Marlon Green V
Anti-Discrimination Commission v. Continental Airlines, Inc. 372 U.S. 714 no.
146. Argued March 28, 1963. - decided April 22, 1963.* - 149 Colo. 259, 368
p.2d 970, reversed. Together with no. 492, Green v. Continental Airlines, Inc.,
on certiorari to the same court.
After administrative hearings, the Colorado anti-discrimination commission found
that respondent, an interstate air carrier with headquarters in Colorado, had,
within that state, rejected the application of a negro for a job as a pilot
solely because of his race and that this was an unfair employment practice
prohibited by the Colorado anti-discrimination act of 1957, and it ordered
respondent to cease and desist from such discriminatory practices and to give
the complainant the first opportunity to enroll in its training school in its
review, a state court held that the act could not constitutionally be applied to
the flight crew of an interstate air carrier, and it set aside the commission's
findings and dismissed the complaint. The supreme court of Colorado affirmed.
Held: the judgment is reversed and the cause is remanded for further
proceedings. Pp. 716-725.
(a) The judgment below does not rest upon an independent and adequate state
ground but upon the state supreme court's application and interpretation of the
federal constitution, federal statutes and executive orders, and this court has
jurisdiction on certiorari. P. 718.
(b) Colorado’s requirement that respondent refrain from racial discrimination
in its hiring of pilots in that state does not unduly burden interstate
commerce. Hall v. Decuir, 95 U.S. 485, and Morgan v. Virginia, 328 U.S. 373,
distinguished. Pp. 718-722.
(c) this field has not been so pervasively covered or preempted by the civil
aeronautics act of 1938, now the federal aviation act of 1958, the railway labor
act or executive orders as to prevent Colorado from applying its
anti-discrimination act to respondent, as it did here. Pp. 722-725.
Colorado anti-discrimination commission et al. V. Continental Airlines, Inc.
Certiorari to the supreme court of Colorado.
Mr. Justice Black delivered the opinion of the court.
Petitioner Marlon d. Green, a Negro, applied for a job as a pilot with
respondent continental air lines, inc., an interstate air carrier. His
application was submitted at continental's headquarters in Denver, Colorado, and
was later considered and rejected there. Green then made complaint to the
Colorado anti-discrimination commission that continental had refused to hire him
because he was a Negro. The Colorado anti-discrimination act of 1957 provides
that it is an unfair employment practice for an employer "to refuse to hire, to
discharge, to promote or demote, or to discriminate in matters of compensation
against, any person otherwise qualified, because of race, creed, color, national
origin or ancestry." (fn1) after investigation and efforts at conciliation,
the commission held extensive hearings and found as a fact "that the only reason
that the complainant was not selected for the training school was because of his
race." (fn2) the commission ordered continental to cease and desist from such
discriminatory practices and to "give to the complainant the first opportunity
to enroll in its training school in its next course ... ." on review the
district court in and for the city and county of Denver set aside the
commission's findings and dismissed green's complaint. It held that the
anti-discrimination act could not "constitutionally be extended to cover the
flight crew personnel of an interstate air carrier" because it would impose an
undue burden upon commerce in violation of art. I, sec. 8, cl. 3, of the united
states constitution, which gives congress power "to regulate commerce ...
Among the several states ... ," and because the field of law concerning racial
discrimination in the interstate operation of carriers is preempted by the
railway labor act, (fn3) the civil aeronautics act of 1938, (fn4) and federal
executive orders. The supreme court of Colorado affirmed the judgment of
dismissal but discussed only the question of whether the act as applied placed
an undue burden on commerce, concluding that it did. 149 Colo. 259, 368 p.2d
obvious importance of even partial invalidation of a state law designed to
prevent the discriminatory denial of job opportunities prompted us to grant
certiorari. 371 U.S. 809 (1962).
First. Continental argues that the state Supreme Court decision rested on an
independent and adequate nonfederal ground. For that argument, it relies on the
trial court's statement "that the Colorado legislature was not attempting to
legislate concerning problems
involving interstate commerce" and the statement of the supreme court of
"the only question resolved was that of jurisdiction. The trial court determined
that the act was inapplicable to employees of those engaged in interstate
commerce, and the judgment was based exclusively on that ground." 149 Colo., at
265, 368 p.2d, at 973.
We reject this contention. The trial court itself did not rest on this ground.
Instead, it clearly and unequivocally stated that the case presented a
constitutional question of whether the act could legally be applied to
interstate operations. Nor did the supreme court of Colorado rely on this
ground. It interpreted the trial court's opinion as having held that the act
was invalid insofar as it regulated interstate air carriers. The court further
stated that the question was whether the act could be applied to interstate
carriers, which it answered by concluding that under the federal constitution
the state legislature had no power to deal with such matters.
are satisfied that the courts below rested their judgments on their
interpretation of the united states constitution and the preemptive effect of
federal statutes and executive orders.
Second. In holding that the Colorado statute imposed an undue burden on
commerce, the state supreme court relied on the principle, first stated in
Cooley v. Board of wardens of the port of Philadelphia, 12 how. 299, that
states have no power to act in those areas of
interstate commerce which by their nature require uniformity of regulation,
even though congress has not legislated on the subject.
(fn5) the state court read two prior decisions of this court, hall v. Decuir,
95 U.S. 485 (1878), and Morgan v. Virginia, 328 U.S. 373 (1946), as having
established that the field of racial discrimination by an interstate carrier
must be free from diverse state regulation and governed uniformly, if at all, by
congress. We do not believe those cases stated so encompassing a rule. The
line separating the powers of a state from the exclusive power of congress is
not always distinctly marked; courts must examine closely the facts of each case
to determine whether the dangers and hardships of diverse regulation justify
foreclosing a state from the exercise of its traditional powers. This was
emphatically pointed out in hall v. Decuir, Supra, the very case upon which
continental chiefly relies:
"Judges not unfrequently differ in their reasons for a decision in which they
concur. Under such circumstances it would be a useless task to undertake to fix
an arbitrary rule by which the line must in all cases be located. It is far
better to leave a matter of such delicacy to be settled in each case upon a view
of the particular rights involved. 95 U.S., at 488.
The circumstances in hall v. Decuir were that a Louisiana law forbidding
carriers to discriminate on account of race or color had been applied so as to
hold a steamboat owner liable for damages for assigning a colored passenger to
one cabin rather than another. This was held to violate the commerce clause,
but only after a careful analysis of the effects of the law on that carrier and
other things, the court pointed out that if each of the 10 states bordering the
Mississippi River were free to regulate the carrier and to provide for its own
passengers and freight, the resulting confusion would produce great
inconvenience and unnecessary hardships. The court concluded that:
"commerce cannot flourish in the midst of such embarrassments. No carrier of
passengers can conduct his business with satisfaction to himself, or comfort to
those employing him, if on one side of a state line his passengers, both white
and colored, must be permitted to occupy the same cabin, and on the other be
kept separate. Uniformity in the regulations by which he is to be governed from
one end to the other of his route is a necessity in his business ... ." 95
U.S., at 489.
After the same kind of analysis, the court in Morgan v. Virginia, supra, held
that a Virginia law requiring segregation of motor carrier passengers, including
those on interstate journeys, infringed the commerce clause because uniform
regulation was essential.
court emphasized the restriction on the passengers' freedom to choose
accommodations and the inconvenience of constantly requiring passengers to shift
seats. As in hall v. Decuir, the court explicitly recognized the absence of any
one, sure test for deciding these burden-on-commerce cases. It concluded,
however, that the circumstances before it showed that there would be a practical
interference with carrier
transportation if diverse state laws were permitted to stand.
importance of a particularized inquiry into the existence of a burden on
commerce is again illustrated by bob-lo excursion co. V. Michigan, 333 U.S. 28
(1948), where the court had before it a state statute requiring common carriers
to serve all people alike regardless of color. The court upheld the law as
applied to steamships transporting patrons between Michigan and Canada.
Following the rule that each case must be adjudged on its particular facts, the
court concluded that neither hall nor Morgan was "comparable in its facts,
whether in the degree of localization of the commerce involved; in the
attenuating effects, if any, upon the commerce ... ; or in any actual
probability of conflicting regulations by different sovereignties." 333 U.S.,
We are not convinced that commerce will be unduly burdened if continental is
required by Colorado to refrain from racial discrimination in its hiring of
pilots in that state. Not only is the hiring within a state of an employee,
even for an interstate job, a much more localized matter than the transporting
of passengers from state to state (fn6) but more significantly the threat of
diverse and conflicting regulation of hiring practices is virtually
nonexistent. In hall and in Morgan the court assumed the validity both of state
laws requiring segregation and of state laws forbidding segregation. Were there
a possibility that a pilot hired in Colorado could be barred solely because of
his color from serving a carrier in another state, then this case might well be
controlled by our prior holdings.
under our more recent decisions (fn7) any state or federal law requiring
applicants for any job to be turned away because of their color would be invalid
under the due process clause of the Fifth Amendment and the due process and
equal protection clauses of the fourteenth amendment. The kind of burden that
was thought possible in the hall and Morgan cases, therefore, simply cannot
exist here. It is, of course, possible that states could impose such onerous,
harassing, and conflicting conditions on an interstate carrier's hiring of
employees that the burden would hamper the carrier's satisfactory performance of
its functions. But that is not this case. We hold that the Colorado statute as
applied here to prevent discrimination in hiring on account of race does not
impose a constitutionally prohibited burden upon interstate commerce.
Third. Continental argues that federal law has so pervasively covered the field
of protecting people in interstate commerce from racial discrimination that the
states are barred from enacting legislation in this field. It is not contended,
however, that the Colorado statute is in direct conflict with federal law, (fn8)
that it denies rights granted by congress, (fn9) or that it stands as an
obstacle to the full effectiveness of a federal statute. (fn10) rather
continental argues that:
"when congress has taken the particular subject-matter in hand coincidence is
as ineffective as opposition, and a state law is not to be declared a help
because it attempts to go farther than congress has seen fit to go." (fn11) but
this court has also said that the mere "fact of identity does not mean the
automatic invalidity of state measures." (fn12) to hold that a state statute
identical in purpose with a federal statute is invalid under the supremacy
clause, we must be able to conclude that the purpose of the federal statute
would to some extent be frustrated by the state statute. We can reach no such
Continental relies first on the civil aeronautics act of 1938, (fn13) now the
federal aviation act of 1958, (fn14) and its broad general provisions forbidding
air carriers to subject any particular person to "any unjust discrimination or
any undue or unreasonable prejudice or disadvantage in any respect whatsoever"
(fn15) and requiring "the promotion of adequate, economical, and efficient
service by air carriers at reasonable charges, without unjust discriminations,
undue preferences or advantages, or unfair or destructive competitive practices
... ." (fn16) this is a familiar type of regulation, aimed primarily at rate
discrimination injurious to shippers, competitors, and localities. (fn17) but
we may assume, for present purposes, that these provisions prohibit racial
discrimination against passengers and other customers (fn18) and that they
protect job applicants or employees from discrimination on account of race.
civil aeronautics board and the administrator of the federal aviation agency
have indeed broad authority over flight crews of air carriers, (fn19) much of
which has been exercised by regulations. (fn20) notwithstanding this broad
authority, we are satisfied that congress in the civil aeronautics act of 1938
and its successor had no express or implied intent to bar state legislation in
this field and that the Colorado statute, at least so long as any power the
civil aeronautics board may have remains "dormant and unexercised," (fn21) will
not frustrate any part of the purpose of the federal legislation. (fn22) there
is even less reason to say that congress, in passing the railway labor act
(fn23) and making certain of its provisions applicable to air carriers, intended
to bar states from protecting employees against racial discrimination. No
provision in the act even mentions discrimination in hiring.
true that in several cases we have held that the exclusive bargaining agents
authorized by the act must not use their powers to discriminate against minority
groups whom they are supposed to represent. (fn24) and we have held that
employers too may be enjoined from carrying out provisions of a discriminatory
bargaining agreement. (fn25) but the duty the act imposes is one of fair
representation and it is imposed upon the union. The employer is merely
prohibited from aiding the union in breaching its duty. Nothing in the railway
labor act or in our cases suggests that the act places upon an air carrier a
duty to engage only in fair nondiscriminatory hiring practices. The act has
never been used for that purpose, and we cannot hold it bars Colorado’s anti
Finally, we reject the argument that Colorado’s anti-discrimination act cannot
constitutionally be enforced because of executive orders requiring government
contracting agencies to include in their contracts clauses by which contractors
agree not to discriminate against employees or applicants because of their race,
religion, color, or national origin. (fn26) the district court purported to
take judicial notice that "a certificated commercial carrier by air (such as
respondent) is obligated to and in fact does transport united states mail under
contract with the united states government."
government answers that in fact it has no contract with continental and that,
while 49 U.S.C. sec. 1375 requires air lines to carry mail, it does not forbid
discrimination on account of race or compel the execution of a contract subject
to executive orders. We do not rest on this ground alone, however, nor do we
reach the question of whether an executive order can foreclose state
legislation. It is impossible for us to believe that the executive intended for
its orders to regulate air carrier discrimination among employees so pervasively
as to preempt state legislation intended to accomplish the same purpose.
The judgment of the supreme court of Colorado is reversed and the cause is
remanded for further proceedings not inconsistent with this opinion. It is so
Fn1 colo. Rev. Stat. Ann. (supp. 1960) sec. 80-24-6.
Fn2 the commission also found that continental was "guilty of a discriminatory
and unfair employment practice in requiring on its application form, the racial
identity of the applicant and the requirement of a photo to be attached to the
application," contrary to the commission's regulation.
Fn3 44 stat. 577, as amended, 45 U.S.c. secs. 151-188.
Fn4 52 stat. 973, as amended, 49 U.S.c. (1952 ed.) Secs. 401-722, now federal
aviation act of 1958, 72 stat. 731, 49 U.S.c. secs. 1301 1542.
Fn5 it is not claimed in this case that the Colorado act discriminated against
interstate commerce, see, e.g., best & co. V. Maxwell, 311 U.S. 454 (1940), or
that it places a substantial economic burden on continental, see, e.g., Bibb v.
Navajo freight lines, 359 U.S. 520 (1959).
Fn6 see, e.g., California v. Thompson, 313 U.S. 109 (1941); Erie r. Co. V.
Williams, 233 U.S. 685 (1914).
Fn7 e.g., brown v. Board of education, 347 U.S. 483 (1954); Bolling v. Sharpe,
347 U.S. 497 (1954); bailey v. Patterson, 369 U.S. 31 (1962).
Fn8 see Mcdermott v. Wisconsin, 228 U.S. 115 (1913).
Fn9 see, e.g., united mine workers v. Arkansas oak flooring co., 351 U.S. 62
Fn10 see, e.g., hill v. Florida, 325 U.S. 538 (1945); Hines v. Davidowitz, 312
U.S. 52 (1941).
Fn11 Charleston & w.c.r. co. V. Varnville furniture co., 237 U.S. 597, 604
Fn12 California v. Zook, 336 U.S. 725, 730 (1949).
Fn13 52 stat. 973, as amended, 49 U.S.c. (1952 ed.) Secs. 401 722.
Fn14 the civil aeronautics act of 1938 was substantially reenacted by the
federal aviation act of 1958, 72 stat. 731, 49 U.S.c. secs. 1301 1542. Some of
the powers and duties of the civil aeronautics board were transferred to the
administrator of the federal aviation agency.
Fn15 49 U.S.c. (1952 ed.) Sec. 484(b), now 49 U.S.c. sec. 1374(b).
Fn16 49 U.S.c. (1952 ed.) Sec. 402(c), now 49 U.S.c. sec. 1302(c).
Fn17 compare interstate commerce act sec. 3(1), 49 U.S.c. sec. 3(1).
Fn18 see Fitzgerald v. Pan American world airways, 229 f.2d 499 (c.a.2d cir.
1956); united states v. City of Montgomery, 201 f. Supp. 590 (m.d. ala. 1962);
cf. Henderson v. United states, 339 U.S. 816 (1950); Mitchell v. United states,
313 U.S. 80 (1941).
Fn19 see 49 U.S.c. (1952 ed.) Secs. 552, 559, now 49 U.S.c. secs. 1422,
Fn20 see, e.g., 14 cfr secs. 20.40, 20.42-20.45, 20.121, 21.1, 40.300.
Fn21 Bethlehem steel co. V. New York state labor rel. Bd., 330 U.S. 767, 775
(1947). See parker v. Brown, 317 U.S. 341 (1943); h.p. Welch co. V. New
Hampshire, 306 U.S. 79 (1939).
Fn22 if the federal authorities seek to deal with discrimination in hiring
practices and their power to do so is upheld, that would raise questions not
presented here. Compare California v. Thompson, 313 U.S. 109 (1941), with
California v. Zook, 336 U.S. 725 (1949).
Fn23 44 stat. 577, as amended, 45 U.S.c. secs. 151-188.
Fn24 see, e.g., conley v. Gibson, 355 U.S. 41 (1957); Steele v. Louisiana &
Nashville r. Co., 323 U.S. 192 (1944).
Fn25 see, e.g., brotherhood of r. Trainmen v. Howard, 343 U.S. 768, 775
Fn26 executive order no. 10479, 18 fed. Reg. 4899 (Aug. 13, 1953), executive
order no. 10557, 19 fed. Reg. 5655 (Sept. 3, 1954), both
revoked and superseded by executive order no. 10925, 26 fed. Reg. 1977 (Mar. 6,