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

Supreme Court brief1981

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MICHAEL ROBWK JR Cicex f

Supreme Court of th the United States

October Term, 1980

WESTINGHOUSE ELECTRIC CORPORATION,

Petitioner,

Vv.

INTERNATIONAL UNION OF ELECTRICAL,

RADIO AND MACHINE WORKERS,

AFL-CIO-CLC, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

WALTER P. DEF OREsT, III*

PETER D. Post

MARTHA HARTLE MUNSCH

Reed Smith Shaw & McClay

747 Union Trust Building

Pittsburgh, Pennsylvania 15219

412-288-3383

STUART I. SALTMAN

Westinghouse Electric Corporation

Room 1209, Westinghouse Building

Pittsburgh, Pennsylvania 15222

Counsel for Petitioner

Westinghouse Electric Corporation

*Counsel of Record

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

QUESTION PRESENTED FOR REVIEW

Whether—by reason of the Bennett Amendment to

Title VII of the Civil Rights Act of 1964, the doctrine of

in pari materia construction, or other principles of statu-

tory interpretation—claims of sex discrimination in

wage rates which are asserted under Title VII should be

required to satisfy the “equal work” requirement of the

Equal Pay Act.

Westinghouse Electric Corporation (‘Westing-

house”), Petitioner herein, prays for a Writ of Cer-

tiorari to review the judgment of the United States

Court of Appeals for the Third Circuit in this case.1 In

addition, the IUE, which had prevailed in this case in

the Third Circuit, took the unusual step, on November

14, 1980, of filing a Petition For A Writ Of Certiorari

(the “IUE’s Petition’’) to seek review of the Third Cir-

cuit’s Opinion. Accordingly, Westinghouse has included

in this Petition a statement regarding certain points of

disagreement with the IUE’s characterization of the na-

ture of this case as well as other contentions in the IUE’s

Petition, although both Westinghouse and the IUE agree

that the legal issue involved in this case is an important

one and that this Court should grant certiorari to review

the Third Circuit’s Opinion. Of course, Westinghouse

1. The parties to the proceeding in the United

States Court of Appeals for the Third Circuit, whose

judgment is sought to be reviewed herein, were as fol-

lows: Westinghouse Electric Corporation as Defendant-

Appellee and International Union of Electrical, Radio

and Machine Workers, (hereinafter “IUE”), IUE Local

449, Marge Dinnan Brophy, Henrietta Brown, Melvina

Cooper, Ann Raho Frazier and Helen Walsh, on behalf —

of themselves and on behalf of all persons similarly

situated as Plaintiffs-Appellants.

Question Presented for Review.

believes that its Petition For Writ Of Certiorari is the

one that should be granted and the norma! sequence

should be followed whereby Westinghouse, as the party

which lost below, should be the one to file the opening

and closing briefs and argument on the merits and com-

ply with the other procedural requirements for the

processing of this case.2

2. Westinghouse has also filed a Response To The

IUE’s Petition For A Writ Of Certiorari wherein West-

inghouse sets forth in slightly greater detail the reasons

it believes that the Westinghouse Petition should be

granted and the IUE Petition should be denied.

iii

Table of Contents.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEV ........ wulitbas i

py oP ee tivy. (sty yt) rr iv

oe i ooo dad checacecheceveceesseme i

PTS 1

STATUTES AND REGULATIONS INVOLVED... 1

STATEMENT OF THE CASE ..0...0...ccccccccccccccceccceececece 2

SUMMARY OF REASONS FOR GRANTING THE

oe ey 8) Gy 8 ee RR 10

REASONS FOR GRANTING THE PRESENT

og ME RRR SB AE RES ree NPL CS a 12

I. This Issue Is An Important One That Is

Presently Pending Before The Court. A

Writ Of Certiorari Should Be Granted In

The Present Case Also, To Provide For A

More Extensive Presentation Of The Sub-

cd Tk SRE ICTRDERRAE FOS Ree are em aa Ce 12

If. The Third Circuit’s Decision Is in Conflict

With Prior Decisions Of This Court, As

Well As With Decisions Of Five Of The

Six Other Circuits That Have Considered

RAIA aE oi 23

ce aR neal Meg eta 1 aia eae 30

Appendix A—Opinion of the U. S. Court of Appeals

for the Third Circuit, Filed August 1, 1980........ la

Appendix B—Order of the U. S. Court of Appeals

for the Third Circuit Denying Rehearing and

Rehearing En Banc, Filed October 29, 1980........ 53a

Appendix C—Opinion of the U. S. District Court for

the District of New Jersey Granting Westing-

house’s Motion for Summary Judgment, Filed

PN eS. ens ccae aan Y 55a

Appendix D—Opinion of the U. S. District Court for

the District of New Jersey Granting Certifica-

tion Under Fed. R. Civ. P. 54(b), Filed April

WE PO Gna tac cur enge GES. eo Saul 8la

Appendix E—Statutes and Regulations Involved...... 90a

Appendix F—June 6, 1967 Opinion Memorandum

from EEOC Acting General Counsel Kenneth

LB ce ig AT LE, ELENA AEENS RAT 94a

Table of Authorities.

TABLE OF AUTHORITIES

CASES ) PAGE

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

ITE SY i suicacdeisnsnaccuuctha ant ote uabetd as taksodndaeriey 25, 26

Ammons v. Zia Co., 448 F.2d 117 (10th Cir. 1971)... 23

Calage v. University of Tennessee, 400 F.Supp. 32

(E.D. Tenn. 1975), aff'd, 544 F.2d 297 (6th Cir.

cant naaamiotnesnnryaeeaaieeenethe 23

DiSalvo v. Chamber of Commerce, 568 F.2d 593 (8th

SEK EIEN os) sn cwkacpocven san uberbebaemiiels. -oulesaialirehnpsesan

General Electric Co. v. Gilbert, 429 U.S. 125

I a il eared 26, 29

Gunther v. County of Washington, 623 F.2d 1303

(9th Cir. 1979), rehearing denied, 623 F.2d

1317 (9th Cir. 1980), cert. granted, No. 80-429

CI, a, PE has isa ehentisisbascene 12, 13, 18, 23

Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th

Cir.), cert. denied, 434 U.S. 904 (1977) wesc... 23

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

(10th Cir. 1980), cert. denied, 49 U.S.L.W. 3250

CRF. MG TID oc lcsi thas cessystenseaisansskasiadenssveie 23

Novotny v. Great American Federal Savings & Loan

Ass’n., 584 F.2d 1235 (3d Cir. 1978), reversed,

Se I arras sens cagdonsscasticinecvaneadsckivasors 26

Novotny v. Great American Federal Savings & Loan

BO, GE Chas TO TROON | Sas bicnesneasecinsicscssrsnceneess 26

Orr v. MacNeill & Son, Inc., 511 F.2d 166 (5th Cir.),

cert. denied, 423 U.S. 865 (1975) ......... eee eeeeee 23

Radzanower v. Touche, Ross & Co., 426 U.S. 148

PN a yik ea ec cacti ieacihad ek ihe tdhedacsbyiin tannoecabtesule tons 24

Stastny v. Southern Bell Telephone & Telegraph

Co., 628 F'.2a 267 (4th Cir. 1960) ...........4........... 23

Train v. Colorado Pub. Int. Research Group, Inc.,

I Ae Epica. scalp bneasRadenvebinsésbikirsechoaes oh 24

Udall v. Tallman, 380 U.S. 1 (1955) ..........0000.0. 27, 29

United States v. United Continental Tuna Corp., 425

SL EEE ROMPUTRE cadceackcckincad cpu hh dARibeus taaemsiorzensbceghied.« 25

Table of Authorities.

PAGE

STATUTES AND REGULATIONS

Civil Rights Act of 1964, Title VII, 42 U.S.C. §2000e

CTTW: .svicsttvsinabatekdunssaciuiiananicbiiniapaclananinspicaccumeeed passim

Fair Labor Standards Act of 1938, as amended by

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

EREREEERSREES OSE SCREENS er aera eR RSD passim

Be ee BID oii nnn ncsnnsded secdensiteonsccaviccbcecinn 1, 27

29 C.F.R. §1604.7 (1965), originally published in 30

Fed. Reg. 14,927 (Dec. 2, 1965) ..........0... ccc 1, 27

LEGISLATIVE HISTORY

Hearings on H.R. 8898 and H.R. 10226 before the

Select Subcomm. on Labor of the House Comm.

on Education and Labor, 87th Cong., 2d Sess.

SAID Wash ck ishan a toligs cochlea eRe nines oebchinsaiesenblercrllke 14, 15

109 Cong. Rec. 9196 (Remarks of Rep. Frelinghuy-

REECE ARE A TAS wn ac 2 NE Se BIN 16, 17

109 Cong. Rec. 9197 (Remarks of Rep. Goodell) ....16, 17

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra)

is not yet officially reported, but is unofficially reported

at 23 F.E.P. Cases 588. The order of the court of ap-

peals which denied a rehearing (App. B, infra) is not yet

reported either officially or unofficially. The opinions of

the district court (App. C and D, infra) are unofficially

reported at 19 F.E.P. Cases 450 and 19 F.E.P, Cases 1028.

JURISDICTION

The judgment of the court of appeals was entered on

August 1, 1980. The court of appeals denied Westing-.

house’s Petition For Rehearing and suggestion for re-

hearing in banc on October 29, 1980. The jurisdiction of

this Court is invoked under 28 U.S.C. §1254(1).

STATUTES AND REGULATIONS INVOLVED

The statutes involved are Section 703(a) (1) of Title

VII of the Civil Rights Act of 1964 (“Title VII’’), 78

Stat. 255, 42 U.S.C. §2000e-2(a) (1) ; Section 703(h) of

Title VII, 78 Stat. 255, 42 U.S.C. §2000e-2(h) [the second

sentence of Section 703(h) contains the Bennett Amend-

ment to Title VII]; and Section 6(d) of the Fair Labor

Standards Act of 1938, as amended by the Equal Pay

Act of 1963, 77 Stat. 56, 29 U.S.C. §206(d). The regula-

tions involved herein are the 1965 regulations of the

United States Equal Employment Opportunity Commis-

sion (“EEOC”) interpreting the Bennett Amendment,

which were issued contemporaneously with the outset of

Title VU, as part of the EEOC’s “Guidelines on Discrim-

ination Because of Sex” in 30 Fed. Reg. 14928 (1965)

and were then codified as 29 C.F.R. §1604.7; and the

EEOC’s revised regulations interpreting Section 703 (h),

which were issued on April 5, 1972 as part of the EEOC’s

revised “Sex Discrimination Guidelines” in 37 Fed. Reg.

6836 (1972) and numbered as 29 C.F.R. §1604.8. These

statutes and regulations are set forth in App. E, infra.

Statement of the Case.

STATEMENT OF THE CASE

This suit was filed by the IUE and its Local 449, the

collective bargaining representative of production and

maintenance employees at Westinghouse’s Trenton, New

Jersey Plant. The Complaint was based upon a charge

that had been filed by the IUE and its Local 449 with the

EEOC. The IVE also named in the Complaint certain

women who were officials and/or members of the IUE

Local as individual representative plaintiffs.3 The Com-

plaint invoked the jurisdiction of Title VII and essen-

tially alleged two claims. The first claim was that the

wage rates for job titles in which many women (as well

as some males) have worked—such as light assembly

and inspection work—are lower than Plaintiffs contend

those rates should be in comparison to the rates paid

certain other jobs that in times before February 1965

had allegedly been worked by males ( although since at

least 1965 these later jobs have been worked by women

as well). The second type of claim in the Complaint re-

lated to allegations of general discrimination in other

terms and conditions of employment. Only the first

claim, that relating to wage rates, has been involved in

the appeal below or in the present petition.4

After a plant inspection by their job evaluation ex-

pert, Plaintiffs admitted that men and women were not

being paid differently when performing equal work in

the Trenton plant. In response to Westinghouse’s inter-

rogatories, Plaintiffs acknowledged that they did not

3. The Unions and the individual women are here-

in referred to collectively as the “Plaintiffs.”

4, All claims regarding the general allegations of

discrimination promptly were amicably resolved, settled,

and dismissed with prejudice shortly after the claims

regarding wage rates were dismi ,

Statement of the Case.

allege that any job performed by women employees re-

quired “equal skill, effort and responsibility and is per-

formed under similar working conditions as that of a job

performed by male employees.”5 Plaintifis characterized

the nature of their contentions as follows: “Plaintiffs do

not contend for example that men and women work as

machinists doing the same work with women being paid

less for doing so. What [they] do contend is that men

and women work at comparable jobs with women being

paid less solely because of their sex.” (emphasis ad-

ded) .6

Plaintiffs’ Answers to Interrogatories listed 71 sep-

arate job titles worked largely by women that they

claimed were underpaid in comparison to various jobs

worked largely by men. In those same Answers Plaintiffs

indicated that they intended to establish the alleged

underpayment of such jobs at trial by “expert testi-

mony” and “comparisons which Plaintiffs would make at

trial between various jobs” worked largely by women

and others worked largely by men.7 Plaintiffs also in-

tended to introduce evidence as to how Westinghouse

evaluated jobs back in the 1930’s in an effort to show

that the jobs were viewed by Westinghouse as having

5. Answers of [representative] Plaintiff

Brophy to Interrogatories by Defendant at 27 , adopted

by all of the other Plaintiffs (C.A. App. 70).

6. Individual Plaintiffs’ Response to Defendant's

Opposition to Class Certification at 14.

7. The text of those Answers is set forth in App.

A, infra, at 37a-38a n. 5. Those Answers discussed com-

parisons that Plaintiffs would make between, for exam-

ple, the machine operator Fu on the one hand, and the

Forklift Truck Operator, Warehouseman, Supply, Jani-

tor and other material-handling service-type jobs on the

other (C.A. App. 82-83).

Statement of the Case.

comparable worth back then. Thus, the case which the

Plaintiffs offered for trial would have involved the dis-

trict court in the vagaries and complexities of various

job evaluation systems, including one allegedly used

forty years ago, as well as comparisons (both forty

years ago and now) of the job content and the proper

wage rate to be paid to the more than 100 different jobs

in the Plant.8

8. The alleged “evidence” of intentional discrimiua-

tion upon which Plaintiffs rely is a portion of an alleged

1938 Westinghouse Industrial Relations Manual which

discusses how women’s jobs would be evaluated for

placement on a woman’s wage curve. As discussed, infra,

at 19-21, Westinghouse does not agree with the facile

conclusions drawn in the IUE’s Petition For Certiorari

regarding that manual. The Company in 1938 was obvi-

ously evaluating women’s jobs in relation to other wom-

en’s jobs and for —— on the women’s wage scale.

Accordingly, the 1938 Manual provided that the evalua-

tor, to award points (which would place a job on one

of the wage curves), would look up the “anchor point”

job in the manual which was similar to the “specific

elements” of the job being evaluated (C.A. App. 114).

Thus, the “anchor point” job against which a woman’s

job was evaluated was a job with similar duties, which

obviously was.also performed by women. The “anchor

point” jobs in the material handling and craft area

(which were male occupations in the 1930’s) were

grouped separately in the 1938 manual (C.A. App. 124).

When a material handling job (which was worked by

men) was being evaluated through use of the 1938 man-

ual, it was evaluated by reference to other material han-

dling jobs—not the light assembly or inspection work

performed by women. Since the manual, itself, makes

clear that male and female jobs were not being evaluated

for payment on the same wage curve, the Company can-

not be assumed to have been making a judgment as to

the comparative economic worth (to the Company or in

the labor market) of the job of a warehouseman versus

that of an inspector. Thus, the fact that a man’s job anda

Statement of the Case.

Regar’ing the period subsequent to enactment of

Title VII—even Plaintiffs do not contest that by 1965

the Trenton Plant had opened all jobs for bidding by

men and women and had created a single wage scale.®

However, Plaintiffs now contend that, although there

were reductions in the comparative ranking of some

eae

woman’s job may or may not have had the same number

of evaluation points under the 1938 manual was not a

judgment by the Company as to whether they should

ave been paid the same rate, since the manual was

premised upon a system of separate wage scales for the

sexes. Moreover, the manual, not being designed for use

with a single wage scale mre cannot be assumed to

have given the proper relative weight to the factors

which differentiated the characteristics of male and

female jobe, such as the proper ~— to be given to

physical effort and less desirable worki g conditions. In

fact, as discussed infra at 20, it is more reasonable to

assume that, if the male and female jobs had been in-

tended to be evaluated with an eye toward payment on

a single wage curve, the relative weight given to the

various “factors” such as physical effort, working con-

ditions, etc., may well have been different and the wom-

en’s jobs would have received lower point totals. Of

course, this Court would not be involved in resolving

whether Westinghouse or Plaintiffs are correct as to

the approach taken by Westinghouse forty years ago—

since that is not relevant to the legal issue presented

for review. The point that is relevant here, however, is

that if Plaintiffs obtain their license to conduct a trial

even though they have not met the equal work require-

ments, on the basis of their theory that there was inten-

tional discrimination forty years ago, that t of trial

will not be the simple ing ry that Plaintiffs now por-

tray, but will involve the courts below in a complicated

analysis of the vagaries of job evaluation and job com-

parisons at this plant over the last forty years.

9. Answers Of Plaintiff Marge Brophy To Inter-

rogatories By Defendant, adopted by all Plaintiffs includ-

ing the Unions (C.A. App. 67).

Statement of the Case.

formerly male jobs and increases in the ranking of some

formerly female jobs,1° the ranking of jobs in the wage

structure created by 1965 was not satisfactory. Plain-

tiffs raise this complaint because, as of 1975, the bulk of

women (125 women) worked in jobs in labor grade $3

while the bulk of the males (21 males) occupied lator

grade 5, with the exception of the craft workers who

occupied labor grades 8-13.11

There are several other matters of record herein

which have been omitted from the IUE’s Petition and

which are relevant to an understanding of the context

of this case and the trial sought by Plaintiffs. First,

as should be self-evident, there have been (and continue

to be) numerous changes in jobs, addition and deletion

of job duties, eliminations of jobs and combinations of

jobs that have occurred since the 1930’s and 40’s.12

pa 6) Answers Of Plaintiff Marge Brophy (C.A. App.

11. The IUE’s Petition For Certiorari at 9 contains

a chart ee ae labor grade population by sex as of

November 30, 1975. The craft jobs oc nA labor apr

8-13 as set forth in Response To Plaintiffs’ First

Interrogatories To endant Westinghouse Electric

Corporation at 43-44. Actually, most of the craft work-

ers are found in labor grades Yo and 13 at the top of the

scale where the electricians and the “machine attend-

ants,” who repair all of the automated machinery in the

plant, are located.

12. In the district court the Plaintiffs, through an

affidavit submitted by Mark Klink, the Local Union Pre-

sident, admitted that changes in jobs are constantly

taking place as follows:

. at least sixteen of the female jobs whose

rates are challen by plaintiffs were eliminated

prior to March, 1978. . . . Jobs filled exclusively or

eieacagy way! by males, to which the female jobs would

ave to be compared, have also been eliminated.

Statement of the Case.

Second, there obviously has been collective bargaining

with the Union at the Trenton Plant over the past 40

years. Revisions in the wage structure were not limited

to 1965. In fact, as recently as 1968, the Company, Local

449, and the International Union reviewed the wage

structure concerning all the jobs in the Trenton Plant.

With the exception of seven specified jobs, Local 549

and the IUE explicitly agreed on October 19, 1968

that by that date all jobs in the plant were classi-

fied in a proper relationship to each other and that no

job’s classification should be increased unless there were

subsequent changes in the job.13 Westinghouse and the

Union signed agreements in 1969 and 1970 to upgrade

the seven jobs excepted from the 1968 agreement (C.A.

._. . Similarly, defendant is constantly making

changes in its machinery to reflect tech ical im-

provements or to reflect new product lines. These

changes often alter the skill or effort necessary to

ate the machine, or change the working condi-

tions of the job. Affidavit of Mary Klink, {/6.

“Since the ompany is constantly reevaluating

and restructuring its operation, it is reasonable to

expect that job changes will be made while the un-

resolved issues in this case are litigated (emphasis

added).”” Memorandum In Support Of Plaintiff

Unions’ Motion For Certification Under Rule 54(b)

at 4.

13. The Company and the Union signed an Agree-

ment to that effect on October 19, 1968. That Agreement

is attached as Addendum A to the Affidavit of H. A. Sie-

ber (C.A. App. at 103-107). It was signed on behalf of

the International Union by Ellis Hockenberry, Asst. to

the Chairman of the IUE’s Westinghouse erence

Board and by officers of Local 449. Three of the five

Local officers who signed the ment were women.

(C.A. App. 106). Three fourths of the Local Union mem-

bership is female. (See chart at C.A. App. 165).

* >

Statement of the Case.

App. 104, 108-9). Thus, Westinghouse and the IUE and

Local 449 reviewed all the jobs in the Trenton Plant and

agreed in writing in 1968-1970 that all jobs were classi-

fied in proper relationship to each other.

As previously noted, Plaintiffs have not disputed

that, since February 1965, all jobs in the Trenton Plant

have been open for bid by both sexes on the basis of

seniority.14 Thus, women admittedly have been able to

select whatever jobs they desired over the entire period

since enactment of Title VII under the seniority system

in operation at the plant, which had been negotiated

with the plaintiff Union. However, most women have

continued to voluntarily select the light assembly and

inspection type work rather than the heavier and dirtier

jobs or the skilled craft jobs (which are the jobs still

largely populated by males). Nevertheless, in order to

assure that women (and minorities) were working in

jobs which they desired, a special program (the Upward

Mobility Affirmative Action Program) was created by

Westinghouse in 1975 to contact every single woman

and minority employee of the Plant and offer them

special training, transfer rights and rate protection if

they wanted to move to any job in which a significant

number of women were not already working. The record

shows that only four women requested jobs upon

which women were not already working in a significant

number.15

Thus, this case presents the situation of women

who have wanted to occupy light assembly and inspec-

14. Answers of Plaintiff Marge Brophy to Inter-

ry by Defendant, adopted by all Plaintiffs (C.A.

pp. :

15. Affidavit of H. A. Sieber, filed on June 17, 1977,

in the district court (C.A. App. 101).

Statement of the Case.

tion jobs but nevertheless claim they should receive the

higher wage rates of jobs they have elected not to take.

Westinghouse did not believe that, under the legal

standards applicable to sex-based wage rate claims, it

was required to undergo the massive job evaluation

trial that would have resulted from Plaintiffs’ conten-

tions in the wage rate area. Accordingly, since Plaintiffs

had admitted in discovery that their wage claims did

not assert that men and women were paid differently

when performing equal work, Westinghouse sought and

obtained summary judgment on Plaintiffs’ claims re-

garding the pay rates for the jobs in the plant. The

district court held that Plaintiffs’ allegations did not

state a claim upon which relief could be granted under

Title VII. The district court, after considering the legis-

lative history, administrative interpretations, and prior

decisions, held that Congress desired “to limit the scope

of judicial intervention into the business place” when

it adopted the “equal work” standard in the Equal Pay

Act and that Congress also intended the “equal work”

standard to be incorporated into Title VII as reflected

in the second sentence of Section 703(h) thereof—the

Bennett Amendment. The district court rejected Plain-

tiff’s theory that the Bennett Amendment only intended

to incorporate the four affirmative defenses contained in

the Equal Pay Act, but not the core “equal work” stand-

ard of that earlier Act. In response to a motion by Plain-

tiffs, the district court entered final judgment on the

wage claims in the Complaint pursuant to Fed. R. Civ.

P. Rule 54(b) (App. D, infra). The Plaintiffs then ap-

pealed to the Third Circuit. In a split decision, a panel of

the Third Circuit found that the “equal work standard”

would not apply to claims by blacks or Jews or Italians

Summary of Reasons for Granting the Present Petition.

[an issue which was not before them], and that notwith-

standing the Bennett Amendment, Congress must not

have intended any different treatment of women (App.

A, infra). On October 29, 1980, the Third Circuit issued

an order denying Westinghouse’s Petition For Rehear-

ing, which had requested a rehearing by the original

panel as well as a rehearing in banc. 7

SUMMARY OF REASONS FOR GRANTING

THE PRESENT PETITION

The legal issue presented by this case is obviously

an important one for employers, entire industries, the

economy, the court system and the public. As discussed

herein, this Court has previously recognized the impor-

tance of this issue by granting a writ of certiorari to

review the Ninth Circuit’s decision which raises the

same legal issue as the present petition, i.e., County of

Washington v. Gunther, No. 80-429, cert. granted, No-

vember 3, 1980. In addition to the importance of this

issue, the conflict of the decision below with the deci-

sions of five other circuit courts (the 10th, 4th, 5th,

8th, and 6th) also provides a strong basis for granting

the writ of certiorari. Moreover, the Third Circuit’s de-

cision conflicts with prior decisions of this Court, as set

forth infra at 23-29, in the following respects: (1) by

reason of the principle of in pari materia statutory con-

struction, when Congress has carefully deliberated upon

a subject (such as in the Equal Pay Act) the restric-

tions and limitations set forth in that earlier statute

(such as the equal work requirement) should not be

disregarded in the interpretation and application of a

subsequent statute absent a specific statement of Con-

gressional intent to that effect in the subsequent statute,

“

Summary of Reasons for Granting the Present Petition.

(2) by reason of the Bennett Amendment, the equal pay

for equal work provisions of the Equal Pay Act were

intended to be applicable to claims of sex discrimination

in compensation brought under Title VII, and (3) the

original official administrative interpretation of a stat-

ute (here the EEOC’s original official view of the Ben-

nett Amendment, which supports Westinghouse) is the

agency interpretation most entitled to deference,

There are good reasons that the Court should set

the present case for briefing and argument on the

merits, in addition to the Gunther case. First, this case

is a good example of how disregard of the equal work

standard will lead to prolonged excursions into aeons of

industrial history and will lead to massive job evalua-

tion trials and complex job comparisons by the federal

courts in order to determine what the present wage

rates and wage relationships between jobs should be.

The present case involves an old industrial plant and a

large industrial union. The scope of Plaintiffs’ claims

and the magnitude of the relief sought herein also pro-

vide a good example of the probable impact of the doc-

trine of broad federal court involvement in the area of

alleged sex discrimination in wage rates, which cur-

rently is being advocated by these Plaintiffs as well as

various governmental agencies. Moreover, as discussed

infra at 14-17, there is direct legislative history regard-

ing these claims by this same Union regarding this very

plant which were presented to Congress. The Congres-

sional response was a flat rejection of the concept of

federal court involvement in these types of claims.

Finally, the present case has been extensively briefed

below and the opinions of the district court and the dis-

sent in the court of appeals provide a thorough debate

of both sides of the issues herein. For example, the dis-

Reasons for Granting the Present Petition.

sent below contains a well-reasoned discussion of vari-

ous issues, such as the principles of in pari materia

statutory construction, which are absent from the Ninth

Circuit’s Gunther opinion. Thus, the grant of Westing-

house’s Petition would complement the grant of cer-

tiorari in the Gunther case. For the reasons more fully

set forth in Westinghouse’s Response To The IUE’s

Petition For A Writ Of Certiorari, which also has been

filed this date, the present Petition filed by Westing-

house, as the party aggrieved by the decision below,

should be the one granted, rather than the Petition filed

by the IUE.

REASONS FOR GRANTING THE

PRESENT PETITION

I. This Issue Is An Important One That Is Presently

Pending Before The Court. A Writ Of Certiorari

Should Be Granted In The Present Case Also, To

Provide For A More Extensive Presentation Of The

Subject.

On November 3, 1980, this Court granted a petition

for a writ of certiorari to the United States Court of

Appeals for the Ninth Circuit in the case of County of

Washington v. Gunther (Case No. 80-429) .16 The legal

issue presented by the Gunther litigation is the same

legal issue presented herein—whether sex-based dis-

crimination claims under Title VII must satisfy the

equal work standard of the Equal Pay Act.17 Plaintiffs

16. Gunther v. County of Washington, 623 F.2d

1303 (9th Cir. 1979), rehearing denied, 623 F.2d 1317,

cert. granted, No. 80-429 (Nov. 3, 1980).

17. County of Washington v. Gunther, No. 80-429,

Petition for Writ of Certiorari at i.

Reasons for Granting the Present Petition.

herein relied heavily upon the Ninth Circuit’s Gunther

decision in their briefs to the Third Circuit, and the ma-

jority opinion in this case acknowledged several times

that it was persuaded by the Gunther opinion (App. A,

infra, at 25a and 31a-32a).

The issue in this case is an important one for em-

ployers, employees, and the courts. Congress, after

eighteen months of deliberations, made a judgment in

1963 that it desired only limited involvement by the

federal courts in the setting of wage rates, as reflected

in its rejection of broader approaches and the adoption

of the more narrow equal work standard.18 There is no

suggestion anywhere in the legislative history of Title

VII that the same Congress which had just enacted the

Equal Pay Act completely reversed its attitude just one

year later and countenanced broad involvement by the

federal courts in the wage area. Yet that is exactly what

the opinion of the Third Circuit in the present case per-

mits. Since the Third Circuit Opinion eliminates both the

Bennett Amendment and the principle of in pari materia

statutory construction as restrictions upon claims of

sex discrimination in wage rates—the equal work stan-

dard will no longer provide a limitation upon the types

of wage rate claims which plaintiffs may assert. Vir-

tually every type of claim regarding sex discrimination

in wage rates that can be imagined must now be adjudi-

cated by the trial courts. We believe that this will be

an extensive burden upon the courts, as well as employ-

ers, and one that was not intended by Congress. More-

over, the elimination of the equal work standard has

potentially broad implications for the economy as a

whole.

18. See discussion infra at 14-17.

Reasons for Granting the Present Petition.

We believe that the grant of certiorari in the pres-

ent case would complement the grant of certiorari in

Gunther for a number of reasons. For example, the

present case is a particularly appropriate one to resolve

this important issue since the lead plaintiff in this case,

the IUE, presented to Congress the very same conten-

tions asserted in this suit regarding this very plant of

Westinghouse in the course of the hearings on the Equal

Pay Act, and Congress amended the language of the

Equal Pay Act to preclude federal involvement in such

types of claims.

The legislative history of the Equal Pay Act of

1963 indicates a clear concern and a deliberate decision

by Congress as to how the Government should deal with

a prior history of separate wage structures for men and

women—a practice which was not then uncommon in

American industry.19 Some legislators and the unions

favored a system of broad intervention by the federal

courts so as to allow claims of sex discrimination in

wage rates to be stated in situations where mer and

women were paid differently for performing jobs which

were “comparable.” Accordingly, the original bills pro-

vided for the broad “comparable work” approach. H.R.

8898, 87th Cong., Ist Sess.; H.R. 10226, 87th Cong., 2d

Sess.

Among those who testified in support of H.R. 8898

and H.R. 10226 was James Carey, President of the IUE.

19. See Hearings on H.R. 8898 and H.R. 10226 be-

fore the Select Subcomm. on Labor of the House Comm.

on Education and Labor, 87th Cong., 2d Sess., Part 1

(1962), at 65 (discussing a then recent survey of the

National Office Management Association wherein one-

third of the employers surveyed admitted to having dual

pay standards for males and females) [hereinafter “1962

Hearings” ].

Reasons for Granting the Present Petition.

Mr. Carey stated that he supported the “comparable

work’’ bill because it precluded:

“Paying women lower wages irrespective of

the value of the work performed. This occurs in

situations where men and women work in different

types of jobs in the same plant.” 1962 Hearings

at 173.

In support of the “comparable work” bill, Mr. Carey put

before Congress in 1962 the very allegations regarding

the Trenton Plant later set forth in the Complaint in

the present case.20

20. In an effort to have Congress adopt such wage

discrimination legislation not limited to equal work

situations, Mr. Carey stated: “In Westinghouse for

many years there existed two pay scales—one for women

and one for men. In most cases the top of the women’s

scale was equal to the lowest part of the men’s scale.”

1962 Hearings at 175. After explaining that the alleged

two separate pay scales had been eliminated. Mr. Carey

continued : “However, in combining the two wage scales,

Westinghouse put all the female jobs at the bottom of

the ladder. Therefore, although in most plants [West-

inghouse] do[es] not have two wage scales, one for the

women and one for men, the effect is virtually the same.”

1962 Hearings at 175. Mr. Carey cited an example from

this very plant of what he hoped would be wage dis-

crimination under the proposed comparable work stand-

ard: “In our Westing e plant at Trenton, N.J., the

female quality-control worker, who requires 12 months’

experience gets $2.10 an hour. The male janitor who re-

quires no experience gets $2.111, an hour.” 1962 Hear-

ings at 175-176 (emphasis added). Mr. Carey then pre-

sented a Westinghouse employee, who testified that jobs

performed by women in lamp plants (such as feeding

the glass envelope into the machines or taking the finish-

ed bulb out of the machine or performing inspection ) —

were “comparable” to totally different jobs performed

by men (such as material handling or mechanical maint-

enance) when the training, skill and value of the work

Reasons for Granting the Present Petition.

However, Congress explicitly rejected the “com-

parable work” approach in order to preclude broad fed-

eral intervention in the setting of wage rates. Congress

determined that its response to a history of dual wage

structures for men’s and women’s jobs would not be a

reouirement that the entire wage structure of a plant or

an industry be revised, but only that equal pay be as-

sured when equal work was performed. The debate on

H.R. 6060 is very instructive with respect to Congress’

intent to prevent the courts and the government from

changing wage rates in all but the narrow equal work

situation. For example, Representative Frelinghuysen

stated in the House:

“TWle can expect that the administration of the

equal pay concept, while fair and effective, will not

be excessive nor excessively wide ranging. What we

seek is to insure, where men and women are doing

the same job under the same working conditions,

that they will receive the same pay. It is not in-

tended that either the Labor Department or indi-

vidual employees will be equipped with hunting

licenses.” (emphasis added) 109 Cong. Rec. 9196.

Representative Goodell (the sponsor of H.R. 6060)

stated:

“Last year when the House changed the word ‘com-

parable’ to ‘equal’ the clear intention was to narrow

the whole concept. We went from ‘comparable’ to

‘equal’ meaning that the jobs involved should be

virtually identical; that is, they would be very much

was considered. 1962 Hearings at 183-189. Mr. Carey

urged passage of the “comparable work” bill to remedy

the above alleged sex discrimination and involve the

government, inter alia, in the wage structure of the

Trenton Plant.

Reasons for Granting the Present Petition.

alike or closely related to each other.” 109 Cong.

Rec. 9197.

Representative Frelinghuysen also noted:

“As indicated earlier, it is not intended to compare

unrelated jobs, or jobs that have been historically

and normally considered to be different.” 109 Cong.

Rec. 9196.

As discussed, infra, at 25-29, when the sex discrimi-

nation provisions of Title VII (which were a late addi-

tion to the bill) were discussed by that same Congress,

it was clearly contemplated that the above deliberations

and conclusions, reflected in the Equal Pay Act’s equal

work standard, would not be reversed by the sex dis-

crimination provisions of Title VII. In fact, the Bennett

Amendment was introduced to assure that there would

be no such reversal. However, the point for considera-

tion here is that the present case, with its directly rele-

vant legislative history regarding the Trenton Plant in

the Equal Pay Act hearings, is a particularly appro-

priate example of how the approach of the Third Circuit

is directly contrary to the Congressional intention that

the federal courts have only a limited involvement in a

company’s wage structure.

There are several other reasons that the present

case is a good one for resolution of this legal issue. This

case involves a large industrial plant with more than one

hundred separate job titles, seventy-one of which Plain-

tiffs claim are underpaid in relation to the others. This

case provides a good example of the scope of the burden

that will be placed on private employers and the courts

from broad scale litigation of wage structures, as well

as the magnitude of the economic impact upon a plant,

an employer, or an entire industry which could result

Reasons for Granting the Present Petition.

from a broad scale elevation of wage rates—which is

precisely the relief sought by Plaintiffs herein and pre-

cisely the type of intervention rejected by Congress in

the Equal Pay Act.

This is not an isolated case. There are similar cases

pending regarding other Westinghouse plants in other

circuits. Moreover, countless other employers in the

United States might be alleged to have had “male” and

“female” jobs back in the era before enactment of Title

VII. If the courts must examine the wage structure of

each of those employers in the 1930’s and 1940’s as well

as what has happened to that structure to date, the

cost and burden of that examination on the court sys-

tem, as well as employers, will be overwhelming.21

The present case also is a good one for resolution

of this legal issue because the Plaintiffs’ admission that

they could not meet the equal work standard and the

district court’s subsequent entry of summary judgment

on that basis makes the dispute herein a pure question

of law. Moreover, the district court’s thorough opinion

and the presence of a well-reasoned dissent to the ma-

jority opinion in the court of appeals also has provided

a thorough debate on the issues. For example, that dis-

sent contains a perceptive analysis of the proper appli-

cation of the principles of in pari materia construction

of the Equal Pay Act and Title VII—a subject which is

not even mentioned in the Ninth Circuit’s opinion in

Gunther, supra.

Although Westinghouse believes that a writ of cer-

tiorari should be granted to review the present case as

well as the Gunther case for the above reasons and al-

21. The IUE, alone, has filed EEOC charges cover-

ing literally scores of Westinghouse facilities.

Reasons for Granting the Present Petition.

though Westinghouse concurs with the IUE that the

present case is an important one, we wish to make clear

that Westinghouse does not subscribe to various of the

other contentions advanced in the IUE’s Petition For A

Writ Of Certiorari. For example, in said Petition at 11

the IUE claims that this Court should take review of

the present case because the IUE contends that the

Plaintiffs herein did not intend to “rely upon any com-

parisons of job content to prove their claim of discrimi-

nation,” while the Gunther case would involve such com-

parisons. That contention is not correct, as is established

by the numerous answers to interrogatories and other

pleadings filed by the Plaintiffs in this case—some of

which are cited and quoted supra at 3-7. Of course,

Plaintiffs also intended to rely upon the alleged prior

existence of a dual wage structure and certain portions

of a 1938 industrial relations manual which the IUE has

discussed in its Petition.

The existence of the 1938 manual would neither re-

move the necessity for job comparisons nor enable a

trial court to escape the vagaries and complexities of

job evaluation if the limitations of the equal work stand-

ard were not recognized and this case were set for trial.

Let us consider just a few examples of factual issues

that would envelop the court regarding job evaluation.

As discussed supra at 4, whether a male and a female

job may have received the same number of evaluation

points under that 1938 manual was obviously not in-

tended as a judgment as to their relative economic worth

either to the Company or the labor market, since the

male jobs were being evaluated thereunder for place-

ment on a male wage curve and the female jobs for

placement on a female wage curve. Because there were

to be two separate wage curves, there was no need for

Reasons for Granting the Present Petition.

the 1938 manual to fully weight the factors, such as

working conditions and physical effort, which in those

days (by reason of, inter alia, state protective laws re-

flecting social convention, etc.) differentiated the male

and the female jobs. In 1938, the Company needed only

a system which ranked the men’s jobs in relation to

each other for the male curve consistently with the way

they would be ranked in the labor market for jobs with

those types of duties, and which ranked the women’s

jobs in relation to each other for the female curve con-

sistently with the way that they would be ranked in the

labor market for jobs with those types of duties. The

Company did not need a system which ranked the men’s

jobs versus the women’s jobs.22 Moreover, the relevant

inquiry at a trial (assuming that a trial were authorized

in other than equal work situations) would not be what

the jobs were worth back in 1938. The relevant question

22. Even the portion of the 1938 manual quoted in

the IUE’s Petition at 7 noted that said manual did not

adequately consider the differences in environmental

conditions on women’s jobs or the fact that others would

have to be brought in whenever heavy work was in-

volved, since these features would be picked up by the

creation of a separate wage curve for women. Since a

separate wage curve for women was intended, the fac-

tors such as physical effort and working conditions—

which differentiated women’s jobs from men’s jobs—

may not have been fully reflected in the relative weight-

ing of (i.e., the number of evaluation points allocated

to) the factors contained in the 1938 job evaluation

manual. One cannot assume that, had a single wage

curve, including both the male and the female jobs, been

planned, that the same relative point ratings for physi-

cal effort and working conditions or the other factors

would have been used. Actually, that would have been

highly unlikely since it would have put Westinghouse

totally out of line with the general labor market. Under

the 1938 manual, the wage rate for the various jobs on

Reasons for Granting the Present Petition.

is what are they worth now, in the 1970’s and 1980’s.23

Thus, in ascertaining the current propriety of the rela-

tionship of the jobs in the Trenton Plant or any other

plant today, as well as in formulating any award of

back pay or directing revisions in pay levels should a

violation be found, a trial court would inevitably be re-

quired to engage in job comparisons.

The purpose of this discussion is not to convince

the Court whether the IUE or Westinghouse is correct

as to what happened in the design of the 1938 manual—

even assuming that were possible to ascertain at this

point. The actual resolution of these factual issues is

not relevant to the issue before this Court—which is a

pure legal issue as to whether the equal work standard

was intended by Congress as a prerequisite to sex-based

compensation claims under Title VII. However, the fact

that these many factual issues relating to job evaluation

would exist if the limitations of the equal work standard

were not observed and this case were sent to trial pro-

vides a realistic context for the resolution of the pure

legal issue presented by this Petition. Such a trial would

the curves were set (and the wage curves were thus con-

structed) according to the respective labor market rates

for the different types of jobs (C.A. App. 160). As the

1956 key sheet reflected in the IUE’s Petition at 8 indi-

cates, the light assembly and inspection jobs performed

by the women were worth less in the labor market than

the material handling and craft jobs and were paid less.

23. As discussed supra at 6-7, there have obviously

been numerous changes in job duties and job content,

combinations of jobs, splitting of jobs, creation of totally

new jobs, etc., over the past forty , a8 well as nu-

merous up gs and down gs of jobs in the

plant and agreements with the Union regarding the

relative relationships of jobs.

Reasons for Granting the Present Petition.

clearly immerse the federal court system in the vagaries

and complexities of the evaluation of jobs with different

content, a function which we submit was clearly re-

jected by Congress in full contemplation of the nature

of the claims asserted by the IUE regarding this very

plant of Westinghouse. 24

Thus, we believe that the Court has already recog-

nized, through the grant of certiorari in Gunther, that

this issue regarding the interpretation of the Bennett

Amendment and the interrelationship of the Equal Pay

Act and Title VII is an important one for employers and

employees, as well as one that is likely to have a great

impact on the workload of the federal court system. We

submit that the present case would provide a good com-

panion to the Gunther case as a vehicle for resolution

of this issue. While the present case and Gunther both

raise the same legal issue, the present case has some

additional characteristics, e.g., the directly relevant

legislative history of the Equal Pay Act, an industrial

setting, and the issue being presented as a pure question

of law, which complement the characteristics of the

Gunther case. Furthermore, the Gunther case involves

a public employer. The present case demonstrates the

impact of this issue in the private sector as well. For all

of these reasons, the grant of certiorari in this case, as

well as Gunther, may provide a broader frame of refer-

ence and may assist the Court’s examination of the legal

issue raised by both cases.

24. See discussion supra at 14-17.

Reasons for Granting the Present Petition.

Il. The Third Circuit’s Decision Is In Conflict With

Prior Decisions Of This Court, As Well As With

Decisions Of Five Of The Six Other Circuits That

Have Considered This Issue.

The decision below held, in accord with the Ninth

Circuit in Gunther, supra, that the language of the Ben-

nett Amendment meant to incorporate into Title VII

only the Equal Pay Act’s affirmative defenses, and not

the basic equal work standard. The Third Circuit, like

the Ninth Circuit, acknowledged that the language of

the Bennett Amendment might plausibly be read to have

incorporated the basic equal work standard as well as

the affirmative defenses. However, the court of appeals

rejected the incorporation of the equal work standard

because that court stated that it would not acknowledge

any special treatment of the problem of sex discrimina-

tion absent “explicit statutory language or Supreme

Court holdings.” (App. A, infra, at 16a). The Third

Circuit’s decision is not only in conflict with the logical

meaning of the language of the Bennett Amendment but

also with decisions of the Tenth, Fourth, Fifth, Eighth

and Sixth Circuits which have taken the position that

the basic equal work standard was made applicable to

Title VII wage claims by the Bennett Amendment and

the principle of in pari materia statutory construction.25

25. Lemons v. City and County of Denver, 620 F.2d

228, 229-30 (10th Cir. 1980), cert. denied, 49 U.S.L.W.

3250 (Oct. 6, 1980); Ammons v. Zia Co., 448 F.2d 117,

120 (10th Cir. 1971) ; Stastny v. Southern Bell Telephone

& Telegraph Co., 628 F.2d 267, 281 (4th Cir. 1980);

Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th Cir.),

cert. denied, 434 U.S. 904 (1977) (affirming —— F.Supp.

——,, 23 W.H. Cases 319, 328-29 (W.D.N.C. 1976) ); Orr

v. MacNeill & Son, Inc., 511 F.2d 166, 170-71 (5th Cir.),

cert. denied, 423 U.S. 865 (1975) ; DiSalvo v. Chamber of

Commerce, 568 F.2d 593, 596 (8th Cir. 1978) ; Calage v.

Reasons for Granting the Present Petition.

In addition, there are three major points upon which

the Third Circuit’s decision conflicts with prior decisions

of this Court. First, the Third Circuit has explicitly re-

fused to apply the principle of in pari materia statutory

construction. The court of appeals acknowledzed that

under that principle the equal work standard carefully

adopted by Congress in the Equal Pay Act of 1963 would

be applicable to Title VII unless there were a clear indica-

tion otherwise in the legislative history of Title VI

(App. A, infra, at 18a). The Third Circuit admitted that

application of that principle, as reflected in this Court’s

decision in Radzanower v. Touche, Ross & Co., 426 U.S.

148, 153 (1976), suggested that Title VII should be in-

terpreted as adopting the equal work standard. The

Third Circuit failed to note two other decisions of this

Court which had been discussed in the briefs and argu-

ment. In Train v. Colorado Pub. Int. Research Group,

Inc., 426 U.S. 1 (1976), this Court, in reconciling the

Atomic Energy Act with the later federal Water Pollu-

tion Control Act, emphasized that meticulous work of

an earlier Congress should not be considered to have

been discarded absent a clear indication in a later en-

actment that Congress intended to do so. This Court

pointed out that the Atomic Energy Act was a major

piece of legislation which had been carefully considered

in Committee and by Congress to establish a thorough

and pervasive regulatory scheme. Similarly, the Equal

Pay Act represents a major piece of legislation in the

wage area and it would be highly improper to discard

Congress’ eighteen months of meticulous work absent

some clear indication that Congress intended to do so in

Title VII. Neither the Plaintiffs nor the Third Circuit

has ever pointed to any statement in the legislative his-

University of Tennessee, 400 F.Supp. 32 (E.D. Tenn.

1975), aff'd, 544 F.2d 297 (6th Cir. 1976).

Reasons for Granting the Present Petition.

tory which states or even suggests that Congress in-

tended to reverse its prior adoption of the equal work

standard. The most that Plaintiffs and the Third Circuit

have said is that the statements which appear to sup-

port Westinghouse are somewhat ambiguous. Even if

those statements were ambiguous (which we submit

they are not)—ambiguity would not be a basis for re-

jection of the prior Congressional adoption of the equal

work approach.

The Third Circuit’s opinion also conflicts with the

opinion of this Court in United States v. United Conti-

nental Tuna Corp., 425 U.S. 164 (1976), which involved

a situation similar to the present. This Court noted that

the issue in that case was not whether a particular stat-

ute would no longer have application to a particular set

of facts, but whether the restrictive provisions thereof

could be evaded by asserting jurisdiction under another

statute, a similar situation to what we have here. This

Court noted that such an evasion of the restrictive pro-

visions would be tantamount to repeal of the more re-

strictive statute and would not be permitted by the

Court absent some clear statement of intent by Congress

that such was intended by the latter statute.26

26. The Third Circuit mistakenly refused to comply

with these decisions because it incorrectly believed that

this Court’s decision in Alexander v. Gardner-Denver

Co., 415 U.S. 36 (1974) made those principles of in pari

materia statutory construction inapplicable to employ-

ment discrimination cases. But, Alexander merely held

that an employee’s election to proceed in one forum

(arbitration) did not bar him from proceeding under

Title VU. This certainly did not suggest that the prin-

ciples of in pari materia construction were not applica-

ble to interpretation of Congress’ intent regarding the

meaning of the substantive provisions of discrimination

statutes. The Third Circuit had mistakenly relied upon

Alexander as the basis for the same incorrect premise

Reasons for Granting the Present Petition.

A second point of conflict arises from the Third

Circuit’s incorrect reading of this Court’s decision in

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

Regarding General Electric, the Third Circuit stated:

“With the Bennett Amendment the Equal Pay Act ez-

ceptions became ‘applicable to Title VII as well.’ General

Electric v. Gilbert, 429 U.S. at 144 (Equal Pay Act provi-

sions on pregnancy benefits are controlling) .”” However,

what this Court actually said in General Electric was:

“Because of this [Bennett] amendment, interpretations

of §6(d) of the Equal Pay Act are applicable to Title VII

as well...” 429 U.S. at 144. This Court, as part of its

General Electric holding that no violation of Title VII

existed, quoted and relied upon a regulation of the

Wage and Hour Administrator which interpreted the

core (“equal pay for equal work”) provision of the

Equal Pay Act—not one of that Act’s affirmative de-

fenses. 429 U.S. at 144. The Court took this approach

after emphasizing that the Congressional intent re-

flected in the Equal Pay Act was very relevant, espe-

cially in light of the brevity of legislative history re-

garding Title VII’s sex provisions. 429 U.S. at 143. It is

curious that the Third Circuit’s Opinion contains no

discussion of the Equal Pay Act legislative history

in Novotny v. Great American Federal Savings & Loan

Ass’n., 584 F.2d 1235 (3d Cir. 1978). This Court in re-

versing the Third Circuit made clear that it is Congres-

sional intent that is the critical inquiry. igen, v.

Great American Federal Savings & Loan Ass’n., 442 U.S.

366, 378 (1979). This Court’s Novotny decision rejects

vo attempt to utilize Alexander to Ne po a statute’s

substantive meaning.29 Thus, the Third Circuit has not

justified its acknowledged refusal to apply the principle

of in pari materia statutory construction, and its refusal

pd apply that principle conflicts with prior decisions of

is Court.

Reasons for Granting the Present Petition.

wherein Congress rejected the IUE’s request that tho

broad “comparable work” standard be adopted so that

it could attack the wage structure of Westinghouse’s

Trenton Plant and, instead, Congress adopted the “equal

work” standard because of a Congressional desire for

only limited federal involvement in wage rates.27

The decision below also conflicts with the decisions

of this Court holding that contemporaneous interpreta-

tions of a statute by administrative agencies are the

ones most entitled to deference. General Electric, supra,

429 U.S. at 142; Udall v. Tallman, 380 U.S. 1, 16 (1965).

The regulations issued by the EEOC, interpreting the

Bennett Amendment, in 1965, stated that: “. .. the Com-

mission interprets section 703(h) to mean that the stan-

dards of ‘equal pay for equal work’ set forth in the

Equal Pay Act for determining what is unlawful dis-

crimination in compensation are applicable to Title VII.”

(App. E, infra, at 92a). The 1965 interpretation con-

tained no suggestion that the Bennett Amendment was

intended to incorporate only the Equal Pay Act’s af-

firmative defenses. When the EEOC issued revised regu-

+. lations on sex discrimination in 1972, it eliminated. the

“Statement in the prior regulations which indicated

that Section 703(h) incorporated the equal work stand-

ard.28 After the decision in this case, Westinghouse

obtained from the EEOC, for the first time, a 1967

opinion by the EEOC’s Acting General Counsel which

interprets the words of the Bennett Amendment as does

27. See pp. 14-17, supra.

28. The new regulations, instead, somewhat am-

biguously stated: “By virtue of Section 703(h), a de-

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

proceeding under Title VII.” (App. E, infra, at 93a).

Reasons for Granting the Present Petition.

Westinghouse and is directly contrary to the interpre-

tation urged by the EEOC, appearing as amicus curiae,

before the Third Circuit and adopted by the Third Cir-

cuit. The 1967 opinion acknowledges that the equal work

standard (i.e., equal skill, effort, responsibility, and

working conditions), not merely the Equal Pay Act’s

affirmative defenses (i.e., seniority systems, merit sys-

tem, etc.), was incorporated by the phrase “authorized’”’

in the Bennett Amendment.29 If a writ of certiorari is

granted, Westinghouse will discuss other early opinion

letters issued by the EEOC General Counsel to the gen-

eral public which similarly indicate that the equal work

standard was intended by the Bennett Amendment to

be a prerequisite to assertion of a sex-based wage dis-

crimination claim under Title VII.3° In the late 1960’s

29. That opinion (App. F, infra, at 94a-97a) also

makes clear that the statement in Section 1604.8(a) [re-

ferred to as Section 1604.7 at the time of the 1967 opin-

ion] that the “employee coverage of the prohibitions

against discrimination based on sex contained in Title

VI is coextensive with that of the other prohibitions

contained in Section 703 and is not limited by Section

703(h) to those employees covered by the Fair Labor

Standards Act” was, as Westinghouse had urged to the

court of appeals, a reference to the jurisdictional and

procedural matters of “employee coverage” and did not

refer to whether the elements of the equal work standard

were intended to be incorporated by the word “author-

ized.” Thus, the Third Circuit majority opinion which

relied on a narrow definition of the phrase “authorized”

(App. A, infra, at 16a) and the reference in the regula-

tions to “employee coverage” (App. A, infra, at 29a-31a)

is contradicted on both counts by the 1967 opinion.

30. E.g., the May 19, 1966, opinion letter of EEOC

General Counsel Charles T. Duncan. These opinions,

which confirmed the interpretation that Westinghouse

had urged regarding the Bennett Amendment and the

Reasons for Granting the Present Petition.

and early 1970’s the EEOC began to change its interpre-

tation and in 1972 changed its regulations, as discussed

above, to delete the incorporation of the equal work

standard and to refer instead only to a “defense” based

on the Equal Pay Act. The Third Circuit erred in look-

ing to these latter interpretations of the Bennett Amend-

ment rather than the approach taken by the EEOC’s

1965 regulations, issued contemporaneously with the

statute. General Electric, supra; Udall, supra.

Thus, the decision below conflicts not only with

opinions of other circuits, but also with those of this

Court.

EEOC’s 1965 regulations, were submitted to the Third

Circuit as part of Westinghouse’s petition for rehearing

which was denied.

Fr,

Conclusion.

CONCLUSION

For all of the foregoing reasons, Westinghouse be-

lieves that its Petition For Writ Of Certiorari should

be granted, and that this case should be set for argu-

ment. This case could be scheduled for argument at the

same time as the Gunther case. The briefing schedule

herein could be adjusted, if deemed appropriate by the

Court, to provide for argument at the same time as the

Gunther case. For the reasons set forth at 2-4 of Westing-

house’s Response To The IUE’s Petition For A Writ Of

Certiorari, filed simultaneously herewith, Westinghouse

believes that the Petition For A Writ Of Certiorari filed

by the IUE, which was not aggrieved by the decision

below, should be denied.

‘

Respectfully submitted,

WALTER P, DEF oREsT, III*

PETER D. POST

MARTHA HARTLE MUNSCH

Reed Smith Shaw & McClay

747 Union Trust Building

Pittsburgh, PA 15219

STUART I. SALTMAN

Westinghouse Electric Corporation

Room 1209, Westinghouse Bldg.

Room 1209, Westinghouse Building

Pittsburgh, PA 15222

Counsel for Petitioner

Westinghouse Electric Corporation

*Counsel of Record

APPENDIX

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-1893 and 79-1894

INTERNATIONAL UNION OF ELECTRICAL, RADIO

AND MACHINE WORKERS, AFL-CIO-CLC, an

unincorporated association, IN TERNATIONAL

UNION OF ELECTRICAL, RADIO AND MA-

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

an unincorporated association, INTERNATIONAL

UNION OF ELECTRICAL, RADIO AND MA-

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

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

EVIEVE ARNETT, J OSEPHINE BAKER, MARGE

DINNAN BROPHY, HENRIETTA BROWN,

DOROTHY M. BURTON, MINNIE CHATMAN,

MARY E. COBB, A. CONTENTO, MELVINA

COOPER, JEAN CORBIN, N ORMA DOYLE,

ELEANOR DYE, TANYA FOURSHEE, D. FOW-

LER, DOROTHY GAINES, MARTHA GANT,

MADELINE GIESE, L. M. HARRIS, DOROTHY

HAYES, ELEANOR HUNKER, PAULINE LEE,

J. LINDENTHAL, OLLIE LITTLE, MADELINE

MARTINO, D. P. MASSI, RENA McLEOD, §S.

McNEIL, PATTI MITCHELL, ROBERTA MOORE,

MABEL MORRELL, MILDRED OCIKI, HELEN

O’LOUGHLIN, MARY PFISTER, ANN RAHO, R.

RAINEAR, P. . RUTOWSI, LORETTA RYAN, JL.

SHELDON, V. VAUGHN, HELEN WALSH, and

SHIRLEY WATKINS, on behalf of themselves and

on behalf of all persons similarly situated,

WESTINGHOUSE ELECTRIC CORPORATION, a cor-

poration

Appendiz A.

International Union of Electrical, Radio and Machine

Workers, AFL-CIO,CLC (“IUE’’) and Local 449

and 627,

Appellants in 79-1893

Marge Brophy, Henrietta Brown, Melvina Cooper, Ann

Raho Frazier and Helen Walsh, on behalf of them-

selves 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: SerTz, 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

Appendix A.

WINN NEWMAN

CAROLE W. WILSON

1126 Sixteenth Street, N.W.

Washington, D.C. 20036

RICHARD B. Sosou (Argued)

ANN H. FRANKE

Sobol & Trister

910 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Union Appellants

LEROY D. CLARK —

General Counse

JOSEPH T. EppDINS

Associate General Counsel

BEATRICE ROSENBERG

Assistant General Counsel

VINCENT J. BLACKWOOD

Attorney

ual Employment Opportunity Commission

1 E Street, N.W.

Washington, D.C. 20506

Drew S. Days, III

Assistant Attorney General

DAvip L. ROSE

SANDRA L. HUGHES

Attorneys

Department of Justice

Washington, D.C. 20530

Attorneys for Amici Curiae

Equal Employment O tunity

Commission and the United States

VIRGINIA FENTON

Carpenter Bennett & Morrissey

744 d Street

Newark, New Jersey 07012

Appendiz A.

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 Employment Advisory Council

NORMAN REDLICH

Co-Chairman

NORMAN J. CHACHKIN

RICHARD T. SEYMOUR

Staff Attorneys

Lawyers’ Committee for Civil

Right Under Law

733 Fifteenth Street, N.W.

Washington, D.C. 20005

Attorneys for Amici Curiae

Lawyers’ Committee for Civil

Rights Under Law, et al.

Appendiz A.

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 attri-

butable to the fact that the company deliberately paid

lower wages for those types of work which would be

done predominantly by women. They \claimed this dis-

parity is in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. §§2000e-2-2000h-6.1

The district court held that Title VII did not prevent

sex discrimination in setting wage rates for different

1. This action was originally part of a larger action

filed in the Western District of Pennsylvania which al-

leged similar discriminatory practices at numerous

Westinghouse facilities. The counts involving the New

Jersey plants were severed and transferred to the Dis-

trict 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 em-

ployees performing ‘he 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 per-

formed by males, and (c) failing to afford [women]

the rights of promotion and transfer to better Rey:

ing a the "le — as a and (d) —

wise ording [women] unequal compensation,

terms, conditions and privileges of employment be-

cause of [their] sex.

Count Two, Complaint, 32, reprinted in App., at 25.

Appendix A.

categories of jobs unless it could be shown that the

jobs, regardless of the reason for their classification,

involved equal or substantially 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 predominantly held by men, the court

granted Westinghouse’s motion 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

totally free of ambiguity. Thus, at the outset it is essen-

tial 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

It also alleged that Westinghouse:

(1) had denied members of the plaintiff class

“[{t]he opportunity to work and at the same time

afforded all male employees a full eight hour shift

and in some instances afforded male employees ad-

<a overtime work”, Count Three, Complaint,

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

opportunity to work 8 hours per day as did all male

employees”, Count Four, Complaint 49, and

(3) had discriminated against one of the named

laintiffs “by uiring her to stop work thereby

epriving 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 2 reelorg of her personal physi-

cian for such work.” Count Five, Complaint 53.

App., at 25-32.

. Ta

Appendix A.

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-

ered within that category was predominantly female.

Under the applicable law it 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.2 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 vio-

lates Title VII, we will reverse.

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

pertinent part:

(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 to discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment, be-

cause of such individual’s race, color, religion, sex,

or national origin; or

(2) to limit, segregate, or classify his em-

ployees or applicants for employment in any way

which would deprive or tend to deprive any indi-

vidual of orig Grae opportunities or otherwise

adversely affect his status as an employee, because

of such individual’s race, color, religon, sex, or na-

tional origin.

Appendiz A.

Westinghouse’s present wage structure, according

to the plaintiffs,3 is derived from a wage structure West-

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

scribed in Westinghouse’s Industrial Relations Manual

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 oper-

ator, warehouseman, various material handling jobs, and

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

sifications 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 ac-

count 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 evalua-

tion 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-

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, (1970).

Appendix A.

other wage curve or Key Sheet for women below and not

parallel with the men’s curve.” Jd. 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

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

LG11 0 0

LG12 19 0

LG13 19 0

10a

Appendix A.

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 inequi-

ties established by the [1930] system.” Jd. 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

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 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 JUEH 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.

lla

Appendix A.

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.4 International Union of Electri-

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, JUE I, the claim of sex-

based wage discrimination was terminated and the is-

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

(b) JUDGMENT UPON MULTIPLE CLAIMS OR

INVOLVING MULTIPLE PARTIES. When more

than one claim for relief is presented in an action,

whether as a claim, counterclaim, cross-claim, or

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

volved, 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 determina-

tion 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 desig-

nated, which adjudicates 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

decision is subject to revision at any time before

the entry of judgment adjudicating all the claims

and the rights and liabilities of all the parties.

12a

Appendiz A.

sue 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 permit

certification.” JUE 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.

Ii.

At the heart of this appeal lies an amendment to

Title 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

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

Title 29.

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

Equal Pay Act of 1963, proscribes sex-based discrimina-

tion in compensation for the same or substantially the

same work except when the differential is the result of

13a

Appendix A.

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

tem which measures earnings by quantity or quality of

production; or (iv) a differential based on any other fac-

tor other than sex.’’5 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

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

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

(d)(1) No employer having employees sub-

ject to any provisions of this section shall discrim-

inate, within any esablishment in which such em-

ployees are employed, between employees on the

basis of sex by paying wages to employees in such

establishment at a rate less than the rate at which

he pays wages to employees of the opposite sex in

such establishment for equal work on jobs the per-

formance of which requires equal skill, effort, and

responsibility, and which are performed under simi-

lar working conditions, except where such payment

is made pursuant to (i) a seniority system; (ii) a

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

pn by quantity or quality of production; or (iv) a

ifferential based on any other factor other than

sex: Provided, That an employer who is paying a

wage rate differential in violation of this subsec-

tion shall not, in order to comply with the provisions

this subsection, reduce the wage rate of any em-

ployee.

14a

Appendix A.

limit the prohibition against sex-based discrimination in

wages to situations where the employees are performing

the same or substantially the same work, in the manner

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

urged by Westinghouse.

We have not found the resolution of this dispute to

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

gle document or statement which unambiguously gives

the Amendment meaning. Yet, each document we have

found pushes us slowly yet firmly to the conclusion that

the Bennett Amendment merely incorporates into Title

VII the four exceptions outlined in the Equal Pay Act,

the “broader coverage position”.

At the outset we note that the construction urged by

Westinghouse would result in a substantial limitation on

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

sex-based discrimination in employment.6 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 employer—

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

individual, or otherwise to discriminate against any

individual with ——. to his compensation, terms,

conditions, or privileges of employment, because of

such individual’s race, color, religion, sex, or na-

tional 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

employment opportunities or otherwise adversely

affect his status as an employee, because of such

individual’s race, color, religion, sex, or national

origin.

15a

Appendix A.

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

majority 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 em-

ployment 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

discrimination on the basis of race, religion, sex, or na-

tional origin as they are equally nefarious and equally

prohibited. For in Franks v. Bowman Transportation

Co., 424 U.S. 747, 763 (1976) (emphasis added) (cita-

tions omitted), 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 outlaw-

ing such discrimination should have the “highest

priority”. ...

16a

Appendix A.

In the absence of explicit statutory language or Supreme

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

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.7

We start our inquiry, as all inquiries involving sta-

tutory construction should, with the language of the

statute. 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, something

which is merely not prohibited.8 Thus, the plain lan-

7. We reject the argument made by amicus Equal

Employment Advisory Council that our task is easier

because it is clear that Congress wished to discourage

courts from becoming involved in “massive job evalua-

tion trial[s]” and Congress therefore limited the scope

of Title VII's prohibition against sex discrimination.

Since Congress was willing to permit “massive job eval-

uation trial[s]” if racial, religious or ethnic discrimina-

tion was charged, we cannot presume that they would

be fearful of such trials involving sex discrimination.

8. Webster’s Third New International Dictionary

146-47 (1961) defines “authorize” in the following man-

ner:

la: to endorse, empower, justify, or permit by or

as if by some recognized or proper authority ...:

SANCTION ...6...to furnish grounds for: JUS-

TIFY. 2...to vouch for...3...to give legality or

effective force to... 4a: to endow with authority or

effective power, warrant, or right: appoint, em-

wer, or warrant regularly, legally, or officially . . .

. to grant or allot by proper authority ...

17a

Appendix A.

guage 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 en-

dorsed 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,

suggests a contrary interpretation, for this language al-

ready provides for three of the four exceptions to the

Equal Pay Act.9 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).

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 employ-

ment practice for an employer to apply different

standards of compensation, or different terms, con-

ditions, or privileges of employment pursuant to a

bona fide seniority or merit system, or a system

which measures earnings by quantity or quality of

aban a or to employees who work in different

ocations, . .

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 sys-

tem which measures earnings by quantity or qual-

ity of production; or (iv) a differential based on any

other factor other than sex... .

18a

Appendiz A.

By making the acts coterminous Congress eliminated the

possibility that an employer would be subject to conflict-

ing 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

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.

19a

Appendix A.

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 pecsed 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

adopted, following a very brief colloquy. Only a few

legislative materials are available. Some are ambiguous

and, as the parties before us have demonstrated, an in-

genious and intelligent mind may find support in all of

them for either interpretation. After our review, how-

ever, we conclude that on balance they show that Con-

gress 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 Apri! 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.19 There he

10. The passage reads in its entirety:

Objection: The sex antidiscrimination provisions of

the bill duplicate the coverage of the Equal Pay Act

20a

Appendiz A.

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 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-

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 re-

spect to equal work on jobs requiring equal skills

in the same establishments, and thus, cut across dif-

ferent jobs.

Answer: The Equal Pay Act is a part of the wage

hour law, with different coverage and with numer-

our exemptions unlike Title VII. Furthermore, under

Title VII, jobs can no longer be classified as to sex,

except where there is a rational basis for discrimi-

nation on the ground of bona fide occupational quali-

fication. The standards in the Equal Pay Act for

determining discrimination as to wages, of course,

ied applicable to the comparable situation under

Title :

110 Con. Rec. 7217 (1964).

21a

Appendix A.

ment to the Senate and it was subsequently approved.11

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

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 unlawful employment practice

under this title for any employer to differentiate

upon the basis of sex in determining the amount of

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

ployees 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 yearning by members of the fair sex in this

country, and after very careful study by the ap-

propriate committees of Congress, last year Con-

gress passed the so-called Equal Pay Act which be-

came effective only yesterday.

By this time, programs have been established for the

effective 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 conflict between the wholesale insertion

22a

Appendix A.

does is recognize those exceptions, that are carried in

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

ments is that the Amendment was merely intended to

carry forwerd the 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

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 amended satisfies the requirement of

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

of the ward “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 tech-

nical correction of the bill. If they will co 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. I believe it is needed. I thank

him for his thoughtfulness. The amended 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.

23a

Appendix A.

than the Equal Pay Act. JUEH 1,19 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

promotions, 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 unless it also

All that the pending amendment does is recognize

those exceptions, that are carried in the basic act.

Therefore, this amendment is necessary, in the in-

terest of clarification.

The PRESIDING OFFICER: (Mr. Ribicoff in the

chair). The > sossreny is on agreeing to the amend-

ment of the Senator from Utah. (Putting the ques-

tion. )

The amendment was agreed to.

110 Cong. Rec. 13647 (1964).

24a

Appendix A.

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

(1965) .12

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

12. His explanation in full is:

Relation of Title VII to the Equal Pay Act: An Ex-

planation 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 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 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) ).”

The amendment speaks in terms of a “differentia-

tion * * * authorized by the provisions of section

6(d) of the Fair Labor Standards Act.”

Section 6(d) authorizes two things:

1. Wage differentials on equal jobs 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.

The amendment therefore means that it is not an

» unlawful employment practice; (a) to differentiate

on the basis of sex in determining the compensation

of white collar and other employees who are exempt

under the provisions of the Fair Labor Standards

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

sation for nonexempt employees where such differ-

entiation is not prohibited by the equal pay amend-

ment to the Fair Labor Standards Act.

Simply stated, the amendment means that discrim-

ination in compensation on account of sex does not

violate Title VII unless it also violates the Equal

Pay Act.

111 Cong. Rec. 13359 (1965).

25a

Appendix A.

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.13 We cannot agree. The final statement is quite

explicit and it does support Westinghouse’s view. Never-

theless, we are not persuaded that this passage repre-

sents the intent of Congress at the time it passed the

Amendment. We note that it differs from Senator Ben-

nett’s earlier explanation, which was the explanation

relied on by the Congressmen who approved the Amend-

ment. 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 Circuit’s

interpretation of the significance of this passage. In

Gunther v. County of Washington, 22 FEP 1650, 1652

(9th Cir. 1980), aff’ing 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

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

26a

Appendix A.

standpoint or as a practical matter, Senator Ben-

nett’s statement cannot express what was on Con-

gress’ collective mind when it acted a year earlier.

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 en-

lightening.

The second item written after the Act was passed is

contained in a 1977 Senate Report on amendments to

Title VII.14 The Senate Committee states, “It is the com-

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., 1st Sess. at 7

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

Supreme Court decision interpreting section 703(h) ina

manner which the Senate committee thought was con-

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

14. The Report states in pertinent part:

The Supreme Court seemed to believe, despite ap-

parently contradictory Equal Pay Act regulations,

that the discrimination in question in Gilbert would

be authorized by the Equal Pay Act. See 29 C.F.R.

800.151. It is the committee’s opinion that this ap-

plication of the Bennett amendment which assumes

that that provision insulates from Title VII all com-

pensation and fringe benefit programs which do not

also violate the Equal Pay Act is not correct; by

expressly precluding reliance on section 703(h) in

this context, therefore, the committee merely in-

tends to insure that employers may not rely on the

Equal Pay Act to prevent the correction of preg-

nancy under Title VII.

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

27a

Appendix A.

tory is consistent with the committee’s later statement

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

the same difficulty with this passage that we have with

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

it was neither voted upon nor approved by the Congress

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

About the time of the passage of the Bennett

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

ments which would have limited the scope of Title VII,

and which would have had a much smaller potential im-

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

by the Senate.15 Between June 4 and June 17, when the

Civil Rights Act was approved by the Senate, twenty-

three amendments were rejected. Among them was an

amendment to permanently restrict Title VII’s coverage

to establishments with 100 or more employees (No.

606), 110 Cong. Rec. 13093 (1964); Senator Tower’s

original testing amendment (No. 605), id. at 13505; an

amendment requiring that Equal Employment Oppor-

tunity Commission (EEOC) employees identify them-

selves when serving as investigators (No. 963) ; id. at

13650; an amendment expressly permitting EEOC em-

15. On June 9, the Senate debated and rejected

Amendments 606 and 898. 110 Cong. Rec. 13085, 13093

(1964). On June 22, the Senate debated and rejected

Amendments 569 and 605. Id. at 13492, 13505. On June

12, the Senate debated and rejected Amendments 607

and 962. Id. at 13648-52. On June 13, the Senate debated

and rejected Amendment 963. Id. at 18650, 13696. On

June 15, the Senate debated and rejected Amendments

519 and 547. Id. at 13825-26 and 13838. On June 16, the

Senate debated and rejected Amendments 550, 846, 855,

and 1020. Id. at 13910 and 13943-46. On June 17, the

Senate debated and rejected Amendments 590, 847, 922,

1021, 1023 and 1024. Jd. at 14179, 14182-83, 14186-87,

14191-93, and 14196-97.

28a

Appendix A.

ployees to give congressional testimony (No. 922), id. at

14193, 14196; an amendment prohibiting the EEOC

from withholding any evidence, testimony or records

from any court or congressional committee (No. 550),

id. at 13910; and an amendment allowing the EEOC to

elect its own chairman and vice chairman, rather than

providing for their appointment by the President (No.

946), id. at 13945-56. We think that the congressional

opposition to these minor amendments suggests that the

Bennett Amendment was not intended to limit Title

VII’s coverage as Westinghouse urges for the Amend-

ment probably would have been more widely disputed

and discussed if that was the intent. Again, this evi-

dence is not decisive to our decision, but it supports the

plaintiffs’ interpretation.

In summary we conclude that the legislative history

shows that the Bennett Amendment merely incorpo-

rated the four exceptions of the Equal Pay Act into Title

VII without otherwise limiting Title VII’s coverage.

The third group of materials we have used to un-

ravel the meaning of the Bennett Amendment are the

regulations and rulings of the EEOC, the regulatory

body charged with enforcing the Civil Rights Act. The

EEOC’s regulations, issued in 1972, make it quite ex-

plicit that “the prohibitions 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 Section 703(h) to those employees covered

29a

Appendix A.

by the Fair Labor Standards Act’. 29 C.F.R. §1604.8

(1978) .16

The district court discounted these regulations be-

cause it felt that the regulations were inconsistent with

earlier EEOC regulations issued in 1965. It was the dis-

trict court’s view that the 1965 regulations stated that

the discriminatory wage scales were impermissible only

if the wage scales were also in violation of the Equal Pay

Act. 19 FEP Cases 454-56. The court held that earlier

regulations were controlling, relying on General Electric

v. Gilbert.17 In Gilbert the Supreme Court found that

the EEOC’s newer regulations covering pregnancy bene-

fits “flatly contradict[ed] the position which the agency

had enunciated at an earlier date, closer to the enact-

16. 29 C.F.R. §1604.8 (1978) provides in full.

Relationship of Title VII to the Equal Pay Act.

(a) The employee coverage of the prohibitions

against discrimination based on sex contained in

Title VII is coextensive with that of the other pro-

hibitions contained in Title VII and is not limited

by Section 703(h) to those employees covered by

the Fair Labor Standards Act.

(b) By virtue of Section 703(h), a defense based

on the Equal Pay Act may be raised in a proceed-

ing under Title VII.

sion will give appropriate consideration to the inter-

arson of the Administrator, Wage and Hour

ivision, Department of Labor, but will not be

bound thereby.

17. The 1965 regulations provided:

(a) Title VII requires that its provisions be har-

monized with the Equal Pay Act (section 6(d) of

the Fair Labor Standards Act of 1938, 29 U.S.C.

206(d)) in order to avoid conflicting interpreta-

tions or requirements with respect to situations to

30a

Appendix A.

ment of the governing statute.” 429 U.S. at 142. It held

that the newer regulations were therefore not entitled to

the deference normally afforded EEOC regulations. See

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

(“interpretation of the Act by the [EEOC] is entitled

to great deference.”’ )

The rule set forth in General Electric v. Gilbert is

not applicable to these regulations. The 1965 regulations

stated that “with respect to situations to which both

statutes are applicable ... the standards of the ‘equal pay

for equal work’ set forth in the Equal Pay Act” are ap-

plicable to Title VII. 30 Fed. Reg. 14928 (1965). They do

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 ap-

plicable to Title VII. However, it is the judgment

of the Commission that the employee coverage of

the prohibition against discrimination in compensa-

tion because of sex is co-extensive with that of the

other prohibitions in section 703, and is not limited

by section 703(h) to those employees covered by the

Fair Labor Standards Act.

(b) Accordingly, the Commission will make ap-

plicable to equal pay complaints filed under Title

VII the relevant interpretations of the Administra-

tor, Wage and Hour Division, Department of Labor.

These interpretations are found in 29 Code of Fed-

eral 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.

istrator before issuing an opinion on any matter

covered by both Title VII and the Equal Pay Act.

30 Fed. Reg. 14928 (1965).

31la

Appendix A.

not state that Title VII’s scope is no broader than the

Equal Pay Act. Indeed, the regulation specifically pro-

vides that “discrimination in compensation because of

sex is co-extensive with that of the other prohibition in

section 703, and is not limited by section 703(h) to those

employees covered by the Fair Labor Standards Act.” Id.

Second, and most important, the EEOC, in a number of

cases decided before the 1972 guidelines were issued,

found Title VII applicable to situations where the wage

rates for jobs held predominantly by women were set

lower than the wage rates for jobs held predominantly

by men. In these cases the wage rates were lower be-

cause the jobs were held predominantly by women and

not because of the job requirements. See, e.g., Decision

No. 70-112, 1973 EEOC Decisions (CCH) {6108 (Sept.

5, 1969); Decision No. 70-695, 1973 EEOC Decisions

(CCH) 6148 (April 13, 1970). The EEOC’s position

has been generally consistent and thus the traditional

deference which courts give to agency regulations is to

be given in this case. See United States v. National

Association of Securities Dealers, Inc., 422 U.S. 694, 719

(1975) (courts will give “considerable weight” to a

“consistent and longstanding interpretation by the

agency charged with administration of that statute).

Thus, we find that the EEOC regulations also support

the plaintiffs construction.

The caselaw, for the most part, adds little to our in-

quiry. The Supreme Court’s references to the Equal Pay

Act in the context of Title VII are inconclusive and only

one decision by a Court of Appeals has squarely faced

the issue raised in this appeal. In that case, Gunther v.

County of Washington, the Ninth Circuit held that Title

32a

Appendix A.

VII was violated when wages for females were intention-

ally set, on the basis of sex, lower than wages for men

who held different jobs. We find the Gunther decision to

be persuasive and note that that court’s interpretation

of the Bennett Amendment’s legislative history is con-

sistent with our own.18 The Tenth Circuit in a different

factual setting held in Lemons v. Denver, 22 FEP Cases

959 (10th Cir. 1980), that Title VII did not prevent sex

discrimination in wages for comparable jobs. We note

that Lemons is distinguishable because the lower court

found that the city had not set the wages for women

lower than the wages for men on account of their sex.

“The City draws no distinction between male and fe-

male employees.’”” 22 TEP Cases at 960 (quoting the

district court’s findings). The other cases in both the

Courts of Appeals, including this circuit, and the dis-

trict courts are not helpful because the issue raised by

18. Although it is not important to our decision,

the facts of Gunther demonstrate the difficulty with

Westinghouse’s interpretation. The plaintiffs were fe-

male matrons and prison guards who asserted that they

were paid lower wages than the male prison guards on

account of their sex. Earlier in Dothard v. Rawlinson,

433 U.S. 321 (1977), the Supreme Court had held that

sex was a bona fide occupational qualification for the

armor of a prison gu and therefore women could

awfully, under certain circumstances, be excluded from

the positions held by men. Had the Ninth Circuit found

that Title VII permitted the alleged wage discrimina-

tion, the women may have been left without redress.

They could neither sue for higher wages, nor could they

try to transfer to the higher paying jobs to escape the

alleged discrimination practices of the city.

33a

Appendix A.

this case was not decided and thus only address this

issue in dicta.19

IV.

With the Civil Rights Act of 1964, Congress re-

leased a strong and forceful weapon against employ-

ment discrimination. To paraphrase the Supreme Court’s

words: “It would be ironic indeed if [the Equal Pay

Act,] a law triggered by a Nation’s concern over cen-

turies of [sexual discrimination] and intended to im-

prove the lot of those who had ‘been excluded from the

American dream for so long’”’ were to lead to the con-

traction of their rights under Title VII. United Steel-

workers of America v. Weber, 443 U.S. 193, 204 (1979),

quoting Senator Humphrey, 110 Cong. Rec. 6552 (1964).

Nothing we have found suggests that this act was to be

weakened so as to “authorize” the explicit discrimina-

tion in compensation the plaintiffs assert that Westing-

19. In some of the cases the courts did not reach

the issue, but in dicta viewed the Bennett Amendment

as being limited to the four exceptions. #.g., Manhart v.

City of Los Angeles Dept. of Power & Water, 553 F.2d

581, 587-88, (9th Cir. 1976), aff'd and rev’d on other

grounds, 435 U.S. 702 (1978); Fitzgerald v. Sirloin

Stockade, Inc., 22 FEP Cases 262, 267 (10th Cir. 1980) ;

EEOC v. Aetna Insurance Co., 22 FEP Cases 607, 611

n. 5 (4th Cir. 1980) (Equal Pay Act claim only) ; Laffey

v. Northwest Airlines, Inc., 567 F.2d 429, 446 (D.C. Cir.

1976), cert. denied, 434 U.S. 1086 (1978). In other cases,

the courts stated in dicta that Title VII is limited to

equal work challenges. E.g., DiSalvo v. Chamber of Com-

merce of Greater Kansas City, 568 F.2d 593, 596 (8th

Cir. 1978); and Orr v. Frank R. MacNeil & Son, Inc.

S11 F.2d 166, 171 (5th Cir. 1975) ; cert. denied, 423 U.S.

865 (1975). As we have noted, the issue has generally

not been directly confronted for adjudication on a record

similar to the present one. A variety of reasons may

34a

Appendix A.

house has practiced. Moreover, we believe that the evi-

dence sugge..s otherwise.

Accordingly, we will reverse the judgment of the

district court and will remand for further proceed-

ings.20

VAN DUSEN, Circuit Judge, dissenting.

I respectfully dissent. The majority opinion de-

scribes a case in which sex-based wage discrimination

and liability under §703(a) (1) of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. §2000e-2(a) (1) (1976),

will be established by evidence that an express policy of

sex-based wage discrimination exists at Westinghouse’s

Trenton facility.1 If I understand the case to involve

explain this. In some instances, the claimant met the

equal work claim and there would have been no need

to decide any other approach. EF.g., Schultz v. Wheaton

Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398

U.S. 905 (1970) ; and Roesel v. Joliet Wrought Washer

Co., 596 F.2d 183, 184-86 (7th Cir. 1979); DiSalvo, 568

F.2d at 596-97; and Laffey, 567 F.2d at 445. In some

cases the plaintiff failed to meet the equal work standard

and the facts suggest the plaintiff would not have been

able to establish facts similar to the facts of this case.

E.g., Keyes v. Lenoir Rhyne College, 552 F.2d 579 (4th

Cir.), cert. denied, 434 U.S. 904 (1977); Calage v. Uni-

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

Finally, in some of the cases the plaintiffs never sought

to challenge the equal work standard. £.g., DiSalvo;

Calage; Manhart.

20. We make no judgment as to whether, on the

merits, the plaintiffs will be able to sustain their burden

of proof. We rule merely that they must be given the

opportunity to present the case to a fact-finder to evalu-

ate their evidence.

1. The majority’s also describing plain-

tiffs’ claim as a §703(a) (2), § 2(a) (2), “classifi-

cation” case is inaccurate. The plaintiff’s complaint in-

35a

Appendix A.

only this issue, I would join in the court’s order.2 How-

ever, I understand the Union to be asking this court to

adopt the position that a plaintiff can prove a claim

under Title VII on a sex-based wage discrimination

theory through comparisons of the worth of comparable

work; that is, through comparisons of the value of dif-

ferent jobs to the wages paid for performing those jobs.

cludes five counts. Each count alleges a §703(a) (1),

§2000e-2 (a) (1), compensation violation. A §703 (a) (2)

classification violation is nowhere mentioned in the

plaintiffs’ papers (8a-33a).

2. The majority’s belief that Title VII must be

read more broadly than the Equal Pay Act in order that

certain sex-based wage discrimination not go unreme-

died is open to question. The Equal Pay Act states:

“No employer . . . shall discriminate between em-

ployees on the basis of sex by paying wages to em-

ployees in such establishment at a rate less than

the rate at which he pays sey to employees of

the opposite sex in such establishment for equal

work on Dae the performance of which requires

equal skill, effort, and responsibility, and which are

performed under similar working conditions, .. .”

The majority implies that an gps pe bys who explicitly

states that he is paying a group of his female employees

less than he would if they were males, is not liable under

the Equal Pay Act so long as no male employees per-

forming substantially equivalent work exist. I believe

that the Equal Pay Act does prohibit such sex-based

wage discrimination. It is not ey the that every

Equal Pay Act violation be established ough proof

that members of the opposite sex are currently perform-

ing equal work for ater pay. Although the typical

Equal Pay case involves a claim that inen and women

are working contemporaneously at the same job for

disparate compensation, the courts have also found

Equal Pay violations by looking to the wages paid the

Fredecessors or successors of plaintiffs. Bourque v.

36a

Appendiz A.

Since I believe Congress adopted the Bennett Amend-

ment, which is included in §703(h) of Title VII, 42

US.C. §2000e-2(h), to prevent plaintiffs from proving

sex-based wage discrimination claims under Title VI

with evidence of the worth of comparable work, I dis-

sent.

Powell Electrical Manufacturing Co., 23 E.P.D. 130,891

(No, 1247, 5th Cir., May 5, 1980) (violation of Equal

Pay Act and Title VII established by comparison with

wage of predecessor and statements of intent to en-

gage in sex-based wage discrimination), and DiSalvo v.

Chamber of Commerce, 568 F.2d 593 (8th Cir. 1978)

(violation of Equal Pay Act and Title VII established by

comparison with wage of successor). I interpret an em-

ployer’s statement, “if my female employees were males,

I would pay them more,” as an admission that men per-

forming equal work, with the same qualifications, in

the same working conditions, would be paid more than

the current female employees. This situation is covered

by the Equal Pay Act. The hypothetical males referred

to by the employer suffice as the better paid employees

of the opposite sex required by the statute. To require

the female employees to wait until better paid male suc-

cessors are in fact hired by the employer before bring-

ing a claim would be manifestly unjust. I am confident

that Congress did not intend such overt discrimination

to go unremedied by the Equal Pay Act. I believe that

the majority’s reliance on the inability of the Equal Pay

Act to accommodate this situation is unjustifi

The only case which I have found addressing this

question is Rinkel v. Assoc. ie tie Contractors, 17

F.E.P. cases 224, 226 (D. Alaska 1978). The district

court in Rinkel concluded that in order to establish lia-

bility under the Equal Pay Act it was necessary that a

member of the opposite sex actually perform equal

work, despite explicit statements of intent to discrimi-

nate in wages on the basis of sex by the employer. I do

not believe the court adequately considered the policies

of the Equal Pay Act in reaching this conclusion and

was in error.

Appendiaz A.

As I understand the record in this case, the Union’s

case can only be proved through evidence of the worth

of comparable work. The Union’s sole evidence of an ex-

press policy of discrimination at the Trenton facility is

a statement from 1939. Although the Union acknowl-

edges that there have been changes in the content of the

various jobs and adjustments to the pay scales over the

last 40 years,3 they argue that, with comparable work

evidence, they can prove that the 1939 policy has been

perpetuated. They state that “[j]ob comparisons would

play only a limited role in plaintiff’s proof—establishing

that discriminatory wage reductions for women first in-

stituted by Westinghguse some forty years ago have not

been eliminated with the passage of time, and that the

present system stili embodies intentional discrimina-

tion.”4 Although the Union downplays the importance

of the comparable work evidence, it is the sole evidence

available to them to demonstrate that the discrimination

has continued. Thus, the evidence of comparable work

will be the central focus of the Union’s case.5

3. Brief for appellants at 10.

4. Appellants’ Reply Brief at 6.

5. The Union explained its proposed method of

agg and the importance of comparable work evidence

response to the defendant’s interrogatories, as fol-

lows:

“The low rates for all female jobs—including

the few classified above Labor Grade 3—are not

justified by the nature and content of the jobs, but

are solely the result of sex discrimination. Plaintiffs

will establish this fact by expert testimony after

further discovery and investigation, and it is not

possible to describe at this point the comparisons

which plaintiffs will make at trial between various

Appendix A.

Accordingly, the question presented by this case is

whether a sex-based wage discrimination claim can be

made out under Title VII on the basis of evidence of

jobs. However, examples of job comparisons which

plaintiffs would make on the basis of their present

knowledge are contained in the answers to Inter-

rogatories Nos. 11-16.”

(69a, emphasis added. )

An example of the job comparisons to be made is set out

in answer to Interrogatory No. 12.

“[Ojn the basis of their present know ledge, plain-

tiffs would compare the Mount Machine Operator

and the Janitor jobs in the following terms relevant

to their claim that the job of Mount Machine Opera-

tor is discriminatorily underpaid:

“A Mount Machine Operator must work at a

fast pace feeding flares, coils, wires and exhaus?

tubing into her machine. This demands great skill

and dexterity, especially the coil feeding. The op-

erator must be able to work from a schedule sheet,

must notify other personnel of type changes and

the anticipated time of changeovers, must keep pro-

duction records, must analyze and record shrink-

age, and must take note of irregularities in the

machine’s operation and in the materials she re-

ceives. The operator must clear jams and remove

defective parts with tweezers, relight fires, and do

other such maintenance functions. The job entails

several other duties: traying the finished mounts,

stamping and counting flimsies, cleaning machine

parts, pushing bulb hampers to the sealex position,

dumping glass particles into a cullet box and push-

ing the box to the aisle and stocking it for the cullet

collector to empty, repairing defective mounts, de-

livering trayed mounts to the sealex position, ob-

taining materials, sweeping the work area, etc.

Much of this work is heavy; for example, the lifting

of heavy boxes of flares and tubes, and the moving

of even heavier cullet boxes and bulb hampers. The

work is constant, and involves tension and pressure,

39a

Appendix A.

comparable work. Because I believe the Bennett Amend-

ment attempts to incorporate into Title VII the Equal

Pay Act’s rejection of the comparable work approach,

I conclude the answer to the question is no.é

since the operator must keep up with the machine

and the plant’s production depends on the opera-

tor’s ability to keep the machine fed and running,

and to identify problems in the operation of the

machine as well as defects in the materials which

go po the machine and the mounts which come

out of it.

“In contrast, the Janitor job involves virtually

no skill. Moreover, the janitors can work at a lei-

surely pace, and often have no duties to perform

for substantial periods of time. And of course, the

performance of the janitors does not have a direct

effect on production, unlike the Mount Machine job.

Furthermore, for the most part the janitor’s work

is very light. Janitors have seldom been required

to sweep the factory areas (except the warehouse

janitor), because this work is done by the opera-

tors in the areas. Thus the sweeping done by jani-

tors is generally confined to offices, wash rooms,

stairways, cafeteria, etc. The cleaning done by the

janitors is of a light nature, requiring little exer-

tion. The same is true of the janitors’ duties with

respect to emptying cigarette containers, waste-

paper baskets, etc. And equipment such as powered

sweepers and automatic hand tracks minimize the

effort required in the few areas where the work

might otherwise be heavy.”

(75a-77a)

6. Even if the majority’s perception of this case,

that it raises only the question of whether sex-based

wage discrimination can be prov-d by way of statements

of intentional wage discrimination in the absence of an

equal work violation, is correct, the majority’s analysis

will permit sex-based wage discrimination claims to be

brought solely on the basis of evidence of comparable

work. By interpreting the Bennett Amendment to refer

Appendiz A.

Il.

- The proper analysis of the question begins with an

understanding of Congress’ position on comparable work

in the Equal Pay Act. It is clear from the legislative

history of the 1963 Equal Pay Act amendment to the

Fair Labor Standards Act of 1938, 29 U.S.C. §206(d),

that Congress rejected the comparable work doctrine at

that time. Angelo v. Bacharach Instrument Co., 555 F.2d

1164, 1173-76 (3d Cir. 1977). Congress did not want and

“did not authorize the Secretary [of Labor] or the

Courts to engage in wholesale reevaluation of any em-

ployer’s pay structure in order to enforce their own con-

ceptions of economic worth.” Brennan v. Prince William

Hospital Corp., 503 F.2d 282, 285 (4th Cir. 1974), cert.

denied, 420 U.S. 972 (1975). Congress rejected the doc-

trine at least in part due to the difficulty of ascertaining

the worth of comparable work and the difficulty of

ascertaining the impact on wages of the supply and de-

mand for labor.7 The determination of proper wages

when equal work did not exist was deemed better left to

the market place than to a judicial fact finder.

only to the four exceptions in the Equal Pay Act and by

holding that Title VII need not be read in pari materia

with the Equal Pay Act, the majority has necessaril

decided that Title VII’s prohibition against sex discrimi-

nation in wages is not limited by the Equal Pay Act’s

equal work requirement. Accordingly, we must confront

the comparable work issue in this case.

7. The difficulty of ascertaining the a wage

for a job by comparing it to the wage paid for dissimilar

work has been well documented. See Christensen v.

Towa, 563 F.2d 353, 356 (8th Cir. 1977), and Lindsay,

Equal Pay for Comparabie Work: An Economic Analy-

sis of a New Antidiscrimination Doctrine (1980), pu

lished by the Law and Economics Center of the Univer-

sity of Miami.

4la

Appendix A.

One year later the same Congress passed the Civil

Rights Act of 1964, a broad anti-discrimination statute

prohibiting, inter alia, sex discrimination in employ-

ment. It is a general principal of statutory construction

that legislation addressing the same issue be interpreted

in pari materia if possible. The Supreme Court has held

that under this canon, “a statute dealing with a narrow,

precise, and specific subject is not submerged by a later

enacted statute covering a more generalized spectrum.

‘Where there is no clear intention otherwise, a specific

statute will not be controlled or nullified by a general

one, regardless of the priority of enactment.’” Radza-

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

quoting Morton v. Mancari, 417 U.S. 535, 550-51 (1974).

The canon has elsewhere been defined to mean that:

“In terms of legislative intent, it is assumed

that whenever the legislature enacts a ~ rovision it

has in mind previous statutes relating to the same

subject matter, wherefore it is held that in the ab-

sence of any express repeal or amendment therein,

the new provision was enacted in accord with the

legislative policy embodied in those prior statutes,

and they all should be construed together.”

2A C. Sands, Sutherland Statutory Construction §51.02

(4th ed. 1973) (footnotes omitted).

In my opinion, the Equal Pay Act and Title VII

should be construed in pari materia. They both deal

with the same subject matter, sex-based wage discrimi-

nation. The Equal Pay Act deals solely with sex-based

wage discrimination and was enacted after extensive

legislative investigation of the issue. Title VII, by con-

trast, is general anti-discrimination legislation and was

passed without investigation of the specific problem of

42a

Appendix A.

sex-based wage discrimination. In Title VII there is no

express repeal of the equal work requirement of the

Equal Pay Act. Rather, the legislative history of Title

VII shows an actual intent by the floor leaders of the

legislation to avoid conflicts between the two statutes.

In fact, Title VII expressly refers to the Equal Pay Act

and attempts to harmonize the two statutes through the

Bennett Amendment.

Further support for construing the statutes in pari

materia is found in the EEOC’s contemporaneous agen-

cy regulation, 29 C.F.R. §1604.7 (a) (1965). It expressly

stated that “Title VII requires that its provisions be

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 require-

ments with respect to situations to which both statutes

are applicable.” The current EEOC regulations also in-

clude a provision expressly addressing the relationship

between Title VII and the Equal Pay Act, 29 C.F.R.

§1604.8 (1978). Moreover, every court of appeals which

has addressed the question of the applicability of the

in pari materia canon to the interpretation of these stat-

utes, including a prior decision of the Third Circuit, has

held that the canon does apply. Schultz v. Wheaton

Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398

U.S. 905 (1970) ; DiSalvo v. Chamber of Commerce, 568

F.2d 593, 596 (8th Cir. 1978) ; Laffey v. Northwest Air-

lines, Inc., 567 F.2d 429, 446 (D.C.Cir. 1976) ; and Orr v.

MacNeill & Sons, Inc., 511 F.2d 166, 170 (5th Cir.), cert.

denied, 423 U.S. 865 (1975). All of these factors lead me

to conclude that the canon is applicable to the issue in

this case and requires us to interpret Title VII in a fash-

ion consistent with the Equal Pay Act’s rejection of the

comparable work doctrine.

43a

Appendix A.

It is from this foundation that I begin my analysis

of the Bennett Amendment. The Bennett Amendment

provides as follows:

“It shall not be an unlawful employment practice

under this title for any employer to differentiate

upon the basis of sex in determining the amount of

wages or compensation paid or to be paid employees

of such employer, if such differentiation is author-

ized by the provisions of [the Equal Pay Act] Sec-

tion 6(d) of the Fair Labor Standards Act of 1938,

as amended (29 U.S.C. 206(d) ).

This provision was added in response to Congressman

Smith’s amendment, which included sex in the classifica-

tions protected under $703(a) (1) of Title VII, 42 U.S.C.

§2000e-2 (a) (1), from employment discrimination.

As the majority discusses extensively, the dispute

in interpreting the Bennett Amendment concerns the

meaning of the word “authorized” in the phrase “author-

ized by the provisions of Section 6(d) of the Fair Labor

Standards Act of 1938.” The majority notes that the

word “authorized” is open to two interpretations. It may

refer to the four exceptions expressed in the Equal Pay

Act, as the majority concludes, or it may limit the pro-

hibition against sex-based wage discrimination to situa-

tions where the Equal Pay Act is also violated, thus pre-

venting the use of comparable work evidence. A review

of the aids to interpretation leads me to the latter

conclusion.

Statutory construction begins with an analysis of

the language of the statute. Lewis v. United States, 48

U.S.L.W. 4205, 4207 (S.Ct. Feb. 27, 1980). The word

“authorized” normally describes something that is af-

44a

Appendiz A.

firmatively endorsed. However, as Westinghouse argues,

an alternative definition is “to permit a thing to be done

in the future.”8 I do not believe the common meaning of

the word is so clear as to reveal conclusively the correct

interpretation of the statute.

Moreover, the majority’s definition of “authorized”

renders the Bennett Amendment largely redundant, a

construction which is to be avoided. F.A.A. v. Robert-

son, 422 U.S. 255, 261 (1975). Section 703(h) of Title

VII, §2000e-2(h), contains two sentences. The Bennett

Amendment is the second sentence. The first sentence

explicitly provides that “it shall not be an unlawful em-

ployment practice for an employer to apply different

standards of compensation . . . pursuant to a bona fide

seniority or merit system or a system which measures

earning by quantity or quality of production... .”” None-

theless, the majority views the Bennett Amendment as

solely incorporating the following provision under the

Equal Pay Act: “[n]Jo employer .. . shall discriminate

... [on the basis of wages] . . . except where such pay-

ment 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 dif-

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

In light of the first sentence of §703(h), the majority’s

interpretation makes the Bennett Amendment surplus-

age. Based on these factors, I believe the statutory lan-

guage itself is inconclusive.

The second aid to interpretation is the legislative

history. Two days after Congressman Smith’s amend-

8. Black’s Law Dictionary (4th ed. 1968) at 169.

45a

Appendiz A.

ment to Title VII including sex as a protected classifica-

tion was adopted, the bill passed the House. The bill by-

passed the Senate committee system and was presented

to the full Senate for initial consideration. The first dis-

cussion of the issue of discrimination in compensation

based on sex was presented on April 4, 1964, by Senator

Clark, one of the bill’s floor managers, in response to

questions raised by Senator Dirksen. Senator Clark

posed the following question and answer:

“Objection: The sex antidiscrimination provisions

of the bill duplicate the coverage of the Equal Pay

Act of 1963. But more than this, they extend far be-

yond the scope and coverage of the Equal Pay Act.

They do not include the limitations in that act with

respect to equal work on jobs requiring equal skills

in the same establishments, and thus, cut across

different jobs.

“Answer: The Equal Pay Act is a part of the wage

hour law, with different coverage and with numer-

ous exemptions unlike title VII. Furthermore, un-

der title VII, jobs can no longer be classified as to

sex, except where there is a rational basis for dis-

crimination on the ground of bona fide occupational

qualification. The standards in the Equal Pay Act

for determining discrimination as to wages, of

course, are applicable to the comparable situation

under title VII.

110 Cong. Rec. 7217 (1964) (emphasis added). As I read

the emphasized portions of the question and answer,

they demonstrate an intent to preserve the Equal Pay

Act’s requirement that proof of equal work be a pre-

requisite to a sex-based wage discrimination claim under

Title VIL.

Appendix A.

Subsequently, on June 12, 1964, the Bennett Amend-

ment was introduced in the Senate. The colloquy at the

time of introduction and adoption is somewhat ambigu-

ous.® Senator Bennett summarized the import of his

amendment by saying:

“Now, when the civil rights bill is under considera-

tion, in which the word ‘sex’ has been inserted in

many places, I do not believe sufficient attention

may have been paid to possible 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.”

110 Cong. Rec. 13647 (1964). This statement is open to

different interpretations because Senator Bennett did

not specify the provisions of the Equal Pay Act to which

he was referring. I believe, however, the most logical

interpretation of the statement is that Senator Bennett

was referring to the equal work provisions of the Equal

Pay Act.10

9. The text of the colloquy at the time of intro-

duction and adoption is set forth at note 11 of the ma-

jority opinion.

10. Senator Dirksen’s statement, which is relied on

by the majority, is also ambiguous. Senator Dirksen

said, “all that the ae amendment does is recognize

those exceptions, that are carried in the basic act.” It

is unclear what “the basic act” refers to. Moreover, it

was Senator Dirksen who first raised the objection, an-

swered by Senator Clark, that Title VII would reject

the equal work requirement. These facts leave the ma-

jority’s interpretation open to question.

47a

Appendiz A.

The Senate’s amendment was then sent to the House

for approval. In the House Congressman Celler, floor

leader of the bill, explained that the Bennett Amend-

ment “provides that compliance 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 the majority

notes, this statement also is open to varying interpreta-

tions. Again, I believe that the most logical interpre-

tation of this remark is that complying with the Equal

Pay Act would preclude liability under Title VII for

all sex-based wage discrimination claims. The House

adopted the provision and the bill was eventually en-

acted into law.

One year later, in 1965, Senator Bennett submitted

a memorandum to be published in the Congressional

Record clarifying the meaning of his amendment. The

final words of the memorandum are that “[s]imply

stated, the amendment means that discrimination in

compensation on account of sex does not violate Title

VI unless it also violates the Equal Pay Act.” 111 Cong.

Rec. 13359 (1965).11 As the majority notes, this state-

ment explicitly supports Westinghouse’s view. Although

I am aware of the danger of relying on legislative his-

tory which is presented after passage of a law, the

Supreme Court cases do not dismiss such history as

irrelevant. Haynes v. United States, 390 U.S. 85, 87 n.4

(1968) ; Galvan v. Press, 347 U.S. 522, 536-27 (1954);

and Sioux Tribe v. United States, 316 U.S. 317, 329-30

(1942). When the author of a piece of legislation, a

short time after its passage, makes a clarifying state-

11. The full text of the statement is set out in the

majority opinion at note 12 at p. 21.

48a

Appendix A.

ment which is not inconsistent with the prior, ambigu-

ous legislative history, I believe the statement should

be given weight.12 In this case it lends support to

Westinghouse’s interpretation. In sum, when considered

in full, I believe the legislative history supports Westing-

house’s view.

The third aid to interpretation is the administrative

interpretation of the statute by the Equal Employment

Opportunity Commission (EEOC), the regulatory body

charged with enforcing the Civil Rights Act. The situa-

tion before us parallels that presented to the Supreme

Court in General Electric Co. v. Gilbert, 429 U.S. 125,

142 (1976). In Gilbert the Supreme Court discounted

the weight to be given EEOC’s 1972 Title VII regula-

tions addressing pregnancy benefits, because they were

inconsistent with EEOC’s 1965 regulations on the issue.

In this case the EEOC also amended its regulations ir.

1972. At that time the EEOC omitted the express re-

quirement of proof of equal work articulated in the 1965

regulation concerning the Bennett Amendment.:3 The

current regulation is silent concerning the equal pay re-

quirement, and thus sheds little light on the issue pre-

12. International Brotherhood of Teamsters v.

Unitec States, 431 U.S. 324, 354 n. 39 (1977), is not to

the contrary. It states iu pertinent part:

“The views of members of a later Congress, con-

cerning different sections of Title VII, enacted after

this litigation was commenced, are entitled to little

if any ht. It is the intent of the Congress that

enacted §703(h) in 1964, unmistakable in this case,

that controls.”

13. The full text of the two regulations is set forth

in the majority opinion at notes 16 and 17 at p. 26.

49a

Appendix A.

sented by this case.14 Despite this, recent EEOC rulings

and the amicus brief field in this court demonstrate that

the EEOC currently supports the Union’s position that

the Bennett Amendment does not incorporate the equal

work requirement into Title VII. The prior regulation,

however, clearly supported Westinghouse’s position. The

1965 regulation stated in part that, “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.” 29 C.F.R.

§1604.7(a) (1965). This regulation shows that in 1965

the EEOC believed that the Bennett Amendment incor-

porated the equal work requirement into Titie VII. Al-

though the recent rulings may stand as some authority

for the Union’s position, in light of Gilbert, at 143, I be-

lieve their weight is substantially reduced, and that this

1965 regu'ation should be considered.

The case law is the last aid to interpretation. It has

_ been:reviewed extensively by both the majority and the

district court, International Union of Electrical Workers

v. Westinghouse Electric Co., 19 F.E.P. Cases 450

(D.N.J. 1979). Their reviews demonstrate that there is

a conflict between the circuits on the issue currently in

14. The majority reads 29 C.F.R. §1604. 8(a)

(1978) as eliminating the equal work uirement. I

understand this subsection to address solely the ques-

tion of which employees are covered under Title and

the Equal Pay Act. Title VII protects some workers not

protected by the Equal Pay Act. Section 1604.8(a)

merely says that the Bennett Amendment does not serve

to limit the coverage of Title VII to those employees

covered by the Equal Pay Act.

?-.

’%

50a

Appendiz A.

controversy. Until the decision in Gunther v. County of

Washington, 602 F.2d 882 (9th Cir. 1978), aff'd upon

petition for rehearing, No. 76-3448 (9th Cir., May 1,

1980), no court of appeals had held that a Title VII claim

of sex-based wage discrimination could be made out

without proof of equal work. The opposite position had —

uniformly been taken. Lemons v. Denver, 22 F.E.P.

Cases 959 (10th Cir. 1980); Orr v. MacNeill & Sons,

Inc., 511 F.2d 166, 171 (5th Cir.), cert. denied, 423 U.S.

865 (1975); Ammons v Zia Co., 448 F.2d 117, 120 (10th

Cir. 1971) (Aldisert, J., sitting by designation); and

Keyes v. Lenoir Rhyne College, 15 F.E.P. Cases 914

(W.D.N.C. 1976), aff’d, 552 F.2d 579 (4th Cir.), cert. de-

nied, 434 U.S. 904 (1977). Although the Gunther opin-

ion treats the problem in more detail than the other

cases, it fails to discuss the application of the in pari

materia canon of statutory construction to the issue.

This failure undermines the force of the Ninth Circuit’s

analysis. In light or this review, I consider the case law

another factor it. support of Westinghouse’s interpre-

tation.

In sum, I believe that when all the aids to interpre-

tation are considered and when the canon of in pari

materia is given proper weight, Westinghouse’s inter-

pretation of the Bennett Amendment must prevail.15

15. The majority holds that the in pari materia

canon is inapplicable to the case at bar. I believe this

view leads it to interpret the Bennett Amendment in-

correctly. However, even if the majority’s limited inter-

retation of the Bennett Amendment is correct, I be-

eve the in pari materia canon compels us to interpret

Title VII to include an equal work requirement in sex-

based 7 discrimination claims, since the Con

in Title did not expressly reject the equal work re-

quirement.

5la

Appendix A.

III.

In conclusion, I note that read together, Title VII

and the Equal Pay Act provide a balanced approach to

resolving sex-based wage discrimination claims. Title

VII guarantees that qualified female employees will have

access to all jobs, and the Equal Pay Act assures that

men and women performing the same work will be paid

equally. This approach provides a mechanism for elimi-

nating sex-based wage discrimination, while, at the

same time, assuring that the courts and federal agencies

will not become entangled in adjudicating the wage

rates to be paid for dissimilar jobs—a process in which

they have little expertise. The majority’s opinion rejects

this balanced approach and will allow claims based on

the valuation of comparable work. Although the major-

ity’s opinion is purportedly limited to cases involving

express statements of discrimination, its analysis is not

so limited. In order to find a sex-based wage discrimina-

tion cause of action under Title VII where one does not

exist under the Equal Pay Act, the majority has inter-

preted the Bennett Amendment to refer only to the four

exceptions in the Equal Pay Act and, by not following

the canon of in pari materia, has rejected the applica-

bility of the policies of the Equal Pay Act to Title VI.

Having disposed of both of these limitations on the

scope of Title VII, this court has no basis under which

to exclude evidence of the worth of comparable work in

a Title VII sex-based wage discrimination case.16 I do

not believe Congress intended to overrule the equal work

policy of the Equal Pay Act in adopting Title VII, and

16. As noted above in part I, I believe this is such

@ case.

52a

Appendiz A.

accordingly I dissent.17 I would affirm the district

court’s order.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17. My analysis of the limitation of Title VII in

the area of sex-based wage discrimination in no way

implies that I am unsympathetic to the employment

discrimination suffered by many women. ile I view

such discrimination as a deep-rooted social problem

which can and should be remedied, I think the change

must come from the legislature. My review of the 1

ae history convinces me that in passing the Civil

Rights Act of 1964 the 88th Congress did not intend to

ject em pst to liability on claims based on the

vatdation of comparable work. In light of the still great

disparities between the wages of men and women 16

years after the enactment of the Civil Rights Act, Con-

gress may now wish to pass {oebe rpsawcies sien | com-

parable work claims to be brought under Title

F +

Appendix B.

Appendix B

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

Nos. 79-1893 and 79-1894

INTERNATIONAL UNION OF ELECTRICAL, RADIO

AND MACHINE WORKERS, AFL-CIO-CLC, an

unincorporated association, INTERNATIONAL

UNION OF ELECTRICAL, RADIO AND MA-

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

an unincorporated association, INTERNATIONAL

UNION OF ELECTRICAL, RADIO AND MA-

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

an unincorporated association, H. J. ADAMS,

GENEVIEVE ARNETT, JOSEPHINE BAKER,

MARGE DINNAN BROPHY, HENRIETTA

BROWN, DOROTHY M. BURTON, MINNIE CHAT-

MAN, MARY E. COBB, A. CONTENTO, MELVINA

COOPER, JEAN CORBIN, NORMA DOYLE,

ELEANOR DYE, TANYA FOURSHEE, D. FOWL-

ER, DOROTHY GAINES, MARTHA GANT, MA-

DELINE GIESE, L. M. HARRIS, DOROTHY

HAYES, ELEANOR HUNKER, PAULINE LEE,

J. LINDENTHAL, OLLIE LITTLE, MADELINE

MARTINO, D. P. MASSI, RENA McLEOD, S. Mc-

NEIL, PATTI MITCHELL, ROBERTA MOORE,

MABEL MORRELL, MILDRED OCIKI, HELEN

O’LOUGHLIN, MARY PFISTER, ANN RAHO,

R. RAINEAR, P. RUTOWSKI, LORETTA RYAN,

J. L. SHELDON, V. VAUGHN, HELEN WALSH,

and SHIRLEY WATKINS, on behalf of themselves

and on behalf of all —— similarly situated,

WESTINGHOUSE ELECTRIC CORPORATION, a cor-

poration, International Union of Electrical, Radio

and Machine Workers, AFL-CIO-CLC ( “TUB” ) and

Locals 449 and 627,

Appellants in 79-1893

_—— hy, Henrietta Brown, Melvina Cooper, Ann

er and Helen Walsh, on behalf of them-

selves and the class they represent,

Appellants in 79-1894

Appendiz B.

Sur Petition for Rehearing

Present:

SEITZ, Chief Judge, VAN DUSEN, ALDISERT, ADAMS,

GIBBONS, HUNTER, GARTH, HIGGINBOTHAM AND SLOVITER,

Circuit Judges.

The petition for rehearing filed by WESTING-

HOUSE ELECTRIC CORPORATION in the above en-

titled case having been submitted to the judges who par-

ticipated in the decision of this court and to all the other

available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision hav-

ing asked for rehearing, and a majority of the circuit

judges of the circuit in regular active service not having

voted for rehearing by the court in banc, the petition

for rehearing is denied.

Judge Garth would grant the petition for rehearing.

BY THE COURT,

Circuit Judge

Dated: October 29, 1980

Appendix C.

Appendix C

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CrviL ACTION No. 75-1870

INTERNATIONAL UNION OF ELECTRICAL, RADIO AND Ma-

CHINE WORKERS, AFL-CIO,CLC, AN UNINCORPORATED

ASSOCIATION, ET AL., Plaintiffs,

Vv.

WESTINGHOUSE ELECTRIC 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. SosBo., Esquire

Sobol & Trister

910 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Plaintiff Unions

MICHAEL H. GOTTESMAN, Esquire

FRANK PETRAMALO, JR., Esquire

JEREMIAH A. COLLINS, Esquire

Bredhoff, Gottesman, Cohen & Weinberg

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

Attorneys for Individual Plaintiffs

SIDNEY REITMAN, Esquire

Ka hn, Lerner, Reitman & Maisel

24 Commerce Street

Newark, New Jersey 07102

Att for Plaintiff Unions and Individual

Plaintiffs ;

a |

Appendix C.

. ANDREW GOLDSTEIN, Esquire

VIRGINIA T. FENTON, Esquire

My may Bennett & Morrissey

744 | Street

Newark, New Jersey 07102

‘WALTER P. DEF OREST, 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. BACKGROUND

This is an action seeking relief for various alleged

sexually discriminatory practices and policies of the

defendant, Westinghouse Electric Corporation, herein-

after ‘Westinghouse’, at its Trenton, New Jersey plant,

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

§2000e, ef 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 numer-

ous Westinghouse facilities. Those counts involving de-

fendant’s New Jersey plants were severed and trans-

ferred to this Court.! Another count, involving nearly

1. The ot yg complaint in this action was Civil

Action No. 74-570, filed in the Western District of Penn-

sylvania on June 12, 1974. On October 28, 1975, Counts

-V of that complaint were severed and transferred to

eo District of New Jersey with the consent of all par-

57a

Appendix C.

identical allegations with respect to Westinghouse’s

Fairmont, West Virginia plant was transferred to the

Western District of West Virginia. The plaintiffs in the

present action are a certified class of past and present

female production, maintenance, and warehouse em-

ployees at Westinghouse’s Trenton plant, hereinafter

“individual plaintiffs”,2 the International Union of Elec-

trical, Radio and Machine Workers, hereinafter “TUE”,

and Local 449 of the IUE, hereinafter “Local”, the col-

lective 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 alter-

native, for partial summary judgment under Fed. R. Civ.

P. 56(d), directed at those portions of the complaint

which allege sex based discrimination in the payment

of wages.

Plaintiffs’ complaint alleges a pervasive scheme of

sex based discrimination at Westinghouse’s Trenton,

New Jersey plant, all in violation of §703(a) of Title VII,

42 U.S.C. §2000e-2(a).3 It alleges discriminatory prac-

2. This Court certified the named individual plain-

tiffs as representatives of a class of all past and present

female production, maintenance, and warehouse em-

ployees at the Trenton plant on December 13, 1977.

8. 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 compensa-

tion, terms, conditions, or privileges of employ-

ment, because of such individual’s race, color,

religion, sex, or national origin;

(2) to limit, segregate, or classify his em-

ployees, or ple cm for employment in any

58a

Appendiz C.

tices in compensation, job assignments, transfers and

promotions, tenure, job classifications and other terms.

and conditions of employment growing out of an official

company policy dating back to 1938. See Complaint {/21.

The motion presently before this Court, however, is far

narrower than the issues raised by the complaint. It

singles out for attack only plaintiffs’ 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 II of the complaint, relating

to Westinghouse’s Trenton plant, alleges that Westing-

house:

willfully and intentionally discriminated against the

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

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

ing [them] unequal pay in that male employees per-

forming the same or substantially the same work

receive higher pay; [and] (b) paying [them] 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. .

Complaint, Count II, 133.

Additionally, the plaintiffs charged that Westinghouse

violated section 703(a) by:

way which — de Fie or tend to deprive any

individual oyment opportunities or

otherwise loca affect his status as an em- °

ployee, because of oueh individual’s race, color,

religion, sex, or nati

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