American Nurses' Ass'n v. State of Ill.

Decision Date04 April 1986
Docket NumberNo. 85-1766,85-1766
Citation783 F.2d 716
Parties40 Fair Empl.Prac.Cas. 244, 39 Empl. Prac. Dec. P 35,902, 54 USLW 2448 AMERICAN NURSES' ASSOCIATION, et al., Plaintiffs-Appellants, v. STATE OF ILLINOIS, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Edith Barnett, Washington, D.C., for plaintiffs-appellants.

James I. Rubin, Chicago, Ill., for defendants-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

This class action charges the State of Illinois with sex discrimination in employment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, and the equal protection clause of the Fourteenth Amendment. The named plaintiffs are two associations of nurses plus 21 individuals, mostly but not entirely female, who work for the state in jobs such as nursing and typing that are filled primarily by women. The suit is on behalf of all state employees in these job classifications. The precise allegations of the complaint will require our careful attention later, but for now it is enough to note that they include as an essential element the charge that the state pays workers in predominantly male job classifications a higher wage not justified by any difference in the relative worth of the predominantly male and the predominantly female jobs in the state's roster.

The complaint was filed in May 1984, and before the state answered, an amended complaint was filed early in July. Less than a month later the state moved to dismiss the complaint or, in the alternative, for summary judgment. In November the plaintiffs filed a memorandum in opposition to the state's motion, to which they attached exhibits not obtained in the course of pretrial discovery--for there had been no discovery. In April 1985 the district judge dismissed the complaint under Fed.R.Civ.P. 12(b)(6) but without ruling on the state's alternative request for summary judgment, 606 F.Supp. 1313. The ground for dismissal was that the complaint pleaded a comparable worth case and that a failure to pay employees in accordance with comparable worth does not violate federal antidiscrimination law. The plaintiffs appeal. They argue that their case is not (or perhaps not just) a comparable worth case and that in characterizing the complaint as he did the district judge terminated the lawsuit by a semantic manipulation. The state both defends the judge's ground for dismissal and argues that we can equally well affirm on the ground that the state's motion for summary judgment should have been granted.

Comparable worth is not a legal concept, but a shorthand expression for the movement to raise the ratio of wages in traditionally women's jobs to wages in traditionally men's jobs. Its premises are both historical and cognitive. The historical premise is that a society politically and culturally dominated by men steered women into certain jobs and kept the wages in those jobs below what the jobs were worth, precisely because most of the holders were women. The cognitive premise is that analytical techniques exist for determining the relative worth of jobs that involve different levels of skill, effort, risk, responsibility, etc. These premises are vigorously disputed on both theoretical and empirical grounds. Economists point out that unless employers forbid women to compete for the higher-paying, traditionally men's jobs--which would violate federal law--women will switch into those jobs until the only difference in wages between traditionally women's jobs and traditionally men's jobs will be that necessary to equate the supply of workers in each type of job to the demand. Economists have conducted studies which show that virtually the entire difference in the average hourly wage of men and women, including that due to the fact that men and women tend to be concentrated in different types of job, can be explained by the fact that most women take considerable time out of the labor force in order to take care of their children. As a result they tend to invest less in their "human capital" (earning capacity); and since part of any wage is a return on human capital, they tend therefore to be found in jobs that pay less. Consistently with this hypothesis, the studies find that women who have never married earn as much as men who have never married. To all this the advocates of comparable worth reply that although there are no longer explicit barriers to women's entering traditionally men's jobs, cultural and psychological barriers remain as a result of which many though not all women internalize men's expectations regarding jobs appropriate for women and therefore invest less in their human capital.

On the cognitive question economists point out that the ratio of wages in different jobs is determined by the market rather than by any a priori conception of relative merit, in just the same way that the ratio of the price of caviar to the price of cabbage is determined by relative scarcity rather than relative importance to human welfare. Upsetting the market equilibrium by imposing such a conception would have costly consequences, some of which might undercut the ultimate goals of the comparable worth movement. If the movement should cause wages in traditionally men's jobs to be depressed below their market level and wages in traditionally women's jobs to be jacked above their market level, women will have less incentive to enter traditionally men's fields and more to enter traditionally women's fields. Analysis cannot stop there, because the change in relative wages will send men in the same direction: fewer men will enter the traditionally men's jobs, more the traditionally women's jobs. As a result there will be more room for women in traditionally men's jobs and at the same time fewer opportunities for women in traditionally women's jobs--especially since the number of those jobs will shrink as employers are induced by the higher wage to substitute capital for labor inputs (e.g., more word processors, fewer secretaries). Labor will be allocated less efficiently; men and women alike may be made worse off.

Against this the advocates of comparable worth urge that collective bargaining, public regulation of wages and hours, and the lack of information and mobility of some workers make the market model an inaccurate description of how relative wages are determined and how they influence the choice of jobs. The point has particular force when applied to a public employer such as the State of Illinois, which does not have the same incentives that a private firm would have to use labor efficiently.

It should be clear from this brief summary that the issue of comparable worth (on which see the discussion and references in Paul Weiler, The Uses and Limits of Comparable Worth in the Pursuit of Pay Equity for Women, Discussion Paper No. 15, Program in Law and Economics, Harvard Law School, November 1985) is not of the sort that judges are well equipped to resolve intelligently or that we should lightly assume has been given to us to resolve by Title VII or the Constitution. An employer (private or public) that simply pays the going wage in each of the different types of job in its establishment, and makes no effort to discourage women from applying for particular jobs or to steer them toward particular jobs, would be justifiably surprised to discover that it may be violating federal law because each wage rate and therefore the ratio between them have been found to be determined by cultural or psychological factors attributable to the history of male domination of society; that it has to hire a consultant to find out how it must, regardless of market conditions, change the wages it pays, in order to achieve equity between traditionally male and traditionally female jobs; and that it must pay backpay, to boot. We need not tarry over the question of law presented by this example because as we understand the plaintiffs' position it is not that a mere failure to rectify traditional wage disparities between predominantly male and predominantly female jobs violates federal law. The circuits that have considered this contention have rejected it, see Spaulding v. University of Washington, 740 F.2d 686, 706-07 (9th Cir.1984); Lemons v. City & County of Denver, 620 F.2d 228 (10th Cir.1980); Christensen v. Iowa, 563 F.2d 353 (8th Cir.1977), and the AFSCME case discussed below; we shall see shortly that this rejection may be compelled by the Supreme Court's decisions in the Davis and Feeney cases.

The next question is whether a failure to achieve comparable worth--granted that it would not itself be a violation of law--might permit an inference of deliberate and therefore unlawful discrimination, as distinct from passive acceptance of a market-determined disparity in wages. The starting point for analyzing this question must be County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Women employed to guard female prisoners were paid less than men employed to guard male prisoners. Since male prison inmates are more dangerous than female ones and since each male guard on average guarded ten times as many prisoners as each female guard, the jobs were not the same. Therefore, paying the male guards more could not violate the Equal Pay Act of 1963, 29 U.S.C. Sec. 206(d), which requires equal pay only for equal work. The issue was whether it could violate Title VII, and the Court held that it could. A comparable worth study figured in this conclusion. The plaintiffs had alleged (and the allegation had to be taken as true for purposes of appeal, because the complaint had been dismissed, as in this case, for failure to state a claim) that the county had conducted a comparable worth study and had determined that female guards should be paid 95 percent of...

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