# Opposition — Schoonover v. Kansas > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1190%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1976 - **Citation:** 424 U.S. 944 ## Text _ §upreme Court, U. S, tt FILED » No. 76-1010 MAR 11 i977 MICHAEL RODAK, JR., CLERK In the Supreme Court of the OcTOBER TERM, 1976 | ALLEGHENY COUNTY INSTITUTION District, d bia Joun J. KANE HOSPITAL, PETITIONER _f Ray MARSHALL. SECRETARY OF LABOR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION DANIEL M. FRIEDMAN, Acting Solicitor General, Department of Justice, Washington, D.C. 20530. ALFRED G. ALBERT, Acting Solicitor of Labor, CARIN ANN CLAUSS, Associate Solicitor, Lois G. WILLIAMS, Attorney, Department of Labor, Washington, D.C. 20210. INDEX Page a. sccsesenmenononoces I eo ... cssennsnsoooosensecess | i scnnssasecnesceses | Constitutional provisions and statute involved .............. 2 a ices swactedneueccnnsssooscccescoconeccosccoees 2 sh ss cadesnsactsvocssdnrescocccoosccooes 4 a ss ceswensnssonsnonece 10 SELENE la CITATIONS Cases: | California v. Taylor, 353 U.S. 553 .....ccccccccceecce cee e es 8 Corning Glass Works v. Brennan, 417 U.S. aaa sss ceeessnnegnnpenoes 4 Fitzpatrick v. Bitzer, 427 U.S. 445... 3,5 Fry v. United States, 421 U.S. $42 ............cccccceeeee es 8 Hodgson v. Behrens Drug Co., 475 F. 2d 1041, certiorari denied, 414 U.S. 822 ........... eee 5 Hodgson v. Brookhaven General Hospital, ali iciiccidlecnadtdsscecesecoovesecceses 5 Katzenbach v. McClung, 379 U.S. 294 ............6000005 7 Keller v. United States, 213 U.S. 138 ..............000000. 7 Marvland v. Wirtz, 392 U.S. 183 .........ccccccceeeee seen: 8 National League of Cities v. Userv, 426 EE ae 3; 6, 8,9 Page Cases Continued Parden v. Terminal R.R., 377 U.S. 184 ..........0000 8 United States v. California, 297 U.S. 175 ............... 8 Virginia, Ex parte, 100 U.S. 339 ooo.cceeceeeeeeees 6 Constitution, statutes, and regulation: United States Constitution: TOTTI Fcc citcailhicinitedadetlinstinnucintinminivessiinctanpaies 7 Commerce Clause ...............05 .0 6, 7, 8,9 PUNE FREIND ccdenecicesesencccpnsasssnnpentscsasen 5 Fourteenth Amendment .............. 2, 5, 6, 7, 8.9 Equal Pay Act of 1963, 77 Stat. 56, 29 U.S.C. BAG) .orecevecinaorceceosesersvevenesstioscssssconsovessoosnend passim BP ODL: BOP ktciciccndtinnsinstitnttnnabicisdtnnimnantibbuntiiatinain 6 29 C.F.R. 800.121 ............ Selisidoiecabsaasbiiipiblateiilemaakguadaaiepe 4 er In the Supreme Court of the Wnited States OCTOBER TERM, 1976 No. 76-1010 ALLEGHENY COUNTY INSTITUTION DISTRICT, d/b/a Joun J. KANE HOSPITAL, PETITIONER V. RAY MARSHALL, SECRETARY OF LABOR ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPLALS FOR THE THIRD CIRCUIT BRIEF FOR THE RESPONDENT IN OPPOSITION OPINIONS BELOW The opinion of the court of appeals (Pet. App. la- 15a) is reported at 544 F. 2d 148. The opinion of the district court (Pet. App. 16a-24a) is not reported. JURISDICTION The judgment of the court of appeals was entered on October 28, 1976. The petition for a writ of certiorari was filed on January 21, 1977. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether female beauticians and male barbers. both providing basic hair care for geriatric patients, perform work that is “equal” within the meaning of the Equal Pay Act. (1) 2 2. Whether the Equal Pay Act may constitutionally be applied to States and their subdivisions. x CONSTITUTIONAL PROVISIONS AND STATUTE INVOLVED |. The pertinent provisions of the Equal Pay Act of 1963, 77 Stat. 56, 29 U.S.C. 206(d), are set out at Pet. 5-6. 2. The Fourteenth Amendment provides in relevant part: SECTION 1. *** No State shall * * * deny to any person within its jurisdiction the equal protec- tion of the laws. * * * * * SECTION 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. STATEMENT The Secretary of Labor brought this action in the United States District Court for the Western District of Pennsylvania to enjoin petitioner from violating the Equal Pay Act by maintaining a wage differential between the male barbers and female beauticians on its staff. The district court found that both barbers and beau- ticians provided “basic hair care” for geriatric patients (Pet. App. 19a-20a). Both spent the majority of their time cutting ‘hair, which requires use of the same basic tools (id. at 20a-21a). They worked the same number of hours (id. at 19a, 20a). Both reported scalp diseases to the nurses, and both cleaned their own tools. All barbers and beauticians attended professional schools, where they received similar training and experience: all were licensed by the State of Pennsylvania. The beauticians, unlike the barbers, also gave permanents and hair sets, straightened and relaxed hair, and shaved 3 patients with electric razors; they occasionally shampooed hair and polished and filed nails (Pet. App. 2la-22a). The barbers, unlike the beauticians, occasionally taught hospi- tal aides how to shave patients (id. at 21a.) Notwithstanding these findings that barbers and beauti- cians perform substantially identical tasks, the district court dismissed the action. It stated that barbers and beauticians were “members of two distinct licensed pro- fessions, trained by different type schooling, and whose jobs require unequal skill, effort and responsibility” (Pet. App. 17a). The court of appeals reversed. It held that the district court’s findings of fact on “basic work hours, place of work, predominant activity, additional acitivites, pa- tient responsibilities, tools, and effort” (Pet. App. 7a) demonstrated that barbers and beauticians perform equal work within the meaning of the Act. The court of appeals concluded that the educational backgrounds and licensing requirements for barbers and beauticians were “virtually identical” (id. at 9a) and that, in such circumstances, the “mere fact that the two professions are separately licensed” was not significant (id. at | la). The court also held that the Equal Pay Act constitu- tionally may be applied to States and their subdivisions. It concluded, relying on Fitzpatrick v. Bitzer, 427 U.S. 445, that the Equal Pay Act is supported by Congress’ power under Section 5 of the Fourteenth Amendment to define and enforce the equal protection of the laws. Although the Equal Pay Act had been joined with the Fair Labor Standards Act, part of which this Court invalidated in National League of Cities v. Usery, 426 U.S. 833, the court of appeals held that the Equal Pay Act was severable and rested upon a firm consti- tutional footing. 4 ARGUMENT - The decision of the court of appeals is gorrect. There is no conflict among the circuits concerning the validity of the Equal Pay Act, and petitioner's re- maining argument involves only the application of set- tled principles to the facts of this case. Accordingly. there is no need for review by this Court. |. Petitioner contends that the court of appeals un- justifiably discarded the district court's findings of fact (Pet. 22). On the contrary, the court of appeals accepted all of the district court's findings of fact (Pet. App. 9a) and held that these findings demonstrated that the jobs of barber and beautician were substantially identical. Petitioner argues that the jobs were not identical be- cause state licensing procedures lead to separate licenses and because, under the licensing scheme, persons may not transfer from one job to another. But it is settled that jobs need not be interchangeable to be substantially equal; it is enough that they be closely related and re- quire substantially equal skill,- effort, and responsibility. Corning Glass Works v. Brennan, 417 U.S. 188, 203- 204 n. 24. Here, as the court of appeals observed, the district court's findings establish that the beauticians employed skill, effort, and responsibility “at least equal to that of the barbers” (Pet. App. 7a); to the extent there was any difference, the beauticians, who received the lower pay, employed the greater skill (id. at 10a). The Equal Pay Act therefore forbids the pay differential found to exist here.! ‘it makes no difference that Pennsylvania has separate licensing systems for barbers and beauticians. The decision whether jobs are equal is one of federal law, and differences of nomen- clature under state procedures do not matter. 29 C.F.R. 800.121: 5 2. Petitioner contends (Pet. 24-25) that the Equal Pay Act may not constitutionally be applied to States and their subdivisions. The argument is incorrect, and it has been rejected by the vast majority of courts that have passed upon it.’ a. The Equal Pay Act is an exercise of the power of Congress, under Section 5 of the Fourteenth Amendment, to enact appropriate legislation to enforce the Equal Protection Clause of Section | of that Amendment. This Court has held in Fitzpatrick v. Bitzer, 427 U.S. 445, that the Fourteenth Amendment worked a fundamental alteration of the allocation of power within our federal system. Fitzpatrick therefore sustained, against an Eleventh Amendment challenge, the power of Congress to provide for back pay as a remedy for unequal treatment on account of sex. The Equal Pay Act achieves the same objective— equal treatment without regard to sex—and is con- stitutional under the same grant of power to Congress. As Hodgson v. Behrens Drug Co., 475 F. 2d 1041. 1049-1050 n. 12 (C.A. 5). certiorari denied. 414 U.S. 822: Hodgson vy. Brook- haven General Hospital, 436 F. 2d 719, 724 (C.A. 5). Nor does it make a difference that, under Pennsylvania law, men may be beauticians and women may be barbers. The fact remains that petitioner employs only female beauticians and male barbers. and that it pays barbers $165 per month more than beauticians. See Pet. App. 10a-1 la, 23a. *District courts in 25 cases have reached the same conclusion as the court of appeals in the present case. Two district courts have agreed with petitioners. A list of the cases reaching this issue is set out for the convenience of the Court as an appendix to this brief. No other court of appeals has yet decided the issue, but cases presenting it are pending in four circuits. Christopher v. lowa, C.A. 8. No. 76-1632: Marshall v. Charleston County School District, C.A. 4. No. 76-2340: Uservy v. Owenshoro- Daviess County Hospital, C.A. 6 No. 77-3069: Userv v. City of Sheboygan, C.A. 7. Misc. No. 76-8122. 6 the Court stated in Ex parte Virginia, 100 U.S. 339, 347-348, “the Constitution now expressly gives authority for congressional interference and compulsion in the cases embraced within the Fourteenth Amendment. It is but a limited authority, true, extending only to a single class of cases; but within its limits it is complete.” Petitioner argues that the Equal Pay Act must fall with the Fair Labor Standards Act, part of which this Court held unconstitutional in National League of Cities v. Usery, 426 U.S. 833. It is true that the Equal Pay Act was placed within the Fair Labor Standards Act, but that does not end the matter. The Equal Pay Act is a separately considered statute enacted in 1963. It was “enacted at a different time, and aimed at a separate problem—discrimination on account of sex in the payment of wages” (Pet. App. 13a). The Fair Labor Standards Act contains a broad severability clause (29 U.S.C. 219), and so there is no reason why the Equal Pay Act should be affected by National League, unless the rationale of National League applies here as well. We already have discussed the most important differ- ence between this case and National League; although the minimum wage and overtime provisions of the Fair Labor Standards Act were enacted under the authority of the Commerce Clause alone, the sex discrimination provisions at issue here draw support from Section 5 of the Fourteenth Amendment as well as ‘from the Com- merce Clause. Petitioner responds that the Equal Pay Act must be assessed as if it drew its authority from the Commerce Clause alone, because Congress explicitly invoked its Commerce Clause power when enacting the statute. The court of appeals properly rejected the argument that Congress must cite the correct source of power when enacting a statute; the constitutionality of Acts of > Congress depends upon the substance of their provisions, and not whether the committee reports or the preamble contain particular invocations of authority. The pro- cedures for the enactment of legislation specified by Article | of the Constitution do not require Congress to utilize either published legislative histcry or a pre- amble—let alone to state an accurate constitutional theory in such documents. Nothing in Article I, or elsewhere in the Constitution, authorizes a court to strike down other- wise valid legislation merely because Congress mis- conceived the source of its authority to enact it. “In exercising the power of judicial review * * *.we are concerned with the actual powers of the national govern- ment” (Pet. App. 14a; emphasis added). The proper question is “whether there is any authority conferred upon Congress by which this particular portion of the statute can be sustained.” Keller v. United States, 213 U.S. 138, 147. Indeed, Title VII of the Civil Rights Act of 1964, which this Court upheld in Fitzpatrick as an exercise of authority under Section 5 of the Fourteenth Amendment, also purported to be only an exercise of authority under the Commerce Clause. At the time Title VII was enacted in 1964 it applied only to private persons, just as the Equal Pay Act applied only to private persons when it was enacted in 1963. There therefore would have been no basis for a con- gressional assertion of power under the Fourteenth Amendment, which applies only to state action. Similarly, when Title VII was made applicable to the States in 1972, and when the Equal Pay Act was made applicable to peti- tioners in 1966 (and to other governmental entities in 1974), there was no reason for Congress to rely heavily upon its powers under the Fourteenth Amendment. The Civil Rights Act of 1964 had been sustained as a valid Commerce Clause enactment (Katzenbach v. McClung, 379 U.S. 294), and the 1966 extension of the Fair Labor Standards Act to 8 governmental entities like petitioner also was sustained as a valid Commerce Clause enactment (Marvland v. Wirtz, 392 U.S. 183). The fact that National League now has held that reliance upon the Commerce Clause was misplaced does not mean, however, that the Equal Pay Act may not be upheld under the Fourteenth Amendment. Under our con- stitutional system, a court is not authorized to invalidate a statute, otherwise within the substantive powers of Congress, just to see whether Congress would re-enact the statute with a different citation of constitutional authority. b. Moreover, the Equal Pay Act is a valid exercise of power under the Commerce Clause, without regard to its validity under the Fourteenth Amendment. National League did not hold that Congress lacks any power under the Commerce Clause to regulate the States; the Court specifically stated (426 U.S. at 852-855) that it was not disturbing the holdings of Fry v. United States, 421 U.S. 542, Parden v. Terminal R. R., 377 U.S. 184, California vy. Taylor, 353 U.S. 553, and United States v. California, 297 U.S. 175, all of which sustained legislation, enacted under the commerce power, regulating States in their role as employers. The Court concluded in National League that the Com- merce Clause does not establish sufficient authority for the federal government to interfere in certain attributes of sovereignty that the States and their subdivisions exercise in carrying out traditional functions of government. But even if the establishment of geriatric hospitals like petitioner can be portrayed as a traditional function of the States,’ the Equal Pay Act does not interfere in any significant way with the manner in which States are permitted to carry out that function. ‘But see Parden, supra. eee errata cee e eee anenemme. Swen ee 9 The minimum wage and overtime provisions of the Fair Labor Standards Act set wage and hour standards that could have required the States to rearrange the way jobs were performed and to pay their employees higher wages than state statutes provided. The Equal Pay Act, by contrast, does not compel any State to pay one wage rather than another. States retain full control over the wages paid to their employees; they retain full control over the number of employees to hire for each job, and what hours they shall work. The Equal Pay Act provides only that, once the State in its sole discretion has set 2 wage rate for employees of one sex, it must pay the same rate to employees of the other sex doing substantially equal work. This does not impinge on state autonomy or threaten to undermine the performance by the States of any of their essential and customary functions. Therefore, under the standards thi “ourt applied in National League, the Equal Pay Act would be a permissible exercise of the commerce power even if it stood on that power alone. 4Indeed. States could not reasonably claim that they have an interest in paying different wages to men and women who do the same work, because such sex discrimination would violate the Equal Protection Clause of the Fourteenth Amendment. It is hard to see how a State could argue that violations of the Equal Protection Clause are an “essential attribute” of its sovereignty. 10 CONCLUSION ' The petition for a writ of certiorari should be denied. Respectfully submitted. DANIEL M. FRIEDMAN, Acting Solicitor General. ALFRED G. ALBERT, Acting Solicitor of Labor, CARIN ANN CLAUSS, Associate Solicitor, Lois G. WILLIAMS, Attorney, Department of Labor. MARCH 1977. DOJ-1977-03 APPENDIX CASES DECIDED AFTER NATIONAL LEAGUE OF CITIES v. USERY, 426 U.S. 833, PASSING UPON THE CON- STITUTIONALITY OF THE EQUAL PAY ACT AND THE AGE DISCRIMINATION IN EMPLOYMENT ACT AS APPLIED TO STATES AND THEIR SUBDIVI- SIONS Equal Pay Act of 1963, 29 U.S.C. 206(d) a. Cases upholding the Act Christensen v. lowa, 417 F. Supp. 423 (N. D. lowa). Usery v. Charleston County School District, D. 'S.C., No. 76-248, decided August 24, 1976. Usery v. Sioux City Community School Dis- trict, N.D. lowa, No. C-76-4024, decided August 20, 1976. Usery v. Fort Madison Community School District, S.D. lowa, No. C-75-62-1, decided September |, 1976. Usery v. Bettendorf Community School Dis- trict, 423 F. Supp. 637 (S.D. lowa). Usery v. Berkeley Unified School District, N.D. Cal., No. C-75-1558 SAW, decided September 27, 1976. Usery v. Kent State University, N.D. Ohio, No. C75-550, decided October 6, 1976. la 2a Usery v. Washoe County School District, D. Nev., No. R-75-216 BRT, decided Octeber 13, 1976. Usery v. University of Nevada, Reno, D. Nev., No. R-75-62 BRT, decided October 13, 1976. Usery v. Dallas Independent School District, 421 F. Supp. 111 (N.D. Tex.). Usery v. University of Texas at El Paso, W.D. Tex., No. EP-75-CA-221, decided Octo- ber 14, 1976. Usery v. Memphis State University, W.D. Tenn., No. C-75-54, decided October 29, 1976. Usery v. Baltimore County School District, D. Md., No. K-76-762, decided Novemtber 16, 1976. Usery v. City of Brockton, D. Mass., No. 76-2265-M, decided November 9, 1976. Usery v. Morrissey, D. Mass., No. CA 74- 2311-G, decided November 15, 1976. Usery v. A&M Consolidated Independent School District, S.D. Tex., No. 74-H-1532, decided November 30, 1976. Usery v. Tennessee Technological University, M.D. Tenn., No. 75-7-NE-CV, decided De- cember 14, 1976. Usery v. Austin Peay State University, M.D. Tenn., No. 75-42-NA-CV, decided De- cember 14. 1976. 3a Usery v. Kenosha Unified School District Number One, E.D. Wisc., No. 73-C-399, decided December 13, 1976. Usery v. City of Sheboygan, E.D. Wisc.. No. 76-C-209, decided December 13, 1976. Brown v. County of Santa Barbara, C.D. Cal., Nos. 75-3492-HP and 75-3978-HP., decided January 14, 1977. National League of Cities v. Marshall, D. D.C. (three-judge court), No. 74-1812, de- cided January 31, 1977. Usery v. Eastern Kentucky University, E.D. Ky., No. C.A. 76-15, decided January 21, 1977. Usery v. Council Bluff Community School Dis- trict, S.D. lowa, No. 76-26-W, decided January 27, 1977 Usery v. Oregon, D. Ore., No. 74-629. decided February 12. 1977. b. Cases holding the Act invalid Howard v. Ward County, 418 F. Supp. 494 (D. N.D) (Title VII case denying Equal Pay Act jurisdiction but applying Equal Pay Act standards to afford relief to em- ployee of county). Usery v. Owensboro-Daviess County Hos- pital, 423 F. Supp. 843 (W.D. Ky). 4a Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 ef seq. Cases upholding the Act Usery v. Board of Education of Salt Lake City, 421 F. Supp. 718 (D. Utah). Springer v. City of Los Angeles, C.D. Cal., No. CV 76-2449-FW, motion to dismiss denied November 24, 1976. Aaron v. Davis, W.D. Ark., No. LR-76-C-16, motion to reconsider judgment for plaintiff denied December 9, 1976. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1190%3A2. Public record. Not legal advice.