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A Victory for Comparable Worth: IUE V. Westinghouse Electric Corp

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A Victory for Comparable Worth: IUE V. Westinghouse Electric Corp Buffalo Law Review Volume 30 Number 1 Thirtieth Anniversary Issue Article 11 1-1-1981 A Victory for Comparable Worth: IUE v. Westinghouse Electric Corp. Alice A. Joseffer Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Labor and Employment Law Commons Recommended Citation Alice A. Joseffer, A Victory for Comparable Worth: IUE v. Westinghouse Electric Corp., 30 Buff. L. Rev. 185 (1981). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol30/iss1/11 This Comment is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. A VICTORY FOR COMPARABLE WORTH: IUE v. WESTINGHOUSE ELECTRIC CORP.* "Comparable worth," "the last issue to ripen under Title VII" and the first "truly jurisdictional question" to be faced under the law1 may be one of the most important Equal Employment Oppor- tunity issues of the 1980's.2 The essence of the comparable worth theory is that whole categories of jobs are traditionally under- valued and underpaid because they are predominantly "women's jobs"' and such underpayment constitutes sex-based wage discrim- ination under Title VII of the Civil Rights Act of 1964.4 Although Title VII was drafted to eliminate employment discrimination in all forms,5 its scope in sex-based wage discrimination claims has been limited, until recently, by the equal work provision of the Equal Pay Act of 1963.6 The Equal Pay Act of 19637 provides that individuals doing equal work8 must be paid equal wages. This prohibition against wage discrimination does not apply, however, to individuals doing different jobs. Hence, where significant differences in job content exist, as between bench assemblers and assemblers in heavy assem- * 631 F.2d 1094 (3d Cir. 1980), rehearingdenied (unreported), cert. denied, 49 U.S.L.W. 3954 (1981). 1. Address by Equal Employment Opportunity Commission [hereinafter EEOC] Chair Eleanor Holmes Norton, Equal Employment Advisory Council Symposium (Nov. 21, 1980), quoted in DAILY LABOR REPORT, Nov. 24, 1980 at A-5. 2. Address by EEOC Commissioner J. Clay Smith, Jr., Ohio AFL-CIO Civil Rights Conference, reported in 103 L.R.R.M. 123. 3. Id. 4. 42 U.S.C. §§ 2000e-2000e-17 (1976). See Blumrosen, Wage Discrimination,Job Seg- regation, and Title VII of the Civil Rights Act of 1964, 12 MICH. J.L. REF. 397, 457-65 (1979). According to her theory, a Title VII plaintiff could establish sex-based discrimina- tion in compensation by showing either: (1) total segregation; (2) "a perception" of segrega- tion, where jobs are understood to be "men's jobs" or "women's jobs"; or, (3) 70 to 80 per- cent of the job occupants are women. Id. at 460-62. Such a showing would establish a prima facie case of discrimination and the burden would shift to the employer to justify the wage structure or rebut the presumption. Id. at 491. 5. See Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). 6. 29 U.S.C. § 206(d) (1976). See Schultz v. Wheaton Glass Co., 421 F.2d 259, 265 (3d Cir. 1970), cert. denied, 398 U.S. 905 (1970). 7. 29 U.S.C. § 206(d) (1976). 8. See Wheaton Glass Co., 421 F.2d at 265. BUFFALO LAW REVIEW [Vol. 30 bly, plaintiffs claiming an Equal Pay Act violation are without a remedy,9 even though their jobs may be of comparable worth to their employer. In 1975, women comprised forty percent of the labor force. They were ninety-nine percent of all secretaries, ninety-eight per- cent of all household workers and nurses, ninety-six percent of dressmakers, sewers and stitchers, eighty-five percent of all ele- mentary schoolteachers, seventy-seven percent of all clerical em- ployees, and fifty-eight percent of all nonhousehold related service employees. Approximately seventy-five percent of all women work- ers were employed in these occupations.10 A 1980 comparison of the hourly rates of men and women indicate that women's rates" are only sixty-seven percent of men's hourly rates. 1 It follows from the occupational segregation statistics cited that it might be desirable to compare dissimilar jobs and require equal pay for jobs of "comparable worth." There are, however, neg- ative aspects to the application of a comparable worth standard. To achieve parity between full-time working men and women in the United States would cost employers approximately $150 bil- lion.1 2 Adding this large sum to employee wages without a compa- rable increase in productivity would result in massive inflation which would affect all members of society.' 3 In addition, during the 9. Angelo v. Bacharach Instrument Co., 555 F.2d 1164 (3d Cir. 1977). 10. See Keyserling, Women's Stake in Full Employment: Their Disadvantaged Role in the Economy-Challenges to Action, in WOMEN IN THE UNITED STATES LABOR FORCE 25, 28 (A. Cahn ed. 1979). See also Reagan, De Facto Job Segregation, in WOMEN IN TilE UNITED STATES LABOR FORCE 90, 93-98 (A. Cahn ed. 1979). 11. Address by June Ann O'Neill, director of the Urban Institute's program of policy research on women and families, Equal Employment Advisory Council Symposium (Nov. 21, 1980), reported in DAILY LABOR REPORT, Nov. 24, 1980 at A-6. Ms. O'Neill contended that despite attempts to "decompose" the 33 percent gap between rates of men and women, removing differences attributable to education, experience, shift work patterns, absenteeism, and whether wages are subject to collective bargaining, an unexplained difference of 7 to 10 percent remains, arguably attributable to discrimination. Id. An example of the type of study to which she referred is found in Polachek, Discontinuous Labor Force Participation and Its Effect on Women's Market Earnings, in SEX, DISCRIMINATION, AND THE DIVISION OF LABOR 90 (C. Lloyd ed. 1975). Another comparison of earnings indicates that in 1975 women's earnings for year-round, full-time work were 59 percent of the median earnings of men for year-round full-time work. Keyserling, supra note 11, at 28. 12. Smith, The EEOC's Bold Foray into Job Evaluation, FORTUNE, Sept. 11, 1978, at 58-59. 13. Women working in traditional "women's jobs" would benefit if their wages were raised to make them comparable to those of "men's jobs" and their increases would allow 1981] COMPARABLE WORTH 187 implementation of this standard, employers could be expected to lay off workers to control their labor costs. 14 Women certainly would not be unscathed during this period.15 An additional way in which the implementation of this theory would have an adverse impact upon society as a whole is in terms of services provided to the public by state and local governments. Labor costs comprise a large portion of any government budget. An increase in labor costs is likely to result in a corresponding re- duction in services because there is no profit factor that can be adjusted.16 Implementation of comparable worth would also in- crease already large-scale government regulation of the private sec- tor, removing wage determination from market forces.17 Finally, it is questionable whether comparable worth analysis could be imple- mented even if it were desirable,1s since, in order to make a proper them to cope with inflation. Those individuals or families who would not be beneficiaries of comparable worth would suffer a reduction of purchasing power. Included would be married women who were not employed out of the home, non-employed single women and their dependents, retired and disabled individuals, and women working in traditionally "men's jobs," among others. Nelson, Opton & Wilson, Wage Discriminationand the "Comparable Worth" Theory in Perspective, 13 MICH. J.L. REF. 231, 293-94 (1980). 14. Some employers might view increased labor costs as an incentive to revise their organization or revamp their plant to eliminate jobs. Hildebrand, The Market System, in COMPARABLE WORTH: ISSUES AND ALTERNATIVES 79, 83-84 (E. Livernash ed. 1980). Employ- ers may be expected to "export" many "women's jobs" to countries where labor is less ex- pensive. Nelson, Opton & Wilson, supra note 13, at 291. Employers may also contract out certain jobs to avoid comparisons. Id. at 291. 15. It has been suggested that the implementation of a comparable worth standard could have a negative impact upon precisely those it purports to serve since: "(1) unemploy- ment rates for females will rise, (2) unemployment of females also will rise [sic], (3) the major victims will be the poorest female workers, (4) welfare dependency will grow, (5) fe- male workers will be large losers of job opportunities and (6) there will be some withdrawal of discouraged women workers from the labor force. Hildebrand, supra note 14, at 106. 16. Petitioner's Brief for Certiorari at 106, County of Washington v. Gunther, 49 U.S.L.W. 4623 (1981) [hereinafter cited as Petitioner's Brief, Gunther]. In contrast, in the private sector, the employer's margin of profit could theoretically be reduced to compensate for increased labor costs. 17. Government agencies and/or the courts would be enmeshed in the reconstruction and regulation of wage and salary structures of employers. Hildebrand, supra note 14, at 83- 84. Massive regulatory intervention into wage and salary structures would be yet another large scale intervention into the private sector. Id. at 102-05. The end result could be ad- ministrative wage control for the entire American economy.
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