Kohl’s Food Stores, a grocery chain in Wisconsin, operates under collective bargaining agreements that establish wage classifications. Jobs in the bakery and deli departments fall into one classification, jobs in the produce department another. Two facts give rise to this litigation: pay in the produce department is higher, and workers are not distributed uniformly by sex. Most bakery and deli workers are women, while most produce workers are men. Plaintiffs, a class of women who work in the deli and bakery departments, contend that the difference violates both the Equal Pay Act, 29 U.S.C. § 206(d), and Title VII of the Civil Rights Act of 1964. Kohl’s replies that plaintiffs are shortsighted: employees in the produce department are included within a pay category called “regular clerks,” most of whom are female. That most regular clerks in the produce department are men does not undercut the fact that most regular clerks store-wide are women, Kohl’s insists. The employer adds that women who want to be regular clerks in or out of the produce department do not face any discrimination in hiring or transfer. None of the class representatives applied for transfer to the produce department or another regular-clerk position; instead they want higher pay for their existing work. The ratio of wages between “department clerks” (the jobs plaintiffs occupy) and “regular clerks,” Kohl’s insists, is a subject for collective bargaining rather than for litigation.
After allowing the parties to conduct extensive discovery, the district court granted summary judgment for Kohl’s on the Title VII claim. The judge exhaustively analyzed the duties of bakery, deli, and produce workers and concluded that plaintiffs could not demonstrate that Kohl’s explanation for placing produce positions in the “regular clerk” classification was a pretext for sex discrimination. (The class includes supervisors and argues that bakery and deli managers do the same work as produce managers. Because the supervisors’ arguments track those of the clerks, we use “clerks” as a generic term to simplify exposition.) Kohl’s insisted that produce workers exercise greater discretion in displaying and culling produce and that produce jobs also are physically harder than bakery or deli jobs. The district judge concluded: “Plaintiffs have produced no persuasive evidence suggesting that defendants did not honestly believe this justification or that it is a cover for discrimination.” Honest belief is not enough under the Equal Pay Act, however, because that statute (unlike Title VII) does not require intent to discriminate. Section 206(d)(1) provides:
No employer ... shall discriminate ... between employees on the basis of sex by paying wages to employees ... at a rate less than the rate at which he pays wages to employees of the opposite sex ... 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[.]
The district judge concluded that two questions under this statute could be resolved only by trial: whether the positions in question are “jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions” and, if so, whether the pay differential nonetheless is “based on any other factor other than sex”. A trial culminated in a special verdict that answered the equal-work question in the negative; the jury then did not address the “factor other than sex” defense.
A substantial portion of plaintiffs’ appellate brief is devoted to contending that the district judge should not have granted summary judgment on the Title
*923
VII theory. Yet it is hard to see how this can matter, given the jury's verdict on the Equal Pay Act theory. If (as the jury determined) the bakery, deli, and produce jobs are not substantially equal, then plaintiffs can't show sex discrimination. Title VII does not require equal wages for comparable work, see American Nnrses' Association v. Illinois,
Plaintiffs make much of evidence that until the late 1960s Kohl’s not only discouraged women from applying for certain positions but also had sex-segregated wage classifications. This practice is long gone, and no vestige of the discrimination survives. Wage schedules were merged 31 years ago, and, unlike the situation in
Bazemore v. Friday,
Claims under the Equal Pay Act differ from comparable-worth arguments because proof that the two jobs are of the same (or comparable) value to the employer or society as a whole, or depend on similar effort or education, gets the plaintiff nowhere. To succeed under the Equal Pay Act the plaintiff must establish that the positions entail substantially equal tasks, performed under similar conditions. (The Act just says "equal," but it is common ground that "equal" does not mean "identical"; otherwise the employer could defeat an Equal Pay Act suit by adding an inconsequential and pointless chore to one of the jobs. Opinions commonly use the formula "substantially equal" to express the idea that trivial differences do not matter. See Fallon v. Illinois,
Plaintiffs contend that the exclusion of their expert witness is such an error. Howard Risher, a self-employed consultant with a Ph.D. in labor relations and economics, who teaches an undergraduate course on human resources as an adjunct professor at the University of Pennsylvania, prepared a report reaching conclusions favorable to plaintiffs. Stripped of self-congratulatory dross, this report is three pages long and consists of a list of clerks’ duties and an unreasoned
*924
assertion that all three departments' posi tions are "virtually identical in terms 0: their basic function and are substantialb equal in terms of skill, effort, responsibiit~ and working conditions." The only sup port for this conclusion, however, is th list, with entries such as "[p]reparing prod ucts for display" and "[m]aintaining equip. ment". Risher did not analyze what thE clerks do to achieve these objectives, anc the district court concluded that a list pluE a bald assertion would not assist the triei of fact. Fed.R.Evid. 702. Risher's deposi tion was as skeletal as his report; asked how employees at Kohl's carry out thei] duties, Risher replied only with variants or "I couldn't tell you" and "I have no idea" Apparently Risher thinks that job descrip tions trump actual tasks, a sorry misun derstanding of the Equal Pay Act. SeE Soto v. Adams Elevator Equipment Co.
Risher also prepared a supplemental report, based on his discussion with eight bakery or deli workers in a “focus group.” This report did little more than parrot these women’s belief that bakery and deli duties require as much skill as produce duties. Relaying the plaintiffs’ likely testimony is not an example of expertise.
Huey v. United Parcel Service, Inc.,
Plaintiffs challenge a second evi-dentiary decision, which the parties call the “outlier ruling.” Kohl’s operates stores throughout Wisconsin. Some are much larger than others, and size affects not only the number of employees in each department but also the tasks to be done. Plaintiffs sought to compare the busiest bakery and deli jobs with the lightest produce jobs; Kohl’s naturally would have preferred the converse. But the judge instructed both sides to compare the tasks of median jobs rather than the outliers at the largest and smallest stores. Plaintiffs contend that this ruling prevented them from showing that some bakery and deli jobs are substantially equal (in lifting, responsibility, and so on) to some produce jobs, indeed are more taxing than some produce jobs. As plaintiffs see things, the *925 Equal Pay Act requires a person-by-person comparison rather than a categorical one.
To the extent plaintiffs rely on the proposition that employers cannot make up arbitrary categories and insist that these be the basis of comparison, they get no quarrel from us (or from the district judge). See
Thompson v. Sawyer,
Two challenges to the jury instructions require only brief mention.
First, the instructions told the jury that it must determine whether the positions are “substantially the same” rather than “substantially equal.” Plaintiffs express concern that the jury would treat “same” as equivalent to “identical,” which these positions concededly were not. But using the word “equal” could lead to the same (an equal?) misunderstanding. Modifying either word with “substantially” overcomes the problem. The phrases “substantially the same” and “substantially equal” are substantially identical. The special interrogatory forms told the jury to determine whether the positions were “substantially the same,” and the district judge sensibly tracked that language in the instructions; otherwise the jury could have been confused by a difference between the instructions and the verdict forms.
Second, plaintiffs contend that the judge erred by telling the jury that documentary evidence such as position descriptions and training manuals-evidence that plaintiffs contend shows that bakery, deli, and produce positions have the same tasks-“could not be considered.” An instruction saying this would indeed be erroneous, for an employer’s manuals and descriptions are relevant to the question what the positions actually entail. But plaintiffs do not identify the supposedly erroneous instruction, and we could not find one that tells the jury not to “consider” paper evidence. What the judge actually told the jury is that a decision should not be “based upon job titles or job descriptions” but instead depends on “actual job duties and performance requirements.” That instruction was absolutely correct. Training manuals and the like were relevant only to the extent they accurately described the actual job duties.
Last but not least is plaintiffs’ contention that the district judge erred in informing the jury that the eeoc had found in Kohl’s favor on plaintiffs’ charge of discrimination under the Equal Pay Act. Before trial the district judge granted a motion in limine barring Kohl’s from informing the jury about the eeoc’s decision, but the judge changed her mind after plaintiffs’ counsel told the jury that Kohl’s agreed “under pressure of this lawsuit” to reduce the pay differential among the de *926 partments. Kohl’s replied that the “pressure” came from its unions in collective bargaining, not from the suit; to add oomph to this assertion Kohl’s wanted to inform the jury that the eeoc took a dim view of plaintiffs’ chances. If even the eeoc did not support plaintiffs, Kohl’s sought to argue, then the “pressure of this lawsuit” could not have made a difference. This led the district judge to inform the jury about the eeoc’s conclusion, in this language:
At the time of the 1998 collective bargaining negotiations Kohl’s had a determination from the Equal Employment Opportunity Commission that it had not discriminated against bakery and deli managers and clerks on the basis of their pay. At plaintiffs’ request that the determination by the Equal Employment Opportunity Commission be reconsidered, the eeoc rescinded its determination. Before any redetermination had issued, plaintiffs’ attorney decided to proceed with this lawsuit and therefore no determination was ever issued thereafter by the Equal Employment Opportunity Commission.
By asserting that the “pressure of this lawsuit” led to a change, plaintiffs’ counsel implied that the suit had mérit — and that Kohl’s knew that it had merit. Kohl’s was entitled to counteract this implication, the district judge thought, by showing that what Kohl’s knew implied that it would prevail on the merits.
Many decisions by the eeoc are superficial, little more than precursors to right-to-sue letters. But this one was more thorough. Here is the Commission’s own description:
Our equal payment investigation considered whether or not the actual job duties of the deli and bakery manager positions and the deli and bakery clerk positions were substantially equal with respect to skill, effort, responsibility, and working conditions as those of the produce manager and produce clerk positions. To that end, detailed equal pay interviews were conducted with various incumbents of the produce manager and produce clerk positions. These interviews reflected that the produce jobs were dirtier, required more physical lifting of greater weight, more items with greater frequency than the deli and bakery jobs. Moreover, the produce areas are significantly larger than the deli and bakery areas in terms of physical square footage. There are far more items in produce than in deli and bakery and produce accounts for a greater percentage of store sales, i.e., higher sales volume. Produce employees are frequently called upon to help out in other areas of the store stocking the dairy case, retrieving the carts, et cetera. As a result, our investigation concluded that the jobs in question did not meet the required equal pay test and that they are not substantially equal with respect to effort, responsibility, skill or working conditions.
It is understandable that plaintiffs wanted to keep this damning passage from the jury’s eyes, and they succeeded. The jury never learned the reasoning behind the eeoc’s decision. Why plaintiffs’ counsel, having secured a ruling excluding even a mention of the eeoc’s bottom line, then opened the door is a mystery. Still, plaintiffs say, the jury should not have been told about the eeoc’s conclusion because, by the time Kohl’s agreed to reduce the pay differential to 5(t per hour, the eeoc had rescinded its conclusion, so that the report did not counteract the inference for which counsel argued.
After receiving the eeoc’s report (and the accompanying right-to-sue letter) in September 1997, plaintiffs asked the eeoo to reconsider. In December 1997 the eeoc’s District Director withdrew both the conclusion and the right-to-sue letter pending further review. See 29 C.F.R. § 1601.19(b). Before the eeoc could do any further investigation, plaintiffs asked for a new right-to-sue letter, which the eeoc .was obliged to issue forthwith. 29 *927 C.F.R. § 1601.28. Once it sent the right-to-sue letter, the eeoc called off its investigation and neither reissued the original report nor prepared a new one. The upshot was that, when plaintiffs filed their suit, there was no outstanding adverse decision by the eeoo. When she told the jury about the eeoc’s conclusion, the district judge was under the impression that the negotiations to which plaintiffs’ counsel referred took place before the District Director’s order in December 1997. On learning that this was not so, the judge did not instruct the jurors to disregard the report (a direction that would have been futile in any event, sort of like telling the jurors that for the remainder of the trial none of them was allowed to say the word “rhinoceros” to himself).
Was there a significant chance that the jury would misunderstand the significance of the eeoc’s decision, and the purpose for which it had been used-chance so large that it requires reversal even under the deferential standard used to review a district judge’s application of Fed.R.Evid. 403? We think not. Confusion over timing is regrettable, but the judge can’t be blamed for the error in the opening passage of the instruction (“At the time of the 1998 collective bargaining negotiations Kohl’s had a determination” ... ). That language had been drafted by the parties; the judge used it because the parties agreed on it. Plaintiffs deny that they “stipulated” to the language, but no matter; they did not object to it, and that is that. Fed.R.Civ.P. 51.
Because plaintiffs sought to persuade the jury that Kohl’s recognized its culpability, Kohl’s was entitled to rebut this contention using the best available evidence: a decision by the eeoc that the positions were not substantially equal. See
Paolitto v. John Brown E. & C., Inc.,
Doubtless there was a risk that the jury would overestimate the significance of the eeoC’s ruling; this is why such conclusions generally are not admitted (on behalf of either side) in jury trials. See
Lathem v. Department of Children and Youth Services,
AFFIRMED