Sex Discrimination and Equal Pay Litigation
| Publication year | 1981 |
| Pages | 480 |
1981, March, Pg. 480. Sex Discrimination and Equal Pay Litigation
The issue of employment discrimination arising from alleged inequalities in compensation between sexes has received increasing academic and judicial attention.(fn1) In terms of legal theory, the matter involves two major federal statutes---Title VII of the Civil Rights Act(fn2) and the Equal Pay Act(fn3)--- and their inter-relationship. From a larger perspective, the concept has been articulated as one which seeks to determine the "comparable worth" of services rendered by groups of employees.
The Tenth Circuit has been instrumental in the development of case law in this area. An early decision(fn4) shaped the course of litigation in other circuits and, to a significant degree, established the majority view which prevailed for nearly a decade. Several recent cases, however, have rejected the reasoning and conclusions in those decisions and at present the Tenth Circuit itself appears to have reached inconsistent results in two of its cases.(fn5) One of the cases can be characterized as a "comparable worth" litigation, while the other is ostensibly a "sex discrimination" case. Together, they illustrate the complexities generated in such litigation.
Section 703(a) of Title VII in relevant part prohibits an employer from discriminating against any individual with respect to compensation "because of such individual's ... sex."(fn6) The Equal Pay Act, which was enacted in 1963 as an amendment to the Fair Labor Standards Act,(fn7) specifically addresses pay disparities based on sex. It provides:
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....(fn8)
In an attempt to harmonize the similar provisions of Title VII and the Equal Pay Act, Congress added a proviso to Title VII which is commonly known as the "Bennett Amendment." Senator Bennett proposed the clarification of Title VII by including the following language in § 703(h):
It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of the wages or compensation paid or to be paid to employees of such employer if such differentiation is authorized by the provisions of § 6(d) of the Fair Labor Standards Act of 1938....(fn9)
The amendment, and most particularly the meaning of the word "authorized," is the crux of the Title VII---Equal Pay Act controversy.
In the 1971 decision in Ammons v. Zia Co.(fn10) the Tenth Circuit construed the Bennett Amendment to preclude a sex discrimination suit which failed to satisfy the "equal work" requirement of the Equal Pay Act. The plaintiff alleged that she had performed similar work to male employees but received less compensation for her efforts and had therefore been unlawfully discriminated against because of her sex. The court observed, however, that "to establish a case of discrimination under Title VII, one must prove a differential in pay based on sex for performing 'equal' work."(fn11) If, that is, an alleged discriminatee offered to prove Title VII...
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