This is the first installment of a two-part guest post by Theanne Liu Svedman, a former fellow with the Law Library of Congress.
From January to May of this year I worked at the Law Library’s Public Services Division as the George A. Strait Fellow, while I am completing my MLIS in law librarianship at the University of Washington iSchool. During my fellowship, I worked on answering Ask a Librarian questions from public and congressional patrons, shadowed librarians at the reference desk, reviewed and updated Employment & Labor Law: A Beginner’s Guide, and assessed one of the Law Library’s state collections.
Before transitioning to law librarianship, I was an attorney who represented workers in class action cases, primarily challenging wage-and-hour violations and employment discrimination. I also had the privilege of caring for my now toddler daughter full-time before beginning library school. When I was given the opportunity to research a landmark Supreme Court case using the Law Library’s collections and Manuscript Division collections, I was eager to look into Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) because of my experience with both employment law and motherhood, both of which this case addresses.
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971):
Petitioner Ida Phillips, a mother of seven children, sued Martin Marietta Corp. (Martin Marietta) in the United States District Court for the Middle District of Florida under Title VII of the Civil Rights Act of 1964 for sex discrimination after the company told her they would not accept job applications for an assembly trainee position from women with pre-school age children. The business did, however, employ men with pre-school-age children. The district court granted summary judgment for Martin Marietta, and the United States Court of Appeals for the Fifth Circuit affirmed that decision and then denied a rehearing en banc. The Fifth Circuit’s rationale was that Martin Marietta showed that 75% of its workforce in the assembly trainee position were women, and that discrimination against a person on the basis of their sex plus another characteristic, such as being a mother with pre-school aged children, did not violate Title VII. Ida Phillips successfully petitioned the Supreme Court to grant a writ of certiorari to hear her case, making her case the first Title VII gender discrimination case to reach the Court.
On January 25, 1971, the Court issued a short per curiam opinion stating:
Section 703 (a) of the Civil Rights Act of 1964 requires, that persons of like qualifications be given employment opportunities irrespective of their sex. The Court of Appeals therefore erred in reading this section as permitting one hiring policy for women and another for men-each having pre-school-age children. The existence of such conflicting family obligations, if demonstrably more relevant to job performance for a woman than for a man, could arguably be a basis for distinction under § 703(e) of the Act. But that is a matter of evidence tending to show that the condition in question “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” The record before us, however, is not adequate for resolution of these important issues. . . . Summary judgment was therefore improper and we remand for fuller development of the record and for further consideration. Vacated and remanded.
Significantly, the Court disposed of the developing line of decisions that allowed employers to discriminate on the basis of sex plus other factors, which many argued would have made Title VII practically ineffective. Fifth Circuit Court of Appeals Chief Judge John R. Brown had dissented from the Fifth Circuit’s denial of the rehearing of the case, stating that “if ‘sex plus’ stands, the [Civil Rights] Act is dead.” 416 F.2d 1257, 1260 (5th Cir. 1969).
A Bona Fide Occupational Qualification Exception for Motherhood?
The Supreme Court also mentioned the exception listed in section 703(e) of the act, which provides that the law is not triggered when “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise” exists. The Supreme Court allowed the lower court on remand to consider evidence about whether women’s family obligations were qualifications “reasonably necessary to the normal operation of that particular business or enterprise.”
Justice Marshall took issue with the Court’s discussion about the bona fide occupational qualification and issued a separate concurrence, excerpted below:
While I agree that this case must be remanded for a full development of the facts, I cannot agree with the Court’s indication that a ‘bona fide occupational qualification reasonably necessary to the normal operation of’ Martin Marietta’s business could be established by a showing that some women, even the vast majority, with pre-school-age children have family responsibilities that interfere with job performance and that men do not usually have such responsibilities. Certainly, an employer can require that all of his employees, both men and women, meet minimum performance standards, and he can try to insure compliance by requiring parents, both mothers and fathers, to provide for the care of their children so that job performance is not interfered with. But the Court suggests that it would not require such uniform standards. I fear that in this case, where the issue is not squarely before us, the Court has fallen into the trap of assuming that the Act permits ancient canards about the proper role of women to be a basis for dis-crimination. Congress, however, sought just the opposite result.
Justice Marshall then discussed that the inclusion of sex discrimination in the Civil Rights Act was intended to prevent employers from refusing to hire workers based on sex stereotypes, and that the exception for a “‘bona fide occupational qualification’ was not intended to swallow the rule.” Justice Marshall cited regulations issued by the Equal Employment Opportunity Commission (EEOC), which enforces Title VII. The EEOC interpreted the bona fide occupational qualification “to be applicable only to job situations that requires specific physical characteristics necessarily possessed by only one sex. Thus, the exception would apply where necessary ‘for the purpose of authenticity or genuineness’ in the employment of actors or actresses, fashion models, and the like.” Phillips, 400 U.S. at 545-47 (Marshall, J., concurring).
Justice Marshall’s argument in his concurrence has largely prevailed, as there is no recognized bona fide occupational qualification exception to deny mothers employment based on those “ancient canards about the proper role of women.”
In part 2 of this blog post, I will be exploring the Manuscript Division’s collections to see what records in the Supreme Court Justices’ papers might say about the Court’s decision-making process in this case.
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