Usery v. Allegheny County Inst. Dist.

• Citation: 544 F.2d 148
• Decision Date: 28 October 1976
• Docket Number: No. 76-1079,76-1079
• Parties: 13 Fair Empl.Prac.Cas. 1188, 22 Wage & Hour Cas. (BN 1382, 12 Empl. Prac. Dec. P 11,221, 79 Lab.Cas. P 33,440 W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Appellant, v. ALLEGHENY COUNTY INSTITUTION DISTRICT d/b/a John J. Kane Hospital, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 148

544 F.2d 148

13 Fair Empl.Prac.Cas. 1188,

22 Wage & Hour Cas. (BN 1382,

12 Empl. Prac. Dec. P 11,221, 79 Lab.Cas. P 33,440

W. J. USERY, Jr., Secretary of Labor, United States Department of Labor, Appellant, v. ALLEGHENY COUNTY INSTITUTION DISTRICT d/b/a John J. Kane Hospital, Appellee.

No. 76-1079.

United States Court of Appeals Third Circuit.

Argued Sept. 13, 1976.

Decided Oct. 28, 1976.

William J. Kilberg, Sol. of Labor, Carin Ann Clauss, Associate Sol., Lois G. Williams, Atty., U.S. Dept. of Labor, Washington, D.C., for appellant.

Marshall H. Harris, Reg. Sol., Philadelphia, Pa., Alexander J. Jaffurs, County Sol., Thomas H. M. Hough, Asst. County Solicitor and Special Labor Counsel, Pittsburgh, Pa., for appellee.

OPINION OF THE COURT

Before SEITZ, Chief Judge, ALDISERT and GIBBONS, Circuit Judges.

GIBBONS, Circuit Judge.

The Secretary of Labor appeals from a final order dismissing a suit for injunctive relief against violations of § 6(d)(1) of the Equal Pay Act of 1963. 29 U.S.C. § 206(d)(1). ¹ The complaint alleges that the defendant Allegheny County Institution District (District), operator of the John J. Kane Hospital, has violated the act at that hospital by discriminating on the basis of sex in the wages paid to employees performing work which requires equal skill, effort and responsibility and which is performed under similar working conditions. Specifically, the complaint alleges pay discrimination between female beauticians and male barbers, who provided hair care for patients of the hospital. After a trial the district court ruled that the admitted wage differential was not a violation. The court assumed that the defendant, a political subdivision of the Commonwealth of Pennsylvania, was subject to the Act. The judgment

appealed from was rendered prior to the Supreme Court's decision in National League of Cities et al. v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976). On appeal the defendant urges as an additional ground for affirmance that under the tenth amendment it is exempt from the Equal Pay Act. We reverse.

I THE VIOLATION

If the district court was correct in finding that there was no Equal Pay Act violation we would be obliged to affirm on that ground and thereby avoid a decision on the constitutional law issue tendered on appeal by the defendant's reliance on the tenth amendment. Thus we consider the issue of statutory violation first. ²

Defendant employs three beauticians and three barbers to minister to the tonsorial and cosmetic needs of Kane Hospital's 700 male and 1300 female geriatric patients. The three barbers, all men, earn $165 a month more than the three beauticians, all women. The district court held that there was no violation of the Act because (a) the Secretary failed to prove that the work performed by the barbers and beauticians was equal, and (b) even assuming the Secretary proved that the work was equal the inequality of pay was authorized by 29 U.S.C. § 206(d)(1)(iv) as a differential based on a factor other than sex. Since the parties stipulated to the wage differential and to the similarity of working conditions, the two statutory issues which were tried were "equal work" and "factor other than sex."

(a) Equal Work

The district court made a conclusion of law, designated as such, that "(t)he work performed by the barbers is substantially different than the work performed by the beauticians . . . and each have different skills, duties, work performance and responsibilities, and each exerts unequal effort in the performance of their jobs." That conclusion of law must find support in the court's findings of fact, and they in turn in the record. The district court made findings on the following:

(1) Basic Work:

Women: "The female beauticians are engaged in basic hair care for female patients."

Men: "The barbers are engaged in basic hair care for the male patients."

(2) Hours:

Women: "All beauticians work from 7:30 a. m. to 3:30 p. m. Monday through Friday."

Men: "All the male barbers work from 8:00 a. m. to 4:00 p. m. Monday through Friday."

(3) Place of Work:

Women: "The work of the beauticians is divided between the floors in the women's section of the hospital and the beauty shop."

Men: "Usually in the morning, the barbers work on the floors of the hospital in the men's sections; in the afternoon one barber works in the barber shop while the other two work on the floors of the hospital."

(4) Predominant Activity:

Women: "Between 50% and 75% (of time) is spent in cutting hair . . . ."

Men: "The skills used by the barbers are strictly barbering the hair of all the male patients except four or five. . . . Hair cutting is done on the floors and in the barber shop."

(5) Additional Activities:

Women: "In addition, 25% to 50% of their time is spent in the beauty shop giving permanents, hair sets, straightening and relaxing hair. On Men: "They do not shave the men as a general rule. The hospital aides shave the men; on occasion the barbers will help out if there is a problem. One half to two hours every two weeks they teach the hospital aides how to shave. . . . They do not shampoo or manicure patients or use chemical lotions."

occasion they shampoo a patient, and do nail polishing and nail filing when requested. Many of the women patients need to be shaved; the beauticians shave them with an electric razor."

Both: "Both report scalp diseases to hospital nurses. Both perform their respective skills for bedridden patients and those in geriatric chairs. At the end of each day both clean their tools and do some light cleaning of respective shops."

(6) Patient Responsibilities:

Women: "There are approximately 1300 female patients at the hospital."

". . . a beautician spends thirty to forty minutes to complete a hair straightening process, and one hour to an hour fifteen minutes to give a hair set."

". . . The responsibility of the beauticians is to cut the hair and perform additional beauty skills to the female patients who need or request their services."

Men: "There are approximately 700 male patients at the hospital."

". . . barbers on the average spend ten to twenty minutes cutting the hair of a male patient . . . ."

". . . The responsibility of barbers is to cut the hair of over 700 male patients."

(7) Tools:

Women: "The tools used by beauticians are scissors, thinning shears, combs, brushes, various chemical lotions, oils and creams, clippers, bobby pins, clips, irons, rollers, and electric razors. They keep a hair dryer and heater in the beauty shop. The beauticians convey their tools to the floors on a cart."

Men: "The tools used by barbers are scissors, thinning shears, combs, a clipper, a trimming clipper and neck duster. The barbers convey their tools to the floors in a kit."

(8) Effort of Performance:

"Unlike the barbers, the beauticians use several tools in addition to the basic scissors, clippers and combs which use requires more effort of performance."

(Citations to trial transcript deleted).

In view of these findings of fact on basic work hours, place of work, predominant activity, additional activities, patient responsibilities, tools, and effort, the district court erred in making the conclusion of law that the work of the barbers and the beauticians was not equal within the meaning of the statute. "Congress did not intend that inconsequential differences in job content would be a valid excuse for payments of a lower wage to an employee of one sex than to an employee of the opposite sex if the two are performing equal work on essentially the same jobs in the same establishment." 29 C.F.R. § 800.120 (1974). The statutory test is "equal skill, effort and responsibility." 29 U.S.C. § 206(d)(1).

The district court findings of fact establish that in the predominant activity, hair care of geriatric patients, the beauticians employ skill, effort, and responsibility at least equal to that of the barbers. To the extent that the beauticians perform additional duties they are duties involving higher skill and greater effort.

". . . where employees of opposite sexes are employed in jobs in which the duties they are required to perform and the working conditions are substantially the same, except that an employee of one sex is required to perform some duty or duties involving a higher skill which an employee of the other sex is not required to perform, the fact that the duties are different in this respect is insufficient to The quoted regulation perfectly fits the facts found by the district court. ³ The only difference between the two jobs is that in addition to the basic task of hair care for geriatric patients the lower paid beauticians also perform cosmetic and styling tasks requiring greater skill and effort than that expended by the barbers. The basic job, skill, effort and responsibility appear to be substantially equal. ⁴

remove the jobs from the application of equal pay standard if it also appears that the employer is paying a lower wage rate to the employee performing the additional duties notwithstanding the additional skill which they involve." 29 C.F.R. § 800.122 (1974).

Although the district court made no findings as to differences in education between beauticians and barbers, the defendant points to the evidence respecting such differences to bolster its contention that the jobs are not substantially equal. Training and education are elements of skill for the purposes of the Act. 29 C.F.R. § 800.125 (1974). In this case, however, the evidence on training tends to show similarity rather than dissimilarity of skills. Both beauticians and barbers must attend 1250 hours of required schooling in not less than nine months. The curricula of the two types of schools overlap to the extent of about 75% of the subject matter. Both beauticians and barbers study haircutting, sanitation, sterilization, and the use of antiseptics, cosmetics and electrical appliances. Barbers also study honing and stropping, skills which the...