# Petition — Westinghouse Electric Corporation v. International Union of Electrical, Radio & Machine Workers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0937%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 452 U.S. 967 ## Text 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 ee 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. 7% 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 iv 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 5 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). SS 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 10 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, “ 11 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- 12 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. 13 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. *% 14 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” ]. 15 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 16 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. 17 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 18 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. 19 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 -% 20 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 -% 21 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. 22 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. 23 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. 24 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). 25 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 26 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. 27 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). 28 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 29 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, v. WESTINGHOUSE ELECTRIC CORPORATION, a cor- poration \ 2a 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 4a 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. 6a 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- 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. E. 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. (c) Where such a defense is raised, the Commis- 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. (c) The Commission will consult with the Admin- istrator before issuing an opinion on any matter covered by both Title VII and the Equal Pay Act. 30 Fed. Reg. 14928 (1965). a 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. F. 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. I. 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. A. 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. B. 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. C. 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. D. 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. e% 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 + [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0937%3A1. Public record. Not legal advice.