Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., ANTI-DISCRIMINATION
| Decision Date | 13 February 1962 |
| Docket Number | ANTI-DISCRIMINATION,No. 19771,19771 |
| Parties | , 49 L.R.R.M. (BNA) 2818, 1 Empl. Prac. Dec. P 9677, 44 Lab.Cas. P 50,460 The COLORADOCOMMISSION and Edward Miller, Mrs. Paul Budin, Clarence C. Bellinger, Gene Manzanares, Robert C. Keeler, George J. White, and George O. Cory, as members of said Commission and Marlon D. Green, Plaintiffs in Error, v. CONTINENTAL AIR LINES, INC., Defendant in Error. |
| Court | Colorado Supreme Court |
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Charles S. Thomas, Asst. Atty. Gen., for plaintiff in error Anti-Discrimination Commission.
T. Raber Taylor, Denver, for plaintiff in error Marlon D. Green.
Holland & Hart, Patrick M. Westfeldt, William C. McClearn, Warren L. Tomlinson, Denver, for defendant in error.
Burke Marshall, Asst. Atty. Gen., Harold H. Greene, David Rubin, Washington, D. C., for United States.
Arnold Forster, Gen. Counsel, Paul Hartman, Sol Rabkin, Associate Counsel, New York City, Donaldson, Hoffman & Goldstein, Denver, for Anti-Defamation League of B'nai B'rith.
Edwin J. Lukas, Gen. Counsel, Theodore Leskes, Associate Counsel, Charles Rosenbaum, New York City, for American Jewish Committee.
Mandel Berenbaum, Louis G. Isaacson, Joseph Mosko, James Radetsky, Stanton Rosenbaum, Walter M. Simon, Anthony F. Zarlengo, William S. Powers, Denver, amici curiae.
Marlon D. Green filed a complaint before the Colorado Anti-Discrimination Commission in which he alleged that the Continental Airlines violated the Colorado Anti-Discrimination Act of 1957 by refusing to employ him as an airline pilot on or about July 8, 1957, because he is a Negro. It was further alleged that Continental Airlines violated the said act in that its forms of application for employment as a pilot contain at least two specifications prohibited by the act, namely, attachment of a photograph and requiring the applicant to state his race.
After a hearing before the Commission it ordered that:
'The Respondent (Continental) shall give to the Complainant (Green) the first opportunity to enroll in its training school in its next course, and the priority status of the Complainant shall be fixed as of June 24, 1957.'
On review of the commission's order the district court held that the Colorado Anti-Discrimination Act, in so far as it purported to regulate the employment of flight crew personnel of an interstate air carrier, was invalid as creating a burden upon interstate commerce. The trial court entered a judgment ordering the dismissal of Green's complaint before the commission. Green and the commission are here by writ of error seeking reversal of the judgment.
In 1937 the General Assembly enacted the following statutes--(now C.R.S. '53, 5-1-2, 5-1-3 and 5-1-8).
'5-1-2. Navigation of aircraft.--The public safety requiring and the advantages of uniform regulation making it desirable in the interest of aeronautical progress that aircraft operating within this state should conform with respect to design, construction and air-worthiness to the standards now, or hereafter to be prescribed by the United States government with respect to navigation of aircraft subject to its jurisdiction, it shall be unlawful for any person to navigate an aircraft within the state unless it is licensed and registered by the department of commerce of the United States in the manner prescribed by the lawful rules and regulations of the United States government then in force.
'5-1-3. License for navigation.--The public safety requiring and the advantages of uniform regulations making it desirable in the interest of aeronautical progress that a person engaging within this state in navigating aircraft designated in section 5-1-2 in any form of navigation for which license to operate such aircraft would be required by the United States government shall have the qualifications necessary for obtaining and holding the class of license required by the United States government. It shall be unlawful for any person to engage in operating such aircraft within this state in any form of navigation unless he have such a license.
'5-1-8. Interpretation.--This article shall be so interpreted and construed as to effect its general purpose and to make uniform the law of those states which enact it and to harmonize as far as possible, with federal laws and regulations on the subject of aeronautics.'
Thus in 1937 the legislature gave recognition to federal laws and regulations in the realm of aeronautics.
The Colorado Anti-Discrimination Act of 1957 provides in C.R.S. '53, 80-24-2(5):
'For an employer to refuse to hire, to discharge, to promote or demote, or to discriminate in matters of compensation against, any person otherwise qualified, because of race, creed, color, national origin or ancestry.'
Continental Airlines, among other defenses not necessary to consider, raises the question of whether the Anti-Discrimination Commission has any jurisdiction over the subject matter of the action.
It is admitted that Continental is a commercial carrier by air; that it operates pursuant to a certificate of public convenience and necessity issued by the Civil Aeronautics Board. The company provides air transportation for passengers, freight, and United States mail between the states of Colorado, Texas, Oklahoma, New Mexico, Kansas, Missouri, Illinois and California. Continental was admittedly engaged in interstate commerce, and it was further agreed that the particular employment sought by Green involved interstate operations.
Continental contends that the Colorado statute under which these proceedings were instituted, as applied to the facts of this case, is unconstitutional and void under Article I, Sec. 8, clause 3 of the Constitution of the United States which provides:
'The Congress shall have power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'
Congress has pre-empted the field of law concerning racial discrimination in the interstate operations of carriers (generally and specifically with relation to employment of interstate operating personnel) and has thereby precluded exercise of authority by the several states in this field.
The trial court adjudged in effect that the Colorado Anti-Discrimination Act cannot constitutionally be extended to cover the hiring of flight crew personnel of an interstate air carrier; that if said Act be applied to the hiring contracts of interstate air carriers it would unconstitutionally burden interstate commerce and would amount to an invasion of a field pre-empted by the United States under (a) The Railroad Labor Act; (b) the Civil Aeronautics Act; and (c) Federal executive orders dealing with discrimination by employers contracting with the federal government. The trial court entered judgment setting aside the findings of the commission and dismissing Green's complaint.
The United States and certain other groups interested in the subject matter of the controversy were granted leave to file briefs as amici curiae. In the brief filed by the Assistant Attorney General of the United States, argument is advanced under separate captions as follows:
Counsel for Green, in substance, make the same argument on the question of whether the State of Colorado has jurisdiction to regulate the hiring practices of those engaged in interstate air transportation.
With reference to the above stated propositions Continental presents lengthy argument under the following captions:
'1. The Colorado Anti-Discrimination Act May Not Constitutionally be Applied to Flight Crew Personnel of an Interstate Air Carrier.
Although additional arguments on other matters are contained in the briefs, they were not determined in the trial court. The only question resolved was that of jurisdiction. The trial court determined that the act was inapplicable to employees of those engaged in interstate commerce, and the judgment was based exclusively on that ground.
The first question to be resolved on this writ of error is whether the Colorado Anti-Discrimination Act may be applied to flight crew personnel of an interstate air carrier. If the question is answered in the negative other arguments directed to the merits of the action, and questions relating to the validity of the act when tested by provisions of the Colorado Constitution, are academic and of no materiality to the issue to be determined.
The trial court entered extensive Findings of Fact, Conclusions of Law and Judgment. As set forth in the appendix to the brief of Continental, this document consists of thirty-eight printed pages. It is very apparent that the learned trial judge gave careful consideration to the numerous decisions of the Supreme Court of the United States which bear upon the issue. Many of them are analysed in the judgment entered by the court. The findings, conclusions and judgment of the trial court might well be adopted in toto as the opinion of this court. However in the interest of brevity we will do no more than mention a few decisions which we think...
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