MAPI IR-55 The meaning of the Bennett Amendment is clearly equivocal and it is not at all certain Congress had an understanding of the amendment's intended meaning nor did the EEOC shed much light in the early going. In fact, EEOC appeared to take conflicting positions in terms of its 1965 guidelines versus its opinion letters. When the 1965 guidelines were revised by EEOC in 1972, the matter was in effect further confused./54 Thus, it was easy to see why the courts--at least in the early going--rejected gender-based wage discrimination claims for admittedly unequal work. The courts tended to uniformally treat the claims, albeit under Title VII, as governed by the provisions of the Equal Pay Act, i.e., the two statutes must be construed in pari materia./55 The turn-around. --Some recent court decisions have, however, modified that position. In Gunther v. County of Washington, /56 the Ninth Circuit held that Title VII encompassed the plaintiffs' claim of genderbased wage discrimination even in the absence of a showing of substantially equal work. The case involved a claim by four women, employed as matrons at the Washington County, Oregon jail that they had been denied equal pay for substantially equal work, i.e., equal to the work of male correction officers and deputy sheriffs. The matrons guarded female inmates and spent a significant portion of their time performing clerical tasks. In contrast, male corrections officers and deputy sheriffs guarded many more prisoners but performed only minimal clerical duties. In February 1973 the matrons earned $143 to $272 per month less than the male corrections officers and deputy sheriffs. Losing in the lower court, the matrons appealed and the Ninth Circuit ruled that they should be allowed to prove that some of the wage discrepancy between the two groups was due to sex discrimination. The court's position was that where employees raise equal work claims, the standards of the Equal Pay Act apply, but that the Bennett Amendment does not preclude them from suing to protest other acts of discriminatory compensation. In a supplementary opinion, the court added that "a plaintiff is not precluded from establishing sex-based wage discrimination under some theory compatible with Title VII." It added the caveat, however, that "because a comparable work standard cannot be substituted for an equal work standard, evidence of comparable worth will not alone be sufficient to establish a prima facie case." 54/ The 1972 guideline omits any reference to the equal work formula of the Equal Pay Act and merely states that because of the Bennett Amendment a defense based on the Equal Pay Act may be raised in a Title VII proceeding. Thus, there may be an implied rejection of the 1965 guideline but not an express one. 55/ See, e.g., Orr v. Frank R. MacNeil & Son, Inc., 511 F.2d 166 (5th Cir. 1975); Ammons v. Zia Co., 448 F.2d 177 (10th Cir. 1971); and Howard v. Ward County, 418 F. Supp. 493 (D.N.D. 1976). 56/ 602 F.2d 885 (9th Cir. 1979). ΜΑΡΙ IR-55 The Tenth Circuit also appears to be leaning in the same direction, although it has reached apparently conflicting results in two cases. In Fitzgerald v. Sirloin Stockade,/57 the court affirmed a lower court decision that the Equal Pay Act standards did not apply to the claim of sex-based wage discrimination brought by a female employee who assumed a substantial portion of a male advertising manager's duties, even though she was not qualified to perform all of his duties. The court ruled that the Bennett Amendment did not prohibit this claim "since this is not a case in which discriminatory activity is specifically sanctioned under the Equal Pay Act exceptions and liability is, nonetheless, sought under Title VII." The same court, however, ruled in Lemons v. City of Denver /58 that a city that paid its nurses comparably to noncity nurses did not violate Title VII despite the nurses' claim that they were paid less than other city employees with whom they should be compared. Of perhaps most interest, the court ruled on the basis that the trial court had found that "the city draws no distinction between male and female employees." More generally, it opined that "to establish a case of discrimination under Title VII, one must prove a differential in pay based on sex for performing 'equal' work. In short, the Lemons case did not allege a discriminatory classification system as was the claim in the Gunther case./59 The Third Circuit in IUE v. Westinghouse Electric Corporation /60 reversed the judgment of the trial court and permitted women who alleged that the employer's present wage structure continued an earlier discriminatory wage policy to maintain a claim under Title VII. More specifically, the plaintiffs alleged the company's wage structure was derived from one established in the late 1930s at which time the job classifications were allegedly segregated by sex. The plaintiffs contended that the new wage scale embodied the deliberately discriminatory policy of the prior plan. The court allowed the action even though the women admitted they would not prove that the jobs filled predominantly by women were the same as the jobs performed predominantly by men. The court held that the Bennett Amendment did not authorize "the explicit discrimination in compensation" the employer allegedly practiced. A dissenting judge offered the following in part: The majority opinion describes a case in which sex-based wage discrimination and liability under 57 22 FEP Cases 262 (10th Cir. 1980). 58/ 22 FEP Cases 959 (10th Cir. 1980). 59/ It is also interesting to note how the comparable worth theory stirred the trial court which stated that the comparable worth cause of action is "pregnant with the possibility of disrupting the entire economic system of the United States"; 17 FEP Cases 906, 907 (D. Colo. 1978). 60/ 23 FEP Cases 588 (3rd Cir. 1980). ΜΑΡΙ IR-55 [Title VII] will be established by evidence that an Since I believe Congress adopted the Bennett Amendment wage discrimination claims under Title VII with One other case bears noting. Although a district court opinion, the court in Gerlach v. Michigan Bell Tel. Co. /61 appears to be seeking a middle-ground position. In this case, the plaintiffs alleged that the employer had classified their position as clerical because it was held predominantly by women and then had underpaid them because the position was clerical. The charge was also made that the employer had undervalued their work even though this work and that of the employer's male employees were of equal or comparable worth. The court held that neither the Equal Pay Act nor the Bennett Amendment can be construed to authorize a discriminatory classification scheme. Thus, the claim of a discriminatory classification approach is actionable under Title VII. The court went on to indicate that underevaluation by itself does not violate Title VII. More fully, the court offered the view that "[a]lthough comparable worth/underevaluation may be relevant evidence under a theory of discrimination, it will not establish a cause of action for sex-based discrimination. Where to next?--The U.S. Supreme Court has agreed to hear the appeal in the Gunther case/62 and may well take up the Westinghouse decision also. Whether or not a Supreme Court ruling will be definitive is not clear. Part of the problem is that there was extensive congressional confusion over the meaning of the Bennett Amendment so it is difficult to boldly take either a "broad" or "narrow" reading of the amendment. Further, the EEOC--at least until recently--has pressed the view that Title VII is applicable to situations where the wage rates for jobs held predominantly by women were set lower than the wage rates for jobs held predominantly by men. Further, the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor has indicated in recently issued guidelines on sex discrimination that "compensation practices with respect to any jobs where males or females are concentrated (i.e., the members of the opposite sex are underutilized) will be scrutinized closely to assure that 61/ 24 FEP Cases 69 (E.D. Mich. 1980). 62/ 49 LW 3321 (Nov. 3, 1980). ΜΑΡΙ IR-55 sex has played no role in setting of levels of pay."/63 Thus, the compliance agencies appear to be committed to establishing a "narrow" interpretation of the Bennett Amendment. One thing is certain. Anything short of an absolute limitation (legislative or judicial) on the scope of Title VII to the Equal Pay Act's equal work standard will leave room for a 'comparative worth" argument as part of a claim of gender-based wage discrimination. This then is one more area where the employer must wait and see to find out the eventual reach of the law. Preferential Treatment: The Any employer, even one following neutral employment policies, may find itself in violation of one or more nondiscrimination obligations if its employment practices, although fair in form, are discriminatory in operation. Indeed, regardless of the employer's intent, a prima facie case may be made if it can be shown that employment practices have a statistically significant adverse effect on some protected class./64 This underrepresentation theory--deadly in its own right--has particularly troublesome overtones for a federal contractor subject to Executive Order No. 11246 and the laws/65 mandating "affirmative action." For those employers who must implement plans that include preferential treatment of minorities, women, the handicapped, and Vietnam-era veterans, the liability exposure is much greater. Such employers are exposed to "reverse discrimination"/66 and breach of contract suits/67 brought by the nonpreferred "victims" of their plans as well as to the sanctions under its government contract obligations for inadequate plans. This "dilemma" is not new; it has been a part of the scene for a number of years. However, three facets add to the prospects for future 63/ Federal Register, December 30, 1980, at p. 86250. These final regulations were withdrawn on January 28, 1981. The OFCCP has, however, indicated that it is pressing the "comparative worth" issue in at least two cases still in process administratively. 64/ See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) (Back-Pay Relief for Employment Discrimination and Interpretation of Law on Employee Testing: A Landmark U.S. Supreme Court Decision in Albemarle Paper Company v. Moody, MAPI). 65/ See, e.g., Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 and Section 503 of the Rehabilitation Act of 1973. 66/ See, e.g., McAleer v. American Tel. & Tel. Co., 416 F. Supp. 435 (D.D.C. 1976) (money damages awarded to male denied promotion pursuant to consent decree that provided for promotion of less senior female as part of remedy for past sex discrimination). 67/ See, e.g., Southbridge Plastics Div. v. Local 759, Int'l. Union of Rubber Workers, 565 F.2d 913 (5th Cir. 1978) (EEOC and employer entered conciliation agreement that provided for use of remedial quotas to determine layoffs; court invalidated plan because contrary to collective bargaining agreement). ! MAPI IR-55 concern. The first is the U.S. Supreme Court's "side door" approval of preferential treatment; the second is the burgeoning challenge to employers of the dictates of the program; and the third is the "backlog" of unresolved rules and issues now before the OFCCP. This memorandum turns to these three facets next. The Supreme Court and "Affirmative Action" Basically, the nondiscrimination obligation is a "color blind" standard and this is the theme of Title VII expressed in terms of equal opportunity. The introduction of Executive Order 11246 and its precursors has led to another approach under a theme of equality of results. The simple question posed by the coexistence of Executive Order 11246 and Title VII is how can race-conscious decision making ever be reconciled with the law that requires race-free policies in all facets of the employment process. Proponents have obviously provided a rationalization for the seeming inconsistency of the two mandates, but until recently the courts had not ruled. The U.S. Supreme Court has now handed down three decisions bearing on this "dilemma" for employers--Bakke,/68 Weber,/69 and Fullilove./70 The net result is that the seeming contradiction has the support of the judiciary. To better appreciate what this means, a brief recap of these three holdings is necessary. In Bakke, the Supreme Court divided the "affirmative action" dispute down the middle by ruling, 5-4, that state educational institutions need not be color blind in confronting the realities of race with "a properly devised admissions program," while striking down, in another 5-4 split, the particular admissions program before it-a program that set aside a specific number of places in which only disadvantaged minorities could compete. Because the decision involved six separate opinions, it is difficult to state unequivocally what the precedential value of the holding is. Nonetheless, in hindsight and in light of the Fullilove holding, it appears possible to conclude that Bakke, at least in terms of Justice Powell's pivotal vote, stands for the proposition that if racial quotas are to be imposed at all, they should be imposed in a deliberate and cautious manner and, probably, by a more broadly accountable body than the Regents of the University of California. If this is a reasonable reading, it means the Court is stressing "process and structure" as independently significant dimensions of constitutional validity under equal protection law, i.e., the fourteenth and fifth amendments./71 Restated, it means that either 68/ Regents of the University of California v. Bakke, 438 U.S. 265 (1978); see MAPI Memorandum G-103, July 28, 1978. 69/ United Steelworkers v. Weber, 443 U.S. 193 (1979); see MAPI Bulletin 5889, July 2, 1979. 70/ Fullilove v. Klutznick, 100 S. Ct. 2758 (1980); see MAPI Memorandum G-120, July 23, 1980. 71/ For a fuller discussion of this analysis, see Tribe, Perspectives on Bakke: Equal Protection, Procedural Fairness or Structural Justice, 92 Harv. L. Rev. 864 (1979). |