Warren E. Burger: We will hear arguments first this morning in City of Los Angeles against Manhart and others. Mr. Oliphant you may proceed whenever you are ready.
David J. Oliphant: Mr. Chief Justice may it please the Court. We are here today because the Court of Appeals refuses to follow the Supreme Court in General Electric versus Gilbert. Manhart decision was issued just ten days before the Gilbert decision came down and was directly contrary to the Gilbert decision. Nevertheless, two of the three judges refused to change their opinion. We are also here because the Court of Appeals refused to follow the plain language of the statutes and the will of Congress. This is just a question of statutory construction but what the respondents seek is a policy statement from the Court contrary to the plain language of the statute, contrary to the will of congress and contrary to the decisions of this Court in Gilbert and in Nashville, Nashville Gas versus Satty. In September, a case was filed in the Northern District of California are entitled Retired Public Employees Association versus the State of California. The case is a suit under Title VII by females to recover back retirement contributions and by males to increase retirement benefits. The California Public Employee Retirement System had both unequal contributions and unequal benefits based on sex differentiated actuarial tables. We cite this case simply to emphasize to the Court today that in this particular case, only the female employees are before the Court but the impact of this decision will affect male employees, their spouses and a multitude of Retirements Systems across the country has witnessed the many Amicus briefs that have been filed.
Warren E. Burger: Will it have any effect on the Insurance Companies charging more for annuities for women and for men?
David J. Oliphant: Ultimately, it may your honor, yes.
Warren E. Burger: And higher rates correspondingly for joint and survivorship annuities for a husband and wife?
David J. Oliphant: Yes your honor. We would like to point out first four points that we would like to make in argument and then commence the arguments if we may. First, this case is just an application of the principles in General Electric versus Gilbert. Second, Title VII and the Equal Pay Act do not prohibit the practice challenge that is to measure contributions and benefits in retirement plans using sex differentiated mortality tables. Third, the Lower Courts in order to arrive at the contrary decision, as they did had to abdicate their responsibility and differ totally to decisions of administrative agencies that were contrary to the statutes and contrary to their own authority to issue such bulletins. And finally, Congress did not intend adapting different standards for discrimination under Title VII then were previously known in 1964 under the Equal Protection clause under the Fourteenth Amendment. I would like to begin by saying at first; there is no discrimination in the retirement plan. The facts are simple, males and females receive the same gross salary but the department simply withholds more for retirement from the female salary than from the males because all the mortality experience and more particularly the department's mortality experience show that women have a greater life expectancy. This is true at all ages and of course, it is true in retirement. It is impossible to test or determine individual life expectancy, there is no way you contest for it so you have to fund based on group mortality experience. Group mortality experience showing that women will receive far more pay outs than men; you have only three ways of doing it. Given the greater life expectancy of females over males, you can either have the females pay the additional cost of their life expectancy or you can have the employer pay it or the females and the employer together or you can have the male subsidize the females. In the department’s plan, the females pay slightly higher contribution than the males and that was matched by the department 110 percent so that the department also paid more to females than the males.
Speaker: Mr. Oliphant, is it true that members of one race or actuarial principle might have a longer expectancy than members of another race?
David J. Oliphant: It is possible but our current actuarial statistic seem to indicate that the difference between Whites and Non-Whites which is the only racial characteristics that I have seen studies on indicate that they are getting closer and closer. As a matter of fact, in the later years over the 70s, it may be that the Non-Whites are actually outliving the Whites.
Speaker: Have insurance rates in fact been different for let us say for Blacks than for Whites?
David J. Oliphant: I think sometime back they were, they are not now.
Speaker: If they were today would this case be here on that possible basis?
David J. Oliphant: I do not know your honor because this case came under Title VII and it came under the sex qualifications of Title VII and Congress intended to treat sex in compensation entirely different than racing compensation.
Speaker: You just stated that race is no longer a factor then in setting of insurance rates, how did that come about, by voluntary actions on the part of Insurance Companies?
David J. Oliphant: I believe so.
Warren E. Burger: There was a time along at least through within our lifetimes when some Insurance Companies would not insure either American-Indians or Negroes, is that not so?
David J. Oliphant: That is true your honor.
Warren E. Burger: But that is no longer so.
David J. Oliphant: That is true.
Speaker: I did not quite understand.Did you say that in Title VII Congress treats sex discrimination entirely differently from the way the statute treats racial discrimination?
David J. Oliphant: In the compensation area, yes your honor.
Speaker: As the BFOQ of course for discriminating as between men and women, males and females and that does not exist, it is a justification for discriminating among races but except for that, is there any difference in Title VII?
David J. Oliphant: Yes your honor, there is the Bennett Amendment to Sections 703(h) which very specifically incorporates the Equal Pay Act into Title VII and the Equal Pay Act intended allowing pension differentials to continue. There is a quite difference, I think your honor between race and sex in terms of longevity. It is very clear that in the sex area, this is more than just something that may be cultural as the Blacks for example becomes more and more a part of the middle classes in our society so their life expectancies are pulling together. The reverse is true with females as more and more come into the workforce, their life expectancy is expanding. Our own department experience as the appendix shows is that the women are actually living longer than the men as they come into the workforce.
Speaker: Surely, there are actuarial tables available for just people are there not? Life expectancy of people in the United States of America of both sexes and to every ethnic background.
David J. Oliphant: There may be your honor.
Speaker: But now they are not?
David J. Oliphant: I do not know. I think there have been some constructive that would be a group statistic including everybody.
Warren E. Burger: Does the American experience table of mortality used by the Insurance Companies distinguish between men and women?
David J. Oliphant: I do not know your honor.
Warren E. Burger: But it surely does and has for more than 50 years on the rates of annuities.
David J. Oliphant: Yes your honor.
Warren E. Burger: No. If they did not distinguish, how would they have any basis for a different rate for annuities for women and for men?
David J. Oliphant: They do distinguish between men and women in the insurance industry --
Warren E. Burger: Then the answer must be that the American experience table does have a separate rating.
David J. Oliphant: I did not recognize the name of the table your honor. I apologize.(Inaudible) On the actuary do distinguish because you are talking about apples and oranges trying to fund. If you go into a single table, what you do for funding purposes of annuities essentially is you make the male subsidize the females.
Warren E. Burger: You mean this decision would?
David J. Oliphant: Yes your honor, if it were affirmed.
Speaker: How you can say that you make the people who do not live so long subsidize the people who leave longer?
David J. Oliphant: That is correct.
Speaker: Like I suppose the males who do not live so and then the people who die younger subsidize the males who live longer.
David J. Oliphant: That is correct too your honor. The difference is this that of the males who die younger that subsidize that males that die older. At the time that they purchase the annuity, they have an equal life expectancy that is not true between the male and the female at the time of purchase of annuity. What the plaintiffs in this case seek is not equality but more than equality, greater benefits than the males.
Speaker: Of course that is what the plaintiffs not on sought but in a way; were accorded in the recent Nashville case against Satty. Men just do not just get pregnant, do they?
David J. Oliphant: Yes your honor.
Speaker: And so women asking for treatment by an employer for a condition that men just do not have and that is sort of a (voice overlap). So that was in a way preferential treatment, they are asking for and were accorded.
David J. Oliphant: This Court did not award the pregnancy benefits --
Speaker: That is right but --.
David J. Oliphant: It did award the seniority. But I think the distinction there is that the Court was talking about section 703(a)(2) of Title VII. Particularly, equal employment opportunity and status as opposed to section 703(a)(1) where we are talking about compensation, I think there is a tremendous difference. One is depriving the individual of work the other is a difference in compensation. Of course we are not saying here that there was inequitable treatment, the treatment was actuarially equal. There is no way to have identical treatment and come out equitably for males and females. It is just like the Gilbert case, it is actuarially. I guess the best way of putting would be not facially neutral but factually neutral because the males and the females paid the same proportion, the same percentage of their total contributions for retirement plan and would actuarially end up with the same benefits.
Speaker: If it is not facially neutral would you say it is facially discriminatory?
David J. Oliphant: No your honor, I would not.
Speaker: But they receive different compensation on the face of it, do they not?
David J. Oliphant: They receive the same gross pay, they receive different take home but on a periodic basis at the same time as they are receiving different take homes, the females are actually getting more because the department was contributing more into the retirement plan for them, it is just an.
Speaker: But that is only available if they retire, if they quit, they do not get any of that.
David J. Oliphant: No, they get their retirement contributions back plus interest.
Speaker: But only the part they put in, do they get the employer's contribution too?
David J. Oliphant: Well, only if they retire and they have (voice overlap).
Speaker: If they quit before retirement age they only get their own contribution back.
David J. Oliphant: That is correct, plus the interest that is earned and that is true of any contingency retirement plan.
Speaker: If you say this is facially neutral as well as factually neutral.
David J. Oliphant: No, I said factually neutral.
Speaker: But if it is not facially neutral and you would say it is not facially discriminatory.
David J. Oliphant: No. It is not discriminatory, it is different and I will grant you that but it is not discriminatory because the treatment is equitable. The package it is, the package that is for --
Speaker: Are you defining the term discriminate to mean something that is cost justified is not discriminatory? And that is all as you can explain there is a difference in cost to justify the difference in original payment, it is not discriminatory.
David J. Oliphant: I think that is partially correct. I think beyond that, I think you have to look at the total value of package of what the employee is getting and --
Speaker: That is what I am really asking I suppose in General Electric as I understand the case, they held there was no prima facie case. I do not know whether you are arguing there is no prime facie case or that if there is a prima facie case, we have an affirmative defense that overcomes it.
David J. Oliphant: No, I say there is no prima facie case for two reasons, one because we were not discriminating because of the equal value if you will of the packages. The female actually gets more dollars and cents in value but it is equal in terms of actuarial. But more than that, because the Bennett Amendment itself to section 703(h) and in fact says that, “Shall not be an non-law employment practice to differentiate on that basis of sex in determining the amount paid or to be paid in compensation or wages so long as it is allowed by the Equal Pay Act.” And I think the legislative history is very clear this was allowed by Equal Pay Act.
Speaker: because I thought the Bennett Amendment was provided an affirmative defense that is why I really want to ask you the question. You say they qualify the prima facie case?
David J. Oliphant: I think they do your honor in Bowman v. Franks, this Court said the whole of section 703(h) was definitional of the Act and I think that is what Congress intended. Equal Pay Act does not require equal amounts of compensation, it is not an economically, it is not designed to takeover an employers business and say this is the level of compensation you will provide. All it does is it prohibits payment of different rates of wages between the sexes based on work where there is no other factor other, than sex as a basis for the differential. This particular case, the department pays the same gross salary schedule and to that extent, the wage rate is the same. Take home is a less but as we pointed out the contribution is not lost, it is merely differ to a later time and at that same time, large and matching amount is paid on behalf of the females for retirement. If we turned around and gave the gross salary to the males and the females and said, “Go and buy your own annuity”, private industry would charge the females more than the males. We would not have violated Title VII; we would be paying them the same gross salary. The only difference between that situation and our situation is that the department is providing the plan instead doing what is proper in private industry and in addition is contributing extra money for the female and for the male.
Speaker: Mr. Oliphant, under your new state law, you are now making equal payments aren't you?
David J. Oliphant: Yes your honor.
Speaker: Have you had any treats or suits by males?
David J. Oliphant: We have complaints; I think we have about three complaints to the EEOC by male groups on different. The one that is in the appendix by the Architects and Engineers’ Association, we really do not know what they are complaining about at this point because we have not received a complaint but essentially what their cause is that benefits and contributions are unequal.
Speaker: Well I take it you feel that the new state law is completely constitutional?
David J. Oliphant: Well all that the State Law has said is that we must equalize, what we have done in order to comply with that is the department has paid the difference, we have essentially foot the bill. I think an employer can do that, pay additional if he wants to foot that bill but that is not the question that is before the Court today.
Speaker: And why does he not violate Title VII? Why could not a man suing for violating Title VII if he does that?
David J. Oliphant: Well, Title VII, I think deals with differences in compensation that take you to the Equal Pay Act which talks about wages. If wages does not include pensions then I do not think we do not have any problem. I think the problem that arises is probably the Equal Pay Act problem that we are paying more total compensation to males. I am sorry to females than to males because we are paying the difference and the question is whether that violates the Equal Pay Act and that is another question down the road. I think the question here is whether we were violating Title VII. The fact that we may have equalized because we are required to by state law, I do not think that indicates that we were violating the statute before, I do not think we were, we were treating both equitably. It seems to me this is one of those guardian knots that the Court is going to be faced with, the males on one side or the females on the other.
Speaker: Of course, there is no doubt that this Federal Law supersedes the State Law on this subject unless if it is addressed to the same subject, unless there is an expressed or implied exception to allow the state to legislate it. When your legislating equality, it is hard to say that the Federal Statute requires equality but permits a state to require even more equality.
David J. Oliphant: I think that would be true unless they were getting into Tenth Amendment area. That would depend on whether you are talking about civil rights or simply regulating commerce.
Speaker: I want to be sure of your position as Justice Rehnquist obviously is. I take it that your position is this -- that it is alright to use objectively verifiable differentiating factors between the sexes and the determination of these rates but that you are not required to and since the change in your law -- you have gone along with and I take it that what you just said you think this is alright.
David J. Oliphant: I do not think it would be appropriate to used unisex tables your honor because there the males would be paying for the females. I think the difference, this is my own personal view, the difference is that here the employer is paying the extra himself but it does impact on males and we will be faced with that potential lawsuit for males as the State of California is.
Warren E. Burger: As Mr. Justice Rehnquist suggested, the females are getting a higher pay for the same work, total pay if you take into account the annuity.
David J. Oliphant: That is correct, that is correct.
Warren E. Burger: Well, your complaint about the Ninth Circuit is it, the Ninth Circuit opinion is that it requires the things, which are different, and they treat it as though they were the same.
David J. Oliphant: That is correct your honor. It is just as much a denial of Equal Protection to treat things that are dissimilar as equals as it is to treat things that are equals is a dissimilar fashion.
Speaker: Could be the same argument be made about smokers and non-smokers and one subsidizes the other?
David J. Oliphant: The argument could be made your honor but it does not make sense in terms of annuities because.
Speaker: Well, aren't there studies that show that the longevity of a non-smoker is greater than the longevity of the smoker.
David J. Oliphant: That is true your honor but if I were a smoker, well let me put it this way. If I am going to buy an annuity and they will give me a lower rate because I am a smoker, I will come in as a smoker and a drinker and an overweight, whatever I can do get the lowest rate.
Speaker: Well, these are not identifiable differences, though as so far as the actuaries are concerned. Is there any way that you can measure how long a person has smoked and how many packages does he smokes a day? The way you can measure the longevity of a man against a women?
David J. Oliphant: No your honor because these factors are within the control of the individual. I can stop smoking tomorrow. I can stop drinking tomorrow, the day after I bought my annuity.
Speaker: But why is it then Insurance Companies spend millions of dollars to stop their policy holders from smoking?
David J. Oliphant: I think you have to --
Speaker: Don't they?
David J. Oliphant: They do your honor. I think you have to look at the difference between Insurance and Annuity. In Insurance, the risk of smoking or drinking or --
Speaker: But don't this change them to sell annuity than (Inaudible)?
David J. Oliphant: I do not know of any but there may be your honor. That sells annuities that are cheaper for smokers.
Speaker: They advertise and spend all kind of money to stop people from smoking.
David J. Oliphant: I would think that is a public service your honor, it is.
Speaker: But what other public service do they pay for?
Warren E. Burger: The advertise about cancer and a whole lot of things, do they not?
David J. Oliphant: Yes your honor. I think if you were to provide lower rates in an annuity policy for smoking, drinking and overweight you would be encouraging bad health.
Speaker: Anybody who is only in the annuity business wants his customer and he would want him to die as promptly as possible. Is that not correct?
David J. Oliphant: That is correct your honor.
Speaker: And so.
David J. Oliphant: That is one of the problems of equalizing. If you are in a system as many are where they allow you to take annuity or a lump sum alternative then if unisex is the mandate of thing the males will take the lump sum as he is going to come out better. If you go out and buy a private annuity and the female will take the annuity because she will come out better, the result would be the.
Speaker: Suppose the women can argue that the reason their longevity is greater is because they have been discriminated against in the past and as if, if as many women had become company Presidents as men had, they too would have died in an earlier age from stress.
David J. Oliphant: That argument I think can be made but there is no statistics to fare it out your honor.
Speaker: You said in the contrary in a moment ago that the more the women come in to the labor market, the longer they live.
David J. Oliphant: That has been our experience your honor, very definitely.
Speaker: But when you say this is your experience you are not suggesting that this is the experience that has yet been reflected by the pervasive actuarial studies of the American experience in mortality.
David J. Oliphant: All that I have seen of actuarial studies has shown that the more females that come in to workforce, the longer the life expectancy they have. And I see nothing to show that the stress jobs make any difference. As a matter of fact, in those areas where males and females have similar jobs such as in teaching the difference seems to carry on the same, the statistics that teaches Insurance, one of the (Inaudible) indicate that the female teachers live just as much longer and the male teachers. Females in the general population leave longer than males. I think your honor, I would like to reserve time for rebuttal.
Warren E. Burger: Very well, Mr. Oliphant. Mr. Dohrmann.
Robert M. Dohrmann: Mr. Chief Justice, may it please the Court. This case is brought by women employees of the Los Angeles Department of Water and Power and by union that represents many of them, International Brotherhood of Electric Coworkers local 18. We are challenging an explicit sex classification, which violates 703 of Title VII of the Civil Rights Act. It is an explicit violation of that Act. It is expressed discrimination in every case, money is taken from a women’s paycheck and not from the man’s for one reason and one reason alone. That woman has become an imperfect and an imprecise surrogate for the term long life or longevity and that is it.
Warren E. Burger: What do you say about the lawsuit men might bring if they are required to subsidize the women?
Robert M. Dohrmann: Mr. Chief Justice, as the United Auto Workers and as the (Inaudible) CIO point out and indeed as the Societies of Actuaries point out in the briefs that they have filed with this Court, most plans in America are sex neutral, this is a rare plan that requires a mandatory contribution from the employee and discriminates between the employees on the basis of sex. It is a very rare event and I know of no such litigation in which men in the United Auto Worker plans and any other collectively bargained plan or in any other unilateral plan in which men have contended, wait a minute if the contribution is the same for women as for men, the women are living longer than we are and that is unfair. There is no such litigation Mr. Chief Justice and I suggest that there is a very good reason why.
Warren E. Burger: Why, when I put that question to you, it was a hypothetical question. I do not know whether there is litigation or not but the suggestion was made, that if men must subsidize women by paying more then the women will pay for the same return and that in itself is a discrimination.
Robert M. Dohrmann: But Mr. Chief Justice, in order to reach that conclusion, one must conclude that it is lawful under Title VII to treat workers, individual workers that this petitioner or any employer subject to the Act as men and as women as statistics, rather than as individual workers. And that practice is impermissible under Title VII and this Court has said so and all Courts beneath it have also said so. It is improper and it is unlawful to treat women as women. Let me give an example.
Warren E. Burger: Is it unlawful for a Life Insurance Company to charge more for women’s annuities than for man?
Robert M. Dohrmann: In the Insurance context, not at all, because the Insurance industry is not regulated by Congress to require that, let me give an example of that if I may. If this employer instead of operating a pension fund had a severance pay trust in which several cents per hour put into a severance pay fund and at the end of the employment, whatever it is that money lump sum is given to the employee. That employee may go to an Insurer whether he would be a male or female and purchase an annuity and at that point in time, having left the employment context maybe the women would pay more for the annuity than the man, maybe not. But, in any event there is no longer the employment context and the practice cannot be judged under Title VII.
Speaker: But you do not challenge the accuracy and separate mortality tables at all namely that if 'x' and 'y' go to buy an annuity, once a man and once a woman, you accept the fact that the Insurance Company or whoever selling the annuity would say, “Well, you as a women have a life expectancy of certain amount and the man has a certain lesser life expectancy and therefore we have to charge you more”, the women. You do not challenge the accuracy of those.
Robert M. Dohrmann: The accuracy of it? No, once you divide men and women as the insurance industry has commonly done, you will find that a women on the average lives longer than male.
Speaker: And if you were selling an annuity to a woman as to distinguish from a man and you could, and you thought that it might cost you more to provide the annuity because the woman has a greater life expectancy, it would probably charge more I suppose or you would go broke.
Robert M. Dohrmann: As an insurer? That is possible yes. However, there is one point that can be made if an individual buys an annuity policy or buys a policy of Life Insurance, that individual can have specifics concerning his age, weight, use of steps such a the counsel mention alcohol and tobacco and the individual profile can be drawn.
Speaker: But you cannot, it is if you do not challenge the accuracy of the life expectancy prediction for women, I take it you most agree than you cannot individualize among the women which ones are going to live long and which are going to die sooner or just like with the men.
Robert M. Dohrmann: Correct. In any group, in any group pension plan, given for example, there are 12,000 employees, there is no way to tell whether men or lives what. What particular employee is going to live long?
Speaker: Then it has to start collecting now to provide the annuity later, you got to make a judgment.
Robert M. Dohrmann: You have to make a judgment, Title VII commands that that judgment be made without respect to the individual sex, race, national origin or religion.
Speaker: Do the IBEW negotiate this contract for the employees?
Robert M. Dohrmann: No, we did not. We, at that time, the union were not the collective bargaining representative of the employees, it had not won bargaining Rights and did not negotiate it.
Speaker: Was this, did any other union or was this just unilaterally.
Robert M. Dohrmann: This is unilaterally adapted by the Department of Water and Power.
Speaker: No, that was not a product at all of collective bargain.
Robert M. Dohrmann: Correct.
Speaker: Do Insurance Company in selling individual annuities consider smoking habit (inaudible)?
Robert M. Dohrmann: Yes they can. They can make a complete medical profile of an individual.
Speaker: The rates there are in accordance with --
Robert M. Dohrmann: I cannot speak for the industry. Although the industry suggests in the American Council Life Insurance Amicus curiae briefed that that is a --.
Warren E. Burger: We could take a judicial notice of the fact that they overrate, up-rate for a certain conditions, overweight being one of them.
Robert M. Dohrmann: That is correct Mr. Chief Justice. In other words, once you can get into the individual posture, where there is a retail sale if you will of an Insurance contract yes, at that point the individual can be judged.
Warren E. Burger: Just as they can refuse if they want for the ground of overweight that reaches impermissible proportions medically. They refuse to insure at all.
Robert M. Dohrmann: The point in this case is that when you are administering a group plan, you cannot individually analyze each employee. It is possible if you wish to, to make an individual analysis is not commonly done. In most plans.
Thurgood Marshall: The difference in between private in public.
Robert M. Dohrmann: Pardon me sir.
Thurgood Marshall: The difference is between Private Insurance Company is in Public insurance Company.
Robert M. Dohrmann: Yes, correct Mr. Mr. Justice Marshall.
Thurgood Marshall: Because as I understand, the Private Insurance Companies are regulated by the state and nobody else.
Robert M. Dohrmann: That is correct.
Thurgood Marshall: And some states they do not even bother to regulate.
Robert M. Dohrmann: This is an uninsured plan, which is not even regulated by the State of California. This employer manages its own uninsured pension plan.
Warren E. Burger: Well, private insurance companies do issue good policies do they not? In which no medical examination is required and they just average out the whole risk over the whole group.
Robert M. Dohrmann: That is correct Mr. Chief Justice.
Thurgood Marshall: That is because Title VII has nothing in the world to do with it.
Robert M. Dohrmann: Well, nonetheless.
Thurgood Marshall: Is that correct?
Robert M. Dohrmann: Not exactly Mr. Justice Marshall, if the policy is being issued to an employer.
Thurgood Marshall: But if it is issued to what (Inaudible).)
Robert M. Dohrmann: To an employer who he has a pension plan which it does not self insure, then in that instance the insurer provides the mechanism for the employer to provide the benefit in turn and that must be on a neutral basis and it is commonly done on a neutral basis. Here, the department contends that it must measure longevity. Assuming it must conceding that longevity is necessary as a measuring right of physical soundness, why does it select sex? Why is that single immutable characteristic chosen rather than the others that we have discussed?
Warren E. Burger: Well that is because for more than a hundred years, the American experience table of mortality and its successors have identified statistically the fact that women outlive men by a substantial number of years.
Robert M. Dohrmann: Mr. Chief Justice, at page 16 of the Amicus brief of the government in this case, you will find that as recently as 1974, it has been identified that black persons in America have greater mortality or earlier mortality than do Caucasians. What I am saying Mr. Chief Justice --.
Warren E. Burger: Then after someday they may take that into account but that is not our case is it?
Robert M. Dohrmann: Our case is sex and if the suggestion is because for 100 years it has been noticed that women live longer than man, my response is that since 1964 or since 1972 when the Act was amended to apply to this public employer, it is no longer lawful to look to that common experience that statistic and apply it in such manner as in this case so that women are given 15% less pay than man because it is assumed that each women because she is a woman, is going to live to some statistical average which is longer than each man.
William H. Rehnquist: But your suggestion that other factors could play a role as they undoubtedly can, this does not mean that it is as simple to classify on the basis of other factors. If you are talking about smoking, drinking, obesity, you are going to have forms to fill up, you are going to have to take the word or reject the word of an applicant. The one thing about a sex classification is that at least until recently it was quite easy to tell a man from a woman.
Robert M. Dohrmann: Mr. Justice Rehnquist, may I say that the Department of Water and Power the City of Los Angeles, is becoming increasingly less, easy to tell if that was between a man and woman because woman who formally worked as clerks and stenographers are now employed pursuant to a preneurship programs as cables splicers, as a lineman, as tower line mechanics, they are entering professions they never before were in. Women, consistent with Title VII and with the affirmative action plan of this department say its pension plan are doing the work that men did solely as men before but now it is common.
William H. Rehnquist: Would you dispute the notion that it has been really easier to make a spot judgment as to whether a person is a man or a woman as opposed the fact whether they are a smoker or non smoker, overweight or underweight or a drinker or non drinker.
Robert M. Dohrmann: Yes, sex is immutable as you say, it cannot be changed.
Speaker: In other way, it cannot be changed but if it is readily identifiable.
Robert M. Dohrmann: It is readily identifiable but why is it identified and then used to penalize the person solely because she is a woman. She receives 15% less than a man in her paycheck and yet her a rent that is the same, her medical bills are the same, her bills at the supermarket are the same.
William H. Rehnquist: Well that may be a very legitimate argument on your part. All I am suggesting is that from the insurance company’s point of view, it maybe a much easier proposition to distinguish on the basis of sex than it is on the basis of individualized answers which it is much more doubtful to come up with the truth about.
Robert M. Dohrmann: Why not pull all risk then Mr. Justice Rehnquist, even as now, every other single risk is being pulled by this plan and a vast majority of plans in America. Why cannot we pull all risks? Why use sex?
Warren E. Burger: It is a matter of choice.
Robert M. Dohrmann: Yes, it is and we present, contend that that choice is unlawful.
Warren E. Burger: We have a contention here of a violation of the statute that perhaps that choice will be made sometime by a society as a whole and by industry. But now we are confronted with proposition that you say, the woman have to pay 15% more, the answer of the men to that is, if they do not pay 15% more then men are required to pay to receive less pay ultimately because they subsidized the women’s annuity.
Robert M. Dohrmann: But who is to say Mr. Chief Justice that each man is going to live to his statistical abstract age? Men die young, men lived longer than the statistics say they are going to live. As a matter of fact, if you will open the brief for the government using the same mortality tables that the Department of Water and Power uses, the 1951 group immunity tables, men and women share common death age, death ages in 86% of the age groups.
William H. Rehnquist: For this is often summary judgment it is not?
Robert M. Dohrmann: That is correct.
William H. Rehnquist: So, that if there is a dispute as to the act is Justice White pointed out a moment ago, If there is a dispute as to the accuracy of the table that something should have been resolved by a trial on the issue of facts.
Robert M. Dohrmann: Well, the accuracy of the tables is not in this in dispute Mr. Chief Justice Rehnquist. I only mentioned it or pointed out to show that if there is any difference in longevity, it occurs at the extremes of retirement age rather than being a persistent distinction among the age groups as they progressed through retirement.
Speaker: When you say extremes or retirement age?
Robert M. Dohrmann: I mean, early deaths of people who die early after let us say, --
Speaker: I would request you to say what is early?
Robert M. Dohrmann: Sixty-five, say between 65 and 70. More men will die in the early retirement ages at age 65 to 70 unmatched by a women’s deaths then in the area in which most people's longevity falls, the middle to late 70s, that 86% congruity that are mentioned occurs and women and men die matched each of the other the same or common death age.
Speaker: But the unmatched women average death is about 88 and unmatched men about 70.0.
Robert M. Dohrmann: No, the figures that are used that were once prepared by TIAA and they are prepared in 5 year increments. They could be done in single year increments and the same result would apply.
Speaker: Mr. Dohrmann.
Robert M. Dohrmann: Yes Mr. Justice.
Potter Stewart: The Chief Justices indicated in a question few moments ago, what we have here is that the issue before us is whether or not the practice of a petitioner violates Title VII of the Civil Rights Act of 1964 as amended in 1972. Nobody, so far as Federal Law goes of course, this would not been a violation on the other part of any employer prior to 1964 would not have been a violation on the part of this employer prior to 1972 for public governmental employers under the statute. It really worked in with a statutory question are we not? You have mentioned the Equal Pay Act and its incorporation in the 1964 statute. I take it we all accept these statistics, these actuarial tables and I am interested in the statutory argument because that is our question.
Robert M. Dohrmann: Mr. Justice Stewart, Section 703(a)(1) on its face, says it discriminates against a person by a reason of sex if her compensation is less than that of a man. In this case as counsel admits, the woman takes home 15% less than does a man. It is deducted from her paycheck, she has no choice whatsoever.
Potter Stewart: How about the impact of the Bennett Amendment and the Equal Pay Act?
Robert M. Dohrmann: This practice could only be safe if the factor used to conduct the 15% from the paycheck is “any other factor other than sex”.
Potter Stewart: Why do they propose to use the used the word others twice in that statute?
Robert M. Dohrmann: Because I think the congress wanted to make it clear and I think the committee reports underscore this is that other factors such as merits systems, seniority systems, lifting weight requirement, those other factors neutral as far as sex is concerned would be employable by an employer in setting a wage rate and other factor other than sex. I adopt what the Court below said in this case, it is playing with words to say that this practice is based on any factor other than sex.So the Bennett Amendment 703(h) is simply not available as a defense in this case.
Potter Stewart: And do you think it is a defense or do you think it is one of the things that plaintiff needs to prove the absence of the factors of the Bennett Amendment?
Robert M. Dohrmann: No, I do not think that it is not the burden of plaintiff to show that Bennett Amendment is not a defense. I think it is an affirmative defense of the employer and the employer has failed to meet it. The employer here has said that it is seeking to determine longevity and it is has decided the sole measure of longevity will be sex.
Speaker: But still the claim is anyway that it is still longevity that distinguishes that -- I suppose if the longevity tables changed, there are let us say, if there were some changes in it, there rates would change?
Robert M. Dohrmann: If longevity changes maybe the tables would change.
Byron R. White: They still claim that the reason they deduct more for the woman is because of the longevity.
Robert M. Dohrmann: You correctly stated earlier Mr. Justice White, the problem is not in the maintenance of such tables. It is when they are used to apply the sole and only cost of longevity to one sex even though it bears only some co-relation to longevity and not a complete one. This is not as counsel would suggest, a situation in which all men cannot have the particular or do not undergo the same particular condition that all women do or all women who are capable of. In this case we have two groups, we have men and we have women. They die at different times but they are charged differently for the privilege of having a retirement income that is the same and the women are the ones that have to pay more for it.
Warren E. Burger: I take it from your statement, you concede that they on the average statistically, will receive the retirement for a longer period.
Robert M. Dohrmann: If there is such a thing as statistical individual, that is statistical individual will get more but there is no such thing in the eyes of the law Mr. Chief Justice in my humble opinion, the law in my opinion requires that they be treated as individuals that these women at Water and Power be treated as individuals and that they receive the same treatment as men, that they not be treated as women and charged something more for the disputable benefit or privilege of being a woman. It just does not follow. In Griggs against Duke Power this Court said, “Individuals are to be tested so that the individual’s capability to do the work assigned is the key that will be in the decisional process of the employer”. Not some statistic, not something outside of your employment relationship, not some casual acquaintanceship with a particular race or sex group and may I underscore, that if the Court of Appeals is not affirmed in this case, that that will leave the door open to the utilization of any other analysis, which goes off on the basis race, national origin or religion.
Speaker: That would not be true of the equal pay if it were reversed on the Equal Pay Act.
Robert M. Dohrmann: The Equal Pay Act would not give them the defense.
Potter Stewart: By dealing with the sex right.
Robert M. Dohrmann: Yes, that only deals with sex.
Potter Stewart: Bennett Amendment.
Robert M. Dohrmann: That is correct Mr. Justice Stewart.
Potter Stewart: And what would you suggest hypothetically might be some these other studies. What might its impact as they -- if the judgment of Court of Appeals was reversed.
Robert M. Dohrmann: Well, as we have pointed out, race.
Potter Stewart: Well, race as my brother Rehnquist has just --
Robert M. Dohrmann: If they have for example a group insurance.
Speaker: The race is not covered by the Bennett Amendment at all.
Robert M. Dohrmann: That is correct. But what I am saying is that in this situation, if sex is permissible under 703(a)(1) as an indicator of longevity. And so also, as any other class which is otherwise protected by 703(a)(1) then, statistics could be used to as we talked earlier, to show that black persons living shorter --
Potter Stewart: Not, it happens you just agreed that that would not be true, if the basis upon which this Court decided the case were 703(h).
Robert M. Dohrmann: Alright, excuse me. If you found that this is based upon a factor other than sex, you are correct, that would be unlimited holding that somehow or rather this is a factor other than sex. And then it would not follow that the other classifications would be --
Potter Stewart: But even in the area of differentiation between the males and females, what further impact would the judgment reverse in the Court of Appeals and the Ninth Circuit have in your submission. I thought that what is you set out to tell us.
Robert M. Dohrmann: Now, the further impact of course is that other cases, there is another practice in which unlike this one the contribution levels are the same but benefits paid out at the end are lower, that is also in our opinion a pernicious practice. It is not our case, we are not here to argue about that practice but we point out that it also would be in severe jeopardy with the Court to reverse the Court Appeals in this case. We would like to point out also that the administrative agencies that have considered this question, that is the Equal Employment Opportunities Commission and the Wage and Hour Administrator of the Department of Labor had both concluded affirmatively and very strongly that this practice, this specific practice of charging women more to get the same benefit as men, violates not only 703(a) of the Title VII but also, also the Equal Pay Act.
Warren E. Burger: When you said same benefit that you have several times conceded I that thought that the ultimate benefit is not the same for women.
Robert M. Dohrmann: No, I did not concede that sir and Mr. Chief Justice; I cannot concede that in --
Warren E. Burger: You said if for a individual woman it may not be but for a women, it is different.
Robert M. Dohrmann: But for women, women cannot be (voice overlap)
Warren E. Burger: Women as a class.
Robert M. Dohrmann: Yes, but we cannot consider woman as a class. This Court has said it many times.
Warren E. Burger: Then your reference should have been to a woman and not to women.
Robert M. Dohrmann: My clients are individual employees of the Department of Water and Power. They, each of them assert their right to be treated as an individual member and an employee to the Department of Water and Power and not as a woman who therefore is a member of a class that has a statistical capacity to live longer than man.
John Paul Stevens: Mr. Dohrmann, I wonder if I had your point correct there. Are you suggesting that if upon retirement, a retired person could sell the annuity that he or she would then be entitled to a Bank or something at its discounted present value? The Bank probably would not pay one price to a man and another price to a woman if I make an individual analysis of the longevity of a particular individual.
Robert M. Dohrmann: Yes, that is correct Mr. Justice Stevens. The gamble then and of course is very precisely or more precisely capable of measurement is how long is that person going to live. If you take your context here, of course they do not know.
Potter Stewart: You start to tell us about the regulations against first, what was the Labor Department regulation?
Robert M. Dohrmann: Labor Department Regulation, Mr. Justice Stewart reported that the 29CFR part 800 and I would specifically direct the attention of the Court to section 800.151, which thoroughly and very expressly condemns this practice.
Potter Stewart: Under the Equal Pay Act?
Robert M. Dohrmann: Under the Equal Pay Act.
Potter Stewart: And it has nothing to do directly with Title VII?
Robert M. Dohrmann: Not directly with Title VII.
Potter Stewart: Because the Labor department does not have jurisdiction to this.
Robert M. Dohrmann: That is correct but the Equal Pay Act can be, the exceptions the Equal Pay Act can be a defense, I point out not only --.
Potter Stewart: Is that the consistent policy from the beginning in the Labor Department under the Equal Pay Act?
Robert M. Dohrmann: Yes it has. There has never been a ruling of the Labor Department on this matter that is inconsistent with them, there is --
Potter Stewart: EEOC under Title VII?
Robert M. Dohrmann: EEOC, I was just going to point out. There is another regulation, 800.116(d), it deals with the employer contributions which could be read as inconsistent with 151. However, the government has pointed out to the Court in this case that 800.116(d) is under reconsideration and therefore, we submit that to the extent it had any applicability and it does not to this case because this case deals with employee contributions, if it had any applicability because, it is under reconsideration and 151 is not, it has lost its power to persuade.
Speaker: When was the first regulation that you mentioned issued by the Labor Department?
Robert M. Dohrmann: The first regulation issued by the Labor Department was 116(d) in 1965 and 151 was issued either in 65 or 66
Potter Stewart: And Equal Pay Act was enacted in what year?
Robert M. Dohrmann: Equal Pay Act was enacted 1963, effective in 1964.
Potter Stewart: Excuse me.
Robert M. Dohrmann: I A beg your pardon sir, Mr. Justice.
Potter Stewart: You proceed, I am curious about EEOC regulations.
Robert M. Dohrmann: Their regulations are reported at Title 29 CFR 1604, are also completely consistent with the position that I have given you today and have never been inconsistent. They have always been a flat prohibition against this kind of practice.
Potter Stewart: And they appear on your brief on what page?
Robert M. Dohrmann: They appear in our brief at page 36.
Potter Stewart: Thank you.
Robert M. Dohrmann: Thirty-six and the following there is the discussion of the EEOC.
Speaker: The regulations have always been.
Robert M. Dohrmann: Yes, the regulations have always been consistent with the position that I have enunciated to the Court.
Byron R. White: But its views have not always been that way.
Robert M. Dohrmann: The Equal Employment Opportunities commission? Yes they have. Mr. Justice White they have, ever since they first took a position on this kind of fringe benefit, they have taken the position that this practice is not allowable.
Speaker: But there is an opinion letter cited in one of the Amicus briefs, from Mr. Duncan.
Robert M. Dohrmann: There is an opinion letter of the general counsel apparently addressed to a private employer.
Speaker: Well this is a general counsel of EEOC.
Robert M. Dohrmann: That he was the general counsel, he was not the commission itself, he was the general counsel.
Speaker: I understand that but he is speaking on behalf of -- purporting to speak and have to have the commission and the opinion is in conflict with.
Robert M. Dohrmann: That expression in that letter is indeed in conflict with the EEOC’s own guidelines. However, the government he has pointed out --
Speaker: But the guidelines were in existence at that time, were they?
Robert M. Dohrmann: No, the guidelines that I am now speaking of did not evolve until 1973.
Speaker: They came out eight years after the enactment of Title VII.
Robert M. Dohrmann: That is correct. And may I point out that however. Mr. Justice White may I point out two quick things. One is, that that letter of the EEOC general counsel came after the EEOC itself in the Fourth Circuit case of Rosen against Public Service Corporation, the EEOC itself issued a letter determining that the practice in Rosen which involved similar practices here as well as mandatory retirement age is based on sex but, financial differences is as well. The EEOC determined in Rosen that that practice violated the Act and that determination, upon which the lawsuit then commenced in Rosen was prior to this one isolated letter written by the general counsel to a private company which was published by a service and if you look at the provision of the federal register that is cited in the government’s brief, you will find that there is an EEOC statement. That letters issued by the general counsel are for the purpose of private advice to particular inquirers and that they do not have the force of President and they are only to gave for the personal use of the individual or company to whom the letter is written.
Warren E. Burger: You mean that applies only to that particular company and to none other?
Robert M. Dohrmann: It is a private reply of the general counsel to a letter or it is a request for a private ruling.
Speaker: Well, the Amicus’s brief says this interpretation remained in effect until April of 72, do you challenge that?
Robert M. Dohrmann: I beg your pardon.
Speaker: The Amicus’s brief says that this interpretation made by the general counsel’s interpretation remained in effect until April of 72.
Robert M. Dohrmann: Most definitely, I challenge it Mr. Justice White. If for no other reason than the commission itself had issued cost determinations in cases as early as Rosen, and the determination in the Rosen case was issued very early in 1965, as you will note from both the district Court and the Circuit opinions discussed in the background of the cases. Mr. Chief Justice, in the time that remains, I would like to point out that 1972, when this Act was amended, the Congress noted that to its dismay, in the years since 1964 when Title VII was enacted, women’s position in employment had not only, not improved, it seemed to have slightly deteriorated. And Congress very clearly enunciated when it made this Act applicable to this employer the discrimination against women is no less serious than any other form of prohibited discrimination and the same degree of social concern applies to it. We presented to you a very clear case in which this employer has taken sex and sex alone, and on the basis of the Act made a very suspect determination that all women are going to live longer than all men. A conclusive presumption that whether my clients, the Tower Line Mechanics or secretaries, they are going to live longer than the males beside whom they perform work for the same price and that is not fair and we ask for affirmance of the Ninth Circuit’s decision.
Speaker: That each of them is going to live long.
Robert M. Dohrmann: That each and every one of them is going to live longer.
Speaker: Mr. Dohrmann, before you sit down, help me in one factual The deduction from the paycheck, how is it? Is it percentage of the paycheck?
Robert M. Dohrmann: Yes, there is the percentage of the pay of the employee.
Speaker: One percentage for men and another percentage for women?
Robert M. Dohrmann: That is correct.
Speaker: And is it, for all men, is it the same percentage?
Robert M. Dohrmann: No, it depends also upon the age of the employee. In other words is if an employee who enters the employment of age 40 then that employee’s contribution level will be a little higher amount out of his pay than it would be had he joined the employment of the department at age 30. The obvious reason is --
Speaker: Is the calculation is the same from then on?
Robert M. Dohrmann: Yes, that the formula then is set, it remains the same through the employment years.
Potter Stewart: Have there been any lawsuits attacking this plan based upon the Federal Law that prohibits discrimination based on age?
Robert M. Dohrmann: No, there has not Mr. Justice Stewart for the reason that as this Court recognized in the McMann against the United Airlines there is an exemption in that Act. Not applicable in Title VII that age or that bona fide pension plans which consider age are lawful and are exempted from the age discrimination.
Potter Stewart: If they predated the statute.
Robert M. Dohrmann: I beg your pardon.
Potter Stewart: If they predated the enactment of statute.
Speaker: If they predated the enactment of the statute as well, and that may not be true anymore under amendment.
Robert M. Dohrmann: That maybe, but it is not my case. Thank you.
Warren E. Burger: Someone else put a question to you and I wanted to see if I can clarify that if, union negotiated with the employer and agreed that we are going to abolish the pension plan that we will increase the pay by the average amount that the pension plan would cost so that men and women on doing the same work would get exactly to the penny the same amount, the same pay. And on the theory that then each was to buy his or her own annuity or fund it in any way they wanted, would you think that would violate the statute?
Robert M. Dohrmann: No I would not, because that is the kind of severance pay plan I referred to earlier.
Warren E. Burger: That the women are going to have to pay more, are they not?
Robert M. Dohrmann: That may be Mr. Chief Justice, it also may not be. Each individual will go out into the Insurance market and maybe able to purchase from competitive insurers based on their own profile, a better price or a different price than each other.
Warren E. Burger: Is there anything that you can point to that supports the idea that women can buy annuities cheaper than men can buy them?
Robert M. Dohrmann: No, but all I know is that once this severance pay has been made then the employee then leaves the employment relationship. And what she does with the money is no longer subject to the provisions of Titles VII and the Civil Rights Act. Thank you Mr. Chief Justice.
David J. Oliphant: Mr. Chief Justice, I would like to address very quickly the administrative agency point first that was made. One of the problems in this case has been the chopping and changing opinions of the EEOC. And it is not true but, 1966 opinion letter of Charles Duncan was the only time the EEOC said that they would follow the practice of unequal contributions to support equal benefits or equal contributions to support unequal benefits, which is what the Department of Labors bulletin 800.151 recognizes. In our brief, in our apply brief at the Court of Appeal level, we referred to a speech that was delivered to the Industrial Relations Research Association on April 16th of 1969. When Sonia Pressman, Senior Attorney of the Office of the General Counsel of the EEOC stated, that commission to date has also followed the equal contributions or equal benefit standards of the Labor Department. Labor Law report of employer, employment practices as new developed since 1969 CCH Paragraph, 8004.
Speaker: How about the annual reports of the EEOC, did they reflect a change in view earlier than that or later than that?
David J. Oliphant: I do not think they reflected a change in view until about 1972. Problem is that the Department of Labor specifically in its guidelines and EEOC at least through its general counsel recognized you have got to --
Speaker: (Inaudible) the general counsel.
David J. Oliphant: That is true.
Speaker: If that has what effect would then be?
David J. Oliphant: I think it is indicative of the way the the commission feels.
Thurgood Marshall: It could have been a purely political speech.
David J. Oliphant: That is true.But it is indicative that at least, --
Thurgood Marshall: Relying on that and if you wanted to rely on it?
David J. Oliphant: No.
Thurgood Marshall: What bothers you then?
David J. Oliphant: To indicate the EEOC has taken different propositions. That its staff has taken positions.
Speaker: A number of the staff that has taken the different position that is all.
David J. Oliphant: More than one member your honor.
Speaker: Well who is the other one?
David J. Oliphant: Well, the first was the general counsel, Robert Duncan.
Speaker: I should not have asked the question.
David J. Oliphant: Charles Duncan.
Speaker: (Inaudible)
David J. Oliphant: Well, the guidelines of the Department of Labor specifically recognized this problem and allowed either or the equal benefits or equal contributions solution. The other guideline of the Department of Labor and it is just that, a guideline, nothing more, an interpreted bulletin 800.151 says, that cost may not be taken into account in determining fringe benefits for males or of females and that particular guideline is plainly contrary to the legislative history of the Act where both houses said that costs of employment of females maybe taken into account. That legislative history is in the back of our opening brief you honor.
Speaker: Mr. Oliphant, could you help me a little more on the perhaps it is in the papers and I missed it, but on the way in which the contribution is made, I understand that there is a larger contribution by the female than by the male. Is there difference, depending on the age of which the employee entered the work under the employment.
David J. Oliphant: That is correct.
Speaker: Now what, which is higher, would you say I came in the 30 and someone else came in the 35, which would make the higher contribution?
David J. Oliphant: The older age would make the higher contribution because there is a less period of time to accumulate sufficient funds to pay for your retirement.
Speaker: But also, there is a less longevity.
David J. Oliphant: No, because you are retiring at 65 either.
Speaker: Some 35 years old has a less or a greater longevity I guess.
David J. Oliphant: From 35 he does but not, that they are all retiring at the same age of 60 or 65.
Speaker: But longevity talks about when they have to die?
David J. Oliphant: Right.
Speaker: And you say the one who comes into the workforce as an older person pays a higher.
David J. Oliphant: A higher contribution.
Speaker: And you are going to pay for fewer years.
David J. Oliphant: Right. No, he is paying for the same retirement. He is going to get the same result but he is only, anybody’s got that fewer years that to.
Speaker: He is going to make payments for fewer years.
David J. Oliphant: Right.
Thurgood Marshall: Mr. Oliphant let me put it in another way. Are all of these other things, decided before the additional amount is prolonged? I mean, the age of the employee et cetera, are all of those put in there before you think that deal?
David J. Oliphant: No, well --.
Speaker: You take into account a whole lot of things.
David J. Oliphant: Right and then.
Thurgood Marshall: You take the deduction in front or at the end?
David J. Oliphant: We take the contribution and the 14.84% was just an average which was figured for purposes of this lawsuit, that longevity is a function of age and sex. And in order to determine that, we would go to the actuarial tables. And from the actuarial tables, it is factored into the contribution rate.
Speaker: Mr. Oliphant, does the record explain how the differing contributions for each year were calculated?
David J. Oliphant: I do not think it does your honor.
Speaker: So, we cannot tell the extent to which the longevity figured as of the age of entering the employment of the company. To what extent age affected the contribution rate?
David J. Oliphant: No your honor because--
Speaker: And the record does not tell us.
David J. Oliphant: The interrogatories may but I do not think they do your honor. This came up on summary judgment and--
Speaker: Who made them? Oh, they made motion?
David J. Oliphant: They made the motion and conceded the accuracy of the actuarial tables in the good faith of the department.
Speaker: The benefits that are calculated are a function of what? Is it at the number of -- Tell me how again. How is the benefit calculated?
David J. Oliphant: Years of service and the retirement age.
Speaker: Not -- your salary level, makes no difference.
David J. Oliphant: And salary level, yes.
Speaker: Is salary average over the period or at retirement age?
David J. Oliphant: No, the last year of the service, the final average salary for the last year of service multiplied by 2% or, it is a little higher now, 2.1% for each year of service.
Speaker: And the contributions are a percentage of salary always?
David J. Oliphant: Yes.
Speaker: And the percentage depends on a, your sex and b, the age in which you have joined the company.
David J. Oliphant: That is correct. I think the important thing to recognize in closing is that, it is not just sex, it is sex plus age longevity and that as in Gilbert is a factor other than sex just as pregnancy was.
Warren E. Burger: Thank you gentleman. The case is submitted.


Earl Warren: Number 326, Lewis Lloyd Anderson, Petitioner, versus Alabama. Mr. Greenberg.
Jack Greenberg: May it please the Court. This case is here under Title 28, U.S.C. 1257 (3), petitioner having asserted in the courts below various rights, privileges and immunities conferred by the Constitution of the United States, particularly the right of petitioner, a Negro clergyman, to be indicted and tried by grand and petit juries from which members of his race were not systematically excluded because of race. Petitioner was indicted for murder in the second degree for an automobile accident. He was convicted of manslaughter in the first degree and received the maximum penalty of 10 years imprisonment. He applied to the -- he appealed to Alabama Court of Appeals, where he raised the jury question. It was passed upon, the conviction was affirmed. He applied to the Supreme Court of Alabama for a writ of certiorari, which was denied and certiorari was granted by this Court. The evidence in the case is succinct and uncontradicted. Dallas County, Alabama in which this crime occurred, according to the 1950 census have preponderantly a Negro population, approximately in the ratio of 8 to 7. I might say that the 1960 census figures are not yet officially available, but an informal inquiry indicates to me that the ratio is now approximately equal with the population being about 6.5 to 6 in favor of white persons. Nevertheless, the -- at all times, the population ratio was approximately 50-50.
Potter Stewart: This is South Alabama, Mr. Greenberg?
Jack Greenberg: This is a county. Yes, it's about two counties West of Montgomery, near the Mississippi border. Despite the large number of Negro citizens, either a majority or very slightly less than the majority, only once in the entire history of the county has a Negro ever served on a grand jury in this county and this was five years ago, before the present Solicitor took office. The Solicitor testified on page 12 of the record and this is the heart of the case, how often are grand juries organized in Dallas County? Answer: twice a year. Question: And you have attended the organization since 1954? The answer is, affirmative. Since that time how many Negroes served on any grand jury in Dallas County? Answer: None. Did any serve on the present grand jury? Answer: They did not. The testimony concerning the one Negro who served a number of years ago was given by a jury member who testified that at time when he was on a jury, he did see a single Negro on a grand jury at that time. Now, the court below held that the jury roll in this case, that is the list of names of prospective jurors, was based upon a foundation laid in the case of Fikes versus Alabama. The jury rolls in Alabama are a continuing document in which names are continuously added and struck, if they become eligible or ineligible. And that in 1953, according to the record in the Fikes case and we see this discussed on page 71 of this record, there were approximately 1500 names on the jury roll of which 250 to 300 were the names of Negroes. That is about one-fifth. Since 1953, names have been added to and dropped from the rolls and according to the testimony of the Chairman of the Jury Commission in this case, the ratio of 1 to 5 has dropped to a ratio of 1 to 12, because the number of Negroes has declined precipitously and this small fraction exists despite the fact that the population was approximately, 50% Negro. There are series of Alabama statutes which appear in the appendix to our brief, which set forth the method by which jurors are to be selected in Dallas County and -- oh, selected in Alabama, including Dallas County. And these statutes Title 30 Code of Alabama 18 states, “That the clerk of the Jury Commission is to obtain the name of every male citizen in the county.” Title 20 says, “The Jury Commission shall meet and so forth and shall make in a well bound book, a role containing the name of every male citizen in the county.” And Section 21 which recites, “Qualifications of persons on the jury roll, refers to the names of all male citizens.” Nevertheless despite the fact that the statute imposes minimum qualifications, it does not even require an ability to read English. It explicitly says, that you need not be able to read English if you are a freehold or a household, you would need a -- need not even be a property owner or merely a householder.
John M. Harlan II: Were there any Negroes on the jury panel in this case?
Jack Greenberg: There were five Negroes on the panel of whom three could not be found. Therefore, actually when the panel appeared in court there were two. None of those served on the jury, the grand jury or the petit jury in this case.
John M. Harlan II: Were they challenged or excused or what?
Jack Greenberg: The best I can say is that -- and the State says this is also, “The record contains innuendo that they were challenged by the State,” but that's not clear.
Potter Stewart: Women do not serve as jurors in Alabama?
Jack Greenberg: Apparently not, apparently not. The Jury Commissioners rather than selecting the name of every qualified male citizen of the County relied upon a system of personal inquiry. And on page 35 to 36 of the record, we find the Chairman's description of how he went about selecting jurors. Well, I go to different parts of the county and know good men and ask them about folks and other Jury Commissioners have done the same thing, a good many I know personally. And he then testified what do you -- where do you get the list from? How do arrive at the names of those you're going to interview? I talked to people, I know citizens, high class folks of various parts of the County and I can go by their recommendations. We try to get good folks is the way we try to do. And though he testified that he introduced Negroes and whites both, when asked for the names of some Negroes in the interview, he said he would decline to give the names, because it might embarrass them. And on page 53 of the record, he testifies to that effect. When he did not know Negroes in a particular precinct he said, he would talk to some good white folks in the County and some here in town. That's on page 53 of the record. The panels in this County consist of approximately 60 to 90 persons. Of -- of those 60 to 90, the number of Negroes has varied from about 2 to 6. And this on -- testimony of the record by an average maximum of seven but I -- the general sense of the record is that 2 to 6 or 2 to 7 and sometimes, some might be found and some not -- might not be found. In this particular case, of the five available Negroes on the panel, three were not found and 60% of them were not found. Over the white persons available, a number also were not found at the exhibits on pages 25 and 26 of the record indicate, but that of course, was a much smaller percentage, nowhere near 60%. It's somewhat in excess of 20% of the white persons were not found.
Charles E. Whittaker: Are you -- are you sure that three were not found?
Jack Greenberg: Well no, I'm sorry. It did not serve. I -- I stand corrected, Your Honor. They -- they were found, but they asked for excuses, I would say.
Charles E. Whittaker: And of the five Negroes on this venire and two were excused for illness, one found in the overage exemption and two remained unfound?
Jack Greenberg: Yes. I'm -- I'm quite sorry. The -- they were excused. It's not that they were not found. They were excused, but I'm sorry I conveyed the -- the question.
Potter Stewart: I don't know the term. I completely understand the mechanics of how this has worked. And this is a rural county in --
Jack Greenberg: Yes.
Potter Stewart: -- South Alabama. The venire consists of approximately how many?
Jack Greenberg: 1800 names.
Potter Stewart: 1800 names?
Jack Greenberg: 1800 -- that's venire I'm sorry, no, the venire is -- in this case, with 68 names. It varies from 60 to 90.
Potter Stewart: The whole entire list is some 1800?
Jack Greenberg: That's correct.
Potter Stewart: The list of eligible jurors and this is kept up as more or less for current list, but there is a turn over on the back --
Jack Greenberg: Right.
Potter Stewart: -- because people die and new people are qualified and added to the list.
Jack Greenberg: That's correct.
Potter Stewart: Then the venire -- is that for a particular lawsuit or is that for a particular term of court or what?
Jack Greenberg: Two -- they or -- for twice a year, they -- they call panels. Twice a year --
Potter Stewart: They call a venire.
Jack Greenberg: Yes, twice a year.
Potter Stewart: And how's that called?
Jack Greenberg: They pull names out of the hat or out of the box.
Potter Stewart: So on the 1800, they pull some 60 or 70 names out of a hat?
Jack Greenberg: Yes -- That's right.
Potter Stewart: And this is for a particular trial -- no, it's -- a term?
Jack Greenberg: No, particular term of the court, yes.
Potter Stewart: And there're two terms of court a year?
Jack Greenberg: That's right. There are sometimes special terms also, but fundamentally two terms.
Potter Stewart: Criminal and civil?
Jack Greenberg: That's right.
Potter Stewart: Does a judge ride circuit or just --
Jack Greenberg: I'm not -- I'm not aware of that. I don't know.
Potter Stewart: Yes.
Jack Greenberg: Yes, he does Mr. Holmes wasn't either --
Potter Stewart: And holds in this County two regular terms and grants --
Jack Greenberg: Yes, sir.
Potter Stewart: -- additional special term that he gets --
Jack Greenberg: That's correct.
Potter Stewart: What age was he due to excuse on the account of age?
Hugo L. Black: What is the age limit?
Jack Greenberg: 21 to 65.
Hugo L. Black: What age were this two were excused on account of age?
Jack Greenberg: I don't believe if the --
Charles E. Whittaker: (Inaudible)
Jack Greenberg: One was excused because of Number 66, young child is I believe, was excused and next to his name is noted, over 65.
Hugo L. Black: It doesn't show his age?
Jack Greenberg: Over 65, that's all it says.
Hugo L. Black: I meant it doesn't show how much over 65.
Jack Greenberg: No, it does not, no. To explain this small number of Negroes on the panel -- that is 1 in 12 on -- in the jury rolls that is 1 in 12 and the fact that none have ever appeared in the grand jury, the State has produced with this one exception. The State has produced evidence that 85% of the persons arrested in the County are Negroes. When the states -- when the sheriff was questioned as to whether that meant that 85% of the Negroes were arrested, he said, “No.” That meant 85% of persons arrested were Negroes, which could mean anywhere from 1% up -- it's completely meaningless statistic, but at any rate, 85% of the persons arrested are Negroes. This included approximately 25% repeaters, approximately 15% to 20% traffic offenses and other petty crimes.
Charles E. Whittaker: Mr. Greenberg, I -- would like to just clear in my mind, I'm confused about it. I understood there were 1800 in the list?
Jack Greenberg: On the roll or in --
Charles E. Whittaker: (Inaudible)
Jack Greenberg: Yes. That's correct.
Charles E. Whittaker: All of which 300 were Negroes.
Jack Greenberg: That was in 1800 in the wheel. In -- there was -- in 1953 there were 1500 of which 300 were Negroes. By the time of this case, the number in the wheel had increased to 1800 of whom one-twelfth were Negroes, which I gather is about 150. In other words the number of Negroes has been decreasing since 1953. That's quite clear. It's going down from a fifth to a twelfth. The roll has increased from 1500 to 1800. The number of Negroes has decreased from a fifth to a twelfth. There's no contradiction about that at all and I don't gather that's challenged at all. No question about that. The Alabama Court of Appeals has held that there was no abuse of discretion in selecting the panels. I'm referring to the Fikes case, which incidentally was in this Court on the jury question among other things, but was reversed on the basis of course, confession. It said that at -- in 1953, there were 1500 on the panel, of whom a fifth were Negroes. It said that the court had evidence of the arrests of that -- of -- there was a -- the judge could take judicial notice of a large number of Negro dependency had before him in criminal trials, although no evidence was offered on this by either side. That petitioner had not shown coercion and that petitioner had not produced the jury rolls themselves in open court. The respondents in this case rest upon these findings of the Alabama Court of Appeals, plus an assertion that the petitioners here assert some sort of right to proportional representation in jury selection. The petitioners assert nothing of this sort. We recognize that proportional representation violates the Constitution as set forth in the Cassell case that it constitutes inclusion as well as exclusion on the basis of race. And petitioners do not assert there is -- and could not assert that there is any right of proportional representation in this case. But the petitioners do contend that in a long and on varying series of cases, when this Court has been confronted with a gross statistical disparity -- not this in the Brown against Allen when he was about 6.7% in the population and this is about -- or 16% in the population about 6.7% on the rolls or in Cassell, 6.7% as against 6.5%. One of these gross disparities of a third and non-ending up on juries, or 50% as in some cases, the Court then says a -- the petitioner has met this burden -- has created a prima facie case and is incumbent upon the State to come forth with some sort of explanation of why this situation exists. Now, the State has in this case come forth -- come forth with an explanation and its explanation consists of we submit, an utterly meaningless statistic, that is 85% of the persons arrested are Negroes with an explicit disclaimer that this means that 85% of the Negroes in the County are arrested. Now, we submit, this does not meet the burden. It does not constitute any meeting of the prima facie case that we have made, that no Negro with one exception six years ago has ever ended up on a grand jury in this County. I believe it was Mr. Justice Frankfurter in whose -- his opinion in the Cassell case, which has reflected the long line of opinions in this area. He said that if one factor is uniformed in a continuing series of events that have brought the past through human intervention, the law would have to have the blindness of indifference, rather than the blindness of impartiality, not to attribute the uniform factor demands purpose. And we submit that certainly that sort of case has been made here and that no evidence has been given to reply. Moreover, we rely on Justice Reed's opinion in the Cassell case, an opinion which was not -- did not support the -- did not constitute the opinion of the Court, but the opinion of the four justices to the effect that when the Jury Commissioners rely upon a system of going out among their personal acquaintances of people that they know in selecting jurors especially in a county where there is a state statute setting forth minimal objective standards of that -- in a situation such as exists in Dallas County, Alabama, this is almost -- almost inevitably results in a gross disproportion such as we have found in this case and we submit that the State has not met the burden of -- of overcoming either of those two propositions.
Earl Warren: We'll recess now, Mr. Greenberg.