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 who are in regular active service not having voted in favor of it (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), Rehearing En Banc is also denied.
Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, and CARSWELL, Circuit Judges.
JOHN R. BROWN, Chief Judge, with whom AINSWORTH and SIMPSON, Circuit Judges, join, dissenting:
I dissent from the Court's failure to grant rehearing en banc.
Without regard to the intrinsic question of the correctness of the Court's decision and opinion, this is one of those cases within the spirit of F.R.A.P. 35 and 28 U.S.C.A. § 46 which deserves consideration by the full Court.
As the records of this Court reflect, we have within the very recent months had to deal extensively with Title VII civil rights cases concerning discrimination in employment on account of race, color, sex and religion.
This makes our role crucial. Within the proper limits of the case-and-controversy approach we should lay down standards not only for Trial Courts, but hopefully also for the guidance of administrative agents in the field, as well as employers, employees, and their representatives.
The full Court should look at the issue here posed. And now in the light of the standard erected — sex if coupled
Equally important, the full Court should look to correct what, in my view, is a palpably wrong standard.
The case is simple. A woman with pre-school children may not be employed, a man with pre-school children may.
It is the fact of the person being a mother — i. e., a woman — not the age of the children, which denies employment opportunity to a woman which is open to a man.
How the Court strayed from that simple proposition is not easy to define. Not a little of the reason appears to be a feeling that the Court in interpreting § 703(a) (1), 42 U.S.C.A. § 2000e-2(a) (1), prohibiting sex discrimination,
But in what immediately followed the Court then does a remarkable thing. Referring to EEOC (appearing only as amicus), it states: "The Commission, however, in its appearance before us has rejected this possible reading
It is this self-imposed interpretive straightjacket which, I believe, leads the Court to the extremes of "either/or" outright per se violation with no defense or virtual complete immunity from the Act's prohibitions. This it does through its test of "sex plus": " A per se violation of the Act can only be discrimination based solely on one of the categories i. e., in the case of sex; women vis-a-vis men.  When another criterion of employment is added to one of the classifications listed in the Act, there is no longer apparent discrimination based solely on race, color, religion, sex, or national origin."
Reducing it to this record the Court characterizes the admitted discrimination in this way. "The discrimination was based on a two-pronged qualification, i. e., a woman with pre-school age children. Ida Phillips was not refused employment because she was a woman nor because she had pre-school age children. It is the coalescence of these two elements that denied her the position she desired. In view of the above, we are convinced that the judgment of the District Court was proper, and we therefore affirm." 411 F.2d at 4 (Emphasis supplied).
If "sex plus" stands, the Act is dead.
In addition to the intrinsic unsoundness of the "sex plus" standard, the legislative history refutes the idea that Congress for even a moment meant to allow "nonbusiness justified" discrimination against women on the ground that they were mothers or mothers of pre-school children. On the contrary, mothers, working mothers, and working mothers of pre-school children were the specific objectives of governmental solicitude.
In the first place, working mothers constitute a large class
In this and the related legislation on equality of compensation for women
Congress could hardly have been so incongruous as to legislate sex equality
A mother is still a woman. And if she is denied work outright because she is a mother, it is because she is a woman. Congress said that could no longer be done.
Also pending before a panel of this Court are two analogous cases under § 17 of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., involving equality of compensation to women: No. 26960, Schultz v. First Victoria Nat'l. Bank; and No. 26971, Shultz v. American Bank of Commerce.
42 U.S.C.A. § 2000e-2(a) (1).
42 U.S.C.A. § 2000e-2(e).
"In answering the question: `What arrangements do working mothers make for child care?', the Department of Labor responded:
Furthermore, it is the policy of the Administration to encourage unemployed women on public assistance, who have children, to enter the labor market by providing for the establishment of day care centers to enable them to accept offers of employment. On August 8, 1969, President Nixon stated in his address to the Nation on welfare reforms:
Brief for EEOC at 11-12.
At the Senate Hearings, Secretary of Labor Wirtz pointed out:
See also Representative Green (109 Cong.Rec. 9199):