Untitled Texas Attorney General Opinion ( 1969 )


Menu:
  •                        March 18, 1969
    d"""'""'
    Honorable Tommy V. Smith             Opinion NO. ~-363
    Commissioner
    Bureau of Labor Statistics           Re:    Whether under federal law
    State of Texas                              Article 5172a, V.C.S., con-
    Capitol Station                             flicts with Title VII, Civil
    Austin, Texas 78711                         Rights Act of 1964, and is
    invalid.
    Dear Mr. Smith:
    You have requested an opinion of this office as to
    whether the following statute, Article 5172a, Vernon's Civil
    Statutes, is invalid by reason of Title VII of the Civil
    Rights Act of 1964.
    Vernon's Civil Statutes, Article 5172a
    SUMMARY OF ARTICLE   5172a
    Sections 1 through 3 limit the number of hours
    that a female can work to 9 hours in a twenty-four
    (2~4)hour period, or one day period; or 54 hours
    in a one week period, for certain types of in-
    dustries and businesses within the State. Sections
    2 and 3 provide for overtime pay.
    Section 4 makes it mandatory for the employers
    mentioned in Sections 1 thru 3 to provide seats for
    female employees when not engaged in the active
    duties of their employment.
    Section 5 sets out the types of female employ-
    ment that are excepted from Sections 1 through 4.
    Part 6 of Section 5 establishes the number of hours
    that female employees in banks can work in one day
    or one week.
    Sections 5a and 6 set out exceptions and exemptions
    to Sections 1 through 5 in case of extraordinary
    emergencies, war, or national emergencies. Sections
    7 through 13 deal with hearings under Sections 5a
    and 6, failure to comply with the Act, and punish-
    ment for violations of the Act.
    - 1789-
    .
    Honorable Tommy V. Smith, Page 2, (M-363)
    The pertinent parts of the 1964 Civil Rights Act which
    prohibit discrimination because of sex are found in 42 U.S.C.A.,
    Section 2000e-2, and read as follows:
    n (a) 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; or
    (2)  to limit, segregate, or classify his employees
    in any way which would deprive or tend to deprive any
    individual of employment opportunities or otherwise
    adversely affect his status as an employee, because
    of such individual's race, color, religion, sex, or
    national origin."
    Before any opinion can be given, it is first necessary
    to look to the history and purpose of Article 5172a.   In the
    early part of the ZOth~Century many states including Texas
    passed,legislation to protect female employees. Because prior
    to the passage of these "female protection laws" some em-
    ployers had exploited both female and ~child employees with
    little regard to the health or well being of such employees.
    There are many cases that have upheld this type of protective
    legislation. For example, see Miller v. Wilson, 
    236 U.S. 373
    ,
    
    35 S. Ct. 342
    , 
    59 L. Ed. 628
    (1915); Muller v. State of Oregon,
    
    208 U.S. 412
    , 28 S.Ct. 324,'52'L.Ed. 551'(1908);
    In 
    Muller, supra
    , the Court said on page 422,
    U . . .Even though all restrictions on political,
    personal and contractual rights were taken away,
    and she stood, so far as statutes are concerned,
    upon an absolutely equal plane with him, it would
    still be true that she is so constituted that
    she will rest upon and look to him for protection;
    that her physical structure and ~a proper discharge
    of her maternal functions -- having in view not
    merely  her own health, but the well-being of the
    race -- justify legislation to protect her from
    the greed as well as the passion of man."
    - 1790   -
    Honorable Tommy V. Smith, Page 3,   (M-363)
    In Mengelkoch v. Industrial Welfare Commission, 284
    Fed.Supp. 950 (Cal. Dist. 1968), also 284 Fed.Supp. 956
    (Cal. Dist. 1968), it was held that where there are prior
    United States Supreme Court decisions upholding state
    statutes such as Article 5172a and no subsequent de-
    cisions have overruled these previous decisions, it is
    improper to test constitutionality of such statutes by a
    three-judge Federal Court. It was reasoned that a Supreme
    Court decision is as binding as statutory law and it was
    held that the court was without jurisdiction to decide
    whether California's statute (Section 1350 of the Cali-
    fornia Labor Code, which prohibits women from working more
    than eight (8) hours a day or more than forty-eight (48)
    hours a week) had been pre-empted by the Civil Rights Act.
    The basis of the holding was that the Plaintiff had failed
    to raise a substantial constitutional issue under the
    Equal Protection Clause of the United States Constitution.
    The Court nonetheless contributed some pertinent judicial
    dicta on page 954, as follows:
    "On the other hand, this may depend upon the
    character of the employment. The classification
    of women as a group needing some particular pro-
    tection of the law may still be reasonable for
    many purposes. It has also been pointed out
    that the abandonment of limitations on working
    hours for women would place women on an equal
    basis with men in the matter of overtime pay,
    but at the same time would also make them sub-
    ject to the obligation to perform as much overtime
    work as required of men. This is a mixed bless-
    ing. It is not a matter of letting women earn
    overtime when they want to, but an obligation to
    work overtime whether they want to or not on
    pain of being discharged. This could result in
    women being squeezed out of certain industrial
    work rather than broadening the employment base
    and opportunity for women in industry. It is
    not so certain as plaintiffs assume that their
    position represents the will of many other women,
    even if similarly situated.
    "Plaintiffs have not distinguished the
    issue presented from the one presented in Muller
    v. 
    Oregon, supra
    . The principle of stare decisis
    -1791-
    Honorable Tommy V. Smith, Page 4, (M-363)
    must ultimately control the decision at the dis-
    trict court level. A Supreme Court decision is
    as binding as statutory law. The district court,
    even sitting as a three-judge tribunal, cannot
    reverse the Supreme Court. When the law has
    developed through intervening decisions to the
    point that it has become clear that the Supreme
    Court has abandoned the reasoning which gave
    rise to an earlier decision and that the law
    has in fact changed and all that is needed is
    recognition, then an inferior court should rec-
    ognize what is obvious and act accordingly. now-
    ever, there has been no line of decisions which
    cast doubt upon the basic holding of Mull&.   There-
    fore, this case does not present a substantial con-
    stitutional issue. Mere speculation as to what
    the Supreme Court might do in the light of the
    changed circumstances will not suffice to take
    this issue out of the insubstantial category."
    The foregoing decision was appealed directly to the
    United States Supreme Court. See 
    21 L. Ed. 2d
    .215; ~89 SCt.
    Here the Court held that it had no jurisdiction to
    artain    a direct appeal from the decision of a sinole
    judge, and when a three-judge court dissolves itself for
    want of jurisdiction, an appeal lies to the appropriate
    Court of Appeals and not to the Supreme Court. On page 216
    the Court said,
    "A three-judge federal court convened pur-
    suant to 28 USC §2281; determined that 'there
    is no idurisdictionfor a three-iudqe court'
    and entered an order dissolving itself.
    F.Supp.            . The single district judge
    in whose-&t-        case was originally filed
    considered further and dismissed the case with-
    out prejudice under the doctrine of abstention,
    stating in his memorandum opinion that '[tlhe
    order dissolving the three-judge court is in-
    corporated in this memorandum by reference.'
    F.Supp. -'    -*      Appellant appeals
    from both judgments. In these circumstances,
    we have no jurisdiction to entertain a direct
    appeal from the decision of the single judge;
    such jurisdiction is possessed only by the
    appropriate United States Court of Appeals.
    -1792-
    Honorable Tommy V. Smith, Page 5, (M-363)
    28 USC 91291. Moreover, we have held that
    when, as here, a three-judge court dissolves
    itself for want of jurisdiction, an appeal lies
    to the appropriate Court of Appeals and not to
    this Court. Wilson v. Port Lavaca, 
    391 U.S. 352
    , 
    20 L. Ed. 2d 636
    , 
    88 S. Ct. 1502
    .
    "Although the appellants have lodged in the
    Court of Appeals for the Ninth Circuit a pro-
    tective appeal from the decision of the single
    judge, it does not appear from the record that
    such an appeal has been filed with respect to
    the three-judge order. Therefore, we vacate
    the order of the three-judge court and remand
    the case to the District Court so that a timely
    appeal may be taken to the Court of Appeals.
    See Wilson v. Port 
    Lavaca, supra
    ; Utility Comm'n
    v. Pennsylvania R. Co., 
    382 U.S. 281
    , 282, 
    15 L. Ed. 2d 324
    , 325, 
    86 S. Ct. 423
    . The appeal
    from the decision of the single judge is dis-
    missed for want of jurisdiction.
    "It'is so ordered."
    The case is now on appeal to the United States Court
    of'Appeal8, Ninth Circuit.
    The only other recent case we have found dealing with
    this problem is Rosenfeld v. Southern Pacific Co,        F.Supp.
    59 L.C.      9172, 69'LRRM 2822'(C.D. Calif. Civil No.
    ~&J-F.     NOVS-22.   1968). Here the Court held that the same
    California statute; Section 1350 of the California Labor Code,
    which prohibits female employees from working more than eight
    (8) hours per day or forty-eight (48) hours per week does not
    constitute a bona fide occupational qualification within the
    meaning of the 1964 Civil Rights Act. The Court also held
    that the California hours and weights legislation discriminates
    against women on account of sex, which violates the provisions
    of the Civil Rights Act of 1964. The court concluded such
    legislation is contrary to the Supremacy Clause (Article VI,
    Clause 2) of the United States Constitution and therefore, is
    void, and of no force   or effect. No cases are cited in this
    opinion, and the decision is presently being appealed to the
    United States Court of Appeals, 9th Circuit. The opinion is
    contrary to all previous United States Supreme Court cases in
    this field which have upheld state legislation passed to pro-
    tect female employees.
    - 1793-
    Honorable Tommy V. Smith, Page 6, (M-363)
    We are not bound by the decision of a United States
    District Court in another jurisdiction, and under the cir-
    cumstances shown we must uphold the constitutionality of
    the Texas statute if under any reasonable construction a
    court may so uphold it.
    It is fair to assume that Congress would not have
    included Title 42 U.S.C., Section 2000h-4, had'it intended
    to pre-empt such state legislation. The federal statutory
    provision states:
    "Construction of provisions not to exclude oper-
    ation of State laws and not to invalidate con-
    sistent State laws
    "Nothing contained in any title of this Act
    shall be construed as indicating an intent on
    the part of Congress to occupy the field in
    which any such title operates to the exclusion
    of State laws on the same subject matter; nor
    shall any provision of this Act be construed
    as invalidating any provision of State law un-
    less such provision is inconsistent with any
    of the purposes of this Act, or any provision
    thereof. Pub.L. 88-352, Title XI, 5 1104,
    July 2, 1964, 78 Stat. 268."
    We also find that the General Counsel for Equal employ-
    ment Opportunity Commission charged.with investigating com-
    plaints filed under the 1964 Civil Rights Act, in an opinion
    released'on April.28; 196J'saidi
    "Effect of Title VII on federal overtime limitation.
    "Title VII does not repeal by implication existing
    federal laws concerning employment of women or autho-
    rise employers to violate such laws. Consequently,
    federal law forbidding employers in the District of
    Columbia to employ women for more than eight hours
    a day is not in conflict with Title VII. However,
    employers should seek all available administrative
    exceptions to laws restricting employment opportu-
    nities for women.
    - 1794-
    Honorable Tommy V. Smith, Page 7, (M-363)
    "In your letter you state that the Minimum Wage
    and Industrial Safety Board of the District of
    Columbia has notified you that you may not work your
    female employees more than eight hours a day, al-
    though no such limitation is applicable to male
    employees. You ask if the Board's action is incon-
    sistent with Title VII of~the Civil Rights Act.
    "The maximum hour limitation you refer to is
    imposed by act of Congress, D.C. Code, 9 36-301.
    The Comniissiondoes not believe that Title VII
    was intended to repeal by implication existing
    federal laws regarding the employment of women,
    and, consequently, we do not believe that Title
    VII authorizes an employer to violate require-
    ments imposed by such laws. However, the Com-
    mission does believe that to comply with Title
    VII an employer should seek whatever administra-
    tive exceptions may be available under such laws."
    See C.C.H. Employment Practices Guide, Paragraph
    17,304.56.
    If Congress did not intend to pre-empt federal laws
    regulating the maximum number of hours women can work in the
    District of Columbia, neither did Congress intend for the
    Civil Rights Act of 1964 to pre-empt similiar state laws
    designed to protect female employees by setting the maxi-
    mum number of hours they may work.
    Furthermore, in January, 1967, The Missouri Attorney
    General's office wrote an opinion on this problem and con-
    cluded that the 1964 Civil Rights Act had not pre-empted
    a Missouri statute very similiar to Article 5172a.  See
    Missouri Attorney General's Opinion No. 45 (1967).
    It is the opinion of this office that Article 5172a
    has not been shown by,any binding authority to be invalid
    or to have been pre-empted by the federal Civil Rights Act
    of 1964. Under these circumstances we must hold that Article
    5172a is-valid and constitutional.
    SUMMARY
    The Federal Civil Rights Act of 1964, which pro-
    hibits discrimination because of sex in employment,
    has not invalidated Article 5172a, V.C.S., which
    - 1795-
    Honorable Tommy V. Smith, Page 8,   (~-363)
    prohibits female employees from working more than
    nine (9) hours per twenty-four (24) hour day or more
    than fifty-four (54) hours per week in certain in-
    dustries.
    Vefltruly   yours,
    C. MARTIN
    Prepared by Ronald Luna
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    George Kelton, Vice-Chairman
    Monroe Clayton
    Bob Lattimore
    Charles Rose
    Harold Kennedy
    W.V. Geppert
    Staff Legal Assistant
    - 1796-