B-217675, JUL 29, 1986, OFFICE OF GENERAL COUNSEL

B-217675: Jul 29, 1986

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OUR GENERAL GOVERNMENT DIVISION IS IN THE PROCESS OF SURVEYING ALL 50 STATES TO COMPILE THE DATA NECESSARY TO PROVIDE YOU WITH AN UPDATE ON THE STATES' PAY EQUITY ACTIVITIES. THE FOUR APPENDICES TO THIS LETTER CONTAIN THE ITEMS OF LEGAL INFORMATION YOU HAVE REQUESTED. IT WILL REPORT ITS FINDINGS TO YOU IN A SEPARATE DOCUMENT. WE ARE ALSO TRANSMITTING THIS LEGAL PORTION OF OUR RESPONSE TO SENATOR EVANS. THAT IT IS NOT THE TYPE OF SPECIFIC AND CLEARLY DELINEATED EMPLOYMENT PRACTICE AT WHICH THE DISPARATE IMPACT THEORY IS AIMED. /11/ TURNING TO THE ISSUE OF INTENTIONAL DISCRIMINATION. THE FREE MARKET SYSTEM IS NOT A "SUSPECT ENTERPRISE. THE STATE WAS BOUND TO IMPLEMENT THE RESULTS. THE AGREEMENT ESTABLISHES A PLAN UNDER WHICH THE STATE WILL DISTRIBUTE ANNUAL COMPARABLE WORTH SALARY INCREASES TO EMPLOYEES IN FEMALE-DOMINATED JOB CLASSIFICATIONS.

B-217675, JUL 29, 1986, OFFICE OF GENERAL COUNSEL

OFFICERS AND EMPLOYEES - EQUAL EMPLOYMENT OPPORTUNITY - DISCRIMINATION ACTIONS DIGEST: TWO CONGRESSMEN JOINED IN REQUESTING THAT GAO PROVIDE A SUPPLEMENTARY REPORT ON PAY EQUITY PRACTICES IN THE PUBLIC SECTOR. IN RESPONSE TO THE LEGAL PORTIONS OF THE REQUEST, WE PROVIDE THE CONGRESSMEN WITH INFORMATION ON RECENT PAY-INEQUALITY CASES INVOLVING GOVERNMENTAL EMPLOYERS AND WE DISCUSS VARIOUS STATUTES RELATING TO FEDERAL CLASSIFICATION AND PAY PRACTICES.

THE HONORABLE ALAN CRANSTON:

UNITED STATES SENATE

BY LETTER DATED JANUARY 28, 1986, YOU JOINED WITH SENATOR DANIEL J. EVANS IN REQUESTING A SUPPLEMENTARY REPORT ON PAY EQUITY ACTIVITIES IN THE STATES. AS PART OF YOUR REQUEST, YOU ASKED THAT WE PROVIDE INFORMATION ON RECENT PAY INEQUALITY CASES INVOLVING GOVERNMENTAL EMPLOYERS AND THAT WE DISCUSS CERTAIN STATUTES RELATING TO FEDERAL CLASSIFICATION AND PAY PRACTICES.

OUR GENERAL GOVERNMENT DIVISION IS IN THE PROCESS OF SURVEYING ALL 50 STATES TO COMPILE THE DATA NECESSARY TO PROVIDE YOU WITH AN UPDATE ON THE STATES' PAY EQUITY ACTIVITIES. PENDING COMPLETION OF THIS SURVEY, YOUR STAFF ASKED THAT WE PROVIDE YOU WITH THE FOLLOWING AS SOON AS POSSIBLE:

(1) AN UPDATE ON RELEVANT PAY-INEQUALITY CASES INVOLVING FEDERAL, STATE, AND LOCAL GOVERNMENTS, WITH PARTICULAR EMPHASIS ON THOSE CASES INVOLVING A GOVERNMENT'S FAILURE TO IMPLEMENT THE RESULTS OF A PAY EQUITY STUDY;

(2) A COMPARISON OF THE SCOPE OF THE EQUAL PAY ACT OF 1963 WITH THE STATUTORY OBJECTIVES OF THE GENERAL SCHEDULE CLASSIFICATION SYSTEM OUTLINED IN 5 U.S.C. CHAPTER 51;

(3) A DESCRIPTION OF THE FINDINGS AND REQUIREMENTS STATED IN THE JOB EVALUATION POLICY ACT OF 1970; AND

(4) A DISCUSSION OF ANY MATERIAL IN THE LEGISLATIVE HISTORY OF THE CIVIL SERVICE REFORM ACT OF 1978 WHICH AMPLIFIES THE MEANING OF THE MERIT SYSTEM PRINCIPLE STATING THAT "EQUAL PAY SHOULD BE PROVIDED FOR WORK OF EQUAL VALUE."

THE FOUR APPENDICES TO THIS LETTER CONTAIN THE ITEMS OF LEGAL INFORMATION YOU HAVE REQUESTED, IN THE ORDER IDENTIFIED ABOVE. WHEN OUR GENERAL GOVERNMENT DIVISION HAS COMPLETED ITS EVALUATION OF PAY EQUITY DEVELOPMENTS IN THE STATES, IT WILL REPORT ITS FINDINGS TO YOU IN A SEPARATE DOCUMENT.

BY LETTER OF TODAY, WE ARE ALSO TRANSMITTING THIS LEGAL PORTION OF OUR RESPONSE TO SENATOR EVANS.

APPENDIX I

RECENT PAY EQUITY CASES INVOLVING GOVERNMENTAL EMPLOYERS

IN OUR REPORT DESCRIBING OPTIONS FOR CONDUCTING A FEDERAL PAY EQUITY STUDY, /1/ WE SURVEYED PAY EQUITY CASE LAW WITH PARTICULAR EMPHASIS ON THOSE CASES DECIDED AFTER THE SUPREME COURT'S DECISION IN COUNTY OF WASHINGTON V. GUNTHER. /2/ IN GUNTHER, THE COURT HELD THAT A PLAINTIFF MAY MAINTAIN A CLAIM OF SEX-BASED WAGE DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 WITHOUT MEETING THE "EQUAL WORK" STANDARD OF THE EQUAL PAY ACT OF 1963, BUT IT DECLINED TO DEFINE THE SCOPE OF TITLE VII FOR PURPOSES OF FUTURE LITIGATION. /3/ IN THE AFTERMATH OF GUNTHER, COURTS DECIDING WAGE-INEQUALITY CASES EXPRESSED DIFFERENT OPINIONS CONCERNING THE THEORIES AVAILABLE AND EVIDENCE NECESSARY TO ESTABLISH A VIOLATION OF TITLE VII. HOWEVER, AS WE OBSERVED IN OUR REPORT, MOST COURTS EXPRESSED A PREFERENCE FOR FINDINGS OF INTENTIONAL DISCRIMINATION AND REJECTED CLAIMS BASED SOLELY ON THE THEORY OF "COMPARABLE WORTH." /4/

WE CONCLUDED THE SURVEY OF PAY EQUITY CASE LAW IN OUR REPORT BY DISCUSSING TWO RECENTLY-ISSUED DECISIONS: AFSCME V. STATE OF WASHINGTON, /5/ AND SPAULDING V. UNIV. OF WASHINGTON. /6/ IN THE AFSCME CASE, THE DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON HELD THAT: (1) WASHINGTON STATE INTENTIONALLY DISCRIMINATED AGAINST FEMALE EMPLOYEES BY DELAYING IMPLEMENTATION OF A PAY EQUITY STUDY DISCLOSING SEX-BASED WAGE DISPARITIES BETWEEN MALE AND FEMALE DOMINATED JOB CLASSIFICATIONS; AND (2) THE MARKET-BASED COMPENSATION SYSTEM WHICH THE STATE CONTINUED TO USE QUALIFIED AS A FACIALLY NEUTRAL POLICY HAVING A DISPARATE IMPACT ON WOMEN. /7/ IN THE SPAULDING CASE, THE COURT OF APPEALS FOR THE NINTH CIRCUIT REACHED A CONTRARY CONCLUSION ON THE DISPARATE IMPACT ISSUE, HOLDING THAT THE THEORY CANNOT BE USED TO CHALLENGE AN EMPLOYER'S RELIANCE ON MARKET FORCES. /8/

THE FOLLOWING DISCUSSION SUMMARIZES RECENT TITLE VII CASES INVOLVING STATE AND LOCAL GOVERNMENTS. /9/ OUR REVIEW BEGINS WITH THOSE CASES ADDRESSING THE TITLE VII CONSEQUENCES OF A GOVERNMENT'S FAILURE TO IMPLEMENT THE RESULTS OF A PAY EQUITY STUDY.

CASES INVOLVING FAILURE TO IMPLEMENT A PAY EQUITY STUDY

(1) NINTH CIRCUIT'S DECISION IN AFSCME V. STATE OF WASHINGTON. /10/

ON SEPTEMBER 4, 1985, A THREE-JUDGE PANEL FOR THE NINTH CIRCUIT COURT OF APPEALS OVERTURNED THE DISTRICT COURT'S DECISION IN AFSCME V. STATE OF WASHINGTON, DISCUSSED ABOVE. FIRST ADDRESSING THE DISTRICT COURT'S DETERMINATION OF WASHINGTON STATE'S LIABILITY UNDER THE DISPARATE IMPACT THEORY, THE APPELLATE COURT FOUND THAT APPLICATION OF THE THEORY HAD BEEN IMPROPER. THE COURT EXPLAINED THAT THE STATE'S MARKET-BASED COMPENSATION SYSTEM HAD BEEN DEVELOPED THROUGH A NUMBER OF COMPLEX PROCESSES, AND, THEREFORE, THAT IT IS NOT THE TYPE OF SPECIFIC AND CLEARLY DELINEATED EMPLOYMENT PRACTICE AT WHICH THE DISPARATE IMPACT THEORY IS AIMED. /11/

TURNING TO THE ISSUE OF INTENTIONAL DISCRIMINATION, THE COURT ACKNOWLEDGED THAT DISCRIMINATORY INTENT MAY BE INFERRED FROM CIRCUMSTANTIAL EVIDENCE. /12/ HOWEVER, THE COURT FOUND AFSCME'S EVIDENCE TO BE INSUFFICIENT, REJECTING THE UNION'S ARGUMENT THAT DISCRIMINATORY MOTIVE COULD BE INFERRED FROM THE STATE'S CONTINUED USE OF MARKET RATES IN SETTING SALARIES. /13/ ACCORDING TO THE COURT, THE FREE MARKET SYSTEM IS NOT A "SUSPECT ENTERPRISE," AND TITLE VII DOES NOT PROHIBIT EMPLOYERS FROM SETTING WAGES ACCORDING TO THE LAWS OF SUPPLY AND DEMAND. /14/ THE COURT STATED THAT, ALTHOUGH THE WASHINGTON STATE LEGISLATURE HAS THE DISCRETION TO ENACT A COMPARABLE WORTH PLAN IF IT CHOOSES TO DO SO, TITLE VII DOES NOT OBLIGATE THE STATE TO ELIMINATE AN ECONOMIC INEQUALITY WHICH IT DID NOT CREATE. /15/

FINALLY, THE COURT REJECTED AFSCME'S CONTENTION THAT, HAVING COMMISSIONED A PAY EQUITY STUDY, THE STATE WAS BOUND TO IMPLEMENT THE RESULTS. THE COURT STATED THAT A STUDY INDICATING THAT A PARTICULAR WAGE STRUCTURE WOULD BE MORE EQUITABLE SHOULD NOT CATEGORICALLY BIND THE EMPLOYER WHO COMMISSIONED IT, AND SUGGESTED THAT A CONTRARY RULE WOULD "PENALIZE RATHER THAN COMMEND EMPLOYERS FOR THEIR EFFORT AND INNOVATION IN UNDERTAKING SUCH A STUDY." /16/

AFTER THE APPELLATE PANEL ISSUED ITS DECISION, AFSCME FILED A PETITION REQUESTING THAT THE NINTH CIRCUIT UNDERTAKE A FULL COURT REVIEW. ESSENTIALLY, AFSCME ARGUED THAT THE PANEL'S DECISION GAVE TOO BROAD AN ENDORSEMENT TO WASHINGTON STATE'S RELIANCE ON MARKET RATES.

ON DECEMBER 31, 1985, AFSCME AND THE STATE OF WASHINGTON ENTERED INTO AN AGREEMENT FOR THE STATED PURPOSE OF IMPLEMENTING THE STATE'S COMPARABLE WORTH LEGISLATION PASSED IN 1983 AND FULLY RESOLVING THE LITIGATION IN AFSCME V. STATE OF WASHINGTON. THE AGREEMENT ESTABLISHES A PLAN UNDER WHICH THE STATE WILL DISTRIBUTE ANNUAL COMPARABLE WORTH SALARY INCREASES TO EMPLOYEES IN FEMALE-DOMINATED JOB CLASSIFICATIONS, THEREBY DISCHARGING ITS OBLIGATION UNDER STATE LAW TO ACHIEVE COMPARABLE WORTH NO LATER THAN 1993. THE UNION AGREED TO REFRAIN FROM SEEKING FURTHER COURT REVIEW OF THE NINTH CIRCUIT PANEL'S OPINION IN AFSCME, AND TO TAKE NO LEGAL ACTION BASED ON THE STATE'S IMPLEMENTATION OF ITS COMPARABLE WORTH PLAN. THE AGREEMENT BECAME EFFECTIVE IN APRIL 1986, HAVING BEEN RATIFIED BY THE WASHINGTON STATE LEGISLATURE AND APPROVED BY THE DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON.

(2) DISTRICT AND APPELLATE COURT RULINGS IN AMERICAN NURSES ASS'N V. STATE OF ILLINOIS. /17/

IN MAY 1984, THE AMERICAN NURSING ASSOCIATION (ANA) FILED A TITLE VII ACTION AGAINST THE STATE OF ILLINOIS. IN ITS COMPLAINT, THE ANA ALLEGED THAT THE STATE CONTINUED TO PAY EMPLOYEES IN "FEMALE-DOMINATED SEX- SEGREGATED" JOB CLASSIFICATIONS LESS THAN EMPLOYEES IN MALE DOMINATED CLASSIFICATIONS, EVEN THOUGH THE STATE'S EVALUATIVE STUDY HAD DISCLOSED THAT THE FEMALE CLASSIFICATIONS REQUIRE EQUAL OR GREATER DEGREES OF KNOW- HOW, PROBLEM-SOLVING, AND ACCOUNTABILITY.

THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS DISMISSED THE SUIT, CONCLUDING THAT "UNEQUAL PAY FOR JOBS ALLEGED TO BE OF COMPARABLE WORTH ON THE BASIS OF AN EVALUATED STUDY WHICH THE EMPLOYER COMMISSIONED BUT NEVER ADOPTED DOES NOT CONSTITUTE A VIABLE LEGAL THEORY UNDER TITLE VII. /18/ THE COURT OFFERED THREE REASONS FOR THIS HOLDING, STATING THAT: (1) CONGRESS SPECIFICALLY REJECTED A "COMPARABLE WORTH" STANDARD WHEN IT ENACTED THE EQUAL PAY ACT, AND NOTHING IN THE LANGUAGE OR LEGISLATIVE HISTORY OF TITLE VII DISCLOSES AN INTENTION TO REVERSE THAT EARLIER POLICY JUDGMENT; (2) ALTHOUGH THE SUPREME COURT IN GUNTHER HELD THAT TITLE VII EXTENDS BEYOND ALLEGATIONS OF UNEQUAL PAY FOR EQUAL WORK, THE COURT STRESSED THE NARROWNESS OF ITS HOLDING; AND (3) IN THE COURT'S OWN JUDGMENT, PERMITTING PROOF OF INTENTIONAL DISCRIMINATION THROUGH JOB EVALUATION STUDIES WOULD BE NEITHER WORKABLE NOR SOUND. /19/

IN THE COURSE OF ITS RULING, THE DISTRICT COURT SPECIFICALLY REJECTED THE ANA'S ARGUMENT THAT THE STATE'S FAILURE TO IMPLEMENT ITS OWN EVALUATIVE STUDY CONSTITUTED PROBATIVE EVIDENCE OF DISCRIMINATION. THE COURT STATED THAT, ALTHOUGH JOB EVALUATION MAY BE USEFUL AS A DIAGNOSTIC TOOL, TITLE VII DOES NOT REQUIRE AN EMPLOYER TO, "IMPLEMENT IMMEDIATELY WHATEVER PAY CHANGES A PARTICULAR STUDY SUGGESTS, WITHOUT REGARD TO ECONOMIC CONSIDERATIONS, THE LABOR MARKET BARGAINING DEMANDS OR THE POSSIBILITY THAT SOME OTHER STUDY MIGHT PRODUCE DIFFERENT RESULTS." /20/ ACCORDING TO THE COURT, A CONTRARY INTERPRETATION OF TITLE VII WOULD, "CREATE A DISINCENTIVE TO EMPLOYERS TO CONDUCT JOB EVALUATION STUDIES AT ALL." /21/

THE ANA APPEALED THE DISTRICT COURT'S RULING TO THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT. IN A DECISION DATED FEBRUARY 18, 1986, THE SEVENTH CIRCUIT REVERSED THE DISTRICT COURT'S ORDER DISMISSING THE SUIT AND REMANDED THE CASE FOR FURTHER PROCEEDINGS. /22/ THE APPELLATE COURT AGREED THAT THE COMPLAINT WOULD HAVE FAILED TO STATE A CLAIM UNDER TITLE VII IF IT HAD ALLEGED DISCRIMINATION BASED SOLELY ON THE STATE'S FAILURE TO IMPLEMENT THE RESULTS OF ITS PAY EQUITY STUDY. /23/ HOWEVER, THE COURT FOUND THAT PORTIONS OF THE COMPLAINT COULD BE READ AS ALLEGING INTENTIONAL DISCRIMINATION IN VIOLATION OF TITLE VII. FOR EXAMPLE, THE COURT NOTED THAT THE COMPLAINT CHARGED THAT THE STATE SEGREGATED JOB CLASSIFICATIONS ACCORDING TO SEX, AND THAT SUCH A PRACTICE, IF SHOWN TO BE DELIBERATE, WOULD CONSTITUTE INTENTIONAL DISCRIMINATION. /24/

OTHER PAY EQUITY CASES

ASIDE FROM THE CASES DISCUSSED ABOVE, IT APPEARS THAT THE MOST SIGNIFICANT RECENT RULINGS INVOLVING STATE AND LOCAL GOVERNMENTS CONSIST OF THE INTERIM ORDERS WHICH HAVE BEEN ISSUED IN THREE PENDING CASES: AFSCME V. COUNTY OF NASSAU; HAWAII GOVERNMENT EMPLOYEES ASS'N V. STATE OF HAWAII; AND CALIFORNIA STATE EMPLOYEES ASS'N V. STATE OF CALIFORNIA. THESE ORDERS, DISCUSSED BELOW, COURTS HAVE ALLOWED SUITS WHICH HAVE BEEN CHARACTERIZED AS "COMPARABLE WORTH" CASES TO PROCEED ON THE BASIS THAT THEY ALLEGE INTENTIONAL DISCRIMINATION. ALSO DISCUSSED BELOW ARE THE RECENTLY-FILED LAWSUITS IN UAW V. STATE OF MICHIGAN AND DISTRICT COUNCIL 33 V. CITY OF PHILADELPHIA. TO DATE, THESE SUITS HAVE NOT BEEN THE SUBJECT OF ANY FORMAL JUDICIAL RULINGS.

(1) INTERIM ORDERS ISSUED IN PENDING LITIGATION

(A) AFSCME V. COUNTY OF NASSAU. /25/

IN THIS SUIT, AFSCME AND TEN INDIVIDUAL PLAINTIFFS HAVE ALLEGED THAT THE COUNTY OF NASSAU, NEW YORK, HAS DISCRIMINATED AGAINST EMPLOYEES IN HISTORICALLY FEMALE JOB CLASSIFICATIONS IN VIOLATION OF THE EQUAL PAY ACT AND TITLE VII. SPECIFICALLY, IN THE PORTIONS OF THE COMPLAINT RELATING TO TITLE VII, THE PLAINTIFFS ALLEGED THAT THE COUNTY HAS DISCRIMINATORILY PAID HISTORICALLY FEMALE JOBS LESS THAN HISTORICALLY MALE JOBS REQUIRING AN EQUIVALENT OR A LESSER COMPOSITE DEGREE OF SKILL, EFFORT, AND RESPONSIBILITY. EXAMPLES OF INDIVIDUAL DISCRIMINATION CLAIMS PRESENTED IN THE COMPLAINT INCLUDE THOSE OF A REGISTERED NURSE ALLEGING THAT SHE IS DISCRIMINATORILY PAID LESS THAN PROBATION OFFICERS AND DUPLICATING MACHINE OPERATORS, AND A FOOD SERVICE WORKER MAINTAINING THAT SHE IS DISCRIMINATORILY PAID LESS THAN MORGUE ATTENDANTS AND GROUNDSKEEPERS. ADDITIONALLY, THE COMPLAINT ALLEGED THAT THE COUNTY'S COMPENSATION PRACTICES HAVE HAD A DISPARATE IMPACT ON EMPLOYEES IN FEMALE-DOMINATED JOB CLASSIFICATIONS.

THE COUNTY MOVED FOR DISMISSAL OF THE PLAINTIFFS' TITLE VII CLAIMS ON THE BASIS THAT THEY WERE GROUNDED ON THE THEORY OF "COMPARABLE WORTH." ALSO, IN AN APPARENT ATTEMPT TO DISTINGUISH THE DISTRICT COURT'S DECISION IN AFSCME V. STATE OF WASHINGTON, WHICH HAD NOT YET BEEN OVERTURNED, THE COUNTY ARGUED THAT THE CLAIMS WERE NOT ACTIONABLE UNDER TITLE VII BECAUSE THEY DID NOT ALLEGE THAT THE COUNTY HAD DISREGARDED THE RESULTS OF A PAY EQUITY STUDY.

RESPONDING TO THE COUNTY'S MOTION, THE DISTRICT COURT AGREED THAT A "PURE" COMPARABLE WORTH CLAIM WOULD NOT BE ACTIONABLE UNDER TITLE VII. /26/ HOWEVER, THE COURT ALLOWED THE SUIT TO PROCEED ON THE BASIS THAT THE PLAINTIFFS WERE ALLEGING INTENTIONAL DISCRIMINATION. /27/ THE COURT EXPLAINED THAT INTENTIONAL DISCRIMINATION MAY BE INFERRED FROM VARIOUS FORMS OF CIRCUMSTANTIAL AND STATISTICAL EVIDENCE, AND THAT IT IS NOT NECESSARY TO DEMONSTRATE THAT AN EMPLOYER DISREGARDED A JOB EVALUATION STUDY DISCLOSING INEQUITABLE COMPENSATION PRACTICES. /28/ THE COURT DISMISSED THE PORTION OF THE PLAINTIFFS' COMPLAINT ALLEGING THAT THE COUNTY'S COMPENSATION PRACTICES QUALIFIED AS A FACIALLY NEUTRAL POLICY HAVING A DISPARATE IMPACT ON WOMEN. CITING THE NINTH CIRCUIT'S DECISION IN SPAULDING V. UNIV. OF WASHINGTON, DISCUSSED ABOVE, THE COURT STATED THAT, "THE DISPARATE IMPACT THEORY IS NOT AN APPROPRIATE VEHICLE FOR LAUNCHING A BROAD-BASED ATTACK ON A WAGE SYSTEM." /29/

(B) HAWAII GOVERNMENT EMPLOYEES ASS'N V. STATE OF HAWAII. /30/

IN NOVEMBER 1984, A LOCAL UNIT OF AFSCME FILED A CLASS ACTION LAWSUIT ON BEHALF OF STATE, COUNTY, AND JUDICIARY EMPLOYEES IN THE STATE OF HAWAII. THE COMPLAINT ALLEGED THAT THE STATE OF HAWAII AND VARIOUS PUBLIC OFFICIALS DISCRIMINATORILY SEGREGATED JOB CLASSIFICATIONS ACCORDING TO SEX, AND PAID EMPLOYEES IN HISTORICALLY FEMALE JOBS LESS THAN EMPLOYEES IN HISTORICALLY MALE JOBS FOR WORK OF SUBSTANTIALLY EQUAL VALUE.

ON AUGUST 12, 1985, THE DISTRICT COURT FOR THE DISTRICT OF HAWAII REFUSED TO DISMISS THE PLAINTIFFS' ALLEGATIONS OF DISCRIMINATION, STATING AS ONE OF ITS FINDINGS THAT:

"*** WHILE EVIDENCE OF COMPARABLE WORK WILL NOT ALONE BE SUFFICIENT TO ESTABLISH A PRIMA FACIE CASE OF SEX DISCRIMINATION, THE COMPARABILITY OF JOBS CAN BE RELEVANT TO DETERMINING WHETHER DISCRIMINATORY ANIMUS CAN BE INFERRED." /31/

THE DISTRICT COURT DID DISMISS SOME CLAIMS AGAINST CERTAIN STATE AGENCIES AND OFFICIALS NAMED IN THE COMPLAINT, AND ALSO DISMISSED THE CLAIMS OF MALE PLAINTIFFS OCCUPYING FEMALE-DOMINATED JOBS.

(C) CALIFORNIA STATE EMPLOYEES ASS'N V. STATE OF CALIFORNIA. /32/

IN NOVEMBER 1984, THE CALIFORNIA STATES EMPLOYEES ASSOCIATION FILED A SEX -BASED WAGE DISCRIMINATION LAWSUIT AGAINST THE STATE OF CALIFORNIA, ON BEHALF OF 37,000 STATE EMPLOYEES. THE COMPLAINT ALLEGED THAT THE STATE HAS VIOLATED TITLE VII BY MAINTAINING SEX-SEGREGATED JOB CLASSIFICATIONS AND BY COMPENSATING HISTORICALLY FEMALE JOBS LESS THAN MALE JOBS REQUIRING EQUIVALENT SKILL, EFFORT, AND RESPONSIBILITY.

BY ORDER DATED SEPTEMBER 13, 1985, THE DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA GRANTED THE UNION'S MOTION FOR CLASS CERTIFICATION OVER THE STATE'S OBJECTION THAT THE SUIT INVOLVED INACTIONABLE "COMPARABLE WORTH" CLAIMS. THE COURT CHARACTERIZED THE PLAINTIFFS' COMPLAINT AS ONE ALLEGING INTENTIONAL DISCRIMINATION, AND, ON THIS BASIS, IT STATED THAT THE SUIT WOULD NOT BE PRECLUDED BY THE NINTH CIRCUIT'S DECISION IN AFSCME V. STATE OF WASHINGTON. /33/ SPECIFICALLY, THE COURT EXPLAINED THAT:

"THE NINTH CIRCUIT'S DECISION (IN AFSCME) DOES NOT FORECLOSE THE APPLICATION OF TITLE VII TO WAGE DISPARITIES BETWEEN JOB CLASSIFICATIONS HELD PRIMARILY BY WOMEN AND JOB CLASSIFICATIONS HELD PRIMARILY BY WOMEN WHERE A DISCRIMINATORY ANIMUS IS SHOWN, EVEN THOUGH THE WAGE RATES MAY HAVE HAD THEIR ANTECEDENTS IN MARKET RATES. DISCRIMINATORY MOTIVE IS THE VERY EVIL TO WHICH TITLE VII IS DIRECTED. ***" /34/

(2) RECENTLY-FILED LAWSUITS

(A) UAW V. STATE OF MICHIGAN. /35/

IN NOVEMBER 1985, UAW FILED A SEX-BASED WAGE DISCRIMINATION LAWSUIT AGAINST THE STATE OF MICHIGAN AND THE MICHIGAN CIVIL SERVICE COMMISSION, ON BEHALF OF APPROXIMATELY 17,000 STATE CIVIL SERVICE EMPLOYEES. THE UNION ALLEGES THAT THE DEFENDANTS HAVE VIOLATED TITLE VII BY ESTABLISHING AND MAINTAINING SEX-SEGREGATED JOB CLASSIFICATIONS LESS THAN MALE- DOMINATED CLASSIFICATIONS REQUIRING AN EQUIVALENT OR A LESSER COMPOSITE OF SKILL, EFFORT, RESPONSIBILITY, AND WORKING CONDITIONS. ADDITIONALLY, THE UNION MAINTAINS THAT THE STATE HAS ACKNOWLEDGED PAY INEQUITIES BETWEEN FEMALE AND MALE-DOMINATED JOB CLASSIFICATIONS, BUT THAT IT HAS TAKEN NO ACTION TO ELIMINATE THESE INEQUITIES.

DISTRICT COUNCIL 33 V. CITY OF PHILADELPHIA. /36/

IN DECEMBER 1985, A LOCAL UNIT OF AFSCME FILED A SEX-BASED WAGE DISCRIMINATION SUIT AGAINST THE CITY OF PHILADELPHIA, ON BEHALF OF MORE THAN 3,000 EMPLOYEES WORKING IN TRADITIONALLY FEMALE JOB CLASSIFICATIONS. THE COMPLAINT ALLEGES THAT THE CITY HAS INTENTIONALLY DISCRIMINATED AGAINST EMPLOYEES IN TRADITIONALLY FEMALE JOBS BY: (1) PAYING FEMALE EMPLOYEES LESS THAN MALE EMPLOYEES PERFORMING SUBSTANTIALLY EQUIVALENT JOB DUTIES; (2) INTENTIONALLY ENGAGING IN A PATTERN AND PRACTICE OF PAYING EMPLOYEES IN TRADITIONALLY FEMALE JOBS LESS THAN EMPLOYEES IN TRADITIONALLY MALE JOBS WHICH REQUIRE AN EQUIVALENT OR A LESSER COMPOSITE OF SKILL, EFFORT, RESPONSIBILITY, AND WORKING CONDITIONS; AND (3) DISCRIMINATING IN COMPENSATION BY IMPOSING DISPARATE TERMS AND CONDITIONS FOR PROMOTION AND ADVANCEMENT WITHIN TRADITIONALLY MALE AND TRADITIONALLY FEMALE JOB CLASSIFICATIONS. ADDITIONALLY, THE COMPLAINT STATES THAT, IN OCTOBER 1985, A CITY APPOINTED TASK FORCE ISSUED A REPORT DOCUMENTING EXTENSIVE SEX SEGREGATION AND WAGE DISCRIMINATION IN THE CITY'S WORK FORCE. ACCORDING TO THE COMPLAINT, THE TASK FORCE'S REPORT DISCLOSED THAT WOMEN ARE HEAVILY OVER-CONCENTRATED IN THE CITY'S LOWEST PAYING JOB CLASSES, AND THAT FEMALE JOBS ARE PAID LESS THAN MALE JOBS REQUIRING EQUIVALENT OR LESSER DEGREES OF SKILL, EFFORT, RESPONSIBILITY AND EDUCATION.

APPENDIX II

THE EQUAL PAY ACT OF 1963 AND THE CLASSIFICATION ACT: A COMPARISON OF STATUTORY OBJECTIVES

DESCRIPTION OF THE LAWS

THE EQUAL PAY ACT OF 1963, 29 U.S.C. SEC. 206(D) (1982), PROHIBITS UNEQUAL PAY FOR EQUAL WORK PERFORMED BY MEN AND WOMEN, UNLESS AN EMPLOYER DEMONSTRATES THAT THE PAY DIFFERENTIAL IS JUSTIFIED BY SENIORITY, MERIT, QUANTITY OR QUALITY OF PRODUCTION, OR ANY FACTOR OTHER THAN SEX. ENACTING THE EQUAL PAY ACT, CONGRESS REJECTED A STANDARD OF EQUAL PAY FOR "COMPARABLE" WORK IN FAVOR OF THE "EQUAL WORK" STANDARD, FINDING THAT THE LATTER STANDARD COULD BE ADMINISTERED MORE EASILY AND THAT IT WOULD INVOLVE LESS INTRUSIVE GOVERNMENTAL ENFORCEMENT. /37/ CONSISTENT WITH THIS EXPRESSION OF LEGISLATIVE INTENTION, THE COURTS HAVE HELD THAT JOBS MUST BE AT LEAST "SUBSTANTIALLY EQUAL" TO BE COVERED BY THE EQUAL PAY ACT. /38/ CONSEQUENTLY, THE ACT DOES NOT PROHIBIT A PAY DISPARITY BETWEEN JOBS WHICH ARE DISSIMILAR IN CONTENT, EVEN IF THE JOBS INVOLVE THE SAME COMPOSITE DEGREE OF SKILL, EFFORT, AND RESPONSIBILITY. /39/

THE PROVISIONS OF 5 U.S.C. CHAPTER 51 CODIFY THE CLASSIFICATION ACT OF 1949, /40/ WHICH, IN TURN, INCORPORATED BASIC CLASSIFICATION POLICIES ESTABLISHED BY CONGRESS IN THE CLASSIFICATION ACT OF 1923. /41/ THE 18- GRADE GENERAL SCHEDULE SYSTEM WHICH IS OUTLINED IN 5 U.S.C. CHAPTER 51 APPLIES TO FEDERAL "WHITE COLLAR" POSITIONS IN ADMINISTRATIVE, CLERICAL, TECHNICAL, AND PROFESSIONAL OCCUPATIONS. THE PURPOSE OF THE GENERAL SCHEDULE SYSTEM, AS STATED IN 5 U.S.C. SEC. 5101, IS TO PROVIDE A PLAN UNDER WHICH: (1) THE PRINCIPLE OF EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK WILL BE FOLLOWED (SECTION 5101(1)(A)); (2) VARIATIONS IN RATES OF BASIC PAY WILL BE PROPORTIONAL TO SUBSTANTIAL DIFFERENCES IN THE DIFFICULTY, RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS OF THE WORK PERFORMED (SECTION 5101(1)(B)); AND (3) INDIVIDUAL POSITIONS WILL BE GROUPED AND IDENTIFIED BY "CLASSES" AND "GRADES" ACCORDING TO THEIR DUTIES, RESPONSIBILITIES, AND QUALIFICATION REQUIREMENTS, SO THAT THE RESULTING POSITION-CLASSIFICATION SYSTEM CAN BE USED IN ALL PHASES OF PERSONNEL ADMINISTRATION (SECTION 5101(2)).

BASICALLY, 5 U.S.C. CHAPTER 51 REQUIRES THAT THE OFFICE OF PERSONNEL MANAGEMENT DEVELOP AND INDIVIDUAL AGENCIES APPLY STANDARDS FOR PLACING POSITIONS INTO APPROPRIATE CLASSES AND GRADES. /42/ THE TERM "CLASS" IS DEFINED IN 5 U.S.C. SEC. 5102(A)(4) AS INCLUDING ALL POSITIONS WHICH ARE SUFFICIENTLY SIMILAR AS TO KIND OR SUBJECT MATTER OF WORK, LEVEL OF DIFFICULTY AND RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS TO WARRANT SIMILAR TREATMENT IN PAY AND PERSONNEL ADMINISTRATION. A "GRADE," AS DEFINED IN 5 U.S.C. SEC. 5102(A)(5), INCLUDES CLASSES OF POSITIONS WHICH, ALTHOUGH DISSIMILAR WITH RESPECT TO KIND OR SUBJECT MATTER OF THE WORK, ARE SUFFICIENTLY EQUIVALENT IN TERMS OF DIFFICULTY, RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS TO WARRANT THEIR INCLUSION WITHIN ONE RANGE OF RATES OF BASIC PAY IN THE GENERAL SCHEDULE. THE 18 GRADES COMPOSING THE GENERAL SCHEDULE ARE DESCRIBED IN 5 U.S.C. SEC. 5104, WITH GRADE LEVELS ARRANGED HIERARCHICALLY ACCORDING TO THE DIFFICULTY, RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS OF THE WORK INVOLVED.

COMPARISON OF STATUTORY OBJECTIVES

(1) "EQUAL PAY FOR EQUAL WORK" OBJECTIVES

THE CLASSIFICATION PRINCIPLES EXPRESSED IN 5 U.S.C. CHAPTER 51 ARE SIMILAR TO THE EQUAL PAY ACT INSOFAR AS 5 U.S.C. SEC. 5101(1)(A) REQUIRES "EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK." WHILE THE CONCEPT OF SUBSTANTIALLY EQUALITY IS NOT DEFINED IN 5 U.S.C. SEC. 5101 OR ELSEWHERE IN CHAPTER 51, REVIEW OF THE LEGISLATIVE HISTORY OF SECTION 5101(1)(A) AND SOME INTERPRETIVE CASE LAW SUGGESTS THAT THE REACH OF THE CONCEPT IS SIMILAR TO THAT OF THE EQUAL PAY ACT'S "EQUAL WORK" STANDARD.

THE PROVISIONS OF 5 U.S.C. 5101(1)(A) HAD THEIR GENESIS IN THE CLASSIFICATION ACT OF 1923, WHICH ESTABLISHED THE FIRST GOVERNMENT-WIDE CLASSIFICATION SYSTEM AND PROVIDED IN SECTION 4 THAT, "THE PRINCIPLE OF EQUAL COMPENSATION FOR EQUAL WORK IRRESPECTIVE OF SEX SHALL BE FOLLOWED." IN ENACTING THE 1923 LEGISLATION, CONGRESS EXPLAINED THAT ONE OF ITS PRIMARY OBJECTIVES WAS TO EQUALIZE PAY FOR EMPLOYEES PERFORMING THE SAME KIND OF WORK AND THUS REMEDY A PERVASIVE PROBLEM: IN THE ABSENCE OF CLASSIFICATION STANDARDS AND A UNIFORM PAY-SETTING SYSTEM, AGENCIES HAD BEEN ASSIGNING A NUMBER OF DIFFERENT JOB TITLES TO IDENTICAL POSITIONS AND THEN PAYING THOSE POSITIONS AT WIDELY DIVERGENT RATES. /43/ ACCORDING TO CONGRESS, THIS PAY INEQUALITY PROBLEM WAS LARGELY ATTRIBUTABLE TO THE FACT THAT DURING WORLD WAR I SOME AGENCIES WERE FIXING SALARIES ACCORDING TO STATUTORY SCHEDULES WHILE OTHERS, PRIMARILY WAR-EXPANDED ESTABLISHMENTS, WERE FIXING SALARIES ON A PURELY DISCRETIONARY BASIS UNDER LUMP-SUM APPROPRIATIONS. /44/

ALTHOUGH COURTS DECIDING MISCLASSIFICATION CLAIMS BASED ON 5 U.S.C. SEC. 5101(1)(A) HAVE NOT PRECISELY DEFINED THE COVERAGE OF THE PROVISION, THEY HAVE SUGGESTED THAT, CONSISTENT WITH ITS LEGISLATIVE HISTORY, SEC. 5101(1)(A) SHOULD BE READ AS PROHIBITING A GRADE DISPARITY BETWEEN JOBS INVOLVING THE SAME OR SUBSTANTIALLY SIMILAR DUTIES. THUS, ONE COURT CHARACTERIZED SECTION 5101 (1)(A) AS PROHIBITING AGENCIES FROM "ARBITRARILY CLASSIFYING IDENTICAL WORK DIFFERENTLY", /45/ AND ANOTHER STATED THAT A GRADE DISPARITY MUST BE JUSTIFIED WHERE THE POSITIONS IN QUESTION "HAVE A LARGE NEXUS OF DUTIES SHARED IN COMMON." /46/

ALTHOUGH THE EQUAL PAY ACT AND 5 U.S.C. SEC. 5101(1)(A) ARE SIMILAR IN THAT THEY BOTH PROHIBIT UNEQUAL PAY FOR SUBSTANTIALLY EQUAL WORK, THE REMEDIES AVAILABLE UNDER EACH STATUTE ARE DISTINCTLY DIFFERENT. THE EQUAL PAY ACT, AS A REMEDIAL ANTI-DISCRIMINATION STATUTE, ENTITLES A PLAINTIFF TO MONEY DAMAGES FOR ITS BREACH. IN CONTRAST, THE SUPREME COURT HAS HELD THAT THE PRINCIPLE OF "EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK" STATED IN 5 U.S.C. SEC. 5101(1)(A) DOES NOT VEST INDIVIDUAL EMPLOYEES WITH AN ENTITLEMENT TO BACKPAY FOR A PERIOD OF WRONGFUL CLASSIFICATION. /47/ IF AN EMPLOYEE HAS BEEN MISCLASSIFIED IN VIOLATION OF SECTION 5101(1)(A), HIS OR HER ONLY REMEDY UNDER THE STATUTE IS TO SECURE PROSPECTIVE RELIEF. JUDICIALLY-FASHIONED PROSPECTIVE RELIEF WOULD CONSIST OF AN ORDER DIRECTING THE OFFICE OF PERSONNEL MANAGEMENT OR THE CLASSIFYING AGENCY TO COMPARE THE POSITIONS IN QUESTION WITH THE INSTRUCTION THAT, IF THE POSITIONS ARE IN FACT DETERMINED TO BE "IDENTICAL IN SIGNIFICANT REQUIREMENTS," THE AGENCY MUST RECLASSIFY THEM AT THE SAME GRADE LEVEL. /48/

ADDITIONALLY, WHILE THE EQUAL PAY ACT SPECIFICALLY PROHIBITS AN EMPLOYER FROM REDUCING THE WAGE RATE OF ANY EMPLOYEE IN ORDER TO COMPLY WITH THE MANDATE OF "EQUAL PAY FOR EQUAL WORK," NO SUCH PROHIBITION APPLIES WHEN POSITIONS ARE RECLASSIFIED IN ORDER TO SATISFY THE EQUAL PAY REQUIREMENT STATED IN 5 U.S.C. SEC. 5101(1)(A). IF AN AGENCY DISCOVERS THAT POSITIONS INVOLVING SUBSTANTIALLY THE SAME DUTIES HAVE BEEN CLASSIFIED AT DIFFERENT GRADE LEVELS IN VIOLATION OF SECTION 5101(1)(A), IT MAY RECLASSIFY THE HIGHER-GRADED POSITION AT THE LOWER LEVEL. /49/

OTHER OBJECTIVES OF 5 U.S.C. CHAPTER 51

OTHER PRINCIPLES EXPRESSED IN 5 U.S.C. CHAPTER 51 ARE BROADER THAN THE EQUAL PAY ACT'S REQUIREMENT OF "EQUAL PAY FOR EQUAL WORK" IN THAT THEY REFLECT A BASIC TENET OF POSITION-CLASSIFICATION:THE WORTH OF A POSITION, MEASURED IN TERMS OF ITS DUTIES AND RESPONSIBILITIES, SHOULD DETERMINE THE PAY OF JOB INCUMBENTS. /50/ IN THE CLASSIFICATION ACT OF 1923, CONGRESS DEFINED THE BASIC MEASUREMENTS OF JOB WORTH AS THE DIFFICULTY, RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS ASSOCIATED WITH A POSITION. THESE DEFINITIONS OF JOB WORTH, AS RETAINED BY THE CLASSIFICATION ACT OF 1949 AND CODIFIED IN 5 U.S.C. CHAPTER 51, CONSTITUTE A SINGLE "YARDSTICK" FOR EVALUATING, CLASSIFYING, AND GRADING THE HUNDREDS OF DIFFERENT OCCUPATIONS SUBJECT TO THE GENERAL SCHEDULE SYSTEM. /51/

AS DISCUSSED PREVIOUSLY, THE EQUAL PAY ACT DOES NOT REQUIRE EQUAL PAY FOR DISSIMILAR JOBS OF EQUIVALENT VALUE. IN CONTRAST, THERE ARE VARIOUS PROVISIONS IN 5 U.S.C. CHAPTER 51 WHICH, DESPITE A LACK OF EXPLANATORY LEGISLATIVE HISTORY, CONTAIN LANGUAGE WHICH STRONGLY INDICATES THAT AN OBJECTIVE OF THE GENERAL SCHEDULE SYSTEM IS TO ALIGN PAY WITH JOB WORTH. AS NOTED PREVIOUSLY, 5 U.S.C. SEC. 5102(A)(5) DEFINES A "GRADE" AS CONSISTING OF ALL POSITIONS WHICH, ALTHOUGH DIFFERENT WITH RESPECT TO KIND OR SUBJECT MATTER OF WORK, ARE SUFFICIENTLY EQUIVALENT AS TO LEVEL OF DIFFICULTY, RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS TO WARRANT THEIR INCLUSION WITHIN ONE RANGE OF RATES OF BASIC PAY IN THE GENERAL SCHEDULE. SECTION 5104 BROADLY DEFINES EACH OF THE 18 GRADES COMPOSING THE GENERAL SCHEDULE ACCORDING TO THE DIFFICULTY AND RESPONSIBILITY OF THE WORK PERFORMED AT THAT LEVEL, WITH THE INDIVIDUAL GRADE LEVEL DEFINITIONS PROVIDING THAT A GRADE IS TO INCLUDE NOT ONLY THOSE POSITIONS INVOLVING GENERAL JOB CHARACTERISTICS DESCRIBED IN THE STATUTE BUT ALSO THOSE POSITIONS INVOLVING WORK OF "EQUAL IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY, AND REQUIRING COMPARABLE QUALIFICATIONS." /52/ IN ACCORDANCE WITH SECTION 5101(1)(B), DISTINCTIONS BETWEEN GRADE LEVELS MUST REFLECT AND BE PROPORTIONATE TO SUBSTANTIAL DIFFERENCES IN THE DIFFICULTY, RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS OF THE WORK PERFORMED. IDEALLY THEN, THE IMPLEMENTATION OF 5 U.S.C. CHAPTER 51 SHOULD RESULT NOT ONLY IN EQUAL PAY FOR EQUAL WORK, BUT ALSO IN (1) EQUAL PAY FOR DIFFERENT WORK WHICH IS VALUED EQUALLY IN TERMS OF DIFFICULTY, RESPONSIBILITY AND QUALIFICATION REQUIREMENTS, AND (2) PROPORTIONATE PAY FOR WORK THAT DIFFERS IN VALUE. IT SHOULD BE NOTED, HOWEVER, THAT AN INDIVIDUAL EMPLOYEE WOULD NOT BE ABLE TO ENFORCE THESE POLICY OBJECTIVES THROUGH A SUIT FOR MONEY DAMAGES. AS INDICATED PREVIOUSLY, THE SUPREME COURT HAS HELD THAT NEITHER THE CLASSIFICATION PRINCIPLES STATED IN 5 U.S.C. SEC. 5101 NOR ANY OF THE OTHER PROVISIONS IN 5 U.S.C. CHAPTER 51 CREATE AN ENTITLEMENT TO BACKPAY FOR A PERIOD OF WRONGFUL CLASSIFICATION. /53/

APPENDIX III

DESCRIPTION OF THE JOB EVALUATION POLICY ACT OF 1970

THE JOB EVALUATION POLICY ACT OF 1970, /54/ SET OUT AS A NOTE TO 5 U.S.C. SEC. 5104, WAS A TEMPORARY MEASURE DESIGNED TO ESTABLISH A PROCEDURE FOR STUDYING AND IMPROVING FEDERAL CLASSIFICATION PROCEDURES WITHOUT EFFECTING ANY CHANGE IN EXISTING CLASSIFICATION LAWS. /55/ ESSENTIALLY, THE ACT DIRECTED THE THEN CIVIL SERVICE COMMISSION (CSC) TO APPOINT A SPECIAL ORGANIZATIONAL UNIT WHICH WOULD BE RESPONSIBLE FOR PREPARING A COMPREHENSIVE PLAN FOR THE ESTABLISHMENT OF A COORDINATED SYSTEM OF JOB EVALUATION AND RANKING FOR CIVILIAN POSITIONS WITHIN THE EXECUTIVE BRANCH. IN SECTION 101 OF THE ACT, CONGRESS EXPLAINED THE NECESSITY FOR A COORDINATED JOB EVALUATION AND RANKING SYSTEM BY RECITING THE FOLLOWING FINDINGS:

(1) THE TREMENDOUS GROWTH OF THE FEDERAL GOVERNMENT, AND THE CONCOMITANT INCREASE IN AND DIVERSIFICATION OF OCCUPATIONS AND PROFESSIONS, WAS NOT CONTEMPLATED BY THE CLASSIFICATION ACT OF 1923. IN ORDER TO ADAPT TO THE DIVERSE AND CONSTANTLY CHANGING NATURE OF FEDERAL OCCUPATIONS, THE GOVERNMENT MUST REASSESS ITS APPROACH TO JOB EVALUATION AND RANKING;

(2) THE LARGE NUMBER AND VARIETY OF JOB EVALUATION AND RANKING SYSTEMS WITHIN THE EXECUTIVE BRANCH HAVE RESULTED IN SIGNIFICANT INEQUITIES IN SELECTION, PROMOTION, AND PAY OF EMPLOYEES IN COMPARABLE POSITIONS;

(3) LITTLE EFFORT HAS BEEN MADE BY THE CONGRESS OR THE EXECUTIVE BRANCH TO CONSOLIDATE THE VARIOUS SYSTEMS FOR JOB EVALUATION AND RANKING. THERE HAS BEEN NO PROGRESS TOWARD THE ESTABLISHMENT OF A COORDINATED SYSTEM IN WHICH JOB EVALUATION AND RANKING ARE RELATED TO A UNIFIED SET OF PRINCIPLES PROVIDING COHERENCE AND EQUITY THROUGHOUT THE EXECUTIVE BRANCH;

(4) WITHIN THE EXECUTIVE BRANCH, THERE HAS BEEN NO EXPERIMENTATION WITH RECOGNIZED METHODS OF JOB EVALUATION AND RANKING TO DETERMINE WHICH OF THOSE METHODS IS MOST APPROPRIATE FOR APPLICATION IN THE FEDERAL GOVERNMENT; AND

(5) THE FEDERAL GOVERNMENT HAS NOT ACTED ON RECOMMENDATIONS RESULTING FROM "THE VARIOUS STUDIES CONDUCTED DURING THE LAST TWENTY YEARS" WHICH RELATED TO JOB EVALUATION AND RANKING SYSTEMS WITHIN THE EXECUTIVE BRANCH.

IN SECTION 201 OF THE ACT, CONGRESS EXPLAINED THE LEGISLATION'S POLICY OBJECTIVES BY STATING THAT: (1) TO THE GREATEST EXTENT POSSIBLE, ALL CIVILIAN POSITIONS IN THE EXECUTIVE BRANCH SHOULD BE COVERED BY A COORDINATED JOB EVALUATION AND RANKING SYSTEM; (2) THE SYSTEM SHOULD BE DESIGNED SO AS TO UTILIZE METHODS OF JOB EVALUATION AND RANKING WHICH ARE APPROPRIATE TO THE EXECUTIVE BRANCH, WITH CONSIDERATION GIVEN TO THE VARIOUS OCCUPATIONAL GROUPINGS WITHIN THAT BRANCH; AND (3) THE CSC SHOULD BE AUTHORIZED TO EXERCISE GENERAL SUPERVISION AND CONTROL OVER THE SYSTEM.

SECTION 301 OF THE ACT DIRECTED THE CSC, THROUGH ITS SPECIAL ORGANIZATIONAL UNIT, TO PREPARE A COMPREHENSIVE JOB EVALUATION AND RANKING PLAN WHICH WOULD INCLUDE THE FOLLOWING FEATURES:

(1) PROVISION FOR THE ESTABLISHMENT OF A METHODOLOGY FOR EVALUATING JOBS AND ALIGNING THEM BY LEVEL;

(2) A TIMETABLE FOR THE CONVERSION OF EXISTING JOB EVALUATION AND RANKING SYSTEMS INTO THE COORDINATED SYSTEM;

(3) PROVISION THAT THE CSC WOULD HAVE GENERAL CONTROL OVER THE COORDINATED SYSTEM;

(4) PROCEDURES ENABLING THE CSC TO CONDUCT PERIODIC REVIEWS OF METHODS ADOPTED UNDER THE SYSTEM; AND

(5) PROVISION FOR MAINTENANCE OF THE SYSTEM TO MEET THE CHANGING NEEDS OF THE EXECUTIVE BRANCH.

SECTION 304 OF THE ACT PROVIDED THAT, WITHIN 2 YEARS AFTER THE DATE OF ENACTMENT (MARCH 17, 1970), THE CSC WOULD REPORT ITS ORGANIZATIONAL UNIT'S FINDINGS AND RECOMMENDATIONS TO THE PRESIDENT. THE PRESIDENT WOULD THEN SUBMIT THE REPORT ALONG WITH HIS OWN RECOMMENDATIONS TO THE CONGRESS, AND, UPON THIS SUBMISSION, THE SPECIAL ORGANIZATIONAL UNIT ESTABLISHED BY CSC WOULD CEASE TO EXIST.

FOLLOWING ENACTMENT OF THE JOB EVALUATION POLICY ACT OF 1970, THE CSC ESTABLISHED A SPECIAL ORGANIZATIONAL UNIT WHICH BECAME KNOWN AS THE JOB EVALUATION AND PAY REVIEW TASK FORCE. THE TASK FORCE'S REPORT, RELEASED IN 1972, RECOMMENDED THE IMPLEMENTATION OF A NEW "FACTOR RANKING" JOB EVALUATION SYSTEM FOR THE FEDERAL GOVERNMENT. /56/ THE PROPOSED SYSTEM WAS DESIGNED AND TESTED IN 1973 AND 1974, AND, IN DECEMBER 1975, THE CSC DECIDED TO IMPLEMENT WHAT IS NOW KNOWN AS THE FACTOR EVALUATION SYSTEM. /57/ THE FACTOR EVALUATION SYSTEM IS USED TO CLASSIFY CERTAIN NONSUPERVISORY POSITIONS UNDER THE GENERAL SCHEDULE. /58/

APPENDIX IV

MERIT SYSTEM PRINCIPLE REQUIRING "EQUAL PAY FOR WORK OF EQUAL VALUE"

THE CIVIL SERVICE REFORM ACT OF 1978 ESTABLISHED NINE "MERIT SYSTEM PRINCIPLES" WITH WHICH FEDERAL PERSONNEL MANAGEMENT "SHOULD BE" CONSISTENT. /59/ THE PRINCIPLES, CODIFIED IN 5 U.S.C. SEC. 2301(B) (1982), GOVERN VARIOUS PHASES OF PERSONNEL ADMINISTRATION, INCLUDING THE RECRUITMENT, HIRING, COMPENSATION, ADVANCEMENT, AND DISCHARGE OF FEDERAL EMPLOYEES. WITH RESPECT TO COMPENSATION PRACTICES, 5 U.S.C. SEC. 2301(B)(3) PROVIDES THAT:

"EQUAL PAY SHOULD BE PROVIDED FOR WORK OF EQUAL VALUE, WITH APPROPRIATE CONSIDERATION OF BOTH NATIONAL AND LOCAL RATES PAID BY EMPLOYERS IN THE PRIVATE SECTOR, AND APPROPRIATE INCENTIVES AND RECOGNITION SHOULD BE PROVIDED FOR EXCELLENCE IN PERFORMANCE."

ON ITS FACE, THE MERIT SYSTEM PRINCIPLE STATED IN SECTION 2301(B)(3) IS BROADER THAN THE EQUAL PAY ACT'S "EQUAL PAY FOR EQUAL WORK" REQUIREMENT BECAUSE IT APPLIES TO JOBS WHICH ARE EQUAL IN "VALUE." WHILE THE SPARSE LEGISLATIVE HISTORY OF SECTION 2301(B)(3) DOES NOT PROVIDE ANY INSIGHT INTO CONGRESS' RATIONALE FOR FRAMING THE EQUAL PAY PRINCIPLE IN TERMS OF JOB "VALUE," /60/ THE USE OF THE TERM "VALUE" INDICATES THAT THE OBJECTIVE OF SECTION 2301(B)(3), LIKE THAT OF THE CLASSIFICATION STATUTES DISCUSSED IN THE LAST SECTION OF APPENDIX II, IS TO REQUIRE EQUAL PAY FOR WORK WHICH DIFFERS IN SUBJECT MATTER BUT IS NEVERTHELESS VALUED EQUALLY.

IT APPEARS, HOWEVER, THAT THE EQUAL PAY PRINCIPLE STATED IN SECTION 2301(B)(3) DOES NOT HAVE AN INDEPENDENT LEGAL EFFECT. IN THE CONFERENCE REPORT ACCOMPANYING THE CIVIL SERVICE REFORM ACT OF 1978, THE CONFEREES STATED WITH RESPECT TO THE MERIT SYSTEM PRINCIPLES IN GENERAL THAT:

"UNLESS A LAW, RULE OR REGULATION IMPLEMENTING OR DIRECTLY CONCERNING THE PRINCIPLES IS VIOLATED *** THE PRINCIPLES THEMSELVES MAY NOT BE MADE THE BASIS OF A LEGAL ACTION BY AN EMPLOYEE OR AGENCY." /61/

CITING THIS EXPRESSION OF LEGISLATIVE INTENTION, THE MERIT SYSTEMS PROTECTION BOARD HAS HELD THAT THE MERIT SYSTEM PRINCIPLES ARE NOT "SELF- EXECUTING" BUT MAY FORM THE BASIS FOR A LEGAL ACTION ONLY IF AN IMPLEMENTING LAW, RULE, OR REGULATION HAS BEEN VIOLATED. /62/ SIMILARLY, IN FAVORS V. RUCKELSHAUS, /63/ THE DISTRICT COURT REJECTED A CLAIM BASED ON THE PRINCIPLE OF "EQUAL PAY FOR WORK OF EQUAL VALUE" AND ANOTHER MERIT SYSTEM PRINCIPLE, STATING THAT THE PRINCIPLES DO "*** NOT APPEAR TO CREATE A STATUTORY PRIVATE RIGHT OF ACTION OR *** ANY SUBSTANTIVE RIGHTS." /64/

ACCORDINGLY, IT APPEARS THAT THE "EQUAL PAY" PRINCIPLE STATED IN 5 U.S.C. SEC. 2301(B)(3) DOES NOT, IN ITSELF, CONFER ANY SUBSTANTIVE RIGHTS ON INDIVIDUAL EMPLOYEES.

/1/ OPTIONS FOR CONDUCTING A PAY EQUITY STUDY OF FEDERAL PAY AND CLASSIFICATION SYSTEMS (GAO/GDD-85-37, MARCH 1, 1985) (HEREINAFTER CITED AS "REPORT").

/2/ 452 U.S. 161 (1981).

/3/ SEE REPORT AT 74.

/4/ ID. AT 74, 75.

/5/ 578 F.SUPP. 846 (W.D. WASH. 1983).

/6/ 740 F.2D 686 (9TH CIR. 1984).

/7/ SEE REPORT AT 79-81.

/8/ SEE ID. AT 81, 82.

/9/ ALTHOUGH YOU ALSO REQUESTED THAT WE REVIEW RECENT PAY EQUITY CASES INVOLVING THE FEDERAL GOVERNMENT, WE ARE NOT AWARE OF ANY SUCH CASES.

/10/ 770 F.2D 1401 (9TH CIR. 1985).

/11/ ID. AT 1405, 1406.

/12/ ID. AT 1406.

/13/ID. AT 1406, 1407.

/14/ ID. AT 1407.

/15/ ID.

/16/ ID. AT 1408.

/17/ 606 F.SUPP. 1313 (N.D. ILL. 1985), REV'D, 783 F.2D 716 (7TH CIR. 1986).

/18/ 606 F.SUPP. 1313, 1316.

/19/ ID. AT 1316-1319.

/20/ ID. AT 1318.

/21/ ID.

/22/ 783 F.2D 716.

/23/ ID. AT 720-723.

/24/ ID. AT 724, 725.

/25/ 609 F.SUPP. 695 (E.D.N.Y. 1985).

/26/ ID. AT 708.

/27/ ID. AT 711.

/28/ ID. AT 709-711.

/29/ ID. AT 712.

/30/ NO. 84-1314 (D. HAWAII, AUG. 12, 1985).

/31/ ID., SLIP OP. AT 1.

/32/ NO. C-84-7275 (N.D. CAL., SEPT. 13, 1985).

/33/ ID., SLIP OP. AT 27 N. 1.

/34/ ID.

/35/ NO. 85-CV75483 (E.D. MICH. FILED NOV. 27, 1985).

/36/ NO. 85-7418 (E.D. PA. FILED DEC. 26, 1985).

/37/ A DETAILED DISCUSSION OF THE LEGISLATIVE HISTORY OF THE EQUAL PAY ACT CAN BE FOUND IN COUNTY OF WASHINGTON V. GUNTHER, 452 U.S. 161, 184-188 (1981) (REHNQUIST, J., DISSENTING); AND ANGELO V. BACHARACH INSTRUMENT COMPANY, 555 F.2D 1164, 1173-1176 (3RD CIR. 1977).

/38/ SEE SHULTZ V. WHEATON GLASS CO., 421 F.2D 259 (3RD CIR.), CERT. DENIED, 398 U.S. 905 (1970); BRENNAN V. PRINCE WILLIAM HOSPITAL CORP., 503 F.2D 282 (4TH CIR. 1974), CERT. DENIED, 420 U.S. 972 (1975).

/39/ SEE ANGELO V. BACHARACH INSTRUMENT CO., CITED IN NOTE 1. SEE ALSO HODGSON V. GOLDEN ISLES CONVALESCENT HOMES, INC., 468 F.2D 1256, 1258 (5TH CIR. 1972) ("IT IS NOT MERELY COMPARABLE SKILL AND RESPONSIBILITY THAT CONGRESS SOUGHT TO ADDRESS, BUT A SUBSTANTIALLY IDENTITY OF JOB FUNCTIONS".)

/40/ PUB.L. NO. 81-429, 63 STAT. 954, OCTOBER 28, 1949.

/41/ PUB.L. NO. 67-516, 42 STAT. 1488, MARCH 4, 1923.

/42/ FOR A DETAILED DISCUSSION OF THE CLASSIFICATION PROCESS, SEE DESCRIPTION OF SELECTED SYSTEMS FOR CLASSIFYING FEDERAL CIVILIAN POSITIONS AND PERSONNEL (GAO/GGD-84-90, JULY 13, 1984).

/43/ 61 CONG.REC. 7,722 (1921) (STATEMENT OF REP. LEHLBACH);

62 CONG.REC. 383 (1921) (STATEMENT OF REP. LEHLBACH);

62 CONG.REC. 422 (1921) (STATEMENT OF REP. COOPER); AND

64 CONG.REC. 5,084 (1923) (STATEMENT OF SEN. STERLING).

THE PAY INEQUALITY PROBLEM HAD BEEN DISCLOSED TO THE CONGRESS BY THE CONGRESSIONAL JOINT COMMISSION ON RECLASSIFICATION OF SALARIES, WHICH HAD BEEN ESTABLISHED BY LEGISLATION IN 1919 AND CHARGED WITH THE RESPONSIBILITY OF INVESTIGATING FEDERAL CIVILIAN PAY PRACTICES. SEE S. REP. NO. 486, 67TH CONG., 2D SESS. 2 (1922). THE COMMISSION'S FINDINGS ISSUED IN 1920, AS QUOTED IN THE SENATE REPORT, INCLUDED THE FOLLOWING:

"1. THAT THE SALARY AND WAGE RATES FOR POSITIONS INVOLVING LIKE DUTIES AND RESPONSIBILITIES AND CALLING FOR THE SAME QUALIFICATIONS (THAT IS, FOR POSITIONS OF THE SAME CLASS) SHOW WIDE VARIATIONS AND MARKED INEQUALITIES.

"2. THAT THE SALARY AND WAGE RATES FOR POSITIONS OF THE SAME CLASS ARE DIFFERENT IN DIFFERENT DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS, THE SCALE OF PAY IN SOME DEPARTMENTS BEING MARKEDLY HIGHER THAN THE SCALE FOR THE SAME CLASS OF WORK IN OTHER DEPARTMENTS." S.REP. NO. 486, 67TH CONG., 2D SESS. 3 (1922).

/44/ 61 CONG.REC. 7,735 (1921) (STATEMENT OF REP. MONDELL);

61 CONG.REC. 7,738 (1921) (STATEMENTS OF REP. SISSON);

64 CONG.REC. 5,108 (1923) (STATEMENTS OF SENS. JONES AND MOSES).

/45/ HANEKE V. SECRETARY OF HEALTH, EDUC. & WELFARE, 535 F.2D 1291, 1298 (D.C. CIR. 1976).

/46/ TESTAN V. UNITED STATES, 499 F.2D 690, 691 (CT.CL. 1974), REV'D ON OTHER GROUNDS, 424 U.S. 392 (1976).

/47/ UNITED STATES V. TESTAN, 424 U.S. 392, 398-405 (1976).

/48/ HANEKE, CITED IN NOTE 9, 535 F.2D AT 1298, 1299.

/49/ SEE ID. AT 1299.

/50/ SEE DESCRIPTION OF SELECTED SYSTEMS FOR CLASSIFYING FEDERAL CIVILIAN POSITIONS AND PERSONNEL (GAO/GDD-84-90, JULY 13, 1984) AT 2; AND OPTIONS FOR CONDUCTING A PAY EQUITY STUDY OF FEDERAL PAY AND CLASSIFICATION SYSTEMS (GAO/GGD-85-37, MARCH 1, 1985) AT 6.

/51/ FOR A GENERAL DISCUSSION OF THE WORTH-ORIENTED CHARACTERISTICS OF THE GENERAL SCHEDULE SYSTEM, SEE THE "ROCKERFELLER PANEL'S" REPORT ENTITLED STAFF REPORT OF THE PRESIDENT'S PANEL ON FEDERAL COMPENSATION (GOVERNMENT PRINTING OFFICE, JANUARY 1976) AT 1, 27. SEE ALSO KATZ, WHY NOT EQUAL PAY?, WOMEN IN ACTION, NOV. - DEC. 1979, AT 1.

/52/ FOR EXAMPLE, 5 U.S.C. SEC. 5104(6) PROVIDES THAT:

"GRADE GS-6 INCLUDES THOSE CLASSES OF POSITIONS THE DUTIES OF WHICH ARE -

"(A) TO PERFORM UNDER GENERAL SUPERVISION, DIFFICULT AND RESPONSIBLE WORK IN OFFICE, BUSINESS, OR FISCAL ADMINISTRATION, OR COMPARABLE SUBORDINATE TECHNICAL WORK IN A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL FIELD, REQUIRING IN EITHER CASE - "(I) CONSIDERABLE TRAINING AND SUPERVISORY OR OTHER EXPERIENCE;

"(II) BROAD WORKING KNOWLEDGE OF A SPECIAL AND COMPLEX SUBJECT MATTER, PROCEDURE, OR PRACTICE, OR OF THE PRINCIPLES OF THE PROFESSION, ART OR SCIENCE INVOLVED; AND

"(III) TO A CONSIDERABLE EXTENT THE EXERCISE OF INDEPENDENT JUDGMENT; OR

"(B) TO PERFORM OTHER WORK OF EQUAL IMPORTANCE, DIFFICULTY, AND RESPONSIBILITY, AND REQUIRING COMPARABLE QUALIFICATIONS." /53/ TESTAN, CITED IN NOTE 11, 423 U.S. AT 398-405.

/54/ PUB.L. NO. 91-216, 84 STAT. 72, MARCH 17, 1970.

/55/ SEE S.REP. NO. 713, 91ST CONG., 2D SESS. 1 (1970); AND H.R.REP. NO. 823, 91ST CONG., 2D SESS. 2 (1970).

/56/ SEE REPORT OF THE JOB EVALUATION AND PAY REVIEW TASK FORCE TO THE U.S. CIVIL SERVICE COMMISSION, SUBCOMM. ON EMPLOYEE BENEFITS OF THE HOUSE COMM. ON POST OFFICE AND CIVIL SERVICE, 92D CONG., 2D SESS. 8 (COMM. PRINT 1972).

/57/ SEE DESCRIPTION OF SELECTED SYSTEMS FOR CLASSIFYING FEDERAL CIVILIAN POSITIONS AND PERSONNEL (GAO/GGD-84-90, JULY 13, 1984), APP. I AT 1.2.

/58/SEE GENERALLY ID., APP. II AT 9-11.

/59/ PUB.L. NO. 94-454, SEC. 101(A), 92 STAT. 1113, OCTOBER 13, 1978.

/60/ THE HOUSE COMMITTEE REPORT EXPLAINED THE MEANING OF THE EQUAL PAY PRINCIPLE SIMPLY BY STATING THAT "THE PRINCIPLE OF EQUAL PAY FOR EQUAL WORK SHALL BE CONTINUED AS A BASIC PAY POLICY ***." H.R. REP. NO. 1403, 95TH CONG., 2D SESS. 4, REPRINTED IN LEGISLATIVE HISTORY OF CSRA AT 641. SIMILARLY, THE SENATE COMMITTEE EXPLAINED ONLY THAT:

"EMPLOYEES ARE TO BE COMPENSATED EQUITABLY, WITH CONSIDERATION GIVEN TO BOTH NATIONAL AND LOCAL RATES PAID BY EMPLOYERS OUTSIDE THE FEDERAL GOVERNMENT. NO CHANGE IN CURRENT LAW IN THIS REGARD IS INTENDED. ***"

S.REP. NO. 969, 95TH CONG., 2D SESS. 19, REPRINTED IN LEGISLATIVE HISTORY OF CSRA AT 1483.

/61/ H.R. REP. NO. 95-1717, 95TH CONG., 2D SESS. 128, REPRINTED IN LEGISLATIVE HISTORY OF CSRA AT 1970.

/62/ WELLS V. HARRIS, 1 MSPB 199, 203, 228-230 (1978).

/63/ 569 F.SUPP. 363 (N.D. GA. 1983).

/64/ ID. AT 369.