Petition — City of Chicago v. National Organization for Women
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| ~y Qapreme Court, U.S,
vy FILED
no 0-958 DEG 9 1980
| wicnae RODAK, JR., CLERK
In THE .
Supreme Court of the Anited States
Ocroser TERM, 1980
CITY OF CHICAGO, a municipal corporation.
Petitioner,
vs.
NATIONAL ORGANIZATION FOR WOMEN,
SUSIE BATES, MATTIE SCOTT, ODESSA GATES,
ELEANOR PROTAS, and VERA SANFORD,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
STANLEY J. GARBER,
Corporation Counsel of the City of Chicago,
511 City Hall, Chicago, Illinois 60602,
(312) 744-6926,
Counsel for Petitroner.
DANIEL PASCALE,
Deputy Corporation Counsel,
Rosert R. RErTKE,
* Chief Assistant Corporation Counsel,
Of Counsel.
Midwest Law Printing Co., Chicago 60601, Financial 6-3988
i
QUESTIONS PRESENTED
The United States Court of Appeals has held that the
City of Chicago discriminated against two classes of
female employees, custodial assistants in the Depart-
ment of Public Works and clerical employees in the
Department of Water and Sewers. The questions
presented are:
1) Does the City’s Career Service System Which Is a
Bona Fide Merit Employment System, Objectively
Administered, Exempt it from Application of the
Equal Pay Act, 29 U.S.C. §206(d) and Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §2000e et
seq.
2) Is Mere Knowledge of the Disparate Impact of
Employment Decisions Upon a Protected Class
Sufficient to Prove Intent Under the Fourteenth
Amendment.
ili
TABLE OF CONTENTS
PAGE
RURPEEEPERODINGS FE SRMORSEAIN RMD csecssccccicencscsciersescconscecasossocese i
LIST OF AUTHORITIES CITED 0000. eeeeeeee iv
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STATUTES AND CONSTITUTIONAL PROVI-
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STATEMENT OF THE CASB 2.00... eeeeeeeseeeeees 3
REASONS FOR GRANTING THE WRIT:
1. When employment decisions are made pur-
suant to a bona fide merit employment system, dif-
ferences in wages which result are exempt from
the provisions of Title VII and the Equal Pay
TINIE: tas i cceechininjindinindaebideoenniaehiabdvhaalinstlajeibaataninientpilinnaesianectints 6
2. Mere knowledge of the disparate impact of
employment policies upon a protected class is not
sufficient to prove a claim under the Fourteenth
RINE. nciscesnsdniebschivbcpnsssiontgungiiiegeaamubnmaaanaaean 9
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SEIN, <invoaisssconcussisionsnieinipiidonsiivialanteittassdbigiiceniinbdsaniebeci 11
APPENDIX:
Opinion of the United States District Court for
the Northern District of Illinois, November 17,
TITIES csntnscioasisnteincmt less lteeiascheaihe sakiiuiataaabaiadaijaladacdaiace la
Opinion of the United States Court of Appeals
for the Seventh Cireuit, April 29, 1980 .............. 27a
Supplemental Opinion of the United States Court
of Appeals for the Seventh Circuit, September
SULTRY sinsinsscccessetninnatoniitivatensesncipssicepaduissodaambaneabaaaaitaa 46a
Constitutional Provisions and Statutes Involved .. 48a
PREVIOUS PAGE WAS BLANK |
iv
LIST OF AUTHORITIES CITED
Cases
Brennan v. Victoria Bank and Basis 493 F.2d 896
Cte Cit ISTE) iciiecnccesies — sqreteterenccnmmvmmiernanesnsteoonts 7
Equal Employment Opportunity Commission v. Aetna
Ins. Co., 616 F.2d 719 (4th Cir., 1980) ...............ccccsecessoee 7
International Brotherhood of Teamsters v. United
States, 431 U.S. 324, 52 L.Ed.2d 396, 97 S.Ct. 1843
FBT Ses radinccarsicnseqrentisetenbnittnoniacemmnticacentnensnensnonatsnatcisamennetion 8
Marshall v. Georgia Southwestern College, 489 F.
Supp. 1322 (M.D. Ga., 1980) ..............-.sc.cscscseseseseeesenserers 7
United States v. City of Chicago, 549 F.2d 415 (7th
i FTE) ics ssecssscresesncnchinctsecspesnonssancsessiensnnsententegiuiedacesantons 9
Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.
Be Oe TIE STD ainccis i cshittiersicneccesistiecinnsinnsnnnveditrtannnstiin 9, 11
Wisconsin National Organization for Women v. State
of Wisconsin, 417 F Supp. 978 (W.D. Wis., 1976) .... 7
Constitutional Provisions and Statutes
Fourteenth Amendment to the United States Consti-
acs caeaam bila diheesargmnoneacanaauainanene 2, 9,10, 11, 48a
SR TT BG STBIG ID Dc vcsciccccecsnciscesncoseissscncessorsncocsstorsetansnenpeasnie 2
BD TE Ac. ED tac cictesenisiicinctctesncenintnininsecteseinnvianin 2, 6, 48a
GD TT BA, SID waieniciccecitwetinsevecttnsvisboonssnvntpaasagabnameste 2, 11, 48a
42 U.B.C. $2000! Cb SOG .22.ccccecscvcrcccccceecccocsesscoscersasens 2,'6, 49a
In TE
Supreme Court of the Anited States
Ocroser Term, 1980
CITY OF CHICAGO, a municipal corporation.
Petitioner,
vs.
NATIONAL ORGANIZATION FOR WOMEN,
SUSIE BATES, MATTIE SCOTT, ODESSA GATES,
ELEANOR PROTAS, and VERA SANFORD,
Respondents.
PETITION FOR A WRIT OF CERTIULRARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
The petitioner, City of Chicago, respectfully prays that
a writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the
Seventh Circuit entered in this proceeding on April 29,
1980.
a me
OPINIONS BELOW
The opinion of the Court of Appeals, an unpublished
order, appears in the Appendix hereto. The opinion of
the District Court for the Northern District of Illinois,
not yet reported, appears in the Appendix hereto.
JURISDICTION
The judgment of the Court of Appeals for the Seventh
Circuit was entered on April 29, 1980. A timely petition
for rehearing en banc was denied on September 10, 1980
and this petition for certiorari was filed within 90 days
of that date. This Court’s jurisdiction is invoked under
28 U.S.C. §1254(1).
STATUTES AND CONSTITUTIONAL
PROVISIONS INVOLVED
The statutes and Constitutional provisions involved in
this petition are the Equal Pay Act, 29 U.S.C. §206(d);
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e et seq.; Section 1983 of the Civil Rights Act of
1871, 42 U.S.C. §1983; and the Fourteenth Amendment
to the United States Constitution. These laws are set
forth in full in the Appendix.
=
STATEMENT OF THE CASE
Prior to March of 1972, the Department of Public
Works of the City of Chicago employed janitors and
janitresses. As Title VII and the Equal Pay Act were
about to become applicable to state and _ local
governments, the City’s Department of Personnel
audited those two jobs to see what problems there might
be and how they might be remedied. After the job audit
was complete, the Department of Personnel made
several adjustments in its Civil Service (now Career Ser-
vice) System to bring those two jobs into conformity
with the intent of both Acts. First, the names of the two
jobs were changed to eliminate sexual connotation; then
both jobs were made available to male and female
employees. Lastly, new job-related tests were devised
and scheduled to be given. Males and females, including
those presently employed in both jobs, were encouraged
to take the test. Current employees were not, however,
penalized in any respect, since they all had civil service
status they were allowed to remain in their jobs. The
City’s intent was that all new hiring would be done in a
sex-blind manner and would eliminate any remnants of
sex-based job classifications at a natural rate.
Plaintiff Susie Bates had been employed as a janitress
with the Department of Public Works for many years.
Like all the other janitresses, she refused to take the test
for custodial worker which was the higher paying job.
Under the Civil Service Rules, she was therefore not
eligible to be reassigned to that job classification, but
was automatically grandfathered into the classification
of custodial assistant. The light work of the custodial
assistants was equivalent to her job duties as a janitress.
a ta
Prior to March of 1972, the Department of Water and
Sewers employed both males and females as clerical
workers. There were several classifications of clerks and
all those classes contained both males and females with
the exception of the yard clerk classification, which was
all male. Virtually all of the yard clerks were temporary
appointees who had formerly been laborers and were
members of the Laborers’ Union. In that capacity they
had gained valuable knowledge about the parts in
inventory and procedures used in repairing water pipes
which was useful to them in their job as yard clerks.
Plaintiffs never alleged or proved that they had applied
for and were denied the job of yard clerk or that they
were excluded from the Laborers’ Union.
Plaintiff Eleanor Protas was employed as a principal
clerk in the Water Distribution Division of the Depart-
ment of Water and Sewers. Two of Mrs. Protas’ co-
workers were male and were paid slightly more money
than she. One of the males was classified as a yard
clerk. Mrs. Protas made several attempts to raise her
salary by requesting that the Department of Personnel
audit her job and reclassify her job duties to a higher
rank in its Civil Service (now Career Service) System.
Mrs. Protas never sought the job of yard clerk but asked
to have her job duties reclassified to those of supervising
timekeeper and head clerk.
On November 24, 1974, plaintiff National Organiza-
tion for Women sued the City of Chicago charging dis-
crimination in hiring, promotional and compensation
practices. Susie Bates, custodial assistant and Eleanor
Protas, principal clerk, were named plaintiffs represent-
ing all custodial assistants in the Department of Public
Works and “whatever job classification Eleanor Protas
may hold in the Department of Water and Sewers.”
line
After a trial on the merits the District Court found
that the plaintiffs had proved a claim under Title VII,
Section 1983 and the Fourteenth Amendment (all plain-
tiffs), and the Equal Pay Act (named plairtiffs only).
The court then ordered hearings on class membership.
The members of classes were determined and the
District Court entered judgment for the plaintiffs
awarding them in excess of 3 million dollars on Nov-
ember 17, 1978. The City of Chicago appealed that
decision. The Seventh Circuit Court of Appeals in an
Unpublished Order entered April 29, 1980 affirmed the
decision in most respects but remanded that portion of
the case concerning the clerical workers for further
proceedings. After its Petition for Rehearing was
denied, the City instituted this Petition for Certiorari.
—~6—
REASONS FOR GRANTING THE WRIT
1
WHEN EMPLOYMENT DECISIONS ARE MADE
PURSUANT TO A BONA FIDE MERIT EMPLOY-
MENT SYSTEM, DIFFERENCES IN WAGES WHICH
RESULT ARE EXEMPT FROM THE PROVISIONS OF
TITLE VII AND THE EQUAL PAY ACT.
This Court has never interpreted the meaning of the
term “merit employment system” which provides one of
the four exceptions to the Equal Pay Act, 29 U.S.C.
§206(d) and to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e, et seg. But from the legislative
history and case law available, it is apparent that the
City of Chicago has a bona fide merit employment
system and therefore is exempted from application of
Title VII and the Equal Pay Act. Yet the Seventh Cir-
cuit Court of Appeals rejected the City’s defense stating:
When applied to the custodial class the argument
[regarding a merit employment system] might
possess a grain of plausibility except for the district
court fact findings that the jobs performed by male
and female custodians are substantially equal. The
merit system for hiring and promotion that the City
has shown might be a valid response to allegations
that women were denied equal opportunity to
qualify for different jobs with higher pay because of
their sex. The City might then exculpate itself by
showing that fewer women performed the higher
paying job because they performed less well on
neutral job-related tests. However, in the context of
a finding of unequal pay for equal work, the
statutory bona fide merit system serves to allow dis-
parate pay resulting from the application of objec-
tive standards that measure how well different
employees do the equal work. (Unpublished Order,
p. 5, Appendix, pp. 3la-32a)
oie
The Court of Appeals cited no authority for its holding
that a disparity in wages can only be exempted from the
Equal Pay Act and Title VII by a merit employment
system which measures how well different employees do
equal work. Indeed there is no such authority. Those
cases which have considered the merit system defense
have uniformly required only a showing that the system
“is administered, if not formally, at least system-
atically and objectively.” Hodgson v. Brookhaven
General Hospital, 436 F.2d 719, 726 (5th Cir., 1970)
See also: Brennan v. Victoria Bank and Trust, 493 F.2d
896 (5th Cir., 1974); Wisconsin National Organization
for Women v. State of Wisconsin, 417 F. Supp. 978 (W.D.
Wisc., 1976); Marshall v. Georgia Southwestern College,
489 F. Supp. 1822 (M.D. Ga., 1980).
The recent case of Equal Employment Opportunity
Commission v. Aetna Insurance Company, 616 F.2d 719
(4th Cir., 1980), deals specifically with the issue of the
merit system defense. The district court in the Aetna
case found that the Aetna Insurance Company’s dual
merit systems were the factor which resulted in the pay-
ment of a higher wage to a male than a female. In deter-
mining whether the finding of the trial court was clear-
ly erroneous the Fourth Circuit Court of Appeals dis-
cussed at length the legislative intent behind the merit
system exemption. The court then concluded:
A merit system, to be recognized as valid, need
not be in writing. [Cites omitted.] Notwithstanding
the absence of a writing requirement, a merit
“system” must be an organized and structured pro-
cedure whereby employees are evaluated systema-
tically according to predetermined criteria. [Cites
omitted.] Moreover, to be recognized, it would seem
that an unwritten merit system must fulfill two
additional requirements: the employees must be
—§—
aware of it; and it must not be based upon sex.
[Cites omitted. ]
The City presented ample evidence to support its con-
tention that its 42,000 employees are tested, hired,
classified, paid and promoted under a bona fide merit
employment system. The plaintiffs never attacked the
bona fides of the City’s Career Service (formerly Civil
Service) System. They contented themselves with the
circular argument that no system which resulted in
lower pay to females could be bona fide.
The Court of Appeals adopted this theory of the plain-
tiffs, despite the fact that this Court has rejected a
similar argument in the case of International
Brotherhood of Teamsters v. United States, 431 U.S. 324,
52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977), when it was
stated at 431 U.S. 354:
“An otherwise neutral legitimate seniority system
does not become unlawful under Title VII simply
because it may perpetuate pre-Act discrimination.”
The Court of Appeals attempted to distinguish
Teamsters by stating that in Teamsters, the invalidation
of the seniority system would destroy or dilute the
vested seniority rights of employees, whereas in this case
the male custodians had no such vested rights. The dis-
tinction is specious. The thrust of this Court’s opinion in
Teamsters is that a bona fide seniority system does not
become illegal because an employer formerly engaged in
discrimination and the neutral seniority system carries
the product of that discrimination forward in some
respects. The decision turns upon the logic that a
neutral seniority system, or in this case merit system,
which treats all equally, remains valid so long as it was
not constructed to perpetuate pre-Act discrimination.
==
A merit employment system, like a seniority system
provides a valid defense to allegations of discrimination.
The Seventh Circuit has ignored the clear and une-
quivocal language of the Equal Pay Act and Title VII.
This failure to properly apply the laws as enacted by
Congress justifies the grant of certiorari to review the
judgment below.
2.
MERE KNOWLEDGE OF THE DISPARATE IMPACT
OF EMPLOYMENT POLICIES UPON A PROTECTED
CLASS IS NOT SUFFICIENT TO PROVE INTENT UN-
DER THE FOURTEENTH AMENDMENT.
In Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040,
48 L. Ed. 2d 597 (1976), this Court held that when dis-
crimination is alleged under the Fourteenth Amend-
ment of the United States Constitution evidence of inten-
tion must be proved. 426 U.S. at 238-239; 96 &. Ct. at
2046-47, 48 L. Ed. 2d 606-607. The evidence necessary to
show intent to discriminate was discussed by the
Seventh Circuit in the case of United States v. City of
Chicago, 549 F.2d 415 (7th Cir., 1977) at 485, where the
court stated:
There is no evidence in tne record before us that the
Chicago Police Department engaged in purposeful
discrimination. The Department merely followed
the command of Illinois law in administering tests
which on their face were racially neutral. When the
district court stated that the City knowingly engag-
ed in racial discrimination, it may have been referr-
ing to the fact that the Department must have been
aware of the racially disproportionate impact of
those examinations. Under Washington, this is not
enough to show intent for purposes of the equal
protection clause. See 426 U.S. at 245-48, 96 S.Ct. at
2050. Accordingly, we hold that the hiring and
nh
promotion policies of the Chicago Police Depart-
ment did not violate the Constitution.
The Seventh Circuit contradicted its own holding in
the case at bar when it upheld the district court’s fin-
ding of intentional discrimination. In ruling upon the
issue of intent in this case the District Court stated:
[W]hat was done here by the City was done pur-
suant to a conscicus policy of treating men one way
and women another way. And while one might stop
short of saying that this implied ill will on the part
of the City or some evil intention on the part of the
City, nonetheless, the City knew what it was doing,
was conscious of what it was doing. It probably did
not realize what it was doing was in violation of the
law, but that is immaterial. (T., November 23, 1977,
p. 3).
In the absence of a showing of something more than
mere knowledge of a disproportionate impact upon the
sexes discriminatory intent has not been established.
This conflict between the decisions in two cases before
the same circuit and the conflict in this case with the
decision in Washington v. Davis, supra, justifies the
grant of a writ of certiorari to establish a standard for
proof of intent under the Fourteenth Amendment.
SUMMARY
It has been demonstrated that the City of Cnicago’s
Career Service System is a bona fide merit employment
system as defined by the Equal Pay Act and Title VII.
The City is thus exempt from application of those Acts.
Moreover, it has been demonstrated that the City of
|
Chicago did not engage in intentional discrimination as
contemplated by this Court in Washington v. Davis, 426
U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), a
requirement which must be met to prove a violation of
the Fourteenth Amendment. It cannot be disputed that
one seeking to recover under Section 1983 (42 U.S.C.
§1983) must prove a deprivation of rights and privileges
guaranteed by the United States Constitution or laws.
Because plaintiffs have not proved a right to equal pay
under either the Equal Pay Act, Title VII or the Four-
teenth Amendment they cannot prevail upon their
Section 1983 claim.
CONCLUSION
For all of the foregoing reasons petitioner respectfully
prays that this Honorable Court grant a writ of cer-
tiorari to the United States Court of Appeals for the
Seventh Circuit to review its decision in this case.
Respectfully submitted,
STANLEY J. GARBER,
Corporation Counsel of the City of Chicago,
511 City Hall, Chicago, Illinois 60602,
(312) 744-6926,
Counsel for Petitioner.
DanreL Pascacez,
Deputy Corporation Counsel,
Rosert R. RerKe,
Chief Assistant Corporation Counsel,
Of Counsel.
APPENDIX
—_ 1a-—
Opinion Of The United States District Court
For The Northern District Of Illinois
* © (Caption No. 7403365) * *
DECREE
Plaintiffs having filed their complaint herein on Novem-
ber 20, 1974, alleging sex discrimination in employment in
violation of several federal and state statutes and constitu-
tional provisions; this Court having considered the memo-
randum submitted by plaintiffs and defendant on the issue
of class certification and the proper scope of the class; this
Court having certified this action as a class action on be-
half of those female persons who have held the position of
janitress or custodial assistant in the Department of Pub-
lic Works of defendant and on behalf of females employed
in clerical positions in the Department of Water and Sewers
who perform the same or substantially similar work as male
yard clerks employed in said Department; a trial in this
cause having been held during May, June and July of 1977;
this Court having considered the evidence and the issues
of law presented; this Court having found in findings of
fact attached hereto as Exhibit A and incorporated herein
by this reference that females who hold or have held the
position of janitress or custodial assistant in the Depart-
ment of Public Works of defendant perform the same or
substantially similar work as males who hold or have held
the position of janitor or custodial worker and that there
are females who hold or have held clerical positions in the
Department of Water and Sewers who perform the same
or substantially similar work as male yard clerks; this Court
—2a—
having found that the defendant willfully and intentionally
discriminated against females classified as janitresses and
custodial assistants in the Department of Public Works of
defendant and against females classified in clerical posi-
tions in the Department of Water and Sewers of defendant
who perform the same or substantially similar work as
males classified as yard clerks in said Department, on ac-
count of sex; this Court having heard and considered evi-
dence concerning the job duties of females who hold or have
held clerical positions in the Department of Water and
Sewers and having determined class membership of cleri-
cal employees based upon such evidence; this Court having
found that there are yard clerks who work the same number
of hours as female class members of the Department of
Water and Sewers; this Court having found that Eleanor
Protas, a clerk in the Department of Water and Sewers, has
been harassed and retaliated against because she filed com-
plaints against defendant for sex discrimination in em-
ployment; this Court having considered the issues raised
in defendant’s post trial brief, plaintiffs’ response thereto
and the amicus brief submitted by the Department of Labor
and having ruled that the plaintiffs and the class they rep-
resent are entitled to relief under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §2000e, the 14th Amendment
to the Constitution of the United States and Section 1983
of the 1861 Civil Rights Act, 42 U.S.C. §1983, and that the
named plaintiffs are entitled to relief under the Equal Pay
Act, 29, U.S.C. §206; this Court having considered memor-
anda submitted by plaintiffs and defendant on the issues of
pre-judgment interest and liquidated damages; this Court
having determined that pre-judgment interest shall be pay-
able on the back pay award and that the named plaintiffs
are entitled to liquidated damages under the Equal Pay Act,
—3a—
29 U.S.C. §206; the members of the class having been noti-
fied and given an opportunity to exclude themselves from
the class as appears from the affidavits attached hereto and
incorporated herein as Exhibit B; and the persons listed
on Exhibit C having appeared and having been permitted
by this Court to be excluded from the class for purposes
of the receipt of back pay and benefits as provided for here-
inafter :
It is hereby Ordered, Adjudged and Decreed as follows:
Jurisdiction
1. This Court has jurisdiction of the subject matter of this
action and of the parties hereto. The Complaint states claims
upon which relief may be granted under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e, the 14th Amend-
ment to the Constitution of the United States, Section 1983
of the 1861 Civil Rights Act, 42 U.S.C. $1983 and the Equal
Pay Act, 29 U.S.C: §206.
Definitions
2. As used in this Decree:
(a) ‘*Custodial employee’’ shall mean a person in the
position of custodial worker, custodial assistant, janitor, or
janitress in the Department of Public Works of defendant,
or any future designation covering any of such positions.
(b) ‘Clerical employee”’ shall mean a female clerical
employee of defendant in the Department of Water and
Sewers.
(ec) ‘*Yard clerk’’ shall mean a male in the position of
yard clerk in the Department of Water and Sewers.
—4a—
Applicability
3. The provisions of this Decree shall apply to defendant
and each of its officials, officers, agents and employees.
Prohibitions
4. The defendant is permanently enjoined from the date
of the entry of this Decree from engaging in any act, poli-
ey or practice which has the purpose or effect of discrimi-
nating in the terms or conditions of employment, against
any female custodial employee or any female clerical em-
ployee, including, but not limited to, those females listed on
Exhibits B and C hereto, on account of sex, and specifically
from:
(a) paying females lower salaries than males for the
same or substantially similar wurk;
(b) excluding any persou from any job classification
or job duties on the basis of sex;
(c) harassing or retaliating against any named plain-
tiff or class member and her family.
Dack Pay and Benefits
5. The defendant shall pay back pay to each named plain-
tiff and each member of the class within a reasonable time
after the entry of this Decree, with the amount of such back
pay to be computed as follows:
(a) for female custodial employees of the Department
of Public Works, the difference between the pay of janitors
and janitresses or custodial workers and custodial assist-
ants computed on an hourly basis and adjusted for any un-
compensated absences of each class member for any time a
class member was employed as a janitress or custodial as-
sistant between March 24, 1972 and the date of the entry
of this Decree;
—b5a—
(b) for female clerical employees of the Department of
Water and Sewers who perform the same or substantially
similar work as yard clerks, the difference between the pay
of such female clerical employees and yard clerks computed
on an hourly basis and adjusted for any uncompensated ab-
sences of each female clerical class member for any time
such class member performed the same or similar work as
yard clerks from March 24, 1972 to the date of the entry
of this Decree.
The named plaintiffs shall be entitled to double the
amount of back pay to which they are entitled under the
formulae set in this paragraph as liquidated damages un-
der Section 216(b) of the Equal Pay Act, 29 U.S.C. §216(b)
from May 1, 1974 to the date of the entry of this Decree. The
persons eligible to receive back pay and liquidated damages
and the amounts to be paid are set forth on Exhibit D to
this Decree.
6. The defendant shall pay plaintiff, Eleanor Protas, the
sum of two thousand dollars ($2,000.00) in damages for
mental distress caused by the defendant’s harassment and
retaliation against plaintiff, Eleanor Protas, for having
filed a complaint against defendant for sex discrimination
in employment.
7. Pre-judgment interest at six percent (6%) shall be
payable on the total amount of back pay to be paid to each
class member and named plaintiff, excluding back pay pay-
able to the named plaintiffs, from May 1, 1974 to the date
of the entry of this Decree.
8. The interest on judgments payable to governmental
bodies under the Illinois Revised Statutes, ch. 74 §3 (1977)
as it now exists and as it may be amended from time to
time, shall accrue on the total amounts to be paid under
paragraphs 5, 6 and 7 of this Decree from the date of this
Decree until said amounts are fully paid.
—6a—
9. The defendant shall comply with any and all federal
state and local laws and practices governing pension con-
tributions by defendant on behaf of its employees as may
be made necessary by the retroactive pay increases to each
of the named plaintiffs and class members.
The back pay awarded to each said named plaintiff and
class member shall be subject to a deduction for such ad-
ditional pension contributions as are made necessary by
the retroactive pay increases indicated by the back pay
award to each said named plaintiff and class member in
each of the years from March 24, 1972 to the date of the
entry of this Decree.
10. Plaintiffs shall notify class meibers of the amounts
to which tl.sy are entitled under the provisions of this De-
cree. Any dispute as to the amount or computation of back
pay to be paid to any named plaintiff or member of the
class shall be resolved by this Court upon the motion of any
party or class member.
Attorney's Fees
11. The defendant shall pay plaintiffs’ attorneys reason-
able attorney’s fees and costs and expenses of this suit.
Plaintiffs shall submit a petition for attorney’s fees and
costs within a reasonable time after the entry of this De-
cree. Any attorney’s fees and costs awarded by this Court
shall be paid within a reasonable time after such award.
Compliance
12. Three months following the entry of this Decree, de-
fendant shall submit to the Court satisfactory evidence of
compliance with the terms of this Decree, including names
of recipients of equal pay, back pay and the amounts of back
pay paid to each.
—Ja—
13. The Court shall retain jurisdiction over this matter to
insure full and continuous compliance with this Decree.
Any plaintiff or class member shall have the right to move
for its enforcement.
Omitted Female Employees
14. The provisions of this Decree shall apply to any fe-
male custodial employee or clerical employee omitted from
the list of such employees contained in the Affidavit of de-
fendant attached hereto and incorporated herein as Exhibit
EK. Any female custodial employee or clerical employee
omitted from such list may by motion of such employee or
any of the parties move this Court to be included as a class
member. If the Court finds after a hearing on such motion
that such person is a proper class member, the provisions of
this Decree shall apply to such person.
ENTER:
/s/ John F. Grady
United States District Judge
DATED: November 17, 1978
ae ee
EXHIBIT A
FINDINGS
The Court: The Court will now state its findings of fact
and conclusions of iaw.
First, in regard to the custodians, I find that there is
a validation for distinguishing between heavy work and
light work. There isn’t any question in my mind that some
of the work that is performed by the custodial workers
is considerably more onerous than work regularly per-
formed by persons who clean offices. I believe that the
evidence amply supports the conclusion that the stripping
of floors by the use of a stripping machine is heavy work,
and that it is work that could not be done on a regular
basis by most of the present custodial assistants, if it could
be done by any of them on a regular basis.
Snow shoveling is another heavy duty and the wet mop-
ping of hallways and corridors is a heavy type of work.
I think it is quite distinguishable from the lighter spot
mopping that is done in the office areas. The matter of
sweeping stairways is not a heavy duty. That is essen-
tially no different from sweeping in the office areas. The
cleaning of public washrooms and the mopping of public
washrooms is different in no significant way from clean-
ing and mopping of washrooms in private office areas. It
is just more of the same. It would take longer to do, but
there is nothing that is harder about it. The wet mopping
could be accomplished with a small mop. It might take
longer, but it is not heavier. But, as I have indicated, I
do believe that there are these heavy duties that justify
higher pay for persons who devote all or substantially all
of their time to the performance of those duties.
—9Ja—
When I heard Mr. Dolan’s report, it seemed to me to
make sense. That is, his recommendation that there be a
break-down between those who do heavy work and those
whe do light work, and I take it that the classifications
that were then devised by the Civil Service Commission
were at least, in part, an attempt to effectuate that rec-
ommendation. It does seem to me that the job descriptions
of those two positions, while not perfectly discriminating
between light and heavy work in every particular, sub-
stantially differentiate between light work, on the one hand,
and heavy work, on the other.
If we were dealing with a case where the custodial work-
ers all did the work set forth in the job description of cus-
todial workers, or that they all did the kind of work that
I have indicated I considered to be heavy, then I would
have nothing before me to decide. Or rather, I would sim-
ply decide the case in favor of the defendant. We don’t
have that kind of case. Rather, the case we have is one
where persons who clean offices be they male or female,
devote all or substantially all of their time to the light
work involved in that pursuit. I find that the heavy work
that is done by these custodial workers assigned to office
sections is so occasional and incidental, it is not by any
means a major part of their work.
As illustrative of that finding, we can analyze the tes-
timony of the three custodial workers who testified in the
plaintiffs’ part of the case. I believe the testimony of these
men. I found them to be credible witnesses. Willy Bell tes-
tified that he cleaned offices in much the same way that
Mattie Scott cleans offices, and that in addition to that he
sweeps stairways about four times a month. And it was
he who said that sweeping stairways is no more difficult
than sweeping office areas. He also mops hallways two or
—10a—
three times a year. Hallway mopping, as I have indicated,
is something I consider to be a heavy duty, but I don’t
consider doing it two or three times a year as being a suf-
ficient participation in that heavy work to justify a salary
differential.
Willie Bell testified that he shoveled snow once in 1977.
Shoveling snow, while being a heavy duty, does not jus-
tify the salary differential because it is an occasional
It is not a regular part of the job. Willie Bell testified
that he had carried boxes occasionally and that he has
been on the stripping crew on occasion. Here again, it was
not a regular part of his duties. It was not a substantial
part of his duties.
Ernest Farlow testified that in addition to cleaning offices,
he picked up Lorraine Waller’s paper. I think there is
evidence that a number of the men picked up paper, but
I think the evidence also indicates that that was a volun-
tary action on their part, I take it, performed as much
out of friendship for their co-workers as anything else.
There certainly is no indication that they were required
to do that. And even if they were required to do that as
part of their job description, I don’t regard the emptying
of waste baskets and the pushing of a gondola filled with
waste paper out to the hallway as being heavy duty. I
think it is light duty in the same character as the rest of
the activities involved in cleaning offices. Why the men did
it so often to accommodate the women is not altogether
clear to me. Perhaps they can do it faster. I don’t know,
but I don’t regard it as being sufficient to justify a salary
differential either alone or in combination with any of the
other factors I have mentioned.
Ernest Farlow further testified that he shoveled snow
once in 1977, and that he does that at most two or three
times a year and it takes about thirty minutes each time.
—lla—
Thirty minutes in 1977, and an hour or hour and a half in
1976 cannot seriously be considered in my view as a sub-
stantial part of his work. He says that he does stair sweep-
ing two or three times a year. Mr. Farlow further testi-
fied that the heaviest thing that he has lifted in his job
is a box of IBM cards that weighs 15 to 20 pounds—hardly
heavy lifting.
The third witness was Calvin Johnson, whose testimony
was substantially the same as that of Willie Bell and Er-
nest Farlow. As opposed to the testimony of these wit-
nesses, there was some indication that some of the cus-
todial workers devote most of their time to heavy labor,
as I have defined it, and that is undoubtedly true. The
people here on the mopping crew, and the people who
are assigned to the toilets, the people who do the stripping
and waxing, are unquestionably engaged in heavy work
during the time that they are doing that. But the test
that has been laid down by the cases, is not whether
some of the more highly paid persons do work justifying
higher pay, but rather whether they all are doing it. And
I read ‘‘all’’ to mean all for practical purposes. I think
Miss Jenkins’ answer to my question was a good one.
Surely if we have an occasional employee who is shirking
his responsibility, contrary to the official policy of the
employer that would not in my view justify raising all
the women up to the level of all the men who are doing
harder work. I think that would be an unreasonable re-
sult and that was not intended by the statute.
I was troubled throughout this case, as I indicated quite
frankly to counsel, by the question of whether the women
who did not do heavy work should be paid the same as
men who did do heavy work simply because some men
did not do heavy work. And I have concluded from read-
—12a—
ing the cases and thinking about it that that is precisely
whe*+ the statute requires. This is a statute that is ad-
dressed to one evil. It is not addressed to all evils. It is
specifically concerned with equalizing the pay of women
who do the same work as men who are paid at a higher
rate. It is not concerned with the question of whether
others may be getting away with something. It is not con-
cerned with the question of whether they are already well
paid. It is not concerned with the question of whether the
men who are doing their work are paid too much. It is
concerned exclusively with the question of whether people
who do substantially the same work are getting substan-
tially the same pay, and if there is a significant number
of men or, I suppose—one could conceive in the opposite
situation, a significant number of women who are doing
the same work as the other sex, and getting paid more
for it, then the sex that is not getting that higher pay is
entitled to get it. That is my understanding of the law.
Now, the testimony of Bell, Farlow and Johnson is cor-
roborated by Mr. White. Mr. White testified that most
men assigned to offices really do no heavy work, and I
believe these were his exact words. I found Mr. White
to be perhaps the most credible witness in the trial. I
felt that he was trying to tell it the way it really is with-
out regard to which side of the case it might hurt. Bear-
ing in mind the position that he occupies in the case, I felt
that was certainly commendable and refreshing.
The fact that the women failed to take the examination
fo. custodial worker, I think is immaterial because it really
begs the question. If they are doing the same work, the
statute entitled them to the same pay, whether they take
an examination or not. Their reasons for not taking the
examination may or may not have been valid, but I re-
gard that fact as immaterial. As to whether there should
——
——
—13a—
be expert testimony on the question of whether the wage
differential is justified by the occasional heavy work that
‘the men do, I find that there is no need for such testi-
mony because the need is obviated by my finding that
that work is not a significant part of the total work that
the males assigned to the offices do. And it does not af-
ford the justification for the higher salary. Rather, in
very large part, that additional work is a rationalization
derived after the fact to justify the higher wages.
Mr. White said he came into the picture at City Hall,
decided that something had to be done to justify the fact
that the men were already being paid higher wages for
doing the same work as the women, and therefore he fig-
ured out things to try and justify that differenc:.
Now, it will be my conclusion, therefore, that those
women who have been doing the same kind of work as
custodial assistants, as has been done by the witnesses,
Bell, Farlow and Johnson as custodial workers, will be
entitled to receive the difference between what they were
paid as custodial assistants and what they would have
received had they been paid the same as Bell, Farlow and
Johnson for the period following the effective date of the
pertinent statute and within the period of limitations.
I might say a word about the pertinent statute. I am
not entirely clear what other than the Equal Pay Act is
involved here. Clearly, the case can be decided under the
Equal Pay Act, and that is the statute that I have in mind
in these remarks. Should it turn out that under other stat-
utes the plaintiffs feel that they are entitled to relief for
a longer period of time, then I will consider that at such
time as that is brought to my attention.
The matter of promotions of the custodians is a dif-
ferent situation. I find that the plaintiffs fail to show any
—l4a—
sexual discrimination sufficient for me to grant relief in
regard to promotions to sub-foreman. Some women have
been appointed to the position of sub-foreman. My recol-
lection of the testimony is that however many sub-fore-
men there are, the women are probably the majority of
that group at this point, so I certainly think there is no
need for any prospective relief in that regard. As to wheth-
er there is any evidence of past discrimination after the
effective date of any relevant statute, I simply find that
the evidence is not sufficient. Granted no women were pro-
posed for the job, but I do not recall that after the ef-
fective date of any pertinent statute, any women applied
for the job and was turned down in favor of a man. On
the contrary, it seems to me that after the effective date
of the statute, the only evidence I can recall about any
sub-foreman being appointed had to do with the appoint-
ment of women. There is no indication that the males who
were appointed to the job as sub-foreman were unquali-
fied. There is no indication that they were not more quali-
fied than any women who may have been interested in
the job, and there is no indication of any women quali-
fied for the job who were turned down for it on the basis
of sex, after the effective date of the act. True, Mr. White
testified that the idea of a woman sub-foreman had never
occurred to him, but that of course really describes the
situation that existed prior to the enactment of this legis-
lation. And the fact that that attitude may have carried
over in his mind until the proposition was specifically pro-
posed to him, does not in my view constitute a basis for
imposing liability under the statute.
Turning now to the Water Department, I find that most
yard clerks do only occasional manual labor. And that that
manual work which they occasionally do is incidental to
—15a—
their jobs and is not a principal part of their jobs. More-
over, I find that some yard clerks do no manual labor
whatsoever, nor are they expected to do any, nor has it
ever been anticipated that they would do that. I find that
the yard clerks in the latter category are a significant
number. So that even if there are some yard clerks who
do a great deal of manual labor and perhaps Mr. Adduci
does. He strikes me as telling the truth when he describes
his liking for physical labor—the fact that he does it, does
not change the result in this case. He is an exception.
So essentially then I find that the yard clerks fall into
three categories; category one is Mr. Adduci, and he may
be the sole occupant in that category. I am inclined to
think he is. He does a great deal of physical work. He
says about 50% of his time, but he does it on a voluntary
basis. It is not required by either the description of his
job or by the rules that are in fact enforced in regard to
yard clerks. Category two are those yard clerks who do
some physical labor in isolated cases as needed. I find that
they are still a minority of the total number of yard clerks
about whom I have heard testimony. I also find on the
question of credibility that most of the yard clerks who
testified here and most of the people who testified on the
defense side of the case about the yard clerks, came off
second best as far as credibility is concerned. Therefore,
to the extent that there is a dispute in the evidence as to
how much physical labor those yard clerks who do any
physical labor actually do, I resolve those credibility ques-
tions in favor of the plaintiff,
I find, therefore, that that class or those classes of
female employees in the Water Department who do and
have done within the limitation period following the en-
actment of the appropriate legislation the same or sub-
stantially the same work as yards clerks, would be en-
—1l6a—
titled to the difference in salary between what they were
paid and what the yard clerks were paid. Now, in that
connection, I might also say that on the question of the
weight of the evidence, I heard testimony about the lack
of any physical work or manual work in the case of many
yard clerks and laborers, and I heard no contrary evi-
dence specifically related to these particular names with
the exception of Mr. Delmonte and Mr. Casey. And Mr.
Casey did not really gainsay the fact that he did no phys-
ical labor while he was at Ohio Street. I heard, for instance,
no contradiction of Mrs. Protas’ testimony about Mr. Sam-
son, about Mr. Janwidewski, and about Mr. Greenfield. I
heard no specific contradiction of Mrs. Kavanough’s tes-
timony about Mr. Samson, Mr. Hanrahan, Mr. White, Mr.
Powers, Mr. Waldren, Mr. Meaney, no specific contradic-
tion of Mrs. Doris’ testimony about—I take it the same
Mr. Waldren, Mr. Lilly, Mr. Burns, Mr. Scorch, Mr. Nor-
ton, Mr. McNamara; no specific contradiction of Odessa
Gates’ testimony of Chester Sabowski or Amena Franc
testimony about Francis Lawler, or Michael Kovack. Those
were not all of the names, but there are many of them,
and I realize that some are yard clerks and some are
laborers. I take it most of them are yard clerks, but to
have the foreman or the superintendent whose knowledge
of what these men do at any particular time is certainly
less comprehensive than their own come in and testify
just in general terms was to me less persuasive than the
testimony of specific individuals about what they in fact
did. I may say too that the testimony of superintendent,
Mr. La Verde, I felt tended to support the plaintiffs’ case
at least as much as it did the defendants’ case because, at
best, his testimony could be taken to support the proposi-
tion that most of the yard clerks fell into what I have
—17a—
designated as the category No. 2—those yard clerks who
do some physical labor some of the time.
I am also impressed by the CS-15 forms that were filled
out by some of the yard clerks describing what work
they did. This court will take judicial notice of the fact
that no employee filling out a job questionnaire is going to
underestimate or understate the work that he does. If
anything, such questionnaires are notariously fictional, on
the upside not the downside. And I have no doubt that
if any of these men had done any physical labor of any
kind, it would have been described in clear and unambigu-
ous terms, specifically since that is precisely what the ques-
tionnaire mandated in language that is most clear and ex-
press. So I found to be significant corroboration of the
fact that those yard clerks, and they alone, forgetting
everyone else, will constitute a significant number of the
total number of yard clerks. But I found that those forms
were highly persuasive corroboration of the plaintiffs’
case. I also believe that it is a fair inference that the jobs
of the yard clerks did not change from 1968 to the present
time. One of the clerks, Mr. Mundo, so testified. In the ab-
sence of any contrary evidence, it seems to me that that
inference is a reasonable one for the court to draw, and
it is the one that I do draw.
Now, turning from the matter of pay to the matter of
promotions, I find no evidence of any sexually based dis-
crimination against any of the plaintiffs as far as a pro-
motion is concerned, after the legislation became effec-
tive. I think that the best testimony an eloquent justifi-
cation of the legislation, if anyone ever doubted that women
were being discriminated against in the pre-Civil Rights
days, one only had to listen to the frank admission by the
City that they had to two lists; and anyone was entitled
—1%a—
to simply call for a male. Those women could literally sit
on that list until the City falls over and would never be
called. It would be a mere fortuitous circumstance that
someone would desire a woman before she was called. That
fortunately is ancient history. But just as an aside, I
found that testimony quite an impressive rationale for
this kind of legislation. But letting bygones be bygones, I
found no evidence that since the statute became effective,
any woman in the plaintiffs’ case at the Water Works,
was denied promotion in favor of a man on a sexual basis.
Now, it may be that women were promoted over more de-
serving members of their class, and that could have been
true for a variety of reasons. It could have been true for
reasons of political patronage or favoritism on a personal
basis, or a personal animosity, of which the evidence is not
wholly free of indication. But I found no evidence that
any member of this class was denied a promotion on the
basis that she was a woman.
Now, I believe that leaves only the matter of retalia-
tion in the case of Eleanor Protas and perhaps in the
ease of Mrs. Kavanough—I’m not certain. I believe that
these women have aroused a great deal of animosity on
the part of their superiors in the Water Department. I
believe that the way they have been treated since they
filed these Civil Rights claims is attributable to the fact
that they did file those claims. But I don’t know what I
can or should do about it. I don’t know what kind of re-
lief is indicated. Eleanor Protas is being paid as a Head
Clerk. There is no indication that she is either qualified
nor desirous of any higher position. And that the only
thing that seems to be the problem is that she has been
given work of a character that is less than she is quali-
fied for. I arn hesitant to order the City to give anybody
—19a—
a particular kind of work, because I don’t know that much
about the Water Department—who should be doing what
kind of work. That she should be given a certain kind of
pay is another matter. That does not involve meddling
into the day-to-day operations of a municipal government.
But for the court to start assigning duties to an employee
in any enterprise, let alone a public one, seems to me to
perhaps be beyond the ambit of the particular legislation
that we are dealing with here. I won’t foreclose the pos-
sibility, but I will indicate that I don’t see any meaningful
relief that I can grant on that.
Now, as far as Mrs. Kavanough is concerned, I don’t even
know whether the plaintiffs are asking for any relief as
far as retaliation, but I will say that I believe that Mrs.
Kavanough is, like Mrs. Protas, being required to pay
the price for her having filed these lawsuits. I think that
the difficulty that she is having with her superiors in her
office is traceable to this lawsuit, and its related actions
that had previously been filed. But there again, I don’t
know of any relief that I have the power to grant, I can’t
tell people to be friendly or to be forgiving. That is be-
yond my power.
I think that what we should do is to continue this case
for a brief period of time for the parties to explore this
question of the definition of class, and the Water Works
case to give the plaintiff time to consider further the mat-
ter.
(Exhibits B through E which recapitulate the names of
class members and the amounts of their back pay awards,
as well as, the names of potential class members, are omit-
ted.)
3
—20a—
Oral Decision of the Court
Rendered November 23, 1977
The Clerk: No. 74 C 3365, NOW v. The City of
Chicago, and 75 C 926, NOW v. Cahill.
The Court: Good morning.
Ms. Baran: Good morning, your Honor.
Ms. Duncan: Good morning.
The Court: Well, I have studied the briefs that the
parties have submitted on the matter of what laws
form the basis for liability here. I will take these mat-
ters one at a time.
I think it is clear that the conduct of the defendants
violated Title 7 and the Equal Pay Act. I do not think
it is necessary to have intent to discriminate under
Title 7, but even if it is, what was done here by the
City was done pursuant to a conscious policy of treat-
ing men one way and women another way. And while
one might stop short of saying that this implied ill
will on the part of the City or some evil intention
on the part of the City, nonetheless, the City knew
what it was doing, was conscious of what it was do-
ing. It probably did not realize what it was doing
was in violation of the law, but that is immaterial.
So whether you feel that intent is required under Title
7 or not, there is in my view a clear violation of Title
7. As I say, I do not think intent is required where
you have a policy of this kind and where you have
the result that we had here, but if it is, the require-
ment is satisfied.
The exception for a merit system has no applica-
tion here, I think. This was not a merit system in any
sense that is contemplated by that exception. It is
—2la—
quite clear to me these are patronage jobs. Most of the
people involved were Civil Service in name only be-
cause they were so-called probationary employees. So
the systems that existed here were about as far away
from any merit system as one can get in my opinion.
As far as the Equal Pay Act is concerned, I do not
think the Tenth Amendment is a limitation. The Four-
teenth Amendment is adequate ground for the Equal
Pay Act, and I think that a requirement that mu-
nicipalities not discriminate on the basis of sex is not
the type of thing that was contemplated by the Na-
tional League of Cities’ case as an undue interference
with state functions. So we just do not have a Tenth
Amendment problem here as far as I am concerned.
The same ruling applies as far as a merit system
exception to the Equal Pay Act. There is no merit
system here.
Now, as far as Section 1983 is concerned, I do not
believe that there is evidence of individual responsi-
bility here. I agree with the defendants that the mem-
bers of the Civil Service Commission were powerless
to do anything but recommend, and the department
heads were free to ignore their recommendations if
they saw fit to do so, which I think is what we saw in
one instance there where they did recommend that
something be done and it was not done. So I do not
think that there is any basis here for an award of
damages under Section 1983.
There is ground for injunctive relief as far as fu-
ture conduct is concerned, and I think that could be
granted under Title 7. I do not know whether the Equal
Pay Act provides for injunctions or not, but if it is
necessary to enlist the aid of 1983 for injunctive re-
—22a—
lief, maybe one could make a distinction between par-
ticipation required for—Well, no. Let me take that
back. The Civil Service Commission does not have
any more to do with the future than they have with
the past, it seems te me. It is the department heads
of the City of Chicago who have to be enjoined; and
enjoining the City and its employees, that matter will
be taken care of. So I think that on both the damage
matter and the injunctive matter, there is no 1983 ac-
tion here, and I am referring there to case 75 C 926.
That is the case in which the individual members of
the Civil Service Commission were made defendants.
I want to put to one side for a moment the ques-
tion of the Fourteenth Amendment because that I find
the most difficult subject and go on to the other causes
of action that are alleged in 74 C 3365. Count I of that
complaint is Title 7, and I have already indicated my
views on that.
Now, Count II refers to executive order 11246. I
do not know what that is.
Ms. Baran: I think that was dismissed, your Honor.
The Court: Oh, was that dismissed?
Ms. Baran: There were some that were dismissed.
The Court: Oh, I see. They were dismissed by Judge
McMillen?
Ms. Baran: Yes.
The Court: All right.
Well, that is why you did not brief the subject. So
anything you did not brief, I can assume was dismissed.
All right.
Now, Count IV seeks relief under Article 1, Section
17 of the Illinois Constitution of 1970, which reads as
follows:
—23a—
‘* All persons shall have the right to be free from
discrimination on the basis of race, color, creed,
national ancestry, and sex in the hiring and promo-
tion practices of any employer or in the sale or
rental of property.’’
I have held here that there is no violation in regard
to promotion, and the only other thing that that pro-
vision of the Constitution refers to is hiring. Whether
hiring is a broad enough word to include differential
pay for the same work, I do not know. I doubt it, but
I do not know. And whether you have a cause here
for hiring people as assistants rather than as work-
ers; whether that is a discrimination of hiring, I can
see how you could argue that.
H~ er, I have discretion as to whether I will en-
tertain a pendent action under State law. It seems
inappropriate to me for a Federal District Court to
be the first interpreter of a particular provision of the
Illinois Constitution when that is unnecessary to af-
ford complete relief in the case.
So I am going to decline to interpret that section
of the Dlinois Constitution because it is unnecessary.
I am going to dismiss Count IV of 74 C 3365 as a
pendent claim. I am not saying that you have not proved
the case, but I am not saying that you have. I am de-
clining to rule on it, and I am dismissing it in the
exercise of my discretion.
Count V of that case alleges a violation of Section
18 of Article 1 of the Illinois Constitution, which reads
as follows:
‘‘The equal protection of the law shall not be
denied or abridged on account of sex by the State
or its units of local government and school dis-
tricts.’’
- %4a—
I am going to do the same thing here. I do not
think it is necessary for me to decide whether the
conduct here violated that provision of the I[linois
Constitution, and I will dismiss that again in the exer-
cise of my discretion.
Count VII alleges a violation of the Illinois Fair
Employment Practices Act. There are questions of
whether there has been exhaustion here and by whom
and whether we have a proper class and some very
real issues that the defendants have raised in connec-
tion with this particular count. This is another pendent
claim in which it is unnecessary for me to decide in
order to afford complete relief in this case. So I am
going to dismiss Count VII on the same basis.
Now, I believe that leaves only the Fourteenth
Amendment. I want to take a minute here and look
at the briefs on that matter.
You can be seated if you want.
(There was a brief interruption, after which the
following further proceedings were had herein:)
The Court: The question that I have in regard to
the Fourteenth Amendment is whether it applies to
sexual discrimination, and I take it that Frontiero v.
Richardson, which is cited by the defendant, decided
in 1973 that it did require equal treatment of the sexes.
Ms. Baran: Yes.
The Court: Is it clear that that was the first such
decision?
Ms. Baran: That I am not sure of, your Honor.
Ms. Duncan: We were trying to find something.
Maybe you have heard of this, too, because I know
that we were talking about this in the office. It seems
to me—but we could not find the case—but there has
10
—25a—
been a case since Frontiero that resolved it, but it
was not a suspect classification because it has been
flopping back and forth. But I cannot give you that
cite offhand. We have been looking for it, though.
The Court: I have not read that case. Does it hold
that a racial discrimination violates the Fourteenth
Amendment?
Ms. Baran: Race or sex?
The Court: Excuse me, sexual. I said racial. I meant
sexual. I am assuming an intentional violation here be-
cause I find that there is one.
Wel, I am going to assume that that is the law as
of 1973. Now, if the defendants can convince me that
it is not the law—
Ms. Duncan: If we can find that case.
The Court: (Continuing)—or if the plaintiff can
convince me that it was the law prior to 1973, then what
I am about to say is subject to change, but it seems to
me that before a Court held that the Fourteenth Amend-
ment did prohibit sexual discrimination, that that was
one of those areas that was certainly up in the air.
And it seems to me that liability ought not to ante-
date the clarification of the law. This is not a matter
of violating the clear mandate of the statute such as
the Equal Pay Act or Title 7. This is a matter of
people interpreting what the Fourteenth Amendment
adopted back in the 19th century means in today’s
world. And just as under the Criminal Civil Rights
Act, a defendant cannot be held liable for violating
somebody’s civil rights if he had no reason to know
that such a right existed. It seems to me that the li-
ability under the Fourteenth Amendment here should
not extend to a period of time earlier than the Su-
—26a—
11 preme Court decision first holding that sexual dis-
crimination was prohibited.
Now, that may make a difference as to the amount of
money that the plaintiffs are entitled to receive here
because I guess you have got 1972 with the Equal Pay
Act, right? And if the Fourteenth Amendment—
Ms. Baran: No.
The Court: Pardon?
Ms. Baran: 1972 was Title 7 and 1974 was Equal
Pay.
The Court: All right. So maybe the Fourteenth
Amendment is not going to give you any additional
money, but if that is the way it is, that is the way it is.
Now, as I say, I am really not sure of what I am
doing here. I am trying to analogize it to other situa-
tions, and I will hear from you further if you want to
come up with any additional law on that because you
are going to have to do some more work to get the
final judgment prepared anyway.
So those are my views on what laws are involved
here.
Now, how far away are we from getting a money
judgment in favor of specific people?
Ms. Duncan: As far as—we have not obviously
issued the letters—I mean, because we have not had
them approved by you.
—27a—
Opinion Of the United States Court Of
Appeals For The Seventh Circuit
No. 78-2652
NATIONAL ORGANIZATION FoR WOMEN, SUSIE BATES,
MATTIE SCOTT, ODESSA GATES, VERA SANFORD, and
ELEANOR PROTAS, individually and on behalf of all
others similarly situated,
Plaintiff-Appellees,
v.
City OF CHICAGO, a municipal corporation,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 74-C-3365—John F. Grady, Judge.
ARGUED NOVEMBER 29, 1979—DEcIDED APRIL 29, 1980
Before SPRECHER, Circuit Judge, Wispom, Senior Cir-
cuit Judge,* and TONE, Circuit Judge.
ORDER
This is an action on behalf of two classes of women for
relief from the City of Chicago’s practice of paying
lower wages to women than men when both do substan-
tially equal work. Of the various legal bases advanced
by plaintiffs in the district court, the only four remain-
* The Honorable John Minor Wisdom, Senior Circuit Judge
of the United States Court of Appeals for the Fifth Circuit, is
sitting by designation.
> =
—28a—
ing in the case are those on which the district court
relied in granting relief to the plaintiff classes, viz., Ti-
tle VII of the Civil Rights Act of 1964, 42 U.S.C.
ret et seq.; the Fourteenth Amendment; 42 U.S.C.
1983; and to the named plaintiffs only, the Equal Pay
Act, 29 U.S.C. § 206(d\1)ii). We affirm in part and
reverse and remand in part.
The two plaintiff classes are (1) women who are or
were janitresses, or custodial assistants as they are now
called, in the Department of Public Works (referred to
herein as “the custodial class”) and (2) women who are
or were clerks in the Department of Water and Sewers
performing “the same or substantially similar work” as
ard clerks ge hig to herein as “the clerical class”).
he custodial class is represented by named plaintif
Susie Bates, Mattie Scott, and Vera Sanford. The
clerical class is represented by named plaintiffs Eleanor
Protas from the Water Division of the Department of
Water and Sewers and Odessa Gates from the Sewer
Division.
The only defendant remaining in the case is the City
of Chicago.
In 1977 the court held a trial on liability generally,
postponing until later the determination of which per-
sons other than the named plaintiffs would be entitled to
monetary relief. The rey then announced his decision
in favor of ae eee classes, holding that the city
had discrimina against women custodial assistants
and women clerks in violation of Title VII, the Equal
Pay Act, and the Fourteenth Amendment. He also
allowed relief under 42 U.S.C. eg against the city.
The named plaintiffs were awarded liquidated damages
under the Equal Pay Act.
Custodial Employees
Title VII became applicable to the City of Chicago in
1972, the Equal Pay Act in 1974. Before 1973, the City
classified all male custodial employees as “janitors” and
all female custodial employees as “janitresses.” Before
1972 only men could apply for the job of janitor and only
—29a—
women could apply for the job of janitress. Janitors were
paid more than janitresses. These job titles were
eliminated January 1, 1973, when janitors were
reclassified as custodial workers and janitresses as
custodial assistants. No job duties were changed, and no
janitors were required to pass any job-related tests to re-
tain their more highly paid status. In late 1973 and ear-
ly 1974, new applicants for the two o which both had
low turnover rates, were required to take new job-
related tests. The major difference between the two sets
of tests for the positions were the physical performance
tests required only of gs gga for jobs as custodial
workers.! According to the record, however, the situa-
tion remained that jobs of one classification were filled
only with men and the other only with women, and the
men received higher pay than the women.
After listening to the evidence, Judge Grady found
that the work to which most of the custodial staff, male
and female, were assigned was cleaning office areas and
that the work of this kind done by men and women was
substantially the same, involving little or no heavy labor.
The disparate pay was undisputed. The court later
granted relief to all women who were or are janitresses
or custodial assistants for the period or periods during
which each class member received disparate compensa-
tion.
Clerical Employees
The city has maintained the job title of “yard clerk” in
the Department of Water and Sewers. Only men occupy
the position of yard clerk. Judge Grady found that
women in other clerical positions in the Department, all
of whom have been and are paid less than the yard
clerks, do substantially the same work as yard clerks.
After the trial on liability, the city moved to limit the
clerical class to women doing the same work as yard
1 The city also introduced testimony that it made an effort to
insure that underutilized custodial workers shouldered more
of the burden of cleaning the building.
—30a—
clerks in the Water Distribution Division of the Depart-
ment of Water and Sewers; but the court denied this
motion and included in the class women doing such
work in the Department’s Sewer Division.
Subsequently, the court proceeded to determine which
individual women clerks should be granted relief.
Membership in the clerical class had been defined not
by job title but in terms of the nature of the work done
by class members. For this reason, the court
characterized the process of prove-up as a determination
of which potential class members were in the class.
The identification of individual clerical class members
by determining whether each prospective class member
did the same work as yard clerks proceeded through a
combination of evidentiary hearings and qualified
stipulations. After evidentiary hearings were under way,
counsel for the city, while not agreeing with the stan-
dards declared by the court for determining equivalen-
cy,? stipulated that certain of the potential class
members met those standards and would be class
members if the standards were correct. Other potential
class members were withdrawn as such by plaintiffs.
The court heard evidence and argument about each
remaining potential class member as to whom the city
declined to stipulate and ruled her in or out of the class.
Determinations were also made as to the time period or
periods each woman performed the equivalent work.?
The final decree enjoined the city from further dis-
crimination and awarded money damages to each of the
named plaintiffs and each custodial and clerical class
2 As we discuss, infra, neither p has cited the court’s
declaration of those standards in any detail, and we have been
unable to find any such declaration.
§ Both plaintiff classes also complained of discrimination in
promotions on the basis of sex, but the district court found
against plaintiffs on this point, and they have not cross-
appealed. The decree of the district court nevertheless
prohibits the city from “excluding any person from any job
classification or job duties on the basis of sex,” a prohibition
that the city does not appeal.
—3la—
member, in the amount of the pay differential between
her compensation during the relevant period or periods
and the compensation of men doing equivalent work.
The named plaintiffs were awarded double damages un-
pod the Equal Pay Act. The city appeals from the
ecree.
3
The city first argues that the members of both plain-
tiff classes were hired and compensated under a bona
fide merit system of employment, which constitutes an
affirmative defense under both Title VII, 42 U.S.C.
toon and the Equal Pay Act, 29 U.S.C.
206(dX1). The gist of the argument, as best we can
— rom the briefs, is that the wage differential
tween the men and women employees in both classes
results solely from two permissible sources—(1) the non-
discriminatory application of neutral job-related criteria
to applicants under the city’s career civil service system,
and (2) the perpetuation by the civil service system of
discrimination occurring before the applicability of Title
VII and Equal Pay Act to local governments, which is
exempted under International Brotherhood of Teamsters
v. United States, 481 U.S. 324 (1977). The city’s argu-
ment is without merit.
When applied to the custodial class, the argument
might possess a grain of plausibility, except for the dis-
trict court fact findings that the jobs performed by male
and female custodians are substantially equal.‘ The
merit system for hiring and promotion that the city has
shown might be a valid response to allegations that
women were denied equal opportunity to qualify for
different jobs with co pay because of their sex. The
city might then exculpate itself by showing that fewer
women performed the higher paying job because they
performed less well on neutral, job-related ex-
aminations. However, in the context of a finding of une-
‘ We are not persuaded that these fact findings, which the
city attacks indirectly, are clearly erroneous.
—32a—
qual pay for equal work, the statutory bona fide merit
system exception serves to allow disparate pay resulting
from the application of objective standards that measure
how well different employees do the equal work. The
city has made no argument before this court that it
showed at trial that its career civil service system made
any wage distinction on this cround.5
The city also seems to argue that Teamsters validates
at least some instances where male custodians are paid
more for the same work. Specifically, the city appears to
argue that Teamsters allows it to grandfather all male
janitors into the higher paid custodial worker classifica-
tion because they were placed in a preferential category
before Title VII and the Equal Pay Act became
applicable to the city. According to the city, its other op-
tions are to correct the wage differential by lowering the
wages of the male employees generally or by demoting
individual male custodians after an individual civil ser-
vice hearing.
The city’s argument is merely an attempt to evade the
statutory requirement that disparate wages for oma!
work cannot be corrected by paying men less. 29 U.S.C.
§ 206(d)(1). Teamsters does not apply, in short, because
the city has failed to show-tthe existence of a bona fide
merit system underlying the wage disparity that, except
for the perpetuation of pre-Act discrimination, is a
5 The city places great emphasis upon the character of its
civil service system as a merit personnel system for purposes
of participation in federal grant-in-aid programs. The city
seems to believe that such a general showing suffices to shield
it from any finding whatsoever of discrimination under Title
VII and the Equal Pay Act pertaining to employees affected
by the system. However, to qualify for the exception after a
plaintiff has proved that unequal pay is received by men and
women for equal work, a defendant must show that the dis-
parity in w result directly from specific_permissible
rovisions of the system. See Usery v. Board of Educ., 462 F.
upp. 535, 568-69 (D. Md. 1978). We attach no significance to
the use by defendant in Usery of the “factor other than sex”
exception rather than the bona fide merit system exception.
—33a—
neutral legitimate system.’ The path available to the city
is to raise the women’s wages so as to equal those now
paid to the men.
The city’s argument has even less merit with respect
to the clerical class. There have never been any job-
related civil service examinations or tests relevant to the
hiring, promotion, or wages of yard clerks.
Thus the disparities in pay were not shown by the city
to have been based upon a bona fide merit system or on
any factor other than sex. pee he 5, the statutory
provisions relied upon are inapplicable.
II.
The city argues that plaintiffs failed to establish the
existence of an “official policy” of sex-based discrimina-
tion, and therefore under Monell v. Department of Social
Services, 436 U.S. 658 (1978), its liability under § 1983 is
not established. This argument, of course, does not apply
to the Title VII and Equal Pay Act claims, so even if it
were persuasive, the relief granted with respect to pay
differentials would be unchanged. In any event, the
offending job classifications were shown to have been
adopted by the Departments of Public Works and of
Water and Sewers pursuant to the recommendations of
the city’s Civil Service Commission, which is charged by
the city with the responsibility of setting employment
policies, and with the cooperation of the city council. The
official policy test of Monell is plainly satisfied.
6 In Teamsters, the Supreme Court held that requiring an
employer to adjust competitive seniority lists retroactively un-
der Title VII so as to extirpate all lingering effects of pre-Act
discrimination would “destroy or water down the vested
seniority rights of employees simply because their employer
en in discrimination prior to the passage of the
Act.” 431 U.S. at 353. In the case at bar, by contrast, male
custodians had no vested rights at the time that Title VII and
the Equal Pay Act became applicable to the city that will be
affected by our holding.
—34a—
III.
The city argues that proof of discriminatory motive or
intent is a necessary element of a Title VII case or a
claim under the Fourteenth Amendment, that the trial
court “failed to properly consider the question of the
City’s intent,” and that the evidence does not show dis-
criminatory intent. The district judge included a findin
of wilful discrimination in the decree. In his oral find-
ings the judge stated that the city intentionally treated
men and women differently but “probably did not
realize what it was doing was in violation of the law, but
that is immaterial.”
By now it should be clear in this circuit, most of all to
the City of Chicago, that Title VII plaintiffs do not
always need to show discriminatory motive or intent.
United States v. City of Chicago, 573 F.2d 416, 420-24
(7th Cir. 1978). See also United States v. City of Chicago,
549 F.2d 415, 435 (7th Cir. 1977). Accord, Scott v. %, of
Anniston, 597 F.2d 897, 899-900 (5th Cir. 1979). The
Supreme Court has indicated, however, that some proof
of discriminatory motive is necessary in Title VII dis-
arate treatment cases. International Brotherhood of
eamsters v. United States, 481 U.S. 324, 3385 n.15
(1977); see also Barnes v. St. Catherine’s Hospital, 563
F.2d 324, 328 (7th Cir. 1977). Yet the Court also stated
in Teamsters that discriminatory motive “can in some
situations be inferred from the mere fact of differences
in treatment.” 431 U.S. at 335 n.15.
The Fourteenth Amendment, of course, always re-
— proof of a discriminatory intent. Washington v.
avis, 426 U.S. 229 (1976).
Assuming that plaintiffs’ case is one of disparate
treatment,’ the district court’s finding of discriminatory
intent with respect to the custodial class is not clearly
erroneous. The city was aware that all janitors, later
called custodians, were men and that all janitresses,
7 At oral argument, plaintiffs contended that this case is
aes on both disparate impact and disparate treatment
eories.
—35a—
later custodial assistants, were women. It also knew
that, before and after the job titles were changed,
women did substantially the same work as men but
were paid less. It was expressly — of these facts
by James Dolan’s reports to the Civil Service Commis-
sion of studies he performed in 1972 and 1973. In the
face of these facts, the city made feeble, unsuccessful ef-
forts to separate the custodial work into heavy cleaning
and light cleaning categories. The simple alternative
available to the city was to pay women equally for doing
equal work.’ We are satisfied that there was ample
evidence that the city acted with discriminatory intent
with respect to the custodial class.
For reasons explained in Part VI, infra, we are
remanding the part of the case involving the clerical
class to the district court for further proceedings.
Nevertheless, it is appropriate to observe here that if the
conclusions of the district court with respect to that
class are ultimately supported by the fact findings that
are to be made, a supportable finding as to dis-
criminatory intent is likely to follow from the facts
found. This much is determinable from the record as it
now stands. For many years the city maintained the job
classification of “yard clerk” but never held an examina-
tion for that — and always filled vacancies in the
sprog by the “temporary” appointment of men.’ The
acts which plaintiffs argue show equivalency of work
but disparity in pay were open and notorious and could
hardly have been unknown to the responsible city of-
ficials. Job evaluation forms dating back at least to 1968
enabled the city to compare the work of yard clerks with
that of female clerks. Moreover, the problem was
specifically called to the city’s attention by Eleanor
® Any potential hardship caused the city’s civil service
8 — y such a straightforward, equitable step is no
efense.
® In its reply brief the city argues cryptically that the yard
clerks were paid more because they did not have the benefit of
civil service status. At oral argument, however, the city ad-
mitted that this argument was not presented to the district
court, so we need not consider it.
—36a—
Protas in January 1972. The city’s response was not to
investigate the issue of pay disparity but to retaliate
against Ms. Protas.”
IV.
The city also argues that the clerical class should have
been limited to women clerks who do the work of yard
clerks in the Water Distribution Division of the Depart-
ment of Water and Sewers and should not have included
women clerks who do the same work in the Sewer Divi-
sion. The city argues that plaintiffs’ counsel announced
that their claim would be so limited and then, in their
case in chief, called all but one of its witnesses from the
Water Distribution Division. As a result, says the city, it
confined its defense to witnesses in that division.
After the trial and the oral announcement by the
judge of his decision on general liability, which occurred
fore the individual members of the clerical class prov-
ed up their individual entitlement to relief, the city mov-
ed to limit the class to the Water Distribution Division.
The court denied the motion and allowed individual
women in the Sewer Division to offer proof that their
work was substantially the same as that performed by
yard clerks but they had received less pay. The city does
not contend that it was foreclosed from attempting to
rebut the evidence offered by any of these women.
We find no error in this. In the first place, as we read
the record the clerical class was not narrowed by plain-
tiffs’ counsel’s statement or the proof. As to the latter,
10 The city also argues in its briefs that since all civil service
clerical classifications in the Department of Water and
Sewers included men, women were paid less because of their
job classifications, not because of their sex. Assuming that
this argument was presented to the district court, we note
first, that it is no defense to an “y~ Pay Act claim that
some men doing equal work are not being pes more, second,
that the city’s argument is based on the false premise that
the yard clerk classification was valid, and, third, that women
ers gs the opportunity to become yard clerks, an all-
male class.
—37a—
one witness from the Sewer Division, Odessa Gates, who
was one of the two named plaintiffs in the clerical class,
was called by — in their case in chief on the
liability issue. Also, other evidence offered by plaintiffs
during their case showed that the discrimination
between the sexes was not limited to the Water Dis-
tribution Division. We do not find in the record the
change in direction that the city alleges.
Moreover, a class definition may be changed to meet
the requirements of justice at any time “before the deci-
sion on the merits.” Rule 23(cX1), Fed. R. Civ. P. In this
case, the decision on the merits was the final decree
awarding monetary relief to each of the members of the
plaintiff classes who had proved that she was entitled to
such relief. Since the city was not denied the opportuni-
ty to rebut the claims of individual women in the Sewer
Division who were included in the clerical class, the
court’s action was not error.
The city’s reliance on Taylor v. Safeway Stores, Inc.,
524 F.2d 263 (10th Cir. 1975), is misplaced. There the
plaintiff “failed to show the existence of any dis-
criminatory employment practices” or any aggrieved
employee outside the group (warehouse employees) to
which the class was limited. Here any individual woman
in the Department of Water and Sewers who will ul-
timately be included in the class, see Part VI infra, will
have proved that she performed the same work as ugh
clerks. Although yard clerks were not assigned solely to
the Water Distribution Division, even if they were, the
result would be the same. The fact of discrimination was
not altered by divisional classifications.
V
The city argues that the award of $2,000 to Eleanor
Protas as damages for the city’s retaliation against her
for filing an administrative claim charging discrimina-
tion should be set aside, because the conduct in question
occurred before the date when Title VII and the Equal
Pay Act became — The city says that because
the acts occurred before the effective date of the rele-
vant legislation, they are not actionable even if they
—38a—
were retaliatory, citing United Air Lines, Inc. v. Evans,
431 U.S. 553, 558 (1977).
The evidence credited by the trial judge showed that
on February 23, 1972, in retaliation for Ms. Protas’ fil-
ing of a complaint at the Illinois Fair Employment
Practices Commission, her supervisors took her personal
belongings from her desk and threw them on the floor,
withdrew all of her work assignments, and failed to give
her any new work assignment. Thereafter, her superiors
assigned her to small, menial tasks and continued to
treat her in this fashion until the time of the trial in this
case. As the judge found,
I believe that the way [Eleanor Protas and another
woman] have been treated since they filed these
Civil Rights claims is attributable to the fact that
they did file those claims.
Contrary to the facts in Evans, the actual violation of Ti-
tle VII, as opposed to merely its effects, existed after the
statute became applicable to the city.
Accordingly there is no merit in the city’s contention
that the $2,000 award to Ms. Protas should be set aside.
Vi.
The city’s last two points of argument are related to
one another and may be combined for the purpose of our
discussion. The city argues, first, that the district court
employed the wrong test of equivalency with respect to
the clerical class, and that if the correct test had been
= there would have been no liability as to that
class, because the men’s jobs and the women’s jobs were
not equal in work content; and, second, that in any event
women were included in that class and awarded
damages without a sufficient showing that they had per-
formed work substantially equa! to that of yard clerks."
1 The district court’s findings of equal work and disparate
pay for men and women with respect to the custodial class are
not challenged by the city. Nor does the city contend that any
persons were erroneously included in the custodial class.
—39a—
A.
The city argues that the work of the women was not
equal in “job content” to that of the men, as if something
more is required than the statutorily required showing
that the jobs demanded substantially equal skill, effort,
and responsibility and were performed under similar
working conditions. 29 U.S.C. § 206(d). There is no
separate job-content standard, at least in this circuit,
although job-content is of course relevant to the
statutory criteria just stated.
When a claim of unequal pay for substantially equal
work is asserted under both the Equal Pay Act and Ti-
tle VII, the same — standards apply to both legal
theories supporting the claim. E.g., Orr v. Frank R.
MacNeill & Son, Inc., 511 F.2d 166, 170-71 (5th Cir.),
cert. denied, 423 U.S. 865 (1975). The work need not be
identical but only substantially equal. Shultz v. Wheaton
Glass Co., 421 F.2d 259 (3d Cir.), cert. denied, 398 US.
905 (1970). It is sufficient if “the skill, effort, respon-
sibility and working conditions of the two different types
of jobs are Wy cy | gra Marshall v. Building
Maintenance Corp., 587 F.2d 567, 569 (2d Cir. 1978).!2 In
determining substantial equality, “[h]igher pay is not
related to extra duties when ... Glualified female
employees are not given the opportunity to do the extra
12 As the regulations adopted under the Equal Pay Act state,
In determining whether differences in job content are sub-
stantial in order to establish whether or not employees are
performing equal work within the meaning of the Act, the
amounts of time which employees spend in the perfor-
mance of different duties are not the sole criteria. It is
also moceuneey to consider the degree of difference in
terms of skill, effort, and responsibility... . Similarly,
the | gioam’s peney of jobs on different machines or equip-
ment would not necessarily result in a determination that
the work so performed is unequal... Likewise, the fact
that jobs are performed in different departments or
locations within the establishment would not necessaril
be sufficient to demonstrate that unequal work is involv
where the equal pay standard also applies.
29 C.F.R. § 800.123.
—40a—
work.” Brennan v. Prince William Hosp. Corp., 503 F.2d
ie (4th Cir. 1974), cert. denied, 420 U.S. 972
'n point in this case before us is Judge Hastings’ opin-
ion for this court in Hodgson v. Miller Brewing Co., 457
F.2d 221 (7th Cir. 1972), a case that neither party has
cited in briefs or oral argument before us and that does
not appear to have been called to the attention of the dis-
trict court. The work to be compared in Miller was the
work of laboratory technicians in the Analytical
Laboratory, which consisted primarily of conducting
chemical tests on beer and recording and tabulating the
results, and the work of laboratory technicians in the
Material Quality Control Laboratory, which consisted
primarily of regain and analyzing materials in con-
tainers for beer and, to a limited degree, of analyzing
beer and air in bottles taken from the assembly line."
8 The Ninth Circuit has recently held that even though the
work is not substantially equal, an action may lie for dis-
criminatory compensation under Title VII. Gu v. Cow
of Washington, 602 F.2d 882, 888-91 Bae Cir. 1979). We n
not be concerned with the Gunther distinction here, because
this case was tried on an equal work theory and the clerical
class was defined accordingly by the district court. The class
was defined as those women employees of the ony of
Water and Sewers “who do and have done .. . the same or
substantially the same work as yard clerks.” (App. 31.) In the
final decree the latter phrase was changed to “the same or
substantially similar work as. . , yard clerks,” pp. 20), but
we take it no change in meaning was inten since the
earlier formulation was used at the hearings to determine
membership in the class. The standard to be satisfied,
therefore, is equal work.
4 It appears from the opinion and from the a aay filed in
this case that the work performed in the Analytical
Laboratory consisted of tests different from those which made
up the work of MQC. The lab technicians in Analytical
analyzed and measured the chemical and physical properties
and characteristics of the raw materials used in the manufac-
ture of beer, beer in the process of manufacture, packaged
beer, and the beer of Miller’s competitiors, recorded the
results of these tests on printed forms, and computed statistics
(Footnote continued on following page)
—4la—
The court affirmed the district court’s determination
that the laboratory technicians’ jobs in the two
laboratories were equal for purposes of the Equal Pay
Act. 457 F.2d at 224, 225.5 In rejecting the argument
that the work in the two labs was not equal because it
was not identical, the court said,
Miller argues that if we find the jobs in
Analytical and MQC to be equal we are engaged in
job peng: | rather than determining whether the
jobs are the same. We agree that the Equal Pay Act
does not authorize courts to equalize wages merely
because they find that two substantially different
jobs are worth the same monetarily to the employer
and therefore should be paid the same wages.
However, “[t]here is evidence that Congress intend-
ed that jobs of the same or closely related character
should be compared in applying the equal pay for
equal work standard (Daily Congressional Record,
House, May 23, 1963, pp. 8686, 8698). Jobs that re-
quire equal skill, effort, and responsibility in their
performance within the meaning of the Act are
usually not identical in every respect (Daily Con-
gressional Record, Senate, May 28, 19638, p. 9219).”
29 C.F.R. § 800.120. “Application of the equal pay
standard is not dependent on job classifications or
titles but depends rather on actual job requirements
and performance.” 29 C.F.R. § 800.121. See also
Shultz v. Wheaton Glass Company, 3 Cir., 421 F.2d
4 continued
based on the information in these forms and forms showin
the results of tests in the Packaging Laboratory, of whic
MQC was a part. The lab technicians in MQC analyzed,
measured and checked the containers used in packaging beer
and to a limited degree the beer and the air found in bottles
and cans of beer taken from the assembly line. 457 F.2d at
223, 224; Appendix in Nos. 18560, 18929, Sept. Term 1971,
Vol. I, pp. 54-69, 72-82, and Vol. II, pp. 573, 574.
16 In a footnote the court held “insubstantial” the “differences
inted to by Miller, such as physical effort, different tests,
[and] different duties and responsibilities.” 457 F.2d at 225
n.8. See note 14 supra.
—42a—
259, 265 (1970), cert. denied, 398 U.S. 905, 90 S.Ct.
1696, 26 L.Ed.2d 64.
Id. at 227.
The principle to be deduced from the Miller case is
that in determining the issue of job equality under the
Equal Pay Act, the subjects to which the workers apply
their work techniques need not be the same so long as
the techniques are essentially the same. The common
denominator in Miller was that the work in the two
laboratories was the lab technician’s work of perform-
ing, and recording and tabulating the results of, scien-
tific tests by standardized procedures that could be
taught by demonstration. Even though the tests were
different, those in one lab —_ chemical and those
in the other a mixture of physical and chemical, the
basic work skills that were required for each were es-
sentially the same.
Applying the teaching of Miller to the case at bar, the
uestion to be decided in comparing two jobs is whether
they involve applying the same kinds of clerical tech-
eo ay and procedures, demand substantially equal skill,
effort, and responsibility, and are performed under
similar working conditions. It is not necessary that the
subjects to which the techniques and procedures were
applied be the same.
B.
Our review of the provisions of the decree relating to
the clerical class is made diffucult by the absence of
specific findings of fact concerning the work of yard
clerks or the work of women clerks. As to yard clerks,
all we have are the oral remarks of the judge at the time
he announced his decision on the liability phase of the
case. These remarks, agen in form, are add
to the issue of whether yard clerks did physical labor.
The judge concluded that most of them did not, but he
did not make specific findings as to what yard clerks
did do. This omission was called to the court’s attention
by counsel for plaintiffs:
—43a—
Your Honor, I think when you made your findings
of fact, you did not make any specific findings with
respect to the job duties that — clerks actually
perform, and we have been making—we have made
a decision between ourselves about what the yard
clerks testified to. And I would just ask that that he
incorporated into Your Honor’s findings in written
form, and I will give you a list after we are
through.
The court responded that he would not make any
written findings but would supplement what he had
already said on the question of yard clerks’ duties. [Tr.
2-8-78 at 27-28.] We do not find that he ever did so. Ac-
cordingly, we are in the same position as plaintiffs’
counsel. We are required to draw our own conclusions
from the evidence as to the nature of the work per-
formed by yard clerks without the benefit of specific
findings by the district court.
Similarly, there are no written findings and no
——— and detailed oral findings as to the nature of
the work performed by each woman or group of women
doing the same work who were included in the class.
The judge ruled some in and some out, sometimes with
an explanation sometimes without. Other women were
included by conditional stipulation, but the terms of the
condition are unclear in view of the absence of findings
as to what yard clerks do.
A judge’s oral findings of fact included in the trial
transcript are often sufficient in relatively simple cases
in which factual detail is not important. Here, however,
factual detail is important and the oral findings are
simply inadequate to enable us to make the factual com-
parison we are required to make. To have a basis for
such a comparison, we would first be required to make
our own findings of fact as to the details of the work
performed by the yard clerks who are claimed to have
done the same work as some women clerks for less pay.
We would also be required to make our own findings
concerning the work of each of the women or groups of
women doing like work who were found to have per-
formed the same work as yard clerks for less pay. We
—44a—
are not equipped to make such findings. Despite our
respect for the able district judge, we are unable to ap-
prove this aspect of the judgment on the strength of
generalized findings of the kind before us and in the
absence of specific findings that would enable us to com-
are the work of the men and the work of the women.
o adequately perform our duty, we need more help
from the district court.
We also note the underlying assumption both in the
definition of the clerical class and throughout the trial
and appeal that it is possible to formulate a single
prototype of a yard clerk’s tasks. The district court, as
we have said, never made findings from which such a
prototype could be formulated, but the assumption of all
participants in the proceeding was that such a prototype
existed. Our examination of the record suggests that
there are more than one prototype. Different yard clerks
seem to perform different kinds of tasks. Our struggle to
fit them all into one mold has not yielded an intellec-
tually satisfying result.
This is not to say that the clerical class members, or
most of them, are not entitled to relief. There is no
magic in titles, and if there are more than one of
yard clerk, each may serve as the model with which one
or more women may be compared for equal work pur-
poses.
Nor do we mean to suggest that minute classifications
based on narrowly defined tasks are required for equal
pay entitlement purposes. Miller teaches that
classifications of yard clerks’ work need not be so
detailed as to separate tasks requiring essentially the
— techniques although addressed to different sub-
jects.
Although we have examined the record in con-
siderable detail in our search for fragments of findings
and in an effort to understand the parties arguments,
and on the basis of that examination might with some
confidence make findings with respect to at least some
class members, make comparisons based thereon, and
affirm as to those members on the basis of those com-
—45a—
arisons, we have resisted the temptation to do so.' It is
or the district court in the first instance to find the
facts and state its conclusions of law thereon. Fed. R.
Civ. P. 52(a).
We therefore vacate those portions of the judgment
and remand the case for further proceedings. On re-
mand the court should make written findings as to the
work done by the different kinds of yard clerks. It
should then make written findings as to the work done
by each member of the clerical class and the equivalen-
cy thereof with the work done by one or more of the
kinds of yard clerks and state appropriate conclusions of
law. Also the court should enter an appropriate
supplemental judgment.
In carrying out the foregoing, the court may require
the parties to attempt to stipulate with respect to the
facts, insofar as possible. The court may also require the
laintiffs, or both sides, to submit ~o findings of
act, as well as conclusions of law. Finally, the court
may use the assistance of a magistrate to the extent ap-
propriate.
The judgment is vacated with respect to the clerical
class and the case is remanded to the district court for
further proceedings with respect to that class in confor-
mity with this order. In all other respects, the judgment
is affirmed.
Each side shall bear its own costs on appeal.
16 We do make one ruling on a point raised in the city’s
clerical class argument. Assuming Eleanor Protas’ work to
have been substantially equal to that of a yard clerk protot
up to the time she was the victim of retaliation for filing her
complaint concerning unequal pay, the fact that she did not
do equal work thereafter ause of the retaliation does not
preclude an award of damages based on unequal pay. She
retained the same job title and pay and, as the judge found,
was merely assigned to other tasks for the purpose of harass-
ment. We hold that she could not be deprived of her right to
equal pay for equal work by wrongfully depriving her of the
equal work.
—46a—
Supplemental Opinion Of the United States
Court Of Appeals For The Seventh Circuit
No. 78-2652
NATIONAL ORGANIZATION FOR WOMEN, SUSIE BATES,
MATTIE SCOTT, ODESSA GATES, VERA SANFORD, and
ELEANOR PROTAS, individually and on behalf of ail
others similarly situated,
Plaintiffs-Appellees,
v.
City OF CHICAGO, a municipal corporation,
Defendant-A ppellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 74 C 3365—John F. Grady, Judge.
DECIDED SEPTEMBER 10, 1980
Before SPRECHER, Circuit Judge, and WISDOM, Senior
Circuit Judge.*
ORDER
The Court’s April 29, 1980 Circuit Rule 35 order is
modified as follows:
* The Honorable John Minor Wisdom, Senior Circuit Judge
of the United States Court of Appeals for the Fifth Circuit, is
sitting by designation.
—47a—
Page 2, the last line of 71:
The words “Sewer Division” should be changed to
read “Water Purification Division.”
Page 8, line 5 of the third full 1:
The words “the Department’s Sewer Division”
should be changed to read “any division of the
Department.”
Page 9, line 5 of the first full 7:
The words “the Sewer Division” should be changed
to read “other divisions of the Department.”
Page 9, line 6 of the second full 1:
The words “the Sewer Division” should be changed
to read “any division of the Department.”
Page 9, line 4 of the third full 1:
The words “Sewer Division” should be changed to
read “Water Purification Division.”
Page 10, line 8 of the first full {:
The words “the Sewer Division” should be changed
to read “divisions of the Department outside the
Water Distribution Division.”
On consideration of the petition for rehearing and
suggestion for rehearing in banc filed in the above-
entitled cause by defendant-appellant, no judge in active
service has requested a vote thereon, and all of the
judges on the original panel have voted to deny a rehear-
ing. Accordingly,
_ It Is ORDERED that the aforesaid petition for rehear-
ing be, and the same is hereby, DENIED.
—48a—
CONSTITUTIONAL PROVISIONS
AND STATUTES INVOLVED
Fourteenth Amendment To The
United States Constitution
* * *
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal
protection of the laws.
* * *
United States Code, Title 29, § 206(d)(1)
No employer having employees subject to any
provisions of this section shall discriminate, within any
establishment in which such employees are employed,
between employees on the basis of sex by paying wages
to employees in such establishment at a rate less than
the rate at which he pays wages to employees of the op-
posite sex in such establishment for equal work on jobs
the performance of which requires equal skill, effort,
and responsibility, and which are performed under
similar working conditions, except where such payment
is made pursuant to (1) a seniority system; (ii) a merit
system; (iii) a system which measures earnings by quan-
tity or quality of production; or (iv) a differential based
on any other factor other than sex: Provided, That an
employer who is paying a wage rate differential in viola-
tion of this subsection shall not, in order to comply with
the provisions of this subsection, reduce the wage rate of
any employee.
United States Code, Title 42, § 1983
Every person who, under color of any statute, or-
dinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes
to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
—49a—
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party in-
jured in an action at law, suit in equity, or other proper
proceeding for redress. For the purposes of this section,
any Act of Congress applicable exclusively to the Dis-
trict of Columbia shall be considered to be a statute of
the District of Columbia.
United States Code, Title 42, § 2000e-2
(a) It shall be an unlawful employment practice for
an employer—
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or
national origin;
* * *
(h) Notwithstanding any other provision of this sub-
chapter, it shall not be an unlawful employment practice
for an employer to apply different standards of compen-
sation, or different terms, conditions, or privileges of
employment pursuant to a bona fide seniority or merit
system, or a system which measures earnings by quanti-
ty or quality of production or to employees who work in
different locations, provided that such differences are
not the result of an intention to discriminate because of
race, color, religion, sex, or national origin, nor shall it
be an unlawful employment practice for an employer to
give and to act upon the results of any professionally
developed ability test provided that such test, its ad-
ministration or action upon the results is not designed,
intended or used to discriminate because of race, color,
religion, sex or national origin. It shall not be an unlaw-
ful employment practice under this subchapter for any
employer to differentiate upon the basis of sex in deter-
mining the amount of the wages or compensation paid
or to be paid to employees of such employer if such
differentiation is authorized by the provisions of section
206(d) of Title 29.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.