                       March 18, 1969
                                                d"""'""'

    Honorable Tommy V. Smith             Opinion NO. ~-363
    Commissioner
    Bureau of Labor Statistics           Re:    Whether under federal law
    State of Texas                              Article 5172a, V.C.S., con-
    Capitol Station                             flicts with Title VII, Civil
    Austin, Texas 78711                         Rights Act of 1964, and is
                                                invalid.
    Dear Mr. Smith:
           You have requested an opinion of this office as to
    whether the following statute, Article 5172a, Vernon's Civil
    Statutes, is invalid by reason of Title VII of the Civil
    Rights Act of 1964.
          Vernon's Civil Statutes, Article 5172a
                   SUMMARY OF ARTICLE   5172a

              Sections 1 through 3 limit the number of hours
           that a female can work to 9 hours in a twenty-four
           (2~4)hour period, or one day period; or 54 hours
           in a one week period, for certain types of in-
           dustries and businesses within the State. Sections
           2 and 3 provide for overtime pay.
              Section 4 makes it mandatory for the employers
           mentioned in Sections 1 thru 3 to provide seats for
           female employees when not engaged in the active
           duties of their employment.
              Section 5 sets out the types of female employ-
           ment that are excepted from Sections 1 through 4.
           Part 6 of Section 5 establishes the number of hours
           that female employees in banks can work in one day
           or one week.
              Sections 5a and 6 set out exceptions and exemptions
           to Sections 1 through 5 in case of extraordinary
           emergencies, war, or national emergencies. Sections
           7 through 13 deal with hearings under Sections 5a
           and 6, failure to comply with the Act, and punish-
           ment for violations of the Act.

                            - 1789-
.
Honorable Tommy V. Smith, Page 2, (M-363)


       The pertinent parts of the 1964 Civil Rights Act which
prohibit discrimination because of sex are found in 42 U.S.C.A.,
Section 2000e-2, and read as follows:

       n (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
       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."
       Before any opinion can be given, it is first necessary
to look to the history and purpose of Article 5172a.   In the
early part of the ZOth~Century many states including Texas
passed,legislation to protect female employees. Because prior
to the passage of these "female protection laws" some em-
ployers had exploited both female and ~child employees with
little regard to the health or well being of such employees.
There are many cases that have upheld this type of protective
legislation. For example, see Miller v. Wilson, 236 U.S. 373,
35 S.Ct. 342, 59 L.Ed. 628 (1915); Muller v. State of Oregon,
208 U.S. 412, 28 S.Ct. 324,'52'L.Ed. 551'(1908);
       In Muller, supra, the Court said on page 422,
       U . . .Even though all restrictions on political,
       personal and contractual rights were taken away,
       and she stood, so far as statutes are concerned,
       upon an absolutely equal plane with him, it would
       still be true that she is so constituted that
       she will rest upon and look to him for protection;
       that her physical structure and ~a proper discharge
       of her maternal functions -- having in view not
       merely  her own health, but the well-being of the
       race -- justify legislation to protect her from
       the greed as well as the passion of man."



                        - 1790   -
Honorable Tommy V. Smith, Page 3,   (M-363)




       In Mengelkoch v. Industrial Welfare Commission, 284
Fed.Supp. 950 (Cal. Dist. 1968), also 284 Fed.Supp. 956
(Cal. Dist. 1968), it was held that where there are prior
United States Supreme Court decisions upholding state
statutes such as Article 5172a and no subsequent de-
cisions have overruled these previous decisions, it is
improper to test constitutionality of such statutes by a
three-judge Federal Court. It was reasoned that a Supreme
Court decision is as binding as statutory law and it was
held that the court was without jurisdiction to decide
whether California's statute (Section 1350 of the Cali-
fornia Labor Code, which prohibits women from working more
than eight (8) hours a day or more than forty-eight (48)
hours a week) had been pre-empted by the Civil Rights Act.
The basis of the holding was that the Plaintiff had failed
to raise a substantial constitutional issue under the
Equal Protection Clause of the United States Constitution.
The Court nonetheless contributed some pertinent judicial
dicta on page 954, as follows:
         "On the other hand, this may depend upon the
      character of the employment. The classification
      of women as a group needing some particular pro-
      tection of the law may still be reasonable for
      many purposes. It has also been pointed out
      that the abandonment of limitations on working
      hours for women would place women on an equal
      basis with men in the matter of overtime pay,
      but at the same time would also make them sub-
      ject to the obligation to perform as much overtime
      work as required of men. This is a mixed bless-
      ing. It is not a matter of letting women earn
      overtime when they want to, but an obligation to
      work overtime whether they want to or not on
      pain of being discharged. This could result in
      women being squeezed out of certain industrial
      work rather than broadening the employment base
      and opportunity for women in industry. It is
      not so certain as plaintiffs assume that their
      position represents the will of many other women,
      even if similarly situated.
          "Plaintiffs have not distinguished the
       issue presented from the one presented in Muller
       v. Oregon, supra. The principle of stare decisis




                        -1791-
Honorable Tommy V. Smith, Page 4, (M-363)


      must ultimately control the decision at the dis-
      trict court level. A Supreme Court decision is
      as binding as statutory law. The district court,
      even sitting as a three-judge tribunal, cannot
      reverse the Supreme Court. When the law has
      developed through intervening decisions to the
      point that it has become clear that the Supreme
      Court has abandoned the reasoning which gave
      rise to an earlier decision and that the law
      has in fact changed and all that is needed is
      recognition, then an inferior court should rec-
      ognize what is obvious and act accordingly. now-
      ever, there has been no line of decisions which
      cast doubt upon the basic holding of Mull&.   There-
      fore, this case does not present a substantial con-
      stitutional issue. Mere speculation as to what
      the Supreme Court might do in the light of the
      changed circumstances will not suffice to take
      this issue out of the insubstantial category."
       The foregoing decision was appealed directly to the
United States Supreme Court. See 21 L.Ed. 2d.215; ~89 SCt.
       Here the Court held that it had no jurisdiction to
artain    a direct appeal from the decision of a sinole
judge, and when a three-judge court dissolves itself for
want of jurisdiction, an appeal lies to the appropriate
Court of Appeals and not to the Supreme Court. On page 216
the Court said,
          "A three-judge federal court convened pur-
       suant to 28 USC §2281; determined that 'there
       is no idurisdictionfor a three-iudqe court'
       and entered an order dissolving itself.
       F.Supp.            . The single district judge
       in whose-&t-        case was originally filed
       considered further and dismissed the case with-
       out prejudice under the doctrine of abstention,
       stating in his memorandum opinion that '[tlhe
       order dissolving the three-judge court is in-
       corporated in this memorandum by reference.'
           F.Supp. -'    -*      Appellant appeals
       from both judgments. In these circumstances,
       we have no jurisdiction to entertain a direct
       appeal from the decision of the single judge;
       such jurisdiction is possessed only by the
       appropriate United States Court of Appeals.



                        -1792-
Honorable Tommy V. Smith, Page 5, (M-363)


      28 USC 91291. Moreover, we have held that
      when, as here, a three-judge court dissolves
      itself for want of jurisdiction, an appeal lies
      to the appropriate Court of Appeals and not to
      this Court. Wilson v. Port Lavaca, 391 U.S.
      352, 20 L.Ed. 2d 636, 88 S.Ct. 1502.
         "Although the appellants have lodged in the
      Court of Appeals for the Ninth Circuit a pro-
      tective appeal from the decision of the single
      judge, it does not appear from the record that
      such an appeal has been filed with respect to
      the three-judge order. Therefore, we vacate
      the order of the three-judge court and remand
      the case to the District Court so that a timely
      appeal may be taken to the Court of Appeals.
      See Wilson v. Port Lavaca, supra; Utility Comm'n
      v. Pennsylvania R. Co., 382 U.S. 281, 282, 15
      L.Ed. 2d 324, 325, 86 S.Ct. 423. The appeal
      from the decision of the single judge is dis-
      missed for want of jurisdiction.
          "It'is so ordered."
       The case is now on appeal to the United States Court
of'Appeal8, Ninth Circuit.
       The only other recent case we have found dealing with
this problem is Rosenfeld v. Southern Pacific Co,        F.Supp.
      59 L.C.      9172, 69'LRRM 2822'(C.D. Calif. Civil No.
~&J-F.     NOVS-22.   1968). Here the Court held that the same
California statute; Section 1350 of the California Labor Code,
which prohibits female employees from working more than eight
(8) hours per day or forty-eight (48) hours per week does not
constitute a bona fide occupational qualification within the
meaning of the 1964 Civil Rights Act. The Court also held
that the California hours and weights legislation discriminates
against women on account of sex, which violates the provisions
of the Civil Rights Act of 1964. The court concluded such
legislation is contrary to the Supremacy Clause (Article VI,
Clause 2) of the United States Constitution and therefore, is
void, and of no force   or effect. No cases are cited in this
opinion, and the decision is presently being appealed to the
United States Court of Appeals, 9th Circuit. The opinion is
contrary to all previous United States Supreme Court cases in
this field which have upheld state legislation passed to pro-
tect female employees.


                        - 1793-
Honorable Tommy V. Smith, Page 6, (M-363)


       We are not bound by the decision of a United States
District Court in another jurisdiction, and under the cir-
cumstances shown we must uphold the constitutionality of
the Texas statute if under any reasonable construction a
court may so uphold it.
       It is fair to assume that Congress would not have
included Title 42 U.S.C., Section 2000h-4, had'it intended
to pre-empt such state legislation. The federal statutory
provision states:
       "Construction of provisions not to exclude oper-
       ation of State laws and not to invalidate con-
       sistent State laws
        "Nothing contained in any title of this Act
      shall be construed as indicating an intent on
      the part of Congress to occupy the field in
      which any such title operates to the exclusion
      of State laws on the same subject matter; nor
      shall any provision of this Act be construed
      as invalidating any provision of State law un-
      less such provision is inconsistent with any
      of the purposes of this Act, or any provision
      thereof. Pub.L. 88-352, Title XI, 5 1104,
      July 2, 1964, 78 Stat. 268."
       We also find that the General Counsel for Equal employ-
ment Opportunity Commission charged.with investigating com-
plaints filed under the 1964 Civil Rights Act, in an opinion
released'on April.28; 196J'saidi
       "Effect of Title VII on federal overtime limitation.
          "Title VII does not repeal by implication existing
       federal laws concerning employment of women or autho-
       rise employers to violate such laws. Consequently,
       federal law forbidding employers in the District of
       Columbia to employ women for more than eight hours
       a day is not in conflict with Title VII. However,
       employers should seek all available administrative
       exceptions to laws restricting employment opportu-
       nities for women.




                         - 1794-
Honorable Tommy V. Smith, Page 7, (M-363)


          "In your letter you state that the Minimum Wage
       and Industrial Safety Board of the District of
       Columbia has notified you that you may not work your
       female employees more than eight hours a day, al-
       though no such limitation is applicable to male
       employees. You ask if the Board's action is incon-
       sistent with Title VII of~the Civil Rights Act.
          "The maximum hour limitation you refer to is
       imposed by act of Congress, D.C. Code, 9 36-301.
       The Comniissiondoes not believe that Title VII
       was intended to repeal by implication existing
       federal laws regarding the employment of women,
       and, consequently, we do not believe that Title
       VII authorizes an employer to violate require-
       ments imposed by such laws. However, the Com-
       mission does believe that to comply with Title
       VII an employer should seek whatever administra-
       tive exceptions may be available under such laws."
       See C.C.H. Employment Practices Guide, Paragraph
       17,304.56.

       If Congress did not intend to pre-empt federal laws
regulating the maximum number of hours women can work in the
District of Columbia, neither did Congress intend for the
Civil Rights Act of 1964 to pre-empt similiar state laws
designed to protect female employees by setting the maxi-
mum number of hours they may work.
       Furthermore, in January, 1967, The Missouri Attorney
General's office wrote an opinion on this problem and con-
cluded that the 1964 Civil Rights Act had not pre-empted
a Missouri statute very similiar to Article 5172a.  See
Missouri Attorney General's Opinion No. 45 (1967).
       It is the opinion of this office that Article 5172a
has not been shown by,any binding authority to be invalid
or to have been pre-empted by the federal Civil Rights Act
of 1964. Under these circumstances we must hold that Article
5172a is-valid and constitutional.
                       SUMMARY
          The Federal Civil Rights Act of 1964, which pro-
       hibits discrimination because of sex in employment,
       has not invalidated Article 5172a, V.C.S., which



                         - 1795-
Honorable Tommy V. Smith, Page 8,   (~-363)



         prohibits female employees from working more than
         nine (9) hours per twenty-four (24) hour day or more
         than fifty-four (54) hours per week in certain in-
         dustries.

                             Vefltruly   yours,


                                      C. MARTIN

Prepared by Ronald Luna
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Monroe Clayton
Bob Lattimore
Charles Rose
Harold Kennedy
W.V. Geppert
Staff Legal Assistant




                         - 1796-
