(D.C. Civil Action No. 68-1306) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before VAN DUSEN and ADAMS, Circuit Judges and BRODERICK, District Judge
BRODERICK, District Judge.
The principal issue before the Court on this appeal is whether the district court should have granted back pay and injunctive relief in an action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. in which the plaintiff-appellant claimed that she was discriminated against in her employment because of her sex. The district judge, in an action tried without a jury, based his refusal to award back pay on Westinghouse's reliance on the provisions of the Pennsylvania Women's Labor Law, 43 P.S. § 101 et. seq.
The judgment of the district court that the plaintiff is not entitled to back pay and injunctive relief is affirmed by this Court. As hereinafter discussed, the law is now clear that the district court was correct in its determination that the award of back pay and injunctive relief is discretionary; and we have found that there was no abuse of discretion in this case. However, we do not agree with one of the reasons set forth by the district court judge as a basis for denying back pay to the plaintiff. The district court found that Westinghouse's violation of Title VII of the Civil Rights Act of 1964, section 706(g), was not "intentional" because Westinghouse's refusal to promote appellant was based upon a state statute which prohibited her from working the hours required by the job. A denial of back pay on the ground that such a violation is not intentional is contrary to the recent decisions which have been handed down since the district court made its determination in this matter.*fn1
In support of their position that the district court improperly denied back pay and injunctive relief, plaintiff-appellant and the Equal Employment Opportunity Commission, as amicus curiae, (hereinafter EEOC), have four principal contentions: (1) the district court erred when it found that Westinghouse did not intentionally engage in an unlawful employment practice in violation of section 706(g) of Title VII, 42 U.S.C. § 2000e-5(g) when Westing-house failed to promote plaintiff-appellant in reliance on the hour limitations imposed by section 103(a) of the Pennsylvania Women's Labor Law, 43 P.S. § 103(a); (2) that an award of back pay is required by the decisions of the Fourth and Seventh Circuits in Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), petition for cert. dismissed, 404 U.S. 1006, 1007, 92 S. Ct. 573, 30 L. Ed. 2d 655, and Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); (3) that even if an award of back pay is discretionary, the district court abused its discretion in failing to award back pay, and, finally, (4) that injunctive relief should have been awarded by the lower court.
Plaintiff-appellant, Catherine Kober, was first employed by defendant, Westinghouse Electric Corporation, appellee herein, in 1944 and on January 1, 1957 she was promoted to the computer operations department of Westinghouse's Sharon, Pennsylvania, plant. In 1961 she was again promoted to the position of peripheral machine operator. The normal progression of employment for Miss Kober would have been to a job as a Class B computer console operator and then to a position as a Class A computer console operator. If an employee performs satisfactorily in the peripheral machine operator position, the promotion to a Class B computer console operator is virtually automatic in accordance with seniority and the existence of a vacancy, and then if the work in Class B is satisfactory, the promotion to Class A also is virtually automatic in accordance with seniority and the existence of a vacancy. A usual period before promotion from a peripheral machine operator to a Class B computer console operator is one year and a similar period of time intervenes between the Class B and Class A promotion. Miss Kober had the most seniority since 1957, performed satisfactorily in the peripheral machine operator job and would have been appointed to the Class B computer console operator position by the end of 1962 and to the Class A job by the end of 1963. Westinghouse, however, did not promote her to the Class B computer console operator job and thereafter to Class A because under the scheduling procedures of the computer operations division she would have been required to work in excess of five continuous hours without a thirty minute meal or rest break and to work in excess of six days and forty-eight hours a week, and 10 hours a day in violation of the Pennsylvania Women's Labor Law, 43 P.S. § 103(a) and 107. Miss Kober had made frequent requests for promotion prior to the effective date of Title VII (July 2, 1965) but was refused promotion by Westinghouse because of the provisions of the aforementioned Pennsylvania statute. Following the effective date of Title VII, a Class B computer console position became vacant but she was not promoted to it, again based on Westinghouse's reliance on the Pennsylvania statute.
On December 2, 1965 the EEOC promulgated regulations concerning the relationship between Title VII and state statutes protecting women which were preceded by the following policy statement:
Probably the most difficult area considered in these guidelines is the relation of Title VII to state legislation designed originally to protect women workers. The Commission cannot assume that Congress intended to strike down such legislation. 30 Fed. Reg. 14927 (1965).
The regulations provided:
(c) The Commission does not believe that Congress intended to disturb such laws and regulations which are intended to, and have the effect of, protecting women against exploitation and hazard. Accordingly, the Commission will consider limitations or prohibitions imposed by such state laws or regulations as a basis for application of the bona fide occupational qualification exception. However, in cases where the clear effect of a law in current circumstances is not to protect women but to subject them to discrimination, the law will not be considered a justification for discrimination. So, for example, restrictions on lifting weights will not be deemed in conflict with Title VII except where the limit is set at an unreasonably low level which could not endanger women.
(1) An employer, accordingly, will not be considered to be engaged in an unlawful practice when he refuses to employ a woman in a job in which women are legally prohibited from being employed or which involve duties which women may not legally be permitted to perform because of hazards reasonably to be apprehended from such employment.
(2) On the other hand, an employer will be deemed to have engaged in an unfair employment practice if he refuses to employ or promote a woman in order to avoid providing a benefit for her required by law - such as minimum wage or premium overtime pay.
(3) Where state laws or regulations provide for administrative exceptions, the Commission will expect an employer asserting a bona fide occupational qualification pursuant to this paragraph to have attempted in good faith, to obtain an exception from the agency administering the state law or regulation. 29 C.F.R. § 1604.1(c) (1966).
The following statement of the EEOC of February 23, 1968 appropriately describes the subsequent course of EEOC policy:
[On] August 19, 1966, the Commission adopted a policy with respect to the processing of cases involving State protective legislation. The Commission stated, in substance, that it would not make determinations on the merits in cases which present a conflict between the Act and State protective legislation where administrative exceptions under State law were unavailable; that in such cases the Commission would advise the charging parties of their right to bring suit within 30 days under section 706(e) of the Act to secure a judicial determination as to the validity of the State law or ...