HENRIETTA MAE SAHR, Complainant

TASTEE BAKERY, Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 22, 1990. Respondent filed a timely petition for review by the Commission and both parties submitted written arguments to the Commission.

Based upon a review of the record in its entirety, and having consulted with the Administrative Law Judge concerning his impressions as to the credibility of witnesses, the Labor and Industry Review Commission issues the following:

1. Respondent, Tastee Bakery, is a commercial bakery doing business in Appleton, Wisconsin. It is owned and managed by Wayne Steffen. Steffen became manager of the bakery in 1981 and acquired ownership of the bakery from its former owners, the Hoovers, in November 1984.

2. Complainant Henrietta Mae Sahr :Ls a married female. She was hired by Respondent in 1982 as a part-time cake decorator. At that time she had no professional experience in cake decorating, although she had taken some courses in cake decorating at Fox Valley Technical Institute. She was paid minimum wage, $3.35 per hour, and worked 20-25 hours a week.

3. Sahr received a pay increase to $3.75 per hour in November 1982. In March 1983 she received another pay increase to $4.25 per hour, and she was also promoted to the position of head cake decorator and had her hours increased to an average of 35-40 per week.

4. Although Sahr worked full-time in 1983 after being promoted to head cake decorator, in 1984 her average hours per week fell to 33, in 1985 they fell to 31, and in 1986 they fell to 29. "Full-time" employment with Respondent was considered to be 35 hours par week or greater. Sahr was thus not employed full-time for Respondent after 1983.

5. Before he acquired ownership of the bakery, Steffen had no say in who was or was not offered insurance benefits. Sane employes were provided fully paid health insurance while others had to pay 50 percent of the cost of the premiums. After Steffen became the owner in 1984, he offered health insurance only to those employes who worked full-time (which was 35 hours per week and five days per week) and those employes were required to pay the insurance premiums themselves. In 1987, Steffen began offering 50 percent payment of health insurance premiums for all full-time employes.

6. Sahr never wanted and never requested any insurance coverage through Respondent, because she was covered under a health insurance policy issued to her husband through his employment. Thus, no agent of Respondent made any decision on the question of whether Sahr would be allowed health insurance benefits into which consideration of her sex or marital status could have entered.

7. Sahr received a pay increase to $4.50 an hour in early 1984.

8. Sahr periodically spoke to Steffen about obtaining further pay increases. On sane of these occasions, Steffen made statements to Sahr to the effect that she did not need more pay because she was just working for fun, to get out, of the house, and she had a husband who was working.

9. In the fall of 1985 Sahr began to develop problems with her right arm and shoulder. Her doctor eventually advised her to find another job. In August 1986 Sahr gave Steffen notice that she was quitting.

10. At around the time that Sahr gave notice that she was quitting, another of Respondent's cake decorators died suddenly after a brief illness. Respondent was thus confronted with the simultaneous loss of two experienced cake decorators.

11. In response to his immediate and acute need for at least one cake decorator, Steffen contacted a woman he knew, Mae Valencia, who was a skilled cake decorator and who once had expressed interest in working for Respondent. Valencia was divorced; Steffen was aware of this. Steffen asked whether she was still interested in working for Respondent, and Valencia said she was but that she would have to be paid $9.00 per hour. She justified her wage request by indicating that she would want to be paid a little more than she was then earning in her job with another employer. Steffen agreed to pay her $9.00 per hour, and she agreed to take the job. On the following day, however, she contacted Steffen and advised him that she had changed her mind and would not accept the position.

12. Steffen then placed an ad in the paper seeking applicants for the cake decorator job. Only one person applied, a male named Jerry Rohloff.

13. Rohloff was a graduate of a baking program at Moraine Park Technical Institute, he had managed a grocery store with a bakery in Abbottsford for 14 months, and he then managed a production bakery (serving three grocery outlets) with 27 employes under him for two years. He had not decorated wedding cakes, but he informed Steffen that he could do cake decorating, although he might be a little rusty at it.

14. Rohloff insisted on being paid $7.00 per hour, having half his insurance premiums paid, and being guaranteed 40 hours of work per week. Steffen agreed to and did hire Rohloff on those terms.

15. Rohloff began working for Respondent in August 1986. Sahr last worked for Respondent on any sort of regular basis in August 1986, pursuant to her resignation. She performed sane extremely limited amount of work for Respondent between August 1986 and December 1987, entailing no more than 15-50 hours total, for which she was paid $5.00 per hour.

16. Shortly after Rohloff began working for Respondent, Steffen made a statement in the presence of another cake decorator, Fran Behn, to the effect that he always paid his male employes more than the "girls" because the "girls" had someone at home to support them.

17. In February 1988 Sahr approached Steffen about working for Respondent again. Sahr stated to Steffen that she wanted to be paid $8.00 per hour; in response, Steffen informed Sahr that he had paid Rohloff only $7.00 per hour. This was the first time that Sahr learned what Rohloff had been paid.

18. At the time of her conversation with Steffen in February 1988, Sahr had recently had surgery on her arm, was not able to work, and would not be able to work for a period of time. In their conversation, Steffen neither agreed nor refused to pay Sahr $8.00 per hour, but left the matter unresolved.

19. Neither Sahr' s sex nor her marital status were factors in Sahr's not receiving insurance benefits from Respondent.

20. Sahr's marital status was not a factor in Respondent's decision on what to pay her.

21. Sahr' s sex was a factor in Respondent's decision on what to pay her.

Based on the FINDINGS OF FACT made above, the Commission makes the following:

1. Respondent Tastee Bakery is an Employer within the meaning of the Wisconsin Fair Employment Act.

2. Respondent Tastee Bakery did not discriminate against Sahr because of sex or marital status, in violation of the Wisconsin Fair Employment, in regard to denial of insurance benefits.

3. Respondent Tastee Bakery did not discriminate against Sahr because of marital status, in violation of the Wisconsin Fair Employment Act, in regard to compensation.

4. Respondent Tastee Bakery discriminated against Sahr because of sex, in violation of the Wisconsin Fair Employment Act, in regard to compensation.

Based upon the FINDINGS OF FACTS and CONCLUSIONS OF LAW made above, the Commission makes the following:

1. That the complaint in this matter, insofar as it alleges that Respondent discriminated against Complainant because of sex and marital status in regard to denial of insurance benefits and because of marital status in regard to compensation, is dismissed.

2. That Respondent cease and desist from discriminating against Complainant because of sex in regard to compensation, as found herein above.

3. That Respondent make Complainant whole for all losses she suffered by reason of Respondent's unlawful conduct by paying her an amount equal to the difference between her actual wages and $7.00 per hour for the period beginning on April 1, 1986 and the date of Complainant's resignation in August 1986. The amount due Complainant shall bear interest at the rate of 12 percent per annum simple (not compound) and shall be computed on the total amount due from the date Complainant resigned in August 1986 until the date of payment.

4. That Respondent shall pay Sahr's attorney's fees and costs in the amount of $4,098.75. Respondent shall deliver a check in that amount, made out jointly to Complainant and her attorney, to Complainant' s attorney.

5. That Respondent shall within 30 days of the expiration of the time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708.

Dated and mailed January 22, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

Discrimination in Pay Because of Sex  -- In evaluating complaints of sex discrimination in pay under the Wisconsin Fair Employment Act, the Commission looks to the analysis which is followed under the federal Equal Pay Act. Anderson v. City of Sheboygan Health Department (LIRC, August 20, 1987). This analysis involves the question of whether employes of different sexes are paid differently for equal work on jobs the performance of which requires equal skill, effort, and responsibility and which are performed under similar working conditions. It recognizes four defenses which will negate liability if proven by the employer: that the differential payments are made pursuant to a seniority system, a merit system, or a system which measures earnings by quantity or quality of production, or "any other factor other than sex." It has been recognized that this analytical method essentially establishes a type of strict liability in which there need not be proof of intent to discriminate. Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 99, 24 FEP 1019 (8th Cir. 1980).

However, it is appropriate to also follow the conventional analysis of the issue of discrimination, in which certain evidence (a prima facie case) is considered to raise an inference that there was intentional discrimination, the respondent can then articulate a nondiscriminatory reason for the pay differential, and the complainant can then attempt to demonstrate that the articulated reason is pretextual. Direct evidence of the presence of a discriminatory motive can also be considered as relevant. The intent of the employer, as demonstrated by any relevant evidence, is the central focus.

Use of the conventional analysis is particularly appropriate in a case such as this, in which the wage differential is sequential rather than simultaneous. In this case, the differential is between the wages paid to Complainant  prior to her resignation in August 1986, and the wages paid to Rohloff after that time. Use of the conventional analysis is particularly appropriate in such cases because the actual decisions on what to pay the female and the similarly-situated male are made at different points in time. Sex may be considered by the employer as a factor in deciding what: to pay the female, but then subsequently a "factor other than sex" may intervene which causes a subsequently employed male to be paid more. Strict application of the Equal Pay Act analysis in such a case might be argued to support a decision that there was no discrimination, because sex was not a factor in what the male was paid. See, e.g., Wear v. Webb Co., 572 F.Supp. 1257, 36 FEP Cases 814 (D. Minn. 1983) in which a subsequently hired male was paid more because it was necessary to do so in order to persuade him to accept the job considering his then-present salary. However, under a conventional analysis, the discrimination does not occur when a subsequently employed male is paid more than a previously employed female. Rather, the discrimination occurs when sex is considered as a factor by the employer when it makes the decision or decisions on what to pay the female.

This case illustrates this situation. Rohloff was paid $7.00 an hour for one compelling, obvious reason: Respondent desperately needed to hire someone, Rohloff was the only applicant, and he demanded $7.00 per hour. Respondent had no choice in what to pay him, (if it wished to hire anyone at all) and therefore, his rate of pay is simply not a reliable indicator that Respondent would choose to pay males more absent other factors forcing a particular pay rate. The fact that Rohloff was the sole applicant for the position and demanded $7.00 per hour was a "factor other than sex," under an Equal Pay Act analysis.

However, a conventional analysis, which goes beyond the "strict liability" (Strecker, supra) concept of the Equal Pay Act, is concerned at all times with the ultimate question of whether the respondent intentionally discriminated against the complainant. There is no requirement that the decision-maker focus narrowly on whether a comparable male's pay rate was determined by "a factor other than sex." Rather, any relevant evidence can be considered. If the trier of fact is persuaded by the evidence that:, whatever the reason for the establishment of the male's pay rate, sex was considered as a factor when then the employer decided what to pay the female, a finding of discrimination is appropriate.

Here, the finding of discrimination in pay because of sex is supported by direct evidence of discrimination. The Administrative Law Judge, who had the opportunity to observe the witnesses while they testified and to draw conclusions concerning their credibility as witnesses from their demeanor, credited the testimony of both the Complainant and Fran Behn as to statements made by Wayne Steffen evidencing both a general view that women could be paid less than men, and a specific concession that he in fact paid his female employes less than his male employes. The Commission agrees with the Administrative Law Judge's assessment, that this testimony was credible. The evidence of these statements by Steffen convinces the Commission that Steffen improperly considered the Complainant' s sex in the determination of her rate of pay. He thus discriminated against Complainant in compensation because of sex, in violation of the Wisconsin Fair Employment Act.

Respondent argues that the Administrative Law Judge failed to take into account the fact that Rohloff was employed full-time while Sahr was employed only part-time, and the fact that Rohloff had additional job duties. The Commission is not persuaded by these arguments. For one thing, there is no basis in the record for concluding that Steffen ever distinguished between his employes in terms of their hourly rate of pay based on how many overall hours they worked. Of course, an employe who works 40 hours a week will earn more in total wages than an employe who works 30 hours a week, but there is no reason to expect that they will be paid different rates per hour for per-forming the same work. As far as Respondent's argument concerning the additional job duties, the evidence here was not convincing. The Commission was persuaded, as was the Administrative Law Judge, that the duties performed by Rohloff and those performed by Sahr were substantially the same. Most significantly to these arguments by Respondent, however, the evidence showed that these alleged distinctions were not in fact any part of the reason for Rohloff's rate of pay. As the Respondent argues elsewhere, and as the Commission has recognized, Rohloff's rate of pay was determined by the simple, inescapable fact that he was the only applicant for the position and demanded the rate of $7.00 per hour.

For the reasons discussed above, the Commission arrived at the conclusion that discrimination occurred here because, even though an Equal Pay Act analysis might be seen as insulating Respondent from such a finding, the direct evidence of discrimination persuades the Commission as trier of fact that considerations of sex motivated Steffen in his decision-making concerning the rate of pay for Sahr. 
 

Discrimination in Pay Because of Marital Status -- A conventional analysis, focusing on the ultimate question of whether intentional discrimination was at work, must be relied upon in the case of allegations of pay discrimination on bases other than sex, since the Equal Pay Act is concerned only with sex discrimination. Therefore, in evaluating the question of whether the Respondent discriminated against Complainant because of her marital status in regard to compensation, the Commission approaches the issue with the purpose of determining whether the Complainant' s marital status was a factor in any of Respondent' s decisions on what to pay her.

The Administrative Law Judge evidently considered that the offer of $9.00 per hour to Mae Valencia, a divorced female, was evidence of marital status discrimination. The Commission disagrees, since (as in the case of the offer of $7.00 per hour to Rohloff) the evidence is so clear that the offer at that rate of pay stemmed directly from Valencia' s demand for that rate of pay and her status at that time as the only person interested in the position.

The Commission does not view the statements made by Steffen concerning what he paid females, referred to above, as direct evidence of the presence of an intent to discriminate on the basis of marital status. Although Steffen referred to the fact that he paid females less and that they had "someone at home to take care of them," the Commission sees in his statements an unfortunately traditional attitude sometimes held towards working women which is essentially a matter of sex discrimination, not a matter of a distinction between persons because they are married, single, divorced, separated, etc. The statements evidence a bias that males are breadwinners on whom females rely, rather than a bias that married persons with working spouses may be paid less. It is quite apparent from the statements of Steffen that he would not be inclined to pay a married male less than a divorced male because the married male's wife was employed. The obvious bias in this case relates to sex, not marital status. The Commission was not persuaded, by the coincidence of Mae Valencia' s divorced status, that there was marital status discrimination here. 
 

Discrimination in Insurance Benefits -- The Administrative Law Judge, recognizing that Complainant was not interested in obtaining insurance benefits through Respondent, declined to order any remedy in this respect even though he had found that there was discrimination with respect to insurance. The Commission considers that there was no discrimination at all. While it is certainly possible, given his statements, that Steffen would have denied Complainant health insurance benefits because of her sex had he been confronted with the necessity of making a decision on that point, it is quite apparent that no decision was ever made, and thus no discrimination ever occurred. Discriminatory attitudes are not unlawful unless they result in discriminatory treatment. Way v. Merchants Federation and LIRC (Dane County Circuit Court, January 22, 1980). Entirely apart from the evidence that Complainant's hours of work were such that she would not have been given insurance benefits according to the uniformly applied practice of Steffen, the simple fact is that she never sought those benefits at any time. There was never a denial of the benefits. There was thus no discrimination. 
 

Back Pay -- Despite its recognition that the $7.00 per hour rate paid to Rohloff was determined exclusively by his demand for that rate and his status as the sole applicant, the Commission nevertheless concluded that it is an appropriate measure for the remedy herein. In a case concerning discrimination in compensation, whatever analytical method is followed in resolving the question of liability, the point of the remedy is to provide the difference between what was paid and what would have been paid but for the discrimination. It is not always possible to determine with absolute certainty what would have occurred absent the discrimination. However, difficulty in calculating the precise amount of back pay should not defeat the right itself. Pettway v. American Cast Iron Pipe Co., 494 F. 2d 211, 260, 7 FEP Cases 1115 (5th Cir. 1974), cert. den., 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74, 18 FEP Cases 1430 (1979). In computing back pay, unrealistic exactitude it not required, and uncertainties in determining what an employe would have earned but for discrimination should be resolved against the employer. Id. at 260-61; Silvers v. Metropolitan School Dist. (LIRC, July 25, 1986). Despite the manner in which it was arrived at, the $7.00 per hour rate provides some evidence of what Respondent was capable of paying (if not necessarily inclined to pay) for this work. Thus, the Commission uses it as the measure. 
 

Attorney's Fees on Petition for Review -- Counsel for the Complainant sought additional attorney's fees in the amount of $85 per hour f or 9.75 hours of work connected with the petition for review. Respondent objected to this request as being excessive. The Commission concluded that, although the hourly rate was appropriate, the request for 9.75 hours was excessive. Complainant' s two-page brief to the Commission was extremely perfunctory, The billing attached to counsel for the Complainant's supporting affidavit describes the work comprising the 9.75 hours claimed as being "reviewing Respondent' s brief, conferences with Complainant, research, reviewing file and record and drafting Complainant's reply brief," all this occurring over the course of "July 9, 1990 through July 20, 1990," but there is no more specific description of how many hours were expended on each of these activities. The Commission questions whether conferences with Complainant were necessary to respond to Respondent's brief, since the arguments to the Commission should have focused on the evidence elicited at the hearing, and additional matters disclosed to counsel for the Complainant by Complainant after hearing could not have been referred to. The extent of necessary expenditure of time on reviewing Respondent's brief and research is questionable as well, considering that Complainant's brief to the Commission cites no decisions, otherwise reflects no research, and does not address or respond to the arguments in Respondent's brief. The Commission considers that 5 hours at most are reasonably allowed for attorney' s fees in connection with the response to the petition. The fees ordered above reflect the inclusion of 5 additional hours at $85 per hour.

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