Alan Cranston
| Decision Date | 29 July 1986 |
| Docket Number | B-217675 |
| Parties | THE HONORABLE ALAN CRANSTON |
| Court | Comptroller General of the United States |
Officers and employees - equal employment opportunity - discrimination actions digest: two congressmen joined in requesting that gao provide a supplementary report on pay equity practices in the public sector. In response to the legal portions of the request, we provide the congressmen with information on recent pay-inequality cases involving governmental employers and we discuss various statutes relating to federal classification and pay practices.
United states senate
By letter dated January 28, 1986, you joined with senator Daniel J. Evans in requesting a supplementary report on pay equity activities in the states. As part of your request, you asked that we provide information on recent pay inequality cases involving governmental employers and that we discuss certain statutes relating to federal classification and pay practices.
Our general government division is in the process of surveying all 50 states to compile the data necessary to provide you with an update on the states' pay equity activities. Pending completion of this survey, your staff asked that we provide you with the following as soon as possible:
The four appendices to this letter contain the items of legal information you have requested, in the order identified above. When our general government division has completed its evaluation of pay equity developments in the states, it will report its findings to you in a separate document.
By letter of today, we are also transmitting this legal portion of our response to senator evans.
Appendix i
Recent pay equity cases involving governmental employers
In our report describing options for conducting a federal pay equity study, [1] we surveyed pay equity case law with particular emphasis on those cases decided after the supreme court's decision in county of Washington v Gunther.[2] in gunther, the court held that a plaintiff May maintain a claim of sex-based wage discrimination under title vii of the civil rights act of 1964 without meeting the "equal work" standard of the equal pay act of 1963, but it declined to define the scope of title vii for purposes of future litigation.[3] in the aftermath of gunther, courts deciding wage-inequality cases expressed different opinions concerning the theories available and evidence necessary to establish a violation of title vii. However, as we observed in our report, most courts expressed a preference for findings of intentional discrimination and rejected claims based solely on the theory of "comparable worth."[4]
We concluded the survey of pay equity case law in our report by discussing two recently-issued decisions: afscme v. State of washington, [5] and spaulding v. Univ. Of washington.[6] in the afscme case, the district court for the western district of Washington held that: (1) Washington state intentionally discriminated against female employees by delaying implementation of a pay equity study disclosing sex-based wage disparities between male and female dominated job classifications; and (2) the market-based compensation system which the state continued to use qualified as a facially neutral policy having a disparate impact on women.[7] in the spaulding case, the court of appeals for the ninth circuit reached a contrary conclusion on the disparate impact issue, holding that the theory cannot be used to challenge an employer's reliance on market forces.[8]
The following discussion summarizes recent title vii cases involving state and local governments.[9] our review begins with those cases addressing the title vii consequences of a government's failure to implement the results of a pay equity study.
Cases involving failure to implement a pay equity study
(1) ninth circuit's decision in afscme v. State of washington.[10]
On September 4, 1985, a three-judge panel for the ninth circuit court of appeals overturned the district court's decision in afscme v. State of washington, discussed above. First addressing the district court's determination of Washington state's liability under the disparate impact theory, the appellate court found that application of the theory had been improper. The court explained that the state's market-based compensation system had been developed through a number of complex processes, and therefore, that it is not the type of specific and clearly delineated employment practice at which the disparate impact theory is aimed.[11]
Turning to the issue of intentional discrimination, the court acknowledged that discriminatory intent May be inferred from circumstantial evidence.[12] however, the court found afscme's evidence to be insufficient, rejecting the union's argument that discriminatory motive could be inferred from the state's continued use of market rates in setting salaries.[13] according to the court, the free market system is not a "suspect enterprise, " and title vii does not prohibit employers from setting wages according to the laws of supply and demand.[14] the court stated that, although the Washington state legislature has the discretion to enact a comparable worth plan if it chooses to do so, title vii does not obligate the state to eliminate an economic inequality which it did not create.[15]
Finally the court rejected afscme's contention that, having commissioned a pay equity study, the state was bound to implement the results. The court stated that a study indicating that a particular wage structure would be more equitable should not categorically bind the employer who commissioned it, and suggested that a contrary rule would "penalize rather than commend employers for their effort and innovation in undertaking such a study."[16]
After the appellate panel issued its decision, afscme filed a petition requesting that the ninth circuit undertake a full court review. Essentially, afscme argued that the panel's decision gave too broad an endorsement to Washington state's reliance on market rates.
On December 31, 1985, afscme and the state of Washington entered into an agreement for the stated purpose of implementing the state's comparable worth legislation passed in 1983 and fully resolving the litigation in afscme v. State of washington. The agreement establishes a plan under which the state will distribute annual comparable worth salary increases to employees in female-dominated job classifications, thereby discharging its obligation under state law to achieve comparable worth no later than 1993. The union agreed to refrain from seeking further court review of the ninth circuit panel's opinion in afscme, and to take no legal action based on the state's implementation of its comparable worth plan. The agreement became effective in April 1986, having been ratified by the Washington state legislature and approved by the district court for the western district of washington.
(2) district and appellate court rulings in American nurses ass'n v. State of illinois.[17]
In May 1984, the American nursing association (ana) filed a title vii action against the state of illinois. In its complaint the ana alleged that the state continued to pay employees in "female-dominated sex- segregated" job classifications less than employees in male dominated classifications, even though the state's evaluative study had disclosed that the female classifications require equal or greater degrees of know- how, problem-solving, and accountability.
The district court for the northern district of illinois dismissed the suit, concluding that "unequal pay for jobs alleged to be of comparable worth on the basis of an evaluated study which the employer commissioned but never adopted does not constitute a viable legal theory under title vii.[18] the court offered three reasons for this holding, stating that: (1) congress specifically rejected a "comparable worth" standard when it enacted the equal pay act, and nothing in the language or legislative history of title vii discloses an intention to reverse that earlier policy judgment; (2) although the supreme court in gunther held that title vii extends beyond allegations of unequal pay for equal work, the court stressed the narrowness of its holding; and (3) in the court's own judgment, permitting proof of intentional discrimination through job evaluation studies would be neither workable nor sound.[19]
In the course of its ruling, the district court specifically rejected the ana's argument that the state's failure to implement its own evaluative study constituted probative evidence of discrimination. The court stated that, although job evaluation May be useful as a diagnostic tool, title vii does not require an employer to, "implement immediately whatever pay changes a particular study suggests, without regard to economic considerations, the labor market bargaining demands or the possibility that some other study might produce different results."[20] according to the court, a contrary interpretation of title vii would "create a disincentive to...
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