Paulette L. Barnes v. Douglas M. Costle, Administrator of the Environmental Protection Agency

561 F.2d 983, 46 A.L.R. Fed. 198, 183 U.S. App. D.C. 90, 1977 U.S. App. LEXIS 12288, 14 Empl. Prac. Dec. (CCH) 7755, 15 Fair Empl. Prac. Cas. (BNA) 345

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 27, 1977
• Docket: 74-2026
• Status: Published

Opinions

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

This appeal launches a review of an order of the District Court awarding a summary judgment to appellee ¹ on the ground that Title VII of the Civil Rights Act of 1964,² as amended by the Equal Employment Opportunity Act of 1972,³ does not offer redress for appellant’s complaint that her job at the Environmental Protection Agency was abolished because she repulsed her male superior’s sexual advances.⁴ We reverse.

I

Appellant, a black woman, was hired by the director of the Agency’s equal employment opportunity division, who also is black, as his administrative assistant at grade GS-5. During a pre-employment interview, she asserts, he promised a promotion to grade GS-7 within ninety days. Shortly after commencement of the employment, she claims, the director initiated a quest for sexual favors by “(a) repeatedly soliciting [her] to join him for social activities after office hours, notwithstanding [her] repeated refusal to do so; (b) by making repeated remarks to [her] which were sexual in nature; (c) by repeatedly suggesting to [her] that if she cooperated with him in a sexual affair, her employment status would be enhanced.”⁵ Appellant states that she “continually resisted [his] overtures . . . and finally advised him that notwithstanding his stated belief that many executives ‘have affairs with their personnel’, she preferred that their relationship remain a strictly professional one.”⁶ Thereafter, she charges, the director “alone and in concert with other agents of [appellee], began a conscious campaign to belittle [her], to harrass her and to strip her of her job duties, all culminating in the decision of [appellee’s] agent . to abolish [her] job in retaliation for [her] refusal to grant him sexual favors.”⁷ These activities, appellant declares, “would not have occurred but for [her] sex.”⁸

After seeking unsuccessfully an informal resolution of the matter, appellant, acting pro se, filed a formal complaint alleging that the director sought to remove her from his office when she “refused to have an after hour affair with” him.⁹ The complaint charged discrimination based on race rather than gender,¹⁰ a circumstance which appellant attributes to erroneous advice by agency personnel.¹¹ A hearing on the complaint was conducted by an appeals examiner,' who excluded proffered evidence of sex discrimination and found no evidence of race discrimination.¹² In its final decision, the Agency concurred in the examiner’s finding.¹³

Appellant then obtained counsel and appealed to the Civil Service Commission. There, appellant’s attorney requested the Board of Appeals and Review to reopen the record to enable the presentation of sex-discrimination evidence.¹⁴ The Board, however, affirmed the agency’s negative finding on race discrimination and refused the request to reopen on the ground that appellant’s allegations did not bring the case within the purview of the Commission’s regulations implementing Title VII.¹⁵

Thereafter, appellant filed her complaint in the District Court, confining her theory, by allegations to which we have averted,¹⁶ to sex discrimination violative of Title VII and the Fifth Amendment.¹⁷ The court, limiting the inquiry to reexamination of the administrative record,¹⁸ granted appellee’s motion for summary judgment in the view that “the alleged discriminatory practices are not encompassed by the Act.” ¹⁹ The “alleged retaliatory actions of [appellant’s] supervisor taken because [appellant] refused his request for an ‘after hour affair,’ ” the court held, “are not the type of discriminatory conduct contemplated by the 1972 Act.”²⁰ The court reasoned:

The substance of [appellant’s] complaint is that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor. This is a controversy underpinned by the subtleties of an inharmonious personal relationship. Regardless of how inexcusable the conduct of [appellant’s] supervisor might have been, it does not evidence an arbitrary barrier to continued employment based on [appellant’s] sex.²¹

The appeal to this court then followed.

II

By adoption of Title VII of the Civil Rights Act of 1964²² Congress made it an unlawful employment practice for nongovernmental employers, with exceptions not presently relevant,²³ “to . . . discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual’s . . . sex . . f’²⁴ Unfortunately, the early history of that legislation lends no assistance to endeavors to define the scope of this prohibition more precisely, if indeed any elucidation were needed. It was offered as an addition to other proscriptions by opponents in a last-minute attempt to block the bill which became the Act,²⁵ and the bill, with the amendment barring sex-discrimination, then quickly passed.²⁶ Thus, for an eight-year period following its original enactment, there was no legislative history to refine the congressional language.

When, however, the 1964 Act was amended by the Equal Employment Opportunity Act of 1972,²⁷ there was considerable discussion on the topic. Not surprisingly, it then became evident that Congress was deeply concerned about employment discrimination founded on gender, and intended to combat it as vigorously as any other type of forbidden discrimination. The report of the House Committee on Education and Labor declared in ringing tones that the statute— eight years after passage — still had much to accomplish in order to elevate the status of women in employment:²⁸

Numerous studies have shown that women are placed in the less challenging, the less responsible and the less remunerative positions on the basis of their sex alone.

Such blatantly disparate treatment is particularly objectionable in view of the fact that Title VII has specifically prohibited sex discrimination since its enactment in 1964.²⁹

The Committee emphasized that women’s employment rights are not “judicial diver-tissements,” ³⁰ and that “[djiscrimination against women is no less serious than other forms of prohibited employment practices and is to be accorded the same degree of social concern given to any type of unlawful discrimination.”³¹ The report of the Senate Committee on Labor and Public Welfare reveals a similar commitment to eradication of sex discrimination:³²

While some have looked at the entire issue of women’s rights as a frivolous divertissement, this Committee believes that discrimination against women is no less serious than other prohibited forms of discrimination, and that it is to be accorded the same degree of concern given to any type of similarly unlawful conduct. As a further point, recent studies have shown that there is a close correlation between discrimination based on sex and racial discrimination, and that both possess similar characteristics.³³

Not unexpectedly, then, during the thirteen years since enactment of Title VII it has become firmly established that the Act invalidates all “artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on' the basis of impermissible classification[s].” ³⁴ Title VII has been invoked to strike down a wide variety of impediments to equal employment opportunity between the sexes, including insufficiently validated tests,³⁵ discriminatory seniority systems,³⁶ weight-lifting requirements,³⁷ and height and weight standards solely for those of one gender.³⁸ Congress could hardly have been more explicit in its command that there be no sex-based discrimination “against any individual with respect to his . terms, conditions, or privileges of employment . . . .”³⁹

The equal employment measures of the Civil Rights Act of 1964 did not apply to the Federal Government.⁴⁰ The amendments to Title VII effected by the Equal Employment Opportunity Act of 1972, however, extended the substantive protections of the 1964 Act to federal as well as state and local employees.⁴¹ In the federal domain, the 1972 Act provides in relevant part that

[a]ll personnel actions affecting employees or applicants for employment . in executive agencies . . . shall be made free from any discrimination based on race, color, religion, sex or national origin.⁴²

To be sure, the language of the 1964 Act in reference to private employees differs somewhat from that of the 1972 Act respecting federal employees. But it is beyond cavil that Congress legislated for federal employees essentially the same guarantees against sex discrimination that previously it had afforded private employees.⁴³ We thus proceed to an examination of appellant’s claim with the assurance that anything constituting sex discrimination in private employment is equally interdicted in the federal sector.⁴⁴

Ill

Title VII now requires, inter alia, that “[a]ll personnel actions affecting employees in [federal] executive agencies . shall be made free from any discrimination based on ... sex . .”⁴⁵ It is not argued, nor plausibly could it be, that elimination of appellant’s then position within the Environmental Protection Agency was not a “personnel actionQ” within the contemplation of this provision.⁴⁶ Nor can it be doubted that the action effected a “discrimination” — a difference in treatment — against appellant vis-a-vis other employees of the Agency, since there is no indication that the position of any other employee of the agency was similarly eliminated. The question debated, and the issue pivotal on this appeal, is whether the discrimination, in the circumstances described by appellant, was as a matter of law “based on sex " ⁴⁷

We start with the statute as written, and, so measured, we think the discrimination as portrayed was plainly based on appellant’s gender. Her thesis, in substance, is that her supervisor retaliated by abolishing her job when she resisted his sexual advances. More particularly, she states that he repeatedly told her that indulgence in a sexual affair would enhance her employment status; that he endeavored affirmatively but futilely to consummate his proposition; and that, upon her refusal to accede, he campaigned against her continued employment in his department and succeeded eventually in liquidating her position.⁴⁸ So it was, by her version, that retention of her job was conditioned upon submission to sexual relations — an exaction which the supervisor would not have sought from any male.⁴⁹ It is much too late in the day to contend that Title VII does not outlaw terms of employment for women which differ appreciably from those set for men,⁵⁰ and which are not genuinely and reasonably related to performance on the job.⁵¹

The District Court felt, however, that appellant’s suit amounted to no more than a claim “that she was discriminated against, not because she was a woman, but because she refused to engage in a sexual affair with her supervisor.”⁵² In similar vein, appellee has argued that “[a]ppellant was allegedly denied employment enhancement not because she was a woman, but rather because she decided not to furnish the sexual consideration claimed to have been demanded.”⁵³ We cannot accept this analysis of the situation charged by appellant. But for her womanhood, from aught that appears, her participation in sexual activity would never have been solicited.⁵⁴ To say, then, that she was victimized in her employment simply because she declined the invitation is to ignore the asserted fact that she was invited only because she was a woman subordinate to the inviter in the hierarchy of agency personnel.⁵⁵ Put another way, she became the target of her superior’s sexual desires because she was a woman, and was asked to bow to his demands as the price for holding her job. The circumstance imparting high visibility to the role of gender in the affair is that no male employee was susceptible to such an approach by appellant’s supervisor.⁵⁶ Thus gender cannot be eliminated from the formulation which appellant advocates, and that formulation advances a prima facie case of sex discrimination within the purview of Title VII.

It is clear that the statutory embargo on sex discrimination in employment is not confined to differentials founded wholly upon an employee’s gender. On the contrary, it is enough that gender is a factor contributing to the discrimination in a substantial way.⁵⁷ That this was the intent of Congress is readily apparent from a small but highly significant facet of the legislative history of Title VII. When the bill incorporating Title VII was under consideration in 1964, an amendment that would have expressly restricted the sex ban to discrimination based solely on gender was defeated on the floor of the House.⁵⁸ Like the Fifth Circuit, we take this as an indication of congressional awareness of the debilitating effect that such a limitation would have had on any attempt to stamp out sex-based factors irrelevant to job competence.⁵⁹

Interpretations of the Act, both judicial and administrative, more than adequately reflect this understanding and appreciation of the legislative purpose. In Phillips v. Martin Marietta Corporation⁶⁰ the Supreme Court held that a company’s refusal of employment to mothers but not to fathers of pre-school-age children was prima facie sex discrimination within the meaning of Title VII.⁶¹ Not all women were excluded from the employment, but only those who had pre-school-age children. Nonetheless, since gender was a criterion in the determination of employability, a prima facie violation of Title VII was shown.⁶² Other courts, in analogous contexts, have similarly concluded that distinctions predicated only partly though firmly on gender are covered by Title VII’s ban on sex discrimination.⁶³ And an administrative interpretation of the Act commanding deference⁶⁴ is the Equal Employment Opportunity Commission’s pronouncement that “so long as sex is a factor in the application of” an employer’s rule forbidding marriage by female employees, “such application involves a discrimination based on sex.”⁶⁵

In all of these situations, the objectionable employment condition embraced something more than the employee’s gender, but the fact remained that gender was also involved to a significant degree. For while some but not all employees of one sex were subjected to the condition, no employee of the opposite sex was affected, and that is the picture here.⁶⁶ It does not suffice to say, as the District Court did, that appellant’s position was eliminated merely because she refused to respond to her supervisor’s alleged call for sexual favors.⁶⁷ Appellant’s gender, just as much as her cooperation, was an indispensible factor in the job-retention condition of which she complains, absent a showing that the supervisor imposed a similar condition upon a male co-employee.⁶⁸

We also note that, in disposing of this case, the District Court referred to it as “a controversy underpinned by the subtleties of an inharmonious personal relationship.”⁶⁹ Were we satisfied that this characterization was but a part of the reasoning underlying the court’s ruling that the discrimination was not sex-based, we would have no need to address it further.⁷⁰ The fact is, however, that we are uncertain as to the reach of the court’s observation, and concerned about implications to which it is susceptible.

If the court meant that the conduct attributed to appellant’s supervisor fell outside Title VII because it was a personal escapade rather than an agency project, no support for a summary judgment could be derived therefrom. Generally speaking, an employer is chargeable with Title VII violations occasioned by discriminatory practices of supervisory personnel.⁷¹ We realize that should a supervisor contravene employer policy without the employer’s knowledge and the consequences are rectified when discovered, the employer may be relieved from responsibility under Title VII.⁷² But, so far as we are aware, the agency involved here is not in position to claim exoneration on that theory.

If, on the other hand, the court was saying that there was no actionable discrimination because only one employee was victimized, we would strongly disagree. A sex-founded impediment to equal employment opportunity succumbs to Title VII even though less than all employees of the claimant’s gender are affected.⁷³ The protections afforded by Title VII against sex discrimination are extended to the individual,⁷⁴ and “a single instance of discrimination may form the basis of a private suit.”⁷⁵ To briefly illustrate, suits have been entertained where a woman charged that she was fired because she was pregnant and unmarried, notwithstanding the fact that no other woman was discharged for that reason,⁷⁶ and where a male nurse asserted that he was denied assignments to care for female patients, although no allegations were made with respect to the assignment of other male nurses.⁷⁷ Close analogies emerge from situations wherein a black woman was terminated ostensibly for personality conflicts but allegedly was told that she probably did not need the job anyway because she was married to a white male⁷⁸ and where a white woman attributed loss of her job to her relationship with a black man.⁷⁹ In each of these instances, a cause of action was recognized although it did not appear that any other individual of the same gender or race had been mistreated by the employer.⁸⁰

At no time during our intensive study of this case have we encountered anything to support the notion that employment conditions summoning sexual relations between employees and superiors are somehow exempted from the coverage of Title VII.⁸¹ The statute in explicit terms proscribes discrimination “because of . sex,”⁸² with only narrowly defined exceptions completely foreign to the situation emerging here.⁸³ The legislative history similarly discloses a congressional purpose to outlaw any and all sex-based discrimination,⁸⁴ equally with any other form of discrimination which Title VII condemns.⁸⁵ Beyond these considerations, the courts have consistently recognized that Title VII must be construed liberally to achieve its objectives; ⁸⁶ as we ourselves recently noted, it “requires an interpretation animated by the broad humanitarian and remedial purposes underlying the federal proscription of employment discrimination.”⁸⁷ It would be pointless to speculate as to whether Congress envisioned the particular type of activity which the job-retention condition allegedly levied on appellant would have exacted. As Judge Goldberg of the Fifth Circuit has so well put it,

Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extenso the parameter of such nefarious activities. Rather, it pursued the path of wisdom by being unconstric-tive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustices of the morrow.⁸⁸

Against this backdrop, we cannot doubt that Title VII intercepts the discriminatory practice charged here.⁸⁹ The judgment appealed from is accordingly reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion.⁹⁰

Reversed and remanded.

1 . Appellee is the Administrator of the Environmental Protection Agency, at which the events precipitating this lawsuit allegedly transpired. He is a litigant solely by reason of his official position.

2 . Pub. L. No. 88-352, tit. VII, 78 Stat. 253 (1964), as amended, 42 U.S.C. §§ 2000e et seq. (1970).

3 . Pub. L. No. 92-261, 86 Stat. 103 (1972), as amended, 42 U.S.C. §§ 2000e et seq. (Supp. II 1972).

4 . Barnes v. Train, Civ. No. 1828-73 (D.D.C.) (order of Aug. 9, 1974).

5 . Joint Appendix (J.App.) 29 (appellant’s complaint r 5).

6 . J.App.29 (appellant’s complaint J] 6).

7 . J.App.29 (appellant’s complaint r 6). The position appellant held was eliminated and replaced by a grade GS-12 position filled by a white1 woman, and appellant was reassigned as a grade GS-5 employee elsewhere in the Agency.

8 . J.App.29 (appellant’s complaint f 6).

9 . J.App. 1.

¹⁰

11 . J.App.30 (appellant’s complaint 6 7). The claim here is that agency personnel told appellant that the matter was solely a personnel grievance and did not amount to sex discrimination. See note 14 infra.

12 . J.App.5-20. Nonetheless, some evidence of sex discrimination crept into the hearing. Another female employee of the Agency testified to problems with the director when she refused to engage in sexual relations with him. J.App. 91-93. With respect to this allegation and others, the director testified differently at the hearing. These contrasting versions are unimportant at this stage of the litigation. As we later point out, the District Court erroneously denied appellant’s request for a trial de novo and rendered summary judgment exclusively on the administrative record. See note 18 infra. The conflicting testimony at the administrative hearing merely paralleled the same factual disputes later generated by the pleadings — disputes foreclosing summary judgment. Fed.R. Civ.P. 56(c).

13 . J.App.3 — 4.

14 . Counsel informed the Board that subsequent to the hearing a pattern of discriminatory promotion of men as opposed to women had developed under- the director’s regime. J.App.24. Counsel also told the Board that

[appellant] was incorrectly advised as to the laws of sex discrimination by the agency EEO counsellor who assisted her in filing her complaint of race discrimination in this case

[Appellant] litigated her case on the basis of alleged race discrimination only, omitting from her presentation on the grounds of relevancy a considerable amount of evidence which at least arguably would have supported the claim of sex discrimination. . I submit that this case involves an erroneous interpretation of the law justifying reopening the record. . . . Moreover, it is appropriate as a matter of fairness and charity to reopen the record where evidence is adduced in the course of hearing which would support a claim of discrimination on a basis other than that which was originally alleged.

15 . J.App.21-26.

16 . See text supra at notes 5-8.

17 . Barnes v. Train, supra note 4. The complaint sought (a) a declaratory judgment that the director’s actions constituted sex discrimination within Title VII, (b) back pay, (c) reconstruction of her personnel records to reflect the promotions she would have received but for the allegedly unlawful acts, (d) compensation for expenses incurred in prosecuting the case administratively, (e) medical expenses incurred for treatment of nervous anxiety caused by the incidents complained of, and (f) costs and attorney’s fees. J.App.31-32.

18 . Appellant sought leave to amend the complaint to include allegations of retaliation by the director after the filing of the initial discrimination complaint. The record does not reflect any ruling on that request. See note 90 infra. The court held, however, that appellant was not entitled to a de novo trial, Barnes v. Train, supra note 4, memorandum opinion at 3-4 (Aug. 9, 1974), J.App. 165-166, a ruling independently challenged on this appeal. It is now clear that if appellant’s complaint stated a claim upon which relief could be granted pursuant to Title VII, the court erred in denying de novo consideration. Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976), decided after rendition of the judgment appealed from. See also note 90 infra.

19 . Barnes v. Train, supra note 4, memorandum opinion at 1 (Aug. 9, 1974), J.App.163.

20 . Id. at 2, J.App. 164.

21 . Id. at 3, J.App. 165.

22 . Pub. L. No. 88-352, 78 Stat. 255 (1964), as amended, 42 U.S.C. §§ 2000e-2 et seq. (1970).

23 . See note 83 infra and accompanying text.

24 . In relevant part the Act provides:

It shall be an unlawful employment 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 or applicants for employment 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.

Civil Rights Act of 1964, tit. VII, § 703, as amended, 42 U.S.C. § 2000e-2(a) (1970 & Supp. II 1972).

25 . See 110 Cong.Rec. 2577 (1964) (remarks of Representative Smith); id. at 2581-2582 (remarks of Representative Green).

26 . See 110 Cong.Rec. 2804-2805 (1964); id. at 14511; id. at 15897.

27 . Pub.L. No. 92-261, 86 Stat. 103 (1972), 42 U.S.C. §§ 2000e et seq. (Supp. II 1972).

28 . H.R.Rep. No. 92-238, 92d Cong., 1st Sess. 4-5, U.S.Code Cong. & Admin.News 1972, p. 2137 (1971).

29 . Id.

30 . Id. at 5.

³¹

32 . S.Rep. No. 92-415, 92d Cong., 1st Sess. 7-8 (1971).

33 . Id. at 7.

34 . Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158, 164 (1971).

35 . Griggs v. Duke Power Co., supra note 34; Rogers v. International Paper Co., 510 F.2d 1340, 1348 (5th Cir.), vacated on other grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29, amended on other issues, 526 F.2d 722 (5th Cir. 1975); United States v. N. L. Indus., Inc., 479 F.2d 354, 371-372 (8th Cir. 1973).

36 . United States v. Bethlehem Steel Corp., 446 F.2d 652, 658-659 (2d Cir. 1971); United States v. Chesapeake & O. Ry., 471 F.2d 582, 588-589 (4th Cir. 1972), cert. denied, 411 U.S. 939, 93 S.Ct. 1893, 36 L.Ed.2d 401 (1973); Robinson v. Lorillard Corp., 444 F.2d 791, 799-800, 21 A.L.R.Fed. 453 (4th Cir.), cert. dismissed, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1971); United States v. N. L. Indus., Inc., supra note 35, 479 F.2d at 366-367.

37 . Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 234-236, 12 A.L.R.Fed. 1 (5th Cir. 1969). Cf. Rosenfeld v. Southern Pac. Co., 444 F.2d 1219, 1225-1227 (9th Cir. 1971).

38 . Laffey v. Northwest Airlines, 366 F.Supp. 763, 790 (D.D.C.1974), aff’d in part and reversed in part, No. 74-1791 (D.C.Cir. Oct. 20, 1976). The Supreme Court has also outlawed height and weight strictures which, although applicable to both sexes, have a disproportionate impact on women. Dothard v. Rawlinson, - U.S. -,---, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977).

39 . See text supra at note 24.

40 . Civil Rights Act of 1964, tit. VII § 701(b)(1), 42 U.S.C. § 2000e(b)(l) (1970).

41 . Equal Employment Opportunity Act of 1972, §§ 2(b)(1), 11(a), 42 U.S.C. §§ 2000e(b)(l), 2000e-16(a) (Supp. II 1972).

42 . Pub.L. No. 92-261, § 11, 86 Stat. Ill (1972), 42 U.S.C. § 2000e-16 (Supp. II 1972).

43 . See, e. g., Dothard v. Rawlinson, supra note 38,-U.S. at-n.14, 97 S.Ct. at 2728 n.14, 53 L.Ed.2d at 799 n.14; Morton v. Mancan, 417 U.S. 535, 547, 94 S.Ct. 2474, 2481, 41 L.Ed.2d 290, 298 (1974) (“[i]n general, it may be said that the substantive anti-discrimination law embraced in Title VII was carried over and applied to the Federal Government”); Hackley v. Rodebush, 171 U.S.App.D.C. 376, 404, 410 n.138, 416, 520 F.2d 108, 136, 142 n.138, 148 (1975); Douglas v. Hampton, 168 U.S.App.D.C. 62, 67, 512 F.2d 976, 981 (1975); Womack v. Lynn, 164 U.S.App.D.C. 198, 504 F.2d 267 (1974); Parks v. Dunlop, 517 F.2d 785, 787 (5th Cir. 1975).

44 . “The intent of Congress in enacting the 1972 amendments to that Act extending its coverage to federal employment was to give those public ' employees the same rights as private employees enjoy.” Parks v. Dunlop, supra note 43, 517 F.2d at 787. See also S.Rep. No. 92-415, 92d Cong., 1st Sess. 16 (1971).

45 . See text supra at note 42.

46 . It has been asserted, however, that “the alleged discrimination in the instant case was not a result of a policy, a regulation, or a statute,” Brief for Appellee at 24, a matter we address later. See text infra at notes 71 and 72. We do not understand appellee to imply thereby that abolition of appellant’s position, as distinguished from a sex bias underlying it, was unsupported by regulation or statute. Such a concession would, of course, be fatal to any effort to defend the abolition.

47 . On the eve of rendition of our decision herein, appellee moved for a remand of the case to the District Court. The motion informs us that “[s]ince the date of oral argument” in this court “the Civil Service Commission . has reconsidered its position," and that “[i]t is now the Commission’s view that the type of conduct alleged by appellant — conditioning employment benefits upon an employee’s compliance with his or her supervisor’s demands for sexual favors — if true, constitutes sex discrimination within the meaning of Title VII.” Motion of Appellee to Remand (June 22, 1977), at 2. The motion argues that the District Court should be afforded the opportunity to re-examine its ruling in light of the Commission’s present stand, and expresses the “view [that] the Commission’s new position represents a reasonable construction of the statute and hence should be followed by the District Court.” Id. at 2-3 (citation omitted).

We certainly agree that the interpretation now given Title VII by the Commission — the agency primarily responsible for administration of Title VII in the area of federal employment, see 42 U.S.C. § 2000e-16(b) (Supp. II 1972)— lends powerful support to the identical conclusion we have reached. Griggs v. Duke Power Co., supra note 34, 401 U.S. at 433-134, 91 S.Ct. at 854-855, 28 L.Ed.2d at 165; United States v. City of Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 20, 27 L.Ed.2d 9, 12-13 (1970); Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 795, 13 L.Ed.2d 616, 619 (1965). That is not, however, to say that the remand which appellee desires is indicated. Judicial responsibility to construe the governing statute remains, see Young v. United States, 315 U.S. 257, 258-259, 62 S.Ct. 510, 511, 86 L.Ed. 832, 834-835 (1942); cf. Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917, 932 (1968); Petite v. United States, 361 U.S. 529, 532, 80 S.Ct. 450, 452, 4 L.Ed.2d 490, 492-493 (1960) (concurring opinion); Gibson v. United States, 329 U.S. 338, 344 n. 9, 67 S.Ct. 301, 304 n. 9, 91 L.Ed. 331, 338 n. 9 (1946); and whether that duty should be discharged by the District Court or, rather, by this court comes down to a matter of adjudicative feasibility.

When appellee’s motion to remand arrived, our resolution of the constructional problem had already crystallized, and we were prepared to overturn the holding of the District Court on that issue, as we do today. Moreover, there is no way of knowing whether the District Court would deem the Commission’s changed interpretation sufficiently persuasive to warrant a reversal of the apparently firm conclusion to the contrary that it had earlier reached; and if it is not, a new appeal — with another heavy investment of time, labor and expense — presumably would follow. In these circumstances, we are unable to perceive adequate justification for the requested remand, and the motion therefore will be denied.

⁴⁸

49 . The vitiating sex factor thus stemmed not from the fact that what appellant’s superior demanded was sexual-activity — which of itself is immaterial — but from the fact that he imposed upon her tenure in her then position a condition which ostensibly he would not have fastened upon a male employee. Appellant flatly claims that but for her gender she would not have been importuned, and nothing to the contrary has as yet appeared, and there is no suggestion that appellant’s allegedly amorous supervisor is other than heterosexual. These are matters for proof at trial, and the inquiry at this stage of the litigation is solely in terms of a prima facie case of sex discrimination. In sum, the record in its current posture portrays a superior placing on a female subordinate a substantial employment condition which he would not seek to levy on a man. See note 55 infra. The situation is very different from instances of sexual affairs between an agency’s employees which are not tied to employment opportunity in any way.

50 . Cf. Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 497-498, 27 L.Ed.2d 613, 615-616 (1971). Title VII expressly prohibits “discrimination] against any individual with respect to [the] term, conditions, or privileges of employment, because of such individual’s . . . sex . . See text supra at note 24. As we have said, the Equal Employment Opportunity Act of 1972 now confers the same protection upon federal employees. See text supra at note 43.

51 . The Act tolerates any sex-based distinction in employment which is a “bona fide occupational qualification” for the position in question. Civil Rights Act of 1964, tit. VII, § 703(e), 42 - U.S.C.A. § 2000e-2(e) (1970). By appellant’s assessment, her only alternatives were to submit to sexual blackmail or suffer adversity as an employee. Appellee, quite understandably, does not argue that provision of sexual services can qualify as a “bona fide occupational qualification” for women in federal employment.

52 . See text supra at note 21.

53 . Brief for Appellee at 20.

54 . See note 49 supra.

55 . It is no answer to say that a similar condition could be imposed on a male subordinate by a heterosexual female superior, or upon a subordinate of either gender by a homosexual superior of the same gender. In each instance, the legal problem would be identical to that confronting us now — the exaction of a condition which, but for his or her sex, the employee would not have faced. These situations, like that at bar, are to be distinguished from a bisexual superior who conditions the employment opportunities of a subordinate of either gender upon participation in a sexual affair. In the case of the bisexual superior, the insistence upon sexual favors would not constitute gender discrimination because it would apply to male and female employees alike.

56 . See text supra at note 49.

57 . See cases cited infra note 63. We have previously held that not every dissimilarity in employment conditions respectively set for the sexes impinges on Title VII. In Dodge v. Giant Food, Inc., 160 U.S.App.D.C. 9, 488 F.2d 1333 (1973), finding that different grooming standards for men and women did not violate the statute, we observed that Title VII was not intended to encompass minor sexual classifications which “do not limit employment opportu.nities by making distinctions based on immutable personal characteristics, which do not represent any attempt by the employer to prevent the employment of a particular sex, and which do not pose distinct employment disadvantages for one sex.” Id. at 12, 488 F.2d at 1337 (footnotes omitted). See also Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115, 27 A.L.R.Fed. 257 (1973); Willingham v. Macon Tel. Publishing Co., 507 F.2d 1084, 26 A.L.R.Fed. 1 (5th Cir. en banc 1975). By contrast, the case at bar harbors a treatment differential allegedly predicated upon an immutable personal characteristic — gender— which subjected appellant to a marked disadvantage in comparison with men employed by the Agency.

58 . 110 Cong.Rec. 2728, 13825 (1964).

59 . Willingham v. Macon Tel. Publishing Co., supra note 57, 507 F.2d at 1089.

60 . 400 U.S. at 544, 91 S.Ct. at 497-498, 27 L.Ed.2d at 615-616.

61 . The Court remanded the case for a determination as to whether the condition imposed was “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Id. at 544, 91 S.Ct. at 498, 27 L.Ed.2d at 616. See note 51 supra.

62 . See text supra at note 57.

63 . Willingham v. Macon Tel. Publishing Co., supra note 57, 507 F.2d at 1089; Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971). See also Gillin v. Federal Paper Bd., Co., 479 F.2d 97, 102 (2d Cir. 1973).

64 . See, e. g., Griggs v. Duke Power Co., supra note 34, 401 U.S. at 433-434, 91 S.Ct. at 854-855, 28 L.Ed.2d at 165; United States v. City of Chicago, supra note 47, 400 U.S. at 10, 91 S.Ct. at 20, 27 L.Ed.2d at 12-13; Udall v. Tallman, supra note 47, 380 U.S. at 4, 85 S.Ct. at 795, 13 L.Ed.2d at 619. Cf. General Elec. Co. v. Gilbert, 429 U.S. 125, 140-145, 97 S.Ct. 401, 410-413, 50 L.Ed.2d 343, 357-360 (1976).

65 . 29 C.F.R. § 1604.4(a) (1975).

66 . See notes 49 & 55 supra and accompanying text. An analogy is afforded by Slack v. Havens, 7 F.E.P.Cas. 885, 890 (S.D.Cal.1973), aff'd, 522 F.2d 1091 (9th Cir. 1975), where four black women were discharged as a result of their refusal to perform heavy cleaning, assertedly not part of their duties and required of them simply because of their race. The one white woman assigned to their department, who had less seniority than three of the four, was transferred elsewhere to work for the day, id. at 887, and another black employee then on loan to another department was returned to aid in the cleaning. Id. at 889. En route to the office to collect their final pay checks, the four plaintiffs were told by their supervisor that “[c]olored folks are hired to clean because they clean better.” Id. at 887. There were no allegations of racial discrimination other than with respect to this one incident. Over the employer’s objection that the dispute related solely to job classification, id. at 889, the court held that the discharge was violative of Title VII because the plaintiffs’ superiors

meant to require the plaintiff to perform the admittedly heavy and possibly dangerous work of cleaning the bonding and coating department when they would not require the same work from plaintiffs’ white fellow employee. Furthermore, [they] meant to enforce the decision by firing the plaintiffs when they refused to perform that work. The consequence of the above was racial discrimination whatever the motivation of the management of defendant . . may have been.

Id. at 890. On appeal, the Ninth Circuit affirmed the ruling on discrimination but remanded the case for recalculation of backpay. 522 F.2d at 1095. Like the plaintiffs in Slack, appellant asserts that she was confronted by demands that would not have been made upon her but for her sex, and that her refusal to comply with them led to abolition of her job. That the demand here was for sexual relations is of no consequence. See note 49 supra.

⁶⁷

68 . See text supra at note 49. On this account, we believe that General Elec. Co. v. Gilbert, supra note 64, and Geduldig v. Aiello, 417 U.S. 484, 94 S.Ct. 2485, 41 L.Ed.2d 256 (1974), are distinguishable. In General Electric, it was concluded that exclusion of benefits for pregnancy from an employer’s otherwise comprehensive disability plan did not work a discrimination attributable to sex. The Court relied heavily upon its earlier holding in Geduldig that a similar state-sponsored plan did not infringe the Fourteenth Amendment. The Court reasoned that neither program foreclosed anyone from eligibility for benefits because of gender, but merely removed one risk from the coverage provided. As analyzed in each case, “[t]he program divides potential recipients into two groups — pregnant women and non-pregnant persons. While the first group is exclusively female, the second includes members of both sexes.” General Elec. Co. v. Gilbert, supra note 64, 429 U.S. at 135, 97 S.Ct. at 407, 50 L.Ed.2d at 353, quoting Geduldig v. Aiello, supra, 417 U.S. at 496-497 n. 20, 94 S.Ct. at 2492 n. 20, 41 L.Ed.2d at 264 — 265 n. 20. There was no showing that there were risks against which men were protected and women were not, or vice versa; or that the total package of benefits gave an advantage to men over women; or that the exclusion of pregnancy benefits was a subterfuge for discrimination against women.

As we read these decisions, they do not condone discrimination bottomed partly though not wholly on sex, or sex discrimination against some but not all women. By the Court’s appraisal, men and women were treated equally in terms of protection conferred by the disability plans, and that led to the view that there was no discrimination at all. Moreover, the opinion in neither case suggests that the Court was retreating from its decision in Phillips v. Martin-Marietta Corp., supra note 50, which invalidated a condition barring women from employment only if they had preschool-age children, and affected no one else at all. See text supra at notes 60-62. When, as in the case before us, a woman is subjected to an employment condition by a superior who leaves all men completely free from that condition, it cannot be said that there is parity of treatment as found in General Electric and Geduldig, or that there is not a sex-predicated discrimination as found in Phillips.

⁶⁹

70 . See text supra at notes 54-56.

71 . See, e. g., Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140, 144 n. 7, 145 (5th Cir. 1975); Anderson v. Methodist Evangelical Hosp., Inc., 464 F.2d 723, 725 (6th Cir. 1972); Slack v. Havens, supra note 66, 7 F.E.P.Cas. at 890; Ostapowicz v. Johnson Bronze Co., 369 F.Supp. 522, 536 (W.D.Pa.1973), aff’d in part and vacated in part on other grounds, 541 F.2d 394 (3d Cir. 1976); Tidwell v. American Oil Co., 332 F.Supp. 424, 436 (D.Utah 1971). See also Sibley Memorial Hosp. v. Wilson, 160 U.S.App. D.C. 14, 15-16, 18, 488 F.2d 1338, 1339-1340, 1342 (1973); Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 441-442 (5th Cir.), cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974); McMullen v. Warner, 416 F.Supp. 1163, 1165-1167 (D.D.C.1976). But see Corne v. Bausch & Lomb, Inc., 390 F.Supp. 161, 163 (D.Ariz.1975), appeal docketed, No. 75-1857 (9th Cir. Mar. 26, 1975).

72 . See, e. g., Miller v. Bank of America, 418 F.Supp. 233, 235-236 (N.D.Cal.1976) (official policy of bank to discourage sexual conduct, and bank not advised of behavior by filing of grievance with Employer Relations Department); Howard v. National Cash Register Co., 388 F.Supp. 603, 605-606 (S.D.Ohio 1975) (racial slurs by fellow employees always investigated and employees disciplined).

73 . See cases cited infra notes 75-80.

⁷⁴

75 . King v. Laborers Int’l Union, 443 F.2d 273, 278 (6th Cir. 1971). There an employee alleged that because of his race he had been denied equal opportunity to appear on his union’s picket line, in violation of Title VII. The employee had been afforded a jury trial on his claim — a matter which the trial court was told to reconsider on remand — and the jury had been instructed that it was incumbent upon the employee to show that there was a discriminatory pattern or practice on the union’s part, and that an isolated instance of discrimination would not suffice under the Act. Id. at 275. This position was rejected on appeal, and it was held that proof of a single act of discrimination was enough. Id. at 278. Compare Sprogis v. United Air Lines, Inc., supra note 63, where the court held that the airline’s no-marriage policy, which was applied only to female flight attendants and not to male flight attendants or other employees, male or female, violated Title VII. 444 F.2d at 1198. In finding prohibited discrimination, the court held that “[t]he effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class.” Id.

76 . Doe v. Osteopathic Hosp. of Wichita, Inc., 333 F.Supp. 1357, 1362 (D.Kan.1971). The court held that it was irrelevant that there were no other known females discharged because of unwed pregnancies in the past five years, because Title VII prohibits discrimination against “any individual.”

77 . Sibley Memorial Hosp. v. Wilson, supra note 71, 160 U.S.App.D.C. at 18, 488 F.2d at 1342.

78 . Vuyanich v. Republic Nat’l Bank of Dallas, 409 F.Supp. 1083, 1089 (N.D.Tex.1976). Although the charge filed with the Commission by Vuyanich was only one of race discrimination, the court noted that the statement to the plaintiff “clearly smacks of sexual as well as racial discrimination,” since implicit in the statement was the assumption that the male spouse is more important economically and therefore the dismissal might not have occurred had plaintiff been a black male instead of a black female. Id. at 1089.

79 . Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401 F.Supp. 1363, 1366-1367 (S.D.N.Y.1975).

80 . See also McCreesh v. Berude, 385 F.Supp. 1365, 1368 (E.D.Pa.1974) (denial of summary judgment to employer in action where employee alleged merely that she would have been promoted on time had she been male or nonwhite).

81 . We are advertent to appellee’s plaint that “if the claim which appellant presents were to be found to be justiciable within the framework of a Title VII action, the District Court — and, inevitably, this Court — will find itself embroiled in the resolution of controversies involving claimed denials of employment enhancement on the ground of sex discrimination when the alleged basis of the denials are personal relationships made ‘inharmonious’ by the influence of a wide range of sexual stereotypes upon unenlightened supervisors.” Brief for Appellee at 27. This consideration is wholly beside the point in this forum. We cannot assume that Congress did not realize that any problem in this connection inheres also in claims of employment discrimination stemming from race, color, religion or national origin, and that any such difficulty is treatable by measures other than disregard of the legislative will. Cf. Miller v. Laird, 349 F.Supp. 1034, 1044 (D.D.C.1972). In designating gender as one of the founts from which discrimination must not flow, “Congress has made the choice, and it is not for us to disturb it.” Chandler v. Rodebush, supra note 18, 425 U.S. at 864, 96 S.Ct. at 1961, 48 L.Ed.2d at 433.

82 . See note 24 supra and accompanying text.

83 . See Civil Rights Act of 1964, §§ 703(e) & (h), as amended, 42 U.S.C. §§ 2000e-2(e) & (h) (1970).

84 . See text supra at notes 28-33.

85 . See text supra at note 31.

86 . See, e. g., Henderson v. Eastern Freight Ways, Inc., 460 F.2d 258, 260 (4th Cir. 1972), cert. denied, 410 U.S. 912, 93 S.Ct. 976, 35 L.Ed.2d 275 (1973); Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 929 (5th Cir. 1975); Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970).

87 . Coles v. Penny, 174 U.S.App.D.C. 277, 284, 531 F.2d 609, 616 (1976).

88 . Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972).

89 . The same result has been reached in the District Court. Williams v. Saxbe, 413 F.Supp. 654 (D.D.C.1976). We are aware that other courts have reached the opposite conclusion. Corne v. Bausch & Lomb, Inc., supra note 71; Miller v. Bank of America, supra note 72; Tomkins v. Public Serv. Elec. & Gas Co., 422 F.Supp. 553 (D.N.J. 1976). With the latter, we must respectfully disagree.

90 . On remand, appellant will be at liberty to renew her motion for leave to amend her complaint. See note 18 supra.