March 18, 1969 d"""'""'

HonorableTommyV. Smith Commissioner Bureau of Labor Statistics State of Texas Capitol Station Austin, Texas 78711

Dear Mr. Smith: OpinionNO. ~-363

Re: Whether under federal law Article 5172a,V.C.S., conflictswith 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 invalidby reason of Title VII of the Civil RightsAct 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 businesseswithin the State. Sections 2 and 3 provide for overtime pay.
Section 4makes itmandatory for the employers mentioned in Sections 1 thru 3 to provide seats for female employeeswhen 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 pertinentparts of the 1964Civil Rights Act which prohibit discriminationbecause of sex are found in 42 U.S.C.A., Section 2000e-2,and read as follows:

n(a) It shallbe an unlawful employmentpractice for
an employer ----

(1) to fail or refuse to hire or to discharge any individual,or otherwise to discriminate against any individualwith respect to his compensation, terms, conditions, or privileges of employment,because of such individual'srace, 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 individualof employment opportunitiesor otherwise adversely affecthis statusas an employee, because of such individual'srace, 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~Centurymany states includingTexas passed,legislationto protect female employees. Becauseprior to the passage of these "femaleprotection laws" some employers had exploited both female and~childemployeeswith 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, seeMiller 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

. . .Eventhough all restrictionson political, personal and contractual rights were taken away, and she stood, so far as statutes are concerned, upon an absolutely equalplane 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~aproper 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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In Fed.Supp.Mengelkoch v. IndustrialWelfare 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 subsequentdecisions have overruled these previous decisions, it is improper to test constitutionalityof such statutesby a three-judgeFederalCourt. It was reasoned that a Supreme Court decision is as binding as statutory law and it was held that the court was without jurisdictionto decide whether California's statute (Section1350 of the CaliforniaLabor Code, which prohibitswomen fromworkingmore than eight (8)hours a day or more than forty-eight (48) hours a week) had been pre-empted by the Civil RightsAct. The basis of the holding was that the Plaintiffhad failed to raise a substantialconstitutional issue under the Equal ProtectionClause of the United StatesConstitution. The Court nonetheless contributed somepertinent judicial dicta on page 954, as follows:

"On the other hand, this may depend upon the characterof the employment. The classification of women as a group needing some particularprotection of the lawmay still be reasonable for many purposes. It has also been pointed out that the abandonment of limitationson working hours forwomen would place women on an equal basis with men in thematter of overtime pay, but at the same timewould 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 lettingwomen earn overtimewhen they want to, but an obligation to work overtimewhether 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 employmentbase and opportunity forwomen in industry. It is not so certain as plaintiffs assume that their position represents the will of many other women, even if similarly situated.

"Plaintiffshave not distinguished the issuepresented from the one presented in Muller
v. Oregon, supra. The principle of staredecisis

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Unitedmust 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-judgetribunal, cannot reverse the Supreme Court. When the law has developed through interveningdecisions to the point that it has become clear that the Supreme Court has abandoned the reasoningwhich gave rise to an earlierdecision and that the law has in fact changed and all that is needed is recognition, then an inferior court should recognizewhat is obvious and act accordingly. nowever, there has been no line of decisionswhich cast doubt upon the basic holding of Mull&. Therefore, this case does not present a substantial constitutional issue. Mere speculationas to what the Supreme Courtmight do in the light of the changed circumstanceswill not suffice to take this issue out of the insubstantialcategory."

The foregoingdecisionwas appealeddirectly to the States SupremeCourt. See 21 L.Ed. 2d.215;~89SCt. 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-judgecourtdissolves 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 convenedpursuant to 28 USC §2281;determined that 'there is no idurisdiction for a three-iudqe court' and entered an order dissolving itself. F.Supp.

. The singledistrict 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-judgecourt is incorporated in thismemorandum 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 appropriateUnited StatesCourt of Appeals.

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28 USC 91291. Moreover, we have held that when, as here, a three-judge court dissolves itself forwant of jurisdiction,an appeal lies to the appropriateCourt of Appeals and not to this Court. Wilson v. Port Lavaca, 391 U.S. 352, 20 L.Ed. 2d 636, 88 S.Ct. 1502.
"Althoughthe 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-judgeorder. 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. PennsylvaniaR. 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 forwant 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 founddealingwith this problem is Rosenfeldv. 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 fromworking more than eight (8)hours per day or forty-eight (48)hoursper week does not constitute a bona fide occupational qualificationwithin the meaning of the 1964Civil Rights Act. The Court also held that the California hours and weights legislationdiscriminates againstwomen on account of sex, which violates the provisions of the Civil RightsAct of 1964. The court concluded such legislationis contrary to the SupremacyClause (ArticleVI, 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 SupremeCourt cases in this fieldwhich have upheld state legislationpassed to protect female employees.

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We are not bound by the decision of a United States District Court in another jurisdiction,and under the circumstances shownwe must uphold the constitutionalityof the Texas statute if under any reasonableconstruction a courtmay so uphold it.

It is fair to assume that Congresswould not have includedTitle 42 U.S.C., Section 2000h-4,had'it intended to pre-empt such state legislation. The federal statutory provision states:

"Constructionof provisionsnot to exclude operation of State laws and not to invalidateconsistent State laws "Nothing contained in any title of this Act shall be construed as indicatingan 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 subjectmatter; nor shall any provision of thisAct be construed
as invalidatingany provision of State law unless such provision is inconsistentwith any of the purposes of thisAct, 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 RightsAct, in an opinion released'onApril.28; 196J'saidi

"Effectof Title VII on federalovertime limitation.

"TitleVII does not repeal by implicationexisting federal laws concerning employmentof women or authorise employers to violate such laws. Consequently, federal law forbiddingemployers in the District of Columbia to employwomen formore than eight hours
a day is not in conflictwith Title VII. However, employers should seek all available administrative exceptions to laws restrictingemployment opportunities for women.

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"Inyour letteryou state that the Minimum Wage and Industrial Safety Board of the District of Columbia has notifiedyou thatyou may not work your female employeesmore than eight hours a day, although no such limitation is applicable to male employees. You ask if the Board's action is inconsistentwith Title VII of~the Civil Rights Act.

"Themaximum hour limitationyou refer to is imposedby 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 imposedby such laws. However, the Commission does believe that to comply with Title VII an employer should seek whatever administrative exceptionsmay be available under such laws." See C.C.H. Employment PracticesGuide, Paragraph 17,304.56.

If Congress did not intend to pre-empt federal laws regulating themaximum number of hours women can work in the District of Columbia, neitherdid Congress intend for the Civil RightsAct of 1964 to pre-empt similiar state laws designed to protect female employees by setting the maximum number of hours theymay 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 thatArticle 5172a has not been shown by,any binding authority to be invalid
or to have been pre-emptedby the federal Civil RightsAct of 1964. Under these circumstanceswe must hold thatArticle 5172a is-validand constitutional.

SUMMARY

The Federal Civil Rights Act of 1964,which prohibits discriminationbecause of sex in employment, has not invalidatedArticle 5172a,V.C.S., which

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prohibits female employees fromworkingmore 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 AssistantAttorney 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 LegalAssistant

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