Petition — International Union of Electrical, Radio & Machine Workers v. Westinghouse Electric Corp.

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& 0 v4 &, ] Supreme Court, U.S.

: FILED

NOW 14 1960

No. 80-

IN THE

Supreme Court of the United Ptates .

OctoBErR TERM, 1980

INTERNATIONAL UNION oF ELEcTRICAL, Rapio AND MACHINE

Workers, AFL-CIO, CLC, anp Loca 449, InTERNa-

TIONAL UNION oF Electrica, Rapio AND MaAcHINE

Workers, AF'L-CIO, CLC,

Petitioners,

Vs.

WESTINGHOUSE ELECTRIC CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Peat tu

Winn Newman

CaRoLE WILSON

1126 Sixteenth Street, N.W.

Washington, D.C. 20036

RicHarp B. Sosot *

MiocHaet B. TRIisTer

Sosot & TRISTER

910 Seventeenth Street, N.W.

Washington, D.C. 20006

Counsel for Petitioners

*Counsel of Record

Dated: November 14, 1980

PRESS OF BYRON 8. ADAMS PRINTING, INC., WASHINGTON, D.C.

°°.

QUESTION PRESENTED

Does a compensation system by which wage rates were

deliberately reduced by an employer solely because jobs

were performed by women violate Title VII of the Civil

Rights Act of 1964, 42 U.S.C. $§ 2000e, e¢ seg., where there

is no violation of the Equal Pay Act because the jobs in

question are not substantially the same as jobs performed

by men at a higher rate?

ili

TABLE OF CONTENTS

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Appendix A

Decision of the U.S. District Court for the Dis-

trict of New Jersey Granting Respondent’s

Motion for Summary Judgment ................ la

Appendix B

Decision of the U.S. District Court for the Dis-

trict of New Jersey Granting Certification Under

Rule 54(b) of the F.R.Civ.P. ...........0eceees 1b

Appendix C

Opinion of the U.S. Court of Appeals for the

Third Circuit Reversing the Judgment of the

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Appendix D

Order of the U.S. Court of Appeals for the Third

Circuit Denying Rehearing and Rehearing En

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TABLE OF CONTENTS Continued

Page

Appendix E

Order of the U.S. Court of Appeals for the Third

Circuit Granting Respondent a Stay of the

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TABLE OF AUTHORITIES

Page

Cases

Corning Glass Works v. Brennan, 471 U.S. 188 (1974).. 13

Gunther v. County of Washington, 20 FEP Cases 788

(D.Ore. 1976), rev’d in part, 623 F.2d 1803 (9th

Cir. 1979), reh. denied, 623 F.2d 1317, cert.

granted, No. 80-429 (Nov. 3, 1980) .. 5, 10, 12, passim

International Brotherhood of Teamsters v. United

Bigtes, SE UE. SOA CISTI) ccc ckcciccceccsvncecs 13

Laffeu v. Northwest Airlines, Inc., 567 F.2d 429 (D.C.

Cir. 1976), cert. denied, 434 U.S. 1086 (1978) .... 13

Statutes and Rule

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Title VII of the Civil Rights Act of 1964 .......... passim

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IN THE

Supreme Court of the United States

Octoser Term, 1980

No. 80-

InteRNATIONAt, Union oF ExectricaL, Rapio AND MACHINE

Workers, AFL-CIO, CLC, anp Locan 449, Inrerna-

TIONAL Union or Enxcrricat, Rapio AND MAcHINE

Workers, AFL-CIO, CLC,

Petitioners,

Vs.

WestincHouse Exectrio CorPoRATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The International Union of Electrical, Radio and Ma-

chine Workers, AFL-CIO, CLC, and its Local 449 petition

for the issuance of a writ of certiorari to the United States

Court of Appeals for the Third Circuit, to review the

judgment of that Court, favorable to petitioners, dated

October 29, 1980.?

1The parties in the court below were: plaintiffs-appellants In-

ternational Union of Electrical, Radio and Machine Workers,

AFL-CIO, CLC, International Union of Electrical, Radio and

Machine Workers, AFL-CIO, CLC, Local 449, Marge Dinnan

Brophy, Henrietta Brown, Melvina Cooper, Ann Raho Frazier,

Helen Walsh, and defendant-appellee Westinghouse Electrie Cor-

poration. The individual plaintiffs are separately represented.

OPINIONS BELOW

The decision of the district court, per Barlow, J., grant-

ing respondent’s motion for summary judgment on peti-

tioners’ claims of discrimination in compensation is not

officially reported. It is unofficially reported at 19 FEP

Cases 450 (D.N.J. 1979), and appears in Appendix A to

this petition. The decision of the district court granting

petitioners’ motion for entry of final judgment on this

claim and certification under Rule 54(b) of the Federal

Rules of Civil Procedure, per Fisher, Ch. J., is not officially

reported. It is unofficially reported at 19 FEP Cases 1028

(D.N.J. 1979), and appears in Appendix B to this petition.

The opinion of the court of appeals reversing the judg-

ment of the district court is not officially reported. It is

unofficially reported at 23 FEP Cases 588 (3d Cir., August

1, 1980), and appears in Appendix C to this petition. The

decision of the court of appeals denying rehearing and

rehearing en bamc, rendered October 29, 1980, is not re-

ported. It appears in Appendix D to this petition. The

order of the court of appeals pursuant to Rule 41(b)

of the Federal Rules of Appellate Procedure, grant-

ing respondent a stay of the mandate until December 28,

1980 to permit the filing of a petition for a writ of

certiorari in this court appears in Appendix E to this

petition.

JURISDICTION

The judgment of the court of appeals, following denial

of rehearing and rehearing en banc, was entered on Octo-

ber 29, 1980. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1), which grants jurisdiction to re-

view cases in the courts of appeals by writ of certiorari

upon the petition of any party.

STATUTES INVOLVED

Section 703(a) of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-2(a):

(a) Employer practices

It shall be an unlawful employment 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

applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.

Section 703(h) of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-2(h) :

(h) Notwithstanding, any other provision of this

title, it shall not be an unlawful employment practice

for an employer to apply different standards of com-

pensation, 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 dis-

criminate because of race, color, religion, sex, or

national origin, nor shall it be an unlawful employ-

ment practice for an employer to give and to act upon

the results of any professionally developed ability

test provided that such test, its administration or

action upon the results is not designed, intended or

used to discriminate because of race, color, religion,

sex or national origin. It shall not be an unlawful

employment practice under this title for any employer

to ai erentiate 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 differ-

entiation 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)).

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 em-

ployed, between employees on the basis of sex by pay-

ing 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 cctabiidlenent 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 sub-

section, reduce the wage rate of any employee.

STATEMENT OF THE CASE

A Procedural Statement

This is a sex discrimination case under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e

et seq. It was filed by petitioners International Union of

Electrical, Radio and Machine Workers, AFL-CIO, CLC

(“IUE”), IUE Local 449 and by five women members of

the bargaining unit the unions represent at defendant

Westinghouse Electric Corporation’s lamp plant in

Trenton, New Jersey. The district court had jurisdiction

pursuant to 42 U.S.C. § 2000e-5(f) (3).

The Complaint alleged a broad range of discriminatory

practices. The district court granted Westinghouse’s mo-

tion for summary judgment with respect to plaintiffs’ alle-

gations of discrimination in compensation, holding that

these allegations failed to state a claim on which relief can

be granted under Title VII. The district court held that,

because of the so-called Bennett Amendment to Title VII,

42 U.S.C. § 2000e-2(h) (last sentence), the only situation

in which sex discrimination in compensation can violate

Title VII is when it would also violate the Equal Pav Act

of 1963. Because the Equal Pay Act applies only when men

and women are performing work that is substantially the

same, and because plaintiffs acknowledged that the jobs

involved in this case do not meet that criterion, the court

held that plaintiffs had not alleged a violation of Title VII.

See App. A. Acting pursuant to Rule 54(b) of the Federal

Rules of Civil Procedure, the district court thereafter

found that there was no just reason for delay and directed

entry of final judgment on plaintiffs’ claims of discrimina-

tion in compensation. App. B.?

On appeal, a panel of the United States Court o* Appeals

for the Third Circuit, one judge dissenting, re. :rsed the

judgment of the district court. The Court of Appeals held

that the Bennett Amendment did not restrict claims of sex

discrimination in compensation under Title VII to cases

that would be actionable under the Equal Pay Act. App. C.

On October 29, 1980, Westinghouse’s petition for rehearing

and rehearing en banc was denied, with one judge noting

his dissent. On November 10, 1980, the Court of Appeals

granted Westinghouse’s motion for a stay of the mandate

until December 28, 1980 pending its filing in this Court a

petition for a writ of certiorari. In order to permit the

Court to review this case simultaneously with County

of Washington v. Gunther, No. 80-249, cert. granted, No-

vember 3, 1980, the union plaintiffs have filed this petition

for a writ of certiorari pursuant to the provisions of 28

U.S.C. §1254(1), rather than wait six weeks for Westing-

house to file its petition. Petitioners have also moved for

expeditious consideration of this petition.

2 The remaining issues in the case were subsequently settled.

B. Factual Statement *

Westinghouse’s plant in Trenton, New Jersey is engaged

in the manufacture of incandescent light bulbs. It is, an

assembly plant with approximately 400 employees, 80%

of whom are women.

The plant was opened in 1917. Prior to February l,

1965, all of the jobs at the plant were segregated as to sex.

There were “male” jobs and “female” jobs, but no jobs in

which both men and women worked.*

In the late 1930’s, Westinghouse adopted and imple-:

mented a procedure for establishing a rate structure under

which women’s jobs were compensated at a rate below their

established value to the company, for the specific reason

that the jobs were filled by women. The process is de-

scribed in portions of the company’s Industrial Relations

Manual, issued on November 1, 1938 and February 1, 1939,

which were submitted by the plaintiffs to the district court.

C.A. App. 110-162.

*There was no discovery on the compensation discrimination

issue in the district court, as Westinghouse declined to respond to

discovery until a decision had been rendered on the legal sufficiency

of plaintiffs’ claim. The factual allegations set forth here were

presented to the District Court in the complaint, and in plaintiffs’

opposition to defendant’s motion to dismiss or for summary judg-

ment, and were considered by both the district court and the court

of appeals. ‘‘C.A. App. —’’ citations refer to the printed appendix

in the Court of Appeals.

* The female jobs were assembly line jobs, ‘‘sub-assembly’’ jobs

(which involve the manual assembly of components) and ‘‘ quality

control’’ jobs (which involve the use of complex instruments to

verify the quality of the product coming off the assembly line).

The male jobs included various material handling jobs (lifting

and moving materials and products), janitor, forklift operator,

warehouseman, machine attendant and craft jobs. The substantial

majority of the employees in the plant have always been women.

’%

Initially, all jobs were “point rated” based on the com-

pany’s appraisal of their inherent value. The Manual speci-

fied the factors to be taken into account in the point-rating,

and described how each of these factors is to be accorded a

numerical weight on an overall scale. Each job was then

assigned a “labor grade” in accordance with its point rating.

The Manual emphasized that jobs were to be rated and

assigned labor grades without regard to whether they were

filled by men or by women.

But after the men’s and women’s jobs were point rated

and allocated to labor grades on an equal basis, the Manual

instructed plant officials to compensate women’s jobs at a

lower rate than men’s jobs which had received the same

point rating and were assigned to the same labor grade:

WAGE RATES FOR WOMEN

The gradient of the women’s wage curve ... is not

the same for women as for men because of the more

transient character of the service of the former, the

relative shortness of their activity in industry, the

differences in environment required, the extra services

that must be provided, overtime limitations, extra

help needed for the occasional heavy work, and the

= sociological factors not requiring discussion

erein.

The rate or range for Labor Grades do not coincide

with the values on the men’s scale. Basically then, we

have another wage curve or Key Sheet. for women be-

low and not parallel with the men’s curve.

See C.A. App. 158. (emphasis added). Wage rates for jobs

in the Trenton plant were established in accordance with

these directives.®

In 1965, the separate labor grades for men and women

were eliminated. But rather than simply combining the five

women’s labor grades with the corresponding five men’s

labor grades, Westinghouse expanded the number of labor

grades from nine to thirteen and accorded men’s jobs labor

grades in the new scale four grades above those of women’s

jobs that had been at the corresponding labor grade level

before the merger.

Women employees at the Trenton plant are still clus-

® A 1956 ‘‘Key Sheet”’ illustrates the process :

KEY SHEET TRENTON PLANT — MARCH 20, 1956

FEMALE MALE

1W $1.525 1M $1.66

2W 1.555 2M 1.695

3W 1.585 3M 1.73

4W 1.62 4M 1.77

5W 1.65 5M 1.85

6M 1.92

™ 2.00

8.4 2.13

9M 2.305

C.A. App. 163. The ‘‘W’’ jobs were rated by the company, accord-

ing to factors selected by the company, as having the same worth as ~

the corresponding ‘‘M’’ jobs, but the jobs were paid less because

they were performed by wor:en. In fact, the highest women’s rate

was lower than the lowest male rate.

*-%

tered in the traditional women’s jobs.* There have, of

course, been numerous increases in the rates set in 1939,

but these increases have been applied to existing rates on

a cents per hour or percentage basis, so that the existing

male-female rate disparities were maintained or enlarged.

And, while there have been some changes in job content

over the years, and some rate adjustments, it is plaintiffs’

contention that the changes have not eradicated the wage

inequities established by the foregoing system. The ques-

tion presented is whether these allegations state a violation

of Title VII.

*The following Table shows assignments at the Trenton plant

as of November 30, 1975:

Westinghouse — Trenton Plant

Male Female

LG1 0 6

LG2 0 33

LG3 1 125

LG4 0 18

LG5 21 16

LG6 4 14

LG7 3 0

LG8 2 0

LG9 3 1

LG10 4 0

LGl1l 0 0

LG12 19 0

LG13 19 0

76 213

C.A. App 165. Ths table shows that with a single exception the 183

employees working at Labor Grades 1 through 4 were women.

These are the grades into which the women’s jobs were placed in

1965. Eighty five percent of the women in the plant are assigned

to these jobs. Id.

1. On November 3, 1980, this Court granted certiorari in

County of Washington v. Gunther, No. 80-249. Gunther,

like this case, involves the question of whether claims of

sex discrimination in compensation under Title VII are

limited to situations actionable under the Equal Pay Act. In

this case, respondent Westinghouse Electric Corporation

has informed the court of appeals of its intention to file a

petition for a writ of certiorari and has secured a stay of

the mandate until December 28, 1980 in order to do so. The

International Union of Electrical, Radio and Machine

Workers, AFL-CIO, CLC and its Local 449, successful

parties below, have filed this petition at this time to enable

the Court to review the instant case simultaneously with

Gunther. Gunther and this case arise on significantly dif-

ferent facts, and consideration of both cases would, we be-

lieve, provide the Court with a broader perspective as to

the implications of the legal issue involved, and facilitate

the definition of the scope of Title VII in the area of com- |

pensation discrimination.

A. Gunther is a suit brought on behalf of four female

matrons in a county jail. The complaint alleged that the

matron job was substantially equal to the male jail guard

job, and that the lesser pay for the matron job therefore

violated the Equal Pay Act, as well as Title VII. Plaintiffs

alleged, alternatively, that even if the jobs were not sub-

stantially equal “some of the difference in salary .. . can be

attributed to sex discrimination.” 623 F.2d 1303, 1308 (9th

Cir. 1979).

The district court in Gunther found that the male job

required more effort and more responsibility than the fe-

male job and that, accordingly, the two jobs were not sub-

stantially equal within the meaning of the Equal Pay Act.

The court held that Title VII, by virtue of the last sentence

of Section 703(h)—the so-called Bennett Amendment—

permits no fur+uer inquiry. See 20 FEP Cases, 785, 791 &

n.7. On appeal, the Ninth Circuit affirmed the trial court’s

conclusion that the jobs are not substantially equal, but

went on to hold that Section 703(h) does not limit sex dis-

crimination in compensation claims under Title VII to prac-

tices that would violate the Equal Pay Act. 623 F.2d at

1310-14. On rehearing, the court of appeals acknowledged

that a violation of Title VII could not be established solely

on the basis of a comparison of the content of jobs that are

not substantially equal, but ‘t indicated that such evidence

was relevant and, together with additional, unspecified evi-

dence of discrimination, could establish a violation of Title

VII. 623 F. 2d 1317, 1321 (9th Cir. 1980). There is no indi-

cation in the opinion of the district court in Gunther that

plaintiffs either alleged or proved intentional discrimina-

tion. The court of appeals stated that the “plaintiffs ap-

parently presented evidence of intentional discrimination

that was not considered by the district court . . .” Id. at

1321, but it did not identify that evidence or specify its

legal significance.

In this case, the issue of the legal effect of the Bennett

Amendment arises in a totally different factual context.

Plaintiffs have not sought to prove that jobs performed by

women are substantially equal to jobs performed by men. In

fact, plaintiffs do not rely on any comparisons of job con-

tent to prove their claim of discrimination. Rather, they

allege that Westinghouse has implemented a system by

which compensation for dozens of jobs traditionally per-

formed by women throughout the Trenton Plant was re-

duced below the levels Westinghouse itself established,

solely and explicitly on grounds of sex. These two factors—

the lack of reliance on job comparison evidence and proof of

a system of intentional discrimination—distinguish this

case from Gunther.

B. The difference between this case and Gunther

could lead to different results. One of the arguments

strenuously asserted by the employers in both cases is that

**%

Congress’ decision in 1963 to substitute the word “equal”

for “comparable” in the Equal Pay bill demonstrates a

purpose to prohibit discrimination cases based on compari-

sons of jobs that are not substantially equal, and that that

purpose is applicable to Title VII, by virtue of general

principles of statutory construction, the legislative history

of Title VII, or the Bennett Amendment. See, e.g., Petition

for a Writ of Certiorari, County of Washington v. Gunther,

pp. 19-23, 25-26. Whether or not, by virtue of these cor-

siderations, Title VII is inapplicable to claims based solely

on comparison of the content of jobs that are not substan-

tially equal, the question would remain as to the effect of

Title VII on cases such as this, which are not based on a

comparison of job duties, but on evidence of an intentional

system of discrimination. Gunther is based on a comparison

of job duties and it is unclear if there is evidence of an

intent to discriminate. In addressing employer argnu-

ments that no form of discrimination in compensation is

unlawful under Title VII unless men and women are work-

ing in substantially equal jobs at different rates of pay,

the Court should have before it a case that involves an

intentional system of discrimination and not comparisons

of job duties."

C. Apart from the Bennett Amendment issue or any

implication of Congressional intent derived from the Equal

Pay Act, the Gunther case and. this case necessarily raise

the question of how the standards of Title VII liability es-

7 In this case, for example, the district court acknowledged that:

... given this Court’s decision, an employer could isolate a job

category which was traditionally all female, arbitrarily cut

the wages of that job class in half for the sole reason that its

holder were female, and yet not run afoul of the broad

remedial provisions of Title VII ...

——a. In such a situation, comparisons of job duties would not be

part of plaintiff’s case. A Title VII claim of disparate treatment

would be based on the difference in treatment and the specific

intent to discriminate.

tablished by this Court apply in the area of compensation

practices. The Court has held that an employment practice

constitutes unlawful discrimination under Title VII, only

if the plaintiff establishes the disparate treatment of a

protected group, including proof of an intention to dis-

criminate, or the disparate impact of a facially neutral

practice that cannot be justified based on the legitimate

business needs of the employer. See International Brother-

hood of Teamsters v. United States, 431 U.S. 324, 355,

n.15 (1977).*° In the absence of proof of intent, there is

question as to just how the pay practices challenged by the

plaintiffs in Gunther would constitute discrimination under

Section 703(a). Although in its rehearing opinion, the court

of appeals in Gunther did suggest that plaintiffs may have

adduced evidence «* intent that was not considered by the

district court, neither the opinions of the court of appeals

or the district court give this Court any clue as to what

that evidence might be, or whether it would, indeed, satisfy

the intent requirement of the disparate treatment analysis.

By contrast, in this case, there are clear and explicit alle-

gations of an international system of discrimination, which

could provide a specific predicate for this Court’s analysis

of requisite proof of discrimination in compensation under

Section 703(a).

2. The Equal Employment Opportunity Commission

participated in this case as amicus curiae in support of the

plaintiffs in the district court and in the court of appeals.

The EEOC Acting General Counsel personally presented

® By contrast, neither proof of an intent to discriminate nor a

facially neutral practice with disparate effect is an element of an

Equal Pay Act violation. A violation can be established simply on

the basis of proof of men and women doing the same job at dif-

ferent rates of pay. See Corning Glass Works v. Brennan, 471 U.S.

188, 195-97 (1974); Laffey v. Northwest Airlines, Inc., 567 F.2d

429, 463-66 (D.C.Cir. 1976), cert. denied, 434 U.S. 1086 (1978);

29 U.S.C. § 260.

'*%

argument in the district court in support of Rule 54(b)

certification, and the EEOC General Counsel personally

presented oral argument to the court of appeals. This

unusual participation results from the great significance

of this case, which arises in a complex industrial setting

and involves a type of discriminatory pay system that af-

fects many thousands of employees in the electrical in-

dustry, and in other major industries in our economy. The

decision of the important legal question presented should

be made with regard to this industrial context, and not

solely in the context of one job in a rural jail.

3. Westinghouse has stated its intention to file a petition

for a writ of certiorari in this Court, but not until December

28, 1980. Under the normal schedule, a petition filed at the

end of December would not come before the Court for its

action until some time in February. At that time, Gunther

will be fully briefed and ready for argument and the Court

could not decide to hear and consider this case with

Gunther, without a substantial delay of the argument in

Gunther.

Petitioners believe that the question of whether or not

this case is heard with Gunther is one over which the Court,

and not Westinghouse, should have control. It is for this

reason that petitioners have determined to precipitate the

issue by filing this petition. Petitioners have simultaneously

filed a Motion to Expedite consideration of this petition, in

which it is suggested that Westinghouse be required to

file its response promptly, so that the petition can be acted

on by the Court prior to the holiday recess, and so that if

the petition is granted the case can be heard and decided

with Gunther, without undue delay.

CONCLUSION

For the reasons stated, the petition should be granted

and this case should be set for hearing with County of

Washington v. Gunther.

Respectfully submitted,

Winn NewMan

CaroLe WILSON

1126 Sixteenth Street, N.W.

Washington, D.C. 20036

Ricuarp B. Sosot *

MicnHaet B. Trister

Sosot & Trister

910 Seventeenth Street, N.W.

Washington, D.C. 20006

Counsel for Petitioners

*Counsel of Record

Dated: November 14, 1980

‘%

APPENDIX

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Crvm Action No. 75-1870

INTERNATIONAL Union oF ExectricaL, Rapio aNnD MACHINE

Workers, AFL-CIO, CLC, an UNINCORPORATED ASSOCIA-

TION, ET AL., Plaintiffs,

Vv.

WestincHouse ELecrric CoRPORATION, A CORPORATION,

Defendant.

Opinion

(filed February 8, 1979)

BARLOW, Chief Judge.

Appearances:

Winn Newman, Esquire

Judy Bonderman, Esquire

1126 Sixteenth Street, N.W.

Washington, D.C. 20036

Richard B. Sobol, Esquire

Sobol & Trister

910 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Plaimtiff Unions

Michael H. Gottesman, Esquire

Frank Petramalo, Jr., Esquire

Jeremiah A. Collins, Esquire

Bredhoff, Gottesman, Cohen & Weinberg

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Individual Plaintiffs

Sidney Reitman, Esquire

Kapelsohn, Lerner, Reitman & Maisel

24 Commerce Street

Newark, New Jersey 07102

Attorney for Plaintiff Unions and Individual

Plaintiffs

Andrew Goldstein, Esquire

Virginia T. Fenton, Esquire

Carpenter, Bennett & Morrissey

744 Broad Street

Newark, New Jersey 07102

Walter P. DeForest, Esquire

Peter D. Post, Esquire

Walter G. Bleil, Esquire

Reed, Smith, Shaw & McClay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Stuart I. Saltman, Esquire

Westinghouse Electric Corporation

Gateway Center

Pittsburgh, Pennsylvania 15222

Attorneys for Defendant

I. Backerounp

This is an action seeking relief for various alleged sex-

ually discriminatory practices and policies of the defendant,

Westinghouse Electric Corporation, hereinafter “Westing-

house”, at its Trenton, New Jersey plant, under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

(as amended), hereinafter “Title VII”. It was originally

part of a larger action brought in the Western District of

Pennsylvania against Westinghouse which alleged similar

discriminatory practices at numerous Westinghouse facili-

ties. Those counts involving defendant’s New Jersey plants

were severed and transferred to this Court.’ Another count,

involving nearly identical allegations with respect to

Westinghouse’s Fairmont, West Virginia plant was trans-

ferred to the Western District of West Virginia. The plain-

tiffs in the present action are a certified class of past and

present female production, maintenance, and warehouse

employees at Westinghouse’s Trenton plant, hereinafter

“individual plaintiffs”,? the International Union of Electri-

cal, Radio and Machine Workers, hereinafter “IUE”, and

Local 449 of the IUE, hereinafter “Local”, the collective

bargaining agent of the individual plaintiffs. Presently

before the Court is the defendant’s motion to dismiss under

Fed. R. Civ. P. 12(b)(6), or, in the alternative, for partial

summary judgment under Fed. R. Civ. P. 56(d), directed at

those portions of the complaint which allege sex based dis-

crimination in the payment of wages.

Plaintiffs’ complaint alleges a pervasive scheme of sex

based discrimination at Westinghouse’s Trenton, New Jer-

sey plant, all in vfolation of § 703(a) of Title VII, 42 U.S.C.

1The original complaint in this action was Civil Action No.

74-570, filed in the Western District of Pennsylvania on June 12,

1974. On October 28, 1975, Counts II-V of that complaint were

severed and transferred to the District of New Jersey with the

consent of all parties.

2 This Court certified the named individual plaintiffs as repre-

sentatives of a class of all past and present female production,

maintenance, and warehouse employees at the Trenton plant on

December 13, 1977.

§ 2000e-2(a).* It alleges discriminatory practices in compen-

sation, job assignments, transfers and promotions, tenure,

job classifications and other terms and conditions of em-

ployment growing out of an official company policy dating

back to 1938. See Complaint J 21. The motion presently

before this Court, however, is far narrower than the issues

raised by the complaint. It singles out for attack only plain-

tiffs’ allegations of sex based wage discrimination under

§ 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a) (1).

In pertinent part, Count IT of the complaint, relating to

Westinghouse’s Trenton plant, alleges that Westinghouse:

willfully and intentionally discriminated inst the

Plaintiffs .. . in violation of Section 703(a) of Title

VII of the Civil Rights Act of 1964... by (a) paying

[them] unequal pay in that male employees performing

the same or substantially the same work receive higher

pay; [and] (b) paying [them] lower rates of pay than

would be paid Tehems if [their] skill, effort and re-

sponsibility were evaluated on the same basis as is

used in evaluating work performed by males... .

Complaint, Count II, ¥ 33.

® Section 703(a) states:

(a) It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any individual,

or otherwise 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;

(2) to limit, segregate, or classify his employees, or appli-

cants for employment in any way which would deprive or

tend to deprive any individual of employment opportunities

or otherwise adversely affect his status as an employee, be-

cause of such individual’s race, eolor, religion, sex, or

national origin.

42 U.S.C. § 2000e-2(a).

Additionally, the plaintiffs charged that Westinghouse vio-

lated section 703(a) by:

paying [them] solely because of [their] sex, at a rate

of pay which is lower than the rate of pay of males

whose jobs have been evaluated by the Defendant

Westinghouse as having the same number of evalua-

tion points based on education, experience, aptitude

effort, responsibility and working conditions required

for the job.

Complaint, Count IT, 7 34.‘

During the course of discovery, however, plaintiffs con-

ceded that, notwithstanding the allegations of the com-

plaint, they did not intend to prove that “any job per-

formed by women employees require[d] ‘equal skill, effort

and responsibility and [was] performed under similar

working conditions as that of a job performed by male

employee”. See, e.g., Answers of Plaintiff Marge Brophy to

Interrogatories by Defendant, Nos. 10, 12, & 16 (filed July

13, 1977); Transcript of Hearing of May 1, 1977 at 34-35

(remarks of Richard Sobol, Esq., counsel for Plaintiff-

Unions). Westinghouse brought this motion in response to

plaintiffs’ admission. °

The question presented for decision by this motion is

whether a sex based wage discrimination claim may be

maintained under Title VII in the absence of allegations

that male and female employees are paid disparate wages

‘Examination of ff] 20-21 of Count I of the Complaint reveals

that identical allegations were made with regard to defendant's

Fairmont, West Virginia plant.

5 Westinghouse styles its motion as one to dismiss or, in the

alternative, for summary judgment. Since resort has been made to

matters outside the pleadings to establish that there is no material

issue of fact as to the payment of unequal wages for substantially

equal work, see Fed. R. Civ. P. 12(c), we will treat the motion as

seray partial summary judgment pursuant to Fed. R. Civ. P.

(d).

‘%

for the performance of equal or substantially equal work.

More specifically, the question is whether the Bennett

Amendment to §703(h) of Title VII, 42 U.S.C. § 2000e-

2(h)* limits sex based wage discrimination claims under

Title VII to conduct which would also be actionable under

the Equal Pay Act of 1963, an amendment to the Fair Labor

Standards Act of 1938, 29 U.S.C. § 206(d)." The answer to

the question is purely a matter of statutory construction.®

* See text at n. 17, infra, for the text of § 703(h).

Section 3 of the Equal Pay Act states, in pertinent part,

that:

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 establish-

ment at a rate less than the rate at which he pays to em-

ployees 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 ‘s

mac? 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... .

29 U.S.C. § 206(d) (1).

*In their briefs and at oral argument Westinghouse suggested

that the doctrine of collateral estoppel provides another ground

for granting their motion. It appears that in that portion of the

original action transferred to West Virginia, Westinghouse brought

an identical motion and the court ruled in its favor. See IUE v.

Westinghouse, Civ. No. 75-62-f(H), unpublished opinion, at 11-18

(N.D.W.V. Nov. 21, 1977), hereinafter the ‘‘West Virginia action’’.

This Court requested supplemental briefs from all parties in order

to consider defendant's contentions. After considering these briefs

without benefit of additional oral argument, we do not believe that

se doctrine of collateral estoppel is properly applicable on these

acts.

Without examining all of the requirements of the doctrine, see

Scooper-Dooper Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir.

Il. Tse Mearrs or Puarmtirrs’ Trruzs VIL Cram

This Court believes that plaintiffs’ allegations of sex

based wage discrimination, as clarified by plaintiffs’ admis-

sion that they do not intend to prove that equal or sub-

stantially equal work was performed for unequal pay, are

insufficient in law and that defendant’s motion should,

therefore, be granted.

Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)

(1),° establishes a broad prohibition against discrimination

in hiring, discharge, compensation, terms, conditions or

privileges of employment based on race,'color, religi~ a, sex

or national origin. The year before Title VII was enacted,

however, Congress directed its attention to one small subset

1974), it is clear that the issue decided in the West Virginia action

is not identical to the issue presently before this Court, notwith-

standing the fact that identical questions of law are raised.

See Commissioner v. Sunnen, 333 U.S. 591, 601-602 (1958). In this

case, the job classification and pay scheme used in New Jersey

has been challenged under Title VII, whereas the West Virginia

action involved a challenge to the scheme in effect in that state.

Clearly the two are ‘‘separable’’ as that term is used in Sunnen,

supra, at 601-602.

This decision reflects our hesitancy to apply collateral estoppel

to questions of statutory construction. Doing so will not further

the goal of economy of scarce judicial resurces which is at the

heart of the doctrine, see Parklane Hosiery Co. v. Shore, 47

U.S.L.W. 4079, 4080-81 (U.S. Jan. 9, 1979), since the merits of

the issue will be decided on motion, without testimony or trial,

and at the expense of little more judicial energy than it takes to

decide whether collateral estoppel applies in the first instance.

Furthermore, the judicial system best resolves such questions by

allowing judges to render their considered opinions based upon

their independent evaluation of the factors which go into

decision, allowing the ordinary rules of stare decisis to govern

subsequent application of those decisions in later cases. We there-

fore decline to estop the plaintiffs from relitigating the legal ques-

tions raised in this case and turn to the merits.

* Cited in n. 3, supra.

of this broad spectrum of discriminatory practices and

passed the Equal Pay Act of 1963, 29 U.S.C. § 206(d).°

This act was designed to deal only with wage discrimination

based on sex and did so by enunciating the now well known

“equal pay for equal work” standard. See, e.g., Schultz v.

Wheaton Glass Co., 421 F.2d 259, 265-55 (3d. Cir)., cert.

dented, 398 U.S. 905 (1970). Congress, desiring to limit the

scope of judicial intervention into the business place, re-

jected a version of the bill which enunciated a “comparable

work” standard and adopted instead the “equal work”

standard.’ Under the formulation ultimately adopted by

Congress, the Equal Pay Act almost takes the form of a

strict liability statute such that proof that men and women

perform “substantially equal” work requiring “equal skill,

effort and responsibility” and “performed under similar

working conditions” for unequal pay establishes a violation

without regard to the intent of the employer. See, e.g.,

Corning Glass Works v. cian 417 U.S. 188, 195-97

(1974); Angelo v. Bacharach Instrument Co., 555 F.2d

1164 (3d Cir. 1977). The Act, however, provides four af-

firmative defenses by which an employer can avoid liability

notwithstanding proof of unequal pay for substantially

equal work.”

10 Cited in n. 7, supra.

11 H.R. 8898, 87th Cong., Ist Sess. § 4 (1962) and H.R. 10226,

87th Cong., 2d Sess. § 4 (1962) each provided for the payment of

equal wages for the performance of ‘‘ work of comparable character

on jobs the performance of which requires comparable skills... .’’

Later, as H.R. 11677, 87th Cong., 2d Sess. (1962), the bill, after

considerable debate, was amended on the floor of the House to

substitute the ‘‘equal work’’ formula for ‘‘comparable work’’.

108 Cong. Rec. 14771 (1962). A more complete examination of the

history of the Equal Pay Act can be found in the Brief in Support

of Defendant’s Motion to Dismiss, or, in the Alternative, For

Summary Judgment, at 8-13.

13 See n. 7, supra, for the text of these four defenses. Their proper

application is not at issue in this case.

Returning to 1964 and the passage of Title VII, Congress

was faced with the prospect of enacting a broad statute

which would cover conduct already regulated by the nar-

rower prohibitions of the Equal Pay Act,” and the problem

of determining how the two statutes should relate to one

another. Congress’ answer to this problem, though not

necessarily a solution, was the Bennett Amendment, added

to §703(h) of Title VII, 42 U.S.C. § 2000e-2(h), which

states:

It shall not be an unlawful employment practice

under this subchapter for any employer to differen-

tiate upon the basis of sex in determining the amount

of compensation paid or to be paid to employees of

such employer if such ngs acho yong ts authorized by

the provisions of [the Equal Pay Act]. (Emphasis

added. )

The present controversy revolves around the proper inter-

pretation of this amendment.

Westinghouse, in support of this motion, argues that the

Bennett Amendment should be interpreted to incorporate

the Equal Pay Act’s “equal work” formula into Title VII,

making the two prohibitions coextensive.’* Thus a Title VII

plaintiff would be required to show that the conduct com-

plained of violated the equal work standard of the Equal

Pay Act in order to establish sex based wage discrimination

under Title VII. Under this view, the payment of unequal

wages to men and women performing “comparable” but

unequal work would violate neither the Equal Pay Act nor

Title VII.

18 See text at 9-12, infra.

14The two prohibitions would be coextensive only as to the type

of conduct prohibited. The two acts have different scopes of

coverage, in the sense of employees protected and employers regu-

lated, and provide for different remedies. See Howard v. Ward

City, 418 F. Supp. 414 (D.N.D. 1976).

10a

Plaintiffs, in opposition to Westinghouse’s motion, argue

that Congress did not intend to incorporate the entire

“equal work” formula of the Equal Pay Act into Title VII,

but only the four affirmative defenses. This interpretation

would allow plaintiffs to show sex based wage discrimina-

tion under Title VII even though no violation of the equal

work standard of the Equal Pay Act had occurred. Plain-

tiffs strenuously argued that Congress could not have in-

tended to allow purposeful sex based wage discrimination,

on the pretext of keeping the courts out of the business

place, when Congress exhibited little concern for judicial

interference in the business place when wage discrimination

was based on race, color, religion, or national origin rather

than on sex.

Put succinctly, defendant contends that the proper in-

terpretation of the Bennett Amendment requires that any

conduct not prohibited by the Equal Pay Act is “author-

ized” by that act, while the plaintiffs argue that the Equal

Pay Act only “authorizes” conduct protected by the four

affirmative defenses. To ascertain which of these two views

is the correct one, we must examine the relevant legislative

history of Title VII, the subsequent administrative inter-

pretations of Title VIC, and the cases addressing the issue.

A. Legislative History of Title VII.

Briefly set out, the legislative history of Title VII begins

with its introduction as H.R. 7152, 88th Cong., 1st Sess.,

on June 20, 1963. The bill was referred to the House Judi-

ciary Committee and was reported out to the full House on

January 31, 1964 with a recommendation that the bill be

approved. See H.R. Rep. No. 914, 88th Cong., 2d Sess., re-

printed in [1964] U.S. Code Cong. & Ad. News 2391, 2401-

2408. During all of this time the prohibitions of section

703(a) applied only to race, color, religion and national

origin. No mention was made of sex. H.R. Rep. No. 914,

supra. On February 8, 1964 Congressman Smith of Vir-

lla

ginia proposed an amendment to section 703(a) which

would include sex among the prohibited bases of discrimi-

nation. See 110 Cong. Rec. 2484 (1964). The amendment

was passed that same day and the entire bill was approved

two days later and sent to the Senate without further con-

sideration of the effect of the amendment on the Equal Pay

Act.

The bill bypassed the Senate committee system and was

presented directly to the full Senate for initial considera-

tion. It was not until this time that concern was first ex-

pressed about the relation of the Title VII sex discrimina-

tion ban to the Equal Pay Act. Senator Clark, in response

to those expressions of concern, submitted a memorandum

to the Senate which assured that “the standards of the

Equal Pay Act for determining wage discrimination of

course are applicable to the comparable situation under

Title VII”. 110 Cong. Rec. 7212 (1964). Apparently not

completely satisfied with this explanation, Senator Ben-

nett introduced his proposed amendment to section 703(h).

The proffered amendment was passed with very little de-

bate, but Senator Bennett clearly stated that “the purpose

of my amendment is to provide that in the event of con-

flicts, the provision of the equal pay act shall not be nulli-

fied”. 110 Cong. Rec. 13647 (1964).**

15 The complete legislative history of the Bennett Amendment is

set forth below:

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 pro-

posed 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

12a

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 yearn-

ing 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

became effective only yesterday.

By this time, programs have been established for the effec-

tive administration of this act. Now, when the civil rights bill

is under consideration, 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 leadership in charge of the bill have

agreed to the amendment as a proper technical correction of

the bill. If they will confirm that understand, 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 exceptions. i

All that the pending amendment does is recognize those

exceptions, that are carried in the basie 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.)

The amendment was agreed to.

110 Cong. Ree. 13647 (1964).

13a

Upon consideration of the Senate amendments to the

House bill, Congressman Celler was called upon to explain

the purpose of the Bennett Amendment. The Congressman

stated that the Bennett Amendment “provides that com-

pliance with the Fair Labor Standards Act as amended

satisfies the requirements of the title [Title VII] banning

discrimination because of sex”. 110 Cong. Rec. 15896 (1964).

As is indicated by this brief examination of the legisla-

tive history of the sex discrimination provisions of Title

VII, it is clear that Congress did not give the fullest possi-

ble attention to the extent to which the sex discrimination

provisions of Title VII were to be coterminous with those

prohibitions against discrimination based on factors other

than sex. This Court is of the view, however, that, although

the legislative history is not dispositive of the issue, it

tends to support defendant’s view of the statute more

strongly than the view put forth by plaintiffs.’®

B. Administrative Interpretations of Title VII.

Both plaintiffs and defendant argue that their view of the

statute is supported by various guidelines issued by the

Equal Employment Opportunity Commission [the “Com-

16 Plaintiffs stress the fact that Senator Bennett described his

amendment as a ‘‘technical correction’’, see 110 Cong. Rec. 13647

(1964), and argue that technical corrections do not make drastic

changes in the substantive provisions of acts of Congress. See

Plaintiff Unions’ Memorandum in Opposition to Defendant’s

Motion to Dismiss, at 8. Westinghouse, on the other hand, argues

that the amendment was a proper technical correction because

it served to confirm Senator Clark’s view of the statute, discussed,

supra, at 10, without benefit of the amendment. See Reply Brief in

Support of Defendant’s Motion to Dismiss, or, in the alternative,

for Summary Judgment, at 11. Because of this conflict in inter-

pretations, this Court does not believe the Bennett Amendment’s

characterization as a ‘‘technical correction’’ to be of particular

importance in resolving the issue before us.

°%

14a

mission’”’].’7 Defendant’s view, the view which this Court

believes is most strongly supported by the legislative his-

tory of Title VII, appears to be supported by at least the

initial Commission interpretations of the Bennett Amend-

ment. In 1965 the Commission promulgated guidelines ex-

plaining its view of the scope of Title VII. With respect to

sex based wage discrimination, the Commission’s guideline

interpreted 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 com-

pensation are applicable to Title VIL”.*

17 Although the Commission is not authorized by the Civil Rights

Act to promulgate regulations which have the force of law, its

expressions of opinion on the statute committed to its care are

clearly deserving of consideration by this Court when questions of

statutory construction arise. See General Electric Co. v. Gilbert,

429 U.S. 125, 141 (1976).

1830 Fed. Reg. 14927 (1965). The full text of the guideline,

formerly codified at 29 C.F.R. § 1604.7 (1965), stated:

§ 1604.7 Relationship of Title VII to the Equal Pay Act.

(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. 206(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 the 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.

(b) Accordingly, the Commission will make applicable to

equal pay complaints filed under Title VII the relevant inter-

pretations of the Administrator, Wage and Hour Division,

Department of Labor. These interpretations are found in 29

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15a

Notwithstanding this apparently clear expression of the

correct interpretation of section 703(h), the Commission

has since altered its view. In 1972 a new guideline was

issued which adopted language apparently adopting the

plaintiffs’ view of the statute. This guideline, presently in

force, states that “by virtue of section 703(h), a defense

based on the Equal Pay Act may be raised in a proceeding

under Title VII”.’* The new language no longer expressly

Code of Federal Regulations, Part 800.-119-800.163. Relevant

opinions of the Administrator interpreting ‘the equal pay for

equal work standard’ will also be adopted by the Commission.

(ec) The Commission will consult with the Administrator

before issuing an opinion on any matter covered by both

Title VII and the Equal Pay Act.

(Emphasis added.) :

Subsection (a) makes it clear that it was the Commission’s initial

view that with respect to sex based wage discrimination, Title

VII’s only addition to the protection afforded by the Equal Pay

Act was in respect to the employees covered by the statute. See

n, 14, supra.

1929 C.F.R. § 1604.8 (1977). The full text of the guideline

reads:

See. 1604.8 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 co-

extensive with that of the other prohibitions contained in

Title VII and is not limited by secton 703(h) to those

employees covered by the Fair Labor Standards Act.

(b) By virtue of section 703(h), a defense based on the

Equal Pay Act may be raised in a proceeding under Title VII.

give appropriate consideration to the interpretations of the

Administrator, Wage and Hour division, Department of Labor,

but will not be bound thereby. 29 C.F.R. § 1604.8.

16a

adopts the equal work formula, but neither does it expressly

reject that formula.”

Although the 1972 guideline does not expressly reject the

“equal work” formula, the present position of the Commis-

sion, as ‘"lustrated by its past decisions, is clearly in line

with plainuffs’ position and rejects the “equal work” for-

mula. See, e.g., [1972] Empl. Prac. Guide (CCH) Empl.

Prac. Dec. 71-2629, 1 6300 at 4539. Additionally, it is pres-

ently the position of the Secretary of Labor, who submitted

a brief as Amicus Curiae, that section 703(h) does not limit

Title VII to the equal work standard of the Equal Pay Act.

See Memorandum of the Secretary of Labor As Amicus

Curiae, at 3.

In determining which of the Commission’s two views of

section 703(h) we should adopt, this Court is directed by

the reasoning employed by the Supreme Court in General

Electric Co. v. Gilbert, 429 U.S. 125 (1976). In Gilbert, the

Court was faced with nearly the identical dilemma which

presently faces this Court—i.e., the weight to be given a

1972 Commission guideline which conflicted with earlier

agency rulings on the meaning of Title VII’s sex discrimi-

nation ban, The persuasiveness of the guidelines, the court

stated, should “in a particular case depend upon the thor-

oughness evident in its consideration, the validity of its

* It is unclear whether the 1972 guidelines actually repeal

earlier interpretations of the Commission. 29 C.F.R. § 1604.1(b)

states: ‘‘To the extent that the views expressed in prior Commission

pronouncements are inconsistent with the views expressed herein,

such prior views are hereby overruled.’’ The 1972 guideline

is not expressly inconsistent with the 1965 ruling, in that it does

not reject the ‘‘equal work’’ formula. Furthermore, the express

incorporation of the four affirmative defenses of § 6(d) of the

Equal Pay Act, 29 U.S.C. § 206(d), is not inconsistent with the

1965 guidelines. The implication is clear, however, that the Com-

mission’s omission of language expressly incorporating the ‘‘equal

work’’ formula is intended to show that the Commission now dis-

approves of that language.

17a

reasoning, its consistency with earlier and later pronounce-

ments and all of those factors which give it power to per-

suade, if lacking power to control”. Id. at 142 quoting Skid-

more v. Swift & Co., 323 U.S. 134, 140 (1944).”4

We conclude, as the Supreme Court concluded in Gilbert,

that the 1972 guidelines are not persuasive. Although the

Gilbert case does not enunciate a rule that prior interpreta-

tions are to supersede subsequent inconsistent interpreta-

tions as the defendant suggests, see Brief in Support of

Defendant’s Motion to Dismiss or, in the Alternative, For

Summary Judgment, at 22, it is clear to this Court that the

earlier guidelines, under the standards set out in Gilbert

and Skidmore, supra, are entitled to greater deference than

the subsequent guidelines. The fact that the 1965 guide-

lines were issued contemporaneously with Title VII while

the intent of the Congress which had created the Com-

mission was clearly impressed upon the minds of the com-

missioners, see Udall v. Tallman, 380 U.S. 1, 16 (1965),

coupled with the fact that the 1965 guideline expressly

addressed the incorporation of the “equal work” formula,

while the 1972 guideline seems to avoid the issue, see text

at 14 and n. 20, supra, leads this Court to conclude that

the 1965 guideline more nearly reflects the intent of Con-

gress in enacting the limitation set out in section 703(h).

C. The Case Law

Finally, this Court is of the opinion that the cases sup-

port the interpretation of section 703(h) urged by West-

inghouse, Every case involving a Title VII sex based wage

discrimination claim to which this Court’s attention has

been directed has placed upon the plaintiff the initial

21 It should be noted that Gilbert dealt not with two inconsistent

Commission guidelines, but with an opinion letter and a subsequent

inconsistent guideline. See 429 U.S. at 142-43.

18a

burden of showing equal work and unequal pay. Z.g., Orr

v. MacNeil & Sons, 511 F.2d 166, 171 (5th Cir.), cert.

denied, 423 U.S. 865 (1975) (“To establish a case under

Title VII it must be proved that... there was the perform-

ance of equal work for unequal compensation.) ; Ammons

v. Zia & Co., 448 F.2d 117, 120 (10th Cir. 1971) (Aldisert,

J.) (“[TJo establish a [Title VII] case one must prove a

differential in pay based on sex for performing equal

work.”) ; Molthan v. Temple University, 442 F. Supp. 448,

455 (E.D. Pa. 1977) (“[A]ny Title VII claim alleging sex

based discrimination in salary will fail if the complained of

acts do not amount to a violation of une Equal Pay Act.”) ;

Chrapliwy v. Uniroyal, Inc., 15 Fair Empl. Prac. Cas. 795,

806 (N.D. Ind. 1977) (“Under [Title VII] the court’s initial

inquiry is always: Are the jobs held by a male and a female

substantially equal?”) ; Howard v. Ward City, 418 F. Supp.

494, 503 (D.N.D. 1976) (same); Di Salvo v. Chamber of

Commerce of Greater Kansas City, 416 F. Supp. 844, 849

(W.D. Mo. 1976) (The question is “whether defendant dis-

criminated in salary between males and females who per-

formed substantially equal work”.); Erickson v. Lustra

Lighting Division of I.T. & T., 12 Fair Empl. Prac. Cas.

372, 376 (N.D. Cal. 1974) (Initial question is “whether

plaintiff performed work substantially equal to that per-

formed by the men... .”). Although plaintiffs attempt to

distinguish these cases as being “equal pay type cases” not

involving allegations of purposeful discrimination, see

Plaintiff Unions’ Memorandum in Opposition to Defend-

ant’s Motion to Dismiss at 18, they fail to support their sug-

gested distinction with authority, holding that allegations

of purposeful discrimination climinate the need to show

equal work in order to state a sex based wage discrimina-

tion claim upon which relief can be granted under Title

VII. Furthermore, none of the cases cited by defendant

use any language suggesting that unsuccessful plaintiffs,

who had failed to prove equal work, could nevertheless

proceed under Title VII on any other basis.

19a

Those cases upon which plaintiffs rely for the proposi-

tion that the Bennett Amendment incorporates only the

four Equal Pay Act affirmative defenses and not the

“equal work” standard, Laffey v. Northwest Airlines,

567 F.2d 429 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086

(1978); Los Angeles Department of Water and Power v.

Manhart, 435 U.S. 702 (1978), do not hold that a Title VII

claim may be stated without a showing of equal work.

Laffey, for example, superficially supports plaintiffs’ posi-

tion when it states that “a sex-predicated wage differential

is immune from attack under Title VII only if it comes

within one of the four enumerated exceptions to the equal

pay act”. 567 F.2d at 446. This statement, however, is in

response to an argument not pressed before this Court.

In Laffey, the defendant had argued that sex based wage

discrimination claims were cognizable only under the Equal

Pay Act and that Title VII had no applicability unless the

employees were not covered by the Equal Pay Act. See

567 F.2d at 444-45." The court rejected this argument and

then went on to review the district court’s finding that the

jobs held by male and female employees were “equal”,

apparently on the assumption that such a finding was

necessary to allow plaintiffs any relief. See id. at 446,

453-54.

Likewise, the Supreme Court’s recent decision in Man-

hart, supra, 435 U.S. 703 does not aid plaintiffs.” In Man-

*2The defendant’s purpose in pressing this argument in Laffey

apparently was to minimize its potential liability. Both Title VII

and the Equal Pay Act authorize an award of back pay to redress

any violation proved, and under the circumstances of that case

the period for which back pay could have been awarded was longer

= Title VII than under the Equal Pay Act. See 567 F.2d at

* Plaintiffs actually relied upon the decision of the Court of

Appeals for the Ninth Circuit, 553 F.2d 581 (1976), which was

affirmed in part and reversed in part by the Supreme Court, 435

U.S. 702, after oral argument was heard in this case.

20a

hart the issue presented was whether a fixed benefit pension

plan which required greater employee contributions from

women than men violated Title VII. Clearly, the pension

benefits were “wages or compensation” under section

703(h) so that the Equal Pay Act applied to the resolution

of the issue. 435 U.S. at 712 n. 23. From the outset, how-

ever, it had been conceded that men and women performed

equal work for unequal pay. What was at issue was whether

one of the four affirmative defenses of the Equal Pay Act

saved what the defendants conceded would otherwise be

a violation. 7d. at 711-12. The Court found none of the

defenses applicable and struck down the plan. /d. at 717.

In light of the above discussion, we do not believe that

Manhart is helpful to plaintiffs in this action.

It is therefore this Court’s opinion that the case law, as

well as the legislative history and prior administrative

interpretations of the Commission, all support Westing-

house’s contention that the Bennett Amendment incor-

porated the “equal work” standard of the Equal Pay Act

into Title VII. Accord, the West Virginia action, supra,

n. 7, at 17; Equal Employment Opportunity Commission v.

Colby College, 439 F. Supp. 631 (D. Maine 1977), vacated

and remanded on other grounds, 47 U.S.L.W. 2417 (1st

Cir. Jan. 9, 1979). In Colby College, Judge Gignoux stated:

Both the language of the Bennett Amendment and its

legislative history disclose the plain intent of Congress

to avoid subjecting pole o two conflicting stand-

ards, those of Title and those of the then recently

enacted Equal Pay may boyy to provide that any 4

sible conflict between the requirements of Title

and of the Equal Pay Act is to be resolved in favor

of the Equal Pay Act.

439 F. Supp. at 634-35.

We believe that our holding is required if we are to effectu-

ate Congress’ intent and to refrain from subjecting em-

ployers to two potentially conflicting si.»dards regarding

sex based wage discrimination.

**>

2la

Before closing this opinion, we would like to briefly com-

ment on plaintiffs’ argument that Congress could not con-

ceivably have intended to isolate one form of purposeful

discrimination and exempt it from the broad prohibitions

of Title VII. They refer to the hypothetical situation where-

by, given this Court’s decision, an employer could isolate

a job category which was traditionally all female, arbi-

trarily cut the wages of that job class in half for the sole

reason that its holders were female, and yet not run afoul

of the broad remedial provisions of Title VII. See Plaintiff

Unions’ Memorandum in Opposition to Defendant’s Motion

to Dismiss at 9. Even assuming that this would in fact be

true, such discrimination could not be maintained. Title

VII would still prohibit sex discrimination in hiring, firing,

promotion, transfer, classification, and terms and conditions

of employment, and any attempt to perpetuate the effects

of such purposefully discriminatory yet allegedly lawful

activities would run afoul of these prohibitions. We there-

fore do not believe that our decision will have the dire

consequences predicted by the plaintiffs.

CONCLUSION

In conclusion, therefore, we have ruled that allegations

and proof of unequal pay for unequal, but comparable,

work does not state a claim upon which relief can be

granted under section 703(a)(1) of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a)(1). Since plaintiffs have ad-

mitted that they cannot prove that the jobs held by men and

women for which unequal pay was given were substantially

equal and required equal skill, effort and responsibility,

and which were performed under similar working condi-

tions, defendant’s motion for partial summary judgment

must be, and it hereby is, granted.

Defendant will submit an appropriate order.

George H. Barlow

Chief Judge

22a

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

No. 75-1870

InrerRNATIONAL Union or Exectricat, Rapio anp MacHINnE

Worxsers, AF'L-CIO-CLC, an Unincorporated Aswo-

ciation, ET AL.,

Plaintiffs,

Westinenouse Execrric Corporation, A CORPORATION,

Defendant.

Order Granting Defendant's Motion for Partial

Summary Judgment

(Filed March 14, 1979)

Defendant Westinghouse Electric Corporation, in accord-

ance with Rules 12(b) and 56 of the Federarl Rules of

Civil Procedure, moved the Court to dismiss or, in the

alternative, to enter summary judgment on behalf of De-

fendant with respect to all claims made in Count Two re-

lating to rates of pay, unequal pay or compensation. The

plaintiffs opposed the motion. After a hearing and con-

sideration of the record herein, the Court rendered its writ-

ten Opinion of February 8, 1979, holding that Defendant’s

motion for summary judgment must be granted.

Accordingly, pursuant to the Court’s opinion of Febru-

ary 8, 1979 and since there is no genuine issue of material

fact presented, it is the ORDER of this Court that the

motion of Defendant for summary judgment with respect

to claims regarding discrimination in pay or compensation

be, and hereby is, granted.

/s/

George H. Barlow

Chief Judge

Dated: March 14, 1979

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Crvm Action No. 75-1870

INTERNATIONAL UNION or ELEctTrRICAL, Rapio AND MACHINE

Workers, AFL-CIO, CLC, er au., Plaintiffs,

WestincHouse Execrric Corporation, A CoRPORATION,

Defendant.

Opinion

FISHER, Chief Judge.

Appearances:

Winn Newman, Esquire

Judy Bonderman, Esquire

1126 Sixteenth Street, N.W.

Washington, D.C. 20036

Richard B. Sobol, Esquire

Sobol & Trister

910 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Plaintiff Unions,

Michael H. Gottesman, Esquire

Frank Petramalo, Jr., Esquire

Jeremiah A. Collins, Esquire

Bredhoff, Gottesman, Cohen & Weinberg

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Individual Plaintiffs.

¢%

Sidney Reitman, Esquire

Kapelsohn, Lerner, Reitman & Maisel

24 Commerce Street

Newark, New Jersey 07102

Attorneys for Plaintiff Unions and Individual

Plaintiffs.

Andrew Goldstein, Esquire

Virginia T. Fenton, Esquire

Timothy Carpenter, Esquire

Carpenter, Bennett & Morrissey

744 Broad Street

Newark, New Jersey 07102

Walter P. DeForest, Esquire

Peter D. Post, Esquire

Walter G. Bleil, Esquire

Reed, Smith, Shaw & McClay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Stuart I. Saltman, Esquire

Westinghouse Electric Corporation

Gateway Center

Pittsburgh, Pennsylvania 15222

Attorneys for Defendant.

Issie L. Jenkins, Esquire

Acting General Counsel

Vincent Blackwood, Esquire

Equal Employment Opportunity Commission

2401 “EK” Street, N.W.

Washington, D.C. 20506

Amicus Curiae

On March 14th, 1979, this Court entered an order grant-

ing partial summary judgment in favor of the defendant

Westinghouse Electric Company on portions of Count II

of the complaint. In so doing, the Court held that plaintiffs

could not prove a claim upon which relief could be granted

under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq., as amended, by alleging and proving inten-

tional sex-based wage discrimination which did not violate

the “equal pay for equal work” standard of the Equal Pay

Act. 26 U.S.C. § 206. Presently before the Court is plaintiffs’

motion to have this ruling certified as a final judgment for

purposes of appeal pursuant to Fed. R. Civ. P. 54(b). The

Equal Employment Opportunity Commission, which has

been granted leave to appear and participate as amicus

curiae, supports the plaintiffs’ motion.

Certification under Rule 54(b) requires, first, that there

be multiple claims for relief asserted against a single de-

fendant ;' second, that one or more but less than all of the

claims for relief be finally determined; and, third, that

there be no just reason for delaying the appeal. See Sears

Roebuck & Co. v. Mackey, 351 U.S. 427 (1956) ; 10 Wright

& Miller, Federal Practice and Procedure: Civil § 2656.

The parties do not dispute that the first two of these three

requirements are met. The plaintiffs assert multiple claims

for relief against the defendant, and the Court’s ruling on

the sex-based wage discrimination claim of Count II of

the complaint constitutes a final judgment with respect to

one of those claims. See I.U.E. v. Westinghouse Electric

Co., unpublished opinion, Civ. Action No. 75-62-F (N.D.

W.Va. April 28, 1978). Cf. Liberty Mutual Insurance Co.

v. Wetzel, 424 U.S. 737 (1976). All that remains to be de-

termined, therefore, is whether there is no just reason for

delaying the appeal in this matter.

The law in this circuit has long been that certification

under Rule 54(b) is the exception rather than the rule, and

that final judgment should be entered only in the “infre-

quent harsh case” as an instrument for the improved ad-

1Qrders which finally adjudicate a claim against a single de-

fendant may also be certified as final judgments in suits against

multiple defendants. Fed. R. Civ. P. 54(b). Since this is not the

case here this provision of Rule 54(b) is not relevant.

Rule 54(b) was re-affirmed by the Third Circuit Court of

Appeals in Allis-Chalmers Corp. v. Philadelphia Electric

Co., 521 F.2d 360 (3d Cir. 1975), and again in Curtiss-

Wright Corp. v. General Electric Co., Nos. 78-2179-2293

(3d Cir. April 17, 1979). The burden is on the party seeking

certification to show that this is the infrequent harsh case

meriting a favorable exercise of this Court’s discretion.

Allis-Chalmers, supra, 521 F.2d at 365.

The Court’s task is to examine those factors which are

peculiar to this case in order to determine whether they

counterbalance the general judicial policy against piecemeal

litigation and appeals. Allis-Chalmers provides instructions

in the form of a non-exclusive list of five factors to be con-

sidered:

(1) the relationship between the adjudicated and un-

adjudicated claims;

(2) the possibility that the need for review might or

might not be mooted by future developments in the

district court;

(3) the possibility that the reviewing court might be

obliged to consider the same issue a second time;

(4) the presence or absence of a claim or counterclaim

which could result in set-off against the judgment

sought to be made final; and

(5) miscellaneous factors such as delay, economic and

solvency considerations, shortening the time for trial,

frivolity of competing claims, expense and the like.

(E.D. Pa. 1978).

Considering these factors in light of the present facts

we note that the fourth factor, which was so important in

denying certification in Allis-Chalmers and Curtiss-Wright,

is altogether lacking here. The third factor favors certifica-

tion because a reviewing court will not be obliged to con-

sider this issue a second time on an appeal after a trial on

the remaining claims. Likewise, although the adjudicated

and unadjudicated claims are related, in the sense that all

are Title VII claims of sex discrimination arising out of the

same series of transactions, they are sufficiently distinct to

permit certification. The claim sought to be certified is one

of statutory construction only, and does not deal with the

complicated factual issues at the heart of the unadjudicated

claims. These factors, therefore, all seem to favor certifica-

tion.

Plaintiffs additionally argue that the delay in the appeal

of this claim will prejudice their ability to proceed to trial

should the ruling be reversed. They argue that the jobs at

issue are being phased out, thereby interfering with dis-

covery and proof at a later date. Delay will also cause

witnesses to become unavailable, as well as the potential

class claimants in subsequent stage II proceedings.

The EEOC, in support of the motion, argues that our de-

cision involved a “novel issue” which is likely to recur.’

They would like the benefit of a higher court’s ruling in

order to aid them map out their future actions with respect

to such claims.

Westinghouse strenuously opposes the motion. They

contend that certification will prejudice them in that they

will be forced to litigate in two arenas at one time; that

2 Westinghouse takes issue with this contention. Although I

believe that the cases support the late Judge Barlow’s decision,

with the exception of the action involving Westinghouse’s Fair-

mont plant the cases do not squarely decide the issue presented

here. Without indicating any lack of conviction as to the correct-

ness of the prior decision, the prior Third Cireuit decisions do not

appear to be ‘‘on all fours’’ with the factual setting of this case.

’%

7".

the attention and energy of the parties will be diverted

from a trial on the remaining claims thus delaying the

resolution of the major portion of the case; and that possi-

ble settlement will be delayed. They argue that certification

should not be granted where the moving party has’ not

demonstrated any hardship or injustice which would be

alleviated by an immediate appeal. See Vasquez v. Ferre,

410 F. Supp. 1385, 1387 (D.N.J. 1976). An affidavit is sub-

mitted rebutting plaintiffs’ claim that they will be preju-

diced by a delay in the appeal. The rebuttal is based pri-

marily on the argument that plaintiffs’ new-found concern

for delay is inconsistent with their prior conduct in prose-

cuting this action.

Although I am mindful that the record reveals that plain-

tiffs have not been diligent in prosecuting this case, I be-

lieve that certification is a proper exercise of discretion.

The factors articulated above indicate that the general

policy against piecemeal appeals is not vitiated by certify-

ing this claim as a final judgment. Although the fact that

this might present a “novel question” is not alone sufficient

to justify certification, see Vasquez, supra, 410 F. Supp. at

1387, I believe that some solicitude toward the EEKOC’s

position is desirable. Taking these two factors together, I

believe that this order should be certified as a final judg-

ment pursuant to Fed. R. Civ. P. 54(b). The Court will

enter an order to that effect.

Dated: April 30, 1979.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Crvm Acrion No. 75-1870

INTERNATIONAL Union OF ELECTRICAL,

Rapio aND Maons3we WorkKERsS,

AFL-CIO, CLU, an UNINCORPORATED

ASSOCIATION, ET AL., Plaintiffs,

Vv.

WeEstinaHouse Exectric

CoRPORATION, A CORPORATION,

Defendant.

Rule 54(b) Certification

Curankson §. Fisuer, Chief Judge, United States District

Court, District of New Jersey

Dated and Filed: April 30th, 1979.

With respect to the issue determined by partial sum-

mary judgment in favor of defendant on Count II of the

complaint pursuant to an opinion, filed February 8, 1979,

and order, entered March 14, 1979, it is CERTIFIED, in

accordance with Rule 54(b), Fed. R. Civ. P.:

(1) That the Court has directed the entry of final judg-

ment in favor of the defendant on the relevant portions of

Count II of the complaint; and

(2) That the Court has determined that there is no just

reason for delay.

/s/ Cranxson S. FisHer

Chief Judge

United States District Court

District of New Jersey

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-1893 and 79-1894

INTERNATIONAL UNION OF ELECTRICAL, RA-

DIO AND MACHINE WORKERS, AFL-CIO-CLC,

an unincorporated association, INTERNATIONAL

UNION OF ELECTRICAL, RADIO AND MaA-

CHINE WORKERS, AFL-CIO-CLC, LOCAL 449,

an unincorporated association, INTERNATIONAL

UNION OF ELECTRICAL, RADIO AND MaA-

CHINE WORKERS, AFL-CIO-CLC, LOCAL 627,

an unincorporated association, H. J. ADAMS, GE-

NEVIEVE ARNETT, JOSEPHINE BAKER,

MARGE DINNAN- BROPHY, HENRIETTA

BROWN, DOROTHY M. BURTON, MINNIE

CHATMAN, MARY E. COBB, A. CONTENTO,

MELVINA COOPER, JEAN CORBIN, NORMA

DOYLE, ELEANOR DYE, TANYA FOURSHEE,

D. FOWLER, DOROTHY GAINES, MARTHA

GANT, MADELINE GIESE, L. M. HARRIS,

DOROTHY HAYES, ELEANOR HUNKER, PAU-

LINE LEE, J. LINDENTHAL, OLLIE LITTLE,

MADELINE MARTINO, D. P. MASSI, RENA

MCLEOD, S. MCNEIL, PATTI MITCHELL, RO-

BERTA MOORE, MABEL MORRELL, MILDRED

OCIKI, HELEN O’LOUGHLIN, MARY PFISTER,

ANN RAHO, R. RAINEAR, P. RUTOWSKI, LO-

RETTA RYAN, J. L. SHELDON, V. VAUGHN,

HELEN WALSH, and SHIRLEY WATKINS, on

behalf of themselves and on behalf of all persons

similarly situated,

WESTINGHOUSE ELECTRIC CORPORATION

a corporation

International Union of Electrical,

Radio and Machine Workers, AFL-CIO,

CLC (“IUE”) and Locals 449 and 627,

Appellants in 79-1893

Marge Brophy, Henrietta Brown,

Melvina Cooper, Ann Raho Frazier and

Helen Walsh, on behalf of themselves

and the class they represent,

Appellants in 79-1894

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 75-1870)

Argued: March 20, 1980

Before: SEITZ, Chief Judge,

VAN DUSEN and HIGGINBOTHAM, Circuit Judges

(Opinion Filed August 1, 1980)

MICHAEL H. GOTTESMAN

FRANK PETRAMALO, JR.

JEREMIAH A. COLLINS

Bredhoff, Gottesman, Cohen

& Weinberg

1000 Connecticut Ave., N.W.

Washington, D.C. 20036

SIDNEY L. REITMAN

JESSE H. STRAUSS

Kapeljohn, Lerner, Roitman & Maisel

24 Commerce Street

Newark, New Jersey 07102

Attorneys for Individual Appellants

WINN NEWMAN

CAROLE W. WILSON

1126 Sixteenth Street, N.W.

| Washington, D.C. 20036

RICHARD B. SOBOL (Argued)

ANN H. FRANKE

_ Sobol & Trister

910 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Union Appellants

LEROY D. CLARK (Argued)

General Counsel

JOSEPH T. EDDINS

Associate General Counsel

BEATRICE ROSENBERG

Assistant General Counsel

VINCENT J. BLACKWOOD

Attorney

Equal Employment Opportunity

Commission

2401 E Street, N.W.

Washington, D.C. 20506

DREW S. DAYS, III

Assistant Attorney General

DAVID L. ROSE

SANDRA L. HUGHES

Attorneys

Department of Justice

Washington, D.C. 20530

Attorneys for Amici Curiae

Equal Employment Opportunity

Commission and the United States

VIRGINIA FENTON

Carpenter Bennett & Morrissey

744 Broad Street

Newark, New Jersey 07012

STUART I. SALTMAN

Westinghouse Electric Corporation

Room 1209 Westinghouse Building

Pittsburgh, Pennsylvania 15222

WALTER P. DeFOREST (Argued)

PETER D. POST

MARTHA HARTLE MUNSCH

Reed Smith Shaw & McClay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

Attorneys for Appellee

Westinghouse Electric Corporation

ROBERT E. WILLIAMS

DOUGLASS MCDOWELL

McGuiness & Williams

1015 Fifteenth Street, N.W.

Washington, D.C. 20005

Attorneys for Amicus Curiae

Equal Employement Advisory

Council

NORMAN REDLICH

Co-Chairman

NORMAN J. CHACHKIN

RICHARD T. SEYMOUR

Staff Attorneys

Lawyers’ Committee for Civil

Rights Under Law

733 Fifteenth Street, N.W.

Washington, D.C, 20005

Attorneys for Amici Curiae

Lawyers’ Committee for Civil

Rights Under Law, et al.

OPINION OF THE COURT

A, LEON HIGGINBOTHAM, JR., Circuit Judge.

The plaintiffs in this case brought suit alleging, in-

ter alia, that the Westinghouse Electric Corporation

(Westinghouse or the company) had set the wage rates

lower for those job classifications which were predomi-

nantly filled by females than the wage rates for those job

classifications which were predominantly filled by

males. Plaintiffs claimed that this disparity was attribut-

able to the fact that the company deliberately paid lower

wages for those types of work which would be done pre-

dominantly by women. They claimed this disparity is in

violation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. §§2000e-2 - 2000h-6.' The district

1. This action was originally part of a larger action filed in the

Western District of Pennsylvania which alleged similar discrimina-

tory practices at numerous Westinghouse facilities. The counts in-

volving the New Jersey plants were severed and transferred to the

District of New Jersey. The allegations relating to the New Jersey

plants asserted that Westinghouse had violated Title VII by:

(a) paying [women] unequal pay in that male employees per-

forming the same or substantially the same work receive higher

pay; (b) paying |women] lower rates of pay than would be paid

|them] if |their| skill, effort and responsibility were evaluated

on the same basis as is used in evaluating work performed by

males; and (c) failing to afford |women] the rights of promotion

and transfer to better paying jobs on the same basis as males;

and (d) otherwise affording [women] unequal compensation,

terms, conditions and privileges of employment because of

[their] sex.

Count Two, Complaint, 132, reprinted in App., at 25.

It also alleged that Westinghouse:

(1) had denied members of the plaintiff class “|t}he opportuni-

ty to work and at the same time afforded all male employees a

full eight hour shift and in some instances afforded male em-

ployees additional overtime work", Count Three, Complaint,

144,

court held that Title VII did not prevent sex discrimina-

tion in setting wage rates for different categories of jobs

unless it could be shown that the jobs, regardless of the

reason for their classification, involved equal or substan-

tially equal work. Because the plaintiffs had stated that

they did not intend to prove that the jobs predominantly

filled by women were the same as the jobs predominant-

ly held by men, the court granted Westinghouse’s mo-

tion for partial summary judgment. The plaintiffs

appealed.

The instant case pushes us to the edge of subtle

concepts of statutory construction. It involves sophisti-

cated aspects of personnel policies and job classifica-

tions and it rests on a legislative history which is not to-

tally free of ambiguity. Thus, at the outset it is essential

that we make clear what is not involved in this case.

Westinghouse is not being charged with the type of dis-

crimination where different wages have been paid to

men and women who are in the same classification and

who perform the same work. For any classification

which was predominantly filled by women, Westing-

house paid the same wage to any male who might work

within that same classification. The problem here is that

Westinghouse allegedly used a system which set the

wage rates lower for any classification if the group cov-

NOTE 1 — (Continued)

(2) had denied members of the plaintiff class “the opportunity

to work 8 hours per day as did all male employees", Count Four,

Complaint 949; and

(3) had discriminated against one of the named plaintiffs “by

requiring her to stop work thereby depriving her of holiday pay,

as well as her regular weekly wages, credited service, and other

benefits in that she was only in her sixth month of pregnancy

and was able, willing and desirous of continuing to work and

had the approval of her personal —_— for such work.”

Count Five, Complaint 953.

App., at 25-32

ered within that category was predominantly female.

Under the applicable law ii is clear that Westinghouse

could not create job classifications whereby different

wages were paid to one group solely because of consider-

ations of religion, race or national origin.” The statutory

issue here is whether Congress intended to permit West-

inghouse to willfully discriminate against women in a

way in which it could not discriminate against blacks or

whites, Jews or Gentiles, Protestants or Catholics, Ital-

ians or Irishmen, or any other group protected by the

Act. Because we hold that this alleged intentional dis-

crimination in formulating classifications of jobs violates

Title VII, we will reverse.

Westinghouse’s present wage structure, according

to the plaintiffs,* is derived from a wage structure West-

inghouse established in the late 1930’s which was de-

scribed in Westinghouse’s Industrial Relations Manual

2. 42 U.S.C §2000e-2 (emphasis added) provides in pertinent

part:

(a) It shall be an unlawful employment practice for an emp-

loyer —

(1) to fail or refuse to hire or to discharge any individ-

ual, or otherwise to discriminate against any individual with re-

spect to his compensation, terms, conditions, or privileges of

employment, because of such individual's race, color, religion,

sex, or national origin; or

(2) tolimit, segregate, or classify his employees or ap-

plicants for employment in any way which would deprive or

tend to deprive any individual of employment opportunities or

otherwise adversely affect his status as an employee, because of

such individual's race, color, religion, sex, or national origin.

3. On a motion for summary judgment all factual disputes are

resolved against the moving party. We have therefore adopted the

plaintiffs’ version of the facts in our resolution of this appeal. See

Adickes v. S. H. Kress and Co., 398 U.S. 144, 158-59 (1970).

Wage Administration, Part 3, section 3 (1939), reprinted

in Appendix at 110. At that time all of the job classifica-

tions at Westinghouse’s Trenton, New Jersey plant were

allegedly segregated by sex. The “female” jobs included

assembly line jobs, sub-assembly jobs and quality con-

trol jobs. The “male” jobs included janitor, forklift opera-

tor, warehouseman, various material handling jobs, and

craft jobs. For simplicity we will refer to those job classi-

fications which are predominantly filled by women as

“female” jobs and those filled predominantly by men as

“male” jobs. The 1939 manual explains that the com-

pany first “point-rated” all of its jobs taking into account

the knowledge and training required, and the specific

demands and responsibilities of the job. It then assigned

each job a numerical value, based on an evaluation of

these three factors. Next each job was assigned a

“grade” based on its point rating and “keysheets” were

developed which set forth the hourly wage for jobs at

each labor grade. The plaintiffs contend that the wage

rates for female jobs were set lower than the rates for

male jobs which had received the same point rating. In-

deed, Westinghouse’s manual stated, “The rate or range

for Labor Grades [for women] do not coincide with the

values on the men’s scale. Basically then, we have an-

other wage curve or Key Sheet for women below and not

parallel with the men’s curve.” Id. at 158a (emphasis

added).

In 1965 the company established a unitary key

sheet in which the grades had no explicit sexual desig-

nation. The plaintiffs contend that the new wage scale,

which is still in use, embodies the deliberately discrimi-

natory policy of the prior plan. In support of their view,

they contend that Westinghouse expanded the number

of labor grades from nine to thirteen and generally ac-

corded female jobs labor grades in the new scale below

those of male jobs even though these jobs had been at

corresponding labor grades before the merger. They also

9¢

point to the fact that the vast majority of the women at

the Trenton plant are still employed in the female jobs.

Their records show employee assignments at the Tren-

ton plant as of November 30, 1975 as follows:

Westinghouse - Trenton Plant

Male Female

LG1 0 6

LG2 0 33

LG3 1 125

LG4 0 18

LG5 21 16

LG6 4 14

LG7 3 0

LG8 2 0

LG9 3 1

LG10 4 0

iG11 0 0

LG12 19 0

LG13 19 ‘i

76 213

Brief for Appellants at 10-11. This table shows that with

a single exception the 183 employees working at Labor

Grades 1 through 4 were women, the grades into which

the female jobs were placed in 1965. Thus, eighty five

percent of the women working in the plant in 1975 were

assigned to these jobs. Although the plaintiffs acknowl-

edge that “there have been some changes in job content

over the years, and some rate adjustments,” in their view

“the changes have not eradicated the wage inequities es-

tablished by the [1930] system.” Id. at 10.

The district court held that Title VII had not been

violated even if the wage scale had been set in the man-

ner described by the plaintiffs. It reasoned that because

of the Bennett Amendment, which is included in section

703(h) of Title VII, 42 U.S.C. §2000e-2(h), sex-based

discrimination in compensation violates Title VII only if

10¢

it also violates the Equal Pay Act of 1963, 29 U.S.C.

§206(d) (Equal Pay Act). The court held that the Equal

Pay Act proscribes discriminatory compensation only

when it is shown shown that the plaintiff performs the

same work or substantially the same work of other em-

ployees. Since the plaintiffs in this case agreed that their

suit did not involve classifications involving the same

work or substantially the same work, the district court

ruled that the plaintiffs did not have a cause of action

under Title VII. International Union of Electrical Work-

ers v. Westinghouse Electric Corp., 19 FEP Cases 450

(D.N.J. 1979) [hereinafter IUE I]. The late Judge

Barlow, one of our most distinguished trial judges, sum-

marized his holding by stating, “In conclusion, there-

fore, we have ruled that allegations and proof of unequal

pay for unequal, but comparable, work does not state a

claim upon which relief can be granted. . . .” Id. at

457.

In response to a motion by the plaintiffs, the district

court entered final judgment on this claim and certified

an order so that it could be appealed pursuant to Rule

54(b), Fed. R. Civ.Proc.* International Union of Electri-

4. Fed. R. Civ. Proc. Rule 54(b) provides:

(b) JUDGMENT UPON MULTIPLE CLAIMS OR INVOLV-

ING MULTIPLE PARTIES. When more than one claim for re-

lief is presented in an action, whether as a claim, counterclaim,

cross-claim, or third-party claim, or when multiple parties are

involved, the court may direct the entry of a final judgment as

to one or more but fewer than all of the claims or parties only

upon an express determination that there is no just reason for

delay and upon an express direction for the entry of judgment.

In the absence of such determination and direction, any order

or other form of decision, however designated, which adjudi-

cates fewer than all the claims or the rights and liabilities of

fewer than all the parties shall not terminate the action as to

any of the claims or parties, and the order or other form of deci-

sion is subject to revision at any time before the entry of judg-

ment adjudicating all the claims and the rights and liabilities of

all the parties.

?-%

lle

cal Workers v. Westinghouse Electric Corp., 19 FEP

Cases 1028 (D.N.J. 1979) [hereinafter JUE II}.

II.

Because it affects our jurisdiction we asked the par-

ties to brief the question of whether the district court

properly certified the judgment pursuant to Rule 54(b).

We conclude that the district court did not abuse its

discretion when it entered the final order. See

Curtiss-Wright Corp. v. General Electric Corp., 48

U.S.L.W. 4422 (S.Ct. Apr. 22, 1980). The district court

noted that as a result of the earlier decision, [UE I, the

claim of sex-based wage discrimination was terminated

and the issue would not be raised a second time after a

trial on the remaining claims. Noting that the claim was

one of statutory construction and did “not deal with the

factual issues at the heart of the unadjudicated claims,”

the court felt the issue was “sufficiently distinct to per-

mit certification.” [UE II, 19 FEP Cases at 1029-30. The

court also took into consideration the fact that the EEOC

had argued that the claim involved a “ ‘novel issue’

which is likely to recur.” Id. at 1029. We agree that these

factors weigh in favor of certification and will therefore

affirm the entry of the final order.

III.

At the heart of this appeal lies an amendment to Ti-

tle VII which was introduced by Senator Bennett of

Utah in the final days of the passage of the Civil Rights

Act of 1964. The Bennett Amendment (the Amend-

ment), which was adopted as introduced by Senator

Bennett and included in section 703(h) of Title VII,

provides:

It shall not be an unlawful employment practice un-

der this subchapter for an employer to differentiate

- '

12¢

upon the basis of sex in determining the amount of

the wages or compensation paid or to be paid to em-

ployees of such employer if such differentiation is

authorized by the provisions of section 206(d) of Ti-

tle 29.

42 U.S.C. §2000e-2(h). Section 206(d) of Title 29, the

Equal Pay Act of 1963, prosc1ilx*s sex-based discrimina-

tion in compensation for the same or substantially the

same work except when the differential is the result of

“(i) a seniority system; (ii) a merit system; (iii) a system

which measures earnings by quantity or quality of pro-

duction; or (iv) a differential based on any other factor

other than sex.”° The dispute here is about what is

meant by the phrase in the Amendment “if such differ-

entiation is authorized by”.

This phrase could mean that except for the four

limitations of section 206(d), Title VII has as broad a

coverage on sex discrimination changes as it does in any

other case. Thus, other than the four exceptions of the

Equal Pay Act, there is no dilution of sex discrimination

coverage in Title VII cases. This argument could be

5. 29 U.S.C. §206(d) provides in pertinent part:

(d)(1) No employer having employees subject to any provi-

sions of this section shall discriminate, within any establish-

ment in which such employees are employed, between employ-

ees 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 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: 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.

13¢e

called the “broad coverage position,” and is asserted by

the plaintiffs and the EEOC. On the other hand, the lan-

guage in the Amendment could be construed to deny

sex discrimination cases the “broader coverage” and to

limit the prohibition against sex-based discrimination in

wages to situations where the employees are performing

the same or substantially the same work, in the manner

that the Equal Pay Act is limited. This later view is urged

by Westinghouse.

We have not found the resolution of this dispute to

be a simple one. Our research has not revealed any sin-

gle document or statement which unambiguously gives

the Amendment meaning. Yet, each document we have

found pushes us slowly yet firmly to the conclusion that

the Bennett Amendment merely incorporates into Title

VII the four exceptions outlined in the Equal Pay Act,

the “broader coverage position”.

At the outset we note that the construction urged by

Westinghouse would result in a substantial limitation on

the scope of Title VII’s power to address the problems of

sex-based discrimination in employment.® Westing-

house’s position would permit employers to discriminate

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

(a) It shall be an unlawful employment practice for an em-

ployer —

(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 employ-

ment, because of such individual's race, color, religion, sex, or

national origin; or

(2) to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to de-

prive any individual of employment opportunities or otherwise

adversely affect his status as an employee, because of such in-

dividual’s race, color, religion, sex, or national origin.

‘\%

( 14e

against women even though they could not pursue simi-

lar discriminatory practices against others on account of

race, religion or national origin. As an example, it is clear

that Title VII prohibits an employer from paying more

per hour to welders than plumbers if the reason for the

employer paying higher wages to the welder is that the

majority of the welders are Protestants and that the ma-

jority of the plumbers are Catholics. In such a case an

employer would be “classify|ing] his employees. . . in

[a] way which would deprive any individual of employ-

ment opportunities [high wages]. . . because of such

individual’s. . . religion.” 42 U.S.C. §2000e-2(a). While

Westinghouse presumably would not challenge the ille-

gality of the scheme outlined above, it asserts that the

scheme would be permissible if the reason for the wage

disparity is that the majority of welders are men and the

majority of plumbers women. The Supreme Court has

never ruled on the statutory issue raised in this case, but

in dicta in Title VII cases, the Court tends to refer to dis-

crimination on the basis of race, religion, sex, or national

origin as they are equally nefarious and equally prohibit-

ed. For in Franks v. Bowman Transportation Co., 424

U.S. 747, 763 (1976) (emphasis added) (citations omit-

ted), the Supreme Court stated:

We begin by repeating the observation of earli-

er decisions that in enacting Title VII of the Civil

Rights Act of 1964, Congress intended to prohibit

all practices in whatever form which create inequal-

ity in employment opportunity due to discrimina-

tion on the basis of race, religion, sex, or national

origin,. . . and ordained that its policy of outlawing

such discrimination should have the “highest

priority”... .

In the absence of explicit statutory language or Supreme

Court holdings to the contrary, we are hesitant to con-

15e

clude that Title VII would allow discriminatory behavior

on the basis of sex, when the same behavior would be

prohibited if made on the basis of race, religion or na-

tional origin.’

We start our inquiry, as all inquiries involving statu-

tory construction should, with the language of the stat-

ute. Lewis v. United States, 48 U.S.L.W. 4205, 4207

(S.Ct. Feb. 27, 1980). The Bennett Amendment states

that differentiations “authorized by” the Equal Pay Act

are not unlawful. Normally the term “authorized” is

used to describe something that is endorsed or expressly

permitted and not, as Westinghouse suggests, some-

thing which is merely not prohibited.* Thus, the plain

language of the Amendment lead us to the conclusion

that the Amendment dilutes Title VII only to the extent

that it incorporates the four wage differentials expressly

endorsed or permitted by the Equal Pay Act.

Westinghouse asserts that other language in sec-

tion 703(h), of which the Bennett Amendment is a part,

7. We reject the argument made by amicus Equal Employ-

ment Advisory Council that our task is easier because it is clear that

Congress wished to discourage courts from becoming involved in

“massive job evaluation trial[s]" and Congress therefore limited the

scope of Title VII’s prohibition against sex discrimination. Since

Congress was willing to permit “massive job evaluation trial|s]” if

racial, religious or ethnic discrimination was charged, we cannot

presume that they would be fearful of such trials involving sex dis-

crimination.

8. Webster’s Third New International Dictionary 146-47

(1961) defines “authorize” in the following manner:

la: to endorse, empower, justify, or permit by or as if by some

recognized or proper authority. . .:SANCTION.. .b. . .to

furnish grounds for: JUSTIFY. 2. ..tovouchfor...3...

to give legality or effective force .o. . . 4a: to endow with au-

thority or effective power, warrant, or right: appoint, empower,

or warrant regularly, legally, or officially. . . b: to grant or allot

by proper authority . .

l6e

suggests a contrary interpretation, for this language al-

ready provides for three of the four exceptions to the

Equal Pay Act.? Westinghouse argues that most of the

Bennett Amendment would be superfluous if it were

limited to the four exceptions, and thus it contends the

language of the Act supports its position. We do not

agree. We find it more reasonable to conclude that the

repetition of the exceptions in the Amendment ensured

that the two statutes would be interpreted in the same

manner. With the Bennett Amendment the Equal Pay

Act exceptions became “applicable to Title VII as well.”

General Electric v. Gilbert, 429 U.S. at 144. (Equal Pay

Act provisions on pregnancy benefits are controlling). By

making the acts coterminous Congress eliminated the

possibility that an employer would be subject to

conflicting regulations. Thus, the language is not

surplusage.

Westinghouse argues that we should apply the in

pari materia canon of statutory construction. Under this

canon, “a statute dealing with a narrow, precise, and

specific subject is not submerged by a later enacted stat-

ute covering a more generalized spectrum. ‘Where there

is no clear intention otherwise, a specific statute will not

be controlled or nullified by a general one, regardless of

9. Compare Title VII, 42 U.S.C. §2000e-2(h):

(h) Notwithstanding any other provision of this

subchapter, it shall not be an unlawful employment practice for

an employer to apply different standards of compensation, or

different terms, conditions, or privileges of employment pursu-

ant to a bona fide seniority or merit sysem, or a system which

measures earnings by quantity or quality of production or to

employees who work in different locations, . . .

with the Equal Pay Act, 29 U.S.C. §206(d):

except where such payment is made pursuant to (i) a seniority

system; (ii) a merit system; (iii) a system which measures earn-

ings by quantity or quality of production; or (iv) a differential

based on any other factor other than sex. .. .

*.%

17e

the priority of enactment.’” Radzanower v. Touche,

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

v. Mancari, 417 U.S. 535, 550-51 (1974). We decline to

apply this canon, for it is inconsistent with the Supreme

Court’s caution that remedies for employment discrimi-

nation “supplement” each other and should not be con-

strued so as to ignore the differences among them.

Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49 &

n. 9 (1974). Further it conflicts with another rule of stat-

utory construction, namely, “where a statute with re-

spect to one subject contains a specific provision, the

omission of such provision from a similar statute is sig-

nificant to show a different intention existed.” Richerson

v. Jones, 551 F.2d 918, 928 (3d Cir. 1977), quoting, Gen-

eral Electric Co. v. Southern Construction Co., 383 F.2d

135, 138 & n. 4 (5th Cir. 1967); Tooahnippah v. Hickel,

397 U.S. 598, 606-07 (1970). Thus, we conclude that

the plain language of the statute suggests that only the

four exceptions of the Equal Pay Act were incorporated

as limitations on Title VII.

The legislative materials on the Bennett Amend-

ment are remarkable only for their equivocacy and

turbidity. As has oft been noted, sex was added as a pro-

tected classification late in the debate on the Civil Rights

Act as the result of an amendment proposed by Repre-

sentative Smith of Virginia. Probably because sex dis-

crimination was not contemplated as part of the original

bill, the “legislative history of Title VII's prohibition of

sex discrimination is notable for its brevity.” General

Electric v. Gilbert, 429 U.S. at 143. The Bennett Amend-

ment was not part of the Civil Rights Act when it had

first passed the House and was sent to the Senate, al-

though the Act at that time included the prohibition

against sex discrimination. The Amendment was includ-

ed later on the floor of the House, after cloture was

18¢

adopted, following a very brief colloquy. Only a few legis-

lative materials are available. Some are ambiguous and,

as the parties before us have demonstrated, an ingenious

and intelligent mind may find support in all of them for

either interpretation. After our review, however, we con-

clude that on balance they show that Congress intended

the more limited scope urged by the plaintiffs.

The first discussion of the issue of discrimination in

compensation based on sex is presented by Senator

Clark, one of the bill’s floor managers. In April 1964 he

introduced into the Congressional Record a memoran-

dum which included his answers to questions raised by

Senator Dirkson about the Civil Rights Act.'° There he

stated: “The standards in the Equal Pay Act for deter-

mining discrimination as to wages, of course, are appli-

cable to the comparable situation under Title VII.” 11

Cong. Rec. 7217 (1964).

This passage is ambiguous as it can be interpreted

to mean that Title VII is only as broad as the Equal Pay

Act. It is, however, equally possible that Senator Clark

simply meant that when equal work challenges were

made, the Equal Pay Act was controlling and that he was

10. The passage reads in its entirety:

Objection: The sex antidiscrimination provisions of the bill du-

plicate 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 classi-

fied as to sex, except where there is a rational basis for discrimi-

nation on the ground of bona fide occupational qualification.

The standards in the Equal Pay Act for determining discrimina-

tion as to wages, of course, are applicable to the comparable sit-

uation under Title VII.

110 Cong. Rec. 7217 (1964),

a> i

19¢

not addressing the problem of discrimination of the sort

alleged here. The memorandum is not helpful as a guide

to interpret the Bennett Amendment, however, for the

comment was made on April 4th, and the Bennett

Amendment was not introduced until two months later,

June 12, 1964. The passage is therefore only helpful to

the extent that it suggests that there was some interest

in Congress in the interrelationship of the two acts.

The second passage records the colloquy which oc-

curred when Senator Bennett introduced his amend-

ment to the Senate and it was subsequently approved. "?

11. The passage reads in its entirety:

Mr. BENNETT, Mr. President, I yield myself 2 minutes,

I call up my amendment No. 1051 and ask that it be read.

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 unlaw-

ful employment practice under this title for any employer to dif-

ferentiate 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 provi-

sions 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 yearning 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 became ef-

fective only yesterday.

By this time, programs have been established for the effective

administration of this act. Now, when the civil rights bill is un-

der consideration, in which the word “sex” has been inserted in

many places, I do not believe sufficient attention may have

been paid to possible conflict 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.

‘\

20¢

Introducing the bill, Senator Bennett explained, “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.” Senator Dirkson stated in response, “The

Fair Labor Standards Act [Equal Pay Act] carries out

certain exceptions. All that the pending amendment

does is recognize those exceptions, that are carried in

the basic act.” Id. at 13647. The import of these com-

ments is that the Amendment was merely intended to

carry forward tiie exceptions of the Equal Pay Act. In our

analysis we give this passage special significance, as this

is the only explanation provided to the body which voted

on the Amendment.

The third item is Representative Celler’s July 2nd

explanation to the House of the changes the Senate

NOTE 11 — (Continued)

I understand that the leadership in charge of the bill have

agreed to the amendment as a proper technical correction of

the bill. If they will confirm that understand |sic]}, 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. | believe it is needed. I thank him for his thoughtful-

ness. The amendment is fully acceptable.

Mr. DIRKSEN. Mr. President, | 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

exceptions.

All that the pending amendment does is recognize those excep-

tions, 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. )

The amendment was agreed to.

110 Cong. Rec. 13647 (1964).

made in the House bill, including the Bennett Amend-

ment. There he stated, “Second. [The Senate amend-

ment] [p]rovides that compliance with the Fair Labor

Standards Act as ai ‘ended satisfies the requirement oi

the title barring discrimination because of sex — section

703(b).” Id. at 15896. The district court suggested that

this showed that Title VII was meant to be no broader

than the Equal Pay Act. IUE I, 19 FEP Cases at 454. An

equally plausible construction is that compliance with

the “equal work” requirements of the Equal Pay Act met

Title VII’s requirement on that issue only. We are per-

suaded that Representative Celler must have intended

the later interpretation since Title VII proscribes a broad

range of gender-based discrimination which is not

barred by the Equal Pay Act, such as discriminatory pro-

motions, transfers and firing.

Finally, there are two items written after the Civil

Rights Act was passed. We view them cautiously as we

are mindful of the Supreme Court’s warning in Interna-

tional Brotherhood of Teamsters v. United States, 431

U.S. 324, 354, n. 39 (1977), that “[t]he views of the

members of a later Congress, concerning different sec-

tions of Title VII, enacted after this Litigation was com-

menced, are entitled to little if any weight.” The first is a

memorandum introduced into the Congressional Record

by Senator Bennett, in June 1965. The final words of the

memorandum state explicitly, “Simply stated, the

amendment means that discrimination in compensation

on account of sex does not violate Title VII uniess it also

violates the Equal Pay Act.” 111 Cong. Rec. 13359

(1965). '?

12. His explanation in full is:

Relation of Title VII to the Equal Pay Act: An Explanation of

the Bennett Amendment

Section 703(h) of the Civil Rights Act of 1964 states: “It shall

not be an unlawful employment practice under this title for any

employer to differentiate upon the basis of sex in determining

22¢

The plaintiffs have pointed us to a sentence earlier

in the memorandum which states that the Amendment

merely refers to the exemption of certain employees

from Equal Pay Act coverage and to the four exceptions

of the Equal Pay Act. They argue that this shows Sena-

tor Bennett felt the Amendment referred only to the ex-

ceptions.'* We cannot agree. The final statement is

quite explicit and ‘it does support Westinghouse’s view.

Nevertheless, we are not persuaded that this passage re-

presents the intent of Congress at the time it passed the

Amendment. We note that it differs from Senator

Bennett’s earlier explanation, which was the explana-

tion relied on by the Congressmen who approved the

NOTE 12 — (Continued)

the amount of the wages or compensation paid or to be paid to

employees of such employer if such differentiation is author-

ized by the provisions of section 6(d) of the Fair Labor Stand-

ards Act of 1938, as amended (29 U.S.C. 206(d)).”

The amendment speaks in terms of a “differentiation * * * au-

thorized by the provisions of section 6(d) of the Fair Labor

Standards Act.”

Section 6(d) authorizes two things:

1. Wage cifferentials on equal jobs made pursuant to (i) a sen-

iority system; (ii) a merit system; (iii) a system which measures

earnings by quantity or quality of production; or (iv) a differen-

tial based on any other factor other than sex.

The amendment therefore means that it is not an unlwful em-

ployment practice; (a) to differentiate on the basis of sex in de-

termining the compensation of white collar and other employ-

ees who are exempt under the provisions of the Fair Labor

Standards Act; or (b) to have different standards of compensa-

tion for nonexempt employees where such differentiation is not

prohibited by the equal pay amendment to the Fair Labor

Standards Act.

Simply stated, the amendment means that discrimination in

compensation on account of sex does not violate Title VII un-

less it also violates the Equal Pay Act.

111 Cong. Rec. 13359 (1965).

13. See note 12, supra, for text of memo.

23¢e

Amendment. Further, there was very little discussion of

this ex post facto history at the time it was introduced

and it was not voted upon. We agree with the Ninth Cir-

cuit’s interpretation of the significance of this passage.

In Gunther v. County of Washington, 22 FEP 1650,

1652 (9th Cir. 1980), affing upon petition for

rehearing, 602 F.2d 882 (1979), that court stated:

As the amendment’s sponsor, Senator Bennett’s un-

derstanding of the amendment might have been en-

titled to some weight if it had been expressed con-

temporaneously with the passage of the legislation.

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 intro-

duced 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 occurring “hours” after pas-

sage of Bennett Amendment is not part of amend-

ment’s legislative history). Either from a legal

standpoint or as a practical matter, Senator

Bennett’s statement cannot express what was on

Congress’ collective mind when it acted a year earli-

er. If Senator Bennett’s “clarifying” statement has

any significance, 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 written after the Act was passed is

contained in a 1977 Senate Report on amendments to

Title VII.'* The Senate Committee states, “It is the com-

14. The Report states in pertinent part:

The Supreme Court seemed to believe, despite apparently con-

tradictory Equal Pay Act regulations, that the discrimination in

24e

mittee’s opinion that [an] application of the Bennett

amendment which assumes that the provision insulates

from Title VII all compensation and fringe benefit pro-

grams which do not also violate the Equal Pay Act is not™ »

correct”. S. Rep. No. 95-311, 95th Cong., Ist Sess. at 7 — iv

(1977). We note the report was written in response to a

Supreme Court decision interpreting section 703(h) in a

manner which the Senate committee thought was con-

trary to the view of Congress. The earlier legislative his-

tory is consistent with the committee's later statement

and supports the plaintiffs’ position. We, however, have

the same difficulty with this passage that we have with

Senator Bennett’s memorandum. It is ex post facto, and

it was neither voted upon nor approved by the Congress

as a whole. Thus, we do not rely on it.

About the time of the passage of the Bennett

Amendment, June 12, 1964, a number of other amend-

ments which would have limited the scope of Title VII,

and which would have had a much smaller potential im-

pact on the scope of Title VII’s coverage, were rejected

by the Senate.'° Between June 4 and i June 17, when the

NOTE 14 — (Continued)

question in Gilbert would be authorized by the Equal Pay Act.

See 29 C.F.R. 800.151. It is the committee's opinion that this

application of the Bennett amendment which assumes that

that provision insulates from Title VII all compensation and

fringe benefit programs which do not also violate the Equal Pay

Act is not correct; by expressly precluding reliance on section

703(h) in this context, therefore, the committee merely intends

to insure that employers may not rely on the Equal Pay Act to

prevent the correction of pregnancy discrimination under Title

VIL. ‘

S. Rep. No. 95-331, 95th Cong., Ist Sess. at 7 (1977).

15. On June 9, the Senate debated and rejected Amendments

606 and 898. 110 Cong. Rec. 13085, 13093 (1964). On June 22, the

Senate debated and rejected Amendments 569 and 605. Id. at

13492, 13505. On June 12, the Senate debated and rejected

Amendments 607 and 962. Id. at 13648-52. On June 13, the Senate

25¢

Civil Rights Act was approved by the Senate, twenty-

three amendments were rejected. Among them was an

amendment to permanently restrict Title VII’s coverage

to establishments with 100 or more employees (No.

606), 110 Cong. Rec. 13093 (1964); Senator Tower's

original testing amendment (No. 605), id. at 13505; an

-amendment requiring that Equal Employment Opportu-

nity Commission (EEOC) employees identify them-

selves when serving as investigators (No. 963); id. at

13650: an amendment expressly permitting EEOC em-

ployees to give congressional testimony (No. 922), id. at

14193, 14196; an amendment prohibiting the EEOC

from withholding any evidence, testimony or records

from any court or congressional committee (No. 550),

id. at 13910; and an amendment allowing the EEOC to

elect its own chairman and vice chairman, rather than

providing for their appointment by the President (No.

846), id. at 13945-46. We think that the congressional

opposition to these minor amendments suggests that the

Bennett Amendment was not intended to limit Title

VII's coverage as Westinghouse urges for the Amend-

ment probably would have been more widely disputed

and discussed if that was the intent. Again, this evidence

is not decisive to our decision, but it supports the plain-

tiffs’ interpretation.

In summary we conclude that the legislative history

shows that the Bennett Amendment merely incorporat-

ed the four exceptions of the Equal Pay Act into Title VII

without otherwise limiting Title VII's coverage.

debated and rejected Amendment 963. Id. at 13650, 13696. On

June 15, the Senate debated and rejected Amendments 519 and

547. Id. at 13825-26 and 13838. On June 16, the Senate debated

and rejected Amendments 550, 846, 855, and 1020. Id. at 13910

and 13943-46. On June 17, the Senate debated and rejected

Amendments 590, 847, 922, 1021, 1022, 1023 and 1024. Id. at

14179, 14182-83, 14186-87, 14191-93, and 14196-97.

26¢

The third group of materials we have used to

unravel the meaning of the Bennett Amendment are the

regulations and rulings of the EEOC, the regulatory

body charged with enforcing the Civil Rights Act. The

EEOC's regulations, issued in 1972, make it quite ex-

plicit that “the prohibitions ay:tinst discrimination based

on sex contained in Title VII is co-extensive 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”. 29 C.F.R. §1604.8

(1978). '®

The district court discounted these regulations be-

cause it felt that the regulations were inconsistent with

earlier EEOC regulations issued in 1965. It was the dis-

trict court’s view that the 1965 regulations stated that

the discriminatory wage sales were impermissible oniy if

the wage scales were also in violation of the Equal Pay

Act. 19 FEP Cases 454-56. The court held that earlier

:egulations were controlling, relying on General Electric

v. Gilbert.'” In Gilbert the Supreme Court found that the

16. 29 C.F.R. §1604.8 (1978) provides in full:

Relationship of Title VII to the Equal Pay Act.

(a) The employee coverage of the prohibitions against discrim-

ination 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.

(b) By virtue of Section 703(h), a defense based on the Equal

Pay Act may be raised in a proceeding under Title VII.

appropriate consideration to the interpretations of the Adminis-

trator, Wage and House Division, Department of Labor, but will

not be bound thereby.

17, The 1965 regulations provided:

(a) Title VII requires that its provisions be harmonized with

the Equal Pay Act (section 6(d) of the Fair Labor Standards Act

27¢

EEOC’s newer regulations covering pregnancy benefits

“flatly contradict|ed] the position which the agency had

enunciated at an earlier date, closer to the enactment of

the governing statute.” 429 U.S. at 142. It held that the

newer regulations were therefore not entitled to the def-

erence normally afforded EEOC regulations. See Griggs

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

pretation of the Act by the [EEOC] is entitled to great

deference.” )

The rule set forth in General Electric v. Gilbert is

not applicable to these regulations. The 1965 regulations

stated that “with respect to situations to which both stat-

utes are applicable. . . the standards of the ‘equal pay for

equal work’ set forth in the Equal Pay Act” are applicable

to Title VII. 30 Fed. Reg. 14928 (1965). They do not

state that Title VII's scope is no broader than the Equal

Pay Act. Indeed, the regulation specifically provides that

of 1938, 29 U.S.C 206(d)) in order to avoid conflicting interpre-

tations 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 the prohibition against discrimi-

nation 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.

(b) Accordingly, the Commission will make applicable to equal

pay complaints filed under Title VII the relevant interpretations

of the Administrator, Wage and Hour Division, Department of

Labor. These interpretations are found in 29 Code of Federal

Regulations, Part 800 119-800.163. Relevant opinions of the

Administrator interpreting “the equal pay for equal work stand-

ard” will also be adopted by the Commission.

issuing an opinion on any matter covered by both Title VII and

the Equal Pay Act.

30 Fed. Reg. 14928 (1965),

2I8e

“discrimination in compensation because of sex is co-ex-

tensive with that of the other prohibition in section 703,

and is not limited by section 703(h) to those employees

covered by the Fair Labor Standards Act.” Id. Second,

and most important, the EEOC, in a number of cases de-

cided before the 1972 guidelines were issued, found Ti-

tle VII applicable to situations where the wage rates for

jobs held predominately by women were set lower than

the wage rates for jobs held predominantly by men. In

these cases the wage rates were lower because the jobs

were held predominantly by women and not because of

the job requirements. See, e.g., Decision No. 70-112,

1973 EEOC Decisions (CCH) 96108 (Sept. 5, 1969);

Decision No. 70-695, 1973 EEOC Decisions (CCH)

16148 (April 13, 1970). The EEOC’s position has been

generally consistent and thus the traditional deference

which courts give to agency regulations is to be given in

this case. See United States v. National Association of

Securities Dealers, Inc., 422 U.S. 694, 719 (1975)

(courts will give “considerable weight” to a “consistent

and longstanding interpretation by the agency ~harged

with administration of” that statute). Thus, we iind that

the EEOC regulations also support the plaintiffs |

construction.

The caselaw, for the most part, adds little to our in-

quiry. The Supreme Court’s references to the Equal Pay

Act in the context of Title VII are inconclusive and only

one decision by a Court of Appeals has squarely faced

the issue raised in this appeal. In that case, Gunther v.

County of Washington, the Ninth Circuit held that Title

VII was violated when wages for females were intention-

ally set, on the basis of sex, lower than wages for men

who held different jobs. We find the Gunther decision to

be persuasive and note that that court’s interpretation of

the Bennett Amendment’s legislative history is consist-

29¢e

ent with our own.'® The Tenth Circuit in a different fac-

tual setting held in Lemons v. Denver, 22 FEP Cases 959

(10th Cir. 1980), that Title VII did not prevent sex dis-

crimination in wages for comparable jobs. We note that

Lemons is distinguishable because the lower court found

that the city had not set the wages for women lower than

the wages for men on account of their sex. “ “The City

draws no distinction between male and female employ-

ees.’ 22 FEP Cases at 960 (quoting the district court’s

findings). The other cases in both the Courts of Appeals,

including this circuit, and the district courts are not

helpful because the issue raised by this case was not de-

cided and thus only address this issue in dicta.'®

18. Although it is not important to our decision, the facts of

Gunther demonstrate the difficulty with Westinghouse’s interpreta-

tion. The plaintiffs were female matrons and prison guards who as-

serted that they were paid lower wages than the male prison guards

on account of their sex. Earlier in Dothard v. Rawlinson, 433 U.S.

321 (1977), the Supreme Court had held that sex was a bona fide

occupational qualification for the position of a prison guard and

therefore women could lawfully, under certain circumstances, be

excluded from the positions held by men. Had the Ninth Circuit

found that Title VII permitted the alleged wage discrimination, the

women may have been Ieft without redress. They could neither sue

for higher wages, nor could they try to transfer to the higher paying

jobs to escape the alleged discrimination practices of the city.

19. In some of the cases the courts did not reach the issue, but

in dicta viewed the Bennett Amendment as being limited to the four

exceptions. E.g., Manhart v. City of Los Angeles Dept. of Power &

Water, 553 F.2d 581, 587-88, (9th Cir. 1976), aff'd and rev’d on oth-

er grounds, 435 U.S. 702 (1978); Fitzgerald v. Sirloin Stockade,

Inc., 22 FEP Cases 262, 267 (10th Cir. 1980); EEOC v. Aetna In-

surance Co., 22 FEP Cases 607, 611 n. 5 (4th Cir. 1980) (Equal Pay

Act claim only); Laffey v. Northwest Airlines, Inc., 567 F.2d 429,

446 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086 (1978). In other

cases, the courts stated in dicta that Title VII is limited to equal

work challenges. E.g., DiSalvo v. Chamber of Commerce of Greater

Kansas City, 568 F.2d 593, 596 (8th Cir. 1978); and Orr v. Frank R.

MacNeil & Son, Inc., 511 F.2d 166, 171 (5th Cir. 1975), cert. de-

nied, 423 U.S. 865 (1975). As we have noted, the issue has general-

‘%

30e

IV.

With the Civil Rights Act of 1964, Congress re-

leased a strong and forceful weapon against employment

discrimination. To paraphrase the Supreme Court’s

words: “It would be ironic indeed if [the Equal Pay Act,]

a law triggered by a Nation’s concern over centuries of

{sexual discrimination] and intended to improve the lot

of those who had ‘been excluded from the American

dream for so long’” were to lead to the contraction of

their rights under Title VII. United Steelworkers of

America v. Weber, 443 U.S. 193, 204 (1979), quoting

Senator Humphrey, 110 Cong. Rec. 6552 (1964). Noth-

ing we have found suggests that this act was to be weak-

ened so as to “authorize” the explicit discrimination in

compensation the plaintiffs assert that Westinghouse

has practiced. Moreover, we believe that the evidence

suggests otherwise.

Accordingly, we will reverse the judgment of the

district court and will remand for further proceedings.”°

NOTE 19 — (Continued)

ly not been directly confronted for adjudication on a record similar

to the present one. A variety of reasons may explain this. In some

instances, the claimant met the equal work claim and there would

have been no need to decide any other approach. E.g., Schultz v.

Wheaton Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398

U.S. 905 (1970); and Roesel v. Joliet Wrought Washer Co., 596

F.2d 183, 184-86 (7th Cir. 1979); DiSalvo, 568 F.2d at 596-97; and

Laffey, 567 F.2d at 445. In some cases the plaintiff failed to meet

the equal work standard and the facts suggest the plaintiff would

not have been able to establish facts similar to the facts of this case.

E.g., Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir. ), cert.

denied, 434 U.S. 904 (1977); Calage v. University of Tennessee,

544 F.2d 297 (6th Cir. 1977); Orr. Finally, in some of the cases the

plaintifis never sought to challenge the equal work standard. E.g.,

DiSalvo; Calage; Manhart.

20. We make no judgment as to whether, on the merits, the

plaintiffs will be able to sustain their burden of proof. We rule mere-

ly that they must be given the opportunity to present the case to a

fact-finder to evaluate their evidence.

3l1e

VAN DUSEN, Circuit Judge, dissenting.

I respectfully dissent. The majority opinion de-

scribes a case in which sex-based wage discrimination

and liability under §703(a)(1) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e-2(a)(1) (1976),

will be established by evidence that an express policy of

sex-based wage discrimination exists at Westinghouse’s

Trenton facility.’ If | understood the case to involve only

this issue, I would join in the court's order.” However, I

1. The majority’s language also describing plaintiffs’ claim as a

§703(a\(2), §2000e-2(a)(2), “classification” case is inaccurate, The

plaintiffs complaint includes five counts. Each count alleges a

§703(a)( 1), §2000e-2(a)( 1), compensation violation. A §703(a)(2)

classification violation is nowhere mentioned in the plaintiffs’ pa-

pers (8a-33a).

2. The majority's belief that Title VII must be read more broad-

ly than the Equal Pay Act in order that certain sex-based wage dis-

crimination not go unremedied is open to question, The Equal Pay

Act states:

“No employer . . . shall discriminate between employees on

the basis of sex by paying wages to employees in such estab-

lishment at a rate less than the rate at which he pays wages to

employces of the opposite sex in such establishment for equal

work on jobs the performance of which requires equal skill, ef:

fort, and responsibility, and which are performed under similar

working conditions. . . .”

The majority implies that an employer, who explicitly states that he

is paying a group of his female employees less than he would if they

were males, is not liable under the Equal Pay Act so long as no male

employees performing substantially equivalent work exist. I believe

that the Equal Pay Act does prohibit such sex-based wage discrimi-

nation. It is not necessary that every Equal Pay Act violation be es-

tablished through proof that members of the opposite sex are cur-

rently performing equal work for greater pay, Although the typical

Equal Pay case involves a claim that men and women are working

contemporaneously at the same job for disparate compensation, the

courts have also found Equal Pay violations by looking to the wages

paid the predecessors or successors of plaintiffs. Bourque v. Powell

‘Electrical Manufacturing Co., 23 E.P.D. 930,891 (No, 1247, 5th

Cir., May 5, 1980) (violation of Equal Pay Act and Title VII estab-

understand the Union to be asking this court to adopt

the position that a plaintiff can prove a claim under Title

VII on a sex-based wage discrimination theory through

comparisons of the worth of comparable work; that is,

through comparisons of the value of different jobs to the

wages paid for performing those jobs. Since | believe

Congress adopted the Bennett Amendment, which is in-

cluded in §703(h) of Title VII, 42 U.S.C. §2000e-2(h), to

prevent plaintiffs from proving sex-based wage discrimi-

nation claims under Title VII with evidence of the worth

of comparable work, I dissent.

NOTE 2 — (Continued)

lished by comparison with wage of predecessor and statements of

intent to engage in sex-based wage discrimination), and DiSalvo v.

Chamber of Commerce, 568 F.2d 593 (8th Cir. 1978) (violation of

Equal Pay Act and Title VII established by comparison with wage of

successor). | interpret an employer's statement, “if my female em-

ployees were males, | would pay them more,” as an admission that

men performing equal work, with the same qualifications, in the

same working conditions, would be paid more than the current fe-

male employees, This situation is covered by the Equal Pay Act. The

hypothetical males referred to by the employer suffice as the better

paid employees of the opposite sex required by the statute. To re-

quire the female employees to wait until better paid male successors

are in fact hired by the employer before bringing a claim would be

manifestly unjust. | am confident that Congress did not intend such

overt discrimination to go unremedied by the Equal Pay Act, | be-

lieve that the majority's reliance on the inability of the Equal Pay

Act to accommodate this situation is unjustified,

The only case which | have found addressing this question is

Rinkel v, Assoc, Vipeline Contractors, 17 F.E.P. cases 224, 226 (D.

Alaska 1978). The district court in Rinkel concluded that in order to

establish liability under the Equal Pay Act it was necessary that a

member of the opposite sex actually perform equal work, despite ex-

plicit statements of intent to discriminate in wages on the basis of

sex by the employer. | do not believe the court adequately consid-

cred the policies of the Equal Pay Act in reaching this conclusion

and was in error,

33¢

As | understand the record in this case, the Union’s

case can only be proved through evidence of the worth of

comparable work. The Union's sole evidence of an ex-

press policy of discrimination at the Trenton facility is a

statement from 1939. Although the Union acknowl-

edges that there have been changes in the content of the

various jobs and adjustments to the pay scales over the

last 40 years,’ they argue that, with comparable work

evidence, they can prove that the 1939 policy has been

perpetuated. They state that “|j|ob comparisons would

play only a limited role in plaintiff's proof — establishing

that discriminatory wage reductions for women first in-

stituted by Westinghouse some forty years ago have not

been eliminated with the passage of time, and that the

present system still embodies intentional discrimina-

tion.”* Although the Union downplays the importance of

the comparable work evidence, it is the sole evidence

available to them to demonstrate that the discrimination

has continued. Thus, the evidence of comparable work

will be the central focus of the Union's case.°

3. Brief for appellants at 10,

4. Appellants’ Reply Brief at 6.

5. The Union explained its proposed method of proof and the

importance of comparable work evidence in response to the defend-

ant's interrogatories, as follows:

“The low rates for all female jobs — including the few clas-

sified above Labor Grade 3 — are not justified by the nature

and content of the jobs, but are solely the result of sex discrimi-

nation, Plaintiffs will establish this fact by expert testimony

after further discovery and investigation, and it is not possible

to describe at this point the comparisons which plaintiffs will

make at trial between various jobs, However, examples of job

comparisons which plaintiffs would make on the basis of their

present knowledge are contained in the answers to

Interrogatories Nos, 11-16,”

(69a, emphasis added. )

y ‘)

wer

34e

Accordingly, the question presented by this case is

whether a sex-based wage discrimination claim can be

made out under Title VII on the basis of evidence of

comparable work. Because I believe the Bennett Amend-

ment attempts to incorporate into Title VII the Equal

NOTE 5 — (Continued)

An example of the job comparisons to be made is set out in answer

to Interrogatory No, 12.

“!Ojn the basis of their present knowledge, plajntiffs would

compare the Mount Machine Operator and the Janitor jobs in

the following terms relevant to their claim that the job of Mount

Machine Operator is discriminatorily underpaid:

“A Mount Machine Operator must work at a fast pace feed-

ing flares, coils, wires and exhaust tubing into her machine.

This demands great skill and dexterity, especially the coil feed-

ing. The operator must be able to work from a schedule sheet,

must notify other personnel of type changes and the anticipat-

ed time of changeovers, must keep production records, must

analyze and record shrinkage, and must take note of irregulari-

tics in the machine's operation and in the materials she re-

ceives. The operator must clear jams and remove defective

parts with tweezers, relight fires, and do other such mainte-

nance functions. The job entails several other duties: traying

the finished mounts, stamping and counting flimsies, cleaning

machine parts, pushing bulb hampers to the sealex position,

dumping glass particles into a cullet box and pushing the box

to the aisle and stocking it for the cullet collector to empty, re-

pairing defective mounts, delivering trayed mounts to the

sealex position, obtaining materials, sweeping the work area,

etc. Much of this work is heavy; for example, the lifting of

heavy boxes of flares and tubes, and the moving of even heavier

cullet boxes and bulb hampers. The work is constant, and in-

volves tension and pressure, since the operator must keep up

with the. machine and the plant's production depends on the

operator's ability to keep the machine fed and running, and to

identily problems in the operation of the machine as well as de-

fects in the materials which go into the machine and the

mounts which come out of it.

“In contrast, the Janitor job involves virtually no skill.

Moreover, the janitors can work at a leisurely pace, and often

have no duties to perform for substantial periods of time. And of

35¢

Pay Act’s rejection of the comparable work approach, [|

conclude the answer to the question is no.®

If.

The proper anaiysis of the question begins with an

understanding of Congress’ position on comparable

work in the Equal Pay Act. It is clear from the legislative

history of the 1963 Equal Pay Act amendment to the

Fair Labor Standards Act of 1938, 29 U.S.C. §206(d),

that Congress rejected the comparable work doctrine at

that time. Angelo v. Bacharach Instrument Co., 555 F.2d

1164, 1173-76 (3d Cir. 1977). Congress did not want

course, the performance of the janitors does not have a direct

effect on production, unlike the Mount Machine job. Further-

more, for the most part the janitor’s work is very light. Janitors

have seldom been required to sweep the factory areas (except

the warehouse janitor), because this work is done by the opera-

tors in the areas. Thus the sweeping done by janitors is gener-

ally confined to offices, wash rooms, stairways, cafeteria, etc.

The cleaning done by the janitors is of a light nature, requiring

little exertion. The same is true of the janitors’ duties with re-

spect to emptying cigarette containers, wastepaper baskets,

etc. And equipment such as powered sweepers and automatic

hand tracks minimize the effort required in the few areas

where the work might otherwise be heavy.”

(75a-77a)

6. Even if the majority’s perception of this case, that it raises

only the question of whether sex-based wage discrimination can be

proved by way of statements of intentional wage discrimination in

the absence of an equal work violation, is correct, the majority's

analysis will permit sex-based wage discrimination claims to be

brought solely on the basis of evidence of comparable work. By in-

terpreting the Bennett Amendment to refer only to the four excep-

tions in the Equal Pay Act and by holding that Title VII need not be

read in pari materia with the Equal Pay Act, the majority has nec-

essarily decided that Title VII's yrohibition against sex discrimina-

tion in wages is not limited by the Equal Pay Act’s equal work re-

quirement. Accordingly, we must confront the comparable work

issue in this case.

, ee

—

36e

and “did not authorize the Secretary |of Labor] or the

Courts to engage in wholesale reevaluation of any em-

ployer’s pay structure in order to enforce their own con-

ceptions of economic worth.” Brennan v. Prince William

Hospital Corp., 503 F.2d 282, 285 (4th Cir. 1974), cert.

denied, 420 U.S. 972 (1975). Congress rejected the doc-

trine at least in part due to the difficulty of ascertaining

the worth of comparable work and the difficulty of

ascertaining the impact on wages of the supply and de-

mand for labor.’ The determination of proper wages

when equal work did not exist was deemed better left to

the market place than to a judicial fact finder.

One year later the same Congress passed the Civil

Rights Act of 1964, a broad anti-discrimination statute

prohibiting, inter ulia, sex discrimination in employ-

ment. It is a general principal of statutory construction

that legislation addressing the same issue be interpreted

in pari materia if possible. The Supreme Court has held

that under this canon, “a statute dealing with a narrow,

precise, and specific subject is not submerged by a later

enacted statute covering a more generalized spectrum.

‘Where there is no clear intention otherwise, a specific

statute will not be controlled or nullified by a general

one, regardless of the priority of enactment.’”

Radzanower v. Touche, Ross & Co., 426 U.S. 148, 153

(1976), quoting Morton v. Mancari, 417 U.S. 535,

550-51 (1974). The canon has elsewhere been defined

to mean that:

“In terms of legislative intent, it is assumed

that whenever the legislature ‘enacts a provision it

has in mind previous statutes relating to the same

7. The difficulty of ascertaining the proper wage for a job by

comparing it to the wage paid for dissimilar work has been well

documented. See Christensen v. lowa, 563 F.2d 353, 356 (8th Cir.

1977), and Lindsay, Equal Pay for Comparable work: An Economic

Analysis of a New Antidiscrimination Doctrine (1980), published

by the Law and Economics Center of the University of Miami.

37¢

subject matter, wherefore it is held that in the ab-

sence of any express repeal or amendment therein,

the new provision was enacted in accord with the

legislative policy embodied in those prior statutes,

and they all should be construed together.”

2A C. Sands, Sutherland Statutory Construction §51.02

(4th ed. 1973) (footnotes omitted).

In my opinion, the Equal Pay Act and Title VII

should be construed in pari materia. They both deal

with the same subject matter, sex-based wage discrimi-

nation. The Equal Pay Act deals solely with sex-based

wage discrimination and was enacted after extensive

legislative investigation of the issue. Title VII, by con-

trast, is general anti-discrimination legislation and was

passed without investigation of the specific problem of

sex-based wage discrimination. In Title VII there is no

express repeal of the equal work requirement of the

Equal Pay Act. Rather, the legislative history of Title VII

shows an actual intent by the floor leaders of the legisla-

tion to avoid conflicts between the two statutes. In fact,

Title VII expressly refers to the Equal Pay Act and at-

tempts to harmonize the two statutes through the Ben-

nett Amendment.

Further support for construing the statutes in pari

materia is found in the EEOC’s contemporaneous agen-

cy regulation, 29 C.F.R. §1604.7(a) (1965). It expressly

stated that “Title VII requires that its provisions be har-

monized with the Equal Pay Act (section 6(d) of the Fair

Labor Standards Act of 1938, 29 U.S.C. 206(d)) in order

to avoid conflicting interpretations or requirements with

respect to situations to which both statutes are applica-

ble.” The current EEOC regulations also include a provi-

sion expressly addressing the relationship between Title

VII and the Equal Pay Act, 29 C.F.R. §1604.8 (1978).

Moreover, every court of appeals which has addressed

the question of the applicability of the in pari materia

canon to the interpretation of these statutes, including a

38¢

prior decision of the Third Circuit, has held that the can-

on does apply. Schultz v. Wheaton Glass Co., 421 F.2d

259, 266 (3d Cir.), cert. denied, 398 U.S. 905 (1970);

DiSalvo v. Chamber of Commerce, 568 F.2d 593, 596

(8th Cir. 1978); Laffey v. Northwest Airlines, Inc., 567

F.2d 429, 446 (D.C.Cir. 1976); and Orr v. MacNeill &

Sons, Inc., 511 F.2d 166, 170 (5th Cir.), cert. denied,

423 U.S. 865 (1975). All of these factors lead me to con-

clude that the canon is applicable to the issue in this

case and requires us to interpret Title VII in a fashion

consistent with the Equal Pay Act’s rejection of the com-

parable work doctrine.

It is from this foundation that I begin my analysis of

the Bennett Amendment. The Bennett Amendment pro-

vides as follows:

“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

wages or compensation paid or to be paid employees

of such employer, if such differentiation is author-

ized by the provisions of [the Equal Pay Act] Section

6(d) of the Fair Labor Standards Act of 1938, as

amended (29 U.S.C. 206(d)).

This provision was added in response to Congress-

man Smith’s amendment, which included sex in the

classifications protected under §703(a)(1) of Title VII,

42 U.S.C. §2000e-2(a)(1), from employment dis-

crimination.

As the majority discusses extensively, the dispute in

interpreting the Bennett Amendment concerns the

meaning of the word “authorized” in the phrase “author-

ized by the provisions of Section 6(d) of the Fair Labor

Standards Act of 1938.” The majority notes that the

word “authorized” is open to two interpretations, It may

refer to the four exceptions expressed in the Equal Pay

Act, as the majority concludes, or it may limit the prohi-

bition against sex-based wage discrimination to situa-

39e

tions where the Equal Pay Act is also violated, thus pre-

venting the use of comparable work evidence. A review

of the aids to interpretation leads me to the latter

conclusion.

Statutory construction begins with an analysis of

the language of the statute. Lewis v. United States, 48

U.S.L.W. 4205, 4207 (S.Ct. Feb. 27, 1980). The word

“authorized” normally describes something that is affir-

matively endorsed. However, as Westinghouse argues,

an alternative definition is “to permit a thing to be done

in the future.’”® I do not believe the common meaning of

the word is so clear as to reveal conclusively the correct

interpretation of the statute.

Moreover, the majority's definition of “authorized”

renders the Bennett Amendment largely redundant, a

construction which is to be avoided. F.A.A. v. Robertson,

422 U.S. 255, 261 (1975). Section 703(h) of Title VII,

§2000e-2(h), contains two sentences. The Bennett

Amendment is the second sentence. The first sentence

explicitly provides that “it shall not be an unlawful em-

ployment practice for an employer to apply different

standards of compensation. . . pursuant to a bona fide

seniority or merit system or a system which measures

earning by quantity or quality of production. .. .”

Nonetheless, the majority views the Bennett Amend-

ment as solely incorporating the following provision un-

der the Equal Pay Act: “|njo employer . . . shall dis-

criminate. . . [on the basis of wages]. . . except where

such payment is made pursuant to (i) a seniority system;

(ii) a,merit system; (iii) a system which measures earn-

ings by quantity or quality of production; or (iv) a differ-

ential based on any other factor other than sex. . . .” In

light of the first sentence of §703(h), the majority's in-

8. Black's Law Dictionary (4th ed. 1968) at 169.

terpretation makes the Bennett Amendment surplusage.

Based on these factors, I believe the statutory language

itself is inconclusive.

The second aid to interpretation is the legislative

history. Two days after Congressman Smith’s amend-

ment to Title VII including sex as a protected classifica-

tion was adopted, the bill passed the House. The bill by-

passed the Senate committee system and was presented

to the full Senate for initial consideration. The first dis-

cussion of the issue of discrimination in compensation

based on sex was presented on April 4, 1964, by Senator

Clark, one of the bill’s floor managers, in response to

questions raised by Senator Dirksen. Senator Clark

posed the following question and answer:

“Objection: The sex antidiscrimination provisions

of the bill duplicate the coverage of the Equal Pay

Act of 1963. But more than this, they extend far be-

yond 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 numer-

ous exemptions unlike title VII. Furthermore, un-

der title VII, jobs can no longer be classified as to

sex, except where there is a rational basis for dis-

crimination on the ground of bona fide occupational

qualification. The standards in the Equal Pay Act

for determining discrimination as to wages, of

course, are applicable to the comparable situation

under title VII.

110 Cong. Rec. 7217 (1964) (emphasis added). As I read

the emphasized portions of the question and answer,

4le

they demonstrate an intent to preserve the Equal Pay

Act’s requirement that proof of equal work be a prerequi-

site to a sex-based wage discrimination claim under Title

VII.

Subsequently, on June 12, 1964, the Bennett

Amendment was introduced in the Senate. The colloquy

at the time of introduction and adoption is somewhat

ambiguous.” Senator Bennett summarized the import of

his amendment by saying:

“Now, when the civil rights bill is under consider-

ation, in which the word 'sex’ has been inserted in

many places, I do not believe sufficient attention

may have been paid to possible conllict 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.”

110 Cong. Rec. 13647 (1964). This statement is open to

different interpretations because Senator Bennett did

not specify the provisions of the Equal Pay Act to which

he was referring. I believe, however, the most logical in-

terpretation of the statement is that Senator Bennett was

referring to the equal work provisions of the Equal Pay

Act.

9. The teo:t of the colloquy at the time of introduction and

adoption is set forth at note 11 of the majority opinion.

10. Senator Dirksen's statement, which is relied on by the ma-

jority, is also ambiguous. Senator Dirksen said, “all that the pending

amendment does is recognize those exceptions, that are carried in

the basic act." It is unclear what “the basic act” refers to. Moreover,

it was Senator Dirksen who first raised the objection, answered by

Senator Clark, that Title VII would reject the equal work require-

ment. These facts leave the majority's interpretation open to

question.

’%

42¢

The Senate’s amendment was then sent to the

House. for approval. In the House Congressman Celler,

floor leader of the bill, explained that the Bennett

Amendment “provides that compliance with the Fair La-

bor Standards Act as amended satisfies the require-

ments of the title [Title VII] banning discrimination be-

cause of sex.” 110 Cong. Rec. 15896 (1964). As the

majority notes, this statement also is open to varying in-

terpretations. Again, I believe that the most logical inter-

pretation of this remark is that complying with the Equal

Pay Act would preclude liability under Title VII for all

sex-based wage discrimination claims. The House

adopted the provision and the bill was eventually en-

act

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