Colorado Anti-Discrimination Commission v. Continental Air Lines Brief Amici Curiae

    nsr x h b

Supreme Court of the United States
October Term, 1962

No. 146

T h e  C olorado A n t i-D iscrim in a tio n  C om m ission  and  
E dward  M il ia r , M rs . P a u l  B u d in , Clarence  0 .  B ellin g er , 
G en e  M anzan ares , R obert C . K eeler , G eorge J . W h it e , 
and G eorge 0. C orn, as members of said Commission,

Petitioners,
vs.

C o n tin e n ta l  A ir  L in e s , I n c .

On W rit of Certiorari to the Supreme Court 
of the State of Colorado

BRIEF OF THE AMERICAN JEWISH CONGRESS, 
AMERICAN CIVIL LIBERTIES UNION, AND 

NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICI CURIAE

Joseph B. R obison, 
Attorney for

American Jewish Congress,
15 East 84th Street,

New York 28, New York.
M elvin L. W ulf, 

Attorney for
American Civil Liberties Union, 

156 Fifth Avenue,
New York 10, New York.

Jack Greenberg, 
Attorney for

N AACP Legal Defense and 
Educational Fund, Inc.,

10 Columbus Circle,
New York 19, New York.

Amici Curiae



T A B L E  O F  C O N T E N T S

PAGE

S tatem en t  op t h e  Case ............................................................ 1

T h e  Q uestion  to W h ic h  t h is  B rief  is  A d d resse d ........  3

I nterest  oe th e  A m i c i .............................................................. . 3

S u m m a r y  of A rg u m en t  ............................................................ 4

A rg u m en t

The United States Constitution does not bar appli­
cation to an interstate airline of the Colorado 
statute prohibiting discrimination in employment 
on the basis of race, religion or national origin 6

I. Congress has not indicated an intent to bar 
state regulation of racial discrimination in 
employment by persons engaged in inter­
state commerce ..................................................  7
A. Congress has accepted state regulation

of this area ..............................................  7
B. No Federal statute precludes state reg­

ulation of this area ....................................  14

II. The Colorado fair employment statute
places no burden on interstate commerce 18
A. The non-discrimination requirement

places no burden on employers .............  18
B. There is no possibility of burdensome

conflicting requirements ........................... 21

III. Accommodation of the competing demands 
of the state and national interests requires 
a decision upholding the validity of the 
Colorado statute ...............................................  26

C on clusion  .........................................................................................  31



TABLE OF AUTHORITIES

Cases:
PAGE

Atchison, Topeka & Santa Fe R. Co. v. Fair Employ­
ment Practice Commission of the State of Cali­
fornia, 7 R. R. L. R. 164 (Los Angeles Connty,
Superior Court, decided January 30, 1962) ......  9

Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280
(1914) .......................................................................  16

Baylies v. Curry, 128 111. 287, 21 N. E. 595 (1889) ..... 12
Bolden v. Grand Rapids Operating Corp., 239 Mich.

318, 214 X. W. 241 (1927) .......................................  12
Brotherhood of Railroad Trainmen Howard, 343

IT. S. 768 (1952) ................................   14
Brown v. J. H. Bell Co., 146 Iowa 89, 123 N. W. 231

(1910) .......................................................................  12
Buchanan v. Warley, 245 U. S. 60 (1917) ...................... 22
Byams v. N. Y., N. H. & Hartford R. R., 1956 Comm.

Annual Report, p. 57 .............................................. 11

California v. Zook, 336 U. S. 725 (1949) ...................... 17
Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S., 453

(1911) .......................................................................  16
Cleveland, etc. Ry. Co. v. People of State of Illinois,

177 IT. S. 514 (1900') ..............................................  19
Commission v. George, 61 Pa. Super. 412 (1915) ......  12
Conley v. Gibson, 355 H. S. 41 (1957) .........................  14
Crosswaith v. Bergin, 95 Colo. 241, 35 P. 2d 848 (1934) 12

Darius v. Apostolos, 68 Colo. 323, 190 Pac. 510 (1920) 12
District of Columbia v. John R. Thompson Co., 346

U. S. 100 (1953) ......................................................  12

Freeman v. Hewit, 329 U. S. 249 (1946) .................... 23

X I



Ill

Gayle v. Browder, 352 U. S. 903 (1962), affirming 142
F. Snpp 707 (M. D., Ala., 1956) .........................  22

Graham v. Brotherhood of Locomotive Firemen and
Enginemen, 338 U. S. 232 (1949) ........................ 14

Hall v. De Cuir, 95 IT. S. 485 (1877) ....................24,25,26
Huron Portland Cement Co. v. Detroit, 362 U. S. 440

(1960) .......................................................................  6,18

Illinois Cent. B. Co. v. State of Illinois, 163* U. S. 142
(1896) .......................................................................  19

International Harvester Co. v. Dept, of Treasury, 322
II. S. 340 (1944) ......................................................  23

McGoldrick v. Berwind-White Co., 309 U. S. 33 (1940) 23
Marshall v. Kansas City, 355 S. W. 2d 877 (Mo., 1962) 12
Messenger v. State, 25 Neb. 674, 41 N. W. 638 (1889) 12
Miller Bros. Co. v. Maryland, 347 U. S. 340 (1954).... 23
Mississippi Railroad Comm. v. Illinois Central R. R.

Co., 203 U. S. 335 (1906) ....................................... 19
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938) 22
Missouri Pacific R. Co. v. Norwood, 283 U. S. 249

(1931) .......................................................................  16
Morgan v. Virginia, 328 U. S. 373 (1946) ........ 16, 22, 24, 25

Nixon v. Condon, 286 U. S. 73 (1932) .........................  26

Pan American World Airways, Inv. 831-59 1960
Comm. Annual Report, p. 90 .................................  11

Patricia Banks v. Capital Airlines, 1960 Comm. An­
nual Report, p. 95 ..................................................  11

People v. King, 110 N. Y. 414, 18 N. E. 245 (1888) .... 12
Pickett v. Kuehan, 323 111. .138, 153 N. E. 667 (1926).... 12

Railway Mail Association v. Corsi, 326 IT. S. 88 (1945) 9, 31
Rhone v. Loomis, 74 Minn. 200, 77 N. W. 31 (1898) .... 12

PAGE



XV

Rosa Daly v. British Overseas Airways Corp., 1960
Comm. Annual Report, p. 91..................................  11

Ruconich v. El A1 Israel Airlines, 1953 Comm. Annual
Report, p. 40 ............................................................ 11

South Covington Ry. v. Covington, 235 U. S. 537
(1915) ............. ......... ................................................  18

Southern Pacific Co. v. Arizona, 325 U. S. 761
(1945) ..................................................................15,18,26

Steele v. Louisville & Nashville R. Co.,, 323 IT. S. 192
(1944) .......................................................................  14

Valentine v. Brotherhood of Railway & Steamship 
Clerks, Lodge 56, 1952 Comm. Annual Report, 
p. 34 ...........................................................................  11

Yick Wo v. Hopkins,, 118 IT. S. 356 (1886) ..................  22

Statutes— Federal:

Civil Aeronautics Act
49 U. S. C. Secs. 1301 et seq. .................................  14

Railway Labor Act (45 U. S. C., Sec. 151, et seq., 181
et seq.) .....................................................................  14

Statutes— State:

Alaska Comp. Laws Sec. 20-1-3 ........................................  12
Alaska Comp. Laws Ann., Secs. 43-5-1 to 43-5-10 

(Supp. 1957)

PAGE

8



V

Cal. Civ. Code, Sec. 51 ..................................................  12
Cal. Labor Code, Secs. 1410 to 1432, West’s Ann.

Code (1961 Cum. Supp.) ......................................... 8
Colo. Eev. Stats., Sec. 25-2-3 .......................................  12
Colo. Eev. Stat. Secs. 80-24-1 to 80-24-8 (Supp. 1957) 1, 8
Colo. Eev. Stat., Sec. 5-1-2 ............................................. 17
Conn. Gen. Stat. Secs. 31-122 to 31-128 (1958), as

amended Pub. Act No. 145 (1959) ...................... 7
Conn. Eev. Stat., Sec. 53-35 ......................................... 13

Del. Code Ann. (1960! Supp.), Ch. 7, Sub-Cli. 2, Secs.
710 to 713 .................................................................  8

D. C. Code 33-604-607 ....................................................  13

Idaho Gen. L. Ann. (1961 Supp.), Ch. 73, Sec. 18-
7302(c) .....................................................................  12

Idaho Gen. O. Ann. (1961 Supp.), Ch. 73, Sees. 18-7301
to 18-7303 .................................................................  8

111. Smith-Hurd Ann. Stat., Ch. 48, Secs. 851-866 ..... 8
111. Stats. Ann., Ch. 38, Sec. 125 .................................  13
Ind. Ann. Stat. (Burn’s 1961 Supp.), Secs. 40-2307

to 40-2317 .................................................................  S
Ind. Stat. Ann.,, Sec. 10-901 ........................................... 13
Iowa Code, Sec. 735.1 ....................................................  13

Kan. Gen. Stats. Ann., Sec. 21-2424 (1949) ..............  13
Kan. Gen. Stat. Ann. 1949 (1957 Supp.) Secs. 44-1001

to 44-1008 .....................................   8

Maine Eev. Stats.,, Ch. 137, Sec. 50 (1954) .................. 13
Mass. Ann. Laws, Ch. 151B, Secs. 1 to 10 (Supp. 1958) 7
Mass. Ann. Laws, Ch. 272, Sec. 92A .........................  13
Mass. Gen. Stat. (1860'-66 Supp.), Ch. 277 ................  12
Mich. Stat. Ann., Secs. 17.458(1) to 17.458(11) ......  8
Mich. Stats. Ann., Sec. 28.343 ....................................... 13
Minn. Stat. Ann., Sec. 327.09 ....................................... 13

PAGE



Minn. Stat. Ann., Secs. 363.01 to 363.13 (Snpp. 1958) 8
Mo. Ann. Stat. (Vernon Cum. Supp. 1960-1961) Secs.

296.010 to 296.070, 213.010 and 213.030 ................  8
Mont. Rev. Code, Sec. 64-211 (1957 Supp.) ..................  13

Neb. Rev. Stats., Sec. 20-101 (1943) ...........................  13
N. H. Rev. Stats. Ann., Ch. 354, Sec. 2 ...................... 13
N. J. Rev. Stat., Secs. 18:25-l to 18:25-28 (Supp. 1958) 7
N. J. Stats. Ann., Sec. 10:1-5 ....................................... 13
N. M. Stat. Ann., Secs. 59-4-1 to 59-4-14 (Supp. 1957),

as amended by L. 1959, C. 296 .............................  7
N. M. Stats. Ann., Sec. 49-8-5....................................... 13
N. J. Rev. Stat., Secs. 18:25-l to 18:25-28 (Supp. 1958) 7
N. Y. Civ. Rights Law, Sec. 40 ...................................  13
New York Exec. Law, Secs. 290-301 (1951) ..............  7
N. D. Century Code Ann. (1961 Supp.), Sec. 12-22-30 13

Ohio Rev. Code, Secs. 4112.01 to 4112.08, 4112.99 ....... 8
Ohio Rev. Code, See. 2901, 35 ....................................... 13
Ore. Rev. Stat., Sec. 30.670 ........................................... 13
Ore. Rev. Stat. 659.010 to 659.115 (Supp. 1957),

659.990 as amended by L. 1959, C. 584 ..............  7

Pa. Stats. Ann., Tit. 18, Sec. 4654 (1945) ..................  13
Pa. Stat, Ann., Tit. 43, Secs. 951 to 963 (Supp. 1958) 8

R. I. Gen. Laws, Sec. 11-24-3 ....................................... 13
R. I. Gen. Laws Ann., Secs. 28-5-1 to 28-5-39 (Supp.

1958) ........................................................................... 7

Vt. Stats. Ann., Sec. 1451 ............................................  13

Wash. Rev. Code, Sec. 49.60.040 (1956) .................... 13
Wash. Rev. Code Secs. 49.60.010 to 49.60.310 (Supp. 

1957), as amended by L. 1959, C. 58

V I

PAGE

7, 28



V I I

Wis, Stat. Ann., Secs. 111.31 to 111.37 (Supp. 1959,
as amended by L. 1959, C. 149) ...........................  8

Wis. Stats. Ann, Sec. 942.04 (1956) ...........................  13
Wyo. Stats. Ann., Sec. 6-83.1.......................................... 13

Miscellaneous:

Elson and Sehanfield, Local Regulation of Discrimi­
natory Employment Practices, 56 Yale L. J. 431
(1947) ......... .............................................................  8

Emerson & Haber, Political and Civil Eights in the
U. S., Vol. II (1958) ..............................................  27

Employment Discrimination, 5 E. E. L. E. 569 (1960) 9
Executive Order No. 8802, 6 Fed. Reg. 3109 (1941) .... 27

Fair Employment Practice Committee, First Report
(1945) ....................................................   27

Fair Employment Practice Committee, Final Report
(1947) '....................................................................... 27

II. Eep. No. 951, 80th Cong., 2nd Sess. (1948) .......... 21, 29
H. Eep. No. 1,165, 81st Cong., 1st Sess. (1949) ..........  29
II. Eep. No. 1370, 87th Cong., 2nd Sess. (1962) ........ 21, 29

Konvitz and Leskes, A Century of Civil Rights,
(1961) .......................................................................  30

McNamara, Jurisdictional and Commerce Problems,
8 Law and Contemporary Problems 482 (1941) 24

Myrdal, An American Dilemma (1944) ....................... 26

New York State Commission Against, Discrimination, 
Statement before the U. S. Senate Subcommittee 
on Labor and Labor Management Eelations, April 
16, 1952 .....................................................................  20

PAGE



V I I I

PAGE

Pennsylvania Fair Employment Practice Act, 17 U.
Pitt. L. Rev. 438 (1956) ......................................... 9

President’s Committee on Civil Rights, Report, To
Secure These Rights (1947) .................................  29

Sen. Rep. No. 290, 79th Cong., 1st Sess. (1945) ........  29
Sen. Rep. No. 1,109, 79th Cong. 1st Sess. (1945) ......  29
Sen. Rep. No. 2,080, 82nd Cong. 2d Sess. (1952) ......  29

Temporary Commission Against Discrimination, Re­
port, Legislative Document (1945) No. 6 ............  27

The New Pittsburgh Fair Employment Practices Or­
dinance, 14 U. Pitt. L. Rev. 604 (1953) ................  8

The Netv York State Commission Against Discrimi­
nation: A New Technique for an Old Problem,
56 Yale L. J. 837 (1947) ....................................... 9

The World Almanac, 1960 ............................................. 22

United States Commission on Civil Rights, Fifty
States Report (1961) ............................................... 30

United States Commission on Civil Rights, 1961 Re­
port, Book 3, “ Employment”  ...............................  29

Waite, Constitutionality of the Proposed Minnesota 
Fair Employment Practices Act, 32 Minn. L.
Rev. 349 (1948) ......................................................  9

Weaver, Negro, Labor A National Problem (1946).... 27



IN THE

Supreme Court of the United States
October Term, 1962

No. 146

T h e  C olorado A n t i-D iscrim in a tio n  C om m ission  and 
E dward M iller , M rs. P a u l  B u d in , C larence  C. B ellin g er , 
G ene  M anzan ares , R obert C. K eeler , G eorge J . W h it e , 
and G eorge 0. Cory, as members of said Commission,

Petitioners,
vs.

Co n tin e n ta l  A ir  L in e s , I n c .

On Writ of Certiorari to the Supreme Court 
of the State of Colorado

BRIEF OF THE AMERICAN JEWISH CONGRESS, 
AMERICAN CIVIL LIBERTIES UNION, AND 

NAACP LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., AS AMICI CURIAE

Statement of the Case
This case arises under the Colorado Anti-Discrimina­

tion Act of 1957 (Colo. Rev. Stat. Ann. 1953 (1957 Supp.), 
Secs. 80-24-1 to 80-24-8). Section 80-24-6(1) and (2) of 
that law prohibits discrimination in employment on the 
basis of race, creed, color, national origin or ancestry.



2

Under Section 80-24-2(5), this provision is made applicable 
to “ every other person employing six or more employees 
within the state.”

In April, 1957, Marlon D. Green, a Negro, filed an appli­
cation with respondent, Continental Air Lines, Inc., for 
employment as a pilot. Green was interviewed by re­
spondent and required to fill out an application form that 
designated his race. In the succeeding months, a number 
of white applicants were hired as pilots but Green was not 
hired.

On August 13, 1957, Green filed a complaint with the 
Colorado Anti-Discrimination Commission, petitioner here­
in, which administers the Anti-Discrimination Act. The 
Commission investigated the complaint, held a hearing and 
issued its decision holding that Green was fully qualified 
for the position he had applied for and that respondent 
had failed to hire him solely because of his race. It re­
jected a number of defenses raised by respondent, including 
its claim that the anti-discrimination statute could not be 
applied to its operations because of their interstate char­
acter.

Respondent appealed the Commission’s decision to the 
State District Court. Thereafter, further proceedings 
were had on the issue of the interstate nature of respond­
ent’s operations. Ultimately, the Commission and respond­
ent entered into a stipulation that respondent was engaged 
in interstate commerce and that the job that Green applied 
for involved interstate operations. Thereupon, the District 
Court issued its decision setting aside the Commission’s 
order solely on the ground that, because respondent was 
engaged in the interstate transportation of passengers, the 
state Anti-Discrimination Act could not constitutionally



3

apply to its hiring of personnel. The Colorado Supreme 
Court affirmed, by a vote of four to three, holding “ that 
with reference to interstate carriers the regulation of 
racial discrimination is a matter in which there is a ‘ need 
for national uniformity,’ and that the states are without 
jurisdiction to act in that area.”

The Question to Which this Brief is Addressed

May a state statute prohibiting discrimination in em­
ployment because of race, religion or national origin be 
constitutionally applied to the employment practices of an 
interstate airline!

Interest of the Amici

The American Jewish Congress is an organization of 
American Jews established in part “ to help secure and 
maintain equality of opportunity for Jews everywhere, and 
to safeguard the civil, political, economic and religious 
rights of Jews everywhere.”  It established its Commis­
sion on Law and Social Action in 1945, in part “ to fight 
every manifestation of racism and to promote the civil and 
political equality of all minorities in America.”

The American Civil Liberties Union is a 42-year old, 
private, non-partisan organization engaged solely in the 
defense of the Bill of Eights. Its principal interests are 
freedom of speech and association, due process of law, and 
the equal protection of the laws.

The N. A. A. C. P. Legal Defense and Educational Fund, 
Inc. is an organization dedicated to the task of broadening



4

democracy and securing equal justice under the Constitu­
tion and laws of the United States. It seeks through legal 
redress to assure these rights to all Negroes.

Each of these organizations has in the past been actively 
engaged in combatting discrimination in employment based 
on race, religion or national origin. They are, therefore, 
deeply concerned by the decision of the court below which, 
if allowed to stand, would preclude application to a sub­
stantial and vital segment of the nation’s economy of the 
many state and local fair employment laws that have oper­
ated effectively in this country for more than 17 years.

The parties to this proceeding have consented to the 
filing of this brief.

Summary of Argument

1. Application of the Colorado statute to respondent’s 
operations is not barred by the doctrine of pre-emption be­
cause Congress has not indicated any intent to bar such 
application.

A. No agency of the Federal Government has moved 
to halt application to interstate transportation of the many 
state laws prohibiting employment discrimination or even 
of the older and more numerous laws against discrimina­
tion in transportation facilities. State fair employment 
laws have been widely applied to interstate commerce and 
interstate transportation.

B. The various federal statutes dealing with interstate 
transportation have not been applied to employment dis­
crimination. Neither can it be said that the Congressional



5

plan of regulation is so comprehensive as to preclude state 
regulation of untouched areas. Finally, even if there is 
federal regulation of this area, it does not, by itself, pre­
clude state regulation that serves the same policy.

II. The Colorado statute is not a burden on interstate 
carriers.

A. No showing has been made that carrier operations 
are encumbered by the anti-discrimination requirement. 
The 17 years of experience with fair employment laws 
shows that employers have operated freely and success­
fully under their terms.

B. There is no possibility of subjecting carriers to con­
flicting requirements where uniformity is necessary. The 
Constitution itself makes it impossible for any state to 
adopt a law requiring employment discrimination. More­
over, inconsistent regulation of employment practices would 
not create the kind of difficulty in operation that has been 
held decisive in the case of statutes affecting the actual 
operation of railroad trains and other transportation units.

III. If the Colorado statute does impose any burden 
on interstate carriers, it is a minimal burden and the na­
tional interest in its elimination is far outweighed by the 
state interest in the elimination of employment discrimina­
tion. The various state anti-bias laws deal with an evil 
known to have extensive harmful effects. They are a nor­
mal and successful exercise of the police power. No coun­
tervailing interest of the Federal Government requires the 
result reached below.



6

A R G U M E N T

The United States Constitution does not bar appli­
cation to an interstate airline -of the Colorado statute 
prohibiting discrimination in employment on the basis 
of race, religion or national origin.

The question in this ease is whether a state statute af­
fecting an aspect of commerce among the states is rendered 
invalid because of a claimed inconsistency with the constitu­
tional power of the Federal Government to regulate 
interstate commerce. The principles governing the deter­
mination of such questions were recently reviewed by this 
Court in Huron Portland Cement Co. v. Detroit, 362 U. S. 
440 (1960). It was there held that a municipality may 
regulate the health aspects of machinery on ships operating 
under a federal license in interstate commerce.

Reviewing earlier decisions, this Court described them 
as holding that, in the exercise of the police power, “ the 
states and their instrumentalities may act, in many areas 
of interstate commerce and maritime activities, concurrent­
ly with the federal government”  (362 U. S. at 442) and 
that “ Evenhanded local regulation to effectuate a legiti­
mate local public interest is valid unless pre-empted by fed­
eral action * * * or unduly burdensome on maritime activi­
ties or interstate commerce * * *”  (id. at 443). This Court 
further said that a Congressional intent to pre-empt state 
regulation “ is not to be implied unless the act of Congress, 
fairly interpreted, is in actual conflict with the law of the 
state”  (ibid.).

We submit that application of the Colorado fair employ­
ment law to respondent’s operations is not barred by these 
principles.



7

I

Congress has not indicated an intent to bar state 
regulation of racial discrimination in employment by 
persons engaged in interstate commerce.

A. 'Congress has accepted state regulation of this area.

The argument that Congress has acted so as to bar state 
regulation of employment discrimination ignores the fact 
that state laws on this subject have been in force for many 
years and have regularly been applied to interstate car­
riers. No branch of the Federal government has taken the 
position that those statutes invade an area occupied by 
federal regulation.

Since 1945, twenty-two states have adopted laws con­
demning discrimination in employment. Nineteen of these 
are in the form taken by the Colorado statute, that is, a pro­
hibition of such discrimination with provisions for admin­
istrative rather than penal enforcement. The first such 
laws were adopted in New York and New Jersey in 1945.1 2 
Subsequent laws were adopted in Massachusetts in 1946,3 4 
Connecticut in 1947,3 New Mexico, Oregon, Rhode Island 
and Washington in 1949,4 Michigan, Minnesota and Penn­

1. N. Y. Exec. Law Secs. 290-301 (19 51 ); N. J. Rev. Stat. 
Secs. 18:25-1 to 18:25-28 (Supp. 1958).

2. Mass. Ann. Laws, Ch. 151B, Secs. 1 to 10 (Supp. 1958).

3. Conn. Gen. Stat. Secs. 31-122 to 31-128 (1958), as amended, 
Pub. Act No. 145 (1959).

4. N. M. Stat. Ann. Secs. 59-4-1 to 59-4-14 (Supp. 1957), as 
amended by L. 1959, C. 296; Ore. Rev. Stat. 659.010 to 659.115 
(Supp. 1957), 659.990 as amended by L. 1959, C. 584; R. I. Gen. 
Laws Ann. Secs. 28-5-1 to 28-5-39 (Supp. 1958); Wash. Rev. Code 
Secs. 49.60.010 to 49.60.310 (Supp. 1957), as amended by L. 1959,
C. 58.



8

sylvania in 1955,5 Colorado and Wisconsin in 1957,6 Cali­
fornia and Ohio in 19597 and Illinois, Kansas and Missouri 
in 1961.8 Alaska adopted such a law in 1953 when it was 
still a territory.9 In addition, Delaware in 1960 and Idaho 
in 1961 adopted fair employment laws containing penal 
rather than administrative sanctions.10 Finally, Indiana, 
in 1945, adopted a law condemning employment discrimina­
tion hut containing no enforcement provisions.11 Fair 
employment ordinances have also been adopted by a num­
ber of cities, most of them in states that subsequently en­
acted statewide legislation.12

The constitutionality of these statutes as applied to em­
ployers generally has never been seriously contested. That

5. Mich. Stat. Ann., Secs. 17.458(1) to 17.458(11); Minn. 
Stat. Ann. Secs. 363.01 to 363.13 (Supp. 1958); Pa, Stat. Ann. 
Tit. 43, Secs. 951 to 963 (Supp. 1958).

6. Colo. Rev. Stat. Secs. 80-24-1 to 80-24-8 (Supp. 1957) ; Wis. 
Stat. Ann. Secs. 111.31 to 111.37 (Supp. 1959), as amended by L. 
1959, C. 149.

7. Cal. Labor Code, Secs. 1410 to 1432, W est’s Ann. Code 
(1961 Cum. Supp.); Ohio Rev. Code, Secs. 4112.01 to 4112.08, 
4112.99.

8. III. Smith-Hurd Ann. Stat., ch. 48, Secs. 851-866; Kan. Gen. 
Stat. Ann. 1949 (1957 Supp.), Secs. 44-1001 to 44-1008; Mo. Ann. 
Stat. (Vernon Cum. Supps. 1960-1961), Secs. 296.010 to 296.070, 
213.010 to 213.030.

9. Alaska Comp. Laws Ann., Secs. 43-5-1 to 43-5-10 (Supp. 
1957).

10. Del. Code Ann. (1960 Supp.), Ch. 7, Sub-ch. 2, Secs. 710 
to 713; Idaho Gen. L. Ann. (1961 Supp.), Ch. 73, Secs. 18-7301 
to 18-7303.

11. Ind. Ann. Stat. (Burn’s 1961 Supp.), Secs. 40-2307 to 
40-2317.

12. See Elson and Schanfield, Local Regulation of Discriminatory 
Employment Practices, 56 Yale L. J. 431 (1947) ; The New Pitts­
burgh Fair Employment Practices Ordinance, 14 U. Pitt. L. Rev. 
604, 606-09 (1953).



9

is no doubt due in large part to this Court’s 1945 decision 
in Railway Mail Association v. Corsi, 326 U. S. 88, uphold­
ing the validity of an earlier New York state law prohibit­
ing discrimination by labor unions. It is understandable 
that writers on this subject generally agree that fair em­
ployment legislation is constitutional. Waite, Constitution­
ality of the Proposed Minnesota Fair Employment Prac­
tices Act, 32 Minn. L. Rev. 349 (1948); The New York State 
Commission Against Discrimination-. A New Technique 
for an Old Problem, 56 Yale L-. J. 837, 846-8 (1947); 14 IT. 
Pitt., L. Rev., supra, note 12, at 609-11; Pennsylvania Fair 
Employment Practice Act, 17 U. Pitt. L. Rev. 438, 442-4 
(1956); Employment Discrimination, 5 R. R. L. R. 569, 
572-575 (1960).

None of these laws contains any exemption for em­
ployers engaged in interstate commerce. They apply to 
“ employers”  generally. Exemptions are limited to em­
ployers of less than a specified number of employees and 
religious or other non-profit or distinctly private organi­
zations. The various enforcement agencies have admin­
istered the laws without regard to whether the employers 
involved were engaged in interstate commerce. In addi­
tion, the laws have been widely applied to interstate car­
riers and only rarely has the issue of federal pre-emption 
been raised.13

13. In a few cases, the issue of pre-emption was raised before 
an enforcing agency but was not pressed. Aside from the present 
case, the only proceeding we know of in which the issue was raised 
in court is Atchison, Topeka & Santa Fe R. Co. v. Fair Employ­
ment Practice Commission of the State of California, 7 R. R. L. R. 
164 (Los Angeles County, Superior Court, decided January 30, 
1962). In that case, the State Commission had issued an order di­
recting a railway company to cease discriminating against an em­



1 0

In the preparation of this brief, information on this 
point was sought from the state agencies charged with en­
forcement of the various state fair employment laws. Re­
sponses were received from eleven states, two of which, 
Indiana and Missouri, reported that they had handled no 
cases involving interstate carriers. The third, in Cali­
fornia, reported only the case described in note IB above. 
The following information was received from the remain­
ing eight states.

The Kansas Commission on Civil Rights, since the adop­
tion of the state law in 1961, has docketed one complaint 
against an interstate rail carrier. The railroad did not 
challenge the Commission’s jurisdiction.14

The Massachusetts Commission Against Discrimination 
has prosecuted 92 complaints against seven interstate rail­
road companies, 18 complaints against 16 interstate truck­
ing companies, and 12 complaints against nine interstate 
and international air lines.15

The Michigan Fair Employment Practices Commission 
has entertained complaints against an interstate bus com­
pany, an interstate railroad and Northwest Air Lines. The 
Northwest Air Lines complaint is docketed as Claim 598

ployee on the basis of race. The Superior Court set aside the 
Commission’s order on the ground that it was not supported by the 
evidence. However, it first rejected the railway’s contention that 
the Act could not constitutionally be applied to its operations. 7 
R. R. L. R. at 165-166.

14. Letter of January 2, 1963 from Carl W . Glatt, Executive Di­
rector, Commission on Civil Rights. The letter also noted that, 
“ In the eight years prior to July 1, 1961, under the unenforcible 
1953 Kansas Act Against Discrimination, the Commission docketed 
three formal complaints against interstate carriers, all railroads.”

15. Letter of December 27, 1962 from Walter H. Nolan, Execu­
tive Secretary, Massachusetts Commission Against Discrimination.



ii

in the Commission’s files. Northwest did not raise any 
question over the Commission’s jurisdiction.16

The New York State Commission Against Discrimina­
tion has prosecuted the following cases among others. 
Valentine v. Brotherhood of Railway and Steamship Clerks, 
Lodge 56, 1952 Comm. Annual Report., p. 34; Rmonich v. 
El Al Israel Air Lines, 1953 Comm. Annual Report, p. 40; 
Byams v. New York, New Haven & Hartford Railroad, 
1956 Comm. Annual Report, p. 57; Inv. 831-59, Pan Ameri­
can World Airways, 1960 Comm. Annual Report, p. 90; 
Rosa Daly v. British Overseas Airways Corp., 1960 Comm. 
Annual Report, p. 91; Patricia Banks v. Capital Air Lines, 
I960 Comm. Annual Report, p. 95.

The Oregon Bureau of Labor has entertained two com­
plaints against an interstate air line.17

The Pennsylvania Human Relations Commission has 
exercised jurisdiction over seven complaints filed against 
several interstate air lines.18

The Washington State Board Against Discrimination 
has taken jurisdiction in 13 cases involving interstate car­
riers. Three were against the Northern Pacific Railroad, 
one was against the Great Northern Railway Company, 
six against United Air Lines, two against the Greyhound 
Bus Company, and the last was against an interstate truck­
ing company.19

16. Information obtained from Edward N. Hodges, III, Execu­
tive Director, Michigan Fair Employment Practices Commission.

17. Letter of January 9, 1963 from Mark A. Smith, Administra­
tor, Civil Rights Division, Oregon Bureau of Labor.

18. Letter of January 10, 1963 from Elliott M. Shirk, Executive 
Director, Pennsylvania Human Relations Commission. Mr. Shirk’s 
letter notes that “ our law prevents us from giving specific information 
as to name of complainant or respondent and case docket numbers.”

19. Letter of January 9, 1963 from Malcolm B. Pliggins, Execu­
tive Secretary, Washington State Board Against Discrimination.



1 2

The Wisconsin Fair Employment Practices Division of 
the Industrial Commission has entertained jurisdiction over 
several complaints against interstate railroads.20

Congress has accepted application to interstate car­
riers not only of fair employment legislation hut also of 
other laws prohibiting discrimination. These include laws 
dealing with discrimination against passengers—-a matter 
directly affecting operation of individual carrier units.

No less than 28 states and the District of Columbia have 
enacted laws prohibiting discrimination by enterprises, 
variously defined, that solicit the patronage of the general 
public. The constitutionality of such laws is well-estab­
lished.21

The first of these, which was enacted in Massachusetts 
in 1865, specifically applied to any “ public conveyance.”  22 
Of the 29 laws now in effect, 22 expressly apply to common 
carriers23 * and four are cast in terms broad enough to in-

20. Information obtained from Virginia Heubner, Director, W is­
consin Fair Employment Practices Division.

21. District of Columbia v. John R. Thompson Co., 346 U. S. 
100 (19 53 ); Darius v. Apostolos, 68 Colo. 323, 190 Pac. 510 (1920) ; 
Crosswaith v. Bergin, 95 Colo. 241, 35 P. 2d 848 (19 34 ); Baylies v. 
Curry, 128 111. 287, 21 N. E. 595 (1889 ); Pickett v. Kuchan, 323 
111. 138, 153 N. E. 667 (1926) ; Bolden v. Grand Rapids Operating 
Corp., 239 Mich. 318, 214 N. W . 241 (19 27 ); Brown v. J. H. Bell 
Co., 146 Iowa 89, 123 N. W . 231 (19 10 ); Rhone v. Loomis, 74 
Minn. 200, 77 N. W . 31 (1898 ); Marshall v. Kansas City, 355 S. W . 
2d 877 (M o., 1962) ; Messenger v. State, 25 Neb. 674, 41 N. W . 
638 (18 89 ); People v. King, 110 N. Y . 414, 18 N. E. 245 (1888) ; 
Commission v. George, 61 Pa. Super. 412 (1915).

22. Gen. Stat. (1860-66 Supp.), Ch. 277.

23. Alaska Com. Laws, Sec. 20-1-3, “ Transportation compa­
nies” ; Cal. Civ. Code, Sec. 51, “ Public conveyances and all other 
places of public accommodation or amusement” ; Colo. Rev. Stats.,
Sec. 25-2-3, “ Public conveyances on land or water” ; Idaho Gen. L. 
Ann. (1961 Supp.), Ch. 73, Sec. 18-7302(e), “ Public conveyance



13

elude common carriers.24 The remaining three appear to 
exclude interstate carriers.25

or transportation on land, water or in the air, including the stations 
and terminals thereof and the garaging of vehicles” ; III. Stats. Ann., 
Ch. 38, Sec. 125, “ Railroads, omnibuses, stages, street cars, boats, 
funeral hearses, and public conveyances on land and water” ; Ind. 
Stat. Ann., Sec. 10-901, “ Public conveyances on land and water” ; 
Iowa Code, Sec. 735.1, “ Public conveyances” ; Maine Rev. Stats., 
Ch. 137, Sec. 50 (1954), “ Public conveyances on land or water” ; 
Mass. Ann. Law, Ch. 272, Sec. 92A, “ A  carrier, conveyance or ele­
vator for the transportation of persons, whether operated on land, 
water or in the air, and the stations, terminals and facilities appur­
tenant thereto” ; Mich. Stats. Ann., Sec. 28.343, “ Public conveyances 
on land and water” ; Minn. Stats. Ann., Sec. 327.09, “ Public convey­
ances” ; Neb. Rev. Stats., Sec. 20-101 (1943), “ Public conveyances” ; 
N . H. Rev. Stats. Ann., Ch. 354, Sec. 2, “ Public conveyance on land 
or water” ; N. J. Stats. Ann., Sec. 10 :l-5, “ Any garage, any public 
conveyance operated on land or water and stations and terminals 
thereof” ; N. M. Stats. Ann., Sec. 49-8-5, “ All public conveyances 
operated on land, water or in the air as well as the stations and 
terminals thereof” ; N. Y. Civ. Rights Law, Sec. 40, “ Garages, all 
public conveyances operated on land or water, as well as the stations 
and terminals thereof” ; N. D. Century Code Ann. (1961 Supp.), 
Sec. 12-22-30, “ Public conveyances” ; Ohio Rev. Code, Sec. 2901, 
35, “ Public conveyance by air, land or water” ; Pa. Stats. Ann., Tit. 
18, Sec. 4654 (1945), “ Garages, and all public conveyances operated 
on land or water as well as the stations and terminals thereof” ; R. I. 
Gen. Laws, Sec. 11-24-3, “ All public conveyances, operated on land, 
water or in the air as well as the stations and terminals thereof”  ; 
Wash. Rev. Code, Sec. 49.60.040 (1956), “ Public conveyance or 
transportation on land, water, or in the air, including the stations and 
terminals thereof and the garaging of vehicles” ; Wis. Stats. Ann., 
Sec. 942.04 (1956), “ Public conveyances.”

24. Conn. Rev. Stat., Sec. 53-35, refers to “ every place of public 
accommodation,” and place of public accommodation is defined as 
“ any establishment * * * which caters or offers its services or facili­
ties or goods to the general public * * *” ; Mont. Rev. Code, Sec. 
64-211 (1957 Supp.), “ Public accommodation or amusement” ; Vt. 
Stats. Ann., Sec. 1451, “ Any establishment which caters or offers 
its services or facilities or goods to the general public” ; Wyo. Stats-. 
Ann., Sec. 6-83.1, “ All accommodations * * * public in nature, or 
which invite the patronage of the public.”

25. D. C. Code 33-604-607, applies only to eating places; Kan. 
Gen. Stats. Ann., Sec. 21-2424 (1949), applies to any steamboat, 
railroad, stage coach, omnibus, streetcar, or any means of public 
carriage for persons or freight within the state-, Ore. Rev. Stats., 
Sec. 30.670.



14

B, No Federal statute precludes state 
regulation of this area.

The Colorado Supreme Court, in its decision in this case, 
did not consider the question of pre-emption but confined 
its decision to the argument, discussed in Points II and 
III below, that the challenged state law constituted a burden 
on interstate commerce. However, the trial court, whose 
decision the state Supreme Court commented on favorably, 
considered the pre-emption argument in detail and con­
cluded that certain federal statutes indicated a clear Con­
gressional intention to occupy the field of air transportation 
so completely as to exclude state regulation of any kind.

This argument has two aspects: first, that the Federal 
Government has specifically dealt with racial discrimina­
tion in employment by interstate air carriers, and, second, 
that, even if it has not, its regulation of such carriers is so 
extensive as to bar any state regulation even of matters 
not covered by federal statutes. We submit that neither 
argument is supported by the decisions of this Court.

The trial court held that employment discrimination by 
interstate air carriers is prohibited by the Railway Labor 
Act (45 U. S. C. Sec. 151, et seq., 181 et seq.) as well as the 
Civil Aeronautics Act. 49 IT. S. C. Secs. 1301 et seq., for­
merly 49 IT. S. C. Secs. 401 et seq.

The Railway Labor Act and the decisions of this Court 
thereunder deal with discrimination by unions. Steele v. 
Louisville <& Nashville R. Co., 323 IT. S. 192 (1944); Graham 
v. Brotherhood of Locomotive Firemen and Enginemen, 338 
IT. S. 232 (1949); Brotherhood of Railroad Trainmen v. 
Howard, 343 IT. S. 768 (1952); Conley v. Gibson, 355 IT. S. 
41 (1957). No agency of the Federal Government adminis­
tering the Railway Labor Act had suggested or taken any



15

action establishing that the statute deals with the discrimi­
natory practice reached here under the Colorado law, i.e., 
discrimination by an employer independent of action by a 
union.

The provision in the Civil Aeronautics Act primarily 
relied on is 49 U. S. C. Sec. 1374(b) (formerly Sec. 484(b)), 
which provides as follows:

(b) No air carrier or foreign air carrier shall make, 
give, or cause any undue or unreasonable preference or 
advantage to any particular person, port, locality, or 
description of traffic in air transportation in any re­
spect whatsoever or subject any particular person, 
port, locality, or description of traffic in air transporta­
tion to any unjust discrimination or any undue or 
unreasonable prejudice or disadvantage in any respect 
whatsoever.

The undersigned organizations do not, of course, take 
the position that this section cannot be invoked to prevent 
employment discrimination by air carriers. However, we 
are compelled to note that it has never been so interpreted 
or applied and its application to this area is at least an 
unresolved issue. This Court could hardly nullify applica­
tion of the Colorado law to respondent on the ground of 
preemption without resolving that open question. Since 
there is at least doubt on this point, this Court, without 
resolving the issue, should uphold the state statute since, 
as this Court has repeatedly held, “ Congress * * * will not 
be deemed to have intended to strike down a statute de­
signed to protect the health and safety of the public unless 
its purpose to do so is clearly manifested.”  Southern 
Pacific Co. v. Arizona, 325 U. S. 761, 766 (1945), and cases 
there cited.



16

I f employment discrimination by interstate air carriers 
is not prohibited by federal legislation, the remaining ques­
tion is whether Congress has so occupied the general field 
as to bar state regulation of that specific subject. We sub­
mit that the lower court’s affirmative answer to that ques­
tion is unsound. If it were sound, all state laws dealing in 
any way with air, railroad, motor or other forms of inter­
state transportation would be invalidated.

Surely, no aspect of our economy is so thoroughly regu­
lated by Congress as the interstate railroads. Yet this 
Court has upheld even such detailed state regulation of rail 
operations as statutes requiring full crews on trains. 
Chicago, R. I. & P. R. Co. v. Arkansas, 219 IT. S. 453 (1911); 
Missouri Pacific R. Co. v. Norwood, 283 U. S. 249 (1931). 
In referring to these statutes as an example of laws not 
barred by the Congressional power over interstate com­
merce, this Court has described them as “ statutes dealing 
with employment of labor”  (Morgan v. Virginia, 328 IT. S. 
373, 379n (1946)), a description plainly applicable to the 
statute here involved.

The courts below apparently believed that federal regu­
lation of some aspects of interstate transportation by air 
precludes state regulation of all other aspects. Their error 
is revealed by this Court’s decision in Atlantic Coast Line 
R. Co. v. Georgia, 234 IT. S. 280 (1914), where a similar 
argument was rejected even within the narrow area of 
safety regulations. It was there argued that a state statute, 
based on safety considerations, regulating the strength of 
locomotive headlights was barred by federal laws “ relating 
to power driving-wheel brakes for locomotives, grabirons, 
automatic couplers and height of drawbars,”  as well as a 
number of other statutes and regulations dealing with



17

safety (234 U. S. at 293). Justice (later Chief Justice) 
Hughes, speaking for a unanimous Court, disposed of this 
contention briefly, saying “ But it is manifest that none 
of these acts provide regulations for locomotive headlights”
(■ibid.; emphasis supplied).

Finally, even if it appears that the Federal Government 
has regulated the very conduct here involved, that fact by 
itself would not be decisive. In California v. Zook, 336 U. S. 
725 (1949), this Court expressly rejected the view that the 
mere fact of parallel federal and state regulation nullifies 
the latter. It held that there must be some additional show­
ing of Congressional intent to exclude state action. Ac­
cordingly, the states have duplicated federal regulation in 
interstate transportation in a number of ways, one of which 
is revealed in the Colorado statute referred to in the deci­
sion below, which makes it a state crime to operate aircraft 
without the appropriate federal license and registration. 
Colo. Rev. Stat,, Sec. 5-1-2. Although the court below 
cited this statute as showing state deferment to federal 
regulation, it actually shows concurrent regulation by the 
state and Federal Governments to enforce a common policy.

We submit that the decisions of this Court establish that 
there is ample room for state regulation of employment 
discrimination by interstate air carriers. Nothing in the 
pre-emption doctrine requires the conclusion that Congress 
has barred state regulation of employment discrimination 
because it has found it necessary to regulate other unrelated 
aspects of air transportation.



18

II

The Colorado fair employment statute places no 
burden on interstate commerce.

Independent of the issue of pre-emption, it can be 
argued that the Colorado statute may not be applied to 
respondent if such application would be “ burdensome * * # 
on interstate commerce”  (Huron case, supra, 362 XL S. at 
443). We submit that there is no basis for arguing, and 
that respondent has not shown, that a fair employment law 
places a burden on the employers to which it applies or 
that there is any danger that air carriers will be subjected 
to conflicting regulations.

A. The non-discrimination requirement places 
no burden on employers.

At the outset, it should be noted that a burden on inter­
state commerce will not be found lightly. In the cases in 
which this Court has held state laws unduly burdensome, 
there has been an impressive record spelling out the man­
ner in which the statute made operation of the carriers’ 
facilities more difficult or at least more expensive.

Thus, in Southern Pacific Co. v. Arizona, 325 U. S. 761 
(1945), this Court discussed in detail the effect of a state 
statute limiting the length of railroad trains (325 IT. S. at 
771-3). It noted that the statute had an “ admittedly ad­
verse effect on the operation of interstate trains”  {id. at 
764) and concluded that it placed a “ serious burden”  on 
railroad operations {id. at 773). See also South Covington 
Ry. v. Covington, 235 U. S. 537, 547 (1915); Illinois Cent.



19

R. Co. v. State of Illinois, 163 U. S. 142, 153 (1896); Cleve­
land, etc. Ry. Co. v. People of State of Illinois, 177 U. S. 
514, 521 (1900); Mississippi Railroad Comm. v. Illinois Cen­
tral R. R. Co., 203 IT. S. 335, 345, 346 (1906).

No such showing1 is made here. Respondent has not 
shown that compliance with the fair employment law would 
make the hiring of personnel more difficult. Plainly, it can­
not, since the purpose and effect of such legislation is to re­
move a restraint on the employment process. Because of 
the law, respondent and all competing carriers have a larger 
source of manpower supply, free of artificial limitations 
based on race.

This is no longer a matter of speculation. As we have 
noted, fair employment laws have been in effect for more 
than 17 years. It is possible to consider their operation on 
the basis of actual experience. If they were burdensome 
to the employers affected, respondent would be able to pro­
duce evidence to that effect. It has not done so.

The fact is, on the contrary, that employers have oper­
ated freely and successfully in fair employment states. 
Many employers that have conformed to the requirements 
of the law have been outspoken in its support.

Early in 1950, Business Week asked employers in New 
Jersey, Connecticut and New York their views of the fair 
employment laws in their states. The magazine found that, 
while some employers still believed the laws unnecessary, 
even those employers who had opposed them wTere no long­
er actively hostile. All eleven firms surveyed reported to 
Business Week that the laws did not interfere with their 
right to hire the most competent employees they could find, 
and concluded that the laws were functioning without any 
serious problems. (Business Week, Feb. 25, 1950)



20

Even more favorable testimony was produced by the 
commission enforcing tbe New York State law in a state­
ment to a Subcommittee of tbe United States Senate Com­
mittee on Labor and Public Welfare. (Statement of the 
New York State Commission Against Discrimination before 
the U. S. Senate Subcommittee on Labor and Labor Man­
agement Relations, April 16, 1952, pp. 11-12.) A  “ repre­
sentative of an association of retail merchants”  testified 
that the law had simple requirements that imposed no hard­
ship upon an employer. A  “ financial district observer”  
noted that the law had had ‘ ‘ a fine effect upon the employ­
ment practices of banks and brokerage houses * * * ”  A 
representative of a “ public utility company”  thanked the 
New York agency for its fair consideration of the com­
pany’s employment practices and concluded that the 
agency’s work had been of “ definite value to us in apprais­
ing our personnel methods and practices.”

The New York State Commission Against Discrimina­
tion (now called the New York State Commission for Hu­
man Rights) has also publicized statements from individual 
employers on the impact of the state anti-discrimination 
law upon them. The executive vice president of the New 
York Board of Trade said:

I am one of those who was against the anti-discrimina­
tion law when it was first introduced and worked hard 
to prevent its passage. Now after six years of opera­
tion particularly as it is so ably enforced, I find that 
our fears have not been realized, but much more gen­
uine progress has been achieved.

The executive vice-president of the Commerce and In­
dustry Association of New York State, in March 1953, said:



21

It is our observation that the New York State Anti- 
Discrimination program has in general functioned and 
has met with a wide degree of acceptance considering 
the sensitive area in which it operates. The State Com­
mission Against Discrimination has approached its 
task with intelligence and there has been due emphasis 
on the role of education in effecting the purposes of the 
program. We are aware of no concerted employer op­
position to the law and only spotty complaints have 
come to our attention. There are many illustrations 
of employer endorsement of and cooperation with the 
program.

The Rhode Island Commission for Fair Employment 
Practices has stated that many employers on the basis of 
their experience have been convinced of the groundlessness 
of their early fears of anti-discrimination laws and the Fair 
Employment Practices Commissions of Philadelphia and 
Minneapolis have also published reports confirming the 
view that employers believe now that fair employment 
practices acts have not only not burdened them but have in 
fact benefited them. (Reported in Staff Report to the Sub­
committee on Labor and Labor Management Relations of 
the U. S. Senate, Committee Print, 82nd Cong., 2d Sess., 
p. 19 (1952). See also H. Rep. No. 1370, 87th Cong., 2d 
Sess., p. 5 (1962)).

B. There is no possibility of burdensome 
conflicting requirements.

Respondent argues, however, that its operations may 
be burdened by the Colorado law because it may be sub­
jected to conflicting regulations in the various states in 
which it operates. In this connection, it relies on the well- 
established principle that state regulations may be found



2 2

to be unduly burdensome and bence unconstitutional if they 
result in inconsistency “ in matters where uniformity is 
necessary * * Morgan v. Virginia, 328 U. S. 373, 377 
(1946). That argument fails here because respondent 
cannot show either a possibility of inconsistency or a need 
for uniformity.

As we have noted above, fair employment laws ap­
plicable to common carriers are now in effect in 22 states. 
These states include 63.1% of the total population of the 
nation and most of its industrial areas.26 More important, 
there are no state laws requiring discrimination; and it is 
now entirely clear that no state can constitutionally adopt 
a law requiring discrimination by private parties. See, e.g., 
Buchanan v. Warley, 245 IT. S. 60 (1917); Gayle v. Browder, 
352 IT. S. 903 (1962), affirming 142 F. Supp. 707 (M. D., 
Ala., 1956).

Hence, this case does not reveal the vice that invali­
dated state regulation of interstate or foreign commerce 
in other cases, namely, that, if the regulations were sus­
tained, other states could with equal right impose con­
flicting and diverse regulations that would burden inter­
state carriers. The Constitution itself, through the Equal 
Protection Clause, insures against a state requirement of 
discrimination in employment on account of race. The 
Colorado requirement of fair employment carries out the 
constitutional “ pledge of the protection of equal laws.”  
Yick Wo v. Hopkins, 118 IT. S. 356, 369 (1886); Missouri 
ex rel. Gaines v. Canada, 305 IT. S. 337, 350 (1938). It can­
not, therefore, be regarded as imposing an undue burden 
on interstate commerce.

26. The population of the twenty-two states in the 1960 census 
(The W orld Almanac, 1960, p. 255) was 113,232,789. The total 
United States population was 179,323,175.



23

Our contention that state regulation of interstate com­
merce may be held to be free of burdensome effects, in 
view of the restrictive effects of other provisions of the 
Constitution, is not new. The interplay between the Com­
merce Clause and the Fourteenth Amendment has been an 
important factor in sustaining state regulation of inter­
state commerce in the area of taxation. McGoldrick v. 
Berwind-White Co., 309 U. S. 33 (1940); International 
Harvester Co. v. Dept, of Treasury, 322 U. 8. 340 (1944) ;  
Miller Bros. Co. v. Maryland, 347 IT. S. 340 (1954). In 
determining whether the validation of a state tax would 
subject interstate commerce to a risk of undue cumulative 
tax burdens, this Court has considered the effect of the 
Due Process Clause in restricting the taxing powers of 
other states. A  basic consideration in the sustaining of 
certain state tax levies affecting interstate commerce has 
been the inability of other states to tax the same transac­
tion, not because of the Commerce Clause, but because of 
the restrictions on extraterritorial taxation imposed on 
the states by the Due Process Clause.

This interrelation between the Commerce Clause and the 
Due Process Clause was illuminated in International Har­
vester Co. v. Department of Treasury et ad., supra; and 
Freeman v. Ilewit, 329 U. 8. 249 (1946). In the latter case, 
Justice Rutledge said (at p. 271):

Selection of a local incident for pegging the tax 
has two functions relevant to determination of its 
validity. One is to make plain that the state has suffi­
cient factual connections with the transaction to com­
ply with due process requirements. The other is to 
act as a safeguard, to some extent, against repetition 
of the same or a similar tax by another state. (Our 
emphasis; footnote omitted.)



24

See also McNamara, Jurisdictional and Commerce Prob­
lems, 8 Law and Contemporary Problems 482 (1941).

The principle applied in the tax cases affecting inter­
state commerce is, we believe, applicable to the instant case. 
In the cases referred to, the Due Process Clause made it 
impossible for other states to add to the burden of the tax 
on the transaction under attack, with the result that the 
levies were sustained. So, here, the Equal Protection 
Clause precludes diverse or conflicting state action respect­
ing employment. Consequently, as in the tax cases, the 
regulation is valid, for in the absence of the risk of an 
undue burden on commerce, the statute is a proper exer­
cise of the state’s police power.

Finally, respondent has not shown that any burden will 
be placed on its operation by application of inconsistent 
laws regarding employment. The Colorado statute pro­
hibits discrimination in employment and does not affect in 
any way the operation of respondent’s planes. The con­
tract of employment is made at one place and, of course, 
is subject to the law of that place and only that place. 
Once hired, an employee can be sent to any part of the 
country as respondent sees fit.

There is no need here, as there was in Morgan, supra, 
and in Hall v. De Cuir, 95 U. S. 485 (1877), for the carrier 
to make changes in its transportation units each time they 
cross a state line. There is no need for the crew of an 
interstate plane to interrupt a trip in order to comply with 
changed rules. In short, there is no burden, undue or 
otherwise.

Respondent and the court below placed their chief re­
liance on this Court’s decisions in Morgan and Hall. We 
submit that those cases are clearly distinguishable since



25

they deal with operations rather than employment. There 
is a manifest difference, not discussed by the court below, 
between what happens day-to-day in the operation of planes 
and trains and what happens when a carrier takes on per­
sonnel at its home office. In one case, conflicting regula­
tions directly affect the operation of the transportation 
units; they compel extra work on the part of the operating 
crews and sometimes the use of extra equipment and the 
halting of trips at state lines. No such problems are posed 
by inconsistent regulation of -employment; no other prob­
lems are plausibly suggested. No showing has or can be 
made of the “ transportation difficulties”  that were decisive 
in Morgan. 328 U. S. at 385-6.

Respondent has tried to make the rulings in Morgan 
and Hall fit a situation to which they have no logical appli­
cation. It has attempted to create the impression that 
those cases dealt generally with the whole problem of racial 
discrimination in interstate transportation in all its forms. 
In fact, however, they dealt at most with the handling of 
passengers in interstate transportation units. Neither 
their rationale nor their factual basis applies to the hiring 
of employees.

Moreover, in Morgan, there was not- only the possibility 
but the actual fact of inconsistent regulations, as this Court 
took pains to show (328 U. S. at 381-383). The possibility 
of inconsistent regulations also existed in the Hall case at 
the time it was decided. But whatever validity Hall may 
have had up to 1954, it is now completely undermined by 
the decisions of this Court condemning state segregation 
laws, as we have shown above. We therefore respectfully 
suggest that this case provides an appropriate occasion 
for overruling Hall expressly, at least to the extent that it



26

holds that a law prohibiting discrimination may obstruct 
interstate commerce. There is no basis in law or practical 
experience for a holding that a law requiring equal treat­
ment is burdensome. Such a holding, we believe, is funda­
mentally at odds with the equalitarian concepts of the Con­
stitution. It might as well he argued that “ the mandates 
of liberty and equality that hind officials everywhere”  
{Nixon v. Condon, 286 IT. S. 73, 88 (1932)) place a “ bur­
den”  on government—that the prohibition of racial segre­
gation in public schools is a “ burden”  on education.

Since the rationale of Hall v. DeCuir has been destroyed, 
it is time that the ambiguity caused by its continuing vital­
ity be eliminated by this Court.

I l l

Accommodation of the competing demands of the 
state and national interests requires a decision up­
holding the validity of the Colorado statute.

If it is assumed, contrary to what was said in the previ­
ous point, that the Colorado fair employment law does place 
some burden on interstate commerce, the national interest 
in the elimination of that burden must he weighed against 
the state interest sought to be served by the statute. Thus, 
in Southern Pacific, supra, this Court measured “ the rela­
tive weights of the state and national interests. * * *”  (325 
U. S. at 770). As already noted, it found first that the 
challenged state law placed a substantial, palpable burden 
on interstate carriers. It then went on to consider in detail 
the evidence relevant to the state need served by the statute 
and found that the statute, “ viewed as a safety measure, 
affords at most slight and dubious advantage. * * (325* *



27

U. S. at 779). The public purpose served by the Colorado 
fair employment law, we submit, is far more substantial.

Both the existence and the harmful effects of discrimi­
nation in employment against minority groups have been 
fully documented. See, e.g., Myrdal, An American Dilem­
ma, Chaps. 9-19 (1944); Weaver, Negro Labor, A National 
Problem, pp. 16-97 (1946); Emerson & Haber, Political and 
Civil Rights in the United States, Vol. II, pp. 1422-5 (1958). 
The first wartime executive order dealing with discrimina­
tion by defense contractors, issued by President Roosevelt 
in 1941, found that “ available and needed workers have 
been barred from employment in industries engaged in 
defense production solely because of consideration of race, 
creed, color, or national origin, to the detriment of work­
ers’ morale and of national unity.”  Executive Order No. 
8802, 6 Fed. Reg. 3109 (1941). The Fair Employment 
Practice Committee established under that order found 
extensive evidence of discrimination. Fair Employment 
Practice Committee, First Report, pp. 85-101 (1945); Final 
Report, pp. 41-97 (1947).

It was also during the period of World War II that the 
New York State Legislature established a Temporary Com­
mission Against Discrimination, headed by State Senator 
Irving M. Ives, later a United States Senator, to investigate 
this pressing problem. On the basis of extended hearings, 
the Temporary Commission reached the following conclu­
sion (Report, Legislative Document (1945) No. 6, at pp. 
48-49):

Discrimination in opportunity for employment is the 
most injurious and un-American of all the forms of dis­
crimination. To deprive any person of the chance to 
make a living is to violate one of the most fundamental 
of human rights. Moreover, such discrimination is op­



28

posed to every sound principle of public policy and 
makes against loyalty to democratic institutions. * * * 
Social injustice always balances its books with red ink.

Accordingly, the Commission recommended the adop­
tion of a state law prohibiting discrimination in employment 
and the establishment of an administrative agency to en­
force its provisions. In the same year that the Commission 
issued its Report, the New York State Legislature adopted 
its fair employment law, based on the proposed bill sub­
mitted by the Temporary Commission (Report, pp. 77-82). 
The Legislature expressly found, in that statute, that 
“ practices of discrimination * * * because of race, creed, 
color or national origin are a matter of state concern, that 
such discrimination threatens not only the rights and prop­
er privileges of its inhabitants but menaces the institutions 
and foundations of a free democratic state.”  New York 
Exec. Law, Sec. 290.

Similar findings have been made by many of the other 
states that have adopted fair employment legislation.27 In 
one of the most recent statutes, the Illinois Legislature 
found that “ * * * denial of equal employment opportunity 
because of race, color, religion, national origin or ancestry 
with consequent failure to utilize the productive capacities 
of individuals to the fullest extent deprives a portion of the 
population of the State of earnings necessary to maintain 
a reasonable standard of living, thereby tending to cause 
resort to public charity and may cause conflicts and contro­
versies, resulting in grave injury to the public safety, 
health and welfare.”

27. See the Alaska, California, Kansas, Minnesota, New Jersey, 
New Mexico, Pennsylvania, Rhode Island, Washington and W is­
consin. statutes cited in notes 1 to 9, supra.



29

Federal government agencies have reached the same 
conclusion. The President’s Committee on Civil Rights 
found extensive evidence of discrimination in employment 
and its evil effects in its 1947 Report, To Secure These 
Rights, pp. 53-62 (1947). Thirteen years later, the United 
States Commission on Civil Rights issued a 246-page report 
dealing with this problem. 1961 Report, Booh 3, “ Employ­
ment.”

The widespread existence of employment discrimination 
has also been found by Congressional committees studying 
the subject, Sen. Rep. No. 2,080, 82nd Cong. 2d Sess., pp. 
3-4 (1952); H. Rep. No. 1,165, 81st Cong. 1st Sess., pp. 2-8 
(1949); H. Rep. No. 951, 80th Cong. 2d Sess., pp. 2-6 (1948); 
Sen. Rep. No. 290, 79th Cong. 1st Sess., p. 3 (1945); Sen. 
Rep. No. 1,109, 79th Cong. 1st Sess., pp. 2-3 (1945). Most 
recently, the House Committee on Education and Labor, in 
a report on a proposed federal fair employment law, stated 
(H. Rep. No. 1370, 87th Cong. 2d Sess. pp. 1, 2 (1962)):

The conclusion inescapably to be drawn from 98 wit­
nesses in 12 days of hearings, held in various sections 
of the country as well as in Washington, and from 
many statements filed without oral testimony, is that 
in all likelihood fully 50 percent of the people of the 
United States in search of employment suffer some 
kind of job opportunity discrimination because of their 
race, religion, color, national origin, ancestry, or age. 
It should be made clear that the evidence poured in 
from all parts of the Nation—East, West, North, and 
South. # * *

#  #  *

Arbitrary denial of equal employment opportunity un­
questionably contributes to our current staggering wel­
fare assistance costs * * *



30

Fair employment legislation of the kind adopted in 
Colorado is a reasonable and effective way of dealing with 
this well-documented evil. In state after state that has 
adopted such legislation, its beneficial effect has been real­
ized. Thus, in ten of the states having a number of years 
of experience with fair employment laws, the State Ad­
visory Committees to the United States Commission on 
Civil Eights reported in 1961 that beneficial effects had 
been achieved. United States Civil Bights Commission, 
Fifty States Report, pp. 56, 80, 287, 297, 405-8, 429-31, 530, 
545, 556-7, 631-4 (1961). See also Konvitz and Leskes, A 
Century of Civil Rights, pp. 222-224 (1961).

We submit that the Colorado Legislature could reason­
ably conclude that employment discrimination based on 
race, religion and national origin exists, that it has harmful 
effects of the kind normally dealt with under the police 
power and that the legislation here challenged was a reason­
able and effective method of dealing with it. Hence, the 
“ state interest”  is substantial. The “ national interest” , 
in barring state laws prohibiting employment discrimina­
tion by interstate carriers, as we have seen, is at best mini­
mal and, in fact, we believe, non-existent. Indeed, consti­
tutional principles as well as practical considerations com­
pel the conclusion that the national interest is advanced 
rather than hindered by elimination of discrimination by 
interstate air carriers. There is therefore no basis for 
holding that preservation of the federal-state relationship 
requires the result reached below.



31

Conclusion

Fair employment laws are a conventional and widely 
accepted exercise of the police power of the states. They 
have been applied to interstate carriers for over a decade 
without hampering interstate transportation. No national 
interest, no constitutional principle, no decision of this 
Court requires that Continental Air Lines be given a 
license to operate in defiance of the declared policy of Colo­
rado, under which the state has “ put its authority behind 
one of the cherished aims of American feeling by forbidding 
indulgence in racial or religious prejudice to another’s 
hurt.”  Frankfurter, J., concurring in Railway Mail Asso­
ciation v. Corsi, supra, 326 U. S. at 98. The decision of 
the Colorado Supreme Court should therefore be reversed.

Respectfully submitted,

Joseph B. R obison, 
Attorney for

American Jewish Congress,
15 East 84th Street,

New York 28, New York.

M elvin L. W ulf, 
Attorney for

American Civil Liberties Union, 
156 Fifth Avenue,

New York 10, New York.

Jack Greenberg, 
Attorney for

N AACP Legal Defense and 
Educational Fund, Inc.,

10 Columbus Circle,
New York 19, New York.

Amici Curiae
January, 1963



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