Brush v. San Francisco Newspaper Printing Company

Decision Date12 June 1970
Docket NumberNo. C-70 102.,C-70 102.
PartiesBrenda BRUSH, Plaintiff, v. SAN FRANCISCO NEWSPAPER PRINTING COMPANY, Defendant.
CourtU.S. District Court — Northern District of California

Howard J. DeNike, San Francisco, Cal., for plaintiff.

William J. Dowling, III, of Cooper, White & Cooper, San Francisco, Cal., for defendant.

SWEIGERT, District Judge.

This is a suit brought under the Civil Rights Act of 1964, Title 42 U.S.C. §§ 2000e to 2000e-15 by plaintiff, a woman in the market for employment in the San Francisco Bay Area, against defendant newspaper printer and publisher of the daily San Francisco Chronicle, the daily San Francisco Examiner and the Sunday Chronicle-Examiner, seeking a declaratory judgment and an injunction enjoining defendant from listing employment advertisements in its classified advertising sections under separate "Men" and "Women" headings when sex is not a bona fide occupational qualification and requiring defendant to provide listings without "Men" and "Women" headings where sex is not a bona fide occupational qualification.

THE RECORD

The case is now before the court on plaintiff's application for a preliminary injunction based upon the complaint and an evidentiary record consisting of plaintiff's affidavit of March 30, 1970, and an affidavit of Wright filed April 2, 1970. Defendant's evidentiary record in opposition consists of an affidavit of McLain filed May 21, 1970.

The complaint alleges (Par. VI) that defendant publishes "Help Wanted" listings under separate "Men" and "Women" headings without reference to whether sex is a bona fide occupational qualification.

However, by stipulation filed March 13, 1970, it is agreed that, so far as "Help Wanted" advertisements are concerned, defendant provides three listings (a) Help Wanted, Women; (b) Help Wanted, Men, and (c) a third neutral listing, Wanted, Men, Women; that the decision as to these listings is the advertiser's and that defendant places the "Help Wanted" ads under the listing designated by the advertiser.

In her affidavit of March 30, 1970, plaintiff sets forth that her occupation has been in the area of "research and planning in the field of human resources;" that this occupation is one in which sex is not a bona fide occupational qualification; that in November, 1969, she was unemployed and seeking employment and in order to secure a position consulted the classified advertising sections of the daily San Francisco Chronicle, the San Francisco Examiner and the Sunday Chronicle-Examiner; that in surveying the advertisements listed in the "Help Wanted" section, many jobs which interested her, were listed under the heading "Help Wanted— Men" although sex was not a bona fide occupational qualification for such jobs; that she was effectively discouraged from making application due to the inference created by the advertisement that the employer did not want to hire a woman; that this was particularly true when the advertisement called for a telephone response; that as a result of being discouraged she did not answer such advertisements, but would have done so had they been listed without a preference for men.

The complaint also (Par. VII) alleges that defendant publishes "Job Wanted" listings under separate "Men" and "Women" headings without providing a separate designated heading where there can be listed jobs in which sex is not a bona fide occupational qualification.

So far as "Job Wanted" advertisements are concerned plaintiff's affidavit of March 30, 1970 sets forth that she requested defendant to place a "Job Wanted" ad under a listing without sex heading, since her occupation did not involve sex as a bona fide occupational qualification, but was told that "Jobs Wanted" could only be listed under either male or female headings with the suggestion, however, that she "list under both headings" at double expense.

However, the parties have since stipulated on the record in open court that defendant will henceforth, when requested to do so by an advertiser placing a "Job Wanted" advertisement, make available to the advertiser a neutral column heading which contains no reference to either male or female.1

THE STATUTE INVOLVED

Title 42 U.S.C. § 2000e-3(b) provides that "it shall be an unlawful employment practice for an employer, labor organization or employment agency to print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer or membership in or any classification or referral for employment by such a labor organization or relating to any classification or referral for employment by such an employment agency, indicating any preference, limitation, specification or discrimination based on race, color, religion, sex or national origin except that such a notice or advertisement may indicate a preference, limitation, specification or discrimination based on religion, sex or national origin when religion, sex or national original is a bona fide occupational qualification for employment." (emphasis added).

Section 2000e-2(b) provides: "It shall be an unlawful employment practice for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex or national origin."2

Section 2000e(c) defines the term "employment agency" as "any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer * * *."

THE ISSUE

The issue in this case is not whether Congress could have included newspapers within the civil rights scheme of the statute along with employers, employment agencies and labor unions. Nor, is the issue whether Congress should have included newspapers in order to make the legislation more effective (as plaintiff argues it would) by extending its scope and aiding in its enforcement. Rather, the only question before this court is whether Congress did include newspapers.3

Certainly, the term "employment agency" does not in common parlance suggest "newspaper." Plaintiffs contend, however, that Congress, nevertheless, so broadly defined "employment agency" in this statute as to include newspapers, arguing that newspapers, like employment agencies, do regularly undertake "to procure employees for an employer or to procure for employees opportunities to work for an employer."

However, the statutory requirement that an employment agency be one that "regularly" undertakes to procure employees or employment opportunities indicates that the Congress had in mind to include only those engaged to a significant degree in that kind of activity as their profession or business.

Newspapers, although in the business of printing and publishing advertising copy presented by employers, professional employment agencies and job seekers, are not in any other or ordinary sense engaged in the business of procuring employees or employment opportunities — any more than they are engaged in the used car business or in the real estate business when they accept and print advertising copy designed to bring buyers and sellers together in those fields.

If the definition here in question is construed to include newspapers, then it would follow that a newspaper is subject to all the prohibitions and penalties expressly imposed by the statute on employers and on ordinary employment agencies.

One of these prohibitions is that it would be "an unlawful employment practice" for the newspaper "to print or publish or cause to be printed or published any notice or advertisement relating to employment * * * indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex or national origin except that such a notice or advertisement may indicate a preference, limitation, or specification, or discrimination based on religion, sex or national origin when religion, sex or national origin is a bona fide occupational qualification for employment." (emphasis added).

In short, the newspaper would have to make its own judgment in each case concerning whether advertising copy presented to it by an employer, or by a regular employment agency, and indicating a preference or specification based on sex, falls within the statutory provision permitting such a specification and preference only when such preference or specification "is a bona fide occupational qualification for employment."

The factual information pertinent to a judgment whether sex is really an "occupational qualification" for any particular employment and, if so, whether such occupational qualification is asserted in "good faith," is primarily and peculiarly within knowledge of the employer who presents "Help Wanted" advertising copy.

Such information would also be presumably within the knowledge of regular employment agencies which make it their special business to interview employers or persons seeking their professional services and thus to obtain detailed background information pertinent to whether sex is really a good faith occupational qualification for any particular job or any particular business.

But, such information is not ordinarily within the knowledge of the newspaper to which the employer or the employment agency presents the advertising copy—ordinarily over a desk or by mail. Nor does the pertinent background information necessarily appear on the face of the advertising copy presented to the newspaper.

When an employer or an ordinary employment agency places ad copy indicating a preference or specification as to sex concerning a generally described job or business, it may have a basis in fact for the preferral or specification even though such factual basis does not appear in the copy itself.

It is stipulated in this case that defendant newspaper does not undertake or attempt to determine whether a "Help Wanted—Men" or a "Help Wanted —Women" ad should appear under some other available...

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    ..."only those engaged to a significant degree in that kind of activity as their profession or business." Brush v. San Francisco Newspaper Printing Co., 315 F.Supp. 577, 580 (N.D.Cal. 1970), aff'd, 469 F.2d 89 (9th Cir. 1972), cert. denied 410 U.S. 943, 93 S.Ct. 1369, 35 L.Ed.2d 609. See also ......
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    ...are labeled to be unfair employment practices. Thus, although a newspaper is not an employment agency, Brush v. San Francisco Newspaper Printing Co., 315 F.Supp. 577 (N.D.Cal.), aff'd, 469 F.2d 89 (9th Cir.), cert. denied, 410 U.S. 943, 93 S.Ct. 1369, 35 L.Ed.2d 609, it still may violate th......
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