COMPARABLE WORK, COMPARABLE
PAY: RETHINKING THE DECISION OF
THE NINTH CIRCUIT COURT OF
APPEALS IN AMERICAN
FEDERA TION OF S TA TE, COUNTY, AND
MUNICIPAL EMPLOYEES v. WASHINGTON*
INTRODUCTION
Wage discrimination is a reality for American women.' Women
* © 1986 Amelia K. Duroska
1. See Treinian, Hartmann & Roos, Assessing Pay Discrimination Using National Data, in
COMPARABLE WORTH AND WAGE DISCRIMINATION 137 (H. Remick ed. 1984) (presenting research data confirming wage differentials between men and women). According to 1970 census figures, the mean salary in a male-dominated job category (90% male) was $7,985, while
the mean salary in a female-dominated job category (70% or more female) was $4,564. Id. at
142. Workers in female-dominated jobs, therefore, receive 57% of the wages in male-dominatedjobs. Id. at 147. If, however, the percentage of female workers in the job category were
not considered in determining the compensation, women would receive 83% of the male
salaries. Id. The other differences in pay would be due to the different characteristics of the
job, including the working conditions, physical demands, and motor skills. Id. Approximately
40% of the earnings gap is attributable to differences in occupational characteristics, while
60% reflects the manner in which the percentage of female workers in ajob affects the salary.
Id. Discrimination is a key factor accounting for the 60% wage differential. Id. at 148. In
"mixed" occupations, those that are 10 to 70% female, the pay averages 86% as much as the
pay in male-dominated occupations, but the jobs would pay an average of 97% as much if
rewarded in the same manner as male-dominated occupations. Id. at 147-48. Taken together,
79% of the earnings gap between male and mixed job classifications is attributable to differences in the rate of return on job characteristics and not to the characteristics themselves. Id.
Consequently, only one-third of the sex composition effect can be explained without invoking
wage discrimination. Id. at 147; see also E. JOHANSEN, COMPARABLE WORTH: THE MYTH AND
THE MOVEMENT 11-12 (1984) (citing National Research Council of the National Academy of
Sciences Study concluding substantial differences in earnings of men and women).
Statistics illustrate that men still receive higher pay than women when performing the same
job. Men earn an average salary of $15,566 for being a typist, while female typists only earn
an average salary of $10,615. Note, Comparable Worth: Its Status in the Nation and Minnesota, 10
WM. MITCHELL L. REV. 559, 559 n.3 (1984). Similarly, the pay difference between male and
female computer specialists is $24,563 and $16,437, respectively. Id.; see Quinn, Comparable
Pay for Comparable Work, NEWSWEEK, Jan. 16, 1984, at 66 (arguing that women receive less
compensation than men despite adjustments for experience and education). See generally WoMEN'S LEGAL DEFENSE FUND, IT PAYS TO BE A MAN: AN OVERVIEW OF COMPARABLE WORTH
I
(1985) (reporting pay differential between men and women). This pay difference results in a
two-income family actually receiving the equivalent of one and one-half paychecks. Id.; see also
Remick, Prefaceto COMPARABLE WORTH AND WAGE DISCRIMINATION at ix (H. Remick ed. 1984)
(emphasizing wage discrimination's debilitating effect). Considering the wage discrimination
245
246
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:245
receive approximately sixty percent of the compensation men regularly earn. 2 Even after adjustment for differences in seniority, experience, and working conditions, women receive lower salaries than
men.8 Although the differential can be found in all occupations, the
wage disparity is particularly noticeable in sex-segregated occupations: occupations where seventy percent or more of the occupants
are of one sex. 4 ,
Contemporary wage disparities reflect a historic inequality accorded jobs that men and women perform. 5 This inequality emanates from a deeply-rooted value system that assigns greater respect
and prestige to tasks that men perform. 6 The noted anthropologist
that women face, it is not coincidental that women head one-third of the American families
living below the poverty level. Id.
2.
See WOMEN'S LEGAL DEFENSE FUND, IT PAYS TO BE A MAN: AN OVERVIEW OF COMPARA-
WORTH 2 (1985) (citing evidence of sex-based wage discrimination). The following statistics illustrate how the sex-segregated work force produces lower pay for women:
Average
Percentage of
Women Employed
Annual Salary
Occupation
BLE
Nurse
Pharmacist
Secretary
Truck Driver
Seamstress
Plumber
Registered Nurse
Airline Pilot
Private Household Worker
Janitor
Child Care Worker
Mail Carrier
Waiter/Waitress
Butcher/Meat Cutter
Retail Sales Clerk
Sales Representative
$17,000
25,000
12,000
16,300
8,200
21,000
17,300
27,600
5,600
11,400
7,900
21,100
7,800
16,400
9,300
15,000
96%
16%
99%
2%
97%
0%
96%
0%
95%
15%
87%
12%
85%
7%
60%
12%
Id.
3. See Quinn, supra note 1, at 66 (stating that differences between men's and women's
salaries are not based only on "legitimate" justifications).
4. See Treiman, Hartmann & Roos, supra note 1, at 148 (using regression analysis to
prove sex-based wage discrimination).
5. See Feldberg, Comparable Worth: Toward Theory and Practicein the United States, 10 SIGNS:
JOURNAL OF WOMEN IN CULTURE AND SOCIETY 311, 313 (1984) (arguing greater value to men's,
but not women's, work). Despite the economic or social importance of tasks performed, society regularly undervalues the contribution of female labor. Id. For example, in 18th century
America, the physical labor of women contributed to the survival of the settlers, yet the newlyfounded colonies provided less land for a female servant than for a male servant. Id. at 314.
Similarly, English coal company owners hired women instead of buying horses to pull coal
carts because employing women cost less than stabling horses. Id. In the 19th century, unions perpetuated this inequality in the work force by initially excluding women from membership. Id. at 315.
6. See id. at 313 (asserting male and female work, both expressions of gender, are
ranked in value); see also Blumrosen, Wage Discrimination,Job Segregation and Women Workers, 6
WOMEN'S RTs. L. REP. 19, 26 (1980) (contending that greater status is accorded male jobs).
1986]
COMPARABLE WORK, COMPARABLE PAY
247
Margaret Mead discovered that in cultures where males performed
tasks traditionally performed by women in Western society, the
male jobs were still considered more valuable. 7 For example, in cultures where men wove cloth while women fished, society attributed
8
greater power, status, and rewards to the male weaving. ,
The concept of comparable worth emerged in response to this
pervasive problem of inequality of compensation based on sex. 9
Comparable worth refers to an equal pay system for dissimilar jobs
that are of equal value to the employer. 10 The term comparable
worth also is used interchangeably to describe a theory of liability in
sex-based wage discrimination cases as well as the job evaluations
often used to establish the basis of a plaintiff's case. 11
The theory of comparable worth is a necessary bridge for eliminating the wage disparity between men and women. 12 In many instances, men and women do not perform the exact samejob, though
Even when women perform the same job, differences in traditionally male and female job
titles illustrate the superior authority and respect accorded men. Id. at 23. These job titles
exemplify the male/female distinction: chef/cook, maitre d'/hostess, administrative assistant/secretary. Id. at 23-24.
7. Margaret Mead, Prehistoryand the Woman, BARNARD C. BULL., Apr. 30, 1969, Supp. at
7, quoted in K. MILLETr, SEXUAL PoLrrxcs 224 (1970). Even where men dressed dolls for reli-
gious ceremonies, certain primitive societies accorded greater value to this task than to other
tasks performed by women. Id. These cultures regarded a man's work as a higher achievement than a woman's work. Id.
8. Id. Two equally compelling arguments exist for according intrinsically greater value
to weaving or fishing: "weaving is a more important job because it takes skill and training to
spin cloth and cloth is essential to survival so clothes, sheets, curtains and other items can be
sown" or "fishing is more important than weaving because without skilled and able people to
fish, our food supply, essential to survival, would be extinguished." Id. Cross-cultural studies, such as this, illustrate that it is possible to think flexibly about our culture, and specifically
about American society's rank ordering ofjob values. Blumrosen, supra note 6, at 26.
9. See E. JOHANSEN, supra note 1, at 14. During the peace treaty negotiations after
World War I that established the International Labor Organization, participants used the
words "equal pay for equal work." Id. Since approximately 1975, the women's movement in
the United States revived the idea of pay equity, but universal acceptance of the comparable
worth theory has been slow. Id.
10. See THE BUREAU OF NAT'L AFFAIRS, INC., PAY Eqorl"Y AND COMPARABLE WORTH 1
(1984) (defining comparable worth as pay system compensating equal skill and responsibility)
[hereinafter THE BUREAU OF NAT'L AFFAIRS, INC.]; see also Remick, supra note 1, at ix (charac-
terizing comparable worth as equal pay for dissimilar work of comparable value).
11. See Warren & Boone, AFSCME v. State of Washington: Title VII as a Winning Strategy
to End Wage Discrimination,8 WOMEN'S RTS. L. REP. 17, 21 (1984) (clarifying use of term "com-
parable worth" in litigation). Comparable worth is a popular term and more accurately might
be relabeled as a theory to combat sex-based wage discrimination. Id. at 18-19. But see Livernash, COMPARABLE WORTH: ISSUES AND ALTERNATIVES 8 (E.R. Livernash ed. 1981) (asserting
impossibility of operationally defining comparable worth). The theory has also been termed
"controversial." See County of Washington v. Gunther, 452 U.S. 161, 166 (1981) (specifying
this decision as not endorsing comparable worth); E.JOHANSEN, supra note 1, at 11 (describing
controversial nature of comparable worth).
12. See Women's Legal Defense Fund, supra note 1, at 1-3 (arguing that comparable
worth combats wage discrimination).
248
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:245
the employer values equally the jobs that they perform.' 3 The clustering of women in sex-segregated job classifications limits women's
salaries. 14 Job segregation intrinsically is connected to wage discrimination because patriarchal influences that restrict women's
choices ofjobs also depress the wages paid in those jobs. 15 Analyzing wage discrimination outside the context of job segregation,
therefore, obscures the larger problem of sex discrimination in
employment.16
Job segregation by sex warrants the use of a comparable worth
theory in order for women to achieve wage equality.' 7 Without recognizing comparable worth, wage discrimination will continue to be
viewed as simply a matter of equality of job access for women. 18
Although job access that ensures that women enter traditionally
male fields is crucial to sexual equality, the root of sex-based wage
discrimination lies in the undervaluation of women and women's
work. 19
13. See Feldberg, supra note 5, at 313 (stating that in most societies, men do "men's
work" and women do "women's work").
14. See Blumrosen, supra note 6, at 24 (noting that workers in sex-segregated jobs earn
discriminatorily depressed wages). Sex segregation has historical precedent in the United
States. Id. at 22. In the 19th century, New England textile mills segregated young women
into certain jobs. Id. Census Bureau statistics from 1900-1970 confirm that most women
work in predominantly female occupations. Id. The only exception was during periods of war
when an abundance of male workers were not available. Id. Protectionist legislation exacerbated this trend by prohibiting women from certain occupations, barring them from certain
activities, or requiring additional employee benefits from employers who employed women.
Id. The Supreme Court upheld this form of segregation. See Muller v. Oregon, 208 U.S. 412,
423 (1908) (prohibiting overtime work for women).
15. See England, Socioeconomic Explanations ofJob Segregation, in COMPARABLE WORTH AND
WAGE DISCRIMINATION 28, 40-41 (H. Remick ed. 1984) (citing patriarchy as one theory to
explain occupational sex segregation). To highlight the sex-segregated nature of the work
force, in 1970, for example, if the number of men and women in each job category were to
reflect the balance between the sexes in the larger labor force, 70% of either men or women
would have to exchangejobs. Id. at 28. The five job categories where women are most frequently concentrated continue to reflect female stereotypical roles. See Blumrosen, supra note
6, at 23. These jobs include: secretary/stenographer, household workers, elementary school
teachers, bookkeepers, and waitresses. Id. (arguing that job segregation is connected to sexrole stereotyping).
16. See Mann, Pay Equity in the Courts: Myth v. Reality, 8 WOMEN'S RTS. L. REP. 7 (1984)
(contending equity in pay must be viewed within larger context). Examining pay equity within
the context of systemic sex discrimination is necessary in order to overcome the presumption
that pay equity arbitrarily and dangerously manipulates the market. Id.
17. See American Fed'n of State, County, & Mun. Employees v. Washington, 578 F.
Supp. 846, 870 (W.D. Wash. 1983) (using comparable worth theory to find intentional sexbased wage discrimination for plaintiffs in female-dominated jobs), rev'd, 770 F.2d 1401 (9th
Cir. 1985).
18. See American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d
1401, 1407 (9th Cir. 1985) (holding no liability for wage discrimination because defendant
did not restrict women's entry to otherjobs); Christensen v. Iowa, 563 F.2d 353, 357 (8th Cir.
1977) (rejecting claim of sex discrimination in compensation because all of defendant's jobs
were open to both sexes).
19. See supra notes 5-6 and accompanying text (arguing that less power, status, and authority is accorded women's work).
1986]
COMPARABLE WORK, COMPARABLE PAY
249
This Note encourages the legal community and the public to rethink the basis of wage discrimination and to adopt the comparable
worth theory as a strategy to combat that discrimination. Currently,
courts have access to the necessary precedential and statutory legal
tools to enable them to grant relief to plaintiffs denied fair compensation relative to the value of their work. Courts possess the statutory authority to use the comparable worth theory under the Equal
21
Pay Act (EPA) 20 and Title VII of the 1964 Civil Rights Act (Act).
This article analyzes both the disparate treatment and disparate impact theories 22 that courts use in Title VII cases and the effect of
each theory on the future of comparable worth. The Note concludes that courts have not used these tools effectively.
Focusing on a recent comparable worth case, this Note examines
the decision of the United States Court of Appeals for the Ninth
Circuit in American Federation of State, County, and Municipal Employees
25
v. Vashington23 (AFSCME II). AFSCME 11 reversed 2 4 the landmark
district court decision that granted injunctive relief and back pay for
a plaintiff class that alleged sex-based wage discrimination. 2 6 The
court of appeals erred in its analysis in AFSCME 11 in eliminating the
use of the disparate impact theory, in holding that a prima facie case
of discrimination was not established under the disparate treatment
theory, and in accepting the market economy defense.
Section I of this Note addresses legislative responses to the problem of sex discrimination in employment compensation, specifically
focusing on the Equal Pay Act of 196327 and Title VII of the 1964
Civil Rights Act.2 8 Section II sets forth the Ninth Circuit's opinion
in AFSCME 1I. Section III analyzes the Ninth Circuit's holding in
20. 29 U.S.C. § 206(d)(1) (1982) (establishing legal requirement of equal pay for equal
work).
21. 42 U.S.C. § 2000e-2(a) (1982) (prohibiting employment discrimination on basis of
sex).
22. See infra notes 61-79 and accompanying text (explaining disparate treatment and disparate impact theories).
23. 770 F.2d 1401 (9th Cir. 1985).
24. See id. at 1408 (finding no employer liability for sex-based wage discrimination). The
parties recently reached an out-of-court settlement, effective April 1, 1986, whereby salary
increases will be granted to increase wages in the female-dominated job categories to the level
of comparable worth assessments. SETrLEMENT AGREEMENT in AFSCME v. Washington, (Dec.
1985) at 5. Full comparability of wages is to be achieved by July 1, 1992. Id.
25.
See THE BUREAU OF NAT'L AFFAIRS, INC., supra note 10, at 3 (citing AFSCME I as
landmark decision for comparable worth); Pay Equity: The Battle Heats Up, Ms., Nov. 1985, at
19 (recognizing precedential value of district court's opinion).
26. American Fed'n of State, County, & Mun. Employees v. Washington, 578 F. Supp.
846, 871 (W.D. Wash. 1983) (establishing employer liability under comparable worth theory),
ael'd, 770 F.2d 1401 (9th Cir. 1985).
27. 29 U.S.C. § 206(d)(1) (1982).
28. 42 U.S.C. § 2000e-2(a) (1982).
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[Vol. 36:245
AFSCME I. This section illustrates how the court's reasoning in its
rejection of the comparable worth claim could have been used as
reasoning to uphold the claim. In conclusion, the Note suggests
that courts use accepted jurisprudential theories to support claims
for comparable worth.
I.
LEGISLATIVE RESPONSES TO WAGE DISCRIMINATION
A.
1.
The Equal Pay Act: A Beginning
Statutoryframework
Common sense, women's personal experiences, and statistics all
supported the claim that women were underpaid both when women
performed the same job as men and when they performed different
ones. By 1963, the general public's perception of this inequity became so acute that Congress responded with the first significant
piece of legislation prohibiting sex-based wage discrimination. 29
The Equal Pay Act (EPA),3 0 which was signed into law on June 10,
1963,31 requires employers to pay equal compensation to employees, regardless of their sex, when they perform equal work.32 The
EPA's primary purpose is to perpetuate a policy that the National
War Labor Board began during World War II providing equal pay
for equal work."3 The EPA's first section3 4 prohibits employers
29. See generally W. FOGEL, THE EQUAL PAY ACT: IMPLICATIONS FOR COMPARABLE WORTH
8-22 (1984) (stating that one reason for Act's passage was public's belief that women were
underpaid).
30. 29 U.S.C. § 206(d)(1) (1982) states in pertinent 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 establishment at
a rate less than the rate at which he pays wages to employees of the opposite sex in
such establishment for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. Provided that an
employer who is paying a wage rate differential in violation of this subsection shall
not, in order to comply with the provisions of this subsection, reduce the wage rate
of any employee.
Id.
31. See Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (1982) (prohibiting wage differentials when employees perform equal work); H.R. REP. No. 309, 88th Cong., 1st Sess. 1, reprinted in 1963 U.S. CODE CONG. & ADMIN. NEWS 687, 687. The Truman Administration
originally introduced the Equal Pay Act, but it took the support of the two subsequent presidents for the Equal Pay Act (EPA) to become public law. Id. The EPA was enacted as an
amendment to the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-216 (1982) which
regulates minimum wages and hours for workers. Id. at 688. Discrimination in pay on the
basis of sex is now one of the prohibitions of the Fair Labor Standards Act. Id.
32. See id. (promulgating criteria and conditions requiring equal pay); see also W. FOGEL,
supra note 29, at 25 (citing elements of EPA).
33. See H.R. REP. No. 309, 88th Cong., Ist Sess. 1, reprintedin 1963 U.S. CODE CONG. &
1986]
COMPARABLE WORK, COMPARABLE PAY
251
within the same establishment from paying a discriminatory wage
based on sex, when both employees perform work that requires
"equal skill, effort, and responsibility, and which is performed under
similar working conditions." 3 5 The second section includes four affirmative defenses an employer may use to rebut a charge of discrimination. 3 6 A pay differential can be defended on the following
grounds: a seniority system; a merit system; a system that measures
earnings by quantity or quality3 7of production; or a differential based
on any factor other than sex.
2. Legislative history
As proposed by the Kennedy Administration, the original language of the EPA called for equal compensation for "comparable"
work.3 8 The House Committee on Education and Labor, however,
deleted the word "comparable" and replaced it with "equal" during
a mark-up session.3 9 Because it restricted enforcement to jobs that
were virtually identical, this significant change narrowed the scope
40
and coverage of the legislation.
ADMIN. NEws 687, 687 (enunciating "equal pay for equal work" philosophy that War Labor
Board enforced during World War II).
34. 29 U.S.C. § 206(d)(1) (1982). In its decision in County of Washington v. Gunther,
452 U.S. 161 (1981), the United States Supreme Court interpreted the EPA as existing in two
sections. Id. at 169; see infra notes 80-99 and accompanying text (explaining connection between first half of EPA, Title VII, and comparable worth theory).
35. 29 U.S.C. § 206(d)(1) (1982). But see W. FOGEL, supra note 29, at 1-2 (1984) (arguing
that narrow statutory focus requiring equal work and same establishment results in limited
application).
36. Equal Pay Act, 29 U.S.C. § 206(d)(1) (1982). The plaintiff has the burden of showing
discriminatory treatment or effect. Id. The employer may rebut the charges by showing that
the differential is based on seniority, merit, a system measuring quantity or quality of production, or any other factor other than sex. Id.
37. See id. (setting forth four affirmative defenses). The fourth defense of the EPA, a
factor other than sex, provides the most latitude for employers charged with sex-based wage
discrimination. Id. The market theory, the claim that a male/female wage differential is based
on what the market will bear, is frequently asserted under category four. Coming Glass v.
Brennan, 417 U.S. 188 (1971). The state of Washington successfully used this defense in
AFSCME IL American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d
1401, 1406-07 (9th Cir. 1985). See infra notes 183-86 and accompanying text (analyzing market theory as employer defense).
38. See H.R. REP. No. 309, 88th Cong., 1st Sess. 1, reprinted in 1963 U.S. CODE CONG. &
ADMIN. NEWS 687, 690 (explaining differences between original bill and enacted legislation);
see also W. FOGEL, supra note 29, at 20 (noting original bill called for comparable worth). The
argument that comparable worth is a trendy, evanescent idea is substantially weakened by the
fact that comparable worth was a serious legislative proposal almost twenty-five years ago. See
generally Mann, Pay Equity: Myth v. Reality, 8 WOMEN'S RTS. L. REP. 16 (1984) (arguing compa-
rable worth is not revolutionary). But see Livernash, supra note 11, at 8 (noting undefined,
untested nature of comparable worth).
39. See H.R. REP. No. 309, 88th Cong., 1st Sess. 1, reprintedin 1963 U.S. CODE CONG. &
ADMIN. NEWS 687, 690 (specifying committee changes in bill).
40. See W. FOGEL, supra note 29, at 2 (asserting statute's restrictive language limits applicability for wage discrimination). The prohibition against wage differentials only applies
when workers are employed in the same business establishment performing equal work. Id.
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:245
During the House floor debate, members further articulated their
intent with respect to the definition of the word "equal" in the statute. 4 1 The members sought to eliminate the notion that, under the
Act, plaintiffs could seek equal pay for work of comparable value. 4 2
Two subcommittee members defined "equal" as the "same job
under the same working conditions" or "virtually identical" jobs. 43
A woman member echoed this restrictive interpretation in stating
that "[i]t is a matter of simple justice to pay a woman the same rate
'4 4
as a man when she is performing the same duties."
3. Judicialanalysis of the Equal Pay Act's provisions
Courts interpreting the language of the Equal Pay Act, however,
developed a "substantial equality" standard to assess job similarity
in wage discrimination cases. 45 Jobs need not be identical in every
The EPA's applicability may also be limited because, by 1963, most employers considered it
poor business judgment to pay women less then men for the same job, regardless of the law.
Id. But see Shultz v. Wheaton Glass Co., 421 F.2d 259, 267 (3d Cir. 1970) (holding as violative
of EPA where men performing identical job as women received ten percent higher pay rate),
cert. denied, 398 U.S. 905 (1970); Shultz v. American Can Co.-Dixie Prods., 424 F.2d 356, 361
(8th Cir. 1970) (deciding that twenty cent pay differential in favor of male machine operators
was not product of bona fide job classification system).
41. See W. FOGEL, supra note 29, at 26-27 (citing views of House committee members on
interpretation of "equal work" in EPA).
42. See id. at 27 (noting Congress' intent to define "equal" as meaning "same as").
43. See 109 CoNG. REC. 9,193 (statement of Rep. Goodell) (articulating his interpretation
of "equal" language in EPA).
44. See id. (statement of Rep. Bolton). Although a proponent of the bill, Representative
Bolton seemed to limit the bill's applicability to jobs that were essentially the same. Id. De-
spite the seeming innocuousness of an "equal pay for equal work" policy, there was opposi-
tion to the EPA at the time of its enactment. H.R. REP. No. 309, 88th Cong., 1st Sess. 3,
reprinted in 1963 U.S. CODE CONG. & ADMIN. NEWS 687, 690. One member of the House
Committee on Education and Labor termed the bill, "a hunting license.., on business[es]."
Id. Representative Paul Findley wrote that some people considered this bill, "a gallant gesture to the fairer sex," but he feared the legislation would "do more harm than good no
matter how noble the cause." Id. at 691-92. One concern was that female unemployment
would increase because employers could no longer pay women less than men. Id. at 691.
Businesses argued that, primarily due to homemaking demands, it cost approximately 300
more per hour to employ women instead of men. Id. at 691-92. Women required flexibility in
their schedules, special facilities, and tended to leave their jobs more frequently than men. Id.
at 692. Congressman Findley stated that the extra costs of employing women are incurred
because women have more homemaking and motherhood responsibilities than men. Id. at
692. One might hope that homemaking and motherhood responsibilities would be highly
valued by the market, but they are not. If they were, the market would have to bear the
additional costs of homemaking. See generally P. SAMUELSON, EcoNoMics 39-40 (1980)
(presenting rationale that market pays for what it values). Some early feminists also believed
that the equal pay movement may result in a loss ofjobs for women, particularly when women
may be less efficient than men. W. FOGEL, supra note 29, at 7 (1984). Unions, conversely,
strongly supported equal pay for women, largely to ensure that lower priced female labor
would not displace male workers. Id. at 6.
45. See Shultz v. Wheaton Glass Co., 421 F.2d 259, 266-67 (3d Cir.) (holding ten percent
wage differential between male and female employees violative of EPA), cert. denied, 398 U.S.
905 (1970). The defendant was one of the largest manufacturers of glass containers in the
country and employed men and women as selector-packers to visually inspect the finished
product. Id. at 261-62. The women employees received $2.14 per hour and the male employ-
1986]
COMPARABLE WORK, COMPARABLE PAY
253
respect for the EPA to apply. 4 6 In fact, the United States Court of
Appeals for the Third Circuit concluded that any requirement of
complete uniformity of job descriptions would inhibit the remedial
47
goals of the EPA.
Also significant is the United States Supreme Court's observations on the application of the market economy defense to rebut an
employment discrimination claim. In the Supreme Court's sole interpretation of the EPA, 48 the majority rejected the market rate or
justifying economic conditions defense that employers frequently
49
raised in wage discrimination actions.
ees received $2.35 per hour, ostensibly because the men performed the additional duties of
lifting crates. Id. at 262. The evidence on the record, however, showed that the male selector-packers spent relatively little time lifting crates each day and "snap-up" boys primarily
fulfilled the latterjob receiving $2.16 per hour, only two cents more than the women. Id. The
Third Circuit Court of Appeals held that a 21.54 per hour wage difference was not justified for
the work that the men and women performed in common, when the value of the additional
work of the snap-up boys commanded only an additional two cents per hour over the women's
wage. Id. at 264; see also Coming Glass Works v. Brennan, 417 U.S. 188, 203 (1974) (declaring jobs need not be identical in every respect for EPA coverage); Equal Employment Opportunity Comm'n v. Kenosha Unified School Dist. No. 1, 620 F.2d 1220, 1225 (7th Cir. 1980)
(maintaining that custodian and cleaner jobs not substantially equal); Homer v. Mary Inst.,
613 F.2d 706, 713 (8th Cir. 1980) (declaring EPA definition of "equal" means substantially
equal); Gunther v. County of Washington, 623 F.2d 1303, 1309 (9th Cir. 1979) (determining
substantial equality test of EPA allows job content, not titles, to be examined), af'd on other
grounds, 452 U.S. 161 (1981); Brennan v. South Davis Comm. Hosp., 538 F.2d 859, 864-65
(10th Cir. 1976) (finding hospital orderlies/aides and janitors/maids engaged in substantially
equal work); Brennan v. Owensboro-Daviess County Hosp., Inc., 523 F.2d 1013, 1030 (6th
Cir. 1975) (deciding male orderlies and female aids perform substantially equal jobs), cert.
denied, 425 U.S. 973 (1976); Hodgson v. Coming Glass Works, 474 F.2d 226, 235-36 (2d Cir.
1973) (holding day and night shift inspection work substantially equal), aff'd on other grounds
sub nom. Coming Glass Works v. Brennan, 417 U.S. 188, 203 (1974); Hodgson v. Fairmont
Supply Co., 454 F.2d 490, 493 (4th Cir. 1972) (holding substantial equality standard of EPA
does not require identical jobs, but equal skill, effort, and responsibility); Hodgson v. Brookhaven Gen. Hosp., 436 F.2d 719 (5th Cir. 1970) (establishing that male hospital orderlies and
female nurses aides engaged in jobs of commensurate skill and responsibility).
46. See Thompson v. Sawyer, 678 F.2d 257, 274-76 (D.C. Cir. 1982) (finding that EPA
covered jobs performed on different machines). The court emphasized that the substantial
equality test requires that jobs need not be identical to fall within the ambit of the EPA. Id. at
275. A wage differential will be justified, however, where "an appreciable variation in skill,
effort or responsibility" exists between the two jobs. Id. at 272.
47. See Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir.) (establishing substantial
equality standard in job characteristics sufficient for cause of action under EPA), cert. denied,
398 U.S. 905 (1970).
48. Coming Glass Works v. Brennan, 417 U.S. 188 (1974). See also W. FOGEL, supra note
29, at 48 (citing Coming Glass as only Supreme Court ruling on EPA); Blumrosen, supra note 6,
at 52 (stating Supreme Court guidance on EPA limited to one case).
49. See Coming Glass v. Brennan, 417 U.S. 188, 205-08 (1971) (holding pay differential
between male and female employees not justified by market forces). The employer in Corning
Glass hired day shift inspectors, who were exclusively female, and night shift inspectors, who
were exclusively male, and paid the women a lower wage, even after adjusting for the night
work differential. Id. at 188. The company argued that the positions were not similar and
attempted to use the fourth affirmative defense of the EPA, a "factor other than sex," to show
that their actions were not sex discrimination, but actions that market conditions demanded.
Id. at 190. The Court established:
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In Coming Glass Works v. Brennan,50 the Supreme Court determined that the defendant-employer paid women less than men for
the same job because men would not work at the cheaper female
rate due to market conditions. 5 1 The Court rejected these actions as
an impermissible justification under the fourth affirmative defense
of the EPA, a factor other than sex. 52 Drawing upon the statutory
authority of the EPA, the Court concluded that an economic analysis
may warrant the use of depressed wages in the female job market,
53
but a legal analysis does not.
B.
1.
Title VII: A Broader Application of Antidiscrimination Principles
Legislative history and background
Congress passed the Civil Rights Act (Act) in the summer of
The Civil Rights Act is a broad antidiscrimination statute
containing ten titles that seek to eliminate discrimination in various
areas of public life including voting rights, housing, education, and
employment opportunities. 55 Title VII -5 6 of the Act addresses dis1964.54
The [pay] differential arose simply because men would not work at the low rates
paid women inspectors, and it reflected a job market in which Coming could pay
women less than men for the same work. That the company took advantage of such a
situation may be understandable as a matter of economics, but its differential nevertheless became illegal once Congress enacted into law the principle of equal pay for
equal work....
Id. at 205.
The Supreme Court, therefore, rejected the market defense under the EPA. Id. The logic
of this argument can be extended to Title VII and comparable worth claims. See infra notes
183-86 and accompanying text (rejecting market defense in comparable worth legislation);
accord American Fed'n of State, County, & Mun. Employees v. Washington, 578 F. Supp. 846,
857 (W.D. Wash. 1983) (arguing only legitimate and overriding business considerations permit sexual wage differential under Title VII), rev'd, 770 F.2d 1401 (9th Cir. 1985). But see
Christensen v. Iowa, 563 F.2d 353, 355-56 (8th Cir. 1977) (permitting wage differential for
jobs in same evaluation category based on prevailing community wage).
50. 417 U.S. 188 (1974).
51. Id. at 205 (citing difficulty of hiring men at wage rate paid females).
52. Id. at 208 (stating that "factor other than sex" not applicable to market theory).
53. Id. at 205 (concluding that economic incentives do not permit employers to pay less
to women).
54. Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2(a) (1982); see also S. REP. No.
872, 88th Cong., 2d Sess. 1, reprintedin 1964 U.S. CODE CONG. & ADMIN. NEWS 2355 (stating
that general purpose of Civil Rights Act is to peacefully resolve problems of racial and religious discrimination affecting public in business, commerce, or the professions). The Act's
passage was partially due to the tragic death of President Kennedy. See KEARNS, LYNDON
JOHNSON AND THE AMERICAN DREAM 186 (1976) (describing Kennedy's death as explosive
force enabling passage of civil rights agenda).
55. Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2(a) (1982); see also H.R. REP.
No. 914, 88th Cong., 2d Sess. 1, reprinted in 1964 U.S. CODE CONG. & ADMIN. NEws 2391,
2394-2409 (providing title by title analysis of Civil Rights Act's goals to eliminate
discrimination).
56. Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2(a) (1982) states:
It shall be unlawful employment practice for an employer(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or
1986]
COMPARABLE WORK, COMPARABLE PAY
255
crimination in employment practices and provides the basis for litigating comparable worth actions in sex-based wage discrimination
57
cases.
The House and Senate Committee Reports accompanying the bill
did not state that the elimination of sex discrimination was one of
the goals of the statute.5 8 In fact, the opponents of the legislation
proposed language establishing sex as a protected class under Title
VII in a last minute attempt to defeat the bill. 5 9 Congress, however,
passed the bill with the additional classification and, consequently,
60
women now possess a statutory right to litigate for wage equality.
2.
Determining liability under Title VII
a. Disparate treatment theory
To establish the liability of employers for sex discrimination
under Title VII, courts use two methods of analysis, the disparate
treatment 6' and disparate impact theories. 62 Under the disparate
privileges of employment, because of such individual's race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race,
color, religion, sex, or national origin.
Id.
57. Id. Because the language of Title VII does not restrict a remedy to employees occupying "equal" positions, the enactment of that statute accelerated the development of the
comparable worth theory. See Heen, A Review of Federal Court Decisions Under Title VII, in COMPARABLE WORTH AND WAGE DISCRIMINA'rION 197 (H. Remick ed. 1984) (arguing that Title VII
helped develop comparable worth theory).
58. See S. REP. No, 872, 88th Cong., 2d Sess. 1, reprinted in 1964 U.S. CODE CONG. &
ADMIN. NEWS 2355, 2356-62 (presenting section by section analysis of Senate bill without
reference to problem of discrimination based on sex); H.R. REP. No. 914, 88th Cong., 2d
Sess. 1, reprintedin 1964 U.S. CODE CONG. & ADMIN. NEWS 2391, 2401 (stating purpose of bill
was to eliminate discrimination on basis of race, color, religion, and national origin).
59. See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 386 (5th Cir.) (noting sex
added as floor amendment to Civil Rights Act), cert. denied, 404 U.S. 950 (1971). The circuit
court in Diaz emphasized that the paucity of legislative guidance regarding Congress's prohibition on sex discrimination and the subsequent difficulty ofjudicial interpretation was a result of the little relevant floor debate that occurred on the amendment. Id.
60. See supra note 56 and accompanying text (articulating statutory language of Title
VII).
61. See e.g., Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 716-17
(1978) (holding pension plan requiring greater contributions by females unlawful under disparate treatment theory); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (finding it disparate treatment when qualified employee is rejected for position that employer
seeks to fill). In McDonnell Douglas, the Supreme Court created the classic test to establish a
prima facie case of racial employment discrimination. The following elements were included
in this test: "(i) plaintiff belongs to a racial minority; (ii) she applied and was qualified for the
position in question; (iii) though qualified, she was rejected; and (iv) the defendant continued
to solicit applicants with plaintiff's qualifications." Id. at 792-93. See Norris v. Arizona Governing Comm., 671 F.2d 330, 335-36 (9th Cir. 1982) (requiring equal annuity payments to
female retirees), aff'd 463 U.S. 1073 (1983); see also infra notes 161-72 and accompanying text
(analyzing use of McDonnell Douglas test in AFSCME II).
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treatment theory, a plaintiff must prove discriminatory intent or motive as one element of the claim. 63 Specifically, the showing of an
employer's deliberate and knowing act that detrimentally affects
members of a protected group will establish intent. 6 4 A mere showing that the employer had knowledge of the adverse consequences
of her policies on a protected group will not sustain the plaintiff's
burden of proof on intent. 65 Instead, the plaintiff must prove that
62. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 332 (1977) (finding that height and
weight requirements have disparate impact on women); International Bhd. of Teamsters v.
United States, 431 U.S. 324, 335 n.15 (1977) (applying disparate impact theory and distinguishing it from disparate treatment theory); Atonio v. Wards Cove Packing Co., Inc., 768
F.2d 1120, 1133 (9th Cir. 1985) (finding no pattern or practice of discrimination and no disparate impact); Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 672 (9th Cir. 1980)
(examining disparate impact of pregnancy policy on flight attendants); Gregory v. Litton Sys.,
Inc., 472 F.2d 631, 632 (9th Cir. 1972) (holding that job questionnaire asking for arrest record discriminated against minorities); see THE BUREAU OF NAT'L AFFAIRS, INC., supra note 10, at
21-24 (explaining standards for disparate treatment and impact theories); Warren & Boone,
AFSCME v. State of Washington: Title VII As A Winning Strategy To End Wage Dismmination 8
WOMEN'S RTS. L. REP. 17, 22-23 (1984) (stating that courts use disparate treatment and disparate impact theories for assessing discrimination); see also Heen, supra note 57, at 204-05
(presenting criteria used in disparate impact analysis).
A prima facie defense against employment discrimination can also be established under
Title VII, although courts narrowly construe this defense. See Heen, supra note 57, at 203. A
defendant-employer can rebut the charge of discrimination only if it shows that the practice is
justified by substantial, legitimate business necessity or if sex is a bona fide occupational qualification (bfoq) of thejob. Id. See Dothard v. Rawlinson, 433 U.S. 321, 334 (1977) (noting that
bfoq exception was intended to be narrow exception to prohibition of discrimination on basis
of sex); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 481 (9th Cir. 1983) (acknowledging
that discrimination can be justified by a business necessity); Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 674 n.2 (9th Cir. 1980) (noting standards for bfoq and legitimate
business necessity defenses). For example, sperm donors or certain acting roles would be
positions for which sex is a legitimate qualification for employment. See Heen, supra note 57,
at 203.
63. See Warren & Boone, supra note 62, at 24-26 (developing disparate treatment theory). The discriminatory motive sometimes can be inferred from the difference in treatment
of employees, but proof of intent, similar to the concept ofmens rea in criminal law, is important for a successful cause of action. Id.; see also Briggs v. City of Madison, 536 F. Supp. 435,
445 (W.D. Wis. 1982) (inferring disparate treatment from pattern or practice of employer).
64. See General Elec. Co. v. Gilbert, 429 U.S. 125, 136 (1976) (holding no intent to discriminate when disability program excludes pregnancy), reh'g denied, 429 U.S. 1079 (1977);
American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401, 1405
(9th Cir. 1985) (stating that plaintiff must show employer chose particular policy because of
effect on members of protected class).
65. See Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 277 (1979) (finding no discriminatory intent when veterans preference scheme favors men). In Feeney, the Supreme
Court reviewed a Massachusetts veterans preference scheme that enabled all veterans who
qualified under a competitive civil service examination to receive state job appointments
ahead of other qualifying nonveterans. Id. at 259. Respondent Feeney lost her bid for a state
government job because candidates with lower qualifying scores on the exam received preferential treatment over her. Id. at 264. The respondent argued that the statute was inherently
discriminatory against women, because the veterans population was 98% male and the impact
of this preference on employment opportunities of women was too inevitable to be unintended. Id. at 276, 283. The Court concluded that the establishment of discriminatory intent
requires that a policy was chosen because of its effect on a protected group. Id. at 279. The
key consideration is that the Court looked beyond the impact of the veterans preference
scheme and held that the policy was not developed to exclude women from employment. Id.
at 276, 281. The veterans preference, in form, was open to both sexes. Id. at 279-80.
1986]
COMPARABLE WORK, COMPARABLE PAY
257
the employer intended to discriminate against the suspect class. 6 6
b.
Disparate impact theory
Under the disparate impact theory, courts infer discrimination if
an employment practice has a disproportionately adverse effect
upon members of a Title VII protected class, despite the apparent
neutrality of the practice. 67 The establishment of the employer's
discriminatory motive or intent is irrelevant under the disparate impact test.68 The initial inquiry under this test is to identify the employment practice that produced the prejudicial results. 69 Once the
employment practice is identified, the plaintiff must demonstrate an
adverse impact. 70 The employer then has the opportunity to raise
71
the defense of business necessity.
The Supreme Court's decision in Griggs v. Duke Power Co. 72 illus66. Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (finding
requirement that female employees make larger contributions to pension plan unlawful); International Union of Elec., Radio & Mach. Workers v. Westinghouse Elec. Corp., 631 F.2d
1094, 1097 (3d Cir. 1980) (holding policy of lower wage rates to female employees deliberate
discrimination), cert. denied, 452 U.S. 967 (1981).
67. See Dothard v. Rawlinson, 433 U.S. 321, 331 (1977) (establishing disparate impact of
height and weight requirements on women); Griggs v. Duke Power Co., 401 U.S. 424, 432
(1971) (finding employment testing, unrelated to job, adversely affects minorities); Liberles v.
County of Cook, 709 F.2d 1122, 1130-31 (7th Cir. 1983) (maintaining general job classifications, despite facial neutrality, had disproportional negative impact on blacks); see also THE
BUREAU OF NAT'L AFFAIRS, INC., supra note 10, at 22-23 (setting forth disparate impact theory).
Employment practices that become issues under the disparate impact analysis include education requirements, methods of testing, or physical standards (such as height or weight). Id. at
23.
68. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 336 n.15 (1977)
(noting that disparate impact theory requires no proof of discriminatory motive). For the first
time, the Supreme Court, in InternationalBhd. of Teamsters, distinguished the disparate treatment and the disparate impact analyses and stated that the establishment of disparate treatment requires proof of discriminatory intent. Id. at 335-36, n. 15; see also Albemarle Paper Co.
v. Moody, 422 U.S. 405, 422 (1975) (stating Title VII claim not predicated upon employer's
good intent or absence of discriminatory intent); American Fed'n of State, County, & Mun.
Employees v. Washington, 578 F. Supp. 846, 856 (W.D. Wash. 1983) (finding employer liability without discriminatory intent), rev'd, 770 F.2d 1401 (9th Cir. 1985).
69. See THE BUREAU OF NAT'L AFFAIRS, INC., supra note 10, at 23 (describing employment
practices courts consider discriminatory under disparate impact test); see also Warren &
Boone, supra note 11, at 33 (explaining disparate impact test). The types of employment
practices analyzed under the disparate impact test range from entirely subjective practices,
such as promotional decisions involving personal opinions of supervisors, to completely objective criteria such as possession of a high school diploma. Id. at 33.
70. See, e.g., Dothard v. Rawlinson, 433 U.S. 321 (1977); International Bhd. of Teamsters
v. United States, 431 U.S. 324 (1977); Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 484
(9th Cir. 1983) (finding no disparate impact even though no black female employees were
hired for skilled, upper-level positions).
71. See Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 675-76 (9th Cir. 1980)
(determining pregnancy leave policyjustified on business necessity grounds of safety); Diaz v.
Pan Am. World Airways, Inc., 442 F.2d 385, 388-89 (5th Cir. 1971) (rejecting business necessity defense that interpersonal duties of flight attendants require that women perform job),
cert. denied, 404 U.S. 950 (1971).
72. 401 U.S. 424 (1971).
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[Vol. 36:245
trates the differences between the disparate impact and the disparate treatment theories. 7" The Court in Griggs held an employer
liable for a Title VII violation after she required applicants to
achieve a specified score on an intelligence test as a prerequisite to
employment. 74 The test results, however, in no way reflected the
applicant's ability, nor were they related to the skills the applicant
75
needed to perform her job.
As long as the tests are reasonably related to potential job performance, the Court noted that Title VII does not prevent employers from using them as a legitimate method of evaluating
applicants. 76 In this case, however, the testing procedures operated
as "built-in headwinds" for minorities. 77 Consequently, a lack of
discriminatory motive could not remove the practice from the statutory purpose of Title VII. 7 s According to the Court, Congress intended that Title VII claims should not only consider the employer's
discriminatory motive but also the consequences of the employment
79
practices.
C. Emergence of the Comparable Worth Theory: County of Washington
v. Gunther
The enactment of Title VII propelled the development of the
comparable worth theory because Title VII afforded women a broad
statutory scheme under which they could raise charges of wage discrimination against their employers. 8 0 The use of Title VII is im73. Id. at 432 (reviewing differences between disparate impact and disparate treatment
theories under Title VII).
74. Id. at 427. Evidence established at trial showed past intentional discrimination by the
defendant against blacks. Id. at 426-27. The Duke Power Co. only employed blacks in their
lowest paying department, the labor department. Id. at 427. This policy became illegal on
July 2, 1965, the day Title VII went into effect. Id. It was on that date that the company
instituted a policy of administering two aptitude tests as an additional requirement for employment in any other department, except for the labor department. Id. These aptitude test
scores were unrelated to job performance, and they precluded minorities from advancement.
Id. at 436. The test, therefore, produced a disparate impact of result for which the Court held
the company liable. Id. at 436.
75. Id. at 436 (stating that tests must be reasonable measure ofjob performance, not
mere reflection of socio-economic background).
76. Id. at 432 (asserting Title VII intent is to measure relationship between testing requirement and specific job).
77. Id.
78. Id. (asserting absence of discriminatory intent not enough to overcome practice with
discriminatory impact); see infra notes 178-83 and accompanying text (criticizing interpretation
of discriminatory intent in ,4FSCMEII); see also Albemarle Paper Co. v. Moody, 422 U.S. 405,
422-23 (1975) (contending discriminatory motive irrelevant under Title VII).
79. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (arguing that purpose of
Title VII is to attack effect of employment practices).
80. 42 U.S.C. § 200e-2(a) (1982) (prohibiting employment discrimination based on
race, color, religion, national origin, and sex); see also Heen, supra note 57, at 197 (arguing
comparable worth theory needed Title VII protection to attack discrimination in sex-segre-
1986]
COMPARABLE WORK, COMPARABLE PAY
259
portant in this context due to the statutory limitations of the Equal
Pay Act.8 1 The Bennett Amendment,8 2 a technical amendment to
3
Title VII, related the provisions of the Equal Pay Act to Title VII.8
The Bennett Amendment was added during the last two days of
debate on Title V1184 and provided that a wage differential could be
justified under Title VII if authorized under the terms of the Equal
Pay Act.8 5 A problem ofjudicial interpretation ensued in determining whether the Bennett Amendment allowed discrimination challenges based on equal work only, whether the amendment
incorporated the four defenses of the EPA, or both. 6 The Supreme
Court resolved the dilemma in County of Washington v. Gunther.8 7 In
Gunther, the Court noted that the EPA is divided into two sections 8
and that the Bennett Amendment only applies to the section providing employers with affirmative defenses to allegations of employment discrimination and not to the equal work provision.8 9
The Supreme Court determined that the equal work provision of
gated jobs); Gitt & Gelb, Beyond The Equal Pay Act: Expanding Wage Differential Protections Under
Title VII, 8 Loy. U. CH. LJ. 723, 724-25 (1977) (affirming importance of Title VII for comparable worth theory).
81. See supra notes 38-44 and accompanying text (emphasizing limited remedial relief
under EPA's requirement of equal work within same establishment).
82. 42 U.S.C. § 2000e-2(h) (1982). The Bennett Amendment became the last sentence
of § 703(h) of Title VII mandating that if employer differentiated wages on the basis of sex, it
was not an unlawful employment practice "if such differentiation is authorized by the provisions of section 206(d) of Title 29 [The Equal Pay Act]." Id.
83. See Mann, supra note 16, at 7-9 (declaring Bennett Amendment connects EPA to Title
VII); THE BUREAU OF NAT'L AFFAIRS, INC., supra note 10, at 14 (stating that Bennett Amendment linked Title VII's broad antidiscrimination goals to provisions of EPA).
84. See Heen, supra note 57, at 200 (providing historical background of Bennett
Amendment).
85. See supra note 82 (providing language of Bennett Amendment).
86. See THE BUREAU OF NAT'L AFFAIRS, INC., supra note 10, at 14 (questioning implications of Bennett Amendment).
87. 452 U.S. 161 (1981).
88. See id. at 169 (establishing the Bennett Amendment's relationship to Title VII and
Equal Pay Act); see also supra notes 34-37 and accompanying text (noting that Equal Pay Act
consists of two distinct provisions).
89. See County of Washington v. Gunther, 452 U.S. 161, 168 (1981) (mandating that
Bennett Amendment incorporates defenses, but not equal work provisions of EPA, into Title
VII). The appellees in Guntherwere female prison guards who supervised female inmates and
received substantially lower wages than the male guards employed in the male section of the
jail. Id. at 164. The district court found that the male guards supervised more than ten times
as many prisoners per guard as the female guards who also devoted more of their time to
clerical duties. Id. at 165. The district court denied the respondents relief based on the determination that the two jobs were not substantially equal. Id.
The United States Court of Appeals for the Ninth Circuit held that a discrimination claim
could be upheld under Title VII's language and intent though the jobs were dissimilar. Id. A
claim for sex-based wage discrimination still can be brought as long as the wage disparity was
not based on seniority, merit, quantity or quality of production, or "any other factor other
than sex," in other words, the four defenses of the Equal Pay Act. Id. The Supreme Court
affirmed the decision of the Ninth Circuit and declared that absolute equality ofjobs was not a
prerequisite to bringing a claim under Title VII. Id. at 178-80.
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:245
the EPA, requiring employees to perform equal work within the
same establishment in order to receive equal pay, was not applicable
to Title VII.90 Consequently, claims based on dissimilar jobs could
be litigated under Title VII. 9 1 The Bennett Amendment, therefore,
was a technical amendment designed to harmonize Title VII and the
EPA. 92 In dicta, the Court quickly stressed the narrowness of their
holding. 9 3 The Court did not intend to resolve the issue of compa94
rable worth.
Although the comparable worth theory was an ancillary issue, the
holding was significant in stating that employment discrimination
could occur even when the disputed jobs were dissimilar in nature. 95
The Court maintained that plaintiffs, with job descriptions different
than other employees, still possessed a cause of action in which they
could present evidence to prove that intentional sex discrimination
produced their lower wages. 9 6 The congressional intent of Title
VII, therefore, was to allow sex-based wage discrimination actions in
cases of dissimilar, as well as similar work. 9 7 Although Gunther
paved the way for comparable worth claims, 98 in the majority of
cases, courts have not responded favorably to comparable worth
actions. 99
90. Id. at 166.
91. See id. (holding that female plaintiffs may initiate wage discrimination causes of action
although their job is dissimilar to job of male co-workers).
92. Id. at 161-62 (stating that Bennett Amendment's purpose was to relate Equal Pay
Act's defenses to Title VII). But cf. Bellace, Comparable Worth: Proving Sex-Based Wage Discrimination, 69 IowA L. REV. 655, 656 (1984) (arguing that many questions still were not addressed
in Gunther regarding relationship between EPA and Title VII).
93. County of Washington v. Gunther, 452 U.S. 161, 166 (1981) (refusing to address
issue of comparable worth and terming comparable worth controversial).
94. Id.
95. See, e.g., Heen, supra note 57, at 201 (asserting Gunther decision important because
sex-based wage discrimination cases are not limited to claims of equal work). But see Mann,
supra note 16, at 8-9 (declaring Supreme Court's decision in Gunther did not expand rights
beyond those traditionally ascribed to Title VII).
96. County of Washington v. Gunther, 452 U.S. 161, 178-79 (1981).
97. See id. (determining that Title VII's prohibition on employment discrimination applicable even when women do not hold jobs equal to those held by men).
98. County of Washington v. Gunther, 452 U.S. 161, 166 (1981).
99. Id. See generally Spaulding v. University of Wash., 740 F.2d 686, 697-98 (9th Cir.)
(rejecting comparable worth comparison of nursing school instructors' salaries to other instructors at university), cert. denied, 105 S. Ct. 511 (1984); Lemons v. City & County of Denver,
620 F.2d 228, 229-30 (10th Cir.) (denying nurses claim of comparable worth), cert. denied, 449
U.S. 888 (1980); Christensen v. Iowa, 563 F.2d 353, 355 (8th Cir. 1977) (denying salary increase of clerical workers to rate of physical plant workers); Oaks v. City of Fairhope, 515 F.
Supp. 1004, 1041 (S.D. Ala. 1981) (barring recovery ofjob allegedly terminated on grounds
of sex discrimination); Lemons v. City & County of Denver, 17 Fair EmpI. Prac. Cas. (BNA)
906, 909 (D. Col. 1978) (rejecting claim for comparable value of dissimilar jobs and observing
that comparable worth was "pregnant with possibility of disrupting the entire economic system"), af'd, 620 F.2d 228 (10th Cir.), cert. denied, 449 U.S. 888 (1980).
1986]
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I.
PAY
261
AFSCME II: THE NINTH CIRCUIT'S DECISION
ON COMPARABLE WORTH
A.
1.
Factualand ProceduralBackground
The initialcomplaint
The original AFSCME litigation commenced in 1982 when two
unions, the American Federation of State, County, and Municipal
Employees (AFSCME) and the Washington Federation of State Employees (WFSE) filed suit against the State of Washington charging
sex-based wage discrimination in the state's employment practices.1 00 The unions represented approximately 15,500 government
employees who currently work or previously worked in jobs whose
sex composition was at least seventy percent female.' 0 ' The complaint maintained that the compensation paid to workers in traditionally female dominated jobs was lower than the compensation
0 2
paid to workers in traditionally male dominated jobs.1
The United States District Court for the Western District of
Washington held the state liable for sex-based wage discrimination
under the antidiscrimination provisions of Title VII. 10 3 The court
established the state's liability under both the disparate treatment
and disparate impact theories.' 0 4 Both the district court and the
Ninth Circuit Court of Appeals analyzed the case within the statutory framework of Title VII. 105 The Ninth Circuit, however, re100. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1403 (9th Cir. 1985). AFSCME initially filed charges with the Equal Employment Opportunity Commission (EEOC) in 1981. Id. The EEOC did not take action, however, and the Department of Justice issued a notice of the right to sue to AFSCME. Id. One year later, the
Washington state legislature enacted a bill requiring the addition of comparable worth criteria
to the salary schedules for state employees. The statute requires annual salary increases that
gradually achieve full comparable worth values in 1993. WASH. REV. CODE ANN. § 41.06.150
(17) (Supp. 1986).
The statute states in pertinent part:
Adoption and revision of a state salary schedule to reflect the prevailing rates in
Washington state private industries and other governmental units but the rates in
salary schedules or plans shall be increased if necessary to attain comparable
worth....
Id. The settlement contract between the parties to the litigation will now enforce this legislative provision. See SErTLEMENT AGREEMENT in American Fed'n of State, County, & Mun. Employees v. Washington, (Dec. 1985) at 4-7 (specifying terms of contract).
101. See American Fed'n of State, County, & Mun. Employees v. Washington, 578 F.
Supp. 846, 851 (W.D. Wash. 1983) (presenting factual background of case), rev'd, 770 F.2d
1401 (9th Cir. 1985).
102. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1403 (9th Cir. 1985).
103. American Fed'n of State, County, & Mun. Employees v. Washington, 578 F. Supp.
846 (W.D. Wash. 1983), rev'd, 770 F.2d 1401 (9th Cir. 1985).
104. Id. at 867; see supra notes 61-71 and accompanying text (discussing elements of disparate treatment and disparate impact theories).
105. See American Fed'n of State, County, & Mun. Employees v. Washington, 578 F.
Supp. 846, 854 (W.D. Wash. 1983) (citing Title VII as statutory authority on sex-based em-
262
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:245
versed the lower court's decision and held that no violation of Title
VII occurred. 106
2.
The Willis Study: a comparable worth job evaluation study
In 1973, Governor Daniel Evans of Washington requested that
the State Personnel Board initiate a study of all the jobs in the civil
service system.' 0 7 The purpose of the study was to assess the "comparable worth" ofjobs across all categories. 108 The study, known as
the Willis Study, compared dissimilar jobs, yet measured the value
of each job in terms of knowledge and skill, responsibility, mental
demands, and working conditions.10 9 The study found a twenty
percent difference in pay in favor ofjob categories that men dominated, as opposed to job categories that women dominated, when
the jobs compared reflected comparable levels of skill and value to
the employer. 110 The plaintiffs used the comparable worth theory
to argue that the state undervalued the jobs primarily held by women, and that sex-based wage discrimination existed because women received lower compensation than men received for jobs of
comparable value."' Both the district and appellate courts in
AFSCME I and AFSCME H used the comparable worth framework to
112
analyze the complaint under Title VII.
ployment discrimination), rev'd, 770 F.2d 1401, 1404 (9th Cir. 1985) (determining whether
comparable worth claim can be sustained under Title VII). The Court of Appeals for the
Ninth Circuit considered, but rejected, the use of the Equal Pay Act as a remedy in AFSCME
I1. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401, 1404
(9th Cir. 1985). The court of appeals determined that Congress intended the EPA to apply
only to situations involving equal, not comparable, jobs. Id.; see also supra notes 31-44 and
accompanying text (presenting legislative history of Equal Pay Act).
106. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1403 (9th Cir. 1985).
107. Id. In an attempt to determine whether a wage disparity truly existed, the state of
Washington commissioned management consultant Norman Willis to study a possible wage
disparity between employees in jobs held predominantly by women and employees in jobs
held predominantly by men. Id. The Willis Study compared 62 job classifications where at
least 70% of the employees were women, and 59job classifications in which at least 70% of
the employees were men. Id. The Willis Study utilized the concept of "comparable worth" in
evaluating the value of each position. Id. The concept of comparable worth requires fair
compensation to employees who may occupy facially dissimilar positions, but whose jobs require equal amounts of skill and responsibility in their performance. Id. Willis calculated
"comparable worth" under four criteria: knowledge and skills, mental demands, accountability, and working conditions. Id. at 1404. A maximum number of points was allocated to each
category and then each job was assigned a numerical value based upon the above four criteria.
Id. This study determined a 20% difference in pay in favor of the predominantly male jobs
having the same value to the employer as the jobs females predominantly held. Id. at 1403.
108. See id. (asserting study sought to determine if wage disparity existed).
109. Id.
110. Id.
111. Id. at 1404 (stating AFSCME alleges sex-based wage discrimination).
112. Id. at 1405, 1407 (stating that comparable worth statistics alone were insufficient to
establish inference of discriminatory motive).
1986]
COMPARABLE WORK, COMPARABLE PAY
B.
1.
263
The Ninth Circuit Court's Analysis
Major holdings
The court of appeals' decision in AFSCME H, where no Title VII
liability was found," t3 can be summarized in five parts: (1) the disparate impact theory cannot appropriately be used in the instant
case;" 14 (2) no discriminatory animus was proven to justify liability
under the disparate treatment theory;" 5 (3) there is no obligation
on the part of the state government to enforce the evaluation
study;" 16 (4) AFSCME did not meet its evidentiary burden of establishing systematic sex discrimination;" 7 and (5) the state's reliance
on market-based wages does not, in itself, create a discriminatory
8
action.11
2.
The court's reasoning
A plaintiff's burden of proof in a Tide VII case is to establish liability under the disparate treatment theory or the disparate impact
theory."19 In AFSCME 11, the Court of Appeals for the Ninth Circuit
found no liability under either theory.' 20 On the disparate impact
theory, the court in AFSCME 11 stated that precedent did not support the use of that analysis in the present case.' 2' The court reasoned that the disparate impact theory can be applied only to a
specific, clearly delineated employment practice. 22 The plaintiffs in
this case, however, argued that the market system itself discriminated against the women and, therefore, the defendant's use of the
market to set wages was discriminatory.' 2 3 Numerous complex factors determine how the market sets wages and, according to the
court, these factors could not be evaluated under the disparate im1403.
1408.
1407.
1408.
113.
114.
115.
116.
Id. at
Id. at
Id. at
Id. at
117.
Id. at 1407-08.
118. Id. at 1408.
119. See supra notes 61-79 and accompanying text (articulating criteria and standards for
liability under Title VII).
120. See American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d
1401, 1405-06 (9th Cir. 1985) (reversing district court's holding of liability for wage discrimi-
nation and finding no liability under disparate impact or disparate treatment theories).
121. Id. at 1405.
122. Id. Relying on Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1131 (9th Cir.),
vacated, 787 F.2d 462 (1985), the court in AFSCME H declared that the disparate impact theory is not amenable to broad discriminatory allegations. Id. Instead, the allegations must
challenge a specific, facially neutral employment practice. Id.; see also supra notes 67-71 and
accompanying text (explaining elements of disparate impact theory).
123. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1406 (9th Cir. 1985).
264
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:245
pact analysis. 124
Similarly, the court did not find liability under the disparate treatment theory. 12 5 The essential element of the disparate treatment
theory is a showing of discriminatory intent.' 26 The court noted
that this intent could not be inferred from the state's use of marketbased wages.' 2 7 Intent is connected to culpability, and the payment
of market wages is not an act which, in itself, supports an inference
of discrimination.' 28 The court believed that it may be possible to
infer discriminatory motive from circumstantial evidence,' 29 but
held that participation in the market system is not sufficient circum30
stantial evidence.'
The appellate court cited other authority from the Ninth Circuit
to establish that employers may use prevailing market rates as their
barometer to determine wages.1 3 ' For example, no finding of liability was sustained in Spaulding v. University of Washington' 3 2 when the
university, charged with sex-based wage discrimination, successfully
defended the claim of discrimination by asserting that they were
only paying market-based wages.' 3 3 The court of appeals maintained that neither Title VII nor its legislative history indicated a
congressional intent to supersede any of the traditional laws of the
34
market economy.
The court of appeals also recognized the state's complete independence to decide whether to enact their comparable worth
plan.' 35 Although the state should have been commended for initiating an evaluation of their job categories, the state was not bound
by the conclusions of those evaluations. 3 6 The court believed that,
if the state was required to enact the comparable worth evaluation
124. See id. (concluding disparate impact theory not applicable to market theory).
125. Id. at 1408.
126. Id. at 1406-07 (stating that requisite level of discriminatory intent was not
established).
127. Id. at 1407.
128. Id. (holding no indication in Title VII's legislative history that Congress intended to
eliminate basic economic principles).
129. Id. at 1406 (restating that circumstantial evidence can establish discriminatory intent); see also Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80 (1978) (concluding that
absence of other explanation for employer's behavior permits inference of discrimination).
130. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1406 (9th Cir. 1985) (holding market system itself does not allow inference of discrimination).
131. Id. at 1407.
132. 740 F.2d 686 (9th Cir. 1984), cert. denied, 105 S. Ct. 511 (1985).
133. Id. at 708 (establishing that employers may use market restrictions in employment
decisions).
134. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1406 (9th Cir. 1985); see also supra note 56 (providing statutory language of Title VII).
135. See id. at 1407 (asserting that state was not obligated to implement comparable worth
study because Title VII only ensures equal opportunities, not equal results).
136. Id. at 1408.
1986]
COMPARABLE WORK, COMPARABLE PAY
265
plan, the state might be held to possess the foresight to evaluate the
relative values and salary schedules of their employees and discourage future employers from undertaking such studies for fear that
they may be exposing themselves to civil liability.13 7 The court focused on the contention that because the state did not create the
economic inequality between jobs of comparable worth, the state
13 8
was not obligated to eliminate such inequality.
The court of appeals also criticized the fact that the appellee had
insufficient evidence to establish a pattern and practice of sex segre3 9
gation under the disparate treatment theory to justify the claim.1
The appellee presented as key evidence the state's previous practice
of using separate employment advertisements, listed as "helpwanted male" and "help-wanted female," in the classified section of
the newspaper. 140 The court held that the classified ads were isolated instances of sex discrimination that did not sufficiently justify a
41
remedial action against the state.1
AFSCME also based their claim of discriminatory treatment upon
statistics illustrating sex segregation and intentional discrimination. 14 2 The court held that the probative value of these statistics
was insufficient to create an inference of intent.' 4 3 The appellate
court recognized the legal principle that statistical evidence could
create the inference of intent, 14 4 but determined that AFSCME did
not sustain its burden of proof through its presentation of these statistics. 145 The court stated that submitting the job evaluation alone
did not establish the necessary level of discrimination under the dis14 6
parate treatment theory.
Finally, the court reaffirmed that the state's decision to rely on the
market to set wages was not a discriminatory action.' 4 7 An employer's use of traditional supply and demand analysis is not a viola137. See id. (seeking to praise employers for their efforts in comparable worth, not penalize them).
138. Id. at 1407-08.
139. See id. at 1407 (arguing that job evaluation studies and statistics are inadequate to
establish discriminatory motive).
140. Id. at 1408. Although the state had continued its practice of advertising with sexsegregated listings after the enactment of Title VII, by the time of trial, the state discontinued
the action. Id.
141. Id. at 1407-08.
142. See id. at 1407 (cautioning that statistics must be scrutinized closely).
143. Id.
144. Id.
145. See id. (noting comparability of dissimilar jobs as established in wage study was relevant, but statistics alone were insufficient to support discriminatory intent).
146. See id. at 1407 (reiterating subjectivity ofjob evaluation plan and legitimacy of using
market to set wage rates).
147. Id. at 1408.
266
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:245
tion of Title VII.1 4 8 Even though the Willis Study rated the jobs of
equal value, the court held that the study was only a subjective evaluation and, absent discriminatory animus, cannot support a Title
9
VII showing of disparate treatment.1 4
III. A
CRITICAL ANALYSIS OF THE NINTH CIRCUIT'S DECISION IN
AFSCME Hf
A.
An Overview of the Effects of the Decision
Because the district court decision in AFSCME I was one of the
first significant endorsements of the comparable worth theory,' 5 0
the Court of Appeals for the Ninth Circuit's reversal of the lower
court decision represents a setback for the comparable worth movement. 151 As this section argues, however, the Court of Appeals for
the Ninth Circuit's decision was not necessarily mandated by prior
case law or articulate scholarship in the area. The court erred in its
finding that the state was not liable for sex-based wage discrimination. This section critically focuses on the court's major holdings
and suggests an analytical framework that future courts should employ to uphold comparable worth claims.
148. See id. at 1407 (stating that Congress did not intend Title VII to supplant economic
principles).
149. See id. at 1408 (observing insufficient showing of discriminatory intent and questioning feasibility of comparable worth concept).
150. See generally Spaulding v. University of Wash., 740 F.2d 686, 697-98 (9th Cir. 1984)
(rejecting comparable worth comparison of nursing school instructors' salaries to other instructors at university), cert. denied, 105 S. Ct. 511 (1985); Lemons v. City & County of Denver,
620 F.2d 228, 229 (10th Cir. 1980) (denying nurses' claim of comparable worth), cert. dented,
449 U.S. 888 (1980); Christensen v. Iowa, 563 F.2d 353, 356 (8th Cir. 1977) (denying salary
increase of clerical workers to rate of physical plant workers); Oaks v. City of Fairhope, 515 F.
Supp. 1004, 1039-40 (S.D. Ala. 1981) (barring recovery of job allegedly terminated on
grounds of sex discrimination); Lemons v. City & County of Denver, 17 Fair Empl. Prac. Cas.
(BNA) 906, 909 (D. Colo. 1978) (rejecting claim for comparable value of dissimilar jobs), aftd,
620 F.2d 228 (10th Cir.), cert. denied, 449 U.S. 888 (1980); see also Warren & Boone, supra note
11, at 18 (stating that AFSCME I was important victory for workers in sex-segregated jobs);
THE BUREAU OF NAT'L AFFAIRS, INC., supra note 10, at 2 (dtingAFSCMEI as "landmark case").
151. See Pay Equity: The Battle Heats Up, Ms., Nov. 1985, at 19 (noting that comparable
worth theory suffered defeat in AFSCME II); see also supra note 24 and accompanying text
(explaining terms of settlement agreement between AFSCME and State of Washington).
Under the settlement contract, employees working in female-dominated job categories will
receive comparable worth wage increases so their salaries more accurately reflect the value of
their work to their employer. SETFLEMENT AGREEMENT in American Fed'n of State, County, &
Mun. Employees v. Washington, (Dec. 1985) at 2. Although an individual victory for the
plaintiffs in the case, the court of appeals' rejection of the comparable worth theory remains
an analytical obstacle to the elimination of sex-based wage discrimination. Under the terms of
the agreement, for instance, AFSCME has its remedy in a contract action and not under a
comparable worth theory. SETTLEMENT AGREEMENT in American Fed'n of State, County, &
Mun. Employees v. Washington, (Dec. 1985) at 8.
1986]
COMPARABLE WORK, COMPARABLE PAY
B.
1.
267
The Specific Holdings and Their Implications
Elimination of the disparate impact theory
The Ninth Circuit's most significant policy choice was the elimination of the use of the disparate impact theory for assessing liability
under Title VII.1 52 Because the disparate impact theory goes beyond the issue of an overt intent to discriminate and examines the
53
effect of a "neutral" employment practice on a protected group,1
the disparate impact theory reaches the roots of discrimination
1 54
more easily than the disparate treatment theory.
Sex discrimination produces subtle, deeply embedded forms of
bias that are accepted as part of the system and, therefore, nondiscriminatory. 5 5 Disparate impact probes the system or the "way
things are done" and, therefore, can expose the discriminatory effect of a particular employment practice.1 5 6 The disparate treatment theory, in contrast, requires proof of a deliberate intent to
discriminate, and therefore, may not be able to identify an institutionalized prejudice like sex discrimination.1 5 7 Consequently, some
employers would like to limit the use of disparate impact theory because they are potentially more vulnerable to liability under the dis58
parate impact theory than under the disparate treatment theory.'
In AFSCME II, the Ninth Circuit stated that the use of the dispa152. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1405 (9th Cir. 1985) (criticizing trial court's use of disparate impact theory).
153. See supra notes 61-79 and accompanying text (discussing disparate impact theory).
154. See Warren & Boone, supra note 11, at 32-33 (arguing that disparate impact theory
attacks substance, not form, of employment practices); accord B. BABCOCK, A. FREEDMAN, E.
NORTON, & S. Ross, SEx DISCRIMINATION AND THE LAW: CAUSES AND REMEDIES 331 (1975)
(stating disparate impact theory addresses more subtle forms of discrimination).
155. See K. MILLETF, SEXUAL PoLrricS 17 (1970) (asserting that patriarchal relations are
assumptions of society); see also Worden, Overshooting The Target: A Feminist Deconstruction of
Legal Education, 34 AM. U.L. REV. 1141, 1154 (1985) (expressing suppression of "female
voice" in law school). Specific examples of subtle and institutionalized sexist behavior include: the constant use of the pronoun "he," the observation that men interrupt three or four
times more frequently in discussion than women, and that men use abstract hypotheticals to
illustrate a point, while women tend to speak from personal experience. Id.
156. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 331 (1977) (using disparate impact
theory and concluding that height and weight requirements discriminate against women);
Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 673 (9th Cir. 1980) (using disparate
impact theory to attack pregnancy leave policy); Gregory v. Litton Sys., Inc., 472 F.2d 631,
632 (9th Cir. 1972) (holding job questionnaire requesting arrest record produces disparate
impact on minorities). But see Contreras v. City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981)
(affirming use of Civil Service examination), cert. denied, 455 U.S. 1021 (1982).
When courts use disparate impact theory to analyze a claim of discrimination, the "objective" response is that the system dictates the employment practice and that the employer does
not possess discriminatory intent. The disparate impact theory illustrates, however, that when
the system dictates discrimination, then the system is biased.
157. See supra notes 61-66 and accompanying text (articulating disparate treatment
theory).
158. See Warren & Boone, supra note 11, at 33 (maintaining employers preference to avoid
disparate impact). Common sense suggests that many women are underpaid for the value of
268
THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 36:245
rate impact theory was not appropriate in the case because disparate
impact should only challenge a specific and clearly delineated employment practice. 59 The state's decision to set wages at a certain
level did, however, represent a particular employment practice amenable to the disparate impact theory because setting wages is an
employment practice just like hiring decisions, application requirements, job qualifications, or pension plan contributions.' 6 0 Even if
the employment practice was less specific and less clearly delineated, however, the court underestimated the ability of the theory to
16 1
analyze complex and multifaceted problems.
2.
The error offinding no liability under the disparate treatment theory
The second major holding of the court in AFSCME II was that the
appellees did not establish a prima facie case of sex-based wage discrimination by a preponderance of the evidence under the disparate
treatment theory. 16 2 The Supreme Court annunciated the test for
determining discrimination under this Title VII theory in McDonnell
Douglas Corp. v. Green. 163 The burden of proof under the McDonnell
their work merely because female work is less respected, however, the disparate impact theory
can still find liability in those cases. Id.
159. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1406 (9th Cir. 1985). The union argued that the compensation system reflected the discriminatory impact of the market economy. Id. at 1405. Nevertheless, the court held that the laws
of supply and demand were too complex and multifaceted to be analyzed under the disparate
impact theory. Id. at 1406.
160. See THE BUREAU oF NAT'L AFFAIRS, INC., supra note 10, at 29 (stating that system of
compensation is objective, facially neutral practice).
161. See Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 673 (9th Cir. 1980) (using
disparate impact theory to assess medical and safety considerations regarding pregnancy
leave policy). The court in AFSCME II used Harrissas an example of an appropriate use of the
disparate impact theory. American Fed'n of State, County, & Mun. Employees v. Washington,
770 F.2d 1401, 1406 (9th Cir. 1985). The court in AFSCME II failed to mention, however,
that the second half of the opinion in Harrissscrutinized the impact that the mandatory sixtyday maternity leave had on women. Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670,
677 (9th Cir. 1980). In Haniss, the court stated that the decision of how long a woman should
rest after childbirth is a matter of conflicting medical evidence. Id. Two doctors testified that
women should not work for six weeks after the delivery, while another doctor preferred an
individualized evaluation, based on the general health of the woman. Id. The important point
is that there was no conclusive or universal rule specifying how long a woman must wait during the postpartum period before she returned to work. Id. The court in AFSCME II believed
that disparate impact could be applied in this case, which involved a complex and multifaceted
medical issue. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d
1401, 1406 (9th Cir. 1985). Consequently, the discussion in Harriss illustrated how courts can
use disparate impact theory in cases involving complicated issues.
162. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1406 (9th Cir. 1985) (reiterating disparate treatment theory requires showing of intent).
163. 411 U.S. 792 (1973). The Court established this test for discriminatory intent within
the context of a private, non-class action complaint under Title VII. The moving party must
prove four elements: "(i) [that] she belongs to a racial minority; (ii) [that] she applied and was
qualified for ajob the employer was trying to fill, (iii) [that] though qualified, she was rejected;
and (iv) [that] thereafter the employer continued to seek applicants with complainant's qualifications." Id. at 792-93. Because AFSCME H was a class action suit, a legal question could
1986]
COMPARABLE WORK, COMPARABLE PAY
269
Douglas four-part test, was articulated in Texas Department of Community Affairs v. Burdine,164 where the Supreme Court stated that the
plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. 6 5 Once the prima facie
case is established, however, the burden of production moves to the
defendant. 166 To rebut the charge of discrimination, the defendant
must show a nondiscriminatory reason for the employment practice,
16 7
the hiring decision, or other action.
In AFSCME II, the plaintiffs arguably established the four elements of a prima facie test.168 First, as members of a predominantly
female job classification, the plaintiffs belonged to a "minority" or
protected group. Second, the plaintiffs showed that they were confined to a sex-segregated job classification.1 69 Third, although qualified for higher pay based on the value of their work, the plaintiffs
were intentionally employed in a sex-segregated job classification
where they received deliberately depressed wages.' 70 Fourth, the
plaintiffs engaged in work of comparable value that resulted in unjust enrichment to the employer, despite the intentionally depressed
wages in the femalejob categories.' 7 ' Making a case for comparable
worth under the tests that the Supreme Court established in McDonnell Douglas172 and Burdine17 3 is, therefore, possible.
Another key factor that the Ninth Circuit incorrectly assessed in
AFSCME II, however, was the significant effect ofjob segregation in
keeping women in lower-paying positions. 74 Job segregation is inarise as to the applicability of the test in this context. See also supra note 61 and accompanying
text (explaining McDonnell Douglas's significance for Title VII liability).
164.
165.
450 U.S. 248 (1981).
See id. (clarifying nature of plaintiff's and defendant's burden in Title VII cases). The
plaintiff always maintains the final burden of persuasion that she was intentionally discriminated against by the defendant. Id. at 253. The defendant's only burden is to articulate non-
discriminatory reasons for her behavior. Id. at 260.
166. Id. at 260.
167. Id. (asserting defense in Title VII action requires showing of nondiscriminatoryjustification for behavior).
168. See Briggs v. City of Madison, 536 F. Supp. 435, 444 (W.D. Wis. 1982) (stating reasonable fact-finder could establish prima facie case of sex discrimination as developed in McDonnell Douglas).
169.
See id. (applying comparable worth theory within scope of traditional elements of test
for establishing discriminatory intent in employment).
170. Id.
171. Id. (citing elements of test).
172. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (creating prima
facie case of disparate treatment); see also supra note 162 and accompanying text (articulating
McDonnell Douglas test).
173. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-54 (1981) (declaring that plaintiff always carries burden of proving prima facie case).
174. See American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d
1401, 1407 (9th Cir. 1985) (arguing that state was not liable because it did not bar women's
access to any jobs).
270
THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 36:245
trinsically connected to depressed wages, 175 and job segregation is
illegal under Title VII.17 6 The continued segregation, therefore,
represents sufficient knowledge to justify a finding of intent under
177
the disparate treatment theory.
The Ninth Circuit held that the plaintiffs failed to establish the
necessary level of intent required under the disparate treatment theory.1 78 The court failed to recognize that, arguably, an employer's
discriminatory intent exists when the employer knows of a discriminatory situation and fails to correct it. 179 In light of the results of
the Willis Study, the State of Washington was on notice that their
system of compensation was discriminatory.180
In the event that the state asserted a good faith defense to the
charge of discriminatory intent under the disparate treatment test,
proof of liability for the discrimination still could be maintained
under the disparate impact test. 81 Under that theory of liability,
the employer's good or bad faith is irrelevant because intent itself is
irrelevant.' 8 2 A claim of mere good faith is too easy to make and
could eviscerate the remedial effects of Title VII.' s3
3.
The fallacy of the market theory
Another of the Ninth Circuit's critical holdings was that no Title
VII violation occurred because the wage differential between male
175. See Blumrosen, supra note 6, at 21 (arguing that job segregation and lower wages are
same issue).
176. 42 U.S.C. § 2000e-2(a)(2). Title VII provides in pertinent part that it is unlawful for
an employer "to limit, segregate, or classify his employees ... because of such individual's
race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(2).
177. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 334-39 (1977)
(articulating criteria for disparate treatment theory); see also supra notes 61-71 and accompanying text (discussing disparate treatment theory).
178. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1406 (9th Cir. 1985).
179. See B. BABCOCK, A. FREEDMAN, E. NORTON & S. Ross, SEx DISCRIMINATrON AND THE
LAW: CAUSE AND REMEDIES 400 (1975) (stating necessary level of discriminatory intent only
requires showing employer's actions not accidental), cited in Griggs v. Duke Power Co., 401
U.S. 424 (1971).
180. See American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d
1401, 1403 (9th Cir. 1985) (discussing Willis Study's conclusion that 20% wage disparity existed between male and female job categories).
181. See supra notes 61-79 and accompanying text (explaining elements of disparate impact theory).
182. See Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (declaring that good intent
or absence of discriminatory intent was not justification for prejudicial employment practices);
Albemarle Paper Co. v. Moody, 422 U.S. 405, 422 (1975) (reversing lower court's denial of
back pay based on employer's good faith defense). In Albemarle, the Supreme Court held the
employer liable because she continued a practice that she knew was of questionable legality.
Id.
183. See Atonio v. Wards Cove Packing Co., 768 F.2d 1120, 1131 (9th Cir.) (describing
Title VII as broad antidiscrimination provision), vacated, 787 F.2d 462 (1985).
1986]
COMPARABLE WORK, COMPARABLE PAY
271
84
and female employees was based on the prevailing market rate.
In other cases, however, courts have rejected the employers' use of
prevailing market rates as a defense to charges of discriminatory
wages.' 8 5 An employer cannot be exculpated from the conse-
quences of her discriminatory actions for the sole reason that the
market will bear the cost of those actions. 186 Congress enacted Title
87
VII as a broad prophylactic measure to combat discrimination.1
Its purpose would be defeated too easily if the market defense was
88
allowed to prevail in cases of sex-based wage discrimination.1
The court also erred in upholding the market defense because a
closer reading of the factual context of the case reveals that the state
did not strictly adhere to the market when it determined its employees' wages.' 8 9 The evidence shows that the wages the state paid
were not competitive with the rates that other employers paid. 90
Rather, the government salaries are based on subjective criteria
such as traditional assessments of the value of certain jobs, as well as
administrative and legislative discretion.' 9 1
Moreover, ninety-seven percent of the state jobs were not included in the salary survey.' 92 Those wage rates were established by
184. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1407 (9th Cir. 1985).
185. See Coming Glass Works v. Brennan, 417 U.S. 188, 204-05 (1974) (determining illegality of paying women less than men based on market principles); Norris v. Arizona Governing Comm., 671 F.2d 330, 335 (9th Cir. 1982) (holding that Title VII does not allow
discriminatory practices even when those practices reflect the market), modified, 463 U.S. 1073
(1983); Brennan v. City Stores, Inc., 479 F.2d 235, 241 n.12 (5th Cir. 1973) (concluding that
saleswomen and seamstresses cannot be paid lower rate than salesmen and tailors merely
because market will bear it); International Union of Elec., Radio and Mach. Workers v. Westinghouse Elec. Corp., 631 F.2d 1094, 1097-98 (3rd Cir. 1980) (rejecting employer's manual
that set lower wage curve for female employees than for male employees), cert. denied, 452 U.S.
967 (1981). But see Christensen v. Iowa, 563 F.2d 353, 356 (8th Cir. 1977) (stating that market
forces may be used to set wages).
186. See Brennan v. City Stores, Inc., 479 F.2d 235, 241 n.12 (5th Cir. 1973) (rejecting
market defense for paying lower salaries to saleswomen and seamstresses, than to salesmen
and tailors); see also Warren & Boone, supra note 11, at 38-39 n.214 (asserting failure of certain
market defenses).
187. See H.R. REP. No. 914, 88th Cong., 2d Sess. 1, reprintedin 1964 U.S. CODE CONG. &
ADMIN. NEWS 2391 (stating broad goals of Civil Rights Act); B. BABCOCK, A. FREEDMAN, E.
NORTON & S. Ross, supra note 179, at 229 (outlining comprehensive purposes of Title VII),
quoting COOPER & RABB, EoUAL EMPLOYMENT LAW AND LIGATION 33-36 (1972); see also supra
notes 55-61 and accompanying text (providing legislative history of Title VII).
188. See Warren & Boone, supra note 11, at 38-39 (arguing that market defenses should
not be allowed under Title VII because they are not allowed under EPA).
189. Brief for Appellees at 25, American Fed'n of State, County, & Mun. Employees v.
Washington, 770 F.2d 1401 (9th Cir. 1985). Although state law requires a salary survey every
second year that compares the wages of government employees to those of private sector
employees, these results are only recommendations, and, consequently, the state does not
implement them. Id.
190. See id. (arguing that government was not paying market rates).
191. Id. (providing actual criteria that state used in setting salaries).
192. Id. at 27.
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a subjective system known as "indexing." 19 In addition, the regular practice of granting percentage across-the-board wage increases
compounded and extended this imbalance. Salary increases of this
type perpetuated imbalances in the rate of payment.' 9 4 The state
did not follow the "objective" market economy in determining wage
rates as the court reasoned, but rather the state used subjective criteria.19 5 The state, therefore, should not be able to employ a defense based on the use of market indicators.
4.
The state of Washington should implement its comparable worth plan
The highly subjective nature of the actual system that the state
used for setting salaries leads to the fourth criticism of the court's
holding in AFSCME II. The court concluded that the state government maintained the discretion, but not the obligation, to implement its comparable worth plan.196 This holding implicitly assumes
that the state currently was using a neutral or objective system ofjob
evaluation.' 97 In fact, the Willis Study, highly respected for its validity and reliability, showed that the state's system was
98
discriminatory. 1
193. Id. The deposition of a manager from the Standards and Surveys Section of the
Department of Personnel revealed that "indexing is intended to maintain pre-existing pay
relationships, even when those relationships are contrary to market relationships." Id. at 2728. The highly subjective nature of indexing can promote sex discrimination. Id. at 29. For
example, when barber and beautician jobs were classified at the same benchmark level for
comparison of value, the barber classification was indexed two ranges above the beautician
classification when the salaries were set. Id. at 29. This is concrete evidence of the earlier
theoretical discussion of the undervaluation of female work. See supra notes 5-6 (documenting
greater respect and prestige accorded masculine tasks); see also Usery v. Allegheny County
Inst. Dist., 544 F.2d 148, 152 (3d Cir. 1976) (holding pay differential between barbers and
beauticians violates Equal Pay Act), cert. denied, 430 U.S. 946 (1977).
194. See Brief for Appellees at 27, American Fed'n of State, County, & Mun. Employees v.
Washington, 770 F.2d 1401 (9th Cir. 1985) (arguing that percentage salary increases maintain
wage disparity).
195. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401
(9th Cir. 1985). Once the Department of Personnel recommends the wage increases for various jobs, the suggested increases are often averaged, instead of being assigned separately to
each job. Brief for Appellees at 31-32, American Fed'n of State, County, & Mun. Employees
v. Washington, 770 F.2d 1401 (9th Cir. 1985) (presenting further evidence that government
did not pay market wages). In 1982, for example, 25 of the 90 benchmark jobs that the survey
used were averaged, resulting in final salaries deviating even further from the market rate. Id.
At the district court trial, experts testifying for both plaintiffs and defendants stated that the
averaging of suggested salary increases insulates the salaries from market variations. Id. at 32.
196. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1407 (9th Cir. 1985).
197. Id. The court argued that the state did not create this inequality and, therefore, was
not responsible for it. Id. This is contradicted, however, if the salary setting system is discriminatory. Brief for Appellees at 42-50, American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401 (9th Cir. 1985).
198. See STATE OF WASHINGTON HousE OF REPRESENTATIVES PROCEEDINGS, 2, (May 6,
1983) (Statement of Rep. Brekke). Members supporting the comparable worth legislation
emphasized that the Willis Study was not a new, untried system, but one that has been in use
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COMPARABLE WORK, COMPARABLE PAY
273
Many private employers within the state of Washington use the
Willis system as their guideline for setting wages. 199 The state,
therefore, cannot argue that it is substituting an untried, arbitrary
system for an objective system. 20 0 Title VII presently applies to
public and private employees, 20 ' thus indicating that the intent of
the legislation is to eliminate discrimination in employment when
20 2
that discrimination is manifestly evident.
5. AFSCME meets its evidentiary burden
A final critique of the court's holding refutes the conclusion that
AFSCME did not fulfill its evidentiary burden of establishing a pattern and practice of discrimination. 20 3 The court believed that the
incidences of sex discrimination were too isolated to establish discrimination. 20 4 The evidence AFSCME presented, however, belies
that assertion. 2 05 Both statistical and concrete examples of sex discrimination are required to establish liability under Title VII, and
AFSCME presented this evidence. 2 06 A charge of discrimination
may be sustained even when the statistical evidence of discriminasince 1974. Id. The system, moreover, was judged to have a 98% reliability and a 94% validity. Id.
199. Id. at 3-4 (Statement of Rep. Sayan). As of 1983, Weyerhauser Corp. used the Willis
Study throughout its national offices. Id. In the state of Washington, the employers using the
Willis Study included: Puget Sound Power and Light, Washington Water Power, Northwest
National Gas, Unigard Insurance, Simpson Timber, Olympia Stain, Snowkiss Growers,
Treetop Juice, Airborne Freight, Blue Cross of Washington, and King County Medical. Id.
200. See id. (supporting reliability of Willis point factor evaluation system).
201. 42 U.S.C. § 2000e-2(a) (1982); see also B. BABCOCK, A. FREEDMAN, E. NORTON & S.
Ross, supra note 178, at 229 (stating that as a result of 1972 amendment, Title VII applies to
virtually all local and state government employees), quoting COOPER & RABB, EQJJAL EMPLOYMENT LAW AND LITIGATION 33-36 (1972).
202. 42 U.S.C. § 2000e-2(a) (1982); see H.R. REP. No. 914, 88th Cong., 2d Sess. 1 reprinted
in 1964 U.S. CODE CONG. & ADMIN. NEWS 2391, 2401. For an explanation of why sex was
added as protected classification, see supra notes 54-60 and accompanying text.
203. American Fed'n of State, County, & Mun. Employees v. Washington, 770 F.2d 1401,
1407-08 (9th Cir. 1985) (holding that none of individually named plaintiffs were specific victims of sex discrimination).
204. Id. at 1407 (terming AFSCME's introduction of sex-segregated job advertisement as
"isolated").
205. See American Fed'n of State, County, & Mun. Employees v. Washington, 578 F.
Supp. 846, 864 (W.D. Wash. 1983) (specifying plaintiff's evidence), rev'd, 770 F.2d 1401 (9th
Cir. 1985). AFSCME presented evidence of a 20%o wage disparity in salaries between
predominantly male and predominantly female job classifications, presented additional statistical evidence demonstrating the inverse correlation between the percentage of women in a
classification and the salary, and presented admissions by state officials that wages paid to
employees in predominantly female jobs were discriminatory. Id. at 864. As the appellate
court stated, AFSCME also presented evidence of sex-segregated classified advertisements.
Id. at 860. For a discussion of the accuracy of statistical models of discrimination, particularly
the relationship between the number of women in a job and low salary, see Treiman, Hartmann & Roos, supra note 1, at 138.
206. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 339-40 (1977)
(stating prima facie case of discrimination best established when statistical data reinforces
other circumstantial evidence).
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tion was less than overwhelming, provided that this is not the only
20 7
evidence supporting the complaint.
As the preceding critique suggests, the Court of Appeals for the
Ninth Circuit should have affirmed the district court's finding of employer liability based on established legal principles and accepted
jurisprudence. If put in its proper perspective, the comparable
worth theory must be identified as one of many policy choices that
judges confront daily. Cataclysmic results will not occur if courts
adopt the comparable worth theory as the predominant legal model
20 8
to challenge sex-based wage discrimination.
CONCLUSION
Comparable worth or pay equity is essential for eliminating the
wage disparity that exists between men and women in the United
States today. The term comparable worth refers to a compensation
system requiring equal pay for dissimilar jobs that are of equal value
to an employer. Due to the phenomenon of sex segregation in employment and the undervaluation of female endeavors, a system
merely requiring equal pay for virtually identical jobs cannot
achieve fair wages for all workers.
In American Federation of State, County, and Municipal Employees v.
State of Washington (AFSCME II), the Court of Appeals for the Ninth
Circuit reversed a landmark decision establishing employer liability
for sex-based wage discrimination premised on a comparable worth
theory. In AFSCME II, government employees in predominantly female occupations filed a Title VII claim based on the results of a
state sponsored job evaluation study. The study demonstrated a
twenty percent wage disparity between female-dominated and maledominated occupations.
The court of appeals eliminated the use of the disparate impact
theory and found that there was an insufficient level of discriminatory intent to sustain a holding of liability under the disparate treatment theory, disposing of the appellee's claim under both theories
for Title VII liability. The court also upheld the defendant's claim
of a nondiscriminatory wage setting process that market indicators
207. See Fitzgerald v. Sirloin Stockade, Inc., 624 F.2d 945, 954-55 (10th Cir. 1980) (affirming Title VII claim despite slight probative value of statistical evidence because plaintiff
also offered evidence of specific discriminatory acts).
208. See Mann, supra note 38, at 7 (arguing comparable worth cases use traditional Title
VII theories). Although some commentators envision pay equity claims as producing uncontrollable economic disruption, the reality is that sex-based wage discrimination cases produce
more modest effects. Id.
1986]
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COMPARABLE WORK, COMPARABLE PAY
required despite evidence that the state did not rely on the market
to establish their employees' wages.
The court of appeals, however, could have used existing statutory
and precedential analysis to sustain the lower court's finding of sexbased wage discrimination. Although innovative, the comparable
worth theory is not revolutionary, and courts can approach sexbased wage discrimination claims under conventional Title VII theories of proof and liability. Courts should use these theories to
achieve justice in employment compensation.
AMELIA
K.
DUROSKA