*1 rеspondent Phyllis January respondent On J. Potter’s reconsideration filed 31 and February Bureau of Labor and Industries’ reconsideration filed granted; reconsiderations (61 opinion App 182, 656 353) August former Or P2d affirmed as modified 25, 1983 (295 840) petitions for review allowed Or October See 298 Or P2d 475 PORTLAND,
CITY OF Petitioner, al, BUREAU OF LABOR AND INDUSTRIES et Respondents. (29-78; CA A21748) Merten, Portland, Charles J. Yugler, Richard S. respondent Phyllis petition. J. Potter’s Frohnmayer, Attorney General,
Dave F. Long, Stаnton General, General, Deputy Attorney Gary, F. William Solicitor General, Salem, Attorney Reynolds, Assistant and Michael D. respondent petition. Bureau of Labor and Industries’ HOOMISSEN, J. VAN
Newman, J., part; dissenting part. concurring
VANHOOMISSEN, J. by the finding we reversed opinion, earlier our an unlawful had committed petitioner Commissioner 659.030(1) by dis- under ORS practice employment upheld of her sex. We against claimant criminating unlawfully had finding petitioner the Commissioner’s of dis- complaints оf her claimant because against retaliated 659.030(4) (1975). therefore reversed We crimination. ORS however, remanded we pay; award of back the Commissioner’s distress, at one which $15,000 for emotional damage award of only peti- findings was tied in the Commissioner’s point because we employment practices,” “unlawful tioner’s claim- compensation for to determine if that award was unable revеrsed, her or for claim, which we ant’s discrimination claim, upheld. we retaliation reconsideration, claimant and petitions
In their of the Commissioner’s portions the Commissioner cite other suffering mental clearly state that claimant’s findings which retaliation and only petitioner’s from unlawful resulted $15,000 award was any disparity, and that from damages she suffered compensate intended to *3 because of the retaliation alone. modified to affirm granted;
Reconsideration retaliation; $15,000 for affirmed as modified. damage award NEWMAN, J., dissenting part. concurring part; affirmance of the majority’s original I concur with damage and affirmance of present retaliation claim its of the retaliation claim. suffering mental because award for finding should, however, also affirm the Commissioner’s We employment practice petitioner that committed an unlawful 659.030(1) by discriminating against under ORS Accordingly, I backpay award. and reinstate the because of sex opinion which majority’s portion dissent from that pay award. reverses the back the Commissioner’s opinion reverses majority
The disparate wage discrimination, ruling'that sex finding of is not substantial substantially equal work sexes for between of sex and compensation evidence of discrimination sys- City’s “merit disprove the has the burden to that claimant analysis wrong. majority’s defense. The tem” fact, After detailed of making findings Commis- sioner found: significant
“No distinction was made between the actual responsibilities Complainant, duties and of William Arata and conclusion, Complainant, Bernard Schuette. William Arata work, substantially equal per- and Bernard Schuette did skills, efforts, required substantially equal formance of which working and under similar conditions.
a* * * * *
“3) During employment person, her as East Precinct desk Complainant was classified as a Police Records II Clerk compensated pay according to the scale for that classification. During employment persons, as East Precinct desk William Arata and Bernard Schuette were classified as compensated pay according officers and to the for scale Complainant compensated classification. at a lower rate pay that was either William Arata Bernard or Schuette.” finding unequal pay substantially equal
This work is supported by record, substantial evidence in the and we are 183.482(8). original opinion bound it. ORS majority dispute does not the finding, but states: «* * * disagree we that that alone amounts to discrimina- ” Portland v. employment tion in ‘because of sex.’ Ind., Bureau Labor 182, 189, App (1982). majority opinion authority cites no for its erroneous con- clusion. correctly argues
Claimant the Commissioner’s unequal substantially equal that she received finding work establishes a case of discrimination prima illegal facie 659.030(1). argues correctly under ORS She also that estab- lishment of a case shifted the burden to the come that the differential was on forward with based some factor other than sex. *4 counterparts
The federal to ORS 659.030 and ORS Pay Act, Equal respectively. 652.220 are Title VII and the Oregon’s rights patterned Because civil laws are on federal law, helpful identify discriminatory federal to precedent Rev., v. 273 Or employment practices. Co-Oper. Dept. U. of O. of 539, 542 (1975). claim arises under equal pay P2d 900 When an
345 either Act, or both Title VII and the fеderal Equal Pay federal courts have held that these statutes should be read together and in harmony. Gunther v. County Washington, of (9th 1979); 623 F2d 1303 161, 101 S 2242,68 Cir 452 US Ct aff’d L (1981); Ed 2d Commerce, etc., 751 DiSalvo v. Chamber of (8th 1978). F2d 593 Cir Federal courts have looked to decisions interpreting the Equal Pay guidance Act for in examining pay discrimination claims asserted under Title VII. Gunther v. County Washington, Hays Forests, supra; Inc., v. Potlatch of (8th 1972). F2d 1081 Cir If a discrimination claim under Title VII is based оn denial of equal pay equal work, Equal Pay Act standards are applicable. County Gunther v. Wash of ington, supra, 623 F2d at applicable 1318. The standards have been summarized as follows:
“* * * typical In a wage case, plaintiff discrimination (1) bears the initial burden to show that: the work of the employees equal skill, effort, required of one sex the exercise substantially responsibility performed and was under working conditions employees similar to that of opposite sex; (2) to men unequal. and women was Corning Brennan, Glass Works 188, 195, v. 417 U.S. 94 S.Ct. 2223, 2228, 41 (1974). L.Ed.2d The burden then shifts to the employerto unequal pay show that the seniority results from a system, system, merit tying earning productivity, any or factor other 2000e-2(h); than sex. 42 Corning U.S.C. § Works, Glass Corp., 417 U.S. at S.Ct. at 2229.”Piva v. Xerox 591, 598-99(9th 1981). F2d Cir
The Commissioner’s finding unequal pay for sub- stantially equal work establishes a facie case of discrimi- nаtion under ORS 659.030. Although the burden of establish her case preponderance of the evidence claimant, remained on when she established a prima case facie of discrimination, the City then had the burden to come for- ward with a sexually explanation neutral for the differen- tial. Absent such an explanation, the complainant’s prima case is enough support finding. Commissioner’s
The conсept of shifting burdens of going forward in
employment discrimination cases
recognized.
has been
See
School
Nilsen,
District No. 1
271 Or
346 Labor, App v. Bureau Fire Protection Clackamas Co. (1981). 141, P2d rev den Or Green, 411 US Douglas Corp.
See McDonnell v. also (1973), Ed 2d 668 and later decisions 93 S Ct 36 L cases to order of in discrimination relating burden and (42 the Act of 1964 USC 2000e Rights under Title Civil VII § et seq.) in compen- for difference City’s explanation
The the “the civil claimant and Arata and Schuette was sation between rejected merit.” The Commissioner system service based on had failed to explanation City that and concluded that the non- coming legitimate a carry its burden forward with The discriminatory reason for the differential. Commis- (1) not system system, the a merit sioner found: was individuals merit had to do with the received nothing system the a classifica- system; sex-segregated the was II virtually all PRC system occupied tion in which women virtually posi- all officer positions occupied and men the support evidence to tions. The record contains substantial findings. Commissioner’s original majority opinion
The states: argues city ‘to establish “The that the failed Commissioner pre- city’s system” anything other than a that the “merit was practices.’ discriminatory pay The claimant bore the text for the use proof on issue. There is no evidence that burden of city accomplish a job to its aims was the of a classification Portland on pretext job discrimination based sex.” Ind., supra, Labor and App 189. Bureau of Or at The not on claimant analysis wrong. That burden was pretext was a for dis- city’s show classification The a case. bur- crimination. Claimant established non- legitimate, on come forward with den was pay disparity discriminatory justification It failed to do so. based on factors other than sex. sys- system was not merit City’s classification determining fixing factor
tem, was not the because merit how- City argues, compensation employes. rate of ever, that, system was nonethe- civil service classification its pay disparity for the neutral sexually justification less a between claimant and Arata City empha- and Schuette. The the general requirements sizes differences in the of PRC IIs and sworn police officers. The Commissioner addressed this argument: upon potential, defense focused or the- “[Petitioner’s]
oretical, of the two classifications comparators involved. This mаtter does turn on how the classified, they were but on how utilized. It involves a utilization is becoming increasingly situation which compensation familiar in gender. cases based on The male comparators position worked which under- or mis-utilized persons classification, of their often because were near *6 comparator retirement or disabled. The female worked the position, same but appears it involved work which to have beyond been clerical her classification. She was over-utilized for her Although comparators compen- classification. the were classifications, sated according respective they to their did not work according those classifications. Their actual work was substantially equal. officers, police
“As Officers Arata and Schuette did have some Complainant theoretical which did not have. upon respon- defense herein focused those [Petitioner’s] supposed sibilities Officers which Arata and Schuette were carry carry they police out or able to be out because were * * * Testimony respon- officers. showed that the theoretical distinguished Complainant sibilities which from Officers Arata They and Schuette were or never seldom exercised. compen- therefore are a lawful in disparity not defense the comparators, sation the they between because not do concern actually work performed. Responsibility concerning firearms provides pertinent example. police a officers in [Petitioner’s] general responsibility wearing, maintaining, have the of and being They аllegedly carry peace- able to use a firearm. out a keeping responsibility just presence by their with uniform Schuette, weapon. and Yet neither Officer Arata or nor Com- plainant, any particular responsibilities, had or exercised as persons, East concerning Precinct desk If firearms. had responsibilities, they certainly kept had such would their have available, them, keeping firеarms even worn rather than them in part precinct.” their lockers another of the analysis
The Commissioner’s is correct. Job classifi- cations justify disparate wages cannot for equal between sexes performance requirements work. Actual job control over job classifications or titles. Shultz Wheaton Company, v. Glass 421
348
(1970);
v.
(3rd
Brennan
Cir), cert den
F2d 259 (4th 282 Cir 503 F2d Hospital Corporation, Prince William too, (1975). See, following cases den US 972 1974), cert 420 rejected dispa- as defense to classification was job which Equal Title VII and the federal brought rate claims under wage (D Supp F 504 ND Pay Cty., v. Ward Act: Howard male com- 1976) (female deputy, office claimant classified Milwaukee, v. deputy”); “field United States parator of 1977) (females as (ED “police classified Supp Wis F City Fargo, as Peltier “jailers”); matrons” and males 1976) (women (8th as markers” аnd Cir classified “car F2d 374 differences general as Whatever “patrolmen”). men II job requirements PRC existed between com- whole, only such differences were theoretical officers as person of the East Precinct desk pared the particular with performed. In Peltier and Arata and Schuette car markers. replaced male officers were female patrol markers, but no that men could not be car There was evidence Fargo atempted all women. The car markers were that the were justify pay disparity by arguing women sex. less of their classification and because this, rejected stating: court actually performed extra “We conclude duties subsequently performed car the male markers which were not by replacements very the female were insubstantial. extra performed consumed a minimal amount of time and duties essentially per- assigned to the incidental position. training formed duties of the The additional *7 flexibility, alleged when con- male officersand sidered additional performed by in the duties both the light actual females, by justify higher pay does received males and the males. The not the salary in
fifty percent discrepancy between by by thе car markers and that received the that received female car markers violates male * * *” Pay Equal the F2d Act. at 378. also extra
The Commissioner found the duties actually performed by in not Arata police general officers were Actual duties and actual control. Schuette. be upon perform other That the desk officers could called skill, in the effort significant duties did creatе variation required job by the held perform responsibility male The evidence shows that claimant and the desk officers. and, replace was hired to a male desk officer performed performed regardless as title, the same he of her assisting public duties at the desk officer. These were: answering phone checking calls; and vehi- counter; out radios answering filing car cles; radio сall cards and district requests. The Commissioner found:
*“* * differences in the activities which There were some performed. Complainant, Arata and Officer Schuette Officer activity part, For the most these differences consisted of an consumed, very which was minor nature time an and/or activity performed infrequently, sim- division of two and/or These so ilar tasks. different activities were minor part jobs insignificant сonstituted an of the desk and/or performed interchangeably by Complainant, Officer Arata or person responsible Officer Schuette when for them was absent.” City points
The few extra duties to were: (a) The Desk Officers Could Be Called To Render
Assistance On The Street. The Commissioner found that Arata was called out during period issue; twice at Schuette was called out once.
(b) Accepted Evidentiary Property. The Desk Officer infrequent
The Commissioner found this also was an (Schuette duty crime) stated he once received a knife used in a any evidentiary prop- but that in event claimant also received erty. property person Furthermore, most the desk received non-evidentiary. was
(c) Responsible The Desk Building Officer Was For
Security Superior When No Other Officer Present. rarely. The Commissioner found that that occurred supеrior physically present, kept no officer When he contact with the office radio. The record shows that Arata charge only years. was left in once or twice in five (d) Arresting An The Desk Officer Could Assist Officer Suspect Custody.
With The Commissioner found that there was no evidence frequency testified that he never of this task. Arata physically arresting Furthermore, assisted an officer. arresting Commissioner also found that claimant assisted prisoners. officers with female
(e) Typed Claimant More. spent very
The Commissioner found that claimant a typing, except period small amount of time for a short before a hired. The precinct secretary 1973 when was record shows five sheets and spent day typing assignment that she minutes per typing spent 20 minutes month a court schedule. Arata typing gasoline reports. similar amount of time City dropped argumеnt its that the desk officer responsible for use and maintenance of a firearm. Claim- she, given ant was also a firearm. Neither Arata or Schuette any responsibilities exercised in their about fire- jobs arms, in in kept guns all their lockers part precinct. another defense, rejected City’s
The Commissioner also City’s because she inferred that the classification provided place lower-paying jobs. a means to women into support in the record to the basic There is substantial evidence inference, support facts that this and there is a basis in reason appropriate to connect the inference to those facts. The stan inferences is stated in Rose regarding dard of review burg Roseburg City Firefighters, (1981): entirely dispositive rule
“The substantial evidence is not embody Any reviewing findings inferences. inference parts: primary plus The evidence has two directly fact a deduction. only primary
establishes the truth of the fact or facts may which an inference derived therefrom. Rational from be may exist than inference to be from bases for more one drawn agency) (i.e., fact, primary and the factfinder has the same task which one to draw. The court does not sub- the stitute its to dеcide drawn, judgment as to which should be inference soundness, conformity judicial it must review but preference. an inference is thus in two Judicial review of (1) stages: supported are sub- whether the basic fact or facts evidence, stantial whether there is a basis reason it is derived. connecting the inference to the facts from which and, sense, in a It is a twofold review for substantial evidence * * *” (Emphasis supplied.) 292 Or at for ‘substantial reason.’ 271. rarely susceptible discrimination is
Employment drawn frequently depends on inferences direct The record shows the finder of fact from other evidence. jure from 1971 to 1973 the maintained a de sex-segregated system. impossible classification it was for a Until woman to become a officer. The record contains the fol- *9 lowing findings of fact: persons appointment apply
“Male were allowed to for Resрondent’s PRC-II classification at all times material persons apply appointment herein. Female were allowedto Respondent’s police officerclassification as of 1973. October, 1974,492 officers, Respondent’s police “In 97%, July, 1975, Respondent’s or were male. In 480 of officers, police 97%, 1976, July, or In were male. 450 of officers, Respondent’s 95%, or weremale. July, 1974, Respondent’s PRC-II’s, 4%, “In one of or July, Respondent’s Inmale. none of PRC-II’s weremale. July, Respondent’s none of PRC-II’s weremale.” There is substantial evidence in the record to support those findings. There is a reasonable basis for the Commissioner’s inference that the classification was a means to funnel women lower-paying into jobs. Commissioner described it as “two sex-segregated classifications.” We should not sub- stitute judgment our fоr that of the Commissioner.
Petitioner also argues that its decision to replace officers with civilian employes economy was an measure made without intent against to discriminate Corning women. In Brennan, Glass 2223, 41 L Works v. 417 US S Ct Ed 2d 1 (1974), Supreme wage Court stated that differentials equal between the sexes for work “* * * Corning pay a market in which could reflectfs]
women less company than men for the same work. That the advantage may took of such a situation be understandable as a economics, matter of illegal but its differential nevertheless became Congress principle equal once enacted into law the pay equal work.” 417 atUS 205.
An effort to reduce by replacing higher paid costs male police officers with sexually lower female PRC II clerks is not a neutral rationale for the disрarity.
The Commissioner did rejecting peti- not err in tioner’s affirmative defenses. Because the failed come legitimate forward with a non-discriminatory justification for the pay disparity, claimant’s case was unrebutted. finding employment Commissioner’s discrimination in the evidence supported by substantial
because of sex have of back should record, the Commissioner’s award and affirmed. been J, Warden, J., concurring in this
Joseph, join C. dissenting opinion.