# THE AITORNEY GENERAL OP rl%xKAs
AUSTIN. T-s 78711

March 11, 1974

The Honorable Jackie W. St. Clair

Commissioner Bureau ofLabor 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, afemale protective act, conflicts with Title VII ofthe 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 ofthe.Civil Rights Act of 1964, codified as 42 USC 8ZOOOe-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 inany one calendar day, nor more than fifty-four (54) hours inany one calendar week. ” Other sections oftheArticle contained exceptions. As you have noted inyour letter to us, the validity ofthe statute was challenged ina class suit filed inthe 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 itis hereby, declared tobe in conflict with Title VII, Section 703(a) ofthe Civil Rights Act of 1964. 42 U.S. C.A. 5ZOOOe-2(a) and therefore void under the Supremacy Clause of Article VI ofthe United States Constitution;.
. .” Inthe meantime abill was introduced inthe 62nd Legislature to amend $1 ofArticle 5172a so that itwould have read, inpart:

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

The Honorable Henry. Rothell. Page 2 “No person employed inany factory, mine, mill,

. . . or other business enterprise, shall be required by their employer towork in excess of nine hours in any one calendar day, nor more than 54 hours inany one calendar week, without the express consent ofthe 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 towork in excess of nine (9) hours - inany twenty-four (24) hour day, nor more than fiftyfour (54) hours inany one calendar week, without the consent ofthe affected employee. ” (emphasis added) Inan 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 ofthe Civil Rights Act of 1964, which generally applies to employers having 25 or more.employees, provides inpart at 42 U.S.C. 5ZOOOe-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 tohis 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~abona fide occupational qualification; howeven thatexception is to be construed very narrowly. Weeks v. Southern Bell Telephone &Telegraph Co., 408 F. 2d 228 (5th Cir. 1969).

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The Honorable Henry Rothell, Page 3

The Equal Employment Opportunity Commission~(hereafter EEDC) has promulgated regulations under the federal statute. These provide inpart, at 29 C.F. R. 51604.2: 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 offemales, e.g., the employment of females in certain occupations, injobs requiring the lifting or carrying ,ofweights exceeding certain prescribed limita; during certain hours ofthe night, for more than a specified number ofhours per day or per week, and for certain periods oftime before Andy after childbirth. The Commission has foundthat such laws and regulations do not take into account the capacities, preferences, and. abilities of individual females and, therefore, discriminate onthe basis of sex. The Commission has concluded that such laws and regulations conflict with and are superseded by title VII ofthe Civil Rights Act of 1964 Accordingly, such laws will not be considered a defense to an otherwise established unlawful employment practice’or as abasis for the application ofthe 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 tohave engaged inan unlawful employment practice if:

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The Honorable Henry Rothell, Page 4

“(i) Itrefuses to hire or otherwise adversely affects the employment opportunities of female applicants or employees inorder to avoid the payment ofminimum wages or overtime pay required by State law; or

“(,ii) Itdoes 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 ofphysical facilities for women, provision ofthese benefits to one sex only will be aviolation oftitle VII. An employer will be deemed to have engaged in an unlawful employment practice if:

“(i) Itrefuses tohire or otherwise adversely affects the employment opportunities of female applicants or employees inorder to avoid the provision of such benefits; or

“(ii) Itdoes notprovide the same benefits for male employees. Ifthe employer can prove that business necessity precludes providing these benefits toboth men and women, then the State law is in conflict with and superseded by title VII as to this employer. Inthis situation, the employer shall not provide such benefits to members of.either sex. ” (emphasis added) The EEOC administrative interpretation ofthe 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 nCCH EEOC Decisions.

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

The Honorable Henry Rothell, Page 5 The problem posed by the coexistence ofArticle 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, inmodifying their work schedules inthis manner. Itis also quite apparent that it is unfair topenalize. these employers for complying with Federal legislation inthose cases when female employees choose to quit or tobe discharged because oftheir refusal to comply with the new work schedules. “Therefore~, the Commission respectfully requests your opinion on the validity ofArticle 5172a, Vernon’s Texas Civil Statutes, as amended in 1971, and onthe effect of its apparent conflict with the prohibitions contained inthe Civil Rights Act of 1964. ” Despite the ‘legislative efforts to eliminate conflicts between the two laws, itis our opinion that Article 5172a still has a discriminatory effect. Men are denied the benefits accorded women in relation tothe right to refuse towork beyond certain hours and to the entitlement to overtime. Clearlv. the sex discrimination attacked by the Civil Rights Act is notlimited

_ 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 ofthe fact that alaw ofthis 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) ofthe Texas Constitution. The effect ofa 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

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benefits required tobe given to members of the favored sex to members of the’other sex, [Hays v: Potlatch Forests, supra; Potlatch Forests, Inc. v. Hays, 318F. Supp. 1368 (E. D. Ark. 1970); CCH EEOC Decisions (1973) P6348 (Feb. 18, 1972)], the majority rule appears tobe 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 ofboth 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, 317F. Supp. 1304 (S. D. nl. 1970). Itis our opinion that the hours and overtime provisions ofArticle 5172a are in conflict with Title VII ofthe 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 ofthe statute tolimit it in amanner which apparently was not within the contemplation of the Legislature. SUMMARY The provisions ofArticle 5172a, Vernon’s Texas Civil Statutes, requiring that women be paid premium pay for overtime in certain situtations and prohibiting employers from requiring that awoman work in excess ofa certain number of hours without her consent are invalid due to their conflict with Title, VII ofthe Civil Rights Act of 1964. Yours verv trulv,

L. HILL Attorney General of Texas

Opinion Committee

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