Rehearing En Banc Denied July 16, 1971.
CUMMINGS, Circuit Judge.
This appeal raises the question whether United Air Lines, Inc. ("United") violated Section 703(a) (1) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a) (1)) by discriminating against plaintiff because of her sex.
Prior to June 19, 1966, plaintiff was employed by United as a flight cabin attendant or stewardess. On that date, she was discharged for violating a company policy in effect at that time which required that stewardesses must be unmarried.
In August 1966, plaintiff filed a charge with the Equal Employment Opportunity Commission alleging that her discharge constituted unlawful discrimination because of sex in violation of Section 703(a) (1) of the Civil Rights Act of 1964. Processing of this and similar charges against airlines was suspended by the Commission pending completion
On cross-motions for summary judgment, the district court, 308 F.Supp. 959, found that plaintiff was discharged about June 19, 1966, because of her marriage. Although United then employed only unmarried stewardesses, it permitted its male stewards to be married. The court held that United's discharge of plaintiff was an unlawful employment practice and granted her motion for summary judgment. The court concluded that she was entitled to reinstatement, including the restoration of her seniority and longevity rights. Jurisdiction was retained in order to determine her loss of earnings and whether the same relief should be accorded to similarly discharged United stewardesses.
Simultaneously, the court entered a decree enjoining United from discriminating against plaintiff because of her sex and ordering United to restore her to employment and to pay her compensation "for all pay lost from the time of her illegal discharge on June 19, 1966, to the date of her reinstatement." David J. Shipman of the Chicago Bar was appointed master in chancery to make a recommendation for a money decree. Plaintiff was ordered to submit suggestions with respect to "the issue of whether the scope of the relief herein ordered should be made applicable to other stewardesses discharged by defendant." Further proceedings below were stayed while an interlocutory appeal was perfected pursuant to Section 1292(b) of the Judicial Code. 28 U.S.C. § 1292(b). We affirm.
United's No-Marriage Rule for Stewardesses Discriminates on the Basis of Sex
United first disputes the finding of the district court that the no-marriage rule for stewardesses involves discrimination because of sex. Relying upon Cooper v. Delta Air Lines, 274 F.Supp. 781 (D.C.La.1967), United urges that the qualification merely distinguishes between classes of employees within the job category of stewardess in the same manner as educational or physical requirements.
In 1965 the Equal Employment Opportunity Commission considered the applicability of Section 703(a) (1) to discrimination against married women and determined that
This interpretation of the Act is "entitled to great deference." Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S.Ct. 849, 28 L.Ed.2d 158. We adopt it as both reasonable and consistent with the legislative policies and history of Title VII.
The scope of Section 703(a) (1) is not confined to explicit discriminations based "solely" on sex.
Viewing the class of United's married employees, it is clear that United has contravened Section 703(a) (1) by applying one standard for men and one for women. Cf. Phillips v. Martin Marietta Corp., supra. Concededly, the marital status rule applicable to stewardesses has been applied to no male employee, whatever his position. More pointedly, no male flight personnel, including male flight cabin attendants or stewards, have been subject to that condition of hiring or continued employment.
It is irrelevant to this determination of discrimination that the no-marriage rule has been applied only to female employees falling into the single, narrowly drawn "occupational category" of stewardess. Disparity of treatment violative of Section 703(a) (1) may exist whether it is universal throughout the company or confined to a particular position. Nor is the fact of discrimination negated by United's claim that the female employees occupy a unique position so that there is no distinction between members of opposite sexes within the job category. Considerations of the peculiar characteristics of the position only pertain to the claim of a bona fide occupational qualification under Section 703(e) (1). See 29 CFR § 1604.3(b);
The Marital Status Rule Is Not Justified as a Bona Fide Occupational Qualification
United's second contention is that under Section 703(e) (1) (note 3 supra) the no-marriage rule reflects a bona fide occupational qualification for the position held by stewardesses. Its argument rests upon the acceptance of three propositions: first, the duties currently performed by stewardesses are uniquely different
We find it unnecessary to consider the validity of United's claim that sex constitutes a bona fide occupational requirement for the job of airline stewardess. Even assuming that Section 703 (e) (1) might justify hiring only females for that position, that conclusion would not automatically legitimate the no-marriage rule imposed exclusively upon stewardesses. A valid discrimination in favor of women generally in filling that occupational position need not warrant the imposition of an additional qualification which operates discriminatorily against those employees by comparison to United's male employees. United's no-marriage rule must stand upon its own feet. If, and only if, that requirement reflects an inherent quality reasonably necessary to satisfactory performance of the duties of stewardesses can the no-marriage rule be supported. See 29 CFR § 1604.3(b) (note 5 supra).
United has failed to offer any salient rationale in support of its marital status policy. The only reason specifically addressed to that rule is that United was led to impose the requirement after it received complaints from husbands about their wives' working schedules and the irregularity of their working hours. This is clearly insufficient. Section 703(e) (1) specifically requires a correlation between the condition of employment and satisfactory performance of the employees' occupational duties. The complaints of spouses do not suffice as an indicator of employee competence. Moreover, by its very terms, the narrow exception in Section 703(e) (1) calls for employers to treat their employees as individuals. United's blanket prophylactic rule prohibiting marriage unjustifiably punishes a large class of prospective, otherwise qualified and competent employees where an individualized response could adequately dispose of any real employment conflicts.
Similarly, the arguments advanced by United in support of its policy of hiring only females for this position fall short of establishing a basis under Section 703(e) (1) for its no-marriage rule. The marital status of a stewardess cannot be said to affect the individual woman's ability to create the proper psychological climate of comfort, safety, and security for passengers. Nor does any passenger preference for single stewardesses provide a valid reason for invoking the rule. See 29 CFR § 1604.1 (a) (iii);
United has presented no direct, rational, or reasonably limited connection between marital status, job performance, and its no-marriage rule for stewardesses. United has failed to explain why marriage should affect female flight cabin attendants' ability to meet the requirements of that position while at the same time leaving unimpaired the capabilities of male flight personnel, particularly stewards. Nothing in the job descriptions given by United offers a basis for that disparate treatment. Nothing in the institution of marriage necessarily compels the distinction. Accordingly, we hold that the district court properly granted summary judgment in favor of the plaintiff on this issue.
United's Defense of Good Faith Reliance Upon the Written Interpretation and Opinion of the Equal Employment Opportunity Commission Is Inapplicable
United also asserts that its rule should not give rise to liability under Title VII of the Civil Rights Act since it "was in good faith, in conformity with, and in reliance on [a] written interpretation or opinion" of the Equal Employment Opportunity Commission within the meaning of Section 713(b) (1) of the Act.
On July 1, 1965, the Commission published a regulation defining the phrase "written interpretation or opinion of the Commission" in Section 713(b) as having reference to
This agency interpretation of the operative statutory language reasonably confines reliance justified under Section 713(b) to considered official expressions of opinion taking two specifically defined forms. As Judge Wisdom observed in Local 189, United Papermakers v. United States, 416 F.2d 980, 997 (5th Cir. 1969), certiorari denied, 397 U.S. 919, 90 S.Ct. 926, 25 L.Ed.2d 108, "[a] broader reading might bind the Commission to informal or unapproved opinions volunteered by members of its staff."
United does not contend that it relied upon anything published in the Federal Register by the Commission. Instead United relies upon a so-called "letter of opinion" of the Commission's General Counsel as to the applicability to the airline industry of the Commission's ruling on discrimination against married women.
Apart from the formal insufficiencies apparent from United's affidavit, the content of the September 22, 1965, Commission memorandum itself also fails to support a claim of good faith reliance upon an official opinion letter. The memorandum merely states that definitive judgment on the legality of no-marriage rules must be suspended pending further determination by the Commission of possible Section 703(e) (1) exemptions. The only "opinion" expressed was
Intentional Violation Unnecessary
United seeks to escape responsibility on the ground that it was not intentionally violating Title VII. Such an argument has been rejected by the Fifth and Tenth Circuits, which have construed "intentionally" in Section 706 (g) as meaning the employment practice must be deliberate rather than accidental.
The District Court Had Jurisdiction to Provide Relief to Individuals Similarly Situated
As part of its decree, the district court retained jurisdiction to consider the possibility of extending relief to other stewardesses similarly discharged by United's enforcement of its no-marriage rule. Accordingly, the court ordered plaintiff to submit amended or supplemental pleadings, or suggestions on that matter, and gave United leave to respond. United attacks this portion of the decree as inconsistent with the policy of Rule 23 of the Federal Rules of Civil Procedure. It urges that the "class" aspect of a Title VII action must be established prior to judgment on the merits. We need not anticipate and resolve the array of issues which may arise in the determination of the propriety of class relief. In its present posture, this case presents the bald question of the court's power to grant such relief where justice requires such action. In our opinion, Rule 23 to the contrary notwithstanding, the district court possesses such power in Title VII cases.
The vindication of the public interest expressed by the Civil Rights Act constitutes an important facet of private litigation under Title VII. In Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969), Judge Kerner recognized that such a suit is necessarily a class action "as the evil sought to be ended is discrimination on the basis of a class characteristic, i. e., race, sex, religion or national origin." See also Jenkins v. United Gas Corporation, 400 F.2d 28, 33 (5th Cir. 1968). At stake, therefore, are the interests of the other members of that class, and the court has a special responsibility in the public interest to devise remedies which effectuate the policies of the Act as well as afford private relief to the individual employee instituting the complaint. Bowe v. Colgate-Palmolive Co., 416 F.2d at p. 715; Hutchings v. United States Industries, Inc., 428 F.2d 303, 311-312 (5th Cir. 1970); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 428-429 (8th Cir. 1970).
In affirming the district court's power to consider extending relief beyond the named plaintiff, we express no opinion on the ultimate decision to be reached upon remand. Whether such relief is appropriate in this case must first be determined by the court below after consideration of the arguments advanced by the parties, including references to the safeguards of Rule 23. We merely hold today that the court may so proceed.
Injunctive Relief Was Permissible
Finally, United asserts that injunctive relief was improper because it had rescinded its no-marriage policy and had reinstated the plaintiff. However, when United rescinded its no-marriage policy in February 1968, previously terminated stewardesses were to be reinstated only on condition of their waiver of back pay, so that all effects of United's discriminatory policy had not been erased. Indeed, United's first offer to reinstatement to this plaintiff was also conditioned upon waiver of her back pay, and its final offer of reinstatement with back pay was not until January 3, 1969, after the filing of this complaint.
The decree below is affirmed, and the cause is remanded for further proceedings.
STEVENS, Circuit Judge (dissenting).
If, except for his sex, plaintiff's husband had precisely the same job qualifications as plaintiff, he would not have been eligible for employment as her replacement. United's requirements for employment as a flight cabin attendant simultaneously discriminated against Mr. Sprogis because of his sex and against Mrs. Sprogis because of her sex.
Since there are only two sexes, a reading of § 703(a) (1) of the Civil Rights Act of 1964
I.
Plaintiff does not claim that United has been guilty of any company-wide discrimination against females. About
At the end of that year United employed 48 stewards and 3,289 stewardesses. The stewards were employed only on Hawaiian flights, and were required to have job qualifications which plaintiff did not possess.
Although the qualifications for the position of male steward were narrowly drawn, stewardesses were one of United's largest classification of employees. Neither the classification of stewardesses, nor the limited category of male stewards on Hawaiian flights, is challenged under § 703(a) (2). The issues arise under § 703(a) (1) and, in my opinion, would be no different if United had never employed a male steward.
Under the Commission's analysis of the statute, the validity of the no marriage rule turns on the question whether United can justify female sex as a bona fide occupational qualification for the position of stewardess under § 703(e). The Commission withheld any expression of opinion about the no marriage rule for over two years,
As a matter of statutory construction, the Commission's analysis of the relationship between plaintiff's prima facie case and the BFOQ defense is untenable. The scope of the defense is not coextensive with the coverage of § 703(a) (1).
In this case I therefore assume that the question whether a requirement for employment has any job related justification is a matter which, although relevant under § 703(e), is of no significance whatever under § 703(a) (1). The question is simply whether the requirement discriminates against an individual because of his or her "* * * race, color, religion, sex, or national origin."
When plaintiff's marriage made her ineligible for continued employment as a stewardess, she was offered, and rejected, an opportunity to remain in United's employ in an available ground capacity in accordance with her seniority and qualifications.
The no marriage rule was only one of several requirements for the position of stewardess. Each of the requirements, whether rational or irrational, was an impediment to employment as a stewardess. All of the requirements discriminated against stewardesses as opposed to other females.
As I read § 703(a) (1), a prima facie case of discrimination is established by showing that a rule has a differential impact on one of the classes of people protected by the Act.
Under this test, plaintiff was not the victim of discrimination because of sex, whether we assume the relevant classification is all United employees or just flight cabin attendants,
I do not believe the Commission's contrary view is entitled to great deference because it is predicated on an untenable analysis of the statute. I have greater deference for Judge Cummings' analysis, but nevertheless am persuaded that he adopts a test of discrimination that was not intended by Congress.
As I understand the majority's test, it does not focus on the impact of a rule on the employment opportunities of the members of one sex as opposed to the other; instead, the critical inquiry is whether the rule is an irrational impediment derived from a stereotyped attitude toward females. As a matter of policy, the majority's view may not only be contemporary but also wise.
In my opinion, United did not violate § 703(a) (1) by discharging plaintiff from a position which she could not have retained if she had been a man.
II.
In September, 1965, the Commission issued an opinion that a rule restricting the employment of married females but not males is a prohibited discrimination because of sex. The opinion did not expressly indicate that it was intended to apply to a company or job classification in which all employees were members of the same sex. On behalf of various air lines, including United, the Air Transport Association therefore asked the Commission if its opinion applied to stewardesses. The written response of the Commission's General Counsel on September 22, 1965, stated, in part:
The record raises issues of fact as to whether this document was intended merely as an internal memorandum for the guidance of the Commission's staff or, as United contends, as an opinion upon which the air lines could safely rely. As I read § 713(b),
III.
A jurisdictional precondition to the commencement of a private action under Title VII of the Civil Rights Act of 1964 is the filing of a charge with the Commission within 90 days after the occurrence of the unlawful employment practice. Choate v. Caterpillar Tractor Company, 402 F.2d 357, 359 (7th Cir. 1968). In Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969) this court read this condition out of the statute for members of a class represented by a plaintiff who had filed the required charge.
Nor can I find any basis in Rule 23 of the Federal Rules of Civil Procedure for permitting an individual claim to be converted into a class action after a decision on the merits. Rule 23(c) (1) provides:
At a minimum, this rule requires the class to be defined before the merits of the case have been decided. This requirement is, of course, of special importance in litigation involving claims for damages or back pay. A procedure which permits a claim to be treated as a class action if plaintiff wins, but merely as an individual claim if plaintiff loses, is strikingly unfair.
I respectfully dissent.
FootNotes
"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 race, color, religion, sex, or national origin; * * *." 42 U.S.C. § 2000e-2(a) (1).
The agreement does not abandon the single status requirement with respect to hiring. This Court expresses no opinion on the legality of that portion of the agreement which permanently severs any pregnant stewardess from United's employment.
"It may be that under certain circumstances, such a rule [against married females] could be justified within the meaning of Section 703(e) (1) of Title VII. We express no opinion on this question at this time except to point out that sex as a bona fide occupational qualification must be justified in terms of the peculiar requirements of the particular job and not on the basis of a general principle such as the desirability of spreading work."
"The Commission will find that the following situations do not warrant the application of the bona fide occupational qualification exception: * * *
"(iii) The refusal to hire an individual because of the preferences of co-workers. the employer, clients or customers except as covered specifically in subparagraph (2) of this paragraph [permitting sex to be a bona fide occupational qualification for the purpose of authenticity or genuineness, as in the case of an actor or actress]."
"In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by such person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission." 42 U.S.C. § 2000e-12(b).
"If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice)." 42 U.S.C. § 2000e-5(g).
"Even if Respondent did not employ male flight cabin attendants, our Decision would be the same." (A. 19)
"Subject to a further interpretation of Title VII by the Commission, it would be my opinion that the rule announced by Chairman Roosevelt would not apply to airline stewardesses. If an airline may give preference to females only as stewardesses, i. e., if sex is a bona fide occupational qualification for the job of airline stewardesses, it would follow that an airline company could impose further qualifications with respect to such jobs and require that the employee be single and under a certain age. These additional qualifications would be consistent with the original qualification that the employee be a woman."
See also:
"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." (Emphasis added.) Phillips v. Martin Marietta Corp., 416 F.2d 1257 (5th Cir. 1969) dissenting opinion of Judge Brown at p. 1259.
"* * * One further consideration leading to the adoption and retention of the no-marriage rule has been United's concern over the increased likelihood of pregnancy which marriage presents. Married stewardesses with unknown or intentionally concealed pregnancies represent dangers to themselves and to their unborn children and a potential source of embarrassment to the Company. Morning sickness and miscarriage due to rough weather exemplify the hazards which United wishes to avoid." (A. 64-65)
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