Harper v. Trans World Airlines, Inc.

• Decision Date: 18 November 1975
• Docket Number: No. 75--1039,75--1039
• Parties: 11 Fair Empl.Prac.Cas. 1074, 34 A.L.R.Fed. 639, 10 Empl. Prac. Dec. P 10,498 Donna HARPER, Appellant, v. TRANS WORLD AIRLINES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 409

525 F.2d 409

11 Fair Empl.Prac.Cas. 1074, 34 A.L.R.Fed. 639,

10 Empl. Prac. Dec. P 10,498

Donna HARPER, Appellant, v. TRANS WORLD AIRLINES, INC., Appellee.

No. 75--1039.

United States Court of Appeals Eighth Circuit.

Argued Sept. 10, 1975.

Decided Nov. 18, 1975.

Robert H. Kubie, St. Louis, Mo., for appellant.

Thomas C. Walsh, St. Louis, Mo., for appellee.

Before GIBSON, Chief Judge, HENLEY, Circuit Judge, and VAN PELT, ^* Senior District Judge.

GIBSON, Chief Judge.

Plaintiff, Donna Harper, appeals from an adverse judgment by the District Court ¹ in a non-jury trial. Her sole contention on appeal is that the rule implemented in a regional office of defendant, Trans World Airlines, Inc. (TWA), which proscribed the employment of spouses in the same department, constituted sex discrimination and contravened Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. (1970), as amended, 42 U.S.C. § 2000e et seq. (Supp. III, 1973).

The facts of the case are fully set forth in the District Court's opinion, Harper v. Trans World Airlines, Inc., 385 F.Supp. 1001 (E.D.Mo.1974), and will be repeated only to the extent that they are relevant to the matters discussed herein. Plaintiff was employed as a regular part-time sales agent on October 20, 1969, in the Reservations Department of defendant's St. Louis Passenger Sales and Service Division (St. Louis Division). Prior to and during plaintiff's employment, defendant's Management Policy and Procedure Manual prohibited the employment of spouses within the same department unless the head of the department had given prior written approval to the continued employment of both spouses. ² In 1968, Nicholas Smith, who managed the Reservations Department in the St. Louis Division, adopted the policy that he would systematically refuse to permit married couples to work together in his department. When departmental co-workers were married, Smith allowed them to continue employment for 30 days, during which time they could agree as to which spouse would choose to voluntarily transfer to another department, take a leave of absence or terminate employment. If an agreement had not been reached by the spouses at the end of the 30 day period, Smith would discharge the spouse who had less seniority.

On May 29, 1971, plaintiff married John Harper, who worked in the same department and had been employed by defendant since May, 1967. Plaintiff and Harper sought permission from Smith to continue working together, but permission was refused. The couple had not informed Smith by June 30 as to which spouse had been designated to voluntarily transfer, terminate or take a leave of absence. Consequently, plaintiff was released since her husband had greater seniority.

Plaintiff contends that the application of defendant's policy has a 'disparate effect' upon women. She concedes that there was no conscious purpose to restrict female employment in the St. Louis Division through the enforcement of defendant's rule. However, she contends that such a 'facially neutral' rule is discriminatory since it will predictably induce more women than men to voluntarily terminate for two reasons: (1) the wife will generally produce less income than the husband, thus the detrimental effect on family income will be less if the wife terminates; (2) the job market is generally inhospitable to females and they can only gain and maintain employment in low paying capacities with limited promotional opportunities, thus they have less incentive than men to retain their employment. Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). Plaintiff concludes by arguing that since more women than men will be adversely affected by the invocation of defendant's rule, the burden shifts to defendant to prove that the discriminatory rule is necessary for the operation of the business.

The defendant contends, and the trial court found, that defendant's policy did not discriminate against women in purpose or effect and that there were sound business reasons for promulgating such a rule. Harper v. Trans World Airlines, Inc., supra 385 F.Supp. at 1003--04.

Section 703(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e--2(a) (1970), as amended, 42 U.S.C. § 2000e--2(a) (Supp. III, 1973), provides:

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 with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's * * * sex * * *; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's * * * sex * * *.

The purpose of these provisions is to afford the courts an instrument with which they can assure that all employment decisions are based on other than proscribed statutory discriminatory grounds. The Supreme Court has cautioned that section 703(a) cannot be utilized to give preferential treatment to an individual merely because of membership in a protected class.

(T)he Act does not command that any person be hired simply because he was formerly the subject of discrimination * * *. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.

Griggs v. Duke Power Co., 401 U.S. 424, 430--31, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).

In order to successfully maintain a Title VII action, the plaintiff must initially prove that the practices of the employer have a discriminatory effect. While the employer is not necessarily vindicated merely because he lacks the intent to discriminate, Rogers v. International Paper Co., 510 F.2d 1340, 1344 (8th Cir.), vacated and remanded on other grounds, --- U.S. ---, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975), he will be absolved if the plaintiff fails to prove a discriminatory effect upon a protected class. If discrimination is not shown, the judicial inquiry ends. However, if the plaintiff proffers sufficient evidence to show discrimination, the burden shifts to the defendant to present acceptable and legitimate business reasons for his discriminatory practice. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In regard to sex discrimination, the defendant is statutorily protected if sex is shown to be a 'bona fide occupational qualification reasonably necessary to the normal operation of that particular business * * *.' 42 U.S.C. § 2000e--2(e)(1) (1970).

This case does not present the type of overt discrimination found when an employer refuses to hire or discharges an individual merely because of that individual's sex. Cf. Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). Furthermore, defendant's rule did not expressly operate to adversely affect the employment of married females to the exclusion of married males. Cf. Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971); 29 C.F.R. § 1604.4 (1974). Plaintiff attempts to classify defendant's practice as a form of covert discrimination which arises when a 'facially neutral' employment practice is shown, in its application, to have an adverse effect upon a class protected by Title VII. The Supreme Court has recognized that Title VII condemns 'not only overt discrimination but also practices that are fair in form, but discriminatory in operation.' Griggs v. Duke Power Co., supra 401 U.S. at 431, 91 S.Ct. at 853. In Griggs, the Court struck down an employer's use of certain aptitude tests when they were shown, by substantial and credible evidence, to have engendered discriminatory treatment concerning the hiring and transfer of blacks. Griggs v. Duke Power Co., supra at 430 & n. 6, 91 S.Ct. 849. This court has utilized the Griggs rationale to conclude that various 'facially neutral' employment practices induced or perpetuated discrimination when sufficient evidence was adduced showing that fact. Holthaus v. Compton & Sons, Inc., 514 F.2d 651 (8th Cir. 1975); Wallace v. Debron Corp., 494 F.2d 674 (8th Cir. 1974); United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir. 1973).

Plaintiff purports to analogize her situation to Griggs by asserting that enforcement of defendant's rule will predictably result in the voluntary discharge of more women than men and, thus, is sexually discriminatory. ³ However, we conclude that plaintiff is not entitled to avail herself of the protective shield of Griggs because she has failed to prove, by statistics or other probative evidence, that defendant's rule adversely affected women.

The record shows that, prior to plaintiff's termination, five married couples had been subjected to the rule prohibiting employment of spouses. In four of the cases, the wife voluntarily chose to cease employment. While statistics may not be a determinative factor in an individual, as opposed to a class action, discrimination case, King v. Yellow Freight System, Inc., 523 F.2d 879, 882 (8th Cir. 1975), they may often be probative and supportive of an individual employee's allegation that an employer has discriminated against him or her on impermissible grounds. Cf. Naraine v. Western Electric Co.,507 F.2d 590, 594 (8th Cir. 1974). However, statistical evidence derived from an extremely small universe, as in the present case, has little predictive value and must be disregarded. Robinson v. City of Dallas, 514 F.2d 1271, 1273 (5th Cir. 1975). The trial court properly...