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Ronald Reagan Presidential Library
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This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Comparable Worth (1)
Box: 11
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51 Box 11 - JGR/Comparable Worth (1) - Roberts, John G.: Files
SERIES I: Subject File
200959
BD#
JV
20
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O SOUTGOING
The
H INTERNAL
PT.
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
Name of Correspondent: William Bradford Reynolds
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: american Federation 7 State, County and
Municipal Employees, etal, VS. State of
Nashington etal No C82-4657
ROUTE TO:
ACTION
DISPOSITION
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of
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CUHOLL
ORIGINATOR
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Referral Note:
WAT 18
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7
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Referral Note: DD fyi /
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ACTION CODES:
DISPOSITION CODES:
A - Appropriate Action
1 Mnfo Copy Only/No Action Necessary
LA Answered
C Completed
C Comment/Recommendation
R Direct Reply w/Copy
B Non Special Referral
Suspended
D Draft Response
LVS For Signature
F Furnish Fact Sheet
TX -Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
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Completion Date Date:of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
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5/81
U.S. Department of Justice
Civil Rights Division
Assistant Attorney General
Washington, D.C. 20530
1/26/84
Fred:
200959
Per your request.
Brad
AU
(Rev.. 829
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE WESTERN DISTRICT OF WASHINGTON
AT TACOMA
3
4
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL
)
5
EMPLOYEES, et al.,
)
NO. C82-465T
6
Plaintiffs,
)
7
-VS-
)
8
STATE OF WASHINGTON, et al.,
)
OPINION
9
Defendants.
AND
)
DECLARATORY JUDGMENT
10
11
I. STATEMENT OF THE CASE
12
On September 16, 1981, Plaintiff's filed charges with the Equal Employment
13
Opportunity Commission (EEOC). The EEOC took no action on Plaintiff's charges.
14
On April 31, 1982, the U. S. Department of Justice issued Notices of Right to Sue to
15
Plaintiffs.
16
On July 20, 1982 two Unions, the American Federation of State, County and
17
Municipal Employees (AFSCME) and the Washington Federation of State Employees
18
(WFSE), on behalf of some 15,500 workers in jobs held primarily by females, filed the
19
complaint initiating this Class Action against the State of Washington. Plaintiffs
20
seek a declaratory judgment and money damages pursuant to Title 28 U.S.C. SS 2201
21
and 2202, concerning Defendant's discriminatory implementation and application of
22
its compensation system, and injunctive relief to provide enforcement of a non-
23
discriminatory compensation system as it previously has been or herein may be
24
judicially determined.
25
Venue is properly laid in this Court under Title 28 U.S.C. S 1391(b). This
26
Court has jurisdiction in this matter by virtue of Title VII of the Civil Rights Act of
(Rev.8/82) 8/82)
1
2
U.S.C. 1964, as amended on March 24, 1972, Title 42 U.S.C. $ 2000(e), et seq., and Title 28
S 1331.
3
4
By order of the Court, dated April 1, 1983, this case was bifurcated into
5
1983, phases the (i.e., liability and remedy). By later order of the Court, dated November two
6
and remedy phase was bifurcated into two more phases (i.e., injunctive 2,
7
in the back pay). Pretrial conferences were held prior to each trial to clarify the relief
8
at case. Unfortunately the parties were never able to agree upon a pretrial issues
9
two any phase of this litigation. The Court proceeded to try each phase of the case order on
proposed pretrial orders, as-submitted by the parties.
10
11
In the liability phase, or Stage I of this litigation, both pretrial orders
12
to remarkedly the similar in content as to the ultimate issues. The liability phase was were
13
Court commencing August 30, 1983, and continued over a period of eight days, tried
14
concluding on September 14, 1983, with oral argument by counsel for both parties.
15
The injunctive relief phase of this litigation was tried to the Court
16
commencing November 14, 1983 and concluding on November 17, 1983, again with
17
priate arguments. Following the Court's determination that injunctive relief was oral
18
and would issue herein, the back pay hearing was scheduled for and commenced appro-
19
on November 30, 1983. The back pay hearing, the last phase of this lengthy and
20
complex lawsuit, concluded on December 1, 1983, with the Court's determination that
back pay was appropriate and would be so awarded.
21
22
Throughout the course of this litigation several witnesses were called by
23
into both parties, more than 200 exhibits comprising several thousand pages were offered
24
At evidence, and numerous depositions and affidavits were submitted to the Court.
25
findings of fact and conclusions of law.
the conclusion of each phase of the litigation, both parties submitted proposed
26
The ultimate objective of this decision is to determine every issue of fact
-2-
(Bev.8/82),
1
and law presented and thereby finally settle the devisive problems of gender-based
2
discrimination in compensation in the State of Washington.
3
II. RULINGS ON MAJOR ISSUES
4
1.
Class Certification:
5.
On November 1, 1982, Plaintiffs moved the Court for Class Certification.
6
The Class sought to be certified included male and female employees under the
7
jurisdiction of the Department of Personnel (DOP), and the Higher Education
8
Personnel Board (HEPB), who have worked or do work in positions that are or have
9
ever been 70% or more female. This Court, by order dated March 31, 1983, found that
10
the prerequisits to certification of a Class were satisfied, Fed.R.Civ.P. 23, and the
11
Class above described was certified.
12
There are seven (7) prerequisits that a Plaintiff seeking to maintain a Class
13
Action must meet, two implicit and five explicit. See Southern Snack Foods V. J & J
14
Snack Foods, 79 F.R.D. 678, 680 (D.N.J.1978). The implicit prerequisits are that a
15
Class exist and the Class representatives be members of that Class. Defendant,
16
State of Washington, argued that the Class definition the Plaintiffs were requesting
17
would create a Class whose membership probably could not be ascertained. It was
18
Defendant's contention that the certified definition should be limited to include only
19
classifications that are currently 70% or more female, thereby excluding employees
20
in jobs which were formerly predominately female but have since been integrated.
21
Plaintiffs responded that employees in job categories which were predominately
22
female during the period covered by this action had suffered the same discrimination
23
as employees in jobs which are still predominately female. Because the employees in
24
the jobs that were both currently 70% or more female and were at one time 70% or
25
more female, were readily identifiable in Defendant's records, the Court found there
26
was no reason why they should be excluded from the Class. There was no question
-3-
(Rev.8:82)
1
2
found that the Class representatives were members of the Class. Accordingly, this court
that the implicit prerequisits were met.
3
4
The explicit prerequisits are that the Plaintiff Class meet all four
5
ments of Fed.R.Civ.P. 23(a) -numerosity, commonality, typicality, and require-
6
subsections representation, - and that the Class fulfill the conditions of any one of adequacy the of
7
790 of Fed.R.Civ.P. 23(b). See Davis V. Aveo Corporation, 371 three
8
F.Supp. 613, 617 (E.D.La. 1972).
(N.D.Ohio 1974); see also Williams V. New Orleans Steamship Association, F.Supp. 782, 341
9
10
(a) Numerosity: Defendant's did not contest certification upon
11
this basis. It was uncontroverted that the numerosity require-
ment was met.
12
13
(b) Commonality: Defendant argued that certification should
14
be denied because of great factual diversity in the individual
15
claims. See Montgomery V. Rumsfeld, 572 F.2d 250 (9th Cir.
16
1978). However, this court found "questions of law or fact
17
common to the Class." Fed.R.Civ.P. 23(a)(2). The alleged
18
existence of a sexually discriminatory compensation policy
19
presents questions of both fact and law, which are common to
20
all employees in all of the predominately female classifications,
notwithstanding any differences between the jobs.
21
(c) Typicality: Defendants did not contest the typicality of the
22
individual Class representatives with regard to Plaintiff's dis-
23
crimination in compensation claim. Defendant's opposition with
24
25
respect to the "working out" of Class and other related claims
was rendered moot by later rulings of the Court.
26
-4-
1
(d) Adequacy of Representation: This fourth requirement,
2
which incorporates due process, is imposed for the purpose of
3
protecting absent Class members from the effect of an adverse
4
judgment resulting from representation at trial by parties
5
whose interests are not the same as their own. Defendants
6
contended that the individual Plaintiffs could not adequately
7
represent the interests of the Class so long as they continued to
8
be represented by the Union attorneys because of a potential
9
conflict at the remedy stage of the litigation between the
10
interests of the Class and the interests of the members of the
11
Plaintiff's Union who are not in the Class. In Social Services
12
Union, Local 535 V. County of Santa Clara, 609 F.2d 944, 948
13
(9th Cir. 1979), the Court of Appeals held that "[m] ere specu-
14
lation as to conflicts that may develop at the remedy stage is
15
insufficient to support denial of initial Class certification."
16
Finding no basis in the record to support Defendant's contention
17
that the Plaintiffs could not protect the interests of the Class
18
which they sought to represent; finding that the Unions herein
19
had, in the past, been responsive to Class interests; and finding
20
that the Unions herein were conducting the lawsuit vigorously,
21
this court held that those seeking to represent the Class had the
22
kind of personal stake in the litigation that would insure
23
adequate representation of the interests of the Class members.
24
(e) Rule 23(b): Plaintiffs elected to proceed under
25
Fed.R.Civ.P. 23(b)(2).
26
IT that the party opposing the Class has acted or refused to act
-5-
(Rev.8/82)
1
appropriate on grounds generally final applicable to the Class, thereby
2
relief with respect injunctive to the Class relief as a or whole." corresponding declaratory making
3
4
Defendants conceded that the Class the Plaintiffs sought to certify met
5
the requirements of subsection (b)(2) of Rule 23, and did not oppose such maintenance
of this action.
6
7
In summary, having found the Plaintiffs met the seven prerequisits to
maintenance of a Class action, this court found this case appropriate for certification
8
under Fed.R.Civ.P. 23.
9
Subsequent to the litigation of Phase I, (i.e., the liability trial), this Court
10
11
modified the Class definition in accordance with facts elicited at trial. The Class, as
redefined, is as follows:
12
jurisdiction Male and female employees of all job classifications
13
as November 20, 1980 12 or anytime thereafter.
of of DOP and HEPB which were 70% or more under female the
14
2.
Exhaustion of Administrative Remedies:
15
Plaintiff's EEOC claims and complaint were based on Title VII of the Civil
16
Rights Act of 1964, as amended on March 24, 1972. Title VII requires Plaintiffs to file
17
their claims with the EEOC as a jurisdictional prerequisite to filing suit in District
18
Court. In September of 1981 the individual Plaintiffs 3 in this Class Action each filed
19
claims with the EEOC charging that:
20
sex The in State of Washington has and is discriminating on
21
by compensation against women employed in State grounds of
predominately wage female job classifications that are salaries for
establishing and maintaining wage rates or service
22
cations rates that or salaries for predominately male less than
23
bility. require equal or less skill, effort, and job responsi- classifi-
24
EEOC charge Number 101812865./4 The Defendant, relying on Ong V. Cleland, 642
25
F.2d 316 (9th Cir. 1981), argued that the Plaintiffs herein filed a charge with the
26.
EEOC based on one theory of discrimination and then attempted to sue in Federal
-6-
(Rev.8/82)
1
Court based on additional theories.
2
3
This Court, after a careful review of relevant case law,
4
court Defendant's should reliance upon Ong was misplaced. The Ong Court held determined that that
5
charge is not permit a complaint to proceed when the "fit" with the a Federal
6
agency efforts so loose that it would "circumvent the Title VII scheme which administrative
7
at 319. This to secure voluntary compliance before a civil action is instituted." contemplates
8
judicial Court found that the "fit" between the administrative Id.
9
gambit of allegation was not too loose. The administrative charge charge and and the
10
the EEOC allegations of discrimination were sufficiently related factually to the have whole put
11
on notice of the subsequent judicial allegations.
3.
12
Plaintiff's Claims Based on State Law
13
Plaintiff's alleged violations of a number of State provisions, in
14
pendent alleged Title VII violations, as jurisdictional basis for the present action addition to
15
Discrimination, jurisdiction. The State provisions were - the Washington State and sought
16
Law, Wash.Rev.Code S 49.60.010 et seq; the Washington State Law Against
17
41.06.010 Wash.Rev.Code S 49.12.175; the State Civil Service Law, Wash.Rev.Code Equal Pay
18
28B.16.010 et seq; the State Higher Education Personnel Law, $
19
Const. et seq; the Washington State Equal Rights Amendment, Wash.Rev.Code $
20
Recognizing Amendment 61, Article XXXI; and several Governor's Executive Wash.Rev.Code
21
law, United the duty of federal courts to avoid needless decisions on issues Orders.
22
this Court Mineworkers V. Gibbs, 383. U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d of State
23
Court exercised its discretion in refusing pendent jurisdiction. In so 218 (1966),
24
fairness weighed carefully the considerations of judicial economy, ruling, this
25
and the to litigants. Id., 383 U.S. at 726. This case is basically a convenience, Title VII action, and
26
Court considered only Title VII issues and cases.
4.
Tenth and Eleventh Amendment Claims
-7-
(Rev.B/82)
1
In the 1972 Amendments to Title VII of the Civil Rights Act of 1964,
2
Congress, acting under Section 5 of the Fourteenth Amendment, authorized federal
3
courts to award money damages in favor of private individuals against a State
4
government found to have subjected the complaining individuals to employment
5
discrimination on the basis of sex. See Title 42 U.S.C. S 2000e-5(g) (1970 ed. and
6
Supp.IV), and Fitzpatrick V. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed. 2d 614 (1976).
7
Title "There is no dispute that in enacting the 1972 Amendments
8
VII to extend coverage to the States as to
9
No. Amendment. See, e.g., H.R.Rep. No. 92-238, p.19 (1971);
Congress exercised its power under Section 5 of the Fourteenth employers,
10
Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976)."
92-415, pp.10-11 (H971). Cf. National League of Cities S.Rep. V.
11
Fitzpatrick, 427 U.S. at 453 n.9, 96 S.Ct. at 2670 n.9.
12
Defendant's argument to the contrary is without merit in that its reliance,
13
upon the rulings developed in National League of Cities V. Usery; Hodel V. Virginia
14
Surface Mining to Reclam.Ass'n., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981); and
EEOC V. Wyoming,
U.S.
15
, 103 S.Ct. 1054 (1983), is misplaced. / 5
16
The Fitzpatrick decision, read in conjunction with Hodel, 452 U.S. at 287,
17
n.28, 101 S.Ct. at 2366, n.28, makes it perfectly clear that Congress has power, under
18
Section 5 of the Fourteenth Amendment, to prohibit sex discrimination in employ-
19
ment; that federal courts have authority to formulate appropriate remedies once such
20
discrimination is found; and that such power and authority extends to the State as an
21
employer, the Tenth and Eleventh Amendments notwithstanding.
5.
22
Plaintiff's Sex Segregation Claim
23
Throughout their pleadings Plaintiff alleged the Defendant discriminated
24
against the Plaintiff's Class by maintaining historically sex segregated job classifi-
25
cations. At trial, it became apparent that the alleged sex-segregation was not an
26
independent claim, but an element of Plaintiff's claim based on discrimination in
-8-
(Rev.8/82)
1
compensation. A careful reading of the voluminous pleadings herein reveals the
2
Plaintiff's use of the term "sex-segregation" merely refers to sexual predominance,
3
either male or female, in various job classifications. Plaintiff conceded this
4
interpretation at trial.
5
This Court determined that sex-segregation was in issue, but only as an
6
element of probative evidence supporting Plaintiff's disparate impact and disparate
7
treatment arguments. Accordingly, Plaintiff's sex-segregation claim was dismissed.
8
6.
Abstention
9
Employing the doctrine of Railroad Commission V. Pullman Co., 312 U.S.
10
496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), this Court denied Defendant's request that this
11
Court abstain until the State Courts had attempted a resolution of the controversy.
12
As the United States Court of Appeals for the Ninth Circuit recently held, "[t] O
13
determine whether Pullman abstention is appropriate, the district court must apply a
14
three-prong test 6 Badham V. U.S.Dist.Ct.For N.D. Of Cal., No. 83-7487, slip
15
op. 4728, 4730 (9th Cir. Sept 26, 1983). This Court found that the complaint did not
16
"touch a sensitive area of social policy upon which the federal courts ought not to
17
enter " Thus the first prong of the Pullman test was not met./⁷
18
III. ESTABLISHED BASIC FACTS & LAW
19
The standards generally applicable to claims of discrimination under Title
20
VII of the Civil Rights Act of 1964, section 701, et seq, Title 42 U.S.C. § 2000(e), et
21
seq, were first articulated by the United States Supreme Court in Griggs V. Duke
22
Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed. 2d 158 (1971) (Disparate Impact),
23
and in McDonnell Douglas Corp. V. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed 2d 668
24
(1973) (Disparate Treatment). Since then, decisions on this same subject matter have
25
been rendered in that court and other Federal courts in a considerable number to the
26
present time. All of the decisions that appear to have direct or indirect application
-9-
(Rev. 8/82)
1
to the present case have been closely reviewed and analyzed, individually and in
2
relation to each other. Based thereon this Court finds and holds that the following
3
statements are now well established in fact and law.
4
1.
Title 42 U.S.C. sec.2000(e)-2(a)(1)and (2) provides:
5
(a) It shall be an unlawful employment practice for an employer-
6
(1)
to discriminate against any individual with respect to his
7
8
compensation, terms, conditions, or privileges of employment,
because of such individuals.
.sex
;; or
9
(2) to limit, segregate, or classify his employees or applicants
10
for employment in any way which would deprive or tend to
11
deprive any individual of employment opportunities or other-
12
wise adversely affect his status as an employee, because of
13
such individuals
.sex.
14
2.
The provisions of Title VII do not prohibit Plaintiffs in this case from
15
suing Defendants for sex based wage discrimination, and other discriminatory
16
compensation practices. In County of Washington V. Gunther, the U. S. Supreme
17
Court, addressing this very question, stated:
18
Title was intended VII's prohibition of discriminatory employment
19
discrimination to be broadly inclusive, proscribing "not practices
discriminatory U.S. in operation." Griggs V. Duke Power form, but
but also practices that are fair in only overt
20
structure 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Co., 401
21
approach. proof, and defenses, has been designed to reflect burdens this
of of Title VII litigation, including presumptions, The
22
23
751. County of Washington V. Gunther, 452 U.S. 161, 170, 101 S.Ct. 2242, 2248, 68 L.Ed. 2d
24
3.
25
The plain language and broad remedial policy behind Title VII should
26
not be limited in the absence of a clear congressional directive. "As Congress itself
has indicated, a broad approach' to the definition of equal employment opportunity is
-10-
(Rev.8/82)
1
2
88th essential to overcoming and undoing the effect of discrimination. S.Rep. No. 867,
3
Cong., 2d Sess., 12 (1964). We must therefore avoid interpretations of Title VII
4
that deprive victims of discrimination of a remedy, without clear congressional
5
mandate." County of Washington V. Gunther, 452 U.S. at 178, 101 S.Ct. at 2252.
4.
6
The four affirmative defenses of the Equal Pay Act are available to
7
Defendants in a sex-based wage discrimination case brought under Title VII. See,
8
fourth e.g., County of Washington V. Gunther, 452 U.S. at 176, 101 S.Ct. at 2251. Only the
9
affirmative defense - "payment made pursuant to (iv) a differential based
10
on any factor 5. other than sex," Title 29 U.S.C. § 206(d) (iv) - is relevant to this case.
11
In Los Angeles Dept. of Water and Power V. Manhart, 435 U.S. 702,
12
98 S.Ct. 1370, 55 L.Ed 2d 657 (1978), the Supreme Court addressed and dismissed the
13
applicability of a cost-justification defense in Title VII cases by explicitly stating, "
14
neither congress nor the Courts have recognized such a defense under Title VII."
Id., 435 U.S. at 717, 98 S.Ct. at 1379-1380.
15
16
This Court is cognizant of the relevance of cost in determining the
17
propriety of back pay under the rationale articulated in the Manhart and Norris / 8
18
decisions. The relevance of cost at that juncture of a case is clearly distinguishable
19
litigation. from the application of a cost-justification defense at the liability phase of Title VII
20
6.
Title VII prohibits two types of employment discrimination. First, it
21
prohibits disparate treatment: intentional, unfavorable treatment of employees based
22
on impermissible criteria. McDonnell Douglas Corp. V. Green, 411 U.S. 792, (1973).
23
24
See also Texas Dept. of Community Affairs V. Burdine, 450 U.S. 248, 101 S.Ct. 1089,
25
67 L.Ed 2d 207 (1981); International Brotherhood of Teamsters V. U.S., 431 U.S. 324, 97
26
S.Ct. 1843, 52 L.Ed.2d 396 (1977). Second, it prohibits practices with a discriminatory
impact: facially neutral practices that have a discriminatory impact and are not
-il-
(Rev.8/82)
1
justified by business necessity. Griggs V. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849.
2
See also Teamsters, 431 U.S. 324, 97 S.Ct. 1843. The same set of facts may give rise
3
to a claim under both disparate impact and disparate treatment theories. Teamsters,
4
431 U.S. at 335 n.15; Bonilla V. Oakland Scavenger Company, 697 F.2d 1297 (9th Cir.
5
1982); Heagney V. University of Washington, 642 F.2d 1157 (9th Cir. 1981).
6
7. Until recently, the availability of the disparate impact analysis in
7
section 703(a)(1) cases, was unclear. However, the Ninth Circuit in Wambheim V. J.
8
C. Penney Company, Inc., No. 82-4104, slip op. 2231, 2233-34 (9th Cir. May 17,
9
1983)(per curiam), held that the disparate impect analysis is appropriate in Section
10
703 (a)(1) cases. See also Bonilla V. Oakland Scavenger Company, 697 F.2d 1293, 1302-
11
04 (9th Cir. 1982), petition for cert. filed, 51 U.S. Law Week 3775 (U.S. April 15, 1983),
12
(No. 82-1699). The applicability of the disparate impact analysis in Section 703(a)(2)
13
cases is well established. See Griggs, 401 U.S. 424, 91 S.Ct. 849.
14
8. Establishment of a prima facie case under the disparate impact
15
theory requires Plaintiff to show, by a preponderance of the evidence, that the
16
challenged practice has a significantly discriminatory impact. Connecticut V.
17
Teal,
U.S.
, 102 S.Ct. 2525, 2531, 73 L.Ed.2d 130 (1982). It is not necessary
18
to establish discriminatory intent. Griggs, 401 U.S. at 432, 91 S.Ct. at 854.
19
A prima facie showing shifts to Defendant the burden of justifying its
20
policy. As articulated by the Ninth Circuit Court of Appeals in Wambheim V.
21
J.C.Penney Company, Inc.,
22
[t] he standard applied in section 703(a)(2) cases is business
necessity, see Griggs, 401 U.S. at 431, 91 S.Ct. at 853, manifest
23
relationship to the employment, see Connecticut V. Teal, 102
S.Ct. at 2531, or necessity for the efficient operation of the
24
business. See Peters V. Lieuallen, 693 F.2d 966, 969 (9th Cir.
1982). Because none of these measures is particularly applic-
25
able to the section 703(a)(1) employment (compensation) case,
we adopt the standard articulated in Bonilla: (Defendant) must
26
"demonstrate that legitimate and overriding business consider-
ations provide justification." Bonilla, 697 F.2d at 1303.
-12-
1
Wambheim, No. 82-4104, slip.op. at 2234.
2
3
In accessing the viability of the Defendants business justifications in
4
section 703(a)(1) case, this court is obliged to balance said considerations against the a
5
countervailing national interest in eliminating employment discrimination.
6
Bonilla, 697 F.2d at 1303, quoting Griggs, 401 U.S. at 430. Only if Defendant's See
7
business justification overrides this national interest will the defense be considered
8
sufficient. The Supreme Court has admonished that under Title VII, "practices,
9
be procedures, or tests neutral on their face, and even neutral in terms of intent, cannot
10
maintained if they operate to freeze the status quo of prior discriminatory
employment practices." Griggs, 401 U.S. at 430.
11
12
Assuming Defendant's could carry the burden of justifying its compensation
13
system, the Plaintiff's could still prevail by showing that the practice was used as
14
pretext for discrimination. Connecticut v.Teal, 102 S.Ct.at 2531; Wambheim, No. 82- a
15
4104 slip op. at 2234. Evidence that the defense was a pretext might include proof of
16
past intentional discrimination, or proof that an alternative practice would serve the
17
Defendant's legitimate interests with less disparate impact. Id. at 2234; see also
Contreras V. City of Los Angeles, 656 F.2d 1267 (9th Cir. 1981).
18
9.
19
The United States Supreme Court in Texas Community Affairs V.
20
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), articulated the basic
21
allocations of burdens and order of presentation of proof in a Title VII case alleging
disparate treatment.
22
derance First, the of Plaintiff has the burden of proving by the
23
Second, the evidence, a prima facie case of prepon-
24
legitimate, tion". case, the McDonnell if burden non-discriminatory the Plaintiff shifts to succeeds the reason Defendant, in for proving the "to employees the articulate discrimination. prima some facie
25
to prove burden, the Plaintiff must then have Defendant
carry this Douglas, at 802. Third, should the rejec-
26
reasons offered by a preponderance of the evidence that an the opportunity
were a pretext for discrimination.
by the Defendant were not its true reasons, legitimate but
-13-
(Rev.8:82)
1
Burdine, 450 U.S.at 252-53. The Burdine court further defined the nature of the
2
burdens in a disparate treatment case. In the first instance, the Plaintiff has the
3
burden of establishing a prima facie case of disparate treatment. This burden is not
4
onerous. Id, at 253. Establishment of a prima facie case under a disparate treatment
5
theory requires Plaintiff to show facts supporting an inference of intent to discrimi-
6
nate. "
It is settled that a prima facie showing of disparate treatment may be
7
made without any direct proof of discriminatory motivation." Gay V. Waiters Dairy
8
Lunchmen's Union, 694 F.2d 531, 546 (9th Cir. 1982). A Plaintiff may make such a
9
showing with a combination of direct, circumstantial and statistical evidence of
10
discrimination. It is now well settled that proof of the four McDonnell Douglas
11
criteria is not the only way to establish a prima facie case of disparate treatment,
12
and that the McDonnell Douglas approach is to be applied flexibly. See Gay V.
13
Waiters Dairy Lunchmen's Union, 694 F.2d at 550.
14
15
allowing the strongest inference of intentional discrimination one
the best prima facie case utilizing statistical date,
outside of the McDonnell Douglas framework, is that in which
16
stantial evidence of discrimination bringing "the cold numbers
the Plaintiff's statistical proof is "bolstered" by other circum-
17
S.Ct. at 1856.
convincingly to life." Teamsters, supra, 431 U.S. at 339, 97
18
Gay, 694 F.2d at 553.
19
Circumstantial evidence which courts have found probative of intentional
20
discrimination, includes the following: the historical context out of which the
21
challenged practices arise; obstacles confronting applicants and/or employees; sub-
22
jective employment practices utilized by the Defendant resulting in a pattern
23
disfavoring females; the foreseeable adverse impact of those practices; the increase
24
in pay to the Plaintiffs since filing of the instant suit; discriminatory treatment in
25
other areas of employment; and, perhaps most telling, recognition of disparate
26
treatment by responsible Sstate officials. The Burdine Court explained that the
-14-
8/821
1
"prima facie case" raises an inference of discrimination only because we presume
2
these acts, if otherwise unexplained, are more likely than not based on the
3
consideration of impermissible factors." Burdine, 450 U.S. at 254, quoting Furnco
4
Construction Company V. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957
5
(1978). The Burdine Court went on to explain:
6
Establishment of the prima facie case in effect creates a
presumption that the employer unlawfully discriminated against
7
the employee. If the trier of fact believes the Plaintiff's
evidence, and if the employer is silent in the face of the
8
presumption, the Court must enter Judgment for the Plaintiff
because no issue of fact remains in the case.
9
Burdine, 450 U.S. at 254.
10
The burden that shifts to the Defendant is to rebut the presumption of
11
discrimination raised by Plaintiff's evidence, by producing evidence that Defendant's
12
actions (in the instant case, Defendant's mode of compensation) were legitimate and
13
non-discriminatory. The Burdine Court stated
14
The Defendant need not persuade the Court that it was actually
15
motivated by the proffered reason. See Sweeney, supra, at 25.
It is sufficient if the defendant's evidence raises a genuine issue
16
of fact as to whether it discriminated against the plaintiff.
(footnote omitted).
The explanation provided must be
17
legally sufficient to justify a judgment for the defendant. If
the defendant carries this burden of production, the pre-
18
sumption raised by the prima facie case is rebutted, (footnote
omitted) and the factual inquiry proceeds to a new level of
19
specificity. Placing this burden of production on the defendant
thus serves simultaneously to meet the plaintiff's prima facie
20
case by presenting a legitimate reason for the action and to
frame the factual issue with sufficient clarity so that the
21
plaintiff will have a full and fair opportunity to demonstrate
pretext. The sufficiency of the defendant's evidence should be
22
evaluated by the extent to which it fulfills these functions.
23
Id, at 254-256. It is critical to note that the burden of persuasion never shifts from
24
the Plaintiff to the Defendant. Id., at 253.
25
All that shifts to the Defendant is the burden of production. Identifying
26
this burden as an "intermediate burden," the Burdine Court emphasised that "the
-15-
(Rev.8/82)
1
employer need only to produce admissible evidence which would allow the trier of
2
fact rationally to conclude that the employment decision had not been motivated by
3
discriminatory animus." Id, at 257. Limiting the Defendant's evidentiary obligation
4
to a burden of production will not hinder the Plaintiff in that Defendant's explanation
5
of its legitimate reasons must first, rebut the inference of discrimination arising
6
from the prima facie case and, second, afford Plaintiff a full and fair opportunity to
7
demonstrate pretext. Id, at 258.
8
The presentation of proof then shifts back to the Plaintiff to demonstrate
9
that Defendant's proffered reason was not the true reason for the employment
10
decision.
11
This burden now merges with the ultimate burden of persuading
the Court that she has been the victim of intentional discrimi-
12
nation. She may succeed in this either directly by persuading
the Court that a discriminatory reason more likely motivated
13
the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence. See McDonnell
14
Douglas, supra, at 804-805.
15
Burdine at 256. Although the Plaintiff's prima facie case will have been rebutted
16
before a Court considers this third and final stage in the presentation of proof, the
17
evidence (produced by Plaintiff at the prima facie stage) and
inferences properly drawn therefrom, may be considered by the
18
trier of the fact on the issue of whether the defendant's
explanation is pretextual. Indeed, there may be some cases
19
where the palintiff's [sic.] initial evidence combined with
effective cross examination of the defendant, will suffice to
20
discredit the defendant's expalnation [sic.].
21
Id, at 255, n.10. The Ninth Circuit recently instructed, "[a] t the close of the
22
evidence, rather than focusing on the prima facie case, the district court should
23
proceed directly to the ultimate factual issue of whether the Defendant intentionally
24
discriminated against Plaintiff on the basis of (sex)." Wall V. National. R.R. Passenger
25
Corp., No. 82-5260, slip.op. 3903, 3905 (9th Cir. Aug. 16, 1983)
26
10. Federal District Courts have jurisdiction under Title VII to fashion an
-16-
(Rev.8/82)
1
appropriate remedy following a finding of unlawful discrimination.
2
3
practice intentionally engaging in an unlawful engaged
in If the or Court is finds that the respondent has intentionally
4
tice, and order from engaging in such unlawful may enjoin the
respondent charged in the complaint, the Court employment
5
such affirmative action as may employment be appropriate. prac-
6
Title 42 U.S.C. § 2000e-5(g).
7
IV. FINDINGS OF FACT
AND
8
CONCLUSIONS OF LAW
9
All of the evidence and supporting documents have been meticulously
10
examined. Many of the proposed Findings and Conclusions were modified, some not
11
included, and others developed by the Court. All were systematically checked
12
against the record. The Court has also read the cases cited by either party as possble
13
authority concerning any issue in the case. Based upon a complete and exhaustive
14
examination of the controlling law, briefs and arguments of counsel, and a
15
preponderance of the evidence found credible and the reasonable inferences upon drawn
16
therefrom, the Court now makes the following:
17
FINDINGS OF FACT
I.
18
Plaintiff's include all male and female employees of all job classifi-
19
cations under the jurisdiction of DOP and HEPB which were 70% or more female as
20
of November 20, 1980, or anytime thereafter.
2.
21
Defendants include the State of Washington, its agencies and institu-
22
tions, its legislature, and individuals in their official capacities for the State of
23
Washington. (Defendant's PFF #1).
3.
24
The Plaintiff's filed timely charges with the EEOC on September 16,
25
1981. The EEOC took no action on Plaintiff's charges. On April 23, 1982, the United
26
States Department of Justice issued Notices of Right to Sue to Plaintiffs. Plaintiffs
-17-
(Rev.8/82)
1
filed their complaint herein on July 20, 1982.
2
4.
The State of Washington operates two Civil Service systems. The
3
Higher Education Personnel Board (HEPB) has jurisdiction over all classified em-
4
ployees at the institutions of higher education pursuant to Wash.Rev.Code $ 28B.16.
5
The State Personnel Board (SPB), and Department of Personnel (DOP) have juris-
6
diction over all classified employees at the State agencies pursuant to
7
Wash.Rev.Code $ 41.06.
8
5.
There are approximately 45,000 classified personnel within these two
9
systems. Plaintiff's Class is constituted entirely from these classified employees.
10
(Defendant's PFF #II, p.1).
11
6. In May 1971, then Governor Daniel J. Evans signed into law an
12
amendment to the State Law against discrimination prohibiting employment discrimi-
13
nation based on sex. The amendment became law in July 1971. (Plaintiff's Exhibit 33
14
in Opposition to Defendant's Motion for Summary Judgment).
15
7.
Prior to July 1971, discriminatory acts were prohibited only on the
16
basis of age, race, creed, color, or National origin. Sex was not considered a factor
17
for which discrimination could be charged.
18
8.
In a memorandum of December 17, 1971, to Agency Representatives,
19
Leonard Nord, Director of Department Personnel of the State said, TT This new
20
amendment is broad in its impact and its passage by the legislature emphasizes not
21
only a change in attitudes about the traditional roles of men and women but also
22
recognizes the needs and realities of this age." (Id.)
23
9.
The record is replete with contemporary letters, memorandums and
24
reports, such as Leonard Nord's above noted memo of December 17, 1971. To this
25
Court they indicate an administrative history that reflects knowledge by Defendant
26
of sex discrimination in State employment since no later than March 24, 1972.
-18-
(Rev.8/82)
1
10.
2
As early as the 1950's and as late as 1973, the Defendant
3
State. ran help (Plaintiff's wanted ads in the "male" and "female" columns of newspapers deliberate
4
fide Exhibit #153). Plaintiffs offered no evidence that sex throughout th
5
responsible occupational for qualification for the jobs advertised or that they was were a bon no
6
the placement of these segregated classified ads.
7
11. Employer actions, such as use of segregated classified ads,
8
Eleanor expected Holmes effect Norton). of creating and perpetuating a segregated workforce. (Testimony have the of
9
10
12. By letter of November 20, 1973, to then Governor Daniel J.
11
Federation the State of Washington, Norm Schut, then Executive Director of the Evans, of
12
discrimination of State Employees, stated that " the Boards have Washington
13
sector and against women in salary setting that permeates through perpetuated the the
14
responded other governmental units." (Plaintiff's Exhibit #41C). Governor private
15
HEPB, and by letter of November 28, 1973, directed to Douglas Sayan, Evans
16
salary Leonard Nord, Director of DOP, stating in part that, n .If Director of
the
17
then schedules reflect a bias in wages paid to women compared to those of State's men,
18
we must move to reverse this inequity." (Plaintiff's Exhibit #41D).
19
13. The two Boards conducted a joint study, and on January
20
"There Directors of the Boards issued the results of their study. Their conclusions 8, 1974 the
21
men and are clear indications of pay differences between classes predominately include:
22
differences those predominately held by women within the State systems. held by
23
determine are not due solely to job 'worth'. Further study is necessary to Such
24
would the amount of salary differences and all classes to which a 'correction' accurately
apply. (Plaintiff's Exhibit #2).
25
26
14. Pursuant to the recommendations of both Boards, Governor
contracted for an outside, independent comprehensive study of State government Evans
-19-
821
1
2
Norman salaries Willis to look into reports of discriminatory pay scales. The
3
Personnel and & Associates was recommended by the Director of the consulting firm of
4
stration retained to perform the study. The concern of the Department of
5
discrimination. throughout this period of time was the "elimination of Evans all forms admini- of
(Plaintiff's Exhibit #41K & L).
6
7
15. The purpose of the 1974 Willis study was to "examine and
8
compared salary differences to that may pertain to job classes predominately filled identify
9
Alternative job classes predominately filled by women, based on by men
10
#2, p.1). suggestions to correct disparities were to be provided." job worth.
11
predominately The 1974 study examined 59 predominately male classifications (Joint Exhibit
12
representatives female classifications. The jobs to be examined were and 62
13
one sex of the two personnel boards. "Predominately" was defined selected by
14
An evaluation or the other. The 70% cut-off was determined by the State's as 70%
15
State committee was established, consisting primarily of representatives.
16
consensus. agencies and institutions. Evaluations of each classification were representatives arrived at by of
17
(Joint Exhibit #2, Testimony of Norman Willis).
16. The 1974 Willis report stated that:
18
19
content The conclusion of the can 121 be drawn that, based on the
men's classes, tendency for is for women's classes to be part of this
project, the classifications evaluated as a measured job
20
21
cent. together, the disparity is approximately considering 20 per-
both systems comparable job worth Overall, paid less than
22
(Joint Exhibit #2, p.20).
23
17. The 1974 report also found that the degree of discrimination
24
125% creased of as the job value increased. For jobs evaluated at 100 points, men's in-
25
women's women's pay. For jobs evaluated at 450 points, men's pay was 135% pay was of
26
pay. (Id., p.13).
-20-
1
18. In December 1974, Governor Evans held a press conference, at which
2
time he stated:
3
We found that there is, indeed, a general relationship which
4
results in an average of about twenty percent less for women
than for males doing equivalent jobs I think that steps ought
5
to be taken to rectify the imbalance which does exist There
are two basic lines. One follows the practice for those
6
positions filled primarily by males. The other by women. You
can see the disparity which does exist
7
(Plaintiff's Exhibit #41-0)
8
19. By memorandum of April 9, 1975, Directors Nord and Sayan provided
9
an update to the Willis comparable worth study. The update computed the cost of
10
eliminating discrimination by increasing the salary for all classifications with a given
11
number of points to the average salary of the male classification with that number of
12
job evaluation points. The update showed that the cost of equalizing salaries for jobs
13
with the same number of points would be approximately 10 times as much for
14
predominately female jobs as for predominately male jobs. (Plaintiff's Exhibit #5,
15
Testimony of Leonard Nord).
16
20. In 1976, Willis & Associates were retained by the Defendants to do an
17
update of the 1974 wage discrimination study. The express purpose of the study,
18
pursuant to a decision by Governor Evans, was to "establish a program leading to
19
implementation of the comparable worth study completed in September 1974."
20
(Plaintiff's Exhibit #3, p.l).
21
21. The update also evaluated 85 additional classifications and developed
22
a formula for computing comparable worth rates of compensation based on a
23
comparable worth salary line. The State continues to employ the methodology
24
developed by Willis. (Joint Exhibit #3, Testimony of Norman Willis).
25
22. This methodology purports to value each employment classification
26
on the basis of four factors: knowledge and skills, mental demands, accountability and
-21-
8,82)
1
2
final working conditions. The total of the value of these four components constituted the
point value for the Class. (Joint Exhibit #4).
3
4
23. In December 1976, just prior to completing his third term, Governor
5
Evans included a $7 million budget appropriation to begin implementation
6
comparable worth. (Plaintiff's Exhibit #41 BB). The same month, the State Personnel of
Board adopted a resolution stating that:
7
8
except the where and that salaries will be based on by
the study Board supports the correction of disparities identified
employee based such criteria do not adequately prevailing compensate rates the
9
on the concept of comparable worth.
(Plaintiff's Exhibit #41 AA).
10
11
24. Governor Dixy Lee Ray became the successor to Governor Evans
12
the 1977. She took the appropriation out of the budget even though there was a surplus in in
13
1976-77 State budget that could have been used to pay Plaintiff's their evaluated
14
worth. (Testimony of Joseph Taller).
15
Lee Ray said,
25. " In her Message to the Legislature of January 15, 1980, Governor Dixy
16
That survey revealed an average salary difference of 20 percent,
17
cost favoring men over women for work of similar complexity and value. Because of the
18
of bringing women's salaries up to men's, the only thing that we
19
include the Governor with the Legislature in this
and I
have done about that 1974 study,
20
was to have it up-dated [sic]. The update revealed that since salary increases have
21
been established on a percentage basis, the inequality gap between men's and women's
22
it salaries for similar work has now increased. The dollar cost of solution will be high;
23
probably cannot be achieved in one action. But, the cost of perpetuating
24
unfairness, within State government itself, is too great to put off any longer.
(Plaintiff's Exhibit #186, p.7).
25
26
26. In 1977, the State legislature amended the State compensation
-22-
(Rev.8/82)
1
2
DOP statutes to provide that, in conjunction with the salary survey findings, HEPB
3
should furnish the Governor and the Director of Financial Management and
4
worth. supplementary data indicating differentiation in compensation for jobs of with
5
such The amendment provided that "[a] dditional compensation needed to comparable
6
be salary dissimilarities shall not be included in the basic salary schedule eliminate but
7
maintained as a separate salary schedule for the purposes of full disclosure shall and
visibility." Wash.Rev.Code SS 41.06.160(5) and 28B.16.110. (Joint Exhibit 6A).
8
9
since 1977.
27. HEPB and DOP have each submitted supplemental salary schedules
10
11
28. Plaintiff's case does not require this Court to make its own subjective
assessment as to "comparable worth" as to the jobs at issue in this case.
12
13
29. "Comparable Worth", as defined by the Defendant, means the
14
vision of similar salaries for positions that require or impose similar responsibilities, pro-
15
AAAA). judgments, knowledge, skills, and working conditions. (SSB 3248, Defendant's Exhibit
16
17
30. In 1983, subsequent to filing of the instant suit, the State legislature
18
passed two comparable worth implementation bills: Substitute Senate Bill 3248 (SSB
19
to 3248) and Engrossed House Bill 1079 (EHB 1079). EHB 1079 appropriated $1.5 million
the increase the salaries by $100.00 a year of occupants of job classifications for which
20
current salary range is more than 8 ranges (20%) below the comparable worth
21
range, as shown by the 1982 supplementary salary schedule. The salary increase is not
22
payable until July 1984. (Defendant's PTO #2; 1983 Wash.Laws, 1st Ex.Sess., Ch.75
23
and Ch.76 S 135).
24
25
31. SSB 3248 calls for implementation of salary changes necesary to
achieve comparable worth in compliance with the findings of the DOP and HEPB
26
supplemental surveys, and provides that such implementation "shall be fully achieved
-23-
(Rev.8/82)
1
not later than June 30, 1993."
2
3
32. The total number of job classifications that have been evaluated as of
4
1982 is 284. There are other classifications that are included in Plaintiff's Class
Action which have not been evaluated at this time.
5
6
33. There are approximately 15,500 employees who are included within
7
the Plaintiff's Class Action. All of the individual Plaintiffs within the Class have not
been identified at this time.
8
9
34. In addition to testimony and documentary evidence Plaintiffs sub-
10
mitted general statistical data, prepared over a period of years by Defendant, tending
11
to show a general pattern of discrimination by the Defendant against women. This
12
data, when considered together with substantial other non-statistical evidence,
13
provides évidence of a pattern of sex discrimination in employment by the Defendant.
14
35. The State did not pay, and has not paid, predominately female jobs
15
studies. the full evaluated worth of their jobs as established by the State's own job evaluation
16
17
36. The wage system in the State of Washington has a disparate impact
18
on predominately female job classifications. Several comparable worth studies, since
19
1974, found a 20% disparity in salary between predominately male and predominately
female jobs which require an equivalent or lesser composite of skill, effort,
20
responsibility and working conditions as reflected by an equal number of job
21
evaluation points. (Joint Exhibit #4). There is a significant inverse correlation
22
between the percentage of women in a classification and the salary for that position.
23
(Testimony of Dr. Stephan Michelson).
24
37. Defendant failed to produce credible, admissible evidence demon-
25
strating a legitimate and overriding business justification. What evidence Defendant
26
did introduce did not rebut the Plaintiff's prima facie showing of disparate impact nor
-24-
[Rev.8/82]
1
did Defendant's evidence outweigh the countervailing national interest in eliminating
2
employment discrimination.
3
38. Implementation and perpetuation of the present wage system in the
4
State of Washington results in intentional, unfavorable treatment of employees in
5
predominately female job classifications. Credible, admissible, statistical evidence,
6
bolstered by relevant circumstantial evidence, supports this finding of disparate
7
treatment.
8
39. Evidence which, when considered as whole shows discriminatory
9
intent, includes the historical context out of which the challenged failure-to-pay
10
arose (FF #10, supra, fn.ll, infra); obstacles that confronted employees in the
11
predominately female job classifications and subjective employment practices util-
12
ized by the Defendant resulting in a pattern disfavoring those employees (FF #11,
13
supra); the foreseeable adverse impact of those practices (FF's #12, 16, 18, 25, supra);
14
the proposed increase in pay to the Plaintiff's since filing of the instant suit (FF #30,
15
supra); and recognition of disparate treatment by responsible State officials (FF's #12,
16
16, 18, 25, supra).
17
40. Defendant failed to produce credible, admissible evidence raising a
18
genuine issue of fact as to whether it discriminated against the Plaintiffs herein.
19
What evidence Defendant did introduce did not rebut the Plaintiff's prima facie
20
showing of disparate treatment, nor did Defendant's evidence frame the factual issue
21
with sufficient clarity so that the Plaintiff would have a full and fair opportunity to
22
demonstrate pretext.
23
41. All job classifications which were 70% or more female as of No-
24
vember 20, 1980, or anytime thereafter, are within the Class definition and all
25
employees currently in those classifications are entitled to a remedy.
26
42. Defendant presented evidence in support of its opposition to remedy.
-25-
(Rev.8:82)
1
Specifically, that evidence was as follows:
2
a.
3
that there is unemployment and a recession in the State of
4
Washington. (Defendant's PFF Nos. 20-24).
b.
5
that because of the depressed economy State revenues are
6
JJ,KK,LL). diminished. (Testimony of Mr. Joseph Taller; Exhibits
7
C.
8
that other demands on the State treasury prevent full and
9
complete implementation of comparable worth. (Defendant
PFF Nos. 16-19).
10
d.
11
that Art.8, $4 of the Washington State Constitution prohibits
deficit spending. (Defendant PFF #12).
12
e.
13
that the cost of full and complete implementation of com-
14
parable worth salary increases would be prohibitive. (Testi-
mony of Joseph Taller).
15
f.
16
that full and complete implementation of comparable worth
17
Taller). would be disruptive of State government. (Testimony of Joseph
18
19
43. Defendants have failed to present evidence that would tend to show
20
2, 110, 186).
good faith, in failing to pay Plaintiffs their evaluated worth. (Plaintiff's Exhibit Nos.
21
22
Insofar as any of the preceding Findings of Fact constitute Conclusions of
Law, they are hereby adopted as such.
23
B. CONCLUSIONS OF LAW
24
1.
25
This Court has jurisdiction in this matter under Title 28 U.S.C. S 1331
and Title 42 U.S.C. S 2000 et seq.
26
-26-
(Rev.8/82)
1
2.
2
3.
Venue is properly laid in this Court under Title 28 U.S.C. S 1391(b).
3
4
Title 28 U.S.C. 4. $$ 2201 and 2202, and this Court may grant such relief.
Declaratory Judgment is properly sought by Plaintiffs pursuant to
5
State Law is denied as a matter of judicial discretion.
Pendent jurisdiction with regard to the Plaintiff's Claims based on
6
5.
7
Plaintiff's claims, based on sex-segregation, are dismissed.
6.
8
The evidence is overwhelming that there has been historical
9
nation nation has against women in employment in the State of Washington, and that discrimi-
10
nation. been, and is manifested by direct, overt and institutionalized discrimi- discrimi-
11
7.
12
Sexual discrimination existed in State employment prior
13
time. continued after the 1972 Amendment to Title VII, and is continuing at the present to and
14
8.
15
Plaintiffs can establish a prima facie case of sexual discrimination in
16
employment 9. under either the theory of disparate impact or disparate treatment.
17
practice is Defendant's system of compensation.
Under the disparate impact theory, the objective facially neutral
18
10.
19
The Defendant's system of compensation has a disparate
20
Civil employees in predominately female job classifications in violation of Title impact upon
21
Rights 11. Act of 1964, as amended March 24, 1972, Title 42 U.S.C. $ 2000e, VII et of the
22
business consideration justifying discrimination.
The Defendant has failed to demonstrate a legitimate and overriding seq.
23
12.
24
The Defendant's implementation and perpetuation of the
25
employees system of compensation is intentional and results in unfavorable present
26
Civil in predominately female job classifications in violation of Title treatment the of
Rights Act of 1964, as amended March 24, 1972, Title 42 U.S.C. $ 2000e, VII et of seq.
-27-
(Rev.B:82)
1
2
13. Discriminatory intent is established by (a) the deliberate
3
of an approximate 20% disparity in salaries between predominately perpetuation
4
points; predominately (b) female job classifications with the same number of job male and
5
percentage other statistical evidence including the inverse correlation between evaluation
6
application of women in a classification and the salary for the classification; the
7
female of subjective standards which have a disparate impact on (c)
8
employees jobs; (d) admissions by present and former State officials that predominately
9
failure in predominately female jobs are discriminatory; and, (e) the wages Defendant's paid to
10
to 14. pay the Plaintiffs their evaluated worth as established by the Defendants.
11
The Defendant has failed to rebut Plaintiff's showing of
12
this treatment, case. or to establish any of the available affirmative defenses which disparate apply to
13
14
15. The Plaintiffs have met their burden of proof to show that back
15
prevent and injunctive relief is necessary to make whole the victims of discrimination and pay to
16
perpetuation 16. of the Defendant's discriminatory system of compensation.
17
The Tenth Amendment to the United States Constitution is
18
case to an award of back pay or injunctive relief in a Title VII employment discrimination not a bar
against a public employer.
19
20
to an award of back pay and injunctive relief.
17. The cost of correcting sex-based wage discrimination is not a defense
21
22
18. Disruption resulting from action required to correct the sex-based
23
wage discrimination 19. is not a defense to an award of back pay and injunctive relief.
24
Chapter 75 (SSB 3248) and Chapter 76, S 135 (EHB 1079), 1st
25
the Wash. court Laws 1983, do not provide an adequate remedy for the discrimination found Ex.Sess.,
26
continue because they provide no specific plans for relief, allow discrimination by to
for ten years, and are not otherwise binding upon the Defendant.
-28-
(Rev.8/82) 8/82)
1
20. Defendants have not produced evidence of good faith in failing to pay
2
Plaintiffs their evaluated worth.
3
21. Plaintiffs are entitled to Declaratory Judgment.
4
22. Plaintiffs are entitled to injunctive relief against the continuation
5
and repetition of the acts or conduct declared by these Conclusions of Law to be in
6
violation of Plaintiff's rights under Title VII.
7
23. All individual Class members are entitled to back pay for work
8
performed within the confines of the Class definition at any time since September 16,
9
1979.
10
24. Defendant has not evaluated all of the job classifications that involve
11
Plaintiff's Class herein.
12
25. The individual members of Plaintiff's Class, who are entitled to back
13
pay, have not been identified at this time.
14
26. Defendant should evaluate all relevant job classifications and identify
15
all persons entitled to back pay.
16
27. This Court should retain continuing jurisdiction of this case to grant
17
such further relief as may be found by the Court to be appropriate, and to assure
18
compliance with the Declaratory Judgment and Decree entered herein.
19
DECISION
20
This is a case of first impression insofar as it concerns the implementation
21
of a comparable worth compensation system. However, it is more accurately
22
characterized as a straight forward "failure to pay" case, remarkedly analogous to
23
the recently decided County of Washington V. Gunther case. The Plaintiffs herein are
24
challenging the State of Washington's failure to rectify an acknowledged disparity in
25
pay between predominately female and predominately male job classifications by
26
compensating the predominately female job employees in accordance with their
-29-
(Rev.8:82)
1
evaluated worth, as determined by the State./9
2
3
The threshold question presented to this court is whether Defendant's
4
failure to pay the Plaintiff's their evaluated worth, under the provisions of Defen-
5
dant's comparable worth studies,/10 constitutes discrimination in violation of the
6
provisions of Title VII. The central focus of the inquiry, in a case such as this, is
7
always whether the employer is treating If some people less favorably than others
8
because of their race, color, religion, sex or national origin." International
9
Brotherhood of Teamsters V. U.S., 431 U.S. at 335 n.15. See also Furneo Construction
10
Company V. Waters, 438 U.S. 567, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). It is now a
well established legal principle that n
11
.practices, procedures or tests neutral on
12
their face, and even neutral in terms of intent cannot be maintained if they operate
13
to freeze the status quo of prior discriminatory employment practices." Griggs v.'
Duke Power Co., 401 U.S. at 430.
14
15
The record in this case shows, by a preponderance of the evidence, that the
State of Washington historically engaged in employment discrimination on the basis
16
of
17
sex;/¹ that the discriminatory practices continued after the March 24, 1972
18
amendment to Title VII;/12 and that the discriminatory practices are continuing at
the present
time./13 In fact, there is no credible evidence in the record that would
19
support a finding that the State's practices and procedures were based on any factor
20
other than sex.
21
In response to at least four (4) years of dialogue among senior State
22
officials, including the then Governor of the State of Washington, Dan Evans, the
23
Washington State Legislature passed legislation, subsequently codified as Wash.Rev.
24
Code SS 41.06.160 (5) and 28B.16.110. This legislation instructed the DOP and the HEPB
25
to furnish a supplemental comparable worth salary schedule in addition to the recom-
26
mended salary schedule. This legislation was adopted for the express purpose of
-30-
(Rev.8/82)
1
2
the providing previously the legislature with the specific dollars and cents involved in
3
and identified and ongoing disparity in pay between predominately eradicating
4
just that, predominately female job classifications. All arguments to the male
5
conclusion. arguments. There was no credible, admissible evidence contrary were
6
comparable In 1978, 1980, and again in 1982, the legislature had controverting before this
7
instant worth salary schedules. It was not until 1983, after the it the
8
comparable lawsuit, that the legislature took affirmative action to filing of the
9
more than worth scheme,/14 and even then, the implementation effort implement was the
10
present a token appropriation of $1.5 million (none of which has been paid nothing at the
time) and a ten (10) year remedial plan.
11
12
After other careful review of the record herein, this Court cannot reach
13
compensation conclusion than the State of Washington has, and is continuing to any
14
Washington, system which discriminates on the basis of sex. The maintain a
15
compensation. has failed to rectify an acknowledged discriminatory State of
16
favorably The State has, and is continuing to treat some employees disparity less in
17
than others because of their sex, and this treatment is intentional.
18
The court's finding of discrimination based on the theories of
19
VII impact, is not and disparate treatment, requires formulation of 8 remedy. disparate Title
20
.may enjoin the [discrimination]
"automatic" as to remedy. A court that finds unlawful discrimination However, If
21
appropriate,
.and order such affirmative action as may be
with or without back pay
22
each court case deems appropriate." Title 42 U.S.C. S 2000e-5(g) (1970 ed., Supp.IV). as the
.or any other equitable relief
23
24
the choice should be meticulously considered in determining the appropriate Because
25
discretionary of remedy is left to the discretion of the district courts. remedy,
26
judgment choices are not left to a court's 'inclination, but to its "However, such
is to be guided by sound legal principles.' United States V. judgment; Burr, 25 F.Cas. and its
-31-
(Rev. 8/82)
1
No. 14, 69 2d, PP. 30,35 (CC Va. 1807) (Marshall, C.J.)." Albemarle Paper Company V.
2
Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 2371, 45 L.Ed.2d 280 (1975). Equitable
3
remedies fashioned by the court may be flexible, but they still must be founded on
4
principle. "Important national goals would be frustrated by a regime of discretion
5
that 'produce[d] different results for breaches of duty in situations that cannot be
6
differentiated in policy.' Moragne V. States Marine Lines, 398 U.S. 375, 405, 90 S.Ct.
7
1772, 1790, 26 L.Ed.2d 339 (1970)." Albemarle, 422 U.S. at 417, 95 S.Ct. at 2371.
8
The Albemarle court went on to State,
9
The District Court's decision must therefore be
10
against the purposes which inform Title VII. As the measured
S.Ct., at 853, the primary objective was a prophylactic one:
observed in Griggs V. Duke Power Co., 401 U.S., at 429-430, Court 91
11
12
"It was to achieve equality of employment
tunities and remove barriers that have operated oppor- in
13
the past to favor an identifiable group of white
employees over other employees."
14
Albemarle, 422 U.S. at 417, 95 S.Ct. at 2371. Sound legal principles dictate that
15
removal of the discriminatory "barriers" requires, at the very least, injunctive relief.
16
The Defendant, State of Washington, has set forth a number of reasons
17
injunctive relief should not be formulated and enforced by this Court: (1) the
18
tremendous costs involved; (2) lack of revenue because of the depressed economy
19
Nationally, and more particularly in the State of Washington, (i.e., high unemploy-
20
ment and recession in the forest industry which provides much of the State tax
21
revenues); (3) prior State revenue commitments to education, prisons, and social
22
services; (4) the State Constitutions mandated balanced budget; (5) disruption in the
23
State's work force, and of the State's compensation scheme; (6) the State Legislature
24
has already initiated a remedy which will eliminate the sex discrimination by no later
25
than 1993; and (7) the Tenth Amendment to the United States Constitution. This
26
Court finds that Defendant's reasons are without merit and unpersuasive, for the
-32-
1
following reasons:
2
First, Title VII does not contain ". IT .a cost-justification defense com-
3
parable to the affirmative defense available in a price discrimination suit. (footnote
4
omitted)
.neither Congress nor the Courts have recognized such a defense under
5
Title VII. (footnote omitted)." Los Angeles Dept. of Water and Power V. Manhart,
6
435 U.S. 702, 716-17, 98 S.Ct. 1370, 1379-1380, 55 L.Ed.2d 657 (1978).
7
Second, Defendant's shortage of revenue, prior revenue commitments, and
8
constitutionally mandated balanced budget defenses, cannot withstand the evidence
9
produced at trial herein. It was uncontroverted that in the 1976-77 biennium the
10
State of Washington had a surplus budget/15, was cognizant of the disparity which is
11
the subject of this lawsuit/16, and did not consider the acknowledged discrimination
12
enough of a priority to divert the surplus to the victims of the discrimination. The
13
bad faith of Defendant's action is patent, and cannot be overcome at this late date
14
with arguments that sound in equity./17
15
Third, any disruption full implementation of the proposed injunctive relief
16
would effect, is a direct result of the discrimination Defendant created and has
17
maintained. Sound reasoning dictates that in any cause-effect analysis one cannot be
18
heard to argue the effect is the evil to be eradicated.
19
Fourth, the belated May 1983 appropriation did not purport to eliminate
18
20
discrimination./
At best, it indicated a change in attitude by the Defendant. As
21
the United States Supreme Court stated in International Brotherhood of Teamsters V.
22
U.S.,
23
the District Court and the Court of Appeals found upon
substantial evidence that the company had engaged in a course
24
of discrimination that continued well after the effective date
of Title VII. The company's later changes in its hiring and
25
promotion policies could be of little comfort to the victims of
the earlier post-Act discrimination, and could not erase its
26
previous illegal conduct or its obligation to afford relief to
-33-
(ev.8/82)
1
2
omitted). 422 U.S. at 413-423, 95 S.Ct. at 2369-2374. Paper (footnote Co. V.
Moody, those who suffered because of it. or. Albemarle
3
Teamsters, 431 U.S. at 341-342, 97 S.Ct. at 1857-1858.
4
5
Further, were the Court to adopt the May 1983 act of the Washington
legislature as the injunctive remedy herein, this Court would be endorsing a
6
compensation plan that works 8 grave injustice to the discriminatees. Title VII
7
remedies are now. The Courts have learned well the lesson taught by Brown V. Board
8
9
of Education of Topeka, Kansas, 349 U.S. 294, 75 S.Ct. 753 (1955), and its progeny.
Injunctive orders couched in terms of "with all deliberate speed" result in non-action.
10
This Court sees no credible distinction between endorsing a remedy to be phased in
11
over a ten (10) year period and an injunction ordering compliance "with all deliberate
12
speed."
13
It is time, right now for a remedy. Defendant's preoccupation with its
14
budget constraints pales when compared with the invidiousness of the impact ongoing
15
discrimination has upon the Plaintiffs herein.
16
Finally, Defendants argue that any remedy fashioned by this court ordering
17
the State to pay the Plaintiff's their evaluated worth, today, would be in violation of
18
the Tenth Amendment to the United States Constitution. Defendant's position is
19
incongruous, in that, while contending there is no sex discrimination in employment in
20
the State of Washington,/19 they then argue that the May 1983 Act of the legislature
21
is the only remedy this Court can order. The Court takes this novel position to mean
22
that even though sex discrimination in employment is prohibited by Title VII, which
23
withstood constitutional scrutiny, nevertheless the Tenth Amendment prevents the
24
Federal Courts from fashioning and enforcing an appropriate remedy against the
25
State. Any remedy, other than that provided by the State, would be unconstitutional.
26
There is nothing in the legislative history of Title VII that would indicate that the
-34-
(ev.8/82)
1
Federal Courts, after finding SCX discrimination in employment, could not then
2
fashion a remedy to eliminate the discrimination. This Court is certain that when
3
Congress amended Title VII in 1972 to extend liability to the States/20 this Tenth
4
Amendment challenge was considered. The Court remains of the abiding conviction
5
that the proposed injunctive relief is consistent with Title VII and the Tenth
6
Amendment.
7
The Albemarle court addressed, at length, the propriety of back pay in
8
Title VII employment discrimination cases. This Court's decision of whether to award
9
back pay must "be measured against the purposes which inform Title VII."/21 The
10
primary objective, as set forth above, "was a prophylactic one."
11
It is also the purpose of Title VII to make persons whole for
injuries suffered on account of unlawful employment discrimi-
12
nation.
Title VII deals with legal injuries of an economic
character occasioned by racial or other antiminority discrimi-
13
nation. The terms "complete justice", and "necessary relief"
have acquired a clear meaning in such circumstances. Where
14
[sex] discrimination is concerned," the [district] court has not
merely the power but the duty to render a decree which will so
15
far as possible eliminate the discriminatory effects of the past
as well as bar like discrimination in the future." Louisiana V.
16
U.S., 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965).
And where a legal injury is of an economic character,
17
"[t] he general rule is, that when a wrong has been
18
done, and the law gives a remedy, the compensation
shall be equal to the injury. The latter is the
19
standard by which the former is to be measured.
The injured party is to be placed, as near as may be,
20
in the situation he would have occupied if the wrong
had not been committed." Wicker V. Hoppock, 6
21
Wall. 94,99, 18 L.Ed.752 (1867).
22
23
The "make whole" purpose of Title VII is made evident by the
legislative history.
24
Albemarle, 422 U.S. at 418-419, 95 S.Ct. at 2372./2 22
25
Having found unlawful discrimination herein, this court is constrained by
26
-35-
.072
Rev.8/82)
1
2
objectives Albemarle to analyze the propriety of back pay consonant with the twin
3
making discriminatees whole).
of Title VII (i.e., eradicating discrimination throughout the economy statutory and
4
5
Albemarle established a threshold an employer must clear before ever
6
will be heard to rebut the presumption in favor of back pay. 23 The District Court in it
7
breach Albemarle denied back pay, in part, because the Court found that the
8
of Title VII had not been in "bad faith." The Supreme Court held "[t] employers his is
9
2374. a sufficient reason for denying back pay." Albemarle, 422 U.S. at 422, 95 S.Ct. not at
The Court then articulated the threshold as follows:
10
practice Where an which employer has shown bad faith by
11
legality he he knew to be illegal or of - highly maintaining a
conscience. - can make no claims whatsoever the questionable
12
simply But, under Title VII, the mere absence on Chancellor's
13
in the employers opens the favor. door to equity; it does not depress of the bad scales faith
14
Id. (emphasis in original).
15
Two Supreme Court opinions subsequent to Albemarle - City of
16
657 Angeles Dept. of Water and Power V. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d Los
17
3492 (1978), and Arizona Governing Committee, Etc. V. Norris, U.S. 103 S.Ct.
18
(1983), have denied back pay awards. However, both Manhart and Norris , cleared
19
the Albemarle threshold and left it intact.
20
The evidence in the instant case is clear that the State knew that Title VII,
21
as amended on March 24, 1972, prohibited states from engaging in sex discrimination
22
male in employment; that the State knew of the disparity in pay between predominately
23
notice and predominately female job classification/24; and, that the State
24
of the legal implications of conducting comparable worth studies without was on
25
It implementing a salary structure commensurate with the evaluated worth of jobs. 25
26
would seem obvious that when the State passed the 1977 legislation requiring
-36-
ev.8/821
1
submission to the legislature of comparable worth studies that the State knew its
2
employees would be entitled to pay commensurate with their evaluated worth. Any
3
other conclusion defies reason. It would then follow that the economic consequences
4
of comparable worth were predictable and foreseeable by the State. The State
5
cannot be heard at this late date to argue they were surprised, confused or misled as
6
to the legality of its actions and subsequent failure to pay.
7
There is little doubt that had the State produced evidence that the
8
unlawful discrimination was other than in "bad faith", the Manhart and Norris
9
decisions would have persuaded this court that back pay would not have been an
10
appropriate remedy. The devastating cost to a Defendant who did not act in bad
11
faith would then, and only then, become relevant. However, the record herein does
12
not lend itself to a finding that the State was acting in good faith by not paying
13
Plaintiff's their evaluated worth. Rather, the persistent and intransigent conduct of
14
Defendant in refusing to pay Plaintiffs indicates "bad faith." The principles set forth
15
in Manhart and Norris are not applicable.
16
This Court finds that the State had knowledge of the sex discrimination in
17
employment before and after the March 24, 1972 amendment to Title VII; that the
18
evidence shows the discrimination is pervasive and intentional and is still being
19
practiced by the State; and that the State is adhering to a practice of sex
20
discrimination in violation of the terms of Title VII with full knowledge of, and
21
indifference to, its effect upon the Plaintiffs.
22
Plaintiffs are entitled to declaratory judgment, injunctive relief, and back
23
pay, together with any other relief that may be just and equitable herein.
24
DECLARATORY JUDGMENT AND DECREE
25
This Judgment and Decree is based upon the Established Basic Facts and
26
Law, Findings of Fact, Conclusions of Law, and Decision of the Court heretofore
-37-
nev.8/82)
1
entered in this case, all of which by this reference are hereby made H part hereof as
2
though set forth in full herein, now, therefore it is
3
ORDERED that the Plaintiffs herein are granted declaratory judgment
4
against the Defendant State of Washington, in that the Defendant, is in violation of
5
Title VII as to the non-payment to Plaintiffs of compensation in their employment, it
6
is further
7
ORDERED that Plaintiffs are entitled to injunctive relief, it is further
8
ORDERED that the Class includes all female and male employees of all job
9
classifications under the jurisdiction of DOP and HEPB, which were 70% or more
10
female as of November 20, 1980, or anytime thereafter, it is further
11
ORDERED that the Plaintiffs, as individual members of the Class, are
12
entitled to back pay, commencing from September 16, 1979, it is further
13
ORDERED that in addition to back pay, Plaintiffs are entitled to all fringe
14
benefits. Interim earnings or amounts earnable with reasonable diligence by each
15
Plaintiff or persons discriminated against shall operate to reduce the back pay
16
otherwise allowable, it is further
17
ORDERED that this Court will appoint a Master to assist the Court in the
18
implementation of this decree, it is further
19
ORDERED that this Court will retain jurisdiction of this case to take
20
evidence, to make rulings, and to issue such orders as may be just, and proper upon
21
the facts and law and in implementation of this decree, it is further
22
ORDERED that costs and attorney's fees will be decided at a later time.
23
DONE at Tacoma, Washington, on this 14th day of December, 1983.
24
25
26
UNITED STATES DISTRICT JUDGE
-38-
ev.II/82)
1
FOOTNOTES
2
3
The individuals who filed charges with the EEOC are the same individuals
4
who were named in the complaint, filed in this Court on July 20, 1982,
seeking to represent the class. The individuals are: Ms. Willie Mae Willis,
5
Mr. Milton Tedrow, Ms. Gail Spaeth, Ms. Penney-Comstock Rowland, Ms.
Lauren McNiece, Ms. Peggy Ilolmes, Ms. Exa T. Emerson, Ms. Helen
Castrilli, and Ms. Louise Peterson.
6
2/
7
The November 20, 1980 date was derived by counting back 300 days from
the September 16, 1981 date when the class representatives (see Footnote 1)
filed charges with the EEOC. Williams V. Owens-Illinois, Inc., 665 F.2d
8
918, 923, n.2 (9th Cir. 1982).
9
3/
See Footnote 1, supra.
10
This quotation is taken from the charges filed by AFSCME and WFSE-
11
AFSCME Council 28. The wording of the charges filed by the individual
Plaintiffs is similar, varying according to the job held by the individuals.
12
5/
Usery, Hodel, and EEOC V. Wyoming, involved challenges to "congressional
13
commerce power legislation." That such legislation is distinguishable from
"congressional S 5 of the Fourteenth Amendment po er legislation," such
as Title VII, is clear from the following excerpt from Hodel:
14
National League of Cities expressly left open the question
15
"whether different results might obtain if congress seeks to
16
affect integral operations of state governments by exercising
authority granted it under other sections of the Constitution
such as the spending power, Art.I, $8, cl.l, or S 5 of the
17
Fourteenth Amendment," 426 U.S. at 852, n.17, 96 S.Ct., at
18
2474, n.17. In Fitzpatrick V. Bitzer, 427 U.S. 445, 96 S.Ct.
2666, 49 L.Ed.2d 614 (1976), the Court upheld Congress' power
19
under S 5 of the Fourteenth Amendment to authorize private
damages actions against state governments for discrimination
in employment. The Court explained that because the Amend-
20
ment was adopted with the specific purpose of limiting state
autonomy, constitutional principles of federalism do not re-
21
strict congressional power to invade state autonomy when
Congress legislates under $ 5 of the Fourteenth Amendment.
22
Id., at 452-456, 96 S.Ct., at 2669-2671.
23
Hodel, 452 U.S. at 287, n.28, 101 S.Ct. at 2366, n.28.
24
The Three prong test is as follows:
25
(1)
The complaint "touches a sensitive area of social policy upon
26
which the federal courts ought not to enter unless no alter-
native to its adjudication is open."
-39-
AO 72
Rev.B/82)
1
(2)
"Such constitutional adjudication plainly can be avoided if a
definitive ruling on the state issue would terminate the con-
2
troversy."
3
(3)
The possible determinative issue of state law is doubtful.
4
Badham, at 4730.
5
The three-prong test, set forth in Footnote 6 is conjunctive, as opposed to
disjunctive. Accordingly, failure of any one prong compels a court's denial
6
of a motion to abstain.
7
8/
Arizona Governing Committee, Etc. v. Norris,
U.S.
, 103 S.Ct. 3492
(1983).
8
There have been four (4) "Comparable Worth" studies conducted by the
9
Department of Personael and the Higher Education Personnel Board - the
original study in 1974, and update studies in 1976, 1979 and 1980.
10
Using trained evaluation committees, the same point-factor evaluation
11
system was used in each study. Each job class was assessed using the
:
following four evaluation components:
12
(1) Knowledge and Skills
13
Job Knowledge
Interpersonal Communications Skills
14
Coordinating Skills
15
(2)
Mental Demands
Independent Judgment
16
Decision making, problem solving Requirements
17
(3)
Accountability
Freedom to Take Action
18
Nature of the Job's Impact
Size of the Job's Impact
19
(4)
Working Conditions
20
Physical Efforts
Hazards
21
Discomfort Environmental Conditions
22
The total of the value of these four components constituted the final point
value of the class.
23
10/
See Footnote 9, supra.
24
11/
In 1888 one Nevada M. Bloomer filed A lawsuit in the District Court at
25
Spokane Falls, Washington. Bloomer V. Todd, Et. Al., 3 Wash. Terr. 599
(1888). She was suing certain judges of election who were conducting the
26
regular municipal election in one of the wards in the City of Spokane Falls
-40-
1
for fraudently, maliciously and without sufficient cause, and with intent to
injure her, refusing to receive her ballot. The District Court sustained
2
Defendant's demurrer to the complaint. The Supreme Court of the
Territory of Washington, on August 14, 1988, affirmed the District Court.
3
The only issue in the case was whether females were qualified electors
4
under the laws of Washington Territory? One of the admitted facts was
"the Plaintiff is 8 woman." Id., at 611. Mr. Chief Justice Jones delivered
5
the opinion of the Court. In reaching his conclusion, the learned Chief
Judge stated: "In 1852, when this act was passed, the word 'citizen' was
6
used as a qualification for voting and holding office, and, in our judgment,
the word then meant and still signifies male citizenship, and must be so
7
construed." Id., at 623. (Langford, J., and Allyn, J. concurred.)
8
In view of the foregoing it is apparent that discrimination against women
was lawful in Washington Territory. In fact, discrimination was lawful in
9
the State of Washington until 1971 when the State's Civil Rights Law was
amended to prohibit sex discrimination.
10
0
Perhaps Defendant adopted the practices and concepts of sex discrimi-
11
nation against women in employment as just another manifestation of
centuries old discriminatory attitudes and practices of a male dominated
12
society. The Declaration of Independence probably sheds some light on the
practices and concepts of sex discrimination so rampant in this country.
13
That all men are created equal; That they are endowed by their
creator with certain inalienable rights; That among these are Life, Liberty,
14
and the Pursuit of Happiness." The female gender is conspicuously absent
in the Declaration of Independence.
15
12/
FF Nos. 12, 13, 16, 18, 24, and 25.
16
13/
FF Nos. 27, 30, 31, 35, 36, and 38.
17
14/
Wash.Laws 1983, Ist Ex.Sess., Ch.75 and Ch.76 § 135.
18
15/
FF No. 24.
19
16/
FF Nos. 18 and 25.
20
17/
The Defendant argues that it is ironic that the State of Washington was the
21
first in the nation to consider and adopt the comparable worth rating
system, and now is the first to.be penalized with a devastating court ruling.
22
This court is of the opinion that it is indeed ironic and tragic that the State
of Washington is in the eighth decade of the Twentieth Century attempting
23
to use the American legal system to sanction, uphold and perpetuate sex
bias. Defendants are struggling to maintain attitudes and concepts that
24
are no longer acceptable under the provisions of Title VII.
25
18/
Wash.Laws 1983, 1st Ex.Sess., Ch.75.
26
19/
The State's own studies show sex discrimination. No matter what Defen-
-41-
Rev.H/82)
1
dant elects to call it - disparity, pay equity or whatever, the only effect is
sex discrimination. What other logical reason can there be for
2
the Defendants adoption of the "comparable worth" theory of compen-
sation.
3
20/
1972 Amendment, Subsec.(a). Pub.L.92-261, S 2(1).
4
21/
The Ninth Circuit Court of Appents succinetly set forth the purposes
5
underlying the passage of Title VII by the Congress of the United States in
Lynn V. Regents of the University of California, 656 F.2d 1337, (9th Cir.
6
1981).
7
While we might not have made the statement in the text which
accompanies this note a number of years ago, today its truth
8
seems self-evident. The history of our nation reflects the
evolution of our understanding of the nature of man (in the
9
generic sense of the word) and the legitimate aspirations and
rights of the individual. Attitudes which seemed benign at one
10
time are now understood to be discriminatory. Compare Brown
V. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98
11
L.Ed. 873 (1954) with Plessy v.Ferguson, 163 U.S. 537, 16 S.Ct.
1138, 41 L.Ed. 256 (1896). The beliefs that women should not
12
have the right to vote, to practice law, or serve on the United
States Supreme Court, were once reflective of the majority
13
view, and the law. We now understand somewhat belatedly,
that these concepts reflect a discriminatory attitude. Today
14
any person is free to hold to such concepts, but such concepts
may not serve as the basis for job-related decisions in employ-
15
ment covered by Title VII. Other concepts reflect a discrimi-
natory attitude more subtly; the subtlety does not, however,
16
make the impact less significant or less unlawful. It serves only
to make the court's task of scrutinizing attitudes and motiva-
17
tion, in order to determine the true reason for employment
decisions, more exacting. We are saying only what Title VII
18
commands: when Plaintiffs establish that decisions regarding
academic employment are motivated by discriminatory atti-
19
tudes relating to race or sex, or are rooted in concepts which
reflect such discriminatory attitudes, however subtly, courts
20
are obligated to afford the relief provided by Title VII.
21
22/
Although the Albemarle decision involved Negro claimants contesting
employment discrimination, this Court can see no realistic distinction
22
between discrimination on the basis of race or sex. The results are just as
invidious and devastating. There is nothing in Title VII that distinguishes
23
between race and sex in the employment discrimination context.
24
23/
A finding of a violation of Title VII presumptively entitles the victims of
discrimination to back pay and other appropriate equitable relief.
25
Albemarle Paper Co., supra; Franks V. Bowman Transportation Co., 495
F.2d 398 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 747 (1976). This
26
presumption is justified by both the deterrent and "make-whole" purposes
-42-
:Rev.8/82)
1
at the core of Title VII. Albemaric.
2
24/
FF Nos. 18 and 25.
3
25/
Plaintiff's Exhibit 110.
4
5
6
7
8
9
10
11
12
13
14
15
16
1.7
18
19
20
21
22
23
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-43-
(Re .8/82)
GREAM
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE WESTERN DISTRICT OF WASHINGTON
AT TACOMA
3
4
AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL
)
EMPLOYEES, et al.,
5
)
NO. C82-465T
6
Plaintiffs,
)
-vs-
7
)
STATE OF WASHINGTON, et al.,
8
)
INJUNCTION
9
Defendants.
)
10
11
Following a trial on the merits of the above captioned case, this Court
12
found Established Basic Facts and Law, and issued Findings of Fact, Conclusions of
13
Law, Decision, and Declaratory Judgment and Decree, to the effect that Defendant
14
had discriminated against Plaintiffs on the basis of their sex in violation of Title VII
15
of the Civil Rights Act of 1964, as amended March 24, 1972, Title 42 U.S.C. $ 2000e,
16
et seq. On the basis of said Declaratory Judgment and Decree, Plaintiffs are entitled
17
to injunctive and affirmative relief against the Defendant, its officers, agents,
18
members, employees, successors and all persons in concert or participation with
19
them.
20
Both parties have submitted motions and briefs and have made oral
21
argument to the Court concerning general and specific questions and problems which
22
will or may arise as the Courts decision is implemented.
23
The Court is convinced that the decision must be fully implemented as
24
rapidly and orderly as is practicable under the circumstances. In order to facilitate
25
that implementation, it is necessary and desirable to define with some specificity the
26
obligations of the defendant under the decision. The Court is aware that there might
(Rev.8/82)
1
be certain problems and circumstances which a Court of equity must heed.
2
The Court will appoint a special master to assist it in resolving future
3
matters which arise under the decision and in implementing it.
4
It is not intended that anything in this injunction shall be construed to limit
5
or qualify in any manner the decision herein, or the rights of the parties under the
6
decision. Now, therefore, it is hereby
7
ORDERED that:
8
1.
Defendant, State of Washington, shall forthwith cease and desist any
9
and all actions which would maintain or perpetuate their sex discriminatory practices
10
as to the compensation of Plaintiffs in this matter.
11
2.
Defendant, State of Washington, shall forthwith pay each and every
12
individual Plaintiff herein, the amount of compensation that they are entitled to
13
receive as evaluated under Defendant's "comparable worth" plan as adopted in May
14
1983.
15
3.
Defendant shall forthwith conduct additional class evaluations within
16
the Department of Personnel (DOP) and High Education Personnel Board (HEPB), and
17
shall provide the Court with a full and complete list of each and every individual
18
employee that is entitled to relief in this litigation.
19
4.
Defendant, State of Washington, shall not harass, retaliate against, or
20
otherwise discriminate against any of the individual or representative Plaintiffs in
21
this litigation.
22
5.
Defendant, State of Washington, shall not harass, retaliate against, or
23
otherwise discriminate against any person who obtains any relief by virtue of, or as a
24
result of, this litigation.
25
6.
This Court shall retain jurisdiction of this case for the purpose of
26
implementation and enforcement of this Order, including, but not by way of
-2-
(Mev.8/82)
1
limitation, the issuance of such additional orders as may be necessary and as the
2
interest of justice may require, to insure that no acts of discrimination on the basis
3
of sex, as to the terms and payment of compensation, shall be committed against any
4
of the claimants awarded relief in this case, in their enjoyment of that relief, who
5
are now or who may hereinafter become employees of the State of Washington.
6
7.
After final judgment and after all of the appropriate relief for the
7
claimants has been granted, and implemented in the case, either party hereto may
8
move the Court to terminate its continued jurisdiction.
9
DATED this 14 day of December, 1983, at Tacoma, Washington
10
11
UNITEDISTATES DISTRICT COURT JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
-3-
1
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
2
AT TACOMA
3
AMERICAN FEDERATION OF STATE,
)
4
COUNTY, AND MUNICIPAL
EMPLOYEES, et al.,
)
NO. C82-465T
5
Plaintiffs,
)
6
-vs-
)
7
STATE OF WASHINGTON, et al.,
)
ORDER APPOINTING
8
SPECIAL MASTER
Defendants.
)
9
10
11
Because of the complexity and scope of this litigation and orders entered
12
therein, the Court finds it imperative to appoint a Special Master to monitor
13
compliance with, and implementation of the orders issued by the Court in this case. In
14
making this appointment, the Court is exercising its inherent authority as a Court of
15
Equity to provide itself with appropriate instruments required for the performance of
16
its duties. It is therefore
17
ORDERED that EDWARD M. LANE is hereby appointed by this Court, as
18
Special Master empowered to monitor compliance with and implementation of the
19
relief ordered in this case. The master shall also advise and assist Defendants to the
20
fullest extent possible.
21
1.
In order to carry out his duties:
22
(a) The Master shall have unlimited access to any facilities, or
23
buildings, in Olympia, Washington and at such other places
24
where records and files may be maintained under the custody
25
and control of the State Department of Personnel and the
26
Higher Education Personel Board.
(Rev.8/82)
1
(b)
The Master shall have unlimited access to relevant records,
2
files and papers maintained by the State Department of Person-
3
nel and the Higher Education Personnel Board, both agencies of
4
the State of Washington, to the extent necessary to perform his
5
duties of monitoring compliance and implementation of relief
6
ordered in this case.
7
(c)
The Master shall have access to all staff members and em-
8
ployees of the Department of the State Personnel Board, and
9
the Higher Education Personnel Board. He may engage in
10
informal conferences with such staff members and employees,
11
and such persons shall cooperate with the Master and respond to
12
all inquiries and requests of the Master related to compliance
13
with and implementation of the Court's orders in this case.
14
(d)
The Master may require written reports from any staff mem-
15
bers or employees of the Department of Personnel and the
16
Higher Education Personnel Board, with respect to compliance
17
with and implementation of this Court's Orders.
18
(e)
The Master may order and conduct hearings with respect to
19
Defendants' compliance with and implementation of this Court's
20
Orders and all related matters.
21
(f)
The Master may hire assistants and/or independent specialists
22
and experts only after giving prior notice to Defendants and
23
with permission of the Court.
24
(g)
With respect to Paragraphs (a) through (e) above, the Master
25
may act by himself, or through others appointed by him
26
pursuant to Paragraph (f) above.
-2-
(Rrv.8/82)
1
2.
The Master shall file reports with the Court every two (2) months, or
2
more often as he deems necessary, in which he shall make findings concerning
3
Defendants' compliance with and implementation of the provisions of the Court's
4
orders and the need, if any, for supplemental action in this case. These findings may
5
be based upon reports submitted to the Master by either party; reports submitted to
6
the Master by independent experts appointed by the Master; his own observations and
7
assessments of Defendants' progress toward compliance; his interviews with the
8
Department of Personnel and the Higher Education Personnel Board, or of the staff
9
and employees of the same and evidence obtained by him. The Master shall report to
10
the Court, no later than ninety (90) days, whether the Court's orders in this case have
11
been substantially complied with and whether or not the compliance has been
12
continuing for a sufficient length of time to make a lapse into non-compliance
13
improbable. If the Master finds that the Court's Orders in this case have been
14
substantially complied with and that such compliance has been continuing for a
15
sufficient length of time to make a lapse into non-compliance improbable, the Master
16
will recommend his discharge and the termination of the Court's active monitoring of
17
its orders in this case.
18
(a) In those instances in which the Master's findings are not
19
preceded by a hearing, the Master will provide written notifi-
20
cation to all parties of his findings and recommendations to the
21
Court.
22
(1)
Any party may file written objections to the findings or
23
recommendations of the Master within ten (10) days of
24
receipt. The party objecting may request a de novo
25
hearing before the Master. A copy of the objections and
26
request for a hearing shall be served on the other parties.
-3-
(Rov.S/82)
1
(2) If no party files written objections within the requisite
2
time period, the Master will proceed to file his findings
3
and recommendations with the Court.
4
(3) If no party requests a hearing before the Master, the
5
parties shall be precluded from requesting a hearing
6
before the Court, absent a showing of exceptional circum-
7
stances, except as the Court may otherwise order upon
8
application of any party in the interest of justice.
9
(b) Where the Master has held a hearing, either upon his own
10
motion or upon the request of a party, the Master will file his
11
findings and recommendations with the Court. Copies of the
12
Master's report to the Court will be served on all parties.
13
Master's reports based on such hearings may only be challenged
14
pursuant to the following provision:
15
(1)
If any party objects to any or all of the findings contained
16
in the Master's report, said party shall file written ob-
17
jections within ten (10) days of receipt of the report. The
18
objecting party shall note each particular finding to which
19
objection is raised; shall provide proposed alternative
20
findings; and may request a hearing or oral argument
21
before the Court.
22
(2) Any request for a hearing before the Court must include a
23
list of witnesses and documents to be presented to the
24
Court. A copy of the objections, proposed findings, and
25
any request for a rehearing shall be served on all parties.
26
-4-
(Rev.8/82)
1
(c) The Master's findings shall be accepted by the Court unless
2
shown to be "clearly erroneous." Any evidence not previously
3
presented to the Master will be admitted at a hearing before
4
the Court only upon a showing that the party offering it lacked
5.
a reasonable opportunity to present the evidence to the Master.
6
3.
Compensation to the Master will be paid in the following manner: On
7
at least a monthly basis the Master will submit an affidavit of his itemized time and
8
expenses for approval by the Court; upon approval of such time and expenses the
9
Court will order Defendants to pay the approved amount, which shall be taxed as part
10
of the interim costs of this case against Defendants in their official capacities;
11
Defendants will make such payments as ordered by the Court within thirty (30) days
12
of the filing of the Court's order for payment.
13
4.
All monitoring of compliance with and implementation of the Court's
14
orders in this case shall be conducted and supervised by the Special Master.
15
DATED at Tacoma, Washington this 14" day of December, 1983.
16
17
18
UNITEDSTATES DISTRICT JUDGE
19
20
21
22
23
24
25
26
-5-