Thompson v. Sawyer

Decision Date27 April 1982
Docket Number80-2429 and 80-2495,Nos. 80-2098,80-2099,s. 80-2098
Parties28 Fair Empl.Prac.Cas. 1614, 25 Wage & Hour Cas. (BN 614, 28 Empl. Prac. Dec. P 32,668, 219 U.S.App.D.C. 393, 94 Lab.Cas. P 34,186 Dorothy M. THOMPSON, et al., Appellants, v. Danford L. SAWYER, Jr., Public Printer, Individually and as Public Printer of the United States, and his agents, assigns and successors in office. Dorothy M. THOMPSON, et al., v. Danford L. SAWYER, Jr., Public Printer, Individually and as Public Printer of the United States, and his agents, assigns and successors in office, Appellant. Dorothy M. THOMPSON, et al., v. Danford L. SAWYER, Jr., Public Printer, Individually and as Public Printer of the United States, and his agents, assigns and successors in office, Appellant. Dorothy M. THOMPSON, et al., Appellants, v. Danford L. SAWYER, Jr., Public Printer, Individually and as Public Printer of the United States, and his agents, assigns and successors in office.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action No. 74-01101).

Robert C. Seldon, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, Royce C. Lamberth, Kenneth M. Raisler and David H. Shapiro, Asst. U. S. Attys., Washington, D. C., were on the brief, for Sawyer, et al., appellants in Nos. 80-2099 and 80-2429, and cross-appellees in Nos. 80-2098 and 80-2495.

Nora A. Bailey and David M. Dorsen, Washington, D. C., with whom Roderic V. O. Boggs, Washington, D. C., was on the brief, for Thompson, et al., appellees in Nos. 80-2099 and 80-2429 and cross-appellants in Nos. 80-2098 and 80-2495.

Before ROBB, MIKVA and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion dissenting in part filed by Circuit Judge ROBB.

MIKVA, Circuit Judge:

This multi-faceted sex discrimination suit was brought by women bindery workers at the Government Printing Office (GPO). They sought relief under two statutes: the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1976), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (1976). The district court granted the bindery workers part of what they sought under each statute, and both sides have appealed. GPO maintains, as to the aspects of the decree it challenges on appeal, that it did not violate either Title VII or the Equal Pay Act; the plaintiffs argue that GPO's conduct violated both statutes more extensively than the district court found. We affirm the judgment of the district court in all respects save as to certain features of the remedy provided under Title VII.

I. THE APPLICABLE STATUTES

The Equal Pay Act prohibits payment of unequal wages for equal work on grounds of sex, unless the difference is justified by one of four enumerated defenses: a seniority system, a merit system, a system that measures pay by quality or quantity of production, or any other factor not based on sex. 29 U.S.C. § 206(d) (1976). It was passed in 1963, as an amendment to the Fair Labor Standards Act (FLSA), Pub.L.No. 88-38, 77 Stat. 56. Under the Equal Pay Act, employees have access to the recovery provided by the FLSA, including unpaid wages and an additional equal amount as "liquidated damages," 29 U.S.C. § 216(b), (c) (Supp. III 1979). Recovery is limited normally to two years, but extended to three years for a willful violation, id. § 255 (1976). In 1974, the definition of "employer" in the FLSA was amended to include public agencies, id. § 203(d) (1976), thus allowing federal employees to sue under the Equal Pay Act.

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice to discriminate with respect to "compensation, terms, conditions, or privileges of employment" on grounds of sex. 42 U.S.C. § 2000e-2(a)(1) (1976). Title VII also prohibits an employer from classifying employees "in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee" because of sex. Id. § 2000e-2(a)(2). If a court finds that an employer has violated Title VII intentionally, it may issue injunctive relief and "such affirmative action as may be appropriate," including back pay reaching to two years before the employee filed the complaint. Id. § 2000e-5(g). Affirmative relief may also include hiring requirements and "front pay"-back pay extended into the future to compensate for the continuing loss of employment opportunities until vacancies become available. See, e.g., B. Schlei & P. Grossman, Employment Discrimination Law 1241 (1976). Suits against the federal government under Title VII were first authorized in 1972, two years before the FLSA was similarly expanded to cover federal employees. 42 U.S.C. § 2000e-16 (1976).

Although allegations of large-scale sexual discrimination are likely to involve complaints under both the Equal Pay Act and Title VII, the interrelationships between the statutes have proved troublesome. The same employment situation may give rise to a claim for relief under either statute. Plaintiffs may recover under both statutes provided each is separately satisfied and the plaintiff does not recover doubly for the same wrong. E.g., Laffey v. Northwest Airlines, 567 F.2d 429, 445 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). For example, a plaintiff may recover under the Equal Pay Act for unequal pay for equal work, and obtain additional recovery under Title VII for discriminatory denial of training or promotion opportunities.

The initial major focus of Title VII was the prohibition of racial discrimination, H.R.Rep.No.914, 88th Cong., 1st Sess. 10 (1963). After Title VII had been amended from the floor to include the prohibition of sexual discrimination, 100 Cong. Rec. 2577 (1964), Congress did not immediately appreciate the potential interplay between the two statutes, although Title VII was considered and adopted by the same Congress only a year after passage of the Equal Pay Act. In order to reconcile the two statutes, Senator Bennett introduced an amendment specifying that differential compensation would not be an unfair employment practice under Title VII if it was "authorized" by the Equal Pay Act, 110 Cong. Rec. 13,310 (1964). This provision, the Bennett Amendment, 42 U.S.C. § 2000e-2(h) (1976), is the only statutory link between Title VII and the Equal Pay Act.

Whether the Bennett Amendment limits recovery for discriminatory compensation under Title VII to situations in which recovery under the Equal Pay Act will also lie, has been a subject of extensive debate. 1 The Supreme Court recently held that the Bennett Amendment incorporates the defenses enumerated in the Equal Pay Act into suits under Title VII for discriminatory compensation, but does not limit such Title VII suits to situations in which the employees would qualify for recovery under the Equal Pay Act. County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). Thus the Court has clarified that the statutes erect separate analytic frameworks that stand on their own but must be interpreted consistently. Id. 101 S.Ct. at 2247. Our analysis, therefore, builds on the recognition that the Equal Pay Act and Title VII differ in scope and provide different remedies for employment discrimination based on sex.

II. THE CONTEXT AND THE LAWSUIT
A. The Government Printing Office

The Government Printing Office is a unit of the legislative branch employing workers in the competitive service. See Joint Appendix (J.A.) 143. Authority to hire workers skilled in the printing trades is vested in the Public Printer, 44 U.S.C. § 305 (Supp. IV 1980). Wages are set by the Printer in conference with a "committee selected by the trades affected," subject to approval by the Joint Committee on Printing of the Congress, id. Workers from the printing trades at GPO, although they hold positions in the competitive service, are not covered by the civil service classification scheme, 5 U.S.C. § 5102(c)(9) (Supp. IV 1980); see J.A. 144.

As a result, mandates against discrimination by GPO have had a somewhat different history from mandates against discrimination in the Executive Branch. The original version of Title VII, although not authorizing suits against the federal government, commanded the President to use his authority to ensure equal employment opportunities within the federal government. Civil Rights Act of 1964 § 701(b), Pub.L.No.88-352, 78 Stat. 254. Under this authority, the President promulgated a succession of Executive Orders mandating equal opportunity. The first anti-discrimination proclamation to cover GPO specifically was Executive Order No. 11478, 34 Fed.Reg. 12,985 (1969), which applied to "those portions of the legislative and judicial branches of the Federal Government ... having positions in the competitive service and to the employees in those positions." In similar language, the 1972 Title VII amendment allowing suits against the federal government embraced GPO, 42 U.S.C. § 2000e-16(a) (1976), as did the 1974 extension of the right to sue the federal government under the Equal Pay Act. 29 U.S.C. § 203(e)(2)(A)(iii) (1976).

Aside from supervisory and managerial personnel, the GPO Bindery employs three classes of workers: journeymen bookbinders, journeymen bindery workers, and printing plant workers. J.A. 147. Journeyman bookbinder is a craft position, that is, a position requiring training in the trade, which in private industry typically is provided through union apprenticeships. Journeymen bindery workers and printing plant workers are classified noncraft by GPO and receive lower wages than bookbinders. J.A. 147-48. When this lawsuit began in 1974, all 279 bookbinders employed by GPO were male; by 1978, only one woman had joined...

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