Case: Mengelkoch v. Industrial Welfare Commission

This is a case that came to the Clearinghouse from the Papers of David Marlin. It's part of the Civil Rights Division Archival Collection. Because it predates PACER, we have limited information about the procedural history of the case.

On October 10, 1966, three female employees of North American Aviation, Inc. filed this lawsuit in the United States District Court for the Central District of California. They sued North American Aviation and California’s Industrial Welfare Commission on behalf of themselves and those similarly situated under Title VII of the Civil Rights Act of 1964 and the Declaratory Judgment Act, 28 U.S.C. § 2201. The plaintiffs challenged § 1350 of the California Labor Code, which barred women from working more than eight-hour days or forty-eight-hour weeks, and sought to enjoin North American Aviation from enforcing it. They claimed that limiting womens’ hours constituted sex discrimination that violated Title VII and the Equal Protection Clause of the Fourteenth Amendment.

The Department of Justice (DOJ) was conflicted about how to respond to the lawsuit. Owen M. Fiss, a Special Assistant in the DOJ’s Civil Rights Division, sent Assistant Attorney General John Doar a memorandum that analyzed the case on February 14, 1967. Fiss noted that the Equal Employment Opportunity Commission believed that laws “protecting women against exploitation and hazard” were generally nondiscriminatory and had declined to support the suit. He also observed that § 1350 was one of the few laws that protected California’s minority and low-income women from predatory employment practices. Nevertheless, Fiss left open the possibility of backing an as-applied challenge. There's nothing in the available documents, however, to suggest that the federal government ended up taking any position in the lawsuit.

A three-judge district court heard the case because it involved a constitutional challenge to a state statute. On May 10, 1968, District Judge Albert Lee Stephens, Jr. granted defendants’ motion to dissolve the three-judge panel. Judge Stephens found that the plaintiffs’ constitutional claim was insubstantial because cases like Muller v. State of Oregon established that regulations reflecting “woman’s physical structure, her maternal functions, and the vital importance of her protection in order to preserve the strength and vigor of the race” were constitutional. He also rejected plaintiffs’ argument that “times have changed” because “the principle of stare decisis must ultimately control.” 284 F. Supp. 950.

Judge Stephens, now sitting by himself, quickly disposed of the plaintiffs’ remaining claims. He decided that laws treating men and women differently did not discriminate based on sex provided that they had a rational basis, even if “[r]easonable men may differ in opinion” as to their benefits. As such, Judge Stephens found that interpreting § 1350 to conform to federal law was primarily a state court issue. He invoked the doctrine of abstention and dismissed the case. 248 F. Supp. 956.

The plaintiffs appealed both of Judge Stephens’ orders directly to the Supreme Court. In a brief per curiam opinion issued on October 28, 1968, the Supreme Court declined to hear the appeal and directed the plaintiffs to seek relief in the Ninth Circuit. 393 U.S. 83.

One named plaintiff appealed to the Ninth Circuit. On January 11, 1971, Circuit Judge Frederick George Hamley issued an opinion rejecting the district court’s reasoning. He distinguished the plaintiff’s equal protection claim from the Supreme Court’s due process precedent and observed that the societal and legal context had changed markedly from the turn of the twentieth century. Judge Hamley also found § 1350 too unambiguous to apply the abstention doctrine. He remanded the case to the three-judge panel for further proceedings. 442 F.2d 1119.

However, there is little evidence of what, if anything, happened after remand. One possible explanation is that § 1350 was struck down by different judges before the panel could rule. See, for example, Homemakers, Inc. of Los Angeles v. Div. of Indus. Welfare, 509 F.2d 20 (9th Cir. 1974) (invalidating § 1350); Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972) (awarding back pay to female employees after California conceded that § 1350 conflicted with federal law); Rosenfeld v. S. Pac. Co., 293 F. Supp. 1219 (C.D. Cal. 1968) (invalidating § 1350), aff’d 444 F.2d 1219 (9th Cir. 1971).