Phillips v. Martin Marietta Corporation

PETITIONER:Ida Phillips
RESPONDENT:Martin Marietta Corporation
LOCATION:United States Court of Appeals for the Firth Circuit

DOCKET NO.: 73
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 400 US 542 (1971)
ARGUED: Dec 09, 1970
DECIDED: Jan 25, 1971

ADVOCATES:
Donald T. Senterfitt – For the Respondent
William L. Robinson – For the Petitioner

Facts of the case

In 1966 Martin Marietta Corp. (Martin) informed Ida Phillips that it was not accepting job applications from women with preschool-age children; however, at this time, Martin employed men with preschool-age children. Phillips sued and alleged she had been denied employment because of her sex in violation of the Civil Rights Act of 1964. The district court granted the defendant’s motion for summary judgment by holding that, because seventy-five to eighty percent of the applicants hired for the position for which Phillips applied were women, there was insufficient evidence that there was bias against women. The U.S. Court of Appeals for the Fifth Circuit affirmed.

Question

Does a refusal to hire women with preschool-age children while hiring men with such children, in the absence of business necessity, violate of the Civil Rights Act of 1964?

Warren E. Burger:

We’ll hear arguments in number 73, Phillips against Martin Marietta Corporation and Mr. Robinson you may proceed whenever you are ready.

William L. Robinson:

Mr. Chief Justice, and may it please the Court.

This case is before the Court on writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The case involves a question of statutory construction of Section 703 (a) of the 1964 Civil Rights Act.

The question before the Court is whether Section 703 (a) permits an employer to refuse to hire women with pre-school-age children, while hiring men with pre-school-age children.

The bona fide occupational qualification standard or exemption to the Act under Section 703 (e) is not involved in this case.

(Inaudible)

William L. Robinson:

The bona fide occupational qualification standard which permits an employer to discriminate on the grounds of sex, religion or national origin if it is a bona fide occupation qualification.

That is not involved in this case —

Harry A. Blackmun:

Is that agreed to by both sides, Mr. Robinson?

William L. Robinson:

That, it’s not —

Harry A. Blackmun:

It’s not in the case?

William L. Robinson:

I don’t know whether it’s agreed to both sides sir, but it was not raised as a defense below.

We will concede, of course Your Honor, that if the case is reversed and goes to a file below, they would have the opportunity to raise that defense then.

Harry A. Blackmun:

At least am I not correct, the en banc court made reference to it, at least the dissenters did?

William L. Robinson:

Yes, the dissenters said that the company should have the right to raise the defense, which we of course concede.

Could you take your voice up Mr. Robinson —

William L. Robinson:

Yes sir, I will.

Petitioner Mrs. Ida Phillips is the mother of 7 children, who range in age from 3-15 years, when she applied to work with respondent Martin Marietta Company.

In September, 1966, petitioner applied for a job with respondent as an assembly trainee in response to its advertisement of 100 such positions.

Petitioner had a high school diploma, which was the only stated qualification for the job.

However, respondent told her, that it would not consider her for the job because she was a woman with pre-school age children.

Thereafter, petitioner filed a timely charge, alleging discrimination because she was a woman with pre-school-age children with the EEOC.

The EEOC made a finding of reasonable cause to believe that the refusal to hire her because she was a woman with pre-school-age children, constituted a violation of the Act.

When the Commission was unable to obtain voluntary compliance, the Commission authorized her to file a suit, which she did.

After petitioner filed the suit, respondent filed a motion to dismiss, which the District Court treated as a motion to strike and struck from petitioner’s claim — from petitioner’s complaint those allegations claiming that she was discriminated against because she was because she had pre-school-age children.

Thereafter, respondent answered the complaint admitting that its receptionist told petitioner she would not be considered because she was woman with pre-school-age children, but denying that they discriminated against her solely on the grounds of her sex.

Thereafter, respondent moved for summary judgment, which motion the District Court granted based on statistics that 70, approximately 75% of the people hired as assembly trainees were women.

What was the allegation that was stricken?

William L. Robinson:

The allegation that she was discriminated against, because she had pre-school-age children, leaving standing then merely the fact that was she was discriminated against because she was a woman.

William L. Robinson:

The District Court, we argued to the District Court sir —

The theory of striking that —

William L. Robinson:

The theory of striking there was as a matter of law, discrimination against a person because of their sex-plus, as she being a woman with pre-school-age children did not constitute a violation of the Act.

In ruling on that the District Court specifically said, the responsibilities of men and women with small children are not the same and employers are entitled to recognize those different responsibilities in establishing hiring policies.

Warren E. Burger:

And you say that it’s not so?

William L. Robinson:

I say, that it’s not so.

Warren E. Burger:

Does this Act reach to the government as an employer?

William L. Robinson:

No, Your Honor, it does not reach government as an employer.

It does however reach state employment services.

I don’t — there might be some question at some point of whether or not that reaches government employment, but I don’t think so now.

Warren E. Burger:

Then if a federal judge as a matter of general policy would decline to hire a law clerk, who had an infant child, a lady law clerk, but was willing to hire a men whose wives had infant children, they would be in violation of the statute, if the statute applies to them?

William L. Robinson:

If the statute apply, yes, but it does not apply to the federal judges of course.

Warren E. Burger:

I am sure, it doesn’t apply to federal judges.[Laughter]

William L. Robinson:

Yes, the statue on its face says that it doesn’t apply to federal government employment.

Hugo L. Black:

It doesn’t apply to what?

William L. Robinson:

Employment with the United States government.

Warren E. Burger:

Remember, we can’t be that sure that the traditional branch is necessarily in that category, I suppose?[Laughter]

William L. Robinson:

Yes sir, you are right.

Petitioner appealed the District Court’s decision to the Fifth Circuit which affirmed and rather clearly announced a sex-plus exemption to the Act of which we find here.

The Court held that a per se violation of the Act can only be based solely on one of the categories of the Act and the petitioner had not been subjected to discrimination on the grounds of sex, because here there was a two pronged qualification, that is she was a woman with pre-school-age children, or in other words sex-plus.

Thus the lower courts in judicially engrafted on the Act a further exception based on sex-plus and we submit that this doctrine should be rejected for several reasons.

First, it conflicts with the basic purpose of Title VII.

The basic purpose of Title VII is to ensure that women, and other protected categories are not excluded or otherwise hindered in their employment opportunities on the the basis of stereotypic assumptions or prejudgments about their desirability as employees.

Rather the Act requires that an employer consider each person on an individual basis or present a bona fide occupational qualifications defense.

This is of course the defense that the statute provides.

In this case, the lower courts permitted respondent to exclude petitioner based on an unsupported assumption about differences between the normal relationship of working fathers and working mothers to their pre-school-age children.

It would seem that these differences are, that the father goes out and works, the mother stays home and takes care of the children.

This we submit is exactly the kind of stereotypic assumption, that Title VII is intended to prohibit.

It is of course true that many women do indeed stay home to take care of the children, on the other hand many don’t.

The point of the statute is that they should be treated as individuals, rather than as members of a broad category.

William L. Robinson:

The second reason we submit that the decision below should be reversed is that it conflicts with the language of the Act.

Section 703 on its face would seem to prohibit the policy of refusing to hire women with pre-school-age children while at the same time hiring men with pre-school-age children, the Act declares that it shall be an unlawful employment practice to fail or refuse to hire, or otherwise to discriminate against any individual with respect to his terms, conditions or privileges of employment because of such individual’s sex.

The Court of Appeals attempted to avoid this plain language of the Act, by asserting that the Act only prohibits discrimination based solely on one of the categories.

However, the Senate by Roll call vote specifically rejected an amendment which would have inserted before each of the enumerations in the Act, the word sole.

In speaking against that amendment, Senator Case, one of the joint floor managers said that such an addition would completely vitiate the Act.

The sex-plus doctrine enunciated by the courts below in this case, clearly illustrates why that is so.

Restricting the sex-plus doctrine just to the notion of women with pre-school-age children.

It would exclude, based on a recent study done by the Department of Labor, 4.2 million women currently in the labor force from the protection of the Act, and allow solely on the grounds that they are women with pre-school-age children, their employers to discriminate against them.

This would go far toward vitiating the Act, but of course the sex-plus doctrine can easily be extended just as to women.

For example, an employer could, under this doctrine, announce a decision to refuse to hire based on sex-plus marital status or sex-plus an age requirement i.e. refuse to hire women who are 26 years of age or over, or refuse to hire women who are over 32.

Thirdly, if the Act permits discrimination on the basis of sex-plus, it would also seem to permit discrimination on the basis of race plus, religion plus, or nationality plus.

For example, an employer could then refuse to hire Negroes with chunky hair, or on the other hand Negroes with straight hair.

Warren E. Burger:

Do you think that would follow automatically from the Court of Appeals’ opinion?

William L. Robinson:

It would not follow automatically, but it is certainly a logical, rational application of the very doctrine.

Warren E. Burger:

But would require quite an extension of that doctrine?

William L. Robinson:

No.

I don’t think so at all.

The doctrine itself that is a factor, one of the enumerated categories plus another factor, is exactly the doctrine announced of Fifth Circuit.

The Fifth Circuit did note, and this might be what Your Honor is getting at, that when an enumerated category of the Act is added to — another factor is added to an enumerated category of the Act that the Court must look to determine whether or not there is discrimination.

I suggest that, that is not a substantial qualification to the blanket doctrine.

The blanket doctrine, sex-plus removes this seemingly, facially — discrimination on its face from the Act.

And I think that’s for the reasons I have stated before directly contrary to the intent of the statute and the language of the Act.

Congress engrafted the exception that it sought to put onto the Act and when there is something which on its face discriminates against one of the enumerated categories, then the initial inquiry should end right there.

Potter Stewart:

Do you think that an employer could have a policy of refusing to hire expectant mothers, although he does hire expectant fathers?

William L. Robinson:

Just based on that statement, Your Honor, no.

That violates [Voice Overlap]

Potter Stewart:

Women who are pregnant in other words?

William L. Robinson:

Yes, that violates Title VII.

Of course [Voice Overlap] of course he could —

Potter Stewart:

Sex-plus or some things that only women can do or be?[Laughter]

William L. Robinson:

That of course is correct, Your Honor.

No, if he wanted to refuse to hire women who are pregnant or on the basis of any other physical disability that has to do with sex, he could present his bona fide occupational qualification.

But, if indeed women who are pregnant can adequately perform his job, there is really no reason why he ought to be permitted to exclude.

Warren E. Burger:

But he can’t have that rule just because he doesn’t want to take the risk?

William L. Robinson:

No.

Warren E. Burger:

What if his history showed that there were considerable risks, would that be a justification then?

William L. Robinson:

If he raises the bona fide occupational qualification in his defense and meets the standards that the courts have announced with respect to utilizing that defense, yes.

He could avoid a — he could successfully defend the case of discrimination, but he cannot use those as a prejudgment.

If he can’t make out a bona fide occupational defense in short, he must give each women individual consideration.

Warren E. Burger:

Could he have — on the occupational section of the statute could he have a policy, an announced policy under this Act, that he would not hire either an expectant mother or women for six months after her last child was born.

Is there a rational basis for that?

William L. Robinson:

There might be, Your Honor, I don’t know.

Doctrinally, it is exactly this case, it is sex-plus and doctrinally —

Warren E. Burger:

Well, I am trying to see how far you can carry it?

William L. Robinson:

I suggest that whenever there is sex-plus, you got to from the prima facie case of discrimination, it is on its face discrimination on the basis of sex.

And Congress has said that, if you want to avoid or defend successfully a charge of discrimination on the grounds of sex, then you have the defense of the bona fide occupational qualification, but that’s all.

Warren E. Burger:

Do you see any possible problems of Equal Protection issues with the government, that’s millions of millions of employees not being subject to the Act, that the private employer is subject?

People able to obtain employment with the government on one hand where they could not on the Fifth Circuit theory, obtain employment with the private employer?

William L. Robinson:

No, I hadn’t thought of this problem to date, Your Honor and I don’t see the problem at all, I don’t even understand the suggestion.

Warren E. Burger:

But you are —

William L. Robinson:

I would note however that the Fourteenth and the Fifth Amendments to the Constitution cover government employment, and would thus prohibit the government from discriminating in its employment.

Also there are various regulations which the government has promulgated which prohibits discrimination in governmental employment, specifically rules administered by the Civil Service Commission and —

Warren E. Burger:

Well, then maybe — then are you suggesting that perhaps federal judges, for example, could not have such a rule as I have suggested?

William L. Robinson:

Oh!

I am suggesting that, but it would not be based on the Act, it would be based on the Fifth Amendment.

Warren E. Burger:

Constitutional question?

William L. Robinson:

Yes.

In addition to the statutory intent and the plain language of the Act, we also point out that the EEOC has issued regulations which prohibit an employer from disqualifying women with pre-school-age children on the grounds of sex-plus.

The court below rejected these regulations by the EEOC.

We suggest that it would be appropriate for this Court should it see if it to reverse, to remind the Circuit Courts that agencies in charge with the interpretation and implementation of statute such as Title VII are entitled to deference — that their regulations are entitled to deference and that their expertise should be given great weight.

And in fact this case arises (Inaudible) any kind of record at all?

William L. Robinson:

That’s correct, Your Honor.

It was decided on —

Which in effect decided this question on a – as it was disclosed on the (Inaudible) on summary judgment?

William L. Robinson:

That is correct.

Based on the record?

William L. Robinson:

That’s correct and indeed there is no evidence in it at all.

The District Court specifically decided the case as a matter of law.

In other words what you are saying is instruction of the — put on this statute is — well the Act, that is all discriminatory practices, or no discriminatory practices are reached by this Act if a woman is — if the condition of the employment is something that is attached to that (Inaudible) especially to women, is that it?

William L. Robinson:

That no discrimination is reached?

Yeah.

William L. Robinson:

That discrimination is reached, that discrimination has occurred if the exclusion attaches on the grounds of her sex-plus affect another factor.

Warren E. Burger:

Well, let’s use a neutral word like distinction.

You are saying no distinction can be made if it is something in addition to being a woman?

William L. Robinson:

Yes.

No distinction, that’s fine.

That’s the consequence of this decision?

William L. Robinson:

No, that would be the consequence of a decision of reversal.

Warren E. Burger:

If you prevail that will be the result?

William L. Robinson:

Yes, and again we know that all we are thereby doing is instructing the Court that should it, the Court below, that should it find after a record has been made that the Company indeed refused to consider women with pre-school-age children, while at the same time hiring men with pre-school-age children and there was no defense of bona fide occupational qualification made, then there was no defense on the bona fide occupational qualifications exception to Act, then the Court below must find discrimination contrary to the Act.

Hugo L. Black:

What defense does the statute provide that can be made?

William L. Robinson:

The statute provides a defense of bona fide occupational qualifications sir, that is, the employer is given an opportunity to prove that his discrimination on the basis of sex is reasonably necessary to the normal operation of his business.

If he can do that, then the Court finds discrimination, but finds that it is not a violation of the Act.

The Act provides that defense.

Hugo L. Black:

Suppose a company was engaged in the business of digging ditches, digging construction work all over the country, and that man declined to hire women because he somehow had ended up to the hired women to dig ditches, would that be a defense?

William L. Robinson:

No, it would not Your Honor, that kind of —

Hugo L. Black:

Does the law requires that the employer give the women a job of digging ditches and things of that kind?

William L. Robinson:

Yes.

Hugo L. Black:

Absolute requirement?

William L. Robinson:

If his distinction is going to be based on her sex then he has no right to make that distinction anymore.

William L. Robinson:

Congress has said that, employers can no longer make that kind of a distinction.

On the other hand, if his distinction is on the grounds that women simply cannot do the job, and he can prove that as a defense under the bona fide occupational qualifications exception to the Act, then he would be permitted to make that distinction.

Hugo L. Black:

But could he –- would he be permitted to try to defend?

William L. Robinson:

Yes.

Hugo L. Black:

On the ditch digging, on the ground women just can’t dig ditches as well as man?

William L. Robinson:

Yes, he would, Your Honor.

Hugo L. Black:

He would?

William L. Robinson:

He make that defense, yes.

He cannot however contend that he just doesn’t think it’s proper for women to dig ditches.

Congress has taken that prerogative from the employer, that is to make pre-judgments and to make moral decisions or decisions about what is proper on the basis on sex.

Warren E. Burger:

As I recall it, this provision this classification was added to the Bill at a later stage.

How long after the sex classification was added was the vote taken and the Bill passed or the vote taken and the —

William L. Robinson:

I think Your Honor that sex had already been put in when that amendment was —

Warren E. Burger:

Well, obviously it was put in before on the passage, but how long, time?

William L. Robinson:

When that amendment was rejected, I think the sex —

Warren E. Burger:

No, I am not speaking of that.

I am speaking of the addition of sex as a classification to the other classifications that are involved.

William L. Robinson:

I don’t know at what point they —

Warren E. Burger:

Wasn’t it quite late in the —

William L. Robinson:

Yes, it was.

It was quite late, but Your Honor we must remember that when Congress wrote the statute, they included sex in the statute just as they included race, nationality, and religion.

And I think in interpreting the statute as lawyers and judges, we should interpret the sex provisions just as we do the others irrespective of when it was added.

In summary, so that I can reserve the rest of time for the rebuttal, I would like to say that Title VII is one of a number of congressional acts that seek to eliminate irrational all the factors from being utilized as a basis for employment and require that employment policies be based on rational factors.

Does it (Inaudible) agent ship?

[Attempt to Laughter]

William L. Robinson:

In small parts, Your Honor.

Title VII seeks to prohibit employment policies based on stereotypic assumptions, pre-judgments, require that applicants for employment be considered on their individual merit.

The Act provides a narrow exception, not raised in this case.

Only where sex is a bona fide occupational qualification reasonably necessary to the normal operation of the business by engrafting the further exception to the Act that is sex-plus, the Courts below misconstrued Section 703, and their decision should be reversed.

Harry A. Blackmun:

Mr. Robinson, can I ask you one question on that?

Harry A. Blackmun:

Educate me along this line, suppose a hospital for years had employed nothing but female registered nurses.

William L. Robinson:

Yes.

Harry A. Blackmun:

And then today after the passage of this Act, a male nurse applicant comes along.

Do I understand your interpretation of the Act to be that just because they have always had female RNs and like them and got along well, they could not refuse to hire the male nurse, in the absence of the exception in the statute?

William L. Robinson:

That is correct.

Warren E. Burger:

The same would be true with private secretaries who by and large, 99% plus are women?

William L. Robinson:

Female, that is correct.

In essence what Congress has said is that, you can no longer have man jobs and women jobs because that constitutes, when imposed by the employer, that constitutes discrimination on the grounds of sex, that is exactly what Congress seems to prohibit.

Thank you.

Hugo L. Black:

Does this provide anything about discrimination in giving women jobs or (Inaudible)?

William L. Robinson:

The Act doesn’t specifically provide anything about giving women jobs, but the Act of course overall, Your Honor, does not require any affirmative consideration on the grounds of a prohibited category, or if it does it’s only after you prove a case of discrimination and are dealing with the question of remedy.

Warren E. Burger:

Mr. Wallace.

Lawrence G. Wallace:

Mr. Chief Justice, and may it please the Court.

This is the first case under Title VII, the Equal Employment Opportunities provision of the 1964 Civil Rights Act to be argued before this Court.

And for that reason as well as reasons reflected in the statistics about working mothers, reproduced in our brief, the United States believes the case to be an important one.

Before proceeding to the merits, I would like to make one correction of the brief that we filed in the case last April.

We stated in that brief that a petition for rehearing was filed in the Court of Appeals.

Warren E. Burger:

At what page is this?

Lawrence G. Wallace:

Well, we stated it both on pages 2 and 3, and again on page 4, but we are informed by counsel for the parties that no such petition was filed.

We regret our error about this which resulted from the fact that the Court of Appeals under its own rule treated the request by one of the members of that Court for reconsideration of the panel decision as a petition for rehearing.

Warren E. Burger:

That’s the common practice in all the Circuits, is it not?

Lawrence G. Wallace:

To my knowledge, but there is a specific rule about it in the Fifth Circuit, and the denial of the rehearing en banc, you will note in the record that denial begins with the statement on page 42 A of the record.

The petition for rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit judges not having voted in favor of it, rehearing en banc is also denied.

Now, I mentioned this correction because of the respondent’s contention that the petition for certiorari is untimely.

We believe along with the petitioner that the petition is timely for reasons — substantially for the reasons stated in the petitioner’s reply brief and if the Court is satisfied, I would like to proceed to the merits of the case.

As already recounted, the summary judgment in this case was based on the factual parenthesis, partly assumed by the District Court that the respondent excludes men but not women — excludes women but not men, I am sorry, that the respondent excludes women but not men with pre-school aged children from employment as assembly trainees.

Hugo L. Black:

What is that —

Lawrence G. Wallace:

That is to be trained to work on the assembly lines, as far as I know the record doesn’t specify what the job is, they keep referring to it as assembly trainee.

Warren E. Burger:

What do they assemble in Martin Marietta?

Lawrence G. Wallace:

The record doesn’t — I am sure counsel for Martin Marietta could tell you, I mean record doesn’t —

Potter Stewart:

The record shows that 75-80% of assembly trainees are women.

Lawrence G. Wallace:

That is correct, there is a affidavit, that is un-contradicted that 75 to 80% of them are women.

Potter Stewart:

Right.

Lawrence G. Wallace:

And that a higher percentage of women than of men who apply are hired for the job and that is essentially all the record there was, other than the complaint and the answer and the district judge’s assumption that Martin Marietta did hire men with pre-school aged children for this job.

Since this is the first case under Title VII, I might say for purposes of clarity that in our view and the lower Federal Courts have quite uniformly agreed with this, a suit of this kind of a De novo proceeding completely.

The only record is the record made in Court, this is not a review of administrative decision, and there is no administrative record being reviewed in this kind of a suit, even though the Equal Employment Opportunity Commission had investigated this compliant, and had —

Hugo L. Black:

Did any company have any women employed in it?

Lawrence G. Wallace:

It certainly does, in fact most of the people employed in this job are women.

Hugo L. Black:

And yet they refused to hire these because they are women?

Lawrence G. Wallace:

Because they have — because their women with pre-school aged children, because they have little children, they won’t hire any women with little children.

Hugo L. Black:

That’s the only issue then?

Lawrence G. Wallace:

The only issue is whether they can hire men with little children, but refuse to hire women with little children.

The complainant here is that it doesn’t benefit her very much if they hire other women, they won’t hire her even though they will hire men in the same situation.

It doesn’t benefit the children who depend on her for support either, that they are willing to hire other women.

She needs the job and that’s with her complaint was to the Equal Employment Opportunity Commission, and that’s what her complaint is in Court.

Hugo L. Black:

Is it contended and I heard somebody use the word rational, that a decision of that guy not to employ women, who have children in pre-school age, is irrational?

Lawrence G. Wallace:

We don’t contend that it is irrational, we contend that it’s illegal.

Congress made a judgment —

Hugo L. Black:

Somebody used the word, I was trying to get it (Inaudible) that connection.

Lawrence G. Wallace:

Many things that are illegal may not be irrational.

Now in our view, the Courts below erred in holding that what had been alleged and assumed here was not a discrimination on the basis of sex.

It was a qualification for employment applied to members of one sex and not the other.

And therefore, on its face which is all that we have here, there was no attempt to justify it, the requirement is no less a forbidden discrimination then would be a state voting qualification requirement, that said that men with pre-school age children could vote, the women with pre-school age children couldn’t vote.

Could there be any doubt as to whether that violates the Nineteenth Amendment.

In other words, the error to us is a very basic one of not recognizing what it is that constitutes a discrimination.

You don’t have to exclude all women in order to be discriminating against women, when you exclude some of them on grounds that aren’t used to exclude men.

That’s in essence what this case is about, and as a matter of fact, the Court of Appeals for the Fifth Circuit has itself apparently recognized that its sex plus standard is not a viable age interpret the Act.

In a recent decision of theirs, which to our way of thinking backs away quite considerably from this Phillip’s decision and this is an addition that we should make to our brief.

On page 12 of our brief, we refer at the end of the lengthy footnote on that page, this is page 12 of our brief, to a District Court decision in the Southern District of Florida called Lansdale against the United Airlines Company.

And there after the Court of Appeals decision in Martin Marietta, quite understandably the District Judge held, he was sitting there in the Fifth Circuit that it was no violation of the Act for the airline company to fire its stewardesses when they got married, even though it continued to employ its male stewards after they were married.

Lawrence G. Wallace:

It was sex plus and the Fifth Circuit, it said it doesn’t violate the Act.

Hugo L. Black:

Do they have male stewards or —

Lawrence G. Wallace:

They have both male stewards and female stewardesses, and when they get married, the women are fired but the men are allowed to continue in their jobs.

(Inaudible)

Lawrence G. Wallace:

And on August 13 of this year, the Fifth Circuit in a little Per curiam decision reversed this Lansdale case and held, this is case number 29410 in the Fifth Circuit.

2940.

Lawrence G. Wallace:

29410 decide on August 13 of this year after our brief was filed, and they said a little Per curiam opinion, that the Phillips case provided no authority for the decision, but they didn’t explain why not.

Hugo L. Black:

In that case, do you have a name?

Lawrence G. Wallace:

That cases also called Lansdale against the United Airlines Company.

It’s the same name as in their footnote.

Hugo L. Black:

Yeah.

Potter Stewart:

Could an airline decide that they only wanted to have the job position of stewardess, that it didn’t want to have a job, position of steward?

Lawrence G. Wallace:

There is litigation about that in a lower courts now, as to whether they have been able to establish a defense under the Act, under the bona fide occupational qualification defense, and this is a matter that has being litigated.

Potter Stewart:

Well back in a days when railroad trains were still running, and the Pullman Company decided they only wanted porters, and didn’t want porteresses?

Lawrence G. Wallace:

Well this is the kind of decision that now has to be justified as a matter relating to the business needs of the company or else it can no more be done than could — it can no more be perpetuated than a decision that you prefer to hire whites and not blacks.

Potter Stewart:

What — has commission taken a position on that, on the stewardesses?

Lawrence G. Wallace:

I couldn’t say with authority.

My belief is that the commission has opposed that a discrimination, but I couldn’t say for sure.

Potter Stewart:

And that isn’t a litigation, is it?

Lawrence G. Wallace:

I have an affirmative not from one of the commission lawyers that the commission has been opposing that discrimination.

Hugo L. Black:

What commission?

Lawrence G. Wallace:

The Equal Employment Opportunity Commission.

Hugo L. Black:

How many of them?

Lawrence G. Wallace:

That’s a five-member commission.

Warren E. Burger:

May we ask how many of them are women?[Attempt to Laughter]

Lawrence G. Wallace:

I don’t know the answer to that Your Honor.

Well, one I am told — well, not only has the Fifth Circuit —

Hugo L. Black:

You mean only one out of five?[Attempt to Laughter]

Lawrence G. Wallace:

They are not — [Attempt to Laughter] they have been appointed by the President.[Laughter]

Not only has the Fifth Circuit in our view backed away from the rationale of this decision, but as we read its brief in this Court the respondent doesn’t itself contend that the broad holding of the Court allow should be sustained on the merits, and it’s suggests instead that a more fully developed record might show that its refusal to hire the petitioner didn’t violate Title VII.

Lawrence G. Wallace:

Well, it seems plain to us that what prevented development of the record was the erroneous granting of the summary judgment prematurely, and that a reversal and remand of the case that called for and on that premise, I would like to comment briefly on how some of the respondent’s suggestions about development of the record seemed us to bear on the issues to be resolved on remand.

One suggestion is that, what the receptionist told the petitioner may not have accurately reflected the company’s policy.

Now, that possibility might affect whether an injunction should be granted or what the terms of the injunction should be, but it would not in our view, be a defense to the charge of discrimination against the petitioner herself.

Her right to relief under the Act does not depend on whether there has been a pattern or general practice of discrimination.

Section 703 of the Act, which is set out in our brief on page 2, on which she relies, specifically forbids discrimination against “any individual” on account of sex.

And if that probation is to be effective employers must be held responsible of the acts of their agents, who have apparent authority to reject employment applicants.

Petitioner’s only contact was with the receptionist.

There was no other spokesman of company policy for her and the company never undertook to resend the receptionist rejection of her employment application.

So, the practical, sensible way to apply the statute in our view is to look at the situation realistically from the standpoint of the person and upon whom the statute confers the right not to be discriminated against.

And that is precisely what this Court did in applying a similar right not to be discriminated against, under the Interstate Commerce Act, in Boynton against Virginia, in Volume 364 U.S.

The Court there held, that there is a statutory right to nondiscriminatory service in a bus terminal restaurant, even though the record did not show whether the restaurant was owned or controlled by a carrier.

It was enough that the terminal and the restaurant operated as an integral part of the carrier’s transportation service for interstate passengers and in those circumstances the Court said, “an interstate passenger need not inquire into documents of title or contractual arrangements in order to determine whether he has a right to be served without discrimination” and it seems to us that the same general approach should be applied here.

Now, respondent’s other suggestion that there may in fact, be no disparity in it’s treatment of men and women, or that whatever disparity exists maybe justifiable, raise somewhat more complex issues.

We recognize that the Act does not prohibit discriminations between parents and non-parents, or between married and single persons so long as those discriminations fall equally on persons of both sexes, and of all races, religions and nationalities.

But, the Commission and the Government have contended with some success in the lower courts, that when the burden of a discrimination based on a non-statutory factor, one of these so called neutral factors, such as seniority or educational background, in fact fall substantially more heavily on persons of a particular race or sex, or on etcetera, the discrimination is prohibited unless it is justified by reasons of business necessity.

Now that is the issue to be explored in the case of Griggs against Duke Power Company, Number 124, which will be argued in a few says, and in which we have also filed a brief.

The Commission has been reluctant however to see their approach and their possible justification extended to discriminations applied directly to the categories of person specified in the Act, such as discriminations between men and women.

Now, on the other hand the Act itself, in Section 703 (e), which is quoted in our brief, the bona fide occupational provision, expressly authorizes the restriction of certain jobs to persons of a particular religion, sex, or national origin, although, not interestingly to the persons of a particular race in instances where this is reasonably necessary to the the normal operation of the business.

But, the legislative history indicates that this exception was intended to be a narrow one, confined to the need for employees of a particular nationality religion or sex, to perform a particular job.

Examples given by the Act sponsors were French Chef for a French restaurant, or male baseball players for a male baseball team and the Commission accordingly has been reluctant to see this exception extended to cases such as the present one, in which it is admitted that women, as well as, men can and do perform the job of assembly training.

This explains why —

Hugo L. Black:

What they hold about the baseball player?

Lawrence G. Wallace:

Congress said that they ought to be able to qualify under this exception (Voice Overlap) —

Hugo L. Black:

The women —

Lawrence G. Wallace:

— and it meant that they ought to be able to restrict it to men, that that’s a bona fide occupational qualification.

The Act sponsor said that that’s the kind of thing they had in mind.

Hugo L. Black:

Suppose an airline has a man come up and apply to be a stewardess, I mean a steward, take the place of a stewardess, they tell him that customers like women better in that place, younger women obviously.

Would that be a good thing?

Lawrence G. Wallace:

Well, they are trying to justify their discrimination against men, on just that ground, under this statute.

The Commission has opposed their justification of it, but that is an issue in the lower courts now.

Lawrence G. Wallace:

But, what I was trying to do was to explain why in it’s first brief in the Court of Appeals, in this case, the Commission argued that there could be no possible justification under the Act for the kind of discrimination involved in this case.

And that any requirement of work attendants or rather legitimate business requirement, must be applied by the respondent to it’s assembly trainees neutrally, without regard to sex.

But after the unfavorable decision by the Court of Appeals Panel, the Commission took a more moderate position in it’s second brief in the Court of Appeals and our brief in this Court also recognizes that in light of the express Congressional judgment, that there should be some accommodation to legitimate serious business needs.

The possibility should be left open, that a sufficient shelling of overriding business necessity might me made in a particular case to warrant the exclusion from particular jobs of a subcategory of one of the classes if the person is protected by the Act, such as women with preschool age children.

Potter Stewart:

What would you envision or hypothesize as the kind of a case that could be made to justify this, statistical evidence that absenteeism and so on had been very much worse in that sub-group?

Lawrence G. Wallace:

Well, in our view the justification would have to be a very strong showing and I don’t know that it need to be delimited in this case without a record, by this Court now.

Potter Stewart:

(Voice Overlap) an example —

Lawrence G. Wallace:

An example would be that the company invests very heavily in the training of personnel for that particular job and that the great majority or substantially all of the excluded group have in the past proved to be unable to fulfill reasonable attendance or other requirements for the job.

Warren E. Burger:

If the —

Lawrence G. Wallace:

That would be the kind of thing we’d have in mind.

Warren E. Burger:

If their statistic showed that they had a higher rate of accidents, so the woman with children, two or three and four years of age, would that be, justification?

Lawrence G. Wallace:

Well, not merely a higher rate because statistics only show some disparity between every group virtually, and —

Warren E. Burger:

But wouldn’t that be quite significant —

Lawrence G. Wallace:

The purpose of Congress — it would be significant, I’m sure it would be significant to the employer, but the purpose of Congress is to say that people can’t be just put into classes and denied a chance to show their individual ability to perform a job or that their idea argued was to get away from employment discrimination by stereotyped groups of people and to let each individual meet the qualifications and the requirements for the job on his own merits.

Warren E. Burger:

This might get down to very, very seemingly small thing, this one they got into it.

For example, it might show that married women with teen — with preschool age children, made on an average five telephone calls to one for all other women, would that be irrelevant, telephone calls home?

Lawrence G. Wallace:

I think it would be relevant to showing of that kind of experience, but I am not sure that it would be material.

I am not sure that it would —

Warren E. Burger:

On an assembly line?

Lawrence G. Wallace:

Well, that — I mean, that some woman did this, doesn’t necessarily mean that this woman would do it or that she should be denied her opportunity to earn her living and a living for her children because of what some other woman had done in the past, that’s what Congress decided, that’s the whole purpose of the Act.

This woman has seven children to take — to provide for and she wants to work.

Warren E. Burger:

And you don’t think the employer has —

Lawrence G. Wallace:

He can require —

Warren E. Burger:

Long distance seeing that he can show that the woman in that posture with those responsibilities makes five times as many telephone calls as other types of persons?

Lawrence G. Wallace:

Well, he can require that she not would do that and if she does it he can fire her.

Warren E. Burger:

Well, would he, must he hire her in the first place or would that not be dispositive under the —

Lawrence G. Wallace:

Well, we don’t think it’s dispositive unless the showing is a very strong one, a very strong and not merely that statistically, they are more likely to do it.

That’s denying her chance to perform the job?

If she is willing to do it and willing to accept his terms, Congress has said she should have the opportunity.

Congress wanted to afford her that protection and we are asking this Court to afford it to her.

Warren E. Burger:

Thank you Mr. Wallace.

Mr. Senterfitt.

Donald T. Senterfitt:

Mr. Chief Justice, may it please the Court.

Martin Marietta Corporation does not have and has never had any such policy of discrimination as has been suggested here.

And this respondent does not concur in the language of the opinion of the Court of Appeals, which had been denominated the Sex Plus Doctrine or the coalescence principle.

The statement attributed to a receptionist, does not and did not reflect any sort of company policy of discrimination.

Rather the record, in this case, shows that the respondent did not practice discrimination against woman or anyone else in its employment practices or procedures.

This is highlighted by the the documentation in the record which reflects the company’s absolute policy of non-discrimination and equal employment opportunities, which is consistent with its particular reputation as an equal employment opportunity and a substantial government contractor, particularly sensitive to the pronouncements of the government in this field.

We do however, vigorously defend the correctness of the result reached by the District Court and the judgment of the Court of Appeals which affirm it.

We consider it to be elementary, of course, that a correct decision shouldn’t be reversibly because it may have been reached through an avenue of erroneous reasoning.

We would suppose that a court reviewing a correct judgment with an incorrect opinion, might have a duty to enunciate the appropriate reasons for the decision while affirming the judgment itself.

The facts in this case simply do not justify escalation into a cause.

The petitioner and her amici have invited this Court to decide far more than is necessary for an appropriate disposition of this case.

There is but a single issue and the resolution of which can appropriately determine the question of affirmance or reversal and of the judgment of the court below.

That question is of course, very simply and obviously whether the District Court’s order for summary judgment in favor of the respondent was correct.

And the sanction of course to the determination of that question is a review of the framework of the record upon which the District Court’s summary judgment order was entered.

The essence of this petitioner’s complaint or efforts to charge the respondent with a violation of her rights under Section 703 (a) appears in the two sentences where she said first, that when she gave her application to the receptionist, she was told, she a woman was told that her application — that the defendant was not considering applications from woman with preschool age children.

She followed this by the general and rather conclusionary charge that the defendant refused to employ her solely on account of her sex.

We think it appropriate to observe here.

It’d be difficult to imagine a more normal or natural term for the receptionist to use in addressing herself to the petitioner, who was a woman than to use the word women, in speaking to her.

Deluding any innuendo which it had otherwise might have add, the petitioner annexed to her complaint a copy of the decision of the EEOC which made no finding or affirmative assertion that the respondent treated women with preschool age children differently than it treated men similarly situated.

In fact, it twice referred to the respondent’s non-consideration of people with preschool age children.

To the complaint, the respondent filed a motion to dismiss and a motion to strike, a motion to strike has no relevancy to this issue and the court while not granting the motion to dismiss as such, the District Court’s order struck the allegation based on a refusal to hire the petitioner because she had preschool age children.

Now this —

Warren E. Burger:

Would you want us to decide this case on assumption that perhaps Martin Marietta hires — refuses to hire men with preschool age children?

Donald T. Senterfitt:

We think, Your Honor, that the record in this case does not show that it did not and it does not show that it treated women with preschool age children any differently than it treated men with preschool age children and that there was nothing in the record before the District Court for to enable him to rule otherwise than as the way he did.

Thurgood Marshall:

Do you deny that what the receptionist said to (Inaudible)

Donald T. Senterfitt:

We have admitted Mr. Justice Marshall, in our answer that the receptionist made the statement that was alleged.

There has been, we might say appropo (ph) to Justice’s inquiry.

There has been, there was, as we would develop in the recounting of record.

Donald T. Senterfitt:

A request for an admission was filed shortly before, just a few days before the hearing of the motions for summary judgment, in which the petitioner requested that we admit that we, now this for some two years later, that it now employs men with preschool age children.

Now aside from the irrelevancy of the time period involved because the two, the relevant time of the application was on two years prior and the request says now, aside from that however, time for responding had not expired at the time for the entry of the motion, at the time of the hearing on the motion for summary judgment.

We can advise the Court in all candor that the answer to it, if we had answered it, would have been yes.

But also, that if they had asked whether we hired women with preschool age children for the same job at the same time, the answer would likewise had been yes.

Thurgood Marshall:

Has there any change in the policy?

Donald T. Senterfitt:

No, sir the policy was exactly the same at that time.

Thurgood Marshall:

Why did the receptionist say what she did?

Is there any explanation in the record for that?

Donald T. Senterfitt:

There is no explanation in the record for that Your Honor.

Thurgood Marshall:

Well, would it be clear that to assume that when the receptionist said we don’t hire women with preschool age children, in preference to saying we don’t hire people with preschool children that she meant women, is that a correct assumption?

Donald T. Senterfitt:

We think, Your Honor, that it was a perfectly natural thing for the receptionist in talking to a woman, not to say we don’t hire men or women with preschool age children, but simply to say, we don’t hire woman.

Now I cannot, I am not undertaking to suggest that we have a policy of not — I don’t — I am not able to explain the act, any reason why this young lady said this.

We have admitted that she said it because we were unable to prove that she didn’t, but we — certainly I am not in any position to say why.

Thurgood Marshall:

Do you say now that you don’t know whether that was the policy at that time?

Donald T. Senterfitt:

I know that it was not the policy to decline, to refuse to hire women or men with pre-school-age children and the decision of the EEOC so reflects even though it has no evidence of value of course.

Thurgood Marshall:

And that’s true now?

Donald T. Senterfitt:

And that is true now, yes sir.

Potter Stewart:

But quite apart from policy, if this applicant was in fact, not considered for employment, because she was a woman with pre-school children, then there was a violation of the act, wasn’t there?

Quite apart from the policy —

Donald T. Senterfitt:

I would say — I understand —

Potter Stewart:

— somebody the company just didn’t know, didn’t get the word or misunderstood what the policy was, and if this woman, in fact, was denied consideration as an employee on that ground, then there was a violation of the equal rights, wasn’t there?

Donald T. Senterfitt:

We pointed in our brief, Mr. Justice, that the record, the skimpiness of which we must accept a degree of responsibility for —

Potter Stewart:

Because your motion for summary judgment?

Donald T. Senterfitt:

As advocates we were — we filed a motion and we won it.

It was appealed and we won that and that seems to me our only problem here.

The skimpiness of this record doesn’t provide a real basis for determining whether or not this woman was actually refused employment.

We do have, in the record, the affidavit of the manager of the employment department who was there and said that no discrimination was there at the relevant time and said that no discrimination was practiced and the record reflects that every possible effort in the world had been made to disseminate the requirements of Title VII of the Civil Rights Act of 1964 to every person that we could conceive in the company could possibly have any — and the record shows this, having in answers to interrogatives.

Potter Stewart:

So then do I understand that you, what you agree that if regardless of all these good faith efforts and if — and regardless of what the company’s policy was, if regardless of both of all of those things, if this woman, in fact, was — if her application was to refused consideration because she was a woman with pre-school-age children at a time when the company was hiring men with pre-school-age children, then her individual rights were violated under the act, you concede that or don’t you?

Donald T. Senterfitt:

Well, not Your Honor, unless —

Potter Stewart:

Because understood you say that you virtually concede that the rationale of the Court of Appeals was in error?

Donald T. Senterfitt:

Not unless if it were considered, if it were a — shall we say per se violation and unfortunately the case became confused in that framework at a point.

Unless the comparisons were made with men similarly situated with similar custodial problems, there were — the record doesn’t show what the status of Ida Phillips was, with the respect to custodial problems.

The records shows nothing on that.

Well, we don’t know what the term with pre-school-age children meant.

Perhaps, in that common experience we might assume it to mean what this petitioner apparently assumes it to mean, that is what could mean though, simply the mother of a child which is under school age regardless of whether or not this mother has the custody.

It is simply is nothing in this record to show this.

If it gives any further light on our position in this regard, we have conceded that sex-plus as a concept is really.

Potter Stewart:

Only under the statute — well, then I would infer perhaps for some tactical reason you want to — probably agree with me and I don’t except you to, but by the inference I gather from your argument is that you pretty well agree with your advisory that this judgment ought to be set aside and the case remanded for a trial on the merits?

Donald T. Senterfitt:

We thank Your Honor that of course is one way to develop — that is a way to develop a fuller record.

We think however that the record as it stood before the District Court where there were two questions before it at that time and the framework within which the record had been constructed where the petitioner had elected to stand on the per se issue and not to produce any counter veiling affidavits or to introduce into the record anything to show any discrimination or to show that men similarly situated with her custodial situation were treated differently than she.

Since she elected to stand on the per se issue, it left the District Court with no alternative, but to enter a summary judgment on the record as it stood at that time.

Warren E. Burger:

Are you saying that we have got to view this record just as though it had evidence or allegations that men who had pre-school-age children with no mother at home to take care of them.

In other words, where the man had the same custodial supervisory role as the wife, would not be hired, is that?

That seems to be what your position adds up to?

Donald T. Senterfitt:

First of all Mr. Chief Justice I wouldn’t presume to tell this court what it must view this case, but I am certain that I am understand —

Warren E. Burger:

Well, you make an argument that there is no showing on this record, this admittedly limited record that men were not treated the same way if they had custodial care of children at home.

And that therefore, the record is sufficient to support the District Judge’s findings without more?

Donald T. Senterfitt:

We would say Your Honor that the fact that it does not as such, and there is no affirmative showing in the record that there was any difference in the treatment simply to say that we are not going to hire pre-school-age children or women with pre-school-age children without being coupled with a comparison of the treatment of men similarly situated.

It does not constitute an allegation of violation under the Act.

And insofar as sustaining the result reached by the Court of Appeals, this is our position, Your Honor.

What you think the Court of Appeals would have done (Inaudible) to achieve (Inaudible)?

Donald T. Senterfitt:

I beg your pardon sir.

What you think the Court of Appeals would have done if they take in a different view of the legal question and said what you implicitly say he should have said, what do you think they would have done with the summary judgment motion?

Donald T. Senterfitt:

They would have the alternative, this same alternative that this Court has.

When they send it back?

Why should we —

Donald T. Senterfitt:

Your Honor, ten of them decided that it shouldn’t be.

I didn’t get that.

Donald T. Senterfitt:

Ten members of the Court of Appeals decided that it should not be.

Potter Stewart:

But they had the wrong view of the law as you concede, as I understand you not to concede?

Donald T. Senterfitt:

But they had the alternatives.

As far as the Court of Appeals, it had the same view of the law as the petitioner and which we concede has some merits.

It would have to determine then whether or not it felt that the District Court on the record before was correct in entering summary judgment, not whether or not Martin Marietta tried to discriminate.

That’s the per se issue and that’s where the case became all confused.

Yes sir.

Hugo L. Black:

Can I ask you a question?

Suppose the case was reversed and sent back to court and assume also that you are not defending on the ground that because of mother, it could be the reason of mother not to get a job, but it might still we know the reason why the husband should, suppose you get all of it?

Do you think you would have any showing by statistics or by anything else that the practice of not hiring mothers with the pre-school-age children was necessary to carry on your business in an orderly fashion, or would you attempt it?

Are you saying if you ought to have that chance?

Donald T. Senterfitt:

Certainly, if it’s appropriate at the time Your Honor and under the circumstances, if it should be remanded for the development of a fuller record, then we should have the opportunity.

If it’s considered appropriate at that time.

I may say, however, that this is sort of an aside to Mr. Justice Black’s query that they are governmentally published statistics which show that women with pre-school-age children have a higher incidence of absentee or as it would appear to.

Hugo L. Black:

Well do you (Voice Overlap) that as a defense or is it an automatic thing with regard to business or anything else, you did (Inaudible)?

Donald T. Senterfitt:

If the Court please, we feel that our position on this is that this record in its truncated posture, is not one that really affords the basis of speculating on what we might be able to do at that time.

Hugo L. Black:

I thought maybe you’re putting up as a defense and hoped (Inaudible) that the rule is a good one.

From a business standpoint it could throw the business out of the shape, out of (Inaudible) and that you want the chance to prove by statistics or whatever you can at that that’s a reasonable rule, and that it should not be — you should be not held liable on that basis?

Donald T. Senterfitt:

Your Honor, certainly I believe that it seemed to be appropriate at that time, if it should be remanded.

If the District Court should first find that we have discriminated under the act, then certainly to the extent that the business necessity doctrine would be available to us as a defendant, defense would be asserted vigorously.

Thurgood Marshall:

Mr. Senterfitt you say the great government studies shows that women with pre-school children have a high percentage of absentees?

Donald T. Senterfitt:

I did not Mr. Justice.

Thurgood Marshall:

What did you say about it?

Donald T. Senterfitt:

I did not Mr. Justice Marshall intend to suggest that government studies show, but that government published statistics and I cited in our brief in footnote 4 on page 28.

Thurgood Marshall:

What are the statistics of all men with pre-school children?

Donald T. Senterfitt:

I have not seen any Your Honor.

Thurgood Marshall:

And isn’t a fact that nobody thought differently, did they?

Nobody even thought of doing it, making such a study?

Donald T. Senterfitt:

I think not.

I think that it seems to be a general assumption.

Thurgood Marshall:

Well, what good are the figures on the women as compared to the men?

It has nothing to do with the —

Donald T. Senterfitt:

My understanding that the figures refer to indicating a higher incidence than those I’ve meat.

Thurgood Marshall:

With pre-school children?

Hugo L. Black:

The common sense.

Thurgood Marshall:

Is it the only (Inaudible)

Donald T. Senterfitt:

We have to —

Thurgood Marshall:

Common sense would tell you that.

I would just trying to give you some suggestion in case that goes bad.[Laughter]

Donald T. Senterfitt:

But Your Honor —

Warren E. Burger:

Mr. Senterfitt, are there some suggestion on what Court of Appeals en banc, the ten judges thought.

The Court of Appeals as a whole didn’t do anything with this case except refused to rehear it, isn’t that right?

Donald T. Senterfitt:

Yeah, that’s correct.

Warren E. Burger:

So that all we have is the views of the three members of the Court of Appeals, and views of other members of the Court of Appeals who thought — that they thought that to be heard by the entire court.

That’s the law.

Donald T. Senterfitt:

Three of them.

Yes, that’s correct sir.

I did not mean to imply that I had joined in the opinion.

Warren E. Burger:

And I don’t mean to —

Donald T. Senterfitt:

Yes sir.

Having our discussion on the state of the record fairly well preempted and concluded through the questioning rather than through a narrative.

We would simply reiterate that our position on this part is that there was simply nothing in the record before the District Court, under which or upon which it could rule any other way than it did on the motion for summary judgment.

On our point on the matter of jurisdiction of this Court, we would simply say that for the reasons that are amplified in our brief, we suggest that the petitioners failed to comply with the jurisdictional requirements of the statute with respect of the timeliness filing of a petition for certiorari and we would thank the court.

Hugo L. Black:

May I ask you one more question.

I have been curious for that, I am not able to get it.

What is this job?

Donald T. Senterfitt:

The job Your Honor is an assembly line requiring shift work.

Hugo L. Black:

Assembling of what?

Donald T. Senterfitt:

Of small electronic components that would become ultimate a part of a missile under the Martin Marietta’s defense contract work.

Hugo L. Black:

Now is it the extra-heavy or an anything?

Why either one should have any preference man or woman?

Donald T. Senterfitt:

I think on the contrary Your Honor that it is intricate work and not heavy work.

Donald T. Senterfitt:

It is not a heavy assembly type of thing.

These are —

Hugo L. Black:

Well, is there a reason why you should have any desire to have one instead of the other, unless it would be that a woman might be absent for when they have babies?

Donald T. Senterfitt:

This could be a very well become a valid reason.

Warren E. Burger:

Well, I have assumed up to this time Mr. Senterfitt that reason you have 75 or 80% women is that, again something I take judicial notice of from many years of contact with industry that women are manually much more adapt than men and they do this kind of work better than man do it, and that’s why you hire women.

Donald T. Senterfitt:

Your Honor, Mr. Chief Justice —

Warren E. Burger:

Just the same reason that most man hire women their secretaries, because they are better at it than men.

Donald T. Senterfitt:

I am so pleased I couldn’t say that because it appears to fall into this stereotype preconception concept that the Commission sees.[Laughter]

Warren E. Burger:

There is a preconception — as preconception that ‘s —

Donald T. Senterfitt:

We think that it appeals to reason.

Warren E. Burger:

The department of justice I am sure doesn’t have an male secretaries.

This is an indication of it.

They hire women secretaries, because they are better at it.

You hire women assembly people, because they are better and you link the distinction between women who have small children and women who don’t, so it appears on the record.

I think there is two minutes remaining Mr. Robinson.

William L. Robinson:

Thank you sir.

I think I will only need two minutes.

I merely wanted to point out a couple of things.

First, I agree with Mr. Senterfitt that the record is very cloudy, but I suggest that we cannot simply accept on the basis of this record the suggestion that the company does not in fact discriminate, because this company after all did not conciliate the case with the EEOC and it would seem that there was no discrimination present, it would be a classic case for successful conciliation by the Commission.

Then I would like to go on to suggest that the legal issue here is in fact squarely put.

The District Court rejected or struck those portions of our complaint which completed the legal theory that is sex-plus pre-school-age children having struck that as a matter of law that squarely puts the legal issue, but moreover in granting the motion for summary judgment.

The court specifically assumed for purposes of the record that they hired men with pre-school-age children and held that immaterial.

As a matter of law it had nothing to do with the material proposition of law in this case.

This squarely puts the legal issue on it and it should give us the opportunity to develop through discovery that legal issue and the evidence with respect to it.

Warren E. Burger:

You concede of course that Martin Marietta is not discriminating against women on this record?

William L. Robinson:

Yes sir.

What we have involved in this case Your Honor is, a subgroup of the group women who are also of course as a subgroup of the larger classification of women protected by Title VII.

One further remark, mere statistics alone Your Honor I suggest will not — mere statistics alone with respect to an absentee rate will not establish it be a (Inaudible).

There would rather have to be statistics with respect to an absentee rate coupled with a strong showing.

Thurgood Marshall:

Do you agree that (Inaudible)?

William L. Robinson:

Yes, under an appropriate pronouncement of the law by this Court.

Thurgood Marshall:

(Inaudible)

William L. Robinson:

I don’t either.[Laughter]

Thurgood Marshall:

[Inaudible].

William L. Robinson:

Well, Your Honor on this record —

Thurgood Marshall:

[Inaudible].

William L. Robinson:

Well, Your Honor, no.

Thurgood Marshall:

[Inaudible].

William L. Robinson:

You know that in deciding this case the District Court specifically excepted the fact or assumed the fact, he assumed it, it was not a fact.

I mean, there was no evidence.

Well, it’s an assumption the basis of which — on the basis of which he decided the case.

Thurgood Marshall:

On what basis that was (Inaudible)?

William L. Robinson:

The basis of his assumption was his belief the law didn’t prohibit an employer from the differencing between men with pre-school-age children and women with pre-school-age children and that’s what squarely puts the issue Your Honor.

It means that we should have an opportunity to develop that legal theory below.

Potter Stewart:

Now you are suggesting Mr. Robinson that, it wouldn’t be enough as a defense for the employer had to show statistical data indicating significantly higher absentee rate or accident rate for women with pre-school-age children as distinguished from other men and women?

William L. Robinson:

With pre-school-age children unless —

Potter Stewart:

Or particularly as distinguished from men with pre-school-age children, I suppose?

William L. Robinson:

Yes, particularly, that is the comparison, unless the company can also show that the normal operation of their business prohibits them from absorbing that rate of absenteeism.

It’s not merely that there was difference, Your Honor.

It’s that there is a difference which is necessary.

Potter Stewart:

It has a significant impact on a business operation such as that an assembly line operation is significantly hurt by absenteeism or something else?

William L. Robinson:

Not just significant hurt, it can no longer be normally operated, that’s the narrow way that Congress intended this exemption to be applied.

Potter Stewart:

That’s rather collateral to the basic issue in this case, isn’t it?

William L. Robinson:

It is.

Hugo L. Black:

As I understand it all you are asking is the case be referred (Inaudible) rendering summary judgment in this case?

William L. Robinson:

Of granting the motion to strike and summary judgment, yes sir.

Harry A. Blackmun:

Mr. Robinson I suppose as practical matter if this case goes back, would it be your guess it will developed on the proviso or exception on the statute?

William L. Robinson:

I don’t know Your Honor.

I frankly would rather doubt it, because I would imagine if the company is admitting here today that they already hire women with pre-school-age children that they are not going to seek to demonstrate that women with preschool age children can’t do the job.

Harry A. Blackmun:

Really I think there has been intimations to contrary though and my guess is that if it goes back, good lawyers will try to zero in on that and we will have an entirely different case when it comes back here.[Laughter]

William L. Robinson:

Yes sir, thank you.

Warren E. Burger:

Thank you Mr. Robinson.

Thank you gentlemen.

The case is submitted.