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It is a violation of Title VII of the Civil Rights Act of 1964 for a help-wanted advertisement to indicate a preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the particular job involved. The placement of an advertisement in columns classified by publishers on the basis of sex, such as columns headed "Male" or "Female," will be considered by the Equal Employment Opportunity Commission as an expression of a preference, limitation, specification, or discrimination based on sex. 29 C.F.R. § 1604.4.
Plaintiffs, six female adults who are members of a large city's employment market, filed an action against defendants, newspaper publishers, contending that their practice of publishing help-wanted listings under separate male and female headings violated Title VII of the Civil Rights Act of 1964 and deprived them of equal access to employment where sex was not a bona fide occupational qualification. The publishers filed motions to dismiss for failure to state a cause of action.
Is there a justiciable cause of action in the instant case over which the court may take jurisdiction?
An examination of the complaint reveals that plaintiffs describe themselves as ". . . female members of the employment market in the Chicago area . . . over twenty-one years of age." They do not assert that they are unemployed or, if employed, are seeking other employment. Nor do they assert that any of them have suffered a particular injury as the result of the discriminatory practices complained of. The courts do not exist for the abstract determination of social and legal issues, absent the actual impingement of the complained of practice upon a plaintiff, with the result of an actual or an immediately impending threat of injury. Stated another way, it is not the function of the District Court to determine whether, in the public interest, the defendants should or should not be enjoined. It is, rather, the function of the court to determine what actual or threatened impairment of the rights of the named plaintiffs requires the intervention of the court for their protection. That the plaintiffs describe themselves as female members of the employment market does not seem to be an adequate showing that the alleged discriminatory practices involved in the classified help wanted ad format of the defendant newspapers constitutes a threat of actual or immediately apprehended injury.
The plaintiffs' brief and the amicus brief contain much material suggesting the impropriety and undesirability of the separate classification by sex of help-wanted and employment opportunity ads. Much of this material is persuasive. It is the business and jurisdiction of the court to decide only the applicability of the statute upon which the cause of action hereunder consideration is predicated. That statute has been determined to be non-applicable and for this reason the district court has no jurisdiction. It seems appropriate to suggest, however, to the defendant, however gratuitously, that the position of the plaintiffs is an idea whose time has come and that serious consideration be given to a revision of the classification practices in employment advertising without reference to and free from the compulsion of jurisdiction of the court.