Jones Metal Products Co. v. Walker

• Decision Date: 15 March 1972
• Docket Number: No. 71-317,71-317
• Citation: 58 O.O.2d 393,29 Ohio St.2d 173,281 N.E.2d 1
• Parties: , 4 Fair Empl.Prac.Cas. (BNA) 483, 4 Empl. Prac. Dec. P 7746, 58 O.O.2d 393 JONES METAL PRODUCTS CO. et al., Appellants, v. WALKER, Dir., Dept. of Industrial Relations, et al., Appellees.
• Court: Ohio Supreme Court

Page 173

29 Ohio St.2d 173

281 N.E.2d 1, 4 Fair Empl.Prac.Cas. (BNA) 483,

4 Empl. Prac. Dec. P 7746, 58 O.O.2d 393

JONES METAL PRODUCTS CO. et al., Appellants, v. WALKER, Dir., Dept. of Industrial Relations, et al., Appellees.

No. 71-317.

Supreme Court of Ohio.

March 15, 1972.

Syllabus by the Court

1. A federal law enacted to regulate a subject regulated by state law is not, ipso facto, deemed to be preemptive of the state law. (Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.E.2d 248.)

2. The test to determine if a state law must yield to a federal law is whether both laws can be enforced without impairing the federal superintendence of the field. (Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248.)

3. The enforcement of R.C. 4107.42, 4107.43, 4107.46(A), 4107.46(B) and 4107.46(E), against an employer engaged in industry affecting interstate commerce who employs 25 or more employees for each working day in each of 20 or more calendar weeks, is inconsistent with the principle of nondiscrimination set forth in Title VII of the Civil Rights Act of 1964, and those sections are, therefore, preempted by virtue of the Supremacy Clause in paragraph two of Article VI of the United States Constitution.

4. R.C. 4107.42, 4107.43, 4107.46(A), 4107.46(B) and 4107.46(E) are enforceable against an employer engaged in industry not affecting interstate commerce who employs less than 25 employees for each working day in each of 20 or more calendar weeks.

5. To the extent that R.C. 4107.48 and 4107.49 implement R.C. 4107.42, 4107.43, 4107.46(A), 4107.46(B) and 4107.46(E), they are of no further force and effect.

6. To the extent that subsections (M) and (N) of R.C. 4107.99 impose penalties for violations of R.C. 4107.42 4107.43, 4107.46(A), 4107.46(B), 4107.46(E), 4107.48 and 4107.49, they are, by virtue of Section 2000e-7, Title 42, U.S. Code, of no further force and effect. Appellants, Jones Metal Products Co. and Jones-Zylon, Inc., in their complaint for declaratory judgment, seek a declaration that R.C. 4107.42, 4107.43 and 4107.46(A), 4107.46(B) and 4107.46(E) are inconsistent with Title VII of the Civil Rights Act of 1964, and, by virtue of the Supremacy Clause of the United States Constitution, are preempted.

The trial judge, on a stipulation of facts, found that said sections were preempted and permanently enjoined appellees, the Director of the Department of Industrial Relations, the Chief of the Division of Wages and Hours of Women and Minors, the Chief of the Division of Workshops and Factories, and the Attorney General for the state of Ohio, from enforcing those sections.

Upon appeal, the Court of Appeals for Franklin County reversed the judgment and dissolved the injunction. (25 Ohio App.2d 141, 267 N.E.2d 814.)

The cause is now before this court pursuant to the allowance of appellants' motion to certify the record and on an appeal as of right.

Vorys, Sater, Seymour & Pease, James P. Kennedy, Lester S. Lash and Robert F. Weaver, Jr., Columbus, for appellants.

William J. Brown, Atty. Gen., and Thomas V. Martin, Columbus, for appellees.

C. WILLIAM O'NEILL, Chief Justice.

Appellants admit that they have pursued a policy of employment practices, the effect of which has been to treat its female employees differently from its male employees, solely because of their sex.

Appellants contend that this differing treatment is required by R.C. 4107.42, 4107.43 and 4107.46(A), 4107.46(B) and 4107.46(E), and that Title VII prohibits differing treatment of male and female employees solely on the basis of sex. ¹ Thus, it is argued that the above-mentioned Ohio statutes are inconsistent with Title VII and, by virtue of the Supremacy Clause ² of the United States Constitution, are preempted.

The requisite standing to seek a declaratory judgment is present, for in their complaint, plaintiffs-appellants state that 'if plaintiffs eliminate their employment practices with respect to female employees, plaintiffs would be in a violation of state law, but if plaintiffs do not eliminate said employment practices, plaintiffs are, and will continue to be, in violation of Title VII.'

According to appellants, continued compliance with these state statutes will subject them to a multiplicity of damage suits by their employees, in the federal courts, for violations of Title VII. Conversely, if they comply with the requirements of Title VII, they will subject themselves to suits by one or more of the appellees and will subject themselves to fines, imprisonment and the costs of defending such litigation. Thus, a justiciable controversy exists.

Section 2000e-2(a), Title 42, U.S.Code, provides:

'(a) 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 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 * * *.'

Section 2000h-4, Title 42, U.S.Code, provides:

'Nothing contained in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.' (Emphasis added.) This section applies to Title VII.

Appellees contend that this latter section indicates congressional intent 'to preserve female protective statutes.' ³ This court does not agree. First, this section has general applicability to 'any title of' the Civil Rights Act, of which Title VII is only a part. Secondly, this section states that Congress intended to preserve only those state laws which are not 'inconsistent with any of the purposes of' the Civil Rights Act of 1964, 'or any provision thereof.' Thus, the female protective statutes may withstand attack only if they are not inconsistent with either the purpose of or any provision of Title VII. See Rosenfeld v. Southern Pacific Co. (C.C.A. 9, 1971), 444 F.2d 1219.

'The test of whether both federal and state * * * (laws) may operate, or the state * * * (law) must give way, is whether both * * * (laws) can be enforced without impairing the federal superintendence of the field, not whether they are aimed at similar or different objectives.' Florida Lime & Avocado Growers v. Paul (1963), 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248.

Thus, if enforcement of the state law would invalidate the federal policy, or impair the exercise of federal power, the state law is inconsistent within the meaning of Section 2000h-4, Title 42, U.S.Code, and is preempted.

The federal policy underlying Title VII, as enunciated by the Supreme Court, is that 'persons of like qualifications be given employment opportunities irrespective of their sex.' Phillips v. Martin Marietta Corp. (1971), 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613. It is a policy 'of non-discrmination (which) requires that individuals be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group.' Section 1604.1(a)(ii), 29 C.F.R. This policy can only be implemented if each individual, otherwise entitled to the position, is afforded an opportunity to demonstrate that he has the capacity to perform the work. See, e. g., Rosenfeld v. Southern Pacific Co., supra (444 F.2d 1219); Bowe v. Colgate-Palmolive Co. (C.C.A. 7, 1969),416 F.2d 711; Weeks v. Southern Bell T. & T. Co. (C.C.A. 5, 1969), 408 F.2d 228; Caterpillar Tractor Co. v. Grabiec (S.D.Ill.1970), 317 F.Supp. 1304.

The policy which underlies R.C. 4107.42 and 4107.46(E) is to accord to females certain 'privileges' not available to males. That policy, furthered by R.C. 4107.43 and 4107.46(A) and 4107.46(B) is the 'protection' of females from dangerous or hazardous occupations and exploitation by employers.

Although the purpose is beneficent, that alone cannot be made the basis for upholding these statutes if the state mandated policy of differing treatment of male and female employees conflicts with the command of Title VII. R.C. 4107.43, ⁴ on its face, compels an employer to refuse to hire a female for any of the occupations specified therein solely because of her sex. That section does not even allow a female, individually, an opportunity to demonstrate that she has the qualifications necessary for job performance.

R.C. 4107.46(A) and 4107.46(B), ⁵ on their face, compel an employer to refuse to employ a female, solely because of her sex, in excess of a specified number of hours-per day, per week, and per work period when her employment is noncontinuous. Thus, a female employee is deprived of at least the opportunity to gain additional compensation from overtime work, and in some instances, she is deprived of certain jobs or positions which may require that employees work overtime. Similarly, under those statutes, an employer will refuse to hire a potential employee, solely because of her sex, if, for example, he requires his employees to work longer hours or periods than are specified in R.C. 4107.46(A) or 4107.46(B). Females, whether employees or potential employees, are not given equal treatment, as required by Title VII, if the conditions of their employment are subject to restrictions not otherwise applied to males.

While not as apparent, R.C. 4107.42 and 4107.46(E) ⁶ also conflict with the policy of Title VII, specifically with Section 2000e-2(a)(1), Title 42, U.S. Code. Those statutes require an employer to...