gether with the expenses claimed, an amount substantially less than the amount submitted by Mrs. Roberts as a reasonable fee for her services in this case; hence this appeal.

The Women's Equity Action League as Amicus Curiae supports Mrs. Roberts in her request for a fee that includes compensation of $40.00 an hour for her time spent on the case and also includes a fixed fee of at least $6,000 for the result obtained on the appeal in obtaining a complete reversal and in establishing an interpretation of a new and difficult statute. The out-ofpocket expenses claimed were not contested below and were granted; that amount, therefore, is not in issue on the appeal.

The American Bar Association guidelines not mentioned specifically by the District Court in setting the fee were the novelty of the questions involved in the case, the benefit to other women in employment or potential employment all over the country, the important public interest served as a result of the decision in the case, and the experience and skill of the lawyer performing the services. It can only be assumed from the absence of any mention of these factors that the Court did not consider them in setting the fee or did not attribute to them the importance which they deserve in this

case.

In regard to the contingency or certainty of the compensation, the Court stated that because the fee under the statute is awarded only to the prevailing party, "the fee has some of the attributes of a contingent fee arrangement," which seems to imply that some consideration was given to the contingency aspect but not as much as is customary in contingent-fee arrangements.

We submit that the District Court did not consider the above factors properly in determining the attorney's fee for Mrs. Roberts and that this Court should set the fee in accordance with Mrs. Roberts' request. Appellate courts are themselves experts as to the reasonableness of attorney fees, and may, in the interest of justice, fix fees of counsel, albeit in disagreement on the evidence with the views of the trial court. Columbian Nat. Life Ins. Co. v. Keyes, 138 F. 2d 382 (8th Cir. 1943), cert. den. 321 U.S. 765, 64 S. Ct. 521, 88 L. Ed. 1061, and Columbian Nat. Life Ins. Co. v. Marguerite Keyes, Inc., 321 U.S. 765, 64 S. Ct. 521, 88 L. Ed. 1061; First Nat. Bank of Fort Worth v. U.S., 301 F. Supp. 667 (N.D. Tex. 1969).

Considering first the novelty of the questions involved in the case and the fact that it was a case of first impression, the importance of the Fifth Circuit decision is not the overturning of a state weight-lifting restriction (the restriction was in fact rescinded by administrative agency action during the progress of the case) but the construction given by the Court to the bona fide occupational qualification exemption in the statute, 42 U.S.C., Sec. 2000e2(e) (1) [Sec. 703 (e)]. The Court began its Opinion by stating that "This appeal and cross-appeal present important unsettled questions concerning the proper interpretation of Title VII of the Civil Rights Act of 1964 . . ." 408 F. 2d 228, 229 (5th Cir. 1969). By holding that the bona fide occupational qualification exemption is to be narrowly construed and by rejecting defendant's stereotyped labelling of the job in question as "strenuous," the effect of the decision was to prevent a construction of the statute which would have wiped out practically all the benefits intended for women in employment under Title VII. The Fifth Circuit decision in this case was the first Court decision thus to hold, and the legal issues presented in the litigation constituted pioneer territory to the lawers representing the plaintiff and a doubly difficult task for the lawyer prosecuting the appeal when the case had been lost on the trial. In all fairness to the Court below, the Court's Order does refer to the "extent of the difficulty of the appeal" as a factor considered. There is no mention, however, of the unsettled state of the law in a case of first impression, as was this case.

Nor does the Court below discuss the significance of the result obtained in this case. The result of the decision benefited not only the plaintiff in awarding her complete recovery on all of the remedies she had sought, but also benefited other women employees at Southern Bell who thereby were eligible for jobs in the classification from which they and plaintiff had previously been excluded. See Exhibits B, C, and D attached to Affidavit of Sylvia Roberts Relative to Reasonable Attorney Fees. Although plaintiff's action was not a class suit, the decision is obviously of value to women em

ployees or potential employees all over the country against whom employers might attempt to raise a bona fide occupational qualification defense based on the class stereotypes knocked down by the Fifth Circuit in this case. The decision consequently serves the important public interest against sex discrimination in employment, which is one of the purposes of Title VII.

Sex discrimination and race discrimination in employment are equally important, and women are entitled to the statute's protections against discrimination in the same manner as are racial groups. The Third Circuit, for example, has stated: "We do not make the distinction . that discrimination on account of sex is any less reprehensible or any less protected than discrimination because of race." Rosen v. Public Service Electric & Gas Co., 409 F. 2d 775 (3d Cir. 1969). In Local 186, International Pulp, Sulfite & Paper Mill Workers v. Minnesota Mining & Manufacturing Co., 304 F. Supp. 1284, 1287, 1289 (N.D. Ind. 1969), the Court declared that it "does not and will not draw any legal distinctions between the seriousness and gravamen of acts and policies of sexual discrimination alleged herein and the more frequently litigated acts of racial discrimination.

[T]his court cannot conclude that under the allegations herein presented, sexual discrimination differs in any significant way from racial discrimination as a form of class discrimination."

As the Supreme Court stated with reference to Title II of the Civil Rights Act of 1964, when a plaintiff obtains an injunction under Title II,

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he does so not for himself alone but also as a 'private attorney general,' vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees-not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-2 (1968). Similarly, where Title VII plaintiffs seek and obtain injunctive relief, they are acting as agents of the national policy that seeks to eliminate racial, sex, and other discrimination in employment. Clark v. American Marine Corp., 320 F. Supp. 709 (E.D. La. 1970); Bowe v. Colgate-Palmolive Co., 416 F. 2d 711 (7th Cir. 1969).

Remedies under Title VII may include, as they did in this case, back pay to the plaintiff as well as injunctive relief. Sec. 706 (g). Monetary recovery in a court action is not decisive, however, in determining the amount of attorney's fees to be awarded, and a fee is often payable when the benefit cannot be translated into dollar terms. Freeman v. Ryan, 408 F. 2d 1204 (D.C. Cir. 1968); Ratner v. Bakery and Confectionery Workers Int. Union, 354 F. 2d 504 (D.C. Cir. 1965). The amount of recovery in a case may be small, but the legal principles established by counsel for the plaintiff may be extremely important. A fee based on the monetary amount of recovery may be an insufficient award for counsel's services, therefore, because it ignores the legal principles and the complexity of the work involved. Trans World Airlines, Inc. v. Hughes, 312 F. Supp. 478 (S.D. N.Y. 1970); Osborn v. Sinclair Refining Co., 207 F. Supp. 856 (D.C. Md. 1962); U.S. ex rel. Sherman v. Carter, 301 F. 2d 467 (9th Cir. 1962).

The Record before the Court on the issue of the attorney's fee properly payable to Mrs. Roberts contains references to other cases as evidence of the impact of the Weeks decision on development of the law under Title VII and also on the interpretation of other legislation, both federal and state, including the Federal Equal Pay statute and New York Executive Law, Sec. 296. The effect of the "Weeks test" is also discussed in 84 Harv. L. Rev. 1109, 1179-1181 (1971).

Another American Bar Association guideline in setting fees which was not mentioned in the Court's Order is comprised of the skill and experience of the attorney who has performed the services. This, of course, is a speculative area to some extent and should not be an area where subjective judgments are allowed to be controlling. Affidavits in the Record from Sylvia Roberts and other members of the Louisiana Bar, including the Affidavit of

the Immediate Past President of the Louisiana Bar Association, all attest to Mrs. Roberts' extensive legal experience and good standing at the Bar.

In Clark v. American Marine Corp., 320 F. Supp. 709 (E.D. La. 1970), aff'd. 437 F. 2d 959 (5th Cir. 1971), a Title VII suit based on race discrimination, plaintiffs were represented by multiple counsel who jointly spent over 580 hours in preparing the case for trial and trying it, resulting in injunctive relief. The Court awarded plaintiffs' counsel a reasonable fee of $20,000, referring to the time spent, the fact that the suit involved interpretation of a new and different statute, and the skill of plaintiffs' lead counsel. The number of hours Mrs. Roberts spent on the Weeks case and that spent by multiple counsel in the Clark case is almost the same; Mrs. Roberts' time on the Weeks case totalled 585 hours. As in Clark, Weeks involved interpretation of a new and difficult statute. The Federal courts have recognized, as discussed above, that race discrimination and sex discrimination are equally serious and are entitled to the same protection of the statute. Surely a subjective judgment as to the relative abilities of plaintiffs' attorneys in the two cases was not the controlling factor which resulted in a substantially higher award of attorney's fees in Clark than in Weeks.

Since the Court Order Awarding Counsel Fees does not mention counsel's experience, ability, and standing at the Bar, we can only assume and the evidence presented as to Mrs. Roberts' legal training, experience, and ability. Lead counsel in the Clark case, praised so graciously by the District Court Judge, had been admitted to the Bar less than half the number of years that Mrs. Roberts had been a member of the Bar, during which time she had had extensive trial and appellate experience.

The Affidavits in the Record of Louisiana and Georgia lawyers indicate that $40.00 an hour would be a reasonable fee for Mrs. Roberts' services in the Weeks case. The minimum hourly fee in Georgia under a 1964 fee schedule is $35.00. The Louisiana fee under a 1963 schedule is $30.00; and in Baton Rouge, the fee is $35.00 an hour for routine matters. (Affidavit of Jerry H. Bankston). The fee schedule established in Texas in 1968 is $40.00 an hour. (Affidavit of George B. Hall). The minimum fee schedule of thee Louisiana State Bar Association states that the minimum hourly rate should be increased to reflect superior achievement, unusual responsibility, or any other factors which justify a higher charge. (Affidavit of George B. Hall).

The Court's award of $15,000 counsel fee to Mrs. Roberts amounts to approximately $25.00 an hour for her services, grossly less than the hourly fee considered currently reasonable by other practitioners and that set by up-to-date minimum fee schedules of State Bar Associations. There is no reason to doubt the accuracy of Mrs. Roberts' time record, submitted by sworn Affidavit, and this Court is cognizant, of course, as was the Court in State of Iowa v. Union Asphalt & Roadoils, Inc., 281 F. Supp. 391 (S.D. Iowa 1968), that

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. . . only a percentage of the research and investigation conducted by attorneys blossom into valuable weapons for use in the arena of legal battle and that the extent of this work can never be ascertained with certainty, even at the conclusion of a case. (281 F. Supp. 391, 400). In regard to the contingent-fee attributes of a fee awarded by statute to the prevailing party, the Court below apparently did not determine the fee according to the standard of what plaintiff would have had to pay her attorney on a contingent-fee basis. It is well established that successful counsel retained on a contingent-fee basis is entitled to a higher fee than if he or she had conducted the litigation for a fixed amount of compensation. Sincock v. Obara, 320 F. Supp. 1098 (D.C. Del. 1970). In Hutchinson v. William C. Barry, Inc., 50 F. Supp. 292 (D.C Mass. 1943), a case brought under the Fair Labor Standards Act, the Court rejected defendant's argument that plaintiff is not entitled to recover as large an attorney's fee as would be allowed if the attorney sued his client for the fee. The Court stated:

"The spirit of the law is that the plaintiff gets as part of his recovery, if he wins, his whole reasonable counsel fees, not some fraction of them. This is so that he will not ordinarily be required to pay anything more to his lawyer.

I therefore determine the fee exactly as I would were the plaintiff sued by his counsel for a fee. Relevant and familiar criteria are set

forth in the Twelfth Canon of the American Bar Association." (50 F. Supp. 292, 298).

In a private antitrust suit, Cape Cod Food Products, Inc. v. National Cranberry Ass'n., 119 F. Supp. 242 (D.C. Mass. 1954), the Court elaborated on its conclusion in Hutchinson as follows:

". . . a losing defendant must pay what it would be reasonable for counsel to charge a victorious plaintiff. The rate is the free market price, the figure which a willing, successful client would pay a willing, successful lawyer. Sometimes the figure may seem high. But so far as price is determined by unique excellence and by social usefulness, the advocate is especially worthy of large recompense. His brevity may reflect extraordinary gifts and thus in itself be indicative of merit. . . . And his simplicity of presentation may be a proof not of the problem's lack of difficulty, but rather of his unmatched native quality.

Unless excellence in the trial lawyer is properly recompensed, the best men [i.e., persons] will not spend their time in court, and thus there will dry up the most essential sources of an independent bar." (119 F. Supp. 242, 244).

The standard of free market price for court awards of counsel fees adopted by the Court in Hutchinson and Cape Cod Food Products has been followed in Union Leader Corp. v. Newspapers of New England, Inc., 218 F. Supp. 490 (D.C. Mass. 1963), and Farmington Dowel Products Co. v. Forster Mfg. Co., Inc., 297 F. Supp. 924 (S.D. Maine 1969, both private antitrust suits.

The fact that the statutes involved in those cases provide for an award of attorney's fees to a prevailing plaintiff does not rule out the application of the same standard to victorious plaintiffs in Title VII cases, even though Sec. 706 (k) provides that counsel fees may be awarded to the prevailing party. As discussed above, the plaintiff in a Title VII case is acting as an agent of the national policy against discrimination, in effect as a "private attorney general" in the public interest. The policy reasons for allowing liberal attorney's fees to victorious plaintiffs do not apply, therefore, to successful defendants. As one commentator has described the system of private individual enforcement of Title VII:

"The system of individual enforcement was the result of a conscious, explicit rejection of a system of administrative enforcement, and liberal awards of attorney's fees to successful complainants are necessary if the system is to work as intended.

*

The statute's provision for awards of attorney's fees to the prevailing "party" does not mean they should be made to prevailing respondents as liberally as to prevailing claimants. Statements in the legislative history directly support the argument that it is the claimant who is to be benefited by the attorney's fee provisions. [*] Awards to respondents should be limited to unusual situations, such as defense against clearly fraudulent claims."

In Clark v. American Marine Corp., supra, the Court in awarding a fee of $20,000 stated: “I don't think that the plaintiffs could hire a lawyer of equal skill on a contingent basis in New Orleans to do the job for less." (320 F. Supp. 709, 712) (Emphasis added)

The policy reasons for following the standard of what would be reasonable for counsel to charge a victorious plaintiff in setting counsel fees in Title VII cases are not only to enable plaintiffs of limited means to obtain the legal competence and experience necessary to conduct complex litigation such as Title VII cases, but also to deter would-be discriminators from future violations of the provisions of Title VII.

In accord with the principle of statutory construction that humanitarian, remedial statutes are to be liberally construed, the courts have given a liberal construction to procedural issues under Title VII in order to effectuate the purposes and spirit of the statute. For the same reasons, Sec. 706(k) should

110 Cong. Rec. 12,724 (1964).

1 Walker, Title VII: Complaint and Enforcement Procedures and Relief and Remedies, 7 B.C. Ind. & Com. L. Rev. 495, 505-6 (1966).

2 See cases cited in Equal Employment Opportunity Commission, Fifth Annual Report (1969-70), pp. 18-19.

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receive the liberal construction accorded to the other procedural provisions of Title VII.

Conclusion

For the foregoing reasons, we respectfully submit that this Court set the attorney's fee for Sylvia Roberts in accordance with her request so that the fee would include compensation of $40.00 an hour for her time spent on the case and also a fixed fee of at least $6,000 for the result on appeal in obtaining a complete reversal and in establishing an interpretation of a new and difficult statute in a case of first impression.

Respectfully submitted.

RUTH M. FERRELL, Attorney for Women's Equity, Action League, Amicus Curiae.