Town of West Hartford v. Commission on Human Rights and Opportunities

• Citation: 407 A.2d 964,176 Conn. 291
• Parties: , 19 Empl. Prac. Dec. P 8948 TOWN OF WEST HARTFORD v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.
• Decision Date: 05 December 1978
• Court: Connecticut Supreme Court

Page 964

407 A.2d 964

176 Conn. 291, 19 Empl. Prac. Dec. P 8948

TOWN OF WEST HARTFORD v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES.

Supreme Court of Connecticut.

Argued Oct. 11, 1978.

Decided Dec. 5, 1978.

Richard J. Lynch, Asst. Atty. Gen., with whom, on the brief, were Carl R. Ajello, Atty. Gen. and Bernard F. McGovern, Asst. Atty. Gen., for appellant (defendant).

William L. Wilkinson, Asst. Corp. Counsel, Hartford, with whom was Steven R. Humphrey, Corp. Counsel, Hartford, for appellee (plaintiff).

Before COTTER, C. J., and BOGDANSKI, LONGO, SPEZIALE and PETERS, JJ.

PETERS, Associate Justice.

The defendant commission on human rights and opportunities has appealed from a judgment of the trial court reversing the decision of a hearing tribunal appointed by the commission under § 31-127 of the General Statutes. The tribunal had held that the plaintiff town of West Hartford had unlawfully discriminated on the basis of sex in respect to the wages and benefits of certain women hired as communications center operators by the town in 1971 and thereafter.

Until 1971, West Hartford had employed uniformed fire dispatchers and police dispatchers to staff separate communications centers for each service. They were paid on the same pay scale as were fire fighters and patrolmen, respectively. Acting upon the recommendations of outside consultants, the town concluded that efficiency and economy would be promoted by the creation of a consolidated dispatching service that would employ civilian workers instead of uniformed firemen and policemen. The town expected to be able to hire civilian communications center operators for the consolidated service at a considerably lower rate of pay than that to which uniformed personnel were entitled. In 1971, for the new position of communications center operator the town set a salary range of $5810 to $6797, while basic fire dispatchers received an annual salary in the range of $8060 to $9672.

The hearing tribunal found, and the trial court agreed, that the town made a conscious decision to staff the new communications center by hiring women. A joint memorandum from the police chief and the fire chief to the town manager recommended the employment of "10 women civilians in the age bracket of the early or late 50's." Other town personnel acquiesced in this recommendation. Advertisements for the new position were limited to the female advertising section of newspapers. Only women were hired; three men applied but were either unqualified or decided to withdraw. ¹

The eight individual complainants in this case initiated separate actions, ² starting in November of 1971 and continuing through amendment of complaints until May of 1973, alleging that the town's policy of deliberately hiring lower-paid women as communications center operators to replace higher-paid fire dispatchers constituted discrimination on the basis of sex in violation of § 31-126 of the General Statutes. ³ The pertinent language of § 31-126 provides: "It shall be an unfair employment practice (a) For an employer . . . except in the case of a bona fide occupational qualification or need, because of the . . . sex . . . of any individual . . . to discriminate against him in compensation or in terms, conditions or privileges of employment."

The gravamen of the complaints was that the work of a communications center operator was substantially the same as that of a fire dispatcher. In the original complaints there are repeated references to "the men who previously held the position in which I now work." The evidence developed before the hearing examiner established that, after a short period of transition, no ordinary fire fighters continued to act as dispatchers. Those previously assigned to duties as dispatchers either transferred to active fire-fighting positions or retired. Lieutenant Lloyd S. O'Dell, however who had been supervisor of the fire dispatchers since 1968, remained at the communications center as a supervisor at a salary based upon the fire dispatcher's pay scale from 1971 until he retired in 1975. The hearing tribunal ultimately found that, despite his title, Lieutenant O'Dell performed substantially the same work as did the women who worked as communications center operators. The hearing tribunal therefore concluded that the continued disparity in rates of pay and benefits between Lieutenant O'Dell and the communications center operators violated § 31-126(a). It ordered back pay to the named complainants in "an amount equal to the difference in pay between the (starting) male dispatcher's pay . . . and what the communications center operators actually received as pay," as well as an "amount equal to all other monetary benefits" received by dispatchers but not by communications center operators.

The town of West Hartford, aggrieved by this order, appealed to the Court of Common Pleas. In that court, and in the proceedings here, the claim of unequal pay has become, without objection, the surrogate for the totality of monetary relief awarded by the hearing tribunal. The court below accepted all of the findings of fact of the hearing tribunal; see General Statutes § 31-128(b); Board of Education v. Commission on Civil Rights, 153 Conn. 652, 659, 220 A.2d 278 (1966); including the crucial finding that Lieutenant O'Dell "performed essentially the same duties as the female operators although he considered himself the supervisor." The court also agreed with the hearing tribunal's theory that pay differentials between men and women can be evidence of discrimination, and that such differentials are not justifiable if male and female employees actually perform work of substantially equal skill, effort, and responsibility. See Peltier v. City of Fargo, 533 F.2d 374 (8th Cir. 1976); Hodgson v. Fairmont Supply Co., 454 F.2d 490 (4th Cir. 1972); Hodgson v. American Bank of Commerce 447 F.2d 416 (5th Cir. 1971); Veeder-Root Co. v. Commission on Human Rights & Opportunities, 165 Conn. 318, 334 A.2d 443 (1973); Mize v. State Division of Human Rights, 38 App.Div.2d 278, 328 N.Y.S.2d 983 (1972), affirmed, 31 N.Y.2d 1032, 342 N.Y.S.2d 65, 294 N.E.2d 851 (1973), modified, 33 N.Y.2d 53, 349 N.Y.S.2d 364, 304 N.E.2d 231 (1973). Nonetheless, the trial court sustained the town's appeal, concluding (1) that the town's hiring practice was not designed to discriminate against women, but rather was in favor of women, and (2) that the status of Lieutenant O'Dell as a lieutenant and as a supervisor was sufficiently distinguishable from that of the communications center operators to warrant a difference in pay scale. ⁴ The commission on human rights and opportunities in turn has appealed from that judgment to this court.

Before we deal with the merits of...