White v. Fleming, 74-1592

• Decision Date: 24 July 1975
• Docket Number: No. 74-1592,74-1592
• Citation: 522 F.2d 730
• Parties: 11 Fair Empl.Prac.Cas. 619, 10 Empl. Prac. Dec. P 10,313 Dorothy Ann WHITE, Plaintiff-Appellee, v. John FLEMING, City Attorney for the City of Milwaukee, Wisconsin, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 730

522 F.2d 730

11 Fair Empl.Prac.Cas. 619,

10 Empl. Prac. Dec. P 10,313

Dorothy Ann WHITE, Plaintiff-Appellee, v. John FLEMING, City Attorney for the City of Milwaukee Wisconsin, Defendant-Appellant.

No. 74-1592.

United States Court of Appeals Seventh Circuit.

Argued Feb. 26, 1975.

Decided July 24, 1975.

Joseph H. McGinn, Asst. City Atty., Milwaukee, Wis., for defendant-appellant.

Joseph P. Balistrieri, Milwaukee, Wis., for plaintiff-appellee.

Before SWYGERT and TONE, Circuit Judges, and PERRY, ^* Senior District Judge.

TONE, Circuit Judge.

Before us in this appeal is the constitutionality of a Milwaukee ordinance which prohibits female employees of "Class B" taverns from sitting with male patrons or from sitting or standing at or behind the bar. The District Court held the ordinance unconstitutional. We affirm the judgment.

In her complaint plaintiff alleges that she is by occupation an entertainer and that she was "charged with the offense of sitting with a male patron in violation of section 90-25 of the Milwaukee Code of Ordinances." Naming as defendants the Milwaukee City Attorney, the state judge before whom her prosecution was pending, and the Milwaukee Police Department, she prayed for injunctive relief against the pending prosecution and for declaratory relief adjudicating the ordinance invalid.

The District Court denied temporary injunctive relief, ¹ following which the state prosecution came on for trial and the charge against plaintiff was dismissed. Defendants' subsequent motion to dismiss this proceeding based on mootness was denied since the claim for declaratory relief remained. White v. Fleming, 344 F.Supp. 295 (E.D.Wis.1972).

Subsequently the court ruled on defendants' motion to dismiss addressed to the merits, granting the motion as to the Milwaukee Police Department on the authority of City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), and denying the motion as to the other defendants. Although the plaintiff had not moved for summary judgment, the court granted summary judgment in her favor, relying, Inter alia, on Proctor & Gamble Independent Union of Port Ivory, N. Y. v. Proctor & Gamble Mfg. Co., 312 F.2d 181 (2d Cir. 1962), Cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963), and Pitts v. Knowles, 339 F.Supp. 1183 (W.D.Wis.1972), Aff'd, 478 F.2d 1405 (7th Cir. 1973), as authority for that procedure. The court declared the ordinance invalid under the equal protection clause of the fourteenth amendment and enjoined defendants from enforcing it against plaintiff. White v. Fleming, 374 F.Supp. 267 (E.D.Wis.1974).

The ordinance, which the District Court held invalid in its entirety, applies to female entertainers, waitresses, and other female employees. Although plaintiff is solely an entertainer and is therefore affected only by the provisions of the ordinance applicable to entertainers, the provisions covering other employees are substantially the same and are "so interwoven with the system held invalid that (they) cannot stand alone." Dorchy v. Kansas, 264 U.S. 286, 290, 44 S.Ct. 323, 324, 68 L.Ed. 686 (1924); see also United States v. Raines, 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Consequently, the ordinance must stand or fall in its entirety.

The ordinance prohibits female employees from standing or sitting "at or behind the bar, except for the specific purpose of receiving food or drink orders for delivery to patrons who are not at the bar" and from sitting with male patrons anywhere on the premises. Exempted are licensed female bartenders, female employees who are members of the immediate family and household of the licensee, and "female entertainers while actually performing in an area behind the bar which is ordinarily used for back-bar entertainment."

Until recent years the separate treatment of women in the regulation of liquor dispensing establishments was uniformly held to be a valid classification under the equal protection clause of the fourteenth amendment. Justice Frankfurter, speaking for the Supreme Court in 1948 in Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163, sustained a Michigan statute which in effect prohibited any woman from serving as a bartender in a city having a population of 50,000 or more unless she was "the wife or daughter of the male owner." He said:

"The Fourteenth Amendment did not tear history up by the roots, and the regulation of the liquor traffic is one of the oldest and most untrammeled of legislative powers. Michigan could, beyond question, forbid all women from working behind a bar. This is so despite the vast changes in the social and legal position of women. The fact that women may now have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes, certainly, in such matters as the regulation of the liquor traffic. See the Twenty-First Amendment and Carter v. Virginia, 321 U.S. 131 (64 S.Ct. 464, 88 L.Ed. 605). The Constitution does not require legislatures to reflect sociological insight, or shifting social standards, any more than it requires them to keep abreast of the latest scientific standards." Id. 335 U.S. at 465-466, 69 S.Ct. at 199.

The Court held also that the subclassification of women whose husbands or fathers owned a bar, as against other women, was similarly valid:

"Michigan evidently believes that the oversight assured through ownership of a bar by a barmaid's husband or father minimizes hazards that may confront a barmaid without such protecting oversight. This Court is certainly not in a position to gainsay such belief by the Michigan legislature. If it is entertainable, as we think it is, Michigan has not violated its duty to afford equal protection of its laws." Id. at 466, 69 S.Ct. at 200.

Mr. Justice Rutledge, joined by Justices Douglas and Murphy, dissented on the ground that the statute arbitrarily discriminated between male and female owners of liquor establishments, allowing the male owner to employ his wife or daughter as a barmaid, even though he himself was always absent, but preventing the female owner from employing her daughter or working herself as a barmaid, even if a male employee was always present on the premises to keep order. This analysis, thought the dissenters, showed that the statute was not "motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids." Id. at 468, 69 S.Ct. at 201.

The dissenting opinion in Goesaert Was perhaps one of the earliest judicial refusals to accept uncritically the stereotyping of women which had so long prevailed in the application of the equal protection clause. It was to be many years, however, before the dissenters' approach found much favor in the courts. State courts and lower federal courts before and after Goesaert v. Cleary sustained, without much critical examination and usually based upon the traditional sex-role of women (see Women's Liberation Union of Rhode Island v. Israel, 379 F.Supp. 44, 50-51 (D.R.I.1974)), statutes which forbade the sale of liquor to women, the employment of women, and even the presence of women in liquor establishments. See, e. g., Henson v. City of Chicago, 415 Ill. 564, 114 N.E.2d 778 (1953); City of Milwaukee v. Piscuine, 18 Wis.2d 599, 119 N.W.2d 442 (1963) (upholding the ordinance challenged in the case at bar); Annot., 172 A.L.R. 620 (1948); Annot., 9 A.L.R.2d 541 (1950); see also Women's Liberation Union, supra, 379 F.Supp. at 50.

In recent years, the changing attitudes concerning women's roles in society have been reflected not only in action by Congress (see, for example, the Equal Pay Act of 1963, 29 U.S.C. § 206(d) and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq. ²) but in court decisions as well. While the Supreme Court has not yet overruled Goesaert v. Cleary, the judicial and social climate has changed since that case was decided. This court showed, arguably, a disposition narrowly to limit Goesaert to its facts in holding that a complaint challenging Chicago's barmaid ordinance, which the district court had dismissed on the authority of Goesaert, presented substantial constitutional questions under the equal protection clause and, in view of the Civil Rights Act of 1964, 42 U.S.C. § 2000a Et seq., the supremacy clause. ³ McCrimmon v. Daley, 418 F.2d 366, 369-371 (7th Cir. 1969). And at least two district courts have recently held invalid state regulation of the conduct of women in liquor establishments which would surely have been thought to be controlled by Goesaert not many years ago. Daugherty v. Daley, 370 F.Supp. 338, 340-341 (N.D.Ill.1974) (three-judge court); Women's Liberation Union, supra, 379 F.Supp. 44. Thus, while we would not be free to disregard Goesaert in a case from which it was indistinguishable, McCrimmon v. Daley, supra, 418 F.2d at 369, neither do we feel bound to extend its holding in light of the developments of recent years in the law of equal protection and the rights of women. Cf. Foster v. Sparks, 506 F.2d 805, 827 (5th Cir. 1975).

It is true that Goesaert was grounded in part upon the broad powers of the state to regulate the traffic in liquor under the twenty-first amendment, and the Court has recently reaffirmed those powers in California v. LaRue,409 U.S. 109, 114-115, 118-119, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), which upheld a California Department of Alcoholic Beverage Control regulation prohibiting explicit sexual entertainment in bars. The subject of the ordinance here in question is, once again, liquor dispensing establishments. However, as the Supreme Court recognized in LaRue, 409 U.S. at 115, 93 S.Ct. at 395, this is only one circumstance entitled to weight: " . . . the case for upholding state regulation in the area covered by the Twenty-first...