Number 13 September 30, 1970

Number 13 September 30, 1970 Mrs. Glendora M. Putnam, Chairman Massachusetts Commission Against ! Discrimination 120 Tremont Street Boston, Massachusetts 02108 Dear Mrs. Putnam: You have requested my opinion regarding the continuing validity of Massachusetts laws regulating the employment of women in light of Title VII of the Civil Rights Act of 1964. You refer particularly to G. L. c. 149, §§ 53-59 and 99-103 and generally to "all other sections which have the effect and regulate the employment of women." Massachusetts has statutes prohibiting women from lifting or carrying objects in excess of forty pounds, G. L. c. 149, § 53A; restricting work- ing hours for women in various types of employment to nine hours daily and forty-eight hours weekly (with certain enumerated exceptions and permissible waivers by the Commissioner of Labor and Industries), G. L. c. 149. § 56-58; and prohibiting, under various conditions, the em- ployment of women at certain hours of the night, G. L. c. 149. § 59. Other provisions particularly referred to in your letter are G. L. c. 149, § 53 (pulleys or casters required for receptacles moved by women); § 54 (core rooms where women are employed); § 55 (employment of women P.D. 12 51 before or after childbirth); § 99 (mealtimes); § 100 (hours of work with- out interval for meal); § 101 (nonapplicability of statutes relating to meal- times and intervals for meals); § 102 (labor during mealtime without knowledge of employer); and, § 103 (seats for employees). That these laws were enacted for the purpose of protecting the health of women does not appear to be in dispute. See, e.g., Broussard v. Melong, 322 Mass. 560, 562. Section 703(a) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2a) provides: "(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 re- spect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, reli- gion, sex, or national origin. (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." Massachusetts law also prohibits discrimination in employment by reason of sex, G. L. c. 151B § 4(1), but specifically excepts the provi- sions in Chapter 149 applicable to women. G. L. c. 15 IB, § 9. The only statutory exception to section 703(a) of Title VII occurs "where religion, sex, or national origin is a bona fide occupational qual- ification reasonably necessary to the normal operation of [the] particular business or enterprise." 42 U.S.C. § 2000e-2e (1964). The Equal Em- ployment Opportunity Commission, which administers the provisions of the Civil Rights Act of 1964, has set forth the following guideline relat- ing to sex as a bona fide occupational qualification: "(1) Many States have enacted laws or promulgated ad- ministrative 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 tech- nology 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, prefer- ' 42 U.S.C. § 2(K)0e(b) defines an employer as a person engaged in interstalc commerce with iwenly-five or more em- ployees for each working day in each of twenty or more calendar weeks of the year. 52 PD'2 ences, and abilities of individual females and tend to dis- criminate 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 con- sidered a defense to an otherwise established unlawful em- ployment practice or as a basis for the application of the bona fide occupational qualification exception." 34 F.R. 13367, § 1604.1(b) (August 19, 1969). Your request for clarification as to the continuing validity of the cited provisions of c. 149 of the General Laws derives urgency from the fact that many employers, beset with the claims of qualified women em- ployees for equal access to job classifications and overtime hours that are blocked by the operafion of certain of those provisions, are caught between the state and Federal laws and stand to violate one by com- pliance with the other. Individual instances of direct conflict between state laws of this kind and the Civil Rights Act of 1964 have been adjudicated in favor of the Federal act. Rosenfeld v. Southern Pacific Co., 293 F. Supp. 1219 (CD. Cal. 1968); Caterpillar Tractor Co. v. Grahiec, 39 U.S.L.W. ^1 5^-^53 (S D. 111. 1970) (state statutes limiting hours and weight-liftmg for "women); Bo\ve v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969) (state statute limifing weight lifting); Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D.C. Ore. 1969) (state regulation hmiting weight lifting.'^ The decisions have centered on the operafion of the Supremacy Clause (Art VI, § 2) of the Consfitufion of the Umted States whereby the state law must yield when its applicafion deprives a citizen of a right to which he is entitled under a law enacted pursuant to the Federal Consfitufion. Gibbons v. Ogden, 22 U.S. (9 Wheat. 1, 210 (1824) ). In these instances, the right denied has been access to a job, job classificafion or other employment privilege protected by the Civil Rights Act of 1964. The finding of such a conflict has necessarily implied a finding that the relevant employment circumstances would not justify applicafion of the bona fide occupafional qualificafion exception. Such a finding has been made by the courts regarding a 35-pound weight lifting limitation (Bowe V Colgate-Palmolive Co., supra, at 715); a job as press operator, occa- sionally requiring lifting as much as 60 pounds (Richards v. Griffith Rubber Mills, supra, n. 3); and, a job as switchman "subject to call out 24 hours a day . . . and sometimes required to work alone during late night hours, including the period from midnight to 6 a.m.^^' (H^jt'^5 v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228, 234 (5th Cir. 1969) ). The court in Weeks held a broad construction of the bona fide occupafional qualificafion to be inconsistent with the purposes of the Federal act, and placed upon the employer the burden of showing that he had reasonable cause to believe that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. 408 F.2d at 235. . ho,- .. co,np,chcns,se Hstinu of |lk1,cu,I .nd c.,..s„„ul,c.,l treatment of state p,otect,^e legislation to date, see Pressman. RcvoUnum „, \l.n„cn\ tjnplovnicnl Ki-Jus. 44 Morula Bar Journal. No. 6. p. 29. P.D. 12 33 Your inquiry requires me to determine whether there is such a prima facie conflict apparent with regard to the provisions of chapter 149. The authorities on conflicts between state and Federal laws define two conditions upon which the state law must yield: (1) if the latter stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress {Hincs v. Davidowitz, 312 U.S. 52, 67) or (2) if it is manifestly evident that Congress intended to preempt the field and bar any state law or regulation of the kind in question (Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230). Because the courts have strictly construed the latter condition, and because the language of the Federal act suggests directly otherwise,-^ I find no Congressional in- tention to bar the states from legislating to protect the health of female employees. However, applying the other standard, it is my opinion that the flat, inflexible restrictions of the Massachusetts statutes upon weight lifting, working hours and night duty for women, without regard to their indi- vidual wishes or abilities,-" stands as a serious obstacle to the accom- plishment of the full purposes of Title VII. Such restrictions, while de- signed to protect women from exploitation in strenuous or heavy indus- try, have the effect of denying women access to certain jobs, classifica- tions and overtime privileges to which they are entitled under the Fed- eral act. 5 Hence no operafion or application whatsoever of G. L. c. 149, § 53A or §§ 56-59 could withstand a challenge based upon that act. The Massachusetts Legislature, in initially providing these restric- tions, assumed, and I think rightfully, that certain women in certain in- dustries required and desired such protection. However, with the pas- sage of the Civil Rights Act of 1964, it is now undeniably clear that such protection cannot be forced upon women who do not require it. Seen from this perspective, the inflexible restrictions of the Massachusetts statutes go beyond their protective purpose and, although unintention- ally and inconsistently with their original purpose, run afoul of Title VII of the 1964 Civil Rights Act. This does not mean that the Common- wealth can no longer legislate in the fashion now in question. However, if it chooses so to legislate, it can do so only to the extent of making the protection of hours, weight, etc. statutes voluntarily available to indi- vidual employees, to invoke or not as the employees see fit. The stat- utes, in other words, must be tailored to the individual, allowing those who wish to work (assuming they are otherwise qualified), and those who wish not to work to be protected in this refusal. ' 42 use 20(K)e-7 ( 1964) Mates: 'Nothing in this title shall be deemed lo exempt or relieve any person from any liabil- ity, duty, penalty, or punishment provided by any present or future law of any State or political subdivision of a State, other than any such law which purports lo require or permit the doing of any act which would be an unlawful em- ployment practice under ihis inlc ," Sec, also 42 U.S.C. 20(X)h-4 (1964). ' It might be observed that in this regard the statute goes beyond its protective purpose, which could presumably be achieved by making the protection which the legislature has seen fit to provide voluntarily available to individual em- ployees and barring only compulsion to work under the prescribed conditions. the emimeraiion of certain exceptions in § .''6 and conditions in § f>9 does not remedy this defect, as women are still excluded from other employment opportunities not falling under the bona fide occupational qualification exception. CI. Ko'.clrU/ ^ . S„. far. Ck. siipni. 29.1 F. Supp. at 1224. 54 P.D. 12 I hasten to add that this result is not true for employers not covered under the Civil Rights Act of 1964 "^ and, hence, outside Federal jurisdic- tion. These employers are obliged to conform with all of the provisions of chapter 149. A different conclusion regarding conflict with Federal law is required concerning the other statutes to which you specifically refer, G. L. c. 149, §§ 53, 54, 55 and 99-103. These provisions decree particular steps to be taken with regard to women employees which do not of themselves deny Federally protected rights. Section 53, for example, requires cas- ters to be provided on receptacles weighing (with contents) over 75 pounds, that are to be moved by women. 1 can see in § 53 no inherent obstacle to the accomplishment of the purposes of the Federal act. See Mines v. Davidowitz, supra, at 67. There is no necessity that employers violate the latter by complying with the former; the required installation of casters need not deny women access to employment rights, privileges or opportunities open to males. Indeed, deferring as I must to the legis- lative determination of a need for such a protective measure, this provi- sion insures such access. In the same manner I find no conflict neces- sary between Federal law and the statutes relating to core rooms {§ 54), childbirth (§ 55), mealtimes (§§ 99-102) and seats (§ 103). While I do not find these latter provisions void on their face, this is not to suggest that a denial of rights clearly protected under the Civil Rights Act could be excused by reason of their affirmative require- ments. An employer could not, for example, refuse to hire women for a job requiring the use of receptacles because state law requires the instal- lation of casters.*^ Your letter also inquires about the validity of other Massachusetts statutes which regulate the employment of women. If you wish to par- ticularize with respect to any other such statutes not dealt with in this opinion, I will be happy to advise you further. Very truly yours, ROBERT H. QUINN Attorney General " See note 1 . supra. ' Under § 54 the Department of I.ahor and Industries is authorized to issue rules regulating the employment of women in foundry core rooms. Such rules as have heen adopted [.\1as\. Bomcl of Lcihoi and Indaslrics. Bill. No. 10 (Feb. 7, 1917) ) do not necessitate a denial of employment rights or opportunities, with one exception. The rule prohibiting lifting cores above a specified size and weight ( I cubic foot or 25 pounds) without an assisting mechanical appliance (/</.. § .^0, para. 1) is an affirmative requirement and therefore does not collide with Federal law. but the rule immediately following (§ -^0. para. 2) prohibits any female, regardless of desire or ability, from working on any core e.xceeding 2 cubic feet or 60 pounds and hence conflicts with the Federal act. " The same theory would apply to a claim that provisions such as sections 5^. 54, 55. and 99-10.1 constitute a denial of Federally protected rights of mole employees by treating women preferentially. On their face alone there is no necessity that compliance with them need deny any such rights as an employer is not required to take the prescribed protective measures only for female employees. This is not to suggest that a male employee would he barred from suing under the Civil Rights Act for equivalent terms and conditions of employment. I intimate no opinion as to whether a Federal court would deem the measures required under such provisions to constitute rights or privileges covered under the Federal act. or as to the effect of the language of 42 U.S.C. § 2000e-7 (see note 2 supra) on such a question. P.D. 12 55