) EEO C agrees with [1] on 
“per se” violations.



18a

I f “ sex plus” stands, the Act is dead.10 11 This follows 
from the Court’s repeated declaration11 that the employer 
is not forbidden to discriminate as to non-statutory factors. 
Free to add non-sex factors, the rankest sort of discrimina­
tion against women can be worked by employers. This 
could include, for example, all sorts of physical charac­
teristics, such as minimum weight (175 lbs.), minimum 
shoulder width, minimum biceps measurement, minimum 
lifting capacity (100 lbs.), and the like. Others could 
include minimum educational requirements (minimum high 
school, junior college), intelligence tests, aptitude tests, 
etc. And it bears repeating that on the Court’s reading, 
one of these would constitute a complete defense to a charge 
of § 703(a) (1) violation without putting on the employer 
the burden of proving “business justification” under 
§ 703(e) (note 7, supra).

In addition to the intrinsic unsoundness of the “ sex 
plus”  standard, the legislative history refutes the idea that 
Congress for even a moment meant to allow “non-business 
justified” discrimination against women on the ground 
that they were mothers or mothers of pre-school children. 
On the contrary, mothers, working mothers, and working 
mothers of pre-school children were the specific objectives 
of governmental solicitude.

Per Curiam Opinion Denying Rehearing

10 Of course the “plus” could not he one of the other statutory 
categories of race, religion, national origin, etc.

11 See, e.g., “As was acknowledged in Cooper, supra, 42 USC  
2000e-2(a) does not prohibit discrimination on any classification 
except those named within the Act itself. Therefore, once the em­
ployer has proved that he does not discriminate against the pro­
tected groups, he is free thereafter to operate his business as he 
determines, hiring and dismissing other groups for any reason he 
desires.” 411 F.2d at 4.



19a

Per Curiam Opinion Denying Rehearing

In the first place, working mothers constitute a large 
class1- posing much discussed problems of economics and 
sociology. And with this large class and the known practice 
of using baby-sitters or child care centers, neither an 
employer nor a reviewing Court can—absent proof of 
“business justification” (note 7, supra)—assume that a 
mother of pre-school children will, from parental obliga­
tions, be an unreliable, unfit employer,12 13

12 Statistics compiled by the "Wage and Labor Standards Admin­
istration of the United States Department of Labor indicate that 
working mothers comprise an important and increasing segment 
of the Nation’s labor resources. In the most recent compilation 
(March 1967), there were 10.6 million working mothers in the 
labor force with children under 18 years of age. This is an increase 
of 6 million over 1950 and an increase of 9.1 million over 1940. 
Of the total of working mothers in March 1967, 38 .9%  were 
mothers of children under 6 years of age and 20.7%  were mothers 
with children under 3 years of age. In numerical terms, 4.1 million 
working mothers had children under 6 and 2.1 million working 
mothers had children under 3. Who are the Working Mothers, 
United States Department of Labor, W age and Labor Standards 
Administration, p. 2-3 (Leaflet 37, 1968).

13 The brief of EEOC points out:
In answering the question: ‘W hat arrangements do working 
mothers make for child care?’, the Department of Labor re­
sponded :

‘In February 1965, 47 percent of the children under 6 years 
of age were looked after in their own homes and thirty 
percent were cared for in someone else’s home, but only 6 
percent received group care in day care centers or similar 
facilities.’
Who are Working Mothers, supra [Note 12].

Furthermore, it is the policy of the Administration to encourage 
unemployed women on public assistance, who have children, to 
enter the labor market by providing for the establishment of day 
care centers to enable them to accept offers of employment. On 
August 8, 1969, President Nixon stated in his address to the Na­
tion on welfare reforms:

‘As I mentioned previously, greatly expanded day-care center 
facilities would be provided for the children of welfare mothers



20a

In this and the related legislation on equality of com­
pensation for women14 one of the reasons repeatedly 
stressed for legislation forbidding sex discrimination was 
the large proportion of married women and mothers in 
the working force whose earnings are essential to the 
economic needs of their families.15

Per Curiam Opinion Denying Rehearing

who choose to work. However, these would he day-eare centers 
with a difference. There is no single ideal to which this A d ­
ministration is more firmly committed than to the enriching 
of a child’s first five years of life, and thus helping lift the 
poor out of misery, at a time when a lift can help the most. 
Therefore, these day-care centers would offer more than cus­
todial care; they would also be devoted to the development 
of vigorous young minds and bodies. As a further dividend, 
the day-care centers would offer employment to many welfare 
mothers themselves.’ Text of Nixon’s Address to the Nation 
Outlining His Proposals for Welfare Reform, N. Y . Times, 
August 9, 1969, at 10, Col. 6.”

Brief for EEO C at 11-12.

14 Equal Pay Act of 1963, 77 Stat. 56, effective June 11, 1964, 
29 U SC A  §206. See pending cases, note 2 supra.

15 Thus, President Kennedy, in signing the Equal Pay Act, sum­
marized the conditions which necessitated such a law, as follows:

“ [T]he average women worker earns only 60 percent of the 
average wage for men * * * Our economy today depends upon 
women in the labor force. One out of three workers is a woman. 
Today, there are almost 25 million women employed, and their 
number is rising faster than the number of men in the labor 
force. It is extremely important that adequate provision he 
made for reasonable levels of income to them, for the care 
of the children * * * and for the protection of the family 
unit * * * Today one out of five of these working mothers 
has children under three. Two out of five have children of 
school age. Among the remainder, about 50 percent have 
husbands who earn less than $5,000 a year— many of them 
much less. I believe they bear the heaviest burden of any 
group in our nation. * * * ” [Kemarks of the President at 
signing the Equal Pay Act on June 10, 1963, X X I  Cong. Q. 
No. 24, p. 978 (June 14, 1963).]

A t the Senate Hearings, Secretary of Labor W irtz pointed out:



21a

Congress could hardly have been so incongruous as to 
legislate sex equality in employment by a statutory 
structure enabling the employer to deny employment to 
those who need the work most through the simple expedient 
of adding to sex a non-statutory factor.16

A mother is still a woman. And if she is denied work 
outright because she is a mother, it is because she is a 
woman. Congress said that could no longer be done.

Per Curiam Opinion Denying Rehearing

“Women’s earnings, in many families, are a substantial factor 
in meeting living costs. Married women, for example, ac­
counted for over one-lialf of the total number of women work­
ers in 1962. Nearly 900,000 working women had husbands 
who, for various reasons, were not in the labor force, primarily 
because they were disabled or retired. The proportion of 
working wives is materially higher among families in the low- 
income groups.” [1963 Senate Hearings, p. 16]

See also Representatives Green (109 Cong. Rec. 9199) :
“ There are approximately 25 million working women in the 
labor force today, and we are simply asking, by this legislation, 
to look at the facts as they face us in 1963, in instances where 
there is unequal pay. * * * Women are the heads of 4.6 mil­
lion families in the United States; one-tenth of all the families 
in this country. Nearly one million working women have hus­
bands who are not employed, mainly because they are disabled 
or retired. Nearly 6 million working women are single. The 
proportion of married women who work is materially higher 
in the low-income families, and, according to the testimony 
that was presented to the committee, some 7.5 million women 
workers supplement the income of male wage earners who 
make less than $3,000 a year. Women’s wages average less 
than two-thirds of the wages paid men.”

16 Too much emphasis cannot be given to the employer’s right to 
claim and prove the §703 (e) “business justification” exemption 
(see note 7, supra). This was not done, but on remand it should 
be open to the employer here.



MEILEN PRESS INC. —  N. Y. C. 219