W. J. Usery, Jr., Secretary of Labor v. Columbia University, and William J. McGill Individually and as President of Columbia University

MOORE, TIMBERS, Before OAKES and Judges. Circuit TIMBERS, Judge: Circuit judgment this appeal On from a entered a trial after bench in the Southern District York, Owen, New of Richard District Judge, ques- the essential presented per- is whether the work respectively by and formed employed by University cleaners meaning Equal “equal” within of the Pay 206(d)(1) Act of 29 U.S.C. § (the Act). (1970)1 agree We with dis- court equal. trict work We affirm.2 I. Equal Pay prohibits employer Act an discriminating employees “between on by wages paying employ-

the basis of sex to . . a rate ees . at rate less than the wages he pays employees . . . work opposite equal sex for on performance requires of which effort, skill, responsibility, equal and Solicitor, Clauss, Associate Ann Carin which are similar performed working under (William Labor, Washington, D. C. Dept, of ” . . conditions . . supra. See note 1 Labor, Melanie Fran- Kilberg, J. Solicitor Nussdorf, Labor, Wash- Dept, of Atty., co provisions the enforcement Invoking C., LaRuffa, V. Re- D. and Francis ington, Act,3 Fair Standards the Secre- Labor Labor, Solicitor, York Dept, New gional commenced the instant action tary Labor brief), City, plaintiff-appellant. on the for University presi- and its against Columbia (Columbia) on March 1974. The Stitt, City (Anthony dent New

Robert S. York enjoin Limitone, Jr., sought to Columbia from dis- Vandenberg, L. action Raymond Thacher, Wood, against female clean- City, criminating New York its Proffitt & ers, brief), allegedly of sex in violation defendants-appellees. on basis on the any 206(d)(1) (1970) provides: based factor other than sex: 1. other 29 U.S.C. Provided, employer paying an having employees subject That who is employer “No wage any provisions rate of this differential violation sub- of this section shall discrimi- nate, not, any comply within establishment which such section shall in order to employees employed, employees subsection, provisions reduce of this wages paying em- the basis of sex wage employee.” on ployees rate at a in such establishment rate less Equal This is second with the our encounter pays wages to than the rate at which he Pay Judge first Act. is reflected in Chief Our opposite of the sex such estab- Friendly’s helpful opinion Hodgson v. Corn perform- lishment 1973), F.2d 226 skill, effort, requires equal ance of which Corning v. Bren sub nom. Glass Works aff’d responsibility, un- and which are nan, (1974), which of course conditions, working except where similar der law of this Circuit. (i) payment pursuant se- is made (iii) niority system; (ii) system; a merit earnings quantity system measures U.S.C. § (iv) quality production; a differential or Act, them For by paying years at a more than Equal Pay Columbia has to its paid than male divided the duties of its hourly rate custodial force lower into sought “heavy” “light” categories. action also an At cleaners. The time employed of trial it further violations and an against cleaners injunction (designated “janitors” prior 1972), 4 of pay. of back award female, whom were 111 light during September trial day At a 15 bench (designated 1972), prior “maids” all of parties, focusing and November whom were female. Since 1972 all “equal . . effort” the statute’s upon cleaning positions have been open appli- criterion, extensive evidence on produced cants of both No sexes.5 male ever has physical requirements applied position for the of light cleaner. Judge The crux of cleaning positions. always paid have been fact on this critical issue finding of Owen’s less than the cleaners. The differen- opinion February forth in his dated is set tial 45 was cents an hour at the time of as follows: 1976 trial. heavy cleaner and light “[T]he assigns Columbia approximately 80% of beyond Going are different. the cleaner the light cleaners to its buildings academic from the job descriptions, extensive testi- and the remainder its residence halls. trial, mony me at adduced before the it is Each cleaner in the group assigned to the heavy clear the cleaner in- buildings daily academic has responsibility greater than light volves that of floors, between 1 and 5 depending on 407 at cleaner.” 1374-75. the the size of and the building functions of Accordingly, judge held Secre- particular assign- rooms included in the tary had failed to sustain the burden of ment. The functions are those one would heavy light proving that and cleaners expect any university, including at class- within perform meaning work rooms, offices, stacks, library and the like. judgment dismissing the Act. From the The mop cleaners dust or vacuum the action, Secretary taken the has in- floors of rooms and some of the corri- appeal.4 stant dors; dust, polish, dampcloth the furni- ture, fixtures, windowsills; baseboards and

II. and walls, remove small spots from the dispute. They ap- facts are not in They The floors and doors. also empty waste- clearly face of pear on the the record. To ashtrays baskets and trashbags. into These necessary to an understanding deposited the extent at the elevator on each floor presented, rulings our on the issues of law where they picked up by heavy cleaners. facts, controlling we performing summarize includ- In their work the light cleaners findings mops, the essential of the district use carpet sweepers, dust household accept pursuant cleaners, brooms, court which we to Fed.R. vacuum toy rags, sponges 52(a). quart Civ.P. and 14 buckets. Some of the Judge companion appeared Owen dismissed a also ac- cation “shower maid” first in its col- Columbia, tion, bargaining agreement. Walker v. 73 Civ. which lective This classifica- encompassed for trial with the had been consolidated instant assigned female cleaners brought action. The Walker action had been to the showers and lavatories in the women’s Rights pursuant VII of the Title Civil Act of hall at residence Columbia. The classification (1970), by 42 U.S.C. 2000e-2000e-17 §§ employees. never included more 8 than At the individual women of Columbia who time of trial of the 4 female cleaners placement, alleged hiring, job discrimination performed the maid” “shower function. promotions pay, training. and The notice of positions All other were limit- appeal judgment dismissing from the the Walk- opened ed to until men 1972 when Columbia er action was withdrawn. remaining them to women. The em- women ployed cleaners time of trial heavy cleaning has been For board, male, formerly worked within this classi- paying cleaning wages more in to a limited fication. number of women since the classifi- 1949 when is accomplished full. Trash removal equipment transport long, un- weigh pounds use of trucks. These are feet 3 feet which carts wheeled itself, including weigh pounds high, wide and 6 feet and equipment The loaded. load, cleaner, pound empty up pounds a 21 full. creates and vacuum indetermi- bag adds an trash a full (1) groups (2) cleaners in and pounds. weight up amount nate on perform additional tasks an occasional the resi- assigned to loading, unloading These include and basis. functions same transporting cleaning halls drums dence solvent buildings. in the academic gallons liquid weigh which hold 55 those rooms and the common day they clean pounds; climbing Each from to 600 14 foot floors, the corri- ground high offices places change ladders to clean residential floors. lounges on the bulbs; dors vacuuming carpets with indus- special on a are cleaned rooms weigh Students’ trial machines to 96 during unoccupied when basis assignment pounds pounds empty and from 122 to 192 the summer. full; cleaning carpets pile with motorized lifters; shovelling snow from entrance may grouped heavy cleaners ways; turning and off venti- categories: (1) those as- four roughly into lation equipment. corridors, lobbies, stairways signed public elevators; assigned public (2) those projects by group (3) handled special lavatories; (3) permanently assigned those regular- cleaners are done (4) assigned and those special projects; to infrequently. but These include scrub- ly buildings. off-campus certain to floors, bing stripping rugs shampooing and washing and Venetian blinds. group daily responsibility primary The corridors, lobbies, the mop to wet (1) is The assignments of those classified elevators, and labora- stairways, classrooms (1), (2) (3) necessarily and are groups in not buildings. They also of the academic tories Hall, example, Avery fast. For in hard and each floor trash left on bags of the collect buildings, heavy of the smaller one one them to transport cleaners and light the wet all and stair- mops cleaner the corridors areas. dumping cases, cleans the lavatories and does (Two light work. handle project cleaners (2) group clean cleaners in heavy The building). in the offices and libraries lavatories. university’s public the daily contrast, building in a large In floors, clean the mop the and wet They dust Library, assignments heavy Butler of the 5 trash, sinks, and wash empty the and toilets among in the are building cleaners divided heavy Many the the walls. from marks (Eleven light 3 classifications. the cleaners heavy the group assist in this cleaners Butler).6 assigned to job group with the the first in cleaners Depending the load trash. removing (4) group The cleaners in are as- hour to than one-half from less this takes buildings signed to small converted office daily. hours adjacent on streets to Columbia’s located campus. They primarily perform main both of these mopping wet In cleaning Light duties. cleaners han- light dolly two which carries groups use assignments these until 1974 when con- dled cleaning and wringers buckets quart security prompted Columbia siderations emp- dolly weighs pounds The solution. The employees. male build- to substitute larger full. For pounds up and ty security ings involved are outside hold which mop use trucks they areas campus main and are perimeter the from 160 to 200 weigh These gallons. during 8 A.M. shift. pounds midnight to 500 cleaned empty and from 300 pounds corridors; cleans the Heavy predominate the second in some of the tories cleaners trash; Chandler, third example, and removes buildings. the chemis- lavatories For project light light special cleaners try building, and 2 work. cleaners does has 3 library building. mops the offices labora- handle cleaner One cleaners. posted cleaners escorted since that change heavy time. At trial several Before campus main light from the they cleaners testified had not light them in. Each buildings applied heavy cleaning positions and locked for these because alone spent night then light heavy cleaning beyond tasks were their ca- later was es- building it, pacity. put her As one of them “I respective cannot do campus. main to the job already.” corted a heavier than I back have buildings only off-campus These There of course was much other evidence uniform line of otherwise exception trial, day appears adduced at the 15 maintains be- which Columbia demarcation forego- the 4 trial transcript. volume cleaning tasks. “heavy” “light” tween sufficient, ing summary is believed listing job descriptions Written however, an understanding for of our rul- cleaning incorporated tasks are below, ings especially district bargaining agreements be- the collective clear, adequate findings court’s concise and Transport Work- and the tween Columbia undisputed of fact based evidence. ers’ Union.7 III. themselves are well aware

The cleaners distinction job Since content is a matter de hesitated to en- assignments and particular employer, termined example, force it. In whether two classifications entail successfully protested assign- an “equal necessarily work” under the Act trash. ment remove must be decided case-by-case on a basis. “light” changed has moreover Hospital Corp., Brennan v. Prince William techni- “heavy” assignments certain (4 denied, 1974), cert. “light” category cally were but (1975); Hodgson 420 U.S. 972 v. Golden exertion com- practice called Inc., Homes, Isles Convalescent heavy cleaning parable to that of tasks. 1972) (per curiam). 1258 Cir. in the Journalism build- wastebaskets proving “equal burden work” is example, frequently are filled with ing, for is the Secretary. Corning involved Glass books, magazines and materi- heavy other Brennan, 188, (1974), Works 417 U.S. 195 light building the cleaners in the als. After Hodgson v. aff’g Corning Works, 474 Glass burden, resulting job of the the complained (2 1973). 226 F.2d Cir. But in meeting that these wastebaskets was reas- emptying the Secretary burden does not have to signed heavy heavy cleaners. The clean- prove that the duties are identi heavy ers also collect the trash which accu- may cal. A violation of Act proven the be in chemistry mulates the laboratories and effort, “skill, responsibility” if the re the drafting architecture rooms. quired performance in the is “substantially equal.” Hodgson Corning light perception the cleaners’ dis- 234; 474 Glass F.2d at tinction between their duties and those of Co., 259, v. Wheaton 421 Schultz F.2d heavy the itself in cleaners has manifested denied, (3 Cir.), cert. 265 398 U.S. 905 ways other as well. cleaners Seven a suggested One court has balanc applied accepted were ing applying “substantially in function opened cleaners when first equal” test: category in to women 1972. did authorize the On-the-job training By “[Congress] not Secre- commenced. weeks, engage 4 or the courts to in wholesale tary end of 7 of the 7 had transferred employer’s pay struc- light cleaning.8 back to No reevaluation concep- their own ture order enforce applied cleaner openings group cleaners. Transport Two of the remain Union Workers’ exclu- position bargaining agent out- seventh has transferred to a sive for all Columbia’s cus- department. employees. buildings grounds side todial and maintenance

959 McDermott, .... But illusory, economic worth Ross and The Equal tions of distinctions overly Pay nice Act 1963: defer A Decade of Enforce- if courts content, evade the employers may ment, 16 B.C.Ind. & Com.L.Rev. Prince William Brennan v. at will.” (1974), Act significantly weight limit the at 285. supra, 503 F.2d Corp., Hospital be given should the fact that male and employees perform female who similar criterion —the “equal effort” perform work in fact different duties. The been in the instant case—has principal issue Secretary contends on the facts of this case cases extensively prior upon elaborated requires rules these promulgat interpretive bulletin argument prongs. reversal. His has two 800.114- Secretary. C.F.R. §§ ed First, argues that, he notwithstanding Act, “effort” (1976).9 Under the 800.163 particular differences tasks required or mental exertion performed by cleaners, the heavy ultimate job. long as the performing So they ultimately expend equivalent amounts comparable, remains of exertion degree What the light of effort. cleaners save in two call for effort dif mere fact having to deal with equipment, unequal. will not render them in kind ferent argument goes, they expend so the in hav- Community Hospi Davis Brennan South larger to cover areas and 1976); handling (10 tal, F.2d 863-64 Cir. Second, additional fixtures furniture.10 Education, Jersey City, v. Board of Brennan significance he attacks the district court (D.N.J. Jersey, New attached to the heavy cleaners’ heavier will (1976). Nor 1974); 29 C.F.R. 800.127 equipment. According Secretary, to the as tasks expended additional “nothing there the record ... employees necessarily suf to male signed support the court’s assumption If the justify pay differential. fice [heavy that the equipment . . signifi cleaners’] tasks do not consume additional which was either infrequent peri- used for employees’ amount of all of cant total or in ods combination with other [heavy Drug time, Hodgson v. Behrens was on or wheels and could denied, (5 Cir.), cleaners] cert. easily, required moved any greater effort.” v. Brookhaven (1973); Hodgson Hospital, General Turning prong, first it is true that perform also female 1970); or if great cover a deal of effort, require additional duties ground night. each But the evidence of Corp., Hospital William v. Prince Brennan of work assignments among distribution 286; persons if F.2d at third supra, 503 ground buildings shows the amount of tasks as additional who cleaners, by the while covered less the male paid less than primary by square some extensive number feet v. Whea question, in see Shultz by cannot specified Secretary, Co., supra, F.2d at 266—in ton Glass easily. very heavy dismissed so clean- is in the additional these situations Secretary responsible singles ers out posi the male to differentiate sufficient for small areas testified to difficulties in the Act. tions under daily assignments. completing More- Secretary’s expert rules, embrace situa- own witness formulated to over These merely corridors, the heavy in effort are testified that cleaners’ where differences tions Secretary’s cifically, responsible a for 60 have inter- li- courts used the Other 9. g., “cubicles”, offices, brary applying carpeted E. pretation an aid in the Act. 5 other County Hospi- rooms, classroom, toilet, private v. Brennan Owensboro-Daviess a and a 1975). (6 tal, n. stairs, F.2d & 13 Cir. flight compared with a clean- lavatories, responsible public for the 16 er Secretary’s mainstay argument in 10. ranging in size from 1 toilet and sink to 4 comparison daily respect is a sinks, in and the trash detail toilets responsibilities and those of two 10,000 daily. building by people used public assigned to the of two building. Spe- lavatories the same academic lobbies, stairways, and lavatories Jersey City, Jersey, elevators New supra, 374 F.Supp. greater 828-29; of dirt than collect a concentration at but see Marshall v. Marist Col- cleaners’ offices and classrooms do lege, (S.D.N.Y. No. 74 Civ. 4713-LWP June effort. require greater cleaning hence 1977.) Close scrutiny of the facts cases, however, these shows that the divi- As we believe that prong, second sion of duties the instant case is materi- appropriate sig- court attached the district ally different. The cited cases follow the equipment. nificance cleaners’ fact pattern emerged which has as the dom- clearly the inference supports record one inant in cases under the Act involving principal cleaners’ task of all types of work. The central fact is the mopping heavily wet areas re- traversed sharing of responsibilities common by quires greater physical wielding effort than male and female rags. dust workers. The mops only frequently This is true not most litigated question because surfaces dirtier but also is whether additional lift- ing, equipment fetching, hauling because the is substantially or other tasks per- and heavier. bulkier formed men require an amount of addi- tional effort sufficient foreclose hold- concept of “effort” in the Act ing of substantial equality under the Act. straightforward. It calls for a direct part For the most the cases have concluded comparison of the amount of exer the additional duties are either too required by jobs; there no factor insubstantial amount or too inconsistent- compensate physiological dif added ly assigned to measure up to the Act’s stan- between men and women. Based ferences dard of substantial equality.11 See also our careful review of the record before Hodgson v. Corning supra, 474 say us we cannot that the district court was 234; at F.2d City Peltier v. Fargo, clearly making this direct erroneous com (8 F.2d 376-79 1976); Cir. Brennan v. finding and in as a fact that parison Hospital Prince William Corp., supra, 503 “greater cleaning involves effort”. 286-90; Hodgson F.2d at v. Drug Behrens which, We are mindful of other cases Co., supra, 1048-50, 1051; 475 F.2d at janitors the Act to applying maids who Hodgson v. Golden Isles Convalescent general the same cleaning duties Homes, Inc., 1257-58; supra, 468 F.2d at cleaners, and light as Columbia’s Schultz American Can Co.-Dixie Prod- substantially held that the involve ucts, (8 1970); 360-61 Cir. effort. Brennan South Com- Davis Schultz v. supra, Wheaton Glass munity Hospital, 863-64; supra, 538 F.2d at F.2d at 262-63. Brennan Goose Creek Consolidated Inde- District, case, contrast, In the instant pendent School male Education, 1975); employees’ Brennan v. Board consistently require duties Community practice In Brennan v. South Davis Hos- jani- at duties Columbia. But in janitors pital, supra, performed and maids tors and maids did almost identical work. 519 duties, except janitors (1) common occasionally operated stripping a floor ma- Education, Jersey In Brennan v. Board of machine; chine; (2) (3) refilled a soft drink City, Jersey, janitors New the maids and receptacle; (4) carried trash cans to an outside mopping, sweep- both the basic wet ladders; (5) used shovelled snow. The ing, classrooms, dusting corridors and ladders, occasionally maids also worked on janitors’ yard lavatories. The court found the trash, cleaning additional carried had work, work, removal, light hauling snow ladder janitors. duties not with the The Tenth shared stripping and floor either too incidental to over- Circuit, recognizing janitors’ that ad- while [performed] come the basis “common chores effort”, require ditional duties did “extra found by workday” for the bulk of the or balanced preclude the amount too insubstantial assigned additional tasks to the maids. application. Act’s 538 F.2d at 863-64. F.Supp. at 828-29. Brennan v. Goose Creek Consolidated Inde- Hodgson Diego See also v. San Unified District, pendent supra, School was to the District, ¶ 32,390 School 71 CCH Lab. Cas. employer’s job descrip- same effect. There the (S.D.Cal.1973). tion the actual division somewhat resembled of job . Hodgson classifica- of them. .” Columbia’s effort. Brookha- greater with the make- equated Hospital, ven General supra, cannot F.2d at tions found frequently so 725. See also 29 C.F.R. classifications 800.128 weight v. Bacharach Angelo cases. See prior in the assuming But that this strict reading of Co., 1172 & n. 11 Instrument the statute applies to the Moreover, since the “addi- 1977). (3 Cir. assigned off-campus buildings, even heavy cleaners of Columbia’s duties tional” though majority the employees in the jobs, the incre- their entire comprise in fact perform “male” classification work consist- is more “substan- involved of effort ment ently demanding greater effort than that of the cases involved than that tial” required classification, in the “female” an cited above. precludes additional factor its Judge at Co- here. Owen found that management Both recog- cleaning question performed years than 30 “alone at for more lumbia night off-campus difference buildings of a material the existence located out- nized by heavy University’s required security perimeter.” side of effort in the amount in the opinion, classifications Taken context of his cleaning. this entirely necessarily implies sex- a further finding were that involved never here 1949, long off-campus performed before most work is Ever since in more based. dangerous conditions. The opened were record heavy cleaning positions does basis, that Columbia has show solicitude for the safety an women on women em- wages cleaners’ motivated paid heavy per- change assignments. to those equivalent in tasks ployed note 5 male cleaners. See by the formed These circumstances call for the applica- that The record shows supra. provision of the Act which per- It cognizant of the difference. cleaners are pay mits differentials between work per- today it is the finding that even supports a formed under dissimilar “working condi- clean- effort demanded additional tions”. As defined the Supreme Court majority the vast ers which has deterred Corning Brennan, Glass Works v. supra, availing light cleaners Columbia’s concept this encompasses eliminate opportunity themselves of employment. the “hazards” of Specifically, pay. hourly disparity cent the 45 regularly “the hazards encoun- tered, frequency, and the severity of the under- Based on this evidence they can injury those most cause” taken into standing experience Id.; involved, Hodgson Corning the undis- account. see closely together with cleaning calls for 474 F.2d at 231. This case puted fact effort, hold, dangers court does not involve the of machine we as the district greater line, assembly expo- an but the risk of did, light cleaning are not mean- to urban crime faced women work- substantially equal work within the sure unguarded alone middle of the Act. ing of genu- night. long So hazard is we have reaching In this conclusion one, however, its source is not determi- ine compara from consideration excluded the Act. native under heavy cleaners as number of tively small True, record here does not show buildings who off-campus office signed cleaner, campus, on or off any light identical to that job. while on the a victim of crime campus. On the has been light cleaners on by the tangible it, category of court has demanded recently created One face apply existence before fre of a hazard’s proof would fall within the heavy cleaners provision “working conditions” ing the cited rule above that quently mentioned Hodgson Daisy Manufac Act. See signifi tasks must “consume a additional (W.D. 543-44 turing of the time of cant amount all those whose curiam, 445 F.2d Ark.1970), per aff’d justified differentials are to be pay in terms 962 Hodgson Corning v. Works, case however we Glass 1971). In the instant 474

(8 Cir. 226, (2d 1973), of such a threshold 234 imposition hold that the Cir. aff’d sub nom. Corn ing Brennan, 188, be unreasonable. Glass Works v. 417 requirement would Co- 2223, 94 accord, S.Ct. 41 L.Ed.2d 1 (1974); lumbia, university forced to great cope g., e. Brennan v. Community South Davis uncongenial the sometimes contempor- 859, Hospital, (10th 1976); 538 F.2d Cir. ary environment, urban is entitled to re- 259, Shultz Wheaton Glass cognition preventive measures it (3d Cir.), denied, cert. 398 U.S. university’s good takes. Moreover the faith (1970). S.Ct. L.Ed.2d I Because open question. Only matter is not this think that court district misconceived genuine concern could motivated it to test, I would reverse and remand with and, barely costs increase its custodial two appellate out indulging in the factfinding months before the instant action was com- that it seems to me otherwise becomes nec menced, legal impact. risk an adverse In- essary judgment to sustain the below.2 deed, Secretary has described Colum- reassigning these buildings bia’s action in The district evidently court thought cleaners as “laudable”. question fundamental is whether jobs same, and heavy cleaners’ are the significance Nor do we attach to the fact not whether are they substantially equal. that the cleaners have not had these appears This erroneous standard in the ex- off-campus assignments during the indefi- plicit language opinion: of the court’s interpretation past. Any nite other In any E.P.A. action ques- threshold employers Act would deter who maintain always jobs equal. is: are Plain- compliance classifications in with the tiffs have the of proving burden that as Act taking they from corrective action once aggrieved parties they perform equal existing security conclude that some work, not merely wage differential safety arrangement unsatisfactory. We jobs exists and that the are similar. interpretation decline to sanction F.Supp. (emphasis at 1374 in original). the Act. “equal” district court’s is not qualified Affirmed. by the requisite “substantially.”3 too, court’s conclusory discussion, factual OAKES, Judge (dissenting): Circuit reveals an of the wrong legal respectfully I dissent. test. “[wjhile It finds that there many are majority correctly states the test of similarities done Equal Pay law under the Act of 1963:1 light cleaners heavy cleaners, work; “equal work” be need not “identical” work is not the same.” Id. at (empha- by Judge Friendly, stated “inconsequen- added). sis The district court then con- disregarded tial be differences can as long jobs cludes that “the cleaner and ” as the ‘substantially equal.’ are different,” in that “206(d)(1) put Secretary 1. 29 U.S.C. either the or the courts in the evaluating jobs determining business of exercise, engage 2. Were I to in this I am doubt- proper what constituted a differential for un- ful that I would arrive at the same result as the equal work. majority, factfinding my but I do consider (quoting Hodgson at 1374 v. Corn function. ing (2d Glass 1973), Corning aff’d sub nom. Glass Works True, quotes opinion Hodgson Brennan, 417 U.S. 94 S.Ct. Corning Works which enunciates (1974) (footnote omitted)). por L.Ed.2d 1 This substantially equal quote test. its en- however, Hodgson, tion of does not address tirety is as follows: substantially equal. issue when It complaint [T]he must dismissed even if requirement discusses the of dismissal it once wage unreasonably differentials were substantially is determined that the work is not large comparison with the actual differ- equal, notwithstanding wage excessive differ effort, skill, responsibility ences in or work- unequal jobs. entials between and were based conditions on discrimina- tory motivation; Congress did not intend to general work was within the descriptions cleaning func- job the beyond “[g]oing slight and the in job the of differences kinds of it is clear than that of prevent finding effort effort would not a of sub- greater involves efforts.” Brennan v. (footnotes omit- Id. South stantially equal 1374-75 cleaner.” Community Hospital, Davis supra, apparent therefore 538 F.2d ted). It is inquiry the critical eyes at 864.4 the opin- court’s Nor does district court’s district or “differ- is the “same” very the work refer whether ion similar cases from other jurisdictions5 which have ent.” found maid and janitorial functions to be substantially to use the failure court’s The district the Act. equal under Such a discussion by the demonstrated is further test proper would seem essential because these cases to the issue of analysis relevant of lack analyze degree the of similarity between Thus, court con- the district substantiality. janitor maid and work sufficient to meet evidentiary find- cludes, specific without legal the test and come to a conclusion heavy cleaner involves job of that “the ings, contrary to that of the district court. light cleaner.” that of effort than greater Id. at 1375. short, opinion In the below indicates to the judge proceeding me that district was the differ- it said But nowhere misapprehension under a of law. The only magni- jobs are of such ences then, remaining question, assuming this to judicially fail to meet they tude that true, undisputed be is whether the facts are the Tenth substantiality test. As imposed required that we so clear as a matter of in a similar case explained recently Circuit reach of law to the same conclusion even un- determination trial court’s upholding correct, Cf. jobs, substantiality der test. custodial substantially equal “[a]ll plays sure, holding spices particular was ren- of or other small be items. 4. To decided this case. below required after the court in dered However, difference kind of effort Secretary’s regula- rested on it appear does not to make their to, though availa- alluded were not tions which ble, unequal any respect effort which would below, relied on in had been and which justify differential, wage where such differ- J., Educ., Jersey City, N. of v. Board Brennan expended ences in kind of effort (D.N.J.1974), apply- F.Supp. 828-29 ordinarily are not considered a factor reg- equality standard. The ing the substantial setting wage Further, levels. the occasion- part: pertinent provide in ulations sporadic performance activity al or of an the measurement of is concerned Effort may require physical extra or mental needed for mental exertion or justify exertion is not alone sufficient to finding jobs job. Where performance of a unequal of effort. Act, equal there is under the otherwise (1976). regula- 29 C.F.R. 800.128 While the § in the amount or difference no substantial degree courts, they controlling upon tions are not expended must be effort which body experience and in- do constitute a comparison, performing under judgment formed to which courts and liti- equal per- may require effort gants may properly guidance. resort for may though the effort be ex- formance even weight judgment particular such a in a ways jobs. the two Dif- erted in different upon thoroughness depend evi- case will required only in the kind of effort ferences consideration, validity of its dent its justi- expended will in such a situation consistency reasoning, with earlier and its fy wage differentials. pronouncements, and all those factors later (1976). regulations These 800.127 29 C.F.R. power persuade, lacking give it if examples determining to aid in furnish also power equality given to control. of effort exists in a whether 134, 140, Skidmore v. Swift & 323 U.S. case: equal principle To illustrate the 89 L.Ed. 124 S.Ct. ways, suppose in different that a exerted g., Indep. E. Brennan v. Consol. Goose Creek employed supermarket male checker Dist., (5th 1975); Cir. School spend part required carrying his time Educ., J., Jersey City, N. Brennan v. Board of heavy packages replacing out volving stock in- Subsequent supra, 374 at 828-30. lifting items whereas a opinion, the Tenth Circuit the district court’s required female checker is degree to devote an janitorial efforts substan- also found maid portion during of effort a similar tially equal. Davis Brennan v. South Commu- requiring performing her time to fill-in nity Hosp., at 863-64. dexterity greater rearranging dis- —such (9th Barber, incidental under the correct test. See Yanish (remand unnecessary findings when 1956) Brennan v. South Community Hospi- Davis presents tal, 863-64; the record no insufficient if are F.2d at Shultz v. fact) (quoting material issue of genuine Products, American Can Company-Dixie Co., 80 v. Lenkin Construction 356, (8th Burman 1970). go I could 125, 126, 827, (1945)); App.D.C. on, but it unnecessary. consider The clean- Holtzoff, Federal Practice W. Barron & A. not, ing jobs law, do as a matter of fall (Wright at 570-71 and Procedure § outside the confines act. 1961) (same). ed. Firmly believing Judge Owen would I belaboring the issue think that Without give the facts a different were They are not clear. cannot be the facts so he to have before him the correct test of compel cleaning the conclusion that said to my duly evoke, law that brethren I would hallways as and lobbies “public” areas such let opportunity him have the to do so rather cleaning effort requires more overall than than him sustain as a matter of law the offices, trafficked areas class- less dissent, facts. I therefore and would re- libraries, or or that heavier rooms verse and remand. job, former necessary for the equipment periods for infrequent which is either used janitors with or is on readi- jointly

or other wheels, requires greater overall

ly movable by janitors expended

effort. effort public clean areas fre- required

who appear a wet would mop and to use

quently maids who balanced effort of

to be areas, KATZ, Bankruptcy clean move furniture in Donald larger must Trustee areas, Foundry Company vacuum, Belleville, hard-to-reach Oakland order clean Illinois, Inc., dust, Plaintiff-Appellant, wax furniture. As the wash notes, long as the ultimate majority “[s]o comparable, remains of exertion degree The FIRST NATIONAL BANK OF jobs call that two dif- mere fact HEAD, Defendant-Appellee. GLEN not them un- kind will render ferent No. Docket Ante, 76-7577. equal.” at 959. two appear differences be- There United States of Appeals, Court janitors tween work of restroom Second Circuit. former a wet mop the maids: use Argued May 1977. push of them trash trucks out to and some weight the street. The minimal differen- Decided Oct. 1977. (two dry mops tial wet and Certiorari Denied Feb. pounds compared one-quarter three See 98 S.Ct. 1250. hardly of substan- pound) requires finding effort, especially dry tial extra when the

mops large must be maneuvered around Similarly,

numbers seats and benches.6 eight' pushing of trash trucks for day is not

twenty minutes a so enormous a require finding

task as of substantial as a of law. In fact

difference matter these considered minor and

differences could be pails pound Furthermore, cleaning heavier water carried on carts. dollies the maids weight pounds carry lighter pails a total loaded water hand. significantly different from the maids’ 111-

Case Details

Case Name: W. J. Usery, Jr., Secretary of Labor v. Columbia University, and William J. McGill Individually and as President of Columbia University

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 4, 1977

Citation: 568 F.2d 953

Docket Number: 398, Docket 76-6071

Court Abbreviation: 2d Cir.