ference in responsibility involved would not appear to be of a kind that is recognized in wage administration as a significant factor in determining wage rates. Under such circumstances, this

difference would seem insufficient to justify a wage rate differential between the man's and the woman's job if the equal pay provisions otherwise apply.

Section 800.131.-Jobs performed under similar

working conditions.

In order for the equal pay standard to apply, the jobs must be performed under similar working conditions. It should be noted that the statute adopts the flexible standard of similarity as a basis for testing this requirement. In determining whether the requirement is met, a practical judgment is required in the light of whether the differences in working conditions are the kind customarily taken into consideration in setting wage levels. The mere fact that jobs are in different departments of an establishment will not necessarily mean that the jobs are performed under dissimilar working conditions. This may or may not be the

case.

Section 800,132.-Determining similarity of working conditions.

Generally, employees performing jobs requiring equal skill, effort, and responsibility are likely to be performing them under similar working condi

tions. However, in situations where some employees performing work meeting these standards have working conditions substantially different from those required for the performance of other jobs the equal pay principle would not apply. For example, if some sales persons are engaged in selling a product exclusively inside a store and others employed by the same establishment spend a large part of their time selling the same product away from the establishment, the working conditions would be dissimilar. Also, where some employees do repair work exclusively inside a shop while others employed by the shop spend most of their time doing similar repair work in customers' homes, there would not be similarity in working conditions. On the other hand, slight or inconsequential differences in working conditions that are essentially similar would not justify a differential in pay. Such differences are not usually taken into consideration by employers or in collective bargaining in setting wage rates. Sections 800.133-800.139.-[Reserved]

Section 800.140.-The specified exceptions. Section 6(d) (1) of the Act provides three specific exceptions and one broad general exception to its general standard requiring that employees doing equal work be paid equal wages, regardless of sex. Under these exceptions, where it can be established that a differential in pay is the result of a wage payment made pursuant to a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or that the differential is based on any other factor other than sex, the differential is expressly excluded from the statutory prohibition of wage discrimination based on sex. The legislative intent was stated to be that any discrimination based upon any of these exceptions shall be exempted from the operation of the statute. These excep

tions recognize, as do the reports of the legislative committees, that there are factors other than sex that can be used to justify a wage differential, even as between employees of opposite sexes performing equal work on jobs which meet the statutory tests of equal skill, effort, and responsibility, and similar working conditions. (See H. Rept. No. 309, S. Rept. No. 176, 88th Congress 1st sess.) Section 800.141.-Establishing application of an exception.

(a) The facts necessary to establish that a wage differential has a basis specified in any of the foregoing exceptions are peculiarly within the knowledge of the employer. If he relies on the excepting language to exempt a differential in pay from the operation of the equal pay provisions, he will

be expected to show the necessary facts. Thus, such a showing will be required to demonstrate that a payment of wages to employees at a rate less than the rate at which he pays employees of the opposite sex is based on a factor other than sex where it appears that such payments are for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions within the meaning of the statute. After careful examination of the legislative history and the judicial precedents, this is believed to be the most reasonable construction of the law and the one which will be approved by the courts. However, because there is some legislative history that could support a different view, the reasons for reaching the foregoing conclusions are explained in some detail in paragraph (b) of this section.

(b) The legislative history of the Equal Pay Act amendments to the Fair Labor Standards Act includes some statements in the House debate, by a member of the House committee who was an active sponsor of the legislation in the form approved by the committee, expressing a view differing from that stated in paragraph (a) of this section. The opinion expressed in these statements appears to be that the burden of establishing a prima facie case of violation of the equal pay provisions includes not only a showing of the facts necessary to establish a failure to comply with the Act's general standard, but also a showing that no facts exist that could bring the wage differential within an exception. In this view, the employer would not have to show facts necessary to prove the exception as an affirmative defense (Daily Congressional Record, House, May 23, 1963, p. 8698). But if the exceptions are intended to have an exempting effect, as was indicated by House committee spokesmen (H. Rept. No. 309, 88th Cong., 1st sess., p. 3; statement of Subcommittee Chairman Thompson, Daily Congressional Record, House, May 23, 1963, p. 8685), it seems plain that a view such as that expressed above is not consistent with the general rule established by the courts that the application of an exemption under this Act is a matter of affirmative defense and the employer urging such an exemption has the burden of showing that it applies. (See Phillips v. Walling, 334 U.S. 490; Arnold v. Kanowsky, 361 U.S. 388; Walling v. General Industries Co.,

330 U.S. 545; Mitchell v. Kentucky Finance Co., 359 U.S. 290.) On balance, it would be difficult to conclude from the legislative history that it was the intent of Congress to supersede this established rule by applying a different rule to these provisions than to other exemptions from section 6 or 7. The House committee report emphasized that the "now familiar system of * * * administration, and enforcement, ** will be utilized fully to complement the new provision" and many statements in the legislative debates as well as the report of the Senate committee further indicate a well-understood legislative intent to apply and enforce the equal pay provisions in a manner consistent with the familiar procedures traditionally followed under the Act in the administration and enforcement of its labor standards. (H. Rept. No. 309, S. Rept. No. 176, 88th Cong. 1st sess.; Daily Congressional Record, House, May 23, 1963, pp. 8692, 8705; Daily Congressional Record, Senate, May 28, 1963, pp. 9219-9220). Also pertinent is the understanding expressed by the House sponsors that a "bona fide program" that "does not discriminate on the basis of sex will serve as a valid defense to a charge of discrimination" (H. Rept. No. 309, 88th Cong. 1st sess.; Daily Congressional Record, House, May 23, 1963, p. 8685) and the clarifying remarks of the subcommittee chairman managing the House-passed legislation in the Senate, who said: "The employer's defense, if it is based on an employer's plan, must be a bona fide one; and the burden of demonstrating the legitimacy of that defense will rest upon the employer." (Daily Congressional Record, Senate, May 28, 1963, p. 9219). On review of the legislative history as a whole, therefore, the most reasonable conclusion appears to be that the position expressed in paragraph (a) of this section is the better view, and that it is consistent with the legislative intent to consider the statutory exceptions, like other exemptions from section 6, as matters of affirmative defense and to require an employer who believes he comes within them to show facts establishing that this is so.

Section 800.142.-Sex must not be a factor in excepted wage differentials.

While differentials in the payment of wages are permitted when it can be shown that they are based on a seniority system, a merit system, a sys

pay violations. For example, in an establishment where men and women are employed on a job, but only men work on the night shift for which a night shift differential is paid, such a differential would not be prohibited. However, the payment of a higher hourly rate to all men on that job for all hours worked because some of the men may occasionally work nights would result in a prohibited wage differential. The examples (in the sections following) illustrate a few applications of the exception provisions.

Section 800.146.-Examples-"red circle" rates, in general.

The term "red circle" rates describes certain unusual, higher than normal, wage rates which are maintained for many reasons. An example of the use of a "red circle" rate might arise in a situation. where a company wishes to transfer a long-service male employee, who can no longer perform his regular job because of ill health, to different work which is now being performed by women. Under the "red circle" principle the employer may continue to pay the male employee his present salary, which is greater than that paid to the women employees, for the work both will be doing. Under such circumstances, maintaining an employee's established wage rate, despite a reassignment to a less demanding job, is a valid reason for the differential even though other employees performing the less demanding work would be paid at a lower rate, since the differential is based on a factor other than sex. However, where wage rate differentials have been or are being paid on the basis of sex to employees performing equal work, rates of the higher paid employees may not be "red circled" in order to comply with the Act. To allow this would only continue the inequities which the Act was intended to cure.

Section 800.147.-Examples-temporary reas

signments.

For a variety of reasons an employer may require an employee, for a short period, to perform the work of a job classification other than the employee's regular classification. If the employee's rate for his regular job is higher than the rate usually paid for the work to which he is temporarily reassigned, the employer may continue to pay him the higher rate, under the "red circle" principle. For instance, an employer who must

reduce help in a skilled job may transfer employees to less demanding work without reducing their pay, in order to have them available when they are again needed for their former jobs. Although employees traditionally engaged in performing the less demanding work would be paid at a lower rate than those employees transferred from the more skilled jobs, the resultant wage differential would not constitute a violation of the equal pay provisions since the differential is based on factors other than sex. This would be true during the period of time for which the "red circle" rate is bona fide. (See sec. 800.146.) Temporary reassignments may also involve the opposite relationship of wage rates. Thus, an employee may be required, during the period of temporary reassignment, to perform work for which employees of the opposite sex are paid a higher wage rate than that paid for the duties of the employee's regular job classification. In such a situation, the employer may continue to pay the reassigned employee at the lower rate, if the rate is not based on quality or quantity of production, and if the reassignment is in fact a temporary one. If a piece rate is paid employees of the opposite sex who perform the work to which the employee in question is reassigned, failure to pay that employee the same piece rate paid such other employees would raise questions of discrimination based on sex. Also, failure to pay the higher rate to the reassigned employee after it becomes known that the reassignment will not be of a temporary nature would raise a question whether sex rather than the temporary nature of the assignment is the real basis for the wage differential. Generally, failure to pay the higher rate for a period longer than one month will raise questions as to whether the reassignment was in fact intended to be a temporary one.

Section 800.148.-Examples-training pro

grams.

Employees employed under a bona fide training program may, in the furtherance of their training, be assigned from time to time to various types of work in the establishment. At such times, the employee in training status may be performing equal work with nontrainees of the opposite sex whose wages or wage rates may be unequal to those of the trainee. Under these circumstances, provided the rate paid to the employee in training status is paid, regardless of sex, under the training program, the

differential can be shown to be attributable to a factor other than sex and no violation of the equal pay standard will result. Training programs which appear to be available only to employees of one sex will, however, be carefully examined to determine whether such programs are, in fact, bona fide. In an establishment where a differential is paid to employees of one sex because, traditionally, only they have been considered eligible for promotion to executive positions, such a practice, in the absence of a bona fide training program, would be a discrimination based on sex and result in a violation of the equal pay provisions, if the equal pay standard otherwise applies.

Section 800.149.-Examples "head of household".

Sometimes differentials in pay to employees performing equal work are said to be based on the fact that one employee is head of a household and the other, of the opposite sex, is not. In general, such allegations have not been substantiated. Experience indicates that where such factor is claimed the wage differentials tend to be paid to employees of one sex only, regardless of the fact that employees of the opposite sex may bear equal or greater financial responsibility as head of a household or for the support of parents or other family dependents. Accordingly, since the normal pay practice in the United States is to set a wage rate in accordance with the requirements of the job itself and since a "head of household" or "head of family" status bears no relationship to the requirements of the job or to the individual's performance on the job, the general position of the Secretary of Labor and the Administrator is that they are not prepared to conclude that any differential allegedly based on such status is based on a "factor other than sex" within the intent of the statute.

Section 800.150.-Examples-temporary and part-time employees.

The payment of different wage rates to permanent employees than to temporary employees such as may be hired during the Christmas season would not necessarily be a violation of the equal pay provisions even though equal work is performed by both groups of workers. For example, no violation would result where payment of such a differential conforms with the nature and duration of

the job and with the customary practice in the industry and the establishment, and the pay practice is applied uniformly to both men and women. Generally, employment for a period longer than one month will raise questions as to whether the employment is in fact temporary. Likewise, the payment of a different wage to employees who work only a few hours a day than to employees of the opposite sex who work a full day will not necessarily involve noncompliance with the equal pay provisions, even though both groups of workers are performing equal work in the same establishment. No violation of the equal pay standards would result if, for example, the difference in working time is the basis for the pay differential, and the pay practice is applied uniformly to both men and women. However, if employees of one sex work 30 to 35 hours a week and employees of the other sex work 40 to 45 hours, a question would be raised as to whether the differential is not in fact based on sex since different rates for part-time work are usually for workweeks of 20 hours or less. Section 800.151.-Examples-employment cost factors.

A wage differential based on claimed differences between the average cost of employing the employer's women workers as a group and the average cost of employing the men workers as a group does not qualify as a differential based on any "factor other than sex," and would result in a violation of the equal pay provisions, if the equal pay standard otherwise applies. To group employees solely on the basis of sex for purposes of comparison of costs necessarily rests on the assumption that the sex factor alone may justify the wage differential-an assumption plainly contrary to the terms and purpose of the Equal Pay Act. Wage differentials so based would serve only to perpetuate and promote the very discrimination at which the Act is directed, because in any grouping by sex of the employees to which the cost data relates, the group cost experience is necessarily assessed against an individual of one sex without regard to whether it costs an employer more or less to employ such individual than a particular individual of the opposite sex under similar working conditions in jobs requiring equal skill, effort, and responsibility. [31 F.R. 2657, Feb. 11, 1966]

Sections 800.152-800.159.-[Reserved]