Full text of Laws on Sex Discrimination in Employment : Federal Civil Rights Act, Title VII : State Fair Employment Practices Laws

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LAWS ON SEX DISCRIMINATION
IN EMPLOYMENT
F E D E R A L CIVIL RIGHTS ACT, T I T L E V I I - S T A T E

FAIR

EMPLOYMENT

PRACTICES

LAWS

V

rssTT


U.S.
D E P A R T M E N T OF LABOR


*

WOMEN'S BUREAU

APRIL

1967

LAWS ON SEX DISCRIMINATION IN EMPLOYMENT
FEDERAL CIVIL RIGHTS ACT OF 1964. TITLE VII
T i t l e VII of the F e d e r a l C i v i l Rights Act, approved July 2, 1964, prohibits discrimination in
private employment based on sex, in addition to
the usual grounds of race, color, religion, and
national origin. Effective July 2, 1965, the title
i s administered by a five-member bipartisan
Equal Employment Opportunity Commission appointed by the President.

tend to l i m i t employment opportunities, or otherwise adversely affect the employee's status based
on sex;

Coverage and Exemptions

F o r employers, labor organizations, or joint
labor-management committees to discriminate in
admission to or employment in apprenticeship or
other training or retraining programs, based on
sex.

T i t l e VII covers private employment and labor
organizations engaged in industries affecting
commerce, as w e l l as employment agencies, including the U.S, Employment Service system. In
general, employers and unions with at least 100
employees o r members, respectively, are covered
during the f i r s t effective year of the act; 75 employees, during the second year; 50, during the
third year; and 25, during the fourth year and
thereafter.
T i t l e VII exempts from coverage private
membership clubs, religious educational institutions, employees of an educational or a religious
institution who further the educational or religious
activities of such institution, and Indian tribes.
Unlawful Employment P r a c t i c t s
Under title VII it i s an unlawful employment
practice:
F o r employers to refuse to hire, to d i s charge, or otherwise ^ discriminate against a
person with respect to compensation, terms, conditions, or privileges of employment based on
sex; to limit, segregate, or classify employees in
such a way as to deprive any individual of employment opportunities or otherwise adversely affect
the employee's status, based on sex;
F o r labor organizations to exclude, expel
f r o m membership, or otheirwise discriminate
against any individual based on sex; to limit,
segregate, or c l a s s i f y its membership, or to
c l a s s i f y or f a i l or refuse to refer for employment
any individual in any way that would deprive or




F o r employers, labor organizations, or employment agencies to print, publish, or cause to
be printed or published advertisements indicating
preference, limitation, specification, or discrimination, based on sex;

Major Exceptions to Prohibited Employment
Practices
M a j o r exceptions to prohibited employment
practices may be permitted when:
Sex i s a bona fide occupational qualification
reasonably necessary to the normal operation of
the business.
Differentials in compensation, d i f f e r e n t
terms, conditions, or privileges of employment
are based on a seniority, merit, or incentive
system.
Different wages are paid i n different locations.
Differentials i n wages or compensation are
"authorized" by the F e d e r a l Equal Pay Act.
Differentials are based on ability tests that
are not intended to discriminate. (See appendix A,
Guidelines on Discrimination Because of Sex.)
Effect on State Laws
It i s stated specifically that nothing in title
VII shall relieve a person from any liability,
duty, penalty, or punishment provided by any State
law, other than a law that permits the doing of an
act which would be an unlawful employment p r a c tice under the title. (See appendix B, part I, for
E E O C policy as to relationship between title VII
and State protective labor laws for women.)

STATE FAIR EMPLOYMENT PRACTICES LAWS
Of the 36 States,! the District of Columbia,^
and Puerto Rico that have mandatory f a i r employment practices laws, 13 States ^ and the District
of Columbia prohibit discrimination based on sex.
Of these 14 laws, 10 are administered by an independent commission and 3 — Hawaii, Utah, and
Wisconsin —by a State agency; and 1— Idaho — i s
enforceable in the courts as a misdemeanor.
In only 2 States—Hawaii and Wisconsin—
were the prohibitions against discrimination based
on sex enacted p r i o r to the passage of the Federal
C i v i l Rights Act of 1964. In 9 jurisdictions the
laws were effective on varying dates in 1965; in
Michigan the amendment prohibiting sex discrimination was effective in 1966; and in Idaho
and Nevada the amendments prohibiting sex discrimination w i l l be effective on specified dates
in 1967.
Coverage and Exemptions
In addition to covering private employment,
a l l but Hawaii, Maryland, Nebraska, Nevada, and
the District of Columbia cover public employment.
In Maryland the law applies only to employers. In a l l other jurisdictions the law states
specifically that employers, labor organizations,
and employment agencies are covered.
In general, the exemptions follow those of
title VII. A l l the jurisdictions except Hawaii,
Idaho, Michigan, M i s s o u r i , New York, Wyoming,
^Alaska, Arizona, California, Colorado, Connecticut,
Delaware, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas,
Kentucky, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Missouri, Montana, Nebraska, Nevada, New
Hampshire, New Jersey, New Mexico, New York, Ohio,
Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, West Virginia, Wisconsin, Wyoming. Oklahoma provides for voluntary compliance in private employment;
however, the law is mandatory with respect to State employment.
^Police regulations were amended June 10, 1965, to
include Article 47, Order No. 67-768.
3 Arizona, Hawaii, Idaho, Maryland, Massachusetts,
Michigan, Missouri, Nebraska, Nevada, New York, Utah,
Wisconsin, Wyoming. In addition, Colorado's fair employment practices law prohibits discrimination in apprenticeship and training programs. Washington has an executive
order that bans discrimination based on sex in public employment. Alaska and Vermont fair employment practices
laws prohibit discrimination in wage rates only, which makes
them essentially equal pay laws.




and the District of Columbia exempt private
social clubs. A l l have some type of religious
exemption—either the entire organization, a particular type of agency such as a religious educational agency, or only the employees of the o r ganization whose work i s connected with the
propagation of the particular religion* In addition,
a l l but Hawaii, Idaho, Wisconsin, and the D i s t r i c t
of Columbia exempt employers with less than a
specified number of employers. Maryland and
Nebraska follow exactly the F e d e r a l requirement for coverage, but in the other 8 States the
requirements range f r o m 2 or more employees
in Wyoming to 25 or more in M i s s o u r i and Utah.
Exemptions not aUowed by the F e d e r a l law but
included in State laws are: domestic service i n
5 States—Massachusetts, Michigan, Nebraska,
New Y o r k , Utah—and the District of Columbia;
and family employment i n 4 States—Massachusetts, Nebraska, New Y o r k , Wisconsin—and the
D i s t r i c t of Columbia.
Unlawful Employment Practices
In general, the employment practices p r o hibited by State laws are the same as those
prohibited by the F e d e r a l law. In some instances
the wording of State laws i s slightly different f r o m
the wording of Federal law in that they may p r o hibit discrimination in promotions or tenure as
well as in "terms, conditions, and privileges of
employment." Utah i s the only State that does not
use the wording: "terms, conditions, and p r i v ileges of employment." Discriminatory advertising is prohibited in a l l the laws except those
of Idaho, Maryland, Wisconsin, and Wyoming.
Arizona, Missouri, Nebraska, Nevada, New Y o r k ,
Utah, and the District of Columbia specifically
include training programs.
Maior Exceptions
It is interesting to note that sex as a bona
fide occupational qualification i s an exception i n
a l l the jurisdictions except Maryland and Wyoming, which have no exceptions of any kind. Other
exceptions include: differentials pursuant to a
bona fide seniority, merit, or incentive wage
system, o r differentials i n wages paid in different
locations (as provided in Arizona, M i s s o u r i ,
Nebraska, Nevada, and Wisconsin); differences in
terms and conditions of bona fide retirement, pension, and mutual benefit or insurance plans

(Hawaii, Michigan, Missouri, New York, W i s consin, and the D i s t r i c t of Columbia); and any law
that controls employment of minors (Hawaii).
In Relation to Other State Labor Laws for
Women
The f a i r employment practices laws of 3
States—Massachusetts, M i s s o u r i , and Nebraska—
specifically provide that State labor law standards in effect for women are not invalidated by
the F E P laws. In Massachusetts there i s a




specific reference to the code sections of State
labor laws for women; in M i s s o u r i and Nebraska
the reference is to other laws in the statute. The
New Y o r k State Commission for Human Rights
that administers its F E P law has issued rulings
interpreting the "sex" provisions of its law. In
addition, the Utah Industrial Commission, AntiDiscrimination Division, has issued guidelines
on sex discrimination. (See appendix B, part II,
for excerpt f r o m the State law, the New Y o r k
State ruling, and the Utah Sex Discrimination
Guidelines.)

FEDERAL CIVIL RIGHTS ACT, 1964, AND STATE EMPLOYMENT PRACTICES LAWS THAT
Coverage and Unfair Labor
STATE

FEDERAL
PBDVISIONS OF LAW

DATE OF SEX PROHIBITION
Enacted
Effective

C i v i l Rights A c t ,
1964, T i t l e V I I

ARIZONA

DISTRICT
OF
COLUMBIA

7/2/64

VV65
7/20/65

1/2/65

7/2/65

COVERAGE - D^LOYER
25 a f t e r 3 yrs.^

X
20

6/10/65

HAWAII

IDAHO

6/3/63
VV64

3/8/67
5/8/67

—

X

X

X

—

—

20 weeks i n
ciirrent o r
preceding
calendar y r .
X

—

—

UMFAIR

^

mPWmiJiT

---

X

—

X

X

X

—

X

—

—

—

—
—

—

—

X

X

—

—

X

X

—

—

—

X
X

X
—

X

X
—

20 weeks i n
current or
preceding
calendar yr.

—

X

X
X
X

X
---

—

—

X
25 a f t e r 3
yrs.^

X

—

ECIMPTIONS
Private s o c i a l clubs
F a M l y employioent
R e l i g i o u s , educational, s o c i a l , or n o n p r o f i t
organizations
Religious educational i n s t i t u t i o n s
Employees o f an e d u c a t i o n a l i n s t i t u t i o n who
f u r t h e r i t s work
Etoployees o f a r e l i g i o u s i n s t i t u t i o n who
f u r t h e r i t s work
Indian t r i b e s

5/4/65
7/V65

(PoUce
regulation)

lUnlmuin p e r i o d o f employment o f required
20 weeks i n current
or preceding calendar year.

MARYLAND

—

PRACTICES
X
X
X

Proiaotion
Tenrs, c o n d i t i o n s , p r i v i l e g e s of employioent
Classification, limitation, segregation,...
Advertisir^

—

D i s c r i m i n a t e i n any way
Other
Union
Membership (admission or expulsion)
Referral
Classification, lijnitation, segregation,...

—

D i s c r i m i n a t e i n any way
Employment agency
Referral
Classification, limitation,
Advertising

segregation....

X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
—

X
X
X
—

X
X
X
X
X ^
X
—

X
—

X
X
X 5
X
X
X
—

X
Other
EXCEPTIONS
"Sex" a bona f i d e o c c u p a t i o n a l q u a l i f i c a t i o n .
P r e f e r e n c e t o Indians on or near r e s e r v a t i o n .
A n t i s u b v e r s i v e o r s e c u r i t y measures o r
actions
D i f f e r e n t i a l s based on s e n i o r i t y , merit, o r
i n c e n t i v e system; or wages i n d i f f e r e n t
locations
D i f f e r e n t i a l s from a b i l i t y t e s t s not intended
to discriminate
D i f f e r e n t i a l s i n pay authorized by the
F e d e r a l Equal Fay Act
D i f f e r e n t i a l s i n terms o r c o n d i t i o n s o f any
bona f i d e retireiaent, pension, employee
b e n e f i t (death and s u r v i v o r b e n e f i t ) , o r
insurance plan«
D i f f e r e n t i a l s from f a c t o r s other than s e x * . . .
Child labor laws...

—

X ^




X
X
X
X
X
X
X 9
X
X
X
X
X
X^

X
X
X

X
X
X
—

—

X
X
X

X
—

X
X
X
—

X
—
—
—

X^

Xio

X ^
—

X

—
—
—

—

X
X ^

X
X

X 7 10

—

X
X 9

X

X

X

X

X

X

X

X

X

X

X

X

—
—

—

X
X

—
—

—

X
X

—

___
___

X

X

—
—_

X
X

—

See f o o t n o t e s on page 6.

X
X
X
X
X
X
X
X
X
X '

—

—

—

INCLUDE A PROHIBITION AGAINST DISCRIMINATION IN EMPLOYMENT BECAUSE OF SEX
Practices as of April 1, 1967
STATE—Continued
MA.^^SACHUSETTS

MICHIGAN

5/3/65
8/V65

12/2V66
32/21/66

X

X
8

6

MISSOURI

6/30/65
10/13/65

X
25

...

X

X

X
X
X

X

X

X
X
X

2/24/67
7/V67

X
25 a f t e r 3 y r s . ^

X
15

20 weeks i n current o r preceding
calendar y r .

20 weeks i n current or preceding
calendar y r .

NEW TORK

6/28/65
9/1/65

X
4

X
X

—

X

—

X

---

X

—

—

X
—

X
—

X
9

X
X
X

WISCONSIN

I^TDMING

3/18/65
5/1V65

9/27/61
lJO/lD/61

3/1/65
7/1/65

X
25

X

X
2

X

X 3

X

UTAH

...

...

—

X ^

•77

X

NEVADA

X^

X
X

X
X

X

X
X
X

X
X
X

X
X
X

X
X
X

X
X
X
X

X
X
X
X

X
X
X
X

X
X
X
X

X
X
X
X
X
X
X ^

X
X
X
X
X
X
X '

X

X
X
X

8/3/65
8/3/65

X
X
X

X
X
—

NEBRASKA

X
X
—

—

X

—

X

___

X

...

X
X
—

X
X
X «

...
...
X

X

—

X ^

—

X

X
X
X

X
X
X

X
X 9

X
X ^ ^^

X
X '

X
X '

X
X 9

T^

X

—
—

X

X

—

—

—

—

—

—

...

—

X

X

—

—

—

—

...

X

X
—

X

...

—

—

—

X
X

X
X

—

X
X

—

—

—

—

—

X

X

...

X

...

—

...

---

X

X

X

—

—

X

—

—

™

—

—

---

X

X

—

—

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X

...

—

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X

...

X

X

—

...
X




X

X

X
—

...

X

Y 7
A

—

X
X
X

X
X
X

X
X
X

X

X
X

X
X

X

...

X
X
X
X
X
X
X 9

X
X ®

X ®
—

X
X
X
X
X^

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X ^

X '

X 5

...

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X
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X

x^
X

T^
X
X
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...

—

X

:::

...
...

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X

...

—

—

...

FOOTNOTES
1 Any activity, business, or industry engaged in
or affecting interstate commerce,
^ First effective year of act, 100 employees;
second year, 75; third year, 50. Applies also to union
membership, but not to employment agencies in
Federal act.
® By practice. Board of Higher Education of City
of New York v. Carter, 14 N.Y. 2d 138; 199 N.E. 2d
141 (1964). Wisconsin Biennial Reports. July 1, 1962June 1964.
4 Exempts only religious organizations or corporations and associations owned and operated by
religious groups.
® Exempts only nonprofit fraternal or religious
associations,
® Exempts only religious organizations or associations,
^In Utah and Wyoming also includes demotion,
and in Michigan includes tenure.

utilizing any employment agency, placement service,
training school or center, labor organization or any
other employment-referring source known to discriminate on the basis of sex,
^^ Causing or attempting to cause an employer to
discriminate against an individual in violation of
the law. In Idaho includes barring from employment,
^^Also unlawful for an employment agency to conduct business under a name which directly or indirectly
expresses or connotes any limitation, specification, or
discrimination as to sex, except that any presently
operating agency bearing a name that directly or indirectly expresses or connotes any such limitation,
specification, or discrimination may continue to use
its present name, if it displays, under such name
wherever it appears, a statement to the effect that its
services are rendered without limitation, specification, or discrimination as to sex,
^^ Also applies to differentials between a male and
female in compensation, terms, conditions, or privileges of employment, if authorized by sec. 703 of the
Federal Civil Rights Act or by State law,

® Also includes vocational school,
g

Also includes: (a) discrimination because of
person's opposition to an unlawful practice, or because person filed a charge, testified, or assisted at
a hearing; (b) aiding, abetting, inciting, compelling, or
coercing the doing of an unlawful act. District of
Columbia: also preventing any person from complying
with law. Maryland; only (a) applicable. Nebraska:
only (a) applicable, Nevada; only (a) applicable. Utah;
only (b) applicable but also includes obstructing any
person from complying with the law, or committing
an act in violation of the law. Michigan; also includes
limiting employment opportunities through a quota or




" Nothing in title VII of the Federal Civil Rights
Act of 1964, as amended, exempts or relieves any
person from any liability, duty, penalty, or punishment
provided by any present or future law of any State or
political subdivision of a State, other than any law that
requires or permits the doing of any act that is an unlawful employment practice under title VII (sec. 708).
See also sec. 1604.1(c), Guidelines on Discrimination Because of Sex, issued by the Equal Employment
Opportunity Commission December 2, 1965, as published in the Federal Register, vol. 30, No, 232—
December 2, 1965, and amended April 27, 1966 (appendix A).

APPENDIX A
Chapter X l V - E q u a l Employment Opportunity Commission
P A R T 1604-GUIDELINES ON DISCRIMINATION B E C A U S E O F SEX

By virtue of the authority vested in it by Section 713(b) of the C i v i l Rights Act of 1964, 42
U.S.C. 2000e-12(b), the Equal Employment Opportunity Commission hereby amends Chapter
XIV of T i t l e 29 of the Code of F e d e r a l Regulations to add a new P a r t 1604, entitled Guidelines
on Discrimination Because of Sex, Because the
provisions of the Administrative Procedure Act
(5 U.S.C* 1003) requiring notice of proposed rule
making, opportunity for public participation, and
delay in effective date, are inapplicable to these
interpretative rules, they shall become effective
immediately and shall be applicable with respect
to cases presently before or hereafter filed with
the Commission.
The new P a r t 1604 reads as follows:
Introduction. The following guidelines are
interpretations of the Commission published pursuant to Section 713(b) of the C i v i l Rights Act of
1964, 42 U.S.C. 2000e-12(b), and Sec. 1601.30 of
the Commission's regulations, 29 C F R 1601.30.
The Commission has proceeded with caution
in interpreting the scope and application of T i t l e
VII's prohibition of discrimination in employment
on account of sex. We are mindful that there i s
little relevant legislative history to serve as a
guide to the intent of Congress in this area. Also,
there i s little light in the experience with state
statutes. An overly l i t e r a l interpretation of the
prohibition might disrupt longstanding employment practices required by state legislation or
collective bargaining agreements without achieving compensating benefits in progress towards
equal opportunity.
These guidelines are an effort to temper the
bare language of the statute with common sense
and a sympathetic understanding of the position
and needs of women workers. Nevertheless,
where the plain command of the statute i s that
there be no a r t i f i c i a l classification of jobs by
sex, the Commission feels bound to follow it,
notwithstanding the fact that such segregation
has, i n particular cases, worked to the benefit
of the woman worker.




Probably the most difficult area considered
in these guidelines i s the relation of Title VII to
state legislation designed originally to protect
women workers. The Commission cannot assume
that Congress intended to strike down such legislation. Yet our study demonstrates that some of
this legislation i s irrelevant to present day needs
of women, and much of this legislation i s capable,
in particular applications, of denying effective
equality of opportunity to women.
T i t l e VII, which makes suspect any sex distinction in employment, and state protective
legislation, which requires special treatment for
women, represent competing value judgments
which cannnot easily be harmonized. C l a r i f i c a tion and improvements can however be achieved.
We believe it desirable—even essential—that
Congress and the state legislatures address
themselves to this problem. State legislatures
w i l l find archaic provisions in their laws which
should be updated. And the Congress may wish
to determine how much weight should be given to
outmoded laws whose practical effect today i s
not so much to protect as to disadvantage.
The many State commissions on the Status
of Women, which have expressed concern that
some protective laws may have lost their r a tionale, may wish to make appropriate recommendations to State legislatures. The Women's
Bureau of the Department of Labor, which has
been studying these laws, should soon have
available a definitive analysis with special emphasis on the relevance of these laws to current
technology and women's increasingly important
role in society.
Sec.
1604.1 Sex as a bona fide occupational qualification.
1604.2 Separate lines of progression and seniority systems.
1604.3 Discrimination against m a r r i e d women.
1604.4 Job opportunities advertising.
1604.5 Employment agencies.
1604.6 Pre-employment inquiries as to sex.
1604.7 Relationship of T i t l e VII to the Equal Pay
Act.

AUTHORITY: The provisions of this Part
1604 are issued pursuant to Sec. 713(b), C i v i l
Rights Act of 1964, 78 Stat. 265.
Sec, 1604.1 Sex as a bona fide occupational
qualification.
(a) The Commission believes that the bona
fide occupational qualification exception as to sex
should be interpreted narrowly. Labels—"Men's
jobs" and "Women's jobs "--tend to deny employment opportunities unnecessarily to one sex or
the other.
(1) The Commission will find that the following situations do not warrant the application of the
bona fide occupational qualification exception;
(1) The refusal to hire a woman because of
her sex, based on assumptions of the comparative employment characteristics of women in
general. F o r example, the assumption that the
turnover rate among women i s higher than among
men.
(ii) The refusal to hire an individual based
on stereotyped characterizations of the sexes.
Such stereotypes include, for example, that men
are less capable of assembling intricate equipment; that women are less capable of aggressive
salesmanship. The principle of non-discrimination requires that individuals be considered on
the basis of individual capacities and not on the
basis of any characteristics generally attributed
to the group.
(iii) The refusal to hire an individual because
of the preferences of co-workers, the employer,
clients or customers except as covered specifically in subparagraph (2) of this paragraph.
(iv) The fact that the employer may have to
provide separate facilities for a person of the
opposite sex w i l l not justify discrimination under
the bona fide occupational qualification exception
unless the expense would be clearly unreasonable.
(2) Where it
of authenticity or
w i l l consider sex
qualification, e.g.,




is necessary for the purpose
genuineness, the Commission
to be a bona fide occupational
an actor or actress.

(3) Most States have enacted laws or administrative regulations with respect to the employment of women. These laws fall into two
general categories:
(i) Laws that require tiiat certain benefits be
provided for female employees, such as minimum
wages, premium pay for overtime, rest periods
or physical facilities;
(ii) Laws that prohibit the employment of
women in certain hazardous occupations, in jobs
requiring the lifting of heavy weights, during
certain hours of the night, or for more than a
specified number of hours per day or per week.
(b) The Commission believes that some state
laws and regulations with respect to the employment of women, although originally for valid
protective reasons, have ceased to be relevant
to our technology or to the expanding role of the
woman worker in our economy. We shall continue
to study the problems posed by these laws and
regulations in particular factual contexts, and to
cooperate with other appropriate agencies in
achieving a regulatory system more responsive
to the demands of equal opportunity in employment.
(c) The Commission does not believe that
Congress intended to disturb such laws and
regulations which are intended to, and have the
effect of, protecting women against exploitation
and hazard. Accordingly, the Commission w i l l
consider limitations or prohibitions imposed by
such state laws or regulations as a basis for
application of the bona fide occupational qualification exception. However, in cases where the
clear effect of a law in current circumstances
is not to protect women but to subject them to
discrimination, the law w i l l not be considered
a justification for discrimination. So, for example, restrictions on lifting weights w i l l not be
deemed in conflict w i ± Title VII except where
the limit is set at an unreasonably low level which
could not endanger women.
(1) An employer, accordingly, w i l l not be
considered to be engaged in an unlawful employment practice when he refuses to employ a
woman in a job in which women tfre legally
prohibited from being employed or which involve
duties which women may not legally be permitted
to perform because of hazards reasonably to be
apprehended from such employment.

(2) On the other hand, an employer w i l l be
deemed to have engaged in an unlawful employment practice if he refuses to employ or promote
a woman in order to avoid providing a benefit
for her required by law—such as minimum wage
or premium overtime pay.
(3) Where state laws or regulations provide
for administrative exceptions, the Commission
w i l l expect an employer asserting a bona fide
occupational qualification pursuant to this paragraph to have attempted in good faith, to obtain
an exception from the agency administering the
state law or regulation.
Sec. 1604.2 Separate lines of progression and
seniority systems.
(a) It is an unlawful employment practice to
classify a job as "male" or "female" or to maintain separate lines of progression or separate
seniority lists based on sex where this would
adversely affect any employee unless sex is a
bona fide occupational qualification for that job.
Accordingly, employment practices are unlawful
which arbitrarily classify jobs so that:
(1) A female i s prohibited from applying for
a job labeled "male," or for a job in a "male"
line of progression; and vice versa.
(2) A male scheduled for layoff is prohibited
from displacing a less senior female on a
"female" seniority list; and vice versa.
(b) A seniority system or line of progression which distinguishes between "light" and
"heavy" jobs constitutes an unlawful employment
practice if it operates as a disguised form of
classification by sex, or creates unreasonable
obstacles to the advancement by members of
either sex into jobs which members of that sex
would reasonably be expected to perform.
Sec. 1604.3 Discrimination against married
women.
(a) The Commission has determined that an
employer's rule which forbids or restricts the
employment of married women and which i s not
applicable to married men i s a discrimination
based on sex prohibited by Title VII of the C i v i l




Rights Act. It does not seem to us relevant that
the rule is not directed against all females, but
only against married females, for so long as sex
is a factor in the application of the rule, such
application involves a discrimination based on
sex.
(b) It may be that under certain circumstances, such a rule could be justified within the
meaning of Section 703(e)(1) of Title VII. We express no opinion on this question at this time except to point out that sex as a bona fide occupational qualification must be justified in terms of
the peculiar requirements of the particular job and
not on the basis of a general principle such as
the desirability of spreading work.
Sec. 1604.4 Job opportunities advertising.
(a) Help wanted advertising may not indicate
a preference based on sex unless a bona fide
occupational qualification makes it lawful to
specify male or female.
(b) Advertisers covered by the C i v i l Rights
Act of 1964 may place advertisements for jobs
open to both sexes in columns classified by publishers under "Male" or "Female" headings to
indicate that some occupations are considered
more attractive to persons of one sex than the
other. In such cases, the Commission w i l l consider only the advertising of the covered employer and not headings used by publishers.
Because the provisions of the Administrative Procedure Act (5 U.S.C. 1003) requiring
notice of proposed rule making, opportunity for
public participation, and delay in effective date,
are inapplicable to this interpretative rule, it
shall become effective immediately.*
Sec. 1604.5 Employment agencies.
(a) Section 703(b) of the C i v i l Rights Act
specifically states that it shall be unlawful for an
employment agency to discriminate against any
individual because of sex. The Commission has
determined that private employment agencies
which deal exclusively with one sex are engaged
in an unlawful employment practice, except to
•As amended by F . R, Doc. 66-4609; Filed. Apr. 27,
1966; 8:45 a.m.

Sec, 1604,7 Relationship of Title VII to the
Equal Pay Act.

the extent that such agencies limit their services
to furnishing employees for particular jobs for
which sex is a bona fide occupational qualification,

(a) Title VII requires that its provisions be
harmonized with the Equal Pay Act (section 6(d)
of the F a i r Labor Standards Act of 1938, 29
U.S.C. 206(d)) in order to avoid conflicting interpretations or requirements with respect to
situations to which both statutes are applicable.
Accordingly, the Commission interprets section 703(h) to mean that the standards of "equal
pay for equal work" set forth in the Equal Pay
Act for determining what is unlawful discrimination in compensation are applicable to Title
VII, However, it is the judgment of the Commission that the employee coverage of the prohibition against discrimination in compensation because of sex is co-extensive with that of the other
prohibitions in section 703, and is not limited
by section 703(h) to those employees covered by
the F a i r Labor Standards Act.

(b) An employment agency that receives a
job order containing an unlawful sex specification w i l l share responsibility with the employer
placing the job order if the agency f i l l s the order
knowing that the sex specification i s not based
upon a bona fide occupational qualification. However, an employment agency w i l l not be deemed
to be in violation of the law, regardless of the
determination as to the employer, if the agency
does not have reason to believe that the employer's claim of bona fide occupations qualification is without substance and the agency makes
and maintains a written record available to the
Commission of each such job order. Such record
shall include the name of the employer, the
description of the job and the basis for the employer's claim of bona fide occupational qualification.

(b) Accordingly, the Commission w i l l make
applicable to equal pay complaints filed under
Title VII the relevant interpretations of the Administrator, Wage and Hour Division, Department
of Labor. These interpretations are found in 29
Code of Federal Regulations, Part 800,119800.163. Relevant opinions of the Administrator
interpreting "the equal pay for equal work standard" will also be adopted by the Commission.

(c) It is the responsibility of employment
agencies to keep informed of opinions and decisions of the Commission on sex discrimination.
Sec. 1604.6 Pre-employment inquiries as
to sex.

(c) The Commission will consult with the
Administrator before issuing an opinion on any
matter covered by both Title VII and the Equal
Pay Act.

A
pre-employment
inquiry
may ask
"Male
, Female
or "Mr., Mrs.,
M i s s / ' provided that the inquiry is made in good
faith for a non-discriminatory purpose. Any preemployment inquiry in connection with prospective employment which expresses directly or
indirectly any limitation, specification or discrimination as to sex shall be unlawful unless
based upon a bona fide occupational qualification.




Signed at Washington, D.C., this 24th day of
November 1965.
F R A N K L I N D. R O O S E V E L T , Jr.,
Chairman.
[F.R.Doc. 65-12874; Filed,Dec. 1, 1965; 8:47a.m.]

10

APPENDIX B
Relationship Between Fair Employment Practices Laws and Protective
Labor Legislation for Women
/.

Federal

Law—Statement

Adopted

Employment
mission^
Processing
State

hy the

Opportunity
August
of

Protective

19,

Com1966y

Cases
Laws

i n which the facts indicate that the female charging parties are being denied promotional opportunities and the opportunity to earn premium pay
for overtime. The respondent employer admits
these facts but urges as justification the provisions of the California Labor Code which provide
that female employees may not be employed more
than eight hours in any day or 48 hours in any
week.

Equal
in

Involving
J

The Commission receives a significant volume of
charges alleging discrimination based on sex,
which involve the relation of T i t l e VII to state
protective legislation for women workers. In
our Guidelines on Discrimination Because of Sex,
published in November 1965, the Commission
stated:

The Commission finds further that the employer's
overtime requirements for the jobs sought by
the charging parties are legitimate and bona fide
and that no administrative exceptions are available under California law. There is no suggestion in the facts before us that the health or welfare of the charging parties would be adversely
affected by permitting them to work in excess of
48 hours a week. This case, therefore, poses
squarely the question whether T i t l e VII supersedes and in effect nullifies a state law which
compels an employer to deny equal employment
opportunity to women. F o r the reasons which
we set forth, we are not able at this time to r e solve this question.

"The Commission does not believe that Congress intended to disturb such laws and
regulations which are intended to, and have
the effect of, protecting women against exploitation and hazard. Accordingly, the Commission w i l l consider limitations or prohibitions i m p o s e d by such state laws or
regulations as a basis for application of the
bona fide occupational qualification exception. However, in cases where the clear
effect of a law in current circumstances is
not to protect women but to subject them to
discrimination, the law w i l l not be considered a justification f o r
discrimination." 30
14927.

Over forty states have laws or regulations which,
like California's, limit the maximum daily or
weekly hours which women employees may work.
What effect Congress intended T i t l e VII to have
upon such laws is not clear. An intent to alter
drastically this pattern of state legislation should
not lightly be presumed. However, the Commission believes that i n fact these laws in many
situations have an adverse effect on employment
opportunities for women. To what extent this
adverse effect is counterbalanced by the protective function which these laws serve this Commission i s not presently in a position to judge.
A choice between these two competing values
could probably be avoided if these protective
laws were amended to provide for greater flexibility, but the Commission cannot rewrite state
laws according to its own views of the public
interest.

Since that time, in processing such cases, we have
scrutinized carefully employer claims that discrimination was compelled by state law, and we
have sought practical solutions which would enable employers to comply with both T i t l e VII
and state laws. To that end we have insisted that
employers who rely on state law as a basis of
unequal treatment of female employees seek such
administrative exceptions as a r e available, and
we have encouraged state legislatures and administrators to provide for more flexibility in
their laws and regulations. We have, however,
refrained f r o m ruling squarely on the situation
i n which the conflict between T i t l e VII's demand
f o r equal employment opportunity and the requirements of state law is complete and unresolvable.

The Commission's f u n c t i o n s in processing
charges under T i t l e VII are limited to investigation, determining whether there i s reasonable
cause to believe a violation has occurred, and
conciliation. While we have a duty to interpret

The Commission now has before it a case involving a charge of discrimination based on sex.
^Commerce Clearing House, Employment Practices
Guide, paragraph 16,903.




11

Excerpt from the Missouri Attorney General's
Opinion, No. 82, of January 31, 1967:

Title VII, we have no authority by such an interpretation to insulate employers against possible liability under state law, nor do we have
authority to institute in the name of the Commission suits to challenge or restrain the enforcement of state laws.

[The Missou^ri F a i r Employment Practices
Act] prohibits discriminatory treatment based
upon sex in employment matters, but also expressly recognizes that special treatment based
on sex in regard to employment is not to be considered discriminatory if other laws require or
permit it. The Missouri statutes mistaken by
some to be in conflict with the M i s s o u r i F a i r
Employment Practices Act are not drafted so as
to be discriminatory towards women. On the
contrary these laws are designed to protect
women. Hence women are not being provided with
unequal treatment but rather they are given
special treatment....

Therefore, in the instant case and in cases which
pose the same issues, the Commission is not
prepared to make a determination with respect
to the merits of the case, but shall advise the
charging parties of their right to bring suit within
30 days under section 706(e) of Title VII to secure
a judicial determination as to the validity of the
state law or regulation. Such litigation to resolve
the uncertainties as to the application of Title VII
seems desirable and necessary, and the Commission reserves the right to appear as amicus
curiae to present its views as to the proper construction of Title VII.

//. State

Law—Examples

of State Laws

or

Interpre-

tations

of Relationship

Between

State

Fair

Practices

Laws
Laws

and
for

Employment
State

Protective

"It must be clearly understood [however]
that the laws hereinbefore mentioned must be the
real reason for denial of the employment opportunity and . . . the Human Rights Commission
contemplates close examination of each situation
in order to determine that the employment is in
fact covered by said l a w s . . . . "
Nebraska, L , B . 656, Laws 1965, page 737

Labor

Women,

Sec. 24. Nothing contained in this act shall
be deemed to repeal any of the provisions of the
c i v i l rights law, any other law of this state, or
any municipal ordinance relating to discrimination because of race, creed, color, religion, sex,
or national origin.

Excerpts from State F E P laws:
Massachusetts, Chapter 151 B of the General
Laws, as amended by Chapter 397, Laws 1965
Sec. 7. The provisions of this chapter shall
be construed liberally for the accomplishment of
the purpose thereof, and any law inconsistent
with any provisions hereof shall not apply, but
nothing contained in this chapter shall be deemed
to repeal any provision of chapter one hundred
and forty-nine which establishes standards, terms
or conditions of employment which are applicable
to f e m a l e s . . . .

Excerpt from Rulings of New York State Commission for Human Rights Interpreting "Sex"
Provisions: 2
D. Bona Fide Occupational Qualifications
The law provides for a bona fide occupational
qualification in certain cases.
1. Consideration may be given to sex as a
bona fide occupational qualification in
such circumstances, among others, as
follows:

Missouri, S.B. 235, Laws 1965, page 155
Sec. 8. Notwithstanding any other provision
of this title, it shall not be an unlawful employment practice because of sex to differentiate in
employment, compensation, terms, conditions, or
privileges of employment between male and
female employees if such differences are otherwise required or permitted by the laws of this
state....




(c) Where sex is a bona fide factor in
fulfilling t h e provisions of o t h e r
statutes, e.g., the New York City Adm.
Source: Commerce Clearing House, Employment
Practices Guide, paragraph 26,053 reports: The rulings
are intended merely as "working presumptions" in carrying out the purposes of the law.

12

Code Sec. B32-196,0(b), which requires that only men masseurs may
serve men and only women masseurs
may serve women, or laws creating
a differential in the conditions of employment for females, e.g.. Labor
Law Sees. 172, 173, 174, 175, and
176.2, which prescribe hours of work
for women.

Sec. 4. Bona Fide Occupational Qualifications—The Law provides for a bona
fide occupational qualification in certain cases.
1. Consideration may be given to sex as
a bona fide occupational qualification
in such circumstances:
c. Where sex is a bona fide factor
in fulfilling the provisions of other
Statutes. Section 34-4-1, U t a h
Code annotated 1953, which prohibits employment of women in
mines and smelters.

Excerpt from Utah Industrial Commission, AntiDiscrimination D i v i s i o n Sex Discrimination
Guidelines, Sept. 19, 1966:3
Source: Commerce Clearing House,
Practices Guide, paragraph 28,120.




Employment

Labor D.C. (WB 67-297)

13

GPO 924-300