Plaintiff, a retired male railroad employee, claims that a statute passed in 1945 is now in violation of the Fifth Amendment and is also in contravention of Title VII of the Civil Rights Act of 1964 because it permitted women with 30 years of railroad service to retire at age 60 with full benefits, while men with similar service would have their annuity partially reduced if they retired between the ages of 60 and 64. This precise issue was previously decided by me on April 22, 1975, when I granted defendant's Motion for Summary Judgment and held that the statute in issue, § 228b(a)(3) of the Railroad Retirement Act of 1937, as amended (hereafter "Act"), did not illegally discriminate against male railroad employees. See Memorandum Opinion, Lewis v. Cohen, Civil Action No. 73-2876 (E.D. Pa., filed April 21, 1975).
I would have preferred to not add to the litany of words
answering those perceptions of some males who think that in some way they are now victims of monstrous injustice or unjustified "statutory favoritism"
whenever women today gain even some miniscule advantage over their male counterparts. But, due to an unfortunate administrative snafu, more now has to be written.
When my opinion of April 21, 1975 was filed, I was not aware of the fact that plaintiff's counsel had filed
with the Clerk's Office the deposition of Dr. Herman P. Miller. Dr. Miller, a distinguished statistician, had submitted data suggesting that there was no rational basis in fact for the legislation passed in 1945 which gave women an advantage in earlier retirement benefits.
No copy of Dr. Miller's deposition was forwarded to my office by either counsel for the plaintiff or the Clerk's Office. Thus, appropriately, plaintiff's counsel has filed a petition asking that I reconsider my opinion in view of Dr. Miller's deposition.
Dr. Miller's deposition, and plaintiff's extensive legal argument now based thereon, concern basic perceptions of the status of women in 1945 when the legislation was passed. Were women generally, or at least in the railroad industry, truly on parity with men in terms of employment opportunities? Did they really have equal opportunity for advancement? Was 30 years labor in the railroad industry "harder on women than on men"?
On the basis of the data then available, could Congress rationally find that there was a disparity in the treatment of women and/or discrimination against women in the railroad industry? Upon making such finding of disparity or discrimination or greater wear, could Congress deal with such disparities by passage of an act giving women slightly advantageous retirement benefits as are reflected in the amended 1937 Act?
Having pondered these additional questions raised by plaintiff's Petition for Reconsideration, I again conclude that the statute in question is clearly constitutional and hence there is no need for the appointment of a three-judge court to determine its validity.
II. LEGISLATIVE HISTORY
Section 228b of the Railroad Retirement Act of 1937, as amended, provided that "women who will have attained the age of sixty and will have completed thirty years of service" shall be eligible for full retirement benefits, but that each man "who will have attained the age of sixty and will have completed thirty years of service" will have his annuity "reduced by 1/180 for each calendar month that he . . . is under age sixty-five when the annuity begins to accrue."
In 1973, the Commission on Railroad Retirement, established to study the problems and financial viability of the Railroad Retirement System, expressed the purposes of the Railroad Retirement Act:
The railroad retirement system was created in 1935 as a special benefit system for railroad workers. It is federally -- administered but has always been self-supporting from contributions by the workers and the railroads. . . . The system has lacked a clear set of objectives, delineating between the socially-weighted benefits provided under a social insurance scheme and those appropriated to a private industry supplementary pension plan. 1973 U.S. Cong. & Adm. News 1649 (emphasis added).
The Railroad Retirement Act of 1937 provided for a system of annuity and not pension benefits. Railroad Retirement Board v. Bates, 75 U.S. App. D.C. 251, 126 F.2d 642, 645 (D.C. Cir. 1942). The Act was weighted in favor of complete retirement upon receipt of annuity payments. United States v. Bush, 255 F.2d 791, 794 (3d Cir. 1958).
The annuities under the Act are paid from a fund to which "the employees and the railroads have contributed equally on all salaries of employees earned after December 31, 1936." The fund is set up on an actuarial basis. Scott v. Railroad Retirement Board, 227 F.2d 684, 686 (7th Cir. 1955).
There is an effort to operate the Railroad Retirement benefit system in tandem with the Social Security Act. "Historically, whenever social security benefits have been increased, railroad retirement benefits have also been increased comparably." 1973 U.S. Cong. & Adm. News 1617. Consequently, annuity payments provided for under the Railroad Retirement Act are not the equivalent of payments made pursuant to a private pension plan.
The most important part of the legislative history of § 228b is the January 31, 1945 testimony of the then Chairman of the Railroad Retirement Board, Mr. Murray W. Latimer, before the House Committee on Interstate and Foreign Commerce. In the course of his testimony, Mr. Latimer noted that the purpose of "social insurance" such as that established in part by the Act was "that of providing security" through the "promise of fixed incomes." Hearings on H.R.1362 Before the Committee on Interstate and Foreign Commerce, 79th Cong., 1st Sess., pt.1, at 134 (1945) (hereafter "Hearings"). Latimer rejected the concept of using "the retirement system as a regulator of the labor market" either through the provision of compulsory retirement at 65 or through allowance of retirement at an early age with full annuity benefits. Hearings, supra, at 135-136. Latimer's conclusion was founded, to some degree, on a consideration of "the experience in other retirement systems where annuities were available at an age below that at which workers normally cease to seek employment." That experience indicated that laborers retiring at an arbitrarily pegged early age not only remained in the labor market, but also were in a "preferred position." These individuals could "substantially increase their incomes" by "offering to take work at wages slightly under the prevailing rate" because of the security of an "assured income." Hearings, supra, at 135-36. After rejecting the notions identified above, Latimer discussed the suggested amendment of the Act's annuity provisions which allowed for the early retirement of women with full annuity benefits. The chairman maintained, as he had earlier in his testimony, that "special provision for women seems to me appropriate." Hearings, supra, at 136. The unavoidable inference from Latimer's testimony is that Congress was providing for the earlier retirement of women with full benefits at an age at which female workers "normally cease to seek employment," and not before.
In addition, Mr. Latimer commented on the low representation of women in the railroad industry:
Women have, at least until recent years, been represented only to a minor degree in the railroad industry. Even among qualified workers in the benefit years 1943-44, women constituted slightly less than 4 percent. Hearings, supra, at 116.
The most critical portion of Mr. Latimer's testimony was his comment, as follows, on the suggested amendment to § 228b:
Special provision for women is appropriate. There is much evidence that, despite the greater longevity of women as compared with men, their efficiency on jobs outside the home tends to become impaired at an earlier age than in the case of men. In its report for 1943, the Social Security Board stated that there was 'little doubt that the proportion of women unable to engage in regular employment at age 60 is larger than the proportion of men at age 65.' Most pension systems of private employers, having any substantial number of women workers, make provision for retiring women at an earlier age than male employees. The Social Security Board has recommended that income benefits for women under the old-age and survivors' insurance system begin at 60. The provision in H.R. 1362 does not go as far as the recommendation of the Social Security Board; I think it an appropriately cautious step in the right direction. Because it fits, as far as it goes, the peculiar needs of women workers, it can hardly be said to involve any element of discrimination in favor of women over men. Hearings, supra, at 50.