Appellants
Thelma Bowe et al.
Appellees
Colgate-Palmolive Company and International Chemical Workers Union, Local #15
Appellants' Claim
That companies do not have the right to segregate jobs on the basis of genderby limiting women to less strenuous jobs.
Chief Lawyer for Appellants
Marion W. Garnett
Chief Lawyer for Appellees
Herbert L. Segal
Judges
Walter J. Cummings, Otto Kerner, Henry S. Wise
Place
Chicago, Illinois
Date of Decision
26 September 1969
Decision
Companies may not use job classification systems that discriminate on the basis of gender. If a weight-lifting limit is used as a general guideline, it must apply to both men and women--providing employees the opportunity to demonstrate their suitability for physically demanding jobs on an individual basis.
Significance
Many jobs that had been for men only were made available for women--so long as they could meet the physical requirements. The bona fide occupational qualification exception to Title VII--permitting discrimination where it is reasonably necessary to the job--therefore would no longer be used to exclude womenfrom most job opportunities.
The passage of Title VII of the 1964 Civil Rights Act raised the hopes of millions of American women who believed they would now receive fair treatment inthe workplace. The law makes it "an unlawful employment practice for any employer . . . 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." It took effect in July of 1965.
However, the legal battles that accompanied the enforcement of this legislation unearthed sexism unchanged by law. This sexism--sometimes remnants of earlier protective legislation for women--was no longer a legal excuse to excludewomen from the work place. Still women had to sue to combat sex discrimination and workplace restrictions.
The experiences of Thelma Bowe, an employee of the Colgate-Palmolive plant inJeffersonville, Indiana, illustrated the challenges that women continued toface in combating sex discrimination that persisted even after the Civil Rights Act.
Protective Legislation
Colgate, like many companies, had placed a weight limit on items female employees might be required to lift. Such restrictions on women could also includemaximum hours rules and prohibitions on nighttime work. These regulations were mostly products of the Progressive Era, which lasted from 1900 to World War I. The women's groups and unions who had promoted these laws had benevolentmotives. Unfortunately, like most protective laws, this legislation had proven to be a liability to women.
The Colgate company's weight-lifting limit for women originated with World War II and the company's first large-scale influx of women workers as replacements for men away in military service. Jobs were specifically fashioned for these women. The work was less physically demanding and did not require the lifting of more than 25 pounds.
As the servicemen returned, however, the company and the union continued to set aside less strenuous jobs for women--reserving jobs requiring more physical stamina for men. But by the second wave of feminism in the 1960s, almost all women's groups were unequivocally opposed to these laws and rules, describing them as paternalistic and instrumental in limiting women's job opportunities--not to mention resulting in lower pay.
Gender Segregation
The Colgate company had also maintained separate seniority systems for men and women. The seniority ranking affected not only an employee's ability to obtain much sought-after assignments, but also layoffs. Women were let go beforemen with less seniority and called back to work the same way. This segregation continued even after the company had made minor changes and relabeled thepractices to appear more gender-neutral.
Bowe was one victim of this discrimination. She, along with other female coworkers, filed charges with the Equal Employment Opportunity Commission (EEOC).However, they could not obtain an agreement from Colgate. Therefore, the women brought a class-action lawsuit against the company, heard by the U.S. District Court for the Southern District of Indiana on 30 June 1967. Colgate eventually made reconciliation attempts and recalled laid-off plaintiffs after astrike, yet the suit continued over the issue of back pay and the sex-segregation system.
The First Round
The district court refused to equate racial and sex-based discrimination, andendorsed the idea that the bona fide occupational qualification exception does not have to be based on what is absolutely necessary, but rather what is "reasonably necessary." By emphasizing the word "reasonably" and choosing to interpret it to mean that some options are left open for employers, the courtfound in favor of Colgate's establishment of the weight-lifting limit.
Since the genesis of the weight-lifting restriction was the well-being of female employees, the court declared that Colgate had acted reasonably because it had studied various state weight-lifting regulations before arriving at itsown precise limit (rather than determining it in an arbitrary fashion). Furthermore, the court said, it would be impractical to determine weight-liftingability on an individual basis.
The court's decisions were also fueled by the EEOC's own position at the time: Some protective laws could conceivably be reasonable and therefore should not be overturned. Protective laws--and more discretion for the employer--demanded the adoption of a "common sense" approach, allowing a degree of discretion in hiring even under Title VII.
Appeals Court Overrules
Two years later, the U.S. District Court of Appeals for the Seventh Circuit,heard the case in Chicago. On 26 September 1969, the judges reversed most ofthe lower court's decision. It found that, although a defendant would have todefend himself or herself twice, it was necessary to allow plaintiffs to pursue remedies through both the courts and through arbitration, because each channel might offer different remedies. However, remedies should only be enacted at the end of the entire process so that there was no duplication, which would be unfair to a defendant.
Although the appeals court found the district court's approach to be "carefully reasoned and conscientious," it also concluded that the decision was basedon a misunderstanding of the purpose of Title VII. Just because state protective laws could stand as long as they did not conflict with Title VII, the district court could not conclude that those same laws were not affected by Title VII.
The EEOC's position at the time--that Congress did not mean to overturn all protective laws--was taken out of context by the lower court. The EEOC's limited interpretation of the bona fide occupational qualification exception did not allow the labeling of jobs as "male" or "female," since labeling would exclude men or women from many job opportunities.
The appeals court emphasized that the practice of creating seniority systemsthat segregate "light" and "heavy" jobs may not be used if they merely disguise gender classifications or make it more difficult for men or women to advance into positions for which they normally would be suitable. The court pointed to three cases coming before Bowe in which the EEOC had favored individual testing of weight-lifting ability, rather than weight-lifting limits based on sex.
The court also ruled that since there was a lack of agreement about preciselyhow much weight women can lift from state to state, and since many of thoselimits were too old to be relevant to the physical condition of contemporarywomen, weight-lifting ability should be tested individually. The conditions of work and the manner in which weight-lifting should be performed should alsobe taken into account.
Colgate could maintain its current 35-pound weight-lifting limit only as it applied to both men and women. Colgate was required to give notice to all employees that they would be regularly granted opportunities to prove their suitability for more physically demanding jobs. Employees who have this capacity must be allowed to pursue any position and be paid appropriately for their level of seniority.
Regarding the other issues, on 28 November 1973, the U.S. Court of Appeals for the Seventh Circuit, sent the case back to the district court to create a system in which seniority and other disputes were handled fairly. The court extended the right to get back pay to additional plaintiffs. It granted the right to sue for back pay even to plaintiffs who had not filed a charge with theEEOC and instructed Colgate to notify employees that this opportunity was available. Title VII suits must, by definition, be class-action suits because they were based on a quality shared by a class of people.
Echoing the views of other courts on Title VII suits and on racial discrimination cases, the court found that Title VII suits were meant to advance publicpolicy endorsed by Congress. The intent of Congress was not just to change adefendant's behavior, but for other types of redress (such as back pay), aswell. The goal of Title VII was clearly to end discrimination and to compensate its victims. The most efficient way of achieving this result would be through class-action suits.
Impact
The Bowe case was an early victory for the feminist movement. Discrimination on the basis of sex was subsequently challenged in the area of inheritance law in Reed v. Reed (1971); military regulations in Frontierov. Richardson (1973) and Rostker v. Goldberg (1981); and equalityin education in Mississippi University for Women v. Hogan (1982). Eachof these cases challenged gender stereotypes which were codified in legislative statutes such as the one which enabled Colgate to place weight limits onitems female employees could be required to carry. Such cases represent considerable progress in the area of sex discrimination, particularly when we consider that in cases such as Bradwell v. Illinois (1873), the Supreme Court upheld a state action denying women the right to practice law. Despite the legal progress made with respect to gender discrimination, it is clear thatsocial traditions have precedents on the matter.
Related Cases
Bona Fide Occupational Qualification
The term bona fide occupation qualification (BFOQ) usually arises in reference to situations involving age discrimination, though it is possible for the notion of a BFOQ to be used in gender-discrimination lawsuits as well. A BFOQis, as its name suggests, an essential requirement for performing a given job.
To use an extraordinary example, a prospective astronaut would need to be physically fit in all regards, including 20/20 vision, and should possess a great deal of mental and physical poise. These are all BFOQs, and persons with nervous conditions, bad eyesight, poor sense of balance, a handicap of any kind, or other such challenges need not apply.
But being a male is by no means a BFOQ for the job of astronaut, as Sally Ride proved when she became the first American woman to go into space in 1983. Nor is age a clear BFOQ, as shown by 77-year-old Senator (and former astronaut) John Glenn when he returned to outer space in 1998.
Sources
West's Encyclopedia of American Law, Vol. 2. St. Paul, MN: West Group,1998.
Thelma Bowe et al.
Appellees
Colgate-Palmolive Company and International Chemical Workers Union, Local #15
Appellants' Claim
That companies do not have the right to segregate jobs on the basis of genderby limiting women to less strenuous jobs.
Chief Lawyer for Appellants
Marion W. Garnett
Chief Lawyer for Appellees
Herbert L. Segal
Judges
Walter J. Cummings, Otto Kerner, Henry S. Wise
Place
Chicago, Illinois
Date of Decision
26 September 1969
Decision
Companies may not use job classification systems that discriminate on the basis of gender. If a weight-lifting limit is used as a general guideline, it must apply to both men and women--providing employees the opportunity to demonstrate their suitability for physically demanding jobs on an individual basis.
Significance
Many jobs that had been for men only were made available for women--so long as they could meet the physical requirements. The bona fide occupational qualification exception to Title VII--permitting discrimination where it is reasonably necessary to the job--therefore would no longer be used to exclude womenfrom most job opportunities.
The passage of Title VII of the 1964 Civil Rights Act raised the hopes of millions of American women who believed they would now receive fair treatment inthe workplace. The law makes it "an unlawful employment practice for any employer . . . 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." It took effect in July of 1965.
However, the legal battles that accompanied the enforcement of this legislation unearthed sexism unchanged by law. This sexism--sometimes remnants of earlier protective legislation for women--was no longer a legal excuse to excludewomen from the work place. Still women had to sue to combat sex discrimination and workplace restrictions.
The experiences of Thelma Bowe, an employee of the Colgate-Palmolive plant inJeffersonville, Indiana, illustrated the challenges that women continued toface in combating sex discrimination that persisted even after the Civil Rights Act.
Protective Legislation
Colgate, like many companies, had placed a weight limit on items female employees might be required to lift. Such restrictions on women could also includemaximum hours rules and prohibitions on nighttime work. These regulations were mostly products of the Progressive Era, which lasted from 1900 to World War I. The women's groups and unions who had promoted these laws had benevolentmotives. Unfortunately, like most protective laws, this legislation had proven to be a liability to women.
The Colgate company's weight-lifting limit for women originated with World War II and the company's first large-scale influx of women workers as replacements for men away in military service. Jobs were specifically fashioned for these women. The work was less physically demanding and did not require the lifting of more than 25 pounds.
As the servicemen returned, however, the company and the union continued to set aside less strenuous jobs for women--reserving jobs requiring more physical stamina for men. But by the second wave of feminism in the 1960s, almost all women's groups were unequivocally opposed to these laws and rules, describing them as paternalistic and instrumental in limiting women's job opportunities--not to mention resulting in lower pay.
Gender Segregation
The Colgate company had also maintained separate seniority systems for men and women. The seniority ranking affected not only an employee's ability to obtain much sought-after assignments, but also layoffs. Women were let go beforemen with less seniority and called back to work the same way. This segregation continued even after the company had made minor changes and relabeled thepractices to appear more gender-neutral.
Bowe was one victim of this discrimination. She, along with other female coworkers, filed charges with the Equal Employment Opportunity Commission (EEOC).However, they could not obtain an agreement from Colgate. Therefore, the women brought a class-action lawsuit against the company, heard by the U.S. District Court for the Southern District of Indiana on 30 June 1967. Colgate eventually made reconciliation attempts and recalled laid-off plaintiffs after astrike, yet the suit continued over the issue of back pay and the sex-segregation system.
The First Round
The district court refused to equate racial and sex-based discrimination, andendorsed the idea that the bona fide occupational qualification exception does not have to be based on what is absolutely necessary, but rather what is "reasonably necessary." By emphasizing the word "reasonably" and choosing to interpret it to mean that some options are left open for employers, the courtfound in favor of Colgate's establishment of the weight-lifting limit.
Since the genesis of the weight-lifting restriction was the well-being of female employees, the court declared that Colgate had acted reasonably because it had studied various state weight-lifting regulations before arriving at itsown precise limit (rather than determining it in an arbitrary fashion). Furthermore, the court said, it would be impractical to determine weight-liftingability on an individual basis.
The court's decisions were also fueled by the EEOC's own position at the time: Some protective laws could conceivably be reasonable and therefore should not be overturned. Protective laws--and more discretion for the employer--demanded the adoption of a "common sense" approach, allowing a degree of discretion in hiring even under Title VII.
Appeals Court Overrules
Two years later, the U.S. District Court of Appeals for the Seventh Circuit,heard the case in Chicago. On 26 September 1969, the judges reversed most ofthe lower court's decision. It found that, although a defendant would have todefend himself or herself twice, it was necessary to allow plaintiffs to pursue remedies through both the courts and through arbitration, because each channel might offer different remedies. However, remedies should only be enacted at the end of the entire process so that there was no duplication, which would be unfair to a defendant.
Although the appeals court found the district court's approach to be "carefully reasoned and conscientious," it also concluded that the decision was basedon a misunderstanding of the purpose of Title VII. Just because state protective laws could stand as long as they did not conflict with Title VII, the district court could not conclude that those same laws were not affected by Title VII.
The EEOC's position at the time--that Congress did not mean to overturn all protective laws--was taken out of context by the lower court. The EEOC's limited interpretation of the bona fide occupational qualification exception did not allow the labeling of jobs as "male" or "female," since labeling would exclude men or women from many job opportunities.
The appeals court emphasized that the practice of creating seniority systemsthat segregate "light" and "heavy" jobs may not be used if they merely disguise gender classifications or make it more difficult for men or women to advance into positions for which they normally would be suitable. The court pointed to three cases coming before Bowe in which the EEOC had favored individual testing of weight-lifting ability, rather than weight-lifting limits based on sex.
The court also ruled that since there was a lack of agreement about preciselyhow much weight women can lift from state to state, and since many of thoselimits were too old to be relevant to the physical condition of contemporarywomen, weight-lifting ability should be tested individually. The conditions of work and the manner in which weight-lifting should be performed should alsobe taken into account.
Colgate could maintain its current 35-pound weight-lifting limit only as it applied to both men and women. Colgate was required to give notice to all employees that they would be regularly granted opportunities to prove their suitability for more physically demanding jobs. Employees who have this capacity must be allowed to pursue any position and be paid appropriately for their level of seniority.
Regarding the other issues, on 28 November 1973, the U.S. Court of Appeals for the Seventh Circuit, sent the case back to the district court to create a system in which seniority and other disputes were handled fairly. The court extended the right to get back pay to additional plaintiffs. It granted the right to sue for back pay even to plaintiffs who had not filed a charge with theEEOC and instructed Colgate to notify employees that this opportunity was available. Title VII suits must, by definition, be class-action suits because they were based on a quality shared by a class of people.
Echoing the views of other courts on Title VII suits and on racial discrimination cases, the court found that Title VII suits were meant to advance publicpolicy endorsed by Congress. The intent of Congress was not just to change adefendant's behavior, but for other types of redress (such as back pay), aswell. The goal of Title VII was clearly to end discrimination and to compensate its victims. The most efficient way of achieving this result would be through class-action suits.
Impact
The Bowe case was an early victory for the feminist movement. Discrimination on the basis of sex was subsequently challenged in the area of inheritance law in Reed v. Reed (1971); military regulations in Frontierov. Richardson (1973) and Rostker v. Goldberg (1981); and equalityin education in Mississippi University for Women v. Hogan (1982). Eachof these cases challenged gender stereotypes which were codified in legislative statutes such as the one which enabled Colgate to place weight limits onitems female employees could be required to carry. Such cases represent considerable progress in the area of sex discrimination, particularly when we consider that in cases such as Bradwell v. Illinois (1873), the Supreme Court upheld a state action denying women the right to practice law. Despite the legal progress made with respect to gender discrimination, it is clear thatsocial traditions have precedents on the matter.
Related Cases
- Adkins v. Children's Hospital, 261 U.S. 525 (1923).
Bona Fide Occupational Qualification
The term bona fide occupation qualification (BFOQ) usually arises in reference to situations involving age discrimination, though it is possible for the notion of a BFOQ to be used in gender-discrimination lawsuits as well. A BFOQis, as its name suggests, an essential requirement for performing a given job.
To use an extraordinary example, a prospective astronaut would need to be physically fit in all regards, including 20/20 vision, and should possess a great deal of mental and physical poise. These are all BFOQs, and persons with nervous conditions, bad eyesight, poor sense of balance, a handicap of any kind, or other such challenges need not apply.
But being a male is by no means a BFOQ for the job of astronaut, as Sally Ride proved when she became the first American woman to go into space in 1983. Nor is age a clear BFOQ, as shown by 77-year-old Senator (and former astronaut) John Glenn when he returned to outer space in 1998.
Sources
West's Encyclopedia of American Law, Vol. 2. St. Paul, MN: West Group,1998.
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