Male employees at the Corning Glass Works (Corning) previously
performed night shift inspection and were paid more than females,
who performed the day shift inspection. A plant-wide shift
differential that subsequently came with unionization was
superimposed on the existing base-wage difference between male
night inspectors and female day inspectors. Thereafter, beginning
June 1, 1966, Corning began to open up night shift jobs for women,
who, on an equal seniority basis with men, were able to bid for the
higher paid night inspection jobs as vacancies occurred. On January
20, 1969, a new "job evaluation" system for setting wage rates took
effect, under which all subsequently hired inspectors were to
receive the same base wage (which was higher than the previous
night shift rate) regardless of sex or shift. Employees hired
before that date, however, when working night shift, were to
continue to receive a higher ("red circle") rate, thus perpetuating
the previous differential in base pay between day and night
inspectors. The Secretary of Labor brought these actions for
backpay and injunctive relief against Corning, claiming that
violations of the Equal Pay Act of 1963 had occurred at its
Corning, N.Y. (No. 73-29), and Wellsboro, Pa. (No. 73-695), plants.
In No. 73-29, the District Court granted relief, and the Court of
Appeals for the Second Circuit affirmed, concluding that Corning's
practice violated the Act, while the District Court in No. 73-695
held that the Act had not been violated, and the Court of Appeals
for the Third Circuit affirmed. In order to establish a violation
of the Act, it must be shown that an employer pays different wages
to employees of opposite sexes
"for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under
similar working conditions, "
Page 417 U. S. 189
except where the difference in payment is made pursuant to a
seniority or merit system or one measuring earnings by quantity or
quality of production, or where the differential is "based on any
other factor other than sex."
Held:
1. Corning violated the Act during the period from its effective
date to June, 1966. Pp.
417 U. S.
195-205.
(a) The statutory term "working conditions," as is clear from
the Act's legislative history, encompasses only physical
surroundings and hazards, and not the time of day worked. Pp.
417 U. S.
197-204.
(b) The record amply supports the conclusion of the District
Court in No. 73-29 that Corning had not sustained its burden of
proof that the higher base wage for pre-June 1966 all-male night
inspection work was, in fact, intended to serve as added
compensation for night work, and thus was based on a "factor other
than sex." Substantial evidence showed that the differential arose
simply because men would not work at the low rates paid women
inspectors, and reflected a job market in which Corning could pay
women less than men for the same work. Pp.
417 U. S.
204-205.
2. Corning did not cure its violation in June, 1966, by
permitting women to work as night shift inspectors, since the
violation could not have been cured except by equalizing the base
wages of female day inspectors with the higher rates paid the night
inspectors. Pp.
417 U. S.
205-208.
3. The violation was not cured in 1969, when Corning equalized
day and night inspector wage rates, since the "red circle" rate
perpetuated the discrimination. Pp.
417 U. S.
208-210.
No. 73-29, 474 F.2d 226, affirmed; No. 73-695, 480 F.2d 1254,
reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, WHITE, and POWELL, JJ., joined. BURGER, C.J., and
BLACKMUN and REHNQUIST, JJ., filed a dissenting statement,
post, p.
417 U. S. 210.
STEWART, J., took no part in the consideration or decision of the
cases.
Page 417 U. S. 190
MR. JUSTICE MARSHALL delivered the opinion of the Court.
These cases arise under the Equal Pay Act of 1963, 77 Stat. 56,
§ 3, 29 U.S.C. § 206(d)(1), [
Footnote 1] which added to § 6 of the Fair Labor Standards
Act of 1938 the principle of equal pay for equal work regardless of
sex. The principal question posed is whether Corning Glass Works
violated the Act by paying a higher base wage to male night shift
inspectors than it paid to female inspectors performing the same
tasks on the day shift, where the higher wage was paid in addition
to a separate night shift differential paid to all employees for
night work. In No. 73-29, the Court of Appeals for the Second
Circuit, in a case involving several Corning plants in Corning, New
York, held that this practice violated
Page 417 U. S. 191
the Act. 474 F.2d 226 (1973). In No. 73-695, the Court of
Appeals for the Third Circuit, in a case involving a Corning plant
in Wellsboro, Pennsylvania, reached the opposite conclusion. 480
F.2d 1254 (1973). We granted certiorari and consolidated the cases
to resolve this unusually direct conflict between two circuits. 414
U.S. 1110 (1973). Finding ourselves in substantial agreement with
the analysis of the Second Circuit, we affirm in No. 73-29 and
reverse in No. 73-695.
I
Prior to 1925, Corning operated its plants in Wellsboro and
Corning only during the day, and all inspection work was performed
by women. Between 1925 and 1930, the company began to introduce
automatic production equipment which made it desirable to institute
a night shift. During this period, however, both New York and
Pennsylvania law prohibited women from working at night. [
Footnote 2] As a result, in order to
fill inspector positions on the new night shift, the company had to
recruit male employees from among its male dayworkers. The male
employees so transferred demanded and received wages substantially
higher than those paid to women inspectors engaged on the two day
shifts. [
Footnote 3] During
this same period, however,
Page 417 U. S. 192
no plant-wide shift differential existed, and male employees
working at night, other than inspectors, received the same wages as
their day shift counterparts. Thus, a situation developed where the
night inspectors were all male, [
Footnote 4] the day inspectors all female, and the male
inspectors received significantly higher wages.
In 1944, Corning plants at both locations were organized by a
labor union and a collective bargaining agreement was negotiated
for all production and maintenance employees. This agreement for
the first time established a plant-wide shift differential,
[
Footnote 5] but this change
did not eliminate the higher base wage paid to male night
inspectors. Rather, the shift differential was superimposed on the
existing difference in base wages between male night inspectors and
female day inspectors.
Prior to June 11 1964, the effective date of the Equal Pay Act,
[
Footnote 6] the law in both
Pennsylvania and New York
Page 417 U. S. 193
was amended to permit women to work at night. [
Footnote 7] It was not until some time after
the effective date of the Act, however, that Corning initiated
efforts eliminate
Page 417 U. S. 194
the differential rates for male and female inspectors. Beginning
in June 1966, Corning started to open up jobs on the night shift to
women. Previously separate male and female seniority lists were
consolidated and women became eligible to exercise their seniority,
on the same basis as men, to bid for the higher paid night
inspection jobs as vacancies occurred.
On January 20, 1969, a new collective bargaining agreement went
into effect, establishing a new "job evaluation" system for setting
wage rates. The new agreement abolished for the future the separate
base wages for day and night shift inspectors and imposed a uniform
base wage for inspectors exceeding the wage rate for the night
shift previously in effect. All inspectors hired after January 20,
1969, were to receive the same base wage, whatever their sex or
shift. The collective bargaining agreement further provided,
however, for a higher "red circle" rate for employees hired prior
to January 20, 1969, when working as inspectors on the night shift.
This "red circle" rate served essentially to perpetuate the
differential in base wages between day and night inspectors.
The Secretary of Labor brought these cases to enjoin Corning
from violating the Equal Pay Act [
Footnote 8] and to collect back wages allegedly due female
employees because of past violations. Three distinct questions are
presented:
Page 417 U. S. 195
(1) did Corning ever violate the Equal Pay Act by paying male
night shift inspectors more than female day shift inspectors? (2)
if so, did Corning cure its violation of the Act in 1966 by
permitting women to work as night shift inspectors? (3) finally, if
the violation was not remedied in 1966, did Corning cure its
violation in 1969 by equalizing day and night inspector wage rates
but establishing higher "red circle" rates for existing employees
working on the night shift?
II
Congress' purpose in enacting the Equal Pay Act was to remedy
what was perceived to be a serious and endemic problem of
employment discrimination in private industry -- the fact that the
wage structure of
"many segments of American industry has been based on an ancient
but outmoded belief that a man, because of his role in society,
should be paid more than a woman even though his duties are the
same."
S.Rep. No. 176, 88th Cong., 1st Sess. 1 (1963). The solution
adopted was quite simple in principle: to require that "equal work
will be rewarded by equal wages."
Ibid.
The Act's basic structure and operation are similarly
straightforward. In order to make out a case under the Act, the
Secretary must show that an employer pays different wages to
employees of opposite sexes
"for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under
similar working conditions."
Although the Act is silent on this point, its legislative
history makes plain that the Secretary has the burden of proof on
this issue, [
Footnote 9] as
both of the courts below recognized. [
Footnote 10]
Page 417 U. S. 196
The Act also establishes four exception -- three specific and
one a general catchall provision -- where different payment to
employee of opposite sexes
"is made pursuant to (i) a seniority system; (ii) a merit
system; (iii) a system which measures earning by quantity or
quality of production; or (iv) a differential based on any other
factor other than sex."
Again, while the Act is silent on this question, its structure
and history also suggest that, once the Secretary has carried his
burden of showing that the employer pays workers of one sex more
than workers of the opposite sex for equal work, the burden shifts
to the employer to show that the differential is justified under
one of the Act's four exceptions. All of the many lower courts that
have considered this question have so held, [
Footnote 11] and this view is consistent with
the general rule that the application of an exemption under the
Fair Labor
Page 417 U. S. 197
Standards Act is a matter of affirmative defense on which the
employer has the burden of proof. [
Footnote 12]
The contentions of the parties in this case reflect the Act's
underlying framework. Corning argues that the Secretary has failed
to prove that Corning ever violated the Act because day shift work
is not "performed under similar working conditions" as night shift
work. The Secretary maintains that day shift and night shift work
are performed under "similar working conditions" within the meaning
of the Act. [
Footnote 13]
Although the Secretary recognizes that higher wages may be paid for
night shift work, the Secretary contends that such a shift
differential would be based upon a "factor other than sex" within
the catchall exception to the Act, and that Corning has failed to
carry its burden of proof that its higher base wage for male night
inspectors was, in fact, based on any factor other than sex.
The courts below relied in part on conflicting statements in the
legislative history having some bearing on
Page 417 U. S. 198
this question of statutory construction. The Third Circuit found
particularly significant a statement of Congressman Goodell, a
sponsor of the Equal Pay bill, who, in the course of explaining the
bill on the floor of the House, commented that
"standing, as opposed to sitting, pleasantness or unpleasantness
of surroundings, periodic rest periods, hours of work,
difference in shift, all would logically fall within the
working condition factor."
109 Cong.Rec. 9209 (1963) (emphasis added). The Second Circuit,
in contrast, relied on a statement from the House Committee Report
which, in describing the broad general exception for differentials
"based on any other factor other than sex," stated: "Thus, among
other things, shift differentials . . . would also be excluded. . .
." H.R.Rep. No. 309, 88th Cong., 1 st Sess., 3 (1963).
We agree with Judge Friendly, however, that, in this case, a
better understanding of the phrase "performed under similar working
conditions" can be obtained from a consideration of the way in
which Congress arrived at the statutory language than from trying
to reconcile or establish preferences between the conflicting
interpretations of the Act by individual legislators or the
committee reports. As Mr. Justice Frankfurter remarked in an
earlier case involving interpretation of the Fair Labor Standards
Act,
"regard for the specific history of the legislative process that
culminated in the Act now before us affords more solid ground for
giving it appropriate meaning."
United States v. Universal C.I.T. Credit Corp.,
344 U. S. 218,
344 U. S. 222
(1952).
The most notable feature of the history of the Equal Pay Act is
that Congress recognized early in the legislative process that the
concept of equal pay for equal work was more readily stated in
principle than reduced to statutory language which would be
meaningful to employers and workable across the broad range of
industries covered
Page 417 U. S. 199
by the Act. As originally introduced, the Equal Pay bill
required equal pay for "equal work on jobs the performance of which
requires equal skills." There were only two exceptions -- for
differentials "made pursuant to a seniority or merit increase
system which does not discriminate on the basis of sex. . . ."
[
Footnote 14]
In both the House and Senate committee hearings, witnesses were
highly critical of the Act's definition of equal work and of its
exemptions. Many noted that most of American industry used formal,
systematic job evaluation plans to establish equitable wage
structures in their plants. [
Footnote 15] Such systems, as explained coincidentally by
a representative of Corning Glass Works who testified at both
hearings, took into consideration four separate factors in
determining job value -- skill, effort, responsibility and working
conditions -- and each of these four components was further
systematically divided into various subcomponents. [
Footnote 16] Under a job evaluation plan,
point values are assigned to each of the subcomponents of a given
job, resulting in a total point figure representing a relatively
objective measure of the job's value.
In comparison to the rather complex job evaluation plans used by
industry, the definition of equal work used in the first drafts of
the Equal Pay bill was criticized as
Page 417 U. S. 200
unduly vague and incomplete. Industry representatives feared
that, as a result of the bill's definition of equal work, the
Secretary of Labor would be cast in the position of second-guessing
the validity of a company's job evaluation system. They repeatedly
urged that the bill be amended to include an exception for job
classification systems, or otherwise to incorporate the language of
job evaluation into the bill. [
Footnote 17] Thus, Corning's own representative
testified:
"Job evaluation is an accepted and tested method of attaining
equity in wage relationship."
"A great part of industry is committed to job evaluation by past
practice and by contractual agreement as the basis for wage
administration."
"'Skill,' alone, as a criterion, fails to recognize other
aspects of the job situation that affect job worth."
"We sincerely hope that this committee in passing legislation to
eliminate wage differences based on sex alone, will recognize in
its language the general role of job evaluation in establishing
equitable rate relationship. [
Footnote 18]"
We think it plain that, in amending the bill's definition of
equal work to its present form, the Congress acted in direct
response to these pleas. Spokesmen for the amended bill stated, for
example, during the House debates:
"The concept of equal pay for jobs demanding equal skill has
been expanded to require also equal effort, responsibility, and
similar working conditions. These factors are the core of all job
classification
Page 417 U. S. 201
systems. They form a legitimate basis for differentials in pay.
[
Footnote 19]"
Indeed, the most telling evidence of congressional intent is the
fact that the Act's amended definition of equal work incorporated
the specific language of the job valuation plan described at the
hearings by Corning's own representative -- that is, the concepts
of "skill," "effort," "responsibility," and "working
conditions."
Congress' intent, as manifested in this history, was to use
these terms to incorporate into the new federal Act the well
defined and well accepted principles of job evaluation so as to
ensure that wage differentials based upon
bona fide job
evaluation plans would be outside the purview of the Act. The House
Report emphasized:
"This language recognizes that there are many factors which may
be used to measure the relationships between jobs and which
establish a valid basis for a difference in pay. These factors will
be found in a majority of the job classification systems. Thus, it
is anticipated that a
bona fide job classification program
that does not discriminate on the basis of sex will serve as a
valid defense to a charge of discrimination."
H.R.Rep. No. 309,
supra, at 3. It is in this light that
the phrase "working conditions" must be understood, for where
Congress has used technical words or terms of art, "it [is] proper
to explain them by reference to the art or science to which they
[are] appropriate."
Greenleaf v. Goodrich, 101 U.
S. 278,
101 U. S. 284
(1880).
See also NLRB v. Highland Park Mfg. Co.,
341 U. S. 322,
341 U. S. 326
(1951) (Frankfurter, J., dissenting). This principle is
particularly salutary where, as
Page 417 U. S. 202
here, the legislative history reveals that Congress incorporated
words having a special meaning within the field regulated by the
statute so as to overcome objections by industry representatives
that statutory definitions were vague and incomplete.
While a layman might well assume that time of day worked
reflects one aspect of a job's "working conditions," the term has a
different and much more specific meaning in the language of
industrial relations. As Corning's own representative testified at
the hearings, the element of working conditions encompasses two
subfactors: "surroundings" and "hazards." [
Footnote 20] "Surroundings" measures the
elements, such as toxic chemicals or fumes, regularly encountered
by a worker, their intensity, and their frequency. "Hazards" takes
into account the physical hazards regularly encountered, their
frequency, and the severity of injury they can cause. This
definition of "working conditions" is not only manifested in
Corning's own job evaluation plans, but is also well accepted
across a wide range of American industry. [
Footnote 21]
Nowhere in any of these definitions is time of day worked
mentioned as a relevant criterion. The fact of the matter is that
the concept of "working conditions," as used in the specialized
language of job evaluation systems, simply does not encompass shift
differentials. Indeed, while Corning now argues that night
inspection work is not equal to day inspection work, all of its own
job evaluation plans, including the one now in effect, have
consistently treated them as equal in all respects,
Page 417 U. S. 203
including working conditions. [
Footnote 22] And Corning's Manager of Job Evaluation
testified in No. 729 that time of day worked was not considered to
be a "working condition." [
Footnote 23] Significantly, it is not the Secretary in
this case who is trying to look behind Corning's
bona fide
job evaluation system to require equal pay for jobs which Corning
has historically viewed as unequal work. Rather, it is Corning
which asks us to differentiate between jobs which the company
itself has always equated. We agree with the Second Circuit that
the inspection work at issue in this case, whether performed during
the day or night, is "equal work" as that term is defined in the
Act. [
Footnote 24]
Page 417 U. S. 204
This does not mean, of course, that there is no room in the
Equal Pay Act for nondiscriminatory shift differentials. Work on a
steady night shift no doubt has psychological and physiological
impacts making it less attractive than work on a day shift. The Act
contemplates that a male night worker may receive a higher wage
than a female day worker, just as it contemplates that a male
employee with 20 years' seniority can receive a higher wage than a
woman with two years' seniority. Factors such as these play a role
under the Act's four exceptions -- the seniority differential under
the specific seniority exception, the shift differential under the
catchall exception for differentials "based on any other factor
other than sex." [
Footnote
25]
The question remains, however, whether Corning carried its
burden of proving that the higher rate paid for night inspection
work, until 1966 performed solely by men, was, in fact, intended to
serve as compensation for night work, or rather constituted an
added payment based upon sex. We agree that the record amply
supports the District Court's conclusion that Corning had not
sustained its burden of proof. [
Footnote 26] As its history revealed,
Page 417 U. S. 205
"the higher night rate was in large part the product of the
generally higher wage level of male workers and the need to
compensate them for performing what were regarded as demeaning
tasks."
474 F.2d at 233. The differential in base wages originated at a
time when no other night employees received higher pay than
corresponding day workers, and it was maintained long after the
company instituted a separate plant-wide shift differential which
was thought to compensate adequately for the additional burdens of
night work. The differential arose simply because men would not
work at the low rates paid women inspectors, and it reflected a job
market in which Corning could pay women less than men for the same
work. That the company took advantage of such a situation may be
understandable as a matter of economics, but its differential
nevertheless became illegal once Congress enacted into law the
principle of equal pay for equal work.
III
We now must consider whether Corning continued to remain in
violation of the Act after 1966 when, without changing the base
wage rates for day and night inspectors, it began to permit women
to bid for jobs on the night shift as vacancies occurred. It is
evident that this was more than a token gesture to end
discrimination, as turnover in the night shift inspection jobs was
rapid. The record in No. 73-29 shows, for example, that, during the
two-year period after June l, 1966, the date women were first
permitted to bid for night inspection jobs, women took 152 of the
278 openings, and women with very little seniority were able to
obtain positions on the night shift.
Page 417 U. S. 206
Relying on these facts, the company argues that it ceased
discriminating against women in 1966, and was no longer in
violation of the Equal Pay Act.
But the issue before us is not whether the company, in some
abstract sense, can be said to have treated men the same as women
after 1966. Rather, the question is whether the company remedied
the specific violation of the Act which the Secretary proved. We
agree with the Second Circuit, as well as with all other circuits
that have had occasion to consider this issue, that the company
could not cure its violation except by equalizing the base wages of
female day inspectors with the higher rates paid the night
inspectors. This result is implicit in the Act's language, its
statement of purpose, and its legislative history.
As the Second Circuit noted, Congress enacted the Equal Pay
Act
"[r]ecognizing the weaker bargaining position of many women and
believing that discrimination in wage rates represented unfair
employer exploitation of this source of cheap labor."
474 F.2d at 234. In response to evidence of the many families
dependent on the income of working women, Congress included in the
Act's statement of purpose a finding that
"the existence . . . of wage differentials based on sex . . .
depresses wages and living standards for employees necessary for
their health and efficiency."
Pub.L. 88-38, § 2(a)(1), 77 Stat. 56 (1963). And Congress
declared it to be the policy of the Act to correct this condition.
§ 2(b).
To achieve this end, Congress required that employers pay equal
pay for equal work, and then specified:
"
Provided, That an employer who is paying a wage rate
differential in violation of this subsection shall not, in order to
comply with the provisions of this subsection, reduce the wage rate
of any employee."
29 U.S.C. § 206(d)(1).
Page 417 U. S. 207
The purpose of this proviso was to ensure that to remedy
violations of the Act, "[t]he lower wage rate must be increased to
the level of the higher." H.R.Rep. No. 309,
supra, at 3.
Comments of individual legislators are all consistent with this
view. Representative Dwyer remarked, for example,
"The objective of equal pay legislation . . . is not to drag
down men workers to the wage levels of women, but to raise women to
the levels enjoyed by men in cases where discrimination is still
practiced. [
Footnote
27]"
Representative Griffin also thought it clear that "[t]he only
way a violation could be remedied under the bill . . . is for the
lower wages to be raised to the higher." [
Footnote 28]
By proving that, after the effective date of the Equal Pay Act,
Corning paid female day inspectors less than male night inspectors
for equal work, the Secretary implicitly demonstrated that the
wages of female day shift inspectors were unlawfully depressed, and
that the fair wage for inspection work was the base wage paid to
male inspectors on the night shift. The whole purpose of the Act
was to require that these depressed wages be raised, in part as a
matter of simple justice to the employees themselves, but also as a
matter of market economics, since Congress recognized as well that
discrimination in wages on the basis of sex "constitutes an unfair
method of competition." Pub.L. 88-38,
supra, §
2(a)(5).
We agree with Judge Friendly that,
"In light of this apparent congressional understanding, we
cannot hold that Corning, by allowing some -- or even many -- women
to move into the higher paid night jobs, achieved full compliance
with the Act. Corning's action still left the inspectors on the day
shift -- virtually all women -- earning a lower
Page 417 U. S. 208
base wage than the night shift inspectors because of a
differential initially based on sex and still not justified by any
other consideration; in effect, Corning was still taking advantage
of the availability of female labor to fill its day shift at a
differentially low wage rate not justified by any factor other than
sex."
474 F.2d at 235.
The Equal Pay Act is broadly remedial, and it should be
construed and applied so as to fulfill the underlying purposes
which Congress sought to achieve. If, as the Secretary proved, the
work performed by women on the day shift was equal to that
performed by men on the night shift, the company became obligated
to pay the women the same base wage as their male counterparts on
the effective date of the Act. To permit the company to escape that
obligation by agreeing to allow some women to work on the night
shift at a higher rate of pay as vacancies occurred would
frustrate, not serve, Congress' ends.
See Shultz v. American
Can Co.-Dixie Products, 424 F.2d 356, 359 (CA8 1970);
Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (CA7
1972);
Hodgson v. Square D Co., 459 F.2d 805, 808-809 (CA6
1972).
The company's final contention -- that it cured its violation of
the Act when a new collective bargaining agreement went into effect
on January 20, 1969 -- need not detain us long. While the new
agreement provided for equal base wages for night or day inspectors
hired after that date, it continued to provide unequal base wages
for employees hired before that date, a discrimination likely to
continue for some time into the future because of a large number of
laid-off employees who had to be offered reemployment before new
inspectors could be hired. After considering the rather complex
method in which the new wage rates for employees hired prior to
January, 1969, were calculated and the company's stated purpose
Page 417 U. S. 209
behind the provisions of the new agreement, the District Court
in No. 73-29 concluded that the lower base wage for day inspectors
was a direct product of the company's failure to equalize the base
wages for male and female inspectors as of the effective date of
the Act. We agree it is clear from the record that, had the company
equalized the base wage rates of male and female inspectors on the
effective date of the Act, as the law required, the day inspectors,
in 1969, would have been entitled to the same higher "red circle"
rate the company provided for night inspectors. [
Footnote 29] We therefore conclude that, on
the facts of this case, the company's continued discrimination in
base wages between night and day workers, though phrased in terms
of a neutral factor other than sex, nevertheless operated to
perpetuate the effects of the company's prior illegal practice of
paying women less
Page 417 U. S. 210
than men for equal work.
Cf. Griggs v. Duke Power Co.,
401 U. S. 424,
401 U. S. 430
(1971).
The judgment in No. 73-29 is affirmed. The judgment in No.
73-695 is reversed, and the case remanded to the Court of Appeals
for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE STEWART took no part in the consideration or
decision of these cases.
THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE
REHNQUIST dissent, and would affirm the judgment of the Court of
Appeals for the Third Circuit and reverse the judgment of the Court
of Appeals for the Second Circuit for the reasons stated by Judge
Adams in his opinion for the Court of Appeals in
Brennan v.
Corning Glass Works, 480 F.2d 1254 (CA3 1973).
* Together with No. 73-695,
Brennan, Secretary of Labor v.
Corning Glass Works, on certiorari to the Court of Appeals for
the Third Circuit.
[
Footnote 1]
"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:
Provided, That an employer who is
paying a wage rate differential in violation of this subsection
shall not, in order to comply with the provisions of this
subsection, reduce the wage rate of any employee."
[
Footnote 2]
New York prohibited the employment of women between 10 p.m. and
6 a.m.
See 1927 N.Y.Laws, c. 453; 1930 N.Y.Laws, c. 868.
Pennsylvania also prohibited them from working between 10 p.m. and
6 a.m.
See Act of July 25, 1913, Act No. 466, Pa.Laws
1913.
[
Footnote 3]
Higher wages were demanded in part because the men had been
earning more money on their day shift jobs than women were paid for
inspection work. Thus, at the time of the creation of the new night
shift, female day shift inspectors received wages ranging from 20
to 30 cents per hour. Most of the men designated to fill the newly
created night shift positions had been working in the blowing room,
where the lowest wage rate was 48 cents per hour and where
additional incentive pay could be earned. As night shift
inspectors, these men received 53 cents per hour. There is also
some evidence in the record that additional compensation was
necessary because the men viewed inspection jobs as "demeaning" and
as "women's work."
[
Footnote 4]
A temporary exception was made during World War II when manpower
shortages caused Corning to be permitted to employ women on the
steady night shift inspection jobs at both locations. It appears
that women night inspectors during this period were paid the same
higher night shift wages earned by the men.
[
Footnote 5]
The shift differential was originally three cents an hour for
the afternoon shift and five cents an hour for the night shift. It
has been increased to 10 and 16 cents per hour respectively.
[
Footnote 6]
Section 4 of the Equal Pay Act provided that the Act would take
effect upon the expiration of one year from June 10, 1963, the date
of its enactment, except that, in the case of employees covered by
a
bona fide collective bargaining agreement in effect at
least 30 days prior to the date of enactment, the Act would take
effect upon the termination of such collective bargaining
agreement. It is conceded that the Act became effective with
respect to the Corning, New York, plants on June 11, 1964, though
it is also stipulated that the statute of limitations barred all
claims for backpay prior to November 1, 1964. With respect to the
Wellsboro plant, there is apparently some dispute between the
company and the Secretary as to when the Act took effect. Corning
evidently believe the Act took effect on January 20, 1965, because
of an outstanding collective bargaining agreement. The Secretary
claims that this agreement was reopened on January 24, 1964, and
that the plant therefore became subject to the Act's requirements
on June 11, 1964, one year after enactment. We see no need to
resolve this question, as it appears that, in any event, the
parties agree the statute of limitations bars recovery of back
wages for any violation prior to October, 1966.
[
Footnote 7]
In New York, a 1953 amendment allowed females over the age of 21
to work after midnight in factories operating multiple shifts where
the Industrial Commissioner found transportation and safety
conditions to be satisfactory and granted approval.
See
1953 N.Y.Laws, c. 708, amending N.Y.Labor Law § 172, formerly
codified in N.Y.Labor Law § 173(3)(a)(1) (1965). In Pennsylvania,
the law was amended in 1947 to permit women to work at night
conditioned upon the approval of the State Department of Labor and
Industry, Pa.Laws 1947, Act No. 543, p. 1397, codified in
Pa.Stat.Ann., Tit. 43, § 104 (Supp. 1974-1975), but state
regulations required that, in order to obtain approval to employ
women at night, an employer was required to furnish transportation
where public transportation was not available. The District Court
in No. 73-695 found that public transportation was not available in
Wellsboro, and that it was not economically feasible for Corning to
furnish transportation for its female employees. In July, 1965,
however, the Pennsylvania regulations were amended to permit
employers to hire women at night where regular private
transportation is available. Pa. Dept. of Labor and Industry,
Regulations Relating to Hours of Work and Conditions of Employment
of Women in Pa.Rule S-8(c) (1966).
In 1969, both New York and Pennsylvania repealed, either
expressly or by implication, those special night work restrictions
for women cited above.
See 2 N.Y.Laws 1969, c. 1042, § 2,
p. 2630, repealing N.Y.Labor Law § 173.3.a(1) (1965) and replacing
it with § 177.1(c), which was subsequently repealed in 1973, 1
N.Y.Laws 1973, c. 377, § 11, p. 1336; Pa.Laws 1969, Act No. 56, p.
133, which, by including sex as a prohibited form of
discrimination, Pa.Stat.Ann., Tit. 43, § 951
et seq.
(Supp. 1974-1975), impliedly voided all laws and regulations
specifically protecting one sex.
See Op.Atty.Gen. No.
69-304, Dec. 5, 1969.
[
Footnote 8]
The District Court in No. 73-29 issued a broadly worded
injunction against all future violations of the Act. The Court of
Appeals modified the injunction by limiting it to inspectors at the
three plants at issue in that case, largely because of that court's
belief that "Corning had been endeavoring since 1966 -- sincerely,
if ineffectively -- to bring itself into compliance." 474 F.2d 226,
236 (CA2 1973). Since the Government did not seek certiorari from
this aspect of the Second Circuit's judgment, we have no occasion
to consider this question.
[
Footnote 9]
See 109 Cong.Rec. 9196 (1963) (Rep. Frelinghuysen); 109
Cong.Rec. 9208 (Rep. Goodell).
[
Footnote 10]
Hodgson v. Corning Glass Works, 474 F.2d 226, 231 (CA2
1973);
Brennan v. Corning Glass Works, 480 F.2d 1254, 1258
(CA3 1973).
See also Hodgson v. Behrens Drug Co., 475 F.2d
1041, 1049 (CA5 1973);
Hodgson v. Golden Isles Convalescent
Homes, Inc., 468 F.2d 1256, 1257 (CA5 1972);
Hodgson v.
Fairmont Supply Co., 454 F.2d 490, 493 (CA4 1972);
Hodgson
v. Brookhaven General Hospital, 436 F.2d 719, 722 (CA5 1970);
Shultz v. American Can Co.-Dixie Products, 424 F.2d 356,
360 (CA8 1970).
[
Footnote 11]
See Hodgson v. Corning Glass Works, supra, at 231;
Brennan v. Corning Glass Works, supra, at 1258;
Hodgson v. Robert Hall Clothes, Inc., 473 F.2d 589, 597
(CA3),
cert. denied sub nom. Brennan v. Robert Hall Clothes,
Inc., 414 U.S. 866 (1973);
Hodgson v. Security Nat. Bank
of Sioux City, 460 F.2d 57, 59 n. 4 (CA8 1972);
Shultz v.
Wheaton Glass Co., 421 F.2d 259, 266 (CA3),
cert.
denied, 398 U.S. 905 (1970);
Shultz v. American Can Co.,
supra, at 362;
Shultz v. First Victoria Nat. Bank,
420 F.2d 648, 654 n. 8 (CA5 1969);
Hodgson v. Industrial Bank
of Savannah, 347 F. Supp.
63, 67 (SD Ga.1972);
Hodgson v. Maison Miramon,
Inc., 344 F.
Supp. 843, 845 (ED La.1972);
Hodgson v. J. W. Lyles,
Inc., 335 F.
Supp. 128, 131 (Md.1971),
aff'd, 468 F.2d 625 (CA4
1972);
Hodgson v. City Stores, Inc., 332 F.
Supp. 942, 947 (MD Ala.1971);
Shultz v. Kimberly Clark
Corp., 315 F.
Supp. 1323, 1332 (WD Tenn.1970);
Wirtz v. Basic
Inc., 256 F.
Supp. 786, 790 (Nev.1966).
See also 29 CFR § 800.141
(1973).
[
Footnote 12]
See A. H. Phillips, Inc. v. Walling,
324 U.
S. 490,
324 U. S. 493
(1945);
Arnold v. Ben Kanowsky, Inc., 361 U.
S. 388,
361 U. S. 392
(1960);
Walling v. General Industries Co., 330 U.
S. 545,
330 U. S.
547-548 (1947);
Mitchell v. Kentucky Finance
Co., 359 U. S. 290,
359 U. S. 295
(1959).
[
Footnote 13]
The Secretary also advances an argument that, even if night and
day inspection work is assumed not to be performed under similar
working conditions, the differential in base wages is nevertheless
unlawful under the Act. The additional burden of working at night,
the argument goes, was already fully reflected in the plant-wide
shift differential, and the shifts were made "similar" by payment
of the shift differential. This argument does not appear to have
been presented to either the Second or the Third Circuit, as the
opinions in both cases reflect an assumption on the part of all
concerned that the Secretary's case would fail unless night and day
inspection work was found to be performed under similar working
conditions. For this reason, and in view of our resolution of the
"working condition" issue, we have no occasion to consider, and
intimate no views on, this aspect of the Secretary's argument.
[
Footnote 14]
See S. 882, 88th Cong., 1st Sess., § 4 (1963);
cf. S. 910, 88th Cong., 1st Sess., § 4(a) (1963).
[
Footnote 15]
See, e.g., Hearings On Equal Pay Act of 1963 before the
Subcommittee on Labor of the Senate Committee on Labor and Public
Welfare, 88th Cong., 1st Sess., 26, 73, 79, 124, 140, 178 (1963)
(hereinafter Senate Hearings); Hearings on Equal Pay Act before the
Special Subcommittee on Labor of the House Committee on Education
and Labor, 88th Cong., 1st Sess., 145-146 (1963) (hereinafter House
Hearings).
[
Footnote 16]
See Senate Hearings 96-104; House Hearings 232-240.
See also House Hearings 304-305, 307-308.
[
Footnote 17]
See, e.g., Senate Hearings 73, 74, 79, 124, 130, 138,
140, 178; House Hearings 145, 146, 159, 199-200.
[
Footnote 18]
Senate Hearings 98; House Hearings 234.
[
Footnote 19]
109 Cong.Rec. 9195 (1963) (Rep. Frelinghuysen).
See
also H.R.Rep. No. 309, 88th Cong., 1st Sess., 8 (1963).
[
Footnote 20]
Senate Hearings 98-99; House Hearings 234-236.
[
Footnote 21]
See D. Belcher, Wage and Salary Administration 271-274,
278, 287-289 (1955); 2 United States Dept. of Labor, Dictionary of
Occupational Titles 656 (3d ed.1965); United States Civil Service
Commission, Job Grading System for Trades and Labor Occupations,
F.P.M.Supp. 512-1, p. A3-3 (1970).
[
Footnote 22]
Pursuant to its 1944 collective bargaining agreement, Corning
adopted a job classification system developed by its consultants,
labeled the SJH plan, which evaluated inspector jobs on the basis
of "general schooling," "training period," "manual skill,"
"versatility," "job knowledge," "responsibility," and "working
conditions." Under this evaluation, the inspector jobs, regardless
of shift, were found equal in all respects, including "working
conditions," which were defined as the
"surrounding conditions (wet, heat, cold, dust, grease, noises,
etc.) and physical hazards (bruises, cuts, heavy lifting, fumes,
slippery floors, machines, chemicals, gases, bodily injuries, etc.)
to which employees are unavoidably subjected while performing the
duties."
A new plan, put into effect in 1963-1964 and called the CGW
plan, also found no significant differences in the duties performed
by men and women inspectors, and awarded the same point values for
skill, effort, responsibility, and working conditions, regardless
of shift.
[
Footnote 23]
App. 66.
[
Footnote 24]
In No. 73-29, Corning also claimed that the night inspection
work was not equal to day shift inspection work because night shift
inspectors had to do a certain amount of packing, lifting, and
cleaning which was not performed by day shift inspectors. Noting
that it is now well settled that jobs need not be identical in
every respect before the Equal Pay Act is applicable, the Court of
Appeals concluded that the extra work performed by night inspectors
was of so little consequence that the jobs remained substantially
equal.
See 474 F.2d at 234.
See also Shultz v. Wheaton
Glass Co., 421 F.2d at 265;
Shultz v. American Can
Co., 424 F.2d at 360;
Hodgson v. Fairmont Supply Co.,
454 F.2d at 493. The company has not pursued this issue here.
[
Footnote 25]
An administrative interpretation by the Wage and Hour
Administrator recognizes the legitimacy of night shift
differentials shown to be based on a factor other than sex.
See 29 CFR § 800.145 (1973).
[
Footnote 26]
This question, as well as the questions discussed in
417 U. S.
infra were considered by the District Court and the Court
of Appeals only in No. 73-29, and not in No. 73-695, since, in the
latter case, the courts below concluded that the Secretary had
failed to prove that night and day shift inspection work was
performed under similar working conditions. We deal with these
issues, then, only on the basis of the record in No. 73-29. To the
extent that there are any differences in the records in these two
cases on factual matters relating to these questions, we leave it
to the District Court and the Court of Appeals in No. 73 695 to
resolve these questions, in the first instance, on the basis of the
record created in that case.
[
Footnote 27]
109 Cong.Rec. 2714 (1963).
[
Footnote 28]
House Hearings,
supra, n 15, at 65.
See also 109 Cong.Rec. 9196 (Rep.
Thompson).
[
Footnote 29]
The January, 1969, agreement provided an 8% or 20� per hour
across-the-board wage increase, applied to the pre-January, 1969,
base wage and made retroactive to November 4, 1968. The contract
also instituted new "job evaluation" wage rates for various
positions. In the case of inspectors, the new "job evaluation" rate
was higher than the retroactively increased base wage of day shift
inspectors, but was lower than the retroactively increased base
wage of night shift inspectors. The contract further provided that,
where the job evaluation rate was less than the current rate for
the job -- that is, less than the retroactively increased old rate
employees hired before January 20, 1969, would continue to be paid
the old rate, through "red circle" protection. Thus, the day shift
inspectors received the new job evaluation rate, while the night
shift inspectors continued to receive the higher "red circle" night
shift base wage. Had the company complied with the law and
equalized the base wages of day shift inspectors prior to 1969, the
retroactively increased base wage of day shift inspectors would
have been the same as the retroactively increased rate of night
shift inspectors, and the day shift inspectors would have been
entitled to the same "red circle" protection granted the night
shift inspectors, since that retroactively increased rate was
higher than the new job evaluation rate.