E.E.O.C. v. J.C. Penney Co., Inc.

• Decision Date: 22 June 1988
• Docket Number: No. 86-1139,86-1139
• Citation: 843 F.2d 249
• Parties: 46 Fair Empl.Prac.Cas. 815, 46 Empl. Prac. Dec. P 37,897, 56 USLW 2578, 9 Employee Benefits Ca 1729 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. J.C. PENNEY CO., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 249

843 F.2d 249

46 Fair Empl.Prac.Cas. 815,

46 Empl. Prac. Dec. P 37,897, 56 USLW 2578,

9 Employee Benefits Ca 1729

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. J.C. PENNEY CO., INC., Defendant-Appellee.

No. 86-1139.

United States Court of Appeals Sixth Circuit.

Argued Jan. 22, 1987.

Decided April 4, 1988.

Rehearing and Rehearing En Banc Denied June 22, 1988.

Peggy R. Mastroianni (argued), Johnny J. Butler, General Counsel, E.E.O.C., Trial Services Div., Karen MacRae Smith, Washington, D.C., Miguel Ortiz, Trial Atty., E.E.O.C., Detroit, Mich., for plaintiff-appellant.

Robert A. Marsac (argued), Dykhouse & Wise, Detroit, Mich., for defendant-appellee.

Before ENGEL, Chief Judge ^*, BOGGS, Circuit Judge, and HILLMAN, Chief District Judge. ^**

BOGGS, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC") charges J.C. Penney Company ("Penney") with sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq. The EEOC challenges the "head of household" provision of Penney's medical and dental insurance plan, which permits a Penney employee to elect coverage for his or her spouse only if the spouse earns less than the employee. The district court granted partial summary judgment to Penney, 632 F.Supp. 871, holding that the "head of household" requirement could be challenged only under subsection 703(a)(1) of Title VII rather than subsection (a)(2). ¹ The court further held that disparate impact analysis could be used only in claims under subsection (a)(2), so that the EEOC had to proceed under a disparate treatment analysis and prove intentional discrimination to succeed in its claim under subsection (a)(1).

The trial proceeded under a disparate treatment analysis. The district court found that the "head of household" requirement did have a disparate impact on female employees, but that the EEOC had not proven a discriminatory motive in Penney's adoption of the requirement, and entered judgment for Penney. The EEOC appeals, arguing that the district court erred in holding that disparate impact analysis could not be applied to section 703(a)(1) claims. We hold that even if disparate impact analysis is applied to section 703(a)(1) claims of discrimination in fringe benefits, the "head of household" requirement in this case is a "factor other than sex" so that the resulting differential in compensation is authorized by the Bennett Amendment to Title VII, 42 U.S.C. Sec. 2000e-2(h). Accordingly, we affirm the judgment of the district court.

I

Determining whether disparate impact analysis may be used under section 703(a)(1) as well as (a)(2) is a difficult and unsettled question. The Supreme Court has not had to rule on the issue. The major disparate impact cases, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977), do not differentiate between subsection (a)(1) and (a)(2), but speak only of violations of Title VII or the Act. The Court stated in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-55 n. 15, 52 L.Ed.2d 396 (1977), that "[e]ither theory may, of course, be applied to a particular set of facts." Since then, the Court has clearly held that section 703(a)(2) claims may be pursued on a disparate impact theory, Connecticut v. Teal, 457 U.S. 440, 448, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982), but has specifically reserved the question as to whether disparate impact analysis may be used under section 703(a)(1). Nashville Gas Co. v. Satty, 434 U.S. 136, 144, 98 S.Ct. 347, 352, 54 L.Ed.2d 356 (1977).

The lower courts have generally followed the Supreme Court's lead by not addressing the issue directly. The courts have applied disparate impact analysis to wage compensation claims without considering whether the claims were being brought under section 703(a)(1) or (a)(2). See EEOC v. Ball Corp., 661 F.2d 531, 540 (6th Cir.1981); accord, Liberles v. County of Cook, 709 F.2d 1122, 1130 (7th Cir.1983); Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1302-04 (9th Cir.1982), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 838 (1984). There are only two circuit court decisions which address the question directly. The first, Wambheim v. J.C. Penney Co., 705 F.2d 1492, 1494 (9th Cir.1983), cert. denied, 467 U.S. 1255, 104 S.Ct. 3544, 82 L.Ed.2d 848 (1984), held, without discussion, that section 703(a)(1) allowed the use of disparate impact analysis.

The second and most recent case, Colby v. J.C. Penney Co., 811 F.2d 1119, 1126-27 (7th Cir.1987), analyzed the issue in more detail. The court considered the textual argument that the language "to discriminate" in section 703(a)(1) requires proof of intentional discrimination, while the "tend to deprive" language in (a)(2) allows proof by disparate impact, but held that the contrary assumption of applying disparate impact analysis to section 703(a)(1) claims was too long established to be lightly overruled. The court concluded that disparate impact analysis should be allowed under section 703(a)(1) as it could find no reason why a wage discrimination claim should not receive the same strict scrutiny as a claim of discrimination in hiring or promotion. The court was persuaded that the textual distinction between the two subsections was not clear enough to justify the complex inquiries required if plaintiffs had the benefit of the more liberal "disparate impact" analysis only under section 703(a)(2). It might then be crucial whether "employment opportunities" or "status as an employee" under (a)(2) were coextensive with "terms, conditions, or privileges of employment" under (a)(1).

Previous Sixth Circuit cases assume that either disparate treatment or disparate impact analysis can be applied to a particular set of facts without deciding whether the claim is brought under section 703(a)(1) or (a)(2). Peters v. Wayne State University, 691 F.2d 235, 238-40 (6th Cir.1982), vacated and remanded on other grounds, 463 U.S. 1223, 103 S.Ct. 3566, 77 L.Ed.2d 1406 (1983); Rowe v. Cleveland Pneumatic Co., 690 F.2d 88, 92 (6th Cir.1982); EEOC v. Ball Corp., 661 F.2d 531, 540 (6th Cir.1981). We agree with the reasoning of the Seventh Circuit in Colby that this assumption should not be lightly overturned. We are unwilling to adopt the district court's holding that disparate impact claims cannot be brought under section 703(a)(1) as the rule of decision in the Sixth Circuit, without further guidance from the Supreme Court.

II

However, even assuming that the EEOC could have brought its claim of sex discrimination in fringe benefits under a disparate impact theory, we hold that the "head of household" requirement is a valid "factor other than sex" justifying a differential in benefits under the Bennett Amendment to Title VII, 42 U.S.C. Sec. 2000e-2(h). ² The requirement is therefore not an unlawful employment practice under Title VII and the district court's dismissal of the EEOC's claim was correct.

The Bennett Amendment, the last sentence of section 703(h) of Title VII, was designed to incorporate the affirmative defenses to wage discrimination claims under the Equal Pay Act into Title VII. County of Washington v. Gunther, 452 U.S. 161, 168, 101 S.Ct. 2242, 2247, 68 L.Ed.2d 751 (1981). It 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).

The relevant section of the Equal Pay Act provides:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, 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.

29 U.S.C. Sec. 206(d)(1). The Bennett Amendment's "factor other than sex" defense was raised before the district court, and may properly be considered by this court on appeal.

Penney contends that the Bennett Amendment precludes any claim of wage discrimination based on disparate impact, arguing that the Equal Pay Act allows a wage differential if it is based on any factor other than sex, so that a claim of discrimination based on the disparate impact resulting from the use of this factor would automatically be barred. The Seventh Circuit has accepted this argument in dicta. Colby, 811 F.2d at 1127; American Nurses' Association v. Illinois, 783 F.2d 716, 723 (7th Cir.1986).

In our circuit, however, the Bennett Amendment cannot constitute a blanket bar to all claims of wage discrimination based on disparate impact because the "factor other than sex" defense does not include literally any other factor, but a factor that, at a minimum, was adopted for a legitimate business reason. See Bence v. Detroit Health Corp., 712 F.2d 1024, 1029-31 (6th Cir.1983), cert. denied, 465 U.S. 1025, 104 S.Ct. 1282, 79 L.Ed.2d 685 (1984). See also Odomes v. Nucare, Inc., 653 F.2d 246, 251-52 (6th Cir.1981) (a male-dominated training program was an "illusory" and "post-event" justification for unequal pay; not a valid "factor other than sex."). The legitimate business reason standard was set out by the Ninth Circuit in Kouba v. Allstate...