Washington County v. Gunther Brief Amici Curiae in Support of Respondents

    No. 80429

R E C E I V E D

JAN 2 8 1981

. nFFinr OF Tltf.fj FRK
In T he SUPHtivic COURT, U.3.

§it|UTiiu' Qlmul nf tljx> luitpii g>tatpa
O c t o b e r  T e r m , 1980

C o u n t y  o f  W a s h i n g t o n , et al,
v Petitioners,

A l b e r t a  G u n t h e r , et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF
THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, THE COALITION OF LABOR UNION 
WOMEN, THE WOMENS EQUITY ACTION LEAGUE, 
THE N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., THE WOMEN’S BAR ASSOCIATION 
OF THE DISTRICT OF COLUMBIA and 
NATIONAL EDUCATION ASSOCIATION 

IN SUPPORT OF RESPONDENTS

Jo h n  B. Jo n e s , Jr .
N o r m a n  Redlich

Co-Chairmen
W il l ia m  L. R o bin so n  
N o r m a n  J. C h a c h k in  * 
B eatrice  R osenberg  
R ich ard  T . Se y m o u r  

Lawyers’ Committee for 
Civil Rights Under Law 

733 - 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amici Curiae
January 28, 1981 * Counsel of Record

W il so n  - Epes  Pr in tin g  C o . .  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n . d .C .  2 0 0 0 1



INDEX
Page

INTEREST OF AMICI CURIAE ................................  1

STATEMENT..................................................................  4

SUMMARY OF ARGUMENT ......................................  5

ARGUMENT .........................   8

THERE CAN BE DISCRIMINATION IN COM­
PENSATION BASED ON SEX UNDER TITLE 
VII EVEN IF MEN AND WOMEN DO NOT 
WORK AT EQUAL JOBS.....................................  8

A. Allegations of Discrimination in Compensation
Based on Sex Do Not Necessarily Require 
Proof of Comparable Worth of Male and Fe­
male Jobs..................... .......... -............ — ........  9

B. The Bennett Amendment Does Not Limit the
Definition of Discrimination But Merely In­
corporates the Defenses of the Equal Pay Act.. 15
1. The language of the statute.......................  15
2. The legislative history .................................. 17
3. The administrative interpretation ............. 21
4. Judicial decisions ........................................  22

CONCLUSION ................................................................  25

(i)



11

TABLE OF AUTHORITIES
Cases: Page

Ammons v. Zia Co., 448 F.2d 117 (10th Cir.
1971) ....................................................................... 23

Arkansas Educ. Ass’n V. Board of Educ., 446 F.2d
763 (8th Cir. 1971) .............. ............ .................  24

Chandler V. Roudebush, 425 U.S. 840 (1976)____  17n
Christensen v. State of Iowa, 563 F.2d 353 (8th

Cir. 1977) ................................   11
City of Los Angeles V. Manhart, 435 U.S. 702

(1978) ............ ...................................................................................................................... . . . . . . 6, 11,13,24
Corning Glass Works V. Brennan, 417 U.S. 188

(1974) ......................................................    20,21
Evans V. Central Piedmont Community College,

475 F. Supp. 114 (W.D.N.C. 1979)................   11
Franks V. Bowman Transp. Co., 424 U.S. 747

(1976) ........................ .......... ....................... .........  7, 15
General Elec. Co. V. Gilbert, 429 U.S. 125 (1976).. 21
Gunther v. County of Washington, 623 F.2d 1303

(9th Cir. 1979).......       4-5
Hodgson V. Robert Hall Clothes, 473 F.2d 589

(3d Cir.), cert, denied, 414 U.S. 866 (1973)....20, 21
Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972) .... 17
IUE V. Westinghouse Elec. Corp., 631 F.2d 1094 

(3d Cir. 1980), petitions for cert, filed, 49 U.S.
L.W. 3410 (Nov. 14, 1980), 3456 (Dec. 11,
1980) ........ ............................................ 5, 8,10,12,18, 22

Kyriazi V. Western Elec. Co., 461 F. Supp. 894
(D.N.J. 1978) ................. ....... ............ ...... .........  12

Laffey V. Northwest Air Lines, Inc., 567 F.2d 429 
(D.C. Cir. 1976), cert, denied, 434 U.S. 1086
(1978) ....................................................................  13, 22

Lemons V. City of Denver, 620 F.2d 228 (10th Cir.
1980), cert, denied, 49 U.S.L.W. 3250 (Oct.
6, 1980)...... ...........................................................  8, 24

Quarles V. Philip Morris, Inc., 279 F. Supp. 505
(E.D. Va. 1968) .................................................. 13

Roesel v. Joliet Wrought Washer Co., 596 F.2d
183 (7th Cir. 1979) .......................................... 6,11,13



Ill

TABLE OF AUTHORITIES—Continued
Page

Stastny V. Southern Bell Tel. Co., 628 F.2d 267
(4th Cir. 1980) .................................................... 23

Teamsters V. United States, 431 U.S. 324 (1977).. 13
Westinghouse Elec. Cory. v. Nuclear Regulatory

Comm’n, 555 F.2d 82 (3d Cir. 1977) ................. 17
Wetzel V. Liberty Mutual Insurance Co., 449 F.

Supp. 492 (W.D. Pa. 1978) ................... ............  13

Statutes and Regulations:
Title VII, Civil Rights Act of 1964, 42 U.S.C.

§§ 2000e et seq. (1976) ..................................... .passim
Section 703(a), 42 U.S.C. 2000e-2(a)...........6, 7,15
Section 703(h), 42 U.S.C. 2000d-2(h)..........passim

The Equal Pay Act of 1963, 29 U.S.C. § 206(d)
(1976) ........................— .......... .............................passim

18 U.S.C. § 1905 ....... ............................................  17
28 U.S.C. § 1343............................................... ......  17
29 Fed. Reg. 5548 ........................ ............................. 20

Legislative Materials:
H.R. Rep. No. 92-238, 92d Cong., 1st Sess. (1971).. 18
109 C o n g . Rec. (1963) ...................... ................... 14
110 Co n g . R e c . (1964) .......................................... 19

EEOC Decisions:
Case No. 66-5762 (June 20, 1968), 1973 CCH

EEOC Decisions  ̂6001 ..... ........... ..................... 22
Decision No. 70-112 (Sept. 5, 1969), 1973 CCH

EEOC Decisions U 6108 .................................... . 22
Decision No. 71-2629 (June 25, 1971), 1973 CCH 

EEOC Decisions U 6300 ..............................   22

Miscellaneous:
R a n d o m  H ouse D ic t io n a r y  (1967) __   16n
W ebster ’s Second  I n t e r n a t io n a l  D ic t io n a r y

(1952)....................................................................  16n



In T he

Supreme Okrurt of the ituiteii States
O c t o b e r  T e r m , 1980

No. 80-429

C o u n t y  o f  W a s h in g t o n , et al,
Petitioners,

v.

A l b e r t a  G u n t h e r , et al.

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF
THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 
UNDER LAW, THE COALITION OF LABOR UNION 
WOMEN, THE WOMENS EQUITY ACTION LEAGUE, 
THE N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., THE WOMEN’S BAR ASSOCIATION 
OF THE DISTRICT OF COLUMBIA and 

NATIONAL EDUCATION ASSOCIATION 
IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
was organized in 1963 at the request of the President 
of the United States to involve private attorneys in



2

the national effort to assure civil rights to all Americans. 
The Committee has over the past eighteen years enlisted 
the services of over a thousand members of the private 
bar in addressing the legal problems of minorities and 
the poor. The Committee’s membership today includes 
past Presidents of the American Bar Association, a num­
ber of law school deans, and many of the nation’s lead­
ing lawyers. Through its national office and its nine 
local offices throughout the country, the Lawyers’ Com­
mittee has been actively involved in the enforcement and 
interpretation of the Civil Rights Act of 1964. To secure 
the rights of minorities and of women, it has litigated 
well over a hundred cases under Title VII of that Act.

The Coalition of Labor Union Women (CLUW) is a 
national membership organization of women and men 
who are members of labor unions. CLUW has thirty 
active chapters throughout the United States with mem­
bers from more than 65 International Unions. CLUW 
is dedicated to the participation of women within their 
unions and to removing all forms of discrimination in 
the workplace.

The Women’s Equity Action League is a national mem­
bership organization created to promote educational, legal 
and economic equality for women. It has a particular 
interest in this case because of its commitment to the 
principle of fairly compensating work done by women 
on the same basis as work done by men.

The N.A.A.C.P. Legal Defense and Educational Fund, 
Inc. is a non-profit corporation established under the 
laws of the State of New York to assist minorities to 
secure their constitutional and statutory rights through 
the prosecution of lawsuits. Since the effective date of 
Title VII, the Fund has prosecuted hundreds of cases 
under that statute, challenging employment discrimina­
tion based on race or sex. Because many low-paid jobs 
for women are disproportionately held by blacks, the in­



3

terpretation of Title VIPs ban on sex discrimination will 
have a strong impact on black women.

The Women’s Bar Association of the District of Co­
lumbia is a voluntary, non-profit organization of attor­
neys with over 1000 members. The Women’s Bar As­
sociation is concerned with local and national issues 
which particularly affect women and the law, and is 
dedicated to the advancement and protection of the in­
terests of women.

The National Education Association is the nation’s 
oldest and largest organization of educators, with a 
current membership of more than 1,700,000 persons. 
NEA believes that reversal of the lower court’s ruling 
in this case would substantially restrict Title VII pro­
tection for public school teachers employed in positions 
such as coaching, where women may be performing work 
that is similar to work performed by males, but which 
a court may not find to be “ substantially equal.”

The participation of amici in this case reflects their 
belief that women continue to encounter pervasive dis­
crimination in the workplace, including discrimination 
in rates of compensation. The purpose of Title VII of 
the 1964 Civil Rights Act was to afford a federal remedy 
against such discrimination, to women as well as to mem­
bers of racial and national origin minority groups. This 
purpose can be realized only by giving the Act a reading 
consistent with its remedial goals. Amici believe that 
the Ninth Circuit’s construction of the Act in this case 
is consistent with both the statutory language and the 
legislative purpose and should be affirmed; and that a 
contrary interpretation could sharply limit progress to­
ward the elimination of sex-based differentials in com­
pensation and terms and conditions of employment.1

1 The parties’ written consents to the filing of this brief are 
being filed with the Clerk pursuant to Rule 36.2 of the Supreme 
Court.



4

STATEMENT

Respondents, matrons employed by the petitioner 
County to guard female inmates of the county jail, 
brought suit under Title VII of the 1964 Civil Rights 
Act in the United States District Court for the District 
of Oregon, alleging that they had been discriminated 
against with respect to compensation because of their sex 
in that they were not paid the same salary as men who 
performed the equivalent task of guarding male inmates. 
The district court found that, although the matrons’ jobs 
may have required as much skill as those of the male 
guards, the matrons’ jobs did not require equal effort or 
responsibility, since men and women had substantially 
different workloads. It also held that, if  plaintiffs could 
not establish equality of work under the standards of 
the Equal Pay Act, they could not prove discrimination 
under Title VII. (Pet. App. 68-70.)

The court of appeals upheld, as not clearly erroneous, 
the findings of the district court that the jobs of female 
matrons and male guards were not equal under the 
standards of the Equal Pay Act. It held, however, that 
Title VII was of broader scope than the Equal Pay Act, 
and that plaintiffs were entitled to prove, if  they could, 
that a portion of the discrepancy between their salaries 
and that of the male guards could be ascribed only to 
sex discrimination. Gunther v. County of Washington, 
623 F.2d 1303, 1314 (9th Cir. 1979). On rehearing, in 
answer to the contention that its decision would rein­
state a standard of “ comparable worth”  which Congress, 
in adopting the Equal Pay Act, had rejected, the court 
below specifically noted that the effect of its decision 
would not be to substitute a “ comparable worth”  stand­
ard for an “ equal worth” standard. It said (623 F.2d at 
1321) :

Where a Title VII plaintiff, claiming wage discrim­
ination, attempts to establish a prima facie case



5

based solely on a comparison of the work she per­
forms, she will have to show that her job require­
ments are substantially equal, not comparable, to 
that of a similarly situated male. The standards de­
veloped under the Equal Pay Act are relevant in this 
inquiry. In most cases, an equal work theory will 
provide the most practical method of establishing a 
prima facie case of wage discrimination. All we 
hold here is that a plaintiff is not precluded from 
establishing sex-based wage discrimination under 
some other theory compatible with Title VII.

SUMMARY OF ARGUMENT

The basic question in this case is whether allegations 
of discrimination against women in compensation be­
cause of their sex state a claim under Title VII in the 
absence of an allegation that men and women occupy 
similar jobs. Petitioner’s position that the Bennett 
Amendment incorporates into the definition of discrimi­
nation the limitations o f the Equal Pay Act would mean 
that, no matter how intentional the lowering of the 
salary for a job because it was to be occupied by a 
woman ; no matter how deliberate the practice of using 
different systems for fixing the wages of men’s and 
women’s jobs, there can be no remedy for such disparate 
treatment unless the women involved can demonstrate 
that equal jobs are filled by men. The court below, like 
the Third Circuit in IUE v. Westinghouse Elec. Cory., 
631 F.2d 1094 (3d Cir. 1980), petitions for cert, filed, 49 
U.S.L.W. 3410 (Nov. 14, 1980), 3456 (Dec. 11, 1980), 
properly rejected that position.

A. There can be a showing of discrimination in com­
pensation on the basis of sex without a showing of com­
parable worth of dissimilar jobs under a system of in­
dustrial job evaluation. Discrimination would occur if 
an employer deliberately lowered the salary of a par­
ticular job because it was to be filled by a woman, even



6

if no man occupied a similar position. See Roesei v. 
Joliet Wrought Washer Co., 596 F.2d 183 (7th Cir. 
1979).

The use of a system for fixing the compensation of 
women different from the system used for compensating 
men, with the inevitable lowering of women’s salaries 
as a result, is discriminatory whether or not men and 
women occupy equivalent jobs. This Court so recognized 
in City of Los Angeles v. Manhart, 435 U.S. 702 (1978) 
when it held that it was a violation of Title VII to lower 
the compensation of women by requiring them to pay 
more into a pension fund than was required of men. 
Nowhere in its opinion did the Court find it necessary to 
discuss whether all jobs were occupied by both men and 
women; the significant fact was that women as a class 
were treated differently from men as a class.

While there can be instances of discrimination against 
individual women in compensation with respect to dis­
similar jobs, by and large, where the jobs are not equal, 
the discrimination is likely to be systemic; i.e., to result 
from differences in the scale or method by which salaries 
are fixed for men and for women. There is no reason to 
attribute to Congress an intention to permit such sys­
temic discrimination against women when it clearly for­
bade such discrimination against other minorities.

The Equal Pay Act, at the time it was passed, was 
recognized as being an act of limited scope. Title VII, on 
the other hand, was a broad statute aimed at eradicat­
ing discrimination in employment as a factor in Ameri­
can life. When Congress, which had originally focused 
on discrimination against blacks and minorities, added 
sex as a prohibited basis for discrimination, it knew 
that it was prohibiting all forms of discrimination except 
for defined exceptions.

B. Section 703(a) makes unlawful “ all practices in 
whatever form which create inequality in employment



7
due to discrimination on the basis of race, religion, sex 
or national origin.” Franks v. Bowman Transp. Co., 424 
U.S. 747, 763 (1976). The Bennett Amendment, which 
appears in Section 703(h) (relating to defenses), can­
not reasonably be read as curtailing the broad definition 
of unlawful acts in Section 703(a). It permits defenses 
“ authorized”  under the Equal Pay Act. The fact that 
the Equal Pay Act forbids pay differentials only for 
equal work, with certain exceptions, does not mean that 
it authorizes discrimination for unequal work. “ Au­
thorize”  means to establish or approve by authority. 
The acts authorized by the Equal Pay Act are the excep­
tions which permit unequal pay for equal work.

The legislative history of the Bennett Amendment does 
not support the view that the Amendment was intended 
to limit the definition of discrimination in Section 703 
(a ). The remarks on which petitioner relies are so 
equivocal that they do not serve to overcome the normal 
reading of Section 703(h) as relating to defenses rather 
than as qualifying the definition of discrimination in 
Section 7 03 (a ).

The early EEOC guidelines on sex discrimination and 
the opinions of its general counsel, on which petitioner 
relies, state no more than that the standards for de­
termining what constitutes equal work for the purposes 
of the Equal Pay Act would be used in determining 
whether discrimination under Title VII exists where 
men and women perform “ equal work.”  This does not 
exclude recognition of discrimination in compensation 
other than unequal pay for equal work. Nothing in the 
guidelines or the opinions represents a determination 
that a system of disparate treatment in fixing the sala­
ries of men and women would not constitute a violation 
of Title VII. To the contrary, when presented with such 
a claim, the Commission, under the early guidelines, held 
that the allegations stated a claim under Title VII.

The only two judicial decisions which have considered 
the question of the Bennett Amendment in depth are the



8
decision below and the decision of the Third Circuit in 
the IUE case, supra, which is in accord. The opinions 
on which petitioner relies relate to the sufficiency of proof 
in the particular case, rather than to the general ques­
tion of whether there can be proof of discrimination in 
compensation with respect to different jobs. In many 
of the cases, the claims were that women were paid less 
money for doing jobs similar to those filled by men. 
There was in those cases no proof of intentional sex 
discrimination because the jobs were filled by women, 
or that different methods were used to fix the salaries of 
men and women, or even that gross dissimilarity in pay 
with respect to similar, even though different, jobs was 
at least in part attributable to the fact that the jobs 
were filled by women. The Tenth Circuit, in Lemons v. 
City of Denver, 620 F.2d 228 (10th Cir. 1980), cert, 
denied, 49 U.S.L.W. 3250 (Oct. 6, 1980), rejects, as 
proof of discrimination, a showing of comparable worth 
of totally dissimilar jobs for which compensation had 
been fixed by a method which the district court found 
to be the same for men and women. That decision in 
no way conflicts with the position of the court below. 
What is involved here is an allegation of deliberate dis­
crimination against women because of their sex. That 
states a cause of action under Title VII, even if  men 
and women do not occupy the same or equal positions.

ARGUMENT

THERE CAN BE DISCRIMINATION IN COMPENSA­
TION BASED ON SEX UNDER TITLE VII EVEN IF
MEN AND WOMEN DO NOT WORK AT EQUAL JOBS

The basic question in this case is whether allegations of 
discrimination against women in compensation because of 
their sex, like allegations of discrimination based on na­
tional origin or race, state a cause of action under Title 
VII without the necessity of alleging (and proving) that 
the women who claim to have been discriminated against



9
occupied positions equal to those occupied by men. Peti­
tioner’s position— that Section 703(h) of Title VII, known 
as the Bennett Amendment (set out infra at 15-16), incor­
porates the limitations of the Equal Pay Act into the 
definition of discrimination, rather than setting forth 
possible defenses to a prima facie case— would mean that, 
no matter how intentional the lowering of wages for 
particular jobs because they were filled with women; no 
matter how widespread the practice of using different 
systems for determining the wages of men’s and women’s 
jobs, there can be no remedy for such disparate treat­
ment unless the women involved can demonstrate that 
substantially equal jobs are filled by men. The court 
below, like the Third Circuit in IUE  v. Westinghouse 
Elec. Corp., 631 F.2d 1094 (3d Cir. 1980), petitions for 
cert, filed, 49 U.S.L.W. 3410 (Nov. 14, 1980), 3456 (Dec. 
11, 1980), properly rejected that position. The Bennett 
Amendment does not define discrimination. Discrimina­
tion is broadly defined in Section 703(a). The Bennett 
Amendment, Section 703(h), which appears in the part 
of the statute dealing with defenses, is properly inter­
preted in accordance with its language and position in 
the statute as relating to defenses to a prima facie case 
of discrimination, not as defining discrimination. How 
that discrimination is to be proved is a matter not prop­
erly before the Court at this time, although we do point 
out that proof of such discrimination need not rest on 
proof of comparable worth of dissimilar jobs. All that 
this Court need decide here is that, under Title VII, 
there can be discrimination in compensation for women, 
even though men and women do not occupy jobs which 
would be deemed equal under the Equal Pay Act.

A. Allegations of Discrimination in Compensation Based 
on Sex Do Not Necessarily Require Proof of Com­
parable Worth of Male and Female Jobs

Petitioner argues this case on the assumption that, if 
men and women occupy positions which would not be



10
deemed equal for the purposes of the Equal Pay Act, 
a claim of discrimination could be proved only by a show­
ing that the jobs of men and women are of comparable 
worth under a system of industrial job evaluation. On 
this basis, it devotes a large part of its brief to arguing 
a proposition which is not involved in the case at all, 
i.e., that Congress made it clear, at the time it passed the 
Equal Pay Act, that it did not intend to require all 
American business to engage in a job evaluation program 
to determine the comparable worth of dissimilar jobs. 
Nothing in the position of plaintiffs, and nothing in the 
opinion of the court below or of the Third Circuit in 
IUE  v. Westinghouse, supra, would require businesses 
to engage in job evaluations if  they did not choose to do 
so, or to determine comparable worth of all men’s and 
women’s jobs. As the court below pointed out in its 
opinion on rehearing, this case is not about comparable 
worth; this case is about discrimination on the basis of 
sex.

There can be a showing of discrimination in compensa­
tion on the basis of sex (or, for that matter, on the basis 
of race or national origin) without a showing of compar­
able worth and without evaluations of the jobs involved. 
Intentional discrimination, for example, could be shown 
in various ways not involving comparable worth, such 
as statements by the employer reflecting a belief that 
women are worth less than men. I f an employer were 
shown to have decided to pay $20,000 to fill a particular 
position but to have fixed the salary at $18,000 when a 
qualified black was chosen to fill the position, that would 
clearly be discrimination in compensation on the basis 
of race. It would equally be discrimination in compen­
sation on the basis of sex if  the decision to pay the lower 
salary were made because the position was to be filled by 
a woman. The fact that the job was the only one in the 
plant would not make the decision to pay the lower salary 
less discriminatory than if there were two jobs, one filled 
by a man at the higher salary and one by a woman at



11

the lower. See Roesel v. Joliet Wrought Washer Co., 596 
F.2d 183 (7th Cir. 1979).

The use of a system for fixing the compensation of 
women different from the system used for compensating 
men, with the inevitable lowering of women’s salaries as 
a result of that method, is discriminatory whether or not 
men and women occupy equal jobs. This Court so recog­
nized when it held, in City of Los Angeles v. Manhart, 
435 U.S. 702 (1978), that it was a violation of Title VII 
to lower the compensation of women by requiring them to 
pay more into a pension fund than was required of men. 
At no time did the Court or any of the parties find it 
necessary to discuss the question whether the men and 
women involved were occupying similar or different posi­
tions. The significant fact was that the system did “ not 
pass the simple test of whether the evidence shows treat­
ment of a person in a manner which but for that person’s 
sex would be different.’ ”  435 U.S. at 711.

There are other examples of discrimination against 
women in compensation which result from the discrim­
inatory nature of the system used to fix salaries. In 
Evans v. Central Piedmont Community College, 475 F. 
Supp. 114 (W.D.N.C. 1979), the court found discrimin­
ation against women as a class by the use of a system of 
“ process management” which in theory provided that 
women could supervise the work product of other em­
ployees without supervising the employees themselves. 
The court found that this was in fact a method of paying 
women as clericals for doing work which was in reality 
supervisory. See 475 F. Supp. at 119. In Christensen v. 
State of Iowa, 563 F.2d 353 (8th Cir. 1977), where the 
Eighth Circuit held insufficient a showing that the em­
ployer disregarded its own evaluations of male jobs but 
paid men higher wages to meet the prevailing rate, the 
court noted that a prima facie case of discrimination 
would have been established if the defendant had paid 
the prevailing rate to men, but less than the prevailing



12

rate to women. 563 F.2d at 355 n.5.2 In other words, the 
court recognized that the use of a system for fixing the 
salaries of women different from the system used for men 
could be discriminatory even if  the jobs involved were 
totally dissimilar.

I f an employer chooses to use an industrial evaluation to 
set salaries and then deliberately sets a lower scale for 
women than for men, that is clearly discrimination based 
on sex, whether or not the men’s jobs and the women’s 
jobs could be deemed equal for the purposes of the Equal 
Pay Act. That is what the plaintiffs alleged in IUE  v. 
Westing house, supra, and what the Third Circuit properly 
held they should be allowed to prove if  they can. Such a 
ruling does not, as plaintiffs suggest, require companies 
to engage in a comparable worth evaluation of dissimilar 
jobs. It merely requires them to refrain from using differ­
ent standards for men and women and from deliberately 
depressing the salaries of certain jobs because they are 
occupied by women. The fact is that many companies, like 
Westinghouse, do, for their own purposes, rate jobs. See, 
e.g., Kyriazi v. Western Elec. Co., 461 F. Supp. 894 
(D.N.J. 1978). I f a company which uses such a system 
knowingly sets the scale for jobs primarily held by women 
lower than that used for men, there is no reason why such 
intentional discrimination on the basis of sex should be any 
less a violation of Title VII than would be similar dispar­
ate treatment based on race or national origin.

By and large, discrimination in compensation with re­
lation to jobs which are not equivalent will involve proof 
of systemic discrimination, as the examples referred to 
above illustrate. Where a particular woman claims that 
she is underpaid because of her sex, it will usually be nec­
essary to show that a male paid a higher salary is in an 
equivalent position. This is also true where discrimination

2 The court regarded it as unnecessary to interpret the Bennett 
Amendment unless a prima facie case of discrimination was shown. 
It thus treated the Amendment as a defense, not a definition of dis­
crimination.



13

is alleged to be due to race. See the seminal case of 
Quarles V. Philip Morris, Inc., 279 F. Supp. 505, 509-510 
(E.D. Va. 1968), where, although finding systemic dis­
crimination against blacks as a class, the court found wage 
discrimination as to particular blacks by comparing their 
salaries with whites employed in equivalent positions. For 
the reasons discussed below, we do not believe that the 
Bennett Amendment necessarily injects, even into an indi­
vidual claim, the limitations of the Equal Pay Act. If an 
employer deliberately lowered the salary of a particular 
job because it was to be occupied by a woman, this would 
be discrimination based on sex. It would meet the simple 
test referred to Manhart, supra, of showing treatment of a 
woman in a manner which, except for her sex, would have 
been different. See Roesel v. Joliet Wrought Washer Co., 
supra.

It may also be possible to prove an individual claim in 
some other fashion. If male and female jobs, although dis­
similar for purposes of the Equal Pay Act, are neverthe­
less very close and the disparity in pay is very great, it 
could be a reasonable inference that at least some of the 
difference in salary is due to sex, and not to the difference 
in jobs. The test, however, would still be discrimination 
based on sex, not merely difference in pay. The burden of 
proof would be on the plaintiff to prove the discrimination 
by whatever means are available. It may be that plain­
tiffs would choose to offer an expert job evaluation in an 
endeavor to prove that the pay difference is attributable 
only to sex, just as plaintiffs and courts rely on statistics 
to assess other claims of discrimination. See Teamsters v. 
United States, 431 U.S. 324 (1977). But this would not 
impose a job evaluation system on employers. Job analyses 
are regularly used, even in Equal Pay cases, in an en­
deavor to establish that jobs are equivalent under the 
standards of the Equal Pay Act. See Laffey v. Northwest 
Airlines, Inc., 567 F.2d 429 (D.C. Cir. 1976), cert, denied, 
434 U.S. 1086 (1978); Wetzel v. Liberty Mutual Ins. Co., 
449 F. Supp. 397, 402 (W.D. Pa. 1978). The use of expert



evidence for such purpose does not run counter to the in­
tent of Congress when it limited the Equal Pay Act to 
equal jobs. The Equal Pay Act forbids the payment of 
lower salaries to men and women for equal work regard­
less of intent. What Congress rejected, when it established 
the equal work requirement under that Act, was the notion 
that jobs had to be evaluated to determine whether totally 
dissimilar jobs were of comparable worth. The fact that 
job evaluations may be used to prove discrimination un­
der Title VII does not undercut that position. The issue 
remains discrimination, either intentional or as a neces­
sary result of the disparate method by which salaries 
are fixed for men and women.

Realistically, however, except for instances of overt, 
intentional discrimination based on sex, proof of discrimi­
nation in compensation based on sex with respect to dis­
similar jobs will usually depend on proof of systemic dis­
parate treatment of men and women in the method by 
which salaries are fixed. There is no reason to attribute 
to Congress an intention to permit such systemic discrim­
ination against women which it would not permit against 
blacks.

Petitioner argues that it is not reasonable to attribute to 
Congress in 1965 an intent to impose on employers a 
standard of comparable worth which it rejected only a 
year before in the Equal Pay Act. Title VII does not, 
however, deal with comparable worth, but with discrimi­
nation. The Equal Pay Act, at the time it was passed, was 
recognized as being an act of limited scope, a “ first step” 
toward the adjustment of balance of pay for women. 109 
Cong. Rec. 9193 (1963) (remarks of Rep. Bolton). 
Title VII, on the other hand, was part of a broad attack on 
discrimination generally as a factor in American life, fo­
cused originally on discrimination based on race and na­
tional origin. When, therefore, Congress added sex to the 
prohibited bases for discrimination, it knew that it was 
prohibiting discrimination against women in all the ways 
that it was prohibiting discrimination against minori­
ties. The same kind of discrimination against women

14



15

as would constitute discrimination against minorities, 
whether in compensation or otherwise, is a violation of 
Title VII.

B. The Bennett Amendment Does Not Limit the Defi­
nition of Discrimination but Merely Incorporates 
the Defenses of the Equal Pay Act

1. The language of the statute. As discussed above, 
there can be discrimination in compensation based on sex 
even though women work at jobs which are not equal to 
those occupied by males. Such practices would clearly fall 
within the interdiction of Section 703(a) of Title VII, 
which makes it an unlawful employment practice for an 
employer to discriminate against any individual with 
respect to compensation, terms or conditions of employ­
ment, or to segregate, limit or classify its employees in 
any way which would affect their status as employees. The 
language of Section 703(a) indicates as clearly as lan­
guage can that Congress intended to ‘ ‘prohibit 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 
Transp. Co., 424 U.S. 747, 763 (1976).

The Bennett Amendment, Section 703(h) of Title VII, 
is the last part of an entire section dealing with defenses 
to a charge of discrimination. It would be a strange read­
ing of a statute to hold that one part of a section relating 
to defenses limits the broad definition of discrimination 
defined in Section 703(a), particularly since Section 
703(h) relates to only one of the protected classes speci­
fied in Section 703(a).

The language of the Bennett Amendment offers no 
support for this strange interpretation. It provides:

It shall not be an unlawful employment practice un­
der this Title for any employer to differentiate upon 
the basis of sex in determining the amount of the



16

wages or compensation paid or to be paid to em­
ployees of such employer if  such differentiation is 
authorized by the provisions of Section 206(d) of 
Title 29.3

The fact that the Equal Pay Act forbids pay differentials 
for equal work does not mean that it “ authorizes” dis­
crimination for unequal work, any more than the fact 
that it forbids pay differentials means that it “ author­
izes” discrimination in the classification or conditions of 
employment. The Equal Pay Act simply does not reach 
such discrimination; it does not authorize it. When Title 
VII broadly outlaws all forms of discrimination, except 
as authorized by the Equal Pay Act, it obviously refers 
to the differences which the Equal Pay Act does author­
ize: the four defenses to unequal payment for equal 
work.

The ordinary dictionary meaning of the term “ au­
thorize” is to establish or approve by authority.4 Under 
the usual meaning of the term, a wage differential can­
not be “ authorized” by the Equal Pay Act unless it is 
specifically approved by the Equal Pay Act, i.e., unless 
it comes within one of the four affirmative defenses 
recognized by the Equal Pay Act.

3 Section 206(d) of Title 29, the Equal Pay Act, provides in 
relevant part:

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 establish­
ment at a rate less than the opposite sex in such establish­
ment 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.

4 W ebster’s Second International Dictionary 186 (1952); 
Random House Dictionary 100 (1967).



17

This is the sense in which Congress has repeatedly 
used the term “ authorized” . 28 U.S.C. § 1343 provides 
that the district courts shall have original jurisdiction 
of “ any civil action authorized by law” ; plainly, some 
specific law must provide the basis of a cause of action 
before the test of § 1343 will be satisfied. Howell v. 
Cataldi, 464 F.2d 272, 274-82 (3d Cir. 1972). 18 U.S.C. 
§ 1905 prohibits the disclosure by Federal officials of 
certain information “ to any extent not authorized by 
law” ; plainly, this contemplates that some specific law 
must approve disclosures of such information if they are 
to be lawful. W  estinghouse Elec. Corp. v. Nuclear Reg­
ulatory Comm’n, 555 F.2d 82, 94 (3d Cir. 1977). To 
extend the term “ authorized” to include any claim or 
conduct not prohibited by another statute would radically 
alter the established meaning of these provisions. 28 
U.S.C. § 1343 would then allow all civil actions not ex­
pressly prohibited by Congress, and 18 U.S.C. § 1905 
would then allow all disclosures of information which 
were not expressly prohibited. Clearly, such a construc­
tion would be impermissible.5 6

2. The legislative history. As discussed above, dis­
crimination against women in compensation in relation 
to jobs which are not similar will, in most instances, in­
volve some form of systemic discrimination. It is well 
to keep this fact in mind in considering the legislative 
history of the Bennett Amendment because, at the time 
of the enactment of the Civil Rights Act of 1964, Con­
gress, while endeavoring to eradicate discrimination in 
employment as a factor in American life, was not really 
aware of the degree to which discrimination was em­
bodied in systemic, institutionalized form. As the House

5 Cf. Chandler V. Roudebush, 425 U.S. 840, 848 (1976):

. . . the plain, obvious and rational meaning of a statute is 
always to be preferred to any curious, narrow, hidden sense 
that nothing but the exigency of a hard case and the in­
genuity and study of an acute and powerful intellect would 
discover.



18

Committee Report on the proposed 1972 amendments 
stated (H.R. Rep. No. 92-238, 92d Cong., 1st Sess, 8 
(1971)) :

During the preparation and presentation of Title 
VII of the Civil Rights Act of 1964, employment dis­
crimination tended to be viewed as a series of isolated 
and distinguishable events, due, for the most part, 
to ill-will on the part of some identifiable individ­
ual or organization.

*  *  *

Employment discrimination, as we know today, is 
a far more complex and pervasive phenomenon. 
Experts familiar with the subject generally describe 
the problem in terms of “ systems”  and “ effects” 
rather than intentional wrongs.

*  *  *

It is increasingly obvious that the entire area of 
employment discrimination is one whose resolution 
requires not only expert assistance but also the tech­
nical perception that a problem exists in the first 
place, and that the system complained of is unlawful.

Therefore (as we discuss below), while the statements 
made by various Congressmen in 1965 do not, in and of 
themselves, support the view of the Bennett Amendment 
suggested by the petitioner, those statements have even 
less significance in relation to claims of systemic dis­
crimination against women with respect to compensation. 
At most they mean only that, where women claim un­
equal pay for equal work, the standards of the Equal 
Pay Act apply.

The legislative history is fully covered in part D of 
the majority opinion of the Third Circuit in IUE  v. 
Westinghouse, supra, 631 F.2d at 1101-05, and extensive 
discussion here seems unnecessary. The remarks on 
which petitioners rely are so equivocal that they do not 
serve to overcome the normal reading of Section 703 
(h) as relating to defenses, rather than as qualifying 
the definition of discrimination in Section 703(a). Sena-



19

tor Bennett offered his amendment as a “ technical ob­
jection” to avoid “ possible conflict between Title VII 
and the Equal Pay Act.” 110 C o n g . Rep. 13647 (1964). 
It is difficult to believe that a drastic limitation on the 
definition of discrimination, which would have the effect 
of allowing discrimination against women which would 
not be allowed against minorities, would have been char­
acterized as a technical objection. It is much more rea­
sonable to accept, as the court below and the Third Cir­
cuit did, the remarks of Senator Dirksen that:

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 Stand­
ards Act carries out certain exceptions. All that the 
pending amendment does is recognize those excep­
tions, that are carried in the basic act.6

Petitioner relies on the remarks of Representative Cel- 
ler in the House explaining the effect of the Bennett 
Amendment. He said (110 C o n g . R e c . 15896 (1964)) 
that the amendment

provides that compliance with the Fair Labor Stand­
ards Act as amended satisfies the requirement of the 
title barring discrimination because of sex— section 
703(b) [sic].

The statement cannot be taken as accurate since com­
pliance with the Equal Pay Act would not satisfy the 
requirements of Title VII with respect to all claims of 
sex discrimination, including non-monetary claims. It 
probably reflects the general thinking of the time that 
discrimination was based on individual acts. In any

6 The pre-Bennett Amendment question and answer of April 8, 
1964 discussed in the IUE opinion shows that Congress understood 
that Title VII was broader than the Equal Pay Act. The answer 
stating that the standards in the Equal Pay Act for determining 
discrimination as to wages were applicable “to the comparable 
situation under Title V II,” 110 Cong. Rec. 7217 (1964), relates to 
situations covered by both acts, i.e., claims of unequal pay for equal 
work.



20

event, it is certainly not the kind of clear expression of 
legislative intent which would serve to overcome the plain 
meaning of the language used and its position in the 
statute.

Interpreting the Bennett Amendment as incorporating 
into Title VII the defenses of the Equal Pay Act does 
not render the amendment superfluous. Although Section 
703 contained exceptions similar to three of the four 
exceptions of the Equal Pay Act, no one could have been 
sure, at the time of the enactment of Title VII, that the 
similar provisions in the two acts would be construed in 
the same manner. There is some difference in the word­
ing of two of the exceptions, since Section 703 refers to 
“ bona fide” seniority and merit systems while the Equal 
Pay Act refers simply to seniority and merit systems. 
Moreover, one of the defenses available under the Equal 
Pay Act, permitting a differential “ based on any other 
factor other than sex”  is not otherwise included in Sec­
tion 703. Just seven weeks prior to passage of the Ben­
nett Amendment, the Wage-Hour Administrator had is­
sued an extensive elaboration of Equal Pay standards 
and defenses, including a statement of factors which 
would establish this defense. 29 Fed. Reg. 5548 (April 
24, 1964). As shown by the legislative history of the 
Equal Pay Act discussed in Coming Glass Works v. 
Brennan, 417 U.S. 188 (1974), Congress, when it passed 
the Equal Pay Act, was aware that some companies 
were using job evaluation systems which might fairly 
account for differences in pay for jobs that on the sur­
face appeared to require equal skills. If such evalua­
tions were truly based on a factor other than sex, such 
differences in pay would be authorized under the Equal 
Pay Act. For example, the court in Hodgson v. Robert 
Hall Clothes, 473 F.2d 589, 593-596 (3rd Cir.), cert, 
denied, 414 U.S. 866 (1973), concluded that economic 
benefit to the employer was a factor other than sex jus­
tifying differences in pay. It is to that kind of defense 
that the Bennett Amendment relates. Since the prohibi­



21

tion on discrimination based on sex came late in the 
development of Title VII, Senator Bennett, as he ex­
plained, proposed to avoid a “ possible conflict” . There 
was no claim that the drafter of the Amendment, which 
was offered after cloture had been imposed, had explored 
in any depth the areas of possible conflict. Hence the 
existence of some overlap in the various parts of Section 
703(h), all relating to defenses, does not militate against 
the interpretation of the Bennett Amendment as relat­
ing to defenses.

3. The administrative interpretation. The early EEOC 
guidelines, and the statements of its general counsel on 
which petitioner relies (Pet. Br. 89-94), do not under­
mine the natural reading of the Bennett Amendment as 
dealing with defenses to a prima facie showing of dis­
crimination, rather than as limiting the definition of 
discrimination in Section 703(a). The 1965 Guidelines 
on Discrimination Because of Sex (Pet. Br. 80-81) did 
recognize the need “ to avoid conflicting interpretations 
or requirements with respect to situations to which 
both statutes are applicable.”  Certainly, therefore, the 
Pay Act standards as to what constitutes equal pay for 
equal work were then and are now properly held ap­
plicable to determining that issue in a Title VII con­
text. The question of what constitutes equal work is, in 
many situations, subject to different interpretations, as 
various decisions show. See, e.g., Corning Glass Works 
V. Brennan, supra; Hodgson v. Robert Hall Clothes, 
supra. These decisions are properly deemed incorporated 
into Title VII where claims of unequal pay for equal 
work are asserted. That is what we believe this Court 
meant by its reference to the Equal Pay Act in General 
Elec. Co. v. Gilbert, 429 U.S. 125, 144 (1976).

This is, however, a far cry from saying that, because 
the equal work standard developed under the Equal Pay 
Act should be used in determining such claims in Title 
VII cases, no other form of discrimination can be shown. 
Nothing in any of the guidelines or opinions under Title



22

VII on which petitioner relies can fairly be read as a 
determination that a system of disparate treatment of 
men and women with respect to compensation, or inten­
tional discrimination on the basis of sex, was not with­
in the coverage of Section 703(a) of Title VII. The 
Commission recognized from the start that the statutory 
ban on discrimination in compensation because of sex 
was coextensive with that of the other prohibitions in 
Section 703(a), and that Title VII was not limited to 
those employees covered by the Fair Labor Standards 
Act. If the Bennett Amendment were held to have per­
mitted any discrimination not expressly forbidden by the 
Equal Pay Act, then, logically, it should also be said to 
have authorized unequal payment for equal work in es­
tablishments excepted from the Equal Pay Act. The 
statute has not been and cannot fairly be so read. The 
fact is that, when the Commission began to be con­
fronted with systemic discrimination, such as situations 
where different systems were used for the fixing of the 
salaries of men and women, it did take the position that 
proof of such allegations would establish violations of 
Title VII. This was true under the 1965 guidelines, 
before they were amended in 1972. Case No. 66-5762 
(decided June 20, 1968), 1973 CCH EEOC Decisions 
If 6001 n.22; Decision No. 70-112 (Sept. 5, 1969), 1973 
CCH EEOC Decisions H6108; Decision No. 71-2629 
(June 25, 1971), 1973 CCH EEOC Decisions IT 6300.

4. Judicial decisions. The only two cases which have 
examined in depth whether the Bennett Amendment 
limits the definition of discrimination, so as to permit 
employers intentionally to set lower compensation rates 
for women because of their sex, are the decision below 
and the decision of the Third Circuit in IUE v. Westing - 
house, supra. In Laffey v. Northwest Airlines, Inc., 567 
F.2d 429, 446 (D.C. Cir. 1976), cert, denied, 434 U.S. 
1086 (1978), the court indicated its view that “ a sex- 
predicated wage differential is immune from attack under 
Title VII only if it comes within one of the four enu­



23

merated exceptions to the Equal Pay Act” , but the court 
found it unnecessary to decide the Title VII compensa­
tion claim since it found a violation of the Equal Pay 
Act.

The cases on which petitioner relies holding, in the 
words of Ammons V. Zia Co., 448 F.2d 117, 120 (10th Cir. 
1971), that “ to establish a case of discrimination under 
Title VII, one must prove a differential in pay based 
on sex for performing ‘equal’ work” are not really con­
trary to the position of the court below and the Third 
Circuit. The courts in all the cases relied on were deal­
ing with the sufficiency of proof, not with the more gen­
eral question of whether there ever can be any actionable 
discrimination in compensation (including intentional 
lowering of salary because of sex) without a showing 
that men and women occupy equal jobs. As noted above, 
in many cases— particularly those involving individual, 
as distinct from systemic, claims— an allegation of dis­
crimination in compensation will require a showing that 
there has been unequal pay for equal work under the 
standards of the Equal Pay Act. That was the claim in 
Ammons which the court found not proved. There was 
no attempt in Ammons, or in most of the other cases 
relied upon by petitioner, to prove intentional sex dis­
crimination, or different methods used in the fixing of 
men’s and women’s salaries, or even that the dissimilar­
ity in pay with respect to similar albeit unequal jobs 
was so gross as to be attributable, at least in part, only 
to the fact that the jobs were filled by women. In Stastny 
V. Southern Bell Tel Co., 628 F.2d 267 (4th Cir. 1980), 
the court (after ruling that the case had been improp­
erly treated as a class action) found that the complain­
ants, although improperly denied promotion, had not 
shown that their individual salaries were unequal to 
those of men in similar positions. Since the court found 
that state-wide statistical evidence was not properly ap­
plicable to the particular plant at issue (628 F.2d at 
279), it had no occasion to consider whether claims that



24

women as a class were discriminated against in salaries 
could be proved by comparison of average female earn­
ings with average male earnings within broad salary 
classifications. Cf. Arkansas Educ. Ass’n v. Board of 
Educ., 446 F.2d 763 (8th Cir. 1971), where the court 
found relevant to a claim of salary discrimination based 
on race the fact that no black school teacher had been 
awarded a salary as high as a white school teacher. In 
Lemons v. City of Denver, 620 F.2d 228 (10th Cir. 1980), 
cert, denied, 49 U.S.L.W. 3250 (Oct. 6, 1980), the Tenth 
Circuit held that plaintiffs had not proved sex discrimi­
nation by an attempted showing of comparable worth 
of totally dissimilar jobs, where the district court spe­
cifically found that men and women were treated in the 
same fashion. This is certainly not a holding that, where 
men and women are treated differently, there cannot be 
discrimination merely because they work at different 
jobs. As discussed above, the implications of this Court’s 
decision in City of Los Angeles V. Manhart are clearly 
to the contrary.

In sum, nothing in the legislative history or adminis­
trative or judicial interpretations of the Bennett Amend­
ment lends support to the position of petitioner that proof 
that men and women perform equal work is a necessary 
ingredient of any claim of sex discrimination in com­
pensation under Title VII. All that this Court is called 
upon to decide in this case is that to state a cause of 
action under Title VII, a claimant need not allege that 
men and women occupy equal jobs. Whether, and how, 
where the jobs are unequal, the claimants can prove their 
claim of sex discrimination, are issues not presently be­
fore this Court. It is enough to recognize that proof of 
such allegations need not inevitably, as petitioner claims, 
rest on proof of comparable worth; that there are other 
means of showing intentional or systemic treatment of 
men and women with respect to compensation. Such 
disparate treatment of women is discrimination, as would



25

be equivalent disparate treatment of racial and ethnic 
minorities. Allegations of such discrimination therefore 
state a claim under Title VII.

CONCLUSION

For the reasons stated, the judgment of the court be­
low should be affirmed.

Respectfully submitted,

Jo h n  B. Jo n e s , Jr .
N o r m a n  R edlich

Co-Chairmen
W il l ia m  L. R o bin so n  
N o r m a n  J. C h a c h k in  * 
B eatrice  R osenberg  
R ich ard  T . Se y m o u r  

Lawyers’ Committee for 
Civil Rights Under Law 

733 - 15th Street, N.W. 
Washington, D.C. 20005 
(202) 628-6700

Attorneys for Amici Curiae

January 28, 1981
* Counsel of Record