Phillips v. Martin Marietta Corporation Brief Amicus Curiae

    No. 1058

the j&upreme dfottrt o f the U n ited  S ta te s
October Term, 1969

I da P hillips, petitioner

v.
M artin M arietta Corporation

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

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

E R W IN  N. G RISW OLD,
Solicitor General, 

JE R R IS  LEO N ARD ,
Assistant Attorney General, 

L A W R E N C E  G. W A L L A C E ,
Assistant to the Solicitor General, 
RO BE RT T. MOORE,

Attorney,
Department of Justice, 

Washington, D.C. 205S0.
ST A N L E Y  P. H E B E R T,

General Counsel,
Equal Employment Opportunity Commission,

Washington, D.C. 20506.



Jtt the Supreme Qkurt of the tim id States
October Term, 1969

No. 1058

I da P hillips, petitioner 
v.

M artin M arietta Corporation

ON PETITION FOlt A WRIT OF CERTIORARI TO THE UNITED 
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion o f the court of appeals (Pet. App. 
4 a -lla ) is reported at 411 F.2d 1. That court’s denial 
of rehearing and rehearing en banc, with three judges 
dissenting (Pet. App. 12a-21a), is reported at 416 F.2d 
1257. The opinion o f the district court (Pet App. la -  
3a) is not reported.

JU RISD IC TIO N

The judgment of the court of appeals was entered 
on May 26, 1969. A  timely petition for rehearing was 
denied on October 13, 1969. The petition for certi­
orari was filed on January 10, 1970. The jurisdiction 
of this Court is invoked under 28 U.S.C. 1254(1).

(i)



2

QUESTION PRESENTED

Whether, under Title Y II  of the Civil Rights Act 
o f 1964, an employer may, in the absence o f business 
necessity, refuse to hire women with pre-school age 
children while hiring men with such children.

STATU TE IN V O LV ED

Title Y II  of the Civil Rights Act of 1964 provides 
in pertinent part:

42 U.S.C. 2000e-2
(a) 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 com­
pensation, terms, conditions, or privileges of 
employment, because o f such individual’s race, 
color, religion, sex, or national origin * * *.

(e) Notwithstanding any other provision of 
this title (1) it shall not be an unlawful em­
ployment practice for any employer to hire and 
employ employees, * * * on the basis of his 
religion, sex, or national origin in those certain 
instances where religion, sex, or national origin 
is a bona fide occupational qualification reason­
ably necessary to the normal operation o f that 
particular business or enterprise * * *.

IN T E R E ST  OF T H E  U N ITED  STATES

Title Y II  of the Civil Rights Act of 1964 prohibits 
discrimination in employment based on sex. Under the 
Act, Congress has entrusted the United States Equal 
Employment Opportunity Commission and the At­



3

torney General with important responsibilities for 
obtaining compliance with the requirements of Title 
V II. The court o f appeals’ restricted interpretation 
o f this important statutory mandate, if  permitted to 
stand, will cause unwarranted hardship to families in 
which the mother is the only available breadwinner.1 
Moreover, the rationale of the decision below, if  ap­
plied to the other prohibitions of Title V II  against 
employment discrimination based on race, color, 
religion or national origin, would comprehensively 
impede the government’s efforts to insure equality of 
employment opportunities for all residents o f the 
United States.

STATEM EN T

Solely because she was a woman with pre-school 
age children, the petitioner was denied employment 
as an assembly-trainee by the respondent corporation, 
which employs men with such children as assembly- 
trainees (Pet. App. 2a). She complained that this 
constituted discrimination on the basis o f sex in vio­
lation of Title V II  o f the Civil Rights Act o f 1964.

The district court eliminated the essence o f peti­
tioner’s complaint by striking the portion alleging 
discrimination based on the fact that she had pre­
school age children, on the ground that Title V II  did 
not prohibit such discrimination. The court then

1 As principal financial contributor to the Aid to Families 
with Dependent Children Program administered by the States 
under the Social Security Act (as well as in its role as tax col­
lector), the United States also has a fiscal interest in the issues 
involved in this litigation. See King v. Smith, 392 U .S. 309; 
Lewis v. Martin, No. 829, this Term.



4

granted respondent’s motion for summary judgment, 
based on an uncontroverted showing that a larger per­
centage of the women, as compared with the men, who 
applied for the job of assembly-trainee were hired.

The court of appeals affirmed, stating (Pet. 
App. 9a-10a):

* * * evidence presented in the trial court 
is quite convincing that no discrimination against 
women as a whole or the appellant individually 
was practiced by Martin Marietta. The dis­
crimination was based on a two-pronged quali­
fication, i.e., a woman with pre-school age 
children. Ida Phillips was not refused employ­
ment because she was a woman nor because she 
had pre-school age children. It is the coales­
cence o f these two elements that denied her the 
position she desired.

A  petition for rehearing was denied, with three 
judges dissenting from the denial o f rehearing en 
banc.

SEASON S FOR G R A N T IN G  TH E W R IT

The decision below directly affects a substantial 
number of women in the labor m arket2 and condones 
discrimination against them in contravention o f the 
federal policy o f encouraging unemployed women with 
pre-school age children to seek gainful employment 
as an alternative to welfare payments.3

2 In March 1967, there were 10.6 million working women 
with children under 18 years of age. O f this number, 38.9 per­
cent, or 4.1 million, were mothers with children under 6 years 
of age. “W ho Are The Working Mothers?” U.S. Dept, of 
Labor, Wage and Hour Adm. (Leaflet 37, 1968).

3 See, e.g., President Nixon’s Address to the Nation on Domestic



5

Moreover, application of the reasoning of the court 
of appeals to the Title V II  prohibitions against em­
ployment discrimination based on race, color, religion 
or national origin would have a severely limiting ef­
fect. For example, a practice of refusing to hire 
Negroes with pre-school children while hiring whites 
with such children would apparently come within the 
rationale of the decision below that:

[w]hen another criterion o f employment is 
added to one of the classifications listed in the 
Act, there is no longer apparent discrimination 
based solely on race, color, religion, sex, or 
national origin [411 F.2d at 3^4].

Nothing in the record o f the present case indicates 
that the respondent’s policy of excluding women with 
pre-school age children from employment was based 
on any legitimate business interest related to the 
ability of such women to perform the work, or to the 
safety or efficiency of the respondent’s business opera­
tions. Specifically, there was no showing that such

Programs, Weekly Compilation of Presidential Documents, Yol. 5, 
No. 32, August 11,1969, p. 1108:

A s I  mentioned previously, greatly expanded day-care cen­
ter facilities would be provided for the children of welfare 
mothers who choose to work. However, these would be day­
care centers with a difference. There is no single idea to 
which this administration is more firmly committed than 
to the enriching of a child's first 5 years of life, and 
thus helping lift the poor out of misery, at a time when a 
lift can help the most. Therefore, these day-care centers 
would offer more than custodial care; they would also be 
devoted to the development of vigorous young minds and 
bodies. As a further dividend, the day-care centers would 
offer employment to many welfare mothers themselves.



6

women had a higher than average absentee rate, that 
they could not work necessary overtime, or that they 
had any other attribute which limited their utility 
to the respondent. Much less was there a showing 
that all women with pre-school age children were 
unable to perform adequately.

The courts below, therefore, did not rely on any 
overriding “ business necessity,” 4 nor on the stat­
utory exception for a “ bona fide occupational quali­
fication,” 5 in holding that the respondent’s policy did 
not violate Title V II. Instead, the court of appeals’ 
holding is explicitly based on a construction of the 
statute which condones discrimination based on sex 
so long as there is an additional, apparently neutral, 
reason for the otherwise unlawful employment 
practice.

This holding contravenes the plain language of 
Section 703, which makes it an “ unlawful employ­
ment practice for an employer * * * to discriminate 
against any individual with respect to his * * * 
terms [or] conditions * * * of employment, because of 
such individual’s race, color, religion, sex, or national 
origin * * To require of prospective women em­

4 See Local 53, Asbestos Workers v. Vogler, 407 F.2cl 1047 
(G.A. 5) ; Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (C .A. 5).

= Section 703(e) (1 ), 42 U.S.C. 2000e-2(e) (1 ), supra, p. 2.



7

ployees that they not have pre-school age children, 
while not requiring the same of men, is to discrimi­
nate against women on the basis o f their sex in the 
“ terms”  or “ conditions”  under which they will be 
employed. The fact that some women, even if the 
number is substantial, have met this “ term” or “ con­
dition”  does not eliminate the disparate treatment 
received by those women who do not meet this quali­
fication which is not required o f men.

Where, as here, a qualification is imposed solely on 
applicants o f one sex, it violates the statute unless 
the employer can justify such discrimination as a 
“ bona fide occupational qualification”  or business neces­
sity.® This is the essence o f the congressional mandate. 
In departing from that mandate, the decision below has 
denied the statute’s protection to a category of em­
ployment applicants who are among those most in 
need of that protection.

6 See, generally, Bowe v. Colgate-Palmolive Co., 416 F.2d 
711 (C.A. 7 ) ;  Weeks v. Southern Bell Telephone Co., 408 F.2d 
228 (C .A. 5 ) ;  Rosenfeld v. Southern Pacific Co., 293 F. Supp. 
1219 (C.D. C a lif.); cf. Lane v. Wilson, 307 U.S. 268; Louisi­
ana v. United States, 380 U .S. 145; Gaston Cou/nty v. United 
States, 395 U .S. 285; United States v. Slieetmetcd Workers, 416 
F.2d 123 (C .A . 8). And see the Equal Employment Oppor­
tunity Commission’s regulations implementing Title V II  at 29 
C.F.R. 1604.1-1604.3. See, also, cases cited in n. 4, supra.



8
CONCLUSION

It is therefore respectfully submitted that the peti­
tion for a writ o f certiorari should be granted.

E rw in  N. Griswold,
Solicitor General. 

Jerris Leonard,
Assistant Attorney General. 

L awrence G. W allace, 
Assistant to the Solicitor General. 

R obert T. M oore,
Attorney.

Stanley P. H ebert,
General Counsel,

Equal Employment
Opportunity Commission.

F ebruary 1970.

U.S .  GOVERNMENT PRINTING OFFICE:  1970



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