COUNTY OF WASHINGTON, OREGON, ET AL. v. GUNTHER ET AL.
No. 80-429
Supreme Court of the United States
Argued March 23, 1981-Decided June 8, 1981
452 U.S. 161
Lawrence R. Derr argued the cause and filed a brief for petitioners.
Carol A. Hewitt argued the cause and filed a brief for respondents.
Barry Sullivan argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Turner, Deputy Solicitor General Wallace, Walter W. Barnett, Neil H. Cogan, and Leroy D. Clark.*
JUSTICE BRENNAN delivered the opinion of the Court.
The question presented is whether
I
This case arises over the payment by petitioner County of Washington, Ore., of substantially lower wages to female
Respondents filed suit against petitioners in Federal District Court under Title VII,
After trial, the District Court found that the male guards supervised more than 10 times as many prisoners per guard as did the female guards, and that the females devoted much of their time to less valuable clerical duties. It therefore held that respondents’ jobs were not substantially equal to those of the male guards, and that respondents were thus not entitled to equal pay. 20 FEP Cases, at 791. The Court of Appeals affirmed on that issue, and respondents do not seek review of the ruling.
The District Court also dismissed respondents’ claim that the discrepancy in pay between the male and female guards was attributable in part to intentional sex discrimination. It held as a matter of law that a sex-based wage discrimination claim cannot be brought under Title VII unless it would satisfy the equal work standard of the Equal Pay Act of 1963,
The Court of Appeals reversed, holding that persons alleging sex discrimination “are not precluded from suing under Title VII to protest ... discriminatory compensation practices” merely because their jobs were not equal to higher paying jobs held by members of the opposite sex. 602 F. 2d 882, 891 (CA9 1979), supplemental opinion on denial of rehearing, 623 F. 2d 1303, 1313, 1317 (1980). The court remanded to the District Court with instructions to take evidence on respondents’ claim that part of the difference between their rate of pay and that of the male guards is attributable to sex
We emphasize at the outset the narrowness of the question before us in this case. Respondents’ claim is not bаsed on the controversial concept of “comparable worth,”6 under which plaintiffs might claim increased compensation on the basis of a comparison of the intrinsic worth or difficulty of their job with that of other jobs in the same organization or community.7 Rather, respondents seek to prove, by direct evidence, that their wages were depressed because of intentional sex discrimination, consisting of setting the wage scale for female guards, but not for male guards, at a level lower than that warranted by its own survey of outside markets and the worth of the jobs warranted. The narrow question in this case is whether such a claim is precluded by the last sentence of
Title VII makes it an unlawful employment practice for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‘s ... sex ...”
“It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of section 206 (d) of title 29.”
42 U. S. C. § 2000e-2 (h) .
To discover what practices are exempted from Title VII‘s prohibitions by the Bennett Amendment, we must turn to
“No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less thаn the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 77 Stat. 56,
29 U. S. C. § 206 (d) (1) .
On its face, the Equal Pay Act contains three restrictions pertinent to this case. First, its coverage is limited to those
Petitioners argue that the purpose of the Bennett Amendment was to restrict Title VII sex-based wage discrimination claims to those that could also be brought under the Equal Pay Act, and thus that claims not arising from “equal work” are precluded. Respondents, in contrast, argue that the Bennett Amendment was designed merely to incorporate the four affirmative defenses of the Equal Pay Act into Title VII for sex-based wage discrimination claims. Respondents thus contend that claims for sex-bаsed wage discrimination can be brought under Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not based on seniority, merit, quantity or quality of production, or “any other factor other than sex.” The Court of Appeals found respondents’ interpretation the “more persuasive.” 623 F. 2d, at 1311. While recognizing that the language and legislative history of the provision are not unambiguous, we conclude that the Court of Appeals was correct.
A
The language of the Bennett Amendment suggests an intention to incorporate only the affirmative defenses of the Equal Pay Act into Title VII. The Amendment bars sex-based wage discrimination claims under Title VII where the
The Equal Pay Act is divided into two parts: a definition of the violation, followed by four affirmative defenses. The first part can hardly be said to “authorize” anything at all: it is purely prohibitory. The second part, however, in essence “authorizes” employers to differentiate in pay on the basis of seniority, merit, quantity or quality of production, or any other factor other than sex, еven though such differentiation might otherwise violate the Act. It is to these provisions, therefore, that the Bennett Amendment must refer.
Petitioners argue that this construction of the Bennett Amendment would render it superfluous. See United States v. Menasche, 348 U. S. 528, 538-539 (1955). Petitioners claim that the first three affirmative defenses are simply redundant of the provisions elsewhere in
We cannot agree. The Bennett Amendment was offered as a “technical amendment” designed to resolve any potential conflicts between Title VII and the Equal Pay Act. See infra, at 173. Thus, with respect to the first three defenses, the Bennett Amendment has the effect of guaranteeing that courts and administrative agencies adopt a consistent interpretation of like provisions in both statutes. Otherwise, they might develop inconsistent bodies of case law interpreting two sets of nearly identical language.
More importantly, incorporation of the fourth affirmative defense could have significant consequences for Title VII litigation. Title VII‘s prohibition of discriminatory employment practices was intended to be broadly inclusive, proscribing “not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Griggs v. Duke Power Co., 401 U. S. 424, 431 (1971). The structure of Title VII litigation, including presumptions, burdens of proof, and defenses, has been designed to reflect this approach. The fourth affirmative defense of the Equal Pay Act, however, was designed differently, to confine the appliсation of the Act to wage differentials attributable to sex discrimination. H. R. Rep. No. 309, 88th Cong., 1st Sess., 3 (1963). Equal Pay Act litigation, therefore, has been structured to permit employers to defend against charges of discrimination where their pay differentials are based on a bona fide use of “other factors other than sex.”11 Under the Equal
We therefore conclude that only differentials attributable to the four affirmative defenses of the Equal Pay Act are “authorized” by that Act within the meaning of
B
The legislative background of the Bennett Amendment is fully consistent with this interpretation.
Title VII was the second bill relating to employment discrimination to be enacted by the 88th Congress. Earlier, the same Congress passed the Equal Pay Act “to remedy what was perceived to be a serious and endemic problem of [sex-based] employment discrimination in private industry,” Corning Glass Works v. Brennan, 417 U. S. 188, 195 (1974). Any possible inconsistency between the Equal Pay
“Mr. BENNETT. Mr. President, after many years of yearning by members of the fair sex in this country, and after very careful study by the appropriate committees of Congress, last year Congress passed the so-called Equal Pay Act, which became effective only yesterday. “By this time, programs have been established for the effective administration of this act. Now, when the civil rights bill is under consideration, in which the word ‘sex’ has bеen inserted in many places, I do not believe sufficient attention may have been paid to possible conflicts between the wholesale insertion of the word ‘sex’ in the bill and in the Equal Pay Act. “The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified. “I understand that the leadership in charge of the bill have agreed to the amendment as a proper technical correction of the bill. If they will confirm that understand [sic], I shall ask that the amendment be voted on without asking for the yeas and nays.
“Mr. HUMPHREY. The amendment of the Senator from Utah is helpful. I believe it is needed. I thank him for his thoughtfulness. The amendment is fully acceptable. “Mr. DIRKSEN. Mr. President, I yield myself 1 minute. “We were aware of the conflict that might develop, because the Equal Pay Act was an amendment to the Fair Labor Standards Act. The Fair Labor Standards Act carries out certain exceptions. “All that the pending amendment does is recognize those exceptions, that are carried in the basic act. “Therefore, this amendment is necessary, in the interest of clarification.” Id., at 13647.
As this discussion shows, Senator Bennett proposed the Amendment because of a general concern that insufficient attention had been paid to the relation between the Equal Pay Act and Title VII, rather than because of a specific potential conflict between the statutes.13 His explanation that the Amendment assured that the provisions of the Equal Pay Act “shall not be nullified” in the event of conflict with Title VII may be read as referring to the affirmative defenses of the Act. Indeed, his emphasis on the “technical” nature of the Amendment and his concern for not disrupting the “ef-
Senator Dirksen‘s comment that all that the Bennett Amendment does is to “recognize” the exceptions carried in the Fair Labor Standards Act, suggests that the Bennett Amendment was necessary because of the exceptions to coverage in the Fair Labor Standards Act, which made the Equal Pay Act applicable to a narrower class of employers than was Title VII. See supra, at 167-168. The Bennett Amendment clarified that the standards of the Equal Pay Act would govern even those wage discrimination cases where only Title VII would otherwise apply. So understood, Senator Dirksen‘s remarks are not inconsistent with our interpretation.15
Thus, although the few references by Members of Congress to the Bennett Amendment do not explicitly confirm that its purpose was to incorporate into Title VII the four affirmative defenses of the Equal Pay Act in sex-based wage discrimination cases, they are broadly consistent with such a reading, and do not support an alternative reading.
The interpretations of the Bennett Amendment by the agency entrusted with administration of Title VII-the Equal Employment Opportunity Commission-do not provide much guidance in this case. Cf. Griggs v. Duke Power Co., 401 U. S., at 433-434. The Commission‘s 1965 Guidelines on Discrimination Because of Sex stated that “the standards of ‘equal pay for equal work’ set forth in the Equal Pay Act for determining what is unlawful discrimination in compensation are applicable to Title VII.”
The restrictive interpretation suggested by the 1965 Guideline was followed in several opinion letters in the following years.17 During the same period, however, EEOC decisions frequently adopted the opposite position. For example, a reasonable-сause determination issued by the Commission in 1968 stated that “the existence of separate and different wage rate schedules for male employees on the one hand, and female employees on the other doing reasonably comparable work, establishes discriminatory wage rates based solely on the sex of the workers.” Harrington v. Picadilly Cafeteria, Case No. AU 7-3-173 (Apr. 25, 1968).18
D
Our interpretation of the Bennett Amendment draws additional support from the remedial purposes of Title VII and the Equal Pay Act. Section 703 (a) of Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment” because of such individual‘s sex.
Under petitioners’ reading of the Bennett Amendment, only those sex-based wage discriminatiоn claims that satisfy the “equal work” standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief-no matter how egregious the discrimination might be-unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if
Moreover, petitioners’ interpretation would have other far-reaching consequences. Since it rests on the proposition that any wage differentials not prohibited by the Equal Pay Act are “authorized” by it, petitioners’ interpretation would lead to the conclusion that discriminatory compensation by employers not covered by the Fair Labor Standards Act is “authorized“-since not prohibited-by the Equal Pay Act. Thus it would deny Title VII protection against sex-based wage discrimination by those employers not subject to the Fair Labor Standards Act but covered by Title VII. See supra, at 167-168. There is no persuasive evidence that Con-
Petitioners’ reading is thus flatly inconsistent with our past interpretations of Title VII as “prohibit[ing] all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin.” Franks v. Bowman Transportation Co., 424 U. S. 747, 763 (1976). As we said in Los Angeles Dept. of Water & Power v. Manhart, supra, at 707, n. 13: “In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” (Emphasis added.) We must therefore reject petitioners’ interpretation of the Bennett Amendment.
III
Petitioners argue strenuously that the approach of the Court of Appeals places “the pay structure of virtually every employer and the entire economy ... at risk and subject to scrutiny by the federal courts.” Brief for Petitioners 99-100. They raise the specter that “Title VII plaintiffs could draw any type of comparison imaginable concerning job duties and pay between any job predominantly performed by women and any job predominantly performed by men.” Id., at 101. But whatever the merit of petitioners’ arguments in other contexts, they are inapplicable here, for claims based on the type of job comparisons petitioners describe are manifestly different from respondents’ claim. Respondents contend that the County of Washington evaluated the worth of their jobs; that the county determined that they should be paid approximately 95% as much as the male correctional officers; that it paid them only about 70% as much, while paying the male
officers the full evaluated worth of their jobs; and that the failure of the county to pay respondents the full evaluated worth of their jobs can be proved to be attributable to intentional sex discrimination. Thus, respondents’ suit does not require a court to make its own subjective assessment of the value of the male and female guard jobs, or to attempt by statistical technique or other method to quantify the effect of sex discrimination on the wage rates.20
We do not decide in this case the precise contours of lawsuits challenging sex discrimination in compensation under Title VII. It is sufficient to note that respondents’ claims of discriminatory undercompensation are not barred by § 703 (h) of Title VII merely because respondents do not perform work equal to that of male jail guards. The judgment of the Court of Appeals is therefore
Affirmed.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE, JUSTICE STEWART, and JUSTICE POWELL join, dissenting.
The Court today holds a plaintiff may state a claim of sex-based wage discrimination under Title VII without even establishing that she has performed “equal or substantially equal work” to that of males as defined in the Equal Pay Act. Because I believe that the legislative history of both the Equal Pay Act of 1963 and Title VII clearly establish that there can be no Title VII claim of sex-based wage discrimination without proof of “equal work,” I dissent.
I
Because the Court never comes to grips with petitioners’ argument, it is necessary to restate it here. Petitioners argue
In rejecting that argument, the Court ignores traditional canons of statutory construction and relevant legislative history. Although I had thought it well settled that the legislative history of a statute is a useful guide to the intent of Congress, the Court today claims that the legislative history “has no bearing on the meaning of the [Act],” ante, at 173, n. 12, “does not provide a solution to the present problem,” ante, at 176, and is simply of “no weight.” Ante, at 176, n. 16. Instead, the Court rests its decision on its unshakable belief that any other result would be unsound public policy. It insists that there simply must be a remedy for wage discrimination beyond that provided in the Equal Pay Act. The Court does not explain why that must be so, nor does it explain what that remedy might be. And, of course, the Court cannot explain why it and not Congress is charged with determining what is and what is not sound public policy.
The closest the Court can come in giving a reason for its decision is its belief that interpretations of Title VII which “deprive victims of discrimination of a remedy, without clear congressional mandate” must be avoided. Ante, at 178. But that analysis turns traditional canons of statutory construc
Because the decision does not rest on any reasoned statement of logic or principle, it provides little guidance to employers or lower courts as to what types of compensation practices might now violate Title VII. The Court correctly emphasizes that its decision is narrow, and indeed one searches the Court‘s opinion in vain for a hint as to what pleadings or proof other than that adduced in this particular case, see ante, at 180-181, would be sufficiеnt to state a claim of sex-based wage discrimination under Title VII. To paraphrase Justice Jackson, the Court today does not and apparently cannot enunciate any legal criteria by which suits under Title VII will be adjudicated and it lays “down no rule other than our passing impression to guide ourselves or our successors.” Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28, 45 (1948). All we know is that Title VII provides a remedy when, as here, plaintiffs seek to show by direct evidence that their employer intentionally depressed their wages. And, for reasons that go largely unexplained, we also know that a Title VII remedy may not be available to plaintiffs who allege theories different than that alleged here, such as the so-called “comparable worth” theory. One has the sense that the decision today will be treated like a restricted railroad ticket, “good for this day and train only.” Smith v. Allwright, 321 U.S. 649, 669 (1944) (Roberts, J., dissenting).
In the end, however, the flaw with today‘s decision is not so much that it is so narrowly written as to be virtually
II
The Equal Pay Act
The starting point for any discussion of sex-based wage discrimination claims must be the
The legislative history of the Equal Pay Act begins in 1962 when Representatives Green and Zelenko introduced two identical bills, H. R. 8898 and H. R. 10226 respectively, representing the Kennedy administration‘s proposal for equal pay legislation. Both bills stated in pertinent part:
“SEC. 4. No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to
any employee at a rate less than the rate at which he pays wages to any employee of the opposite sex for work of comparable character on jobs the performance of which requires comparable skills, except where such payment is made pursuant to a seniority or merit increase system which does not discriminate on the basis of sex.” H. R. 8898, 87th Cong., 1st Sess. (1961); H. R. 10226, 87th Cong., 2d Sess. (1962) (emphasis supplied).1
During the extensive hearings on the proposal, the administration strenuously urged that Congress adopt the “comparable” language, noting that the comparability of different jobs could be determined through job evaluation procedures. Hearings on H. R. 8898, H. R. 10226 before the Select Subcommittee on Labor of the House Committee on Education and Labor, 87th Cong., 2d Sess., 16, 27 (1962) (testimony of Secretary of Labor Arthur Goldberg and Assistant Secretary of Labor Esther Peterson). A bill containing the comparable-work formula, then denominated H. R. 11677, was reported out of the House Committee on Education and Labor and reached the full House. Once there, Representative St. George objected to the “comparable work” language of the bill and offered an amendment which limited equal pay claims to those “for equal work on jobs, the performance of which requires equal skills.” 108 Cong. Rec. 14767 (1962). As she explained, her purpose was to limit wage discrimination claims
“What we want to do in this bill is to make it exactly what it says. It is called equal pay for equal work in some of the committee hearings. There is a great difference between the word ‘comparable’ and the word ‘equal.’
“. . . The word ‘comparable’ opens up great vistas. It gives tremendous latitude to whoever is to be arbitrator in these disputes.” Ibid. (Emphasis supplied.)
Representative Landrum echoed those remarks. He stressed that the St. George amendment would prevent “the trooping around all over the country of employees of the Labor Department harassing business with their various interpretations of the term ‘comparable’ when ‘equal’ is capable of the same definition throughout the United States.” Id., at 14768. The administration, represented by Representatives Zelenko and Green, vigorously urged the House to reject the St. George amendment. They observed that the “equal work” standard was narrower than the existing “equal pay for comparable work” language and cited correspondence from Secretary of Labor Goldberg that “comparable is a key word in our proposal.” Id., at 14768-14769. The House, however, rejected that advice and adopted the St. George amendment. When the Senate considered the bill, it too rejected the “comparable work” theory in favor of the “equal work” standard.
Because the Conference Committee failed to report a bill out of Committee, enactment of equal pay legislation was delayed until 1963. Equal pay legislation, containing the St. George amendment, was reintroduced at the beginning of the session. The congressional debate on that legislation leaves no doubt that Congress clearly rejected the entire notion of “comparable worth.” For example, Representative
“I think it is important that we have clear legislative history at this point. Last year when the House changed the word ‘comparable’ to ‘equal’ the clear intention was to narrow the whole concept. We went from ‘comparable’ to ‘equal’ meaning that the jobs involved should be virtually identical, that is, that they would be very much alike or closely related to each other.
“We do not expect the Labor Department to go into an establishment and attempt to rate jobs that are not equal. We do not want to hear the Departmеnt say, ‘Well, they amount to the same thing,’ and evaluate them so that they come up to the same skill or point. We expect this to apply only to jobs that are substantially identical or equal.” 109 Cong. Rec. 9197 (1963) (emphasis supplied).
Representative Frelinghuysen agreed with those remarks.
“[W]e can expect that the administration of the equal pay concept, while fair and effective, will not be excessive nor excessively wide ranging. What we seek to insure, where men and women are doing the same job under the same working conditions[,] that they will receive the same pay. It is not intended that either the Labor Department or individual employees will be equipped with hunting licenses.
“. . . [The EPA] is not intended to compare unrelated jobs, or jobs that have been historically and normally considered by the industry to be different.” Id., at 9196 (emphasis supplied).3
Title VII
Congress enacted the
When those principles are applied to this case, there can be no doubt that the Equal Pay Act and Title VII should be construed in pari materia. The Equal Pay Act is the more specific piece of legislation, dealing solely with sex-based wage discrimination, and was the product of exhaustive congressional study. Title VII, by contrast, is a general antidiscrimination provision, passed with virtually no consideration of the specific problem of sex-based wage discrimination. See General Electric Co. v. Gilbert, 429 U.S. 125, 143 (1976) (the legislative history of the sex discrimination amendment
In order to the reach the result it so desperately desires, the Court neatly solves the problem of this contrary legislative history by simply giving it “no weight.” Ante, at 172, n. 12, 176, and n. 16. But it cannot be doubted that Chief Justice Marshall stated the correct rule that “[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived . . . .” United States v. Fisher, 2 Cranch 358, 386 (1805). In this case, when all of the pieces of legislative history are considered in toto, the Court‘s version of the legislative history of Title VII is barely plausible, say nothing of convincing.
Title VII was first considered by the House, where the prohibition against sex discrimination was added on the House floor. When the bill reached the Senate it bypassed the
“Objection. The sex antidiscrimination provisions of the bill duplicate the coverage of the Equal Pay Act of 1963. But more than this, they extend far beyond the scope and coverage of the Equal Pay Act. They do not include the limitations in that act with respect to equal work on jobs requiring equal skills in the same establishments, and thus, cut across different jobs.
“Answer. The Equal Pay Act is a part of the wage hour law, with different coverage and with numerous exemptions unlike title VII. Furthermore, under title VII, jobs can no longer be classified as to sex, except where there is a rational basis for discrimination on the ground of bona fide occupational qualification. The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under title VII.” 110 Cong. Rec. 7217 (1964) (emphasis added).
In this passage, Senator Clark asserted that the sex discriminаtion provisions of Title VII were necessary, notwithstanding the Equal Pay Act, because (a) the Equal Pay Act had numerous exemptions for various types of businesses, and (b) Title VII covered discrimination in access (e. g., assignment and promotion) to jobs, not just compensation. In addition, Senator Clark made clear that in the compensation area the equal work standard would continue to be the ap
Notwithstanding Senator Clark‘s explanation, Senator Bennett remained concerned that, absent an explicit cross-reference to the Equal Pay Act, the “wholesale insertion” of the word “sex” in Title VII could nullify the carefully conceived Equal Pay Act standard. 110 Cong. Rec. 13647 (1964). Accordingly, he offered, and the Senate accepted, the following amendment to Title VII:
“It shall not be an unlawful employment practice under this subchapter for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of [§ 6 (d) of the Equal Pay Act].”
Although the language of the Bennett Amendment is ambiguous, the most plausible interpretation of the Amendment is that it incorporatеs the substantive standard of the Equal Pay Act—the equal pay for equal work standard—into Title VII. A number of considerations support that view. In the first place, that interpretation is wholly consistent with, and in fact confirms, Senator Clark‘s earlier explanation of Title VII. Second, in the limited time available to Senator Bennett when he offered his amendment—the time for debate having been limited by cloture—he explained the Amendment‘s purpose.5
“Mr. President, after many years of yearning by mem-
bers of the fair sex in this country, and after very careful study by the appropriate committees of Congress, last year Congress passed the so-called Equal Pay Act, which became effective only yesterday.
“By this time, programs have been established for the effective administration of this act. Now when the civil rights bill is under consideration, in which the word ‘sex’ has been inserted in many places, I do not believe sufficient attention may have been paid to possible conflicts between the wholesale insertion of the word ‘sex’ in the bill and in the Equal Pay Act.
”The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified.” 110 Cong. Rec. 13647 (1964) (emphasis supplied).
It is obvious that the principal way in which the Equal Pay Act could be “nullified” would be to allow plaintiffs unable to meet the “equal pay for equal work” standard to proceed under Title VII asserting some other theory of wage discrimination, such as “comparable worth.” If plaintiffs can proceed under Title VII without showing that they satisfy the “equal work” criterion of the Equal Pay Act, one would expect all plaintiffs to file suit under the “broader” Title VII standard. Such a result would, for all practical purposes, constitute an implied repeal of the equal work standard of the Equal Pay Act and render that Act a nullity. This was precisely the result Congress sought to avert when it adopted the Bennett Amendment, and the result the Court today embraces.
“The Amendment therefore means that it is not an unlawful employment practice: . . . (b) to have different standards of compensation for nonexempt employees, where such differentiation is not prohibited by the equal pay amendment to the Fair Labor Standards Act.
“Simply stated, the [Bennett] amendment means that discrimination in compensation on account of sex does not violate title VII unless it also violates the Equal Pay Act.” 111 Cong. Rec. 13359 (1965) (emphasis supplied).
Senator Dirksen agreed that this interpretation was “precisely” the one that he, Senator Humphrey, and their staffs had in mind when the Senate adopted the Bennett Amendment. Id., at 13360. He added: “I trust that that will suffice to clear up in the minds of anyone, whether in the Department of Justice or elsewhere, what the Senate intended when that amendment was accepted.” Ibid.6
The Court suggests Senator Bennett‘s 1965 comments should be discounted because Senator Clark criticized them. Ante, at 176, n. 16. Senator Clark did indeed criticize Senator Bennett, but only because Senator Clark read Senator Bennett‘s explanation as suggesting that Title VII protection would not be available to those employees not within the Equal Pay Act‘s coverage. Senator Clark‘s view was that employees not covered by the Equal Pay Act could still bring Title VII claims. He did not dispute, however, the proposition that the “equal work” standard of the Equal Pay Act was incorporated into Title VII claims. Quite the con
“Our best understanding of the implications of the [Bennett Amendment] at the time it was adopted was that its intent and effect was to make sure that equal pay would be applied and interpreted under the Civil Rights Act in the same way as under the earlier statute, the Equal Pay Act. That is, the Equal Pay Act standards requiring equal work . . . would also be applied under the Civil Rights Act.” 111 Cong. Rec. 18263 (1965) (emphasis supplied).
Senator Clark then commended to the EEOC the reasoning set forth in the letter. Ibid.
We can glean further insight into the proper interpretation of the Bennett Amendment from the comments of Representative Celler, the Chairman of the House Judiciary Committee and sponsor of Title VII. After the Senate added the Bennett Amendment to Title VII and sent the bill to the House, Representative Celler set out in the record the understanding of the House that sex-based compensation claims would not satisfy Title VII unless they met the equal work standards of the Equal Pay Act. He explained that the Bennett Amendment “[p]rovides that compliance with the [EPA] satisfies the requirement of the title barring discrimination because of sex—[§ 703 (h)].” 110 Cong. Rec. 15896 (1964). The majority discounts this statement because it is somewhat “imprecise.” Ante, at 176. I find it difficult to believe that a comment to the full House made by the sponsor of Title VII, who obviously understood its provisions, including its amendments, is of no aid whatsoever to the inquiry before us.7
Finally, the contemporaneous interpretations of the Bennett Amendment by the EEOC, which are entitled to great
“Title VII requires that its provisions be harmonized with the Equal Pay Act (section 6 (d) of the Fair Labor Standards Act of 1938, 29 U.S. C. § 206 (d)) in order to avoid conflicting interpretations or requirements with respect to situations to which both statutes are applicable. Accordingly, the Commission interprets section 703 (h) to mean that the standards of ‘equal pay for equal work’ set forth in the Equal Pay Act for determining what is unlawful discrimination in compensation are applicable to Title VII. However, it is the judgment of the Commission that the employee coverage of the prohibition against discrimination in compensation because of sex is coextensive with that of the other prohibitions in section 703, and is not limited by § 703 (h) to those employees covered by the Fair Labor Standards Act.”
29 CFR § 1604.7 (1966). (Emphasis supplied.)
Three weeks after the EEOC issued its Guidelines, the General Counsel explained the Guidelines in an official opinion letter.8 He explained:
“The Commission, as indicated in § 1604.7 of the
Guidelines issued November 24, 1965, 30 F. R. 14928, has decided that section 703 (h), Title VII of the Civil Rights Act of 1964 incorporates the definition of discrimination in compensation found in the Equal Pay Act, including the four enumerated exceptions . . . .” General Counsel‘s opinion of December 29, 1965, App. to Brief for Petitioners 7a. (Emphasis supplied.)
Thus EEOC‘s contemporaneous interpretation of the Bennett Amendment leaves no room for doubt: The Bennett Amendment incorporates the equal work standard of discrimination into Title VII.9
The Court blithely ignores all of this legislative history and chooses to interpret the Bennett Amendment as incorporating only the Equal Pay Act‘s four affirmative defenses, and not the equal work requirement.10 That argument does not survive scrutiny. In the first place, the language of the Amendment draws no distinction between the Equal Pay Act‘s standard for liability—equal pay for equal work—and the Act‘s defenses. Nor does any Senator or Congressman
Moreover, even on its own terms the Court‘s argument is unpersuasive. The Equal Pay Act contains four statutory defenses: differеnt compensation is permissible if the differential is made by way of (1) a seniority system, (2) a merit system, (3) a system which measures earnings by quantity or quality of production, or (4) is based on any other factor other than sex.
In sum, Title VII and the Equal Pay Act, read together, provide a balanced approach to resolving sex-based wage discrimination claims. Title VII guarantees that qualified female employees will have access to all jobs, and the Equal Pay Act assures that men and women performing the same work will be paid equally. Congress intended to remedy wage discrimination through the Equal Pay Act standards, whether suit is brought under that statute or under Title
III
Perhaps recognizing that there is virtually no support for its position in the legislative history, the Court rests its holding on its belief that any other holding would be unacceptable public policy. Ante, at 178-180. It argues that there must be a remedy for wage discrimination beyond that provided in the Equal Pay Act. Quite apart from the fact that that is an issue properly left to Congress and not the Court, the Court is wrong even as a policy matter. The Court‘s parade of horribles that would occur absent a distinct Title VII remedy simply does not support the result it reaches.
First, the Court contends that a separate Title VII remedy is necessary to remedy the situation where an employer admits to a female worker, hired for a unique position, that her compensation would have been higher had she been male. Ante, at 178-179. Stated differently, the Court insists that an employer could isolate a predominantly female job category and arbitrarily cut its wages because no men currently perform equal or substantially equal work. But a Title VII remedy is unnecessary in these cases because an Equal Pay Act remedy is available. Under the Equal Pay Act, it is not necessary that every Equal Pay Act violation be established through proof that members of the opposite sex are currently performing equal work for greater pay. Howevеr unlikely such an admission might be in the bullpen of litigation, an employer‘s statement that “if my female employees performing a particular job were males, I would pay them more simply because they are males” would be admissible in a suit under that Act. Overt discrimination does not go unremedied by the Equal Pay Act. See Bourque v. Powell Elec-trical Manufacturing Co., 617 F.2d 61 (CA5 1980); Peltier v. City of Fargo, 533 F.2d 374 (CA8 1976); International Union of Electrical Workers v. Westinghouse Electric Corp., 631 F.2d 1094, 1108, n. 2 (CA3 1980) (Van Dusen, J., dissenting). In addition, insofar as hiring or placement discrimination caused the isolated job category, Title VII already provides numerous remedies (such as backpay, transfer, and constructive seniority) without resort to job comparisons. In short, if women are limited to low paying jobs against their will, they have adequate remedies under Title VII for denial of job opportunities even under what I believe is the correct construction of the Bennett Amendment.
The Court next contends that absent a Title VII remedy, women who work for employers exempted from coverage of the Equal Pay Act would be wholly without a remedy for wage discrimination. Ante, at 179-180. The Court misapprehends petitioners’ argument. As Senator Clark explained in his memorandum, see supra, at 191-192, Congress sought to incorporate into Title VII the substantive standard of the Equal Pay Act—the “equal work” standard—not the employee coverage provisions. See supra, at 194-195, n. 6. Thus, to say that the “equal pay for equal work” standard is incorporated into Title VII does not mean that employees are precluded from bringing compensation discrimination claims under Title VII. It means only that if employees choose to proceed under Title VII, they must show that they have been deprivеd of “equal pay for equal work.”
There is of course a situation in which petitioners’ position would deny women a remedy for claims of sex-based wage discrimination. A remedy would not be available where a lower paying job held primarily by women is “comparable,” but not substantially equal to, a higher paying job performed by men. That is, plaintiffs would be foreclosed from showing that they received unequal pay for work of “comparable worth” or that dissimilar jobs are of “equal worth.” The short, and best, answer to that contention is that Congress
IV
Even though today‘s opinion reaches what I believe to be the wrong result, its narrow holding is perhaps its saving feature. The opinion does not endorse the so-called “comparable worth” theory: though the Court does not indicate how a plaintiff might establish a prima facie case under Title VII, the Court does suggest that allegations of unequal pay for unequal, but comparable, work will not state a claim on which relief may be granted. The Court, for example, repeatedly emphasizes that this is not a case where plaintiffs ask the court to compare the value of dissimilar jobs or to quantify the effect of sex discrimination on wage rates. Ante, at 166, 180-181. Indeed, the Court relates, without criticism, respondents’ contention that Lemons v. City and County of Denver, 620 F.2d 228 (CA10), cert. denied, 449 U.S. 888 (1980), is distinguishable. Ante, at 166, n. 7. There the court found that Title VII did not provide a remedy to nurses who sought increased compensation based on a comparison of their jobs to dissimilar jobs of “comparable” value in the community. See also Christensen v. Iowa, 563 F.2d 353 (CA8 1977) (no prima facie case under Title VII when plaintiffs, women clerical employees of a university, sought to compare their wages to the employees in the physical plant).
Given that implied repeals of legislation are disfavored, TVA v. Hill, 437 U.S. 153, 189 (1978), we should not be surprised that the Court disassociates itself from the entire notion of “comparable worth.” In enacting the Equal Pay Act in 1963, Congress specifically prohibited the courts from comparing the wage rates of dissimilar jobs: there can only be a comparison of wage rates where jobs are “equal or substantially equal.” Because the legislative history of Title VII does not reveal an intent to overrule that determination, the courts should strive to harmonize the intent of Congress in enacting the Equal Pay Act with its intent in enacting Title VII. Where, as here, the policy of prior legislation is clearly expressed, the Court should not “transfuse the successor statute with a gloss of its own choosing.” De Sylva v. Ballentine, 351 U.S. 570, 579 (1956).
Because there are no logical underpinnings to the Court‘s opinion, all we may conclude is that even absent a showing of equal work, there is a cause of action under Title VII where there is direct evidence that an employer has intentionally depressed a woman‘s salary because she is a woman. The decision today does not approve a cause of action based on a comparison of the wage rates of dissimilar jobs.
For the foregoing reasons, however, I believe that even that narrow holding cannot be supported by the legislative history of the Equal Pay Act and Title VII. This is simply a case where the Court has superimposed upon Title VII a “gloss of its own choosing.”