Phillips v. Martin Marietta Corporation Motion for Leave to File and Brief Amicus Curiae

    IN THE

Supreme Court of the United States

October Term, 1969

No. 1058

IDA PHILLIPS,
Petitioner,

v .

MARTIN MARIETTA CORPORATION,
Respondent.

MOTION FOR LEAVE TO FILE A  BRIEF AMICUS 
CURIAE AND BRIEF AMICUS CURIAE FOR 
NATIONAL ORGANIZATION FOR WOMEN

JACOB D. HYMAN,
77 West Eagle St.,
Buffalo, N. Y. 14202,
KENNETH M. DAVIDSON, 
AL KATZ,
77 West Eagle St.,
Buffalo, N. Y. 14202,
Attorneys for Amicus Curiae.

F aith  A. Seidenberg,
1404 State Tower Bldg.,
Syracuse, N. Y. 13202,

Of Counsel.

BATAVIA TIMES, LAW PRINTERS,  
BATAVIA,  N Y.



INDEX.

PAGE

Motion and Interest of Amiens ..................................... 1
Statement of Case ............................................................  4
Argument ..........................................................................  5

I. The impact of tire decision below on the right of 
women to be free from discrimination in em­
ployment indicates Congress did not intend the 
result reached by the courts below........................ 5
a. The result is inconsistent with the overall

federal policy of enabling women to work. . . 5
b. The number of women who may be adversely

affected by the decision below indicates its in­
consistency with Congressional intent ............ 8

TT. The decision below is inconsistent with the lang­
uage of the statute and the interpretation of it by 
the courts to the extent it requires discrimination 
be directed against an entire class to constitute 
a violation of § 703(a) ............................................. 10

III. The order on remand should require Respondent
to justify its employment practice under § 703(e). 13

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

Table of Cases.

Allen Bradley Co. v. Local Union No. 3, 7. B. E. TT'., 325
XL -S. 797 (1945) ............................................................  0

Bing v. Roadway Express, Inc., 00 CCII Labor Cases
9232 (D. C. Ga.) (1908) ............................................... 12

Cooper v. Delta Airlines, Inc., 274 F. Rupp. 781
(1907) ..............................................................................9,10

Phillips v. Martin Marietta Corporation, 411 F. 2d 1
(1969) ...................................................................4 ,5 ,6 ,9,10

Phillips v. Martin. Marietta Corporation, 410 F. 2d 1257
(1969) ..............................................................................  3,4

Qvarles v. Philip Morris, 279 F. Rupp. 505 (1908)........ 12



i r .

PAGE

United States v. Local 189, United Papermakers and 
Paperworkers, 282 F. Supp. 39 (1968) . . . . . .  • • • • • •

Universal Camera Corporation v. National Labor Rela­
tions Board, 340 U. S. 474 (1951) . . . .  . . .  •• •••••••

Weeks v. Southern Bell Tel. <& Tel. Co., 408 F. 2d 228 
(1969) .............................................................................

12

6

5,14

Statutes.

5 U. S. C. § 7151........
42 U. S. C. § 630 ..........
42 U. S. C. § 2000e-2(a) 
42 IT. S. C. § 2000e-2(e)
42 U. S. C. $ 2711........
42 U. S. C. * 2728 ........
77 Stat. 5 6 ...................

..........  6

.......... 7
4.11,12,13 
...5 ,13 ,14
.......... 7
.......... 7
..........  6

R egulations.

29 C. F. R. 1604.1(2) .......................
(Proposed) 60 C. F. R. 60-20.3(b) . . 
33 Fed. Reg. 10026 ...........................

M iscellaneous.

1969 H andbook on W omen W orkers, U. S. Department
of Labor, Women’s Bureau Bulletin 294 ..............2, 3, 8, 9

Federal Fund for Day Care Projects, Women’s Bureau,
IT. S. Department of Labor (1969) .............................  ‘



IN TH E

Supreme Court of the United States

October Term, 1969

No. 1058

TDA PHILLIPS,

v.
Petitioner,

MARTIN MARIETTA CORPORATION,
Respondent.

MOTION FOR LEAVE TO FILE A  BRIEF AMICUS 
CURIAE AND BRIEF AMICUS CURIAE FOR 
NATIONAL ORGANIZATION FOR WOMEN

Having been denied consent to file a brief amicus curiae 
by the Martin Marietta Corporation, the National Organi­
zation for Women respectfully prays that the Supreme 
Court of the United States grant it leave to file a brief 
amicus curiae in the case of Ida Phillips v. Martin Marietta 
Corporation now before the court.

Motion for Leave to File a Brief Amicus Curiae 
and Interest of Amicus

The National Organization for Women (NOW) was 
founded in 1966 by women and men concerned by the 
personal and national losses resulting from discrimination 
against women. The purpose of the organization is “ to



take action to bring women into full participation in. the 
mainstream of American society, now, exercising all the 
privileges and responsibilities thereof in truly equal part­
nership with men. This purpose includes, but is not limited 
to, equal rights and responsibilities in all aspects of citizen­
ship, public service, employment, education and family life 
and it includes freedom from discrimination because of 
marital status or motherhood.”  (§2  of Chapter by-laws 
of National Organization for Women.)

In an effort to implement its goals the National Organi­
zation for Women has taken stands on and worked for the 
passage of an equal rights for women amendment to the 
United States Constitution, abolition of laws penalizing 
abortion, revision of state protective laws for women, and 
amendments to the Civil Rights Act of 1964 which would 
grant the Equal Employment Opportunity Commission the 
power to issue cease and desist orders.

In pursuing these goals NOW has solicited a broad 
membership guaranteeing the right to join regardless of 
race, color, sex, religion, national origin, age or economic 
status. The organization has over 50 chapters in more than 
24 states and a paid membership in excess of 3000.

The need for an organization to promote and protect the 
rights of women, and in particular working women, is 
clear. The 1969 H andbook on W omen W orkers (herein­
after H andbook) published by the Women’s Bureau of the 
United States Department of Labor, reports that while 
sixty-five percent of the growth of the national labor force 
since 1940 has been due to the increase in number of women 
workers (H andbook p. 5), the incomes of women working- 
full time is not only less than two-thirds of that earned 
by men working full time, but also the gap between men 
and women’s income widened during the period between



3

1956 and 1966 (H andbook pp. 133-4). Despite the passage 
of the Equal Pay Act of 1963 and Title VII of the Civil 
Rights Act of 1964, the trend in favor of discrimination 
does not appear to be abating.

In this context the case of Ida Phillips v. Martin Marietta 
Corporation now before the court is of immense impor­
tance. As stated by Chief Judge Brown in his dissent 
from denial of rehearing and petitioner in his brief, if the 
decision of the United States Court of Appeals for the 
Fifth Circuit is upheld, “ the Act is dead,”  (416 F. 2d 1257, 
1260 (1969)) at least for women, and with it the rights 
of women will have been severely curtailed.

In their briefs recpiesting writ of certiorari petitioner 
and the United States have expressed overriding concern 
for the preservation of the entirety of Title VII. They 
understand that the decision below would undermine the 
efficiency of Title VII with regard to racial, religious and 
national origin, as well as sexual discrimination. For this 
reason neither petitioner nor the United States has devoted 
its full attention to the issue of sex discrimination. Neither 
has, for example, explored the effects of the decision below 
on other governmental projects, such as day care centers 
and work incentive programs, which are designed to assist 
and encourage mothers with preschool children to seek and 
maintain employment.

NOW, representing a more narrow institutional interest 
than either petitioner or the United States, is primarily 
concerned with women’s freedom from sex discrimination. 
The direct importance of the case to the 14.4 million 
mothers with preschool children and the implications for 
all American women require the fullest possible considera­
tion of the issues. NOW, as an organization dedicated to



4

the equality of women, therefore requests leave to file a 
brief amicus curiae in the case of Ida Phillips v. Martin 
Marietta Corporation.

Respectfully submitted,

JACOB D. HYMAN,
KENNETH M. DAVIDSON, 
AL KATZ,
77 West Eagle St.,
Buffalo, N. Y. 14202,
Attorneys for Amicus Curiae.

F aith A. Seidenberg,
1404 State Tower Bldg.,
Syracuse, N. Y. 13202,

Of Counsel.

Statement of Case

The question before the Court is whether an employer 
may escape the prohibitions against discriminating on the 
basis of sex contained in Title VII of the Civil Rights Act 
of 1964 when it refuses to hire women with preschool 
children while at the same time it hires men with preschool 
children.

The pertinent provision of the Act states: “ It shall be 
an unlawful employment practice for an employer . . .  to 
. . . refuse to hire . . . any individual . . . because of 
such individual’s . . . sex.’ ’ (§ 703(a) of Civil Rights Act 
of 1964, (42 U. S. C. 2000(e)-2(a)).

In reviewing petitioner’s claim, the Court ot Appeals 
below stated:

“ 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”  (411 F. 2d 1 at 4 (1969)).



The Court concluded that the hiring practices of Martin 
Marietta were permissible because they only discriminated 
against a sub-class of women, “ i.e., a woman with preschool 
age children”  (411 F. 2d 1 at 4 (1969)). The effect of these 
two statements is that a prima facie violation of the Act 
cannot be established unless an employer denies employ­
ment to all women.

Thus the initial issue before the court is vot whether the 
respondent has violated the Act (although there may be 
sufficient facts to make such a determination) nor is the 
issue whether the Act envisions circumstances in which 
men and women may be lawfully treated differently. 
Rather, the initial issue before the court is whether a prima 
facie case of discrimination exists against the employer 
when he imposes conditions to the hiring of persons of 
one sex that are not applied to persons of the other sex. 
Once the complainant has established a prima facie case 
of discrimination, the burden then shifts to the employer 
to show that “ sex . . .  is a bona fide occupational qualifica­
tion reasonably necessary to the normal operation of that 
particular business or enterprise.”  § 703(e) of the Civil 
Rights Act of 1964, 42 U. S. C. §2000e-2(e). Weeks v. 
Southern Bell Tel. & Tel. Co., 408 F. 2d 228 at 232 (1969).

ARGUMENT

I. The impact of the decision below on the right of 
women to be free from discrimination in employment indi­
cates Congress did not intend the result reached by the 
courts below.

a) The result is inconsistent with the overall federal policy 
of enabling women to work.

As the Court below recognized, “ it is well established 
administrative law that the construction put on a statute



G

by an agency charged with administering it is entitled to 
deference by the courts . . . ”  (411 F. 2d 1, 3 (1969)). It 
is also well recognized that in construing the provisions 
of an act the courts should look to the provisions and inter­
pretations of related acts, (Universal Camera v. NLRB, 
340 U. S. 474 (1951)) and should take into account the 
impact of its interpretation upon related acts. Allen Brad­
ley Co. v. Local Union No. 3, 1BEW, 325 XL S. 797 (1945).

The sex discrimination provisions of the Civil Rights 
Act of 1964 are only a part of the federal statutory scheme 
designed to prohibit discrimination against women in em­
ployment and promote growth and stability in the national 
labor force. In the Equal Pay Act of 1963 the Congress 
specifically declared that “wage differentials based on sex 
. . . depress wages and living standards . . . prevent the 
maximum utilization of . . . labor resources . . . burden 
commerce . . . and constitutes an unfair method of com­
petition.”  77 Stat. 56 (1963). After the passage of the 
Civil Rights Act of 1964 the Congress reaffirmed that 
” [i]t is the policy of the United States to insure equal 
employment opportunity for employees without discrimina­
tion because of . . . sex . . . ”  5 U. S. C. §7151 (1966) 
and directed the President to use his powers to implement 
the policy. By executive order the President charged the 
Secretary of Labor with the responsibility of ensuring 
that contractors with the United States take affirmative 
action so that they null not discriminate on the basis of 
sex (Executive Order 11375) and the Civil Service Com­
mission with the responsibility of ensuring equal oppor­
tunity for women in federal employment (Executive Order 
11478).

Beyond the affirmative action involved within the scope 
of the executive orders the Congress has specifically re-



I

quired that vocational training programs such as the Job 
Corps be open to female applicants (42 IT. S. C. §2711) 
and reinforced its determination in the case of the Job 
Corps by amending the statute to mandate a minimum 
percentage of females in the program (42 U. S. C. § 2728 
(b )). The regulations issued under Work Incentive Pro­
gram (42 U. S. C. §630 et seq. (1967)), provide vocational 
training for mothers who are receiving or might in the 
future receive public assistance, and provide day care cen­
ters for their preschool children (33 Fed. Reg. 10026 
(1968)). The federal government sponsors at least four­
teen other programs which help finance child care centers 
as well as five programs to train day care personnel and 
four programs for experimentation designed to improve 
child care.1

National policy to ensure equal employment opportunity 
for all women, including mothers with preschool children, 
has been reflected in decisions concerning the interpreta­
tion of sex discrimination prohibitions. It is not only the 
EEOC which has determined that refusal to hire women 
with preschool children is discrimination based on sex. The 
Labor Department has issued proposed regulations on the 
same question:

“ An employer should not deny employment to women 
with children . . . unless it has similar exclusionary 
policies for men . . . ”  (60 C. F. R. 60-20.3(b)).

This determination should also be given deference in deter­
mining what constitutes discrimination against women.

Equally important are the effects of the decision below 
upon the affirmative Acts which are designed to train women 
workers and facilitate their employment. It is against

1 See, Federal Fuads for Pay Care Projects. Women’s Bureau, U. S. De­
partment of Labor.



8

common sense to suppose that Congress would guarantee 
equal employment opportunity to women, provide for train­
ing of women workers, provide support for day care cen­
ters, yet intend to allow employment discrimination against 
women with preschool children.

b ) The number of women who may be adversely affected 
by the decision below indicates its inconsistency with 
Congressional intent.

In 1968, 29,204,000 women were in the labor force and 
constituted over 37% of the labor force in the United 
States. H a n d b o o k  p. 9. The following table outlines 
selected personal characteristics of women who were in 
the labor force in 1967.

Selected Characteristics of Women in the
Labor Force2

Number in Percent of total
millions women in

Characteristic (000,000) labor force
Total Women in Labor Force 27.5 100.0%

Single 5.9 21.5
Married 17.5 63.5

Husband present 15.9 57.8
Husband absent 1.5 5.7

Widowed 2.5 7.0
Divorced 1.6 6.0
Mothers in the labor force 

with children under 18 9.7 35.2
with children under 6 3.7 13.4

Child Care Arrangement of Working Mothers 
with Children under 6 by percent3

Care in child’s own home 47%
by father 14.4%
by others 32.6%

Care outside child’s home 53%
2 Source, H andbook  pp. 23 and 48 (Tables 7 and 21). Totals may not 

add exactly due to rounding.
s Source, H andbook  p. 49 (Table 22).



9

The decision below would permit any employer to refuse 
to hire any of the 3.7 million mothers with children under 
six who are currently in the labor force as well as the 
additional 10.7 million mothers with children under six 
potentially in the labor force.4 The decision takes note of 
“ the differences between the normal relationships between 
working fathers and working mothers to their preschool 
age children . . . ” (411 F. 2d 1 at 4 (1909)) but does not 
require the employer to justify his employment practice 
either in terms of the needs of the business or in terms of 
the disability of the applicant. The rule does not take into 
account that over 10% of working women are heads of 
families ( H a n d b o o k  p. 128, Table 56). Nor does the deci­
sion take into account that in families where mothers work, 
almost 15% of their husbands care for the children while 
the mothers work (see chart above). The decision below 
simply says that Title VTT of the Civil Rights Act of 1904 
affords no protection to women with preschool children.

Tn support of its position that mothers with preschool 
children fall outside the Act, Respondent in its brief in 
opposition to the writ of certiorari cites the case of Cooper 
v. Delta Airlines, Inc., 274 F. Supp. 781 (1907), for the 
proposition that women who are married may be refused 
employment on the basis of their marital status without 
violating the Act. While the 5th Circuit below charac­
terized that case as one which permitted employers to 
refuse to hire all married persons, Respondent's reliance 
upon it indicates the inevitable implications of the decision 
below. Tf an employer need not explain or justify why 
women with preschool children are refused employment, if 
the employer need only link femininity with some other 
characteristic to avoid the Act, then employers who refuse 
to hire women who are married must also be outside the

4 Interpolation from H andbook  p. 30 (Table 16).



10

scope of the Act. Unlike the determination in Cooper v. 
Delta Airlines, Inc., supra, there is no requirement that 
the rule apply without regard to sex.

The effect of removing the protection of the Act from 
married women would be to deny equal employment oppor­
tunity to over 63% of the women in the labor force (see 
chart above). Over seventeen million Americans currently 
in the labor force would then be subject to discrimination 
on the basis of a characteristic—being women—which they 
are born into, but which bears no relation to their ability 
to perform the work desired by the employer.

Under the reasoning of the court below any of the 
selected characteristics listed in the chart above could be 
used to avoid the prohibition on sex discrimination of the 
Civil Rights Act of 1964. The Court of Appeals decision 
allows an employer to discriminate so long as he hires 
some class of women without regard even to the size of 
that class. It is not reasonable that the Congress would 
have passed an act with such limited effect. There is no 
evidence that this was their intention and such futility 
should never be presumed.

II. The decision below is inconsistent with the lan­
guage of the statute and the interpretation of it by the 
courts to the extent it requires discrimination he directed 
against an entire class to constitute a violation of § 703(a).

The Court of Appeals below stated:

“ 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” (411 U. 2d l 
at 3-4 (1969)).



1 1

This means that the employment practice must apply to 
the entire class, all women, before a violation of § 703(a) 
can be established. Such an interpretation does not make 
sense as it would allow a company to refuse to hire women 
who are under sixty-five (no discrimination on the basis 
of sex) or refuse to hire Italian men who are single (no 
discrimination on the basis of national origin) or refuse to 
hire Jews who do not have PhD’s in nuclear physics (no 
discrimination on the basis of religion) or, refuse to hire 
blacks who are not over six and a half feet tall (no dis­
crimination on the basis of race or color). The fact that 
such results would strip the statute of practical meaning 
should have indicated there was a problem in the Fifth 
Circuit’s reading of the statute.

If the statute were to read—employment discrimination 
against all women shall he unlawful— , then it might be 
an open question whether the intent of the statute was 
to prohibit “ discriminations only when they apply to all 
women” or to prohibit “ all discriminations against each 
and every women that was based on her femininity.” 
§ 703(a) of the Civil Rights Act of 1964, however, did not 
frame the statute in that manner. The statute states that 
it is unlawful to refuse to hire an individual “because of 
such individual’s race, color, religion, sex or national 
origin.” The statute makes unlawfulness turn on the basis 
by which the employer distinguishes between the person 
hired and the person refused. Tf the difference between 
the person hired and the person refused is the individual’s 
race, color, religion, sex, or national origin, then the em­
ployment practice is unlawful. In Mrs. Phillips’ case, it 
is obvious that the basis of Martin Marietta’s refusal to 
hire her was her sex. The District Court found Martin 
Marietta “ does employ males with preschool children”



12

(Petitioner’s Appendix p. 23a). Martin Marietta refused 
to hire Mrs. Phillips because she had preschool children. 
The corporation’s rule distinguishes between applicants 
who have preschool children on the basis of the individual’s 
sex.

The Court of Appeals “ coupling” rationale ignores the 
terms of the statute. It fails to determine the basis on 
which the employer distinguishes between similarly situ­
ated applicants. Sex-plus hiring practices could only be 
held lawful if § 703(a) prohibited discrimination solely 
when it was practiced against an entire class. Such an 
interpretation is not only inconsistent with the words of 
the statute, it is also implicitly inconsistent with previous 
cases.

Because it had never been suggested, before the decision 
below, that § 703(a) covers only discrimination against 
entire classes, the courts have never explicitly ruled upon 
the question. Nevertheless decisions concerning the Act 
have consistently found violations where less than the en­
tire class was subject to discrimination. For example in 
Quarles v. Philip Morris, 279 F. Supp. 505 (1968), the 
court found a violation even though the discriminatory 
seniority system only affected blacks hired prior to pas­
sage of the Civil Rights Act of 1964. Cf. United States v. 
Local 18!) United Papermakers and Paperworkers, 282 F. 
Supp. 39 (1968), Bing v. Boadirag Express Inc., 60 COH 
Labor Cases 9232 (1968) (Not otherwise reported).

These cases were of course more difficult than the case 
now before the court. The cases dealt with rules that did 
not apply solely to blacks or even affect all black em­
ployees ; rather the rules primarily affected some black 
employees. Unlike the rule which barred Mrs. Phillips,



13

the rules in those cases were neutral on their face. Only 
after a factual determination were the rules characterized 
by the courts as being discriminatory and then only as to 
some black employees. It was not thought necessary and 
indeed would have been impossible to show that all black 
employees suffered from the rule. The only factual inquiry 
that is necessary is that the employer based his employ­
ment practice upon a forbidden criterion—race, color, 
religion, sex or national origin. Once such determination 
is made a prima facia case of discrimination is established.

The District Court determined that the Martin Marietta 
Corporation hired applicants with preschool children ex­
cept those of the female sex. This determination should 
have compelled the court to find that the Martin Marietta 
Corporation had engaged in an employment practice pro­
hibited by § 703(a) and constituted a prima facia viola­
tion of Title V II of the Civil Rights Act of 1904.

III. The order on remand should require Respondent 
to justify its employment practice under § 703(e).

Respondent may feel a determination that it has refused 
women employment in violation of § 703(a) is unjust be­
cause it has a high percentage of women employees. But 
such a determination does not preclude Respondent from 
showing that the use of sex as a hiring criterion is justi­
fied. § 703(e) of the Act specifically recognizes that an 
individual’s religion, sex, or national origin may be an 
appropriate hiring criterion in certain instances. For 
example sex is appropriate where the employment involves 
the portrayal of a member of one sex (29 C. F. R. 
1004.1(2)). Respondent has the opportunity to show that 
its hiring rule is “ reasonably necessary to the normal



14

operation of [its] business . . . ” (§ 703(e) of the Civil 
Rights Act of 1964, 42 IT. S. 0. § 2,000e-2(e)).

The Court of Appeals for the Fifth Circuit has set out 
the basic standard by which Respondent’s justification of 
its hiring practice should be judged in Weeks v. Southern 
Bell Tel. & Tel. Co., 408 F. 2d 228 (1969).

“ We conclude that the principle of nondiscrimina­
tion requires that we hold that in order to rely on the 
bona fide occupational qualification exception an em­
ployer has the burden of proving that he had reason­
able cause to believe, that is, a factual basis for be­
lieving, that all or substantially all women would be 
unable to perform safely and efficiently the duties of 
the job involved.” 408 F. 2d at 235.

Respondent should be required to prove that all or sub­
stantially all women with pre-school age children would be 
unable to perform the duties of the job involved.

Conclusion

For the foregoing reasons it is urged that the Court 
should reverse the ruling below.

R espectfully subm i tted,

JACOB D. HYMAN,

KENNETH M. DAVIDSON,
AL KATZ,
77 West Eagle Street,
Buffalo, N. Y. 14202,
Attorneys for Amicus Curiae.

F atth A. Seidenberg,
1404 State Tower Bldg.,
Syracuse, N. Y. 13202,

Of Counsel.



15

Certificate of Service

I, Jacob D. Hyman, attorney of record for Amicus 
Curiae, and a Member of the Bar of the Supreme Court 
of the United States, hereby certify that on the day of 
April, 1970, I served the requisite number of copies of the 
foregoing Brief upon Jack Greenberg, James M. Nabritt, 
ITT, Norman C. Amaker, William L. Robinson, Lowell 
Johnston, Velma Martinez Singer, 10 Columbus Circle, 
New York, New York 10019, and Earl M. Johnson, 625 
West Union Street, Jacksonville, Florida 32202, Attorneys 
for Petitioner and William Y. Akerman, Suite 506 First 
National Bank Building, P. 0. Box 231, Orlando, Florida 
32802, Attorney for Respondent and Erwin Griswold, 
Solicitor General, Department of Justice, Washington, D. 
C. 20025, by depositing the same in the United States mail, 
air mail postage prepaid, and properly addressed to them 
at the addresses given.

J

JACOB D. HYMAN, 
77 AVest Eagle St., 
Buffalo, N. l r. 14202.