(dissenting).
If, except for his sex, plaintiff’s husband had precisely the same job qualifications as plaintiff, he would not have been eligible for employment as her replacement. United’s requirements for employment as a flight cabin attendant simultaneously discriminated against Mr. Sprogis because of his sex and against Mrs. Sprogis because of her sex.
Since there are only two sexes, a reading of § 703(a) (1) of the Civil Rights Act of 19641 which leads to such an anomalous result cannot be correct. In addition, I believe United’s affirmative defenses under §§ 703(e) 2 and 713(b)3 raised issues of fact which precluded entry of summary judgment. Finally, I do not believe either the statute or Rule 23 of the Federal Rules of Civil Procedure authorizes the conversion of an individual claim into a class action after a decision on the merits.
I.
Plaintiff does not claim that United has been guilty of any company-wide discrimination against females. About *120330% of the company’s employees are females and about one-third of the female employees are married.4 It is in the category of stewardesses that United is ac-cussed of discriminating against females because of their sex. The record demonstrates, however, that in this category United’s hiring policies have discriminated in favor of females for many years. Indeed, no male was eligible for the position which plaintiff occupied at the time of her discharge in 1966.
At the end of that year United employed 48 stewards and 3,289 stewardesses. The stewards were employed only on Hawaiian flights, and were required to have job qualifications which plaintiff did not possess.5 6For reasons unrelated to her sex, plaintiff was not eligible for the work performed by these 48 males. On the other hand, solely because of sex, no male was eligible for the position which plaintiff and 3,288 other females occupied in 1966.®
Although the qualifications for the position of male steward were narrowly drawn, stewardesses were one of United’s largest classification of employees. Neither the classification of stewardesses, nor the limited category of male stewards on Hawaiian flights, is challenged under § 703(a) (2). The issues arise under § 703(a) (1) and, in my opinion, would be no different if United had never employed a male steward.7 The Equal Employment Opportunity Commission makes the same objection to the no marriage rule as applied by air lines which employ no male stewards at all as it does in this case.8
Under the Commission’s analysis of the statute, the validity of the no marriage rule turns on the question whether United can justify female sex as a bona fide occupational qualification for the position of stewardess under § 703(e). The Commission withheld any expression of opinion about the no marriage rule for over two years,9 expressly stating in the interim that its opinion would depend on its answer to the BFOQ question.10 All parties have assumed that if United could lawfully limit its employment of flight cabin attendants to females, the no marriage rule would be valid. Thus, under this analysis, the sufficiency of plaintiff’s prima facie case under § 703(a) (1) is made to depend upon the unavail*1204ability of United’s affirmative defense under § 703(e).
As a matter of statutory construction, the Commission’s analysis of the relationship between plaintiff’s prima facie case and the BFOQ defense is untenable. The scope of the defense is not coextensive with the coverage of § 703(a) (l).11 Moreover, as a matter of procedure, plaintiff should not be required to anticipate and disprove a defense which may or may not be available.12 I believe this simple procedural point underlies the Supreme Court’s summary reversal in Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613. The acceptance of job applications from men, but not from women, with preschool age children was plain discrimination because of sex and, therefore, covered by § 703(a) (1); but whether that discrimination could be justified under § 703(e) obviously depended on the evidence to be adduced by the defendant.13 In my opinion, factors pertinent to the availability of the affirmative defense should not be permitted to confuse the analysis of plaintiff’s prima facie case.14
In this case I therefore assume that the question whether a requirement for employment has any job related justification is a matter which, although relevant under § 703(e), is of no significance whatever under § 703(a) (1). The question is simply whether the requirement discriminates against an individual because of his or her “ * * * race, color, religion, sex, or national origin.” 15 The question then is whether United discriminated against plaintiff because of her sex.
When plaintiff’s marriage made her ineligible for continued employment as a stewardess, she was offered, and rejected, an opportunity to remain in United’s employ in an available ground capacity in accordance with her seniority and qualifications.16 Neither plaintiff’s marriage *1205nor her sex disqualified her from employment by United.
The no marriage rule was only one of several requirements for the position of stewardess. Each of the requirements, whether rational or irrational, was an impediment to employment as a stewardess. All of the requirements discriminated against stewardesses as opposed to other females.17 None, however, discriminated against females as opposed to males because no male was eligible for employment in the position of stewardess.
As I read § 703(a) (1), a prima facie case of discrimination is established by showing that a rule has a differential impact on one of the classes of people protected by the Act.18 A simple test for identifying a prima facie case of discrimination because of sex is whether the evidence shows treatment of a person in a manner which but for that person’s sex would be different.19
Under this test, plaintiff was not the victim of discrimination because of sex, whether we assume the relevant classification is all United employees or just flight cabin attendants,20 for she has not shown that if she were a member of the opposite sex she would have had any greater employment opportunities either as a “stewardess” or as a “non-stewardess.” Since the rule which is challenged disqualified all males and only some females from work in the particular job she desired (and since she does not contend that she was disqualified for work in any other position), in my opinion she was not discharged “because of [her] sex” within the meaning of § 703(a) (1).
I do not believe the Commission’s contrary view is entitled to great deference because it is predicated on an untenable analysis of the statute. I have greater deference for Judge Cummings’ analysis, but nevertheless am persuaded that he adopts a test of discrimination that was not intended by Congress.
As I understand the majority’s test, it does not focus on the impact of a rule on the employment opportunities of the members of one sex as opposed to the other; instead, the critical inquiry is whether the rule is an irrational impediment derived from a stereotyped attitude toward females. As a matter of policy, the majority’s view may not only be contemporary but also wise.21 I am unable, *1206however, to find any guidelines in the language of § 703(a) (1) for differentiating between irrational stereotypes and reasonable requirements. Even assuming arguendo that great deference should be accorded to the Equal Employment Opportunity Commission, I do not believe Congress intended to entrust the Commission with authority to draw such lines. In the long run, I believe justice will be served and the objectives of the legislation best accomplished by applying the simple comparative standard suggested by the language of the statute. The benefits of an objective standard will be shared by those enforcing the statute and those faced with problems of compliance.
In my opinion, United did not violate § 703(a) (1) by discharging plaintiff from a position which she could not have retained if she had been a man.
II.
In September, 1965, the Commission issued an opinion that a rule restricting the employment of married females but not males is a prohibited discrimination because of sex. The opinion did not expressly indicate that it was intended to apply to a company or job classification in which all employees were members of the same sex. On behalf of various air lines, including United, the Air Transport Association therefore asked the Commission if its opinion applied to stewardesses. The written response of the Commission’s General Counsel on September 22, 1965, stated, in part:
“A question has arisen whether or not this interpretation applies to airline stewardesses, with respect to whom companies generally require resignation upon marriage and also reassignment within the company or retirement upon attaining the age 32.
“* * * If an airline may give preference to females only as stewardesses, i. e., if sex is a bona fide occupational qualification for the job of airline stewardesses, it would follow that an airline company could impose further qualifications with respect to such jobs and require that an employee be single and under a certain age. These additional qualifications would be consistent with the original qualification that the employee be a woman.
“The Commission has not yet determined whether or not sex is a bona fide occupational qualification for the position of airline stewardess * * *.
“It would be safe, I believe, to answer any inquiries on this point simply by saying that the Chairman’s ruling of September 16th cannot apply to airline stewardesses until the Commission has first resolved the question of bona fide occupational qualification.”
The record raises issues of fact as to whether this document was intended merely as an internal memorandum for the guidance of the Commission’s staff or, as United contends, as an opinion upon which the air lines could safely rely. As I read § 713(b),22 If United in good faith was acting in reliance on this written interpretation, plaintiff may not recover damages or back pay. I am somewhat skeptical about United’s ability to prove sufficient reliance to justify a discharge (as contrasted with a refusal to hire a new employee) while the legal status of the no marriage rule was under review by the Commission, but I believe it made a sufficient factual showing to foreclose the entry of summary judgment.
*1207I also consider it most doubtful that a job related justification for the no marriage rule can be proved. Again, however, it seems to me that the facts disclosed in United’s affidavits entitled it to a hearing on the merits of its § 703 defense.23
III.
A jurisdictional precondition to the commencement of a private action under Title VII of the Civil Rights Act of 1964 is the filing of a charge with the Commission within 90 days after the occurrence of the unlawful employment practice. Choate v. Caterpillar Tractor Company, 402 F.2d 357, 359 (7th Cir. 1968). In Bowe v. Colgate-Palmolive Company, 416 F.2d 711 (7th Cir. 1969) this court read this condition out of the statute for members of a class represented by a plaintiff who had filed the required charge.24 If I read the district court order correctly, the court now holds that even an individual claim eliminates the jurisdictional precondition for all similarly situated persons who might have been represented in a class action. I find no authority in the statute for such an expansion of the right to sue for back pay.
Nor can I find any basis in Rule 23 of the Federal Rules of Civil Procedure for permitting an individual claim to be converted into a class action after a decision on the merits. Rule 23(c) (1) provides :
“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.”
At a minimum, this rule requires the class to be defined before the merits of the case have been decided. This requirement is, of course, of special importance in litigation involving claims for damages or back pay. A procedure which permits' a claim to be treated as a class action if plaintiff wins, but merely as an individual claim if plaintiff loses, is strikingly unfair.25
I respectfully dissent.
. 78 Stat. 255; 42 U.S.C. § 2000e-2(a) (1).
. 78 Stat. 256; 42 U.S.C. § 2000e-2(e).
. 78 Stat. 265; 42 U.S.C. § 2000e-12(b).
. As of May, 1969, United had a total of 14,637 female employees, of whom approximately 4,700 were married. (A. 67).
. A minimum of 10 years residence in the Hawaiian Islands and a familiarity with Hawaiian customs, traditions and tourist attractions. (A. 81)
. Female sex was a qualification for the job of “stewardess” which was the only kind of flight cabin attendant United employed (except on the Hawaiian flights and on certain overseas charter flights for the military).
. They would, however, • be different if United had employed males and females in the same job classification and applied a no marriage rule against females only. Cf., Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613.
. See Neal v. American Air Lines, Case No. 6-6-5759, C.C.H. Employment Practice Guide ¶ 8502, June 20, 1968. In its decision in this case, the Commission stated:
“Even if Respondent did not employ male flight cabin attendants, our Decision would be the same.” (A. 19)
. Plaintiff’s charge was filed on August 9, 1966; the Commission’s decision was dated August 30, 1968.
. The letter of September 22, 1965, signed by the General Counsel to the Commission, stated, in part:
“Subject to a further interpretation of Title VII by the Commission, it would be my opinion that the rule announced by Chairman Roosevelt would not apply to airline stewardesses. If an airline may give preference to females only as stewardesses, i. e., if sex is a bona fide occupational qualification for the job of airline stewardesses, it would follow that an airline company could impose further qualifications with respect to such jobs and require that the employee be single and under a certain age. These additional qualifications would be consistent with the original qualification that the employee be a woman.”
. The largest category of litigation covered by § 703(a) (1) involves charges of discrimination because of race, but the BFOQ defense is not available in such cases.
. “When a proviso like this carves an exception out of the body of a statute or contract, those who set up sucli exception must prove it.” Javierre v. Central Altagracia, 217 U.S. 502, 508, 30 S.Ct. 598, 599, 54 L.Ed. 859.
. “Section 703(a) of the Civil Bights Act of 1964 requires that persons of like qualifications be given employment opportunities irrespective of their sex. The Court of Appeals therefore erred in reading this section as permitting one hiring jtolicy for women and another for men— each having pre-school age children. The existence of such conflicting family obligations, if demonstrably more relevant to job performance for a woman than for a man, could arguably be a basis for distinction under § 703(e), of the Act. But that is a matter of evidence tending to show that the condition in question ‘is a bonda fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.’ The record [before us], however, is not adequate for resolution of these important issues.” 400 U.S. at 544, 91 S.Ct. at 498.
. The early history of the Bobinson Pat-man Act was plagued by confusion between affirmative defenses and the prima facie case. Thus, one of the arguments laid to rest by Mr. Justice Black in Federal Trade Commission v. Morton Salt Co. was the claim that a cost justified price differential was not a “discrimination” within the meaning of the statute. See 334 U.S. 37, 44-45, 68 S.Ct. 822, 92 L.Ed. 1196. See also Standard Oil Co. v. Federal Trade Commission in which the Commission contended that proof of one kind of prima facie case foreclosed the affirmative defense of meeting competition in good faith. 340 U.S. 231, 250-251, 71 S.Ct. 240, 95 L.Ed. 239.
. Of course, a requirement need not discriminate solely because of one of these factors. If, for example, a requirement operates “to disqualify Negroes at a substantially higher rate than white applicants,” it may be discriminatory even if neutral on its face. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158.
. “17. During the time that United’s no-marriage rule was in force and effect, all stewardesses who notified the Company of their intention to marry and whose employment would be terminated by application of the rule were afforded an opportunity, at their request, to remain in the *1205employ of United in some available ground capacity in accordance with their seniority and qualifications. I am informed and believe, on the basis of a statement made by Mary B. Sprogis, that despite her failure to notify the Company of her intention to marry, she did receive and reject such an offer on or about June 19, 1966.” (A. 67) This affidavit is uneon-tradicted; on motion for summary judgment it must be accepted as true.
. Many unmarried females would be disqualified for work as a stewardess by age, size, education, or personality qualifications.
. “First, it should be up to the plaintiff to show that the standard in question does have a differential impact on some class of people protected by the Act. Without such a showing, it is clear the employer should be able to continue to use the standard, whether job-related or not. Moreover, the differential impact should be substantial.” Developments in the Law — -“Employment Discrimination in Title VII of the Civil Rights Act of 1964,” 84 Harv.L.Rev. 1109, 1118.
. “Whether based upon an unsubstantiated stereotype of the sexes, or upon valid factual data on their intrinsic differences, treatment of a person in a manner which but for that person’s sex would be different is a .prima facie unlawful employment practice as defined in section 703 (a).” Op. cit. supra at p. 1170.
See also:
“It is the fact of the person being a mother- — i. e., a woman — not the age of the children, which denies employment opportunity to a woman which is open to a man." (Emphasis added.) Phillips v. Martin Marietta Corp., 416 F.2d 1257 (5th Cir. 1969) dissenting opinion of Judge Brown at p. 1259.
. Viewing the relevant class as United’s married employees, the same standard has been applied for men and women. No married man and no married woman is eligible for employment as a stewardess. Conversely, marriage is not a disqualification for any “non-stewardess” position.
. It may also be unwise. The removal of irrational sterotyped categories within an area of exclusive female employment *1206would increase the supply of eligible female applicants without changing the demand for employees and would thus tend to depress the female wage level.
. “(b) In any action or proceeding based on any alleged unlawful employment practice, no person shall be subject to any liability or punishment for or on account of (1) the commission by sncli person of an unlawful employment practice if he pleads and proves that the act or omission complained of was in good faith, in conformity with, and in reliance on any written interpretation or opinion of the Commission. * * * ”
. “ * * * The rule was founded on the belief that the irregularity and uncertainty inherent in stewardesses’ work schedules were in conflict with the woman’s role in married life and that such a conflict would have an inevitable adverse effect upon her job performance and motivation. This belief, which stemmed from United’s own experience with married stewardesses, has since been confirmed by psychiatrists and marriage counsellors who have studied this question at the request of United and the Air Transport Association (‘ATA’). These experts have concluded and reported to United directly, or through the ATA, that marriage tends to bring about changes in job attitudes which seriously impair their effectiveness as stewardesses. They tend to become preoccupied with their marital responsibilities, less dedicated, less sensitive to the needs of passengers and more resentful toward their jobs. * * * Again, if there are women who are able to adjust their family lives to this type of work schedule as readily as married men, United has discovered no reliable tech-ñique of selecting them out in advance of hiring.
“ * * * One further consideration leading to the adoption and retention of the no-marriage rule has been United’s concern over the increased likelihood of pregnancy which marriage presents. Married stewardesses with unknown or intentionally concealed pregnancies represent dangers to themselves and to their unborn children and a potential source of embarrassment to the Company. Morning sickness and miscarriage due to rough weather exemplify the hazards which United wishes to avoid.” (A. 64-65)
. The holding was supported by Fifth Circuit decisions sustaining claims for equitable relief on behalf of class members who had not filed charges. See Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968); Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th Cir. 1968).
. See Notes of Advisory Committee on Rules accompanying the 1966 revision of Rule 23 of the Federal Rules of Civil Procedure.