THE IMPACT OF JUDICIAL CONSTRUCTION: TITLE VII AND THE
EQUAL PAY ACT: County of Washington v. Gunther
INTRODUCTION
On June 8, 1981, by a 5-4 decision, the United States Supreme Court in County of Washington v. Gunther' invited the
women of the United States to define the parameters of sex-based
wage discrimination.2 Though erroneously described as the "comparable worth" case,3 the Court actually resolved a seventeen year
1. 101 S. Ct. 2242 (1981).
2. The Court clearly states that the decision does not define "the precise contours of lawsuits challenging sex discrimination in compensation under Title VII."
Id. at 2246. It is the narrowness of the decision which the dissent attacks as a "restricted railroad ticket, 'good for this day and train only.'" Id. at 2254 (Rehnquist, J.,
dissenting) (quoting Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting)).
3. Comparable worth can be described most succinctly as equal pay for work of
equal value. "For many women, the slogan 'equal pay for work of equal value' has
replaced the slogan 'equal pay for equal work' which is embodied in the Equal Pay
Act of 1963."
COMMITTEE ON OCCUPATIONAL CLASSIFICATION AND ANALYSIS AS-
SEMBLY OF BEHAVIORAL AND SOCIAL SCIENCES, NATIONAL RESEARCH COUNCIL,
WOMEN, WORK AND WAGES: EQUAL PAY FOR JOBS OF EQUAL VALUE 2 (1981).
Under a comparable worth theory, sex-based wage discrimination would not imply an intent on the part of the employer to pay lower wages, but would refer only to
the outcome. Courts thus far have been unwilling to address this theory. See Lemon
v. City & County of Denver, 620 F.2d 228 (10th Cir. 1980).
While the Equal Pay Act requires a woman to show that her job was substantially the same as a man's job in the same establishment, Title VII claims may now
be brought though no man holds an equal but higher paying job, provided the challenged wage rate is not exempt under the Equal Pay Act's affirmative defenses.
County of Washington v. Gunther, 101 S. Ct. 2242 (1981).
A comparable worth standard is much broader. See Lemon v. City & County of
Denver, 620 F.2d 228 (10th Cir. 1980) where plaintiffs brought a cause of action
seeking relief under a comparable worth theory. Female nurses claimed sex discrimination in wages as compared to other, predominantly male, civil service employees.
The nurses made no claims of substantially equal work. They claimed their jobs as
nurses were of equal value to those of tree trimmers and accountants. The defendants claimed, and the court agreed, that the wage differences were based on the legitimate reason of meeting competition. In rejecting the claim, the court refused to
venture into "the whole new world" of wage claims not meeting the equal work
standard. Id. at 229.
Women in jobs which are traditionally held by females argue that jobs requiring
similar levels of skill, effort, responsibility and similar working conditions are paid
more if held by men. Over 25% of women workers are concentrated in occupations
that are 90% or more female: secretaries, 99.1%; pre-kindergarten and kindergarten
teachers, 98.7%; telephone operators, 95.3%; sewers and stitchers, 95.2%; keypunch
operators, 93.2%; waitresses, 90.4%; bookkeepers, 90%; cashiers, 87%. Testimony of
The Women's Legal Defense Fund on the Legal Institutionalization of Woman s
221
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old controversy 4 involving interpretations of the Equal Pay Act of
1963, 5 Title VII of the Civil Rights Act of 1964,6 and the Bennett
Amendment to Title VII. 7 The Court held that claims of wage dis-
crimination under Title VII are not limited to the Equal Pay Act's
standard of equal pay for equal work. They may be brought even
though no man holds an equal but higher paying job if the challenged rate is not based on seniority, merit, quantity or quality of
production or any factor other than sex.8 Thus a woman would
have a cause of action even though she worked at a job held only
by females if she could prove by direct evidence that her wages
had been intentionally depressed.
This decision coupled with the denial of writ of certiorari in
I.U.E. v. Westinghouse Elec. Corp.,9 paves the way for a case by
Place in the Job Market before the Equal Employment Opportunity Commission
(April, 1980) (quoting U.S. DEPARTMENT OF LABOR, BUREAU OF LABOR STATISTICS,
EMPLOYMENT & EARNINGS 153-54 (Jan. 1978)).
Women's full time annual earnings were 64% of men's wages in 1955. In 1978,
they earned 59 cents for every dollar that men earned. COMMITTEE ON OCCUPATIONAL CLASSIFICATION AND ANALYSIS ASSEMBLY OF BEHAVIORAL AND SOCIAL
SCIENCES, NATIONAL RESEARCH COUNCIL, WOMEN WORK AND WAGES: EQUAL PAY
FOR JOBS OF EQUAL VALUE 13 (1981). Women with college degrees earn an average
of $12,250 which is less than white men who have completed eighth grade ($13,322).
Id. at 15.
The Equal Employment Opportunity Commission has determined that job evaluation systems must change to reflect the equal pay for a job of equal worth
standard, often because the systems themselves internalize the very bias which is
built into the wage structure. To determine wage scales for employees, most business and government personnel departments use one of two types of systems. One
system measures the community rate for a particular job and the other weighs skill,
effort, responsibility and the like to develop a point system. See also note 33 infra.
Even E. Robert Livernash, the oft-quoted critic of the comparable worth theory
and proponent of the point system of evaluation, admits that these systems can perpetuate discrimination by defining characteristics in a way which reflects a bias toward a particular group. EQUAL EMPLOYMENT ADVISORY COUNCIL, COMPARABLE
WORTH: ISSUES AND ALTERNATIVES 59 (1980).
The plaintiffs in Gunther never alleged a comparable worth theory, yet one
amicus curiae brief addressed only this issue. Brief of American Society for Personnel Administration, Amicus Curiae, County of Wash. v. Gunther, 101 S. Ct. 2242
(1981). The media, too, termed Gunther the "comparable worth" case. See Wermiel,
High Court Looks at Women's Pay in Dispute on "Comparable Worth", Wall St. J.,
May 14, 1981, at 29, col. 4.
4. See text accompanying notes 12-43 infra.
5. 29 U.S.C. § 206(d)(1) (1976). See note 16 infra for text of statute.
6. 42 U.S.C. §§ 2000e-1, to -17 (1976). See note 27 infra for text of statute.
7. 42 U.S.C. § 2000e-2(h) (1976). See note 36 infra for text of statute.
8. 101 S. Ct. at 2247.
9. I.U.E. v. Westinghouse Elec. Corp., 631 F.2d 1094 (3d Cir. 1980), cert.
denied, 101 S. Ct. 3122 (1981). In Westinghouse, the company approved and author-
1981]
EQUAL PAY ACT
case development of wage discrimination law'0 which will be the
thrust of the women's movement in the eighties."
BACKGROUND
A.
Statutory Framework
The early sixties produced two statutes which currently define
sex discrimination in employment. Title VII of the Civil Rights Act
was passed by Congress just days before the Equal Pay Act took effect, prompting Senator Wallace Bennett (D-Utah) to attempt a
hasty interpretive amendment.' 2 Though termed a "technical correction," 13 the Bennett Amendment has been the focus of interpre14
tive confusion.
i. Equal Pay Act
In 1963, after generations of empassioned discussion, 15 the
ized lower pay scales for jobs that originally were held only by females. The district
court granted summary judgment for Westinghouse on the grounds that the plaintiffs
did not allege that the women employees were performing work equal to that of
men. The court of appeals reversed and remanded. Less than three weeks after the
Gunther decision, the Supreme Court denied a writ of certiorari in Westinghouse, reaffirming Gunther's holding that plaintiffs have a cause of action where they allege
the employer intentionally set lower wage rates for predominantly female jobs. See
Note, Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, 49 GEO.
WASH. L. REv. 369 (1981).
10. See generally Lenhoff, 'Gunther' Opens New Wage Discrimination Territory, Legal Times of Wash., July 20, 1981, at 17, col. 1 (Gunther and IUE together
settle the primary jurisdictional question under Title VII.).
11. Wermiel, High Court Looks at Women's Pay in Dispute on "Comparable
Worth", Wall St. J., May 14, 1981, at 29, col. 4.
12. Senator Wallace Bennett (D-Utah), in presenting his amendment, noted that
the Equal Pay Act had become effective only the day before. 110 CONG. REc. 13647
(1964). See note 36 infra for Senator Bennett's amendment. For a complete
discussion of the three statutes see Blumrosen, Wage Discrimination,Job Segregation, and Title VII of the Civil Rights Act of 1964, 12 U. MiCH. J.L. REF.397 (1979).
13. See note 72 infra for Senator Bennett's explanation.
14. See text accompanying notes 37-39 infra.
15. Public figures occasionally spoke about equal compensation for women
soon after the Civil War, but the impetus was provided by the expansion of the female work force during the First World War. By 1918, the Labor Department promoted the equal pay principle. During the Great Depression, women workers were
hired mainly because their pay rate was lower. The Roosevelt administration failed
to pass an equal pay statute as part of the National Recovery Act but was able to pass
the Fair Labor Standards Act of 1938 without differentiation on the basis of sex. Immediately following World War II several bills were reported to both houses of Congress, but legislation never passed. Serious consideration laid dormant until 1962
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Equal Pay Act became law' 6 as part of the Fair Labor Standards
Act of 1938.17 Its purpose was to end wage discrimination where
women held the same jobs as men, i.e., equal pay for equal
work.' 8 Unfortunately, Congress did not define "equal".' 9 In
Schultz v. Wheaton Glass Co., the Court first interpreted the term
20
as meaning substantially equal rather than absolutely identical.
Substantially equal means that the major tasks of the male and female jobs must be common to both, and the minor, unshared duwhen the Kennedy Administration engaged in months of negotiation which resulted
in the Equal Pay Act of 1963. A comprehensive history is chronicled by Donald
Elisburg, the Assistant Secretary of Labor for Employment Standards during the
Carter Administration, in Elisburg, Equal Pay in the United States: the Development
and Implementation of the Equal Pay Act of 1963, 29 LAB. L.J. 195 (1978). See also
B. PETTMAN, EQUAL PAY FOR WOMEN: PROGRESS AND PROBLEMS IN SEVEN COUNTRIES (1977); Kanowitz, Sex Based Discriminationin American Law III: Title VII of
the 1964 Civil Rights Act and the Equal Pay Act of 1963, 20 HASTINGS L.J. 305, 308
(1968).
16. The Equal Pay Act, 29 U.S.C. § 206(d)(1) (1976), provides in pertinent 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 measure earnings by quantity or quality of
production; or (iv) a differential based on any other factor other than sex.
For a thorough discussion of the legislative history of the Equal Pay Act, see Gitt &
Gelb, Beyond the Equal Pay Act: Expanding Wage Differential Protections Under
Title VII, 8 Loy. CHI. L.J. 723 (1977).
17. The Fair Labor Standards Act provided minimum wage and maximum hour
requirements for businesses. 29 U.S.C. §§ 206-19 (1976).
18. An excellent overview of the purpose of the Equal Pay Act can be found in
Sullivan, The Equal Pay Act of 1963: Making and Breaking a Prima Facie Case, 31
ARK. L. REv. 545, 559 (1978).
19. Congress may have left the interpretation to the courts, since there was
considerable debate regarding its meaning during deliberation on the bill. See, e.g.,
109 CONG. REC. 9197 (1963) (remarks of Rep. Charles Goodell (D-N.Y.)) (the Equal
Pay Act is expected to apply only to jobs that are substantially identical or equal.) Cf.
109 CONG. REc. 9213 (1963) (remarks of Rep. O.C. Fisher (D-Tex.)) (equal work may
be interpreted as either comparable or identical).
20. Schultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.), cert. denied, 398
U.S. 905 (1970). In Wheaton Glass, male glass inspector-packers were paid approximately twenty cents more per hour than their female counterparts. The employer argued that this was because the men sometimes had to carry boxes weighing more
than thirty-five pounds, a task women were prohibited from performing by statute.
The court found no proof that the additional duties were performed, nor that the
men spent any significant working time performing them.
EQUAL PAY ACT
1981]
ties must be equal in skill, effort and responsibility. 2 1 Employers,
therefore, cannot
make minor changes in jobs or titles to circum22
vent the Act.
The Equal Pay Act is enforced through private litigation, while
Title VII is enforced by the Equal Employment Opportunity Commission (EEOC).23 The Equal Pay Act has broad affirmative defenses which allow an employer to show that wage rates are set by
merit, seniority, quantity or quality of work or any factor other
than sex. 2 4 The last defense, a catch-all, permits a company 2to
apparent inequalities. 5
demonstrate any non-intentional reason for
ii.Title VII
Just one year after the passage of the Equal Pay Act, Congress
enacted a sweeping, remedial ban on wage discrimination 26 with
Title VII of the Civil Rights Act. 2 7 The purpose of the Civil Rights
21. The Wheaton Glass standard was adopted by the Supreme Court in
Coming Glass v. Brennan, 417 U.S. 188 (1974), and before that by various circuits:
See Brennan v. Prince Win. Hosp. Corp., 503 F.2d 282 (4th Cir. 1974); Hodgson v.
Coming Glass Works, 474 F.2d 226 (2d Cir. 1973); Schultz v. American Can Co., 424
F.2d 356 (8th Cir. 1970). For a succinct discussion of the substantially equal standard
in these early cases, see Bums & Bums, An Analysis of the Equal Pay Act, 24 LAB.
L.J. 92 (1973).
22. Schultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir.), cert. denied, 398 U.S.
905 (1970). An extensive study of the tests for determining equal work can be found
in Johnson, The Equal Pay Act of 1963: A PracticalAnalysis, 24 DRAKE L. REv. 570
(1975).
23. Equal Employment Opportunity Commission enforcement is primarily accomplished through conciliation methods. See generally Sangerman, A Look at the
Equal Pay Act in Practice,22 LAB. L.J. 259 (1971).
24.
29 U.S.C. § 206(d)(1) (1976).
25. Courts are not in agreement on what constitutes a factor other than sex. See
Dothard v. Rawlinson, 433 U.S. 321 (1977) (height and weight requirements may not
be validly asserted as factors other than sex); cf. General Elec. Co. v. Gilbert, 429
U.S. 125 (1976) (ability to become pregnant is a factor other than sex).
26. For a discussion of the limited legislative history of Title VII see Girt &
Gelb, supra note 16, at 742.
27. Title VII of the Civil Rights Act of 1964 provides in relevant part:
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; or,
(2) to limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2 (1976).
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Act was to "prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the
basis of race, religion, sex or national origin." 28 On its face, Title
29
VII seems to swallow whole the Equal Pay Act.
Although the Equal Pay Act demands that the plaintiff show a
clearly defined prima facie violation, 30 under Title VII, a more
flexible standard is used. One need only present sufficient evidence to "create an inference that an employment decision was
based on a discriminatory criterion under the Act." 3' If a prima
facie case is demonstrated,32 the burden shifts to the employer to
show a non-discriminatory reason for the practice. 33 A court has
28. Franks v. Bowman Transp. Co., 424 U.S. 747, 763 (1976).
29. Title VII prohibitions reach far beyond the narrow concept of equal pay for
equal work in the same establishment. Title VII addresses every aspect of employment discrimination, including job classifications which might tend to adversely affect employment opportunities. Since the Equal Pay Act had yet to take effect, one
must question how the 1964 bill became a subject for consideration.
The answer may stem from a last minute attempt to defeat the entire Civil
Rights Bill of 1964. Two days before the final passage of the bill, Representative
Howard A. Smith of Virginia added the prohibition of sex discrimination, although
the proposal was originally designed to protect the rights of blacks. See 110 CONG.
REc. 2577 (1964) (remarks of Rep. Howard Smith (D-Va.)). The amendment passed
the same day and, with little discussion, became part of the law. Congressman
Smith, who had proposed the amendment, then voted against Title VII. 110 CONG.
REC. 2804 (1964). Because of its hasty passage, the potential conflict of Title VII
with other statutes was inevitable.
30. Under the Equal Pay Act, a plaintiff would prove a prima facie case by
showing that her wages were set lower than those of men working at a substantially
equal job in the same establishment. See text accompanying notes 21 & 22 supra.
31. International Bhd. of Teamsters v. United States, 431 U.S. 324, 358 (1977).
The requirements for proof of a primafacie case will vary with the type of discrimination alleged and will be determined on a case by case basis.
32. A prima facie case under Title VII would be demonstrated if it is proved
that the employer has inherently discriminatory policies that are preserved through
form or habit. "Good intent or absence of discriminatory intent does not redeem employment procedures .. .that operate as 'built in headwinds' .... Griggs v. Duke
Power Co., 401 U.S. 424, 432 (1971).
The Supreme Court outlined a four-fold test for a prima facie case under Title
VII in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A plaintiff must
show that 1) he or she was a member of a protected class; 2) the plaintiff was qualified for and applied for the position for which employer was seeking applicants; 3)
despite qualifications he or she was rejected; 4) after the rejection, the employer
continued to interview applicants with like qualifications. Id. at 802. Intent will be
inferred if the plaintiff meets the criteria. See also Sullivan, supra note 18, at 559.
33. The burden shifted is the burden of proof rather than the burden of persuasion. The employer must demonstrate that the plaintiff was rejected for some
nondiscriminatory reason. Texas Dep't of Community Affairs v. Burdine, 25 F.E.P.
19811
EQUAL PAY ACT
broad powers to enjoin an employer from engaging in any unlawful
practice or to grant reinstatement, back pay, or any other remedy it
34
believes is appropriate.
i.
Bennett Amendment
Two days before the vote on the Civil Rights Act, Representative Howard A. Smith of Virginia, without addressing the impact
on the Equal Pay Act, proposed an amendment inserting the word
"sex" throughout the Civil Rights Act. Noting the possible conflicts
between the two statutes after Representative Smith's wholesale
addition of the word sex, Senator Bennett hastily proposed 3 5 a
Cases 113, 116 (D. Tex. 1981). See Pingpank, Burden of Proofin Title VII Disparate
Treatment Cases, 7 CONN. L. TRIB. 43, Oct. 26, 1981, at 3, col. 1.
An employer will often use a job evaluation program to demonstrate the neutrality of a policy. These programs assign relative weight to worker tasks, thereby establishing systems which measure each job from janitor to president on the same scale.
For example, the University of Washington assigned ninety-three points to food
service workers, most of whom are female, with a starting salary of $646.00 to
$827.00 per month. Traffic guides, most of whom are male, and whose job is to issue
car passes from a small house, are assigned a lower number, 89 points, though they
receive a starting salary of $806.00 to $1,032.00 per month. The Washington Post,
Nov. 13, 1979, at 5, col. 1.
A recent study lists several problems with these job evaluation systems. First,
the plans themselves use actual wages to help determine the weights placed on
various job factors, thereby incorporating community discriminatory beliefs. Second,
many firms use different plans for different types of jobs and since women are
concentrated in jobs with substantially different tasks, there is ample room for subjectively valuing these skills at a point lower on the scale. Third, the process is "inherently judgmental." As a result, before any wage structure using these methods
can be trusted, a consensus must be reached regarding point and weight valuations.
See COMMITTEE ON OCCUPATIONAL CLASSIFICATION AND ANALYSIS ASSEMBLY OF
BEHAVIORAL AND SOCIAL SCIENCES, NATIONAL RESEARCH COUNCIL, WOMEN,
WORKY, AND WAGES: EQUAL PAY FOR JOBS OF EQUAL VALUE 95-96 (1981).
34. 42 U.S.C. § 2000e-5(g) (1976).
35. The entire legislative history of the Bennett Amendment is as follows:
Mr. BENNETT: Mr. President, I yield myself 2 minutes. I call up my
amendment No. 1051 and ask that it be read.
The PRESIDING OFFICER: The amendment will be stated.
The legislative clerk read as follows:
On Page 44, line 15, immediately after the period, it is proposed to insert the following new sentence: "It shall not be an unlawful employment
practice under this title for any employer to differentiate upon the basis of
sex in determining 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 6(d) of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. § 206(d)).
Mr. BENNETT: Mr. President, after many years of yearning by mem-
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"technical amendment" to Title VII which stated that in the event
of any discrepancies, the provisions of the Equal Pay Act would not
be nullified. 36
The Bennett Amendment states that a sex-based wage differentiation would not be unlawful under Title VII if authorized by
the provisions of the Equal Pay Act. It is the word "authorize"
which has concerned commentators and the Gunther Court. Does
the authorization language indicate an intent to incorporate the
Equal Pay Act's four affirmative defenses-possible if the statute is
interpreted literally-or is equal pay for equal work the only cause
37
of action to be brought under Title VII?
bers of the fair sex in this country, and after very careful study by the appropriate committees of Congress, last year Congress passed the so-called
Equal Pay Act, which became effective only yesterday.
By this time, programs have been established for the effective administration of this act. Now, when the civil rights bill is under consideration, in
which the word 'sex' has been inserted in many places, I do not believe sufficient attention may have been paid to -possible conflicts between the
wholesale insertion of the word 'sex' in the bill and in the Equal Pay Act.
The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified.
I understand that the leadership in charge of the bill have agreed to the
amendment as a proper technical correction of the bill. If they will confirm
that understanding, I shall ask that the amendment be voted on without asking for the yeas and nays.
Mr. HUMPHREY: The amendment of the Senator from Utah is helpful.
I believe it is needed. I thank him for his thoughtfulness. The amendment is
fully acceptable.
Mr. DIRKSEN: Mr. President, I yield myself 1 minute.
We were aware of the conflict that might develop because the Equal
Pay Act was an amendment to the Fair Labor Standards Act. The Fair Labor
Standards Act carries out certain exceptions.
All that the pending amendment does is recognize those exceptions, that
are carried in the basic act.
Therefore, this amendment is necessary, in the interest of clarification.
The PRESIDING OFFICER: (Mr. RIBICOFF in the chair). The question is on agreeing to the amendment of the Senator from Utah. (Putting the
question).
The amendment was agreed to.
110 CONG. BEc. 13647 (1964) (emphasis added).
36. The amendment provides:
It shall not be an unlawful employment practice under [Title VII] for any
employer to differentiate upon the basis of sex in determining the amount of
wages or compensation paid or to be paid to employees of such employer if
such differentiation is authorized [under the provisions of the Equal Pay
Act].
42 U.S.C. § 2000e-2(h) (1976) (emphasis added).
37. Senator Bennett explained his meaning of the amendment. See note 72
infra.
1981]
EQUAL PAY ACT
Faced with an amendment which on its face would be interpreted one way, whose legislative history was ambiguous, and
whose later explanations could not be considered binding, complainants turned to the courts.
B.
Confusion in the Circuit Courts
In the absence of Congressional guidance, the courts which
have addressed the issue have taken three possible routes: some favored the broader view of the Bennett Amendment requiring equal
pay for equal work as the only cause of action under Title VII, 38
some favored the narrow view-the Bennett Amendment modifies
the scope of Title VII only by making the Equal Pay Act defenses
available to Title VII claims, 39 and some refused to face the prob38. The Fourth Circuit recently reaffirmed its broad view holding that sexbased wage rate claims must meet the equal work standard. See Stastny v. Southern
Bell Tel. & Tel. Co., 628 F.2d 267 (4th Cir. 1980). In Stastny, the female plaintiffs
did not demonstrate that their jobs were substantially equal to jobs performed by
men, that is, that their jobs required equal skill, effort and responsibility. Id.
The Fifth Circuit in dicta implied that Title VII plaintiffs must meet equal pay
standards. See Orr v. MacNeill and Sons, 511 F.2d 166 (5th Cir.), cert. denied, 423
U.S. 865 (1975). Although other circuits have not addressed the issue directly, language in some cases supports the broad interpretation. See DiSalvo v. Chamber of
Commerce, 568 F.2d 593 (8th Cir. 1978); Calage v. University of Tenn., 544 F.2d 297
(6th Cir. 1977).
39. The Third and Tenth Circuits follow the narrow interpretation of the Ninth
Circuit decisions. The Court of Appeals in the Third Circuit was the first to see Title
VII as positively protecting undercompensated women in sex segregated jobs. See
I.U.E. v. Westinghouse Elec. Corp., 631 F.2d 1094 (3d Cir. 1980), cert. denied, 101
S. Ct. 3122 (1981) where the district court's summary judgment was reversed, due to
plaintiffs' failure to contend the existence of a female job substantially equal to any
male job. The plaintiffs produced documents showing that salaries for the originally
female-only jobs were set intentionally lower than male jobs in labor grades. The
specific charge stated that Westinghouse "violated Title VII . . .by paying [women]
lower rates of pay than would be paid [them] if [their] skill, effort and responsibility
were evaluated on the same basis as is used in evaluating work performed by males
....
"Id. at 1096 n.1. The court reasoned "Congress [could not have intended] to
permit Westinghouse to willfully discriminate against women in a way in which it
could not discriminate against blacks or whites, Jews or Gentiles, Protestants or
Catholics, Italians or Irish, or any other group protected by the Act." Id. at 1097.
The Tenth Circuit chose the narrow view of the Bennett Amendment in
Fitzgerald v. Sirloin Stockade, 624 F.2d 945 (10th Cir. 1980). In Fitzgerald, a female
employee performing the duties of a director of advertising was not paid a salary
commensurate with her responsibilities. The court ruled that she was not required to
demonstrate that her job was substantially equal to that of a male to recover for intentional wage discrimination. Id. at 953-54.
In addition to the Gunther decision, the Ninth Circuit in Manhart v. City of Los
Angeles, 553 F.2d 581 (9th Cir. 1976) (city requirement that women make higher
pension fund contributions than men was based on women's higher life expectancies
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lem by finding other bases on which to decide the case.40 With the
decision in Gunther, the Supreme Court resolved the conflict by
deciding that the narrow view of the Bennett Amendment is the
41
correct interpretation.
COUNTY OF WASHINGTON V. GUNTHER
A.
Facts
Alberta Gunther, Velene Vallence, Marion Vander Zanden
and Yvonne Hatton, matrons in the female section of the
Washington county jail, brought suit for back pay alleging wage
discrimination. Their male counterparts, called corrections officers,
patrolled the male section of the prison, and were paid an average
of $200.00 more per month than the matrons. Because statutes prohibited males from interrogating, searching or even entering the
cell of a female prisoner unless accompanied by a woman, 42 no
man held a position on the female side of the prison. Since the duties of the matrons were slightly different from those of corrections
officers, 48 and since no male held an identical position, the District
and therefore constituted wage discrimination based on a factor other than sex) decided that the four defenses of the Equal Pay Act had been incorporated into Title
VII and that the defendant had not carried the burden of persuasion in showing a
factor other than sex, though the court never addressed whether the equal work
standard applied to Title VII.
40. See Christensen v. Iowa, 563 F.2d 353 (8th Cir. 1977). In Christensen, clerical workers argued that the Bennett Amendment does not bar claims failing to meet
the equal work standard. The university at which they worked raised the starting salary of physical plant workers while retaining the starting pay at the same rate for
clerical workers with the same job evaluation classification because the local job
market paid higher wages for the primarily male job. The court never reached the
plaintiffs' argument. It decided the case on grounds that disparity based on sex was
not shown.
41. County of Washington v. Gunther, 101 S. Ct. 2242 (1981).
42. Under Oregon law, a woman must be present in three instances: "when a
female prisoner requires a search or at any time during confinement that a female
prisoner's cell needs to be entered." OR. REV. STAT. § 169.075(3) (1973), or "[wihenever any woman or girl is interrogated with reference to any sexual crime," OR. REV.
STAT. § 136.345 (1973), or "[w]henever [a] female [is conveyed] to any.., penal, reformatory or eleemosynary institution .... ." OR. REV. STAT. § 137.360(2) (1973).
43. The matrons' principal responsibilities were to process and guard female
prisoners. On occasion, the matrons transported prisoners, assisted in arrests, and
processed records. The matrons frequently performed the processing function for
males: booking them, taking mug shots and fingerprinting. Brief for Respondent at 2.
Male corrections officers each guarded ten inmates, while matrons guarded an average of only one. Because there were far fewer female prisoners per guard, the ma-
1981]
EQUAL PAY ACT
Court ruled as a matter of law that the work standard of the Equal
Pay Act had not been met and therefore relief was unavailable under Title VII. 44 On appeal, the Ninth Circuit held that the matrons
were not barred from bringing suit for unlawful sex discrimination
even though the job descriptions were not identical, 45 thereby interpreting the statutory language far more broadly than the District
Court. The District Court was instructed to consider on remand
the evidence of intentional sex discrimination in fixing the matrons'
compensation. 46 In denying the county's petition for rehearing, 47
the Appellate Court filed a supplemental opinion48 analyzing the
interrelationship of the Equal Pay Act and Title VII, 49 and emphatrons were assigned clerical duties when time permitted, while corrections officers
rarely performed this duty. Gunther v. County of Washington, 20 F.E.P. Cases 788,
789-91 (D. Or. 1976).
44. Id. at 789-91.
"Plaintiff's have not met their burden of proving that the men's and women's job
were substantially equal. Even though the matrons' jobs may have required as much
skill as those of the men guards, the matrons' job did not require equal effort and responsibility." Id. at 791.
45. Gunther v. County of Washington, 602 F.2d 882, 891 (1979), rehearing
denied, 623 F.2d 1303 (9th Cir. 1980).
46. County of Washington v. Gunther, 101 S. Ct. 2242 (1981). Official job descriptions, civil service exams and training of both men and women guards were
identical. Although the matrons who had an average of 4.3 years service were paid
between $525 and $668 per month, beginning corrections officer trainees' salaries
ranged from $668 to $812. See Brief in Opposition to Petition for Writ of Certiorari at
3. The matrons unsuccessfully pursued equal pay through both their union and the
Civil Service Commission. Union officials warned the women "to cool it." See Brief
for Respondents at 5 (quoting from deposition of Alberta Gunther at 20).
A few months later, the female prisoners were transferred to another prison and
the complainants were terminated. Matrons who had not entered the dispute were
transferred to another prison. Shortly thereafter, male prison guards' salaries were
raised to $1,000 per month. Brief for Respondent at 4.
47. The county petitioned for a rehearing on the contention that the court decided an important issue-that Title VII is not limited to an equal pay for equal work
standard-with minimal discussion by the parties and that the panel of judges overlooked important legislative history and case law. Gunther v. County of Washington,
623 F.2d 1303, 1321 (9th Cir. 1980).
48. Id. at 1317.
49. Appellate Judge Tang's rationale was closely paralleled by Justice
Brennan's. Both pointed to the scant but supporting legislative history, the broad remedial policy of Title VII, and the language in Manhart v. City of Los Angeles, 553
F.2d 581, 590 (9th Cir. 1977). ("All that the Bennett Amendment did was to incorporate the exemptions of the Equal Pay Act into Title VII"). County of Washington v.
Gunther, 602 F.2d 882, 891 (9th Cir. 1979) (quoting Manhart v. City of Los Angeles,
553 F.2d 581, 590 (9th Cir. 1977)). Judge Tang considered 1965 Equal Employment
Opportunity Commission guidelines as consistent with the decision because the
guidelines acknowledged that the Bennett Amendment was designed to avoid con-
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[Vol. 3:221
sized that it was not substituting a comparable worth test5° for the
equal work standard. 5 '
B. Decision
Justice Brennan, writing for the majority in Gunther, held that
a complaint of intentional sex-based wage discrimination in compensation may be brought under Title VII even though the complaint does not involve unequal pay for substantially equal work. 52
In finding the plaintiffs' narrow interpretation of the Bennett
Amendment to be the better view, the Supreme Court held that
Title VII is broader than the Equal Pay Act, and prohibited intentional wage discrimination beyond the stringent equal pay for substantially equal work standard.
The Court based its conclusion on the language of the amendment, the legislative history, and the broad remedial purpose of
the Equal Pay Act and Title VII.
In reviewing the language of the amendment, Justice Brennan
found that the oft-debated word "authorize" 53 could reasonably refer only to the Equal Pay Act, since it usually denotes "affirmative
enabling action". 5 4 It is only the second part of the Equal Pay Act,
listing defenses, and not the first part, defining the violation, that
"authorizes" employers to differentiate on pay. 5 5 In rejecting the
county's contention that this interpretation of the amendment
would render it superfluous, the Court found that in fact the
amendment ensured a consistent interpretation of the two statutes. 56 Though the first three defenses of the Equal Pay Act are
also found in Title VII, the Court concluded that, since the amendflicting interpretations when both statutes applied. "[We hold that Equal Pay Act
standards apply in Title VII suits when plaintiffs raise a claim of equal pay. When
plaintiffs raise a claim under Title VII of discriminatory compensation in the absence
of an allegation that they perform substantially equal work, no conflict with the
Equal Pay Act arises because the Equal Pay Act is inapplicable." 602 F.2d at 891.
50. For analysis of the comparable worth test see note 3 supra.
51. For analysis of the equal work standard see text accompanying notes 16-25
supra.
52. County of Washington v. Gunther, 101 S. Ct. 2242, 2247 (1981).
53. See text accompanying note 37 supra.
54. County of Washington v. Gunther, 101 S. Ct. 2242, 2247 (1981).
55. See note 16 supra for the text of the Equal Pay Act.
56. The amendment was offered as a technical correction to resolve potential
conflicts between Title VII and the Equal Pay Act, two statutes of similar language.
The specific delineation of affirmative defenses will guarantee consistent rulings
among the courts. 101 S. Ct. at 2248. See also note 35 supra.
1981]
EQUAL PAY ACT
ment was of a technical nature, it was the fourth affirmative defense of the more restrictive Equal Pay Act which Congress did not
wish to lose. That defense permits an employer to defend against
charges of discrimination where pay differentials are based on any
other bona-fide factor. Under the Equal Pay Act, a court could not
substitute its judgment of discrimination in the face of the employer's job ruling system so long as the system did not discriminate on
the basis of sex.5 7 The Court seems to be telling management that
this is its defense.
The Court found the legislative background consistent with its
interpretation, and cited selected passages from Senator Bennett's
proposal to support the conclusion. 58 Disregarding the fact that
Senator Bennett had been precluded from any further discussion
by the cloture rule, 59 the Court cited lack of debate, controversy
and opposition as being "more compatible with an interpretation of
the amendment as incorporating the Act's affirmative defenses
."60 The Court's discussion surely indicates that intent to discriminate is a critical element of any claim.
Finally, the Court found that its interpretation supported the
broad remedial purposes of the two statutes. It discussed several
hypothetical situations in which a victim of sex-based wage discrimination would not find redress and concluded that Congress could
not have intended to allow blatant discrimination.61
57. Id. at 2249 (Brennan, J.) (quoting 109 CONG. REC. 9209 (1963) statement of
Senator Charles Goodell (D-N.Y.), the principal proponent of the bill).
58. Id. at 2250.
59. The cloture had been invoked to prevent further filibustering against the
Civil Rights Bill. See COMMITTEE ON RULES AND ADMINISTRATION, 91st CONG., 1st
SESS., SENATE MANUAL CONTAINING THE STANDING RULES, ORDERS, LAWS AND
RESOLUTIONS AFFECTING THE BUSINESS OF THE U.S. SENATE 24-25 (1969).
60. County of Washington v. Gunther, 101 S.Ct. 2242, 2250 (1981).
61. Id. at 2253. Under petitioner's broad reading of the Bennett Amendment,
blatant discriminatory practices could be insulated from redress. The Court noted
three examples:
1. A woman employee could be told her salary would be $50.00 more per week
if she were male. If, however, there were no male holding a similar position, she
would be barred from suit. Id. at 2252.
2. An employer could require its female workers to make higher contributions
than male workers to a pension fund. Only women who held jobs substantially equal
to those of men could bring suit. Thus a female auditor would have a cause of action
while a female secretary would not.Id. at 2253.
3. An employer could use a transparently sex-based system for wage discrimination, yet never be liable if no women held jobs substantially equal to those of men.
By segregating women into all-female jobs, a company could insulate itself from suit.
Id. at 2252.
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Justice Rehnquist's dissent62 accused the majority of fitulty legal analysis and a barely plausible interpretation of the legislative
63
history.
The dissent criticized the majority for not following one of the
traditional canons of statutory construction, the in pan rateria
doctrine, 64 which dictates that the previously enacted, more specific doctrine should govern. 65 Ignoring the more stringent provision of the Equal Pay Act, said the dissent, would amount to its repeal by implication and should not be permitted absent clear
legislative intent. 66 In proposing the amendment, Senator Bennett
was attempting to keep Title VII from rendering the Equal Pay Act
a nullity. Yet under the majority construction, one would expect
plaintiffs to proceed under the broader statute and nullify the
67
Equal Pay Act.
Justice Rehnquist cited extensive legislative history to demonstrate that Congress intended to confine claims of sex-based wage
discrimination to the Equal Pay standard. 68 He pointed to the long
62. Id. at 2254. Justice Rehnquist was joined by the Chief Justice, Justice
Stewart and Justice Powell. "[Tihe flaw with today's decision ... [is that the] legal
analysis is wrong." Id. at 2255. (Rehnquist, J., dissenting).
63. "[TIhe Court conveniently and persistently ignores relevant legislative history and instead relies wholly on what it believes Congress should have enacted."
Id.
64. Sutherland in his treatise on statutory construction defines the context in
which in pari materia applies:
Statutes are to be considered in pari materia ... when they relate to the
same person or thing, or to the same class of persons or things, or have the
same purpose or object. As between characterization of the subject matter
with which a statute deals and characterization of its object or purpose, the
latter appears to be the more important factor in determining whether different statutes are closely enough related to justify interpreting one in light of
another.
J. SUTHERLAND, 2A STATUTORY CONSTRUCTION § 51.03, at 298 (4th ed. 1973).
65. 101 S.Ct. at 2255.
66. Id.1 at 2258.
67. Id. at 2260. Justice Rehnquist maintained:
It is obvious that the principal way in which the Equal Pay Act could be
"nullified" would be to allow plaintiffs unable to meet the "equal pay for
equal work" standard to proceed under Title VII asserting some other
theory of wage discrimination, such as "comparable worth." If plaintiffs can
proceed under Title VII without showing that they satisfy the "equal work"
criterion of the Equal Pay Act, one would expect all plaintiffs to file suit under the "broader" Title VII standard. Such a result would, for all practical
purposes, constitute an implied repeal of the equal work standard of the
Equal Pay Act and render that Act a nullity.
68. Id. at 2257.
1981]
EQUAL PAY ACT
debate in which the word "comparable" was finally replaced by
"equal" in the Equal Pay Act in order to narrow the whole concept.69 Justice Rehnquist noted Congress' intent to limit the ability
of the courts and the other government entities to ignore economic
realities or to restructure the American economy by setting
wages. 70 He found it difficult to believe that Congress meant to
71
abandon this act a year later without addressing that intention.
To interpret the Bennett Amendment, Justice Rehnquist
pointed to three sources: statements of Senator Bennett subsequent to the passage of the amendment; 72 comments made to the
House of Representatives by Representative Emanuel Celler
(D-N.Y.), a sponsor of Title VII; 73 and the Equal Employment Opportunity Commission's written guidelines. 74 All clearly state that
69. Id. at 2255-56.
70. Id. at 2257.
71. Id.
72. One year after its passage, Senator Bennett offered a written understanding
of his amendment:
The Amendment therefore means that it is not an unlawful employment
practice: ... (b) to have different standards of compensation for nonexempt
employees, where such differentiation is not prohibited by the Equal Pay
Amendment to the Fair Labor Standards Act.
Simply stated, the [Bennett] Amendment means the discrimination and
compensation on account of sex does not violate Title VII unless it also violates that Equal Pay Act.
Id. at 2260 (quoting 111 CONG. REC. 13359 (1965)) (emphasis supplied by the Court).
73. Id. at 2260 (quoting 111 CONG. REC. 13359 (1965)) (emphasis in original).
After the Senate added the Bennett Amendment to Title VII and sent the bill to the
House of Representatives, Representative Celler set out in the record the understanding of the House that sex-based compensation claims would not satisfy Title
VII unless they met the equal work standards of the Equal Pay Act. He explained
that the Bennett Amendment "provides that compliance with the EPA satisfied the
requirement of the Title barring discrimination because of sex-§ 703(j)." Id. at 2261
(quoting remarks of Representative Emanuel Cellar (D-N.Y.) 110 CONG. REC. 15896
(1964)).
74. The Equal Employment Opportunity Commission was established under
Title VII to develop guidelines and enforce the Act. The Commission's 1965
Guidelines on DiscriminationBecause of Sex explain:
Title VII requires that its provisions be harmonized with the Equal Pay
Act (§ 6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d)) in order to avoid conflicting interpretations or requirements with respect to situations to which both statutes are applicable. Accordingly, the Commission interprets § 703(h) to mean that the standards of "equal pay for equal work"
set forth in the Equal Pay Act for determining what is unlawful discrimination and compensation are applicable to Title VII. However, it is the judgment of the Commission that the employee coverage of the prohibition
against discrimination and compensation because of sex is coextensive with
that of the other prohibitions in § 703 and is not limited by § 703(h) to those
BRIDGEPORT LAW REVIEW
[Vol. 3:221
Congress intended the narrow interpretation to prevail.
Additionally, the dissent criticized the Court for failing to explain why it rejects a comparable worth theory and for withholding
guidelines on what types of employer actions might now offend Title VII. Justice Rehnquist charged that Gunther "will be treated
like a restricted railroad ticket 'good for this day and train only.' "75
Finally, the dissent chided the majority for usurping Congressional power by resting its holding on the belief that any other result would be unacceptable public policy. 76 It dismissed as a "parade of horribles" 7 7 the hypothetical fact patterns which, according
to the majority, could not be remedied by the narrow interpretation. 78
A careful reading, even by one biased against the dissent's result, must conclude that the analysis and quotations bear out their
contention that the Equal Pay Act's provisions were meant to cover
a strict equal pay for equal work standard. 79 The later statements
of Congressman Bennett affirm this.8 0 Though it is fairly clear that
Congress did mean to limit the scope of Title VII to the equal pay
for equal work standard, the mood of 1981 is more responsive to
women's rights. One must remember that the federal laws preventing blatant wage discrimination based on religion, color or sex
are less than twenty years old. s1 As Justice Rehnquist said, "in
reaching the desired result, the Court conveniently and persisrelies wholly
tently ignores relevant legislative history and instead
'8 2
"
enacted.
have
should
Congress
on what it believes
employees covered by the Fair Labor Standards Act.
Id. at 2261 (quoting 29 C.F.R. § 1604.7 (1966)) (emphasis supplied by the Court).
75. Id. at 2255 (Rehnquist J., dissenting) (quoting Smith v. Allwright, 321 U.S.
649, 669 (1944) (Roberts, J., dissenting)).
76. Id. at 2254.
77. Id. at 2264.
78. See note 61 supra.
79.
Id. at 2260-61.
80. See note 73 supra.
81. 101 S. Ct. at 2255 (1981) (Rehnquist, J., dissenting). The Equal Pay Act was
passed in 1963 and the Civil Rights Act in 1964.
82. As an example of just how far the concept of equality of job opportunity has
progressed, printed below is an excerpt from the opinion of the Supreme Court
upholding the denial of admittance of an Illinois woman to the practice of law in that
state.
[T]he civil law, as well as nature herself, has always recognized a wide
difference in the respective spheres and destinies of man and woman. Man
is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for
19811
C.
EQUAL PAY ACT
Impact
Now that it has been clearly established that Title VII applies
to all sex-based discrimination in wages and compensation, and is
not confined solely to claims under the Equal Pay Act, attorneys
bringing comparable worth cases will focus on establishing that Title VII is broad enough to reach a comparable worth situation.
Plaintiffs will frame litigation on this point very narrowly so that
the courts will not be forced to face what they perceive to be the
disruption of the economy. Each new case will be a building block
to a careful whole.
To prevent litigation, an employer will have to assess carefully
all hiring, evaluation and promotion procedures. If a company uses
both an internal job evaluation system and a market analysis sysmany of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of
things, indicates the domestic sphere as that which properly belongs to the
domain and functions of womanhood. The harmony, not to say identity, of
interests and views which belong, or should belong, to the family institution
is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.
It is true that many women are unmarried and not affected by any of the
duties, complications, and incapacities arising out of the married state, but
these are exceptions to the general rule. The paramountdestiny and mission
of woman are to fulfil the noble and benign offices of wife and mother.
This is the law of the Creator. And the rules of civil society must be adapted
to the general constitution of things, and cannot be based upon exceptional
cases.
The humane movements of modem society, which have for their object
the multiplication of avenues for woman's advancement, and of occupations
adapted to her condition and sex, have my heartiest concurrence. But I am
not prepared to say that it is one of her fundamental rights and privileges to
be admitted into every office and position, including those which require
highly special qualifications and demanding special responsibilities. In the
nature of things it is not every citizen of every age, sex, and condition that is
qualified for every calling and position. It is the prerogative of the legislator
to prescribe regulations founded on nature, reason, and experience for the
due admission of qualified persons to professions and callings demanding
special skill and confidence. This fairly belongs to the police power of the
State; and, in my opinion, in view of the peculiar characteristics, destiny,
and mission of woman, it is within the province of the legislature to ordain
what offices, positions, and callings shall be filled and discharged by men,
and shall receive the benefit of those energies and responsibilities, and that
decision and firmness which are presumed to predominate in the sterner
sex.
For these reasons I think that the laws of Illinois now complained of are
not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.
Bradwell v. Illinois, 83 U.S. (16 Wall) 130, 141-42 (1872) (emphasis added).
BRIDGEPORT LAW REVIEW
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tern for designing wage scales, the two figures for any classification
must coincide. An employer will not be able to justify .a higher or
lower wage scale for one group when its own system allocates the
same point total to both jobs. Any job category, which by company
policy is segregated, will be suspect. Any classification which consistently is void of both sexes will lend credibility to an inference of
discrimination.
The Ninth Circuit in Gunther pointed out that problems of
proof may present substantial barriers to establishing this kind of
claim.83 Standards of proof must be carefully developed. The Equal
Employment Opportunity Commission must develop guidelines for
litigation.
In retreating from the rigid equal work for equal pay standard,
the Supreme Court in Gunther took the first step toward a comparable worth standard. When child labor laws were first proposed,
opponents predicted the collapse of the economy,8 4 yet the justice
of the concept prevailed and the economy did not disintegrate. Fifteen years from now we will wonder what the stir was about.
Barbara S. Schadt
83. 623 F.2d 1303, 1314 (9th Cir. 1980). A claimant must demonstrate an intentional sex-based discrimination policy by documenting that an employer knowingly
and overtly depressed the wages of its women employees. A court can infer an intention to discriminate from wide scale job assignments by sex, overt discriminatory remarks by management, and lack of a job evaluation system to justify the disparate
wages. See Taylor v. Charley Bros., 25 F.E.P. Cases 602 (W. D. Pa. 1981) (all-female
sorting department performing similar job function as all-male departments in wholesale grocery firm).
84. Hammer v. Dagenhart, 247 U.S. 251 (1918).