Cummings, Kerner, and Stevens, Circuit Judges. Stevens, C. J. dissenting.
This appeal raises the question whether United Air Lines, Inc. ("United") violated Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1)) by discriminating against plaintiff because of her sex.*fn1
Prior to June 19, 1966, plaintiff was employed by United as a flight cabin attendant or stewardess. On that date, she was discharged for violating a company policy in effect at that time which required that stewardesses must be unmarried.*fn2 United employed and continues to employ both male and female employees, including male flight cabin attendants or stewards on overseas flights. No policy or rule restricting employment to single males has ever been enforced. Nor have female employees other than stewardesses been subjected to any similar requirement.
In August 1966, plaintiff filed a charge with the Equal Employment Opportunity Commission alleging that her discharge constituted unlawful discrimination because of sex in violation of Section 703(a)(1) of the Civil Rights Act of 1964. Processing of this and similar charges against airlines was suspended by the Commission pending completion of hearings on the request of several airlines, including United, for a written opinion that female sex was a bona fide occupational qualification within the meaning of Section 703(e)(1) of Title VII of the Act. 42 U.S.C. § 2000e-2(e).*fn3 After extended hearings, the Commission ruled on February 23, 1968, that female sex was not a bona fide qualification for the position of flight cabin attendant and reserved resolution of questions concerning the "no-marriage" rule for "individual Commission decisions in pending charges." In August 1968, the Commission concluded that there was reasonable cause to believe that United had violated Section 703(a)(1) by discharging plaintiff. Two months thereafter, the Commission notified plaintiff of her right to sue her former employer in the district court, and this action was commenced a month later.
On cross-motions for summary judgment, the district court, 308 F. Supp. 959, found that plaintiff was discharged about June 19, 1966, because of her marriage. Although United then employed only unmarried stewardesses, it permitted its male stewards to be married. The court held that United's discharge of plaintiff was an unlawful employment practice and granted her motion for summary judgment. The court concluded that she was entitled to reinstatement, including the restoration of her seniority and longevity rights. Jurisdiction was retained in order to determine her loss of earnings and whether the same relief should be accorded to similarly discharged United stewardesses.
Simultaneously, the court entered a decree enjoining United from discriminating against plaintiff because of her sex and ordering United to restore her to employment and to pay her compensation "for all pay lost from the time of her illegal discharge on June 19, 1966, to the date of her reinstatement." David J. Shipman of the Chicago Bar was appointed master in chancery to make a recommendation for a money decree. Plaintiff was ordered to submit suggestions with respect to "the issue of whether the scope of the relief herein ordered should be made applicable to other stewardesses discharged by defendant." Further proceedings below were stayed while an interlocutory appeal was perfected pursuant to Section 1292(b) of the Judicial Code. 28 U.S.C. § 1292(b). We affirm.
United's No-Marriage Rule for Stewardesses Discriminates on the Basis of Sex
United first disputes the finding of the district court that the no-marriage rule for stewardesses involves discrimination because of sex. Relying upon Cooper v. Delta Air Lines 274 F. Supp. 781 (D.C. La. 1967), United urges that the qualification merely distinguishes between classes of employees within the job category of stewardess in the same manner as educational or physical requirements.
In 1965 the Equal Employment Opportunity Commission considered the applicability of Section 703(a)(1) to discrimination against married women and determined that
"* * * an employer's rule which forbids or restricts the employment of married women and which is not applicable to married men is a discrimination based on sex prohibited by Title VII of the Civil Rights Act. It does not seem to us relevant that the rule is not directed against all females, but only against married females, for so long as sex is a factor in the application of the rule, such application involves a discrimination based on sex." 29 CFR § 1604.3(a).
This interpretation of the Act is "entitled to great deference." Griggs v. Duke Power Co., 401 U.S. 424, 434, 91 S. Ct. 849, 28 L. Ed. 2d 158. We adopt it as both reasonable and consistent with the legislative policies and history of Title VII.
The scope of Section 703(a)(1) is not confined to explicit discriminations based "solely" on sex.*fn4 In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes. Section 703(a)(1) subjects to scrutiny and eliminates such irrational impediments to job opportunities and enjoyment which have plagued women in the past. The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class. Discrimination is not to be tolerated under the guise of physical properties possessed by one sex (cf. Cheatwood v. South Central Bell Telephone and Telegraph Co., 303 F. Supp. 754, 759-760 (M.D. Ala. 1969)) or through the unequal application of a seemingly neutral company policy. Cf. Phillips v. Martin Marietta Corp., 400 U.S. 542, 27 L. Ed. 2d 613, 91 S. Ct. 496.
Viewing the class of United's married employees, it is clear that United has contravened Section 703(a)(1) by applying one standard for men and one for women. Cf. Phillips v. Martin Marietta Corp., supra. Concededly, the marital status rule applicable to stewardesses has been applied to no male employee, whatever his position. More pointedly, no male flight personnel, including male flight cabin attendants or stewards, have been subject to that condition of hiring or continued employment.
It is irrelevant to this determination of discrimination that the no-marriage rule has been applied only to female employees falling into the single, narrowly drawn "occupational category" of stewardess. Disparity of treatment violative of Section 703(a)(1) may exist whether it is universal throughout the company or confined to a particular position. Nor is the fact of discrimination negated by United's claim that the female employees occupy a unique position so that there is no distinction between members of opposite sexes within the job category. Considerations of the peculiar characteristics of the position only pertain to the claim of a bona fide occupational qualification under Section 703(e)(1). See 29 CFR § 1604.3(b);*fn5 cf. Phillips v. Martin Marietta Corp., supra.
The Marital Status Rule Is Not Justified as a Bona Fide Occupational Qualification
United's second contention is that under Section 703(e)(1) (note 3 supra) the no-marriage rule reflects a bona fide occupational qualification for the position held by stewardesses. Its argument rests upon the acceptance of three propositions: first, the duties currently performed by stewardesses are uniquely different from those assigned to other flight personnel; second, sex constitutes a valid criterion for filling the position of stewardess; and third, the no-marriage rule may therefore be interposed as an additional requirement for such employment.
We find it unnecessary to consider the validity of United's claim that sex constitutes a bona fide occupational requirement for the job of airline stewardess. Even assuming that Section 703(e)(1) might justify hiring only females for that position, that conclusion would not automatically legitimate the no-marriage rule imposed exclusively upon stewardesses. A valid discrimination in favor of women generally in filling that occupational position need not warrant the imposition of an additional qualification which operates discriminatorily against those employees by comparison to United's male employees. United's no-marriage rule must stand upon its own feet. If, and only if, that requirement reflects an inherent quality reasonably necessary to satisfactory performance of the duties of stewardesses can the no-marriage rule be supported. See 29 CFR § 1604.3(b) (note 5 supra).
United has failed to offer any salient rationale in support of its marital status policy. The only reason specifically addressed to that rule is that United was led to impose the requirement after it received complaints from husbands about their wives' working schedules and the irregularity of their working hours. This is clearly insufficient. Section 703(e)(1) specifically requires a correlation between the condition of employment and satisfactory performance of the employees' occupational duties. The complaints of spouses do not suffice as an indicator of employee competence. Moreover, by its very terms, the narrow exception in Section 703(e)(1) calls for employers to treat their employees as individuals. United's blanket prophylactic rule prohibiting marriage unjustifiably punishes a large class of prospective, otherwise qualified and competent employees where an individualized response could adequately dispose of any real employment conflicts.
Similarly, the arguments advanced by United in support of its policy of hiring only females for this position fall short of establishing a basis under Section 703(e)(1) for its no-marriage rule. The marital status of a stewardess cannot be said to affect the individual woman's ability to create the proper psychological climate of comfort, safety, and security for passengers. Nor does any passenger preference for single stewardesses provide a valid reason for invoking ...