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April 19, 1974


Before Cummings, Circuit Judge, and Marovitz and McMILLEN, District Judges.


Plaintiff has asked us to invalidate former Section 215(b)(3) of the Social Security Act (42 U.S.C.A. § 415(b)(3) (1969)) on the ground that it permits females to receive more favorable retirement insurance benefits than similarly situated males. He exhausted his administrative remedies before filing this action.

According to the complaint, plaintiff was born on February 20, 1908. On October 18, 1971, at age 63, he filed an application for social security retirement benefits. He began to receive benefits in January 1972. According to the defendant's answers to plaintiff's interrogatories, plaintiff was then entitled to a monthly benefit of $195.30, whereas a female with the same birth-date and identical earnings would have been entitled to a monthly benefit of $201.70.*fn1 As of December 1972, the average monthly retirement insurance benefit for males was $179.60 and for females, $140.50.*fn2

Section 215(a) of the Social Security Act sets out a table for determining the primary old age insurance amount based on an individual's "average monthly wage" as defined in Section 215(b) of the Act. Section 215(b)(3) permitted the use of three fewer years as a basis for calculating a female wage earner's "average monthly wage" than were used in making the same calculation for a male wage earner.*fn3 The effect of decreasing the number of years used in the computation of a female's average monthly wage is to eliminate years of lower earnings, thus increasing the average monthly wage, and, in turn, the monthly retirement benefit.*fn4

The Government has filed a motion to dismiss and asserts that the benefit computation formula does not result in an unconstitutional classification based on sex.*fn5 Its position is that the discrimination in favor of females is designed to compensate for the discrimination in wages they suffered during their working years. The following examples are greatly oversimplified, but illustrate the Government's contention. If a female whose yearly earnings averaged $9,500 received, by virtue of Section 215(b)(3), the same benefits as a male who averaged $10,000, it is justified because her wages were probably held down by sex discrimination. A woman who averaged $10,000 in earnings per annum would receive more benefits than a man who averaged $10,000, but she would have presumably averaged more earnings except for discrimination in female wages. Because the average female benefit is less than the average male benefit (text at note 2, supra), the Government argues that the past wage discrimination is still not overcome.*fn6 Since the difference will be phased out by 1975 (note 4, supra), Congress has evidently decided that by then women will have worked a sufficient number of years under the Equal Pay Act (29 U.S.C. § 206(d)), Title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e-2) and related laws to make further compensation for discrimination unnecessary.

The same constitutional question presented by plaintiff was decided in favor of the Government in Gruenwald v. Gardner, 390 F.2d 591 (2d Cir. 1968), certiorari denied sub nom. Gruenwald v. Cohen, 393 U.S. 982, 89 S.Ct. 456, 21 L. Ed.2d 445. Applying the rationality test, the court upheld Section 215(b)(3) as a means of reducing sexual inequality. We cannot subscribe to the opinion in Gruenwald; it relies on cases which are probably no longer good law, and treats women with the "romantic paternalism" condemned by the plurality opinion in Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 36 L.Ed.2d 583. But we believe that Gruenwald's narrow holding is correct. The Frontiero plurality cited that holding with apparent approval:

    "It should be noted that these statutes are not
  in any sense designed to rectify the effects of
  past discrimination against women. See Gruenwald
  v. Gardner, 390 F.2d 591 (CA2 1968), cert. denied,
  393 U.S. 982, [89 S.Ct. 456, 21 L.Ed.2d 445]
  (1968); cf. Jones v. Alfred H. Mayer Co.,
  392 U.S. 409, [88 S.Ct. 2186, 20 L.Ed.2d 1189] (1968);
  South Carolina v. Katzenbach, 383 U.S. 301, [86
  S.Ct. 803, 15 L.Ed.2d 769] (1966)." 411 U.S. 689,
  n. 22, 93 S.Ct. at 1771.

We conclude that Section 215(b)(3) is a constitutionally permissible means of overcoming past discrimination. It is loosely analogous to statutes and decisions requiring differential treatment of groups to avoid perpetuating the effects of past discrimination. See Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 19-25, 91 S.Ct. 1267, 28 L.Ed.2d 554; Gaston County v. United States, 395 U.S. 285, 296-297, 89 S.Ct. 1720, 23 L.Ed.2d 309; Southern Illinois Builders Assn. v. Ogilvie, 471 F.2d 680 (7th Cir. 1972); Bowe v. Colgate-Palmolive Co., 489 F.2d 896, 900 (7th Cir. 1973); Carter v. Gallagher, 452 F.2d 315, 330-331 (8th Cir. en banc, 1972), certiorari denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338. We do not suggest that Congress is required to compensate for private discrimination. But certainly it is permissible for it to try to do so.

  "The resulting classification is grounded on the
  difference in earning power caused by past and, to
  some extent, present discrimination. The goals are
  legitimate and the classification adopted is
  reasonably related to achieving the legislative
  purpose. The reduction of economic disparity
  between the sexes provides a compelling
  governmental interest."*fn7

We adopt this quotation with only one reservation: we find it unnecessary to decide whether reduction of any economic disparity not caused by discrimination is a compelling governmental interest.

Plaintiff relies heavily on Rosen v. Public Service Electric and Gas Co., 477 F.2d 90 (3d Cir. 1973), but that case did not even involve equal protection as embodied in the due process clause of the Fifth Amendment. Quite rightly, Rosen held that a private retirement pension plan favoring females violated Section 703(a)(1) of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-2(a)(1)). In Rosen, the defendant did not contend that its plan compensated for previous wage discrimination, and the nature of the plan makes clear that that could not have been its rationale. The other cases cited in plaintiff's brief are equally distinguishable.

The remaining issue is whether the extent to which the formula of Section 215(b)(3) benefits women is reasonably related to the amount of wage discrimination suffered by women. Plaintiff argues that not all women suffered discrimination, and those that did were victimized in differing amounts, so that compensation can be made only after individual determinations of the amount of discrimination suffered by each working woman.

We of course adhere to the Supreme Court's holdings that administrative convenience cannot justify sex discrimination. Frontiero, 411 U.S. at 690, 93 S.Ct. 677; Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225. But the individual determinations suggested by plaintiff would not be just administratively inconvenient; they would be impossible. They would require a hearing for each woman who applied for social security to determine what her earnings in each year since 1950 would have been had there been no sex discrimination. It is difficult enough, and sometimes impossible, to determine what a woman would have been paid for the job she held applying the rules and policies relevant to male employees of the business in which she worked. See Bowe v. Colgate-Palmolive Co., 489 F.2d 896 (7th Cir. 1973), where it was said, "It is clear to all, as found by the district court, that it would be impossible to reconstruct the employment history of each employee as if no discrimination existed * * *." 489 F.2d 901. To go further, and try to determine what a woman would have made if all occupations had been equally open to her at the rate of pay prevailing for males, is an attempt Congress could choose not to require. To try to make that determination not just for the recent past, but for every year since 1950, including the effects of pre-1950 discrimination on later earnings, for ...

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