Shultz v. First Victoria National Bank

• Decision Date: 12 January 1970
• Docket Number: 26971.,No. 26960,26960
• Citation: 420 F.2d 648
• Parties: George P. SHULTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. FIRST VICTORIA NATIONAL BANK, Defendant-Appellee. George P. SHULTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. AMERICAN BANK OF COMMERCE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

420 F.2d 648 (1969)

George P. SHULTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. FIRST VICTORIA NATIONAL BANK, Defendant-Appellee.

George P. SHULTZ, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. AMERICAN BANK OF COMMERCE, Defendant-Appellee.

Nos. 26960, 26971.

United States Court of Appeals Fifth Circuit.

November 28, 1969.

Rehearing Denied and Rehearing Denied January 12, 1970.

Charles Donahue, Solicitor of Labor, Robert E. Nagle, Anastasia T. Dunau, Attys., Bessie Margolin, Associate Solicitor, Edward D. Friedman, Harold C. Nystrom, U. S. Dept. of Labor, Washington, D. C., M. J. Parmenter, Regional Atty., James E. White, James F. Gruben, Dallas, Tex., for plaintiff-appellant.

Richard Henderson, Frank Guittard, Guittard, Henderson, Jones & Lewis, Victoria, Tex., for defendant-appellee First Victoria National Bank.

William S. Fly, Victoria, Tex., Tracy Crawford, Tyler, Tex., for defendant-appellee American Bank of Commerce.

Before JOHN R. BROWN, Chief Judge, DYER, Circuit Judge, and HUNTER, District Judge.

Rehearing Denied and Rehearing En Banc Denied January 12, 1970.

JOHN R. BROWN, Chief Judge.

The Secretary of Labor brought these actions under one of the modern shields of women's rights¹ — the Equal Pay Act of 1963, 29 U.S.C.A. § 206(d) (1).² He was commissioned the champion of the female worker by the Act, which was enacted as an amendment to the Fair Labor Standards Act of 1938,³ and seeks to recover for the female employees of these two banks⁴ the difference between what they were paid and what male employees, allegedly doing equal work, received. And, in addition, he seeks to enjoin the banks from future discrimination.

It is the Secretary's contention that these relatively small banks paid women bookkeepers and tellers substantially less than was paid to male employees performing the same work. He relies heavily on the actual pay differentials at both the First Victoria National Bank⁵ and the American Bank of

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Commerce of Victoria⁶ to demonstrate this. The banks, however, argued that there has been no violation of the Equal Pay Act. First, they contended the inequality in pay was due to differences in the work performed. Second, they claimed that the differential was, to quote the statute, based on a "factor other than sex". (See note 2, supra.) This factor was "a bona fide training program" — a "factor other than sex" approved by the Secretary's Interpretative Bulletin. 29 C.F.R. § 800.148.⁷ The Secretary makes a triple response by

                Table D
                Employee and
                Item Date of Hiring Monthly Salary and Work Assignments Held
                                              (a)       (b)    (c)    (d)
                                              6/64 1/65 1/66 6/66
                 1.   Lester Dorton           $325     350     400     425
                       (hired 2/63)           worked as bookkeeper, drive-in
                                                teller, note teller, assistant
                                                cashier
                 2.   Lillian Berger          $265     280     300     300
                       (hired 9/62 with       worked as proof operator, bookkeeper
                       3 yrs. previous          collection teller, note
                       employment at            teller, paying and receiving
                       same bank)               teller
                 3.   Sandra Hester           $260     275     290     290
                       (hired 6/61)           worked as bookkeeper, proof operator
                                                drive-in teller
                 4.   Velma Hennig            $250     250     275     275
                       (hired 12/55           worked as bookkeeper, paying and
                       with interruptions       receiving teller, head teller
                       totaling 3 years)
                  5.  Delores Watkins         $325     340     355     355
                       (hired 4/56)           worked as proof operator, collection
                                                teller, paying and receiving
                                                teller
                  6.  Carrie Bergman          $325     340     355     355
                       (hired 6/57)           worked as bookkeeper, drive-in
                                                teller, paying and receiving
                                                teller
                

attempting to show that (1) the jobs performed by the employees were the same, (2) the alleged training program was not a "bona fide training program" within the meaning of the Department's Interpretative Bulletin nor (3) was it a "factor other than sex" within the meaning of the statutory exception.⁸

The District Court found it unnecessary to pass on the similarity of the various jobs performed by the employees involved here since it found that the pay differential was based upon a "bona fide training program."⁹ Since this approach impliedly assumed that there was in fact unequal pay for equal work we need consider only whether the District Court was correct in its construction of the statute and of the Interpretative Bulletin. Since we believe that the training program found to exist and to be the basis of the unequal pay was neither a "bona fide training program" within the meaning of the Bulletin nor within the statutory exemption,¹⁰ we must reverse and remand the cases for the District Court to compare the jobs performed by the employees involved here and decide whether in fact under the appropriate burden of proof there was unequal pay for equal work.

The training programs that the District Court found to exist and to be the justification for the unequal pay were informal, unwritten,¹¹ and, if not imaginary, consisted of little more than the recognition of the ability of employees to work their way up the ranks. The training program was supposed to provide rotation for the "trainee" through the various departments of the bank so the employee would more fully comprehend the banks' operations. Such rotation of the male "trainees" was, however, not distinguishable from the normal course of employment for the female employees.¹² The rotation of the "trainee" has apparently been unpredictable, sporadic, and unplanned. The time spent in each department varied widely and was in fact based not upon any concept of training but upon the banks' personnel needs.¹³

Moreover, there was no definite understanding or agreement between the banks and their male employees concerning a training program. Mr. Sheffield, Vice President of First Victoria in charge of personnel, testified that when he hired an employee he did not know if that employee would be "trained" to be an officer.¹⁴ Yet, the male employees were started at substantially higher salaries than female employees performing the same task. For example, Gary Prai started work for First Victoria in 1961 as a paying and receiving teller at $300.00 a month (Table A, Item 1, col. a), while LaRose Halsey, who had worked at the position since 1946 (Table A, Item 2, col. a), received only $290.00 per month.¹⁵

Thus it is apparent that the training programs that the District Court found to exist and be the motivation for the discrimination were not specific and their metes and bounds were at best poorly surveyed. As structured and operated it was little more than a post-event justification for disparate pay to men and women from the commencement of employment up through advancement. The training was essentially the acquiring of skills, and experience and knowledge of the business through continued performance of regular tasks.¹⁶ In this sense every job in every type of business would be training, and nothing would be left for the operation of the Interpretative Bulletin Training program. This was not the Secretary's intention. In addition, the imprecision, in and of itself, of the Banks' training program is not in keeping with the Secretary's Interpretative Bulletin on training programs. (See note 7, supra).

Moreover, such imprecise programs are outside the scope of the broad statutory exception — "a factor other than sex" — (See 29 U.S.C.A. § 206(d) (1) (iv)) because they are not in harmony with the Congressional purpose: The elimination of those subjective assumptions and traditional stereotyped misconceptions regarding the value of women's work.¹⁷ These programs are inconsistent since in actual operation the work and role of the male employees — "trainees" cannot be distinguished from the female workers who do the same jobs and who are likewise learning and growing in the business but without the title of trainee.

The Congressional purpose is clear whether divined by traditional doctrines of statutory construction or, more plausibly, the legislative history with respect to the statutory exception. This legislative intent is expressed by the report of the House committee that favorably reported the bill to the floor:

"This language recognizes that there are many factors which may be used to measure the relationships between jobs and which establish a valid basis for a difference in pay. These factors will be found in a majority of the job classification systems. Thus, it is anticipated that a bona fide job classification program that does not discriminate on the basis of sex will serve as a valid defense to a charge of discrimination.

Three specific exceptions and one broad general exception are also listed. It is the intent of this committee that any discrimination based upon any of these exceptions shall be exempted from the operation of this statute. As it is impossible to list each and every exception, the broad general exclusion has been also included. Thus, among other things, shift differentials, restrictions on or differences based on time of day worked, hours of work, lifting or moving heavy objects, differences based on experience, training, or ability would also be excluded. It also recognizes certain special circumstances, such as "red circle rates." This term is borrowed from War Labor Board parlance and describes certain unusual, higher than normal wage rates which are maintained for many valid reasons. For instance, it is not uncommon for an employer who must reduce help in a skilled job to transfer...