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January 12, 1976


C.A. 9th Cir. Reported below: 509 F.2d 20.

[ 423 U.S. Page 1063]

Certiorari denied. MR. JUSTICE STEVENS took no part in the consideration or decision of this petition.

MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN joins, dissenting.

This petition presents the questions whether a California statute*fn1 that requires covered employers to pay premium overtime wages to female employees, with no such requirement as to male employees, conflicts with and is pre-empted by § 703(a) of Title VII of the Civil Rights Act of 1964, 78 Stat. 255, 42 U.S.C. § 2000e-2(a), and, if so, whether the federal courts should remedy its invalidity by declaring that an employer may disregard the California statute and need not pay premium overtime wages to female employees. The Court of Appeals answered both questions in the affirmative, 509 F.2d 20 (CA9 1974), and approved the District Court's refusal, 356 F. Supp. 1111, 1112 (ND Cal. 1973), to follow a decision of another Court of Appeals that is in square conflict on both questions. Hays v. Potlatch Forests, Inc., 465 F.2d 1081 (CA8 1972), aff'g 318 F. Supp. 1368 (ED Ark. 1970). These are substantial questions, and it is the Court's duty to resolve this disagreement which

[ 423 U.S. Page 1064]

     now impedes the important process of reconciling the federal statutes outlawing sex-based discrimination in employment with numerous "protective" state employment laws applicable only to female employees.

 Respondent Homemakers, which employs men and women, filed suit in District Court asking that Cal. Labor Code § 1350.5(a) (1971) be declared in conflict with Title VII and unenforceable. It argued that to pay the overtime premium to female employees in compliance with state law would violate Title VII because there was no statutory requirement to pay such wages to male employees. Without discussion the District Court concluded that requiring payment of premium overtime wages only to female employees did conflict with Title VII. ["Aware] that the only authority directly on this issue is contrary," the District Court declined the State's invitation to follow Hays v. Potlatch Forests, Inc., supra, and to require Homemakers to pay the same overtime premium to men as to women. To do so "would constitute usurpation of the legislative power that has been vested exclusively in the state Legislature." 356 F. Supp., at 1112. The District Court also rejected the State's argument that both federal*fn2 and state*fn3 "equal pay" laws required Homemakers to equalize wages by paying premium overtime wages to male employees, not by forbidding payment of such wages to female employees. It reasoned that the State's position conflicted with the purpose of the "equal pay" statutes which was "to protect only working women, not men, by supplementing women's income in an attempt to narrow the gap between the income of working women and that

[ 423 U.S. Page 1065]

     of men similarly employed." Ibid. The Court of Appeals affirmed the judgment that § 1350.5(a) conflicted with Title VII and was unenforceable, expressly approving the District Court's refusal to follow Hays v. Potlatch Forests, Inc., supra. 509 F.2d, at 22-23.

The statute at issue in Hays, Ark. Stat. Ann. § 81-601 (1960), is essentially indistinguishable from § 1350.5(a) and was upheld in District Court against the claim that it had been superseded by Title VII and should be declared unenforceable. The Court of Appeals for the Eighth Circuit affirmed, holding that the Arkansas statute was not inconsistent with Title VII because it "'does not say that women must be paid more than men; it simply says that they must be paid daily overtime without making a similar requirement as to men,'" 465 F.2d, at 1082, quoting 318 F. Supp., at 1375, and that "any discrimination against men resulting from the Arkansas statute is to be cured by extending the benefits of that statute to male employees rather than holding it invalid." 465 F.2d, at 1083.*fn4

I would grant the petition for a writ of certiorari and set the case for oral argument.

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