Phillips v. Martin Marietta Corporation Brief for Petitioner

    I n  the

(Eourt of %  Unttoxi &tataa
October Term, 1969 

No. 1058

Ida P hillips,
Petitioner,

—v.—

M artin M arietta Corporation,
Respondent.

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

BRIEF FOR PETITIONER

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

10 Columbus Circle 
New York, New York 10019

E arl M. Johnson

625 West Union Street 
Jacksonville, Florida 32202

George Cooper 
Christopher Clancy

401 West 117th Street 
New York, New York 10026

Attorneys for Petitioner



I N D E X

Citations to Opinions Below ..........................................  1

Jurisdiction .........................................................................  1

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

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

Statement .............................................................................  3

A rgument—

It Is a Violation of the Sex Discrimination Pro­
hibition in Title VII, Civil Bights Act of 1964, 
to Refuse to Hire Women With Pre-School Chil­
dren While Hiring Men of the Same Class ...........  5

Conclusion .....................................................................................  17

T able of A uthorities

Cases:

Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 
1969) .................................................................................  8

Cooper v. Delta Airlines, Inc., 274 F. Supp. 781 (E.D.
La. 1967) appeal dismissed, No. 25,698 (5th Cir.
1968) .................................................................................  8

Cox v. U.S. Gypsum Co., 284 F. Supp. 74, 78 (N.D.
Ind. 1968), aff’d as modified, 409 F.2d 289 (7th 
Cir. 1969) .........................................................................  14

PAGE



11

Fawcus Machine Co. v. United States, 282 U.S. 375,
378 (1931) .........................................................................  14

FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385
(1965) .............................................................................14) 15

FTC v. Mandel Bros., 359 U.S. 385, 391 (1959) ........... 14

Int’l Chem. Workers v. Planters Mfg. Co., 259 F. Supp.
365, 366-67 (N.D. Miss. 1966) ..................................... 14

Lansdale v. United Airlines, 62 Lab. Cas. H9417 (S.D.
Fla. 1969) .........................................................................  11

Local 53, International Association of Heat & Frost 
Insulators and Asbestos Workers v. Vogler, 407 F.
2d 1047 (5th Cir. 1969) ................................................ 7, 9

Local 189, United Papermakers and Paperworkers v. 
United States, 416 F.2d 980 (5th Cir. 1969) ........... 7

Phillips v. Martin Marietta Corporation, 411 F.2d 1 
(5th Cir. 1969) ...............................................................  1

Schultz v. First Victoria National Bank, 420 F.2d 648
(5th Cir. 1969) .............................................................  8

Sprogis v. United Airlines, Inc., 62 Lab. Cas. U9399 
(N.D. Id. 1970) .............................................................  8,9

United States v. American Trucking Assn., 310 U.S.
534, 549 (1940) ...............................................................  14

United States v. Public Utilities Comm., 345 U.S. 295,
314-15 (1953) .................................................................  14

United States v. Sheet Metal Workers, Local 36, 416
F.2d 135 (8th Cir. 1969) ..............................................7,12

Udall v. Tallman, 380 U.S. 1, 16 (1965) ....................... 14

Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 
(5th Cir. 1969) ..............................................................8,10

PAGE



I l l

Statutes :

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

42 U.S.C. §2000e-2(a) (§703(a)) ......................................  2,3

42 U.S.C. §2000e-2(e) (§703(e)) ....................................  2

Miscellaneous:

Cooper and Sobol, Seniority and Testing Under Fair 
Employment Laws: A General Approach to Objec­
tive Criteria of Hiring and Promotion, 82 Harv. L.
Rev. 1598 (1969) .........................................................  9

Equal Employment Opportunity Commission Sex 
Discrimination Guidelines, 29 C.F.R. §1604.1 (a), 
§§1604.2, 1604.3 (1968) .................................................. 10

EEOC Decision, Dodd v. American Airlines, Inc. Case
No. 6-6-5762, reported in CCH Employment Prac­
tices Guide TT1210.522 (June 20, 1968) .......................  8

House Rep. No. 570, at H.R. 405, 88th Cong., 1st Sess. 
(1963) ...............................................................................  16

Rosenfeld and Perrella, Why Women Start and Stop 
Working: A  Study in Mobility, Monthly Labor Re­
view (Sept., 1965) .......................................................... 12

Ross and Hill, eds. Employment, Race and Poverty 
(1967) ...............................................................................  13

U.S. Dept, of Labor, Women’s Bureau, Background 
Facts on Women Workers in the United States

PAGE

U.S. Dept, of Labor, Women’s Bureau, Working 
Mothers and the Need for Child Care Services 
(June 1968) ..................................................................... 12



IV

U.S. Dept, of Labor, Women’s Bureau, Who Are the 
Working Mothers? Leaflet 37 (1968) ..........................  13

LT.S. Dept, of Labor, The Negro Family— The Case For 
National Action (March 1965) ..................................  13

U.S. Dept, of Labor, Bureau of Labor Statistics, Spe­
cial Labor Forces Report (1964) ................................  14

U.S. Dept, of Labor, Bureau of Labor Statistics, Em­
ployment and Earnings (May, 1963) ........................  14

110 Cong. Rec. 2566 (1964) .............................................. 16

110 Cong. Rec. 7213 (1964) .............................................. 10

PAGE



I n  the

^ujirrutr (Euml at tljr llniti'ii States
October Term, 1969 

No. 1058

Ida P hillips,

—v.—

M artin M arietta Corporation,

Petitioner,

Respondent.

on writ of certiorari to the united states

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

Citations to Opinions Below

The opinion of the District Court, not yet reported, is 
reprinted at pp. 22a-23a of the Appendix. The opinion 
of the U.S. Court of Appeals for the Fifth Circuit, re­
printed in the Appendix at pp. 30a-38a, is reported at 411 
F. 2d 1. The denial of rehearing and accompanying dissent 
of Chief Judge Brown and Judges Ainsworth and Simp­
son is reported at 416 F.2d 1257 (5th Cir. 1969), and is 
reprinted in the Appendix at pp. 42a-52a.



2

Jurisdiction

The judgment of the Court of Appeals for the Fifth Cir­
cuit was entered May 26, 1969. A  timely request for re­
hearing, initiated by a member of the Court, was denied 
October 13, 1969, and this petition for certiorari was filed 
January 10, 1970 and granted March 2, 1970 (A. 55a). The 
jurisdiction of this Court is invoked under 28 U.S.C. 
§1254(1).

Question Presented

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

Statutory Provisions Involved

United States Code, Title 42

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

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

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

(2) to limit, segregate, or classify his employees in any 
way which would deprive or tend to deprive any individual 
of employment opportunities or otherwise adversely affect 
his status as an employee, because of such individual’s race, 
color, religion, sex, or national origin.



3

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

(e) Notwithstanding any other provision of this title, 
(1) it shall not be an unlawful employment practice for an 
employer to hire and employ employees, for an employ­
ment agency to classify, or refer for employment any indi­
vidual, for a labor organization to classify its membership 
or to classify or refer for employment any individual, or 
for an employer, labor organization, or joint labor-manage­
ment committee controlling apprenticeship or other train­
ing or retraining programs to admit or employ any indi­
vidual in any such program on the basis of his religion, 
sex, or national origin in those certain instances where 
religion, sex, or national origin is a bona fide occupational 
qualification reasonably necessary to the normal operation 
of that particular business or enterprise, and (2) it shall 
not be an unlawful employment practice for a school, col­
lege, university or other educational institution or institu­
tion of learning to hire and employ employees of a partic­
ular religion if such school, college, university, or other 
educational institution or institution of learning is, in 
whole or in substantial part, owned, supported, controlled, 
or managed by a particular religion or by a particular re­
ligious corporation, association, or society, or if the curricu­
lum of such school, college, university, or other educational 
institution or institution of learning is directed toward the 
propagation of a particular religion.

Statement

On September 6, 1966 the petitioner, a woman with pre­
school age children, applied for a job as Assembly Trainee 
with the Martin Marietta Corporation, the respondent 
(hereinafter sometimes “the company” ) (A. 3a). Petitioner 
had a high school background, the only specified prerequi­
site for the job, but was told by respondent that applica­



4

tions from women with pre-school age children were not 
being considered (A. 4a, 16a, 17a).

On December 12, 1967, after properly proceeding through 
the EEOC, the petitioner filed suit claiming that respon­
dent’s actions constituted unlawful sex discrimination under 
the Civil Rights Act of 1964 (A. 6a). The Company’s 
policy of refusing to consider applications from women 
with pre-school children is apparently not applied to men 
in the same category. Pursuant to petitioner’s request for 
admission, the company admitted that it hires men with 
pre-school age children as Assembly Trainees (A. 21a-23a). 
The District Court struck the allegations in petitioner’s 
complaint regarding the pre-school children rule, as “ irrele­
vant and immaterial” and ruled for the company on sum­
mary judgment when she could introduce no other evidence 
of sex discrimination (A. 14a-15a, 22a-23a). The United 
States Court of Appeals for the Fifth Circuit affirmed the 
judgment of the district court on May 26, 1969, holding 
that this discrimination “based on a two-pronged qualifica­
tion, i.e., a woman with pre-school age children” was not 
discrimination because of sex within the meaning of the 
Act (A. 30a-38a). A  timely request for rehearing initiated 
by a member of the Court, was denied October 13, 1969, 
Chief Judge Brown and Judges Ainsworth and Simpson 
dissenting (A. 42a-52a).



5

ARGUMENT

It Is a Violation of the Sex Discrimination Prohibition 
in Title VII, Civil Rights Act of 1964, to Refuse to Hire 
Women with Pre-School Children While Hiring Men of 
the Same Class.

For reasons stated in greater detail below, the refusal 
of respondent to employ women with pre-school age chil­
dren constitutes discrimination based on sex and is pro­
scribed by Title VII of the Civil Rights Act of 1964.

1. The decision below is based upon an erroneous in­
terpretation of Title VII.

Title V II prohibits discrimination in employment based 
on sex. This is such a case. Title VII declares:

It shall be an unlawfulApracfice for an employer— 
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 individ­
ual’s race, color, religion, sex or national origin.
42 U.S.C. §2000e-2(a) [§703(a)]. (Emphasis added.)

Title VII of the Civil Rights Act of 1964 prohibits not only 
flat refusals to employ women. Where, as here, the respon­
dent hires men with pre-school children for one job and 
refuses to hire women with pre-school children for the same 
job, the respondent violates either that portion of Title 
VII which enjoins him from refusing to hire or that por­
tion which bars him from “otherwise” discriminating be­
cause of such individual’s sex. Insofar as the court below 
held that Title V II permitted such differentiation, it erred.

The District Court attempted to justify its decision by 
stating that:



6

The responsibilities of men and women with small chil­
dren are not the same, and employers are entitled to 
recognize these different responsibilities in establish­
ing hiring policies (A. 23a).

While it may be argmed that certain individual women (or, 
in equal measure, certain individual men) might have spe­
cial responsibilities toward young children that are relevant 
to the satisfactory performance of a job (e.g., where the 
care of such children prevents a woman from remaining on 
the job from nine to five), respondent does not pretend to 
relate its employment specifications to such responsibilities. 
The company will not hire women with pre-school children 
if there is a grandmother or older sister at home to care 
for them, or if a day care center fulfills that purpose. Nor 
will it hire women with pre-school children even if their 
husbands are at home unemployed (as often occurs because 
of lay-off or disability).1 Respondent will apparently hire 
widowers with pre-school children, but not widows. It will 
apparently hire men with pre-school children even if their 
wives are already employed elsewhere. Respondent’s rule 
makes no attempt to assess the role of family responsibility 
and its relevancy to employment in any objective way.

The Fifth Circuit, in holding that the respondent did not 
violate Title VII, took a slightly different tack:

The discrimination was based on a two-pronged quali­
fication, i.e., a women with pre-school age children. . . . 
It is the coalescence of these two elements that denied 
her the position she desired (A. 36a).

However, as Chief Judge Brown points out in his dissent to 
the denial of the petition for rehearing:

1 Studies show that 8 %  of working women have husbands who 
cannot work. Rosenfeld and Perrella, W h y Women Start and 
Stop W orking: A  Study in Mobility, Monthly Labor Review, 
Sept. 1965, at 1077.



7

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

It is the fact of the person being a mother—i.e., a 
woman—not the age of the children, which denies 
employment to a woman which is open to a man 
(A. 45a). (Emphasis added)

In short, the petitioner, because she is a mother—i.e., a 
woman—was denied employment. Title VII says this can 
no longer be done.2

Both courts adopted a discriminatory double standard 
rooted in traditional notions of the woman’s usual place at

2 The Court of Appeals also relied on data showing that respon­
dent had hired a high percentage of female assembly trainees 
(7 5 % -8 0 % ) as evidence of a lack of discrimination (A . 32a, 36a). 
This is beside the point, however. No particular percentage of 
female employees in itself shows a lack of discrimination. Such 
percentages are useful where a neutral practice (non-sex-related 
and non-race-related on its face) is being challenged because of 
its discriminatory impact. See Local 53, Heat & Frost Insulators 
Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969) (nepotism rule) ; 
Local 189, Papermakers and Paperworkers v. United States, 416
F.2d 980 (5th Cir. 1969), cert, denied, -------  U.S. -------  (1970)
(seniority ru le ); and United States v. Sheet Metal Workers, Local 
36, 416 F.2d 123 (8th Cir. 1969) (work referral rule). The Court 
of Appeals may have been misled by the approach taken in these 
neutral practice cases. Where, as here, however, the practice is not 
neutral, but is discriminatory on its face, statistics prove nothing. 
There are many reasons why there may be a high percentage of 
women in a job despite an employer’s application of a double 
standard as to them. The only relevant point is that the percentage 
of women presumably would and should have been higher had the 
employer operated under neutral standards rather than under a 
double standard which screened out a large group of women from  
eligibility for the job.



8

home and the man’s usual place at work. Respondent’s 
rule is a pure example of the “ subjective assumptions and 
traditional stereotyped misconceptions regarding the value 
of women’s work” 3 and the “ romantic paternalism” 4 which 
Title VII was designed to eliminate.

The unlawfulness of such double standards has been 
affirmed in numerous lower court decisions. In Sprogis v. 
United Air Lines, 62 Lab. Cas. fl 9399 (N.D. 111., Jan. 21, 
1970), the employer followed a policy of discharging female 
stewardesses who got married but not discharging male 
stewards under the same circumstances. The court held 
this double standard regarding marriage to violate Title 
VII.5 In Bowe v. Colgate-Palmolive Co., 416 F. 2d 711 (7th 
Cir. 1969), and Weeks v. Southern Bell Tel. and Tel., 408 
F.2d 228 (5th Cir. 1969), the employer refused to hire 
women for jobs requiring the lifting of moderate weights 
(35 pounds in Bowe and 30 pounds in Weeks) while not 
fixing a similar weight maximum for men. In both cases 
the courts held this double standard regarding weights to 
violate Title VII. Indeed, in the weight maximum cases it

3 Shultz v. First Victoria National Bank, 420 F.2d 648 (5th Cir. 
1969) (Equal Pay Act case).

4 Weeks v. Southern Bell Tel. and Tel. Co., 408 F.2d 228, 236 
(5th Cir. 1969).

5 Sprogis V. United Air Lines, discussed in text is to be dis­
tinguished from Cooper v. Delta A ir Lines, Inc., 274 F . Supp. 781 
(E .D . La. 1967), appeal dismissed, No. 25,698 (5th Cir. 1968), 
which was referred to in the opinion below. Cooper, like Sprogis, 
was an attack on the widespread airline policy of discharging 
stewardesses who get married. But in Cooper, unlike Sprogis, the 
airline employed no men in the stewardess category and therefore 
the policy had no adverse effect on women vis a vis men. Subse­
quent to the Cooper decision, the refusal to hire male stewards 
was ruled unlawful, thus setting the stage for the successful 
challenge in Sprogis. See Dodd  v. American Airlines, Inc. EEOC  
Decision, Case No. 6-6-5762, reported in CCH Employment Prac­
tices Guide 1(1210.522 (June 20, 1968).



9

was so clear that a double standard violates Title VII 
that the employer virtually conceded that the policy con­
stituted sex discrimination, and attempted to justify it 
under a special exemption in the statute for bona fide occu­
pational qualifications. This exemption, which Respondent 
has not claimed, is discussed at pp. 10-11, infra. The only 
lower court decision even suggesting that a sex-related 
double standard may be lawful is Lansdale v. United Air 
Lines, 62 Lab. Cas. 1J9417 (S.D. Fla. Dec. 2, 1969), where 
on the same facts as Sprogis, supra, the court held that 
the discharging of married stewardesses did not constitute 
sex discrimination. However, the District Court there re­
lied upon and clearly felt controlled by the Court of Appeals 
decision in this case below. As such it offers no inde­
pendent authority on this issue.

This does not mean that an employer must ignore family 
responsibilities of potential employees. To the extent such 
responsibilities may cause substantial problem in job per­
formance an employer is free to set standards to protect 
his bona fide business interests. But such standards should 
be related to the problem at hand, not to the sex of the 
potential employee. Thus an employer may require that 
any parent with primary child care responsibilities make 
adequate day care arrangements. This rule would cover 
some men, e.g., widowers, and it would exempt some women, 
e.g., those whose husbands remain at home. Such neutral, 
non-sex-related standards are clearly permitted under Title 
V II whenever the needs of business require them.6 Respon­

6 Even a neutral rule should be supported by evidence of busi­
ness need to prevent its use as a device to discriminate against 
women. See Local 53, Heat & Frost Insulators and Asbestos 
Workers v. Vogler, 407 F.2d 1047 (5th Cir. 1969) ; Cooper and 
Sobol, Seniority and Testing Under Fair Employment Laws: A  
General Approach to Objective Criteria of Hiring and Promotion, 
82 Harv. L. Rev. 1598, 1600-1601 (1969).



10

dent, however, has made no attempt to use a neutral stan­
dard.

Moreover, Title V II even recognizes that in certain 
situations sex will be such a dominant factor in job per­
formance that all women or some subgroup of women 
must per se be excluded. In such situations an employer 
may establish that sex is

a bona fide occupational qualification [a BFOQ] rea­
sonably necessary to the normal operation of [his] 
particular business or enterprise,

and thereby gain the right to impose a sex related hiring 
standard. However, use of this exemption is strictly limited 
to prevent it from vitiating the overall Act and it is unlikely 
that respondent could qualify under it.7 See 110 Cong. 
Rec. 7213 (1964); Weeks v. Southern Bell Tel. and Tel., 
408 F.2d 228 (5th Cir. 1969); Equal Employment Oppor­
tunity Sex Discrimination Guidelines, 29 C.F.R. §1604.1 (a) 
(1968).

The company has not even claimed that its policy rises to 
the level of a BFOQ. The company has not offered the 
slightest evidence of any sort that women with pre-school 
age children are any less capable, efficient, trustworthy, or 
otherwise less valuable employees than men with such chil­
dren. Rather, respondent has attempted to gain the bene­
fits which the law extends to a BFOQ without any evidence 
of such. Congress can hardly have intended to permit this. 
I f employers -were permitted to impose sex-related stan­

7 Respondent apparently doubted that it could establish a BFOQ  
exemption and did not even bother to raise it as a possible defense 
below. However, in its Brief in Opposition to Petition for Cer­
tiorari, respondent indicates that it has second thoughts on the 
matter and will attempt to assert a BFOQ in the event it loses 
this appeal.



11

dards without establishing a BFOQ, the special statutory 
exemption with its strict limitations would become meaning­
less. Since respondent has neither used a neutral standard 
nor established a BFOQ, the company has not recognized 
the “different responsibilities” of men and women in a way 
permitted under Title VII. The District Court therefore 
erred in sustaining the company’s practice on this ground.

2. The “ sex-plus” principle established by the Court of 
Appeals decision threatens the effectiveness of the entire 
federal fair employment law generally and conflicts in 
principle with other Court of Appeals decisions.

In the words of Chief Judge Brown, dissenting below: 

I f “ sex-plus” stands, the Act is dead (A. 48a).

It is not difficult to see why this is not an exaggeration. 
We have already seen the first extension of the “ sex-plus” 
rule—Lansdale v. United Airlines, 62 Lab. Cas. 1J9417. 
(S.D. Fla. Dec. 2, 1969), where the court upheld an em­
ployer policy of dicharging married women, while retaining 
married men. Thus far, the rule has permitted the exclu­
sion of women with pre-school age children and married 
women. What is next? Possibly young women—who may 
distract male workers. All of this could be justified on 
the ground that the discrimination was not against women 
as such, but rather only against those women who did 
not meet the special standard, and that this is “ sex-plus” .

If employers are thus free to exclude groups of women 
under the “ sex-plus” rule, without having to meet the BFOQ 
test, the door is open to such vast erosion of female employ­
ment opportunity that Title VII will have no meaning. 
Moreover, if “ sex-plus” is not sex discrimination, then it is



12

difficult to understand why “ race-plus” is not exempted 
from the race discrimination prohibition in the Act.8

Even if the “ sex-plus” rule is not greatly expanded, it 
will deal a serious blow to the objectives of Title VII when 
applied solely to exclude mothers of pre-school age chil­
dren. If the law against sex discrimination means anything 
it should protect employment opportunities for those groups 
of women who most need jobs because of economic neces­
sity. Working mothers of pre-schoolers are such a group. 
Almost, twenty-nine percent of all mothers with pre-school 
age children (under 6 years old) work, a total of 4.1 million 
mothers as of 1967.9 The number of working mothers with 
pre-school age children is continuing to rise.10 Studies show 
that, as compared to women with older children or no chil­
dren, these mothers of pre-school children were much more 
likely to have gone to work because of pressing need.11 
Forty-eight percent of mothers of pre-school children work 
because of financial necessity and 8 percent because their 
husbands are unable to work.12 Frequently, these women 
are a key or only source of income for their families.

8 While courts so far have not made this mistake in race cases, 
the decision below now opens that possibility. So far, a union rule 
requiring that applicants be recommended by present members in 
Vogler, supra and a union referral system which gave preference 
to men with previous referrals in United States v. Sheet Metal 
Workers, Local 36, supra, were both struck down.

9 U. S. Dept, of Labor, Women’s Bureau, Background Facts on 
Women Workers in the United States, 8 (Sept. 1968). This data 
includes only those classified as “ ever married” by the Labor De­
partment.

10 U. S. Dept, of Labor, Women’s Bureau, Working Mothers and 
the Need for Child Care Services, 7-8 (June 1968).

11 Rosenfeld and Perrella, W hy Women Start and Stop W orking: 
A  Study in Mobility, Monthly Labor Review, Sept. 1965, at 1077-79, 
Table I.

12 Ibid.



13

The extent to which exclusion of mothers of pre-school 
children is contrary to Title VII becomes even more appar­
ent upon examination of the racial impact of this exclusion. 
Its primary adverse impact is on blacks.

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

In 1967, nearly half of the non-white women in the working 
force had children under six years of age.14 * In contrast, 
only one-fourth of the white mothers had children under 
six.16 These women tend to be family heads, responsible 
for the economic survival of their children. More than 
twice as many non-white mothers as white mothers are 
heads of families.16

Black women suffering under the double discrimination of 
race and sex are the most oppressed group of workers in 
the society. As women they earn much less than men. In 
1966, the average yearly income of fully employed women 
was only 58% of the average yearly income of fully em­
ployed men.17 And for black women the situation was even 
worse: for 1964 their average yearly income was only 70%

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

14 U. S. Dept, of Labor, Women’s Bureau, Who Are the Working
Mothers? Leaflet 37 (1968).

16 Ibid.

16 U. S. Department of Labor, The Negro Family— The Case for 
National Action  (March 1965).

17 U. S. Dept, of Labor, Background Facts on Women Workers 
in the United States (September 1968).



14

of that of white women.18 An important factor in this low 
income situation is the large number of black women work­
ing as domestics or in other service work outside the cover­
age of minimum wage laws.19 Families dependent on such 
a breadwinner need every possible aid in breaking out of 
this bottom rung employment category and gaining decent 
factory and office work, such as that at the Martin Marietta 
Company. Title VII was designed to contribute to that 
effort and can do so significantly is “ sex-plus” is firmly re­
jected.

3. The “ sex-plus” principle has been rejected by the 
EEOC, whose rulings were improperly rejected by the 
Court of Appeals.

The importance of rulings and regulations of an admin­
istrative agency charged with enforcement of a statute has 
been established in a long line of cases. See Udall v. Tail- 
man, 380 U. S. 1, 16 (1965); FTC v. Colgate-Palmolive Co., 
380 U.S. 374, 385 (1965); Fawcus Machine Co. v. United 
States, 282 U.S. 375, 378 (1931); United States v. American 
Trucking Assn., 310 U.S. 534, 549 (1940); United States v. 
Public Utilities Comm., 345 U.S. 295, 314-15 (1953); FTC v. 
Mandel Bros., 359 U.S. 385, 391 (1959). These cases empha­
size judicial reliance on the special expertise of adminis­
trative agencies and their ability to apply relevant statutes 
to practical situations. In particular, several lower courts 
have relied upon the expertise of the Equal Employment 
Opportunity Commission. Int’l Chem. Workers v. Planters 
Mfg. Co., 259 F. Supp. 365, 366-67 (N.D. Miss. 1966); Cox 
v. U.S. Gypsum Co., 284 F. Supp. 74, 78 (N.D. Ind. 1968), 
aff’d as modified, 409 F. 2d 289 (7th Cir. 1969).

18 U. S. Dept, of Labor, Bureau of Labor Statistics, Special Labor 
Forces Report (1964).

19 U. S. Dept, of Labor, Bureau of Labor Statistics, Employment 
and Earnings, May 1963, Table A-21.



15

Due to the confidential nature of much of the work of the 
EEOC, only a small portion can be documented to this 
Court; yet it should be emphasized that any ruling or regu­
lation promulgated by the EEOC derives from its broad 
experience in dealing with thousands of cases under the 
statute. More importantly, the EEOC is clearly in the best 
position to assess the long-run implications of “ sex-plus” 
discrimination. The situation is thus very similar to that 
in FTC v. Colgate-Palmolive Co., supra, where the Court 
observed:

as an administrative agency which deals continually 
with cases in the area, the Commission [FTC] is often 
in a better position than are courts to determine when 
a practice is “deceptive” within the meaning of the 
Act [FTC Act]. This Court has frequently stated that 
the Commission’s judgments be given great weight by 
reviewing courts. 380 U.S. at 385.

The Court while noting that the courts have the final say, 
sustained the position of the FTC.

The EEOC has come out foursquare against the “ sex- 
plus” theory of the court below. The Commission’s Equal 
Employment Opportunity Sex Discrimination Guidelines 
deal specifically with this question in the context of married 
women:

The Commission had determined that an employer’s 
rule which forbids or restricts the employment of mar­
ried women and which is not applicable to married 
men is a discrimination based on sex prohibited by 
Title V II of the Civil Rights Act. It does not seem to 
us relevant that the rule is directed against all females, 
but only against married females, for so long as sex is 
a factor in the application of the rule, such application 
involves a discrimination based on sex. 29 C.F.R. 
§1604.3 (1968)



16

The EEOC has hacked up its views with amicus partici­
pation in this case in the Court of Appeals and a Petition 
for Certiorari before this court.

The importance of deferring to this regulation takes 
on particular meaning in light of the EEOC’s role in 
Title VII enforcement. The EEOC, like other admin­
istrative agencies, promulgates rulings and regulations 
based on its expertise. Unlike most other agencies, how­
ever, the EEOC has no power to enforce its regulations and 
must rely on voluntary compliance by employers. This 
initial reliance on voluntary conciliation is a hallmark of 
Title VII. See 110 Cong. Rec. 2566 (1964) (discussion of 
amendment clarifying conciliation agreement); House Rep. 
No. 570 at H.R. 405, 88th Cong., 1st Sess. (1963) (report on 
earlier version of Title V II). Thus, critical to the efforts of 
the EEOC to perform this role delineated by Title V II is 
recognition of its expertise by the courts. Given such recog­
nition, employers would not lightly disregard the EEOC 
and would be encouraged to settle through conciliation. On 
the other hand, should the EEOC regulations not be given 
substantial effect, the Commission itself would exert but 
little influence, and the full burden of Title V II enforcement 
would fall upon the courts. This is clearly not the pattern 
that Congress intended when it established a conciliation 
commission as the front line in Title VII enforcement.

We submit that the Court of Appeals gave insufficient 
weight to EEOC regulations. The decision below should 
be reversed for that reason as well as others advanced in 
this brief.



17

CONCLUSION

For the foregoing reasons the judgment below should 
be reversed and remanded.

Respectfully submitted,

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

10 Columbus Circle 
New York, New York 10019

E arl M. Johnson

625 West Union Street 
Jacksonville, Florida 32202

George Cooper 
Christopher Clancy

401 West 117th Street 
New York, New York 10026

Attorneys for Petitioner



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