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KOBER v. WESTINGHOUSE ELEC. CORP.

March 29, 1971

Catherine Kober, Plaintiff,
v.
Westinghouse Electric Corporation, Defendant


Weber, D. J.


The opinion of the court was delivered by: WEBER

WEBER, D. J.

This is a suit seeking damages and injunctive relief brought under Title VII of the Civil Rights Act of 1964. The Court finds that it has jurisdiction of this action under 42 U.S.C. § 2000e-5(f) and that defendant is an employer in an industry affecting commerce within the meaning of the Act, 42 U.S.C. § 2000e-5(b). The Complaint alleges that plaintiff was discriminated against with respect to her classification of employment on the basis of sex. Plaintiff, a female employee of defendant Westinghouse Electric Corporation was classified as a Class A Peripheral Machine Operator, Job Class 11, on October 1, 1961, and on February 13, 1967 made application for a job opening as Computer Console Operator, Job Class 12, a job for which she was qualified. A male employee with less seniority than plaintiff was promoted to fill the vacancy on April 1, 1967. Defendant Westinghouse failed to promote plaintiff to this job on the grounds that she could not have performed the job without causing Westinghouse to violate the Pennsylvania Women's Labor Law, 43 P. S. Sec. 103 et seq., which limited the number of hours which women could work. There is no dispute that the employment of plaintiff in the position sought would have violated the terms of that state statute.

 The Federal Act provides in Sec. 703(e) (1), 42 U.S.C. § 2000e-2(c), an exception which permits an employer to limit certain jobs to members of a specific sex because a " bona fide occupational qualification" exists. Defendant argues that the mandatory state legislation creates this exception. Sections 708, 42 U.S.C. § 2000e-7, and 1104, 42 U.S.C. § 2000h-4, of the Act provided that existing state legislation, to the extent that it was not inconsistent with the provisions of the Act, was to be preserved. However, the Courts have interpreted the " bona fide occupational qualification" narrowly and have required the employer to prove that he had reasonable cause for believing that substantially all women would be unable to perform safely and efficiently the duties of the job involved. Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228 (1969). This burden the defendant in this case did not assume to undertake. Reliance on the state statute alone to create the bona fide occupational qualification is unavailing. In Rosenfeld v. Southern Pacific Co., 293 F. Supp. 1219 (C.D. Cal., 1968), the court held that reliance on a state statute did not create the bona fide occupational qualification under the Act.

 Following the adoption of the Act a great deal of administrative indecision followed. The Equal Employment Opportunity Commission wrestled with the problems of conflicts between the Act and so-called "protective" state legislation in the field by the issuance of various somewhat contradictory guidelines and administrative regulations. In November 1965 the EEOC published guidelines which stated that an employer would not be considered in violation of the Act for refusing to employ women in jobs which women are legally prohibited from performing because of hazards reasonably to be apprehended from such employment. The guidelines also contained an "on the other hand" clause as well as an admonition that the employer seek any available administrative exemption from the state regulation in support of any claimed bona fide occupational qualification.

 This policy was not followed in the present case and it was later rescinded by a policy statement issued February 24, 1968 some ten days after the Commission's finding of reasonable cause in this case.

 On March 27, 1967, following defendant's refusal to promote her, plaintiff filed a charge of discrimination under the Act with the EEOC. A finding of reasonable cause was issued on February 15, 1968 on the ground that defendant had not sought an administrative exemption from the state Act. Subsequently, during the conciliation stage of the proceedings the conciliator suggested that defendant apply to the Commonwealth of Pennsylvania for an administrative exception to cover plaintiff's employment in the job which she sought. The state administrator would not grant a clear-cut exception to cover the work requirements of the job, and there is serious doubt of his power to do so under the statute. On October 14, 1968 the EEOC notified defendant that conciliation had failed and of her right to bring suit for relief under the Act within thirty days. Hence this lawsuit.

 The defendant argues that this suggestion of the Commission, and the text of its decision of February 15, 1968 calling the attention of the defendant to the possibility of administrative exceptions to the Pennsylvania Act created by Rule G-19, adopted April 23, 1966, is a recognition by the Commission of an irreconcilable conflict between the Act and the state law. While the suit was pending, in August 1969, the EEOC finally arrived at a position that the conflicting state laws and regulations, "originally promulgated for the purpose of protecting females, have ceased to be relevant to our technology or to the expanding role of the female worker. . . . Accordingly, the Commission has concluded that such laws and regulations conflict with Title VII of the Civil Rights Act of 1964 and will not be considered a defense to an otherwise established unlawful employment practice . . .".

 Thereafter, back in Pennsylvania, the state's Attorney General pondered the problem of the statutory regulation of the working hours of female employees and concluded that it had been repealed by implication, by the adoption of the Amendment to the Pennsylvania Human Relations Act of July 9, 1969. (Opinion of the Attorney General of the Commonwealth of Pennsylvania to the Pennsylvania Secretary of Labor and Industry, November 14, 1969).

 Following the Opinion of the Attorney General of the Commonwealth of Pennsylvania on November 14, 1969, the defendant declared that it would henceforth regard the Pennsylvania Women's Labor Law as repealed, and subsequently on April 1, 1970 the plaintiff was promoted to the first available vacancy in a Code 12 job. Defendant, however, points to the fact that there is no judicial determination of the Pennsylvania statute and requests its construction in this case.

 The question remaining for determination by this Court is the nature of any relief to be accorded plaintiff under this set of facts. Because Westinghouse is now in compliance and indicates its intention to comply and because plaintiff has been accorded the rights which she sought we see no reason for the exercise of injunctive relief.

 The Commission argues that defendant cannot raise the defense from liability provided under Sec. 713(b) of the Act because it was not specifically pleaded. Sec. 713(b) is the "good faith defense" which exempts from liability for monetary damages a defendant employer who,

 The Commission's own Regulations protect it from loose language. Such "written" interpretation of the ...


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