THE COURT. How did you get around the language of the Supreme Court that man is or should be woman's protector and defender. The natural and proper timidity and delicacy belongs to the female sex (sic) evidently unfits it for many of the occupations of Civil Rights (sic). How did you get around that?

Mrs. ROBERTS. It wasn't easy Judge *****

Transcript, p. 110.

In addition to the difficulty of the issues, the case was the first to reach any Court of Appeal in the country with respect to sex discrimination under Title VII, and the appeal was from an adverse decision based on current precedents and the persuasive contention that Lorena Weeks should be protected from a "strenuous" job, which would pay her substantially more than her "woman's job." Because of a number of decisions upholding discrimination on the basis of sex in other areas, analogies to other fields of law were difficult to find, and necessitated a creative approach in arguing for reversal of the trial court. B. The result achieved

In holding that defendant had violated Title VII, the court analyzed the intent of the legislation, in particular, the bona fide occupational qualification. Recognizing that a narrow construction was the sole method by which the prohibition against sex discrimination in employment could be realized, the court formulated this doctrine :

66 ** in order to rely on the bona fide occupational qualification exception, the employer has the burden of proving that he has reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved." Weeks v. Southern Bell Telephone and Telegraph Co., supra, at p. 235.

Since women come in all shapes, sizes and strengths, this test will not likely be met except in the rarest of instances, and thus equal opportunity in employment is secured. Had the exception been broadly interpreted as in the lower court's ruling in Bowe, the entire purpose of Title VII would have evaporated. Employers' subjective reasons e.g., no woman has ever held that job before; fellow employees won't like it; I don't think any women want that sort of job, and so forth, would have barred women from promotions to high paying jobs, or from being considered for "men's jobs."

Instead, this court repudiated such stereotyped thinking, and opened the door to equal opportunity to women with this forceful statement:

"Moreover, Title VII rejects just this type of romantic paternalism as unduly Victorian and instead vests individual women with the power to decide whether or not to take on unromantic tasks. Men have always had the right to determine whether the incremental increase in remuneration for strenuous, dangerous, obnoxious, boring or unromantic tasks is worth the candle. The promise of Title VII is that women are now to be on the bona fide occupational qualification exception Congress intended to renege on that promise."

Id., at p. 236.

These principles have been cited and relied upon in numerous cases which followed, not only arising under Title VII, but also the Equal Pay Act and

a Judge Lawrence was referring to language from the opinion of Muller v. Oregon, 208 U.S. 412 (1908), a case relied upon by the defendant in its brief on appeal to this court, together with other decisions of the Supreme Court designed to "protect" women e.g., Goesaert v. Cleary, 335 U.S. 464 (1948). Testifying to the strength of this outlook is the fact that it was not until 1971 that the Supreme Court struck down a statute discriminating on the basis of sex as offending the Fourteenth Amendment to the Constitution, Reed v. Reed, -U.S.-, 92 S. Ct. 251 (1971). It has been posited that in order for discrimination to rise to the level of "suspect" there must be an awareness on the part of a sufficiently large segment of the population that such classifications are probably irrational and destructive, Bastardo v. Warren, 332 F. Supp. 501 (W.D. Wis. 1971) at p. 504. A recent indication of such awareness may be found in a Resolution passed by the House of Delegates of the American Bar Association, February 8. 1972 supporting constitutional equality for women and urging extension of legal rights, privileges and responsibilities to all persons without regard to sex.

state cases.10 The information distributed by the Equal Employment Opportunity Commission also makes reference to the rule in Weeks, "Toward Job Equality for Women," p. 4. The effect of this holding takes it beyond the denomination of a class action which would affect only the employees in one plant.

Not only did the case have far reaching influence as to the delineation of the bona fide occupational qualification, but also established a precedent bearing on the elements of appropriate relief. There had been much controversy over awarding back pay when a state "protective" regulation had been in force, with most of the decisions denying such relief, Rosenfeld v. Southern Pacific Company, 293 F. Supp. 1218 (C.D. Cal. 1968); Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D. Ore. 1969). Through months and months of negotiation, plaintiff maintained that she should receive all that she lost on account of defendant's discrimination, in accordance with the standard applied in Labor Board cases, Trinity Valley Iron & Steel Company v. N.L.R.B., 410 F.2d 1161 (5 Cir. 1969), and eventually her perserverance was vindicated. The consent decree is now being used by other persons seeking appropriate relief after a finding of breach of Title VII is made.

It is submitted that the District Court issuing the Order Awarding Counsel Fees, being the third District Judge to preside over this case, possibly did not have an opportunity to appraise the result factor in this case, and that such omission should be revised in light of such authorities as Ratner v. Bakery & Confectionery Wkrs. Int'l Union, 354 F.2d 504 (D.C. Cir. 1965); and Freeman v. Ryan, 408 F.2d 1204 (D.C. Cir. 1968).

C. Employment lost because of the undertaking of this litigation

This criterion takes into account the very real consequence of loss of remuneration from other clients while engaged in protracted litigation. In the instant case, Mrs. Weeks' court appointed attorney, advised her he would not represent her on an appeal, and she had no means of retaining a lawyer. She was able to get in contact with the Chairwoman of the Legal Committee of the National Organization for Women, Marguerite Rawalt in Washington, D.C. to seek assistance. Present counsel, who resides in Baton Rouge, Louisiana, agreed to represent Mrs. Weeks in January of 1968 although the case arose in the Southern District of Georgia.

The problems of communication over a distance of several hundred miles increased following remand of the case, and time spent in travel and being away from the office was considerable. No local counsel in Georgia was available to be present at conferences or interview witnesses prior to the hearings on February 17, 1970 and April 19, 1971. The loss of other business when there is only one lawyer handling a case in another state is readily apparent and should have been weighed.

In the Clark case, wherein multiple counsel participated, the court noted that "* ** perhaps a major part of plaintiff's counsel came from a lawyer who works on the staff of the NAACP Legal Defense and Educational Fund, Inc." Id., at p. 711; however, this fact was not regarded as decreasing the defendant's obligation to pay reasonable attorney fees. Counsel herein has not ever belonged to any organization on which she served as a paid staff member, and necessarily defrayed the costs of handling this litigation personally as well as losing other opportunities for legal work.

D. The nature and length of the professional relationship with the client

Mrs. Weeks being a life-long resident of the State of Georgia, the chances of her requiring counsel's services again in a federal court action are slim. Any other type of legal proceeding in the state court could not be handled by counsel either for Mrs. Weeks or any other person whom she might refer to counsel. This criterion was not mentioned by the court in setting the fee and seemingly was not included in the court's deliberations.

10 A partial list of the cases includes Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971); Rosenfeld v. Southern Pacific, 444 F.2d 1219 (9 Cir. 1971); Diaz v. Pan Am. World Airways, 442 F.2d 385 (5 Cir. 1971); Rosen v. Public Service Electricity and Gas Co., 328 F. Supp. 454 (D. N.J. 1971); Austin v. Reynolds Metals Co., 327 F. Supp. 1145 (E.D. Va. 1970); Cheatwood v. Southcentral Bell Tel. & Tel. Co., 303 F. Supp. 754 (M.D. Ala. 1969); Equal Pay cases are Shultz v. Wheaton Glass Co., 421 F.2d 259 (3 Cir. 1970); Shultz v. Saxonburg Ceramics, Inc., 314 F. Supp. 1262 (W.D. Pa. 1970); state decision: New York State Division of Human Rights v. New York-Pennsylvania Professional Baseball League, 39 U.S.L. W. 2661 (1971).

E. Customary charges of the bar for similar services

The affidavits furnished by plaintiff's counsel speak of a fee of $40.00 per hour, and as Mr. Bankston observed, this figure is for routine matters, not cases of first impression. Defendant presented no evidence which would refute this figure, only testimony based on scanty study as to what other lawyers postulated would be the time involved. The case cited in the Order Awarding Counsel Fees, Massachusetts Mutual Life Insurance Company v. Brock, 405 F.2d 429 (5 Cir. 1968), held that the counsel for the trustee in a bankruptcy matter should be reduced to $50.00 per hour. Nothing in the Order explains why only half of this hourly amount was awarded herein. In what was termed a simple Jones Act case, the sum of $60.00 per hour was granted in Paolillo v. American Export Isbrandtsen Lines, Inc., 305 F. Supp. 250 (S.D.N.Y. 1969). Work done at the trial level in a federal securities violation case merited $46.00 per hour in Moerman v. Zipco., Inc., 302 F. Supp. 439 (E.D.N.Y. 1969). In view of the uncontested affidavits and the decisions awarding substantially more per hour in well settled areas of law, it is urged that the amount set in the case at bar is clearly inadequate.

II. THE COURT'S AWARD IS INCONSISTENT WITH OTHER ATTORNEY FEE AWARDS IN RECENT TITLE VII CASES, AND WILL HAMPER THE ENFORCEMENT OF TITLE VII AND OTHER CIVIL RIGHTS ACTIONS

It is counsel's position that the action of the court below in citing Clark v. American Marine Corp., supra, and then awarding less than was granted in that case erodes the strength of the Clark holding. An examination of the factors in that case reveal that it dealt with race discrimination which is prohibited without a qualifying exception by Title VII. Injunctive relief without backpay was recovered following a "relatively short" trial, Id., at p. 172. Counsel submitted a statement for $19,400.00 and were awarded $20,000.00. In setting the fee, the court specifically relied on the Canons of Legal Ethics. Since there was no money damages received by plaintiffs, the contingent fee aspect apparently used to a great extent herein, could not have been the paramount consideration.

In addition to calling Clark into question as a proper formula for assessing fees, the Order in this case falls far short of the decree in Rosenfeld v. Southern Pacific Company, 4 FEP Cases 72 (C.D. Cal. 1971). Rosenfeld did involve an issue of precedential significance in that a state protective law was invalidated as being in conflict with Title VII; nevertheless, no back pay was awarded and the appeal had been from a favorable decision, Rosenfeld v. Southern Pacific Company, 293 F. Supp. 1819 (C.D. Cal. 1968). Several lawyers handled the case, and put in 407 hours, for which the court ordered them to be paid $30,000.00, or $73.75 per hour.

A case cited to the district court herein but not mentioned in the Order, Peters v. Missouri Pacific Ry. Co., 3 FEP Cases 793 (E.D. Tex. 1971) also granted attorney fees over three times higher per hour than herein. In Peters, six plaintiffs claiming race discrimination were represented by lawyers whose time sheets showed 483 hours. No appeal was necessary, and the principle was not novel. A fee of $44,000.00 was recovered. Peters and Rosenfeld awarded attorneys an hourly fee in harmony with the formula set forth in the amicus brief filed herein by The Western Region NAACP, The Mexican-American Legal Defense and Educational Fund, Inc. and The United Native Americans, Inc.-twice the hourly fee of $40.00 times the number of hours expended, which in this case would be $46,800.00.

CONCLUSION

According to the rule enunciated in Massachusetts Mutual Life Insurance Company, supra, at p. 432, an award of attorney fees is within the discretion of the court; nevertheless, if an abuse of that discretion is shown springing from misapprehension of the facts or application of an improper legal standard, such an award should be modified. In the case at bar, it is counsel's contention that the District Judge did not give full consideration to the facts relating to difficulty of the appeal, result achieved loss of time from other employment and lack of continuing relationship to the client. Further, the legal standard used by the court did not appear to include factors employed

by courts in Clark, Rosenfeld and Peters, but rather the contingent fee aspect seemed uppermost. To apply this measurement for civil rights litigation will sharply impede the rights of those suing for injunctive relief or controversies in which back pay or money damages is not deemed appropriate. This inhibition will reach Title VII cases as well as other litigation arising under the Civil Rights Acts of 1866 and 1871, see Hammond v. Housing Authority, 328 F. Supp. 586 (D. Ore. 1971) wherein attorney fees in a case brought under 42 U.S.C Sec. 1983 were awarded, and Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970), in which this court remanded an action based on 42 U.S.C. Sec. 1982 in order that findings might be made with respect to attorney fees.

The question resolves itself into a determination of whether the award below has paid “* * * the laborer the worth of his [her] hire." Clark v. American Marine Corporation, supra, at p. 711. Counsel urges that $15,000.00 for gaining a precedent in a new and difficult filed, and thereafter full relief, which consumed 585 hours over a period in excess of three years, is most assuredly insufficient under any standard.

It is submitted that the Order Awarding Counsel Fees and judgment entered thereon should be amended to increase the amount awarded to $46,800.00, plus a sum representing the time and expenses spent in prosecuting this appeal, Miller v. Amusement Enterprises, 426 F.2d 534 (5th Cir. 1970).

By Attorney:

CERTIFICATE

SYLVIA ROBERTS,
Baton Rouge, La.

I hereby certify that two copies of the foregoing Brief on behalf of Appellant have been served on counsel for defendant and those parties who seek to file Briefs Amicus Curiae, addressed as follows:

Baton Rouge, La., this 15th day of February, 1972.

SYLVIA ROBERTS.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 72-1075

LORENA W. WEEKS, APPELLANT,

V8.

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, APPELLEE

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF FOR THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE AS AMICUS CURIAE

TABLE OF CONTENTS

Motion for leave to file brief amicus curiae

Interest of the National Association for the Advancement of Colored
People

Question presented

Statement of the case

Discussion

An award of counsel fees is not "reasonable" within the meaning of Section 706(k) if it does not compensate the plaintiff's attorney at a rate which substantially exceeds the prevailing hourly rate of routine legal work

Conclusion

TABLE OF CASES

Clark v. American Marine Corporation, 438 F.2d 86 (4th Cir. 1971), aff'd per curiam, 437 F.2d 959 (5th Cir. 1971)

Culpepper v. Reynolds Metals Co., 442 F.2d 1078 (5th Cir. 1971)

Edmonds v. E. I. duPont de Nemours & Co., 315 F.Supp. 523 (D. Kan. 1970)

Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971)

Lee v. Southern Homes Sites Corp., 444 F.2d 143 (5th Cir. 1971)

Massachusetts Mutual Life Insurance Co. v. Brock, 405 F.2d 429 (5th Cir. 1968) N.A.A.C.P. v. Button, 371 U.S. 415, 443 (1963)

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968)

Petete v. Consolidated Freightways, Inc., 313 F.Supp. 1271 (N.D. Tex. 1970)
Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005 (5th Cir. 1969)
Robinson v. Lorillard Corporation, 444 F.2d 791 (4th Cir. 1971)
Rosenfeld v. Southern Pacific Co.,

1971)

F. Supp.

Sanders v. Russell, 401 F.2d 241, 245 (5th Cir. 1968)

4 FEP Cases 72 (C.D. Calif.

Weeks v. Southern Bell Telephone & Telegraph Co., 277 F.Supp. 117 (S.D. Ga. 1967)

Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969)

STATUTES

Civil Rights Act of 1882, 42 U.S.C. § 1982

Civil Rights Act of 1964

Section 703 (e) (1), 42 U.S.C. § 2000e−2(e) (1)
Section 706 (k), 42 U.S.C. § 2000e-5 (k)

MISCELLANEOUS

H.R. Rep. No. 914, 88th Cong., 1st Sess. (1963)