However, since those cases were decided, the courts have started dealing with the issue and a trend toward invalidating the State restrictive laws now seems to be developing.

The first case to announce the change was Rosenfeld v. Southern Pacific Co., 293 F. Supp. 1219 (C. D. Cal. 1968), appeals pending Nos. 23, 983 and 23, 984 (9th Cir.) decided six months after the Mengelkoch decision. Leah Rosenfeld, an employee of 22 years, bid for the position of agent-telegrapher with Southern Pacific. Although she was the most senior employee bidding for the job, it was awarded to a male with less seniority, on the grounds that to award the job to plaintiff would violate the California hours and weight laws restricting the employment of women and would also violate company policy. The court held that the California hours and weight legislation discriminates against women on the basis of sex, that it does not constitute a bfoq, and that therefore the legislation is void as contrary to the supremacy clause.

The Rosenfeld court did not discuss the issues at length, but the Fifth Circuit did do so in the landmark case of Weeks v. Southern Bell Telephone & Telegraph Co., 408 F. 2d. 228 (5th Cir. 1969), reversing in pertinent part 277 F. Supp. 117 (S. D. Ga. 1967). In Weeks, an employee of 19 years bid for the job of switchman, which was again granted to a male with less seniority, ostensibly on the ground that Georgia weight regulation (30 pounds limit for women) forbade awarding the job to a woman. This was in fact the ground relied on by the District Court in its holding for the defendant.

After the District Court had ruled, Georiga repealed the specific weight limit and in its place a rule was promulgated which applied also to men and limited the lifting of weights only ". to avoid strains or undue fatigue." Even though this legislation did not apply to all women, the company-significantly-still refused to consider plaintiff for the switchman position. On appeal, the company relied on the District Court's finding that the job was strenuous and on its right to use a private restrictive 30 pound weight policy for women only, contending that both factors came within the bfoq exception. The Circuit Court reversed the lower court and set forth a test for establishing a bfoq exception:

The employer has the burden of proving that he has reasonable cause to believe, that is a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. [Emphasis added.]

It held that the company had failed to meet this burden, since it had submitted no evidence on the issue, but rather had relied on unproven, stereotyped assumptions about the lifting abilities of women. Finally, the court dismissed the company's alleged concern about emergencies and late-night work, in farreaching language:

A speculative emergency like that could be used as a smoke screen by any employer bent on discriminating against women. It does seem that switchmen are occasionally subject to late hour call-outs. Of course, the record reveals that other women employees are subject to call after midnight in emergencies. Moreover, Title VII rejects just this type of romantic paternalism as unduly Victorian and instead vests individual women with the power to decide whether or not to take on unromantic tasks. Men have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unromantic tasks is worth the candle. The promise of Title VII is that women are now to be on equal footing. We cannot conclude that by including the bona fide occupational qualification exception Congress intended to renege on that promise. [Emphasis supplied.]

Of course, the Weeks decision is not directly relevant to the issue of the conflict between Title VII and restrictive State laws, since the Georgia regulation was repealed before the appellate decision. However, it should be noted that the Weeks court cited the Rosenfeld decision with approval. More important, it established a test for the bfoq exception which could have a decisive role in invalidating restrictive State laws. It is difficult to imagine how States, employers, or labor unions are going to prove, for example, that all or substantially all women cannot lift more than 30 pounds, work more 40 hours a week, or serve drinks safely and efficiently. Even the stereotyped model of the suburban housewife and mother is required to do all of these tasks on a daily basis. Babies and groceries often weigh more than 30 pounds, work continues 12 hours a day, 7 days a week (84 hours), and it is certainly common social practice

now for men and women to consume alcoholic beverages together without disorder, and female bartenders are common all over the country.

Finally, the Weeks decision is relevant to the conflict issue in its understanding that a broad interpretation of the bfoq exception would have the effect of completely nullifying Title VII.

The Seventh Circuit followed the Weeks lead, when it invalidated another company-imposed weight restriction (35 pounds) applied to women only in Bowe v. Colgate-Palmolive Co., 416 F. 2d 711 (7th Cir. 1969). This case also has ramifications which could affect the resolution of the Federal-State law conflict. First, Rosenfeld is once again noted with approval. Second, the court holds that although the weight requirement is invalid, if applied only to women, the company can retain the weight lifting requirement, but apply it to all employees, both male and female. Any employee would be allowed to bid for any job, with an opportunity to prove his or her ability to do it. This approach could also be followed in those cases where State laws give some kind of benefit. In fact, this is being done in a suit brought on behalf of male farmworkers in Wisconsin. Under Title VII and the 14th Amendment, they are seeking an injunction which would in effect extend the protection of the State minimum wage law to men, Bastardo v. Warren, No. 69-C-143 (M) (W.D. Wis.). The facts of the Bowe case are also of interest in the patterns of discriminatory employment practices which they reveal. It is first of all apparent that the restrictive State laws can have an even greater effect than their strictly legal force. Even though there was no State weight law, Colgate-Palmolive deliberately set out to copy existing laws in other States. Revealingly, the company did not do so until after passage of Title VII, under which the existing sex-segregated job system in the plant would be illegal. By setting up a weight limit, the company in effect managed to retain a sex-segregated job system, at least for

women.

Ironically, men did get some benefit from the new policy, which should be more fully explained. Under the old system, the plant was divided into male and female jobs-the highest pay in the female category being equal to the lowest pay in the male category. Under the new system, the 35 pound limit was used to keep the women in the same lowest-paying jobs, but allowed men to compete for these jobs also. This would not seem to be an advantage, until it is realized that workers were laid off on weekly basis, with bidding for the available jobs on a seniority basis. Thus, the most senior employees with first choice were least likely to be laid off every week. Under the old system, each sex could bid only for jobs within its sex classification. Under the new system, all could bid for any job for which they qualified. Since men qualified for all jobs, but women only qualified for the under-35 pound categories, men were now given a competitive advantage as to lay-offs over women with greater seniority. For example, if one supposes 50 under-35 pound jobs and another 150 plant-wide jobs, women could only bid for 50 jobs before being laid off. In other words, the company's "compliance" with a Title VII, designed to help women, succeeded in keeping women in the lowest paying jobs while increasing their competitive disadvantage with men as to lay-offs."

The Circuit Court reversed the District Court ruling that the weight limitation was reasonable and therefore a valid bfoq. Like the Weeks court, it realized that such a broad construction of the bfoq would in effect nullify Title VII itself, and refused to adopt a test of reasonableness in establishing a bfoq.

The Bowe decision could also affect the resolution of the State law-Federal law conflict by its realistic treatment of weight limitations. The court sees the lower court's assumption that State laws were not affected by Title VII as erroneous, but goes further. It adopts the approach of the Secretary of Labor that individual qualifications and conditions should always be considered, and concludes that:

Most of the State limits were enacted many years ago and most, if not all, would be considered clearly unreasonable in light of the average physical development, strength, and stamina of most modern American women who participate in the industrial work force.

Rosenfeld, Weeks, and Bowe are the leading cases in this area, but other cases indicate that other courts are heading in the same direction. In Richards v.

17 These facts are outlined in the lower court decision, 272 F. Supp. 332, 340-347 (S.D. Ind. 1967).

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Griffith Rubber Mills, 300 F. Supp. 338 (D. Ore. 1969), a company was held to have violated Title VII by awarding two jobs of "Press Operator B" to men with less seniority than the woman applicant. The company relied on two factors for a bfoq defense: (1) a union contract requiring two ten-minute rest periods for female employees, and (2) the Oregon weight lifting regulation. Chief Judge Solomon ruled that the union contract could not be used to discriminal on the basis of sex, and that the Oregon regulation was void under the supremacy clause citing Rosenfeld and Longacre v. Wyoming, 448 P. 2d 832 (1968). In interpreting the bfoq, the court noted that, "Except in rare and justifiable circumstances, 42 U.S.C. § 2000e-2(e), the law no longer permits either employers or the States to deal with women as a class in relation to their employment to their disadvantage." [Emphasis added.]

Longacre, cited by the Richards court, was not directly in point, since Title VII was not in issue, but it does reinforce the trend toward invalidating restrictive State laws. The State court there held that the State law prohibiting the employment of female bartenders was repealed by implication by the State Fair Employment Practices Act, which prohibited discrimination in employment on the basis of sex.

Another bar maid ordinance is involved in McCrimmon v. Daley, 61 LC 9352 (7th Cir. 1969). The District Court had dismissed, sua sponte, the challenge to the Chicago ordinance-prohibiting the employment of female bar maids-on the ground that it was not subject to constitutional attack, relying on Goesart v. Cleary, 335 U.S. 464 (1948). The Circuit Court reversed the dismissal, hinting that McCrimmon could be distinguished from Goesart, and also that there might be a violation of Title VII. (This issue had not been raised in District Court.) The case was remanded for a hearing on these issues.

One final case which could be used by the courts to help invalidate State laws is Cheatwood v. South Central Bell Telephone, 303 F. Supp. 754 (M.D. Ala 1969). In an opinion by Judge Johnson, the author of the Weeks opinion, the court dealt at length with another company-imposed weight limit of 40 pounds, which had been used to deny the job of commercial representative to a woman. The court swiftly dismissed the company's supposed fears about a woman changing tires and collecting money in bars and poolrooms, characterizing the first as a make-weight and the second as having no functional relationship to sex (adding that no one was forced to bid for the job).

More interesting, however, was the prolonged discussion of the weight issue. For the first time, proof was taken on the issue of whether all or substantially all women were incapable of performing the job safely and efficiently (the Weeks test for a bfoq). The job did require lifting heavy coin box cases, varying from 45 to 80 pounds and averaging 60 pounds. Occasionally, a case weighed over 90 pounds. Two doctors testified on the musculo-skeletal and genetic differences between men and women. The doctor which the court found more reliable stated that 25 to 50 percent of all women could perform the job; and even the defendant's doctor admitted that at least some women could perform the job. .On the basis of this testimony, the court held that the employer had not met the burden of proof necessary to establish a bfoq, and enjoined the employer to reconsider all applicants for this job on the basis of their individual qualifications. The opinion is noteworthy for its scientific treatment of women's lifting abilities. Such an approach would go far toward invalidating the restrictive State laws.

Two cases which do not fit into the above general pattern should be mentioned. The first is Gudbrandson v. Genuine Parts Co., 297 F. Supp. 134 (D. Minn. 1968). A company-imposed weight limit (40 pounds) was here upheld. However, the case was decided only a month after the Rosenfeld decision, and relies on the lower court decisions in Weeks and Bowe, both of which were subsequently overruled, as well as on an early EEOC guideline which has also been rejected. The case would thus appear to carry very little weight as precedent.

More important is the recent case of Phillips v. Martin-Marietta Corp. 411 F. 2d 1 (5th Cir. 1969), in which the court held it was not discrimination based on sex for an employer to refuse to hire mothers of pre-school age children when father of pre-school age children could be hired, since sex was not the only factor involved in the decision. Of course, the potential impact of such a doctrine is very broad; as Chief Judge Brown pointed out in his dissent to the denial of a rehearing, 416 F. 2d 1257 (5th Cir. 1969). "If 'sex plus,' stands, the Act is dead." Accordingly, the NAACP Legal Defense Fund has agreed to

take the case for an appeal to the Supreme Court. However, the case is not directly relevant to the question of whether restrictive State laws will be allowed to stand under the bfoq exception, or will fall under the supremacy clause, since the company did not raise a bfoq defense. The issue, as formulated by the court, was whether the company policy constituted discrimination based on sex, not whether such discrimination was allowed under the bfoq exception.

In conclusion, then, it appears that, starting with Rosenfeld, recent cases support a trend toward invalidating restrictive State laws applying to women only. This trend is evidenced by invalidation either of State laws or of company policies that parallel State laws. The relevance of the latter type of case is strengthened by court approached to the bfoq which could readily be applied to invalidate the State laws.

PART VI: CONCLUSION

The analysis above shows that State labor laws applying to women only are discriminatory and harmful, and that they have been rejected by the EEOC and the Federal courts. It should also be pointed out that NOW (National Organization for Women), the most establishment-oriented of the new women's rights groups, is also strongly opposed to these State laws, stating, "NOW believes that State labor standards which are applicable only to women are inconsistent with the concept of equality." 18 NOW, also supports the Equal Rights Amendment. Betty Friedan, the past president of NOW, also had this to say about the new EEOC regulations of August 19, 1969:

The EEOC finally ruled that equal employment opportunity under the Federal law superseded the so-called State protection laws-which means that we have won all of our major goals reversing the original travesty of Federal enforcement of the civil rights' law on sex discrimination which led to NOW's founding in 1966.1

10

Somo labor unions have also taken a stand against the State laws. In Wisconsin, the first State Women's Conference for the AFL-CIO was held on March 7, 1970. The women delegates passed resolutions in favor of the Equal Rights Amendment and opposing State labor laws for women. They stated: This Wisconsin State AFL-CIO Women's Conference recognizes that the protective laws for women passed in the early 1900's may well have met the needs of the time, but today serve only to limit opportunity in employment for women and discriminate against both men and women.

We further realize that certain decent minimum standards of treatment for all workers regardless of sex are necessary.

20

As early as May 1967, Counsel for the International Union, UAW, and the International Chemical Workers testified at EEOC Hearings in opposition to the State labor laws. Steven Schlossberg, for the UAW, stated that:

More and more employers have been able to discriminate against women because of anachronistic, so-called "protective" State laws regulating the employment of women. Because of State laws and regulations limiting the weights a woman may lift, or the hours a woman may work, employers have been able to deprive women of jobs, promotions and overtime. Provisions in UAW collective bargaining contracts prohibiting discrimination and regulating seniority are avoided and evaded through employer reliance on these outmoded laws.

It is a plain fact of life that the discrimination against women in the employment market is class discrimination almost as gross and as evil as race discrimination. It cannot be rectified through a faint-hearted approach.

21

David Feller, a distinguished labor attorney, speaking for the International Chemical Workers, found the same patterns of discrimination against women under the cover of State labor laws:

And what is in fact happening as a result of the simultaneous existence of State protective legislation and Title VII is that the impact of the law as it is being administered today (a policy changed since 1967) is to deprive women of job opportunities-not simply not to help them-but actively hurt them."

18 NOW brochure.

19 Friedan, Newsletter to Members of NOW, November 1969. 2.

22

20 Proceeding of Women's Conference, Labor Temple, Wisconsin Rapids. Wisconsin, March 7, 1970, 7-8.

Statement of the International Union, UAW to the Equal Employment Opportunity Commission at Public Hearing on May 2, 1967, 4, 9. 22 Transcript of Hearings, EEOC, May 3, 1967, 230-231.

Finally, many States have modified 'State policy in view of Title VII. Measures have included: outright repeal of laws (6 States); rulings that State laws are superseded by Title VII (7 States); rulings that Title VII prevents prosecution under State laws (2 States); exempting women workers who are subject to the Fair Labor Standards Act from State hours laws (6 States); providing exemptions for women workers who sign special agreements (1); and, extending laws to men (1).23

In conclusion, then, conditions today do not warrant support for State labor laws which discriminate against women on the basis of sex. The EEOC, Federal courts, women's groups, labor unions, and States have all begun to recognize this fact. Therefore, "protective" labor laws for women should no longer furnish any basis for opposition to the Equal Rights Amendment.

Senator Cook. We will now proceed and I will turn over the introduction of the first, our first distinguished witness to my senior member on the committee, the distinguished Senator from Michigan, Senator Hart.

Senator HART. I, Mr. Chairman, came only and at the cost of inconveniencing some witnesses at another subcommittee to welcome the most distinguished lady from Michigan. This record needs no recital of the exceptional career that has been hers. I just want to remind my colleagues on the Judiciary Committee that Mrs. Griffiths served effectively and with distinction in the Michigan House of Representatives, graced the Court of Criminal Jurisdiction in Detroit as its chief judge, is known to all of us as the first woman to have served on the Ways and Means Committee, has been suggested I think over the years more frequently than most people as a very logical appointee to the Supreme Court of the United States. Certainly, Michigan Republicans and Democrats alike are proud of Martha Griffiths.

STATEMENT OF HON. MARTHA W. GRIFFITHS, U.S. REPRESENTATIVE IN CONGRESS FROM THE 17TH DISTRICT OF THE STATE OF MICHIGAN

Mrs. GRIFFITHS. Thank you, Senator. That is very kind of you. Thank you very much, Senator Cook, for your presence here and for your wonderful support. And thank you for permitting me to testify on behalf of this amendment.

I am sure, Senator Cook, that you regret as much as I do the fact that the committee has not had time to hear the representatives from the Republican women, the General Federation of Women's Clubs, the National Association of Women Lawyers, the UAW, the Teamsters, the Steelworkers, the American Federation of Teachers, and many other groups who sought to testify on behalf of this amendment. Nevertheless, I don't want anyone to delay now.

I have listened to as much of this testimony as I could, and I would like to answer some of the arguments to this amendment.

Much has been made of the fact that this amendment would repeal the 40-hour week for women. Scant notice has been paid to the fact that the EEOC has already announced that this law is in conflict with the Civil Rights Act of 1964 and is therefore invalid. The attorneys general and/or the supreme courts of some 19 States have already

23 Correct as of July 31. 1970. Government Actions Relating to State Protective Laws for Women Since the Enactment of Title VII of the Civil Rights Act, C. East, Citizens' Advisory Council on the Status of Women, Washington, D.C. 20210.