THE AITORNEY GENERAL 

OP rl%xKAs 

AUSTIN. T-s 78711 

March 11, 1974 

The Honorable Jackie W. St. Clair 

Commissioner 

Bureau of Labor Statistics 

Capitol Station 

Austin, Texas 78711 

The Honorable Henry Rothell 

Administrator 

Texas Employment Commission 

Austin, Texas 78778 

Gentlemen: 

Opinion No. H- 254 

Re: Whether Article 5172a, 

Vernon’s Texas Civil Statutes, 

a female protective act, conflicts 

with Title VII of the Civil Rights 

Act of 1964 (42.,USC $ ZOOOe-2) 

You have asked whetherArticle~5172a. Vernon’s Texas Civil Statutes, is 

void due to an apparent conflict with portions of Title VII of the.Civil Rights Act 

of 1964, codified as 42 USC 8 ZOOOe-2. 

Prior to its amendment in 1971. Article 5172a. V. T. C. S. , provided,in its $1: 

“No female shall.be employed in any factory, mine; 

mill, . . . or enterprise where females are employed, 

for more than nine (9) hours in any one calendar day, 

nor more than fifty-four (54) hours in any one calendar 

week. ” 

Other sections of the Article contained exceptions. 

As you have noted in your letter to us, the validity of the statute was challenged in a class suit filed in the United States District Court which entered its 

order on May 21, 1971, holding that it was: 

“ORDERED that Article 5172a, Vernon’s Ann. Civ. St. 

of Texas be, and it is hereby, declared to be in conflict 

with Title VII, Section 703(a) of the Civil Rights Act of 

1964. 42 U.S. C. A. 5 ZOOOe-2(a) and therefore void under 

the Supremacy Clause of Article VI of the United States 

Constitution;. . . ” 

In the meantime a bill was introduced in the 62nd Legislature to amend $1 

of Article 5172a so that it would have read, in part: 

p. 1185 
The Honorable Jackie W. St. Clair (H-254) 

The Honorable Henry. Rothell. 

Page 2 

“No person employed in any factory, mine, mill, 

. . . or other business enterprise, shall be required 

by their employer to work in excess of nine hours 

in any one calendar day, nor more than 54 hours in any 

one calendar week, without the express consent of the 

affected employee. ” (emphasis added) 

This bill was amended and adopted on May 20, 1971 (Acts 1971, 62nd Leg., 

ch. 473, p. 1671, effective August 30, 1971) and now provides in its $1: 

“No female employed in any factory, mine, mill, 

. . or other business enterprise, shall be required 

by her employer to work in excess of nine (9) hours 

- 

in any twenty-four (24) hour day, nor more than fiftyfour (54) hours in any one calendar week, without the 

consent of the affected employee. ” (emphasis added) 

In an order entered August 14, 1971, the Federal Court declined to pass 

upon the amended statute and, to our knowledge, no other court has determined 

the question. 

Title VII of the Civil Rights Act of 1964, which generally applies to 

employers having 25 or more.employees, provides in part at 42 U. S. C. 

5 ZOOOe-2: 

“(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 

or applicants for employment 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. ” 

The act permits discrimination where sex is~ a bona fide occupational 

qualification; howeven that exception is to be construed very narrowly. Weeks 

v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (5th Cir. 1969). 

p. 1186 
The Honorable Jackie W. St. Clair, (H-254) 

The Honorable Henry Rothell, 

Page 3 

The Equal Employment Opportunity Commission~(hereafter EEDC) has 

promulgated regulations under the federal statute. These provide in part, 

at 29 C. F. R. 5 1604.2: 

l’(b) Effect of sex-oriented State employment legislation. 

“(1) Many States have enacted laws or 

promulgated administrative regulations with 

respect to the employment of females. Among 

these laws are those which prohibit or limit 

the employment of females, e. g., the employment of females in certain occupations, in jobs 

requiring the lifting or carrying ,of weights 

exceeding certain prescribed limita; during 

certain hours of the night, for more than a 

specified number of hours per day or per week, 

and for certain periods of time before Andy after 

childbirth. The Commission has found that 

such laws and regulations do not take into 

account the capacities, preferences, and. 

abilities of individual females and, therefore, 

discriminate on the basis of sex. The Commission has concluded that such laws and 

regulations conflict with and are superseded 

by title VII of the Civil Rights Act of 1964 

Accordingly, such laws will not be considered 

a defense to an otherwise established unlawful 

employment practice’or as a basis for the 

application of the bona fide occupational 

qualification exception. 

11 

. . . 

“(3) A number of States require that 

minimum wage and premium pay for overtime 

be provided for female employees. An employer 

will be deemed to have engaged in an unlawful 

employment practice if: 

p. 1187 
The Honorable Jackie W. St. Clair, (H-254) 

The Honorable Henry Rothell, 

Page 4 

“(i) It refuses to hire or otherwise 

adversely affects the employment opportunities 

of female applicants or employees in order 

to avoid the payment of minimum wages or 

overtime pay required by State law; or 

“(,ii) It does not provide the same 

benefits for male employees. 

“(4) As to other kinds of sex-oriented 

State employment laws, such as those requiring special rest and meal periods of physical 

facilities for women, provision of these benefits 

to one sex only will be a violation of title VII. 

An employer will be deemed to have engaged 

in an unlawful employment practice if: 

“(i) It refuses to hire or otherwise 

adversely affects the employment opportunities 

of female applicants or employees in order 

to avoid the provision of such benefits; or 

“(ii) It does not provide the same 

benefits for male employees. If the employer 

can prove that business necessity precludes 

providing these benefits to both men and 

women, then the State law is in conflict with 

and superseded by title VII as to this employer. 

In this situation, the employer shall not provide 

such benefits to members of. either sex. ” 

(emphasis added) 

The EEOC administrative interpretation of the Act is entitled to great 

deference. Griggs v. Duke Power Co., 401 U.S. 424 (1971); Hays v. Potlatch 

Forests, Inc., 465 F. 2d 1081 (8th Cir. 1972). Pursuant to these and earlier 

guide lines the EEOC has consistently found state protective laws to be invalid. 

See cases collected il n CCH EEOC Decisions. 

p. 1188 
The Honorable Jackie W. St. Clair, (H&254) 

The Honorable Henry Rothell, 

Page 5 

The problem posed by the coexistence of Article 5172a and the Civil 

Rights Act requirements is stated by Mr. Rothell’s letter as fol1ow.s: 

“It is apparent that Texas employers cannot 

comply with both the Civil Rights Act of 1964, 

on the one hand, and Article 5172a, on the other 

hand, in modifying their work schedules in this 

manner. It is also quite apparent that it is 

unfair to penalize. these employers for complying 

with Federal legislation in those cases when 

female employees choose to quit or to be discharged because of their refusal to comply with 

the new work schedules. 

“Therefore~, the Commission respectfully requests 

your opinion on the validity of Article 5172a, 

Vernon’s Texas Civil Statutes, as amended in 

1971, and on the effect of its apparent conflict 

with the prohibitions contained in the Civil 

Rights Act of 1964. ” 

Despite the ‘legislative efforts to eliminate conflicts between the two 

laws, it is our opinion that Article 5172a still has a discriminatory effect. 

Men are denied the benefits accorded women in relation to the right to 

refuse to work beyond certain hours and to the entitlement to overtime. 

Clearlv. the sex discrimination attacked by the Civil Rights Act is not limited _ 

to discrimination against women. Diaz v. -Pan American World Airways, Inc., 

442 F. 2d 385 (5th Cir. 1971), cert. denied, 404 U. S. 950 (1971). EEOC guidelines take. note of the fact that a law of this type does “not take into account the 

canacities. preferences, and abilities of individual females. ” 29 CFR $1604. 2 

(bj(1). See also, Hays v. Potlatch Forests, supra. Homemakers, Inc., Los 

Angeles, v. Division of Inxtrial Welfare, 356 F. Supp. 1111 (N. D. Calif. 

1973), CCH EEOC Decisions (1973) lp6348 (Feb. 18, 1972). And see Art. 1 

Sec. 3(a) of the Texas Constitution. 

The effect of a determination that a state. law relating to 

employment isdiscrimina,tory has been the subject of some dispute. Although 

there are decisions holding that employers would be required to extend the 

p. 1189 
The Honorable Jackie W. St. Clair, (H-254) 

The Honorable Henry Rothell, 

Page 6 

benefits required to be given to members of the favored sex to members of 

the’other sex, [Hays v: Potlatch Forests, supra; Potlatch Forests, Inc. v. 

Hays, 318 F. Supp. 1368 (E. D. Ark. 1970); CCH EEOC Decisions (1973) 

P 6348 (Feb. 18, 1972)], the majority rule appears to be to declare the state 

law invalid because of its conflict with the federal statute and to refuse to 

extend state statutory protections to the members of both sexes. Homemakers, 

Inc. v. Division of Industrial Welfare, supra; Burns v. Rohr Corp., 346 F. 

Supp. 994 (S. D. Cal. 1972); Caterpillar Tractor Co. v. Grabiec, 317 F. Supp. 

1304 (S. D. nl. 1970). 

It is our opinion that the hours and overtime provisions of Article 5172a 

are in conflict with Title VII of the Civil Rights Act of 1964. Although the 

state law covers more employers than the federal law, we believe it must 

fall in its entirety as to hold otherwise would require a rewriting of the statute 

to limit it in a manner which apparently was not within the contemplation of 

the Legislature. 

SUMMARY 

The provisions of Article 5172a, Vernon’s Texas 

Civil Statutes, requiring that women be paid premium pay for 

overtime in certain situtations and prohibiting employers from 

requiring that a woman work in excess of a certain number of 

hours without her consent are invalid due to their conflict with 

Title, VII of the Civil Rights Act of 1964. 

Yours verv trulv, 

L. HILL 

Attorney General of Texas 

Opinion Committee 

p. 1190