County of Washington v. GuntherAnnotate this Case
452 U.S. 161 (1981)
U.S. Supreme Court
County of Washington v. Gunther, 452 U.S. 161 (1981)
County of Washington v. Gunther
Argued March 23, 1981
Decided June 8, 1981
452 U.S. 161
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
While Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate in his employment practices on the basis of sex, the last sentence of § 703(h) of Title VII (Bennett Amendment) provides that it shall not be an unlawful employment practice for any employer to differentiate upon the basis of sex in determining the amount of its employees' wages if such differentiation is "authorized" by the Equal Pay Act of 1963. The latter Act, 29 U.S.C. § 206(d), prohibits employers from discriminating on the basis of sex by paying lower wages to employees of one sex than to employees of the other for performing equal work,
"except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex."
Respondents, women who were employed as guards in the female section of petitioner county's jail until this section was closed, filed suit under Title VII for backpay and other relief, alleging, inter alia, that they had been paid lower wages than male guards in the male section of the jail and that part of this differential was attributable to intentional sex discrimination, since the county set the pay scale for female guards, but not for male guards, at a level lower than that warranted by its own survey of outside markets and the worth of the jobs. The District Court rejected this claim, ruling as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act. The Court of Appeals reversed.
Held: The Bennett Amendment does not restrict Title VII's prohibition of sex-based wage discrimination to claims for equal pay for "equal work." Rather, claims for sex-based wage discrimination can also be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not exempted under the Equal Pay Act's affirmative defenses as to wage differentials attributable to seniority, merit, quantity or quality of production, or any other factor other than sex. Pp. 452 U. S. 167-181.
(a) The language of the Bennett Amendment -- barring sex-based wage discrimination claims under Title VII where the pay differential is "authorized" by the Equal Pay Act -- suggests an intention to incorporate into Title VII only the affirmative defenses of the Equal Pay Act, not its prohibitory language requiring equal pay for equal work, which language does not "authorize" anything at all. Nor does this construction of the Amendment render it superfluous. Although the first three affirmative defenses are redundant of provisions elsewhere in § 703(h) of Title VII, the Bennett Amendment guarantees a consistent interpretation of like provisions in both statutes. More importantly, incorporation of the fourth affirmative defense could have significant consequences for Title VII litigation. Pp. 452 U. S. 168-171.
(b) The Bennett Amendment's legislative background is fully consistent with this interpretation, and does not support an alternative ruling. Pp. 452 U. S. 171-176.
(c) Although some of the earlier interpretations of the Bennett Amendment by the Equal Employment Opportunity Commission may have supported the view that no claim of sex discrimination in compensation may be brought under Title VII except where the Equal Pay Act's "equal work" standard is met, other Commission interpretations frequently adopted the opposite position. And the Commission, in its capacity as amicus curiae, now supports respondents' position. Pp. 452 U. S. 177-178.
(d) Interpretation of the Bennett Amendment as incorporating only the affirmative defenses of the Equal Pay Act draws additional support from the remedial purposes of the statutes, and interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate, must be avoided. Pp. 452 U. S. 178-180.
(e) The contention that respondents' interpretation of the Bennett Amendment places the pay structure of virtually every employer and the entire economy at risk and subject to scrutiny by the federal courts is inapplicable here. Respondents contend that the county evaluated the worth of their jobs and determined that they should be paid approximately 95% as much as the male officers; that it paid them only about 70% as much, while paying the male officers the full evaluated worth of their jobs; and that the failure of the county to pay respondents the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination. Thus, the suit does not require a court to make its own subjective assessment of the value of the jobs, or to attempt by statistical technique or other method to quantify the effect of sex discrimination on the wage rates. Pp. 452 U. S. 180-181.
602 F.2d 882 and 623 F.2d 1303, affirmed.
BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J., and, STEWART and POWELL, JJ., joined, post, p. 452 U. S. 181.
JUSTICE BRENNAN delivered the opinion of the Court.
The question presented is whether § 703(h) of Title VII of the Civil Rights Act of 1964, 78 Stat. 257, 42 U.S.C. § 2000e-2(h), restricts Title VII's prohibition of sex-based wage discrimination to claims of equal pay for equal work.
This case arises over the payment by petitioner County of Washington, Ore., of substantially lower wages to female
guards in the female section of the county jail than it paid to male guards in the male section of the jail. [Footnote 1] Respondents are four women who were employed to guard female prisoners and to carry out certain other functions in the jail. [Footnote 2] In January, 1974, the county eliminated the female section of the jail, transferred the female prisoners to the jail of a nearby county, and discharged respondents. 20 FEP Cases 788, 790 (Ore.1976).
Respondents filed suit against petitioners in Federal District Court under Title VII, 42 U.S.C. § 2000e et seq., seeking backpay and other relief. [Footnote 3] They alleged that they were paid unequal wages for work substantially equal to that performed by male guards, and in the alternative, that part of the pay differential was attributable to intentional sex discrimination. [Footnote 4] The latter allegation was based on a claim
that, because of intentional discrimination, the county set the pay scale for female guards, but not for male guards, at a level lower than that warranted by its own survey of outside markets and the worth of the jobs.
After trial, the District Court found that the male guards supervised more than 10 times as many prisoners per guard as did the female guards, and that the females devoted much of their time to less valuable clerical duties. It therefore held that respondents' jobs were not substantially equal to those of the male guards, and that respondents were thus not entitled to equal pay. 20 FEP Cases, at 791. The Court of Appeals affirmed on that issue, and respondents do not seek review of the ruling.
The District Court also dismissed respondents' claim that the discrepancy in pay between the male and female guards was attributable in part to intentional sex discrimination. It held as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act of 1963, 29 U.S.C. § 206(d). [Footnote 5] 20 FEP Cases at 791. The court therefore permitted no additional evidence on this claim, and made no findings on whether petitioner county's pay scales for female guards resulted from intentional sex discrimination.
The Court of Appeals reversed, holding that persons alleging sex discrimination "are not precluded from suing under Title VII to protest . . . discriminatory compensation practices" merely because their jobs were not equal to higher paying jobs held by members of the opposite sex. 602 F.2d 882, 891 (CA9 1979), supplemental opinion on denial of rehearing, 623 F.2d 1303, 1313, 1317 (1980). The court remanded to the District Court with instructions to take evidence on respondents' claim that part of the difference between their rate of pay and that of the male guards is attributable to sex
discrimination. We granted certiorari 449 U.S. 950 (1980), and now affirm.
We emphasize at the outset the narrowness of the question before us in this case. Respondents' claim is not based on the controversial concept of "comparable worth," [Footnote 6] under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community. [Footnote 7] Rather, respondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consisting of setting the wage scale for female guards, but not for male guards, at a level lower than its own survey of outside markets and the worth of the jobs warranted. The narrow question in this case is whether such a claim is precluded by the last sentence of § 703(h) of Title VII, called the "Bennett Amendment." [Footnote 8]
Title VII makes it an unlawful employment practice for an employer
"to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ."
42 U.S.C. § 2000e-2(a). The Bennett Amendment to Title VII, however, provides:
"It shall not be an unlawful employment practice under this subchapter 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 206(d) of title 29."
42 U.S.C. § 2000e-2(h). To discover what practices are exempted from Title VII's prohibitions by the Bennett Amendment, we must turn to § 206(d) -- the Equal Pay Act -- which provides in relevant part:
"No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex."
77 Stat. 56, 29 U.S.C. § 206(d)(1). On its face, the Equal Pay Act contains three restrictions pertinent to this case. First, its coverage is limited to those
employers subject to the Fair Labor Standards Act. S.Rep. No. 176, 88th Cong., 1st Sess., 2 (1963). Thus, the Act does not apply, for example, to certain businesses engaged in retail sales, fishing, agriculture, and newspaper publishing. See 29 U.S.C. §§ 203(s), 213(a) (1976 ed. and Supp. III). Second, the Act is restricted to cases involving
"equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."
29 U.S.C. § 206(d)(1). Third, the Act's four affirmative defenses exempt any wage differentials attributable to seniority, merit, quantity or quality of production, or "any other factor other than sex." Ibid.
Petitioners argue that the purpose of the Bennett Amendment was to restrict Title VII sex-based wage discrimination claims to those that could also be brought under the Equal Pay Act, and thus that claims not arising from "equal work" are precluded. Respondents, in contrast, argue that the Bennett Amendment was designed merely to incorporate the four affirmative defenses of the Equal Pay Act into Title VII for sex-based wage discrimination claims. Respondents thus contend that claims for sex-based wage discrimination can be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not based on seniority, merit, quantity or quality of production, or "any other factor other than sex." The Court of Appeals found respondents' interpretation the "more persuasive." 623 F.2d at 1311. While recognizing that the language and legislative history of the provision are not unambiguous, we conclude that the Court of Appeals was correct.
The language of the Bennett Amendment suggests an intention to incorporate only the affirmative defenses of the Equal Pay Act into Title VII. The Amendment bars sex-based wage discrimination claims under Title VII where the
pay differential is "authorized" by the Equal Pay Act. Although the word "authorize" sometimes means simply "to permit," it ordinarily denotes affirmative enabling action. Black's Law Dictionary 122 (5th ed.1979) defines "authorize" as "[t]o empower; to give a right or authority to act." [Footnote 9] Cf. 18 U.S.C. § 1905 (prohibiting the release by federal employees of certain information "to any extent not authorized by law"); 28 U.S.C. § 1343 (1976 ed., Supp. III) (granting district courts jurisdiction over "any civil action authorized by law"). The question, then, is what wage practices have been affirmatively authorized by the Equal Pay Act.
The Equal Pay Act is divided into two parts: a definition of the violation, followed by four affirmative defenses. The first part can hardly be said to "authorize" anything at all: it is purely prohibitory. The second part, however, in essence "authorizes" employers to differentiate in pay on the basis of seniority, merit, quantity or quality of production, or any other factor other than sex, even though such differentiation might otherwise violate the Act. It is to these provisions, therefore, that the Bennett Amendment must refer.
Petitioners argue that this construction of the Bennett Amendment would render it superfluous. See United States v. Mensche,348 U. S. 528, 348 U. S. 538-539 (1955). Petitioners claim that the first three affirmative defenses are simply redundant of the provisions elsewhere in § 703(h) of Title VII that already exempt bona fide seniority and merit systems and systems measuring earnings by quantity or quality of production, [Footnote 10] and that the fourth defense -- "any other
factor than sex" -- is implicit in Title VII's general prohibition of sex-based discrimination.
We cannot agree. The Bennett Amendment was offered a "technical amendment" designed to resolve any potential conflicts between Title VII and the Equal Pay Act. See infra at 452 U. S. 173. Thus, with respect to the first three defenses, the Bennett Amendment has the effect of guaranteeing that courts and administrative agencies adopt a consistent interpretation of like provisions in both statutes. Otherwise, they might develop inconsistent bodies of case law interpreting two sets of nearly identical language.
More importantly, incorporation of the fourth affirmative defense could have significant consequences for Title VII litigation. Title VII's prohibition of discriminatory employment practices was intended to be broadly inclusive, proscribing "not only overt discrimination, but also practices that are fair in form, but discriminatory in operation." Griggs v. Duke Power Co.,401 U. S. 424, 401 U. S. 431 (1971). The structure of Title VII litigation, including presumptions, burdens of proof, and defenses, has been designed to reflect this approach. The fourth affirmative defense of the Equal Pay Act, however, was designed differently, to confine the application of the Act to wage differentials attributable to ex discrimination. H.R.Rep. No. 309, 88th Cong., 1st Sess., 3 (1963). Equal Pay Act litigation, therefore, has been structured to permit employers to defend against charges of discrimination where their pay differentials are based on a bona fide use of "other factors other than sex." [Footnote 11] Under the Equal
Pay Act, the courts and administrative agencies are not permitted to "substitute their judgment for the judgment of the employer . . . who [has] established and applied a bona fide job rating system," so long as it does not discriminate on the basis of sex. 109 Cong.Rec. 929 (1963) (statement of Rep. Goodell, principal exponent of the Act). Although we do not decide in this case how sex-based wage discrimination litigation under Title VII should be structured to accommodate the fourth affirmative defense of the Equal Pay Act, seen 8, supra, we consider it clear that the Bennett Amendment, under this interpretation, is not rendered superfluous.
We therefore conclude that only differentials attributable to the four affirmative defenses of the Equal Pay Act are "authorized" by that Act within the meaning of § 703(h) of Title VII.
The legislative background of the Bennett Amendment is fully consistent with this interpretation.
Title VII was the second bill relating to employment discrimination to be enacted by the 88th Congress. Earlier, the same Congress passed the Equal Pay Act "to remedy what was perceived to be a serious and endemic problem of [sex-based] employment discrimination in private industry," Corning Glass Works v. Brennan,417 U. S. 188, 417 U. S. 195 (1974). Any possible inconsistency between the Equal Pay
Act and Title VII did not surface until late in the debate over Title VII in the House of Representatives, because, until then, Title VII extended only to discrimination based on race, color religion, or national origin, see H.R.Rep. No. 914, 88th Cong., 1st Sess., 10 (1963), while the Equal Pay Act applied only to sex discrimination. Just two days before voting on Title VII, the House of Representatives amended the bill to proscribe sex discrimination, but did not discuss the implications of the overlapping jurisdiction of Title VII, as amended, and the Equal Pay Act. See 110 Cong.Rec. 2577-2584 (1964). The Senate took up consideration of the House version of the Civil Rights bill without reference to any committee. Thus, neither House of Congress had the opportunity to undertake formal analysis of the relation between the two statutes. [Footnote 12]
Several Senators expressed concern that insufficient attention had been paid to possible inconsistencies between the statutes. See id. at 7217 (statement of Sen. Clark); id. at 13647 (statement of Sen. Bennett). In an attempt to rectify the problem, Senator Bennett proposed his amendment. Id. at 13310. The Senate leadership approved the proposal as a "technical amendment" to the Civil Rights bill, and it was taken up on the floor on June 12, 1964, after cloture had been invoked. The Amendment engendered no controversy, and passed without recorded vote. The entire discussion comprised a few short statements:
"Mr. BENNETT. Mr. President, after many years of yearning by members 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 understand [sic], 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."
Id. at 13647.
As this discussion shows, Senator Bennett proposed the Amendment because of a general concern that insufficient attention had been paid to the relation between the Equal Pay Act and Title VII, rather than because of a specific potential conflict between the statutes. [Footnote 13] His explanation that the Amendment assured that the provisions of the Equal Pay Act "shall not be nullified" in the event of conflict with Title VII may be read as referring to the affirmative defenses of the Act. Indeed, his emphasis on the "technical" nature of the Amendment and his concern for not disrupting the "effective
administration" of the Equal Pay Act are more compatible with an interpretation of the Amendment as incorporating the Act's affirmative defenses, as administratively interpreted, than as engrafting all the restrictive features of the Equal Pay Act onto Title VII. [Footnote 14]
Senator Dirksen's comment that all that the Bennett Amendment does is to "recognize" the exceptions carried in the Fair Labor Standards Act, suggests that the Bennett Amendment was necessary because of the exceptions to coverage in the Fair Labor Standards Act, which made the Equal Pay Act applicable to a narrower class of employers than was Title VII. See supra at 452 U. S. 167-168. The Bennett Amendment clarified that the standards of the Equal Pay Act would govern even those wage discrimination cases where only Title VII would otherwise apply. So understood, Senator Dirksen's remarks are not inconsistent with our interpretation. [Footnote 15]
Although there was no debate on the Bennett Amendment in the House of Representatives when the Senate version of the Act returned for final approval, Representative Celler explained each of the Senate's amendments immediately prior to the vote. He stated that the Bennett Amendment "[p]rovides that compliance with the Fair Labor Standards Act as amended satisfies the requirement of the title barring discrimination because of sex. . . ." 110 Cong.Rec. 15896 (1964). If taken literally, this explanation would restrict Title VII's coverage of sex discrimination more severely than even petitioners suggest: not only would it confine wage discrimination claims to those actionable under the Equal Pay Act, but it would block all other sex discrimination claims as well. We can only conclude that Representative Celler's explanation was not intended to be precise, and does not provide a solution to the present problem. [Footnote 16]
Thus, although the few references by Members of Congress to the Bennett Amendment do not explicitly confirm that its purpose was to incorporate into Title VII the four affirmative defenses of the Equal Pay Act in sex-based wage discrimination cases, they are broadly consistent with such a reading, and do not support an alternative reading.
The interpretations of the Bennett Amendment by the agency entrusted with administration of Title VII -- the Equal Employment Opportunity Commission -- do not provide much guidance in this case. Cf. Griggs v. Duke Power Co., 401 U.S. at 433 U. S. 433-434. The Commission's 1965 Guidelines on Discrimination Because of Sex stated that
"the standards of 'equal pay for equal work' set forth in the Equal Pay Act for determining what is unlawful discrimination in compensation are applicable to Title VII."
29 CFR § 1604.7(a) (1966). In 1972, the EEOC deleted this portion of the Guideline, see 37 Fed.Reg. 6837 (1972). Although the original Guideline may be read to support petitioners' argument that no claim of sex discrimination in compensation may be brought under Title VII except where the Equal Pay Act's "equal work" standard is met, EEOC practice under this Guideline was considerably less than steadfast.
The restrictive interpretation suggested by the 1965 Guideline was followed in several opinion letters in the following years. [Footnote 17] During the same period, however, EEOC decisions frequently adopted the opposite position. For example, a reasonable cause determination issued by the Commission in 1968 stated that
"the existence of separate and different wage rate schedules for male employees on the one hand, and female employees, on the other, doing reasonably comparable work, establishes discriminatory wage rates based solely on the sex of the workers."
Harrington v. Picadilly Cafeteria, Case No. AU 7-3-173 (Apr. 25, 1968). [Footnote 18]
The current Guideline does not purport to explain whether the equal work standard of the Equal Pay Act has any application to Title VII, see 29 CFR § 1604.8 (1980), but the EEOC now supports respondents' position in its capacity as amicus curiae. In light of this history, we feel no hesitation in adopting what seems to us the most persuasive interpretation of the Amendment in lieu of that once espoused, but not consistently followed, by the Commission.
Our interpretation of the Bennett Amendment draws additional support from the remedial purposes of Title VII and the Equal Pay Act. Section 703(a) of Title VII makes it unlawful for an employer
"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 sex. 42 U.S.C. § 2000e-2(a) (emphasis added). As Congress itself has indicated, a "broad approach" to the definition of equal employment opportunity is essential to overcoming and undoing the effect of discrimination. S.Rep. No. 867, 88th Cong., 2d Sess., 12 (1964). We must therefore avoid interpretations of Title VII that deprive victims of discrimination of a remedy without clear congressional mandate.
Under petitioners' reading of the Bennett Amendment, only those sex-based wage discrimination claims that satisfy the "equal work" standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief -- no matter how egregious the discrimination might be -- unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if
an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioners' interpretation. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination. Moreover, to cite an example arising from a recent case, Los Angeles Dept. of Water & Power v. Manhart,435 U. S. 702 (1978), if the employer required its female workers to pay more into its pension program than male workers were required to pay, the only women who could bring a Title VII action under petitioners' interpretation would be those who could establish that a man performed equal work: a female auditor thus might have a cause of action, while a female secretary might not. Congress surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII. [Footnote 19]
Moreover, petitioners' interpretation would have other far-reaching consequences. Since it rests on the proposition that any wage differentials not prohibited by the Equal Pay Act are "authorized" by it, petitioners' interpretation would lead to the conclusion that discriminatory compensation by employers not covered by the Fair Labor Standards Act is "authorized" -- since not prohibited -- by the Equal Pay Act. Thus, it would deny Title VII protection against sex-based wage discrimination by those employers not subject to the Fair Labor Standards Act but covered by Title VII. See supra at 452 U. S. 167-168. There is no persuasive evidence that Congress
intended such a result, and the EEOC has rejected it since at least 1965. See 29 CFR § 1604.7 (1966). Indeed petitioners themselves apparently acknowledge hat Congress intended Title VII's broader coverage to apply to equal pay claims under Title VII, thus impliedly admitting the fallacy in their own argument. Brief for Petitioners 48.
Petitioners' reading is thus flatly inconsistent with our past interpretations of Title VII as
"prohibib[ing] all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin."
"In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes."
(Emphasis added.) We must therefore reject petitioners' interpretation of the Bennett Amendment.
Petitioners argue strenuously that the approach of the Court of Appeals places "the pay structure of virtually every employer and the entire economy . . . at risk and subject to scrutiny by the federal courts." Brief for Petitioners 99-100. They raise the specter that
"Title VII plaintiffs could draw any type of comparison imaginable concerning job duties and pay between any job predominantly performed by women and any job predominantly performed by men."
Id. at 101. But whatever the merit of petitioners' arguments in other contexts, they are inapplicable here, for claims based on the type of job comparisons petitioners describe are manifestly different from respondents' claim. Respondents contend that the County of Washington evaluated the worth of their jobs; that the county determined that they should be paid approximately 95% as much as the male correctional officers; that it paid them only about 70% as much, while paying the male
officers the full evaluated worth of their jobs; and that the failure of the county to pay respondents the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination. Thus, respondents' suit does not require a court to make its own subjective assessment of the value of the male and female guard jobs, or to attempt by statistical technique or other method to quantify the effect of sex discrimination on the wage rates. [Footnote 20]
We do not decide in this case the precise contours of lawsuits challenging sex discrimination in compensation under Title VII. It is sufficient to note that respondents' claims of discriminatory undercompensation are not barred by § 73(h) of Title VII merely because respondents do not perform work equal to that of male jail guards. The judgment of the Court of Appeals is therefore
Prior to February 1, 1973, the female guards were paid between $476 and $606 per month, while the male guards were paid between $668 and $853. Effective February 1, 1973, the female guards were paid between $525 and $668, while salaries for male guards ranged from $701 to $940. 20 FEP Cases 788, 789 (Ore.1976).
Oregon requires that female inmates be guarded solely by women, Ore.Rev.Stat. §§ 137.350, 137.360 (1979), and the District Court opinion indicates that women had not been employed to guard male prisoners. 20 FEP Cases, at 789, 792, nn. 8, 9. For purposes of this litigation, respondents concede that gender is a bona fide occupational qualification for some of the female guard positions. See 42 U.S.C. § 2000e-2(e)(1), Dothard v. Rawlinson,433 U. S. 321 (1977).
Respondents could not sue under the Equal Pay Act because the Equal Pay Act did not apply to municipal employees until passage of the Fair Labor Standards Amendments of 1974, 88 Stat. 55, 58-62. Title VII has applied to such employees since passage of the Equal Employment Opportunity Act of 1972, § 2(1), 86 Stat. 103.
Respondents also contended that they were discharged and not rehired in retaliation for their demands for equal pay. Respondent Vander Zanden also contended that she was denied medical leave in retaliation for such demands. The District Court rejected those contentions, and the Court of Appeals affirmed. Those claims are not before this Court.
See infra at 452 U. S. 168.
The concept of "comparable worth" has been the subject of much scholarly debate, as to both its elements and its merits as a legal or economic principle. See, e.g., E. Livernash, Comparable Worth: Issues and Alternatives (1980); Blumrosen, Wage Discrimination, Job Segregation, and Title VII of the Civil Rights Act of 1964, 12 U.Mich.J.L.Ref. 397 (1979); Nelson, Opton, Wilson, Wage Discrimination and the "Comparable Worth" Theory in Perspective, 13 U.Mich.J.L.Ref. 231 (1980). The Equal Employment Opportunity Commission has conducted hearings on the question, see BNA Daily Labor Report Nos. 83-85 (Apr. 28-30, 1980), and has commissioned a study of job evaluation systems, see D. Treiman, Job Evaluation: An Analytic Review (1979) (interim report).
Respondents thus distinguish Lemons v. City and County of Denver, 620 F.2d 228 (CA10), cert. denied, 449 U.S. 888 (1980), on the ground that the plaintiffs, nurses employed by a public hospital, sought increased compensation on the basis of a comparison with compensation paid to employees of comparable value -- other than nurses -- in the community, without direct proof of intentional discrimination.
We are not called upon in this case to decide whether respondents have stated a prima facie case of sex discrimination under Title VII, cf. Christensen v. Iowa, 563 F.2d 353 (CA8 1977), or to lay down standards for the further conduct of this litigation. The sole issue we decide is whether respondents' failure to satisfy the equal work standard of the Equal Pay Act, in itself, precludes their proceeding under Title VII.
Similarly, Webster's Third New International Dictionary 147 (1976) states that the word "authorize" "indicates endowing formally with a power or right to act, usu. with discretionary privileges." (Examples deleted.)
Section 703(h), as set forth in 42 U.S.C. § 2000e-2(h), provides in relevant part:
"Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to a bona fide seniority or merit system, or a system which measures earnings by quantity or quality of production . . . provided that such differences are not the result of an intention to discriminate because of . . . sex. . . ."
The legislative history of the Equal Pay Act was examined by this Court in Corning Glass Works v. Brennan,417 U. S. 188, 417 U. S. 198-201 (1974). The Court observed that earlier versions of the Equal Pay bill were amended to define equal work and to add the fourth affirmative defense because of a concern that bona fide job evaluation systems used by American businesses would otherwise be disrupted. Id. at 410 U. S. 199-201. This concern is evident in the remarks of many legislators. Representative Griffin, for example, explained that the fourth affirmative defense is a "broad principle," which "makes clear and explicitly states that a differential based on any factor or factors other than sex would not violate this legislation." 109 Cong.Rec. 9203 (1963). See also id. at 9196 (remarks of Rep. Frelinghuysen); id. at 9197-9198 (remarks of Rep. Griffin); ibid., (remarks of Rep. Thompson); id. at 9198 (remarks of Rep. Goodell); id. at 9202 (remarks of Rep. Kelly); id. at 9209 (remarks of Rep. Goodell), id. at 9217 (remarks of Reps. Pucinski and Thompson).
To answer certain objections raised by Senators concerning the House version of the Civil Rights bill, Senator Clark, principal Senate spokesman for Title VII, drafted a memorandum, printed in the Congressional Record. One such objection and answer concerned the relation between Title VII and the Equal Pay Act:
"Objection: The sex antidiscrimination provisions of the bill duplicate the coverage of the Equal Pay Act of 1963. But more than this, they extend far beyond the scope and coverage of the Equal Pay Act. They do not include the limitations in that act with respect to equal work on jobs requiring equal skills in the same establishments, and thus, cut across different jobs."
"Answer: The Equal Pay Act is a part of the wage hour law, with different coverage and with numerous exemptions unlike title VII. Furthermore, under title VII, jobs can no longer be classified as to sex, except where there is a rational basis for discrimination on the ground of bona fide occupational qualification. The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under title VII."
110 Cong.Rec. 7217 (1964) . This memorandum constitutes the only formal discussion of the relation between the statutes prior to consideration of the Bennett Amendment. It need not concern us here, because it relates to Title VII before it was amended by the Bennett Amendment. The memorandum obviously has no bearing on the meaning of the terms of the Bennett Amendment itself.
The dissent finds it "obvious" that the "principal way" the Equal Pay Act might have been "nullified" by enactment of Title VII is that the "equal pay for equal work standard" would not apply under Title VII. Post at 452 U. S. 193. There is, however, no support for this conclusion in the legislative history: not one Senator or Congressman discussing the Bennett Amendment during the debates over Title VII so much as mentioned the "equal pay for equal work" standard. Rather, Senator Bennett's expressed concern was for preserving the "programs" that had "been established for the effective administration" of the Equal Pay Act. 110 Cong.Rec. 13647 (1964). This suggests that the focus of congressional concern was on administrative interpretation and enforcement procedures, rather than on the "equal work" limitation.
The argument in the dissent that under our interpretation, the Equal Pay Act would be impliedly repealed and rendered a nullity, post at 452 U. S. 193, is mistaken. Not only might the substantive provisions of the Equal Pay Act's affirmative defenses affect the outcome of some Title VII sex-based wage discrimination cases, see supra at 452 U. S. 170-171, but the procedural characteristics of the Equal Pay Act also remain significant. For example, the statute of limitations for backpay relief is more generous under the Equal Pay Act than under Title VII, and the Equal Pay Act, unlike Title VII, has no requirement of filing administrative complaints and awaiting administrative conciliation efforts. Given these advantages, many plaintiffs will prefer to sue under the Equal Pay Act, rather than Title VII. See B. Babcock, A. Freedman, E. Norton, & S. Ross, Sex Discrimination and the Law 507 (1975).
In an exchange during the debate on Title VII, Senator Randolph asked Senator Humphrey whether certain differences in treatment in industrial retirement plans, including earlier retirement options for women, would be permissible. Senator Humphrey responded: "Yes. That point was made unmistakably clear earlier today by the adoption of the Bennett amendment; so there can be no doubt about it." 110 Cong.Rec. 13663-13664 (1964). Apparently, Senator Humphrey believed that the discriminatory provisions to which Senator Randolph referred were authorized by the Equal Pay Act. His answer does not reveal whether he believed such plans to fall within one of the affirmative defenses of the Act, or whether they simply did not violate the Act.
The parties also direct our attention to several comments by Members and Committees of Congress made after passage of Title VII. See 111 Cong.Rec. 13359 (1965) (statement by Senator Bennett that "compensation on account of sex does not violate title VII unless it also violates the Equal Pay Act"); id. at 18263 (statement by Senator Clark criticizing Senator Bennett's attempt to create post hoc legislative history and adding his own interpretation); S.Rep. No. 95-331, p. 7 (1977) (stating that the Bennett Amendment authorizes only those practices within the four affirmative defenses of the Equal Pay Act).
We are normally hesitant to attach much weight to comments made after the passage of legislation. See Teamsters v. United States,431 U. S. 324, 431 U. S. 354, n. 39 (1977). In view of the contradictory nature of these cited statements, we give them no weight at all.
See General Counsel's opinion of December 29, 1965, App. to Brief for Petitioners 7a; General Counsel's opinion of May 4, 1966, id. at 11a-13a; Commissioner's opinion of July 23, 1966, id. at 16a, BNA Daily Labor Report No. 171, pp. A-3 to A-4 (Sept. 1, 1966); Acting General Counsel's Memorandum of June 6, 1967, App. to Brief for Petitioners 21a-22a .
See also Dec. No. 6-6-5762, CCH EEOC Decisions (1973)
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