Opposition — County of Washington v. Gunther

80-429

Supreme Court,

FILE

2

No. A-63 ocr

ICHAEL RODAK, J

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.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

—

BRIEF IN OPPOSITION

CAROL A. HEWITT

RICK T. HASELTON

LINDSAY, HART, NEIL & WEIGLER

700 Columbia Square

111 S.W. Columbia

Portland, Oregon 97201

(503) 226-1191

Attorney for Respondents

-i-

QUESTION PRESENTED FOR REVIEW

Are claims of intentional gender-

based wage discrimination, which do not

meet the equal work standard of the Equal

Pay Act, 29 U.S.C. § 206(d), actionable

under Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e-1

to 2000e-17?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .

TABLE OF CONTENTS

TABLE OF AUTHORITIES.

STATEMENT OF THE CASE .

REASONS FOR DENYING THE WRIT.

I. THE NINTH CIRCUIT'S

HOLDING DOES NOT CONFLICT

WITH DECISIONS OF OTHER

COURTS OF APPEAL .

II. THE NINTH CIRCUIT'S

HOLDING IS CONSISTENT WITH

THE DECISIONS OF THIS COURT.

III. THE COURT OF APPEALS

CORRECTLY CONSTRUED

TITLE VII.

CONCLUSION.

1ii

13

20

24

33

-iii-

TABLE OF AUTHORITIES

Alexander v. Gardner-Denver

Co., 415 U.S. 36, 48-49

& n.9 (1974)

Ammons v. Zia Co., 448 F.2d 117

(10th Cir. 1971)

Calage University of Tennessee,

544 F.2d 297 (6th Cir.

1977).

DiSalvo v. Chamber of Commerce,

568 F.2d 593 (8th Cir.

SPIO). 2 ce 8

General Electric Co. v. Gilbert,

429 U.S. 125 (1976).

Griggs v. Duke Power Co., 401

U.S. 424, 433-34 (1971).

Page

11,24

9,14,18

9,14,18

- 9,14,18

10,20-

21,31

31

-iv-

Gunther v. Washington County,

623 F.2d 1303 (9th Cir.

Bs 6 eo ee we eee ws ee yg Be

IUE v.Westinghouse Electric Corp.,

23 F.E.P. Cases 588 (3d Cir.

kt Ny ee eee ee a ie ere,

26,28

Laffey v. Northwest Airlines, Inc.,

567 F.2d 429 (D.C. Cir. 1976),

cert. denied, 434 U.S. 1086

CAWTO? wc 00 6 6s oe ks 3 ee

15,18

Lemons v. City and County

of Denver, 620 F.2d 228

(10th Cir. 1980)... .. 9,16,17

Manhart v. City of Los

Angeles Dept. of Power

and Water, 553 F.2d 581

S90 (9th Cir. 1977). . . «2 2 « 22

-V-

Orr v. MacNeill and Son, 511

F.2d 166 (5th Cir. 1975),

cert. denied, 423 U.S.

S65 (21975) . « « + « «© « « « 9,834,438

Radzanower v. Touche, Ross &

Co., 426 U.S. 148, 153

RN ie << a rrr

Stastny v. Southern Bell

Telephone & Telegraph Co.,

F.2d (4th Cir.

July 28, 1980); 458 F.Supp.

314 (W.D.N.C. 1978). . . . 16,17, 18

STATUTES

29 U.S.C. § 206(d)(1) (1976). . . . 4,27

42 U.S.C. §§ 2000e-1--2000e-17

Teer e.6 Se M8 ee eee 4

42 U.S.C. § 2000e-2(a). . . . . . . 25=26

42 U.S.C. § 2000e-2(h). . . .... 6,26

-vi-

MISCELLANEOUS

29 C.F.R. § 1604.7.

29 C.F.R. § 2604.8.

110 Cong. Rec. 13647 (1964)

30 Fed. Reg. 14928 (1965)

» 31-32

30

29

- 31-32

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.

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

STATEMENT OF THE CASE

Respondents Alberta Gunther,

Velene Vallence, Marion Vander Zanden

2

and Yvonne Hatton were jail matrons

employed by Washington County, Oregon.

As matrons, their principal responsibil-

ities were to process and guard female

prisoners. On occasion, respondents

transported prisoners, assisted in arrests,

and processed records. They also performed

duties relating to male inmates, including

booking them in, taking mug shots, and

fingerprinting.

Respondents' male counterparts

in the jail performed essentially the

same functions as matrons, but only with

respect to male prisoners. Until June

1973, respondents' male counterparts were

deputy sheriffs and deputy sheriff recruits

who were assigned to the jail on a tem-

porary rotating basis. Deputies were

paid between $668 and $853 per month,

and recruits received monthly salaries

3

ranging from $636 to $736, while the

respondents were paid from $476 to $606

per month for their work. (Dist. Ct.

Opinion at 4.)

Beginning in June 1973, deputies

and recruits were phased out of jail duties

and replaced by "corrections officers,"

a newly created position ostensibly open

to both men and women. At that time

corrections officers' monthly salaries

ranged from $701 to $896, corrections

officer trainees salaries ranged from

$668 to $812 and matrons were paid from

$525 to $668 per month.

In the spring and summer of

1973, the respondent matrons unsuccess-

fully pressed requests for equal pay with

the Washington County Police Officers

Association, the bargaining unit for

County jail employees. A few months later,

4

Washington County closed the women's jail,

boarded out its female prisoners in an

adjoining county's facilities, and termi-

nated the respondent matrons' jobs. Two

other matrons who had not sought equal

pay were transferred to other positions

within the jails. At the time of respon-

dents' discharge, the defendant sheriff

completed personnel forms on which he

stated that respondents should not be

rehired in other capacities. The respon-

dents' subsequent efforts to secure re-

employment with the County were unsuccessful.

The respondents then filed this

action under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C.

§§ 2000e-1-- 2000e-17 (1976) and the Equal

Pay Act, 29 U.S.C. § 206(d)(1) (1976).

They alleged generally that the defendant

County and officers had denied them equal

5

pay for substantially equal work, that

even if their work was not the substantial

equivalent of that performed by the deputy

sheriffs and corrections officers, some

element of the disparity in compensation

was solely attributable to discrimination

on the basis of sex, and that the defen-

dants had terminated and refused to rehire

them in retaliation for their equal pay

requests.

The district court entered judg-

ment for the defendants. The court found

that the matrons' work was not substantially

equal to that performed by deputies and

corrections officers and concluded that

this resolution of the equal pay issue

precluded further consideration of the

alternative discriminatory compensation

claim. The trial court also rejected

respondents' retaliatory discharge claims.

6

The Court of Appeals for the

Ninth Circuit affirmed the district court's

disposition of the equal work and retalia-

tory discharge questions as not clearly

erroneous. The court held, however, that

the Equal Pay Act's equal work standard

did not govern respondents' Title VII

claim that differences in the compensation

of male and female corrections personnel

were, at least in part, attributable to

sex discrimination. Gunther v. Washington

County, 623 F.2d 1303 (9th Cir. 1979).

The panel found that under the Bennett

Amendment, 42 U.S.C. § 2000e-2(h), the

Equal Pay Act's four affirmative defenses

were incorporated into Title VII, but

its equal pay formulation was not adopted

as the controlling substantive standard

for all wage discrimination claims under

the Civil Rights Act. 623 F.2d at 1311-13,

7

1317-21. Accordingly, while equal pay

claims under Title VII or the Equal Pay

Act are tested against identical criteria,

Title VII's broad remedial mandate affords

relief for discriminatory compensation,

even when claimants cannot establish sub-

stantial equality of employment. The

court instructed the district court on

remand to consider evidence of intentional

sex discrimination in fixing the matrons'

compensation.

The defendant County subsequently

petitioned for rehearing. The appellate

panel, in denying that petition, filed a

supplemental opinion which comprehensively

analyzed the interrelationship of the

Equal Pay Act and Title VII. The court

emphasized that it was not substituting

a “comparable” work test for the "equal"

8

work standard, and that a Title VII plain-

tiff could not establish a prima facia

case solely by alleging that her job re-

quirements were comparable to those of

Similarly situated males. 623 F.2d at

1321. The court of appeals simply recog-

nized a right of recovery under Title VII

for claimants who demonstrate that they

have been undercompensated because of

intentional gender-based discrimination.

REASONS FOR DENYING THE WRIT

The Ninth Circuit's holding

does not conflict with decisions of other

courts of appeal. Only one other appellate

court, the Third Circuit, has squarely

considered whether claims of intentional

discrimination in compensation, which do

not allege substantial equality of work,

are cognizable under Title VII. That

9

court, citing the Gunther opinion favor-

ably, resolved the issue consistly with

the Ninth Circuit's holding. IUE v. West-

inghouse Electric Corp., 23 F.E.P. Cases

588 (3d Cir. 1980). Allegedly conflicting

decisions cited by the petitioners are,

in fact, distinguishable from, and recon-

Cilable with, Gunther. In Lemons v. City

and County of Denver, 620 F.2d 228 (10th

Cir. 1980), the court rejected a comparable

work theory, a concept neither raised nor

endorsed in Gunther. Petitioners also

rely upon a number of cases in which

plaintiffs raised conventional equal pay

claims. In those instances, the courts

1 DiSalvo v. Chamber of Commerce, 568

F.2d 593 (8th Cir. 1973); Laffey v. North-

west Airlines, Inc., 567 F.2d 429 (D.C.

Cir. 1976), cert. denied, 434 U.S. 1086

(1978); Calage University of Tennessee,

544 F.2d 297 (6th Cir. 1977); Orr v.

MacNeill and Son, 511 F.2d 166 (5th Cir.

1975), cert. denied, 423 U.S. 865 (1975);

Ammons v. Zia Co., 448 F.2d 117 (10th

Cir. 1971).

10

had no occasion to consider whether claims

of intentional pay discrimination between

unegual jobs are cognizable under Title VII.

Nor does the Ninth Circuit's

holding conflict with applicable decisions

of this Court. In General Electric Co. v.

Gilbert, 429 U.S. 125 (1976), this Court

held that interpretations of the Equal

Pay Act are applicable to Title VII claims

when the coverage of the statutes inter-

sects. But the Court did not limit

Title VII's remedies for discriminatory

compensation claims to those defined by

the Equal Pay Act. Accordingly, while

the Gunther panel followed Gilbert's

teaching, it could, consistently, recog-

nize a cause of action for intentional

discrimination under Title VII.

This Court's decisions endors-

ing the in pari materia principle of

11

statutory construction do not apply here.

Title VII, as construed by the Ninth Cir-

cuit, did not alter the sccve of the Equal

Pay Act; rather, it created remedies for

discriminatory compensation in situations

which are different from those addressed

by the Equal Pay Act. That construction

is consistent with the Court's direction

that employment discrimination provisions,

because of their broad remedial character,

are to be regarded as complementary and

supplementary. Alexander v. Gardner-

Denver Co., 415 U.S. 36, 48-49 & n.9 (1974).

The Court of Appeal's holding

was correct. Only the Third and Ninth

Circuits have considered whether Title VII

affords a remedy for intentional wage

discrimination when equality of work cannot

be established. Both courts, after compre-

hensive, thoughtful consideration of

12

legislative and regulatory materials,

concluded that Title VII provides such

relief. No court has addressed, much

less refuted, the reasoning of these

opinions.

Finally, petitioners exaggerate,

or perhaps misapprehend, the significance

of the Ninth Circuit's holding. The court

did not, as petitioners imply, endorse a

concept of comparable work in Title VII

wage discrimination actions. Indeed,

the court explicitly stated that allega-

tions of comparable work would not state

a prima facia case under Title VII, and

the issue of comparable work was never

asserted by the plaintiffs either at trial

or on appeal. The ruling below was quite

limited: plaintiffs who establish that

they have received lower wages because

of intentional gender-based discrimination

13

are entitled to recover under Title VII.

It is on this basis that respondents

respectfully request the Court to consider

the merits of the petition.

tT. THE NINTH CIRCUIT'S HOLDING

DOES NOT CONFLICT WITH DECISIONS

OF OTHER COURTS OF APPEAL.

Petitioners contend that the

Ninth Circuit's decision in this case is

contrary to the law of five other circuits.

(Pet. 11-16) Close examination of the

cases, however, shows this inter-circuit

"conflict" to be illusive, not real.

Only the Third Circuit has addressed the

questions considered in Gunther, and that

court's resolution of those issues para-

lleled the Ninth Circuit's.

Five of the ostensibly conflict-

ing cases which petitioners cite involved

conventional equal pay claims brought

under Title VII. DiSalvo v. Chamber of

14

Commerce, 568 F.2d 593 (8th Cir. 1973);

Laffey v. Northwest Airlines, Inc., 567

F.2d 429 (D.C. Cir. 1976), cert. denied,

434 U.S. 1086 (1978); Calage University

of Tennessee, 544 F.2d 297 (6th Cir. 1977);

Orr v. MacNeill and Son, 511 F.2d 166

(Sth Cir. 1975), cert. denied, 423 U.S.

865 (1975); Ammons v. Zia Co., 448 F.2d

117 (10th Cir. 1971). The courts in these

cases implied in dicta that Title VII

plaintiffs must meet the Equal Pay Act's

requirements if they are to prevail in

wage discrimination actions. These courts,

however, had no need to consider--and

did not consider--whether a wage discrim-

ination claim based on a theory other

than equal pay must satisfy the standards

of the Equal Pay Act. Significantly,

the DiSalvo, Callage, Orr, and Amons

Lo

panels did not even address the relation-

ship between Title VII and the Equal Pay

Act under the Bennett Amendment, the crucial

element of the Ninth Circuit's analysis.

Such ambiguous and poorly-considered dicta

do not reflect a substantial or direct

conflict among the courts of appeal.

Fundamental inter-circuit con-

flict, if any, must then be gleaned from

the four decisions in which courts of

appeal have considered whether wage dis-

crimination claims that do not satisfy

the Equal Pay Act's equal work criterion

are cognizable under Title VII: Gunther;

IVE v. Westinghouse Electric Corp., 23

2 The court in Laffey v. Northwest

Airlines, supra, construed the Bennett

Amendment as mandating the application

of the same standards "in the relatively

small area in which [the Equal Pay Act

and Title VII] are congruent." 567 F.2d

at 446. The Ninth Circuit endorsed this

approach in Gunther.

16

FEP Cases 588 (3d Cir. 1980); Lemons v.

City and County of Denver, 620 F.2d 228

(10th Cir. 1980), petition for cert. filed,

49 U.S.L.W. 3031 (U.S. July 18, 1980)

(No. 80-82); and Stastny v. Southern Bell

Telephone & Telegraph Co., F.2d

(4th Cir. July 28, 1980). IUE v. Westing-

house Electric Corp., as petitioners concede,

is consistent with Gunther. So the quest

for conflict must focus on Lemons and

Stastny.

The plaintiff nurses in Lemons

did not allege the city had intentionally

discriminated between its male and female

employees. Instead, they sought relief

under a comparable work theory, asserting

that the city's classification and pay

plan perpetuated historical gender-related

inequities in compensation by fixing the

17

compensation of public employees by refer-

ence to the pay for like work in the com-

munity. The plaintiffs argued that their

positions should be classified and their

wages fixed, not by comparison with other

nurses in the community, but by reference

to non-nursing administrative positions

within the city. The Tenth Circuit rejected

this comparable work approach.

Respondents in this case did

not assert a comparable work concept.

Nor did the Ninth Circuit's holding

endorse such an approach. Instead, the

court ruled that intentional wage discrim-

ination is actionable under Title VII, a

question not before the Lemons panel.

There is no conflict.

The significance of Stastny v.

Southern Bell is less certain. That case

has many of the hallmarks of the equal

18

pay-based decisions discussed above; >

indeed, Judge McMillan's opinion for the

district court includes a heading titled

"Back pay on account of failure to pay

women equally for equal work." 458

F.Supp. 314, 352 (W.D.N.C. 1978). How-

ever, the district court opinion also

described willfull and pervasive discrim-

ination by the defendant. It is unclear

whether plaintiffs asserted intentional

discrimination as a basis for recovery,

independent of their equal pay claims.

Consequently, it is unclear from the

Fourth Circuit's summary treatment of

3 DiSalvo v. Chamber of Commerce, 568

F.2d 593 (8th Cir. 1973); Laffey v. North-

west Airlines, Inc., 567 F.2d 429 (D.C.

Cir. 1976), cert. denied, 434 U.S. 1086

(1978); Calage University of Tennessee,

544 F.2d 297 (6th Cir. (1977); Orr v.

MacNeill and Son, 511 *.2d 166 (5th Cir.

1975), cert. denied, 423 U.S. 865 (1975);

Ammons v. Zia Co., 448 F.2d 117 (10th

Cif. Be?a).

-19-

the individual plaintiffs' wage claims

whether the court rejected intentional

discrimination as a separate basis for

recovery or simply held that the plain-

tiffs had not established the requisite

equality of work for an equal pay claim

under Title VII. Any conflict with

Gunther is, at most, implicit.

It is striking that although

Lemons was decided after the original

opinion in Gunther, and Stastny after

the issuance of the supplemental opinion,

panels in neither case referred to the

Ninth Circuit's holding. This is signif-

icant in two respects. First, it may

indicate that the Fourth and Tenth Circuits

viewed their cases as so distinguishable

from Gunther that they perceived no con-

flict. Conversely, it may show that

neither of those courts was aware of the

20

Ninth Circuit's reasoning and therefore

did not have the benefit of it. If so,

even if there is true conflict enone the

courts of appeal, the Fourth and Tenth

Circuits should be given an opportunity

to reconsider their positions in light

of the comprehensive analysis presented

in Gunther and IUE v. Westinghouse Elec-

tric Corp. Such reconsideration might

well preclude the need for review by this

Court.

II. THE NINTH CIRCUIT'S HOLDING IS

CONSISTENT WITH THE DECISIONS

OF THIS COURT.

Petitioners contend that the

holding below conflicts with General Elec-

tric Co. v. Gilbert, 429 U.S. 125 (1976),

and with other decisions of the Court in

applying the in pari materia canon of

statutory construction. This contention,

like petitioners' allegations of conflict

21

among the courts of appeals, reflects a

fundamental misunderstanding of the nature

of the Ninth Circuit's ruling. In General

Electric Co. v. Gilbert, the Court found

that denial of disability benefits to

female employees who were absent from

work as a result of pregnancy did not

violate Title VII because that denial

was “based on a factor other than sex,"

an affirmative defense under section

6(d)(1) of the Equal Pay Act, 29 U.S.C.

§ 206(d)(1), incorporated into Title VII

through the Bennett Amendment. The Court

did not, however, hold that, in addition

to incorporating the Equal Pay Act's

affirmative defenses under Title VII,

the Bennett Amendment also limits

Title VII wage discrimination actions to

those satisfying the Equal Pay Act's

equal work requirements. Gilbert does

22

not compel such a broad construction of

the Bennett Amendment.

The Gunther panel, consistent

with Gilbert, read the Bennett Amendment

as incorporating affirmative defenses

under the Equal Pay Act into Title VII.

623 F.2d at 1312. Accord, Manhart v.

City of Los Angeles Dept. of Power and

Water, 553 F.2d 581 590 (9th Cir. 1977).

The court further emphasized, again con-

Sistent with Gilbert, that the Equal Pay

Act and Title VII should be construed

harmoniously when their coverage overlaps;

equal pay claims under either provision

are to be tested against the same standards.

623 F.2d at 1313, 1321. The Ninth Cir-

cuit's construction of Title VII and the

Bennett Amendment was not, then, con-

trary to Gilbert. The Court of Appeals,

in recognizing a separate cause of action

23

for intentional wage discrimination under

Title VII, decided an issue that this

Court had neither considered nor resolved.

Petitioners' analysis regarding

in pari materia construction is similarly

flawed. That principal of statutory inter-

pretation is triggered only when broad

application of a general statute would

alter or nullify the effect of a more

specific provision. Radzanower v. Touche,

Ross & Co., 426 U.S. 148, 153 (1976).

Here, the Ninth Circuit's interpretation

of Title VII did not affect the applica-

tion of the Equal Pay Act. Contrary to

petitioners' assertion (Pet. 21-23), the

court did not effectively repeal the Equal

Pay Act's equal work standard by recogniz-

ing a comparable work standard for equal

pay actions under Title VII. The court

explicitly disavowed that result. The

24

Ninth Circuit preserved the equal work

requirement, while construing Title VII

as providing supplemental relief for

certain non-equal pay related claims.

This expansive reading of Title VII is

consistent with this Court's direction

that remedies for discrimination should

be construed as complementary. Alex-

ander v. Gardner-Denver Co., 415 U.S.

36, 47 (1974). Principles of in pari

materia do not apply.

III. THE COURT OF APPEALS CORRECTLY

CONSTRUED TITLE VII.

The most compelling validation

of the Ninth Circuit's reading of

Title VII is the result petitioners'

alternative, contrary, construction would

sanction. If, as petitioners suggest,

Title VII's coverage of pay claims is

limited to situations where the plaintiff

can show equal work by men, employers

25

would be free to establish pay rates for

jobs based solely on the gender of the

incumbents, without regard to the nature

of the work. As the Third Circuit obser-

ved, Title VII bars this type of inten-

tional wage discrimination on the basis

of race, color, religion, or national

4

origin. IUE v. Westinghouse Electric

4 Section 703(a), 42 U.S.C. §2000e-2(a)

provides:

(a) It shall be an unlawful employ-

ment practice for an employer--

(1) to fail or refuse to hire or

to 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

(2) to limit, segregate, or

Classify his employees or appli-

cants for employment in any

way which would deprive or tend

26

Corp., 23 FEP Cases at 592. The essen-

tial inquiry in interpreting Title VII,

particularly the Bennett Amendment, is

whether Congress intended to insulate

such intentional discrimination against

women.

The Bennett Amendment, 42 USC

§ 2000e-2(h), provides:

It shall not be an unlawful employ-

ment practice under this subchapter

for any employer to differentiate

upon the basis of sex in determin-

ing the amount of compensation paid

or to be paid to employees of such

employer if such differentiation is

authorized by the provisions of [the

Equal Pay Act}.

Discrimination in compensating employees

of the opposite sex who perform equal

(cont'd)

to deprive any individual of employ-

ment opportunities or otherwise ad-

versely affect his status as an

employee, because of such individual's

race, color, religion, sex, or national

origin.

27

work is “authorized" by the Equal Pay Act

only if it is attributable to seniority,

merit, output, or some factor other than

sex. 29 U.S.C. § 206(d)(1).> Nothing

- 29 U.S.C. § 206(d) provides in pert-

inent part:

(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 employees 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 per-

formed under similar working con-

ditions, 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:

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.

; 28

in the Equal Pay Act authorizes--in its

clearest sense, positively sanctions--

discrimination which does not fall within

its terms. The authorization language

of the Bennett Amendment reflects a leg-

islative intent to incorporate the Equal

Pay Act's four affirmative defenses,

not to adopt equal work-equal pay as the .

sole measure of wage discrimination under

Title VII.

Legislative commentary concern-

ing the Bennett Amendment is, at best,

murky. As the Third Circuit noted in

IUE v. Westinghouse Electric Corp., "an

ingenious and intelligent mind may find

support in all of [the legislative

materials]" for either of the contending

constructions. 23 F.E.P. Cases at 594.

And petitioners have demonstrated great

ingenuity.

29

The most plausible reading of

the limited legislative history is that

in areas of overlap between Title VII

and the Equal Pay Act--equal pay actions

under Title VII--Congress intended the

Equal Pay Act's affirmative defenses,

with corresponding judicial and adminis-

trative interpretations, to apply. This

construction, adopted by the Third and

Ninth Circuits, finds support in Senator

Dirksen's observation that "[a]ll that

the pending amendment does is recognize

these exceptions [under the Equal Pay

Act], that are carried in the basic Act,"

and in Senator Bennett's statement that

the amendment was designed "to provide

in the event of conflicts, the provisions

of the Equal Pay Act shall not be nulli-

fied." 110 Cong. Rec. 13647 (1964).

Nothing in the contemporaneous legislative

30

history expresses a clear congressional

desire to treat intentional gender-related

wage discrimination differently than

intentional discrimination on other bases.

If, as petitioner contends, Congress had

intended to so substantially qualify the

remedial mandate of the Civil Rights Act,

it would have done so explicitly.

The Ninth Circuit's interpreta-

tion of the Bennett Amendment is also

consistent with applicable administrative

regulations. 29 C.F.R. § 1604.8, issued

by the Equal Employment Opportunity Com-

mission in 1972, provides in relevant

part as follows:

Relationship of Title VII to the

Equal Pay Act.

(a) The employee coverage of the

prohibitions against discrimination

based on sex contained in Title VII

is coextensive with that of the other

prohibitions contained in Title VII

and is not limited by Section 703(h)

to those employees covered by the

Fair Labor Standards Act.

31

While the force of this interpretation

is somewhat diminished because it was

not contemporaneous, it is entitled to

great deference under the criteria defined

in General Electric Co. v. Gilbert, 429

U.S. at 140-44 (1976). See Griggs v.

Duke Power Co., 401 U.S. 424, 433-34 (1971).

Contrary to petitioners' contention, this

regulation, unlike the EEOC regulation

considered in Gilbert, does not "flatly

contradict" an earlier EEOC pronouncement.

In 1965 the Commission published

a regulation, formally codified at 29

C.F.R. § 1604.7, which read in relevant

part as follows:

(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.

z9 U.S.C. 206(d) in order to avoid

conflicting interpretations or re-

quirements with respect to situa-

tions to which both statutes are

a3 2@

applicable. Accordingly, the Com-

mission 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 judg-

ment of the Commission that the

employee coverage of the prohibition

against discrimination in compensation

because of sex is co-extensive 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.

30 Fed. Reg. 14928 (1965). The language

of. the last sentence of this regulation

is nearly identical to that of 29 C.F.R.

§ 1604.8(a) set out above. Title VII

and the Equal Pay Act are to be construed

harmoniously, but the terms of the latter

do not define the scope of the former.

The Commission's interpretations of

Title VII are consistent and authoritative.

The Ninth Circuit's reading of

the Bennett Amendment is in accordance

=-33-

with that provision's plain language,

its legislative history, and its adminis-

trative application. It effectuates,

rather than qualifies, Title VII. The

court correctly rejected petitioners’

position.

CONCLUSION

The petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

LINDSAY, HART, NEIL &

WEIGLER

By

Carol A. Hewitt

Rick T. Haselton

700 Columbia Square

111 S.W. Columbia

Portland, Oregon 97201

(503) 226-1191

Attorneys for Respondents