Brennan v. Prince William Hosp. Corp.

• Decision Date: 24 September 1974
• Docket Number: No. 73-2331,73-2331
• Parties: 9 Fair Empl.Prac.Cas. 979, 21 Wage & Hour Cas. (BN 1017, 8 Empl. Prac. Dec. P 9687, 75 Lab.Cas. P 33,149 Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellant, v. PRINCE WILLIAM HOSPITAL CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 282

503 F.2d 282

9 Fair Empl.Prac.Cas. 979,

21 Wage & Hour Cas. (BN 1017,

8 Empl. Prac. Dec. P 9687, 75 Lab.Cas. P 33,149

Peter J. BRENNAN, Secretary of Labor, United States

Department of Labor, Appellant, v. PRINCE WILLIAM HOSPITAL CORPORATION, Appellee.

No. 73-2331.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1974.

Decided Sept. 24, 1974.

Carin Ann Clauss, Associate Sol., U.S. Dept. of Labor (William J. Kilberg, Sol. of Labor, Sylvia S. Ellison and Helen W. Judd, Attys., U.S. Dept. of Labor, and Marvin Tincher, Regional Atty., on brief), for appellant.

John K. Pickens, Alexandria, Va., for appellee.

Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit judges.

BUTZNER, Circuit Judge:

The Secretary of Labor appeals from the dismissal of an action against Prince William Hospital to equalize pay of male hospital orderlies and female nurses' aides in conformity with the Equal Pay Act of 1963, 29 U.S.C. 206(d)(1). ¹ The district court noted that the facts were not in dispute and that the controversy centered on the inferences to be drawn from them. It found that although aides and orderlies do the same type of patient care work, the following differences exist between the jobs: the proportions of routine care tasks are not the same; aides do work which orderlies are neither required nor permitted to do; and, most important, orderlies do work, including extra tasks, which aides are neither required nor permitted to do. It concluded, therefore, that the Secretary had failed to establish that the aides and orderlies perform substantially equal work.

We believe that the district court gave undue significance to these differences because it misapprehended the statutory definition of equal work, which embraces the concepts of 'skill, effort, and responsibility.' ² Since it applied an improper legal standard to the relevant facts, we reverse and remand for the entry of judgment for the Secretary. See Piedmont Minerals Co. v. United States, 429 F.2d 560, 562 n. 4 (4th Cir. 1970); Schultz v. Wheaton Glass Co., 421 F.2d 259, 267 (3rd Cir. 1969); 9 Wright & Miller, Federal Practice and Procedure 2589 (1971).

I

In applying the Congressional mandate of equal pay for equal work on jobs which require equal skill, effort, and responsibility, there are two extremes of interpretation that must be avoided. Congress realized that the majority of job differentiations are made for genuine economic reasons unrelated to sex. It did not authorize the Secretary or the courts to engage in wholesale reevaluation of any employer's pay structure in order to enforce their own conceptions of economic worth. See Hodgson v. Miller Brewing Co.,457 F.2d 221, 227 (7th Cir. 1972). But if courts defer to overly nice distinctions in job content, employers may evade the Act at will. Hodgson v. Behrens Drug Co., 475 F.2d 1041, 1049 (5th Cir. 1973); Hodgson v. Miller Brewing Co., 457 F.2d 221, 227 (7th Cir. 1972); Hodgson v. Fairmont Supply Co., 454 F.2d 490, 493 (4th Cir. 1972); Shultz v. American Can Co.-- Dixie Products, 424 F.2d 356, 360 (8th Cir. 1970); Shultz v. Wheaton Glass Co.,421 F.2d 259, 265 (3d Cir. 1969). The response to this dilemma has been to require the Secretary to prove substantial equality of skill, effort, and responsibility as the jobs are actually performed. See Hodgson v. Fairmont Supply Co., supra: Shultz v. Wheaton Glass Co., supra.

One of the most common grounds for justifying different wages is the assertion that male employees perform extra tasks. These may support a wage differential if they create significant variations in skill, effort, and responsibility between otherwise equal jobs, see, e.g., Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256 (5th Cir. 1972). But the semblance of the valid job classification system may not be allowed to mask the existence of wage discrimination based on sex. The Secretary may therefore show that the greater pay received by the male employees is not related to any extra tasks and thus is not justified by them. Higher pay is not related to extra duties when one or more of the following circumstances exists:

P Some male employees receive higher pay without doing the extra work. E.g., Shultz v. American Can Co.-- Dixie Products, 424 F.2d 356 (8th Cir. 1970); Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1970). P Female employees also perform extra duties of equal skill, effort, and responsibility. E.g., Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1971). P Qualified female employees are not given the opportunity to do the extra work. E.g., Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1969). P The supposed extra duties do not in fact exist. E.g., Hodgson v. Security National Bank, 460 F.2d 57 (8th Cir. 1972). P The extra task consumes a minimal amount of time and is of peripheral importance. E.g., Hodgson v. Behrens Drug Co., 475 F.2d 1041 (5th Cir. 1973); Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1972); Shultz v. American Can Co.-- Dixie Products, 424 F.2d 356 (8th Cir. 1970). P Third persons who do the extra task as their primary job are paid less than the male employees in question. E.g., Shultz v. Wheaton Glass Co., 421 F.2d 259 (3d Cir. 1969).

In all of these cases the basic jobs were substantially equal. Despite claims to the contrary, the extra tasks were found to be makeweights. This left sex-- which in this context refers to the availability of women at lower wages than men-- as the one discernible reason for the wage differential. That, however, is precisely the criterion for setting wages that the Act prohibits. See Brennan v. City Stores, Inc., 479 F.2d 235, 241 n. 12 (5th Cir. 1973); Hodgson v. Brookhaven Hospital, 436 F.2d 719, 726 (5th Cir. 1970).

II

Although a number of courts have applied the Equal Pay Act to hospital and nursing home aides and orderlies, varied employment practices among institutions have prevented the development of an industry-wide standard. The Act must be applied on a case by case basis to factual situations that are, for practical purposes, unique. See Hodgson v. Golden Isles Convalescent Homes, Inc., 468 F.2d 1256, 1258 (5th Cir. 1972). It is therefore necessary to examine in some detail the employment practices of Prince William Hospital, even though the material facts are not in dispute.

Prince William is a 154 bed general hospital in Manassas, Virginia. It contains four medical and surgical units, intensive care and cardiac facilities, an obstetric floor with a nursery, four operating rooms, and an emergency room. Average occupancy is 120 patients, 60% Female.

Floor orderlies and nurses' aides provide routine patient care under the supervision of nurses. The hospital hires only men as orderlies and only women as aides. Their numbers varied during the time covered by this case, ranging between 30-40 aides and 5-10 orderlies. ³ When the case was tried, there were four full-time floor orderlies and thirtyfour full-time aides, plus three part-time orderlies and three part-time aides. Full-time employees work five eighthour shifts per week.

The hospital has maintained a pay differential between the two jobs since 1969. ⁴ It uses a pay system with thirteen pay grades and five steps within each grade. Grades are assigned to positions and steps within grade show merit or longevity. All nurses' aides are in grade I, in which the hourly pay ranges from $1.98 to $2.31, and all orderlies are in grade II, in which the hourly pay ranges from $2.08 to $2.43, depending on the step in which the employee has been placed.

Before 1969 aides and orderlies had been paid the same wages, but the hospital had difficulty in hiring orderlies. The hospital's administrator believed that a higher wage was needed to attract orderlies because of the limited number of men willing to do housekeeping and personal care work. When the orderlies' wage was raised, they were given the additional duty of catheterizing male patients.

Hiring criteria for aides and orderlies are identical: a tenth grade education, personal cleanliness, and a desire to work with people. Experience, though desirable, is unnecessary. Although the educational level of the aides was somewhat lower, both groups included individuals who had not finished high school. The pay differential follows neither experience nor education. An aide with prior hospital experience starts in grade I step 2 ($2.06), while a completely inexperienced orderly starts in Grade II step I ($2.08).

Aides and orderlies are the least skilled persons who care for patients. They participate in a common orientation program, but much of their training is acquired on the job. Each is assigned six to eight patients who require routine care. Whenever possible orderlies are assigned to male patients and aides to female, but the shortage of orderlies requires aides to care for males. Most of the time, aides and orderlies are occupied with tasks related to routine patient care that do not require the skills of a trained nurse.

The principal duties of both, which the hospital's director of nursing stated were identical, can be divided into four groups: patient care, which includes oral hygiene, back rubs, baths, bed-making, answering calls, giving bed pans, feeding, transporting the patient, and assistance with ambulation; minor treatment, which includes weighing, taking pulse, temperature, or blood pressure, draping and positioning the patient, administering heat pads and ice packs, assistance with dressing changes, and giving enemas; housekeeping, which includes room cleaning, equipment care and cleaning, work area cleaning, and obtaining supplies; and miscellaneous tasks, including answering the phone, running errands, and transportation to the morgue.

The hospital emphasized statistical evidence which shows that aides and orderlies do not perform all of their routine tasks with equal frequency. One of its exhibits, for example,...