Baker v. California Land Title Company, 71-2926-JWC.

• Decision Date: 01 May 1972
• Docket Number: No. 71-2926-JWC.,71-2926-JWC.
• Citation: 349 F. Supp. 235
• Parties: Robert E. BAKER, Plaintiff on behalf of himself and others similarly situated, v. CALIFORNIA LAND TITLE COMPANY, Defendant.
• Court: U.S. District Court — Central District of California

349 F. Supp. 235

Robert E. BAKER, Plaintiff on behalf of himself and others similarly situated, v. CALIFORNIA LAND TITLE COMPANY, Defendant.

No. 71-2926-JWC.

United States District Court, C. D. California.

May 1, 1972.

Andersson, Litt, Lund & Tockman, Elnora Beth Livezey, Los Angeles, Cal., for plaintiff.

Tremaine, Shenk, Stroud & Roberts, Los Angeles, Cal., for defendant.

MEMORANDUM OPINION

CURTIS, District Judge.

The plaintiff was discharged from his employment for wearing long hair. He contends that since women employees are permitted to wear their hair long, he is being discriminated against because of his sex, in violation of Civil Rights Act of 1964, Title 42 U.S.C. § 2000e-2(a). He brings this class action on behalf of himself and "past, present and future employees" similarly discriminated against. He seeks reinstatement and back pay for himself and all members of his class.

Defendant first attacks this court's subject matter jurisdiction upon the ground that the complaint fails to allege mandatory exhaustion of state remedies.

Title 42 U.S.C. § 2000e-5(b) requires the charging party to commence his proceeding with the state agency, where one exists (in California the F.E. P.C.), and provides that he may not file with the E.E.O.C. before 60 days have expired or until the state proceeding shall have been earlier terminated. There is no allegation in the complaint that this was done. However, in plaintiff's reply memorandum he has attached exhibits which indicate that there was, in fact, a compliance with this section and since the authenticity of these exhibits is not controverted, and treating the motion to dismiss as a motion for summary judgment, I hold that jurisdictional requirements have been met and that this court does have subject matter jurisdiction.

I further hold that this is not a proper class action and order that it may not proceed as such. Although the plaintiff defines the Class in broad, sweeping terms in his complaint, in his memorandum of points and authorities he construes his own pleadings as defining a class limited to the employees of the defendant. So limited, it does not appear to be so large a class as would make joinder impractical.

The defendant moves to dismiss upon the ground that the complaint fails to state a claim upon which relief can be granted. Title 42 U.S.C. § 2000e-2(a)(1) provides in relevant part as follows:

"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 ... because of such individual's ... sex ..."

I do not consider the applicability of Title 42 U.S.C. § 2000e-2(e), which permits discrimination, otherwise prohibited, on the basis of sex where "bona fide occupational qualifications" are involved. Such issue, is a matter of defense and is not presently before us.

I assume, since no contention to the contrary has been made, that the defendant, like other private employers, may make general, non-discriminatory rules with respect to the grooming and the attire of its employees. Although the complaint alleges no specific rules, I assume that the defendant has rules, either express or implied, which prohibit male employees from wearing their hair long while permitting female employees to wear their hair long. I assume, further, that all rules such as have been made are enforced with equal vigor upon all employees, male and female alike.

The question, then, before us is simply: Can a private employer require male employees to adhere to different modes of dress and grooming than are required of females without engaging in an unfair employment practice within the meaning of section 2000e-2(a)(1)? I hold that an employer may do so.

Section 2000e-2(a)(1) is part of Title VII of the Civil Rights Bill of 1964. The purpose of Title VII, as stated by the House Report accompanying the bill, is to "eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin." (1964 U.S.Code Cong. and Admin. News, p. 2401). After the issuance of the House Report on November 20, 1963, the ban on discrimination based on sex was added to the Act by an amendment offered during the debate in the House by Representative Smith of Virginia. 110 Cong.Rec. 2577.

Further information on the purposes of Title VII is set forth in the separate views of other members of the House of Representatives published in conjunction with the House Report. The views of Representative McCulloch, et al., emphasize that "testimony supporting the fact of discrimination in employment is overwhelming", and that statistical studies show that nonwhites have a much higher rate of unemployment than whites and that they enjoy a much lower median annual wage than whites. (U.S.Code Cong. and Admin. News, pp. 2513-2514). The statement of views further asserts that protecting civil rights in voting, education and public accommodations is a "shallow victory" if discrimination in employment practices continues, that "the failure of our society to extend job opportunities to the Negro is an economic waste", and that the "primary purpose" of the Equal Employment Opportunity Commission "is to make certain that the channels of...