PAULA ANDERSON, Complainant
CITY OF SHEBOYGAN HEALTH DEPARTMENT, Respondent
On July 9, 1986, an administrative law judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter concluding that the Complainant had not been discriminated against because of her se with respect to overtime, training, or wages, nor had she been constructively discharged in violation of the Act. Complainant filed a timely petition for review of the Judge's decision and both parties subsequently filed written arguments with the Commission.
Based upon a review of the evidence in its entirety, the Labor and Industry Review Commission issues the following:
That the Judge's decision (copy attached) is affirmed subject to the discussion which follows below and shall stand as the FINAL ORDER herein.
Dated and mailed August 20, 1987
/s/ Hugh C. Henderson, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
The federal Equal Pay Act, 29 U.S.C. § 206(d), requires equal pay for equal work on jobs the performance of which require equal skill, effort and responsibility and which are performed under similar working conditions.
In order to make out a case under the Equal Pay Act a complainant must show that an employer pays different wages to employes of opposite sexes for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions. Corning Glass Works v. Brennan, 9 FEP Cases 919 (June 1974). Congress did not require that the jobs be identical but only that they must be substantially equal. Once the complainant has carried the burden of showing that the employer pays workers of one sex more than workers of the opposite sex for equal work, the burden shifts to the employer to show that the pay differential is justified under one of the Act's four exceptions. The Act establishes four exceptions: where different payment to employes of opposite sexes is made pursuant to (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex. Establishing an exemption is an affirmative defense on which the employer has the burden of proof.
In contrast, under Title VII of the Civil Rights Act of 1964, the burden of proof never shifts to the employer. McDonnell Douglas Corp. v. Green, 5 FEP Cases 965 (May 1973), sets forth the basic allocation of burdens and order of presentation of proof in a Title VII case. First, the complainant: has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the employer to articulate sane legitimate, nondiscriminatory reason for its actions. Third, the complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the complainant remains at: all times with the complainant. Texas Dept. of Community Affairs v. Burdine, 25 FEP Cases 113 (1 98'l).
While Title VII requires a showing of discriminatory intent, the Equal Pay Act creates a type of strict liability in that no intent to discriminate need be shown. Patkus v. Sangamon-Cass Consortium, 38 FEP Cases 1272, n. 5 (7th Cir. 1985).
In determining the legality of pay differentials under the Wisconsin Fair Employment Act (WFEA),, the Commission and the Wisconsin courts have looked to cases decided under the federal Equal Pay Act for guidance. Allison v. Jessen's Cleaners, (DILHR Commission, decided June 14, 1974); Walter v. DILHR, 2 EPD par. 1015, (Dane Co. Cir. Ct. 1969).
Allison was an equal pay case that involved a construction of the WFEA as it existed in 1971. The 1971 statute provided as follows:
"Discrimination' means discrimination because of . . . sex . . ." Sec. 111.32(5)(a)
"The prohibition against discrimination because of sex does not apply to the exclusive employment of one sex in positions where the nature of the work or working conditions provide valid reasons for hiring only men or women, or to a differential in pay between employes which is based in good faith on any factor other than sex." Sec. 111 .32(5) (d). (Emphasis added)
Effective October 1975 the WFEA provided as follows:
"Discrimination' means discrimination because of . . . sex . . ." Sec. 111 .32(5)(a)
"It is discrimination because of sex . . . (f)or an employer . . on the basis of sex where sex is not a bona fide occupational qualification, to discriminate against any individual in compensation paid for equal or substantially similar work . . Sec. 111.32(5)(g)lm.
"For the purposes of this paragraph, sex is a bona fide occupational qualification where all the members of one sex are physically incapable of performing the essential duties required by a job, or where the essence of the employer's business operation could be undermined if employes were not hired exclusively from one sex." Sec. 111.32(5)(g)5.
Currently (effective August 1982), the WFEA provides as follows:
"(N)o employer . . . may engage in any act of employment discrimination as specified in sec. 111.322 against any individual on the basis of . . . sex . . ." Sec. 111.321.
"(I)t is an act of employment discrimination to do any of the following: . . . to discriminate against any individual in . . . compensation . . . because of any basis enumerated in sec. 111.321." Sec. 111.322.
"Employment discrimination because of sex includes, but is not limited to . . . (d)iscriminating against any individual in . . . compensation paid for equal or substantially similar work . . . on the basis of sex where sex is not a bona fide occupational qualification." Sec. 111 .36(1 ) (a). (Emphasis added)
In finding that no unlawful wage discrimination had occurred in the instant case, the Administrative Law Judge concluded that the WFEA does not ipso facto incorporate the federal Equal Pay Act; that the allocation of burdens and order of presentation of proof utilized in Title VII cases, not the federal equal pay cases, should be followed.
The Administrative Law Judge concluded that this was so because Allison, supra, which is considered to hold that the Equal Pay Act is incorporated into the Wisconsin Fair Employment Act, concerns itself with a 1971 statute that contained language that "the prohibition against discrimination because of sex does not apply to . . . a differential in pay between employes which is based in good faith on any factor other than sex" (sec. 111 .32(5) (d)), language tracking the Equal Pay Act, while the applicable language of the WFEA now found in sec. 111 .36(1) (a), Wis. Stats., prohibits discrimination "against any individual in . . . compensation paid for equal or substantially similar work on the basis of sex." (Emphasis in original) Administrative Law Judge' s Memorandum Opinion, pp. 10-11. The Administrative Law Judge concluded that as a result of the change in the language of the WFEA, the WFEA no longer tracked the federal Equal Pay Act and therefore the issue here was not whether the employer pays a female less for performing the same work as a male, but whether sex was a factor in the decision on what to pay employes. In other words, whether the employer was guilty of intentional sex-based discrimination.
The Commission does not agree with the Administrative Law Judge's conclusion that the federal Equal Pay Act is not (or no longer) incorporated into the WFEA. At the same time that the Wisconsin Legislature removed s. 111 .32(5) (d) from the WFEA, the Legislature added new language stating that it was unlawful "for an employer . . . on the basis of sex . . . to discriminate against any individual in compensation paid for equal or substantially similar work . . . s. 111.32(5)(g)lm, Wis. Stats., 1975. (1) The federal Equal Pay Act prohibits discrimination ". . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . " 29 U.S.C 206(d) (1). The Commission believes that the new language in the WFEA tracks the federal Equal Pay Act even more closely than the language that existed in 1971. Both the WFEA and the federal Equal Pay Act embody the equal pay for equal work concept. "The WFEA uses the phrase 'equal or substantially similar.' The Equal Pay Act employs the phrase 'equal skill, effort, and responsibility, and . . . performed under similar working conditions." Hiegel v. LIRC, 121 Wis. 2d 205, 35 N.W. 2d 405 (1984). When a wage discrimination claim such as this one where there is an allegation of unequal compensation for work that is substantially similar to someone of the opposite sex, the WFEA is properly construed by reference to the standards developed under the federal Equal Pay Act. Hiegel, supra.
Moreover, it has been held that even where an equal pay claim is brought under Title VII, Equal Pay Act standards apply. Kouba v. Allstate Insurance Co., 523 F. Supp. 148, 26 FEP Cases 1273 (E.D. CA 1981), reversed on other grounds, 691 F.2d 873, 30 FEP Cases 57 (9th Cir. 1982); Foster v. Arcata Associates, Inc. Co., 772 F.2d 1453, 38 FEP Cases 1850 (9th Cir. 1985).
Accordingly, the Commission believes that it was error for the Administrative Law Judge to apply the burdens and order of presentation of proof utilized in Title VII cases.
However, assuming arguendo, that the Complainant has established a prima facie case of wage discrimination under the standards developed under the federal Equal Pay Act, the Commission believes that nonetheless the preponderance of the evidence shows there was no violation of the Equal Pay Act principles. The Complainant was treated no differently with respect to her compensation than other males employed as Sanitation I workers. Males employed both before and after the Complainant's employment similarly received less pay than the male employed as a Sanitation II worker even though the work of the Sanitation I and II was substantially equal. (2)
As stated by the court in Schulte v. State of New York, 533 F. Supp. 31, 37 FEP Cases 1438 (E.D. N.Y. 1981), "(w)hile (Corning Glass Works v. Brennan, 417 U.S. 188, 9 FEP Cases 919 (1974)) recognized that a prima facie case under the Equal Pay Act is set forth by showing that employees of opposite sexes are paid different wages for equal work, neither Corning, nor, in this court's opinion, the EPA, was intended to address the situation where the employer pays different wages to two different job classifications, each of which include both men and women. Such an interpretation would extend the EPA even beyond the broad remedial purposes identified by the Court in Corning to include claims of underpayment by any employee even when unrelated to the sex discrimination claims sought to be remedied by the EPA."
Similarly, the Commission believes that to conclude in the present case that Complainant was discriminated against would extend the remedial purposes of the WFEA to include claims of underpayment, by any employe, even when unrelated to sex discrimination.
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(1)( Back ) As noted above s. 111 .32(5)(g)1m was eventually renumbered as s. 111.36(1)(a) effective August 1982 and remains essentially the same today.
(2)( Back ) The Complainant has argued that a comparison between herself and her predecessor (Pierce) was erroneous because she possessed a Bachelor of Science degree while he did not, but in evaluating pay disparities what is important is not the education that a particular individual happens to possess, but the education required by the job itself. Peltier v. City of Fargo, 533 F.2d 374, 12 FEP Cases 945 (8th Cir. 1976). Pierce performed exactly the same work that Complainant was later to perform, without possession of a Bachelor of Science degree.