Correspondence from Karlan to Ganucheau (Clerk); Reply Brief for Plaintiffs-Appellants Ronald Chisom, et al.

    t
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*3 In t h e

Supreme- Chart nt tljr luitrft Stairs
October Term, 19G9 

No. 1058

Ida Phillips,

—v.—

Martin Marietta Corporation,

Petitioner,

Respondent.

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

BRIEF FOR RESPONDENT

May, 1970

Of Counsel:
Clark C. V ogel 

New York, New York
James T. E llison 

Baltimore, Maryland
J. Thomas Cardwell 
George T. E idson, Jr. 
D avid J. F uller 

Orlando, Florida
A rnold & Porter 

Washington, D. C.

W illiam Y. A eerman 
Donald T. Senterfitt 

Suite 50G
First National Bank Building 
P. 0. Box 231 
Orlando, Florida 32802

Paul A . Porter 
V ictor H. K ramer 
Dennis G. Lyons 
James A. Dobkin

1229 Nineteenth Street, N.W. 
Washington, D. C. 20036

Attorneys for Respondent



I N D E X

PAGE

.................... 1

.................... 2
.

Summary of Argument .................... ................. 10

............... 13

A. As to tlic Timeliness of the Petition for Cer-
.................... 13

B. As to the Merits .................. ..........................  17

C o n c lu sio n  ....................................... - ............ ........................ 29 V

T able  of A u t h o r it ie s

Cases:

Bowman v. Loperena, 311 U.S. 262 (1940) ................... 16
Boy]an v. United States, 257 U.S. 614 (1921) ............... 14

Department of Banking v. Pink, 317 U.S. 264 (1942) .... 13

FTC v. Minneapolis-Honey well Regulator Co., 344 U.S.
206 (1952) ...............................................................-..... 15,16

Market Street R. Co. v. Railroad Comm’n, 324 U.S. 
548 (If 15

Teague v. -Commissioner of Customs, 3S4 U.S. 977 
(1969) ...........................-............................-...................... 13

I



• • u

PAGE

United States v. Adams, 3S3 U.S. 39 (19GG) .... ..........  14
United States v. Crescent Amusement Co., 323 U.S.

173 (1944) .......................................................................  14

Zimmern v. United States, 298 U.S. 1G7 (1936) ...........  14

Rules:

Federal Rules of Appellate Procedure
Rule 35(c) ..............    15
Rule 40(a) .......................................................   13,15
Rule 41(a) ..r.....;.-..........................................................  1
Rule 41(b)   14

Stahites:

28 U.S.C. $1254(1) ......................................................\ 2
28 U.S.C. $2101 (c) ....................................................  13
42 U.S.C. $2000e.......................................................... 3

Pub. L’. 8S-352, $706 et seq., 78 Stat. 259 (1964) ......... 3

Civil Rights Act of 1964
Title VII, $703(a) .................................... 2,4,17,19,29

Other Authorities:

Stern and Grossman, Supreme Court Practice (4th
ed. 1969), p. 242 ......................................................13,14,15

Backenheimer, Demographic and Job Characteristics 
as Variables in Absences for Illness, 83 Public 
Health Reports, 1029 (196S) ........................................  29

Isambert-Jamati, Absenteeism Among Women Work­
ers in Industry, LX X X V  International Labour Re­
view 248 (1962) .............................................................. 29



In t h e

(Emtrl of %  IfuitPii ©talas
O ctober T e r m , 1969 

No. 1058

Ida Phillips,
' Petitioner,

M a r t in  M ar ietta  Corporation ,

Respondent.

o n  w r it  of certiorari to t h e  u n it e d  states court of

APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENT

JURISDICTION
I
i
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The judgment of the Ccurt of Appeals was dated and 
entered May 26, 1969, and a certified copy thereof was 
issued as a mandate to the District Court on June 17, 1969, 
as required by Rule 41(a), Federal Rules of Appellate 
Procedure, no petition for rehearing having been then or 
thereafter filed. (A. 39a) On July 29, 1969, the Chief 
Deputy Clerk of the Court of Appeals sent a letter to coun­
sel advising them that “ Pending further order of the Court, 
the mandate heretofore issued is being recalled. ’ The let­
ter did not purport to amend or vacate the judgment previ­
ously entered. It also recited that “ at the request of one 
of the members of the Court in active service” the parties 
were requested to file and exchange further briefs on the 
case. (A. 40a-41a)

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On October 13, 19G9, the Court of Appeals entered an 
order, per curiam, unanimously subscribed to by the orig­
inal panel, to the effect that “ Tlie petition for rehearing 
js denied.” (A. 42a) No petition for rehearing had in fact 
beenfiled. The order also recited that at the request of one 
o f the members of the court, the circuit judges in regular 
active service had been polled and a majority were not in 
favor of a rehearing en banc, and that, accordingly, re­
hearing en banc was also denied. This aspect of the order 
was entered by a 10-to-3 vote, the three dissenters being 
judges who were not members of the original panel. (A. 
42a) The petition for certiorari was filed on January 10, 
1970.^The jurisdiction of this Court is invoked under ?S 
U.S.C. § 1254(1).

STATEMENT

Tins .action was commenced by petitioner, Mrs. Ida 
Phillips, against respondent by a complaint filed in the 
District Court for the Middle District of Florida under 
Tide V II of the Civil Eights Act of 19G4. The complaint 
charged respondent with “maintaining a policy, practice, 
custom or usage of discriminating against the plaintiff, 
and other female persons with pre-school age children 
similarly situated, because of sex. . . . ” (A. 3a) The com­
plaint charged that petitioner had submitted an applica­
tion for employment as an assembly-trainee to respondent 
pursuant to an ad in the local newspaper which advertised 
positions for 100 assembly-trainees, but was told by a 
receptionist, when she gave her application in at the 
respondent’s office, that respondent “ was not considering 
applications from women with pre-school age children.” 
(A. 3a-4a) The complaint recited certain administrative 
proceedings which had taken place before the Equal Em-

U
rx  *" * •• - 1 > ■»



-? /A

* I 
1

ployment Opportunity Commission (“ EEOC” ), and prayed 
for an injunction against interference with tire rights of 
petitioner and “ others similarly situated to enjoy equal 
employment, treatment, advancement or training for ad­
vancement as secured hy Title VII. . . . ” ; for retroactive 
employment with back pay for petitioner; and for costs 
and attorney’s fees. (A. 5a-6a)

Annexed to the complaint was a decision of the EEOC1 
dated July 14, 19G7, (A. 8a-10a) which indicated that the 
original charge by petitioner made before the EEOC was 
as follows:

'  I

{

“ When she applied for a job with Respondent in 
response to a newspaper advertisement, the recep­
tionist told her that her application could not he 
considered because Respondent was not hiring •people 
with pre-school age children.” (Emphasis Supplied.)

The EEOC decision at another place stated that when 
petitioner “ gave her application to the receptionist, she 
was told that Respondent was not considering applications 
from x>eoplc with pre-school age children.” The decision 
also recited that in the investigation before the EEOC, 
respondent stated that it did not have any formal rule “ on 
applicants with pre-school age children” but that it “ pre­
fers not to hire women who have young children.” (A. 9a)

The respondent filed a motion to dismiss the complaintr'' 
and to strike certain of its allegations. (A. 13a) By order 
dated February 27, 19G8, the court ordered that those 1

1 Sucli a decision of the EEOC lias no evidentiary effect in the 
subsequent court proceedings, under the statute (§706(a )), but 
the tiling of charges with the EEOC is a prerequisite to an indi­
vidual’s right of action under the statute. §70G(e). See §706 
Pub. L. 88-352, 78 Stat. 259 (1964), 42 U.S.C" §2000e.

- -» r- »-*r, '» « « - »~Y T  .»**• »•



4

portions of the complaint “ concerning the alleged denial 
of a right based upon the claim that the plaintiff was 
discriminated against because she has pre-school age 
children” should be stricken.2 However, the court held 
that the allegations of violation of the Act based on dis­
crimination because of sex would not be stricken. (A. 14a) 
Thereafter, respondent filed an answer which denied any 
discrimination on the basis of sex on the part of respon­
dent, or that petitioner was, refused employment solely on 
the basis of her sex. The answer did admit that plaintiff 
unsuccessfully applied for employment with respondent 
on the date she specified in her complaint, and that the 
receptionist told her that applications from women with
preschool-age children were not being considered. \(A 
16a-17a) ]~

. Ao lllrtlier Proceedings directly pertinent to the present 
issues were taken in the action until respondent filed a 
motion for. summary judgment on May 31, 1968. The 
motion was supported by an affidavit of the head of the 
respondent’s employment department at the location in 
question to the effect that respondent’s policies required 
compliance with Title VII of the Act; that no discrimina­
tion with respect to sex in hiring was practiced; that 
between 70 to 75% of the applicants for assembly-trainees 
at the time m question were women; and that approxi­
mately 7o to 80% of all those actually hired as assembly- 
trainees at the time were women. (A. 18a-19a) These

the als0,°rdered the Portions of the complaint allcAimthe action to be a class action to be stricken. (A 14a) No •110 10 !° 
late review has been sought in this Court with respect to tl i a ' 
peet of the court’s order. The notice of appeal to the Court of 
AppeaJs included this issue (A. 2.9a), but the Statement of d u e s  
filed as part of petitioner s brief m that court omitted it and the 
opinion of the Court cf Appeals mentioned the fact that the -die 
gation had been stricken (A. 31a) but made no furthlS reference



5

statistics were not disputed, and the record stands that 
the overwhelming proportion of applicants for the 
positions in question were women and that an even higher 
proportion of those hired were women.

While it is undisputed that respondent has no written 
policy, either at the corporate level or at the level of the 
plant in question, discouraging or even relating to the 
hiring of persons with preschool-age children, it is also 
undisputed on this record that the receptionist who took 
Mrs. Phillips’ application said words to the effect that 
respondent was not considering applications from women 
with preschool-age children. The record does not contain 
any indication of precisely what it was that this low-level 
employee of respondent said to petitioner. The record is 
also completely silent as to whether whatever it was that 
the employee said would have been understood by people 
to whom the remark was addressed as excluding from con­
sideration for employment women with preschool-age 
children who had a responsible adult living in their home 
during the day, such as a grandparent, unemployed spouse, 
unmarried or widowed sister, or the like.3 The record is 
silent as to what would have been said to Mrs. Phillips if 
she had said she was in this category.

I

3 There is nothing in the record which even purports to be a 
direct quote from the receptionist. Even if we had a direct quote, 
presumably we could not interpret it in the same fashion as one 
would interpret a business contract or other commercial instru­
ment. In popular speech, “women with preschool children” might 
mean what petitioner takes it to mean, namely, any woman who 
is the mother of children who are currently alive and at the pre­
school age. Or it might mean women who in the ordinary course of 
the day were left alone in their homes “with” preschool children, 
that is, mothers who had no relative living in their home with 
whom they could leave the children, ] Quite possibly because Mrs.

,tter__ealegoryr she did not pursue the matter



6

The record is, of course, also completely silent as to 
whether, if there were some exception under these circum­
stances, Mrs. Phillips would he in a position to have taken 
advantage of it. The record’s only information as to Mrs. 
Phillips’ domestic arrangements are that she has seven 
children, the youngest of which at the time of the action 
vas a preschool-age child, all of whom have a different 
last name fro i f r - t o r ^ p Hiaps the inference that con­
ceivably could he drawn from this last fact is that she is 
the sole custodian of her children, although we do not 
suggest that such an inference can he drawn from this 
meager record. There is also no evidence of record as to 
what would have been respondent’s attitude toward hiring 
a father with custody of preschool-age children, who was 
divorced, a widower, or the like, and living alone, and 
hence dependent upon outside baby-sitting arrangements, 
where there were other applicants, male or female, in " 
sufficient numbers for the assembly-trainee positions, who 
did not have this domestic complication.4 5 6

In short, the record tells us nothing at all about Mrs. 
Phillips and her arrangements for the care of her seven 
children except the fact that she has seven children; 
nothing about the dimensions of respondent’s attitude to­
ward hiring people with custody of preschool-age children, 
outside of the statement made by the receptionist; and 
what it tells us about the respondent’s hiring practices

4 This is found in her affidavit supporting her motion for leave
to appeal tit forma pauperis (A. 2Ga-27a) and was not before the 
Distnct Court when it granted judgment.

6 It is commonly supposed that there are substantially fewer 
men tlym women in this category. Although the record is per­
fectly silent on this point, this may have been the reason why 
(apart from the obvious fact that Mrs. Phillips was a woman and 
any statement as to men would, accordingly, have been irrelevant) 
the receptionist said that women with preschool-age children were 
not being considered for employment.



7

f
-

Kk
:

with respect to sex and assembly-trainees is that the over­
whelming percentage of people hired are women—indeed, 
in a higher proportion than the proportion of women in 
the people applying.

Almost a month after the service of the respondent’s 
motion for summary judgment, the petitioner served a 
request for the following admission upon respondent: 
“ That the Martin ^Marietta Corporation now employs 
males with pre-school age children in the position of 
Assembly Trainees.” (A. 21a), The District Court granted 
the motion for summary judgment before the Tune for 
responding to the request had run, and the request was, 
accordingly, never answered.^ However, we can advise this 
Court that, if answered, the answer would have been “ yes,” 
and that the answer would indeed have been “ yes” had the 
word “ females” appeared, in the request in lieu of the 
word “ males.” v

The District Court on July 9, 1968, granted the motion 
for summary judgment, observing that the respondent 
had, during the relevant period of time, hired 479 women 
for the job category for which the petitioner had applied; 
that 75 to 80% of the employees of the respondent hold­
ing the position were women; and that this percentage 
was higher than the percentage of women who applied. 
The court never found just what respondent’s practices 
were with respect to the hiring of women (or men, for 
that matter) with custody of prcscliool-age children.0 In

c The District Court assumed that the answer to the request for 
admission would have been affirmative. (A. 22a-23a) The court, 

j however, found that this fact was irrelevant to the issue before it 
(A. 23a) as indeed it was when viewed in light of the time which 

j would have any relevance fo r ! comparative purposes (September 
(i, 19G6, contrasted with the time to which the request was directed 
— June 2G, 19G8). (A. 21a) The assumption that males with pre- 

] school-age children were employed by respondent appears to have

//

I



its brief opinion, the court observed that: “ The resuon- 
sibililics o f men and women with small children are not 
the same, and employers are entitled to recognize these 
Afferent responsibilities in establishing hiring policies.” 
1 re court also held that the plaintiff had submitted no 
affidavits tending to show that she was discriminated

dfspuTe r s:  m  r  * ™ m n - r w a h ,s * > e*™ **d, p te of material tact, the court granted the motion 
for summary judgment. (A. 22a-23a) Because o f this rul­
ing, the court did not consider or reach (lie other defenses
™ Sef „ f  re? ? n ita t ’s ans" 'er’ oi' those, such as the so- 
called bona fide occupational qualification” defense, which 
it might have raised under the general issue at trial.

On petitioner's appeal, the Court of Appeals for the 
fifth  Circuit on May 2G, 19®, affirmed, in an opinion

i k b  i ' I n ,  ^  in " 'llicl1 J"dge McGowan of 
mi l Cir fit T i p CirC“ *’ sitting '» ’ designation, '
treated fl S° C0,' c,,n'ed. The court's opinion
heated the case as presenting the general proposition of

ffcientialion 'between men with pre-school age ehil- 
on, on the one hand, and women with pre-school age chil 

dren, on the other.” (A. 30a-37a) It then dealt with this 
general proposition in a rather general way. The court „b- 
sened  that it was possible to conclude that this sort of 
distinction constituted a prohibited discrimination, -jus­
tifiable only under the “bona tide employment qualification” 
provision of the statute. However, it noted that the EEOC 
which appeared amicus before the Court of Appeals, “has

Mivcly S b M 0;' C
h*™ « ia fact siuiilar Custodial S S L b lih ica

T'T-



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X

!j
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rejected this possible reading of the statute.”  (A. 37a)
The court stated that this left it “ only with the alternative 
of a Congressional intent to exclude absolutely any con­
sideration of the differences between the normal relation­
ships of working fathers and working mothers to their pre­
school age children.” The court observed that: “ If this is 
the only permissible view of Congressional intention avail­
able to us, as distinct from concluding that the seeming 
discrimination here involved was not founded upon ‘sex’ 
as Congress intended that term lo be understood, we have 
no hesitation in choosing the latter.” (A. 37a)

The court’s opinion also contained a further general 
observation to the effect that “ Ida Phillips was not re­
fused 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 de- \
sired.” (A. 3Ga)

The Court of Appeals, on its own motion on July 29,
19G9, recalled the mandate which had been on June 17, 1969 
issued under its judgment entered May 2G, 19G9. A letter 
from the Chief Deputy Clerk of the court (A. 40a-41a) 
recited the request of one of the members of the court in 
active service that there be further briefing “ with par­
ticular reference to the standard to be applied under the 
statute forbidding discrimination because of sex.” (A. 40a)

On October 13, 19G9, the court entered an order deny­
ing rehearing7 and reciting that rehearing en banc was also

7 The court’s order recites that a petition for rehearing was 
denied. The brief for the United States as amicus curiae in this 
matter (Gov’t Br. 1-2/) also erroneously recites that a “ timely peti­
tion for rehearing” was filed and denied. The brief for pelilioner 
makes no such asseriion, though it does unexplainedly refer to a 
“ timely request for rehearing” by a member of the court. (Pet. Br.
2) No petition for rehearing was ever filed, as indeed footnete 1 to 
Chief Judge Brown’s opinion in 1he Court of Appeals, dissenting 
from the court’s denial of rehearing cn banc, makes plain. (A. 43a)



10

denied, the latter by a 10-to-3 vote of the judges in ae

S£=S£r^'“  “SHSHP^ES
nation prohibition o f §703, Civil m & U  A *  of m T "

lion does not purport to be based on a bona fide no 
tional qualification.” 1 c oeeuPa‘

time provided by U'°
should be dismissed , v  e 1 of certiorari
days o f the i  d , pet,l'° n ™ > ™t tiled within 90

 ̂ ° mcn  ̂ cnlored on i\lav 2G 1009 but r«w-i
T  “ ™”  months thereat,ir. N o ‘  ? '

: : : n ;  r̂ V 7 mT 0,° * * * * *  ™  « « '■  » a
non the 13’ T ’
it, operated to toll the time for' efiti ’ pi'ecwIod

is the ™:" ° ra,‘MS COnrt

inR ~ s mo,io” ,or —

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11

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record as it. then stood. That record, although perhaps 
abbreviated in content, presented no material issue of 
fact on petitioner’s claim of discrimination. Petitioner’s 
general allegation of such discrimination had been rebutted 
by respondent’s affidavit to which no counteraffidavit was 
filed. Petitioner’s allegation that a receptionist told her 
that respondenf was not considering applications for 
women with preschool-age children standing alone, and 
even taken as true, does not state a claim under the 
Civil Eights Act, unless it is coupled with a' comparison 
ol respondent’s treatment of males with preschool-age 
children at the relevant time. Petitioner’s election not to 
adduce any proofs concerning respondent’s treatment of 
such males at the relevant time resulted in a situation 
where there was presented no issue of material fact for 
resolution by the District Court to preclude summary 
judgment for respondent.

' 3 !

2. The briefs of petitioner and the various amici range 
broadly over the practice, apparently not uncommon in 
industry, of considering as a negative factor in employ­
ing job applicants, the fact that they are directly respon­
sible for the supervision of preschool children. These 
briefs discuss a range of practices or possible practices 
which are not presented by the truncated record in this 
case. Many of the abstract positions taken appear to he 
without justification in terms of the statute.

3. The generality of the assertions by the petitioner 
and amici as to what is and is not permissible in this area 
are the consequence of the state of the record in this case. 
The record is silent as to what would have been respon­
dent’s attitude had Mrs. Phillips volunteered that sl:e 
had other custodial arrangements for her prescliool-age

• r**'»



v °uld Im vT talZ 'Z l-lr’d the respondent
-M e e t  to a custodial p r o b b T ^
applicant. 10 Ulat ol a woman

grant o f re sp tm W s m o Z ’n 7o C° 'U t “  “  reSnit ° f  tlle
granting of which motion p r o c t a L ^ r T ^ T 16'1” ” *’ " ‘C 
more adequate record Tm, ; + . development of a
record hv petitioner and ll,,.'" °rprota,lon of llns minimal 
Court of L T t l  T ' - and by the
summary disposition of Urn c a s e " u T ^ ” 1 ° iat U,e 
although defensible m 1 " ^on 0111 motion—
distortion ‘ °  “ “

cant principles o f the Am  , • , 1 ' 1 the sigmti.
conclude that it n7™ e v tsV  he P *  “ *  ^  *>
Appeals, set aside 2 ° , * ' * ™ * '  «  « *  C™ rt » f
District Court, and remind ^ Z  F T *  *  * *  
mgs, so that the record might reflect P *
particularity (he employment practices of ™ 
all relevant respects on • i f  10sP°ndent in

™ d e a s t o w h e r ; C m S : d ^ r Mti0nCOT,dte

12

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• v . r y f ^ r



13

ARGUMENT

m* * A. As to the Timeliness of the Petition for Certiorari

The petition for certiorari in this matter was not tiled 
within the time provided by law. Since the period for peti­
tioning for certiorari from a civil judgment of the Court 
of Appeals is governed by statute, 2S U.S.C. § 2101(c), the 
failure to petition within the time prescribed is jurisdic­
tional and the writ of certiorari should be'dismissed for 
want of jurisdiction.1 See Teague v. Commissioner of Cus­
toms, 391 U.S. 977 (19G9); Department of Banking v. Pink, 
317 U.S. 264, 26S (1942)'; Stern and Gressman, Supreme 
Court Practice (4th ed. 1969), p. 242.

The petition for certiorari in this case was tiled on 
January 10, 1970, over seven months after the entry of 
judgment on May 26, 1969, and would be clearly untimely 
unless the Court of Appeals’ order of October 13, 1969, 
set the 90-day period for petitioning for certiorari running 
once again. IVe submit that it did not. No petition for 
rehearing was filed, either within the 14 days contemplated 
by Rule 40(a), Federal Rules of Appellate Procedure, or 
otherwise. Accordingly, the established doctrine that the 
filing of a timely petition for rehearing tolls the time for 
petitioning for certiorari until the order disposing of the 
petition is entered (see Department of Banking v. Pink, 
supra, 317 U.S., at 266) is not applicable. Nor was there 
any other motion filed by any of the parties, such as a 
motion to amend the judgment, of a nature which would 
have a similar effect upon the original judgment. See

1 Accordingly, although respondent did not raise this point in 
; opposing certiorari, it may he raised and considered by this Court 
1 at this time. 1

i . ,

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14

United States v. Crescent Amusement Co., 323 U.S. 173, 
177 (1944); United States v. Adams, 3S3 U.S. 39, 41 (1966)!

The only action that was taken here was an action taken 
by the court itself. That action is expressed solely in the 
Chief Deputy Clerk’s letter of July 29, 1969, and in the 
court’s order of October 13, 1969. The Chief Deputy Clerk’s 
letter advised that the court had recalled its mandate to 
the District Court. But it is hornbook law that it is the 
date of entry of the judgment, not the date of transmittal 
of the mandate or any judgment entered on it, that is de­
terminative of the time for petitioning for certiorari See 
Boytan v. United States, 257 U.S. 614 (1921); Stern and 
Gressman, supra, at 246. Indeed, this is underscored by 
Buie 41(b), Federal Buies of Appellate Procedure, which 
provides for a stay of the court of appeals’ mandate pend­
ing application for certiorari. If the stay of the court’s, 
mandate prevented its judgment from being final, such a * 
stay would also operate to extend the time for petitioning 
for certiorari, which is manifestly not so.

The only other effect of the Chief Deputy Clerk’s letter 
was to advise that at the request of one of the members 
of the court in active service, the parties were requested 
to brief the case further. Neither the letter nor any order 
of the Court of Appeals ever purported to vacate the judg­
ment or to announce that the court proposed to amend or 
modify its judgment. The letter was not the equivalent of 
an order by the court that the case be reheard. Thus the 
case does not fall within the exception established by the 
doctrine of Zimmcrnv. United States, 298 U.S. 167 (1936) 
which holds that the time for review runs afresh when a 
court, on its own motion, actually opens up its judgment. 
Ileic, the judgment was never vacated, amended, or other- 
vise opened up; no petition for rehearing was ever filed;



15

and the only order ever entered by the Court of Appeals 
after the entry of its judgment was one refusing rehearing 
on that judgment.2

Indeed, it appears that the only rehearing requested was 
simply pursuant to an internal request made by a member 
ot the court who was not on the panel which sat to decide 
the case. The Federal Rules of Appellate Procedure, pro­
mulgated by this Court, expressly provide that even the 
pendency of a suggestion for rehearing en have made by a 
party “ shall not affect the finality of the' judgment of the 
comt of appeals. . . . ” Rule 35(c). If a suggestion made 
by a party, through the tiling of a formal document entered 
in the court of appeals’ docket, does not affect the finality 
of the judgment entered, and hence extend the time for 
petitioning for certiorari, so much the less would an in­
formal request made internally in the court of appeals by 
a member of the court who was not on the panel.3 This is, 
oi course, particularly the case where the internal “ sugges­
tion” for rehearing en banc was denied and the judgment 
never opened up or revised.

The case presented, then, is one which is within the doc­
trine of FTC  v. Minneapolis-Honeywell Regulator Co., 344 
U.S. 20G, 209-12 (1952). That case teaches where there 
has been no petition for rehearing or motion to amend tiled 
by a party, it is only where the court “ changes matters of 
substance, or resolves a genuine ambiguity, in a judgment

2 To be sure, the judgment may at the relevant times have been 
t within the power of the court, sua spontc, to revise it; but the 
* existence of that power does not detract from finality. Marl'd
Sired R. Co. v. Railroad Comm’n, 324 U.S. 548, 550-52 (1945) ; 
Stern and Gressman, supra, at 248-50.

3 It appears relevant, too, that even that internal “suggestion” 
was made well after the time had expired for petitioning for re­
hearing or suggesting rehen ing en banc. Rules 35(c), 40(a), Fed­
eral Rules of Appellate Procedure.



previously rendered” that the time to petition for certiorari 
runs afresh. 344 U.S., at 211. In cases where there is no 
Petition for rehearing or motion to amend the judgment, 
but simply an order of the court of appeals subsequent to 
the entry of its judgment, this Court in the Honeywell case 
held that. Ihe test is a practical one. The question is 
whether the lower court, in its second order, has disturbed 
or revised legal rights and obligations which, by its prior 
judgment, had been plainly and properly settled with final­
ity.” 344 U.S., at 212. Here, it is clear that the October 
lo, 1J69, older did not disturb or revise the prior judg­
ment ; it denied any further hearing with respect to it. 
That judgment was never the subject of a timely petition 
for rehearing or motion to amend, and it was never vacated 
by the Court of Appeals. Nor was there ever even a motion 
for leave to file an untimely petition for rehearing. See 
Bowman v. Loperena, 311 U.S. 262, 266 (1940).

The time for petitioning for certiorari, then, ran from 
the May 26, 1969, judgment. The petition for certiorari 
was thus out of time, and the writ of certiorari should be 
dismissed. A contrary conclusion would disturb the final­
ity of judgments and open up the possibility of extension 
of the time foi petitioning for certiorari in this Court by 
action of a minority of a court of appeals, which did not 
even participate in the panel deciding the case, in eases 
where the parties have not sought rehearing or amendment 
of the judgment and where the whole court, including the 
panel which decided the case, does not vacate or amend its 
judgment. Such a conclusion would be not only unfortu­
nate from the standpoint of judicial administration and the 
prompt disposition of cases, but would appear to raise a 
conflict with the statutory provisions that permit only 
Justices of this Court to extend the time for petitioning 
for certiorari.

16

|



. .î
AsU

***
* ■

B. As to the Merits

1. Underlying all tlie material in all the briefs for peti­
tioner and the several amici supporting her is the question 
whether the District Court erred when it granted respon­
dent’s motion for summary judgment. (A. 22a-23a) It is 
therefore essential to review the framework of the record 
in which the District Court’s summary judgment order was 
entered.

In her complaint (A. 2a-6a) the petitioner undertook to 
charge the respondent with a violation of her rights under 
Title V II of the Act. She asserted that “When she gave 
her application to the receptionist, she was told that de­
fendant was not considering applications from women with 
pre-school age children.” Petitioner then made the general, 
conclusion ary charge that: “Defendant refused to em­
ploy plaintiff solely on account of her sex.” (A. 4a) Peti­
tioner attached to her complaint a copy of the decision of 
the EEOC (A. 8a-10a) which makes the statements quoted 
at page 3 of this brief.

In response to the complaint, respondent filed several 
motions, among them a motion to dismiss for failure to 
state a claim upon which relief could he granted. (A. 13a) 
While it did not grant the motion to dismiss as such, the 
District Court did strike certain portions of the complaint. 
(A. 14a-15a) The District Court expressly struck the alle­
gations based on a refusal to hire petitioner because she 
had preschool-age children. In so doing the District Court 
asserted (A. 14a):

“ . . . it being the holding of this Court that discrimi­
nation based upon an applicant [a word encompassing 
both males and females] having pre-school age chil­
dren is not a discrimination based upon sex in viola-

i



18

tion of the Civil Rights Act. However, the allegation 
alleging a violation of the Civil Rights Act based 
solely on discrimination because of sex remains un­
stricken. . . . ”

It is apparent from the foregoing that the District Court
understood that the refusal to hire an applicant because 
of preschool-age children did not violate the Act. It is, of 
course, not seriously disputed that, if such an employment 
standard is not applied discriminatorily, this is a proper 
interpretation of the statute. It therefore seems apparent 
that the order of the District Court did not strike or elimi­
nate from the petitioner’s complaint her charge that she, 
individually, was discriminated against because she was a 
woman with preschool-age children.

The motion for summary judgment was heard on July 
8, 1968. (A. 22a) . Prior thereto, on June 26, 1968, peti­
tioner served a single request for admission: “ That the 
Martin Marietta Corporation now employs males with pre- 
school age children in the position of Assemblv Trainees!” 
(emphasis supplied). (A. 21a) At the time of the hear­
ing, the time for responding to the request for admis­
sion had not expired.

It was this record, therefore, that the District Court 
had before it at the hearing on the motion for summary 
judgment. It is only in retrospect that the order entered
at that hearing can be viewed in the light of statistics and 
assertions not found in the record which have subsequently 
been raised in the briefs.

When the District Court was called upon to rule, it was 
presented with a record which contained two issues. One 
was the issue raisdcl by the general allegation that peti­
tioner had been discriminated against because of her sex.



i. Hj iA .-W  «.«

19

The other was the issue arising ont of tlie charge that 
petitioner had been discriminated against on September 
6, I960, because she was a woman with prescliool-age 
children.

There was no evidence in the record of any act of dis­
crimination by the respondent, the closest thing to it being- 
petitioner’s allegation that the receptionist had told her 
the respondent was not considering applications from 
women with preschool-age children. To rebut any in­
ference that there might be some policy of discouraging- 
female employjnent, respondent submitted an affidavit re- - 
fleeting its apparent preference for women at the time in 
question for the position aspired to by petitioner. (A. 
19a-20a) The petitioner elected not to present any counter­
affidavits—if indeed she - ould have—that respondent had 
acted in a discriminatory fashion.

It would appear, therefore, that the case reduced itself 
on summary .judgment to whether there was any issue of 
material fact raised in the record by the allegation of 
what petitioner was told by respondent’s receptionist. 
That allegation (A. 4a) standing by itself, and even taken 
as true for the purposes of the motion, does not state a 
claim within the meaning of Section 703(a). Standing- 
alone, the f ‘>ct that an employer declines to offer employ­
ment to women with preschool-age children does not con­
stitute a violation of the Act, and to be such, must neces­
sarily be coupled with a comparison of the treatment of 
males with preschool-age children at the relevant time. 
In this connection, it will be recalled that this is a refusal- 
to-hire case, and the relevant time would be the time at 
which the applicant applied foi employment—in this case, 
September G, I960. (A. 3a) A request that respondent ad­
mit, on June 26, 19G8, that respondent "now” employs



20

males with preschool-age children in the position of as­
sembly-trainee (A. 21a), even if answered in the affirma­
tive, would have no relevance to the petitioner’s case.

It is submitted, therefore, that on this view of the record, 
the District Court was correct in granting the motion for 
summary judgment.

2. From the material submitted in the briefs for the 
petitioner and the various amici—which, understandably 
in the light of the skimpy nature of the record in this 
case, rely almost exclusively on extra-record materials 
in this respect—it appears that there is a fairly wide­
spread practice in industry—particularly, assembly types 
of manufacturing industry where employee absence poses 
particular problems—of considering as a negative factor
in employing job applicants the fact that they are directly__
responsible for the supervision of small children too 
young to attend school.

Presumably people having custody of small children 
would not apply for work at all unless they had the pros­
pect of making some arrangements either with their 
spouse or other relative in the home, or with a baby-sitter 
in or outside the home, or with a day-care center, to take 
care of their children. But it appears that certain em­
ployers think that at least certain sorts of these arrange­
ments have a way of breaking down (or that they cannot 
provide custody where the child becomes sick or is too 
ill to leave the house or to be mixed in with other chil­
dren) ; that this is particularly so where employees must 
work different shifts in different weeks; and that accord­
ingly certain sorts of these custodial arrangements expose 
a person having 'custody of small children to a substan­
tial risk of absenteeism or other work interruption. Pre­
sumably this belief leads to the practice of considering



21

custody of small children as a negative factor in hiring. 
This practice, we may assume, takes different shapes and 
forms, and some of these forms may well pose problems 
under the provisions of the Civil Eights Act of 19G4 which 
prohibits discrimination in employment by reason of sex. 
The briefs of petitioner and of the amici range rather 
broadly and generally over the question of the way in 
which recognition of the factor of custody of a preschool- 
age child may he considered, consistent with that Act.

Thus, the brief for petitioner at one point (Pet. Br. 9) 
appears to assert that even a discrimination against all 
married people, of either- sex, on the one hand, as opposed 
to single people, on the other, or against all people with 
children, on the one hand, in favor of people without chil­
dren on the other, is justifiable under the Act only where 
business interests are shown to require the same. This 
view we suppose to be erroneous inasmuch as the Act 
does not purport to protect a particular marital or 
parental status against unequal treatment in employment 
at all. In another place (Pet. Br. 12), the petitioner ap­
pears to make a contention to the effect that an employ­
ment rule which discriminated against any parent who 
was sole, parental custodian of a preschool child, whether 
that custodian is a man or woman, would be violative of 
the Act because it would tend in practice to restrict “ em­
ployment opportunities for those groups of women who 
most need jobs because of economic necessity,” presum­
ably, because as a practical matter it would mainly affect 
them. Whatever the economies of the matter, that such a 
rule would be impermissible under the statute is far from 
evident.

t
At a furthei- point in her brief, petitioner makes the 

suggestion that the “primary adverse impact [of any rule 
tending to restrict employment of parental custodians of



22

preschool-age children] is on blacks.” (Pet. Br. 13) Fur- 
thci economic material outside of the record is introduced 
in the brief at this point in support of this proposition. 
We should observe that there is no evidence whatsoever, 
nor was there any charge in the complaint, that respondent 
engages in lacial discrimination. Indeed, petitioner care­
fully refrains from suggesting that she is black herself 
and the record shows she is not (Tr. of Hearing on Defen­
dant’s Motion to Strike, p. 25; unprinted record p. 200).1

Again, the briefs of the amici address themselves to 
practices and issues not presented by the record. Thus, the 
brief of “Human Rights for Women, Inc.” (II.R. Br. 9-10) 
essays an elaborate model of what sort of rule or practice 
in this area might be consistent with the Act. It suggests 
that there would have to be a rule which was not only 
neutral on its face, that is, applicable to all single (includ­
ing divorced and widowed) parents of preschool-age chil­
dren regardless of sex, but also neutral in its operation. 
A  rule, according to this amicus, would not be neutral in 
its operation if more women than men were affected by it, 
i.e., if more women than men were sole parental custodians 
of preschool-age children. Of course, since everyone knows 
that this is so, there could not be any employer considera­
tion whatsoever of custody of preschool-age children under 
the Act, and the fact that, as here, a very high percentage 
of the women applying were employed for the categories

1 Perhaps in an effort to introduce the same extraneous factor 
into this case, the brief for the United States makes an argument 
based on the following premise: “An employer’s refusal to hire 
otherwise qualified Negroes with pre-school age children, while hir­
ing whites with such children, is obviously proscribed.” (Gov’t 
Br, Id) "\\ e do not understand the relevancy of this assertion to 
this case at all. If it is an attempt to assert that no differences 
matf  be recognized between the sexes that are not recognized be­
tween the races under the Act, wc would suggest that °it contra­
venes the legislative history of the Act as well as common ex­
perience.



23

in question would not be relevant to refute the inference 
of discrimination. We see no basis for the conclusion that 
the abstract position suggested by this amicus is correct.

In a similar category may be placed the apparent sug­
gestion by the United States that an employer should not 
be permitted to draw a distinction, neutral as to sex, be­
tween parents with custody of preschool-age children who 
have other responsible adults resident in the house, on the 
one hand, and those, who have to rely-upon day-care 
centers, on the other. (Gov’t Br. 5) Once again, there is 
nothing in the Act about discrimination in hiring as 
between parents who have other adults resident in their 
households to take care of preschool-age children and those 
who must make other arrangements, and accordingly, it is 
hard to square this position with the text of the Act.

3. The generality of the assertions by the petitioner and 
amici of what is or is not permissible in the area of the 
extent to which an employer may recognize the factor of 
custody of preschool-age children, as well as the rather 
general and abstract discussion in the opinion of the Court 
of Appeals, is, we regret to say, apparently the conse­
quence of the present state of the record. For that state, 
respondent’s motion for summary judgment was, we admit, 
primarily responsible. That state is simply that a recep­
tionist told petitioner that “ women with pre-school age 
children” were not being considered for employment. The 
.affidavit in support of respondent’s motion for summary 
judgment, the answers of respondent to petitioner’s in­
terrogatories and this conclusionary sentence are the only 
evidence in (lie record of what respondent’s policy is.2 To

2 There is no direct evidence dealing specifically with respon­
dent’s policy as to hiring men with custodial problems caused by 
preschool-age children.

I !



24

be sure, as a practical matter, whatever may be the 
technical state of the record, the receptionist’s remark 
cannot and should not be considered as equivalent to a 
written, formal, inflexible company policy that no woman 
with a living preschool-age child would be employed as an 
assembly-trainee. We do not have direct evidence in the 
record to show with specificity what the response of the 
receptionist—or of a more responsible level in the com­
pany, if the matter had been pursued—-would have been 
if Mrs. Phillips had said one of the-following things:

a. “While I have a preschool-age child, I am 
divorced and custody of that child was awarded to my 
husband.”

b. “ While 1 have a preschool-age child, my husband 
is disabled and spends his time at home but is capable 
of taking care of the child during my shift and does 
so.”

c. “ While I have custody of a preschool-age child, 
my husband is unemployed at home and takes care of 
the child during my shift.”

d. “ While I have custody of a preschool-age child, 
and while I am divorced (or while my husband works 
during my shift), my widowed mother lives with me 
(us) and takes care of the child.”

In any of these cases, for all we know, the receptionist 
might have answered “ That is different” ; or that con­
clusion might have been reached after she checked the 
matter out. Of course, we also do not know on the present 
record whether Mrs. Phillips was in a position to make 
any of those statements.

I



25

Again, Hie petitioner, the amici and the Court of 
ppeals have treated tlie present state of the record as 

technically standing that, simply, men with preschool-age 
children were not disqualified from being employed as 
assembly-trainees. However, we question whether as a 
practical matter any court should assume that if it became 
evident during the employment interview that a male 
employee—for example, a widower-had sole custody of 
small children living alone with him, so that he would be 
missing from the assembly line if his outside babysitting 
arrangements broke down, such an applicant would be 
bbthely hired by respondent while it was disqualifying 
women under similar circumstances. It would take an 
affirmative prejudice,..in the classic sense, against women 
for an employer to do that. The very high percentage 
of women actually hired for the job in question-which 
indeed appears to be a sort of small-part assembly job that 
women are commonly supposed (o excel at— indicates tha<
“  ° .Pract,cal ma,ter "O s«cl> prejudice exists, and tl.at a 
discrimination in favor of the mole applicant in the case 
put would not have been practiced.

4. The fact of the matter is, however, that the present 
record affords no real basis, by way of evidence bearing 
directly on those points, for determining what in fact 
would have been the respondent’s reaction under any of 
the eases we have put. And the record has been left with­
out direct evidence as to whether respondent would ever 
consider a father’s custodial problems with respect to pre- 
school-age children as a negative factor in hiring. To be 
sure, these deficiencies in the record are in substantial 
part due to the grant of the motion which respondent itself 
made for summary judgment-allhough petitioner herself 
developed no details about these matters, or, indeed, about

i  ■ - 
I

I



26

her cn™ status, presumably preferring to have the state 
oi the record left on a per se basis.

As this case comes before tins Court on review of the
grant of summary judgment, it is made to appear by the
petitioner and the amici—particularly in light of some of
the language of the Court of Appeals in its op in ion -
bat, as a technical matter, respondent had an inflexible 

policy:

A. that women with preschool-age children would not 
,ei“ pl0yed at aU> notwithstanding the eircumstances- 

that is, even if the woman did not have custody of the 
c n  dren, or if she did, even if there was a responsible 
adult, including her husband, resident in the household
and at home during the day to take care of the children- 
and ’

5' t]mt no inan with a preschool-age child, however 
great the custodial problems that child imposed on him 
(as, lor example, in the widower case above), would be 

--disqualified or adversely rated in hiring on that account.

AVe must agree that such a practice would constitute a 
discrimination based on sex which would be prohibited 
by the ActP The present record, because of the summary 

of the proceedings in (be District Court, appears 
o have mvited the conclusion that it presents that rather 
ec mical issue. But because of the somewhat abstract 

nature of the record as developed, including (he absence

» Unless justified under the “ bona fide occupational cm-difien 
tion provision. Because of the erant of smnimw i ' Ca



27

of any specific information as to what exceptions would 
bo made to the attitude expressed by the receptionist, as 
to under what circumstances a disqualification of fathers 
with custody would have been imposed, and as to the lele- 
vance of Mrs. Phillips* own domestic condition to 'what­
ever exact shape the respondent’s policy would appear to 
have upon a full examination, it affords no real basis for 
examining any other question as to the permissibility of 
the consideration of the factor of custody ol young chil­
dren in employment under the. Act.

To he sure, respondent defended the judgment before 
the Court of Appeals and prevailed there. But the highly 
general theory of the Court of Appeals, which may have 
been induced by the meager facts of record, may not be 
capable of defense in a number of the instances postu­
lated by the petitioner and the amici. Our further review 
of the record in this matter leads us to the conclusion 
that the disposition of the case by summary proceedings 
in the District Court, at our instance and upon our motion 
— although defensible—may have created a basis for con­
fusion—and perhaps even distortion—of the important 
principles of the provisions of the Civil Rights Act of 
1964, which prohibits discrimination in employment by- 
reason of sex. Indeed, as illustrated by the briefs of the 
petitioner and her amici, some portions of the opinion of 
the Court of Appeals may be subject to the construction 
that the law permits women and men exactly similarly 
situated with respect to problems arising out of the cus­
tody of small children to be treated differently, which we 
concede the law does not permit.

Accordingly, if this Court should conclude that grant 
of summary judgment, on our motion, by the District- 
Court on the meager record before it, has given rise to

i
1

l



28

improper inferences ns to the meaning and construction 
of the provisions of the. Act prohibiting discrimination in 
employment on the basis of sex, this Court might then 
conclude that to avoid confusion and misconstruction of 
the important principles involved in the Act, the judg­
ment of the Court of Appeals should be reversed and the 
case remanded to the District Court to vacate its judg­
ment and order entered July 9, 19GS, and for further 
proceedings to cause the record to reflect precisely and 
with appropriate particularity what the hiring practices 
and policies of respondent were in all relevant respects, 
and whether they violated the Act. We would assume that 
it would be open on such a remand for respondent to 
undertake to show—if appropriate under the circum­
stances— that its acts complained of were based upon a 
reasonable business necessity. We would assume that it 
would also be open for respondent fo show, if it can, that 
if its actual practice did amount to a discrimination on 
account of sex, that discrimination—that is, any precise, 
way in which its policy as to parents having custody of 
small children differed as between mothers, on the one 
hand, and fathers, on the other—was based upon a bona 
fide occupational qualification, that is, a reason justifiable 
in business terms for the specific difference in treatment,“ 
and that it would not be prejudiced in this respect, by the 4

4 Pertinent to any such defense would be reference and statistical 
material such as the Public Health Service’s analysis of data that 
women with children are more likely to have a higher fjequcncy 
of absences:

“ This observation supports the contention that women’s com­
mitment to the family constellation results in higher fre­
quencies of absence. Mothers are, at. least- theoretically, moie 
often faced with role conflict than are women withoul children.



*

fact that it does not assert that there is any bona fide 
occupational qualification to exclude women as such from 
the position in question.5

29

CONCLUSION

For the reasons stated, the petition for certiorari was 
not filed within the time provided by law and the writ of 
certiorari should be dismissed. Should the Court disagree 
with this conclusion and reach the merits, respondent 
recognizes the importance of the principles of law raised 
by petitioner, the various amici and the Court of Appeals 
relating to the proper scope of Title VII, and recognizes 
that it is important that they not be confused or misinter­
preted. However, respondent submits that this case pre­
sents a narrow issue on a limited record which neither 
requires nor provides an appropriate background for the 
decision of the issues tendered by petitioner and the amici. 
For the reasons stated, therefore, we respectfully submit 
that the grant of summary judgment by the District Court,

Thus the roles of worker and mother come into conflict, and 
the result is the dominance of the mother role with the worker 
role supported by recourse to absence behavior Faeken- 
heimer, Demographic and Job Characteristics \
Absences for Illness, appearing m S3 1 ublic Iicahh Kcpoits 
(Public Health Service, Department of Health, D ducat ion and 
Welfare) 1029,1031 (1968).

A similar increase in absenteeism among women with small chil­
dren has been reported in other countries bee eg  Uandieit- 
Jamati, Absenteeism Among 11 omen 11 o i l as  xn Industry, 
L X X X V  International Labour Review 2-18, 2o2 (196^).

5 As, indeed, it could not and does not, since approximately 80% 
of the employees in the! category are women.

t ;  -.*•



30

on the record before it, was correct and that the judgment 
o f the Court of Appeals which upheld it should he affirmed.

Respectfully submitted,

W illiam  Y. A  kerman  
D onald T . S entehitjt 

Suite 506
First National Bank Building 
P. 0. Box 231 
Orlando, Florida 32802

P aul  A . P orter 
V ictor II. K ramer 
D e n n is  G. L yons  
J ames A . D obkin

1229 Nineteenth Street, N.W. 
Washington, D. C. 20036

' Attorneys for Respondent

Of Counsel:

Clark  C. V ogel .
New York, New York

J am es T . E llison  
Baltimore, Maryland

J. T hom as Cardwell

G eorge T. E dison, Jr.
D avid J. F uller

■a Orlando, Florida > 
f

A rnold & P orter 
Washington, D. C.

May, 1970