Phillips v. Martin Marietta Corporation

• Decision Date: 26 May 1969
• Docket Number: No. 26825.,26825.
• Citation: 411 F.2d 1
• Parties: Ida PHILLIPS, Plaintiff-Appellant, v. MARTIN MARIETTA CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

411 F.2d 1 (1969)

Ida PHILLIPS, Plaintiff-Appellant, v. MARTIN MARIETTA CORPORATION, Defendant-Appellee.

No. 26825.

United States Court of Appeals Fifth Circuit.

May 26, 1969.

Reese Marshall, Jacksonville, Fla., for appellant.

David R. Cashdan, Philip B. Sklover, Attys., Daniel Steiner, Gen. Counsel, Russell Specter, Asst. Gen. Counsel, Equal Employment Opportunity Commission, Washington, D. C., amicus curiae.

J. Thomas Cardwell, George T. Eidson, Jr., J. Thomas Cardwell, of Akerman, Senterfitt, Eidson, Mesmer, Robbinson & Wharton, Orlando, Fla., for appellee.

Before GEWIN, McGOWAN^* and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

The present action is before us on an appeal from the granting of a motion for summary judgment by the District Court. The original complaint under Section 706(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e), alleged that appellee Martin Marietta Corporation had violated Section 703, 42 U.S.C. § 2000e-2 when it wrongfully denied appellant Phillips employment because of sex. An ancillary issue raised concerns the propriety of the District Court's allowing the appeal in forma pauperis conditioned on appellant Phillips' reimbursing the United States in the event of an unsuccessful appeal.

Ida Phillips, the appellant, submitted an application for employment with the appellee, Martin Marietta Corporation, for the position of Assembly Trainee pursuant to an advertisement in a local newspaper. When Mrs. Phillips submitted her application in an effort to gain employment, an employee of Martin Marietta Corporation indicated that female applicants with "pre-school age children" were not being considered for employment in the position of Assembly Trainee. However, males with "pre-school age children" were being considered. A charge was thereafter filed with the Equal Employment Opportunity Commission alleging that plaintiff-appellant's rights under Title VII of the Civil Rights Act of 1964,¹ had been violated. The Commission found reasonable cause to believe that defendant Martin Marietta Corporation had discriminated on the basis of sex, and plaintiff filed a class suit in the District Court.

The District Court granted a motion to strike that portion of the complaint which alleged that discrimination against women with pre-school age children violated the statute, and it refused to permit the case to proceed as a class action. The complaint was not dismissed, however, and it was left open to plaintiff to submit evidence to prove her general allegation that she had been discriminated against because of her sex.

Defendant then moved for summary judgment, supported by an uncontroverted showing that, while 70 to 75 percent of those who applied for this position were women, 75 to 80 percent of those holding the positions were women. Defendant claimed that this established that there was no discrimination against women in general, or against plaintiff in particular. The Court granted the motion on the ground that there were no material issues of fact which would support a conclusion of discrimination on the basis of sex.

The primal issue presented for consideration is whether the refusal to employ women with pre-school age children is an apparent violation of the 1964 Civil Rights Act's proscription of discrimination based on "sex". The pertinent portion of the Act, 42 U.S.C. 2000e-2, reads as follows:

(a) It shall be 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 race, color, religion, sex or national origin.

The defendants do not choose to rely on the "bona fide occupational qualification" section of the Act,² but, instead, defend on the premise that their established standard of not hiring women with pre-school age children is not per se discrimination on the basis of "sex".

The question that confronts us is a novel one upon which the courts have been asked to rule only on a few occasions. However, none of the cases reviewed by this Court deal with the specific issue presented here. In the case of Cooper v. Delta Airlines, Inc., 274 F. Supp. 781 (E.D.La., 1967), appeal dismissed, No. 25,698, 5 Cir., Sept. 1968 the District Court held that an airlines hostess who is fired because she was married has not been discriminated against on the basis of sex. However, Delta did not consider men for the positions in question, and therefore, unlike the case sub judice, the discrimination was between different categories of the same sex. Recently the Fifth Circuit was called upon to review a problem of a kindred nature in Weeks v. Southern Bell Telephone & Telegraph Co., 5 Cir., 1969, 408 F.2d 228. However, that case is inapposite to the case at bar in that the defendant in Weeks, supra, established its defense on the "bona fide occupational qualification", rather than relying solely on 42 U.S.C. 2000e-2(a) (1).

The position taken by the Equal Employment Opportunity Commission is that where an otherwise valid criterion is applied solely to one sex, then it automatically becomes a per se violation of the Act. In its argument, the defendant outlines the proposal that before a criterion which is not forbidden can be said to violate the Act, the court must be presented some evidence on which it can make a determination that women as a group were treated unfavorably, or that the applicant herself was singled out because she was a woman. However, neither litigant is able to present substantive support for its theory. Both cite selected sections from the congressional history of the bill; however, a perusal of the record in Congress will reveal that the word "sex" was added to the bill only at the last moment and no helpful discussion is present from which to glean the intent of Congress. To buttress its position, the Commission cites to its own regulations; however, it is well established administrative law that the construction put on a statute by an agency charged with administering it is entitled to deference by the courts, but the courts are the final authorities on issues of statutory construction. Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 88 S.Ct. 929, 19 L.Ed.2d 1090 (1968).

We are of the opinion that the words of the statute are the best source from which to derive the proper construction. The statute proscribes discrimination based on an individual's race, color, religion,...