decided: August 1, 1980.
INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO-CLC, AN UNINCORPORATED ASSOCIATION, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO-CLC, LOCAL 449, AN UNINCORPORATED ASSOCIATION, INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO-CLC, LOCAL 627, AN UNINCORPORATED ASSOCIATION, H. J. ADAMS, GENEVIEVE ARNETT, JOSEPHINE BAKER, MARGE DINNAN BROPHY, HENRIETTA BROWN, DOROTHY M. BURTON, MINNIE CHATMAN, MARY E. COBB, A. CONTENTO, MELVINA COOPER, JEAN CORBIN, NORMA DOYLE, ELEANOR DYE, TANYA FOURSHEE, D. FOWLER, DOROTHY GAINES, MARTHA GANT, MADELINE GIESE, L. M. HARRIS, DOROTHY HAYES, ELEANOR HUNKER, PAULINE LEE, J. LINDENTHAL, OLLIE LITTLE, MADELINE MARTINO, D. P. MASSI, RENA MCLEOD, S. MCNEIL, PATTI MITCHELL, ROBERTA MOORE, MABEL MORRELL, MILDRED OCIKI, HELEN O'LOUGHLIN, MARY PFISTER, ANN RAHO, R. RAINEAR, P. RUTOWSKI, LORETTA RYAN, J. L. SHELDON, V. VAUGHN, HELEN WALSH, AND SHIRLEY WATKINS, ON BEHALF OF THEMSELVES AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED
WESTINGHOUSE ELECTRIC CORPORATION A CORPORATION INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, CLC ("IUE") AND LOCALS 449 AND 627, APPELLANTS IN 79-1893 MARGE BROPHY, HENRIETTA BROWN, MELVINA COOPER, ANN RAHO FRAZIER AND HELEN WALSH, ON BEHALF OF THEMSELVES AND THE CLASS THEY REPRESENT, APPELLANTS IN 79-1894
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 75-1870)
Before Seitz, Chief Judge, and Van Dusen and Higginbotham, Circuit Judges.
The plaintiffs in this case brought suit alleging, inter alia, that the Westinghouse Electric Corporation (Westinghouse or the company) had set the wage rates lower for those job classifications which were predominantly filled by females than the wage rates for those job classifications which were predominantly filled by males. Plaintiffs claimed that this disparity was attributable to the fact that the company deliberately paid lower wages for those types of work which would be done predominantly by women. They claimed this disparity is in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2-2000h-6.*fn1 The district court held that Title VII did not prevent sex discrimination in setting wage rates for different categories of jobs unless it could be shown that the jobs, regardless of the reason for their classification, involved equal or substantially equal work. Because the plaintiffs had stated that they did not intend to prove that the jobs predominantly filled by women were the same as the jobs predominantly held by men, the court granted Westinghouse's motion for partial summary judgment. The plaintiffs appealed.
The instant case pushes us to the edge of subtle concepts of statutory construction. It involves sophisticated aspects of personnel policies and job classifications and it rests on a legislative history which is not totally free of ambiguity. Thus, at the outset it is essential that we make clear what is not involved in this case. Westinghouse is not being charged with the type of discrimination where different wages have been paid to men and women who are in the same classification and who perform the same work. For any classification which was predominantly filled by women, Westinghouse paid the same wage to any male who might work within that same classification. The problem here is that Westinghouse allegedly used a system which set the wage rates lower for any classification if the group covered within that category was predominantly female. Under the applicable law it is clear that Westinghouse could not create job classifications whereby different wages were paid to one group solely because of considerations of religion, race or national origin.*fn2 The statutory issue here is whether Congress intended to permit Westinghouse to willfully discriminate against women in a way in which it could not discriminate against blacks or whites, Jews or Gentiles, Protestants or Catholics, Italians or Irish, or any other group protected by the Act. Because we hold that this alleged intentional discrimination in formulating classifications of jobs violates Title VII, we will reverse.
Westinghouse's present wage structure, according to the plaintiffs,*fn3 is derived from a wage structure Westinghouse established in the late 1930's which was described in Westinghouse's Industrial Relations Manual Wage Administration, Part 3, section 3 (1939), reprinted in Appendix at 110. At that time all of the job classifications at Westinghouse's Trenton, New Jersey plant were allegedly segregated by sex. The "female" jobs included assembly line jobs, sub-assembly jobs and quality control jobs. The "male" jobs included janitor, forklift operator, warehouseman, various material handling jobs, and craft jobs. For simplicity we will refer to those job classifications which are predominantly filled by women as "female" jobs and those filled predominantly by men as "male" jobs. The 1939 manual explains that the company first "point-rated" all of its jobs taking into account the knowledge and training required, and the specific demands and responsibilities of the job. It then assigned each job a numerical value, based on an evaluation of these three factors. Next each job was assigned a "grade" based on its point rating and "keysheets" were developed which set forth the hourly wage for jobs at each labor grade. The plaintiffs contend that the wage rates for female jobs were set lower than the rates for male jobs which had received the same point rating. Indeed, Westinghouse's manual stated, "The rate or range for Labor Grades (for women) do not coincide with the values on the men's scale. Basically then, we have another wage curve or Key Sheet for women below and not parallel with the men's curve." Id. at 158a (emphasis added).
In 1965 the company established a unitary key sheet in which the grades had no explicit sexual designation. The plaintiffs contend that the new wage scale, which is still in use, embodies the deliberately discriminatory policy of the prior plan. In support of their view, they contend that Westinghouse expanded the number of labor grades from nine to thirteen and generally accorded female jobs labor grades in the new scale below those of male jobs even though these jobs had been at corresponding labor grades before the merger. They also point to the fact that the vast majority of the women at the Trenton plant are still employed in the female jobs. Their records show employee assignments at the Trenton plant as of November 30, 1975 as follows:
Westinghouse - Trenton Plant
Brief for Appellants at 10-11. This table shows that with a single exception the 183 employees working at Labor Grades 1 through 4 were women, the grades into which the female jobs were placed in 1965. Thus, eighty five percent of the women working in the plant in 1975 were assigned to these jobs. Although the plaintiffs acknowledge that "there have been some changes in job content over the years, and some rate adjustments," in their view "the changes have not eradicated the wage inequities established by the (1930) system." Id. at 10.
The district court held that Title VII had not been violated even if the wage scale had been set in the manner described by the plaintiffs. It reasoned that because of the Bennett Amendment, which is included in section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), sex-based discrimination in compensation violates Title VII only if it also violates the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (Equal Pay Act). The court held that the Equal Pay Act proscribes discriminatory compensation only when it is shown that the plaintiff performs the same work or substantially the same work of other employees. Since the plaintiffs in this case agreed that their suit did not involve classifications involving the same work or substantially the same work, the district court ruled that the plaintiffs did not have a cause of action under Title VII. International Union of Electrical Workers v. Westinghouse Electric Corp., 19 FEP Cases 450 (D.N.J.1979) (hereinafter IUE I ). The late Judge Barlow, one of our most distinguished trial judges, summarized his holding by stating, "In conclusion, therefore, we have ruled that allegations and proof of unequal pay for unequal, but comparable, work does not state a claim upon which relief can be granted . . . ." Id. at 457.
In response to a motion by the plaintiffs, the district court entered final judgment on this claim and certified an order so that it could be appealed pursuant to Rule 54(b), Fed.R.Civ.Proc.*fn4 International Union of Electrical Workers v. Westinghouse Electric Corp., 19 FEP Cases 1028 (D.N.J.1979) (hereinafter IUE II ).
Because it affects our jurisdiction we asked the parties to brief the question of whether the district court properly certified the judgment pursuant to Rule 54(b). We conclude that the district court did not abuse its discretion when it entered the final order. See Curtiss-Wright Corp. v. General Electric Corp., 446 U.S. 1, 100 S. Ct. 1460, 64 L. Ed. 2d 1 (1980). The district court noted that as a result of the earlier decision, IUE I, the claim of sex-based wage discrimination was terminated and the issue would not be raised a second time after a trial on the remaining claims. Noting that the claim was one of statutory construction and did "not deal with the factual issues at the heart of the unadjudicated claims," the court felt the issue was "sufficiently distinct to permit certification." IUE II, 19 FEP Cases at 1029-30. The court also took into consideration the fact ...
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