Petition — County of Washington v. Gunther
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8 0 o 4 29 Supreme Court, U.S,
FILED
No. A-63 SEP 2 1980
MICHAEL RODAK, JR. CLERK
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
THE COUNTY OF WASHINGTON AND SHERIFF
WARREN BARNES, IN HIS CAPACITY AS
SHERIFF OF WASHINGTON COUNTY,
Petitioners,
Ve
ALBERTA GUNTHER, VELENE M. VALLANCE,
MARION E. VANDER ZANDEN AND YVONNE
M. HATTON,
Respondents.
a
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
LAWRENCE R. DERR
WEISS, DERR & DESCAMP
Norton House
33 N.W. First Avenue
Portland, Oregon 97209
(503) 227-3331
Counsel for Petitioners
September 2, 1980
QUESTION PRESENTED FOR REVIEW
Whether sex-based wage rate discri-
mination claims are subject to a dif-
ferent standard of proof, when such
claims are asserted under Title VII of
the Civil Rights Act of 1964, as amend-
ed, 42 U.S.C. §§2000e-1 to 2000e-17
(1976), than the equal pay for equal
work standard applicable to claims pre-
sented under the Equal Pay Act, 29
U.S.C. §206(d)?
PARTIES TO THE PROCEEDING BELOW
The parties to the proceeding in the
United States Court of Appeals for the
Ninth Circuit are listed in the caption
to this petition. The Complaint filed
in the district court named Captain Stan
Freese and Sergeant Clarence Ramseth as
defendants, in their capacities as Wash-
ington County Police Officers, but they
were dismissed as defendants from the
Suit by stipulation in the district
court proceeding.
7 |]
- 446
TABLE OF CONTENTS
QUESTION PRESENTED FOR REVIEW
PARTIES TO THE PROCEEDING BELOW
TABLE OF CONTENTS .. .
TABLE OF AUTHORITIES . .
OPINIONS BELOW.....
JURISDICTION ......
STATUTES INVOLVED .. .
STATEMENT OF THE CASE .
REASONS FOR GRANTING THE
WRIT
I. The Decision Below is in
Direct Conflict With the
Decisions of Five Courts of
Appeals on the Same Matter...
II. The Court of Appeals
Decided the Question in a
Way in Conflict With Applicable
Decisions of This Court ... .
III. The Court of Appeals
Incorrectly Decided the Question
Posed for Review ... «+. «ee e«
IV. The Court of Appeals has
Decided an Important Question
of Federal Law Which Should Be
Settled by This Court .....
Page
11
16
23
34
- £11 <-
CONCLUS ION 7. * . . . o . . . . . . o 38
APPENDIX
Supplemental Opinion of the
Court of Appeals ...+«e««e-. la
Opinion of the Court of
pt aa, yeaa ae ae a a a eee
Opinion of the District Court . 57a
Order of the Court of Appeals
Denying Petition for
REET tO bis ee ek oe ee ee ae
Equal Pay Act, 206(6)(1) .... 79a
Title VII, 703(a), (Rh) . «s« + « Ga
TABLE OF AUTHORITIES
CASES
Ammons v. Zia Co., 448 F.2d 117
FLOCR Cals Saree « & + « av Be: Bay 29
Brennan v. Prince William Hospital
Corp., 503 F.2d 282, 285 (4th
Cir. 1974), cert. denied, 420
U.6. 97a (iste? <0 sacs Fe ew eS
- iv-.
Cabell v. Markham, 148 F.2d 737,
739 (2d Cir. 1945), aff'd, 326
U.S. 404 (1945) ce Mees ee Os Se
Calage v. University of Tennessee,
400 F. Supp. 32, 37-39,
(E.D.Tenn. 1975), aff'd, 544
¥.24. 297 (6th Cic. 1976) . « « Lhe
Chrapliwy v. Uniroyal, Inc., 458 F.
Supp. 252 (N.D.Ind. 1977) .« « « «
Cullari v. East-West Gateway Coor-
dinating Council, 457 F. Supp.
335, 341 (E.D.Mo. 1978) . 2 ° 7
DiSalvo v. Chamber of Commerce, 568
F.2d 593 (8th Cir. 1978) . 8, ll,
EEOC v. Colby College, 439 F. Supp.
631 (D.Me. 1977), vacated and
remanded on other grounds, 589
P.26 1139 (lst Cic. 1979) . « «6
Federal Energy Administration v.
Algonguin SNG, Inc., 426 U.S.
548, 564 (1976) . . . . . . . + -
24
12
12
12
14
12
32
_ Galvan v. Press, 347 U.S. 522
(1954) * . ° ° ° ° . * . . . . . * 30
General Electric Co. v. Gilbert,
429 U.S. 125, 144
CeeTeL 6. ee Wis 6 « ) Brae ee
Haynes v. United States, 390 U.S.
85 (1168) * o ° ° 7 +. 7: . o . 7 7 30
International Brotherhood of Team-
sters v. United States, 431
woe Bee Seere «<a as < st cs se
International Union of Electrical,
Radio and Machine Workers v.
Westinghouse Electric Corp.,
F.2d , 23 F.E.P. Cases
588 (3d Cir. August 1, 1980) ... 13
IUE v. Westinghouse Electric Corp.,
17 F.E.P. Cases 16 (N.D.W.Va.
1977) 7 . . 7 7 . . . . . . . . . 12
Johnson v. University of Bridge-
port, 20 F.E.P. Cases 1766,
Sarre (e.Ceem 2979) « « « te ew t
= ol 6
Kohne v. IMCO Container Co., 20
EPD 11,858 at 11,875-76
eos ees. Seton. He eos 6. *& s « 8
Laffey v. Northwest Airlines,
Inc., 567 F.2d 429 (D.C. Cir.
1976), cert. denied, 434 U.S.
LOGS CA0rer oo: ss « « »:: B tah,
Lemons v. City and County of
Denver, 620 F.2d 228 (10th
Cir. April 21, 1980), petition
for cert. filed, 49 U.S.L.W.
3031 (U.S. July 18, 1980) (No.
80-82) - + + . . ° . . 8, li, 14,
Lynch v. Overholser, 369 U.S. 705,
te ee Be ae ae oe Ge ee ee ee ee
Manhart v. City of Los Angeles
Dept. of Power & Water, 435
U.S. 702 (1978) 7 . . 7 . . . 17,
Orr v. MacNeill & Son, 511 F.2d 166
(Sth Cir. 1975), cert. denied,
423 U.S. 865 (1975) oe ate? Qe aes
14
16
25
18
- vii -
Sioux Tribe v. United States, 316
U.S. 317, 329-330 (1942) > * e
Stastny v. Southern Bell Telephone
and Telegraph Co., F,2d
(4th Cir. July 28, 1980)
(cpinion printed in BNA Daily
Labor Report dated August 13,
eee me Pad 6 a ee cs Be 2;
Train v. Colorado Pub. Int.
Research Group, Inc., 426 U.S. 1
(1976) ° + ° . . > 9, 18, 19, Bae
United States v. City of Milwaukee,
441 F. Supp. 1371 (E.D.Wis.
1977) . . = ° . . . . . . 7. . . 7
United States v. United Mine
Workers, 330 U.S. 258, 279-80
(1947) 7 . . _ 7 Oo . . os - . . . .
United States v. United Continental
Tuna Corp., 425 U.S. 164
(1976) . o . ° . . ° : 9, 18, 19,
- viii -
STATUTES
28 U.S.C. §1254(1) . «© « es c «
29 U.S.C. §206(d) (1)
33 U.S.C. §1251 et seq. ..
42 U.S.C. §2000e-2(a) ....
42 U.S.C. §2000e-2(h)
cio © eee Op Se Oly. aes
42 U.S.C. §2011 et seq. . « 4
FEDERAL REGULATIONS
29 C.F.R. §800.120 (1965).
29 C.FP.R. §1604.7 . « « « « «
29 C.F.R. §1604.8 ....
CONGRESSIONAL RECORD
108 Cong. Rec. 14767-68 (1962)
17,
31,
32
19
28
33
19
32
33
21
109 Cong.
110 Cong.
110 Cong.
110 Cong.
111 Cong.
Rec.
Rec.
Rec.
Rec.
Rec.
MISCELLANEOUS
9196-9198, 9209 .
7217 (1964) .. .«
13647 (1964) ..
15896 (1964) ..
13359-13360 (1965)
Black's Law Dictionary (4th ed.
1968),
nt - s » © «
BNA Daily Labor Report dated
21,
22
26
27
31
29
24
October 30, 1979, at A-2, A-3..
BNA Daily Labor Report dated April
mm Ge PRE « 6 6 6 0 8 6 8 le
BNA Daily Labor Report dated April
29, 1980 at A-5 to A-l2 .....
BNA Daily Labor Report dated April
30, 1980 at A-8 to A-15 ...
"The EEOC's Bold Foray Into Job
Evaluation," Fortune, September
Ria RET es. Seeon ss %. He ee Bie
Lindsay, Equal Pay for Comparable
Work: An Economic Analysis of
a New Anti-discrimination
Doctrine (1980) ie Pe ae ee ae ee
38
No. A-63
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
THE COUNTY OF WASHINGTON AND SHERIFF
WARREN BARNES, IN HIS CAPACITY AS
SHERIFF OF WASHINGTON COUNTY,
Petitioners,
Vv.
ALBERTA GUNTHER, VELENE M. VALLANCE,
MARION E. VANDER ZANDEN AND YVONNE
M. HATTON,
Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT
Petitioners pray for a Writ of Cer-
tiorari to review the judgment of the
United States Court of Appeals for the
Ninth Circuit in this case.
— 2
OPINIONS BELOW
The opinion of the court of appeals
is reported at 602 F.2d 882 and appears
in the Appendix hereto (20a-56a). The
court of appeals supplemental opinion on
denial of rehearing (la-19a) is not yet
officially reported, but is unofficially
reported at 22 F.E.P. Cases 1650. The
court of appeals' judgment reverses in
pertinent part the decision of the Unit-
ed States District Court for the Dis-
trict of Oregon (57a-76a) which is not
yet officially reported, but is unoffic-
ially reported at 20 F.E.P. Cases 788.
JURISDICTION
The judgment of the court of appeals
was entered on August 16, 1979. The
court of appeals' order denying the pe-
tition for rehearing and Suggestion for
rehearing in banc was filed on May l,
1980. On July 21, 1980, Mr. Justice
Rehnquist extended the time for filirg a
petition for a writ of certiorari to
September 2, 1980. The jurisdiction of
this Court is invoked under 28 U.S.C.
§1254(1).
STATUTES INVOLVED
The statutes involved are: Section
6(d)(1) of the Fair Labor Standards Act
of 1938, as added by the Equal Pay Act
of 1963, 77 ~=Stat. 56, 29 U.8.C.
§206(d)(1); Section 703(a)(1) of Title
VII of the Civil Rights Act of 1964
("Title VII"), 78 Stat. 255, 42 U.S.C.
§2000e-2(a) (1) and Section 703(h) of .
Title VII, 78 Stat. 255, 42 U.8.C.
§2000e-2 (h) (the second sentence of
which is known as the "Bennett Amend-
ment"). These statutes are set forth in
the appendix hereto (79a-8la).
STATEMENT OF THE CASE
The respondents are females who
were employed as Matrons to guard female
Prisoners in the Washington County,
Oregon jail. Males were employed as
"Corrections Officers" to guard male
prisoners at the jail.! The respon-
1 he district court found that (cont.)
she
dents alleged in the Complaint that the
County of Washington (the "County") had
discriminated against them with respect
to wages in violation of Title VII be-
cause the Matron job was assertedly sub-
stantially equal to the higher paid Cor-
rections Officer iob performed by the
men jailers.2 At trial in the dis-
trict court proceeding the respondents
contended that even if the Matron job
was not equal to the Corrections Officer
job, the County violated Title VII
because the differences in pay were
greater than the differences in the dif-
ficulty of the work. The County took
(cont.) Corrections Officer job was
available to females but that none of
the matrons had applied for the job.
(68a).
2 fhe district court held that it had
jurisdiction of the suit under Title VII
(58a). In addition to their alleged
wage rate discrimination claim, the re-
spondents also claimed that the County
in violation of Title VII had terminated
and refused to rehire them because they
had sought equal pay. The district
court found in favor of the County with
respect to those claims (68a) and the
court of appeals affirmed (28a). This
petition refers only to the respondents’
alleged wage rate discrimination claim.
» & e«
the position that wages had been estab-
lished through collective bargaining,
the Matron job and the Corrections Of-
ficer job were not substantially equal
and relief on the wage rate allegations
was barred in the absence ot proof that
women had been paid less for performing
equal work in relation to the- men
(6la,67a).
After trial, the district court held
by virtue of 42 U.S.C. §2000e-2(h) (the
Bennett Amendment, set forth in the
appendix at 80a) that "the sex discrim-
ination prohibitions of Title VII must
be construed in the same manner as the
Equal Pay Act" (79a). Accordingly, the
district court applied to the _ respon-
dents' alleged wage rate discrimination
claim the Equal Pay Act's "equal pay for
equal work" standard, 29 U.S.C.
§206(d). The district court found that
the Matron job was not substantially
equal to the Corrections Officer job
Since the matrons had comparatively few
prisoners to guard and actually spent a
considerable portion of their work time
performing clerical tasks (68a). Thus,
the district court denied respondents’
Claim that the jobs at issue should have
—
been paid equally and also dismissed
respondents' claim that the Matron job
should have been accorded a higher pay
rate even if it was not substantially
equal to a job performed by men (70a) .3
The court of appeals held that the
district court was correct in finding
that the comparison jobs were not sub-
Stantially equal (28a). However, the
court of appeals decided that even
though respondents could not satisfy the
"equal work" standard they should be
permitted to show that they were enti-
tled to higher pay under some other,
unspecified standards. Accordingly, the
court of appeals reversed the dismissal
of respondents' alleged wage rate claim
and ordered the district court on remand
to consider respondents' allegation
"that a portion of the discrepancy be-
tween their salaries and those of the
3 The district court explained:
"If the jobs are substantially
dissimilar that is the end of the
inquiry. See 29 C.F.R. §800.120
(1965). Under these circumstances,
the overpayment of corrections of-
ficers or the underpayment of ma-
trons are not matters which I can
explore or correct." (70a)
«J «
male guards could be be ascribed only to
sex discrimination." (39a). In the
Supplemental Opinion On Denial Of Re-
hearing the court of appeals indicated
that if female employees could show a
violation of the equal pay for equal
work standard they could prevail under
Title VII. but if they couldn't show
equal work then they still might obtain
recovery under other unspecified
theories. (18a).
REASONS FOR GRANTING THE WRIT
The judgment of the court of appeals
below is in direct conflict with the
decisions of the Fourth, Fifth, Eighth,
Tenth and District of Columbia Circuits
holding that sex-based wage discrimina-
tion claims that do not meet the Equal
Pay Act's equal pay for equal work stan-
dard are not subject to relief under
Title VII because (i) the Equal Pay Act
and Title VII are to be construed in
pari materia in the area of alleged
sex-based wage discrimination and (ii)
Congress intended the Equal Pay Act's
equal work standard to apply to claims
« § -
of sex-based wage rate discrimination
filed under Title VII as reflected in
the Bennett Amendment to Title VII, 42
U.S.C. §2000e-2(h). Lemons v. City and
County of Denver, 620 F.2d 228 (10th
Cir. April 21, 1980), petition for cert.
filed, 49 U.S.L.W. 3031 (U.S. July 18,
1980) (No. 80-82); Ammons v. Zia Co.,
448 F.2d 117 (10th Cir. 1971); Stastny
v. Southern Bell Telephone and Telegraph
Co., F.2d (4th Cir. July 28,
1980) (opinion printed in BNA Daily
Labor Report dated August 13, 1980 at
D-1); Orr v. MacNeill & Son, 51l F.2d
166 (Sth Cir. 1975), cert. denied, 423
U.S. 865 (1975); DiSalvo v. Chamber of
Commerce, 568 F.2d 593 (8th Cir. 1978);
Laffey v. Northwest Airlines, Inc., 567
F.2d 429 (D.C. Cir. 1976), cert. denied,
434 U.S. 1086 (1978).
The judgment below is also in
conflict with this Court's decision in
General Electric Co. v. Gilbert, 429
U.S. 125, 144 (1976), holding that be-
cause of the Bennett Amendment the Fed-
eral Wage and Hour Administrator's
interpretations of the Equal Pay Act's
core equal pay for equal work standard
are applicable for determining whether
» @ =
compensation practices are lawful under
Title VII. Furthermore, the court below
decided the case in a way in conflict
with this Court's decisions regarding in
Pari materia statutory construction in
Train v. Colorado Pub. Int. Research
Group, Inc., 426 U.S. 1 (1976) and Uni-
ted States v. United Continental Tuna
Corp., 425 U.S. 164 (1976), since the
court of appeals' statutory construction
of the Bennett Amendment effectively
repeals the Congressional judgment
reached in the Equal Pay Act without any
Congressional ~*intent supporting that
result.
The court of appeals' judgment
is incorrect as shown by the text of the
Bennett Amendment, the legislative in-
tent underlying the Equal Pay Act and
Title VII, principles of in pari materia
Statutory construction, the contemporan-
eous interpretation of the Bennett
Amendment issued by the Equal Employment
Opportunity Commission, and the well
reascned decisions of this Court, five
court of appeals and numerous district
courts.
Finally, the court of appeals
has decided an extremely important
= 10 -
question of federal law which has not
been, but should be, directly settled by
this Court. If Title VII wage rate dis-
crimination claims do not have to meet
the Equal Pay Act's equal work standard,
the federal courts will be overwhelmed
by litigation having enormous financial
consequences and calling for massive
re-evaluation of private and public em-
ployers' wage structures. For pay pur-
poses, the nurse will seek to be conm-
pared to the doctor, the school teacher
to the school principal, the hand assem-
bler to the lathe operator, and so forth
in endless comparisons of different
jobs. Moreover, once the courts go be-
yond the equal work standard, the ques-
tion will no longer be confined to whe-
ther jobs should be paid the same, but
will involve, as in this case, how much
more a lower-paying job should be paid
in relationship to a higher-paying, dif-
ferent job. The federal courts have no
experience or expertise in such job
evaluation and the whole process would
be contrary to Congressional intent to
limit the courts' involvement in the
wage area to claims concerning equal
work.
es : a
I. THE DECISION BELOW IS IN DIRECT
CONFLICT WITH THE DECISIONS
OF FIVE COURTS OF APPEALS
ON THE SAME MATTER
The Fourth, Fifth, Eighth, Tenth and
District of Columbia Circuits have held,
in direct conflict with the Ninth
Circuit's decision in this case, that a
Title VII plaintiff does have the burden
of proving the performance of equal work
for unequal pay in order to establish a
Prima facie case of sex-based wage
discrimination. Stastny v. Southern
Bell, supra, F.2d at ; oer ¥,
MacNeil & Son, supra, 51ll F.2d at 171;
DiSalvo v. Chamber of Commerce, supra,
568 F.2d at 596-97; Lemons v. City and
County of Denver, supra, 620 F.2d at
229-30; Ammons _v. Zia Co., supra, 448
F.2d at 120; Laffey Vv. Northwest
Airlines, supra, 567 F.2d at 446.4
The decisions in Lemons, Ammons,
DiSalvo, Laffey, Orr and Southern Bell
4 Additionally, the Sixth Circuit has
affirmed a district court decision in
accord with the above decisions in
Lemons, Ammons, DiSalvo, Laffey, Orr and
Southern Bell. See, Calage v. Universi-
ty of Tennessee, 400 F. Supp. 32, 37-39,
(E.D. Tenn. 1975), aff'd, 544 F.2d 297
(6th Cir. 1976).
w i? =
all conclude that Congress intended by
virtue of the Bennett Amendment to in-
corporate the Equal Pay Act's equal work
standard into Title VII as a limitation
on sex-based wage discrimination
claims.°
The court of appeals in this
case reasoned that two interpretations
of the Bennett Amendment were "“plausi-
ble": (1) that the Bennett Amendment
5 Numerous district courts, including
district courts in the First, Second,
Fourth, Sixth and Seventh Circuits, have
also held that alleged sex-based wage
discrimination claims which do not meet
the equal pay for equal work standard
are barred under Title VII. E.g., EEOC
v. Colby College, 439 F. Supp. 631
(D.Me. 1977), vacated and remanded on
other grounds, 589 F.2d 1139 (ist Cir.
1979), Johnson v. University of Bridge-
ort, 20 F.E.P. Cases WL 1770 °
Conn. 1979) ; IUE iv. Westinghouse
Electric Corp., L7 FeBele Cases 16
(N.D.W.Va. 13y7) ; Kohne v. IMCO Contain-
er Co., 20 EPD 11,858 at I1,875-76
(W.D.Va. 1979); Calage, supra, 400 Supp.
at 37-39; Chrapliwy v. Uniroyal, Inc.
458 F. Supp. 252 (N.D.Ind. 1977); United
States v. City of Milwaukee, 441 F.
Supp. 1371 (E.D. Wis. 1977); Cullari v.
East-West Gateway Coordinating Council,
457 F. Supp. 335, 341 (E.D.Mo. 1978).
These district court decisions also con-
flict with the decision of the Ninth
Circuit herein.
» 13 «
incorporated into Title VII all of 29
U.S.C.§206(d), including the Equal Pay
Act's equal work standard; or (2) that
the Bennett Amendment only incorporated
into Title VII that portion of 29 U.S.C.
§206(d) referring to the Equal Pay Act's
affirmative defenses. (33a) The court
of appeals herein held that the latter
interpretation of the Bennett Amendment
was "more persuasive" and determined
that Title VII plaintiffs alleging sex-
based wage discrimination claims are not
limited to the equal work standard ap-
plicable under the Equal Pay Act. (33a).
Only the Third Circuit Court of Ap-
peals has interpreted the Bennett Amend-
ment in the same fashion as the Ninth
Circuit. See, International Union of
Electrical, Radio and Machine Workers v.
Westinghouse Electric Corp.,
F.2d , 23 F.E.P. Cases 588 (3d Cir.
August 1, 1980). Judge Van Dusen's dis-
sent to the Westinghouse majority opin-
ion emphasizes the significance of the
conflict between the Third and Ninth
Circuits on the one hand and the Fourth,
Fifth, Eighth, Tenth and District of
Columbia Circuits on the other by demon-
strating that the latter interpretation
e 14 «
of the Bennett Amendment permits claims
based upon subjective evaluation of dis-
similar jobs.
This Court should grant the writ of
certiorari to resolve the conflict in
the law created by the decision be-
low.® It is doubtful that the con-
6 In its Supplemental Opinion on Deni-
al of Rehearing the court of appeals in
the present case made no attempt to dis-
tinguish its decision from the Tenth
Circuit's decision in Lemons, supra, the
Eighth Circuit's decision in DiSalvo,
| Supra. or the District of Columbia Cir-
cuit's decision in Laffey, supra. The
court of appeals did attempt to disting-
uish the Tenth Circit's decision in Am-
mons, supra, and the Fifth Circuit's
decision in Orr, supra, but the attempt-
ed distinction is not persuasive. The
Ninth Circuit reasoned that the alleged
Claims in Ammons and Orr were "equal
pay-type claims" requiring an analysis
under Equal Pay Act standards,
(l2a-14a). However, the Ninth Circuit
failed to acknowledge the fact that the
claims in both Ammons and Orr contained
elements of "intentional" discrimina-
tion. Thus, the court of appeals’
assumption that because the Tenth and
Fifth Circuits applied the equal work
standard, the claims must have been
equal pay-type claims does not withstand
scrutiny. The wage claims were rejected
in Ammons and Orr because plaintiffs
were not assserting, and could not as-
sert, violations of the equal work stan-
dard. Ammons, supra, at 119; (cont.)
= 15 «
flict will be resolved absent review by
this Court. There is no indication that
the courts of appeals will adopt a con-
Sistent interpretation of the Bennett
Amendment. The Tenth Circuit's Lemons
decision and the Fourth Circuit's South-
ern Bell decision, both in conflict with
‘the instant decision, were issued after
the Ninth Circuit reached its decision
herein. 7 But then the Third Circuit
issued its decision in the Westinghouse
case which rejected the Tenth Circuit's
(cont.) Orr, supra, at 170-71. The
Ninth Circuit also reasoned that certain
of the conflicting district court decis-
ions were "inconsistent" since the
courts had applied the Equal Pay Act's
equal work standard to Title VII wage
claims but had not applied exemptions
found in other statutory provisions of
the Fair Labor Standards Act (which con-
tains the Equal Pay Act). (14a-1l6a).
However, the exemptions of the Fair
Labor Standards Act are not contained in
29 U.S.C. §206(d) and, unlike §206(d),
are not cited in the Bennett Amendment.
This explains why the courts have ap-
plied the substantive equal work stan-
dard in §206(d) to Title VII wage claims
but not the procedural provisions con-
tained in other sections of the Fair
Labor Standards Act.
7 Although the Lemons’ decision was
issued April 21, 1980, and the decision
denying rehearing herein was (cont.)
= 16 =
approach. 23 F.E.P. Cases at 598.
Moreover, in this case a petition for
rehearing and suggestion for rehearing
in bane was denied by the Ninth Circuit,
clearly indicating that the Ninth Cir-
cuit has no intention of reappraising
its position and conforming to the view
of the conflicting circuit court and
district court decisions. Confusion
over the proper standard to be applied
to Title VII sex-based wage discrimina-
tion claims will spread unless _ this
Court settles the question posed herein.
II. THE COURT OF APPEALS DECIi THE
QUESTION IN A WAY IN CONFL.-T
WITH APPLICABLE DECISIONS
THIS COURT
The court of appeals' decision that
(cont.) issued May 1, 1980, it is
robable that the Ninth Circuit rendered
ts decision prior to Lemons, supra.
The plaintiffs in Lemons have cited in
this Court a petition for writ of
certiorari which notes that the Tenth
Circuit's Lemons decision is in direct
conflict with the decision of the Ninth
Circuit in this case. See Petition for
Writ of Certiorari filed in Lemons vv.
City and County of Denver, No. 80-82, at
» 173 «
the Bennett Amendment only incorporated
the Equal Pay Act's affirmative defenses
into Title VII- conflicts with this
Court's decision in General Electric Co.
v. Gilbert, supra. The plaintiffs in
General Electric alleged that the exclu-
Sion of pregnancy and maternity from a
disability benefit plan discriminated on
the basis of sex in violation of Title
VII and relied, inter alia, upon a 1972
EEOC guideline on the subject. But this
Court found that because of the Bennett
Amendment "interpretations of §6(d) of
the Equal Pay Act are applicable to
Title VII as well. ..." 429 U.S. at
144, And, importantly, this Court then
relied upon an interpretation of the
Equal Pay Act's equal work standard in
rejecting plaintiffs' claims. Id. at
144-45, Despite this evident conflict
with the instant decision, the court of
appeals did not discuss the Court's re-
liance in General Electric upon. an
interpretation of the equal work
standard. 8
8 The court of appeals did refer to
this Court's decision in Manhart v. City
of Los Angeles Dept. of Power & Water,
U.S. 02 eULLIF (l2a). However,
= 16 =
Moreover, the Ninth Circuit's deci-
sion herein is contrary to this Court's
decisions relating to statutory con-
struction in United States v. United
Continental Tuna Corp., 425 U.S. 164
(1976) and Train v. Colorado Pub. Int.
(cont.) the court of appeals admitted
that the Manhart decision did not
address the question of whether’ the
Equal Pay Act's equal work’ standard
applied to Title VII wage claims (12a).
In Manhart, supra, this Court was not
called upon to decide whether the Equal
Pay Act's equal work standard had been
incorporated into Title VII by the
Bennett Amendment. There was no doubt
in Manhart that the City required women
to contribute more to the pension plan
than men performing the same work.
However, the City argued that its
practice was protected by one of the
Equal Pay Act's affirmative de- fenses
because it was based on a "factor other
than sex" -- the fact that women on the
average live longer than men. This
Court acknowledged that the Equal Pay
Act's affirmative defenses had _ been
incorporated into Title VII by the Ben-
nett Amendment and then determined that
the City's practice was not protected by
one of the affirmative defenses. 435
U.S. at 711-13. But the Manhart decis-
ion is in no way inconsistent with the
General Electric decision which indi-
cates that the equal work standard as
well as the affirmative defenses was
incorporated into Title VII by’ the
Bennett Amendment.
- 19 «-
Research Group, Inc. , 426 U.S. 1
(1976). In United Continental Tuna,
thelower court had held that an amend-
ment to the Suits in Admiralty Act al-
lowed plaintiffs to sue the United
States under that Act and ignore the
applicable and more stringent Public
Vessels Act. This Court rejected that
construction of the Suits in Admiralty
Act because it amounted to a repeal of
the Public Vessels Act by implication
without legislative history indicating
that Congress intended that result. 425
U.S. at 169. Similarly, in Colorado
Pub. Int. Research Group this Court re-
jected a construction of the Federal
Water Pollution Control Act, 33 U.S.C.
§1251 et seq., which would have substan-
tially altered the regulatory scheme
established under the Atomic Energy Act,
42 U.S.C. §2011 et seg., without express
Congressional intent supporting that
result. There, the Court held that a
construction of the more recent statute
was improper because it altered the pol-
icy of the earlier statutory scheme
without a "clear indication of legisla-
tive intent". 426 U.S. at 24. In the
instant case, the Ninth Circuit's con-
« 26 =
Struction of the Bennett Amendment and
Title VII repeals the Equal Pay Act by
implication without any legislative his-
tory indicating that Congress intended
to abandon the carefully developed equal
work standard applicable to the wage
discrimination area. ;
With respect to the Equal Pay Act,
Congress spent eighteen months deliber-
ating over the entire area of sex-based
discrimination and decided to limit the
involvement of government and the courts
to claims meeting the equal work stan-
dard. In the 1963 debate on H.R. 6060,
which contained the equal pay for equal
work standard eventually adopted by Con-
gress in the Equal Pay Act, Congressman
Goodell, the sponsor of H.R. 6060,
stated:
"Last year when the House
changed the word ‘comparable’ to
‘equal' the clear intention was
to narrow the whole concept. We
went from ‘comparable' to
‘equal' meaning that the jobs
involved should be virtually
identical, that is, they would
be very much alike or closely
related to each other.
"We do not expect the Labor
Department people to go into an
. 2
establishment and attempt to
rate jobs that are not equal.
We do not want to hear’ the
Department say, ‘Well, they
amount to the same thing,' and
evaluate them so they come up to
the same skill or point. We
expect this to apply only to
jobs that are substantially
identical or equal. I think
that the language in the bill
last year which has been adopted
this year, and has been fuxther
expanded by reference to equal
skill, effort, and working
conditions, is intended to make
this point ver clear." 109
Cong. Rec. 9197.
9 Congressman Frelinghuysen stated
that "the administration of the equal
pay concept, . . . will not be excessive
nor excessively wide ranging. What we
seek is to insure, where men and women
are doing the same job under the same
working conditions, that they will re-
ceive the same pay. It is not intended
that either the Labor Department or in-
dividual employees will be equipped with
hunting licenses." (Emphasis added)
109 Cong. Rec. 9196. See also the com-
ments of Congressmen Griffin and Thomp-
son, 109 Cong. Rec. 9197-98 (concerning
examples of jobs that Congress intended
not be compared for purposes of wage
discrimination claims), and the comments
of Congresswoman St. George and
Congressman Landrum, 108 Cong. Rec.
14767-68 (1962) (concerning the views of
the House in amending a 1962 equal pay
proposal to provide for an "equal work"
standard, rather than a "comparable
work" standard).
a 22 «
Congressman Goodell also stated that it
was “not intended that the Secretary of
Labor or the Courts will substitute
their judgment for the judgment of the
employers." 109 Cong. Rec. 9209. Simi-
larly, he said "[i]Jt is not the business
of the Secretary of Labor to write job
evaluation systems." Id. Accordingly,
under the Equal Pay Act, Congress "did
not authorize the Secretary or the
Courts to engage in wholesale re-evalua-
tion of any employer's pay structure in
order to enforce their own conceptions
of economic worth." Brennan v. Price
William Hospital Corp., 503 F.2d 282,
285 (4th Cir. 1974), cert. denied, 420
U.S. 972 (1975).
There is no legislative indication
that in enacting the Civil Rights Act of
1964 Congress intended to reject all of
its work and to abandon the limitations
it had just one year previously placed
upon wage discrimination claims in which
the federal courts were to become
involved. As discussed above, the
Senate and the House took measures to
preserve the equal work standard in
Title VII by adopting the Bennett Amend-
ment. But the point here is that where
o 28 -%
Congress has thoroughly deliberated and
meticulously drafted a statute reflect-
ing its judgment on a specific area,
that judgment will control the interpre-
tation of a more general later enactment
absent a clear statement to the contrary
in the subsequent statute. United Con-
tinental Tuna, supra; Colorado Pub. Int.
Group, supra.
The Ninth Circuit's construction of
Title VII herein authorizes an evasion
of the policy and regulatory scheme of
the Equal Pay Act and in effect repeals
the Equal Pay Act by implication. How-
ever, since there is no Congressional
intent authorizing Title VII plaintiffs
to evade the Equal Pay Act and its stan-
dard, the court of appeals' construction
of Title VII is in conflict with the
decisions of this Court. United Conti-
nental Tuna, supra; Colorado Pub. Int.
Research Group, supra.
III. THE COURT OF APPEALS INCORRFCTLY
DECIDED THE QUESTION POSED FOR
REVIEW
The court of appeals misconstrued
the terms of the Bennett Amendment.
a 22 «
(3a-18a). The court of appeals reasoned
that the use of the word "authorized"
literally meant that the Bennett Amend-
ment only incorporated the Equal Pay
Act's affirmative defenses because the
Equal Pay Act "‘authorizes' a differen-
tial only where one of the four defenses
is invoked" (9a). However, the court of
appeals improperly selected a meaning
for "“authorized" that best suited its
view of what the ultimate result should
be, and disregarded other common mean-
ings of the word and the legislative
purpose for the Bennett Amendment.
Cabell v. Markham, 148 F.2d 737, 739 (2d
Cir. 1945), aff'd, 326 U.S. 404 (1945).
"Authorized" also means “to permit a
thing to be done in the future", Black's
Law Dictionary (4th ed. 1968), at 169,
and when the word is viewed under that
meaning the Bennett Amendment "author-
izes" differentials in pay in situations
not involving equal work. Even if the
term is limited to a meaning signifying
express sanction or endorsement, the
carefully considered decision of Con-
gress to limit the application of the
Equal Pay Act to circumstances involving
equal work was a conscious authorization
» 96 «
of unequal pay in all circumstances in-
volving unequal work, including’ the
category of comparable work for which
protection was rejected.
The court of appeals herein largely
confined itself to the bare words of the
Statute and improperly ignored legisla-
tive history. Lynch v. Overholser, 369
U.S. 705, 710 (1962).19 ana although
the Ninth Circuit did review some of the
relevant Title VII legislative history,
it misinterpreted the import of, or
failed to accord sufficient weight to,
the Congressional intent to incorporate
the equal work standard into Title VII.
For example, early in the Senate debate
of H.R. 7152, Senator Clark, a floor
manager of the bill, submitted a memor-
andum in the course of responding to
objections that had been raised to the
bill which the sponsors of the bill con-
sidered to be unfounded. One unfounded
objection stated that H.R. 7152 did not
include the limitation of the Equal Pay
10 The court of appeals did not
discuss any of the legislative history
of the Equal Pay Act which shows Con-
gress' intent just one year prior to the
passage of Title VII to limit broad in-
quiry by the courts in the wage area.
a. 26
Act “with respect to equal work on jobs
requiring equal skills in the same es-
tablishments, and thus, cut[s] across
different jobs." 110 Cong. Rec. 7217
(1964). Senator Clark responded that
"(t]he standards in the Equal Pay Act
for determining discrimination as_ to
wages of course, are applicable to the
comparable situtation under Title VII."
Id. (Emphasis added) .11
The court of appeals’ incorrectly
held that Senator Clark meant that when
a Title VII plaintiff asserts an equal
work claim, the equal work standard ap-
Plies, but for claims not involving
equal work, the equal work standard does
not apply (17a-18a). Under the Ninth
Circuit's analysis Senator Clark was
agreeing that wage discrimination claims
under Title VII would "cut across dif-
ferent jobs." But the purpose of Sena-
tor Clark's memorandum, as floor mana-
ger, was to reply to unfounded objec-
tions to the bill, not to raise objec-
tions he agreed with. In fact, Senator
11 The full text of the pertinent
unfounded objection and Senator Clark's
answer are set forth in the court of
appeals' supplemental decision (6a-7a).
= 29 «
Clark was disagreeing with the objection
and stating that Title VII would not
allow claims which "cut across different
jobs" because of its in pari materia
relationship with the Equal Pay Act's
equal work standard.
Moreover, the court of appeals mis-
interpreted Senator Bennett's comments.
Senator Bennett offered his amendment
because of his stated concern that per-
haps not enough attention had been paid
to potential conflicts between H.R. 7152
and the Equal Pay Act due to the "whole-
Sale" insertion of the word "sex" in the
bill. 110 Cong. Rec. 13647 (1964).
Senator Bennett said: "[t]he purpose of
my amendment is to provide that in the
event of conflicts, the provisions of
the Equal Pay Act shall not be nulli-
fied". Id. The court of appeals' in-
terpretation of Senator Bennett's com-
ments -- that Senator Bennett intended
to incorporate only the Equal Pay Act's
affirmative defenses into Title VII --
renders the Bennett Amendment meaning-
less since such affirmative defenses
were already contained in H.R. 7152 in
the first sentence of Section
703(h).12. The court of appeals. was
—
apparently unaware of the importance of
the first sentence of §703(h) when it
initially decided this case, but its
subsequent discussion of the matter in
the Supplemental Opinion denying rehear-
ing is not persuasive.13
12 The opening sentence of §703(h)
already protected compensation which is
based on a seniority system, a merit
System or a system which measures earn-
ings by quantity or quality of produc-
tion. The fourth Equal Pay Act defense,
a “factor other than sex," was already
contained in the core provisions of
Title VII (Section 703(a)) which make
Title VII applicable only if there is
discrimination on the basis of sex, 42
U.S.C. §2000e-2(a). Sections 703(a) and
703(h) of Title VII are set forth in the
appendix hereto (80a).
13 The court ‘of appeals implied
that it makes no difference whether the
Bennett Amendment is' rendered meaning-
less because nothing in §703(h) was
meant to have a "substantive" effect on
the anti-discrimination prohibitions of
Title VII. (10a). That statement is
Clearly incorrect, as shown by this
Court's deciston in International Bro-
therhood of Teamsters v. United States,
431 U.S. 324 (1977). The court of ap-
peals also ignored this Court's reliance
on an interpretation of the equal work
Standard in General Electric, supra,
which shows that the Bennett Amendment
was intended to have a substantive ef-
fect. The Ninth Circuit's statement
(10a) that the Bennett Amendment (cont.)
« 98 «
Cloture limited the time Senator
Bennett had to introduce the Bennett
Amendment. But he later clearly ex-
plained that the Bennett "amendment
means that discrimination in compensa-
tion on account of sex does not violate
Title VII unless it also violates the
Equal Pay Act." lll Cong. Rec. 13359
(1965). At the time of Senator Ben-
nett's more complete explanation of in-
tent, Senator Dirksen stated that he,
Senator Humphrey (a floor leader of H.R.
7152) and the Senate as a whole passed
the Bennett Amendment in accord with
Senator Bennett's understanding of the
Amendment. 111 Cong. Rec. 13360
(1965). The court of appeals improperly
failed to accord weight to these expres-
sions of Congressional intent.14
(cont.) clarifies the inclusion of the
affirmative defenses is not persuasive
since the affirmative defenses had al-
ready been included by the first sen-
tence of §703(h). Finally, the court's
Statement (lla) that the Bennett Amend-
ment Clarified the burden of proof in an
equal pay-type case filed under Title
VII is not supported by the Bennett
Amendment or any legislative history.
14 The court of appeals would not
rely on the 1965 statement of (cont.)
= 309 «
(S5a-6a).
Additionally, the court of appeals
erred with respect to Congressman Cel-
ler's interpretation of the Bennett
Amendment. Congressman Celler, the or-
iginal sponsor of H.R. 7152, provided
the official and only explanation of the
(cont.) Senator Bennett because it was
not contemporaneous with the passage of
Title VII (5a-6a). However, Senator
Bennett could not explain the Bennett
Amendment when it was offered because of
the invocation of cloture. And he did
make his later statement shortly after
the enactment of Title VII. This Court
has accorded weight to non-contemporan-
eous legislative statements. E.ge,
Sioux Tribe v. United States, 316 U.S.
° -330 (1942); Haynes v. United
States, 390 U.S. 85 (1168). The Court's
decision in Galvan v. Press, 347 U.S.
522 (1954), is incorrectly interpreted
by the court of appeals (5a). Galvan
supports the view that Senator Bennett's
1965 statement is entitled to great
weight since he was the sponsor of the
Amendment. In Galvan, supra, this Court
relied upon a 1951 memorandum by Senator
McCarran in interpreting the meaning of
a 1950 statute he sponsored. 347 U.S.
at 526-27. Accordingly, the court of
appeals erred by not according weight to
the 1965 statements of Senator Bennett
and Senator Dirksen. (Senator Dirksen's
1965 statement was not even discussed by
the court of appeals). Those statements
make clear that the purpose of the Ben-
nett Amendment was to incorporate the
equal work standard into Title VII.
» $3) «
Bennett Amendment to the House by stat-
ing that the Bennett Amendment "[p]ro-
vides that compliance with the Fair
Labor Standards Act as amended satisfies
the requirement of the title barring
discrimination because of sex -- section
703(b) [sec] [703(h)]".25 110 Cong.
Rec. 15896 (1964). While the court of
appeals recognized that Congressman Cel-
ler's explanation did not support its
interpretation of the Bennett Amendment,
it decided not to follow that clear
Statement of legislative intent "in view
of the contrary or inconclusive legisla-
tive history previously discussed."
(8a). However. as shown above, there is
no contrary legislative history. Con-
gressman Celler's explanation is enti-
tled to great weight because (1) it was
made by the sponsor of the legislation
who obviously understood its provisions,
including the amendments, and (2) the
House passed the bill based on Congress-
man Celler's explanation of the bill.
United States v. United Mine Workers,
e
15 The Eyjual Pay Act is contained
in the Fair Labor Standards Act, 29
U.S.C. §206(d).
« 32 «
330 U.S. 258, 279-80 (1947); Federal
Energy Administration v. Algonquin SNG,
Inc., 426 U.S. 548, 564 (1976).
The court of appeals also erred by
misreading the EEOC's contemporaneous
interpretation of the Bennett Amend-
ment. In 1965, shortly after the Equal
Pay Act and Title VII were enacted, the
EEOC promulgated the following official
guideline concerning the inter-relation-
ship of the two laws (formerly codified
at 29 C.F.R. §1604.7, quoted in perti-
nent part):
"(a) Title VII requires that
its provisions be harmonized with
the Equal Pay Act (section 6(d) of
the Fair Labor Standards Act of
1938, 29 U.S.C. 205{d)) in order to
avoid conflicting interpretations or
requirements with respect to situa-
tions to which both statutes are
applicable. Accordingly, the Com-
mission interprets section /03(h) to
mean that the standards of equal pay
for equal work set forth in the
Equal Pay Act for determining what
is unlawful discrimination in com-
pensation are applicable to Title
VII. However, it is the judgment of
the Commission that the employee
coverage of the prohibition against
discrimination in compensation be-
cause of sex is coextensive with
that of the other prohibition in
section 703, and is not limited by
= 93 «
section 703(h) to those employees
covered by the Fair Labor Standards
Act." (Emphasis supplied) .16
The court of appeals did not even dis-
cuss the key second sentence of the
EEOC's 1965 guideline. The court of
appeals also erred by interpreting the
guideline to mean that the equal work
standard only applies when a plaintiff
alleges an equal pay violation under
Title VII. (37a). However, by its
terms the EEOC guideline applied to all
types of compensation claims -- not just
"equal pay-type claims" -- because the
reference to th equal work standard "de-
termining what is unlawful discrimina-
tion in compensation" is not limited in
any way.1/
16 The Commission later tried to
modify this view in 1972 by issuing a
new interpretation of the Bennett Amend-
ment, see, 29 C.F.R. §1604.8, but the
earlier guideline is entitled to greater
weight since it was more contemporaneous
with the passage of Title VII. General
Electric, supra, 429 U.S. at 142.
17 The court of appeals' approach
is fundamentally inconsistent. It held
that the Bennett Amendment did not in-
corporate the equal work standard into
Titie VII. However, when confronted
with authority such as Senator (cont.)
= 36 «
IV. THE COURT OF APPEALS HAS DECIDED
AN IMPORTANT QUESTION OF FEDERAL
LAW WHICH SHOULD BE SETTLED BY
THIS COURT
The issue raised herein is consi-
dered to be extremely important by the
government, employers and unions. The
Chairwoman of the Equal Employment Op-
portunity Commission has stated that the
issue is "the same kind of outsized is-
sue that school desegregation was", the
"most difficult issue to arise under
Title VII" and the "women's issue of the
1980's". See BNA Daily Labor Report
dated October 30, 1979, at A-2, A-3. At
recent EEOC hearings, representatives of
business, labor and public employers
(cont.) memorandum and the 1965 EEOC
guideline, the court of appeals’ held
that the equal work standard is applica-
ble to Title VII, but only for equal
pay-type claims (38a-39a). Moreover,
the court of appeals held that the res-
pondents had stated a claim under Title
VII by alleging a pay disparity which
obviously involved a comparison of two
different jobs (39a). Yet, the court of
appeals stated that the “effect of our
decision will not be to substitute a
‘comparable' work standard for an
"equal' work standard" (17a). These
inconsistencies reveal confusion in the
Ninth Circuit's reasoning requiring re-
view by this Court.
«' 98 «
stressed the importance of the standard
of proof to be applied to Title VII
sex-based wage discrimination
claims.18 Accordingly, the interest
in the question raised in this petition
goes far beyond the parties involved
herein.
The decision below has enormous im-
pact on the federal courts. In the in-
stant case, the district court has been
instructed to consider respondents'
Claim that the Matron job is discrimina-
torily underpaid when compared to the
different Corrections Officer job alleg-
edly because the pay differential be-
tween the jobs is greater than differ-
ences in difficulty between the jobs.
(18a). Resolving such a claim would
entail complex questions of job evalua-
tion -- and would result in the district
court imposing on the parties its con-
ception of the economic value of the
jobs.19 This process would overburden
18 See BNA Daily Labor’ Report
dated April 28, 1980 at A-14; BNA Daily
Labor Report dated April 29, 1980 at A-5
to A-12 and BNA Daily Labor Report dated
April 30, 1980 at A-8 to A-15.
19 See, Lindsay, Equal Pay (cont.)
—_—
_
«~ D6 a
the courts because the courts simply do
not have the experience and expertise of
employers and unions in the job evalua-
tion area. Moreover, the decision below
will result in numerous Title VII suits
being filed, creating a significant bur-
den on the courts not intended by Con-
gress, 29
(cont.) for Comparable Work: An Econom-
ic Analysis of a New Anti-discrimination
Doctrine (1980), published by the Law
and Economics Center of the University
of Miami. Professor Lindsay cautions
against the "[a]Jrbitrary mainipulation
of wage rates" and reasons that govern-
mental interference in the wage area
could result in "“counterproductive ef-
fects", such as an overall loss of
jobs. Id. at 33-34. Moreover, Profes-
sor Lindsay concluded that “wage deter-
mination in different occupations is a
complex, simultaneous process" and that
"even in the absence of prejudice, and
when performed under conditions of equal
skill, effort, and responsibility, the
real market value of dissimilar work can
differ markedly." Id. at 3-4. The fact
that wage rates depend on so many com-
plex factors was one of the prime rea-
sons for the creation of the equal work
standard -- to limit federal involvement
in the wage area except in equal work
situations.
20 There already has been a _ sub-
stantial amount of Title VII wage dis-
Crimination litigation notwithstanding
the fact that the courts have generally
o 37 «
The decision below also raises the
possibility of enormous financial conse-
quences to individual employers and the
economy as a whole.2l with respect to
(cont.) rejected claims not meeting the
equal work standard. See the cases
cited supra at 1l et seq., which repre-
sent only a portion of the suits alleg-
ing wage discrimination under Title
VII. If the equal work standard would
not apply as a limitation on Title VII
sex-based wage discrimination claims,
the amount of such litigation surely
would increase.
21 In discussing these economic
consequences, Fortune Magazine observed:
There are two ways to cor-
rect the imbalance in earnings
[between the sexes]. Women can
step into higher-income jobs, a
commendable process that is, of
course, gradually taking place.
But if the world could _ be
changed by edict, there is a
second method that would work
much faster. Women could remain
in their customary jobs and men
in theirs and employers could be
ordered to pay the same wages to
all whose work is deemed to be
of equal value.
That would certainly cor-
rect imbalances rapidly, but the
economy would surely be much
disrupted in the _ process. At
the extreme, to raise the aggre-
gate pay of the country's (cont.)
» 38 «
the County and other local public em-
ployers dependent upon a limited tax
base for sources of revenue, the poten-
tial financial impact of tthe federal
courts adjusting wage rates under the
court of appeals' novel approach in this
case is very troublesome, particularly
Since this Court has not approved the
court of appeals' approach herein.
CONCLUSION
For the sreasons7 stated, the
petition for a writ of certiorari should
be granted.
Respectfully submitted
Lawrence R. Derr
(cont.) 27.3 million full-time
working women high enough so
that the median pay for women
would equal that of men would
add a staggering $150 billion a
year to civilian payrolls. Such
a radical step, of course, seems
too preposterous to be taken
seriously ...«-« "The EEOC's
Bold Foray Into Job’ Evalua-
tion," Fortune, September 11,
1978, 58-59.
APPENDIX
Supplemental Opinion of the
Court of Appeals
(Decided May 1, 1980)
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTA GUNTHER, VELENE
M. VALLANCE, MARION E,
VANDER ZANDEN, YVONNE M.
HATTON,
Plaintiffs-
Appellants,
vs.
THE COUNTY OF WASHING-
TON: SHERIFF WARREN
BARNES, in his capacity
as Sheriff of Washington
County; CAPTAIN STAN
FRIESE and SERGEANT
CLARENCE RAMSETH, in
their capacities as
Washington County Police
Officers,
Defendants-
Appellants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No. 76-3448
SUPPLEMENTAL
OPINION
ON DENIAL
OF REHEARING
Appeal from the
United States District Court:
for the District of Oregon
»- 29 -
Before: MERRILL and TANG, Circuit Judges
and TAYLOR,* District Judge.
TANG, Circuit Judge:
After our opinion in this matter was
filed, Gunther v. County of Washington,
NO. 76-3448 (9th Cir., filed August 16,
1979), the County petitioned for rehear-
ing, and the Equal Employment Advisory
Council (EEAC), an association repre-
senting the interests of employers
submitted an amicus curiae brief in
support. The County now argues’ that
rehearing is necessary because the panel
decided an important issue -- whether
Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e-1 -
2000e-17 (1976), may support a theory of
sex-based wage discrimination that is
not based on a denial of equal pay --
with minimal discussion of the issue by
the parties. The County and the _ EEAC
contend that the panel overlooked legis-
lative history and case law that would
have led it to conclude that
discrimination in compensation on
*“Honorable Fred M. #£Taylor, Senior
United States District Judge for the
District of Idaho, sitting by designa-
tion.
- 3a -
account of sex does not violate Title
VII unless it also violates the Equal
Pay Act, 29 U.S.C. § 206(d)(1) (1970).
It is true that the parties. in-
adequately presented this issue before
the court. Nevertheless, the issue was
raised at trial, decided by the district
court, and raised on appeal. We are
thus obliged to reach the issue. Never-
theless, we take this opportunity to
address briefly the arguments made in
the petition for rehearing.
I.
The County and the EEAC first con-
tend that the panel overlooked signifi-
cant legislative history of Title VII in
resolving the meaning of the Bennett
Amendment. Of the three short items of
legislative history that they present,
the one on which they most rely is the
Statement of Senator Bennett, the amend-
ment's sponsor, in which he endorses the
interpretation of the amendment that we
rejected in Gunther. lll Cong. Rec.
13359 (1965).
Senator Bennett's statement is an
interesting piece of “legislative his-
tory." The Bennett Amendment was passed
in 1964 as part of the original Civil
- 4a-
Rights Act. One year later, Senator
Bennett inserted in the Congressional
Record an excerpt from a law review
article in which the article's author
Suggests that there are two conflicting
interpretations of the Bennett Amendment
(the same two recognized by the panel),
plus a memorandum from his’ staff to
Clarify which interpretation Bennett
believed to be the correct one. The
memorandum concluded that "the amendment
means that discrimination in compensa-
tion On account of sex does not violate
Title VII unless it also violates the
Equal Pay Act." Id.
Before inserting the article and the
memorandum, Senator Bennett explained
why he waited a year to explain what he
really meant when he _ introduced his
amendment. According to Senator
Bennett, under the Senate rules then in
effect he was allowed to introduce the
amendment but was not allotted time to
discuss it. Senator Bennett said that
this
resulted in action by the Senate
without the creation of any
legislative history. Thus, the
Senate failed in its responsi-
bility to give sufficient guid-
ance to those in the executive
- 5a -
branch and elsewhere to those
who must interpret and apply the
amendments adopted.
As an example of what has
occurred because of the confu-
sion and near chaos that pre-
vailed on those days, I find
myself today under the necessity
of trying to create legislative
history that should have been
created then.
As the amendment's sponsor, Senator
Bennett's understanding of the amendment
might have been entitled to some weight
if it had been expressed contempora-
neously with the passage of the legisla-
tion. See Galvan v. Press, 347 U.S.
522, 526-27 (1954). Coming one year
after the Bennett Amendment was enacted,
however, the statement at best reflects
what was on Senator Bennett's mind when
he introduced the amendment and is
entitled to no weight. See Manhart v.
Los Angeles Department of Power _ and
Water, 553 F. 2d 581, 589 (9th Cir.
1976), aff'd in part and rev'd in part
on other grounds, 435 U.S. 702 (1978)
(discussion occurrring "hours" after
Passage of Bennett Amendment is not part
of amendnent's legislative history).
Either from a legal standpoint or as a
- 6a -
practical matter, Senator Bennett's
statement cannot express what was on
Congress’ collective mind when it acted
a year earlier. If Senator Bennett's
"clarifying" statement has any signifi-
cance, it must be as evidence that the
amendment was ambiguous on its face and
that its contemporaneous legislative
history was not enlightening.
The second item of legislative
history produced by the County and the
EEAC also tends to support the panel's
Original interpretation. This consists
of an answer by Senator Clark, a pro-
ponent of Title VII, to objections
against the proposed legislation:
Objection: The sex anti-
discrimination provisions of the
bill duplicate the coverage of
the Equal Pay Act of 1963. But
more than this, they extend far
beyond the scope and coverage of
the Equal Pay Act. They do not
include the limitations in that
act with respect to equal work
on jobs requiring equal skills
in the same establishments, and
thus, cut across different jobs.
Answer: The Equal Pay Act is
a part of the wage hour law,
with different coverage and with
numerous exemptions unlike title
VII. Furthermore, under title
VII, jobs can no _ longer be
- ta =
Classified as to sex, except
where there is a rational basis
for discrimination on the ground
of bona fide occupational
qualification. The standards in
the Equal Pay Act for determin-
ing discrimination as to wages,
of course, are applicable to the
comparable situation under title
VII.
110 Cong. Rec. 7217 (1964).
Senator Clark's response is entirely
compatible with the court's’ opinion.
Senator Clark's comment that the Equal
Pay Act contained different coverage and
numerous exemptions reflected an under-
Standing that the Equal Pay Act was to
operate separately and independently
from Title VII. See Gitt and Gelb,
Beyond the Equal Pay Act: Expanding
Wage Differential Protections under
Title VII, 8 Log. 723, 746-48 (1977)
(hereafter "Beyond the Equal Pay Act").
His comment that the Equal Pay Act
Standards are applicable to the "com-
parable situation" under Title VII is
consistent with the panel's analysis of
the Gunther plaintiffs' discrimination
claims. When a discrimination claim is
based on a theory that the plaintiffs
are denied equal pay for equal work,
Equal Pay Act standards are applicable.
- 8a -
See Gunther, No. 76-3448, slip op. at
4-7 (9th Cir. August 16, 1979)). When a
claim of discrimination is not based on
an equal work theory, it must_ be
analyzed separately under Title VII.
Finally, the County and EEAC refer
to a comment made by Representative
Celler in explaining a number of
amendments made by the Senate to Title
VII:
Provides that compliance with
the Fair Labor Standards Act as
amended satisfies the require-
ment of the title barring dis-
crimination because of sex --
section 703(b).
110 Cong. Rec. 15896 (1964). Viewing
this solitary comment in its most
favorable light, we find that it is
insufficient to establish the County's
interpretation of the Bennett Amendment
in view of the contrary or inconclusive
legislative history previously discussed.
The County and the EEA next refer
to the statutory language of §703(h).
They argue that, because the _ first
sentence of § 703(h) contains three of
the four affirmative defenses contained
in the Equal Pay Act, an interpretation
that the Bennett Amendment merely
- 9a -
incorporated the Equal Pay Act defenses
into Title VII renders the amendment
meaningless.
Initially, it bears emphasis’ that
the language of the Bennett Amendment,
allowing a wage differentiation if such
differentiation is “authorized by the
provisions" of the Equal Pay Act, almost
compels the interpretation that the
Bennett Amendment ' merely incorporate
Only the Equal Pay Act's defenses into
Title VII. The Equal Pay Act applies
Only when a plaintiff has been denied
equal pay for equal work, and "“autho-
rizes" a differentiation only where one
of the four defenses is invoked. The
Equal Pay Act does not "authorize"
differentiations in the absence of equal
work; in those cases, it simply does not
apply. Read literally, the amendment
only incorporates the Equal Pay Act's
defenses. If Congress had intended to
say that wage differentials do not
violate Title VII unless they violate
the Equal Pay Act, it could have easily
said so.
With this in mind, the County's
reliance on the defenses included in the
first sentence of § 703(h) cannot, and
- 10a -
does not, alter the meaning of the words
used in the Bennett Amendment itself.
The County argues that the panel's
interpretation had no substantive effect
because three of the Equal Pay Act
defenses were already included in Title
VII. Yet the very inclusion of the
three affirmative defenses in the first
sentence of § 703(h) made no substantive
alteration of Title VII. These defenses
merely clarified Congress' intent that
Only discrimination on account of race,
color, religion, sex, or national origin
is forbidden by Title VII. See 110
Cong. Rec. 12722 (1964) (remarks of Sen.
Humphrey). Similarly, the Bennett
Amendment need not have effected a "sub-
stantive" change. It does not render
che Bennett Amendment meaningless to say
that it only incorporates the Equal Pay
Act defenses, because the Bennett
Amendment would still serve the purpose
of clarifying Congress' intent with
respect to the relationship of Title VII
and the Equal Pay Act.
Mcreover, the fact that the Bennett
Amendment incorporated an Equal Pay Act
defense -- the defense allowing dif-
ferentiation based "on any other factor
- lla -
other than sex" -- that is not contained
in the first sentence of § 703(h) is
significant. The incorporation of this
Equal Pay defense into Title VII
Clarifies the burden of proof in an
equal pay case brought under Title VII.
Under the Equal Pay Act, the burden is
on the employer to show that its
practice falls within one of the four
defenses. See Corning Glass Works vy.
Brennan, 417 U.S. 188, 196 (1974). The
incorporation of the fourth affirmative
defense into Title VII makes clear that
once a Title VII plaintiff has shown
that she was denied equal pay for equal
work, the burden shifts upon the
employer to prove that the differentia-
tion was based on some factor other than
sex.1
The County and the EEAC next contend
that the panel ignored significant case
law in arriving at its interpretation of
the Bennett Amendment.
Although we look to the reasoning of
other circuits and district courts for
guidance, we are bound only by decisions
rendered in this circuit. See Allstate
Insurance Co. v. Stevens, 445 F. 2d 845.
846 (9th Cir. 1971). The only case
- l2a -
arising from this circuit that discussed
the Bennett Amendment was Manhart vy.
City of Los Angeles Department of Water
and Power, 553 F.2d 581 (9th Cir. 1976),
aff'd in part and rev'd in part on other
grounds, 435 U.S. 702 (1978). Although
the court did not address the present
issue, it was obliged to address’ the
Bennett Amendment and the Equal Pay Act
affirmative defenses in the context of
Suit brought under Title VII to chal-
lenge a_eretirement plan. The court
specifically noted, in discussing the
Equal Pay Act's affirmative defenses,
that "all that the Bennett Amendment did
was to incorporate the exemptions of the
Equal Pay Act into Title VII." Id., 553
F.2d at 590. Although arising in a
different context, the express language
of this circuit cannot be readily
disregarded. Nevertheless, discussion
of case law in other circuits and
district courts may be enlightening in
showing the ambiguity and confusion that
has often characterized consideration
this issue.
The only appellate case that has
specifically recognized the relationship
between Title VII, the Equal Pay Act and
- l3a -
the Bennett Amendment is Christensen v.
Iowa, 563 F.2d 353 (8th Cir. 1977). In
Christensen, however, the majority
opinion specifically declined to address
whether Title VII plaintiffs had to
prove a violation of the Equal Pay Act
to succeed on their equal pay claims,
finding that’ the plaintiffs had not
established a prima facie case under
Title VII. Id. at 355.
Other courts, although sometimes
assuming or implying that a Title VII
plaintiff could not succeed on her
wage-discrimination claim unless she
could prove a violation of the Equal Pay
Act, have involved equal pay-type
claims. See Orr v. MacNeill & Son,
Inc., 511 .2d 166 (5th Cir.), cert.
denied, 423 U.S. 865 (1975); Ammons _ v.
Zia, 448 F.2d 117 (10th Cir. 1971).
These equal-pay type Title VII claims,
of course, require analysis under Equal
Pay Act’ standards. See Gunther, No.
76-3448, slip op at 4-7 (9th Cir. August
16, 1979). Although the panels in both
Orr and Ammons appeared to assume that a
Title VII plaintiff claiming wage
discrimination could prevail only if she
proved a violation of the Equal Pay Act,
- l4a -
in neither case did the court analyze
the meaning of the Bennett Amendment and
its effect on the relationship between
the Title VII and the Equal Pay Act.
See Gitt and Gelb, Beyond the Equal Pay
Act at 752-55. This assumption that a
Title VII plaintiff could prevail only
by establishing an equal pay violation
has been perpetuated in later cases
involving only equal pay claims, where
statements limiting the scope of Title
VII were unnecessary to decide the case.
The failure of the courts to analyze
the meaning of the Bennett Amendment and
the relationship of the two acts has
resulted in an inconsistent approach
that underscores the ambiguity of the
Bennett Amendment. If the Bennett
Amendment really means, as_ the County
contends, that a plaintiff claiming wage
discrimination can succeed under Title
VII only if the discrimination also
violates the Equal Pay Act, then
logically the Bennett Amendment should
incorporate into Title VII not only the
equal work formula of the Equal Pay Act,
but also the Act's exemptions, employ-
ers, periods of limitations, and all
other differences in coverage between
- 15a -
the acts.2 Yet, not only have the
courts and the County failed to artic-
ulate whether the Bennett Amendment
incorporates the entire Equal Pay Act or
just its equal pay formula, they have
not even recognized that two extremely
different formulations of their position
exist.
Several of the district court cases
cited by the County have exhibited this
apparent inconsistency. For example, in
Molthan v. Temple University, 442 F.Supp
448 (E.D. Pa. 1977), the district court
considered equal pay claims under Title
VII even though the claims would have
been time-barred under the Equal Pay
Act. In Howard v. Ward County, 418 F.
Supp. 494, 503 (D.N.D. 1976), the court
held that the plaintiffs could assert
claims under Title VII even though, as
public employees, they could not recover
under the Equal Pay Act.
Indeed, the County's defense of this
case suffers from the~ same incon-
sistency. The Gunther plaintiffs sued
under Title VI because, during the time
of their alleged discrimination, the
Equal Pay Act did not apply to public
employees. Gunther, No. 76-3448, slip
- loa -
op. at 4 n.4 (9th Cir. August 16,
1976). Consistent with the position it
now appears to advocate, the County
should have moved to dismiss the
Plaintiff's suit on the ground that its
conduct could not have violated Title
VII because it did not violate the Equal
Pay Act. The County's failure to do so
reflects on the failure of the courts to
analyze and articulate the meaning of
the Bennett Amendment, as well as the
ambiguous nature of the amendment
itself. This court was certainly
warranted in not following the in-
adequate analyses and assumptions
perpetuated by other courts.
Finally, the County and the EEAC
argue that the legislative history of
the Equal Pay Act evidences Congress’
intent carefully to establish standards
against wage discrimination and _ that
Congress could not have intended _ to
disturb those standards when it hastily
included sex in Title VII. This
argument, however, cuts more forcefully
in the other’ direction. The same
Congress that enacted the Equal Pay Act
enacted Title VII one year later. MThus,
when the Congress included sex into
28 =
Title VII it was fully aware, from the
previous year's hearings, of the
employment problems of women. It may
have believed that the Equal Pay Act by
itself was inadequate to remedy sex
discrimination, or that broader protec-
tions were necessary. See Gitt and
Gelb, Beyond the Equal Pay Act at 744-45.
In any event, our interpretation of
the Bennett Amendment in Gunther does
not “nullify” the provisions of the
Equal Pay Act. The County and the EEAC
emphasize that Congress, in adopting the
Equal Pay Act, rejected "comparable"
work standard. The effect of our
decision will not be to substitute a
"comparable" work standard for an
"equal" work standard. Where a Title
VII plaintiff, claiming wage discrimina-
tion, attempts to establish a prima
facie case based solely on a comparison
of the work she performs, she will have
to show that her job requirements are
substantially equal, not comparable, to
that of a similarly situated male. The
Standards developed under the Equal Pay
Act are relevant in this inquiry. In
most cases, an equal work theory will
provide the most practical method of
- 18a -
establishing a prima facie case of wage
discrimination. All we hold here is
that a plaintiff is not precluded from
establishing sex-based wage discrimina-
tion under some other theory compatible
with Title VII. It is unnecessary to
determine now what theories might be
feasible. We do note that, because a
comparable work standard cannot be
substituted for an equal work standard,
evidence of comparable work, although
not necessarily irrelevant in proving
discrimination under some _ alternative
theory, will not alone be sufficent to
establish a prima facie case.
The Gunther plaintiffs apparently
presented evidence of intentional sex
discrimination that was not considered
by the district court because’ the
district court believed that disposition
of the equal pay claims was the end of
the inquiry. It is unclear from the
record whether the plaintiffs were
prevented from presenting other evidence
that might have established a claim of
sex discrimination. Because of the
district court's familiarity with this
case, the extent of the further proceed-
ings needed to consider the plaintiffs'
- 19a -
alternative claims, such as the need for
an evidentiary hearing, is committed to
its discretion.
The petition for rehearing is denied.
FOOTNOTES
ror example, even if an employer
could show that a sex classification was
justified as a bona fide occupational
qualification under Title VII, see 42
U.S.C. § 2000e-2(e), the employer might
Still be liable for a discriminatory
wage differential if unable to prove
that the differential was the result of
any other factor other than sex. See
Sullivan, The Equal Pay Act of 1963:
Making and Breaking a Prima Facie Case,
31 Ark. L.Rev. 545, 547 n.14 (1978).
2For example, the Fair Labor Standards
Act exempts numerous employees from
coverage under its provisions, see 29
U.S.C. § 213; no similar exemptions are
contained in Title VII; see also
Sullivan, The Equal Pay Act of 1963:
Making and Breaking a Prima Facie Case,
31 Ark. L.Rev. 545, 546 n. 9-13 (1976).
- 20a -
Opinion of the Court of Appeals
(Decided August 16, 1979)
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTA GUNTHER, VELENE
M. VALLANCE, MARION E.
VANDER ZANDEN, YVONNE M.
HATTON,
Plaintiffs- No. 76-3448
Appellants,
OPINION
vs.
THE COUNTY OF WASHING-
TON: SHERIFF WARREN
BARNES, in his capacity
as Sheriff of Washington
County; CAPTAIN STAN
FRIESE and SERGEANT
CLARENCE RAMSETH, in
their capacities as
Washington County Police
Officers,
Defendants-
Appellants.
ee
Appeal from the
United States District Court
for the District of Oregon
Before: MERRILL and TANG, Circuit Judges
and TAYLOR,* District Judge.
TANG, Circuit Judge:
*Honorable Fred M. Taylor, Senior
United States District Judge for the
District of Idaho, sitting by designa-
tion.
- 2la -
Plaintiffs Alberta Gunther, Velene
Vallance, Marion Vanderzanden, and
Yvonne Hatton were four women employed
as jail matrons! at the Washington
County (Oregon) jail. The plaintiffs
guarded the inmates in the female
section of the county jail; males were
employed at a higher rate of pay to
guard the initiates in the male section.
The jobs of the plaintiffs and two other
matrons, Dorothy Holiday = and Donna
Firth, were terminated when the County
decided to move the women prisoners into
a facility in an adjacent county.
The plaintiffs sued the County
Sheriff Warren Barnes, Captain Stan
Friese, and Sergeant Clarence Ramseth2
under Title VII of the Civil Rights Act
of 1964, as amended, £2 U.S.C.
§2000e-1--2000e-17 (1976) ("Title VII");
Holiday and Firth did not sue. General-
ly, the plaintiffs alleged that’ the
defendants denied them equal pay for
equal work and that the defendants
terminated them, and later refused to
rehire them, in retaliation for their
demands for equal pay.
The district court segregated the
issues of liait.lity and damages. The
- 22a -
liability issue was tried to the court
on the basis of depositions, witness
summaries, exhibits and testimony. The
court entered judgment for the defen-
dants on the merits.
On appeal, the plaintiffs contend
(1) they were denied equal pay for work
substantially equel to that performed by
male guards, and even if the work was
not substantially equal, some of the
discrepancy in pay can be explained only
by sex discrimination; and (2) the
defendants retaliated against plaintiffs
for asserting equal pay demands’. by
abolishing their jobs, by forcing
Vanderzanden to resign, by noting on
personnel forms they would not rehire
the plaintiffs, and by refusing to
rehire Vallance. We affirm in part,
reverse in part, and remand for further
proceedings.
I
Discriminatory Compensation
Prior to June 1973, the male section
of the jail was staffed by male deputy
sheriffs. The deputy sheriffs were
assigned to jail duties on a temporary
basis only, as part of their training,
for periods ranging from several days to
- 23a -
one-year. In February 1973, the pay
range for a matron was $525-$668; for a
deputy sheriff, $736-$940; for a deputy
sheriff recruit, $668-812.
Beginning in late June 1973, the
deputy sheriffs were replaced by the
position of corrections officers. The
corrections officers were assigned to
the jail on a permanent basis, and the
position was open to both males and
females. In February 1973, the salary
range for a correction officer was
$701-896; the range for a _ correction
officer trainee was $668-812.
The district court found that,
although the matrons' jobs may have
required as much skill as those of the
male guards, the matrons' jobs did not
require equal effort or responsi-
bility.3 The court found that the men
and women had _ substantially different
workloads. The men and women worked in
separate quarters and the male jailers
guarded more than ten times as _ many
prisoners as each matron. Unlike the
men, the matrons, because they had fewer
prisoners to guard, devoted a signifi-
cant portion of their working time to
clerical duties which all parties agreed
- 24a -
was less valuable work. Having deter-
mined that the work was not substantial-
ly equal, the district court’ stated
"that is the end of the inquiry," and
disregarded the plaintiffs' claim that
some of the discrepancy in their pay was
due to sex discrimination.
The plaintiffs dispute these
findings. They contend that they were
denied equal pay because the male
jailers were paid more even though they
and the males both performed substan-
tially equal work. Plaintiffs further
contend that, even if the work was not
substantially equal, the defendants
nevertheless violated Title VII if some
of the difference in salary between the
Plaintiffs and the male guards can be
attributed to sex discrimination. In
order to evaluate these contentions, we
must first consider the interrelation-
ship of Title VII and the Equal Pay
Act. 4
A. The Equal Pay Claim
Under the broad coverage of Title
VII of the Civil Rights Act of 1964, it
is an unlawful employment oractice to
discriminate against an individual with
respect to compensation on the basis of
- 25a -
the individuals' sex. Section
703(a) (1), codified as 42 U.S.C.
§ 2000e-2(a) (1). The Equal Pay Act, §
206(d) of the Fair Labor Standard Act,
29 U.S.C. § 206(d), while specifically
designed to prohibit discrimination
based on sex in the area of compensa~
tion, is somewhat narrower in language.
The Equal Pay Act prohibits an employer
from discriminating "between employees
on the basis of sex by paying wages to
employees .. . at a rate less than the
rate at which he pays wages to employees
of the opposite sex .. . for equal work
on jobs the performance of which
requires equal skill effort and respon-
sibility, and which are performed under
Similar working conditions. . "9
The Act provides’ four affirmative
defenses by which an employer can avoid
liability despite proof of unequal pay
for equal work.
It is plain that the Equal Pay Act
overlaps with the coverage of §703(a) (1)
of the Civil Rights Act. See, e€.q.,
Shultz v. First Victorian National Bank,
420 F.2d 648, 659 n.26 (5th Cir. 1969).
Both statutes serve the same fundamental
purpose of remedying inequality in the
- 26a -
area of compensation, and where an equal
pay claim has been raised under either 4
Or both statutes, the courts have held
that the statutes should be construed
harmoniously. Id.; DiSalvo v. Chamber
of Commerce, 568 F.2d 593, 596 (8th Cir.
1978). As a result, courts have looked
to decisions interpreting the Equal Pay
Act for guidance in examining equal pay
claims asserted under Title VII. See,
e.g. Hays v. Potlatch Forests, Inc., 465
F.2d 1081, 1083 (8th Cir. 1972).
Generally, the Equal Pay Act
requires that women receive "equal pay
for equal work." See., e.g., Brennan v.
Prince William Hospital Corp., 503 F.2d
282 (4th Cir. 1974), cert. denied 420
U.S. 972 (1975). Under the Act, the
plaintiffs have the burden of proving
that they did not receive equal pay for
equal work. E.g., Christopher v. State
of Iowa, 559 F.2d 1135, 1138 (8th Cir.
1977). They are not required, however,
to show that the jobs performed are
identical. Peltier v. City of Fargo,
533 F.2d 374, 377 (8th Cir. 1976); Usery
V. Allegheny County Institutions
District, 544 F.2d 148, 153 (3rd Cir.
1976). Instead, the plaintiffs may
- 27a -
prove a violation of the Equal Pay Act
by showing that the skill, efforts, and
responsibility required in the perfor-
mance of the jobs is "substantially
equal." Usery v. Columbia University,
568 F.2d 953, 958 (2d Cir. 1977);
Ridgeway v. United Hospitals - Miller
Division, 563 F.2d 923, 926 (8th Cir.
1977). To make this showing, actual job
performance and content-~-not job titles,
classifications or descriptions--is
determinative. See Katz Vv. School’
District of Clayton, Missouri, 557 F.2d
153, 156 (8th Cir. 1977); Angelo _ v.
Bacharach Instrument Co., 555 F.2d 1164,
1171 (3a Cir. 1977). It is the overall
job, not its individual segements, that
must form the basis of comparison, see
Usery v. Richman, 558 F.2d 1318, 1320
(8th Cir. 1977), and, because job duties
vary so widely, each suit must be
determined on a case-by-case basis.
Brennan Vv. Prince William Hospital
Corp., 503 F.2d 282 (4th Cir. 1974),
cert. denied, 420 U.S. 972 (1975).
We apply the "clearly erroneous"
standard of review in determining
whether the district court correctly
found that the jobs were not substan-
- 28a -
tially equal. Fed. R. Civ« P. 52(a);
see DiSalvo v. Chamber of Commerce, 568
F.2d 593, 596-97 (8th Cir. 1978). Our
review of the record convinces us that
the district court's finding on this
issue was not clearly erroneous.
The district court relied heavily on
two factors in making its determina-
tion: the amount of clerical work
performed by the matrons and the
prisoner/guard ratio. The record
supports the district court's finding
that each jailer was responsible for
guarding a substantially greater number
of prisoners than each matron. Over a
six-month period from April to September
1973, the booking records show that the
female prisoner population averaged 1.85
inmates per day. The average daily
staff of matrons was about 5.5 matrons.
Therefore, approximately three matrons
were employed for each woman prisoner.
In contrast, the average daily staff of
13 male jailers guarded, on the average,
between 50 and 60 male inmates per day,
Or roughly 4 inmates for every guard.
In other words, comparing the male and
female prisoner/guard ratio, a male
guard was typically responsible for 12
- 29a -
times as many prisoners as a matron. ©
The record likewise supports’ the
district court's conclusion that’ the
Matrons did substantially more clerical
work than the male guards. / Because
they had fewer prisoners to guard, the
mMatrons were assigned to do clerical
work when they had no other work to
perform. As a result, they performed
substantial clerical work on every
shift, including clerical work relating
to the male prisoners. Often this work
consumed as much as 50% of their working
time. In contrast, the males spent very
little time performing clerical work
which at most pertained to the booking
of male prisoners. The plaintiffs do
not seriously dispute that clerical work
entails substantially less effort and
responsibility than guarding prisoners.
The plaintiffs argue that the amount
of clerical work and the prisoner-guard
ratios were "insignificant" differences
that did not justify the wage differen-
tials. According to the plaintiffs, the
clerical work was only incidental to
their primary duties; the prisoner/guard
ratio exaggerates the amount of the
males' responsibilities, because the
- 30a -
presence of a guard is required no
matter how many prisoners there are.
The record, however, supports’ the
conclusion that the greater amounts of
Clerical work and different prisoner/
guard ratio makes the position of male
guard qualitatively different that the
position of matron. The fact the each
male guard was required to guard more
than ten times as many prisoners as his
female counterpart makes a meaningful
difference. As the defendants point
out, more is required of a prison: guard
than making sure the cell doors remain
locked. Frequent contact between the
prisoners and the guard is necessary,
and the district court properly con-
cluded that the male guard was forced to
exert significantly greater effort and
waS given signficantly greater respon-
Sibility because of the much _ greater
number of prisoners for which he was
responsible. For these reasons, the
district court was not clearly erroneous
by concluding that the work was not
substantially equal.
B. Discriminatory Compensation Claims
Not Based on a Demand for Equal Pay.
If the plaintiffs' Title VII claim
- 3la -
was simply a claim that they were denied
equal pay for equal work, our inquiry
would stop here. The plaintiffs argue
more than this, however. They contend
that even if their jobs were not
substantially equal to those of the male
jailers, they should be allowed to prove
that some of the discrepancy in wages
was due to sex discrimination. Im-
plicitly, they argue that Title VII is
broader in scope than the Equal Pay Act
with respect to discriminatory compensa-
tion claims.
Despite the apparent importance of
this question, we have found no reported
appellate decision that has considered
whether Title VII is broader in scope
than the Equal Pay Act in this regard.
The cases considering the relationship
between Title VII and the Equal Pay Act
have involved claims that females were
being denied equal pay for equal work.
See, e.g., Di Salvo, 568 F.2d 593; Orr,
511 F.2d 166. Quite properly, these
cases have construed the two statutes
harmoniously; any other approach. may
have produced different results depend-
ing on whether a plaintiff labeled his
cause of action as being brought under
- 32a -
"Title VII" or under the “Equal Pay
Act.” These cases did not involve a
situation where, as here, the plainiffs
Claimed they were compensated discrimi-
natorily even if they did not perform
equal work. We conclude that Title VII
is broader in scope than the Equal Pay
Act; however, the resolution of this
issue requires a close analysis of the
relationship between the two statutes.
The Equal Pay Act, as_ discussed,
applies only to situations where a
plaintiff contends there has been a
denial of equal pay for equal work. It
does not apply, for instance, where the
Plaintiff is performing comparable (but
not substantially equal) work, or where
a position held by the plaintiff is
unique, see Rinkel V. Associated
Pipeline Contractors, 17 FEP Cases 224,
226 (D. Alas. 1978). In contrast, the
language of §703(a)(1) is much broader
than that contained in the Equal Pay
Act. Title VII, however, is not silent
on its relationship with the Equal Pay
Act. An amendment to § 703(h) of Title
VII, 42 U.S.C. § 2000e-2(h), commoniy
known as the Bennett Amendment, provides:
- 33a -
It shall not be ane unlawful
employment practice under this
subchapter for any employer ~to
differentiate upon the basis of
sex in determining the amount of
compensation paid or to be paid
to employees of such employer if
such differentiation is autho-
rized by the provisions of the
[the Equal Pay Act].
Two interpretations of the Bennett
Amendment are plausible. The Bennett
Amendment can be interpreted to incorpo-
rate the Equal Pay Act's equal work
formula into Title VII. Under this
construction, Title VII and the Equal
Pay Act would be coextensive in t#e area
of sexually discriminatory compensation
and a plaintiff could prove a violation
of Title VII only if discriminatory
compensation also violated the Equal Pay
Act. Alternatively, the Bennett
Amendment can be _ construed as simply
incorporating the Equal Pay Act's four
affirmative defenses, but not its equal
work standard, into Title VII's prohibi-
tion. We find the latter interpretation
more persuasive.
The relevant legislative history,
although sparse, is enlightening. The
Prohibition against sex discrimination
in Title VII was included only shortly
- 34a -
before the passage of the Civil Rights
Act. As a result, the legislative
history behind the sex discrimination
component of Title VII is “notable only
for its brevity." General Electric v.
Gilbert, 429 U.S. 125, 143 (1976). See
Manhart v. Los Angeles Department of
Water and Power, 553 F.2d 581, 587 (9th
Cir. 1976), aff'd in part and rev'd in
part on other grounds, 435 U.S. 702
(1978). Because sex was included in
Title VII at the last minute, Senator
Bennett became concerned that it might
conflict with the Equal Pay Act. He
proposed his amendment from the Senate
floor. The complete "legislative
history" of the Bennett Amendment is set
out in the margin.®
Although scant, this dialogue, if
anything, supports the interpretation
that, Title VII incorporated the Equal
Pay Act's four affirmative defenses but
not its equal pay formulation. There is
no indication that Congress, by the
passage of the Bennett Amendment
contemplated that the amendment would
apply to the kind of situation now
before us. Senator Bennett's comment
that the purpose of the amendment was
i
- 35a -
"to provide in the event of conflicts,
the provisions of tthe Equal Pay Act
Shall not be nullified," 110 Cong. Rec.
13647 (1964), most likely referred to
the potential for conflict that would
arise if the four affirmative defenses
contained in the Equal Pay Act were not
included in Title VII. Senator
Dirksen's remark that "“"faJll that the
pending amendment does is’ recognize
these exceptions, that are carried in
the basic act," id., appears to be to
the same effect.
Language in Manhart v. City of Los
Angeles Department of Power and Water,
553 F.2d 581 ((th Cir. 1977), also
supports our conclusion that the Bennett
Amendment was designed to incorporate
only the Equal Pay Act's four affirma-
tive defenses. In Manhart, the plain-
tiffs challenged a retirement plan
requiring greater contributions from
women under §703 of the Civil Rights
Act. In noting that such a plan was
unaffected by any of the Equal Pay Act's
affirmative defenses, we said "all that
the Bennett Amendment did was to
incorporate the exemptions of the Equal
Pay Act into Title VII," Manhart, 553
- 36a -
F.2d at 590. See Laffey v. Northwest
Airlines, Inc., 567 F.2d 429, 446 (D.C.
Cir. 1976), cert. denied 434 U.S. 1086
(1978) ("a sex-predicated wage differen-
tial is immune from attack under Title
VII only it if comes within one of the
four enumerated exceptions to the equal
pay act.")
Moreover, the broad remedial policy
behind Title VII persuades us that Title
VII's plain language should not _ be
limited further in the absence of a
clear Congressional directive. Legis-
lative enactments in the area of
job-related discrimination have long
evinced a general intent to - accord
parallel Or overlapping remedies.
Alexander v. Gardner-Denver Co., 415
U.S. 36, 47 (1974). Accordingly, the
rights created under Title VII are
independent of the rights created by
other statutes. Laffey, 567 F.2d at
445. If we were to limit Title VII's
protection against sexually discrimina-
tory compensation practices to those
covered by the Equal Pay Act, we would
in effect insulate other equally harmful
discriminatory practices from review.?
There is some district court
—
-
- 37a
authority that is contrary to our
interpretations, see IUE v. Westinghouse
Electric Corp., 19 FEP Cases 450 (D.N.J.
1979); Wetzel _v. Liberty Mutual Insur-
ance Co., 17 FEP cases 232 (W.D. Pa.
1978); Molthan v. Temple University, 412
F. Supp. 448 (E.D. Pa. 1977), but we do
not find these decisions persuasive. Of
these cases, only IUE gave substantial
consideration to the issue before us.
In support of its conclusion that Title
VII and the Equal Pay Act are coexten-
sive in this area, the court in IUE
relied heavily on cases in which equal
pay claims were brought under Title
VII. See id. at 456. The general rule
stated in the cases cited in IUE--that
Title VII equal pay claims should be
judged under Equal Pay’ standards--is
compatible with the view we have taken.
Those cases, however, did not consider
the issue whether Title VII prohibits
conduct outside the scope of the Equal
Pay Act, and we see no reason to extend
the rationale of those cases to a
significantly different issue which they
did not address.
The court in IVE also relied in part
on the 1965 guidelines!9 promulgated
- 38a -
by the Equal Employment Opportunity
Commission Id. at 455-56. See 30 Fed.
Reg. 14927 (1965). To the limited
extent that this guideline is authorata-
tive, see General Electric Co. Vv.
Gilbert, 429 U.S. 125, 141 (1976), we do
not regard it as contradictory to our
holding here. . The guidelines acknowl-
edged that §703(h) was designed to avoid
conflicting interpretations "with
respect to situations to which both
statutes are applicable." Consistently,
we hold that Equal Pay Act’ standards
apply in Title VII suits when plaintiffs
raise a claim of equal pay. When
Plaintiffs raise a claim under Title VII
of discriminatory compensation in the
absence of an allegation that they
perform substantially equal work, no
conflict with the Equal Pay Act arises
because the Equal Pay Act is inapplica-
ble.
In summary, we hold that, although
decisions interpreting the Equal Pay Act
are authoritative where plaintiffs suing
under Title VII raise a claim of equal
pay, Plaintiffs are not precluded from
suing under Title VII to protest other
discriminatory compensation practices
- 39a -
unless the practices are authorized
under one of the four affirmative
defenses contained in the Equal Pay Act
and incorporated into Title VII by
§703(h).
We note that problems of proof may
present substantial barriers to estab-
lishing this kind of discriminatory
compensation claim. Such problems,
however, are not sufficent reasons to
foreclose the plaintiff from the
opportunity to establish a claim of
discrimination.
At trial, the plaintiffs offered
evidence that a portion of the dis-
crepancy between their salaries and
those of the male guards could be
ascribed only to sex discrimina-
11 We think that on remand the
district court should consider’ this
tion.
evidence.
II
The Retaliations Claims
A. Termination.
In December 1973, the County decided
to board its prisoners at the Clackamas
County Jail and, effective January 15,
1974, to replace the six matrons with
two and one-half police stenographers.
- 40a -
The plaintiffs contend that the County
abolished their jobs in retaliation for
their claim for equal pay.
The district court found that the
County's decision was motivated by
legitimate, non-disciminatory objec-
tives, because transferring the women
prisoners and replacing them with male
prisoners would make better use of jail
space, and eliminating the matrons'
positions would save money.
Under §704(a) of the Civil Rights
Act of 1964, 42 U.S.C. §2000e-3, it is
an “unlawful employment practice for an
employer to discriminate against any of
his employees. ° - because he _ has
opposed any practice made an unlawful
employment practice by this subchapter
In order to establish a prima facie
violation of this section, the plain-
tiffs must show more than that they
protested practices contrary to Title
VII and that they were subjected to
adverse action by their . employer.
Miller v. Williams. 590 F.2d 317, 320
(9th Cir. 1979). The plaintiffs must
also make a showing that links their
conduct with the emmployer's9 action.
- 4la -
Id. Once the plaintiffs have made this
Showing, the defendants have the burden
of establishing a legitimate, non-
discriminatory reason for taking action
adverse to the plaintiffs. Id.
The district court made no express
finding whether the plaintiffs proved a
prima facie violation of §704(a); it
found only that’ the County had a
legitimate reason for terminating the
Plaintiffs. On the record before us, it
is questionable whether the Plaintiffs
showed a sufficent link between their
demands for equal pay and the adverse
actions taken against them to make a
prima facie showing. Assuming arguendo
that they have, we find that the dis-
trict court was not Clearly erroneous in
determining the County's action was
justified by legitimate, non-discrimina-
tory reasons.
Sometime in mid-1973, Sheriff Barnes
began receiving complaints from. the
American Civil Liberties Union (ACLU)
about the overcrowded conditions in the
men's section of the jail. On November
9, 1973 the ACLU filed a suit against
the County seeking to correct these
conditions.
- 42a -
The Sheriff's Office began to
consider moving the female prisoners to
a jail in one of the adjoining counties
and eliminating the matron positions.
In late November 1973, the undersheriff,
Charles Sheratt, prepared a memo in
which he determined that the county
would save $18,000 a year by acting on
the proposed changes. Barnes decided
that the county could best alleviate the
overcrowded conditions in the men's jail
by moving the few female prisoners into
a regional facility and moving in the
men. There were sixteen cells in the
women's prison and there were rarely
more than three or four women prisoners
in the prison at any given time. The
County adopted Barnes' recommendation.
The district court determined that
sound economic considerations justified
the County's decision. The Court found
that between 1971 and 1973, the number
of male prisoners processed by the
County jumped from 1,884 to 3,270. An
increase in "weekend" sentencing, by
which low-risk prisoners were allowed to
serve time on weekends, aggravated the
overcrowding. Conditions became so bad
that prisoners were forced to sleep on
- 43a -
the floor.
In light of these conditions, we
cannot dispute the district court's
finding that the abolition of the
Plaintiffs' job resulted from the
legitimate, non-discriminatory purposes
of the defendants. Common sense
dictated that they alleviate the
Overcrowding in the men's’ facility by
eliminating the disproportionately more
expensive women's facility.
B. Denial of Vanderzanden's Request for
Leave of Absence.
In September 1974, Vanderzanden
applied for a leave of absence without
Pay because she had become physically
disabled. Sheriff Barnes denied _ the
request and Vander zanden resigned.
Vanderzanden contends that the defen-
dants denied her leave in retaliation
for her demands for equal pay.
The district court found that, even
if the County had the burden of proving
legitimate reasons for discharging
Vanderzanden, it had met its burden by
showing that Vanderzanden was encouraged
to resign because her superiors justi-
fiably believed that she could no longer
do the job. The record supports’ the
- 44a -
district court's determination.
In 1972 Vanderzanden injured her
shoulder in a fall while leaving work.
As a result, she was absent from work
for fouc months, two and one-half months
of which was unpaid leave.
In August 1973, Vanderzanden, then
56 years old, developed blood clots in
her leg, a problem that she had inter-
mittently since 1966. She exhausted all
her sick and vacation benefits, and
applied for a 90 day unpaid leave of
absence. Sergeant Ramseth told
Vanderzanden that her leave of absence
would not be granted. Ramseth said that
her poor health made it impossible for
her to perform her job’ effectively.
Vander zanden tendered her resigna-
tion.12 At the time of her resigna-
tion, Vanderzanden's doctor would not
permit her to return to work because of
her ill health.
Assuming that Vanderzanden has made
a prima facie showing of retaliation, we
do not find that the district court's
determination that the decision to deny
Vanderzanden leave was justified by
legitimate business reasons is clearly
erroneous. Unfortunate as the County's
- 45a -
decision may have been, it was justified
by the record. Vanderzanden's prolonged
absences from work, her chronic physical
ailments, and inability to perform fully
her job duties justifies the County's
decision.
Vanderzanden presented evidence that
Undersheriff Sheratt was granted a leave
of absence as a means of showing that
sne was unfairly treated. We do not
think that this evidence overcomes’ the
showing made by the defendant. Sheratt
was automatically entitled to take his
paid leave of absence, and returned to
work only after obtaining a release from
his doctor.
C. Personnel Action Forms.
At the time the plaintiffs were
terminated, Sheriff Barnes signed a
written “Personnel Action" form for each
of them. In answer to the question
“would you rehire this employee," the
Sheriff checked "no" on each form. He
checked “yes" on the forms for the two
mMatrons, Holiday and Firth, who were not
Plaintiffs to this suit.
The district court made no express
finding as to whether the Sheriff's
notation constituted a Title VII
- 46a -
violation. It held only that’ the
Plaintiffs did not present sufficient
evidence to prove that they were harmed
by the notation. We find that’ the
Plaintiffs did not establish a prima
facie violation of §704(a), and do not
decide whether the sheriff's action was
harmful to the plaintiff.13
As we have discussed, to establish a
prima facie violation, the plaintiffs
must show that there is a link between
their assertion of their Title VII
rights and the adverse action taken by
the defendants. Miller, 590 F.2d at
320. The plaintiffs have failed to
Gemonstrate such a link here. They
presented no direct evidence that the
Sheriff's notations on the _ personnel
action forms were the result of retalia-
tion for the plaintiffs' request for
equal pay. Furthermore, the plaintiffs
presented no circumstantial evidence
that the sheriff acted in response to
the plaintiffs' equal Pay demands.
Moreover, the plaintiffs never’ con-
fronted the Sheriff with their demands
and at best the Sheriff had only a vague
awareness that matrons in general were
demanding equal pay. After careful
“Sta. =
examination of the record, we can find
no evidence to infer that the Sheriff
knew the plaintiffs, and not Holiday and
Firth, were raising equal pay claims.
Only if there is evidence that’ the
Sheriff actually knew that the plain-
tiffs raised such claims, rather’ than
other matrons, can we infer that the
Sheriff gave negative recommendations to
the plaintiffs and positive recommenda-
tions to the other matrons for vindic-
tive reasons. The plaintiffs presented
no such evidence. Having not shown that
the defendants were aware which matrons
were actively supporting the claim for
equal pay, the plaintiffs have not
proved the necessary link between their
Gemands and the defendants' adverse
action that would establish a _ prima
facie violation of §704(a).
D. Refusal to Rehire Vallance.
For a similar reason, we find that
the plaintiffs did not establish that
the defendants' refusal to rehire
Vallance was a prima facie violation of
§704(a).
On December 26, 1973, after she had
been notified that she would be termi-
nated, Vallance wrote to the Sheriff
- 48a -
requesting a transfer to the newly
created position of police steno-
grapher. Vallance indicated that she
had passed all the necessary civil
service tests for the position. Two
days later, the Sheriff wrote to
Vallance, denying her request and
Stating that the positions would be
filled by somebody else.
On January 15, 1974, Holiday and
Firth made formal written applications
for the police stenographer positions;
the Sheriff hired both that same day.
Because neither had passed the required
Civil service examination at that time,
their appointments were made provisional
Pending completion of the tests. Firth
later failed the examinatiecn and was
terminated. Vallance contends that the
Sheriff's refusal to rehire her was in
retaliation for her equal pay demands.
The district court denied Vallance's
Claim, finding that the Sheriff's
appointments of Holiday and Firth were
within his discretion under Oregon law.
The court noted that Holiday had a good
work record and that Firth had a
Satisfactory one, and that both had more
seniority than Vallance.
- 49a -
We need not dwell long on this
contention. The plaintiffs presented no
direct evidence that the defendant chose
Holiday and Firth over Vallance _ for
vindictive reasons. Nor can we infer
vindictiveness. There is nothing in the
record that shows that defendants were
aware that it was Vallance, and not
Holiday and Firth, who actively sought
higher pay.
Because the plaintiffs have failed
to show a prima facie violation of
§704(a), we need not decide whether the
sheriff's refusal to rehire Vallance was
justified by legitimate business reasons.
Affirmed in part, reversed in part,
and remanded for further proceedings to
afford plaintiffs the opportunity to
establish a claim of sexual discrimina-
tion apart from an equal pay claim.
FOOTNOTES :
1 The matrons' job titles were
periodically readjusted. For the _ sake
of consistency, we use the term "matron"
throughout.
2 Sheriff Barnes supervised
Captain Friese and Sergeant Ramseth.
- 50a -
Friese supervised the persons working in
the corrections division, including the
Matrons and Ramseth. Ramseth's duties
related primarily to the handling of
prisoners and he apparently had limited
authority over the matrons.
3 In its analysis, the district
court did not distinguish between the
deputy sheriffs who worked in the jail,
and their replacements, the corrections
officers. The record shows that’ the
in-jail duties of the deputy sheriffs
and the corrections officers were the
same and thus, we likewise find it
unnecessary to draw a distinction in
comparing their duties to those of the
Matrons. We do note because the deputy
sheriffs must be certified as _ police
officers by the State of Oregon they
possess skill and training that the
mMatrons do not have.
4 The plaintiffs did not sue
under the Equal Pay Act. The Equal Pay
Act did not apply to the government
employees until May 1, 1974. The Fair
Labor Standards Amendments of 1974, Pub.
L. 93-259, §l(a), Apr. 8, 1974, 88 Stat.
55. The plaintiffs" jobs were termi-
nated on January 15, 1974, and _ thus
their claims are cognizable only under
Title VII.
5 In full, 29 U.S.C. §206(d) (1)
(1970) provides:
No employer having employees
Subject to any provisions of
this section shall discriminate
within any establishment in
which such employees are
employed, between employees on
- 5la -
the basis of sex by paying wages
to employees in such establish-
ment at a rate less than the
rate at which he pays wages to
employees of the opposite sex in
such establishment for equal
work on jobs the performance of
which requires equal skill,
effort, and responsibility, and
which are performed under
similar working conditions,
except where such payment is
made pursuant to (i) a seniority
system; (ii) a merit system;
(iii) a system which measures
earnings by quantity or quality
of production; or (iv) a
differential based on any other
factor other than sex: Pro-
vided, that an employer who is
Paying a wage rate differential
in violation of this subsection
shall not, in order to comply
with the - provisions of this
subsection, reduce the wage rate
of any employee.
6 The parties are not in complete
agreement as to importance that should
be assigned to the various statistical
evidence introduced at trial. We agree
with the district court that the average
daily census more accurately reflects
the prison's population. The prison's
yearly census is not nearly as accurate,
because it does not account for the
widely-varying lengths of incarceration
amoung the prisoners.
The Plaintiff also claims that
the average daily population in_ the
women's jail was 3.9 inmates per day,
rather than the 1.8 figure provided by
the defendants and used by the district
- 52a -
court. We have examined both computa-
tions and find that the district court's
choice of figures was not erroneous.
7 This district court found- that
the clerical duties performed by the
Matrons included processing fingerprint
cards and mug shots; filing reports and
mug shots; filling out F.B.I. reports;
keeping mail and medical records;
recording deputy sheriff's activities;
and censoring mail.
8 Mr. BENNETT. Mr. President, I
yield myself 2 minutes.
The PRESIDING OFFICER. — The
amendment will be stated.
The legislative clerk read as
follows: On page 44,: line 15,
immediately after the period,
it is proposed to insert the
following new’ sentence: It
shall not be an unlawful
employment practice under this
title for any employer to
differentiate upon the basis of
sex in determining the amount
of the wages or compensation
paid or to be paid to employees
of such employer if such
differentiation is authorized
by the provisions of section
6 (d) of the Fair Labor
Standards Act of 1938, as
amended (29 U.S.C. 206(d)).
Mr. BENNETT. Mr. President,
after many years of raving by
members of the fair sex in this
country, and after very careful
study by the appropriate
committees of Congress, last
year Congress passed the
so-called Equal Pay Act, which
- 53a -
became effective only yesterday.
By this time, programs have
been established for the
effective adminstration of this
act. Now, when the civil
rights bill is under considera-
tion, in which the word ‘'sex'
has been inserted in many
places, I do not believe
sufficient attention may have
been paid to possible conflicts
between the wholesale insertion
of the word 'sex' in the bill
and in the Equal Pay Act. The
purpose of my amendment is to
provide that in the event of
conflicts, the provisions of
the Equal Pay Act shall not be
nullified.
I understand that the leader-
ship in charge of the bill have
agreed to the amendment as a
proper technical correction of
the bill.
1 & they will confirm” that
understanding, I shall ask that
the amendment be voted on
without asking for the yeas and
nays.
Mr. HUMPHREY. The amendment of
the Senator from Utah is
helpful. I believe it is
needed. I thank him for his
thoughtfulness. The amendment
is fully acceptable.
Mr. DIRKSEN. Mr. President, I
yield myself 1 minute.
We were aware of the conflict
that might develop because the
Equal Pay Act was an amendment
to the Fair Labor Standards
Act. The Fair Labor Standards
Act carries out certain
- 54a -
exceptions.
All that the pending amendment
does is recognize those
exceptions, that are carried in
the basic act. ;
Therefore, this amendment is
necessary, in the interest of
Clarification.
The PRESIDING OFFICER. (Mr.
RIBICOFF in the chair). The
question is on agreeing to the
amendment of the Senator from
Utah.
(Putting the question.)
110 Cong. Rec. 13647 (1964).
9 Assume for example, that an
employer tells a female worker, not
employed at a position that is substan-
tially equal to that performed by a
male, that he would pay her $30 a week
more if she was male. For want of a
male counterpart performing equal work,
such blatant discrimination would not be
prohibited by the Equal Pay Act.
Rinkel, 17 FEP Cases at 226. We find no
indication, however, that the Bennett
Amendment was intended to legalize such
practices under Title VII. Likewise, in
a situation where primarily women are
employed in a type of job that is
comparable but not substantially equal
to that performed by men, an employer is
free under the Equal Pay Act to decrease
the wages of the women solely bacause of
their sex. Such a practice is pro-
hibited by the plain language of §703
and will continue to be under’ our
interpretation of the Bennett Amendment.
10 This guideline, formerly
codified at 29 U.S.C. §1604 7(1) stated
that:
- 55a -
(a) Title VII requires that its
provisions be harmonized with the
Equal Pay Act (section 6(d) of the
Fair Labor Standards Act of 1938, 29
U.S.C. 205(d)) in order to avoid
conflicting interpretations or
requirements with respect to
situations to which both statutes
are applicable. Accordingly, the
Commission interprets section 703(h)
to mean that the standards of equal
pay for equal work set forth in the
Equal Pay Act for determining what
is unlawful discrimination in
compensation are applicable to Title
VII. However, it is the judgment of
the Commission that the employee
coverage of tne prohibition against
discrimination in compensation
because of sex is coextensive with
that of the other prohibitions in
section 703, and is not limited by
section 703(h) to those employees
covered by the Fair Labor Standards
Act.
11 For instance, Sheriff Barnes
testified that he thought the disparity
betweeen the salaries of the matrons and
the deputies should have been less. In
fact, the sheriff had previously
attempted to upgrade the salary of the
matrons.
12 The parties dispute whether
Vanderzanden was “terminated" or "forced
to resign". We find that the character-
ization is immaterial and assume that
Vanderzanden was terminated.
13 The fact that the district
court failed to make an explicit finding
of fact on the existence of a prima
- 56a -
facie violation does not preclude us
from deciding this issue, especially
where the record consists primarily of
documentary evidence. See Magna Weld
.Sales Co. v. Magna Alloys & Research
Pty., 545 F.2d 668, 671 (9th Cir. 1976);
Armstrong v. Collier, 536 F.2d 72, 77
(5th Cir. 1976).
- 57a -
Opinion of the District Court
(Decided September 3, 1976)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALBERTA GUNTHCR, VELENE )
M. VALLANCE, MARION E. _ )
VANDER ZANDEN, YVONNE M.)
HATTON,
Plaintiffs,
Civil No. 74-581
vs. OPINION
THE COUNTY OF WASHING-
TON; SHERIFF WARREN
BARNES, in his capacity
as Sheriff of Washing-
ton County; CAPTAIN —
STAN FRIESE and SERGEANT
CLARENCE RAMSETH, in
their capacities as
Washington County
Police Officers,
Defendants.
el ee eee eee ee ee
Carol A. Hewitt
Lindsay, Nahstoll, Hart,
& Krause
1331 S. W. Broadway
Portland, Oregon 97201,
Attorneys for Plaintiffs.
- 58a -
Lawrence R. Derr
County Counsel
Room 401, Administration Bldg.
150 N. lst Street
Hillsboro, Oregon 97123,
Attorney for Defendants.
SOLOMON, Judge:
The plaintiffs, Alberta Gunther,
Velene M. Vallance, Marion E. Vander
Zanden, and Yvonne M. Hatton, are four
women who worked as matrons at the
Washington County jail. They charged
the County and Sheriff Warren Barnes
with sex discrimination and assert that
the County paid them less than men
jailers for similar work, later fired
them, and refused to~ rehire them,
because they sought equal pay.
Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e et seq., was
amended, effective March 24, 1972, to
include states and local governments as
employers prohibited from discrimina-
tion. The Equal Employment Opportunity
Act of 1972, Pub. L. No. 92-261, §2(1),
86 Stat. 103, amending 42 U.S.C. §2000
(1964) [codified at 42 U.S.C.
§2000e(a)].2 By March 1972, the
Plaintiffs had worked as matrons2? at
- 59a -
the jail for periods varying from six
months to four and a half years.
The Washington County jail lodged
its men prisoners on the second floor
and its women prisoners in 16 or 18
cells on the third floor. The County
employed six full-time matrons: the
Plaintiffs here, and Dorothy Holliday
and Donna Firth, who are not plain-
tiffs. Generally, two matrons worked on
each eight-hour’~ shift; and, on an
average day, there were two women
prisoners in the jail.
The matrons' principal duties were
to process and guard women prisoners and
to transport them to and from court.3
Because there were so few women
prisoners, the matrons spent much of
their time on clerical work. The amount
varied among the matrons from about ten
to seventy-five per cent. 4
In 1972, men prisoners were guarded
by a staff of 13 deputy sheriffs, who
were temporarily assigned, as part of
their * °° .ng, to jail duty for periods
of a x “s to a year. The deputies'
responsib ‘ies and activities were
similar to the matrons', except that the
deputies spent more time with the
- 60a -
prisoners and less time on clerical
work. On an average day, there were
between 50 and 60 men prisoners in the
jail. Therefore, on the average, there
was one guard for every four’ men
prisoners, aS contrasted with three
matrons for every one woman prisoner.
In March 1972, the Washington County
Police Officers' Association (the union)
was formed, and the deputy sheriffs, the
matrons, and other jail employees became
members, the union negotiated its first
contract with the County effective June
1, 1972.
In December 1972, the Washington
County Commissioners, on the recommenda-
tion of Sheriff Barnes, created the
positions of corrections officer and
corrections officer trainee. The
Commissioners' purpose was to free the
time of the deputy sheriffs for patrol
or "road work" outside the jail and also
to professionalize the job of jail
guard. The County asserts that the new
positions were open to women as well as
men, and the matrons do not dispute that
assertion. ;
About the same time, the Commis-
sioners approved increases of about ten
- 6la -
per cent in the salary’ ranges of
matrons, recruits, and deputy sheriffs,
among others, to coordinate their pay
with that of the corrections officers
and trainees. The range increases were
effective February 1, 1973. The old and
new monthly ranges were as follows:
Old New
Deputy Sheriffs $668-853 $736-940
Deputy Sheriff
Recruits 636-736 701-812
Corrections
Officers --- 701-896
Corrections
Officer Trainees --- 668-812
Matrons 476-606 525-668
The Commissioners rejected a
proposal by the Sheriff to increase the
matrons' ranges by about 30 per cent
over their old salaries and about 20 per
cent over their new salaries, on the
grounds that it might be an unfair labor
practice for the County to offer
selective increases to one group of its
union employees outside the collective
bargaining process.
Correction officers, in June 1973,
began to replace deputy sheriffs in the
men's section of the jail. Shortly
- 62a -
thereafter, at a union meeting, plain-
tiff Alberta Gunther asked union
officials to demand the same pay for the
matrons as the new corrections offi-
cers. She was told to research the
matter further.
A day or two later, Stanley Friese,
captain of the jail division, spoke with
Holliday, the most senior matron.
Friese said that, because of the over-
crowding in the men's section, the Sher-
iff was considering whether to board the
women prisoners with another’ county.
Holliday, with Friese's permission, re-
ported this information to the other
matrons. They testified that they in-
terpreted Friese's remarks as a warning:
if they pressed their demands for equal
pay, they might lose their jobs.
- Overcrowding in the men's jail was a
serious problem. Between 1971 and 1973,
the number of men prisoners processed by
the County jumped from 1,884 to 3,280.
Although the number of women prisoners
also increased, there were seldom more
than six women on any one day, and on
some days there were no women prison-
ers. An increase in "weekend" sentenc-
ing, by which low-risk prisoners were
- 63a -
permitted to serve their time on
weekends aggravated the overcrowding.
The jail received unfavorable publicity
after it required some prisoners’ to
Sleep on the floor. The American Civil
Liberties Union investigated complaints
of overcrowding and later filed an
action on behalf of several prisoners.
On November 19, 1973, officials of
the union and the County reviewed the
matrons' demands. Shortly thereafter,
Undersheriff Charles Sherratt prepared a
study which he said showed that the
County could save about $18,000 per year
if it boarded its women prisoners at the
Clackamas County jail and replaced the
six matrons with two and a half police
stenographers. The County Commissioners
on December 18, 1973, adopted the
recommendations and terminated the
matrons as of January 15, 1974.
On December 26, 1973, Vallance
applied for a voluntary demotion to
police stenographer. The Sheriff told
her that the positions were filled. On
January 15, 1974, he provisionally
appointed Holliday and Firth as_ steno-
graphers, but there was no evidence on
when he had offered them the positions.
- 64a -
Neither had passed the typing test, as
Vallance had. Holliday later passed the
typing test, and Firth was’ terminated
when she failed to pass it. Unlike the
four plaintiffs, Holliday and Firth had
kept silent on the equal pay issue.
When the matrons were terminated,
Sheriff Barnes filled out a "Personnel
Action" form for each of them. The form
asked, "Would you be willing to reemploy
[this person] in the future?" On the
forms for Gunther, Hatton, and Vallance,
Sheriff Barnes wrote, "No". For
Holliday and Firth he wrote, "Yes."
In June 1972, Matron Vander Zanden,
then 55, tripped over a sidewalk on her
way home from the jail and _ seriously
injured her right arm and knee. She
missed four months of work and used all
her accumulated sick leave. She asked
for, and received, a six-week leave of
absence without pay.
In July 1973, she developed a blood
clot in her leg and missed work begin-
ning August 9. In September, she again
applied for unpaid leave. Captain
Friese denied the request. She asked
whether the denial meant that she was
being terminated, and Sergeant Clarence
- 65a -
Ramseth told her that he guessed that it
did. Shortly thereafter, she was
allowed to resign for health reasons.
Title VII of the Civil Rights Act of
1964 provides in part:
It shall be an unlawful employ-
ment practice for an employer --
° oe e to discharge any
individual, or otherwise to
discriminate against any
individual with respect to
his compensation . ° .
because of .. . S@X . « eF
or
- « « to limit, segregate,
Or classify his employees .
- »« in any way which would
deprive . . . any individ-
ual of employment oppor-
tunities Or otherwise
adversely affect his status
as an employee, because of
o « « COB ss &
42 U.S.C. §2000e-2(a)
(1964)
Congress added "governments,
governmental agencies, [and] political
subdivisions" to those employers subject
to Title VII, effective March 24, 1972.
Section 2(1) of the Equal Employment
Opportunity Act of 1972, 86 Stat. 103,
42 U.S.C. §2000e(a) (1970 ed., Supp. IV).
The County asserts that Congress
exceeded its powers under the Commerce
- 66a -
Clause when it extended Title VII to
include states and local governments.
In Fitzpatrick v. Bitzer, 44 U.S.L.W.
5120 (U.S. June 28, 1976), the Supreme
Court pointed out that Congress derived
its authority to pass the 1972 Amend-
ments to Title VII from Section 5 of the
Fourteenth Amendment and not the
Commerce Clause. The Court held that,
when the States ratified the Fourteenth
Amendment, they yielded some of their
rights to control their own affairs to
the federal government. One such right,
in those areas where Congress’ was
authorized to act under Section 5 of the
Fourteenth Amendment, was the right of a
State, under the Eleventh Amendment, not
to be sued without its consent by its
own citizens. 44 U.S.L.W. at 5123.
The County also contends that the
1972 Amendments to Title VII unconstitu-
tionally invade rights reserved to the
States by the Tenth Amendment. There is
no merit in this contention. I hold
that Title VII is constitutional as
applied to Washington County.
A ruling on Sheriff Barnes' motion
to dismiss was postponed until the
trial.° I deny the motion to dis-
- 67a -
miss. The Sheriff exerted sufficient
control over the salaries and the
subsequent dismissals of the matrons to
be considered an employer under Title
VII. Nevertheless, I find that’ the
Sheriff is entitled to qualified
immunity because he acted in good faith
and within his official Capacity.
Hutchison v. Lake Oswego School District
No. 7, 519 F.2d 961, 968 (9th Cir.
1975), petition for cert. filed, 44
U.S.L.W. 3285 (U.S. Oct. 10, 1975) (No.
75-568), cross-petition for cert. filed,
44 U.S.L.W. 3446 (U.S. Jan. 10, 1976)
(No. 1049).
The matrons contend that their jobs
were substantially equal to those of the
deputy sheriffs and the corrections
officers. ® The County contends”~ that
there were significant differences
between the men's and women's jobs and
that those differences accounted for the
salary differentials.
The matrons and the County assumed
that men and women prisoners should be
housed separately and that, generally,
men should guard men and women should
guard women. As a result, the matrons
and the men guards worked in separate
- 68a -
guarters and had different workloads.
The men supervised more than ten times
as many prisoners for each guard as the
matrons’7 did. The matrons’~ therefore
devoted much of their time to clerical
chores. The matrons do not dispute that
clerical work is less valuable than
guard work and entitles one to less pay
than guard work.
In the summer and fall of 1973, the
matrons asked for equal pay with the
corrections officers. But they did not
apply to become corrections officers,
even though the jobs were open to them.
The plaintiffs concede that’ they
have the burden of proving that their
jobs were substantially equal to those
of the men guards. Under the Equal Pay
Act of 1963,’ the plaintiffs must
prove unequal pay for ". . . equal work
on jobs . . . [requiring] . . . equal
skill, effort, and responsibility ...
performed under similar working condi-
tions . . ." 29 U.S.C. § 206(4) (1).
Plaintiffs have not met their burden
of proving that the men's and women's
jobs were substantially equal. Even
though the - matrons' jobs may have
required as much skill as those of the
- 69a -
men guards, the matrons' jobs did not
require equal effort or equal respon-
sibility.
The matrons contend, however, that
even if the men's jobs were more
difficult, the differences in pay were
much greater than the differences in
difficulty of the work. The matrons
contend that some of the differences in
pay can be explained only by the
existence of sex discrimination.
The case of Albermarle Paper Co. v.
Moody, 422 U.S. 405 (1975), on which the
matrons rely, is not in point. There
the Supreme Court noted that the
District Court had held that the
employer ". . . had ‘strictly segre-
gated' the plant's departmental ‘lines
of progression’ . . . reserving the
higher paying and more skilled lines for
whites. ° o* 422 U.S. at 409.
Nevertheless, the District Court refused
to award back pay. The Supreme Court
held that, given a finding of unlawful
discrimination, back pay ". . . should
be denied only for reasons which, if
applied generally, would not frustrate
the central statutory purposes of
eradicating discrimination throughout
- 10a -
the economy and making persons whole for
injuries suffered through past dis-
crimination." 442 U.S. at 421 (footnote
omitted).
Here the basis for an award of back
pay--finding of unlawful discrimina-
tion--is lacking.
If the jobs are substantially
dissimilar, that is the end of the
inquiry. See 29 C.F.R. §800.120
(1965). Under these circumstances, the
Overpayment of corrections officers or
the underpayment of matrons are not
matters which I can either explore or
correct. The union may not have been as
aggressive as it should have been in
Supporting tthe matrons' demands’ for
equal pay, but that dereliction, if it
waS one, cannot be charged to the
County. There was no allegation here of
a conspiracy between the union and the
County.
The plaintiffs also contend that the
County dismissed them, and refused to
rehire them, because they demanded equal
pay.
No employer, private or govern-
mental, should be prevented from
eliminating an unnecessary position
- 1a -
merely because all the holders of that
position are women--provided there are
good, nondiscriminatory reasons why they
are all women and why the position
should be eliminated.
The County, its jail officers, and
its women prisoners shared a legitimate
concern that at least some of those who
guarded the women prisoners be
women, 2 Because the staff was so
small, it was probable that all or
almost all those who guarded women would
be women.
The County's objectives in eliminat-
ing the matrons' positions were to save
money and make better use of the jail
space. The existing arrangement made no
sense. Each man guarded about four
prisoners; each matron guarded = about
one-third of a prisoner. The men's
section often overflowed, while the
women's section averaged ten or more
empty cells. The County's objectives
were both reasonable and commendable.
The Sheriff's appointments of
Holliday and , Firth, rather than
Vallance, as police stenographers were
within his discretion. See ORS §§
204.601(2) (1953) and 204.635(2)
- 72a -
(1963). Holliday had a good work record
and Firth a satisfactory one. Both had
more seniority than Vallance.
The plaintiffs also assert that they
were prejudiced in their attempts to
regain employment with the County
because of the Sheriff's notation in the
termination order against rehiring
them. The matrons did not_ present
sufficient evidence to prove that they
were harmed by that notation.
Mrs. Vander Zanden contends that she
was coerced into resigning after the
County denied her request for an unpaid
medical leave. The evidence is un-
disputed that Vander Zanden was a good
worker when she was healthy; 10 but, as
she noted on her application for
employment as a matron, she had ex-
perienced medical problems with her legs
since at least 1966.
In September 1973, when she asked
for a leave of absence, she had already
missed several weeks' work because of a
blood clot in her leg. She was then 56,
and had spoken of retirement. According
to the official job description, the
work of a matron required ". . . good
physical condition and physical strength
= 738 -
to handle unruly inmates."
Even if the County had the burden of
proving legitimate, nondiscriminatory
reasons for discharging Mrs. Vander
Zanden, cf. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 et seq. (1973),
in my view the County met its burden.
Mrs. Vander Zanden was encouraged to
resign not because she asked for equal
pay, but because her superiors justifi-
ably believed that she could no longer
do the job.
Plaintiffs' action should be
dismissed. No costs or attorneys' fees.
This opinion shall constitute
findings of fact and conclusions of law
pursuant to Fed R. Civ. P. 52(a).
FOOTNOTES
1 The legislative history is
discussed in Fitzpatrick v. Bitzer, 44
U.S.L.W. 5120, 5121 n.2 (U.S. June 28,
1976).
2 Although the matrons' job
titles and duties were’ periodically
adjusted, the term "matron" is here used
for the sake of consistency.
3 An official job description
gave these examples, among others, of
- 74a -
the matrons' duties: register, assign,
examine, and instruct new prisoners;
dispense minor medication; supervise
visitors; censor mail; inspect living
quarters and supervise light housekeep-
ing; transport prisoners to and from
court or for medical treatment; attend
mental patients at hearings; and test
sobriety with a breathalyzer. The
matrons were also required to sit in on
interviews and to maintain ". . . a
constant security watch ...."
4 These clerical activities
included: processing fingerprint cards
and mug shots; filing reports and mug
shots; filling out F.B.I. reports;
pie er mail and medical records;
recording deputy sheriffs' activities;
and censoring mail.
I Captain Friese and Sergeant
Ramseth were dismissed as defendants by
stipulation.
6 The matrons filed this action
under the Equal Pay Act of 1963, 29
U.S.C. §206(d), as well as Title VII.
Although the constitutionality of the
Equal Pay Act, as applied to States and
local governments, is now in doubt, see
National League of Cities v. Usery, 44
U.S.L.W. 1974 (U.S. June 24, 1976), I
need not reach that issue because the
Equal Pay Act did not apply to govern-
mental employers until May 1, 1974. The
matrons were terminated January 15, 1974.
7 The Equal Pay Act of 1963, 29
U.S.C. §206(d), and Title VII are
interlocked, see 42 U.S.C. § 200e-2(h),
and the sex discrimination prohibitions
of Title VII must be construed in the
- 75a -
same manner as the Equal Pay Act.
Schultz v. Wheaton Glass Co., 421 F.2d
’ d Cir.), cert. denied, 398
U.S. 905 (1970). Even if the Equal Pay
Act is unconstitutional as applied to
States and local governments, the
precedents under it are useful for Title
VII purposes.
8 Section 2000e-2(e)(1) of Title
42, U.S.C., permits an employer to hire
on the basis of sex where sex is ". .
a bona fide occupational qualification
reasonably necessary to the normal
operation of that particular business or
enterprise...
The County contended that sex
was a bona fide occupational qualifica-
tion for at least some of the matrons'
jobs, and the matrons did not dispute
this contention.
9 Under Oregon law, a woman must
be present “when a_ female _ prisoner
requires a search or at any time during
confinement that a female prisoner's
cell needs to be entered", ORS §
169.075(3) (1973), or "“{w)henever any
woman or girl is interrogated with
reference to the commission of any
sexual crime . . . whether .. .
committed by her or by some. other
person", ORS § 136.345. And: "Whenever
» « « the sheriff of any county .. .
convey[s] any female to any of the
penal, reformatory or eleemosynary
institutions of this state, the sheriff
shall cause such person to be accom-
panied by a female attendant to the
place of confinement." ORS § 137.360(2).
10 For example, Captain Friese
- 76a -
wrote on a 1972 merit rating: "Has not
been in the best of health & is not a
fast worker. However she works hard &
is a dependable employee. Does her best
at whatever she does & does not
complain."
-. ea. =
Order of the Court of Appeals
Denying Petition for Rehearing
(Filed May 1, 1980)
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERTA GUNTHER, VELENE
M. VALLANCE, MARION E.
VANDER ZANDEN, YVONNE M.
HATTON,
Plaintiffs- No. 76-3448
Appellants,
ORDER
vs.
THE COUNTY OF WASHING-
TON: SHERIFF WARREN
BARNES, in his capacity
as Sheriff of Washington
County; CAPTAIN STAN
FRIESE and SERGEANT
CLARENCE RAMSETH, in
their capacities as
Washington County Police
Officers,
Defendants-
Appellants.
me ee ee ee ee ee ee ee ee eee ee
Appeal from the
United States District Court
for the District of Oregon
Before: MERRILL and TANG, Circuit Judges
and TAYLOR,* District Judge.
*Honorable Fred M. Taylor, Senior
United States District Judge for’ the
District of Idaho, sitting by designa-
tion.
- 78a -
TANG, Circuit Judge:
The panel as constituted above has
voted to deny the petition for rehearing
and to reject the suggestion for
rehearing en banc.
The full court has been advised of
the suggestion for rehearing en banc,
and no judge of the court has requested
a vote on the suggestion for rehearing
en banc. Fed. R. App. P. 35(b).
The Supplemental Opinion on Denial
of Rehearing is ordered filed and the
petition for rehearing is hereby denied
and the suggestion for rehearing en banc
is rejected.
- 198 -
Equal Pay Act
29 U.S.C. § 206(d) (1)
(d)(1) No employer having employees
Subject to any provisions of this
section shall discriminate, within any
establishment in which such employees
are employed, between employees on the
basis of sex by paying wages to employ-
ees in such establishment at a rate less
than the rate at which he pays wages to
employees of the opposite sex in such
establishment for equal work on jobs the
performance of which requires equal
skill, effort, and responsibility, and
which are performed under similar
working conditions, except where’ such
payment is made pursuant to (i) a
seniority system; (ii) a merit system;
(iii) a system which measures earnings
by quantify or quality of production; or
(iv) a differential based on any other
factor other than sex: Provided, That an
employer who is paying a wage rate
differential in violation of this
subsection shall not, in order to comply
with the provisions of this subsection,
reduce the wage rate of any employee.
- 80a -
Title VII of the
Civil Rights Act of 1964
42 U.S.C. §2000e-2(a) , (h)
(a) It shall be an unlawful
employment practice for an employer-
(1) to fail or refuse to hire
or discharge any individual, or
otherwise to discriminate against
any individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of
such individual's race, color,
religion, sex or national origin; or
(h) Notwithstanding any other
provision of this title, it shall not be
an uniawful employment practice for an
employer’ to apply different standards of
compensation, or different terms,
conditions, or privileges of employment
pursuant to a bona fide seniority or
merit system, or a system which measures
earnings by quantity or quality of
production or to employees who work in
different locations, provided that such
differences are not the result of an
intention to discriminate because of
race, color, religion, sex, or national
Origin, mor ,shall it be an unlawful
- 8la -
employment practice for an employer to
give and to act upon the results of any
professionally developed ability test
provided that such test, its adminstra-
tion or action upon the results is not
designed, intended or used to dis-
criminate because of race, color,
religion, sex or national origin. It
shall not be an unlawful employment
practice under this title for any
employer to differentiate upon the basis
of sex in determining the amount of the
wages or compensation paid or to be paid
to employees of such employer if such
differentiation is authorized by the
provisions of section 6(d) of the Fair
Labor Standards Act of 1938, as amended
(29 U.S.C. 206(d)).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.