Footnote-picking in the Spouse-Picking Case

I am, by far, not the first lawyer ever to say I have disagreed with a number of Supreme Court decisions.  Even law students have a list of their favorites.  One case that’s on my top ten is  Duncan Association of Detailman v. Glaxo where the Supreme Court said, in effect, that your employer has a legitimate right to regulate your choice of spouse as part of its goal in protecting its commercial interests.  In that case, the Court upheld the validity of a company policy prohibiting employees from marrying persons employed by a competitor. 

I don’t know about you, but I think the choice of spouse is an intimately private decision and one which the State (much less a private company) is not entitled to interfere with.   Who I marry is part and parcel of my pursuit of happiness and an inherent right.  After all, what is liberty worth if the State can regulate or tolerate the regulation of such intimate life choices? 

Going back to the case. I read it again today and I noticed that the Court used a US case to support its decision.  This isn’t unusual.  Despite the Court’s own assertion that the “umbilical cord” between Philippine and US jurisprudence has been cut, many of its decisions rely heavily on American case law.  Well, here’s what the Court said:

As held in a Georgia, U.S.A case,[22] it is a legitimate business practice to guard business confidentiality and protect a competitive position by even-handedly disqualifying from jobs male and female applicants or employees who are married to a competitor. Consequently, the court ruled than an employer that discharged an employee who was married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of 1964.[23] The Court pointed out that the policy was applied to men and women equally, and noted that the employer’s business was highly competitive and that gaining inside information would constitute a competitive advantage.

The case referred to in Footnote 22 is:

Emory v. Georgia Hospital Service Association (1971), DC Ga., 4 CCH EPD ¶ 7785, 4 BNA FEP Cas 891, affd (CA5) 446 F2d 897, 4 CCH EPD ¶ 7786; Cited 45 Am Jr 2d Sec. 469.

(The entire case is quoted at the end of this post)

In at least 2 other instances where I’ve investigated foreign cases cited by the Court, the citation was wrong.  So, it is unsurprising that the Court’s reliance on Emory is misplaced.  The inherent validity of the employer’s policy was never in question in that case.  In other words, the court never considered whether an employer’s ban on marriage to competitors’ employees was constitutional. Here’s the relevant portion of the court’s ruling in Emory:

Having heard and weighed the evidence in this case, the Court concludes as a matter of fact that Mrs. Emory’s employment was terminated because of the standing policy of the Defendant company above described and that her employment was not terminated by reason of her sex.

On that basis, the Emory court held that there was no violation of the Civil Rights Act — a law which the High Court admits is non-existent in this jurisdiction.  The ruling in Emory was therefore specific to a particular statute.  It never touched upon the validity (or invalidity) of the employer policy upon other grounds.  It merely said that the policy was not discriminatory in the context of that statute. 

Emory, therefore, does not support the Court’s holding in the Glaxo case.  It is so far removed from the issue in the Glaxo case as to be useless to the Court.

I know I’m nitpicking but I’m doing this because I think the Glaxo case represents a violation of our basic freedoms.  I am disappointed that the Court did not engage in weighing the property right of the employer to protect its commercial interests as against the inherent freedom of an individual to choose one’s spouse.  I think such an analysis would have made the case much richer and provide employers guidance when they consider policies that impinge upon other rights we hold dear. 

In the meantime, this footnote-picking exercise may be useful to those among you who seek to have the Glaxo case reviewed.

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United States District Court; M.D. Georgia, Columbus Division.

ELLIOTT, D. J.

*1 This is an action brought under the provisions of the Civil Rights Act of 1964, 42 U. S. C. § 2000e, et seq., in which the Plaintiff contends that the Defendant, Georgia Hospital Service Association, Inc., has been guilty of unlawful discrimination against her by allegedly terminating her employment because of her sex, in consequence of which the Plaintiff seeks to recover lost pay, attorney’s fees and the issuance of a permanent injunction. Full evidentiary hearing was had in connection with the matter and the Court files this opinion in conformity with the requirements of Rule 52 of the Federal Rules of Civil Procedure.

The Defendant, Georgia Hospital Service Association, Inc., while not technically an insurance company, is in the health insurance business, operating as “Blue Cross-Blue Shield”, and is an “employer” within the meaning of the Civil Rights Act referred to, employing at the present time approximately 280 persons in various capacities. [FN1] The Plaintiff, Mrs. Emory, was employed by the Defendant from September, 1960 until March, 1966, and then again from October, 1966 until July, 1968. She was employed to perform general secretarial and office work and her performance of services was always deemed satisfactory. Her services were terminated by the company in July, 1968 for reasons which will hereafter appear.

FN1 It is conceded that the other named defendant, Physicians Service, Inc., is not an employer and is improperly joined as a defendant in this action.

The health insurance business is highly competitive and it is quite advantageous for any company seeking to acquire a new account to have information concerning any difficulties or dissatisfaction which may exist between a competitor and an account being serviced by the competitor. To protect against the possibility of intentional or unintentional leakage of such information the Defendant company several years ago adopted a policy of not employing or retaining in employment any person whose spouse is employed by an insurance company in active competition with Defendant in the health insurance field. This policy applied to both male and female employees and was made known to the employees generally from time to time in employee meetings.

The principal office and place of business of the Defendant company is in Columbus, Georgia. In July, 1968 Mrs. Emory was employed in a branch office in Macon, Georgia. On July 22, 1968 Mrs. Emory’s husband, Robert Emory, became employed as a salesman for Pilot Life Insurance Company, which company is in active direct competition with the Defendant company in the health insurance field. Upon learning of this development a representative of the Defendant company notified Mrs. Emory that in keeping with company policy it would be necessary for her employment with the Defendant company to be terminated unless her husband terminated his employment with Pilot Life Insurance Company. Mrs. Emory stated to the company representative that her husband was not agreeable to terminating his new employment, and in consequence the representative of the Defendant company terminated Mrs. Emory’s employment on July 29, 1968, at which time she was granted two weeks severance pay. Since that time Mrs. Emory has been employed by other employers.

*2 Immediately following her discharge as an employee Mrs. Emory complained to the management of the Defendant company that she felt that she had been mistreated, first, because she contended that she had not known of this company policy prior to this time, and second, because she contended that there was a male employee in the Macon branch office whose wife was employed by a competing insurance company and that this male employee had not been required to make the same choice which she had had to make. In response to Mrs. Emory’s complaint the Defendant company took the following actions: first, on August 5, 1968 notification was mailed to all employees informing them in writing of the company policy referred to; second, on September 3, 1968 the male employee in the Macon office to whom Mrs. Emory referred was notified by the Defendant company that it would be necessary to terminate his employment unless his wife terminated her employment with the competing company; [FN2] and third, on September 3, 1968 the Defendant company wrote Mrs. Emory a letter offering to reinstate her in her previous employment at no reduction in salary and without loss of any benefits upon the sole condition that her husband terminate his employment with Pilot Life Insurance Company. Mrs. Emory refused to accept reemployment on this condition and instead accepted employment elsewhere, as above indicated. On August 14, 1970 she brought this suit.

FN2 It appears that the home office of the Defendant company had not known of this situation involving the male employee until advised of it by Mrs. Emory. The male employee complied with the company policy by having his wife terminate her employment with the competing company.

Having heard and weighed the evidence in this case, the Court concludes as a matter of fact that Mrs. Emory’s employment was terminated because of the standing policy of the Defendant company above described and that her employment was not terminated by reason of her sex. It seems to be apparent to all concerned that this termination could have been handled in a more diplomatic fashion, but the Civil Rights Act does not require diplomacy and our decision is not to be influenced by that consideration. What the Court holds is that the allegations of the complaint charging discrimination by virtue of sex are not sustained by the evidence. Accordingly, all the prayers of the complaint are denied and judgment will be entered for the Defendant.

Emory v. Georgia Hospital Service Assn., Inc. dba Blue Cross

Not Reported in F.Supp., 1971 WL 216 (M.D.Ga.), 4 Fair Empl.Prac.Cas. (BNA) 891, 4 Empl. Prac. Dec. P 7785