Weeks v. Southern Bell Telephone & Telegraph Co.

Facts

The statutory framework. Title VII makes it “an unlawful employment practice for an employer … 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 … sex.” (42 U.S.C. § 2000e-2(a); quoted at Weeks, supra, 408 F.2d at p. 232.) Against that prohibition the statute carves a narrow exception: it is not unlawful for an employer “to hire and employ employees … on the basis of his … sex … in those certain instances where … sex … is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” (42 U.S.C. § 2000e-2(e)(1); quoted at id. at p. 232.)

The applicant and the bid. Mrs. Lorena W. Weeks had been “an employee of the Company for 19 years” when she “submitted her bid for the job of switchman on March 17, 1966.” (Id. at pp. 229–230.) On April 18, 1966, Southern Bell “returned her bid with a letter advising her that it had decided … not to assign women to the switchman’s job.” (Id. at p. 230.)

The undisputed reason: sex. The court found “there is no dispute that Mrs. Weeks was denied the switchman’s job because she was a woman, not because she lacked any qualifications as an individual.” (Id. at p. 231.) “The job was awarded to the only other bidder for the job, a man who had less seniority than Mrs. Weeks,” even though “[u]nder the terms of the contract between Mrs. Weeks’ Union and Southern Bell, the senior bidder is to be awarded the job if other qualifications are met.” (Ibid.) Southern Bell “in effect, admits a prima facie violation of … Section 703(a).” (Ibid.)

The job and the weight assumption. The switchman post involved “the maintenance and operation of dial central office equipment,” including “locating and correcting … faults,” “making adjustments, additions, repairs, and replacements,” and maintaining “air conditioning equipment.” (Id. at p. 232.) Southern Bell rested its defense on a state regulation, Rule 59, promulgated by the Georgia Commissioner of Labor, which capped lifting “[f]or women and minors, [at] not over 30 pounds.” (Id. at pp. 232–233.) Mrs. Weeks did “not dispute on appeal that the position of switchman occasionally requires lifting of weights in excess of 30 pounds,” but “consistently contended that the Georgia limit is unreasonably low” and that Rule 59 lacked “the intent or effect of protecting women from hazard.” (Id. at p. 233.)

What the record actually showed. On close examination, the court found “only a 31-pound item called a ‘relay timing test set’ was used ‘regularly and routinely’ by a switchman,” and that “the normally accepted practice is to place the test set on the floor or on a rolling step-ladder and that very little lifting of it was required.” (Id. at p. 234.) The asserted emergency duty “consist[ed] primarily in the handling of a 34-pound extinguisher in the event of fire.” (Id. at p. 235.) Mrs. Weeks “produced testimony to the effect that she was capable of performing the job, that a woman in New York had been hired as a switchman and that seven others were performing the job of frameman, the duties of which were essentially indistinguishable from those of a switchman.” (Id. at p. 234.)

Procedural history

Mrs. Weeks filed a written but unsworn charge with the EEOC on June 2, 1966, and “[a] representative of the Commission secured a sworn charge … on July 30, 1966.” (Id. at p. 230.) After investigation, “the Commission decided that there was reasonable cause to believe that the Company had violated the Act”; conciliation failed, and Mrs. Weeks was notified she had 30 days to sue. (Ibid.) The District Court relieved her of costs and appointed counsel, who “filed suit on her behalf on May 18, 1967.” (Ibid.)

Southern Bell moved to dismiss or for summary judgment, arguing the District Court “lacked jurisdiction” because the sworn charge was not filed within 90 days of the April 18, 1966 practice. (Ibid.) The District Court overruled the motion — the basis of Southern Bell’s cross-appeal — and, “[i]n ruling for Southern Bell” on the merits, “relied primarily on the effect of Rule 59,” while making “additional findings” that the job was “strenuous” and that a switchman must “routinely and regularly lift items of equipment weighing in excess of thirty (30) pounds.” (Id. at pp. 230, 233–234.) On Mrs. Weeks’s appeal, the Fifth Circuit affirmed on the procedural point and reversed and remanded on the merits “for determination of appropriate relief.” (Id. at p. 236.) Judge Johnson, District Judge sitting by designation, delivered the opinion for the panel; Judges Wisdom and Ainsworth joined. There was no separate concurrence or dissent.

Issue

The appeal presented “important unsettled questions concerning the proper interpretation of Title VII.” (Id. at p. 229.) Two issues controlled. First, a threshold procedural question: whether the District Court had jurisdiction where the sworn charge followed the unlawful practice by more than 90 days, the unsworn written charge having been timely. Second, and central, the substantive question the court framed as “the question whether Southern Bell, as a private employer, has satisfied its burden of proving that the particular requirements of the job of switchman justify excluding women from consideration.” (Id. at p. 233.) Embedded within that were two sub-questions the court expressly identified: who bears the burden of proving the BFOQ exception, and “the extent of the showing required to satisfy that burden.” (Id. at pp. 232–233.)

Holding

Reasoning

The verification defect was curable. The court first disposed of the jurisdictional cross-appeal. Sustaining a Commission regulation permitting amendment of a charge, it quoted 29 C.F.R. 1601.11(b): “A charge may be amended to cure technical defects or omissions, including failure to swear to the charge … and such amendments relate back to the original filing date.” (Id. at p. 230.) Agreeing with the Seventh Circuit’s decision in Choate v. Caterpillar Tractor Co., the court adopted Judge Swygert’s reasoning that the “‘under oath’ requirement relates to the administrative procedures” and is “directory and technical rather than mandatory and substantive.” (Id. at pp. 230–231.) Drawing on its own decision in Jenkins v. United Gas Corp., the court reasoned that for “a lay-initiated proceeding it would be out of keeping with the Act to import common-law pleading niceties to this ‘charge.’” (Id. at p. 231.) It added that Southern Bell “was in no way bothered or prejudiced by the unsworn charge,” since under Commission procedures “unsworn charges are not served upon respondents and … the investigation does not commence until a sworn charge is served.” (Ibid.)

The employer bears the burden, because the BFOQ is a narrow exception. Turning to the merits, the court held “it is clear that the burden of proof must be on Southern Bell to demonstrate that this position fits within the ‘bona fide occupational qualification’ exception.” (Id. at p. 232.) Three sources converged. The legislative history “indicates that this exception was intended to be narrowly construed,” citing the Clark–Case interpretative memorandum describing § 703(e)(1) as a “limited exception.” (Ibid. & fn. 3.) The EEOC had adopted the same construction. (Ibid.) And the court invoked the settled canon that “when dealing with a humanitarian remedial statute which serves an important public purpose, it has been the practice to cast the burden of proving an exception to the general policy of the statute upon the person claiming it,” citing Phillips Inc. v. Walling. (Ibid.)

The state weight law dropped out of the case. Southern Bell’s principal theory below was that “a bona fide occupational qualification was created whenever reasonable state protective legislation prevented women from occupying certain positions.” (Id. at p. 232.) The court noted that the Commission’s own guideline (§ 1604.1(3)) would honor such state restrictions “except where the limit is set at an unreasonably low level which could not endanger women,” and observed that a district court had recently struck a 25-pound California limit as both unreasonably low and “contrary to Title VII,” in Rosenfeld v. Southern Pacific Co. (Id. at pp. 232–233.) The court declined to resolve Rule 59’s validity, however, “because effective August 27, 1968, Georgia repealed Rule 59,” replacing it with a flexible standard limiting loads “so as to avoid strains or undue fatigue,” a change “in conformity with … the Task Force on Labor Standards of the Citizens’ Advisory Council on the Status of Women.” (Id. at p. 233.) Because “the new, flexible rule does not in terms necessarily prevent all women from performing the duties of switchman, the issue of protective state legislation disappears from the case.” (Ibid.)

“Strenuous” is not proof. Stripped of the state-law defense, Southern Bell leaned on the District Court’s finding that the job was “strenuous.” The court found “[t]hat finding is extremely vague.” (Id. at p. 234.) Critically, “Southern Bell introduced no evidence that the duties of a switchman were so strenuous that all, or substantially all, women would be unable to perform them,” and the District Court made no finding on “this more concrete and meaningful statement of the issue.” (Ibid.) The Commission’s investigation had rejected the contention “that the switchman job at this location requires weight lifting or strenuous exertion which could not be performed by females.” (Ibid.) Given that only a 31-pound test set was used regularly, and even then “very little lifting … was required,” the court concluded that “[l]abeling a job ‘strenuous’ simply does not meet the burden of proving that the job is within the bona fide occupational qualification exception.” (Ibid.)

A privately imposed weight limit fares no better — the broad reading would swallow the rule. The court next addressed Southern Bell’s fallback that “a reasonable privately-imposed weight limitation fits within the exception,” a theory drawn from Bowe v. Colgate-Palmolive Co., where a district court had said that “[g]enerally recognized physical capabilities and physical limitations of the sexes may be made the basis for occupational qualification in generic terms.” (Id. at pp. 234–235.) The court rejected that broad construction as “inconsistent with the purpose of the Act,” reasoning that if “[c]onstrued … broadly, the exception will swallow the rule.” (Id. at p. 235.) It noted the Commission had successfully urged in Rosenfeld that privately-imposed weight limits do not fall within the exception, and that the Commission’s guidelines disapprove refusals to hire “based on assumptions of the comparative employment characteristics of women in general” or “stereotyped characterizations of the sexes,” requiring that “individuals be considered on the basis of individual capacities.” (Ibid.) Those guidelines, the court held, are “entitled to considerable weight,” quoting Udall v. Tallman for the deference owed “the interpretation given the statute by the officers or agency charged with its administration.” (Ibid.)

The standard announced. From these premises the court derived its enduring rule: “in order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.” (Ibid.)

Stereotype is the antithesis of proof. Applying the standard, the court found Southern Bell “clearly … not met that burden,” because “[t]hey introduced no evidence concerning the lifting abilities of women.” (Ibid.) Instead, the employer “would have us ‘assume,’ on the basis of a ‘stereotyped characterization’ that few or no women can safely lift 30 pounds, while all men are treated as if they can.” (Id. at pp. 235–236.) The court probed the underlying assumption: even granting “arguendo, that men are stronger on the average than women, it is not clear that any conclusions about relative lifting ability would follow,” because “technique is as important as strength in determining lifting ability,” and “[t]echnique is hardly a function of sex.” (Id. at p. 236.) The practical effect of such “class stereotypes” is to deny “desirable positions to a great many women perfectly capable of performing the duties involved.” (Ibid.)

Romantic paternalism is no defense. The court dispatched Southern Bell’s “remaining contentions,” which it found were not “advanced with great seriousness.” (Ibid.) The fire-extinguisher “emergency” was a “speculative emergency … [that] could be used as a smoke screen by any employer bent on discriminating against women.” (Ibid.) As for late-hour call-outs, “the record also reveals that other women employees are subject to call after midnight in emergencies.” (Ibid.) In its most cited passage, the court declared that “Title VII rejects just this type of romantic paternalism as unduly Victorian and instead vests individual women with the power to decide whether or not to take on unromantic tasks.” (Ibid.) Men “have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unromantic tasks is worth the candle,” and “[t]he promise of Title VII is that women are now to be on equal footing.” (Ibid.)

The narrow caveat. The court was careful not to foreclose every general rule. In a footnote distinguishing Bowe, it acknowledged that “where an employer sustains its burden in demonstrating that it is impossible or highly impractical to deal with women on an individualized basis, it may apply a reasonable general rule,” but stressed that “[n]o such showing was made here; it seems plain that it could not be.” (Id. at pp. 235–236, fn. 5.)

Significance

Weeks is the case that gave the sex-BFOQ exception its analytic spine. Decided in March 1969, only a few years after Title VII took effect, it confronted the open question of what an employer must show to invoke § 703(e)(1) for sex. The court’s answer — that the employer must prove “a factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved” (408 F.2d at p. 235) — became the template for the entire doctrinal line that followed. It rejected three employer strategies at once: reliance on a facially protective state statute, reliance on a vague “strenuousness” label, and reliance on a privately imposed weight limit grounded in generalized assumptions about the sexes.

The decision’s influence is structural. By placing the burden on the employer, demanding evidence rather than assumption, and insisting that workers “be considered on the basis of individual capacities and not on the basis of any characteristics generally attributed to the group” (id. at p. 235), Weeks supplied the framework the Supreme Court would later refine when it confronted the sex-BFOQ in its own cases. The “all or substantially all” formulation, the “romantic paternalism” critique, and the individual-capacity principle all trace to this opinion. The court’s warning that a broad reading of the exception would let “the exception … swallow the rule” (ibid.) captured the interpretive stakes precisely.

For California practitioners, the lineage matters. California’s Fair Employment and Housing Act recognizes a comparably narrow BFOQ defense, and the analytic moves Weeks pioneered — burden on the employer, evidence over stereotype, individualized assessment, suspicion of “protective” exclusions — animate FEHA sex-discrimination litigation to this day. The opinion is also an early, emphatic application of agency deference in the Title VII setting, treating the EEOC guidelines as “entitled to considerable weight.” (Ibid.) Its limits are honest ones: the court left a genuine “impossible or highly impractical to deal with women on an individualized basis” safe harbor (id. at pp. 235–236, fn. 5), and it deliberately avoided constitutional ground by letting the repealed state rule fall out of the case.

Key quotes

“[I]n order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.” (Weeks, supra, 408 F.2d at p. 235.)

“Title VII rejects just this type of romantic paternalism as unduly Victorian and instead vests individual women with the power to decide whether or not to take on unromantic tasks. … The promise of Title VII is that women are now to be on equal footing.” (Id. at p. 236.)

“What does seem clear is that using these class stereotypes denies desirable positions to a great many women perfectly capable of performing the duties involved.” (Ibid.)

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Practice pointer

Open questions

The opinion left several matters expressly unresolved. The court declined to rule on the validity of the state weight law, holding it “need not decide the reasonableness or the constitutionality of Rule 59” because Georgia had repealed it, so that “the issue of protective state legislation disappears from the case.” (Weeks, supra, 408 F.2d at p. 233.) That left open — for another case with a live statute — both the supremacy-clause conflict the Commission had pressed in Rosenfeld and the equal-protection challenge Mrs. Weeks raised. (Ibid.) The court also reserved the boundary of the BFOQ itself: it acknowledged that an employer might lawfully “apply a reasonable general rule” upon proof that individualized assessment is “impossible or highly impractical,” but, finding “[n]o such showing was made here,” it did not define when that safe harbor opens. (Id. at pp. 235–236, fn. 5.) Finally, the court resolved liability only and remanded the entire question of remedy — “appropriate relief under the provisions of 42 U.S.C. Sec. 2000e-5(g)” — to the District Court, leaving the contours of Mrs. Weeks’s award of the position, damages, and any seniority adjustment to be determined on remand. (Id. at p. 236.)