OFFICES AND OFFICERS - STATE - LABOR AND INDUSTRIES - WORKING HOURS AND CONDITIONS FOR WOMEN - CONFLICT BETWEEN FEDERAL AND STATE LAWS

OFFICES AND OFFICERS - STATE - LABOR AND INDUSTRIES - WORKING HOURS AND CONDITIONS FOR WOMEN - CONFLICT BETWEEN FEDERAL AND STATE LAWS

(1) An employer in this state who is governed by Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C., § 2000e 2) may not invoke the provisions of RCW 49.28.070 and WAC 296-128-440 as a justification for refusing to hire or promote women solely on the basis that the working conditions involved in the job they are seeking are such as to preclude the employment of women under such state provisions.

(2) An employer who is governed by Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C., § 2000e 2) is excused from compliance with the provisions of RCW 49.28.070 and WAC 296-128-440 to the extent that these state provisions are in conflict with the federal act.

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                                                                   May 26, 1970

Honorable Frank W. Foley
State Senator, 49th District
3924 Wauna Vista Drive
Vancouver, Washington 98661

                                                                                                                   Cite as:  AGO 1970 No. 9

Dear Sir:

            This is written in response to your request for our opinion on certain questions pertaining to the relationship between existing federal and state laws and regulations in so far as the employment of women is concerned.  We paraphrase your questions as follows:

            (1) May an employer in this state who is governed by Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C., § 2000e 2) invoke the provisions of RCW 49.28.070 and WAC 296-128-440 as a justification for refusing to hire or promote women solely on the basis that the working conditions involved in the job they are seeking are such as to preclude the employment of women under such state provisions?

             [[Orig. Op. Page 2]]

            (2) To the extent that question (1) is answered in the negative by reason of a conflict between the federal act and the state provisions, is an employer who is governed by the federal act excused from compliance with the conflicting state provisions?

            We answer question (1) in the negative and question (2) in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 49.28.070 states, in material part, that:

            "No female shall be employed in any mechanical or mercantile establishment, laundry, hotel, or restaurant for more than eight hours during any day.  The hours of work may be so arranged as to permit the employment of females at any time so that they shall not work more than eight hours during the twenty-four:  Provided, That this section shall not apply to, or affect, females employed in harvesting, packing, curing, canning, or drying any variety of perishable fruit or vegetable, or to females employed in canning fish or shellfish, or to females employed in an administrative, executive or professional capacity: . . ." (Emphasis supplied.)

            In addition to this statute, the conditions of employment for women in the manufacturing industry in this state are subject to the regulation you have cited (WAC 296-128-440).  This regulation as promulgated by the state department of labor and industries provides, in pertinent part, as follows:

            "HOURS

            "(1) The hours of employment of women and minors in the Manufacturing Industry in the State of Washington shall be subject to applicable statutes of the State of Washington (See RCW 49.28.070 which reads in part as follows):

            "'No female shall be employed in any mechanical or mercantile establishment, laundry, hotel or restaurant for more than eight hours during any day.  The hours of work may be so arranged as to permit the employment of females at any time so  [[Orig. Op. Page 3]] that they shall not work more than eight hours during the twenty-four.'

            "(2) Any regular daily shift shall be performed within a period of not more than thirteen hours.

            "(3) No employee shall be required to work in excess of six days in a calendar week.

            "(4) Meal Period.  There shall be a meal period of not less than thirty (30) minutes on the employee's time in every regularly scheduled full-time shift.  No employee shall be required to work more than five (5) consecutive hours without a meal period;provided, that the Supervisor of Women and Minors in Industry may, upon application and good cause shown, authorize a shorter meal period.

            "(5) Relief Period.  There shall be a relief period of ten (10) minutes in every continuous half shift of employment.  This relief period can be given at the option of the employer by general relief or by relief personnel and shall be as nearly as possible in the middle of each half shift.

            "WORKING CONDITIONS

            ". . .

            "(9) Lifting.  No woman or minor shall be required or permitted to lift or carry excessive weights.

            ". . ."1/

             The federal statute, in the light of which these state provisions are to be considered, is to be found in the following portion of Title VII of the Civil Rights Act of 1964 (42 U.S.C., § 2000e 2):2/

             [[Orig. Op. Page 4]]

            "(a) It shall be an unlawful employment practice for an employer -

            "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

            "(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."  (Emphasis supplied.)

            In considering the relationship between these state and federal enactments in terms of the employment policies which must be followed by employers in this state in view of the federal act it is first to be noted that Title VII of the Civil Rights Act of 1964 does not cover all employers.  Section 701 (b) of the federal act3/ defines coverage to include only those employers engaged in interstate commerce with twenty-five or more employees for each working day in each of twenty or more calendar weeks of the year.  Thus, it is clear that those employers in this state who do not meet these two criteria of the federal act must continue to comply in all respects with the applicable state provisions and should continue to abide by those provisions in connection with their employment of women.

            On the other hand, in the case of those employers in this state who are covered by the federal law, it is well established pursuant to the supremacy clause of the United States Constitution4/ that a valid federal statute takes precedence over a state statute in so far as the two are in conflict.  Gibbons v. Ogden, 9 Wheat 1, 22 U.S. 1, 6 L.Ed. 23 (1824); Pennsylvania v. Nelson, 350 U.S. 497, 100 L.Ed. 640, 76 S.Ct. 477 (1956);Cooper v. Aaron, 358 U.S. 1, 3 L.Ed. 2d 5, 78 S.Ct. 1401 (1958).  Therefore, it follows that where a  [[Orig. Op. Page 5]] conflict exists between the federal statute in question and the provisions of our state law, supra, an employer in this state who is governed by the federal act must be regarded as being excused from compliance with the conflicting state provisions.5/   With this proposition (which constitutes our answer to your second question) in mind, we turn to your first question which pertains to the extent of conflict between these provisions and to the resulting impact of the federal act upon those employers in this state who are governed by it in their employment of women.

            Notably, the situation in which those employers in this state now find themselves is by no means unique to the state of Washington.  A majority, if not all, of the states have over the years developed statutes and regulations aimed at the protection of the health and safety of women in the labor force similar to our RCW 49.28.070, supra.

            Thus, with the passage of the 1964 Civil Rights Act and its implementation, many employers across the country have found themselves directly in the line of fire between the new federal law and traditional state laws.  As new jobs and new lines of progression have opened to women, many areas of a typical industrial plant long established as all male preserves have suddenly become no longer inviolate a situation to which reaction has been swift, varied and sometimes unruly.

            In a typical situation, a job poster would go up for an opening never before filled by a woman.  Among other things, the job might require regular overtime, have irregular lunch hours and demand occasional lifting of modestly heavy items.  In response, a woman would apply for the job and then the battle lines would be drawn.  If she was denied the job, she would go to the Equal Employment Opportunity Commission (the administrator of the federal act) and file a complaint.  On the other  [[Orig. Op. Page 6]] hand, if she was awarded the job, the wrath of the male work force would often be incurred and the appropriate state official would soon appear with allegations of a violation of the traditional and long-standing state law or regulation.

            Responding to this kind of situation in 1969, the Equal Opportunity Commission issued a set of regulatory guidelines expressing its position as to the relationship between the new federal law and the various preexisting state provisions.  Section 1604.1, as last amended on August 19, 1969 (34 FR 13367) [[34 F.R. 13367]]provides, in pertinent part, as follows:

            "(b)(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 limits, during certain hours of the night, or for more than a specified number of hours per day or per week.

            "(2) The Commission believes that such State laws and regulations, although originally promulgated for the purpose of protecting females, have ceased to be relevant to our technology or to the expanding role of the female worker in our economy.  The Commission has found that such laws and regulations do not take into account the capacities, preferences, and abilities of individual females and tend to discriminate rather than protect.  Accordingly, the Commission has concluded that such laws and regulations conflict with Title VII of the Civil Rights Act of 1964 and 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."

            The significance of this interpretive regulation is that, from the standpoint of statutory construction, it carries the mantle of an administrative construction of the scope of the federal  [[Orig. Op. Page 7]] enactment which it is the responsibility of the Equal Opportunity Commission to enforce.  See,Dewey v. Reynolds Co., 300 F.Supp. 709, 712, 713 (W.D. Mich., 1969), in which a federal district court expressed this point as follows:

            "Great weight should be given to this regulation, as the Supreme Court emphasized in Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed. 2d 616 (1965):

            "When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with its administration.  'To sustain the Commission's application of this statutory term, we need not find that its construction is the only reasonable one, or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.'  Unemployment Comm'n [of Territory of Alaska] v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136 [145].  See also e.g., Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Universal Battery Co. v. United States, 281 U.S. 580, 583, 50 S.Ct. 422, 74 L.Ed. 1051 [1054].

            "'Particularly is this respect due when the administrative practice at stake involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.'  Power Reactor Co. v. International Union of Electri[cal, etc.], 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed. 2d 924 [932]."

            So far as our research has revealed, the general issue of the extent of conflict between the federal enactment here involved and a state statute was first squarely faced by a court in Rosenfeld v. Southern Pacific Co., 293 F.Supp. 1219  [[Orig. Op. Page 8]] (C.D. Cal. 1968).  There a female job aspirant was refused a position as an agent-telegrapher because the job required hours of work and lifting of weights which would have violated the California labor code.  The court rejected the employer's reliance on the California statute, saying (at p. 1224):

            "The California hours and weights legislation does not create or constitute a bona fide occupational qualification within the meaning of Section 703 (3) of Title VII of the Civil Rights Act of 1964 (42 U.S.C., Section 2000e 2 (a)).

            ". . .

            "The California hours and weights legislation discriminates against women on account of sex.

            "The California hours and weights legislation violates the provision of the Civil Rights Act of 1964.  Accordingly, such legislation is contrary to the Supremacy Clause (Article VI, Clause 2) of the United States Constitution and, therefore, is void, and of no force or effect."  (Emphasis supplied.)

            Several cases have followed Rosenfeld, supra, and have uniformly reached a similar result.  See,Richards v. Griffith Rubber Mills, 300 F.Supp. 338, 340 (D. Or. 1969);Cheatwood v. South Central Bell Telephone and Telegraph Co., 303 F.Supp. 754 (M.D. Ala. 1969); Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969); andBowe v. Colgate Palmolive Co., 416 F.2d 711 (7th Cir. 1969).

            Of particular interest is the recent Richards decision, supra, from our neighboring state of Oregon.  There, the court expressed its view of the matter as follows:

            "Order No. 8 [of the Oregon wage and hour commission] cannot deny Miss Richards her Federal rights.  Under the Supremacy Clause of the Constitution, a Federal statute will prevail over a conflicting state regulation.  Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824).  The particular regulation in this case denies Miss Richards the rights guaranteed her by  [[Orig. Op. Page 9]] the Equal Employment Opportunity Act. Rosenfeld v. Southern Pacific Co., 293 F.Supp. 1219 (C.D. Cal. 1968).  Cf, Longacre v. State, 448 P.2d 832 (Wyo. 1968).

            "Griffith argues that under the Equal Protection Clause the State may constitutionally enforce Order No. 8.  This is correct, Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908), but it is not the issue.  Except in rare and justifiable circumstances, 42 U.S.C. § 2000e 2(e), the law no longer permits either employers or the states to deal with women as a class in relation to employment to their disadvantage.  29 C.F.R. § 1604.1 (a).  Individuals must be judged as individuals and not on the basis of characteristics generally attributed to racial, religious, or sexual groups.  The particular classification in Order No. 8 may be reasonable under the Equal Protection Clause, but it is no longer permitted under the Supremacy Clause and the Equal Employment Opportunity Act. 42 U.S.C. § 2000e 7.

            "When an employer discriminates against a person because of his or her sex, it has the burden of proving that sex is a 'bona fide occupational qualification reasonably necessary to the normal operation' of his business.  42 U.S.C. § 2000e 2 (e).  Weeks v. Southern Bell Tel. Co., 408 F.2d 228 (5th Cir. 1969).  Griffith did not meet this burden.  Its refusal to give Miss Richards one of the two positions open on March 27, 1967, violated 42 U.S.C. § 2000e 2 (a)."

            The critical point of these decisions is this:  In view of the new federal law, the criteria which an employer who is governed by this law may utilize in establishing a job qualification may no longer generalize as to the eligibility of women as a class solely on the basis that the job conditions and requirements are such as to preclude the employment of women under state laws and regulations.  Whether the prospective jobholder can work  [[Orig. Op. Page 10]] extended overtime hours or lift weights in excess of the traditional state standards is to be determined on the basis of each individual job applicant and not on the basis of females generally as a class.  In this regard the court in the Bowe case,supra, said:

            "Accordingly, we hold that Colgate may, if it so desires, retain its 35-pound weight-lifting limit as a general guideline for all of its employees, male and female.  However, it must notify all of its workers that each of them who desires to do so will be afforded a reasonable opportunity to demonstrate his or her ability to perform more strenuous jobs on a regular basis.  Each employee who is able to so demonstrate must be permitted to bid on and fill any position to which hisor her seniority may entitle him or her.  On remand, the court shall study the problem together with the parties and devise and adopt a system which will afford this opportunity to each employee desiring it."  (416 F.2d 711, 718.)  (Emphasis supplied.)

            This does not mean that the classification of a job as a "male job" or a "female job" on a purely generic basis is absolutely precluded by the federal law; however, it does mean that the burden is upon the employer in each case to show that sex is a bona fide occupational qualification and that burden appears to be a strict one.  See,Weeks v. Southern Bell Telephone & Telegraph Co., supra.  And further, in direct answer to your first question it means that an employer who is governed by the federal act may not simply rely on the provisions of RCW 49.28.070 and WAC 296-128-440, supra, as a justification for refusing to hire or promote women solely on the basis that the working conditions involved in the job they are seeking are such as to preclude the employment of women under such state provisions.6/