Los Angeles, Dept. of Water and Power v. Manhart Petition and Briefs

    The Supreme Court 
of the United States

Los Angeles, Dept, ©f 
Water and Power
versus

M ane Manhart

Petition and Briefs

Law Reprints
Labor Series 
Volume 11, no. 12 
1977/1978 Term



IN THE

Supreme Court ot the United States
October Term, 1976 

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

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

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

BURT PINES, City Attorney,
EDWARD C. FARRELL, Chief Assistant City 

Attorney for Water and Power,
J. DAVID HANSON, Deputy City Attorney,
DAVID J. OLIPHANT, Deputy City Attorney,

By DAVID J. OLIPHANT, Deputy City Attorney, 
111 North Hope Street, P.O. Box 111,
Los Angeles, Calif. 90051,

Attorneys for Petitioners.



SUBJECT INDEX

Citations to Opinions Below ......................................  2

Jurisdiction .........   3

Questions Presented .....................................     3

Statutes and Rules Involved........................................  4

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

Reasons for Granting the Writ .................................  9

I. The Court of Appeals Decided This Federal
Question in Direct Conflict With the Su­
preme Court’s Decision in General Electric 
Co. v. Gilbert ...........     9
A. The Will of Congress on Pay Differ­

entials .....................................................  10
B. Will of Congress on Administrative In­

terpretations - ....................................... 17

II. The Decision of the Court of Appeals Pre­
sents an Important Federal Question Which 
Has Nationwide Impact on the Pension, An­
nuity and Insurance Industry, as Well as on 
Cities and States ....................    25

III. An Award of Back Contributions From a
Local Government Entity and the Permanent 
Injunction Is in Excess of the Court’s Juris­
diction as Limited by Title VII and by Ar­
ticle III and the 10th, 11th and 14th Amend­
ments of the United States Constitution........ 28

Conclusion ....................................................................  35

P a g e



11.

INDEX TO APPENDICES

Appendix A. Fair Labor Standards—29 U.S.C.
§ 206 ........... .................................. ............. ..App. A-l

42 U.S.C. § 2000e-2. Unlawful Employment 
Practices ................   A-2

42 U.S.C. § 2G00e-5(g) ............................  A-4

Appendix B. Memorandum and Order Granting 
Plaintiffs’ Motion for Preliminary Injunction.....  B-l

Findings of F a c t...................    B-9

Conclusions of Law ............................................  B -ll

Appendix C. Opinion of the Court of Appeals for 
the Ninth Circuit ...............................   C-l

P a g e

Appendix D. Opinion of the Court of Appeals
Denying Rehearing ...........    D-l

Kilkenny, Circuit Judge Dissenting..................... D-4

Letter to West Publishing Company for Changes 
in Opinion Dated May 3, 1977 ..................... D-10

Revised: May 5, 1977 ........................................ D-12

Appendix E. Legislative and Administrative His­
tory of Acts .....................................    E-l

I.
The Equal Pay Act ............................. ................  E-l

II.
Title VII of Civil Rights A c t...............................  E-6

III.
Administrative Authority and Interpretations .. E -ll



111.

IV. Page
1972 Congressional Action ................................ E-16

V.
Legislative Intent vs. Interpretive Bulletin in 

Employer Costs ..............................................  E-20

Appendix F. Charter Sections 220.1(1) (a) and
(g) ........................................................................... F-l



IV.

TABLE OF AUTHORITIES CITED

Cases Page
American Nurses Assoc, et al. v. Board of Gov­

ernors of the University of North Carolina et al. 
(USDC Mid. D. N. Carolina C 75-558-G) .. 27

Ammons v. Zia Co., 448 F.2d 116 (10th Cir. 
1971) .... ....................... ...... ...................................  11

Bailey v. Los Angeles County (75-3863 C.D. Cal.)
.........................  ...............................................  27

Califano v. Goldfarb, .... U.S...... , 45 USLW 4237
(1977) .................. ......... ........................................  7

Corning Glass Works v. Brennan, 417 U.S. 188,
41 L.Ed.2d 1, 94 S.Ct. 2223 (1974) ........7, 28, 30

Craig v. Boren, .... U.S. ...., 50 L.Ed.2d 397 (1976)
.....-....................................... - ...................................  7

Diana L. Spirt v. TIAA-CREF (N.Y., S.D. 74 Civ. 
1674) ..........   27

Dred Scot v. Sanford, (1856) 19 How. 393, 15 
L.Ed. 691 ...........      32

Edelman v. Jordan (1974) 415 U.S. 651 ...... 31
EEOC v. Colby College (Maine D.C. S.D. 75-136)

..............    27
Espinoza v. Farah Mfg. Co., 414 U.S. 86, 38 L.Ed.

2d 287, 94 S.Ct. 334 (1973) .............................  26
Fitzpatrick v. Bitzer, 427 U.S. 445 ....................  32
Garland M. Fitzpatrick v. Frederick Bitzer, 427

U.S. 445 (1976) ....................................    28
Geduldig v. Aiello (1974) 417 U.S. 484, 41 L.Ed.

2d 256, 94 S.Ct. 2485 ................ .....................7, 29



V.

General Electric Co. v. Gilbert, .... U.S...... . 50 L.
Ed.2d 343, 97 S.Ct....... , 45 USLW 4031 (1976)

, ....2, 3, 8, 9, 10, 15, 16, 17, 18, 20, 21, 24, 36
Henderson v. Oregon, 405 F.Supp. 1275 (1975) ..

.......................................................... ...................... 5, 27
Henry v. City of Los Angeles, 201 Cal.App.2d 299,

.......................................... -......... .............................. 30
Houghton v. Long Beach, 164 Cal.App.2d 298 

(1958) ............. .................... .....................................30
International Brotherhood of Teamsters v. United

States, et ah, ...... U.S......... , 45 L.W. 4506
(1977) .................................................................  13

Kahn v. Shevin, 416 U.S. 351, 40 L.Ed.2d 189, 94
S.Ct. 1734 (1974) .......................... ..................7, 28

Lauf v. E. G. Skinner & Co., 303 U.S. 323 (1938)
...................................................................................  34

Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 
(1803) ....................................................................  31

McCardle, Es Parte (U.S., 1869) 7 Wall. 506,
19 L.Ed. 264 ......................... ........................... 33, 35

National League of Cities v. Usery (1976) 426
U.S. 833, 49 L.Ed.2d 245, 96 S.Ct.......................  30

Peters et al. v. Wayne State University et al. (Mich. 
E.D. 670-165) ............    27

Rosina Smith et al. v. County of Los Angeles (Cal.
C.D. 74-253) .........................................................  27

Schlesinger v. Ballard (1975) 419 U.S. 498, 42
L.Ed.2d 610, 95 S.Ct. 72 ................. ........... 28, 29

P a g e



VI.

Schultz v. Wheaton Glass Co., 421 F.2d 259 (3d 
Cir. 1970) cert. den. 398 U.S. 905 ............11, 29

Sheldon v. Sill (U.S. 1850) 8 How. 440, 12 L.Ed.
1147 ............ -................................ -.................... .33, 35

Skidmore, et al. v. Swift & Co., 323 U.S 134 
(1944) ......................................................................  i 8

Stanton v. Stanton, 421 U.S. 7, 95 S.Ct 1373
(1975) ......... ............. ........................ ....................  7

United States v. Stapf, 375 U.S. 118, 84 S.Ct. 248,
11 L.Ed.2d 195 (1963) ................................... 19

Federal Register
30 Federal Register 14926, 14928, Dec. 2, 1965,

P a g e

Sec. 1604.7 .............................................................. 21
40 Federal Register 24135, June 4, 1975 ........ 17
40 Federal Register 57980, 57982   ................  26

Miscellaneous
110 Congressional Record 7218, 5803, 5437, 7477 

...................................................................................  34
House Report, p. 7152 ..............................................  13

Regulations
Code of Federal Regulations. Title 29, Sec. 800.116

(d) (1975) .............................................................  16
Code of Federal Regulations, Title 29, Sec. 1604.9

(f) (1972) .......................       20
Code of Federal Regulations, Title 29, Sec. 2610 .. 26 
Code of Federal Regulations, Title 29, Sec. 2611 .. 26 
Code of Federal Regulations, Title 41, Secs. 60-20.3 

(0(1970)   17



vn.

Statutes Page
California Government Code, Sec. 45342 ..........27, 30
California Statutes of 1937, Chap. 3, Resolutions, 

p. 2627 .......       30
Civil Rights Act of 1964, Title VII, Sec. 703(a)

(e)(h) .................................................... ................ 4
Civil Rights Act of 1964, Title VII, Sec. 706(g) 

...................................................................................  4
Equal Employment Opportunity Act of 1972, 42 

U.S.C. §2000e ...............      2
Equal Employment Opportunity Act of 1972, 42 

U.S.C. §2000e-2, Title VII, Sec. 703 ...............   4
Equal Employment Opportunity Act of 1972, 42

U.S.C. §2000e-2, Title VII, Sec. 703(h) ......
...............................................................................10, 14

Equal Employment Opportunity Act of 1972, 42
U.S.C. §2000e-2(e) ................................................. 4

Equal Pay Act of 1963 (Pub. L. 88-38, 77 Stat. 
56), Sec. 3 ..................     4

Fair Labor Standards Act, (77 Stat. 56), Sec. 6(d)
...................................................................................  10

Los Angeles City Charter, Sec. 220.1 ..............  30
Los Angeles City Charter, Sec. 220.1(1)(a)(g) .. 4
Pension Reform Act of 1974, P.L. 93-406, 88 Stat.

829, Secs. 302-305 ....................      26
United States Code, Title 26, (IRC 1954), Sec. 410

...................................................................................  26
United States Code, Title 28, Sec. 1254(1) ............  3
United States Code, Title 29, Sec. 206(a)(1) .... 14



P a g e

United States Code, Title 29, Sec. 206(d)(1)
............... -...........................................-4, 7, 11, 28, 30

United States Code, Title 42, Sec.2000e-2(a) ...A, 35 
United States Code, Title 42, Sec. 2000e-5 ...... 25
United States Code, Title 42, Sec. 2000e-5(g) ..4, 36

v iii.

United States Constitution, Art. I .............................  31
United States Constitution, Art. II, Sec. 3 ..........23, 33
United States Constitution, Art. Ill .............. ........

.......................................-.................3, 28, 31, 33, 36
United States Constitution, Tenth Amendment . 3

.............................................................   28, 32, 36
United States Constitution, Eleventh Amendment

.........................................................................3, 28, 36
United States Constitution, Fourteenth Amendment

......................................3, 25, 28, 29, 31, 32, 35, 36
United States Constitution, Fourteenth Amendment,

Sec. 5 ...........................................................28, 29, 33



IN THE

Supreme Court of die United States
October Term, 1976 

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

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G, BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

Petitioners,
vs.

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

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

Petitioners respectfully pray that a writ of certiorari 
issue to review the judgment of the United States 
Court of Appeals for the Ninth Circuit entered in 
this action on November 23, 1976, as to which rehear­
ing was denied, with dissenting opinion, on April 18, 
1977. That decision affirmed the granting of summary 
judgment by the United States District Court for the 1



■2—

Central District of California in favor of respondent 
plaintiffs on a cause of action alleged under Title 
VII of the Civil Rights Act of 1964, as amended 
in 1972 [42 U.S.C. §2000e etseq.].

The first opinion of the Court of Appeals preceded 
by just two weeks the decision of this honorable Court
in General Electric Co. v. Gilbert, .... U.S....... , 50
L.Ed.2d 343, 97 S.Ct......., 45 USLW 4031 (1976).
The Court of Appeals rejected the legislative history 
that this honorable Court expressly relied on in General 
Electric. Such legislative history would directly control 
this case even if General Electric had not been decided. 
Petitioners filed for a rehearing on the day the General 
Electric decision was announced. A divided Court of 
Appeals denied rehearing. Judge John F. Kilkenny, 
dissenting, stated in part:

“I am convinced that the legal principles enunci­
ated in General Electric Co. v. Gilbert, .... U.S. 
.... (Dec. 7, 1976), are here controlling and that 
the district court erred in granting a summary 
judgment against the appellants. At a minimum, 
the court should have conducted a trial on the 
issue of whether the appellants’ retirement plan 
was justified on the basis of recognized actuarial 
tables showing the difference in longevity between 
males and females.” (App. D-4.)1

Citations to Opinions Below.
The findings and conclusions on summary judgment 

and opinion on the injunction of the United States

1Citations to “App. A-l, B-l, C -l” etc., are to pages of the 
Appendices to this Petition.

2



District Court for the Central District of California 
reported at 387 F.Supp, 980, are printed as Appendix
B. The opinion of the United States Court of Appeals 
for the Ninth Circuit (not yet officially reported) af­
firming the judgment of the District Court, is printed 
as Appendix C. The opinion of the Court of Appeals 
denying rehearing, with dissenting opinion, is printed 
as Appendix D.

— 3—

Jurisdiction.
The judgment of the Court of Appeals for the Ninth 

Circuit was entered on November 23, 1976, and amend­
ed December 23, 1976. Petitioners’ timely petition for 
rehearing was denied on April 18, 1977.

The jurisdiction of this Court is invoked pursuant 
to 28 U.S.C. §1254(1).

Questions Presented.
1. Where females receive the same monthly pension 

benefits as do males, but for longer life expectancies 
than males, do Title VII and the Equal Pay Act 
prohibit different pension plan contributions for females 
and males?

2. In deciding the above question, did the Court 
of Appeals properly follow the opinion of the Supreme 
Court in General Electric Co. v. Gilbert?

3. May the lower courts adopt a rule of law re­
quiring a municipal employer to pay higher compen­
sation to females than males in view of the jurisdictional 
limitations of Title VII, the Equal Pay Act, and Article 
III and the 10th, 11th and 14th Amendments of the 
United States Constitution?

3



Statutes and Rules Involved.
Involved herein are Section 3 of the Equal Pay Act 

of 1963 (Pub. L. 88-38, 77 Stat. 56), 29 U.S.C. 
§206(d)(l); and Sections 703(a)(e)(h) and 706(g) 
of Title VII of the Civil Rights Act of 1964, as 
amended in 1972 (the Equal Employment Opportunity 
Act of 1972), 42 U.S.C. §2000e-2(a), (e), (h) and 
§2000e-5(g), the texts of which are printed in Appendix 
A hereto. A summary of legislative history of the Equal 
Pay Act, Title VII and the 1972 amendments is printed 
in Appendix E. The Charter of the City of Los Angeles, 
a state law, §220.1(1)(a)(g) is printed as Appendix F.

Statement of the Case.
This case was brought under Title VII of the Civil 

Rights Act as amended in 1972 (hereafter “Title 
VII”), claiming a violation of Section 703 of the 
Act (42 U.S.C. §2000e-2).

Plaintiffs are civil service employees of the City 
of Los Angeles Department of Water and Power and 
as such are members of a compulsory retirement Plan 
of such City Department (hereafter referred to respec­
tively as the “Plan” and the “Department”).

The Plan provides for several kinds of pension bene­
fits at the employee’s option. The most common is a 
“formula pension”. Such formula is a monthly pay­
ment equal to 2% of average monthly salary paid 
during the last year of employment times the number 
of years of employment. This monthly benefit is guar­
anteed for life. It is a vested right of the employee.

— 4—

4



— 5 —

Because women outlive men, the total amount paid as 
pension to a woman is greater than that paid to a man.

For clarity, this Plan should be contrasted with those 
pension systems which pay men and women the same 
total pension benefits during their respective life spans, 
but pay women smaller monthly pension amounts. See, 
e.g., Henderson v. Oregon, 405 F.Supp. 1275 (1975), 
on appeal in the Ninth Circuit.

The two systems may be analogized to loaves of 
bread accrued at the date of retirement. In the Hender­
son system, women receive the same size loaf as men 
but because the life expectancy is longer, the monthly 
“slices” received by a woman are smaller than those 
received by a man. In contrast, under the Department’s 
Plan, women are to receive the same size “slice” of 
bread each month after retirement but because they 
live longer they must have a longer loaf in order 
to pay all the “slices”.

To fund the Plan, the employees and the Depart­
ment contribute thereto. To fund the “longer loaf” 
payable to females, higher contributions are necessarily 
required for women than for men. Although contribu­
tions made by the women themselves were slightly 
higher than the contributions made by men, the Depart­
ment also contributed disproportionately more for wo­
men than for men.

Further, since each employee has an absolute right 
to the return of all his or her contributions, plus 
a vested pension right, the present worth of all compen­

5



-— 6-

sation paid to female employees is higher than the 
present worth of all compensation paid to male em­
ployees.

The following table shows an example of the present 
value at age 30 of pension benefits of a male and 
a female; and the present value of contributions neces­
sary to fund a formula pension for each, retirement 
being at age 65.

Male Female
1. Age hire 30 30
2. Monthly salary during career $1,000 $1,000
3. Monthly allowance at 65 700 700
4. Present Value of Pension <discounted

at 5V2% interest and 1951 GA Mor-
tality Table: 9,257 11,886

5. Monthly employee contribution to Plan 22.20 25.49
(x 1.1484=

6, Department’s 110% monthly matching
contribution 24.42 28.04

7. Present value (at age 30) of contribu­
tions to fund above pension at 5 Vi %
and 1951 table:
a) Member Contribution 4,069 4,743
b) Department’s 110% matching 4,476 5,217
c) Additional Department contribution 712 1,926
d) Total Department contribution 5,188 7,143

The contributions by the Department for a woman 
employee were always greater than for a corresponding 
man. The total amount of compensation for a woman 
was greater than for a corresponding man.

The plaintiffs herein contended in the trial court 
that differential contributions by men and women were 
per se illegal. The trial court erroneously held that 
even rational differentiation was illegal if related to sex:

“In short, under the Equal Employment Opportunity 
Act of 1972, all stereotypic treatment of persons based 
on . . . sex whether rational or irrational is dead.”

6



— 7—

(Emphasis added) (App. B-7) (This Court has never 
held that gender-based differentiations are per se il­
legal.)2

The District Court enjoined requiring larger contribu­
tions from females and ordered payment of prior “excess 
contributions” with interest to be paid to plaintiffs 
forthwith. The effect of this decision is to require 
a City to compensate its female civil service employees 
at an even higher rate than males.

Your petitioners appealed contending that by relying 
on a 1972 EEOC “guideline” as if it were a regulation, 
the trial court failed to exercise its explicit statutory 
responsibility to impartially and independently interpret 
the law de novo, and that in all events the “guideline” 
was contrary to Title VII and the Equal Pay Act. 
Your petitioners contended that they had committed 
no unlawful employment practice and that the decision 
penalized the employer and discriminated against men, 
by requiring the employer to compensate women at 
a higher rate than men.3

Similarly, to attempt to lump males and females to­
gether as in a so-called “unisex table” would necessarily 
result in males’ contributions subsidizing the females’

2Kahn v. Shevin, 416 U.S. 351, 40 L.Ed.2d 189, 94 S. 
Ct. 1734 (1974); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 
1373, 1377 (1975); Geduldig v. Aiello, 417 U.S. 484, 495, 
41 L,Ed.2d 256, 94 S.Ct. 2485 (1974); Craig v. Boren,
.....  U.S. 50 L.Ed.2d 397 (December 20, 1976); Califano
v. Goldfarb, .....  U.S........ , 45 USLW 4237 (March 2, 1977).

3The Equal Pay explicitly prohibits this. “ [A]n employer 
who is paying a wage rate differential in violation of this sub­
section shall not, in order to comply with the provisions of this 
subsection, reduce the wage rate of any employee.” [29 U.S.C. 
§206(d)(l), Appendix A-l.] (Emphasis added.) To raise the 
“wage rate” as to women generally, “reduces” the wage rate 
as to men by comparison. See Coming Glass Works v. Brennan, 
417 U.S. 188, 207, 41 L.Ed.2d 1, 17, 94 S.Ct. 2223 (1974).

7



- —8—

benefits, and would consequently discriminate against 
males (see footnote 4, Court of Appeals Dissent, App. 
D-13). It’s like having men and women appear to 
contribute to equal size “loaves” but then taking part 
of the loaf of the shorter-living men, to pay “slices” 
to the longer-living women.

The Court of Appeals repeated the errors of the 
trial court. Even when the General Electric opinion 
was issued, a majority failed to recognize those errors.4 
Such ruling undermines this Honorable Court’s authority 
and nullifies its holding and reasoning in General Elec­
tric Co. It interferes with sovereign authority, and 
establishes an erroneous nationwide precedent for pen­
sion, annuity and insurance plans, mandating discrimi­
nation against males, and preferential compensation 
for females.

Additionally, the holdings of the lower courts confer 
on the agencies lawmaking powers that Congress spe­
cifically determined not to grant, which Congress spe­
cifically intended the agencies not exercise, and which 
this Court in General Electric said the agencies did 
not have. Your petitioners were thereby effectively de­
prived of an impartial de novo determination of issues 
of law and fact, which Congress specifically intended 
your petitioners be afforded by independent determina­
tion of the courts.

4We believe footnotes 17 and 18 (General Electric, supra, 50 
L.Ed.2d 343, 356-357) specifically demonstrate the error of 
the Court below and met the precise issues raised by this case.



REASONS FOR GRANTING THE WRIT.
I. The Court of Appeals Decided This Federal Ques­

tion in Direct Conflict With the Supreme Court’s 
Decision in General Electric Co. v. Gilbert.

In its initial opinion, the Court of Appeals took 
a position which was to prove directly contrary to 
the Supreme Court in General Electric Co. v. Gilbert,
1976, ........ U.S..........., 50 L.Ed.2d 343. Then, when
the General Electric case came down two weeks later, 
the majority of the Court of Appeals refused to follow 
it.

The majority’s decision below is directly contrary 
to the Supreme Court in the following particulars:

1. It fails to follow the will of Congress as to 
pay differentials as found by the Supreme Court in 
General Electric.

2. It results in the court below abdicating its re­
sponsibility to render impartial de novo judgment by 
improperly deferring to administrative interpretations of 
the Equal Employment Opportunity Commission (here­
inafter “EEOC”) which were rejected by the Supreme 
Court in General Electric.

3. It departs from the long standing meaning of
“discrimination” in the Constitutional sense. The Su­
preme Court in General Electric rightly indicated it was 
not the intent of Congress to depart from that meaning 
in adopting the “sex” provisions of Title VII. (Gen­
eral Electric, supra, ........ U.S.......... , 50 L.Ed.2d 343,
356-357, fn 18, and 360.)

4. It fails to permit the use of actuarial tables 
to afford equality of treatment in employment under 
a city’s benefit plan, which the Supreme Court in

-— 9 —

9



General Electric indicated was permissible so long as 
not a mere pretext to effect invidious discrimination.
(General Electric, supra, ........ U.S..........., 50 L.Ed.2d
343, 351 and 355-356.)

-— 10—

A. The Will of Congress on Pay Differentials.

Congress never intended to prohibit the payment 
of different compensation to males and females when 
that differential was for a factor other than sex, even 
though the factor might be directly correlated with sex.

The Court recognized this in General Electric,
........ U.S........... , 50 L.Ed.2d 343, 358-359) when it
determined that the Bennett Amendment to Title VII 
[§703(h) of the Civil Rights Act, 42 U.S.C. §2000e-2
(h) ] permitted denial of disability benefits for preg­
nancy, a condition correlated with a sex classification. 
But even if this Court had not reached that conclusion, 
the legislation requires it.

“Differentiation upon the basis of sex” is not ipso 
facto unlawful. The Bennett Amendment to Title VII 
provides that it shall not be an unlawful employment 
practice for an employer to “differentiate upon the 
basis of sex” for purposes of employee compensation 
“if such differentiation is authorized by the provisions 
of section 6(d) of the Fair Labor Standards Act” 
[42 U.S.C. §2000e-2(h)].

Such Section 6(d) was added to the Fair Labor 
Standards Act by the Equal Pay Act of 1963 (77 
Stat. 56). Section. 6(d) provides that employers may 
not discriminate between employees in compensation 
on the basis of sex “except where such payment is 
pursuant to (1) a seniority system (2) a merit system 
(3) a system which measures earnings by quantity or

10



- 11-

quality of production, or (iv) a differential based on 
any other factor other than sex” [29 U.S.C. §206(d) 
(1) ] (Emphasis added),

It is the payment differential based on an “other 
factor other than sex” which Congress thus inserted 
in both Acts to allow differences in compensation for 
factors such as pension payment or pension cost dif­
ferentials based on different longevity. (See Dissent 
Op. at App. D-4.)

The pertinent legislative history of the Equal 
Pay Act and Title VII is detailed in Appendix E, 
and summarized below.

1. Equal Pay Act. In enacting the Equal Pay 
Act, The 88th Congress specifically intended that em­
ployers might continue to differentiate upon the basis 
of sex for compensation purposes so long as the clas­
sification involved actual or good faith differences as 
the basis for the differences in pay and was not a 
mere subterfuge to pay women less. The concept was 
equal pay for equal work. The House Committee noted, 
for example, that an employer might pay male pack­
agers and female packagers differently where there 
were real and not merely nominal differences as the 
basis for the different pay. If the male packagers were 
required to lift heavy boxes and the female packagers 
were not, more compensation might be paid to the 
male packagers. Previous cases have so understood 
the Equal Pay Act. Schultz v. Wheaton Glass Co., 
421 F,2d 259 (3d Cir. 1970) cert. den. 398 U.S. 
905; Ammons v. Zia Co., 448 F.2d 116 (10th Cir.
1971).

Congress also specifically intended that the employer 
would not be required to classify men and women

11



in the same way if to do so would penalize the employer 
by requiring direct or indirect payment of more for 
work done by one class (“women” ) than for the same 
work done by the other class (“men”). (App. E- 
1.)

The House Committee rejected the administration’s 
bill which would have prohibited differentiation on 
the basis of sex.

To ensure the result it intended, the House adopted 
statutory exceptions which were to be not merely “de­
fenses” but were rather “exemptions from the operation 
of the statute.” (App. E-l, 2.) The Committee Report 
stated that it was only prohibiting those pay differentials 
that were based solely on sex, and that it had provided 
the three specific exceptions and one broad general 
exception to operate as “exemptions” from the Act. 
Thus, the broad general exception for “any other factor 
other than sex” was meant to permit classification 
by sex for purposes of different compensation if there 
were some other factor other than sex (e.g., lifting 
heavy packages as opposed to light packages or dif­
ferences in other costs in employing women), that 
was the basis of the pay differential.

The controlling legislative history demonstrates it 
was not the intent of Congress to require the employer 
to pay women more than men, but only to prohibit 
paying women less when there was no rational basis 
for the differential. Longevity and the cost of funding 
for it was an “other factor” specifically recognized by 
both houses. (App. E-4 fn.2.)

The Senate history shows the same intent. The Senate 
Committee bill provided only the broad exclusion in its 
bill. Its report stated that the broad exception would

- 1 2 -

12



— 13

be allowed not only in the specific cases the Committee 
mentioned but also where “an employer will be eco­
nomically penalized by the elimination of a wage dif­
ferential.” The House history shows the House likewise 
intended such as part of the broad exception (App. 
E-3, 4.) The Senate adopted the House bill as better 
expressing its intent. (App. E-5.)

2. Title VII. In enacting Title VII, the same 88th 
Congress always intended to legislatively treat discrimi­
nation on account of “sex” differently than discrimina­
tion on account of “race or color.” After it was proposed
to add “sex” to the bill in the House, the one serious 
argument advanced in favor of such amendment was 
that the Amendment was necessary to ensure the “color­
blind” impact of the law among women in the labor 
market. After the “sex” amendment was passed, the 
House then added “sex” as a bona fide occupational 
qualification (without objection of any member). In 
contrast the House explicitly rejected an amendment 
to make “race or color” a bona fide occupational 
qualification. (App. E-6.)

When the House Bill (HR 7152) reached the Senate, 
questions were raised by Senator Dirksen and others 
as to the possible conflict with the Equal Pay Act.

Interpretive Memoranda5 were introduced to the ef­
fect that classification by sex “where there is a rational 
basis” was not prohibited; and further that the standards 
of the Equal Pay Act would be applicable even under 
Title VII of the House Bill. (App. E-8.) This inter­
pretation was given as to the House Bill, before Senate 
amendments enacted these points into express law.

5This Honorable Court also relied on such Memoranda in 
International Brotherhood of Teamsters v. United States et al 
.....  U.S........ , 45 L.W. 4506, 4513 (May 31, 1977).

13



— 14—

An amendment in the nature of a substitute bill 
(Amendment No. 1052) was then introduced by Sen­
ators Dirksen, Humphrey, et al. It provided that 
three of the Equal Pay Act exceptions would also 
be exceptions to the Title VII prohibitions—differen­
tials based on a good faith merit system, quantity 
and quality of work or seniority system. (42 U.S.C. 
§2000e-(h); A-3; 29 U.S.C. §206(a)(l); App. E-8).

The fourth exception of the Equal Pay Act and 
its general policy were expressly adopted by the Bennett 
Amendment. The manner in which the amendment 
was adopted demonstrates the intent.

Prior to the introduction of the Dirksen-Humphrey 
substitute, Senator Bennett proposed to amend the pend­
ing House Bill. Thereafter, both Senator Dirksen and 
Senator Humphrey expressly accepted the Bennett pro­
posal as an amendment to their proposal in the nature 
of a substitute bill. All three Senators explained the 
effect of so accepting the Bennett Amendment. Senator 
Dirksen explained that the pending amendment recog­
nized those exceptions that were carried in the earlier 
Act. (App. E-9.)

The Senate then voted to substitute the language 
of the Humphrey-Dirksen bill (as amended by the 
Bennett Amendment) for the language of the House 
bill. Such bill was then the pending business and subject 
to amendment.6

6Proper procedure requires of course that an amendment in 
the nature of a substitute be voted on “twice”. “Even if the 
[amending] paragraph constitutes the entire resolution and the 
motion to substitute is adopted, it is necessary then to vote 
on adopting the resolution as amended since it has only been 
voted to substitute one paragraph for another.” Roberts’ Rules of 
Order (rev. ed.), p. 142. This procedure protects the right of

14



- 1 5 -

Senator Humphrey was specifically asked about the 
impact of the pending bill on retirement systems. Sen­
ator Randolph, who asked the question, had been co­
author of the Senate subcommittee’s equal pay bill. 
Senator Humphrey was the floor manager of the pend­
ing civil rights bill and had introduced the Senate 
Committee equal pay bill on the Senate floor. He 
also had expressly accepted the Bennett Amendment 
to clarify the intent of the Humphrey-Dirksen bill. 
In answer to Senator Randolph’s question Senator 
Humphrey said that accepting the Bennett Amend­
ment made it unmistakably clear that “differences of 
treatment in industrial benefit plans, including earlier 
retirement options for women, may continue in opera­
tion under this bill if it becomes law.” (Emphasis 
added.) (See General Electric, supra, 50 L.Ed.2d 343, 
359.)

The House thereafter adopted the Senate bill. In 
so doing it specifically affirmed this intent. (App. 
E-10, 11.)

When we set forth to the Court below the intent of 
the law as expressed by Senator Humphrey, the Court 
improperly rejected it as an “erroneous interpretation”. 
(App. C-17, 18.) After this Honorable Court relied 
on Senator Humphrey’s views as expressing the intent 
of the law (General Electric, supra, 50 L.Ed.2d 343, 
359) the Court of Appeals still failed to follow that 
intent. Thus, while both Congress and the Supreme 
Court had indicated the proper administration of the 
Bennett Amendment and the specific legislative intent, 
the Court of Appeals ignored them both.

an individual to vote in favor of substituting the language of 
proposal “B” in preference to proposal “A”, and then to vote 
against enacting “B” as law.

15



— 16—

Its rationale on rehearing was the further erroneous 
conclusion of law that this Honorable Court in the 
General Electric case did not exercise its impartial 
judgment on legislative intent but relied “more heavily” 
on “finding” a conflict between interpretations of the 
Wage and Hour Administrator and the EEOC, and 
therefore deferred to the Wage and Hour Administrator 
instead of the EEOC to decide General Electric. Such 
rationale besides being incorrect, was also an egregious 
error of law as to the Courts’ responsibility and the 
effect to be given administrative interpretations.

While this Honorable Court in General Electric rec­
ognized the conflicts, the majority below chose to find 
no conflict. (Compare the comments of the Dissent 
noting clear conflicts among the agencies and internal 
inconsistency within the rulings of the EEOC, App. 
D-7, 8). Although legislative intent was clear the lower 
courts “deferred” completely to a contrary adminis­
trative “interpretation”.

What the majority below ignored was the fact that 
this Honorable Court exercised its independent, im­
partial judgment as to legislative intent and found 
that the Bennett Amendment allowed pay differentials 
for an “other factor other than sex” although the 
factor was correlated with sex, e.g., pregnancy. In sup­
port of that position, this Honorable Court recognized 
that “longevity” was another “other factor other than 
sex” which could be the basis for differential compensa­
tion and was already accepted as such by the Wage and 
Hour Administrator of the Department of Labor. 29 
CFR §800.116(d) (1975). (General Electric, supra, 
50L.Ed.2d 343, 359; see Dissent at D-7.)

The lower courts refused to accept 29 CFR §800.116
(d) (1975) as administrative recognition of sex-corre-

16



lated longevity as a factor other than sex allowing 
pay differentials.

Yet, until this case, everyone has understood the 
administrative bulletin to mean that longevity was an 
“other factor other than sex” which would warrant 
pay differentials by the employer.

For example, as recently as 1975 the Secretary of 
Health, Education and Welfare said:

“Accordingly [the Secretary] continues to follow 
the Executive Order regulations in requiring that 
fringe benefit plans provide either equal periodic 
benefits to members of each sex or equal contribu­
tions by the employer for members of each sex.
. . .” (vol. 40 Fed. Reg. p. 24135, June 4,
1975) (emphasis added). (See also similar ruling 
by Office of Federal Contract Compliance, 41 CFR 
§60-20.3(c) (1970).)

Given greater female longevity it is impossible to 
have equal periodic benefits unless either the females 
or the employer or both contribute more for females, 
or the males subsidize the females. These rulings thus 
implicitly recognize the fact that longevity is a factor 
other than sex for which differential compensation may 
be paid to the sexes.

Congress enactment of the Pension Reform Act also 
recognizes this fact. (See p. 26 infra.) For the Court 
of Appeals to refuse to recognize longevity as an “other 
factor other than sex” and to rule that a pay differen­
tial based thereon is prohibited is a failure to give 
effect to the law as enacted by the Congress, and 
as interpreted by this Court in General Electric.

B. Will of Congress on Administrative Interpretations.

In its original opinion the Court of Appeals also 
found conflicts among administrative interpretations. 17

- —17—



18—

(App. C-19.) In its subsequent opinion the majority 
could “find” no inconsistency. (App. D-3.) Thus the 
holding of the latter decision seems to be that lower 
courts may use fluctuating and conflicting interpreta­
tions of administrative interpretations as the basis for 
rejecting both the decision of this Honorable Court 
and explicit Congressional intent in enacting the law.

Such view is contrary to this Court’s holding in 
General Electric,—that the courts shall independently 
and impartially construe the statute. It is also contrary 
to specific legislative intent to the same effect, which 
intent would be controlling even if General Electric 
had not been decided. Further the content of the specific 
administrative interpretation relied on in the second 
Court of Appeals’ decision contradicts the statutory 
language and explicit legislative history. Finally, in 
giving effect to one of the conflicting administrative 
interpretations in order to hold against the defendant, 
the Court of Appeals gave an effect thereto directly 
opposite to Congressional intent, as to the effect to 
be given any administrative intrepretation.

In enacting the Equal Pay Action, the 88th Congress 
was well aware of the Skidmore decision construing 
the Fair Labor Standards Act. (Skidmore, et al. v. 
Swift & Co., 323 U.S. 134 (1944); See App. E- 
12-13.) In view of that decision, Congress acted specifi­
cally to ensure that administrative interpretations not 
be given the status of “interpretive regulations” and 
not be used against the defendant. They are not to 
be used as a substitute for the court’s impartial judgment 
on matters of law or on matters of fact. One basic 
reason for so limiting the administrator was to ensure 
that the will of Congress as expressed in the statute

18



— 19—

be given effect, and that any broader interpretations 
by a partisan administrator not be substituted therefor. 
(App. E-13.)

In considering legislative intent it is as important 
to see what Congress rejected as what it enacted.

In the 88th Congress, the equal pay bill proffered 
by the Administration would have given the adminis­
trator authority to issue “legislative regulations”. Con­
gress determined not to give either that authority or 
the authority to issue “interpretive regulations”. Con­
gress expressly limited his authority to interpretative 
bulletins, which “have no other significance, except 
that if an employer relies on this interpretative bulletin, 
he is protected. He is not in violation if he has done 
something in reliance upon those interpretative bulletins 
. . (App. E-13.) (Emphasis added.)

Under the Equal Pay Act, the Secretary is a prosecu­
tor. As a Prosecutor, the Secretary has inherent author­
ity to inform the public what cases he will prosecute, 
and Congress expressly recognized that inherent author­
ity. However Congress specifically intended that the 
Secretary’s interpretations could be used in court only 
as a shield by the defendant, and not as a policy­
making sword in the hands of the administration (App. 
E-13.)

It is well established that the weight (if any) “to 
be given to interpretative rule varies with its statutory 
and administrative context. . . .” United States v. Stapf, 
375 U.S. 118, 127 n. 11, 84 S.Ct. 248, 255, 11 
L.Ed.2d 195 (1963). And here Congress intended 
that bulletins be given no weight in the scales of 
justice against a defendant, but only in defendant’s 
favor.

19



-20—

It is significant that in 13 years under the Act, 
no employer so far as we know, has been prosecuted 
either for paying different pension benefits to men 
and women or for requiring different contributions 
from men and women, based on longevity.

Even if the Secretary were to issue a new bulletin 
saying that Labor was going to prosecute plans requir­
ing differential contributions such bulletin would be 
entitled to “no standing in court,” as a matter of 
legislative intent. (App. E-13.) The defendant would 
be entitled to rely as a defense, on the plain meaning 
of the previous administrative bulletin, just as the Su­
preme Court relied on the plain meaning of such bulle­
tins in General Electric. Finally, the question would 
be not whether the defendant violated any bulletin 
but whether the statute had been violated. The Legis­
lature has directed that the Secretary show that the 
exceptions do not apply. On that issue the defendant 
is entitled to the impartial decision of the court. To 
give effect to a position advocated by the Secretary 
because previously published in a bulletin denies the 
defendant an impartial determination by the Court 
that Congress intended the defendant have.

However, in the instant case five days before oral 
argument in the Court of Appeals, an attorney for 
the Secretary of Labor filed an “amicus” brief urging 
the court to disregard the plain meaning of its bulletins 
on pensions. Instead, the “amicus” urged that a different 
bulletin was now “controlling” and it should now be 
construed so that it did not conflict with a post-1972 
EEOC position. That new EEOC position was that 
a retirement plan had to have equal benefits and equal 
employee contributions (29 CFR §1604.9(f) (1972);



— 21
compare prior position 30 F.R. 14926, 14928 Dec. 
2, 1965, Section 1604.7).

Obviously the latter is impossible unless women as 
a matter of law must be paid more compensation; 
the several administrative positions are irreconcilable. 
(See Dissent, App. D-7, D-8.)

The issue of law, however, is the intent of Congress 
and not whether there is unanimity among administra­
tive interpretations. By giving “deference” to a supposed 
lack of conflict among some of the administrative inter­
pretations, the lower court failed to exercise its consti­
tutional and statutory responsibility to independently 
and impartially determine Congressional intent. 
General Electric clearly holds the courts should not 
so abdicate their responsibility. Further, the specific 
Congressional intent under both the Equal Pay Act 
and Title VII is that the courts, not the administrative 
agencies, should be the law-interpreting body.

Moreover, even where an agency has express Con­
gressional authority to issue “legislative regulations”, 
a defendant may challenge a regulation on the ground 
that it is invalid because inconsistent with the statute 
and the intent of Congress. Obviously where such a 
challenge is raised, the agency’s interpretation of the 
law as expressed by its regulation is not the measure 
of the intent of the law. For the Court of Appeals 
to have rejected the legislative history which showed 
the law’s intent, as an “erroneous interpretation” of 
the law’s intent, and to do so based on newly advanced 
administrative interpretations, was not only fallacious 
but also denied your petitioners a hearing and determi­
nation on one of the precise issues of law your peti­

21



-22-

tioners raised, namely that the content of the adminis­
trative interpretation was not in accordance with the 
statute and its intent.

On that issue, the language of the Bennett Amend­
ment and the legislative history of the equal pay bills 
flatly contradict the content of the administrator’s bulle­
tin that the majority relied on in its second opinion 
below. The Bennett Amendment says “it shall not 
be an unlawful employment practice . . .  to differentiate 
upon the basis of sex in determining the amount of 
the wages or compensation paid or to be paid. 
. . .” (Emphasis added.) On the equal pay bills, 
the Senate Committee Report said that under the single 
broad exception provided in its bill, wage differentials 
based on employer cost differentials were not outlawed. 
In the House, specific legislative history likewise shows 
the same express intent not to prohibit differentiation 
by sex as to wages and costs. (App. E-4.) The House 
bill, noted Senator Dirksen, better expressed Senate 
intent and was thereafter adopted by the Senate. (App. 
E-4.)

In sharp contrast to this statutory language and 
clear history that “to differentiate upon the basis of 
sex” is not ipso facto unlawful, the bulletin of the 
Secretary says that compensation differentials may not 
be based on cost differentials because (it says) a com­
parison of cost differentials upon the basis of sex 
is ipso facto unlawful because differentiation upon the 
basis of sex is ipso facto unlawful. (App. E-18.) This 
contradicts the statute and the bulletin on pensions. 
Yet this is the bulletin the majority relied on in denying 
rehearing. (App. D-3.)

22



The bulletin is not faithful to the law. It would 
seem that even the issuance of that bulletin by the 
Secretary exceeds the constitutional authority of the 
executive branch which is constitutionally charged “to 
take care that the laws be faithfully executed.” (Const. 
Art. II, §3.)

For the Court of Appeals to rely on such bulletin 
not only exalts the agent over the principal, when 
the principal has expressly stated that the agents’ inter­
pretations shall have no standing in court except as 
a defense for the defendant, but it also implies to 
the executive branch that it is “above the law”, that 
it has no duty to be faithful to the laws Congress 
enacts, that it need not take care regarding the will 
of Congress, but may instead follow the dictates of 
its own will.

The Legislature directed that the Secretary must show 
that a pay differential is not based on an “other factor 
other than sex,” or any other statutory exception. For 
the Court of Appeals to “rely” on the administrator’s in­
terpretation that compensation differentials may not 
be based on employer cost differentials is tantamount 
to a repeal of all the statutory exceptions, since all 
depend on cost. It says not only are there no exemptions 
but also that the courts will hear no defenses. It is 
to adopt the erroneous rationale of one bulletin of 
the administrator (that differentiation by sex is prohibit­
ed by the statute), when the statute on its face and 
its legislative history states the exact opposite.

By hypothesis, any pay differential would rest in 
part on differences in other costs as its practical justifi­
cation. So if costs correlated to sex differentiation were 
no justification for a pay differential correlated to

— 2 3 —

23



- 2 4 -
sex, there would be no statutory exceptions. But 
Congress expressly stated and intended the contrary.

Finally, this Honorable Court has relied on bulletins 
to hold in favor of defendant in General Electric, but 
the court below relied on a bulletin to hold against 
defendant. This also was contrary to congressional in­
tent.

Moreover, as recently as 1972 Congress specifically 
rejected proposals to grant the EEOC quasi-legislative 
and quasi-judicial authority, and rejected proposals to 
define unlawful discrimination more broadly.

Having failed in the Legislature, the EEOC then 
issued new “guidelines” post-1972 and sought as an 
“amicus” in both courts in the instant case to have 
the courts adopt those new interpretations as defining 
prohibited conduct under the statute.

The success of this improper action by the EEOC 
is shown by the fact that the District Court made 
an express finding that the EEOC “amended its regula­
tions” in 1972, and the District Court based its judg­
ment on such “amended regulation.” (App. B-10-12.)

The EEOC had similar success in the Court of 
Appeals. While this Court explicitly pointed out in 
General Electric that “guidelines” are not regulations, 
even the Dissenting Opinion expressly referred to them 
as “regulations.” (App. D-8.)

The EEOC is a prosecutor. But it has clothed itself 
with authority it does not have, which this Court has 
plainly said it does not have, and yet which the lower 
courts persist in erroneously assuming that it does 
have, all to the injury of your petitioners.

In fact, Congress in 1972 declined to grant such 
authority to the agency, based on its finding that the

24



- 2 5 -

agency was not impartial, but an advocate of policies 
beyond those which Congress chose to enact into 
law. (App. E-16-17.)

For the lower courts to give effect to “guidelines” 
as if they were impartial pronouncements above the 
highest court and the Constitution was to act in excess 
of the courts’ own jurisdiction as conferred by statute.
(42 U.S.C. §2000e-5, App. A-4.) Congress expressly 
limited that jurisdiction in enacting Title VII in 1964.
It expressly reaffirmed certain of those limitations in 
1972. App. E-16.)

The jurisdictional limitations of the statute contem­
plate that the courts give effect to the statute both 
in respect to what conduct is prohibited and in respect 
to the absence of quasi-legislative and quasi-judicial 
authority in the agency. For the lower courts to have 
disregarded the Congressional intent on either point 
is to act outside their own jurisdiction as expressly 
limited by the statute. It also denies to the Petitioners 
that right to an impartial determination of issues that 
both the Constitution and the statutes guarantee. As to 
your individual petitioners it is a denial of due process 
of law guaranteed by the 14th Amendment. II.

II. The Decision of the Court of Appeals Presents an 
Important Federal Question Which Has Nationwide 
Impact on the Pension, Annuity and Insurance 
Industry, as Well as on Cities and States.

The funding of pensions, annuities and insurance 
plans depends upon an actuarial determination of aggre­
gate risk, dividing the projected cost among the mem­
bers of the group covered. This is universally done by 
the use of separate mortality tables for males and 
females because of the significant difference in life ex­
pectancy between females and males. For example, 25



— 26-

a graph offered by amicus for respondents in the 
Court of Appeals, showed that given a sample of
100,000 males and 100,000 females who retire at 
age 65 and live through age 107, by the median 
age 83 where the two mortality curves intersect, 65,600 
males will have died and only 48,800 females, 34,400 
males would remain, and 51,200 females. This statistic 
means there would be 48% more females to pro­
vide retirement benefits for at age 83 than for the 
males at that age. In other words, beginning at age 
65, and each year until age 83, more males die than 
females. Consequently more funds must be available to 
provide benefits to the larger number of females alive 
after that age.

The entire industry depends upon actuarial tables 
which thus separate males from females. Indeed, Con­
gress under ERISA [Pension Reform Act of 1974, 
P.L. 93-406, 88 Stat. 829] set up three agencies for 
federal pension law enforcement, the Internal Revenue 
Service, the Department of Labor and the Pension 
Benefit Guarantee Corporation. Actuarial requirements 
are stressed under the Act [26 U.S.C. (IRC 1954) 
§410 et seq., Act §§302-305], The Pension Benefit 
Guarantee Corporation in December 1975 specifically 
set up no less than six such sex-differentiated tables for 
funding [40 F.R. 57980, 57982, 29 C.F.R. 2610, 
2611], The Court may properly look to recent Congres­
sional action in the pension area to assist in its inter­
pretation of other laws as applied to pension problems. 
Espinoza v. Farah Mfg. Co., 414 U.S. 86, 38 L.Ed.2d 
287, 94 S.Ct. 334 (1973). On the other hand there 
are to our knowledge no unisex mortality tables. (Dis­
senting Op., D-4.) Even if there were, their use would 
discriminate against males.



■27—

The decision of the Court of Appeals will have 
a heavy financial impact on retirement plans across 
the country. For example, in an affidavit filed in the 
New York case of Diana L. Spirt v. TIAA-CREF 
(N.Y., S.D. 74 Civ. 1674), the actuary estimated 
that changing that system alone (which involves 
equal contributions for unequal monthly benefits) to 
a unisex system, over the collective lifetimes of 100,000 
retired males and 100,000 retired females would cost 
2.3 billions of dollars. Whether a court orders equalizing 
monthly employee contributions or monthly benefits, 
the cost of the system must increase, not to mention 
the additional cost of refunds ordered. Cases in this area 
are now proliferating in the federal courts across the 
country. To name a few: Spirt v. TIAA-CREF, supra; 
Henderson v. Oregon, 405 F.Supp. 1271 (1975) on 
appeal in the Ninth Circuit; Rosina Smith et al. v. 
County of Los Angeles (Cal.C.D. 74-253); Peters et al. 
v. Wayne State University et al. (Mich. E.D. 670- 
165); EEOC v. Colby College (Maine D.C. S.D. 75- 
136); Bailey v. Los Angeles County (75-3863 C.D. 
Cal.); American Nurses Assoc, et al. v. Board of 
Governors of the University of North Carolina et al. 
(USDC Mid. D. N. Carolina C 75-558-G).

Your petitioners have been contacted by other public 
retirement systems which have either unequal contribu­
tion rates or unequal benefit rates based upon recog­
nized actuarial tables. They await the outcome of this 
case to decide whether they must change their systems 
at great expense and face additional extensive liability 
for “back pay,” as a result of complying with laws 
such as California Government Code §45342 which 
require actuarial soundness (See App. F).

27



-28—

The Court of Appeals, in a simplistic error, said 
that equalization could be arrived at by spreading 
the cost over all of the members. Aside from the 
fact that such discriminates against the male employees, 
it would be in violation of the Equal Pay Act. This 
Court held in Corning Glass Works v. Brennan, 417 
U.S. 188, 207, 41 L.Ed.2d 1, 17, 94 S.Ct. 2223
(1974) that increasing the burden on one class of 
employees to provide “equal pay” for another class 
is in violation of the Equal Pay Act. (See also 29 
U.S.C. §206(d)(l), A-l.)

To allow the decision below to stand will invite 
an unnecessary multiplicity of lawsuits to “equalize” 
benefits or contributions, or both; and to recover back 
contributions or increase future benefits, or both.

III. An Award of Back Contributions From a Local 
Government Entity and the Permanent Injunction 
Is in Excess of the Court’s Jurisdiction as Limited 
by Title VII and by Article III and the 10th, 11th 
and 14th Amendments of the United States Con­
stitution.

There are several major jurisdictional limitations ex­
ceeded by the decisions below.

The 1972 Amendments to Title VII were enacted 
by Congress pursuant to §5 of the Fourteenth Amend­
ment which empowers Congress to enforce the Four­
teenth Amendment by appropriate legislation. (Garland
M. Fitzpatrick v. Frederick Bitzer, 427 U.S. 445
(1976).

The Honorable Court has construed the Due Process 
and Equal Protection provisions as not prohibiting clas­
sifications such as defendants’ Plan where there is a 
rational basis therefor. Kahn v. Shevin (1974) 416 

28 U.S. 351, 40 L.Ed.2d 189, 94 S.Ct. 1734; Schlesinger



-29-

v. Ballard (1975) 419 U.S. 498, 42 L.Ed.2d 610, 95 S. 
Ct. 72; Geduldig v. Aiello (1974) 417 U.S. 484, 41 
L.Ed.2d 256, 94 S.Ct. 2485.

Similarly the statute on its face and its legislative 
history show that a classification related to sex “where 
there is a rational basis” (App. E-9) is not prohibited 
unless the plaintiffs show such is not in good faith 
or is a subterfuge. See Schultz v. Wheaton Glass Co., 
421 F.2d 259 (3d Cir. 1970) cert. den. 398 U.S. 
905 (Dissent, D-9).

It cannot be supposed that Congress is empowered 
by Section 5 of the 14th Amendment to enact legisla­
tion prohibiting classifications that are permitted by 
the 14th Amendment. Hence if Congress had enacted 
a law prohibiting rational classifications or requiring 
irrational ones, it would be acting in excess of its 
14th Amendment power.

Consequently, assuming arguendo that the trial court 
was correct that “rational” classification is prohibited 
(and irrational classification therefore required) by 
Title VII, it would follow necessarily that to that 
extent Congress acted in excess of its 14th Amend­
ment power.

Such exercise of power would therefore have to 
be sustained, if at all, under some other grant of 
power—the commerce clause, for example.

But this Honorable Court has held that the Tenth 
Amendment is a limitation on the exercise of the 
commerce clause power in respect to cities. Such amend­
ment provides that powers not delegated to the United 
States are reserved to the States, and the authority 
of Congress to regulate in a manner which invades 
local sovereignty is limited thereby.

29



— 30-

Thus this Honorable Court has held that Congress 
may not regulate compensation of civil service em­
ployees. The court stated in National League of Cities 
v. Usery (1976) 426 U.S. 833, 49 L.Ed.2d 245, 
253, 96 S.Ct.................. :

“We have repeatedly recognized that there are 
attributes of sovereignty attaching to every state 
government which may not be impaired by Con­
gress, not because Congress may lack an af­
firmative grant of legislative authority to reach 
the matter, but because the Constitution prohibits 
it from exercising the authority in that manner 
(Emphasis added.)

Management of the City Department’s retirement 
plan is likewise a function of local government under 
state law (Charter §220.1, California Stat. 1937, Chap. 
3, Resolutions, p. 2627). (App. F .) The City Charter 
Section 220.1, and similarly, California Government 
Code Section 45342, require that the Plan be main­
tained on a sound actuarial basis. Requiring refunds 
of previous contributions prior to retirement interferes 
with actuarial soundness in a manner not required 
by equal protection or due process.

Further, despite the Court’s Opinion (App. C-24) 
that the Department could pass on the cost of refunds 
by increasing all contributions or lessening bene­
fits, such is not permitted by State law or by the 
Equal Pay Act. (State Law) Houghton v. Long Beach, 
164 Cal.App.2d 298, 306 (1958); Hemy v. City of 
Los Angeles, 201 Cal.App.2d 299, 314; (Equal Pay 
Act) (Corning Glass Works v. Brennan, 417 U.S. 188, 
207, 41 L.Ed.2d 1, 17, 94 S.Ct. 2223 (1974), 29 
U.S.C. §206(d)(l)). The Department is penalized by

30



—31

the decision because it must now reach into other 
city revenues to pay the difference. (See Edelman 
v. Jordan (1974) 415 U.S. 651, 653.)

It is likewise interfered with by the permanent injunc­
tion. Any legislation of Congress under either the Four­
teenth Amendment or under the commerce clause, for 
example, which interferes with the authority of local 
governmental entities to establish pension plans for 
its civil service employees would be an invalid invasion 
of local sovereignty. So would a law requiring payment 
of higher compensation to female civil service employees 
than males.

For the same reasons, the permanent injunction of 
the lower court and its award of back contributions 
exceeds the limitations of the Tenth Amendment. Such 
amendment is a limitation on all the powers delegated 
to the United States, including the judicial power dele­
gated by Article III, and not merely a limitation on 
those legislative powers that have been delegated to 
the Congress by Article I. As the Congress may not 
enact a law which interferes with local sovereignty, 
so the Court may not issue a decree which so interferes.

Assuming arguendo that by enacting Title VII Con­
gress had enacted a law which required the payment 
of higher compensation to female civil service employees 
than to males, for the courts to give effect to such 
a law would exceed the constitutional limitations on 
the courts’ power. The court may not so act. That 
was the precise holding of Marbury v. Madison, 1 
Cranch 137, 2 L.Ed. 60 (1803). The Court held 
that it would not exercise a power (even though Con­
gress purported to confer or acknowledge it) when 
to do so would have the effect of the Court exceeding

31



— 32-

constitutional limitations upon it. The duty of the Court, 
the Chief Justice said, is to “read and obey” the law 
which limits the Court’s power.7

For the same reasons dealing with the Tenth Amend­
ment, we submit that there also is a violation of the 
Eleventh Amendment by the decisions below. In Fitz­
patrick v. Bitzer, supra, 427 U.S. 445, 456, fn. 11, 
the Court noted that such challenge was not raised 
there. We have raised and do raise such a challenge.

There is another major jurisdictional limitation ex­
ceeded by the decisions below. Section 5 of the 14th 
Amendment gives the Congress the authority to enforce 
that article by appropriate legislation. That grant of 
authority is, we submit, exclusive. Especially where 
(as here) the Congress has exercised that authority, 
where it has enacted certain policies into law, it is 
not within the powers of either the executive or the 
judicial branch to give effect to different policies even 
for the purposes of “enforcing” the 14th Amendment. 
Any different view would lead to governmental chaos.

7 A different view of judicial power was indicated by the 
infamous and erroneous Dred Scott decision more than half a 
century later. The latter view was that the Constitution gives “pre­
rogative authority” to the Courts to “review” legislation. Dred 
Scot v. Sanford, (1856) 19 How. 393, 15 L.Ed. 691. In contrast, 
the rationale of Marshall, C.J. was that the Court did not have 
prerogative power; it would give effect to a law of Congress 
unless by so doing the Court would itself exceed some constitu­
tional limitation, which limitations apply to the Court as well as 
to Congress. The Dred Scott decision was the second in history 
to nullify congressional action. In his first Inaugural Address, 
President Lincoln rejected the Dred Scott theory of the Court’s 
power. The errors of Dred Scott have never been judicially 
acknowledged.

32



•33

We have above noted the express jurisdictional limita­
tion on the executive’s following different policies. The 
executive is charged that “the laws be faithfully exe­
cuted” (Art. II §3). The limitation of faithfulness 
likewise applies to any agent (such as EEOC) that 
is an agency of Congress, its principal.

Express limitations also exist with respect to the 
courts’ authority. Congress has clear constitutional au­
thority to specify the jurisdiction of the courts. Const. 
Art. III. Sheldon v. Sill (U.S. 1850) 8 How. 440, 
12 L.Ed. 1147, Ex Parte McCardle (U.S., 1869) 7 
Wall. 506, 19 L.Ed. 264.

Thus, where, as here, Congress has not only exercised 
the authority granted by Section 5 of the 14th Amend­
ment, but has also limited the courts’ jurisdiction under 
that statute to those “adverse actions'” as are defined 
by the statute and are “intentionally engaged in”, it 
is not within the courts’ power to develop broader 
definitions of unlawful discrimination in terms of “sys­
tems or effects” or otherwise. In fact it was to prevent 
that possibility that led to adopting the jurisdictional 
limitation in 1964. While in 1972 it was proposed 
to permit the development of a broader definition of 
unlawful discrimination in terms of “systems and ef­
fects”, that proposal was rejected and the jurisdictional 
limitations expressly reaffirmed. (App. E-15-18.)

Since 1972 the courts may now exercise broader 
remedial authority than under the 1964 statute, after 
it has been found that an “adverse action” as statutorily

33



— 34-

defined has been “intentionally engaged in”. However 
Congress in 1972 again precluded the courts from 
any “common-law-making” role in defining unlawful 
employment practices by express reaffirmations of the 
jurisdictional limitations of Title VII. (See App. E- 
16. )

Of course Congress may so limit the courts. “There 
can be no question of the power of Congress to define 
and limit the jurisdiction of the inferior courts of 
the United States.” Lauf v. E. G. Skinner & Co., 
303 U.S. 323, 330 (1938).

The trial judge herein seemed unconcerned with the 
statutory language. He did not even make the findings 
which the statute requires as the condition precedent 
to the exercise of the courts’ remedial jurisdiction under 
the statute (App. B-10-12), namely that the City was 
“intentionally engaging in” an unlawful employment 
practice as stautorily defined. The trial court likewise 
ignored the jurisdictional limitation on an award of 
“back pay”—that such shall not be awarded if the 
action of the employer was “for any reason other” 
than discrimination8 on account of sex (App. A-5). 
These lapses of the trial court, plus its reliance on 
the EEOC “amended regulation” demonstrate that the

8There was extensive and careful attention given to the 
meaning of “discrimination” in the 1963-64 debates. The Con­
gressional Record is very clear that although the opponents of 
the bill charged it had a new broad, sweeping meaning, the 
proponents of the bill whose intent is controlling said that 
it had the same well established meaning it already had under 
a number of already existing statutes. (110 Cong. Rec. 7218, 
5803, 5437, 7477.)

34



■35-

trial court was not exercising its statutory judicial juris­
diction, but some new legislative jurisdiction.

That the Court may not act in excess of statutory 
jurisdiction (even if it had “enforcement” authority 
under the Fourteenth Amendment) is one of the founda­
tions of the “checks and balances” of American gov­
ernment. See Sheldon v. Sill (U.S. 1850), 8 How. 
440, 12 L.Ed. 114); Ex Parte McCardle, 7 Wall 
506, 19 L.Ed. 264.

Conclusion.
Here, classification for purposes of the pension sys­

tem does not adversely affect the “employment status” 
of any individual woman employee. While there is 
differentiation between men and women, upon the basis 
of sex there is no discrimination “against” an individual 
with respect to compensation because of sex. Therefore 
no adverse action or unlawful employment practice 
as defined by statute has been shown under either 
subsection of 42 U.S.C. §2000e-2(a).

Additionally Title VII specifically provides that it 
shall not be an unlawful employment practice to “dif­
ferentiate upon the basis of sex in determining the 
amount of wages or compensation” if such differential 
in payment is for any “other factor other than sex.” 
Here the factor was life expectancy or longevity. For 
the courts below to expand the definition of unlaw­
ful employment practices to prohibit differential pay­
ment for that factor where made on a rational basis, 
without any showing that such was done as a subter-

35



fuge and not in good faith, exceeded the courts’ power 
as limited by Article III of the Constitution and Title 
VII, (42 U.S.C. §2000e-5(g)) in addition to violating 
the 10th, 11th and 14th Amendments.

Hence, a writ of certiorari should issue to review 
the judgment and opinion of the United States Court 
of Appeals for the Ninth Circuit or alternatively to 
command the Court below to re-examine its decision 
in the light of General Electric Co. v. Gilbert, the 
statutes, the legislative history, and the United States 
Constitution.

— 36—

Burt Pines,
City Attorney,

Edward C. Farrell,
Chief Assistant City Attorney 

for Water and Power,
J. David Hanson,

Deputy City Attorney,
David J. Oliphant,

Deputy City Attorney,
By David J. Oliphant, 

Deputy City Attorney,
Attorneys for Petitioners .

36



APPENDIX

Appendix A. Fair Labor Standards—29 U.S.C. 
§ 206

42 U.S.C. § 2000e-2. Unlawful Employment 
Practices

42 U.S.C. § 2000e-5(g)

Appendix B. Memorandum and Order Granting 
Plaintiffs’ Motion for Preliminary Injunction
Findings of Fact

Conclusions of Law

Appendix C. Opinion of the Court of Appeals for 
the Ninth Circuit

Appendix D. Opinion of the Court of Appeals 
Denying Rehearing

Kilkenny, Circuit Judge Dissenting

Letter to West Publishing Company for Changes 
in Opinion Dated May 3, 1977

Revised: May 5, 1977

Appendix F. Charter Sections 220.1(1 )(a) and
(g)

37





—E-l—

APPENDIX E.
Legislative and Administrative History of Acts.

I.
The Equal Pay Act.

In enacting the Equal Pay Act, the 88th Congress 
specifically intended that employers might continue to 
classify people as “men” and “women” for compensation 
purposes so long as the classification involved actual 
or good faith differences as the basis for the differences 
in pay and was not a mere subterfuge to pay women 
less.

1. The House.
The House Committee noted that an employer might 

pay male packagers and female packagers differently 
where there were real and not merely nominal differ­
ences as the basis for the different pay. (109 C.R. 
9196, 9209; 2/23/63.) If the male packagers were 
required to lift heavy boxes and the female packagers 
were not, more compensation might be paid to the 
male packagers. Previous cases have so understood 
the Equal Pay Act. Shultz v. Wheaton Glass Co., 
421 F.2d 259 (3d Cir. 1970) cert. den. 398 U.S. 
905; Ammons v. Zia Co., 448 F.2d 116 (10th Cir
1971).

Congress also specifically intended that the employer 
would not be required to classify men and women 
in the same way if to do so would penalize the employer 
by requiring payment of more for work done by one 
class (“women”) than for the same work done by 
the other (“men”).

The House Committee rejected the policy of the 
administration’s bill (109 C.R. 240, 2/21/63), which 
would require that all distinctions (including longev-

39



■E-2—

ity) between men and women be disregarded. It did 
so in two ways: (a) by narrowing the statutory prohi­
bition; (b) by adding exceptions which were not merely 
“defenses” but which were “exempted from the operation 
of the statute”, and consequently not prohibited.

The Committee Report pointed out that it was pro­
hibiting pay differentials based solely on sex and not 
on some correlated factor. “Supplementary Views” ac­
companying the Committee Report also announced the 
rejection of the administration’s broad policy. The dif­
ferences in the two bills were also explained by the 
Committee on the House floor.1

The House Committee Report said in part:
“Section 2 of the bill (H.R. 6060) amends 

section 6 of the Fair Labor Standards Act by 
adding a new subsection thereto. This subsection, 
in effect, declares that wage differentials based 
solely on the sex of the employee are unfair labor 
standard. . . . Three specific exceptions and one 
broad general exception are also listed. It is the 
intent of this committee that any of these excep­
tions shall be exempted from the operation of 
this statute. As it is impossible to list each and 
every exception, the broad general exclusion has 
been also included . . .” (Emphasis added.)

Logically, this broad general exclusion cannot mean 
a factor not correlated with “maleness”/ “femaleness”. 
A pay differential not so correlated would be entirely 
outside the prohibition of the Equal Pay Act in any

1UI think it is important that we have clear legislative history 
on this point. . . . The clear intention was to narrow the whole 
concept. We went from ‘comparable’ to ‘equal’ . . .” (109 C.R. 
9197, 5/21/63.) “The burden would be on the Department of 
Labor to prove the exceptions are not true.” (109 C.R. 9208, 

4 0  5 /23/63). (Emphasis added.)



— E-3-

event. Rather, the Act forbids paying women less than 
men where there are no actual or good faith differences; 
but it excludes from its prohibition pay differentials 
where there is a factor of difference—such as “male 
packagers” lifting heavy boxes, and “female packagers” 
not including that factor.

Thus the exempt pay differential for “any other 
factor other than sex” cannot mean a factor not corre­
lated with sex—because in the example given (“male” 
and “female” packagers), the pay differential is corre­
lated with a classification by sex. It is thus “based 
on” sex in a general sense, but there is nevertheless 
an “other factor other than sex” that is the basis 
for the pay differential. So here the factor is longevity 
and not sex “solely”.

While the “male packagers” example might also be 
covered by one of the other statutory exceptions, Con­
gress specifically intended the fourth exception to be 
a broad additional exclusion.

If, on the other hand, every factor correlated with 
sex (or “based on” sex) were a prohibited pay differen­
tial, then the broad general exclusion would have ab­
solutely no meaning. Exception (iv) of the statute 
would become an “empty set” as no case would fall 
within it. To so interpret the exemption would turn it 
from a “broad general exclusion” into a legal nullity. It 
would be tantamount to a legislative repeal.

The foregoing conclusion is supported by explicit 
legislative history on the House floor. Congressman 
Findley offered an amendment to the bill to add an 
additional exception that would permit differences in 
wages if there were other costs to the employer in 
employing women in the same work class as men,

41



so as not to penalize the employer for so employing 
women. (109 C.R. 9217.)

This amendment was rejected on the ground that 
there was no necessity for an additional exception 
as the matter was already covered by exclusion four. 
The House Committee chairmen and members stated 
they wanted the legislative history to be clear. Thus, 
Congressman Thompson (in charge of the bill) said 
“the language the gentleman [Mr. Findley] would add 
is redundant”; “the protection the gentleman [Mr. Find­
ley] seeks already exists in the bill. I agree with 
the gentleman [Mr. Goodell who wrote the bill before 
the House] that the legislative history should show 
our intention”. Then in direct answer to a direct ques­
tion from Congressman Pucinski, the Chairman stated 
that “any other factor other than sex” covered what 
Congressman Findley was trying to do. (109 C.R. 
9217, 5/23/63.)

Thus the controlling legislative history and the explicit 
language of the House Committee bill (H.R. 6060) 
which became the law, shows that it is certainly not 
the intent of law to require the employer to pay men 
and women nominally the same amount when the actual 
effect would be to require the employer to pay women 
more than men for work of the same class.2 * * * 6

2Both houses considered longevity as a basis for adding
the general exception to the Equal Pay Act. (See H.R. 6060,
quoted in H.R. Rep. No. 309, 88th Cong. First Sess., 7 (1963);
s.1409, quoted in S. Rep. No. 176, 88th Cong. First Sess., 4,
6 (1963). Hearings before the House and Senate in March 
and April of 1963 placed before Congress the higher cost of 
retirement benefits for women than for men, and was a factor 
providing impetus for the addition of the subsection (iv) excep­
tion. Hearings on H.R. 3861 and Related Bills, before the 
Special Sub committee on Labor of the House of Representa­
tives, 88th Cong. 1st Sess. (1963), 103, 184-186 and 241;

— E-4—

42



-E-5-—

The Senate history shows the same specific intent.
The Senate Sub-Committee (which included Senator 

Randolph) held hearings and substituted a bill with 
four exemptions for the Administration’s bill. (S. 109
C.R. 2886, 2/25/63.) Senator Randolph was co-author 
of the Sub-Committee bill (109 C.R. 8915, 5/17/63.) 
The Senate Committee, in turn, struck three of the 
exceptions, leaving only the fourth—any other factor 
other than sex. The intent of the Committee bill was 
that the fourth exception included the other three. 
The Senate Committee Report accompanying the bill 
further noted that in addition to the exceptions that 
the Senate specifically intended to include in the single 
broad exclusion, it also intended to allow additional 
exceptions under that broad category where “an employ­
er will be economically penalized by the elimination 
of a wage differential. . . .” This intent, expressed 
by the Senate Report, was identical to the intent of 
Congressman Findley’s amendment which the House 
likewise stated was included in the fourth exemption.

The Senate passed the Senate Committee bill with 
only the broad fourth exclusion. The House, after adopt­
ing H.R. 6060, struck the language of the Senate 
bill and substituted therefor the language of H.R. 6060. 
When both bills were then returned to the Senate, 
Senator Dirksen made the point that he had spoken 
with those who would be conferees and “there is 
general agreement that the House language is quite 
preferable to the language contained in the Senate

2 .  T h e  Senate.

Hearings on S. 882 and S. 910 before the Subcommittee on 
Labor of the Committee on Labor and Welfare, United States 
Senate, 88th Cong., 1st Sess. (1963) 142 and 145.)

43



-E-6—

bill.” (109 C.R. 9762, 5/28/63.) The Senate there­
upon adopted the House bill with the four exemptions 
expressly stated.

The history confirms that Congress did not prohibit 
differentiation upon the basis of sex. Pay differentiation 
upon the basis of sex is prohibited if, but only if, there 
is no other factor other than sex that is the basis 
for the pay differential. The burden is on the plaintiff 
to show there is no other factor; and here plaintiffs 
have conceded there is another factor—longevity.

II.
Title VII of Civil Rights Act.

The same 88 th Congress which adopted the Equal 
Pay Act also enacted the Civil Rights Act. The original 
legislative proposal came from the Justice Department.

1. House Action. When Title VII was debated, 
Congressman Smith (Va.) proposed to add the word 
“sex” to various sections of the title (110 C.R. 2577 
2 /8 /64). After the amendment was offered, only one 
serious argument was presented in its favor, first by 
Congresswoman Griffith and then by others. (110 C.R. 
2578-80, 2 /8 /64). The argument was not that dis­
crimination on account of sex should be legislatively 
treated in the same way as discrimination on account 
of race or color. The argument was rather that the 
addition of “sex” was necessary to ensure “color blind” 
application of Title VII among women in the labor 
market. The absence of the amendment, it was urged, 
could have a practical effect of favoring women of 
one race, color or religion ahead of women of another 
race, color or religion, in the labor market (110 C.R. 
2579, 2582, 2583, 2584, 2 /8 /64).

44



— E-7—

The opposition to the amendment was likewise based 
on “the experience which the Congress had with respect 
to the equal pay legislation” and other experience which 
dictated that legislatively, discrimination on account 
of sex should not be treated in the same way as 
discrimination on account of race or color. (110 C.R. 
2581, 2577-8, 2582).

After the amendment passed on Saturday, Congress­
man Goodell proposed on Monday adding “sex” as 
a bona fide occupational qualification. (110 C.R. 2804, 
2/10/64.) The Goodell amendment was accepted with­
out question (110 C.R. 2804) even though the House 
had rejected an amendment to make “race or color” 
a bona fide occupational qualification. (110 C.R. 2550, 
2 /8/64.)

Thus, the House did not intend to prohibit all classi­
fications of employees as “male”/ “female” (e.g., women 
nurses to care for women. [110 C.R. 2718, 2 /10 / 
64].)

2. Senate Action. When the House bill (H.R. 7152) 
reached the Senate, extensive debate centered on wheth­
er the bill should be referred to the Senate Committee 
already conducting hearings on the Justice Department 
bill (110 C.R. 3715, 2 /26/64). Both Senators Dirksen 
and Morse favored such referral. One of the major 
concerns was to establish clear legislative history. (110 
C.R. 2884, 3715, 6445-6451).

Extensive debates focused on questions and objec­
tions to the House bill, even before the bill was made 
the pending business. Senator Dirksen introduced a 
memorandum of objections regarding matters as to 
which clear legislative intent was desirable. (110 C.R. 
3715, 3719, 4754, 6417, 6450, 6455).

45



— E -8 —

The Senate determined to consider the bill on the 
floor instead of referring to a regular committee (110 
C.R. 3719, 4754, 6417, 6455). Four major results 
followed.

First, Senator Flumphrey (floor manager of the entire 
House bill), Senator Dirksen, and others, formed an 
ad hoc committee to consider the views of all Senators 
and prepare a substitute bill. The Dirksen-Humphrey, 
et al., substitute bill was later introduced. It was first 
introduced as Amendment No. 656, and later as 
Amendment No. 1052. (110 C.R. 12706-7, 12807, 
12817, 12831, 12817, 11926, 11935).

Second, Senators Clark and Case in charge of Title 
VII of the House bill prepared and introduced inter­
pretive memoranda declaring the intent of that Title. 
(110 C.R. 7203-59). Additionally, analyses were pre­
pared under the direction of Senator Humphrey et 
al., distributed to all Senators, and printed in the 
Record (110 C.R. 7474, 9105, 14464).

One of Senator Dirksen’s objections and Senator 
Clark’s explanation of the intent of the House bill 
dealt directly with the instant case.

“Objection: The sex antidiscrimination provi­
sions of the bill duplicate the coverage of the 
Equal Pay Act of 1963. But more than this, 
they extend far beyond the scope and coverage 
of the Equal Pay Act. They do not include the 
limitations in that act with respect to equal work 
on jobs requiring equal skills in the same establish­
ments, and thus, cut across different jobs.

“Answer: The Equal Pay Act is a part of
the wage hour law, with different coverage and 
with numerous exemptions unlike title VII. Fur-46



-B-9—

thermore, under title VII, jobs can no longer 
be classified as to sex, except where there is 
a rational basis for discrimination, on the ground 
of bona fide occupational qualification. The stand­
ards in the Equal Pay Act for determining dis­
crimination as to wages, of course, are applicable 
to the comparable situation under title VII.” (110 
C.R. 7217) (Emphasis added).

Thus Congress did not intend to outlaw rational 
differentiation, although the District Court herein held 
to the contrary.

Third, just before Senators Dirksen and Humphrey 
introduced their substitute No. 1052, Senator Dirksen 
yielded the floor to Senator Bennett who introduced 
his amendment, (No. 1051) regarding the Equal Pay 
Act.

Procedurally, the Bennett amendment (No. 1051) 
was proposed to the House bill H.R. 7152. Introduc­
ing it before the Dirksen-Humphrey amendment (No. 
1052) permitted both Senators Dirksen and Humphrey 
to expressly accept the Bennett amendment as an 
amendment to their bill (No. 1052) and to explain the 
reason for adding it to their proposal No. 1052. And 
that is precisely what they did. Both Senators Dirksen 
and Humphrey explained that the amendment was 
necessary in order to carry the exemptions of the 
Equal Pay Act into the Title VII. (110 C.R. 13310, 
13647.)

Fourth, as if that were not enough, after the text 
of No. 1052 as amended by the Bennett amendment 
was substituted for the House bill (H.R. 7152) and 
made the bill pending before the Senate, Senator Ran­
dolph (co-author of an equal pay bill) asked Senator 47



-E-10—

Humphrey, manager of the bill on the floor, “a clarify­
ing question” as to the effect of the pending bill on 
pension plans which differentiate between men and 
women.

“Mr. RANDOLPH. Mr. President, I wish to 
ask of the Senator from Minnesota (Mr. Hum­
phrey), who is the effective manager of the pend­
ing bill, a clarifying question on the provisions 
of title VII.

“I have in mind that the social security system, 
in certain respects, treats men and women dif­
ferently. For example, widows’ benefits are paid 
automatically; but a widower qualifies only if he 
is disabled or if he was actually supported by 
his deceased wife. Also, the wife of a retired 
employee entitled to social security receives an 
additional old age benefit; but the husband of 
such an employee does not. These differences in 
treatment as I recall, are of long standing.

“Am I correct, I ask the Senator from Minne­
sota, in assuming that similar differences of treat­
ment in industrial benefits plans, including earlier 
retirement options for women may continue in 
operation under this bill, if it becomes law?

“Mr. HUMPHREY: Yes. That point was made
unmistakably clear earlier today by the adoption 
of the Bennett amendment, so there can be no 
doubt about it.

“Mr. RANDOLPH. I am grateful for the re­
ply.” (110 Cong. Rec. 13663-4, 6/12/74) (Em­
phasis added).

The Senate, and especially Senator Humphrey was 
vitally aware of the need to make a legislative record 
as it did. (110 CR 4858.)48



— E - l l

There can be no question that the intent of the 
Senate was not to prohibit differentiation or classi­
fication by sex for purposes of compensation and benefit 
plans.

3. House Action. When the Dirksen-Humphrey bill 
was passed by the Senate and returned to the House, 
this point was also made clear in the presentation 
to the House.

“The Senate amendment also— . . .
“Second. Provides that compliance with the Fair 

Labor Standards Act as amended satisfies the re­
quirement of the title barring discrimination be­
cause of sex—section 703(b): . . .” (110 C.R. 
15896, 7 /2 /64],

III.
Administrative Authority and Interpretations.

The question of the Courts’ responsibility and the 
legal effect to be given administrative interpretations 
of the statutes was a matter carefully considered by 
the 88th Congress, both in regard to the Equal Pay 
Act, and in regard to Title VII.

Legislative intent is shown by what the Legislature 
rejected as well as by what it adopted. This point 
is important where, as here, the administration in­
troduces a bill which Congress rejects, and the ad­
ministration then asks the courts to give effect to 
the law enacted as if the Administration’s bill had 
been enacted, when in fact Congress rejected it. As far 
as the Administration is concerned, such a practice 
would seem to exceed the Constitutional duty “to take 
care that the laws be faithfully executed.” (Art. II.)

1. Equal Pay Act. In enacting an equal pay bill, 
the controlling House Committee Report, and the de- 49



bates on the House floor show that Congress specifically 
rejected a proposal to give the administration any quasi­
legislative authority. Congress established the Secre­
tary of Labor as a prosecutor, and recognized that 
as such he had inherent authority to state his position. 
But his bulletins could only be used in Court as a 
shield for the defendant, not as a policy-making sword, 
either as to matters of law or as to matters of fact. 
It was entitled to weight only in defendant’s favor.

The administrator could give “guidance” to those 
being regulated, but could not give “guidance” to the 
courts against defendant.

The Supplementary Views to the Committee Report 
stated in part:

“Since this bill now before the House differs 
substantially from either last year’s proposals or 
this year’s administration bill, we feel that these 
changes should be pointed out. The following are 
the major differences between the bill reported 
by the full Education and Labor Committee and 
the earlier administration proposal. Under the com­
mittee bill:

“4. Enforcement must be obtained in the Federal 
Courts and not arbitrarily through an all-power­
ful administrative body.

“11. The Secretary of Labor is not given broad 
regulatory and rule making authority. [‘There 
would be no new regulations’ 109 CR 9203.]
. . .” House Report No. 309, 5/20/63; U.S. 
Code, Cong., and Adm. News pp. 689-90; 109 
C.R. 9209 et seq.

—E-12—

50



-E-13
The debates on the House floor showed the same 

intent:
“With reference to regulations, we have talked 

a great deal about this. It is an oversimplification 
but, generally speaking, we have three different 
types of guidance that can be offered by the 
Administrators to those who are being regulated. 
One of them is legislative regulation. . . .

“That was in the original proposal this year 
and it was in the proposal last year, granting 
legislative regulatory authority. It is out of this 
bill. We also knocked out the right of the Secretary 
of Labor even to issue interpretative regulations.

“I emphasize that interpretative regulations are 
also barred. . . . [italics added]

“. . . The Secretary, in my opinion has the 
inherent authority to write interpretative bulletins. 
All this amounts to is telling the public the Secre­
tary’s interpretation of the law for the guidance 
of those who are to be regulated. Such bulletins 
have no standing in court, but they are there 
as a guidance to the court as to what the view 
of the administrator was. They have no other 
significance, except that if an employer relies on 
this interpretative bulletin, he is protected. He 
is not in violation if he has done something in 
reliance upon those interpretative bulletins . . .” 
(109 C.R. 9208-9209; 5/23/63.) (Emphasis 
added.)

“. . . The Secretary may believe that a viola­
tion exists but the court will make a second inde­
pendent judgment. This is very significant . . . 
(italics added)

51



— E -14—

“MR. THOMPSON of New Jersey. Indeed, we 
are not granting any such authority, but the fact 
is that we are specifically and categorically restrict­
ing it, so that this is a negative action rather 
than a positive one.” (109 C.R. 9198; 5/23/63.)

“Eighth, It is not intended that the Secretary 
of Labor or the courts will substitute their judg­
ment for the judgment of the employer and his 
experts who have established and applied a bona 
fide job rating system.” (109 C.R. 9209; 5 /23 / 
63.)

2. Title VII. The House Committee adopted the 
Justice Department civil rights bill with a minimum 
of debate. However, the House Committee proposed 
a number of clarifying amendments on the House floor. 
One of these was to insert the word “procedural” 
regulations to make clear that the EEOC had no au­
thority as to interpreting substantive law. (110 C.R. 
2575.) The amendment was added “to make more 
definite the limitation on his powers”. A second was 
to insert the requirement that there must be “reason­
able cause” before the EEOC brings suit. The purpose 
was “to protect us from an errant and arrogant bureau­
cracy. . . .” (110 C.R. 2563.) Even as to procedural 
regulations, public hearing is required. (110 C.R. 
2573.)

Under the House bill the EEOC was a prosecutor, 
just as is the Secretary under the Equal Pay Act. 
As such the EEOC had inherent authority to announce 
its position, but the intent of Congress was that the 
courts exercise their judgment, independent of the ad­
ministrator.

52



-E-15-

When the bill reached the Senate, the Senate further 
narrowed EEOC authority.

After Title VII was adopted however, the EEOC, for 
the considered purpose of creating an erroneous im­
pression that the EEOC had authority to interpret 
the law, and in the expectation that “busy federal 
judges” would defer to such interpretations, the EEOC 
“adopted ‘guidelines’ (since it has no substantive rule- 
making power)” (Blumrosen, infra at 698). It issues 
such “guidelines” without any public hearing. Further, 
for the purpose of developing decisional “law”, the 
EEOC decided to give the “reasonable cause” pro­
vision the appearance of a quasi-judicial decision 
(Blumrosen, infra at 733). These efforts are extensively 
described by one of the architects of this EEOC policy, 
in Blumrosen, “Administrative Creativity: The First 
Year of the Equal Employment Opportunity Commis­
sion, 38 Geo. Wash. L.Rev. 694 (1970) (Compare 
Constitution Art. II, §3 which provides that the execu­
tive “shall take care that the laws be faithfully exe­
cuted”).

The result of giving effect to such EEOC pronounce­
ments is that any defendant is denied the independent 
impartial decision of the judiciary guaranteed by the 
Constitution and the statutes. While Congress has the 
authority to delegate quasi-legislative and quasi-judicial 
authority to an administrative agency, yet when Con­
gress has not exercised that authority, it is a depriva­
tion of defendant’s constitutional and statutory rights 
for the courts to treat the agency as if such power 
had been delegated to the agency. A defendant is 
entitled to an impartial, independent, de novo decision 
of the Courts.

53



— E -16—

IV.
1972 Congressional Action.

In 1972 Congress considered and rejected proposals 
to broaden Title VII. In rejecting such proposals, it 
expressly reaffirmed major points of its 19.64 action.

In the House, the Committee Report (majority) 
reflects the original broad legislative proposal. However 
the House rejected that proposal, and adopted a bill 
proposed by the minority.

Therefore the House Committee Report represents 
the views Congress rejected.

In the Senate, the Committee made major modifica­
tion in the bill before reporting it to the Senate. Addi­
tional major modifications were made on the Senate 
floor.

The 1972 action is important for three reasons.
First, Congress reaffirmed that only those adverse 

actions that are statutorily defined as unlawful employ­
ment practices constitute unlawful discrimination under 
Title VII. In so doing, Congress rejected proposals 
to redefine discrimination in terms of “systems and 
effects” (House Committee Report, U.S. Code, Cong. 
& Adm. News, 1972, pp. 2143-44, 2150-52).

Second, Congress rejected proposals to give the ad­
ministrative agency any legal authority to develop a 
new definition of discrimination, or to exercise any 
quasi-legislative or quasi judicial authority.

Congress again expressly recognized the predilection 
of the EEOC not to follow the will of Congress, 
and accordingly granted the EEOC an expressly parti­
san position (to bring suit) and rejected proposals 
to give it authority to interpret law or find ultimate 
facts.

54



—E-17-
The reason for this action was summed up by the 

House Committee minority report by members includ­
ing Congressman Erlenborn, whose substitute bill was 
adopted by the House. They said in part:

“We contend that the EEOC has attained an 
image as an advocate of civil rights, and properly 
so. For this very reason, we submit that it cannot 
be an impartial arbiter of the law. An advocate, 
by nature, represents one side of an issue. How 
can he then be asked to apply the law without 
prejudice?” (U.S. Code, Cong. & Adm. News, 
1972, p. 2168.)

The floor debates are likewise replete with expres­
sions of concern over bias3 of the EEOC. (118 C.R. 
731, 594, 699, 701.)

Accordingly Congress determined not to give the 
agency any law-making authority. The Courts are to im­
partially determine the law. Hence undue deference to 
the administration gives the agency authority Congress 
intended it not have and not exercise. It also abdicates 
the courts’ responsibility which Congress intended the 
courts exercise.

Moreover, since the EEOC has been determined 
by Congress to be an advocate and not an impartial 
administrator, deference to such agency deprives defend­
ants of an impartial determination required by the 
14th Amendment.

The Congressional decision not to expand the defini­
tion of discrimination and to limit the Court’s jurisdic-

3For example, Senator Saxbe said in part, “However, too 
often we would find—and I speak as a former attorney general 
who handled the legal aspects of this matter—that in their 
zealousness to try to protect the civil rights of some people, 
they were also eager to violate the civil rights of others.” 
(118 C.R. 731; 1/21/72). 55



—E-18—
tion to the statutory definition of unlawful action is 
also clear. The original legislative proposal was rejected 
and the final result of the Congressional action is 
clearly reflected in the Conference report. It states:

“1. The Senate amendment required a finding 
that the respondent engaged in an unlawful em­
ployment practice and the House bill required 
a finding that respondent ‘intentionally’ engaged 
in such unlawful employment practice.

“4. The House bill restated the provisions of 
existing law prohibiting court ordered remedies 
based on any adverse action except unlawful em­
ployment practices prohibited under Title VII.

“The Senate receded with an amendment that 
provides the following:

“1. A finding that the respondent has inten­
tionally engaged or is intentionally engaging in 
an unlawful employment practice, as the language 
of the current law reads.

“4. The provisions of existing law prohibiting 
court ordered remedies based on any adverse ac­
tion except unlawful employment practices under 
Title VII are retained.” (Conference Report, U.S. 
Cong. & Adm. News (1972) v. 2, p. 2183.)

56



-E-19-

This action by the Congress in 1972 explicitly 
reaffirmed the action in 1964.

In 1964, the original legislative proposal permitted 
the courts to apply remedies unless the action of the 
employer had been “for cause.” This implied a very 
broad authority in the Courts; and that the burden 
was on the employer to show that the “failure to 
hire” etc. was for cause.

The House Committee changed the language on the 
House floor to make clear that actions by the employer 
“for any reason other” than the prohibited five reasons 
were not unlawful and it is outside the jurisdiction 
of the court to order remedies unless the employer’s 
was for a prohibited reason. (110 C.R. 2566, 2/8 /64.)

When the bill reached the Senate, the Senate added 
the word “intentional” as a clarifying change. (110 
C.R. 12723-4.) Again, as in the House, the view 
of- the proponents of the bill was that discrimination 
was action for a reason and that unlawful discrimination 
was action for one of the five reasons stated by the 
statute.4

Accordingly the word “intentional” clarified that 
meaning; but also precluded judicial expansion of the 
definition.

By reaffirming those jurisdictional limitations, Con­
gress reaffirmed the statutory limits in 1972.

4The proponents of the legislation repeatedly pointed out that 
the word “discrimination” (in an unlawful sense) had a settled 
legal meaning, as it was used in F.E.P.C. statutes in about 
half the States, as well as in the National Labor Relations Act, 
the Interstate Commerce Act, and the Federal Aviation Act. 
See, e.g. 110 Cong. Rec. 6549, 7218, 5803-4, 5437, 7477.

57



-E-20-

V.
Legislative Intent vs. Interpretive Bulletin 

in Employer Costs.
The Legislative history flatly contradicts the interpre­

tive bulletin relied on by the Court of Appeals on 
rehearing (D-3).

For example, the Senate report recognized a d d itio n a l  

exceptions for wage differentials based on other costs. 
It said:

“It is the intention of the committee that where 
it can be shown that on the basis of all of the 
elements of the employment costs of both men 
and women, an employer will be economically 
penalized by the elimination of a wage differ­
ential, the Secretary can permit an exception s im i­
la r  to  th o se  h e  ca n  p e r m it fo r  a  b o n a  f id e  se n io r ity  
sy s te m  o r  o th er  ex c ep tio n  m e n tio n e d  a b o v e .” (109 
C.R.8915.)

The agency’s interpretation says exceptions on a 
cost basis would be “contrary to law” because it is 
unlawful to differentiate upon the basis of sex. Isn’t 
the Memorandum therefore u ltra  v ir e s? It says:

“To group employees solely on the basis of 
sex for purposes of comparison of costs necessarily 
rests on the assumption that the sex factor alone 
may justify the wage differential—an assumption 
plainly contrary to the terms and purpose of the 
Equal Pay Act.”

Obviously the latter bulletin is not a faithful, or 
logical, interpretation of a statute which says:

58



—E-21

“It shall not be an unlawful employment practice 
. . . for an employer to differentiate upon the 
basis of sex in determining the amount of the 
wages or compensation paid or to be paid to 
employees of such employer. . .

59





IN THE

Supreme Court of the United Suites
October Term, 1976 

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

Petitioners,
vs.

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

Brief in Opposition to Petition for Writ of Certiorari 
to the United States Court of Appeals for the Ninth 
Circuit.

KATHERINE STOLL BURNS, Esq., 
ROBERT M. DOHRMANN, Esq., 
HOWARD M. KNEE, Esq.,
SCHWARTZ, STEINSAPIR, DOHRMANN 

& KREPACK,
Two Century Plaza, Suite 1900,
2049 Century Park East,
Los Angeles, Calif. 90067,
(213) 277-4400,

Attorneys for Respondents.





SUBJECT INDEX
Page

Question Presented .................................. ............... . 1

Statement of the Case .................. .............................  2

The Separate Classification of Men and Women 
Under Water and Power’s Plan Discriminates 
Against Women Both on Its Face and in Its Im­
pact ................. ............. ...................................... 4

A. Water and Power’s Plan Discriminated
Against Women on Its Face ......... ...............  4

B. Water and Power’s Pension Plan Discrim­
inated Against Women in Its Impact .......... 9

The Interpretation of the Bennett Amendment in 
Gilbert Does Not Undermine the Judgment in 
Manhart .....       12

Conclusion ............................................................... 14

A. The Court of Appeals Decision Is Not in
Conflict With Applicable Decisions of the 
Supreme Court .......................................   15

B. The Court of Appeals Has Not Departed
From the Accepted Course of Judicial 
Proceedings as to Merit the Exercise of the 
Supreme Court’s Supervision ......................... 16

63



TABLE OF AUTHORITIES CITED

Cases Page
Bartmess v. Drewrys, U.S.A., Inc., 444 F.2d 1186 

(7th Cir. 1971) ....................................................  14

Califano v. Goldfarb, ........, U.S........... , 97 S.Ct.
1021 (1977) ....................................... 5, 7, 8, 11, 16

Craig v. Boren, .......  U.S........... , 97 S.Ct. 451
(1976) .............................................................5, 9, 16

Frontiero v. Richardson, 411 U.S. 677 (1973) .. 
...............................................................5, 7, 9, 11, 16

General Elec. Co. v. Gilbert, .......  U.S..........., 97
S.Ct. 401 (1976) ................................... 4, 5, 8, 9, 10
..... ........... ................................ 11, 12, 13, 14, 15, 16

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .... 5

Henderson v. Oregon, 405 F.Supp. 1271, 1277, 
appeal docketed, No.............. , 9th Cir. 1976 ..10, 11

Jefferson v. Hackney, 406 U.S. 535 (1972) ............ 5

Magnum Co. v. Coty, 262 U.S. 159 (1923) ............ 14

Phillips v. Martin-Marietta Corp., 400 U.S. 542
(1971) ......... ......................... ............ ............ 11, 16

Red Lion Broadcasting Co., Inc. v. F.C.C., 395 
U.S. 367.(1969) ....................................................  14

Reed v. Reed, 404 U.S. 71 (1971) .................. 5, 9, 16

Rosen v. Public Service Gas and Elec. Co., 477 F.
2d 90 (3rd Cir., 1973) .......................................... 14

Stanley v. Illinois, 405 U.S. 645 (1972) .............. 7, 15

ii.

64



Regulations Page
29 Code of Federal Regulations, Sec. 1604.9(e) .... 3

29 Code of Federal Regulations, Sec. 1604.9(f) .... 3

Rules
Rules of the Supreme Court, Rule 19 ......................  14

Statutes
California Constitution, Art. I, Sec. 1 ......................  3

California Constitution, Art. I, Sec. 21 ....................  3

California Government Code, Sec. 7500 .........  3, 17

Civil Rights Act of 1964, Sec. 703(h) ....................  12

Los Angeles City Charter, Sec. 220.1 ....................... 12

United States Code, Title 29, Sec. 206(d) ..........12, 13

United States Code, Title 42, Sec. 1983 ..............  3

United States Code, Title 42, Sec. 2000-2(a)(l) .... 3

United States Code, Title 42, Sec. 2000-2(a)(2) .... 3

United States Code, Title 42, Sec. 2000e-2 ............  2

United States Code, Title 42, Sec. 2000e-2(h) ........ 12

United States Constitution, Fourteenth Amendment
................................................................................. .3, 5

Textbook
Legislative History of the Equal Employment Op­

portunity Act of 1972, United States Senate (U.S. 
Government Printing Office, Washington, D.C.,
1972), p. 1844 ......................................................  14

iii.

65





IN THE

Supreme Court of the United States
October Term, 1976 

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

Petitioners,
vs.

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

Brief in Opposition to Petition for Writ of Certiorari 
to the United States Court of Appeals for the Ninth 
Circuit.

Question Presented.
The question presented in this case is as follows; 

Whether a retirement plan which required women em­
ployees to contribute from their wages 15 percent more 
than similarly situated male employees, because of the 
purported longer average life expectancy of women 67



— 2 —

as a class, thereby violated the Civil Rights Act of 
1964, Title VII, as amended by the Equal Employment 
Opportunity Act of 1972, 42 U.S.C. §2000e-2 (“Title 
VH”).1

Statement of the Case.
This is a class suit by female employees of the 

Los Angeles Department of Water and Power (“Water 
and Power”) who are participating, or who have partici­
pated, in the Water and Power Employees’ Retirement, 
Disability and Death Benefit Insurance Plan (“Plan” 
or ‘Tension Plan”). Plaintiffs brought suit on September 
26, 1973 against Water and Power, members of the 
Board of Water and Power Commissioners (“Water 
and Power Commissioners”) and members of the Board 
of Administration of Water and Power’s Plan (“Plan 
Administrators”). Plaintiffs sued Water and Power 
Commissioners and Plan Administrators in their official 
capacities.

Water and Power’s Plan required women to contrib­
ute from their wages 15 percent more to the Plan 
than men to receive the same benefits as men. This 
15 percent differential was based on sex-segregated 
tables which purported to show that as a class women 
outlive men. Plaintiffs sought an injunction ordering 
defendants to equalize male and female contribution 
rates under the Plan and to grant class members restitu­
tion of money they were illegally forced to contribute 
to the Plan in excess of contributions made by their 
male counterparts.

’Plaintiffs do not agree with the Questions Presented as 
set forth in defendants’ Petition for Writ of Certiorari. Whether 
Water and Power’s practice violated the Equal Pay Act is 
not at issue in this case. See infra at page 13.

68



■3—

The District Court permanently enjoined defendants 
under Title VII from requiring female Water and Power 
employees to make larger contributions to the Plan 
than their male counterparts.2 The Court further award­
ed class members refunds of illegally required contribu­
tions made on and after April 5, 1972.3 California 
Government Code §7500 made it unlawful after Janu­
ary 1, 1975 for Water and Power to operate its Plan 
with unequal male and female employee contributions. 
Accordingly, Water and Power equalized contribution 
rates effective January 1.

The District Court’s decision in favor of plaintiffs 
was affirmed by the Ninth Circuit Court of Appeals 
on November 23, 1976 (amended December 23, 1976) 
and a rehearing was denied on April 18, 1977.4 Defend­
ants filed a Petition for Writ of Certiorari on June 
29,1977.

2Title VII prohibits “ [discrimination] against any individual 
with respect to his compensation, terms, conditions, or privileges 
of employment because of such individual’s . . . sex. . . .” 
It also proscribed the segregation or classification of employees 
“in any way which would deprive . . . any individual of 
employment opportunities or otherwise adversely affect his status 
as an employee, because of such individual’s . . . sex. . . .” 42 
U.S.C. §2000-2(a)(l),(2).

3On April 5, 1972, the Equal Employment Opportunity Com­
mission amended its regulations to prohibit contribution rate 
differentials based on sex in employee benefit plans like the 
Plan at bench. The new regulations provide that “it shall not 
be a defense under Title VII to a charge of sex discrimination 
in benefits that the cost of such benefits is greater with respect 
to one sex than the other,” 29 C.F.R. §1604.9(e), and “it 
shall be an unlawful employment practice for an employer 
to have a pension or retirement plan . . . which differentiates 
in benefits on the basis of sex.” 29 C.F.R. § 1604.9(f).

4Plaintiffs also brought suit under the Fourteenth Amendment 
to the United States Constitution, 42 U.S.C. §1983 and Article 
I, § § 1 and 21 of the Constitution of the State of California 
[ §21 is now embodied in §7 (d) ]. Plaintiffs’ cause of action 
under the Fourteenth Amendment is still alive. Although the 
District Court dismissed plaintiffs’ other causes of action, the 
Court of Appeals declined jurisdiction of these matters on the 
ground that the District Court’s order of dismissal was not 
final.



-4—

The Separate Classification of Men and Women Under 
Water and Power’s Plan Discriminates Against 
Women Both on Its Face and in Its Impact.

The Court in General Elec. Co. v. Gilbert, .... U.S. 
—-, 97 S.Ct. 401 (1976), set forth two tests for deter­
mining whether an employee benefit plan discriminates 
on the basis of sex in violation of Title VII:

(1) Is the plan discriminatory on its face; and, 
if not,

(2) Is the plan discriminatory in its impact?
Water and Power’s Plan failed both these tests: It

discriminated against women on its face and it discrimi­
nated against women in its impact.

A. Water and Power’s Plan Discriminated Against Women on 
Its Face.

The classification tables used by Water and Power 
to determine employee contributions to its Pension Plan 
were based wholly on sex. Every man was treated 
like every other man and differently from every woman. 
Other more relevant factors affecting longevity of life, 
such as smoking and drinking habits, normality of 
weight, prior medical history, and family longevity his­
tory, were not used in determining contribution rates. 
The opinion of the Court of Appeals was narrowly 
circumscribed to this set of facts:

“We do not pass judgment on the legality of 
a plan which determines contribution rates based 
on a significant number of actuarially determined 
characteristics, one of which is sex. Our holding 
is limited to the proposition that when sex is 
singled out as the only, or as a predominant, 
factor, the employee is being treated in the manner 
which Title VII forbids.” 553 F.2d at 591.

70



-5—
The Court in Gilbert suggested, because of the simi­

larities between the language used by Congress in Title 
VII and some of the decisions construing the equal 
protection clause of the Fourteenth Amendment, “that 
the latter are a useful starting point in interpreting 
the former.” .... U.S. at ...., 97 S.Ct. at 407. We 
will begin our analysis here.

Where legislative classifications are based on sex, 
the Court has adopted an intermediate standard of 
scrutiny requiring more than just a rational connection 
between the classification and the statutory objective. 
C f. Jefferson  v. H a ck n ey , 406 U.S. 535 (1972).5 
This standard was recently set forth by the Court
in C ra ig  v. B oren , .... U.S...... , 97 S.Ct. 451 (1976):
“To withstand Constitutional challenge, previous cases 
establish that classifications by gender must serve im p o r ­
ta n t g o ve rn m en ta l o b je c tiv e s  and must be su b s ta n tia lly  
re la te d  to the achievement of those objectives.” .... 
U.S. at ...., 97 S.Ct. at 457. (Emphasis added.) On 
this basis, the Court held that the interest of the 
State of Oklahoma in traffic safety did not justify 
a statutory scheme prohibiting the sale of “non-intoxi­
cating” 3.2 percent beer to males under the age of 
21 but permitting it to females over the age of 18.
See C a lifa n o  v. G o ld fa rb , .... U.S...... , 97 S.Ct. 1021
(1977); F ro n tiero  v. R ich a rd so n , 411 U.S. 677
(1973); and R e e d  v. R e ed , 404 U.S. 71 (1971),

The legislative purpose underlying Water and Power’s 
Plan is twofold: (1) To provide retirement income

5This higher standard is of special importance in Title VII 
cases where the purpose of the statute is to require employers 
to treat each employee as an individual, so that the employee’s 
membership in a racial, ethnic, religious, or sexual group is 
irrelevant to employment decisions. See Griggs v. Duke Power 
Co., 401 U.S. 424 (1971).

71



— 6 —

to Plan participants; and (2) To provide an incentive 
for qualified job applicants to choose employment with, 
and remain at, Water and Power. The use of sex- 
segregated classification tables by Water and Power 
to determine contribution rates bore no “fair and sub­
stantial relation” to these objectives.

Although Water and Power’s Plan provides equal 
benefits to male and female retirees, it charged its 
female employees 15 percent more for these benefits 
than its male employees. Water and Power has at­
tempted to justify this contribution rate differential 
on the ground that it was necessary to the fiscal integrity 
of the Plan.

While Water and Power’s justification may appear 
reasonable at first, on closer examination, its weaknesses 
become apparent. Thus, the Court of Appeals found 
that:

“Even if it could be said that the relevant business 
function here involved is that of providing em­
ployees with a stable and secure pension program 
there is no showing that sexual discrimination 
is necessary to protect the essence of that function. 
Actuarial distinctions arguably enhance the ability 
of the employer and the pension administrators 
to predict costs and benefits more accurately, but 
it cannot be said that providing a financially sound 
pension plan requires an actuarial classification 
based wholly on sex.” 553 F.2d at 587.

The Court went on to find that “ [t] his is especially 
true when distinctions based on many other longevity 
factors (e.g., smoking and drinking habits, normality 
of weight, prior medical history, family longevity his­

72



-7—

tory) are not used in determining contribution levels.” 
553 F.2d at 587.

Water and Power’s decision to use gender based 
classification tables to determine contribution rate levels 
to its Plan was based on only one criterion: Adminis­
trative convenience. Although this objective may have 
some importance, “the Constitution recognizes higher 
values than speed and efficiency.” Stanley v. Illinois, 
405 U.S. 645, 656 (1972). See Frontiero v. Richard­
son, supra, and Califano v. Goldfarb, supra.®

The second purpose of Water and Power’s Plan 
is to provide an incentive for qualified job applicants 
to choose employment with, and remain at, Water 
and Power. Thus, the Plan does not have its first 
practical effect when a participant becomes eligible 
to retire, but it begins to operate when he or she 
first accepts employment with Water and Power. The 
possibility that qualified male job applicants were en­
couraged to accept employment with, or dissuaded from 
leaving, Water and Power because of the differential 
treatment afforded them by the Pension Plan, at the 
very least, is speculative and remote.

Water and Power’s claim that the use of non-gender 
based classification tables will result in male participants 
subsidizing female participants also is without merit. 
Because the death of each Plan participant occurs 
at a unique point in time, one participant is constantly 
subsidizing another participant. This is the nature of

eWater and Power abandoned its use of sex-segregated classifi­
cation tables on December 23, 1974, shortly before the District 
Court’s decision in this case. The proof is in the pudding. 
There is nothing in the record to indicate that the financial 
stability of Water and Power’s Plan is being threatened, and 
from all outward appearances, the Plan seems to be running 
well.

73



— 8—

a group plan. The subsidization factor, however, is 
demonstrable in group actuarial terms only, and the 
difference in treatment of the individual male under 
sex-segregated tables and non-sex-segregated tables is 
practically immeasurable.

Water and Power’s Plan differs significantly from 
the disability plan considered by the Court in Gilbert. 
Unlike Water and Power’s Plan, the plan in Gilbert 
was not discriminatory on its face, but merely excluded 
from its coverage disabilities associated with pregnancy 
which is “an objectively identifiable physical condition
with unique characteristics.” ........ U.S. at ........, 97
S.Ct. at 407. Thus, the Court emphasized that:

“ ‘The lack of identity between the excluded dis­
ability and gender as such under this insurance 
program becomes clear upon the most cursory 
analysis. The program divides potential recipients 
into two groups—pregnant women and non-preg­
nant persons. While the first group is exclusively 
female, the second includes members of both 
sexes.’ [Geduldig v. Aiello,) 417 U.S. at 496- 
497, n. 20.” ........ U.S. at ........, 97 S.Ct. at 407.

Water and Power’s Plan also divides potential recip­
ients into two groups—men and women. This classi­
fication, however, is solely gender based. The first 
group is exclusively male and the second group is 
exclusively female. This is a far cry from the disability 
plan in Gilbert and it is just the kind of gender 
based classification that the Court struck down as 
unconstitutional in Califano v. Goldfarb, supra (invali­
dating social security statutes requiring a widower to 
have been dependent on his wife for at least one- 
half of his support in order to receive survivors bene­

74



— 9—

fits, but allowing a widow to receive such benefits 
without regard to whether she may have been dependent 
on her husband for any part of her support); C ra ig  
v. B oren , su pra; F ro n tie ro  v . R ich a rd so n , su p ra  (in­
validating federal statutes requiring a servicewoman’s 
husband to be dependent on her for more than one- 
half of his support before she could receive certain 
benefits for him as a dependent, but allowing a service­
man to claim his wife as a dependent for such benefits 
without regard to whether she was dependent on him 
for any part of her support); and R e e d  v. R e e d ,  
su p ra  (invalidating an Idaho statute providing that, 
when two individuals are otherwise equally entitled 
to appointment as administrator of an estate, the male 
applicant must be preferred to the female applicant). 
These cases cannot be distinguished from the case 
at bench, are controlling, and preclude any need for 
review.

B. Water and Power’s Pension Plan Discriminated Against 
Women in Its Impact.

The Court in G ilb e r t recognized that in Title VII 
actions, unlike in actions based on the equal protection 
clause, “our cases recognize that a prima facie violation 
of Title VII can be established in some circumstances 
upon proof that the e ffe c t of an otherwise facially 
neutral plan or classification is to discriminate against
members of one class or another.” .......  U.S. at ........,
97 S.Ct. at 408. (Emphasis in original.) On 
this basis, the Court concluded that General Electric’s 
plan was merely u n derin c lu sive , that is, it did not 
cover all disabilities in the universe of disabilities, and 
did not impact more heavily on women than men:

75



— 10—

“As there is no proof that the package is in 
fact worth more to men than to women, it is 
impossible to find any gender-based discriminatory 
effect in this scheme simply because women dis­
abled as a result of pregnancy do not receive 
benefits; that is to say, gender-based discrimination 
does not result simply because an employer’s dis­
ability benefit plan is less than all inclusive [foot­
note omitted]. For all that appears, pregnancy- 
related disabilities constitute an additional risk, 
unique to women, and the failure to compensate 
them for this risk does not destroy the presumed 
parity of the benefits, accruing to men and women 
alike, which results from the facially even handed
inclusion of risks.” ........ U.S............, 97 S.Ct.
at 409-410. (Emphasis in original.)

Under Water and Power’s Plan, each man and woman 
did not receive equal benefits measured in terms of 
per dollar contributions. Because women as a class 
are purported to live longer than men, all women 
were required to contribute 15 percent more to the 
Plan that their male counterparts. As the Court of 
Appeals pointed out, “ [n]ot all women live longer 
than men, yet each individual woman is required to 
contribute more, not because she as an individual will 
live longer, but because the members of her sexual 
group, on the average, live longer.” 553 F.2d at 585. 
In fact, although women as a class live longer than 
men, “the great majority of men and women— 84 per­
cent—share common death ages.” Henderson v. Oregon.
405 F.Supp. 1271, 1277, appeal docketed. No.............. ,
9th Cir. 1976. Thus, only about one women out of 
six outlives her male counterpart. The remaining five 
out of six women will die having contributed more

76



— 1 1 —

to Water and Power’s Plan than their male counterparts, 
but having received the same benefits.

Another result of Water and Power’s aggregate ap­
proach is that short-lived women are forced to bear 
the additional costs attributed to long-lived women. 
This result runs contrary to the well established rule 
that a practice which penalizes some women because 
of their sex is prohibited by Title VII regardless of 
whether the practice discriminates against all, or even 
most, women. P h illip s  v. M a rtin -M a rie tta  C o rp ., 400 
U.S. 542 (1971 ).7

Water and Power’s Plan also can be distinguished 
from the disability plan in G ilb e r t in terms of risk 
coverage. As stated above, Water and Power’s Plan 
provides participants with monthly checks typically used 
to satisfy short-term daily needs arising during retire­
ment. The magnitude of these needs, and of the risks 
faced by retirees, do not correspond in any meaningful 
way with one sex or the other. See C a lifa n o  v. G o ld fa rb , 
su pra , and F o n tie ro  v. R ich a rd so n , su pra . Nevertheless, 
by providing equal retirement benefits to men at a 
lesser cost than to women, Water and Power gave 
men the opportunity to use this cost differential to 
purchase additional retirement insurance, and thus pro­
vided men with greater protection against the vicissi­
tudes of retired life.

7In Phillips, the employer refused to accept employment 
applications from women with pre-school aged children, although 
it accepted applications from men with pre-school aged chil­
dren. About three-fourths of the total job applicants were female, 
and about three-fourths of the new hirees were female, so 
that there was no evidence of discrimination against women 
as a class. Nevertheless, the Court held that Title VII prohibits 
an employer from maintaining one hiring policy for men and 
another for women. The Court stated that Title VII “requires 
that persons of like qualifications be given employment oppor­
tunities irrespective of sex.” 400 U.S. at 544. 77



- 1 2 -

Water and Power’s Plan differs from General Elec­
tric’s disability plan in another important respect. The 
Plan is not voluntary, but is required under Los Angeles 
City Charter §220.1. Thus, the Court’s analysis in 
footnote 17 of the Gilbert opinion, which hypothesizes 
a situation where the employer discontinues its disability 
insurance coverage and increases wages in an amount 
equal to the cost of the insurance, is inapposite.

The Interpretation of the Bennett Amendment in 
Gilbert Does Not Undermine the Judgment in 
Manhart.

While comparing Equal Employment Opportunity 
Commission (“EEOC”) and Wage and Hour Adminis­
trator guidelines, the Court in Gilbert quoted Senator 
Humphrey as stating that the purpose of the Bennett 
Amendment to the Equal Pay Act (29 U.S.C. §206(d)) 
was to permit differences of treatment in industrial 
benefit plans, including earlier retirement options for 
women. Based on this remark, the Court applied 
an interpretative regulation issued by the Wage and 
Hour Administrator under the Equal Pay Act to under­
mine an EEOC interpretation of Title VII.8

The Court’s deference to the Wage and Hour Ad­
ministrator’s interpretation of Title VII in Gilbert can­
not help Water and Power in the case at bench. The 
fact is that the interpretation of Section 206(d) by

8Section 703(h) of Tide VII provides that: “It shall not 
be an unlawful employment practice under this subchapter for 
any employer to differentiate upon the basis of sex in deter­
mining the amount of the wages or compensation paid or 
to be paid to employees of such employer if differentiation 
is authorized by the provisions of section 206(d) of Title 
29.” 42 U.S.C. §2000e-2(h). Section 206(d), among other 
things, permits discrimination based on “a differential based 
on any other factor other than sex.”78



— 1 3 —

the Wage and Hour Administrator is consistent with 
the interpretation of Title VII by the EEOC. Indeed, 
the Secretary of Labor filed an amicus curiae brief 
in this case before the Court of Appeals asserting 
that Section 206(d) does not protect Water and Power’s 
classification scheme:

“Clearly, the mere fact that the men and women 
are paid the ‘same salary’ (Appellant’s br., p. 
8) does not make their rates ‘equal’ for purposes 
of the Equal Pay Act if, as here, the ‘take-home 
pay’ of the women is less because of their larger 
compulsory contributions. It is well settled that 
payments made to satisfy the wage requirements 
set forth in Section [206] must be ‘unconditional’ 
—i.e., they must be ‘free and clear’ [citation omit­
ted] and the employee must actually have the 
use of the money [footnote omitted].” Brief of 
the Secretary of Labor, United States Department 
of Labor, as amicus curiae, at pages 9-10.

In any event, the Court’s treatment of Senator Hum­
phrey’s remark, and its interpretation of the Bennett 
Amendment, was not essential to the decision in Gilbert,
i.e., that the exclusion of pregnancy disability coverage 
was not in itself discrimination based on sex. The 
remark was not even essential to the Court’s rejection 
of the EEOC guideline. If the Court had considered 
Senator Humphrey’s statement as controlling, its inquiry 
would have begun and ended with his opinion that 
Title VII does not apply to industrial benefit plans.9 
The Court of Appeal on reconsideration also did not

9But this is not the case. When Congress amended Title 
VII in 1972 to extend its protection to state and local govern­
ment employees, the Conference Report on the 1972 Amend- 

(This footnote is continued on next page)



— 14—

change its decision after explicitly adopting the inter­
pretation of the Bennett Amendment by the Court 
in Gilbert.

Conclusion.
“The jurisdiction [of the Supreme Court to review 
cases by way of certiorari] was not conferred 
upon this Court merely to give the defeated party 
in the Circuit Court of Appeals another hearing.” 
Chief Justice Taft in Magnum Co. v. Coty, 262 
U.S. 159, 163 (1923).

Rule 19, Rules of the Supreme Court, sets forth 
some of the more important criteria considered by 
the Court in granting or denying certiorari. Rule 19 
criteria relevant to this case are whether the Court 
of Appeals:

(1) Has decided a federal question in a way 
in conflict with applicable decisions of the Su­
preme Court; or

ments stated that: “In any area where the new law does not 
address itself, or in areas where a specific contrary intention 
is not indicated, it was assumed that the present case law 
developed by the courts would continue to govern the applicability 
and construction of Title VII.” Legislative History of the Equal 
Employment Opportunity Act of 1972, United States Senate 
(U.S. Government Printing office, Washington, D.C., 1972), 
at page 1844. Case law in 1972 included the 7th Circuit 
decision in Bartmess v. Drewrys, U.S.A., Inc., 444 F.2d 1186 
(7th Cir., 1971) and the District Court opinion in Rosen 
v. Public Service Gas and Elec. Co., 477 F.2d 90 (3rd 
Cir., 1973), both holding, contrary to Senator Humphrey’s 
interpretation, that the forced early retirement of women violated 
Title VII. Because Congress “has not just kept its silence” 
by refusing to adopt Senator Humphrey’s opinion on the appli­
cability of Title VII to industrial benefit plans, “but has ratified 
it with positive legislation,” his remark ought to be ignored 
by the Court. Red Lion Broadcasting Co., Inc. v. F.C.C., 
395 U.S. 367, 381-382 (1969).

80



■15

(2) Has so far departed from the accepted and 
usual course of judicial proceedings, or so far 
sanctioned such a departure by a lower court, 
as to call for an exercise of the Supreme Court’s 
power of supervision.

Defendants have not demonstrated that either of these 
criteria are present in the case at bench.

A. The Court of Appeals Decision Is Not in Conflict With 
Applicable Decisions of the Supreme Court.

Based on the above analysis, plaintiffs submit that 
the Court of Appeals decided this case in strict accord 
with the principles set forth by the Court in the Gilbert 
case.

First, Water and Power’s Plan used actuarial tables 
to predict longevity of life which were based on one 
factor and one factor only—the sex of the Plan partici­
pant. Although women as a class may live longer 
than men, Water and Power ignored other more relevant 
longevity factors such as smoking and drinking habits, 
normality of weight, prior medical history, and family 
longevity history. There is no excuse for the adminis­
trative shortcut taken by Water and Power. Although 
this objective may have some importance, “the Constitu­
tion recognizes higher values than speed and efficiency.” 
Stanley v. Illinois, supra.

Moreover, unlike General Electric, Water and Power 
divided potential pensioners into two groups, one ex­
clusively female and the other exclusively male. On 
the basis of this classification, it required women to 
contribute from their wages 15 percent more to the 
Plan than their male counterparts to receive equal 
benefits. This is the very type of discrimination based

81



— 1 6 —

on gender as such which the court struck down in 
C a lifa n o  v. G o ld fa rb , su pra ; C ra ig  v. B o ren , su pra;  
F ro n tie ro  v. R ich a rd so n , su pra; and R e e d  v. R eed;  
su pra . Not only did this classification bear no sub­
stantial relation to the purposes of Water and Power’s 
Plan, but it discriminated against short-lived women 
contrary to the rule set forth in P h illip s  v. M a rtin -  
M a rie tta , su pra .

Water and Power’s Plan also discriminated against 
women in its impact. Unlike G en era l E lec tr ic , Water 
and Power did not offer men and women an identical 
package. All women, regardless of their prior medical 
history and other factors affecting longevity of life, 
were required to contribute more to the Plan than 
men only to receive the same benefits. This practice 
permitted men to apply their greater take home pay 
toward additional retirement insurance and thus pro­
vided men with greater risk protection against problems 
encountered in retired life.

B. The Court of Appeals Has Not Departed From the Accepted 
Course of Judicial Proceedings as to Merit the Exercise 
of the Supreme Court’s Supervision.

The Court of Appeals decided this case on November 
25, 1976 in favor of plaintiffs. The Court’s well- 
reasoned opinion was based on existing case law, admin­
istrative interpretations of the relevant statutes, and 
an extensive analysis of the legislative history underlying 
those statutes.

Two weeks later, on December 7, 1976, the Court 
decided the G ilb e r t case. Armed with this decision, 
defendants requested a rehearing en  ban c. In light 
of the G ilb e r t opinion, the Court of Appeals once 
again examined existing case law, administrative inter-

82



— 17—

pretations and legislative history. Once again, the Court 
of Appeals ruled in favor of plaintiffs.

Defendants have had three bites from the apple, 
including their hearing before the District Court. Now 
they are hungry for more. Plaintiffs submit, along with 
Chief Justice Taft, that the Supreme Court has more 
important matters to consider than to give the defeated 
party in the Court of Appeals another hearing. This 
is especially true in light of the fact that the California 
State Legislature, in Government Code §7500, outlawed 
Water and Power’s use of sex-segregated classification 
tables effective January 1, 1975. Accordingly, plaintiffs 
respectfully request that defendants’ Petition for Writ 
of Certioriari to the Ninth Circuit Court of Appeals 
be denied.

Dated: July 19, 1977.

Respectfully submitted,

Katherine Stoll Burns,
Robert M. Dohrmann,
Howard M. Knee,
Schwartz, Steinsapir, Dohrmann 

& Krepack,
By Robert M. Dohrmann,

A tto r n e y s  fo r  R esp o n d en ts .

83





IN THE

Supreme Court of the United States
October Term, 1976 

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

Petitioners,
vs.

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

PETITIONERS’ REPLY BRIEF.

BURT PINES, City Attorney,
EDWARD C. FARRELL, Chief Assistant City 

Attorney for Water and Power,
J. DAVID HANSON, Deputy City Attorney,
DAVID J. OLIPHANT, Deputy City Attorney,

By DAVID J. OLIPHANT, Deputy City Attorney,
111 North Hope Street, P.O. Box 111,
Los Angeles, Calif. 90051,

Attorneys for Petitioners.
85





SUBJECT INDEX

Since Respondents Concede the Conflict Between 
This Case and General Electric Co. v. Gilbert, 
Petitioner Is Entitled to a Hearing by This Court

I  P a g e

The Principles of General Electric, Dependent as 
They Are on Facts Akin to This Case, May Not 
Be “Distinguished” Without Overruling General 
Electric .....................................................................  5

III
In Failing to Make De Novo Determinations and 

Failing to Follow General Electric, the Lower 
Courts Departed From the Accepted Course of 
Judicial Proceedings, Exceeded Their Jurisdiction, 
and Denied Petitioners Due Process ................  8

IV
The Failure to Differentiate Upon the Basis of 

Other Characteristics Does Not Make Unlawful 
the Differentiation Upon the Basis of Sex Plus 
Age When the Payment Differential Is for Lon­
gevity and Not for Sex Alone ................ ........  II

Conclusion ................................................................... 13

Appendix A. Letter to Cecil W. Marr, Esquire, 
Deputy City Attorney ..............................App. p. 1
Letter to The President The White House, Wash­

ington, D. C. 20500, Dated April 15, 1976 .... 2
Letter to The President, The White House, Wash­

ington, D.C. 20500, Dated April 15, 1976 .. 3
87



TABLE OF AUTHORITIES CITED

Cases Page

General Electric Co. v. Gilbert, .... U.S...... , 50 L.
Ed. 2d 343, 97 S. Ct. 401 (1976) .....................

............................................................ 2, 3, 4, passim

Henderson v. Oregon, 405 F.Supp. 1271 ................. 7

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ...................................................................... 9

Phillips v. Martin-Marietta Corp., 400 U.S. 542
(1971) ...................................................................... 13

Reed v. Reed, 404 U.S. 71 (1971) ...........................  12

Statutes

California Government Code, Sec. 7500 ................... 6

United States Code, Title 42, Sec. 2000e-2...............  2

United States Constitution, Fifth Amendment .......... 8

United States Constitution, Fourteenth Amendment 6

88



IN THE

Supreme Court of the United States
October Term, 1976 

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

Petitioners,
vs.

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

PETITIONERS’ REPLY BRIEF.

89



•2—

I
Since Respondents Concede the Conflict Between This 

Case and General Electric Co. v. Gilbert, Petitioner 
Is Entitled to a Hearing by This Court.

Respondents concede that the opinion of the Court 
below is contrary to that of this Honorable Court 
in General Electric Co. v. Gilbert, .... U.S. , 50 
L. Ed. 2d 343, 97 S. Ct. 401 (1976). (R.B. 12- 
13.)1 However, respondents ask this Court to “over­
rule” sub silentio the plain language of the statute 
(Bennett Amendment) and its own opinion in General 
Electric.

The difficulty with respondents’ position is that the 
Supreme Court has interpreted the Bennett Amendment, 
has done so contrary to the court below in this case, 
and the Bennett Amendment is the controlling statute 
in this case.

Title VII prohibits certain unlawful employment prac­
tices which it carefully defines. The very same section 
states that it is not an unlawful employment practice 
to differentiate upon the basis of sex in payment of 
compensation. (42 U.S.C. §2000e-2.) It says:

“It shall not be an unlawful employment practice 
. . .  to differentiate upon the basis of sex in 
determining the amount of wages or compensation 
paid or to be paid to employees . . .”.

To assume as did the lower courts that there can 
be no differentiation upon the basis of sex contradicts 
the statute. No one can read so much of the statutory 
language and legitimately conclude that Title VII is 
a blanket prohibition against differentiation upon the

^Reference to “R.B. 1-2” etc. are to pages of the Respond­
ents’ Brief in Opposition to Petition for Writ of Certiorari.

90



—3-
basis of sex in payment of compensation. According 
to the statutory language such differentiation is not 
ipso facto an unlawful employment practice.

The above statutory language provides that differ­
entiation upon the basis of sex in determining compensa­
tion is not unlawful discrimination if such differentia­
tion is permitted by the Equal Pay Act.2

The Equal Pay Act in turn says it is not ipso 
facto unlawful to pay different compensation to one 
sex than the compensation paid to the opposite sex. 
Differential compensation is unlawful only if there is 
no other factor other than sex that is the basis for 
the payment differential.

Again, no one can read the language of the Equal 
Pay Act and conclude that it is ipso facto unlawful 
to differentiate upon the basis of sex in the payment 
of compensation.

To reach the opposite conclusion, one would also 
have to reject the statutory language in Title VII: 
“It shall not be an unlawful employment practice to 
differentiate upon the basis of sex in determining the 
amount of wages or compensation paid or to be paid 
to employees . . .  if authorized by [The Equal Pay 
Act].”

Respondents wrongly argue that whether the “practice vio­
lated the Equal Pay Act is not at issue [sic] in this case” 
(R.B. p. 2 fn. 1). It is a central issue. Since Title VII 
declares it is not an unlawful employment practice to differen­
tiate upon the basis of sex if authorized by the Equal Pay 
Act, the question whether the practice is prohibited or permitted 
by the Equal Pay Act is a central issue. General Electric 
explicitly recognizes that the Bennett Amendment incorporates 
the Equal Pay Act. It also recognizes that a major purpose 
of the Bennett Amendment is to permit differentiation upon 
the basis of sex with regard to retirement and disability plans.

91



This language expressly states that it is the intent 
of Title VII and the Equal Pay Act not to prohibit 
all differentiation in compensation based upon sex. 
The Randolph-Humphrey colloquy quoted in General 
Electric says precisely the same.8 We have before shown 
that the legislative history as a whole compels the 
conclusion reached in General Electric and compels 
a result contrary to the result reached by the lower 
courts herein.

Here, the Department withholds from gross pay a 
pension contribution based upon age, sex, salary and 
length of service. This is not a determination based 
upon sex alone but on longevity. The Department 
makes a “differentiation upon the basis of sex in the 
payment of compensation” but the payment differential 
itself is for the factor of longevity and not for sex 
alone.3 4 Hence, it is not an unlawful employment prac­
tice.

Respondents argue that even though there is a conflict 
(which they concede) between General Electric and the 
instant case that the decision in General Electric should 
now be ignored by this Honorable Court. This argument

3Respondent makes the unfounded argument that Senator 
Humphrey is supposed to have said that Title VII did not 
apply to industrial benefit plans. (R.B. 13.) What was said in 
the Randolph-Humphrey exchange (as this Honorable Court 
recognized), was that differential treatment or differential pay­
ments are permitted if the payment differential is for another 
factor other than sex (such as longevity) and not for sex 
alone.

4There is another reason why the decision herein is contrary 
to General Electric. The Plan also pays disability benefits, 
including benefits for pregnancy. If an employer can exclude 
pregnancy as General Electric holds, it follows that the total 
compensation package for males and females may be considered 
in determining whether the employer is unlawfully discriminating 
against women. The granting of summary judgment precluded 
determination of this issue also.



•5-
is an improper invitation to this Court to deliberately 
commit two fundamental errors.

First, it asks this Honorable Court to disregard the 
statute which it interpreted and applied in General 
Electric, which statute says that differentiation upon the 
basis of sex with regard to compensation is not ipso 
facto an unlawful employment practice.

Second, it urges in effect that this Honorable Court 
act improperly by totally disregarding its own control­
ling opinion without granting a hearing and addressing 
the question forthrightly. It argues in effect that this 
Honorable Court should not only acquiesce in the 
egregious errors below, but compound them. Such argu­
ments require no further refutation than to baldly state 
them.

II
The Principles of General Electric, Dependent as They 

Are on Facts Akin to This Case, May Not Be 
“Distinguished” Without Overruling General Elec­
tric.

The respondents argue in effect that General Electric 
should be limited to its peculiar facts sub silentio. 
In making this argument, they recognize that the prin­
ciples set forth therein are applicable to this case, 
and conflict with the lower courts’ holdings herein.

To limit General Electric to its facts would be tanta­
mount to overruling it. That case interprets the statute; 
it relies for such interpretation on fact situations virtual­
ly identical to the instant case. To refuse to apply 
those principles to the instant case, as the lower courts 
did herein, is tantamount to the lower courts “overrul­
ing” the decision of this Court.

93



6 —

Moreover, when the Supreme Court has relied on 
a Wage and Hour Administrator’s bulletin as recogni­
tion of the fact that differential payment for longevity 
is proper, it is hardly appropriate for the lower court 
to rely on different bulletins to “overrule” the conclusion 
of the Supreme Court.

Furthermore, the facts in General Electric are not 
distinguishable in their basic concept. In General Elec­
tric, as in this case, the total compensation paid to 
women is not less than that paid to men. (R.B. 10, 
General Electric, supra, 50 L. Ed. 2d 343, 356 and 
footnotes 17 and 18.) The Court therein also noted 
that there was no proof that the package offered to 
men was in fact worth more than the package offered 
to women.5 (R.B. 10, General Electric, supra, 50 L. 
Ed. 2d 343, 356.)

‘"’Respondents wrongly state (R.B. 7, fn. 6) that “Water 
and Power abandoned its use of sex-segregated classification 
["sicl tables.” Such have never been abandoned. On January 
1, 1975 petitioners were required by California Government 
Code §7500 to prospectively lower the female contribution rate 
to that of the “equivalent” male. The validity of that statute is 
not before the Court. However, it appears to subject petitioners to 
potential liability to the males in that total compensation to 
males is thereby not the actuarial equivalent of total compensa­
tion to females. Thus, your petitioners are in the “no win” 
situation set forth in General Electric, supra, 50 L. Ed. 2d 
343, 356 fn. 18. Furthermore, petitioners still pay retirement 
options and other retirement benefits under the Plan accord­
ing to sex-differentiated actuarial tables. Respondents imply 
that because of the lowered contribution rate nothing remains 
to be resolved. However, the final judgment herein prohibits 
past as well as prospective differentiation in contribution rates, 
awards respondents substantial refunds of prior contributions, 
including interest and attorneys’ fees, and provides potential 
authority for further refunds under remaining causes of action 
alleged pursuant to the 14th Amendment. On discrimination 
against males we also invite the Court’s attention to the fact 
that the EEOC has said that it has “reasonable cause” to believe 
the Plan discriminates against males. (See EEOC “Decision” 
75-147.)

94



— 7-

Pension benefits are of course funded on a group 
basis. If, as indicated in General Electric, the employees 
purchased their own benefit plan on the open market, 
the women, instead of paying slightly more than the 
men as they do under the Plan, would have to pay 
considerably more for the same pension benefits as 
they receive under the Plan. This is shown by the 
fact that the Department contributes considerably more 
for female benefits than for males. In addition each 
employee has the option on resignation or retirement 
to recover all such employee’s contributions.

The stipulated fact herein is that women as a class 
outlive men as a class. The total benefit package offered 
to females is actuarially equal to or greater than that 
offered to males.

Certainly, there are individual females who will not 
in fact live as long as the average female. So too 
are there males that will not live as long as the average 
male. But the life expectancy of each female is longer 
than each male. Actuarially, the short-lived male has 
a shorter life span than the short-lived female. For 
every woman who does not live as long as the 
group “females” there is a man who will not live 
as long as the group “males” or as long as his female 
“counterpart.”6 The proper comparison between a male

Respondents at R.B. 10 cite Henderson v. Oregon, 405 
F.Supp. 1271, 1275 fn. 5, for the misleading proposition that 
84% of people share “common” death ages. Such conclusion 
was based on an unsubstantiated document, never subjected 
to cross-examination and inapplicable in the first place. The 
graph showed that commencing with retirement, at every age 
substantially more females survived than males. At age 83, 
34,400 males remained and 51,200 females, to be provided 
with pension benefits. The Respondents’ proposition has no 
meaning because it equates death at 65 with death at 100 

(This footnote is continued on next page)
95



— 8—

and his true “counterpart” shows the male will not 
live as long. The argument that some females will 
not live as long as the average female is specious, 
because such females will live longer than the cor­
responding males.

Ill
In Failing to Make De Novo Determinations and Fail­

ing to Follow General Electric, the Lower Courts 
Departed From the Accepted Course of Judicial 
Proceedings, Exceeded Their Jurisdiction, and 
Denied Petitioners Due Process.

We have before pointed out that administrative “bul­
letins” and “guidelines” which the lower courts treated 
as law, were issued without prior notice and public 
hearing. Hence even if they were regulations (which 
they are not) they could not be given effect by the 
courts without violating the Due Process clause of 
the 5th Amendment.

A fortiori, where Congress has intentionally withheld 
quasi-legislative and quasi-judicial authority from both 
the Wage and Hour Administrator and from the EEOC, 
the “guidelines” and “bulletins” of such agencies may 
not be given effect as if they were duly issued regula­
tions without violating Due Process.

More than that, only Congress may create Article 
III courts and define their jurisdiction; and only Con­
gress may delegate quasi-legislative and quasi-judicial 
authority to administrative agencies. Article III courts 
do not have the authority to delegate judicial power

when the real issue is funding benefits payable up to death 
at each age as such deaths occur. What is also significant 
is that your petitioners have not been given the opportunity 
to put on a case for the strength of their position actuarially.

96



9-

to inferior tribunals; it follows a fortiori that such 
courts do not have authority to delegate quasi-legislative 
or quasi-judicial power to administrative agencies.

Hence the lower courts constitutionally may not, 
under the rubric of “deference” or otherwise, in effect 
delegate to the administrative agencies an authority 
other than whatever authority the Congress may have 
delegated to such agencies.

The law of Title VII absolutely requires that the trial 
court afford defendants a de novo determination on 
the question whether they have violated the statute. 
“. . . f C ] ourt actions under Title VII are de novo 
proceedings. . . .” McDonnell Douglas Corp. v. Green, 
411 U.S. 792, 799 (1973). This your petitioners were 
denied by the lower courts’ “delegation/deference” to 
the administrative agencies, an act which not only 
was therefore a denial of due process but was also 
clearly in excess of jurisdiction of the Courts below.

The question whether defendants have “violated” 
a so-called regulation (nee guideline) is totally irrele­
vant since no bulletin or guideline is a regulation.

In General Electric, this Honorable Court plainly 
said that EEOC guidelines are not regulations. Respond­
ents concede the conflict between General Electric and 
the instant case on this point when they say that General 
Electric “undermined” the EEOC’s authority (R.B. 12). 
More properly stated, General Electric (a decision of 
the highest Court constituted by Article III) correctly 
held that the EEOC did not have the authority it 
has pretended to, by having its “guidelines” published 
in the Code of Federal Regulations, and by other acts.

97



■10—

Likewise, the fact that the EEOC issued a reasonable 
cause opinion (in an entirely different case) that a 
practice is unlawful, is of no more moment than a 
police officer’s statement of what he considers “reason­
able cause” to issue a warrant or make an arrest 
is relevant in a subsequent prosecution. Yet, the District 
Court relied on a “police officer’s” statement when 
it cited EEOC Dec. 74-118 (Petition p. B-3).

The majority on rehearing relied on the “amicus” 
brief of the Secretary of Labor as “authority” for 
the proposition that there is no conflict between the 
administrative agencies. The respondents also rely on 
this “authority”.

Under the Freedom of Information Act, however, 
your petitioners have finally obtained confirmation by 
the Justice Department that the conflict exists and 
that legislation is required to reach the result arrived 
at by the lower courts.

The letter to the President states:
“The Labor Department interpretations under 

the Equal Pay Act . . . state that an employer 
is in compliance if it makes equal contributions 
to the retirement plan for similarly situated em­
ployees. EEOC, on the other hand, has taken 
the position . . . that the only way to comply 
with Title YII . . .  is to provide equal periodic 
benefits.” (See Appendix A).

Given the Labor Department’s interpretation, it is 
absolutely untenable to assert that an employer may 
not differentiate on the basis of sex longevity because 
the interpretation above-quoted will necessarily result 
in unequal periodic benefits to males and females.

98



1 1 —

Further, the two administrative interpretations are 
in absolute conflict and can best be resolved by a 
reasonable compromise such as your petitioners’ plan.

If an employer may contribute unequal amounts to 
pay equal periodic benefits, or equal periodic amounts 
to pay to the employees unequal periodic benefits, it 
is sophistry to hold (as the lower courts did) that 
employees may not be required to pay a larger propor­
tion of the larger benefits which they receive in com­
parison to the other employees.

The conflict between the agencies is clear.
We also note that the federal government has failed 

to disclose the actuarial study of the estimated cost 
that this change in the law will bring about. They 
also did not disclose the memoranda of the background 
of the issues in this area. (See Appendix A.) As 
we pointed out in our petition the cost is horrendous. IV

IV
The Failure to Differentiate Upon the Basis of Other 

Characteristics Does Not Make Unlawful the Dif­
ferentiation Upon the Basis of Sex Plus Age When 
the Payment Differential Is for Uongevity and Not 
for Sex Alone.

The majority opinion of the Court of Appeals holds 
that actuarial tables which measure life expectancy 
as related to sex and age, are not sufficient to be 
acceptable under Title VII as a basis for differentiation 
in compensation between the sexes. The opinion infers 
that the failure to include a number of other character­
istics which arguably may also affect longevity, such 
as smoking, drinking and obesity, makes such tables 
unacceptable.

99



— 12—

Such reasoning is its own refutation. If sex plus 
age (i.e. longevity) can not be an “other factor other 
than sex” warranting a payment differential under the 
Bennett Amendment in and of itself, the addition of 
other characteristics will not make it so. The addition 
of other characteristics will not alter the underlying 
basic difference in life expectancy between males and 
females of the same age. It will only add other character­
istics— sex neutral characteristics—on top of “differenti­
ation upon the basis of sex.” (42 U.S.C. §2000e-2.)

Either age plus sex-differentiated actuarial tables are 
permissible under the Bennett Amendment, or they 
are not. Either they constitute invidious discrimination 
or they do not. To hold that they might be acceptable 
if they also incorporate differentiation for smoking, 
drinking, obesity, and the like, is to acknowledge that 
such tables are acceptable.

The mere fact that your petitioners could have in­
corporated other characteristics affecting longevity does 
not mean that they must, nor does it invalidate the 
characteristics used.

This Honorable Court has recognized that women 
have a longer life expectancy than men (Reed v. 
Reed, 404 U.S. 71, 75 (1971)). The parties agreed 
below to that fact. In General Electric, this Court 
recognized the right of an employer to exclude employ­
ment benefits for a single disability, pregnancy, which 
impacted on one sex, females, without being in violation 
of Title VII. The fact that the employer might have 
excluded benefits for other disabilities did not invalidate 
the exclusion of benefits for the single condition, preg­
nancy. Similarly, the mere fact that there are other 
factors which may or may not affect longevity does

100



13

not invalidate the use of age plus sex related to longev­
ity, alone. To hold to the contrary is to suggest that 
the Court in General Electric could permit exclusion 
of benefits for pregnancy under Title VII only if it 
found there was exclusion of benefits for a significant 
number of other disability conditions.

This case was decided on summary judgment. The 
only proven statistics before the Court are longevity 
as related to sex and age. If respondents can show 
that the other factors referred to are reliable, and 
longevity as related to sex is not, then the parties 
should proceed to trial.

Certainly, your petitioners could consider other fac­
tors. However, the question is not whether they may, 
but whether they must, particularly if trial would show 
that the only reliable factors are those proven by the 
Department.6

Conclusion.
Respondents accuse petitioners of having “three bites 

from the apple” and now being “hungry for more.”
The tragedy is that your petitioners have yet to 

see the apple. They seek a de novo determination 
in a court on questions of law and of fact. The matter 
was decided on summary judgment in which the lower 
courts, contrary to their Constitutional duty to inde­
pendently determine the law, de novo, “deferred” en­
tirely to the administrative agencies for decision of 
the case. Not only did the Court of Appeals abdicate

eIt is significant that in Phillips v. Martin-Marietta Corp., 
400 U.S. 542 (1971), the leading case cited by respondents, 
the Supreme Court still remanded the matter for trial requiring 
the employees to prove discrimination and allowing the employer 
to prove its practice lawful.

101



■ 1 4 -

in favor of the administrative agencies, but it did 
so contrary to statute, Congressional history and the 
clear current expression of law of this Honorable Court 
in General Electric.

Respondents seem to suggest that due process has 
a numerical limitation. But due process includes the 
right to a fair hearing de novo which has so far been 
denied your petitioners.

Petitioners seek no more than that. As suggested 
by Judge Kilkenny on rehearing:

“set aside the judgment of the lower court and 
remand for a trial on the issue of whether the distinc­
tions under the plan are mere pretexts designed to 
effect an invidious discrimination against members of 
the female sex.”

We respectfully petition the court to grant Certiorari.
BURT PINES, City Attorney,
EDWARD C. FARRELL, Chief Assistant City 

Attorney for Water and Power,
J. DAVID HANSON, Deputy City Attorney,
DAVID J. OLIPHANT, Deputy City Attorney,

By DAVID J. OLIPHANT, Deputy City Attorney, 
Attorneys for Petitioners.

102



APPENDIX “A”.
Office of the Deputy Attorney General 

Washington, D.C. 20530 
Cecil W. Marr, Esquire 
Deputy City Attorney 
Office of City Attorney 
City Hall East
Los Angeles, California 90012 
Dear Mr. Marr:

You appealed from the denial by Deputy Assistant 
Attorney General James P. Turner, Civil Rights Di­
vision, of your request for access to certain records 
of the Department of Justice.

I am satisfied that the materials you seek are exempt 
from mandatory release pursuant to the provisions of 
5 U. S. C. 552(b) (5). After careful consideration, how­
ever, I have decided to make these materials available 
to you as a matter of my discretion, having obtained 
the concurrence of the White House and having con­
cluded that release will not be detrimental to the inter­
ests of the Department of Justice. One of the records 
being released to you, the report to the President 
from the Equal Employment Opportunity Coordinating 
Council, dated April 14, 1976, refers to certain en­
closures in the closing paragraph. A search of all 
pertinent files has located only one of the mentioned 
enclosures, a preliminary draft of proposed legislation, 
which is being provided to you.

Sincerely,
Peter F. Flaherty 
Deputy Attorney General 
,/s/ By: Quinlan J. Shea 
Quinlan J. Shea, Jr., Director 
Office of Privacy and Information Appeals 

Enclosures



•2—

The Deputy Attorney General 
Washington, D.C. 20530 

April 15, 1976
The President 
The White House 
Washington, D. C. 20500 
Dear Mr. President:

As Chairman of the Equal Employment Opportunity 
Coordinating Council, I believe I owe you an explana­
tion for the absence of one member agency’s signature— 
that of the Equal Employment Opportunity Commission 
—on the attached letter to you from the Council.

This pension study, as you know, represents the 
combined efforts of six agencies, with differing juris­
dictions and consequently differing outlooks on the 
pension issue. Achieving unanimous agreement on a 
common recommendation was no small task. Neverthe­
less, at our meeting on March 30 of this year, the 
Council reached unanimous agreement on the substance 
of its letter, subject to certain redrafting and expansion 
of details thereof and the preparation of a proposed 
draft bill. Agreement on the expanded letter and the 
proposed bill was achieved on or about April 13, 
1976.

On April 14 and 15, however, the Equal Employment 
Opportunity Commission was unwilling to sign the 
letter, for reasons which would have required reopening 
the inter-agency discussions at this late date. As the 
April 15 deadline for this letter already represents 
the entire six months’ time extension which you so 
graciously granted this Council, I chose not to recom­
mence our efforts.

Respectfully,
/ s /  Harold R. Tyler Jr.
Harold R. Tyler, Jr.

Attachment



— 3

The Deputy Attorney General 
Washington, D.C. 20530 

April 14, 1976

The President 
The White House 
Washington, D.C. 20500 
Dear Mr. President:

In response to your request, the Equal Employment 
Opportunity Coordinating Council has been working 
to develop a uniform approach to questions of law 
and policy regarding differentiation in retirement plan 
benefits on the basis of sex. The differentiation results 
from the use of sex-based actuarial tables. That is, 
when an employer makes equal contributions for men 
and women to a retirement benefit plan, female em­
ployees because of their longer average life span, 
receive lower periodic benefits than similarly situated 
men under a single life annuity.

The basic issue is whether employers who sponsor 
retirement benefit plans for their employees are required 
to provide equal periodic benefits to male and female 
employees at retirement. The Labor Department inter­
pretations under the Equal Pay Act and Executive 
Order 11246, as amended, and the regulations of the 
Department of Health, Education, and Welfare under 
Title IX of the Education amendments of 1972 state 
that an employer is in compliance if it makes equal 
contributions to the retirement plan for similarly situ­
ated employees. EEOC, on the other hand, has taken

105



4

the position in its 1972 Guidelines on Discrimination 
in Employment Because of Sex and in court cases 
that the only way to comply with Title VII of the 
Civil Rights Act of 1964, as amended, is to provide 
equal periodic benefits.

All the member agencies of the Coordinating Council 
and HEW (which has been meeting with the Council 
on this issue) are agreed that it is a matter of sound 
public policy that periodic payments made to retired 
employees pursuant to the terms of employee benefit 
plans should not reflect a differentiation based on sex. 
This belief is grounded on the view that employees 
who have received equal pay and status during their 
working years ought to be assured of an equal income 
during retirement.

Because Congress has not made this position com­
pletely clear in existing statutes, the Council is recom­
mending that you ask the Congress to enact legislation 
which would

—Require that all persons retiring on and after 
a date certain, e.g. January 1, 1980, under 
the terms of an employee retirement plan pro­
viding periodic benefits based on the employee’s 
life receive periodic payments which do not 
reflect a differentiation based on sex.

— (EEOC believes that sound policy and the Con­
gressional intent indicated in Title VII and 
ERISA mandate that an equal periodic payment 
requirement should also apply to survivors op­
tions and would want to request of the Office

106



■5
of Management and Budget authorization to 
testify concerning its belief in this regard.)

—Require that if an employee retirement plan 
provides for retirement benefits in the form 
of a lump sum on and after the effective date, 
such lump sums shall be in amounts sufficient 
to purchase life annuities which provide periodic 
payments which do not vary because of the 
sex of the purchaser.

While the legislation is pending, EEOC will continue 
to process charges and implement its present perception 
of the law in court.

The Commission on Civil Rights believes that Title 
VII prohibits the current practice of paying unequal 
periodic benefits to men and women. The Commission 
believes that the current EEOC Guidelines can be 
fully justified by case law. The Commission sees no 
need for legislation. If, however, legislation is proposed, 
the Commission believes that Congress should consider 
mandating sex-neutral practices by the insurance indus­
try, applicable to all forms of insurance.

We have enclosed for your consideration a prelimi­
nary draft of proposed legislation to implement our 
recommendation; a copy of a report prepared for the 
Council by actuaries who estimated the cost of the

107



— 6—

proposed changes, and memoranda by the Solicitor 
of Labor and the Chairman of the EEOC setting 
forth the background of the issues in this area.

Sincerely,

/ s /  Harold R. Tyler, Jr.
Harold R. Tyler, Jr.
Deputy Attorney General 

and
Chairman, Equal Employment 
Opportunity Coordinating 
Council

/ s /  W. J. Usery, Jr.
W. J. Usery, Jr.
Secretary of Labor

/ s /  David Mathews 
David Mathews 
Secretary of Health, Education, 

and Welfare

/ s /  Arthur S. Flemming
Arthur S. Flemming
Chairman, Commission on Civil Rights

/ s /  Robert E. Hampton
Robert E. Hampton
Chairman, Civil Service Commission

108



IN THE

Supreme Court ot the United M s
October Term, 1977 

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

Petitioners,
vs.

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

PETITIONERS’ OPENING BRIEF.

BURT PINES, City Attorney,
EDWARD C. FARRELL, Chief Assistant City 

Attorney for Water and Power,
J. DAVID HANSON, Deputy City Attorney,
DAVID J. OLIPHANT, Deputy City Attorney,

By DAVID J. OLIPHANT, Deputy City Attorney,
111 North Hope Street, P.O. Box 111,
Los Angeles, Calif. 90051,

Attorneys for Petitioners.

109





SUBJECT INDEX

Opinions Below ..........................................................  1

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

Constitutional Provisions, Statutes and Rules In­
volved ...................... ......................................... ..... 2

Questions Presented .....    3

Statement of the Case .............. ............ ................... 3

Summary of Argument .... ........................ ............... . 8

Argument .... ..............................................................  10

I
It Is Not an Unlawful Employment Practice to 

Differentiate Between the Sexes With Respect 
to Deferred Compensation to Be Paid Under
Pension Benefit Plans ...................................... 10
The Statutes ..........     10
Legislative History .............      12

1. The Equal Pay Act ...................  13
2. Title VII ................................................  18
3. 1972 Legislative Action .................    22

Application of the Statutes ....................   23

II
The Lower Courts Abdicated Their Responsi­

bility to Render a De Novo Interpretation of 
the Law and Reached a Result Contrary to 
Statute .................................................................  26

P a g e

111



Legislative Action and Intent ......................... 27
1. Equal Pay Act ........................ ............  27
2. Title VII and 1972 Amendments .... 30
3. Application ........... ................................  32

III
The Decision Below Is in Excess of the Court’s 

Jurisdiction Under Article III and Contrary to 
the 10th, 11th and 14th Amendments to the 
Constitution ........................................................   37

IV
The Decision of the Lower Court Is Contrary to 

General Electric v. Gilbert ...............................  46

Conclusion ............................................................    49

Exhibit A. United States Constitution Article I, 
Sections 1 and 8 (Clauses 9 and 18) ................ A-l

Article II, Section 3 ...........................   A-l

Article III, Sections 1 and 2 ............................... A-l

Tenth Amendment ......  A-3

Eleventh Amendment ............................................A-3

Fourteenth Amendment, Sections 1 and 5 ........A-3

Exhibit B. Fair Labor Standards—29 U.S.C. §206 
..........-............................. ........................................... B-l
42 U.S.C. §2000e-2. Unlawful Employment 

Practices............................................................... B-2

42 U.S.C. §2000e-5 (g) ........................................B-4

ii.

P a g e

112



Exhibit C. Legislative History of Acts ................C-l

I.
The Equal Pay Act ......................................... __..C-1

II.
Title VII of Civil Rights Act .........................C-5

III.
Administrative Interpretations of Law ..............C -l7

IV.
1972 Congressional Action ................................. C-23

V.
Legislative Intent vs. Interpretive Bulletin On

Employer Costs ............................................. ...C-28

Exhibit D. Charter Sections 220.1(1) (a) and
(g) .... -.....................-............. - .............. -............ D-l

iii.

P a g e

113



IV.

TABLE OF AUTHORITIES CITED

Cases Page

Abbott v. City of San Diego, 165 Cal.App.2d 511,
332 P.2d 324 (1958) ................ ............ ............  5

Ammons v. Zia Co., 448 F.2d 116 (10th Cir. 
1971) ................................................. ...................  14

Brown, In re Marriage of, 15 Cal.3d 838, 126 Cal. 
Rptr. 633 (1976) .................................................  5

Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct...... ,
51 L.Ed.2d 270 (1977) .......      6

Corning Class Works v. Brennan, 417 U.S. 188,
41 L.Ed.2d 1, 94 S.Ct. 2223 (1974) ..... 14, 28, 42

Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.
Ed.2d 397 (1976) .........................   6

Dred Scott v. Sanford (1856) 19 How. 393, 15 L.
Ed. 691 .......................................     43

Edelman v. Jordan (1974) 415 U.S. 651 ..............  42

Gallentine v. Fiero, 110 Cal.App. 345, 294 Pac.
59 ..........................................................      24

Garland M. Fitzpatrick v. Frederick Bitzer, 427 
U.S. 445 (1976) ....................................... 37, 42, 43

Geduldig v. Aiello (1974) 417 U.S. 484, 41 L.Ed.
2d 256. 94 S.Ct. 2485 ....................................... 6, 39

General Electric Co. v. Gilbert, 429 U.S. 125, 97
S.Ct. 401, 50 L.Ed.2d 343 (1976) ..... 3, 7, 8, 9, 10
................................................12, 21, 24, 25, 26, 27
.............. .............. 29, 32, 34, 36, 39, 46, 47, 48, 49

Griggs v. Duke Power, 401 U.S. 424. 91 S.Ct. 849,
28 L.Ed.2d 158 (1971) .........................23, 33, 38114



V.

Henderson v. Oregon, 405 F.Supp. 1275 (1975) .... 4

Henry v. City of Los Angeles, 201 Cal,App.2d
299 ............................. ......... ....... ...........................  41

Houghton v. Long Beach, 164 Cal.App.2d 298 
(1958) .....................................................................  41

International Brotherhood of Teamsters v. United
States, et ah, .... U.S......., 52 L.Ed.2d 396, 97
S.Ct......, 45 L.W. 4506 (May 31, 1977) ........ 19, 38

Kahn v. Shevin (1974) 416 U.S. 351, 40 L.Ed.2d 
189, 94 S.Ct. 1734 .............................................. 6, 39

Kober v. Westinghouse Electric Corporation, 480 
F.2d 240 (3rd Cir. 1973) ...................................  41

Lauf v. E. G. Skinner & Co., 303 U.S. 323 (1938) 
.....................................................................   45

LeBlanc v. Southern Bell Tel. & Tel. Corp., 460 
F.2d 1228 (5th Cir. 1972) ............    41

Manning v. General Motors Corp., 466 F.2d 812 
(6th Cir. 1972) ..................        41

Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 
(1803) ..............     42

McCardle, Ex Parte (U.S. 1869) 7 Wall. 506, 19 
L.Ed. 264 ...........................................................44, 46

McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ....23, 28, 30

National League of Cities v. Usery (1976) 426 U.S.
833, 49 L.Ed.2d 245 ...... ..................................  40

Reed v. Reed, 404 U.S. 71, 30 L.Ed.2d 225, 92 
S.Ct. 251 (1971) ................................................... 24

P a g e

115



Rosenfeld v. Southern Pacific Co., 444 F.2d 3219 
(9th Cir.) ......................................... ....................  41

Schlesinger v. Ballard (1975) 419 U.S. 498, 42 
L.Ed.2d 610, 95 S.Ct. 72 .... ............ ...................  39

Schultz v. Wheaton Glass Company, 421 F.2d 259
(3d Cir. 1970) cert, den., 398 U.S. 905 ........
............................................................... ........14, 39, 40

Sheldon v. Sill (U.S. 1850) 8 How. 440, 12 L.Ed. 
1147 .................................................................. 44, 46

Skidmore et al. v. Swift & Co., 343 U.S. 134 
(1944) ...............................................................27, 29

Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373
(1975) ..........................     6

United States v. Stapf, 375 U.S. 118, 84 S.Ct. 
248, 11 L.Ed.2d 195 (1963) ................. ...........  29

Washington v. Davis, 426 U.S. 229, 48 L.Ed.2d 
597, 96 S.Ct. 2040 (1976) ..................................  38

Willingham v. Macon. Telegraph Publishing Co.,
507 F.2d 1084 (5th Cir. 1975) ...................... . 49

Miscellaneous

109 Congressional Record, p. 9195, 5/23/63 ....  14

109 Congressional Record, pp. 9196, 9209, 2 /23 /
63 ..............................................      13

109 Congressional Record, p. 9217, 5/23/63 .... . 17

109 Congressional Record, p. 9762, 5/28/63 ........ 18

110 Congressional Record, pp. 7218, 5803, 5437, 
7477

P a g e

45



vii.

41 Federal Register, pp. 48484-48491 ....................  25

House Bill (H.R. 6060) ...............................16, 17, 21

House Bill (H.R. 7152) .... ........... ...........................  19

House Committee Report, U.S. Code, Cong. & 
Adm. News, 1972, pp. 2143-44, 2150-52 .......... 22

Population Estimates and Projections, Projections 
of the Population of the United States: 1977 to 
2050, U.S. Department of Commerce Bureau of 
the Census, July 1977, p. 1 .............................24, 25

United States Code, Cong. & Adm. News, 1972, p. 
2168 ...................................................................... . 31

Regulations
Code of Federal Regulations, Title 29, Sec. 2610 .... 25

Code of Federal Regulations, Title 29, Sec. 2611 .... 25

Statutes

California Government Code, Sec. 45342 ............. 41

Civil Rights Act of 1964, Title VII, Sec. 703 .......... 3

Civil Rights Act of 1964, Title VII, Sec. 703(a).. 2

Civil Rights Act of 1964, Title VII, Sec. 703(a) 1 
(42 U.S.C. §2000e-2(a) (1 )) ............................... 10

Civil Rights Act of 1964, Title VII, Sec. 703(a)2 
(42 U.S.C. §2000e-2(a) (2)) .................. 10, 11, 38

Civil Rights Act of 1964, Title VII, Sec. 703(e).. 2

Civil Rights Act of 1964, Title VII, Sec. 703(h)
(42 U.S.C. §2000e-2(h)) ...... .............. .2, 11, 20

Civil Rights Act of 1964, Title VII, Sec. 706(g).. 2

P a g e

117



V l .l l .

Equal Employment Opportunity Act of 1972, 42 
U.S.C. Sec. 2000e-2 ....................3, 10, 12, 47, 48

Equal Employment Opportunity Act of 1972, 42 
U.S.C. Sec. 2000e-2(a) ..................    2

Equal Employment Opportunity Act of 1972, 42 
U.S.C. Sec. 2000e-2(e) .........................................  2

Equal Employment Opportunity Act of 1972, 42 
U.S.C. Sec. 2000e-5(g) .........................................  2

Equal Pay Act of 1963, Sec. 3 (Pub. L. 88-38, 77 
Stat. 56) .................................................................  2

Los Angeles City Charter, Sec. 220.1, California 
Stat. 1937, Chap. 3, Resolutions, p. 2627 ............  41

Los Angeles City Charter, Sec. 220.1(1) (a) ........ 2

Los Angeles City Charter, Sec. 220.1(1 )(g) ........ 2

United States Code, Title 26, Sec. 7 2 (c)(3 )(A ), 
Regs. 1.72-9 .......................................................... 25

United States Code, Title 26, Sec. 410 (IRC 1954)
..................................................................................  25

United States Code, Title 28, Sec. 1254(1) ............  2

United States Code, Title 29, Sec. 206(a)(1) ........ 20

United States Code, Title 29, Sec. 206(d) ............ 11

United States Code, Title 29, Sec. 206(d)(1) .....
....................................................................... 2, 13, 42

United States Constitution, Art. I, Sec. 1 ..............2, 42

United States Constitution, Art. I, Sec. 8 (Clause
18) .............................. ............ ........ .................. . 2

United States Constitution, Art. II, Sec. 3 ............2, 44

P a g e



IX.

United States Constitution, Art. Ill .............. ......44, 45

United States Constitution, Art. Ill, Sec. 1 ..... ........
................................................2, 3, 9, 37, 42, 44, 50

United States Constitution, Fifth Amendment.......... 37

United States Constitution, Tenth Amendment........
..................................... 2, 3, 9, 37, 40, 42, 43, 49, 50

P a g e

United States Constitution, Eleventh Amendment ..
, ............................................2, 3, 9, 37, 42, 43, 49, 50

United States Constitution, Fourteenth Amendment 
................... - 2 ,  3, 9, 37, 39, 40, 42, 43, 45, 49, 50

United States Constitution, Fourteenth Amendment,
Sec. 1 ............................................................ ...........  2

United States Constitution, Fourteenth Amendment,
Sec. 5 ..............................................2, 37, 39, 40, 44

Textbooks

Blumrosen, Administrative Creativity: The First 
Year of the Equal Employment Opportunity
Commission, 38 Geo. Wash. L.R. 694 (1970) .... 33

Gerber, Joseph S., “The Economic and Actuarial 
Aspects of Selection and Classification,” Forum,
Vol. X, No. 4, Summer 1975 ............................  24

Jefferson, Thomas, Autobiography (Mod. Lib.
Ed.), p. 21 ................................................... .........  22

Locke, John, Treatise on Civil Government.... .......  43
Roberts’ Rules of Order (rev. ed.), p. 142 ............ 20

“Sex Differentials in Mortality Widening,” Metro­
politan Life Statistical Bulletin Vol. 52 (Dec.
1971), pp. 3-6 ......................................................  24 119





IN THE

Supreme Court of the United States
October Term, 1977 

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS,

MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

PETITIONERS’ OPENING BRIEF.

Opinions Below.
The Opinion of the United States Court of Appeals 

for the Ninth Circuit is reported at 553 F.2d 581 
(9th Cir. 1976).

The decision and order granting preliminary injunc­
tion by the United States District Court for the Central 
District of California is reported at 387 F.Supp. 980

121



-2-

(C.D.Cal., 1975). The order granting summary judg­
ment was issued without further opinion and is included 
in the Appendix, p. 134.

Jurisdiction.
The judgment of the Court of Appeals for the Ninth 

Circuit was entered on November 23, 1976, and amend­
ed December 23, 1976. Petitioners’ timely petition for 
rehearing was denied on April 18, 1977. Certiorari 
was granted October 3, 1977.

The jurisdiction of this Court is invoked pursuant 
to 28 U.S.C. §1254(1).

Constitutional Provisions, Statutes and Rules Involved.
Involved herein are Article I, Sections 1 and 8 

(Clause 18), Article II, Section 3, Article III, Section 
1, the 10th, 11th and Sections 1 and 5 of the 14th 
Amendment of the United States Constitution. The 
texts thereof are printed as Exhibit A1 hereto. Section 
3 of the Equal Pay Act of 1963 (Pub. L. 88-38, 
77 Stat. 56), 29 U.S.C. §206(d )(l); and Sections 
703(a)(e)(h ) and 706(g) of Title VII of the Civil 
Rights Act of 1964, as amended in 1972 (the Equal 
Employment Opportunity Act of 1972), 42 U.S.C. 
§2000e-2(a), (e), (h) and §2000e-5(g). The texts 
thereof are printed as Exhibit B hereto. A summary 
of legislative history of the Equal Pay Act, Title VII 
of the Civil Rights Act of 1964 and the 1972 amend­
ment is printed as Exhibit C. The Charter of the 
City of Los Angeles, a state law, §220.1 (1) (a) (g) 
is printed as Exhibit D.

Exhibits refer to attachments to this brief (hereafter
Ex...... ). Appendix refers to separately filed Appendix (here-

122 after App......).



Questions Presented.
1. Where females receive the same monthly pension 

benefits as males, but for longer life expectancies than 
males, do Title VII and the Equal Pay Act prohibit 
different pension plan contributions for females and 
males?

2. Where Congress has not delegated to administra­
tive agencies any quasi-legislative or quasi-judicial au­
thority but has limited statutory jurisdiction to the courts 
with intent that the courts determine questions of law 
and fact de novo, may the courts abdicate that juris­
diction and defer to the pronouncements of the agen­
cies, especially when the agencies’ pronouncements 
are also shown on their face to be contrary to the 
expressed will of their principal, Congress?

3. May lower courts adopt a rule of law requiring 
a municipal employer to pay higher compensation to 
females than males in view of the jurisdictional limita­
tions of Title VII, the Equal Pay Act, Article III and 
the 10th, 11th and 14th Amendments of the United 
States Constitution?

4. Is the decision of the courts below contrary 
to General Electric Co. v. Gilbert?

Statement of the Case.
This case was brought under Title VII of the Civil 

Rights Act as amended in 1972 (hereafter “Title VII”), 
claiming a violation of Section 703 of the Act (42 
U.S.C. §2000e-2).

Plaintiffs are civil service employees of the City 
of Los Angeles Department of Water and Power and 
as such are members of a compulsory retirement Plan 
owned and managed by such City Department (here- 123

— 3—



4-

after referred to respectively as the “Plan” and the 
“Department” ).

The Plan provides for several kinds of pension bene­
fits at the employee’s option. The most common is 
a “formula pension”. Such formula is a monthly payment 
equal to 2% of average monthly salary paid during 
the last year of employment times the number of years 
of employment. This monthly benefit is guaranteed 
for life. It is a vested right of the employee. Because 
women outlive men, the total amount paid as pension 
to a woman is greater than that paid to a man. (App. 
86-88. )

For clarity, this Plan should be contrasted with those 
pension systems which pay men and women the same 
total pension benefits during their respective life spans, 
but pay women smaller monthly pension amounts. See, 
e.g., Henderson v. Oregon, 405 F.Supp. 1275 (1975), 
on appeal in the Ninth Circuit.

The two systems may be analogized to loaves of 
bread accrued at the date of retirement. In the Hender­
son system, women receive the same size loaf as men 
but because the life expectancy is longer, the monthly 
“slices” received by a woman are smaller than those 
received by a man. In contrast, under the Department’s 
Plan, women are to receive the same size “slice” of 
bread each month after retirement but because they 
live longer they must have a longer loaf in order 
to pay all the “slices”.

To fund the Plan, the employees and the Department 
contribute thereto. To fund the “longer loaf” payable 
to females, higher contributions are necessarily required 
for women than for men. Although contributions made 
by the women themselves were slightly higher than 
the contributions made by men, the Department also1 2 4



contributed disproportionately more for women than 
for men.

Further, since each employee has an absolute right 
to the return of all his or her contributions, plus 
a vested pension right, the present worth of all compen­
sation paid to female employees is higher than the 
present worth of all compensation paid to male em­
ployees.2

The following table shows an example of the present 
value at age 30 of pension benefits of a male and 
a female; and the present value of contributions neces­
sary to fund a formula pension for each, retirement 
being at age 65.

Male Female
1. Age hire 30 30
2. Monthly salary during career $1,000 $1,000
3. Monthly allowance at 65 700 700
4. Present Value of Pension discounted at 

5V2% interest and 1951 GA Mortality
Table: 9,257 11,886

5. Monthly employee contribution to Plan 22.20 25.49
(x 1.1484 =

6. Department’s 110% monthly matching
contribution 24.42 28.04

7. Present value (at age 30) of contribu­
tions to fund above pension at 5Vi % 
and 1951 table:
a) Member Contribution 4,069 4,743
b) Department's 110% matching 4,476 5,217
c) Additional Department contribution 712 1,926
d) Total Department contribution 5,188 7,143

The contributions by the Department for a woman 
employee were always greater than for a corresponding 
man. The amount of compensation for a woman was 
always greater than for a corresponding man.

Established state law is that all pensions have present value 
and City pensions are vested rights. In re Marriage of Brown, 
15 Cal.3d 838, 126 Cal.Rptr. 633 (1976); Abbott v. City of 
San Diego, 165 Cal.App.2d 511, 517, 332 P.2d 324 (1958).



6

The plaintiffs herein contended in the trial court 
that differential contributions by men and women were 
per se illegal. Despite the statutory language that “it 
shall not be an unlawful employment practice . . .  to 
differentiate upon the basis of sex in determining the 
amount of the wages or compensation paid or to be 
paid . . the trial court erroneously held that all 
differentiation upon the basis of sex was illegal.

“In short, under the Equal Employment Oppor­
tunity Act of 1972, all stereotypic treatment of 
persons based on . . . sex whether rational or 
irrational is dead.” (Emphasis added) 387 F.Supp. 
980, 984.

(This Honorable Court has never held that differentia­
tion on the basis of sex is per se illegal.)3

Based on this view of law, the District Court enjoined 
withholding larger contributions from females and or­
dered payment of prior “excess contributions” with in­
terest to be paid to plaintiffs forthwith. The effect of this 
decision is to mandate the Department to compensate 
its female civil service employees at an even higher 
rate in comparison to males than it had previously 
done.

The primary basis for this decision was reliance 
on what the District Court viewed as “EEOC amended 
regulations” (App. 130 and 132).

The District Court subsequently entered summary 
judgment in accordance with the preliminary injunction 
opinion.

3Kahn v. Shevin, 416 U.S. 351, 40 L.Ed.2d 189, 94 S.Ct. 
1734 (1974); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 
1377 (1975); Geduldig v. Aiello, 417 U.S. 484, 495, 41 
L.Ed.2d 256, 94 S.Q. 2485 (1974); Craig v. Boren, 429 
U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Califano v.

126 Goldfarb, 430 U.S. 199, 97 S.Ct...... , 51 L.Ed.2d 270 (1977).



— 7—

Your petitioners appealed contending that by relying 
on a 1972 EEOC “guideline” as if it were a regulation, 
the trial court failed to exercise its explicit statutory 
responsibility to impartially and independently interpret 
the law de novo, and that at all events the “guideline” 
was ultra vires and contrary to Title VII and the 
Equal Pay Act. Your petitioners contended that they 
had committed no unlawful employment practice as 
statutorily defined, and that the decision penalized the 
employer and discriminated against men, by requiring 
the employer to compensate women at a higher rate 
than men.

Similarly, your Petitioners contended that to attempt 
to lump males and females together as in a so-called 
“unisex table” would necessarily result in males’ con­
tributions subsidizing the females’ benefits, and would 
consequently discriminate against males (see footnote 
4, Court of Appeals Dissent, 553 F.2d 581, 598). 
It’s like having men and women appear to contribute 
to equal size “loaves” but then taking part of the 
loaf of the shorter-living men, to pay “slices” to the 
longer-living women.4

The Court of Appeals repeated the errors of the 
trial court. Even when the General Electric5 opinion 
was issued, a majority failed to recognize those errors.

By “deference” to administrative agencies the lower 
courts conferred on the agencies lawmaking powers 
that Congress specifically determined not to grant, which

4A “unisex” table would also adversely affect non-working 
women, wives of male employees. (App. 44). Since a high per­
centage of women are non-working, subsidizing of working 
women’s benefits by the working males would adversely impact 
non-working wives of male employees.

5General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 
401, 50 L.Ed.2d 343 (1976). 127



Congress specifically intended the agencies not exercise, 
and which this Court in General Electric said the 
agencies did not have. Your petitioners were thereby 
effectively deprived of an impartial de novo determina­
tion of issues of law and fact, which Congress specifical­
ly intended your petitioners be afforded by independent 
determination of the courts. Such ruling undermined 
the authority of this Honorable Court and nullified its 
holding and reasoning in General Electric Co.

The majority erred in failing to recognize (despite 
footnotes 17 and 18 in General Electric) that it is 
not an unlawful employment practice to differentiate 
upon the basis of sex in determining the amount of 
compensation to be paid if the differential payment 
is not prohibited by the Equal Pay Act.

The respondents take the position that no matter 
how great the difference in life expectancy, Title VII 
does not permit differentiation in periodic contributions 
and benefits.

Since such differentiation is not prohibited, we re­
spectfully request this Honorable Court to direct the 
entry of judgment in favor of Petitioners.

Summary of Argument.
1. It is not an unlawful employment practice under 

Title VII and the Equal Pay Act to differentiate 
upon the basis of sex with respect to employee 
pension contributions or benefits based upon 
differential life expectancy. It is not a violation 
under the plain meaning of the statutes; under 
the legislative history; or under the law, as 
applied, in General Electric Co. v. Gilbert.



— 9

2. In order to hold against Petitioners, the lower 
courts relied on administrative interpretations 
of law issued without legislative authority. By 
such reliance, they abdicated their jurisdiction 
to determine the law independently de novo. 
After General Electric v. Gilbert the majority 
below relied for “authority” on its inability to 
“find a conflict” among the administrative inter­
pretations. This case involves a question of law 
as to statutory interpretation to be decided solely 
by the courts and the “deference” below ex­
ceeded the statutory and constitutional juris­
diction of the courts and denied petitioners 
their right to de novo court determinations.

3. The application of a standard under Title VII 
and The Equal Pay Act broader than that con­
templated by Title VII and The Equal Pay 
Act or by the Fourteenth Amendment, is con­
trary to Article III and the Tenth, Eleventh 
and Fourteenth Amendments to the Constitu­
tion.

4. The decision of the courts below was contrary 
to the opinion of the court in General Electric, 
in that (1) it failed to permit consideration 
of life expectancy as a factor other than 
sex upon which differential compensation could 
be paid; (2) it disallowed under the statute 
a benefit package which was concededly worth 
no more to men than to women; (3) it required 
the employer to pay more to women than to 
men; (4) it changed the definition of “discrimi­
nation” from that enacted in the statute to 
one permitting no differentiation between the 
sexes in compensation for any reason.

129



ARGUMENT.
I

IT IS NOT AN UNLAWFUL EMPLOYMENT PRACTICE 
TO DIFFERENTIATE BETWEEN THE SEXES WITH 
RESPECT TO DEFERRED COMPENSATION TO BE 
PAID UNDER PENSION BENEFIT PLANS.

The lower courts failed to give effect to the plain 
meaning of the statutes, the explicit legislative intent, 
and General Electric Co. v. Gilbert. The courts incor­
rectly held that no differentiation in compensation on 
the basis of sex was allowed by Title VII.

The Statutes.
Title VII prohibits certain unlawful employment prac­

tices which it carefully defines. The very same section 
states that it is not an unlawful employment practice 
to differentiate upon the basis of sex in payment of 
compensation. (42 U.S.C. §2000e-2.) It says, in part. 

“It shall not be an unlawful employment practice 
. . .  to differentiate upon the basis of sex in 
determining the amount of wages or compensation 
paid or to be paid to employees . . (Ex. B-3.)

To assume as did the lower courts that there can 
be no differentiation upon the basis of sex contradicts 
the statute. No one can read so much of the statutory 
language and legitimately conclude that Title VII is 
a blanket prohibition against differentiation upon the 
basis of sex with respect to compensation paid or 
to be paid. According to the statutory language such 
differentiation is not ipso facto an unlawful employment 
practice.

Whatever act may be listed as an unlawful employ­
ment practice in subsections (a)(1 ) and (2) of section

- 10-

130



11—

703, subsection (h) thereof expressly excludes from that 
definition, excludes from the sub-chapter, and exempts 
from the statutory prohibition any differentiation in 
compensation upon the basis of sex which is permitted 
by the Equal Pay Act. (42 U.S.C. §2000e-2(a) and 
(b)).

The Equal Pay Act in turn says it is not ipso 
facto unlawful to pay different wages to one sex than 
the wages paid to the opposite sex. Differential wages 
are unlawful only if there is no other factor other than 
sex that is the basis for the wage differential.

It provides in pertinent part:
“No employer . . . shall discriminate . . . between 
employees on the basis of sex by paying wages 
to employees . . .  at a rate less than the rate 
which he pays to employees of the opposite sex 
. . .  for equal work . . . except where such 
payment is made pursuant to . . .  (i) a seniority 
system; (ii) a merit system; (iii) a system which 
measures earnings by quantity or quality of pro­
duction; or (iv) a differential based on any other 
factor other than sex . . .” (29 U.S.C. §206(d).)
(Ex. B-l.)

Again, no one can read the language of the Equal 
Pay Act and conclude that it is ipso facto unlawful 
to differentiate upon the basis of sex in the payment 
of compensation. Discrimination “between employees 
on the basis of sex” is not ipso facto discrimination 
against one or the other.

To reach the opposite conclusion, one would also 
have to reject the statutory language in Title VII:
“It shall not be an unlawful employment practice to 
differentiate upon the basis of sex in determining ^3^



— 12-

the amount of wages or compensation paid or to be 
paid to employees . . .  if authorized by [The Equal 
Pay Act].” (Ex. B-3.)

This language is an explicit congressional declaration 
that Title VII incorporates the earlier act, its standards 
and policies—that differentiation on the basis of sex 
in payment of compensation is not ipso facto unlawful. 
General Electric, supra, p. 144.

The legislative history (see discussion, infra) demon­
strates that even before that language was added to 
Title VII, the intent of Congress was that to differ­
entiate on the basis of sex in the payment of compensa­
tion was not an unlawful employment practice per 
se. The above language was added to Section 703, 
for the purpose of expressing that intent of Congress 
as positive law.

In 1972, when Congress amended Title VII, it re­
affirmed that only an adverse action statutorily defined 
as an “unlawful employment practice” is prohibited. 
Congress expressly reaffirmed the jurisdictional limita­
tions, which had been added to the legislation in 1964, 
for the specific purpose of limiting remedies to that 
conduct which Congress defined as an “unlawful em­
ployment practice.”

Legislative History.
This Honorable Court held in General Electric that 

differential fringe benefits were not prohibited by Title 
VII and the Equal Pay Act. The full legislative history 
only touched on by the Court compels such conclusion. 
It demonstrates that the employment practice involved 
herein is not an unlawful employment practice.

132



— 13
1. The Equal Pay Act.

The Equal Pay Act was based first on legislative 
recognition of the fact that the essence of personnel 
organization is classification of all work in a particular 
establishment into various classes of “jobs” (or in 
civil service, “positions”), e.g., “clerks”, “drivers”, “Ste­
nographers”, etc., each of which classes has different 
tasks to perform, and each of which requires employee 
abilities or talents correlative to the tasks of each 
class respectively. (Ex. C-l.)

The legislative prohibition was directed to that precise 
business reality.

Many different forms of legislation for equal compen­
sation were proposed. From among them, Congress 
chose to enact an amendment to the Fair Labor Stand­
ards Act. (Ex. C-l.) That Act was only intended to 
regulate wage rates. Thus, it states:

“No employer . . . shall discriminate . . . between 
employees on the basis of sex by paying wages 
. . .  at a rate less than the rate at which he 
pays wages to employees of the opposite sex . .
(29 U.S.C. §206(d) (1 )) (Emphasis added).

The prohibition was directed to paying unequal wages 
for work of the same class. Where there was another 
factor other than sex for the wage differential the 
prohibition did not lie.

Thus, in presenting the bill to the House it was 
repeatedly pointed out that under the bill an employer 
might have different classes of workers such as male 
packagers and female packagers and might pay them 
differently where there were actual factors of difference 
as the basis for different pay (109 C.R. 9196, 9209, 
2/23/63). If male packagers were required to lift 133



heavy packages and female packagers were not, more 
compensation could be paid to the male packagers 
because of the actual differences between the two 
classes.

Merely nominal differences between the two classes 
(such as simply calling one “packagers” and the other 
“selectors” when there was no factor of difference 
between the two classes other than sex) would, of 
course, not authorize a difference in wages paid to 
the classes.

Similarly, an insignificant difference in the work 
between the two classes would not of itself authorize 
a difference in wages paid to each. However, under 
the prohibition of the Act, employers might continue 
differential payment based on differential classification 
when there was a good faith differential and the same 
was not a subterfuge to pay women less wages for 
the same work. Previous cases have so understood 
the Act. Coming Glass Works v. Brennan, 417 U.S. 
188, 41 L.Ed.ld 1, 94 S.Ct. 2223 (1974); Schultz 
v. Wheaton Glass Company, 421 F.2d 259 (3d Cir. 
1970) cert, den., 398 U.S. 905; Ammons v. Zia Co., 
448 F.2d 116 (10th Cir. 1971).

Both houses rejected the broad prohibitions and pol­
icies of the bill introduced by the administration (Ex. 
C-l) (109 C.R. 9195, 5/23/63). They did so in four 
ways: (i) by adding the legislation to the Fair Labor 
Standards Act and therefore prohibiting only differential 
wages; (ii) by narrowing the statutory prohibition to 
unequal wages paid for “equal” work instead of for 
“comparable” work; (iii) by limiting the authority of 
the administrator to that of a prosecutor, and (iv) by 
adding exceptions to the bill which were intended not

— 14-

1 3 4



— 15—

merely as “defenses” but which were “exempted from 
the operation by the statute”. Such were consequently 
not prohibited and this made clear that sex alone 
was the consideration prohibited. The Committee report 
stated in part:

“Section 2 of the bill (H.R. 6060) amends section 
6 of the Fair Labor Standards Act by adding a 
new subsection thereto. This subsection, in effect, 
declares that wage differentials based solely on 
the sex of the employee are unfair labor standard.
. . . Three specific exceptions and one broad 
general exception are also listed. It is the intent 
of this committee that any of these exceptions 
shall be exempted from the operation of this stat­
ute. As it is impossible to list each and every 
exception, the broad general exclusion has been 
also included . . .” (Emphasis added.) (Ex. C-2.)

As a matter of statutory construction, the broad gen­
eral exclusion cannot mean factors not correlated 
with “maleness”/ “femaleness”. Where an employer is 
making different payments not correlated with a male/ 
female classification the statutory prohibition would 
not apply in any event. It is only where an employer 
is making differential payments to male/female classes 
that the Equal Pay Act comes into play. Differential 
payments for a factor not correlated with “maleness”/  
“femaleness” is entirely outside the prohibition of the 
Equal Pay Act in any event. Thus, the intent of the 
statute is that where there is a factor of difference 
between the classes, such as “male packagers” lifting 
heavy boxes and “female packagers” not including that 
factor, differential wages may be paid to the two sexes.

1 S 5



— 16-

If, on the other hand, every factor correlated with 
sex classification or with a differentiation based on 
sex were prohibited by the statute, then the broad 
general exclusion would have absolutely no meaning 
at all. Exception (iv) of the statute would become 
an “empty set” as no case would fall within it. To 
so interpret the exemption would turn it from “a broad 
general exclusion” (which Congress intended it to be) 
into a legal nullity. It would be tantamount to legislative 
repeal.

Congressional intent as to the scope of the fourth 
exemption was made clear by explicit history in both 
the Senate and House.

The Senate Committee bill contained a single ex­
emption, identical to the fourth exemption of the House 
bill, H. R. 6060. The Senate Committee report declared 
that such exemption was intended to encompass not 
only the other three exceptions contained in the House 
bill, but other cost factors. Since some employers had 
testified that other costs in employing women (including 
costs of fringe benefit plans) were higher for women 
than for men, it was intended to provide that different 
wages might be paid on that ground. In other words, 
since some employers urged they should be able to 
pay lower wages to women for the same work because 
other costs in employing women were higher than for 
men, the Senate Committee report said that such cases 
would be covered by the fourth exception—where such 
differential costs existed, lower wages could be paid 
to women than to men for the same work under 
the legislation. (Ex. C-4.)

The major premise was, of course, that differential 
fringe benefits for men and women were not prohibited 
by the legislation.

1 3 6



17-

An identical legislative intent is shown in the House. 
There Congressman Findley proposed to amend the 
pending bill (H. R. 6060) by adding a fifth exception 
to the bill. Such amendment would have, inter alia, 
permitted differential wages where other costs of em­
ploying women were greater (such as fringe benefit 
costs) than employing men to do the same work.

However, the House Committee members urged that 
the purpose of the proposed amendment (as Congress­
man Findley stated such purpose) was already covered 
by exception (iv) of the bill and a fifth exception 
was therefore unnecessary. Differential wages would 
be paid where other costs of employing women to 
do the same work were higher, as there would then 
be another factor other than sex for differential wages.

Thus it was stated with respect to Congressman Find­
ley’s proposal to add an additional exception (v), 
that it was redundant since it was already covered 
by exception (iv). Congressman Thompson (in charge 
of the bill) said “the language the gentleman [Mr. 
Findley] would add is redundant”; “the protection the 
gentleman [Mr. Findley] seeks already exists in the 
bill. I agree with the gentleman [Mr. Goodell who 
wrote the bill before the House] that the legislative 
history should show our intention”. Then in direct 
answer to a direct question from Congressman Pucinski, 
the Chairman stated that “any other factor other than 
sex” covered what Congressman Findley was trying 
to do. (109 C.R. 9217, 5/23/63.)

Finally, after the House passed H. R. 6060, it struck 
the language of the Senate bill and substituted therefor 
the language of H. R. 6060. When both bills were 
then returned to the Senate, Senator Dirksen made

1 3 7



18—

the point that he had spoken with those who would 
be conferees and “there is general agreement that the 
House language is quite preferable to the language 
contained in the Senate bill.” (109 C.R. 9762, 5 /28 / 
63.) The Senate thereupon adopted the House bill 
with the four exemptions expressly stated.

Thus, the history in both Senate and House is clear 
that the purpose of the Equal Pay Act was not to 
prohibit all compensation differentials between the sexes 
but only such wage differentials where not based on 
another factor other than sex alone. Pay differentiation 
upon the basis of sex is prohibited if, but only if, 
there is no other factor other than sex that is the 
basis for the pay differential.

2. Title Vn.
The face of Title VII as well as its legislative history 

conclusively demonstrates that although “sex” and “race 
or color” are treated by the same statute, Congress 
did not intend to, and did not, treat both matters 
in the same way.

Secondly, the face of the statute as well as the 
legislative history demonstrates that neither house of 
Congress intended to forbid all differentiation upon 
the basis of sex in determining the amount of com­
pensation paid or to be paid. The 88th Congress which 
enacted The Equal Pay Act, was well aware of the 
inherently different problems involved in legislating in 
regard to sex discrimination, as compared with dis­
crimination on account of race or color.

After it was proposed to add “sex” to Title VII 
of the Civil Rights bill, the one serious argument 
advanced in its favor was not that the two different



1 9 -

subjects should be treated in the same way but that 
adding “sex” was necessary to ensure the “color-blind” 
impact of the law among women in the labor market. 
Further, after the amendment was passed, “sex” was 
then added as a bona fide occupational qualification 
without objection of any member of the House. In 
contrast, the House explicitly rejected an amendment 
to make “race or color” a bona fide occupational 
qualification. (Ex. C-5-7.)

When the House Bill (H.R. 7152) reached the Senate 
there was extensive debate as to whether to refer the 
bill to Committee to clarify possible ambiguities in 
the bill. Possible conflict with the Equal Pay Act 
was specifically mentioned.

Interpretive Memoranda previously relied on by this 
Court® were then introduced to the effect (1) that 
classification by sex “where there is a rational basis” 
was not prohibited by Title VII; and (2) that the 
standards of the Equal Pay Act would be applicable 
in matters of compensation.

Because the House bill was not referred to a Senate 
committee, an ad hoc committee (Senators Dirksen, 
Humphrey, Clark, Case, et al.) met to consider all 
pending amendments and the views of those who desired 
to present them. The result of this ad hoc committee 
consideration was an amendment in the nature of a 
substitute bill (Amendment No. 1052) introduced by 
Senators Dirksen, Humphrey, and others. It provided 
that three of the Equal Pay Act exceptions would 
also be exceptions to the Title VII prohibitions—dif­
ferentials based on a good faith merit system, quantity

6This Honorable Court relied on such Memoranda in Inter­
national Brotherhood of Teamsters v. United States, et al.,
.... U.S...... , 52 L.Ed.2d 396, 424-425, 97 S.Ct......., 45 L.W.
4506, 4513 (May 31, 1977). 139



— 2 0 —

and quality of work or seniority system (42 U.S.C. 
§2000e-(h); A-3; 29 U.S.C. §206 (a)(l); App. E-8).

The fourth exception to the Equal Pay Act which 
allowed differential compensation for any other factor 
other than sex and therefore simply prohibited differ­
ential compensation for sex only, was expressly adopted 
by the Bennett Amendment. The manner in which 
the amendment was adopted demonstrates the intent.

Prior to the introduction of the Dirksen-Humphrey 
substitute, Senator Dirksen yielded to Senator Bennett 
who proposed his amendment to the pending House 
Bill. Thereafter, both Senator Dirksen and Senator 
Humphrey expressly accepted the Bennett proposal as 
an amendment to their proposal. All three Senators 
explained the effect of accepting the Bennett Amend­
ment. That intent was to provide, as a matter of 
law, and not merely as a matter of history, that the 
prohibitions of Title VII with respect to compensation 
of the sexes were not broader than the Equal Pay 
Act—-that all the exemptions of the earlier act were 
exemptions to Title VTI as well. (Ex. C-12.)

After the Bennett Amendment was accepted, the 
Senate then substituted the language of the Humphrey- 
Dirksen bill (as amended by the Bennett Amendment) 
for the language of the House Bill. Such bill was 
then the pending business and subject to amendment.7

7Proper procedure requires of course that an amendment 
in the nature of a substitute be voted on “twice”. “Even 
if the [amending] paragraph consitutes the entire resolution 
and the motion to substitute is adopted, it is necessary then 
to vote on adopting the resolution as amended since it has 
only been voted to substitute one paragraph for another.” Rob­
erts’ Rules of Order (rev. ed.), p. 142. This procedure protects 
the right of an individual to vote in favor of substituting 
the language of proposal “B” in preference to proposal “A”, 
and then to vote against enacting “B" as law.

1 4 0



- 2 1 -

Senator Humphrey was then specifically asked “as 
floor manager of the bill” about the impact of the 
pending bill on retirement systems. Senator Randolph, 
who asked the question, had been co-author of the 
Senate subcommittee’s equal pay bill which was identi­
cal to H.R. 6060. Senator Humphrey was the floor 
manager of the pending civil rights bill and also had 
presented the Senate Committee’s equal pay bill. He 
also had expressly accepted the Bennett Amendment 
to clarify the effect of the Humphrey-Dirksen bill in 
regard to equal pay between the sexes. In answer 
to Senator Randolph’s question, Senator Humphrey 
agreed that accepting the Bennett Amendment made 
it unmistakably clear that “differences of treatment 
in industrial benefit plans, including earlier retirement 
options for women, may continue in operation under 
this bill if it becomes law.” (Emphasis added.) (See 
General Electric, supra, p. 144, 50 L.Ed.2d 343, 359.)

The express purpose for this colloquy was to plainly 
set forth Congressional intent as to the effect of the 
Bennett Amendment. (Ex. C-15-16.)

The House thereafter adopted the Senate bill. In 
so doing, it specifically recognized and affirmed the 
Senate intent. (Ex. C-16.)

Thus, the legislative history confirms that Congress 
carefully considered, and carefully drafted legislative 
language which would make clear that it is not an 
unlawful employment practice, to differentiate upon 
the basis of sex in determining the amount of compen­
sation paid or to be paid as pension plan or other 
deferred compensation benefits. To differentiate upon 
the basis of sex where differential compensation paid 
or to be paid is based on the factor of life expectancy 
is not an unlawful employment practice under Title 
VII.

141



3. 1972 Legislative Action.

In 1972 Congress considered and rejected proposals 
to broaden Title VII. In rejecting such proposals, it also 
expressly reaffirmed major points of its 1964 action.8

The 1972 action is important for three reasons.
First, Congress reaffirmed that only those adverse 

actions that are statutorily defined as unlawful employ­
ment practices constitute unlawful discrimination under 
Title VII. In so doing, Congress rejected proposals 
to redefine discrimination in terms of “systems and 
effects” (House Committee Report, U.S. Code, Cong. 
& Adm. News, 1972, pp. 2143-44, 2150-52.)

Second, Congress rejected proposals to give the ad­
ministrative agency any legal authority either to develop 
its own definition of discrimination, or to exercise 
any quasi-legislative or quasi-judicial authority. It also 
rejected the premise of the House Committee bill that 
the EEOC had special “expertise”. (Ex. C-23-25.)

Third, it reaffirmed the requirement that court or­
dered remedies not apply unless the court find the em­
ployer has “intentionally” engaged in an unlawful em­
ployment practice as statutorily defined. (Ex. C-26.)

In 1964, each house of Congress had added limita­
tions to the jurisdictional provision to make clear that 
they were not defining unlawful discrimination in any 
new or unusual way. The 1972 action reaffirmed that 
intent. Under the 1972 action, the courts could employ 
additional remedies if (but only if) an unlawful employ­
ment practice had been committed. Congress rejected 
the proposal that a new definition of unlawful discrim-

8“As the sentiments of men are known not only by what they 
receive, but what they reject also, I will state the form of the 
Declaration as originally reported.” Thomas Jefferson, Auto- 

1 4 2  biography, p. 21 (Mod. Lib. Ed.)

— 22—



•23—

ination could be developed by the courts beyond that 
statutorily defined. (Ex. C-23-27.)

This most recent expression of legislative intent is 
controlling.

Application of the Statutes.
The Bennett Amendment and Congressional history 

demonstrate that Congress dealt with the problem 
of differential compensation based upon factors corre­
lated with sex differently than Congress dealt with 
other classifications of employees, Griggs v. Duke Pow­
er, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) 
or with discrimination against an individual employee, 
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973).

In contrast with both those cases, the present one 
involves classification or differentiation upon the basis 
of sex with respect to compensation paid or to be 
paid to persons in each class.

Here the Department withholds from gross salary 
a pension contribution based on age, sex, salary and 
length of service. This contribution, together with the 
entire pension plan benefit is deferred compensation.

The Bennett Amendment excludes from the definition 
of unlawful employment practice differentiating or clas­
sifying “upon the basis of sex in determining the amount 
of the wages or compensation paid or to be paid 
to employees” if such differentiation is permitted by 
the Equal Pay Act. Such Act authorizes what it does 
not prohibit.

In determining the amount of compensation paid 
or to be paid under that Act, the employer may pay 
less if other costs of employing women to do work 
of the same class is greater than for men. Since pension 143



-2 4 -

costs for females are concededly greater than for males 
the employer could pay less wages or compensation 
in other forms. (Exs. C-3-4 and C-15-16.)

Furthermore, the employer may also differentiate 
upon the basis of sex with respect to compensation 
where the factor for which differential payment is made, 
though correlated with sex is a factor other than sex. 
Here the factor is life expectancy.

Given the recognized difference in life expectancies, 
it is impossible to have equal periodic pension benefits 
unless the females or the employer or both contribute 
more for the females, or unless the males subsidize 
the females. Certainly, the statute does not require 
the employer to pay women more than men, but only 
to refrain from paying women less where there is 
no rational basis for the wage differential. Longevity 
and the cost of funding for it are two distinct “other 
factors” specifically recognized by both houses as a 
basis for differentiation. (Ex. C-4-5.)

It is universally recognized that females as a group 
outlive males. (General Electric v. Gilbert, supra at 144; 
Reed v. Reed, 404 U.S. 71, 75, 30 L.Ed.2d 225, 92 S. 
Ct. 251 (1971); Gallentine v. Fiero, 110 Cal.App. 
345, 346, 294 Pac. 59, 60). Plaintiffs’ counsel 
conceded the fact. [Rptr. Tr. p. 36, October 24, 
1974.] Nor is the fact changing. This is shown 
by the Department’s own experience on which the 
Plan is based (App. 87) as well as general studies. 
(“Sex Differentials in Mortality Widening, “Metropoli­
tan Life Statistical Bulletin Vol. 52, (December 1971) 
pp. 3-6; United States Census Bureau study cited 
in “The Economic and Actuarial Aspects of Selection 
and Classification” by Joseph S. Gerber, Forum, Vol. 
X, No. 4, Summer 1975; Population Estimates and 
Projections, Projections of the Population of the United144



■25-

States: 1977 to 2050, U.S. Department of Commerce 
Bureau of the Census, July 1977, p. 1). Such data 
show that the difference is widening at a time when 
more and more women are entering the work force. 
The above cited July publication of the Bureau of 
the Census indicates a projected 9.2 year difference 
between males and females in life expectancy by the 
year 2050.

That Congress did not intend under the statutes 
to disregard the differences in life expectancy can 
also be concluded from the fact that Congress has 
continued to recognize the differences in other statutes 
dealing with pension benefits. The Internal Revenue 
Code, for example, continues to value male and female 
annuities differently for tax purposes (26 U.S.C. §72
(c)(3)(A),  Regs. 1.72-9). The Employee Retirement 
Income Security Act of 1974, “ERISA”, funding stand­
ards require actuarial soundness (26 U.S.C. (IRC 
1954) §410 et seq.), and when enacted clearly con­
templated use of sex-differentiated mortality tables. In­
deed, the Pension Benefit Guaranty Corporation requires 
valuation of plan assets and benefits to be measured 
by six sex-differentiated mortality tables, 29 CFR 2610, 
2611, 41 F.R. 48484-48491.

Finally, this Honorable Court in application of Title 
VII, 1) implicitly recognized that differential payment 
based upon longevity was payment for another factor 
other than sex which was permitted by Title VII (Gen­
eral Electric, supra at 144), and 2) that Title VII did 
not require an employer to contribute more for female 
employees than for males. (General Electric, supra p. 
139 fn. 17).

This conclusion is confirmed by the legislative history 
of the 1972 amendments to Title VII.

1 4 5



-26—

There Congress rejected a proposal to authorize re­
definition of unlawful discrimination in terms of “sys­
tems and effects”. (Ex. C-24.) Here the “system” is clas­
sifying employees upon the basis of sex for pension pur­
poses; the “effect” is that women employees as a class 
have greater deferred compensation in all forms and, 
with the higher employer contributions, considerably 
higher present economic worth.

The “systems and effects” are, however, irrelevant. 
The only question is whether an adverse action as 
statutorily defined has been committed. Since the Ben­
nett amendment sanctions the practice here involved that 
question must be answered in the Department’s favor.

n
THE LOWER COURTS ABDICATED THEIR RESPONSI­

BILITY TO RENDER A DE NOVO INTERPRETATION 
OF THE LAW AND REACHED A RESULT CON­
TRARY TO STATUTE.

In General Electric, it was urged that the Court 
defer to administrative interpretations of the statute 
and thus abdicate its own responsibility to determine 
the law. The Court declined to do so. It held the 
administrative pronouncements were not regulations and 
it would not abdicate its constitutional responsibility. 
(Id. at 145.)

The lower courts in the instant case did the opposite. 
They assumed incorrectly that the administrators had 
the power to make authoritative pronouncements on 
the meaning of the statute. By “deference” to such 
pronouncements the lower courts failed to exercise their 
responsibility to independently and impartially deter-

1 4 6



- 2 7 -
mine the law. After General Electric, such “deference” 
represents a failure to exercise its authority under the 
Supreme Court.

These circumstances, in light of clear Congressional 
provision and intent on the matter, require that the 
problem be explicitly addressed.

Legislative Action and Intent.
1. Equal Pay A ct

In enacting the Equal Pay Act, Congress established 
the Administrator as a prosecutor. In so doing, Congress 
was well ware of Skidmore, et al. v. Swift & Co., 
343 U.S. 134 (1944) interpreting the Fair Labor Stand­
ards Act. In that case, the Court had addressed the 
question whether a particular industry-wide practice 
constituted “overtime” in that industry. The Court held 
that the Administrator’s experience in the practices 
of that industry constituted a body of experience as 
to matters of fact upon which the fact-finder might 
properly rely.

The Court carefully noted that it was a matter 
of fact being considered. Regarding administrative bulle­
tins, the Court pointedly observed “they do not consti­
tute an interpretation of the Act. . . .” 343 U.S. 
at 139. (Emphasis added). Rather, they were in the 
nature of expert testimony or opinion based on wide 
and specialized experience in matters of fact in an 
industry.

Under the Equal Pay Act, however, the legislative 
history demonstrates that Congress intended that the 
bona fide judgments of the employer as to work classi­
fications in a particular establishment not be displaced 
by claimed superior expertise of the administrator

1 4 7



-28—

as to industry-wide practice as to the most appropriate 
manner to classify the work in that establishment.

The prosecutor had the burden of proof as to the 
propriety of a classification made in a given case. (Ex. 
C-18-19.) Thus, where the prosecutor showed that an 
employer made a classification of work (day shift/night 
shift) but then abandoned differential payment for that 
time factor, the Court held there was no factor other 
than sex shown for the previous wage differential but it 
was solely because of sex.9 Corning Glass Works 
v. Brennan, 417 U.S. 188 (1974).

With respect to matters of law, Congress was even 
more explicit. Congress purposely withheld from the 
Administrator all authority to issue regulations. (Ex. 
C-18-19.)

Congress noted that there are three levels of pro­
nouncements which an administrator might direct to 
the public: 1) legislative regulations, 2) interpretive 
regulations, and 3) bulletins. Congress noted that the 
Administrator might issue bulletins, not because of 
any delegation of power from Congress, but rather be­
cause of inherent authority in any prosecutor to advise 
the public of the cases he will prosecute.

However, Congress intended that the bulletins not 
be given any standing in court except as a defense 
where relied upon by the defendant. It was not to 
be used against a defendant. It might be a shield

9Where prima facie equality as to all factors except payment 
to the sexes is shown, the defendant has the burden of producing 
evidence that another factor other than sex is the basis for 
the differential payment; the prosecutor retains the burden of 
proof and persuasion that it is because of sex alone. Cf. Mc­
Donnell Douglas v. Green, supra. (See Ex. C-18-19.)

1 4 8



but it was not to be a policy making sword, (Ex. 
C-19-20.)

It is well established that the weight (if any) “to 
be given to interpretive rule varies with its statutory 
and administrative context. . . .” United States v. 
Stapf, 375 U.S. 118, 127 n. 11, 84 S.Ct. 248, 255, 
11 L.Ed.2d 195 (1963). Here Congress intended that 
bulletins be given no weight in the scales of justice 
against a defendant, but only in defendant’s favor. (Ex. 
C-18-21.)

Similarly, in General Electric v. Gilbert, supra, p. 
144 this Court cited bulletins of the Administrator 
not as being correct interpretations of the statute that 
the administrator had authority to issue and a court 
might therefore follow. Rather, they were cited 
as administrative recognition of a fact— a factor of 
difference between the sexes—that life expectancy in 
females is greater than in males (which Congress intend­
ed be recognized under the law). Moreover, the Court 
cited those bulletins to hold in favor of defendant, 
not to hold against it.

Even if there were no Congressional history, Skid­
more, et al. v. Swift & Co. does not authorize deference 
to bulletins as interpretations of the statute, or the 
meaning of law. Hence, for the lower courts to have 
concluded as they did that bulletins and guidelines 
are “entitled” to deference as interpretations of law 
against a defendant constitutes either a delegation or 
an abdication of judicial power. To say (as the lower 
courts did) that they are “regulations” binding on the 
defendant and the Court, is an even greater error. It 
denies defendant the right to an impartial and independ­
ent de novo determination that Congress intended the 
defendant be afforded by the Court under the statutes.

— 2 9 —

1 4 9



2. Title VD and 1972 Amendments.

In considering equal pay legislation, a major concern 
was to draft legislation that would not make gov­
ernment the determiner of proper employment standards 
and practices generally. That same general concern 
was manifest under Title VII.

The bill originally proposed had provided that the 
EEOC was to have both quasi-legislative and quasi­
judicial authority. Both were stricken from the bill. 
Instead, the House determined that EEOC was to act 
as prosecutor—the same administrative pattern as set 
up under the equal pay bill. (Ex. C-21.)

The House pointedly added the word “procedural” 
to the EEOC’s authority to issue procedural regulations. 
On record keeping and procedural regulations, EEOC 
was to comply with usual requirements of notice and 
opportunity to be heard. (Ex. C-21-22.)

The EEOC was authorized to bring suit on “reason­
able cause”—a phrase which was intended to make 
very clear that EEOC had no authority to make, and 
would not make, any determination on ultimate issues 
of law or fact. Such are to be determined by the 
Court de novo. McDonnell Douglas v. Green, supra.

An EEOC’s decision is like a policeman’s decision 
to make an arrest. Since the statute says EEOC can 
act on “reasonable cause”, it follows that the court 
may not regard an EEOC decision to act as a finding 
of ultimate fact or conclusion of law to which the 
Court may defer.

In 1964, the Senate further limited the EEOC to the 
role of a conciliation agency, to attempt conciliation

—30—

150



— 31

as a condition precedent to an individual bringing 
suit in a federal court. Consistent with the legislative 
intent that the Act impose no new burdens in States 
having FEPC laws, Congress intended that the con­
ciliation process also be attempted as a prerequisite 
to filing suit, through State agencies.

In 1972, Congress enlarged the EEOC authority 
from a conciliation agency to a prosecutor. In so doing, 
both houses of Congress again rejected proposals to 
delegate quasi-legislative or quasi-judicial authority to 
the agency. A major reason for so doing was the 
view that the agency is an advocate, a partisan of 
a viewpoint, and that the defendant should receive 
an impartial determination de novo. (Ex. C-24-27.)

The view which prevailed in the 1972 legislation 
was expressed by the minority of the House Committee 
in the following terms:

“We contend that the EEOC has attained an 
image as an advocate of civil rights, and properly 
so. For this very reason, we submit that it cannot 
be an impartial arbiter of the law. An advocate, 
by nature, represents one side of an issue. How 
can he then be asked to apply the law without 
prejudice?” (U.S. Code, Cong. & Adm. News, 
1972, p. 2168.)

The same objection goes to a prosecutor’s extra­
judicial pronouncements as to the meaning of a law. 
If an advocate’s interpretations are afforded a priori, 
“greater weight” the defendant is not afforded an im­
partial determination of the law.

1 5 1



— 32—

3. Application.

There are three major problems with respect to ad­
ministrative pronouncements raised herein.

First is the matter of administrative faithfulness to 
the will of the principal. It is basic to constitutional 
government that the executive branch is to “take Care 
that the Laws be faithfully executed.” (U.S. Const. 
Art. II, Sect. 3, Ex. A-l.) A similar principle exists in 
the law of agency—that the agent (the administrator) is 
to be faithful to the will of its principal (Congress).

The problem is twofold. First, where the agent has 
not been granted authority to speak for the principal, 
he exceeds the authority of his agency by purporting 
to act with authority to speak for the principal. Thus, 
where the Secretary of Labor purports to have authority 
to speak for Congress in executing the law—to issue 
authoritative pronouncements as to the intent of the 
statute, the Secretary is acting outside both the authority 
of his agency and the explicit Constitutional limitations 
upon the executive branch. Likewise, EEOC so acts 
outside its agency when it pretends to have authority 
to speak for Congress on the meaning of law when 
Congress has not given it that authority.

Here, for example, bulletins and guidelines have been 
published in the Code of Federal Regulations as if 
they were regulations. They were referred to, and relied 
on, as regulations by the lower courts in the instant 
case even though the defendant/petitioners repeatedly 
urged they did not have such status and this Court 
in General Electric so held. “Reasonable cause” de­
cisions of the EEOC were likewise relied upon as 
though they were authoritative interpretations pursuant 
to a Congressional grant of authority. The fact that

152



— 33—

the EEOC not only does not have such authority 
but also determined to give its pronouncements the 
ostensible appearance of authority looking for reliance 
thereon by “busy federal judges” is well documented. 
Blumrosen, Administrative Creativity: The First Year 
of the Equal Employment Opportunity Commission, 38 
Geo. Wash. L.R. 694 (1970). (C-22.)

As a matter of additional importance, it is significant 
that the earliest EEOC testing guidelines in 1966 were 
simply a statement of what the EEOC “advocates” and 
“recommends”. This was the earliest administrative in­
terpretation by the agency of the scope of its own 
authority. It was only after certiorari was granted in 
Griggs v. Duke Power Co., supra, that EEOC without 
notice published new testing guidelines in a format 
that made them appear as regulations.

The problem herein is not only a matter of the ad­
ministrative agency acting outside its grant of authority, 
it also results in 1) a failure of the judiciary properly 
to exercise its jurisdiction and 2) a denial of defendants’ 
rights.

If, for example, the agencies did have authority to 
issue substantive regulations or make quasi-judicial de­
terminations, the defendants would be entitled to notice 
and opportunity to be heard. If they had been pro­
nounced without such due process minimums, the court 
would disregard them. However, here the bulletins and 
guidelines (which are not on matters of fact based

1 5 3



— 34-

on industry-wide expertise but are interpretations of 
law) were issued without either notice or opportunity 
to be heard.

Nevertheless, the lower courts treated them as if 
they were to be “deferred to” even above the decision 
of this Honorable Court in General Electric v. Gilbert. 
They treated them as if such administrative pronounce­
ments were not merely to “guide the public” as to 
the administrator’s views, but were to “guide the courts” 
and “guide” the courts even ahead of the judgments 
of the only Court established by the Constitution itself. 
This makes the courts simply the arm of the administra­
tor. They treated the pronouncements not merely as 
the administrator’s views with no standing in court 
against defendant (as Congress intended) but rather as 
conclusive determinations of matters of law. Even regu­
lations and quasi-judicial decisions of agencies that have 
been duly delegated such authority are not entitled to 
such “weight”. In such cases a defendant may challenge 
a regulation as being ultra vires. Of course where 
that issue is raised the regulation is not itself the 
measure of the meaning of the statute. Similarly, a 
quasi-judicial determination is only presumptively cor­
rect, as to matters of fact. The defendant in such 
cases is entitled to judicial review on matters of law 
and to rebut the presumption on adverse findings of fact.

Here, however, the courts treated the administrative 
pronouncements (which were also in content directly 
contrary to the statute they purported to “interpret”) 
as if they were above the statute, and the agent above 
the will of the principal.

Thus, even if the Secretary of Labor or the EEOC 
issued a bulletin or guideline that they were going

1 5 4



— 35—

to prosecute pension plans requiring differential con­
tributions such pronouncements would be entitled to 
no standing in court against a defendant, as a matter 
of legislative intent. (Ex. C-19.)

The question is not whether a defendant “violated” 
any such pronouncement. The question is whether the 
practice is an unlawful employment practice as defined 
by statute. And on that issue the administrative pro­
nouncements are entitled to no weight, except as relied 
on by a defendant in his defense.

To hold otherwise is to hold that the agent may 
bootstrap itself into authority not granted by its prin­
cipal. Such “deference” renders the administrator prose­
cutor, judge and jury without ever appearing in the 
case.

The practice is doubly wrong here. Here the admin­
istration sought in 1972 to have the Legislature rede­
fine “discrimination” (or to permit the EEOC or the 
courts to do so) and to have the Legislature delegate 
quasi-legislative and quasi-judicial authority to it.

Having failed in the Legislature, the EEOC then 
issued new “guidelines” post-1972 and sought as an 
“amicus” in both courts in the instant case to have 
the courts adopt those new interpretations as defining 
prohibited conduct under the statute and “recognize” 
the EEOC as having quasi-legislative and quasi-judicial 
authority.

The success of this improper action by the EEOC 
is shown by the fact that the District Court made 
an express finding that the EEOC “amended its regula­
tions” in 1972, and the District Court based its judgment 
on such “amended regulations.” (App. 130 and 132.)

155



36—

The EEOC had similar success in the Court of 
Appeals. While this Court explicitly pointed out in 
General Electric that “guidelines” are not regulations, 
even the Dissenting Opinion referred to them as “regu­
lations.” (553 F.2d 598.)

The second, analogous matter, concerns the agents’ 
faithfulness to the will of principal in matters of the 
laws’ content. Where the agent purports to have author­
ity to speak for the principal, others may mistakenly 
take the agents’ pronouncements as being in content, 
a faithful representation of the will of the principal. 
The courts erroneously so took them here.

Thus, while the statute states that it shall not be 
an unlawful employment practice to differentiate upon 
the basis of sex in payment of compensation, yet the 
courts below concluded (relying on administrative pro­
nouncements) that the purpose of the statute was the 
direct opposite, namely, to prohibit all such differentia­
tion. (C-28-29.)

The majority Court of Appeals initially found “con­
flicts” among the administrative pronouncements in its 
original opinion, as did this Court in General Electric 
v. Gilbert. On rehearing the majority below could 
“find” no conflict.

Searching for “conflicts” among administrative pro­
nouncements entirely diverted the court from the pri­
mary issue before it and from its constitutional and 
statutory responsibility—to determine the meaning of 
the statute.

The issue is not whether the employment practice 
is condoned or condemned by administrative pronounce­
ments or briefs filed by the administrator (who is 
an advocate or partisan even when appearing as 
“amicus”). The issue is rather whether the statute 
itself prohibits a practice in question.



•37-

Viewing the statute through the “glasses of inter­
pretation” provided by the administrator substitutes dif­
ferent statutory prohibition for the one expressed by 
Congress. (Ex. C-28-29.)

The jurisdictional limitations of Title VII contemplate 
that the courts give effect to the statute both in respect 
to what conduct Congress prohibited and in respect 
to the absence of quasi-legislative and quasi-judicial 
authority in the agency. For the lower courts to have 
disregarded the Congressional will and intent on either 
point is to act outside their own jurisdiction as expressly 
limited by the statute. It also denies to the Petitioners 
that right to an impartial determination of issues that 
both the Constitution and the statutes guarantee. As 
to your individual petitioners it is a denial of due 
process of law guaranteed by the Fifth Amendment. Ill

Ill
THE DECISION BELOW IS IN EXCESS OF THE COURT’S 

JURISDICTION UNDER ARTICLE III AND CON­
TRARY TO THE 10TH, 11TH AND 14TH AMEND­
MENTS TO THE CONSTITUTION.

The decision of the lower courts—requiring an irra­
tional classification with respect to compensation—ex­
ceeded Article III and the 14th, 10th, and 11th Amend­
ments to the Constitution.

The 1972 Amendments to Title VII were enacted 
by Congress under §5 of the Fourteenth Amendment 
which empowers Congress to enforce that amendment 
by appropriate legislation. (Garland M. Fitzpatrick v. 
Frederick Bitzer, 427 U.S. 445 (1976).) Ergo, legis­
lation adopted by the Congress pursuant to the Four­
teenth Amendment must be tested by Fourteenth 
Amendment standards.

157



—3 8 -

Two results follow. First, the statute could not pro­
vide for a violation without the requirement that the 
employer have a discriminatory purpose. (Washington 
v. Davis, 426 U.S. 229, 245, 48 L.Ed.2d 597, 610- 
611, 96 S.Ct. 2040 (1976).)

The legislative history makes it plain that this was 
in fact what Congress had in mind when it adopted 
both Title VII and the Equal Pay Act. Good faith 
classifications were to be permitted. The requirement 
of “intent” on the part of the employer was specifically 
added to Title VII and this was reaffirmed by the 
1972 legislation. (Ex. C-26-27.)

Where the classification itself is not rational or bona 
fide, the employer’s personal subjective intent as to the 
means to perpetuate or accomplish that classification10 
is irrelevant. Griggs v. Duke Power, supra.

On the other hand, where the classification is rational 
or bona fide there is no unlawful practice unless unlaw­
ful intent is shown. Teamsters v. United States, supra, 
..... U.S.........., 52 L.Ed.2d 396, 432 fn. 50.

Second, the concept that all differentiation based 
upon sex with respect to compensation is illegal was

l0In Griggs v. Duke Power the Court treated the employment 
practice as one of “classification” covered by Section 703(a)(2). 
The work (and workers) had been classified as “laborers” 
and “coal handlers”, but this was merely a difference in name 
only, and not based on actual differences in the work of the 
“classes” or correlative abilities demanded thereby. If the stand­
ards regarding work classification intended by the Equal Pay 
Act were applied to the facts, the classification would be not 
rational or bona fide. The use of a written test by the employer 
as a means of perpetuating such classification does not change 
the problem or alter the conclusion. Every employment standard 
and its application is a “test” to classify employees or applicants 
for some purpose. Where as in Griggs, the particular “test” 
is employed to perpetuate or accomplish an arbitrary, artificial 
and unnecessary classification (“laborer”/ “coal handler”) that 
tends to adversely affect the employment status of a “laborer” 
because of race, a violation is shown as the Court held.



39—

clearly never a part of equal protection under the 
Fourteenth Amendment. Rational classification is the 
standard and this is the standard Congress adopted. 
Such rational classification was expected under the 
Equal Pay Act and Title VII. Factors such as seniority, 
merit, quality and quantity of work were obvious bases 
for rational classification and were so recognized in 
the statute and legislative history.

So, too, sex itself was recognized as a rational classifi­
cation with respect to compensation where another 
correlated factor was the basis for the pay differential. 
Similarly, sex is a rational classification where the 
factor is an occupational qualification bona fide.

The 1972 amendments reaffirmed the 1964 defini­
tion of unlawful “discrimination.” (Ex. C-24-26.)

The fact that Congress did not intend exceeding 
standards of the Fourteenth Amendment was recognized 
by this Court in General Electric. “We should not 
readily infer that it meant something different than 
what the concept of discrimination has traditionally 
meant, . . .” (General Electric, supra, 429 U.S. 145, 
50 L.Ed.2d 343, 360.) This conclusion is supported 
by additional legislative history not quoted in the Court’s 
opinion.

The Honorable Court has construed the Due Process 
and Equal Protection provisions as not prohibiting clas­
sifications such as defendants’ Plan where there is a 
rational basis therefor. Kahn v. Shevin (1974) 416 
U.S. 351, 40 L.Ed.2d 189, 94 S.Ct. 1734; Schlesinger 
v. Ballard (1975) 419 U.S. 498, 42 L.Ed.2d 610, 
95 S.Ct. 72; Geduldig v. Aiello (1974) 417 U.S. 
484, 41 L.Ed.2d 256, 94 S.Ct. 2485.

Similarly the statute on its face and its legislative 
history show that a classification related to sex “where



—40-

there is a rational basis” (Ex. C-l-4) is not prohibited 
unless the plaintiffs show such is not in good faith 
or is a subterfuge. See Schultz v. Wheaton Glass Co., 
421 F,2d 259 (3d Cir. 1970), cert. den. 398 U.S. 
905. The Dissent below so concluded.

It cannot be supposed that Congress is empowered 
by Section 5 of the 14th Amendment to enact legisla­
tion prohibiting classifications that are permitted by 
the 14th Amendment. Hence if Congress had enacted 
a law prohibiting rational classifications or requiring 
irrational ones, it would be acting in excess of its 
14th Amendment power.

Consequently, assuming arguendo that the trial court 
was correct that even “rational” classification is pro­
hibited (and irrational classification therefore required) 
by Title VII, it would follow necessarily that to that 
extent Congress acted in excess of its 14th Amendment 
power.

Such exercise of power would therefore have to 
be sustained, if at all, under some other grant of 
power—the commerce clause, for example.

But this Honorable Court has held that the Tenth 
Amendment is a limitation on the exercise of the 
commerce clause power in respect to cities. Such amend­
ment provides that powers not delegated to the United 
States are reserved to the States, and the authority 
of Congress to regulate in a manner which invades 
local sovereignty is limited thereby.

Thus this Honorable Court has held that Congress 
may not regulate compensation of civil service em­
ployees. The court stated in National League of Cities 
v. Usery (1976) 426 U.S. 833, 49 L.Ed.2d 245, 
253:

160



— 41—

“We have repeatedly recognized that there are 
attributes of sovereignty attaching to every state 
government which may not be impaired by Con­
gress, not because Congress may lack an af­
firmative grant of legislative authority to reach 
the matter, but because the Constitution prohibits 
it from exercising the authority in that manner.” 
(Emphasis added.)

Management of the City Department’s retirement 
plan is likewise a function of local government under 
state law (Charter §220.1, California Stat. 1937, Chap. 
3, Resolutions, p. 2627). (Ex. D -l.) The City Charter 
Section 220.1, and similarly, California Government 
Code Section 45342, require that the Plan be main­
tained on a sound actuarial basis. Requiring refunds 
of previous contributions prior to retirement interferes 
with actuarial soundness in a manner not required 
by equal protection or due process.11

Further, despite the majority Opinion below that 
the Department could pass on the cost of re­
funds by increasing all contributions or lessening 
benefits, such is not permitted by State law or by 
the Equal Pay Act. (State Law) Houghton v. Long 
Beach, 164 Cal.App.2d 298, 306 (1958); Henry v. 
City of Los Angeles, 201 Cal.App.2d 299, 314; (Equal

“ Even where there may be an unlawful employment practice 
an award of back pay is to be denied where the practice was in 
reliance on state law. Kober v. Westinghouse Electric Corpora­
tion, 480 F.2d 240, 248 (3rd Cir. 1973); LeBlanc v. Southern 
Bell Tel. & Tel. Corp., 460 F.2d 1228 (5th Cir. 1972); Rosen- 
feld v. Southern Pacific Co., 444 F.2d 1219, 1227 (9th Cir.); 
Manning v. General Motors Corp., 466 F.2d 812, 815-816 
(6th Cir. 1972). So, here, the trial court’s finding of lack of 
good faith (Finding 7, Conclusion 7, App. 130 and 132) after 
the EEOC “amended its regulations” in 1972 presumes in­
correctly that the EEOC has legislative authority.

161



-4 2 -

Pay Act) {Corning Glass Works v. Brennan, 417 
U.S. 188, 207, 41 L.Ed.2d 1, 17, 94 S.Ct. 2223
(1974), 29 U.S.C. § 2 0 6 (d )(l)). The Department is 
penalized by the decision because it must now reach 
into other city revenues to pay the difference. (See 
Edelman v. Jordan (1974) 415 U.S. 651, 653.)

It is likewise interfered with by the permanent injunc­
tion. Any legislation of Congress under either the Four­
teenth Amendment or under the commerce clause, for 
example, which interferes with the authority of local 
governmental entities to establish pension plans for 
its civil service employees would be an invalid invasion 
of local sovereignty. So would a law requiring payment 
of higher compensation to female civil service employees 
than males.

For the same reasons, the permanent injunction of 
the lower court and its award of back contributions 
exceeds the limitations of the Tenth Amendment. Such 
amendment is a limitation on all the powers delegated 
to the United States, including the judicial power dele­
gated by Article III, and not merely a limitation on 
those legislative powers that have been delegated to 
the Congress by Article I. As the Congress may not 
enact a law which interferes with local sovereignty, 
so the Court may not issue a decree which so interferes.

Assuming arguendo that by enacting Title VII Con­
gress had enacted a law which required the payment 
of higher compensation to female civil service employees 
than to males, for the courts to give effect to such 
a law would exceed the constitutional limitations on 
the courts’ power. The court may not so act. That 
was the precise holding of Marbury v. Madison, 1 
Cranch 137, 2 L.Ed. 60 (1803). The Court held 
that it would not exercise a power (even though Con­162



— 43

gress purported to confer or acknowledge it) when 
to do so would have the effect of the Court exceeding 
constitutional limitations upon it. The duty of the Court, 
the Chief Justice said, is to “read and obey” the law 
which limits the Court’s power.12 * * 15

For the same reasons dealing with the Tenth Amend­
ment, we submit that there also is a violation of the 
Eleventh Amendment by the decisions below, i.e., that 
to apply the statute in a manner outside the purview 
of the Fourteenth Amendment removes it from Congres­
sional authority under the Fourteenth Amendment. In 
Fitzpatrick v. Bitzer, supra, 427 U.S. 445, 456, fn. 
11, the Court noted that such challenge was not raised 
there. We have raised and do raise such a challenge.

There is another major jurisdictional limitation ex­
ceeded by the decisions below. Section 5 of the 14th 
Amendment gives the Congress the authority to enforce 
that article by appropriate legislation. That grant of 
authority is, we submit, exclusive. Especially where 
(as here) the Congress has exercised that authority, 
where it has enacted certain policies into law, it is 
not within the powers of either the executive or the 
judicial branch to give effect to different policies even 
for the purposes of “enforcing” the 14th Amendment. 
Any different view would lead to governmental chaos.

12The rationale of the decision was that prerogative power (in­
cluding the power to issue prerogative writs) was a power over
and above and outside law. John Locke, for example, so de­
scribed the power in his treatise On Civil Government. The Court 
held it must act under and according to law. Even though 
Congress recognized authority in the Court to issue such writs 
and exercise such prerogative power, the Court would not do so. 
In contrast, the courts below held they might exercise power 
even where not limited to them by Congress. The entirely dif­
ferent idea that the Court had authority superior to legislation 
was introduced in Dred Scott v. Sanford (1856) 19 How. 393,
15 L.Ed. 691.

163



4 4 —

We have above noted the express jurisdictional limi­
tation on the executive’s following different policies. 
The executive is charged that “the laws be faithfully 
executed” (Art. II §3.) The limitation of faithfulness 
likewise applies to any agent (such as the EEOC) that 
is an agency of Congress, its principal. The EEOC 
may not act except under and pursuant to the authority 
delegated by Congress.

Express limitations also exist with respect to the 
courts’ authority. Congress has clear constitutional au­
thority to specify the jurisdiction of the courts. Const. 
Art. III. Sheldon v. Sill (U.S. 1850) 8 How. 440, 
12 L.Ed. 114; Ex Parte McCardle (U.S. 1869) 7 
Wall. 506, 19 L.Ed. 264.

Thus, where, as here, Congress has not only exercised 
the authority granted by Section 5 of the 14th Amend­
ment, but has also limited the courts’ jurisdiction under 
that statute to those “adverse actions” as are defined 
by the statute and are “intentionally engaged in”, it 
is not within the courts’ power to develop broader 
definitions of unlawful discrimination in terms of “sys­
tems or effects” or otherwise. In fact it was to prevent 
that possibility that led to adopting the jurisdictional 
limitation in 1964. While in 1972 it was proposed 
to permit the development of a broader definition of 
unlawful discrimination in terms of “systems and ef­
fects”, that proposal was rejected and the jurisdictional 
limitations expressly reaffirmed. (Ex. C-24-26.)

Since 1972 the courts may now exercise broader 
remedial authority than under the 1964 statute, after 
it has been found that an “adverse action” as statutorily 
defined has been “intentionally engaged in”. However 
Congress in 1972 again precluded the courts from

164



— 45—

any “common-law-making” role in defining unlawful 
employment practices by express reaffirmations of the 
jurisdictional limitations of Title VII. (Ex. C-26.)

Of course Congress may so limit the courts. “There 
can be no question of the power of Congress to define 
and limit the jurisdiction of the inferior courts of 
the United States.” Lauf v. E. G. Skinner & Co., 
303 U.S. 323, 330 (1938). Where the courts act 
in excess of statutory jurisdiction they also act in 
excess of Article III.

The trial judge herein seemed unconcerned with the 
statutory language. He did not even make the findings 
which the statute requires as the condition precedent 
to the exercise of the courts’ remedial jurisdiction under 
the statute (Ex. B-4-5), namely, that the City was “in­
tentionally engaging in” an unlawful employment prac­
tice as statutorily defined. The trial court likewise 
ignored the jurisdictional limitation on an award of 
“back pay”—that such shall not be awarded if the 
action of the employer was “for any reason other” 
than discrimination13 on account of sex (Ex. B-4-5). 
These lapses of the trial court, plus its reliance on 
the EEOC “amended regulation” demonstrate that the 
trial court was not exercising its statutory judicial juris­
diction, but some new legislative jurisdiction.

That the Court may not act in excess of statutory 
jurisdiction (even if it had “enforcement” authority

13There was extensive and careful attention given to the 
meaning of “discrimination” in the 1963-64 debates. The Con­
gressional Record is very clear that although the opponents 
of the bill charged it had a new broad, sweeping meaning, 
the proponents of the bill whose intent is controlling said 
that it had the same well established meaning it already had 
under a number of already existing statutes. (110 Cong. Rec. 
7218, 5803, 5437, 7477.)

1 6 5



— 4 6 —

under the Fourteenth Amendment) is one of the founda­
tions of the “checks and balances” of American gov­
ernment. See Sheldon v. Sill (U.S. 1850) 8 How. 
440, 12 L.Ed. 114; Ex Parte McCardle, 7 Wall. 506, 
19 L.Ed. 264.

IV
THE DECISION OF THE LOWER COURT IS CONTRARY 

TO GENERAL ELECTRIC V. GILBERT.

General Electric.
In General Electric, the Court recognized the appro­

priateness of life expectancy (correlated with sex) as 
a factor other than sex for which differential compensa­
tion was allowed by the Bennett Amendment, under 
Title VII. General Electric, supra, p. 144, 50 L.Ed.2d 
343, 359.

The Court noted the acceptability under Title VII 
of a benefit package which was not proven to be 
worth more to men than women. General Electric, 
supra, 50 L.Ed.2d 343, 356.

The Court noted the appropriateness of the use 
of actuarial tables to show that a benefit plan was 
not a mere pretext to invidiously discriminate. General 
Electric, supra, 131-135, 50 L.Ed.2d 343, 354. On 
the other hand, in this case the courts below made 
the erroneous assumption that Title VII requires a 
municipal employer to pay greater economic benefits 
to one sex than to the other. They failed to correct 
this error even after this Honorable Court said:

“The District Court was wrong in assuming, as 
it did, 375 F.Supp. at 383, that Title VII’s ban 
on employment discrimination necessarily means 
that ‘greater economic benefit[s]’ must be required

166



— 47—

to be paid to one sex or the other because of 
their differing roles in ‘the scheme of human exist­
ence.’ ” General Electric, supra, 50 L,Ed.2d 343, 
356, fn. 17, 97 S.Ct. 401, 410, fn. 17. (Emphasis 
added.)

That the statutes do not require payment of greater 
benefits to one sex than the other is evident from 
their provisions.

The Equal Pay Act provides:
“[A]n employer who is paying a wage rate differ­
ential in violation of this subsection shall not, 
in order to comply with the provisions of this 
subsection, reduce the wage rate of any employee.”

To raise the compensation as to women generally 
above that of a man, “reduces” compensation as to 
men by comparison.

Title VII does not require any of the alternatives 
suggested by the courts below, all of which would 
have the effect of requiring that the employer pay 
females more or that the male employees (and their 
wives) subsidize larger female employees’ benefits. We 
do not contend on the record here presented that 
the employer may not voluntarily pay more to fund 
the larger female life expectancies; we do contend 
that such is not required by the statute. The statutory 
prohibition is directed to payment of unequal wages 
for equal work. A fortiori compensation may differ. 
A rational bona fide classification is sufficient under 
the statutes.14 For the lower courts to require the 
payment of more compensation to one sex than the

14Such conclusion would resolve the “no-win” situation raised 
by the men’s complaint that the Plan unlawfully discriminates 
against men. (App. 81.) 167



other as they did, violated the statutes before them 
on their own rationale.

The majority opinion of the Court of Appeal infers 
that the failure to include a number of other characteris­
tics which arguably may also affect longevity, such 
as smoking, drinking and obesity, makes sex differ­
entiated actuarial tables unacceptable.

Such reasoning is its own refutation. If sex plus 
age (i.e. longevity) can not be an “other factor other 
than sex” warranting a payment differential under the 
Bennett Amendment in and of itself, the addition of 
other characteristics will not make it so. The addition 
of other characteristics will not alter the underlying 
basic difference in life expectancy between males and 
females of the same age. It will only add other charac­
teristics—sex-neutral characteristics—on top of “differ­
entiation upon the basis of sex.” (42 U.S.C. §2000e-2.)

Either age plus sex-differentiated actuarial tables are 
permissible under the Bennett Amendment, or they 
are not. Either they constitute invidious discrimination 
or they do not. To hold that they might be acceptable 
if they also incorporate differentiation for smoking, 
drinking, obesity, and the like, is to acknowledge that 
such tables are acceptable.

The mere fact that your petitioners could have in­
corporated other characteristics affecting longevity does 
not mean that they must, nor does it invalidate the 
characteristics used. This Court rejected a similar argu­
ment regarding the disability program’s failure to ex­
clude other disabilities than pregnancy in General Elec­
tric.

As noted in General Electric, the package here pro­
vided covers the same category of risk for males and

- 4 8 -

168



- 4 9 -

females. There is no proof that the package is in 
fact worth more to men than women. The pension 
cost is nothing more than extra compensation. Remove 
the fringe benefit and increase wages by the amount 
paid for pensions by the employer, and the female 
would still have to pay more than the male to purchase 
an annuity paying the same periodic benefits as the 
male’s. General Electric, supra, pp. 138-139. The re­
spondents seek to have the employer compelled to 
pay the difference. Title VII does not require it.

Conclusion.
The order of the courts below which was outside 

the statute would have drastic, widespread consequences 
to government and industry, threatening the financial 
stability of pension systems at a time when many 
such systems are already severely strained and freeze 
into law a system adversely affecting male employees 
and their female non-working spouses. It was not the 
intent of Congress to cause such significant and sweep­
ing consequences to government and industry. Willing­
ham v. Macon Telegraph Publishing Co., 507 F.2d 
1084, 1090 (5th Cir. 1975).

The law sought by respondents is contrary to the 
Equal Pay Act and Title VII, which on the face 
of both statutes, permit the differentiation provided 
in petitioners’ Plan. Furthermore, legislative history 
clearly shows that Congress intended to allow different 
life expectancy to be differently treated by the employer.

To reach the result below, the courts had to ignore 
the statutory language, and the legislative intent, and 
instead defer to interpretative bulletins of the admin­
istrative agencies, in the face of the will of Congress and 
this Court’s judgment to the contrary. 169



—50-

In reaching the result below, the court further applied 
a standard outside the purview of the Congressional 
authority under the Fourteenth Amendment. Essentially 
the court said all differentiation regardless of intent vi­
olates the law. The court refused to find a discriminatory 
purpose, refused to allow any classification such as 
that permitted under the Fourteenth Amendment, and 
in so doing, violated its responsibilities under Article 
III of the Constitution and Title YII which limits 
its jurisdiction. To sustain such determinations of the 
courts below, would therefore violate the Tenth and 
Eleventh Amendments to the United States Constitu­
tion.

Since respondents have conceded the actuarial prem­
ise underlying the petitioners’ Plan, it is submitted 
that it would be appropriate for this Honorable Court 
to remand the case to the court below with directions 
to enter judgment on the Title VII issue in favor 
of your petitioners. Petitioners respectfully request that 
the Court of Appeals’ decision, therefore, be reversed 
with such directions to the District Court.

Respectfully submitted,

Burt Pines,
City A ttorney,

Edward C. Farrell,
Chief Assistant City Attorney for 

Water and Power,
J. David Hanson,

Deputy City Attorney,
David J. Oliphant,

Deputy City Attorney,
By David J. Oliphant,

Deputy City Attorney,
Attorneys for Petitioners.

1 7 0



IN THE

Supreme Court of the UniteB-Stetes
October Term, 1977 

No. 76-1810

City of Los Angeles, et al.,

vs.

Marie Manhart, et al.,

Petitioners,

Respondents.

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

BRIEF FOR RESPONDENTS.

KENNETH M. SCHWARTZ, Esq., 
LAURENCE D. STEINSAPIR, Esq., 
ROBERT M. DOHRMANN, Esq., 
RICHARD D. SOMMERS, Esq., 
HOWARD M. KNEE, Esq.,

Two Century Plaza, Suite 1900, 
2049 Century Park East,
Los Angeles, Calif. 90067, 

Attorneys for Respondents.

Of Counsel:
KATHERINE STOLL BURNS, Esq.,

15760 Ventura Boulevard, Suite 601,
Encino, Calif. 91436,

SCHWARTZ, STEINSAPIR, DOHRMANN 
& KREPACK,
Two Century Plaza, Suite 1900,
2049 Century Park East,
Los Angeles, Calif. 90067.

________________________________________  171





SUBJECT INDEX

Question Presented ........._......................................... 1

Statement of the Case ................................................  2

A. Nature of the Case .............................. ........ . 2

B. History of the Case .......... ...... .......................  3

Summary of Argument ............................. .................  7

Argument ................................................................... 12

The Mortality Tables Used by Water and Power 
to Determine Employee Contributions to Its 
Pension Plan Were Explicitly Sex-Based and 
Discriminated Against Women in Violation of
Title VII ............ .................... ...................... ...... 12
A, Water and Power’s Pension Plan Dis­

criminated Against Women on Its Face .... 13
B. Water and Power’s Pension Plan Imposed

on Women a Substantial Burden That 
Men Were Not Required to Bear ............  29

Water and Power’s Use of Sex-Segregated Tables 
Violates Title VII as Interpreted Both by the 
EEOC and the Department of Labor ..............  36
A. EEOC Guidelines Forbid Employers

From Requiring Female Employees to 
Pay More for Pension Benefits Than Sim­
ilarly Situated Male Employees ................  36

B. Labor Department Interpretive Bulletins,
Like EEOC Guidelines, Forbid Employers 
From Requiring Female Employees to 
Make Larger Pension Contributions Than 
Similarly Situated Male Employees ........ 42



The Randolph-Humphrey Colloquy Does Not 
Support Water and Power’s Claim That the 
Bennett Amendment Was Designed to Permit 
Differential Treatment of Men and Women 
Under Retirement Plans ................ ...................  49

Respondents Are Entitled Under Title VII to 
Restitution of the Contributions They Were 
Illegally Required to Make to Water and Pow­
er’s Plan .............................................-..... ..........  55

Conclusion ................................................................  60

ii.

P a g e

174



TABLE OF AUTHORITIES CITED

Cases Page
Albemarle Paper Co. v. Moody, 422 U.S. 405, 95

S.Ct. 2362 (1975) ................................... .......55, 56
Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 

(7th Cir. 1971), cert, denied. 404 U.S. 939
(1971) ...................................... .................50, 52, 53

Brennan v. Veterans Cleaning Service, Inc., 482 F.
2d 1362 (5th Cir. 1973) ......................................  46

Califano v. Goldfarb, 430 U.S. 198, 97 S.Ct. 1021
(1977) ....................................... ..25, 26, 28, 29, 50

Chastang v. Flynn & Emrich, 541 F.2d 1040 (4th 
Cir. 1976) ......................................... ............. ........  53

Craig v. Boren, 427 U.S. 190, 97 S.Ct. 451 ............
...........- ......... .......... ......... .......18, 24, 25, 26, 27, 29

Diaz v. Pan American World Airways, 442 F.2d 
385 (5th Cir. 1971) ...........................   16

Dothard v. Rawlinson, ........ U.S..........., 97 S. Ct.
2720 (1977) ................12, 14, 15, 16, 31, 32, 33

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347
(1974) .........         58

Fitzpatrick v. Bitzer, 390 F. Supp. 278 (D. Conn.
1974) , aff’d on this issue, 519 F.2d 559 (2d Cir.
1975) , aff’d in part and rev’d in part on other 
grounds, 427 U.S. 445, 96 S. Ct. 2666 (1976) ..
- ......................... ....... ..................... 53, 54, 57, 58, 59

Franks v. Bowman Transportation Co., 424 U.S.
747, 96 S.Ct. 1251 (1976) .................................. 60

Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 
1764 (1973) ........................................ 25, 26, 29, 60

iii.

175



IV.

Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485
(1974) ............................ .................................. 23, 24

General Electric Co. v. Gilbert, 429 U.S. 125, 97
S. Ct. 401 (1976) ...........................6, 22, 23, 24, 26
- .................................... - ........ -27, 28, 29, 35, 36, 54

Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct.
849 (1971) .............................. ........23, 30, 33, 36

Henderson v. Oregon, 405 F. Supp. 1271, appeal 
docketed, No. 76-1706 (9th Cir., March 30,
1976) ...................................... ....................... ..20, 31

International Brotherhood of Teamsters v. United 
States, ...... U.S........ , 97 S.Ct. 1843 _____ ____ 52

Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717
(1966) ...............     22

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817
(1967) ..................................    24

Mt. Healthy City School Dist. v. Doyle, .... U.S......,
97 S.Ct. 568 .................................      57

Nashville Gas Co. v. Satty, ........  U.S. ...................
U.S.L.W..........  (decided Dec. 6, 1977) ............
...................................... ...................12, 29, 30, 35, 38

NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 
S.Ct. 287 (1953) ...............................................  41

Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260
(1970) ........   22

Peters v. Missouri Pacific Railroad Co., 483 F.2d 
490 (5th Cir. 1973) .............   53

Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 
S. Ct. 496 (1971) ............................. 12, 14, 19, 60

P a g e

176



V.

Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251 (1971) .. 25 
Reilly v. Robertson, 360 N.E.2d 171 (1977) -..20, 32
Robinson v. Lorillard, 444 F.2d 791 (5th Cir. 

1971), cert, denied 404 U.S. 1006 (1971) ........ 33
Rosen v. Public Service Electric & Gas Co., 328 

F. Supp. 454 (D.C.N.J. 1970), remanded 477 
F.2d .... (3rd Cir. 1973) ........ .............................. 51

Rosen v. Public Service Electric & Gas Co., 409 
F.2d 775 (3rd Cir. 1969) ................ 40, 41, 52, 53

Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct.
161 (1944) .......................................... ..................  36

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208
(1972) .................. ....... ........................................ 34

Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040
(1976) ........... .................. .......... .......... ................ 30

Weinberger v. Wisenfeld, 420 U.S. 636, 95 S.Ct. 
1225 (1975) ...................................... 25, 26, 27, 29

Wirtz v. Midwest Mfg. Co., 18 WH Cases 556 (S.D.
HI-, 1968) ....................................................... ..44, 45

P a g e

Federal Register
30 Federal Register (Dec. 2, 1965), pp. 14926-28.. 38
31 Federal Register (Feb. 11, 1966), p. 2657 ...... 44
33 Federal Register (Feb. 24, 1968), p. 3344    39

Miscellaneous
109 Congressional Record 8915 ..............................  48
109 Congressional Record 9207 (89th Cong. 1963)

........................... -........................................... 47
110 Congressional Record 13663-64, June 12,

1964 ............ ..............................................................  50 177



VI.

House Report No. 309 to accompany H. R. 6060, 
May 20, 1963, Committee on Labor and Educa­
tion, reprinted in 1963 U.S. Code Cong. & Ad­
min. News 687, 689 (88th Cong., 1st Sess.) ___ 47

Legislative History, pp. 64, 416-417 ...................61, 62
Legislative History of the Equal Employment Op­

portunity Act of 1972 (“Legislative History”), 
United States Senate (U.S. Gov’t. Printing Office, 
Washington, D.C., 1972) p. 1844 ................... 52

Legislative History, p. 1848 ........ ........ .....................  55
Senate Report No. 92-415, 92d Cong., 1st Sess., 

p. 5 ..................................... .................... ...... ....39, 62

P a g e

Regulations
Code of Federal Regulations. Title 29, Sec. 800.116

(d) ................................................ - _________ 41, 44
Code of Federal Regulations, Title 29, Sec. 800.151

............................................................ .......................  44
Code of Federal Regulations, Title 29, Sec. 1604.7

(b)   41
Code of Federal Regulations, Title 29, Sec. 1604.9

(b) ...................................... ........................ ...3, 36, 55
Code of Federal Regulations, Title 29, Sec. 1604.9

(e) .................................................................. 3, 37, 55
Code of Federal Regulations, Title 29. Sec. 1604.9

(f) ..................................................... 3, 9, 10, 36, 55
Code of Federal Regulations, Title 29, Secs. 800.- 

119-800.163 ........... ........................................... 41. 44

178



Rules Page
Federal Rules of Evidence, Rule 201 .......................  20

Statutes
California Constitution, Art. I, Sec. 1 ....................  4
California Constitution, Art. I, Sec. 7 (d) .......    4
California Constitution, Art. I, Sec. 21 ................... 4
Civil Rights Act of 1964, Sec. 703(a) ................ 13, 15
Civil Rights Act of 1964, Sec. 703(a)(1 ) ___7, 12, 60
Civil Rights Act of 1964, Sec. 703(a)(2 ) ..... 7, 12, 60
Civil Rights Act of 1964, Sec. 703(e) ................ 15, 16
Civil Rights Act of 1964, Sec. 703(h) ............ 10, 42
Equal Pay Act of 1964, Sec. 6(d) ...........................  54
Equal Pay Act of 1964, Sec. 6 (d )(1 ) ................  42
Government Code, Sec. 7500 ..................................5, 21
Los Angeles City Charter, Sec. 220.1 __________  3
Los Angeles City Charter, Sec. 220.1(f) ............ 4, 59
United States Code, Title 28, Sec. 1331 ................  5
United States Code, Title 28, Sec. 1343(3) .............  5
United States Code, Title 28, Sec. 1343(4) .............  5
United States Code, Title 28, Sec. 2201 ...................  5
United States Code, Title 28, Sec. 2202 ...............   5
United States Code, Title 29, Sec. 206(d) ....10, 42, 43
United States Code, Title 29, Sec. 206(d)(1) .....

.........................................................................42, 47, 49
United States Code, Title 29, Sec. 206(d) (1) (i)- 

(iii) ..... .................................................................... 46
United States Code, Title 29, Sec. 206(d) (1) (iv)

.....—............................ -..............................-.................. 10, 4 6 179

vii.



United States Code, Title 29, Sec. 623(h)(2) ........ 21
United States Code, Title 42, Sec. 401(a) ............  51
United States Code, Title 42, Sec. 1983 .............. 4, 6
United States Code, Title 42, Sec. 2000e-2 ............  1
United States Code, Title 42, Sec. 2000e-2(a) (1)

............................................................................. 2, 4, 12
United States Code, Title 42, Sec. 2000e-2(a) (2)

.......................................................................... 2, 4, 12
United States Code, Title 42, Sec. 2000e-2(h) . 42
United States Code, Title 42, Sec. 2000e-4 .   36
United States Constitution, Fifth Amemdraent ....... 30
United States Constitution, Eleventh Amendment

.........................................................................11, 57, 58
United States Constitution, Fourteenth Amendment 

.................................................4, 8, 22, 23, 24, 25, 30
United States Constitution, Fourteenth Amendment,

Sec. 5 .........................................................................  22
Voting Rights Act of 1965, Sec. 4 (e) .... ...... .......... . 22

Textbooks
Bernstein, M. and U. Williams, “Title VII and the 

Problems of Sex Classifications in Pension Pro­
grams,” 74 Col. L. Rev., p. 1218 ............ ......  51

Bureau of Economics, Federal Trade Commission, 
Price Variability in the Automobile Insurance 
Market (Dep’t of Transportation, Automobile In­
surance and Compensation Study, 1970), p. 255.. 19

Gold, M., “Equality of Opportunity in Retirement 
Funds,” 9 Loyola L. Rev. 596, 602 (1976) ...... 51

viii.

Page

180



IX.

Jordan, C. W., Life Contingencies (Transactions 
of the Society of Actuaries 1975), p. 57 ............  18

Martin, G., “Gender Discrimination in Pension 
Plans,” Journal of Risk and Insurance, Vol. 
XLIII, No. 2 (June 1976), pp. 203-214 ............  20

Note, Developments in the Law: Employment Dis­
crimination in Title VII of the Civil Rights Act 
of 1964, 84 Harvard Law Review, pp. 1109, 
1173, 1174 ..........................................................19, 51

Note, Sex Discrimination and Sex-Based Mortality 
Tables, 53 B. U. Law Review (1973), p. 624, 
n. 2 ...........................................................................  33

Wage and Hour Manual, 95:607 (BNA 1964) ........ 43
Wynn, S., World Trends In Life Insurance (John 

Wiley & Sons 1975), pp. 42-43 .......................17, 18

Page

181





IN THE

Supreme Court of the United States
October Term, 1977 

No. 76-1810

C i t y  o f  L o s  A n g e l e s , et al.,

vs.
M a r i e  M a n  h a r t , et al.,

Petitioners,

Respondents.

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

BRIEF FOR RESPONDENTS.

QUESTION PRESENTED.

The question presented in this case is whether a 
retirement plan which requires women employees to 
contribute from their wages nearly 15% more than 
similarly situated male employees because of the longer 
average life expectancy of women violates the Civil 
Rights Act of 1964, Title VII, as amended by the 
Equal Employment Opportunity Act of 1972, 42 
U.S.C. S2000e-2.

183



STATEMENT OF THE CASE.

A. Nature of the Case.

This is a class suit by female employees of the 
Los Angeles Department of Water and Power ( “Water 
and Power”) who are participating, or who have partici­
pated, in the Water and Power Employees’ Retirement, 
Disability and Death Benefit Insurance Plan (“Pension 
Plan” or “Plan”). Respondents are contending that 
the Plan’s use of sex-segregated mortality tables to 
determine employee contribution rates violated various 
federal statutes, including Title VII of the Civil Rights 
Act of 1964, as amended (42 U.S.C. §§2000e-2(a) (1), 
(2 )) , and the United States and California Constitu­
tions. Suit was brought on September 26, 1973 against 
Water and Power, Members of the Board of Water 
and Power Commissioners (“Commissioners”) and 
Members of the Board of Administration of Water 
and Power’s Plan (“Plan Administrators”) (R. I ) .1

Because the Plan’s tables purported to show that 
women as a class live longer than men, Water and 
Power required its female employees to contribute 
approximately 15% more to the Plan than their 
male counterparts to receive the same benefits. Accord­
ingly, Respondents sought an injunction ordering Peti­
tioners to equalize male and female contribution rates 
under the Plan and to grant class members restitution 
of money they were illegally forced to contribute to 
the Plan in excess of contributions made by similarly 
situated male employees (R. 18).

The District Court permanently enjoined Petitioners 
under Title VII from requiring female Water and Power 
employees to make larger contributions to the Plan 184

— 2 —

184 i“R” refers to the record on appeal in this case.



— 3—-

than their male counterparts. The Court further award­
ed class members a refund of illegally required contri­
butions made on and after April 5, 1972 (R. 369).2 
The Court of Appeals affirmed this decision and denied 
defendants a rehearing in banc.

B. History of the Case.
Respondents Mayshack, Stoop, Muller and Lehman 

are female employees of Water and Power. Respondent 
Manhart, also a female, is a former employee of Water 
and Power, now retired. The Committee to Protect 
Women’s Retirement Benefits is an association of female 
supervisory employees of Water and Power. The In­
ternational Brotherhood of Electrical Workers, Local 
Union No. 18 (“IBEW”) is an unincorporated labor 
organization whose members include certain women 
employed by Water and Power (R. 12-15).

Water and Power employs or has employed approxi­
mately 2,500 women who are participating or have 
participated in its Plan (R. 12). The Plan Administra­
tors administer the Plan and the Commissioners have 
final responsibility for making decisions concerning 
operation of the Plan (R. 15-16). Water and Power 
is required to maintain the Plan for its employees 
under Los Angeles City Charter, Section 220.1.

Water and Power’s Plan is contributory, i.e., it is 
funded in part by employee contributions, and partici­
pation is mandatory for all Water and Power employees 
(R. 173). The Plan used sex-segregated mortality tables 
to determine employee contribution rates. Because these

2On April 5, 1972, the Equal Employment Opportunity Com­
mission issued guidelines prohibiting contribution rate differen­
tials based on sex in employee benefit plans. 29 C.F.R. 1604.9 
(b), (e), (f). See infra.



4—

tables purport to show that women as a class live 
longer than men, women are required to contribute 
14.84% more to the Plan than male employees 
entering the Plan at the same age (R. 173, 311- 
312). Thus, for example, Ms. Manhart paid over 
$5,000 more to the Plan from 1950 to her retirement 
than her male counterpart (R. 176).

Money contributed to the Plan is required by Los 
Angeles City Charter, Section 220.1(f) to “be kept 
separate and apart from all other money on deposit 
with the City Treasurer.” Water and Power’s chief 
accounting employee (who is also the chief accounting 
employee for the Plan Administrators) is the only 
person authorized to withdraw money from the Plan.

IBEW, on or about June 5, 1973, filed a charge 
with the Equal Employment Opportunity Commission 
(“EEOC”) alleging that Water and Power’s Plan dis­
criminated against female Water and Power employees 
because it required them to contribute more to the 
Plan than their male counterparts. The United States 
Department of Justice issued Respondents a Notice 
of Right to Sue letter on or about September 17, 
1973 (R. 12). Respondents filed their complaint in 
Federal Court on September 26, 1973.

Respondents alleged in their complaint that Water 
and Power’s use of sex-segregated mortality tables to 
determine employee contribution rates to the Plan vio­
lated Title VII of the Civil Rights Act of 1964, as 
amended (42 U.S.C. §2000e-2(a) (1), (2 )), the Civil 
Rights Act of 1871 (42 U.S.C. §1983), the Fourteenth 
Amendment to the United States Constitution, and 
Article I, Sections 1 and 21 of the California Consti­
tution (Section 21 is now embodied in Section 7 (d ))

186



—-5—

(R. 13). Jurisdiction is asserted under 28 U.S.C. 
§§1331, 1343(3), 1343(4), 2201 and 2202. The 
amount in controversy exceeds $10,000 (R. 12).

On January 15, 1975, the District Court issued 
a preliminary injunction prohibiting Water and Power 
from requiring larger contributions to the Plan from 
individual female employees than from similarly situated 
individual male employees. After an analysis of existing 
case law and other authorities, the Court held that 
“sexual discrimination under Section 703(a)(1 ) [42 
U.S.C. §2000e-2(a) (1) ] exists whenever general fact 
characteristics of a sex-defined class are automatically 
applied to an individual within that class.” It concluded 
that Water and Power violated Title VII “by applying 
the general actuarial characteristic of female longevity 
to individual female employees who in reality may 
or may not outlive individual male employees.” (R. 
323).

On December 26, 1974, while the Court’s opinion 
was in draft form, Petitioners notified the Court that 
they “had adopted a resolution on December 23, 1974, 
equalizing male and female contributions to the Retire­
ment Plan.” (R. 326). The resolution was effective 
January 1, 1975. Also effective on and after January 
1, 1975, the California Legislature in Government 
Code, Section 7500 made it unlawful for a municipal 
pension and retirement system to require greater con­
tributions from employees of one sex than from employ­
ees of another sex who are the same age.

The District Court issued a permanent injunction 
on June 20, 1975, enjoining Water and Power from 
requiring female employees to make larger contributions 
to the Plan than their male counterparts. The Court

187



6-

also ordered Water and Power to refund to class mem­
bers, with 7% interest, contributions female em­
ployees were required to make to the Plan in excess 
of contributions required from similarly situated male 
employees on and after April 5, 1972 (R. 369). On 
April 5, 1972, the EEOC issued guidelines prohibiting 
contribution rate differentials based on sex in employee 
benefit plans;1

The Court of Appeals affirmed the judgment of 
the District Court with respect to Respondents’ cause 
of action under Title VII on November 23, 1976. 
On December 7, 1976, Petitioners filed a Petition 
for Rehearing and Suggestion that Rehearing be In 
Banc. That same day, this Court decided General Elec­
tric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct. 401 
(1976). The Court of Appeals, following a second 
analysis of the instant action, found that Gilbert did 
not require a change in its judgment and denied Peti­
tioners’ Petition on April 18, 1977. The Court found 
that the mortality tables used by Water and Power 
were explicitly sex-based and discriminated against wo­
men in violation of Title VII. It stated:

“A greater amount is deducted from the wages 
of every woman employee than from the wages 
of every man employee whose rate of pay is

8The District Court earlier dismissed Respondents’ cause of 
action under 42 U.S.C. §1983 on the ground that the Com­
missioners and Plan Administrators in their official or represen­
tative capacities were not persons within the meaning of Section 
1983 (R. 121). This deprived Respondents of the benefit 
of the three-year statute of limitations applicable to Section 
1983 actions and prevented class members from receiving a 
refund of illegally required excess contributions made to the 
Plan between September 26, 1970 and April 5, 1972. The 
Court of Appeals, however, found that this order was interlocu­
tory and refused jurisdiction. Like Respondents’ other causes 
of action, it is still pending before the District Court.



—7

the same. How can it possibly be said that this 
discrimination is not based on sex? It is based 
upon a presumed characteristic of women as a 
whole, longevity, and it disregards every other 
factor that is known to affect longevity. The higher 
contribution is required specifically and only from 
women as distinguished from men. To say that 
the difference is not based on sex is to play 
with words.” 553 F.2d at 593.

On or about June 20, 1977, Petitioners petitioned 
this Court for a Writ of Certiorari directed to the 
Court of Appeals. The Petition was granted on October 
12, 1977.

SUMMARY OF ARGUMENT.

Water and Power used sex-segregated mortality tables 
to determine employee contributions to its Plan. The 
tables, although designed to predict longevity, did not 
use other more relevant factors affecting longevity, 
such as smoking and drinking habits, normality of 
weight, prior medical history and family longevity his­
tory. Because the tables showed that women as a 
class live longer than men, Water and Power required 
its female employees to contribute approximately 15% 
more to the Plan than their male counterparts to receive 
the same benefits. Respondents submit that this practice 
violated Sections 703(a)(1) and (a )(2 )  of the Civil 
Rights Act of 1964, as amended.

There are two tests for establishing a prima facie 
case of employment discrimination under Title VII:
(1) Is the classification discriminatory on its face; 
or, if it is not, (2) is the classification discriminatory 
in its impact? Water and Power’s Plan, without suf­

189



ficient justification, discriminated against women under 
both these tests.

Once a prima facie case of explicit sex-based discrimi­
nation is established, the employer has the burden 
of justifying its classification as a bona fide occupa­
tional qualification (“BFOQ”). The BFOQ defense, 
however, is only available in cases involving discrimina­
tion in hiring. Thus, although Water and Power’s use 
of sex-segregated tables is explicitly sex-based, it is 
not protected from Title VII’s anti-discrimination man­
date under the BFOQ exemption. In any event, even 
if the BFOQ defense could be applied outside the 
scope of hiring, Water and Power’s rationale for using 
sex-segregated tables does not meet the BFOQ test.

The Court has suggested that in some instances 
a Fourteenth Amendment analysis may be helpful in 
determining whether a practice is discriminatory under 
Title VII. Because the instant case involves an explicit 
sex-based classification, however, the threshold deter­
mination that Water and Power’s practice was discrimi­
natory cannot be disputed. A Fourteenth Amendment 
approach also is inapposite to the instant case because 
it would provide greater protection under Title VII 
to blacks than to women, a result clearly not con­
templated by Congress.

Nevertheless, Water and Power’s use of sex-segre­
gated tables also was discriminatory under the Four­
teenth Amendment. In fact, the instant case presents 
an equal protection question considered in a long line 
of Fourteenth Amendment cases invalidating statutes 
which employed gender as an inaccurate substitute 
for other and more relevant bases of classification. 
These .cases have refused to attribute group sex charac-

— 8—

190



9

teristics to individual women (or men) where there 
was a weak congruence between sex and the charac­
teristic or where it would violate the intent of Title 
VII that persons of like qualifications be treated alike.

Water and Power’s Plan also discriminated against 
women in its impact. Because women as a class live 
longer than men, Water and Power required female 
employees to contribute more from their wages than 
similarly situated male employees. The result was 
that these women had less discretionary income to 
provide for themselves and their families and were 
burdened to an extent men were not. For example, 
Marie Manhart contributed over $5,000 more than 
her male counterpart during her employment with Water 
and Power.

Water and Power cannot justify its use of sex-segre­
gated tables as a business necessity. Not only does 
this practice serve no business purpose, but two alter­
native methods of predicting longevity which are not 
based solely on sex are available: the sex-neutral table 
and the multi-factor table. The sex-neutral table pools 
the risk of longevity associated with sex among all 
covered employees in the same manner as other longev­
ity risks already are pooled; the multi-factor table is 
based on a variety of factors which affect longevity.

Water and Power’s use of sex-segregated tables vio­
lated Title VII as interpreted both by the EEOC and 
the Labor Department. The EEOC, established by Con­
gress to enforce the anti-discrimination mandate of 
Title VII, has issued guidelines specifically making 
it an unlawful employment practice for an employer 
to have a pension or retirement plan which differenti­

ates in benefits on the basis of sex.” 29 CFR §1604.9
191



(f). The EEOC applied its guidelines to a case identi­
cal to the instant case and struck down the employer’s 
practice as unlawful.

Title VII is tied to the Equal Pay Act through 
Section 703(h). This section, popularly known as the 
Bennett Amendment, provides that it shall not be an 
unlawful employment practice for an employer to treat 
men and women differently “if such differentiation 
is authorized by the provisions of section 206(d) of 
the Equal Pay Act.” Section 206(d) permits, among 
other things, “a differential based on any other factor 
other than sex. . . .” Section 206(d) ( 1 ) (iv).

The Labor Department has always maintained that 
sex-based wage differentials, to qualify under Section 
206(d) (1) (iv ), must reflect all employment costs and 
not just a selected few. Thus, it has struck down 
wage differentials based on data showing that pension 
and other benefits cost more per hour for women 
than for men. The Labor Department’s position is 
set forth in an Interpretive Bulletin and various other 
rulings.

Senator Humphrey’s remark that the Bennett Amend­
ment was intended to permit differences of treatment 
in industrial benefit plans, including earlier retirement 
options for women, does not support Water and Power 
in the instant case. Viewed in context, Senator Hum­
phrey never intended his remarks to be construed as 
permitting differences in retirement plans that discrimi­
nated against women. To the contrary, Senator Hum­
phrey believed that since Title VII was designed to 
improve the employment status of women, it should 
not be used to undermine existing practices designed 
to achieve that same result. In any event, when Congress

— 10—

192



amended Title VII in 1972 it explicitly adopted existing 
case law which included two decisions invalidating dif­
ferential retirement ages under Title VII.

Respondents are entitled to restitution of the con­
tributions they were illegally required to make to Water 
and Power’s Plan. This remedy is in accord with the 
purpose of Title VII to make persons whole for injuries 
suffered by reason of unlawful employment discrimina­
tion. Neither a good-faith defense nor the doctrine of 
sovereign immunity contained in the Eleventh Amend­
ment can defeat Respondents’ right to a refund of 
these contributions.

— 11—

193



- 1 2 -

ARGUMENT.
THE MORTALITY TABLES USED BY WATER AND  

POWER TO DETERMINE EMPLOYEE CONTRIBU­
TIONS TO ITS PENSION PLAN WERE EXPLICITLY  
SEX-BASED AND DISCRIMINATED AGAINST  
WOMEN IN VIOLATION OF TITLE VII.

Sections 703(a) (1) and (a )(2 )  of Title VII provide: 
“It shall be an unlawful employment practice for 
an employer—

(1) to fail or refuse to hire or to discharge 
any individual, or otherwise to discriminate against 
any individual with respect to his compensation, 
terms, conditions, or privileges of employment, 
because of such individual’s . . . sex; or

(2) to limit, segregate or classify his employees
. . .  in any way which would deprive or tend 
to deprive any individual of employment oppor­
tunities or otherwise adversely affect his status 
as an employee, because of such individual’s . . . 
sex___ ” (42U.S.C. §§2000e-2(a)(1), (2 ).)

The Court, in a consistent line of Title VII cases, 
has set forth two tests for establishing a prima facie 
case of employment discrimination;

(1) Is the classification discriminatory on its face?
Dothard v. Rawlinson, ........ U.S............, 97 S. Ct.
2720 (1977); Phillips v. Martin Marietta Corp., 400 
U.S. 542, 91 S. Ct. 496 (1971); or, if it is not,

(2) Is the classification discriminatory in its im­
pact? Nashville Gas Co. v. Satty, ........ U.S........... ,
........ U.S.L.W...........  (decided December 6, 1977);
Dothard v. Rawlinson, supra.

194



13—

A. Water and Power’s Pension Plan Discriminated 
Against Women on Its Face.

Water and Power, until January 1, 1975, used mor­
tality tables based wholly and explicitly on sex to 
determine employee contributions to its Pension Plan. 
The tables simply divided employees into two groups— 
male and female. Based on this classification, Water 
and Power required women to contribute nearly 15% 
more to the Plan than similarly situated men in order 
to receive the same monthly benefits. For example, 
Marie Manhart and Frances Nouse, two retired em­
ployees, contributed over $5,000 and $6,000 more 
than their male counterparts, respectively, during their 
employment at Water and Power (R. 176).4

Water and Power’s contention that its tables were 
not really based on sex, but rather on longevity, is 
a transparent attempt to avoid the fact that it has 
used an explicitly sex-based classification in violation 
of Section 703(a). Thus, other more relevant factors 
affecting longevity, such as smoking and drinking hab­
its, normality of weight, prior medical history and 
family longevity history, were not used in determining 
contribution rates. The Court of Appeals recognized 
this obvious contradiction and rested its decision on 
the fact that Water and Power’s classification scheme 
was explicitly sex-based:

4During their employment with Water and Power, Manhart 
and Nouse contributed $17,303.75 and $19,323.24, respectively, 
to its Plan. Their male counterparts contributed $12,229.61 
and $13,073.98 for a difference of $5,074.14 and $6,249.26 
(R. 176). The record also reflects that Thelma Clark contributed 
$4,822.69 more than her male counterpart; Geraldine Green 
$5,837.87 more than her counterpart; Joan Roberts $5,396.04 
more than her counterpart; and Mary M. Sullivan $5,963.72 
more than her counterpart (R. 176).

1 9 5



— 14—

“A greater amount is deducted from the wages 
of every woman employee than from the wages 
of every man employee whose rate of pay is 
the same. How can it possibly be said that this 
discrimination is not based on sex? It is based 
upon a presumed characteristic of women as a 
whole, longevity, and it disregards every other 
factor that is known to affect longevity. The higher 
contribution is required specifically and only from 
women as distinguished from men. To say that 
the difference is not based on sex is to play 
with words.” 553 F.2d at 593.

The Court has considered explicitly sex-based classifi­
cations in only two Title VII cases, Dothard v. Rawlin- 
son, supra, and Phillips v. Martin Marietta Corp., 
400 U.S. 542, 91 S.Ct. 496 (1971). Dothard involved 
various regulations of the Alabama Board of Correc­
tions, one of which prohibited the assignment of women 
correctional counselors to “contact positions” in maxi­
mum security institutions, i.e., positions requiring con­
tinual close physical proximity to inmates. (The other 
regulations at issue in Dothard are discussed infra.) 
In Phillips, a private employer refused to accept em­
ployment applications from women with pre-school age 
children, although it accepted applications from simi­
larly situated men.5

In both Dothard and Phillips, the Court, after expos­
ing the classification schemes as sex-based, placed 
the burden on the employer to justify its use of gender

5The same Title VII principles apply to both public and 
private employers. Dothard v. Rawlinson, .... U.S. at ...., 97 
S.Ct. at 2728, n. 14.



criteria under the BFOQ defense. Likewise, because 
Water and Power’s classification scheme was sex-based, 
it too must justify its practice under Section 703(e). 
This it has not done and cannot do.

The BFOQ defense is found in Section 703(e) of 
Title VII. It provides that:

“It shall not be an unlawful employment practice 
for an employer to hire and employ an employee 
on the basis of . . . sex . . .  in those certain 
instances where . . . sex . . .  is a bona fide 
occupational qualification reasonably necessary to 
the normal operation of that particular business 
or enterprise.”

A comparison of Section 703(e) with Section 703(a) 
reveals that the scope of the BFOQ defense does not 
parallel the scope of unlawful conduct. Indeed, Section 
703(a) defines prohibited conduct as broadly as one 
can imagine. It makes it an unlawful employment prac­
tice for an employer “to fail or refuse to hire or 
to discharge any individual, or otherwise to discriminate 
against any individual’' on the basis of sex or “to 
limit, segregate or classify” employees in any way which 
would deprive a person of equal employment opportuni­
ties on the basis of sex.

Section 703(e), on the other hand, is very narrowly 
drafted. It permits the BFOQ defense only when an 
employer “hire [s |” or “employ [sj” an individual be­
cause of his or her sex. The Court in Dothard recog­
nized the inherent limitation of the BFOQ defense 
and adopted “the virtually uniform view of the federal

— 15—

197



16-

courts that Section 703(e) provides only the narrowest 
of exceptions to the general rule requiring equality 
in employment opportunities.” .... U.S. at ...., 97 S.Ct. 
at 2728. It stated:

“We are persuaded—by the restrictive language 
of §703(e), the relevant legislative history, and 
the consistent interpretation of the Equal Em­
ployment Opportunity Commission—that the
BFOQ exception was, in fact, meant to be an 
extremely narrow exception to the general prohibi­
tion of discrimination on the basis of sex.” (Foot­
note omitted.) .... U.S. at ...., 97 S.Ct. at 2727.

The Dothard Court quoted with approval the formula­
tion of the BFOQ defense set forth in Diaz v. Pan 
American World Airways, 442 F.2d 385 (5th Cir. 
1971). This formulation, which extends only to hiring 
practices, admonishes that:

“ [Discrimination based on sex is valid only when 
the essence of the business operation would be 
undermined by not hiring members of one sex 
exclusively.” (Emphasis in original.) 442 F.2d 
at 388.

Water and Power’s use of sex-segregated tables to 
determine employee contributions to its Pension Plan 
does not impact on hiring practices nor are the tables 
even remotely related to the essence of Water and 
Power’s business operation, i.e., to provide water and 
power to residents of the City of Los Angeles. In 
any event, as the Court of Appeals stated:

“Even if it could be said that the relevant business 
function here involved is that of providing em­
ployees with a stable and secure pension program, 
there is no showing that sexual discrimination

198



— 17—

is necessary to protect the essence of that function. 
Actuarial distinctions arguably enhance the ability 
of the employer and pension administrators to 
predict costs and benefits, but it cannot be said 
that providing a financially sound pension plan 
requires an actuarial classification based wholly 
on sex.” (Emphasis added.) 553 F.2d at 587.

The Court of Appeals suggested as an alternative 
mortality tables that reflect a variety of factors affecting 
longevity. Since it is axiomatic that the more compre­
hensive the data, the more reliable the prediction, Water 
and Power cannot complain that the fiscal integrity 
of its Plan would be threatened. Mortality tables based 
on other criteria such as smoking and drinking habits, 
normality of weight, prior medical history and family 
longevity history, would more accurately predict longev­
ity and enable Water and Power to more intelligently 
fund its pension system.

A second alternative available to Water and Power, 
if the multi-factor table proves administratively unfea­
sible, is the sex-neutral table. This table pools the risk 
of longevity associated with sex in the same manner 
as Water and Power’s tables now pool the risk of 
longevity associated with factors other than sex. For 
example, although it can be predicted that as a class 
non-smokers outlive smokers, the risk of longevity as­
sociated with non-smokers is distributed over all mem­
bers of the covered group. Indeed, this is the very 
nature of group insurance. As stated in World Trends 
In Life Insurance:

“Group schemes reduce the importance of mortal­
ity tables in the calculation of premiums. For 
large schemes containing thousands of people a

199



18-

very approximate knowledge of ages is adequate. It 
can suffice to know that the group is not noticeably 
ageing and that there are a reasonable number 
of new entrants in the lower age groups. As the 
size of the group increases the previous claims 
experience becomes more important than mortality 
assumptions based on mortality tables.” S. Wynn, 
World Trends In Life Insurance at pages 42- 
43 (John Wiley & Sons 1975).6

The issue in the instant case, therefore, is what 
risks Water and Power ought to be required to pool 
in order to determine longevity. The resolution of this 
issue, however, cannot be determined solely by reference 
to actuarial facts. Certain classifications which may 
be feasible from an actuarial standpoint may be barred 
for reasons of social policy. Thus, as pointed out on 
page 11 of the Amicus Brief of the Society of Actuaries 
and the American Academy of Actuaries, “black per­
sons exhibit shorter longevity than white persons, but 
they are not charged a lower amount when they pur­
chase annuities or a higher amount when they purchase 
life insurance.”7 When Congress enacted Title VII, 
it declared that “persons of like qualifications be given

^Mortality tables and claims experience are not the only 
elements used to determine the fiscal soundness of a pension 
plan. Thus, the assumed rate of return on investments is equally 
important in computing the present value of the fund. It is 
axiomatic that an increase in mortality rates can be offset 
by a like increase in the assumed rate of interest. C. W. 
Jordan, Life Contingencies at page 57 (Transactions of the 
Society of Actuaries 1975). Thus, an increase of 15% in mortal­
ity rates can be compensated for by a 15% increase above the 
present assumed rate of return.

7The “unfairness and questionable constitutionality” of this 
kind of classification was stated in Craig y. Boren, 427 U.S. 
190, 208, n. 22, 97 S.Ct. 451, 463, where the Court commented 
on the statistical relationship between alcohol abuse and certain 

2 oo racial and ethnic minorities.



1 9

employment opportunities irrespective of their sex.” 
Phillips v. Martin Marietta Corp., 400 U.S. at 544, 
91 S. Ct. at 497-498. By making this determination, 
it foreclosed the actuarial option of using sex as an 
indicator of longevity if that would deny a woman 
the same employment benefits as a similarly situated 
man because of her sex.

Longevity is not the only characteristic associated 
with sex. For example, automobile insurance statistics 
show that women are safer drivers than men. See, 
e.g., Bureau of Economics, Federal Trade Commission, 
Price Variability in the Automobile Insurance Market 
255 (Dep’t of Transportation, Automobile Insurance 
and Compensation Study, 1970). However, as one com­
mentator stated:

“ [A] trucking company could not refuse to hire 
men on the theory that they are, on the whole, 
less safe drivers. A ban on sex discrimination 
must mean that attributes of one sex cannot be 
used to burden any single employee who may 
not share that attribute. Since some men are safe 
drivers, and some women are not, this type of 
policy constitutes explicit sex discrimination. The 
employer is not, strictly speaking, hiring only safe 
drivers; he is hiring only women safe drivers.” 
Note Developments in the Law: Employment Dis­
crimination in Title VII of the Civil Rights Act 
of 1964, 84 Harv. L. Rev., 1109, 1174.

The inequity of using sex-segregated tables to de­
termine longevity is highlighted by the fact that nearly 
five out of six women share common death ages with 
their male counterparts:

“The great majority of men and women— 84 per 
cent—share common death ages. That is, for every 201



■20-

woman who dies at 81 there is a corresponding 
man who dies at 81. The remaining 16 per cent 
are women who live longer than the majority 
and men who live shorter. As a result, each woman 
is penalized because a few women live longer 
and each man benefits because a few men die 
earlier.” Henderson v. Oregon, 405 F. Supp. 1271, 
1277, n.5, appeal docketed, No. 76-1706 (9th Cir., 
March 30, 1976).8

What Water and Power has done, therefore, is to 
spread the risk of longevity associated with every sixth 
woman among a class comprised solely of women, 
84% of whom will die at the same age as their 
male counterparts. Thus, out of a class of 1,000 males 
and 1,000 similarly situated females, 840 men and 
women will die at the same age. Nevertheless, these 
840 women are penalized by the 160 women who 
are blessed with longevity and, equally important, these 
840 men will receive a windfall.9 Water and Power’s

8There is no evidence before the Court concerning the 
common death ages of men and women. However, two courts, 
a Federal District Court in Oregon and the Indiana State 
Supreme Court, respectively found that 84% and 82.9% of 
men and women live to the same age. Henderson v. Oregon, 
supra, and Reilly v. Robertson, 360 N.E.2d 171 (1977). An 
explanation of this overlap in death ages appears in G. Martin, 
“Gender Discrimination in Pension Plans,” Journal of Risk and 
Insurance, Vol. XLIII, No. 2, at pages 203-214 (June 1976). 
Respondents respectfully request that the Court take judicial 
notice of this fact pursuant to Rule 201 of the Federal Rules 
of Evidence.

“The suggestion of TIAA-CREF on page 25, note ** 
of its Amicus Brief that pairing ma’e and female death ages 
“establishes nothing more than any two groups in different risk 
classifications may be ‘overlapped’ ” is not helpful in the instant 
case. The simple fact, not disputed by TIAA-CREF, is that 
84% of men and women share common death ages. Since 
the present action concerns the use of sex-segregated tables 
to determine the life span of groups of individuals, any other 

202 pairing, e.g., according to the order in which each person



■21

position is that since it is impossible to predict when 
a particular individual will die, it will penalize only 
women because as a class they live longer than men.

The feasibility of sex-neutral tables has been aptly 
demonstrated by Water and Power’s own experience 
during the nearly three years it has operated under 
such tables. Thus, there is nothing in the record, nor 
has Water and Power sought to augment the record, 
to support the doomsday predictions of financial ruin 
contained in its Brief. In fact, Water and Power’s 
pension system is running smoothly without the use 
of sex-segregated tables and it will continue to do 
so regardless of the Court’s decision. Effective on and 
after January 1, 1975, the California Legislature in 
Government Code, Section 7500 made it unlawful for 
a municipal pension and retirement system to require 
“employees of one sex to pay greater contributions 
than those of another sex who are the same age.”10
dies, is of no value. That a similar overlap of death ages 
occurs between a group of women aged 65 and a group of 
women aged 60 also is inapposite. The Age Discrimination 
Act ot 1967 specifically excludes retirement plans (29 U S C  
§623(h) (2)).

10The Amicus Brief of the Society of Actuaries and the 
American Academy of Actuaries refutes the claim of other 
amici that a decision affirming the Court of Appeals would 
cause financial problems for other pension plans across the 
nation. At page 18, it states that:

Most defined benefit plans are noncontributory, but 
a substantial minority requires employee contributions. Em­
ployee contributions are almost always—unlike the plan 
in the case at bar—unrelated to age or sex. To the 
extent that employee contributions are related to age or 
sex, they are found in plans adopted by governmental 
bodies and not by private institutions. . . .

“Since defined benefit plans which provide for different 
contribution rates for male and female employees are ex­
ceedingly rare, there would not be a widespread effect 
it equal employee contribution rates were to be required 
m the case at bar.”

203



— 2 2 -

Water and Power has not attacked this statute in 
Court.

In sum, the BFOQ defense is not available to Water 
and Power in the case at bench. Under Title VII 
principles, its use of sex-segregated tables was unlawful.

The Court in General Electric Co. v. Gilbert, supra, 
suggested, because of the similarities between the lan­
guage used by Congress in Title VII and in various 
decisions construing the Equal Protection Clause of 
the Fourteenth Amendment, “that the latter are a useful 
starting point in interpreting the former.” 429 U.S. 
at 133, 97 S. Ct. at 407.11 This comparison was

n The argument advanced by Water and Power that Congress’ 
enforcement powers under Section 5 of the Fourteenth Amend­
ment may not go beyond judicial standards construing the 
Amendment was disposed of in Katzenbach v. Morgan, 384 U.S. 
641, 86 S.Ct. 1717 (1966). In upholding Section 4(e) of 
the Voting Rights Act of 1965, which invalidated literacy re­
quirements affecting the right of certain Puerto Ricans to vote, 
the Court stated:

“The Attorney General of the State of New York argues 
that an exercise of congressional power under §5 of the 
Fourteenth Amendment that prohibits the enforcement of 
a state law can only be sustained if the judicial branch 
determines that the state law is prohibited by the provisions 
of the Amendment that Congress sought to enforce. More 
specifically, he urges that §4(e) cannot be sustained as 
appropriate legislation to enforce the Equal Protection 
Clause unless the judiciary decides—even with the guidance 
of a congressional judgment—that the application of the 
English literacy requirement prohibited by §4(e) is forbid­
den by the Equal Protection Clause itself. We disagree. 
Neither the language nor history of §5 supports such a 
construction.” (Footnote omitted.) 384 U.S. at 648, 86 
S.Ct. at 1722.

The Court went on to hold that under Section 5 Congress 
has the power to pass all laws appropriate to enforce the 
prohibitions of the Amendment. Any other rule, the Court 
said, “would depreciate both congressional resourcefulness and 
congressional responsibility for implementing the Amendment.” 
(Footnote omitted.) Id. See also Oregon v. Mitchell, 400 U.S. 
112, 91 S.Ct. at 260 (1970). Title VII is appropriate to 
enforce the anti-discrimination mandate of the Fourteenth

204



-23-

helpful in Gilbert for a significant reason that is inap­
plicable to the instant case. Since the classification 
in Gilbert did not discriminate against women on its 
face, the Court first had to determine the threshold 
question of whether General Electric’s policy was dis­
criminatory in its impact. Thus, it turned to its earlier 
decision in Geduldig v. Aiello, 417 U.S. 484, 94 S. 
Ct. at 2485 (1974), where it had considered an identi­
cal claim under the Fourteenth Amendment, to ascer­
tain “what the concept of discrimination has traditional­
ly meant.” 429 U.S. at 145, 97 S. Ct. at 412.* 12 
However, the Court was very careful to point out 
that “there is no necessary inference that Congress, 
in choosing this language [of Section 7 0 3 (a)(1 )], in­
tended to incorporate into Title VII the concepts of 
discrimination which evolved from Court decisions con­
struing the Equal Protection Clause of the Fourteenth 
Amendment.” Id. at 133, 97 S. Ct. at 407.

The instant case, unlike Gilbert, concerns explicit 
sex discrimination rather than disparate impact. The 
fact that Water and Power’s use of sex-segregated tables 
discriminates against women cannot be disputed. The 
real controversy is whether Water and Power can justify

Amendment in the employment arena. Because of the multiplicity 
of employment practices which, although facially neutral, dis­
criminate against women, see, e.g., Griggs v. Duke Power Co.,
401 U.S. 424, 91 S.Ct. 849 (1971), an interpretation of Title 
VII which requires a showing of discriminatory intent would 
render it virtually meaningless.

12The Court in Gilbert, quoting from Geduldig, agreed that 
“ [t]he program divides potential recipients into two groups— 
pregnant women and non-pregnant persons.” 429 U.S. at 135,
97 S.Ct. at 407. The Court concluded that “the quoted language 
from Geduldig leaves no doubt that our reason for rejecting 
appellee’s equal protection claim in that case was that the 
exclusion of pregnancy from coverage under California’s dis­
ability benefits plan was not in itself discrimination based on 
sex." (Emphasis added.) Id. 205



■24—

its use of these tables under the BFOQ defense. In 
short, the rationale used to connect Gilbert with Ged- 
uldig cannot be used to connect the instant case with 
cases decided under the Fourteenth Amendment.

A Fourteenth Amendment approach also is inappro­
priate for another reason: The judicial standard of 
scrutiny under the Equal Protection Clause is closer 
for blacks than for women. Compare Loving v. Vir­
ginia, 388 U.S. 1, 87 S. Ct. 1817 (1967) with Craig 
v. Boren, supra. Title VII, however, except for the 
BFOQ exception, does not distinguish between these 
two protected groups. Thus, under a Fourteenth Amend­
ment analysis, women would be placed in the anomalous 
position of receiving less protection under Title VII 
than blacks, a result clearly not contemplated by Con­
gress when it enacted Title VII.

For these reasons, Respondents submit that resort 
tb the Fourteenth Amendment would not be helpful 
in the instant case. Nevertheless, because Water and 
Power’s practice was so arbitrarily discriminatory and 
without justification, it cannot be validated under any 
test, constitutional or statutory. With this caveat, Re­
spondents submit the following Fourteenth Amendment 
analysis as an additional rationale for striking down 
Water and Power’s practice as discriminatory.

Water and Power relied solely on sex, as an inac­
curate substitute for length of life, to determine em­
ployee pension plan contributions and ignored other 
more relevant factors affecting longevity. Some of these 
were mentioned by the Court of Appeals, i.e., smoking 
and drinking habits, normality of weight, prior medical 
history and family longevity history. Viewed in this 
light the instant case presents an equal protection ques-

206



— 25

tion considered in a long line of Fourteenth Amendment 
cases invalidating statutes which employed gender as 
an inaccurate substitute for other and more relevant 
bases of classification. Califano v. Goldfarb, 430 U.S. 
198, 97 S. Ct. 1021 (1977); Craig v. Boren, 429 
U.S. 190, 97 S. Ct. 451 (1976); Weinberger v. Wisen- 
feld, 420 U.S. 636, 95 S. Ct. 1225 (1975); Frontiero 
v. Richardson, 411 U.S. 677, 93 S. Ct. 1764 (1973); 
and Reed v. Reed, 404 U.S. 71, 92 S. Ct. 251 (1971).

In Reed, the Court considered a statute providing 
that where two persons were otherwise equally entitled 
to appointment as administrator of an estate, the male 
applicant must be preferred to the female applicant. 
The assumption underlying this preference was that 
men as a rule are more conversant with business affairs 
than women and therefore, all other factors being equal, 
would make better administrators. The statutory 
objective was to eliminate contests in order to reduce 
the workload on probate courts and minimize intra­
family conflict.

The Court in Reed recognized that the state’s interest 
in achieving administrative efficiency “is not without 
some legitimacy.” Nevertheless, it concluded that “[t]o 
give a mandatory preference to members of either 
sex over members of the other, merely to accomplish 
the elimination of hearings on the merits, is to make 
the very kind of arbitrary legislative choice forbidden 
by the Equal Protection Clause of the Fourteenth 
Amendment; and whatever may be said as to the 
positive values of avoiding intra-family controversy, 
the choice in this context may not lawfully be mandated 
solely on the basis of sex.” 404 U.S. at 76-77, 92 
S. Ct. at 254.

207



— 26—

Weinberger and Califano involved social security stat­
utes providing benefits to surviving widows with chil­
dren and to widows, respectively, but not to surviving 
widowers with children nor to widowers who received 
less than one-half of their support from their deceased 
wives. The statute in Frontiero granted spousal benefits 
to servicemen but not to servicewomen unless they 
provided more than one-half of their husband’s support.

These statutes each rested on the notion that men 
were more likely than women to be the primary support­
ers of their spouses and/or their children. Although 
the Court in Weinberger found that this assumption 
“is not entirely without empirical support,” 420 U.S. 
at 642, 95 S. Ct. at 1230, it nevertheless struck down 
both statutory schemes. “Benefits,” the Court held, 
“must be distributed according to classifications which 
do not without sufficient justification differentiate 
among covered employees solely on the basis of sex.” Id. 
at 647, 95 S. Ct. at 1238. The statistically valid 
fact that more men than women are family breadwinners 
did not provide this justification.

The statutes at issue in Craig rested on a different 
assumption than in the above cases. At issue was 
an Oklahoma scheme prohibiting the sale of “non­
intoxicating” 3.2% beer to males under the age of 
twenty-one and to females under the age of eighteen. 
The legislative assumption underlying this scheme was 
that males were more prone to “driving under the 
influence” and “drunkenness” than females. 429 U.S. 
at 200, 97 S. Ct. at 458. Although Oklahoma presented 
a flood of statistics to support its disparate treatment 
of men and women, the Court held the statutes uncon­
stitutional. Its decision rested on (1) the normative 
philosophy of the equal protection clause that “classifi­

208



— 2 7 -

cations by gender must serve important governmental 
objectives and must be substantially related to the 
achievement of these objectives,” 429 U.S. at 197, 
97 S. Ct. at 457, and (2) the “weak congruence 
between gender and the characteristic or trait that 
gender purported to represent.” 429 U.S. at 199, 97 
S. Ct. at 458.

The instant case, like the cases cited above, presents 
a situation where, as a matter of administrative conven­
ience and bureaucratic momentum, an explicitly sex- 
based classification was used in place of other more 
accurate and relevant factors for determining longevity. 
Similar to applying sexual stereotypes concerning female 
dependency or overbroad generalizations about male 
drinking and driving habits, Water and Power fell 
back on the broad assumption that women live longer 
than men. Admittedly, this assumption “is not entirely 
without empirical support.” Weinberger v. Wisenfeld, 
420 U.S. at 647, 95 S. Ct. at 1233. However, because 
over 80% of men and women share common death 
ages, the congruence between an individual’s life span 
and sex is weak. Moreover, Water and Power’s use 
of this solely sex-based criterion to charge female em­
ployees more for pension benefits equal to those 
of male employees neither serves “important govern­
mental objectives” nor is “substantially related to 
the achievement of those objectives.” Id. at 197, 97 
S. Ct. at 457.

The primary purpose of Water and Power’s Plan 
is to provide employees with a monthly income typically 
used to satisfy short-term daily needs arising during 
retirement. Although the Plan provides the same benefits 
to male and female retirees, it charged female em­
ployees approximately 15% more for these benefits

209



— 2 8 —

than male employees. Because this cost differential 
could be used by males to purchase additional retirement 
insurance, they were better protected against the vicis­
situdes of retired life than females. The magnitude 
of retirees’ needs, however, does not correspond in 
any meaningful way with one sex or the other. See 
Califano v. Goldfarb, supra.

A second purpose of Water and Power’s Plan is 
to provide an incentive for qualified job applicants 
to choose employment with, and remain at, Water 
and Power. Thus, the plan does not have its first 
effect when a participant becomes eligible to retire, 
but it begins to operate when he or she first accepts 
employment with Water and Power. The possibility 
that qualified male job applicants were encouraged 
to accept employment with, or dissuaded from leaving, 
Water and Power because of the differential treatment 
afforded them by its Pension Plan, at the very least, 
is speculative and remote.

Water and Power’s Plan differs significantly from 
the disability plan considered by the Court in General 
Electric Co. v. Gilbert. Unlike Water and Power’s 
Plan, the program in Gilbert was not discriminatory 
on its face, but merely excluded from coverage disabili­
ties associated with pregnancy which is “an objectively 
identifiable physical condition with unique character­
istics.” 429 U.S. at 134, 97 S. Ct. at 407. Thus, 
the Court emphasized that:

“ ‘The lack of identity between the excluded dis­
ability and gender as such under this insurance 
program becomes clear upon the most cursory 
analysis. The program divides potential recipients 
into two groups—pregnant women and non­
pregnant persons. While the first group is exclu­

210



•29—

sively female, the second includes members of 
both sexes.’ [Geduldig v. Aiello,] 417 U.S. at 
496-497, n. 20.” 429 U.S. at 135, 97 S. Ct. 
at 407.

Water and Power’s Plan also divides potential recip­
ients into two groups—men and women. This classifi­
cation, however, is solely sex-based. The first group 
is exclusively male and the second group is exclusively 
female. This is a far cry from the disability plan 
in Gilbert and it is just the kind of sex-based classi­
fication that the Court struck down as unconstitu­
tional in Califano v. Goldfarb, Craig v. Boren, Weinber­
ger v. Wisenfeld, and Frontiero v. Richardson. See 
General Electric Co. v. Gilbert, 429 U.S. at 134, 
97 S. Ct. at 407.

B. Water and Power’s Pension Plan Imposed on 
Women a Substantial Burden That Men Were Not 
Required to Bear.

A prima facie violation of Title VII can be estab­
lished with respect to a classification which is facially 
neutral if the classification significantly diminishes the 
employment opportunities of one sex or another, i.e., 
if the employment policy has a “gender-based effect.” 
Gilbert v. General Electric Co., 429 U.S. at 137, 
97 S.Ct. at 409. In Nashville Gas Co. v. Satty, ....
U-S......, .... U.S.L.W......  (decided December 6, 1977),
the Court held that a gender-based effect could be 
shown if a facially neutral classification scheme burdens 
one sex and not the other. Slip Opinion at page 5. 
Thus, even if Water and Power’s classification scheme 
was based on longevity (which it was not), that fact 
standing alone does not insulate it from Title VII 
liability. For, as we shall demonstrate, Water and Pow­

211



•30—

er’s use of sex-segregated tables significantly burdened 
its female employees by requiring them to pay nearly 
15% more to the Plan than their male counterparts 
in order to receive the same monthly retirement benefits.

Before discussing the disparate impact of Water and 
Power’s tables on women, two principles must be ob­
served: First, a prima facie violation of Title VII can 
be established “even absent proof of intent” if the 
effect of the practice is to discriminate on the basis 
of sex or other impermissible classifications. Griggs 
v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 
849, 853 (1971). Second, under Title VII, as con­
trasted with the Equal Protection Clauses of the Fifth 
and Fourteenth Amendments, judicial inquiry in dis­
parate impact cases “involves a more probing judicial 
review of, and less deference to, seemingly reasonable 
acts of administrators and executives than is appropriate 
under the Constitution. . . Washington v. Davis, 
426 U.S. 229, 247, 96 S.Ct. 2040, 2051 (1976).

In Satty, the issue was whether an employer could 
deny accumulated seniority and sick leave benefits to 
pregnant women on leave. The Court held that the 
question presented with respect to sick leave benefits 
was indistinguishable from the question decided in Gil­
bert. It found that the denial of these benefits to 
women was merely a refusal to extend to them a 
benefit that men cannot and do not receive. However, 
with respect to accumulated seniority, the Court held 
that the employer “imposed on women a substantial 
burden that men need not suffer.” Slip Opinion at 
page 5.

Likewise, in the instant case, Water and Power, 
by charging women 15% more than men to receive

212



— 3 1 —

the same monthly pension benefits, diminished the abil­
ity of working women to provide for themselves and 
their families. For example, as stated above, Marie 
Manhart and Frances Nouse were forced to contribute 
to Water and Power’s Plan over $5,000 and $6,000, 
respectively, more than their male counterparts. This 
loss of income was especially damaging to women 
like Carolyn Mayshack who was the sole provider for 
her two young children (R. 61).

The Court adopted an alternate approach in Dothard 
v. Rawlinson, supra. The issue in Dothard, in addition 
to that discussed above, was whether the Alabama 
Board of Corrections could set minimum height and 
weight requirements for prison guards which excluded 
41.13% of the female population and less than 1% 
of the male population from employment consideration. 
The Court held the standards involved finding that 
“to establish a prima facie case of discrimination, a 
plaintiff need only show that the facially neutral stand­
ards in question select applicants for hire in a signifi­
cantly discriminatory pattern.” .... U.8. at ...., 97 S.Ct. 
at 2726.

It cannot be disputed that Water and Power’s use 
of sex-segregated tables had a “significantly discrimina­
tory” impact on women. Because women as a class 
live longer than men, each woman was required by 
Water and Power to contribute nearly 15% more to 
its Pension Plan than her male counterpart. It does 
not require exceptional prescience, however, to know 
that not all women outlive all men. In fact, as stated 
above, “the great majority of men and women— 84%— 
share common death ages.” Henderson v. Oregon, supra 
at 1277.

213



- 3 2 -

Water and Power’s use of sex-segregated tables had 
a greater discriminatory effect on women than the 
height and weight regulations held invalid in Dothard. 
Thus, in Dothard, the facially neutral classifications 
used for hiring prison guards impacted on less than 
one-half of the female population. Water and Power’s 
practice, on the other hand, penalized nearly five out 
of six women and, in addition, provided a windfall 
to a like number of men.

There is no available data showing that among work­
ing people females live longer than men. The difficulty 
of defining the relevant class and compiling accurate 
statistics was addressed by Justice Arterburn concurring 
in Reilly v. Robinson, supra:

“ [TJhere is no showing or evidence presented 
by the Appellant [Retirement] Board that women 
teachers live longer than men teachers. There is 
no statistical evidence or mortality table presented 
that shows that in the teaching profession females 
have a longer life span than males.

“I grant that when the population as a whole 
is considered statistics indicate women on the aver­
age live longer lives than men. However, I ascribe 
that result to the common knowledge that tradi­
tionally men engage in more hazardous or stressful 
occupations (such as mining, steel construction) 
while many women are engaged in household ac­
tivities. To me such a fact colors the mortality 
tables comparing men and women.

“We are dealing in this case solely with the 
teaching profession. I’m inclined to believe that 
the stresses, strains and hazards of that profession 
apply alike to the male and female teacher. Until

214



— 3 3 —

there is evidence to the contrary I must conclude 
the mortality rate is the same.” (Emphasis added.) 
360 F.2d at 191.13

Once a prima fade case of disparate impact is estab­
lished, “[t]he touchstone is business necessity.” Griggs 
v. Duke Power Co., 401 U.S. at 431, 91 S.Ct. at 
853. In other words, the discriminatory practice must 
be “necessary to the safe and efficient operation of 
the business.” Robinson v. Lorillard, 444 F.2d 791, 
798 (5th Cir. 1971), cert, denied 404 U.S. 1006
(1971). See Dothard v. Rawlinson, supra, .... U.S. 
at...., 97 S.Ct. at 2728, n. 14.

The Fourth Circuit in Robinson set forth a threefold 
test for determining when to apply the business necessity 
exception: (1) the business purpose of the challenged 
practice must be sufficiently compelling to override 
any discriminatory impact; (2) the challenged prac­
tice must effectively carry out the business purpose 
it is alleged to serve; and (3) there must be available 
no acceptable alternative policies or practices which 
would better accomplish the business purpose advanced 
or accomplish it equally well with lesser discriminatory 
impact. 444 F.2d at 798.

Water and Power’s practice fails the Robinson test 
on all three counts. As stated above, not only does 
Water and Power’s use of sex-segregated tables serve 
no business purpose, but alternative methods of predict­
ing longevity which are not based solely on sex are 
available. These alternatives were discussed above.

13Justice Arterburn’s belief is shared by at least one commen­
tator. In Note, Sex Discrimination and Sex-Based Mortality 
Tables, 53 B. U. L. Rev. 624, n. 2 (1973), the author suggests 
that because women traditionally have not been employed in 
stressful occupations, and because they are now more frequently 
filling these higher-paying positions, the longevity gap will narrow.



— 34—

The first is the sex-neutral table which pools the 
risk of longevity associated with sex in the same manner 
as other longevity risks are pooled. If Water and Power 
still believes that sex is the best identifiable predictor 
of an individual’s life span, it would still be entitled 
to use data based on the male-female mix of Plan 
members to project funding requirements. However, 
contribution rates would be the same for both sexes. 
The sex-neutral table is suggested by various commenta­
tors as the best means of complying with Title VIPs 
anti-discrimination mandate. See, e.g., Note, Develop­
ments in the Law: Employment Discrimination in Title 
VII of the Civil Rights Act of 1964, supra at page 
1173.

The second alternative is for Water and Power to 
use a multi-factor table. As stated above, this table 
is based on a variety of factors affecting longevity, 
such as smoking and drinking habits, normality of 
weight, prior medical history and family longevity his­
tory. This method, which was mentioned by the Court 
of Appeals, not only has a markedly less discriminatory 
impact on women, but more accurately predicts longev­
ity than sex-segregated tables. Although the initial 
switch to the multi-factor table may be inconvenient, 
Title VII, like the Constitution, should recognize 
“higher values than speed and efficiency.” Stanley v. 
Illinois, 405 U.S. 645, 656, 92 S. Ct. 1208, 1215
(1972).

TIAA-CREF, at pages 26-27 of its Amicus Brief, 
claims that if the Court requires equal contribution 
rates, men will be forced to subsidize women and 
will, therefore, opt out of the Plan in order to buy 
benefits at a lower cost. This in turn, it argues, will

216



- 35-

result in higher pension costs for those persons that 
remain in the Plan. TIAA-CREF’s scenario, however, 
is inapposite to the instant case for several reasons. 
The most obvious reason is that Water and Power’s 
Plan is mandatory, that is, participants are not permitted 
to opt out of the Plan. Moreover, it is misleading 
to state that under sex-neutral tables men subsidize 
women. In fact, as we have seen, nearly five out 
of six women share common death ages with their 
male counterparts. Thus, rather than charging all 
women for the longevity associated with one woman 
in six, a requirement of equal contributions would 
spread this risk over the entire group. This, of course, 
is no different than the present situation where, for 
example, non-smokers are subsidizing smokers and it 
typifies the manner in which group insurance plans 
work.

Nothing in the Court’s decision in Satty or Gilbert 
compels acceptance of Water and Power’s practice in 
the instant case. In the pregnancy cases, the employer 
merely refused to extend to women a benefit that 
men could not and did not receive, i.e., sick leave 
benefits for pregnancy in Satty and disability benefits 
for pregnancy in Gilbert. In the case at bench, there 
exists an entirely different situation. Longevity, unlike 
pregnancy, is a characteristic by no means unique 
to women. Thus, while some men live longer than 
some women (and some men are better drivers than 
some women), no man can become pregnant.

217



- 36-

w a t e r  AND POWER’S USE OF SEX-SEGREGATED  
TABLES VIOLATES TITLE VII AS INTERPRETED  
BOTH BY THE EEOC AND THE DEPARTM ENT OF 
LABOR.

A. EEOC Guidelines Forbid Employers From Requir­
ing Female Employees to Pay More for Pension 
Benefits Than Similarly Situated Male Employees.

Congress created the EEOC to enforce the anti- 
discrimination mandate of Title VII (42 U.S.C. §2000 
e-4). Although EEOC rulings, interpretations and opin­
ions are “not controlling upon the courts by reason of 
their authority, [they] do constitute a body of experi­
ence and informed judgment to which courts and liti­
gants may properly resort for guidance,” Skidmore v. 
Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161, 
164 (1944), quoted in Gilbert v. General Electric Co., 
supra, 429 U.S. at 141-142, 97 S. Ct. at 411, and 
are entitled to deference, Griggs v. Duke Power Co., 
401 U.S. at 433-434, 91 S. Ct. at 854-855.

EEOC guidelines provide that “ [i]t shall be an 
unlawful employment practice for an employer to dis­
criminate between men and women with regard to 
fringe benefits.” (29 CFR § 1604.9(b).) Moreover, 
the guidelines categorically assert that “\i]t shall be 
an unlawful employment practice for an employer to 
have a pension or retirement plan . . . which differ­
entiates in benefits on the basis of sex.” (29 CFR 
§1604.9 (f).) The guidelines further prohibit as “a 
defense under Title VII to a charge of sex discrimina­
tion in benefits that the cost of such benefits is greater

218



with respect to one sex than the other.” (29 CFR 
§1604.9(e).)

The EEOC has applied its guideline standards to 
a case identical to the instant case. In rejecting the 
argument that equalizing monthly payments would 
discriminate against men, who as a class would receive 
less because they tend to die sooner, and in favor 
of women, who would receive more because they gen­
erally die later, the EEOC stated:

“. . . The Commission has held that sex-based 
actuarial tables cannot be used by an employer 
to justify paying higher benefits to males than 
to females where contributions by members of 
each sex are the same. Commission Decision Nos. 
[sic] 7[4]-118. An inescapable corollary to this 
principle is that an employer may not require 
a higher contribution from members of one sex 
where benefits to members of both sexes are the 
same.

“. . . Title VII is not, however, concerned with 
whether benefits to each sex group as a class 
are equal—Title VII looks to individual benefits. 
For the individual, the ‘benefit’ provided by a 
retirement plan is not some statistically determined 
‘average total payment’ received by members of 
the same sex, it is ‘a pension of X  dollars per 
month.’ It is this benefit that Title VII requires 
be the same for both males and females.

“The EEOC Guideline relating to retirement 
plans is based upon the fundamental Title VII 
precept that generalizations relating to sex, race, 
religion, and national origin cannot be permitted

—37—

219



— 3 8 —

to influence the terms and. conditions of an indi­
vidual’s employment, even where the generaliza­
tions are statistically valid. It violates Title VII 
for Respondent to require its female employees 
to pay more than similarly situated male employees 
for the same monthly pension.” EEOC Decision 
No. 75-147, CCH EEOC Decisions f6447 at 4191 
(Employment Practices Guide, 1975). (Emphasis 
added.)11

As with the seniority guideline at issue in Satty, 
the EEOC’s 1972 position on pension benefits “is fully 
consistent with past interpretations of Title VII by 
the EEOC.” Nashville Gas Co. v. Satty, Slip Opinion 
at page 6. Thus, it has never issued conflicting interpre­
tations on pension benefits as it did regarding disability 
benefits for pregnancy. Rather, the EEOC’s position 
on pension and retirement plans has become more 
detailed over time reflecting the agency’s thought and 
experience.

The EEOC’s first guidelines on sex discrimination, 
issued in 1965, were narrow in scope and specifically 
addressed only the most blatant forms of sex discrimi­
nation in employment (30 Fed. Reg. 14926-28 (Dec. 
2, 1965)). In the following years, through court cases 
and employee charges of sex discrimination brought 
before it, the EEOC became increasingly aware of 
the variety of more subtle discriminatory practices in 
the area of fringe benefits. As a result, it moved 
toward enunciating a more detailed position on this 
issue. 14

14EEOC Decision No. 74-118, cited by the EEOC in Decision 
No. 75-147, held invalid a plan which required equal male 
and female contributions but which paid fewer benefits to females 
than to males.

220



In 1968, the EEOC first published guidelines directed 
at sex-based discrimination in retirement plans. The 
new guidelines specifically provide that a difference 
in optional or compulsory retirement ages based on 
sex violates Title VII. The guidelines also put employers 
on notice that the EEOC would rule on the validity 
of other sex-based differences in retirement plans, such 
as differences in survivors’ benefits, on a case by case 
basis (33 Fed. Reg. 3344 (Feb. 24, 1968)).

The EEOC issued its present guidelines on sex dis­
crimination in 1972 based on seven years of experience. 
The soundness of these guidelines, and the weight 
to which they are entitled in determining legislative 
intent, should not be diminished simply becasue they are 
the product of thoughtful and conscientious delibera­
tion. Indeed, the EEOC’s decision to gradually detail 
its position is to be expected in an area as complex 
as employment discrimination. The EEOC should be 
commended, not criticized, for its cautious approach.15

In addition to its guidelines, the EEOC has issued 
numerous decisions invalidating both retirement age 16

16The gradual perfection of EEOC guidelines is paralleled 
by Congress’ own experience in the area of employment dis­
crimination. See Senate Committee Report on the Equal Employ­
ment Opportunity Act of 1972:

“In 1964, employment discrimination tended to be viewed 
as a series of isolated and distinguishable events, for the 
most part due to ill-will on the part of some identifiable 
individual or organization. . . . Experience has shown this 
view to be false, [f] Employment discrimination as viewed 
today is a far more complex and pervasive phenomenon. 
Experts familiar with the subject now generally describe 
the problem in terms of ‘systems’ and ‘effects’ rather than 
simply intentional wrongs. . . . fUj In short, the problem 
is one whose resolution in many instances requires not 
only expert assistance, but also the technical perception 
that the problem exists in the first instance, and that 
the system complained of is unlawful. (Senate Report No. 
92-415, 92d Cong., 1st Sess., p. 5.)

- 3 9 -

221



— 4 0 —

and benefit differentials based on sex. The EEOC’s 
earliest position is detailed in Rosen v. Public Service 
Electric & Gas Co., 409 F.2d 775 (3rd Cir. 1969). In 
that case, on January 26, 1966, the EEOC found rea­
sonable cause to believe that a pension plan discrimi­
nated against male employees in violation of Title 
VII. The plan provided that “a male employee taking 
early retirement at age 60, after 30 years service, 
would receive substantially lower pension benefits than 
a female employee retiring at the same age, with the 
same length of service, assuming the same average 
salary.” 409 F.2d at 775. The EEOC also found that 
the plan discriminated against women by forcing them 
to retire five years earlier than men. 409 F.2d at 
775, at note 8.

A steady stream of other EEOC decisions likewise 
have found that sex-based differentials in both re­
tirement benefits and age violated Title VII. See, e.g., 
Case No. YNY 9-034, CCH EEOC Decisions 1)6050 
(6-16-69) (age and benefits for survivors); Case No. 
YNY 9-027, 1 FEP Cases 921 (7-3-69) (age); De­
cision No. 70-45, CCH EEOC Decisions 1)6041, 2 
FEP Cases 166 (7-18-69) (age); Decision No. 70-75, 
CCH EEOC Decisions ^6049, 2 FEP Cases 684 (4-20- 
70) (age); Decision No. 71-562, CCH EEOC Decisions 
f6184, 3 FEP Cases 233 (12-4-70) (age and benefits); 
Decision No. 71-1102, CCH EEOC Decisions 1)6200, 3 
FEP Cases 271 (12-31-70) (age); Decision No. 71- 
1580, 3 FEP Cases 812 (4-8-71) (age and benefits 
for survivors); Decision No. 72-0702, CCH EEOC 
Decisions 1)6320, 4 FEP Cases 316 (12-27-71) (age); 
Decision No. 72-1919, CCH EEOC Decisions 1)6370, 
4 FEP Cases 1163 (6-6-72) (benefits); Decision No. 
74-118, CCH EEOC Decisions f 6431 (4-26-74) (bene­

222



- 41-

fits); Decision No. 75-020, 11 FEP Cases 1496 (9- 
4-74) (benefits); Decision No. 75-147, CCH EEOC 
Decisions f6447, 11 FEP Cases 1486 (1-13-75) (age 
and benefits).

TIAA-CREF at page 42 of its Amicus Brief quotes 
from a 1966 EEOC opinion letter which is contrary 
to the position just described. This letter, however, 
was written during the formative years of EEOC’s 
development and it should not now be used to under­
mine guidelines which are the product of seven years’ 
experience. Needless to say, the 1966 letter, which 
is of no precedential value, is outside the mainstream 
of EEOC’s unfolding position. (The letter is also con­
trary to the EEOC’s earlier stated position in Rosen 
v. Public Service Electric & Gas Co., supra. See discus­
sion above.) As the Court observed in NLRB  v. Seven- 
Up Bottling Co., 344 U.S. 344, 349, 73 S. Ct. 287, 
290 (1953):

“ ‘Cumulative experience’ begets understanding 
and insight by which judgments , . . are validated 
or qualified or invalidated. The constant process 
of trial and error, on a wider and fuller scale 
than a single adversary litigation permits, differen­
tiates perhaps more than anything else the ad­
ministrative from the judicial process.”16

j6TIAA-CREF also points out at pages 41-42 of its Amicus 
Brief that the EEOC in 1965 agreed to apply relevant Labor 
Department interpretations under the Equal Pay Act to Title 
VII in order to harmonize the statutes. (29 CFR §1604.7(b)). 
However, TIAA-CREF omitted from its short quotation of 
§1604.7(b) that the EEOC determined that only 29 CFR 
Parts 800.119 throush 800.163 were, in fact, relevant. Part 
800.116(d), on which TIAA-CREF relies, was not among 
the included sections.

223



— 4 2 —

B. Labor Department Interpretive Bulletins, Like 
EEOC Guidelines, Forbid Employers From Re­
quiring Female Employees to Make Larger Pension 
Contributions Than Similarly Situated Male Em­
ployees.

Section 703(h) of Title VII (42 U.S.C. §2000©- 
2 (h )), popularly known as the Bennett Amendment, 
permits an employer “to differentiate upon the basis 
of sex in determining the amount of the wages or 
compensation paid or to be paid to employees of such 
employer if differentiation is authorized by the provi­
sions of section 206(d) of Title 29.” Section 206(d), 
among other things, permits discrimination based on 
“a differential based on any other factor other than 
sex.”17

Water and Power and various amici have argued 
that the use of sex-segregated mortality tables is valid 
under the Bennett Amendment as based on a “factor 
other than sex,” i.e., longevity. As discussed earlier, 
however, “ [s]ex is exactly what it is based on.” 
Court of Appeals opinion, 553 F.2d at 588. If Water 
and Power’s tables were based on longevity, they would

wSection 6 (d )(1 ) of the Equal Pay Act, 29 U.S.C. §206 
(d )(1 ), provides, in partinent part:

“No employer having employees subject to any provisions 
of this section shall discriminate, within any establishment 
in which such employees are employed, between employees 
on the basis of sex by paying wages to employees in 
such establishment at a rate less than the rate at which 
he pays wages to employees of the opposite sex in such 
establishment for equal work on jobs the performance 
of which requires equal skill, effort, and responsibility, 
and which are performed under similar working conditions, 
except where such payment is made pursuant to (i) a 
seniority system; (ii) a merit system; (iii) a system which 
measures earnings by quantity or quality of production; 
or (iv) a differential based on any other factor other 
than sex. . . .” (Emphasis added.)

224



—43'

have reflected other more relevant factors such as smok­
ing and drinking habits, normality of weight, prior 
medical history and family longevity history.

In interpreting Section 206(d), the Labor Depart­
ment has never sanctioned the practice of requiring 
female employees to make larger pension plan contribu­
tions than their male counterparts. To the contrary, 
it has always maintained that wage differentials based 
on employment cost comparisons must be made on 
an individual and not on a class basis.

The Labor Department first addressed the use of 
sex-based wage differentials in a June 18, 1964 opinion 
letter issued by the Wage and Hour Administrator. 
As in the instant case, the employer was attempting 
to justify an eight cent hourly wage differential between 
its male and female employees based on data showing 
that pension benefits, hospitalization and medical in­
surance, turnover costs and rest period benefits cost 
eight cents more an hour for women than for men. 
(Three cents an hour was attributed to pension costs.) 
The Administrator, however, held that the “factor 
other than sex” exception could not be claimed where 
the employer had analyzed only some but not “all 
of the elements of employment costs” and declared 
the differential invalid. Wage and Hour Manual, 95:607 
(BNA 1964).

This ruling was amplified by the Administrator in 
an Interpretive Bulletin issued February 11, 1966. The 
Bulletin provides that:

“A wage differential based on claimed differences 
between the average cost of employing the em­
ployer’s women workers as a group and the average 
cost of employing the men workers as a group

225



4 4 -

does not qualify as a differential based on any 
‘factor other than sex,’ and would result in a viola­
tion of the equal pay provisions, if the equal 
pay standard otherwise applies. To group em­
ployees solely on the basis of sex for purposes 
of comparison of costs necessarily rests on the 
assumption that the sex factor alone may justify 
the wage differential— an assumption plainly con­
trary to the terms and purpose of the Equal Pay 
Act. Wage differentials so based would serve only 
to perpetuate and promote the very discrimination 
at which the Act is directed, because in any 
grouping by sex of the employees to which the 
cost data relates, the group cost experience is 
necessarily assessed against an individual of one sex 
without regard to whether it costs an employer 
more or less to employ such individual than a 
particular individual of the opposite sex under 
similar working conditions in jobs requiring equal 
skill, effort, and responsibility.” 29 CFR §800.151, 
31 Fed. Reg. 2657 (Feb. 11, 1966). (Emphasis 
added.)18

The Labor Department successfully implemented its 
policy in Wirtz v. Midwest Mfg. Co., 18 WH Cases 
556 (S.D. 111., 1968, not otherwise reported), an Equal 
Pay Act suit brought by the Department to eliminate 
a ten cent an hour sex-based wage differential. Midwest

18Water and Power and various amici cite 29 CFR §800.- 
116(d) in support of their position. This Labor Department 
Bulletin permits an employer to provide unequal pension benefits 
for men and women if employer contributions to the plan 
are the same for both sexes. Not only does this Bulletin make 
no reference to employee contributions, but it is not included 
among the Labor Department regulations to which the EEOC 
initially agreed to defer, i.e., 29 CFR Parts 800.119 through 
800.163. See note 16, supra.

2 2 6



45 -

claimed that the differential was justified as a factor 
other than sex because of the additional cost required 
to provide its female employees with equal unemploy­
ment compensation, workers’ compensation, and ac­
cident and health insurance. The Labor Department 
disagreed and, in a consent decree, repeated that a 
wage differential based on “claimed differences between 
the average cost of employing women employees as 
a group and the average cost of employing men em­
ployees as a group . . . does not qualify as a dif­
ferential based on any ‘other factor other than sex.’ ” 
(Emphasis in original.) 18 WH Cases at 560-561.

The instant case parallels Midwest and the case 
discussed in the Administrator’s 1964 opinion letter. 
In each case, women received an effectively lower 
wage rate than their male counterparts because of 
the higher cost of providing them with pension and 
other benefits. The lower rate in Midwest and the 
opinion letter resulted from a wage differential based 
on these higher costs; in the instant case it resulted 
from the larger pension plan contributions women were 
required to make from their paychecks. Thus, a man 
and a woman performing the same work and each 
earning $1,000 a month contributed $49.70 and $57.10, 
respectively, to Water and Power’s Plan.19 The net 
result of the woman’s larger contribution was that 
she earned 4.6 cents an hour less than her male counter- * 1

# 19These figures conform to the 14.84% contribution rate 
differential that Water and Power admits existed until January
1, 1975. See Affidavits of Harry Church (R. 308) and Allan 
F. Larson (R. 311).



-4 6 -

part, just as the woman in the opinion letter would 
have earned three cents an hour less because of pension 
costs.20 For this reason, the Labor Department filed 
an amicus curiae brief in the Court of Appeals challeng­
ing Water and Power’s discriminatory practice.

The legislatiave history underlying the Equal Pay 
Act supports the Labor Department’s position that 
Water and Power’s use of sex-segregated tables was 
unlawful and explodes the myth that the practice was 
exempted under Section 206(d) (1) (iv) as based on 
a factor other than sex.

The House Committee on Education and Labor, 
which reported out the Equal Pay Act, observed that 
the factor other than sex exemption was a catch-all 
for the kinds of distinctions available under subsections 
(d ) (1 ) (i) through (iii), i.e., distinctions based on 
seniority, merit or production. It commented:

“Three specific exceptions and one broad general 
exception are also listed. It is the intent of this 
committee that any discrimination based upon any 
of these exceptions shall be exempted from the 
operation of this statute. As it is impossible to 
list each and every exception, the broad general 
exclusion has been also included. Thus, among 
other things, shift differentials, restrictions on or 
differences based on time of day worked, hours

20The fact that women may be paid the same salary as 
men does not make their wage rates equal under the Equal 
Pay Act when the actual take-home pay of women is less. 
With certain exceptions not applicable here, payments made 
to satisfy minimum wage requirements must be unconditional, 
i.e., they must be “free and clear,” and the employee must 
actually have use of the money. Brennan v. Veterans Cleaning 
Service, Inc., 482 F.2d 1362, 1369 (5th Cir. 1973). The 
same principle applies to the Equal Pay Act since its function 
also is to increase wages and improve living standards.

2 2 8



47—

of work lifting or moving heavy objects, differences 
based on experience, training, or ability would 
also be excluded.” House Report No. 309 to ac­
company H. R. 6060, May 20, 1963, Committee 
on Labor and Education, reprinted in 1963 U.S. 
Code Cong. & Admin. News 687, 689 (88th 
Cong., 1st Sess.).

There is nothing in this House Report to indicate 
that Section 206(d)(1) was intended to exempt any 
actuarially based employee program requiring less take- 
home pay for women, including pension programs, from 
the requirements of the Equal Pay Act. Exemption 
(iv), on which Water and Power relies, was designed 
only to include classifications like those already ex­
empted.21

The Report of the Senate Committee on Labor and 
Public Welfare provides additional support for the prin­
ciple that sex-based wage differentials must rest on 
an analysis of all employment costs. It states:

“During the course of the hearings, testimony 
was introduced on the question of the cost which 
employers encounter in the employment of women 
while they do not encounter in the employment

21During debate on the Equal Pay Act, as pointed out 
at page 41 of the Amicus Brief of the American Council of 
Life Insurance (“ACLI”), the House rejected an amendment 
which would have allowed wage differentials based on the 
difference in cost associated with employing members of different 
sexes. As further explained by ACLI, the amendment was 
rejected by at least two members on the ground that the differen­
tials already were permitted under exception (iv). However, 
ACLI failed to point out that to be exempted under this 
amendment an employer would have had to analyze all sex- 
related employment factors as the Labor Department has ruled. 
See, e.g., remarks of Rep. Thompson, 109 Cong. Rec. 9207 
(89th Cong. 1963). In any event, the House and Senate Com­
mittee Reports are more reliable indications of legislative intent 
than the random statements of a few members of the House.

229



—48

of men. Some employers stated that the costs 
of their pension and welfare plans were higher for 
women because of maternity costs in their health 
benefits and because of the longer lifespan of 
women in pension benefits. . . .

“This question of added cost resulting from 
the employment of women is one that can be 
only answered by an ad hoc investigation. Evidence 
was presented to indicate that while there may 
be alleged added costs, these are more than com­
pensated for by the higher productivity of women 
against men performing the same work and that 
the overall result for the employer was a lesser 
production cost than would result from the hiring 
of only men. Furthermore, questions can legiti­
mately be raised as to the accuracy of defining 
such costs as pension and welfare payments as 
related to sex. . . .

“It is the intention of the committee that where 
it can be shown that on the basis of all of the 
elements of the employment costs of both men 
and women, an employer will be economically 
penalized by the elimination of a wage differen­
tial, the Secretary can permit an exception similar 
to those he can permit for a bona fide seniority 
system or other exception mentioned above. ’’(Em­
phasis added.) 109 Cong. Rec. 8915.22

In sum, Water and Power’s contention that its use 
of sex-segregated tables was exempted from Title VII

22TIAA-CREF at page 34 of its Amicus Brief quoted only 
a selected portion of this part of the Senate Report and concluded 
that wage cost differentials based solely on greater pension 
costs for women were justified as based on a factor other 
than sex. As the entire Senate Report indicates, however, this 
is not the case.

230



— 4 9 —

because the tables were “based on any other factor 
other than sex” is totally without merit. Sex is exactly 
what Water and Power’s tables were based on and 
there exists no compelling authority that Congress in­
tended to insulate even customary actuarial practices 
that discriminate against women from the type of dis­
crimination forbidden by Title VII.

THE RANDOLPH-HUMPHREY COLLOQUY DOES NOT 
SUPPORT WATER AND POWER’S CLAIM THAT THE 
BENNETT AM ENDM ENT WAS DESIGNED TO PER­
MIT DIFFERENTIAL TREATM ENT OF MEN AND  
WOMEN UNDER RETIREMENT PLANS.

Despite the overwhelming legislative intent not to 
exclude sex-related wage differentials based on selected 
costs of employment under the Equal Pay Act, Water 
and Power relies on a colloquy between Senators Ran­
dolph and Humphrey as evidence of what Congress 
intended Section 206(d)(1) to encompass. In this ex­
change, which occurred during debate on the Civil 
Rights Act but after the Bennett Amendment was 
adopted, Senator Humphrey stated that the purpose 
of the Amendment would permit differences of treat­
ment in industrial benefit plans, including earlier retire­
ment options for women.23 * I

23The entire Randolph-Humphrey exchange is as follows:
SEN. RANDOLPH: Mr. President, I wish to ask of 

the Senator from Minnesota [Mr. Humphrey], who is 
the effective manager of the pending bill, a clarifying 
question on the provisions of Title VII.
I have in mind that the social security system, in certain 
respects, treats men and women differently. For example, 
widows’ benefits are paid automatically; but a widower 
qualifies only if he is disabled or if he was actually 
supported by his deceased wife. Also, the wife of a retired 
employee entitled to social security receives an additional 
old age benefit; but the husband of such an employee 

(This footnote is continued on next page) 231



- 5 0 -

Senator Humphrey’s opinion on the Equal Pay Act 
clearly is not the law. That Act, which was intended 
to provide equal pay for equal work, has no application 
whatsoever to differential retirement ages based on 
sex. Title VII, on the other hand, does prohibit this 
type of discrimination. Bartmess v. Drewrys U.S.A., 
Inc., 444 F.2d 1186 (7th Cir. 1971), cert, denied, 
404 U.S. 939 (1971). As the Court of Appeals in 
the instant case stated:

“It is questionable whether the Senator’s statement, 
made during the debates on the incorporating 
statute [i.e,, Title VII], would be significant when 
it erroneously interprets the incorporated statute 
[i.e., the Equal Pay A ct].” 553 F.2d at 590.

The linchpin of the Randolph-IIumphrey colloquy, 
which was that the Bennett Amendment permitted cer­
tain sex-based practices then prevailing under social 
security statutes, was recently rejected by the Court 
in Califano v. Goldfarb, supra. During the same Senate 
colloquy in which Senator Humphrey volunteered that 
the Bennett Amendment permitted early retirement op­
tions for women, he stated that the Amendment also 
permitted differential treatment under social security 
statutes as between widows and widowers. These, of 
course, were the very social security statutes held uncon­
stitutional in Califano where the Court found that 
“women contributors to the social security system were

docs not. These differences in treatment as I recall, are 
of long standing. Am I correct, I ask the Senator from 
Minnesota, in assuming that similar differences of treatment 
in industrial benefit plans, including earlier retirement op­
tions for women, may continue in operation under this 
bill, if it becomes law?

SEN. HUMPHREY: Yes. That point was made unmis­
takably clear earlier today by the adoption of the Bennett 
amendment; so there can be no doubt about it.”
110 Cong. Rec. 13663-64, June 12, 1964.232



-51

disadvantaged as compared to similarly situated men.” 
430 U.S. at 208, 97 S. Ct. at 1027. Moreover, the 
social security system did not then, and does not now, 
use sex-based tables to determine employee contributions 
to, or benefits from, the Old-Age and Survivors Disabil­
ity Insurance Trust Funds. 42 U.S.C. §§401 (a), et 
seq.

Senator Humphrey’s concern in his exchange with 
Senator Randolph was to preserve favorable treatment 
for women. Thus, in a letter to a Mr. Nicholls of 
the Northwestern Bell Telephone Company, Senator 
Humphrey stated that Title VII was, in part, 
designed to improve the employment status of women 
and that “it would be a gross distortion of the provi­
sions of Title VII to apply this language in a manner 
which impaired existing pension, retirement, or benefit 
programs” favoring women. Rosen v. Public Service 
Electric & Gas Co., 328 F. Supp. 454 (D.C.N.J. 
1970), remanded in A ll  F.2d .... (3rd Cir. 1973). It is 
reasonable to assume, therefore, that in his exchange 
with Senator Randolph, Senator Humphrey did not 
sanction discriminatory practices which, like the practice 
at issue in the instant case, were aimed against women.24 * VII

24This interpretation of Title VII is contrary to other indica­
tions of legislative intent. One commentator has stated that 
“Congress did not share Senator Humphrey’s belief about the 
scope of the Act.” M. Gold, “Equality of Opportunity in Retire­
ment Funds,” 9 Loyola L. Rev. 596, 602 (1976). Another 
has called Senator Humphrey’s comment on the scope of Title
VII “quite puzzling.” Note, Developments in the Law: Employ­
ment Discrimination and Title VII of the Civil Rights Act 
of 1964, supra, 84 Harv. L. Rev. at 1173. See also M. 
Bernstein and L. Williams, “Tide VII and the Problems of 
Sex Classifications in Pension Programs,” supra, 74 Col. L. 
Rev. at 1218, finding that Senator "Humphrey’s exchange with 
Senator Randolph “took place several hours after the [Bennett] 
Amendment was adopted, casting some doubt on its value 
as interpretive history.”

233



— 52-

Congress put to rest any question concerning the 
vitality of Senator Humphrey’s remark when it amended 
Title VII in 1972 to extend its protection to state 
and local government employees. The Conference Re­
port on the Amendments stated that “ [i]n any area 
where the new law does not address itself, or in any 
areas where a specific contrary intention is not indicated, 
it was assumed that the present case law as developed 
by the courts would continue to govern the applicability 
and construction of Title VII.25 Case law in 1972 
included two decisions striking down differential retire­
ment ages under Title VII, the Seventh Circuit’s opinion 
in Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 
(7th Cir. 1971), cert, denied, 404 U.S. 939, and 
the District Court’s opinion in Rosen v. Public Service 
Electric & Gas Co., supra.

Both the Bartmess and Rosen decisions expressly 
rejected the Randolph-Humphrey colloquy as a proper 
interpretation of the Bennett Amendment. Thus, the 
Bartmess Court, quoting the lower court in Rosen, 
found that “ [t]he debates in Congress neither support 
nor refute” Senator Humphrey’s statements. 444 F.2d 
at 1190. It concluded that “absent some strong indica­
tion of legislative intent to the contrary, we must 
read the words of the statute with their commonly 
accepted meanings.” Id.

25Legislative History of the Equal Employment Opportunity 
Act of 1972 (“Legislative History”), United States Senate (U.S. 
Gov’t. Printing Office, Washington, D.C., 1972), at page 1844. 
The Court in International Brotherhood of Teamsters v. United
States, .....  U.S. __ , 97 S.Ct. 1843, 1864, n. 39, found
that the 1972 Conference Committee Report was not compelling 
in that case because the section at issue was part of the 1964 
Act. In the instant case, however, public employees were brought 
under Title VII by the 1972 Amendments and, therefore, the 
intent of that Congress as expressed in the Conference Committee 
Report “controls.” Id.234



— 5 3 —

The Court of Appeals in the instant case recognized 
the problems inherent in Senator Humphrey’s remarks 
and gave short shrift to the Randolph-Humphrey col­
loquy:

“The discussion occurred hours after passage of 
the Bennett Amendment and cannot be said to 
be a part of the legislative history of that amend­
ment. The Department claims that although the 
statement was made after the Bennett Amendment 
was adopted, it was still made before the Senate 
voted on the entire Civil Rights Act. Thus, it 
claims that Senator Randolph and others who 
may have wanted to preserve such distinctions 
were misled into not offering a further amend­
ment for that purpose. This argument might have 
some merit were it not for the fact that the 
same Congress (the 88th) passed both the Civil 
Rights Act and the Equal Pay Act, and it seems 
unlikely that Senator Humphrey’s erroneous inter­
pretation of the latter misled many, if any, sena­
tors. It certainly misled no members of the House. 
So far as appears, members of the House never 
heard of it.” 553 F.2d at 589. See also Decision 
on Petition for Rehearing.

Indeed, every court to consider whether sex-based 
retirement ages violate Title VII has held that they 
do. Chastang v. Flynn & Emrich, 541 F.2d 1040 
(4th Cir. 1976); Peters v. Missouri Pacific Railroad 
Co., 483 F.2d 490, 492, n. 3 (5th Cir. 1973) (in 
banc); Rosen v. Public Service Electric & Gas Co., 
supra; Bartmess v. Drewrys U.S.A.. Inc., supra; and 
Fitzpatrick v. Bitz.er, 390 F. Supp. 278 (D. Conn. 
1974), aff'd on this issue, 519 F.2d 559 (2d Cir.

2 3 5



— 54-

1975), aff’d in part and rev’d in part on other grounds, 
427 U.S. 445, 96 S. Ct. 2666 (1976).

The Court in General Electric Co. v. Gilbert, supra, 
quoted Senator Humphrey’s statement to Senator Ran­
dolph with apparent approval. 429 U.S. at 144, 97 
S.Ct. at 412. Based on this remark, the Court held 
Labor Department interpretations of Section 6(d) of 
the Equal Pay Act applicable to Title VII and applied 
an interpretive regulation issued by the Wage and Hour 
Administrator to undermine an EEOC construction of 
Title VII. Respondents do not disagree with the Court’s 
conclusion that Labor Department interpretations of 
Section 6(d) can be relevant in Title VII actions. (In 
fact, Respondents have detailed the Labor Department’s 
position above to demonstrate that, unlike in Gilbert, 
its position is consistent with interpretations of 
Title VII by the EEOC.) Respondents, however, 
do disagree with the possible inference that sex- 
based differences of treatment in retirement plans 
are valid. Because this conclusion was not essen­
tial to the Court’s decision that General Electric’s exclu­
sion of pregnancy disability coverage did not discrimi­
nate based on sex, nor even to the Court’s rejection 
of the EEOC guideline, we respectfully suggest for 
the reasons stated above that Senator Humphrey’s re­
mark not be interpreted to achieve this result.

2 3 6



— 55'

RESPONDENTS ARE ENTITLED UNDER TITLE VII TO 
RESTITUTION OF THE CONTRIBUTIONS THEY  
WERE ILLEGALLY REQUIRED TO MAKE TO 
WATER AND POWER’S PLAN.

The District Court awarded class members restitution 
of illegally required contributions from the date the 
EEOC issued its guidelines prohibiting contribution 
rate differentials based on sex in retirement plans (April 
5, 1972) (29 CFR §§I604.9(b), (e), (f)) . This award 
was affirmed by the Court of Appeals and it should 
not now be reversed.

The Court in Albemarle Paper Co. v. Moody, 422 
U.S. 405, 95 S.Ct. 2362 (1975), after an extensive 
analysis of Title VII, concluded that one of its primary 
purposes is to “make persons whole for injuries suffered 
on account of unlawful employment discrimination.” 
422 U.S. at 418, 95 S.Ct. at 2372.26 Based on this 
finding, it sanctioned an award of back pay to a 
'class of black employees that had been subjected to 
various forms of employment discrimination.27

26A section-by-section analysis introduced by Senator Wil­
liams to accompany the Conference Committee Report on the 
1972 Amendments strongly reaffirmed the “make-whole” purpose 
of Title VII:

“In dealing with the present section 706(g) [remedies] 
the courts have stressed that the scope of relief under 
that section of the Act is intended to make the victims 
of unlawful discrimination whole, and that the attainment 
of this objective rests not only upon the elimination of 
the particular unlawful employment practice complained 
of, but also requires that persons aggrieved by the conse­
quences and effects of the unlawful employment practice 
be, so far as possible, restored to a position where they 
would have been were it not for the unlawful discrimina­
tion.” Legislative History, supra, at 1848.

27The Court did not order payment to the plaintiffs because 
of unresolved factual allegations that the employer was “im­
properly and substantial prejudiced” by plaintiffs’ inconsistent 
demands for back pay. Rather, the case was remanded to 
the District Court to review whether the employer was in 
tact prejudiced. 422 U.S. at 424-425, 95 S.Ct. at 2375. 237



•56

The instant case is clearly more compelling than 
Albemarle and other cases where back pay is at issue. 
Because the remedy in cases of that type involve the 
payment of money which was never actually earned, 
the award serves not only to make whole individuals 
who were the targets of employment discrimination, but 
also to penalize the employer. This is not true, however, 
in the instant case where Respondents are merely seek­
ing restitution of money they actually earned and had 
taken away from them in violation of Title VII.

Water and Power’s claim that it acted in good faith 
does not entitle it to keep the additional contributions 
collected by reason of its discriminatory practice. The 
Court in Albemarle rejected this so-called “good-faith” 
defense as follows:

“But, under Title VII, the mere absence of bad 
faith simply opens the door to equity; it does 
not depress the scales in the employer’s favor. 
If backpay were awardable only upon a showing 
of bad faith, the remedy would become a punish­
ment for moral turpitude, rather than a compensa­
tion for workers’ injuries. This would read the 
‘make whole’ purpose right out of Title VII for 
a worker’s injury is no less real simply because 
his employer did not inflict it in ‘bad faith.’ ” 
Albemarle Paper Co. v Moody, supra, 422 U.S. 
at 422, 95 S.Ct. at 2374.

The burden on Water and Power of refunding Re­
spondents’ excess contributions is not as significant 
as it is portrayed. Thus, the Court of Appeals found 
that:

“The impact of returning the excess contributions 
to the plaintiffs in this case is far from oppres­

2 3 8



— 5 7 —

sive. The amount involved is only 15% of the 
contributions made by a minority of the Depart­
ment’s employees for the 3 3-month period from 
April 5, 1972, to December 31, 1974. This might 
leave the plan somewhat underfunded, but a num­
ber of solutions to that problem are readily avail­
able. . . . [W]hatever the adjustments that would 
have to be made, we do not find that the burden 
on the pension plan or the Department is sufficient 
to offset the compelling claim of the plaintiffs 
to recover the money which they were wrongfully 
required to contribute.” Court of Appeals Opinion, 
553 F.2d at 592.

Water and Power likewise is not protected by the 
doctrine of sovereign immunity contained in the Elev­
enth Amendment or common law. The simple fact 
is that “ [ t] he bar of the Eleventh Amendment to 
suit in federal courts . . . does not extend to counties 
and similar municipal corporations.” Mt. Healthy City
School Dist. v. Doyle, .... U.S....... , 97 S.Ct. 568,
573. Thus, the Eleventh Amendment does not apply 
to Water and Power which was created under Section 
70 of the Los Angeles City Charter.

In any event, the possibility that the sovereign im­
munity defense might be available in Title VII actions 
was recently put to rest by the Court in Fitzpatrick 
v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666 (1976), a 
case remarkably similar to the instant case. In Fitz­
patrick, a class of male plaintiffs sued to invalidate 
“certain provisions in the State’s statutory retirement 
benefit plan [that J discriminated against them because 
of their sex.” 427 U.S. at 448, 96 S.Ct. at 2668. 
The provisions in question permitted “women employees

239



-58-

having 25 or more years of state service the right 
to retire with pension rights five (5) years earlier 
than similarly situated men, and further provide [d] 
rate differentials favoring female over male employees 
who retire with less than 25 years of state service.” 
Court of Appeals decision in Fitzpatrick v. Bitzer, 
519 F.2d 559, 561 (2d Cir. 1975).

The District Court found that these provisions vio­
lated Title VII and granted prospective injuctive relief. 
The Court, however, refused to award retroactive retire­
ment benefits or reasonable attorneys’ fees. It held 
that “both would constitute recovery of money damages 
from the State’s treasury, and were therefore precluded 
by the Eleventh Amendment and by this Court’s deci­
sion in Edelman v. Jordan, [415 U.S. 651, 94 S.Ct. 
1347 (1974)].” 427 U.S. at 450, 96 S.Ct. at 2665. 
This decision was affirmed by the Court of Appeals.28

This Court, however, reversed the ruling of the lower 
courts, finding that under Title VII the “ ‘threshold 
fact of congressional authorization,’ [Edelman v. Jor­
dan]| 415 U.S., at 612, 94 S. Ct., at 1360, to sue 
the State as employer is clearly present.” 427 U.S. 
at 452, 96 S. Ct. at 2670. It stated:

“It is true that none of these previous cases pre­
sented the question of the relationship between the 
Eleventh Amendment and the enforcement power 
granted to Congress under §5 of the Fourteenth 
Amendment. But we think that the Eleventh 
Amendment, and the principle of state sovereignty 
which it embodies, see Hans v. Louisiana, 134

28The Court of Appeals reversed the decision of the District 
Court on the issue of attorneys’ fees, however, finding that 
this award would have only an ancillary effect on the State 
treasury of the type permitted by Edelman v. Jordan.

240



— 5 9 —

U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), 
are necessarily limited by the enforcement pro­
visions of §5 of the Fourteenth Amendment. In 
that section Congress is expressly granted authority 
to enforce ‘by appropriate legislation’ the substan­
tive provisions of the Fourteenth Amendment, 
which themselves embody significant limitations 
on state authority. When Congress acts pursuant 
to §5, not only is it exercising legislative author­
ity that is plenary within the terms of the constitu­
tional grant, it is exercising that authority under 
one section of a constitutional Amendment whose 
other sections by their own terms embody limita­
tions on state authority. We think that Congress 
may, in determining what is ‘appropriate legisla­
tion’ for the purpose of enforcing the provisions 
of the Fourteenth Amendment, provide for private 
suits against States or state officials which are 
constitutionally impermissible in other contexts. 
[Footnote and citations omitted.]” 427 U.S. at 
456, 96 S. Ct. at 2671.

In addition, Fos Angeles City Charter, Section 220.1 
(f) requires that money deposited in Water and Pow­
er’s Plan “be kept separate and apart from all other 
money on deposit with the City Treasurer.” Water 
and Power’s chief accounting employee (who is also 
the chief accounting employee for the administrators 
of the Plan) is the only person authorized to with­
draw money from the Plan. Thus, any recovery in 
the instant action would not be from City coffers 
but from the Plan itself.

241



CONCLUSION.

“ [Sjince sex, like race and national origin, is 
an immutable characteristic determined solely by 
the accident of birth, the imposition of special 
disabilities upon the members of a particular sex 
because of their sex would seem to violate ‘the 
basic concept of our system that legal burdens 
should bear some relationship to individual re­
sponsibility. . . Weber v. Aetna Casualty & 
Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 
L.Ed.2d 768.” Frontiero v. Richardson, 411 U.S 
677, 686, 93 S.Ct. 1764, 1770 (1973).

Title VII prohibits an employer from discriminating 
against “any individual” with respect to “conditions 
of employment” or “employment opportunities” on the 
basis of sex. (Emphasis added.) Section 703(a)(1), 
( 2 ).

In enacting Title VII, “Congress intended to prohibit 
all practices in whatever form which create inequality 
in employment opportunity due to discrimination on 
the basis of race, religion, sex, or national origin.” 
(Emphasis added and citations omitted.) Franks v. 
Bowman Transportation Co., 424 U.S. 747, 763, 96 
S. Ct. 1251, 1263 (1976). Employers are required 
under Title VII to give “persons of like qualifications 
. . . employment opportunities irrespective of their 
sex.” Phillips v. Martin Marietta Corp., 400 U.S. at 
544, 91 S. Ct. at 497-498.

The reason Congress outlawed sex discrimination 
in employment is no mystery: women workers con­

- 6 0 -

242



•61—

sistently have been subjected to a myriad of discrimi­
natory employment practices which in turn has de­
pressed the economic status of women as compared to 
men. As the House Committee on Education and Labor 
observed, in explaining the need for the 1972 amend­
ments to Title VII:

“Recent statistics released from the U.S. Depart­
ment of Labor indicate that there exists a pro­
found economic discrimination against women 
workers. Ten years ago, women made 60.80% of 
the average salaries made by men in the same year; 
in 1968, women’s earnings still only represented 
58.2% of the salaries made by men in that year. 
Similarly, in that same year, 60% of women, 
but only 20% of men earned less than $5,000. 
At the other end of the scale, only 3% of women, 
but 28% of men had earnings of $10,000 or

Women are subject to economic deprivation as 
a class. Their self-fulfillment and development is 
frustrated because of their sex. Numerous studies 
have shown that women are placed in the less 
challenging, the less responsible and the less re­
munerative positions on the basis of their sex 
alone.” Legislative History, supra at page 64.

The House Report further recognized that Title VII 
was designed to eliminate employment practices that 
discriminated against women and to improve their em­
ployment status:

‘Such blatantly disparate treatment is particular­
ly objectionable in view of the fact that Title VIT 
has specifically prohibited sex discrimination since

243



— 6 2 —

its enactment in 1964. The Equal Employment 
Opportunity Commission has progressively in­
volved itself in the problems posed by sex dis­
crimination, but its efforts here, as in the area 
of racial discrimination, have been ineffective due 
directly to its inability to enforce its findings.

“In recent years, the courts have done much to 
create a body of law clearly disapproving of sex 
discrimination in employment. Despite the efforts 
of the courts and the Commission, discrimination 
against women continues to be widespread, and 
is regarded by many as either normally or physi­
ologically justifiable.

“The Committee believes that women’s rights are 
not judicial divertissements. Discrimination against 
women is not less serious than other forms of 
prohibited employment practices and is to be ac­
corded the same degree of social concern given 
to any type of unlawful discrimination.” Id. at 
pages 64-65.

See also S. Rep. No. 92-415, Legislative History, supra, 
at 416-417. Water and Power’s reliance on sex-segre­
gated mortality tables served to exacerbate this dismal 
situation of working women. The use of these tables, 
moreover, was the product of bureaucratic momentum 
and administrative convenience and did not serve any 
legitimate business purpose. That Water and Power 
has successfully operated its Plan for nearly three years 
without using sex-segregated tables highlights the fact 
that such practice was totally unnecessary.

244



— 63—

For the reasons set forth in this Brief, Respondents 
respectfully submit that the Judgment of the Court 
of Appeals be affirmed.

Dated: December 21, 1977.

Respectfully submitted,
Kenneth  M. Schwartz,
Laurence D. Steinsapir,
Robert M. Dohrmann,
R ichard D. Sommers,
Howard M. Knee ,

By R obert M. Dohrmann,
Howard M. Knee ,

Attorneys for Respondents.

Of Counsel:
Katherine Stoll Burns,
Schwartz, Steinsapir, Dohrmann,

& Krepack.

245





IN THE

Supreme Court of the United States
October Term, 1977 

.No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V.

VS.
Petitioners,

M^ ? ^ ANHART’ CAROLYN MAYSHACK, MARGERIE 
STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE t o  PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

PETITIONERS’ REPLY BRIEF.

BURT PINES, City Attorney,
EDWARD C. FARRELL, Chief Assistant City 

Attorney for Water and Power,
J. DAVID HANSON, Deputy City Attorney,
DAVID J. OLIPHANT, Deputy City Attorney,

By DAVID J. OLIPHANT, Deputy City Attorney, 
111 North Hope Street, P.O. Box 111,
Los Angeles, Calif. 90051,

Attorneys for Petitioners.

247





SUBJECT INDEX

Introductory Statement ............... ....................... . 1

Summary of Argument ..........................................  3

I
Setting Salary or Compensation Standards With 

Respect to Sex Is Not a Violation Under Title 
VII Unless It Is a Subterfuge to Avoid the Pro­
hibition of the Equal Pay Act .......................  4
1. Setting a Compensation Standard Based

on Sex Does Not Violate Title V I I .......... 4
2. There Is No Duty to “Justify” Differen­

tial Amount Since No Improper Discrim­
ination Has Been Shown .......................  9

3. The Equal Pay Act Only Prohibits Un­
equal Rate of Wage Payments Where 
There Is No Other Factor Other Than 
Sex for Rate of Payment Differential.....  14

4. Respondents’ Statistical Arguments Dem­
onstrate the Validity of Petitioners’ Posi­
tion ............................................................  16

II
1972 Legislation on Title VII and 1974 Pension 

Legislation Demonstrates Intent Not to Regu­
late Governmental Pension Systems or to Re­
quire “Unisex” Policies .................    23

m
Guidelines and Bulletins May Not Be Given Ef­

fect Against a Local Governmental Entity 
Since the Administrative Procedure Act Was

P a g e



11.

Adopted After Skidmore v. Swift and the 
Agencies Were Given No Jurisdiction With 
Respect to Local Government Entities ........  32

IV
Under the Fourteenth Amendment, Congress 

May Not Regulate Benefits Provided in Pen­
sion Plans of Local Government Entities or 
Impose Any Standard Regarding Compensa­
tion, Except Under a Rational Basis Standard

Page

Respondents Fail to Show Any Convincing Rea­
son for the Court to Reverse Its Recent De­
cisions Respecting Differential Amount of 
Compensation Based on a Factor Correlated
With Sex ...........................................................  45

Conclusion ............................................................ .. 49

APPENDIX

Employment Testing and Judgments; Judicial Tests 
and Judgments.

250



111.

TABLE OF AUTHORITIES CITED

Cases Page
Almassy v. L.A. County Civil Service Com., 34 

Cal.2d 387, 210 P.2d 503 (1949) ..................... 42
Assaro v. Harnett, 414 F.Supp. 473 (S.D.N.Y.

1976), aff’d 553 F.2d 93 ....................................... 30
Bailey v. Los Angeles County (C.D. Cal. 75-3863)

........ ........................................................................... 28
Baker v. California Land Title Co., 507 F.2d 895 

(9th Cir. 1974) ..............................    12
Blake v. City of Los Angeles, 435 F.Supp. 55 (C.D.

Cal. 1977) ............................................................7, 45
Brawley v. United States, 96 U.S. 168 (1877) ........ 16
Califano v. Goldfarb, 430 U.S. 199 (1977) ............. 47
Dothard v. Rawlinson, .... U.S...... , 97 S.Ct. 2720

(1977)     7
EEOC v. Colby College, USDC (S.D. Maine, Civ.

No. 75-136-SD) ............................................... 9, 48
Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973)

.........................-.........................................................  41
Franks v. Bowman Transportation Co., 424 U.S.

747 (1975) ..............................................................  10
Frontiero v. Richardson, 411 U.S. 677 (1973) ......... 47
F.T.C. v. National Casualty Co. (1957) 357 U.S.

560 ......................     25
General Electric Co. v. Gilbert, 429 U.S. 125, 97

S.Ct. 401, 50 L.Ed.2d 343 (1976) .....................
..................... ...................... 2, 4, 6, 9, 45, 46, 47, 49

Griggs v. Duke Power, 401 U.S. 424, 91 S.Ct. 849,
28 L.Ed.2d 158 (1971) ................................... 8, 41 251



I V .

Gruenwald v. Gardner, 390 F.2d 591 (2d Cir. 
1968) ................................................. - ...................  25

Henderson v. Oregon, 405 F.Supp. 1271 (D. Ore. 
1976), appeal docketed (CA 9, No. 76-1706, 
March 30, 1976) ............ ....................... 17, 48, 49

Hewlett Packard v. Barnes, 425 F.Supp. 1294 (N.D.
Cal. 1977) ....................................................... ...... 30

Hurn v. Retirement Fund Trust, 424 F.Supp. 80 
(C.D.Cal. 1976) ...................................................  30

International Brotherhood of Teamsters v. United
States, .... U,S......., 52 L.Ed.2d 396, 97 S.Ct.
...., 45 L.W. 4506 (1977) ..................................8, 41

International Union Electrical Radio & Machine 
Workers v. Westinghouse Electric, USDC N.D.
W.Va., Civ. No. 75-62-F(4) ............. ..................  9

Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 
L.Ed.2d 189 (1974) ........................................5, 47

Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 
1717 (1966) ................ .................................... 43, 44

Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 
(1803) ............... ..................................................... 13

Morton v. Ruiz, 415 U.S. 199.(1973) ................  40
Nashville Gas Co. v. Satty, .... U.S......., 33 Lab.

Law Rep., CCH, Dec. 8, 1977 — ........................
............................ ......................4, 6, 9, 10, 24, 46, 49

National League of California Cities v. Usery, 426 
U.S. 833, 49 L.Ed.2d 245 ............25, 30, 31, 44

252



V.

Oregon v. Mitchell, 400 U.S. 112 (1970) ..30, 45
People v. Collins, 68 Cal.2d 319, 66 Cal.Rptr. 497,

438 P.2d 33 (1968) ....................................   17
Rosina Smith v. County of Los Angeles (C.D.

Cal. 74-253) .............................................    28
Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572,

42 L.Ed.2d 610 (1975) ......................... .......... 5, 47
Skidmore v. Swift & Co., 343 U.S. 134 (1944) 

......................................................... 3, 32, 33, 35, 36
Trans World Airlines v. Hardison, .... U.S...... , 45

L.W. 4672 (June 16, 1977) ...................5, 10, 12
United Airlines Inc. v. Evans, 431 U.S. 553 (1977) 

........................................................................    41
United States v. Nixon, 418 U.S. 683 (1974) ....13, 36 
Village of Arlington Heights v. Metropolitan Hous­

P a g e

ing Development Corporation, 429 U.S. 252, 97 
S.Ct...... , 50 L.Ed.2d 450 (1977) .......................  5

Wayne Chemical, Inc. v. Columbus Agency Service 
Corp., 426 F.Supp. 316 (N.D.Ind. 1977) ........  30

Weber v. Kaiser Aluminum & Chem. Corp., 563 
F.2d .... (5th Cir.) ................... ................................  41

Weinberger v. Weisenfeld, 420 U.S. 636 (1975) .. 47
Willingham v. Macon County, 507 F.2d 1084 (5th 

Cir. 1975) ........................................... ....................  12

Federal Register
38 Federal Register No. 149 (Aug. 3, 1973) .......  41
40 Federal Register, p. 24135 (1975) ................ 24
41 Federal Register, pp. 6194-95 ............................. 31

253



V I .

42 Federal Register, p. 59743 (Nov. 18, 1977) .... 32
42 Federal Register, p. 64826 (Dec. 28, 1977) ....  41

Miscellaneous
Abraham Lincoln, First Inaugural Address ........ 38
BNA Daily Lab. Rep. No. 80, April 23, 1976 .... 

............................................................................... 28, 30
109 Congressional Record, pp. 9196, 9209 ........7, 14
110 Congressional Record, p. 13504 .......................  7
110 Congressional Record, pp. 13663-4 ...............  24
110 Congressional Record, p. 15896 .......................  11
111 Congressional Record, p. 13359 ...................... 11
House Report No. 1980, May 3, 1946 ............  33
Senate Report 93-127 (3 U.S. Code Cong. & Adm. 

News ’74, p. 4884) .............. ..............................28, 29
United States Code Congressional and Administra­

tive News, p. 234 ............................................ ......  34
3 United States Code Congressional & Administra­

tive News, H.R. 95-533, pp. 4351, 4639 ........ 27
3 United States Code Congressional & Administra­

tive News ’74, pp. 4908, 4909 ........... ..................  29
3 United States Code Congressional & Administra­

tive News ’74, p. 5167 ..........................................  29
United States Code, Congressional Service 79th 

Cong. 2nd Sess., pp. 1195, 1198 (1946) ____ 33

Regulations
Code of Federal Regulations, Title 29, Sec. 800.116 

(d) ................................................-...................... -  24

Page

254



Code of Federal Regulations, Title 29, Sec. 1606.1
................................................... ................................  41

Code of Federal Regulations, Title 29, Sec. 1607.3
......................- ........ -.......... - ................................... . 41

Code of Federal Regulations, Title 41, Sec. 60-20.1
(c), p. 287 ............................................................  24

v ii.

P a g e

Statutes
California Constitution, Art. I, Sec. 8, Cl. 18 ...... 36
California Government Code, Secs. 31620-31622 .. 28
California Government Code, Sec. 31676.1 .........  28
Civil Rights Act of 1964, Sec. 703(a)(1 ) ........5, 6, 47
Civil Rights Act of 1964, Sec. 703(a)(2 ) ..5, 6, 41, 47 
Civil Rights Act of 1964, Sec. 703(h) .............. 6, 7, 8
Employee Retirement Income Security Act, Sec. 

2002(b) ...................................................  26
Government Code, Sec. 7500 ................................ 21
Internal Revenue Code of 1954, Sec. 401a(4) (26 

U.S.C., Sec. 401a(4)) .........................................  26
Internal Revenue Code of 1954, Sec. 408 (26

U.S.C. §408) .......................................................... 26
Public Law No. 92-603 ............................................... 24
Public Law No. 404, Sec. 9, Ch. 324 .................. . 34
86 Statutes at Large 1329, Social Security Amend­

ments of 1972 .......................................................... 24
United States Code, Title 15, Sec. 1012(b) ............  25
United States Code, Title 29, Sec. 206(d) ..............  9

255



vm.

United States Code, Title 29, Sec. 1003(b)(1) ...... 30
United States Constitution, Tenth Amendment ......

.................................................... .................... ..4, 30, 44
United States Constitution, Fourteenth Amendment 

..................................................... 3, 4, 31, 43, 44, 45

Page

Textbooks
Blumrosen, Administrative Creativity: The First 

Year of the Equal Employment Opportunity 
Commission, 38 Geo. Wash.L.Rev., pp. 694, 733
(1970) ................................................................ 34, 43

Davis, Administrative Law, 3d Ed. p. 68 ............  33
Equal Employment Opportunity Commission, 

Guidelines on Employment Testing Procedures, 
Sept. 21, 1966, 2 CCH Empl. Prac. Guide, Par. 
16,904 (1967) ............... ........................................ 34

Morrison and Henkel, The Significance Test Con­
troversy (1970, Aldine Publishing Co.) .....  42

The Federalist, Nos. 9, 10 (Mod. Lib. Ed.), pp.
54, 57, 58-59 ........................................................  38

The Federalist, No. 81, (Mod. Lib. Ed.) p. 531 .... 34
Tribe, Trial by Mathematics: Precision and Ritual 

in the Legal Process, 84 Harv. L. Rev., p. 1329
(1971) .....................................................................  17

256



IN THE

Supreme Court of the United States
October Term, 1977 

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF WATER AND 
POWER, a body corporate and politic; MEMBERS OF THE 
BOARD OF WATER AND POWER COMMISSIONERS OF 
THE DEPARTMENT OF WATER AND POWER, CITY OF 
LOS ANGELES; MEMBERS OF THE BOARD OF ADMIN­
ISTRATION OF THE DEPARTMENT OF WATER AND 
POWER EMPLOYEES’ RETIREMENT, DISABILITY AND 
DEATH BENEFIT INSURANCE PLAN; HENRY G. BOD­
KIN, JR.; KATHERINE B. DUNLAP; BURTON J. GIND- 
LER; MICHAEL GLAZER; HERBERT C. WARD; LOUIS 
J. WEIDNER, JR.; RALPH E. POWELL; LEO W. SUD- 
MEIER, JR.; WILLIAM D. SACHAU; and ROBERT V. 
PHILLIPS, Petitioners, 

vs.
MARIE MANHART, CAROLYN MAYSHACK, MARGERIE 

STOOP, ALICE F. MULLER and ETHEL L. LEHMAN, in­
dividually and on behalf of all other persons similarly situated; 
COMMITTEE TO PROTECT WOMEN’S RETIREMENT 
BENEFITS; and INTERNATIONAL BROTHERHOOD OF 
ELECTRICAL WORKERS, LOCAL UNION NO. 18,

Respondents.

PETITIONERS’ REPLY BRIEF.

Introductory Statement.
This is a case of statutory construction. The statutes 

are clear and the legislative history documented.
Respondents, and their supporting amici, ask the 

Court to make a policy determination contrary to the 
blend of policy determinations made by the Congress 
and expressed by the statute. In so doing, they also

257



— 2—

seek to have the Court reverse its own recent deter­
minations to enforce the statute as written and adopt 
a policy they would set.

They seek to extend federal regulation to local gov­
ernment pension systems. They seek to mandate prefer­
ential treatment for females in all retirement plans. The 
latter is contrary to what this Honorable Court said 
in General Electric Co. v. Gilbert 429 U.S. 125, 139 
fn. 17, 97 S.Ct. 401, 410 fn. 17, 50 L.Ed.2d 343, 
356 fn. 17 (1976) that Title VII does not require 
greater economic benefit be so paid.

The Department’s salary schedule establishes the same 
gross salaries for males and females. If such were 
paid and they were left to purchase their own annuities 
the females would have to spend more to buy the 
same size periodic annuity as the males, because 
of their longer life expectancy. Instead, the Department, 
in the present case provided a pension benefit system 
and withheld a larger contribution from the salary 
schedule of females than from males. The Department 
also contributed more towards the female’s annuity 
than to the male’s. The respondents wish to mandate 
a system where either all males will have to subsidize 
all females or all employers will have to pay more 
to females to support their annuities than to males. 
Under this system females will never have to pay 
the true proportionate cost of their annuities as com­
pared to males. The law does not require this.

Further, the statutes do not extend to the regulation 
of pension benefits per se, or to standards of compen­
sation set by local governmental entities.

258



Summary of Argument.
1. A differential rate of payment based on sex 

does not violate Title VII and the Equal Pay Act 
where another factor such as a pension system is the 
basis for the rate of payment and such is not a subter­
fuge. Plaintiffs (respondents) have the burden of prov­
ing that the rate of payment is not based on a factor 
other than sex and petitioners do not need to justify 
the differential. Respondents here claim, as a matter 
of federal law, a right to compensation greater than 
the amount paid to males.

2. Legislative history since enactment of Equal Pay 
Act demonstrates that Congress intended not to prohibit 
sex differentiation in compensation or in retirement 
plans rationally based. Legislative history also demon­
strates an intent not to regulate local government pen­
sion systems.

3. The adoption of the Administrative Procedure 
Act after the Skidmore v. Swift decision, and the 
repeated decisions of Congress not to grant the admin­
istrative agencies herein any rule-making authority or 
jurisdiction under either the Equal Pay Act or Title 
VII precludes giving effect to “guidelines” against peti­
tioners. With respect to local governmental entities, 
the “public interest” is represented not by EEOC, but 
by the Attorney General, and the pronouncements of 
EEOC may not be given any effect against petitioners 
either on questions of law or on questions of fact, 
but petitioners are entitled to de novo determinations 
in Article III courts.

4. Congress may not act to enforce Fourteenth 
Amendment except within the limits of the Fourteenth 
Amendment, i.e. on a rational basis standard. If Con­

— 3—

259



4 -

gress had acted outside that power to regulate a local 
government’s pension plan, its action would violate 
the Tenth Amendment.

5. The respondents have failed to show any sound 
reason why the Court should reverse its decisions in 
General Electric Corp. v. Gilbert, or Nashville Gas 
Co. v. Satty. If there is a rational basis for the Court 
to take a position favoring females in pension plans 
as respondents urge, then there is an equally rational 
basis for upholding systems which, on an actuarial 
( i.e. rational) basis treat the sexes equally. That being 
the case, your petitioners did not violate Title VII 
or the Equal Pay Act.

I
SETTING SALARY OR COMPENSATION STANDARDS 

WITH RESPECT TO SEX IS NOT A VIOLATION 
UNDER TITLE VII UNLESS IT IS A SUBTERFUGE 
TO AVOID THE PROHIBITION OF THE EQUAL 
PAY ACT,

1, Setting a Compensation Standard Based on Sex 
Does Not Violate Title VII.

Congress did not intend to prohibit the setting of 
compensation standards based on sex under Title VII. 
It only intended to prohibit different wage rates pay­
ments which violated the Equal Pay Act.

Congress has always been well aware that the very 
essence of every employment decision (setting salary 
standards, job classifications, hiring, firing, etc.) neces­
sarily involves “discrimination” in the proper sense 
of that word.

The setting of personnel and salary standards is 
like the legislative function in government. Laws classify 
and so discriminate. The application of employment

260



— 5—

standards in individual cases is like the judicial function. 
Judgments discriminate between cases within and those 
outside the statutory standard. Cf. Village of Arlington 
Heights v. Metropolitan Housing Development Corpo­
ration, 429 U.S. 252, 97 S.Ct......., 50 L.Ed.2d 450
(1977).

The setting of any standard necessarily involves a 
generalization which cannot (in the absence of omnis­
cience) be perfect in formulation or universally fair 
in application. Accordingly, application of any standard 
may adversely affect some individual in some respect,
Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 
L.Ed. 2d 189 (1974); Schlesinger v. Ballard, 419 
U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975);
Trans World Airlines v. Hardison, .... U.S.......  45
L.W. 4672 (June 16, 1977).

Every title of the 1964 Civil Rights Act was directed 
to the setting of standards and to the application of 
those standards in a particular context. For example 
Title I was directed to voting standards and their 
application; Title VII, to setting standards and their 
application in the employment context.

From the outset, Title VII separately addressed the 
setting of standards (§703( a ) (2 )) and the application 
of those standards in individual cases (§703 (a ) (1 )) .

The decisions of this Court impliedly recognize the 
distinction between the subsections. When the classifica­
tion or standard is bona fide, the plaintiff (or plaintiffs) 
are not entitled to relief under § 703 (a )(2 ) . On 
the other hand, when the application of such standard 
is bona fide, then the plaintiff (or plaintiffs1) are

'Plaintiffs may be a “procedural class” for judicial class action 
purposes; but they are not a “substantive” class established and 
protected as a “substantive” or “protected class” by a statute of 
Congress. 261



— 6—

not entitled to relief under § 703(a)(1 ). See General 
Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 
50 L.Ed.2d 343 (1976); Nashville Gas Co, v. Satty, 
.... U.S...... , 33 Lab. Law Rep., CCH, Dec. 8, 1977.

The statute in light of its legislative history shows 
that Congress did not intend Title VII to regulate 
the amount of compensation paid to the sexes.

The House Bill as amended prohibited failing to 
hire because of sex (§703(a )(1 ))  and setting standards 
adversely affecting employment opportunity because of 
sex (§703(a) (2 )). But, the remedies section of the 
House Bill allowed judicial remedies only in case of 
“discrimination on account of race, color, religion or 
national origin.”

The legislative history of the House makes clear 
that the reason for the seeming omission of “sex” 
in the remedies section, was that “sex” was added 
to the other sections only to ensure that the practical 
impact of the statute among women in the labor market 
would be color-blind. The House did not intend to 
expand governmental action regarding “sex” beyond 
the provisions of the Equal Pay Act. (See Opening 
Brief App. C5-6.)

The Senate, like the House, intended not to expand 
governmental action regarding sex beyond the prohi­
bitions of the Equal Pay Act.

Thus, the Dirksen-Humphrey substitute bill in­
cluded three major statements of legislative policy all 
contained in Section 703(h).

The first was the express statutory exclusions of 
good faith merit system, good faith seniority system, 
etc. These were taken from the already enacted Equal 
Pay Act. Such were clearly intended to have the

262



—7

same meaning in the later statutes as was intended 
by the earlier Act. The statute was not intended to 
regulate the setting of employment or salary standards 
or the application of such standards. That was to 
be, as always, the employer’s prerogative. The bill 
was not intended to establish a corporate state.

Moreover, as it was under the Equal Pay Act, classi­
fications based on sex, such as “male packagers/female 
packagers” were not prohibited by Title VII. (109 
Cong. Rec. 9196, 9209.) By this addition the bona fide 
occupational qualification provision previously added 
in the House thereby became simply a specific appli­
cation of this broader provision permitting work classi­
fications based on sex, e.g., “male/female packagers,” 
“policemen/policewomen.” Cf. Blake v. City of Los 
Angeles, 435 F.Supp. 55 (C.D. Cal. 1977) on appeal
to Ninth Circuit; Dothard v. Rawlinson .... U.S........
97 S.Ct. 2720 (1977).

The second policy was that “good faith merit system” 
provisions were also intended to cover the “written 
test” problem, as the legislative history clearly shows. 
(110 Cong. Rec. 13504.) The Tower Amendment 
on testing was subsequently added as the second clause 
of Section 703(h), simply reiterating the broader ex­
emption of good faith merit system already stated by 
Section 703(h).

These provisions establish that employment decisions 
and actions taken pursuant to a good faith system 
are valid unless there is an intention to discriminate.

Thus any system can be expected to impact some 
individual unfairly in some respect. Thus, where the 
classification is rational or bona fide, an unlawful prac­
tice does not exist merely because someone claims

263



to have been unfairly impacted by the system. Interna­
tional Brotherhood of Teamsters v. United States, ....
U.S...... , 52 L.Ed.2d 396, 97 S.Ct. 45 L.W. 4506
(1977); Trans World Airlines v. Hardison, supra.

Conversely where the classification is not pursuant 
to a good faith merit system of classification and test­
ing and unfairly impacts an individual a different rule 
applies. Griggs v. Duke Power, 401 U.S. 424, 91 
S.Ct. 849, 28 L.Ed.2d 158 (1971).

The third policy statement of Section 703(h) was 
expressed by the Bennett Amendment.

The Bennett Amendment is the third and last clause 
of Section 703(h). It is an absolute exclusion from 
the provisions of Title VII. It expressly allows intention­
al discrimination between the sexes; to differentiate 
upon the basis of sex in determining the amount of 
compensation or wages paid or to be paid, is by 
nature an intentional act. But an unlawful discrimina­
tion between the sexes does not occur unless the 
Equal Pay Act is violated by the rate of wage payments 
made.

As this Court has held with respect to the other 
clauses of §703(h):

“Section 703(h) ‘is a definitional provision; as 
with other provisions of §703, subsection (h) 
delineates which employment practices are illegal 
and thereby prohibited and which are not.’ ”

Trans World Airlines Inc. v. Hardison, supra, 
at 45 L.W. 4677.

Thus under Section 703(h) the amount of compen­
sation may differ based on sex but no unlawful employ­
ment practice is therefore shown prima facie under

— 8—

264



—9—

Title VII, since it' expressly states it is not an unlawful 
employment practice to differentiate upon the basis 
of sex in determining the amount of compensation 
or wages paid or to be paid unless prohibited by 
Title 29, §206(d), the Equal Pay Act. (General Elec­
tric Company v. Gilbert, supra; Nashville Gas Company 
v. Satty, supra; EEOC v. Colby College, USDC [SD 
Maine, Civ. No. 75-136-SD]2; International Union 
Electrical Radio & Machine Workers v. Westinghouse 
Electric, USDC N.D. W.Va., Civ. No. 75-62-F(4)).

2. There Is No Duty to “Justify” Differential Amount 
Since No Improper Discrimination Has Been 
Shown.

The statute does not purport to regulate the amount 
of compensation or salary standards as such. It also 
does not purport to regulate differentiation upon the 
basis of sex, as such.

The Government argues that if the amount paid 
or to be paid differs, then this is an “effect” which 
the defendant must “justify” under Title VII. It 
argues that the Pension Plan is a “system” of deferred 
compensation and should be treated as subject to the 
jurisdiction of Title VII and prima facie unlawful be­
cause it has differential “effects.”

We again point out that the Executive Branch pro­
posed to Congress in 1972 that Congress adopt and 
allow expansion into the area of economic control 
upon grounds of a new definition of “discrimination” 
in terms of “systems” or effects”. (Pet. Op. Br. p. C- 
24). Congress rejected that proposal. Congress reaf-

2See Appendix B to amicus brief submitted by Teachers Insur­
ance and Annuity Association.

265



— 10—

firmed in its Conference report that only those adverse 
actions which are statutorily defined by Title VII as 
an unlawful employment practice are prohibited. (Pet. 
Op. Br. C-26 ).

Thus there is no support in the 1964 legislation 
for the Government’s position, which position was flatly 
rejected in the 1972 Congress (see Opening Brief C- 
24-26).

Additionally, the remedies section of Title VII lists 
those employment opportunities that the statute is in­
tended to protect, i.e., where a person is “refused 
employment or advancement or was suspended or dis­
charged”. The denial of seniority, for example, may 
involve an improper denial of advancement. Franks 
v. Bowman Transportation Co., 424 U.S. 747 (1975); 
Trans World Airlines v. Hardison, supra; Nashville 
Gas Co. v. Satty, supra.

The proponents of the bill repeatedly stated that 
the bill was an employment opportunity provision; not 
a redistribution of wealth or “welfare state” statute. 
Even the policy statement of the Act was stricken 
lest it be construed as implying an affirmative duty 
to “redistribute” wealth. Clearly, the intent was not 
to regulate pension programs or benefits with respect 
to sex. Sharing an insurance fund is not the kind of 
employment opportunity reached by the statute.

Respondents argue in effect that the statute requires 
differentiation upon some basis other than sex in de­
termining the amount of wages or compensation to 
be paid or paid. The statute does not so state.

It rather states that differentiation on the basis of 
sex with respect to compensation is not improper. The

266



Bennett amendment is not merely an exception to Title 
VII. Rather it “reenacts” the Equal Pay Act as narrow­
ing the prohibitions of Title VII. As such, the legis­
lative history on Title VII is more than “opinions” 
on an earlier statute; rather it defines the scope of 
Title VII itself.

Such was succinctly stated when the Senate Bill 
was returned to the House and presented there in 
the following terms:

“ [Compliance with the Fair Labor Standards 
Act as amended satisfies the requiremment of the 
title [VII] barring discrimination because of sex. 
. . .” 110 Cong. Rec. 15896 (Pet. Op. Br. C-17).

Moreover, Senators Bennett and Dirksen subsequently 
stated that such was the plain meaning and intent 
of the provision in Title VII.

“Simply stated, the amendment means that dis­
crimination in compensation on account of sex 
does not violate title VII unless it also violates 
the Equal Pay Act.” I l l  Cong. Rec. 13359 (Em­
phasis added).

The Government argues there is “no reason” to 
treat “distinction on account of sex any differently 
under Title VII than one based on race, religion or 
national origin.” (U.S. Brief, p. 16.)

But this involves a policy question on which Congress 
has clearly spoken, treating the two subject matters 
quite differently. In fact when the substitute Senate 
Bill was returned to the House in 1964, congressmen 
reaffirmed that the subject matters were different and 
Congress intended they be treated differently.

— 11—

267



— 12—

The problems of race and sex in employment are 
plainly different as the courts have recognized. Congress 
did not enact a “sex blind” policy into law. Nor have 
any of the cases recognized any such policy. (Baker 
v. California Land Title Co., 507 F.2d 895 (9th Cir.
1974); Willingham v. Macon County, 507 F.2d 1084 
(5th Cir. 1975).) All of the arguments advanced by 
respondents to urge that such be now adopted in this 
forum are specious at best.

The argument of the agency that there is “no reason” 
for the Court not to adopt the legislation they urge 
is improper. Thus the Government argues that the 
risk of certain kinds of cancer may apparently be 
reduced in certain nonsmoking religious groups and 
that the life expectancy may be longer in these groups 
on that account. (U.S. Brief p. 16.) The argument 
is irrelevant.

The statute authorizes an employer to differentiate 
upon the basis of sex in determining the amount of 
wages or compensation to be paid. But it prohibits 
differentiating between SDA members (a religion) and 
others with respect to compensation even if it is true 
that the former can be expected to live longer than 
a person with a different religious identity.

Even in this area the statute does not require that 
the employer totally ignore the practices which may 
be dictated by a religious conviction (Trans World Air­
lines v. Hardison, supra). But with respect to sex it 
expressly authorizes differentiation on that basis of 
sex regarding the amount of compensation or wages 
paid or to be paid.

The agencies imply that the Court needs to be afraid 
that if the Court gives effect to the statute by holding

268



— 13—

that “sex” is treated differently by the statute, then 
other courts will hold that “race, color, religion,” may 
be used as a basis for differentiation is an argument 
that is not only patently ridiculous, but is also contrary 
to the reality.

It is tantamount to saying that if this Court enters 
judgment according to the law in this case, that other 
courts will enter judgments contrary to the law in other 
cases.

The opposite is true.
If this Court did not “read or obey” the law (as 

Chief Justice Marshall held was the Court’s duty), 
(Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 
(1803)) it could hardly expect the lower courts (or 
anyone else) to do so.

In fact this Court has impliedly reaffirmed that such 
is its duty. United States v. Nixon, 418 U.S. 683 
(1974).

Accordingly, if the Court gives judgment according 
to the laws as Congress has declared them, it can 
not only rightly expect the lower courts to do likewise 
but the Court can rightly exercise its own power to 
ensure that the lower courts do precisely that.

The opposite course (as urged by the Government) 
would leave the lower courts subject to no authority 
or certainty of law; but left to guess and gamble 
on what possible future “policy” decisions of this Court 
might subsequently turn out to be in every case that 
might arise.

269



14—

3. The Equal Pay Act Only Prohibits Unequal Rate 
of Wage Payments Where There Is No Other 
Factor Other Than Sex for Rate of Payment Dif­
ferential.

The Equal Pay Act is a section of the Fair Labor 
Standards Act. While the government argues that there 
is no legislative intent shown not to regulate pensions 
under that Act, the contrary is true. The legislative 
history in the 88th and earlier Congresses clearly shows 
that the administration introduced broader bills but 
Congress decided to limit the proposal by making it 
an amendment to the Fair Labor Standards Act and 
so to regulate only “wages” within the meaning of 
that Act.

Further, just as Title VII refers to a “good faith 
merit system,” so also the legislative history on the 
Equal Pay Act demonstrates that:

“A bona fide job classification system will normal­
ly furnish the answer to a claim of discrimination 
[under the Equal Pay Act].” (109 Cong. Rec. 
9196, Pet. Op. Br. C-l.)

Thus employees or applicants could be intentionally 
classified as “male/female packagers” and paid differ­
ently if there was a factor of difference other than 
sex between such classes.

Intentional discrimination between the sexes was au­
thorized in the first instance; it was not forbidden, 
prima jade.

What is forbidden is the act of payment of wages 
to one sex at a periodic rate, less than the rate so 
paid to employees of the opposite sex except where 
such payment is pursuant to a differential based on 
any other factor other than sex.

2 7 0



— 15—

Here the differential rate of payment is made pursu­
ant to a Disability and Pension Plan System which 
withholds contributions from scheduled salary.

The System and its benefits are not subject to the 
Equal Pay Act. The system is itself another factor 
other than sex so far as the payment of a wage rate 
is concerned.

Here, the wage rates paid are different because differ­
ential amounts are retained for purposes of the pension 
system.

These amounts will be paid later—on retirement, 
resignation, etc.

The Equal Pay Act does not require that the amount 
paid be equal at all times.

It rather requires that the plaintiff prove that the 
payment of a lower rate was not pursuant to a differ­
ential based on some other factor other than unequal 
wages to the sexes for the same work (Pet. Op. Br. 
C-20-21).

Respondents object because the rate of wages paid 
are differential between the sexes. But the language 
“except where such payment [of such differential rate] 
is made pursuant to a differential based on any other 
factor other than sex” cannot mean the amount of 
the differential cannot be directly related to sex. If 
that were the “interpretation”, the phrase would have 
no meaning since it would never apply.

The sums withheld from the gross salary scheduled 
result in payments at a different rate, but the “factors” 
are the Pension Plan (not subject to the Equal Pay 
Act) plus differential longevity, and the cost of funding 
for it under such Plan.

271



16—

Since the amounts retained are not a subterfuge 
to avoid the statute, no violation <?f its standards are 
shown.

This of course assumes, arguendo, that the salary 
paid is subject to the Equal Pay Act limitations in 
the first instance.

4. Respondents’ Statistical Arguments Demonstrate 
the Validity of Petitioners’ Position.

Respondents advance mathematical arguments to try 
to show that the pension system is an insufficient 
basis to justify the differential “wage rate” payments.

Like Zeno’s paradoxes, these sophistries only create 
mathematical illusions completely at variance with ob­
jective observable reality.

The underlying legal supposition of all such argu­
ments is that petitioners have not (respondents say) 
made a “sufficient” showing to “justify” the difference 
in the amounts paid as wages. However, there is no 
requirement for justification, especially when respond­
ents have conceded the factors of difference are actual.

Where the fact is actual, there is no basis for “any 
plea that in fixing and determining the amount . . ■ 
[the Petitioner] was actuated by any want of good 
faith.” Brawley v. United States, 96 U.S. 168, 173 
(1877).

We do address the mathematical arguments, however, 
to show that when the sophistry is brought to light 
it demonstrates the strength of the merits of petitioners’ 
position.

272



— 17

The California Supreme Court has had occasion 
to point out the ease with which mathematical argu­
ments may cast a spell over and mislead the trier 
of fact. People v. Collins, 68 Cal.2d 319, 66 Cal. 
Rptr. 497, 438 P.2d 33 (1968); Tribe, Trial by Mathe­
matics: Precision and Ritual in the Legal Process, 
84 Harv. L. Rev., p. 1329 (1971). That is something 
that Zeno demonstrated long ago.

The basis for respondents’ argument is a graph which 
was introduced in evidence (apparently without any 
opportunity for cross-examination) in Henderson v. Ore­
gon, 405 F.Supp. 1271 (D. Ore. 1976), appeal dock­
eted (CA 9, No. 76-1706, March 30, 1976). It was 
attached to the opposition briefs below. Even the ma­
jority below did not accept the arguments. The amici 
purport to show that assuming3 100,000 men and 100,- 
000 women at age 65, a “matching” of deaths indicates 
that about “80% ” have “common death ages”.4

3As in People v. Collins, supra, this involves an unwarranted 
statistical assumption and leads to incorrect conclusions. There 
are in fact more women alive after age 65 than men after 
that age. The assumptions arbitrarily exclude this fact. Further, 
“matching” or “pairing” deaths of women and men between 
ages 65-70, for example is somewhat misleading. Given an 
assumption of 5 years difference in life expectancy (as indicated 
by the graph in the Henderson case, supra), the proper com­
parison would be between women age 65-70 and men age 
60-65, i.e., 5 years earlier. Finally, the difference in life ex­
pectancy is not a constant “5-year” difference but varies at 
each age. In other words “life expectancy” is an actual factor 
related to age and to sex, but not to either age or sex alone.

4Various amici present the same idea with differing percentage 
figures. But the idea seems to have been first proposed by Pro­
fessor Barbara Bergmann and presented by Women’s Equity 
Action League (Amicus Curiae for respondents) to the Depart­
ment of Labor by Dr. Norma K. Raffel at hearings on contract 
compliance held on September 9, 1974. At that time the “over­
lap” of 1000 men and 1000 women was said to be 68.1%. 273



18—

The figure of “80%” and the phrase “common death 
age” are ambiguous. They appear to mean that relative 
length of life may be shown thus:

Shorter
Lives

Men 20%
Women

Common Longer
Life Period Lives

80%
80% 20%

The conclusions to be drawn are:
1. 20% of the shorter-living men must pay for 

the pensions of 20% of the longer-living women 
on a “unisex” approach; and

2. on a “unisex finding” basis, 20% of the men 
receive less than zero benefit from a “unisex 
funding” system, only 80% of the men receive 
benefits commensurate with their funding; on 
the other hand 80% of the women receive bene­
fits commensurate with their funding, 20% of 
the women receive benefits greater than their 
funding; and

3. every woman is guaranteed that she shall outlive 
some man by five years (i.e., while every woman 
will not live to the average age of women, 
every woman will outlive the “corresponding” 
man by five years and the average death age 
of men is 5 years less than the average death 
age of women; and

4. of the total benefits paid to 100,000 men and
100,000 women 20% of the cost of funding 
benefits ostensibly for men is thereafter applied 
to pay benefits collected by women; and

5. benefits can be paid to 100,000 men and 100,- 
000 women only if a substantial number of 
additional men are part of the plan and die 
before receiving any benefits at age 65, since274



19

by hypothesis, the average life expectancy differ­
ence of all women is 5 years longer than the 
average life expectancy for men and the only 
men shown on the table are those who live 
to age 65.

The brief of American Council of Life Insurance 
(pp. 47-49) details the fallacies.

The equities of funding are that if a male and 
a female buy an annuity they each gamble that it 
will be sufficient to support them for their entire life 
expectancy. Ideally, the contributions they each make 
to purchase an annuity should be sufficient for that 
purpose. Neither should be left to live without suf­
ficient funding to cover the expected retirement years, 
nor be asked to fund a life expectancy that he or 
she will not reach.

Where an annuity is based upon sex-differentiated 
actuarial tables the male and female have “equal oppor­
tunity” of living to the life expectancy funded for 
each. Where a so-called “sex-neutral” or “unisex” table 
is constructed, the male funds a life expectancy longer 
than his true life expectancy. His “opportunity” for 
collecting what he has purchased is lessened. On the 
other hand, the female’s “opportunity” for collecting 
more than she has purchased (including a portion 
of the male’s funding) is increased. Such is the basic 
inequity of respondents’ proposal.5

5A simple example of the effect of unisex can be posited. If a 
hospital had 100 nurses of which but one was male, a retirement 
system set up by the employer for the nurses on a unisex 
basis would require that the lone male contribute at a rate 
which was 99% of the female rate. The lone male would 
be penalized to benefit 99 females. Respondents’ argument sug­
gests precisely this.

This example also illustrates that the sex of an individual must 
be taken into account in funding and in benefits. Under a “uni- 

(This footnote is continued on next page) 275



— 2 0 —

Respondents suggest that your petitioners could use 
a “multi-factor” table to measure contributions and 
benefits. As we stated in our opening brief, the inclusion 
of other factors would not make sex a valid basis 
if it was not to begin with. Nor does the omission 
of other factors make a differentiation on this single 
most significant basis improper.

Moreover, the addition of these other factors would 
probably lead to less accurate funding. Smoking, drink­
ing and obesity are within the control of the individual. 
Obviously, an annuitant who wanted the lowest rate 
would start smoking, drinking and be overweight when 
he buys his annuity and then quit such practices. 
In an insurance context, such factors make sense. Indi­
viduals want to live longer and want to get a lower 
insurance rate. Public policy encourages good health. 
In an annuity context, they are nonsense. First, because 
the annuitant does not want to both die early and 
get a lengthy annuity. Second, because the risk of 
non-smoking, non-drinking and non-obesity is on the 
insurer.

Respondents suggest that since petitioners “equalized” 
the women’s contributions down to the male rate in 
1975, the Plan has been operating, and there are no 
problems.

They suggest that such is a reason to hold that 
there was a violation before the change and therefore

sex” approach, if one of the 99 females resigns and a second 
male employee takes her place, the contribution rate received 
from all employees decreases since the potential liability of the 
plan decreases. On the other hand, if the lone male retires, and 
a female employee takes his place, the contribution rate goes 
up, not only because another female may be funded for, but 
also because the liability of the plan is less than it would have 
been had one of the 99 females retired rather than the lone male 
with a shorter life expectancy.

276



—21

this Court should order permanent “unisex” Plan opera­
tion and refund of back contributions. The argument 
is a transparent attempt to have the Court again set 
policy, by implying that there will be “no harm” in 
so doing because, they say, the Plan has not suffered. 
They wrongly state that equalization was accomplished 
by use of a so-called “sex neutral” table. (Resp. Br. 
21.) That is a deliberate attempt to mislead the Court. 
The Plan is still operated with the use of sex-differen­
tiated actuarial tables. In compliance with the state 
law (Gov. C. §7500), your petitioners lowered the 
contribution level of females to the male level. The 
Department has since contributed the difference.

Of course, other facets of the Plan, such as male 
contributions, employer contributions, joint and survi­
vor annuity options, vested rights pensions and so forth 
are still measured and administered based upon sex- 
differentiated mortality tables.

The briefs of the supporting amici and the study 
conducted by the Equal Employment Opportunity Coor­
dinating Council as previously noted indicate the wide­
spread potential damage of the lower court decision. 
We have also cited to the court some of the suits 
seeking equality and return of contributions on a local 
and national level.

Even the amici who state that their plans are equal 
in contributions and benefits, probably use separate 
mortality tables when it comes to measuring joint and 
survivor annuities.

Finally, while the statute does not require a showing 
“in equity” as a reason for differentiating upon the 
basis of sex with respect to the amount of wages 
or compensation paid, or to be paid, we would mention 
the following: 277



— 2 2 —

1. If the employer had established no system and 
withheld no contributions for pensions, females would 
have to pay considerably more for the same periodic 
benefits as males and would also be deprived of the 
higher 110% matching benefit on the higher amount 
they contribute not to mention funding of formula 
benefits.

2. It is a social fact that women (particularly 
married women with children) often enter the labor 
market later (after the children are grown) and retire 
earlier in order to retire together with husbands who 
are usually older. The plan provides a return of contri­
butions or a “vested rights” benefit based only on 
contributions of employer and employee if employee 
so chooses.

We do not offer this as a matter of proof in legal 
justification for the system established or for a “viola­
tion”. We mention it to point out that there are many 
social factors which can best be met by local govern­
ment determinations.

3. The order of the courts below deprived some 
women of a substantial benefit.

Since the “vested rights” pensions for employees who 
retire after making more than one year’s contributions 
but less than five (or who leave the Department and 
defer their retirement until a late date) is based on 
the employee and employer 110% matching contribu­
tions, the courts’ order reducing female contributions 
necessarily also reduces the matching amount and there-

278



—23'
fore the amount of pension such women might otherwise 
receive and some of the plaintiff women who have al­
ready retired will be adversely affected by the court 
order.6

II
1972 LEGISLATION ON TITLE VII AND 1974 PENSION  

LEGISLATION DEMONSTRATES INTENT NOT TO 
REGULATE GOVERNMENTAL PENSION SYSTEMS 
OR TO REQUIRE “UNISEX” POLICIES.

The legislative history of the years since 1963 indi­
cate two things: first, Congress did not intend to pro­
hibit the use of sex-differentiated actuarial tables in 
establishing plan benefits; second, Congress did not 
intend to regulate local government pension systems.

It has always been accepted procedure in retirement 
and annuity plans to measure contributions or benefits

^The government’s brief urges that the Department sometimes 
pays more for men than for women. It bases this contention 
on an answer to an interrogatory concerning six females com­
pared with six hypothetical males described by certain peculiar 
assumptions stated in the Interrogatory. The fact is that prior 
to 1972, women could retire at age 60, at full pension; 
men were required to work until age 65 to receive full 
pension. In the three of the six hypothetical comparisons 
to which the government refers it was assumed (as dictated 
by the Interrogatory) that the hypothetical men had retired 
before age 65, but at full pension. This also dictated an 
assumption of a longer life expectancy for such hypothetical 
males than if they had retired at 65. It also dictated an 
assumption of full pension payable beginning before age 65 
rather than one reduced because of early retirement.

Thus the Interrogatory dictated that the hypothetical contribu­
tions made by the hypothetical male employee during his employ­
ment would have been lower (and the Department’s ultimate 
contributions therefore higher) by reason of the fact that he 
would be contributing as if he were going to retire at age 65, 
and then actually retire before that time on full pension. Since 
the Interrogatory itself asked for figures on an “apples and 
oranges” comparison a valid conclusion cannot be drawn from 
the figures given in response to the questions as asked. 279



—24—

by the use of sex-differentiated actuarial tables. Private 
annuities were similarly funded.7

Nothing in the legislation indicates disapproval of 
such practices. To the contrary, the legislative history 
shows such systems are not regulated and consideration 
of costs in relation to longevity benefits authorize paying 
unequal wages. (See Pet. Op. Br., C-l-18.)8

It was not until 1974 that there was a change in the 
practice of the Social Security System cited by Senator 
Humphrey in his colloquy with Senator Randolph (110 
Cong.Rec. 13663-4) of allowing earlier retirement op­
tions for women than for men. P.L. 92-603; 86 Stat. 
1329, Social Security Amendments of 1972. We do 
not debate the wisdom of such options9 herein but 
merely cite them to indicate that if Congress intended 
eradicating the use of sex-differentiated actuarial tables 
as an unlawful employment practice, it would certainly 
have changed rather than continue to approve the 
practice of earlier retirement options.

Until 1972, the provisions of Title VII (and the 
Equal Pay Act) did not apply to local government,

7See amicus curiae brief of American Council of Life In­
surance for list of state laws differentiating on the basis of 
sex in connection with retirement, annuities and insurance. Even 
Jury instructions commonly award different actuarial values for 
life expectancies.

8Other federal agencies than the EEOC continue to accept 
the use of sex-differentiated tables as a basis for measuring 
retirement benefits. 41 CFR §60-20.1 (c) p. 287, Office of 
Federal Contract Compliance; 29 CFR §800.116(d) Depart­
ment of Labor; 40 Fed. Reg. 24135 (1975) Department of 
Health, Education and Welfare.

9We do note that the cases dealing with mandatory earlier 
retirement for females are inapposite because such practice denied 
an employment opportunity to one sex to continue in employ­
ment, and did not involve differentiation regarding compen­
sation. Cf. Nashville Gas Co. v. Satty, supra.

280



— 25—

and this Court has held that the Fair Labor Standards 
Act does not apply. (National League of California 
Cities v. Usery, 426 U.S. 833, 845, 49 L.Ed.2d 245, 
253.) It is also questionable that Title VII applies 
to private insurance plans.10

The 1972 decision not to define discrimination in 
terms of “systems” reflects determination of Congress 
not to be involved in local retirement plans. Such 
is surely based on Congress’ decision that it is unneces­
sary to invade areas of local control best handled by 
the people directly concerned. Thus, in the Department’s 
Plan, the Respondents themselves participated in the 
administration. One of the named plaintiffs was a mem­
ber of the Board of Administration. (App. 90.)

In the 1972 legislation, if Congress had intended 
to change its prior approach and regulate pension sys­
tems or prohibit differential contributions and benefits, 
it surely would have done so. After all, in 1968, 
the second circuit expressly held that females could 
receive greater benefits than males under the Social 
Security Act, and that such provisions would not violate 
the Civil Rights Act of 1964. (Gruenwald v. Gardner, 
390 F.2d 591, 593 (2d Cir. 1968).)

Further, in 1974, Congress for the first time enacted 
legislation where it clearly intended to become involved 
in pensions. That legislation and its history demonstrate 
both that Congress was not concerned about the use 
of sex-differentiated actuarial tables and that Congress 
did not want to regulate Governmental plans.

10Except as ERISA may apply, it is questionable that all 
private insurance plans are subject to Title VII, since in those 
states with regulation of the business of insurance, insofar as 
the Government is concerned, insurers are subject only to such 
state regulation. McCarran-Ferguson Act (15 U.S.C. § 1012(b)); 
F T.C. v. National Casualty Co. (1957) 357 U.S. 560, 562.

281



-26—

The comprehensive nature of the Employee Retire­
ment Income Security Act (“ERISA”), the careful 
attention to detail in the regulation of vesting, funding, 
actuarial responsibilities and insurance of benefits make 
it apparent that if Congress ever intended to mandate 
identical contributions and benefits in retirement plans 
(assuming mathematical equality were possible) it 
would surely have done so in this particular act.

The fact that the Act specifically deals with discrim­
ination problems under the tax qualification provisions, 
prohibiting discrimination in favor of higher paid em­
ployees and management indicate Congress’ intention 
not to regulate the practice of funding separately for 
males and females based on long established actuarial 
principles. (§401a(4) IRC (1954), 26 U.S.C. §401a 
(4 ).)

Similarly roll-over provisions of ERISA permit an 
employee to leave one employer, and transfer both 
his and the employer’s retirement contributions to an 
individual retirement account or to a different retire­
ment plan. (Act, Section 2002(b), IRC (1954) Section 
408, 26 U.S.C. §408.) There is no provision that 
such roll-over prohibits the transfer of higher contribu­
tion packages for females than for males. Under Re­
spondents’ theory, Title VII would prevent females 
from transferring higher benefits than males. Alterna­
tively, a unisex approach would, of course, lead to 
females and males receiving different annuities upon 
reinvestment privately of their returned contributions. 
We are unaware of any provision of ERISA which 
requires identical contributions and benefits.

In the legislative history, the House was concerned 
about increase in pension costs of the legislation.



In addition, in connection with ERISA, House Report 
No. 93-533 states:

“While modest cost increases are to be anticipated 
when the Act becomes effective, the adverse impact 
of these increases has been minimized.” (Em­
phasis added.) 3 U.S. Code Cong. & Adm. News, 
H.R. 95-533, p. 4639.

In the House Report at page 4651 the Education 
and Labor Committee commented on the vesting stand­
ards of ERISA:

“The exception for plans which provide 100% 
full vesting upon plan entry is based on the fact 
that such plans, like the TIAA-CREF plan for 
college teachers, provide earlier vesting in larger 
amounts than provided under the bill, and requir­
ing such plans to install earlier membership re­
quirements would impose burdens well beyond 
the minimum standards approach intended by the 
Committee, and might compel such plans to sacri­
fice immediate full vesting on plan entry.” (Em­
phasis added.)

Such attention to the individual provisions of the 
excellent TIAA-CREF system demonstrates an intention 
not to disturb that system and systems like it.

No goal was sought to provide greater benefits under 
ERISA for one sex than another. On the other hand, 
the serious effect of mandating identical periodic con­
tributions and benefits as urged by respondents herein 
is well documented in the amicus briefs of Teachers 
Insurance and Annuity Association of America and 
College Retirement Equities Fund (TIAA-CREF), the 
City of New York and New York State Teachers 
Retirement System. (TIAA-CREF Br. p. 24, City of

- 2 7 -

283



New York Brief p. 5, N.Y. State Teachers Brief 
P- 2 .)11

The Act, while clearly concerning itself about the 
vesting of benefits (a matter which involves loss of 
pension benefits during the first years of service in 
the private sector) involves a studied determination 
not to attempt to set benefit levels for any employees. 
Had the Act or the legislative history mandated disre­
gard of sex-differentiated actuarial tables and pension 
benefits and contributions measured thereby, Respond­
ents and their amici would have pointed this out. 
All they have pointed to is that the statute while 
mandating actuarial soundness does not mandate dis­
regarding greater female longevity and the concom- 
mitant variation in pension benefits between the sexes.

In considering the cost of vesting provisions under 
Senate Report 93-127 (3 U.S. Cong. & Adm. News ’74, 
p. 4884), the Senate Committee on Labor and Public

— 2 8 —

11In addition to the above, other systems face liability of 
varying degrees. For examp1 e, the County of Los Angeles 
presently has two similar suits to the within lawsuit. (Rosina 
Smith v. County of Los Angeles (C.D. Cal. 74-253); Bailey v. 
Los Angeles County (75-3863 C.D. Cal.).) Contrary to the 
generalized statement of the Society of Actuaries, a Washington 
based firm (Soc. Act. Br. p. 18), until January 1, 1977, the 
entire system of retirement Plans covered by the County Em­
ployees Retirement Law of 1937 (California Government Code 
§§31620-31622, 31676.1) which involves the employees of 
twenty California Counties (the County of Los Angeles alone 
has some 70,000), had both unequal contributions and unequal 
benefits in their systems. And, while those under the 1937 Act 
equalized contributions and benefits as of January 1, 1977, 
they still face lawsuits seeking returns of contributions and 
changes in benefits, and there are other California public 
entities similarly situated. See also expected increase in costs 
projected by Equal Employment Opportunity Coordinating Com­
mittee ( “EEOCC”) of $60 billion for “equalizing” under their 
proposed legislation BNA Daily Lab. Rep. No. 80, April 23, 
1976 at A-12; Id. No. 122, 6-23-76 at A-16-17, E-l to 3.

284



- 2 9 -

Welfare had before it an actuarial study prepared by 
Donald S. Grubbs, Jr., FSA. That study states, at 
page 4885:

“Private pension plans contain endless variety. 
They contain variety in their plan provisions, in­
cluding existing vesting provisions, in the extent 
of their funding, in the distribution of employees 
they cover by age, sex, and years of service in 
their rates of termination of employment of plan 
participants, in rates of investment return on their 
funds, and in many other factors.” (Emphasis 
added.) (Cf. Society of Actuaries Brief.)

If the Congress had intended that “sex” be ignored 
as to the differences in benefit costs and measuring 
the expense of differing benefits because of life expec­
tancy differences, this study would have become totally 
useless. (See 3 U.S. Cong. & Adm. News ’74, pp. 
4908, 4909 re: Committee’s actuarial reporting.)

Under “STATEMENTS BY LEGISLATIVE 
LEADERS” the Honorable All Ullman, ranking major­
ity member of the House Ways and Means Committee, 
stated:

“It is axiomatic to anyone who has worked for 
any time in this area that pension plans cannot 
be expected to develop if costs are made overly 
burdensome, particularly for employees who gen­
erally foot most of the bill. This would be self- 
defeating and would be unfavorable rather than 
helpful to the employees for whose benefit this 
legislation is designed. For this reason, we have 
been extremely careful to keep the additional costs 
very moderate.” (3 U.S. Cong. & Adm. News ’74, 
p. 5167.)

285



— 3 0 —

Of course, if the legislative intent had been to 
mandate identical treatment although it costs more 
there would have been no need for the EEOCC or 
the legislation it proposed. Even the legislation pro­
posed does not eliminate sex-differentiation in the meas­
urement of joint survivor annuities. (See BNA Daily 
Lab. Rep. No. 80, April 23, 1976, A-12; Id. No. 
122, 6-22-76 at A-16 to 17, E-l to 3.)

The Courts have held that ERISA was intended 
to preempt local law in the pension area. (Hewlett 
Packard v. Barnes, 425 F.Supp. 1294, 1297 (N.D. 
Cal. 1977); Wayne Chemical, Inc. v. Columbus Agency 
Service Corp., 426 F.Supp. 316, 320 (N.D.Ind. 1977); 
Hum v. Retirement Fund Trust, 424 F.Supp. 80, 82 
(C.D.Cal. 1976); Assam v. Harnett, 414 F.Supp. 473, 
474 (S.D.N.Y. 1976) aff’d 553 F.2d 93.) Surely, such 
preemption by this law makes it clear that Congress 
did not intend to override local laws concerning sex 
differentiation in contributions and benefits.

Congress exempted the local governments from the 
provisions of ERISA. (29 U.S.C. §1003(b )(1 ) .)  While 
it has bills under consideration to regulate such plans, 
it has chosen not to adopt any. This caution comports 
with the Court’s decision that regulation of local govern­
ment wages under the Fair Labor Standards Act is 
violative of the Tenth Amendment to the Constitution. 
(National League of Cities v. Usery, 426 U.S. 833, 
845, 49 L.Ed.2d 245, 253; on local control see also 
Oregon v. Mitchell, 400 U.S. 112, 128 (1970).)

286



•31—

To administer ERISA, Congress chose two agencies 
which had theretofore recognized the use of sex- 
differentiated actuarial tables to provide for separate 
contributions and benefits in retirement system (the 
Department of Labor and the Internal Revenue Serv­
ice). While arguably the Pension Benefit Guarantee 
Corporation (“PBGC”) might wish to insure up to 
the PBGC “maximum benefits” for males and females 
in an identical fashion (41 Fed. Reg. 6194-95) 
nevertheless, when it comes to insuring sufficiently fund­
ed plans, the PBGC requires the use of sex-differentiated 
actuarial tables. This is clear government recognition 
that pension plans cannot be soundly administered on 
a “single-sex” basis. The EEOC would use this single 
statement by the PBGC on insuring benefits to boot­
strap the EEOC into power to regulate local pensions 
systems and the benefits payable thereunder where Con­
gress did not empower it to act at all. Further, since 
Congress has seen fit not to regulate pension systems of 
local government, surely to attempt to do so under Title 
VII violates the local sovereignty. (National League 
of Cities v. Usery, supra, pp. 848-849.)

There is no warrant under the 14th Amendment 
for such regulation.

287



-32—

III
GUIDELINES AND BULLETINS MAY NOT BE GIVEN 

EFFECT AGAINST A LOCAL GOVERNMENTAL 
ENTITY SINCE THE ADMINISTRATIVE PROCEDURE 
ACT WAS ADOPTED AFTER SKIDMORE v. SWIFT 
AND THE AGENCIES WERE GIVEN NO JURISDIC­
TION WITH RESPECT TO LOCAL GOVERNMENT 
ENTITIES.

One of the amici supporting Respondents has can­
didly admitted that the administrative bulletins and 
guidelines are “an internally inconsistent morass.” 
(U.A.W. Br. p. 53.)

The President of the United States has recently ex­
pressed a similar view of the entire administrative field. 
He proposes to order that all administrative pronounce­
ments be “as simple and clear as possible . . . and 
should not impose unnecessary burdens on the economy 
. . . or on state and local governments.” 42 Fed. 
Reg. 59743, November 18, 1977.

The President’s goal and policy is noble, necessary 
and proper.

If the Court can give weight to pronouncements 
of the executive branch not binding under the Ad­
ministrative Procedure Act, then this goal and policy 
can and should be given full force and effect by judicial 
action in the instant case. This can best be done 
by holding that none of the administrative bulletins 
or guidelines heretofore issued are entitled to any weight 
against Petitioners in a de novo proceeding.

There are other major reasons requiring that that 
be the holding. Such will greatly assist in judicial 
administration of law as we shall show.

We point out first that in 1944, this Court was 
similarly faced with an administrative morass. It there­

288



- 3 3 -

fore laid down guidelines for the lower courts as to 
what factors such courts should consider in deciding 
what effect (if any) to give to administrative pronounce­
ments in a given situation. Skidmore v. Swift & 
Co., 343 U.S. 134 (1944).

Thereafter, Congress acted on the subject. It enacted 
the Administrative Procedure Act. That Act was adopt­
ed after more than ten years of many comprehensive 
studies.

President Roosevelt had warned that there was an 
issue of Constitutional proportions, that growing powers 
of administrative agencies

“who perform administrative work in addition to 
judicial work, threatens to develop a ‘fourth branch’ 
of the Government for which there is no sanction 
in the Constitution.” House Report No. 1980, 
May 3, 1946; U.S. Code, Cong. Service 79th 
Cong. 2nd Sess., p. 1195. (1946).

The legislative history of the Administrative Proce­
dure Act shows that agencies that had power to regulate, 
opposed any regulation of themselves. Aversion by 
the agencies to limitation on their exercise of real 
or pretended power continues to the present day. 
(Davis, Administrative Law, 3d Ed., p. 68.)

Congress passed the Administrative Procedure Act 
despite such administrative opposition. It specified that 
Act was intended to have “across-the-board” applica­
tion: “The law must provide that the governors shall be 
governed and the regulators shall be regulated, if our 
present form of government is to endure.” House Re­
port, supra, at 1198.

Accordingly the Act provided that no sanction shall 
be imposed or substantive rule issued except (1) within

289



■34—

the jurisdiction delegated to the agency and (2) as 
authorized by law (Sec. 9, Ch. 324, Pub. Law 404, 
U.S. Code Cong. & Adm. News, p. 234.)

Thereafter, when Congress passed the Equal Pay 
Act in 1963 and Title VII in 1964, it did not author­
ize any agency to issue any rules or delegate any 
jurisdiction to any agency. Jurisdiction means, of course, 
authority or power to speak the law to the facts.12 
The agencies were given no such power. In 1972 
Congress again determined not to delegate any such 
power to the agencies.

The legislative history of Title VII and the Equal 
Pay Act conclusively shows that Congress specifically 
intended that the agencies not have any such authority 
or jurisdiction. Both agencies have implicitly recognized 
they have no such power. The earliest guidelines of 
the EEOC (1966) were issued in the form of what 
the EEOC “advocates,” “encourages” and “recom­
mends” that employers do. EEOC “Guidelines on Em­
ployment Testing Procedures, Sept. 21, 1966, 2 CCH 
Empl. Prac. Guide f  16,904 (1967). The mentor of 
such guidelines has frankly acknowledged that the 
EEOC issued “ ‘guidelines’ since it had no substantive 
rule-making power.” Blumrosen, Administrative Crea­
tivity: The First Year of the Equal Employment Op­
portunity Commission, 38 Geo. Wash. L. Rev. 694 
(1970). Deferring to such guidelines is thus abdication 
of responsibility and contrary to law.

Of course, many of such guidelines and bulletins 
were issued before Title VII even applied to local 
governmental entities.

I2“This word is composed of jus and dictio, juris dictio, 
or a speaking and pronouncing of the law”, The Federalist, 
No. 81, p. 531, (Mod. Lib. Ed.)

290



- 35-

In 1972, in extending Title VII to local governmental 
entities, Congress did not grant quasi-legislative author­
ity to the agency or extend EEOC jurisdiction over 
such local governmental entities. On the contrary, both 
houses of Congress determined that in regard to such 
local governments, the public interest would be repre­
sented in such cases not by the EEOC but by the 
Attorney General. In a similar way, Congress divided 
the power which was originally proposed to be given 
to the EEOC among several agencies. The reason, 
simply, is that while separation of power may lead 
to diversity, it also tends to protect liberty by lessen­
ing the corrupting effect which power has.

Thus, while Skidmore, supra, speaks of pronounce­
ments of “the office representing the public interest 
in its enforcement” before the Courts (343 U.S. at 
138) the office representing the public interest before 
the courts where a local governmental entity is involved 
is not the EEOC but the Attorney General. Congress 
specifically intended that distinction.

Accordingly, even under the Skidmore rationale none 
of the pronouncements of such agencies could have 
any effect against a local public entity.

Moreover, the passage of the Administrative Proce­
dure Act after the Skidmore decision clearly limits 
the authority of Skidmore so that no effect may be 
given guidelines and bulletins against a public entity 
in a de novo or other judicial proceeding under Title 
VII.

The administrative morass at the time of Skidmore 
required guidance for the lower courts as to what 
factors they should consider in determining what legal 
effect (if any) they should give to a vast variety 
of administrative pronouncements. 291



— 36-

But when Congress thereafter, pursuant to its express 
constitutional authority to make “all laws necessary 
and proper” for carrying into execution “all powers 
vested in the Government or in any department or 
officer thereof,” (Const. Art. I, § 8 Cl. 18, Pet. Op. 
Br. p. A -l) exercised that power to enact the Adminis­
trative Procedure Act as an “across the board” statute, 
a radically different state of affairs is presented than 
the situation presented in Skidmore v. Swift.

Thus this Court has recently held that rules duly 
issued pursuant to a statutory grant of authority are 
binding on all three branches of government. United 
States v. Nixon, supra, p. 696. Given the fact that Con­
gress has the power to make all laws necessary 
and proper for carrying into effect all powers of every 
department of Government, that holding was surely 
correct.

But if a regulation issued pursuant to procedures 
of the Administrative Procedure Act is binding on 
all three branches of government, the Administrative 
Procedure Act itself is so binding a fortiori.

In other words, if Congress has exercised its constitu­
tional power to declare what shall be done by agencies 
who desire to issue pronouncements which they have 
jurisdiction to issue in interpreting a statute, the courts 
may not directly, or in effect, lay down other stand­
ards for the agencies, or confer power to issue other 
kinds of pronouncements interpreting the law and give 
legal effect to the pronouncements so issued.

The Administrative Procedure Act provides that no 
sanction shall be applied except for rules issued in 
accordance with the procedures laid down in that Act. 
The other two statutes before the Court (Title VII

292



— 37—

and the Equal Pay Act) specifically withheld from 
the agencies any authority to issue any such rules.

The legislative history also shows that bulletins or 
guidelines issued by an agency should not have any 
weight as evidence against defendant.

If the Court would give either any injunctive or 
evidentiary sanction to any “guideline” or “bulletin” 
issued by any such agency, to rule against Peti­
tioners as did the courts below, this would in effect be 
holding that the Administrative Procedure Act is not 
binding on the agencies or the courts, that the juris­
dictional limitation of Title VII (which requires de 
novo determinations by the District Court) is not bind­
ing on the courts below, that the Congressional will 
to withhold quasi-legislation and quasi-judicial power 
from such agencies need not be given effect, but may 
be disregarded.

Such a holding would be nothing less than an 
amendment of the Constitution itself—Congress would 
no longer have the power to make all laws for carrying 
into execution all the powers of government. Instead, 
the administrative agencies would make “laws,” or more 
accurately use the “laws” to carry out such policy 
decisions as the agencies might make or such political 
or economic purposes they might elect.

No longer would the people have an open forum 
[i.e. Congress) in which to petition the government 
for redress of grievances, nor would policy decisions 
be made by persons directly answerable to the people.

In a given policy controversy, many persons (such 
as the men under Petitioners’ Plan and their non- 
working wives) are not represented before the Court. 
There is always a danger that they may be permanently 293



■38—

foreclosed not only from “their day in court” but 
also from “their day” in any other forum. This is 
a point addressed by no less authority than President 
Lincoln on no less an occasion than his first inau­
gural.13

By maintaining Congress as the proper forum for 
resolving competing legislative policy views the force 
and violence of “faction” may be lawfully restrained.14 
This is a problem with which the founding fathers 
were thoroughly familiar and which they acted to ensure.

If, for example, an ideological faction can through 
an agency, use a law of Congress to effect its own 
economic policy decisions (instead of being required 
to be faithful to the law itself) then the will of Congress 
(as expressed in that law) is no longer paramount 
and there is no restraint upon that faction.

The point is not academic.

13“At the same time, the candid citizen must confess that if 
the policy of the Government upon vital questions affecting the 
whole people is to be irrevocably fixed by decisions o f  the 
Supreme Court, the instant they are made in ordinary litigation 
between parties in personal actions the people will have ceased 
to be their own rulers, having to that extent practically resigned 
their Government into the hands of that eminent tribunal.” 
Abraham Lincoln, First Inaugural Address.

14The Federalist Nos. 9, 10 (Mod. Lib. Ed.):
“By a faction, I understand a number of citizens . . . 

who are united and actuated by some common impulse or 
passion. . . .” (Id. p. 54.)

“If a faction consists of less than a majority, relief 
is supplied by the republican principle, which enables the 
majority to defeat its sinister views by regular vote. It 
may clog the administration, it may convulse the society; 
but it will be unable to execute and mash its violence 
under the forms of the Constitution” (Id. p. 57.)

“Theoretic politicians . . . have erroneously supposed 
that by reducing mankind to a perfect equality in their 
political rights, they would, at the same time, be per­
fectly equalized and assimilated in their possessions, their 
opinions, and their passions.” (Id. at pp. 58-59.)

294



— 39

In its brief the EEOC frankly urges that its positions 
or perceptions “evolve” (i.e. change) and that it or 
the courts not only can but should cause the law 
to “evolve” according to the EEOC’s changing percep­
tions and positions. (U.S. Br. p. 31 fn. 27). In fact, 
in the same context, EEOC cites the 1972 Senate 
Report which is almost a verbatim copy of the House 
majority report on this point. These reports were reject­
ed by the joint conference action. (Pet. Op. Br. C- 
24-26.)

The report said “experts” now perceived problems 
differently. But Congress did not. And Congress duly 
decided not to change the statute to define unlawful 
discrimination to suit such perceptions or to permit 
the “experts” to exercise that authority. In fact its 
Conference action expressly reaffirmed the jurisdictional 
limitations for this reason. (Pet. Op. Br. Ex. C-26.)

The issue, moreover, appears not to be personal 
discrimination, but economic regulation per se.

Respondents similarly rely on the House Committee 
Report of the rejected 1972 bill to advance their posi­
tion. But the bill this report refers to was rejected. 
Hence this is simply a call on this forum to legislate 
what the legislative forum did not.

Further, another Amicus urges that since the “Esch 
Amendment” failed, this means Congress intended to 
regulate pensions and differentiations based on sex. 
(U.A.W. Br. p. 41.)

The opposite is true. The Esch Amendment was 
proposed to restrict the application of the broad prohibi­
tions of a proposed House Bill if that broad proposal 
should not be rejected. Since that broad prohibition 
was rejected, the Esch restriction was unnecessary since

295



existing law does not regulate pension systems or differ­
entials based on sex.

The point again is that having proposed broad legisla­
tion concerning pension systems and sex discrimination 
and having lost in Congress, the EEOC thereupon 
issued “sex guidelines” in 1972 and has sought in 
a judicial forum to have Title VII so amended.

Here the EEOC (the agent) is independent of the 
executive branch, and so is called an independent agen­
cy, but it is not independent of Congress. The agent’s 
only proper recourse is to its own principal. To seek 
a change of the terms of its agency in another forum 
than Congress is to fail to be faithful to the expressed 
will of its own principal.

“. . . Agency power . . . carries with it the responsi­
bility not only to remain consistent with the governing 
legislation . . . but also to employ procedures that 
conform to the law.” Morton, v. Ruiz, 415 U.S. 199, 
232 (1973).

Similarly, this Court has on several occasions reject­
ed guidelines of the EEOC either expressly or by 
implication of this Court’s holding on a particular 
point. The response of the EEOC to the Court’s rul­
ings has never been (so far as we are aware) to 
amend its guidelines to conform to such rulings in 
order that the public be accurately informed.

Rather the EEOC has either ignored this Court’s 
rulings or has issued new pronouncements which nullify, 
in effect, the holdings of this Court.

Even the judiciary can be misled by such agency 
pronouncements as in the instant case for example. 
And when the lower courts are told by the agency

—40—

296



■41

that they must “defer” to the agency, it is necessarily 
difficult for such courts to hear the voice of this 
Court, to which they are constitutionally subject.

Examples of EEOC action follow:
1) Compare 29 C.F.R. § 1607.3 (EEOC definition 

of “discrimination” as involving “protected classes” with 
Title VII, § 7 0 3 (a)(2 )) prohibiting classification.

2) Compare Espinoza v. Farah Mfg. Co., 414 U.S. 
86 (1973) with 38 Fed. Reg. No. 149, Aug. 3, 1973, 
and 29 C.F.R. § 1606.1 (“amendment” nullifying de­
cision).

3) Compare Teamsters v. United States, supra, and 
United Airlines Inc. v. Evans, 431 U.S. 553 (1977) 
with “Interpretive Memorandum” (nullifying all factors 
that might show a good faith seniority system) CCH 
EPD f  5029, July 1977, pp. 3104, et seq.

4) Compare Weber v. Kaiser Aluminum & Chem. 
Corp., 563 F.2d (5th Cir.) decided November 17, 
1977, with “Interpretive Regulations Guidelines” 42 
Fed. Reg. 64826, dated December 28, 1977.

5) Also note Griggs v. Duke Power, 401 U.S. 424, 
91 S.Ct. 849, 28 L.Ed.2d 158 (1971) (new “guide­
lines” issued after certiorari was granted and attached 
to a brief, precluding other parties from Freedom of 
Information Act or other process to make a record 
on their background or content).

The effect of EEOC guidelines may be to prejudice 
the views of District Court judges (as in the instant 
case so that the defendant can scarcely expect an 
independent, impartial de novo hearing. Thus, the 1972 
EEOC guideline on “sex” leads to the conclusion (if 
one assumes that EEOC has any legal jurisdiction 
to issue such pronouncements) that differentiation upon

297



—42—

the basis of sex whether “rational or irrational” is 
unlawful even though the statute says the opposite.

Moreover, the matter of “testing guidelines” does not 
pose a special problem. Courts have proved themselves 
competent to pass on questions of test reliability and 
test validity. Almassy v. L.A. County Civil Service 
Com., 34 Cal.2d 387, 210 P.2d 503 (1949).

In a judicial forum the guidelines on testing seem 
only to take from the trial judge the responsibility 
to make rational decisions, or to force irrational de­
cisions because of certain assumptions of statistical 
methodology, which are not always recognized as mere 
methodological assumptions. Morrison and Henkel, The 
Significance Test Controversy (1970, Aldine Publish­
ing Co.). Employment decisions involve classifications 
and judgments in individual cases; and since that is 
the nature of a lawyer’s business also, we cannot imagine 
that the problems of employment discrimination are 
“too complex” or the statute too obscure, to require 
agency “guidelines” to direct the decision.

Because the issue is important, the background of 
the “guidelines” on testing and certain other aspects 
of the subject are addressed in the appendix attached 
hereto.

We would submit that if “guidelines” only state 
when the agency believes it has reasonable cause to 
believe that a violation has occurred, it has fulfilled 
its function when all know that is its function and 
it has no place in a de novo proceeding.

Accordingly, we submit the Court should hold both 
as a matter of law and equity, and as a matter of 
efficient administration of law that the “guidelines” 
and “bulletins” are without legal effect at least against

298



— 43

local governmental entities. Holding herein that bulle­
tins and guidelines are entitled to no weight against a 
defendant will greatly facilitate the administration of 
laws. Even the EEOC will benefit. It can then clear up 
its backlog of cases because it can cease the laborious 
and totally unnecessary process of writing “opinions” 
as to when “reasonable cause” is found, which opinions 
(according to their mentor) are written for the sake of 
influencing the courts (Blumrosen, Op. Cit., supra p. 
733).

IV
UNDER THE FOURTEENTH AMENDMENT, CONGRESS 

MAY NOT REGULATE BENEFITS PROVIDED IN  
PENSION PLANS OF LOCAL GOVERNMENT EN­
TITIES OR IMPOSE ANY STANDARD REGARDING  
COMPENSATION, EXCEPT UNDER A RATIONAL  
BASIS STANDARD.

Respondents cite the case of Katzenbach v. Morgan, 
384 U.S. 641, 86 S.Ct. 1717 (1966), in opposition 
to Petitioners’ position. Actually that case supports 
Petitioners.

“Correctly viewed, §5 is a positive grant of legislative 
power authorizing Congress to exercise its discretion 
in determining whether and what legislation is needed 
to secure the guarantees of the Fourteenth Amend­
ment.” Katzenbach, supra p. 651.

We submit that since the question whether to enact 
legislation under the 14th Amendment is a decision 
for Congress to make, and since Congress has elected

299



—44—

not to legislate with respect to the pension systems 
of local governments, the present statutes may not 
be extended to that subject matter. Nor may Congress 
adopt legislation which exceeds its 14th Amendment 
equal protection powers. Katzenbach, supra p. 651 
fn. 10.

We submit that if Congress were to enact a statute, 
ostensibly under its 14th Amendment power, determin­
ing that blacks or yellows or whites not be permitted 
access to the federal courts for the purpose of remedying 
denial of their civil rights, this Court could not con­
stitutionally enforce such legislation.

Having been added to the Constitution, the 14th 
Amendment, just as any other amendment to the Con­
stitution, becomes a part of an integrated writing, and 
must be construed with other provisions such as the 
10th Amendment.

What then is the standard of equal protection which 
limits Congress under the Constitution? We respectfully 
suggest it is the same standard it has always been, 
the standard set for all other legislation under the 
14th Amendment—rational basis, or in certain areas 
compelling governmental interest.

Thus we question whether Congress could enact a 
law favoring females over males without a rational 
basis therefor under its 14th Amendment power.

If Congress did not or could not act under the 
14th Amendment then it acted under another power 
such as the Commerce Clause. Where Congress acts 
under the Commerce Clause, however, if it invades 
an area reserved to local government it violates the 
10th Amendment. League of California Cities v. Usery, 
supra, 842-844.

300



-4 5 -

As stated by Justice Black in Oregon v. Mitchell, 
400 U.S. 112, 128 (1970):

“[T]he power granted to Congress was not in­
tended to strip the states of their power to govern 
themselves or to convert our national government 
of enumerated powers into a central government 
of unrestrained authority over every inch of the 
whole nation.”

Thus, assuming that Congress intended to act within 
its 14th Amendment powers, it intended no different 
meaning to discrimination than was the common under­
standing in 1964. And, as previously noted, Congress 
did not mean to change that in 1972.

This Court recognized that principle in General Elec­
tric, supra, p. 145 and at least one District Court 
agrees. Blake v. City of Los Angeles, 435 F.Supp. 
55, 63 (C.D. Cal. 1977) on appeal in the Ninth 
Circuit.

We submit therefore, that examined under the ra­
tional basis review standards, the retirement system 
passes muster.

V
RESPONDENTS f a i l  t o  s h o w  a n y  c o n v i n c i n g  r e a ­

s o n  FOR THE COURT TO REVERSE ITS RECENT
d e c i s i o n s  r e s p e c t i n g  d i f f e r e n t i a l  a m o u n t

OF COMPENSATION BASED ON A FACTOR COR­
RELATED WITH SEX.

The Respondents and their amici curiae constitute 
a Greek chorus for the proposition that the Supreme 
Court was wrong in its interpretation of the statute 
m the General Electric case. Together they seek to 
have this Honorable Court reverse itself.

3 0 1



•46-

In order to do that, the Court must ignore the 
will of Congress, ignore the plain language of the 
statute, disregard the opinions the Court has set forth 
in General Electric and in Nashville Gas Co. v. Satty 
(supra), and disregard the numerous agencies—federal, 
state, local and private—which plainly disagree with 
Respondents’ interpretation of the statute.

Even if we were to concede, which we do not, 
that there is any legislative support at all for Respond­
ents’ position, the opposing evidence is so strong that 
at best this Court should return the matter to Congress 
to determine whether that body in fact wishes to enact 
the kind of legislation sought by Respondents. While 
Respondents conceded the issue of females’ longevity 
as supported by the record, and do not question the 
actuarial basis for funding male and female pensions 
under the Plan, their briefs and those of the amici 
are replete with suggestions that there is little or no 
difference. (The very statement of Respondent, Alice 
Muller, that there are approximately 400 women who 
are surviving spouses of Department employees and 
3 men who are surviving spouses of female employees 
receiving benefits under the retirement plan would ap­
pear to be further evidence of the degree of difference 
in longevity.) (App. p. 44.)

This Court recognized the cost of pregnancy benefits 
as a factor correlated with sex, the denial of which 
benefits, despite such correlation, was not a violation 
of the Equal Pay Act. The Court recognized that 
differences in industrial benefit plans could clearly con­
tinue in operation under Title VII where allowed by 
the Equal Pay Act. The Court relied in part for 
its determination on a ruling of the Department of 

302 Labor which implicitly provided that if basic wages



were the same, the fact that an additional benefit 
was not provided for pregnancy to the only group 
that could be affected, namely, females, it would not 
violate the Act. The particular ruling relied upon recog­
nized, as did the Court by implication, that longevity 
was a “factor” other than sex allowed as an exemption 
from the Act. The Court stated:

“When Congress makes it unlawful for an em­
ployer to ‘discriminate . . .  on the basis of . . . 
sex . . without further explanation of its mean­
ing, we should not readily infer that it meant 
something different than what the concept of dis­
crimination has traditionally meant. . . General 
Electric, supra p. 145.

The respondents suggest an approach which would 
provide for a system having a disparate impact on 
males either by subsidy of the females or greater pay 
for the females. If your petitioners’ Plan violated Section 
703(a)(1) then, surely, this disparate impact would 
violate Section 703(a)(2 ) where as here it is a just 
a subterfuge to discriminate against one sex or the 
other. The sole purpose would be to favor females.

This Court has already held that federal legislation 
favoring one sex over the other violates equal protection 
where there is no rational basis therefor. Califano v. 
Goldfarb, 430 U.S. 199 (1977); Weinberger v. Weisen- 
feld, 420 U.S. 636 (1975); Frontiero v. Richardson, 
411 U.S. 677 (1973).

Can this Court now hold that it is constitutional 
for the Court herein but not Congress to favor women? 
It can only do so if there is a rational basis to favor 
women. Kahn v. Shevin, 416 U.S. 351 (1974); Schles- 
inger v. Ballard, 419 U.S. 498 (1975). Such recognition

— 47—

303



— 4 8 —

of a rational basis would be, a fortiori, recognition 
of female longevity as actuarially acceptable.

If recognition of female longevity is thus acceptable, 
then so is the Plan of your petitioners.

The opponents want the Court to weigh competing 
interests in favor of the female employees. They suggest 
that a plan which favors females would not violate 
the statute because it is permissible to have larger 
groups covered identically under employee benefit plans, 
They argue that this is so because it is a normal 
principle of insurance that one person may lose and 
another win from the insurance standpoint even though 
the risk may affect one more than the other because 
the particular factor affecting that particular person 
is not taken into account in the group. They suggest 
that even though that factor is sex as related to lon­
gevity, it is allowed under the statutes because it is 
“neutral”, as if such factor could be neutral. On the 
other hand, they argue that to allow grouping to avoid 
the impact on the sex with the higher risk factor 
is discriminating for the purpose of sex, and sex alone. 
We have difficulty seeing the difference. It appears 
to us that in either case one is differentiating on 
the basis of sex.

In terms of groups, clearly the systems suggested 
by the respondents favor women. They do not provide 
for neutral treatment, no matter what arguments are 
made. And, because insurance and annuity risks are 
not known on an individual basis it would logically 
seem that they favor each individual female over each 
individual male.

In terms of groups, the employer plans challenged 
herein and in similar cases {Colby, supra; Henderson

304



— 49—

v. Oregon, 405 F.Supp. 1275 (1975) on appeal to 
the 9th Circuit, et seq.) treat risks not neutrally, but 
equally.

This Court is being asked to hold, in effect, you 
may not differentiate between men and women but 
you may discriminate against men. We submit the 
Court should not make such determination. Accord: 
General Electric Co. v. Gilbert and Nashville v. Satty.

Conclusion.
Having conceded the different wage payments are 

for different pension payments and having conceded 
the actuarial bases of the Plan, and having raised 
no contention that the Plan is a subterfuge to discrimi­
nate against females, respondents took the position 
that mere differentiation in contributions is sufficient 
to violate the Acts. Respondents failed to indicate 
how such mere differentiation was a violation of the 
statutes where it was based on sex-differentiated ac­
tuarial tables.

Therefore, they and their supporting amici take the 
position that the Court should hold contrary to the 
statute by setting a policy that was never set by Con­
gress. They ask the Court to legislate contrary to 
its Constitutional duty, in the same fashion that the 
courts below were led to abdicate their responsibilities 
and so legislate by totally deferring to administrative 
agency bulletins.

In so doing, respondents also ask this Court to 
remove from local government and local control, the 
administration of the City’s pension plan, where Con­
gress has chosen not to so do.

305



— 50—

We respectfully petition this Court to reverse the 
decision of the lower courts and direct the District 
Court to enter judgment for petitioners.

Respectfully submitted,
Burt Pines,

City Attorney,
Edward C. F arrell,

Chief Assistant City Attorney 
for Water and Power,

J. David Hanson,
Deputy City Attorney,

David J. Oliphant,
Deputy City Attorney,
By David J. Oliphant,

Deputy City Attorney,
Attorneys for Petitioners.

306



APPENDIX.

Employment Testing and Judgments;
Judicial Tests and Judgments.

About 1955, professional educators and psychologists 
published technical recommendations regarding the de­
velopment of achievement, psychological, and diagnostic 
tests. In 1966 (following the enactment of the Civil 
Rights Act) the professional societies jointly published 
technical recommendations. Earlier recommendations 
had been an attempt to develop, formulate through 
a survey or polling method, some consensus of the 
information which a test user would find helpful. The 
1966 recommendations were a reformulation of those 
recommendations.

The new recommendations were titled “Standards 
for Educational and Psychological Tests and Manuals” 
of the American Psychological Association.

The recommendations fully recognized that many 
tests were then fully developed and would be “released 
for practical publication without local validation”. 
(Ibid. p. 3) A test manual containing the publisher’s 
report of experiments, studies or “tests of his test” (so 
to speak) was to supply a basis for intelligent judg­
ment by the test user.

In describing the “Development and Scope of the 
Standards” the published document explains that “the 
present effort is concerned with standards of reporting 
information about tests”. (Ibid. p. 1) “ [T]he essential 
principle that sets the tone for this document is that 
a test manual should carry information sufficient to 
enable any qualified user to make sound judgments 
regarding the usefulness and interpretation of the test”, 
(Ibid. p. 2) “Tests released for operational use . . .



— 2—

should be released to the general user only after their 
developer has gathered information which would permit 
the user to know for what use the tests can be trusted.” 
(Ibid. p. 4) (Emphasis added).

Thus the major premise of the recommendations 
was that the publisher should test his professional judg­
ment as to test reliability, validity, interpretation and 
other matters by certain analyses, studies (perhaps in­
cluding statistical studies) before releasing the test; 
that the manual accompanying the test should show 
the results of the studies actually conducted; and that 
the test selector and user would then have an eviden­
tiary basis to make informed judgment on such matters 
in relation to his own situation.

Later the same year (1966) the EEOC published 
“Guidelines on Employment Testing Procedures”. The 
document consisted of three parts: (1) a general in­
troduction, (2) “The General Guidelines of the Com­
mission”, and (3) a “Report by a panel of psycholo­
gists”.

The first two parts of the document are a statement 
of what the Commission “advocates” or “recommends” 
or “encourages”. Similarly the report by the panel 
of psychologists states that the Commission “has asked 
us to advise it” . . . concerning the process by which 
tests should be developed and administered in an em­
ployment setting.” (Emphasis added). The report states 
“we recommend that the Commission advocate the 
use of a total personnel assessment system”. One part 
of such system was said to be a “test”, but “interview” 
etc. were also mentioned.

The Panel’s Report contained many headings, but 
the most significant is “criterion-related validity”. Un­
der this heading the report stated that “tests should

308



— 3-

be selected on the basis of validation against the per­
formance requirement of the job, that is, criterion- 
related validity.”

Thus this recommendation was in direct conflict 
with principles of the 1966 professional standards. It 
recommended a local validation study as the basis 
for selection of a test. In contrast the 1966 professional 
standards contemplated that tests should be selected 
and used without such local validation studies. Instead 
the test manual of the publisher “would permit the 
user to know for what use the test can be trusted”.
A.P.A. Standards, supra, p. 4.

The 1970 EEOC guidelines on testing, further ex­
panded the matter. While the earlier on document fo­
cused on “tests” in the ordinary sense, the later guide­
lines newly defined “tests” so that it included every em­
ployment standard and its application: “The term ‘test’ 
includes all . . . techniques of assessing job suitability 
including . . . work history requirements, scored inter­
views . . . etc.” 29 C.F.R. §1607.2.

There were other major differences in the new guide­
lines. For example they purported to require (even 
though not issued pursuant to the record keeping re­
quirements of the statute) that “each person using 
tests (and tests are defined as any standard by which 
judgment is made) . . . shall have available for inspec­
tion evidence that the tests are being used in a manner 
which does not violate” the EEOC’s definition of dis­
crimination. 29 C.F.R. §1607.4.

A review of the entire testing guidelines shortly 
after their publication, evaluated them in the follow­
ing terms:

“In sum, the Guidelines appear designed to 
scare employers away from objective standards

309



4

which have a differential impact on minority 
groups because, applied strictly, the testing require­
ments are impossible for many employers to fol­
low.” Note “Developments—Title VII”, 84 Harv. 
Law Rev., pp. 1109, 1131. (Emphasis added).

Moving from the employment decision context to 
the judicial context raises a further set of problems. 
This set of problems is caused by the totally “experi­
mentalist” assumptions of the guidelines-—the notion 
that only an experiment (or statistical study) resulting 
in' statistical evidence of “criterion-related validity” pro­
vides a sufficient basis for concluding the standard 
(or “test” ) is “valid”.

One who formulates or develops a “test” or employ­
ment standard — e.g., “tall men are better basketball 
players than short men” is obliged (if he is a strict 
experimentalist as the “guidelines” require him to be) 
to “prove” that standard with a statistical study.

The statistical study begins by assuming that such 
rational judgment is merely a hypothesis, that it has 
a “null” validity. This does not mean that it is false 
in fact. It only means that for purpose of the experi­
ment (the statistical study) it must be assumed for 
the sake of the experiment that there is only an absolute­
ly random relationship between “tall men” and “better 
basketball players.” Thus “zero” or “null” or “no” 
validity is simply a methodological assumption. Mor­
rison and Henkel, The Significance Test Controversy 
(1970, Aldine Publishing Co., Chicago).

Suppose then, in the particular experiment attempted, 
the taller men and the shorter men do not have 
a significant difference as measured against the cri­
terion: “better basketball players”. Does that prove

310



■5—

the original rational judgment that “tall men are better 
basketball players” is false?

No, it only means the evidence obtained in the 
“study” was inconclusive. It is not sufficient to disprove 
the null hypothesis.

Note that the experiment is itself a test; and the 
assumption that the experiment will be useful is a 
rational judgment.

However, a trial judge, told in effect that he may 
not make a rational judgment on the bona fides, the 
validity, or the rationality of employment standards 
or decisions unless there is statistical evidence showing 
that the standard is significantly different than random 
selection, is necessarily forced into making non-rational 
decisions. This si especially true since under the “total 
experimentalist” view a statistical correlation is itself not 
a rational relationship, but merely one that “happens” 
at this time and place, to turn up as non-random.

The necessity for and value of experimental evidence 
is itself a matter of dispute among psychologists. The 
“clinicians” and the “experimentalist” schools of psy­
chology hold differing views.

The judicial process, on the other hand, has generally 
not required any particular kind of evidence to prove 
the truth of any proposition of fact such as reliability 
and validity of employment standards and decisions. 
Almassy v. L.A. County Civ. Serv. Com., supra.

311





No. 7 6 -1 8 1 0

Jn t h  § m t  4  f e  I n M  sta tes
October T erm , 1977

City or Los A ngeles, D epartment of W ater and 
P ower, et al., petitioners 

v.
M arie Manhart, et al.

ON W RIT  OF C E R T IO R A R I TO T H E  U N ITED  S T A T E S  C O U RT OF 
A P P E A L S  FO R T H E  N IN T H  C IR C U IT

BRIEF FOR THE UNITED STATES AND THE EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION AS AMICI CURIAE

W A D E  H . M eCREE, J r . ,
Solicitor General, 

D R E W  S. DAYS, I I I ,
A ssis ta n t A tto rney  General, 

L A W R E N C E  G. W A LLA C E,
D eputy So licitor General, 

THOM AS S. M A R T IN ,
A ssis ta n t to th e  So licitor General,

B R IA N  K.  LAN D SBERG , 
C Y N T H IA  L. ATTW OOD,

ABNER W. SIB A L,

A ttorneys,
D epartm ent o f Justice, 

W ashington, D.C. 20530.

General Counsel,
JOSEPH T. EDD IN S,

Associate General Counsel,
BEATRICE RO SENBERG,

Assistant General Counsel,
MARY-HELEN M A U TN E R ,

Attorney,
Equal E m ploym ent O pportunity Commission, 

W ashington, D.C. 20506.

313





I N D E X

Paw
Question presented__________________________________  1
Interest of the United States and the Equal Employment

Opportunity Commission___________________________ 1
Statement__________________________________________  2
Summary of Argument______________________________  6
Argument:

I. A policy of deducting greater amounts from the 
wages of female employees than from those of male 
employees in return for a contingent future right 
to an equal monthly retirement allowance violates 
Title Y II___________________________________  13

A. Petitioners’ policy constituted discrimination
based upon sex______________________________  13

B. Petitioners have suggested no adequate basis for
an affirmative defense under Title Y II__________  20

II. A requirement that female employees contribute more 
to a pension plan than similarly situated male em­
ployees violates the equal pay act______________  32

Conclusion__________________________________ 45

CITATIONS
Cases:

Bartmess v. Drewrys U.S.A. Inc., 444 F. 2d 1186, cer­
tiorari denied, 404 U.S. 939_____________________ 15

Bowe v. Colgate-Palmolive Company, 416 F, 2d 711__  14
Brennan v. Heard, 491 F. 2d 1_____________________ 36
Brennan v. Veterans Cleaning Service, Inc., 482 F. 2d

1362 _________________________________________ 35,36
Brooklyn Bank v. O'Neil, 324 U.S. 697_____________  36
Califano v. Goldfarb, 430 U.S. 199_________________  33
Chastang v. Flynn & Emrich Co., 451 F. 2d 1040_____  7,15
Craig v. Boren, 429 U.S. 190______________________ 22.
Diaz v. Pan American World Airways, Inc., 442 F. 2d 

385, certiorari denied, 404 U.S. 950______________  15
< I I

315



II

Cases—Continued Pag6
Dothard v. Rawlinson, No. 76-422, decided June 27,

1977 _____________________________________ 7,14,21,22
Espinoza v. Farah Mfg. Co., 414 U.S. 86-----------------  32
Fitzpatrick v. Bitzer, 390 F. Supp. 278, reversed on

other grounds, 427 U.S. 445---------------------------------  15
General Electric Co. v. Gilbert, 429 U.S. 125_ 5,6,10,19,20,32
Griggs v. Duke Power Co., 401 U.S. 424-----------------  21
Henderson v. State of Oregon, 405 F. Supp. 1271, 

appeal docketed (C.A. 9, No. 76-1706, March 30,
1976) ____________________________________  17

International Brotherhood of Teamsters v. United
States, 431 U.S. 324_______________________________ 33

Nashville Gas Co. v. Sa tty , No. 75-536, decided
December 6,1977_______________________________ 19,20

National Labor Relations Board v. Seven-up Bottling
Co., 344 U. S. 344______________________________  32

National Labor Relations Board v. Weingarten, Inc.,
420 U.S. 251_____________________________ - —  32

Reilly v. Robertson, 360 N.E. 2d 171, certiorari denied,
No. 76-1635, October 3,1977______   1"

Rigopoulos v. Kervan, 140 F. 2d 506------------------------  36
Robinson v. Lorillard Corp., 444 F. 2d 791, certiorari

dismissed, 404 U.S. 1006-------------------------------  8,21
Roland. Electrical Co. v. Black, 163 F. 2d 417, certiorari

denied, 333 U.S. 854_________________________—  36
Rosen v. Public Service Electric and Gas Co., 477 F. 2d

9 0 ________________________________________ 7,15
Rosenfeld v. Southern Pacific Company, 444 F. 2d

1219______________________________________  14
Shultz v. American Can Company Dixie Products, 424

F. 2d 356__________________________________  35
Shultz v. Hinojosa, 432 F. 2d 259______________  36
Shultz, v. Wheaton Glass Company, 421 F. 2d 259—  35
Sprogis v. United A ir  Lines, Inc., 444 F. 2d 1194__ 14
W irtz v. Midwest Mfg. Corp., 58 CCH Lab Cas. 32.070 

18 W H Cases 556 (S.D. III., decided August 9,
1968)______________________________________ 11,43-44

Constitution, statutes and regulations:
United States Constitution, Fourteenth Amendment— 3

316



I l l

Statutes and regulations—Continued Page
California Constitution, Article 1:

Section 1------------------------------------------------------- :
Section 21-----------------------------------------------------  3

Civil Eights Act of 1871,17 Stat. 13, 42 U.S.C. 1983— 3
Civil Eights Act of 1964:

Title V II, 78 Stat. 253, as amended, 42 U.S.C.
(and Supp. V) 20Q0e et seq---------------------------  2—3

Section 703(a) (1), 42 U.S.C. 2000e-2(a) (1 )------- 7,13
Section 703(a)(2), 42 U.S.C. (Supp. V) 200e-2

(a) (2) -------- --------------------------------------------  I I
Section 703(h), 42 U.S.C. 2000e-(h)-------------------10,32
Section 706,42 U.S.C. (Supp. V) 2000e-5(f) ( 1 ) -  2
Section 707, 42 U.S.C. (and Supp. V) 2000e-6-----  2
Section 717,42 U.S.C. (Supp. V) 2000e-16---------- 2

Equal Pay Act, 77 Stat. 56:
Section 2 (a )--------------------------------------------------  35
29 U.S.C. 206(d)__________________   2,35
29 U.S.C. 206(d) (1 )____________________  33-34,36,44

Fair Labor Standards Act of 1938, 52 Stat. 1060), as 
amended,

29 U.S.C. 201 et seq. :
Section 2 (a ), 29 U.S.C. 202(a)------------------------  35
Section 6, 29 U.S.C. 206______   35

29 U.S.C. (Supp. V) 1054(c)(2)__________________  38
California Government Code § 7500 (West, 1977 Cum.

S upp.)_______________________________________  4
29 C.F.E. 1604.9(e)_______    32
29 C.F.E. 1604.9(b) ( f ) _______________________  31
29 C.F.E. P a rt 2610__________________________  38
29 C.F.E. 2609.4___________________    38
29 C.F.E. 800.142-800.148_____________________  39
29 C.F.E. 800.116 (d )___________________________12,41-42

_ 29 C.F.E. 800.151___________ _______________ 11,12,42^13
Miscellaneous:

Bergmann and Gray, “Equality in Eetirement Bene­
fits” Civil Rights Digest (Fall 1975)------------------  18

Bernstein, The Future of Private Pensions (1964)-----  22-23
BNA Wage-Hour Manual 95:607  ___ .— ------------- 11, 44
109 Cong. Eec. 8916 (1963)__________ ____ _______ _ 35
109 Cong. Eec. 9203 (1963)________________________ 37

317



IV

Miscellaneous—Continued P„g9
109 Cong. Rec. 9205-9206 (1963)___________________  39
110 Cong. Rec. 13663,13664 (1964)_________________  32
Enstrom, “Cancer Mortality Among Mormons”, 36 Can­

cer 825 (1975)_________________________________  16
Fauman and Mayer “Jewish M ortality in the United 

State,” Shiloh and Selavan, Ethnic Groups of Amer­
ica: Their Morbidity, Mortality and Behavior Dis­
orders, Vol. / —The Jews (1973)_________________  16

30 Fed. Reg. 14926-14928__________________________ 31
33 Fed. Reg. 3344________________________________  31
35 Fed. Reg. 18692________________________________ 31
37 Fed. Reg. 6835-6837____________________________ 31
41 Fed. Reg. 6194, 6195____________________________ 38

, 41 Fed. Reg. 48484,48489__________________________ 38
Fellers and Jackson, “Reinsured Pensioner M ortality:

The UP-1984 Table,” 25 Proceedings, Conference
of Actuarities in Public Practice (1976)_____ 24, 26, 27, 28

Greenless and Keh, “The 1971 Group Annuity Mortal­
ity Table,” 23 Transactions, Society of Actuaries
(1972) _______________________________________  5

H.R. Rep. No. 309, 88th Cong. 1st Sess. (1963)______ 11,38
H.R, 6060, 88th Cong., 1st Sess. (1963)_______________ 37
James, The Metropolitan Life:  A  S tudy in Business

Growth (1976)________________________________  21
Kaladrubetz and Landay, “Coverage and Vesting of 

Full-Time Employees Under Private Retirement
Plans, Social Security Bulletin  (November 1973)__  23

Kolodrubetz, “Private Retirement Benefits and Rela­
tionship to Earnings: Survey of New Beneficiaries,”
Social Security Bulletin  (May 1973)_____________  23

Uemon and Kuzma, “A Bilogic Cost of Smoking,” 18 
Archives of Environmental Health, American Medi­
cal Association (1969)__________________________ 16

Secretary of Labor’s Interpretative Bulletin on Equal 
Pay A ct:

Section 800.116(d)_________________________ 12,41-42
Section 800.151____________________________12,42-43
Shepherd and Webster, Selection of Risks (1957) _ 25

S. 1409, 88th Cong., 1st Sess. (1963)________________  37

318



V

Miscellaneous—Continued Pag0
S. Eep. No. 176, 88th Cong., 1st Sess. (1963)________  37
S. Eep. No. 92-415, 92d Cong., 1st Sess. (1971) __ 32,39,40-41 
Sutton, “Assessing M ortality and Morbidity, Disad­

vantages of the Black Population of the United 
States,” Shiloh and Selavan, Ethnic Groups of 
America: Their Morbidity, Mortality and Behavior
Disorders, Vol. I I —The Blacks (1974)___________ 16

United States Department of Health, Education, and 
Welfare, Public Health Service, Publication No.
CDC 75-7511 (revised 1972), Chart Book on Smok­
ing, Tobacco and Health_______________________  26

319





|« tU d|tat 4
October T erm , 1977

No. 76-1810

City of L os A ngeles, D epartment of W ater and 
P ower, et al., petitioners 

v.
M arie M anhart, et al.

ON W R IT  OF C E R T IO R A R I TO T H E  U N ITE D  S T A T E S  COURT OF 
A P P E A L S  F O R  T H E  N IN T H  C IR C U IT

BRIEF FOR THE UNITED STATES AND THE EQUAL EMPLOYMENT 
OPPORTUNITY COMMISSION AS AMICI CURIAE

Q U ESTIO N  P R E S E N T E D

Whether an employer’s policy of deducting greater 
amounts from the wages of its female employees than 
its male employees in retu rn  for the contingent future 
right to an equal monthly retirem ent allowance con­
stitutes sex discrimination in violation of Title Y II  
of the Civil Rights Act of 1964.

i n t e r e s t  o p  t h e  u n i t e d  s t a t e s  a n d  t h e  e q u a l  
e m p l o y m e n t  o p p o r t u n i t y  c o m m i s s i o n

Congress has assigned to the Equal Employment Op­
portunity Commission, the Departm ent of Justice, and

(i) 321



2

the Civil Service Commission the responsibility for 
federal enforcement of Title V II  of the Civil Eights 
Act of 1964. The Equal Employment Opportunity 
Commission may bring civil actions against private 
employers under 42 TT.S.C. (Supp. V) 2000e-5(f) (1). 
The Attorney General has enforcement responsibility 
when the employer is a government, governmental 
agency, or political subdivision. 42 U.S.C. 2000e-6. 
The Civil Service Commission exerts oversight re­
sponsibility to insure nondiscrimination in  federal 
employment and serves as the adm inistrative review­
ing authority for Title V II  charges filed by individual 
employees against federal agencies. 42 U.S.C. (Supp. 
V ) 2000e-16. Federal enforcement of the Equal Pay 
Act is assigned to the Secretary of Labor. 29 U.S.C. 
206(d).

STA T E M E N T

This suit was filed as a class action on behalf of 
female employees and retirees of the City of Los 
Angeles, Departm ent of W ater and Power (“the De­
partm ent” ) 1 alleging that the D epartm ent’s Employ­
ees’ Retirement, Disability, and Death Benefit Insur­
ance P lan  [hereinafter “the P la n ”] discriminated 
against women in violation of Title V II  of the Civil

1 In  addition to the Department of W ater and Power, respond­
ents sued the Members of the Board of Commissioners of the De­
partment, the Members of the Board of Administration of the 
Department’s Employees’ Retirement, Disability and Death Bene­
fit Insurance Plan, the Department’s chief accounting officer, and 
the Department’s general manager (Pet. App. C-2).

322



3

Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. 
(and Supp. V ) 2000e et seq.2

The Departm ent’s plan covers most of its approxi­
mately 12,000 employees, of whom approximately
2,000 are women (Pet. App. B -9; A. 15). Participa­
tion by all eligible employees is compulsory (Pet. 
App. C-2). The plan is entirely funded by monthly 
contributions from the employees, supplemental con­
tributions from  the Department, and earnings on 
those contributions. No commercial insurance com­
pany is involved in the adm inistration of the plan.

Under the plan a male and female employee of the 
same age, length of service, and salary, receive an 
identical monthly allowance upon retirement (Pet. 
App. B-10).3 However, in retu rn  for these contingent 
equal monthly benefits, the female employee was re­
quired until December 31, 1974, to make contributions 
to the plan which were 14.84 percent greater than those 
of an equivalent male employee (Pet. App. C-2). For 
example, employee Joan  E. Roberts contributed a total 
(including earnings) of $18,670.59 to the P lan (R. 
176). A similarly situated male employee would have

2 Plaintiffs also alleged violations of the Civil Eights Act of 
1871, 17 Stat. 13, 42 U.S.C. 1983, the Fourteenth Amendment to 
the Constitution, and Article 1, Sections 1 and 21 of the Constitu­
tion of the State of California.

8 Although the Department’s plan does not appear in the record, 
such pension plans universally make the vesting of a pension con­
tingent upon a number of factors including a minimum term of 
service. For statistics indicating the impact of such contingencies 
on the probability that males and females will obtain vested pen­
sion rights, see note 18, infra.

323



4

contributed $13,274.55 {ibid.). The stated justification 
for requiring substantially differing contributions 
based upon the sex of the employee was tha t “ [s]ound 
actuarial practice requires tha t annuity or pension 
plans be based on averaging of life expectancies of 
persons in ascertained classes (usually age and sex) 
since the life expectancy of a specific person cannot be 
predetermined” (A. 83).

P rio r to the district court’s decision the Depart­
ment discontinued its use of higher contribution 
rates fo r female employees pursuant to California 
Government Code § 7500 (W est, 1977 Cum. Supp.), 
which made it unlawful after January  1, 1975, for cer­
tain  municipal agencies to require differing employee 
contributions based upon sex. The current retirement 
plan operates with equal monthly employee contribu­
tions and equal monthly benefits for similarly situated 
male and female employees (A. 102).

Respondents continued the litigation seeking restitu­
tion of the excess contributions made by female em­
ployees over the course of the preceding 2̂ 2 years, 
and successfully moved for summary judgm ent in the 
district court which held tha t basing employee con­
tribution rates upon sex alone violates Title Y U . The 
district court enjoined the Departm ent from charging 
women a higher contribution rate, and awarded a 
refund to the women of all excess contributions be­
tween A pril 5, 1972, and December 31, 1974 (A. 134- 
135). The court of appeals affirmed (Pet. App. C), 
holding that the sex-based contribution schedule re-

324



5

quiring increased payments by individual females, 
based upon the longevity of females as a group,* “ is 
just the kind of abstract generalization, applied to 
individual women because of their being women, 
which Title Y I I  was designed to abolish” (Pet. App. 
C-7). The court of appeals also held tha t a classifica­
tion based explicitly and exclusively on sex4 5 was not 
necessary to provide a financially sound pension plan, 
and noted tha t “ distinctions based on many other 
longevity factors (e . g smoking and drinking habits, 
normality of weight, p rio r medical history, family 
longevity history) are not used [by the employer] in 
determining contribution levels” (Pet. App. C - l l  to 
C-12).

Subsequently, the court of appeals, with one judge 
dissenting,6 denied the D epartm ent’s petition for re­
hearing (Pet. App. D), finding tha t unlike the ex­
clusion of pregnancy from disability benefits (see 
General Electric Co. v. Gilbert, 429 P .S . 125) the differ-

4 Calculations based upon Greenlee and Keh, “The 1971 Group 
Annuity Mortality Table,” 23 Transactions, Society of Actuaries, 
Pt. 1, pp. 585-596 (1972), for example, show that women at age 65 
on average will live 4.1 years longer than men at age 65.

5“[I]t does not seem reasonable to us to say that an actuarial 
distinction based entirely on sex is ‘based on any other factor 
other than sex.’ Sex is exactly what it is based on” (Pet. App. 
C-13).

6 Judge Kilkenny, who had joined the original opinion, dis­
sented from the denial of rehearing on the ground that the 
General Electric decision required, a t a minimum, a trial on the 
issue of whether the “retirement plan was justified on the basis 
of recognized actuarial tables showing the difference in longevity 
between males and females” (Pet. App. D-4 to D-9).

325



6

ential treatm ent of women in the D epartm ent’s retire­
ment p lan  was explicitly and exclusively based on 
gender.7 The court explained (Pet. App. D -2 ) :

A greater amount is deducted from  the wages 
of every woman employee than from  the wages 
of every man employee whose rate of pay is the 
same. How can it possibly be said tha t this dis­
crimination is not based on sex? I t  is based 
upon a presumed characteristic of ’women as a 
whole, longevity, and it disregards every other 
factor that is known to affect longevity. The 
higher contribution is required specifically and 
only from women as distinguished from men. 
To say that the difference is not based on sex 
is to play with words.

SU M M A E Y  OF  A R G U M E N T  

I

A. Petitioners’ mandatory retirem ent allowance 
plan under which a “greater amount [was] deducted 
from the wages of every woman employee than from 
the wages of every man employee whose rate of pay 
[was] the same” discriminated “on the basis of sex 
alone” (Pet. App. D -2). One of the factors that an 
employer appropriately considers in  funding a pen­
sion plan is the estimated longevity of his workforce, 
and sex is one factor relevant to longevity predic­
tions. B ut petitioners not only separately determined

7 The court also noted that unlike the under-inclusive disability 
benefits plan in General Electric the retirement plan is all-inclu­
sive as to retirement benefits, but “it is discriminatory, on the 
basis of sex alone, as to costs to the employees” (Pet. App. D-2)'

326



7

the longevity risks for male and female employees, 
but also allocated the total cost of the employee pen­
sion plan according to a solely sex-based classification. 
As the court of appeals concluded “ [t]o  say tha t the 
difference [in wage deductions] is not based on sex is 
to play with words” (Pet. App. P -2 ) .

B. Explicit sex discrimination in the terms and con­
ditions of employment is prohibited by Title Y II  of 
the Civil Rights Act of 1964 even if based on accurate 
generalizations concerning men and women as a class. 
42 U.S.C. 2000e-2(a) (1), 42 U.S.C. (Supp. V) 2000e- 
2(a)(2). See Dothard v. Rawlinson, No. 76-422, de­
cided June 27,1977. The Title Y I I  prohibition extends 
equally to discrimination in employment-related re­
tirement plans based upon generalizations with re­
spect to each sex, race, religion, or national origin. 
See Chastang v. Flynn <G Emrich Co., 541 P. 2d 1040 
(C.A. 4 ); Iiosen v. Public Service Electric and Gas 
Co., 477 P. 2d 90 (C.A. 3). Indeed, assessment of de­
ductions from employee wages based upon generali­
zations related to the employee’s sex “is ju st the kind 
of abstract generalization * * * which Title Y II  was 
designed to abolish” (Pet. App. C-7).

C. The burden of paying approximately 15 percent 
more in return  for a contingent fu ture right to equal 
monthly pension payments substantially and adverse­
ly affected the take-home wages of individual women. 
During the course of some wage earners’ careers, this 
disparity translated into wage differences of several 
thousand dollars. The contingencies associated with

3 2 7



8

the vesting of pension rights and the fact tha t most 
women and men (more than 80 percent) die at the 
same age means that most of these women will never 
receive the benefits that are said to offset this disad­
vantage. Nevertheless, because a small percentage of 
women live longer, all women were required to pay 
more, solely because of their sex, to receive the same 
contingent right to future periodic benefits. Similarly, 
because an equally small percentage of men die young, 
all men were accorded the benefit of reduced pension 
contribution costs.

D. A distinction with respect to the terms and 
conditions of employment explicitly based on mem­
bership in a class protected by Title Y I I  (such as 
sex), if it can be justified at all under Title Y II, must 
be justified by proof that “ there exists an overriding 
legitimate business purpose such tha t the practice 
is necessary to the safe and efficient operation of the 
business” and that there are “available no acceptable 
alternative policies or practices which would * * * 
accomplish the business purpose * * * equally well 
with a lesser differential [discriminatory] impact.” 
Robinson v. Lorillard Corp., 444 F. 2d 791, 798 (C.A. 
4), certiorari dismissed, 404 U.S. 1006. The justifica­
tion offered by petitioners for requiring differing 
contributions based upon sex was tha t “ [s]ound 
actuarial practice requires * * * averaging of life 
expectancies of persons in ascertained classes (usual­
ly age and sex)” (A. 83).

The assessment of actuarial risk has traditionally 
been accomplished by reference to sex classes, hut 

328 allocation of the cost by differential deductions from



9

employee wages based upon sex alone is “exceedingly 
rare” (B rief for the Society of Actuaries and the 
American Academy of Actuaries as Amici Curiae, p. 
18). In  addition, petitioners’ plan has functioned with­
out a sex-based cost allocation since 1975. The court of 
appeals therefore correctly held that petitioners could 
not show that differential contribution rates based 
upon sex were necessary to provide “a stable and se­
cure pension program ” (Pet. App. C - l l ) .  ,

Title Y II  does not mandate the actuarial mechanics 
of estimating the cost of ensuring employee risks, nor 
does it inhibit the use of all relevant actuarial data 
including the race or sex mix of a particular work­
force in order to estimate total costs accurately. 
Nevertheless, sex-neutral actuarial tables that merge 
the differing life expectancies of men and women are 
an available and practical alternative. Merger of the 
risks of group members is valid as an actuarial m at­
ter. The differing life expectancies of smokers and 
non-smokers, for example, are curently merged in 
petitioners’ actuarial tables, and a similar merger of 
the life experiences of black and white persons fol­
lowed the abandonment of traditional race-based 
acutuarial tables by the life insurance industry. Sex- 
neutral tables do not assume that men and women have 
the same life expectancies. These tables reflect the 
impact of female longevity experience on the work­
force and can be adjusted to reflect the female compo­
sition of a particular pension plan’s employee group.

Irrespective of how the employer calculates the

329



10

total risk, Title Y II  precludes funding tha t risk by 
differential deductions from wages based upon a sex 
classification. An available alternative to a sex-based 
cost allocation is the system used by petitioners since 
1975 under which all employees share equally the risk 
of the longer life expectancy of a small percentage of 
females and the shorter life expectancy of a small per­
centage of males, ju st as all of petitioners’ employees 
share equally the life expectancy risks of smokers and 
non-smokers and black and white employees. Since 
plans that allocate costs by differential deductions 
from wages based upon sex are rare, the practical 
implications for employers of discontinuance of that 
method would be minimal. In  sum, petitioners have 
offered no arguably adequate justification for denying 
female employees rights “based upon the fundamental 
Title Y II  precept that generalizations relating to 
sex, race, religion, and national origin cannot be per­
mitted to influence the terms and conditions of an in­
dividual’s employment” (Pet. App. C-21).

ii

A. The Bennett Amendment of Title Y I I  of the
Civil Bights Act of 1964, 42 U.S.C. 2000e-2(h), in­
corporates the exceptions to the prohibitions of the 
Equal Pay  Act into Title Y II. General Electric Co. v. 
Gilbert, 429 U.S. 125, 144. Petitioners argue that the 
fourth exception to the Equal P ay  Act authorizing a 
wage “ differential based on any other factor other 
than sex” insulates a practice of allocating pension

330



11

■costs on the basis of sex irrespective of the Title V II  
prohibition (Pet. Br. 24). But, as the court of appeals 
stated, “ it does not seem reasonable to us to say that 
an actuarial distinction based entirely on sex is ‘based 
on any other factor other than sex.’ Sex is exactly 
what it is based on” (Pet. App. C-13).

B. Despite the plain meaning of the statutory lan­
guage, petitioners claim that the purpose of the fourth 
exception was to perm it overtly sex-based classifica­
tions (Pet. Br. 15). B u t the legislative reports accom­
panying the Equal P ay  Act emphasize tha t Congress 
intended the fourth  exception as an authorization 
basically limited to sex-neutral classifications, “ among 
other things, shift differentials, restrictions on or dif­
ferences based on time of day worked, hours of work, 
lifting or, moving heavy objects, differences based 
on experience, training or ability would also be ex­
cluded.” H.R. Rep. No. 309, 88th Cong., 1st Sess. 3 
(1963). That understanding is reflected in the Secre­
tary of Labor’s In terpretative Bulletin on the Equal 
Pay Act, which states'that “ [t]o  group employees 
solely on the basis of sex for purposes of comparison 
of costs necessarily rests on the assumption that the 
sex factor alone may justify  the wage differential— 
an assumption plainly contrary to the terms and pu r­
poses of the Equal P ay  Act” (29 C.E.R. 800.151).

In litigation (W irtz  v. Midwest Mfg.  Corpv 58 
OCH Lab. Cases.

32,070, 18 W H  Cases 556 (S.D. 111., devided Au­
gust 9, 1968) and in an opinion letter (BRA  Wage- 
Aour Manual 95:607), the„.Secretary of Labor has 
taken the position tha t the Equal P ay  Act precludes 331



12

differential deductions from  wages based upon sex 
irrespective of the alleged increased costs of provid­
ing benefits to females. This conclusion applies a for­
tiori to pension contributions, which afford many em­
ployees no concurrent protection or benefits but only a 
contingent future right to benefits.

C. Petitioners argue that the decision below con­
flicts with Section 800.116(d) of the Secretary of 
Labor’s Interpretative Bulletin on the Equal P ay  Act. 
That section suggests that a pension plan which paid 
greater benefits to one sex than another or under 
which an employer made unequal contributions based 
upon sex would not constitute an illegal wage dif­
ferential. B ut Section 800.116(d), which is now under 
reconsideration by the Department of Labor, does not 
sanction, or even purport to address, petitioners’ 
practice of requiring greater contributions from the 
wages of women employees, a practice explicitly for­
bidden by Section 800.151 of the same Interpretative 
Bulletin. No conflict exists, therefore, between the 
position of the D epartm ent of Labor and the Equal 
Employment O pportunity Commission with respect to 
the issues raised and decided in this case. Indeed, the 
language of the Equal P ay  Act, its legislative history, 
and the consistent interpretation of the Department 
of Labor all lead to the conclusion that petitioners’ 
sex-based wage differential does not fall within the 
claimed exception to the Equal P ay  Act. That Act, 
therefore, did not authorize petitioners’ explicitly sex- 
based wage distinction which, for the reasons stated 
in point I, supra, violated Title V II.

332



13

A R G U M E N T

I

A POLICY OP DEDUCTING GREATER AMOUNTS FROM THE 
•WAGES OP FEMALE EMPLOYEES THAN PROM THOSE OP 
MALE EMPLOYEES IN  RETURN FOR A CONTINGENT FUTURE 
RIGHT AT AN EQUAL MONTHLY RETIREMENT ALLOWANCE 
YIOLATES TITLE YII

A. p e t it io n e e s ’ p o l ic y  c o n s t it u t e d  d is c r im in a t io n  b a sed  u p o n

SEX

Petitioners’ retirem ent allowance plan classified em­
ployees into two contribution rate groups according to 
a single criterion, that of their sex. Although peti­
tioners pay all similarly situated participants, male 
or female, the same monthly post retirem ent benefits, 
until December 31, 1974, they required women to make 
contributions to the retirem ent plan tha t were 14.84 
percent greater than those required of males. The sole 
basis upon which the employee was assigned the lower 
or the higher contribution rate was the employee’s 
sex. I f  a man, he paid the lower ra te ; if a woman, she 
paid the higher rate. This is an explicit gender-based 
classification. I ts  use for determining pension con­
tributions violates Title V II, at least prima facie 
(see pp. 19-31, in fra), because it discriminates against 
women on account of their sex in  their compensation, 
terms and conditions of employment (Section 703(a) 
(1), 42 U.S.C. 2 0 0 0 e-2 (a )(l)),s and because it  is a

8 Section 703(a) ( l)  of Title V II  makes it an unlawful employ­
ment practice for an employer to “* * * discriminate against any 
individual with respect to his compensation, terms, conditions, or 
privileges of employment, because of such individual’s * * * sex 
* * 4 2  U.S.C. 2000e-2(a)(l). 333



14

classification based upon sex tha t adversely affects in­
dividual female employees (Section 703(a)(2), 42 
TJ.S.C. (Supp. V) 2000e~2(a) (2)).°

Title Y II  bars unequal treatm ent of individual 
women and men based merely on stereotyped charac­
terizations of the sexes. See, e.g., Dothard v. Rawlin- 
son, tfo. 76-422, decided June 27, 1977, slip op. 12; 
Sprogis v. United A ir  Lines, In c ., 444 F . 2d 1194,1198 
(C.A. 7). Accordingly, the courts have consistently 
held tha t tra its  characteristic of the average person 
of one sex may not be used to justify  employment de­
cision's with respect to individual persons of that sex. 
F o r example, though it may generally be true that 
women as a class (“on the average” ) are less strong 
than men as a class, individual women may not he 
penalized by an employment decision excluding all 
women from  a particular job requiring a particular 
degree of strength. E.g., Rosenfeld  v. Southern Par 
cific Company, 444 F. 2d 1219 (CA. 9 ); Bowe v. 
Colgate-Palmolive Comany, 416 F. 2d 711 (C.A. 7). 
Similarly, an employer “ cannot exclude all males 
[from the job of flight attendant] simply because 
most males may not perform  adequately” (em­
phasis in original). Dias v. Pan American W orld Air-

9 Section 703(a) (2) of Title Y II, 42 TJ.S.C. (Supp. V) 2000e- 
2(a) (2), states in relevant part that it shall be an unlawful em­
ployment practice fo r an employer “to limit, segregate, or classify 
his employees * * * in any way which would deprive or tend to 
deprive any individual of employment opportunities or other­
wise adversely affect his status as an employee, because of such in­
dividual’s * * * sex * *

334



15

ways, Inc., 442 F. 2d 385, 388 (C.A. 5), certiorari de­
nied, 404 U.S. 950.10

By analogous reasoning, explicit sex-based discrim­
ination in retirem ent plans rationalized by statistically 
based generalizations concerning men and women also 
violates Title V II. I t  is unlawful to require women to 
retire earlier than men (e.g., Bartmess v. Drewrys 
U.S.A., Inc., 444 F. 2d 1186 (C.A. 7), certiorari denied, 
404 U.S. 939), or to pay smaller periodic benefits to 
men who retire early than to women who retire early. 
Ghastang v. F lynn & Em rich Co., 541 F. 2d 1040, 1042- 
1043 (C.A. 4 ) ; Rosen v. Public Service Electric and 
Gas Co., 477 F. 2d 90 (C.A. .3); Fitzpatrick  v. Bit- 
zer, 390 F. Supp. 278, 285-288 (D. Conn.), reversed 
on other grounds, 427 U.S. 445. The same principles 
require that individual women not be penalized by re­
quiring all women to make greater pension contribu­
tions than all men, even if it be generally true that 
women as a class (“on the average” ) live longer than 
men as a class. As the court of appeals stated, this “is

10 The policy at issue here differs somewhat from the policies 
at, issue in the cited cases in that, while it  is generally possible to 
predict prior to hire, on the basis of objective tests, which women 
and men would be able to perform a particular job, it is more 
difficult and, probably not feasible for group insurance purposes 
to predict even generally how long any individual will live. On 
the other hand, it is not necessary for purposes of a group pension 
plan to devise a method for determining with precision the prob­
able life expectancy of each individual in the group (see infra , 
PP. 28-30).

335



16

ju st the kind of abstract generalization * * * which 
Title Y II  was designed to abolish” (Pet. App. C-7).11

11 There is no reason to treat this distinction on account of sex 
any differently under Title Y II  than one based upon race, religion,, 
or national origin. I f  it  were lawful under Title V II  to require- 
women to contribute more to a pension fund than similarly situated 
men, because of their greater average longevity, then it would pre- 
-sumably also be lawful, for example, to require non-Jews to con­
tribute more than Jews (“By age 65 * * * [Jewish] mortality 
rates were higher than those for the total population at age 65.” 
Fauman and Mayer, “Jewish Mortality in the United States,” in 
Shiloh and Selavan, Ethnic Groups of America: Their Morbid­
ity , Mortality and Behavior Disorders, Vol. I—The Jews, p. 36 
(1973)); to differentiate between white and black employees (see- 
Sutton, “Assessing Mortality and Morbidity Disadvantages of the 
Black Population of the United States,” in Shiloh and Selavan, 
Ethnic Groups of America: Their M orbidity, Mortality and Be­
havior Disorders, Vol. I I —The Blacks, p. 25 (1974)); or to re­
quire Mormons and Seventh Day Adventists to contribute more 
than persons of other religions (“* * * [T]he mortality rates for 
Mormons are substantially lower than those of the general popula­
tion and similar to those of previously reported nonsmoking pop­
ulations in the United States, including Seventh-day Adventists 
as a whole.” Enstrom, “Cancer Mortality Among Mormons”, 36 
Cancer 825, 839 (1975) (footnotes omitted)).

In  addition, although on the average women live longer than 
men, the relative differences in life expectancy vary from popu­
lation to population. For example, while mortality data prepared 
by the State of California show that in the California population 
at large, women age 65-70 have a life expectancy 2.88 years greater 
than men of that age, similar data collected in the California Sev­
enth Day Adventist (SDA) population show that California SDA 
women age 65-70 have a life expectancy only 1.55 years greater 
than California EDA men of that age. Lemon and Kuzma, “A 
Biologic Cost of Smoking,” 18 Archives of Environmental Health. 
American Medical Association, 950, 952-953 (1969). The life ex­
pectancy of California SDA men even exceeds th a t of women in 
the California population at large until age 70 (id. a t 953).

336



17

This burden of paying higher present contributions 
for a contingent fu tu re  right to identical monthly 
pension payments substantially and adversely affects 
the wages of individual women. Although the female 
employee would receive precisely the same monthly 
retirement benefits as her male counterpart, she is 
required to pay approximately 15 percent more from 
her w'ages. D uring the course of a wage earner’s 
career this disparity may translate into wage differ­
ences of several thousand dollars. Even among those 
who eventually qualify for a pension (see note 18, 
infra),12 13 * * * *most women do not ever receive benefits tha t 
even arguably offset this wage disadvantage. Most 
men and women (more than 80 percent) die at the 
same age.18 Petitioners’ method of computing pen-

12 With respect to those employees who will never qualify for 
a pension, the explicitly sex-based discrimination is more obvious. 
Even if the non-qualifying employees’ contributions are returned 
to them at the time of their*separation from employment, Title 
VII is violated by the deferment of a larger proportion of the 
compensation of women employees on the basis of their sex.

13 More than 80 percent of men and women share common death 
ages. Henderson v. State of Oregon, 405 F. Supp. 1271,1275 n. 5
(D. Ore.), appeal docketed, C.A. 9, No. 76-1706, March 30,1976; 
Reilly v. Robertson, 360 N.E. 2d 171, 176 (Ind. Sup. Ct->, certio­
rari denied, No. 76-1635, October 3, 1977. This can be demon­
strated using statistics attached to the Brief of the Teachers 
Insurance and Annuity Association of America and College Re­
tirement Equities Fund as Amici Curiae in this case (Addendum 
A). The figures used in Table I, “Survival Experience of 100,000 
Males and 100,000 Females Retiring at Age. 65, Using 1951 Group
Annuity Mortality Table” have been used below to show the distri­
bution of ago at death for the 100,000 men and 100,000 women
represented in the T IA A -C R E F Table:

337



18

sion contributions on the basis of sex thus puts the 
burden of the higher annuity cost attributable to the 
approximately 14-20 percent of the women who die 
“late” on women exclusively, and assigns the cost 
savings resulting from  the deaths of the approx­
imately 14-20 percent of the men who die “early” 
exclusively to the men (see, also note 18, in fra).1*

Number of deaths Number of -women who
------------------------------------------------- can be paired with men

Age Men Women dying in the same year

66-70___________ 14,188 8 ,087 8,087
71-75__________  18, 656 13, 339 13, 339
76-80___________ 21,914 19,525 19,525
81-85___________ 21,132 21, 949 21,132
86-90___________ 14, 477 18, 791 14, 477
91-95__________  6,959 12,029 6,959
96 and over___ - 2,674 6,280 2, 674

T ota l____  100, 000 100, 000 86,193 * 14

Thus, out of the original group of 100,000 men and 100,000 women, 
approximately 86,193 men and 86,193 women can be paired as 
dying within the same five year age span. The overlap in the dis­
tributions therefore covers more than 85 percent of the total group. 
The difference in the average life expectancy of men and women 
results from the percentage of men who die “early,” unmatched by 
women’s deaths (in the example above, approximately 14 percent 
,.of the men), and the percentage of women who die “late,” un­
matched by men’s deaths (in the example above, approximately
14 percent). Bergmann and Gray, “Equality in Retirement Bene­
fits,” Civil Rights Digest 25 (Fall 1975). The data used in the 
chart above are divided into five year intervals. Use of data di­
vided into one year intervals would produce only slightly dif­
ferent results.

14 Petitioners’ statement (Pet. Br. 5) that “ [t]he contributions 
by the Department for a woman were always greater than for a 
corresponding man,” is incorrect. Petitioners’ answers to interrog-

338



19

Nothing in this Court’s decision in General Electric 
Co. v. Gilbert, 429 TT.S. 125, suggests that the imposi­
tion of these sex based burdens on employment is per­
missible under Title V II . I n  Gilbert, the Court found 
that the exclusion from  a comprehensive disability 
plan of one physical condition with unique character­
istics—pregnancy—did not, in itself, discriminate on 
the basis of sex. I t  considered the disability benefits 
plan as differentiating between pregnant women and 
all other nonpregnant persons, including nonpregnant 
women, i.e., a distinction on a basis other than their 
sex.lj By contrast, the pension plan here classified and 
distinguished between two groups of employees ex­
plicitly and exclusively on the basis of sex. “ The high-

atorics below show that in half of the cases described in the 
record, the Department would have contributed more to the pen­
sion plan in conjunction with the employment of a male than in con­
junction with the employment of the similarly situated female (E. 
176). This results from the fact that the Department’s contribu­
tion to the pension fund in conjunction with a given employee 
consists not only of the accumulated 110 percent matching con­
tributions but also of “minimum pension” contributions, as well as 
the amounts needed to fund survivor benefits under the plan (see, 
e-9-, E. 176, 238-239.

“ Having found that the exclusion of pregnancy from the dis­
ability benefits plan was not per se gender-based discrimination, 
the Court analyzed the plan to determine whether, as a facially 
neutral plan, it had a  gender-based discriminatory effect on one 
class, and found that it did not. 429 U.S. a t 137-140. Here, this 
second inquiry into disparate impact is unnecessary because of 
the gender-based discriminatoiy nature of the pension plan. Even 
if inquiry into the effects of petitioners’ pension system were nec­
essary in this case, it  is clear that here the burden placed upon 
female employees, with respect to their current compensation, is 
greater than that placed upon male employees. Nashville Gas Co. 
v. Satty, No. 75-536, decided December 6, 1977, slip op. 5. See 
infra, p. 36.

339



20

er contribution is required specifically and only from 
women as distinguished from men” (Pet. App. D-2).1*

B. PETITIONEES HAVE SUGGESTED NO ADEQUATE BASIS FOR AN AFFIRMA­
TIVE DEFENSE UNDER TITLE VII

W hat we have said thus fa r is sufficient, in our 
view, to dispose of this case. Petitioners have sug-

16 Judge Kilkenny, dissenting from the denial of the petition 
for rehearing, concluded that this case is governed by General 
Electric Co. v. Gilbert because “the plan is facially nondiscrimina- 
tory to the extent that there is no risk for which one sex is cov­
ered and the other is not” and that there was no showing of gen­
der-based effects because “the aggregate risk protection for men 
and women is identical” (Pet, App. D -6). This analysis fails to 
appreciate that unlike the Gilbert plaintiffs, respondents here do 
not challenge the risk coverage of the pension plan, which is all 
inclusive with respect to the risks faced by males and females 
alike. Respondents’ challenge is instead addressed to the explicitly 
sex-based differential in assessments against wages by which the 
Department’s plan is financed. No similar issue was raised or con­
sidered in Gilbert (which involved neither a contribution sur­
charge for those employees desiring or requiring pregnancy in­
surance nor a sex-based differential in employee contributions).

Moreover, the aggregate analysis of class risks and benefits 
has no place in a case challenging explicit sex discrimination. Ag­
gregate analysis may be a useful tool in demonstrating whether 
facially neutral plans in fact have a gender-based effect. See Gen­
eral Electric Co. v. Gilbert, supra, 429 U.S. at 138; Nashville Gas 
Co. v. Satty, supra, slip op. 8. However, this Court lias never sug­
gested that explicit discrimination on the basis of sex or race can be 
justified by a showing of offsetting benefits to the racial or sox 
class. Such a defense would be inconsistent with the overriding 
purpose of Title V II  “to require employers to treat each employee 
* * * as an individual, and to make job related decisions about 
each employee on the basis of relevant individual characteristics, 
so that the employees’ membership in a racial, ethnic, religious or 
sexual group is irrelevant to the decisions. See Griggs v. Duke 
Power Co., 1071, 401 U.S. 424, 436” (Pet. App. C-7).

340



21

gested, however, that they can justify  the practices at 
issue here by an affirmative defense analogous to a 
showing of business necessity (see A. 109-110, 116).

It is established under Title Y II  that practices 
which are neutral on their face, but which have a dis­
criminatory effect on a class protected by Title V II, 
may be justified by the employer, as an affirmative de­
fense, under the standards of business necessity ap­
plicable in Title V II  cases, Griggs v. Duke Power Co., 
401 U.S. 424, 431. In  order to establish a “ business 
necessity” defense, the employer must prove that 
“ there exists an overriding legitimate business pur­
pose such that the practice is necessary to the safe 
and efficient operation of the business” and that there 
are “available no. acceptable alternative policies or 
practices which would better accomplish the business 
purpose * * * or accomplish it equally well with a 
lesser differential [discriminatory] im pact.” Robin­
son v. Lorillard Corp,, 444 F. 2d 791, 798 (C.A. 4), 
certiorari dismissed, 404 U.S. 1006; see Dothard v. 
Raivlinson, supra, slip op. 10 n. 14.

Because the practices at issue here are not neutral 
on their face, the business necessity justification does 
not apply. At most, petitioners might attempt to rely 
on an analogous affirmative defense designed to show 
that practices which appear discriminatory on their 
face are not in fact discriminatory. I f  such a defense 
for an explicitly sex-based (or race-based or religion- 
based) policy is to be entertained at all, it should be 
justified under standards a t least as stringent as those

341



22

applicable to the business necessity defense, in order 
to avoid unnecessary approval of precisely the sort 
of differentiation by class characteristic that Title 
Y i l  was designed to eliminate. See Craig v. Boren, 
429 U.S. 190, 208-209 n. 22."

Petitioners argue, and we do not dispute, that the 
financial planning of a pension program requires the 
use of actuarial averaging of the varying longevity 
experiences of ascertainable groups because it is im­
possible to determine in advance when any particular 
individual will die, and that actuarial grouping tra­
ditionally has been accomplished by reference to sex. 
Initially, however, we have difficulty in understanding 
how this can serve to justify  sex-based differences in 
the take-home pay of employees who do not currently 
qualify, and a substantial number of whom may never 
qualify, for pension rights.1* Unlike, for example, con-

17 Cf. Dothard v. Rawlinson, supra, slip op. 12, holding that 
the parallel bona fide occupational qualification (BFOQ) defense 
to explicitly sex-based discrimination must, be extremely narrowly 
construed. The B FO Q :defense is inapplicable to the type of dis­
crimination at issue here since, by its terms, BFOQ concerns only 
allegations that the particular sex discrimination in ‘‘occupations" 
(such as in hiring or job assignments) is justified because it is nec­
essary' to the. conduct of the business to have an employee of a 
particular sex perform certain tasks. Dothard v. Rawlinson, supra, 
slip op. 11-12. While the court of appeals here discussed petitioners' 
preferred defense in terms of a BFOQ defense, its analysis is in 
substance that applicable to a business necessity defense (see Pet. 
App.C-10 toC-12).

1S Indeed, while life expectancies are relevant to the estimate of 
pension plan costs, “ [f]or any given schedule of benefits the actual 
costs of a plan depend principally upon the number of participants 
who achieve benefit eligibility."’ Bernstein, The Future of Private

342



23

tributions for disability insurance or life insurance, 
the payment of pension contributions provides an 
employee who has not yet qualified for a pension with 
no present protection or benefit that could arguably 
be a co-existing offset to the burden of a sex-based 
reduction in current compensation. Moreover, since 
1975 petitioners’ plan has functioned, as most plans do 
(see p. 30, in fra) without a sex-based contribution 
schedule. The court of appeals was therefore obviously 
correct in pointing out that while the use of sex as an 
actuarial class may assist pension adm inistrators in 
predicting costs and benefits more accurately, that 
does not mean that “providing a financially sound pen­
sion plan requires [establishing contribution rates ac­
cording to] an actuarial classification based wholly 
on sex” (Pet. App. C - ll ) .

The analogous practice of utilizing racial criteria in 
assessing life insurance costs provides a useful refer­
ence for analyzing petitioners’ proferred justification 
for sex-based distinctions. F or years, it was customary 
for the insurance industry to use race-based actuarial 
criteria as the basis for charging blacks higher life

Pensions 39 (1964). One survey indicates that women, in general, 
w 10 are covered by pension plans are less likely than men to have 
vested rights. Kolodrubetz and Landay, “Coverage and Vesting 
of Full-Time Employees Under Private Retirement Plans,” Social 
eeurity Bulletin 20,27 (November 1973). Among retiring workers 

in another survey, 46 percent of the men and only 21 percent of 
t e women were entitled to pension benefits, and the median benefit 
or entitled women was only $970 per year, as compared to $2,080 
or men. Kolodrubetz, “Private Retirement Benefits and Relation- 

s ip to Earnings: Survey of New Beneficiaries,” Social Security 
bulletin 16 (May 1973).

343



24

insurance rate than whites. See, e.g., James, The 
Metropolitan L ife : A Study in Business Growth 338- 
339 (1976). This practice was defended as racially 
neutral and non-discriminatory because it was “dic­
tated entirely by actuarial findings” (id. a t 338).19 The 
assessment of different life insurance rates for blacks 
and whites on the basis of race, though a valid choice 
as an actuarial matter, is now prohibited by state leg­
islation (ibid.). Actuaries have noted the parallel be­
tween the industry experience with race-based and 
sex-based criteria:

Federal government pressure via the EEOC 
for treating males and females in exactly the 
same way recalls to mind the fact that the 
government took a similar position some decades 
ago with respect to race and imposed a require­
ment tha t insurance companies charge exactly 
the same premiums for the same coverage ir­
respective of race, in spite of the fact that all 
the published m ortality experience then avail­
able, including the m ortality statistics published 
with every decennial census, indicated clearly 
that there were very significant differences in. 
m ortality rates and trends by race.20

19 “Mortality studies * * * showed that the colored death rates 
were running substantially in excess of the white. I t  was clearly 
improper to continue writing both on the same premium rates. 
That would have been discrimination against the whites” (id. at 
339).

20 Fellers and Jackson, “Noninsured Pensioner Mortality: Tl» 
UP-1984 Table,” 25 Proceedings, Conference of Actuaries i» 
Public Practice 456, 459 (1976). “UP-1984” stands for Unisex 
Pension—1984.

344



25

Similarly, actuarial tables based upon sex, while 
customarily used, can be replaced by alternative 
groupings that are equally valid as actuarial pools. 
Since neither segregation nor merger of life expect­
ancy experience by sex is in itself actuarially unsound,
at least with respect to group insurance,21 * 23 the differ­
ing average life expectancies of women as a class and 
men as a class can be merged in calculating total

21 Risk classification in group insurance differs significantly 
from risk classification in individual insurance. In the. latter, the 
factors affecting the particular individual's risk arc computed 
as precisely as possible. See Shepherd and Webster, Selection o f  
Risks 6 (1957). But in group insurance, most of these different 
risks are pooled among all the participants.

Amici Teachers Insurance and Annuity Association of Amer­
ica and College Retirement Equities Fund argue that under a 
sex-neutral contribution scheme “the employer or insurer would 
be forced to take some of the funds contributed by and for the 
men and pay those funds to the women,” and that “ [t]his would 
bo discriminatory in the extreme” (Br. 24). For reasons previ­
ously discussed, however, that argument is unpersunsivo with re­
spect to pension contribution differentials (which are all that is 
at issue here), which involve sex-based differences in take-home 
pay in return for a contingent future right to pension payments. 
Nor, in our view, do similar considerations mean that Title V II  
requires the level of periodic payments to pensioners under a 
plan to be differentiated according to sex. The essence of a group 
pension benefit plan, like group disability insurance coverage, is 
not that all covered individuals will receive proportional aggre­
gate benefits, but that all participants are assured of benefits for 
their covered individual needs tha t actually arise. So long as a 
plan provides for the same level of benefits for all covered indi­
viduals, male or female, for as long as individually needed, it is
consistent, with Title V II. Title V II does not require differ­
entials in cither pension contribution levels or pension payment 
levels on the basis of sox, any more than it requires them on the 
basis of race or religion. See note 11, supra. See, also, notes 27, 33,. 
infra.

345



26

pension risks. The use of merged life expectancy 
tables pools the risks of those groups with different 
m ortality experiences whose risks are not separately 
calculated. In  fact, numerous categories of risk are 
merged in any single classification actuarial table. 
F or example, the different life expectancy experience 
of smokers and non-smokers is “merged” in peti­
tioners’ actuarial calculations.22 Use of a merged, sex- 
neutral table involves a similar pooling, and “the use 
of m ortality rates on a single ‘unisex’ basis has been 
found quite practical for non-insured plans. ” 23 Fellers 
and Jackson, supra, a t 458.

Merging the longevity experiences of men and 
women does not require “resort to an assumption 
(women and men of the same age have equal life 
expectancy) that is demonstrably false” (B rief of 
Teachers Insurance and Annuity Association, p. 23). 
Sex-neutral tables reflect the impact of female longev­
ity experience on the workforce and can be adjusted

22 See Chart Booh on Smoking , Tobacco, and Health , U.S. De- 
partment of Health, Education and Welfare, Public Health Serv­
ice, Publication No. CDC 75-7511, p. 12 (revised 1972). I f  smok­
ers and non-smokers receive the same periodic benefits in a merged 
group, the smokers make greater contributions and the non- 
smokers smaller contributions, than they would if  their experi­
ence were segregated.

23 Petitioners’ pension program is a non-insured plan. See Brief 
for the Society of Actuaries, p. 5.

346



27

to reflect the female composition of a particular pen­
sion plan’s employee group.'"4 Title V II  does not pre­
clude the consideration of all relevant actuarial data 
including the sex or race mix of a particular work­
force in order to estimate as accurately as possible 
the total cost of the pension plan. Actuaries them­
selves have recognized tha t the government “is not 
questioning the fact tha t differences in mortality 
rates for males and females have been observed in the 24

24 Fellers and Jackson, who have developed a sex-neutral mor­
tality table, have explained how it would function:

The TJP-1984; Table has been developed as a composite 
mortality table which, if used without adjustment, is ap­
propriate for the valuation of pension plans covering groups 
having a 10-30 per cent female content. The table can be 
set forward one year in age for use with groups with less 
than 10 per cent female content, set back one year in age for 
groups having 30-50 per cent female content, and so on. The 
use of a composite table for the actuarial valuation of 
pension benefits should not be considered less accurate or 
less scientific than the use of sex-segregated mortality tables, 
because statistically significant data relative to the differ­
entials by sex in pay-increase factors, early retirement rates, 
disability retirement rates, and rates of withdrawal from 
service generally are not available on a company-by-com­
pany or even an industry-wide basis. The costs of projected 
pensions must thus be based on so many estimates and 
assumptions that are not subject to accurate delineation by 
sex that the use of sex-segregated mortality rates is a 
refinement in the actuarial valuation process that is not 
justified on statistical or financial grounds.

Fellers and Jackson, swpra, note 20, a t 483-484.

347



28

past, nor that such differences must be considered in 
estimating costs for the fu tu re .” 25

Title Y II  does, however, preclude differential de­
ductions from  wages governed by a sex or race based 
allocation of the total cost of a pension plan. An ob­
vious alternative is that used by petitioners since 
1975—that employees share equally the risk of longer 
life expectancy by a small percentage of females and 
shorter life expectancy by a small percentage of 
males. The American Council of Life Insurance (Br. 
44) argues that such equal sharing of risks by all 
employees “violate[s] the basic insurance concept * * * 
tha t only applicants who are exposed to comparable 
degrees of risk should be placed in the same premium 
class.” W hatever the merits of tha t view as to indi­
vidual insurance,26 it is unpersuasive in  the context

25 Fellers and Jackson, supra, note 20, at 482. Thus we do 
not contest that the sex mix of a particular pensioner group may 
be considered in order to determine the total estimated cost of a 
pension plan. A plan with a pensioner population tha t is 90 per­
cent female will ultimately have to pay out a greater amount of 
benefits than a plan with a pensioner population that is only 10 
percent female. The same type of difference is true of a pensioner 
population that has 90 percent nonsmokers as compared to only 10 
percent nonsmokers.

26 The dissenting judge in the court of appeals thought it signifi­
cant that a female who purchased an annuity as an individual from 
a commercial insurance company would have paid more than her 
male counterpart (Pet. App. D -7 ). However, the fact that private 
insurance companies make explicit sex based distinctions, as they 
once made explicit race based distinctions, in setting rates does not 
insulate employers who establish insurance programs from their 
obligations under Title V II. The commercial sale of insurance is 
not a term or condition of employment and therefore is not subject

348



29

of group insurance in  which by definition costs are di­
vided equally among group members, many of whom 
are differently situated. F or example, under peti­
tioners’ plan the cost of longer average life expectan­
cies of non-smokers is shared equally by smokers and 
non-smokers alike and both black and white employees 
share equally in the cost of longer average life expec­
tancies of white employees. In  any event, as the brief 
of the Society of Actuaries and the American Acad­
emy of Actuaries acknowledges, there are important 
exceptions to the concept of “ actuarial equity,” one 
of which is that “ certain classifications which may be 
perfectly feasible from an actuarial standpoint may 
be barred by others for reasons of social policy” (Br. 
11). Title Y II  represents a congressional policy deci­
sion that sex-based distinctions with respect to em­
ployment, however feasible, traditional or convenient, 
cannot (except in certain narrowly limited circum­
stances) be the basis of decisions with respect to wages 
and terms and conditions of employment.

The Brief Amicus Curiae of American Council of 
Life Insurance suggests tha t “ [t]he decision below * * * 
will require radical, changes in the pension and retire­
ment coverage available to American workers” (Br. 
42). Those fears are unsupportable. The decision below 
held only that employer self-insured pension plans 
cannot differentiate between men and women with

to the statutory prohibition in Title Y II against race or sex dis­
crimination. By contrast, the provision of insurance as an incident 
to employment does trigger the Title Y II prohibition against dis­
crimination on the basis of sex or race.

349



3 0

respect to deductions from wages. As the Brief for 
the Society of Actuaries and the American Academy 
of Actuaries as Amici Curiae notes (p. 18), “ [m]ost 
defined benefit plans are noncontributory.” As to the 
minority that require employee contributions, those 
contributions “are almost always—unlike the plan in 
the case at bar—unrelated to age or sex” (ibicl). The 
brief concludes, “ [s]ince defined benefit plans which 
provide for different contribution rates for male and 
female employees are exceedingly rare, there would 
not be a widespread effect if  equal employee con­
tribution rates were to be required in the case at 
b a r”  (ibid.).

Tradition and ease of adm inistration are therefore 
insufficient justification for the use of a prohibited cri­
terion here, especially in light of the available nondis- 
crim inatory option of utilizing general, sex-neutral 
actuarial tables that are of equal actuarial validity. 
Petitioners’ discontinuance as of January  1, 1975, of 
its sex-based policy in  favor of equal contribution 
rates for male and female employees belies any claim 
tha t its previous sex differentiated contribution rates 
were necessary to an actuarially sound pension plan. 
The courts below therefore properly found that peti­
tioners’ proffered justifications could not, in the cir­
cumstances of this ease, show tha t differential contri­
bution rates based exclusively on sex were essential to 
the “business function” of providing employees with 
“a stable and secure pension program ” (Pet. App. 
C—11). Nor, for the reasons we have previously dis-

3 5 0



31

cussed, could petitioners show that its plan of unequal 
current takehome pay, in retu rn  for the possibility of 
a future right to equal periodic pension payments, was 
nondiscriminatory in operation. I t  was, accordingly, 
proper to grant summary judgm ent in favor of the re­
spondents, and this Court should affirm the decision 
of the court of appeals, which correctly is “ based 
upon the fundamental Title V II  precept that gen­
eralizations relating to sex, race, religion, and na­
tional origin cannot be perm itted to influence the 
terms and conditions of an individual’s employment” 
(emphasis in original) (Pet. App. C-21, quoting 
EEOC Dec. No. 75-146, January  13, 1975, CCH Em­
ployment Practices Guide, 5 6447, p. 4191).27

2( In 1966 the EEO C’s General Counsel issued an opinion letter 
which, without particular reference to pension plans, can be read 
to approve generally the type of practice here. 401 F.E.P. Rep. 
3011-3012. This was not a binding Commission opinion, 
w® 33 Fed- Keg. 18692. The EEO C’s position has evolved. The 
nEOC’s original Sex Discrimination Guidelines primarily 
addressed the most obvious forms of sex-based discrimination and 
did not discuss retirement and pension plans. 30 Fed. Reg. 14926- 
14928. In  1968, the EEOC amended its Guidelines, referring 
formally for the first time to pension and retirement plans, stating 
specifically that a difference in optional or compulsory retirement 
ages based on sex violates Title V II, and, more generally, that 
Lojther differences based on sex, such as differences in benefits 
or survivors, will be decided by the Commission by the issuance 

of Commission decisions in cases raising such issues.” 33 Fed. Reg.
. . EEOC issued the present more detailed Sex Discrim­
ination Guidelines in 1972. 37 Fed. Reg. 6835-6837. Those guide- 
mes state that it is an unlawful employment practice for an 

employer to discriminate between men and women with regard 
1° fnnge benefits,” or to have a pension plan which “differentiates 
m benefits on the basis of sex” (29 C.F.R. 1604.9(b), ( f ) ) ,  and 

Lift shall not be a defense under title V III  [sic] to a charge

351



32

II

A REQUIREMENT THAT FEMALE EMPLOYEES CONTRIBUTE 
MORE TO A PENSION PLAN T H A N  SIMILARLY SITUATED 
MALE EMPLOYEES VIOLATES TH E EQUAL PAY ACT

The Bennett Amendment of Title Y I I  of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-2(h), incorporates 
the exceptions to the prohibitions of the Equal Pay 
Act into Title Y I I  by authorizing wage differences if 
“ such differentiation is authorized by the provisions 
of section 206(d) of Title 29 [the Equal P ay  Act].” 2’ 
The Equal P ay  Act provides in pertinent p a rt:

of sex discrimination in benefits that the cost of such benefits is 
greater with respect to one sex than the other” (29 C.F.R, 1604.9
( o ) ) .

In  an area as complex as employment discrimination, evolving 
positions are to bo expected. Congress recognized as much in 
acknowledging in 1972 that its perception of the nature of employ­
ment discrimination had evolved. S. Rep. No. 92-415, 92d Cong., 
1st Sess., p. 5 (1971). Even if the EEO C ’s 1972 guidelines on this 
matter did constitute a significant change in its interpretation, 
they are nevertheless entitled to great weight because they are 
based upon the Commission’s “cumulative experience.” National 
Labor Relations Board v. Weingarten, Inc., 420 U.S. 251, 266; 
National Labor Relations Board v. Seven-Up Bottling Go., 344 
U.S. 344, 349. Seo Espinosa v. Fara.h Mfg.  Co., 414 U.S. 86, 94; cf. 
General Electric Co. v. Gilbert, 429 U.S. 125, 140-145.

28 General Electric Co. v. Gilbert, supra, 429 U.S. at 144. Peti­
tioners argue that a colloquy between Senators Randolph and 
Humphrey (cited by this Court in General Electric Co. v. Gilbert, 
supra, 429 U.S. at 144) during debate on Title Y II  demonstrates 
that Congress contemplated that the practice here at issue would 
be lawful under the Equal Pay Act. The exchange reads, in its 
entirety, as follows (110 Cong. Rec. 13663-13664 (1964)):

Mr. R andolph. Mr. President. I  wish to ask of the Sena­
tor from Minnesota [Mr. Humphrey], who is the effective

352



33

ISTo employer * * * shall discriminate, within 
any establishment * * *, between employees on

manager of the pending bill, a clarifying question on the 
provisions of title V II.
I  have in mind that the social security system, in certain 
respects, treats men and women differently. For example, 
widows’ benefits are paid automatically; but a widower 
qualifies only if  he is disabled or if  he was actually sup­
ported by his deceased wife. Also, the wife of a retired 
employee entitled to social security receives an additional 
old age benefit; but the husband of such an employee does 
not. These differences in treatment as I  recall, are of long 
standing.

Am I  correct, I  ask the Senator from Minnesota, in as­
suming that similar differences of treatment in industrial 
benefit plans, including earlier retirement options for 
women, may continue in operation under this bill, if  it 
becomes law ?

Mr. H u m ph k ey . Yes. T hat point was made unmistakably 
clear earlier today by the adoption of the Bennett amend­
ment ; so there can be no doubt about it.

Although this interchange is not without ambiguity, it appears 
to have been intended primarily as an assurance that the Equal 
Pay Act and its exemptions would be incorporated into Title VII. 
It does not purport to be a careful consideration of the meaning 
of the Equal Pay Act itself as it applies to industrial benefit plans. 
Since the interchange occurred one year after the passage of the 
Equal Pay Act, it  would hardly be a reliable indication of Con­
gress’ intent in enacting that legislation. See International 
Brotherhood of Teamsters v. United States, 431 U.S. 324, 354 n. 
39. In fact, the social security provisions referred to by Senator 
Randolph were held unconstitutional in Calif ano v. Goldfarb, 430 
U.S. 199; the retirement options (which do not constitute wage 
differentials) are not covered by the Equal Pay Act, and differen­
tial retirement ages have consistently been held unlawful (see 
cases cited, supra, at 15). A t all events, the interchange makes no 
reference to sex-based distinctions in deductions from wages, and 
any attempt to read it as suggesting that such distinctions would 
be authorized would be inconsistent with the balance of the legisla­
tive history as we demonstrate herein.

3 5 3



34

the basis of sex by paying wages to employees in 
such establishment a t a rate  less than the rate 
at which he pays wages to employees of the 
opposite sex * * * for equal work on jobs the 
performance of which requires equal skill, ef­
fort, and responsibility, and which are per­
formed under similar working conditions, ex­
cept where such payment is made pursuant to
(i) a seniority system; (ii) a m erit system; 
(iii) a system which measures earnings by 
quantity or quality of production; or (iv) a 
differential based on any other factor other 
than sex * * *. [29 U.S.C. 206(d) (1).]

Petitioners argue that the fourth exception to the 
Equal Pay  Act, allowing “ a differential based on any 
other factor other than sex, ” permits a sex-based 
allocation of pension plan costs irrespective of what 
would otherwise be a Title Y I I  violation (Pet. Br. 24). 
However, as the court of appeals stated (Pet. App. 
C -13 ):

it does not seem reasonable to us to say that 
an actuarial distinction based entirely on sex 
is “based on any other factor other than sex.” 
Sex is exactly what it is based on.

The legislative history of the Equal P ay  Act as well 
as administrative interpretation by the Department 
of Labor support the conclusion drawn from  the plain 
meaning of the statute tha t the fourth exception can­
not be invoked to insulate petitioners’ plan from Title 
Y II  scrutiny.

Congress’ purpose in passing the Equal P ay  Act was 
to “eliminate the depressing effects on living stand­
ards of reduced wages for female workers and the eco-



35

nomic and social consequences which flow from 
[them].” Shultz v. Wheaton Glass Company, 421 F. 
2d 259, 265 (C.A. 3 ); see also Shultz v. American Can 
Company-Dixie Products, 424 F. 2d 356, 360 (C.A. 8). 
See also Section 2(a) of the Equal P ay  Act, 77 Stat. 
56; Section 2 (a) of the F a ir Labor Standards Act of 
1938, 52 Stat. 1060, 29 U.S.C. 202(a). As stated by 
Senator H art during the debates on the equal pay bill 
(109 Cong. Rec. 8916 (1963)) :

Women are working to earn a living, to sup­
port families or to contribute to the fam ily’s 
ability to send the children to college—in addi­
tion to whatever personal sense of achievement 
may be involved. The supermarket does not have 
a special price on its groceries for women, the 
doctor does not have a special rate for them, 
their rent is not based on sex. W hy then do we 
allow a pay differential to continue which gives 
them a smaller paycheck than others perform ­
ing the same work ?

A violation of the Equal P ay  Act occurs if the take- 
home pay of members of one sex is less than that of 
members of the other sex, performing the same work 
regardless of whether they are paid the same basic 
salary. Payments made to satisfy the wage require­
ments set forth in Section 6 of the F a ir  Labor Stand­
ards Act, 29 U.S.C. 206 (which contains the Equal 
Pay Act, 29 U.S.C. 206(d)), must be “uncon­
ditional”—i.e., they must be “free and clear”, Brennan 
v- Veterans Cleaning Service, Inc., 482 F. 2d 1362, 
1369 (C.A. 5), and the employee must actually have 
use of the money. See, e.g., Shultz v. Hinojosa,

3 5 5



36

432 F. 2d 259 (C.A. 5 ) ; Veterans Cleaning Serv­
ice, Inc., supra; Brennan v. Heard , 491 F. 2d 1, 3-4 
(C.A. 5). H ere the women’s wages were not “equal” 
to the men’s since p a rt of their wages had to be 
paid back in the form  of an additional contribu­
tion to the pension plan.29 The women thus had “ un­
conditional” control of a smaller wage than the men; 
they had less money “ to allocate * * * among com­
peting economic and personal interests” (Brennan v. 
Heard, supra, 491 F. 2d a t 4). Absent some exception, 
this unequal pay scheme would constitute a violation 
of the Equal P ay  Act.

To justify  an exemption for their unequal pay 
scheme from both the Equal P ay  Act and Title VII, 
petitioners claim that the purpose of the exemption 
authorizing “a differential based on any other 
factor other than sex” (29 U.S.C. 206(d) (1) (iv)) 
was to perm it overtly sex-based classifications (Br. 
15), but the plain meaning of the language “other

29 Even if  it is assumed (since there is no record on this point) 
that a women terminating her employment with the petitioner em­
ployer could at that time withdraw her own contributions, which, 
because of the higher contribution required by the plan, would 
exceed the amounts accumulated by a similarly situated man, that 
would not cure the equal pay violation even with respect to such 
non-pensioners. The wages required by the F a ir Labor Standards 
Act must be paid promptly (Rigopoulos v. Kervan, 140 F. 2d 506, 
507 (C.A. 2 )). The possible recoupment of a lump sum many 
months or years later does not satisfy the requirement of equal pay 
(cf. Roland Electrical Go. v. Black, 163 F. 2d 417, 421 (C.A. 4), 
certiorari denied, 333 U.S. 854); nor does it meet the Act’s purpose 
of increasing the wages of women workers so that they can enjoy 
a better living standard. Money which may or may not be recouped 
at some later indefinite time does not pay bills or mortgage pay­
ments. Brooklyn Bank v. O'Neil, 324 U.S. 697, 707-708 and n. 20.

356



37

than sex” is to preclude ra ther than perm it sex-based 
pay decisions. Moreover, the reference to “any other 
factor” suggests by its terms that the first three sex- 
neutral exceptions, (1) seniority, (2) merit, and (3) 
quantity or quality of production, are examples. Con­
gressman Griffin, a supporter of the Equal P ay  Act, 
made that understanding explicit, stating “ [r]om an 
numeral iv is a broad principle, and those preceding 
it are really examples” (109 Cong. Ree. 9203 (1963)).

The legislative reports emphasize that Congress 
intended the fourth exception as an authorization 
basically limited to sex-neutral classifications.30 As re­
ported by the Senate Committee on Labor and Public 
Welfare, the bill (S. 1409) provided one exception to 
the equal pay for equal work principle, “where such a 
wage differential is based on any factor or factors 
other than sex.” The exception examples cited in the 
Committee Report make clear that the factors upon 
which the differential is based must relate to sex- 
neutral distinctions and not some generalization with 
respect to women as a whole. Thus “ seniority systems 
are valid exceptions provided they are based on tenure 
and not upon sex,” as is “ a m erit system or piecework 
system which measures either the quantity or quality 
of production or perform ance” (S. Rep. No. 176, 88th 
Cong., 1st Sess., p. 4 (1963)). The House Committee 
bill (H.R. 6060) contained the general exception con­
tained in the Senate bill, as well as the three specific 
exceptions that now appear in  the Act. The House

. (The extremely narrow possible exception to this limitation 
is discussed infra, pp. 39-41.

357



38

Committee on Education and Labor also emphasized that 
its intent was to exempt sex-neutral distinctions (H.R. 
Rep. No. 309, 88th Cong., 1st Sess., p. 3 (1963)):

[A ]ny discrimination based upon any of these 
exceptions shall be exempted from the operation 
of this statute. As it is impossible to list each 
and every exception, the broad general exclu­
sion has been also included. Thus, among other 
things, shift differentials, restrictions on or dif­
ferences based on time of day worked, hours of 
work, lifting or moving heavy objects, differ­
ences based on experience, training, or ability 
would also be excluded.

Petitioners’ claim (B r. 15) that the exception was 
intended to justify  differential payments based upon 
a sex classification is totally inconsistent with this leg­
islative history.31 Supporters of the Equal Pay  Act

31 The dissenting judge below noted (Pet. App. D-S) that the 
Pension Benefit Guaranty Corporation (PBG C), which insures 
benefit plans under the Employee Retirement Income Security 
Act, had recognized the use of sex segregated actuarial tables in 
adopting interim regulations. The PBGC has used sex-based mor­
tality tables to value benefits in order to relate its valuation rates 
to the anticipated actual cost guaranteeing participants’ pensions. 
29 C.F.R. P a rt 2610, 41 Fed. Reg. 48484, 48489 (November 3, 
1976). The PBGC has adopted final regulations for determining 
the maximum benefits guaranteed each participant under Title IV 
of E R ISA  (see 29 C.F.R. 2609.4); it there required the use of sex- 
neutral factors because “it felt that all participants of the same 
ago should receive the same benefit protection from PBGC, regard­
less of the participant’s sex in recognition of the similar needs of 
all retired workers” (41 Fed. Reg. 6194, 6195). Moreover, in pro­
viding in E R ISA  for the rights of participants in private pension 
plans to an accrued benefit derived from their own contributions. 
Congress required the annuity to be calculated on the basis or 
specified factors which do not include any reference to sex. See 29 
U.S.C. (Supp. V) 1054(c)(2).

358



39

did indicate tha t Congress intended to perm it a fa­
cially sex-neutral classification even if it had a statis­
tically different effect on male and female workers. 
Congressman Griffin stated (109 Cong. Ree. 9206 
(1963)):

Some say tha t women are prone to absen­
teeism -som e women may be and other women 
may not be prone to absenteeism. So long as 
the differential is made on the basis of such 
factors as absenteeism, or on the basis of 
time actually worked, and not on the basis of 
sex, then the wage differential will not violate 
this legislation.

But Congress never indicated tha t a statistical show­
ing of the kind proferred by petitioners would justify  
an overtly sexual classification as a proper basis for a 
wage differential. See 29 C.F.R. 800.142-800.148.

Petitioners assert tha t both houses of Congress 
“considered longevity as a basis for adding the gen­
eral exception to the Equal P ay  A ct” (Pet. Br. Exh. 
0-3, n. 2). The Senate R eport did consider the prob­
lem posed by “ the longer life span of women in pen­
sion benefits” (S. Rep. No. 176, supra, a t 4) and ap­
pears to have recognized the possibility that upon a 
proper showing the Secretary “ can perm it an excep­
tion” based upon class-based costs (idid.). That under­
standing is not reflected elsewhere in the legislative 
history. More importantly, the Senate Report empha­
sizes that any such wage differentials cannot be justi­
fied, as petitioners attem pt to do here, by reference 
to a single item of cost, but only upon the basis of a

359



4 0

demonstration with respect to of the elements of 
the employment costs of both men and women” 
(ibid.).

The Senate R eport states (S. Rep. No. 176, supra, 
at 4; emphasis added) :

During the course of the hearings, testimony 
was introduced on the question of the cost 
which employers encounter in the employment 
of women which they do not encounter in the 
employment of men. * * * Some employers 
stated tha t the cost of their pension and wel­
fare plans were higher for women than men 
because of m aternity costs in their health bene­
fits and because of the longer life span of 
women in pension benefits.

This question of added cost resulting from 
the employment of women is one tha t can be 
only answered by an ad hoc investigation. 
Evidence was presented to indicate tha t while 
there may be alleged added costs, these were 
more than compensated for by the higher 
productivity of women against men perform­
ing the same work and tha t the overall result 
for the employer was a lesser production cost 
than would result from  the hiring of only men. 
Eurtherm ore, questions can legitimately be 
raised as to the accuracy of defining such costs 
as pension and welfare payments as related 
to sex. I t  has been pointed out tha t the higher 
susceptibility of men to disabling in jury  can 
result in a greater cost to the employer, and 
tha t these figures as to health and welfare costs 
can only be applied plantwide. I t  may be that 
it is more expensive to hire women in one

3 6 0



41

department but it is more expensive to hire 
men in another, and overall cost figures may 
demonstrate conclusively that the employer has 
made a sound decision to hire women and pay 
them on an equal basis.

I t  is the intention of the committee that 
where it can be shown that, on the basis of all 
of the elements of the employment costs of 
both men and women, an employer will be 
economically penalized by the elimination of 
a wage differential, the Secretary can perm it 
an exception similar to those he can perm it 
for a bona fide seniority system or other ex­
ception mentioned above.

Thus, nothing in the legislative history of the Equal 
Pay Act indicates tha t wage differentials can be 
justified on the basis of average cost of a single item 
(e.g., pension insurance) grouped by sex.

Petitioners seek support for a contrary view of the 
Act’s requirement in Section 800.116(d) of the Secre­
tary’s In terpretative Bulletin (29 C.F.R. 800.116(d)). 
That Section provides tha t i t  shall not constitute an 
illegal wage differential for a pension plan to pay 
greater benefits to one sex than to the other if the em­
ployer’s contributions are equal fo r men and women, 
and that the mere fact tha t the employer may make 
unequal contributions for employees of opposite sexes 
will not be considered to be an illegal wage differen­
tial if the resulting benefits are equal for similarly 
situated employees.32 Section 800.116(d) does not

The Interpretative Bulletin provides th a t:
I f  employer contributions to a plan providing insurance 

or similar benefits to employees are equal for both men and
361



42

sanction petitioners’ practice of requiring greater con­
tributions from the wages of the ir women employees 
in  order to offset the average increased cost of their 
pension benefits.33 The Secretary of Labor has never 
approved a practice of requiring female employees to 
make contributions to a pension plan which are larger 
than those required of similarly situated male em­
ployees. Indeed, the Secretary’s Interpretative Bul­
letin on Equal P ay  states in pertinent p a rt that (29
C.F.R. 800.151; emphasis added) :

A wage differential based on claimed differ­
ences between the average cost of employing 
the employer’s women workers as a group and

women, no wage differential prohibited by the equal pay pro­
visions will result from such payments, even though the 
benefits which accrue to the employees in question are 
greater for one sex than for the other. The mere fact that 
the employer may make unequal contributions for employees 
of opposite sexes in such a situation will not, however, be 
considered to indicate that the employer’s payments are in 
violation of section 6(d), if  the resulting benefits are equal 
for such employees. [29 C.F.R. 800.116(d).]

38 Am ici have emphasized the conflict between the EEOC Guide­
lines and Section 800.116(d) of the Wage and H our Administra­
tor’s Interpretative Bulletin. However, there is no conflict in this 
case since it  is Section 800.151 (discussed in  the text, infra), not 
800.116(d), which is applicable to  the practice a t issue. Even 
though there is therefore no conflict for this Court to resolve in 
this case, we note tha t the EEOC Guidelines were amended in 
1968 and 1972, after experience with T itle V II  of the Civil 
Rights Act, while the W age-Hour interpretations were issued in 
1965-1966 and have not been updated to reflect experience .and 
judicial interpretations. The Department of Labor is currently 
reconsidering29 C.F.R. 800.116(d).

362



43

the average cost of employing the men workers 
as a group does not qualify as a differential 
based on any “factor other than  sex,” and 
would result in a violation of the equal pay 
provisions, if  the equal pay standard otherwise 
applies. To group employees solely on the basis 
of sex for purposes of comparison of costs 
necessarily rests on the assumption tha t the sex 
factor alone may justify  the wage differential— 
an assumption plainly contrary to the terms 
and purpose of the Equal P ay  Act. Wage d if­
ferentials so based would serve only to perpet­
uate and promote the very discrimination at 
which the A ct is directed, because in any group­
ing by sex of the employees to which the cost 
data relates, the group cost experience is neces­
sarily assessed against an individual of one sex 
without regard to whether it costs an employer 
more or less to employ such individual than a 
particular individual of the opposite sex under 
similar working conditions in jobs requiring 
equal skill, effort, and responsibilty.

The Secretary of Labor has taken the same position 
in litigation. In  W irtz  v. Midwest Mfg.  Corp., 58 
CCH Lab Cases 5 32,070, 18 W H  Cases 556 (S.D. 111., 
decided August 9, 1968), the Secretary of Labor 
brought an Equal P ay  Act suit to eliminate a sex- 
based wage differential. The company claimed that 
the differential was justified as “a factor other than 
sex” because of the additional cost required to pro­
vide its women employees equal unemployment com­
pensation, workmen’s compensation, and accident and 
health insurance. The court, in  a consent decree filed 
by the parties, ruled th a t a wage differential based on

363



44

“claimed differences between the average cost of em­
ploying women employees as a group and the average 
cost of employing men employees as a group * * * 
does not qualify as a differential based on any ‘other 
factor other than sex’ ” (Concl. of Law, 7, 18 WH 
Cases at 560-561; emphasis in original).

Finally, in an opinion letter dated June 18, 1964,1“ 
the A dm inistrator of the W age and H our Division 
of the D epartm ent of Labor addressed the question 
whether an employer could m aintain an hourly wage 
differential based on data showing tha t pension bene­
fits, hospitalization and medical insurance, turnover 
costs and rest period benefits cost more per hour for 
woman than for men. The A dm inistrator disapproved 
the wage differential, stating tha t the “factor other 
than sex” exception (29 U.S.C. 206(d) (1) (iv)) 
could not be claimed where the employer had analyzed 
only some but not “all of the elements of employment 
costs.”

The issue involved in this case, in Midivest Mfg. 
Corp. and in  the A dm inistrator’s opinion le tter is basi­
cally the same—whether the asserted extra cost of pro­
viding female employees with pension or other benefits 
perm its the employer to compensate women with low­
er take-home pay than similarly situated male em­
ployees.85 The language of the Equal P ay  Act, its

34 The opinion letter is published in BNA Wage-Hour Manual 
95 :607.

35 Indeed, the conclusion in the present case follows a fortiori 
from Midwest and the opinion letter because women employees 
here who have not yet qualified fo r a pension are receiving no 
concurrent protection or benefit in return for the reduction in their 
take-home pay.

364



45

legislative history and the consistent interpretation of 
the Department of Labor compel the conclusion that 
this practice does not fall w ithin the exemptions to 
the Equal P ay  Act. That Act, accordingly, did not 
authorize petitioners’ plan which, for the reasons 
discussed in point I , supra, violated Title V I I ’s pro­
hibition of discrimination on the basis of sex.

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.
W ade H. M cCree, Jr.,

Solicitor General.
D rew S. D ays, I I I ,
Assistant A ttorney General.
L awrence Gl. W allace, 

D eputy Solicitor General.
T homas S. M artin,

Assistant to the Solicitor General.
B rian K . L andsberg,
Cynthia  L. A ttwood,

Attorneys.
Abner W . S ibal,

General Counsel,
J oseph T. E ddins,

Associate General Counsel,
Beatrice R osenberg,

Assistant General Counsel,
Mary-H elen M atjtner,

Attorney,
Equal Em ploym ent Opportunity Commis­

sion.

D e c e m b e r  1 9 7 7 .

365





I n  t h e

Gkmrt 0! tin' Hmtpfc
October T erm, 1977 

No. 76-1810

City of L os A ngeles, D epartment oe 
W ater and P ower, et al.,

—v.—
Petitioners,

Marie Manhart, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE OF AMERICAN CIVIL LIBERTIES 
UNION AND AMERICAN ASSOCIATION OF 

UNIVERSITY PROFESSORS

Matthew W. F in k in  
General Counsel 
American Association of 

University Professors 
Southern Methodist 

University School of Law 
Dallas, Texas 75275

R uth  B ader Ginsburg 
S usan  D eller R oss 
K athleen W illert P eratis 
Marjorie Mazbn S mith  
B ruce J. E n n is

American Civil Liberties 
Union Foundation 

22 East 40th Street 
New York, New York 10016

Attorneys for Amici Curiae

367





TABLE OF CONTENTS

PAGE

Interest of Amici ...........................................................  1

Opinions Below ................................................................. 4

Statutes and Regulations Involved.................................  5

Question Presented .......... ................... .......... .................  8

Statement of the Case.......................................................  8

Summary of Argument ...........     8

Argument :

I. Providing all Female Employees Less Take- 
Home Pay than all Similarly-Situated Male 
Employees Because Women “on the Average” 
Live Longer Than Men Violates Title VII of
the 1964 Civil Rights A ct................................. 14

A. The Employer Policy at Issue Classifies 
Employees on the Basis of “Gender as 
Such” in Violation of Section 703(a) of 
Title V I I ...................................................  14

B. The Traditional Insurance Custom of 
Computing Mortality Rates on a Sex- 
Segregated Basis Does Not Constitute a 
Defense to an Employer Policy of 
Overtly Discriminating Against Female 
Employees by According Them Either 
Lower Take-Home Pay or Lower Retire­
ment Benefits Than Identically-Situated 
Male Employees ......................................  25

369



PAGE

1. The Employer Defense: Cost ..........

2. Insurance Industry Objections .......

a. Insurers’ Reliance on Group-
Based Experience .......................... 32

b. Equity and Risk Classification .... 36

c. Adverse Selection .........................  39

C. The Bennett Amendment Provides No 
Defense to an Employer Policy of Pay­
ing Women Lower Take-Hoxne Wages or 
Retirement Benefits Than M en..............  44

1. Section 703(h) does not provide an
exemption for the overtly sex-based 
wage policy at issue .........................

2. The Humphrey-Randolph colloquy
does not indicate a Congressional in­
tent to allow gender lines which op­
erate to the detriment of women 
workers ...........................................   48

3. The Wage and Hour Administrator’s
interpretive regulation, 29 C.F.R. 
^800.116 (d), s not entitled to def­
erence ...................................................  51

4. EEOC’s guidelines on pension plans
are entitled to deference .................... 59 II.

II. The Decision Below Accords With This 
Court’s Principal Equal Protection/Gender 
Classification Decision ....................................  63



Ill

III. Congressional Authority Uader Section 5 of 
the Fourteenth Amendment and the Com­
merce Clause Plainly Supports Application 
of Title VIPs Ban on Sex Classification to the

PAGE

Case at B a r .........................................................  66

Coxcltjsiojt _____________________________________ __  68

Appen d ix  :

Order .......... .............. ........... _......................................  69

T able of A uthorities

Cases:

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) .... 30

Bartmess v. Drewrys U.S.A., Inc., 444 F.2d 1186 (7th
Cir.), cert, denied, 404 U.S. 939 (1971) .......21,22,42,49

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 
1969) .......................... .....................................................  18

Califano v. Goldfarb, 430 U.S. 199 (1977) .......13,16, 35,43,
50, 63, 64, 65

Califano v. Webster, 97 S. Ct. 1192 (1977) .......21, 42,49, 50
Chastang v. Flynn & Emrich Co., 541 F.2d 1040 (4th

Cir. 1976) ............................................................... .........  20
Corning Glass Works v. Brennan, 417 U.S. 188

(1974) ................ ..... ..........................................30, 46, 47, 54
Craig v. Boren, 429 U.S. 190 (1976) ...........13, 39, 63, 64, 65

Dotkard v. Rawlinson, 97 S. Ct. 2720 (1977) .......14,15,16,
17,18,19, 26, 27, 29

371



IV

Diaz v. Pan American World Airways, 442 F.2d 385 
(5th Cir.), cert, denied, 404 U.S. 950 (1971) ...........27, 30

EEOC v. Colby. College, 15 FE P  Cases 1363 (D.Me. 
Nov. 17, 1977) ............................................................19,20

Fillinger v. East Ohio Gas Co., 4 F E P  Cases 73 (N.D.
Ohio 1971)  ..................................................................21,22

Fitzpatrick v. Bitzer, 390 F.Supp. 278 (D.Conn. 1974), 
appealed on other grounds, 427 U.S. 445 (1976) ....21,66 

Frontiero v. Richardson, 411 U.S. 677 (1973) ............50,65

Gednldig v. Aeillo, 417 U.S. 484 (1974) ...................  65
General Electric Co. v. Gilbert, 429 U.S. 125 (1976) ....12,14,

15,18, 29, 44, 50, 51, 53, 59, 63,65

Henderson v. Oregon, 405 F. Supp. 1271 (D.Ore.
1975)  16,19

Hodgson v. Behrens Drag Co., 475 F.2d 1041 (5th 
Cir.), cert, denied, 414 U.S. 822 (1973) .................. 46,54

Katzenbach v. Morgan, 384 U.S. 641 (1966) _________  67

Laffey v. Northwest A irlines,----- F .2 d ------ , 13 FEP
Cases 106S (D.C. Cir. 1976) ........................................  46

Lassiter v. Northhampton County Bd. of Elections, 360
U.S. 45 (1959) ..... ....................1..................................... 66

Lewis v. Cohen, 417 F. Supp. 1047 (E.D. Pa. 1976) ......  50

Manhart v. City of Los Angeles, 553 F.2d 581 (9th Cir.
1977), cert., granted, 46 U.S.L.W. 3214 (Oct. 3,
1977)       16,46,49

Mathews v. Lucas, 427 U.S. 495 (1976) .......................... 43
McCulloch v. Maryland, 4 Wheat. 316 (1819) ..............  67
372

PAGE



V

Nashville Gas Co. v. Satty, 46 U.S.L.W. 4026 (Dec. 6,
1977) .............................................................................. 18,53

National League of Cities v. Usery, 426 U.S. 833 (1976) 67

Peters v. Missouri Pacific R.R., 4S3 F.2d 490 (5th Cir.),
cert, denied, 414 U.S. 1002 (1973) ..............................  21

Peters v. Wayne State University and TIAA-CREF,
Civ. Act. No. 6-70165 (E.D. Mich.) .....16,19,20,30,34,37

Phillips v. Martin Marietta Corp., 400 U.S. 542 
(1971) ....... ............................................................... 14,15,18

Read v. Eeed, 404 U.S. 71 (1971) ...................................... 65
Reilly v. Robertson, 360 N.E. 2d 171 (Ind. S. C. 1977),

cert, denied, 46 U.S.L.W. 3215 (Oct. 3, 1977) .....16,17,19
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.),

cert, dimissed, 404 U.S. 1006 (1971) ...............27, 30, 34, 35
Rosen v. Public Service Electric & Gas Co., 477 F.2d

90 (3d Cir. 1973) .........................................    21
Rosen v. Public Service Electric & Gas Co., 409 F.2d

775 (3d Cir. 1969) .................   60
Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th 

Cir. 1971) .........................................................................  18

Shultz v. American Can Co.—Dixie Products, 424 F.2d
356 (8th Cir. 1970) ............................................   57

Shultz v. Wheaton Glass Co., 421 F.2d 259, (3d Cir.),
cert, denied, 39S U.S. 905 (1970) ..............................  57

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ............... 53
South Carilan v. Katzenbaeh, 383 U.S. 301 (1966) ....... 66

Usery v. Allegheny County Institution District, 544 
F.2d 148 (3d Cir. 1976), cert, denied, 430 U.S.-946 
(1977) .............   67

PAGE

373



VI

Usery v. Bettendorf Community School District, 423 
F. Supp. 637 (S.D. Iowa 1976) ________ ______ ___ 67

Ex parte Virginia, 100 U.S. 339 (1879) ........................  66

Washington v. Davis, 426 U.S. 229 (1976) .................. 51,63
Weeks v. Southern Bell Telephone & Telegraph Co.,

408 F.2d 228 (5th Cir. 1969) .....................................  18
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) --------35,50

PAGE

Federal Statutes

Age Discrimination Act of 1967, 29 U.S.C. §623(f)

Civil Rights Act of 1964, Title VII, as amended, 42
U.S.C. §2000e et seq....................................................passim
Equal Pay Act, 29 U.S.C. §206(d)........................... -45,57
Fair Labor Standards Act, 29 U.S.C. §207(e)(4) .... 52 

Administrative Regulation's and Opinions:

EEOC Decisions ............................... - .............. ............  61

29 C.F.R. §1604.2 (a) .................................................... 19
29 C.F.E. §1604.7(b) .................................................. 61,62
29 C.F.E. §1604.9(e) (f) .............................................59,60
29 C.F.R. §1604.31 (a) ....................................................  60
29 C.F.E. §800.113 ........................................................ 51
29 C.F.E. §800.116(d) ..............................44,51,52,53,54,

*55, 57, 58, 59, 61,62
29 C.F.E. §S00.151 ..............................................54,55,56,62

30 Fed. Eeg. 14927 (Dec. 2, 1965) ...........................-61,62
ss TTori ssaa lofts'! ___ 60
37 Fed. Reg. 6837 (April 5, 1972) 

374
60



vii

Other Authorities Cited:

American Academy of Actuaries, Report on Task 
Force on Risk Classification (August 1977) ..........  28

Calhoun, The Thirteenth and Fourteenth Amend­
ment S: Constitutional Authority for Federal 
Legislation against Private Discrimination, 61 
Minn. L. Rev. 313 (1977) ........................................  67

Hearings on Pension Problems of Older Women 
Before the Subcomm. on Retirement Income and 
Employment of the House Select Comm, on Aging,
94th Cong., 1st Sess. (1975) ................................... 23

H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971)....23, 24
H. Rep. No. 309, 88th Cong., 1st Sess. (1963) ..........  52

James M., The Metropolitan Life: A Study in Busi­
ness Growth (1947) ........................  24 25 33

Nader, R., and K. Blackwell, You and Your Pension

PAGE

(1973) ................... oo
Note, The Supreme Court, 1976 Term, 91 Harv. L.

Rev. 241 (1977)

109 Cong. Rec. 8914-8916 .
109 Cong. Rec. 9206-9217
HO Cong. Rec. 13647 .
110 Cong. Rec. 13663-64;
111 Cong. Rec. 13359 .
111 c ong. Rec. 18261-18263 .

Rethorford, The Changing Sex Differential in Mor-
tality (1975)

375



V ll l

Sands, Sutherland Statutory Construction (4th ed.
1973)    49

S. Rep. No. 92-415, 92d Cong., 1st Sess. (1971) ....23,66
S. Rep. No. 176, 88th Cong., 1st Sess. (1963) ........57,58

U.S. Commission on Civil Rights, Staff Report,
Women and Poverty (June, 1964) ........................... 23,58

U.S. Dep’t of Health, Education, and Welfare, Vital
Statistics of the United States, 1973 ........................  33

U.S. Dep’t of Labor, 1975 Handbook on Women 
Workers ....................................................................  99

PAGE

376



IN  TH E

6>uprm? (Emtrt of t\u United States
O ctober  T e r m , 1977 

No. 76-1810

C it y  oe L os A n g e l e s , D e p a r t m e n t  of 
W a ter  and  P ow er , et al.,

Petitioners,

M a rie  M a n h a r t , et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE

Interest o f Amici*

The American Civil Liberties Union (ACLU) is a nation­
wide, non-partisan organization of over 200,000 members 
dedicated to defending the right of all persons to equal 
treatment under the law. Recognizing that confinement of 
women’s opportunities is a pervasive problem at all levels 
of society, public and private, the ACLU has established a 
Women’s Rights Project to work toward the elimination 
°f gender-based discrimination.

Tilf ,  brief is filed with consent of the parties. The letters of 
consent have been filed with the Clerk of the Court.

377



2

The American Civil Liberties Union has participated in 
virtually every case before this Court involving interpreta­
tion of Title YII’s ban on sex discrimination. The Union 
acted as amicus curiae in Phillips v. Martin Marietta Corp., 
400 U.S. 542 (1971), concerning an employer practice of 
refusing to hire mothers of preschool-age children; in 
Wetzel v. Liberty Mutual Insurance Co., 511 F.2d 199 (34 
Cir. 1975), vacated on juris, grounds, 424 U.S. 737 (1976), 
and General Electric Co. v. Gilbert, 429 U.S. 125 (1976), 
both concerning the Title VII rights of working women dis­
abled by pregnancy; in Dothard v. Rawlinson, 97 S.Ct. 2720 
(1977), allowing a narrow exception to sex-neutral hiring 
standards for prison guards in Alabama’s brutal maximum- 
security penitentiaries; and in Nashville Gas Co. v. Satty, 
46 U.S.L.W. 4026 (Dec. 6,1977), striking down an employer 
practice of stripping female workers returning from child­
birth leaves of job-bidding seniority.

The ACLU has also participated in most of the cases 
before this Court challenging sex-based discrimination 
under the Fifth and Fourteenth Amendments. Lawyers 
associated with the ACLU presented the appeal in Reed v. 
Reed, 404 U.S. 71 (1971), participated as counsel for the 
appellants and later represented amicus curiae in Frontiero 
v. Riclmrd.son, 411 U.S. 677 (1973), represented the appel­
lant in Kahn v. Shevin, 416 U.S. 351 (1974), the appellees 
in Edwards v. Healy, 421 U.S. 772 (1975), Weinberger v. 
Wiesenfeld, 420̂  U.S. 636 (1975), and Califano v. Goldfarb, 
430 U.S. 199 (1977), petitioners in Struck v. Secretary of 
Defense, 460 F.2d 1372 (9th Cir. 1971, 1972), cert, granted, 
409 U.S. 947, judgment vacated and case remanded for con­
sideration of mootness, 409 U.S. 1071 (1972), and Turner 
v. Department of Employment Security, 423 U.S. 44 (1975),

378



3

and acted as counsel for petitioners, appellants, appellees, 
and amicus curiae in this Court in several other gender dis­
crimination and women’s rights cases.

American Civil Liberties Union attorneys represent the 
plaintiffs in Peters v. Wayne State University and TIAA- 
CREF, Civ. Act. No. 6-70165 (E.D. Mich.), a Title VII 
challenge by female academic and non-academic employees 
and retirees to the University’s provision, through TIAA- 
CREF, of lower periodic retirement benefits to women than 
to men. Trial has commenced in the Peters case, and amici 
will refer to portions of the transcript and discovery in that 
case. ACLU attorneys also represent women employed by 
Columbia University in academic and administrative posi­
tions who have filed a charge with the Equal Employment 
Opportunity Commission alleging sex discrimination in the 
provision of pension benefits by the University through 
TIAA-CREF.

The American Association of University Professors 
(AAUP) was founded in 1915 to advance the standards, 
ideals and welfare of teachers and research scholars in 
universities and colleges. It is the oldest and largest na­
tional association of its kind. The status of women in the 
academic profession has been a long-standing concern of the 
Association. Both the Annual Meeting and the Council of the 
Association have voted to support sex-neutral pension 
plans. These actions have provided the foundation for 
efforts by Association officers and members, through dis­
cussion and correspondence with officers of pension funds 
and government officials, to seek the establishment of non- 
diseriminatory pension plans for academic men and women. 
For example, in the fall of 1975, the President of the AAUP 
wrote to the Secretary of Labor and to the Chairman of

379



4

TIAA-CREF, the annuity association to which a very 
substantial proportion of all AAUP members belong, to 
protest TIAA-CREF’s use of sex-based actuarial tables to 
pay women lower retirement benefits than men as “exactly 
the kind of discriminatory conduct which Title VII forbids.” 
On Equal Monthly Retirement Benefits for Men and 
Women Faculty, 61 AAUP Bulletin 316, 317 (1975). The 
AAUP therefore is well qualified to address the Court in 
the instant case.

Petitioner employer in this case defends its former prac­
tice of paying women employees less take-home wages than 
similarly-situated men on the ground that, “on the average,” 
women live longer than men. Therefore, petitioners con­
tend, women’s pensions cost more than men’s, and women’s 
take-home pay is appropriately reduced so that each woman 
will bear her share of the “average extra” cost of women’s 
pensions. The question here presented is whether this ex­
plicit classification by sex is compatible with the central 
anticategorical thrust of Title YII of the Civil Rights Act 
of 1964: the right of individuals to equal treatment without 
regard to their membership in a particular sex, race, reli­
gious or ethnic group. The answer to this question, amici 
believe, is of vital significance to the efficacy of Title VII 
and to the achievement of full equality between the sexes.

Opinions Below

The opinions of the United States Court of Appeals for 
the Ninth Circuit are reported at 553 F.2d 581 (1976). The 
opinion of the District Court for the Central District of 
California is reported at 387 F. Supp. 980 (1975).

380



5

Statutes and Regulations Involved

Sections 703(a) and (h) of Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. §2000e-2(a) (1974) 
(hereinafter “Title V II”), in pertinent part provide:

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

(1) to fail or refuse to hire or to discharge any in­
dividual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s . . . sex . . or

(2) to limit, segregate, or classify his employees or 
applicants for employment in any way which would 
deprive or tend to deprive any individual of employ­
ment opportunities or otherwise adversely affect his 
status as an employee, because of such individual’s 
. . .  sex . . . .

* * •  # *

(h) . . . .  It shall not be an unlawful employment 
practice under this subchapter for any employer to dif­
ferentiate upon the basis of sex in determining the 
amount of the wages or compensation paid or to be 
paid to employees of such employer if such differen­
tiation is authorized by the provisions of section 206
(d) of Title 29.

Section 6(d) of the Fair Labor Standards Act of 1938, 
as amended, 29 U.S.C. §206(d) (1965) (hereinafter “Equal 
Pay Act”) in pertinent part provides:

(d)(1) No employer having employees subject to any 
provisions of this section shall discriminate, within any 
establishment in which such employees are employed, 
between employees on the basis of sex by paying wages 
to employees in such establishment at a rate less than

381



6

the rate at which he pays wages to employees of the 
opposite sex in such establishment for equal work on 
jobs the performance of which requires equal skill, 
effort, and responsibility, and which are performed un­
der similar working conditions, except where such pay­
ment is made pursuant to (i) a seniority system; (ii) a 
merit system; (iii) a system which measures earnings 
by quantity or quality of production; or (iv) a differen­
tial based on any other factor other than sex: Pro­
vided, That an employer who is paying a wage rate 
differential in violation of this subsection shall not, in 
order to comply with the provisions of this subsection, 
reduce the wage rate of any employee.

Sections 1604.9(a), (b), (e), and (f) of the Equal Employ­
ment Opportunity Commission (EEOC) Sex Discrimination 
Guidelines, 29 C.F.R. §§1604.9(a), (b), (e), and (f) in 
pertinent part provide:

(a) “Fringe benefits,” as used herein, includes medi­
cal, hospital, accident, life insurance and retirement 
benefits; profit-sharing and bonus plans; leave; and 
other terms, conditions, and privileges of employment.

(b) It shall be an unlawful employment practice for 
an employer to discriminate between men and women 
with regard to fringe benefits.

(e) It shall not be a defense under title VII to a 
charge of sex discrimination in benefits that the cost 
of such benefits is greater with respect to one sex than 
the other.

(f) I t shall be an unlawful employment practice for 
an employer to have a pension or retirement plan which 
establishes different optional or compulsory retirement 
ages based on sex, or which differentiates in benefits on 
the basis of sex.

Sections 800.116(d) and 800.151 of the Department of 
Labor Wage and Hour Administrator’s Interpretive Bul-

382



7

letin on Equal Pay for Equal Work, 29 C.F.E. §§800.116(d) 
and 151 provide:

116(d)—If employer contributions to a plan provid­
ing insurance or similar benefits to employees are equal 
for both men and women, no wage differential pro­
hibited by the equal pay provisions will result from such 
payments, even though the benefits which accrue to the 
employees in question are greater for one sex than for 
the other. The mere fact that the employer may make 
unequal contributions for employees of opposite sexes 
in such a situation will not, however, be considered to 
indicate that the employer’s payments are in violation 
of section 6(d), if the resulting benefits are equal for 
such employees.

151—A wage differential based on claimed differences 
between the average cost of employing the employer’s 
women workers as a group and the average cost of 
employing the men workers as a group does not qualify 
as a differential based on any “factor other than sex,” 
and would result in a violation of the equal pay pro­
visions, if the equal pay standard otherwise applies. 
To group employees solely on the basis of sex for pur­
poses of comparison of costs necessarily rests on the 
assumption that the sex factor alone may justify the 
wage differential—an assumption plainly contrary to 
the terms and purposes of the Equal Pay Act. Wage 
differentials so based would serve only to perpetuate 
and promote the very discrimination at which the Act 
is directed, because in any grouping by sex of the em­
ployees to which the cost data relates, the group cost 
experience is necessarily assessed against an individual 
of one sex without regard to whether it costs an em­
ployer more or less to employ such individual than a 
particular individual of the opposite sex under similar 
working conditions in jobs requiring equal skill, effort, 
and responsibility.

383



8

Question Presented

Does Title VII of the 1964 Civil Eights Act prohibit an 
employment policy of paying all female workers less than 
all similarly-situated male workers, justified by the em­
ployer on the ground that “on the average” women live 
longer than men and therefore it costs more “on the aver­
age” to provide pension benefits to women, when: (1) the 
policy classifies employees on the basis of “gender as such”; 
(2) the great majority of women do not outlive similarly- 
situated men; (3) the policy runs counter to the remedial 
purpose of Title V II; and (4) the policy is based on insur­
ance industry custom and is not essential to the business 
requirements of either the employer or insurers.

Statement o f the Case

Amici incorporate the Statement of the Case set out in 
Brief for Eespondents.

Summary o f Argument 

L

Solely on the basis of their sex, women employed by 
petitioner Water Department received less in take-home 
wages than all similarly-situated men. The Water Depart­
ment asserts women live longer “on the average” than men; 
as a result, women’s pensions costs more “on the average” 
than men’s; therefore every woman worker must be paid 
less in individual wages to cover part of the “average ex­
tra” cost of women’s pensions. This position, focusing 
insistently on the “average,” cannot be reconciled with the

384



9

individualistic, anti-categorical premises underlying Title 
VII.

The policy petitioners champion conflicts head-on with 
Section 703 (a )’s bar to classification based on “gender as 
such.” The conflict cannot be avoided by arguing male and 
female employees do not have “like qualifications.” For 
the great majority of men and women (some 84%) share 
common death ages and thus are similarly situated with 
respect to compensation entitlement. To give 84 percent of 
the Water Department’s female employees, women iden­
tically situated to 84 percent of the male employees, lower 
take-home pay is the essence of the discrimination pro­
hibited by Section 703(a). The majority of women are 
penalized because a class stereotype or average, to which 
most women do not conform, is nevertheless applied to all 
women.

The central purpose of Title YII is to afford individuals 
equal treatment. 'This purpose is thwarted when the char­
acteristics of some women are attributed to all, or when 
women “as a class” are compared to men “as a class.” The 
concept of equal treatment for individuals without regard to 
group characteristics is incorporated in the EEOC’s Guide­
lines, and has been applied by a number of federal courts 
to prohibit sex-based distinctions in retirement programs.

Finally, the policy at issue here, and the similar one of 
paying women lower retirement benefits, run counter to 
the remedial purposes of Title YII. As Congress noted, 
working women are economically disadvantaged compared 
to men; retired women are similarly disadvantaged, in 
large part because of prior wage and job discrimination.

385



10

To allow an additional, explicitly sex-based, lowering of 
either women’s take-home wages or retirement benefits 
would heap on a further disadvantage, in conflict with the 
plain meaning of Section 703(a) and the grand design of 
Title VII.

n.

Because the policy of paying women less in take-home 
wages than men is unavoidably an explicit sex-based classi­
fication in prima facie violation of Section 703(a), the 
Water Department has the burden of establishing a defense.

The Water Department and the insurance amici defend 
the discriminatory practice at issue not on the basis of the 
employer’s business requirements, but on the basis of the 
long-standing insurance industry practice of measuring 
mortality on a sex-segregated basis. This insurance custom 
creates neither a “business necessity” nor a Section 703(e) 
“bona fide occupational qualification” defense for an em­
ployer.

Without even attempting to establish any employer “busi­
ness necessity,” insurance amici press, solely for gender 
lines, the insidious argument that Title VII requires only 
“actuarial equality” when the relevant characteristic (here, 
longevity) is impossible to determine on an individual 
basis. Their arguments fall into four categories: cost; 
insurer’s reliance on group-based experience; equity and 
risk classification; and adverse selection.

As to the only employer-related defense, cost, there is 
no claim that the relatively small additional cost to the 
Department affects its ability effectively to carry out its

386



11

function of providing water and power to the City of Los 
Angeles. Moreover, in light of Title VII’s purpose of 
raising the economic status of women by eliminating dis­
crimination in jobs and compensation, it would be perverse 
to justify continued lower wages or retirement benefits for 
women on the ground that it costs more to pay them equally 
with men. Compliance with Title VII was not intended 
to be cost-free.

Nor do any of the insurance industry arguments justify 
departing from the anticategorical precepts of Title VII. 
The insurance amici stress that insurers must use groups, 
and that longevity is impossible to determine by individual 
testing. But insurers can pool the mortality experience of 
men and women, just as they pool mortality experience for 
all other groups with different average longevity rates. 
For example, insurers have discontinued reliance on group­
ing by race, reliance once considered “dictated entirely 
by actuarial findings.” In sum, the insurance industry can­
not maintain persuasively that sound pension plans de­
pend on sex classification, any more than they depend on 
race classification or classification based on a host of 
health and environmental factors insurers choose not to 
use in group insurance contexts.

Insurance amici further argue that it would be inequi­
table to men to pay women equal take-home pay and retire­
ment benefits, because this would result in men subsidizing 
women’s benefits. But group insurance would be impossible 
unless one class subsidized another. Moreover, in group 
plans, refined classification is neither necessary nor appro­
priate because the insurer is guaranteed a cross-section of 
risks. Amici have thus exaggerated the importance of 
equity in the group-plan context. In short, the business

387



12

purpose advanced, equity, is unconvincing as an excuse for 
sex classification in a group plan that uses no other classi­
fication apart from age. The related contention that elim­
ination of sex segregation requires males to subsidize 
females is no more accurate than a charge that equal pen­
sion benefits for blacks and whites means blacks subsidize 
whites. Acceptance of the argument would stand Title YII 
on its head. Women could sue if they were not accorded 
higher life insurance benefits, blaeks, if they were not 
accorded higher pension benefits.

Finally, the suggestion that if men are forced to sub­
sidize women’s risks, the “subsidizers” will leave the pool, 
occasioning the eventual collapse of insurance schemes, is 
based on layers of distortion and speculation, not on fact.

III.

Petitioners and supporting amici argue that the part of 
Section 703(h) of Title VII known as “the Bennett Amend­
ment” provides a defense to their violation of Section 703 
(a). Their argument is threefold: (1) the Bennett Amend­
ment allows use of non-sex-based factors in setting com­
pensation differentials, and paying women less take-home 
pay than men is not based on sex, but on longevity; (2) 
a Humphrey-Randolph colloquy indicates a Congressional 
intent to allow discriminatory sex-based classifications in 
retirement plans; (3) the Bennett Amendment makes an 
Equal Pay Act interpretive regulation cited in General 
Electric Co. v. Gilbert, 429 U.S. 125 (1976), i.e., 29 C.F.B. 
§800.116 (d), controlling in Title VII discrimination cases.

All three arguments lack merit. The employer policy here 
is not based on a “factor other than sex” ; it is based ex­
plicitly and solely on sex. The Humphrey-Randolph col-

388



13

loquy does not indicate a Congressional intent to allow 
gender lines which operate to the detriment of women 
workers. The interpretive regulation, by allowing sex- 
based differentials in wages, is contrary to the text of the 
Equal Pay Act and inconsistent with another Equal Pay 
Act regulation; indeed, the Labor Department itself re­
treated from the regulation by filing a brief in the Ninth 
Circuit urging that women are entitled under the Equal 
Pay Act to take-home pay equal to men’s. Finally, the 
relevant EEOC regulations clearly prohibiting the em­
ployer practice here are entitled to deference under the 
Court’s Gilbert standard.

IV.

The decision below accords with this Court’s principal 
equal protection/gender classification decisions. Sex-aver­
aging arguments strikingly similar to those pressed here 
were firmly rejected last Term in Craig v. Boren, 429 U.S. 
190(1976), and Califano v. Goldfarb, 430 U.S. 199 (1977). 
These cases indicate that gender, like race, must not be 
used as a proxy for some other characteristic, attribute, 
or condition. To the extent Title VII calls for review more 
stringent than the Constitution requires, the rulings in 
Craig and Goldfarb make this an a fortiori case.

V.

Congressional authority under Section 5 of the Four­
teenth Amendment and the Commerce Clause plainly sup­
ports application of Title VII’s ban on sex classification to 
petitioner Water Department.

389



14

ARGUMENT

I.

Providing all fem ale em ployees less take-home pay 
than all similarly-situated male em ployees because 
women “on the average” live longer than m en violates 
Title VII o f the 1 9 6 4  Civil Rights Act.

A. T he E m p lo yer  P o licy  a t Issue C lassifies E m ployees on  
th e  B asis o f “ G ender as Such” in  V io la tion  o f  Section  
70 3 ( a )  o f T itle  VII.

Solely on the basis of their sex, women employed by the 
Los Angeles Department of Water and Power received less 
in take-home wages than all similarly-situated men. The 
Water Department argues that women live longer “on the 
average” than men, that as a result women’s pensions cost 
more “on the average” than men’s pensions, and that it is 
therefore necessary to pay every woman worker less in in­
dividual wages in order to cover part of the “average ex­
tra” cost of women’s pensions. This insistent focus on 
the “average” as sole justification for exclusively sex-based 
classification cannot be reconciled with the anticategorical 
premises underlying Title VII. That statute places stringent 
restraints on sex (or race) averaging, restraints that pre­
clude the policy petitioner Water Department pursues.

The Water Department classifies all women employees in 
one group, to their economic disadvantage, and all men in 
another, to their economic advantage. This classification, 
explicitly based on “gender as such,” violates Section 703 
(a) of Title VII, 42 U.S.C. §20Q0e-2(a). Compare Dothard 
v. Rawlinson, 97 S.Ct. 2720 (1977), and P hillips  v. Martin 
Marietta Corp., 400 U.S. 542 (1971), with General Electric 
Co. v. Gilbert, 429 U.S. 125 (1976).

390



15

In Gilbert, the Court held that a disability program divid­
ing potential recipients into two groups—“pregnant women 
and nonpregnant persons”—did not classify on the basis of 
“gender as such.” Since there was a “lack of identity” be­
tween the excluded disability (pregnancy) and “gender as 
such,” the program did not . . trigger . . . the finding of 
an unlawful employment practice under §703(a)(l),” 42 
U.S.C. §2000e-2(a) (l) .1 Gilbert, supra, 429 U.S. at 
136. In contrast, in Dothard, the employer’s explicit sex 
classification, barring women from applying for a job open 
to men, triggered the Section 703(a) unlawful employment 
practice finding, a finding surmountable by the employer 
only upon establishing justification pursuant to the Section 
703(e) BFOQ defense. As explained in Phillips:

Section 703(a) of the Civil Rights Act of 1964 requires 
that persons of like qualifications be given employ­
ment opportunities irrespective of their sex. The Court 
of Appeals therefore erred in reading this section as 
permitting one hiring policy for women and another 
for men—each having preschool-age children.

Phillips, supra, 400 U.S. at 544.1 2 The Water Department 
and its supporting amici seek to escape the Section 703(a) 
requirement by arguing, in essence, that male and female

1 Unlike pregnancy, long life or short is hardly an additional 
risk unique to women, relating to “their differing role in ‘the 
scheme of human existence.’ ” General Electric Co. v. Gilbert, 
supra, 429 U.S. at 129 n.17. Rather, the issue here is appropriate 
treatment of a risk common to all human beings. See Note, 91 
Harv. L. Rev. 241, 248-50 (1977).

2 The notion pressed by petitioners (Brief at 19, 39) and amici 
TIAA-CREF (Brief at 11, 15) that a “rational basis” for sex (or 
race) classification is all a Title Y II defendant need establish is 
remarkable in light of the Court’s clear rulings to the contrary. 
No one contended in Phillips v. Martin Marietta Corp., 400 U.S. 
542 (1971), for example, that the sex classification was “irrational.”

(footnote continued on following page)

391



16

employees do not have “like qualifications” for equal take- 
home pay because “women outlive men.” Petitioners’ Brief 
at 4.

Petitioners’ argument dissembles. As the district court 
noted in Henderson v. Oregon, 405 F. Supp. 1271, 1275 n. 
5 (D. Ore. 1975), appeal docketed, No. 76-1706 (9th Cir, 
March 30, 1976):

The great majority of men and women—84 percent- 
share common death ages. That is, for every woman 
who dies at 81 there is a corresponding man who dies 
at 81. The remaining 16 percent are women who live 
longer than the majority and men who live shorter. 
As a result, each woman is penalized because a few 
women live longer and each man benefits because a 
few men die earlier.

Accord, Reilly v. Robertson, 360 N.E.2d 171 (Ind. S.C. 
1977), cert, denied, 46 U.S.L.W. 3215 (Oct. 3, 1977); Man- 
hart v. City of Los Angeles, 553 F.2d 581, 585 (9th Cir. 
1977), cert, granted, 46 U.S.L.W. 3214 (Oct. 3, 1977).3

Quite the opposite. The United States, as amicus curiae, clarified 
at oral argument:

We do not contend [a decision not to employ women who 
have children of preschool age] is irrational; we contend that 
it’s illegal.

Many things that are illegal [under Title VII] may not be 
irrational.

Transcript of Oral Argument, December 9, 1970. Accord, Dothard 
v. Rawlinson, 97 S.Ct. 2720 (1977). Only slightly less remarkable 
is the failure of petitioners and their amici to notice that even 
under the constitutional standard, considerably more than ration­
ality must be established to justify resort to gender as a classify­
ing factor. See Craig v. Boren, 429 U.S. 190, 197 (1976); Califano 
v. Goldfarb, 430 U.S. 199, 209 n.8 (1977).

3 In Peters v. Wayne State University and TIAA-CREF, Civ- 
Act. No. 6-70165 (E.D. Mich.), currently on trial, plaintiffs pre-

392



17

The “great majority of men and women,” the 84 percent 
who share common death ages, indisputably have “like 
qualifications” ; as to compensation entitlement, they are 
similarly situated. Yet the great majority of women who 
do not outlive similarly-situated men are paid less because 
a relatively small number of women will live longer and a 
relatively small number of men will die earlier. To give 
84 percent of all the Department’s female employees, 
women identically situated to 84 percent of the male em­
ployee^ lower daily and lifetime wages is the essence of 
the discrimination prohibited by Section 703(a). One fac­
tor, and one factor alone, differentiates the two groups: 
their sex. The women will work the same jobs, for the 
same number of years, and die at the same time after 
retirement as their male counterparts. Their economic 
needs will be no less than those of their male co-workers. 
Yet their take-home wages will be less, solely because they 
are women.

Thus, the majority of women are penalized because a 
class stereotype or average, one to which most women do 
not conform, is nevertheless applied to all women. “ [I]t is 
impermissible under Title VII to refuse to hire an indi­
vidual woman or man on the basis of stereotyped char­
acterizations of the sexes.” Dothard v. Bawlinson, supra, 
97 S.Ct. at 2729.* 4 It is similarly impermissible under

seated an expert, Dr. Gerald Martin, who had previously testified 
as an expert in Reilly v. Robertson, supra. He testified that he had 
examined the mortality tables used by TIAA-CREF, and had cal­
culated the percentage of men and women sharing common death 
ages under these tables. Under the first set, he found an overlap 
of 79.5%; under the second, he found an overlap of 80.1%. Trial 
Transcript at 213 (Sept. 29, 1977).

4 Stereotypes may accurately portray the average characteristics 
of women or men. For example, it is true that women on the aver­
age cannot lift as much weight as men on the average; yet courts

393



18

Title VII to pay an individual woman lower take-home 
wages than a similarly-situated man on the basis of a 
stereotype or average that inaccurately describes some 84 
percent of the affected population.

The Water Department’s insistence on comparing the 
class of women employees to the class of men employees 
misses the central thrust of Title VII: the right of indi­
viduals to equal treatment without regard to their class 
membership in a particular sex, race, religious, or ethnic 
group.5 The EEOC has consistently taken this position in 
its guidelines regarding the BFOQ defense: * 6

have invalidated employer practices based on such statistically-valid 
averages because they penalize the individual woman or man who 
does not conform to the group average. See Bosenfeld v. Southern 
Pacific Co., 444 F.2d 1219 (9th Cir. 1971); Weeks v. Southern 
Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969); 
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). In­
deed, by definition, most people will not conform to an average, 
Sex (and race) stereotypes have been assailed under Title VII, 
not because they represent invalid statistical averages, but because 
they injure individuals who do not conform to them yet are treated 
as though they do.

6 The Water Department and supporting amici contend that, in 
the insurance context, they may measure whether equality of 
treatment exists on the basis of what each sex-based group as a 
whole receives, rather than on the basis of what identically-situated 
individual men and women receive, citing Gilbert for this proposi­
tion. This argument entirely misconstrues Gilbert, as the Court’s 
subsequent decision in Nashville Gas Co. v. Satty, 46 U.S.L.W. 4026 
(Dee. 6, 1977), makes clear. In both cases, the Court was examin­
ing the possible discriminatory effect of a neutral policy, and of 
course had to resort to statistics on group impact in order to de­
termine whether the policy in fact operated to discriminate on the 
basis of sex. Here, however, the policy is explicitly based on sex. 
Hence, group impact analysis is obviously inappropriate. The 
gender-based classification triggers a finding of a Section 703(a) 
violation, casting a burden of justification on the employer. 
Dothard v. Rawlinson, supra; Phillips v. Martin Marietta Cory., 
supra. Moreover, petitioners and amici should have paid closer 
attention to the text of the Gilbert opinion where coverage of the

394



19:

The principle of non-discrimination requires that in­
dividuals be considered on the basis of individual capac­
ities and not on the basis of any characteristics gen­
erally attributed to the group.

29 C.F.R. §1604.2(a) (1) (ii).6 As a consistent position of 
the EEOC, this guideline is entitled to weight; indeed, just 
last Term, the Court so held with respect to the full text 
of Section 1604.2(a).7 Dothard v. Rawlinson, supra, 97 
S. Ct. at 2729 n.19.

Nor is the concept of equal treatment for individuals 
without regard to group characteristics a new one in the 
retirement context. A number of federal courts have held 
Title VII prohibits sex-based distinction in retirement pro­
grams. In Henderson v. Oregon, 405 F. Supp. 1271 (D. 
Ore. 1975), appeal docketed, No. 76-1706 (9th Cir. March 30,
1976), Judge Praegerson invalidated a variant of the Water 
Department’s retirement system—the payment of lower 
monthly retirement benefits to women. That ruling was 
made in the face of precisely the same “average longevity” 
argument advanced here.8 See also Reilly v. Robertson,

same breadth for analogous risks is indicated as the Title V II re­
quirement. Compare TIAA-CREF Brief at 21, with Note, 91 Harv. 
L. Rev. 241, 248-50 (1977).

'Formerly numbered 29 C.F.R. §1604.1 (a) (1) (ii), 30 Fed. Reg. 
14927 (Dee. 2, 1965).

7 Of course, the BFOQ defense is not available here. See I.B., 
infra.

8 Two conflicting post-Gilbert district court decisions have issued 
on the legality of an “unequal benefits” retirement scheme similar 
to the one in Henderson: the program provided by TIAA-CREF 
(amici here) to numerous colleges and universities. Peters v. 
Wayne State University and TIAA-CREF, Civ. Act. No. 6-70165 
(E.D. Mich. Sept. 21, 1977) ; EEOC v. Colby College and TIAA- 
CREF, 15 FEP Cases 1363 (D. Me. Nov. 17, 1977). In both cases, 
TIAA-CREF moved for summary judgment based upon this Court’s

395



20

supra (lower monthly benefits for female retirees violates 
equal protection guarantees of the Indiana and Federal 
Constitutions).

Similarly, retirement programs that pay lower monthly 
benefits to male early-retirees have been found unlawful 
under Title VII.* 9 Chastang v. Flynn <Ss Emrich Co., 541

Gilbert decision. Judge DeMaseio denied the motion in Peters. 
Two months later, in Colby College, Judge Gignoux granted the 
motion. The Colby College decision, which relies exclusively on 
Gilbert, fails to note a critical distinction this Court has under­
scored: the Gilbert classification was “not gender-based” at all; 
the retirement classification at issue in Colby divided workers on 
the basis of “gender as such.”

The Peters decision is attached hereto as an Appendix. The 
TIAA-CREF amici brief includes an addendum setting out the 
Colby decision, but fails to mention Peters.

9 This practice also drew support from the use of sex-segregated 
mortality tables, although that fact is not discussed in the deci­
sions. Retirement at age 65 is considered the “norm” and early- 
retiring employees are given the “actuarial equivalent” of normal 
retirement, based on sex-segregated mortality tables. For example, 
if an identically-situated male and female were to retire at age 
65 with a yearly retirement benefit of $5,000, the respective 
present actuarial values of their benefits, based on sex-segregated 
mortality tables predicting 18 more years of life for the average 
man, and 22 for the average woman, would be $90,000 for the man 
($5,000 X 18 =  $90,000), and $110,000 for the woman ($5,000 
X 22 =  $110,000). The actuarial equivalent for early retirement 
for each at age 62, still based on sex-segregated mortality tables, 
would then be $4,285 for the man ($90,000 -4- 21 [18 +  3] =  
$4,285), and $4,400 for the woman ($110,000 -v 25 [22 +  3] =  
$4,400).

If a merged mortality table were used for both sexes, as is cur­
rently done for such groups as blacks and whites, or smokers 
and nonsmokers, the present actuarial value of the man’s and 
woman’s retirement at age 65 would be equal (i.e., $5,000 X 20 
years =  $100,000), and similarly, the actuarial equivalent for 
early retirement at age 62 would yield equal payments ($100,000 
-r- 23 =  $4,348). (The above description is for demonstration 
purposes only and omits the role of interest in calculating present 
value.)

Many pension plans in current use in fact do not use sex- 
segregated mortality tables to establish sex-differentiated benefit 
levels. See Brief for the Society of Actuaries at 12-13, 15-16.

396



21

F.2d 1040 (4th Cir. 1976); Rosen v. Public Service Electric 
& Gas Co., 477 F.2d 90 (3d Cir. 1973); Fitzpatrick v. Bitser, 
390 F. Supp. 278 (D. Conn. 1974), appealed on other 
grounds, 427 TT.S. 445 (1976). Further, programs requiring 
women to retire earlier than men, or blacks earlier than 
whites, have not survived Title VII challenge. Peters v. 
Missouri Pacific R.R., 483 F.2d 490 (5th Cir.), cert, denied, 
414 U.S. 1002 (1973) (race); Bartmess v. Drewrys U.S.A., 
Inc., 444 F.2d 1186 (7th Cir.), cert, denied, 404 IT.S. 939 
(1971) (sex); Fillinger v. East Ohio Gas Co., 4 FEP Cases 
73 (N.D. Ohio 1971) (sex); cf. Rosen v. Public Service 
Electric ds Gas Co., 477 F.2d 90, 93, 96 n .ll (3d Cir. 1973) 
(sex).10

The Title VII holdings in these cases are based upon the 
statute’s unambiguous prohibitions. Title VII forbids 
employers

. . .  to discriminate against any individual with respect 
to his compensation, terms, conditions, or privileges of 
employment, because of such individual’s . . . sex . . . .  
[Fnnphasis added]

Section 703(a) (1), 42 U.S.C. §2000e-2(a) (l).* 11 As the Ninth 
Circuit held in this case, 553 F.2d at 593:

A greater amount is deducted from the wages of every 
woman employee than from the wages of every man

wCf. Califano v. Webster, 97 S.Ct. 1192 (1977) (indicating 
recognition by Congress and this Court of the devastating impact 
on women of early retirement policies applied more frequently to 
females than to males).

11 See also Section 703(a) (2), which further forbids an employer 
' to limit, segregate, or classify his employees . . .  in any way 
which would deprive or tend to deprive any individual of employ­
ment opportunities or otherwise adversely affect his status as an 
employee, because of such individual’s . . . sex . . . .” 42 U.S.C. 
§2000e-2(a) (2 ).

397



22

employee whose rate of pay is the same. How can it 
possibly be said that this discrimination is not based 
on sex? It is based upon a presumed characteristic of 
women as a whole, longevity, and it disregards every 
other factor that is known to affect longevity. The 
higher contribution is required specifically and only 
from women as distinguished from men. To say that 
this difference is not based on sex is to play with words.

Similarly focusing on Title Y II’s anticategorical premises, 
the Seventh Circuit ruled:

A plain reading of the statute indicates that retire­
ment plans which treat men and women differently with 
respect to their ages of retirement are prohibited . . . .  
Moreover, the classification of employees on the basis 
of sex is, of itself, contrary to the intent of Title VII.

Bartmess, supra, 444 F.2d at 1189. See also Fillinger, 
supra, 4 FEP Cases at 74.

Finally, the policy at issue here and the similar policy 
of paying women lower retirement benefits run counter to 
the remedial purposes of Title VII. As the House Com­
mittee on Education and Labor wrote in explaining the 
necessity for the 1972 amendments, which extended Title 
VII to state and local governments:

The situation of the working woman is no less serious 
[than that of minorities]. . . .

Recent statistics released from the U.S. Department 
of Labor indicate that there exists a profound economic 
discrimination against women workers. Ten years ago, 
women made 60.8% of the average salaries made by 
men in the same year; in 1968, women’s earnings still 
only represented 58.2% of the salaries made by men 
in that year. Similarly, in that same year, 60% of

398



23

women, but only 20% of men earned less than $5,000. 
At the other end of the scale, only 3% of women, hut 
28% of men had earnings of $10,000 or more.

H.R. Rep. No. 92-238, 92d Cong., 1st Sess. 4-5 (1971). 
See also S. Rep. No. 92-415, 92d Cong., 1st Sess. 7-8 (1971)12 
Retired women are similarly disadvantaged compared to 
retired men, in large part because of prior wage and job 
discrimination.13 Indeed, the status of being an elderly 
woman correlates strongly with poverty. Women and 
Poverty (Staff Report, United States Commission on Civil 
Rights, June 1964) at 9. As the Civil Rights Commission 
explained:

“Older” women (age 65 and over) receive the lowest 
median annual income of any age or sex group; this 
income of $1,899 is approximately half the amount re­
ceived by men in the same age group ($3,476).14

12 The gap between the median incomes of full-time, year 
round men and women workers had further widened by 1973, when 
women’s income fell to 57% of men’s income. U.S. Dep’t of Labor, 
1975 Handbook on Women Workers 129-30.

13 One governmental study, Women and Poverty (Staff Report, 
United States Commission on Civil Rights, June 1974) cited statis­
tics showing a median benefit under private pension plans of 
$970 per year for women, compared to $2,080 per year for men. 
Id. at 43, citing R. Nader and K. Blackwell, You and Your Pen­
sion 14 (1973). Similarly, evidence in the Peters case, note 8 
nuT?*’ indicates men 011 average receive far higher TIAA- 
uREF retirement benefits than women on the average. For ex­
ample, in 1976, men and women received the following respective 
average yearly payments from TIAA: 1) $1,553 and $1,044, for 
the single life option; 2) $2,731 and $876, for the 2/3 benefit to 
survivor option, with second annuitant living ; 3) $1,852 and $845, 
tor the full benefit to survivor option, with second annuitant 
ivmg; and 4) $2,619 and $1,318, for the 1/2 benefit to second 
annuitant option, with second annuitant living. TIAA-CREF’s 
Supplemental Answers to Plaintiffs’ Interrogatories 5-7.

14 For the plight of older women, see generally Hearings on 
ension Problems of Older Women, Before the Subeomm. on Re- 
irement Income and Employment of the House Select Comm. 

011 Aging, 94th Cong., 1st Sess. (1975).

399



24

To allow an additional, explicitly sex-based, lowering of 
either women’s take-home wages or retirement benefits 
would heap on a further disadvantage, in conflict with the 
plain meaning of Section 703(a) and the grand design of 
Title VII. As the House Committee said:

In recent years, the courts have done much to create 
a body of law clearly disapproving of sex discrimina­
tion in employment. Despite the efforts of the courts 
and the Commission, discrimination against women con­
tinues to be widespread, and is regarded by many as 
either morally or physiologically justifiable.

This Committee believes that women’s rights are not 
judicial divertissements. Discrimination against wom­
en is no less serious than other forms of prohibited 
employment practices and is to be accorded the same 
degree of social concern given to any type of unlawful 
discrimination. [Emphasis added]

H.E. Eep. No. 92-238, 92d Cong., 1st Sess. 4-5 (1971). 
Clearly, the Water Department and the insurance industry 
do think lower take-home wages and retirement benefits for 
women workers are “morally [and] physiologically justi­
fiable.” 15 But Congress has decreed that such practices 
must cease.

15 A similar belief was once in vogue with respect to race. See 
M. James, The Metropolitan L ife: A Study in Business Growth 
338-39 (1947) (higher life insurance rates for blaeks are “dic­
tated entirely by actuarial findings” and are therefore not race 
discrimination). As to “psychological justification,” recent com­
mentary (Note, 91 Harv. L. Rev. 241, 249 n.43 (1977)) observes:

Title V II was intended to end employment discrimination 
and counteract social forces that shaped the divergent hfe 
patterns of protected and nonprotected classes. I t is con­
ceivable that the statistical experience on which gender- 
specific life expectancy tables are based was shaped by the 
work patterns of a society in which women had relatively 
little access to key jobs. The viability of the prediction that

400



25

In sum, the Water Department’s policy of paying women, 
the vast majority of whom are identically-situated to their 
male co-workers, less in take-home wages, is unavoidably 
an explicit sex-based classification in prima facie violation 
of Section 703(a). Once plaintiffs have established a prima 
facie case, the burden shifts to the employer to rebut that 
case. We therefore turn to the question whether the Water 
Department has established a defense to its prima facie 
violation of the statute.

B. The Traditional Insurance Custom of Computing 
Mortality Rates on a Sex-Segregated Basis Does Not 
Constitute a Defense to an Employer Policy of 
Overtly Discriminating Against Female Employees 
by According Them Either Lower Take-Home Pay 
or Lower Retirement Benefits Than Identically- 
Situated Male Employees.

Both the Water Department and its supporting amici 
defend the discriminatory employment practice at issue not 
on the basis of the employer’s business requirements, but 
on the basis of long-standing practice in the insurance in­
dustry—measuring mortality on a sex-segregated (though 
noton a race-segregated)16 basis.17 This insurance custom

women will live longer than men in a world without employ­
ment discrimination eould itself be open to question. See 
Lewis & Lewis, The Potential Impact of Sexual Equality on 
Health, 297 New England J. Med. 863 (1977).

Compare the grudging acknowledgement of this point in Brief 
for the Society of Actuaries a t B-4.

u But see M. James, The Metropolitan Life: A Study in Busi­
ness Growth 338 (1947) (higher life insurance rates for blacks, 
once the custom, were justified as “dictated entirely by actuarial 
findings”).

7 The Department itself does not purchase its retirement pro­
gram through an outside insurance company, but has instead set

401



2 6

creates neither a business necessity nor a BFOQ defense 
for an employer.* 18

The BFOQ defense specified in Section 703(e), 42 U.S.C. 
§2000e-2(e), by its very terms is not available as justifica­
tion for a discriminatory compensation practice. Section 
703(e) provides a narrow exception to Title VII liability for 
certain discriminatory hiring and employing practices. 
See Dothard v. Rawlinson, supra. I t  does not reach the 
range of other practices encompassed by Section 703(a)— 
sex-based discharge, compensation differentials, and dis­
tinctions in terms, conditions or privileges of employment.19

The business necessity defense, while generally available 
in cases challenging a neutral policy with a discriminatory 
impact, was not developed as a justification for explicit race 
or gender lines. See this Court’s discussions of “business 
necessity” as a defense to the neutral height and weight 
rule, and BFOQ as a defense to the facial bar to women’s 
employment in Dothard v. Rawlinson, supra, 97 S. Ct. at 
2728 n.14, 2729. Although these defenses are different, a 
common thread unites them. To prevail once a prima facie

up its own pension plan, operated by a Board of Administration, 
pursuant to the City Charter’s mandate. Charter of the City of 
Los Angeles §220.1. The Department nevertheless bases its argu­
ments upon the insurance industry’s traditional use of sex-segre­
gated mortality tables.

18 The Department does not formally assert either a business 
necessity or a Section 703(e) BFOQ defense, but since the con­
cerns of petitioners and their supporting amici should be tested 
by the developed law on these defenses, we address both issues 
here.

19 Section 703(a) also prohibits any limitation, segregation, or 
classification which deprives any individual of employment oppor­
tunities or adversely affects his or her status as an employee be­
cause of such individual’s sex.

402



27

violation of Title YII has been shown, the employer must 
establish that the challenged policy is job-related and 
essential to the safe and efficient operation of the employer’s 
business. As this Court reiterated in Dothard, supra, 97 S. 
Ct. at 2728 n. 14:

[F]or both private and public employers, “The touch­
stone is business necessity,” Griggs, 401 U.S. at 431; a 
discriminatory practice must be shown to be necessary 
to safe and efficient job performance to survive a Title 
YII challenge. [Emphasis added]

The Dothard opinion quoted approvingly from a Fifth Cir­
cuit BFOQ formulation:

[Discrimination based on sex is valid only when the 
essence of the business operation would be undermined 
by not hiring members of one sex exclusively. [Em­
phasis in original]

Dias v. Pan American World Airways, 442 F.2d 385, 388 
(5th Cir.), cert, denied, 404 U.S. 950 (1971). The Fourth 
Circuit further elaborated as to the business necessity 
test:

[T]he business purpose must be sufficiently compelling 
to override any racial impact; the challenged practice 
must effectively carry out the business purpose it is 
alleged to serve; and there must be available no accept­
able alternative policies or practices which would bet­
ter accomplish the business purpose advanced, or ac­
complish it equally well with lesser differential racial 
impact.

Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th Cir.), 
cert, dismissed, 404 U.S. 1006 (1971).

403



28

The justifications for the gender line at issue advanced 
by the Water Department and supporting amici fail com­
pletely to meet these standards. Reluctant to alter accus­
tomed ways, amici press an insidious argument. “Actuarial 
equality,” 20 they urge, is all that Title VII requires when 
the relevant characteristic (here, longevity) is impossible 
to determine on an individual basis. If this is a “neutral” 
argument, i.e., not reserved for sex classifications, then of 
course it would apply as well to a plan providing minority 
group members “with less daily sick pay because of a statis­
tically higher rate of illness among members of that minor­
ity.” Note, 91 Harv. L. Rev. 241, 250 (1977). But at this 
point, amici actuaries retreat. “ [Cjertain classifications,” 
they assert, although

perfectly feasible from an actuarial standpoint may be 
barred for other reasons of social policy. For example, 
black persons exhibits shorter longevity than white per­
sons, but they are not charged a lower amount when 
they purchase annuities or a higher amount when they 
purchase life insurance.

Brief for the Society of Actuaries at l l . 21 ,In short, the 
purportedly neutral principle is pressed solely for gender

20 The concept “actuarial equality” begs the question. Whether 
or not two unequal pensions are considered actuarially equal 
(or two equal pensions are considered actuarially unequal, see 
Petitioners’ Brief at 5), depends on whether or not sex-segregated 
(or race-segregated, or smoker-segregated) mortality tables are 
used. If segregated tables are used, unequal periodic benefits will 
be actuarially equal; if merged tables are used (as for blacks and 
whites, or smokers and nonsmokers), unequal periodic benefits 
will be actuarially unequal. See note 9 supra.

21A Report by a Task Force on Risk Classification of the 
American Academy of Actuaries states: “Race is not now deter­
mined as a composition factor of the group because of its social 
unacceptability Report on Academy Task Force on Risk
Classification 15 (August, 1977).

404



29

lines.22 But the “social policy” in point, embodied in Title 
VII, requires that “analogous risks he spread among the 
entire work force,” without regard to the race, national 
origin or sex of employees. Note, supra, 91 Harv. L. Rev. 
at 248-50 (pointing out that Gilbert provides no shield for 
the sex segregation petitioners and amici champion).

The employer and insurance industry pleas to substitute 
“actuarial equality” for Title VII’s anticategorical premises 
fall into four general categories: cost; insurers’ reliance 
on group-based experience; equity and risk classification; 
and adverse selection.

1. T he E m ployer D efen se: Cost.

Petitioners and amici assert employer costs will rise if 
women are accorded both equal take-home pay and equal 
retirement benefits. Compliance with Title VII, however, 
was not intended to be cost-free.

Notably, the Water Department has been providing equal 
take-home pay since January 1, 1975, pursuant to a new 
state law. Cal. Gov. Code §7500 (West, 1977). The Depart­
ment does not argue that the small additional cost compli­
ance with the law entails affects its ability to provide water 
and power, safely and efficiently, to the City of Los Angeles. 
Current experience thus demonstrates that the Depart­
ment’s policy of lower take-home pay for women was in no 
way “necessary to safe and efficient” operations. Dothard,

22 Nor is this the only point on which the actuaries’ “neutrality” 
is open to question. While their brief (at 30) counsels against 
disturbing long-standing custom, it is clear even from their slanted 
presentation that retirement plans giving equal benefits to men 
and women are widely used, evidently without untoward effect, 
oee Brief for the Society of Actuaries at 12-13, 15-16.

405



30

supra. Nor did that policy touch the “essence of the [De­
partment’s] business.” Diaz, supra.

It is true, of course, that effective implementation of 
equal employment guarantees will frequently result in added 
costs to the employer. See, e.g., Corning Glass Works y. 
Brennan, 417 TJ.S. 188 (1974) (requiring employer to raise 
day shift women’s wages to the level paid to men hired to 
work the night sh ift); Albemarle Paper Co. v. Moody, 422 
U.S. 405, 421 (1975) (requiring full back pay to achieve 
“the central statutory purposes of eradicating discrimina­
tion throughout the economy and making persons whole for 
injuries suffered through past discrimination”) ; Robinson 
v. Lorillard Corp., supra, 444 F.2d at 799 n.8, 800 (holding 
“dollar cost alone,” or “avoidance of the expense of chang­
ing employment practices is not a business purpose that 
will validate . . .  an otherwise unlawful employment prac­
tice”) .

The Department’s current provision of equal take-home 
pay to women effectively answers the insurance industry 
amici prophecies of unbearable expense unless the Court 
sanctions a departure from Title V II’s central command. 
The asserted billions (Brief of American Council of 
Life Insurance at 3, 43, 47) are not based on evi­
dence in any case. Significantly, no insurance industry 
brief points to a prohibitive cost for the Water Department 
itself. Moreover, the evidence in another pension-plan case 
currently on trial, Peters v. Wayne State University and 
TIAA-CREF, Civ. Act. No. 6-70165 (E.D. Mich.),23 indicates 
that the actual costs of dropping the gender line are minus-

23 The District Court denied defendants TIAA-CREF’s motion 
for summary judgment on September 21, 1977. See note 8 supra.

406



31

eule for a particular employer—less than % of 1% of the 
employer’s gross payroll budget.2*

Finally, it is the purpose of Title VII to raise the economic 
status of women and minorities by eliminating pervasive 
employment discrimination in both jobs and compensation. 
In light of this purpose, it would be perverse to justify con­
tinued lower wages or retirement benefits for women on 
the ground that it costs more to pay them equally with 
men. Thus, the sole business purpose advanced on behalf 
of employers—avoidance of added costs—surely does not 
establish a business necessity defense in this case.

2. Insurance Industry O bjections.

The remaining arguments advanced—insurers’ reliance 
on group-based experience, equity and risk classification, 
and adverse selection—are not employer business purposes. 
Rather, they concern the operations of insurers with 
whom employers contract to provide fringe benefits to 
their employees. Cost apart,25 they do not impact on the

24In discovery, defendants TIAA-CREF stated:
The University was advised on September 10, 1975 that it 

would cost an estimated $188,000 additionally per year in 
order to pay women the same monthly benefits as now received 
by the men based upon the contributions by and on behalf 
of the women in the retirement program at Wayne State for 
the year 1974-75.

TIAA-CREF’s Answer to Plaintiffs’ Interrogatory 33. Defendant 
Wayne State University stated that its gross payroll budget for 
1974-1975 wras $84,306,283.08. Wayne State University’s Answer 
to Plaintiffs’ Interrogatory 2. $84,306,000 e- 188,000 =  .0022, 
or .2%.

25 Added cost to the employer is only short-term—the cost re­
quired to raise benefits of women to the level of vested benefits 

employees will be entitled to receive. In the long run, com­
pliance with Title VII will be achieved by pooling the mortality

407



32

employer’s business. Therefore they do not qualify as em­
ployer defenses. In addition, there is no record in this case, 
which was decided by summary judgment, as to whether 
any of the insurance industry concerns are even factually 
based. Nevertheless, since they play such a prominent role 
in the insurance industry briefs, they will be addressed 
here.

a. Insurers’ Reliance on Group-Based Experience

The insurance industry’s prime argument is that insurers 
must use groups, and in particular, sex-based groups. The 
central purpose of Title VII, all concede, is equal treat­
ment for individuals. But amici stress that longevity is 
impossible to determine by individual testing and that in­
surers must use the statistical experience of large groups to 
determine rates and benefit structures. This is true, hut 
irrelevant to the issue before the Court.

Respondents, of course, do not seek individual predictions 
of longevity. Rather, they claim that individual men and 
women working the same job, for the same number of years, 
and retiring at the same date, are entitled to receive equal 
take-home wages and pension benefits. Respondents con­
tend that insurers can accommodate by pooling the mortal­
ity experience of men and women, just as mortality ex­
perience is pooled for all other groups with different aver­
age longevity rates. Such groups include, for example,

experience of men and women just as the mortality experience 
of blacks and whites, smokers and nonsmokers, those with high 
blood pressure and those with normal pressure, obese and thin, 
are currently pooled. This pooling would raise the benefit level 
for women and lower it somewhat for men, as is currently the case 
for all other groups with different mortality rates.

408



33

black28 and whites, smokers and nonsmokers,26 27 persons 
with high blood pressure and those with normal blood 
pressure, the obese and the thin, persons with a family 
history of short longevity and those with long-lived fami­
lies. Pooling would enable insurance companies to charge 
the same premiums and pay the same benefits to men and 
women, just as they do now for blacks and whites, or 
smokers and nonsmokers.

Significantly, such accommodation is not new to the in­
dustry. Insurers have discontinued reliance on grouping 
by race, once considered “dictated entirely by actuarial 
findings.” M. James, The Metropolitan Life: A Study in

26 In 1973, whites in the United States had an estimated average 
length of life of 72.2 years, non-whites, 65.9 years. U.S. Dep’t 
of Health, Education, and Welfare, Vital Statistics of the United 
States, 1973, Volume II-Section 5, Life Tables, Table 5-5.

27 A recent study, conducted at the University of California 
at Berkeley, of the reasons for the gap between the average mor­
tality experience of men and women found that men’s higher smok­
ing rate accounted for about half the gap. Rethorford, The Chang­
ing Sex Differential in Mortality 104 (1975) :

A detailed analysis of the impact of tobacco smoking trends 
on the SMD [sex mortality differential] is possible only for 
the United States based on American Cancer Society data 
specific for sex, age, smoking status, and ICD [International 
Classification of Diseases] cause of death. Analysis shows that 
smoking accounted for 47 percent of the female-male differ­
ence in 60e3T (life expectancy between 37 and 87, the age 
range of the ACS data) in 1962, and about 75 percent of the 
increase in the female-male difference in 50e37 between 1910 
and 1962.

Another recent study of the effect of cigarette smoking on lon­
gevity concluded that not only do nonsmokers generally live 
longer than smokers (by a difference of more than ten years), 
but that women who smoke cigarettes on the average live six years 
less than men who smoke cigarettes. Northeastern Pennsylvania 
study on Smoking and Health, Journal of Breathing (Illinois 
bung Association), June 1975.

409



34

Business Growth 338-39 (1947).28 In time, the same acknowl­
edgement may be expected with respect to sex classifica­
tion.

Plainly, the insurance industry’s insistence on the need 
to segregate by sex29 fails the Robinson test, quoted supra 
at p. 27. There is an available “acceptable alternative policy 
. . . which would accomplish [the business purpose ad­
vanced] equally well with a lesser differential . . . impact

_28 Inexplicably, amiei TIAA-CREF appear to claim they are 
“hot aware” of this history. Brief at 6.

29 Discovery and evidence in Peters v. Wayne State University 
and TIAA-CREF, Civ. Act. No. 6-70165, now on trial in the East­
ern District of Michigan, suggest that pooling of men’s and 
women’s experience to set rates and benefits is far easier than is 
suggested by the insurance industry amici briefs. For example, 
plaintiffs in Peters presented evidence showing that Wayne State’s 
group life insurance plan, procured through Massachusetts Mutual 
Life Insurance Company, charged Wayne State a flat rate of 
61 cents per thousand dollars of coverage per month per employee, 
and paid benefits without distinction based on sex. Trial Tran­
script at 683-84 (Oct. 7, 1977). This flat rate covered both 
the basic $5,000 of coverage given all employees on a noncon­
tributory basis, and the supplemental insurance of one or two 
times an employee’s annual salary, provided on a contributory 
basis. The employees’ contribution for the supplemental insurance 
varied depending on age, but not on sex. Id. at 678-682. Thus, 
in life insurance, women and the employer are charged equal rates 
and women receive equal benefits; of course, in this instance, 
pooling works in men’s favor, since life insurance rates would be 
lower for women, or benefits would be higher, if sex-segregated 
mortality tables were used.

In addition, TIAA-CREF acknowledged that it is technically 
possible to establish a retirement program which does not differ­
entiate in either contributions or periodic benefits on the basis 
of sex. TIAA-CREF Answer to Plaintiffs’ Interrogatory 48. 
Finally, Mr. A rthur Anderson, an actuarial witness called by 
plaintiff's, testified that it would be possible for TIAA-CREF to 
continue to provide a defined contribution plan without differ­
entiating in benefits on the basis of sex, and that doing so would 
not affect their solvency; “ . . . it would mean they’d have to set 
different premium rates, but they could be uniform for both 
sexes.” Trial Transcript at 70 (Sept. 28, 1977).

4 1 0



35

[on women].” Robinson, supra, 444 F.2d at 798. That 
policy: pooling the experience of men and women, as is done 
for other groups with different average longevity. Nor is 
the alternative untried. Many plans now in existence pro­
vide contribution rates and benefits based on such pooling. 
See, e.g., the sex-neutral rate and benefit schedule of the 
Metropolitan Mutual Life Insurance Company discussed in 
note 29 supra, and the actuaries’ acknowledgement that 
options under defined-benefit plans which are commonly 
sex-differentiated can be and have been made sex-neutral. 
Actuaries Brief at 15-16. Under these plans, the same 
contribution is made for a man and a woman, and sex does 
not determine the benefits due an employee.30 Moreover, 
it should be stressed that respondents do not in fact chal­
lenge the insurance industry’s need to use groups, but seek 
rather to extend group concepts. Abandoning the particular 
classification at issue does not require switching to “individ­
ualized” predictions of longevity; it simply expands the 
group insurers use.

In sum, the insurance industry cannot maintain persua­
sively that sound pension plans depend on sex classifica­
tion, any more than they depend on race classification or 
classification based on a host of health and environmental 
factors insurers choose not to use in group insurance con­
texts.

. [Unisex,” far from offending any constitutional principle as 
amici TIAA-CREF would have it (Brief at 24-25), is precisely 
™at the judgments in Weinberger v. Wiesenfeld, 420 U.S. 636 
(1975), and CaUfamo v. Goldfarb, 430 U.S. 199 (1977), yielded, 
loathly benefits to widower Leon Goldfarb were not a penny 

^ an ^ ose a widow received. In fact, what Wiesenfeld and 
omfarb prohibited, amici urge here: use of gender as a proxy 
°r another trait or characteristic.

411



36

b. Equity and Risk Classification

Equity is a central insurance concept, and sex classifica­
tion is necessary to achieve it, insurers assert. Equity is 
defined as determining the proper risk classification for 
persons, and either charging them premiums or paying 
them benefits on the basis of their classification. Further, 
petitioners and supporting amici claim it would be inequi­
table specifically to men to pay women equal take-home pay 
and equal retirement benefits. Since “women outlive men,” 
petitioners and their amici maintain equality would in fact 
result in men subsidizing women’s benefits. The flaw in this 
argument is apparent: group insurance would be impos­
sible unless one class subsidized another.

In contrast to individual insurance, where equity con­
siderations are of prime importance, group insurance plans 
do not essay particularized risk classification for partici­
pants. Rather, they pool risks broadly. With respect to 
individual policies, insurers must assess closely a policy 
applicant’s chance of living or dying in order to avoid indi­
viduals self-selecting a particular product with adverse con­
sequences to the insurer. For example, if persons with ex­
tremely good health (long-lived persons, on the average) 
were the only ones to buy individual annuities with pre­
miums and benefits based on average health characteristics 
of the population as a whole (average-lived persons), the 
insurer would suffer loss in the long term. To protect 
against this eventuality, the insurer carefully evaluates 
each individual’s health and occupation, taking into account 
a large number of risk-indicating factors, so as to make as 
accurate a risk classification as is feasible.

4 1 2



37

But in group plans, such individualized treatment is 
neither necessary nor appropriate. Participants do not 
have the right to select the product. Therefore, a range of 
risks is guaranteed to the insurer. As actuary Arthur 
Anderson testified in the Peters case, note 8 supra:

In a group situation . . . you look at the group as a 
whole and the product is characterized by the fact that 
you get to cover all of the group. You do not have the 
right of refusing anyone of the group, typically, and 
you generally get them all so that they can’t pick and 
choose you and the risks can’t select you and the prod­
uct is uniform and generally has a standard premium 
rate of some sort. And the idea of doing that is that 
you avoid the expense of individually examining each 
person to determine his own prospects for life or death 
in return for getting a decent cross-section of every­
one, and in that cross-section, if you can make sure 
you get them all, you can be sure of getting some good 
risks and some bad risks and some so-so risks all to­
gether and getting a nice distribution and avoid any 
selection by people who are buying the insurance.

The idea, if I may go further, the idea, too, in a 
group insurance is for all these people in the group, 
within the group to pool the risk as a group, whereas 
in individual insurance . . . the idea is to pool the risk 
within your own little class.

Trial Transcript at 58-59 (Sept. 28, 1977). Thus, most 
group plans do not use a range of classifying factors— 
such as smoking versus nonsmoking, fat versus thin, high 
Wood pressure versus normal blood pressure—to place each 
person in his or her “own little class.” Instead, group plans 
routinely use only age,31 and, less pervasively, sex.32

31 Age as a classification, of course, is not under attack in this
lawsuit, although the amici briefs supporting petitioners some­
times treat age and sex classifications as though they were inex-

413



38

Thus, the importance of equity in the group plan context 
has been exaggerated by amici supporting petitioners. 
Employees generally have the right to join only the par­
ticular plan the employer offers, and frequently are re­
quired to join the plan as a condition of employment. Even 
where participation is theoretically voluntary, forgoing 
participation normally means forfeiting a very substantial 
employer contribution, contrary to the employee’s economic 
self-interest.33 In short, the business purpose advanced here 
by the insurance industry—equity—is unconvincing as an 
excuse for sex classification in a group plan that uses no 
other classification apart from age.

tricably linked. By contrast, Congress specifically treated the 
two classifications differently: Congress expressly exempted re­
tirement plans from the reach of the Age Discrimination Act 
(29 U.S.C. §623(f) (2 )); it adopted no such exemption to Title 

Y l i .
Moreover, there is a critical difference between age and sex as 

a basis for classification. One’s age inevitably changes; one’s sex, 
like one’s race, does not. This points up a fatal flaw in the age 
overlap theory TIAA-CREF submit to rebut the sex overlap 
of 84%. If a woman aged 60 is identically situated (i.e., same 
job, salary, number of years worked, and amount in her retire­
ment account) to a woman aged 65, except for her age, she merely 
need wait until 65 to retire in order to get the same benefit as 
the currently 65 year old woman. (If, on the other hand, she is 
not identically situated with the 65 year old (i.e., she has worked 
5 fewer years and has 5 fewer years of employer contributions 
in her retirement account), it is not discrimination to pay her 
lower benefits upon retirement at age 60 than to the woman 
retiring at age 65.)

In contrast, a woman who is identically situated to a man can 
never become a man and collect the same take-home wages or 
benefits that he receives.

32 Many do not use sex. See text at note 30 supra.
33 In Wayne State’s TIAA-CREF pension plan, for example, 

the University contributes 10% of the employee’s salary, but the 
employee has no right to that 10% of salary if he or she waives 
participation.

414



39

The related argument that equal take-home pay and equal 
benefits would unfairly penalize men by forcing them to 
subsidize women is similarly inapposite. For the conten­
tion that elimination of sex segregation requires males to 
subsidize females is no more accurate than a charge that 
failure to segregate by race means blacks subsidize whites. 
In fact, the short-lived (a class which includes many 
women) subsidize the long-lived (a class which includes 
many men). Subsidizing of that kind is the key feature of 
group insurance. Moreover, as demonstrated in I. A. supra, 
the correlation between sex and length of life is, at best, 
highly imprecise.

Ironically, if the “equity” argument prevailed, it would 
follow logically that blacks—with their shorter average 
longevity—would have a Title YII claim against any em­
ployer giving them equal retirement benefits, a claim 
grounded on the theory that they are subsidizing whites.34 
The relief sought would be to award blacks higher retire­
ment benefits than whites. Whites would have a claim 
where life insurance benefits are no higher for them than 
for blacks, women, a similar claim when life insurance 
proceeds are the same for males and females. Surely claims 
so founded would stand on its head Title VII’s anti-cate­
gorical approach.

e. Adverse Selection

Spinning out the group-based experience and equity ob­
jections, TIAA-CREF suggest that if individuals (pre-

34 Any ethnic group that could establish a shorter average 
longevity experience than other ethnic groups would have a similar 
claim.̂  Cf. Craig v. Boren, 429 U.S. 190, 208 n. 22 (1976) (citing 
statistics on different drinking rates for different ethnic groups).

415



40

sumably, men) are forced to subsidize other individuals’ 
risks (presumably, women’s) the “subsidizers” will leave 
the pool, thus occasioning the eventual collapse of insur­
ance schemes. TIAA-CREF Brief at 6 and 26-27. The 
American Council of Life Insurance predicts unstable rates 
and a reduction in insurance coverage for all employees, 
Brief at 3-4, 46-47, as well as the demise of insurance asso­
ciations, Brief at 46 n. 101, if men leave the insurance 
pool. See also Brief for the Society of Actuaries at 10 n. 6. 
The adverse selection argument sutlers from the same 
defect as the equity claims. It assumes a condition that in 
fact does not exist. The practical reality is that individuals, 
whether employed by the Water Department or by a college 
or university, do not have the right to select their group. 
Moreover, refusal to join the group covered by the em­
ployer’s plan is not in the employee’s economic self-interest. 
See note 33 supra. There is thus no genuine risk that men 
will walk out, en masse, of group retirement plans that offer 
equal take-home pay and retirement benefits to women em­
ployees. Just as blacks, smokers, and the obese have not 
walked away from group plans providing equal benefits for 
whites, nonsmokers, and the thin, it is fanciful to suppose 
men will desert plans according equal benefits for women.

In contrast to insurance industry amici’s forecasts of 
massive resistance by male employees, the position of the 
American Association of University Professors (AAUP), 
amicus on this brief, is particularly enlightening. AAUP 
represents many of the university professors who are a 
major consumer group for the TIAA-CREF plan. AAUP, 
with its majority male membership, has specifically en­
dorsed equal benefits for men and women under that plan,

416



41

and has foreefully urged this position in several elaborative 
statements. See, e.g., On Equal Monthly Retirement Bene­
fits for Men and Women Faculty, AAUP Bulletin 316 
(Winter 1975); Interim Report on Equal Periodic Pension 
Benefits for Men and Women, AAUP Bulletin 339 (Autumn 
1976); D. Halperin, Should Pension Benefits Depend Upon 
the Sex of the Reeipent?, AAUP Bulletin 43 (Spring 1976),

Finally, predictions that employers with largely male 
work forces will leave insurance plans to become self-insur­
ers, thus occasioning unstable rates, rest on apparent as­
sumptions that employers will violate Title VII by hiring 
only or mostly men,35 and on remote and impure specula­
tion. Employers select insurers for a variety of reasons 
other than pricing factors attributable solely to the sex 
composition of the covered group. They are interested in, 
inter alia, the soundness of the insurer’s financial invest­
ments, the funding required of the employer, and any par­
ticularly desirable feature for the employer’s industry (e.g., 
the portability of the TIAA-CREF plan, from one univer­
sity to another, which facilitates mobility among faculty 
members). In sum, the specter of disaster—the prophecy 
of rampant adverse selection if women are not paid lower 
take-home wages or retirement benefits than identically- 
situated men—has scant basis in fact. Rather, the adverse 
selection argument layers distortion and speculation.

A further point should be made as to the character of 
insurers’ and employers’ reliance on the fact of greater 
average female longevity. That reliance is indeed a some-

35 Of course, even employers of all-male work forces must pay 
wr the longevity of those men’s spouses, if they offer joint-life 
options. See note 38 infra.

417



42

times thing. Employers, including the Water Department,86 
have sometimes forced women to retire earlier than men. 
But if “women live longer than men” is the guiding light, 
then of course men, not women, should have been singled 
out for forced early retirement. Under joint-life benefit 
options, female spouses of male employees sometimes re­
ceive higher benefits than identically-situated male spouses 
of female employees.37 If employers, as the Water Depart­
ment here,38 pay the entire cost of the retirement benefit

36 Affidavit of Alice Muller in Support of Plaintiffs’ Motion 
for Preliminary Injunction (filed Sept. 6, 1974). See also 
Bartmess v. Drewrys TJ.S.A., Inc., 444 F.2d 1186 (7th Cir.), cert, 
denied, 404 U.S. 939 (1971) ; Califano v. Webster, 97 S.Ct. 1192 
(1971).

37 Plaintiffs posed interrogatories to TIAA-CREF in the Peters 
case, note 8 supra, on three hypothetical sets of identical but 
opposite-sex couples: 1) one where the employee was 65 and the 
spouse 62; 2) one where the employee was 65 and the spouse 65; 
and 3) one where the employee was 65 and the spouse 67. Plain­
tiffs asked, as to each set of couples, whether there would be any 
sex-based differential, under any of TIAA-CREF’s joint options, 
in the amount received by either the employee, or the em­
ployee’s spouse (after the death of the employee). The reply 
was yes in almost all instances. Under an option giving a half­
benefit to the second annuitant, the male employee received more 
than the female employee in all three sets of compared couples; 
similarly, the male employee’s spouse received more than the female 
employee’s spouse in all three sets of compared couples. Under 
the two-thirds and full benefit to survivor options, the male em­
ployee and his spouse each received: 1) less than his/her counter­
part in the opposite-sex couple, where the spouse was 62; 2) the 
same as the counterpart, where the spouse was 65; and 3) more 
than the counterpart, where the spouse was 67. TIAA-CREF s 
Answers to Plaintiffs’ Interrogatory 3.

38 The Department stated that there were 727 female spouses 
receiving benefits, as of August 15, 1974, as survivors of 
male employees who died after retiring from the Department; m 
contrast, only 13 male spouses were receiving such benefits on 
the same date. Department’s Answers to Plaintiffs’ Interroga­
tories 9a and 11a.

418



43

for spouses, they pay more for female dependents of men 
than for male dependents of women, based on the same 
fact of greater average female longevity. And finally, when 
employers pay men less for early retirement than identical­
ly-situated female employees, and derive support for that 
practice from the insurance industry’s sex-segregated mor­
tality tables, see note 9 supra, the picture becomes all the 
more curious.

In conclusion, none of the business purposes advanced in 
this case qualify as defenses under established Title VII 
law. The Water Department’s own current provision of 
equal take-home pay and equal retirement benefits indicates 
the speciousness of the alleged “cost” defense—the only 
defense relating to the employer’s business. The remaining 
insurance concerns—grouping, equity, and adverse selec­
tion—on inspection, are revealed as either not under attack, 
not relevant to group insurance plans, or not based on fact. 
They should be decisively rejected for what they are: at­
tempts to justify explicit sex discrimination by resort to 
custom—the long-standing tradition of sex-segregated mor­
tality tables in the insurance industry. It may well be that 
“habit, rather than analysis,” makes the sex line seem “ac­
ceptable and natural,” where a line based on race, religion 
or national origin would be recognized as offensive and 
intolerable. See Mathews v. Lucas, 427 U.S. 495, 520-21 
(1976) (Stevens, J. dissenting) (“Habit, rather than anal­
ysis, makes it seem acceptable and natural to distinguish 
between male and female . . .; for too much of our history 
there was the same inertia in distinguishing between black 
and white.”) ; Califano v. Goldfarb, 430 U.S. 199, 222 (1977) 
(Stevens, J. concurring).

419



44

C. T h e B en n ett A m en d m en t P ro v id es No D efense to an 
E m p lo yer  P o licy  o f P aying  W om en  L ow er Take-H om e  
W ages o r  R e tirem en t B en efits T han M en.

Petitioners and supporting amici argue that the part of 
Section 703(h) of Title V II known as “the Bennett Amend­
ment” provides a defense to the Water Department’s viola­
tion of Section 703(a). Their argument is threefold. First, 
they assert that the Bennett Amendment allows use of non­
sex-based factors in setting compensation differentials, and 
that the Water Department’s policy of paying women less 
take-home pay than men is not based on sex, but on lon­
gevity. Second, they argue that a Humphrey-Bandolph col­
loquy indicates a Congressional intent to allow discrimina­
tory sex-based classifications in retirement plans. Third, 
they argue that the Bennett Amendment makes an Equal 
Pay Act interpretive regulation cited in Gilbert, 29 C.F.R. 
§800.116(d), controlling in Title V II discrimination cases.

All three arguments lack merit. The employer policy 
here is not based on a “factor other than sex” ; it is based 
explicitly and solely on sex. The Humphrey-Bandolph col­
loquy does not indicate a Congressional intent to allow 
gender lines which operate to the detriment of women 
workers. The interpretive regulation, by allowing sex-based 
differentials in wages, is contrary to the text of the Equal 
Pay Act and inconsistent with another Equal Pay Act reg­
ulation; indeed, the Labor Department itself retreated 
from the regulation by filing a brief in the Ninth Circuit 
urging that women were entitled, under the Equal Pay Act, 
to take-home pay equal to men’s. Finally, the relevant 
EEOC regulations clearly prohibiting the employer prac­
tice at issue are entitled to deference under the Court’s 
Gilbert standard.

420



45

1. Section 7 0 3 ( h )  D oes Not Provide an E xem ption  
for the Overtly Sex-Based W age P olicy at Issue.

By its express terms and plain meaning, the Bennett 
Amendment merely incorporates into Title VII the excep­
tions stated in the Equal Pay Act. The relevant provision 
of Section 703(h) reads:

It shall not be an unlawful employment practice under 
this subchapter for any employer to differentiate upon 
the basis of sex in determining the amount of the wages 
or compensation paid or to be paid to employees of such 
employer if such differentiation is authorized by the 
provisions of Section 206(d) of Title 29 [the Equal 
Pay Act]. [Emphasis added]

The controlling question, therefore, is what wage dif­
ferentiation is authorized by the Equal Pay Act. That Act 
provides:

No employer having employees subject to any pro­
visions of this section shall discriminate, within any 
establishment in which such employees are employed, 
between employees on the basis of sex by paying wages 
to employees in such establishment at a rate less than 
the rate at which he pays wages to employees of the 
opposite sex in such establishment for equal work on 
jobs the performance of which requires equal skill, 
effort, and responsibility, and which are performed 
under similar working conditions, except where such 
payment is made pursuant to (i) a seniority system; 
(ii) a merit system; (iii) a system which measures 
earnings by quantity or quality of production; or (iv) 
a differential based on any other factor other than 
sex . . .  . [Emphasis added]

29 U.S.C. §206(d) (1).
This language prohibits wage discrimination for equal 

work up to the point where the “except” clause begins.

421



46

The wording following the “except” clause, on the other 
hand, expressly authorises unequal pay for equal work, to 
the extent that the differential payment is made pursuant 
to the enumerated systems or factors. Thus, the Bennett 
Amendment incorporates into Title VII the explicit Equal 
Pay Act exceptions, i.e., pay differentials based on seniority, 
merit, piecework systems, and other non-sex-related fac­
tors.39 An employer policy explicitly based on sex, by 
definition, cannot be one based on a “factor other than 
sex.” 40

39 The meager legislative history is in accord. Senator Dirksen 
explained.:

We were aware of the conflict that might develop, because 
the Equal Pay Act was an amendment to the Fair Labor 
Standards Act. The Fair Labor Standards Act carries out 
certain exceptions.

All that the pending amendment does is recognize those 
exceptions, that are carried in the basic act. [Emphasis added]

110 Cong. Rec. 13647 (1964). See Laffey v. Northwest Airlines,
------F .2 d -------, 13 FE P Cases 1068, 1078 and n. 104 (D.C. Cir.
1976); Manhart, supra, 553 F.2d at 587-588, 590. Senator Bennett, 
the only other Senator to offer an explanation of the Amend­
ment’s meaning prior to its adoption, characterized it as a “proper 
technical correction of the bill,” 110 Cong. Rec. 13647, designed 
“to provide that in the event of conflict, the provisions of the 
Equal Pay Act shall not be nullified.” Id. Senator Humphrey also 
spoke, saying nothing about what the Amendment meant, but re­
marking that it was “helpful” and “needed.” Id. After adoption 
of the Amendment, he made further remarks, fairly described as 
confusing. 110 Cong. Rec. 13663-64. See text at pp. 48-51 infra,.

Senator Bennett’s remarks one year later, 111 Cong. Rec. 13359 
(July 11, 1965), are not, of course, legislative history. See remarks 
of Senator Clark, one of the floor managers of Title VII, 111 Cong. 
Rec. 18261-63 (July 26, 1965).

40 This fourth Equal Pay Act exception was evidently designed 
to deal with neutral policies which might have a differential im­
pact on women workers, such as a shift differential or a training 
program under which, in practice, men receive higher wages than 
women. See Corning Glass Works v. Brennan, 417 U.S. 188 
(1974) ; Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir.), 
cert, denied, 414 U.S. 822 (1973).

422



47

The Water Department attempts circumvention by 
arguing that an explicit policy of paying all women less 
than all men is simply not based on sex, it is based on 
longevity.*1 However, it is impossible to hide or disguise 
the reality that the sole criterion involved is gender per se. 
And, as discussed in I.A. supra, sex is a highly imprecise 
proxy for length of life: the vast majority of men and 
women can be matched in death ages. Unavoidably, the 
Department’s wage policy is based explicitly and exclusively 
on sex.

Since Section 703(h) by definition does not authorize 
explicitly sex-based wage policies, statutory analysis would 
ordinarily end the inquiry here. However, the Water De­
partment and insurance amici contend that a colloquy be­
tween Senators Humphrey and Eandolph indicates a Con­
gressional intent to exempt sex-based differentials in re­
tirement plans from the ambit of Title VII. We turn next 
to that contention. * 474

41 Contrast with Petitioners’ Brief at 11-16 the Court’s clear 
understanding in Corning Class Works v. Brennan, 417 U.S. 188 
(1974), that the words “any other factor other than sex” mean a 
factor apart from sex, and surely not a factor explicitly identified 
by a gender label. The Court, in Corning, affirmed a lower court 
ruling that the pay disparity “was in large part” related to sex,
474 F.2d at 233, and did not serve merely as compensation for 
night work. So long as the sex factor continued to infect the 
calculus, the employer could not successfully urge in defense that 
the practice fell within the exception for “a factor other than sex.”

423



48

2 . T he H um phrey-R andolph C olloquy D oes Not 
Indicate a C ongressional Intent to  A llow Gender 
L ines W hich Operate to the D etrim ent o f W om en  
W orkers.

After passage of the Bennett Amendment, Senators 
Humphrey and Randolph held the following colloquy:

M e . R andolph. Mr. President, I  Avish to ask of the 
Senator from Minnesota [Mr. Humphrey], who is the 
effective manager of the pending bill, a clarif ying ques­
tion on the provisions of Title VII.

I have in mind that the social security system, in cer­
tain respects, treats men and women differently. For 
example, widows’ benefits are paid automatically; but 
a widower qualifies only if he is disabled or if he was 
actually supported by his deceased wife. Also, the wife 
of a retired employee entitled to social security receives 
an additional old age benefit; but the husband of such 
an employee does not. These differences in treatment 
as I recall, are of long standing.

Am I correct, I ask the Senator from Minnesota, in 
assuming that similar differences of treatment in in­
dustrial benefit plans, including earlier retirement op­
tions for women, may continue in operation under this 
bill, if it becomes law?
M e . H um phrey . Yes. That point was made unmis­
takably clear earlier today by the adoption of the Ben­
nett Amendment; so there can be no doubt about it. 
[Emphasis added]

110 Cong. Rec. 13663-64 (June 12, 1964).

Senator Humphrey’s remarks are best described as con­
fusing. For example, the Senator stated, what plainly is not 
the law, that the Equal Pay Act allows employers to retire 
women earlier than men. The Equal Pay Act simply has no

424



49

application to differential retirement ages based on sex.42 * * * * * 
By contrast, Title VII unquestionably does prohibit such 
discrimination. Bartmess v. Drewrys, U.S.A., Inc., 444 F.2d 
1186 (7th Cir.), cert, denied, 404 U.S. 939 (1971). Since dis­
cussion on the floor of Congress is “generally entitled to 
little probative weight” in discerning legislative intent, 
absent clear indications that the speakers are well informed, 
2A Sands, Sutherland Statutory Construction, '§48.13 at 217 
(4th ed. 1973), the Senator’s remarks in this context48 pro­
vide no guidance for the Court.

Second, the Senators seemed concerned with preserving 
favorable treatment for women (in particular, for women 
dependents who were either widows or wives of retired 
men). They did not focus on the question whether sex-

42 As the Ninth Cireuit observed:
. . . Senator Humphrey’s remark reflects an erroneous inter­
pretation of the Equal Pay Act. Because all that the Bennett
Amendment did was to incorporate the exemptions of the
Equal Pay Act into Title VII, it is questionable whether the 
Senator’s statement, made during the debates on the incorpo­
rating statute, would be significant when it erroneously inter­
prets the incorporated statute.

Manhart, supra, 553 F.2d at 590.
48 Congress earlier (1956) displayed its awareness of the severely 

adverse impact on women of early retirement policies employers 
applied to them, but not to men. To compensate, Congress ad­
justed the social security benefit calculation formula to favor re­
tired women workers. In 1972, with Title V II on the books, 
covering the range of private and public sector employment, and 
outlawing the discriminatory practices that provided the raison 
d’etre for the 1956 sex-specific classification, Congress phased out 
the social security differential by extending to men the more favor­
able calculation formerly reserved to women. See Califano v. 
Webster, 97 S.Ct. 1192 (1977), and references cited therein.

425



50

based lines which penalize women wage earners should be 
preserved.44

However, this Court focused on that precise question, in 
a decision issued three months after Gilbert. In Califano v. 
Goldfarb, 430 U.S. 199 (1977), the Court unequivocally re­
jected attempts to bolster gender lines as favorable to some 
women (dependent wives or widows) when those same lines 
in fact penalized women wage earners. Relying on care­
fully reasoned precedent, Weinberger v. Wiesenfeld, 420 
U.S. 636 (1975), and Frontiero v. Richardson, 411 U.S. 677
(1973), the Court in Goldfarb invalidated the sex criterion 
in the very social security provisions cited by Senator Ran­
dolph.

If these sex-based classifications and other “similar dif­
ferences” operate to deprive women wage earners of equal 
protection, they cannot be valid “factors other than sex” 
allowed by the Bennett Amendment. For as the Court fur­
ther stated in Gilbert:

44 To the extent that the Senators proffered the Social Security 
system as a model to he followed, that system now pays equal re­
tirement benefits to men and women; although at the time it 
accorded women workers a more favorable benefit calculation 
formula “to compensate women for past economic discrimination. 
Calif ano v. Webster, 97 S. Ct. 1192, 1195 (1977). The Court recog­
nized the validity of that compensatory purpose, noting that even 
with a more favorable benefit formula, women workers, because of 
the depressed wages they were paid, received lower average retire­
ment benefits than men ($179.60 per month for men versus $140.50 
for women). Webster at n.5. The Court explained: “ . . . we have 
rejected attempts to justify gender classifications as compensa­
tion for past discrimination against women when the classifications 
in fact penalized women wage earners, Calif ano v. Goldfarb, ■ ■ ■ 
Weinberger v. Wiesenfeld, . . .  or when its legislative history 
revealed that the classification was not enacted as compensation 
for past discrimination.” 97 S. Ct. at 1194. See also Lewis v. 
Cohen, 417 F. Supp. 1047 (E.D. Pa. 1976).

426



51

. . . court decisions construing the Equal Protection 
Clause of the Fourteenth Amendment . . . are a useful 
starting point in interpreting [Title VII].

Gilbert, supra, 429 U.S. at 133. And certainly Title VIPs 
sex discrimination prohibitions are more stringent than 
those afforded by the guarantee of equal protection. Wash­
ington v. Davis, 426 U.S. 229 (1976).

3. T he W age and H our A dm inistrator’s Interpretive  
R egulation, 2 9  C.F.R. § 8 0 0 .1 1 6 (d ) ,  Is Not 
Entitled to D eference.

The insurance amici’s third argument relies on a Labor 
Department (Wage and Hour Administration) interpretive 
bulletin, 29 C.F.E. §800.116(d),45 which purports to au­
thorize sex-based differentials in either the employer con­
tributions for retirement programs, or the employee bene­
fits received under them.46 That regulation provides:

45 The Water Department relied on this bulletin in the Ninth 
Circuit but has abandoned the argument before this Court, ap­
parently because the Labor Department submitted a brief below 
arguing the interpretation was not applicable to this case.

Instead, petitioners argue that the Court should defer to a 
Labor Department interpretation when it favors defendants, but 
reject as “weightless” any Department interpretation that favors 
plaintiffs. Brief a t 28-29, 35. This “heads, we win, tails, you lose” 
position is typical of the view petitioners take in this ease.

46 There is an initial question whether the Equal Pay Act, which 
is limited to a prohibition on sex-based wage differentials, reaches 
employer contributions for retirement programs or the employee’s 
receipt of benefits under these programs. See the Wage and Hour 
interpretive bulletin, 29 C.F.R. §800.113, stating:

Study is still being given to some categories of payments 
made in connection with employment subject to the Act, to 
determine whether and to what extent such payments 
are remuneration for employment that must be counted as 
part of wages for equal pay purposes. These categories of 
payments include . . . contributions irrevocably made by an

427



52

If employer contributions to a plan providing insurance 
or similar benefits to employees are equal for both 
men and women, no wage differential prohibited 
by the equal pay provisions will result from such 
payments, even though the benefits which accrue to 
the employees in question are greater for one sex 
than for the other. The mere fact that the employer 
may make unequal contributions for employees of 
opposite sexes in such a situation will not, however, 
be considered to indicate that the employer’s payments 
are in violation of section 6(d), if the resulting benefits 
are equal for such employees.

29 C.F.E. §800.116(d). Because this Court relied, in part, 
on the above Wage and Hour Administrator’s interpretation 
in declining to follow the EEOC’s pregnancy guideline m 
Gilbert, the supporting amici skip over the plain meaning 
of the Bennett Amendment and jump directly to the regula­
tion. They baldly assert that the Administrator’s interpre­
tation controls this case; they do not explain how a regula-

employer to a trustee or third person pursuant to a lorn 
fide plan for providing old-age, retirement, life, accident, or 
health  insurance or sim ilar benefits for employees. [Lmplias
added]

The uncertainty this statement reflects evidently stems from the
lim ited  purview  of the Fair Labor Standards A ct to which the
Equal Pay Act was an amendment. See 29 U.b.O. 
defining the “regular rate” of pay for purposes of overtime pro­
visions of the FLSA as including:

. . .  all remuneration for employment paid to, or on behalf 
of, the employee, but shall not be deemed to include

(4) contributions irrevocably made by an employer to a 
trustee or third person pursuant to a bona fide plan jo 
providing old-age, retirement, life, accident, or health msur 
ance or sim ilar benefits for employees.

The Equal Pay Act does not define the terms “wages’ or _ 
ra te s” but the House Committee on Education and Labor m i» 
report on the bill, stated that “ [t]he definitions and interpretation, 
of the Fair Labor Standards Act apply.” H.Rep. No. 309, »» 
Cong. 1st Sess. (1963), 109 Cong. Rec. 9211.

428



tion allowing a sex-based factor as a defense squares with 
an Equal Pay Act exception expressly limited to factors 
“other than sex.”

Amici misconstrue the thrust of the Gilbert opinion. 
First, the central holding of Gilbert was that the disability 
classification at issue was not sex-based at all; rather it 
was a neutral policy. See Nashville Gas Co. v. Satty, 46 
U.S.L.W. 4026 (Dec. 6, 1977). Obviously, in that con­
text, a Labor Department regulation allowing a differential 
would be based on a “factor other than sex,” i.e., pregnancy, 
and thus would conform to the language of the Equal 
Pay Act’s fourth exception. Second, this Court did not hold 
that Wage and Hour Administration interpretations were 
always to be favored over EEOC regulations. It merely 
found that a portion of a particular EEOC regulation which 
suffered from a number of defects was not entitled to defer­
ence.

In Gilbert, the Court referred to the Skidmore v. Swift $  
Co., 323 U.S. 134,140 (1944), statement of the role of inter­
pretive rulings:

The weight of such a judgment in a particular case 
will depend upon the thoroughness evident in its con­
sideration, the validity of its reasoning, its consistency 
with earlier and later pronouncements, and all those 
factors which give it power to persuade, if lacking 
power to control.

In this case, it is the Wage and Hour interpretation which 
does not merit deference, and the EEOC position which 
does.

The most conspicuous defect of 29 C.F.E. §800.116 (d) is 
its allowance of explicit sex-based differentials in employer

53

429



54

contributions for retirement plans and in retirement bene­
fits received by employees. In stark contrast, the Equal 
Pay Act expressly prohibits sex-based differentials, and 
affords a defense only to employers who establish that a 
pay disparity is occasioned by a “factor other than sex,” 
e.g., a bona fide shift differential, Corning Glass Co. v. 
Brennan, 417 U.S. 188 (1974), or training program. 
Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir.), 
cert, denied, 414 U.S. 822 (1973).

This conflict with the Equal Pay Act is highlighted by a 
second Labor Department regulation, which is inconsistent 
with 29 C.F.R. §800.116(d). The second regulation, 29
C.F.R. §800.151, provides:

A wage differential based on claimed differences be­
tween the average cost of employing the employer’s 
women workers as a group and the average cost of em­
ploying the men workers as a group does not qualify 
as a differential based on any “factor other than sex,” 
and would result in a violation of the equal pay provi­
sions, if the equal pay standard otherwise applies. 
To group employees solely on the basis of sex for pur­
poses of comparison of costs necessarily rests on the 
assumption that the sex factor alone may justify the 
wage differential—an assumption plainly contrary to 
the terms and purposes of the Equal Pay Act. Wage 
differentials so based would serve only to perpetuate 
and promote the very discrimination at which the Act 
is directed, because in any grouping by sex of the em­
ployees to which the cost data relates, the group cost 
experience is necessarily assessed against an individual 
of one sex without regard to whether it costs an em­
ployer more or less to employ such individual than a 
particular individual of the opposite sex under similar 
working conditions in jobs requiring equal skill, effort, 
and responsibility.

430



55

Both the Water Department’s former policy of paying 
women lower take-home wages than men and the familiar 
analogue of paying women lower retirement benefits than 
men are “based on claimed differences between the average 
cost of employing the employer’s women workers as a group 
and the average cost of employing the men workers as a 
group . 29 C.F.R. §800.151. That is, both policies rest
on the proposition that the average cost of the same amount 
of retirement pay will be higher for women as a class than 
for men as a class, and that this higher cost should be re­
flected either on the contribution end (by requiring higher 
contributions from women, as here), or on the benefits end 
(by providing lower benefits to women). Moreover, under 
these two policies, “the group cost experience is necessarily 
assessed against an individual of one sex without regard 
to whether it costs an employer more or less to employ such 
individual than a particular individual of the opposite 
sex . . . , ” thus serving “only to perpetuate and promote the 
very discrimination at which the Act is directed . . . . ” 29
C.F.B. §800.151. As discussed in I.A. supra, the group 
cost experience is in fact assessed against the vast majority 
(84%) of women who will not outlive similarly-situated 
male co-workers.

The Labor Department is thus committed to two incon­
sistent approaches. One allows sex-based cost averaging; 
the other does not. Forced to choose between the two ap­
proaches, in the first case raising the conflict, the Labor 
Department opted for the regulation prohibiting sex-based 
cost averaging. In the court below, it filed a brief specifi­
cally relying on 29 C.F.R. §800.151, without addressing the 
issue of the continued viability of 29 C.F.B. §800.116(d).

431



56

Conrf S  remamS’ and mUSt be reS0lved thisCourt. The proper resolution is the one embraced for this
case by the Labor Department below, for 29 C.F.R. §800.151
a one accords with the plain meaning of the Equal Pay
Act, its legislative history, and its purpose.

. AIt,IT eh there was some discussion during the Congres­
sional hearings on the Equal Pay Act concerning hypothe­
sized greater employment costs of women, Congress specifi-

reZ  “  amendment offered %  Representative
“w h itr,!  T  W  all°Wed a wage diff^ential
cost 7 7  6X066(3 aScertainaWe and specific added 
osts resulting from employment of the opposite sex” (109
ong Rec. 9217). In urging rejection of Representative
mdley s proposed amendment, two of the Equal Pay Act’s

sponsors indicated that while costs might be a factor under
t w T 30 ’ the empl°yer would ^ v e  to (1) establish
that they were measured under a neutral policy, such as

sex’i p 6181̂  al±e t0 aU emPloyees- “regardless of
x (Rep. Goodell, 109 Cong. Rec. 9206, 9217) and, in addi-

7 ;  7  af al/ ze a11 eosts> including any increase in pro-
Th 1V1 7 iao n°Uld °ffSet alleged greater costs (Rep. Thompson, 109 Cong. Rec. 9207).

Similarly, the Senate Labor Committee rejected any per 
se ing up a cost <j[efense f Qr ajj emp]0yers pgggd 

on one element of cost: '

dIovttiptU- n f  Wn ° cost resulting from the em-
bv a n  n rl z, womei1 ls °ne that can be only answered 
to inrlipnf 7  mvJe.^ tffati°n. Evidence was presented 
these 6 a wbile there may be alleged added costs,
nroducTfr<; m° f  han comPensated for by the higher.

t ? ilW°men against men performing the 
same work and that the overall result for the employer

432



57

was a lesser production cost than would result from 
the hiring of only men. Furthermore, questions can 
legitimately be raised as to the accuracy of defining 
such costs as pension and welfare payments as related 
to sex. [Emphasis added]

S. Rep. No. 176, 88th Cong., 1st Sess. 4 (1963); 109 Cong. 
Rec. 8915.

29 C.F.R. §800.116 (d) does not meet the stringent stand­
ard Congress contemplated for a cost defense. The regula­
tion establishes a per se rule for all employers and isolates 
a single cost element, rather than requiring an “ad hoe 
investigation” as to each employer. It does not require 
the employer to analyze all costs associated with the em­
ployment of men and women, including costs that might be 
higher for men (e.g., lower productivity, higher suscepti­
bility to disabling injury, higher dependents’ costs under 
fringe benefit programs). And it does not call for a neutral 
policy, under which both men and women might receive 
lower pay for the higher costs attributable to them, “re­
gardless of sex” (see 109 Cong. Rec. 9217, Rep. Groodell); 
rather, it,allows employers to pay women less, solely be­
cause of their sex.

Moreover, 29 C.F.R. §800.116(d) violates the central pur­
pose of the Equal Pay Act—raising the depressed economic 
status of women workers. Declaration of Purposes, Equal 
Pay Act, Section 2(a)(1), 77 Stat. 56; Shultz v. Wheaton 
Glass Co., 421 F.2d 259, 265 (3d Cir.), cert, denied, 398 
P.S. 905 (1970); Shultz v. American Can Co.—Dixie Prod­
ucts, 424 F.2d 356, 360 (8th Cir. 1970). In contrast, 29
C.F.R. §800.116(d) directly allows employers to provide 
lower pension benefits for women workers; and, by impli­
cation, allows lower take-home wages for women workers.

433



58

As Senator Hart said in the debates on the Equal Pay 
Act:

We have long passed the time when women were al­
legedly working for “pin money.” Women are work­
ing to earn a living, to support families or to contribute 
to the family’s ability to send the children to college 
—in addition to whatever personal sense of achieve­
ment may be involved.

The supermarket does not have a special price on its 
groceries for women, the doctor does not have a special 
rate for them, their rent is not based on sex. Why then 
do we allow a pay differential to continue which gives 
them a smaller paycheck than others performing the 
same work?

109 Cong. Eec. 8916 (May 17, 1963). Senator Hart’s re­
marks hold true whether women are current participants 
in the labor force or retired workers. As the Senate Com­
mittee stated in recommending passage of the bill, “The 
general purchasing power and living standard of workers 
are adversely affected by discriminatory pay rates.” S. 
Rep. No. 176, supra, at 1-2; 109 Cong. Rec. 8914. The pur­
chasing power and living standard of retired women work­
ers, one of the poorest groups in the American economy, 
Women and Poverty, supra, are no less affected by dis­
criminatory pension benefit rates.

In sum, no deference is due 29 C.F.R. §800.116(d) in the 
context of this case. The Wage and Hour Administrator’s 
interpretation is inconsistent with another Labor Depart­
ment regulation, and fails to comport with the express 
language of the Equal Pay Act, its legislative history, and 
its purpose. “Habit (long-standing among insurers), rather 
than analysis,” appears to account for it. 29 C.F.K'

434



59

§800.116(d) is not the product of thorough consideration or 
careful reasoning. I t  is impossible to harmonize with the 
general position the Labor Department takes against sex 
averaging. In short, it reflects none of the factors that 
give an interpretive ruling “power to persuade.”

4. EEOC’s G uidelines on P en sion  P lans Are 
Entitled to  D eference.

The EEOC guidelines on discriminatory retirement plans 
provide, in relevant part:

It shall be an unlawful employment practice for an 
employer to have a pension or retirement plan which 
establishes different optional or compulsory retire­
ment ages based on sex, or which differentiates in bene­
fits on the basis of sex.

29 C.F.E. §1604.9(f). The guidelines further provide:

It shall not be a defense under Title YII to a charge 
of sex discrimination in benefits that the cost of such 
benefits is greater with respect to one Sex than the 
other.

29 C.F.E. §1604.9(e).

These guidelines constitute a single, comprehensive, 
logically-consistent position which fully implements the 
grand design of Congress in passing and amending Title 
VII. They suffer none of the defects of the Wage and 
Hour ruling discussed in the preceding section, nor any 
of the flaws the EEOC pregnancy guidelines exhibited. 
Under the Skidm.ore standard set out in Gilbert, they pos­
sess “power to persuade.”

In Gilbert, this Court declined to follow a portion of 
the EEOC pregnancy guidelines in part because the posi-

435



60

tion espoused was not a contemporaneous interpretation 
of Title VII and was contradicted by an earlier Commis­
sion position.47 The Commission’s pension plan guidelines, 
however, are in accord with its earliest position on the 
issue. Thus, on January 26, 1966—just seven months after 
Title VIPs effective date48—the Commission issued a de­
cision finding reasonable cause to believe a sex-discrimina­
tory pension plan violated Title VII. Rosen v. Public Serv­
ice Electric & Gas Co., 409 F.2d 775, 777 and n. 8 (3d Cir. 
1969) (quoting the Commission decision). The plan dis­
criminated against men by giving male early retirees 
smaller benefits than identically-situated female early re­
tirees, solely on the basis of sex. I t discriminated against 
women by forcing them to retire five years earlier than 
men, solely on the basis of sex. These two policies—dif­
ferences based on sex in benefits or retirement ages—are 
precisely the policies forbidden under the Commission’s 
guidelines. 29 C.F.R. §1604.9, 37 Fed. Reg. 6836 (April 5,
1972). See also 29 C.F.R. §1604.31(a), 33 Fed. Reg. 3344 
(Feb. 24, 1968).49

47 But cf. Nashville Gas Co. v. Satty, 46 TJ.S.L.W. 4026 (Dec.
6, 1977).

48 Title V II became effective on July 2, 1965. Pub. L. 88-352,
§716(a).

49 This earlier guideline provided:
(a) A difference in optional or compulsory retirement ages 

based on sex violates Title VII.
(b) Other differences based on sex, such as differences in benefits 

for survivors, will be decided by the Commission by the 
issuance of Commission decisions in cases raising such issues. 33

33 Fed. Reg. 3344 (Feb. 24, 1968).

4 3 6



61

Nor has the Commission taken inconsistent positions on 
sex-discriminatory retirement plans.50 Indeed, it has issued 
a steady stream of decisions declaring inconsistent with. 
Title VII both retirement age and benefit differentials based 
on sex. See quoted Decision, Rosen, supra (1-26-66) (age 
and benefits); Case No. YNY 9-034, CCH EEOC Decisions 
([6050 ( 6-16-69) (age and benefits for survivors); Case No. 
YNY 9-027, 1 FED Cases 921 (7-3-69) (age); Decision No. 
70-45, CCH EEOC Decisions 1)6041, 2 FEP Cases 166 (7- 
18-69) (age); Decision No. 70-75, CCH EEOC Decisions 
116049, 2 FEP Cases 227 (8-13-69) (age); Decision No. 70- 
706, CCH EEOC Decisions 1)6149, 2 FEP Cases 684 (4-20- 
70) (age); Decision No. 71-562, CCH EEOC Decisions 
|6184, 3 FEP Cases 233 (12-4-70) (age and benefits); Deci­
sion No. 71-1102, CCH EEOC Decisions 1)6200, 3 FEP Cases 
271 (12-31-70) (age); Decision No. 71-1580, 3 FEP Cases 
812 (4-8-71) (age and benefits for survivors); Decision No. 
72-0702, CCH EEOC Decisions 1)6320, 4 FEP Cases 316 
(12-27-71) (age); Decision No. 72-1919, CCH EEOC De­
cisions lf6370, 4 FEP Cases 1163 (6-6-72) (benefits); Deci­
sion No. 74-118, 2 CCH EPG 1)6431 (4-26-74) (benefits); 
Decision No. 75-020, 11 FEP Cases 1496 (9-4-74) (bene­
fits); Decision No. 75-147, CCH EEOC Decisions 1)6447, 
H FEP Cases 1486 (1-13-75) (age and benefits).

50 Some amici cite a July 1966 opinion letter of an EEOC Gen­
eral Counsel adopting the general approach of 29 C.F.R. §800.116 
(d). This isolated opinion of a General Counsel does not have the 
same status as decisions or regulations issued by the full Com­
mission, and indeed was directly contrary to the prior Copimission 
guidelines, still in effect in July 1966, which listed the Equal Pay 
Act regulations EEOC would follow as 29 C.F.R. §800.119-800.163 
(thereby specifically excluding 29 C.F.R, §800.li6(d)). See 29
C.F.R. §1604.7(b), 30 Fed. Reg. 14928 (Dec. 2, 1965), discussed 
at p. 62 infra. Finally, the General Counsel opinion is no longer 
published, and has not been cited or discussed in any previous 
case.

437



62

Some amici have tried to construct a change in EEOC’s 
position on retirement plans from, an earlier Commission 
regulation on the effect of the Bennett Amendment, 29
C.F.R. §1604.7, 30 Fed. Beg. 14928 (Dec. 2,1965). However, 
in this early regulation, the Commission specifically de­
clined to follow the Labor Department regulation set forth 
at 29 C.F.B. §800.116 (d ) :

. . . the Commission will make applicable to equal pay 
complaints filed under Title YII the relevant interpre­
tations of the Administrator, Wage and Hour Division, 
Department of Labor. These interpretations are found 
in 29 Code of Federal Regulations, Part 800.119- 
800.163. [Emphasis added]

29 C.F.R. §1604.7(b). Since the Commission never deferred 
to 29 C.F.R. §800.116 (d), its issuance of a series of deci­
sions and guidelines over the years, all disapproving sex- 
based lines in retirement plans, whatever the proffered 
rationale, surely demonstrates consistency, not a change 
in position. The Commission elaborated and formalized 
its position over the years; it did not change that position. 
Thus, the Commission’s position on discriminatory retire­
ment plans reflects and builds upon EEOC’s early construc­
tion of the Act, and exhibits none of the inconsistencies 
that shroud the Labor Department regulations. Deference 
is therefore due to EEOC’s informed judgment.

In conclusion, the Bennett Amendment provides no 
refuge for the Water Department or its insurance industry 
amici. I t supplies no defense to a discriminatory wage 
policy explicitly based on “gender as such.” Of the two 
conflicting Labor Department regulations pertinent to this 
case, only 29 C.F.R. §800.151 is entitled to deference; it

438



63

alone conforms to the express language and purpose of the 
Equal Pay Act. Finally, the EEOC guidelines on pension 
plans are fully entitled to deference. They embody a sin­
gle, comprehensive, logically-consistent position anchored 
solidly to the purpose of Title VII—that women should 
not be pigeonholed or lumped together because of their 
sex, nor should they be deprived “of protection for [them­
selves and] their families which men receive as a result of 
their employment.” Goldfarb, supra.

II.

The decision below accords with this Court’s principal 
equal protection/gender classification decisions.

Sex-averaging arguments strikingly similar to those 
pressed here were firmly rejected in last Term’s principal 
equal protection/gender classification decisions, Craig v. 
Boren, 429 U.S. 190 (1976), and Califano v. Goldfarb, 430
T. S. 199 (1977). Those decisions may well be “a useful 
starting point in interpreting [Title V II].” General Elec­
tric Co. v. Gilbert, 429 U.S. 125, 133 (1976). Indeed, to 
the extent Title VII calls for review more stringent than 
the Constitution requires, see Washington v. Davis, 426
U. S. 229 (1976), the rulings in Craig and Goldfarb should 
make this an a fortiori case.

In Craig v. Boren, the statute at issue, prohibiting sale 
of beer to 18-21-year-old boys, was intended to foster traffic 
safety. Just as death dates for most people are not pre­
dictable in advance, so there was “no apparent way to 
single out persons likely to drink and drive.” 429 U.S. at 
227 (Rehnquist, J. dissenting). Therefore, Oklahoma used

439



64

sex as a proxy. Based on statistics indicating “young males 
pose by far the greater drunk driving hazard, both in terms 
of sheer numbers and in terms of hazard on a per-driver 
basis,” 429 U.S. at 226 (Rehnquist, J. dissenting), the 
State permitted girls to purchase beer at an earlier age 
than boys.

The Court acknowledged that the statistical disparities 
shown in Craig were “not trivial.” Nonetheless, given the 
elevated level of scrutiny appropriate to sex-based dif­
ferentials, the Court held Oklahoma’s statistical analyses 
“hardly can form the basis for employment of a gender 
line as a classifying device.” 429 U.S. at 201.51

Califano v. Goldfarb further developed the point made in 
Craig, that gender, like race, must not be used as a proxy 
for some other characteristic, attribute or condition. Gold­
farb involved the Social Security Act’s resort to the gender 
label “widow” as a surrogate for “surviving dependent 
spouse.” An unusually high correlation between gender 
and the trait gender purported to represent was advanced 
in Goldfarb. As Justice Rehnquist, in dissent, calculated, 
the correlation was approximately 90 percent. 430 U.S. 
at 238 n.7. The 90 percent “fit” urged in Goldfarb was 
rejected by the Court as justification for use of a sex

51 Justice Rehnquist’s dissenting opinion justifies a permissive 
approach to sex classification in the Craig setting, in substantial 
part, on the ground that only classifications disadvantaging women 
require, under the Court’s precedent, “elevated” scrutiny. 429 
U.S. at 219. Here, we have such a classification. Though most 
women and men live the same length of time, i.e., the vast majority 
of men and women born the same year may be paired by death 
age, see I.A. supra, sex-averaging yields a distinct advantage to 
the male pensioner and a distinct disadvantage to the female 
pensioner.

440



65

criterion. In contrast, the classification here misfits some 
84 percent of the affected population.

In sum, the classification in controversy is “based upon 
gender as such,” Geduldig v. Aiello, 417 U.S. 484, 496 n.20
(1974); there is at best a highly imperfect congruence be­
tween gender and the trait at issue; decisions “analyzing 
and discussing” 52 categorization by gender in an equal 
protection context cast in grave doubt the brand of sex 
averaging practiced by petitioner Water Department.53 
Given- these factors, the Title VII result should be ap­
parent: under the close review Congress commanded, 
the Water Department’s policy, ranging men and women 
in two separate lines, must fall.

52See General Electric Co. v. Gilbert, 429 U.S. 125, 133 (1976).
“ Amici TIAA-CEEP (Brief at 18) misread this Court’s 1971- 

1977 precedent. In none of the cases TIAA-CEEF cite did the 
Court assert the absence of “any basis in fact” for the classifica­
tion. On the contrary, the proposition in Reed v. Reed, 404 U.S. 
71 (1971), that men have more business experience than women, 
had ample empirical support. In Frontiero, 411 U.S. 677 (1973), 
Wiesenfeld, 420 U.S. 636 (1975), and Goldfarb, 430 U.S. 199 
(1977), statistics tendered by the Government fully documented 
fflen’g non-dependency and their labor-market orientation. And 
it is ludicrous to suggest that this Court relied upon any potential 
for individualized testing of beer drinking capacity in reaching its 
decision in Craig v. Boren, 429 U.S. 190 (1976).

441



66

III.

Congressional authority under Section 5 o f the Four­
teenth Amendment and the Commerce Clause plainly 
supports application o f Title VII’s ban on sex classi­
fication to the case at bar.

Petitioners’ constitutional argument (Brief at 37-46) are 
framed in utter disregard of the legislative history of the 
1972 amendments to Title VII, and this Court’s relevant 
precedent. In extending the coverage of Title VII, Con­
gress asserted its authority under both the Commerce 
Clause and Section 5 of the Fourteenth Amendment. See, 
e.g., S. Rep. No. 92-415, 92d Cong., 1st Sess. 11 (1971). 
Congressional intent was expressed explicitly: the amend­
ments bringing governments, government agencies and 
political subdivisions within Title VII were designed to 
afford to public employees “the same benefits and protec­
tions in equal employment as the employees in the private 
sector of the economy.” S. Rep. No. 92-415, 92d Cong., 
1st Sess. 9 (1971).

Beyond question, the post-Civil War amendments enlarge 
the powers of Congress, Fitzpatrick v. Bitzer, 427 U.S. 445, 
454 (1976), make Congress, not the judiciary, the chief 
guardian of protected rights, Ex parte Virginia, 100 U.S. 
339, 345 (1879), and permit legislation independent of a 
judicial finding that official action denies equal protection 
of the laws. Compare South Carolina v. Katzenbach, 383 
U.S. 301, 333-34, 337 (1966), with Lassiter v. Northhampton 
County Bd. of Elections, 360 U.S. 45 (1959). It is for Con­
gress to decide what legislation is necessary and proper 
in the exercise of its powers under either the Commerce

442



67

Clause or Section 5 of the Fourteenth Amendment, and 
the congressional choice of appropriate means for exercis­
ing those powers-—so long as the selected means are not 
elsewhere prohibited by the Constitution—should not be 
overturned by the judiciary. McCulloch v. Maryland, 4 
Wheat. 316, 421 (1819); Katzenbach v. Morgan, 384 U.S. 
641, 650 (1966). “Attributes of [state] sovereignty” in­
sulated from federal interference under this Court’s deci­
sion in National League of Cities v. Usery, 426 U.S. 833 
(1976), surely do not include the prerogative to discriminate 
on the basis of sex. See, e.g., Usery v. Allegheny County 
Institution District, 544 F.2d 148 (3d Cir. 1976), cert, 
denied, 430 U.S. 946 (1977); Usery v. Bettendorf Com­
munity School District, 423 F. Supp. 637 (S.D. Iowa 1976). 
See generally Calhoun, The Thirteenth and Fourteenth 
Amendments: Constitutional Authority for Federal Legis­
lation Against Private Discrimination, 61 Minn. L. Rev. 
313 (1977).

443



68

CONCLUSION

For the reasons stated above, the decision of the United 
States Court of Appeals for the Ninth Circuit should be 
affirmed.

Respectfully submitted,

R u t h  B ader Ginsbtjrg 
S usan  D eller Ross 
K athleen W illert P eratis 
Marjorie Mazen S mith  
B ruce J. E n n is

American Civil Liberties 
Union Foundation 

22 East 40th Street 
New York, New York 10016

Matthew  W . F in k in  
General Counsel 
American Association of 

University Professors 
Southern Methodist 

University School of Law 
Dallas, Texas 75275

Attorneys for the American Civil 
Liberties Union Foundation 
and the American Association 
of University Professors as 
Amicus Curiae

December, 1977

444



In The

&apr?ut? (Emtri nf thr luitm'i States
October Term, 1977

No. 76-1810

City of Los Angeles et al.,
Petitioners,

v.

Marie Manhart et al.,
Respondents.

On Writ of C ertiorari to the United S tates Court of Appeals 
fo r the N inth Circuit

BRIEF FOR TH E SOCIETY OF ACTUARIES AND THE 
AMERICAN ACADEMY OF ACTUARIES 

AS AMICI CURIAE

0/ Counsel:
Shea & Gardner 
734 15th Street, N.W. 
Washington, D.C. 20005

Lawrence J. Latto 
John  P arsons Wheeler III

734 Fifteenth Street, N.W. 
Washington, D.C. 20005

Attorneys for the Society of 
Actuaries and the 
American Academy 
of Actuaries

445





TABLE OF CONTENTS

Interest of the amici c u r ia e ...................................................  1

Introduction and sum m ary ...................................................  4

Argument................................     7

I. The pooling and classification of r isk s_________  7

II. Classification on the basis of sex in the adm inis­
tration of retirem ent program s and the effects of 
prohibiting this p rac tice ..... ...................... ........... . 12

A. Defined benefit plans ........... ....... .......... ....... .......  12

1. Non-contributory p lan s ..................  12

2. Contributory p la n s .................    18

3. Insurance contract p lans.........................   19

B. Defined contribution p lan s ..................................  23

C. Target benefit plans ................................... ........  26

III. The in ten t of C ongress............. ......................... ......  27

Conclusion .................        30

Appendices:

A. Principal types and features of retirem ent
plans .................... ..................................... ....... ...... A -l

B. Female and male longevity ...............................  B -l

Page

447



11

TABLE OF AUTHORITIES
Cases:

Helvering V. Le Gierse, 312 U.S. 531 (19 4 1 )..........
Rosen V. Public Service Electric and Gas Co., 328 

F. Supp. 454 (D.N.J. 1970), on remand from 409 
F.2d 775 (3d Cir. 1969) ..........................— ............

Page

16

448

Sta tu tory Provisions:

Civil Rights Act of 1964, Title VII, Pub. L. 88-352,
78 Stat. 253, as amended by the Equal Employ­
m ent O pportunity Act of 1972, Pub. L. 92-261,
86 Stat. 103, 42 U.S.C. § 2000e et seq. (1970 ed.
and Supp. V 1975)____________________ ______passim

Employee Retirem ent Income Security Act of 1974,
Pub. L. 93-406, 88 Stat. 829:

§ 204(b) (1) (F ) , 29 U.S.C. § 1054(b) (1) (F)
(Supp. V 1975) __________ __ _______  . 28

§ 204(c), 29 U.S.C. § 1054(c) (Supp. V
1975) ........ ................................ .......................... 29

§ 204(c) (2) (b) ( ii) , 29 U.S.C. § 1054(c) (2)
(b) (ii) (Supp, V 1975) .................. ........ ........ 29

§ 301(b), 29 U.S.C. § 1081(b) (Supp. V
1975) .................. ....... ............ ........... ......... ....... 19,28

I nt . Rev. Code of 1954, § 401 (1970 & Supp. V 
1975), as amended, 26 U.S.C.A. § 401 (1977
Supp.) ............................... ......... - ..........................------ A-l

D.C. Code An n . § 35-715 (1973)................................  41
Iowa Code § 507B.4.7 ( a ) , (b) (1975) .................41
Md. A n n . Code art. 48A, § 223 (a) (1972)_______  U
Va. Code An n . § 38.1-52 (1977 S upp .) ....................  11

Treatises and Articles:

A merican Council of L ife Insurance, P ension
F acts 1976....................... ....... .................... ........ ...... 5

A merican Council of Life  I nsurance, P ension
F acts 1977 ............ .......... ............ ...... ................ 4-5

A. Scheinfeld , Your Heredity and E nviron­
ment (1 9 6 5 )__________ - ......_.___ _____ ___ —- B'z

Bailey, Hutchison & N arber, The Regulatory Chal­
lenge to L ife  Insurance Classification, 25 Drake 
L. Rev. 779 (1976) ...................................................... 11



iii

Bayo, M ortality o f the Aged, 24 Transactions,
Society op Actuaries, Pt. 1 (1972)................. . B-l

Bayo & McKay, U.S. Population Projections for  
OASDHI Cost Estim ates, Actuarial Study No.
72 (U.S. Department of Health, Education and 
Welfare, Social Security Adm., Ofc. of the Actu­
ary, July 1974)_________ _____ ____________  B-4

Cherry, The 1971 Individual A nnu ity  M ortality 
Table, 23 Transactions, Society op Actuaries,
Pt. 1 at 475 (1972)....... ....... ......... .............. .............. .............. .............. ..............  B-2

Fellers & Jackson, Non-Insured Pensioner Mor­
tality, The UP-1984 Table, 25 Proceedings, 
Conference op Actuaries in Public Practice
456 (1976) ......... ...... ................. ........................... B-3

“Fewer Heart Disease Deaths,” Wall St. J., July 26,
1977, at 1, col. 3 .......... ..........................................  B-4

Greenlee & Keh, The 1971 Group A nnu ity  Mortal­
ity Table, 23 Transactions, Society of Actu­
aries, Pt. 1 at 569 (1971)................... ............... B-l, 2

Jenkins & Lew, A  New M ortality Basis fo r  A nnu­
ities, l  Transactions, Society of Actuaries
369 (1949)...... .... ............................. ....................  B-2

Lautzenheiser, Sex and the Single Table: Equal 
Monthly Retirem ent Income fo r  the Sexes?, 2 
Employee Benefits J ournal, No. 1 (Fall
1976) ............. .............. ............................ .............  B-4

M’Clintock, Special Tables fo r  the Estim ation of 
Mortality Am ong Annuitants, 6 Transactions 
of the Actuarial Society of America 13
(1900) ________ _________ ____________ ______  B -l

Metropolitan Life Insurance Co., Reduction in  Per­
inatal M ortality, 43 Statistical Bulletin 6
(May 1962) ........... ...... ...... ...... ....... ...... ...... . B-4

Metropolitan Life Insurance Co., Sex Differentials 
in Mortality Widening, 52 Statistical Bulletin
2 (Dec. 1971)____ ____ ______ ________ ____ B-3

Metropolitan Life Insurance Co., Sex Differentials 
in Mortality, 55 Statistical Bulletin 2 (Aug.
1974) .............................. ......................................  B-3, 4

TABLE OF AUTHORITIES—Continued
P age

449



TABLE OF AUTHORITIES—Continued

Metropolitan Life Insurance Co., Expectation of 
L ife  Am ong Nonwhites, 58 Statistical Bul­
letin 5 (March 1977) ........ ................................  12

Metropolitan Life Insurance Co., Longevity in  the 
United States at N ew  High, 58 Statistical
Bulletin 9 (May 1977).......... ..... ........................ 12

M ortality Differentials by Sex, Transactions, So­
ciety op Actuaries, 1973 Reports 225 (1974).. B-3,4 

N. Keyfitz & W. Flieger, World Population: An
Analysis of Vital Data (1968)......... ...... ....... B-l

Note, Sex Discrimination and Sex-Based Mortality
Tables, 53 B.U. L. Rev. 624 (1973)___________ B-4

P. Shepherd & A. Webster, Selection of Risks
(1957) ...... ............................................... - ..... ..... 11

Peterson, Group A nnu ity  M ortality Table, 4 Trans­
actions, Society of Actuaries 246 (1952).... ... B-l

Report of the Committee on Group Annuities, 
Group A nnu ity  M ortality, in Transactions, 
Society of Actuaries, 1.975 Reports 287 
(1976) ______ _____ _______________- .... . B-l

R. Mitchell, From Actuarius to Actuary
(1974) .................. ......... ....... ..................... .......... 1°

S. Huebner & K. Black, Life Insurance (8th ed.
1972) ....... .... ......................................... ..............  11

United Nations, Demographic Yearbook (23d
ed. 1971) ......... .... ................................. ..............  B-l

U.S. Dept, of Health, Education and Welfare, 
Public Health Service, National Center for 
Health Statistics, Vital Statistics of the 
U.S. 1971, Vol. II, Pt. A (1975)....... ...... ....... 11,12, B-l

Miscellaneous:
EEOC Decision No. 72-1919, June 6, 1972, CCH

EEOC Decisions (1973) H 6370 ________ ----- 16
Rev. Rul. 76-47, 1976-1 Int. Rev. Bull, at 109-. 29
Rule 42(2), Federal Rules of Civil Procedure----- 1
41 Fed. Reg. 48484 (1976)................. ............. -   28

iv

Page

450



In The

§upiw  (Emtrt nf %  Hmtrii States
October Term, 1977

No. 76-1810

City of Los Angeles et al.,
Petitioners,

v.

Marie Man hart et al.,
Respondents.

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

BRIEF FOR THE SOCIETY OF ACTUARIES AND THE 
AMERICAN ACADEMY OF ACTUARIES 

AS AMICI CURIAE

INTEREST OF THE AMICI CURIAE 1

This brief is submitted by two professional actuarial 
organizations, the Society of Actuaries and the American 
Academy of Actuaries.

Parties’ letters of consent to the filing of this brief have 
n tiled with the Clerk pursuant to Rule 4 2 (2 ).

451



2

The Society of Actuaries was formed in 1949 by a 
merger of the Actuarial Society of America (founded in 
1889) and the American Institute of Actuaries (founded 
in 1909). Members are either Associates or Fellows. To 
become an Associate of the Society, it is necessary to 
pass a series of five examinations, except where a waiver 
is granted for distinguished foreign actuaries. Admis­
sion as a Fellow of the Society requires passing four 
additional examinations.

These examinations are given by the Society and cover 
a broad range of topics involving actuarial considerations. 
In addition to general actuarial theory, the examinations 
cover a number of applications of actuarial theory, in­
cluding extensive training in employee retirement plans. 
Passage of these examinations is widely recognized as 
denoting high professional stature as an actuary.

The American Academy of Actuaries was formed in 
1965 as a national accrediting organization by the four 
existing national actuarial organizations—Casualty Ac­
tuarial Society, Conference of Actuaries in Public Prac­
tice, Fraternal Actuarial Association, and Society of Ac­
tuaries (the “constituent organizations” ). The Academy 
and its constituent organizations, or their predecessors, 
have represented the actuarial profession in the United 
States for nearly 90 years.

The accreditation role of the Academy fills a void, 
since the states do not license actuaries in a fashion 
similar to most other professions. The Academy mem­
bership today encompasses qualified actuaries in all areas 
of specialization and practice within the profession. Entry 
into the Academy involves both education and experience 
requirements. Over 90% of those actuaries in the United 
States who have satisfied the entrance requirements of the 
Academy have become members.

There are currently over 7,000 members of the Academy 
and the four constituent organizations. These actuaries

452



3

are employed by independent consulting actuarial firms, 
insurance companies, governmental departments and agen­
cies, and institutions of higher learning in academic roles. 
In recent years actuaries have also been employed by ac­
counting firms, management consulting firms, industrial 
corporations and labor unions.

The actuarial profession, as one of its major and most 
significant activities, plays a central and necessary role 
in the design and administration of employee retirement 
plans. In that connection actuaries perform computations 
and make recommendations without which these plans 
could not be sensibly and effectively administered. In 
many cases these computations and recommendations take 
into account the sex of the employees that participate in 
or are covered by the retirement plans. Our work has 
made us familiar with the day-to-day operation of re­
tirement programs. The work requires special training 
and experience and an understanding of a branch of 
mathematics—the theory of probabilities—without which 
anyone treating with averages and the classification of 
risks can fall rather easily into serious error.

We believe, accordingly, that we are in the unique posi­
tion of being able to offer the Court information that 
will supply a contextual background that should be help­
ful in its consideration of this case. We shall, for the 
most part, leave to the parties and the other amici dis­
cussion and analysis of the legal materials that bear 
upon the proper interpretation in this context of the 
prohibition in Title VII of the Civil Rights Act of 1964 
of discrimination against any individual “with respect 
to his compensation, terms, conditions or privileges of 
employment because of such individual’s . . . sex . . . .” 
Actuaries have no special expertise to offer in this regard. 
We can, however, help to inform the Court about the 
extent to which the sex of covered employees is and will 
continue to be taken into account in the administration

453



4

of retirement plans, about the manner and extent to 
which present practices might have to be changed if all 
or some sex classification were prohibited in connection 
with the fixing of contribution rates and benefit levels, 
what the principal effects of requiring such changes would 
be, and in general what the impact of the Court’s de­
cision might be in an area that affects hundreds of thou­
sands of employers and many millions of employees. We 
shall, in the course of that discussion, try to expose as 
fully as possible the premises that have been accepted by 
actuaries and which are in substantial part the bases for 
the opinions and recommendations that they have offered 
to plan sponsors and to insurance companies in the past.

We note at the outset that from the narrow viewpoint 
of the economic self-interest of the members of the ac­
tuarial profession there is no reason for us to support 
either affirmance or reversal of the judgment below. We 
believe we have the obligation to bring to the attention 
of the Court data acquired by us in the course of our 
work and to explain the principles and concepts that we 
employ in that connection.

INTRODUCTION AND SUMMARY

In 1976 over 40 million Americans were participants 
in some form of non-governmental retirement plan, of 
which there were about 500,000 then in effect. Putting 
aside the persons entitled to benefits under the Old Age 
Survivors and Disability Insurance Program (Social Se­
curity) , there were, in addition, another 15 million persons 
covered under retirement plans administered by federal, 
state and local governments. During 1976, ap p r o x i m a t e l y  

$48 billion was set aside for the payment of future bene­
fits, and at the end of that year approximately $413 
billion was held for that purpose.2

2 A merican Council op L ife I nsurance, P ension F acts 1977 
21, 30, 39-40, 41, 43 (1977) (publication of this booklet is due in

454



5

Retirement plans can be broadly divided into different 
categories in several different ways according to: (1)
whether the plan is drawn primarily in terms of the 
benefits that will be payable to employees upon retire­
ment (“defined benefit plans” ) or in terms of the con­
tributions that are made to provide those benefits (“de­
fined contribution plans” ); (2) whether contributions are 
made only by the employer (“non-contributory plans” ) 
or by the employer and the employees (“contributory 
plans”); (3) whether the benefits are provided by an 
insurance company which accumulates and invests the 
contributions and in certain circumstances also assumes 
the legal obligation to pay the benefits (“insured plans” ) 
or by a trustee that performs the same functions but 
without assuming such an obligation (“trusteed plans” 
or “non-insured plans” ) ; and (4) by the form in which 
the benefits will be paid, as, for example, annuities 
(monthly amounts for life, or for a stated number of 
years), or in a lump sum, or in some other manner. Thus, 
there could be a non-contributory defined benefit insured 
plan which provides for an election between a monthly 
payment for life or a lump sum.

Under defined benefit plans the central objective is the 
payment of a pre-determined annual benefit for each em­
ployee reaching normal retirement age, which amount 
will be payable for the life of the retiring employee. The 
amount of the annual benefit, with exceptions not rele­
vant here, is the same for a female employee as it is for 
a male with a comparable earnings and service record. 
Under defined contribution plans, a specified amount of 
money is set aside for each employee, whether male or 
female, and such amounts are accumulated until normal

late 1977 or early 1978; the figures are from a preliminary draft 
made available by the Council). Corresponding figures for the end 
“  j y 75 are at id,., P ension F acts 1976, 17, 19, 21, 26-27, 29, 31

455



6

retirement age. At normal retirement age, the employee 
is often given the option of receiving the accumulation 
in a lump sum or having it used to purchase a life 
annuity.3

Women, as a class, live longer than men, as a class. 
A group made up of a reasonably large number of women 
will survive for a greater number of years than will an 
equal number of men, if all other factors that affect 
longevity, primarily age distribution and health, are iden­
tical. The difference is substantial.4

As a consequence, if a lifetime pension in the same 
monthly or annual amount is to be provided for an equal 
number of men and women of the same ages, a larger 
amount will have to be expended to pay the pensions 
to the women than to pay the pensions to the men. Also 
as a consequence, if an amount of money is to be com­
pletely liquidated by the payment of lifetime pensions 
to a number of women, the annual amount that can be 
paid to each -will be less than can be paid to each of an 
equal number of men of identical ages in order to com­
pletely liquidate an identical initial amount of money. 
These inexorable facts of life, death and arithmetic, which 
cannot be changed by any Act of Congress or judgment of 
this Court, give rise to the narrow issue presented in this 
case as well as to a number of other analogous issues 
which may well be affected by the decision.

3 A more detailed summary of the principal types and features of 
retirement plans is set forth in Appendix A.

4 A discussion of the difference in longevity between men and 
women and of the probable reasons therefor is set forth in Appendix 
B.

456



ARGUMENT

I. T he P o o lin g  and  C lassifica tion  o f  R isks

A fundamental question in this case involves the de­
termination of when individuals may be treated as mem­
bers of a class to which they belong (and which classes 
are permissible and which impermissible) and when they 
must be treated solely as individuals. Since the business 
of providing and guaranteeing retirement annuities and 
insurance necessarily involves the pooling and classifica­
tion of persons and risks, some discussion of why this 
is so and how it is done is appropriate before we turn 
to how and why classification on the basis of sex is 
employed in the administration of pension plans.

As this Court noted in Helvering V. Le Gierse, 312 
U.S. 531, 539 (1941), persons who purchase life insur­
ance seek “to shift and distribute risk of loss from pre­
mature death.” The risk of loss referred to was that the 
funds accumulated to meet the needs of dependents would 
be insufficient if early death occurred. Those who provide 
annuities seek to shift and distribute the risk that the 
annuitants will live on unexpectedly for a long time and 
thereby exhaust the amounts set aside for their retire­
ment years. The actuarial principles and the methods 
that are employed in those instances are the same as 
they are in providing insurance against other risks, and 
may be illustrated by a hypothetical example.

Suppose 10,000 individuals of varying ages have each 
accumulated $100,000 savings which they wish to use 
(together with the earnings on the diminishing amounts) 
to provide level monthly amounts with which to meet their 
living expenses and which will continue as long as they 
live. Since no one of them can know how long he or she 
will live, no one of them can decide how much can 
prudently be used each month. If all are willing to pool 
their savings and to receive a level monthly amount that 
will cease upon their deaths, whether early or late, this

7

457



8

uncertainty can be eliminated. Although it cannot be 
known at the outset how long any one person will live, the 
accumulation and analysis of a large body of data per­
mit a very accurate prediction about the rate at which the 
entire class will die in the future. From this it can be 
readily determined what periodic installment payments 
may be made to each of them so that the initial amount 
of one billion dollars (and the earnings thereon as it is 
liquidated) will be used up at approximately the time 
when the last payment is made to the last survivor. Thus 
the uncertainty faced by each individual can, to a high 
degree of accuracy, be largely eliminated for the entire 
group without risk of loss, by pooling the risks and deal­
ing with classes of persons rather than individuals.

Before turning to the question of whether and why the 
group should be divided into smaller classes when de­
termining the amount that each individual should receive, 
it should be noted that if it were decided at the outset 
that all persons in the group should receive exactly the 
same periodic amount, it is readily determinable, on the 
basis of the predicted longevity of the persons in the 
group, what that amount should be. To determine the 
longevity of the group the characteristics that affect its 
longevity must be known. If the determination were to 
be made without taking the ages of the members of the 
group into account, the result would be grossly inaccurate, 
if the computation could be made at all, since some guess 
about the age distribution of the persons in the group 
would be necessary, and the result would depend signifi­
cantly upon the accuracy of the guess. This is because any 
reasonably large number of persons of a given age will, as 
a group, survive for more years than will an equal num­
ber of persons who are, say, ten years older. Similarly, if 
the determination of the amount to be paid were made 
without reference to the sexes of the individuals in the 
group, the result would be seriously and unacceptably 
erroneous. This is because a large number of women will

458



9

survive for a total number of years that is greater than 
the total number of years that the same number of men 
of the same ages will survive.

It has been almost universally accepted, however, with­
out serious dispute, that in any arrangement of this kind 
each person should receive an amount that, within the 
limits of administrative feasibility, is equal to a propor­
tionate share of the amount that will be paid to the 
identifiable sub-class of persons to which he or she be­
longs, the class which most nearly reflects his or her 
mortality. The validity of this principle that each mem­
ber of the group should be charged in proportion to the 
risk that he or she contributes to the pool of risks may 
be defended on either or both of two related grounds.

The first is that, when annuity arrangements of this 
kind are sold by a business, then, without reaching the 
question whether this principle is “fair” or “equitable,” 
it is essential to the successful operation of the business 
that persons who transfer higher risks to the group than 
others should be charged more. A well known practice or 
phenomenon, of great significance to the annuity and 
insurance business, is known as “adverse selection.” It 
has been the experience of the industry that, if a par­
ticular form of benefit is made available to the market 
at a price that is materially lower than its actual cost, 
that product will be bought in substantial quantities by 
the public.5 Correspondingly, a product that is over­
priced will tend to disappear.

To take an extreme example, if an insurance company 
that is currently charging 65-year-old women $10,000 
for a lifetime annuity of $65 per month and charging

5 Although annuity and insurance contracts contain a number 
of standard provisions required by law, they also vary greatly from 
company to company and over time. Contractholders are offered 
a variety of options, and different features are combined in different 
ways, reflecting the opinions of different companies about the needs 
and desires of the market. Each of these options must be priced to 
reflect approximately their respective costs.

459



10
55-year-old women $14,000 for the same annuity were 
to seek to simplify its procedures while obtaining the 
same revenue by charging both groups $12,000, it would 
not be long before there was a substantial increase in 
the number of its young customers and a decrease or the 
disappearance of its older customers. The result of such 
a development would be substantial losses.6 The business 
simply cannot sensibly be conducted in this fashion. For 
this reason new products are intensely scrutinized by 
actuaries to guard against the possibility of adverse selec­
tion, and, even so, dramatic examples of the practice con­
tinue to occur. It is this principle of adverse selection 
that explains why age and sex alone have been the sig­
nificant factors in pricing annuities.7

Second, many of the members of our profession also 
believe that there is a concept of “actuarial equity” that 
is sound, and that the value judgment can be made that 
it is “fair” to take into account differences in the risk 
contributed by an individual or group of individuals when­
ever there is sufficient statistical experience to make 
reliable predictions about those differences. They believe 
that where it is probable that a person or class of per­
sons will receive a larger share of the total benefits to be 
disbursed, the person or class (or those contributing on 
their behalf) should contribute a larger share of the

6 Some 200 years ago in England, merchants and professionals 
formed insurance societies that exacted assessments independently 
of age, sex, or other factors, and these societies failed as members 
aged, died, collected benefits, and thrust the costs onto the prospec­
tive young members, who therefore refused to join. R. Mitchell, 
F rom A ctuarius to Actuary 1, 2 (1974) (booklet published by 
Society of Actuaries).

7 Additional factors such as health and occupation are significant 
in pricing life insurance: if a person knows that he or she is 
likely to die sooner than the average (say, because of diagnosed 
disease or a hazardous occupation), then that person is not likely to 
purchase an annuity. The person “self-selects” out of the pool_of 
participants. In the case of life insurance, however, the prospective 
purchaser has the opposite motivation; thus the insurance company 
must take the applicant’s health and occupation into account.

460



11
amount needed to pay the benefits, even though it is not 
certain at the outset that they will actually receive a 
higher amount;8 “Actuarial equity” thus requires not only 
that persons with similar risks be treated alike but that 
persons with dissimilar risks not be treated alike. This 
view has probably played a large role in many state non­
discrimination laws that prohibit only “unfair” discrimi­
nation among persons in different classes;9

Two qualifications must be noted. Actuaries recognize 
that it is not only impossible to quantify the risk contrib­
uted by each individual, it is also not necessary to extend 
the classification process to its ultimate limit. Two classes 
with observable differences may nonetheless be lumped to­
gether and treated as a single class if the relevant differ­
ences, though identifiable, are relatively small. The minor 
“unfairness” may be outweighed by the added expense in­
volved in treating the two cases differently. Moreover, 
small differences do not give rise to significant adverse 
selection and so are acceptable. Second, certain classifica­
tions which may be perfectly feasible from an actuarial 
standpoint may be barred by others for reasons of social 
policy. For example, black persons exhibit shorter longev­
ity than white persons, but they are not charged a lower 
amount when they purchase annuities or a higher amount 
when they purchase life insurance.10

8 S. Huebner & K. Black, Life I nsurance 501 (8th ed. 1972) ; 
P. Shepherd & A. W ebster, Selection of Risk s  1 (1957).

9 See, e.g., Iowa Code § 507 B.4.7(a), (b) (1975), Md. An n . 
Code art. 48A, § 223(a) (1972); Va. Code A n n . § 38-715 (1977 
Supp.) But see D.C. Code A n n . § 35-715 (1973) (“unfair” qualifica­
tion omitted). For citations to the corresponding provisions of all 
the states, see Bailey, Hutchison, & Narber, The Regulatory Chal­
lenge to Life Insurance Classification, 25 Drake L. Rev. 779, 782 
»• H (1976).

10 Over the last 40 years the difference in mortality between black 
and white persons has been narrowing. Moreover, at the higher ages 
which are of primary concern in retirement plans the differences 
have become virtually nonexistent. U.S. Dept , of H ealth , E duca­
tion and Welfare, P ublic H ealth Service, N ational Center for

461



12

If any classification that is actuarially sensible is to be 
prohibited by law, it must be done by persons responsible 
for making and interpreting the law. Such a decision 
will ordinarily be accompanied by an increase in cost or 
by a change in the manner in which total cost is di­
vided, and ideally the persons responsible for the prohibi­
tion should decide how the division of costs should be 
made.

II. Classification on the Basis of Sex in the Administration 
of Retirement Programs and the Effects of Prohibiting 
This Practice

We turn now to the examination of the extent to which 
sex differences are currently taken into account in the 
administration of retirement plans and to the types of 
problems posed if current practices are required to be 
substantially revised. We believe it would be more helpful 
to the Court if we treat this subject in an organized way 
and discuss the specific type of plan that is at issue in the 
case at bar when it arises naturally in the discussion 
rather than at the outset. In the discussion that follows, 
the comparisons assume that the men and women involved 
are similarly situated, that is, such factors as salary, age, 
and length of service are identical.

A. Defined Benefit Plans
1. Non-contributory plans. Most defined benefit plans 

in effect today are non-contributory, that is, the employer 
pays the entire cost of the plan. Such plans ordinarily 
provide for the payment of equal monthly pensions as a 
single life annuity at retirement, without regard to the 
sex of the retiring employees. Such a non-contributory 
defined benefit plan provides a monthly (or other per­

H ealth Statistics, Vital Statistics of th e  U.S. 1971, Vol. II, Pt 
A, § 5 at 10 (1975). See also Metropolitan Life Insurance Co., 
Longevity in the United States at New High, 58 Statistical Bull. 9 
(May 1977); id., Expectation of Life Among Nonwhites, 58 STA­
TISTICAL Bull. 5 (March 1977).

4 6 2



13
iodic) payment that is identical for both sexes, assum­
ing, as we have said, that all other applicable factors are 
the same.11 So far as we know no one has suggested that 
such a plan discriminates unlawfully or unfairly on the 
basis of sex. Upon a closer look, however, it becomes evi­
dent that the issue is not as simple as might at first 
blush appear.

Many, and perhaps most, defined benefit plans permit 
employees to elect to receive their benefits in a different 
form than in equal installments payable for life. Indeed, 
ERISA now requires that, unless a married employee 
elects otherwise, the benefit must take the form of a 
“joint and survivor annuity” (installments payable so 
long as either spouse remains alive). The question im­
mediately arises, if for example the “normal” pension 
is equal to $1,000 per month for a retiring employee re­
gardless of sex, what the monthly payments should be un­
der a joint and survivor annuity, to take into account the 
fact that the benefits will be paid over a longer period 
of time. A similar question arises if the plan permits 
its employees to elect, instead of a joint and survivor 
annuity, an annuity for the period of the employee’s life 
with a minimum payment period of ten years or if the 
plan permits the benefit to be paid in a lump sum upon 
retirement.11 12

Employers have great flexibility in deciding what the 
benefit formulae shall be, and so we cannot describe any 
current universal practice. (App. A, p. A-l.) In the ma­
jority of cases, the ages and sexes of the participants

11 In practice, the employer’s cost as a percentage of pay may be 
higher or lower for the class of female employees, than for the class 
of male employees, depending upon the number of persons in each 
class and upon differences in mortality rates, disability rates, with­
drawal rates, rates of salary increase, average retirement age and 
other factors.

12 Only a minority of defined benefit plans permit a lump sum 
to be elected but there is no legal restriction against such a pro­
vision.

463



14

and spouses have been taken into account. Under a 
typical trusteed plan, for example, where a 65-year-old 
man who retires with a wife who is also 65 years old 
chooses a 50% joint and survivor annuity (payments 
to a spouse who survives the employee will be one-half 
of the initial installment payments), the monthly bene­
fit is reduced from $1,000 to take account of the fact 
that the benefit may be paid over a longer number of 
years. The $1,000 per month might be reduced to $870 
per month. If the retiring employee is a woman and her 
husband is 65 years old and she makes the same election, 
her $1,000 monthly pension might be reduced to $940 
for a monthly difference of $70. The $70 difference re­
flects the fact that the beneficiaries added in each case 
have different life expectancies. The female employee has 
less reduction because there is less chance that her hus­
band would collect payments after her death than there 
is in the case of a male employee with a wife age 65. 
The pensions are thus kept equal in cost, and, although 
the monthly amounts of pension differ, their values are 
equal if the length of time during which they are ex­
pected to be paid is taken into account.

If the two employees choose instead a lifetime annuity 
with payments to be made for no less than ten years 
(“ten years certain” ), then the installment payments 
may be reduced to $910 for the retiring male employee 
and $960 for the retiring female. Finally, if a lump 
sum is chosen by each of them under a plan that allows 
such lump sum distributions, the man will receive $11V 
000 and the woman $130,000. Thus, women would re­
ceive a significantly larger payment after completing the 
same work tour as men.

The principle that is followed in determining the fore­
going amounts is that the amount to be received by a 
retiring employee and the employee’s beneficiaries, regard­
less of the form in which the benefits are taken, should.

464



15

under assumptions of mortality and interest rates, be 
the actuarial equivalent of the “normal” or “primary” 
benefit. In more functional terms the amount of the 
benefit is determined so that, if the actual interest rate 
and the actual mortality of the employees are the same 
as that anticipated at the time of retirement, the cost 
of the benefit to the employer will be the same, regard­
less of the form in which the employee elects to receive 
the benefit.

Some plans determine the amount of joint and sur­
vivor benefits by the application of factors which do not 
take sex into account. Some plans have done so in order 
to reduce employee dissatisfaction which occurs because 
employees do not understand the reason for differing 
actuarial factors. In the joint and survivor example given 
above, instead of a payment of $870 for male employees 
and $940 for female employees, such an employer might 
shift to $900 regardless of sex. This would result in a 
reduction in cost for the employer to the extent that 
female employees elect the joint and survivor annuity. 
On the other hand, the plan would have an increased cost 
for male employees who make such an election. Some 
plans also do not take the sex of the retiree into account 
when converting a lifetime annuity into an annuity with 
ten years certain, although many do so. We know of no 
plans which do not take sex into account if lump sum 
payments are to be made.

The use of factors that do not take sex into account has 
been possible only in a plan where the gain or loss is 
borne by the employer. As is explained more fully below, 
under certain insured plans where the obligation to pay 
the benefit has by contract been assumed by an insur­
ance company, the contracts in current use require the 
use of conversion factors that include sex as a factor, 
and it would not currently be possible for an employer to

4 6 5



shift to unisex tables in determining joint and survivor 
benefits.

Another very commonly found provision permits the 
early or deferred retirement by an employee. Some plans 
provide for no change in the pension if such an election 
is made, and some plans provide for a change in the 
benefit by the application of retirement factors that do 
not take sex into consideration.13 Other pension plans 
include early retirement factors which do reflect the 
separate mortality experience of males and females, and 
these provide a lesser reduction for women than for men.14 
Here again this is obligatory under certain kinds of in­
sured plans.

Since there are many plans already in existence which 
do not provide for a reduction which differs by sex, it 
obviously would not be impossible for most plans to 
comply with a requirement that early retirement factors 
be independent of sex. Depending on the revised early 
retirement factors adopted and the extent to which early 
retirement is elected by persons of different sex, the 
change might increase or decrease the cost to employers. 
Some employers might choose to offset any such change 
by making approximately corresponding changes in other 
features of the plan. A similar analysis can be made 
of provisions that prescribe how the amount of a pension 
will change in the event of deferred retirement.

13 In at least one case it has been held that a plan that provides 
a reduction for men in the case of early retirement and for a lesser 
reduction for women for reasons unrelated to differences in longevity 
violates Title VII. Rosen V. Public Service Electric and Gas Co., 328 
F. Supp. 454 (D.N.J. 1970), on remand from 409 F.2d 775 (3d 
Cir. 1969).

14 The EEOC has held that such a plan provision violates Title 
VII. EEOC Decision No. 72-1919, June 6, 1972, CCH EEOC De­
cision s (1973) K 6370. We suggest respectfully that, while the 
decision may or may not be correct, the opinion does not reflect 
an appreciation of what we regard as the genuine difficulty of the 
issue that was presented.

16

466



17

What would be the result if it were to be held that 
Title VII or some other Act of Congress requires that 
all benefits, in whatever form elected, must be numeri­
cally identical rather than actuarially equivalent for em­
ployees of different sexes who are otherwise similarly 
situated? Such a requirement might be met in a variety 
of ways. To simplify the discussion, we shall change the 
above example to a plan with only the alternatives of a 
monthly lifetime pension and a lump sum. The employer 
might agree to pay all male employees who elect a lump 
sum $130,000 instead of $111,000. This, of course, 
would increase the cost to the employer and some em­
ployers might not be willing to assume this additional 
cost. There is no legal requirement concerning the over­
all level of benefits that must be provided, and some 
plans are far more generous than others. Accordingly, 
some employers might decide instead to reduce the lump 
sum payable to retiring female employees who elect that 
benefit to $111,000. That would reduce the employer’s 
cost, but it would hardly be of any benefit either to male 
or female employees. It would also raise questions about 
whether already vested benefits could be “reduced” in this 
fashion. Finally, the employer might try to keep its costs 
unchanged, at least prospectively, by providing that a 
pension benefit of $1,000 per month could be converted, 
for both male and female employees, into a lump sum 
of $120,000. The difficulty with this solution is that, if 
it were adopted, male employees who were well advised 
and who actually desired a lifetime pension might be 
able to elect a lump sum benefit, buy an annuity of 
$1,000 per month from an insurance company for less 
than $120,000 and pocket the difference. This would raise 
anew the question of whether equality between male and 
emale employees had in fact been achieved. The added 
enefit provided to male employees in this illustration 

would come partly from the employer and partly from

467



18

those women employees who had uneconomically elected a 
lump-sum benefit.

Another solution, and one that many expect would be 
the result, would be the determination by some employers 
to eliminate certain options, particularly the lump sum 
distribution option. This would be disadvantageous to the 
class of both women and men who might find the lump 
sum option attractive for such reasons as major illness.

2. Contributory plans. Most defined benefit plans are 
noncontributory, but a substantial minority requires em­
ployee contributions. Employee contributions are almost 
always—unlike the plan in the case at bar—unrelated 
to age or sex. To the extent that employee contributions 
are related to age or sex, they are found in plans adopted 
by governmental bodies and not by private institutions." 
Under most contributory plans the employer’s aggregate 
contributions will be substantially greater than the ag­
gregate contributions made by employees.

Since defined benefit plans which provide for different 
contribution rates for male and female employees are ex­
ceedingly rare, there would not be a widespread effeet if 
equal employee contribution rates were to be required in 
the case at bar. Significant problems would arise, however, 
if the sex of the employees could not be taken into ac­
count in determining amounts of benefits or amounts of 
employer contributions in contexts that have already been 
described and in others yet to be described. In particu­
lar, a determination that the amount of employee benefits 
in any form must be identical for both sexes would have 
a dramatic impact.

It should be made clear that whatever decision may 
be made concerning the permissibility of taking sex into

15 Note 18, infra, provides a possible explanation for the origin 
of this type of plan.

468



19

account in fixing the contributions or the benefits under 
a defined benefit plan, actuaries must be able to continue 
to take the sex of employees into account in connection 
with their determination of what probable costs must be 
borne by the employers under such plans.1'8 The actual 
cost, of course, will be determined by what is in fact 
paid, the expenses of administration, and the earnings 
rate. The job of the actuary is to help the employer 
make an accurate estimate of how much should be con­
tributed annually, without imposing an excessive strain 
in any given year, in order to produce an amount suf- 
cient to pay all of the promised benefits. In determining 
what contributions should be made, the actuary must 
take account of the expected experience concerning mor­
tality, disability, turnover, salary increases and other 
factors which studies have shown differ by sex. If the 
actuary does not do so, the determinations will be less ac­
curate, and we can hardly believe that any provision of 
law requiring non-discrimination among persons will be 
interpreted to prohibit an employer that would like to 
have as accurate information as possible from obtaining 
it from a person who is able to provide it.

3. Insurance contract plans. Some plans are funded 
exclusively with individual insurance and annuity con­
tracts with level annual premiums. If such plans meet 
the requirements of Section 301(b) of the Employee 
Retirement Income Security Act of 1974 (“ERISA” ),17 
they are known as “insurance contract plans,” For in­
surance contract plans and certain other insured plans,

, Sinec defined benefit plans provide primarily for the benefits
at will be payable, it is not necessary, as it is under a defined 

contribution plan, to establish individual accounts or to make con­
nections for individual employees, so that the question of whether 
equal contributions are being made for male and female employees,

1 e an appropriate one to ask, does not have as evident an answer.

1975)>Ub' L' 93'406’ 88 Stat- 829’ 29 U.S.C. § 1081 (b) (Supp. V

469



20

any general requirement that contributions must always 
be equal or that benefits for persons of different sexes 
must be identical rather than actuarilly equivalent would 
create far more difficult problems than those generally 
faced by other plans. To the extent that only some of the 
existing practices are invalidated and others found to be 
acceptable, the difficulties, of course, would be corres­
pondingly reduced.

The reason for the greater difficulty arises from the fact 
that under insurance contract plans and some other in­
sured plans the obligation to pay pension benefits has been 
transferred from the employer or the plan to the insurance 
company, and the insurance company’s contractual obli­
gations run directly to the individual employees. Those 
contractual obligations are normally cast in terms that 
provide for actuarial equivalence, if an employee elects 
to change the form of the benefits. If only numer­
ically equal payments are to be deemed to be satisfac­
tory, that is, if males and females must be entitled to 
the same monthly or other periodic payment, or alterna­
tively to the same lump-sum payment, and if such a de­
cision is made retroactive, the result—in our carefully 
and thoroughly considered opinion—would be chaotic, 
if not impossible, under these insured plans. The re­
vision and adjustment of the existing relationships in­
volving millions of persons would be a monumental and 
very probably impossible task. Even if a decision of this 
kind were expressly given only prospective effect, com­
pliance by insurance contract plans would still present 
exceedingly difficult problems. The terms of the sale of 
annuity contracts and insurance policies by life insurance 
companies have not been directly or indirectly subject to 
Title VII of the Civil Rights Act of 1964, and, since an 
essential aspect of the insurance business involves setting 
charges at levels that are accurately related to the nature 
and extent of the risks involved, any ruling that creates

4 7 0



21

disparities between the amount and the cost of certain 
benefits would necessarily result in the most serious 
problems for insurance contract plans. We would not 
even attempt to predict, at this time, what the response 
of the industry would be to such a decision.

It has been widely suggested that classification on the 
basis of sex could satisfactorily be eliminated in future 
contracts by prohibiting life insurance companies from 
making different charges for lifetime annuities to men 
and women despite the longevity differences that the two 
groups display. This would be accomplished by combining 
the experience of men and women and constructing a 
single “unisex” mortality table. Whether this would be 
an acceptable solution is a matter that is exceedingly 
complex, and an accurate explanation of the problems 
that would be created and the manner in which they 
might be solved would require careful and detailed 
analysis at least as lengthy as that already set forth in 
this brief. The problems are related but in many re­
spects are quite different. The question of the extent 
to which adverse selection would result is one that par­
ticularly requires examination and analysis of the actual 
numbers that are involved. In order to avoid extending 
unduly the length of this brief, we shall not undertake 
to discuss any of those problems here. In fact, there is 
no legislation currently pending to require the adoption 
of unisex tables by all life insurance companies. If such 
a requirement were imposed upon some but not all in­
surers, the competitive impact would be most severe. In 
the circumstances it seems advisable to deal with the 
situation as it exists today and not to treat with prob- 
ems that might arise if hypothetical changes were to be 
aiade in federal or state law.

It is important to note, however, that in some respects
e purchase of insurance or annuities offers greater 

a vantages to employers that have relatively few em­

4 7 1



22

ployees than to large employers, although some of the 
country’s largest corporations have adopted insured fund­
ing for a variety of reasons. The probability that the 
mortality experience of a relatively small group of per­
sons will diverge from what is anticipated is very 
much greater than it is for a large group of persons. 
For a smaller pension plan the purchase of annuities 
for retired members may provide greater assurance that 
the promised pensions will actually be paid, no matter 
how long the pensioners live. The burden of any major 
change resulting from the prohibition of risk classifi­
cation by sex is thus more likely to fall more heavily 
upon smaller employers than upon larger employers. 
Many small employers currently use insured rather than 
trusteed plans.

In some respects a given pension plan may present a 
greater appearance of unwarranted discrimination if it 
is an insurance contract plan. A trusteed non-contribu­
tory defined benefit plan that provides only equal pen­
sion benefits will require, as we have pointed out, a de­
termination of the amounts that must be contributed 
annually to provide proper funding. These amounts 
are not allocated to any particular employees; all that 
is readily observable is the total amount contributed 
each year. If the plan were one established by an em­
ployer with relatively few employees it might be funded 
by the purchase, for each employee, of individual re­
tirement income or annuity contracts. The aggregate 
contribution might be about the same as under the 
trusteed plan but it would be made up of contributions 
under separate contracts, the amount of which would be 
larger for female employees than for identically situated 
male employees. Thus it would be easier to raise the 
question of compliance with Title VII because the em­
ployer seems plainly to be making larger aggregate pay­

472



23

ments for salary and pension benefits for female em­
ployees than for identically situated male employees.18

B. D efin ed  C o n tr ib u tio n  P la n s

It is extraordinarily rare for a defined contribution 
plan (except for the target benefit plans discussed at 
Part C) to provide that different contributions will be 
made for male and female employees who are otherwise 
similarly situated. And, since these plans do provide 
that separate contributions shall be made for each em­
ployee which will be accumulated and used to provide 
the benefits for that particular employee upon his or her 
retirement, the issue of discrimination on the basis of 
sex would not seem even to arise. Indeed it does not 
arise for a plan that provides benefits only in the form 
of a lump sum or in the form of installments over a 
stated period of years. Under such a plan there is no 
pooling of risks. This is true Whether the plan is in­
sured or non-insured, and in either case there is no 
necessity for classification on the basis of sex. Where, 
however, the plan does provide for a form of benefit that 
involves life contingencies, the issue arises. This wTould 
occur if a lifetime annuity were to be offered as an al­
ternative to, or instead of, the payment of benefits in a 
lump sum.

Providing the option of life annuity payments plays 
an important role in meeting the needs for an adequate

18 It may be of interest to know how plans of the type in the case 
St bar came to be adopted. When state and local governments first 
began to adopt retirement plans for their employees, it was quite 
common for a decision to be reached that they should be provided for 
by equal contributions by the employer and the employee. Since the 
cost of funding pensions for female employees who remained to 
normal retirement was higher than for similarly situated male em­
ployees, and since half the amount was paid by the employee and
a>f by the employer, higher contributions were required for female 

employees. This practice has become less common over time and is 
now quite rare.

473



24

retirement income for employees. If the individual re­
tiree receives his or her account balance as a lump-sum 
payment, the retiree may spend it all before death and 
spend his or her final years in poverty. Similarly, if 
the retiree elects installments for a fixed period of years, 
even if that period equals the life expectancy, the re­
tiree may outlive the payments and have no income in 
later years. Guaranteeing payments for life, or as long 
as either the retiree or spouse lives under a joint and 
survivor annuity, provides an important social role in 
meeting the needs of retired people.

If it were not allowable to apply the account balance 
to purchase annuities unless identical monthly benefits 
were paid to both males and females, employers that 
had adopted insurance contract plans could not supply 
the annuities. Their only currently available alternative 
would be to eliminate entirely the option to obtain life 
annuity payments and require all participants to take 
their distribution in a lump-sum payment or in in­
stallments not guaranteed to last for life.

Some defined contribution plans do not allow payment 
of the account balance as a lump-sum payment, but re­
quire that it be applied instead to provide only for a life­
time income or for a choice among several types of 
annuities, each involving life contingencies. The latter 
type of plan is not common, but it is used by many col­
leges and universities and by many non-profit health and 
welfare agencies. Under a defined contribution plan the 
value of the plan benefit is equal to whatever dollar 
amount is credited to the employee’s account on the date 
of retirement. In a plan that provides only for annuity 
benefits, the question is how that value is to be law­
fully converted into installment lifetime payments of 
the “correct” amount, in order to comply with Title VII 
of the Civil Rights Act of 1964.

474



25

Since every insurance company offers to provide an­
nuities in amounts that are different for men and women 
if an identical single purchase payment is made, the 
issue arises whether the use of two identical account 
balances to provide unequal installment payments for 
men and women constitutes an unacceptable discrimina­
tion on the basis of sex. If it were to be held that, under 
Title VII, a plan may lawfully provide for an election 
between identical lump-sum benefits for men and women 
and monthly installment payments for life that are 
higher for men than for women, then, in our view, it 
would be thoroughly inconsistent to hold that a plan that 
provides only the differing monthly lifetime benefits vio­
lates the Act. The cost and the value of the benefits 
provided by both plans are the same. If both types of 
plan were held to violate the Act, this could only mean 
that plans of this kind would simply have to be aban­
doned, with the probable result that employees, male and 
female, who would otherwise be covered by such plans 
would have to look elsewhere for their retirement incomes.

Some plans provide for part of the equal contributions 
made for men and women to be used for the purchase of 
life insurance. (App. A, p. A-5.) Virtually all major insur­
ance companies charge lower life insurance premiums for 
females than for males. If a male employee and a female 
employee for whom the same annual contribution is being 
made each chooses to have an identical portion of that 
contribution used for the purchase of life insurance, the 
female employee will be provided with a larger face 
amount of insurance. If she survives to retirement, the 
insurance policy will probably have a larger cash sur­
render value than the policy purchased for the man, while 
the rest of their accounts will be identical. Thus, the 
female employee will receive a higher benefit than a male 
employee if both elect a lump sum, although the man wall 
still be given higher monthly lifetime payments if this 
form is elected. Similarly, if the two employees should

475



26

each choose to have an identical amount of life insurance 
purchased for them, the woman would probably receive a 
larger total lump sum benefit upon retirement.

The question in either case is whether this would con­
stitute a violation of Title VII and, if so, whether it 
discriminates unfairly against men or against women, 
The only method for an employer to eliminate such dif­
ferences by sex would be to provide only a lump-sum bene­
fit or to find an insurance company which uses the same 
premiums for both sexes. This would probably reduce the 
benefits available for females without increasing the 
benefits for males, a result contrary to the interests of 
participants.

The problems that might arise under a contributory 
defined contribution plan in this connection are the 
same as those problems that arise under a non-contribu­
tory plan.

C. Target Benefit Plans
There are retirement plans which have some aspects 

of a defined benefit and some aspects of a defined contri­
bution plan, the principal one of which is known as a 
target benefit plan. (App. A, p. A-5.) These plans 
have as a goal a specified defined benefit and employ 
actuarial computations to determine what the contribu­
tion should be to provide that benefit. On the other hand, 
as is the case with defined contribution plans, individual 
accounts are established which are then used for each 
employee to provide benefits which may or may not be 
approximately equal to the original objective. Some tar­
get benefit plans take the sex of employees into ac­
count in determining the contribution levels and others 
do not. Inevitably, those plans which take sex differences 
into account result in higher employer contributions for 
the class of female employees than for the class of male 
employees to the extent other factors are equal, and the

476



27

lump-sum payment available at retirement is therefore 
higher for females than for males, although if an an­
nuity is purchased the amount of the installment pay­
ments might be more or less for females than for males.

On the other hand, if sex differences are not taken 
into account in determining the contribution levels, then 
the contributions are equal for both sexes, the lump­
sum amount available upon retirement is identical, and 
the target benefit will necessarily not be reached in both 
cases since the monthly installment payment that can be 
provided with the identical balances will be lower for 
women than for men. Here again the question arises 
whether one or the other of these approaches is required 
by the provisions of Title VII and, if so, which one it is.

III. The Intent of Congress

We stated earlier that we would leave to others the 
conventional analysis of the legal materials that may 
bear upon the decision of this case. Here we depart 
slightly from that commitment to refer briefly to one 
action of the Congress that occurred well after the en­
actment of the Civil Rights Act of 1964.

So far as the views of the Congress which adopted the 
1964 Act are concerned, we think it reasonably clear 
that neither the members of that Congress nor the mem­
bers of the committee that drafted and considered the 
legislation ever focused in any meaningful way upon what 
was meant by the meaning of the term “discrimination” 
in this intricate context. There does not seem to have 
been even scant consideration, when that Act was adopted, 
of the extent and the manner to which classification on 
the basis of sex had been previously employed in con­
nection with the determination of contributions and bene­
fit levels for employee retirement plans and to what ex­
tent, if any, then current practices might have to be 
modified as the result of passage of the Act.

477



28

Ten years later, in the Employee Retirement Income 
Security Act of 1974, Congress established minimum 
amounts that must be paid to participants under defined 
benefit plans who terminate their employment prior to 
retirement. The terminology employed speaks of the 
“accrued” benefit which the employee must receive. Sec­
tion 204(b) (1) (F) states that, if a plan is funded ex­
clusively by the purchase of insurance contracts which 
satisfy the requirements of § 301(b) (2) and (3) of the 
Act, the requirement for a minimum payment will be 
satisfied by the payment to the employee of the cash 
surrender value of the insurance contract. In this in­
stance the members of the committee that drafted and 
considered the legislation were quite knowledgeable about 
the subject matter and did understand that the type of 
contract described in § 301 of the Act would provide 
cash surrender values for female employees that were 
higher than the corresponding values provided for male 
employees with identical employment histories, although 
we must point out that we know of no statement in the 
legislative history that reflects this understanding. One 
may speculate over whether the persons involved gave 
any thought at the time to the consistency of what they 
were then doing with the provisions of Title VII of the 
Civil Rights Act of 1964. There is no doubt, however, 
that they expressly auhorized the adoption and funding 
method of a plan that included provisions resulting in the 
payment of numerically unequal benefits to men and 
women upon termination of employment.19

19 The Pension Benefit Guaranty Corporation, the governmental 
agency which administers the plan termination insurance program 
under Title IV of ERISA, has issued regulations containing factors 
which must be used for allocations of pension plan assets under 
certain circumstances. These actuarial factors published by the 
Pension Benefit Guaranty Corporation vary by age and sex and 
result in more assets being allocated to provide benefits for a female 
than for a male. 41 Fed. Reg. 48484, 48489-91 (1976).

478



29

In a related context, on the other hand, the same statute 
includes a provision that indicates that the use of a 
“unisex” table is appropriate in certain circumstances, 
also related to the amount of accrued benefits under a 
contributory defined benefit plan. Under such a plan, 
the monthly benefit payable at retirement is usually un­
related to the amount of employee contributions. Thus 
a plan might provide for employee contributions of 4% 
of pay and monthly benefits at age 65 of 1 y2% of pay 
times years of service, and there is no need to determine 
upon retirement what portion of the benefit is regarded 
as having been derived from employee contributions and 
what portion is regarded as having been provided by 
employer contributions.

The portion of the employee’s accrued benefits which 
is derived from his own contributions is always 100% 
vested, while the portion derived from employer contribu­
tions is not usually vested before 10 years of service. 
If the employee terminates employment before the em­
ployer-derived benefit fully vested, ERISA requires the 
total accrued benefit to be divided into the employee-de­
rived portion and the employer-derived portion.210 The Act 
sets forth explicitly how this shall be done and, in de­
termining the employee-derived portion, requires the ac­
cumulated employee contributions to be multiplied by an 
appropriate actuarial conversion factor.21 The conver­
sion factor in the statute and supplemental factors pub­
lished by the Internal Revenue Service22 are unisex fac­
tors.  ̂A plan is permitted to use sex-differentiated fac­
tors if these result in a larger employee-derived benefit,

20 Employee Retirement Income Security Act of 1974, § 204(c), 29 
U.S.C. § 1054(c) (Supp, V 1975).

“ Employee Retirement Income Security Act of 1974, § 204(c)(2) 
W  (u), 29 U.S.C. § 1054(c) (2) (B ) (ii)  (Supp. V 1975).

22 Rev. Rule 76-47, 1976-1 I n t . Rev. Bull, a t  109.

479



30

and some plans have done so, but most contributory plans 
have adopted the unisex approach.

CONCLUSION

The foregoing discussion is illustrative rather than 
exhaustive; it is over-simplified and omits what we hope 
is only irrelevant detail. We should be glad to amplify 
it in any way if that should be thought helpful.

We believe that any sweeping decision that only nu­
merical identity is permissible in making contributions 
and in the payment of benefits would have a deeply dis­
turbing effect upon the current methods of providing re­
tirement benefits and might adversely affect millions of 
participants. We respectfully suggest that this Court 
render a decision that will not have widespread and un­
intended adverse effects.

Respectfully submitted,

Lawrence J. Latto
John  Parsons W heeler III 

734 Fifteenth  Street, N.W. 
W ashington, D.C. 20005 

A ttorneys fo r  Amici Curiae 
Society of Actuaries and 
the Am erican Academy of 
Actuaries

Of Counsel:

S hea & Gardner
734 15th Street, N.W.
W ashington, D.C. 20005

November 17,1977

480



A-l

A P P E N D IX  A

P R IN C IP A L  T Y P E S  A N D  F E A T U R E S  OF 
R E T IR E M E N T  P L A N S

Until the adoption of the Employee Retirement In­
come Security Act of 1974, the principal regulation of 
retirement plans by the federal government arose out 
of the necessity for such plans to meet the require­
ments for “qualification” under § 401 of the Internal 
Revenue Code. Contributions made by an employer are 
deductible in the year in which made if the plans are 
“qualified,” while the employees are taxed, not in that 
year but in the year in which their benefits are received. 
In addition, the earnings on the accumulated contribu­
tions are not taxable.

One of the more significant requirements for qualifica­
tion is that the plan must be non-discriminatory, that is, 
that the plan may not explicitly by its terms, or in prac­
tice, provide more desirable pensions for officers, share­
holders, and highly compensated employees than it does 
for other classes of employees. The regulations adopted 
to insure that this requirement is met are often quite 
complex, but prior to ERISA, plan sponsors (employers 
and joint boards of trustees) had broad flexibility with 
respect to the design of such retirement plans, more 
specifically with respect to the nature and amount of 
benefits to be provided, contribution formulas to be em­
ployed, eligibility requirements and vesting provisions, 
and the inclusion of a wide variety of optional features.1 
Since the effective date of ERISA many more substan­
tive requirements must now be met, but the freedom of 
the plan sponsor to fashion the terms of the plan still 
remains very broad. In consequence it is not possible

In many cases, of course, the terms of the plan were the subject 
0 collective bargaining between the employer and union repre­
sentatives.

481



A -2

within reasonable page limitations to provide a com­
prehensive or exhaustive account of the great variety of 
provisions found in retirement plans and of the number 
and kind of individual variations. With this qualification, 
however, we can describe the major categories into which 
such plans can be divided and describe in adequate de­
tail the major features that are relevant to the issues 
before the Court.2 There are so many different kinds of 
plans and so many diverse features, that there are likely 
always to be exceptions to any unqualified general state­
ments in this area.

A. Defined Benefit Plans

A defined benefit plan, as the name implies, promises 
a benefit that is determinable by the use of a stated 
formula set forth in the plan. Typical examples might 
be: (1) an annual pension equal to 2% of the sum of 
the annual amounts earned in each year of employment; 
(2) 1%% of the final year’s earnings multiplied by the 
number of years of employment; (3) 2% of the average 
earnings during the last five years of employment multi­
plied by the number of years of employment; and (4) 
$20 per month for each year of employment without ref­
erence to the amount earned. Thus, for these plans, while 
the exact amount of any person’s pension cannot be known 
until retirement, the manner in which it will be deter­
mined is known in advance. Defined benefit plans gen­
erally provide the same annual pensions for retiring men 
and women who retire at the same age with identical 
employment histories.

An important requirement added by ERISA in 1914 
is that a plan which provides for a pension that is pay­
able for the lifetime of the employee must also provide

2 The Bankers Trust Company of New York periodically publishes 
studies of the retirement plans of large United States corporations 
which include useful information not available elsewhere.

482



A-3

that for married employees, in the absence of an election 
by the employee to the contrary, payments must continue 
until the deaths of both the employee and his or her 
spouse.

A defined benefit plan may provide that all of the costs 
of providing the benefits will be borne by the employer, 
and it may also provide for some part of the cost to be 
borne by contributions by the employees. A substantial 
minority of defined benefit plans includes such a require­
ment. Usually the portion provided by the employees is 
less than the amount contributed by the employer. Prob­
ably the largest plan of this kind is that provided by 
the federal government for its Civil Service employees. 
A contributory plan will contain provisions for the re­
turn, at a minimum, of the employee’s contributions plus 
interest if his or her employment is terminated before 
the anticipated retirement age. Usually the benefits pay­
able upon retirement do not depend upon how the funds 
held by the plan are invested or whether the investment 
results are good or bad.

Defined benefit plans often provide that the amount of 
the pension will be offset by all or part of the benefits 
payable under the Social Security system. For example, 
the plan might provide that the amount of the pension at 
agê  65 shall be reduced by 50 % of the amount of the 
Social Security benefit. Defined benefit plans may pro­
vide, and ordinarily do provide, for elections by the re­
tiring employee with respect to the form in which the 
benefits shall be paid, i.e., (a) in a monthly amount pay­
able over the lifetime of the employee, (b) in a monthly 
amount payable over the lifetime of the employee but 
with a minimum of payments for a 10-year period, (c) 
ln a monthly amount over a stated number of years, or

; in a lump sum. The plan may provide for earlier 
retirement than the “normal retirement age” or for de- 
erred retirement. In each case the plan will provide

483



A -4

whether and how the benefits will be affected by these 
elections and events.

B. Defined Contribution Plans

Defined contribution plans focus initially upon the 
amount of contributions rather than the determination 
of benefits. They provide for contributions on behalf of 
each employee. Under some plans of this type, known 
as money purchase pension plans, the contribution for 
each employee is defined, often in terms of a stated 
percentage of annual salary. For other plans of this type, 
known as profit-sharing plans, the amount of the em­
ployer’s contribution for each year may be determined 
by reference to a formula related to profits, or may be 
entirely at the employer’s discretion. This amount is 
then allocated to each of the employees by a stated 
formula ordinarily in proportion to annual compensation. 
Under such a plan, it is quite possible that in some years 
no contribution at all will be made.

Under a defined contribution plan, individual accounts 
are kept for each employee during the period while he 
or she is still working, and an amount is credited an­
nually to each of those individual accounts. The funds 
are invested and the earnings or the losses serve to in­
crease or decrease the amount in the account. Since the 
amount in each individual employee’s account is used 
to provide benefits for that employee upon retirement, 
the investment experience affects quite significantly the 
amount of the benefits that will be received. Defined 
contribution plans may or may not provide for employee 
contributions. In one type of defined contribution plan, 
the “thrift” or “savings” plan, the amount of the em­
ployer’s contribution is determined by the amount of the 
employee’s contribution, and each employee may elect 
whether to participate in the plan at all.

484



A -5

A plan may provide that part of the contributions will 
be used to purchase life insurance payable to designated 
beneficiaries if the employee should die prior to retire­
ment and for the use of the cash surrender value under 
these life insurance policies to supplement the amounts 
in the employee’s account to provide retirement benefits.

As is the case under defined benefit plans, the benefits 
may be in the form of a lump sum or installment pay­
ments over a designated period, or the plan may provide 
for the purchase of an annuity payable over the lifetime 
of the employee. Variations in the form of annuities are 
also often available. The annuity may be purchased at 
the date of retirement, or through installment payments 
to an insurance company while the employee is still ac­
tively employed. The plan may include provision for 
early retirement or for withdrawal of all or part of the 
account prior to retirement but, unlike the case with de­
fined benefit plans, there is no need to provide how the 
amount of the benefit will vary depending upon what 
form of benefit is chosen by the employee or the date on 
which benefits are taken or commenced. The employee 
will receive benefits equivalent in value to what is credited 
to his or her account.

C. Other Types of Plans

There are some plans that do not fall comfortably into 
one or the other of these two categories. A target benefit 
Plan is a special type of defined contribution plan. Such 
a plan̂  employs a formula which establishes a “target 
enefit that the employer desires to provide. That might 
e, for example, 1 % of the employee’s final year’s salary 

mu ^Phed by the number of years of employment. A 
computation is then made of the amount of annual con- 
n ution needed to provide the target benefit, and these 

con nbutions are then made by the employer and em- 
°yees. Unlike the case under defined benefit plans, how­

485



A -6

ever, these contributions are then allocated to individual 
accounts for each employee, and the plan is then ad­
ministered as a defined contribution plan. That is, the 
amount of the target benefit is not guaranteed by the 
employer or by the plan, and the employee receives what­
ever benefit can be provided with the amount in this 
account. This may be more or less than the target bene­
fit, depending upon whether the rate of actual investment 
income has been equal to the rate assumed in the de­
termination of the contributions that were made, and 
upon other factors. Some plans take the sex of the em­
ployee into account when determining what annual con­
tributions shall be made, and some do not.

In some industries collective-bargained multi-employer 
plans have been established that accumulate the contri­
butions of several employers and provide retirement 
credits to persons who may work for one or more of them 
over their working lives. These plans also do not fit easily 
into one or the other of the two major categories, and 
there is currently pending an active dispute over whether 
they should be treated for certain purposes as defined 
benefit or defined contribution plans.

Since 1962, self-employed persons have been able to 
establish tax favored plans for themselves and their em­
ployees, and,. for the most part, these plans have been 
defined contribution plans, although it is quite feasible 
for a partnership with many partners to adopt a defined 
benefit plan, and several large law and accounting firms 
have done so.

A special type of plan known as a tax deferred an­
nuity plan may be established by a public educational 
institution or by a charitable organization for its em­
ployees, and these plans are provided favorable tax treat­
ment similar to that available to qualified plans. The con­
tributions are nominally and sometimes actually made by 
the employers, but in most cases they are derived from

486



A -7

reductions in salary voluntarily agreed to by the em­
ployees. These plans are invariably defined contribution 
plans.

Finally, since 1974 individuals who are not self-em­
ployed but are not covered under employer established 
retirement plans may establish individual retirement 
plans of their own, and these are also and necessarily 
defined contribution plans.

D. The Funding and Administration of Retirement Plans
Another important method of categorizing retirement 

plans, and one which is highly relevant to the issues in 
this case, relates to how and by whom the plans are 
administered. All retirement plans may be divided into 
insured plans or non-insured trusteed plans, although 
many plans use a combination of these two approaches. 
Both defined benefit plans and defined contribution plans 
may be either trusteed or insured. Under a trusteed plan, 
the employer makes annual contributions to a trustee, 
which in the overwhelming number of cases is a bank or 
trust company although this is not required by law. 
Those amounts are held and invested by the trustee and 
used to pay the employee benefits provided by the plan.

Under an insured plan, the employer enters into a 
contract with an insurance company (ordinarily a group 
annuity contract and sometimes individual insurance or 
annuity contracts for each employee). The employer 
pays contributions (also called premiums) to the insur­
ance company which holds and invests the funds and 
agrees to disburse them for the purpose of paying the 
promised benefits to the employees in the manner pro­
vided by the plan and the contract. In many cases the 
insurance company will assume a contractual liability
irectly to the employees, sometimes upon the retirement 

0 each employee and sometimes at an earlier date, to

487



A -8

assume the employer’s obligations to pay the plan benefits, 
If this is done, the relationships that are created are 
quite different from those under a trusteed plan, where 
the trustee agrees only to use the funds held in the 
trust to pay the benefits and does not assume an inde­
pendent obligation—as an insurance company does under 
many insured plans—to continue to pay benefits whether 
the amounts contributed by the employer turn out to he 
more or less than required for that purpose.

An employer that has adopted a trusteed plan may de­
cide to direct the trustee to provide some or all of the 
promised pensions by purchasing annuities from an in­
surance company as the employees retire. In that case, 
the plan will in fact be pro tanto an insured plan, but 
it will usually continue to be spoken of as a trusteed 
plan.

488



B-l

A P P E N D IX  B

F E M A L E  A N D  M A LE L O N G E V IT Y  

I. The Observed D ata

Women have lived longer than men both in the United 
States and throughout the world. U.S. Census Bureau,1 
Social Security Administration,1 2 and United Nations3 4 ref­
erences support this observation. Swedish records re­
count the observation as early as 1780.“ Longevity ex­
perience among insureds has been recorded by the So­
ciety of Actuaries or its predecessors since 1892. The 
tables of the Society have consistently shown higher fe­
male longevity, for both women working inside and out­
side the home.5 Thirty year-old women are observed to 
live 6.2 years, on the average, longer than their male

1U.S. De pt , of H e a l t h , E ducation, and  W elfare, P ublic 
Health Service, N ational Cen t e r  for H ea lth  Statistics , V ital 
Statistics of t h e  U n ited  States 1971, Vol. II, Pt. A, § 5 at 7-10
(1975).

2Bayo, M orta lity  o f th e  A g ed , 24 T ra nsactions , Society of 
Actuaries, Pt. 1 at 1-24 (1972).

3 United Nations, Demographic Yearbook 700-26 (23d ed. 1971).

4N. Keyfitz & W. F lieger, W orld P o pu la tio n : A n  A n alysis 
of Vital Data 604-39 (1968).

5 M’Clintock, Specia l Tables fo r  th e  E s tim a tio n  o f M o r ta lity  
A m o n g  A n nu itan ts, 6 T ra nsa ctio ns  of t h e  A ctuarial Society of 
America, 13, 22-23 (1900). With regard to both women working 
inside and outside the home, greater longevity is shown by life  ex­
pectancies calculated from data in Peterson, G roup A n n u ity  M orta l­
ity, 4 Transactions, Society of A ctuaries 246, 262-67 (1952). This 
was confirmed by calculations of life expectancies from data in 
Greenlee & Keh, The 1971 G roup A n n u ity  M o rta lity  Table, 23 T ra n s­
actions, Society of A ctuaries, Pt. 1 at 569, 583-96 (1972) (herein­
after cited as 1971 G roup A n n u ity  T a b le ) . Analysis of current data 
as to populations that include both women working inside and out­
side the home also show greater female longevity. R ep o rt o f the  
Committee on Group A n n u itie s , G roup A n n u ity  M o rta lity  in T r a n s­
actions, Society of A ctuaries, 1975 R eports 287/289-316 (1976).

489



B-2

counterparts, 50 year-old women live 5.7 years longer, 
and 65 year-old women live 4.1 years longer.'6 This 
observed data, as recorded by actuaries, is used as the 
best available predictor for the longevity of groups of 
persons insured under pension plans of employers.

II . T he R eason s fo r  G reater F em ale  L on gev ity

Two principal factors have been suggested as explana­
tions for greater female longevity: the biological factor 
and social and economic factor’s. We include a brief 
summary of part of that discussion, not because we be­
lieve it relevant to the issues in this case—a matter about 
which there is a difference of opinion—but because it 
may be of interest to the Court.

Amram S'cheinfeld’s book, Your Heredity and Environ­
ment (1965), discusses the question of biological factors. 
At pages 217-21 he asserts that bodily makeup and 
chemical functioning differ between women and men, 
and that these differences give women advantages in re­
sisting or overcoming most diseases. He also observes 
that when male and female infants suffer the same acci­
dents, the chances for death are greater for the males. 
As a reason for the longevity difference, he suggests that 
females originate with two X chromosomes and males 
originate with only one. If a female inherits an X 
chromosome that includes a recessive gene, a normal 
gene in the other X chromosome can compensate; males

6 Calculated from 1971 Group Annuity Table, supra, note 5 at 585- 
96. The insurance tables for persons insured under individual 
annuity contracts also show similar results: life expectancies for 
females are 5 years more at 30, 4.4 more at 50, and 2,9 more at 65. 
Calculated from data in Cherry, The 1971 Individual Annuity Mor­
tality Table, 23 Transactions, Society op Actuaries, Pt. 1 at 475, 
496-99 (1972). The group and individual mortalities differ because 
of the different populations that are covered by the two types of an­
nuities. However, both exhibit a longer female longevity. Under 
individual annuities longer female longevity was also exhibited in 
life expectancies calculated from earlier data in Jenkins & Lew, 
A New Mortality Basis for Annuities, 1  T R A N S A C T IO N S , SOCIETY OP

490



B -3

have no such compensating possibility. He cites as some 
evidence for his view the observation that in poultry, 
where the chromosome pattern is reversed, embryonic 
deaths are much higher among females. He writes that, 
since such factors as childbearing have become less hazard­
ous, and as the habits and ways of living of both sexes 
have become more similar, “wider like conditions, females 
are better adapted to cope with most human afflictions 
because they are genetically better constructed and have a 
more efficient chemical system.” (Emphasis in original.)

Additional literature bearing on female longevity re­
lates to prostaglandins, which effect the output and con- 
tractibility of the heart and tension in blood vessels. 
Women produce significantly less of this substance than 
men, and the substance is said by some to affect, in the 
greatest degree, the bodily functions associated with the 
causes of death that account for most of the variation in 
mortality by sex.7

One feature of the observed data warrants separate 
mention: it appears that, even during the present period 
when more women are entering work outside the home, 
the longevity advantage of women over men is in­
creasing. One study indicates that since 1920 the overall 
ratio of male to female mortality has increased by over 
60%.8 The reasons for this apparent trend are not clear.

Actuaries 369, 386-89 (1949); C urren t data  under individual 
annuity contracts also confirm th is. Mortality Differentials by Sex, 
in Transactions, Society of Actuaries, 1973 Reports 225, 228 
(1974).

io«f u?erS ̂  Non-Insured Pensioner Mortality, The UP-
4 Table, 25 P roceedings, Conference of Actuaries in  P ublic
CTicE 456, 468-69 (1976). See also Metropolitan Life Insurance 

Differentials in Mortality, 55 Statistical Bulletin 2, 5 (Aug. 1974),

Metropolitan Life Insurance Co., Sex Differentials in Mortality 
52 Statistical Bulletin 2, 3 (Dec. 1971). See also Mor- 

m / r i  e m **"<*  by  S e x > in Transactions, Society of Actuaries, 
eports 225 (1974); Metropolitan Life Insurance Co., Sex Dif-

491



B-4

A possible explanation is that recently expressed by 
Barbara J. Lautzenheiser, Vice President and Actuary, 
Bankers Life Insurance Company of Nebraska:

. . as socio-economic conditions of the sexes are 
equalized, the biological differences are more ap­
parent and the differences between mortality be­
come greater.” * 9 10 11

A factor lending some weight to this view is that peri­
natal mortality rates (stillbirths occurring beyond the 
20th week after conception and deaths in the first week of 
infancy) are over 20% higher for males.1® Such differ­
ences cannot be explained by other than biological dif­
ferences, and current data indicates that the differences 
may continue to widen.11

On the other side, it has been pointed out that past 
working experience of women has contained few high 
tension jobs, and with women entering more of these jobs 
it is contended that in due course the observed differences 
in longevity will either be reduced or be explained as at­
tributable to other causes.12

ferentials in Mortality, 55 Statistical Bulletin 2, 2-5 (Aug. 1974); 
Bayo & McKay, U.S. Population Projections for OASDHI Cost Esti­
mates, Actuarial Study N o. 72 at 10 (U.S. Department of Health, 
Education and Welfare, Social Security Adm., Ofc. of the Actuary, 
July 1974).

9 Lautzenheiser, Sex and the Single Table: Equal Monthly Retire­
ment Income for the Sexes?, 2 E mployee Benefits J ournal, No. 1 
at 8, 12 (Fall 1976).

10 Metropolitan Life Insurance Co., Reduction in Perinatal Mor­
tality, 43 Statistical Bulletin 6, 7 (May 1962).

11 See, e.g., “Fewer Heart Disease Deaths,” Wall St. J., July 26, 
1977, at 1, col. 3 (decline in heart disease projected by the Census 
Bureau to prolong women’s lives by 4 years and men’s lives by 3 
years by next century).

12 Note, Sex Discrimination and Sex-Based Mortality Tables, 53 
B.U. L. Rev. 624 n.2 (1973).

492



In the

&uprmp (Emtrt of %  United States
October Term 1977

No. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF 
WATER AND POWER, et al„

Petitioners,
v.

MARIE MANHART, et al.,
Respondents.

On Writ of Certiorari to the U nited States 
Court of A ppeals for the N inth Circuit

brief OF TEACHERS INSURANCE AND ANNUITY  
ASSOCIATION OF AMERICA AND COLLEGE 

RETIREMENT EQUITIES FUND, AS A M I C I  

C U R I A E ,  IN SUPPORT OF PETITIONERS

William  R. Glendon 
200 Park Avenue 
New York, New York 10017

Attorney for Teachers Insurance 
and Annuity Association of 
America and College Retire­
ment Equities Fund

Of Counsel:
James B. Weidner 
James W. Paul 

Rogers & Wells 
200 Park Avenue 
New York, New York 10017

493





TABLE OF CONTENTS

PAGE

Table of Au th o r it ie s ..................................................  ii
Preliminary St a t e m e n t .............................................. 1
Interest of the A m i c i ..................................................  2
Retirement Income and the Annuity Principle .

(a) The Annuity P rincip le.....................................
(b) Risk Classification and E quity ..........................  5
(c) Cost Im pact......................................................... 7

The Decision Be l o w ....................................................  8
Summary of Ar g u m e n t ........................................   \ \
Argument ......................................................................  13

I. Title VII Does Not Prohibit The Recognition 
Of Differences In Male-Female Longevity In 
The Computation Of Rates For Retirement 
Plans ....................................................................  13

H. The Bennett Amendment In Title VII Requires 
Application Of Equal Pay Act Standards To 
This Case And Those Standards Sanction The 
Recognition Of Differences In Male-Female 
Longevity In Computing Rates For Retirement
Plans .........................................   27
A. The Bennett Amendm ent............................  28
B. The Equal Pay Act .....................................  32

1. Legislative History ................................. 33
2. Administrative Interpretations .............  35

C. EEOC Guidelines.......................................... 40
D. Effect of General Electric Co. v. Gilbert. . . 45

Conclusion ................................................. 4g

Addendum A
Tables 1-4 

Addendum B
Equal Empl°yment Opportunity Commission v. 

X°lby College, et al, No. 75-136 SD (D. Me., 
Oct. 27, 1977)

495

4^
 

4^



11

CASES

PACE
Calijano v. Goldfarb, 430 U.S. 199 (1 9 7 7 ) .......... 18,25
Craig v. Boren, 429 U.S. 190 (1976) . ...................... 18
Equal Employment Opportunity Commission V . Colby 

College, et al, No. 75-136 SD (D. Me., Oct. 27,
1977) ..................................................................... passim

Espinozav. Farah Mfg. Co., Inc., 414 U.S. 86 (1973) 45
Fleming v. Nestor, 363 U.S. 603 (1960) ................... 25
Geduldig v. Aiello, 417 U.S. 484 (1974) . . . .  14, 15,20
General Electric Co. v. Gilbert, 429 U.S. 125 

(1976) ....................................................................passim
Griggs v. Duke Power Co., 401 U.S. 424 (1971).. 14,15
International Bro. of Teamsters V. United States, 97 

S. Ct. 1843 (May 31, 1 9 7 7 ) ................................. 26,44
Manhart v. City of Los Angeles, Dept, of Water, 553 

F.2d 581 (9th Cir. 1976) ..................................... passim
Reedy. Reed, 404 U.S. 71 (1 9 7 1 ) .....................13,15,18
Stanton v. Stanton, 421 U.S. 7 (1975) .......................  18
Turner v. Dept, of Employment Security, 423 U.S. 44

(1975) ......................................................................  20
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). .24,25 

STATUTES

Employee Retirement Income Security Act of 1974,
P.L. 73-406, 88 Stat. 829 (1974) ....................... 2,40

N.Y. Ins. Law (McKinney) § 209 .............................  6
5U.S.C. § 553 (1 9 6 6 ) .................................................  55
26 U.S.C. § 7 2 ( c ) ( 3 ) ( A ) ........................................... 40
29 U.S.C. § 206(d)(1) ......................................... .. 33

4 9 6



Ill

42 U.S.C. §2000e-2(a)(1) .......................................... 13
42 U.S.C. § 2000e-2(h) ..............................................  3
42 U.S.C. § 2000e-12(a) ............................................  44

PAGE

ADMINISTRATIVE INTERPRETATIONS 
AND REGULATIONS

29 C.F.R. § 1604.7(b) ( 1 9 6 5 ) ...............................41,44
29 C.F.R. § 800.116(d) (1976) ............... 36 ,39,40,47
29 C.F.R. § 1604.8 (1976) .......................................  43
29 C.F.R. § 1604.9(f) (1976) ........................ ..........  43
29 C.F.R. § 800.151 (1966) .....................................  39
41 C.F.R. § 60-20.3(c) (1974) ................................. 37
45 C.F.R. § 86.56(b)(2) (1975) ............................... 37
Treas. Reg. § 1.72-9, T.D. 6233 (1 9 5 7 )............. .. 40
Wage and Hour Opinion Letter, No. 257, May 27,

1964; [1961-1966 Transfer Binder] Lab. L. Rep. 
(CCH) 5130,851 ......................................................... 35

Ŵ and Hour Opinion Letter, No. 336, Jan. 22,
1965; [1961-1966 Transfer Binder] Lab. L. Rep.
(CCH) 5130,945 ....................................................  . 36

Wage and Hour Opinion Letter, No. 1117 (WH-70), 
August 25, 1970; [1964-1973 Transfer Binder]
Lab. L. Rep. (CCH) 5}30,681 ............................... 32,38

Wage and Hour Opinion Letter, No. 1276 (WH-224),
April 26, 1973, Lab. L. Rep. (CCH) <|39,874 ___  38

Opinion Letter of EEOC General Counsel (Oct. 
i , ’ 1_965)> [1966] Empl. Prac. Guide (CCH) 
1117,252.09 ..........................    42

[19?3] EEOC Decisions (CCH) ^6300 ........................ 43
0pi f e  Letter of EEOC General Counsel (July 

1966), [1966] 401 F.E.P. Rep. (BNA) 3011-12 . . 4 2 497



IV

BILLS

H.R. 3861, 88th Cong., 1st Sess., § 4a (1963) . . . .  33
S. 882, 88th Cong., 1st Sess., § 4 (1963) ..............  33
H.R. 6060, 88th Cong., 1st Sess., 7 (1963) ..............  34
S. 1409, 88th Cong., 1st Sess., 6 (1 9 6 3 )................... 34

PAGE

OTHER AUTHORITIES

Berg, Equal Employment Opportunity Under the Civil 
Rights Act of 1964, 31 Brooklyn L. Rev. 62, at 76, 
n.26 (1964) ..............................................................  31

110 Cong. Rec. 13646 (1 9 6 4 ) .................................. 29
110 Cong. Rec. 13647 (1964) ..............................29,30
110 Cong. Rec. 13663-64 (1964) .............................. 29
111 Cong. Rec. 13359 (1965) ..................................  30
Ehrbar, Those Pensions Plans Are Even Weaker Than 

You Think, F o r t u n e , pp. 104-114, (Nov. 1977) 27
37 Fed. Reg. 6836 (1972) ........................................  44
41 Fed. Reg. 48484-91 (1976) .................................. 40
Hearings on H.R. 12272; May 8, 1972 ....................... 2
Lautzenheiser, Sex and the Single Table, Employee 

Benefits J. (Fall 1976) ............................................. 24
New York Times, Nov. 7, 1977, at 55, c . l ................  27
T. O’Donnell, History of Life Insurance In Its Forma­

tive Years, (1936) ...................................................  27
Opinion of Attorney General of the State of Washing­

ton (A.G.O. 1973, No. 21 (Oct. 11, 1973)) . . . .
Pub. Health Service, U.S. Dep’t of Health, Educ., and 

Welfare, Vital Statistics of the United States, Vol.
II, Part A, pp. 5-8 (1972) ..................................  6

U. S. Civil Service Com., Annual Report, 1974 ....  27
498



In t h e

iupmuf Court of %  United Staten
October Term 1977

No. 76-1810

--------- -------- f-----------------

City of L os A n g e l e s , D e p a r t m e n t  of 
W a t e r  a n d  P o w er , et al.,

Petitioners,
v.

M arie  M a n h a r t , et aL,
Respondents.

brief of t e a c h e r s  in s u r a n c e  a n d  a n n u it y
ASSOCIATION OF AMERICA AND COLLEGE

retir em en t  e q u it ie s  f u n d , a s  a m ic i
CURIAE, IN SUPPORT OF PETITIONERS

Preliminary Statement
By consent of all parties, Teachers Insurance and An­

nuity Association of America and College Retirement Equi­
ties Fund (“TIAA-CREF”) submit this brief as amici curiae 
m suPPort of petitioners. This brief points out: (a) the ad­
verse and discriminatory impact that would result if private 
insurers such as TIAA-CREF were required to ignore differ­
ences in male-female mortality rates, and (b) the inappro­
priate deference accorded by the majority below to an 
EEOC guideline relating to the same subject.

499



2

Interest of the Amici
The Carnegie Foundation for the Advancement of 

Teaching established TIAA in 1918 as a non-profit New 
York life insurance company. CREF was created in 1952 
by a special New York Act as a companion non-profit cor­
poration. TIAA and CREF were founded to offer retire­
ment and other fringe benefits plans suited to the needs of 
the teaching staffs and other employees of colleges and 
universities. Nearly 500,000 employees are covered by the 
system. Over 85 percent of all private four-year colleges 
and universities and over 40 percent of all public colleges 
and universities cover some or all of their personnel by 
TIAA-CREF annuity plans. A number of institutions have 
also adopted collective life insurance plans managed by 
TIAA-CREF, to complement the annuity plans. The TIAA- 
CREF system was cited as a model for recent Federal 
pension reform legislation.*

These retirement and insurance plans are normally 
established by board resolutions of the participating insti­
tutions, but there is no contract between TIAA or CREF 
and the employing institution. Each participating employee 
individually contracts directly with TIAA and/or CREF. 
Contributions are then made at equal rates by and on behalf 
of all similarly situated employees, regardless of sex. All 
similarly situated employees thus receive life insurance 
coverage and/or lifetime annuities, that have equal actuarial 
values.

^Employee Retirement Income Security Act of 1974 (“ERISA ). 
P.L. 73-406, 88 Stat. 829 (1974). Senator Jacob Javits, in testifying 
before the House Ways and Means Committee on this legislation' 
stated (Hearings on H.R. 12272, May 8, 1972):

“We need to learn something from the success of the College 
Teachers Retirement System—‘TIAA-CREF’—which wou 
be a real model for private industry. . . .”

500



3

The TIAA-CREF plans therefore differ significantly 
from the instant retirement plan as to employee contribu­
tions, the essential fact on which the majority below, upon 
rehearing, based its decision concerning the Bennett Amend­
ment. Unlike the plan here, greater contributions are not 
required in the TIAA-CREF system from employees of 
either sex. Accordingly, in this respect, the decision of the 
majority below has no application to the plans managed 
by TIAA-CREF, nor are we submitting this brief to address 
that question.

Our interest is two-fold. First, it has been argued that 
the decision of the majority below, requiring “individual­
ized” treatment while simultaneously conceding its impos­
sibility in an insurance context, means that an insurer such 
as TIAA-CREF purportedly violates Title VII whenever 
it takes into account acknowledged disparities in male- 
female longevity in computing its rates. Second, the ma­
jority of the Court below, misconstruing the import of the 
Bennett Amendment in Title VII (Civil Rights Act of 1964, 
§703(a)(1) 42 U.S.C. § 2000e-2(h)), inappropriately 
deferred to a recent guideline of the EEOC concerning 
retirement benefits, that has also been urged as supposedly 
applicable to plans managed by TIAA-CREF.

Indeed, there has been a continuing effort to apply the 
decisions of the court below concerning the municipal plan 
involved here to annuity plans of private insurers such as 
TIAA-CREF. See, e.g., Equal Employment Opportunity 
Commission v. Colby College, et al., No. 75-136 SD (D. 
Me., October 27, 1977) one of six litigations now pending 
in this country against educational institutions and TIAA- 
CREF.* Like all insurers issuing individual contracts, 
TIAA-CREF take the differing male-female longevity into

Because of its applicability to the issues here and because it is as 
r ) ,unIfPorted, we have included Judge Gignoux’ opinion in the 
oby College case as Addendum B hereto.

501



4

account in computing life insurance and annuity benefit 
rates, because, as private insurers, they must accord equi­
table treatment to all of their participants and ensure the 
financial integrity of their plans.

The implications of proscribing recognition of those 
differentials in private insurance and annuities would be 
enormous; substantial questions as to financial integrity 
would arise and real inequalities would be created where 
none exists now. At a minimum, in the TIAA-CREF system 
alone, it would unnecessarily and improperly impose tens o£ 
millions of dollars of added costs upon the already strained 
resources of higher education. And it would unfairly cause 
increases in the costs of annuities and life insurance respec­
tively for the millions of policy holders, male and female, 
throughout the country, and could well involve increased 
costs for the entire pension industry.

Retirement Income and the Annuity Principle
Although this case relates to fundamental insurance 

and annuity concepts, the courts below seemingly gave 
almost no consideration to them. Because such concepts, 
we submit, are basic to any discussion of this subject, let 
alone to any determination relating thereto, we set forth 
the following summary of those concepts as they relate 
to the lifetime pension benefits involved in this case.

(a )  The Annuity Principle

The purpose of a pension plan providing lifetime bene­
fits is to ensure that a retiree will receive an income through­
out his or her life, an income that cannot be outlived. In 
essence, it is the reverse of life insurance—the pension 
income protects people against the financial risk of “living 
too long.” In order to make such a plan financially viable, 
its actuary must know at the outset the extent of the plan’s 
obligations, i.e., how long benefits are expected to be paid.

502



5

The extent of the life span to be covered is obviously 
a basic element in this computation. But no one can 
predict how long a particular person will live after retiring. 
Thus, the plan’s actuary must determine the cost of com­
mitting the plan to a rate of payments for life, without then 
knowing, or being able to determine in advance, the length 
of time for which payments will have to be made to any 
particular retiree.

By combining the risk applicable to a large enough 
number of persons, however, the actuary, by applying the 
law of large numbers, can make the necessary prediction 
on the basis of statistical fact. The rates at which funds 
must be accumulated in order to pay benefits to all retirees 
without exhausting the funds before the last retiree has died 
can thus be determined with precision. Each individual can 
be protected against outliving his or her retirement income 
and avoid the risk caused by the impossibility of predicting 
when any particular individual will die. This is the annuity 
principle, as applied to a pension plan of the type involved 
here. As noted, its operation depends upon application to 
large groups.

(b) Risk Classification and Equity

Insurers and pension plans can make accurate cost 
determinations among participants only by employing 
fundamental concepts of risk classification; that is, by 
identifying groups of persons who can be expected to 
exhibit the same degree of risk. The actuary must have a 
reliable basis for grouping individuals in risk categories or 
classes so that all persons within each class of persons pre­
sent a similar risk of living or dying.

Each person within each class so identified can then 
be accorded the same expectation of benefits per dollar of 
cost to the plan, since all persons within the classes so estab­

503



6

lished present approximately the same risk, or probability 
of loss, to the pension plan or insurer. This is the principle 
of “equity”. It is required for insurance and annuities by 
the laws of most states. (E . g N.Y. Ins. Law (McKinney) 
§ 209).

Principles of risk classification are basic to insurance 
and retirement plans. Under insurance plans, for example, 
in order to attract a large enough group of individuals to 
form a pool so that the insurance will be economically 
viable, rates charged to individuals must be made fair and 
equitable. This is done by classifying insureds on the basis 
of risk factors which are significant, statistically measurable 
and directly related to the expected risk of loss. If indivi­
duals are forced to pay premiums which subsidize other 
persons’ risks that are substantially greater than their own 
(e.g., owners of brick homes near a fire department paying 
the same premiums as owners of wooden homes remotely 
located), they will eventually withdraw from the pool.

The object of classification for the funding and payment 
of lifetime pension benefits, then, is to classify into groups 
individuals having very close to the same risk in terms of 
longevity. Age is one factor in determining this risk. 
Obviously, a group of persons aged 55 can be expected to 
live more years than a group aged 65. The other immutable 
factor which has been statistically demonstrated to have a 
significant effect upon mortality rates is the sex of the indi­
viduals.* Statistics have consistently shown significantly 
lower mortality rates at every age among females than

*Although race is sometimes also mentioned in this respect, we 
are not aware of any data on annuitant mortality to support this 
view. To the contrary, the statistics which are available concerning 
the general population show that, at the higher ages (which are the 
ages relevant here), there is no significant difference in the longevity 
of whites and non-whites. These statistics also show that the same 
kind of differences in male-female longevity exist for non-whites as 
for whites. See Pub. Health Service, U.S. Dep’t of Health, Educ., and 
Welfare, Vital Statistics of the United States, Vol. II, Part A, p.
(1972).504



7

among males. It follows that when persons are classified 
for purposes of computing the costs of lifetime retirement 
incomes, women should be grouped with men having the 
same prospective mortality risk, or life expectancy—that is, 
with men who are several years younger. It would be no 
more realistic to place men aged 65 in the same risk classi­
fication as women aged 65 than it would be to place women 
aged 65 with women aged 60.

(c) Cost Impact

The effects of the differences in male-female mortality 
rates upon the retirement plan here can be seen easily from 
the Tables 1-3 included in Addendum A hereto. These 
Tables reflect the application of the mortality tables used 
by petitioners (A. 84) to groups of 100,000 males and
100,000 females, aged 65. The Tables were prepared by the 
actuaries of TIAA-CREF.

Table 1 demonstrates the survival experience of these 
groups. As confirmed by this Table, more women than men 
will survive at every age and, as a result, more payments 
will be required almost from the outset for many more 
women than men—at age 90, for example, to nearly twice 
as many.

The effect of greater female longevity also appears when 
the aggregate number of deaths to date is compared, as is 
done in Table 2. As shown there, 37 percent of the men, 
but only 25 percent of the women will have died at age 75. 
And, by age 85, 79 percent of the men will have died, 
compared with only 67 percent of the women. The greater 
number of male deaths means, of course, that fewer total 
Payments are required for the surviving men as a group, 
than for the surviving women.

This need for additional payments to the women ap­
pears clearly from Table 3 in Addendum A, which com­
pares the aggregate number of years that will be lived by 
the men and the women (men, 1,470,820 years, and 
women, 1,759,639 years). Converting these additional 505



8

years lived into the number of periodic payments that must 
be made during those years shows that, if the payments 
are made annually, the females will receive a total of about
300,000 more payments than the males.

Indeed, because of greater female longevity, nearly all 
of the women in the plan will have received more at the 
time of their deaths than the men who have died at the 
same points in relation to the remainder of their respective 
groups. This can be seen by comparing the total amount 
of periodic payments received by each of the males and 
females, according to the order in which they died (i.e., 
beginning with a comparison of the man and woman who 
died first and proceeding with like comparisons to those 
who died last). This, of course, is the order in which retire­
ment benefits cease. Such a comparison, using the data set 
forth in Tables 1-3, would show that nearly 100 percent of 
the women so compared will have received more payments 
(and, since the periodic payments in this retirement plan 
are equal, more dollars) than their male counterparts— 
still another reflection of the greater female longevity.

In sum, there can be no question as to the higher cost of 
providing retirement benefits of the same periodic amount 
to women as to men of the same age. To recognize this fact 
is not “discrimination” of any sort against anyone, and 
certainly not against the women. If a retirement plan is to 
remain solvent, a greater amount must be accumulated for 
the women than for the men of the same age, assuming the 
amounts are to be paid out in equal periodic amounts; or, 
if the same amounts are to be accumulated for both groups, 
the accumulations must be paid out in somewhat lower 
periodic amounts to the women.

The Decision Below
The Ninth Circuit recognized the “unique” nature of the 

issue here when it initially considered this case on appeal.
506 It stated (553 F.2d at 586):



9

“In the present case a relevant characteristic in 
determining how large an individual’s retirement 
contribution should be is an informed prediction as 
to how long the person will live. But this character­
istic, unlike those in the prior cases, is impossible to 
determine on an individual basis at the time when 
the contribution must be made. Thus, the policy of 
allowing relevant factors to be considered can be 
met only by allowing the group longevity statistics 
to be attributed to the individual members of the 
group.”

Having conceded the impossibility of individual testing 
and analysis in the context of this case, the court neverthe­
less held in effect that such treatment is required by Title 
VII. Further, the Ninth Circuit rejected the applicability 
of section 703(h) of Title VII (the Bennett Amendment), 
which provides that differentiations on the basis of sex that 
are permitted under the Equal Pay Act are also permissible 
under Title VII. The Court of Appeals bottomed its deci­
sion on an administrative ruling by the EEOC which had 
concluded that generalizations relating to sex “cannot be 
permitted to influence the terms and conditions of an indi­
vidual’s employment, even where the generalizations are 
statistically valid.” (553 F.2d at 591) (Emphasis in orignal).

The decision of this Court in General Electric Co. v. 
Gilbert, 429 U.S. 125 (1976) (hereafter, "Gilbert”) led to 
a rehearing. Two of the judges adhered to their original 
opinion. Referring to the legislative history of the Bennett 
Amendment that they had rejected in their initial opinion, 
these judges made the curious statement that: “We did not 
find it [originally] to be persuasive legislative history; the 
Supreme Court did find it persuasive.” (553 F.2d at 593). 
Although agreeing that they were “bound by that conclu- 
S1°n (id.), which was in conflict with their own, these

507



10

judges still concluded that their own original opinion was 
not in error.

All this led one of the judges on the panel, Judge 
Kilkenny, to reverse himself and to file a sharp dissent. He 
was convinced that the principles enunciated by this Court 
in Gilbert were controlling and that the standards of the 
Equal Pay Act sanctioned the instant practice. Suggesting 
that the majority was “playing with words” (553 F.2d at 
595), he stated (at 597):

“The majority’s tortured views on the obvious 
breadth of General Electric become apparent in its 
writing around and failure to accept the Supreme 
Court’s application of this regulation [under the 
Equal Pay Act]. This regulation, as I read it, con­
templates the actuarial equivalent of the scheme 
before us. If employer contributions are equal for 
men and women, there is no statutory violation 
even though the resulting benefits are not equal as 
between men and women.”

As the following analysis will show, Judge Kilkenny 
was correct. Under these circumstances, his concluding re­
marks present, we think, the proper rule (553 F.2d at 
598):

“One must sympathize with the plight of the 
appellants— a plan drawn up to comply with the 
regulations of the Wage and Hour Division will in­
evitably conflict with the recent regulations of the 
EEOC. This typifies the type of ‘no win’ situation 
alluded to by the Supreme Court in G eneral Electric 
[429 U.S. at 140, n. 18], and reinforces my con­
clusion that the discrimination, if any, fostered by 
this plan is of a type which did not concern Con­
gress when enacting Title VII.”

508



11

Summary of Argument

The majority below concluded that Title VII had been 
violated because each of the employees under the instant 
retirement plan was supposedly not treated as an individual, 
in that the plan required differing employee contributions 
from men and women, based upon mortality tables reflect­
ing differences in male-female longevity.

The majority reached its conclusion by comparing men 
and women of the same age. But, in so doing, the majority 
was in fact comparing groups who were not similarly situ­
ated as to the essential element, life expectancy. Actuarial 
studies have consistently demonstrated that women, at every 
age, have lower mortality rates than men of the same age. 
Concepts of prohibited “discrimination” articulated by this 
Court have never proscribed treating different classes of 
persons differently. It is just as discriminatory to treat dis­
similarly situated classes equally as it is to treat similarly 
situated classes differently.

There is nothing arbitrary or irrational about recogniz­
ing the conceded and objectively identifiable disparity in 
male-female life expectancy in computing rates for retire­
ment plans. Far from constituting a mere pretext for dis­
crimination against either sex, recognition of this difference 
in longevity ensures financial viability for the plans and 
equitable treatment for all participants.

It is unrealistic and unworkable to attempt to force an 
“individualized” analysis upon an insurance context. Unlike 
the possibility of testing job applicants for their qualifica­
tions before employment, there is simply no way to deter­
mine in advance when a particular person will die. (This, 
of course, is the reason that insurance and annuities exist). 
The majority below conceded that individual testing in this 
respect was impossible, but nevertheless concluded that 
Title VII had been violated. Hence, the majority’s reason- 
mg would lead to the possibility of entities being held liable

509



12

under Title VII for having failed to accomplish the im­
possible— a result which Congress could not have intended.

Insurance, by its nature, requires reference to groups. 
Accordingly, as we believe was confirmed by this Court in 
Gilbert, the measurement of equality in an insurance con­
text should be made in terms of groups, not individuals, 
An employer complies with Title VII when it provides in­
surance coverage of the same value, or worth, to equal 
groups of men and women (Gilbert p. 139, n.17). In this 
case, the employer actually made greater contributions on 
behalf of the women than the men and, accordingly, pro­
vided the women with an income at retirement of a greater 
value than that provided for the men.

To require insurers to ignore the acknowledged differ­
ences in the mortality rates of men and women, as some 
have urged is indicated by the decision of the majority 
below, would create real inequalities where none exists now 
in private insurance plans such as those managed by TIAA- 
CREF. It would also unfairly impose increased costs upon 
both men (who would be charged higher rates for annuities) 
and women (who would be charged higher rates for life 
insurance). No such result is required by Title VII. More­
over, even if the recognition of the disparity in male-female 
longevity constituted “discrimination” under Title VII (and 
it does not), the recognition would be fully justified by the 
fundamental necessities of the business of insurance.

The majority below also deferred inappropriately to a 
recent guideline of the EEOC, in concluding that a viola­
tion of Title VII had occurred. In so doing, the majority 
erred, because: ( 1 )  the Bennett Amendment in Title VII 
requires that interpretations of the Equal Pay Act are also 
applicable to Title VII when, as here, claims of discrimina­
tion in compensation are made; (2) the legislative history 
and administrative interpretations of the Equal Pay Act 
show plainly that employers were to be permitted to con- 

510 tinue recognizing the different risks arising from disparities



13

in male-female longevity, when computing costs or benefits 
under retirement plans; (3) the recognition of this differ­
ential is thus sanctioned by the standards of the Equal 
Pay Act; and, therefore, (4) it must also be permissible 
under Title VII.

As Judge Kilkenny recognized in his dissent below, this 
Court in Gilbert held, in referring to the same legislative 
history and Equal Pay regulation as are invloved here, that 
they constituted the proper interpretation of Title VII and 
were controlling over a contrary guideline of the EEOC. 
Indeed, Judge Edward T. Gignoux, in his recent, detailed 
opinion in Equal Employment Opportunity Commission v. 
Colby College, supra, annexed hereto as Addendum B, 
articulated precisely the analysis summarized above, in dis­
missing the EEOC’s claim of Title VII “discrimination” in 
the private insurance and annuity plans at issue there.

ARGUMENT
I

TITLE VII DOES NOT PROHIBIT THE RECOGNITION 
OF DIFFERENCES IN MALE-FEMALE LONGEVITY IN THE 
COMPUTATION OF RATES FOR RETIREMENT PLANS

Section 703(a) (1) of Title VII of the Civil Rights Act 
of 1964 makes it unlawful for an employer “. . . to dis­
criminate against any individual . . . because of such indi­
vidual’s . . . sex. . . .” (42 U.S.C. § 2000e-2(a)(l)). The 
section thus requires a showing of “discrimination”.

This Court has repeatedly held that, while prohibited 
discrimination may arise when persons in the same class 
are dissimilarly treated, it does not arise when persons in 
different classes are treated differently. As the Chief Justice 
stated for the unanimous Court in Reed v. Reed, 404 U.S. 
71, 75 (1971): “This Court has consistently recognized 
that the Fourteenth Amendment does not deny to States 
the power to treat different classes of persons in different

511



14

ways”—an analysis which is also of direct relevance to 
claims of “discrimination” under Title VII. Gilbert at 
133, 145.

The court below in this case compared men and women 
of the same age in concluding that illegal discrimination 
had occurred. But the comparison actually concerned per­
sons belonging to different classes as to life expectancy, the 
determinative issue. For, while the respective male and 
female groups may have been similarly situated in terms 
of age or employment history, they were not so situated as 
to the crucial factor—risk of mortality—that must be con­
sidered in the computation of rates for a retirement plan, 
the issue here. It is undisputed that, at every age, women 
on average have lower mortality rates than men of the same 
age.

Equality of treatment may be denied as much by appli­
cation of a single standard to persons unequally situated as 
by application of different standards to persons equally 
situated. See, Griggs v. Duke Power Co., 401 U. S. 424 
(1971). Insurance necessarily requires some differentiation, 
or “discrimination”, among groups in different risk classes. 
(See pp. 5-8 supra). To require otherwise would cause 
grossly unfair treatment of the many insureds who would 
receive less value for their money in order to subsidize the 
cost of insuring risks far greater than their own.

This Court in Geduldig v. Aiello, 417 U.S. 484 (1974) 
and again in Gilbert rejected the contention, apparently 
accepted by the courts below in this case, that any dissimilar 
treatment of men and women on the basis of differences in 
risks and costs arising from attributes that may be unique 
to one of the genders, is prohibited. A criterion to be applied 
in such instances is whether the dissimilar treatment results 
from a condition that is “objectively identifiable.” If so, such 
distinctions will not be proscribed, absent a showing that 
they are “mere pretexts designed to effect an invidious

512



15

discrimination against the members of one sex or the 
other. . . (Aiello at 496-97, n.20; Gilbert at 134-35).

The instant case, no less than Aiello and Gilbert, 
involves a distinction based, not upon gender as such, but 
upon different risks arising from an “objectively identifiable” 
condition associated therewith: differing male-female lon­
gevity. Here, the distinction is objectively identifiable 
through the use of established actuarial techniques. Males 
and females are placed in different classes, not because of 
their gender, qua gender, but because statistics indisputably 
show that at every age women as a group have lower mor­
tality rates than do men of the same age and therefore 
present a correlatively greater risk of extended longevity.

Contrary to the opinion of the majority below, it is only 
invidious, or arbitrary and irrational, classifications that 
are proscribed both by the Constitution (e.g., Reed at 75) 
and by Title VII. As this Court stated in Griggs at 429-31 
when describing the purpose of Title VII:

“The objective of Congress in the enactment of 
Title VII is plain from the language of the statute. 
It was to achieve equality of employment oppor­
tunities and remove barriers that have operated in 
the past to favor an identifiable group. . . .”

What is required by Congress is the removal of 
artificial, arbitrary and unnecessary barriers to em­
ployment when the barriers operate invidiously to 
discriminate on the basis of . . . impermissible classi­
fication.” (emphasis added)

There is nothing arbitrary or irrational in the instant 
classification. The basis for it can easily be seen from the 
ables included in Addendum A hereto. As appears there-

513



16

from, the women, as a result of their lower mortality rate, 
live many more years and therefore require many more 
payments over their lifetimes than the men of the same age, 
(See pp. 7-8 supra). Basic common sense therefore dictates 
that, if the plan is to remain solvent, either sufficient addi­
tional money must be contributed for the women, or the 
women must be paid their benefits at a lower periodic rate 
than the men. To recognize this undeniable fact is neither 
arbitrary nor irrational. To ignore it, is both arbitrary and 
irrational.

Nor does the recognition of the difference in male- 
female longevity in any way constitute a “mere pretext” 
(Gilbert at 134-35) to effect invidious discrimination 
against women or men. To the contrary, by taking into 
account the differences in risks and costs arising from this 
mortality differential, equitable treatment is obtained for 
all individuals. (See pp. 5-7, supra). Since it is actuarially 
established that women as a group live longer than men of 
the same age, it is entirely appropriate to group them with 
their counterparts of the same life expectancy, whether 
they be male or female.*

Compounding the foregoing errors, the courts below 
attempted throughout their opinions to force a rule which is 
aimed at protecting the employment rights of individuals, 
upon an insurance context, where groups, not individuals, 
are the essential component. This is perhaps nowhere more

♦ T h e  absence of a n y  gender-directed discrimination in this ap­
proach is immediately apparent f r o m  its application in m a n y  private 
insurance plans. Thus, in individual annuities, w o m e n  m a y  either pay 
s o m e w h a t  higher p r e m i u m s  or receive lower periodic benefit payments 
than d o  m e n  of the s a m e  age, but, in individual life insurance, men, 
for the s a m e  reason— greater female longevity— either pa y somewhat 
higher p r e m i u m s  or receive lower death benefits than d o  w o m e n  ot 
the s a m e  age. T h e  mortality data thus affects both sexes in the same 
fashion. F a r  f r o m  establishing a n y  discrimination “against” one sex 
or the other as is proscribed b y  section 703 (h) of Title VII, it proves 
that there is discrimination against neither.

514



17

clearly spelled out than in an Opinion of the Attorney Gen­
eral of the State of Washington (A.G.O. 1973, No. 21 
(October 11, 1973)). There, it was determined that a state 
statute banning sex discrimination in insurance policies did 
not prohibit the sale of insurance which established different 
rates for males and females, based upon the differences in 
male and female life expectancy. The Opinion stated (p. 6):

“The problem presented . . . has few parallels in 
the heretofore decided civil rights cases because 
ordinarily civil rights, like constitutional rights, 
belong to individual persons and not to classes of 
persons. Generalities about the class of persons to 
which the complainant belongs are usually immate­
rial to his or her rights under a civil rights statute, 
even if these generalities are true.

*  * *

“Insurance, however, is something which by its very 
nature applies to classes of persons. Its function is 
to reduce individual risk by lumping persons 
together in classes, all members of the class then 
sharing the cost of the total risk of the class. A 
realistic application of a civil rights statute to insur­
ance must, therefore, deal with the class character­
istics of the insurance industry, and since most of 
decided cases dealing with civil rights take an ‘in­
dividualistic’ approach, they are thus of little assist­
ance in resolving the present question.” (Emphasis 
in original)

The “individualistic” approach, in short, is not realistic 
in its application to an insurance context. Previous cases 
which have found instances of improper “sex-stereotyping” 
have all involved circumstances where the capabilities of 
individuals could be tested individually. The court below

515



18

recognized the crucial significance of this factor. In refer­
ring to its earlier decision striking down a practice of a 
blanket refusal to hire woman for positions which entailed 
long hours of work and heavy physical effort, the Ninth 
Circuit stated (553 F.2d at 586):

“An important basis of our decision was the fact 
that each individual woman applicant could actually 
be tested to see whether the relevant characteristic 
of strength was or was not in fact lacking.”*

While it can and, therefore, must be determined whether 
a woman can lift a 40-pound weight or whether a man 
possesses the qualifications to be an airline cabin attendant, 
it cannot be determined in advance—which is the point at 
which an insurer must determine a rate of contribution 
and/or commit to a rate of payment—how long a particular 
man or woman will live. Individual “testing” for purposes 
of insurance or annuities, that is, forecasting years in ad­
vance when a particular person will die, is simply impos­
sible. Again, the court below recognized precisely this (553 
F.2d at 586):

“(T]his characteristic [longevity], unlike those in 
the prior cases, is impossible to determine on an

*This s a m e  availability of individual testing has also been present 
in cases w h e r e  this Co ur t has f o u n d  overbroad a n d  arbitrary classifi­
cations. E.g., Craig v. Boren, 4 2 9  U.S. 190 (1976) (presumed that all 
females aged 18 w e r e  capable of drinking 3.2 beer while any mate 
of the s a m e  age w a s  not) ; Califano v. Goldfarb, 4 3 0  U.S. 199 (1977) 
(p re su me d that all w i d o w s  required the financial assistance of sur­
vivors’ benefits but that a n y  w i d o w e r  did n o t ) ; Reed v. Reed, supra 
(p re su me d that all m a l e  m e m b e r s  of the military provided the prin­
cipal financial support of their dependents, but that a n y  female mem­
ber did n o t ) ; a n d  Stanton v. Stanton, 421 U.S. 7 (1975) (presumed 
that all males required parental financial support until the age of 21, 
but that a n y  female under 21 did n o t ) . In each of these situations, 
the presumptions under the statutes w o u l d  not necessarily have any 
basis in fact. A n d ,  again of crucial importance, it w a s  possible to 
determine o n  a n  individual basis the relevant requirements or capa­
bilities of the persons involved.

516



1 9

individual basis at the time when the contributions 
must be made.”

Indeed, this Court has already considered and rejected 
exactly the same sort of unrealistic arguments that respon­
dents urged upon the lower courts herein. In Gilbert, the 
respondents also argued for the application of an “indi­
vidualized” analysis, even in an insurance context. In so 
arguing, the respondents there relied in part upon the 
District Court decision in this case. They argued that the 
rationale of the District Court here was properly applicable 
to retirement plans, stating:

“[W]e believe that imposing on employees either 
unequal costs when benefits are equal or unequal 
benefits when costs are equal violates the right of 
each individual employee to be treated equally with 
each individual employee of the opposite sex with­
out attributing to either the benefits or detriments of 
an average based on one sex as a group. . . .”*

The respondents’ argument in Gilbert thus paralleled the 
rationale adopted by the court below in this case as to the 
alleged requirement for individual treatment. Referring to 
the quoted argument, however, this Court in Gilbert charac­
terized it as the sort of “no-win” situation (429 U.S. at 140, 
nd8), which could not furnish the basis for a claim of 
improper “discrimination.”

Insurance by its nature requires reference to groups. 
Accordingly, measurements as to the existence of alleged 
discrimination or discriminatory impact in an insurance 
context should be made by reference to groups, not to 
individuals. This was confirmed, we believe, by the opin- 
10n of this Court in Gilbert, the one decision of which we

r 7A*Supplemental Bridi for R e sp on de nt s o n  R e a r g u m e n t  at 59, in

517



2 0

are aware in which this Court has considered alleged dis­
crimination in the context of a private insurance system, 
Gilbert, in turn, followed the rationale articulated in 
Aiello concerning the state disability insurance plan at 
issue there.* The plaintiffs in both Gilbert and Aiello had 
claimed that the disability insurance plans at issue were 
unlawfully discriminatory because the plans excluded cov­
erage of disabilities related to pregnancy while including 
all others. In rejecting those claims this Court stated 
(Gilbert at 138):

“[W]e start from the indisputable baseline that 
‘[t]he fiscal and actuarial benefits of the program 
. . .  accrue to members of both sexes.’ ”

This Court found (id.) that the benefits of the program 
therefore did not operate

. to discriminate against any definable group or 
class in terms of the aggregate risk protection de­
rived by that group or class from the program,’.”

Accordingly, in a particularly important passage, this Court 
held (id.):

“As there is no proof that the package is in fact 
worth more to men than to women, it is impossible 
to find any gender-based discriminatory effect in 
this scheme. . .

*See, Turner v. Dept, of Employment Security, 4 2 3  U.S. 44 
(1975), wherein this Court specifically contrasted the individualized 
ap proach with the principles w h i c h  m u s t  control in an insurance 
context. There, following traditional individualized analysis, this 
Court invalidated part of the U t a h  e m p l o y m e n t  compensation system 
because it withheld u n e m p l o y m e n t  p a y m e n t s  to all pregnant women 
during a n  18-week period, even th ou gh their capacity to w o r k  could 
b e  determined o n  a n  individual basis. In so holding, the Court made 
clear that the case did not concern “coverage limitations or insurance 
principles central to Aiello” (Id. at 45).

518



21

Application of this analysis to the circumstances pre­
sented in this case confirms the absence of any Title VII 
violation. As Judge Kilkenny noted in his dissent upon re­
hearing in this case (553 F.2d at 596), the “fiscal and actu­
arial benefits” of this plan accrued to members of both 
sexes. The “aggregate risk protection” accorded to the 
women in fact exceeded that accorded to the men, as a 
result of the greater contributions made on behalf of the 
women than the men. Perhaps most importantly, the pack­
age was not “worth more to the men than to the women.” 
Actually, the reverse was true, since the women, having had 
more contributed by the employer on their behalf, would 
reach retirement with benefits worth more than those for 
similarly situated men and, in the aggregate, would also 
receive more than the men. The court below found 
“discrimination” by looking at only half of the equation— 
that is, that the female employees paid somewhat more in 
contributions to the plan than did their male counterparts. 
The majority simply ignored the fact that, while the women 
paid more, they also received more in value.

The rationale followed by the majority was, as Judge 
Kilkenny recognized in his dissent, directly contrary to the 
reasoning of this Court in Gilbert. There, this Court made 
clear that, so long as an employer provided insurance of 
equal value to men and women, there was no requirement 
under Title VII that payment must also be made for an 
extra risk (there, pregnancy; here, longevity) which may 
be presented by one sex. This Court reasoned (429 U.S. 
at 139, n.17):

“If the employer were to remove the insurance 
fringe benefits and, instead, increase wages by an 
amount equal to the cost of the ‘insurance,’ there 
would clearly be no gender-based discrimination, 
even though a female employee who wished to pur­
chase disability insurance that covered all risks

519



2 2

would have to pay more than would a male em­
ployee who purchased identical disability insurance, 
due to the fact that her insurance had to cover the 
‘extra’ disabilities due to pregnancy.”

The Court continued (id.):

“[T]he ultimate result is that a woman who wished 
to be fully insured would have to pay an incre­
mental amount over her male counterpart due solely 
to the possibility of pregnancy-related disabilities. 
Title VII’s proscription on discrimination does not, 
in either case, require the employer to pay that 
incremental amount.”

So here. The employer would not have “discriminated” 
among its employees if it had provided no pension plan at 
all or had paid equal amounts on behalf of all employees, 
male and female. This would give rise to equal dollar 
accumulations prior to retirement and benefits of equal 
actuarial value for all employees upon retirement. Similarly, 
there could be no such claim if the employer had increased 
the salaries of all its employees, male and female, by equal 
amounts rather than contributing those amounts to the 
retirement plan, or had paid those amounts to the em­
ployees upon retirement in a single sum. In each of those 
events, a female employee who wanted to purchase an 
annuity paid at the same periodic rate as to a male of the 
same age would have to pay more than the male, in light 
of the extra risk arising from the longer female life ex­
pectancy. But, as stated in Gilbert, “Title VII’s proscrip­
tion on discrimination does n o t . .  . require the employer to 
pay that incremental amount.” (id.)

This Court specifically rejected in Gilbert any conten­
tion that social policy requires that an employer must pro­
vide greater value to members of one sex than to members

520



23

of the other, in order to avoid a claim of “discrimination” 
(429 U.S. at 139, n. 17):

“The District Court was wrong in assuming, as it 
did, 375 F. Supp., at 383, that Title VII’s ban on 
employment discrimination necessarily means that 
‘greater economic benefitfs]’ must be required to be 
paid to one sex or the other because of their differ­
ing roles in ‘the scheme of human existence.’ ”

The decision of the majority below, while ostensibly 
aimed at eliminating supposedly over-broad generalizations, 
would have precisely the opposite effect. Ironically, for all 
their emphasis on individual treatment, the majority would 
have petitioners ignore the one most important fact in the 
entire controversy—that women as a group outlive men— 
and instead require that petitioners treat men and women 
less individually by presuming inaccurately that their 
expected life spans are identical. Petitioners would be
forced to forego reliance upon a fact (as a group, women of 
any age live longer than men of the same age) that is 
demonstrably true and to resort to an assumption (women 
and men of the same age have equal life expectancy) that is 
demonstrably false.

The undisputed fact is that, because women as a group 
live more years than men of the same age and therefore 
require a greater number of benefit payments, it will cost 
more to provide any given amount of periodic retirement 
income to women than to men. This additional cost would 
continue to exist even if so-called “unisex” tables were 
adopted merging, or “averaging”, the differing mortality 
rates of men and women. Adoption of such tables would not 
c ange the fact that women on average do live longer than 
men. Many more women than men would continue to sur-

521



24

vive each year, and, accordingly, many more periodic pay­
ments would continue to be made to them than to the men.*

If, as under “unisex”, equal amounts were contributed 
by and on behalf of both men and women, the employer 
or insurer would be forced to take some of the funds con­
tributed by and for the men and pay those funds to the 
women. Otherwise, the plan would exhaust the funds ac­
cumulated by and for the women before all of the women 
had died. This would be discriminatory in the extreme and 
would, violate every concept of equity. As Judge Kilkenny 
noted in his dissent below (553 F.2d at 598, n.4):

“[T]he available writing on the subject would indi­
cate that the use of unisex life tables in connection 
with pension plans would not result in equal treat­
ment, but rather in unjustifiable discrimination. 
U. S. Commission on Civil Rights, Civil Rights 
Digest [Winter 1977, pp. 45-6].”**

“Unisex” would in fact create a discrimination of the 
sort which this Court has already determined to be patently 
unconstitutional. Weinberger v. Wiesenfeld, 420 U.S. 636
(1975). There, this Court invalidated a program granting 
survivors’ benefits, based on earnings, to widows, but not to 
widowers. Noting that Social Security taxes had been 
deducted from the salary earned by the deceased wife of the 
plaintiff, Mr. Justice Brennan (at 645) described the 
particularly “pernicious” result of the program:

* A s  appears f r o m  Table 5 in A d d e n d u m  A  hereto, if “unisex” 
w e r e  applied to the T I A A - C R E F  system, a gr ou p of 100,000 women 
annuitants retiring at age 65 w o u l d  require over the course of their 
lifetimes a total of almost $3 billion m o r e  than a like group of men 
during their lifetimes, as su mi ng the s a m e  sized periodic annuity 
p a y m e n t s  as shown.

* * F o r  a detailed discussion of the unfairness of “unisex” see 
Lautzenheiser, “S e x  a n d  the Single Table,” E m p l o y e e  Benefits J. 
(Fall 1976). This analysis is n o w  included o n  the syllabus of required 
reading for those attempting to pass the examinations required for 
accreditation b y  the A m e r i c a n  Society of Actuaries.

522



25

“Thus, she not only failed to receive for her 
family the same protection which a similarly situated 
male worker would have received, but she also was 
deprived of a portion of her own earnings in order 
to contribute to the fund out of which benefits would 
be paid to others. . .

See also Califano v. Goldfarb, 430 U.S. 199 at 206 
(1977).

The quoted observation was made, as noted, in the 
context of the Social Security system, a system of income 
transfers in which individual equity plays almost no part. 
The observation applies with even greater force to private 
insurance and annuity systems, where individual equity is 
essential.* Under “unisex”, monies would be deducted 
from the salary checks of the men in order to contribute 
to a fund that would be used to make payments not to 
them, but to the women. Earnings would be taken away 
from men, simply because they are men, and given to 
women, simply because they are women, and for no other 
reason. “Unisex” would be no more than a sham, disguis­
ing the real discrimination it would create.**

*See, Fleming v. Nestor, 363 U.S. 603, 61 0 (1960) (“ [ T j h e  
noncontractual interest of a n  e m p l o y e e  covered b y  the [Social Secu- 
nty] Act cannot be soundly analogized to that of the holder of an 
annuity, w h o s e  right to benefits is b o t t o m e d  o n  his contractual pre­
mi um payments.”); a n d  Weinberger v. Wiesenfeld, 4 2 0  U.S. 636, 
M7 n.14 (1975) (“ [I] ndividual equity . . . accords benefits c o m ­
mensurate with the contributions m a d e  to the system. . . .”)

* * S o m e  proponents of “unisex” ha ve suggested that such a 
cneme should b e  m a n d a t e d  because the ages of death of m e n  an d 
wo me n aged 65 m a y  b e  m a t c h e d  a n d  a n  “overlap” of approximately 

P ™  -w ^  ar'se- N o t  only is a n y  such comparison a misleading 
of statistics because (a) it fails to m a t c h  all of the m e m b e r s  of 

e w o  groups in the order in w h i c h  they die (and retirement benefits 
sej and (b) it ignores the cumulative p a y m e n t s  m a d e  to all the

S r T  °f e!lc.h  grouP  t0 that P oint (see P- 8> supra), but it really 
nsties nothing m o r e  than a n y  t w o  groups in different risk classi-

523



26

Even if it were concluded that recognition of the differ­
ing male-female mortality rates somehow constituted “dis­
crimination” (and it does not), it would be fully justified 
in insurance by the fundamental necessities of that business, 
A practice claimed to violate Title VII may be justified, as 
this Court only recently confirmed, under the doctrine of 
business necessity. International Bro. of Teamsters v, 
United States, 97 S.Ct. 1843, 1855, n.15 (May 31, 1977) 
(A Title VII plaintiff must establish an invidious “impact” 
which “fall[s] more harshly on one group than another and 
cannot be justified by business necessity”) . See also, Griggs 
at 431 (“The touchstone is business necessity.”)

As discussed, insurance and retirement plans, by nature, 
depend upon groups, and the continuing viability of such 
plans requires application of principles of risk classification. 
Equitable treatment, as previously noted, is required by law 
for insurers such as TIAA-CREF. It is also essential to the 
financial stability of any insurance plan. History has repeat­
edly demonstrated the dismal results of systems that failed 
to accord equitable treatment.* And, reference need only 
be made to the increasing number of reports of the pre­
carious financial position of numerous private and public
fications may be “overlapped”. For example, the dates of death of a 
group of women aged 65 may be matched with those of a group of 
women aged 60, giving rise to an “overlap” virtually identical to that 
which appears when groups of men and women aged 65 are com­
pared. Such an “overlap” proves the speciousness of this entire ap­
proach, since it would lead to the illogical and unworkable conclusion 
that women aged 60 must be paid benefits at the same rate as women 
aged 65. “Unisex”, in short, would make no more sense than “uni- 
age.”

*This was graphically demonstrated, for example, in the early days 
of insurance with the collapse of insurers which followed a method of 
risk sharing known as “Assessment Insurance.” This method devel­
oped in England during the last century when it was assumed the 
fairest way to operate an insurance pool was to charge each insured 
an equal rate, regardless of age and sex. The rate was calculated 
annually in light of the actual death benefits of members of the pool 
and assessed pro-rata among the survivors. The result was that, while 
persons in poor health entered and stayed in the pool, those persons

524



27

retirement systems, to understand the necessity of accurate 
actuarial data and projections.*

In summary, the courts below erred in concluding that 
petitioners had effected an invidious and unjustified dis­
crimination or discriminatory impact against women in 
violation of Title VII.

II.
THE BENNETT AMENDMENT IN TITLE VII REQUIRES 

APPLICATION OF EQUAL PAY ACT STANDARDS TO THIS 
CASE AND THOSE STANDARDS SANCTION THE RECOG­
NITION OF DIFFERENCES IN MALE-FEMALE LONGEVITY 
IN COMPUTING RATES FOR RETIREMENT PLANS.

The majority of the panel in the Ninth Circuit on re­
hearing adhered to its initial conclusion of “discrimination”,
in good health, realizing that such an arrangement was inequitable 
and to their disadvantage, avoided it. Similarly, persons of advanced 
age with a correspondingly higher risk of dying stayed in the pool, 
and younger persons avoided it. The withdrawal from and avoidance 
of the pool by the better risks resulted, in turn, in higher rates of 
claims and premiums. Eventually, the premium rates were so high 
that the remaining members of the pool could not afford them, and 
the insurance scheme collapsed.

The early Fraternal societies set up in this country during the 
early 19th and 20th centuries, often by immigrant groups, experienced 
a similar development. In these Societies, the premiums paid by the 
older members were, typically, not sufficiently greater than those of 
the younger members to carry the greater risks of such matters as, 
for example, burial expense. The Societies were therefore often 
forced to resort to extra assessments of the remaining members to 
cover the excess costs, tending to drive out the younger members 
and increase the burden on the members remaining. This, in many 
cases, caused the insolvency of the Societies. T. O'Donnell, History of 
Life Insurance In Its Formative Years, (1936).

' See, for example: Ehrbar, Those Pension Plans are Even Weaker 
Than You Think, Fortune magazine, Nov. 1977, pp. 104-114 (indus­
trial pension plans reported to be underfunded by at least $50 billion); 
Rail Pension Fund Said to Face Possibility of Depletion by 1986, 
New York Times, Nov. 7, 1977, p. 55, c.l (Railroad Retirement Sys­
tem reported to have insufficient funds to continue to meet required 
P**10n benefits); and U.S. Civil Service Commission, Annual Report, 
l P- ^ (United States Civil Service pension system underfunded 
by $77 billion as of 1974).

525



28

despite the Bennett Amendment, which excludes compen­
sation practices permitted under the Equal Pay Act from 
the proscription of Title VII, and the holding of this Court 
in Gilbert as to the import of that section. It was because 
of this adherence that Judge Kilkenny reversed his earlier 
concurrence and filed his sharp dissent on rehearing. As the 
following analysis will show, Judge Kilkenny was correct.

A. The Bennett Amendment
The Equal Pay Act (29 U.S.C. § 206(d)) was enacted 

in 1963 by the 88th Congress in order to ensure equal pay 
for equal work for both men and women. In so doing, 
Congress included express exceptions intended to permit 
employers to continue recognizing certain kinds of dif­
ferentials including, as will appear, the difference in insur­
ance risks and costs arising from disparities in male-female 
longevity. The same Congress enacted Title VII in 1964. 
Conscious of the potential for conflict between application 
of the exceptions in the Equal Pay Act and the proposed 
inclusion of sex within the proscription of Title VII, Con­
gress was careful to include an additional sentence in Section 
703(h) of Title VII to reconcile any such conflict. That 
sentence provides:

“It shall not be an unlawful employment prac­
tice under this subchapter for any employer to 
differentiate upon the basis of sex in determining 
the amount of wages or compensation paid or to 
be paid to employees of such employer if such dif­
ferentiation is authorized by the provisions of sec­
tion 206(d) of Title 29 [the Equal Pay Act]”.

This provision, generally known as the “Bennett 
Amendment,” thus manifests the plain intent of Congress 
to provide that any possible conflict between the require-

5 2 6



29

ments of Title VII and of the Equal Pay Act, in situations 
where both apply, is to be resolved in favor of the Equal 
Pay Act. The Bennett Amendment was adopted by the 
Senate on June 12, 1964 (110 Cong. Rec. 13647), two 
days after the Equal Pay Act, passed by the same Congress 
in its first session, had become effective. In explaining his 
Amendment to Title VII at the time it was offered, Senator 
Bennett stated on the Senate floor (110 Cong. Rec. 
13646):

“. . . last year Congress passed the so-called Equal 
Pay Act, which became effective only yesterday.

“By this time, programs have been established 
for the effective administration of this act. Now, 
when the civil rights bill is under consideration, in 
which the word ‘sex’ has been inserted in many 
places, I do not believe sufficient attention may 
have been paid to possible conflicts between the 
wholesale insertion of the word ‘sex’ in the bill and 
in the Equal Pay Act.

“The purpose of my amendment is to provide 
that in the event of conflicts, the provisions of the 
Equal Pay Act shall not be nullified.”

Senator Humphrey, the floor manager of Title VII, also 
indicated his understanding that the Amendment was de­
signed to permit differences in the treatment of males and 
females under benefit plans. The following exchange re­
veals Senator Humphrey’s advice to the legislators (110 
Cong. Rec. 13663-64 (1964)):

“Mr . Randolph. Mr. President, I wish to ask 
of the Senator from Minnesota [Mr . H u m p h r e y ], 
who is the effective manager of the pending bill, a 
clarifying question on the provisions of Title. VII.

527



30

Am I correct, I ask the Senator from Minnesota, 
in assuming that similar differences of treatment in 
industrial benefit plans, including earlier retirement 
options for women, may continue in operation under 
this bill, if it becomes law?

M r . H u m p h r e y . Yes. That point was made 
unmistakeably clear earlier today by the adoption of 
the Bennett amendment; so there can be no doubt 
about it.”

Senator Dirksen, minority leader when the Bennett 
Amendment was passed, confirmed the congressional intent, 
when he stated during the debate on that bill, (110 Cong. 
Rec. 13647 (1964)):

“We were aware of the conflict that might de­
velop, because the Equal Pay Act was an amend­
ment to the Fair Labor Standards Act. The Fair 
Labor Standards Act carried certain exceptions. All 
that the pending amendment does is recognize those 
exceptions, that are carried out in the basic act.”

The following year, on July 11, 1965, shortly before 
Title VII was to become effective, Senator Bennett reit­
erated the purpose of his earlier amendment in order to 
ensure that no misunderstanding would exist as to its 
meaning. He then stated in the Senate (111 Cong. Rec. 
13359 (1965)):

“Simply stated, the amendment means that dis­
crimination in compensation on account of sex does 
not violate Title VII unless it also violates the Equal 
Pay Act.”

The language of the Bennett Amendment thus is man­
datory: “It shall not be an unlawful employment practice

528



31

for any employer to differentiate upon the basis of sex in 
determining the amount of wages or compensation paid ... 
(emphasis supplied) where the differentiation is authorized 
by the Equal Pay Act. Practices permitted under the Equal 
Pay Act exceptions are permitted under Title VII. And, it 
is not only the express statutory provisions of the Equal Pay 
Act that govern in instances of overlap with Title VII. 
The administrative interpretations of the Equal Pay Act 
must also prevail. This Court left no doubt in this regard 
in Gilbert. There, Mr. Justice Rehnquist, speaking for the 
majority, stated (429 U.S. at 144):

“Because of this [Bennett] amendment, interpre- 
tions of § 6(d) of the Equal Pay Act are applicable 
to Title VII as well.. . . ”

Indeed, it would be patently anomalous to urge that Con­
gress had deliberately and specifically incorporated the 
standards of the Equal Pay Act into Title VII, yet had dele­
gated the interpretation of those identical standards to one 
agency for purposes of the Equal Pay Act itself and to 
another for Title VII.*

In short, there can be no dispute that, in enacting Title 
VII, Congress foresaw that conflicts could arise in the 
application of that statute and the Equal Pay Act excep­
tions. By including the Bennett Amendment in Title VII, 
Congress provided a statutory method of reconciling any 
such conflicts: interpretations of the Equal Pay Act were 
to control. Judge Gignoux put it succinctly in Equal Em-

*As one commentator has observed:
“It might be argued, that the Bennett Amendment is not 

directed at conflicts between the two statutes so much as the 
conflict of interpretations between the Wage-Hour Admini­
strator and the Equal Employment Opportunity Commis­
sion.” Berg, Equal Employment Opportunity Under the 
Civil Rights Act of 1964, 31 Brooklyn L. Rev. 62, at 76 n.26 
(1964).

529



32

ployment Opportunity Commission v. Colby College, et al, 
annexed as Addendum B hereto (pp. 6-7):

“Both the language of the Bennett Amendment 
and its legislative history disclose the plain intent of 
Congress to avoid subjecting employers to two con­
flicting standards, those of Title VII and those of 
the then recently enacted Equal Pay Act, and to 
provide that any possible conflict between the re­
quirements of Title VII and of the Equal Pay Act 
is to be resolved in favor of the Equal Pay Act.”

Such analysis, as Judge Kilkenny recognized in his 
dissent upon rehearing below, has direct application here.

B. The Equal Pay Act
The Equal Pay Act, as noted, was intended to ensure 

that all employees, male or female, received equal pay for 
equal work. In passing this Act Congress, however, ex­
pressly provided that not every disparity in compensation 
was to be prohibited. Section 6 (d )(1 ) of the Equal Pay 
Act provides in part that no employer shall discriminate; 

“. . . between employees on the basis of sex by pay­
ing wages to employees in such establishment at a 
rate less than the rate at which he pays wages to 
employees of the opposite sex in such establishment 
for equal work . . . except where such payment is 
made pursuant to . . . (iv) a differential based on 
any other factor other than sex. . .

In the retirement plan here the amount of contribu­
tions on behalf of the women actually exceeded those on 
behalf of the men, because of the greater cost for the female 
benefits. Thus, as these contributions are part of wages,*

*See, Wage and Hour Opinion Letter No. 1117 (WH-70), August 
25, 1970; CCH Lab. L. Rep. Transfer Binder W-H Adm. Rulings, 
March 1969-June 1973, f 30,681.

530



33

it cannot be said that petitioners were paying compensation 
to the female employees “at a rate less than that at which” 
the male employees were paid. Respondents’ complaint is 
that, while the employer paid a greater amount for women 
than for men toward a large portion of the pension costs, 
the women, too, contributed more than did the men toward 
the remaining portion of the costs, also as a result of the 
disparity in risks and costs arising from the difference in 
male-female longevity. A review of the legislative history 
and administrative interpretations of the Equal Pay Act 
removes any possible doubt that recognition of such a dif­
ferential in risks and costs is permissible.

1. Legislative History

The Equal Pay Act specifically excepts from its pro­
visions any differential in wages based “on any other factor 
other than sex” (29 U.S.C. § 206(d) (1) (iv )). The 
legislative history of the Act demonstrates beyond ques­
tion that differences in insurance or annuity rates resulting 
from the disparity in mortality risks is precisely the sort 
of “differential” intended by this provision.

In the original subcommittee version of the bill, the 
sole exception to the equal pay rule would have permitted 
differentials between males and females only when based 
upon a “seniority or merit increase system.”* All the orga­
nizations which testified against the bill at the Senate and 
House hearings in March and April 1963, however, raised 
the objection that it cost more to employ females than 
ttales, and that these added expenses were a proper jus-

5 *;fjtion 4 (a) of H.R. 3861, printed in Hearings on H.R. 3861 
na Related Bills, before the Special Subcommittee on Labor of the 
ouse of Representatives, 88th Cong., 1st Sess. (1963) (hereinafter 
Mearmgs-House” at 3); Section 4 of S.882, and §4 (a) of S.910, 

UK 't  hearings on S.882 and S.910, before the Subcommittee on 
o or '£ the Committee on Labor and Welfare, United States 
at j j  ™ Con§-> 1st Sess. (1963) (hereinafter “Hearings-Senate”) ,

531



34

tification for wage differentials. See Hearings-House at 
96-98, 102-04, 137, 146-47, 158, 184-86, 189, 194,241- 
44, 251-52 and 255-57; Hearings-Senate at 114, 130, 
134-35 and 141-50. One of the specific examples cited as 
an increased cost to employ female workers was the addi­
tional cost of providing retirement benefits due to greater 
female longevity. Hearings-Senate, at 142 and 145; Hear­
ings-House, at 103, 184-86 and 241.

As a result of these observations, the bill, as reported 
out of the Committees in both Houses of Congress, included 
a new provision that exempted from the requirement of 
equal pay “a differential based on any factor other than 
sex”, thus giving recognition to the differential in employ­
ment costs arising from differences in male-female longev­
ity.* The Senate Report (No. 176) on the bill specifically 
noted the longevity problem at issue here:

“During the course of the hearings, testimony was 
introduced on the question of the cost which em­
ployers encounter in the employment of women 
which they do not encounter in the employment 
of men . . . Some employers stated that the cost of 
their pension and welfare plans were higher for 
women than men . . . because of the longer life 
span of women in pension benefits.”**

The Report then stated that such differences in cost would 
constitute a “factor other than sex” justifying a differential 
in wages ( id. ).

*H.R. 6060, quoted in H.R. Rep. No. 309, 88th Cong., 1st Sess., 
7 (1963); S.1409, quoted in S. Rep. No. 176, 88th Cong., 1st Sess.,
6  ( 1 9 6 3 ) '  fnr**An employer’s cost is necessarily greater for women than tor
men, where the periodic annuity payments made to both are equal, 
since, given the greater female longevity, more periodic payments will 
have to be made to the women than to the men. Conversely, an em­
ployer’s cost for life insurance providing equal death benefits to men 
and women would be greater for men than for women.

532



35

In short, the legislative history shows that Congress 
intended to continue to permit differentials in pension rates 
resulting from the differences in male-female longevity.

2. Administrative Interpretations

The administrative interpretations of the Equal Pay 
Act, consistent with its legislative history, clearly permit 
computation of rates for retirement benefits based upon 
mortality tables that reflect the differing male-female 
longevity. The Department of Labor is the governmental 
entity given jurisdiction over enforcement of the Equal Pay 
Act, and the Wage and Hour Administrator of that Depart­
ment is charged with enforcing it.

Even before the Equal Pay Act became formally 
effective in June 1964, the Wage and Hour Administrator 
had addressed the subject question. In an Opinion issued 
on May 27, 1964, the Administrator ruled that equal em­
ployer contributions to an insurance plan would not violate 
the Equal Pay Act even though unequal periodic benefits 
may result.* Less than a year later, on January 22, 1965, 
the Administrator again addressed the issue and ruled that 
employee benefit plans met the requirements of the Act if 
either the employer’s contributions or the periodic benefit 
payments to employees were equal.** And, in September

’Specifically, this Opinion in part stated:
“It is our opinion that equal insurance premium payments 

by the employer on behalf of male and female employees 
would not result in any violation of the equal pay provisions 
regardless of difference in benefits.”

Wage and Hour Opinion Letter, No. 257, May 27, 1964; [1961-1966 
transfer Binder] Lab. L. Rep. (CCH) f  30,851.

’’There, the Administrator stated in part:
The Divisions have taken the position that where benefits 

such as insurance are furnished to employees by the employer 
and the actual amount of payments made or costs incurred

533



36

1965, when the Wage and Hour Administrator issued for­
mal interpretative regulations under the Act, the matter 
was specifically covered in a regulation that this Court in 
Gilbert subsequently found to support . . what seems to us 
to be the ‘plain meaning’ of the language used by Congress 
when it enacted . . Title YII (429 U.S. at 145). Follow­
ing the rationale of the earlier Wage and Hour Opinions, 
this regulation, 29 C.F.R. § 800.116(d) (1976) provided:

“If employer contributions to a plan providing in­
surance or similar benefits to employees are equal 
for both men and women, no wage differential pro­
hibited by the equal pay provisions will result from 
such payments, even though the benefits which 
accrue to the employees in question are greater for 
one sex than for the other. The mere fact that the 
employer may make unequal contributions for em­
ployees of opposite sexes in such a situation will 
not, however, be considered to indicate that the 
employer’s payments are in violation of section 
6(d), if the resulting benefits are equal for such 
employees.”

In short, the Wage and Hour Administrator from the 
outset recognized the reality that any retirement plan must 
face: given the universally acknowledged longer average 
life span for women as compared to men, either (a) more 
money will have to be contributed for the women in order

by the employer on behalf of men and women employed o 
equal work are equal, the fact that benefits are unequal wi 
not result in a prohibited wage differential. Also, if the bene­
fits provided by such a plan are equal, the fact that pay®®1® 
made on behalf of men and women are unequal will not d 
considered a violation of the equal pay provisions.”

Wage and Hour Opinion Letter, No. 336, Jan. 22, 1965; [1961-1966 
Transfer Binder] Lab. L. Rep. (CCH) 30,945.

534



37

to pay periodic benefits at the same level as to men of the 
same age, or (b) the benefits will have to be paid to the 
women at a somewhat lower periodic level than to the men. 
The Administrator thereby continued to permit the flexi­
bility needed if viable retirement plans are to be fashioned 
for a variety of contexts—from higher education, where, 
for example, employee mobility may be essential to career 
advancement, to private industrial plans where other fac­
tors may be more important.

The same approach has been followed by every other 
administrative agency with authority over this area*, ex­
cept, as v/ill be discussed, the EEOC. Each of these agen­
cies, except the EEOC, have recognized that the same total 
amount of money simply cannot be paid out in the same 
periodic amounts over different periods of time.

The Wage and Hour Administrator reiterated the plain 
import of the above quoted regulation in two subsequent 
Opinions, one on August 25, 1970 and another on April 26, 
1973. In the August 1970 Opinion, the Administrator con­
firmed that matters relating to retirement plans were covered 
by the Equal Pay Act and ruled:

“This is in further reference to your letter in which 
you inquired about the application of the equal pay 
provisions to the amounts an employer contributes 
toward a retirement or pension plan in behalf of 
his employees.

* * *

“. . .[W]here the employer’s contributions to such 
a plan are equal for both men and women, no wage 
differential prohibited by the equal pay provisions

no7^ ffiĉ of Federal Contract Compliance, 41 C.F.R. § 60-20.3(c) 
L c k ? ePartment °f Health, Education and Welfare, 45 C.FR.8 86.56(b) (2) (1975).

535



38

will result from such payments, even though the 
benefits which accrue to the employees in question 
may be greater for one sex than for the other.”*

The April 1973 Opinion again repeated the same approach 
and also rejected any suggestion that the Department of 
Labor intended to follow the contrary approach which, by 
then, had been set forth in a contrary guideline of the 
EEOC (see infra).**

In short, the Department of Labor has consistently and 
correctly interpreted the Equal Pay Act as permitting em­
ployers to recognize the differing costs of providing retire­
ment benefits for men and women. Plainly, if the instant 
plan, like those managed by TIAA-CREF, had provided 
for equal contributions by and on behalf of men and 
women, it would have been sanctioned under the Act. 
Equal Employment Opportunity Commission v. Colby 
College, et ah, included as Addendum B hereto. In this 
case, as noted, the employer actually contributed a greater

*Wage and Hour Opinion Letter No. 1117 (WH-70), Aug. 25, 
1970; [1964-1973 Transfer Binder] Lab. L. Rep. (CCH) (130,681.

**In the April 1973 Opinion, the Administrator stated:
“Specifically you ask: ‘If an employer makes equal contri­

butions to a retirement plan covering male and female em­
ployees but if, as a result of separate actuarial tables used by 
the plan’s administrators, the female employees, other things 
being equal, receive smaller monthly retirement benefits, is 
the employer in violation of the equal pay provisions?’

“In response to your initial question, our opinion letter of 
August 25, 1970 [W & H Opinion Letter No. 1117], sets forth 
our current position under the Equal Pay Act. We are cog­
nizant of the recent amendments to the Civil Rights Act ana 
the Guidelines issued by Equal Employment Opportunity 
Commission (EEOC) on pension benefits and we will continue 
to watch developments in this area. However, we do no 
anticipate any change in our position in the immediate future. 

Wage and Hour Opinion Letter No. 1276 (WH-224), April 26, 1973, 
Lab. L. Rep. (CCH) % 39,874.

5 3 6



3 9

amount on behalf of women than men. The majority of 
the Ninth Circuit nevertheless concluded upon rehearing 
that this plan was not sanctioned, because it involved un­
equal employee contributions corresponding to the unequal 
costs. While this holding thus would not apply to the 
plans managed by TIAA-CREF, the holding, we suggest, 
is illogical and ignores the underlying rationale of the 
regulation and other applicable interpretations of the De­
partment of Labor under the Equal Pay Act. As Judge 
Kilkenny put it in his dissent below (553 F.2d at 597):

“This regulation [29 C.F.R. § 800.116(d) (1976)], 
as I read it, contemplates the actuarial equivalent of 
the scheme before us. If employer contributions 
are equal for men and women, there is no statutory 
violation even though the resulting benefits are not 
equal as between men and women. The majority 
fails to appreciate the significance of this. In the 
context of pension plans, this rule makes sense only 
if it is read to impliedly authorize the funding of 
employee pension plans upon the basis of separate 
mortality tables. This regulatory justification for 
a plan with equal contributions and unequal bene­
fits cannot be ignored in the variation before us.”

In reaching its conclusion on rehearing, the majority 
(553 F.2d at 593-94) relied upon an Interpretative Bul­
letin which the Wage and Hour Administrator had pub­
lished in February 1966 (29 C.F.R. § 800.151). The Bul­
letin also was urged upon this Court in Gilbert as control- 

,g over 29 C.F.R. § 800.116(d) (1976).* This Court 
rejected that argument in Gilbert, and it has no greater

Ktt«?PPlementaI Brief f°r ResPondents 011 Reargument at 40, in

537



4 0

application here. Indeed, as Judge Kilkenny noted (553 
F.2d at 597), the “vitality” of the Bulletin was questionable 
in any event after Gilbert. Moreover, the purport of the 
Bulletin was obviously not meant to relate to questions 
concerning rates under insurance or retirement plans, 
which questions were encompassed specifically by 29
C.F.R. § 800.116(d) and by the subsequent August 1970 
and April 1973 Opinions of the Wage and House Admin­
istrator, both of which were issued after the February 1966 
Bulletin had been published.

C. EEOC Guidelines

The legislative history of Title VII is devoid of any 
suggestion that Congress intended in 1964 that that statute 
would touch upon the use of mortality tables reflecting dif­
ferences in male-female longevity. Indeed, as this Court 
has noted, the legislative history of Title VII’s proscription 
against discrimination by sex is, except for the Bennett 
Amendment, “notable primarily for its brevity.” (Gilbert 
at 143). Such a suggestion of Congressional intent would, 
in fact, be contrary to subsequent indications. For exam­
ple, the Pension Benefit Guarantee Corporation, the 
agency established by Congress to insure pension plans 
under its recent pension reform legislation* has already 
expressly provided in an interim regulation for the use of 
precisely such data based mortality tables in the evaluation 
of retirement plan benefits. See, 41 Fed. Reg. 48484-91
(1976).**

♦Employee Retirement Income Security Act of 1974 (“ERISA”), 
RL. 93-406, 88 Stat. 829.

♦♦The Federal tax laws also continue to use actuarial tables that 
recognize the difference in male-female longevity in the computation 
of annuity income resulting in different periodic tax burdens as be­
tween men and women. I.R.C. § 72(c) (3) (a); Treas. Reg. §1.72-9, 
T.D. 6233 (1957).

538



41

An initial question therefore exists as to whether the 
issue of alleged “discrimination” in the use of the subject 
mortality tables was ever intended to be covered in any 
fashion by Title VII. There is even a greater question as 
to whether the EEOC had authority to issue any regula­
tions on this subject. As is stated in G ilb e r t, “Congress, in 
enacting Title VII, did n o t confer upon the EEOC authority 
to promulgate rules or regulations pursuant to that Title.” 
(429 U.S. at 141; emphasis supplied). The EEOC was 
only given authority from time to time to issue “procedural” 
requirements (G ilb e r t, id., n.20).

Whatever may be the status of the EEOC’s guidelines, 
however, that agency initially recognized the primacy of 
the Equal Pay Act and the Wage and Hour Administra­
tor’s interpretations as applicable to Title VII. On Novem­
ber 22, 1965, almost immediately after Title VII had 
become effective, the EEOC issued a guideline (29 C.F.R. 
§ 1604.7(b) (1965)) which, under the heading, “Rela­
tionship of Title VII to the Equal Pay Act,” stated in part:

“(a) Title VII re q u ire s  that its provisions be har­
monized with the Equal Pay Act (section 6(d) of 
the Fair Labor Standards Act of 1938, 29 U.S.C. 
206(d)) in order to avoid conflicting interpreta­
tions or requirements with respect to situations to 
which both statutes are applicable. Accordingly, 
the C o m m iss io n  in te r p re ts  se c tio n  7 0 3 (h )  [T h e  
B en n ett A m e n d m e n t] to  m ea n  th a t th e  s ta n d a rd s  o f  
'equal p a y  fo r  e q u a l w o r k ’ s e t  fo r th  in  th e  E q u a l  
P ay A c t  fo r  d e te rm in in g  w h a t is u n la w fu l d is c r im ­
ination  in  c o m p e n sa tio n  a re  a p p lic a b le  to  T it le  VII.

* * *

(b) Accordingly, the Commission w ill make applic­
able to equal pay complaints filed under Title VII

539



4 2

the relevant interpretations of the Administrator, 
Wage and Hour Division, Department of Labor. 
. . . Relevant opinions of the Administrator inter­
preting ‘the equal pay for equal work standard’ 
will also be adopted by the Commission.” (Empha­
sis supplied.)

This guideline confirmed the position that had been 
enunciated by the EEOC’s own General Counsel in an 
Opinion dated October 12, 1965.* Subsequently, in July, 
1966,.the General Counsel of the EEOC addressed the 
matter at issue here and, following the approach previously 
taken by the Wage and Hour Administrator, ruled:

“The Commission . . . does not feel that an em­
ployer commits an unlawful employment practice 
by contributing to or negotiating insurance pro­
grams which provide different benefits for male and 
female employees based upon reasonable actuarial 
considerations required by insurance underwriters. 
Nor does the Commission believe that a violation 
of Title VII occurs when male and female em­
ployees receive the same benefits, but the employer’s 
contributions to the plan differ, depending upon the 
sex of the employee.”**

T h a t Opinion had stated in part:
“Section 703(h) [of Title VII] merely incorporates by refer­
ence into Title VII the enumerated defenses set forth in the 
Fair Labor Standards Act (which were added to that Act by 
the Equal Pay Act of 1963), together with such interpretative 
rulings thereon as the Wage-Hour Administrator has made or 
may make. Thus, where there is inequality of compensation 
pursuant to . . . (4) a differential based on any factor other 
than*sex, such discrimination in payment is permissible under 
Title VII.”

EEOC Opinion Letter (Oct. 12, 1965) [1966] Empl. Prac. Guide 
(CCH) f  17,252.09.

**[1966] 401 F.E.P. Rep. (BNA) 3011-12.

5 4 0



43

For seven years after the enactment of Title VII, the 
EEOC followed the legislative history and mandate of the 
Bennett Amendment in adopting under Title VII present 
and future Equal Pay interpretations, including those dis­
cussed above.* Nevertheless, in 1972, the Commission 
inexplicably issued new, superseding guidelines (29 C.F.R. 
§1604.8) which, again under the heading “Relationship of 
Title VII to the Equal Pay Act,” stated:

“(b) By virtue of section 703(h), a defense based 
on the Equal Pay Act may be raised in a proceeding 
under Title VII.

“(c) Where such a defense is raised the Commission 
will give appropriate consideration to the interpreta­
tions of the Administrator, Wage and Hour Divi­
sion, Department of Labor, but will not be bound 
thereby.” (Emphasis supplied.)

And, simultaneously, the Commission, for the first time, 
announced in other guideline (29 C.F.R., § 1604.9 (f) ) :

“It shall be unlawful employment practice for 
an employer to have a pension or retirement plan 
which . . . differentiates in benefits on the basis 
of sex.”

Thus, the EEOC’s guidelines, after seven years, at­
tempted to turn 180° on this issue in 1972. Initially, recog­
nizing and accepting the plain import of the Bennett 
Amendment, the EEOC announced that it would be bound 
by Equal Pay Act interpretations. (“Title VII requires

u *As late as 1971 the EEOC stated in a Decision that 
• • . § 703 (h) [the Bennett Amendment] was intended to ensure 

consistency in the administration of Title VII and the Equal Pay 
Act." [1973] EEOC Decisions (CCH) 1)6300.

541



4 4

that its provisions be harmonized with the Equal Pay Act”, 
and that “the Commission will make applicable . . Equal 
Pay Act interpretations. (29 C.F.R. § 1604.7(b) (1965) 
(emphasis added). Seven years later, in patent contraven­
tion of the Bennett Amendment, the EEOC announced 
that, not only would it not be bound by such interpretations, 
but that it was proscribing precisely the same practice that 
the Equal Pay Act continued to permit.*

In so doing, the EEOC acted inappropriately. It could 
not properly reverse its mandated compliance with the 
Bennett Amendment unless Congress had changed the law, 
which it had not. The law now, as in 1965, is that, where 
conflict exists between the Equal Pay Act and Title VII 
concerning alleged discrimination in wages or compensa­
tion, interpretations under the Equal Pay Act control. 
Although Title VII was amended in 1972, that amendment 
and legislative discussions relating thereto have no bearing 
on the issues here. This case concerns the provisions and 
purport of Title VII as it was enacted in 1964. The irrele­
vance of the 1972 amendments therefore could not have 
been made any clearer than it was by this Court in Inter­
national Bro. of Teamsters v. United States, 97 S.Ct. 1843, 
1864, n. 39 (May 31, 1977):

“[T]he section of Title VII that we construe here,
§ 703(h) [which contains the Bennett Amend-

*These guidelines, we note, are anything but “procedural”, even 
though that, as discussed supra, was the only subject matter author­
ized by Title VII to be included in regulations. Moreover, even in 
the promulgation of procedural regulations, the EEOC is required to 
conform . . with the standards and limitations of the Administrative 
Procedure Act.” 42 U.S.C. § 2000e-12(a). No such “conformity” 
occurred concerning the 1972 guidelines. Indeed, the EEOC has 
conceded (37 Fed. Reg. 6836; April 5, 1972) that the 1972 guide­
lines did not follow the provisions of the Administrative Procedure 
Act which require (5 U.S.C. §553 (1966)) notices of proposed rule 
makings, and opportunity for public participation, and a delay in the 
effective date.

542



45

ment], was enacted in 1964, not 1972. The views 
of members of a later Congress, concerning differ­
ent sections of Title VII . . .  are entitled to little 
if any weight. It is the intent of the Congress that 
enacted § 703(h) in 1964, unmistakable in this 
case, that controls.”*

In short, the Bennett Amendment now, as in 1964, 
requires that interpretations under the Equal Pay Act be 
applied under Title VII. By refusing to be bound by Equal 
Pay interpretations and announcing a new guideline directly 
contrary thereto, the EEOC improperly attempted to write 
the Bennett Amendment out of Title VII. The EEOC’s 
action thus is even more egregious than the sort of admin­
istrative turnabout described by this Court in Gilbert (at 
142-43). This, when combined with the other patent 
deficiencies in the EEOC’s 1972 guideline (see infra), 
shows plainly that no deference is due to that guideline. Gil­
bert at 142-45; Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 
86,94-95 (197 3).

D. Effect of General E lectric Co. v. Gilbert

In Gilbert the plaintiffs had relied upon a 1972 guide­
line of the EEOC, stating that it was a violation of Title VII 
to exclude pregnancy-related disabilities from a disability 
plan. This Court rejected the plaintiffs’ contention. Instead, 
this Court held that the regulation of the Wage and Hour 
Administrator discussed above was the proper interpretation 
of Title VII (429 U.S. at 140-45).

*To the extent that the 1972 amendment to Title VII (which 
simply extended the coverage of the Act to additional employers and 
pude some procedural changes) has any relevance at all to this issue, 
it is that the amendment made no change whatsoever in the Bennett 
Amendment, thus confirming its continuing importance.

543



4 6

In so doing, this Court noted that the EEOC’s guide­
line was neither contemporaneous with Title VII nor con­
sistent with earlier EEOC guidelines on the same subject. 
In this case, too, the EEOC’s 1972 guideline (enacted at 
the same time as the guideline involved in Gilbert) is 
neither a contemporaneous interpretation of Title VII nor 
consistent with earlier guidelines of the EEOC. Judge Gig- 
noux put it well in discussing exactly this subject in Equal 
Employment Opportunity Commission v. Colby College, 
et al. After reviewing the background of the EEOC guide­
line proffered by the plaintiffs in Gilbert, Judge Gignoux 
stated (Addendum B, n.9, pp. 11-12):

“A similar observation may be made with re­
gard to the Commission guideline on pension or 
retirement plans at issue in this action, 29 C.F.R. 
§ 1604.9(f). Issued in 1972, the guideline is 
hardly a coeval interpretation of Title VII, which 
Congress passed in 1964. Furthermore, the Com­
mission guideline, contradicting as it does the Wage 
and Hour Administrator’s regulation, 29 C.F.R. 
§ 800.116(d), is a substantial departure from the 
previous guideline issued in 1965 in which the 
Commission stated it would defer to the Wage and 
Hour Administrator’s interpretations on equal pay 
questions. 29 C.F.R. § 1604.7(b) (1965).”

A further and even more important reason for this 
Court’s rejection of the EEOC guideline in Gilbert was 
that it “sharply conflicted with other indicia of the proper 
interpretation of the sex-discrimination provisions of Title 
VII.” (429 U.S. at 143). The “other indicia” were found 
in the same legislative history of the Equal Pay Act and 
in the same regulation of the Wage and Hour Administra­
tor that we have already discussed. Confirming that “be-

544



4 7

cause of this [Bennett] amendment, interpretations of 
section 6(d) of the Equal Pay Act are applicable to Title 
VII as well. . . (429 U.S. at 144), this Court quoted
approvingly the regulation of the Wage and Hour Admin­
istrator discussed above (29C.F.R. § 800.116(d) (1976)) 
and concluded that it was a proper interpretation of Title 
VII. Gilbert at 145.

Precisely the same rationale applies to the subject issue. 
Indeed, the regulation discussed in Gilbert as applying to 
pregnancy disability issues has an even clearer application 
to this case, involving as it does a plan “providing in­
surance or similar benefits to employees” (29 C.F.R. 
§ 800.116(d) 1976)). Accordingly, the language of this 
Court (at 145) in dismissing the complaint in Gilbert 
applies a fortiori to this case:

“The EEOC guideline of 1972, conflicting as it does 
with earlier pronouncements of that agency, and 
containing no suggestion that some new source of 
legislative history had been discovered in the inter­
vening eight years, stands virtually alone. Con­
trary to it are the consistent interpretation of the 
Wage and Hour Administrator, and the quoted 
language of Senator Humphrey, the floor manager 
of Title VII in the Senate. They support what 
seems to us to be the ‘plain meaning’ of the 
language used by Congress when it enacted 
§ 703 (a)(1 ).”

In short, the Court below erred in refusing to follow the 
plain meaning of the Bennett Amendment and instead rely­
ing upon the 1972 EEOC guideline and an administrative 
decision of the EEOC relating thereto.

545



48

Conclusion

As shown, the majority of the court below erred in 
according substantial deference to a recent guideline of the 
EEOC. The majority was also incorrect in concluding that 
an “individualized” approach is required in an insurance 
context and in holding that it is therefore “discriminatory” 
in such a context to recognize the conceded differences in 
male-female longevity. Insurance, by its nature, involves 
groups and requires recognition of the differing risk char­
acteristics thereof. It is only by recognizing such differences 
that equitable treatment can be accorded to all insureds 
and the financial integrity of insurance systems can be en­
sured. To the extent that the decision of the majority below 
requires otherwise, the decision should be reversed.

Dated: November 17, 1977

Respectfully submitted,

William R. Glendon 
James B. Weidner 
James W. Paul 

200 Park Avenue 
New York, New York 10017

A tto r n e y s  fo r  T ea c h e rs  Insurance 
a n d  A n n u ity  A ssocia tion  of 
A m e r ic a  a n d  C o lleg e  Retire­
m e n t E q u itie s  F und.

5 4 6



TABLE 1

Survival Experience of 100,000 Males and 100,000 Females Retiring 
at Age 65, Using 1951 Group Annuity Mortality Table

Age
Numbers 
of Males 
Surviving

Numbers 
of Females 
Surviving

Surviving Females 
as a Percentage of 
Surviving Males

65 100,000 100,000 _
70 85,812 91,913 107%
75 67,156 78,574 117
80 45,242 59,049 131
85 24,110 37,100 154
90 9,633 18,309 190
95 2,674 6,280 235

TABLE 2

Aggregate Deaths From 100,000 Retirements at 65 
Using 1951 Group Annuity Mortality Table

MALE FEM ALE

Aggregate 
Deaths 

From Age 
65 to Date

2,442
17,561
37,036
59,268
79,431
92,299
98,043

Aggregate Aggregate
Deaths Deaths

as Percentage Aggregate as Percentage
of Initial Deaths of Initial

Population From  Age Population
at Age 65 Age 65 to Date at Age 65

2% 65 1,360 i%
18 70 10,210 10
37 75 24,908 25
59 80 45,329 45
79 85 67,067 67
92 90 84,700 85
98 95 95,236 95

TABLE 3

Total Number of Years Lived by 100,000 Males and 100,000 Females 
Retiring at Age 65, Using 1951 Group Annuity Mortality Table

MALES FEM ALES

Total Years Lived 1,470,820 1,759,639



D
O

LL
A

RS
 P

AI
D

 (
In

 M
ill

io
ns

)

TABLE 4

TOTAL ANNLJNITY DOLLARS PAID TO SURVIVING 

MALES AND SURVIVING FEMALES EACH YEAR UNDER 

“UNISEX”*, APPLYING M ORTALITY DATA IN USE BY 

TIAA-CREF UNTIL MARCH 1977**

700

600 -

300

100 Payments to Surviving Females 

Payments to Surviving Males

AGE

500 -

Additional Payments to Females: 
$2 ,856,338,000

100,000 males and 100,000 females retiring at age 65 electing single life annuities, 
assuming each male and each female would receive $ 7,000 per year.

548 A -1974 (!, 2'A) Annuity Table.



I n  t h e

i>itprm£ (Eimrt of tip Httttpfc Estates
October T erm, 1976 

No. 76-1810

City of L os A ngeles, D epartment of 
W ater and P ower, et al.,

Petitioners,

Marie Manhart, et al.,
Respondents.

on writ of certiorari to the united states court of appeals
FOR TH E N IN T H  CIRCUIT

BRIEF AMICUS CURIAE OF AMERICAN COUNCIL 
OF LIFE INSURANCE ON BEHALF 

OF PETITIONERS

E dward S ilver 
L arry M. L avinsky 
S tephen  E . T isman 

300 Park Avenue 
New York, New York 10022 

Attorneys for the Amicus
Of Counsel:

Proskauer R ose Goetz & Mendelsohn 
300 Park Avenue 
New York, New York 10022

William B. H arman, J r.
Executive Vice President 
American Council of Life Insurance 
1850 K Street, N.W.
Washington, D.C. 20006

549





I N D E X

Authorities Cited ....................    ii

Interest of the Amicus ...................................................  1

Summary of Argument...............................   2

The Decision Below................................   4

Argument :

Distinctions Between Males and Females Based 
Upon Life Expectancy Are Not Sex-Based Distinc­
tions ............    g

Title VII Does Not Prohibit Distinctions Between 
Male and Female Employees Based Upon Life 
Expectancy ............................................................... . 12
A. Traditional Title VII Tests of Sex Discrimi­

nation Cannot Meaningfully Be Applied to 
Insurance and Pension Benefits ........................ 12

B. Title VII Does Not Prohibit Distinctions In
Insurance and Pension Plans Between Males 
and Female Employees Based On Valid Actu­
arial D ata ............................................................. 19

C. Differentials Based Upon Life Expectancy Are
Permitted Under the Equal Pay Act and 
Therefore Do Not Violate Title V I I .................  35

Implications of the D ecision B elow ...................   42

Conclusion...................... 59

PAGE

551



Cases:
A u t h o r i t i e s  C i t e d

American Federation of Musicians v. Witt stein, 379 
U.S. 171 (1964) ...................................... ...................  26

Cohen v. Chesterfield County School Board, 474 F.2d 
395 (4th Cir. 1973), rev’d on other grounds sub nom. 
Cleveland Board of Education v. La Fleur, 414 U.S.
632’ (1974) ...................................................................  29

Commissioner of Internal Revenue v. Standard Life &
Accident Insurance Co., -----  U .S .----- , 97 S. Ct.
2523 (1977) .................................................................  2

Dennis v. United States, 339 U.S. 162 (1950) .............  50

Employers Mutual Liability Ins. Co. v. Arrien, 244 F.
Supp. 110 (N.D.N.Y. 1965) .......................................  26

Equal Employment Opportunity Commission v. Colby 
College, D aily L ab E ep. (BNA) No. 212 (Nov. 2,
1977 at D-l) ...................   37,38

Espinosa v. Farah Manufacturing Co., 414 U.S. 86
(1973) ................................................................6,25,26,34

Friedman v. United States, 374 F.2d 363 (8th Cir. 
1967) ...............    35

Geduldig v. Aiello, 417 U.S. 484 (1974) ..................... 7,39,40
General Electric Co. v. Gilbert, 429 U.S. 125 (1976) -.2,5, 

6,7, 8, 9,10,17, 22, 34, 37, 38,39,40,45 
Griggs v. Duke Power Co., 401 U.S. 424 (1971) ...... 5,15,16

Hecht v. Pro-Football, Inc., 444 F.2d 931 (D.C. Cir. 
1971), cert, denied, 404 U.S. 1047 (1972) ................... 35



I l l

Inland, Steel Co. v. NLRB, 170 F.2d 247 (7th Cir. 1948),
cert, denied, 336 U.S. 960 (1949) ................................. 39

Ithaca Trust Co. v. United States, 279 U.S. 151 (1929) 20

Kettell v. Johnson d  Johnson, 337 F. Supp. 892 (E.D.
Ark. 1972) ............................................................... ’ ’ 35

Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737
(1976) ....................................................................... 9

PAGE

Manhart v. City of Los Angeles, Dep’t of Water and 
Power, 553 F.2d 581 (9th Cir. 1976), cert, granted,
46 U.S.L.W. 3214 (U.S., Oct. 3,1977) ..............4,15,16,42

Manhart v. City of Los Angeles, Dep’t of Water and
Power, 387 F. Supp. 980 (C.D. Calif. 1975) ............15,18

Morton v. Mancari, 417 U.S. 535 (1974) .....................  26
Morton v. Ruiz, 415 U.S. 199 (1974)  ................. .......... 34

Ozawa v. United States, 260 U.S. 178 (1922) .............. 35

Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) .. 15,
16,18

Pafford v. Randle Eastern Ambulance Service, Inc.,
348 F. Supp. 316 (S.D. Fla. 1972) ............................ . 29

Panes v. Office Employees International Union, 317
F.2d 915 (7th Cir. 1963) ....................... ....................  26

Posenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th 
Cir- 1971) .............................................................. 15,16,18

Schultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.),
cert, denied, 398 U.S. 905 (1970) ................................. 22

Skidmore v. Swift & Co., 323 U.S. 134 (1944) ..............  34
Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th 

Cir.), cert, denied, 404 U.S. 991 (1971) ................... 15,16

553



IV

Toilet Goods Association v. Finch, 419 F.2d 21 (2d Cir 
1969) ...... .... .......... ...... ,... ,35

United Housing Foundation, Inc. v. Forman, 421 U.S.
837 (1975) ................................................................... 34

Willingham v. Macon Telegraph Publishing Co., 482
F.2d 535 (5th Cir. 1973) ...................... ....... ............. 15

Willingham v. Macon Telegraph Publishing Co., 507 
F.2d 1084 (5th Cir. 1975) (en banc) ......................6,16,23

Zachary v. R.H. Macy d  Co., 31 N.Y.2d 443 (1972) .... 35

Statutes :

Civil Eights Act of 1964, Title VII, 78 Stat. 253, as 
amended by the Equal Opportunity Act of 1972, 86
Stat. 103, 42 U.S.C. §2000e et seq...........................passim

Section 703(h), 42 U.S.C. §2000e-2(h) .............. 5,22,23,
35,36,38

Section 716(a), 78 Stat. 266 ............. ..................  30
Employee Eetirement Income Security Act of 1974, 29

U.S.C. §1001 et seq. (Supp. V 1975) ........................ 24
Equal Pay Act, 29 U.S.C. §206 ................................. passim
Equal Pay Act, 29 U.S.C. §206(d) ............................ 35,40
Int. Rev. Code of 1954 §72 .......................................  24
Ala. Code tit. 51, §432 (1958) .......................................  24
Alaska Stat. §43.31.011 (1977) ..................................... 24
Ariz. Rev. Stat., vol. 18, Table VIII, & Supp., Tables

VIII-X (West 1956 & Supp. 1977) ............................  26
Cal. Ins. Code §790.03 (West Supp. 1976) ................. 29
Cal. Lab. Code §1432 (West Supp. 1977) ...................  30
Cal. Rev. & T. Code §13953 (West Supp. 1976) ..........  26
Del. Code tit. 30, §1326 (1974) .......................................  24
Del. Code tit. 19, §711.(h) (1975) ...................................  30

PAGE

554



V

PAGE

D.C. Code Ann. §35-715 .............. ............................... .....  29
Fla. Stat. Ann. §198.02 (West 1971) ............................. 24
Ga. Code Ann. §92-3401 (1974) .............................. ......  24
Ind. Code Ann. §6-4.14-5 (Burns 1976) .......................  24
Iowa Code Ann. §450.51 (West 1971) ............... ............ . 26
Iowa Code Ann. §601A.12 (West 1975) ........................ . 29
Iowa Code Ann. vol. 58 (West Supp. 1977) [tables] .... 26 
Me. Rev. Stat. tit. 5, §4573 (1973 Supp. Pamphlet) ........ 30
Md. Ann. Code art. 81, §160 (Supp. 1976) .................. 24
Mass. Ann. Laws ch. 65, §13 (Michie/Law Co-op Supp.
.1976) ............................................................... ......... ..... 24

Mo. Ann. Stat. §296.020 (Vernon Supp. 1976) ..............  29
Mont. Rev. Codes Ann. §64-328 (Supp. 1976) ..............  30
Neb. Rev. Stat. §77-2008 (1976) ............................... 24
N.H. Rev. Stat. Ann. §86:11 (Supp. 1975) .....................  24
N.M. Stat. Ann. §72-33-3 (Supp. 1975) .........................  24
N.D. Cent, Code §31-08-05 (1976) ..................................  26
N.D. Cent. Code §57-37.1-03 (Supp. 1977) .....................  24
Or. Rev. Stat. §118.150 (1975)  .......................................  24
Or. Rev. Stat. §659.028 (1975) ........................................  29
Pa. Cons. Stat. tit. 43, §955 (Purdon Supp. 1977) ....... 30
S.C. Code §12-15-40 (1976) .................................. ......... 24
Tex. Tax Code tit. 20A, §14.08 (1971) .......................  24
Utah Code Ann. §59-12A-3 (1977) ............................... 24
Vt. Stat. Ann. Tit. 32, §7442 (1971) ............................. 24
Wis. Stat. Ann. §72.28 (West 1972) ............. ................  24

Standard Valuation Statutes:

Ala., Alaska, Ariz., Ark., Cal., Col., Conn., Del., D.C.,
Fla., Ga., Haw., Idaho, 111., Ind., Iowa, Kan., Kv.,
La., Me., Md., Mass., Mich., Minn., Miss., Mo., Mont.,
Neb., Nev., N.H., N.J., N.M., N.Y., X.C., Ml).. Ohio,
Okla., Or., Pa., S.C., S.D., Tenn., Tex., Utah, Vt., Va.,
Wash., W.Va., Wis., Wyo............................................  27 555



VI

Non-forfeiture Statutes:

Ala., Alaska, Ariz., Ark., Cal., Col., Del., D.C., Fla., 
6a., Haw., Idaho, 111., Ind., Iowa, Kan., Ky., La., 
Me., Md., Mass., Mich., Minn., Miss., Mo., Mont., 
Neb., Nev., N.H., N.J., N.M., N.Y., N.C., N.D., Ohio, 
Okla., Pa., S.C., S.D., Tenn., Tex., Utah, Vt., Va., 
Wash., W.Va., Wis., Wyo..........................................  28

PAGE

Regulations:

29 C.F.R. §800.116(d) .................................................... 31
29 C.F.E. §1604.8 ............................................................ 36
29 C.F.R. §1604.9 ...........................................................  34
41 C.F.R. §60-20.3 (c) ....................................................  31
45 C.F.R. §86.39 .........................................    32
45 C.F.R. §86.56(b) (2) ..........................   32
30 Fed. Reg. 14928 ......................................................  36
37 Fed. Reg. 6835 .................................   34,36
37 Fed. Reg. 6837 .......................................  34,36
38 Fed. Reg. 35336 ......................................................  32
38 Fed. Reg. 35337 ......................................................  32
38 Fed. Reg. 35338 ......................................................  32
39 Fed. Reg. 22237 .......................................   32
40 Fed. Reg. 24135 ................................    32
40 Fed. Reg. 57980 ...........................................    24
Treas. Reg. §1.72-5 (1956) .............................................. 24
Treas. Reg. §1.72-9 (1956)..............................................  24
Treas. Reg. 20.2031-10(f) (1970) ...................................  24

Miscellaneous:

109 Cong. Rec. 9205 (1963) 
109 Cong. Rec. 9206 (1963)
109 Cong. Rec. 9217 (1963)
110 Cong. Rec. 2581 (1964)



110 Cong. Eec. 2584 (1964) .............................................. 23
110 Cong. Eec. 13663 (1964) ......... ....................................  38
111 Cong. Eec. 13359 (1965) .............................................. 35
EEOC General Counsel opinion letter (July 28, 1966),

BNA F.E.P. E ep. 401:3011-12 ...................................... 33
Wage-Hour Administrator opinion letter No. 257 (May

27,1964), CCH Wages & H ouks 130,851 ..... .............. .30, 31
Wage-Hour Administrator opinion letter No. 336 (Jan.

22, 1965), CCH Wages & H ouks 130,945 ..... .............  31
Wage-Hour Administrator opinion letter No. 394 (Oct.

27, 1965), CCH Wages & H ours 130,996.22 ............... 31
Wage-Hour Administrator opinion letter No. 484 (Aug.

3,1966), CCH Wages & H ours 1130,997.26 ...................  31
Wage-Hour Administrator opinion letter No. 1117 

(WH-70) (Aug. 25, 1970), CCH Wages & H ours
1130,681 ........................................    31

Wage-Hour Administrator opinion letter No. 1276 
(WH-224) (Apr. 26, 1973), CCH Wages & H ours 
130,874 .............................................................................  31

American Council of Life Insurance, Life I nsurance
Fact Book 1977 ...........................................................  47 43

J. Athearn, E isk and I nsurance (2d ed. 1969) ................  13
Bailey, Hutchison & Narber, T h e  R e g u la to ry  C hallenge  

to L ife  In su ra n ce  C lassifica tion , 25 Drake L. E ev.
Ihs. L. Ann. 779 (1976)........................................_........  47

Cherry, 23 Transactions of the Society of Actuaries,
“The 1971 Individual Annuity Mortality Table” 495- 
546 .......................................................................  1?

Daily Lab. Eep., No. 80 (Apr. 23, 1976) at A-12........... 43
Daily Lab. Eep., No. 122 (June 23, 1976) at E -3 ........... 47
F' Hicks, Accounting for the Cost of P ension P lans 

(1965) ..............................................................................  19
Eng, M en, W o m en  and  L ife  A n n u it ie s , 43 J. E isk &

Iss. 553 (1977)

vii

PAGE

47 5 5 7



V l i l

558

J. Magee, General I nsurance (6th ed. 1961) .............  13
H. Moir, S ources and Characteristics of the P rin­

cipal Mortality T ables (1919) ................................  17
Myers, Forum: Pension Benefits and Sex, 9 Civil

R ights D igest 45 (1977) ............ ...............................47,49
N.Y.S. Commission Against Discrimination, Interpre­

tive Rulings, CCH E mpl. P rac. Guide 1126,053
(superseded) .......................... ..................................... 30

N.Y.S. Insurance Dept., Matter of Alleged Violations 
of Article IX-D of the Insurance Law; Opinion and 
Report Pursuant to Section 278 of The Insurance
Law at 3-4 (Jan. 28, 1975) .........................................  11

Oregon Attorney General, Opinion No. 6982 (May 23,
1973)       U

B. Schlei & P. Grossman, E mployment D iscrimination

L aw  1161-62 (1976) ....................................................  16
P. Shepherd & A. Webster, S election of R isks (1957) 44 
Transactions of the  S ociety of A ctuaries, 1971 Re­

ports of Mortality and Morbidity Experience, “Mor­
tality Under Standard Ordinary Insurance Issues
Between 1969 and 1970 Anniversaries” ..................... 1<

T ransactions of the S ociety of A ctuaries, 1975 Re­
ports of Mortality and Morbidity Experience, “Mor­
tality Under Standard Ordinary Insurance Issues
Between 1973 and 1974 Anniversaries” ....................  1?

United Nations, D emographic Y earbook 1970 (1971) .... 1< 
2 U.S. Dep’t of HEW, V ital S tatistics of the U nited

S tates, 1971 .....   17,18
U.S. EEOC 1st A nnual  R eport, H.R. D oc. No. 86, 90th

Cong., 1st Sess. (1966) ............................................. 32,33
U.S. EEOC, F irst A nnu al  D igest of L egal I nterpre­

tations, July 2, 1965 through July 1, 1966 ............. 34,35
Wash. Attorney General, Opinion AGO 1973 No. 21 . 

(Oct. 11, 1973) .............................................................  11

PAGE



I n' t h e

§upr£ttt£ GJmtrt of the Utiitpfr States
O ctober T e r m , 1976

No. 76-1810

C it y  of  L os A n g e l e s , D e p a r t m e n t  of 
W ater  and  P ow er , et al.,

Petitioners,

M arie  M a n h a r t , et al.,
Respondents.

on writ of c e r t io r a r i to  t h e  u n it e d  s t a t e s  c o u r t  o f  a p p e a l s

FOR THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF AMERICAN COUNCIL 
OF LIFE INSURANCE ON BEHALF 

OF PETITIONERS

Interest of the Amicus

The American Council of Life Insurance is a trade asso­
ciation consisting of 471 life insurance companies, including 
most of the major life insurers in the United States. Its 
members, collectively, have in force approximately 92% 
of the life insurance written in the United States, and hold 
99% of the assets of insured pension plans.

Because of the nature of the business of its members, 
the Amicus is particularly qualified to offer to this Court 
hs expertise in the significant actuarial and insurance- 
related issues which underlie this case, and to describe

559



2

the impact this Court’s decision could have on the basic 
structure of the American life insurance industry.

The Amicus and one of its predecessors, the American 
Life Insurance Association, have participated in a number 
of insurance-related cases before this Court in recent years.
E.g., Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737 
(1976) .; General Electric Co. v. Gilbert, 429 U.S. 125 (1976); 
Commissioner of Internal Revenue v. Standard Life & Acci­
dent Insurance Co.,----- - U.S. ——, 97 S. Ct. 2523 (1977).

SUMMARY OF ARGUMENT

This case poses a question of alleged sex discrimination 
under Title YII of the Civil Rights Act of 1964, which 
defies analysis in traditional terms. It presents the di­
lemma of reconciling traditional approaches to claims of 
discrimination, normally oriented toward individuals, with 
insurance concepts that, by definition, are founded upon 
group experience.

The conduct at issue—a requirement that female em­
ployees pay a greater amount than males for equal peri­
odic pension benefit payments (and its correlative, the 
payment by an employer of unequal amounts to obtain 
such equal benefit payments) is, in an economic sense, 
wholly non-discriminatory; the difference in the total dollar 
value of the benefits received by female employees from 
that received by male employees justifies the difference in 
employee contributions. The distinction involved, while 
correlated with sex, is based upon a neutral factor: life 
expectancy. It is neither a baseless stereotype—sex-cor-

560



3

related differences in life expectancy have long been docu­
mented in the actuarial literature—nor is it based upon 
a preconception of the appropriate role of the female 
worker, which has the effect of impeding her entry into, 
and advancement within the work force.

While this lawsuit arises under Title VII, that statute, 
properly construed, does not require that real differentials 
in life expectancy be ignored in establishing contributions 
to pension plans. “Sex-segregated” actuarial tables are in 
widespread use both by government and private industry. 
They were in use as well at the time of the enactment of 
Title VII. To overturn these long-standing actuarial and 
insurance practices would incorrectly attribute to Congress 
an intention supported neither by logic nor by the meager 
legislative history of Title VII. By subordinating Title VII 
to the Equal Pay Act and interpretations under that stat­
ute, Congress made clear its intention to permit sex-related 
distinctions such as the one at issue in this case.

The majority decision below, if sustained by this Court, 
.will have an impact far beyond merely preventing an em­
ployer from requiring unequal insurance contributions 
from his male and female employees. In the guise of an 
interpretation of an anti-discrimination statute, it could 
indirectly impose on the insurance industry a new federal 
actuarial rule requiring the utilization of “unisex” actuarial 
tables. This would seriously disrupt the life insurance and 
Pension industry in the United States, potentially costing 
employers billions of dollars annually. It would raise diffi­
cult questions concerning annuities already purchased and 
pension and insurance plans already bargained for. More­
over, given the undeniable differential in male versus

561



4

female mortality, rates based upon “unisex” tables will be 
inherently unstable. In the ease of annuities, the unisex 
rate will tend to rise to the level of the rate now charged 
for female employees; in the case of life insurance, the 
unisex rate will tend to rise to the level of the rate now 
charged for male employees. The net result may well be 
increased costs and a reduction in insurance coverage avail­
able for all employees.

THE DECISION BELOW

In its 2-1 decision, dated November 23, 1976, amended 
December 23, 1976 and May 5, 1977, the Ninth Circuit 
affirmed the granting of summary judgment to the plain­
tiffs (Respondents here). It approved the district court’s 
ruling that the retirement plan of the City of Los Angeles 
Department of Water and Power (the “Department”) vio­
lated Title VII of the Civil Rights Act of 19641 by requiring 
female employees to make larger contributions than male 
employees for their respective pension benefits.1 2 The judg­
ment enjoined the plan from requiring larger contributions 
from females, and ordered the plan to refund “excess con­
tributions” collected on or after the date Title VII became 
applicable to municipal employers.3

Petitioners had claimed that while women were required 
to make larger pension contributions than men, this was

1 78 Stat. 253, as amended by the Equal Opportunity Act of 
1972, 86 Stat. 103, 42 U.S.C. §§ 2000e et seq.

2 Manhart v. City of Los Angeles, Dep’t of Water and Pou>ffi 
553 F.2d 581 (9th Cir. 1976), cert, granted, 46 U.S.L.W. 3214 
(U.S. Oct. 3, 1977).

3 Appendix at 134-35 (hereinafter “App. _ ”).

5 6 2



5

a distinction based on longevity, not sex, and therefore 
did not violate Title VII. The Ninth Circuit held, how­
ever, that because the unequal pension contributions re­
quired of female employees were based upon the “average” 
experience of the group, rather than being measured indi­
vidually, they were illegal. It relied upon the rule enun­
ciated in Griggs v. Duke Power Co., 401 U.S. 424, 436 
(1971) that employers were required “to make job-related 
decisions about each employee on the basis of relevant in­
dividual characteristics, so that the employee’s membership 
in a racial, ethnic, religious, or sexual group is irrelevant 
to the decisions.” 4 The Court of Appeals rejected peti­
tioners’ claim that the Bennett Amendment,® included in 
Title VII to prevent conflicts between that statute and the 
Equal Pay Act of 1963,6 permitted the differential in con­
tributions by employees. Moreover, it declined to defer 
to the interpretations of the Department of Labor Wage- 
Hour Administrator and followed, instead, EEOC guide­
lines similar to those rejected by this Court’s decision in 
General Electric Co. v. Gilbert, 429 U.S. 125 (1976) 
(“General Electric” ).

In response to a request for a rehearing or rehearing 
«  banc in light of the decision in General Electric, the 
court adhered to its prior decision. Judge Kilkenny, based 
upon a careful analysis of the General Electric decision, 
dissented. *

*553 F,2d at 585.
5Civil Rights Act of 1964, Sec. 703(h), 42 U.S.C. § 2000e-2(h). 
'29 U.S.C. § 206.

563



6

A R G U M E N T

DISTINCTIONS BETWEEN MALES AND FEMALES 
BASED UPON LIFE EXPECTANCY ARE NOT 

DISTINCTIONS ON ACCOUNT OF SEX

Respondents claimed, and the court below held, that the 
Department discriminated on the basis of sex by requiring 
female employees to make larger pension contributions 
than male employees, in order to obtain equal pension bene­
fits. When employer pension contributions were consid­
ered, however, the fact is that the Department’s female 
employees received more in additional employer contribu­
tions than the amount of the “excess” contributions they 
were required to make.7 In any event, however, the thresh­
old question to be resolved is whether a distinction between 
male and female employees based upon differences in an­
ticipated life expectancy constitutes discrimination on 
account of sex.8 We submit that the answer is “no”.

This Court, in its decision in General Electric, has im­
plicitly recognized that actuarially valid factors such as life 
expectancy can constitute a basis for differentiation be-

7 The record showed that female employees contributed more 
than male employees, but that the Department’s contributions per 
female employee likewise were larger than its contributions on 
account of a similarly situated male. The evidence further showed 
that the additional sum contributed by a female employee was 
ahvays less than the amount by which the contribution of the 
Department for the female employee exceeded the contribution 
for a similarly situated male employee. (App. 86).

8 See General Electric, at 136; Espinoza v. Farah Mfg■ So., 
414 U.S. 86, 95 (1973) ; Willingham v. Macon Tel. Publishing Co., 
507 F.2d 1084, 1088 (5th Cir. 1975) {en banc).

564



7

tween male and female employees, without constituting sex 
discrimination. There, the employer had been charged with 
sex. discrimination for providing disability insurance cov­
erage which excluded benefits for a specific risk: pregnancy. 
Despite the fact that this particular risk was correlated 
100% with members of one sex, this Court held, in effect 
that the employer had made a lawful distinction on the 
basis of a cause of disability. It rejected the simplistic 
contention that this 100% correlation constituted sex dis­
crimination, either on its face, or because of its “disparate 
effect” on women. Quoting from its decision in Geduldig 
'i. Aiello, 417 U.S. 484 (1974), this Court noted:

“.‘There is. no evidence . . . that the selection of the risks 
insured by the program worked to discriminate against 
any definable group or class in terms of the aggregate 
risk protection derived by that group or class from the 
program. [417 U.8.] at 496-497” ’9 (emphasis sup­
plied).

This Court then proceeded to examine the statistical and 
actuarial evidence in the record in General Electric, which 
demonstrated that, based upon its actual experience, the 
cost to General Electric of providing sickness and accident 
disability insurance was substantially greater, on the aver­
age, per female employee than per male employee. Accord- 
iagly, the majority opinion declared:10 * •

8 General Electric, at 135.

f nn.9, 10. The lower court had expressly declined
c nna that “the present, actuarial value of the coverage was equal 
as between men and women,” (429 U.S. at 131) but stated that 
even had it found economic equivalence, such a finding would

• • ■ have justified the exclusion of pregnancy related disabil­
ities from an otherwise comprehensive . . . plan.” (Id. at 130-31).

565



8

“Whatever the ultimate probative value of the evidence 
. . .  on this subject . . .  at the very least it tended to 
illustrate that the selection of risks covered by the 
Plan did not operate, in fact, to discriminate against 
women . . . .  [W] e start from the indisputable baseline 
that ‘[t]he fiscal and actuarial benefits of the program 
. . . accrue to members of both sexes,’ . . . .

* # *

The Plan, in effect . . .  is nothing more than an insur­
ance package, which covers some risks, but excludes 
others . . . .

*  #  #

As there is no proof that the package is in fact worth 
more to men than to women, it is impossible to find 
any gender-based discriminatory effect in this scheme 
. . . . ” (footnote omitted).11

Obviously, when this Court considered whether the insur­
ance plan was “worth more to men than to women” it was 
not focusing upon any individual complainant.11 12 Instead, 
its analysis focused upon the actuarial experience of the 
group, and the value of the coverage to the average male 
or female employee'.

“Absent proof of different values, the cost to ‘insure’ 
against the risks is, in essence, nothing more than extra 
compensation to the employees, in the form of fringe

11 Id. at 137-38.
12 An eight-month pregnant female employee in obviously good 

health who would not receive coverage for her pregnancy and who 
was unlikely to require coverage for other causes of disability might 
indeed have found that the disability benefit coverage was “worth 
less to her than to a man about to go into the hospital for a com­
plicated operation.

566



9

benefits. If the employer were to remove the insurance 
fringe benefits and, instead, increase wages by an 
amount equal to the cost of the ‘insurance,’ there would 
clearly be no gender-based discrimination, even though 
a female employee who wished to purchase disability 
insurance that covered all risks would have to pay more 
than would a male employee who purchased identical 
disability insurance, due to the fact that her insurance 
had to cover the ‘extra’ disabilities due to pregnancy. 
While respondents seem to acknowledge that the fail­
ure to provide any benefit plan at all would not con­
stitute sex-based discrimination in violation of Title 
VII, see n. 18, infra, they illogically also suggest 
that the present scheme does violate Title VII because 
‘a female must spend her own money to buy a personal 
disability policy covering pregnancy disability if she 
wants to be fully insured against a period of disability 
without income, whereas a male without extra expendi­
ture is fully insured by GE against every period of 
disability.’ Supplemental Brief for [Martha Gilbert 
et al.] on Reargument 11. Yet, in both cases—the 
instant case and the case where there is no disability 
coverage at all—the ultimate result is that a woman 
who wished to be fully insured would have to pay an 
incremental amount over her male counterpart due 
solely to the possibility of pregnancy-related disabili­
ties. Title VII’s proscription on discrimination does 
not require, in either case, the employer to pay that 
incremental amount. The District Court was wrong in 
assuming, as it did, 375 F. Supp., at 383, that Title 
VII’s ban on employment discrimination necessarily 
means that ‘greater economic benefit\s]’ must be re­
quired to be paid to one sex or the other because of

5 6 7



10

their differing roles in ‘the scheme of human exist­
ence.’ ” 13

As will be discussed below,14 the EEOC,16 the Department 
of Labor and the Department of Health, Education and 
Welfare all have construed statutes or regulations pro­
hibiting sex discrimination, to permit an. employer to pay 
an equal amount on behalf of each male and female em­
ployee for fringe benefits, even where that payment re­
sulted in unequal benefits being received by male and 
female employees.16 This “equal payments” rule implicitly 
recognizes that, where the present value of the anticipated 
benefits to be received by members of one sex is equal to 
the present value of anticipated benefits to be received by 
similarly situated members of the other sex, no discrimina­
tion exists even though the periodic benefits to be received 
differ. These interpretations serve as an important indi­
cator of the understandings of the agencies, and indeed, 
the federal government, as to the existence or non-existence 
of sex discrimination in the context of insurance and pen­
sion benefits.

Various state administrative agencies have likewise con­
cluded that actuarial distinctions in insurance and pension

13 General Electric, at 139 n.17 (emphasis supplied).
14 See infra at 30-34.
16 The EEOC subsequently repudiated its original position. See 

infra at 34.
16 This principle has been applied in connection with life insur­

ance benefits (where equal contributions will purchase a greater 
amount of life insurance coverage for a female than for a male, 
because of the longer female life expectancy), pension and annuity 
benefits (where the longer female life expectancy results in receipt 
of a lower periodic pension payment), and medical expense and 
disability insurance benefits (where the policy provided coverage 
for all causes of male disability, but excluded one cause of female 
disability—pregnancy).

5 6 8



11

plans do not constitute sex discrimination. For example, 
the Oregon Attorney General examined a state pension 
plan based upon sex-segregated actuarial tables and found 
it in compliance with state and federal law; the Washington 
State Attorney General ruled that insurers did not violate 
the state’s anti-discrimination law by continuing to charge 
different premiums for males and females based upon life 
expectancy.17

The New York State Superintendent of Insurance issued 
an opinion and report relating to whether underwriting 
practices which make distinctions based on the sex of the 
applicant or policyholder constitute unfair trade practices. 
The decision noted that, “ [m]ore often than not, [sex- 
based] .. . underwriting distinctions emanate from unjusti­
fied subjective views of the role of women in our society,” 
and ruled that “all underwriting distinctions based on sex 
... constitute an unfair trade practice under . . . [the New 
York] Insurance Law.18 However, recognizing the validity 
of actuarial distinctions, the Superintendent expressly au­
thorized “rate differentials .. . when supported by objective 
and valid statistical data.” 19

17 Oregon Attorney General, Opinion-No. 6982 (May 23, 1973) ; 
Wash. Attorney General, Opinion AGO 1973 No. 21 (Oct. 1L 
1973).

18 N.Y.S. Insurance Dep’t, Matter of Alleged Violations of Arti­
cle IX-D of the Insurance Law, Opinion  and R eport P ursuant to 
section 278 op th e  I nsurance L aw at 3-4 (Jan. 28, 1975).

19W at 4, n.4. The decision went on to explain that the ban 
on underwriting distinctions based on sex:

does not mean that insurers cannot sell coverages that provide 
different but actuarially equivalent benefit levels for males 
and females when a customer requires stick coverage to avoid 
employment discrimination problems.” (emphasis supnliedt 
{Id. at 4, n.4).

5 6 9



1 2

Thus, this Court, as well as federal and state officials 
concerned with enforcement of anti-discrimination and in­
surance laws, have concluded that differences in insurable 
risks as between male and female employees, even though 
correlated with sex, stand as independent, lawful bases for 
distinguishing among employees.

TITLE VII DOES NOT PROHIBIT DISTINCTIONS 
BETWEEN MALE AND FEMALE EMPLOYEES 

BASED UPON LIFE EXPECTANCY

Even if a distinction between male and female em­
ployees on the basis of their respective life expectancies 
constitutes a gender-based distinction, we submit that this 
distinction does not constitute a discrimination on account 
of sex prohibited by Title VII. This follows from the in­
appropriateness of testing compliance of insurance and 
pension benefit programs against standards for determin­
ing the existence of sex discrimination which are oriented 
toward individuals, a lack of any legislative intent to reject 
the use of sex-segregated actuarial tables, and the con­
trolling effect of the Equal Pay Act under which the use 
of such actuarial tables is permissible.

A. Traditional Title VII Tests Of Sex Discrimination 
Cannot Meaningfully Be Applied To Valid Actuarial 
Distinctions In Insurance And Pension Benefits

To understand the anomaly of attempting to apply tradi­
tional Title VII tests to insurance coverage offered em­
ployees as fringe benefits, requires an understanding of the 
nature and purposes of insurance.

5 7 0



1 3

Insurance serves two principal purposes:20 (1) to reduce 
uncertainty as to the financial aspects of the risks21 insured 
against, so that the insured, by paying a known premium 
ean avert ultimate liability which he would face absent in­
surance against a given risk; and (2) to spread the eco­
nomic burden of losses22 among members of a group. The 
process by which these objectives are reached is the actu­
arial underwriting of the risk based upon experience, 
coupled with statistical assumptions as to such factors as 
interest rates applicable to monies paid in through insur­
ance premiums. Those result in the computation of pre­
mium charges sufficient to fund anticipated losses, and pay 
such expenses as may be involved.23

Of course, if it were possible to know with certainty when 
a particular person will die, or will experience the particu­
lar loss insured against, then the insurer would simply 
charge premiums equal to the amount necessary to accumu­
late the policy benefit by the date of the loss. In short, 
insurance would be unnecessary since the insured could 
take the same amount of money and put it into savings.

Faced with an uncertain risk, the insured and the insurer 
are forced to make predictions as to when the loss will be 
experienced. However, because the insurer makes its pre­
dictions in gross, their positions differ significantly:

a See J. Athearn, R isk  and I nsurance at 28 (2d ed. 1969) ; 
J-Magee, General I nsurance 75-76 (6th ed. 1961).

21 In insurance terms, a “risk” may be defined as the uncertainty 
of the happening of an unfavorable contingency. The term is also 
applied to the subject of the uncertainty (i . e to insure the life 
of a terminally ill person is a “bad risk”). See J. Magee, supra 
n-20, at 76-77; J. Athearn, supra n.20, ch. 1.

22 A “loss” is the happening of the unfavorable contingency. 
"• Athearn, supra n.20, at 4.

25 See generally, J. Athearn, supra n.20, chs. 1,2.

571



14

“The fundamental difference between the insurer 
and the insured is in predicting future events. So far 
as an individual insured is concerned, the insurer has 
no greater ability to predict than does the insured. 
The insurer, however, does not have to make the same 
prediction as the insured. The latter must predict what 
will happen to him as an individual. The insurer, on 
the other hand, makes predictions with regard to all 
insureds as a group. When a large number of risks is 
combined into a group, the risk faced by the insurer 
is not the same as that to which the insured is exposed 
nor is it merely the sum of the risks of all members 
of the group. The difference between the insurer which 
assumes a risk and the insured who transfers it lies in 
the fact that the former can make more accurate and 
reliable predictions with regard to its risk.

# # #

An insurer which assumes risks does so with the ex­
pectation of substituting average losses for actual 
losses, thus bringing certainty to insureds. Because 
the funds which are used to pay for losses suffered by 
insureds are typically collected from members of the 
group in advance, the insurer must be able to predict 
losses accurately. The fee (premium) charged for as­
suming a risk is based on such predictions and the 
predictions, in turn, are based on probability esti­
mates.” 24

Thus, the fundamental principles of insurance are di­
rected toward shifting economic risks of loss from an indi­
vidual to a group. This was expressly recognized by the 
district court. It held, however, that since an individual

24 J. Athearn, supra, n.20, at 30-31.

572



15

female employee’s contribution was linked to the “stereo­
typed” experience of an “average” woman, rather than that 
of the employee herself, the Department’s pension plan 
violated Title VII.25

The only case cited by the majority below in support of 
this proposition was Griggs v. Duke Power Co., 401 U.S. 
424,436 (1971). The District Court, in its decision granting 
plaintiffs’ motion for a preliminary injunction, addition­
ally had cited Phillips v. Martin Marietta Corp., 400 U.S. 
542 (1971); Rosenfeld v. Southern Pacific Co., 444 F.2d 
1219 (9th Cir. 1971); Sprogis v. United Air Lines Inc., 444
F.2d 1194 (7th Cir.), cert, denied, 404 U.S. 991 (1971); and 
Willingham v. Macon Telegraph Publishing Co., 482 F.2d 
535 (5th Cir. 1973).26 The Court of Appeals candidly ad-

25 The court below recognized the fundamental conflict presented 
by this case:

“The problem raised by this case is unique. There have been 
two basic policies which have guided the courts in prior Title 
VII litigation: (1) the policy against attributing general 
group characteristics to each individual member of the group, 
the major thrust of the statute, and (2) the policy allowing 
relevant employment factors to be considered in differentiat­
ing among individuals.

*  #  #

In the present case a relevant characteristic in determining 
how large an individual’s retirement contribution should be is 
an informed prediction as to how long the person will live. 
But this characteristic, unlike those in the prior cases, is 
impossible to determine on an individual basis at the time 
when the contribution must be made. Thus, the policy of al­
lowing relevant factors to be considered can be met only 
by allowing the group longevity statistics to be attributed to 
the individual members of the group. Yet this is exactly what 
tne thrust of Title V II prohibits. We are therefore faced 
with_ the unique case in which the policy against per se dis­
crimination . directly conflicts with the policy of allowing 
relevant factors to be considered.” (553 F.2d 581, 586).
^ a* *Jiart v- City ° f Los Angeles, Dep’t of Water and Power, 

d87 F- Supp. 980, 983 (C.D. Cal. 1975).

573



16

mitted the inapplicability of cases such as Rosenfeld, 
Sprogis and Phillips:

“An important basis of [the Ninth Circuit’s decision in 
Rosenfeld] . . . was the fact that each individual appli­
cant could actually be tested to see whether the rele­
vant characteristic . . . was or was not in fact lacking.

This same consideration has been present in [inter 
alia, the Sprogis, and PhillipsY’ cases . 27 28

The Willingham case was subsequently reversed en 
banc.2* This Court’s decision in Griggs indicated that the 
practices there challenged—requirement of a high school 
diploma, or a passing score on an intelligence test—were 
unacceptable because neither was “shown to bear a demon­
strable relationship to successful performance of the jobs 
for which [they were] used.” 30 As will be shown below,

27 This Court’s per curiam opinion in Phillips did not hold that 
the company’s refusal to hire females with pre-sehool-age children 
necessarily violated Title V II ; the Court stated that the existence 
of “conflicting family obligations, if demonstrably more relevant 
to job performance for a woman than for a man, could arguably 
be a basis for distinction under [the ‘bona fide occupational quali­
fication’ exception to Title V II]”, and remanded the case for 
further evidence. (Phillips v. Martin Marietta Corp., supra, 40" 
U.S. at 544).

28 553 F.2d at 586.
29 507 F.2d 1084. (5th Cir. 1975).
30 401 U.S. at 431. Ironically, Griggs, cited by the majority for 

the principle that Title VII requires employers to treat employees 
on an individual basis, has emerged as the preeminent authority 
for the use of group statistics to establish a prima facie case of 
discrimination. See B. Schlei & P. Grossman, E m p l o y m e n t  D i s ­

c r i m i n a t i o n  L aw 1161-62 (1976).
Having approved the use of group statistics as a valid means 

of demonstrating the existence of discrimination against an indi­
vidual, this Court is now being asked to condemn their use as 
evidence that no discrimination, in fact, exists.

574



17

the use of sex-segregated mortality tables is demonstrably 
related to prediction of male and female life expectancy.

Thus, none of the cases cited in support of the majority 
decision below presented the issue before this Court. The 
only decision which expressly considered the application of 
Title VII in an insurance/aetuarial context was this Court’s 
decision in General Electric.

Unlike the stereotypes, which have been condemned by the 
courts, the existence of the differential between male and 
female life expectancy* 31 has not been questioned, nor has 
its statistical significance been challenged. Sex-segregated 
actuarial tables have been in use at least since 184332 and 
the difference has been corroborated in literally hundreds 
of tables compiled by government33 and private industry.34 
In fact, recent evidence indicates that the disparity between 
male and female life expectancy is increasing; the disparity,

51 According to data through 1975, female life expectancy at age 
65, for example, is 4.3 years longer than male life expectancy. 
American Council of Life Insurance, L ife I nsurance F act B ook 
’77 at 92 (hereinafter “ F a c t  B ook” ).

32 H. Moir, Sources and Characteristics of the P rincipal 
Mortality Tables 10, 14 (1919).

13 See, e.g., 2 U.S. Dep’t of HEW, V ital Statistics o f  the 
United States, 1971, §5 at 5-3 to 5-10; United Nations, D emo­
graphic Yearbook 1970 710-729 (1971).

3i See, e.g., F act B ook at 91-92; Transactions of th e  Society 
op Actuaries, 1975 Reports of Mortality and Morbidity Experi- 
ence, “Mortality Under Standard Ordinary Insurance issues Be­
tween 1973 and 1974 Anniversaries”, 1, 15-20; Transactions of
t h e  Society of A ctuaries, 1971 Reports of Mortality and Mor-
mity Experience, “Mortality Under Standard Ordinary Insurance 

Between 1969 and 1970 Anniversaries”, 18-22; Cherry,
the 1971 Individual Annuity Mortality Table”, 23 Transactions 

gf t h e  Society o f  A ctuaries 475-546."

575



18

which was 3.3 years at age 65 in 1965, had increased to 4.3 
years, in 1975.35 36

Moreover, unlike role stereotypes such as those at issue 
in the Phillips v. Martin Marietta Corp. or Rosenfeld v. 
Southern Pacific Co. cases, where it was possible for an em­
ployer to evaluate individual female applicants to deter­
mine whether the stereotype characterization was valid, 
there is no way to determine the life expectancy of an in­
dividual, or to correct a mistake in predicting it.38

As will be described in the concluding point of this brief, 
the decision which this Court reaches as to the appropriate 
test to be applied under Title VII to insurance and pension 
benefits, will have an enormous impact on the employers, 
Covered employees, and insurers of the United States. We 
submit that Title VII must be construed in a reasonable 
manner to accord with both economic and demographic 
reality. While the decision of the District Court stated that 
“stereotypic” distinctions based on sex, “whether rational 
or irrational,” 37 are condemned, this Court should construe 
Title VII to permit the rational; and not to require the ir­
rational.

35 2 U.S. Dep’t  of HEW, V it a l  S t a t is t ic s  o f  t h e  U n ited  S tates 
1965, § 5 at 5-10; P a ct  B ook at 92.

36 While, theoretically, it would be possible to subject each appli­
cant for an annuity to a rigorous physical examination and a 
detailed investigation of social habits and environmental factors, 
all of which would be relevant in predicting that applicant’s life 
expectancy, this would refine the prediction, but would not convert 
the prediction into a certainty. The cost of such underwriting 
procedures would, moreover, make the insurance coverage pro­
hibitively expensive.

37 Manhart v. City of Los Angeles, Dep’t of Water and Power,
supra, 387 F. Supp. at 984.

5 7 6



19

B. Title VII D oes N ot P ro h ib it D istinctions In Insurance
And Pension  P lans B etw een  Male A n d  F em ale
Em ployees B ased  O n V alid  D ifferences In
Life E xpectancy

Pension plans are customarily classified as either “de­
fined benefit” or “defined payment” plans.38 Under the 
former, the periodic benefit to be received by each employee, 
or the method of determining the benefit,39 is specified in the 
pension plan (e.g., $100 per month for life). Contributions 
are made by the employer and possibly the employee ac­
cording to computations40 designed to provide for the fund­
ing of the anticipated pension liability plus the attendant 
administrative and other costs. Under a “defined payment” 
plan, the employer pays a specified amount, and the periodic 
benefits payable to the employee upon retirement are based 
upon the amount of money accumulated to the time that 
benefits commence.41

Thus, in a defined payment plan, if a male and female em­
ployee, each age 35, work for 30 years before retirement, 
and have contributed on their behalf $l,000/year, at the 
date of retirement, each will have accumulated $30,000 plus 
earnings on that amount. If, according to the plan, this 
fund is converted into a life annuity upon retirement, the

38 See E. H ick s, A c c o u n t in g  fo r  t h e  C o st  o f  P e n s io n  P l a n s  a t  
142 (1965).

39 The formulas often compute benefits according to an em­
ployee’s length of service and salary prior to retirement.

40 Such computations are predicated upon actuarial predictions 
as to matters such as the period over which the benefits will be 
paid (often the life of the insured or the insured and spouse) and 
the rate of return which can be earned on the premium contribu­
tions made.

41A variant of this is the “profit-sharing” plan where the amount 
Paid in is computed according to a formula keyed to the employer’s 
annual profits.

5 7 7



2 0

female employee would find that she would receive a 
monthly payment of approximately $622 while her male 
counterpart would receive approximately $730. At age 65 
the life expectancy of females would be 19.2 years while the 
life expectancy of the male would in fact he 15.1 years.42 
The periodic payments received by female employees would 
be lower than those received by males, because the female 
employees would on the average, receive the payments over 
a longer period. In actuarial terms, however, the “value” 
of the benefits received by both male and female em­
ployees is the same.43

42 This is only one of the various options which may be incorpo­
rated in any given plan. Some plans give the employee the right 
to take out, in a lump-sum payment, all or a portion of the accumu­
lated fund. Other options which may be incorporated include 
annuities for a fixed period of time or annuities for the life of 
the employee and a survivor such as the spouse. Where a survivor 
option is elected, i.e., the employee elects to take a reduced pension 
for the remainder of his or her life, with a periodic benefit to be 
paid to a designated survivor, a male employee suffers a greater 
reduction in the level of his periodic pension payments because of 
the higher likelihood that he will be survived by his spouse.

Inclusion of one or more options in the plan greatly complicates 
computation of the effect of a change in the basis for charging 
premiums since assumptions must be made as to which options 
may be selected by insureds at the time of their retirement.

Annuity figures are based on the 1971 Group Annuity Mortality 
Tables and six percent interest. The life expectancy figures are 
based on the same Mortality Tables.

43 The concept of “value” in an actuarial sense was expressly 
considered by this Court in lihaca Trust Co. v. United States, 
279 U.S. 151 (1929). There, an estate attempted to deduct the 
value of property subject to a life estate of a widow. The issue 
presented was whether the “value” was that computed according 
to mortality tables “showing the probabilities on the day that the 
testator died” (279 U.S. at 155) or the value based upon actual 
circumstances—the widow had died within months of the death 
of the testator. Justice Holmes stated:

“ [TJhe value of property at a given time depends upon the 
relative intensity of the social desire for it at that time, ex­
pressed in the money it would bring in the market. Like all

5 7 8



2 1

Conversely, under a defined benefit plan it is necessary 
for the employer to contribute a higher amount on behalf 
of a female employee, in order for a sufficient amount of 
money to have been accumulated to provide periodic pay­
ments equal to those of a similarly situated male employee. 
This is the inevitable consequence of the longer period dur­
ing which it is anticipated that payments will be made to the 
female.

Obviously, under a simplistic analysis, either one of these 
types of plans could theoretically expose an employer to a 
claim of discrimination. Under the defined payment alter­
native, he would be providing a lower level of periodic bene­
fit payments upon retirement to his female employees than 
to his male employees. Under the defined benefit approach, 
he would be contributing, in hard cash, more money on be­
half of each female employee than each male employee.

In recognition of this, since 1964, the United States De­
partment of Labor has consistently taken the position that, 
under the Equal Pay Act, an employer does not discrimi­
nate in providing fringe benefits to his employees where he 
complies with either the “equal payments” test, (i.e., where 
an employer spends an equal amount for male and female 
employees to provide benefits, despite the fact that the 
periodic benefits purchased are unequal) or the “equal 
benefits” test (i.e., where the periodic benefits provided to

values, as the word is used by the law, it largely depends on 
more or less certain prophecies of the future; and the value 
is no less real at that time if later the prophecy turns out 
false than when it comes out true. Important as it is to correct 
certain improbabilities by the now certain fact, we are of 
opinion that it cannot be done, but that the value . . . must 
be estimated by the mortality tables.” (citations omitted) 
(Id. at 155).

579



2 2

male and female employees are identical, regardless of 
whether it costs more to purchase the benefits for members 
of one sex).

The rationale of this determination supports the practice 
challenged in the instant lawsuit, and, by reason of the 
Bennett Amendment,44 stands as a bar to liability under 
Title VII. It is also persuasive evidence that Title VII, 
properly construed, does not prohibit the insurance and 
pension practices here at issue. The Equal Pay Act pro­
hibits an employer to “discriminate . . .  on the basis of sex”; 
similarly, Title VII forbids an employer from “discriminat­
ing against any individual . . . because of such individual’s 
. .. sex . . . . ” 45 As this Court noted in the General Electric 
case, the Department of Labor’s interpretation comports 
both with “what seems . . .  to be the ‘plain meaning’ of the 
language used by Congress when it enacted §703(a)(l)”, 
and “what the concept of discrimination has traditionally 
meant . . . . ” 46

While the legislative history of the Title VII prohibition 
of sex discrimination has been characterized as “notable 
primarily for its brevity”,47 the same factor which this 
Court cited as significant in the General Electric decision- 
inclusion of the Bennett Amendment to require coordina­
tion of Title VII with the Ecpial Pay Act—indicates an in­
tention to permit actuarial differentiations such as those 
involved in this case. See discussion, infra, at 35-42.

44 Civil Rights Act of 1964, Sec. 703(h), 42 U.S.C. §2000e-2(h).
45 The Courts have noted that the Equal Pay Act and Title VII 

are in pari materia, and therefore they should be construed con­
sistently. E.g., Shultz v. Wheaton Glass Co., 421 F.2d 259, 2bo 
(3d Cir.), cert, denied, 398 U.S. 905 (1970).

4B General Electric, at 145 (citations omitted).
47 General Electric, at 143.

5 8 0



23

In addition to the Bennett Amendment, two other pieces 
of “formal” legislative history are of some relevance. Con­
gresswoman St. George, in discussing the inclusion of sex 
as a protected classification within Title VII, declared that 
women neither sought nor needed “special privileges”.’18 
Furthermore, Congresswoman Green, in her remarks, made 
clear that no consideration had been given in committee to 
problems which might arise by reason of biological differ­
ences between men and women.49 The failure to consider 
the impact of a generalized prohibition of sex discrimina­
tion upon insurance and pension plans, suggests that, in all 
likelihood, no sweeping change in practice was intended. 
See Willingham v. Macon Telegraph Publishing Co., supra, 
507 F.2d at 1090.

: Other than this limited legislative history, the only other 
available guideposts for determining the “legislative intent” 
underlying Title YII as applied to insurance and pension 
benefits, are the practices which prevailed throughout the 
government and the private sector both prior and subse­
quent to the enactment of Title YII.

The types of plans described above have been offered in 
the United States by employers and insurers since approxi­
mately 1875. The principles applicable to them have been 
widely understood.

The validity of using sex as a basis for the classification 
of risk has been recognized by the Federal Government and 
by almost every state.

Certain sections of the Internal Revenue Code and Treas­
ury Regulations specifically prescribe the use of sex-segre-

,8U0 Cong. Ree. 2581 (1964).
" HO Cong. Rec. 2584 (1964). .

581



24

gated actuarial tables. Regulations under Section 72 of 
the Internal Revenue Code,50 for example, require the com­
putation of “expected return” under annuity contracts 
based upon actuarial tables which are sex-segregated and 
involve a five-year differential between male and female life 
expectancy.51

Section 20.2031-10 of the Estate Tax Regulations52 53 pre­
scribes mortality tables differentiated on the basis of sex 
to be used in valuing non-commercial annuities, life inter­
ests and remainders. These tables have been incorporated 
by reference into the tax schemes of numerous states.55

The recently created Pension Benefit Guaranty Corpora­
tion created by the Employee Retirement Income Security 
Act of 197454 prescribes sex-segregated actuarial tables to 
be used in valuing plan benefits upon pension plan termina­
tion.55

These practices of the Federal Government stand as per­
suasive evidence that Congress could not have intended to

50 I n t . R ev. Code o f  1954, §72; Treas. Reg. §1.72-5 (1956).

51 Treas. Reg. §1.72-9 (1956).
52 Treas. Reg. §20-2031-10(f) (1970).
53 Ala. Code tit. 51, §432 (1958); Alaska Stat. §43.31.011 

(1977); Cal. Rev. & T. Code §13953 (West Supp. 1974); 
Del. Code tit. 30, §1326 (1974) ; Fla. Stat. Ann. §198.02 (West 
1971) ; Ga. Code Ann. §92-3401 (1974) ; Ind. Code Ann. §6-41-1-5 
(Burns 1976) ; Md. Ann. Code art. 81, §160 (Supp. 1976); Mass. 
Ann. Laws. ch. 65, §13 (Miehie/Law Co-op Supp. 1976); Neb. 
Rev. Stat. §77-2008 (1976); N.H. Rev. Stat. Ann. §86:11 (Supp. 
1975); N.M. Stat. Ann. §72-33-3 (Supp. 1975); N.D. Cent. Code 
§57-37.1-03 (Supp. 1977); Or. Rev. Stat. §118.150 (1975); S.C. 
Code §12-15-40 (1976); Tex. Tax Code tit. 20A, §14.08 (1971); 
Utah Code Ann. §59-12A-3 (1977); Yt. Stat. Ann. tit. 32, §7442 
(1971) ; Wis. Stat. Ann. §72.28 (West 1972).

54 29 U.S.C. §1001 et seq. (Supp. Y. 1975).
55 40 Fed. Reg. 57980-82 (1975).

5 8 2



2 5

reject the use of sex-segregated actuarial tables when it 
enacted Title VII.

In Espinosa v. Farah Manufacturing Co., 414 U.S. 
86 (1973), this Court rejected an EEOC guideline under 
Title VII which purported to equate discrimination on ac­
count of citizenship with discrimination on account of na­
tional origin. Among the reasons for its decision was the 
fact that federal agencies themselves were utilizing the pre­
cise distinction which the EEOC sought to condemn:

“Since 1914, the Federal Government itself, through 
Civil Service Commission regulations, has engaged in 
what amounts to discrimination against aliens by deny­
ing them the right to enter competitive examination 
for federal employment . . . .  But it has never been 
suggested that the citizenship requirement for federal 
employment constitutes discrimination because of na­
tional origin, even though since 1943, various Execu­
tive Orders have expressly prohibited discrimination 
on the basis of national origin in Federal Government 
employment . . . .

*  *  *

Congress itself has on several occasions since 1964 
enacted statutes barring aliens from federal employ­
ment. The Treasury, Postal Service, and General Gov­
ernment Appropriation Act, 1973, for example, pro­
vides that ‘no part of any appropriation contained in 
this or any other Act shall be used to pay the compen­
sation of any officer or employee of the Government 
of the United States . . . unless such person (1) is a
citizen of the United States . . . . ’

*  *  *

583



2 6

To interpret the term ‘national origin’ to embrace 
citizenship requirements would require us to conclude 
that Congress itself has repeatedly flouted its own 
declaration of policy. This Court cannot lightly find 
such a breach of faith.” 56

See also Morton v. Mancari, 417 U.S. 535, 548-49 (1974).

Moreover, Congress must be presumed to have been 
aware of the practices of state governments and private 
industry when Title VII was enacted.” If it intended to 
effect a change in these policies, certainly it would have 
made its intention plain.58 For example, state statutes in 
effect in 1964, expressly prescribed sex-segregated actu­
arial tables in Arizona ;69 provided for their use in the de­
termination of value of future, contingent and limited 
estates in California;60 in the valuation of annuities in 
Iowa;61 and, as evidence of life expectancy in North 
Dakota.62

56 414 U.S. at 89-91 (citations omitted).
57 See, e.g., Espinoza v. Fardh Mfg. Co., 414 U.S. 86, 90-91 

(1973) ; American Fed’n of Musicians v. Wittstein, 379 U.S. 171 
(1964); Banes v. Office Employees In t’l Union, 317 F.2d 915, 
917-18 (7th Cir. 1963). See also Employers Mut. Liability Ins. 
Co. v. Arrien, 244 F. Supp. 110, 114 (N.D.N.Y. 1965).

58 See Banes v. Office Employees In t’l Union, 317 F.2d 915, 917- 
18 (7th Cir. 1963). See also cases, supra n.57.

59 Ariz. Rev. Stat., vol. 18, Table VIII, & Supp., Tables VIII-X, 
at 186-96 (West 1956 & Supp. 1977).

60 Cal. Rev. & T. Code §13953 (West Supp. 1976).
« Iowa Code Ann. §450.51 (West 1971) ; Iowa Code Ann., vol. 

58, at 287-92 (West Supp. 1977) [tables].
62 N.D. Cent. Code §31-08-05 (1976).

584



27

Nor did the enactment of Title VII alter the perception 
of state governments as to the propriety of using sex-based 
actuarial tables. State statutes relating to the valuation 
by insurers of life insurance and annuity liabilities for the 
purpose of computing required reserves are virtually 
unanimous in permitting the value of policies issued on 
female lives to be calculated based upon the mortality ex­
perience of males three years younger (i.e., a three-year 
“setback”) than the insured females.63

63 Ala. Code tit. 28A, §744 (Supp. 1973) ; Alaska Stat. §21.18.110 
(1962); Ariz. Rev. Stat. §20-510 (1975) ; Ark. Stat. Ann. §66-2511 
(1965); Cal. Ins. Code §§10485 and 10489.2 (West 1971) ; Col. 
Rev. Stat. §10-7-309 (1973); Conn. Gen. Stat. §38-130 (1975);
Del. Code tit. 18, §§1112 and 1113 (1974); D.C. Code Encyol.
§35-701 (West 1967); Fla. Stat. Ann. §625.121 (West 1972); 
Ga. Code Ann. §56-912 (1977); Haw. Rev. Stat. §431-269 (1968) ; 
Idaho Code §41-612 (1977) [6-year setback permitted] ; 111. Ann. 
Stat. eh. 73, §835 (Smith-Hurd 1965); Ind. Code Ann. §27-1-12-10 
(Burns 1975) ; Iowa Code Ann. §508.36 (West Supp. 1977) ; 
Kan. Stat. §40-409 (1973) ; Ky. Rev. Stat. §304.6-140 (1970) ; La.
Rev. Stat. tit. 22, §163 (West Supp. 1977); Me. Rev. Stat. tit.
24-A, §953 (1974); Md. Ann. Code art. 48A, §83 (1972); Mass. 
Ann. Laws ch. 175, §9 (Michie/Law Co-op 1977) ; Mich. Comp. 
Laws §500.834 (1970); Minn. Stat. Ann. §61A.25 (West 1968); 
Miss. Code Ann. §83-7-23 (1972) ; Mo. Ann. Stat. §376.380 (Vernon 
1968); Neb. Rev. Stat. §44-404 (1974) ; Nev. Rev. Stat. §681B.120 
(1973); N.H. Rev. Stat. Ann. §410.3 (1968); N.J. Stat. Ann. 
§17B:19-8 (West 1977) ; N.M. Stat. Ann. §58-7-5 (1962) ; N.Y. Ins. 
L. §205 (McKinney 1966 & Supp. 1976); N.C. Gen. Stat. §58- 
201.1 (1975) ; N.D. Cent. Code §26-10.1-02 (Supp. 1977) [6-year 
setback permitted] ; Ohio Rev. Code Ann. §3903.36 (Page 1971); 
Okla. Stat. Ann. tit. 36, §1510 (West 1976); Or. Rev. Stat. 
§733.130 (1975); 40 Pa. Stat. Ann §71 (Purdon 1971); S.C. Code 
§38-7-90 (1976) ; S.D. Compiled Laws Ann. §58-26-22 (1967) ; 
Tenn. Code Ann. §56-115 (1968); Tex. Ins. Code art. 3.28 (Vernon 
1963); Utah Code Ann. §31-22-14 (1974) ; Vt. Stat. Ann. tit. 8, 
3784 (1970); Va. Code §38.1-456 (1976); Wash. Rev. Code 
48.12.150 (1974) ; W. Va. Code §33-7-9 (1975); Wis. Stat. Ann. 

§206.201 (West Supp. 1977); Wyo. Stat. §26.1-104 (1957); cf. 
Mont. Rev. Codes Ann. §40-3011 (1961).

In 1977, Arkansas, Colorado, Illinois, Nevada, New Mexieo, New 
York, Oregon, South Dakota, Texas, West Virginia, and Wisconsin

585



Similarly, state “non-forfeiture” statutes, used to com­
pute paid-up non-forfeiture benefits and cash surrender 
values of policies where premium payments are in default, 
permit female mortality to be computed based upon a three- 
year setback from male experience.64

State insurance laws typically contain provisions pro­
hibiting discrimination in rates between similarly situated

28

joined Idaho and North Dakota in amending their valuation stat­
utes to permit a six-year setback. Similar amendments to their 
non-forfeiture statutes were enacted. See infra n.64.

84 Ala. Code tit. 28A, §373 (Supp. 1973); Alaska Stat. §21.45.300 
(1962) ; Ariz. Rev. Stat. §20-1231 (1975) ; Ark. Stat. Ann. §66- 
3327 (1965); Cal. Ins. Code §10163.5 (West 1971); Col. Eev. 
Stat. §10-7-309 (1973); Del. Code tit. 18, §2929 (1974); D.C. 
Code Encycl. §35-705b (West 1967) ; Fla. Stat. Ann. §627.476 
(West 1972) ; Ga. Code Ann. §56-2504 (1977); Haw. Rev. Stat, 
§431-561 (1968) ; Idaho Code §41-1927 (1977) [6-year setback per­
mitted] ; 111. Ann. Stat. ch. 73, §841.2 (Smith-Hurd 1965); Ind, 
Code Ann. §27-1-12-7 (Burns 1975) ; Iowa Code Ann. §508.37 
(West Supp. 1977); Kan. Stat. §40-428 (1973); Ky. Rev. Stat. 
§304.15-340 (1970); La. Rev. Stat. tit. 22, §168 (West Supp. 
1977); Me. Rev. Stat. tit. 24-A, §2532 (1974); Md. Ann. Code 
art. 48A, §414 (1972) ; Mass. Ann. Laws ch. 175, §144 (Michie/ 
Law Co-op 1977); Mich. Comp. Laws §500.4060 (1970); Minn. 
Stat. Ann. §61A.24 (West 1968) ; Miss. Code Ann. §83-7-25 
(1972) ; Mo. Ann. Stat. §376-670 (Vernon 1968) ; Mont. Rev. 
Codes Ann. §40-3831 (1961); Neb. Rev. Stat. §44-407.04 (1974); 
Nev. Rev. Stat. §688A.320 (1973) ; N.H. Rev. Stat. Ann. §409.5 
(1968); N.J. Stat. Ann. §17B:25-19 (West 1977); N.M. Stat. 
Ann. §58-8-3 (1962); N.Y. Ins. L. §208-a (McKinney 1966 & 
Supp. 1976) ; N.C. Gen. Stat. §58-201.2 (1975) ; N.D. Cent. Code 
§26-03.2-05 [6-year setback permitted] (Supp. 1977); Ohio Rev. 
Code Ann. §3915.07 (Page 1971) ; Okla. Stat. Ann. tit. 36, §4029 
(West 1976) ; 40 Pa. Stat. Ann. §510.1 (Purdon 1971); S.C. Code 
§38-7-90 (1976); S.D. Compiled Laws Ann. §58-15-38 (1967); 
Tenn. Code Ann. §56-1113 (1968) ; Tex. Ins. Code Art. 3.44 (Ver­
non 1963) ; Utah Code Ann. §31-22-13 (1974) ; Vt. Stat. Ann. tit. 
8, §3747 (1970); Va. Code §38.1-465 (1976); Wash. Rev. Code 
§48.23.350 (1974) ; W. Va. Code §33-13-30 (1975) ; Wis. Stat. Ann. 
§206.181 (West Supp. 1977) ; Wyo. Stat. §26.1-364 (1957).

5 8 6



29

individuals.65 Such laws have not, however, been construed 
to prohibit use of sex-segregated mortality tables; the dif­
ferential in male-female life expectancy is considered to 
place males and females of the same age into different 
classes, justifying the imposition of different rates.

In addition to statutes which expressly permit or require 
the use of sex-segregated actuarial tables, various state 
fair employment laws make clear that actuarially based 
sex-distinctions in insurance retirement and pension plans 
do not contravene the states’ policies to ban sex discrimina­
tion. For example, the California statute provides:

“Nothing contained in this part relating to discrimina­
tion on account of sex . . . shall be deemed to affect the 
operation of the terms or conditions of any bona fide 
retirement, pension, employee benefit, or insurance 
plan, provided such terms or conditions are in accord-

65 See, e.g., Cal. Ins. Code §790.03 (West Supp. 1976); D.C. 
Code A n n . §35-715 (1973). These statutes generally derive from 
the National Association of Insurance Commissioners Model Unfair 
Trade Practices Act which, inter alia, defines as an unfair trade 
practice and prohibits:

“Making or permitting any unfair discrimination between in­
dividuals of the same class and equal expectation of life in 
the rates charged for any contract of life insurance or of life 
annuity or in the dividends or other benefits payable thereon, 
or in any other of the terms and conditions of such contract.” 
(1947 NAIC Proc. at 392-400) (emphasis added).

In effect, men and women of the same age are not similarly 
situated with respect to life expectancy. Thus, under the usual 
definition of discrimination—unequal treatment of similarly situ­
ated persons—no discrimination exists. See Cohen v. Chesterfield 
bounty School Bd.. 474 F.2d 395, 397-98 (4th Cir. 1973), rev’d 
pother grounds sub nom., Cleveland Bd. of Edue. v. LaFleur, 414 

(19741 : Rafford v. Randle Eastern Ambidance Serv., Inc., 
«8 P. Supp. 316, 320 (S.D. Fla. 1972).

587



30

ance with customary and reasonable or actuarially 
sound underwriting practices.” 66

Finally, federal and state administrative agencies have 
been virtually unanimous in concluding that no sex dis­
crimination exists where an employer complies with either 
the “equal payments” or “equal benefits” rule in providing 
insurance or pension benefits to employees.67 The “equal 
payments” rule recognizes the actuarial fact that some 
fringe benefits cost more to provide to members of one sex, 
and therefore, an equal expenditure on behalf of males and 
females will purchase benefits having actuarially equal 
values, but resulting in differing levels of payments to 
male and female employees.

The “equal payments” formulation has been set forth in 
the Department of Labor Interpretive Bulletin under the

66 Cal. Lab. Code §1432 (West Supp. 1977). See also Del. Code 
tit. 19, §711 (h) (1975) ; Iowa Code Ann. §601A.12 (West 1975); 
Me. Rev. Stat. tit. 5, §4573 (1973 Supp. Pamphlet) ; Mo. Ann. 
Stat. §296.020(8) (Vernon Supp. 1976) ; Mont. Rev. Codes Ann. 
§64-328 (Supp. 1976); Or. Rev. Stat. §659.028 (1975); Pa. Cons. 
Stat. tit. 43, §955 (Purdon Supp. 1977).

In its August 21, 1968 interpretive rulings construing the New 
York State Fair Employment Practices Law, the State Commission 
Against Discrimination provided, inter alia:

“ I . I n s u r a n c e  C o verage

a. In administering group life insurance, health insurance 
or other “fringe benefits”, the employer may make distinctions 
between men and women workers to the extent that they are 
required by the underwriting policies of insurance carriers.

CCH E m p l . P r a c . G u id e  *(126,053, at 8906 (superseded).
67 The first articulation of this position by the Department of 

Labor Wage-Hour Administrator appears to have been in May of 
1964, more than a year before July 2, 1965, the effective date of 
the employment provisions of Title VII. See Civil Rights Act 
of 1964, Sec. 716(a), 78 Stat. 266; Wage-Hour Administrator 
Opinion Letter No. 257,.CCH W a g e s  & H o u r s  P0.851 (May 27, 
1964).

588



31

Equal Pay Act,68 69 and in a long series of opinion letters 
applicable to various forms of insurance60 and pension 
benefits.70

The Department of Labor Office of Federal Contract 
Compliance71 and the Department of Health, Education

“ 29 C.F.R. §800.116 (d) (1967) :
“(d) Contributions to employee benefit plans. If Employer 

contributions to a plan providing insurance or similar benefits 
to employees are equal for both men and women no wage dif­
ferential prohibited by the equal pay provisions will result 
from such payments, even though the benefits which accrue 
to the employees in question, are greater for one sex than for 
the other. The mere fact that the employer may make unequal 
contributions for employees of opposite sexes in such a situ­
ation will not, however, be considered to indicate that the 
employer’s payments are in violation of section 6(d), if the 
resulting benefits are equal for such employees.”

69 E.g., Wage-Hour Administrator, Opinion Letter No. 257, CCH 
Wages & H o u r s  P0,851 (May 27, 1964) ; Wage-Hour Adminis­
trator, Opinion Letter No. 336, CCH W a g e s  & H o u r s  f[30,945 
(Jan. 22, 1965) ; Wage-Hour Administrator Opinion Letter No. 
394, CCH W a g es  & H o u r s  P 0 ,996.22 (Oct. 27, 1965) ; Wage-Hour 
Administrator, Opinion Letter No. 484, CCH W a g e s  & H o u r s  
130,997.26 (Aug. 3, 1966).

Wage-Hour Administrator, Opinion Letter No. 1117 
(WH-70), CCH W a g e s  & H o u r s  P0,681 (Aug. 25, 1970); Wage- 
Hour Administrator, Opinion Letter No. 1276 (WH-224), CCH 
Wages & H o u r s  P0,874 (April 26, 1973) :

“Specifically you ask: ‘If an employer makes equal contri­
butions to a retirement plan covering male and female em­
ployees but if, as a result of separate actuarial tables used 
by the plan’s administrators, the female employees, other 
things being equal, receive smaller monthly retirement bene­
fits, is the employer in violation of the equal pay provisions f  

. . .  [0 ]ur opinion letter of August 25, 1970 [W & H 
Opinion Letter No. 1117], sets forth our current position 
under the Equal Pay Act. We are cognizant of the recent 
amendments to the Civil Rights Act and the Guidelines issued 
by Equal Employment Opportunity Commission (EEOC) on 
pension benefits and we will continue to watch developments 
m this area. However, we do not anticipate any change in 
our position in the immediate future.”

n OFCC Guidelines, 41 C.F.R, §60-20.3 (c) (1970). The OFCC 
considered adopting the EEOC’s 1972 interpretation requiring the

589



32

and Welfare72 similarly concluded that no sex discrimina­
tion was involved where an employer made equal contribu­
tions on behalf of male and female employees, but the 
amount of fringe benefit payments received by the em­
ployee differed.

Indeed, the first time that the EEOC focused its atten­
tion upon the problem, it acknowledged the correctness of 
the Department of Labor’s “equal payments/equal bene­
fits” approach in determining the existence of sex dis­
crimination. In its 1st Annual Report, EEOC stated:

‘The Commission determined that an employer does 
not commit an unlawful employment practice by con­
tributing to or negotiating accident insurance programs 
which provide different benefits for male and female 
employees based upon reasonable actuarial considera­
tions, as long as the cost to the employer is the same 
for both groups of employees. Similarly, no violation 
occurs when male and female employees receive the 
same benefits but the employer’s contribution to the 
plan differs according to the sex of the employee.

payment of equal benefits to employees regardless of cost. See 38 
Fed. Reg. 35336-38 (Dec. 27, 1973). To date, the OFCC has ad­
hered to its original position.

72 See Dep’t  of HEW  Regulations, 45 C.F.R. §§86.39, 86.56(b) 
(2) (1976). The Department of HEW also considered changing its 
position to conform to the new EEOC position, but it also, to date, 
has not done so. See 40 Fed. Reg. 24135 (June 4, 1975).

The Department of HEW is the only agency to have expressly 
considered a “unisex” approach to computing contributions to be 
paid on behalf of male and female employees. 39 Fed. Reg. 22237 
(1974). To date, HEW has not adopted such an approach.

590



33

A related question is the difference in treatment 
between male and female employees under pension and 
retirement plans. Although a retirement program 
which requires female employees to retire at age 62 
and male employees at age 65 would appear to violate 
Title VII, the Commission had not so ruled by June 
30, 1966. The retirement plan problem is proving ex­
ceedingly complex, in large part because of the variety 
of methods in which pension plans are funded and 
the fact that, under plans in existence at the time 
Title VII was enacted, contractual rights have arisen 
which cannot be disturbed without producing inequit­
able results.” U.S. EEOC, 1st  A n n u a l  R epo b t , H.E. 
Doc. No. 86, 90th Cong., 1st Sess. 41-42 (1966).

In a 1966 opinion letter, Charles T. Duncan, the General
Counsel of the EEOC, stated:

“The Commission . . . does not feel that an employer 
commits an unlawful employment practice by contribut­
ing to or negotiating insurance programs which pro­
vide different benefits for male and female employees 
based upon reasonable actuarial considerations re­
quired by insurance underwriters. Nor does the Com­
mission believe that a violation of Title VII occurs 
when male and female employees receive the same 
benefits, but the employer's contributions to the plan 
differ, depending upon the sex of the employee. When 
employees receive the same benefits, but the employees’ 
contributions to the plan differ depending upon the 
sex of the employee, no violation of Title VII occurs 
*/ the differing employees’ contributions are based 
upon reasonable actuarial grounds.” 73

a d d d f A  P 'K P ' R e P ' 4 0 1 :3011'12 (July  2 8 ’ 1966) (e m P hasis

591



34

See also opinion letter, described in U.S. EEOC, First 
A nnual  D igest oe L egal I ntekpbetations, July 2, 1965 
through July 1,1966  at 22-23; U.S. EEOC, 1st A nnual Re­
post, supra at 41-42.

This interpretation remained in effect until April 1972. 
In the same release in which it erroneously proclaimed 
illegal the denial of disability benefits on account of preg­
nancy, the EEOC repudiated its acceptance of the equal 
payments rule:

“(e) It shall not be a defense under title VII to a 
charge of sex discrimination in benefits, that the cost 
of such benefits is greater with respect to one sex 
than the other.” 74 75

This sudden about-face taken eight years after the adop­
tion of Title VII is entitled to no deference by this Court."

In sum, the widespread acceptance and use of sex-segre­
gated actuarial data prior and subsequent to the enactment 
of Title VII, the uniform practice of federal agencies (in­
cluding, until 1972, the EEOC) recognizing actuarial equal­
ity as precluding a finding of sex discrimination, and the 
available formal legislative history which in no way sug­
gests an intention to work a major change on the insurance 
industry,76 all lead to the inescapable conclusion that Title

74 29 C.F.R. §1604.9, 37 Fed. Reg. 6835, 6837 (April 4, 1972).
75 See General Electric, at 140-43; United Housing Foundation, 

Inc. v. Forman, 421 U.S. 837, 858-59 n.25 (1975) ; Morton v. Bmi, 
415 U.S. 199, 231 (1974); Espinoza v. Farah Mfg. Co., supra, 
414 U.S. 86, 92-96 (1973); Skidmore v. Swift Co., 323 U.S. 134,140 
(1944).

76 Of course, had Congress intended to work a substantial change 
in prevailing pension and insurance practices, it would have re­
quired little effort to insert into the statute, or the legislative his-

592



35

VII, properly construed, does not require that actuarial 
distinctions between males and females be ignored.

C. Differentials Based Upon Life Expectancy Are 
Permitted Under The Equal Pay Act And 
Therefore Do Not Violate Title VII

Because it feared conflicting interpretations under the 
Equal Pay Act of 1963 and Title YII of the Civil Rights 
Act of 1964, Congress enacted, as part of the latter stat­
ute, Section 703(h), the Bennett Amendment:77

“It shall not be an unlawful employment practice under 
this title for any employer to differentiate upon the 
basis of sex in determining the amount of the wages 
or compensation paid or to be paid to employees of 
such employer if such differentiation is authorized by 
the provisions of section 6(d) of the Fair Labor Stand­
ards Act of 1938, as amended (29 TJ.S.C. 206(d)).”

The intention of this amendment is clear: “Simply stated, 
the amendment means that discrimination in compensation 
on account of sex does not violate Title YII unless it also 
violates the Equal Pay Act.” 78 *

Originally, the EEOC recognized the primacy of inter­
pretations under the Equal Pay Act in the area of the De-

toy, some tangible evidence of this intent. See Ozawa v. United 
Mates, 260 U.S. 178, 192-94 (1922); Toilet Goods Ass’n v. Finch, 
119 F.2d 21, 27 (2d Cir. 1969); Friedman v. United Slates, 374 
L2d 363, 366-67 (8th Cir. 1967) ; IIedit v. Pro-Football, Inc., 
nmo'2d ^31, 945 (D.C. Cir. 1971), cert, denied, 404 U.S. 1047 
air, Kcttell v. Johnson & Johnson, 337 F. Supp. 892, 895 
ED. Ark. 1972) ; Zachary v. R. H. Macy & Co., 31 N.Y.2d 443 

160 (1972).

"42 U.S.C. §2000e-2(h).
H i Cong. Ree. 13359 (1965) (remarks of Senator Bennett).

593



36

partment of Labor’s competence. Its 1965 Guidelines pro­
vided, in pertinent part:

Ҥ1604.7 Relationship of Title VII to the Equal Pay 
Act.

(a) Title VII requires that its provisions be har­
monized with the Equal Pay Act in order to avoid con­
flicting interpretations or requirements with respect to 
situations to which both statutes are applicable. Ac­
cordingly, the Commission interprets section 703(h) 
to mean that the standards of ‘equal pay for equal 
work’ set forth in the Equal Pay Act for determining 
what is unlawful discrimination in compensation are 
applicable to Title VII.” 79

This remained the stated position of the EEOC for six and 
one-half years until it was modified in the 1972 Guidelines80

79 30 Fed. Reg. 14928 (December 2, 1965) (citation omitted) 
(superseded).

The Department of Labor had no trouble construing the plain 
language of the Bennett Amendment to mean that in the area of 
sex discrimination in pay its interpretations were to control in 
applying Title VII. In Wage-Hour Opinion WH-140, July 1, 1911, 
the Wage-Hour Deputy Administrator stated, in part:

“This is in further reference to your letter . . . concerning the 
application of the Civil Rights Act to a proposed insurance 
program.

*  #  *

. . . Title V II is administered by the Equal Employment Op­
portunity Commission, not the Department of Labor. How­
ever, the Equal Pay Act of 1963 . . . applies to fringe benefits 
which are deemed to be remuneration for employment where 
the A ct’s standards otherwise apply and, since Title VII of 
the Civil Rights A ct of 1964 requires that relevant opinions 
of the Administrator of the Wage and Hour Division in the 
Department of Labor are to be adopted by the Commission 
in the making of interpretations under Title V II, we believe 
we can be of assistance to you.” (Wage-Hour Opinion, WH- 
140, July 1, 1971, BN A Wage & Hour Man. 95:657).

80 29 C.F.R, §1604.8, 37 Fed. Reg. 6835, 6837 (April 5, 1972).

594



37

in which the EEOC also reversed its position on “the equal 
benefits/equal payments” rule, and on the appropriate 
treatment of disability on account of pregnancy. As this 
Court recognized in General Electric, notwithstanding the 
protestations of the EEOC, pay practices which are proper 
under the Equal Pay Act are not actionable under Title 
VII.81 82

As discussed, supra, at 30-31, the position taken by the 
Department of Labor Wage-Hour Administrator demon­
strates that under the Equal Pay Act, and therefore under 
Title VII, an actuarially established differential would not 
offend either of the two statutes, where the employer com­
plies with the equal payments test.

The applicability of the Wage-Hour Administrator’s in­
terpretation to claims of sex discrimination in pension 
benefits was only recently upheld by Judge Gignoux in 
EEOC v. Colby College.62 There, the EEOC challenged 
Colby College’s annuity and life insurance programs, claim­
ing they violated Title VII, since the dollar amount of 
periodic annuity payments was calculated on the basis of 
sex-segregated mortality tables. As a result, the female

81 General E lec tr ic , at 143-44.

82 BN A Daily Lab. Rep., No. 212, Nov. 2, 1977 at D -l (D. Maine, 
oct 27, 1977). The pension and insurance program of Colby 
College was funded through Teachers Insurance and Annuity  
Association and College Retirement Equities Fund, and provided 
tor contributions to the fund based upon the salary of the par­
ticipating employee. Similarly situated male and female employees 
enrolled in the retirement annuity and life insurance plans each 
®aae equal contributions, and the school’s contributions on account 
o similarly situated male and female employees were the same, 
(a. at D -l to D -2). Under the annuity plan, the employee, at 
etirement, could select various options (usually, periodic pay- 
ents for the lifetime of the insured, or for the lifetime of two

pnsons such as the insured and spouse).

595



38

annuitants received lower periodic benefits than did the male 
annuitants. In the case of the life insurance plan, the effect 
was reversed; male insureds received lower death benefits 
than similarly situated females because of the higher male 
mortality rate. The EEOC disregarded the fact that simi­
larly situated male and female employees covered by the 
annuity and life insurance plans received coverage having 
the identical present actuarial value.

The eourt examined the Bennett Amendment and its 
legislative history and found they manifested “the plain 
intent of Congress to avoid subjecting employers to two 
conflicting standards . . . and to provide that any possible 
conflict between the requirements of Title VII and the 
Equal Pay Act is to be resolved in favor of the Equal Pay 
Act.” 83 The court noted that the EEOC initially acknowl­
edged that it was required to adhere to interpretations 
under the Equal Pay Act, and, as this Court did in General 
Electric, Judge Gignoux rejected the EEOC’s later attempt 
to disavow its earlier position. Similarly, the Wage-Hour 
Administrator’s “equal payment/equal benefit” formula­
tion, initially adopted by the EEOC, was held to be control­
ling, warranting summary judgment for the defendants.81

33 E E O C  v. C olby College, su p ra  n.82, at D-2. The court also 
cited the statement of Senator Humphrey, quoted by this Court m 
the G eneral E lec tr ic  decision, that the purpose of the Bennett 
Amendment was to make it “unmistakably clear” that “differences 
of treatment in industrial benefit plans, including earlier retire­
ment options for women, may continue in operation under this hill 
if  it becomes la w [.]” (110 Cong. Rec. 13663-64 (1964)).

84 While the court distinguished the instant case, it expressly 
declined to follow the holding of the Ninth Circuit majority to the 
extent that it had “found a qualitative distinction between a bene­
fits program in which the direct cost to participant varies on the 
basis of the participant’s sex and one in which the benefits accrue 
differently to one group of enrollees to another due to the sex ox 
the particular enrollees.” (E E O C  v. C olby College, supra  n.82, 
at D-4).

5 9 6



39

Here, the Department of Labor, in its brief to the court 
below, argued that, while an employer may lawfully make 
unequal contributions for employees in order to provide 
equal benefits, or equal contributions, which result in un­
equal benefits, the employer runs afoul of the Equal Pay 
Act by requiring employees to make unequal contributions 
to obtain equal benefits. The illogie of this distinction be­
comes clear from the following hypothetical example: 
Under the equal payments rule, if the employer had pur­
chased $10 worth of annuity benefits for male and female 
employees, he. would not be guilty of sex discrimination 
even though the periodic payment to be received by a 
female employee upon retirement would be somewhat less 
than that payable to a male. In order for a female employee 
to obtain additional coverage to bring the level, of her 
periodic payments up to the level of male employees, she 
would have to pay an insurer an incremental amount to 
purchase the additional coverage. If, instead, the employer 
collected from the female employee a payment representing 
a part of this difference and himself paid the balance, he 
would, under the Labor Department’s theory, be exposed 
to liability for sex discrimination in pay. This, we submit, 
makes no sense.

Since it has been consistently held that payments by an 
employer for fringe benefits constitute wages,85 the fact of 
discrimination in the payment of wages cannot logically de­
pend upon whether the employer hands the money involved 
to the employee or to an insurer, or indeed pays it directly 
into his own pension benefit plan.86

K8ee, e.g., In la n d  S te e l Co. v. N L B B ,  170 F.2d 247 (7th Cir. 
1948), cert, den ied , 336 U.S. 960 (1949).

86 As this Court noted in the G edu ld ig  and G eneral E lec tr ic  
®ses, there is no operative distinction, under Title V II or the

597



40

It follows, both from the Department of Labor equal 
payments/equal benefits rule87 * and from the statutory ex­
ception discussed below, that actuarially based distinctions 
incorporated by employers into their pension plans do not 
involve sex discrimination under either the Equal Pay Act 
or Title VII.

The Equal Pay Act enumerates four specific exceptions. 
The last, Section 206(d)(1)(iv), is pertinent here:

“No employer . . . shall discriminate . . . between em­
ployees on the basis of sex by paying wages . . .  at a 
rate less than the rate to which he pays wages to the 
opposite sex . . . for equal work on jobs, the perform­
ance of which requires equal skill, effort and responsi­
bility and which are performed under similar working 
conditions except where such payment is made pur­
suant to . . . (iv) a differential based on any other fac­
tor other than sex

Clearly, if the fourth exception were intended to refer 
only to factors neither correlated with nor based upon sex, 
it would be meaningless; the statute would, by its terms not 
apply in the first place. The legislative history of this 
provision, however, makes clear that it was intended to be 
applied to authorize differentials based upon objective fac­
tors which happen to correlate with sex.

Equal Protection clause between the purchase of insurance from 
an outside party, or self-insurance, in determining the existence 
of sex discrimination. G eneral E lec tr ic , at 138 n .16; Gecluldig v. 
A ie llo , su p ra , 417 U.S. at 492.

87 The validity of the Department of Labor equal benefits/equal 
payments rule derives either from the exception to the Equal Pay 
Act discussed below, or from the fact that the rule does not involve 
a sex distinction at all. S ee  discussion su p ra  at 6-12. In either
case there would be no liability under Title V II.

598



41

During the course of the debates over the Equal Pay Act, 
Bepresentative Findley of Illinois introduced an amend­
ment which expressly would have allowed wage differen­
tials based on the difference in cost associated with the em­
ployment of members of different sexes.88 Congressman 
Groodell, one of the sponsors of the bill, spoke of the effect 
of the bill even absent the proposed amendment:

“ . . .  there are many factors that can be taken into con­
sideration in working out differentials of pay among 
employees . . . which would be proper under this legis­
lation so long as they were based on those factors and 
not on the basis of whether employees are women or 
men.” 88

One such factor specifically mentioned was “ . . . differen­
tials in pay relating to insurance costs . . . . ” 80 90

Representative Thompson, the Chairman of the commit­
tee which reported on the Equal Pay Act, observed tha t: 
“... the language the gentlemen would add is redundant.” 81

Representative Pucinski asked whether the language re­
ferring to “ ‘a differential based on any other factor than 
sex’ [would] really cover what the gentlemen from Illinois 
is trying to do?” 82 *

Representative Thompson agreed it did93 and thus, the 
Bindley Amendment was rejected.

“ 109 Cong. Ree. 9217 (1963).
“ 109 Cong. Rec. 9206 (1963).
90 Id.

81109 Cong. Ree. 9217 (1963).
82 Id,

81 Id.

599



42

It is clear, therefore, that the fourth exception enumer­
ated in the Equal Pay Act was not intended to be a mere 
redundancy. It was designed to make clear that neutral 
factors such as working time where statutes limited the 
number of hours a woman could work,04 or life expectancy, 
even though linked with gender, were intended to be per­
mitted under the Act.

Thus, regardless of whether the plan here at issue falls 
within the precise bounds of the equal payments rule as 
currently articulated by the Department of Labor, it is 
rooted in precisely the same actuarial approach which pro­
vides the legal and logical underpinning for that interpreta­
tion. As the dissenting opinion below noted, the Depart­
ment of Labor “contemplate [d] the actuarial equivalent 
of the [petitioner’s pension] scheme”.94 95 96

IMPLICATIONS OF THE DECISION BELOW

The decision below, requiring that equal periodic pension 
benefits be given to male and female employees, will require 
radical changes in the pension and retirement coverage 
available to American workers, and may substantially in­
crease pension costs.

In order to provide equal benefits, an employer with a 
defined payments plan presently in effect, will be faced with

94 1 09 Cong. Rec. 9205-06 (1963) (remarks of Representative
Griffin).

96 5 5 3 F.2d at 597. Judge Kilkenny continued:
“In the context of pension plans, [the equal payments] rule 
makes sense only if it is read to impliedly authorize the fund­
ing of empl oyee pension plans upon the basis of separate mor­
tality tables. This regulatory justification for a plan with 
equal contributions and unequal benefits cannot be ignored 
in the variation before us.” (Id.)

600



43

two choices: either to increase the amount of dollars con­
tributed on behalf of female employees in order to fund 
the additional benefit payments, accumulating the funds in 
a “side pool” (“topping-up”) ; or to compute benefits on a 
“unisex” basis (i.e., by reference to a mortality table based 
upon combined male and female experience).

The topping-up approach creates two problems. The first 
is the obvious fact that it requires that an employer pay an 
additional amount on behalf of female employees, thereby 
increasing the wages of the female employee above that of 
a similarly situated male. This would substantially add to 
the cost of pension coverage; on a nationwide basis, the 
additional costs have been estimated at $1.8 billion an­
nually.96

Second, it would be necessary, under an equal benefits 
rule, to restructure the great majority of existing pen­
sion plans. Most plans offer various benefit options upon 
retirement in addition to a life annuity. If male and fe­
male employees must, for example, each receive equal 
amounts under a lump-sum option, then no female em­
ployee would ever select the lump-sum option unless the 
benefits payable under that option were also computed by 6

6 In April 1976, the Federal Equal Employment Opportunity 
Coordinating Council formulated a proposal to’ require that equal 
pension benefits be paid to all female employees retiring after 
January 1 , 1980. See BNA Daily Lab. Rep, No. 80. April 23 
W6 at A-12; Id., No. 122, June 23, 1976 at A-16 to '17, E-l to 

In connection with this proposed bill, the Coordinating Coun­
cil received a report by a task force of actuaries on the cost of 
equalizing pensions for men and women. Based upon actual pay­
ments into pension plans ip 1976 in the aggregate amount of $60 
j»!lion and assuming a 3% increase (the figure apparently be­
lieved by the government to be the average cost to pension' plan 
sponsors), this would result in additional pension costs of approxi­
mately $1.8 billion annually.

601



44

using female mortality rates. The added costs of provid­
ing the same benefits for male employeees would constitute 
a disincentive to employers in determining whether to 
establish or maintain pension coverage for their employees.

The alternative approach to “topping-up”, computation 
of funding requirements based upon unisex actuarial tables, 
is no more satisfactory a solution. For existing plans this 
alternative would, of course, result in a reduction in bene­
fits for males, which is not a practical solution for most 
employers, particularly where benefits have already vested 
or are collectively bargained.

Certain commentators have suggested that the use of 
unisex actuarial tables would satisfy both the requirements 
of Title YII and the actuarial necessity of a group basis for 
computing the level of required premiums. In fact, such 
tables violate the basic insurance concept that,

“every insured should contribute his fair share 
toward the risk involved—that only applicants who are 
exposed to comparable degrees of risk should be 
placed in the same premium class.” 97

Equitable classification of risks requires not only that 
equal classes be treated equally, but also that unequal 
classes n o t be treated equally. Just as it would be inequi­
table to treat a 25-year old woman as a member of the 
same risk class as a 65-year old woman to compute life 
insurance or annuity premiums, similarly, a 25-year old 
male employee is in a different risk class than a 25-year 
old female. If this principle is not followed, then one class

97 P. Shepherd & A. Webster, S e l e c t io n  o f  R i s k s  1 (1957)' 
This principle is embodied in state insurance statutes. See supra 
n.65 and accompanying text.

602



will be forced to subsidize another. Use of unisex tables 
Serves only to camouflage, not to eliminate, the subsidiza­
tion.

To say that rates must be computed based upon com­
bined male and female experience and that for male em­
ployees must pay additional insurance premiums for their 
pensions is analogous to the claim which was raised by 
the plaintiffs and rejected by this Court in General Electric. 
The district court there had found that, even if it were dem­
onstrated that the actuarial value of the disability insur­
ance coverage provided to male and female employees was 
identical,

“such a finding would not . . . have justified the exclu­
sion of pregnancy-related disabilities . . . .  Regard­
less of whether the cost of including such benefits 
might make the Plan more costly for women than for 
men, the District Court determined that ‘[i]f Title VII 
intends to sexually equalize employment opportunity 
there must be this one exception to the cost differential 
defense.’ ” 88

This Court, in no uncertain terms, declared:

“Whe District Court was wrong in assuming, as it did 
• •. that Title VII’s ban on employment discrimination 
necessarily means that ‘greater economic benefit [s]’ 
must be required to be paid to one sex or the other 
because of their differing roles in ‘the scheme of human 
existence.’ ” 09 * *

45

K General E lec tr ic , at 132 (citation omitted).
General Electric, at. 139 n.17 (citation omitted).

603



46

Moreover, rates computed on the basis of unisex mortality 
tables would be inherently unstable. An employer with a 
large number of males in his work force would be foolish to 
purchase annuities from an insurer required to compute 
rates based upon unisex experience. These rates would re­
flect the higher costs of providing pension payments to the 
female segment of the work force. Such an employer, if 
sufficiently large,100 would self-insure by establishing a 
“trusteed” plan pursuant to which pension obligations would 
be funded based upon the plan’s actual experience. Because 
of the particular composition of his predominantly male 
work force, this experience would be more favorable to the 
employer than the unisex rates offered by an insurer.

Those employers who continue to purchase pension cov­
erage will be faced with the fact that the experience of the 
insurer will be weighted heavily toward the mortality ex­
perience previously shown as female experience in sex- 
segregated tables. As a matter of economics, the unisex 
rate inevitably would rise to reflect the insurer’s claim costs. 
This, in turn, could be expected to induce additional groups 
to leave the plan until only those groups with the highest 
risk of loss would retain their coverage.101 For the small

100 Small pension plans do not normally have the option of self- 
insuring. If a small plan were to self-insure, it would expose itself 
to the risk that its participants would survive significantly longer 
than expected and the plan would cost significantly more than it 
would if insurance had been purchased—perhaps significantly more 
than the employer could pay.

101 The history of the insurance industry discloses one prior at­
tempt to disregard differences in risk classification, an attempt 
which resulted in failure. Certain assessment societies formed in 
the United States after the Civil War set equal premiums ana 
assessments without regard to the age of the individual member. 
As the average age of the members increased, and mortality ex­
perience worsened, the frequency of assessments increased and the 
established associations were unable to attract the younger mem-

604



47

employer for whom the option of establishing and funding 
a trusteed plan is impractical, the logical result would be 
the elimination of the pension plan.

The use of unisex tables can be anticipated to result in in­
creased costs of pensions. The same actuarial task force 
which considered the cost of requiring employers to provide 
equal benefits to male and female employees using the “top­
ping-up” method, made note of the estimate of Teachers 
Insurance and Annuity Association, that use of a unisex 
table would result in an increase in contributions of ap­
proximately 7%,102 or $4.2 billion annually.103

While the inequity of according similar treatment to dis­
similar risks has already been described, one particular 
argument advanced by some proponents of unisex actuarial 
tables, such as Professor Barbara Bergmann, requires men­
tion. Under what has become known as the “overlap 
theory”, it has been argued104 that it is possible to match 
approximately 83% of males and females as to years of 
death; that is, if a group of 100,000 males, age 65, and a 
group of 100,000 females, age 65, were used as a test 
sample, when all of the members of the group had died, it

bers necessary to keep down the level of necessary payments. 
Ultimately, the rates necessary to sustain the benefits payable to 
the older members became too heavy to be borne by the member­
ship, and the associations terminated, leaving members without the 
protection for which they contributed over a period of a number of 
years. See Bailey, Hutchison & Narber, T h e  R e g u la to ry  C hallenge  
to L ife In su ra n ce  C lassifica tion , 25 D r a k e  L. R e v . I n s . L. A n n . 
119,784-85 (1976).

102 BNA Daily Lab. Rep., No. 122, June 23, 1976, at E-3.
103 See sup ra  n.94.
104 See King, M en, W o m en , a n d  L ife  A n n u it ie s ,  J. R i s k  & I n s . 

553, 556-57 and Myers, F orum ,: P en sio n  B en e fits  a n d  S e x , 9 C ivil 
Rights D ig e st  45-46 (1977) which describe and criticize a study 
by Professor Bergmann.

605



48

would be found that approximately 83,000 of the females 
had died at the same age as approximately 83,000 of the 
males. Thus, because 17% of the females live longer than a 
corresponding percentage of the males, it is supposedly un­
fair to penalize the other 83% of the females who can be 
paired with males as to age at death by charging females 
higher annuity premiums.

It should be noted at the outset that the Bergmann study 
arbitrarily selected as the basis for pairing males and fe­
males, the year of death. This is no more correct than pair­
ing by one of the many other possible methods, such, as by 
order of death. Thus, if the first woman who dies is paired 
against the first man who dies, and this process of consecu­
tive pairing is followed, by the end of the third year no male 
will be matched against a female who died at the same age. 
In fact, continuing this process to age 110 for males and 
age 115 for females leads to pairings over most of the period 
with the male age at death being five years lower than the 
age at death of the “corresponding” female.

The logical fallacy and economic irrelevance of the “year 
of death pairing” approach is obvious when this is viewed 
in terms of actual dollars. If a company (or a government) 
were to issue annuities of $1,000 per year to each of 100,000 
men and 100,000 women experiencing the mortality rates re­
ferred to in the Bergmann study, it would have to make pay: 
ments of $100,000,000 in the first year to each group. In the 
fifth year the payments to the male annuitants would have 
dropped to $90,329,000, while those to the female annui­
tants would amount to $94,053,000, and in the tenth year 
annuity payments would have been $73,657,000 to males, and 
$83,328,000 to females. Over the course of fifty years, an 
aggregate of $1,561 billion would have been paid to male 
annuitants and $1,926 billion to females. The females, as a

606



49

group, would have received $365 million—23%—more than 
the males.105 106

Professor Robert J. Myers, formerly Chief Actuary for 
the Social Security Administration for 23 years, and Pro­
fessor of Actuary Science at Temple University, criticized 
the overlap theory in a recent article in Civil Rights Di­
gest,ws a publication of the U.S. Commission on Civil Rights.

He noted that, while the years of death of 84% of men 
and women coincide, the 16% of unmatched men would have 
an average age at death of approximately 70 years, and the 
average age at death of the unmatched women would be ap­
proximately 88. He then illustrated the absurdity of the 
overlap analysis by observing that if the years of death of 
members of a group of 1,000 men at age 65 are matched 
with the years of death of a group of men aged 60, there 
will be an overlap of approximately 85%. Thus, under that 
theory, it presumably would be improper or unfair to utilize 
mortality tables based on age in setting insurance pre­
miums. Of course, the logical result of following this mode 
of analysis is to dispense with any actuarial analysis at all; 
a result which, we submit, is neither desirable nor man­
dated by Title VII.

105 Looked at from another perspective, if benefits of $1,000 per 
year were to be paid to each of 1 0 0 ,0 0 0  males beginning at age 
65 from a fund earning 5% after taxes and all expenses, such 
a fund would have to be $1,040,000,000. The corresponding fund 
needed for female annuitants would amount to $1,194,000,000.

Alternatively, a fund equal to that used to provide $1 ,0 0 0  a 
month to male annuitants could provide $870 per month to female 
annuitants. If female annuitants were to draw $1,000 per month 
from this last fund rather than $870 per month, it would be ex­
hausted after 18 years. For those females surviving beyond that 
Period and receiving no further payments, the overlap theory 
would provide cold comfort.

106 Myers, supra n.104.

607



5 0

CONCLUSION
This Court, on the basis of a general anti-discrimination 

statute, is being asked to set aside long-standing and ac­
cepted insurance and actuarial practices, the validity of 
which has been acknowledged by government and industry 
alike. This should be done only upon the strongest evidence 
that it was intended by Congress; evidence which is no­
where to be found in the record of this case.

The pension plan established by petitioner does no more 
than to recognize the undeniable actuarial truth that female 
employees, on the average, live longer than male employees 
of the same age. To require identical treatment would be 
fair to no one. Mr. Justice Frankfurter, in another context, 
observed that “ [i]t was a wise man who said that there is 
no greater inequality than the equal treatment of un- 
equals.” 107 This surely is the case here.

Respectfully submitted,

E dward S ilv er  
L arry M . L a v in sk y  
S t e p h e n  E .  T ism a n  

300 Park Avenue 
New York, New York 10022 

Attorneys for the Amicus
Of Counsel:

P ro sk a u er  R ose G oetz & M e n d e l s o h n  
300 Park Avenue 
New York, New York 10022

W il l ia m  B. H a r m a n , Jr.
Executive Vice President 
American Council of Life Insurance 
1850 K Street, N.W.
Washington, D.C. 20006

107 D en n is  v. U n ited  S ta te s , 339 U.S. 162, 184 (1950) (dissenting 
opinion).

608



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1977
NO. 76-1810

CITY OF LOS ANGELES, D EPARTM ENT OF 
HA TER AND  POWER, etc., et a/.,

Petitioners,

v.

MARIE MANHART,etal.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE ACLU 
FOUNDATION OF SOUTHERN CALIFORNIA 

IN SUPPORT OF RESPONDENTS

Michael Evan Gold 
New York State School of Industrial 

and Labor Relations,
Cornell University 
P. 0. Box 1000 
Ithaca, New York 14853

Fred Okrand 
Jill Jakes

ACLU Foundation of Southern California
633 So. Shatto Place
Los Angeles, California 90005

Attorneys for Amicus Curiae





TABLE OF CONTENTS

Table of Authorities......... ......... ii
Interest of the Amicus.................  2
Statement of the Case. .................. 3
Summary of the Argument................  5
Argument..............    6

I. By deviating from Congress's 
definition of equality of 
opportunity in retirement 
funds, the petitioner 
disadvantages female
employees................... . 9

II. By measuring and spreading 
the cost of longevity over 
sex-segregated classes, the 
petitioner disadvantaged 
its female employees because l
of their sex............ .........22

Conclusion......................... . 32

611
l



TABLE OF AUTHORITIES

Cases
Califano v. Goldfarb, 430

U.S. 199 (1977)............... 11,25
Fleming v. Nestor, 363

U.S. 603, 609 (1960).......... 11
Frontiero v. Richardson, 411

U.S. 677 (1973)...............  25
Geduldig v. Aiello, 417 U.S.

484 (1974)....................  21
General Electric v. Gilbert,

429 U.S. 125 (1976)........... 21
Henderson v. Oregon, 405 F.

Supp. 1271 (D. Ore. 1975),
appeal pending in the
Ninth Circuit.........   21

Reed v. Reed, 404 U.S. 71
(1971)........................  25

Weinberger v. Wiesenfeld, 420
U.S. 636 (1975)............... 11,25

Statutes
Civil Rights Act of 1964,

Title VII .......................................................................................... .  P a s s i m

§ 703(a)(1), 42 USCA 
§ 2000e-2 (a) (1)..............  20
§ 703 (a) (2) , 42 USCA
§ 2000e-2 (a) (2)..............  20,25

ii
612



Pub. L. 88-643..................  12
5 USCA §§ 8331 et seq...........  12
10 USCA § 1401 et seq. .........  13
22 USCA §§ 1061 et seq.......... 12
28 USCA §§ 371..................  13
29 USCA § 206 (d) . ...............  18
42 USCA §§ 401(a) et seq. ....... 10
45 USCA §§ 231 et seq. .........  12
50 USCA § 403 note..............  12
Cal. Gov. Code § 7500...........  30

Miscellaneous
110 Cong. Rec. 2728.............  27
110 Cong. Rec. 13663-4..........  9

Article
Gold, "Equality of Opportunity 

in Retirement Funds," 9 Loy.
L. A. Law Rev. 596 (1976).... 7

i i i
613





IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977 
NO. 76-1810

CITY OF LOS ANGELES, DEPARTMENT OF 
WATER AND POWER, etc., et al..

Petitioners,

v.

MARIE MANHART, et al.

ON WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT

BRIEF AMICUS CURIAE OF THE 
ACLU FOUNDATION OF SOUTHERN 

CALIFORNIA IN SUPPORT OF 
RESPONDENTS

1 . 615



INTEREST OF THE AMICUS CURIAE*

The ACLU Foundation of Southern 
California is an organization dedicated 
to the preservation of the rights guaran­
teed by the Bill of Rights of the Consti­
tution of the United States. Included in 
this is the equal protection of the laws, 
which encompasses, inter alia, equality 
of employment opportunities regardless of 
race, color, religion, sex, or national 
origin.

The instant case involves important 
questions concerning employment discrim­
ination because of sex. Defendants on 
their appeal challenge and seek to over­
turn the lower courts' decisions which 
invalidated that discrimination. Amicus

The parties have consented to the filing 
of this brief and their letters of consent have 
been filed with the Clerk of the Court pursuant 
to Rule 42(2) of the Rules of this Court.2,

616



believes the rulings of the District 
Court and the Court of Appeals were 
correct and seeks to present its views in 
this regard. Hence this brief amicus 
curiae.

STATEMENT OF THE CASE

Separate and unequal retirement plans 
were effectively maintained by the 
petitioner, City of Los Angeles Department 
of Water and Power. One plan was for its 
male employees. The other plan was for 
its female employees who, as a class, are 
the respondents. Membership in one plan 
or the other was compulsory for all 
employees. Although the plans resembled 
each other, in that they awarded benefits 
according to similar rules, each of the 
two plans had its own members and 
beneficiaries, its own sources and rates

3.
617



of funding, and its own actuarial 
foundation:

— Only men and their families were 
members and beneficiaries of the male 
fund. Only women and their families were 
members and beneficiaries of the female 
fund.

— No men contributed to the female 
fund. No women contributed to the male 
fund.

— Contributions to the male fund were 
determined by actuaries who relied on 
mortality tables for the male population. 
Contributions to the female fund were 
determined by actuaries who relied on 
mortality tables for the female 
population.

--The female fund required a woman 
to contribute approximately 15% more 
money each month than the male fund 
required of the women's male counterpart.

618
4.



The respondents brought suit in the 
District Court for the Central District 
of California, complaining of the facts 
above and praying for equalization of 
rates of contribution for counterparts.
The District Court granted a preliminary 
injunction equalizing rates of 
contribution, and the Court of Appeals for 
the Ninth Circuit affirmed.

SUMMARY OF THE ARGUMENT

As reflected in the retirement
programs which it has created, Congress
has defined equality in this context as
the opportunity for male and female
counterparts to receive equal monthly
retirement benefits at equal cost to them.
Men do not subsidize women in Congress's
Plans any more than shorter-lived persons
subsidize longer-lived persons in any

5.



insurance program. But the petitioner's 
plan disadvantaged women by requiring 
them to pay more for the same benefits.

Sex is not the only predictor of 
longevity. Even if it were, the 
petitioner could have spread the cost of 
longevity over the class of all employees 
(as Congress has) either by constructing 
a unisex mortality table or by assessing 
the cost of extra female longevity 
equally to all employees. By using sex 
both to measure and to spread the cost 
of longevity, the petitioner segregated 
its female employees and disadvantaged 
them because of their sex.

ARGUMENT

The issue in this case is the defim 
ition of equality of opportunity in the

620
6 .



context of retirement funds.^ Because the 
total contributions paid into, and the 
total benefits paid out of, the peti­
tioner's female retirement fund exceeded 
those of its male fund, the petitioner 
would define equality as the opportunity 
for the class of each sex to benefit from 
a fund in proportion to its contributions 
to the fund; that is, the ratio of contri­
butions to benefits must be the same for 
each of two sex-segregated funds, 
regardless of the effect on the members' 
standards of living. In contrast, the

See Gold, "Equality of Opportunity in 
Retirement Funds," 9 Loy. L. A. Law Rev. 596
(1976).

2
This definition includes the petitioner's 

Plan, in which females paid a higher rate of 
contribution in order to receive equal monthly 
benefits, and actuarially equivalent plans in 
which females paid the same rate of contri­
bution and received lower monthly benefits, 
because this definition would be satisfied if 
there were no plan for one sex at all, or if one 
Plan offered substantially lower benefits so

7.
621



respondents define equality simply as the 
opportunity for a male and a female to 
receive equal monthly benefits from a 
retirement fund at equal cost to them;
that is, to the extent that their employer
. 3is responsible for it, counterparts are
entitled to enjoy the same standard of
living during their working years and
during their retirement.

Which definition is correct? Are
separate and unequal retirement funds
permitted by Title VII of the Civil Rights
Act of 1964? The best approach to it is
to determine the intent of Congress.

2 (Continued) long as funding was propor­
tionate to benefits, two provisos are necessary: 
there must be plans for each sex; and either 
contributions by counterparts must be the same, 
leading to disparate monthly benefits, or females' 
contributions must be higher, leading to equal 
monthly benefits.

3Counterparts are a male and a female who 
were born on the same date, entered the service 
of the employer on the same date, and had 
identical employment histories.

8 .



I. By deviating from Congress's defini­
tion of equality of opportunity in 
retirement funds, the petitioner 
disadvantaged female employees.

While there is little express legis­
lative history on Congress's definition of 
equality of opportunity in the context of 
retirement funds, a colloquy between 
Senators Randolph and Humphrey is 
enlightening. The former mentioned that 
the Social Security System treats men and 
women differently in some respects and 
inquired whether similar differences in 
industrial benefit plans could continue 
under the bill which became Title VII; 
the latter answered affirmatively.
110 Cong. Rec. 13663-4 (1964). The 
Social Security System did not then, 
and it does not now, distinguish between 
wale and female counterparts for purposes 
°f employees' contributions to and

9. 623



benefits from the Old-Age and Survivors 
and Disability Insurance trust funds.
42 USCA §§ 401(a) et seq. Men and women 
make equal contributions to the trust 
funds during their working years, and they 
receive equal monthly benefits from the 
funds during their retirement. If, which 
is likely, Congress believed the Social 
Security System treated men and women 
fairly and was a proper model for private 
retirement plans, it certainly did not 
intend to approve plans like the peti­
tioner's, which result in unequal stan-

4dards of living for counterparts.

4 The analogy between the Social Security 
System and the petitioner's plan is particularly 
compelling because of their similarity to each 
other and their difference from annuity contracts 
offered by insurance companies. In the case of an 
annuity contract, the policyholder pays the company 
a lump sum of money and, in return, the company 
pays him a smaller sum of money on a periodic basis 
until he dies. There is a direct correlation 
between the consideration which the policyholder 
pays for the annuity contract and the level of 
periodic benefits which the company returns. By

10.
624



Another indication of Congress's 
definition of equality in retirement funds 
lies in the various other funds which it 
has created: for plainly Title VII was

q.

(Continued) contrast, defined-benefit plans 
like the petitioner's base retirement benefits on 
length of service and final average compensation 
(see petitioner's brief at p. 4); a retiree's 
benefit is not calculated simply by taking the 
dollars in his account, adding interest, and 
spreading the total over his life expectancy.
Thus, what Mr. Justice Harlan wrote of the Social 
Security System is equally true of the 
petitioner's plan: "eligibility for benefits, and 
the amount of such benefits, do not in any true 
sense depend on payment of taxes [or contri­
butions], but rather on the earnings record of 
the primary beneficiary [the employee]."
Flemming v. Nestor, 363 U.S. 603 at 609 (1960).

The similarity between the petitioner's plan 
and the Social Security System suggests an 
analogy to cases like Weinberger v. Wiesenfeld,
420 U.S. 636 (1975) and Califano v. Goldfarb, 430 
U.S. 199 (1977). The case at bar is not so 
extreme as the Social Security cases, for the 
respondents or their families were not deprived 
of benefits altogether; but it remains that 
women had to pay a higher price for benefits 
than their male counterparts had to pay. Because 
of the petitioner's discriminatory plan, the 
labor of women provided them with "less 
protection than [was] produced by the efforts of 
men." Califano v. Goldfarb, 51 L. Ed. 2d at 276.

11.
625



not meant to upset existing retirement 
funds created by federal statute, and it 
is unlikely that Congress used one defini­
tion of equality in creating its plans and 
intended another definition to govern 
private funds. In addition to the Social 
Security trust funds, Congress has created 
the following retirement and disability 
funds:

--Civil Service Retirement and Disabil­
ity Fund, 5 USCA §§ 8331 et seq.

--Central Intelligence Agency Retire­
ment and Disability Fund, Pub. L. 
88-643, 50 USCA § 403 note.

— Foreign Service Retirement and 
Disability Fund, 22 USCA §§ 1061 
et seq.

--Railroad Retirement Account, 45 USCA 
§§ 231 et seq.

Consistent with the Social Security 
trusts, and different from the retirement 
plan of the petitioner, none of these 
federal funds segregates the sexes: none 
of them withholds higher contributions

626
12.



from a female's check than from her male 
counterpart's, and all of them pay 
counterparts equal monthly benefits in 
retirement.

In addition to creating the retire­
ment and disability funds listed above, 
Congress has provided for retirement 
benefits to be paid to the following 
classes of federal employees:

—  armed forces personnel, 10 USCA
§§ 1401 et seq.

— judges, 28 USCA §§ 371 et seq.
There are no deductions from the 
employees' paychecks, so male and female 
counterparts receive equal monthly 
benefits in retirement at equal monthly 
cost to them during their working years.

Thus, it has been the consistent 
Practice of Congress, both in its pro­
vision for workers at large through the 
Social Security System and in its pro­
vision for federal employees through



trust funds and general-revenue obliga­
tions, to provide equal monthly retirement 
benefits to male and female counterparts 
at equal monthly cost to them. Neither 
the statutes creating the various federal 
retirement programs, nor their legislative 
histories, indicate Congress believed the 
female employees of government needed 
special treatement. Congress provided 
counterparts with equal monthly retire­
ment benefits at equal monthly cost to 
them because that reflected its defini­
tion of equality of opportunity in the 
context of retirement systems. Nothing 
in Title VII or in its legislative 
history suggests that Congress intended 
a different standard to apply to private 
systems.

The effect of Congress's practice 
has been to spread the cost of human
longevity over the class of all

14.
628



employees. For a retirement fund is 
an insurance scheme designed to spread 
the risk or cost of longevity over a class 
of persons, and whoever would establish 
a fund must decide into which classes he 
will divide people. Initially, there are 
two possibilities: a single class of all 
persons, or a set of subclasses of 
persons. If subclasses are chosen, there 
is the further choice of which subclasses 
to use: one possibility is to define them 
according to immutable characteristics 
like race or sex; another possibility is 
to define them according to the degree of 
presence of factors known to affect 
longevity (e.g. use of alcohol and 
tobacco, obesity, family medical history, 
job stress, exercise, etc.) Whichever 
set of subclasses be chosen, the effect 
of the choice is to spread the cost of 
longevity of that subclass over that

15. 629



subclass alone. But this was not the 
choice of Congress. Rather, Congress 
chose the class of all employees and 
spread the cost of human longevity over 
the universe of the entire labor force.
It is inevitable, of course, that shorter- 
lived persons will "subsidize" the 
benefits of longer-lived persons: 
depending on the classifications chosen 
for analysis, men will subsidize women, 
blacks will subsidize whites, smokers 
will subsidize nonsmokers, etc. But 
there is no unlawful discrimination, not 
only because Congress said so, but also 
because nothing in the Constitution or 
in the Title VII gives an employee reason 
to complain of being classified as a 
person.

Of course, the petitioner's 
shibboleth and cudgel is that men should 
not subsidize the benefits of women.

630
16.



(It is somehow indifferent to the fact 
that blacks are subsidizing the benefits 
of whites, smokers are subsidizing the 
benefits of nonsmokers, etc.) Evidently, 
Congress did not share the petitioner's 
belief. Congress believed that it was 
entirely proper to spread the risk of 
human longevity over the universe of all 
persons, regardless of sex, race, or any 
other factor. Some reasons why Congress 
thought as it did may be suggested.

First, unless funds are race- 
segregated as well as sex-segregated, 
blacks will subsidize the benefits of 
whites because blacks have a shorter life 
expectancy. (It may be the other way 
around, but it does not matter.)
Congress believed, and quite properly so, 
that neither race nor sex is a proper 
classification for this or any other 
purpose of employment (unless, in the

17.



case of sex, it is biologically necessary, 
as when a sperm donor or a wet nurse is 
needed).

Second, Congress may have had refer­
ence to unemployment insurance and 
workers' compensation plans, which do not 
distinguish between male and female 
employees, though one sex most certainly 
draws greater benefits and is "subsidized" 
by the other.

Third, Congress may have noted that 
men tend to earn higher income than 
women of like qualifications; this was 
the very reason for the Equal Pay Act, 29 
USCA § 206(d), and probably a large part 
of the reason for Title VII itself.
Taking this reality into account, Congress 
may have decided that, if men do subsidize 
benefits for women to some extent, the 
effect is the same as a progressive tax 
which falls more heavily on those better 
able to bear it.

632
18.



Finally, Congress may have recognized 
that life expectancies are only averages 
that are not accurate as applied to 
individuals, particularly when only a 
single factor like sex is employed. Many 
females predecease their counterparts, and 
many others survive them by less than the 
average number of years —  with the result 
that, for these women, under plans like 
the petitioner's the female never catches 
up with her counterpart: she has paid
more dollars in contributions, and she 
dies before she can recoup them in 
benefits. But this cannot happen in plans 
of Congress's creation, for it has defined 
equality in this context as the oppor­
tunity for each individual person to 
receive equal monthly retirement benefits 
at equal cost to him. Congress has 
decided that equality lies, not in
treating a person as a member of a class

19.

633



protected by Title VII, but in treating 
a person as an individual and guaranteeing 
him the same standard of living as any 
other person during his working years and 
during his retirement. This same emphasis 
on people's rights as individuals, not as 
members of classes, lies behind the 
emphasis on the individual in the language 
of §§ 703 (a) (1) and (2).

It is clear, therefore, that the 
petitioner's sex-segregated retirement 
funds did not conform to Congress's 
definition of equality of opportunity in 
the context of retirement funds. By 
charging women a higher rate of contri­
bution, the petitioner disadvantaged them 
by reducing their standard of living 
during the forty years of their working

5lives. It now remains to determine

"’inspite of this plain deviation from the 
intent of Congress, the petitioner argues that

20 .
634



w h e t h e r  t h e  p e t i t i o n e r  d i s a d v a n t a g e d  t h e

(Continued) its practice was approved by 
this Court in General Electric v. Gilbert. 429 
U.S. 125 (1976). Yet the petitioner ignores a 
significant difference between Gilbert and its 
predecessor, Geduldig v. Aiello. 417 U.S. 484
(1974), on the one hand, and the case at bar, on 
the other. Geduldig and Gilbert held that an 
employer may exclude a risk from an insurance 
package; however, no risks were excluded from the 
petitioner's plan: indeed, there was only one 
risk, longevity, and it was fully covered because 
benefits were payable until death.

The troublesome class in Geduldig and Gilbert 
was composed of pregnant women; the effect of 
those cases is to allow an employer to leave the 
cost of pregnancy on pregnant women, rather than 
spreading this cost over the class of all 
employees. The effect of the petitioner's plan 
was quite different. The troublesome class was 
composed, not of women who are pregnant, but of 
women who outlive their male counterparts. If 
the petitioner's plan allocated the cost of 
benefits for such women —  approximately 16% of 
the class of women; see Henderson v. Oregon, 405 
F. Supp. 1271 (D. Ore. 1975) —  to that class 
itself, this case would be analogous to Geduldig 
and Gilbert; in fact, however, the petitioner's 
Plan allocated the cost of benefits for the 
superannuated 16%" to the class of all women, as 
all women were assessed a higher rate of contri­
bution in order to fund benefits for the few 
women who outlived their counterparts. There was 
no sex discrimination in Geduldig and Gilbert 
because both men and nonpregnant women were 
protected from the cost of benefits for pregnant 
women, and there would have been no sex 
discrimination in the case at bar if both men 
and shorter-lived women had been protected

21.



respondents because of their sex.

II. By measuring and spreading the cost 
of longevity over sex-segregated 
classes, the petitioner disadvantaged 
its female employees because of their 
sex.

The petitioner claims it charged 
females higher contributions than their

(Continued) from the cost of extra female 
longevity. But there was sex discrimination in 
the case at bar because no women were protected 
from the cost of benefits for the few who outlived 
their counterparts, just as there would have been 
discrimination in Geduldig and Gilbert if the cost 
of pregnancy had been assessed, not to pregnant 
women only, but to all women —  and no men.

To have eliminated the discrimination in the 
case at bar, the petitioner would have had to 
protect both men and shorter-lived women from the 
cost of extra female longevity (as both men and 
nonpregnant women were protected from the cost of 
pregnancy) or to protect neither men nor women 
from this cost. The former alternative would 
have been possible (assuming the date of death 
of a given individual cannot be predicted with 
certainty) only by cutting off benefits for all 
retirees at the same age, which would have been 
undesirable. The latter alternative would have 
been possible simply by spreading the cost of 
extra female longevity over the class of all 
employees, which could have been achieved by any 
of the means discussed below at p. 28-30.

22.636



male counterparts because sex-segregated 
mortality tables reveal that, of the class 
of men and women aged 65 years, more 
women survive to age 66 than do men; more 
women survive to age 67 than do men; etc.: 
that is, the woman whose date of death 
coincides with the sum of the ages at 
death divided by the number of deaths for 
her sex —  the "average women" —  outlives 
the "average man." The petitioner asserts 
that it relied on sex-segregated tables 
because no others were available. Should 
this assertion prove false, the peti­
tioner's sex bias would be clear, however 
widely it may have been shared.

And is not this assertion patently 
false? Whatever data were available to 
insurance companies were available to the 
petitioner's actuaries, and for many 
years insurance companies have based their 
decisions on whether to issue life and

23.
637



annuity policies, and have adjusted their 
rates for these policies, by taking into 
account not only sex, but also various 
other factors which affect longevity, 
including use of alcohol and tobacco, 
obesity, family medical history, job 
stress, exercise, etc. Sex is one 
predictor of longevity, but there are 
others.^

Why did the petitioner choose sex 
instead of one of the other predictors, 
or a combination of them? Why did the 
petitioner segregate and classify its 
female employees to their disadvantage

The life styles of women are changing. 
Increasingly, women are assuming roles in 
employment which were in the past reserved for 
men, and surely this effect was foreseeable to 
Congress, if it was not its very purpose, when it 
added the sex clause to Title VII. It can be 
expected, therefore, that sex will decrease in 
importance as a predictor of longevity, and it is 
not unreasonable to suppose that Congress could 
have foreseen this possibility as well.

638 24.



in violation of the clear language of
§ 703(a)(2)? If it claims the reason was
administrative convenience, it must be
admitted that sex-segregated mortality
tables were easy to use, much easier than
treating employees as individuals, some
of whom drink alcohol, smoke tobacco, are
overweight, have high blood pressure, do
stressful work, or are female. But this
Court has never allowed administrative
convenience to stand as justification for
unlawful discrimination. Califano v.
Goldfarb, 430 U.S. 199 (1977); Weinberger
v. Wiesenfeld, 420 U.S. 636 (1975). As
the Court has written:

"[A]ny statutory scheme which draws a 
sharp line between the sexes, solely 
for the purpose of achieving admin­
istrative convenience, necessarily 
commands 'dissimilar treatment for 
men and women who are . . . similarly 
situated,' and therefore involves the 
'very kind of arbitrary legislative 
choice forbidden by the [Constitution]
• • . .' Reed v. Reed 404 U.S. at 77." 
Frontiero v, Richardson. 411 U.S. 677 
at 690 (1973).

25.



Surely Congress intended to afford women 
at least as much protection from sex 
discrimination in employment as the 
Constitution affords them from discrim­
ination in other areas. But when the 
the petitioner classified its employees 
according to sex in order to predict their 
longevity, studiously ignoring every other 
relevant classification which also 
predicted longevity, it unlawfully
discriminated against its female

7employees because of their sex.
The petitioner argues that it charged 

women higher contributions, not because

It may be argued that there is no end to 
the number of factors which affect longevity, 
yet there must be an end to the number of factors 
considered in funding a retirement plan. But 
this argument does not advance the petitioner's 
case because the answer is not to rely 
exclusively on a factor which is a classification 
prohibited by Title VII; the answer is simply to 
ignore all such factors and use a unisex 
mortality table.

6 4 0
26.



they were women, but because they outlive 
men. The availability of predictors of 
longevity besides sex conclusively 
answers this argument, for non-smokers 
outlive smokers, etc., and the petitioner 
did not assess these persons higher 
contributions. The legislative history of 
Title VII is an additional answer. An 
amendment was offered which would have 
limited the protection from sex 
discrimination to discrimination based 
solely on sex. The amendment was 
defeated. 110 Cong. Rec. 2728. Neither 
sex itself, nor a characteristic which 
might be associated with sex, may lawfully 
be the basis of an employment decision. 
Congress knew that sex is an involuntary 
and immutable characteristic, and it 
prohibited employers from disadvantaging 
individual women because of a character­
istic of the class (longevity) which

27.
641



might be —  but generally is not -- true 
of them as individuals.

The petitioner argues that it used 
sex-segregated mortality tables because 
there was no alternative way accurately 
to measure the longevity of its employees 
and fund their retirement benefits. This 
argument fails on two counts, for it is 
not only simply wrong but, even if it is 
right, it ignores the difference between 
measuring a cost and funding that cost.

It is wrong to argue that sex- 
segregated mortality tables were the only 
way accurately to measure longevity 
because any employer with a work force 
the size of the petitioner's could easily 
have constructed a unisex mortality table 
applicable to itself by determining the 
ratio of its male-to-female employees 
and extrapolating from sex-segregated 
tables. Once such a table was constructed

642
28.



(of course, it could have been modified 
from time to time to reflect changes in 
the composition of the work force), it 
could have been used to predict longevity 
with as much accuracy as the sex- 
segregated tables on which it was based, 
and it could also have been used to 
determine equal contributions from male 
and female counterparts to the retirement 
fund.

The argument that only sex-segregated 
mortality tables were available fails on 
a second count because, assuming a unisex 
table could not have been constructed, 
there remained the fundamental difference 
between measuring a cost and funding that 
cost. Even if sex-segregated mortality 
tables were absolutely necessary to 
predict longevity, and from it the costs 
of future retirement benefits, such tables 
did not dictate that females had to

29.
643



contribute more than males. Employee
contributions to the fund could have been
set, in the first instance, by reference
to male mortality tables; then, any
shortfall in funding could have been
supplied directly by the petitioner or
could have been assessed in equal shares
to counterparts. Either way, the
petitioner's plan would have remained

8actuarially sound.
The petitioner discriminated against 

women by segregating them into a separate 
class from men. The petitioner could 
have used a discrete number of factors to 
define the classes over which it measured 
and spread the cost of longevity; men and 
women, blacks and whites, et al. would

...................." q

In other words, the petitioner has always 
been able to spread the cost of longevity over 
the class of all employees. Indeed, that is its 
present practice, as required by Cal. Gov. Code 
§ 7500.

644
30.



have been mixed throughout these classes, 
and there would have been no discrimin­
ation. The petitioner could have used 
all possible factors for measuring and 
spreading the cost of longevity by 
constructing a unisex mortality table; 
each person would have been treated, not 
as a member of a class, but as a human 
being, equally suseptible to the various 
influences on longevity, and no one would 
have had reason to complain. Or the 
petitioner could have relied on sex- 
segregated mortality tables to predict the 
cost of longevity and, once the cost was 
known, spread that cost equally over the 
class of all employees; again, each person 
would have been in the same position as 
any other person. But the petitioner did 
none of these. Ignoring Congress's 
example of equality in retirement funds, 
the petitioner utilized sex both as the

31.
6 4 5



only predictor of longevity and as the 
basis for funding its segregated retire­
ment plans. That insurance companies are 
guilty of the same discrimination is no 
excuse for the petitioner; sex discrimin­
ation in America is old and deep, but 
Title VII meant to end it in the field of 
employment. A simpler case of sex 
discrimination cannot be imagined: the 
petitioner segregated women into a 
separate class from men, and it broke 
the law.

CONCLUSION

It would be a strange anomaly if
this Court should say to the respondents
herein: "When Congress created the Social
Security System, it intended for you and
your male counterpart to enjoy the same
standard of living during your working

32.



years and during your retirement. When 
Congress passed the Equal Pay Act, it 
intended to guarantee that your employer 
would not force you to accept a lower 
standard of living than he provided your 
counterpart. When Congress provided 
for the retirement of civil servants, it 
observed these principles by offering 
counterparts equal standards of living 
during their retirement at equal cost to 
them during their working years. But 
when it passed the Civil Rights Act, 
Congress undid much of what it had 
previously done, for it intended to 
allow the petitioner to charge you a 
higher rate of contribution to the retire­
ment fund, and relegate you to a lower 
standard of living than your counterparts, 
during the forty years of your working 
lives. ”

3 3 .

647



For these reasons, the judgment of the 
Court of Appeals should be affirmed.

December, 1977

Respectfully submitted,
Michael Evan Gold 
Fred Okrand 
Jill Jakes
Attorneys for Amicus Curiae 
ACLU Foundation of Southern 
California

648
3 4 .



In  T h e

Supreme Court o f the United States

O c t o b e r  T e r m , 1977

N o. 76-1810

CITY OF LOS ANCxELES, DEPARTMENT 
OF WATER AND POWER et al.

Petitioners, v. ’

MARIE MANHART et al„
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Ninth Circuit

BRIEF FOR THE ASSOCIATION FOR WOMEN IN  
MATHEMATICS AN D  THE WOMEN’S EQUITY  

ACTION LEAGUE AS AMICI CURIAE

Marguerite Rawalt,
1600 S. Joyce,
Arlington, Va.,

Carolyn I. Polowy,
226 East 39th Street,
Baltimore, Md. 21218, 

Margaret Young,
1501 Broadway,
New York, N.Y. 10036, 

Attorneys for the Association 
For Women In Mathematics 
and The Women’s Equity 
Action League.

649





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

Interest of Amici Curiae .....................................  1

Argument:
A Prim a Facie Violation of Title VII Is 
Established Where All Female Em­
ployees Must Pay Extra Contributions 
To An Employment Based Pension Plan 
In Order To Receive The Same Benefits 
As Similarly Situated Male Employees 3

Conclusion .................................................................. 13

T A B L E  O F A U T H O R IT IE S

Cases

Bartmess v. Drewery’s U.S.A., Inc., 444 F,2d 1186
(7th Cir,), cert, denied, 404 U.S. 936 (1971) . 5

Chastang v. Flynn & Emrich Co., 541 F.2d 1040,
(4th Cir. 1976) ....................................................  5

Cleveland Board of Educators v. LaFleur, 414
U.S. 632 (1974) .....................................   11

E.E.O.C. v. Colby, -----  F, Supp. ___  (D. Me.
1977) ......................................................................  6

Fillinger v. E ast Ohio Gas Co., 4 FEP Cases 73
(N.D. Ohio 1971) ...............................................  5

Fitzpatrick v. Bitzer, 390 F. Supp. 278 (D. Conn.
1974), 519 F.2d 559 (2d Cir.), modified on
other grounds, 424 U.S. 445 (1976) ..............  5

Frontiero v. Richardson, 411 U.S. 677 (1973) .... 11
General Electric v. Gilbert, 429 U.S. 125 (1976) 3, 4,6,11 
Henderson v. State of Oregon, 405 F. Supp. 1271

(D. Ore. 1975) .....................................................  5

651



page
Rosen v. Public Service Electric and Gas Co., 477

F.2d 90 (3rd Cir. 1973) ..................................... 5
Turner v. Dept, of Employment Security, 423

U.S. 44 (1976) .....................................................  11
Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) .. 11
U.S. Constitution:

Fifth Amendment ....................................   11
Fourteenth Amendment ...................    11

ii

Statu tes

Title VII of the 1964 Civil Rights Act, as 
amended by the Equal Employment Oppor­
tunity Act of 1972, 42 U.S.C. 2000e-2 et seq.,
(1970) .................................................................. passim

Title VII of the 1964 Civil Rights Act, as 
amended by the Equal Employment Oppor­
tunity Act of 1972, 42 U.S.C. 2000e-2(a)(l) et 
seq., (1970) ...................................    4

Title VII of the 1964 Civil Rights Act, as 
amended by the Equal Employment Oppor­
tunity Act of 1972, 42 U.S.C. 2000e-2(a)(2) et 
seq., (1970) .................      4

Other

American Council of Life Insurance, Pension
Facts 1976 ..........................................................  6,7

Bergman and Gray, “Equality in Retirement 
Benefits,” Civil Rights Digest, 25-27 (Fall
1975) ....      9

Bernstein and Williams, “Title VII and the 
Problems of Sex Classifications in Pension 
Programs,” 74 Colum. L. Rev. 1203 (1974) . 10

6 5 2



Ill

Comment, “Gender Classifications in the Insur­
ance Industry,” 75 Columbia Rev. 1381
(1975) ...........................................................       10

Fellers, et. al., Handbook for Pension Planning
(1949) ............    7,8

Fellers and Jackson, Non-Insured Pension Mor­
tality: the UP-1984 Table (May 1975) .........  6,7,9

Martin, “Gender Discrimination In Pension 
Plans: Comment,” Journal of Risk and 
Insurance 141 (1977) ............................................ 11

6 5 3





In  T h e

Supreme Court o f the United States

O c t o b e r  T e r m , 1977

N o. 76-1810

CITY OF LOS ANGELES, DEPARTMENT 
OF WATER AND POWER et al.,

Petitioners,

MARIE MANHART et al.,
Respondents.

On Writ of Certiorari to the 
United States Court of Appeals 

for the N inth Circuit

BRIEF FOR THE ASSOCIATION FOR WOMEN IN 
MATHEMATICS AND THE WOMEN’S EQUITY 

ACTION LEAGUE AS AMICI CURIAE

IN T E R E S T  O F A M IC I C U R IA E 1
The Association for Women in Mathematics is a non­

profit corporation formed in 1971 to encourage greater 
participation of women in mathematics by psychologi­
cal reinforcement, by bringing women mathematicians 
together and by working wherever possible to encour­
age and implement the principles of affirmative action 
among men and women mathematicians. The Associa­
tion’s membership is international and includes female

1 The parties’ letters of consent to the filing of this brief 
have been filed with the clerk pursuant to Rule 42(2).

6 5 5



2

and male mathematicians, statisticians, engineers, 
accountants and other professionals. A large proportion 
of the membership is engaged in teaching and research 
a t American colleges and universities. The Association 
has been actively seeking to modify employment based 
pension plans which differentiate on the basis of sex in 
the payment of benefits or in the standards for 
determining contributions.

The Women’s Equity Action League (WEAL) is a non­
profit nationwide membership organization incorpo­
rated under the laws of Ohio with national offices in the 
District of Columbia. Established in 1968, WEAL seeks 
to promote greater economic progress for American 
women, to press for full enforcem ent of anti- 
discrimination laws on behalf of women and to seek 
correction of de facto sex discrimination. WEAL has 
placed primary emphasis on the elimination of sex- 
discrimination in employment and education and has 
pursued its goals through litigation, monitoring the 
enforcement activities of federal and state agencies and 
through research and publication of pertinent informa­
tion and data. One of the employment practices which 
WEAL has challenged is the differentiation between 
men and women in employment based pension plans. 
By filing charges with the Equal Employment Oppor­
tunity Commission on behalf of members, WEAL has 
specifically attacked the practice of higher education 
institutions providing pension plans which pay lower 
periodic pension benefits to women than  they pay to 
male employees. The practice challenged here is one 
aspect of the larger problem of pension and employ­
ment discrimination which WEAL seeks to eliminate.

It is the intention of amici to discuss the component 
parts and structure of pension plans within the 
framework of Title VII. While it is conceded that the 
single issue presented in this case concerning differenti­
ation by sex in pension contributions can be decided

656



3

without addressing the larger question of whether Title 
VII prohibits the use of sex-based actuarial tables in the 
pension industry for the computation of costs or 
benefits, discussion of the broader questions has been 
initiated throughout this litigation and is of considera­
ble concern to persons affected by the sex based 
contribution and benefit differentials which exist under 
certain pension plans, in particular those operated by 
public employers and higher education institutions.

A R G U M E N T

A PRIMA FACIE VIOLATION OF TITLE VII IS ESTABLISHED 
WHERE ALL FEMALE EMPLOYEES MUST PAY EXTRA CONTRI­
BUTIONS TO AN EMPLOYMENT BASED PENSION PLAN IN 
ORDER TO RECEIVE THE SAME BENEFITS AS SIMILARLY 
SITUATED MALE EMPLOYEES.

Resolution of the principal discrimination issue in 
this case rests on whether Title VII of the 1964 Civil 
Rights Act, as amended, 42 U.S.C. 2000e-2, et seq., 
permits an employer to provide a retirement plan as a 
fringe benefit which requires all female employees to 
pay higher monthly contributions in order to receive the 
same periodic benefits as male employees who have 
worked the same number of years at the same salary 
and retired a t the same age. Drawing analytical 
support from General Electric v. Gilbert, 429 U.S. 125
(1976), the pension issue raised by the practice of the 
Employer, the City of Los Angeles Department of Water 
and Power, has been characterized by its proponents as 
one dealing with a differentiation based on longevity 
rather than  sex in order to remove the challenged 
practice from the ambit of scrutiny under Title VII.

In the operation of the City of Los Angeles, Depart­
ment of Water and Power retirement plan, referred to 
hereafter as the Department’s plan or the pension plan, 
regardless of other reliable predictors of longevity, male 
employees are placed in a single category based on their



4

sex for the purpose of determining their contributions to 
the pension plan. Al! female employees, without regard 
to predictable estimates for individual longevity, are 
treated as the longer-lived of the two groups based 
solely on their sex. This subdivision of the employee 
population is obviously not one based on longevity. If it 
were, all persons, male and female, who have certain 
characteristics and lifestyles which contribute to 
longevity would be placed in a common class of 
predictably long or short lived persons. Since all men, 
regardless of their prospects for old age are treated as if 
they will die younger than  similarly situated females, 
and all women, regardless of indications of probable 
early death, are placed in a single category, unlike the 
subclassification of pregnant women discussed in 
General Electric v. Gilbert, supra, the classifications 
used in the Department’s plan to determine costs and 
pension contributions separate men and women into 
separate sex based classes without any other distinc­
tion.

As a general proposition, Title VII of the 1964 Civil 
Rights Act, as amended, prohibits covered employers 
from treating male and female employees differently 
based on their sex. Under Section 703(a)(1), (42 U.S.C. 
2000e-2(a)(l)), an employer shall not “fail or refuse to 
hire or to discharge any individual or otherwise to 
discriminate against any individual with respect to his 
compensation, terms, conditions or privileges of employ­
ment because of such individual’s . . . sex . . .” Under 
Section 703(a)(2), (42 U.S.C. 2000e-2(a)(2)), an Employer 
may not “limit, segregate or classify” employees 
because of their sex. The plain language and interpreta­
tions of Title VII support a conclusion tha t male and 
female employees may not be treated, for the purpose of 
employment benefits, including employment based 
pensions, as separate classes of employees because of 
their sex. The danger of disadvantaging one group

6 5 8



5

which is inherent in sex based treatm ent of employees 
is precisely the harm  which Title VII aims at eliminat­
ing.

The lower courts have uniformly held th a t Title VII 
applies to pension plans as terms or conditions of 
employment and, with one exception, have also con­
cluded tha t the Act prohibits different treatm ent of men 
and women in the amount of benefits paid or in the 
terms established for a pension plan. See Chastang v. 
Flynn & Emerich Co., 541 F.2d 1040 (4th Cir. 1976), 
where the Employer’s pension plan violated Title VII 
because individual male employees who retired early 
received approximately half the benefits th a t compara­
ble female early retirees received; Fitzpatrick v. Bitzer, 
390 F. Supp. 278 (D. Conn. 1974), 519 F.2d 559 (2d Cir.), 
modified on other grounds, 424 U.S. 445 (1976), where 
the Employer’s plan violated Title VII because it 
discriminated in favor of women over men in the 
number of years of service required for retirement and 
in the computation of retirement benefits; Rosen v. 
Public Service Electric & Gas Co., All F.2d 90 (3rd Cir. 
1973), where Title VII was violated because stricter 
requirements were applied to male employees in regard 
to age and benefit amounts for early retirement and 
female employees were discriminated against in regard 
to mandatory retirement age; Bartmess v. Drewery’s 
U.S.A., Inc., 444 F.2d 1186 (7th Cir.), cert, denied, 404 
U.S. 936 (1971), where an employment based pension 
plan which established a lower m andatory retirement 
age for women was held to violate Title VII’s sex 
discrimination prohibition; Fillinger v. E ast Ohio Gas 
Co., 4 FEP Cases 73 (N.D. Ohio 1971), where an 
employment based pension plan which required women 
employees to retire a t age 62 and males at age 65 was 
found to violate Title VII; Henderson v. State of 
Oregon, 405 F. Supp. 1271 (D.Ore. 1975), where an 
employer plan which paid lower benefits to all female

6 5 9



6

employees was held to violate Title VII; cf„ E.E.O.C. v.
Colby College, -----  F. Supp. ___ (D.Me. 1977), where
the court applied the language of Title VII as inter­
preted in General Electric v. Gilbert, supra, to permit an 
employment based pension plan which paid lower bene­
fits to all female employees and a life insurance plan 
which paid lower benefits to all male employees.

In order to lay to rest the question of whether or not a 
prima facie case of sex discrimination is established 
under Title VII where all females must pay extra 
contributions in order to receive the same pension 
benefits as comparable males, it is necessary to 
examine the proposition of “actuarial equivalence” since 
monetary values which are not equal in fact may be 
described as actuarially equal or theoretically equival­
ent. The phrase “actuarially equivalent” has been 
defined to mean tha t if “the present values of two series 
of payments are equal, taking into account a given 
interest rate and mortality according to a given table, 
the two series are said to be actuarially equivalent on 
this basis.” American Council of Life Insurance, 
Pension Facts, 1976, p. 44. The two key variables used in 
determining the actuarial equivalence of two sums are 
the interest rates paid on the invested funds and the 
mortality tables utilized in estimating costs and/or 
potential benefits. Thus, a male and female employee 
who are similar in all other relevant respects will have 
actuarially equivalent pensions if the same mortality 
table is used to compute costs and benefits, and if the 
interest earned by the fund is the same. To illustrate the 
impact of an increase in interest earnings on a pension 
fund, one expert has stated tha t “a change from one 
mortality basis to another is generally of lesser 
importance than  a 14% change in the valuation rate of 
interest.” Fellers and Jackson, Non-Insured Pension 
Mortality; The UP-1984 Table, (1975), p. 30. The 
importance of interest earnings on pension plans

660



7

established by public employers has been described in 
another way:

In the past, investments by state and local plans 
tended to be more conservative than private plans. 
In recent times, however, their portfolios have 
become more diverse, including a higher percen­
tage of common stock, in order to increase 
investment income. According to actuarial esti­
mates, in a mature, reasonably well-funded plan, a 
one percent annual increase in investment earn­
ings, produced from asset appreciation, realized 
gains or interest, can produce a ten percent 
decrease in annual cost. American Council of Life 
Insurance, Pension Facts 1976, p. 33.

Actuarial equivalency is also affected by the mortal­
ity table which is chosen by an actuary to assist in 
estimating costs by predicting the number of person 
years a fund must cover. Constructed to estimate 
probable numbers of deaths a t various ages, a mortality 
table may be, and frequently is, modified to reflect 
changes in group experience. Fellers, et al., Handbook 
for Pension Planning (1949), pp. 153-156. It is note­
worthy tha t the so-called “single sex” tables which are 
most frequently used by pension funds are, for the most 
part, mortality tables constructed from male experience 
only:

As a practical m atter different mortality tables are 
rarely used for males and females. What has been 
done more frequently in practice is to use an age 
setback in the male table as an approximation of 
female mortality. . . . The mortality table tha t is 
eventually used for valuing females usually has 
been based on all-male mortality experience and 
does not reflect any of the significant characteris­
tics of the female mortality experience. Fellers and 
Jackson, supra, p. 4.

Mortality tables are useful as tools in estimating the 
total costs or liability of a pension plan which, in turn, 
helps to define the contribution rates necessary to fund 
a certain benefit level. Mortality tables are not, however,

661



the only factors used by actuaries to estimate the costs 
of funding a pension plan. Interest earned on invest­
ments, as indicated earlier, is another important 
variable. Other considerations include capital apprecia­
tion and depreciation, the rate of employee turnover, 
salary scales and projected salary increases, method of 
plan administration, retirement age, benefit levels, 
vesting provisions and level of employee contributions. 
Fellers, supra, pp. 150-166. The flexibility in estimating 
costs provided by these considerations is demonstrated 
by the following statem ent concerning the impact 
which an increase in retirement age will have on 
reduction in costs:

. . . [A]ssume for the moment th a t normal retire­
ment will not take place a t age 65 as assumed, and 
we w ant to know the effect on costs if retirements 
(including early retirements) take place, on the 
average, a t age 66 or a t age 67. On this basis one 
might count on the long-range costs being reduced 
by possibly seven percent if retirements take place 
a t age 66, on the average, or by 15 percent if 
retirements take place a t age 67, if we can assume 
th a t there will be no very substantial mortality 
improvement among people over age 65. Fellers, 
supra, a t 166.

Besides being only one among many factors consi­
dered by actuaries in pricing the cost of pension bene­
fits, mortality tables can be restructured by actuaries 
to reflect changing social attitudes or legal require­
ments as they are periodically restructured to reflect 
increases in longevity. Ju st as race is no longer 
considered in establishing mortality tables, sex should 
not be either:

Federal Government pressure via the E.E.O.C. for 
treating males and females in exactly the same 
way recalls to mind the fact tha t the government 
took a similar position some decades ago with 
respect to race and imposed a requirement that 
insurance companies charge exactly the same



Q

premiums for the same coverage irrespective of 
race, in spite of the fact tha t all of the published 
mortality experience then available, including the 
mortality statistics published with every decennial 
census indicated clearly tha t there were very 
significant differences in mortality rates and 
trends by race. Fellers and Jackson, supra, p. 3.

Unlike pregnancy which affects a subclass of 
females, death is egalitarian in its reach. What sex- 
divided mortality tables obscure is the significant 
overlap tha t in fact exists in male and female death 
ages. A comparison of death overlap between men and 
women illustrates the similarity between them — a 
similarity in death ages tha t far outweighs the 
differences. Eighty-four percent of men and women who 
live beyond age 65 share common death ages. Out of a 
group of 1000, if each woman who dies at a particular 
age is paired with a man who dies at the same age, 
eighty-four percent of the population will have been 
paired. The remaining 16 percent are women who live 
longer, unmatched by men, and men who die earlier, 
unmatched by women. Bergmann and Gray, “Equality 
in Retirement Benefits,” Civil Rights Digest, Fall 
(1975), pp. 25-27.

It would be more in keeping with the insurance 
principle of sharing risks over a large group to treat 
retirees in a particular plan as “persons” and thus 
spread the costs of the longer-lived and the savings of 
the shorter-lived, which are not exclusive to either sex, 
over the entire pension plan population. Some men 
do live longer than  the average life expectancy for 
their own sex and longer than the average female life 
expectancy. A retired male annuitant who outlives the 
statistically or actuarially “average” male or female is 
not thereafter punished for his longevity by a reduction 
in monthly pension benefits. A female, though, is 
penalized from the outset of her employment with the 
Los Angeles Department of Water and Power for her

663



10

presumed longevity, whether or not it is likely that she 
will actually outlive the “average” male or the “aver­
age” female. Where sex separate tables are used to 
determine contributions or benefits, every retired female 
employee is penalized because a few women live longer 
and every m an benefits because a few men die earlier.

It is apparent th a t in comparing death ages for men 
and women a significant similarity is demonstrated 
which could be the basis for merging sex based 
mortality tables. Thus, just as an entire employee 
complement now shares the risks and benefits of 
individual involvement in aviation, military service or 
dangerous sports, the use of tobacco, drugs or alcohol, 
or even a poor medical history, a sex neutral mortality 
table would spread the risks and benefits of sex 
characteristics over the entire annuitan t population. 
See, Bernstein and Williams, Title VII and the Problem 
of Sex Classifications in Pension Programs, 74 Colum. 
L. Rev. 1203, 1220 (1974); Comment, “Gender Classifica­
tions In the Insurance Industry,” 75 Colum. L. Rev. 
1381, 1381 (1975).

The use of sex differentiated mortality tables to 
determine pension costs and contributions establishes 
what in effect is a conclusive presumption that all 
women, regardless of any other relevant considerations, 
will live longer than  all similarly situated men. In the 
face of a significant overlap in death ages between men 
and women, this presumption is sharply rebutted. 
While it may be actuarially convenient for pension 
trusts and insurance companies to divide humanity into 
two sex-based subclasses th a t empirically or statisti­
cally conform to established models, such sex-based 
treatm ent should not be permitted where factors other 
than  sex may be used to predict longevity and to 
determine contributions and benefits. Administrative 
ease has been rejected as a defense to sex based 

664 conclusive presumptions in cases decided under the



11

Fifth and Fourteenth Amendments. Cleveland Board of 
Education u. LaFleur, 414 U.S. 632 (1974); Frontiero v. 
Richardson, 411 U.S. 677 (1973), Turner v. Department of 
Employment Security, 423 U.S. 44 (1976); Weinberger v. 
Wiesenfeld, 420 U.S. 636 (1975). To the extent tha t these 
cases define activity as prohibited sex-discrimination 
under the Fifth or Fourteenth Amendment, they are a 
“useful starting point” in interpreting Title VII’s sex 
discrimination prohibition in the area of pension 
benefits. General Electric v. Gilbert, supra, at 133.

Under Title VII, employment decisions and practices 
are to be sex neutral and sex based differentiations 
cannot be justified by sex based statistics, beliefs or 
formulas. Thus, an employer could not decide to pay 
women lower salaries than  comparable male employees 
because the employer knows for a fact, supported by 
statistics, tha t women as a class earn lower salaries 
than men or because the employer believes tha t women 
need less money than  men. Thus, if an employer could 
demonstrate through the use of a sophisticated formula 
that his female employees as a class receive more wages 
than his male employees and tha t the male and female 
wages were actuarially equivalent, would it be permissi­
ble under Title VII for the employer to pay individual 
females lower wages based on this formula? One expert 
phrases the issue in regard to mortality tables an­
other way.

For any person, the variables race and sex are 
static, while age is a dynamic variable increasing 
at the same rate for everyone. The values of the 
race/sex variables for any individual are known 
from birth, but everyone is “assigned” an age 
variance with a value tha t is unknown until death. 
[May an actuary] . . . ignore all static variables 
except sex and still claim tha t the use of sex alone 
is not arbitrary and discriminatory? Martin, 
Gender Discrimination In Pension Plans: Com­
ment, Journal o f Risk and Insurance, 145, 148
(1977). 665



12

There are no valid reasons related to the functioning 
of the Department of Water and Power, or to the 
fundamental purpose of retirement plans or the finan­
cial needs of male and female retirees which would 
justify or require sex-based distinctions in contribution 
formulas. All other benefits and risks attributed to 
subclasses of employees are shared over the entire 
employer population. The burden placed on female 
employees of subsidizing all longer-lived retirees should 
be equally borne by male and female employees since 
both are potential recipients of long-term benefits and 
some members of each sex will in fact live beyond the 
statistical models established by the insurance and 
pension industry. Requiring women as a class to pay 
more to receive the same pension benefits as compara­
ble males is prima facie sex discrimination under Title 
VII tha t cannot be justified based on a discriminatory 
sex-based formula even if th a t formula is actuarially 
acceptable. Both the practice of unequal contributions 
and the causative factors, the single-sex mortality 
tables, should be prohibited in employment based 
pension plans under Title VII.*

* The substantial contributions of Professor Mary W. 
Gray in the preparation of this brief are grateful acknowl­
edged.

666



13

CONCLUSION
For the foregoing reasons, the decision of the Ninth 

Circuit Court of Appeals should be affirmed.

Respectfully submitted,
M a r g u e r it e  R a w a lt ,

1600 S. Joyce,
Arlington, Va.,

Ca r o ly n  I. P o lo w y ,
226 East 39th Street,
Baltimore, Md. 21218,

M a r g a r et  Yo u n g ,
1501 Broadway,
New York, N.Y. 10036,

Attorneys for the Association 
For Women In Mathematics 
and The Women’s Equity 
Action League.

667





3u %  g>upretttf Court
OF THE

Untied States

O c t o b e r  T e r m , 1977

No.76-1810

C i t y  o f  L o s  A n g e l e s , D e p a r t m e n t  o f  
W a t e r  a n d  P o w e r , e t  a l . ,  

Petitioners,

vs.

M a r i e  M a n h a r t , e t  a l . ,
Respondents.

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

BRIEF FOR THE INTERNATIONAL UNION, UNITED AUTOMOBILE, 
AEROSPACE AND AGRICULTURAL IMPLEMENT 

WORKERS OF AMERICA (UAW ) 
and

AMERICAN FEDERATION OF LABOR AND 
CONGRESS OF INDUSTRIAL ORGANIZATIONS 

AS AMICI CURIAE

J .  A l b e r t  W o l l  
R o bert  C. M a y e r  
Ma r sh a  S .  B er zo n  

736 Bowen Buildinq 
815-1 5th Street, N.W.
Washington, D.C. 20005

L a u r e n c e  G old
815-16th Street, N.W.
Washington, D.C. 20006

Attorneys for AFL-CIO

J o h n  A . F il l io n  
A n n e  M . T r e b il c o c k

8000 East Jefferson Avenue 
Detroit, Michigan 48214

S t e p h e n  P. B er zo n  
F r ed  H. A l t s h u l e r

I 77 Post Street
San Francisco, California 94108

A tto r n e y s  fo r  U A W

669





Subject Index

Page
Interests of amici curiae ............................................................. 2
Summary of argument ................................................................. 4
Argument ......................................................................................  9

I
The policy requiring all women to contribute more 

toward pension benefits than all men is a per se viola­
tion of Title VII unless there is a statutory affirmative 
defense ................................................................................  9

II
Congress intended ordinary Title VII principles to apply 

to employee benefit programs .........................................  18

A.
The department’s pension plan does not treat similarly 

situated women and men eq u a lly ...............................  19

B.
The group nature of insurance requires no special 

Title VII standard .................................................. 24
1. n a tio n a lity ................................................................. 27
2. Economics ................................................................  32
3. Subsidization ...........................   36
4. Indices of legislative intent ...................................  39

III
The Bennett Amendment to Title V II does not permit 

express gender-based differences in employee benefit 
plans .................................................................................... 45

A.
The equal pay act does not cover employee benefit 

plans 46



Subject I ndexii

B. Page
If  employee benefit plans are covered by the Equal 

Pay Act, that Act does not “authorize” express 
gender-based differences in such plans ......................  53
1. Exception (iv) to the Equal Pay Act ...............  53
2. Legislative intent as to pension p la n s ...................  57

Conclusion ............................................................................ 62

672



T able o f A u th orities Cited

Cases Pages
Bartmess v. Drewrys, 444 F.2d 1186 (7th Cir. 1971) .............  52
Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) 22
Brennan v. Modern Chevrolet Co., 363 F.Supp. 327 (N.D.

Tex. 1973) ................................................................................  49
Brennan v. Veterans Cleaning Service, 482 F.2d 1362 (5th

Cir. 1973) ................................................................................  49
Brooklyn Savings Bank v. O’Neil, 324 U.S. 697 (1945) . . .  48
Bums v. Bohr Corp., 346 F.Supp. 994 (S.D.Cal. 1977) . . .  22

Ca.lifa.no v. Goldfarb, 430 U.S. 199 (1977) ..................... 28,31,61
Coming Glass Works v. Brennan, 417 U.S. 188 (1974) . . .  .55, 57 
Craig v. Boren, 429 U.S. 190 (1977) ................... 6,15,30,31,32

Dothard v. Rawlinson, .....  U.S......... , 45 U.S.L.W. 4888
(1977)  4,11,13

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ...........................  17
Frontiero v. Richardson, 411 U.S. 677 (1973) ...................... 30,31

Geduldig v. Aiello, 417 U.S. 484 .............................................  12
General Electric Co. v. Gilbert, 429 U.S. 127 (1976) ........

..................................................................... 4,6,11,12,16,23,24,52

Henderson v. Oregon, 405 F.Supp. 1271 (D.Ore. 1975) ....1 3 ,1 4  
Hodgson v. Brookhaven General Hospital, 436 F.2d 719

(1970)   52
Hughes v. Alexander Scrap Corp., 426 U.S. 794 (1976) . . .  18

Inland Steel Co. v. National Labor Relations Board, 170 
F.2d 247 (7th Cir. 1948), cert, denied, 336 U.S. 960 
(1949)   52

Katzenbaeh v. Morgan, 384 U.S. 641 (1966) ........... ....1 6 ,1 7 ,1 8

Manning v. International Union, 466 F.2d 816 (6th Cir. 
1972), cert, denied, 410 U.S. 442 (1973) .........................  22

Nashville Gas Co. v. Satty, .....  U.S.........  (December 6,
1977)  12,24

Oregon v. Mitchell, 400 U.S. 112 (1970) .............................. 17,18

Peters v. Missouri-Pacific Railroad Co., 483 F.2d 490 (5th 
Cir.), cert, denied, 414 U.S. 1002 (1973) 52



IV Table of Attthobities Cited

Pages
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) . . .  10

Reilly v. Robertson, 360 N.E.2d 171 (Ind.Sup.Ct. 1977) ...13,35 
Rosen v. Public Service Electric & Eas Co., 477 F.2d 90 

(3rd Cir. 1973) ......................................................................  52

Shultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970) 49
Stanton v. Stanton, 421 U.S. 7 (1975) ..................... 21,22,31,32

Teamsters v. United States, 431 U.S. 324 (1977) ..........10,11,32

United Airlines, Inc. v. McMann, .. . U.S........ , 46 U.S.L.W.
4043 (1977) .............................................................................40,41

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) ................. 30,31

Constitutions
United States Constitution:

Fourteenth Amendment ..............................................15,16,18
Fourteenth Amendment, See. 1 ........................................ 17
Fourteenth Amendment, Sec. 5 ........................................ 16,17
Fifteenth Amendment ....................................................... 17

Rules
Supreme Court Rules, Rule 42 ................................................. 2

Regulations
29 C.F.R.:

Section 531.35 ....................................................................  49
Section 531.40 ....................................................................  49
Section 1604.9 .................................................................... 52, 53
Section 800.110 ................................................................... 51,52
Section 800.113 ............................................................ 51,52,53
Section 800.116 (d) ...................................................... 51, 52, 53
Section 800.142 .................................................................. 53, 56
Sections 800.145-800.150 .................................................... 56
Section 800.151 ..................................................................53, 60

674



Table of Authorities Cited v

Statutes Pages
Civil Eights Act of 1964, Title Y II ....................................... passim

Section 703 ..........................................................................  10
Section 703(a) ..................................................................... 15,40
Section 703(a)(1) ............................................................... 41,52
Section 703(a)(2) ............................................................... 41
Section 703(e) ..................................................................... 11,15
Section 703(h) .............................  15,62

29 U.S.C.:
Section 203 (m) ..................................................................  49
Section 206 .......................................................................... 48, 52
Section 206(d) .........................................................15, 45, 54, 61
Sections 620 et seq...............................................................   40
Section 623(a)(1) ..............................................................  40
Section 623(a)(2) ..............................................................  40
Section 623(f)(2) ..............................................................  40

42 U.S.C.:
Section 2000e-2(a) (1) .......................................................  40
Section 2000e-2(a) (2) .......................................................  40
Section 2000ei-2(e) ...............................................................11,15
Section 2000e-2(h) ..............................................................  45

Equal Pay Act, 77 Stat. 56, “Declaration of Purpose,” Sec­
tion 2(a) (1) .............................................................. ............  49

Fair Labor Standards Act of 1938, 52 Stat. 1960, “Declara­
tion of Policy,” Section 2(a) ...............................................  49

Other Authorities
Cox, Foreword: Constitutional Adjudication and the Promo­

tion of Human Eights, 80 Harv.L.Eev., 91, 107 (1966) . .  17
Employment Discrimination a.nd Title V II of the Civil 

Eights Act of 1964, 84 Harv. L. Eev., 1109, 1174 (1971) 31
Fellers, “Pension Costs and Cost Experience,” in Bureau of 

National Affairs, Pensions and Profit Sharing, 151 (3rd 
ed. 1964) .................................................................................. 28

Metropolitan Life Insurance Co., Statistical Bulletin, 10-11 
(May, 1977) ............................................................................27,37

Rethorford, The Changing Sex Differential in Mortality,
104 (1975) .............................................................................. 27



VI Table of Atjthobities Cited

Pages
U.S. Dept, of H.E.W , National Center for Health Statistics,

Vital Statistics1 of the United States (December 14, 1977) 27
U.S. Equal Employment Opportunity Commission, Legisla­

tive History of Titles V II and X I of the Civil Eights 
Act of 1964, 3174 (1968) ......................................................  40

Congressional Documents
109 Cong. Eec. 8916 (1963) ....................................................  50
109 Cong. Eec. 9206-9208 ........................................................  60
110 Cong. Eec. 13663-64 (1964) .............................................  61
113 Cong. Eec. 31255 (1967) ................................................... 41
H. Eep. No. 309 ..........................................................................  60
H. Eep, No. 309, 88th Cong., 1st Sess., 2 (1963) .................  47
H. Eep. No. 309, 3 ....................................................................  56
H. Eep. No. 309, 8 ....................................................................  47
Hearings of S. 830 before the Subcommittee on Labor of 

the Senate Committee on Labor and Public "Welfare,
90th Cong., 1st Sess., 53 (1967) ......................................... 40

H. Eep. No. 91-1434, 91st Cong., 2nd Sess. (1970) ............ 44
H.E. Eep. No. 92-238, 92nd Cong., 1st Sess, 2 (1971) ..........  41
H.E. Eep. 92-238, 92nd Cong, 1st Sess, 5 (1971) ................. 16,18
H.E. 17555 ..................................................................................  41
Esch Amendment to H.E. 17555, 91st Cong, 2d Sess. . .41,42,44
Letter and Analysis by Martha W. Griffiths concerning 

the Esch Amendment to H.E. 17555, 91st Cong, 2d 
Sess, in Congressional Information Service, Discrimina­
tion. Against Women, 380-382 (Bowker, E d , 1973) ........ 44

Senate Bill, 109 Cong. Eec. 8914 ............................................. 47
S. 2453 ..................................................................................  41
S. Eep. No. 176, 88th Cong, 1st Sess, 3 (1963) . 47
S. Eep. No. 176, 88th Cong, 1st Sess, 4 (1963) .50,59
S. Eep. No. 92-415, 92nd Cong, 1st Sess, 7-8 (1971) .........16,18



3tt %  S’uprinnf (Eiutrt
OF THE

United States

O c t o b e r  T e r m , 1977

No. 76-1810

C i t y  o p  L o s  A n g e l e s , D e p a r t m e n t  o f  
W a t e r  and P o w e r , e t  a l . ,  

Petitioners,

v s .

M a r i e  M a n h a r t , e t  a l . ,  
Respondents.

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

BRIEF FOR THE INTERNATIONAL UNION, UNITED AUTOMOBILE, 
AEROSPACE AND AGRICULTURAL IMPLEMENT 

WORKERS OF AMERICA (UAW) 
and

AMERICAN FEDERATION OF LABOR AND 
CONGRESS OF INDUSTRIAL ORGANIZATIONS 

AS AMICI CURIAE

This brief amici curiae is filed in support of the 
position of the respondents by the International

677



2

Union, United Automobile, Aerospace and Agricul­
tu ral Implement W orkers of America (U AW ) and 
by the American Federation of Labor and Congress 
of Industrial Organizations (A FL-CIO ) with the con­
sent of the parties as provided for in Rule 42 of the 
Rules of this Court.

INTERESTS OF AMICI CURIAE

The UAW  is this country’s largest industrial labor 
union with approximately 1,300,000 members in the 
United States, over 210,000 of whom are working 
women. Among the U A W ’s principal objectives is 
the protection of the welfare and security of its 
members afte r retirement. The UAW  has histori­
cally placed heavy emphasis on the establishment 
of pension plans in negotiating collective bargaining 
agreements. I ts  staff includes four professional actu­
aries who help formulate UAW  plans and monitor 
similar plans in other industries. The UAW  has 
negotiated approximately 1,500 pension plans cover­
ing almost all of its American workers.

The AFL-CIO is a federation of 109 national and 
international unions, having a total membership of 
approximately 14,000,000 workers, a substantial por­
tion of whom are women. As such, it is the principal 
spokesman for the American trade union movement. 
V irtually all AFL-CIO affiliates negotiate pension 
plans for their members in the course of collective 
bargaining, and many affiliates play a role in the 
administration of such plans.

678



Contrary to the implication in several of the briefs 
amici curiae filed in  support of petitioners, most 
single-employer defined-benefit pension plans in Amer­
ican industry today are “sex-neutral” plans tha t do 
not charge women a greater contribution and do not 
pay women lower benefits a t retirement. Almost all 
the UAW ’s 1,500 existing plans are “sex-neutral” in 
this respect, as are the great m ajority of defined- 
benefit plans negotiated by AFL-CIO affiliates.

As the experience of the UAW  and AFL-CIO 
affiliates proves, pension plans need not be sex-dis­
criminatory to be actuarially sound. Indeed, sex- 
discriminatory pension plans are the exception rather 
than the rule, historically being confined to educa­
tional and governmental institutions, and they have 
been decreasing in usage in recent years.

In  this brief, we seek to dispel the impression that 
sex-discriminatory pension plans are a. practical neces­
sity, and tha t the overt sex discrimination apparent 
from the face of these plans is compatible with the 
provisions of Title V II  of the 1964 Civil Eights Act, 
As a corollary, we will show that the “sex-neutral” 
plans negotiated by the trade union movement 
throughout American industry are not unfair to men.

Petitioners have also raised fundamental questions 
about the test to be applied in determining whether 
a given employment practice that discriminates 
against women violates Title V II. As representatives 
of millions of working women, and as leaders in the 
effort to eliminate sex discrimination in  employment, 
the UAW  and AFL-CIO have a vital interest in



4

assuring tha t the standards for determining sex dis­
crimination under Title Y II  are not weakened.

SUMMARY OF ARGUMENT

I. Conceptually, this is a very simple case. Since 
all women employed by the City of Los Angeles 
D epartm ent of W ater and Power take home less pay 
than men in the same job but receive no more in 
periodic pension benefits when they retire, there is 
plainly disparate treatm ent based directly upon 
gender. Such treatm ent is at the core of the evils 
Title Y II  was intended to prevent, and this Court 
has never doubted that any employment practice that 
explicitly and overtly treats women differently from 
men violates Title Y II  unless there is an affirmative 
defense applicable. Only where an employment prac­
tice is based upon facially neutral principles is it 
necessary to inquire into its effect upon women as a 
group in order to determine whether there is a Title
Y II  violation. Dothard v. B aw lin so n .....  U.S........ ,
45 IT.S.L.W. 4888 (1977); General Electric Go. v. 
Gilbert, 429 U.S. 127 (1976).

The discriminatory policy cannot be justified by the 
fact that it is based upon a statistically significant 
correlation between a prohibited classification—gender 
—and a neutral factor—longevity. Title Y II  does not 
perm it individuals in protected classifications to be 
treated according to group characteristics. Here, in 
fact, since over eighty percent of men and women die 
at the same age, such treatm ent harms 80% of the

680



5

women because 20% of the women live longer lives, 
and benefits 80% of the men because 20% of the 
men live shorter lives.. A plainer example of the sort 
of harm  which Title Y II  was intended to prevent is 
hard to imagine.

I t  is not necessary to declare the D epartm ent’s 
discriminatory policy “ irrational” in order to find a 
Title Y II  violation. The same standard of scrutiny 
applies under Title Y II  to race and to sex discrimina­
tory policies, except tha t there are two affirmative 
defenses to sex discrimination not available with 
respect to race discrimination. Therefore, the D epart­
ment’s policy violates Title Y II  unless the only per­
tinent defense, the Bennett Amendment, provides an 
exemption.

I I .  Before discussing the Bennett Amendment 
issue, however, we discuss the arguments tha t the 
ordinary Title Y II  principles are inherently anoma­
lous in the insurance context, and that Congress must 
therefore have intended an exception.

A. Petitioners urge tha t despite a clear difference 
in treatm ent between men and women, there is not 
any inequality here, because women will receive retire­
ment benefits for a  longer time and therefore can be 
fairly asked to contribute more toward those benefits. 
But, even though women as a group live to a higher 
average age, no individual woman has any assurance 
whatever that she will collect more in benefits than 
any individual man, or even than the average man. 
Thus, what the D epartm ent’s policy does is to dis­
tribute among women only, and not among employees

681



6

generally, the cost of paying retirem ent benefits to 
those comparatively few women who live longer than 
the average male. The fact tha t a discriminatory 
policy does not harm, or even favors certain members 
of a protected class does not save i t  where there is 
per se discrimination. Gilbert, supra, is not to the 
contrary; in Gilbert, only those women who incurred 
the excluded additional risk, and not all women, were 
affected by the policy excluding pregnancy from dis­
ability coverage.

B. W hile insurance is based on the pooling of risks 
among large groups of people, there is nothing in­
herent in insurance which mandates subdivision of an 
insured group along gender lines. To prohibit such 
subdivision for employee benefit programs is not ir- 
tional, economically naive, or fundamentally unfair 
to men.

F irst, there are many other subgroupings which 
would be available if  it were desired to classify em­
ployees by risk of longevity. The fact that these are 
not used indicates th a t . longevity subgroupings are 
not necessary.

Further, this Court’s sex discrimination cases “have 
. . . rejected the use of sex as a decision-making factor 
even though the [policies] in question . . . rested on 
. . . predictive empirical relationships.” Craig v. 
Boren, 429 TJ.S. 190, 202 (1977). Nor is insurance 
special in tha t it is not possible to determine which 
members of a group actually have the relevant char­
acteristic. This was true in Craig, and in other sex 
discrimination cases as well.

682



7

Second, there is no economically compelling reason 
for the. sex classification. While it may be necessary, 
where purchase of insurance is voluntary, to price 
either contributions or benefits' by degree of risk in 
order to avoid adverse selection, the adverse selection 
theory has no application where, as here, individuals 
have no choice whether to be covered by the pension 
plan or not.

Third, while, in a  sex-neutral benefit plan, men as 
a group can be said to “subsidize” women as a group, 
there is nothing unfair about this. M andatoiy group 
benefit programs rely, in fact, upon cross-subsidization 
of high risk persons by low risk persons for their 
strength—providing adequate and basically equal cov­
erage to people in many different life situations. Thus, 
the assertion that a sex-neutral plan unfairly discrimi­
nates against men really amounts to the contention 
that low risk men are somehow entitled to be sure 
that “their” money is used only for high risk men and 
not for high risk women. This contention is an ex­
ample of exactly the sort of rigid gender-based ap­
proach to employment relationships which Title Y II  
prohibits.

Finally, not only is there no reason inherent in in­
surance principles for supposing tha t Congress created 
an implied exception for gender-based differences in 
treatment under employee benefit plans, but there are 
express indications that no exception was intended. 
The first is that the Age Discrimination in Employ­
ment Act, otherwise quite similar to Title V II, con­
tains an express exemption for pension and retirement

683



8

plans. The legislative history shows that the reason 
for this exemption was the understanding that other­
wise, the equality principle would require that the 
same benefits be provided under employee benefit pro­
grams to workers older when hired. Second, in 1970, 
an attem pt was made to amend Title V II  itself to 
exclude employee benefit programs, but this attempt 
failed.

I I I .  The only statutory defense possibly applicable 
here is the Bennett Amendment, which provides that 
any wage differential based on sex “authorized” by 
the Equal P ay  Act does not violate Title V II. To be 
within the Bennett Amendment exemption, an employ­
ment practice must first be determined to be a wage 
differential, for the Equal P ay  Act is concerned only 
with wages. Because the Equal P ay  Act is p a rt of the 
minimum wage section of the F a ir  Labor Standards 
Act, the concepts used in the minimum wage context 
apply. And, pension programs are not “wages” for 
purposes of the minimum wage provisions. Thus, the 
discrimination here is not within the purview of the 
Equal P ay  Act a t all and could not possibly be “au­
thorized” by tha t Act.

Moreover, even if this were considered a case of 
discrimination in  wage rates, the Equal P ay  Act would 
not perm it the differential. For, that Act prohibits 
such a differential unless justified by a seniority, 
merit, or productivity system, o r by “any other factor 
other than sex.” The language, structure, and legisla­
tive history of the Act all lead to the conclusion that 
“any factor other than sex” must be a facially neutral

684



9

factor and. not one itself based upon gender. While 
petitioners contend tha t the legislative history demon­
strates a specific intention, nonetheless, to perm it 
gender-based distinctions in employee benefit plans, 
the material contemporaneous with the passage of the 
Equal P ay  Act contains no such permission.

Since this is a clear case of gender-based discrimi­
nation, and since there is no applicable statutory de­
fense, the judgment below should be affirmed.

ARGUMENT

I
THE POLICY REQUIRING ALL WOMEN TO CONTRIBUTE MORE 

TOWARD PENSION BENEFITS THAN ALL MEN IS A PER SE 
VIOLATION OF TITLE VIE UNLESS THERE IS A STATU­
TORY AFFIRMATIVE DEFENSE

The length and complexity of the briefs of petition­
ers, and of amici supporting their position, belie the 
fact that conceptually, this is a rather simple case. 
All women who work for the City of Los Angeles 
Department of W ater and Power (hereafter “the 
D epartm ent”) take home in each pay check less than 
men holding the same job. The difference in take- 
home pay between men and women is explained as a 
higher periodic contribution by women toward the 
pensions they will receive when they retire. But, 
upon retirement, women receive no more than men in 
periodic benefits. The result is that all women have 
less money to live on each month while they are work­
ing, and no more to live on each month when they 
retire.

685



10

A clearer case of gender-based discrimination pro­
hibited by Section 703 of Title V II  is hard to con­
ceive. All women are treated differently than all men. 
And,

“disparate treatm ent [based on race, color, re­
ligion, sex, or national origin] was the most ob­
vious evil Congress had in mind when it enacted 
Title V II. See, e.g., 110 Cong. Ree. 13088 (1964) 
(rem arks of Senator H um phrey) (‘[the bill] . . . 
provides that men and women shall be employed 
on the basis of their qualifications, not as . . . 
[women] citizens, but as citizens of the United
States.’) ”

Teamsters v. United States, 431 U.S. 324, 335 
n.15 (1977).

This Court has never doubted that any employment 
practice that explicitly and overtly treats women dif­
ferently than men violates Section 703 of Title VII, 
unless an affirmative defense is available. For ex­
ample, in Phillips v. Martin Marietta C o r p 400 U.S. 
542 (1971), the Court was faced with a policy forbid­
ding the hiring of women, but not men, with pre­
school age children. The court of appeals had ruled 
that there was no sex discrimination because most of 
the employees who were hired were women, and 
women as a group were therefore not harmed. In  its 
first decision construing Title V I I ’s prohibition of sex 
discrimination, the Court reversed in a brief per cur­
iam opinion. Regardless of the effect upon women as 
a group, the Court declared, employers may not ordi­
narily “have one policy for men and one for women 
each having pre-school age children.” Id., a t 544.

686



11

While it may be, said the Court, tha t “the exis­
tence of . . . conflicting family obligations is demon­
strably more relevant to job performance for a woman 
than for a man,” this justification was not relevant to 
whether there was discrimination, although it “could 
arguably” constitute an affirmative defense under 
Section 703(e) of the Act. Id .1

In  Dothard v. Rawlinson, .......  U .S............ , 45
U.S.L.W. 4888 (1977), the Court dealt with two dif­
ferent policies alleged to discriminate on the basis of 
sex: a height and weight limitation asserted to dis­
qualify many women, without justification, and an 
exclusion of all women from certain positions. Iin 
considering the first policy, the Court, applying the 
standards for disparate im pact cases (see Teamsters, 
supra, 431 U.S., at 335 n.15), analyzed first the effect 
of the height and weight limits on women and then 
whether the facially neutral policy, despite its dispar­
ate impact, was justified because necessary to the em­
ployment in qtiestion. B ut in considering the second 
policy which, like the policy in the present case, drew 
an explicit gender-based line, the Court did not in­
quire into either impact or necessity; instead, it 
asked only whether an explicit statutory defense was 
applicable, and concluded that it was.

Similarly, in General Electric Co. v. Gilbert, 429 
U.S. 127 (1976), the Court, faced with an employment

Section 703(e), 42 U.S.C. § 2000e-2(e), permits gender-based 
discrimination where gender is a “bona fide occupation qualifica­
tion [“bfoq”] reasonably necessary to the normal operation of 
that particular business or enterprise.”

687



1 2

policy denying disability benefits for pregnancy but 
otherwise treating men and women alike, first inquired 
into whether tha t policy was “sex-based discrimination 
as such.” 429 U.S., at 135. I t  concluded tha t it was 
not, because “ [t]he program divides potential recipi­
ents into two groups—pregnant women and non-preg­
nant persons.” Id., quoting Geduldig v. Aiello, 417 
U.S. 484, 496-97 n.10. Only after determining that 
discrimination based on pregnancy is not overt sex 
discrimination did the Court proceed to discuss the 
effect of the policy upon women, concluding that 
exelusion of pregnancy did not “discriminate against 
any definable group or class in terms of . . . aggregate 
risk protection.” Id., at 138; see also Nashville Gas Co. 
v. S a t ty , ....... U .S............ (December 6, 1977).2

Petitioners, however, maintain tha t the present case 
'differs from  other per se sex discrimination cases 
because the differential treatm ent is based on an ob­
jectively verifiable fa c t: tha t the average age at death 
is higher for women as a group than for men as a 
group. This, they contend, demonstrates tha t the dif­
ference in treatm ent is based on longevity rather than 
gender. Alternatively, they claim that the statistical 
correlation between gender and longevity shows that 
their differential treatment of men and women along 
explicit gender lines is rational, and tha t this showing 
is all that Title Y II  requires.

2Satty stressed twice that the analysis in Gilbert regarding 
“aggregate risk protection” applied only “when confronted by a 
facially neutral plan.” Satty, slip op., at 8.

688



1 3

The notion that when a statistical correlation exists 
between some legitimate factor and a statutorily pro­
hibited categoiy such as gender, race, national origin, 
or religion, different treatm ent of all members of the 
group is not discrimination under Title Y II  is quite 
astonishing. F o r the most fundamental principle of 
Title V II  is tha t persons should be treated as indi­
viduals rather than as members of groups drawn 
along prohibited lines. F or example, “ [ i] t  is imper­
missible under Title V II  to refuse to hire an indi­
vidual woman or man on the basis of stereotyped
characterizations of the sexes.” Dothard, supra, .......
U.S., a t ....... ; 45 U.S.L.W., a t 4891. And this pro­
hibition applies whether the “stereotype” is a subjec­
tive perception or a verifiable fact about the group 
in the aggregate; either way, the individual is being 
treated in a certain wTay because of membership in a 
certain group, although he or she may not share the 
characteristics that other members of the group are 
thought to, or do, exhibit.

In  the present case, the harm ful effect of being 
treated on the basis of group averages is felt not by a 
handful of women, but by most of them. Analysis 
feveals that the difference in average longevity be­
tween men and women results from the fact that 
about 16% of men die quite young, while about 16% 
of women live to be quite old; the remaining men and 
women—more than 80% of each group—share com­
mon death ages. Reilly v. Robertson, 360 Y.E.2d 171, 
176 (Ind.Sup.Ct. 1977); Henderson v. Oregon, 405

689



14

F.Supp. 1271, 1275 n.5 (D.Ore. 1975).3 This fact 
means that more than 80% of the women are penal­
ized because less than 20% of women live longer lives, 
and conversely, more than 80% of the men benefit 
because less than 20% of men live shorter lives. A

Petitioners, and amici appearing in their support, accept these 
figures as accurate but question their significance. They point 
out that if men and women of the same age at retirement are 
matched not by year of death but by order of death, it will 
turn out that the male in each pair will be much younger than 
the female in each pair. But, this is just another way of say­
ing that the difference in the average in this instance is ac­
counted for by large differences at the extremes rather than 
persistent differences affecting all or most men and. women.

For example, the following chart shows two groups of ten 
numbers, which have a difference in averages of 1.6:

Eighty percent of the numbers in each group are the same; the 
difference in averages results because two numbers in the first 
group are quite high and two numbers in the second group are 
quite low. If  one matched these numbers in order, however, the 
one on the left would always be higher than the corresponding 
number on the right.

In the present context, the relevant consideration is age at 
death, not order of death. Retirement benefits are paid for the 
number of years one lives after retirement, so that a person's 
age at death is a measure of the total amount of money the fund 
will pay to that person. The order in which people die does not 
affect the amount of money each beneficiary receives, in total, 
from the fund.

10
10
9
9
7
6
6
5
5
4
4

9
9
7
6
6
5
5
4
4
2
2

Average 7.5 5.9

690



15

plainer example of the sort of harm  which Title 
Y II was intended to prevent is hard to imagine.

The second contention—that the D epartm ent’s overt- 
discrimination does not violate Title Y II  because it 
has a rational basis—is based on the suggestion that 
Congress intended, or, because of constitutional con­
siderations, must be assumed to have intended, a lesser 
standard of scrutiny under Title V II  for sex than for 
race.4

This Court has never recognized any such distinc­
tion under Title Y II. Title Y II  does differentiate be­
tween race and sex classifications in that it provides 
two special statutory defenses to sex discrimination: 
Section 703(e), the “bfoq” distinction; and the last 
sentence of Section 703(h), the “Bennett Amend­
ment,” which permits sex discrimination otherwise vi­
olative of Title V II  if “authorized” by the Equal Pay  
Act, 29 U.S.C. § 206(d). B ut the affirmative prohibi­
tions in Title V II, contained in Section 703(a), treat 
race and sex in a precisely parallel manner, and 
therefore the two express defenses must be taken as 
the only differences between race and sex discrimina­
tion for Title V II  purposes.

The fact tha t race and sex classifications are han­
dled differently under the Equal Protection Clause 
of the Fourteenth Amendment5 leads to “no necessary

‘Petitioners do not suggest that a rational purpose suffices to 
justify race classifications under Title YII.

5Even if relevant, this1 consideration would not lead to the con­
clusion that a rational basis is sufficient. Under the Fourteenth 
Amendment, justification of sex discrimination requires more than 
simple rationality. Craig v. Boren, 429 U.S. 190 (1976). Applica­
tion of the Craig test would in our view result in invalidating the 
Department’s plan. Cf. pp. 29-32, infra.

691



16

inference that Congress. . . . intended to incorporate 
into Title Y II  the concepts of discrimination which 
have evolved [under] the Equal Protection Clause.” 
Gilbert, supra, 429 U.S., at 133.6 Not only is the 
structural parallel between race and sex • discrimina­
tion in Title V II  clear, but in. 1972, when Congress 
enacted the coverage of public employees which cre­
ated the cause of action here, it expressly disavowed 
any intention to subject sex discrimination to a lesser 
standard of scrutiny:

“ [W ]omen’s rights are not judicial divertisse­
ments. Discrimination against women is not less 
serious than other forms of prohibited employ­
ment practices and is to be accorded the same 
degree of social concern given to any type of 
unlawful discrimination.”

H.R. Rep. 92-238, 92nd Cong., 1st Sess., at 5 
(1971) ; see also id., a t 4-5; S.Rep. No. 92-415, 
92nd Cong., 1st Sess. a t 7-8 (1971).

Finally, the suggestion tha t Congress was constrained, 
with respect to public employees,7 to incorporate into 
Title V II  the Fourteenth Amendment difference in the 
scrutiny accorded race and sex discrimination en­
tirely misconceives the power of Congress under Sec­
tion 5 of the Fourteenth Amendment. Katsenbach v.

6While Gilbert, supra, did indicate that Fourteenth Amendment 
analysis can be relevant in determining whether there is discrimi­
nation at all under Title VII (429 U.S. at 133-35), here the issue 
is not whether there is discrimination based on gender, but the 
standard of scrutiny once such discrimination is established.

7 Although petitioners do not acknowledge as much, this argu­
ment, if accepted, would lead to different standards for gender- 
based discrimination under Title VII for public and private em­
ployees. For, as to private employees, Congress could clearly legis­
late whatever standard it chose under the Commerce Clause.

692



17

Morgan, 384 U.S. 641 (1966); Fitzpatrick v. Bitzer, 
427 U.S. 445 (1976).8

In  sum, overt gender-based, discrimination does vio­
late Title V II  unless one of the two statutory de­
fenses apply. No one has suggested that the “bfoq” 
defense is pertinent. W e would therefore ordinarily 
proceed to a discussion of the only defense possibly

sTitle V II’s coverage of public employees was an exercise of Con­
gressional power under Section 5 of the Fourteenth Amendment 
to pass statutes promoting the purposes of that amendment. Fitz­
patrick v. Bitzer, 427 U.S. 445 (1976). Legislation passed pur­
suant to Section 5 is valid if that legislation “may be viewed” as 
a means of securing equal treatment and the courts can “perceive 
a basis upon which Congress might predicate [its] judgment.” 
Katzenbach v. Morgan, 384 U.S. 641, 652, 656 (1966) (emphasis 
added).

Morgan established 1) that § 5 of the Fourteenth Amendment 
authorizes Congress “to exercise its discretion in determining 
whether and what legislation is needed to secure the guarantees 
of the Fourteenth Amendment,” {Id., at 651); 2) that in exercis­
ing this discretion under § 5, Congress is not limited to the regu­
lation of conduct which a court might find to be violative of § 1 
of the Fourteenth Amendment {Id., at 652-53) and 3) that the 
courts should defer to congressional judgment of “whether and 
what legislation is needed to secure the guarantees of the Four­
teenth Amendment,” as long as the legislation “may be viewed” 
as a means of securing equal treatment and the courts can “per­
ceive a basis upon which Congress might predicate [its] judg­
ment.” Id. at 652, 656. Under Morgan, Congress, in regulating 
state activities,

“has the power to enact any law which may be viewed as a 
measure for correction of any condition which Congress might 
believe involves a denial of equality or other fourteenth 
amendment rights.”

Cox, Foreword: Constitutional Adjudication and the Pro­
motion of Human Rights, 80 H abv.L.Rev. 91, 107 (1966) 
(emphasis added).

While there were two dissenting Justices (Harlan, J. and Stew­
art, J.) in Morgan, both, in the subsequent case of Oregon v. 
Mitchell, 400 U.S. 112 (1970), accepted the crucial holding of 
Morgan, i.e., that Congress under § 5 can regulate conduct which 
arguably does not violate § 1 of the Fourteenth Amendment. For 
example, in discussing the Fifteenth Amendment, Justice Harlan 
indicated the “danger of violation of § 1 . . . was sufficient to au­
thorize the exercise of congressional power under § 2.” 400 U.S.

693



1 8

applicable, the Bennett Amendment. However, peti­
tioners and, especially, the amici supporting their po­
sition, seem to be suggesting that, because this case 
involves insurance, established Title V II  principles 
cannot apply. We therefore devote P a r t  I I  of this 
brief to demonstrating that there is nothing in in­
surance or actuarial principles tha t renders the ordi­
nary Title V II  analysis inapplicable, and defer dis­
cussion of the Bennett Amendment to P a r t  I I I .

I I
CONGRESS INTENDED ORDINARY TITLE V II PRINCIPLES TO 

APPLY TO EMPLOYEE BENEFIT PROGRAMS

While petitioners, as noted, argue for a sweeping 
alteration of the established Title V II  analysis of sex 
discrimination, the several amici appearing on their 
behalf do not dispute the established principles we 
have discussed above. Rather, they appear to argue 
that those principles are inherently inapplicable to

a,t 216. Justice Stewart recognized that Morgan upheld the power 
of Congress to

“. . . override state laws on the ground that they were in fact 
used as instruments of invidious discrimination even though a 
court in an individual lawsuit might not have reached that 
factual conclusion.”

Id., at 296 (emphasis added).
Most recently Morgan was cited by Justice Powell in Hughes v. 
Alexander Scrap Corp., 426 D.S. 794, 813 (1976), as authority 
for deferring to legislative judgments.

In enacting the public employee coverage of Title VII in 1972, 
Congress explained precisely why it believed that gender-based 
discrimination in employment requires basically the same level of 
scrutiny as race discrimination. H.R.Rep, No. 92-238, supra, at 
4-5; S. Rep. No. 92-415, supra, at 7-8. This decision, which surely 
furthers the right to equal treatment accorded by the Fourteenth 
Amendment, was a reasonable exercise of discretion and is there­
fore entitled to deference.

694



19

cases involving insurance, and that Congress there­
fore must have intended a special approach in such 
cases.

This contention takes two related forms: first, the 
assertion that despite diverse treatm ent based squarely 
and overtly on gender lines, women and men are in 
fact being treated “equally” by the Departm ent; and 
second, the argument that even if  inequality exists, 
ordinary principles cannot apply to invalidate that 
inequality because there is no rational alternative 
to sex classifications in the insurance context.

A.
The department's pension plan does not treat sim ilarly situated  

women and men equally

Petitioners’ argument, that there is no inequality 
in this case cognizable under Title V II  is perhaps 
most simply stated in their “loaf of bread” analogy: 

“The [system] may be analogized to [a loaf] of 
bread accrued a t the date of retirement . . . 
[U ]nder the D epartm ent’s Plan, women are to 
receive the same size ‘slice’ of bread each month 
afte r retirem ent but because they live longer they 
must have a longer loaf in order to pay all the 
‘slices.’ ”

Pet. Br., 4.

While amici use insurance terminology such as “actu­
arial equality” and “present value,” their analysis 
is basically the same.

The problem, of course, is that while women as a 
group live longer on the average than men as a group, 
no individual woman is assured that she will collect

6 9 5



2 0

any of the “loaf of bread” set aside for her, much 
less all of it. Indeed, since more than 80% of the 
women do not live longer than their male counter­
parts, most women who work for the Department are 
plainly harmed by the policy: they receive less in ex­
pendable wages than men, but receive no more in 
total income in return.

Further, for some women, as for some men, present 
income will be worth more than future income because 
of their particular circumstances, even if  they do 
live to a ripe old age; they may have a pressing need 
for the money now, but have other means of assuring 
la ter income. F o r these women, and for women who 
have a good reason to expect tha t they will die early 
—those with a progressive disease, a family history 
of early deaths, or a smoking or drinking habit, for 
example—this difference is a difference in present 
value as well as in ultimate outcome. Such women, 
like similarly situated men, would, given the choice, 
be likely to choose a higher present income.

W hat the Departm ent’s program really does is to 
distribute among women only, and not among em­
ployees generally, the cost of paying retirement bene­
fits to those comparatively few women who live longer 
than the average male. This is doubly injurious to the 
woman whose life expectancy is equal to or shorter 
than tha t of the average person: not only is she denied 
the benefit of present income, but she m ust absorb a 
greater portion of the cost of subsidizing women who 
do live longer than if that cost were distributed among 
all employees. The harm occurs because each woman is

696



21

being treated as the average woman, even if  she de­
parts in her life expectancy or in  her economic prior­
ities from the average. The fact that a relatively few 
women may not be injured imder the scheme does not 
make the harm  to those who are adversely affected 
any less real.

Thus, this is not a situation, as petitioners and their 
supporters seem to suggest, in which plain gender- 
based differences in treatm ent cause no injury. And, 
when such differences do harm individuals, the fact 
that other individuals placed in the same classifica­
tion are not h u rt is not relevant to a finding that the 
discrimination is unlawful.

For example, in Stanton v. Stanton, 421 U.S. 7 
(1975), this Court considered the validity of a state 
law establishing different ages of majority for men 
and women. In  the particular case, the woman de­
clared an adult a t 18 had suffered discernible harm ; 
she had lost the righ t to support payments from her 
father. B ut the same statute was of benefit to women 
in other situations. F o r example, achieving the age 
of m ajority conveyed the rights to enter into binding 
contracts and to sue in one’s own name (421 U.S., 
at 17) ; men who did not have these rights until age 21 
could find themselves unable to obtain commercial 
credit for purchases, or could lose legal rights due 
them because of the inability to procure legal enforce­
ment. The double-edged character of this gender-based 
rule may have influenced the ultimate remedy in the 
case, in tha t it made it difficult to determine what rule 
Utah would have chosen had it selected a uniform

697



m ajority age. See id., at 17. B ut the fact tha t injury 
did not occur to all women, or solely to women—or, 
indeed, tha t the rule was as likely to benefit as to harm 
the “average” woman—certainly did not lead to the 
conclusion tha t no cognizable inequity existed. Rather, 
this Court, applying a more relaxed standard of re­
view than that applicable here (see P a r t  I, supra), 
concluded that “no valid distinction between male and 
female may be drawn.” Id., at 17.

Cases dealing with state statutes or regulations de­
signed to protect women, from oppressive employment 
conditions have raised similar issues under Title V II. 
In  some cases, women have asserted that protective 
law’s violate Title V II  because their application lim­
its  employment opportunities for women. E.g., Man­
ning v. International Union, 466 F.2d 816 (6th Cir. 
1972), cert, denied, 410 U.S. 442 (1973) ; Bowe v. Col­
gate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969). 
In  other cases, however, men have protested that the 
statutes grant women more favorable employment con­
ditions. E.g., Burns v. Bohr Corp., 346 F.Supp. 994 
(S.D.Cal. 1977). And, while courts deciding these 
cases have often noted tha t a t least some of the 
protective laws were based upon statistically valid 
assumptions about differences between women and 
men (e.g., Bowe, supra,, 416 F.2d at 716-18), the courts 
of appeals have uniformly declared the statutes vio­
lative of the equality requirement of Title V II. For, 
establishing a violation of Title V II  does not require 
a showing that a given rule is inequitable or injurious 
to an entire group, or even to a majority of the group.



A rule is invalid if it operates on the basis of a for­
bidden classification and harms some members of the 
group, even if  it is fa ir or beneficial to others.9

I t  is argued tha t Gilbert approved of the “actuarial 
equality” approach to Title V II  in the insurance con­
text. As noted, however, the Gilbert case concerned 
a policy tha t was neutral on its face, ra ther than 
one expressly drawn along- gender lines. Only women 
who incurred the excluded additional risk of preg­
nancy actually received less than complete disability 
coverage; all other women received the same benefits 
as men at no extra, cost.

In  the present case, in contrast, the D epartm ent’s 
policy penalizes all women because of the risk pre­
sented by a few. Thus, Gilbert would be parallel to 
the present case only if  the General Electric Com­
pany had covered pregnancy, but had provided all 
women with benefits at a lower level than men because 
of the extra risk of disability then presented by 
women as a group. In  that event, it seems to us, 
the “actuarial equality” on a group basis could not 
obscure the fact that, among non-pregnant persons, 
only women, and not men, would be paying the dis­
ability costs of pregnant women.

9 We cannot conceive of a situation in which a plainly gender- 
based difference in treatment does not adversely affect some in­
dividual. For example, if  the women here had received propor­
tionately higher periodic benefits for their extra contributions, it 
might appear that there was a difference but no injury. But, to 
those women who did not want better retirement plans than men 
received because they preferred present income, and to those men 
who wanted the opportunity to have a higher retirement benefit 
even at a higher present cost, there would be harm.



24

Gilbert, therefore, did not involve the kind of evil 
with which Congress was most concerned when it pro­
hibited employment discrimination: tha t persons in 
certain groups not be penalized for being members 
of tha t group. The discussion in Gilbert of actuarial 
equality was premised on the conclusion that no overt 
discrimination existed, and that the harm of being 
treated as an “average” woman rather than as one­
self had consequently not occurred.10

B.
The group nature of insurance requires no special Title VII 

standard
The response of petitioners and amici appearing 

on their behalf to this analysis seems to be that 
insurance differs from all other situations in that 
insurance nuist operate on the basis of group aver­
ages, and that Congress therefore could not have

“ Further, the Court in S a t ty  explained that even as to the dis­
parate impact analysis, the holding in G ilbert “did not depend on 
. . . evidence that the present actuarial value of the coverage was 
equal as between men and women.” S a t ty ,  supra , slip op., at 7. 
Rather, the basis for the G ilbert decision was that “pregnancy- 
related disabilities constitute an a d d itio n a l risk, unique to women, 
and the failure to compensate them for this risk, does not destroy 
the presumed parity of benefits . . . which results from the facially 
evenhanded inclusion  of risks.” 429 U.S. at 139.

The present case concerns no “additional risk unique to women.” 
While there may be a difference in degree, men and women face 
the same risk—that they will live longer after retirement than the 
number of years of living expenses they could finance through 
savings. Thus, even if  there is actuarial equality, the Department 
does not provide equal “aggregate r isk  protection” or “parity of 
benefits” (G ilb ert, supra , 429 U.S. at 138-39; see also S a tty , supra, 
slip op., at 7-8), since male employees can save the extra contribu­
tion amount and face old age in a better financial position than 
female employees.

700



25

intended to proscribe fringe benefit programs that 
treat men and women differently in situations in 
which pertinent statistically significant differences 
exist between men and women.11

But this is a nonsequitur; it does not follow from 
the indisputable fact that insurance must take into 
account large group norms tha t there is any “anom­
aly [in] attempting to apply traditional Title Y II  
tests to insurance coverage offered employees as fringe 
benefits.” Life Ins. Council Br., a t 12. For, while 
“the fundamental principles of insurance are directed 
toward shifting economic risks of loss from an indi­
vidual to a group” (id., at 14), the issue here is not 
whether group averages may be used to distribute 
economic risks, but whether, because women live 
longer on the average than men, the total group may 
be subdivided so that a greater portion of the pooled 
risk is borne by women, in  the form of higher contri­
butions to the fund.

Practical experience alone demonstrates, despite 
petitioners’ pronouncements to the contrary, that the 
operation of group pension plans does not inherently 
require individual members of any sub-group that 
presents a statistically significant higher risk to bear 
a proportionately higher share of the cost, either 
through higher contributions or through lower bene­
fits.

11 See, e.g., TIAA Br., at 26 (“ [T ]he continuing viab ility  of such 
plans requires application of principles of risk classification . . . 
[S]uch classification is essential to the financial stability of any 
insurance plan.”)

701



26

F or example, the UAW  has negotiated 1,500 pen­
sion plans covering almost 1.3 million employees. None 
of these plans differentiates on the basis of degree of 
risk of longevity in  either the benefits paid em­
ployees when they reach ordinary retirem ent age or 
in differential employee contributions.12

Nor are the UAW  plans unusual. Most of the pen­
sion plans negotiated by AFL-CIO affiliates are sim­
ilar.

Indeed, as amicus Society of Actuaries admits, 
“most defined benefit plans in effect today . . . ordi­
narily  provide for the payment of equal monthly pen­
sions as a single life annuity at retirement, without 
regard to the sex of the retiring  employees.” Actu­
aries’ Br., at 12. And, “defined benefit plans which 
provide for different contribution rates for male and 
female employees are exceedingly rare. . . .’’ Id., at 18.

As the widespread existence of basically sex-neutral 
plans would suggest, the contentions of petitioners 
and their supporters that a sex-neutral approach to 
pension plans is “irrational” (Life Ins. Council Br., 
at 18; A ctuaries’ Br. a t 23), economically impossible 
(L ife Ins. Council Br., a t 46; TIA A  Br., at 26-27; 
Actuaries’ Br., a t 9-10), and fundamentally unfair 
(Life Ins. Council Br., a t 14; TIAA Br., at 24; Actu­
aries’ Br., a t 10) are simply false.13

12The UAW  plans do contain basic benefit differentials based 
upon length of service and salary, but none based upon any in­
dividualized or sub-group assessment of longevity.

13It  may be true that it is the practice  of private insurance com­
panies to charge differential rates, or pay differential benefits, on 
the basis of sex. But the fact that something is done does not

702



27

1. Rationality: The first contention—that a sex- 
neutral plan is “irrational”—amounts to the claim 
that since the longer life expectancy of women as a 
group is statistically demonstrable, and since it is not 
possible to determine in  advance which particular 
women will live longer, the only sensible approach 
is to trea t women as a distinct sub-group for pension 
plan purposes. But, of course, there are many other 
simple ways in which one could divide a group of em­
ployees into sub-groups with statistically significant 
differences in life expectancy—for example, by smok­
ing habits,* 14 by race,15 by state of residency,16 or by age 
at onset of coverage.17 In  our experience, such differ-
show that it is necessary. And, as discussed below, there are some 
economic differences between group employee benefit programs and 
individual insurance sales by private companies which indicate 
that whatever economic justification there may be for sex differen­
tiation when purchase of insurance is voluntary does not apply 
when participation in  a pension plan is a mandatory condition of 
employment.

140ne study calculated that almost half the difference in life ex­
pectancy between men and women is actually attributable to the 
fact that men are much more likely to smoke. Rethorford, T he  
C hanging S e x  D iffe ren tia l in  M o r ta lity , 104 (1975).

15See Actuaries’ Br., at 11.
16The difference in life  expectancy between residents of the D is­

trict of Columbia and residents of Maryland is greater than the 
4.3 year national difference between men and women. See  U.S. 
Dept, of H.E.W ., National Center for Health Statistics, V ita l S ta ­
tistics o f the  U n ited  S ta te s  (December 14, 1977).

17Life expectancy in terms of age at death increases with age. 
See Metropolitan Life Ins. Co., S ta tis tic a l B u lle tin , at 10-11 (May, 
1977). This is because all persons past a certain age have no 
possibility of dying at that age or younger, and people with lower 
death ages are therefore out of the pool that is available to com­
pute average life expectancy. Retirement plans are concerned with 
the likelihood of living past the normal retirement age; this likeli­
hood increases significantly for the reason just stated, with the age 
when first covered. Thus, a plan truly concerned with individual 
equity would charge higher contributions, or pay lower benefits, to 
workers older when they began working than to younger workers 
with equivalent years of service.

703



2 8

entiations are unheard of in group employee pension 
plans.

We are not suggesting here that the sex-differentia­
tion would be any more valid under Title V II  if 
other statistically significant indices of life expectancy 
were used as well. Rather, the point is tha t since this 
very pension plan, and other sex-differentiated pen­
sion plans, have operated successfully without subdi­
viding potential beneficiaries into various other 
possible sub-groupings based on life expectancies, to 
denominate a sex-neutral approach as “irrational” or 
as requiring employers to ignore relevant and impor­
tan t considerations, is the result of “habit, rather 
than analysis or actual reflection . . .  [,] the acciden­
tal byproduct of a traditional way of thinking about 
[sex differences].” Califano v. Goldfarb, 430 U.S. 
199, 222-23 (1977) (Stevens, J ., concurring.)

We are not contending that in setting undifferen­
tiated contribution or benefit rates for the entire 
group of covered employees, actuaries may not con­
sider the sex composition of the group. As the Society 
of Actuaries points out (Actuaries Br., a t 19), such 
consideration is useful to establish the probable cost 
of various benefit levels. In  practice, “the main de­
term ining characteristics [of cost] are the age com­
position, the service composition, the composition by 
sex and race, frequently the level of earnings, and 
what the probable fu ture might hold for the particu­
lar group involved because of the changing economic 
picture.” Fellers, “Pension Costs and Cost Experi­
ence,” in Bureau of Rational Affairs, Pensions and 

704 Profit Sharing, 151 (3rd ed. 1964).



2 9

B ut the fact that it is useful to take sex as well as 
other factors into account in determining the benefits 
available to the entire group for a  given cost, or the 
cost for given benefits, certainly does not indicate 
that benefits or costs, once determined, must be dis­
tributed by sex as well, or tha t it is “irrational” not 
to do so. Indeed, for reasons to be explained, it is the 
essence of group insurance, as opposed to individual 
insurance, that, to the degree possible, all members 
of the group be offered equal benefits a t equal cost.

Moreover, even were it the practice, as it is not in 
most group insurance, to distribute benefits and costs 
according to sub-groupings demonstrating demonstra­
bly different risks, it would still not be “irrational” to 
prohibit the application of this practice in particular 
instances. “ [C jertain  classifications which may be 
perfectly feasible from an actuarial standpoint may 
be barred . . . for reasons of social policy. F or ex­
ample, black persons exhibit shorter longevity than 
white persons, but they are not charged a lower 
amount when they purchase [individual] annuities or 
a higher amount when they purchase life insurance.” 
Actuaries’ Br., at l l . 18

In  accordance with the principle that public policy 
considerations can prevent the use of certain classi­
fications based on statistical showings tha t would

18TIA A  claims that “at the higher ages (which are the ages rele­
vant here), there is* no significant difference in the longevity for 
white and non-whites.” TIAA Br., at 6. While it is true that life  
expectancies after the usual retirement age, 65, are approximately 
equal for whites and non-whites, it is n o t true that this is the rele  ̂
vant question. Obviously, pension plans must concern themselves 
not only with how long people are likely to live after retirement 
but with whether they are likely to live long enough to retire at 
all. See  n.17, supra.

705



30

otherwise be adequate, many of this Court’s sex dis­
crimination cases invalidating gender classifications, 

“have . . . rejected the use of sex as a decision 
making factor even though the statutes in ques­
tion . . . rested on . . . predictive empirical rela­
tionships.
“In  both Frontiero [y. Richardson, 411 U.S. 677
(1973)] and [Weinberger v.] Wiesenfeld [420 
U.S. 636 (1975)] [this Court] expressly found 
appellees’ empirical defense of mandatory de­
pendency tests for men but not for women to be 
unsatisfactory, even though it  recognized tha t hus­
bands are still fa r less likely to be dependent 
on their wives than vice versa. . . .  I t  is unreal­
istic to expect either members of the judiciary 
or state officials to be well versed in the rigors 
of experimental or statistical technique. B ut this 
merely illustrates that proving broad sociological 
propositions by statistics is a dubious business, 
and one tha t inevitably is. in tension with the 
normative philosophy that underlies the Equal 
Protection Clause. . . .  In  sum, the principles 
embodied in the Equal Protection Clause are not 
to be rendered inapplicable by statistically mea­
sured but loose-fitting generalities concerning the 
. . . tendencies of aggregate groups.”

Craig v. Boren, 429 U.S. 190, 202 and n. 13, 
204, 208 (emphasis added).19

19The fact that the prohibition against p er  se gender-based 
discrimination is tested under Title V II by a stricter standard 
of scrutiny than under the Equal Protection Clause (see Part 
I, s u p r a ) ' only heightens the import of the equal protection 
cases in this context. I f  objective statistical significance is in­
sufficient to override “the normative philosophy that underlies 
the Fourteenth Amendment,” it is certainly insufficient to override 
the express prohibition of Title V II unless the statutory de­
fenses apply.

706



31

Nor is the insurance context distinguishable because 
it is not possible to determine with any certainty 
which women (and men) will ultimately live longer 
than the average person. W hile it would have been 
possible, although administratively inconvenient, to 
determine dependency in Front,iero, Wiesenfeld and 
Galifano v. Goldfarb, supra, in other eases it was 
difficult or impossible to discover in advance precisely 
which individuals, men and women, had the tra it 
which allegedly justified the gender-based discrimi­
nation. In  Craig, for example, “there [was] no appar­
ent way to single out persons likely to drink and 
drive.” 429 U.S. a t 227 (Rehnquist, J., dissenting). 
Nonetheless, “in jury  to all of the young men of the 
state [cannot] be justified by visiting the sins of the 
2% on the 98%.” Id., a t 214 (Stevens, J., concur­
ring).20

The same was the case in Stanton v. Stanton, supra. 
While it “may be true that girls m ature earlier than 
boys” (421 U.S. at 14), there is probably no practical 
way for the state to determine which girls are more 
mature or which boys less mature, or to legislate on 
the basis of m aturity rather than gender.

20A  similar problem could arise under Title V II itself. Auto­
mobile insurance statistics show women on the average to be 
safer drivers than men. And, it  may not be possible, even using 
other indices of safe driving, to determine which men present 
special risks. Nonetheless, we assume that an employer could not 
hire only male drivers. “Since some men are safe drivers and 
some women are not, this type of policy constitutes explicit sex 
discrimination.” Note, E m p lo y m e n t D iscr im in a tio n  a n d  T itle  
V IJ  o f th e  C iv il R ig h ts  A c t  o f  1964, 84 H a r v . L. R ev. 1109, 1174 
(1971).

707



32

Indeed, this ease differs from Craig and Stanton 
in that if, fo r some reason, it is felt to be important 
to the success of a particular plan to separate out 
higher and lower risk persons, there are simple means 
to do so other than sex classification. Title V II  would 
have no effect, for example, upon plans imposing 
special, actuarially determined surcharges upon non- 
smokers, or upon persons living in Maryland rather 
than the D istrict of Columbia, see n.n. 14 & 16, supra.21

Thus, we are not suggesting tha t Title V II  requires 
“irrational” decision making. To the contrary, it re­
quires only tha t one kind of classification, which is 
in no way necessary, not be used, because to do so 
would contravene the plain public policy that indi­
vidual women may not be penalized because of “the 
. . . tendencies of aggregate groups” of women. Craig, 
supra, 429 U.S., at 208.

2. Economics: The second contention—that it is 
economically essential to take sex into account in dis­
tributing costs and benefits in pension plans—is, of 
course, also belied by the widespread practice of 
established plans, which do not pay lower benefits at 
retirem ent age to women and do not charge them 
more. I t  is nonetheless worth examining the economic 
argument closely, because petitioners and their sup­
porting amici place such great reliance upon it.

21Even if  more women than men, or more blacks than whites, 
do not smoke, or live in Maryland, there would be no p er  se dis­
crimination under Title V II. See T eam sters, su p ra , 431 U.S. at 
335, n.15.

708



33

The basic argument is that “ [ i] f  individuals are 
forced to pay premiums which subsidize other per­
sons’ risks tha t are substantially greater than their 
own . . . they will eventually withdraw from the pool.” 
TIAA Br., a t 6; see also Actuaries’ Ur., a t 9-10; Life 
Ins. Council Br., at 46. This theory is sensible to a 
degree when one is dealing with individual insurance 
sales.22 B u t it entirely disregards a key ingredient of 
almost all employee group benefit plans, including 
this one: tha t participation by all employees is man­
datory, and tha t adverse selection is therefore not a 
possibility. This factor explains both why sex- 
neutral employee pension funds are not collapsing as 
a result of their failure to discriminate against 
women, and why even sex discriminatory group pen­
sion plans such as the one in this case do not

22Even then, the theory does not dictate w hich  of all possible 
statistically significant sub-groupings are to be separated out for 
differential pricing or benefits, and thus does not compel gender 
differentiation. _ It would be administratively impossible, and 
counterproductive to the basic purposes, of insurance, to calculate 
rates on the basis of all, or most known determinants of risks. At 
some stage, the premium would become so individualized as not 
to represent any “pooling” at all. A t no point do any of the amici 
contend that gender is the best single feasible determinant of 
longevity, and they therefore have not explained why it is neces­
sary to distinguish on the basis of gender rather than on the 
basis of another factor or factors.

Also, the adverse selection theory depends in  part on an 
entirely free, unregulated market, which insurance decidedly is 
not. That is, if  all insurance were available only on a sex-neutral 
basis, adverse selection would not be possible, because- those who 
withdraw from one pool could not join another more advantageous 
to them. This is why, presumably, the race differential in lon­
gevity has not led to wholesale bankruptcy of insurance funds, 
as amici’s arguments would suggest.

709



34

differentiate in other ways according to degree of 
risk.23

Apparently, in recognition of the inapplicability 
of the adverse selection theory to mandatory employee 
group insurance, two attem pts are made to apply this 
theory in the group insurance context.

The first suggestion is tha t low risk employees can 
adversely select by declining employment where there 
is a nondiseriminatory policy for benefits. But, it is 
absurd to suppose:

23This benefit of mandatory coverage also shows that the con­
cept that p er  se discrimination in group employee benefit plans 
should be tested by whether similar effects would occur if  the 
contributions were converted to wages and then used to purchase 
individual insurance or annuities is misleading. Once contri­
butions are converted into wages, the advantages of mandatory 
group insurance are lost: the savings in administrative cost 
disappear but, more important here, the possibility of adverse 
selection reappears. Thus high risk individuals, male and female, 
may have to pay more than others, and some may not be able 
to get individual insurance at all.

Moreover, pensions as such are not even available on the 
private market. W hile individual annuities can be purchased, 
these have entirely different characteristics than most employee 
pension plans and receive the tax advantages of pension plans 
only to a limited degree. Thus, there is no individual market 
substitute for employee pension plans, as unions which have put 
increasing emphasis on bargaining for benefits rather than for 
wages well know.

The failure of the deferred compensation approach can be 
seen most clearly by considering the following hypothetical: 
Suppose an employer paid all women a certain wage, and paid 
all men a lower wage, with the difference being contributed to a 
pension fund mandatory for men but not available to women. 
For the reasons just explained, the women could not expect to 
purchase on the private market an aetuarially equivalent pension. 
There would plainly be a Title V II violation, even though the 
employer’s cost for men and women was the same. Thus, the 
amount of an employer’s contribution to a pension plan cannot 
be the relevant factor in determining equality, and employee 
benefit plans must be looked at from the perspective of benefits 
received.

710



35

“tha t a male [employee] would consider any such 
differential [in life expectancy] in light of the 
equal manner in which male and female [em­
ployees] have qualified . . . and in light of the 
equal daily human needs which both male and 
female annuitants have, and upon such consider­
ation would [decide] whether to accept [an] offer 
of employment. . . . ”

Reilly v. Robertson, 360 jNT.E.2d 171, 177 (Ind.
Sup.Ct. 1977).

While potential pension benefits may be a factor in 
determining whether to accept a particular job, i t  is 
only one of many factors; and, as to pensions, the 
basic concern will be whether the pension available 
is a good one, not whether it could be better by a tiny 
fraction if other employees received less. F u rther­
more, if  our position in this case prevails, essentially 
all employment plans would be sex-neutral, so that 
adverse selection by choosing jobs tha t have sex 
discriminatory pension plans would not be a 
possibility.24

The second suggestion is that, while individuals 
cannot self-select, groups will do so—that is, employ­
ers with a prim arily male work force will self-insure 
rather than purchase annuities from insurance com­
panies a t prices that reflect sex-neutral mortality

24The alternative of choosing a job without a pension plan and 
hoping to purchase a better annuity for oneself on the private 
market with resulting extra income is ordinarily not a possibility. 
See n.23, supra . The pension benefits received by men under 
the UAW  and AFL-CIO affiliates’ plans, for example, are- in­
comparably better than individual annuities they could purchase 
with the contribution amount.

711



36

rates, thus altering unfavorably the risk composition 
of insured plans as a whole. See Life Ins'. Council 
Br., at 46-47.25 But, as noted earlier, we are not advo­
cating that the contribution rates charged for the 
group as a whole may not take into account the sex 
composition of the, work force. Our contention is only 
that, individuals may not, be charged more, or receive 
less, because of sex. Thus, for those plans funded 
through private insurance, there is no1 reason why 
rates cannot reflect the risk presented by each em­
ployer group as compared with other groups covered 
by the same insurer. Heavily male plans need not 
be disfavored in any way if  our position prevails, and 
they will have no reason to abandon the insurance 
scheme.26

3. Subsidization: The final reason it is claimed 
tha t employee benefit schemes cannot be subjected 
to ordinary Title Y II  analysis is that to do so would 
force employers “to take some of the funds con­
tributed by and for the men and pay those funds to 
the women,” and that this would be “discriminatory 
in the extreme.” TIAA Br., at 24; see also Life Ins. 
Council Br., at 44-45; A ctuaries’ Br., a t 10-11. But, 
of course, “subsidy” by those who do not incur a

“ This argument, we take it, applies only to pension plans that 
are insured rather than trusteed. See  Actuaries Br., A-7.

“ There is another, practical factor as well which invalidates 
the. L ife Insurance Council’s analysis: most large plans already 
self-insure, while most small plans cannot economically do so. 
Actuaries’ Br., at 22; Life Ins. Council Br., at 46 n. 100. Thus, 
for most of the plans currently funded through insurance, with­
drawal from the risk pool is not a possibility.

712



37

risk, of those who do, is at the core of insurance. 
Thus, unless insurance itself is unfair, there is nothing 
inherently inequitable when funds derived from con­
tributions on behalf of one set of individuals are used 
to pay benefits to another set of individuals who 
live longer. That is why pension plans work at all.

Moreover, mandatory group benefit programs, in 
particular, rely on cross-subsidization of high risk 
persons by low risk persons. Because participation is 
mandatory, it is possible, a t least in a large enough 
plan, to assume a representative cross-section of risks, 
and therefore to offer insurance to individuals who, 
because of the high risk they represent, could not 
obtain adequate benefits on the private market at an 
affordable cost.

An example may be useful here. Age at onset of 
coverage is a very strong predictor of age at death. 
That is, persons who1 are twenty-five can expect to 
live to be 74.8; persons who are forty can expect to 
live to be 75.8; and sixty year old people can expect 
to live to be 79.4. Metropolitan Life Insurance Co., 
Statistical Bulletin, at 10-11 (May, 1977); see n. 
17, supra. Thus, persons who begin working at 
younger ages, or are younger when a  pension plan 
begins, are plainly “subsidizing” those who are older 
at the outset. Yet, many new employee pension plans 
are designed in a  way which exacerbates this imbal­
ance : workers are given past service credit for pension 
calculation purposes even for years in which there 
were no contributions, and the funding of past, service 
liability is then amortized over time.

713



38

The general perception is not tha t this system is 
unfair, but that i t  is an example of the benefits of 
group employee pension plans. For, in  this way, it 
is possible to provide fa ir  pensions fo r older workers 
in a manner which would be impossible with individ­
ual annuities purchased on the private market.27

Thus, the assertion tha t it is “ discriminatory in 
the extreme” to have sex-neutral pension plans cannot 
be based on any fundamental inequity in  providing 
equal benefits to higher and lower risk persons. 
Rather, that argument amounts to the contention that 
low risk men are somehow entitled to be assured that 
fluids contributed “by and for them” are used to 
finance pensions only for high risk—for example, 
older—men, and not for high risk women as well.28 
Nowhere is it explained why low risk individuals 
who at any rate  will be “subsidizing” others in the 
risk pool, have any fundamental righ t to be certain

27There are other prevalent examples as well. One is the 
practice of providing survivor’s benefits at no extra cost to the 
employee. Plainly, where such benefits are available, single em­
ployees are “subsidizing” married employees.

Another instance is the recent negotiation of plans providing 
for full, or nearly full, retirement benefits after a specified 
number of years of service, regardless of age. Under such plans, 
persons who begin working at a young age receive, benefits 
actuarially superior to those -who begin working later, for they 
can receive benefits for many years longer. For example, the 
UAW  “big three” automobile industry plans would permit an 
employee who started work at eighteen to retire with full pension 
benefits at 48.

28Under a sex-neutral plan, the 84% of men who live as long 
as 84% of women and therefore derive the same benefits from 
the plan as such women surely have no possible complaint. In­
deed, they derive an extra benefit from the Departm ent’s present 
plan solely because other men don’t live as long as some women.

714



39

that the group they are helping to fund is composed 
of their sex.

Thus, the repeated but unexplained assertions' that 
sex-neutral benefits are somehow unfair graphically 
reflect the kind of rigid sex-classification approach 
to employment relationships which Title YIT was 
designed to cure. I f  it is not “discriminatory in the ex­
treme” for smokers to “subsidize” non-smokers, blacks 
to “subsidize” whites, residents of the D istrict of 
Columbia to “subsidize” residents of Maryland, or 
younger workers to “subsidize” older workers—in­
deed, if  this pooling of higher and lower risks is the 
central advantage of group employee pension plans— 
we fail to perceive any inherent inequity if  the same 
process occurs between men and women.

4. Indices of Legislative Intent: Since the appli­
cation of traditional Title V II  sex discrimination 
standards to employee benefit plans is not inherently 
unworkable, there is no reason whatever to assume 
that ordinary Title Y II  coverage was not intended. A 
specific indication of purpose would have been neces­
sary only if there had been a purpose not to apply 
the usual analysis to benefit programs.

There are, nonetheless, two suggestions that the 
language used in Title Y II  was generally understood 
by Congress to prohibit gender-based discrimination 
in pension plans. F irst, when Title Y II  was originally 
under consideration, there were proposals to include 
a ban on age discrimination as well as on race, sex, 
religious, and nationality discrimination. These pro­
posals were rejected precisely because it was perceived

715



40

tha t the language of § 703(a) of Title Y II  would 
then prevent age distinctions in pension and retire­
ment plans. See U.S. Equal Employment Opportunity 
Commission, Legislative History of Titles V II and 
X I  of the Civil Eights Act of 1964, a t 3174 (1968).

Three years later, the Age Discrimination in Em­
ployment Act was passed. 29 U.S.C. § 620 et seq. Its 
affirmative prohibitions are cast in essentially the 
same language as those in § 703(a) of Title V II. 
Compare 29 U.S.C. § 623(a) (1) and (2) with 42 
U.S.C. § 2000e-2(a) (1) and (2). Unlike Title V II, 
however, it contains an explicit exception for “ any 
bona fide employee benefit plan such as. a retirement, 
pension, or insurance plan, which is not a subterfuge 
to evade the purposes of this chapter.” 29 U.S.C. 
§ 623 (f) (2).

In  United Airlines, Inc. v. McMann, .....  U .S ........,
46 U.S.L.W. 4043 (1977), this Court considered at 
length the history and purpose of this express excep­
tion in the Age Discrimination in Employment Act. 
From  the m aterials there surveyed, it is clear that 
one reason the exception was thought necessary was 
the belief tha t without it, the bill would “ not provide 
any flexibility in the amount of pension benefits pay­
able to older workers depending on their age when 
hired.” H earings of S. 830 before the Subcommittee 
on Labor of the Senate Committee on Labor and 
Public W elfare, 90th Cong., 1st Sess., at 53 (1967),
quoted in McMann, supra, .......  U.S. at ....... , 46
U.S.L.W., at 4045. Section 623 (f) (2) was therefore 
added, to assure that “ [a]n  employer will not be

716



41

compelled . . .  to afford to older workers exactly the 
same pension, retirement, or insurance benefits he 
affords to younger workers.” Remarks of Senator 
Javits, 113 Cong. Rec. 31255 (1967).29 Thus, a t least 
in 1967 and, presumably in 1964 when it rejected an 
“age” addition to Title Y II  because of the possible 
effect upon pension plans, Congress understood per­
fectly well that, without a specific exception, the lan­
guage of Sections 703(a)(1) and (a )(2 )  of Title Y II  
requires equal pension benefits and employee contribu­
tions for those classifications which are covered by the 
Act.

Second, and related, was a specific attem pt in 1970 
to add a parallel exception to Title V II  itself. In  that 
year, a bill to amend Title V II  was passed by the 
Senate after extensive hearings. A similar bill was 
reported out by the House Committee on Education 
and Labor, bu t never reached the House floor. Those 
bills, S. 2453 and H.R. 17555, included the coverage 
for public employees, such as respondents here, which 
was eventually added by the 1972 amendments'. See 
H.R. Rep. No. 92-238, 92nd Cong., 1st Sess., at 2 
(1971).

W hen H.R. 17555 was under consideration by the 
General Labor Subcommittee, Congressman Esch pro­
posed an amendment which would have provided that: 

“ [ I ] t  shall not be an unlawful employment prac­
tice to observe a pension or retirement plan, the 
terms or conditions of which . . . provide for

29Senator Javits was the minority floor manager of the bill.
See  McMann, su p ra ,   U.S. at  , 46 U.S.L.W., at 4049
(Marshall, J., dissenting).

7 1 7



42

. . . reasonable differentiation between employees, 
provided that such pension or retirement plan 
is not merely a subterfuge to evade the purposes 
of this title .”

The Subcommittee accepted this amendment, which 
was quite similar in language, and seems to have 
been similar in intent, to the Age Discrimination 
Act exception enacted three years earlier. Before 
consideration by the full Committee on Education 
and Labor, however, the Representative who had been 
most responsible for persuading other members to 
take seriously the addition of sex discrimination to 
Title V II, Congresswoman Griffiths, wrote to the 
members of tha t Committee, explaining why the Esch 
amendment would be contrary to the premises of 
Title V II  and had no practical necessity:

“The effect of [this] amendment is so startling 
that it is hard  to believe it. . . . I t  . . . simply 
repeals Title V II  so fa r as concerns pension and 
retirement plans. . . .

Title V II  of the 1964 Civil Rights Act . . . 
makes it unlawful for any . employer ‘ ‘ to dis­
criminate against any individual” on the basis 
of race, color, religion, sex or national origin 
with respect to “ compensation, terms, conditions, 
or privileges of employment.” The employee’s 
option to retire  a t a certain age is clearly a 
“ privilege” of employment, and the terms and 
benefits of a retirem ent plan are certainly de­
rived from the employment relationship. There­
fore, Title V II  plainly prohibits discrimination 
with regard to pension and retirem ent plans on 
the basis of race, color, religion, sex, or national

718



43

origin. Since the same language of Title V II  
applies to race discrimination as to sex discrimi­
nation, i t  is clear tha t both race and sex dis­
crimination are not permissible with respect to 
pensions and retirem ent plans. . . .

Sometimes I  hear the argument tha t sex dis­
tinctions . . . are reasonable because of sex 
differences in actuarial m ortality tables. Yes, 
women do live longer than men. . . .

[But] there is no valid national need for the 
Esch amendment. Over 95 percent of all pension 
plans under collective bargaining reported pu r­
suant to the W elfare and Pension Plans Dis­
closure Act contain no distinction between men 
and women workers. The other 5 percent con­
tained sex differentials only as to the age required 
for participation in the pension plan or for 
retirement. . . . Furtherm ore, industry at present 
rarely makes sex the basis for differences in the 
pensions paid to the retired employee, or in the 
amount of credited service and earnings neces­
sary to receive such benefits. Yet the Esch amend­
ment would sanction and encourage sex dis­
crimination in all of these aspects, and others, 
of pension and retirem ent plans, “notwithstand­
ing any provision of Title V II .” In  [tru th] the 
Esch amendment is so broad as to constitute 
virtually a blank check for sex discrimination 
in pension and retirement plans. . . .

Since the Federal Civil Service and Social 
Security retirement systems operate effectively 
without broad scale sex discrimination, I  see no 
reason why non-Federal pension and retirement 
plans cannot also operate effectively without sex 
discrimination. . . .

719



44

The Esch amendment has no place in a country- 
dedicated to the proposition of equality of op­
portunity regardless of race, color, religion, sex 
or national origin. I t  should be soundly rejected.”

Letter and Analysis by M artha W. Griffiths 
concerning the Esch amendment to H.R. 
17555, 91st Cong., 2d Sess., in Congressional 
Inform ation Service, Discrimination Against 
Women, a t 380-382. (Bowker, Ed., 1973).30

The Esch amendment was apparently deleted by 
the full Committee in response to these arguments.31 
And, when the following Congress again considered, 
and passed, amendments to Title V II, including the 
amendment covering public employees which gave rise 
to the present cause of action, there was no attempt, 
as fa r  as we can determine, to exclude pension plans 
from the Act’s coverage.

In  sum, the various arguments why Congress could 
not have intended to require that the usual Title 
V II  analysis apply to pension plans all fail upon 
analysis, and there are specific indications that the 
language of Title V II  was understood to require 
equality in both periodic benefits and employee con­
tributions. Consequently, unless there is an applicable 
statutory exception, the Departm ent’s pension plan 
is invalid.

30Congresswoman Griffiths’ letter and analysis contain a 
persuasive discussion of some of the issues involved in  this case 
and are therefore reproduced in their entirety in  the Appendix 
to this brief.

31The bill as reported to the House floor contained no provision 
exempting pension plans from the fu ll strictures of Title VII. 
See  H. Rep. No. 91-1434, 91st Cong., 2nd Sess. (1970).

720



45

I I I
THE BENNETT AMENDMENT TO TITLE V II DOES NOT PERMIT 

EXPRESS GENDER-BASED DIFFERENCES IN EMPLOYEE 
BENEFIT PLANS

Since petitioners’ pension plan entails express 
gender-based discrimination, and since there is no 
persuasive reason to believe tha t Congress intended 
special Title V II  standards to apply to such dis­
crimination in the insurance context, the plan must 
be found to violate Title V II  unless it falls within 
one of the Act’s specific exemptions. Petitioners and 
their supporting amici urge that the Bennett Amend­
ment, which permits gender-based wage disparities 
under Title V II  to the extent they are “authorized” 
by the Equal P ay  Act, provides such an exemption.32 
An analysis of the Equal P ay  Act reveals, however, 
that it does not “authorize” gender-based disparities 
in pension contributions or benefits.

The Equal P ay  Act is Section 6(d) of the P a ir 
Labor Standards Act, 29 U.S.C. §206(d). I t  pro­
vides in relevant part:

“No employer having employees subject to any 
provisions of this section shall discriminate within 
any establishment in which such employees are 
employed, between employees on the basis of sex 
by paying wages to employees in such establish-

32The Bennett Amendment provides:
“It shall not be an unlawful employment practice under 

this subchapter for any employer to differentiate upon the 
basis of sex in determining the amount of the wages or 
compensation paid or to be paid to employees of such em­
ployer if  such differentiation is authorized by the provisions 
of section 206(d) of Title 29.”

42 U.S.C. §2000^2 (h).

721



46

ment a t a rate less than the ra te  a t which he 
pays wages to employees of the opposite sex in 
such establishment for equal work on the jobs 
the performance of which requires equal skill, 
effort, and responsibility, and which are per­
formed under similar working conditions, except 
where such payment is made pursuant to (i) 
a seniority system; (ii) a m erit system; (iii) a 
system wdiich measures earnings by quantity or 
quality of production; or (iv) a differential based 
on any other factor other than sex. . . . ”

Thus, gender-based discrimination in wages must 
satisfy two tests in order to be “authorized” by the 
Equal P ay  Act and thereby exempted from Title 
V II  under the Bennett Amendment: First, the dis­
crimination must fall within the scope of the Equal 
P ay  Act, i.e., it must affect “wages” as that term 
has been defined for purposes of the P a ir  Labor 
Standards Act, of which the Equal P ay  Act is a part. 
Second, the disparity in wages must be authorized 
under one of the four exceptions set forth  in the 
Equal P ay  Act.

A.
The equal pay act does not cover employee benefit plans

Petitioners and their supporting amici have as­
sumed the satisfaction of the first test, and have 
consequently centered their Equal Pay  Act discussion 
on the second. I t  is our view, however, that benefit 
plans of the kind here at issue are not within the 
purview of the Equal P ay  Act a t all, and that the 
Equal P ay  Act therefore cannot “authorize” any 
disparities with regard to them. For, it is quite plain

722



47

that such plans are not “wages” for purposes of the 
minimum wage provisions of the F a ir  Labor Stand­
ards Act (“FL SA ”), and tha t FLSA  concepts apply 
under the Equal P ay  Act.

As originally proposed, the Equal P ay  Act would 
have been an independent statute. Both the House 
and Senate Committees to which the proposed legis­
lation was referred, however, reported the bill out 
as an amendment to the FLSA. This was done in 
order to perm it incorporation of longstanding defi­
nitions in and interpretations of the FLSA, so that 
the administration of the new Act would be facili­
tated. See S. Rep. No. 176, 88th Cong., 1st Sess., at 
3 (1963); H. Rep. No. 309, 88th Cong., 1st Sess., 
a t 2 (1963).

F or example, the House Committee on Education 
and Labor explained that the bill was made a part 
of the FLSA  “because both industry and labor have 
a long-established fam iliarity with existing fa ir  labor 
standards provisions.” H. Rep. No. 309, supra, at 
2; see also S. Rep. No. 176, supra. And a number of 
Committee members including Congressman Goodell, 
the author of the amendment placing the Equal P ay  
Act in the FLSA , pointed out in their Supplemental 
Views tha t:

“The definitions and interpretations of the F a ir  
Labor Standards Act apply. These have been 
court tested and are generally understood by 
business and labor.”

H. Rep. No. 309, supra, a t 8; see also remarks 
of Senator McNamara, floor manager of the 
Senate bill, 109 Cong. Rec. 8914.

723



48

The concept of what constitutes “wages” is, of 
course, central to both the minimum wage provisions 
of the FLSA  and to the Equal Pay  Act. Since Cong­
ress inserted the Equal P ay  Act into the very section 
of the ELSA that prescribes the minimum wage, 
Section 206, the definition of wages generally appli­
cable under Section 206 must be pertinent to the 
interpretation of the Equal P ay  Act. And mandatory 
employee contributions to employee benefit plans are 
not considered wages for the purposes of the mini­
mum wage provisions of the ELSA. U nder Section 
206 of the FLSA, as this Court pointed out in 
jBrooklyn Savings Bank v. O’Neil, 324 U.S. 697, 707- 
OS (1945), “wages” are resources available for im­
mediate use to meet daily needs:

“ [The F a ir  Labor Standards Act] constitutes a 
Congressional recognition tha t failure to pay the 
statutory minimum on time may be so detrimental 
to maintenance of the minimum standard of liv­
ing ‘necessary for health, efficiency, and general 
well-being of workers’ and to the free flow of 
commerce. . . . Employees receiving less than the 
statutory minimum are not likely to have suf­
ficient resources to m aintain their well-being and 
efficiency until such sums are paid a t a future 
date.” (emphasis added).

The Court stressed the importance of “prompt pay­
ment to workers of wages.” Id. at 707, n. 20.

Obviously, neither contributions to pension plans 
nor benefits to be received years la ter are available 
to meet present daily needs. F or this reason, the Labor 
Departm ent has consistently maintained, and courts

724



49

have agreed, tha t an employer may not count pension 
contributions made pursuant to an involuntary plan 
as “wages” fo r purposes of determining whether the 
employee lias in  fact been paid the minimum wage. 
See 29 C.F.R. §531.40; see Brennan v. Modern Chev­
rolet Co., 363 F.Supp. 327, 332 (N.D.Tex. 1973).33

Aside from Congress’s general intention to incor­
porate FLSA  definitions and concepts into the Equal 
P ay  Act, there are several specific indications that 
pension plans are not “wages” for purposes of the 
Equal P ay  Act. F irst, Congress had the same con­
cern with immediate purchasing power when it en­
acted the Equal Pay Act as when it  passed the FLSA  
originally. Compare “Declaration of Purpose,” Equal 
P ay  Act, Section 2 (a )(1 ) , 77 Stat. 56, with “Declara­
tion of Policy,” Section 2 (a), F a ir  Labor Standards 
Act of 1938, 52 Stat. 1060. See also Shultz v. Wheaton 
Glass Co., 421 F.2d 259, 265 (3rd Cir. 1970). As 
Senator H a rt stated:

“W e have long passed the time when women 
were allegedly working for ‘pin money.’ Women 
are working to earn a living, to support families 
or to contribute to the family’s ability to send 
the children to college—in addition to whatever

ssC f. B re n n a n  v . V e tera n s C leaning Serv ice , 482 F.2d 1362, 
1369 (5th Cir. 1973) (“the minimum wage must normally be paid 
‘free and clear’.”). S ee  also, 29 C.F.R. §531.35.

Section 3(m ), 29 U.S.C. §203 (m ), the definition section of the 
FLSA, does recognize that “wages” need not be cash. It defines 
“wage” to include the furnishing of “board” and “lodging” by 
an employer. This definition is quite consistent with the view that 
the focus of the F L SA  is on immediate spending power. For, 
providing the sort- of employee benefit counted as wages under 
§3(m) is the functional equivalent of cash: it furnishes directly 
the daily necessities for which cash would otherwise be used.

725



50

personal sense of achievement may be involved. 
The supermarket does not have a special price 
on its groceries for women, the doctor does not 
have a special rate for them, their rent, is not 
based on sex. W hy then do we allow a pay dif­
ferential to continue which gives them a smaller 
paycheck than others performing the same 
work?”

109 Cong. Rec. 8916 (1963).

-Second, the Senate Committee Report recommend­
ing enactment of the Equal P ay  Act specifically sup­
ports the notion that pension plan contributions were 
not considered to be “wages” under the Act. The 
Report points out that employers expressed concern 
about having to pay women the same wages as men 
because of allegedly higher costs associated with the 
employment of women. A key example was pension 
plan contributions :

“Some employees stated tha t the cost of their 
pension plans were higher for women than men 
because of . . . the longer life span of women 
in pension benefits.”

S. Rep. No. 176, 88th Cong., 1st Sess., 4 
(1963).34

I f  pension plans were considered “wages” under the 
Act, this concern would have been invalid, since the 
combination of women’s lower wages and the higher 
pension contributions from employers would have

^Petitioners and some amiei assert that by noting this concern, 
Congress approved of differential pension benefits for women. As 
we show later (infra,, at 57-59), the quotation read in context 
leads to the opposite conclusion.

726



51

amounted to the same total “wages” received by men, 
thus eliminating the issue of “wage” discrimination.

Finally the Labor Department has always recog­
nized that the term “wages” as used in the Equal 
Pay Act:

“is considered to have the same meaning it has 
elsewhere in the [F air Labor Standards] Act. . . . 
As a general rule, in determining compliance 
with the equal pay provisions, the wages paid 
by the employer will be calculated pursuant to 
the same principles and procedures as have tra­
ditionally be [sic] followed in calculating such 
wages for purposes of determining compliance 
with the minimum wage provisions of the Act.” 
29 C.F.R. §800.110 (emphasis added).35

S5On the precise question of whether pension plan contributions 
or benefits are “wages” for Equal Pay Act purposes, the Labor 
Department’s position is1 less clear. On the one hand, 29 C.F.E. 
§800.116 (d), the regulation upon which petitioners and their 
supporters principally rely, seems to suggest that they are wages, 
although all that is affirmatively said is that certain kinds of 
inequalities in pension plans are not “prohibited” by the Act. 
However, on February 3, 1967, some 18 months after Section 
800.116(d) was' promulgated, the Department published another 
regulation entitled “Particular Types of Payments as Wages.” 
I t  provides:

“Study is still being given to some categories of payments 
made in connection with employment subject to the Act, to 
determine whether and to what extent such payments are 
remuneration for employment that must be counted as part 
of wages for equal pay purposes. These categories of pay­
ments include . . . contributions irrevocably made by an 
employer to a trustee or third person pursuant to a bona fide 
plan for providing old-age, retirement, life, accident or health 
insurance or similar benefits for employees.”

29 C.F.E. §800.113 (emphasis added).
The Fifth Circuit has also expressed doubts that the Equal Pay 

Act covers fringe benefits similar to those in the present case.

727



52

Thus, while pension plan contributions and benefits 
are considered “compensation, terms, conditions and 
privileges of employment” under Section 703(a)(1) 
of Title V II36 they are not considered “wages” under 
the Equal Pay Act, because they are not wages for 
purposes of Section 206 of the ELSA, Since pension 
plans are outside the scope of the Equal Pay Act, the 
Bennett Amendment, which applies only to discrim­
ination in compensation authorized by that Act has 
no bearing on this case.37

In Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 723 
n .l (1970), that court states:

“ [I ] t is far from clear that standard types of fringe benefits
are eligible for inclusion in ‘equal pay’ determinations.”

“ “Congress intended Title V II to reach retirement plans as 
conditions of employment just as such plans are viewed as employ­
ment conditions under the National Labor Relations Act.” Peters 
v. Missouri-Pacific Railroad Go., 483 F.2d 490, 492 n.3 (5th Cir.), 
cert, denied, 414 U.S. 1002 (1973); Rosen v. Public Service 
Electric <& Gas Co., 477 F.2d 90, 95 (3d Cir. 1973); Bartmess v. 
Drewrys, 444 F.2d 1186, 1188-1189 (7th Cir. 1971); cf. Inland 
Steel Co. v. National Labor Relations Board, 170 F.2d 247 (7th 
Cir. 1948), cert, denied, 336 U.S. 960 (1949).

37In General Electric Co. v. Gilbert, supra, the Court may have 
indicated that disability benefits under a self-insurance plan were 
wages under the Equal Pay Act. Unlike the pension contributions 
and benefits at issue here, however, the disability benefits in 
Gilbert were temporary wage substitutes similar to those payments 
described as Equal Pay Act wages under 29 C.F.R. §800.lio, and 
not, as here, “contributions irrevocably made by an employer to 
a trustee or third person.” 29 C.F.R. §800.113, promulgated the 
same day as §800.110. In addition, to the best of our knowledge, 
neither the parties nor the amici in Gilbert presented the Court 
with the issue of whether such benefits were in fact within the 
scope of the Equal Pay Act.

728



53

B.
If employee benefit plans are covered by the Equal Pay Act, 

that Act does not “authorize” express gender-based differ­
ences in such plans

Should the Court disagree with the proceeding 
analysis, it will have to determine whether the 
Department’s gender-based disparities in pension con­
tributions are “authorized” by one of the four 
“exceptions'” to the Equal Pay Act.38 Otherwise, the 
Bennett Amendment would not exempt the discrimina­
tion from Title V II.

1. Exception (iv) to the Equal Pay Act: The first 
three exceptions to the Equal Pay Act authorize w&ge 
disparties based on seniority, merit, and productivity * 1

38While ordinarily the Court could expect to be aided in making 
this determination by administrative practice, the agency regula­
tions and guidelines applicable to this case are an internally con­
tradictory morass, unhelpful to a decision on the pertinent ques­
tions. The Department of Labor’s regulations simultaneously state:
(1) that it is not clear that contributions to employee benefit 
funds such as this one are covered by the Equal Pay^Act at all 
(29 C.F.R. §800.113); (2) that, perhaps, such plans are covered, 
but they are valid if the cost to the employer is equal for each 
sex even if benefits are not (29 C.F.R. §800.116(d)) ; (3) that it 
is, in general, not permissible under the Equal Pay Act for an 
employer to pay lower benefits (“wages”) to members of one 
sex than members of another sex because of higher costs incurred 
on behalf of that sex as a group (29 C.F.R. §800.151); (4) that 
any wage differential is invalid under the Act if gender plays 
any part in its rationale (29 C.F.R. §800.142). And, to add to 
the confusion, the Department of Labor maintained in its brief 
amicus curiae in the court of appeals that in this case the Equal 
Pay Act was violated, but that if the employer had paid women 
lower benefits instead of requiring unequal employee contribu­
tions, it would not. have been.

The EEOC, on the other hand, maintains unambiguously that 
only an equal benefits approach is permitted. 29 C.F.R. §1604.9. 
Since the two agencies whose interpretations are pertinent seem 
to disagree, and since at least one of those agencies does not even 
have an internally consistent approach, the best course, we 
believe, is for the Court to disregard all of the administrative 
interpretations and undertake the task of construction directly.

729



54

and do not apply to this ease. 29 U.S.C. §206 (d). 
Petitioners and their insurance supporters rely on the 
fourth, which permits disparities “based on any other 
factor other than sex.” Id. By its very terms, however, 
exception (iv) does not apply to policies such as the 
one at issue here that are based on overt gender-based 
discrimination: overt discrimination is necessarily dis­
crimination based on sex, not on a “factor other than 
sex.”

Petitioners' maintain, however, that exception (iv) 
must encompass policies that are not facially neutral 
but that correlate in a statistically significant fashion 
with one gender or another. Their argument is that 
if an employer does not intend to treat women and 
men differently, no discrimination “on the basis of 
sex” would exist, and an affirmative defense based 
on facially neutral principles would be unnecessary. 
Thus, petitioners contend, unless their view is ac­
cepted, exception (iv) would be meaningless.

This argument is belied not only by the common 
sense notion that a. “factor other than sex” cannot 
be “femaleness” or “maleness,” but also by the struc­
ture of the Equal Pay Act and its legislative history. 
The Act does not simply proscribe discrimination “on 
the basis of sex” ; it explicitly defines that concept as: 

“paying wages to employees of one sex . . . at a 
rate less than the rate at which, he pays wages 
to employees of the opposite sex.”

29 U.S.C. § 206 (d).

The plain words of the statute make it an offense 
to pay a woman employee in a particular job less

730



55

than a male employee in the same job, unless there 
is an explanation based, on seniority, merit, produc­
tivity, or “any other factor other than sex.” Even 
without an announced policy or conscious decision to 
differentiate on the basis of sex, then, an employer 
violates the Equal Pay Act when he pays men and 
women in the same job different wages and has no 
explanation for the disparity “other than sex.” Thus, 
the Equal Pay Act, like Title V II, not only prohibits 
explicit gender-based discrimination, but also provides 
that showing a gender-linked effect, or, in Title V II 
terms, a “disparate impact,” suffices to make out a 
prima facie case and to shift the burden to the em­
ployer39 to provide a non-gender-based reason for the 
disparity.

A hypothetical example of a “disparate impact” 
case concerning wage disparities in the pension con­
text illustrates the point: I f  the contribution of in­
dividual employees were tied not to the employee’s 
sex as in the present ease, but rather to sex-neutral 
factors (e.g., age, family history, health, smoking 
habits), and if those with higher risks and hence 
higher contributions nonetheless turned out to be 
entirely or primarily women, the employer would be 
confronted with a prima facie case of gender dis­
crimination premised upon “disparate impact.” In  
that event, exception (iv) would provide him with 
the defense that, the wage differential was based on

39Under the Equal Pay Act, once it is shown that employees 
of one sex are paid at a different rate than employees of the 
other, “the burden shifts to the employer to show that the dif­
ferential is justified under one of the Act’s four exceptions.” See 
Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974).

731



56

“factor[s] other than sex,” namely the sex-neutral 
criteria set forth above.

Both the legislative history of the Equal Pay Act 
and the Labor Department's implementing regulations 
are consistent with our view of the statute in general, 
and of the role of exception (iv) in particular. The 
House Committee Report closely ties exception (iv) 
to the other three, more specific sex-neutral exceptions: 

“As it is impossible to list each and every excep­
tion, the broad general exclusion has been also 
included. Thus, among other things, shift differ­
entials, restrictions on or differences based on 
t ime of day worked, hours of work, lifting or 
moving heavy objects, differences based on ex­
perience, training, or ability would also be ex­
cluded.”

H. Rep. No. 309, supra, at 3.

The Labor Department offers the following additional 
examples of factors that would justify wage differ­
entials : “incentive payments . . . longevity raises . . . 
temporary assignments . . . training programs . . . 
temporary and part-time employees.” 29 C.P.R. 
§§ 800.145-800.150. These exception (iv) factors, and 
exceptions (i), (ii), and (iii), all share the character­
istic of being sex-neutral, and they differ on that 
ground from the factors cited by petitioners in the 
present case as reasons for their gender-based dispar­
ity in employee pension contributions.10

4029 C.F.R. §800.142 provides:
“Sex must not be a factor in excepted wage differentials. 
While differentials in the payment of wages are permitted 
when it can be shown that they are based on a seniority

732



57

Thus, Congress intended exception (iv) to the 
Equal Pay Act to include only sex-neutral factors, 
find it has consistently been interpreted in this man­
ner. Many “factors other than sex” are encompassed 
within exception (iv) as thus interpreted, and peti­
tioners’ argument that only their strained construc­
tion of the language of the Act gives it any meaning 
is therefore without merit.

2. Legislative intent as to pension plans: While 
the Congressional purpose with respect to the general 
role of exception (iv) is quite clear, the legislative 
history upon the precise question of explicit gender- 
based differences in employee pension plans is sparse.

The only statements concerning sex-differences in 
employee benefit programs contemporaneous with the 
passage of the Equal Pay Act occurred in the context 
of a larger dispute not directly relevant here, concern­
ing whether to regard generally higher costs of 
employing women as a “factor other than sex” justify­
ing wage differentials. Petitioners and their support­
ers argue, citing carefully selected passages from the 
Senate Report and House floor debate on this question, 
that the Congress specifically intended to allow dis­
parities in pension contributions under exception (iv).

system, a merit system, a system measuring earnings by 
quantity or quality of production, or on any other factor 
other than sex, the requirements for such an exception are 
not met unless the factor of sex provides no part of the 
basis for the wage diiferential.” (emphasis added).

This view, it appears to us, was accepted in Corning Glass 
Works, supra, where the Court held that even a shift differential 
is not a “factor other than sex” if, at the outset, women were 
barred from the higher paying shift.

733



58

See Pet. Br., at 16-17; TIAA Br., at 34; Life Ins. 
Council Br., at 41. When these passages are read in 
their original context, it is clear that Congress reached 
the opposite conclusion.

For example, after quoting the Senate Report’s 
comment that “some employees stated that the cost of 
their pension and welfare plans were higher for 
women than men . . . because of the longer life span 
of women in pension benefits,” (TIAA Br., at 34), 
TIAA concludes: “the Report then stated that such 
differences in cost would constitute a factor other than 
sex justifying a differential in wages.” Id. When the 
quotation is read in context, however, we learn that 
the Committee rejected the notion that higher pension 
costs for women alone would justify a disparity. The 
Committee addressed the employers’ concerns as fol­
lows :

“This question of added cost resulting from 
the employment of women is one that can be only 
answered by an ad hoc investigation. Evidence 
was presented to indicate that while there may 
be alleged added costs, these were more than 
compensated for by the higher productivity of 
women against men performing the same work 
and that the overall result for the employer was 
a lesser production cost than would result from 
the hiring of only men. Furthermore, questions 
can legitimately be raised as to the accuracy of 
defining such costs as pension and welfare pay­
ments as related to sex. I t  has been pointed out 
that the higher susceptibility of men to disabling 
injury can result in a greater cost to the em-

734



59

plover, and that these figures as to health and 
welfare costs can only be applied plantwide. I t  
may be that it is more expensive to hire women 
in one department but it is more expensive to 
hire men in another, and overall cost figures may 
demonstrate conclusively that the employer has 
made a sound decision to hire women and pay 
them on an equal basis.

I t  is the intention of the committee that where 
it can be shown that on the basis of all of the 
elements of the employment costs of both men 
and women, an employer will be economically 
penalized by the elimination of a wage differ­
ential, the Secretary can permit an execption 
similar to those he can permit for a bona fide 
seniority system or other exception mentioned 
above.”

S. Rep. No. 176, 88th Cong. 1st Sess. 4 (1963) 
(emphasis added).

Similarly, petitioners and the American Council 
of l i f e  Insurance rely on remarks made by Repre­
sentative Goodell and Thompson as confirmation of 
their view that Congress intended to allow pension 
discrimination because of the higher cost of providing 
such coverage for women. Pet. Br., at 17; Life Ins. 
Council Br., at 41. As in the case of the Senate 
Report, however, the context of the two Representa­
tives’ remarks makes clear that their position was 
that, for costs to be considered an exception (iv) 
factor, the employer would have to analyze all costs, 
not just pension costs, and compare any overall cost

735



60

differential with possible differences in productivity. 
See 109 Cong-. Rec. 9206-9208.41

The one other bit of legislative history on the ques­
tion of gender-based disparities under the Equal Pay 
Act in employee benefit programs is a comment by 
Senator Humphrey following the passage of the Ben­
nett Amendment. At that time, a year after the 
passage of the Equal Pay Act, Senator Humphrey 
stated in response to a question by Senator Randolph 
that “differences of treatment in industrial benefit

41The Labor Department’s view, which, we agree is the only- 
sensible interpretation of the Act, is that the legislative history, 
when taken as a whole (see H. Eep. No. 309, supra), does not 
recognize even aggregate cost differentials between men and 
women as an exception (iv) justification. See 29 C.F.R. §800.151. 
This regulation on the subject convincingly points out:

To group employees solely on the basis of sex for purpose 
of comparison of costs necessarily rests on the assumption 
that the sex factor alone may justify the wage differential— 
an assumption plainly contrary to the terms and purposes 
of the Equal Pay Act. Wage differentials so based would 
serve only to perpetuate and promote the very discrimina­
tion at which the Act is directed, because in any grouping 
by sex of the employees to which the cost data relates, the 
group cost experience is necessarily assessed against an 
individual of one sex without regard to whether it costs an 
employer more or less to employ such individual than a 
particular individual of the opposite sex. . . .  Id.

But the dispute regarding the aggregate cost issue is not here 
relevant. For, under either view, petitioners have failed to pro­
vide satisfactory justification for their use of gender in deter­
mining employee pension contributions: they have neither at­
tempted to provide a sex-neutral rationale, nor have they produced 
any evidence that the pension disparity resulted from a detailed 
cost and productivity study that found that, in the absence of 
the disparity, the Department would incur higher overall costs 
in employing women. Indeed, the UAW and the AFL-CIO 
affiliates have found that the overall cost of employing men is 
usually higher than the cost of employing women, due to such 
factors as greater numbers of dependents for fringe benefit 
purposes, more expensive life insurance, and greater numbers 
of work-related disabilities.

736



61

plans, including earlier retirement options for women” 
were permissible under the Equal Pay Act. 110 Cong. 
Rec. 13663-64 (1964) (emphasis added). With due 
respect for Senator Humphrey, who surely ranks 
among the outstanding legislators to serve in the 
United States Senate, his comment reflects a mis­
understanding of the Equal Pay Act. That Act deals 
only with wage discrimination; it has nothing to do 
with such matters as “early retirement options for 
women.” See 29 U.S.C. § 206(d).

The Senator’s inaccurate recollection of the Equal 
Pay Act is more easily understood when we remember 
that Senator Randolph questioned him in his role as 
“effective manager of the pending bill” (Title V II) , 
one on which he clearly had special expertise. 110 
Cong. Rec. 13663-64. Yet the question concerned an 
interpretation of the Equal Pay Act, not Title V II. 
His comments on the coverage of the Equal Pay Act 
cannot be construed as part of its legislative history. 
And, since the Bennett Amendment simply incorpo­
rates the Equal Pay Act, it is the intent of Congress 
when it passed that Act that must control.

42Two additional points concerning Senator Humphrey’s remarks 
deserve mention. First, it appears from the examples given by 
Senator Randolph that Senator Humphrey understood the 
Senator to be referring to employment policies that accorded 
women special protections, such as the choice of early retirement, 
not policies that cause a women to receive lower wages for equal 
work. Second, just last term in Califcmo v. Goldfarb, 430 U.S. 
199 (1977), this Court found unconstitutional the Social Security 
Act’s differential treatment of widows’ and widowers’ benefits, 
another of the examples included in the Randolph-Humphrey 
colloquy. 110 Cong. Rec. 13663-64. (1964).

737



62

Thus, Section 703(h) of Title V II, the only defense 
possibly pertinent here is, upon analysis, not applic­
able. Even if pension contributions and benefits are, 
as we contend they are not, within the scope of the 
Equal Pay Act, the overt gender-based disparity in 
the Department’s pension plan is not authorized by 
that Act and therefore is not exempted from Title V II 
by the Bennett Amendment.

For the reasons stated above, the judgment of the 
court of appeals should be affirmed.

Dated, December 21, 1977.

CONCLUSION

Respectfully submitted,
J .  A l b e r t  W o l l  
R o b er t  C . M a y e r

J o h n  A . F il l io n  
A n n e  M . T r e b il c o c k

M a r s h a  S . B er zo n 8000 East Jefferson Avenue 
Detroit, Michigan 48214736 Bowen Building

815-15th Street, N.W. 
Washington, D.C. 20005 S t e p h e n  P . B er zo n  

F r ed  H . A l t s h u l e r
L a u r e n c e  G old

815-16th Street, N.W. 
Washington, D.C. 20006

San Francisco, California 94108
I 77 Post Street

Attorneys for JJAW
Attorneys for AFL-CIO

(Appendix Follows)

738



Appendix

C o n g r ess  o f  t h e  U n it e d  S t a t e s , 

H o u se  o f  R e p r e s e n t a t iv e s , 

Washington, D.C., June 8, 1970.
H o n . C a r l  D . P e r k i n s ,

House of Representatives,
Washington, D.C.

D e a r  C o l l e a g u e  : I t  is ironic and tragic that; a bill 
designed to strengthen the law against discrimination 
in employment should be perverted and distorted into 
a vehicle which, although initially designated to in­
crease and perpetuate discrimination on the basis of 
sex, actually will authorize discrimination on the 
basis of race, color, religion and national origin, as 
well as sex.

Yet that is exactly what would happen under the 
amendment which Congressman Marvin L. Esch spon­
sored, and which the General Labor Subcommittee 
included, in the bill recommended to the House Edu­
cation and Labor Committee—H.R. 17555, the “Equal 
Employment Opportunities Enforcement Act,” to re­
vise Title V II of the Civil Rights Act of 1964.

The Esch amendment would permit any employer 
to discriminate between employees in connection with 
pension and retirement plans, “notwithstanding any 
other provisions” of Title V II, and thus to do so on 
the basis of “race, color, religion, sex, or national 
origin.”

The effect of his amendment is so startling that it 
is hard to believe it. Yet that is precisely what the

739



11

Esch amendment says. I t  thus simply repeals Title 
Y II so far as concerns pension and retirement plans.

This matter I  call to your attention in the hope 
that you, as a member of the Education and Labor 
Committee, will vote against the Esch amendment 
when the Committee considers H.R. 17555, which I  
understand will be in the next few days.

Title Y II of the 1964 Civil Rights Act was a great 
milestone in the national effort to eliminate irrational 
bias in employment. I t  makes it unlawful for any 
employer “to discriminate against any individual” on 
the basis of race, color, religion, sex or national origin 
with respect to “compensation, terms, conditions, or 
privileges of employment.” The employee’s option to 
retire at a certain age is clearly a “privilege” of em­
ployment, and the terms and benefits of a retirement 
plan are certainly derived from the employment re­
lationship'. Therefore, Title Y II plainly prohibits 
discrimination with regard to pension and retirement 
plans on the basis of race, color, religion, sex, or 
national origin. Since the same language of Title Y II 
applies to race discrimination as to sex discrimination, 
it is clear that both race and sex discrimination are 
not permissible with respect to pensions and retire­
ment plans.

The Esch amendment stems from the fact that the 
Equal Employment Opportunity Commission, acting 
pursuant to the historic mandate of Title Y II, issued 
Guidelines on sex discrimination in February 1968 
(33 F.R. 3344; 29 C.F.R. 1604.31) stating that a “dif-

740



iii

ferenee in optional or compulsory retirement ages 
based on sex violates Title V II.” These Guidelines 
were issued after extensive consideration by EEOC 
for over two years, plus comprehensive public hear­
ings held in May 1967. The Commission also said 
that it would later rule (but it is still studying) 
whether other sex differences in pension and retire­
ment plans, such as differences in annuity computa­
tions, benefits to survivors, etc., are valid under the 
equality mandate of Title V II.

The Bell Telephone companies, the principal lobby­
ists for the Esch amendment, have persistently sought 
to obtain legislative repeal of the EEOC ruling. They 
seek the amendment in order to retain their present 
pension and retirement systems, which discriminate 
in different aspects, against not only their women em­
ployees but also their male employees. This is but 
another example of sex discrimination by the tele­
phone companies which have long relegated women 
to the lesser paid jobs in the communication indus­
try. Telephone companies are defendants in some of 
the most significant court suits by their women em­
ployees protesting employment discrimination based 
on sex. Both the courts and the EEOC have repeatedly 
ruled against the telephone companies in sex discrim­
ination cases. For example, Weeks v. Southern Bell 
Tel. & Tel. Co., 408 F. 2d 228 (CA 5, 1969); Cheat- 
wood v. South Central Bell Tel. & Tel. Co., 303 
F. Supp. 754 (E.D. Ala. 1969) ; Tuten v. Southern 
Bell Tel. Co., 2 F E P  Cases 299 (M.D. Fla. 1969).

741



iv

The Esch amendment is copied from the language 
proposed by the Bell Telephone companies which 
would legislatively sanction many types of sex dis­
crimination, including such matters as optional retire­
ment age, the age and employment tenure required 
for participation in pension plans, survivorship bene­
fits, computation of amount of the pension, the date 
and conditions' under which rights to annuities become 
vested, and other aspects of pension and retirement 
plans. However, the Esch amendment inexplicably 
omits the words “male” and “female”, perhaps in 
order to obfuscate and veil its effect, and thus 
broadens it from a vehicle of sex discrimination to 
one which permits discrimination on the basis of race, 
color, religion, and national origin, as well as sex.

I t  is inconceivable to me that the Congress would 
adopt a provision which would sanction race discrim­
ination in pension and retirement plans. Indeed, I  am 
astonished that the Esch amendment is drafted so 
broadly, since the Bell Telephone companies lobbyists 
for this amendment have heretofore explicitly re­
quested legislation to permit such discrimination only 
on the basis of sex. But even if the Committee amends 
the Esch amendment to restrict it to sex discrimina­
tion, it would still be contrary to our national policy 
of nondiscrimination and should not be adopted.

For vour convenience I  have: prepared the attached 
analysis detailing some of the specific defects of the 
Esch amendment, with particular emphasis on its sex 
discrimination features. I  hope you will read it before

742



V

you vote on H.R. 17555, and that it will persuade 
you to vote against the amendment, in its entirety.

W ith warm regards.
Sincerely yours,

Ma r t h a  W. G r i f f it h s ,

Member of Congress.

A n a l y s is  b y  Martha W. Gr iffith s  Concerning the 
E sch A mendment to H.R. 17555 (91st Cong.)—  
T h e  “E qual E mployment Opportunities E nforce­
ment A ct”—To P ermit R acial and S e x  D iscrimi­
n a t io n  in  P ension and R etirement P lans

The amendment sponsored by Congressman Marvin 
L. Esch to H.R. 17555, now pending in the House 
Committee on Education and Labor, would add the 
following new subsection to section 703 of Title Y II 
of the Civil Rights Act of 1964:

“ (k) Notwithstanding any other provision of this 
title, it shall not be an unlawful employment practice 
to observe a pension or retirement plan, the terms 
or conditions of which permit but do not require cer­
tain employees to retire at earlier ages than other 
employees, or provide for other reasonable differentia­
tion between employees, provided that such pension 
or retirement plan is not merely a subterfuge to evade 
the purposes of this title.”

Title Y II prohibits discrimination concerning “com­
pensation, terns, conditions, or privileges of employ­
ment” on the basis of “race, color, religion, sex, or

743



VI

national origin.” The Esch amendment permits dis­
crimination “notwithstanding any other provision” of 
Title V II. Hence, the Esch amendment would permit 
discrimination, in pension and retirement plans, on 
the basis which Title V II prohibits, namely, race, 
color, religion, sex, or national origin.

Although the Esch amendment would apparently 
not sanction such discrimination in connection with 
compulsory retirement age, it would permit such dis­
crimination in many other aspects of pension and 
retirement plans1, including optional retirement age, 
the age required for participation in pension plans, 
survivorship benefits, computation of the amount of 
pension payments, the date and conditions under which 
lights to annuities become vested, and any other aspect 
which might be deemed a “reasonable differentiation 
between employees”. However, the Esch amendment 
contains no definition as to what is a “reasonable dif­
ferentiation” besides optional retirement age, and does 
not state any criteria by which to judge what dis­
crimination is “reasonable”. Hence, that phrase does 
not really limit the scope of the Esch amendment. 
Nor does the proviso that the pension plan should 
not. be “merely a subterfuge to evade” Title V II pro­
vide any real protection against such discrimination. 
I f  the plan contains any element besides that which 
is a “subterfuge,” the plan would then no longer be 
“merely” a subterfuge, even though it blatantly dis­
criminates on a basis by Title V II. This is not an idle 
fear, in view of the recent decision by the II.S. Court 
of Appeals for the Fifth  Circuit that sex discrimina­

744



vn

tion in employment is permissible if it is associated 
with another element not prohibited by Title V II. 
Phillips v. Martin Marietta C o r p 411 F. 2d 1; re­
hearing den., 416 F. 2d 1257 (C.A. 1969). The Su­
preme Court granted certiorari on March 2, 1970 
(No. 1058, Oct, Term, 1969), and will hear, and I 
hope reverse, that decision next fall.

Sometimes I  hear the argument made that sex dis­
tinctions in retirement ages are reasonable because of 
sex differences in actuarial mortality tables. Yes, 
women do live longer than men. When a man retires 
at 65, he will receive approximately 10 years of pen­
sion payments, while a woman who retires at 62 will 
receive approximately 20 years of such payments. I f  
any sex is entitled to an earlier optional retirement 
age privilege, it should be the male. Frankly, no sex 
differential is reasonable for retirement age, and the 
Esch. amendment would simply permit unwarranted 
discrimination based on sex.

There is no valid national need for the Esch 
amendment. Over 95 percent of all pension plans 
under collective bargaining reported pursuant to the 
Welfare and Pension Plans Disclosure Act contain 
no distinction between men and women workers. The 
other 5 percent contained sex differentials only as to 
the age required for participation in the pension plan 
or for retirement, (Incidentally, the pension plans' of 
the Bell Telephone companies, the principal lobbyists 
for the Esch amendment, affect the most employees.) 
Furthermore, industry at present rarely makes sex 
the basis for differences in the pensions paid to the

745



VU1

retired employee, or in the amount of credited service 
and earnings necessary to receive such benefits. Yet 
the Esch amendment would sanction and encourage 
sex discrimination in all of these aspects, and others, 
of pension and retirement plans, “notwithstanding 
any provision of Title V II.” In  trust, the Esch amend­
ment is so broad as to constitute virtually a blank 
check for sex discrimination in pension and retirement 
plans.

Heitheir the Federal Civil Service nor the Social 
Security retirement systems provide for different re­
tirement ages as between men and women, whether 
for compulsory retirement or for optional retirement. 
Both systems are totally devoid of sex discrimination, 
except for two aspects. One aspect, which will be 
abolished by the Social Security Amendments of 1970 
passed by the House on May 21, 1970 (H.R. 17550), 
concerns the difference in computing benefits for 
Social Security retirees under "which men retiring 
between ages 62 and 65 receive lower pensions than 
women retiring at such ages. The other aspect con­
cerns survivorship benefits, which are granted to a 
male employee’s' widow without requiring her to show 
that she was the employee’s dependent, but are not 
granted to a female employee’s widower unless he 
shows he was the employee’s dependent. This distinc­
tion is based on a concept of welfare, rather than 
compensation for work performed, and I  have intro- 
dueed bills to end this distinction and to put widowers 
and widows' on the same footing for survivorship 
benefits based on their spouse’s employment. I  believe

746



the dependency distinction between widows and 
widowers will eventually be abolished. In  any event, 
it does not justify the broad and virtually unlimited 
sex discrimination which the Eseh amendment would 
permit and encourage in all non-Federal pension and 
retirement plans.

Since the Federal Civil Service and Social Security 
retirement systems operate effectively without broad 
scale sex discrimination, I  see no reason why non- 
Federal pension and retirement plans cannot also 
operate effectively without sex discrimination.

There may be some women who would want to take 
advantage of an earlier optional retirement age than is 
available to their male colleagues. But their concern 
must be balanced against the fact that the disadvan­
tages of sex differentials in pension and retirement 
plans far outweigh that particular benefit. Permitting 
sex discrimination in relation to optional retirement 
will foster the continuation of discrimination now 
practiced against women who are able and desire to 
work beyond the optional retirement age. Experience 
has shown that where such earlier option exists, many 
employers deny promotion to qualified women on the 
ground that they may be retiring at an earlier age. 
In  addition, many employers also exert pressure on 
women to retire at the earlier age in order to replace 
them with younger women or men. The earlier op­
tional retirement age privilege is not an unalloyed 
benefit to women. Finally, with respect to the small 
group of women who are now near retirement age 
and who might have planned to retire under the op­

ix

747



X

tional privilege, it should be noted that the Equal 
Employment Opportunity Comission announced, on 
September 16, 1968, that it would construe the Guide­
lines on sex discrimination as permitting women work­
ers, who were then within 10 years of retirement age 
under existing retirement plans permitting optional 
retirement, to retain their right to exercise that op­
tion. That E.E.O.C. ruling certainly destroys any 
possible argument that the equality mandate of Title 
V II is unfair to any women having a sex discrimina­
tory preference under an existing retirement plan.

We should also consider the source of the argu­
ment that sex differentials in optional retirement ages 
favor women and, therefore, should not. be abandoned. 
That argument is not supported by the almost 200,000 
member National Federation of Business and Profes­
sional Women’s Clubs, a traditional protector of the 
rights of the working woman, or by the Citizen’s Ad­
visory Council on the Status of Women, or by the 
National Organization for Women whose goal is “full 
equality for women in truly equal partnership with 
men,” or by the National Woman’s Party  which has 
fought for women’s rights since the early 1900’s. On 
the contrary, the principal lobbyists for the Eseh 
amendment are the Bell Telephone companies who 
have long relegated women to the lesser paid jobs in 
the communications industry, and who fear that the 
elimination of sex differences in retirement age may 
result in earlier retirement for men, or longer service 
and increased credits for women, and thereby increase 
the companies’ pension costs. I  don’t  know why the

748



XI

Bell Telephone companies are worried about this, 
since the hearings before the Joint Economic Com­
mittee’s Subcommittee on Fiscal Policy, of which I  
am chairman, revealed that in 1966 those companies 
had over $5 billion in their pension trust funds and 
had never paid out one cent of the principal—all 
pensions are paid entirely from the interest earned 
by the trust funds. Hearings on Private Pension 
Plans, 89th Congress, P a rt One (May 2, 1966), pp. 
228, 235.

Furthermore, I  find it difficult to understand the 
reasoning that a system which discriminates in some 
ways against men rather than against women should, 
therefore, be continued. We in the Congress are 
elected by all the people, men and women, and it ill 
behooves us to discriminate against either men or 
women solely on the basis of sex. Indeed, I  resent the 
implication that women should be favored over men 
on the assumption that women are incapable of with­
standing unprotected the rigors of economic life and 
hence must be especially protected and favored by 
the law. Whatever validity that concept had five 
or six decades ago, it has none today. According to 
the 1969 Handbook on Women Workers published by 
the Department of Labor (Women’s Bureau Bulletin 
294), women head 11 percent of all families (page 28), 
and comprise 37 percent of our total labor force 16 
years of age and over (pages 9, 10, 22). Women are 
now certainly entitled to be rid of the “adult children” 
myth wdiich brands them as incapable of equal partici­
pation in our present economy. They are willing to

749



take their chances with equal privileges if society will 
but grant them equal opportunities.

Moreover, while the direct effect of an earlier retire­
ment age for women primarily discriminates against 
men, its indirect effect also discriminates against 
women,—namely, the wives nad families of male em­
ployees who are denied retirement age privileges 
available to female employees. Discrimination is a 
seamless web. I f  we permit it to exist against the in­
terests of one group, it will inevitably work against 
the interest of the other.

The Esch amendment has no place in a country ded­
icated to the proposition of equality of opportunity 
regardless of race, color, religion, sex, or national 
origin. I t  should be roundly rejected.

Thank you for permitting me to express my views 
on Section 805 of your bill, H.R. 16098. I  fully suport 
that section and wall work with you to obtain its en­
actment.

xn

Briefs Amici on behalf of the State of Oregon, City of New York,
New York State Teachers' Retirement System and the American Nurses’ 
Association were submitted but have not been reprinted.

750