Karen Miranda v. B & B Cash Grocery Store, Inc., Karen Miranda v. B & B Cash Grocery Store, Inc.

DUBINA, Circuit Judge,

concurring specially:

I concur with the majority’s opinion. However, I write separately to note the uncertainty pervading the law as to Miranda’s Title VII claim.

This case presents squarely for the first time in this circuit the issue of Title VII’s relationship to the Equal Pay Act (“EPA”). *1535 As I understand the majority’s holding, Miranda succeeds upon a theory of intentional sex-based wage discrimination under Title VII, regardless of whether she succeeds under her claim under the EPA. In so holding, the majority’s opinion confronts an issue about which there is much conflict. That is, what standards are to be applied to intentional sex-based wage discrimination claims brought under Title VII? The majority holds that traditional McDonnell Douglas/Burdine standards apply. I agree.

Courts differ as to the kind of evidence sufficient to support Gunther-based Title VII claims. 1 For instance, the Fifth and Seventh Circuits view these claims narrowly. In E.E.O.C v. Sears Roebuck & Co., 839 F.2d 302 (7th Cir.1988), the Seventh Circuit stressed the “limited scope” of Gunther. Id. at 340 . Under the Seventh Circuit’s approach, only evidence of discrimination that is “clear and straightforward” would be sufficient to make out a Title VII wage discrimination claim not based on equal work. Sears, 839 F.2d at 342 . Moreover, Sears adopted the dissent’s argument in Gunther that

[a]ll that [Gunther ] seems to mean ... is “that even absent a showing of equal work, there is a cause of action under Title VII when there is direct evidence that an employer has intentionally depressed a woman’s salary because she is a woman. The decision today does not approve a cause of action based on a comparison of the wage rates of dissimilar jobs.

Sears, 839 F.2d at 341 (quoting Gunther, 452 U.S. at 204, 101 S.Ct. at 2265 (Rehnquist, J., dissenting) (emphasis in original)).

In Plemer v. Parsons-Gilbane, 713 F.2d 1127 (5th Cir.1983), the Fifth Circuit emphasized Gunther’s unique facts to determine that the plaintiff before it failed to make out a Title VII wage discrimination case not based on equal pay. Plemer cites Gunther’s continual references to the uniqueness of the plaintiff’s claim and the strength of the evidence being offered, i.e. direct evidence. The Supreme Court, according to Plemer , “was concerned with blatant cases of sex discrimination in which the only stumbling block to underpaid females’ causes of action was the fact that the victimized women did not hold jobs similar to those held by men.” Id. at 1133 (emphasis supplied).

The Plemer court found that to succeed under a Gunther-based suit, the plaintiff must (1) show a “transparently sex-biased system for wage determination, or (2) offer “direct evidence” (other than that offered to prove an “equal pay for equal work” claim) that the employer paid her less than it would have had she been a male. Id. at 1133 . Determining that the plaintiff’s case lacked such evidence and therefore fell beyond the scope of a Gunther-based claim, *1536 the court then determined whether the plaintiff succeeded under her “classic equal pay act” claim theory.

Thus, according to the Fifth and Seventh Circuits, Gunther allows plaintiffs who cannot prove “equal work” under the EPA to proceed under Title VII, but only upon direct evidence of intentional wage discrimination based on sex. Absent such a showing, the Fifth and Seventh Circuits will not entertain suits based on a comparison of wages paid for dissimilar jobs.

The Ninth Circuit, on the other hand, accepts traditional McDonnell Douglas/Burdine proof of discriminatory intent. In Spaulding v. University of Washington, 740 F.2d 686 (9th Cir.), cert. denied, 469 U.S. 1086 , 105 S.Ct. 511 , 83 L.Ed.2d 401 (1984), overruled on other grounds, Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir.1987) (en banc), the Ninth Circuit declined to specify the minimum factors required for plaintiffs to establish a prima facie Title VII case of sex-based wage discrimination. However, noting McDonnell Douglas ’ flexibility, the court stated that a plaintiff’s case rests “solely on evidence creating an inference that the wage disparity ... was more likely than not the result of intentional sex discrimination.” Spaulding, 740 F.2d at 700 . Other courts have likewise adopted this standard. See International Union, etc. v. Michigan, 886 F.2d 766, 769 (6th Cir.1989) (in case of mere rough job comparability, intentional discrimination must be shown); Foster, 772 F.2d at 1465 n. 5 (Title VII wage discrimination claim not based on equal work theory must be analyzed separately under Title VII standards); American Federation of State, County & Municipal Employees, AFL-CIO v. County of Nassau, 799 F.Supp. 1870 (E.D.N.Y.1992) (applying traditional Title VII intentional discrimination standards to Title VII intentional wage discrimination claim based on sex); but see Gallagher v. Kleinwort Benson Government Secur., Inc., 698 F.Supp. 1401, 1405 (E.D.Ill.1988) (circumstantial evidence insufficient to meet Gunther standard).

I am troubled by the strict interpretation of Gunther advanced by the Fifth and Seventh Circuits. Moreover, I agree with the majority that the “direct evidence” standard suggested by the Supreme Court and adopted by the Fifth and Seventh Circuits eviscerates the standards and burdens for a Title VII case as set out by the Court in Burdine and McDonnell Douglas. Disparate treatment cases do not ordinarily require direct evidence; indeed, it almost never exists.

Moreover, I am disturbed by a standard that requires direct evidence of sex-based wage discrimination in one case, but permits circumstantial evidence in an identical case brought upon a theory of race discrimination. Indeed, as I understand it, a black woman claiming wage discrimination based on color would need to proffer circumstantial evidence only; however, the same wage discrimination claim based this time on sex would then require direct evidence. This is not logical. It seems to me that plaintiffs who bring Gunther-based claims should be held to the same standards as any other Title VII disparate treatment plaintiff. See Forsberg v. Pacific Northwest Bell Tel. Co., 840 F.2d 1409, 1418 (9th Cir.1988) (although direct proof of discrimination is difficult to obtain, requisite discriminatory intent may be inferred from circumstantial evidence) (citing Fumco Construction Corp. v. Waters, 438 U.S. 567, 576 , 98 S.Ct. 2943, 2949 , 57 L.Ed.2d 957 (1978).

This is a complex area of law, suffused with legislative and judicial uncertainty. Nonetheless, the majority’s approach is correct. Miranda was discriminated against. Should she on remand fail to meet the equal work requirement of the EPA, the direct evidence standard advanced by the Fifth and Seventh Circuits would most likely strip her of legal recourse. Gunther teaches that Title VII is broader than the EPA. The majority’s decision properly delineates the contours of its breadth.

. Gunther-based causes of action under Title VII are those brought upon a theory of intentional sex-based wage discrimination. Another cause of action lies under Title VII based upon a theory of equal work for unequal pay. The standards to be applied to a Title VII claim brought under an equal work theory are vigorously disputed. See Fallon v. Illinois, 882 F.2d 1206 (7th Cir.1989) (sex-based salary discrimination claims under Title VII and EPA are not coextensive because of differing burdens of proof); Peters v. Shreveport, 818 F.2d 1148, 1160-61 (5th Cir.1987) (Bennett Amendment does not incorporate structure of sex discrimination claims under the EPA into Title VII); see also Brewster v. Barnes, 788 F.2d 985 , 992-93 n. 13 (4th Cir.1986) (liability under EPA not tantamount to finding of intentional discrimination under Title VII); Churchill v. International Business Machines, Inc., Nat. Service Div., 759 F.Supp. 1089, 1096-97 (D.NJ.1991) (Title VII claim for sex-based wage discrimination to be decided according to traditional Title VII burdens); but see Korte v. Diemer, 909 F.2d 954, 957-58 (6th Cir.1990) (analysis of unequal pay for equal work claim essentially the same under both Equal Pay Act and Title VII); McKee v. Bi-State Development Agency, 801 F.2d 1014, 1019 (8th Cir.1986) (where claim is for unequal pay for equal work based upon sex, the standards of the Equal Pay Act apply whether the suit alleges violation of Equal Pay Act or Title VII); Foster v. Arcata Associates, Inc., 772 F.2d 1453, 1465 (9th Cir.1985), cert. denied, 475 U.S. 1048 , 106 S.Ct. 1267 , 89 L.Ed.2d 576 (1986) (when Title VII claimant contends that she has been denied equal pay for substantially equal work Equal Pay Act standards apply).

Because the district court dismissed on summary judgment Miranda’s EPA claim, the issue of the relative standards to be applied in a Title VII case brought under an equal work theory need not be addressed.