wage rate differentials which are based on sex; nothing in the equal pay provisions is intended to prohibit differences in wage rates that are based not at all on sex but wholly on other factors. (See S. Rept. No. 176, 88th Cong. 1st sess., p. 4; H. Rept. No. 309, 88th Cong. 1st sess., p. 2.)

Section 800.120.-Effect of differences between jobs in general.

There is evidence that Congress intended 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 require equal skill, effort, and responsibility in their performance within the meaning of the Act are usually not identical in every respect (Daily Congressional Record, Senate, May 28, 1963, p. 9219). Congress did not intend that inconsequential differences in job content would be a valid excuse for payment of a lower wage to an employee of one sex than to an employee of the opposite sex if the two are performing equal work on essentially the same jobs in the same establishment.

It will be remembered in this connection that the National War Labor Board (to the experience of which attention is directed in the Senate and House Committee Reports) developed a policy of ignoring inconsequential differences in job content in administering equal pay for equal work provisions (Brown & Sharp Manufacturing Co. Case No. 2228-D, Sept. 25, 1942). On the other hand, it is clear that Congress did not intend to apply the equal pay standard to jobs substantially differing in their terms and conditions. Thus, the question of whether a female bookkeeper should be paid as much as a male file clerk required to perform a substantially different job is outside the purview of the equal pay provisions. It is also clear that the equal pay standard is not to be applied where only men are employed in the establishment in one job and only women are employed in a dissimilar job. For example, the standard would not apply where only women are employed in clerk typist positions and only men are employed in jobs as administrative secretaries if the latter really require substantially different duties. Section 800.121.-Job content controlling.

Application of the equal pay standard is not dependent on job classifications or titles but de

pends rather on actual job requirements and performance. For example, the fact that jobs performed by male and female employees may have the same total point value under an evaluation system in use by the employer does not in itself mean that the jobs concerned are equal according to the terms of the statute. Conversely, although the point values allocated to jobs may add up to unequal totals, it does not necessarily follow that the work being performed in such jobs is unequal when the statutory tests of the equal pay standard are applied. Job titles are frequently of such a general nature as to provide very little guidance in determining the application of the equal pay standard. For example, the job title "clerk" may be applied to employees who perform a variety of duties so dissimilar as to place many of them beyond the scope of comparison under the statute. Similarly, jobs included under the title "stock clerk" may include an employee of one sex who spends all or most of his working hours in shifting and moving goods in the establishment whereas another employee, of the opposite sex, may also be described as a "stock clerk" but be engaged entirely in checking inventory. Clearly, the equal pay standard would not apply where jobs require such substantially different duties, even though the job titles are identical. In other situations, including those which exist in the case of jobs identified by the general title "retail clerks", the facts may show that equal skill, effort, and responsibility are required in the jobs of male and female employees notwithstanding they are engaged in selling different kinds of merchandise. In all such situations, the application of the equal pay standard will have to be determined by applying the terms of the statute to the full factual situation.

Section 800.122.-General guides for testing equality of jobs.

(a) What constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined. In interpreting these key terms of the statute, the broad remedial purpose of the law must be taken into consideration. The terms are considered to constitute three separate tests, each of which must be met in order for the equal pay standard to apply. In applying the tests it should be kept in mind that "equal" does not mean "identical"

ments, and unless a showing can be made by the employer that the sale of one article requires such a higher degree of skill or effort than the sale of another article as to render the equal pay standard inapplicable, it will be assumed that the salesmen and saleswomen concerned are performing equal work. Although the equal pay provisions apply on an establishment basis and the jobs to be compared are those in the particular establishment, all relevant evidence that may demonstrate whether the skill, effort, and responsibility required in the jobs at the particular establishment are equal should be considered, whether this relates to the performance of like jobs in other establishments

or not.

Section 800.124.-Comparing "exempt" and "nonexempt" jobs.

Situations sometimes arise in which it is alleged that lower wages are being paid, in violation of the Act, to a nonexempt employee than to an exempt employee of the opposite sex for equal work on jobs said to be equal within the meaning of the Act. Usually it is necessary in such a case to scrutinize carefully the respective job requirements, working conditions, and pay arrangements before it is possible to reach an informed judgment as to the existence of any violation of the Act. To illustrate, suppose it is alleged that employees of opposite sexes are performing equal work within the meaning of the Act and that a wage discrimination on account of sex exists because one of such employees, but not the other, is paid the minimum compensation on a salary basis which is required for exemption as a bona fide executive or administrative employee and is treated by the employer as such an exempt employee under section 13(a)(1) of the

Act and the regulations in 29 CFR Part 541. In such a case, regard must be had to the fact that the regulations define an employee employed in a bona fide executive or administrative capacity in terms of the coexistence of a number of factors, only one of which is the receipt of compensation in a specified minimum amount on a salary basis. The existence of all these factors must be verified to determine whether the employer is correct in treating the employee who receives such salary as exempt. Regard must also be had to the fact that an employee who qualifies for exemption, because all the factors required by the regulations coexist, may be required to work as many hours as the employer may be able to persuade him to work for the stated salary, without any necessity of compliance by the employer with the minimum wage, equal pay or overtime compensation requirements of the Act. This is important because the fact that another employee of the opposite sex doing similar work does not receive the salary requisite for an exemption under the regulations would not in all cases mean that such employee is being paid at a lower rate of pay. In fact, because the nonexempt employee must receive at least the minimum wage for every hour worked and the prescribed additional compensation at the specified multiple of the regular rate for every such hour in excess of the applicable maximum workweek, it is possible, depending on the length of the workweek, that the pay in the nonexempt job may exceed the salary paid in the exempt job for the identical number of hours worked. For these reasons, a comparison of exempt and nonexempt jobs requires careful examination of all the facts and does not lend itself to the application of any general rules.

Section 800.125.-Jobs requiring equal skill in performance.

The jobs to which the equal pay standard is applicable are jobs requiring equal skill in their performance. Where the amount or degree of skill required to perform one job is substantially greater than that required to perform another job, the equal pay standard cannot apply even though the jobs may be equal in all other respects. Skill includes consideration of such factors as experience,

training, education, and ability. It must be measured in terms of the performance requirements of the job. If an employee must have essentially the same skill in order to perform either of two jobs, the jobs will qualify under the Act as jobs the performance of which requires equal skill, even though the employee in one of the jobs may not exercise the required skill as frequently or during as much of his working time as the employee in the other job. Possession of a skill not needed to meet require

ments of the job cannot be considered in making a determination regarding equality of skill. The efficiency of the employee's performance in the job is not in itself an appropriate factor to consider in evaluating skill.

Section 800.126.-Comparing skill requirements of jobs.

As a simple illustration of the principle of equal skill, suppose that a man and a woman have jobs classified as typists. Both jobs require them to spend two-thirds of their working time in typing and related activities, such as proofreading and filing, and the remaining one-third in diversified tasks, not necessarily the same. Since there is no difference in the skills required for most of their work, whether or not these jobs require equal skill in performance will depend upon the nature of the work the employees must actually perform during this latter period to meet the requirements of the jobs. If it happens that the man, during

the remaining one-third of the time, spends twice as much time operating a calculator as does the woman who prefers and is allowed to do most of the copying work required in the office, this would not preclude a conclusion that the performance of the two jobs requires equal skill if there is actually no distinction in the performance requirements of such jobs so far as the skills utilized in these tasks are concerned. Even if the man were required to do all of the calculating work in order to perform his job, it is not at all apparent that the jobs would require substantially different degrees of skill unless it should appear that operation of that calculator requires more training and can command a higher wage than the typing and related work performed by both the man and the woman, and that the work required to be done by the woman in the remaining one-third of the time requires less training and is recognized as commanding a lower wage whether performed by a

man or a woman.

Section 800.127.-Jobs requiring equal effort in performance.

The jobs to which the equal pay standard is applicable are jobs that require equal effort to perform. Where substantial differences exist in the amount or degree of effort required to be expended in the performance of jobs, the equal pay standard cannot apply even though the jobs may be equal in all other respects. Effort is concerned with the measurement of the physical or mental exertion needed for the performance of a job. Where jobs are otherwise equal under the Act, and there is no substantial difference in the amount or degree of effort which must be expended in performing the jobs under comparison, the jobs may require equal effort in their performance even though the effort may be exerted in different ways on the two jobs. Differences only in the kind of effort required to be expended in such a situation will not justify wage differentials.

Section 800.128.-Comparing effort requirements of jobs.

To illustrate the principle of equal effort exerted in different ways, suppose that a male checker employed by a supermarket is required to spend

part of his time carrying out heavy packages or replacing stock involving the lifting of heavy items whereas a female checker is required to devote an equal degree of effort during a similar portion of her time to performing fill-in work requiring greater dexterity-such as rearranging displays of spices or other small items. The difference in kind of effort required of the employees does not appear to make their efforts unequal in any respect which would justify a wage differential, where such differences in kind of effort expended to perform the job are not ordinarily considered a factor in setting wage levels. Further, the occasional or sporadic performance of an activity which may require extra physical or mental exertion is not alone sufficient to justify a finding of unequal effort. Suppose, however, that men and women are working side by side on a line assembling parts. Suppose further that one of the men who performs the operations at the end of the line must also lift the assembly, as he completes his part of it, and places it on a waiting pallet. In such a situation, a wage rate differential might be justified for the person (but only for the person) who is required to expend the extra effort in the performance of his job, provided that the extra

effort so expended is substantial and is performed over a considerable portion of the work cycle. However, a serious question would be raised about the bona fides of a wage differential if it is paid to a male employee who is otherwise performing equal work with female employees on the basis that the male is required to do some heavy lifting, unless a similar distinction in wage rates is made in the establishment as between male employees only where some do heavy lifting and others do not.

In general, a wage rate differential based on differences in the degree or amount of effort required for performance of jobs must be applied uniformly to men and women. For example, if all women and some of the men performing a particular type of job do not perform heavy lifting, and some men do, payment of a higher wage rate to all of the men than to the women would constitute a prohibited wage rate differential if the equal pay provisions otherwise apply.

Section 800.129.-Jobs requiring equal responsibility in performance.

The jobs to which the equal pay standard applies are jobs in the performance of which equal responsibility is required. Responsibility is concerned with the degree of accountability required in the performance of the job, with emphasis on the importance of the job obligation. Differences in the degree of responsibility required in the performance of otherwise equal jobs cover a wide variety of situations. The following illustrations in section 800.130, which are by no means exhaustive, may suggest the nature or degree of differences in responsibility which will constitute unequal work. Section 800.130.-Comparing responsibility requirements of jobs.

(a) There are many situations where one employee of a group performing jobs which are equal in other respects is required from time to time to assume supervisory duties for reasons such as the absence of the regular supervisor. Suppose, for instance, that it is the employer's practice to pay a higher wage rate to such a "relief" supervisor with the understanding that during the intervals in which he performs supervisory duties he is in training for a supervisory position. In such a situation, payment of the higher rate to him might well be based solely on the additional responsibility required to perform his job and the equal pay provisions would not require the same rates to be paid to an employee of the opposite sex in the group who does not have an equal responsibility. There would clearly be no question concerning such a wage rate differential if the employer pays the higher rate to both men and women who are

called upon from time to time to assume such supervisory responsibilities.

(b) Other differences in responsibilities of employees in generally similar jobs may require similar conclusions. Sales clerks, for example, who are engaged primarily in selling identical or similar merchandise may be given different responsibilities. Suppose that one employee of such a group (who may be either a man or a woman) is authorized and required to determine whether to accept payment for purchases by personal checks of customers. The person having this authority to accept personal checks may have a considerable additional degree of responsibility which may materially affect the business operations of the employer. In this situation, payment of a higher wage rate to this employee would be permissible.

(c) On the other hand, there are situations where one employee of the group may be given some minor responsibility which the others do not have (e.g., turning out the lights in his department at the end of the business day) but which is not of sufficient consequence or importance to justify a finding of unequal responsibility. As another example of a minor difference in responsibility, suppose that office employees of both sexes work in jobs essentially alike but at certain intervals a male and female employee performing otherwise equal work within the meaning of the statute are responsible for the office payroll. One of these employees may be assigned the job of checking time cards and compiling the payroll list. The other, of the opposite sex, may be required to make out paychecks, or divide up cash and put the proper amounts into pay envelopes after drawing a payroll check. In such circumstances, although some of the employees' duties are occasionally dissimilar, the dif