against Negroes is, on the present record, irresistible." 304 F. Supp. p. 607.
In all of these cases the court found that injunctive relief was required under the circumstances to end the discriminatory practices. There is no such necessity here, the defendant having now agreed to full compliance.
In none of those cases was there any element of reliance by an employer upon the terms of a state statute which was in conflict with the Act. They all involve patterns of segregation established by union contracts or union organizations, which resulted in segregated job classifications. In none of those cases was the employer's conduct controlled in any way by a conflicting state statute.
We have found only two cases dealing with the issue of appropriate relief where an employer's actions were carried out under the proscriptions of a state law where the District Court subsequently found the state law provisions to be in conflict with the Act. In Rosenfeld v. Southern Pacific Co., supra, where the employer relied upon state protective legislation limiting the hours of work of women and the weight lifting assignments to be given women employees, the court found the state statute to be contrary to the Act and not creating a bona fide occupational qualification, and declared defendant's refusal to promote to be discriminatory under the Act. It gave injunctive relief but did not make a specific finding of "intentional" violation of the Act. No monetary damages were awarded except costs and reasonable counsel fees. The only other case in this category is Richards v. Griffith Rubber Mills, 300 F. Supp. 338, where again a woman was denied promotion because a state regulatory commission had imposed regulations placing weight lifting restrictions on women incompatible with the job which the applicant sought and also because of union contract provisions giving certain rest breaks to women which were incompatible with the requirements of the position sought. The Court there held that the defendant had shown no proof of a bona fide occupational qualification, that the state regulatory commission's order was discriminatory and contrary to the Act, but that the defendant had acted in good faith in relying upon the state regulatory commission's regulation and, therefore, did not "intentionally", (i.e. knowingly or wilfully) engage in unfair employment practice under the Act. The court, therefore, refused to issue an injunction because the complainant had been promoted to the position which she sought. Monetary damages were not mentioned, but the court awarded costs and counsel fees under the provisions of Sec. 706(k) of the Act, which allows the court to award reasonable attorney's fees as part of the costs to the "prevailing party". This section differs from the provisions of Sec. 706(g), 42 U.S.C. § 2000e-5(g), which allows injunctive relief and monetary damages for an "intentional" violation of the Act. Richards resulted in declaratory relief in the nature of a finding of the invalidity of the state regulation under the Act, and the award of counsel fees under the above-cited section.
Plaintiff claims and has produced evidence of the wage loss that she suffered by reason of her exclusion from the Code 12 job classification from February 13, 1967 to April 1970. She claims the difference between what she was actually paid in the lower classification and what she could have earned in the higher job classification from which she was excluded during this period by reason of the actions of the defendant.
Because we find no necessity for injunctive relief under the present circumstances, and because we find no "intentional" violation of the Act by defendant at any time until the barrier of conflicting state law was removed, and because we find that defendant promoted plaintiff to the higher classification on the next vacancy occurring after the barrier of the state statute was removed, we find no basis for the award of damages for wage loss claimed by plaintiff.
We have examined the cases where findings of intentional discrimination have been made and find generally that such claims for wage loss are not granted, except in cases of discharge, where reinstatement and back pay have been ordered as relief. See Sprogis v. United Air Lines, Inc., 308 F. Supp. 959 (discharge of a female air-line hostess for marriage) and Jackson v. Veri Fresh Poultry Co., 304 F. Supp. 1276 (discharge of a Seventh Day Adventist for refusal to work on Saturday).
In Cheatwood v. South Central Bell Tel. & Tel. Co., 303 F. Supp. 754, a case alleging sex discrimination in promotions, the court considered whether the claim for pay loss differential created a jury issue, and determined that it was a matter for the court. The defendant claimed a bona fide occupational qualification exception for males which the court did not find. The court issued an injunction and awarded costs and counsel fees.
Under the statute the award of damage for lost past differential is a discretionary matter, even on a finding of "intentional" violation. Under the circumstances of this case we do not find such relief appropriate in view of the defendant's dilemma under threat of state prosecution, and its compliance when the threat of state prosecution was eliminated.
We find that an award of counsel fees, however, is appropriate to plaintiff as the prevailing party under Section 706, 42 U.S.C. § 2000e-5, of the Act, as well as the award of costs.
We conclude, as a matter of law, that the provisions of the Pennsylvania Women's Labor Law of 1913, as amended, insofar as it regulates hours of employment of females, conflicts with the provisions of Title VII of the Civil Rights Act of 1964, and that under the Supremacy Clause of Article VI, cl. 2, of the United States Constitution, in the event of a conflict between State and Federal legislation, the Federal legislation will prevail.
Therefore, this Court now specifically finds and concludes that the failure to hire or promote females, to positions for which they are otherwise qualified, on the basis of sex is a violation of Title VII of the Civil Rights Act of 1964, despite any provision of the Pennsylvania law regulating the hours of work of women.
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