March 18, 1969 

d"""'""' 

Honorable Tommy V. Smith 

Commissioner 

Bureau of Labor Statistics 

State of Texas 

Capitol Station 

Austin, Texas 78711 

Dear Mr. Smith: 

Opinion NO. ~-363 

Re: Whether under federal law 

Article 5172a, V.C.S., conflicts with Title VII, Civil 

Rights Act of 1964, and is 

invalid. 

You have requested an opinion of this office as to 

whether the following statute, Article 5172a, Vernon's Civil 

Statutes, is invalid by reason of Title VII of the Civil 

Rights Act of 1964. 

Vernon's Civil Statutes, Article 5172a 

SUMMARY OF ARTICLE 5172a 

Sections 1 through 3 limit the number of hours 

that a female can work to 9 hours in a twenty-four 

(2~4) hour period, or one day period; or 54 hours 

in a one week period, for certain types of industries and businesses within the State. Sections 

2 and 3 provide for overtime pay. 

Section 4 makes it mandatory for the employers 

mentioned in Sections 1 thru 3 to provide seats for 

female employees when not engaged in the active 

duties of their employment. 

Section 5 sets out the types of female employment that are excepted from Sections 1 through 4. 

Part 6 of Section 5 establishes the number of hours 

that female employees in banks can work in one day 

or one week. 

Sections 5a and 6 set out exceptions and exemptions 

to Sections 1 through 5 in case of extraordinary 

emergencies, war, or national emergencies. Sections 

7 through 13 deal with hearings under Sections 5a 

and 6, failure to comply with the Act, and punishment for violations of the Act. 

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Honorable Tommy V. Smith, Page 2, (M-363) 

The pertinent parts of the 1964 Civil Rights Act which 

prohibit discrimination because of sex are found in 42 U.S.C.A., 

Section 2000e-2, and read as follows: 

n (a) It shall be an unlawful employment practice for 

an employer ---- 

(1) 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 race, color, religion, sex or national 

origin; or 

(2) to limit, segregate, or classify his employees 

in any way which would deprive or tend to deprive any 

individual of employment opportunities or otherwise 

adversely affect his status as an employee, because 

of such individual's race, color, religion, sex, or 

national origin." 

Before any opinion can be given, it is first necessary 

to look to the history and purpose of Article 5172a. In the 

early part of the ZOth~Century many states including Texas 

passed,legislation to protect female employees. Because prior 

to the passage of these "female protection laws" some employers had exploited both female and ~child employees with 

little regard to the health or well being of such employees. 

There are many cases that have upheld this type of protective 

legislation. For example, see Miller v. Wilson, 236 U.S. 373, 

35 S.Ct. 342, 59 L.Ed. 628 (1915); Muller v. State of Oregon, 

208 U.S. 412, 28 S.Ct. 324,'52'L.Ed. 551'(1908); 

In Muller, supra, the Court said on page 422, 

U . . .Even though all restrictions on political, 

personal and contractual rights were taken away, 

and she stood, so far as statutes are concerned, 

upon an absolutely equal plane with him, it would 

still be true that she is so constituted that 

she will rest upon and look to him for protection; 

that her physical structure and ~a proper discharge 

of her maternal functions -- having in view not 

merely her own health, but the well-being of the 

race -- justify legislation to protect her from 

the greed as well as the passion of man." 

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Honorable Tommy V. Smith, Page 3, (M-363) 

In 

Fed.Supp. 

Mengelkoch v. Industrial Welfare Commission, 284 

950 (Cal. Dist. 1968), also 284 Fed.Supp. 956 

(Cal. Dist. 1968), it was held that where there are prior 

United States Supreme Court decisions upholding state 

statutes such as Article 5172a and no subsequent decisions have overruled these previous decisions, it is 

improper to test constitutionality of such statutes by a 

three-judge Federal Court. It was reasoned that a Supreme 

Court decision is as binding as statutory law and it was 

held that the court was without jurisdiction to decide 

whether California's statute (Section 1350 of the California Labor Code, which prohibits women from working more 

than eight (8) hours a day or more than forty-eight (48) 

hours a week) had been pre-empted by the Civil Rights Act. 

The basis of the holding was that the Plaintiff had failed 

to raise a substantial constitutional issue under the 

Equal Protection Clause of the United States Constitution. 

The Court nonetheless contributed some pertinent judicial 

dicta on page 954, as follows: 

"On the other hand, this may depend upon the 

character of the employment. The classification 

of women as a group needing some particular protection of the law may still be reasonable for 

many purposes. It has also been pointed out 

that the abandonment of limitations on working 

hours for women would place women on an equal 

basis with men in the matter of overtime pay, 

but at the same time would also make them subject to the obligation to perform as much overtime 

work as required of men. This is a mixed blessing. It is not a matter of letting women earn 

overtime when they want to, but an obligation to 

work overtime whether they want to or not on 

pain of being discharged. This could result in 

women being squeezed out of certain industrial 

work rather than broadening the employment base 

and opportunity for women in industry. It is 

not so certain as plaintiffs assume that their 

position represents the will of many other women, 

even if similarly situated. 

"Plaintiffs have not distinguished the 

issue presented from the one presented in Muller 

v. Oregon, supra. The principle of stare decisis 

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Honorable Tommy V. Smith, Page 4, (M-363) 

United 

must ultimately control the decision at the district court level. A Supreme Court decision is 

as binding as statutory law. The district court, 

even sitting as a three-judge tribunal, cannot 

reverse the Supreme Court. When the law has 

developed through intervening decisions to the 

point that it has become clear that the Supreme 

Court has abandoned the reasoning which gave 

rise to an earlier decision and that the law 

has in fact changed and all that is needed is 

recognition, then an inferior court should recognize what is obvious and act accordingly. nowever, there has been no line of decisions which 

cast doubt upon the basic holding of Mull&. Therefore, this case does not present a substantial constitutional issue. Mere speculation as to what 

the Supreme Court might do in the light of the 

changed circumstances will not suffice to take 

this issue out of the insubstantial category." 

The foregoing decision was appealed directly to the 

States Supreme Court. See 21 L.Ed. 2d.215; ~89 SCt. 

Here the Court held that it had no jurisdiction 

artain a direct appeal from the decision of a sinole 

to 

judge, and when a three-judge court dissolves itself for 

want of jurisdiction, an appeal lies to the appropriate 

Court of Appeals and not to the Supreme Court. On page 216 

the Court said, 

"A three-judge federal court convened pursuant to 28 USC §2281; determined that 'there 

is no idurisdiction for a three-iudqe court' 

and entered an order dissolving itself. 

F.Supp. . The single district judge 

in whose-&t- case was originally filed 

considered further and dismissed the case without prejudice under the doctrine of abstention, 

stating in his memorandum opinion that '[tlhe 

order dissolving the three-judge court is incorporated in this memorandum by reference.' 

F.Supp. -' -* 

from both judgments. 

Appellant appeals 

In these circumstances, 

we have no jurisdiction to entertain a direct 

appeal from the decision of the single judge; 

such jurisdiction is possessed only by the 

appropriate United States Court of Appeals. 

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Honorable Tommy V. Smith, Page 5, (M-363) 

28 USC 91291. Moreover, we have held that 

when, as here, a three-judge court dissolves 

itself for want of jurisdiction, an appeal lies 

to the appropriate Court of Appeals and not to 

this Court. Wilson v. Port Lavaca, 391 U.S. 

352, 20 L.Ed. 2d 636, 88 S.Ct. 1502. 

"Although the appellants have lodged in the 

Court of Appeals for the Ninth Circuit a protective appeal from the decision of the single 

judge, it does not appear from the record that 

such an appeal has been filed with respect to 

the three-judge order. Therefore, we vacate 

the order of the three-judge court and remand 

the case to the District Court so that a timely 

appeal may be taken to the Court of Appeals. 

See Wilson v. Port Lavaca, supra; Utility Comm'n 

v. Pennsylvania R. Co., 382 U.S. 281, 282, 15 

L.Ed. 2d 324, 325, 86 S.Ct. 423. The appeal 

from the decision of the single judge is dismissed for want of jurisdiction. 

"It'is so ordered." 

The case is now on appeal to the United States Court 

of'Appeal8, Ninth Circuit. 

The only other recent case we have found dealing with 

this problem is Rosenfeld v. Southern Pacific Co, F.Supp. 

59 L.C. 9172, 69'LRRM 2822'(C.D. Calif. Civil No. 

~&J-F. NOVS-22. 1968). Here the Court held that the same 

California statute; Section 1350 of the California Labor Code, 

which prohibits female employees from working more than eight 

(8) hours per day or forty-eight (48) hours per week does not 

constitute a bona fide occupational qualification within the 

meaning of the 1964 Civil Rights Act. The Court also held 

that the California hours and weights legislation discriminates 

against women on account of sex, which violates the provisions 

of the Civil Rights Act of 1964. The court concluded such 

legislation is contrary to the Supremacy Clause (Article VI, 

Clause 2) of the United States Constitution and therefore, is 

void, and of no force or effect. No cases are cited in this 

opinion, and the decision is presently being appealed to the 

United States Court of Appeals, 9th Circuit. The opinion is 

contrary to all previous United States Supreme Court cases in 

this field which have upheld state legislation passed to protect female employees. 

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Honorable Tommy V. Smith, Page 6, (M-363) 

We are not bound by the decision of a United States 

District Court in another jurisdiction, and under the circumstances shown we must uphold the constitutionality of 

the Texas statute if under any reasonable construction a 

court may so uphold it. 

It is fair to assume that Congress would not have 

included Title 42 U.S.C., Section 2000h-4, had'it intended 

to pre-empt such state legislation. The federal statutory 

provision states: 

"Construction of provisions not to exclude operation of State laws and not to invalidate consistent State laws 

"Nothing contained in any title of this Act 

shall be construed as indicating an intent on 

the part of Congress to occupy the field in 

which any such title operates to the exclusion 

of State laws on the same subject matter; nor 

shall any provision of this Act be construed 

as invalidating any provision of State law unless such provision is inconsistent with any 

of the purposes of this Act, or any provision 

thereof. Pub.L. 88-352, Title XI, 5 1104, 

July 2, 1964, 78 Stat. 268." 

We also find that the General Counsel for Equal employment Opportunity Commission charged.with investigating complaints filed under the 1964 Civil Rights Act, in an opinion 

released'on April.28; 196J'saidi 

"Effect of Title VII on federal overtime limitation. 

"Title VII does not repeal by implication existing 

federal laws concerning employment of women or authorise employers to violate such laws. Consequently, 

federal law forbidding employers in the District of 

Columbia to employ women for more than eight hours 

a day is not in conflict with Title VII. However, 

employers should seek all available administrative 

exceptions to laws restricting employment opportunities for women. 

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Honorable Tommy V. Smith, Page 7, (M-363) 

"In your letter you state that the Minimum Wage 

and Industrial Safety Board of the District of 

Columbia has notified you that you may not work your 

female employees more than eight hours a day, although no such limitation is applicable to male 

employees. You ask if the Board's action is inconsistent with Title VII of~the Civil Rights Act. 

"The maximum hour limitation you refer to is 

imposed by act of Congress, D.C. Code, 9 36-301. 

The Comniission does not believe that Title VII 

was intended to repeal by implication existing 

federal laws regarding the employment of women, 

and, consequently, we do not believe that Title 

VII authorizes an employer to violate requirements imposed by such laws. However, the Commission does believe that to comply with Title 

VII an employer should seek whatever administrative exceptions may be available under such laws." 

See C.C.H. Employment Practices Guide, Paragraph 

17,304.56. 

If Congress did not intend to pre-empt federal laws 

regulating the maximum number of hours women can work in the 

District of Columbia, neither did Congress intend for the 

Civil Rights Act of 1964 to pre-empt similiar state laws 

designed to protect female employees by setting the maximum number of hours they may work. 

Furthermore, in January, 1967, The Missouri Attorney 

General's office wrote an opinion on this problem and concluded that the 1964 Civil Rights Act had not pre-empted 

a Missouri statute very similiar to Article 5172a. See 

Missouri Attorney General's Opinion No. 45 (1967). 

It is the opinion of this office that Article 5172a 

has not been shown by,any binding authority to be invalid 

or to have been pre-empted by the federal Civil Rights Act 

of 1964. Under these circumstances we must hold that Article 

5172a is-valid and constitutional. 

SUMMARY 

The Federal Civil Rights Act of 1964, which prohibits discrimination because of sex in employment, 

has not invalidated Article 5172a, V.C.S., which 

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Honorable Tommy V. Smith, Page 8, (~-363) 

prohibits female employees from working more than 

nine (9) hours per twenty-four (24) hour day or more 

than fifty-four (54) hours per week in certain industries. 

Vefltruly yours, 

Prepared by Ronald Luna 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. MARTIN 

Kerns Taylor, Chairman 

George Kelton, Vice-Chairman 

Monroe Clayton 

Bob Lattimore 

Charles Rose 

Harold Kennedy 

W.V. Geppert 

Staff Legal Assistant 

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