Bowe v. Colgate-Palmolive Company, No. 16624-16626

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: CUMMINGS and KERNER, Circuit , and WISE
• Citation: 416 F.2d 711
• Parties: Thelma BOWE et al., Plaintiffs, Appellees, v. COLGATE-PALMOLIVE COMPANY et al., Defendants-Appellants. Thelma BOWE et al., Plaintiffs-Appellants, v. COLGATE-PALMOLIVE COMPANY et al., Defendants-Appellees. Thelma BOWE et al., Plaintiffs-Appellees, v. COLGATE-PALMOLIVE COMPANY et al., Defendant-Appellee, and International Chemical Workers Union, Local No. 15, Defendant-Appellant. Georgianna SELLERS et al., Plaintiffs-Appellants, v. COLGATE PALMOLIVE COMPANY et al., Defendants-Appellees.
• Docket Number: No. 16624-16626,16632.
• Decision Date: 29 October 1969

416 F.2d 711 (1969)

Thelma BOWE et al., Plaintiffs, Appellees,
v.
COLGATE-PALMOLIVE COMPANY et al., Defendants-Appellants.
Thelma BOWE et al., Plaintiffs-Appellants,
v.
COLGATE-PALMOLIVE COMPANY et al., Defendants-Appellees.
Thelma BOWE et al., Plaintiffs-Appellees,
v.
COLGATE-PALMOLIVE COMPANY et al., Defendant-Appellee, and
International Chemical Workers Union, Local No. 15, Defendant-Appellant.
Georgianna SELLERS et al., Plaintiffs-Appellants,
v.
COLGATE PALMOLIVE COMPANY et al., Defendants-Appellees.

Nos. 16624-16626, 16632.

United States Court of Appeals Seventh Circuit.

September 26, 1969.

As Amended on Denial of Rehearing October 29, 1969.

416 F.2d 712

COPYRIGHT MATERIAL OMITTED

416 F.2d 713

Marion W. Garnett, Chicago, Ill., John O. Moss, Indianapolis, Ind., Jerry D. Anker, Sylvia S. Ellison, Washington, D. C., for Thelma Bowe, and others, plaintiffs-appellants; Rogers, Garnett, Harth, Vital & Stroger, Chicago, Ill., of counsel

Herbert L. Segal, Louisville, Ky., Richard C. O'Connor, New Albany, Ind., Thomas C. Galligan, New York City, Hubert T. Willis, W. Bruce Baird, Louisville, Ky., for defendant-appellee, Colgate-Palmolive Co.

Stephen I. Schlossberg, Bernard F. Ashe, Stanley Lubin, Detroit, Mich., for amicus curiae, International Union, UAW.

416 F.2d 714

James F. Rill, William W. Scott, Washington, D. C., for National Federation of Business and Professional Women's Clubs, Inc., amicus curiae; Collier, Shannon & Rill, Washington, D. C., of counsel.

Daniel Steiner, Gen. Counsel, Russell Specter, David Zugschwerdt, Attys., E. E. O. C., Washington, D. C., amicus curiae.

Before CUMMINGS and KERNER, Circuit Judges, and WISE, District Judge.^*

KERNER, Circuit Judge.

Plaintiffs are present and/or former female employees of defendant Colgate-Palmolive Company (Colgate) who were represented, for collective bargaining purposes, by defendant International Chemical Workers Union, Local No. 15 (Union) at Colgate's Jeffersonville, Indiana, plant. Plaintiffs sued Colgate and the Union under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. charging that they were intentionally discriminated against by a system of job classification which deprived them of various opportunities in the plant and that they were subjected to discriminatory layoffs under a segregated plant seniority system based on the employees' sex.

Prior to trial, the court below required plaintiffs to elect whether they would proceed in this action or whether they would seek remedy under the collective bargaining agreement through arbitration. The court also refused to consider the claims of certain plaintiffs who had not filed charges with the Equal Employment Opportunity Commission (EEOC) and had not received notice of the right to sue from the EEOC, having determined that this action could not be maintained as a class action for purposes of applying a back pay remedy for the layoffs. After trial by the court without a jury, a memorandum opinion was filed which found for the Union in full, and for Colgate on all issues on the merits except as to certain layoffs under the segregated seniority lists in November, 1965. The crux of the lower court's opinion on the merits is its holding that Colgate acted reasonably in imposing a 35-pound weight-lifting limit on jobs which were open to females, thus foreclosing them from competing for jobs requiring lifting of more than 35 pounds. The facts are carefully set out in Bowe v. Colgate-Palmolive Co., 272 F.Supp. 332, esp. 340-360 (S.D. Ind.1967). Except for portions of the partial relief granted below, we reverse.

1. ELECTION OF REMEDIES

The first major issue for our consideration is whether the trial court acted properly in requiring plaintiffs to elect whether they would pursue their statutory remedy in this action or seek arbitration of grievances under the collective bargaining contract. Thus, the court required an election of remedies prior to any decision on the merits in either of the available fora.

The situation facing the trial court was one in which there exists concurrent jurisdiction under the statutory scheme and under the grievance and arbitration process for the resolution of claims against an employer and a union. The analogy to labor disputes involving concurrent jurisdiction of the N.L.R.B. and the arbitration process is not merely compelling, we hold it conclusive.¹

416 F.2d 715

While we recognize that there is a burden placed on the defendant who must defend in two different fora, we also note that there may be crucial differences between the two processes and the remedy afforded by each. Also, as with unfair labor practice cases, in a case involving an alleged breach of a contract brought before an arbitrator, the arbitrator may consider himself bound to apply the contract and not give the types of remedy which are available under the statute. Conversely, an action in court may not be able to delve into all the ramifications of the contract nor afford some types of relief available through arbitration, e. g., back pay prior to the date of the statute. United Steel-workers of America, A.F.L.-C.I.O. v. American Int'l Aluminum Corp., 334 F.2d 147 (5th Cir.1964), and cases cited supra, note 1.

Moreover, in an action brought under Title VII, the charging party and suing plaintiff acts as a private attorney general who "takes on the mantel of the sovereign." Jenkins v. United Gas Corp., 400 F.2d 28, 32 (5th Cir. 1968). See also Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968).² When, as frequently happens, the alleged discrimination has been practiced on the plaintiff because he or she is a member of a class which is allegedly discriminated against, the trial court bears a special responsibility in the public interest to resolve the dispute by determining the facts regardless of the position of the individual plaintiff. Jenkins, supra at 33, n. 10 of 400 F.2d. This is only fair to the defendant as it avoids forcing him to defend a multiplicity of actions.

Accordingly, we hold that it was error not to permit the plaintiffs to utilize dual or parallel prosecution both in court and through arbitration so long as election of remedy was made after adjudication so as to preclude duplicate relief which would result in an unjust enrichment or windfall to the plaintiffs. American Int'l Aluminum, supra at 152 of 334 F.2d. Cf. N.L.R.B. v. Geo. E. Light Boat Storage, Inc., 373 F.2d 762, 767-768 (5th Cir. 1967).

2. WEIGHT-LIFTING RESTRICTION

Colgate uses an unusual system of plant-wide seniority due to the uncertainty from week to week as to which jobs in the plant will operate. Each week, every employee completes a job preference sheet for the following week with job assignments being made on the basis of seniority. The seniority system is bifurcated into separate eligibility lists for men and women. While men may bid for jobs plant wide, women are restricted to jobs which do not require lifting more than 35 pounds. The history and mechanics of this unusual system are fully set out at 272 F.Supp. 340-347. The Union also bears responsibility for this system since it continued to abide by it as enshrined in the contract in force on the effective date of Title VII and since it preserved some parts of the system in its 1966 contract with Colgate. However, as shown below, there is no liability on the part of the Union due to the failure of any of the plaintiffs to comply with the jurisdictional requisites for filing a suit against the Union.

The trial court carefully analyzed the various facts relating to the weight-lifting restriction and concluded that Colgate had acted reasonably and in the interest of the safety of its female employees in imposing the 35-pound restriction. 272 F.Supp. at 353-357, and 363-366. While this was a carefully reasoned and conscientious approach, we hold it error as it is based on a misconception of the requirements of Title VII's anti-discrimination provisions.

The trial court relied on 42 U.S.C. § 2000e-2(e) which permits discrimination in hiring by sex where sex "is a bona fide occupational qualification reasonably

416 F.2d 716

necessary to the normal operation of that particular business or enterprise" and § 2000e-3(b) which similarly permits discrimination in job advertisements where sex "is a bona fide occupational qualification for employment." The court also relied on § 2000e-7 which states that the Act shall not be deemed to relieve those covered under it from any liability imposed by state law, except where such law would require the doing of "any act which would be an unlawful employment practice under this subchapter." Thus, the court succumbed to the erroneous argument that state laws setting weight-lifting restrictions on women were not affected by Title VII. While we agree with the court's noting of the EEOC's statement that it cannot be assumed that Congress intended to strike down all such state legislation,³ we also observe that that statement was presented to the court out of its proper context. The EEOC guideline on sex as a "bona fide occupation qualification" (BFOQ) reads, in pertinent part, 29 C.F.R. §§ 1604.1 and 1604.2 (1968)

§ 1604.1 Sex as a bona fide occupational qualification.

(a) The Commission believes that the bona fide occupational qualification exception as to sex should be interpreted narrowly. Labels — "Men\'s jobs" and "Women\'s jobs" — tend to deny employment opportunities unnecessarily to one sex or the other.

* * * * * *

(3) Most States have enacted laws or administrative regulations with respect to the employment of women. These laws fall into two general categories:

(i) Laws that require that certain benefits be provided for female employees, such as minimum wages, premium pay for overtime, rest periods or physical facilities;

(ii) Laws that prohibit the employment of women in certain hazardous occupations, in jobs requiring the lifting of heavy weights, during certain hours of

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