EEOC v. McCarthy

• Decision Date: 15 July 1983
• Docket Number: Civ. Cr. No. 76-2149-Z.
• Citation: 578 F. Supp. 45
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. D. Justin McCARTHY, et al.
• Court: U.S. District Court — District of Massachusetts

578 F. Supp. 45

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. D. Justin McCARTHY, et al.

Civ. Cr. No. 76-2149-Z.

United States District Court, D. Massachusetts.

July 15, 1983.

Marcy Schwartz, E.E.O.C., New York City, for plaintiff.

Elliot D. Lobel, Mahoney, Hawkes & Goldings, Boston, Mass., for defendants.

MEMORANDUM OF DECISION

ZOBEL, District Judge.

This action, filed in 1976, alleges that women teaching at Framingham State College ("FSC") have received salaries lower than their male colleagues performing equivalent work, in violation of the Equal Pay Act, 29 U.S.C. § 206(d) (the "Act"). The parties stipulated that the work of men and women faculty at FSC was equal in most respects and agreed that the only issues to be tried were

1) Whether women members of the faculty have been paid less than men; and

2) Whether the work performed by men and women required equal skill; and

3) If a disparity is found, whether it was legally justified by virtue of the implementation of a bona fide merit system.

In addition, plaintiff alleges and defendants deny that such violations as occurred were willful. 29 U.S.C. § 255. On the basis of the parties' stipulation, the testimony adduced in court, and the exhibits submitted by the parties, I conclude that the Equal Employment Opportunity Commission (the "E.E.O.C.") has proven that the defendants, the President of FSC and the Board of Trustees of State Colleges, have willfully violated the Act and that women who have been underpaid are entitled to back pay for all years since 1973.

29 U.S.C. § 206(d)(1) 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: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

In suits alleging violations of this section, the burden is initially on the plaintiff to "show that an employer pays different wages to male and female employees 'for equal work or jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions.'" Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed.2d 1 (1974). Once a plaintiff has made this prima facie showing, a "heavy" burden is imposed upon defendants to show that one of the exceptions, which are to be narrowly construed, is applicable. Odomes v. Nucare, Inc., 653 F.2d 246, 251 (6th Cir.1981); E.E.O.C. v. Aetna Insurance Company, 616 F.2d 719, 724 (4th Cir.1980).

Given the parties' definition of the triable issues and the respective burdens of proof, the two elements which the E.E.O.C. had to demonstrate were that different wages were paid to the sexes and that the jobs performed by the sexes required equal skill. Skill was defined by the stipulation as "including considerations of experience, training and education." Neither party asserted that, except for those differences in job requirements which might be due to department, experience or seniority, men and women performed jobs of qualitatively different types; rather, the focus was on the skill which the individual teachers actually brought with them to their jobs.¹

Plaintiff's sole witness was Dr. Stephan Michaelson, a statistical expert. Dr. Michaelson testified that in using data provided by defendants he had determined that in every year analyzed, from 1969 through 1977, women were paid less than men situated similarly for purposes of salary determination, except during the first year of their employment. In other words, although men and women with similar characteristics — rank, department, and prior experience — initially were paid equally, pay became increasingly unequal as equal amounts of seniority accrued.

Dr. Michaelson obtained his results through the use of multiple regression analysis, a recognized technique which isolates variables and determines their effect on a single dependent variable such as salary. He concluded that the divergences in salaries of men and women could not be explained by other variables (rank, department, previous experience² or differences in seniority) which would normally result in differences in pay. Although a full professor is likely to be paid more than an assistant professor or a lecturer, and some departments, such as Physics, pay higher faculty salaries than do others, such as English, these factors did not produce the average differences in salary paid to men and women.

Using other statistical techniques, Dr. Michaelson checked the reliability of his conclusions and found that the probability of his results being due to chance was, depending on the year, from one-half of one percent to one one-thousandth of one percent. He also found that the multiple regression equation, through which he arrived at his conclusions, could explain over eighty-five percent of the professional salaries at FSC in any given year.

Defendants' expert, Dr. Richard Freeman, testified that he had performed calculations similar to Dr. Michaelson's and had found that although on the average women were paid less than men, it was not by a statistically significant amount. He stated that he had examined Dr. Michaelson's report and found nothing objectionable in Dr. Michaelson's calculations or model. He believed that their different results could perhaps be explained by their use of different data.

Having carefully considered the testimony of both experts, I accept the conclusions of Dr. Michaelson. He was working from data provided by defendants, whose own expert admitted that he could find no fault with Dr. Michaelson's results, given the data that Dr. Michaelson used. Although defendants argue that Dr. Michaelson did not adequately consider the impact of possession of a PhD on salary, I am persuaded that, as Dr. Michaelson testified, this factor was subsumed into his treatment of the variable of rank. At FSC, rank is in large part determined by possession vel non of a PhD. In addition, Dr. Freeman testified that he did not seek to explain the differences in his and Dr. Michaelson's studies by their differing treatment of PhDs. Likewise, although defendants contend that Dr. Michaelson did not adequately rate prior experience, Dr. Freeman testified that he could not identify any single factor other than "data" as an explanation for their differing results. In any event, I find Dr. Michaelson's evaluation of prior experience reasonable and unbiased, whereas the prior...