# Petition — City of Chicago v. National Organization for Women

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 965

## Text

| ~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

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STATUTES AND CONSTITUTIONAL PROVI-
SE =

—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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0944%3A1. Public record. Not legal advice.