                    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:



                                  p. 1187
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
