Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris

PETITIONER: Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans
RESPONDENT: Norris
LOCATION: Briarcrest Christian Academy

DOCKET NO.: 82-52
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 463 US 1073 (1983)
ARGUED: Mar 28, 1983
DECIDED: Jul 06, 1983

ADVOCATES:
Amy Jo Gittler - on behalf of the Respondents
John L. Endicott - on behalf of the Petitioners

Facts of the case

Question

Media for Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris

Audio Transcription for Oral Argument - March 28, 1983 in Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans v. Norris

Warren E. Burger:

We will hear arguments next in Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans against Nathalie Norris.

Mr. Endicott, you may proceed whenever you are ready.

John L. Endicott:

Mr. Chief Justice, and may it please the Court, this case presents some of the questions that we believe were left unresolved by this Court's decision in the Manhart case.

In Manhart, this Court was concerned with a mandatory employer-operated pension fund which required the women make larger contributions than men.

The result was that a woman's take-home pay was smaller than a man's.

This Court held that such a plan violated Title 7, and we make no contention today that such holding was erroneous.

But the Arizona Deferred Compensation Plan is different in a number of respects.

In the Arizona an, independent insurance companies issue the life annuities that are involved in this case.

They, not Arizona, are the ones who determine the appropriate monthly payment to be made based on the amount accumulated by the employee and the age and the sex of that employee.

It is the insurance companies which developed and use the sex-based actuarial tables which are in issue here.

Arizona did not create or control or use such tables, but nevertheless has been held responsible for their use.

Arizona's only intent was to make available to its employees participating in its deferred compensation plan the widest possible selection of payout methods, including life annuities.

Arizona did not treat or intend to treat its female employees less favorably than its male employees.

The Arizona plan--

Sandra Day O'Connor:

Mr. Endicott, there is some indication that Arizona at least solicited bids on the basis of the sex-based tables--

John L. Endicott:

--Yes, Justice--

Sandra Day O'Connor:

--that it assumed that is what it wanted and went out to get what in fact it got.

John L. Endicott:

--Justice O'Connor, it solicited bids, and in the solicitation it asked for quotes on males and females, but there was nothing to prevent anybody from giving the same quote if there had been a unisex table available and if the bidder had chosen to do it.

Sandra Day O'Connor:

And in any event, Arizona didn't ask for it.

John L. Endicott:

No, Your Honor, but as Your Honor may have observed from the various amici briefs filed, nobody was offering.

It didn't ask for it because it didn't want it or didn't intend it.

It never thought of it, I think, is the answer.

Harry A. Blackmun:

Yes, probably so.

Who has the burden of proof on that?

John L. Endicott:

The burden of proof on what... on precisely what, Justice Blackmun?

Harry A. Blackmun:

On whether unisex tables are available or were available.

John L. Endicott:

It is our position that the burden of proof is upon the respondent, that it would have been upon the plaintiffs in the lawsuit to prove, because if the contention is that Arizona discriminated by not seeking the use of unisex annuity tables, the question would be Arizona discriminated because it didn't ask for or take unisex annuity tables, I think, just as in the other Title 7 cases where an employee who contends he or she was discriminated against by not being given a job, you must show that the job was available.

Therefore, I think the burden, Your Honor, is on the... on the plaintiff to prove that it was available and Arizona deliberately did not take it.

Harry A. Blackmun:

I take it your opposition disagrees with that.

John L. Endicott:

I believe so.