Weeks v. Southern Bell Telephone & Telegraph Company

• Decision Date: 28 March 1969
• Docket Number: No. 25725.,25725.
• Parties: Mrs. Lorena W. WEEKS, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellee. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellant, v. Mrs. Lorena W. WEEKS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

408 F.2d 228 (1969)

Mrs. Lorena W. WEEKS, Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellee.

SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Appellant, v. Mrs. Lorena W. WEEKS, Appellee.

No. 25725.

United States Court of Appeals Fifth Circuit.

March 4, 1969.

Rehearing Denied March 28, 1969.

Sylvia Roberts, Baton Rouge, La., Marguerite Rawalt, Arlington, Va., for appellants.

David J. Heinsma, Augusta, Ga., Hull, Towill & Norman, Augusta, Ga., of counsel, for appellee.

Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge:

This appeal and cross-appeal present important unsettled questions concerning the proper interpretation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Mrs. Lorena W. Weeks brought this suit against her employer, Southern Bell Telephone & Telegraph Company (hereinafter Southern Bell) pursuant to 42 U.S.C. Sec. 2000e-5(e). Mrs. Weeks, an employee of the Company for 19 years, claims that the Company's refusal to consider her application for the position of switchman constituted discrimination based solely on sex, in violation of 42 U. S.C. Sec. 2000e-2. She prayed that she be awarded the position and damages and that Southern Bell be permanently enjoined from such unlawful employment practices.

The record reveals that Mrs. Weeks submitted her bid for the job of switchman on March 17, 1966. On April 18, 1966, the Company returned her bid with a letter advising her that it had decided not to assign women to the switchman's job. On June 2, 1966, Mrs. Weeks filed a written but unsworn charge with the Equal Employment Opportunity Commission (hereinafter the Commission). A representative of the Commission secured a sworn charge from Mrs. Weeks on July 30, 1966. After investigation of the facts and analysis of the duties of the position of switchman, the Commission decided that there was reasonable cause to believe that the Company had violated the Act. Mrs. Weeks was informed on April 19, 1967, that conciliation efforts with Southern Bell had failed and that she had 30 days within which to file suit. As authorized by Section 2000e-5(e) of the Act, the District Court relieved Mrs. Weeks of the payment of costs and appointed counsel for her. Counsel filed suit on her behalf on May 18, 1967.

I

The Company moved to dismiss or in the alternative for summary judgment on the theory that since the alleged unlawful practice occurred on April 18, 1966, and a sworn charge was not filed with the Commission until July 30, 1966, the requirements of Section 2000e-5(a) and (d)¹ that the sworn charge be filed within 90 days had not been met and the District Court lacked jurisdiction. The contention that the District Court's overruling of this motion was error is the basis for the Company's cross-appeal.

The District Court, in effect, sustained the validity of a Commission regulation which permits amendments to the charge more than 90 days after the unlawful practice, in this case on July 30, 1966. 29 C.F.R. 1601.11(b) provides:

"Notwithstanding the provisions of paragraph (a) of this section, a charge is deemed filed when the Commission receives from the person aggrieved a written statement sufficiently precise to identify the parties and to describe generally the action or practices complained of. A charge may be amended to cure technical defects or omissions, including failure to swear to the charge, or to clarify and amplify allegations made therein, and such amendments relate back to the original filing date."

The Commission has filed a brief amicus curiae urging that we sustain the regulation and affirm the District Court's holding on this point.

The only case supporting the Company's contention, Choate v. Caterpillar Tractor Co., 274 F.Supp. 776 (S.D.Ill. 1967), has since been overruled by the Court of Appeals for the Seventh Circuit, 402 F.2d 357. In a strongly-worded opinion, Judge Swygert held:

"We are of the view that the district court was in error in holding that its jurisdiction to entertain the suit depended upon whether the charge of discrimination filed with the Commission was under oath. Basic to our view is the fact that the `under oath\' requirement relates to the administrative procedures which are conducted by the Commission and which precede any court action. The statute gives the Commission no enforcement powers through the adjudicatory process. It allows the Commission only to investigate charges and attempt to gain compliance by informal methods of conference, conciliation, and persuasion. Enforcement of the rights of aggrieved parties resides exclusively in the federal courts. When the statute is thus considered, it is clearer that the requirement for verification of charges lodged with the Commission relates solely to the administrative rather than to the judicial features of the statute. We believe that the provision is directory and technical rather than mandatory and substantive."

We agree with the Seventh Circuit and with the Commission that a complaint in writing timely received may be amended after the 90-day period so as to meet the requirements of 42 U. S.C. Sec. 2000e-5(a).²

What Chief Judge Brown, speaking for this circuit, expressed in a similar context seems relevant here:

"The legislative history is silent on the requisites of the charge. This is not unusual since the charge is the catalyst which starts the informal conciliation proceedings of EEOC. It is in keeping with the purpose of the Act to keep the procedures for initiating action simple. * * * For a lay-initiated proceeding it would be out of keeping with the Act to import common-law pleading niceties to this `charge,\' or in turn to hog-tie the subsequent lawsuit to any such concepts. All that is required is that it give sufficient information to enable EEOC to see what the grievance is all about." Jenkins v. United Gas Corp., 400 F.2d 28, 30 n.3 (5th Cir.1968).

Finally, while we think it is clear that the purpose of certain of the procedural requirements of Section 2000e-5 is to protect employers from unfounded charges and harassment, it is equally clear that the employer here was in no way bothered or prejudiced by the unsworn charge and that the employer did receive the protection envisaged by Congress. In its amicus brief the Commission makes clear that under its procedures unsworn charges are not served upon respondents and that the investigation does not commence until a sworn charge is served. On this question, the District Court is affirmed.

II

Turning to the merits we observe that there is no dispute that Mrs. Weeks was denied the switchman's job because she was a woman, not because she lacked any qualifications as an individual. The job was awarded to the only other bidder for the job, a man who had less seniority than Mrs. Weeks. Under the terms of the contract between Mrs. Weeks' Union and Southern Bell, the senior bidder is to be awarded the job if other qualifications are met. Southern Bell, in effect, admits a prima facie violation of Section 703(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a), which provides in pertinent part:

"(a) Employer practices.

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 compensation, terms, conditions, or privileges of employment, because of such individual\'s * * * sex * * *; or

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual\'s * * * sex, * * *."

Southern Bell's answer, however, asserts by way of affirmative defense that the switchman's position fits within the exception to the general prohibition of discrimination against women set forth in Section 703(e) (1), 42 U.S.C. Sec. 2000e-2(e) (1), which provides in pertinent part:

"(e) Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, * * * on the basis of his * * * sex, * * * in those certain instances where * * sex, * * * is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise, * * *" (Emphasis added.)

The job description of the post of switchman reads as follows:

"Engaged in the maintenance and operation of dial central office equipment, test, power, frame, switch, and other telephone equipment, including the locating and correcting of faults; making adjustments, additions, repairs, and replacements; performing routine operation tests, etc., and working with test-desk, field, and other forces connected with central office work. Also operates and maintains, including adjusting and making repairs to or replacement of, air conditioning equipment, and performing other work as assigned in accordance with local circumstances and the current needs of the business."

We think it is clear that the burden of proof must be on Southern Bell to demonstrate that this position fits within the "bona fide occupational qualification" exception. The legislative history indicates that this exception was intended to be narrowly construed.³ This is also the construction put on the exception by the Equal Employment Opportunity Commission.⁴ Finally, when dealing with a humanitarian remedial statute which serves an important public purpose, it has been the practice to cast the burden of proving an exception to the general policy of the statute upon the person claiming it. Phillips Inc. v. Walling, 324 U.S. 490, 493, 65 S.Ct. 807, 89 L.Ed. 1095 (1942).

The more important question that must be decided here, however, is the extent of the showing required to satisfy that burden. In the court below, Southern Bell contended that a bona...