Phillips v. Martin Marietta Corporation Appendix

    APPENDIX

^uprrmr Court of thr lluitrii States
OCTOBER TERM, 1969

No. 1058

IDA PHILLIPS, 
PETITIONER,

-v -

MARTIN M ARIETTA CORPORATION, 
RESPONDENT.

ON WRIT OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI FILED JANUARY 10, 1970 

CERTIORARI GRANTED MARCH 2, 1970



TABLE OF CONTENTS

PAGE

Relevant Docket Entries.................................................... la

Complaint .............................................................................  2a

Exhibit “A ” , Annexed to Complaint—Letter Dated 
July 28, 1967 ............................................................ 7a

Exhibit “B” , Annexed to Complaint—Decision of 
Commission .............................................................  8a

Exhibit “ C” , Annexed to Complaint—Notice of 
Right to Sue ...........................................................  11a

Motions to Dismiss and Strike........................................  13a

Order on Motions to Dismiss and Strike ....................... 14a

Answer .................................................................................  16a

Motion for Summary Judgment......................................  18a

Affidavit of Donald C. Parsons........................................  19a

Plaintiff’s Request for Admission ..................................  21a

Order Granting Motion for Summary Judgment......... 22a

Judgment Dismissing A ction .............................................  24a

Motion for Leave to Proceed in Forma Pauperis......... 25a

Affidavit to Accompany Motion for Leave to Appeal 
in Forma Pauperis ......................................................... 26a

Order on Motion for Leave to Proceed in Forma 
Pauperis ............................................................................  28a



PAGE

Notice of Appeal ...............................................................  29a

Opinion by Court of Appeals for the Fifth Circuit,
May 26, 1969 ...................................................................  30a

Judgment of United States Court of Appeals for the 
Fifth Circuit, May 26, 1969 ..........................................  39a

Letter Recalling Mandate of United States Court of 
Appeals for the Fifth Circuit, July 29, 1969 ............. 40a

Order by Court of Appeals for the Fifth Circuit 
Denying Petition for Rehearing, October 13, 1969 .... 42a

Clerk’s Certificate .............................................................  53a

Order Allowing Certiorari, March 2, 1970 ..................... 55a

11



la

Relevant Docket Entries

Complaint filed 12 December, 1967

Motions to Dismiss and Strike filed 10 January, 1968

Order denying Motion to Dismiss and granting Motion to 
Strike filed 27 February, 1968

Answer filed 8 March, 1968

Defendant’s Motion for Summary Judgment filed 31 May, 
1968

Plaintiff’s Request for Admission of Fact filed 26 June, 1968

Order granting Motion for Summary Judgment filed 9 July, 
1968

Judgment dismissing action filed 9 July, 1968

Notice of Appeal filed 12 August, 1968

Opinion by Court of Appeals for the Fifth Circuit filed 
26 May, 1969

Order by Court of Appeals for the Fifth Circuit denying 
Petition for Rehearing filed 13 October, 1969



2a

(Filed Dec. 12, 1967)

I
Jurisdiction of this Court is invoked pursuant to 28 

U. S. C. Section 1343(4) and 42 U. S. C. Section 2000e-5(f). 
This is a suit in equity authorized and instituted pursuant 
to Title V II of the Act of Congress known as “ The Civil 
Rights Act of 1964,” 42 U. S. C. Sections 2000e et seq. 
Jurisdiction of this Court is invoked to secure the protec­
tion of and redress the deprivation of rights secured by 
42 U. S. C. Sections 2000e et seq., providing for injunctive 
and other relief against discrimination on the ground of 
sex in employment.

II

Plaintiff brings this action pursuant to Rule 23(b) (2) 
of the Federal Rules of Civil Procedure, on her behalf and 
on behalf of other persons similarly situated who have 
been denied or been dismissed from employment by the 
Martin Company at its plant and/or other facilities located 
in the State of Florida, and in and around the City of 
Orlando. There are common questions of law and fact 
affecting the rights of other female citizens in this class 
who are and have been limited, classified and discriminated 
against in ways which deprive and tend to deprive them 
of equal employment opportunities and otherwise affect 
their status as employees because of sex. These persons 
are so numerous as to make it impracticable to bring them 
all before this Court. A  common relief is sought. The 
interests of said class are adequately represented by the 
plaintiff.

Complaint



3a

III

This is a proceeding for a preliminary and permanent 
injunction restraining defendant from maintaining a pol­
icy, practice, custom or usage of discriminating against the 
plaintiff, and other female persons with pre-school age 
children similarly situated, because of sex with respect to 
compensation terms, conditions and privileges of employ­
ment and ways which deprive the plaintiff and other female 
persons with pre-school age children of equal employment 
opportunities and otherwise adversely affect their status 
as employees because of sex.

Complaint

IV

Plaintiff, Ida Phillips, is a citizen of the United States 
of America and she presently resides in the City of Jack­
sonville in the State of Florida.

V

Defendant, Martin Company is a corporation doing busi­
ness in Orlando, Florida in pursuance of authority granted 
it by the State of Florida. It has a parent office at San 
Lake Road, Orlando, Florida. The defendant is an employer 
within Title VII of the Civil Rights Act of 1964, 42 U. S. C. 
Section 2000e-(b), in that it is engaged in an industry af­
fecting commerce and employs more than one hundred (100) 
persons.

VI

The plaintiff applied for employment with the defendant 
on September 6, 1966 with no success. Plaintiff submitted 
her application pursuant to an ad in the local newspaper 
advertising positions for 100 assembly trainees.



4a

The only qualification specified was a “high school back­
ground” . Plaintiff answered the advertisement by going to 
the defendants office on September 6, 1966 and filling out 
an application. When she gave her application to the recep­
tionist, she was told that defendant was not considering 
applications from women with pre-school age children. 
Defendant refused to employ plaintiff solely on account 
of her sex.

VII

The plaintiff originally filed a charge in October 5, 1966 
with the Equal Employment Opportunity Commission in 
Washington, D. C. The charge alleged a violation by the 
defendant of plaintiff’s rights under Title VII of the Civil 
Rights Act of 1964, 42 U. S. C. Sections 2000e et seq. At­
tached is a copy of said charge hereto as Exhibit “A ” . The 
charge was referred to the Atlanta Regional Office of the 
Equal Employment Opportunity Commission on or about 
September 25, 1967. On July 28, 1967 the Equal Employ­
ment Opportunity Commission, Washington, D. C. found 
probable cause to credit the allegation of plaintiff. The 
Equal Employment Opportunity Commission on July 14, 
1967 found reasonable cause to believe that the defendant 
had violated Title VII of the Civil Rights Act of 1964 by 
its refusal to consider a woman with pre-school age chil­
dren for employment. Attached hereto as Exhibit “ B” 
is a copy of the decision of the commission. The commis­
sion notified the plaintiff by letter under date of November 
9, 1967 that the commission had not achieved voluntary 
compliance by defendant through conciliation as provided 
by Title VII of the Civil Rights Act of 1964 and that plain­
tiff was entitled to initiate a civil action in a United States 
District Court, as provided by Section 2000e-5(f) of the

Complaint



5a

Civil Eights Act of 1964. Attached hereto as Exhibit “ C” 
is a copy of this letter.

Complaint

VIII

Plaintiff and the class she represents have no plain, 
adequate or complete remedy at law to redress the wrongs 
alleged herein and this suit for a preliminary and per­
manent injunction is their only means of securing adequate 
relief. Plaintiff and the class she represents are now suf­
fering and will continue to suffer irreparable injury be­
cause of defendants policy, practice, customs and usage as 
set forth herein.

W herefore, the plaintiff respectfully prays this Court 
advance this case on the docket, order a speedy hearing at 
the earliest practicable date, cause this case to be in every 
way expedited and upon such hearing to :

1. Grant plaintiff and the class she represents a pre­
liminary and permanent injunction enjoining the defend­
ant, Martin Company, Orlando, Florida, its agents, succes­
sors, employees, attorneys and those acting in concert with 
it and at its direction from continuing or maintaining any 
policy, practice, custom and usages of denying, abridging, 
withholding, conditioning, limiting or otherwise interfering 
with the rights of the plaintiff and others similarly situated 
to enjoy equal employment, treatment, advancement or 
training for advancement as secured by Title V II of “ The 
Civil Rights Act of 1964,” 42 U. S. C. Sections 2000e et seq.

2. Require defendant to employ plaintiff retroactive to 
the time of defendants wrongful refusal to employ her, 
with back pay to said time.



6a

3. Allow plaintiff her costs herein, including reasonable 
attorney’s fees and other additional relief as may appear 
to this Court to be equitable and just.

/ s /  Ida P h i l l i p s  

Plaintiff
Johnson & M arshall 
by / s /  R eese M arshall 
Attorney for Plaintiff 
625 West Union Street 
Jacksonville, Florida 32202

Sworn to and subscribed before me 
this 12th day of December, 1967.

/ s /  E dwina L. W ay

Notary Public 
My Commission Expires;

Complaint



7a

Exhibit “ A”  Annexed to Complaint 
(Letter Dated July 28, 1967)

E qual E mployment Opportunity Commission 
Washington, D.C. 20506

[ e m b l e m ]

J ul 28 1967

IN REPLY REFER TO :

Case No. 6-9-7758 
Martin Company 
Orlando, Florida

Mrs. Ida Joane Phillips 
5301 Indian Hill Road 
Orlando, Florida 32808

Dear Mrs. Phillips:

The Commission has investigated your charge of employ­
ment discrimination and has found reasonable cause to 
believe that an unlawful employment practice with the 
meaning of Title VII of the Civil Rights Act of 1964 has 
been committed. The Commission will attempt to eliminate 
this practice by conciliation as provided in Title VII. You 
will be kept informed of the progress of conciliation efforts.

Sincerely yours,

/ s /  E ric W. S pringer 
Eric W. Springer 
Director of Compliance



8a

Exhibit “ B”  Annexed to Complaint 
(Decision of Commission)

E qual E mployment Opportunity Commission 
Washington, D.C. 20506

[emblem]

Mrs. Ida Phillips Case No. 6-9-7758
Charging Party AT 6-10-811

vs.

Martin Company 
Orlando, Florida 

Respondent

Date of alleged violation: September 6, 1966
Date of filing: October 5, 1966
Date of service of charge: January 10, 1967

D ecision

Summary of Charge

Charging Party alleges that she was discriminated against 
on the basis of her sex (female) as follows:

When she applied for a job with Respondent in re­
sponse to a newspaper advertisement, the receptionist 
told her that her application could not be considered 
because Respondent was not hiring people with pre­
school age children.

Summary of Investigation

Respondent is engaged in an industry affecting commerce 
and is within the jurisdiction of the Commission. Respon­
dent’s primary business is aerospace research and manu­



9a

facturing. With its more than 9000 employees, Respondent 
is the largest employer in the Orlando, Florida area.

In September, 1966, Respondent placed a notice in the local 
paper advertising openings for 100 assembly trainees. The 
only qualification specified was a “high school background.” 
Charging Party answered the advertisement by going to 
Respondent’s offices on September 6, 1966, and filling out an 
application. When she gave her application to the recep­
tionist, she was told that Respondent was not considering 
applications from people with pre-school age children.

At the time of the investigation, Respondent contended that 
Charging Party was not qualified for the position advertised 
since she had no relevant work experience. Charging Party’s 
work experience was not, however, the reason originally 
given (one line illegible)
work experience was not, however, the reason originally 
given for failure to consider her application. The evidence 
indicates that it was because of her young children that 
she was prevented from being considered.

Respondent stated that its position on applicants with pre­
school age children does not constitute a formal rule. How­
ever, Respondent admitted that it prefers not to hire women 
who have young children. This policy is based on Respon­
dent’s “ past experience” with mothers of small children 
who, Respondent asserts, have inflexible schedules and often 
lose time from work caring for their children. No evidence 
was submitted to support these contentions.

The investigation did disclose that the determinant reason 
for rejecting Charging Party’s application was the fact 
that she had a pre-school age child. The Commission found 
in a case with similar facts1 that it is an unlawful prac­
tice to refuse to employ female applicants merely because

Exhibit “B ” Annexed to Complaint



10a

they are mothers of pre-school age children. Respondent’s 
action in excluding women with young children from con­
sideration from employment, solely because of Respondent’s 
past experience, is therefore a violation of Title VII.

Decision

Reasonable cause exists to believe that Respondent violated 
Title VII of the Civil Rights Act of 1964 by its refusal to 
consider a woman with pre-school age children for em­
ployment.

For the Commission

(signed Marie D. Wilson).
Marie D. Wilson, Secretary

JUL 14 1967

Exhibit “B ”  Annexed to Complaint

Date



11a

Exhibit “ C”  Annexed to Complaint 
(Notice of Right to Sue)

E qual E mployment Opportunity Commission 

Washington, D.C. 20506
[emblem]

CERTIFIED MAIL RETURN 
RECEIPT REQUESTED

NOTICE OF RIGHT TO SUE 
WITHIN 30 DAYS

NOY 9 1967

In Reply Refer To:
Case No. 6-9-7758 (AT 6-10-811) 
Martin Company 
Orlando, Florida

Mrs. Ida Phillips 
1445 Domas Drive 
Jacksonville, Florida 32211

Dear Mrs. Phillips:

This is to advise you that conciliation efforts in the above 
matter have failed to achieve voluntary compliance with 
Title VII of the Civil Rights Act of 1964. Pursuant to 
Section 706(e) of the Act, you are hereby notified that 
you may, within thirty (30) days of the receipt of letter, 
institute a civil action in the appropriate Federal District 
Court. I f you are unable to retain an attorney, the Federal 
Court is authorized in its discretion, to appoint an attorney 
to represent you and to authorize the commencement of 
the suit without payment of fees, costs or security. I f you 
decide to institute suit and find you need such assistance,



12a

you may take this letter, along with the Commission deter­
mination of reasonable cause to believe Title VII has been 
violated, to the Clerk of the Federal District Court nearest 
to the place where the alleged discrimination occurred, and 
request that a Federal District Judge appoint counsel to 
represent you.

Please feel free to contact the Commission if you have any 
questions about this matter.

Sincerely,

/ s /  R obert L. R andolph

Robert L. Randolph (Acting) 
Director of Compliance

Exhibit “ C” Annexed to Complaint



13a

Motion to Dismiss, Motion to Strike, and 
Request for Oral Argument

(Filed Jan. 10, 1968)

Motion To Dismiss

Comes now the defendant, M artin M arietta Corporation, 
and moves the court to dismiss the complaint, and for 
grounds states:

1. The complaint was not filed within the time provided 
by law.

2. The complaint does not state a class action against 
the defendant.

3. The complaint fails to state a claim upon which relief 
can be granted.

Motion To Strike

Defendant moves to strike the following from the com­
plaint :

1. The words “national origin” from paragraph I.

Request For Oral Argument

Pursuant to 7(c) of the General Rules, defendant re­
quests this motion be set down for oral argument.

/ s /  J. T homas Cardwell 
J. Thomas Cardwell, of 
A kerman, S enterfitt, E idson, M esmer, 
R obbinson & W harton

506 First National Bank Building 
P.O. Box 231 
Orlando, Florida 32802

Attorneys for Defendant



14a

Order

(Filed Feb. 27, 1968)

This cause came on pursuant to due notice on the appli­
cation of the plaintiff for a temporary injunction and the 
motions of the defendant to dismiss the complaint and to 
strike certain portions thereof. After considering the com­
plaint, the motions of the defendant and the memorandum 
filed in support of said motions and the plaintiff not offering 
any evidence in support of her application for temporary 
injunction, it is,

Ordered that the motion to dismiss the complaint he and 
is hereby denied and the defendant is granted ten (10) days 
from date hereof within which to file an answer to the 
complaint as it stands after the ruling hereinafter set 
forth on the motion to strike; it is further,

Ordered that those portions of the complaint concerning 
the alleged denial of a right based upon the claim that 
the plaintiff was discriminated against because she has 
pre-school age children, be and are hereby stricken, it being 
the holding of this Court that discrimination based upon 
an applicant having pre-school age children is not a dis­
crimination based upon sex in violation of the Civil Rights 
Act. However, the allegation alleging a violation of the 
Civil Rights Act based solely on discrimination because of 
sex remains unstricken; it is further

Ordered that the portions of the complaint alleging the 
action to be a class action are stricken and this case shall 
proceed with the plaintiff suing solely in her individual 
capacity; and it is further,

Ordered that the application for temporary injunction be 
and is hereby denied, there being no evidence offered in



15a

Order

support thereof, but because it is alleged that this case 
comes under the Civil Rights Act, the proceedings will be 
expedited and it is for that reason that only ten (10) days 
are granted for the filing of the answer, rather than the 
usual twenty (20) days.

D one and Ordered in Chambers at Orlando, Florida, this 
26th day of February, 1968.

/ s /  George C. Y oung

United States District Judge



16a

Answer

(Filed March 8, 1968)

Comes now M artin M arietta Corporation, by and 
through its undersigned attorneys, and answers the Com­
plaint as follows:

1. Referring to Paragraph I of the Complaint, defen­
dant admits Paragraph I except that it denies that this 
action is brought to redress discrimination on the basis 
of national origin.

2. Paragraph II of the Complaint was struck by the 
Court’s Order of February 26, 1968.

3. Referring to Paragraph III of the Complaint, de­
fendant admits this is an action for an injunction but 
denies each and every allegation of discrimination on 
the basis of sex contained therein.

4. Referring to Paragraph IV of the Complaint, defen­
dant is without knowledge of the allegations contained 
therein.

5. Referring to Paragraph V of the Complaint, defen­
dant denies that its corporate name is “Martin Company” , 
but rather alleges that it is the Martin Marietta Corpora­
tion, and denies that it has a parent office in Orlando, Flor­
ida. The other allegations of Paragraph V are admitted.

6. Referring to Paragraph VT of the Complaint, de­
fendant admits that plaintiff applied without success for 
employment with the defendant on September 6, 1966; 
that the newspaper advertisement specified high school 
background was required; and that the receptionist told 
plaintiff applications from women with pre-school age



17a

Answer

children were not being considered. Defendant denies that 
plaintiff was refused employment solely on the basis of 
her sex. Defendant is without knowledge of the other 
allegations of this paragraph.

7. Referring to Paragraph VII of the Complaint, de­
fendant admits that plaintiff filed a charge with the 
Equal Employment Opportunity Commission on October 
5, 1966, alleging defendant had violated Title VII of 
the Civil Rights Act of 1964; that on July 14, 1967 the 
Equal Employment Opportunity Commission found rea­
sonable cause to believe defendant had violated said act 
and that by letter dated November 9, 1967 plaintiff was 
notified conciliation efforts had failed. Defendant is with­
out knowledge of any referral of the said charge to the 
Atlanta Regional Office of the Equal Employment Op­
portunity Commission. Defendant denies the allegations 
contained in this paragraph and in the documents referred 
to therein as they relate to discrimination on the basis 
of sex.

8. Referring to Paragraph VIII of the Complaint, de­
fendant denies the allegations contained therein as they 
relate to the plaintiff individually. Those portions re­
lating to a class action were struck by the Court’s Order 
of February 26, 1968.

Affirmative Defense

By way of further defense, defendant alleges that this 
action is barred in that this suit was not timely filed pur­
suant to 28 U.S.C.A. §2000e-5(e).



18a

Motion for Summary Judgment

(Filed May 31, 1968)

Defendant, M artin M arietta Corporation, moves this 
Court for entry of summary judgment in its favor against 
the plaintiff, I da P hillips, and as grounds therefor states 
that the pleadings, interrogatories and affidavit on file show 
that there is no genuine issue as to any material fact 
and that the moving party is entitled to a judgment as 
a matter of law.

Request for Oral Argument

Pursuant to Rule 7(C) of the Local Rules, defendant 
requests oral argument on the above motion.



19a

Affidavit of Donald C. Parsons

S tate of F lorida 
County of Orange

Before me, the undersigned authority, on this day per­
sonally appeared Donald C. Parsons, who, being first 
duly sworn, deposes and says:

1. My name is Donald C. Parsons and I am employed 
by the Martin Marietta Corporation at Orlando, Florida.

2. I am Manager of the Employment Department and 
have held such position for over two years.

3. In my capacity as Manager of the Employment De­
partment I am personally responsible for, and in charge 
of, the hiring of all personnel.

4. In my capacity as Manager of the Employment De­
partment I was cognizant of the terms of Title VII of 
the Civil Bights Act of 1964, including its prohibition 
against the discrimination in employment based on sex, 
and at all times I followed the Company policy of com­
pliance with that Statute.

5. I was personally in charge of the hiring of assembly 
trainees during the relevant period.

6. Approximately 75 to 80% of all those hired as as­
sembly trainees during the relevant period were women.

7. Approximately 70 to 75% of all the job applicants 
for assembly trainees were women.

8. I was personally at the Martin Marietta Corpora­
tion’s Orlando facility, supervising the hiring of assembly 
trainees at the time Mrs. Phillips sought employment.



20a

Affidavit of Donald C. Parsons

9. At the time that Mrs. Phillips sought employment 
no one was discriminated against because of sex and the 
fact that she was not offered employment was in no re­
spect based on her sex.

Further affiant sayeth not.

/ s /  D onald C. P arsons 
Donald C. Parsons

Sworn to and subscribed 
before me this 30th day 
of May, 1968.

S hirley R. M cGill 
Notary Public

My Commission expires: Nov. 3, 1971

Seal



21a

Request for Admission

(Filed June 26, 1968)

Comes N ow the plaintiff, Ida Phillips, and pursuant to 
Rule 36 of the Rules of Civil Procedure, requests the de­
fendant within ten (10) days after service of this request 
to make the following admission for the purpose of this 
action only and subject to all pertinent objections to admis­
sibility which may be interposed at the trial:

1. That the Martin Marietta Corporation now employs 
males with pre-school age children in the position of Assem­
bly Trainees?



22a

Ruling on Motion for Summary Judgment

(Filed July 9, 1968)

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 alle­
gation raising discrimination based on the fact that the 
plaintiff had pre-school 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 de­
fendant has filed affidavits and answers to interrogatories 
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



23a

Ruling on Motion for Summary Judgment

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, how­
ever, the opinion of the Court that such fact is irrelevant 
and immaterial to the issue before the Court. The respon­
sibilities 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 plaintiff having submitted no affidavits tending to 
show that the defendant discriminated against the plaintiff 
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 
and is hereby granted; judgment in accordance with this 
opinion will be entered separately.

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

/ s /  George C. Y oung

United States District Judge



24a

Judgment

(Filed July 9, 1968)

This cause having been duly heard on defendant’s motion 
for summary judgment and the Court having ruled that the 
defendant is entitled to summary judgment, it is in accord­
ance therewith,

Ordered and A djudged that the plaintiff take nothing; 
that the action be dismissed on the merits, each party to 
bear its own costs.

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

/ s /  George C. Y oung

United States District Judge



25a

(Filed July 31, 1968)

Plaintiff moves this Court for an order granting leave 
to appeal from the Judgments entered on February 26,1968 
and July 8, 1968 without prepayment of costs and fees and 
without giving security therefor. The grounds of this Mo­
tion are as follows:

The plaintiff is a citizen of the United States residing 
at Jacksonville, Duval County, Florida, and is without prop­
erty or money with which to pay the costs of appeal and 
is unable to pay costs or fees on appeal or the expense of 
furnishing a stenographic transcript as more fully ap­
pears from plaintiff’s Affidavit attached hereto.

Motion for Leave to Proceed in Forma Pauperis



26a

Affidavit to Accompany Motion for Leave to Appeal
in Forma Pauperis

S tate of F lorida,
County of Duval, ss. :

I, I da P hillips, being first duly sworn, depose and say, 
that I am the plaintiff in the above entitled case; that in 
support of my Motion to proceed on appeal without being 
required to prepay fees, costs or give security therefor, 
I state that because of my poverty I am unable to pay the 
costs of said proceedings or to give security therefor; that 
I believe I am entitled to redress; and that the issues which 
I desire to present on appeal are as follows:

1. The District Court erred in striking those portions 
of plaintiff’s complaint concerning the alleged denial of a 
right based upon a claim that plaintiff was discriminated 
against because she had pre-school age children.

2. That the District Court erred in striking those por­
tions of the plaintiff’s complaint alleging the action to be 
a class action.

3. The District Court erred in granting Summary Judg­
ment for the defendants.

I further swear that the responses which I have made 
to the questions and instructions below relating to my abil­
ity to pay the cost of prosecuting the appeal are true.

1. Are you presently employed? Yes

(a) Amount of salary per month and name and address 
of employer. $120.00— Derby House, 5940 Merrill Road, 
Jacksonville, Florida. 2

2. Have you received within the past 12 months any 
income from business, profession or other form of self-



27a

employment. Or in form of rent payment, interest, divi- 
dens or other source? No

3. Do you own any cash or checking or savings account? 
No

4. Do you own any real estate, stocks, bonds, notes, 
automobiles, or other valuable property? Real Property— 
Buying Home, $12,000.00

Affidavit to Accompany Motion for Leave to Appeal
in Forma Pauperis

5. List the persons who are dependent upon you for 
support and state your relationship to those persons.

Grace McAllister 5 years Daughter
Reggie McAllister 17 years Son
Ronnie McAllister 15 years Son
Vera McAllister 14 years Daughter
Alfred McAllister 13 years Son
Bryan McAllister 11 years Son
Kenneth McAllister 9 years Son

I understand that a false statement or answer to any 
questions in this Affidavit will subject me to penalties for 
perjury.

/ s /  Ida P hillips

Ida Phillips—Affiant

Sworn to and Subscribed before me 
this 29th day of July, A. D. 1968.

/ s /  E dwina L. W ay 
Notary Public 
My Commission Expires:



28a

Order

(Filed Aug. 13, 1968)

This cause came on before the Court for hearing August 
12, 1968, on the motion of the plaintiff for leave to appeal 
in forma pauperis. Having considered plaintiff’s affidavit 
and having heard plaintiff’s testimony, it is,

Obdebed that the motion of the plaintiff for leave to 
appeal in forma pauperis be and is hereby granted, pro­
vided, however, that should the defendant prevail upon the 
final disposition of this action, the plaintiff shall reimburse 
the United States of America for the costs of her appeal 
upon terms and conditions to be determined at the appro­
priate time.

Done and Obdebed in Chambers at Orlando, Florida, this 
13th day of August, 1968.

/ s /  Geobge C. Y oung

United States District Judge



29a

Notice of Appeal

(Filed Aug. 12, 1968)

Notice is hereby given that Ida Phillips, plaintiff above 
named, hereby appeals to the United States Court of Ap­
peals for the Fifth Circuit from the Final Judgments en­
tered in this action on February 26, 1968 and July 8, 1968 
whereby:

(1) The District Court erred in striking those portions 
of plaintiff’s complaint concerning the alleged denial of a 
right based upon a claim that plaintiff was discriminated 
against because she has pre-school age children.

(2) That the District Court erred in striking those por­
tions of the plaintiff’s complaint alleging the action to be 
a class action.

(3) The District Court erred in granting Summary Judg­
ment for the defendants.



30a

Opinion by Court of Appeals for the Fifth Circuit, 
May 26, 1969

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 6 8 2 5

IDA PHILLIPS,
Plaintiff-Appellant,

versus

MARTIN MARIETTA CORPORATION,
Defendant-Appellee.

A p p e a l  f r o m  t h e  U n i t e d  S t a t e s  D i s t r i c t  C o u r t  f o r  t h e  

M i d d l e  D i s t r i c t  o f  F l o r i d a

(M ay 26, 1969)

Before GEWIN, McGOWAN* and MORGAN, 
Circuit Judges.

MORGAN, Circuit Judge: The present action is be­
fore us on an appeal from  the granting of a motion for 
sum m ary 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,

•Judge Carl McGowan of the District of Columbia Circuit, sitting 
by designation.



31a

42 U.S.C. § 2000e-2 when it wrongfully denied appel­
lant Phillips employment because of sex. An ancillary 
issue raised concerns the propriety of the District 
Court’s allowing the appeal in form a pauperis con­
ditioned on appellant Phillips’ reimbursing the United 
States in the event of an unsuccessful appeal.

Ida Phillips, the appellant, submitted an application 
for employment with the appellee, Martin Marietta 
Corporation, for the position of Assembly Trainee pur­
suant 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 fem ale 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 al­
leging 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 de­
fendant Martin Marietta Corporation had discriminat­
ed on the basis of sex, and plaintiff filed a class suit in 
the District Court.

The District Court granted a motion to strike that 
portion of the complaint which alleged that discrimina­
tion against women with pre-school age children vio­
lated the statute, and it refused to permit the case to 
proceed as a class action. The complaint was not *

Opinion by Court of Appeals for the Fifth Circuit,
May 26, 1969

>42 U.S.C. § 2000e, et seq.



32a

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, sup­
ported by an uncontroverted showing that, while 70 to 
75 percent of those who applied for this position were 
women, 75 to 80 percent of those holding the positions 
were women. Defendant claimed that this established 
that there was no discrimination 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 support a conclu­
sion of discrimination on the basis of sex.

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

fa) It shall be unlawful employment practice 
for an em ployer — 1

(1) to fail or refuse to hire or to discharge 
any individual or otherwise to discrim ­
inate against any individual with re­
spect to his compensation, terms, con­
ditions, or privileges or employment, 
because of such individual’s race, 
color, religion, sex or national origin;

Opinion by Court of Appeals for the Fifth Circuit.
May 26, 1969



33a

The defendants do not choose to rely on the “ bona fide 
occupational qualification” section of the Act,* but, in­
stead, defend on the premise that their established 
standard of not hiring women with pre-school age 
children is not per se discrimination on the basis of 
“sex” .

Opinion by Court of Appeals for the Fifth Circuit,
May 26, 1969

The question that confronts us is a novel one upon 
which the courts have been asked to rule only on a

242 U.S.C. § 2000e-2(e):
Unlawful em ploym ent practices  —  E m ployer practices. Busi­

nesses or enterprises w ith  personnel qualified on basis of 
religion, sex , or national origin ; educational institutions with 
personnel o f particular religion.

(e) Notwithstanding any other provision of this sub­
chapter, (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 em­
ployment any individual, for a labor organization to 
classify its membership or to classify or refer for em­
ployment any individual, or for an employer, labor or­
ganization, or joint labor-management committee con­
trolling 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 qualification 
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, 
university, or other educational institution or institution 
of learning to hire and employ employees of a particular 
religion if such school, college, university, or other edu­
cational 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 re­
ligious corporation, association, or society, or if the cur­
riculum of such school, college, university, or other edu­
cational institution or institution of learning is directed 
toward the propagation of a particular religion.



34a

few occasions. However, none of the cases reviewed 
by this Court deal with the specific issue presented 
here. In the case of C o o p e r  v .  D e l t a  A i r l i n e s ,  I n c . , 274 
F. Supp. 781 (E.D. La., 1967), appeal dismissed, No. 
25,698, 5 Cir., Sept. 1968 the District Court held that 
an airlines hostess who is fired because she was m ar­
ried 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 
s u b  j u d i c e ,  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 W e e k s  v .  S o u t h e r n  B e l l  T e l e p h o n e  &  T e l e ­

g r a p h  C o ., No. 25,725 (5 Cir., Mar. 4, 1969). However, 
that case is inapposite to the case at bar in that the 
defendant in W e e k s ,  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 Op­
portunity Commission is that where an otherwise valid 
criterion is applied solely to one sex, then it automati­
cally becom es a per se violation of the Act. In its argu­
ment, 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 determination 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 substan­
tive support for its theory. Both cite selected sections 
from  the congressional history of the bill; however, a 
perusal of the record in Congress will reveal that the

Opinion by Court of Appeals for the Fifth Circuit,
May 26, 1969



35a

O p in io n  by C o u r t  o f  A p p e a ls  f o r  th e  F i f t h  C irc u it , 

M a y 26, 1969
word “ sex” was added to the bill only at the last m o­
ment and no helpful discussion is present from  which 
to glean the intent of Congress. To buttress its posi­
tion, the Commission cites to its own regulations; how­
ever, it is well established administrative law that the 
construction put on a statute by an agency charged 
with administering it is entitled to deference by the 
courts, but the courts are the final authorities on is­
sues of statutory construction. V o l k s w a g e n w e r k  v .  

F M C ,  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 individual’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 added to one of the 
classifications listed in the Act, there is no longer ap­
parent discrimination based solely on race, color, reli­
gion, sex, or national origin. It becom es the function 
of the courts to study the conditioning of employment 
on one of the elements outlined in the statute coupled 
with the additional requirement, and to determine if 
any individual or group is being denied work due to 
his race, color, religion, sex or national origin. As was 
acknowledged in C o o p e r ,  supra, 42 U.S.C. 2000e-2 (a) 
does not prohibit discrimination on any classification 
except those named within the Act itself.3 Therefore,

3 “The discrimination lies in the fact that the plaintiff is married —  
and the law does not prevent discrimination against married 
people in favor of the single ones.” C ooper  v. D elta A ir Lines, 
Inc., 274 F. Supp. 781 (1967).



36a

once the employer has proved that he does not dis­
criminate against the protected groups, he is free 
thereafter to operate his business as he determines, 
hiring and dismissing other groups for any reason he 
desires. However, it is the duty of the em ployer to 
produce information to substantiate his defense of non­
discrimination. It is emphasized that this issue does 
not concern the bona fide occupational qualification 
under which discrimination is admitted by the em ­
ployer while alleging that such discrimination was 
justified.

As to the case s u b  j u d i c e ,  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 individual­
ly was practiced by Martin Marietta. The discrimina­
tion 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 con­
vinced 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 under­
lying 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

Opinion by Court of Appeals for the Fifth Circuit,
May 26, 1969



37a

age children, on the other, there is arguably an ap­
parent discrimination founded upon sex. It is possible 
that the Congressional scheme for the handling of a 
situation of this kind was to give the employer an op­
portunity to justify this seeming difference in treat­
ment under the “ bona fide employment disqualifica­
tion” 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 con­
sideration 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 
em ployer treat the two exactly alike in the adminis­
tration of its general hiring policies. If this is the only 
perm issible view of Congressional intention available 
to us, as distinct from  concluding that the seeming 
discrimination here involved was not founded upon 
“ sex” as Congress intended that term to be under­
stood, we have no hesitation in choosing the latter. 
The com m on experience of Congressmen is surely not 
so far rem oved from  that of mankind in general as to 
warrant our attributing to them such an irrational 
purpose in the formulation of this statute.

In conclusion, we address ourselves to the condition 
attached to the in  f o r m a  p a u p e r i s  grant. Once the Dis­
trict Court has determined that the application to pro­
ceed in form a pauperis is meritorious, the discretion 
of the Court is closed and the application should be

Opinion by Court of Appeals for the Fifth Circuit,
May 26, 1969



38a

granted. Title 28, U.S.C.A. 1915; W i l l i f o r d  v .  P e o p l e  o f  

S t a t e  o f  C a l i fo r n ia , 329 F. 2d 47 (9 Cir., 1964). The con­
dition that appellant Phillips must reimburse the 
United States in the event of an unsuccessful appeal is 
hereby rem oved from  the grant to proceed in form a 
pauperis.

AFFIRM ED.

Opinion by Court of Appeals for the Fifth Circuit,
May 26, 1969



39a

Judgment

UNITED STATES COURT OF APPEALS 

F ob the F ifth Circuit 

October Term, 1968 

No. 26825

D. C. Docket No. Civ. 67-290-Orl.

I da P hillips,
P la in tiff -A p p e lla n t ,

v e r s u s

M artin M arietta Corporation,

D e fe n d a n t -A p p e l le e .

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE  

MIDDLE DISTRICT OF FLORIDA

Before:
Gew in , M cGowan* and M organ,

C irc u it J u d g e s .

Judgment

This cause came on to be heard on the transcript of the 
record from the United States District Court for the 
Middle District of Florida, and was argued by counsel;

On C o n s i d e r a t i o n  W h e r e o f , It is now here ordered 
and adjudged by this Court that the judgment of the 
said District Court in this cause be, and the same is hereby, 
affirmed.

May 26, 1969
Issued as Mandate: Jun 17 1969 
Re-Issued as Mandate: Dec 11 1969

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



40a

Letter Recalling Mandate

UNITED STATES COURT OF APPEALS 

F ifth  Circuit

OFFICE OF THE CLERK

EDWARD W . WADSWORTH ROOM 408-400 ROYAL ST.

CLERK N EW  ORLEANS, LA. 70130

July 29, 1969

To Counsel L isted B elow

No. 26825— Id a  P h illip s  v. M a r tin  M a r ie t ta  C o r p .

Gentlemen:
The Court has directed that I send this letter to counsel.

Pending further order of the Court, the mandate here­
tofore issued is being recalled.

At the request of one of the members of the Court in 
active service, the parties are requested to file and ex­
change further briefs that they consider appropriate or 
necessary with respect to the issues decided in the Court’s 
opinion of May 26, 1969, with particular reference to the 
standard to be applied under the statute forbidding dis­
crimination because of sex.



41a

L e t t e r  R e ca llin g  M a n d a te

These briefs should be filed within twenty (20) days 
from this date and may be filed in typewritten form in 
15 copies.

Very truly yours,

E dward W . W adsworth,
C ler k .

By Gilbert F. Gantjcheau 
Gilbert F. Ganucheau 

C h ie f  D e p u t y  C lerk

GFGradg

Mr. Reese Marshall 
Messrs. David R. Cashdan 

Philip B. Sklover 
Messrs. J. Thomas Cardwell 

George T. Eidson, Jr.

cc-Mr. Wesley R. Thies, C lerk



42a

»

United States Court of Appeals
FOR THE FIFTH CIRCUIT

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13. 1969

IN THE

N o . 2 . 6 8 2 5

IDA PHILLIPS,
Plaintiff-Appellant,

versus

MARTIN MARIETTA CORPORATION,
Defendant-Appellee.

A p p e a l  f r o m  th e  U n it e d  S t a t e s  D i s t r i c t  C o u r t  f o r  t h e  

M i d d l e  D i s t r i c t  o f  F l o r i d a

(October 13, 1969)

Before GEWIN, McGOWAN* and MORGAN, 
Circuit Judges.

PE R  CURIAM: The Petition for Rehearing is DE­
NIED and the Court having been polled at the request 
of one of the m em bers of the Court and a m ajority 
of the Circuit Judges who are in regular active service 
not having voted in favor of it (Rule 35 Federal Rules

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



43a

of Appellate Procedure; Local Fifth Circuit Rule 12), 
Rehearing En Banc is also DENIED.

Before BROWN, Chief Judge, WISDOM, GEWIN, 
BELL, THORNBERRY, COLEMAN, GOLDBERG, 

AINSWORTH, GODBOLD, DYER, SIMPSON, 
MORGAN, and CARSWELL, Circuit Judges.

BROWN, Chief Judge, with whom AINSWORTH and 
SIMPSON, Circuit Judges, join, dissenting:

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

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

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.

'Presumably because it was amicus only and not a party, the Gov­
ernment 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. Subsequently, on a poll being requested, FRAP 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 ques­
tions about the Court’s decision. This is in keeping with 28 
USCA §46 and FRAP 35.



44a

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 reli­
gion.2 Court decisions on critical standards are of un­
usual importance. This is so because, except for pre­
liminary administrative efforts at conciliation and the 
rare pattern or practice suit by the United States,3 
effectuation of Congressional policies is largely com ­
mitted to the hands of individual workers who take 
on the mantle of a private attorney general4 5 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

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

zThese 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 Paper-
makers and Paperworkers, 5 Cir., 1969, --------- F.2d
______ [No. 25956, July 28, 1969]; 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. Ry. 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 USCA  
§§201 e t 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.

3See §707(a), 42 USCA §2000e-6 (a).
■‘•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.



O r d e r  b y  C o u r t  o f  A p p e a ls  f o r  F i f th  C ircu it  

D e n y in g  P e t i t io n  f o r  R e h e a r in g , O c to b e r  13, 1969

field, as well as employers, employees, and their rep­
resentatives.

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 
im perative that the full Court look at it.

II.

Equally important, the full Court should look to cor­
rect what, in my view, is a palpably wrong standard.

The case is simple. A woman with pre-school children 
m ay not be employed, a man with pre-school children 
m ay.5 The distinguishing factor seems to be mother­
hood 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 m ale moth­
er. A mother, to oversim plify 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 
employment 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)

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



46a

(1), 42 USCA §2000e-2(a) (1), prohibiting sex discrim ­
ination,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 not­
ing that in the Trial Court and here the Em ployer 
did not “ choose to rely on the ‘bona fide occupational 
qualification’ section of the A ct,7 but, instead, defended 
on the premise that their established standard of not 
hiring women with pre-school age children is not per 
se discrimination on the basis of ‘sex’ ” (P h i l l ip s  v .  

M a r t i n  M a r i e t t a  C o r p ., 5 Cir., 1969, 411 F.2d 1, 2-3),

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

^Section 703(a) (1) reads as fellows:
“ (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 in­
dividual with respect to his compensation, terms, con­
ditions, or privileges of employment, because of such 
individual’s race, color, religion, sex, or national ori­
gin.”

42 USCA §2000e-2(a) (1).
^Section 703 (e) states:

“ (e) Notwithstanding any other provision of this 
subchapter, (1) it shall not be an unlawful employ­
ment practice for an employer to hire and employ em­
ployees, for an employment agency to classify, or refer 
for employment any individual, for a labor organiza­
tion to classify its membership or to classify or refer 
for employment any individual, or for an employer, 
labor organization, or joint labor-management com­
mittee 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 re­
ligion, sex, or national origin is a bona fide occupation­
al qualification reasonably necessary to the normal 
operation of that particular business or enter­
prise. * *

42 USCA §2000e-2(e).



the Court virtually acknowledges the patent discrim ­
ination 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 situation of this kind was to give the 
em ployer an opportunity to justify this seeming dif­
ference in treatment under the ‘bona fide employment 
disqualification’ provision of the statute.” 411 F.2d at 
4.

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

But in what immediately followed the Court then 
does a rem arkable thing. Referring to EEOC (appear­
ing only as a m i c u s ), it states: “ The Commission, how­
ever, in its appearance before us has rejected this 
possible reading8 o f the statute. It has left us, if the 
prohibition is to be given any effect at all in this in­
stance, only with the alternative of a Congressional 
intent to exclude absolutely any consideration of the 
differences between the norm al relationships of work­
ing fathers and working mothers to their pre-school 
age children, and to require that an em ployer treat 
the two exactly alike in the administration of its gen­
eral 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.

a Such a reading is certainly not rejected by EEOC on this rehearing. 
The supplemental brief (pp. 9-10) recognizes the employer’s 
right to claim and prove the §703(e) “business necessity” ex­
emption. (See note 7, supra).



48a

It is this self-imposed interpretive straight] acket 
which, I believe, leads the Court to the extremes of 
“ either/or” outright per se violation with no defense 
or virtual complete immunity from  the A ct’s prohibi­
tions. 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 a n o t h e r  criter­
ion of employment is  a d d e d  to one of the classifications 
listed in the Act, there is no longer apparent discrim ­
ination based solely on race, color, religion, sex, or 
national origin.” 9 411 F.2d at 3-4 (Emphasis supplied).

Reducing it to this record the Court characterizes 
the admitted discrimination in this way. “ The discrim ­
ination was based on a t w o - p r o n g e d  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 
c o a l e s c e n c e  of these t w o  e l e m e n t s  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 (E m ­
phasis supplied).

If “ sex plus” stands, the Act is dead.'0 This follows 
from  the Court’s repeated declaration" that the em ­

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

9By supplemental brief (p. 4, n. 1) EEOC agrees with [1] on “per 
se” violations.

toOf course the “plus” could not be one of the other statutory 
categories of race, religion, national origin, etc.

"S e e , e.g., “As was acknowledged in C ooper, supra, 42 USC 2000e- 
2(a) does not prohibit discrimination on any classification ex­
cept those named within the Act itself. Therefore, once the



49a

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

ployer is not forbidden to discriminate as to non-statu- 
tory factors. Free to add non-sex factors, the rankest 
sort of discrimination against women can be worked 
by employers. This could include, for example, all sorts 
of physical characteristics, 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 re­
peating that on the Court’s reading, one of these would 
constitute a complete defense to a charge of §703(a) 
(1) violation w i t h o u t  putting on the employer the bur­
den of proving “business justification” under §703(e) 
(note 7, s u p r a ) .

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.

In the first place, working mothers constitute a large 
class12 posing much discussed problems of econom ics

employer has proved that he does not discriminate against the 
protected 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.

laStatistics compiled by the Wage and LabcT Standards Administra­
tion of the United States Department of Labor indicate that 
working mothers comprise an important and increasing seg-



50a

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 — ab­
sent proof of “ business justification” (note 7, s u p r a )  

—  assume that a mother of pre-school children will, 
from  parental obligations, be an unreliable, unfit em ­
ployee.’ * 3

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

ment of the Nation’s labor resources. In the most recent com­
pilation (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 mil­
lion 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. W ho are the W orking M others, United States Department of 
Labor, Wage and Labor Standards Administration, p. 2-3 (Leaf­
let 37, 1968).

i3The brief of EEOC points out:
“In answering the question: ‘What 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.’
W ho are W orking M others, 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 employ­
ment. On August 8, 1969, President Nixon stated in his ad­
dress to the Nation on welfare reforms:

‘As I mentioned previously, greatly expanded day­
care center facilities would be provided for the chil­
dren of welfare mothers who choose to work. How­
ever, these would be day-care centers with a differ­
ence. There is no single ideal to which this Administra­
tion is more firmly committed than to the enriching 
of a child’s first five years of life, and thus helping



51a

In this and the related legislation on equality of c o m ­

p e n s a t i o n  for women14 one of the reasons repeatedly 
stressed for legislation forbidding sex discrimination 
was the large proportion of married women and moth­
ers in the working force whose earnings are essential 
to the econom ic needs of their fam ilies.15

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

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 custodial care; they would also be de­
voted 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.’ T ext o f N ixon ’s Address to the Nation O ut­
lining His Proposals fo r  W elfare R eform , N. Y . Times, 
August 9, 1969, at 10, Col. 6.”

Brief for EEOC at 11-12.
'^Equal Pay Act of 1963, 77 Stat. 56, effective June 11, 1964, 29 

USCA §206. See pending cases, note 2 supra. 
isThus, President Kennedy, in signing the Equal Pay Act, sum­

marized the conditions which necessitated such a law, as fol­
lows:

“[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 be 
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 work­
ing 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 na­
tion. * * *” [Remarks 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 Wirtz pointed out: 
“Women’s earnings, in many families, are a substan­
tial factor in meeting living costs. Married w om en, for



52a

Congress could hardly have been so incongruous as 
to legislate sex equality in employment by a statutory 
structure enabling the em ployer 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.

Order by Court of Appeals for Fifth Circuit
Denying Petition for Rehearing, October 13, 1969

example, accounted fo r  ov er  one-half o f  the tota l num­
ber o f w om en w orkers in 1962. Nearly 900,000 work­
ing 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 million 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 wo­
men 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 sup­
plement 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.”

,6Too 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.

Adm. Office, U.S. Courts— Scofields’ Quality Printers, Inc., N. O., La.



53a

Clerk’s Certificate

I n t h e

UNITED STATES COURT OF APPEALS 

F ob the F ifth Circuit 

No. 26825

Ida P hillips,
P la in ti f f -A p p e lla n t ,

v e r s u s

M artin M arietta Corporation,

D e fe n d a n t -A p p e l le e .

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE  

MIDDLE DISTRICT OF FLORIDA

I, Edward W. Wadsworth, Clerk of the United States 
Court of Appeals for the Fifth Circuit, do hereby certify 
that the foregoing page contain a full, true and complete 
copy of the following papers: Original Record on Appeal, 
Argument and Submission, Opinion of the Court, Judg­
ment, Letter recalling mandate pending further order of 
the Court, and Opinion-Order Denying Petition for Re­
hearing and Petition for Rehearing En Banc; in the above 
cause in this Court as full, true and complete as the orig­
inals of the same now remain in my office.

In testimony whereof, I hereunto subscribe my name and 
affix the seal of the said United States Court of Appeals



54a

C le r k ’s  C ertifica te

at my office in the City of New Orleans, Louisiana, in 
the Fifth Circuit, this date.

E dwabd W . W adsworth 
C le r k  o f  th e U n ite d  S t a te s  C o u r t  

o f  A p p e a l s  f o r  th e  F i f t h  C ircu it .

Date: December 17, 1969.

By Signature Illegible 
D e p u t y  C ler k



55a

Order Allowing Certiorari— March 2, 1970

SUPREME COURT OF THE UNITED STATES 

No. 1058— October Term, 1969

Ida P hillips, 

vs.
P e ti t io n e r ,

M artin M arietta Corporation,

R e s p o n d e n t .

The petition for a writ of certiorari is granted and the 
case is placed on the summary calendar.



M EIIEN  PRESS INC. —  N. Y. C. 219