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AGO 1971 No. 42 - December 20, 1971
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Slade Gorton | 1969-1980 | Attorney General of Washington

EMPLOYEE‑EMPLOYER-HOUR LIMITATIONS FOR FEMALE EMPLOYEES IN DESIGNATED AREAS

(1) In view of the prohibitions against discrimination on the baisis of sex in employment which are contained in Title VII, of the Federal Civil Rights Act of 1964 (42 U.S.C. § 2000e‑2), in RCW 49.12.200, and in RCW 49.60.180, an employer who is covered by the eight-hour day provisions of RCW 49.28.070 may permit his female employees to work a week comprised of four ten-hour work days in lieu of the customary work week consisting of five eight-hour days.   

(2) An employer who is covered by RCW 49.28.070 and 42 U.S.C. § 2000e‑2 may require his female employees working within the designated areas listed therein to work a four-day, forty-hour work week if such employer requires his male employees to do so; and the employer may exclude those females from his employment who are unwilling to work this schedule.

(3) An employer who is covered by RCW 49.28.070 and one or both of the state antidiscrimination statutes (RCW 49.12.200 or RCW 49.60.180) but not by 42 U.S.C. § 2000e‑2, may not require his female employees working within the designated areas listed in RCW 49.28.070 to work a four-day, forty-hour work week; and such an employer may not exclude females from employment solely in order to establish a uniform four-day, forty-hour work week for all of his covered employees.  In such a case, the employer's ability to establish such a uniform work week will depend upon the willingness of his female employees to accede to this schedule.

                                                              - - - - - - - - - - - - -

                                                               December 20, 1971

Honorable Harry B. Lewis
State Senator, 22nd District
2019 Clairemont Circle
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1971 No. 42

Dear Sir:

            You have requested the opinion of this office on several  [[Orig. Op. Page 2]] questions relating to the employment of women.  We paraphrase the questions raised by your request as follows:

            (1) In view of the prohibitions against discrimination on the basis of sex in employment contained in Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C. § 2000e‑2), in RCW 49.12.200, and in RCW 49.60.180, may an employer covered by the eight-hour day provisions of RCW 49.28.070 and by one or more of these antidiscrimination lawspermit his female employees to work a week comprised of four ten-hour work days in lieu of the customary work week consisting of five eight-hour days?

            (2) May an employer covered by the eight-hour day provisions of RCW 49.28.070 and by one or more of the above noted antidiscrimination lawsrequire his female employees to work such a four-day, forty-hour work week as is described in question (1)?

            (3) If question (2) is answered in the negative, may the employer lawfully exclude females from employment in order to establish a uniform four-day, forty-hour work week policy for all of its employees?

            We answer question (1) in the affirmative and questions (2) and (3) in the manner set forth in our analysis.

                                                                     ANALYSIS

            Recently, a number of employers and employees in this state and elsewhere have become interested in changing from a standard forty-hour work week comprised of five eight-hour days to one of four ten-hour days.  You have asked, basically, the extent to which RCW 49.28.070, which limits the working hours of women to eight hours per day in certain occupations, inhibits the implementation of this "4/40" work week.1/

             RCW 49.28.070 codifies the provisions of § 1, chapter 37,  [[Orig. Op. Page 3]] Laws of 1911, and states that:

            "No female shall be employed in any mechanical or mercantile establishment, laundry, hotel, or restaurant for more than eight hours during any day.  The hours of work may be so arranged as to permit the employment of females at any time so that they shall not work more than eight hours during the twenty-four:Provided, That this section shall not apply to, or affect, females employed in harvesting, packing, curing, canning, or drying any variety of perishable fruit or vegetable, or to females employed in canning fish or shellfish, or to females employed in an administrative, executive or professional capacity: . . ."

            Obviously, we start with the proposition that this statute poses no barrier whatsoever to a "4/40" work week for women in those areas of employment which are outside of its scope.  On the other hand, read alone, it clearly would prohibit the employment of women on such a work week schedule in any of the areas of employment to which it applies ‑ with the result that, if this were the only statute involved, an employer covered by it could establish such a work week for his men but could neither permit nor require his women to work the same schedule.  However, RCW 49.28.070 is not, of course, the only statute to be considered in answering your questions; elsewise, we assume that they would not have been asked.

            In addition to being governed by this eight-hour day limitation with respect to the employment of women, the employer in question may be governed by at least one and possibly all three of the following statutory prohibitions against discrimination on the basis of sex in employment:

            RCW 49.12.200:2/

            "That hereafter in this state every avenue of employment shall be open to women; and any business, vocation, profession and calling followed and pursued  [[Orig. Op. Page 4]] by men may be followed and pursued by women, and no person shall be disqualified from engaging in or pursuing any business, vocation, profession, calling or employment or excluded from any premises or place of work or employment on account of sex."

            RCW 49.60.180:3/

            "It is an unfair practice for any employer:

            "(1) To refuse to hire any person because of such person's age,sex, race, creed, color, or national origin, unless based upon a bona fide occupational qualification.

            "(2) To discharge or bar any person from employment because of such person's age,sex, race, creed, color, or national origin.

            "(3) To discriminate against any person in compensation or in other terms or conditions of employment because of such person's age, sex, race, creed, color, or national origin:  PROVIDED, That it shall not be an unfair practice for an employer to segregate washrooms or locker facilities on the basis of sex, or to base other terms and conditions of employment on thesex of employees where the board by regulation or ruling in a particular instance has found the employment practice to be appropriate for the practical realization of equality of opportunity between the sexes.

            ". . ."  (Emphasis supplied.)

            42 U.S.C. § 2000e‑2:4/

            "(a) It shall be an unlawful employment  [[Orig. Op. Page 5]] practice for an employer ‑

            "(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

            "(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin."  (Emphasis supplied.)

            As discussed at some length in AGO 1970 No. 9 [[to Frank Foley, State Senator on May 26, 1970]], copy enclosed, the last of these three statutes only applies to those employers engaged in inter-state [[interstate]]commerce who have twenty-five or more employees for each working day in each of twenty or more calendar weeks of the year.5/

             The scope of the second statute, RCW 49.60.180, derives from its reference to the designated conduct for "an employer."  This is an expressly defined term for the purposes, generally, of our state law against discrimination ‑ chapter 49.60 RCW.  Specifically, "employer" is defined by RCW 49.60.040 to include:

            ". . . any person acting in the interest of an employer, directly, or indirectly, who has eight or more persons in his employ, and does not include any religious or sectarian organization, not organized for private profit;

            ". . ."

            As for RCW 49.12.200, although this early, 1890, statute has never been judicially construed it appears, on its face, to be of universal application; however, unlike the other two  [[Orig. Op. Page 6]] sex discrimination statutes, this one has no penalty for its violation.

            Although the applicabilty of each of these statutes differs, it is important to note that all of them (like RCW 49.28.070 itself) were enacted in furtherance of the cause of women's rights ‑ a fact of which a court, if called upon to consider the relationship between them, would seemingly be empowered to take judicial notice.6/

             In so far as the relationship between RCW 49.28.070 and 42 USC § 2000e‑2 is concerned, this was the primary subject of AGO 1970 No. 9, supra, wherein we concluded as follows:

            "(1) An employer in this state who is governed by Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C., § 2000e‑2) may not invoke the provisions of RCW 49.28.070 and WAC 296-128-440 as a justification for refusing to hire or promote women solely on the basis that the working conditions involved in the job they are seeking are such as to preclude the employment of women under such state provisions.

            "(2) An employer who is governed by Title VII of the Federal Civil Rights Act of 1964 (42 U.S.C., § 2000e‑2) is excused from compliance with the provisions of RCW 49.28.070 and WAC 296-128-440 to the extent that these state provisions are in conflict with the federal act."

             [[Orig. Op. Page 7]]   In large part, these two conclusions were based upon the supremacy clause of the United States Constitution7/ under which a valid federal statute takes precedence over a state statute in so far as the two are in conflict.  Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 6 L.Ed. 23 (1824); Pennsylvania v. Nelson, 350 U.S. 497, 100 L.Ed. 640, 76 S.Ct. 477 (1956);Copper v. Aaron, 358 U.S. 1, 3 L.Ed.2d 5, 78 S.Ct. 1401 (1958).  However, this clause, of course, only pertains in the case of a conflict between a state and a federal statute and has no applicability with regard to a conflict between two or more statutes of the same state; e.g., RCW 49.28.070 and either RCW 49.12.200 or RCW 49.60.180.  In the case of the latter type of conflict, resort must, instead, be made to certain rules of statutory construction which have been established by the courts over the years, because all acts of the legislature are of the same legal rank, and nothing in the Washington constitution says which shall prevail when two conflict.

            The rules from the case law are these:  If two statutes on the same subject are irreconcilable, the one that is later in time prevails, since it is the last expression of legislative will, and the earlier statute is impliedly repealed.  Great Northern Railway Co. v. Glover, 194 Wash. 146, 77 P.2d 598 (1938);Paine v. State, 156 Wash. 31, 286 Pac. 89 (1930).  Implied repeals are not favored, however, and the courts will try to harmonize the statutes if possible to maintain the integrity of each.  Beach v. Board of Adjustment, 73 Wn.2d 343, 438 P.2d 617 (1968).  A prior statute is not impliedly repealed by a subsequent statute unless the later statute was evidently intended to supersede the earlier one and the statutes are clearly inconsistent so that they cannot be reconciled and both given effect by fair and reasonalbe construction.  Babcock  [[Orig. Op. Page 8]] v. School District No. 17, 57 Wn.2d 578, 358 P.2d 547 (1961).  Finally, while the courts do not always say so in their opinions, the results of the cases indicate that these rules are applied flexibly to achieve a result that is sensible and not absurd or strained.  We turn, then, to this task with regard to the conflicting state statutes presently at hand.

            Obviously, as we have seen, men are free in this state to work a four-day, forty-hour work week, since no equivalent to RCW 49.28.070, applicable to males, bars this.  But if men can work on such a schedule, is it not discrimination based on sex to forbid women to do the same?  Was not RCW 49.60.180, the new 1971 antidiscrimination statute, amended precisely to prevent such discrimination?  Did it not therefore (to the extent of conflict) repeal by implication RCW 49.28.070, the statute forbidding women to work for longer than eight hours in any one day?  And what about RCW 49.12.200, the old, 1890, sex discrimination law which remained in effect even with the passage in 1911, of this eight-hour work day limitation?

            We will deal first with the relationship between RCW 49.28.070 and RCW 49.60.180 remembering, as noted earlier, that both of these statutes were passed in attempted furtherance of women's rights.  With this in mind, the means of reconciliation of these two statutes follows, we think, quite logically.  The four-day, forty-hour work week is currently conceived as being beneficial to the welfare of the employees affected.  Since male employees may concededly work on this schedule, if an employer refuses to allow female employees the same privilege ‑ invoking RCW 49.28.070 as justification for his refusal ‑ he will clearly be discriminating against the latter on the basis of sex.  This sort of discrimination is precisely what RCW 49.60.180 is aimed to outlaw, and to the extent that the literal language of RCW 49.28.070 would seem to require such discrimination, this earlier enactment must be considered to have been superseded by RCW 49.60.180, the antidiscrimination statute.

            Such a result, though it of necessity disregards the literal language of RCW 49.28.070 (the law forbidding women to work for longer than eight hours in any one day) paradoxically carries out its fundamental purpose, which was to further the position of women.  If, despite the passage of the 1971 amendments to RCW 49.60.180 (the antidiscrimination statute), the literal language of the earlier enactment were followed, the opposite result would be reached, and the cause of women's rights hindered rather than advanced.  In effect, one would be saying to female employees, "Although this enterprise  [[Orig. Op. Page 9]] plans to function on a four-day, forty-hour work week basis, you, as women, may not join us on this schedule, as you are forbidden by law to work more than eight hours a day ‑ though, if your were men, you would unquestionable have this privilege."

            Moreover, it would not seem to be of any significance even if a given enterprise seeking to change to a four ten-hour work-day schedule employs only women.  The discrimination struck down by RCW 49.60.180 is discrimination against women as a group, and if men as a group are entitled to benefit from this different work week, it should be available to women as well.

            In so far as the relationship between RCW 49.28.070 and the earlier RCW 49.12.200 is concerned, we think that much the same approach to reconciliation is applicable.  It is interesting that these two statutes have coexisted for sixty years without generating a reported court case dealing with their relationship.  A possible explanation for this may be that the legislature has never prescribed any penalty for violating RCW 49.12.200, and it has not charged any administrative agency with enforcing it.  While the statute probably supports a civil action for damages or injunctive relief by a person who has been denied its benefits, it has not even generated any litigation of this type, so far as we are aware.

            In one sense, RCW 49.28.070 is actually even more easily reconciled with RCW 49.12.200 than it is with the 1971 sex discrimination law, RCW 49.60.180, because both of these old statutes can be given full effect without carving out an exception to either.  The laws on maximum hours for women were intended to protect women workers from exploitation, not to reduce their opportunities for work.  Most importantly, it would be unreasonable, (at least in terms of present day values) to hold that the eight-hour day law partially superseded the earlier employment rights law.  Both statutes date from the two decades surrounding the turn of the century.  Collective bargaining and direct governmental regulation of working conditions have largely corrected the evils at which the eight-hour day law was directed, but equal employment rights for women have not yet been realized and we are presently experiencing a resurgence of interest in that subject.  It would be incongruous to hold that the later "old" statute which is out of step with present times supersedes the earlier "old" statute  [[Orig. Op. Page 10]] which is in step with our times.

            We therefore conclude that RCW 49.28.070 did not repeal RCW 49.12.200 by implication.  An employer who is subject to the former must comply with the latter as well.

            Question (1):

            This leads us, then, to our direct answer to your first question (as we have paraphrased it).  If an employer who is covered by RCW 49.28.070 establishes a four-day, forty-hour work week for his male employees but does not permit his women to work this schedule as well, this employer will be guilty of an employment discrimination against the women.  If the employer is covered by the federal antidiscrimination act, 42 USC § 2000e‑2, we have already seen that he may not invoke RCW 49.28.070 as a justification for refusing to employ women on the jobs to which this work schedule is made applicable.  AGO 1970 No. 9,supra.  And even if the employer is only covered by one or both of the two state antidiscrimination acts which we have discussed herein, he must avoid saying, in effect, to his female employees "although the men will henceforth work a four-day, forty-hour work week, you women may not do so because you are women."

            Thus, to give full effect to the spirit of all of the laws involved, we conclude, in response to this initial question, that an employer who is covered by the eight-hour day provisions of RCW 49.28.070 and by one or more of the state or federal antidiscrimination laws may permit his female employees to work a "4/40" week if any of them desire to do so.

            Questions (2) and (3):

            Your second and third questions present an entirely different problem.  In considering whether an employer to whom both RCW 49.28.070 and one or more of the subject antidiscrimination statutes apply may require his female employees to work a four-day, forty-hour work week, or may exclude them from his employment if they are unwilling to do so, it is important to remember that RCW 49.28.070 ‑ the eight-hour day statute ‑ is by no means a dead letter.  It continues in force in those cases in which its operation would not amount to an illegal discrimination under  [[Orig. Op. Page 11]] the terms of either the federal or state antidiscrimination statutes.  What, then, of the hypothetical situation where a woman allegates that her employer isrequiring his work force to go on a four-day, forty-hour work week, and she finds herself unable to meet this schedule, so that if it is adopted, she will have to surrender her job?

            If, in addition to being covered by RCW 49.28.070, the employer in question is also required to adhere to the federal antidiscrimination act, 42 U.S.C. § 2000e‑2,supra, the answer to this question is to be found in our analysis of the relationship between these two enactments in AGO 1970 No. 9,supra.  On the one hand, as discussed above, an employer covered by both statutes who has established a four-day, forty-hour work week may not invoke RCW 49.28.070 as a justification for refusing to employ women on the jobs to which this work week schedule is made applicable.  But by the same token, and in view of the position of supremacy which must be granted to the federal enactment in the event of any conflict with our state statute, we said in this prior opinion that an employer who is governed by the federal antidiscrimination statute ". . . is excused from compliance with the provisions of RCW 49.28.070 . . ." to the extent that this state provision is in conflict with the federal act.  This means, then, that where the particular employer is covered by 42 U.S.C. § 2000e‑2, that employer may not only permit but may, as well, require his female employees to work the same schedule as he requires his male employees to work ‑ and may, lawfully, exclude from his employment those women who are unwilling to comply with this requirement.

            However, perhaps somewhat ironically, a different result appears to be dicated when dealing with an employer who, in addition to being covered by RCW 49.28.070,supra, is only covered by one or both of our state antidiscrimination statutes ‑ RCW 49.12.200 and RCW 49.60.180.  Here, our watchword of statutory construction is reconciliation, to whatever extent is possible.  Accord,Beach v. Board of Adjustment, supra.  As long as RCW 49.28.070 (the eight-hour day statute) remains on the books along with these two other state statutes, and this principle of reconciliation is applied, women will continue to be entitled to the benefits of the first of these three state statutes.  Therefore, because the employer in this situation will not be able to invoke the supremacy of a conflicting federal enactment as a justification for noncompliance with the state protective  [[Orig. Op. Page 12]] statute, he will in this instance have to adhere to the statute's mandate.  This means, in essence, that such employer may not require his women employees to work more than eight hours per day without their individual consent; moreover, it also means that the employer may not refuse employment to women applicants because of their unwillingness to work on a different schedule such as a four-day, forty-hour work week.  Thus, even if all of the employer's present women employees are willing to work a "4/40" work week, new employees within this category may not be refused jobs with the employer because of their unwillingness to go along with this program.8/

                        SUMMARY

            Because of the complexity of the foregoing analysis, we believe that a brief review of our conclusions might be helpful before closing.  Essentially, the propositions which we have stated in this opinion, based upon the statutes currently in effect, are as follows:

            (1) In view of the prohibitions against discrimination on the basis of sex in employment which are contained in Title VII, of the Federal Civil Rights Act of 1964 (42 U.S.C. § 2000e‑2), in RCW 49.12.200, and in RCW 49.60.180, an employer who is covered by the eight-hour day provisions of RCW 49.28.070 may permit his female employees to work a week comprised of four ten-hour work days in lieu of the customary work week consisting of five eight-hour days.

            (2) An employer who is covered by RCW 49.28.070 and 42 U.S.C. § 2000e‑2 may require his female employees working within the designated areas listed therein to work a four-day, forty-hour work week if such employer requires his male employees to do so; and the employer may exclude those females from his employment who are unwilling to work this schedule.

            (3) An employer who is covered by RCW 49.28.070 and one or both of the state antidiscrimination statutes (RCW 49.12.200  [[Orig. Op. Page 13]] or RCW 49.60.180) but not by 42 U.S.C. § 2000e‑2, may not require his female employees working within the designated areas listed in RCW 49.28.070 to work a four-day, forty-hour work week; and such an employer may not exclude females from employment solely in order to establish a uniform four-day, forty-hour work week for all of his covered employees.  In such a case, the employer's ability to establish such a uniform work week will depend upon the willingness of his female employees to accede to this schedule.

            We trust the foregoing will be of some assistance to you.9/

            Very truly yours,

SLADE GORTON
Attorney General


PHILIP H. AUSTIN
Deputy Attorney General

                                                         ***   FOOTNOTES   ***

1/Your have also asked that we analyze any other statutes that might also prevent a ten-hour day for women, but we have found none.  There are regulations requiring an eight-hour day for women, see, e.g., WAC 296-128-450, but they implement RCW 49.28.070, and hence need no separate discussion.

2/Section 1, p. 519, Laws of 1890.

3/Section 7, chapter 37, Laws of 1957, as last amended by § 3, chapter 81, Laws of 1971, 1st Ex. Sess.

4/As contained in Title VII of the Federal Civil Rights Act of 1964.

5/42 U.S.C. § 2000e.

6/". . . Similarly, the courts may take judicial notice of all facts leading up to, coincident with, and in any way connected with, the passage of the act, in order that they may properly interpret the legislative intent. . . ." 20 Am.Jur., Evidence, § 41.

            "When the purpose of a statute is a matter of common knowledge, judicial notice may be taken of such purpose."  1 Jones on Evidence, § 133, p. 226.

7/Article VI, P 2 of the United States Constitution reads:

            "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding."

8/This does not necessarily mean that any woman refusing to work a "4/40" work week must, instead, be afforded a five‑day, eight-hour per day, forty-hour week.  As an alternative, the employer could, legally, simply employ these women on a four-day, eight-hour per day, thirty-two hour work week at proportionately less pay.

9/In recognition of the administrative difficulties which the foregoing conclusions may pose to all employers interested in adopting a four-day, forty-hour work week, and particularly to those employers who may only permit but not require adherence to a "4/40" work week on the part of their women employees, you have asked us to prepare a draft bill designed to amend RCW 49.28.070 so as to establish a single, uniform standard for all employers of women who are covered by this statute.  We have done so and are enclosing the same herewith.

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