Duffy, Senior Circuit Judge, Fairchild and Cummings, Circuit Judges.
The plaintiff-appellant, Ann Bartmess, was a former non-supervisory employee of Drewrys Limited, U.S.A., Inc. (hereinafter referred to as Drewrys or Company). She was a member of defendant-appellee Union, No. 275. The Union was the exclusive bargaining agent for Drewrys' employees such as plaintiff. A retirement plan was adopted pursuant to a collective bargaining agreement negotiated by the Union and Drewrys. The retirement plan became effective on May 1, 1955 wherein it was agreed that female employees of the Company were to retire at age 62 and male employees were to retire at age 65.
About four and a half months before plaintiff's retirement, she filed an administrative charge with the Equal Employment Opportunity Commission (EEOC). The charge alleged that the Company and the Union were committing an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, by maintaining a retirement program which discriminated against her because of her sex.
On June 30, 1967, plaintiff passed her 62nd birthday and was retired pursuant to the terms and conditions of the retirement agreement.
On February 21, 1968, more than one year after plaintiff filed her charge with EEOC, and approximately five and a half months after her retirement, the EEOC issued guideline Section 1604.31(a) wherein it was declared that "(a) difference in optional or compulsory retirement ages based on sex violates Title VII."
Conciliatory efforts were undertaken by the parties and, being unable to reach an agreement that was satisfactory to plaintiff, the EEOC notified her on October 23, 1969 that she was entitled, on the basis of her administrative charges, to institute civil action in the District Court within a period of 30 days. Plaintiff filed this suit under Title VII of the Civil Rights Act of 1964 within that time.
Both defendants moved to dismiss the complaint on three grounds: that plaintiff's complaint was not timely filed; that the 1964 Civil Rights Act did not apply to retirement plans having different mandatory retirement ages for men and women, and that Section 1604.31 of the EEOC guidelines was arbitrary and capricious.
The District Court held the only unlawful practice charged here was the actual discharge upon retirement, and that as plaintiff had not waited until after her retirement to file her grievance, she was barred from relief. This appeal followed.
The first issue before us is whether plaintiff invoked the administrative procedure of the 1964 Civil Rights Act in a timely manner or whether she is now barred from relief because she did not wait until the actual date of her retirement before filing a charge with the EEOC. The relevant statutory provision states:
"A charge under subsection (a) of this section shall be filed within ninety days after the alleged unlawful employment practice occurred." 42 U.S.C. 2000e-5(d) (Title VII, Section 706(d)).
It is settled law that the ninety day limitation is no bar when a continuing practice of discrimination is being challenged rather than a single, isolated discriminatory act. Cox v. United States Gypsum, 409 F.2d 289 (7 Cir., 1969). Appellees concede that this is the law, but argue that the only potentially unlawful practice under a retirement plan is the actual discharge and not the overall maintenance of the plan. We disagree. We have no difficulty in concluding that the actual maintenance of a discriminatory retirement plan can be one of the acts which "adversely affect an individual's status as an employee, because of such individual's . . . sex " and that retirement plans should be viewed as "conditions of employment" within the meaning of Section 703 of Title VII (42 U.S.C. 2000e-2(a)).
The collective bargaining agreement in force at the time plaintiff filed her charge provided that female employees must retire three years prior to their male counterparts. If such a contract is found to be discriminatory, its mere presence in a collective bargaining agreement would render female workers "aggrieved persons" within the meaning ...