THE AITORNEY GENERAL
OP rl%xKAs
AUSTIN. T-s 78711
March 11, 1974
The Honorable Jackie W. St. Clair Opinion No. H- 254
Commissioner
Bureau of Labor Statistics Re: Whether Article 5172a,
Capitol Station Vernon’s Texas Civil Statutes,
Austin, Texas 78711 a female protective act, conflicts
with Title VII of the Civil Rights
The Honorable Henry Rothell Act of 1964 (42.,USC $ ZOOOe-2)
Administrator
Texas Employment Commission
Austin, Texas 78778
Gentlemen:
You have asked whetherArticle~5172a. Vernon’s Texas Civil Statutes, is
void due to an apparent conflict with portions of Title VII of the.Civil Rights Act
of 1964, codified as 42 USC 8 ZOOOe-2.
Prior to its amendment in 1971. Article 5172a. V. T. C. S. , provided,in its $1:
“No female shall.be employed in any factory, mine;
mill, . . . or enterprise where females are employed,
for more than nine (9) hours in any one calendar day,
nor more than fifty-four (54) hours in any one calendar
week. ”
Other sections of the Article contained exceptions.
As you have noted in your letter to us, the validity of the statute was chal-
lenged in a class suit filed in the United States District Court which entered its
order on May 21, 1971, holding that it was:
“ORDERED that Article 5172a, Vernon’s Ann. Civ. St.
of Texas be, and it is hereby, declared to be in conflict
with Title VII, Section 703(a) of the Civil Rights Act of
1964. 42 U.S. C. A. 5 ZOOOe-2(a) and therefore void under
the Supremacy Clause of Article VI of the United States
Constitution;. . . ”
In the meantime a bill was introduced in the 62nd Legislature to amend $1
of Article 5172a so that it would have read, in part:
p. 1185
The Honorable Jackie W. St. Clair (H-254)
The Honorable Henry. Rothell.
Page 2
“No person employed in any factory, mine, mill,
. . . or other business enterprise, shall be required
by their employer to work in excess of nine hours
in any one calendar day, nor more than 54 hours in any
one calendar week, without the express consent of the
affected employee. ” (emphasis added)
This bill was amended and adopted on May 20, 1971 (Acts 1971, 62nd Leg.,
ch. 473, p. 1671, effective August 30, 1971) and now provides in its $1:
“No female employed in any factory, mine, mill,
. . or other business enterprise, shall be required
by -her employer to work in excess of nine (9) hours
in any twenty-four (24) hour day, nor more than fifty-
four (54) hours in any one calendar week, without the
consent of the affected employee. ” (emphasis added)
In an order entered August 14, 1971, the Federal Court declined to pass
upon the amended statute and, to our knowledge, no other court has determined
the question.
Title VII of the Civil Rights Act of 1964, which generally applies to
employers having 25 or more.employees, provides in part at 42 U. S. C.
5 ZOOOe-2:
“(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
or applicants for employment 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. ”
The act permits discrimination where sex is~ a bona fide occupational
qualification; howeven that exception is to be construed very narrowly. Weeks
v. Southern Bell Telephone & Telegraph Co., 408 F. 2d 228 (5th Cir. 1969).
p. 1186
The Honorable Jackie W. St. Clair, (H-254)
The Honorable Henry Rothell,
Page 3
The Equal Employment Opportunity Commission~(hereafter EEDC) has
promulgated regulations under the federal statute. These provide in part,
at 29 C. F. R. 5 1604.2:
l’(b) Effect of sex-oriented State employ-
ment legislation.
“(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 employ-
ment of females in certain occupations, in jobs
requiring the lifting or carrying ,of weights
exceeding certain prescribed limita; during
certain hours of the night, for more than a
specified number of hours per day or per week,
and for certain periods of time before Andyafter
childbirth. The Commission has found that
such laws and regulations do not take into
account the capacities, preferences, and.
abilities of individual females and, therefore,
discriminate on the basis of sex. The Com-
mission has concluded that such laws and
regulations conflict with and are superseded
by title VII of the Civil Rights Act of 1964
Accordingly, such laws 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.
11. . .
“(3) A number of States require that
minimum wage and premium pay for overtime
be provided for female employees. An employer
will be deemed to have engaged in an unlawful
employment practice if:
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The Honorable Jackie W. St. Clair, (H-254)
The Honorable Henry Rothell,
Page 4
“(i) It refuses to hire or otherwise
adversely affects the employment opportunities
of female applicants or employees in order
to avoid the payment of minimum wages or
overtime pay required by State law; or
“(,ii) It does not provide the same
benefits for male employees.
“(4) As to other kinds of sex-oriented
State employment laws, such as those requir-
ing special rest and meal periods of physical
facilities for women, provision of these benefits
to one sex only will be a violation of title VII.
An employer will be deemed to have engaged
in an unlawful employment practice if:
“(i) It refuses to hire or otherwise
adversely affects the employment opportunities
of female applicants or employees in order
to avoid the provision of such benefits; or
“(ii) It does not provide the same
benefits for male employees. If the employer
can prove that business necessity precludes
providing these benefits to both men and
women, then the State law is in conflict with
and superseded by title VII as to this employer.
In this situation, the employer shall not provide
such benefits to members of. either sex. ”
(emphasis added)
The EEOC administrative interpretation of the Act is entitled to great
deference. Griggs v. Duke Power Co., 401 U.S. 424 (1971); Hays v. Potlatch
Forests, Inc., 465 F. 2d 1081 (8th Cir. 1972). Pursuant to these and earlier
guide lines the EEOC has consistently found state protective laws to be invalid.
See cases collected iln CCH EEOC Decisions.
p. 1188
The Honorable Jackie W. St. Clair, (H&254)
The Honorable Henry Rothell,
Page 5
The problem posed by the coexistence of Article 5172a and the Civil
Rights Act requirements is stated by Mr. Rothell’s letter as fol1ow.s:
“It is apparent that Texas employers cannot
comply with both the Civil Rights Act of 1964,
on the one hand, and Article 5172a, on the other
hand, in modifying their work schedules in this
manner. It is also quite apparent that it is
unfair to penalize. these employers for complying
with Federal legislation in those cases when
female employees choose to quit or to be dis-
charged because of their refusal to comply with
the new work schedules.
“Therefore~, the Commission respectfully requests
your opinion on the validity of Article 5172a,
Vernon’s Texas Civil Statutes, as amended in
1971, and on the effect of its apparent conflict
with the prohibitions contained in the Civil
Rights Act of 1964. ”
Despite the ‘legislative efforts to eliminate conflicts between the two
laws, it is our opinion that Article 5172a still has a discriminatory effect.
Men are denied the benefits accorded women in relation to the right to
refuse to work beyond certain hours and to the entitlement to overtime.
Clearlv._ the sex discrimination attacked by the Civil Rights Act is not limited
to discrimination against women. Diaz v. -Pan American World Airways, Inc.,
442 F. 2d 385 (5th Cir. 1971), cert. denied, 404 U. S. 950 (1971). EEOC guide-
lines take. note of the fact that a law of this type does “not take into account the
canacities. preferences, and abilities of individual females. ” 29 CFR $1604. 2
(bj(1). See also, Hays v. Potlatch Forests, supra. Homemakers, Inc., Los
Angeles, v. Division of Inxtrial Welfare, 356 F. Supp. 1111 (N. D. Calif.
1973), CCH EEOC Decisions (1973) lp6348 (Feb. 18, 1972). And see Art. 1
Sec. 3(a) of the Texas Constitution.
The effect
of a determination that a state. law relating to
employment isdiscrimina,tory has been the subject of some dispute. Although
there are decisions holding that employers would be required to extend the
p. 1189
The Honorable Jackie W. St. Clair, (H-254)
The Honorable Henry Rothell,
Page 6
benefits required to be given to members of the favored sex to members of
the’other sex, [Hays v: Potlatch Forests, supra; Potlatch Forests, Inc. v.
Hays, 318 F. Supp. 1368 (E. D. Ark. 1970); CCH EEOC Decisions (1973)
P 6348 (Feb. 18, 1972)], the majority rule appears to be to declare the state
law invalid because of its conflict with the federal statute and to refuse to
extend state statutory protections to the members of both sexes. Homemakers,
Inc. v. Division of Industrial Welfare, supra; Burns v. Rohr Corp., 346 F.
Supp. 994 (S. D. Cal. 1972); Caterpillar Tractor Co. v. Grabiec, 317 F. Supp.
1304 (S. D. nl. 1970).
It is our opinion that the hours and overtime provisions of Article 5172a
are in conflict with Title VII of the Civil Rights Act of 1964. Although the
state law covers more employers than the federal law, we believe it must
fall in its entirety as to hold otherwise would require a rewriting of the statute
to limit it in a manner which apparently was not within the contemplation of
the Legislature.
SUMMARY
The provisions of Article 5172a, Vernon’s Texas
Civil Statutes, requiring that women be paid premium pay for
overtime in certain situtations and prohibiting employers from
requiring that a woman work in excess of a certain number of
hours without her consent are invalid due to their conflict with
Title, VII of the Civil Rights Act of 1964.
Yours verv trulv,
L. HILL
Attorney General of Texas
Opinion Committee
p. 1190