Employment Practices Decisions Archive: 1937 - 1995, [EMPLOYMENT-PRACTICES ¶6,002] , TERMINATION OF AIRLINE STEWARDESS AFTER MARRIAGE VIEWED AS UNLAWFUL SEX DISCRIMINATION, (June 20, 1968), Equal Employment Opportunity Commission, (Jun 20, 1968)
[EMPLOYMENT-PRACTICES ¶6,002] TERMINATION OF AIRLINE STEWARDESS AFTER MARRIAGE VIEWED AS UNLAWFUL SEX DISCRIMINATION
Decision of Equal Employment Opportunity Commission in Christina J. Neal v. American Airlines, Inc., Case
No. 6-6-5759June 20, 1968Made available for publication by Transport Workers Union, AFL-CIO (TWU).
Title VII--Civil Rights Act of 1964
Sex Discrimination--Absence of Disparity of Treatment Among Males and Females--Application of Rule to Class Based on Sex.--Unlawful discrimination in employment onthe basis of sex occurs when an employer applies a company policy or rule to a class of employees who are members of one sex because of their because of the requirements of the job. It does not matter that there is no actual disparity of treatment among male and female employees in the same job classification if the policy or rule is applied to the individuals in that job classification who are all members of one sex and such rule or policy is not applied to other employees or is generally recognized as a condition of employment.
Sex Discrimination--Airline Stewardess--Marital Restrictions--Termination of Females upon Marriage.--There was a reasonable basis for believing that an airline employer engaged in unlawful discrimination because of sex when it terminated a female stewardess because of her marriage. Since neither sex nor single status is a bona fide occupational qualification for the position of fight cabin attendant and since the employer does not require the termination of male flight personnel, such as pilots, co-pilots and flight engineers on marriage, application of the no-marriage rule to stewardesses constitutes sexbased discrimination.
Sex Discrimination--Marital Restrictions--Remedies--Application to Males.--Discrimination based on sex in the application of marital restrictions to female flight attendants cannot be adequately remedied by applying the same restrictions to members of the opposite sex.
Full Text of Decision
Summary of Charge
Charging Party alleges unlawful discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964, in that Respondent Employer terminated her employment as an airline stewardess on June 30, 1966, because she was married.
Summary of Investigation
Respondent is a corporation engaged in commercial aviation, with corporate offices in New York City, New York. Since 1947, its stewardesses have been covered by collective bargaining agreements. [1] Originally, the stewardesses were represented by Air Line Stewards and Stewardesses Association, International, a chartered affiliate of Air Line Pilots Association, International (ALPA); on July 12, 1962, Air Line Stewards and Stewardesses Association, Local 550, Transport Workers Union, AFL-CIO, became their certified collective bargaining representative. Until the 1965-1967 contract, none of the contracts contained a provision requiring the termination of stewardesses on marriage. As a matter of unilateral company policy, however, Respondent had terminated stewardesses on marriage since 1935. In 1962, when the Charging Party was hired, she was advised of this policy.
In October 1965, Respondent and the Union executed a new collective bargaining agreement, effective October 1, 1965, until December 31, 1967, [2] which contained the following provision (Article 27-c):
The Company may, at its option, release from employment a married stewardess at any time following the expiration of six (6) months after her marriage or pregnancy.
The stewardesses interpreted the provision to indicate that henceforth termination on marriage would not be automatic. Accordingly, stewardesses who had previously concealed their married status revealed it to Respondent. Respondent thereupon notified the stewardesses that under its interpretation of the contractual provision, termination after marriage would continue to be automatic. On January 6, 1966, Respondent issued the following policy statement as a memorandum addressed to “All Stewardesses”:
Re: Marriage
The following is a statement of Company policy with respect to the application of the new provision in the Agreement (Article 27-c), . . .
The Company will release from employment a married stewardess on the last day of the sixth month following the original date of marriage. It is expected that each stewardess shall advise the Company promptly, but, in any event, no later than thirty (30) days following the date of her marriage so that appropriate planning may be accomplished. Concealment from the Company of the fact of marriage was and remains a cause for discharge.
A married stewardess who, during the six (6) months following the original date of marriage becomes a widow, is divorced, or whose marriage is legally declared invalid, is not subject to the provisions of Article 27-c until or unless she remarries. . . .
Thereafter, Respondent terminated numerous stewardesses because of marriage, including the Charging Party, who was terminated on June 30, 1966. [3]
Prior to her termination, the Charging Party filed a grievance against Respondent, which Respondent rejected on the ground that the termination was in accord with Article 27-c. Subsequently, arbitration proceedings were commenced on the issue in the case of American Airlines, Inc. and Air Line Stewards and Stewardesses Association, Local 550, TWU, AFL-CIO, Case No, SS-6-66 (Nancy Wheelock Mayfield). [4] On May 22, 1967, the System Board of Adjustment reinstated the grievant without loss of seniority rights and with backpay on the ground that the proper interpretation. of Article 27-c called for the following procedure:
. . . [t]he Airline may exercise the “option” reserved to it in Article 27(c) of the Agreement in accordance with the interpretation of that provision set forth in the accompanying Opinion; namely, to make a good faith decision and judgment whether the facts with respect to the grievant’s performance in employment in the six months’ period following the date of her marriage and thereafter furnish sound grounds, related to her marriage, for her release from employment.
Thereafter, Respondent instituted suit in the U. S. District Court to vacate the decision, [5] suspended the implementation of Article 27-c pending the resolution of that action, and offered reinstatement with full seniority but without backpay to the stewardesses who had been terminated because of marriage.
Background
Since the fall of 1965, numerous charges have been filed with the Commission alleging that various airlines discriminate on the basis of sex in their employment of flight cabin attendants, sometimes referred to as stewardesses, hostesses, pursers, stewards, etc. The issues raised included the questions of whether sex was a bona fide occupational qualification for the position of flight attendant, [6] and whether the termination or reassignment of stewardesses on or shortly after marriage or on attaining certain maximum ages was unlawful discrimination based on sex. In addition, by letter dated March 25, 1966, Northwest Airlines, Inc., pursuant to section 713(b) of the Act and subsections 1601.28-1601.30 of the Commission’s procedural regulations, requested a written interpretation or opinion “that sex is a bona fide occupational qualification for the position of airline stewardess.” The Air Transport Association of America, Inc. (ATA), on behalf of its member airline carriers, subsequently joined in that request. [7]
The Commission thereafter suspended the processing of charges alleging discrimination by airlines on the basis of sex in their employment of flight cabin attendants pending a comprehensive study of the issues raised by the charges and requests for an opinion.
On September 12, 1967, a public hearing was held in the matter and testimony presented by the ATA and various airlines; the Transport Workers Union of America, AFL-CIO; the Air Line Pilots Association, International (Steward and Stewardesses Division); and a number of other organizations and individuals. Based on its consideration of the record of the September 12, 1967, hearing, the Commission published an opinion on February 24, 1968, wherein it concluded that sex was not a bona fide occupational qualification for the position of flight cabin attendant because the duties of the job could be satisfactorily performed bymembers of both sexes. [8] The Commission further stated, in footnote 5 of the opinion:
The legality of various other airline policies and practices, such as the termination or reassignment of female flight cabin attendants on or shortly after marriage or on attaining certain maximum ages, such as 32 or 35, which were raised by the pending charges and considered in connection with the September 12, 1967, hearing will be resolved through the issuance of individual Commission decisions in pending charges.
This is such a decision.
In support of the validity of Article 27-c in connection with the subject case, Respondent submitted its Final Brief before the System Board of Adjustment, in American Airlines, Inc. and Air Line Stewards and Stewardesses Association, Local 550, TWU, AFL-CIO, case No. SS-4-65 (Shirley Weiss). Respondent argued therein that the adoption of Article 27-c reflected a reasonable exercise of its judgment; that the employment of married stewardesses was not impossible but would lead to operational and administrative problems, [9] would tend to produce a deterioration in service, [10] and would cause marital difficulties for the stewardesses; [11] that Article 17-c is not contrary to public policy, but is supported by public policy factors, such as the promotion of high standards of customer service and marital stability; that similar rules have been upheld in arbitration proceedings and in court decision, and that Title VII does not involve restrictions on marriage but deals only with discrimination based on sex. [12]
In connection with the hearing on flight cabin attendants, these and other arguments in favor of the no-marriage restriction on stewardesses were made by the ATA, and arguments in opposition to the restriction were made by the unions. The ATA argued that inasmuch as the airlines apply the marital restriction only to stewardesses and not to other female airline personnel, the restriction could not be discrimination based on sex; that marital restrictions avoid the danger of having pregnant stewardesses fly; and that questions as to the marital status of stewardesses should be settled by collective bargaining. They also referred to the District Court’s decision in Cooper v. Delta Airlines, Inc., [56 LC ¶9083], 274 F. Supp. 781, wherein the court found that Delta Airlines’ discharge of a stewardess because of her marriage did not violate Title VII. [13]
The unions argued that the airline industry employs stewards today and has employed them in the past and has never terminated them for marriage, indicating that the nomarriage ban is based on sex rather than job classification; that the airline industry does not uniformly apply the no-marriage ban to female stewardesses, and that foreign airlines do not generally terminate stewardesses on marriage, indicating that the no-marriage ban is irrelevant to the performance of the job by women as well as by men; that the termination of stewardesses on marriage tends to remove from the cabin those flight attendants with experience in dealing with emergency situations; that the Federal Aviation Agency, which regulates the employment of flight attendants, and has specific regulations dealing with the number of flight attendants required on a plane, [14] emergency and emergency evacuation duties, [15] and flight attendant training, [16] has no regulation requiring the termination of stewardesses on marriage; that the Missouri Commission on Human Rights in connection with charges filed withthat agency alleging discrimination based on sex by Ozark Air Lines, which has never employed male flight attendants, stated in a letter of December 12, 1966:
The limitation upon marriage of hostesses appears to be in violation of the Federal and Missouri Fair Employment Practices Acts which prohibits the imposition of employment restrictions on the basis of sex, in the absence of a bona fide occupational qualification which warrants a limitation upon one sex or another;
that a survey of airline passengers indicated that a substantial majority of those responding opposed the no-marriage ban on stewardesses or were indifferent to it; [17] that the discriminatory termination of stewardesses on marriage is not cured by offers of ground employment; that there is a public policy against contracts in restraint of marriage; that similar rules have been invalidated in arbitration proceedings; and that there has been a recent trend toward the airlines’ elimination of no-marriage restrictions on stewardesses as a result of arbitrators’ decisions and collective bargaining.
[Reasoning]
Respondent’s argument is premised on the fact that if all the incumbents in a job classification are members of one sex, any conditions of employment relating to that job cannot be based on sex, We do not agree. The concept of discrimination based on sex does not require an actual disparity of treatment among male and female employees presently in the same job classification. It is sufficient that a company policy or rule is applied to a class of employees because of their sex, rather than because of the requirements of the job. [18] Where all the incumbents of a job are members of one sex and particular conditions of employment are applied to the individuals in that job, which are not applied to the employer’s other employees or which are not generally recognized conditions of employment, it is necessary to determine whether the conditions are relevant to satisfactory performance of the job, or are based on the sexual identity of the job holder. [19]
A consideration of the airlines’ current and past practices and policies, Respondent’s arguments in support of its termination of stewardesses on marriage, and its treatment of male flight personnel indicate that the requirement that female stewardesses be terminated on marriage is based on sex. Various airlines currently have in their employ male flight attendants or employed them in the past; no policy of termination on marriage was or is applied to them. Obviously, therefore, the requirement of single status is not related to satisfactory performance as a flight attendant but to the sexual identity of the incumbent. [20] This is also apparent from an analysis of the arguments made by Respondent in its Final Brief in the Shirley Weiss System Board of Adjustment case, referred to above. Respondent argued therein that the termination of stewardesses is warranted by the facts that our society places the responsibility for homemaking and childrearing onfemales; that the absences of married females from home on business are more disruptive of family harmony than similar absences by males; that the inability of some married stewardesses to handle the competing demands of home and job would result in inferior customer service; and that it is concerned with telephone calls from stewardesses’ husbands with regard to their wives’ absences from home, and with married stewardesses’ attempts to change schedules to suit their domestic requirements. Patently, therefore, the no-marriage rule has been adopted because female flight attendants are involved rather than because marriage disqualifies an individual from performing as a flight attendant. This conclusion is buttressed by the fact that Respondent does not require the termination of male flight personnel, such as pilots, co-pilots, and flight engineers, on marriage although they, like the stewardesses, must be absent from home on flights. [21]
It is clear that Respondent’s termination of stewardesses on marriage is part and parcel of its policy of restricting the flight cabin attendant job to women, and is a sex-based condition of employment, The Commission has previously found that sex is not a bona fide occupational qualification for the position of flight cabin attendant, and that an airline, such as Respondent, which pursues a policy of employing only females as flight attendants thereby violates Title VII. We now find that Respondent’s no-marriage restriction on stewardesses, an integral part of that policy, is likewise violative of the Act.
Respondent may, of course, lawfully terminate a stewardess who is unable to satisfactorily perform her job because of domestic responsibilities, or for any other reason, just as it terminates other employees who cannot satisfactorily perform their jobs. It cannot, however, terminate her prior to individual dereliction on her part because of its assumptions about married women as a class.
We are not convinced by Respondent’s argument that if discrimination is found, it can be remedied by applying the no-marriage rule to male flight attendants. Discrimination based on sex unrelated to job performance is not to be eliminated by applying the same irrelevant conditions to members of the opposite sex, just as discriminatorily depressed wage rates based on race are not to be eliminated by similarly depressing the wage rates paid to employees of other races.
[Conclusions]
Accordingly, reasonable cause exists to believe that Respondent violated Title VII of the Civil Rights Act of 1964, in its termination of the Charging Party on June 30, 1966, in its termination of other airline stewardesses for reasons of marriage, and in its maintenance of a policy and practice of terminating stewardesses because of marriage, as set forth in Article 27-c of its collective bargaining contract.
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