Phillips v. Martin Marietta Corporation Brief Amicus Curiae

    No. 1058

IN THE

Supreme Court of the United States
OCTOBER TERM, 1969

No. 1058

IDA PHILLIPS,

Petitioner,

v.

MARTIN MARIETTA CORPORATION

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

b r ie f  f o r  hum an  r ig h t s  f o r  w om en , INC.
AS AMICUS CURIAE

SYLVIA ELLISON 
Attorney, Human Rights 
for Women, Inc.
Mailing Address:

P.O. Box 7402
Ben Franklin Station
Washington, D.C. 20044



\

s

(i)

1
\

INDEX \
Question presented . .«
Interest of Human Rights for Women

J Statement ..........
Argument:

1. If sex is even one'element considered in hiring an 
individual, no matter how it coalesces with other job 
criteria (relevant or irrelevant), the proscriptions of 
Title VII are violated

j
i44

2. Title VII prohibits pre-judging an individual on the
basis of sex by making a generalized assumption about 
women . . . .

J

3. Employer policies as to job requirements may not 
differentiate on the basis of sex, nor discriminate 
against women . . .

4. The Court of Appeals interpretation of Title VII • 
would nullify the protection of the law for the per­
sons who are in greatest need of its protection 10

Conclusion . . 1 1
i
j CITATIONS

CASES:

1 Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (C.A. 7, 1969)
Cheatwood v. South Central Bell Tel. & Tel. Co 103 F Sunn 

754 (N.D. Ala., 1969) . " PP'

6

7

I
Local 53, Int. Ass’n of Meat & Frost I.&A. Wkrs. v Voeler 

407 F.2d 1047 (C.A. 5) Q

Local 189, Papermakers and Paperworkers v. United States, 
416 F.2d 980 (C.A. 5), cert, denied, 38 L.W. 3320

Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va.)
Richards v. Griffith Rubber Mills, 300 F. Supp 338 (D Ore 

1969) v •’

8,9
8

Rosenfeld v. Southern Pacific Co., 292 F. Supp. 219 (C.D. 
Calif.', appeal pending, C.A 9

/

7



t7 m” d: r r " T % ,)c" Tcl:'p',onc Co: 2 FEP

lV'(CAV 5S°U969)n Bdl Td- 4  Co.. 408 F.2d 228 '

(  ii)

ST A TUTE:

a 4 2 ^ . ^ “ leV'F78S- - . - ^
Sec. 703(a)
See. 703(e) . . . .  ............... ' ' ‘ '

MIS CELLANEOUS:

29 C.F.R. 1604.1(a)(1)

° f Commerce, Bureau of the Census 
No. 66, Table 41 CPR-60,

U SLahoPtF °f La5°r’ M°nth,y St3tistics on Woman Labor Force, data for May 1968

4
4

5,6, 7 

11 

1 1 

10



IN THE

Supreme Court of the United States
OCTOBER TERM, 1969 v  .

No. 1058

IDA PHILLIPS,

Petitioner,

v.

MARTIN MARIETTA CORPORATION

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

BRIEF FOR HUMAN RIGHTS FOR WOMEN, INC. 
AS AMICUS CURIAE

QUESTION PRESENTED

Whether, under Title VII of the Civil Rights Act of 1964, 
an employer may refuse to hire women with pre-school age 
children while hiring men with pre-school age children.

INTEREST OF HUMAN RIGHTS FOR WOMEN, INC.

Hunan Rights for Women, Inc. is a non-profit tax exempt 
organization, which was incorporated in the District of 
Columbia in December 1968. One of its purposes is to pro­



2

vide legal assistance without charge to women seeking to 
invoke their rights under the Constitution and statutes of 
the United States, particularly Title VI; of the Civil Rights 
Act of 1964, relating to equal employment opportunity. A 
major portion ol IIRW's efforts and financial resources have 
been devoted to furnishing free legal counsel for women in 
Title VI1 cases.

Human Rights for Women is deeply concerned with a 
clear and proper interpretation of Title VI1 as it applies to 
sex dsicrimination and with equal protection of the law for 
women. The decision of the Fifth Circuit in this case 
endangers the protection of nondiscrimination legislation for 
women and for all discriminated-against classes. HRW be­
lieves that the Fifth Circuit has confused and misinterpreted 
Title VII by holding that it permits the refusal to hire an 
individual who possesses the characteristics of being (a) a 
female and (b) a parent of pre-school age children. This 
case presents a unique opportunity to clarify and define 
what prejudice and discrimination really mean and the scope 
of the proscriptions of the Federal statute prohibiting dis­
crimination in employment.

STATEMENT

Martin Marietta Corporation refused to hire Ida Phillips 
for the position of assembly trainee, advising her that the 
company does not consider female applicants with pre­
school age children for such position, although male appli­
cants with such children are considered. (Pet. App. 2a) Mrs. 
Phillips complained that her rights under Title VII of the 
Civil Rights Act of 1964 had been violated. (78 Stat. 241, 
253, 42 U.S.C. 2000e et seq.)

The District Court struck the portion of the complaint 
alleging discrimination against women with pre-school age 
children and then granted the company’s motion for sum­
mary judgment based on an uncontroi’erted showing that a



3

larger percentage of women applicants than men applicants 
were hired tor the position of assembly trainee. (Pet App. 
5a-6a)

The Court of Appeals affirmed, reasoning that a violation 
of Title VII —

can only be discrimination based solely on one of 
the categories i.e. in the case of sex; women vis-a- 
vis men. When another criterion of employment is 
added to one of the classifications listed in the Act, 
there is no longer apparent discrimination based 
solely on race, color, religion, sex or national origin. 
(Pet. App. 8a-9a)

The Court of Appeals further explained its theory of Title 
VII as follows:

1 he discrimination was based on a two-pronged 
qualification, i.e., a woman with pre-school age 
children. Ida Phillips was not refused employment 
because she was a woman nor because she had pre­
school age children. It is the coalescence of these 
two elements that denied her the position she 
desired. (Pet. App. 9a-10a)

A petition for rehearing was denied, with Chief Judge Brown, 
joined by Judges Ainsworth and Simpson, dissenting from 
the denial. (Pet. App. 12a-13a)

ARGUMENT

We agree with dissenting Chief Judge Brown of the Fifth 
Grcuit that if the above quoted “sex plus” interpretation 
of Title VI1 is permitted to stand, “ the Act is dead.” (Pet. 
App. 18a) We submit that the Court of Appeals interpre­
tation of Title VII is wrong for the following reasons:



4

i ' S v S  z
The very essence of fair employment legislation is to 

require the exclusion from consideration of the character

(a)CoVthe8?ateidRn ,the StatUtC’ e‘g- S6X’ race‘ Section 703 (a) of the Civil Rights Act of 1964 (42 U.S.C 4000e-b(a»
makes ,t an unlawful employment practice for an employed 

(1} or l1 L Z 7 lUStn H° hlrC ° r t0 dlSCharge ai^  dividual,or otherwise to discriminate against any individual
or privileged of e ^  "0mpensation> terms, conditions, 

pi 8 employment, because of such indi-
* * * raCe> color’ relig>on, sex, or national origin;

Race color, religion, sex, and national origin are thereby 
Z J  t t  aS permisslble j ° b qualifications. The employer7 
each^f ^  empl0yment policies must in effect be blind to 
employee dlaraCtenStics of ^  individual applicant or

theAlaw ° \hA V n tHH v tati°? SUbVCrtS the Ver̂  purpose of 
tect dC aL  ° n ° f a SCCOlld qualification to a pro-
tected class can exempt an employer policy or practice from
the prohibitions against nondiscrimination, then Catholic

r  ,W° T ™  be dis“ mii>ated against, blacks can be required to pass a special stringent test to
qualify for a job, and Spanish-surnamed Americans can be 
required to have PhD’s in English. Any emptov" r “ uW

tT a favored clP 7 ^  conti" u,; t0 8™ job preference o a favored class (e.g. white males) by adding a iob mnli
ft cation, relevant or irrelevant, for applicants of the protected 
classes he wishes to exclude. Protected

mav^noTh qUam^ tion to the ru,e of Title VII that sex 

7°3(e) of the Ac. (42 U.S.C. 2000e-2(e)), which provide!

1



5

that it is not unlawful to hire or employ employees on the 
basis cf the employee’s sex (or religion or national origin)—

in those certain instances where religion, sex, or 
national origin is a bona fide occupational qualifi­
cation reasonably necessary to the normal operation 
of that particular business or enterprise.

Under this provision, if maleness is necessary to the per­
formance of particular work, a woman need not be con­
sidered. Martin Marietta did not claim that sex (maleness) 
was a BFOQ and it is obvious that being male could not 
possibly be a BFOQ since “75 to 80 percent of those hold­
ing the positions [of assembly trainee] were women." (em­
phasis supplied). (Pet. App. 6a)

2. Title VII prohibits pre-judging an individual on 
the basis of sex by making a generalized assump­
tion about women.

The Equal Employment Opportunity Commission’s “Guide­
lines on Discrimination Because of Sex” specifically state 
that the following is a violation of Title VII (i.e. is not a 
BFOQ):

The refusal to hire a woman because of her sex, 
based on assumptions of the comparative employ­
ment characteristics of women in general. For 
example, the assumption that the turnover rate 
among women is higher than among men. 29 CFR 
1604.1 (a)( I )(i)

Under this rule, which we submit is correct, even if it could 
be proved (and it has been neither claimed nor proved) that 
women who are parents of pre-school age children are 
absent from work more often than men who are parents of 
such children, an assumption that an individual woman 
would likely follow that pattern is a forbidden basis for 
refusing to hire her. Fair employment legislation prohibits 
making a generalization about a protected class. Women, 
blacks, Jews, etc. must be treated as individuals and not be 
saddled with presumed generalized characteristics.



6

The EEOC guidelines also describe as unlawful-
The refusal to hire an individual based on stereo­
typed characterizations of the sexes. Such stereo­
types include, for example, that men are less capable 
of assembling intricate equipment, that women are 
less capable of aggressive salesmanship. The principle 
of non-discrimination requires that individuals be 
considered on the basis of individual capacities and 
not on the basis ol any characteristics generally 
attributed to the group. 29 CFR 1604.1(a)(1) 
(ii).

Employer policies that presume inabilities of women as a 
class to perform certain work have been held violative of 
Title VII. Thus the U.S. Court of Appeals for the Seventh 
Circuit reversed a District Court ruling that approved (as a 
BFOQ) an employer practice of allowing only men to work 
on jobs requiring the lifting of 35 pounds or more. Bowe 
v. Colgate-Palmolive Co., 416 F.2d 711 (C.A. 7, 1969). In 
that case the court stated that Colgate-

must notify all of its workers that each of them 
who desires to do so will be afforded a reasonable 
opportunity to demonstrate his or her ability to per­
form more strenuous jobs on a regular basis. Each 
employee who is able to so demonstrate must be 
permitted to bid on and fill any position to which 
his or her seniority may entitle him or her 416 
F.2d at 718.

The Fifth Circuit held in Weeks r. Southern Bell Tel.
& Tel. Co., 408 F.2d 228 (C.A. 5, 1969), that a 30-pound 
weight lifting limitation on women workers does not make 
being a male a BFOQ, nor does the desire to “protect” 
women from having to work at night. The court pointed 
out—

Title VII rejects just this type ol romantic paternal­
ism as unduly Victorian and instead vests individual 
women with the power to decide whether or not to 
take on unromantic tasks. Men have always had the 
right to determine whether the incremental increase



7

in remuneration for strenuous, dangerous, obnoxious, 
boring or unromantic tasks is worth the candle 
The promise of Title VII is that women are now ' 
to be on an equal footing. We cannot conclude 
hat by including the bona fide occupational qualifi­

cation exception Congress intended to renege on 
that promise (408 F.2d at 236).

Similarly, in ruling that an Oregon weight lifting limitation 
on women workers violates Title VII, the court in Richards 
■ Griffith Rubber Mills, 300 F. Supp. 338 (D Ore 1969) 

stated: ’

fcxcept in rare and justifiable circumstances, 42 
U.S.C. § 2000e-2(e), the law no longer permits either 
employers or the states to deal with women as a class 
in relation to employment to their disadvantage 29 
CFR § 1604.1(a). Individuals must be judged as 
individuals and not on the basis of characteristics 
generally attributed to racial, religious, or sexual 
groups. 300 F. Supp at 340.

See also, Cheatwood v. South Central Bell Tel & Tel Cn 
303 F. Supp. 754 (N.D. Ala., 1969); RosenfeU ,  S o u .L ,  
racific Company, 292 F. Supp. 1219 (C.D. Calif.) appeal 
pending in Ninth Circuit; Tuten v. Southern Bell Telephone 
Co., 2 FEP Cases 299 (M.D. Fla. 1969).

TJ m p r rtS ° f aPPCalS and d'Strict courts have approved the EEOC Guidelines on Sex Discrimination and interpreted
he prohibitions against sex discrimination in Title VII as 

prohibiting general assumptions about the inabilities of 
women to meet certain job qualifications. 29 CFR 1604.1 
(a)(n). Certainly, general assumptions about employment 
characteristics (ibid., subparagraph (i)) are likewise prohib­
ited. Indeed, unlike job qualifications, where there are 
(though very few) instances in which sex itself is a BFOQ,1

The EEOC Guidelines state: “Where it is necessary for the nur-
fexSeto heU hntlC'rya 0r gem,ineness’ tll£ Commission will consider sex to be a bona fide occupational qualification, e.g an actor or
actress.” 29 CFR 1604.1(a)(2).

(continued)



8

there is no comparable qualification in the law that an 
employer could use as a defense for a discriminatory gener­
alization based on presumed employment characteristics of 
women. Any assumption that a female applicant who is a 
parent of pre-school age children would have less desirable 
employment characteristics than a male applicant who is a 
parent of such children is absolutely forbidden by Title VII. 
Such pre-judging of an individual is what prejudice is.

3. Employer policies as to job requirements may not 
differentiate on the basis of sex, nor discriminate 
against women.

Employers are of course free to adopt any employment 
policy, practice or rule consistent with law. To be consist­
ent with Title VII any employment policy or practice—such 
as a policy of excluding persons who are parents of pre­
school children—must be applied without regard to race, 
color, religion, sex, or national origin. Martin Marietta’s 
policy in this case was applied only to female parents and 
not to male parents. It obviously differentiates on its face, 
on the basis of sex, and thereby violates the rights of 
women under Title VII. The Fifth Circuit has held that 
even where an employer rule or policy is neutral on its face, 
if it operates to discriminate against a protected class under 
Title VII (e . g women) the rule or policy must be changed 
unless there is an overriding legitimate non-racial (non-sex

The BFOQ provision is not an exception in the normal sense of 
the term. It was not meant to undermine the basic prohibition of 
the Act and permit sex discrimination in employment. It is a mere 
clarification, which points out that sex may be relevant to employ­
ment in an extremely limited number of instances where “maleness” 
or “femaleness” is a job requirement. Where an employment classi­
fication or system is discriminatory, it is not “bona fide.” See Local 
189 v. U.S., 416 F.2d 980, 988, and Quarles v. Philip Morris, Inc., 
279 F. Supp. 505, 517 (E.D. Va. 1968). Therefore the BFOQ pro­
vision creates no exception to Title VII and cannot be used as a 
defense to a system of sex discrimination in employment as such sys­
tem is not “bona fide.”

/



9

based) business purpose. See Luccl 189, Papermakers and 
Paperworkers v. United States, 416 F.2d 980, 989 (C.A. 5), 
cert, denied, 38 L.W. 3320; Local 53, Int. Ass’n o f Ileat & 
Frost I.&A. Wkrs. v. Vogler, 407 F.2d 1047, 1054 (C.A. 5). 
For instance, in Local 189, it was pointed out that under 
the business necessity principle an employer could require 
that employees placed in secretarial positions be able to 
type even though the requirement might mean the exclu­
sion of disadvantaged black persons who had not had train­
ing in this field. (416 F.2d at 988-989).

In Local 53, supra, the court held that a nepotism sys­
tem, neutral on its face, but used to exclude black employ­
ees from jobs, was a discriminatory system which could not 
be defended on the ground of “business necessity” even 
though there might be some incidental business advantages 
in using the system.

The “business necessity” argument thus comes into play 
only where a neutral rule, nondiscriminatory on its face, 
incidentally operates against a protected class (blacks or 
women) but for overriding business reasons rationally related 
to the duties involved in the job the rule is shown to be non­
discriminatory and thus not violative of the Act. Under no 
circumstances has any court held that business necessity can 
justify a discriminatory effect of an employment practice — 
and the whole issue cannot arise where the employment 
practice discriminates on its face, as in the instant case.
It is not even relevant here.

To recapitulate, for an employer practice to be valid as 
a “ business necessity’Tmder Title VII, it would have to be 
all of the following;

(1) Neutral on its face. E.g , if the policy applied with 
respect to single (divorced, widowed) parents of pre-school 
age children rather than to mothers, it would be neutral on 
its face. 2

(2) Not discriminatory against women (or blacks) in its 
operation. E.g., if it is shown that more women than men



10

without spouses had the custody and care of pre-school age 
children, such neutral policy would operate to discriminate 
against women and would be violative of Title VII.

(3) The policy itself must be relevant to the requirements 
o f the job. Parenthood obviously could not be. But a cer­
tain rate of absenteeism could be. Therefore, instead of 
assuming that parents will have a high rate of absenteeism, 
the policy must be tailored to the job requirement, i.e., 
employees must comply with certain attendance rate require­
ments.

(4) The policy must be applied on an individual basis and 
not on the basis o f  sex (or race, etc.) Assuming, arguendo, 
that it could be shown that blacks or women as a class had a 
poorer attendance record, no such class presumption can be 
made with respect to an individual black or woman. This 
is the very kind of class pre-judging that Title VII forbids.

4. The Court of Appeals interpretation of Title VII 
would nullify the protection of the law for the 
persons who are in greatest need of its protection.

The purpose of Title VII of the Civil Rights Act of 1964 
is to protect women and other classes from employment 
discrimination. Statistics on employment and earnings of 
women as compared to men show that discrimination on 
the basis of sex inflicts the most severe economic damage 
on its victims and that, as a group, women heads of house­
hold with children to support suffer most.

Nearly half of all women 18 to 64 years of age are in 
the labor force. (Monthly Statistics on the Woman Labor 
Force, data for May 1968, U.S. Dept, of Labor.) Women 
with 1 to 3 years college earn less ($3714 for white women, 
$3706 for nonwhite women) than men with an eighth 
grade education (white men: $5184; nonwhite men: $4261). 
White women with 4 or more years of college earn less 
($5301) than nonwhite men with only a high school educa­
tion ($5721). Nonwhite women with 4 or more years of

/



college are better off ($6275) than white women ($5301), 
but nonwhite women are at the bottom in all lesser educa­
tional categories. The white male earns the most of all 
at all educational levels, a long standing privileged position 
with sex and race discrimination shielding him from fair 
competition. (Statistics for 1968, from U.S. Dept, of Com­
merce, Bureau of the Census; CPR-60, No. 66, Table 41).

Eleven percent of American families are headed by 
women; 35% of these families live in poverty; 61% of the 
Nation’s poor children live in families headed by women. 
(U.S. Dept, of Labor, “Fact Sheet on the American Family 
in Poverty” , April 1968).

Women as a class, and especially women who are respon­
sible for the support of children are in the greatest need of 
protection against discrimination afforded by Title VII. 
The ruling of the Fifth Circuit in this case judicially approves 
a discriminatory policy of a private employer and places 
women in the eyes of the law in a worse position than 
before the enactment of Title VII. Prior to Title VII, such 
private discrimination at least did not have the sanction of 
Federal law. Such a construction of Title VII cannot be 
permitted to stand.

CONCLUSION

The decision below should be reversed and remanded 
witli instructions that judgment be entered for the plaintiff.

Respect 'ully submitted

SYLVIA ELLISON
Attorney, Human Rights for 
Women, Inc., as Amicus Curiae



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gti the dfeurt of the Sailed states
October Term, 1969 

No. 1058

I da P h il l ips , petitioner 
v.

M artin M arietta Corporation

on PETITION FOU A IWHT OP CERTIORARI'TO THE V m T E D  
STATES COURT OF APPEALS FOR I R E  H U H  CIRCVI

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

O PINIO NS BELOW

The opinion of 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 ju ges 
dissenting (Pet. App. 12a-21a), is reported at 416 F.2d 
1257. The opinion of the district court (Pet App. la  
3a) is not reported.

JURISD 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 
of 1964, ail employer may, in the absence of business 
necessity, refuse to hire women with pre-school age 
chi*'Ire while hiring men with such children.

STATU TE INVOLVED

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

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 of 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- 
ablv necessary to the normal operation of that 
particular business or enterprise * * *•

IN T E R E ST  OF TH E U N IT E D  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

to rn e y  G en e ra l w ith  im p o r ta n t  re sp o n s ib ilitie s  f « r  
o b ta in in g  com pliance  w ith  th e  re q u ire m e n ts  o f  T i tle  
Y I I  T h e  c o u r t  o f  a p p e a ls ’ r e s tr ic te d  in te rp r e ta t io n  
o f  th is  im p o r ta n t  s ta tu to ry  m a n d a te , i f  p e im it te  
s ta n d  w ill eause u n w a r ra n te d  h a rd s h ip  to  a m i le s  in  
w , " h  th e  m o th e r  is  th e  o n ly  av a ilab le  b re a d —  
M o reo v er th e  ra t io n a le  o f  th e  decision  below , i f  ap - 
pU ed to  th e  o th e r  p ro h ib itio n s  o f T i t le  V I I  a g a in s t 

lo y m en t d is c r im in a tio n  b ased  on  ia c e , ,
re  g t a  o r  n a tio n a l o r ig in , w ou ld  co m p reh en siv e ly  
b i p ed  th e  g o v e rn m e n t’s e ffo rts  to  in su re  e q u a lity  o f 
em p lo y m en t^  o p p o r tu n itie s  fo r  a ll re s id e n ts  o f  th e

United States. statem ent

S ole ly  because  she w as a  w om an  w ith  p re -sch o o l 
!  c h ild ren  th e  p e t i t io n e r  w as d en ied  em p lo y m en t 

I s  a n  a ssem b ly -tra in e e  b y  tlie  re sp o n d e n t c o rp o ra tio n ,

• z — r  ”  : * s
t in n e r ’s co m p la in t by s tiiK in & u t  
d is c r im in a tio n  based  on th e  f a c t  th a t  *  -  I
school age  c h ild re n , on th e  g ro u n d  -t h a t J ' 5
not prohibit such discrimination, flic

S t ’

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) :

* * * The 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 of these two elements that denied her the 
position she desired.

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

REASONS FOR GR A NTIN G  T H E W R IT

The decision below directly affects a substantial 
number of women in the labor market2 and condones 
discrimination against them in contravention of the 
federal policy of 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 
witli children under 18 years of age. Of this number, 38.9 per­
cent, or 4.1 million, were mothers with children under 6 years 
of age. “Who Are The Working Mothers?” U.S. Dept, of 
Labor, Wage and Hour Adm. (Leaflet 37, 1968).

8 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 of 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 of 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 busines¥ opera­
tions. Specifically, there was no showing that such

Programs, Weekly Compilation of Presidential Documents, Vol. 5,
No. 3*2, August 11,19G9,p. 1108: .

As I  mentioned previously, greatly expanded day-care cen­
ter facilities wo \d 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 r fu rther 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,” 8 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. 1 . „

This holding contravenes the plain language ot
Section 703, which makes it an “ unlawful employ- 
ment practice for an employer .*_ ! A  ta discriimiiate 
against any individual with respect to lus •
terms [or] conditions * * * of employment, because of
such individual’s race, color, religion, sex, or national 
origin * * To require of i prospective women em-

D.scc q $ i ^ ( e ) ( l ) ,  supra, p. 2.



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8

CONCLUSION

It  is therefore respectfully submitted that the peti­
tion for a writ of certiorari should he granted.

E rw in  N . Griswold,
Solicitor General.

J erris L eonard,
Assistant Attorney General. 

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

R obert T . M oore,
Attorney.

S tanley P .  H ebert,
General Counsel,

Equal Employment
Opportunity Commission.

F ebruary 1970.

U.S .  GOVERNMENT PRINTING OFPICE:  l » 7 0