# Petition — Berlitz Schools of Languages of America, Inc. v. Bartelt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0140%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 464 U.S. 915 ## Text R38-loeé a a a No. ..-... WUL 25 1983 IN THE : Supreme Court of the United|States.-. sev work’* claim under Title VII, the plaintiff must allege facts sufficient to establish an Equal Pay Act vi- olation. Second, Berlitz assumes that an Equal Pay Act claim must be based on a comparison between the wage rates of current employees within the establishment. From these premises Berlitz argues that the last day that plaintiffs’ predecessors were ‘‘employees’’ was the last day that a Title VII violation existed. According to Berlitz's theory, plaintiffs had three hundred days from that date to file a charge with the EEOC. We reject Berlitz's alternative argument because it is an irrational distortion of both statutes. This reasoning would lead one to conclude that if the predecessor employee left more than three hundred days before the replacement arrived, the replacement could never file a timely (footnote continued on following page) aw ee C. THE SINGLE ESTABLISHMENT REQUIREMENT The district court also granted summary judgment on the ground that, as a matter of law, the data concerning the salaries of male directors at other Berlitz schools would not establish a violation of Title VII because it did not show that the employer discriminated in the payment of wages to employees within a single establishment, a requirement of an Equal Pay Act violation. See 29 U.S.C. § 206(d)(1976). The premise underlying this ground for dismissal is that a sex-based wage discrimination claim may be brought un- der Title VII only if the evidence supporting the charge would establish a violation of the Equal Pay Act. The Equal Pay Act addresses the problem of discrimination in the pay- ment of wages based on the sex of the employee. It makes it unlawful for employers to pay different wage rates, based on the sex of the employee, to employees in the same es- tablishment who perform equal work. See Corning Glass Works v. Brennan, 417 U.S. 188 (1974).- The coverage of charge with the EEOC. The time would have expired before any vio- lation occurred. We further note that under the Equal Pay Act plaintiffs need not rely solely on a discriminatory wage differential between current employees to establish a violation, but may make comparisons to prior employees. See County of Washington v. Gunther, 452 U.S. 161 (1981) (Rehnquist, J. dissenting) at 179 n.19; id. at 201-02. Thus even if it were necessary for the plaintiffs in this case to meet the criteria of the Equal Pay Act to state a claim under Title VII, a theory we reject, see discussion infra, that requirement has been met here. *The Equal Pay Act was enacted as an amendment to the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19. It provides, in relevant part: 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 opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures — by quantity or quality of production; or (iv) a differential b on any other factor other than sex. 29 U.S.C. § 206(d)(1) a Title VII with respect to discrimination on account of sex is much broader. Title VII makes it an unlawful employment practice for an employer ‘‘to discriminate against any in- dividual with respect to his compensation, terms, condi- tions, or privileges of employment because of such indi- vidual’s .. . sex. . ."’ 42 U.S.C. § 2000e-2(a). We note that the district court decided this case before the Supreme Court’s decision in County of Washington v. Gunther, 452 U.S. 161 (1981) (Rehnquist, J. dissenting), which addressed the relationship of Title VII to the Equal Pay Act. Gunther rejected the assumption upon which the district court dis- missed these actions. In Gunther, the Supreme Court held that plaintiffs, four female prison guards, could bring claims of differential com- pensation under Title VII even though they could not satisfy the equal work standard of the Equal Pay Act. The Court rejected the argument that the Bennett Amendment to Title VII restricted Title VII’s prohibition of sex-based wage dis- crimination claims to claims of ‘equal pay for equal work:’”’ In practical terms, [accepting this argument] means that a woman who is discriminatorily underpaid could ob- tain no relief—no matter how egregious the discrimi- ‘The Bennett Amendment provides: It shall not be an unlawful employment practice under this sub- chapter for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or to be paid to a of such employer if such differentiation is authorized by the provisions of section 206(d) of Title 29 [the Equal Pay Act]. 42 U.S.C. § 2000e-2(h). _— nation might be—unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal re- dress under petitioners’ interpretation. . . . Congress surely did not intend the Bennett Amendment to in- sulate such blatantly discriminatory practices from ju- dicial redress under Title VII. Gunther, 452 U.S. at 178-79. Instead, the Gunther Court interpreted the Bennett Amendment as requiring only the incorporation of the four affirmative defenses of the Equal Pay Act into Title VII.* Thus, when faced with a sex-based wage discrimination claim brought under Title VII, the employer may success- fully defend its action by showing that: (1) the compensation was paid pursuant to a seniority system; or (2) the payments were made pursuant to a merit system; or (3) the compen- sation was paid pursuant to ‘‘a system which measures earn- ings by quantity or quality of production;”’ or (4) the pay- ments were based on any other factor other than sex. 29 U.S.C. § 206(d); see Gunther, 452 U.S. at 168-69. Berlitz argues that the Supreme Court in Gunther did not specifically address claims based on an ‘‘equal pay for equal work’’ theory. When this theory is the vasis for the claim under Title VII, Berlitz argues that the employer's action must constitute an Equal Pay Act violation. Otherwise, the result will be to subvert the scheme of the Equal Pay Act, *The court based its conclusion that the Bennett Amendment did not preclude the plaintiffs’ Title VII claims on: (1) the language of the Bennett Amendment; (2) the legislative history of the adoption of the Amendment, and (3) the remedial purposes of the Equal Pay Act and Title VII. Gunther, 452 U.S. at 168-80. aa, which Congress carefully designed to handle ‘‘equal pay for equal work’’ problems. The point of Gunther, however, is that Title VII's statutory scheme covers claims of sex- based wage discrimination, whether or not those claims also fall under the Equal Pay Act. Berlitz’s view is contrary to the rationale of Gunther and the Supreme Court’s pro- nouncement that courts must ‘‘avoid interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate.’’ Gunther, 452 U.S. at 178. Moreover, contrary to Berlitz’s assertions, the failure to read the ‘‘single establishment” restriction of the Equal Pay Act into Title VII will not result in numerous legal and practical problems nor will it thwart the sound policies of the Equal Pay Act. An Equal Pay Act challenge differs in important respects from an action brought under Title VII. Title VII contains a comprehensive scheme of administrative remedies that must be exhausted before suit is filed. 42 U.S.C. § 2000e-5. No administrative exhaustion is required under the Equal Pay Act. Furthermore, the different statutes provide different rem- edies. Although Title VII authorizes a backpay remedy, under the Equal Pay Act, double back pay awards are au- thorized. Compare 42 U.S.C. § 2000e-5(g) with 29 U.S.C. § 216(b)(Supp. II 1978). The back pay recovery period in many cases will be longer under the Equal Pay Act than under Title VII. Compare 29 U.S.C. § 255 (1976)(employer who commits willful violation is liable for back pay for up to three years before suit is filed) with 42 \'.S.C § 2000e- 5(g) (recovery period limited to two years before date charges filed with the EEOC), For these reasons, we reject Berlitz’s approach. We agree that a comparison of plaintiffs’ salaries with the salaries paid to male directors at other Berlitz schools is not between — oe employees of a ‘single establishment,’’ and hence that Mel- sen and Bartelt would not be able to establish a violation of the Equal Pay Act by relying on this data. But plaintiffs have not brought an action under the Equal Pay Act. Title VII does not contain a ‘single establishment’’ limitation. See Gunther, 452 U.S. at 171. We hold that the evidence of the salaries of male directors at other Berlitz schools, which supports plaintiffs’ sex-based wage discrimination claims, may be introduced to support a claim under Title VII even though it would not support an Equal Pay Act claim. It was error for the district court to grant summary judgment to Berlitz. IV CONCLUSION Plaintiffs’ claims based on a comparison of their salaries with their predecessors’ are not time-barred. Evidence that Berlitz paid lower wages to plaintiffs than to male directors at other Berlitz Schools may be used to establish a sex- based wage discrimination claim under Title VII. We REVERSE the grant of summary judgment to Berlitz and REMAND the case to the district court for further pro- ceedings consistent with this opinion. — MELSEN V. BERLITZ SCHOOLS, No. 81-4287. BARTELT V. BERLITZ SCHOOLS, No. 81-4067. Filed: Feb. 8, 1983. POOLE, Circuit Judge, dissenting. I respectfully dissent for the reason that the claims of sex discrimination were untimely and thus the district court was correct in its grant of summary judgment. The appellants claimed sex discrimination in that they were hired to fill jobs vacated by males and that from the outset they were paid less for the same work. But neither filed charges with the Equal Employment Opportunity Com- ission [sic] within the maximum 300 days as required by Section 706 of Title VII, 42 U.S.C. 2000-S(e). Nothing in this record implicates ‘‘equitable tolling’’ or other reason for this delay. Melsen was first employed by Berlitz in 1968. She re- placed a male Director at the Oakland school in January, 1975, at a rate of compensation lower than that paid her predecessor. But she did not file charges with EEOC until November 14, 1978, nearly four years later. Bartelt replaced a male as Director at the Palo Alto school in July, 1977. She did not file a charge until April 11, 197.., 21 months later. My difference with the majority is obvious. They have neatly skirted the requirement of filing charges within 300 days by an expedient: they hold that if a member of a protected class is hired at a discriminatory wage, that person presumably may wait for years and years before bringing charges because each pay check tendered by the employer constitutes a ‘‘continuing violation’’ of the original act of discrimination. This holding seems to me quite unsupported by logic or policy or anything in the language of Title VII. It does not = = Square with other cases. The majority has successfully re- written the statute without waiting for a tardy Congress. This is troublesome. The view adopted today may seem better than the statutory policy but I do not understand such code updating to be our function. Nor does that view seem to comport with what the Supreme Court has stated in United Air Lines v. Evans, 431 U.S. 553 (1977), where Justice Stevens wrote: A discriminatory act which is not made the basis for a timely charge. Respondent emphasizes the fact that she has alleged a continuing violation. United’s seniority system does indeed have a continuing impact on her pay and fringe benefits. But the emphasis should not be placed on mere continuity. The critical questions is whether any present violation exists. (Emphasis original.) 431 U.S. 558 The majority seeks shelter for this rationale by calling two discrete situations cumulatively a ‘‘policy.’’ These are two separate cases which were not, when challenged on summary judgment, augmented by appropriate evidence sufficient to justify the terminlogy [sic] of ‘‘policy’’ or ‘‘practice’’ as we know those words. But we need not wran- gle over arcane contentions of evidence because it is clear that the majority's position is that each subsequent salary payment as to each single receipient [sic] generates another violation (whether styled ‘‘new’’ or ‘‘further’’ or mere con- tinuum), In whatever form it is wrapped, the holding bends the statute to accomplish a result, on the argument that the Supreme Court has not explicitly said that there is no such thing as continuing violation, One cannot well read the majority or dissent in Mohasco Corp. v. Silver, 447 U.S. 807, (1980), without concluding that basic to Title VII is a purpose of requiring claims to a) on be raised while they are temporally and seasonably fresh. Discrimination claims are committed to administrative pro- cessing in the first instance so that they may be resolved administratively if possible, on the theory that securing the substance of civil rights is the objective rather than pro- tracted and stale litigation. It may well be that enlargement of the time for filing charges, as the majority now sanctions, will prove a salutary event, should it survive. The problem is that we do not write on a clean slate and ours is hot the role of convenient emendation even in support of the most noble of causes. a ae APPENDIX B Order United States Court of Appeals for the Ninth Circuit. Vicki Bartelt, Plaintiff-Appellant, vs. Berlitz Schools of Languages of America, Inc., Defendant-Appellee. No. 81- 4064, D.C. No. C79-1033-RHS. Lydia Melsen, Plaintiff-Appellants, vs. Berlitz Schools of Languages of America, Inc., Defendant-Appellee. No. 81-4287, D.C. No. C80-0104-RHS. Filed: April 28, 1983. Before: GOODWIN, FLETCHER, and POOLE, Circuit Judges. The majority of the panel in the above case has voted to deny the petition for rehearing, and Judges Goodwin and Fletcher have voted to reject the suggestion for rehearing en banc. The full court has been advised of the suggestion for an en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. FRAP 35(b). The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0140%3A1. Public record. Not legal advice.