# Petition — International Union of Electrical, Radio & Machine Workers v. Westinghouse Electric Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0785%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 1009 ## Text & 0 v4 &, ] Supreme Court, U.S. : FILED NOW 14 1960 No. 80- ee 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, F% 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. SS 7% °°. i 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 Page Gueniten Prenembed 22. icccidncdecnwdancess sete ccs i Tene GE AemOGNOS iiss io sac ics cheese pas cd ovsaces iv Opinions Below ............ énmubeaoceyteseccoonse 2 FORM onic 5k. ss ce hensa eae akaeke 2 Dieteten. THN. .... vcs cconcacabuaeeareewicdiescers 3 Diaheenk OF Whe COG ks sanscceietcwsbashsstoges 4 A. Procedural Statement ...........ceeeceess 4 B. Tee Mee. 6d kc ced dca tedaciacce. 6 Reasons Why the Writ Should Be Granted .......... 10 On er rn On eee 15. 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 Distviet Geuatt . ccccksnccaendatseesdeceeiscas le Appendix D Order of the U.S. Court of Appeals for the Third Circuit Denying Rehearing and Rehearing En DAR oc evcvgcaseskccananeeeeeeseereesbio. 1d PRECEDING PAGE WAS BLANK -% a) iv 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 SE cai caCd in cecicascunceasaevodegnaee sm 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 Be Wane SEED Cod cb eaVdodecdescecenchodaeses 2, 5 SP WEED bs bud pau bo0used bene kehaaws passim Se a SE aii aida pedis adden dbase dbs aea eee 13 Title VII of the Civil Rights Act of 1964 .......... passim Seals GOCE); PIG, Poise fishes eves ckis teaG! 5,14 '% 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. 7% - *. 2 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. *% 3 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 ’*% | 4 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 7% 5 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. _ 6 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. ’% 7 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. 7% 10 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 & *% 11 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 **% 12 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. *% 13 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. '*% Ss 14 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. 7% ss 15 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 la 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 -% 2a 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- '% 3a 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. -% 4a § 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). 7. 5a 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). ‘% 6a 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. 7% 7a 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. 8a 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). 7% 7% 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). 7% 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 ’% 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. (c) Where such a defense is raised the Commission will 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. s% 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, v. 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 #% 1b 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, V. 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. ¢% 2b 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 3b 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. rs 4b 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 5b 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". 6b 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. 7% 7b 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 Le 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, we WESTINGHOUSE ELECTRIC CORPORATION a corporation 2e 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 -% 4c 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. -% 5e 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, 6c 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 my 7e 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. I, 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). -% Se 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 7% 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. A. 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”. B. 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- es 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.’ C. 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. D. 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). le 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 7% 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0785%3A1. Public record. Not legal advice.