American Federation of State, County, and Mun. Employees, AFL-CIO (AFSCME) v. State of Wash.
| Decision Date | 04 September 1985 |
| Docket Number | 84-3590,Nos. 84-3569,AFL-CIO,s. 84-3569 |
| Citation | 770 F.2d 1401 |
| Parties | 38 Fair Empl.Prac.Cas. 1353, 37 Empl. Prac. Dec. P 35,459, 54 USLW 2144 AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES,(AFSCME), et al., Plaintiffs-Appellees, v. STATE OF WASHINGTON, et al., Defendants-Appellants. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES,(AFSCME), et al., Plaintiffs-Appellants, v. STATE OF WASHINGTON, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard B. Sanders, Seattle, Wash., Daniel J. Popeo, George C. Smith, Washington, D.C., for Washington Legal Foundation.
Robert E. Williams, Thomas R. Bagby, Douglas S. McDowell, McGuiness & Williams, Washington, D.C., for Equal Employment Advisory Council.
Daniel E. Leach, Chadbourne, Parke, Whiteside & Wolff, Washington, D.C., Chadbourne, Parke, Whiteside & Wolff, Peter N. Hillman, New York City, for Washington Study Group.
Clint Bolick, K. Preston Oade, Jr., Maxwell A. Miller, Mountain States Legal Foundation, Denver, Colo., for Mountain States Legal Foundation.
Ronald A. Zumbrun, John H. Findley, Anthony T. Caso, Pacific Legal Foundation, Sacramento, Cal., for Pacific Legal Foundation.
Davis, Wright, Todd, Riese & Jones, Thomas A. Lemly, Stephen M. Rummage, Robert G. Homchick, Seattle, Wash., for Asso. of Washington Business.
Winn, Newman & Associates, Winn Newman, Lisa Newell, Richard B. Sobol, Michael B. Trister, Washington, D.C., Cordes, Cordes & Younglove, Ed Younglove, Olympia, Wash., for AFSCME.
Christine O. Gregoire, Deputy Atty. Gen., Richard A. Heath, Sr., Asst. Atty. Gen., Olympia, Wash., for State of Wash.
Epstein, Becker, Borsody & Green, Frank C. Morris, Jr., Washington, D.C., for Eagle Forum Educ. & Legal Defense Fund, amicus.
Edith Barnett, Washington, D.C., for Nat. Center for Econmic Alternatives, amicus.
Mary L. Heen, Isabelle Katz Pinzler, Joan E. Bertin, E. Richard Larson, Burt Neuborne, New York City, Durning, Webster & Lonnquist, Judith A. Lonnquist, Seattle, Wash., for Nat. Committee on Pay Equity, et al., amicus.
Robert H. Chanin, Washington, D.C., Altshuler & Berzon, Marsha S. Berzon, San Francisco, Cal., Laurence Gold, Washington, D.C., for American Federation of Labor & Congress of Indus. Organizations, amicus.
Julius LeVonne Chambers, Barry L. Goldstein, Gail J. Wright, Charles Stephen Ralston, Penda D. Hair, New York City, for NAACP Legal Defense & Educational Fund, Inc., amicus.
Marsha Levick, Emily Spitzer, New York City, for Women & The NOW Legal Defense & Educ. Fund, amicus.
Appeal from the United States District Court for the Western District of Washington.
Before WRIGHT and KENNEDY, Circuit Judges, and MacBRIDE, * District Judge.
In this class action affecting approximately 15,500 of its employees, the State of Washington was sued in the United States District Court for the Western District of Washington. The class comprises state employees who have worked or do work in job categories that are or have been at least seventy percent female. The action was commenced for the class members by two unions, the American Federation of State, County, and Municipal Employees (AFSCME) and the Washington Federation of State Employees (WFSE). In all of the proceedings to date and in the opinion that follows, the plaintiffs are referred to as AFSCME. The district court found the State discriminated on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a) (1982), by compensating employees in jobs where females predominate at lower rates than employees in jobs where males predominate, if these jobs, though dissimilar, were identified by certain studies to be of comparable worth. The State appeals. We conclude a violation of Title VII was not established here, and we reverse.
The State of Washington has required salaries of state employees to reflect prevailing market rates. See Wash.Rev.Code Ann. Sec. 28B.16.100(16) (1983) (effective March 29, 1979); State Civil Service Law, ch. 1, Sec. 16, 1961 Wash.Laws 7, 17. Throughout the period in question, comprehensive biennial salary surveys were conducted to assess prevailing market rates. The surveys involved approximately 2,700 employers in the public and private sectors. The results were reported to state personnel boards, which conducted hearings before employee representatives and agencies and made salary recommendations to the State Budget Director. The Director submitted a proposed budget to the Governor, who in turn presented it to the state legislature. Salaries were fixed by enactment of the budget.
In 1974 the State commissioned a study by management consultant Norman Willis to determine whether a wage disparity existed between employees in jobs held predominantly by women and jobs held predominantly by men. The study examined sixty-two classifications in which at least seventy percent of the employees were women, and fifty-nine job classifications in which at least seventy percent of the employees were men. It found a wage disparity of about twenty percent, to the disadvantage of employees in jobs held mostly by women, for jobs considered of comparable worth. Comparable worth was calculated by evaluating jobs under four criteria: knowledge and skills, mental demands, accountability, and working conditions. A maximum number of points was allotted to each category: 280 for knowledge and skills, 140 for mental demands, 160 for accountability, and 20 for working conditions. Every job was assigned a numerical value under each of the four criteria. The State of Washington conducted similar studies in 1976 and 1980, and in 1983 the State enacted legislation providing for a compensation scheme based on comparable worth. The scheme is to take effect over a ten-year period. Act of June 15, 1983, ch. 75, 1983 Wash.Laws 1st Ex.Sess. 2071.
AFSCME filed charges with the Equal Employment Opportunity Commission (EEOC) in 1981, alleging the State's compensation system violated Title VII's prohibition against sex discrimination in employment. The EEOC having taken no action, the United States Department of Justice issued notices of right to sue, expressing no opinion on the merits of the claims. In 1982 AFSCME brought this action in the district court, seeking immediate implementation of a system of compensation based on comparable worth. The district court ruled in favor of AFSCME and ordered injunctive relief and back pay. Its findings of fact, conclusions of law, and opinion are reported. American Federation of State, County, and Municipal Employees v. Washington, 578 F.Supp. 846 (W.D.Wash.1983) (AFSCME I ).
AFSCME alleges sex-based wage discrimination throughout the state system, but its explanation and proof of the violation is, in essence, Washington's failure as early as 1979 to adopt and implement at once a comparable worth compensation program. The trial court adopted this theory as well. AFSCME I, 578 F.Supp. at 865-71. The comparable worth theory, as developed in the case before us, postulates that sex-based wage discrimination exists if employees in job classifications occupied primarily by women are paid less than employees in job classifications filled primarily by men, if the jobs are of equal value to the employer, though otherwise dissimilar. See, e.g., Jacobs, Comparable Worth, Case & Com., March-April 1985, at 12; Bellak, Comparable Worth: A Practitioner's View, in 1 Comparable Worth: Issue for the 80's, at 75 (United States Commission on Civil Rights, June 6-7, 1984); Northrup, Comparable Worth and Realistic Wage Setting, in 1 Comparable Worth: Issue for the 80's, at 93 (United States Commission on Civil Rights, June 6-7, 1984), see also American Nurses' Association v. Illinois, 606 F.Supp. 1313, 1315 (N.D.Ill.1985) (mem.). We must determine whether comparable worth, as presented in this case, affords AFSCME a basis for recovery under Title VII.
Section 703(a) of Title VII states in pertinent part:
It shall be an unlawful employment practice for an employer--
(1) ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... sex ... or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities ... because of such individual's ... sex....
42 U.S.C. Sec. 2000e-2(a) (1982) (emphasis added).
The Bennett Amendment to Title VII, designed to relate Title VII to the Equal Pay Act 1, see County of Washington v. Gunther, 452 U.S. 161, 173-76, 101 S.Ct. 2242, 2249-51, 68 L.Ed.2d 751 (1981), and eliminate any potential inconsistencies between the two statutes, 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. Sec. 2000e-2(h) (1982). It is evident from the legislative history of the Equal Pay Act that Congress, after explicit consideration, rejected proposals that would have prohibited lower wages for comparable work, as contrasted with equal work. See 109 Cong.Rec. 9197-9208 (Remarks of Rep. Goodell), 9196 (Remarks of Rep. Frelinghuysen), 9197-98 (Remarks of Reps. Griffin and Thompson) (1963). The legislative history of the Civil Rights Act of 1964 and the Bennett Amendment, however, is inconclusive regarding the intended coverage of Title VII's prohibition against sex discrimination, and contains no explicit discussion of compensation for either comparable or equal work. See generally General Electric Co. v. Gilbert, 429 U.S. 125, 143, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976) (...
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