County of Washington v. Gunther, No. 80-429

CourtUnited States Supreme Court
Writing for the CourtBRENNAN
Citation68 L.Ed.2d 751,101 S.Ct. 2242,452 U.S. 161
PartiesCOUNTY OF WASHINGTON et al., Petitioners, v. Alberta GUNTHER et al
Docket NumberNo. 80-429
Decision Date08 June 1981

452 U.S. 161
101 S.Ct. 2242
68 L.Ed.2d 751
COUNTY OF WASHINGTON et al., Petitioners,

v.

Alberta GUNTHER et al.

No. 80-429.
Argued March 23, 1981.
Decided June 8, 1981.
Syllabus

While VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate in his employment practices on the basis of sex, the last sentence of § 703(h) of Title VII (Bennett Amendment) provides that it shall not be an unlawful employment practice for any employer to differentiate upon the basis of sex in determining the amount of its employees' wages if such differentiation is "authorized" by the Equal Pay Act of 1963. The latter Act, 29 U.S.C. § 206(d), prohibits employers from discriminating on the basis of sex by paying lower wages to employees of one sex than to employees of the other for performing equal work, "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." Respondents, women who were employed as guards in the female section of petitioner county's jail until this section was closed, filed suit under Title VII for backpay and other relief, alleging inter alia, that they had been paid lower wages than male guards in the male section of the jail and that part of this differential was attributable to intentional sex discrimination, since the county set the pay scale for female guards, but not for male guards, at a level lower than that warranted by its own survey of outside markets and the worth of the jobs. The District Court rejected this claim, ruling as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act. The Court of Appeals reversed.

Held : The Bennett Amendment does not restrict Title VII's prohibition of sex-based wage discrimination to claims for equal pay for "equal work." Rather, claims for sex-based wage discrimination can also be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not exempted under the Equal Pay Act's affirmative defenses as to wage differentials attributable to seniority, merit, quantity or quality of production, or any other factor other than sex. Pp. 167-181.

Page 162

(a) The language of the Bennett Amendment—barring sex-based wage discrimination claims under Title VII where the pay differential is "authorized" by the Equal Pay Act—suggests an intention to incorporate into Title VII only the affirmative defenses of the Equal Pay Act, not its prohibitory language requiring equal pay for equal work, which language does not "authorize" anything at all. Nor does this construction of the Amendment render it superfluous. Although the first three affirmative defenses are redundant of provisions elsewhere in § 703(h) of Title VII, the Bennett Amendment guarantees a consistent interpretation of like provisions in both statutes. More importantly, incorporation of the fourth affirmative defense could have significant consequences for Title VII litigation. Pp. 168-171.

(b) The Bennett Amendment's legislative background is fully consistent with this interpretation, and does not support an alternative ruling. Pp. 171-176.

(c) Although some of the earlier interpretations of the Bennett Amendment by the Equal Employment Opportunity Commission may have supported the view that no claim of sex discrimination in compensation may be brought under Title VII except where the Equal Pay Act's "equal work" standard is met, other Commission interpretations frequently adopted the opposite position. And the Commission, in its capacity as amicus curiae, now supports respondents' position. Pp.177-178.

(d) Interpretation of the Bennett Amendment as incorporating only the affirmative defenses of the Equal Pay Act draws additional support from the remedial purposes of the statutes, and interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate, must be avoided. Pp. 178-180.

(e) The contention that respondents' interpretation of the Bennett Amendment places the pay structure of virtually every employer and the entire economy at risk and subject to scrutiny by the federal courts, is inapplicable here. Respondents contend that the county evaluated the worth of their jobs and determined that they should be paid approximately 95% as much as the male officers; that it paid them only about 70% as much, while paying the male officers the full evaluated worth of their jobs; and that the failure of the county to pay respondents the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination. Thus, the suit does not require a court to make its own subjective assessment of the value of the jobs, or to attempt by statistical technique or other method to quantify the effect of sex discrimination on the wage rates. Pp. 180-181.

9 Cir., 602 F.2d 882 and 9 Cir., 623 F.2d 1303, affirmed.

Page 163

Lawrence R. Derr, Portland, Or., for petitioners.

Carol A. Hewitt, Portland, Or., for respondents.

Barry Sullivan for the United States, et al., as amici curiae by special leave of Court.

Justice BRENNAN delivered the opinion of the Court.

The question presented is whether § 703(h) of Title VII of the Civil Rights Act of 1964, 78 Stat. 257, 42 U.S.C. § 2000e-2(h), restricts Title VII's prohibition of sex-based wage discrimination to claims of equal pay for equal work.

I

This case arises over the payment by petitioner, County of Washington, Or., of substantially lower wages to female

Page 164

guards in the female section of the county jail than it paid to male guards in the male section of the jail.1 Respondents are four women who were employed to guard female prisoners and to carry out certain other functions in the jail.2 In January 1974, the county eliminated the female section of the jail, transferred the female prisoners to the jail of a nearby county, and discharged respondents. 20 FEP Cases 788, 790 (Or.1976).

Respondents filed suit against petitioners in Federal District Court under Title VII, 42 U.S.C. § 2000e et seq., seeking backpay and other relief.3 They alleged that they were paid unequal wages for work substantially equal to that performed by male guards, and in the alternative, that part of the pay differential was attributable to intentional sex discrimination.4 The latter allegation was based on a claim

Page 165

that, because of intentional discrimination, the county set the pay scale for female guards, but not for male guards, at a level lower than that warranted by its own survey of outside markets and the worth of the jobs.

After trial, the District Court found that the male guards supervised more than 10 times as many prisoners per guard as did the female guards, and that the females devoted much of their time to less valuable clerical duties. It therefore held that respondents' jobs were not substantially equal to those of the male guards, and that respondents were thus not entitled to equal pay. 20 FEP Cases, at 791. The Court of Appeals affirmed on that issue, and respondents do not seek review of the ruling.

The District Court also dismissed respondents' claim that the discrepancy in pay between the male and female guards was attributable in part to intentional sex discrimination. It held as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act of 1963, 29 U.S.C. § 206(d).5 20 FEP Cases, at 791. The court therefore permitted no additional evidence on this claim, and made no findings on whether petitioner county's pay scales for female guards resulted from intentional sex discrimination.

The Court of Appeals reversed, holding that persons alleging sex discrimination "are not precluded from suing under Title VII to protest . . . discriminatory compensation practices" merely because their jobs were not equal to higher paying jobs held by members of the opposite sex. 602 F.2d 882, 891 (CA9 1979), supplemental opinion on denial of rehearing, 9 Cir., 623 F.2d 1303, 1313, 1317 (1980). The court remanded to the District Court with instructions to take evidence on respondents' claim that part of the difference between their rate of pay and that of the male guards is attributable to sex

Page 166

discrimination. We granted certiorari, 449 U.S. 950, 101 S.Ct. 352, 66 L.Ed.2d 213 (1980), and now affirm.

We emphasize at the outset the narrowness of the question before us in this case. Respondents' claim is not based on the controversial concept of "comparable worth," 6 under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.7 Rather, respondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consisting of setting the wage scale for female guards, but not for male guards, at a level lower than its own survey of outside markets and the worth of the jobs warranted. The narrow question in this case is whether such a claim is precluded by the last sentence of § 703(h) of Title VII, called the "Bennett Amendment." 8

Page 167

II

Title VII makes it an unlawful employment practice for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a). The Bennett Amendment to Title VII, however provides:

"It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining...

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453 practice notes
  • Reports and guidance documents; availability, etc.: Systemic compensation discrimination; nondiscrimination requirements; interpretive standards,
    • United States
    • Federal Register June 16, 2006
    • June 16, 2006
    ...the intent is simply to permit the type of unique compensation discrimination claim approved of in County of Washington v. Gunther, 452 U.S. 161, 166 (1981) (``[R]espondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consist......
  • Part VI
    • United States
    • Federal Register June 16, 2006
    • June 16, 2006
    ...the intent is simply to permit the type of unique compensation discrimination claim approved of in County of Washington v. Gunther, 452 U.S. 161, 166 (1981) (``[R]espondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consist......
  • Forsberg v. Pacific Northwest Bell Telephone Co., Nos. 86-4054
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 27, 1988
    ...equality test applied to claims asserted under the EPA. Gunther v. County of Washington, 623 F.2d 1303, 1313 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Forsberg's EPA claim could not survive summary judgment; therefore, her equal pay claim under Title VII al......
  • School Dist. No. 1, Multnomah County v. Mission Ins. Co., No. A7707-09610
    • United States
    • Court of Appeals of Oregon
    • August 25, 1982
    ...that the district intentionally discriminated against the girls' track coaches under those allegations, County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), a showing of intentional discrimination on the basis of sex is not necessary to the establishment of ......
  • Request a trial to view additional results
448 cases
  • Forsberg v. Pacific Northwest Bell Telephone Co., Nos. 86-4054
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 27, 1988
    ...equality test applied to claims asserted under the EPA. Gunther v. County of Washington, 623 F.2d 1303, 1313 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Forsberg's EPA claim could not survive summary judgment; therefore, her equal pay claim under Title VII al......
  • School Dist. No. 1, Multnomah County v. Mission Ins. Co., No. A7707-09610
    • United States
    • Court of Appeals of Oregon
    • August 25, 1982
    ...that the district intentionally discriminated against the girls' track coaches under those allegations, County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981), a showing of intentional discrimination on the basis of sex is not necessary to the establishment of ......
  • Spaulding v. University of Washington, No. 82-3038
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • November 26, 1984
    ...master was preparing his findings and conclusions, we decided Gunther v. County of Washington, 623 F.2d 1303 (9th Cir.1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) (Gunther). We held that a plaintiff who fails to show that he performs substantially equal work is not prec......
  • Glunt v. Ges Exposition Services, Inc., No. AW-99-3013.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 11, 2000
    ...incorporated the four affirmative defenses of the EPA into Title VII wage discrimination claims. County of Washington v. Gunther, 452 U.S. 161, 168, 101 S.Ct. 2242, 2247, 68 L.Ed.2d 751 (1981). Therefore, the defendant may advance these affirmative defenses as legitimate nondiscriminatory r......
  • Request a trial to view additional results
3 books & journal articles
  • Three Decades of Experience with the Equal Pay Act
    • United States
    • Review of Public Personnel Administration Nbr. 13-4, October 1993
    • October 1, 1993
    ...Association (1991). 935 F.2d 974.Corning Glass Works v. Brennan (1974). 417 U.S. 188.County of Washington, Oregon v. Gunther (1981). 452 U.S. 161.Covington v. Southern Illinois University (1987). 816 F.2d 317.Ende v. Board of Regents of Regency Universities (1985). 757 F.2d 176.Epstein v. U......
  • The Supreme Court and Sex Discrimination: the Role of the Solicitor General
    • United States
    • Political Research Quarterly Nbr. 41-3, September 1988
    • September 1, 1988
    ...Mutual, 446 U.S. 142. Kirchberg v. Feenstra, 450 U.S. 455. Michael M. v. Sonoma County, 450 U.S. 464. County of Washington v. Gunther, 452 U.S. 161. Rostker v. Goldberg, 453 U.S. 57.North Haven v. Bell, 456 U.S. 512.Newport News Shipbuilding v. EEOC, 462 U.S. 669.Lehr v. Robertson, 463 U.S.......
  • Comparable Worth: Is it a Moot Issue? Part II: The Legal and Juridical Posture
    • United States
    • Public Personnel Management Nbr. 23-2, June 1994
    • June 1, 1994
    ...unless it also violated the Equal Pay Act" (Aldrich & Buchele, 1986:47). This position was challenged in County of Washington v. Gunther, 452 U.S. 161 (1981) (Aldrich & Buchele, 1986; Hutner, 1986; Lorber et al., 1985; Weiler, 1986; Willborn, 1986). 272 Public Personnel Management Vol. 23 N......

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