Citation
Comparable worth in public employment

Material Information

Title:
Comparable worth in public employment
Creator:
Coe, Fred Douglas
Publication Date:
Language:
English
Physical Description:
xi, 489 leaves : ; 28 cm.

Subjects

Subjects / Keywords:
Pay equity -- United States ( lcsh )
Women -- Employment -- United States ( lcsh )
Pay equity -- Law and legislation -- United States ( lcsh )
Employees -- Salaries, etc ( fast )
Pay equity ( fast )
Pay equity -- Law and legislation ( fast )
Women -- Employment ( fast )
Officials and employees -- Salaries, etc -- United States ( lcsh )
United States ( fast )
Genre:
bibliography ( marcgt )
non-fiction ( marcgt )

Notes

Thesis:
Thesis (D.P.A.)--University of Colorado, 1987.
Bibliography:
Includes bibliographical references and index.
Statement of Responsibility:
by Fred Douglas Coe.

Record Information

Source Institution:
University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
775601056 ( OCLC )
ocn775601056
Classification:
HD6061.2.U6 C64 1987 ( lcc )

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COMPARABLE WORTH IN PUBLIC EMPLOYMENT by Fred Douglas Coe B.S.B.A., Rockhurst College, 1975 M.P.A., University of Colorado, 1978 A dissertation submitted to the Faculty of the Graduate School of Public Affairs of the University of Colorado in partial fulfillment of the requirements for the degree of Doctor of Public Administration Graduate School of Public Affairs 1987

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This Dissertation for the Doctor of Public Administration degree by Fred ,Douglas Coe has been approved for the Graduate School of Public Affairs by Mark A. Emmert Arthur C. Underwood Date

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Coe, Fred Douglas (D.P.A., Public Administration) Comparable worth in Public Employment Thesis directed by Professor Jay M. Shafritz The implementation of comparable worth programs of wage determination is an emerging trend in public employment. State and local government employers are spearheading the initiative. Comparable worth is a contemporary pay issue that has generated widespread controversy over the undervaluation and undercompensation of the employed woman's work and wages. Comparable worth proponents contend that public and private employers pay women employed in predominantly female job classes lower relative wages than employers pay men employed in predominantly male job classes, though the sexes' job classes are of relative comparable worth value. As a compensation doctrine, pay based upon the comparable worth concept seeks to equitably correct the historical sex-based pay discrimination of employed females working in sex segregated jobs. Female job sex segregation and the underevaluation and undercompensation of the working woman's work and wages result from their being employed in occupationally distinct job classes relative to those of working men.

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iv Employed women and comparable worth supporters argue that, among other things, Title VII of the Civil Rights Act of 1964 prohibits work classification segregation and sex-based pay discrimination. They further assert that federal courts should use the Title VII employment statute as the legal instrument to remedy job sex segregation and wage discrimination by demonstrating that female-male work classifications are of relative comparable worth value to employers. Comparable -worth gained notoriety in the early 1970s. During this. period, the first comparable worth job evaluation study was conducted in the nation. Since then, the pay dispute has fueled and been the subject of fierce trials in the federal courts. This dissertation examines the comparable worth employment topic and its cultural, economic, legal, political, and social aspects. It assesses its history, its relation to job evaluation, its lawful merits, its treatment by state and local employers and, lastly, points to the future of comparable worth. The form and content of this abstract are approved. I recommend its publication. Signed

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To Samuel S. Coe, Sr. and Eugene N. Coe, In loving memory

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vi ACKNOWLEDGMENTS Prolonged projects typically result in acknowledging and thanking many individuals for their valuable assistance and efforts in helping to bring about successful endeavors. Recognizing this, thanks are extended to the following people --my children, William and Douglas Coe: my sisters, Doris L. Coe-Clay, Nelda Coe-Head and Arimitha Coe-Penman: my brothers, Samuel S. Coe, Jr. and Nathaniel Coe: Craig S. Barnes, Esquire, Dr. Louis Fair, Jr., Bernard Fisher, Mae R. Garth, V. Steve Henderson, Georgia Hodges, Dr. Graham E. Martin, John Newsome, Isaac Nicholson, Jr., Dr. Earl W. Phillips and Dorothy Phillips, Larry Roberts, and Nicholas o. Walker. Special thanks are extended to the following special people --my mother, Iva L. Coe, Margaret Benjamin, Cynthia Barnes, Lynn Blakemore, Reuben and Wilma Conner, Caryn Davis, Dr. Martha Harris Fair, Joy A. Grune, Dean Marshall Kaplan, Clorie Lavato, Ahna Mestman, George Mosley (honorary committee member), Betty Randell Dr. Helen Remick, and to committee members Dr. Jay M. Shafritz, Dr. Mark A. Emmert and Arthur C. Underwood, Esquire.

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CONTENTS List of Figures.................................. xi CHAPTER I INTRODUCTION 1 CHAPTER II THE HISTORY OF COMPARABLE WORTH 19 Comparable Worth: Supporters and" 23 The Origins of Comparable Worth.............. 31 Socialization and Sex 'Roles................... 33 Emerging Occupational Sex 46 The Workplace and Comparable Worth 49 CHAPTER III JOB EVALUATION AND COMPARABLE WORTH III Job Evaluation: Its Role and Scope III The Goals and Uses of Job Evaluation Job Evaluation: Its Finer Points 121 A Historical View of Job Evaluation 129 Traditional Job Evaluation Systems 141

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vi i i Assigning Wages to Work...................... 157 The Benchmark Method......................... 161 Job Evaluation and Comparable Worth 165 Revamping Job Evaluation Procedures to Meet the Comparable Worth Challenge 167 The Hay and Willis Methods 179 The KSAR Method 190 CHAPTER IV COMPARABLE WORTH: A LEGAL FRAMEWORK ANALYSIS 239 A Historical Perspective.......... 242 The Evolution of the Equal Pay Act 251 The Civil Rights Act of 1964 275 Comparable Worth and Title VII 295 Lemons vs. City and County of Denver 302 Other Title VII Cases 0... 307 International Union of Electrical Workers vs. Westinghouse................... 311 Gunther vs. County of Washington,Oregon 314 AFSCME vs. State of Washington............... 322 Washington State Comparable Worth CHAPTER V COMPARABLE WORTH IN PUBLIC EMPLOyMENT 393 Identifying, Documenting, and Correcting Sex-Based Disparities...................... 395 The Dean of State and Local Government Initiatives .. 413

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ix Information and Data Collection......... 417 Job Evaluation Studies 420 Pay Equity Policy and Implementation 423 Enforcement of Existing Laws 425 Public Sector Efforts: Specific Data 427 Washington State: A Case in Point 431 CHAPTER VI COMPARABLE WORTH: SUMMARY AND CONCLUS ION. 455 BIBLIOGRAPHY. 476

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LIST OF TABLES Table I. State and Local Governments Which Have Taken Pay Equity Initiatives Described x in "Who's Working for Working Women?"... 432 II. Recent Pay Equity Legislation 433

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xi LIST OF FIGURES Figure 1. Most Women Work Because of Economic Need... 63 2. Fully Employed Women Continue to Earn Less than Fully Employed 3. Job Evaluation Methods and Compensable 4. Comparable Worth-Implemen ta tion Model...... 211

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CHAPTER I INTRODUCTION Comparable worth is the salary-based correction for employed females who work in predominantly female occupations but are paid proportionately lower wages than males who work in predominantly male occupations. Occupationally, job sex segregation and wage discrimination among and between employed females and males are new social employment phenomena.l Each has beginnings which reach well back in history. Moreover, the concepts of job segregation and pay discrimination are as old as male-female gender distinctions and the concept of work itself. With their beginnings grounded in antiquity, male-female job sex segregation and wage discrimination are products of bygone societies. For the most part, past society almost always fostered a gender-based difference between its female and male members. On one hand, the dominant ethics, norms, and values acted to establish the sexes' social role separation. On the other, the socialization resulting from the dominance of ethics, values, and norms caused men and women to be

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socially differentiated with respect to their handling and treatment. For example, the social decorum of the time was such that white females were not afforded some amenities allowed white males. Carrying the example further as it relates to society's nonwhites, blacks and minorities did not enjoy the economic, legal, political, and social opportunities and privileges ascribed to whites. Hence, the social status of the various races of people who comprised society differed remarkedly. The white male controlled society. He further exercised dominion over almost all facets of societal life.2 His ethics, norms, and values were dominant. The male sex member held and maintained control, dominion, and power over society's vast riches and resources. Men amassed their control and power to further enhance their mastery and reins over the cultural, economic, legal, political, and social institutions. The social influences from their control over social institutions enable man to dictate social occurrences and outcomes. Socially, the edicts of white males made it abundantly clear that race and sex role stratification between them and nonwhites, and between them and women--white and nonwhite included--were social realities.

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3 Relative to the white woman, male dominance relegated her to a position of so6ial inferiority. Clearly, the dominance of white males created a man's world. Men did not regard women as their social equals; this both understood and widely accepted by females. Distinctively, the social roles of males and females varied. The sexes' gender-based socialization roles became stratified in almost all respects relative to the cultural, economic, legal, political, and social happenings of the times. The male's and the female's general social handling and treatment were vastly different. By and large, society's females accepted the "socializations" of the day and, for this reason, dared not pierce the social line of demarcation men erected between themselves and women. The man looked upon the woman as being just that--a woman. Men regarded women as having primarily four well-defined general social roles: matrimony, child-bearing, child-rearing, and domesticity. The woman's domestic role limited her to the confines of the home.3 Men did not want women outside the home and in the world of paid work, competing for their jobs. Men promoted their .control and power over women by using male influence, vis-a-vis resource availability,

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4 resource allocation, and resource distribution, to strengthen their aiready tight control over this they accomplished by affording males preferential treatment. This' preferential treatment for males acted to reinforce the all-male patriarchal social system. Men determined what work had to be done, who would perform it, and how much would be paid to workers performing the jobs. Typically, men, not women, got the jobs when work was available. Not only did men get the jobs, but they got the best ones. Women usually got the jobs men chose not to work or had abandoned for higher-paying ones. Socially, men did not want women to work. They felt the woman's place was in the home and not out in the world of work vying against them for that scarce economic resource called wages. Working men, like working women, needed paid work and the wages derived from it to provide for their subsistence and for that of their In limiting women's presence and numbers in the world of work, men utilized their legal and political powers to prevent women and children from working. Using their political influences, men enacted protectionist labor laws specifically aimed at barring women and children from becoming employed in certain types of occupations, from working during certain times of the day, and from

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S working certain days of the week, among other things. These restrictive labor laws were effected to eliminate I I 4 rna e-ema e compe Ion. The occupational socialization of employed females and males, like most other kinds of socialization, stemmed from the man's general control over society, but more expressly from his dominance over society's ethics, morals, norms, and values. Socially and economically, women lacked the resources to enable their sex to improve their general handling and Socially, they accepted the reality of the day--that men looked upon women as inferior. Further, women too accepted that from an inferior social position, little or nothing could be done by them to change male-dominated values about the female roles of matrimony, domesticity, child-bearing, and child-rearing. Occupationally, the female sex fared even worse. "Like men, some women had to work. They too worked because of economic necessity.S Like men, women became employed to support themselves and their families. .The only difference between working men and women was that the latter was' not afforded the same job opportunities the former received. As examples of this, if women worked, they became employed in the poorest-paying jobs and labored under the

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6 poorest working conditions. Since some women had to work, they were forced to take jobs that men refused. The constant influx of women into jobs men refused to work or, alternatively,' those they abandoned for higher wages had a twofold negative impact on the employed female's occupational status. First, it caused the employed woman's occupational sex segregation in paid jobs. Second, and perhaps even more devastating, the ongoing entry of females into already overcrowded job fields further eroded the paid wages of the work positions. Hence, women's occupationally work situation had the debilitating effects of causing her wages to remain low and depressed. Consequently, from a historical perspective, female occupational segregation and wage discrimination came about as a result of how now distant societies differentiated between working men and women in the world of paid work. To sum up, female-male job sex segregation and pay discrimination do hav,e ancient beginnings that extend back to a point in time when social environmenti fostered role stratifications between the sexes. The male sex reaped the rewards from these imbalanced social situations because that gender controlled and dominated these societies. Men,

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not women, were the recipients of the best jobs and the best wages. Women were not the recipients of the best jobs and best wages because the prevalent social conditions and situations spoke for themselves. Truly, it was a man's world. Men dominated in almost every dimension of societal life and, at these specific times in history, women lacked resources and social control and power over their own destiny. Contemporarily, women's social status has undergone massive transformation since the days of old. Their status has been elevated culturally,economically, legally, occupationally, politically, and socially. Occupationally, however, though employed females have substantial workforce gains throughout the years, they are still segregated by sex in paid jobs and earn significantly lower wages than employed males do. Although the employed woman's economic situation has markedly improved, both in terms of the jobs they work and the wages they are paid, the operative elements of employment discrimination perpetrated upon them still preclude the employed female from achieving full economic and social equality with men. In this respect, by and large, the United State workforce d 6 remaIns sex segregate Men and women occupy distinct job categories because of their sex. As a consequence

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8 of sex segregated job situations in which females and males respectively predominate, men are paid significantly higher wages and salaries for the work that they do. Women's workforce statistics show that the majority of females, whether employed on a full-time or part-time basis, work in thirty or so job classifications. The limited number of job which employed females work are called "women's job." Their occupational clustering into these thirty or so job categories creates the female's sex segregation in paid jobs. As a result, employers pay women significantly lower median earnings than they do males who work in predominantly men's job classifications and who perform men's Employed women and those who advocate pay equality among and between working females and males contend that employers pay females lower wages since they are employed in women's jobs and hence perform women's work. The main point of contention levied by working women and pay equity supporters is that, through the use and application of traditional job evaluation techniques by employers, women's work and paid wages are both undervaluated and devalued. Relative to predominately male work categories, women employed also

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assert that in job situations in which female jobs have been shown to be of equal value to males, their work and wages are still undervaluated and undercompensated. In attempting to remedy the presumed inequality of the female-male pay disparity, working women asked to be paid comparable worth job wages for their equal work value output. The comparable worth pay idea is predicated upon three aims. First, it formally challenges public, private, and non-profit employers to come to grips with the social employment phenomena of female job sex segregation and wage discrimination. Second, it formally challenges these work entities to abandon the use of traditional job evaluation methods and replace them with bias-free assessment techniques that will objectively establish the relative equal work value of predominantly female and male work positions. In terms of its third challenge, the comparable worth pay idea formally brings before these work institutions the need to once and for all eliminate the negative attributes of their employment systems which have, heretofore, victimized the working female and caused her work and wages to be undervaluated and undercompensated. The time for comparable worth has come. So say working women and pay equity supporters. As a

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10 modern-day pay doctrine, comparable worth, or the equal pay for equal worth value principle, as it is sometimes called, seeks to upgrade the presumed wage and salary underpayment of working females employed in jobs heavily-occupied by women.7 As mentioned as comparable worth's first aim, the concept attempts to achieve male-female pay equity through the adoption and institution of nearly "bias-free" job evaluation criteria. This is perceived as serving to objectively determine the wage and salaries of predominantly female and male work without favoring the latter sex over the former. working women and comparable worth supporters say. that employers historically use male-oriented job content factors to evaluate and ascribe wage and salary payment to female dominated positions. In this regard, it is fuither believed that traditional job evaluation job content factors, and their applied aspects, discriminately favor the economic and occupational interests of working males, not those of working females. This study examines the present-day employment concern of comparable worth. It its history, its relation to job evaluation, its legality, its handling and treatment by non-federal, state and local public sector employment, and its controversial

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11 aspects. Historically, the working woman's demand to be paid equitable wages for the work she performs began with the call for equal pay for equal work in those job situations in which they found themselves working equally alongside Since the beginning of the Twentieth Century, numerous efforts have been attempted to obtain for employed women equal work wages for the jobs in which they perf9rmed work equal to that of men. The first and second trials of such endeavors within the United States occurred between the years of 1900 and 1915. It was during this time that two federally-appointed bodies officially examined the occupational problems and overall employment status of the female worker. Among other things, the two federally-initiated podies who delved into the working woman's employment status recommended that, given certain occupational situations, some working women were in fact underpaid and therefore should be paid wages equal to those paid to men. During the 1940s, the National War Labor Board was the next mechanism of the Federal Government that called for equitable wages for women, who then occupied the wartime jobs once worked by men.9 Men went off to fight the war. Women replaced them in droves and found themselves in employment situations traditionally set aside for males.

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Following II, substantive efforts to -. obtain equal pay for equal work for employed females continued. Politically, equal pay for work legislation was introduced in the u.s. Congress as early as' 1945.10 Further, between the years of 1945 and 1962, each equal pay measure introduced in and deliberated upon by Congress contained provisions that 12 female-male job equality be shown on' the basis of "work comparability." That is to say that equal female-male job situations did not have to be supported on the grounds that each sex was doing essentially the same work. However, the provision contained in the measure destined to become the Equal Pay Act of 1963 was void of the "work comparability", standard.11 The proposed law required that female-male job equality for equal work pay had to be substantially the same in relation to effort, responsibility, skill, and working conditions. The next effort in the litany to secure equitable employment treatment for working women and fair occupational opportunities began with the enactment of the Civil Rights Act of 1964. Among other things, the law's Title VII provisions proscribed sex-based pay discrimination for a variety of reasons. Similar to the Pay Act of 1963, in large part, Congress' enactment of the Civil Rights Act of 1964

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13 represented its intent to make unlawful a wide realm of discriminatory employment practices.12 Both the Equal Pay Act and the Civil Rights Act gained for employed women, blacks, and minorities literally millions of dollars in back pay, pay increases, and enhanced work opportunities in the workplace. The social and economic benefits to these individuals came as a result of the two laws' effective administration and enforcement. Despite the worth of both laws, it appears each has fallen substantially short of fulfilling its intended social aim of acting to 1 lId .. 13 e Imlnate ema e emp oyment Iscrlmlnatlon. Because female sex and pay discrimination still remain employment discriminatory factors in today's work environment, employed females have embarked upon the comparable worth pay idea as the social mechanism to help them overcome what is well-understood to be institutionalized sex and pay occupational discrimination. Chapter assesses the history of comparable worth. It postulates that the history of qomparable worth is rooted in marketplace female, occupational sex segregation and wage discrimination. In attempting to support the Chapter's theme, evidence is offered which purports to establish a causal nexus between the female

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14 sex's general social handling and treatment and how women became part of an occupationally segregated workforce in which they are paid lower wages. An examination is also endeavored into the nature and scope of the social problems women encountered, the evolutionary aspects of the female's sexist treatment, and how women persisted in her efforts to achieve, among other things, economic and social parity with men. Chapter III examines job evaluation and its role with respect to the comparable worth concern. The focal point centers upon the use of traditional job evaluation systems by employers, and how they have been applied to evaluate and assign wages and salaries to predominantly male and female work classifications. According to employed women and pay equity advocates, the ongoing use of historical job evaluation methods by public, private, and non-profit employers has been the source of the undervaluation and undercompensation of their work and wages. The call is made for the use of nearly bias-free job evaluation criteria. For this reason, the chapter's highlight presents what this writer refers to as the KSAR Comparable Worth Job Evaluation Method. The acronym "KSAR" stands for "knowledge," "skills," "ability," and

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15 the study provides a discussion about how to make operational the concept ability. Characteristics and observable behaviors will be listed in order to establish an objective format for a nontraditional view and the use of employees' abilities. The KSAR comparable worth jqb evaluation method is put forth as an alternative to the current use of historical job evaluation methods by employers. Chapter IV addresses comparable worth's legal meri ts. It assesses the legal i ty of comparoable worth within the framework of the Equal Pay Act of 1963 and the Civil Rights Act of 1964. Relative to the two laws, the assumption is made that each has failed to fulfill its respective congressional mandate oto eliminate female occupational and pay discrimination. A "model" comparable worth law is presented as the main feature of the chapter. The model law is adapted and derived from research and analysis of models and concepts put forth by many other experts and personnel specialists. Chapter V reviews the pay equity initiatives state and local governments have undertaken to come to grips with sex-based pay discrimination in their employment systems. In this respect, though the Federal Government under the present Administration

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16 vehemently opposes the comparable worth pay idea, the concept continues to find wide support from an ever-increasing number of state and local jurisdictions. The efforts undertaken by these governmental entities are truly making comparable worth an ever-emerging reality. Chapter VI summarizes the study and point to its conclusions. On a note, the goal of total comparable worth implementation by u.s. employers appears to be aistant and difficult to achieve. Despite this, however, employed women and pay equity supporters will one day look back and reflect on the accomplishment of having overcome occupational social inequities born of man and woman.

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17 NOTES -CHAPTER I 1For a general discussion on occupational sex segregation and how it affects the female sex see, Martha Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976). For a general discussion on female wage discrimination as it relates to the comparable worth problem see, Joy A. Grune, ed., Manual on Pay Equity (Washington, D.C.: 1980). 2 Ann Seidman, ed., 'working. Women: A Study of Women. in Paid Jobs (Boulder, Colorado: Westview Press, Inc., 1978), p. 53. 3Ibid, p. 54. 4Fbr a historical-legal analyses on judicial branches of national, state, and local governments and how these bodies with the women's labor legislation issue see, Judith A. Baer, The Chains of Protection: The Judicial Response to Women's Labor Legislation (Westport, Cdnn.: Press, 1978). See also, Jean Lipman-Blumen; "Toward a Homosocial Theory of Sex Roles: An Explanation of the Sex Segregati6n of Social Institutions," in M. and B. B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976), p. 23. SMartha W. Griffiths, "Can We Still Afford Occupational Segregation? Some Remarks, in M. Blaxall and B. B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976),p. 9. 6Frances Hunter, "The Male-Female Earnings Gap," in Joy Ann Grune, ed.,' Manual on Pay. Equi ty (Washington, D.C.: Conference Publications, 1980), p. 21.

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7Lois Friss; "Equal Pay for Comparable Work: Stimulus for Civil Service Reform," Review. of Public Personnel Administration, vol. 2, no. 3, Summer 1982, p. 42. The "equal pay for equal work" concept was formally incepted and recognized in the u.s. society during .the first part of the Century. Its merits and treatment resulting therefrom are discussed in the following chapters. 18 9For an exhaustive of the Federal Government's efforts during this time National War Labor Board, "The Termination Report ofthe National War Labor Board" (Washington, D.C.: Government Printing Office, 1946). 10For a listing of the proposed legislation see, Laura N. Gassaway, "Comparable Worth: A Post-Gunther Overview," The George Washington Law Journal, vol. 69, June 1981, at p. 1132, footnote number 84. IlThehistotical and legal aspects of the Equal Pay Act of 1963 are fully in Chapter IV. legal aspects of, mainly, Ti tIe VII of the Civil Rights Act of 1964 are extensively examined in Chapter IV. 13 .. 1 1 1 d Respectlve y, or ega Vlews opposlng an supporting the statement R. E. Williams and D. S. McDowell, liThe. Legal Framework," in E.R. Livernash, ed., Comparable.Worth: Issues and Alternatives (Washington, D. C. : Equal Employment Advisory Council, 19), pp. 199-249, and Melinda P. Chandler, Comments, Equal Pay for Comparable Work Value: The Fai lure of Title VII and the Equal Pay Act," Northwestern University Law vol. 1, 75, 1980, pp. 914-943.

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CHAPTER II THE HISTORY OF COMPARABLE WORTH The history of comparable worth is firmly rooted in the 'sex segregation and wage discrimination practices of the marketplace. women view these factors, social maladies, as the primary causes for the undervalued, undercompensated nature of their work and wages. Occupational pay differences between employed males and females appear to have far-reaching historical origins. These historical differences in the social treatment of the sexes still impact how each is handled, regarded and, hence, compensated for paid work today.l Consequently, it is the past and present social and occupational treatment of men and women that has prompted women to explore the comparable worth pay issue. In this sense, employed women's grievances are straightforward. It is their contention that public, private, and non-profit employers undervalue their work and undercompensate them for it. Further, they claim that these employers pay them significantly lower relative earnings as a result of their employment in

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20 sex segregated female job classifications than they pay working men employed in sex segregated male job 1 2 c aSSl lcatlons. As a direct consequence of this male-female workforce sex segregation and the lower relative wage payment to females, these perceived disparities have fueled the comparable worth controversy.3 In large part, the pay controversy's historical aspectsof the employed woman's work and wages being undervalued and undercompensated are further in cultural, economic, legal, political, and social influences.4 In this context, the employed female argues that these institutional influences have almost always affected the woman's general and occupational status. Moreover, they say that, based on these notions, the worth of a labbr has almost always been more highly regarded by employers than a woman's. The comparable worth concept has been fostered by myriad historical notions and institutionalized, socialized influences that have established male superiority over females. As a concept, comparable worth is aimed at correcting the alleged sex-based pay disparities that, presumably, uridervalue and undercompensate the employed woman's work and wages. The working goal is the achievement of pay

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21 equal to that of the working-man. Hence, the comparable worth pay doctrine is viewed by the employed woman as a contemporary wage and, salary mechanism for systematically overhauling the historical job evaluation methods used by employers to value male job classifications over those worked by females. This chapter examines the historical aspects of comparable worth and assesses the marketplace elements of job sex segregation and wage discrimination. The two are viewed by employed women as the causes for their lower relative wage payments. The underlying premise of the chapter is that a direct nexus exists between the undervaluation and undercompensation of the employed woman's work and wages and the sex segregation experienced by working males and females. Further, the chapter also offers proof that past society's differentiation with respect to its handling of the sexes did, in fact, place the male sex in higher regard than the female sex. As a result, men's contributions came to be valued more than women's. At this point, the chapter's emphases shifts to discuss the general thrust of the comparable worth concern, the pro and con views of comparable worth supporters and detractors, the origins of comparable worth, the socialization of the sexes roles, and how occupational sex segregation merged from a historical perspective. Then, an

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examination is delved into of the Twentieth Century workplace. and comparable worth. 22 As a salary administration concern, comparable worth is an issue which affects public, private, and non-profit employers. In effect, the compensation idea challenges these entities' past and present wage and salary administration practices. It does this by seeking to upset employers' uses of historical job evaluation practices, compensation methodologies, and determinations of how male and female jobs are assessed for pay. Comparable worth also attempts to overturn the known earnings disparities that result from men's and women's employment in, respectively, male and female job classifications. As articulated by working women,. worth, the pay equity theory, or the equal pay for equal work value compensation idea, is also seen as the cure-all for overcoming the social employment problems of female job undervaluation and undercompensation. By and large, undercompensated, working females assert that women employed in jobs historically worked by females are paid significantly lower wage and salary rates than men employed in historically male occupations. Simply stated, working women claim that their jobs are undervalued and underpaid.

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23 If implemented as a modern-day salary administration practice, comparable worth would establish the relative, equal value of predominantly male and female job classifications on the basis of the positions' contribution to the work establishment. The relative, comparable worth value of the work positions are determined by making comparisons. In this respect, the pr.dominantly male and female job classifications are evaluated in terms of their identifiable, comparable degree of effort, responsibility, and skill. When applicable, the work positions' working conditions may also be compared. In many other respects, implementing the comparable worth idea as a salary administration practice also means that, on a broader scale, the pay philosophy would afford to an individual or groups of individuals, regardless of sex, equitable compensation for performing work of comparable or equal value to the employer.5 Comparable Worth: Supporters and Detractors Employed women and those who support comparable worth's implementation in employment advocate it because they expect the concept's objectivity to remedy the employment disparities of sex segregation and wage discrimination. They cite two reasons as support for their position. First, they believe that comparable

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worth job evaluation plans would revamp the historical assessment procedures and practices employers have relied upon to justify paying proportionately higher wages to in predominantly male work classifications than to those in predominantly female work classifications. In this sense, employed women and pay equity supporters call for the institution of objective, unbiased job evaluation criteria upon which the comparable worth assessment plans would be structured. Their techniques would incorporate methodological features that would evaluate male and female jobs on the basis of their equal work value content rather than on male-oriented job content factor that favor the male worker. Second, employed women and supporters insist that public, private, and non-profit employers implement comparable worth evaluation plans on a voluntary basis, because" it appears that federal, state, and local antidiscrimination laws lack the needed substance, both in their applications and effects, to embrace the horrendous employment considerations enmeshed in comparable worth. In this respect, also, employed women and pay equity advocates say that the laws at the three government levels are virtually useless in addressing and, thus, remedying job sex segregation and the resultant female pay discrimination.

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25 Pay equity' opponents, on the other hand, disagree with the two reasons working women and comparable worth .supporters offer in favor of implementing the equal work value concept in employment. First, comparable worth opponents attack the term's definitional character. They say that, as a term, comparable worth is vague and cannot be operationalized or put into a practical job evaluation methodological framework. Moreover, it is also claimed by pay equity foes that, since the term cannot be operationalized, it seems virtually impossible to determine concretely the value .of. predominantly male and job classifications.6 Foes of the pay idea further state that there is a of consensus about what the term really connotes; these nebulous attributes, they say, fail to provide employers with structured methods for evaluating and arriving at the equal work value of positions. Pay equity opponents additionally believe that the aim of the equal work value doctrine--to achieve male-female wage parity--is remote, at best, because no known job evaluation methodology exists by which the absolute equal worth value of male and female jobs can be determined. Comparable worth foes look to the tried and longstanding methods derived from the use of traditional job evaluation procedures in assessing the

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relative worth of work positions. In this they further take the position that the applications and pay determinations of these historical evaluation plans are practical and fair. Relative to current antidiscrimination laws, pay equity foes say that existing federal, state and local statutes are sufficient in addressing the occupational problems of female, sex and pay discrimination. Since cqmparable worth opponents adhere to this belief, they vehemently oppose the enactment of any form of national comparable worth law which would, in effect, compel employers to evaluate jobs and, hence, compensate their workers on the basis of their equal, relative value. And, those who oppose the comparable worth pay idea also vigorously work to discourage public, private, and non-profit employers from adopting any voluntary means of evaluating and compensating the work establishment's job positions on the pretense of comparable value determinations. In summary, comparable worth proponents and opponents hold diversified views on the pay issue's aim, its utility, and its worth. Differences also exist about whether the comparable worth wage determination doctrine is even a practical and viable compensation administration mechanism. Each faction also opposes the definable aspects and operational,

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27 practical features of the term "comparable worth." The major dispute in this respect centers on whether dissimilar male and female jobs in fact, be evaluated, compared, and assigned comparable worth wage and salary rates' on the basis of their relative, equal values to employers. Equitable pay supporters take an affirmative position on the issue. Equitable pay opponents take a negative position on the issue. Pay equity proponents say that comparable worth job evaluation methodologies can be used both practically and successfully to fairly and systematically evaluate and, consequently, compensate predominantly male and female work classifications on the basis of equal job value. Pay equity opponents disagree. To a large exterit, the arguments buttressed by pay equity foes and supporters set the stage for the comparable worth controversy. It is a heated compensation issue and one which is not likely to fade into oblivion. Much like the polarity of views about the equal work value pay concern, its controversial aspects exemplify both complexity and diversity and, for these reasons, merit a more detailed examination. Though comparable worth proponents acknowledge that present national, state, and local laws prohibiting employment discrimination are, for the most part, effective, they do, however, take issue with pay

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28 equity opponents that these laws have been overwhelmingly helpful in correcting occupational discrimination of all forms. In this regard, supporters of the pay question cite the continuing disparities that employers force upon the employed female. Among other things, these include discriminating against her on the basis of her sex and in her paid wages, limiting her equal job opportunities and perpetuating the disparity that exists in the sexes' relative earnings. The last concern, in and of itself, injects another aspect of the comparable worth dispute. It ties together the issues of job evaluation and the employers' wage payments to their male and female employees. The consideration in this regard asks whether the pay of the sexes who work in predominantly male or female job classifications is reflective of prevailing equitable market rates or whether said pay ihcorporates other suspect factors such as labor market sex segregation and wage discrimination. Irrespective of the job worked by men and women, comparable worth opponents maintain that the sexes' paid wages are determined by the free market forces of labor demand and supply. Foes of the issue further contend that the interplay of these dynamics sets the market wage price of almost all jobs in the marketplace. Pay equity proponents refute their

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opponents' contentions. They argue that prevailing wage and salary rates established through the presumably free market forces of 'labor demand and supply are not the result of the interaction of those two elements, alone. Aside from this ideally determined market situation, proponents further say that the earnings employers pay to their male and female employees who work in predominantly male and female jobs are indicative of historical sex-based compensation biases that favor the male. As an illustration of the point, comparable worth stipporters 29 claim that, even when pay equity job evaluation studies have demonstra.ted the comparable worth of selected, predominantly male and female jobs, females are still compensated by employers at a significantly lower wage than males. This, they further say, is a reflection of both systemic female job biases and of the depressed wage rates assigned to job classifications primarily occupied by females. These rates are derived through job evaluation and marketplace wage setting processes. Another disputed. aspect of the comparable worth controversy relates to the nature of the male and female work in question. In part, the consideration here relates to the pro and con of the term's meaning. The opposing faction has it that the compar'able worth characterization is definitional and its concept lacks

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both descriptive features and substance. In this respect, foes say that the concept is lacking in description because it is hard to ascertain whether the nature and chacterization of the male and female work at issue is "equal" or "comparable." Proponents say it is neither. The genus of the term comparable means "equal." Applicable to the pay equity concern, comparable worth relates to the relative comparable, or equal, value of dissimilar jobs. In this respect, the comparable worth concept is much broader than the concepts of equal work and comparable work. The equal pay for equal work concept applies to male and female work situations in which the jobs require effort, responsibility, and skill, and are performed under equal working conditions. The comparable work phrase a work situation in which male and female jobs may be comprised of varying degrees of effort, responsibility, skill, and may be performed under comparable working conditions. Despite those few dissimilar job content characteristics which may exist in "comparable" male and female work situations, for all intents and purposes, the job involves similarities which require comparable effort, responsibility, and skill. Examples of comparable male and female work situations. include the jobs of male and female prison

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31 guards and those of male and female hair stylists. "Comparable worth" job situations, on the other hand, encompass "equal" and "comparable" work situations. And, further, it goes beyond each in that, though the male and female jobs in question are totally dissimilar in effort, responsibility, skill, and working conditions, an evaluation arrives at their equal, comparable worth job values on the bases of their identifiable job content characteristics. Conversely, "equal" and "comparable work" situations fall short of making same dissimilar job comparisons. The Origins of Comparable Worth Comparable worth is a relatively new term to employment nomenclature. It emanated during the early 1970s and represents. the employed woman's discontent with and protest of employment, sex and pay discrimination. In many respects, the comparable worth job term replaced the working woman's demands to be paid wages during the 1960s. Her call to be paid equal pay 'for equal work relative to working was exhausted by the close of the 1960s. The 1970s conceived her call for equal on the basis of her equal to work organizations. To the employed female, the demands for comparable worth

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job wages became another trial in the litany of her ongoing efforts to achieve pay equality. The main emphases of women's comparable worth concerns focused on the disparity that existed in the relative earnings of male and females and on the correction of female, sex-based pay discrimination in employment. In this regard, it was during the early 1970s that working women started to recognize the comparable worth pay idea as the device that could effectively address and, perhaps, remedy altogether the workforce problems of occupational sexism and pay discrimination. Being a new employment concept, the comparable worth idea was indeed a novelty. It was for the most part unknown, untested, and untried. The newness of the .. pay idea also caused employers grave consternation since they, too, knew little or nothing about it. In summary, comparable worth came about during. the mid-1970s and, by and large, it replaced the working woman's demand for equal pay for equal wages. Its scope .takes into consideration job comparisons of dissimilar male and female work positions on the basis of their equal worth, or comparable value. The views and controversial aspects of the comparable worth pay concept as a viable wage determination doctrine have both their and foes. For the most part, 32

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33 employed women, women's groups, civil rights organizations and labor unions suppqrt the pay idea as an additional remedial measure in further eliminating employment sex-based wage discrimination. Although working women made significant economic progress in the 1960s in their aims to procure better jobs and higher wages, employment, sex and pay discrimination continued to affect their economic and occupational status. For slightly more than a decade, employed women have been at tne national forefront in championing their demands for equal work value wages. Their efforts in this regard have been both rewarding on 'one hand and frustrating on the other. Nevertheless, the employed female pushes forward in continuing to air her grievances about the occupational maladies of job sex segregation and wage discrimination, which result from the undervalued and undercompensated nature of her work and wages. Socialization and Sex Roles From a historical viewpoint, research suggests that strong correlation exists between occupational segregation and wage discrimination and the socialization and sex roles of men and women. Throughout the ages, society fostered the sex role

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division between its male and female members. Because of their sex role differences and males and females were handled distinctly. Their handling was so different that the legitimacy society afforded to these recognized male and female sex differences became deeply ingrained in the institutions of the time. Today, most, if not all, of the past socialized influences which acted upon men and women are still prevalent in society. Though some may have been refined, many of them persist. They have been carried over from generation to generation. Moreover, many of these gender-based influences and notions are, today, integral parts of our cultural, economic, legal, political, and social institutions. Joy Ann Grune observes that the institution of psychology has also contributed to the sex role distinctions and divisions between males and females. She further points out that psychology became a base that also propagated gender-oriented discrimination.7 The linkage of the cultural, economic, legal, political, psychological, and social institutional networks profoundly impacted the woman's general societal status and, especially, the one related to her occupational role. In this regard, it is recognized that the pervasiveness of accepted male-female sex

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roles is, in large part, responsible for the job sex segregation and wage discrimination differential which evolved between the employed male and female. 35 The historical, institutionalized influences which governed the sex role separation of the man and the woman made for the former's dominance over the latter. The sanctity of the cultural aspect of the sexes' social relationships was understood and accepted by males and females and dictated the social order of the day. In the past, men were so domineering that they controlled virtually every aspect of social life. The men's socialized role impersonations came to imbue the male sex with the endowed qualities of power and strength. These impersonations and the images that stemmed from them further promoted the man's physical mastery. This, in turn, helped to make for the male sex's enhanced,control over social roles and gender-oriented differentiations among and between men and women. Masculinity, power, and strength accompanied the man's social rank. As a result, men acquired control and dominance over society's vast wealth and resources. They controlled and manipulated the powerful economic, financial, and social institutions. Moreover, their dominance in this manner was used to exert control over the aforementioned

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institutions and others,. as bases for wedging a clear line of demarcation between them and the female sex. In this respect, men's and women's sex roles were unequivocally divided and stratified. Each had distinct, yet identifiable, role characterizations in and outside the home. Other than men's familial roles as fathers, theirs were ones that almost always demonstrated masculine superiority. The woman's role primarily confined-females to the limited aspects of domestic life. Mainly, they were family their roles confined them to the care of home, their children, and husbands. Based on men's and women's varying social roles, the former took on rough, tough tasks because of their superior human physical qualities, to masculinity and strength. As a general rule, either in or outside the home, it was socially unacceptable for women to perform work that required excessive lifting or to work in environments that men dominated. Because perceptions regarded women as the weaker of the two sexes, more often than not, females were forced to do light duty work or work that men did not find desirable. Males were employed in the lucrative, higher-paying jobs because they were also regarded as the major means of family support. This notion alone further strengthened the man's social 36

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37 role. Men, moreover, capitalized on these enhanced characterizations through their responsibilities of providing for the family's comfort, protection and, in general, its basic livelihood. Contrasted to the man's generalized social roles, those affiliated with the woman's were matrimony, motherhood, and domesticity. .From their formative childhood years, young females were socially conditioned to assume social roles that tied their very existence to marriage, having children, raising a family, and caring for both their husbands and offspring. To a large extent, females were socialized to accept that they were subservient to males. Socialization impressed upon young females the need to prepare themselves for marriage. Females were groomed for that great day when their hand would be given to a man's in matrimony. In exchange, the socially conditioned processes also served to influence the female's beliefs that the man they would marry would provide for life's essentials and, above all, her happiness. Once married, the woman's home became her fixed domain, for the most part. She was expected to fulfill her roles of motherhood by having children and providing her offspring with the riches of her matriarchal capabilities. The woman's domestic role

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was intricately tied to those of matrimony and motherhood. Society's expectations and the tasks tied to the female role rendered paid work virtually unthinkable. 38 Still, when the notion of working outside the home for paid wages arose, many of the socialized processes, as well as their associated stigmas, operated to discourage women from engaging in this activity. This was particularly applicable to married women who had families and wanted to work outside their homes. The social stigma that confined women to domestic roles also worked to dissuade even single females from becoming employed. The thinking was that the time the single women consumed looking for employment could best be spent preparing themselves for matrimony and motherhood. Hence, whether single or married, female sex roles were controlled and dictated by the male sex. since men controlled women and exercised their dominance over them. In summary, the generalized ideas, beliefs, and values that came to be associated with"the sexes' roles became intricately interwoven with all social systems that profoundly influenced the actions and behavior of females and males. By and large, sex role stratifications became maintained, reinforced, and perpetuated through these

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39 socialized processes and notions. The same can also be said about their effects. Social institutions became the mediums by which these unrestrained social role processes and practices lingered and, further, trickled down throughout the era to the present time. The unrestrained role processes and practices as related to the gender-oriented status and treatment of the sexes were, indisputably, enmeshed in cultural, economic, legal, political, and social institutions. Culturally, the fact that men controlled most of society's wealth and resources worked to their advantage in further maintaining and promoting social discrimination against females. This created an even greater sex role division between males and females. with their control, men exerted power over and made decisions about resources preservation and resource distribution. They controlled almost all aspect of community life. Their power and control over" social institutions were used to protect and preserve the man's patriarchal empires from the competitive threat of matriarchal intrusion. From men's protective preservation of their vast empires, social institutions were manipulated. Males controlled institutional thinking and behavior of the awesome social structures that served as both the bases and vehicles for

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establishing and determiriing social outcomes. The social determinations and outcomes generally reflected male dominance and female dependency. Through these powerful social establishments, men acquired great influence over societal conduct and, typically, benefited from these actions7 females did not. This was understandable since society's rules favored men over women, and served to further strengthen men's authoritative grips over a patriarchal social system that, it seems apparent, readily discriminated against females. The social system promoted male superiority. 40 At the same time, it relegated the female to an inferior position. For example, since men had the P9wer and control over social establishments and work institutions, they used their influences to determine what jobs would be available, who would get them, and what wages would be paid to the laborer for the rendered services. Because of sex role distinctions and male dominance, men usually got the best jobs and those that paid the best wages. Women got the jobs that men found unattractive or simply did not want because the pay was low. Females worked the jobs simply because they had to take on employment to support themselves or their families. They were denied

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41 men's jobs and the equal employment opportunity to procure them because women had a social role inferior to that of men. The social edict of the times made clear that females were not permitted to become employed in occupations reserved for males and, knowing this, women who sought employment did not attempt to gain entry into these predominantly male jobs. As a result, the employed woman had to work in the worst jobs, under the worst condition,. for generally depressed wages significantly lower than those employers would have paid men for the same work. In conclusion, in past times, females had little or no social power and control over society's wealth and resources. Their employment was confined to the jobs men either refuseq to work or which they adjudged undesirable because the pay was low. The sexes' stratified social role distinctions were so profoundly formal and different that, when it came to paid work, women dared not invade the employment world of "men only" jobs. Consequently, this brought about an occupational situation in which women were compelled to work the jobs men did not want. The female sex's continued entry into a limited job market resulted in job overcrowding and, thus, promoted job, gender-based segregation. Women lacked the power .over social

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42 institutions to change their plight. To a large extent, neither could women change their social handling and treatment nor their occupational situation because they lacked the economic, legal, and political power to effect the needed changes. Peter Blau gives an explanation of the social and occupational dilemma which confronted the female sex: In relationships between the sexes, males have had a disproportionate amount of resources under, their They could their power, status, money, land, political influence, legal power, and educational and occupational resources [all usually greater than women's] against women's more limited range of resources, consisting of youth, beauty, and the promise of paternity. Men could also bargain their aggression, strength, competitiveness, and leadership capabilities against women's domgstic abilities and clerical services. As Blau points out, females were faced with narrow social and occupational choices. Their range of reform alternatives was limited. Men's dominance and control over society's wealth and resources were not only mobilized to govern the socialized processes, but they were also used as devices to devalue the woman's societal worth. In offering both a retrospective and a speculative' view as to how the early origins of this came about, Lipman-Blumen explains: [The] [emphasis added] explanation lies in the well-recognized, and universally accepted idea that men acquired this vast reservoir and power and control over society's resources as

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a if their roles as hunters and warrlors. From their macho social roles of hunters and warriors, men also derive social rank. Women did not acquire the social rank affiliated with the male-dominated activities of hunt'ing and warring. One can safely speculate, however, that the woman's social prestige and rank came from that of her husband's, or any other man with whom she was associated. From the man's images of power and dominance, the woman's social linkage was tied to these qualities. But, in spite of this, the man's and the woman's sex role distinctions prohibited the latter from assuming the stature of men and,above all, their social dominance and control. Women were socially outlawed from.becoming in men's occupations. Lipman-Blumen further points out that "these roles were understood to be inaccessible to females because of their child-bearing and child-. ft' 10 rearlng unc lons. Elsie Boulding offers a statement about the essence of the woman's characterization in that her role was best captivated by the female sex's triple duties of "breeder-feeder-producer."11 And, lastly, in attempting to establish a casual nexus between social systems of yesterday and today as they relate to the woman's societal handling and treatment,

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44 Lipman-Blumen enters the speculative realm and tries to explain why men's dominance persisted down through the ages. He states: Men's positions in these resource-acquiring and resource-protecting roles also led to certain dominance [sic] hierachies that persisted long after technology had obviated the need for such and stratification of roles. In this regard, it appears that the assumption is made that technology, with its accompanying advances and changes, should have eradicated the sexes' role and stratification differences. Moreover, it seems that the underlying presumption in this respect holds that there is a relationship between social values and technology, and that the latter should transcend the former in obviating antiquated social values that discriminate against a particular member of society. The thrust of the inquiry, here, is not meant to be construed as an attack on Lipman-Blumen's observation, but, rather, it is meant to suggest that human societies may very well regard social values as outweighing technological considerations in importance. This position is confirmed by the realization that, long after past societal values have come and gone, today's society still fosters and promotes sex distinctions and between men and women. The

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45 preservation of these longstanding" social values and cultural biases has prevailed despite the technological advances and changes that have rocketed present society into the Space Age. Today, the notion that the worth of a man's labor is more valuable than that ofa woman appears to be an ingrained, universally accepted," socialized idea. Commensurate with this thought is the belief that men's abilities are, by far, more highly regarded by society than those women possess. Therefore, men have comparatively better jobs than women, and they receive significantly higher remuneration for their knowledge, abilities, skills, efforts, and responsibilities. As was pointed out,. men's dominance and control over social situations and social outcomes created the modern-day phenomenon in which the female finds herself. The male and female sexes are segregated into distinct occupational classifications that they dominate. The employer's wage payment to the employed woman appear to further reflect the continuing disparities associated with the societal treatment of females. In this regard, the authoritative weight strongly suggests that women's unequal social treatment results both from their past, inferior societal role and from sex discrimination. Such factors and

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perceived notions about the woman and her value to society dtrectly impact the wages she receives in paid employment. .Margaret Mead sums up how society values the abilities .of.men and women: The problem is that our society, like most societies, has always valued more highly the abilities which men are more likely to possess and the work do and has rewarded men accordingly. Such social and employment-related distinctions and practices appear to have perpetuated women's occupational sex segregation in paid jobs, their inequitable wage payments, and the ongoing aspect of their undervalued, undercompensated work. Emerging Occupational Sex Segregation Occupational sex segregation is the 46 division of male and females that tends to cluster them in certain job classifications. What creates this occupational phenomenon is the distribution of sexes into certain fields. Males are employed in "men's work," and females are employed in "women's work." The numerical breakdown of men and women in their respec-tive job classes is such that a skewed distribution of one sex's presences is significantly disproportionate to the other's.

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The history of the sexes' occupational segregation in employment can be presumed to have ensued from the male-female stratified role differentiations that past societies placed on the genders. The distinctions in this regard are as old as the universality of the concept of sex itself. The idea reaches back to ancient beginnings. with it came not only.the recognized biological,physiological, and social differences between males and females;-but also ones which affected them occupationally. Jessie Bernard elaborates on the beginnings of the male's and female's occupational segregation. His discussion points to the observation that the workforce division between males and females resulted from dysfunctional consequences. Bernard states: occupational segregation has an ancient, if not necessarily always a honorable, history both predating and postdating traditional capitalism. A thread running through them is emphasis on the dysfunctional consequences for women of such occupational segregation, as evidenced by the disproportionate amount of the work load they carry in societies and by the relativI4y low rewards they receive for their work. According to Judith Baer, the true essence of employment sex segregation finds its early roots during the initial stages of America's transition from an agricultural to an industrial society. Says Baer:

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The first important fact that we need to know about American industry. is that a division of labor on the basis of sex has persisted throughout our history, surviving the change from agricultural to industrial society [T]here has always been a fairly sharp division between men's and women's work. Even when men and women have worked in the same they nearly always work in different jobs. From a contemporary viewpoint, it was at the point of America's transformation from an agricultural to an industrial society that men and women abandoned-farm life and pursued livelihoods in sprawling urban areas. The new or prospective labor force participants sought employment in occupational fields that further reflected the socialized upbringing and training acquired from their agrarian backgrounds. In this regard, Baer notes: the sexual division of labor which had prevailed on family farms was maintained. Men became carpenters, or shoemakers [or, if they felt unsuited for urban life, moved westward] women became weavers and spinners 'in textile mills, and later 16 seamstresses, laundresses, and waitresses. As times changed and increased technological advances were realized, the structure and character of jobs were also altered. In the midst of these far-reaching social changes, human values remained relatively stable. For example, recognized societal differences between men and women persisted. And,

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49 these still operated to affect women's status, even though the sex differentiations may have been of little' or no consequence. in some circumstances. A vivid example of this is when a job incumbent's sex had little or no bearing on work that required the equal job performance of both sexes. Nevertheless, the gender-based differentiations between men and women prevailed and, consequently, did have an impact on the jobs worked by employed females and males. Men worked in occupations that required ability and strength. Women became employed mainly in jobs that required manual or digital It has already been mentioned that females also worked the jobs men did not want to work. In relation to men working in jobs regarded as requiring more ability and strength than women were thought to possess, it was not that men were superior to women in these the situation merely afforded social and occupational preference to males. The Twentieth-Century Workplace and Comparable Worth America's step into the Twentieth Century brought yet more social .changes. with the changes came different values and different philosophies. The

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different philosophies and values further different aspirations, especially as they related to the employed woman. The era characterized the beginning of the period when workers in general and working women in particular became concerned about their occupational careers and their devoted loyalty to the work establishment. This new wave of thinking brought more revolutionary social changes in the work environment. Personnel Management began to emerge both as a field and a disciplined science. It was responsible for the inception of personnel screening, employee testing, employee training, and employee career development, among other things. The period was characterized by trials in the methods, processes, and techniques employers resorted to in procuring the personnel they needed to do the jobs. These endeavors were aimed at candidate selection and. candidate It was all about procuring the right person for the right work position. The idea behind this, further, was to promote the interests of the organization by acquiring employees who could help perpetuate its longevity. The work establishment's aim in this regard centered on increased work economies and efficiency. Based on these emphases, employee

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productivity output and productivity improvement also became the means by which the organizational ends were to be achieved. 51 During the period in which organizational changes within the work establishment were initiated, individual employees who worked for the institutions also began to assess both their purposes and roles in the realm of paid work. Males and females alike focused on the improvement of their job statuses and careers. Workforce members became more educated. As a result, men and women became more sophisticated. With the sophistication came higher aspirations. Self-improvement became a major objective of both men and women. The sexes had endeavored to train and retrain themselves in an effort to expand their vocational careers or enter into employment fields. The norm of just being employed and having a job was no longer the standard: this had begun to dissipate into a bygone ethic. aspirations became the driving forces behind their efforts to make for better lives and to place themselves in social or occupational situations that would provide them with life's essentials and more. Employed women wanted better jobs, better job opportunities and, most important of all, higher wages. In large part, the Second World

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52 War is responsible for the influx of a significant number of women entering into the paid workforce in unprecedented numbers. As men went off to fight in the war, expanded employment opportunities for the woman worker were created. Women employed in predominantly female job classes abandoned them to work in those formerly dominated by men. Their exodus from the jobs they once dominated saw the vacated positions filled by more women. The effect of this made room for the entry of yet morewomen entering the workforce for the first time in their lives. Women's entry into jobs that traditionally had been set aside for men, combined with their first-time entry into employment during World War II, constituted two of the most substantive events that significantly changed their numbers in paid occupations. For the first time in America's history, the number of women in employment exceeded that of employed men. Even beyond this point, women's increasing numbers in paid employment kept:soaring. That factor alone increased their demands for, among other things, better job opportunities and higher wages. In many respects, also, changing times brought about the employed woman's changing workforce aspirations.

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53 The post-war period witnessed the introduction of the new woman, both socially and occupationally. Women began to challenge their own social values and those that had been imposed upon them by a male-dominated society. Occupationally, women began to attack the longstanding, historic, and discriminatory structural barriers that had heretofore barred them from securing work in "men only" jobs. Their aim was to improve their quality of life by working at better jobs and being paid better wages. In this sense, their dissatisfaction, it seems, did not stem so much from the fact that they worked in predominantly female jobs as much as it did from the fact that employers paid them low, depressed wages. They perceived that their low wage payments were the direct result of female sex discrimination and the causative agent that denied employed women equal job opportunities in the work place relative to men. Like the concerns expressed by minorities about social race discrimination, the ones held by women in relation to employment sex discrimination did not get addressed in a meaningful manner until the late 1950s -and the early 1960s. It was during these years that the unilateral exclusion of minorities and women from certain job opportunities, and each one's entry into

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the all-white and all-male job fields became the contested moral, legal, political, and social issues of the times. Inequities in employment opportunities was but one facet of the social discrimination that the civil rights movement sought to overturn. The impetus that carried over from the civil rights movement brought about vast societal changes. As a of people becoming more educated, sophisticated, and learned, they changed. The employed woman actively began to challenge what she characterized as overt sex and pay employment disparities. The essence of her challenge in this respect represented the woman's desire to eradicate these discriminatory maladies. It is now through comparable worth that the employed woman intends to correct the systemic employment biases of sex and pay discrimination, biases they regard as having historically operated in undervaluing and undercompensating their work and wages. The foundation for understanding the comparable worth problem begins with an examination of the causes of occupational segregation and their relationships and effects on the problem of undervaluing and undercompensating the employed woman's work and wages. The sexes' socialized roles have already been

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identified as being the major factor that produced male-female social segregation. Social institutions can also be identified as elements that not only promoted men's and women's societal separation, but" shaped their occupational separation as well. Karen Oppenheim Mason states: occupational segregation appears to be caused by the operation of most social institutions, not just the labor market itself. Such segregation is just one reflection of a society-wide system of sex differentiation which promotes different roles, temperaments, oppo17unities, and rewards for women and men. Mason's statement appears to support the one cited earlier by Margaret Mead; society tends to place a 55 higher value on men's abilities than women's. And, as a "result, "the former are paid Winn Newman offers another statement with regard to how occupa-tional segregation operates in affecting the employed women's wage's. Recognizing that male and female jobs are no longer formally segregated, Newman observes that men fill limen's jobs" and women fill "women's jobs," both because of traditional and historical socialized influences. Says Newman: Although jobs are no longer formally segregated by sex, the unfortunate fact is that traditionally women's jobs are still mostly filled by women, and traditionally male jobs are still mostly filled by males. And probably because of this pattern, the traditional undervaluation of women's jobs are

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still undervalued, as compared to jobs, and the rate can be justified only because women are still tHailable to perform jobs at those low rates. Women's occupational sex segregation, or their job clustering into distinct classes in which they receive significantly lower wages than men, has been characterized as a "classic female job ghetto."19 Former Congresswoman Martha Griffiths of Michigan elaborates on exactly what is meant by the female job ghetto depiction: [I]t is true that the vast majority of the female labor force is in teaching, health, and service organizations. [B]reak[ing] those categories down further the female labor force is further segregated by race (blacks and other minority, women are highly over-represented among private household worke2 0 and seasonal farm workers) and .. by age Nancy Rytina provides an explanation that more precisely contours the problems resulting from female job segregation. She states: The majority of working women are employed in a small number of occupations which are predominantly females; in both 1969 and 1979, about one-half of all working women were employed in fewer than thirty of the detailed Census Occupations in which eightlpercent or more of the employees were women. Authorities generally concur that, within the United States workforce population, eighty-percent of the total number of full and part-time working women 56

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57 are employed in approximately thirty major job classifications. Women's relative distributive concen-trations in these thirty or so job classes create an occupational sex segregated situation. Their large numbers in the "female" job categories bring this circumstance about. Ellen Cassedy explains how the perpetual effects of women's occupational sex segrega-tion impact the female wage earner's paid compensation as a result of the endless, circular job ghetto in which find themselves employed. According to Cassedy: When women can find a job only in a small number of job categories, then the supply of women for those jobs is so high that women are competing for a relatively low number of jobs. Stereotypes of 'women's work' mean that wages can be set low because women are thought to be 'less valuable' than men. The stage is set for most women to occupy a severely underpaid and sector of the workplace, a job ghetto. For the most part, employed women work in service-producing or service-related industries. According to a report published by u.S. Department of Labor in 1982, service industry jobs accounted for seven out of every ten work positions in the American economy. 23 Primarily, the service industry jobs were comprised of those in retail trade, the public sector, health, business, legal, social, educational, and

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recreational employment fields.24 Between 1970 and 1980, it is estimated that, of the nearly twelve million women who increased employment population statistics in the non-agricultural payroll sector, almost three-quarters of them entered service 25 In ustries Moreover, during this period, the Labor Department report also points out that women's entry into the semi-skilled and skilled blue-collar jobs of the goods-producing industries grew very slowly. The increase for this time span was estimated at ten-percent. Employed females' entry into professional job occupations, likewise, was slow. In this regard, their numbers only experienced a modest increase during the decade between 1970 1980. Significantly, in terms of increas ing their employment numbers, women's 'largest gains in the professional occupations of nursing, accountancy, engineering, and computer sciences. In relation to the breakdown of the number of females who became gainfully employed in professional and non-professional jobs during this same ten-to-eleven-year period, the Labor' Department report further states: In 1981, women accounted for almost 97 percent of all registered nurses, little change from 1970; 39 percent of all accountants, up from 25 percent; close to 5 percent of all

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engineers, up from 2 percent; and 27 percent of all computer specialists, up from 20 percent. The non-professional occupations with the greatest job gains were white-collar secretaries and cashiers; service workers who were cooks; and in the operative field, truck drivers, nearly all secretaries were women in 1981 (99 percent) just as they had been in 1970, and 86 percent of all cashiers were women, littledifferent from 1970. The proportion of women who were cooks, however, declined from 63 percent in 1970 to 52 percent in 1981, while the proportion who were truck drivers rose2So 3 percent, almost double the 1970 figure. Several conclusions can be drawn from the data by the u.s. Department of Labor. First, it supports the known observation that predominantly "women's occupations" are still being overcrowded by the entry of working females. In numbers, their presence is ever-increasing in distinct job categories that have been both historically and traditionally set aside as "women's work." Second, despite the slight increase in the number of females becoming employed in predominantly "men's" occupations, their population gains are still adjudged to be insignificant. Therefore, it appears that the magnitude of females entering nontraditional jobs has not substantially changed the occupationally sex segregated situation. And, third, the most important conclusion that can be deduced from the data is that men's and women's 59

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population statistics in. their respective job class .occupations have remained relatively stable, showing virtually few changes since 1970. 60 By year-end 1983, the united states civilian workforce was estimated to have employed forty-eight million full and part-time females. Their employment numbers represented nearly a fifty-percent increase from slightly more than a decade ago, in 1974. For whatever reason, the "-increase in the number of employed females strongly suggests that more women have found it necessary to work. A large part of what constitutes the reasons why women work is economic necessity. Since 1980, women have increased their labor force participation as a result of obtaining full or part-time employment. Several causes can be cited for the increasing number of employed females engaging in paid work. First, the bare reality of both the domestic and international economic situations has mandated that they work, in some cases, to supplement the family's income. Another major factor for women's employment is their need to provide assistance when their husbands have been temporarily or permanently furloughed from their jobs. Thiid, in some cases, women have had to work second jobs or longer hours on the ones they hold

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61 just to make economic means meet economic ends. Such is brought on by the continually escalating costs of living and a changing economy. Another cause for a growing number of females becoming employed results from pattern changes in both familial and domestic life. In other words, women work today than ever before because socialized processes have been altered. Family populations are significantly smaller in numbers than they used to be. Sex socialization roles have changed and are constantly being redefined. Since the responsibility for child care has also changed, the once clearly-defined woman's socialized, domestic duties have undergone dramatic alterations. And, on the whole, women are more educated. Consequently, an increasing number of them work to reap rewards from their major investments in yea"rs of formal i zed training. Most of these ongoing social changeshave made available to females, single or married, more time to devote to their development or to procure full or part-time employment solely because they need to work. As Seidman aptly points out: [The] accelerating increase in the number of women wage earners may reflect, in part, the impact of inflation and unemployment among men. More and more women have had to take paid jobs to help support their families. Patterns of family life, too, have changed.

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More women have fewer children so they may return to the paid labor force and remain in it for longer periods of time than in by-gone years. One out of every three marriages ends in divorce, leaving more women with the primary r2,ponsibility for supporting their families. Figure 1, "Most Women Work Because of Economic Need," shows by percentage the number of employed working women in the United States, relative to their marital status. The information is given for the year ending 1979. Women have entered the workforce in increasing numbers, but whether single, married, or divorced, 62 relative earnings are proportionately less than those men earn. This is true whether one talks in terms of the woman's engagement in full or part-time employment, or whether the comparison is made of the wages women earn in both professional and non-professional jobs. Women's relative earnings make up an important aspect of the comparable worth controversy. In this respect, two significant elements provide the foundation for the discussion. The first concern relates to the need to' gain some insight about the aggregate wages employers pay to their male and female employees. What is of further importance are the sexes' median earnings, which result from their

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0< 90/0 iflClllll8 27% 1'1"",,01 t>, ... _, ClIIote ... Sucoel"' I ._ltN, .... b' .... .. I ,lh' 0'1 W

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64 employment in predominant"ly, sex segregated job classes. The second concern pertains to the problematic aspect of ascertaining whether the wage gap prevalent in the sexes' aggregate earned pay is attributable to any factors other than to each one's human work capital contribution differences. By and large, employers pay women three-fifths of what they pay men. That is to say that, for every dollar men earn, women earn fifty-nine cents. The difference in the sexes' relative aggregate pay makes for the wage gap. The male-female median earnings ratio has remained relatively constant for almost the last fifty years. In 1938, for example, women's to men's relative earnings were also fifty-nine cents for every dollar paid to the male wage earner. In 1958, twenty years later, the ratio of female to male earnings was fifty-eight cents. In 1963, prior to the enactment of federal legislation to address the unequal male-female pay problem, women's to men's aggregate earnings were sixty-three cents. The following year, in 1964, for every dollar the employer paid to working males, working females were paid an average of fifty-nine cents. The dramatic decrease in the employed woman's average paid wages reverted to the 1938 level, and was

PAGE 76

65 slightly more than that of 1958. The post-1963 decline in the employed female's aggregate wages has been referred to as one of the strangest paradoxes ever to result from the passage of remedial legislation aimed at correcting an aspect of employment, sex and pay d .. 28 Iscrlmlna lon. What makes the declination of women's earnings after 1963 paradoxical is that it seems to run contrary to truth; one would have logically expected the employed female's relative pay to increase beyond the aggregate level of sixty-three cents. Instead, their wages declined. Since 1964, females' to males' relative pay has hovered at fifty-nine cents. Figure 2, "Fully Employed Women Continue to Earn Less Than Fully Employed Men," shows the median wages of full-time white and minority male and female workers for the years 1968 and 1978. Compositely, both in 1968 and 1978, white males earned significantly higher average wages than minority men, white women, and minority women. In these years, minority men's median earnings exceeded those of white and minority females. In each of these years, also, minority females' average earnings lagged behind those of white females. In 1968, white males earned an .average of $8,014; white females earned an average of $4,700.

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''';-' $3.677 ,. 29. 0:151988 -, im ...... o: }'--'. i :' .': .... E 1,;..... '. --""';0-...... :,. Sou!re ; orr"", s..cn.tary, U S Departmenl 01 Labar, data pubished tho Census, Department CommeICIO_ Odoberl980 1-1 0\ .0\

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67 Hence, in 1968, the female-to-male relative earnings ratio was slightly less than fifty-nine In 1978, men's aggregate wage was $16,194; women's average earnings was $9,578. This, too, turns out to be a female to male median wage ratio of fifty-nine percent. The second part of the consideration deals with the nature and'causes of the male-female wage gap and, moreover, seeks to substantiate or refute whether it is characteristic of disparate features. Three questions provide the analytical framework for the basis of the discussion's treatment The first _question asks whether the pervasiveness of the male-female earnings gap results from differences in the wage and salary rate determinations established by the market forces of labor supply and demand. does the pay gap ensue from the sexes' human capital difference? And, third, do such factors as occupational sex segregation and the discriminatory undervaluation and undercompensation of the employed woman's work and wages account for some or all of the male-female pay disparity? Are market forces responsible for the gap that exists in the sexes' aggregate pay? This question is an integral part of the comparable worth controversy. Pay equity opponents argue that, regardless.of-the

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68 sexes' respective job occupation dominance, males' and females' median wages and salaries are determined unbiased through the free market factors of labor demand and supply. Further, comparable worth opponents also assert that, through the interplay of these marketplace dynamics, prevailing job rates and their associated wage prices are set objectively for predominantly male and female work classifications. In this sense, the job price determinations are not significantly influenced by factors that may tend to incorporate discriminatory elements. Comparable worth supporters, on the other hand, rebut the opponents' stated contention. First, they claim that marketplace labor demand and supply wage price determinations are not objectively established and do, therefore, become affected by external influences. Moreover, pay equity advocates buttress their argument by taking the position that marketplace job wage price determinations encompass historic and systemic sex and compensation biases that employers have traditional utilized in depressing the earned pay of the employed woman who works in predominantly female job classes. The wage depression, they further allege, stems from the perennial undervaluation of women's work. And the devaiuing of the employed woman's work,

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it is further claimed, results in their being undercompensated in these sex segregated job classes. 69 As contended by equal work value advocates, historical employment practices formulate the disparity in male and female relative median earnings. Their contention, in this regard, appropriately introduces the next aspect of the consideration. That is, based on the known differences that exists in the aggregate pay, how much of it can be explained by male-female human capital factors? In this respect, the attributes possessed bythe employed female and male--education, training, and work experience, are taken into. Typically, employers often use these three attributes to justify unequal wage and salary payments to their male and femaie employees. The weight of authority tends to substantiate that, althoughemployed.females may lack the needed training and comparable years of' workforce experience relative to employed males, 'women's comparative formal educational levels are just as high as men and, in some cases, higher. It is an acceptable truth that the more formal education or training a woman possesses, the more she is' likely to be employed. In this respect, Congresswoman Griffiths comments:

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The more education a woman has, the more likely she is to be in the labor force. Seventy percent of all women workers in 1972 had at least a high school education, and one in eight was a college graduate. Although these women, on the average, are as well educated as men, there is a difference in the distribution of men and women in the labor force by occupational category and median income. For example, seven percent of men workers and thirty-five percent of women workers are employed as clerical personnel. Despite the large number of women, however, the median income for a female college graduate was only $5,551; for men in the same occupation; median earnings were $8,617. Although fourteen percent oof both male and female workers were in the professional and technical fields in 1972, the median 'income that year was $11,806 for male college graduates, but only $7,878 fQr women [I]t is clear that America is deprived of half its resources when a woman is denied a good job or a policy-making position Although the median school years completed is the same for both women and men in the labor force, women with the same educational background as men generallyhave"different jobs, with less pay, and in some cases fewer and less costly fringe benefits. Let us look at occupational segregation first. Among college students and graduates sometimes only a subtle difference in location or title will indicate role of the female employee. As of 1983, slightly more than seventy-percent of all employed females had at least graduated from high school; and, Oat least twelve-percent, or one in eight, 70 had completed their college education. The u.s. Bureau of Labor Statistics (BLS) reported that men graduating from high school and college can expect to earn higher average lifetime earnings than their female

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71 30 counterparts having comparable educational levels The projections anticipated that males' aggregate lifetime wages will be nearly double that of employed females who spend comparable time in the labor force. Further, the report states that female college graduates can expect to earn about sixty-percent of the median lifetime wages men earn. Employed men and women who complete college are expected to earn aggregate lifetime wages of $1.2 million and $.7 million, respectively. The figures for the sexes' average lifetime pay,. that is for male and female graduates, appear to show the same comparative .earnings males and females who do not complete college are expected to earn $861,000 and $381;00, respectively. the differential in the relative aggregate male-female earnings the presented data, one can categorically conclude that employed men are paid significantly higher wages than employed females. For the most part, this results because society places a higher value on the male sex's education, knowledge, skills, abilities, training, and workforce with respect to the formal or informal training of employed women and their workforce experience, it is also accurate to say that working males have an

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72 advantage over working females. Working -women contend that working men have secured this advantage over employed females because employers afford males more training than they do females. Hence, men become the recipients of preferential hiring. This explains how the male sex obtains an advantage in acquiring labor force experience over the female sex member. Training, in this regard, includes both the on-the-job employment training and apprenticeship programs accessible to men. Moreover, employers also will make provisions for men rather than women to benefit from supplementary job training programs in the furtherance of their vocational careers. Employed women and pay equity advocates claim that employers do not extend to females the same employment training privileges and the equal job to employed men in the betterment of their workforce labor contribution. These factors have the affect of negatively impacting the aggregate male-female wage earnings. In the final analysis, men become more promotable women and better trained for jobs. These factors inevitably generate their higher wages and salaries. The time spent by males. and females in the labor force is the final aspect of determining whether the wage gap in the sexes' relative earnings can be

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73 explained in whole 'or in part by this ,factor. The aggregate time men and women spend working does vary. It is a known that men's employment longevity significantly exceeds that of women. What makes this true, it seems, is the socialized notion that men are the family "breadwinners." Hence, employers look upon males both for employment longevity and stability. The only likely disruption to the male's employment tenure is the fulfillment of his military obligation. On the other hand, employers tend to regard with skepticism the employed woman's intentions in relation to her long-term workforce participation and stability. To a large extent, this is attributable to the female sex's child-bearing capabilities, and, the time women may require for giving birth to their offspring and in caring for them. Consequently, one can safely say that the employment tenures of working men and women do have influence on their relative earning levels. How much it actually accounts for that part of the male-female pay gap is indeed difficult to identify, factually. Taken as a whole, the education, training, and workforce participation time of employed males and females do bear relationships on their median paid wages. Though the absolute extent of what impacts

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these factors have on the sexes' earned is quite difficult to state with certainty, several studies of relevance have concluded that, even after allowances are made for the difference of these three factors, a significant percentage of the wage gap still remains unexplained. Studying the male-female aggregate earnings matter, Duncan, et al., concluded that nearly two-thirds of the sexes' pay gap resulted from factors other than their workforce experience and the job incumbent's individual skills required to do the job. The writers studied the pay gap problem for fifteen years. The study involved examining 5,000 families. Their findings support pay equity proponents' contention that employment biases do tremendously impact the wages paid to the sexes. According to the writers: Women's workforce aspirations, at an early age, direct them into 16w dead end jobs such. as librarians, nurses, secretaries, teachers, and waitresses. The relativeness in the median educational levels are so insignificant that these differences only account for about two percent of the earnings differential. Working males are doubly likely to get training, once in a job. Working males outnumber working females in having authority over compensation and promotions. For men, the is one in four7 for women it is one in ten. 74

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75 It is also suggested that the wage gap is influenced by work factors such as male and female occupational placement and their levels of skills, education, and motivation. In addition to these, Joy Ann Grune points out that sex discrimination and the presence of other illicit factors also affect the earnings employers pay to their male and female employees. Says Grune: Studies have shown, however, that even after adjusting for some of these and other factors such as age, region, and industrial concentration, much of the female-male earnings differential remains unexplained. [Racial and sexual] [d] iscrimination in hiring, promotions, and pay scales continues to be a majo: [pay] women (and mlnorltles) ln the workplace. Social institutions also influence the low wages female employees receive for their labor force input: through cultural, economic, legal, political, and social modes and their resulting influences. At early ages, males and females are guided along paths that are remarkedly different, socially. They are socially conditioned to take on roles that clearly make for their sexual distinctions. Their training is altogether different. Young boys are conditioned to those activities that require strength, power, control, endurance, and superiority. Young girls' early training emphasizes those qualities and activities that

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76 have feminine emphases. From their early school years, the educational paths of young boys and girls are also different. The educational pursuits of each becomes oriented toward traditional male and female interests. Culturally and socially, occupational myths and stereotypes about females also work to depress the employed woman's paid wages. Among the most common myths is the notion that the female's place is in the home. Its counterpart is that the male member is the family's "bieadwinner." Martha Griffiths speak about the misconceptioris: Men are breadwinners and women are wives or widows: men provide necessary income for their families, but women do not: families are supported by men, not women. Another cultural my.th that tends to cast a dark shadow on the is the so-called "riice girl theory".34 This theory postulates that since females, particulaily young_ones, have rich fathers or will be married off to rich husbands, it is unnecessary for them to work. The stereotype goes on to purport that upon the death of the married woman's rich husband, she is left heiress to an abundance .of wealth and with 35 "tender, loving sons" to attend. These myths carryover irito the workforce and appear to have a substantial impact on the value employers place on the employed woman's abilities,

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77 work, and paid Likewise, they affect the training, job career development, and growth opportunities employers extend to the family laborer. The effects these have on the woman's employment status serve to limit her job opportunities and career advancement. Much like the negative effects that stem from the aforementioned myths and stereotypes and impact the employed woman's occupational status, the one relating to the presumed time she will be a labor force participant is also debilitating. The labor force 'intermittency stereotype operates in a manner that makes employers reluctant to entrust women with key organizational positions on, a long-term basis. Their for doing this is to prevent severe workforce disruptions as a result of the woman's temporary or permanent departure from work. This is further explained both by Seidman and Lipman-Blumen: In the world of paid work, the myth that women are only working temporarily enables employers and male employees to rationalize practices and attitudes that operate daily to push them into the least skilled', lowest paying jobs. The myth influences employers' decisions shaping job opportunities and men in contradictory respects. Employers similarly are resistant to hiring women or training ,them for jobs in which they are not readily replaceable or substitutable. ,As a result, women are kept in minimumtraining, Substitutable positions from which there is no strong career ladder to jobs that offer meaningful resources

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of income, status, or power [Because of this] when more women choose to remain non-parents, their ability to develop human capital in terms of educational and work experience and their access to more responsible higher-stj,uS and higher-income jobs should increase. Moreover, Seidman elaborates on how employers use the labor force intermittency myth to rationalize their failure to provide females wi th adequate "job training, and how employers manipulate females wages during various economic cycles. She states: The myth [that women will be in the workforce on a temporary basis also] provides employers with a ready rationalization for failure to provide women with clearly defined upgr"ading, on-the-job training, or higher wages in periods of expanding demands for labor. [For example], [W]hen demand slackens and output falls, employers rationalize laying off women before men for similar reasons. In some instances, women been hired to replace men in traditional men's jobs when the men have demarided wages considered too This practice tends to come to public notice primarily when women have been hired to replace men during strikes. Historically, it was a significant factor bolstering trade union efforts to exclude women employment in particular fields altogether. Socially, sex discrimination is perhaps the biggest societal factor that keeps the woman from achieving economic equality in the workplace. In addition, it keeps her from securing the highly paid job positions within work organizations and also prevents her meaningful entry into predominantly 78

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male-occupied jobs. The social perpetrated on the woman in this regard is often subtle. Like almost all other social discriminatory 79 forms, sex discrimination, too, has an invisible guise. Legal institutions have also played an active role in discriminating sexually against the woman. Historically, laws enacted under the cloak of protecting children and women actually had the implied effect of preserving white male dominance and, moreover, served to isolate women from competition with men. A example of this is the protective labor laws passed to reguiate the work activities of women and children. Women and children were legally from working in certain types of employment 39 and at certain times of the day. It has also been said that domestic relations laws and tax laws incorporate features that discriminate against the female sex. In terms of the laws aimed at assuring females nondiscriminatory employment treatment, working women believe thoe ones mandating their enti tlement to equal pay and equal employment opportunities, on the whole, have outserved their usefulness. They hold this belief because employment sex:discrimination is still rampant and, moreover, their work and wages are both

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80 undervalued and undercompensate as direct consequences of these systemic disparities. The discrimination effected upon the female sex by the legal system is closely interwoven to that characteristic of political institutions and Politics remains a major social roadblock to women. Relative to their total u.s. population, women are grossly in elected positions at the national, state and local government levels. The disproportionality of this situation favors men. Since the 1970s, however, females have increased their elected numbers in public, elective office. Presently, it is estimated that women represent approximately five-percent of all elected officials. The number of females elected and appointed to political office is a requisite for effecting the legal changes needed for the female sex to reach parity with men. In conclusion, the social battle confronting the female sex in its quest to attain sexual equality with the male sex appears to stern from a multiplicity of sociological factors. The elements that obstruct women's progress in this regard are both historic and systemic and, further, are deeply ingrained in society's cultural, economic, legal, political, and social institutions. In the occupational context, the

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. 81 disparate maladies that result from female social sex discrimination are adjudged to be the root causes of why the employed woman's work and wages are undervalued and undercompensated. Cultural beliefs, ideas, values, myths and stereotypes about the woman as female and about the woman as a employed workforce member have also impacted that sex's level of paid wages. As.to the effect of cultural values on the pay difference that exists in the working man's and working woman's relative wages, Helen Remick comments that these general factors include the following: 1. You get paid more if you have to supervise others. 2. You get more money if you are responsible for lots of money or expensive equipment. 3. The more costly the effects of errors on your part, the more money you make. 4. The more decisions you make, the fewer precedents there are, and the harder it is to predict outcome, the higher your wages. 5. You get some compensation for dangerous, dirty and heavy physical working 6. You get paid to keep secrets. 7 If d d 1 40 women 0 1 you ge pal esse occupational sex segregation and wage discrimination do act to impact the employed woman's work and wages. The constant influx of women into the already overcrowded,

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82 predominantly female job classes has the effect of further eroding their wages. Frances Hunter offers testimony to this realization by recognizing that "the most important cause of lower relative earnings is the fact that they are trapped in female occupational ghettos. Day Creamer identifies three other factors deemed responsible for women's lower relative wage payments: 1. Women are denied access to higher paying 2. Women are denied equal pay for equal and 3. Jobs traditionally held by women--so called "women's work--are paid less the skills and expertise requlred. Joy Ann Grune expands the list with additional causes that also impact the female sex's employment status and earned compensation. [Women receive] unequal pay for equal 2. [D] enial of promotion and transfer opportunities into men's 3. [I]nappropriate classifications of duties performed by women into lower pay 4. [S] hort career ladders in female-dominated 5. [E] ntry requirements not integrally connected to job performance, which blocks women from higher pay

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6. [L]ow m1n1mum wage laws which often don't [sic] apply to some women: 7. [V]iolation of labor laws by employers that prevent women from organizing: and 8. [T]he depression of wage rates for female and occupational classes. Since the early 1970s, public and private unions have become actively involved in the comparable worth problem. In many respects, however, unions are said to have been working through the collective bargaining process for years to fight for and obtain pay in9reases for their employed female members. Though this is alleged too be the case, in past times, unions, too, have been accused of discriminating against women and minorities. Their policies and practices in regard have operated to prohibit these classes of workers from gaining entry into the traditional, all-white, predominantly male job classifications. Whether the employed woman is or is not a union member also bears upon the paid wages she receives. It appears that the sexes' socialized role 83 process may also playa part in this determination. In this respect, there are many reasons why male and female workers mayor may not affiliate themselves with unions. As the consideration pertains to the employed woman about these concerns,Seidman explains:

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The fact that so,few'women have joined unions may be, in part,-the result of another type of socialization that had led many to ignore available evidence indicating that women in unions have earned signif!iantly higher .wages than those not in unions. In recent times, the trend has reversed and, presently, more working females have joined unions because females who belong to unions earn higher relative pay than those who do not. It is estimated that the female union member's wages _are about thirty-five percent higher than those of the non-union female. Seidman further points out that the latter's reluctance to affiliate herself with unions may reflect her own socialized belief that such is not Ul ady-like.In terms of their numbers, it is approximated that slightly more than ten-percent of all working females belong to collective bargaining unions. For males, the figure is thirty-percent. Within the past two decades, unions have been instrumental in getting courts to strike down employers' discriminatory wage policies and practices, as they relate both to equal pay and employment civil rights considerations.46 And, again, though it is recognized that labor unions do not have unblemished records in terms of championing the civil rights of their w.orkers, some collective bargaining pay

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85 reformers in these organizations "have been hearing and passing upon disputed wage cases for years."47 Whether or not an employed female belongs to a union, there appears to be a relationship between her apparent occupational segregation in paid jobs, the wages she earns, and their relative degree of bargaining power. Ellen Cassedy states: Job segregation is the major mechanism for reducing the bargaining power of workers or potential workers so that the employer can pay low wages without fear that the workers go have nowhere to go. Their relative degree of bargaining power for better wages is eroded because the female laborer is trapped in an overcrowded job ghetto. Women's exodus from these jobs would only result in their replacement by more females. Cassidy's statement appears to reflect reality in that, indeed, the employed woman has no place to go. Finally, ihere seems to be a strong nexus between the causes and effects of the employed woman's occupational segregation and the wages she is paid by employers for her labor force contribution. The pay disparity in the sexes' relative earnings is well-documented. In this respect, the data tend to support the working women's contentions that, relative

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to the wages employers pay men who work ,in predominantly male job classes, women who work in 86 predominantly female job classes are paid significantly lower aggregate wages as a consequence of job sex segregation and pay discrimination. Human capital differences between, the sexes account for only a small portion of the apparent wage gap found iri the employed man's and woman's median pay. From an occupational viewpoint, employment, sex and pay discrimination are' not new. offers a statement to this effect and, moreover, draws an analogy between the use of cheap immigrant labor by yesterday's employers and. the use of cheap female labor by today's employers: occupational segregation and wage discrimination in American history are not new. An early example of an expanding industry that used a ghettoized'workforce is the wave of immigrants at the turn of the century who were actively recruited to the expanding steel and textile industries. They were crowded into low paying, dead end jobs and stereotyped as unreliable,.needing less money to live on, unmotivated, and unfit for promotion. The latest massive infusion of cheap labor into the American workforce is women. They have entered the workforce in great supply, unorganized, and desperate to earn even a low wage to help their families survive. The use of f6rced occupational segregation to create and maintain a lower wage and job ghetto for women is exactly the same as in the case of the newly arrived immigrants providing a supply of cheap labor for the sweatshops at the turn of the century. The use of cultural bias to reinforce the

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creation of a crowded job ghetto and to keep womeri's expectations down and of cheap labor up, is also the same. In much the same fashion that occupational segregation, wage discrimination, and the under-87 valuation and undercompensation of the employed woman's work and wages are not novel phenomena in today's society, neither are the considerations embedded in the employment maladies that comparable worth seeks to correct. As Winn Newman points out, the comparable worth concept is not new, but it is relatively 50 untried. This, too, began to take on a different perspective during the early 1970s. It was during this time that employed women began to institute their demands for comparable worth work wages. The public attention women and their supporters were able to keep on the pay issue began to reap them small, but significant, victories by the close of the decade. In many respects, comparable worth became the working woman's response to the inability of present employment laws to deal with the underpayment of women who worked in sex segregated jobs. To women, their entry into predominantly male job classes in increased numbers is very important if they are to overcome some of the disparity in the male-female wage gap. It seems that

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even this line of thinking, also, is not new. Donna Lenhoff explains: The initial response of the woman's movement, following the civil rights model, has been to gain success for women into the traditional 'men's jobs', hoping.to gain greater sex integration. Thus, the fight has been for equal employment opportunity, with the emphasis on eliminating barriers to women's51 employment in non-traditional women's jobs. Despite the public exposure the comparable worth concern has attraqted in recent times, women still have a long way to go in achieving wage parity with men. The former's entry into predominantly male job classes has been marginal, at best. For the most part, working women are still "ghettoized" in heavily female occupied job classifications and are paid' low wages. And, what appears to further frustrate the solution to the problem of resolving the male-female wage and salary relative earnings disparity is the 88 stark truth that most working women who are employed in sex segregated jobs do not wish to abandon the positions and become.employed in nontraditional, male job positions. Their rigid adherence to this claim gives deference to the mostJEundamental aspect of the comparable worth concern. That is, it is essential to correct the disparities that result from undervaluing and undercompensating employed women's work and wages

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89 because of their desire to retain employment in the fields in which they are currently employed. Their position in this regard is not to be construed as abandoning the emphasis which, heretofore, has been instituted in their aim to eradicate superficial social occupational barriers to women's employment opportunities to acquire equitable workforce treatment. Since humans are infinitely variable, women, like men, will opt to work in the job classes in which they feel most comfortable. For this. reason, they will elect to secure employment in fields of their own choice. The practical considerations of this matter make it important, as the employed woman claims, for substantive remedial, actions, be undertaken to eliminate all facets of employment discrimination. Pay equity advocates say that, first, all sex barriers must be removed from employment1 second, that predominantly female jobs must be objectively evaluated to prevent the undercompensation of the employed woman's work1 and third, that employers use objective job evaluation schemes to develop equitable' compensation plans that will, in turn, remunerate the working female for her comparable worth labor value contribution to the work establishment.

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90 Short of implementing these three remedial resolutions to the employed female's job problems, the comparable worth controversy is not likely to subside. Pay equity advocates contend that the controversy is not likely to dissipate because a subliminal aspect of the comparable worth job issue is that of women's rising aspirations. Women's modern-day aspirations and expectations have disturbed today's social system. Perturbation results from the woman's lack of equality with men. In this sense, equality includes the woman's social, .economic, and sexual pari ty with man's, among other things. In their pursuit of these desired social ends, females have directed their energies toward the improvement of their overall occupational, economic status. Moreover, their efforts are concentrated on the expansion of women's job opportunities, enhanced occupational careers,.anct wages equal to those employers pay men for comparable worth value based on productivity output. As long as these ends remain unrealized, the social system will come under constant challenge. Harold J. Leavitt provides his assessment of how the social system, once at equilibrium, presently finds itself being challenged by what he characterizes as elements--the woman's heightened consciousness and aspirations.

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It seems to me that we have to begin our analysis at a point in time, perhaps a decade or so ago, with a system that is in equilibrium but which is also unjust: the stereotyped system in which the man is the breadwinner and the woman is the housewife. Then we perturbed that system. I am not sure of the source of the social forces that caused the perturbation, but essentially we raised the consciousnesses of women and, to some extent, of men. So the system must now deal with a new element, the ig2reased level of aspiration of many women. Economic and social justice are the driving forces behind women's heightened workforce aspirations to be paid comparable worth value salaries and wages. As Day Creamer further points out, pay equity "is a realistic issue and one integrally tied to women achieving economic equality."53 As to the issue's realistic soc ial aspects, Grune" comments: Essentially, equal pay for work of comparable value is labor issue family issue, as well as a women's issue. On the whole, the comparable worth concern cuts across a broad spectrum of social issues and involves a host of value-Iadened ideologies. In this respect, the equal work value pay philosophy, moreover, cuts across a multitude of cultural, economic, legal, political, 91 and social values and barriers. Further, it attempts to transcend these historical obstacles. The comparable worth consideration is beyond that of the more narrow one represented by equal pay. The former does indeed

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92 attempt to cut across a broad range of social concerns. Doherty and Harriman observe that "the concept of equal pay is so basic that support for equitable wages is virtually universal, often crossing barriers of class and political ideology."55 Support for the implemen-tat ion of the comparable worth concept, however, does not at all appear to be "virtually universal." To date, there seems to be no overwhelming consensus on the part of public and private employers to affirmatively adopt the equal work value idea. Socially and economically, opponents of the comparable worth idea believe that its implementation would wreak havoc on an otherwise stable socioeconomic system in America.. Furthermore, pay equity proponents claim that comparable worth would "revamp structural wage and salary relationships in order to eliminate or reduce the allegedly discriminatory disparity" in the sexes' relative earnings. E. Robert Livernash, a comparable worth opponent, states: Supporters of the comparable worth theory believe that differences between the rates currently paid for jobs and positions predominantly populateg6by men are indicative of sex discrimination. Although one has to regard with appreciation Livernash's comments, the weight of the data seems to suggest that sex and pay discrimination are

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functionally related to the earnings employers pay to their male and female employees who predominate in their respective job classes. The extent to which the two account for the prevailing male-female wage disparity remains immeasurable and, by and large, factually undetermined. 93 Pay equity foes use this claim as a basis for advancing another aspect of their argument: that comparable worth is flawed because it "relates to relative earriings'and not to relative rates Though there may be some validity to opponents' argument in this regard, it is important to bear in.mind that the parts constitute the whole. That is to say that relative compensation rates, the parts, make for the whole of both men's and women's relative earnings. Whether one talks in terms of the relative rates or earnings paid to the employed woman, it is the depressed wages and salaries they receive that comparable worth seeks to correct on the basis of their equal work value contributions to work organizations. The wage depression results from their employment in sex segregated jobs. Grune asserts that lithe issue of pay equity focuses on the depression of wage rates for female-dominated occupations and occupational classes."S8 More descriptively, Donna

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Lenhoff characterizes the employment situa1;ion pay equity attempts tQ correct: Thus the campaign for equal pay for work of equal worth has risen. By prevailing wage scales, women employed in 'women's jobs' (e.g., secretary) invariably earn less than men in 'men's jobs' maintenance worker), which are in no s.ense more demanding. is simply valued less than men's. The employment worth of males and females is the real issue that comparable worth_addresses. This becomes of prime concern simply because employed females are paid lower relative earnings 94 than employed males, though the value of each one's job may be equal. Despite however, the evidence strongly suggests that employers value the worth of the man's labor over the woman's. In this regard, the record speaks for itself. Proportionately, men's relative earnings are significantly higher than women's, yet the human capital qualities of each are no greater or lesser than the other's, on the average. Their educational levels are relatively the same, and the differences to be found in the man's and woman's human capital assets only account for a minor portion of the wage gap in the sexes.' earnings. To a large extent, the data may signify that women's lower relative pay and the correspondingly lower relative

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95 return on their human capital investments, in all likelihood, point to the realizable conclusion that the in general is unilaterally victimized by sex discrimination, both socially and occupationally. To paraphrase P. Chandler, the pay discrimination that appears to victimize the female wage earner "does not appear to be a social accident.,,60 Rather, it appears to be purposeful in its intended consequences. Hence, the need for remedial action appears. to be real in attempting to correct the wage discriminaticin that results in the undervaluation and undercompensation of the employed woman's work and wages. This formulates the bases for rational, social changes. Socially, it appears to be a matter of continuing the efforts to eliminate sex-based pay discrimination in the workplace. Economically, however, the problems seem to present more complexities than those enmeshed in the social aspects of the issue. For one, paying women on the basis of their jobs' equal worth, or comparable value contribution, will impact the .profits and revenues of private and public employers. Whether such changes would ever wreak havoc on the entire u.S. economic structure remains speculative. In this respect, one person's guess is an plausible as '-

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96 another's.' Second, the issue's economic aspects become more complex because, on the whole, most public and private resist the idea of having to remunerate their female employees on the basis of equal work value job performances. Their resis'tance to the implementation of the comparable worth idea invokes a host of other considerations, mainly legal and political in context. Employment sex and wage discrimination, whether imposed upon black, white, minority, male, or female citizens, by any other characterization, is still employment sex and wage discrimination. in correcting male-female pay disparities, the economic considerations of the comparable worth problem should not bar the legal and political determinations needed to resolve further occupational, sex and compensation discrimination. Legally and politically, the bottom-line resolution of the comparable worth concern, inevitably, means higher economic wage costs to employers. Arguably, such considerations should not weigh so heavily as to undermine constructive efforts to obviate the discriminatory employment disparities that comparable worth seeks to remedy. It has been estimated that the cost to remedy the female employee's undervalued and undercompensated work and wage

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97 situation is $200 billion. In the final analysis, whether the comparable worth concern is voluntarily addressed on a mass scale by public and private employers, or whether it is addressed by federal laws, the latter, particularly, is sure to encounter resistance. This is because private and public employers have to bear the economic penalties of being involuntarily compelled to do things as a result of the enactment of national, state, or local laws aimed at remedying founded or unfounded social abuses. Livernash elaborates on the employers' view of having to bear the economic costs of social legislation: employers face the most immediate ramifications of federal rules and regulations which are either ambiguous or impractical, and they are first to bear the cost of requirements which are established without consideration of the consequences of their implementation. On the other hand protected groups and the Federal Government share responsibility, no similar penaltles. Conceivably, one could also make a case that it is the discriminatee, or discriminatees, who first bears the inexorable penalty that results from employment discrimination. such appears to be the case whether the individual, or individuals, is victimized by racial, sexual, or religious discrimination. The

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98 offensive employment practices affect the recipients' equal job opportunities, their evaluated jobs and job performances, and their paid wages. Moreover, a second argument could be made with respect to the penalty to be borne by the taxpayers, who would incur the expense generated by the enactment and administration of national, state, and local laws designed to cure the social ills of discriminatory practices. As it relates to employment, authorities now believe that race and sex discrimination are more pervasive than they were twenty-five years ago.62 Under the Carter the Equal Employment Opportunity Commission (EEOC) also got involved in the concerns raised by the comparable worth controversy and, particularly, the employment problems of sex and pay discrimination. Celarier characterizes the EEOC's position on comparable worth under the Carter Administration: the concept of comparable worth has been championed by the EEOC as a tool for fighting the sex discrimination that has ghettoized 80% of working women in traditional low-paying female occupations and made equal pay for equal work' a the few who break into male territory. In the spring of 1980, the EEOC held formal hearings on the comparable worth topic.64 The federal agency regarded the sex and pay employment discriminatory

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claims as problems that demanded formal attention by the Federal Government. Although the EEOC is without the necessary formal and legal power to actively pursue comparable worth's implementation in public and private employment, under the Carter Administration, it offered its support to the pay idea in principle. Under the Reagan Administration, the EEOC's position has not been supportive of the equal pay for equal work idea. The Reagan Administration's EEOCand U.s. Justice Department have both aired their disapproval of the merits of equal work value notion. At any rate, employed women and pay equity supporters challenge the employer's uses of historical job methods and, further, identify them as the causal agents for the ongoing undervaluation and undercompensation of the working woman's work and wages. The true essence of the comparable worth concern is to correct these alleged employment disparities rather than for women to enter predominantly male job fields in significant numbers. If the wage gap in the sexes' relative earnings is indeed the result of female sex and pay discrimination, then it should be continually monitored, studied, and, above all, corrected. As Day Creamer further points out, the purpose fbr doing this is that "the wage gap

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provides a standard for measuring women's economic status."65 She moreover states that "changes in the 100 wage gap provide a real measure of progress or the lack of it" in the woman's quest to achieve economic I 66 equa lty. The" equal pay for equal work value issue is but another aspect of the employed woman's goal of adding dimensions to both her social and economic equality. In this regard, comparable worth has become the modern-day mechanism used by working females to remedy perceived employment wrongs. It is further looked upon as the "cure-all" for overhauling the traditional job evaluation methods, processes, and practices private and public employers have historically used to assess jobs and assign pay. Grune writes: The demand for comparable worth questions the wage setting process in a similar but more basic way. Job evaluation studies which compare jobs on the basis of factors such as skill, effort, "and responsibility, have found that female-dominated occupations tend to be paid less than ma167dominated occupations" of comparable value." Grune is saying that, with modifications, the same traditional job evaluation procedures employers have historically used to evaluate organizational jobs, basically, are now being utilized to prove overt, sex-based pay disparities among and between

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101 predominantly male and female job classes. These emerging pay equity job evaluation methodologies are also serving to further document and give credibility to both the causes and the magnitude of the disparities in the sexes' relative earnings. What is also being substantiated by these comparable worth studies is that, even upon the demonstration that the evaluated predominantly male and female jobs are of equal value to the employer, the latter is still significantly undercompensated, relative to evaluated job values of the former's work positions. The significance of these new comparable worth job evaluation studies tend to point strongly to the finding that the employed woman's work and wages are systematically undervalued and undercompensated as a result of marketplace sex discrimination. Hence, it a appears that male-female, gender-based differences may not only play a key part in the evaluation of the jobs worked by men and women, but they are also determinative criteria used to establish the sexes' respective relative pay rates and, their relative aggregate earnings in paid jobs. Again, the parts constitute the whole. Relative compensation rates, the parts, inevitably, make for relative earnings, .the whole.

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102 Summary In conclusion, the chapter began with the assertion that occupational sex wage discrimination, and the undervaluation and undercompensation of employed women's work and wages are the root causes of the working female's contemporary comparable worth pay concern. Men's and women's socialized sex roles were identified as causative agents in making for each one's general social treatment and stratification. Their divisions were clear insofar as the paid occupations men and women worked. Correspondingly, the male and female sex member took on certain types of work and, moreover, came to predominate in these job classes. The social practices of the time precluded women from working jobs that had been set aside for men. The employed woman knew this and, as a result, dared not defy the social decorum of the day. The jobs men worked paid them significantly higher wages than those employers paid to women laborers. Women's earned wages were low and depressed. Typically, they became employed in the worst jobs and under the worst conditions. Though men abandoned these low-paying the continual influx of women into these already predominantly

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103 female job classes further eroded the employed woman's labor value. In truth, their increased numbers in these work positions aggravated and, likewise, perpetuated the female sex's occupational segregation. In this manner, their job clustering resulted in the further undervaluation and depression of the working female's work and wages. The undervaluation and undercompensation of the employed woman's work and wages have become the subject of the comparable worth controversy. As a wage determination doctrine, comparable worth job evaluation schemes would instill more equity in the process of assessing predominantly male and female job classes in arriving at their relative equal value to employers In this sense, their assessment processes would,presumably, involve procedures that would evaluate male and female work positions on the basis of more objective job factor criteria to arrive at the equal value of the jobs employing men and women. The employer's historical uses of the traditional job evaluation methods and the role they play in the comparable worth pay dispute are examined in the following chapter.

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NOTES -CHAPTER II Joy Ann Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 39. 2using female clericals as an example, Ann Seidman explains how female job overcrowding comes about and how female jobholders become the recipients of low wages. See, Ann Seidman, ed., Working Women: A Study of Women in Paid Jobs (Boulder, Colorado: westview Press,.1978), p. 82. 3see for example, Remick, "The Comparable Worth Controversy," Public Personnel Management Journal, vol. 10, no. 4, Winter 1981, pp. 371-382. 4Donna Lenhoff, "Equal Pay for Work of Comparable Value as a Strategy," in Joy Ann Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 57. 5The statement characterizes this writer's definition of the comparable worth outcome on a broader occupational basis. 6Donald P. Schwab, "Job Evaluation and Pay Setting: Coricept and Practices," in E. R. Livernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council, 1980), p. 51. 7Joy Ann Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 39. 8Jean Lipman"';Blumen, "Toward a Homosocia1 Theory of Sex Roles: An Explanation of the Sex Segregation of Social Institutions." in Martha B1axal1 and Barbara B. Reagan, eds., Women and the Workplace: The Implications of occupational Segregation (Chicago: The University of Chicago Press, 1976), p. 17. Quoted from Peter M. B1au, Exchange and Power in Social LIfe, (New York: J. Wiley & Sons, 1964).

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9Ibid., pp. 16-17, original quote. 10 b'd 17 1., p. llElsie Boulding, "Familial Constraints on Women's Work", in Martha Blaxall and Barbara Reagan, eds., Women and the Workplace: The Implications of ,Occupational Segregation (Chicago: The University of Chicago Press, 1976), p. 95. 105 l2Jean Lipman-Blumen, "Toward a Homosocial Theory of Sex Roles: An Explanation of the Sex Segregation of Social in Mattha Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976), p. 17. l3Margaret Mead, Male and Female (New York: William Morrow & Co., 1949), pp. 159-160, quoted in Judith A. Baer, The Chains of Protection: The Judicial Res onse to Women's Labor Le islation (Westport, Conn.: Greenwood Press, 1978 p. 72. l4Jessie Bernard, "Historical and Structural Barriers to Occupational Desegregation;" in Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976), p. 87. 15 d' h h Ch' f Ju lt A. Baer, T e alns 0 Protectlon: The Judicial Response to Women's Labor Legislation (Westport, Conn.: Greenwood Press, 1978), pp. 14-15. l6Ibid., p. 15. 17 Karen Oppenheim Mason, Comment III, on, "The Social Institutions of Occupational Segregation," in Martha Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The Implications of Occupational segregation (Chicago: The University of Chicago Press, 1976), p. 81. l8winn Newman, Statement by International Union of Electrical Workers and the Coalition of Labor Union Women Before the House Subcommittee on Employment Opportunities, in Joy Ann Grune, Manual On Pay Equity (Washington, D.C.: Conference Publication, 1980), p. 80.

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106 19Judith A. Baer, The Chains of Protection: The Judicial Response to Women's Labor Legislation (Westport, Conn.: Greenwood Press, 1978), pp. 14-23. Baer's characterization of the jobs women worked, and the working conditions under which they were employed, depicts a description of that gender being trapped in dead-end, low paying occupations. 20Martha Griffiths, "Can We Still Afford Occupational Segregation? Some Remarks," in Martha Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976), pp. 84-85. 21Nancy F Rytina, "Occupational Segregation and Earnings Differences by Sex," Monthly Labor Review, January 1981, p. 49. 22Ellen Cassedy, "Job Segregation and Wage Discrimination in the Clerical Workforce" in Joy Ann Grune, Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 144. 23United States Department of Labor, Bureau of Labor Statistics, "The Female-Male Earnings Gap: A Review of Employment and Earnings Issues," Report No. 673, September, 1982, p. 2. 24Ibid. 25Ibid 26Ibid 27 d d k' WASt d f Sel man, e ., Wor lng omen: u y 0 Women in Paid Jobs (Boulder, Colorado: Westview Press, Inc., 1978), p. 1. 28Melinda P. Chandler, Comments, "Equal Pay for Comparable Wqrk Value: The Failure of Title VII and the Equal Pai Act," Northwestern University Law Review, vol. 1., no. 75, 1980, p. 914, Footnote 4. 29Mar;tha Griffiths, "Can We Still Afford Occupational !Segregation? Some Remarks," in Martha Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The 'Implications of occupational Segregation (Chicago: The University of Chicago Press, 1976), pp. 7, 9-10.

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107 30 Department of Commerce, Bureau of the Census, "Lifetime Earnings Estimates for Men and Women in the united States: 1979," (Washington, D.C. Government Printing Office, 1983), PP. 2-3. 31Greg J. Duncan with Richard D. Coe, et al., Years of Poverty, Years of Plenty: The Changing Economic Fortunes of American Workers and Families (Ann Arbor, Michigan: University of Michigan Press, 1984. Extracted from USA Today, July 25, 1983), p. 1. 32 Joy Ann Grune, e ., Manua on Pay Egulty (Washington, D.C.: Conference Publications, 1980), p. 21. 33# .Martha Griffiths, "Can We Still Afford Occupational Segregation? Some Remarks," in Martha Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 19 pp 8. 34Ibid 35Ibid 36Ann Seidman, ed., Working Women: A Study of Women in Paid Jobs (Boulder, Colorado: Westview Press, Inc., 1978), p. 55. 37Jean Lipman-Blumen, "Toward a Homosocial Theory of Sex An Explanation of the Sex Segregation of Social Institutions." in Martha Blaxall and Barbara B. Reagan, eds., Women and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976), p. 21. 38 Ibid. 39For an excellent treatment of protective labor legislation affecting women and children and how it impacted each one's employment status and treatment see, JudithA. Baer's The Chains of Protection: The Judicial Response to Women's Labor Legislation, Connecticut: Greenwood Press, 1978). 40Helen Remick, "The Comparable Worth Controversy," Public Personnel Management Journal, vol. 10, no. 4, Winter 1981, p. 375.

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41Frances Hunter, "The Female-Male Earnings Gap," in Joy Ann Grune, Manual on Pay Equity (Washington D.C.: Conference Publications, 1980), p. 16. 108 42Day "Organizing Strategies: Closing the Wage Gap Between Men and Women," in Joy Ann Grune, ed., Manual on Pay Equity (Washington D.C.: Conference Publications, 1980), p. 51. 43Joy Ann Grune, ed., Manual on Pay Equity (Washington D.C.: Conference Publications, 1980), p. 37. 44Ann Seidman, ed., Working Women: A Study of Women in Paid Jobs (Boulder, Colorado: Westview Press, Inc., 1978), p. 57. 45Ibid 46winn Newman, and Carole Wilson, "Comparable Worth: A Job Inequity by Any Other Name ," in Joy Ann Grune, Manual.On Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 54. 47Ibid 48E11encassedy, "Job Segregation and Wage Discrimination in the Clerical Workforce," in Joy Ann Grune, Manual On Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 144. 49Ibid 50Winn Newman, Statement by International Union of Electrical Workers and the Coalition of Labor Union Women Before the House Subcommittee on Employment Opp6rtunities, in Joy Ann Grune, Manual On Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 81. 51 Donna Lenhoff, "Equal Pay for Work of Comparable Value as a Strategy," in Joy Ann Grune, Manual On Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 57.

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109 52Harold J. Leavitt, Comment II, on "Social Institutions of Segregation," in Martha Blaxall and Barbara B. Reagan, eds., Women. and the Workplace: The Implications of Occupational Segregation (Chicago: The University of Chicago Press, 1976), p. 78. 53Day Creamer "Organizing Strategies: Closing the Wage Gap Between Men and Women," in Joy Ann Grune, ed., Manual on Pay Equity (Washington D.C.: Conference Publications, 1980), p. 51. 54 Joy Ann Grune, ed., Manual on Pay Equity (Washington D.C.: Conference Publications, 1980), p. 40. 55Mary Helen Doherty and Ann Harriman, "Comparable Worth: The Equal Employment Issue of the 1980s", Review of Public Personnel Administration, vol. 1, no. 3, Summer 1981, p. 12. 56E R. Livernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C., Equal Employment Advisory Council, 1980), p. 3. 57Ibid 58Joy Ann Grune, ed., Manual on Pay Equity (Washington D.C.: Conference Publications, 1980), p. 37. 59 Donna Lenhoff, "Equal Pay for Comparable Value as a Strategy," in Joy Manual On Pay Equity (Washington, D.C.: Publications, 1980), p. 57. Work of Ann Grune, Conference 60Melinda P. Chandler, Comments, "Equal Pay for Comparable Work Value: The Failure of Title VII and the Equal Pay Act," Northwestern University Law Review, vol. 1., no. 75, 1980, p. 941, Footnote 4. 61 E R. Livernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C., Equal Employment Advisory Council, 1980), p. 3. 62United states Commission on Civil Rights, "Social Indicators of Equality for Minorities and Women," U.S. Commission on Civil Rights (August, 1978), p. iii.

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63Michelle telarier, "Money: Challenge of the Eighties--Comparing March, 1981, p. 42. The Paycheck Job worth," Ms., 110 64United States Equal Employment Opportunity Commission, Hearings on Job Segregation and Wage Discrimination (Washington, D.C.: Government Printing Office, 1980). Pay equity hearings have also been conducted by the u.S. House of Representatives. See, Pay Equity: Equal Pay for Work of Comparable Value, Joint Hearings before the Subcommittees on Human Resources Civil Service Compensation and Employee Benefits of the Committee on Post Office and Civil Service, Ninety-Seventh Congress, Second Session (Washington, D.C.: Government Printing Office, 1983). 650ay Creamer "Organizing Strategies: Closing the Wage Gap Between Menan<:i Women," in Joy Ann Grune, ed., Manual on Pay Equity (Washington D.C.: Conference Publications, 1980), p. 51. 66Ibid 67 Joy Ann (Washington p. 39. Grune, ed., Manual on Pay Equity Conference Publications, 1980),

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CHAPTER III JOB EVALUATION AND COMPARABLE WORTH Contexually, the relationship between job evaluation and the comparable worth concern is whether current evaluative procedures and methods actually measure the worth of jobs. In this respect, the equal pay for equal work value doctrine challenges the traditional application of job evaluation plans and seeks to determine in its own right whether historical assessment practices undervalue and undercompensate the employed woman's work and This chapter examines the job evaluation topic and the relationships it bears to the comparable worth controversy. Moreover, it assesses the history of job evaluation, its traditional methods and uses, its role relative to institutionalized compensation system, its problematic features, and alternative evaluation schemes to its current application. Job Evaluation: Its Role and Scope Job evaluation is the fundamental aspect of an employer's compensation administration program. Its

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112 systems provide public, private, and non-profit work organizations with an orderly and systematic means of evaluating jobs and assigning wages to those positions. In this context, job evaluation plans create the employer's rationalized wage and salary these then can be used to systematically and consistently attach pay rates to work positions. Without these orderly and systematic features of job evaluation plans, the administration of an employer's compensation objectives and programs would be chaotic' and disrup-tive. Such administration would also lack a sense of both equi ty and uniformi ty in its applied techniques and outcomes. Within employer institutions, work has to be organizationally arranged and appropriately classified for pay purposes. Job evaluation and its systems accomplish this. In addition, the use of job evaluation plans are also important mechanisms for achieving a variety of other organizational purposes. Like evaluating jobs and assigning them pay, these other purposes are also very central to the personnel administration process. Job evaluation plays a very important role in the wage determination process. Purportedly, its techniques and procedures measure the worth of jobs. Whether they, in fact, do has been the subject of

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113 academic debate since the initiation of job evaluation plans in employment. Despite this, however, job evaluation plans have long been used by employers to evaluate work and to remunerate the workers who perform it. With regard to evaluated work, the object is to systematically arrange its units in an orderly fashion so that tasks can be assessed for pay. Work units consist of job tasks and job duties. The identifiable units of these tasks and duties are effort, responsibility, skill, and working conditions. A series of job duties, or a group of tasks, comprise the work to be performed. Job performance, in turn, is remunerated on the bases of its assessed, constituent parts of effort, responsibility, skill, and working conditions. Historically, the four make up the compensable factors, or elements, upon which employers compensate all for hire and work positions. The employers' wage and salary payment to the hired laborer becomes the quid pro quo for the employeefs rendered labor services. The job content of work is what the employer actually pays for. It is the recognized and, hence, evaluated portion of effort, responsibility, skill, and working conditions of the job position. Before jobs can be evaluated in terms of these four elements for

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114 pay purposes, the work positions must first be ranked. Ranking serves the purpose of establishing each job's position in the organization's hierarchical structure. Ranking is usually done by evaluating the jobs relative to one of the four compensable factors, a combination of them, or on others. For example, jobs can be evaluated on the basis of content importance or difficulty, and then arranged into a hierarchical structure. Once the jobs have been evaluated and ranked, they can be classified for pay purposes. The wage and, salary rates employers ascribe to work positions are called job prices. Though there are many dynamic aspects to the compensation processes of attaching job prices to work positions, once the wagesetting process is consummated, the priced jobs can then be arranged in the organization's pay structure to determine their relative worth. To ascertain the worth of the positions, their corresponding wage relationships to one another are established horizonally and vertically. In effect, once the process has run its course, an orderly, systematic ranking of the evaluated jobs, along with their assigned job worth or values, is derived. From this, the relative worth of the job positions can be obtained. And, once the employer attaches the nonmonetary benefits, such as fringe benefits, to the

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.positions' compensation, the true worth of the. previously priced jobs is known. Together, the monetary and non-monetary fringe benefit differential defines the employer's total compensation package. The Goals and Uses of Job Evaluation Systems 115 Numerous parts of job evaluation systems comprise their organizational goals and uses. For example, McCarthy and Buck identify four goals of job evaluation plans. They. state that "the goal of a job evaluation plan must be equitable, consistent, understandable, and an administratively feasible system for ranking jobs for pay and other purposes within a given organization. Implicitly, job evaluation systems are built upon the concept of equity. According to McCarthy and Buck, equity is a very important job evaluation goal and feature. Job evaluation plans must appear to be fair in their applications to employees, mainly. And, they must also appear to reflect what the employer regards as equitable in relation to the administrative aspects of compensation programs. Relative to their applied techniques, the employer's job evaluation methods or practices should not be such that they appear to be fair in form by operating to the

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116 advantage of Some and to the disadvantage of others. Inconsistencies of this type undermine the concept of equity and fair pay and tend to affect the employee. Equity goes beyond this. Fair pay principles also take into consideration how equitable work organizations' internal and external salary relationships to paid jobs are. From an organizational viewpoint, equity is an important ingredient of both internal and external pay relationships. Internally; it is important that the horizontal and vertical relationships of the hierarchically-ranked jobs in the organizational structure demonstrate a fair sense of equity in their positioning and ascribed pay. In this respect, employees must regard the earned compensation levels of the work positions as reflecting fairness. Short of this, perceived unfairness may and often does become the source of worker grievances, decreased morale, and decreased worker productivity. The equity that ensues from the employer's external pay relationship is equally as important as that found in internal ones. External pay relationships emanate from an employer's assessment of what other employers pay comparable work positions similar to his/her own. External pay determinations are those reSUlting from marketplace

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117 factors. Though many.elements determine external wage and salary rates' of jobs, and what work positions ultimately are to be paid, this information is ascertained once the employer's internal rates of pay are reconciled with external ones. The reconciliation of the two may require the employer to make upward or downward adjustments in both internal and external wage and salary rates in arriving at the job prices of work positions. Equity is then characteristic of the pay if, and only if, the employee perceives it as such, for the most part. Reconciling internal pay rates with external ones is a longstanding, institutionalized compensation practice and one based on pure economic theory. Economic theory holds that wages-and salaries are determined by events that occur in the marketplace. The fundamental precept has it that job is worth what it can command in the marketplace--no more, no less. In this respect, job worth is determined by the marketplace dynamics of labor demand and supply and, hence, it is in this sense that equity is established. McCarthy and Buck pointed out that another aim of job evaluation plans is also the consistent application of their techniques. The consistent and uniform appli6ation of job evaluation methods is an

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118 essential objettive of assessment systems ultimately, such application makes for the processes' integrity and establishes reliable and valid criteria upon which their organizational worth can be judged. Moreover, the consistency of their uses, as well as their uniform application, helps to instill a greater sense of equity in their utility, especially as viewed by employees. Another interest served by the consistent application of job evaluation techniques is that their results can assist the work organization in identifying and correcting other weaknesses which may be characteristic of their personnel management programs. The third goal McCarthy and Buck state that job evaluation must feature is comprehensibility. In other words, it is important_that job evaluation plans, their applied methods and their end results, be understood by both the employee and employer. With regard to the latter, the tasks of carrying out the mandate of an employer's job evaluation program is charged to his/her administrators. In this respect, they should fully comprehend the tenets of their employer's job evaluation system, or systems, and know every detailed component of it. This is. essential-if program administrators are to accomplish the delineated

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119 organizational objectives and, above all, promote employee understanding in this regard. Theoretically, job evaluation systems, their measurement techniques, and their outcomes work best when both employers and employees not only understand their features, but also embrace their results. Employees should also be cognizant of how their work performance and other aspects of their personnel activities may be affected by job evaluation and its measurement procedures. Seemingly, the most important goal of job evaluation plans is that they must be effective, efficient,and administratively feasible systems of evaluating jobs, rank-ordering them, and assigning them pay rates. The effectiveness and efficiency of these evaluation systems provide work organization management with a flexible administrative mechanism for accomplishing the institution's personnel objectives. The high degree qf administrative orderliness derived from job evaluation and its processes assure the work establishment that job positions are, for the most part, ranked properly, hierarchically structured, and assiqned wage and salary job rates in an equitable, consistent, and systematic manner. Without the systematic application of these processes, job evaluation, job ranking, job classification, and

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120 compensation determination would be both a burdensome task and an administrative nightmare. Further,' employers.' pay programs would be in a state of flux, and their organizational wage-rate structures and compensation objectives would lack both rationalization and comprehension. In sum, following eight points outline the significant features that should comprise the goals of job evaluation systems: 1. To provide a more workable internal wage structure in'order to simplify and make rational the relatively chaotic wage structure resulting from chance, custom, or such individual factors as favoritism or aggressive employee tenden.c ies. 2. To provide an agree-upon advice for settirig rates for new or changed jobs. 3. To provide a means whereby realistic comparisons may be made of the wage and salary rates of employing organizations. 4. To provide a base from which individual performance may be measured, if so desired. 5. To reduce grievances over wage and salary rates by reducing the scope of grievances and providing an agreed-upon means of solving disputes.

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6. To provide incentive to employees to strive for higher-level jobs. 7. To provide facts for wage negotiations. 8. To facts on job relationships for use in selection, training, transfers, and 2 promo Job Evaluation: Its Finer Points Up to this point, the discussion has examined job evaluation and its general role in the wage determination process. Appropriately, the discussion shifts its emphasis and scrutinizes some of the finer 121 detailed aspects of job evaluation and its systems. As a foundation for examining this consideration, the guiding questions are "What is job evaluation really, and what does its systems do, both in terms of theory and practice?" As a term, job evaluation has been ascribed many definitions. with these definitions have come many characterizations attributed to the term relative to what individuals regard its systems as accomplishing. Prior to discussing each, however, it is essential to give a brief overview of some of the common notions applicable to the subject. For example, at the chapter's beginning, it was pointed out that,

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122 purportedly, job evaluation measures the relative worth of jobs. Widely-held disagreements about this contention have made job evaluation the subject of academic debate throughout, at least, the past century. The dichotomy surrounding job evaluation emanates from this dispute. This polarity of views is based on what job evaluation systems theoretically do as opposed to what they actually do. Donald P. Schwab looks at the issues from the standpoint of assessing job evalua-tion's "prescriptions," or what its plans purport to do, relative to what they do.3 The considera-tion of whether job evaluation systems theoretically, or actuaily, measure the worth of jobs or their relative worth, has become a centrally contested theme in the comparable worth controversy. In this respect, so too have its "prescriptions," definitions, characterizations, and theoretical and actual applications. The International Labor Organization (ILO) defines job evaluation as: an attempt to determine or compare the demands that the normal performance of particular jobs makes on normal workers without taking account of the individual abilities performance of the workers concerned. Whether normal or abnormal, work performance demands are almost always based upon the jobs' content,

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123 identified and evaluated through the job evaluation process. Typically, these are the of effort, skill, responsibility, and working conditions, characteristic of the job tasks and duties to be performed. Job evaluation plans may be both formal or informal. Most organizational job evaluation systems, however, are formal. Whether formal or informal, a fundamental job evaluation precept is that it is the job, not the person or job incumbent, that is the evaluation subject or object. This basic principle is recognized in the ILO's definition. In evaluating the job content of work positions, the personal attributes of the are disregarded. These include qualities of personal knowledge, skills, and abilities, among others. Rather, the job assessment process is one that attempts to identify and evaluate the compensable factor content of the work positions. These determinations are made through the organization's use of both formal and informal job evaluation systems, and they enjoy widespread utilization. E. R. Livernash notes that institutional pay relationships can be derived through the use of both formal and informal job evaluation systems; they are used by almost all work organizations.5 Sibson further points out that some

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124 form of job evaluation is essential to every employer's 6 wage and salary program. The widespread use of job evaluation plans, to a certain extent, is promoted since they have a variety of other organizational uses and purposes. Among other things, they are useful in providing employee organizations with an orderly and systematic means of promoting, demoting, and transfer-ring employees. They are also useful in employee career planning or, alternatively, in prov.iding employers with a further basis for terminating the employment of unproductive employees. From job evaluation also comes the performance standards by which employees are evaluated on an ongoing basis relative to the jobs they hold or, in general, what is expected of the work to be performed. The performance standards emanate from job descriptions. Employees are evaluated both in terms of the jobs' standards and their resultant job performances, relative to what accomplishments work organizations expect. Further, their performance is based on the work positions in which they are employed. Apart from the manner "in which the ILO defines job evaluation, the term has been ascribed a host of other definitions. "The process of determining the classification, rating, or value of an individual job

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in relation to the other jobs in an organization" is McCarthy and Buck's definition of job eva1uation.7 David Belcher, author of Compensation Management, 125 defines job evaluation as "the term usually employed to determine the position of the job in the organization hierarchy by comparing job content."8 He further states that this means that formal or informal job comparisons are made based on "systematic procedures in order to determine the relative position of one job to another in a wage or salary hierarchy."9 In Comparable Worth: Issues and Alternatives, George T. Milkovich defines job evaluation as: the systematic evaluation of job descriptions (summaries of job content) to determine a job structure based upon the contributions or value of the jobs to the organization's goals. Through these procedures, internal equity is translated into a structure of jobs based upon the work perfo:med,and10he value of the work to the organlzatlon. Donald P. Schwab defines job evaluation as "a measurement procedure designed to aid organizations in establishing pay differentials between jobs."ll In effect, though the aforementioned job evaluation definitions are varied, they point to the general recognition that, in the final result, the relative worth of the evaluated job positions is determined. And, the relative monetary worth of the work positions

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126 become known once the jobs' wage and salary differentials are attached. George Hildebrand speaks to the practical side of what job evaluation does as to what it may do from a theoretical, prescriptive In his elaborate characterization of job evaluation, Hildebrand says that its practical application rests upon two mutually dependent, inseparable components: [Job evaluation's first component] is the internal rank order or hierarchy of the jobs as yielded by the chosen method of evaluation--simple point weighting, weighted--components with variable points for 'each, or other systems now in vague [popular fashion]. The other essential component of job evaluation of any form is the associated wage curve that is derived from the external market rates for those key jobs in the structure that possess sufficient inter-firm comparability to acquire as to base pay and fringe benefits. As Hildebrand points out, in.practice, internal job ranking identifies and isolates those key job positions within the organization and then compares them with comparable ones in the marketplace. This occurs both through the selection of some job evaluation method and some weighting standard technique. And, once the key jobs are compared with ones similar to those found in the marketplace, wage and salary rates are attached to the positions. In

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127 actuality, and from an institutional standpoint, the processes are descriptive of how jobs are assigned wage and salary rates in the practical sense. In spite of the observation that employers may select some theoretical or practical framework, or extract certain features or aspects of both in evaluating jobs and assigning them pay rates, the argum,ent nevertheless persists as to whether either of the two job evaluation approaches measures relative job worth. Schwab, moreover, notes that there is a vast difference in what job evaluation plans do as compared to what they purport to do. Sibson comments that job evaluation measures relative job worth "in an administrative sense rather than in an economic or social one.,,13 In looking to the "real object of job evaluation in its and job comparison," Belcher further states that, "it is the content of the job, not the imprecise notion of the jobs' value to the organization" that is actually being measured.14 In this. respect, job evaluation investigation and job comparison determinations involve subjectivity. According to Schwab, "job evaluation is described as a procedure that makes judgments about the job based on content or the demands made on job incumbents."lS It is the subjective judgments made about the content of

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jobs that Remick cite as measuring, and, thereby, reflecting a cultural compensation system rather than the relative worth of work positions.16 Northrup describes two other aspects of job evaluation systems and discusses what they do as opposed to what they purport to do. He states: Job evaluation or other wage classification schemes not only determine. the relationships of tasks and therefore wage differentials, but they also provide a means19f orderly job progression and transfer. Northrup also asserts: Job evaluation and wage classification systems do not set wages. They are merely a means of establishing art orderly wage structure and of encouraging an orderly job progresslon. In summary, there exists a diversified range of views 128 with respect to what job evaluation plans purport to do compared to what they do in practice. Despite the debatable aspects of what job evaluation really does, it remains a valuable organizational tool for work entities to use evaluating rank-ordering them, and classifying them for pay purposes. In this sense, also, even the moot aspects of the job evaluation dichotomy do not undermine its general purpose. Reiterating its general purpose, Belcher states. The general purpose of job evaluation in compensation administration is to provide a measuring instrument that sets forth the

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relative position of jobs in the organization 19 hierarchy based job-related contribution Bearing in mind the general purpose of job evaluation provides an appropriate departure point for examining the subject from a historical viewpoint. A Historical View of Job Evaluation Historically, job evaluation has played an important role in both the development and ongoing operations of institutionalized compensation systems. Its employment uses date back to the early 1880s, nearly a century ago. It was during that time that Frederick W. Taylor began to promote the formalized 129 uses of job evaluation techniques in public and private work sectors. Job evaluation and its potential uses and benefits to employers gained special popularity, particularly with the Federal Government. What contributed to this in large part was the enactment of the Pendleton Act of 1883 by Congress.20 The law's passage created for the Federal Government a national civil service system. The united States Civil Service Commission was also established by the new law as the body that would serve as the central personnel agency for the national government.21 The now-defunct u.S. Civil Service Commission was charged with the tasks of

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130 hiring, firing, testing, and evaluating either job incumbents or those seeking employment with the Federal Government. Congress' intent in passing the Pendleton Act was directed at the specific objective of ridding the national government of the "spoils" or patronage-type employment system. Congress' establishment of the u.s. Civil Service Commission provided the Federal Government with its first major in making for the application of consistent and uniform employment procedural techniques, which were integral features of job evaluation. In this regard, the efforts of the national government were very instrumental in promoting job evaluation and its worth. The major thrust job evaluation received came nearly forty years later, in the early 1920s. It, too, ensued as a result of another Federal Goverhment initiative. In 1922, Congress passed the Classification Act. Since it was to take effect in 1923, the law was known as the Classification Act of 1923.22 The statute provided the Federal Government's personnel system with a uniform job classification system. Relative to the classification of most federal jobs, the Act required their systematic arrangement, or classification, into distinct pay grades or defined

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131 salary ranges for compensation purposes. The Classification Act's wage level ranges are referred to as General Salary (GS) grades. The .national government's establishment of the salary grade job classification scheme did a lot to foster a modern-day, popularized job evaluation method knows as job classification. Other important things also came about during the 1920s which directly resulted from job evaluation or from the improvement of its applied techniques. All these factors impacted personnel practices in the public and private sectors and, in so doing, promoted the use of job evaluation in employment. It was during this time that Merrill R. Lott the 23 point-method job evaluation system. The period also witnessed the trials and tests of new employment methods of public and private personnel management. Potential employees were tested prior to being hired on jobs, they were evaluated prior to being transferred or promoted, and they became the primary objects of how to increase employee productivity through the job evaluation and job review processes. Job evaluation experienced its greatest unprecedented rise in popularity during the 1930s. It occurred mainly in private sector employment. Job

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132 evaluation became private management's main instrument in both neutralizing and thwarting union growth and organizational takeover. The strife between management and labor over the right to organizational control during this time caused management to forcibly adopt and implement job evaluation plans to counterbalance the influences of unionism. Livernash points out that systematic job evaluation became incorporated into the arsenal of private employers as a major countervening force to the direct and indirect challenge of unionism.24 To a large extent, a twofold struggle confronted unions, which sought to become the exclusive representative of the employer's employees in the workplace. First, they stood in the direct path of competing with private sector management for the absolute control of the workers in the job place. Second, they faced the fierce struggle of competition among one another in their quest to secure the right to become the only collective bargaining agent of the work establishment. In relation to the two problems that confronted unions, their solutions were far from being easily resolvable. Management remained adamant in its refusal to give up the control of the organization and the right over what occurred in the workplace. And, on the other hand, amongst themselves, unions engaged in

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133 bloody battles, vying for the right to be the employee's bonafide dollective bargaining agent. In this regard, jurisdictional disputes were difficult to resolve among rivaling union factions. It was during this strife and the uprecedented rise of unions that job evaluation was used by business as an important tool to check the unions' expansionist movement. Job evaluation was used by private employers to determine, essentially, what work had to be performed and who was to be hired by the work organization to do it. Moreover, once these two things were decided, management also used job evaluation as a mechanism to control the work processes in the work environment and to determine what wage and salary rates would be paid for the j6bs. In the end, these .factors and others brought about, and certainly influenced, institutionalized compensation systems. The continued use of job evaluation by management caused unions to eventually realize the benefits of evaluation plans which could, too, serve in their best interests. Mutually, both parties came to recognize that job evaluation could serve each interests by instilling a greater degree of orderliness in the labor-management process and, in the final analysis, make for industrial peace. Such was particularly the case insofar as pay

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disputes were involved. In addition, job evaluation applications were,' in all likelihood, responsible for impressing upon unions that a rationalized means of resolving wage contentions existed and, furthermore, 134 could be utilized to their advantage in achieving their purposeful objectives. As Northrup further explains: The advent of unionism forced companies to review their internal wage structure and to join with unions in establishing methods of internal wage review that did not interfere with plant operations or peaceful and orderly collective bargaining. Another significant event that promoted the use of job evaluation in American private enterprise was the increasingly likely participation of the United States in the war which had begun to sweep Europe in 1939. By the early 1940s, the United States' participa-tion in World War II became rather apparent. America's involvement in the war caused consternation on the Federal Government's part in terms of .. being concerned about labor-management activities that might thwart its successful efforts in the impending endeavor. In circumventing the possibility of these potential disruptions, Congress created the War Labor Board (WLB).26 The creation of the WLB was due to the joint cooperation of American labor and management elements. Each regarded it to be in their best interest and in

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the interest of the United States to agree to a governmental mechanism that could address their respective work-related grievances. The WLB's basic purpose was to act as an independent, neutral entity that could hear and, consequently, pass judgment upon the complaints or other grievances stemming from each side's claimed disputes. The major focus of these disputes centered on the wage and salary rates the employer paid employees for working certain jobs. In this respect, wage and salary stabilization, in order 135 to minimize inflationary effects, was another important function that the WLB was with carrying out. Hence, job evaluation became important in the Board's execution of this function. Pasquale and Livy attest to how theWLB's efforts promoted job evaluation: '[Job evaluation] in the private sector became popular and widespread, promoted by the National War Labor Board permitting wage increases only ,for the purpose of correcting in wage structures. These demonstrated wage inequities often affected the work establishment's intra-and inter-plant operations. Livernash provides an explanation of how the process worked in relation to the WLB's -involvement: During World War II, the Board, particularly the regional agencies, received vast numbers of requests either by employees or jointly by employers and unions for adjustments in wage rates for one or at most a few jobs which

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involved more than a small number of employees. Technically, the wage analysts in the regions were required to pass upon the merits of these cases and determine whether an inequity existed which warranted correction. Decisions were often routine. For example, a wage analyst sitting in Boston would be charged with deciding whether a request for a wage adjustment on some specialized job, such as a position in a metal working plant in Springfield, Vermont, warranted an upward adjustment of ten cents an hour to remove an inequity resulting from a comparison between that job and some other specialized position in the plant. Sincethe inflationary impact of these individual adjustments was relatively small, any plausible reason was accepted by the analysts and adjustments were normally approved. 136 Northrup also that the WLB experience "gave job evaltiation and related internal wage classification systems in collective bargaining a tremendous boost."29 Job evaluation schemes became the major means through which alleged wage inequities were addressed and, subsequently, resolved. According to the WLB's policy practices in this respect, as long as it appeared that the employer's job evaluation plan demonstrated pay equity and objectivity, the Board did not rule favorably upon the contendedyage disparity. In fact, as long as the WLB referees were satisfied that the job evaluation method used by the employer was fair, the plan was not challenged.30

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The Board's policy covering these wage-based inequitable pay claims mandated that their general guidelines be followed. In addition, a firm's job evaluation plan and its techniques for evaluating and classifying jobs had to be fair, consistent, and workable toward the end of promoting industry wage stabilization. Northrup sums it up in the following statement: The WLB's interest in job evaluation and related wage classification programs was promoted by its mandate to preserve industrial peace and its need to devise systems that would reduce its tremendous case burden. To encourage employers and unions to settle internal wage classification and job relationship disputes, the WLB not only ordered them to develop systems of their own to resolve these issues, but also permitted a five cents per hour average "increase to settle 'intra-plant inequitie"s' arising from the installation of a job or other wage classification system. 137 JOD evaluation received its biggest boost when the WLB handed down its monumental edict in what is known as the Basic Steel Program. In effect, the Board made it compulsory that steel manufacturers and collective bargaining units devise an industry-wide job wage classification system for the purpose of pay stabilization. In carrying out its instruction, the WLB imposed upon the two parties a body of guidelines designed to assist each in dev"ising amicable

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job evaluation methodologies. The pertinent parts of the Board's, enumerated, instructions are as follows: (c) The company and the union shall negotiate the elimination of existing intraplant wage rate inequities and reduction in the number of job classifications in accordance with the following steps: (1) Describe simply and concisely the of each job. (2) Place the jobs in their proper relationship. (3) Reduce the job classifications to the smallest practical number by grouping those jobs having substantially equivalent content. (4) Establish wage rates for the job classifications in accordance with the provisions of Para. (d) below. (d) The following guide-posts are established for collective bargaining: (1) The extent of wage adjustments required to eliminate intra-plant wage rate inequ"i ties will vary between the companies. From the record, it appears that little or no increase to eliminate intra-plant wage rate inequities will be needed in some plants where wage rates are now in a sound relationship. The largest increase in payroll costs may be expected where little or nothing has been done in the past to correct wage rate inequities. (2) The maximum increase for anyone company shall not exceed an amount equivalent to an average of five cents per hour for all its employees covered by this directive order. (3) The wage rage adjustments which may be made are to be solely for that purpose of eliminating intra-plant wage rate inequities. They cannot be general across-the-board wage increases, and any such general increases will be disapproved. 138

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(4) As an aid to determining the correct rate relationship between the jobsih the particular plant, the company and the union may take into account the wage rate relationships existing in comparable plants in the industry. The contention that wage rate relationships'in other plants in the industry have no significance for this purpose is rejected. (5) The reduction of an out-of-line wage rate shall not be effective to the wages of present incumbents Northrup comments with regard to the significance of the Board's directive: This [the Board's] directive insured the United Steelworkers a co-equal role in the development and administration of the proposed plan, despite the fact that the labor members of the WLB dissented from the directive. It ordered job descriptions and a reduced number of classifications, limited the amount of wage increases which could result from reclassifications incident to the job evaluation plan, endorsed the consideration of wages in comparable plants when' establishing the wage structure under the plan, and 'red circled' all incumbents by proscribing individual wage reductions as a result of the adoption of the proposed plan. These principlei have governed not only the basic steel job evaluation program but nearly all collectively bargained plans, as as many of those installed by management. The use of industry-wide wage and salary 139 relationships within the steel is looked upon by pay equity proponents as a comparable worth job evaluation scheme. This is because industry-wide wage rates were applied to comparable plants., And, because of this, inequitable pay practices and other

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140 wage-related considerations got corrected in spite of the geographical location of the employer's plant or plants. In support of its own position with regard to correcting pay discrepancies on an inter-plant, industry-wide basis, the WLB is quoted as saying that "the contention that wage rate relationships in other plants in the industry have no significance for this purpose is rejected."35 From the early 1880s to the post-world War II period, Belcher summarizes job evaluation's historical evolution: Historically, job evaluation developed out of (1) civil service classification, (2) job analysis applied to time study and selection, (3) early employer wage and salary classifica as part of personnel programs, and (4) u.s. Government regulation of wages during World War II. Requests for job classification by government employees can be traced back to the century. Classification of services on the basis of duties performed has been used in the federal service for over fifty years.. Frederick W. Taylor's involved job analysis as a basis for time study. Job analysis as a basis of selection and placement grew with the expansion of the employee relations function in the 1920s and 1930s. In 1925, Merrill R. Lott devised the first point method of job evaluation. The American Management Association and Industrial Relations Counselors influenced the spread of job evaluation. The National Metal Trades Association took the lead in encouraging the introduction of job evaluation. The spread of unionism since the mid-30s influenced job evaluation installation in that employers gave more attention to rationalized wage structures and improved wage administration as unionism

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advanced. Perhaps the greatest impetus to job evaluation in the United States, however, was wage control regulation during World War II. The War Labor Board, through its concern with wage inequities, its assent to wage increases through the introduction of job evaluation, and its. approval of '3'gte ranges encouraged job evaluatlon programs. 141 Since the World War II era, job evaluation, as a personnel management tool, is perhaps the single, most dynamic component of public and private work organizations. Throughout the past forty years, employers have sought to improve upon the features of the traditional job evaluation procedures by integrating them with techniques adopted to expressly fit their organizations. Traditional Job Evaluation Systems Prior to discussing what one can expect to find in a "customized" job evaluation plan, it is essential to examine the four commonly known historical job evaluation plans: ranking, classification, factor-comparison, and point method. Though there are other job evaluation plans, they are but variations of these for the most part. As stated earlier, the chief aim of job evaluation plans is to evaluate work positions and classify them for pay purposes. Two of the four historical job evaluation methods are qualitative, and

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142 the other two are quantitative. The two qualitative ones are the ranking and classification methods. The two quantitative ones are the factor-comparison and point method systems. Unlike the two quantitative methods, the ranking and classification qualitative job evaluation methods do not yield numerical values or point scores upon which the assessed compensable job factors can be translated into "measurable" job worth points. Whether the job evaluation plan usedis qualitative or quantitative, the four historical methods have their own distinguishable features, advantages, and disadvantages. Furthermore, each also has its distinctive characteristics with regard to its identifiable levels of objectivity and subjectivity, simplicity, complexity, uses, and costs--all part of the tasks of evaluating jobs and assigning pay to work positions. The ranking job evaluation method is perhaps the most widely used and simplest of the four traditional plans. Based on the ranking job evaluation method, work positions are hierarchically ranked in a job structure either in terms of job importance, from the most to least important job or, alternatively, from highest to lowest or vice versa, on the basis of the jobs' identifiable content. Typically, job content

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143 factors are those of effort, skill, responsibility and working conditions. Using the ranking method to determine the relative worth of work positions, the evaluator compares each whole job on a unit-by-unit basis until every position has been evaluated and ranked. The ranking job evaluation method has several distinct advantages over the other three traditional ones. First, it is the simplest of all. Second, its applied evaluation techniques are easy to explain. Third, the method is less time-consuming than the other three. And, because of its economy inthis regard, the ranking method has a distinct advantage over the other ones in terms of the costs associated with the evaluation task. In this respect, the ranking job evaluation method is the least expensive of the four. The ranking job evaluation method has one major disadvantage worth mentioning: The subjectivity involved both in the job evaluation process and the assessment task. Job evaluators are required to use their judgment to evaluate-the job and the work positions' identifiable content. As a result of these judgments, a greater degree of error can result. Sibson explains: the simplicity of the ranking method does little to guide the judgment of evaluators; there is a tendency to judge each job on the basis of its dominant characteristic, so

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that can multiply. ,addition, it is difficult or justify the results to employees managers because there no record judgment of evaluators. In to explain or of the 144 The second of the two qualitative methods, the classification job evaluation method is sometimes referred to as the grading system. Based on this method, job positions are evaluated on the basis of predetermined compensable job factors. For this particular method, skill is usually the chosen evaluation factor, but other ones can be selected. Once the jobs are evaluated relative to one, or many pay elements, they are fit into previously established job classes .or pay grades. At the conclusion of this the jobs relative position becomes known In arriving at this point, Sibson says that the evaluated jobs are placed into the classification or grade that best fits the work position's characteristics and difficulty.38 Belcher likens the classificatiori job evaluation method and its processes to shelves in the shelves being the job classes or grades. Says Belcher: Figuratively, the method may be described as a series of carefully labeled shelves in a bookcase. The primary task is to describe each of the classes so that no difficulty is experienced in fitting eac,h job into its proper niche. Jobs arethen classified by comparing39ach job to the description involved.

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145 As a job evaluation classification is widely used. The Federal Government is the largest, single employer that uses the method to evaluate and classify most of the jobs within the federal sector. The Federal Government's usage of the method dates back to the early 1920s when Congress enacted the Classification Act of 1923. Like the ranking job evaluation method, the classification method also has its advantages and disadvantages. The method's chief advantage is that once the jobs are categorized into their respective job classes, employers and employees alike tend to agree on the placement of jobs in their grades. And, even if disagreement exists about this, it becomes relatively easy to resolve by making minor adjustments or by merely explaining or justifying why the job was so classified. Another advantage of the classification method is that it is flexible. In this respect, flexibility permits the easy classification of both non-key jobs and those too costly and too timeconsuming for the work ,organization to evaluate on an ongoing basis. In this sense, these features of the classification method save time and monetary resources for the work establishment. Similar to the ranking method, a disadvantage of the classification method is that it, too, is

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146 susceptible to a great degree of in its evaluation processes. Despite the classification method's biggest disadvantage, it is a widely used system by both public and private employers. An important observation in this respect is that, even though an employer may not use the classification method as its primary plan of evaluating the jobs within its organization, the organization will use it as a secondary system to double-check the evaluation results of other assessment plans. Moreover, the use of the classification method in this manner presumably provides for a greater sense of internal and external equity in evaluation processes and outcomes. Belcher sums up some of the positive attributes of the classification job evaluation method: Advocates of the classification method hold that job evaluation by any method involves much judgment and that this method permits classification of all kinds and levels of jobs flexibly but with sufficient precision to and acceptance and organlzatlon purposes many organizations, after completing job evaluation by another method, classify jobs into grades to aid in wage administration. When jobs have been placed in grades or classes subsequent to job evaluation by any method or even by informal decision or agreement, it is not unusual to find these grades the major focus of actual compensation administration. When jobs emerge, they may be placed in the job structure by decision or negotiation. It may be necessary to employ the formal job evaluation

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plan only if agreement cannot be reached without it. From a comparative perspective, the two qualitative job evaluation methods of ranking and 147 classification share similarities with respect to some of their advantages and disadvantages. First, both are simple and relatively inexpensive to conduct in terms of time and costs. Second, their applied job evaluation methodologies appear to be easy to explain. Though both methods are popular, the classification method enjoys a wider use by employers than the ranking method. Perhaps, the chief reasons for this are because the classification method has been shown to be both effective and successful in evaluating and classifying a large number of non-key job positions and a large number of workers employed in a comparatively small segment of jobs. A major disadvantage the two methods share is that, because each is qualitative, job worth in numerical terms is not derived at the conclusion of their respective job evaluation processes. The two methods' inability to do this only becomes relevant if the object of the evaluation is to derive the v_lues of jobs on the basis of relativeness. The relativeness of the job values in this sense is determined in terms of job points or job, compensable

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148 factor scores. In this respect, the proverbial question as to whether job evaluation actually measures the worth of work positions, again, introduces itself. Sibson comments: it is very difficult to define levels of overall job worth in any meaningful way. As the number and diversity of jobs have increased, definition of an appropriate yardstick 41 becomes especially difficult. Probing the issue more deeply, Belcher specifically addresses how the effects of unweighted and unscored compensable factors add to the inherent weaknesses of the classification method: Because the grading method considers the job as a whole, compensable factors are unweighted and unscored, which means that the factors have equal weight and little of one is balanced by of another. Thus, terms that express the amount of compensable factors in jobs in the grade are depended on to distinguish one grade from another. Also, it is quite possible that a given grade could include jobs requiring high skill and other jobs that requiii little skill but carry heavy responsibility. By contrast, the factor-comparison method and the point method are the two quantitative job evaluation systems. The methods are quantitative because numerical job points or job worth value scores are derived at the conclusion of their evaluation stages. The method compares the identifiable compensable factors found in each work

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149 position on a unit-by-unit basis. Each pay factor is compared relative to those characteristics found in the other jobs. In this respect, it is first, to identify the key compensable factors upon which the jobs will be evaluated. Second, a predetermined measurement scale that designates the numerical weight of each selected, compensable factor is erected. In the final analysis, the sum of each job's factor score is totaled to determine its overall job worth or value. It is important to underscore that whether the numerical compensable factor are pre-assigned or assigned to the elements after the jobs have been evaluated, they are the products of the evaluators, their and the worth they attach to each factor. The compensable factors of effort, skill, responsibility, working condition_, mental demand, knowledge, ability, or any others are the criteria upon which the jobs under the factor-comparison method can be evaluated.43 Belcher further notes that the factor-comparison method compares jobs by making judgments about which work positions contain more of certain compensable factorsthanothers.44 Sibson also states: various factors are compared on a job-by-job without definitions for the various degrees. [T] he evaluator analyzes and ranks all jobs in terms of one

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factor, then ranks all in relation to a second factor, and so forth, until point rankings have been established for each of the factors used. The evaluator-need then only total the points assigned to a job under each of the gei the job's overall worth. The factor-comparison method also has its advantages and One of the method's strong points is that each compensable job factor of every work position is compared on a individual basis.46 Because of this, the varying degree of each work position's compensable factors do not require150 definition. Though the method's varying degree do not require definition, one of its disadvantages is the potential risk involved in overweighing any identifiable compensable factor measuring factors too heavily. In addition, coupled with the risks involved here, unclear definitions may be ascribed to the compensable factors, further distorting the evaluation's essence. In this respect, Sibson points out that "it is very difficult to explain the results of factor-comparison evaluations to employees or As a precaution against overweighing or measuring too heavily anyone compensable pay element, Sibson also says that a minimum of three compensable should be chosen. The thing to avoid, on the other hand, is burdening the evaluation

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151 process with the selection of too many job. pay factors upon which the positions are to be evaluated. In this regard, Sibson states that the selection of more factors in evaluating the job typically means "the more likely that a given factor will be overweighted or measured twice.,,48 In concurring with Sibson that the use of too many compensable factors is likely to be a shortcoming of the factor-comparison job evaluation method, Belcher states: Discussion of the job evaluation process emphasized the importapce of determining compensable factors applicable to the organization and the job clusters under study. Use of the same factors for all organizations and for all jobs in an runs counter to this approach. [Moreover], [a]nother disadvantage .concerns the use made of key jobs by the factorcomparison method. A major criterion of key jobs in the factor-comparison method is the essential correctness of the pay rate. Since these key jobs are the basis the job comparison scale, the usefulness of the scale depends on anchor points represented by these jobs To the extent that one or more key jobs change over time either without detection or without correction of the scale, users of the job comparison scale are basing decisions on what might be described 50 figuratively as a badly warped ruler. The point method is the last" of the four traditional job evaluation methods. It is also the other quantitative means for evaluating jobs. Of the four traditional job evaluation methods, point method

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15 plans have come under attack by comparable worth proponents more than the others. Point method job evaluation systems have been widely adopted and are in use by, mainly, private sector employers within the United states. Like the other traditional job evaluation methods, point method plans require the identification and selection of pay factors upon which the jobs will be evaluated and assigned compensation. Not only do the factors have to be both identified and selected, but they must also-be defined. The fundamental difference between the point method job. evaluation system and the other traditional methods is that it looks for specific, key elements unique to a category of jobs, rather than an individual work position. Once the category of jobs with key elements or characteristics is determined, degrees are then chosen and ascribed to each identified and selected compensable job factor. Based on these criteria, the degrees are then separated, and they become the standards by which the job elements are measured. These measurements are sometimes referred to as yardsticks. They show the extent to which variance is present in the job categories. Each job within the organization's hierarchy is then ranked against the individual measurement, or yardstick, one-by-one. It

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153 is noteworthy to point out that the "same process is performed using the classification method, except that the jobs are evaluated on a separate scale for each factor and point weightings are assigned.51 In discussing how the point method job evaluation process works, Sibson explains: In evaluating jobs, the analyst simply studies the job duties and compares them against the yardstick. He [sic] then assigns the job the degree which seems to describe best the extent to which the factor is important. The process is repeated for each factor, and the poinS2 values of each factor degree are totaled. Th& advantages of point method plans are said to be their stability, reliability, and validity in the use of their rating scales. "The use of fixed, predetermined factors forces the evaluator to consider th bIt h t b 5 3 e sameJo e emen s w en ra lng every JO And, "[f]urthermore, the assignment of point values indicates not only which job is worth more than another but how much more it is worth.,,54 such a determination has a substantial bearing on the comparable worth problem. At any rate, it is important to bear in mind that the point method's rating scales are merely arbitrary assignments. Desptte this, however, as Sibson pointed out above, the ,relative worth of each job is determined at the conclusion of the point method evaluation process. Belcher offers two additional

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observations with regard to the features of point method plans: Job classes are easily set up in a point plan. The point values make for simple classification either in terms of arbitrary point ranges or on the basis of agreement. Point values also aid in job pricing. When each job or class of jobs is assigned a point value, consistenssassignment of monetary values is possible. As rating scales are developed, every effort is made to the rate with aids in reaching decisitins. Factors and degrees are carefully defined and examples are provided. Judgment is not eliminated, but careful arS6taken to reduce errors to a minimum. The disadvantages of method job 154 evaluation systems begin with the difficulties inherent in developing their plans. In their development, and other inconsistencies" may enter int6 the processes of identifying, selecting, and defining both the compensable pay factors and the degrees as measurements. Moreover, during these processes, bias and SUbjective judgments also may affect them to such an extent that the identified, selected, and defined compensable factors are distorted. In this same manner, the chosen degrees, factor weightings, and point value assignments may also become skewed. Sibson summarizes the disadvantages of the"point method job evaluation system: In addition, there is the problem of determining the correct number of degrees: ideally, just enough degree"s are es-tablished

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to identify minimum measurable differences in the factor. Another special problem of point plan is that of defining each degree clearly enough so that it will serve as a meaningful guide to evaluators and also proyide employees with an explanation of the results. As mentioned before, point method job evaluation plans have come under more scrutiny by pay equity advocates than the other three traditional job 155 evaluation methods. This is mainly attributable to the shortcomings of their evaluation methodologies. The first shortcoming is the plans' inherent weaknesses and inconsistencies in identifying, selecting, and defining the compensable factors for the purpose of evaluating male and female jobs. Typically, as criticism has it, the compensable factors chosen to evaluate men1s and women1s work positions favormale-occupied-jobs over ones. Second, point method plans generally the degtees iri such a fashion that job factor importance and its measurement are emphasized more favorably for male workers than female workers. Hence, women's jobs are typically evaluated on the basis of those compensable factors that have been historically, and exclusively, male-oriented and further reflective of all male physical character is-tics. As a result, job importance and job value worth as they apply to female-occupied jobs tend to be

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156 understated, undervalued, and undercompensated. Indeed, it is contended that the undervalued, undercompensated nature of predominantly female jobs directly results from female work positions being evaluated on pay factors that base their job performance worth on male rather than female attributes. Cultural biases also exert a profound impact upon the jobs women work and the wages they are paid. And, it is also claimed that this makes for the peipetual devaluing of employed women.'s work and worth. The cultural biases that operate on a day-to-day basis in affecting women's job status and job earnings are also linked to process subjectivity. Subjectivity is the third element that comparable worth proponents identify as an obstacle to women's efforts to receive equal work value wages from the jobs they work. This is because they regard subjectivity as perhaps the one factor that causes employers to superficially evaluate the jobs women work. As a result, biases affect their earned wages. Job evaluation studies support the contention of pay equity advocates that, even when it has been demonstrated that predominantly male and female jobs are of equal worth to the employer, women are still paid.significantly lower wages than men. This was substantiated by the first comparable worth job evaluation study.

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157 Assigning Wages toWork Whether employers use one of the traditional job evaluation plans, or a customized one, assigning wages to jobs and determining pay are dependent upon a multitude of variables. Such considerations cover a wide spectrum, ranging from what events transpire in the international, national, state, and local marketplaces. In this respect, the job salary setting process has taken on a global perspective. In the final result; what pay is assigned to work is, in part, influenced by activities at each of these levels. Conventional wisdom dictates that, today more than ever before, there is a broad degree of interdependence among the events that occur in the international, national, state, and local marketplaces. Labor markets are no longer national, state, and local, but secular. In this respect, labor rates, too, have become global in context. Employers compete with one another on a worldwide basis. to the labor resources they need to organizational existence. This also involves competing for the best qualified job incumbent on a worldwide basis. Employers attempt to attract the best person for the job and, because of this, the

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158 individual hired to do the job may come from any place in the world, today. Whether or not the employer is successful in his/her effort to procure the right employee to do the right job is dependent upon a host of considerations. For example, the image the employer wishes to project in the marketplace bears heavily on the matter. This image becomes the projection of how the work entity chooses to present itself in the world communities internationally, nationally, and locally. An employer's projected image becomes significant in terms of the wages it holds out as pay in filling desired work positions. This becomes important if the employer is successful in attracting the needeq, qualified people who can perform the work. Another secular influence that impacts the employer's image in the pay determination process is the effect of compensation laws, rules, and regulations, which mayor may not run counterproductive to the employer's desire to pay above maximum pay rates in securing the individual, or individuals, it wants to do the job. Relative to private sector employment, profit becomes another important variable that shapes employers' decisions about whether they can attract the most qualified people to meet the needs of the organization. These

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and other variables affect the wage determination process. The process in this respect is no longer localized but, again, has a secular context. 159 Setting .aside for the moment how wages are to jobs in the real world sense, pure economic theory holds that job salaries are established by free, market labor demand and supply forces. This was discussed in the previous chapter. Whether internationally, nationally, state, or locally, the marketplace brings together labor buyers and labor sellers. This union becomes the forum for"those seeking to purchase labor services from those willing to sell their labor services for a price. The economic theory of wage determinatiol) further holds that there is an inverse relationship between labor demand and labor supply to the price employers are willing to pay for the commodity of labor. When labor demand exceeds the available labor supply, the market price of those jobs increases. And, conversely, when the supply of labor exceeds the demand for it, the market price of jobs decreases. As determined by the "ideal" situation of labor demand equaling labor supply, the union of the two establishes the market price of the job or its external job rate. Supposedly, the employer has little or no control over the external

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job wage rate since it is determined by free market forces. Pay equity advocates take exception to this. 160 They contend that determined wage and salary market rates are not established by free market forces and, further, reflect cultural biases that operate to depress the employed woman's paid wages. Pay equity supporters also say that employers engage in collusive employment practices and "that this, moreover, causes women's work and wages to be undervalued "and undercompensated. Monopolistic practices can also impact the woman's paid wages. That is, if an employer, or a few of them, has a unique marketplace position, then he/she can act to set the wages of jobs without fear of recourse from its competitors. Such wages could .then be set high or low, or at any level the employer deems appropriate. The point is that an employer who has a monopolistic marketplace position potentially has the capacity to establish the pay rates of jobs arbitrarily. And, finally, another thing that pay equity supporters believEL.affect the wage rates employers pay for female work is the wage surveys that come from the marketplace. They claim that employers purchase wage surveys to make sure the work establishment is not overcompensating jobs. In this

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161 sense, the marketplace wage surveys are used by employers to check and confirm that wages being paid for their work positions are not in excess of those determined by the market, or of those being paid by other employers. Although the purchase and use of wage surveys by employers do not appear to be illegal and of federal, state, or local employment laws, pay equity advocates question these measures when they are deployed topurposefu1ly hold down the working female's earned compensation. The Benchmark Method In the real world sense, pay rates are assigned to jobs in a different way than that postulated by economic theory. Essentially, the task of assigning wages to jobs in the practical sense is comprised of two important ingredients. First, the identification and selection of key jobs is important. Once the key jobs within the work organization, upon which other jobs be evaluated, are identified and selected the second step determines how non-key jobs wili be evaluated and classified for pay purposes. This also includes those jobs which may fall outside non-key job classes. Key jobs establish "benchmarks" upon which all other jobs will be

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162 evaluated'and assigned wage and salary rates. In its own right, the benchmark system of evaluating jobs for pay purposes is different from traditional pay determination methods and is contemporary as well. The objective of the benchmark evaluation method is to compare key jobs within the work establishment with similar ones found in the marketplace. In relation to both sets of jobs, work similarity is based on the job content factors of effort, responsibility, skill, and working conditions. The benchmark job evaluation system operates ,to reconcile the firm's internal job pay rates with external ones. Once the external pay rates are known, employers then have a basis for reconciling established, internal rates of pay with those revealed by the benchmarks. Wage rate reconciliation permits the employer to either raise or lower the existing internal job pay rates. It is during this process that the employer finds out whether it has overcompensated or undercompensated the organization's evaluated job positions. The benchmark job evaluation method has its advantages too. Its most noteworthy one is that it permits the "pegging" of non-key jobs and so-called exceptional ones and allows these to be linked to key ones found to b e important wi thin and outside the

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163 organization. On the whole, unlike the method, the four traditional job evaluation methods do not incorporate the same degree of flexibility in their applied methodologies and outcomes. In addition, the benchmark system has the advantage of helping employers evaluate a large number of job classes which may not be key ones. This makes the process less time-consuming and expensive. Efficiency and economy are major advantages of the benchmark system. Authorities hold a range of views about how the benchmark job evaluation system actually works. In this regard, Sibson, Schwab, and Hildebrand offersthe fo"llowing observatio.ns. According to Sibson, "a significant number of jobs are priced first."SB These are the key. jobs selected within the firm. [T]hen other positions are ranked by comparison to the benchmark. The other work positions are the firm's non-key.jobs. Says Schwab: by using market key jobs as the actual criterion, job evaluation establishes a corresponderice R8tween the market and non-key job wage rates. The market key jobs become the bases by which almost all other organizational work positions are assigned wage and salary rates. In the final analysis, this is how pay is determined and established for

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164 key jobs within the firm and how individuals employed in non-key jobs are compensated. Simply stated, the non-key jobs are tied to the key, marketplace jobs. In the evertt that non-key jobs cannot "pegged" to key jobs in the marketplace, they become "red-circled."61 This is because the jobs are exceptional in nature and difficult to attach to key ones. Hildebrand explains how marketplace key jobs are established. His statement clarifies why it may be difficult to classify exceptional noti-key jObs without "key" job-content standardization: Certain jobs are usually due to technology, across many firms in a given local labor in fact, they may reach across several industries aswell. For example, on the blue-collar side, there are machinists and millwrig.ts, or computer programmers, secretaries and accountants on the clerical side. These jobs provide the basis upon which the wage curve can be built, precisely because they tie the external and internal [labor] markets these reasons" they are called key jobs. Job content standardization, of both the firm's key jobs and of external marketplace positions, is an essential element of the benchmark job evaluation system if, in the end, the derived wage curve is to accurately reflect internal and external salary rate reconciliation.

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165 Job Evaluation and Comparable Worth As job evaluation relates to the comparable worth problem, pay equity supporters contend that, regardless of whether the employer uses the benchmark job evaluation method, or any other method, to assign job wage and salary rates, what transpires in the marketplace reflects the historic and systemic biases that inevitably cause the compensation discrimination in the female wage pay. 'In addition, comparable worth advocateq also believe that market wage surveys typically incorporate a dual determination of separate pay rates for men's and women's jobs. In this respect, they furth.er contend that these dual market wage rate determinations are responsible for men getting paid significantly higher earnings for their employment in pre.dominantly male jobs and for women getting paid significantly lower earnings for their employment in predominantly female jobs. Moreover, these market wage surveys, say .pay equity supporters, are also the instruments used by the employer to further perpetuate the day-to-day, ongoing undervaluation and undercompensation of the employed woman's work and wages. To a large extent, the underpayment of the employed woman is also said by pay equity advocates

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166 to result from the devaluation of female-occupied jobs that occurs when internal key job classes are compared to external ones in the marketplace for pay purposes. Hence, it is also in this sense that those who support comparable worth believe that the undervaluation and undercompensation of women's work and wages occur. In summarizing the discussion to this point, the chapter began by assessing the history of job evaluation and the uses of its methods in public, private and non-profit work organizations. The treatment also focused on some of the general features of job evaluation and what processes are involved in evaluating and pricing jobs. Relative to job evaluation's traditional methods, there are four: ranking, classification, factor-comparison, and the point method. As an administrative tool and a managerial mechanism for providing an ordered means of pay determination, job evaluation is neither a science nor an absolute measurement technique. Rather, no matter how systematically its techniques and methods may be applied, job evaluation schemes are but mere plans for assessing the factor content of jobs for the express purposes of determining the work positions' hierarchical arrangement and, supposedly, their relative worth. Job evaluation does this in an

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167 administrative sense, not in concrete terms. The conditional nature of job evaluation, and what it does as opposed to what it purports to do in theory and practice, has been the subject of divergent views for many years. Whether its applications are theoretical or practical, authorities tend to concur that job evaluation measurement methodologies lack empirical exactness. Job evaluation is a process that a great degree of subjectivity and judgment in its evaluation of the job content factors regarded to be constitueni parts of S4nce job evaluation is recognized as a process involving subjectivity and judgment "in its techniques, biases and other superficial elements can result from its procedures and, hence, can distoit the relative values of job positions. Employed women point to the inherent in" job processes as being responsible of the devaluation of their work and the undercompensation of their paid wages. Revamping.Job Evaluation Procedures to Meet Comparable Worth Challenge The next area of inquiry addresses the issue of whether-current job evaluation procedures can be" improved relative to the emerging comparable worth

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168 evaluation methodologies designed to assess the value of male and female jobs on the basis on neutral job content factors. Such neutral job evaluation criteria are regarded as equitable and are free of the valueladen elements that prevent predominantly female jobs from being evaluated on male-oriented job factors. In order to understand what is being suggested by comparable worth proponents, it is important to examine a few aspects of the general uses of job evaluation by employers. Institutionally, job evaluation systems are by to assess a single job or a variety of positions within the work organization. The latter may include jobs .such as a computer programmer, a program analyst, a keypunch operator, a steelworker, a textile worker, a federal worker, and so on. In addition, employers may have more than one job evaluation plan. Such plans include multiple job evaluation systems: typically, one would cover say, salaried employees and one would shop employees. In work. situations covered by collective bargaining agreements, employers are apt to have a separate job evaluation plan different in features from, for example, their plan for salaried employees. Multiple job evaluation plans enjoy a broader range of

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169 flexibility in their applicati6ns ofa single system. Donald Trieman points out that "[rlelatively few organizations have 'top-to-bottom' coverage by a single job evaluation plan.u63 He goes on to say: Far more typical is the use of several systems to cover different categories of jobs, e.g. a shop plan, an office plan for non-exempt clerical and technical positions, and a plan and administrative posltlons. From an institutional perspective, job evaluation systems are either "standardized" or "custom-built." Staridardized job evaluation plans are those whose blanket agreements cover a broad sector of workers. An example of such a p Olan would be the working arrangement that covers truck drivers under the National Master Motor Freight Agreement. On the other hand, custom-built systems are those sp_ecifically tailored to the organization's needs. Employers often call upon personnel consultants or human resources specialists to devise-and implement the objectives of a tailor-made evaluation plan. Trieman offers more remarks about the features of a custom-built job evaluation system: Systems are often customized to reflect the special features of particular organizations. A hospital may emphasize technical skills and a sales organization may emphasize ability to deal with people, and each will design its job evaluation system accordingly. The well-known steel industry plan was designed to reflect

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the credit traditionally given for responsibility in the cpmplexsteel-making process (Stieber 1959). The aluminum industry plan, propose by the united Steel Workers, in favor of its own custom-built plan that gives much more emphasis to craft skills and less to responsibility, in keeping with the industry's traditional notion of what features of jobs ought-to be highly Resource Counselors, 1978). with respect to the comparable worth concern 170 and job valuation systems, pay equity advocates support a single job assessment method free of bias and .is fundamentally objective 'in determining the true, relative worth of jobs heavily, occupied by either men or women.66 Such methods further mandate the use of a customized job evaluation plan, one that which would relax the historical use of male-oriented compensable job factors and take into consideration those work characteristics more representative of "women's" jobs. Pay opponents reject their proponents suggestion in this regard. They say that it is virtually impossible for employers to implement what may be considered to be a value-neutral, "bias-free" job evaluation system.67 Such a system, opponents also contend, would not take into account the varying aspects of skill, effort, responsibility, and working conditions that are typically prevalent among the jobs worked by men and women. What pay equity opponents are saying is that

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171 not only do men and women work jobs with diverse work content, but, because many employers may have "office" and "shop" employment, the utility of a single custom-built job evaluation plan in covering each is simply not feasible.68 Northrup further explains the difficulty which may ensue from this circumstance: A basic difficulty of placing all employees within one plan is that conditions of work are radically differegg in the office as compared with many plants. the use of a single bias-free comparable worth job evaluation plan may appear to have many advantages over the historical methods, Northrup also notes that its implementation as a wage determination means has the potential of upsetting long-established employee When salaried employees are part of the same they also find that hourly incentive systems result in skewed for equally rated job classifications. Equally rated job classifications based. on equal pay for equal work value are what comparable worth supporters seek.to attain through the inclusion of value-neutral factors in job evaluation processes. They particularly work for these changes as viable ways of assessing more fairly and objectively the worth of female-dominated jobs. What are value-neutral job

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172 evaluation systems and, if implemented, can they effectively eliminate or at least minimize sex and pay biases that affect female job worth? Regardless of their extent, value-laden criteria almost always playa part in job evaluation and wage determination processes. Their presence may help to explain the existence of race, sex, and other illicit discriminatory employment forms. Culturally distorted judgments and values as they apply to the female sex also affect the woman's overall net worth in terms of her human captial value, and may help to account for a significant portion of the wage disparity that exists in the sexes' aggregate earnings. The philosophy behind the comparable worth wage determination doctrine suggests that neutral and sexless job evaluation criteria can be devised and implemented to better assess the worth of predominantly female and male jobs. In this respect, contemporarily, there is an emerging body of comparable worth job evaluation measurement methodologies. These tend to support the contention of pay equity advocates that present job assessment procedures can be improved to minimize historical evaluation biases, likely the causes for the undervaluation and undercompensation of the female's work and wages. Based on this surfacing

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173 evidence, two important observations bear qualification. First, it is essential to note that, whether employers use one of the traditional job evaluation methods, a customized one, or one of the comparable worth models to be discussed, it is both recognized and conceded that subjectivity and bias will never totally be eliminated from the job evaluation process. Second, it is widely acknowledged that there exists no set of job evaluation methodologies, procedures, or'measurement techniques that can determine the actual worth of job positiQns in absolute terms. During the 1970s, institutional efforts attempted to ascertain whether job evaluation, procedures could be devised to measure ,the equal work value of job positions worked by men and women, alike. It was during the early years of the 1970s that the first comparable worth job evaluation study was conducted. However, 'officially, in 1979, the Equal Employment Opportuni ty Commiss ion (EEO,C) formally got Government involved in efforts in this regard. That year, the EEOC commissioned the National Academy of Sciences (NAS) to investigate and report on the problem 6f whether "appropriate job measurement procedures presently exist or can be developed to

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174 assess the worth of jobs."71 NAS studied the problem and filed an Interim Report with the EEOC but, to date, has yet to release a final report. And, at this stage, it remains highly unlikely that a report of its final findings will ever be forthcoming. NAS's Interim Report did, however, identify three inherent shortcomings of current job evaluation procedures that "rendered problematic their utility in assessing job worth in a sex-segregated workforce."72 In this regard, an excerpt from the NAS Report states: the relative ranking of jobs tends to be highly dependent upori which factbrs are used in the evaluation and how heavily each factor is weighted. But the principal for deriving factor weights peg them to current wage rates and thereby reflects existing sex differences in Second, jobs evaluation is inherently subjective, making it impossible that well-known processes of sex stereotyping will be operative in this context as well, resulting in an undervaluation of jobs held predominantly by women. Third, many employers use several job evaluation plans--one for shop jobs, one for office jobs, etc.--a procedure that makes it impossible to compare the w0h of jobs in different sectors of a firm. The 1979 NAS Report is important for a variety of reasons. First, it underscores the realization that problematic features of current job evaluation proce-' dures hampered 'their ability to assess .the worth or

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175 value of jobs. Second, in looking at the problematic aspect of current job assessment techniques, the report confirms the observations that job ranking, evaluation factors, factor weights, factor weights value derivations, and pegging internal pay rates to external ones in the marketplace are susceptible to bias. This being the case, subjectivity and bias can and do affect the employed man's and woman's paid wages because of the inconsistent procedural applications that may accompany evaluative methods. Moreover, cultural values do impact the that affect their relative earnings. Third, the likelihood that pay equity advocates are correct in their claim that working women are indeed victimized by marketplace sex and compensation discrimination emerges more as a truism, since the report formally recognizes the inherent shortcomings of historical job evaluation methods. and their measurement techniques. And, fourth, though' it to'be accurate to say that it is virtually .impossible to compare the wqrth of jobs in absolute terms, job comparisons may, nevertheless, be made in relative terms as long as' it is recognized that this is the applicable norm. In this respect, the worth of some jobs does bear a relative relationship to that of others. This is true whether the work positions are

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solely within the employer's job family or whether cross-relationships are identified among job families of other employers. 176 Under today's evaluation systems, it is proper to say that these same comparisons can be made whether the employer has a single job evaluation plan that covers all its employees or whether the employer have multiple plans that cover a broad segment of its workers. This is not unusual because comparable worth job evaluation schemes purport to cut across the. employer's job families and compare the worth of dissimilar work positions. In terms of their relative worth, the job value difference can be derived for, say, the jobs of a nurse and a The here is not so much the jobs' comparative values as it is the initial objective evaluation of the work positions and the determination of each position's respective value to the work organization. Objectively evaluating the jobs means holding to a minimum the biases that may favor the painter's job simply because it may have or require a male occupant. Comparable worth questions these traditional assessment procedures and the employer's use of historical techniques which, through job evaluation, may be responsible for the ongoing undervaluation and undercompensation of the

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177 employed"woman work and wages. The equal work idea seeks to overhaul these longstanding job evaluation methods and practices through the substitution and use of evaluation schemes that would result in nearly bias-free assessments of the worth of male and female jobs. Short of the implementation of a universally operable, comparable worth job evaluation methodology, pay equity proponents say that, at the very minimum, present job evaluation procedures and practices must be improved to eliminate the employment sex-based pay biases that befall the woman worker. As to the emerging body of job evaluation methodologies aimed at eradicating occupational biases against the female wage earner, worth is responsible for these. In this regard, pay equity job evaluation schemes have begun to emerge and will continue to do so. These techniques are both technically and operationally sound in their capacity to determine the relative comparable worth value of predominantly male and female jobs, though they mayor may not be dissimilar in context. The onslaught of the newly devised comparable worth job evaluation schemes ranges in scope from the use of statistical methods to those methods developed and used by human resource consulting firms. These systems incorporate into their

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178 plans nontraditional job content factors for the purpose of assessing job value and the worth of job positions to the work establishment. Job evaluation plans based on the use of statistical methods are designed to factor out historical job content biases which have heretofore favored the male worker over the female worker. The techniques of these methods merely neutralize the inclusion of illicit evaluation elements, those that may operate to favor male value-ladened criteria. On the other hand, consulting firms and human resource specialists have begun to put forth evaluation plans whose measurement procedures and techniques are structured upon the use of compensable job factors than the historical ones of effort, responsibility, skill and working conditions. TypicallYi the inclusion of other nontraditional" job content factors in their evaluation programs takes into consideration a host of subfactors which, conceivably, may be essential ingredients of the jobs being performed, but have in the past been totally excluded from the application methods of historical asses$ment plans.

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179 The Hay and Willis Methods Since it would be virtually impossible to fully treat here all of the newly devised and emerging job evaluation schemes that have come about and are designed to improve current assessment procedures, the two major ones will be examined. They are seen and discussed in the comparable worth literature most frequently. These are the Hay Method and the Willis Method for job evaluation. Essentially, the Hay Method is a derivation of the factor-comparison, quantitative, historical job evaluation method. Derived from the factor-comparison method, or being a, variation of it, one would logically expect that numerical determinations are arrived at upon the conclusion of the Hay Method's job evaluation process. In total, the Hay Method excludes the traditional job content factors of effort, responsibility, skill, and working conditions in assessing the worth of job positions. Instead, under the Hay Method, the pay content factors of and "accountability" are the elements upon which jobs are evaluated for pay purposes. Edward N. Hay developed the method in 1941.74 Hay regarded the compensable factors of know-how, problem-solving, and

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180 accountability as being the universal elements common to all jobs. Hay defines the three in the following manner: 1. Know-how is the sum total of all knowledge and skills, however acquired, needed for acceptable performance. 2. Problem-solving is the amount of original, self-starting thinking required by the job for analyzing, evaluating, creating, reasoning, and arriving at conclusions. 3. Accountability is the answerability for actions and for consequences of those 75 actIons. Hay went a step further in dividing the three compensable factors into subfactors, or subdivisions, as follows: Know-how Substantive know-how Managerial know-how Problem-solving The degree of structure relative to problem-solving environment. The degree or magnitude of challenge or difficulty of the impending problem.

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Accountability Degree of discretion, e.g. freedom to act. Degree of responsibility, e.g. monetary value that affects jobs, such as asset control, budgetary considerations, etc. The degree of the directness of the impact on actual results achieved. Working Conditions Physical effort Working environment conditions, e.g. conducive to clean, neat environment or7girty and disagreeable, hazardous, etc. 181 The compensable factors and their corresponding are pegged to what Hay refers to as "Guide Charts." Provided in the charts are factor levels and numerical point value assignments for each Hay compensable job element. For the most part, the "Guide Charts" are customized for each Hay client and, hence, will vary from one employment establishment to another. This is likely to be the case whether the Hay client is a public or private employer. The "Guide Charts" become the central feature of the entire Hay Method. In this manner, the charts are the foundation upon which relative job comparisons of the work positions are eventually based. The organizational job positions are "profiled" in evaluating and determining how closely their actual job content compares with that indicated" in the "Guide

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Charts." Trieman provides an example of how the compensable factors of a laboratory technician's job may be using the Hay Method job evaluation system: [I]t might be said of a laboratory technician position thai 70 percent of the job is know-how, 10 percent is problem-solving, 20 percent is accountability, a99 working conditions are not a factor. 182 Once the identifiable and selected job content factors of know-how, problem-solving, and accountability are assigned to the work positions, they are then given their respective designations on the "Guide Chart." Next, the jobs are evaluated, and numerical values are then attached to their identifiable, compensable job factor elements. Following these steps, the evaluated jobs are compared with the Hay job "profiles." The bases for this aspect of the exercise is to check and compare the evaluated and assigned job point designations relative to the reassigned ones in the "Guide Chart." A comparison is then made of the distribution of points based on those in the "Guide Charts" with those suggested by the job profiles. These comparisons expose evaluation point assignment inconsistencies. Hay refers to this part of the process as "sore-thumbing."78 It is during the "sore-thumbing" process that the errors are both identified and corrected, and the job scores, the

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183 original or revised ones, are added up. Their totals yield a sum of the "Hay points" for each evaluated job. It is at this point in the process that the "benchmarks," or key jobs, become established. Once determined, the benchmark or key job positions become the foundation for fitting other jobs within the organization into the job evaluation scale. Beyond this phase, existing external pay rates are then plotted against the Hay points for the benchmark job and, this, in turn, makes for a "line-of-best-fit." Trieman further points out that Hay contends "that ordinarily. point distribution will show a linear relationship to salary levels and that non-linearities in the relationship signal problems in the pay structure. 1179 The Hay Method has been adopt-ed by pay equity enthusiasts as viable comparable worth job evaluation system because of the plan's heavy orientation towards the evaluation of executive and professional jobs.80 In this regard, the undervaluation and undercompensation of the employed woman's work and wages occur mostly in "white-collar" job sectors. -Nevertheless, it is important to note that comparable worth proponents looked favorably upon the Hay job evaluation system because its methodology sets aside

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184 the historical pay factors upon which jobs have long been evaluated. The Hay Method substitutes different pay factors that change the contextual basis for evaluating work positions and, hence, compensating them. Among its other successes, the Hay Method was used to evaluate the jobs and pay structure in the State of Idaho's executive government branch.8l Just how successful the Hay Method is and whether it accomplishes the feat of actually determining the comparable worth of dissimilar jODs remain very difficult measure. Nevertheless, the Hay Method does represent a distinct alternative to the traditional job assessment plans of ranking, classific.ation, and point method. One of the factors that makes the'Hay Method's effectiveness difficult to gauge is its methodology. It, too, attaches arbitrarily-assigned numerical values to the system's compensable factors factor weightings, profiles, and "Guide Charts." In this respect, relativeness permeates the process and, once again, there appears to be no identifiable absolute. Analysis supports the conventional wisdom that no job evaluation process is absolute in its term or applied methodologies. Further, its ultimate determinations do not establish concrete, empirical measurements in the

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185 scientific sense in terms of measuring the worth of jobs. Since it has" to be accepted that job evaluation methods and measurements are only relative in their stated outcomes, one must be satisfied with the creation and implementation of any improved job evaluation system that will not favor the male worker over the female worker, or vice-versa, in the job evaluation and pay assignment processes. According to pay equity supporters the comparable worth concept, and the impetus behind it, addresses these considerations. The Hay Method, however, is not withotit criticism. For one, Trieman" states that the Hay "Guide Charts" are oriented toward the method's major l 1 'd '1 82 c lente e, executlve an pro eSSlona organlza lons. This orientation may tend to distort the results gleaned from non-executives and non-professionals. Another criticism relates to the Hay Methods' leanings toward executives and professionals is that identified and selected compensable pay factors, factor weight, and "Guide Charts" may reflect bias because of these influences. Subjectivity is also identified as a shortcoming of the Hay Method. Doherty and Harriman state that "while these systems are obviously more objective than classification methods, the selection of compensable factors is clearly a subjective

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186 83 judgment." Triemanagrees-with Doherty and Harriman in this respect. He says that "the language used in the factor definitions emphasizes subjective judgments to an even greater degree than most job evaluation systems.,,84 In support of the Hay Method and its worth, Berg speaks to the plan's acceptance by both novice and bureaucratic work organizations because of its perceived objectivity. He states, "[i1t is well received by novice and bureaucratic organizations because it has a semblance of objectivity, but it nevertheless 'permits a great deal of subjectivity in its Job evaluation objectivity versus job evaluation subjectivity, and how much of either should be permissible parts. of the processes is a debatable issue as old as' job evaluation itself. Lois Friss comments that "at the technicai level, the issue is not objectivity versus subjectivity; the real issue is how to change existing subjectivity when it consistently favors one group without concert for representative ness.,,86 In light' of Friss' statement and despite criticisms and shortcomings of the Hay Method, perhaps it does represent a.step in the right direction by attacking the female worker's problems of occupational segregation, wage discrimination, and the

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187 undervaluation and tindercompensation of her work and wages. The second widely acclaimed and so-called "comparable worth" job evaluation method to receive popular acceptance among pay equity advocates is the one developed in the early 19709 by Norman D. Willis and Associates. Much like the Hay System, the willis job evaluation model incorporates features not included in the four traditional evaluation systems. In this respect, the Willis model is different from traditional techniques and the Hay Method. From a comparative viewpoint, the Hay Method is a derivation of the factor-comparison method and uses as its compensable factors kn6wledge, and accountability. The willis job evaluation model, on the other hand; is a hybrid of the point method plan and uses as its major compensable factor criteria the elements of 1) knowledge .and skills1 2) mental demands 1 3) accountabilitY1 and 4) working conditions. The four willis compensable job factors are further broken down into subfactors, as fOllows:87 Factor Knowledge and Skills Subfactor Job Knowledge Managerial Skills Interpersonal Communications Skills

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188 Mental Demands Latitude for Independent Judgment Nature and Extent of Problem Solving Accountability Freedom to Take Action Nature of Impact upon End Result Working Conditions Physical Effort Hazards Discomforts Working conditions are usually taken into consideration 88 for non-managerial jobs only. Under the willis job evaluation system, the compensable factors are assigned points or rating values, and they are predetermined. The jobs are then evaluated by a committee of people or a group of individuals who mayor may not be knowledgeable about the job evaluation process involved. "The evaluators, trained by Willis personnel, are oriented on how to properly evaluate the work positions and assign point values to the identifiable compensable job ,factor elements. Once the jobs have been evaluated and their point assignments made, the evaluated job scores are then compared with the ones predetermined by the Willis System. As a result of these comparisons, both evaluation inconsistencies and

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189 the biases are, identified and made known. The Willis Method has also been credited with' disclosing undervaluation and undercompensation in the application of traditional job evaluation processes. Moreover, the Willis Method played a key role in the first comparable worth job evaluation study conducted in the united States. The text of that study will be discussed at a later point. But, suffice it to say that through the use of the Willis job evaluation technique, the study's conclusion substantiated that, in an evaluation of a group of men's and women's jobs, the latter's work and wages were grossly undervalued and undercompensated even when it was demonstrated that some of the female work positions were equal in value to some of the positions worked by males. In conclusion, the Hay Method and the willis Method are the two most talked about job evaluation systems in the comparable worth literature. The latter gets more attention since it was involved in the first comparable worth study, nearly twelve years ago. In its determination that employed females were significantly underpaid relative to males, the Willis Job Evaluation Study gained monumental stature. And, since the Willis job study's findings were made public, both its popularity and controversial aspects have

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190 persisted. The Hay Method and the willis Method are two of the more notable job evaluation systems. More and more, these methods are being recognized as plans that would instill more equity into the job evaluation process for the purpose of arriving at comparable worth wage and salary determinations. The KSAR Method As an addition to these and other systems, this writer posits what is referred to as the "KSAR" comparable worth job evaluation system. Thismethod has both qualitative and quantitative features. The acronym "KSAR" stands for "knowledge," "skills," "ability," and "responsibility." These are considered to be the universal factors common to most, if not all, jobs. The KSAR job evaluation model is, in part, a qualitative one since its evaluative judgments determine what job attributes exist in work positions. It is also, in part, a quantitative method since arbitrary values, or job content points, have been assigned to its compensable factors. In the final outcome, the job value point scores directly translate into the dollar amount of the work positions' monetary worth. Another basic aspect of the KSAR Method is that wage and salary rationalization is predicated upon the

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191 principle of reasonable compensation. In this sense, the assumption is made that, based on the model's four elements upon which work positions will be judged for pay purposes, evaluation groups can accurately assess the requisite levels of knowledge, skills, ability, and responsibility, integral parts of the jobs' task and duties. In the KSAR Method, the four compensable elements are linked to job evaluation in following manner. First, almost all jobs require a certain level of worker knowledge in order to perform the work positions' assignments. Whether or nqt the requirement here is that of formal or informal knowledge, or of formal or informal training, jobs still require knowledge in order to be ably performed. In this respect, jobs can be evaluated in such a fashion that their formal levels of knowledge and training are identified and, hence, compensated. In of this contention, empirical studies have shown, and continue to show, what wage earners can expect to receive based both on the jobs in which they are employed and on their formal educational levels and training. Chapter II contained data of this nature. In terms of the KSAR Method of job evaluation, formal educational levels and other-specialized

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192 training can be tied to the requirements Of work positions, evaluated, and assigned that relevant portion of the job's wage and salary rates. The logic of what is being suggested here appears to be sound, though there are exceptions. People tend to become employed in jobs commensurate with their formal or informal knowledg' e or training, skIlls, ability, and A workforce member, say, who has only completed an elementary or secondary education will tend to seek ou t employment that closely matches, or in fact matches, his/her achievements. Some semi-skilled workers fit this description. On the other hand, 'workforce members who, have graduated from college and have either been exposed to or completed postgraduate academic work will seek,artd often obtain, higher-paying jobs. Typically, the jobs these individuals would likely obtain are professional. It is a widely accepted truth that there is a direct correlation between an individual's acquired level of formalized knowledge and other specialized training relative to the job he/she works. If one accepts this belief, then it logically follows that there should be little or no dispute about the role of the knowledge variable as it relates to paid work. In this context, relative to the KSAR Method ,and job evaluation (barring

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193 exceptional situations}, one would not anticipate that employers would compensate a work position requiring less education at a higher pay differential than one requiring a great deal of formal knowledge or specialized training. It seems the more education required of a job, the more wages it should pay. Then, if the knowledge requirements of j'obs can be identified and determined, they can be evaluated and assigned wages. The skills factor under the KSAR Method is also an identifiable element that can be evaluated and, consequently, compensated. In this sense, in terms of using skills as a pay factor, the KSAR Method'does the same thing the four traditional job evaluation methods do, incorporate skill as a compensable ingredient. Skill is defined as the mental, physical, and aptitude factors required of job tasks and duties. Skills may be specialized, generalized, or include other acquired levels of experience determined by the work positions to be important job requisites. Ability is the third compensable factor of the KSAR Method. It evaluates the capacity of the worker to accomplish the job's tasks and duties. Its overall measurement standards are effective outcomes. In turn, effective outcomes are measured in relation to the

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194 actual job results expected. In the past the concept ability as a job factor has had a disparate impact on employee job evaluations related to women and minority workers. However, the KSAR Method establishes ability as quantifiable, observable, measurable objective factors. The following list of characteristics shows how ability can be operationalized. The capacity of the worker to accomplish the job's tasks and duties depends on the abilities to: Create innovative systems based on unique ideas, Demonstrate productivity through contact with new people, Act where past policies and practices are not established, Function as a positive employee when upward mobility and advancement are not practical, promised, or predicted, Perform and maintain productivity when job, tasks and/or duties are not challenging, Convince others relative to one's own view point, Successfully conduct calculated risk tasks when controversy exists, Resolve conflict while maintaining a "win-win" position, Utilize the diverse styles of people in order to achieve maximum performance,

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195 'Incorporate changing trends into the work plan. The criteria for assessing ability is established through organizational goals and objectives on one hand and, on the other, desired outcomes related to the or9anizations' stated expectations. At any rate, in a generalized sense, jobs require ability. Though ability is subjective and hard to measure because of its qualitativeness, it nevertheless remains an essential part of almost all jobs. Responsibility is the fourth and final KSAR compensable factor. Similar to skills, responsibilit as an evaluative pay element does no more or no less than the four historical job assessment methods, or any other method, that uses it as' a job pay factor. Responsibility encompasses the aspects of work positions which are based on accountability and, moreover, on workers' answerability for their own conduct and obligations, and for those of their subordinates. From an occupational perspective, job responsibility covers a variety of things: accountability for in terms of being responsible for one's actions and inactions, the actions and inactions of subordinates, property, equipment, decisions, and so on. Again, it is necessary to reiterate that, as linked to the KSAR

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196 Methods responsibility as a pay factor does nothing uncharacteristic of other job assessment methodologies, traditional or otherwise. In summary, the KSAR Method looks at the compensable factors of knowledge, skill, ability, and responsibility. These elements are constituents parts of almost all jobs and, for this reason, the KSAR Method postulates that most jobs can be evaluated and assigned job wage and salary rates based on these four compensable job content criteria. Like most other quantitative job evaluation systems, the KSAR Method's compensable factors are assigned arbitrary values, or job point scores. In many respects, and at the risk of being redundant, this writer must note that the KSAR's quantitative aspects, in principle, do nothing out of the ordinary relative to other numerically-based evaluation plans in determining the relative worth of jobs. In this regard, KSAR is a hypothetical construct like other models. Under the method, each KSAR compensable factor is worth a total of 25,000 job value points. In other words, the grand point total o'f the four compensable factors--knowledge, skills, ability, and responsibility--equals 100,000. Job factor points are transferable. This is because at least three of the

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197 four compensable factors, knowledge, skills, and ability, are closely interwined. Arguably, what makes the three indistinguishable from one another is their interchangeable quality. For example, it seems logical and technically accurate to say that knowledge, whether generalized or specialized, goes hand-in-hand with skills and ability. Further, it also seems that the more knowledge one acquires, the more one's skill and ability attributes are enhanced. The bility the three affords the KSAR Method with the peeded flexibility for evaluators to adjust upwardly or downwardly for the predominance of, say, one, two, or possibly three of the four pay factors. Such adjustment, of course, is dictated by the job evaluation Based on the KSAR Method, also, each individual point translates into a standard of one dollar per unit. The total dollar job worth of the four pay factors amounts to $100,000.00. Operationally, let's assume that a trained committee of evaluators (ideally) determined that a high-level work position in a relatively large firm consisted of twenty-five percent knowledge, twenty-five percent skill, twenty-five percent ability, and twenty-five percent responsibility. Based on that determination, each

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198 respective attribute of the work position would be worth 25,000 points, for a sum total of 100,000 points. Converting the points into dollars, the 'job position would be worth $100,000.00. Alternatively, say, for example the evaluation committee determined that the job required higher degrees of knowledge and skills, the same evaluated degree of ability, and no responsibility (though this would be a highly irregular, the hypothetical illustration serves the purpose of satisfying the example). Continuing, the evaluation committee further determines that the higher degrees of knowledge and skill are relatively equal. Based on this determination, the evaluated job is then assigned 37,500 points for knowledge, 37,500 points. for skill, 25,000 points for ability, and 0 points for responsibility. The total points are still 100,000, and the job position is still worth $100,000.00. Though the two examples oversimplify the situation, they provide instances of the KSAR Method's operationalized job evaluation aspects and outcomes. Now that the stage has been set, a detailed description of the KSAR Method is appropriate. Step 1. The step of the KSAR comparable worth implementation method involves the review of job descriptions, to identify and establish the key or

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199 "benchmark" predominantly male and female work positions. Further, such a review also becomes a critical element in making the eventual comparison of dominant female-male job classifications, which will later be assessed .for their equal work value job content. During this phase, the work description of each job within the organization is reviewed. The process is further characterized by the classification and re-classification of both female and male jobs into major categories until all the work institution's jobs are classified. Step 2. The second step of the KSAR comparable worth job evaluation implementation model encompasses reviewing the wages and salaries of the job positions. In this respect, the compensation paid for each work position is attached to the job. Similarly, the attached paid wage and salary rates become defined and, likewise, associated with the identified and establrshed predominantly female and male work positions. Step 3. The implementation model's third step involves surveying the work organization's current wage and salary classification levels. Here, the idea is to ascertain where in the work entity's compensation structure the actual paid wage and salary rates fall

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200 relative to the classified, established worth of jobs. The most important facet of the wage and salary review operation is to establish and attach classified wages to predominantly female and male work positions and to assess the wages. Step 4. The first three steps of the equal work value evaluation implementation model are keenly essential to the fourth. That is, the job description review, the wage and salary review, and the job wage and salary classification review operations provide for the actual evaluation of the female and male work positions using the "KSAR" comparable worth assessment scheme. Job description review establishes the predominance of female and male key or "benchmark" jobs. Job wage and salary review establish what compensation the organization remunerates for the work. When combined with the review of job classifications, once wages and salaries are attached to the identified and established predominantly female and male jobs, the next step of the model is the actual "KSAR" comparable worth job evaluation. Step 5. The KSAR comparable worth job evaluation of the heavily-occupied female and male work classifications, basically, involves examining the job

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201 positions making up the work categories as well as their hierarchical and actual wage assignments. Among the most important ingredients of the process is the selection of an evaluation committee to evaluate the jobs and arrive at their equal work value. Evaluation committee members can "be selected from diverse backgrounds: trained personnel consultants or specialists, managers,supervisors, union employees or officials, business people, and the work entity's employees. Generally, it is recommended that personnel consultants or specialists select committee members to orient and train other committee members as to the KSAR comparable worth job evaluation task and its job wage and salary assignment processes. Committee members have to be trained to review the job descriptions, the wages and sal ar ies of female and male jobs, and the hierarchical and actual wage and salary levels of the male"and female work positions. Step 6. Once committee members become oriented and trained on the "basics" of what is required of KSAR job assessment processes and tasks, the identified and established key, or benchmark, female and male job positions can be evaluated. Having established the heavily-occupied female and male benchmark work classifications, the next step becomes the task of

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analyzing and evaluating the content of each job relative to the four KSAR compensable job factors and the key work positions. Simply, the purpose of this "preliminary" evaluation is to generate different assessment outcomes in evaluating the female and male jobs using the KSAR compensable factors of knowledge, skills, ability, and responsibility. 202 The "preliminary" evaluation review of the jobs using the KSAR pay factors provides an important link to the equal pay for equal work value implementation model. This is the identification of alleged, and more importantly, actual, sex and pay disparities among and between the predominately male and female work positions. The significant objective of this part of the task, further, is to identify both appears to be, or actually are, disparate job elements or facets in the work female and male job families. In this manner, members of the KSAR comparable worth job evaluation committee conduct an in-depth review of the work positions' job content. At this point, it is quite likely that sex and pay biases are detected and screened. In addition, assuming the work organization applies and uses historicallyoriented male job factors in evaluating predominately. female job classes, it is also likely that disparities

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showing the undervaluation and undercompensation of the employed woman's work and wages may be exposed. Identifying alleged or actual disparate job elements among and between predominately male and female jobs is very basic to the KSAR comparable worth job evaluation model. Identified job evaluation sex and pay disparities have to be documented. In this regard, their formal documentation is very critical to their ultimate The ultimate disp6sition of unequal pay situations between comparable female and male job classes is the pay equity increase. For this reason, discriminatory pay and sex biases must be formally documented so they can be corrected and resolved. During this aspect of the KSAR assessment process, all alleged or actual sex-based pay and job-related deficiencies must be recorded as matters to be dealt with in the following step. Step 7. The seventh step of the KSAR comparable worth job evaluation implementation model centers upon the detailed resolution involved in reaching accord on the alleged-or actual identified and documented job disparities. Such an examination includes achieving resolution and accord on which of the identified and documented job sex and pay disparities are real, and which ones are not.

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204 This part of the process is intricate. The KSAR evaluation committee is required to make difficult judgments about each alleged or actual job disparity formalized to that point. Moreover, the intricacy of the process extends to reaching resolution and accord as to what constitutes proven female, employment wage and salary discrimination and what does not. The foundations for proving this are predicated on the use of evaluating the jobs .relative to the KSAR compensable factors and the evaluation results. Once the above stated concerns are tested and alleged' and actual job sex and pay disparities are accorded, the next task of the KSAR evaluation committee is to assign KSAR "points" to the agreed upon,. predominantly female and male benchmark work classifications. Then, the balance of the organization's jobs are assigned KSAR points and, hence, fitted into the evaluated predominant male and female key classes. When this part of the evaluation operation is consummated, job sex and pay disparities become known. They are substantiated in terms of, particularly, jobs employing females being ascribed more KSAR "points" than the positions rated prior to the application and evaluation of the female and male jobs using the KSAR compensable factors.

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205 Step 8. The next task of the KSAR evaluation committee is to examine the wage and salary considerations relative to the establishment and correction of proven and agreed upon female sex-based pay discrimination. The foundation for this step is made possible by the previous KSAR operations. The job of endeavoring to correct supported job assessment and pay biases, as a result of the KSAR evaluation, becomes the central thrust of the KSAR evaluation -method. Since the KSAR comparable worth job evaluation scheme lends itself to being, in part, a quantitative one, the points or job worth points of the newly evaluated female and male jobs are automatically established. In this respect, too, the relative worth of the work positions is determined relative to one another and within the work establishment's job hierarchy. Step 9. The extent of what is warranted in terms of any comparable worth wage adjustment, in terms of correcting the undervaluation and undercompensation of the evaluated female jobs, is solely determinable by the magnitude of the differences in the proven female and male compensation disparities. The KSAR committee is likewise charged with the responsibility for reconciling each adjudged pay discrepancy. In addition, it is also responsible for pay equity

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206 recommendations specifically aimed at correcting female sex-based pay disparities. In terms of the time required to correct proven sex-based pay disparities, the evaluation committee is also responsible for making recommendations regarding in fulfilling their mission of,comparable worth, or of the equal pay for equal work, implementation. The source, as well as the availability of comparable worth funds, is a matter solely to be determined by public, private or non-profit employers. Generally, in public sector employment, most, if not all, monies come from public treasuries. In this respect, allowable comparable worth pay adjustment dollars must be appropriated by state or local law. In the private and non-profit employment sectors, typically, allowances for comparable worth pay funds and disbursements come from profits or other income sources. Implementing the granted comparable worth pay increase depends upon the program's established aim or goal. Time and the available monetary resources two important elements that bear substantially on the comparable worth aim or goal, relative to both its implementation and effectiveness. As to the technical features of comparable worth pay increases, the upward wage and salary rate adjustments may be disbursed on a

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207 hourly, weekly, or monthly basis. Despite the manner in which the comparable worth pay increase is allotted, timetables play an important role in the goal of achieving pay equi ty levels among and between employed females and males performing work of equal value. Step 10. The tenth step of an implemented KSAR comparable worth job evaluation program is structured on its ongoing monitoring and review. The chief purpose here is to prevent the recurrence of disparate job factors in the evaluation of female and male-dominated jobs. In many respects, the disparate job factors are systemic. Studies have shown that they do impact the employed woman's job and cause her work and wages to be both undervalued and undercompensated. In preventing the recurrence of suspect evaluation factors from playing a role in the assessment process, once the comparable worth program has been implemented, public, private, and non-profit employers can perform program management audits. Such audits are designed and intended to review the procedures governing the program. These audits can be conducted bi-annual1y or annually. Management audits can also serve to detect the recurrence of illicit job factor criteria, which are likely to resurface again in evaluation processes and procedures In this respect, such undesirable attributes can be screened and dealt with before their

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208 negative aspects become reinstitutionalized in empioyment practices and compensation systems. Another important facet of the management audit is to provide administrators and managers of public, private, and non-profit enterprises with program feedback. Step 11. Feedback is the eleventh ingredient of the KSAR comparable worth job evaluation program. It is a mandatory design feature of the KSAR system that feedback be elicited about program success or failure. The feedback mechanism administrative and managerial uni ts "of work organizations wi th both formal and informal reports about the program's status and worth, among other things. Public, private, and non-profit administrators-and managers can use the information" derived from formal reports as a basis fo"r organizational review and follow-up. Lastly, another important feature of program feedback includes the comparable worth job re-evaluation of predominately female and predominantly male jobs, and of their respective work classifications, at least once every five years. In this re"spect, the comparable worth job evaluation program becomes both institutionalized and ingrained into work systems and their associated compensation plans. The significance of this is that, as an integral aspect of systemized employment systems, an operative comparable worth program acts as an

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ongoing mechanism to help eradicate all facets of employment discrimination, and especially. female, sex-based pay discrimination. At the bare minimum, such employment job-related disparities are circumvented as a result of an effective comparable worth job evaluation policy and program. 209 The KSAR comparable worth job evaluation model can be practically implemented. The model consists of eleven features. Its steps, processes, and procedures are designed to identify and correct sex and pay disparities among and between employed females and males who work in sex-biased job classifications. Females' work and wages usually have been shown to be undervalued and undercompensated because employers use male-oriented job content factors to evaluate female jobs. In this respect, the KSAR comparable worth job evaluation model is offered as an improvement over traditional job assessment processes. More importantly, however, the KSAR job evaluation method objectively evaluates the equal work value of male and female work. Figure 3, "Job Evaluation Methods and Compensable Factors," compares KSAR factors to traditional job evaluation ones. Figure 4 presents the KSAR comparable worth implementation model.

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JOB EVALUATION METHODS AND COMPENSABLE FACTORS CLASSIFICATION FACTOR COMPARISON HAY METHOD KSAR METHOD POINT HETHOD Skill Effort Accountability Ability Effort Responsibility Know-bow Knowledge Responsibility SkU I Problem-solving Responsibility SkU 1 Working Conditions Working Conditions SkUl Working Conditions RANKING WILLIS METHOD Job Difflculty Accountability Job ImportaDce Knowledga Hental Demanda Skills G) c: w IV ..... o

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COMPARABLE WORTH IMPLEMENTATION MODEL JOB DESCRIPTION REVIEY OF MALE/FEMALE JOB WAGE AND SALARY >1 KEY OR "BENCHMARK" MALE WORK POSITION CLASSIFICATIONS REV lEV AND FEMALE WORK POSITIONS WAGE AND SALARY REVIEW DOCUMENTATION OF ALLEGED IDENTIFICATION OFALLEGED "KSAR" C/W JOB EVALUATION SEX AND PAY DISPARITIES SEX AND PAY DISPARITIES REVIEW OF PREDOMINATELY AMONG AND BETWEEN HALE AMONG AND BETWEEN HALE MALE AND FEMALE WORK AND FEMALE WORK POSITIONS AND FEMALE WORK POSITIONS POSITIONS G) RESOLUTION & ACCORD OF IDENTIWAGE & SALARY CONSIDERATIONS J FlED & DOCUHENTED JOB WAGE & RELATIVE TO THE ESTABLISHMENT IMPLEMENTING THE SALARY DISCREPANCIES AMONG & & CORRECTION OF THE PROVEN & PAY-INCREASE BETWEEN PREDOMINATELY EVALUAGREED UPON FEMALE SEX-BASED ATED MALE/FEMALE WORK PAY DISCRIMINATION POSITIONS '-J FEEDBACK:----I IONGOING MONITORING/REVIEY-OF THE IMPLEMENTED e/w PROGRAM & ADMINISTRATIVE/MANAGEMENT OF THE RECURRENCE OF DISPARATE REPORTING JOB FACTORS WHICH ARE LIKELY REVIEIl TO REAPPEAR IN MALE/FEMALE FOLLOW-UP DOMINATED WORK POSITIONS tv ......

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212 KSAR Justification. To .date, relatively few innovative comparable worth job evaluation research studies have gained wide acceptance by' public, private, and non-profit employers as operationally sound methods for determining the equal worth of female and male jobs. Despite this fact, both employers and personnel specialists agree that traditional job evaluation methods and the means by which pay is determined should provide a better assessment of job worth. However, they do not. Historically, traditional job evaluation methods and their techniques of establishing pay have been both prone to using male-oriented job content factors in evaluating female jobs and, also, systemic evaluation biases. Each affects pay determinations.' In terms of the effects that systemic evaluation biases have on work position assessment and, ultimately, pay determinations, Grams and SGhwab investigated whether systematic gender-related error was an operative element in the evaluation of female and male work positions. The chief aim of the research was to ascertain whether job evaluation maybe a source of evaluation error. Evaluation error was judged by the researchers as a likely agent which would influence the earning level differentials in predominantly female and male work positions. Grams and Schwab examined two

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213 female and male work positions, and assessed two potential sources of error--direct and indirect bias. Each was regarded as a potential affect on job evaluation outcomes if one or the other weighed heavily b 89 on JO assessment processes. The researchers' study pointed to two important findings. First, no evidence was disclosed which indicated that direct bias was a major source of error in the evaluation of the predominantly female and male job position. Second, inditect bias was identified as a potential of evaluation error as a result of the selection of gender-related job content factors. In the study, the selected job factor of work -"complexity" was found to be associated with gender-related factors.90 Hence, the study's second finding tends to support the notion that both the selection and use of traditionally male-oriented, gender-related, job factors in evaluating female-occupied work classifications may potentially become a major source of job.assessment error and, moreover, can negatively impact the employed woman's work and paid wages. In another sense, the study's second finding also seems to substantiate the claims of comparable worth proponents in that job factor selection and weighting biases historically favor men's

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214 work over women's. Hence, to a great extent, evaluation errors of this sort are responsible for the undervaluation and undercompensation of the working female's work and wages. The KSAR comparable worth job evaluation model is posited as an addition to the few innovative schemes for determining the equal work value of female and male jobs. How does the KSAR Method compare with traditional point-factor plans? Examining the shortcomings of point-factor job evaluation systems, Edward E. Lawler III identifies and discusses essentially eleven pitfalls of the method in its use by modern work organization. In his article, "What's Wrong Wi th Point Factor Job Evaluation," Lawler bases his attack upon the contention that traditional evaluation methods such as the point-factor system have outserved their usefulness in that "they do not fit the way organizations must be managed to survive the world economy of the 1980s and 1990s.,,9l According to Lawler: [O]ld management is too bureaucratic, too rigid; and it doesn't [sic] use people enough to be competitive. What's [sic] needed is a management approach under which people will do what is right, develop and use new skills, focus on customer/client relationships, and generally be in the bus iness of what they are a part.

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215 Though Lawler recognizes that it is perhaps too soon to identify all the specific components and practices associated with the new management approach, he nevertheless states that "It is not too soon to say that point-factor job evaluation is inconsistent with the new sty1e."93 Pethaps it is, short of abandoning the traditional point-factor job evaluation system altogether, the KSAR point-monetary-factor assessment method may hail as a substantial approach. Prior to discussing how the KSAR job evaluation method may accomplish this, an examination of what Lawler identifies as being "wrong" with point-factor job evaluation systems is in order. First, since almost all jobs rated for pay purposes are structured upon job descriptions, the writer deems the job description as being too rigid, in that it discloses what is not included. in the position's job duties and responsibilities. In this sense, individuals become unproductive and lack the necessary worker creativity to excel beyond job tasks and responsibilities merely because these things are "not in the job description." Worker inactions of this type spell productivity costs for employee organizations as a result of organizational non-performance.

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Second, Lawler says that point-factor job evaluation systems are flawed because they reinforce organizational hierarchies. Work organizations are dependent upon a "well-reinforced hierarchy for its effectiveness." In this respect, significant points are usually ascribed to the positions' job content factors relative to their level of responsibility and b I' h' 94 num er 0 reportlng re atlons lpS. The danger in this, says Lawler, is that "job evaluation can create and undesirable pecking orders and power relationships." Lawler further states: the key to success often involves utilizing the technical knowledge and comes from"the bottom of the organl zatlon. 216 Value orientation is the third pitfall Lawler adjudges to be characteristic of job evaluation point-factor plans. Relative to this attribute, he asserts that, since job-evaluation approaches are based on the notion that people are worth what they do, "in many cases, this may not be the most desirable cultural value for an organization".96 It tends to depersonalize people by equating them with a set of duties rather than concentrating on whom they are and what they can do. It tends to de-emphasize paying people for skills and for their performance ...

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217 Point-factor job evaluation systems are too narrowly internally focused. The emphasis, instead, should be placed on the jobs' external features vis-a-vis their competitive aspects. Lawler regards point-factor job evaluation as focusing too heavily on the work organization's internal pay relationships and not on those occurring externally within a competitive environment. The effect this has on organizations is that workers tends to focus on the internal remuneration received by other employees and, at that point, individuals become only concerned with how their relative compensation can be enhanced. Lawler states that the fifth shortfall of point-factor job evaluation is that it falls substantially short of meeting what he refers to as strategic orientation. Strategic orientation consists of those factors that work organizations can call upon to help reinforce or strengthen organizational excellence in a given area or function. For example, pay can be a strategic factor in affording an employer a competitive advantage over arrother. A company in compensation businesses. of aligning competitors more on the several businesses can target levels and practices to those This has the potential advantage costs more closely with those of and tOgGocus competItIve envIronment.

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218 Lawler sees the traditional point-factor job evaluation plan as a hindrance to strategic compensation management "because it encourages internal equity rather than external business equity and strategic advantage thinking." And, most importantly, Lawler asserts: Obviously, this can be overcome if organizations are willing to translate. the same [point-factor job evaluation] points into different dollar amounts for different businesses or functional areas, bug9this is often politically difficult to do. In this regard, the KSAR comparable worth job evaluation method attempts to build a higher degree of equity into the work organization's internal pay relationships, since the issue of the employed woman's pay devaluation emanates from the lack of equity inherent in internal ones. Lawler identifies the sixth shortcoming of the point-method approach as its tendency to limit organizational change. In terms of organizational survival, institutions must adapt to change. In this respect, organizational change .requires an over-abundance of adaptability, flexibility, and reorganization. The public, private, and non-profit work entity exist in a world of constant transformation and transition. In light of such global change, Lawler

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219 regard the organizational processes of writing and rewriting jobs descriptions as a workload factor of the point-factor system that could potentially impede ongoing change. Says Lawler: Perhaps the major job evaluation factor inhibiting change is its potential effect on the relative pay of individuals to give up resp0nsibilities and accountabilities while others gain them. If the point-factor approach is in operation, change means that some people win in terms of increased pay and others lose. This sets up competition among individuals, and often a strong resistance to much needed change. In short, point-factor systems often end up as servants of this status quo rarBor than as stimulants for needed-change "Point grabbing" is the seventh drawback of pOint-factor job evaluation systems. According to Lawler, point-grabbing becom.es a learned, sophi sticated scheme individuals evaluating jobs either overvaluate or undervaluate them. He states: After organizations have point-factor methods for a while, individuals become quite sophisticated in getting jobs evaluated highly. They realized that creatively written job descriptions can leralto pay increases, as can changed job duties. Typically, however, relative to the comparable worth concern, and the point-factor job evaluation system, employed women have not been beneficiaries of jobs rated "highly" for pay. purposes.

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220 The next pitfall of point-factor job evaluation is that "inflated" job descriptions undermine organizational honesty and the credibility of job assessment systems. That is to say, Lawler regards point-factor systems as both encouraging and rewarding dishonesty. He says that it is too easy to "beat the job evaluation system," and goes on to describe the practice as "point inflation.,,102 The ninth disadvantage of point-factor job evaluation, like most evaluation plans, is that they are expensive and, in some instances, excessively costly to administer. In this sense, the plans usually require administrators to have an internal staff, or staffs, and the assistance of outside personnel consultants. This simply means, as Lawler states, job evaluation is a tremendous producer of records, numbers, and bureaucratic o'verhead .103 The tenth drawback of point-factor evaluation parallels the second in that it "strongly reinforces the idea of a management hierarchy.,,104 As mentioned previously, the second drawback reinforced or strengthened organizational hierarchies. Lawler states: Virtually every point-factor system creates an internal wage structure in which promotion is the major way to increase compensation.

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Promotion is the surest way to inI-OSase one's points-and, therefore, one's pay. 221 Lawler goes on to point out that the situation takes on a different context with respect to "knowledge work" and "high-technology work": To be successful in these situations, many organizations need individuals with technical excellence as well as individuals who prefer to make horizontal career moves in order to develop a broad-based understanding of the organization. The technical specialist's career role and the horizontal career orientation clearly are not reinforced by the typical point-factor approach. Instead, individuals choosing these careers can look forward to static--and potentially even declining--compensation if -their organizations use a point-factor approach. One additional note is relevant here: As organizations become flatter and leaner, there is less opportunity to move up the hierarchy. This raises further questions about the desirability of a pay system that strongly rewards people for upward mobility. If upward mobility is going to be less available, perhaps it is not motivate people to try to achIeve It. Lastly, Lawler says that the eleventh drawback of the point-factor system is that inherent in it is the notion that organizational promotions are accompanied by significant wage and salary increases. He says: This is not because a person is necessarily more valuable or skilled or has accomplished anything worthwhile, but rather because the person job responsIbIlItIes.

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222 In this respect, job incumbents mayor may not accept promotions on the basis of whether there are increases or no changes in job factor points associated with the moves. In Lawler's opinion, the psychology of pay increase promotion makes for a .significant number of employees who spend large amounts of time concerned about promotions, rather than how well they are performing in their current jobs. In sum, Lawler posits what he considers to be two viable alternatives to the point-factor job evaluation approach. he recognizes that one possibility is a job-based approach, one that takes all, or mostly all, of the jobs to the external labor market individually. In this manner, according to Lawler, more emphasis is placed on external job pricing and on the reliance of wage and salary surveys. Lawler's second alternative to the abandonment of point-factor job evaluation systems is that work organizations can adopt "skilled-based" pay ones. Skill-oriented pay systems are just that. Remuneration for hired work is compensated on the basis of the skill job content factor. Lawler notes that skilled-based pay systems are achieving popularity for production jobs. He further observes that it has been practiced to some extent for "technical" and "knowledge-work"

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223 people. Perhaps, in buttressing the adoption, expansion, and implementation of skilled-based pay systems in public, private and nonprofit employment, the KSAR comparable worth job evaluation methods holds promise. In terms of its promise, the KSAR job evaluation method potentially hails as a viable alternative to, or a substantive improvement over, point-factor job evaluation systems. Lawler discusses several concerns with point-factor plans that promote the viability of the KSAR job evaluation method: value orientation, point grabbing, and honesty/credibility. Point-factor plans, like job evaluation itself" is value-oriented. Hence, values do become an integral part of the process and, therefore, can and do make for overvalued or undervalued pay situations as a result of what Lawler refers to as "point inflation." Conversely, the term "point deflation" results in devalued and depressed pay situations. As Lawler so aptly notes, "point grabbing" results from jobs being overvalued as a consequence of being rated more highly in well-established and functional point-factor assessment systems. In this sense, these practices have become deeply institutionalized in their methods, applications, and

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practices. Typically, predominantly female jobs have not been the subject of "point grabbing" schemes since males occupy the organization's higher hierarchical work pos-i tions and are pa id more. The application of point-factor job evaluatiori techniques relative to their honesty and credibility in job pricing are factors which, in all likelihood, have been responsible for the undervaluation and undercompensation of the employed woman's work and wages. Although Lawler does not offer any hard evidence to support his claim that "there is a real danger that point-factor systems can encourage and reward dishonesty,"I08 intentionally or again paraphrasing Lawler, the point-factor job evaluation system has been "beaten," as made apparent by the fact that predominantly male jobs, historically, have been paid significantly higher wageS than predominantly female ones. From a realistic viewpoint, it seems that to recognize the contrary would suggest naivete on one's part. To sum up, though the extent to which value orientation, ""point grabbing," dishonesty and the lack of have been responsible for the undercompensation of the female worker remains speculative, few, if any, would argue that they have not played

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225 rolea in job evaluation pay processes. Lawler contends that point-factor job evaluation systems favor the strengthening of the organization's internal pay relationship over external ones. Though this may be the case, it appears that, on the whole, work organizations have devalued the pay of women's work and, on the contrary, rewarded men's work by paying them significantly higher wages, resulting from both relationships. Where does the KSAR comparable worth job evaluation method fit into the scheme of things relative to the deficient aspects of point-factor evaluation systems? First, applied correctly, KSAR builds increased equity and integrity into the internal pay relationships of work organizations. It accomplishes this by objectively and unbiasedly establishing the job worth of male and female work positions. Perhaps, .the most substantive advantage of the KSAR job evaluation systems over point-factor job evaluation plans is that it evaluates predominantly female jobs on the basis of job content factors that are both neutral and sexless. These are the job content criteria of knowledge, skills, ability, and responsibility. What makes this important in light of what Lawler says about pay based on skill-oriented

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226 compensation systems? The KSAR job evaluation method not only includes the job content factor of skill as one of its compensable elements, but it alSo includes the ones of knowledge, ability, and responsibility. Whether traditional job evaluation plans compensate one element or a combination of the four elements, all are characteristic of almost every job. Another advantage of the KSAR point-monetary job evaluation system is that each job factor point translates into a one-dollar unit. Such translation becomes important in that, c0ntrary to traditional point-factor job evaluation plans, the KSAR method requires no separate systems ascribing jQb content value points and job pricing dollars. Job content value point assignment is correlative to the monetary worth of the work position in the KSAR Method. This becomes significant because economy is built into the KSAR job program. Unlike traditional job evaluation methods, point-factor included, this economical feature of the KSAR job evaluation system minimizes costs to work establishments. As Lawler pointed out, the ongoing administration of job evaluation and reevaluation programs is expensive to work organizations. In this respect, administrative costs and other residual ones need to be minimized.

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The KSAR comparable worth job evaluation method attempts to achieve such cost minimization. 227 Finally, in all probability, there appears to be a strong nexus between the equity inherent in the KSAR job evaluation method and organizational efficiency and productivity. People produce--and produce efficiently--when they perceive themselves as equitably compensated. Underpaid working women are no different. From a practical perspective, an employed woman who is formally trained a nurse can easily understand that the relative comparable worth value of her job is at least equal to, or greater than, that of a tree trimmer. However, since female-dominated work has been evaluated and priced on male job content factors, by and large, "a male-dominated society values men's knowledge, ability, skills, and responsibilities over women's. The KSAR comparable worth job evaluation method attempts to correct this situation and, above all, restore equity and integrity into job evaluation processes and outcomes. It seems true that, when employed women are denied equitable compensation for the relative comparable worth of the jobs they perform, their economic losses are short-term; however, in the long-term public, private, and non-profit work organizations are the real losers.

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228 The KSAR Method is presented as an alteinative system to current job evaluation procedures and practices because it, too, removes from its wage determination technique the historical compensable factors of effort and working conditions. In doing this, the KSAR Method's major objectlve is to instill a greater of equity in the evaluation process and in the assignment of wage and salary rates to predominantly male and female job positions. It accomplishes this through an evaluation system in which the job con ten t of work posi tions is based on the application of the neutral and non-biased pay factors of knowledge, skills, abilIty and responsibility. These are the evaluated elements deemed essential to work positions and their determined job performance. The selection of these four factors precludes the use of historical male-oriented ones in evaluating predominately female job classes. Like other job evaluation plans emerging as means of improving and objectifying the job assessment process, the KSAR Method may not be the total solution to the problem, but it can be credi ted with 9-ligning itself more with the problem's solution than with the criticism of tradi tional job / evaluation systems.

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229 In paraphrasing Lois Friss, in the final analysis, the results are more important than the means in overcoming employment sex segregation and female wage discrimination. Unquestionably, among the major results that can be achieved in this regard is the eradication of job evaluation criteria and other bias-based factors that have traditionally operated to undervalue and undercompensate the employed woman's work and wages. The effectiveness of the results stemming from the application of comparable worth job evaluation plans will depend upon how well they are received and whether their techniques are both. technically and operationally sound. So always, the elements of time, tests, and will attest to the success and overall utility-of comparable worth methods. Emerging comparable worth job evaluation schemes will serve as catalysts for change in the workplace. Employed women will constantly demand that employers try these methods as long as the perceived employment disparities of undervaluation and undercompensation exist. In another vein, it is also quite possible that some of the proposed equal work value plans will vanish if they are too complicated, too time-consuming in

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their applied methodologies, too expensive, and or simply technically and operationally impractical. 230 This chapter has examined job evaluation and its role in the comparable worth controversy. The issues of job evaluation and its applied methodologies have also been the subjects of legal disputes relative to the employment laws that govern their practices. The lawful aspects of job evaluation as they relate to the comparable worth concern are matters taken up in' the following chapter.

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NOTES CHAPTER III lRobert J. McCarthy and John A. Buck, "The Meaning of Job Evaluation" in Harold Suskin, ed., Job Evaluation and Pay Administration in the Public SectOr (Chicago, International Personnel Management Association, 1977), p. 12. 2David W. Belcher, Compensation Administration (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1974), pp. 91-92. 3Donald P. Schwab, "Job Evaluation and Pay Concepts .and Practices," in E. R. ed., Comparable Worth: Issues and Al ternati ves (Washi'ngton, D. C. : Equal Employment Advisory Council, 1980), pp. 56-58. 4InterriationalLabor Organization, "Job Evaluation, Studies and Reports," New Series, No. 56 (Geneva, 1960). 5 E R. Livernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council, 1980), p. 10. 6Robert E. Sibson, Compensation:. A Complete Revision of Wages and Salaries (New York: Amacom, 1974), p. 36. 7"The Mean ing of Job Evaluation" in Job Evaluation and Pay Administration in the PubIlc Sector (Chicago, International Personnel Management Association, 1977), p. 16. 8David W. Belcher, Compensation Administration (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1974), p. 85. 9Ibid., p. 88. 10GeorgeT. Milkovich, "The Emerging Debate" in Comparable Worth: Issues and Answers (Washington, D.C.: Equal Employment Advisory Council, 1980), p. 28.

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232 11 Donald P. Schwab, "Job Evaluation and Pay Setting: and Practices, in E. R. Livernash, ed., Comparable Worth: Issues and (Washington, D.C.: Equal Employment Advisory Council, 1980) ,po 52. l2G H. Hildebrand, "The Market Systems," in E. R. Livernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council, 1980), p. 88. 13 Robert E. Sibson, Compensation: Revision of Wages and Salaries (New York: 1974),p.37. 14 bOd p. 88. A Complete Amacom 15 .. Donald P. Schwab, "Job Evaluation and Pay Setting: Concepts "and Practices," Ope cit., in E. R. Li vernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council1980), p. 57. 16Helen Remick, "The Comparable Worth Controversy," Public Personnel Management Journal, vol. 10, no. 4, wi n te r 1981, p. 375. 17Herbert L. Northrup, "Wage Setting and Collective Bargaining," in E. R. ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council, 1980), p. 109. 18Ibid., p. 132. 19David W. Belcher, Compensation Administration (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 197:4), p. 91. 2022 403 (1883). 21The United States Civil Service Commission was replaced the Office of Persorinel Management (OPM) when Congress enac ted the Civil Serv ice Re form Act of 1978, Reorganization Plan No.2, 92 Stat. 1191 (1978). 2242 Stat. 1488 (1923).

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23see, Merrill R. Wage Scales and Job Evaluation (New York: Ronald Press Co., 1926). 24 E R. Li vernash, ed.., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council, 1980), p. 10. 233 25H L Northrup, "Wage Setting and Collective Bargain ing ,". in E. R. Li vernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council, 1980), p. IIi. 26Executive Order No. 9017 (January 1942). 27Quoted in Joy Ann Grune, Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 97. 28 E R. Livernash, ed., Comparable Worth: Issues and Alternatlves (Washington, D.C.: Equal Employment Advisory Council, 1980), p. 18. 29H L. Northrup, "Wage Setting and Collective Bargaining." in E. R. Livernash, ed., Comparable Worth: Issues and Alternatives-(Washington, D.C.: Equal Employment Advisory Council, 1980), p. 111. 3l;bid., p. 114. 31Ibid., pp. 114-115. 32The Termination Report of the National War Labor Board (Washington, 'D.C.: Government Printing Office, 1946), vol. 1, pp. 252-253. -33H L. Northrup, "Wage Setting and Collective Bargaining." in E. R. ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory Council, 1980), p. -116. 34Ibid., pp. 111-112. 35 Ib id ., p. 116. 36 DavidW. Belcher, Compensation Administration (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1974), p. 92.

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37Robert E. Sibson, A Complete Revision of Wages and 'Salaries (New York: Amacom, 1974), p. 38. 38 b'd II., p. 39. 234 390avid W. Belcher, Compensation Administration (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1974), p. 149. 40 b'd 150 II., 41Robert E. Sibson, Compensation: A complete Revision of Wages and Salaries (New York: Amacom, 1974), p. 40. 420avid W. Belcher, Com;eensation Administration (Englewood Cliffs, N.J.: PrentIce-Hall, Inc., 1974), p. 150. 43Ibid., p. 155. See also, Eugene J. Benge, Samuel H.Burk, and Edward N Hay, Manual of Job Evaluation (New York: Harper Brothers, 1941). 44 Ibid., p. 155. 45 b S' b 1 Roert E. son, ompensatlon: A omp ete Revision of Wages and Salaries (New York: Amacom, 1974), p. 41-42. 46Ib id ., p. 42. 47 Ib id. 48Ibid 490avid W. Belcher, Compensation Administra,tion (Englewood Cliffs, N.J.: Prentice-Hall, Ihc., 1974), p. 156-157. 50Ibid 51 b S'b C 1 t Ro ert E. son, omrensatlon: A omp e e Revision of Wages and Salaries New York: Amacom, 1974), p. 40. 52Ibid 53Ibid

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235 54Ibid 55D 'd aVl (Englewood Cliffs, p. 174. Belcher, Compensation Administration N.J.: Prentice-Hall, Inc., 1974), 56Ibid 57Robert E. Sibson, Compensation: A Complete Revision of Wages and Salaries (New York: Amacom, 1974), p. 41. 58 Ibid., p. 44. 59Ibid 60 Donald P. Schwab, "Job Evaluation and Pay Setting: Concepts and Practices," in E. R. Livernash, ed., Comparable Worth: Issues and Alternatives ('washington, D.C.: Equal Employment Advisory Council, 1980), p. 68. 6l"Red circled" job positions are non-key ones that cannot be linked to key jobs for evaluation and pay purposes:because they lack established work content standardi za tion.; 62 G. Hildebrand, "The Market System," in E. R. Livernash. ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Advisory C6uncil), p. 91. 63Donald Trieman, "Selections from Job Evaluation: An Analytic Review," in J. A. Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 101. 64Ibid., p. 102. 65 Ib id ., p. 102. 66Helen is a chief advocate of this position. For example see, "The Comparable Worth Controversy," Public Personnel Management Journal, vol. 10, no. 4, Winter 1981, pp. 371-832. 67 b'd 376 p.

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236 68 H L. Northrup, "Wage Setting and Collective Barga in i ng ," "in E. R. Li vernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal" Employment Advisory Council), pp. 126-127. 69Ibid., p. 126. 70 Ib id., p. 127. 71 Donald J. Trieman, "Job Evaluation: An Analytical Review," Interim Report to the Equal Employment Opportunity Commission (Washington, D.C.: National A6ademy of Sciences, 1979), p. 35. 72 I bid., pp. 1 30 54. 73Ibid., pp. 54-56. 74Doriald Trieman, "Selections from Job Evaluation: An Analytic Review," in'J. A. Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 103. 75Ibid., pp. 103-105. See also, Eugene J. Benge, Samuel L. H. Burk, and Edward N. Hay, Manual of Job Evaluation (New" York: Harper -Brothers, 1941). 76 Ib id.., p. 104. 77Ibid 78Ibid 79Ibid., p. 105. 80Ibid 81Ibid., and p. 133. 82Ibid., p. 105. 83 Mary Helen Doherty and Ann Harriman, "Comparable Worth:" The Equal Employment Issue of the 1980s, Review of Public Personnel Administration, vol. 1, no. 3, Summer 1981, p. 26. 84Donald Trieman, "Selections from Job Evaluation; An Analytic Review," in J. A. Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 105.

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237 85 ( -k J G. Berg, Compensatlon New Yor : Amacom, 1976), at p. 115, ln Mary Helen Doherty and Ann Harriman, "Comparable Worth: The Equal Employment Issue of the 1980s," Review of Public Personnel Administration, vol. 1, no. 3, Summer 1981, p. 26. 86Lois Friss, "Equal Pay for Comparable Work: Stimulus for Civil Service Reform," Review of Public Personnel Administration, vol. 2, no. 3, Summer 1982, p. 45. 87Donald Trieman, "Selections from Job Evaluation: An Analytical Review," in J. A. Grune., ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 106. 88Ibid 89Robert Grams and Donald P. Schwab, "An Investigation 'of Systematic Gender-Related Error in Job Evaluation," Academy of Managemen tJournal, vol. 28, no 2, 1 9 8 5 p 2 8 0 90Ibid., p. 287. 91Edward E. Lawler III, "What's Wrong Point Factor Job Evaluation? Management Review, November, 1986, p. 44. 92Ibid Ibid., pp. 44-45. 94Ibid., p. 46. 95Ibid 96Ibid 97Ibid 98Ibid 99Ibid 100Ibid., pp. 46-47. 1 01Ib id.

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102Ibid 103Ibid 104Ibid 105Ibid 106Ibid 107 Ib id. 108Ibid 238

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CHAPTER IV COMPARABLE WORTH: A LEGAL FRAMEWORK ANALYSIS At the national level, two major" federal laws are aimed at eliminating employment discrimination. Both are relatively new, slightly more than twenty-years old. The onslaught of these two federal employment laws, and the resulting regulations and rules which stemmed from them, came about in the United States between the years of 1963 and 1964. Prior to 1963, there was no federal law, or laws, to prohibit public and private employment discrimination. For the most part, public, private, or third-sector employers could virtually handle and treat their employees in any manner they deemed appropriate. Typically, such practices often involved employers handling and treating their employees in a way which best suited organizational purposes. Basically, this meant that employers could hire, fire, promote, or transfer an employee into and out of the work establishment's job positions as they saw fit. Moreover, they could pay their male and female employees unequally, even though each may have been doing equal work. Employers could

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240 also administer job tests to job incumbents, regardless of whether the examination instrument had a direct relationship to the job positions' content, duties, and responsibilities. And, employers could, and in fact did, hire male and female workers to become employed in their job classes solely on the basis of sexual preference. One such means of accomplishing this objective was for the employer to designate in communications media tha.t the opened job posi tion either required a "male" or "female." Employment practices such as and many others like them, were widely utilized by employers prior to the enactment of national policies directed at correcting them. The notion of fair employment practices was non-existent. On the whole, employers could engage in what might even be considered suspect or illicit employment practices. Hence, they could treat their employees in almost any fashion without fear of reprisal from the Federal Government. Perhaps, the broadest example of this is that an employer could hire, fire, promote, or transfer, any individual with regard to the person's race, color, national origin, religion, or sex. This chapter analyzes the comparable worth pay issue within the existing legal framework of the two

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241 federal employment laws enacted to eradicate unlawful job practices: The Equal Pay Act (EPA) of 1963 and the Civil Rights Act(CRA) of 1964. The chapter's major purpose centers upon the review of how the legal merits of the comparable worth doctrine has been dealt with by the federal courts. In this respect, the lawful question before the federal judiciary is whether the Equal Pay Act of 1963 and the Civil Rights Act of 1964 are violated when an employer undervalues and undercompensates the employed women's and wages. Presumably, the women's jobs are sex segregated and the value of the positions are of comparable worth relative to the ones worked by males. From the inception of the two national employment laws regulating their respective job aspects, the relations governing the employer and the employee underwent.dramatic change. The Equal Pay Act was the Federal Government's legal mechanism for eradicating sex discrimination and unequal compensation in jobs worked by males and females who performed equal work. The Civil Rights Act of 1964 was aimed at eliminating one's employment consideration on the basis of their race, color, national origin, religion, or sex. The EPA was expressly meant as a federal measure for wage equalization between men and women doing the

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242 same job. The Civil Rights Act was enacted to prohibit employers from engaging in a wide range of illicit employment practices. As a foundation for discussing the two federal employment laws as they relate to the equal pay for equal work value issue, the assumption is made "that the statutes provide an inadequate lawful bases for a comparable worth legal claim. If the assumption is proven, then it is only logical to recognize that additional federal legislation is warranted if employed women are overcome sex and pay employment discrimination. A Historical Perspective The notion of "what has ultimately emerged as comparable worth finds its beginnings tied to formal efforts in the United States to obtain equal pay for equal work for the employed woman. Since the early Twentieth Century, numerous efforts have occurred at the national government level to gain equal pay for employed women. The first of these was put forth by the Industrial Commission in 1898.1 The Commission's work in this area has been acclaimed as the first of its kind to be conducted by a federally-appointed body. The results of the Commission's work led to the formal endorsement that working women be paid wages equal to

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those of working men doing the same work. The federally-des igna ted Commi ss ion stud ied the wage differential problem and found that men and women doing the same work were unequally compensated. The female worker, they found, worked and earned wages identified by them as "pin.money.,,2 Members of the Industrial Commission pointed out that, in a typical woman's employment situation, she was found to be employed in the most undesirable jobs, under the poorest and most morbid working conditions, and paid the lowest wages. Hence, in their final report, the Commission disclosed that male-female pay disparities were prevalent in job situations where the two sexes performed equal work. As a result,' the report concluded that the sexes' wage payments in these should be equalized. Long after the Industrial Commission's work ended, formal governmental efforts to address the male-female equal pay concern continued. In 1915, Congress established the Commission of Industrial Relations. That body was given the congressional edict to investigate and report to Congress the relative economic positions of employed males and females, among other things. Similar to the work done by its predecessor, the Commission of Industrial Relations also found that employed women, when compared to their

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244 counterparts, were grossly undercompensated by employers even though they worked in the same jobs. The 1915 Commission's report concluded that the underpaid status of the female worker was directly attributable to, primarily, sex discrimination in the workplace. In suggesting a remedy to the. problem, the Commission went so far as to recommend that employers should pay working females wage equal to those paid wages to males dOing similar work. The two World Wars furthered the efforts to achieve equality in wages for working women. During World War I, the War Labor Conference Board was charged with the task of reviewing labor-management relations that existed in the United states at that time. The other go.vernmental body to examine the si tua tion was the War Labor Board during World War II. The work of these two bodies actually provided each with opportunities. to become involved in a wide range of U.s. labor-management relations. In some respects, the endeavors of the 1915 Commission of Industrial Relations and-the World War I War Labor Conference Board may have overlapped. Nevertheless, the War Labor Conference Board's chief responsibility was to act as an arbitrator in resolving the labor-management disputes likely to occur while the United States was

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engaged in war. The Board got involved in matters such as those directly related to the wage and salary rates employers paid to their male and female employees. In some cases, it was found that male and females did equal work, yet the latter did not receive equal pay. When these work situations were identified and documented, the Board attempted to correct these disparities by taking the position that employers pay males .and females equal wages. In other words, the Board mandated that, as a policy course, employers should compensate employed men and women performing the same jobs equal pay, without regard to the worker's gender. In numerous cases involving the equal pay issue the Board adopted a firm posi tion and actually compelled employers to conform with their formal mandate. In such instances, the Board had to go so far as to order employers to comply with its instructions.3 The World War II, War Labor Board was the next governmental entity to become involved with certain aspects of trying to secure fair wages for women working in jobs equal to those of men. In this context, like the World War I, War Labor Conference Board, the War Labor Board of World War II also was empowered both with the authority and responsibility necessary to resolve whatever labor-management crises

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246 likely to disrupt among these factions during the war years. The Board's aim was to maintain industrial peace so as to prevent work stoppages and other events that would have, unquestionably, impacted wartime productivity. In terms of the .role it played during World War II and the influence it had on job evaluation, the WLB's important contributions were discussed in the preceding chapter. Briefly, however, in unequal pay ma-tters, the Board instructed employers to upwardly adjust the pay of undercompensation females if the job was identified and document-ed, and the Board was reasonably satisfied that such was the case. Moreover, in some of these instances, .when employers showed reluctance to obey the Board's instructions (similar to the War Labor Conference Board's tough stand on the problem), the War Labor Board is reported to have imposed its will on employers, thereby compelling them to make the mandated pay adjustments. As a consequence of the War Labor Board's austere position on correcting overt pay disparities, that body is undeniably credited with having fostered a comparable worth pay standard in its handling and disposition of the sex-based pay claims it ruled upon. The War Labor Board's policy regarding these sex-based, unequal pay complaints was simple, yet

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247 effective. First, the Board made it compulsory for employers to compensate women who had' replaced men in jobs equal or comparable wages if the work positions required the same level of effort, responsibility, and skill. Second, as an extension of the first point, if the newly-occupied female jobholders' positions demonstrated "comparable quality and quantity" with the employer's other intra-plant and inter-plant jobs, then, at a minimum, the women in those job positions had to be paid comparable work value wages. The work of the War Labor Board is regarded by pay equity advocates as most instrumental in both promoting comparable worth, and, at the same time, operationalizing the concept. As a further testimony to this, Winn Newman acknowledges that the War Labor Board did, indeed, impose upon industry at that time a "comparable worth posture.,,4 Beyond the work, spanning forty-five years, of the War Labor Conference Board and the War Labor Board, women's efforts to obtain equal work wages in the job place persisted long after the Second World War ended. From that point to the present, the major thrust of their efforts had centered on carrying their pay concerns into the political arena. In making the political forefront their chief mechanism for dealing

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with the problem, women sought to bring pressure to bear on federal, state, and local lawmakers. Women attempted to get these bodies to enact legislation which would, presumably, remedy the problem. 248 Meaningful legislation at the different levels of government, they felt, was an essential part of combating sex discrimination in the marketplace. The majority of employed women believed their job wages and work were devalued largely because of sex discrimination. During the late fifties, the two major political parties became the channels working women used to air their concerns about unequal pay and occupational sex discrimination. And, although both the Democratic and Republ ican Parties were approached for the ir support for the cause, it was the Democratic Party that, in the final analysis, came up with substantive measures to deal effectively with the working woman's grievances. Prior to the 1960 General Election, the Democratic Party adopted a national platform policy statement that endorsed the equal pay for equal work concept, on behalf of u.s. working women. Further, the 1960 convention delegates did not stop there. Concurrently, they summoned the call for the elimination of all facets of job discrimination in employment. This included, but was not solely limited

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249 to, occupational discrimination based on the job incumbent's race, color, national origin, and religion. In addition, the.resolution called for sex to be eliminated as an employment consideration. The Democrat-sponsored resolution adopting an antidiscrimination employment posture used straight-forward language. Pointedly, it attacked all "artificial and arbitrary" barriers to female employment and directly called for their unilateral removal. 5 Working women, and those who supported their aims to procure equal wages, felt that the removal of all arbitrary and artificial barriers to employment was necessary if sex discrimination in employment was to be el imina ted. The text of the resolution adopted by the delegates at the 1960 Democratic Convention reads: The right to a job requires action to break down artificial and arbitrary barriers to employment based on age, race, sex, religion, or national origin. Unemployment strikes hardest at workers over [age] 40, minority groups, young people, and women. We will not achieve full employment until prejudice against these workers is wiped out. [With respect to equality for women] we support legislation which will guarantee women equality of rights under the Gaw, including equal pay for equal work.

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Although delegates to the Republican Conv.ention also supported the concept of pay equality for working women, their support was more in principle than substance. A search of the literature revealed no similar statement in their platform, during this time, that categorically adopted and hence represented an affirmative statement on the subject. The equal pay resolution adopted by the Democratic Convention tiel-egates quickly became a priority agenda item and one which was to be capitalized on by their party's presidential candidate, John F. Kennedy. He would exploit its appeal to help achieve his political ends. Kennedy actively campaigned for the women's pay equality idea and endorsed it wholeheartedly. After all, he was carrying forth the will of that convention's delegates in that their manifested actions became embodied in a resolution. This resolution was viewed by the presidential candidate as an integral part of the Democratic National Party Platform, prior to the 1960 General Election. The popular features of women attaining pay for equal work had wide appeal and, hence, Kennedy campaigned on its theme.

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251 The Evolution of the Equal Pay Act As an initial step toward the goal of helping employed women achieve equal pay for equal work, Kennedy appointed the President's Commission on the Status of Women in 1961.7 The Commission's main task was to investigate and report to the Office of the Presidency on the prevailing status of the American woman. Apart from that,. it was also the Commission's objective to make recommendations to the Executive Branch of government relative to the measures which could be taken to improve the American woman's status. Among the things the Commission examined and reported on was the working woman's occupational participation and her general employment treatment. In this regard, the Commission emerged with two very important recommendations. Each was directly tied to the improvement of the status of u.S. working females. First, the Commission took cognizance of the fact that if working women were to improve their economic status, then it would be essential to eliminate sex discrimination in employment. Sex discrimination, they found, was an operative and pervasive factor which kept working women from having equal job opportunities relative to working men. Second, since the Commission

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252 found that sex biases against women resulted in their undercompensated status, they recommended that employed females be paid equal wages in those jobs which were equal, and also worked by men. The work done by Kennedy's 1961 Commission on the Status of "Women became the catalyst for bringing about important actions at the federal government level in addressing the employed woman's workforce problems. The Kennedy Administration is credited with having gotten through the u.s. Congress a federal equal pay for equal work bill, by the end of the year of his death, 1963. Even during what would, in retrospect, become the waning days of his life, numerous proposed equal pay bills were undertaken by the Second Session of the Eighty-Seventh Congress and by the First Session of the Eighty-Eighth congress.8 The Second Session of the Congress considered the equal pay legislation written into the text of House Resolution (H.R.) 8898 and H.R. 10226. Relative to each, public hearings were held "to solicit comment from individuals regarding their merits of the proposed legislation. The public hearings took place, first, in Washington, D.C., on March 26 through 28, 1962,10 and in New York City, on April 27 and 28, of the same year.ll The First Session of the Eighty-Eighth Congress took up the

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253 equal pay provisions which had been incorporated in Public Law 88-38.12 It represented the embodiment of both the u.s. House of Representatives' and the Senate's version of their respective equal pay bills. Correspondingly, these were H.R. 606013 and S. 1409.14 Of all the proposed equal pay statutes taken up by the congressional sessions, H.R. 6060 eventually became what is known as the Equal Pay Act of 1963.15 An overview of the equal pay legislation considered by the various congressional bodies during the years cif 1962 and 1963 reveals that each was broadly aimed at prcihibiting sex discrimination in the payment of wages by employers who engaged in commerce or in the production of sale of goods for commerce, and to recompense earnings lost by reason of any such discrimination. The proposed equal pay law, like all other statutory measures, had its proponents and opponents. From a political standpoint, there appeared to be little question that the Kennedy Administration was the biggest supporter of some form of an equal pay for equal work bill being enacted into law. Combined with Administration support for the passage of an equal pay statute, working women, women's organizations, civil rights groups, and labor u.nions were, likewise, in equal stead.

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254 Employers, however, were the bill's chief opponents. They rationalized their opposition on the basis that the economic burden of paying employed women equal work wages would be too great. The anticipated impact from the enactment of a national equal pay law was further regarded by 'employers as potentially devastating and disruptive to the workplace. Despite the pros and cons surrounding the proposed equal pay laws, those in favor of ,the idea and those against it, nevertheless, qarried forward their efforts in support of their respective positions. The evidence of the Kennedy Administration's support for the passage of an equality in pay bill is attested to by the statements of Arthur J. Goldberg, President Kennedy's Secretary of Labor and Assistant Secretary of Labor, Esther Peterson. In his address to the u.S. House Select Subcommittee on Labor, Secretary Goldberg stated: I am pleased to appear before you to discuss the administration's equal pay embodied in H. R.88 98 and H. R. 10226 [The proposed equal pay bills] prohibits an employer having employees engaged in commerce or in the production of goods for commerce from discriminating between his employees by paying lower wages to one sex than he pays to the other sex for substantially the same job. In other words, 'work of comparable character on jobs the performance of which requires comparable skill must be paid for on an equal, nondiscriminatory basis. Payment of different rates is permitted, however, pursuant to non seniority or merit increase systems.

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Similarly, in presenting wage information to the Committee about the difference in existing male-female earnings, Assistant Labor Secretary Esther Peterson testified that the equal pay bills being considered were simply one of many steps "which would make it impossible for an employer to pay unequal rates if two persons, a man and a woman, are performing work of a .comparable character." 1 7 Women's organi za.tions, such as the American Association of University Women, the Nationai Council of Catholic Women, the National Council of Jewish Women, the National Women's Party, the National Council of Negro Women and a long list of various other groups and individuals supporting the equal pay. bills, voiced their support for a federally-enacted initiative to' remedy the unequal pay for equal work Labor unions also supported the equal pay bills. Unions such as the American Federation of Labor-Congress of Industrial Organization (AFL-CIO), the Textile Worker' 5 Union of America, the Retail Clerks International the Communications Workers of America and many others endorsed the implementation of some form of federal equal pay bill. The remarks provided by Mort Furay, a representative of the Hotel and Restaurant Employees Union, provide an example of one union's

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overwhelming support for the passage of an equal pay bill. Speaking extemporaneously to the House Committee hearing one such.equal pay measure, Furay asserted that his union's support for the adoption of an equal pay bill was based on the consensus that the measure "provides for equal work for the same job and we hope that this means that it is equal pay for the same worth to the employer.,,18 Comments such as Furay's were reflective of the issue's general support. To summarize the discussion to this point, it appeared certain that after John Kennedy's 1960 electiori victory, the congressional bodies hearing the numerous proposed equal pay bills would eventually destine one of them to become federal law. The Kennedy Administration's position on this issue, the inception of equal pay law, was also supported by a host of other lawmakers, groups, and many working women who labored hard to make the equal pay for equal work concept a reality of its time. Despite the likelihood that both Houses of Congress would one day finally agree on a unified version of an equal pay bill, the wheels of the federal political machinery were slow to turn. The Second Session of the Eighty-Seventh Congress ended without members enacting an equal pay law. Then things began

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257 to move rather rapidly during the First Session of the Eighty-Eighth Congress. As a start, a Special Subcommittee on Labor of the Committee on Education and Labor was commissioned by the full members of the u.S. House of Representatives to hold formal hearings on the proposed equal pay legislation pending in the House, at that time. The House Special Subcommittee on Labor held hearings on the subject, as instructed, in Washington, D.C., on March 15, 25, 26, and 27, 1963. The attention in these hearings focused on, mainly, H.R. 3861, but there were other related equal pay measures parleyed. All of the bills' general titles prohibited employer's from making unequal wages payments to women who performed equpl work in the same jobs worked by men. In other words, the texts of the suggested equal pay measures pay discrimination between the sexes on the basis of gender. Pro and con, testimony was offered in support of and against the proposed wage equalization bills. The public debates and the Congressional deliberations continued on the merits of adopting an equal pay law up until December, 1963. It was during this time that two final proposed versions of the equal pay law emerged. One came from the u.S. House and the other came from

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the u.s. Senate. Respectively, H.R. 6060 and S. 1409 became the two proposed legal frameworks that required the joint participation of both Congressional bodies for agreement on the final legislative provisions. In truth, Congressional efforts to enact an equal pay bill in 1963 appeared to have been more productive than those made in 1962. In 1962, it has been said that Congress failed to enact an equal pay measure into law tha t year because of the. inabil i ty of the House and the Senate to agree on whether the equal pay bill should be attached as a "rider" measure to a foreign relations bill then being considered by the president.19 Congress deliberated on the equal pay matter and the multitude of its proposed measures for slightly more than eighteen months. During this time, there were essentially three obstacles which Congressional members wanted to resolve before agreeing upon a final version of any proposed equal pay bill. First and foremost, Congressional members wanted absolute resolution of the issue of whether the employer's payment of wag.es to the sexes employed in similar jobs should be based on "equal" or "comparable" work. Second, they explored whether the creation of a new federal agency would be necessary in carrying out the legislative mandate of any subsequently enacted equal

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259 pay law. And, third, be it an existing or a newly-created one, whether the agency having jurisdiction the law would be granted a broad range of enforcement powers in its administration and enforcement. Members of Congress were concern about the scope of the agency's powers vis-a-vis the investigation into alleged or actual instances of the law's violations. Throughout the two sessions Congress deliberated on the equal. pay bills, a tremendous amount of time and energy was. expended trying to resolve these three concerns. In large part, the first two considerations were resolved by Congress when members decided the "equal" versus "comparable" work issue. The "equal" versus "comparable" work question arose as a result of the inclusion of "comparable" language in 11677. House Resolution 11677 was the Equal Pay Act of 1962.20 The amendment to substitute the word "equal" for "comparable," in characterizing the work standard, was introduced by Representative Katherine St. George of New York. Appropriately, it became known as the St. George Amendment. The St. George Amendment was specifically aimed at narrowing the context of the jobs deemed "equal" and worked by males .and females. In this respect, the jobs worked by the sexes had to

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260 demonstrate "equal" work job content character, not "comparable" work. Kennedy Administration officials supported the "work of comparable character" standard. It was broader in context than the "equal" work standard put forth by Congresswoman St. George. Nevertheless, the Administration yielded its position when it became apparent that the term "equal" would prevail.21 The amendment's roll call vote on the issue's final disposition in the House was 138 "ayes" and 104 "noes".22 Consequeritly, the St. Amendment was adopted. The 1962 Congressional deliberations over the St. George Amendment and whether to adopt the "equal" or "comparable" work standard in the proposed equal pay bill were interesting. In this regard, there appeared to be a vast amount of confusion among House members as to whether the term "comparable," if adopted, would be specific enough in meaning to make the bill's language clear and enforceable. During the initial discussions on the equal pay bills in the House of Representatives, Labor Secretary Goldberg did his best to clarify this point. He tried to convince House members that the proposed equal pay bills were not intended to establish equal pay for equal work between different employers. Rather, they were aimed at equalizing the pay among and

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261 between workirig males and females doing "comparable" work and employed by the same employer. Says Goldberg: this bill is not designed to standardize wage rates between different employers within an whether it is with respect to men or women. Those who advocated the retention of the term "comparable" in H.R. 11677 did so in support of the Kennedy Administration's staunch position on the issue. The Administration's position was that, to amend the bill and hence substitute the word "equal" for "comparable" in characterizing the work situation upon which equal pay between the sexes would be based, would result in its defeat.24 Contrary to the Kennedy Administration's firm stand on the incorporation of the term "comparable" into the bill's language, House members put the subject under grave scrutiny. But, in the final analysis, .the word "equal" was included in the final version of the equal pay statute. Here is how it happened. An amendment was introduced to the original text of H.R. 11677 which had at first adopted the language that the employer's jobs be "comparable" in effort, responsibility, skill, and working conditions. Representative Katherine St. George offered a change to the bill which proposed to substitute in its language

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262 the term "equal" for comparable.25 In introducing the amendment to the full House, Representative St. George asserted: What we want to do in this bill is to make it exactly what it says. It is called equal pay for equal work in some of the committee hearings. There is a great difference between the word 'comparable' and the word 'equal' 'Equal' implies no difference in amount, number, and value. This is not true of the word 'comparable.' The word 'comparable' opens up great vistas. It gives tremendous latitude to is to be arbitrator in these disputes. Congressman Herbert Zelenko, also of New York, came to the Administration's defense. He was chairman of the House Select Subcommittee on Labor of the Committee on Education and Labor during the hearings on the equal pay bills in 1962. Congressman Zelenko, too, believed that the word "cpmparable" should be included in the bill's language; to do otherwise, he felt, would inevitably spell doom for the legislation. Congressman Zelenko offered the following statement. The statement comes from a letter written to him, and authorized, by Labor Secretary Goldberg: The language as so changed in our opinion, could spell defeat for the bill's purpose. 'Equal' be interpreted to have a rigid connotation such as 'exact uniformity,' 'of the same measure,' and so on--incompatible with an effective equal pay law which necessarily must be applied on the basis of similarity between one job in relation to another job but not the exactness of two jobs.

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If a showing of equality was a requisite to establish the requirement of equal pay, the conscious introduction of one slight and trivial factor might be considered sufficient to justify a.lower wage rate. 'Comparable' is a key word in our proposal. It is used in both tests which are essential under the proposal to establish the resemblance between jobs necessitating equal pay, that is, 'work of comparable character' on jobs requiring 'comparable skills.It connotes an identity of work operation and skill permitting a realistic and practical appraisal of two jobs to determine whether they have enough like characteristics and skill:igemands to war.rant the same basic pay rate. Despite, what to be the eloquent statement provided to Zelenko by Goldberg, the St. George 263 Amendment won out. Congressional members voted to accept it due to the specificity of the tern "equal" as opposed to the vagueness and imprecise contours of the word "comparable." By and large, when Congresswoman St. George spoke about the comparable work tern opening up "great vistas" and, at the same time, affording the federal enforcement agency "tremendous latitude" in its administration of the proposed act, her efforts were instrumental in clearing up other areas of confusion which Congressional members expressed over the equal pay issue. In this regard, Representative st. George was concerned about the bill's broad administrative and

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enforcement powers. Like other members of Congress, she, too, was concerned about extending wide investigatory powers to the federal agency empowered with its execution. Congresswoman St. George took the position that the use of the word "comparab1e created too much uncertainty in the process of attempting to determine what constituted "comparable" work. Further, she wanted some assurance that the federal agency charged with the law's administration, enforcement, and investigation would not unnecessary inquiries into cases in which merely equal pay violations were thought to have occurred. As stated, some members in the u.s. Senate shared St. George's concern. They, too, did not want t"he u.s. "Government going around conducting "wholesale" investigations into the employer's business to determine which of their jobs were "equal" or "comparab1e.,,28 Those key issues, and some of lesser importance, eventually got worked out. The result was that two final versions of an equal pay bill emerged. Both versions of the newly-proposed equal pay laws were put forth as amendments to the Fair Labor Standards Act of 1938.29 Congressional members placed the equal pay law's administration and enforcement under the auspices of the u.S. Department of Labor. That federal agency

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265 administers the provisions of the Fair Labor Standards Law. At that time, within the Department of Labor, the Wage and Hour Division was empowered with the Equal Pay Act's administration, enforcement, and violation investigations. The assignment of the EPA's administration, enforcement, and investigation powers to the Department of Labor made it-abundantly clear that it was unnecessary to create another arm of the federal bureaucracy to carry out these functions. Another key concern Congressional members had about the enactment of an equal pay law was whether it would require the addition of more federal employees to carry out its legislative mandate. They concerned aboui this because of the potential increased personnel costs to the Federal Government. In a 1962 report published by the Department of Labor, estimates showed that personnel additions would come to about 242 new employees at an initial cost to the taxpayer of approximately $1 million per year. In tying together the considerations of the proposed equal pay bills' administration, enforcement, investigation, personnel additions, and associated costs, Congressional members were given assurances by the Department of Labor that their actions would be balanced in these respects.

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266 Aside from those considerations, perhaps, the most important assurance federal lawmakers were given in adopting the St. George Amendment was that Labor Depart-ment officials would not go "trooping around allover the country harassing business with their various 30 interpretations of the term 'comparable'''. In 1963, when the House took up the equal pay bills before it, they held hearings on primarily H.R. 3861 and, secondarily, on other related bills pertaining to the subject. The st. George's Amendment adopted in H.R. 11677 during the 1962 Session was also included in the text of H.R. 3861. Later, the same inclusion found its way in what became identified as H.R. 6060 and s. 1409, or Public Law 88-38,31 the Equal Pay Actof 1963.32 The Equal Pay Act of 1963 is an amendment to the Fair Labor Standards Act of 1938: it reads: No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employee are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system: (ii) a merit system: (iii) a system which measures earnings by quantity or quality of production: or (iv) a differential based on any other factor other than sex: Provided, that any employer who is paying a wage rate

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differential in violatiort of this subsection shall not, in order to comply with the provisions of this reduce the wage rate of any employee. The Equal Pay Act was specifically aimed at 267 prohibiting employers from discriminating in the wages paid to their male and female employees who performed equal work. The jobs had to demonstrate equality in effort, responsibility and skill, and they had to be performed under similar working conditions. Congress adopted the more narrow and specific equal work standard over the comparable norm to prevent the Department of Labor from making wholesale determinations of which jobs in the employers' establishment were "comparable" and which were not. Williams and McDowell pointed out that two major themes are found in the eighteen months Congress deliberated over the equal pay bills: First, the dissimilar jobs were not to be compared for the purpose of determining whether wage discrimination had and, second, that the role of federal involvement in equal pay determinations was to be restricted. That is, the roles of the Labor Department and federal courts in h b' 1 l' d 35 t IS area were to e strIct y Imlte. The precise

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268 definition of the term "equal," as a result of its contextual application, fostered these two limitations. Representative Griffin of Michigan comments in this regard: this legislation some definition as to what equal work is--what is meant by equal work. The bill refers to jobs, the performance of which require equal skill, equal effort, equal responsibility, and which are under similar working condltlons. The Equal Pay Ac.t of 1963 made it unlawful for employers to discriminate in the wages paid to their male and female employees when the same work is being performed by both. The law also applies to jobs in which the work may not be exactly the same, but similar.' The .job content, or job factors, of effort, skill, responsibility, and the working conditions must be the saine or s imil ar. In thi s reg ard, equal job' situations must demonstrate substantial equality in those same or similar jobs worked by males and females, if the latter are to receive equal pay. The Equal Pay statute also allows the employer four exceptions to job situations worked by the sexes in which they are lawfully exempted from paying the sexes equal wages. The EPA's four exceptions also constitute the. lawful defenses available to employers should they be sued in court. If the jobs are based on 1) a seniority system; "-.

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269 2) a merit system: 3) a which measures earnings by quantity or quality of production: or 4) a differential based on any factor other than sex, then an employer has the statutory justification for paying unequal wages to its male and female employees who perform the same work. The Equal Pay Act and its provisions, covering the entitlement or non-entitlement of equal work wage payments in jobs worked by males and females, are specific and pointed in language. There appears to be no vagueness in the law's statutory construction or meaning. Further, its language makes quite clear Congress' intent to narrowly define "equal" work to specify what job situations make for this characterization. In narrowly defining what jobs it meant as equal work characterizations, Congress did not intend that the jobs be absolutely equal or identical in the strictest sense of the term.37 Though the language of the EPA requires that the jobs be equal, the requirement was later modified through judicial interpretation to mean that the male and female jobs should show substantial equality. In other words, equal work situations existed as long as the jobs' factors of effort, skill, responsibility, and working conditions were proven to be substantially equal.38 In

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270 addition to the Act's narrow provisions, persons alleging unequal pay for equal work situations are limited under the law to those job positions within the employer's work establishment, not inter-plant ones. That is to say, an employer having more than one work establishment in any state within the United States, or in any of its territories or jurisdictions, is not in violation of the Equal Pay Act for paying its male and female workers higher "equal" wages than those paid, say, a male and female employee doing the same job in another of its work facilities. From a legal viewpoint, the first level of proof is for the suing party to show that the male and female jobs are unequally paid, but of equal work. The burden then shifts to the employer to prove that the job or jobs in question are not the same, or are not substantially equal, or are equal but exempt because of one of EPA's four affirmative defenses for unequal wage payments. It is in this operative manner that the EPA'S four exceptions become the employer's affirmative defenses. Barring the Act's four exceptions, employers have no legal bases under which they can lawfully justify unequal wage payments to males and females who performed equal work.

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271 When the EPA was enacted nearly twenty-four years ago, Congress placed its administration, enforcement, and .investigatory powers with the Wage and Hour Division of the U.S. Department of Labor. On January 1, 1979, the law's jurisdiction over these functions was transferred to the Equal Employment Opportunity Commission (EEOC).40 During the time the Department of Labor had jurisdiction over the EPA's administration and enforcement, it was instrumental in obtaining millions of dollars in back pay and equalized job wage adjustments for undercompensated employed women who performed equal work. Though estima tes vary, it has been approximated that between $200 to $300 million have been recovered by the Department of Labor from employers and disbursed to women who were found to have been working in jobs equal to those of men, but paid less than equal wages. 41 Despite the social and economic gains women were able to derive from the EPA and the Department of Labor's efforts in this regard, sex discrimination in employment persisted. It still limits the employed female's job opportunities today. The 1963 enactment of a national equal pay for equal work bill represented Congress' desire to curtail pay discrimination in employment based on sex. In this regard, if one takes

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272 the position that sex discrimination--or any other illicit form of job discrimination--is both morally and legally tasteless, then it seems that one could hardly belittle the social and economic gains made realizable by the EPA. Although it is not this writer's intent to speak of the EPA and its effectiveness in this respect, it should nevertheless be pointed out that the statute has failed to eradicate marketplace sex discrimination. Moreover, it has fallen short of its intended aim of equalizing the paid wages between the sexes performing equal work. This is because the Act's powerful exemptions, giving emploers the legal right to pay the sexes unequal wages, actually discriminate against women doing equal work. Therefore, women in these situations do not receive equal pay. The merit system exclusion operates to deprive employed women 6f equal job wages, even though they may be working in equal jobs relative to men. So do the seniority system exemption, the production incentive allowance, and the "any other factor other than sex" allowance. Either in whole or in part, the EPA's exceptions operate to preclude a significant number of employed females who work in equal jobs from being paid equal wages by public, private, anq non-profit employers. When taken as a whole, a significant number of working females

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273 work in seniority-type employment systems, public merit employment systems, employment systems based on production quality or quantity of output, and those employment systems based on "any other factor other than sex. Since a meaningful number of working women are precluded from being paid equal wages in these exempt employment systems, pay equity advocates adjudge the 1963 law to be of value in the real aim of equalizing the pay between men and women doing equal work. The facts of the matter are twofold. First, based on the equal pay statute and its legal exemptions, public and private employers do not have to pay men and women doing equal work the compensation as long as the job content and job tasks come under one or all of the Act's four exclusionary provisions. Second, a significant number of employed women work in jobs that are quite dissimilar in skill, effort, responsibility, and in working conditions than those worked by employed men. Hence, unequal pay claims for dissimilar work fall outside the EPA's coverage.42 As Margaret Moses aptly puts it: Since most companies have sex-segregated job structures, with women doing work quite different from men, many women are in a situation where they cannot clai13the protection of the Equal Pay Act.

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Congressional members purposefully intended the scope of the EPA's coverage to be limited in this regard. The records of their deliperations and debates on the subject make this abundantly clear. What makes this clear is that Congress intended to adopt the pay for equal work standard, the more specific one, over the much more nebulous pay for "work of comparable character" requirement. This was due to the former's highly definitive, operationalized, Congress' rej ect ion of the pay for di ssimil ar work concept resulted from the standard. being both obscure in form and substance. In light of Congress' action in this respect, it became apparent that the pay for comparable worth value idea was indeed a vague doctrine whose time had yet to arrive. In conclusion, Congress' enactment of the Equal Pay Act of 1963 into federal employment law embodied the equal pay for equal work concept. The 1963 law does not provide a legal basis for a claim when the work in question, between male and females, is ISSlml ar In nature. Though the Equa:l:---Pay Act was intended to equalize the relative earnings of employed males and females doing equal work and, hence, close the disparity in the wage gap between the sexes, it appears these goals have yet to be realized. For

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example, today, a wide disparity is still to be found in the median earnings employers pay to their male and female employees. And, though the Equal Pay Act did help to close the disparate wage gap in its nearly twenty-four year existence, it contains inherent features which also retard women's economic progress: the Act's lawful, unequal pay exceptions. In addition to these limiting aspects of the Act, it is also known that, based on the EPA,sex':'based. pay claims involving dissimilar work are not embraceable. Consequently, these issues evoke the question, "can comparable work or worth pay claims be entertained under the Civil Rights Act of 1964 ?,,45 The Civil .Rights Act of 1964 The Civil Rights Act of 1964 is the other major national employment law passed by Congress in 1964. It prohibited sex and pay discrimination in employment, among other things. It took effect on July 2, 1964. Unlike the EPA of 1963, the Civil Rights Act is much broader in context and scope in the law's ability to address a wide range of employment violations. Upon its enactment into law, the Civil Rights Act of 1964 drastically altered a range of then-existing employment practices. By and large, Title VII of the Civil Rights

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276 Act of 1964 contains the relevant provisions which deal with the prohibitory aspects of employment discrimination. For .the most part, Title VII makes employment considerations based on an individual's race, color, national origin, religion or sex illegal. Based on these factors, under Title VII, it is unlawful for employers to discriminate against individuals with regard to their hiring, firing, transferring, promotion, classification, employment terms and conditions, and employment opportunities. Relative to the comparable worth. problem, pay equity advocates adopt the position that occupational sex segregation and the undervaluation and undercompensation of women's work and wages 'are illicit employment .practices which should be legally res.o1vab1e under the Title VII's provisions of the 1964 Civil Rights Act. The bases for their contention in this regard are twofold. First, comparable worth proponents believe that job sex segregation, however intentional or unintentional, is something which should be offensive to Title VII. For example, the law makes sex-based decisions and illicit work classification, likely, unlawful employment practices. Another example is that unequal compensation payments to women who worked in dissimilar jobs, which are equal in value

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277 relative to the ones worked by men, should likewise be illegal under Title VIr since the pay discrimination results from gender-based determinations. In short, Title VII is viewed by pay equity advocates as substantively prohibiting the limitation and segregation of males and females into certain job classes, by sex, in which pay discrimination results. Pay equity reformers contend further that as a result of the working woman '.s segregation into predominantly female job classes, aggregate wage salary rates paid for their work are significantly lower than those employers pay to men who are employed in predominantly male job classes. The question is whether job sex segregation and unequal pay for jobs of equal worth violate Title VII. In other words, can a legal claim alleging sex-based pay discrimination for job undervaluation and undercompensation be effected and sustained under the guise of Title VII? As previously mentioned, Title VII's provisions are far broader in scope than the more narrow ones contained in the Equal Pay Act. The EPA is specifically aimed at redressing the employment situation of paying males and females doing the same work unequal wages. On the other hand, Title VII not only encompasses the scope of the EPA's provisions, but it goes much further in its coverage in prohibiting a

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278 multitude of other discriminatory employment practices. In its most simplistic fashion, the legal analyses of the comparable worth job issue actually begin with an examination of Title VII and its related broadness. In this regard, the employment statute's broad range also extends to the limiting, segregating, and classifying of an employer's employees in a manner which may adversely affect the individual's status or job opportunities. Hence, the pertinent part of Title VII reads: It shall be unlawful for an employer to limit, segregate, or classify his (sic) employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his [sic] status as an employee, becaus'e of such color, religion, sex, or natIonal orIgIn. In literally interpreting the 'language embodied in Section 703(a)(2), one can clearly see that Congress deemed offensive the employment practice by which an employer limited, segregated, or classified its employees in such a fashion that their job opportunities become adversely affected. Moreover, Congress intended that all individuals--black, white, and other minority individuals, and without regard to their national origin, religion, or sex--be afforded 47 equal employment opportunities in the workplace.

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279 Similar to the four enumerated exceptions contained in the Equal Pay Act of 1963, Congress also found it appropriate to exempt employers from certain employment practices under Title VII as well. Employers were granted exclusions from such specific employment practices as applying different wage and compensation standards or applying different terms and conditions to a job incumbent's employment as long as the work in an establishment is based on (1) a bona fide seniority system; a merit syitem; or, (3) a system which measures earnings by quantity or quality of production. Comparing these with those exceptions contained in the EPA, one can see that the three incorporated into Title VII are almost the same as those included in the first three of the EPA. The only difference is that the characterization "bona fide" in describing the seniority system is used in Title VII's language, and the same is not used in the language of the EPA. The relevant part of Title VII which allows employers to apply differing pay standards, terms, conditions, and privileges to one's emp19yment is found in the statute's Section 703(h) provision. It states: Notwithstanding any other provIsIon of this title, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges or employment

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pursuant to a bona fide seniority or merit system, or a system which measures earnings byquantity or quality of production or to employees who work in different locations, provided that such differences are not the result of an intention to discriminate because religion, sex or national orIgIn Williams and McDowell note that Section 703(h) "has been read expansively by the courts to define what constitutes discrimination and to permit employment practices which otherwise might have been statutory prohibition."49 Section 703(h) prohibits employers from engaging in intentional discriminatory employment acts, basing such on the individual employee's race, color, national origin or sex. 280 Section 703(h) also contains another important feature which is specific in context and which was incorporated into the Title VII statute to avoid possible conflicts with its provisions and those of the Equal Pay Act's. This measure is known as the Bennett Amendment. The Amendment reads: It shall not be anunlawful employment practice [emphases original] under this title for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or to be paid to employees of such employer if such differential is authorized by the provisions of Section bed) of the Fair Labor Standards Act (29 U.S.C. 206(d) (Equal Pay Act).

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281 As previQus1y stated, the Bennett Amendment was included in the Title VII employment statute to circumvent the possible legal conflicts which might result between the applications of the Equal Pay Act and Title VII. Prior to the Supreme Court of the United States clarifying the dispute over the interrelationship of the two statutes in 1981, conflict had existed within the national court system. In this respect, there had been a longstanding debate among legal scholars as to whether the Bennett Amendment to Title VII incorporated the EPA's strict requirement that the jobs in question show "substantial equality" or whether it merely incorporated the Act's four affirmative defenses. Those adhering to the position that Title VII incorporated the EPA's requirement that the male-female jobs in question show substantial equality go further and say, also, that as a result of this inclusion, Title VII claims of sex-based pay discrimination cannot be embraced by the federal courts unless equal work is demonstrated first. And, subsequent to this showing, it is then and only then that the Equal Pay Act authorizes the judicial review of the alleged sex-pased compensation practices under Title VII's purview.

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282 In ascertaining the extent of the relationships between Title VII and the Equal Pay Act, respectively, the inclusions of theword "sex" and the Bennett Amendme'nt into Ti tIe VII's provisions are central features in analyzing the comparable worth job issue wi thin the existing legal framework. For, the most part, the treatment of each is captured in Title VII's legislative history.5l In the civil rights bill originally introduced in, the u.s. House of Representatives, neither the inclusion of sex into the text's language nor the Bennett Amendment was part of the statute's provisions. Both came as a result of subsequent amendments to the proposed law. The measure to add sex as a prohibitory employment factor came as an amendment to Title VII in the waning days of the bill's deliberation in the House of Representatives. The amendment to circumvent the, conflicts between Title VII and the Equal Pay Act is one which originated, and was consummated, in the United States Senate. What ultimately became the final version of the Civil Rights A9t of 1964 was initially introduced in the U.s. House of Representatives as H.R. 7152. The untimely death of President Kennedy set the stage for its swift enactment. This was effected through Lyndon B. Johnson, Kennedy's Vice-President. Upon Kennedy's

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death, the then newly-sworn in President Johnson made a commitment to the American public to do everything he could to realize. the Congressional passage and enactment of a federal civil rights bill. His aim in this regard was to ensure all American their inalienable civil liberties, which previously had been denied, mainly to blacks. Consequently, the major objective of the proposed civil rights legislation which came before the Federal Congress in 1963 was intended to provide, primarily, blacks and other minority Americans with equal employment opportunities in the job place, among other things. In a much broader sense, however, the Civil Rights Act extends its protections to all Americans, regardless of their ethnicity or their characteristic attributes, such as their national origin, religion, or sex. The Civil Rights Act of 1964 was not handled by Congress in the usual manner. To a large extent, its accelerated handling and treatment came about as a result of President Johnson's promise to get the legislation enacted into law with all due urgency. The final version of the civil rights measure, which emerged from the House of Representatives in 1964, went directly to the floor of the u.s. Senate for direct consideration by that body. Typically, the measure

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284 would have been taken up by the senate Judiciary Committee first. However, due to the Johnson Administration's pressing demands upon Congress to get the proposed law into existence, normal legislative procedures and processes were circumvented. The proposed civil rights bill, H.R. 7152, was known as the Kennedy Administration's Omnibus Measure.52 It was submitted for floor consideration to the House of Representative members by the House Judiciary Committee. Presumably, this was done on a bipartisan basis. Chairman Cellar, Chairman of the House Judiciary Committee, first submitted H.R. 7152 on June 20, 1963. Although there were other proposed civil rights bills introduced in the House of Representatives along with H.R. 7152, it eventually became the Civil Rights Act of 1964. Debate on H.R. 7152 and the other proposed civil rights bills was not held in the House of Representatives until the last day of January, 1964. During the ensuing days, House Judiciary members' attention, and that of the full House, focused on H.R. 7152 and its provisions. H.R. 7152 was reported out of the House Judiciary Committee as being a broad bill which covered a multitude of civil rights employment protections and proscriptions. The House deliberated on H.R. 7152 eleven days, from January 31, 1964, to

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285 February 10, 1964. During that time, the House adopted eighteen amendments to its original text. Of the eighteen the final version of H.R. 7152, the most important one is said to have been the one adding sex as a prohibitory employment discrimination factor. Previous to the sex amendment1s introduction, the proposed civil rights law only made it unlawful for an employer to discriminate with respect to one1s employment on the basis of race, color, national origin, or religion. The understanding of the comparable worth problem, as it relates both to Title VII of the Civil Rights Act and sex-based pay grievances under the statue, begins with the incorporation of the word sex into the proposed bill. The amendment which called for the inclusion of sex in the civil rights bill's provisions was'put forth by Congressman Smith of Virginia, a Democrat. Congressman Smith regarded it necessary to include sex in the bill1s provisions since gender-based employment discrimination was both known to exist and victimized working females. Some commentaries look upon Congressman Smith1s actions in this regard as both a joke and insincere.53 Some go further and suggest that Congressman Smith was an opponent of the bill whose aim in adding sex as a discriminatory job factor was to

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286 either muster defeat for the bill or, alternatively, water down its effectiveness.54 This writer, however, takes the position that Congressman Smith was sincere in his desire to include sex as an unlawful factor upon which one's employment could not be based. There is support for the aforementioned position, and Congressman Smith's own testimonial confirms this: [T] his amendment is offered to the fair employment practices title of this bill to include within our to prevent discrimination against another minority group, the women, but a very essential minority group, in the abserice of which the majority groupwould not be here today I think we all recognize and it is indisputable fact that all throughout industry women are discriminated against in that just generally speaking they do not get as high compensatigg f9r their work as do the majority sex Congressman Smith's proposal to add the sex amendment to H.R. 7152 did not go unchallenged. Reportedly, Congressman Cellar and Congresswoman Green of Oregon were the amendment's staunchest opponents. Since it was subsequently declared "ladies" afternoon in the House on that 6th day of February, 1964,56 it is appropriate to put forth Congresswoman Green's comments regarding the opposition to add the sex amendment to the proposed Title VII provisions. Congresswoman Green told House members that adding sex to the employment

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287 statute would only "clutter up" an important piece of legislation which was designed primarily to ensure the rights of Negroes. In Congresswoman Green's own words, she asserted: As much as I hope the day will come when discrimination will be ended against women, I really and sincerely hope that this amendment will not be to this bill. It will. clutter up the bill and it may later--very well--be to destroy this section of the bill by some of the very people who today support it. And I hope no other amendment will be added to this bill on sex or age or else jeg9ardize our prImary purpose In any way. In terms of the proposed bill's primary purpose" Congresswoman Green further states: [L]et us not add any amendment that would place in jeopardy in any way our primary objective of ending that discrimination that ismost serious, most urgent, most tragic, and mOst against the Negroes of our country. Despite the opposition to amending the civil rights legislation to add the sex amendment, it received overwhelming acceptance in the House on February 8, 1964, by a vote of 168 to 133.59 From the House of Representatives, the proposed Civil Rights Bill, H.R. 7152, went directly to the floor of the u.s. Senate for consideration. Normally, the regular legislative processes would have carried it to the Senate Judiciary Committee, but this did not happen. Reportedly, it was surmised that members of the Senate would adopt the

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288 House bill in substantive form, as it had been written, amended, and approved by House members. But, this did not happen. Senate members deliberated on the civil rights measure over the course of eighty-three days. During this time, the bill was changed at least eighty-seven times. Senator Dirksen of Illinois and Senator Mansfield of Montana made valuable contributions to the efforts to get the House-authored hill enacted into law. What emerged from their efforts was a "substitute" civil rights bill which made changes to its Title IX provisions.60 Though the Dirksen-Mansfield "substitute" eventually repl.ced H.R. 7152, the substituted bill retained the H.R. 7152 designation. The Dirksen-Mansfield substituted measure was the one eventually debated and accepted by Senate members. Senator Humphrey and the then Attorney General Robert F. Kennedy also offered their valuable assistance both in the authorship of H.R. 7l52's revised text and in 61 gettlng lt approve y Senate mem ers. Prior to the Senate vote on" the proposed legislation, Senate members who supported the bill voted by a margin of 71 to 29 to invoke cloture over the proceedings.62 This merely meant that the bill's supporters voted to limit floor discussion on the bill. Then, on June 17, 1964, Senate

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289 members voted to accept the substitute to H.R. 7152 with its important, incorporated changes.63 Nearly a week before the Dirksen-Mansfield actions brought about the vote in the Senate, another important occurrence took place which, in retrospect, would later impact the comparable worth consideration. This happened on June 12. It came at a time when the full Senate was deliberating on the House-submitted civil rights bill. Senator Bennett of Uta-h offered an amendment to H.R. 7152 aimed at c irc.umventingthe potential conflicts between the relationship of the Equal Pay Act and the Title VII employment statute.64 Earlier that month, the cloture procedure had been invoked. As previously stated, this assured the bill's supporters that debate over the matter would be limited. Moreover, limiting the discussions on the bill's considerations in this respect precluded it from receiving the usual and extensive deliberations, which are typically afforded almost all measures Congress considers. In retrospect, the collective decision by the majority of Senate members to limit the debate on H.R. 7152 would abrogate a very important aspect of the Bennett Amendment, as it was later called. This was its legislative history. In this light, the cloture

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290 proceeding prevented Senator Bennett, particularly, and other Senate members in general from thoroughly debating how the.Equal Pay Act was to interface with Title VII, and, more importantly, how it was to be interpreted. Speaking to the point, Williams and McDowell said that "Because cloture had been invoked before the amendment was introduced, there was almost no opportunity for debate or development of detailed legislative history in relation to the amendment's trea tment in the Sena te .,,65 The Bennett Amendment, Title VII's Section 703(h), in effect says that employers can differentiate on the basis of sex in determining the amount of wages or compensation paid or to be paid to employees if such is authorized by the Equal Pay Act. In his grand wisdom, Senator Bennett introduced what subsequently became Section 703(h) to avoid the conflicts with the "wholesale" insertion of the word sex in Title VII and the Equal Pay Act. As the Senator explains: [W]hen the civil rights bill is under consideration, in which the word 'sex' has been inserted in many places,. I do not believe sufficient attention may have been paid to possible conflicts between the wholesale insertion of the word' sex' in the bill and in the Equal Pay Act. The purpose of my amendment is to provide that in the event of conflicts, the provisiog6 of the Equal Pay Act shall not be nullified.

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Consequently, since the enactment of the 1964 Civil Rights Act, legal scholars have debated whether 291 the Bennett Amendment incorporates the Equal Pay Act's strict requirement that jobs show substantial equality, or whether it authorizes Title VII sex-based pay discrimination suits only after the provisions of the Equal Pay Act have been satisfied. On June 12, 1964, by a voice vote of Senate members, the Bennett Amendment was given acceptance and incorporated into Title VII as Section 703(h).67 On June 17, 1964, the Dirksen-Mansfield substituted civil rights bill, with its incorporated eighty-seven amendments, was given Senate approval by a final vote of 76 to 18. Thereupon, the measure was referred to the floor of the u.S. House for its members' consideration. House members were asked to pass the civil rights bill as amended by the Senate. On July 2, 1964, after nearly one hour of debate, H.R. 7152 was approved. The approval came with no further major amendments or revisions to the proposed legislation than those interjected by Senate members. The newly-enacted law passed the u.S. House by more than a two-to-one margin, 289 to 126.68 In keeping with his previous commitment to do everything in his power to bring about the

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292 reality of a civil rights law, President Lyndon B. Johnson signed the legislation into law the same day.69 In summary, a commentary on the measure's legislative-history recaps the overall treatment of the Civil Rights Act of 1964, as it was handled by both Houses of the Federal Congress: According to the records, the measure was considered and debated by the House Judiciary Committee 22 days, by the [House] Rules Committee seven days, by the House six days, and by the Senate 83 days. The extended debate in the Senate hours, 1 minute, and 37 seconds. Whe.n the sex amendment and the one put forth by Senator Bennett were added to Title VII's provisions, their legislative histories were lacking. The reason why the was has already been discussed. The addition of the sex amendment to the civil rights employment statute, on the other hand, was discussed with a greater magnitude than the Bennett Amendment. Despite this, however, the Senate was still not allowed the exhaustive debate on the topic which could have served to offer something substantive about the amendment's prohibitory employment aspects. For example, though the criterion of sex makes it an illegal factor upon which an employment consideration can be based, the true meaning of sex discrimination and exactly what constitutes it is devoid of

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293 legislative history in Title VII. For nearly two decades, federal courts have grappled with the merits of this legal question. In similar fashion, the same can also be said with regard to the Bennett Amendment and the Equal Pay Act's application to Title VII. Though federal courts still wrestle with attempting to legally arrive at a operationalized definition of sex discrimination, this is no longer required of the bodies with regard to the Bennett Amendment's relationship to Title VII. The primacy of this legal issue was resolved in 1981 when the Supreme Court of the United States passed upon the question. But long before this, in 1965, Senator Bennett found it necessary to provide a retrospective statement regarding the extent of the relationship the Bennett Amendment intended to foster between the Equal Pay Act and Title VII. In this regard, the Senator's response was prompted by the contents of a message contained in a law review artic1e.71 In his own words, Senator Bennett prefaces his remarks by commenting on the prevailing confusion surrounding the signjficance of the Bennett Amendment and the interrelationship of the two statutes. He states: Now I find myself, nearly a year later, with the responsibility of clearing up the confusion thus inadvertently created.

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Simply stated, the amendment means that discrimination in compensation on account of sex does not violate Title I unless it also violates the Equal Pay Act. It appears that what Senator Bennett meant on June 12, 1964, when he first introduced the Section 294 703(h) amendment, is that sex-based compensation suits are to be afforded no legal deference under Title VII unless the violations are also proven to be violative of the Equal Pay Act. Stated differently, from the issue's post-perspective view, according to Senator Bennett, before an aggrieved party can prevail on Title VII allegations that the unequal compensation results from sex discrimination, equal work must be proven. This is because, as the Senator stated retrospectively, "discrimination in on account of sex does not violate Title VII unless it also violates the Equal Pay Act." The inclusions of the amendments to add sex to Title VII, by Congressman Smith, and the one the Bennett Amendment, by Senator Bennett, are central in understanding how federal courts have tried to deal with the controversial comparable worth problem from a legal viewpoint. On that note, it is appropriate to shift directions and analyze comparable worth within the legal framework of Title VII.

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295 Comparable Worth and. Title VII The legal merits of the equal pay for equal work value doctrine formally confronted the federal courts in 1978. That is the year the nation's first so-called "comparable worth" lawsuit was litigated in federal court, in Denver, Colorado. Since then, the legal merits of the undervaluation and undercompensation of women's work and wages, based on the pretense of sex-based pay discrimination, have been before the federal bar on numerous occasions. During the period In which Title VII-based claims of sex and unequal pay for equal job worth have been litigated in the national courts, the judicial bodies have been extremely reluctant to open up new avenues to establish legal precedence with regard to the comparable worth matter. Their policy in this respect has adhered to the rationale that Congress made no provisions for Title VII recoveries based exclusively on sex and unequal compensation in dissimilar male-female job value situations. the rationale put forth by the federal courts, Title VII claimants have been able to recover in employment discrimination cases when one or more of three elements are proven under the statute: disparate

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296 treatment, disparate impact, and intentional discrimination. The substance of what comprises the first two was articulated by the Supreme' Court in a case in which the U.S. Department of Justice sued the Teamsters Union for engaging in an alleged variety of d .. 1 73 lscrlmlna ory emp oyment prac Ices. The dispara te treatment theory, said the majority Court members, "is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin." The second type, employment discrimination resulting in disparate impact, said the Court, involves employment practices that are fac iall y neutral in .the ir trea tment of different groups but that in fact fall more harshly on one group than another cannot be justified by business necessity. Aside from the two, intentional discrimination is the third element federal courts have used to almost unilaterally accept as proof that an employer has engaged in impermissible employment acts which are proscribed by the Title VII statute. In this regard, employment acts, practices, or conduct, whether they result in one's disparate treatment or impacts them disparately, or both, can be intentional or unintentional. Intentional employment discriminatory

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297 practices are willful. On the other hand, unintentional ones may result from acts being neutral in form, but discriminatory in application. Both are intolerable under Title VII. In proving that an employer's employment acts, practices, or conduct have brought about an aggrieved party's disparate treatment, or disproportionately impact them, the complaining party carries the burden of proof. The foundation for understanding the handling and treatment of sex-based pay claims by the federal court goes back to the interfacing of the Equal pay,and Title VII statutes, when the former was included in the latter. It began with the Equal Pay Act and its equal work and Congress' rejection of the of compar"able .character determination. Relative to Title VII and sex and unequal pay for equal job worth claims, the Bennett Amendment mandates that the suing party in Title VII sex-based wage discrimination claims must show that the jobs at issue are substantially equal. For the most part, the federal courts have adhered to this posture. This is important in understanding why the federal courts have yet to give deference to the comparable worth doctrine as a legal theory. Comparable worth sex-based discrimination claims involve dissimilar job comparisons for pay purposes.

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The Equal Pay Act's equal work standard precludes job comparisons of this type and, consequently, such comparisons are not exclusively entertainable under' Title VII. 298 At the chapter's beginning, the assumption was made that present legal federal policy is inadequate in dealing with sex and pay discrimination based solely on job value comparability. Federal courts take the position that they have no Congressional mandate to deal with the problem's legal logistics. And, for this reason alone, it appears that national comparable worth legislation is needed. There seems to be a need for it in addressing the ever-present reality that employed women are denied equitable work value wages. Prior to 1981, federal courts entertaining Title VII pay claims based on sex and jobs of equal value have mandated that the" suing individual, or individuals, prove that the jobs at issue are substantially equal in skill, effort, responsibility, and working conditions. This is because the EPA requires that the legal standard be satis-f-ied and, further, the requirement is incorporated into Title VII vis-a-vis the Bennett Amendment, or Section 703(h). Relative to the Equal Pay Act, the statute requires an employer to pay the sexes equal wages for those jobs in

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which the skill, effort, responsibility, and working conditions are equal, or substantially equal. This is how the law defines equal work situations. Employers must pay equal wages to men and women doing equal work. It is lawful, however, for an employer to pay a male and female doing the same work different wages as long as such action can-be justified by one of the Equal Pay Act's four exceptions. As previously discussed, although Congress rejected the comparable work standard and accepted the equal work one instead, to that body, the term "equal" literally meant job content which involves equal skill, effort, responsibility, and is performed under similar working conditions. By and large, in litigating equal pay cases, federal courts have relied on the definition of the word "equal" that Congress adopted when it enacted the Equal Pay Act. In this respect, their application of the requirement was almost absolute until a different standard was articulated in a court case. The case was tried in a federal court. The male and female jobs at dispute were almost equal. The trial judge hearing the matter said that the jobs did not have to be absolutely equal but, rather, substantially equal.75 As has been stated, the Department of Labor was originally assigned administrative and enforcement

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300 jurisdiction over the Equal Pay Act. This, however, changed in 1978 when Congress enacted the Civil Service Reform Act.76 On January 1, 1979, by virtue of the Civil Service Reform Act, the jurisdiction over the administrative, enforcement, and investigation into alleged or actual violations of the EPA transferred to the Equal Employment Opportunity Commission (EEOC). The EEOC is required to prove claimed violations of the Equal Pay Act in the same fashion the Labor Department did. The Equal Pay Act did not change in context: only the responsibility for its administrative aspects changed. In equal pay disputes, then, the EEOC is still to legally substantiate that j6bs in question are equal in skill, effort, responsibility, or working conditions.77 Williams and McDowell point out, "If one element is not shown, the jobs are not considered equal.,,78 In another respect, and one central to the comparable worth determination, the Equal Pay Act affords no legal recovery if the jobs at issue are based upon work that is dissimilar in skill, ff t 'b'l't k' d" 79 e or, responsl y, or wor Ing con Itlons. To further understand the relationship between the Equal Pay Act's equal work standard and the comparable worth problem, a separate examination of EPA and Title VII is necessary. Briefly, in relation to

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301 the Equal Pay Act, it has already been established that a suing party must legally show that the contested jobs are equal, or substantially equal in job content skill, effort, responsibility, and working conditions. Because of its incorporation into Title NIl, the Bennett Amendment makes compulsory the same legal standard of proof demonstrated in Title VII claims of sex and unequal pay for equal job worth. For example, in a Title VII sex-based. wage discrimination lawsuit brought by female a i rl ine pursers, the federal di str ict court found that the employer had discriminated against the females on the bases of their sex and in their pay. However, the suing parties were not allowed to go forth with those aspect of their claims until the equal work standard had been proven.SO The airline employer had paid its male and female pursers at varying wage differentials, though the jobs were substantially similar. To a large extent, the tight enforcement of the Equal Pay Act's strict equal work requirement by the federal courts durjng the 1970s made it essential that the Laffey plaintiffs prove that their jobs were substantially equal in every respect to the male pursers'. As stated, the Bennett Amendment was added to Title VII to circumvent potential conflicts between the Equal Pay Act and Title VII. It was also during

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302 this same time that the federal judiciary began to wrestle with the Bennett Amendment's interpretation as it applied to Title VII. What emerged from the difficulty in grappling with the problem was the dichotomy of whether or not the Equal Pay Act and Title VII should be read and construed as being in harmony with one another.8l What prevailed was the legal posture that the two statutes should indeed be perceived as harmoniously balanced. The rigidity of this rule, that is of a Title VII-based claimant alleging sex and pay discrimination prove equal work as required by the Equal Pay Act, would deal severe legal blows to comparable worth enthusiasts, until 1980. Lemons vs. City and County of Denver The case of Lemons v. City and County of Denver was the first to be dealt a legal setback. It was the first so-called "comparable worth" case to be litigated in the Nation.82 The Lemons case focused the national spotlight on the comparable worth controversy. Employed by the City and County of Denver, female nurses sued the municipality, alleging that their jobs were undervaluated and undercompensated as a result of their sex, and from being situated in a separate city job classification for pay purposes. In other words,

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303 the nurses claimed that they were classified by the City and of Denver in a distinct job category, and were paid significantly lower relative earnings than men who were employed by the municipality and classified differently. The gist of the nurses complaint was that the classification systems maintained by the City and County of Denver discriminated against them on the basis of their sex and in their paid wages. Among other. facets of their complaint, the nurses claimed that the City and County of Denver's employment practices were violative of Title VII. Moreover, another important aspect of their contention was that Title VII prohibited illicit job classifications structured on the criterion o gender. For pay determination purposes, the n'urses' classification fell outside the city's professional one. Lemons plaintiffs attempted to prove that the City and County of Denver's job practices of segregating them into a separate job classification on the basis of their sex, and devaluing their wages, were unlawful under Title VII, since the statute's language make such classifications unlawful. In this regard, also, the nurses sought to prove that their suspect classification had resulted in their disparate treatment and, likewise, in their receipt of

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disproportionately low wages. The court rejected 83 plaintiffs' disparate impact argument. It was also the court's assessment that the City and County of Denver's personnel actions and its manner of classifying the nurses had not resulted in their disparate treatment. Based on the Bennett Amendment, the interplay of the Equal Pay Act and Title VII came to bear on the trial. Plaintiffs failed to satisfy the court that equal work existed between their jobs and those held predominantly by males in the city's other job classifications. The latter's jobs were classified in the municipality's General Administrative Services job category. In relation to the nurses' classification, plaintiffs fell short of proving that their positions exemplified equality of skill, effort, d k d" 84 an wor Ing con Itlons. Judge Fred M. Winner, the jurist hearing the case, commented: The equal pay for 'comparable work' concept had been rejected by Congress in favor of 'equal work' in 1962. The Bennett Amendment is generally considered to have the equal pay/equal work concept apply to Title VII in the way as it applies in the Equal Pay Act. Consequently, the "equal work" standard became an insurmountable barrier that the Lemons plaintiffs did not surmount.

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305 Though there were some interesting legal arguments embodied in the Lemons case as it related to the comparable worth pay issue theme, the economic importance of this matter would have been underscored had the suing parties prevailed. In the final analysis, Lemons plaintiffs were unsuccessful because they failed to prove intentional sex and pay discrimination on the part of the City and County of Denver. In this context., the suing parties attempted to substantiate their claimswithout providing the court wi th evidence of direct intention. Had Lemons plaintiffs been successful in the lower federal district court, or on appeal, the case itself would have been a landmark judicial victory for comparable worth. In this light, its economic implications throughout the Nation would have been In the first place, the federal judiciary would have placed itself in the position to strike down the unlawful employment situation in which employers segregated women into separate job classification by sex and, hence, undervaluated and undercompensated their work and wages. Continuing this line of thinking, moreover,.a favorable court decision would have sanctioned job comparability for the sake of determining the relative comparable worth of the sexes'

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306 work posi tions.. The combination of the two would have culminated in the payment of about one million dollars in back pay and other 'monetary adjustments by the City and County of Denver to plaintiff-nurses. But this did not happen, primarily because, as the trial judge said in the Lemons case, Congress precluded such action by the mandates inherent in the Equal Pay Act's and Title VII's policies. As to the estimated economic costs not only of the Lemons consideration, but of the 'entire comparable worth concern, nearly $200 billion would be required to remedy the past and present employment 86 problem of undercompensated employed females. Indeed, as the trial court judge also said with regard to the Lemons matter, lithe case was 'pregnant wi th the possibility of disrupting the entire economic system in the In this sense, there remains little doubt that the expense to eradicate sex-based employment compensation would be exorbitant. Despite this, however, such costs should not stand as a continual justification for perpetuating the ongoing aspect of marketplace occupational sex segregation and wage discrimination.

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307 Other Title VII Cases Aside from the Lemons case, there have been others before the federal judiciary in which plaintiffs alleged Title VII sex-based pay employment discrimination. Again, the interplay of the Equal Pay Act and its relationship to Title VII were at the core of these legal disputes. In one instance, a female college professor sued her educational institution, claiming under Title VII that she and other similarly-situated females were paid lower relative wages than male professors, though each performed work 88 that was of a comparable nature. As a class, the female professors sought to be paid equal wages relative to that the college paid to male professors doing substantially the same work. The complaintant, Mrs. Keynes, failed to satisfy the Equal Pay Act's requirement that the jobs at issue were substantially equal. Though the case involved other allegations pertinent to Title VII, plaintiff was not allowed to proceed with those aspect of the complaint since she failed to prove that the jobs were equal. In an action of the kind, the plaintiff must prove that the jobs are equal. If successful in this regard, it then becomes encumbent upon the employer to

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308 rebut the claim. Such rebuttal is accomplished by establishing that the unequal pay differential is based on one of the Equal Pay Act's four defenses. If the employer is unsuccessful in this respect, then the suing party is allowed to proceed with his or her Title VII claims. A Title VII claim must substantiate to the court that the inequitable employment practice, or practices, results from discrimination based on their race, color, national origin, religion, or sex. If the aggrieved party prevails on anyone or more of these bases, then the burden of proof again shifts to the defendant, who is then required to articulate some legitimate business necessity or justification for the discriminatory conduct. Following such evidentiary offering by the the suing interest is then allowed another opportunity to prove to the judicial body that the defendant-employer's justification is but a mere pretext for the proven employment disparities. In a Title VII sex-based pay discrimination case brought against the University of Iowa, plaintiffs sued the educational institution because the institution's own evaluation had shown that the jobs of clerical workers were equal in value to those of the school's physical plant workers.89 The equal ratings

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309 of both classifications resulted from the university's re-evaluation of its work positions. However, in its re-evaluation of .the physical plant workers' jobs, the university had lowered the wages for these positions. The error was revealed by a local job survey that showed the worth of physical plant workers' jobs to be of greater value than that established by the university's re-evaluation study. Accepting the local survey's findings, the university increased the pay of the physical plant workers' job position. Correspondingly, it did not upwardly adjust the wage and salary rates of the clerical positions. Christensen, the plaintiff, brought a class action suit against the university, claiming sex and pay employment discrimination under Title VII. The trial court ruled against the plaintiff on the grounds that she failed to establish that a case of sex discrimination existed. Moreover, the lower court acknowledged that the university's action in leaving the clericals' pay at the evaluated level did not constitute intentional discrimination on their part. On appeal, the u.s. Court of Appeals for the Eighth Circuit upheld the lower court's ruling. In addition, the appellate court spoke about the Bennett Amendment as it applied to the case. It said that, in terms of

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310 the application of the Bennett Amendment and plaintiff's Title VII allegations, it would only be justified in ruling favorably if the clerical workers, first, proved that a case of discrimination or, second, if the university had used the local labor market wage survey as a justification for paying men for their work, but had not done the same for' their female employees. The significance of the Christensen case is that marketplace, considerations may be used as legal defenses in Title VII claims of sex discrimination and unequal compensation. Nevertheless, when Title VII claims are 'based on equal pay considerations, the complaints in these situations must still satisfy, the Pay Act's requirement that the contested jobs are substantially equal in skill, effort, responsibility, and working conditions. The 1980s earmarked a dramatic change in the federal courts' staunchly enforced legal policy that Title VII sex-based pay discrimination show equal work, as mandated by the Bennett Amendment and the Equal Pay Act. Such a weakening of the courts' posture in this regard revitalized the hope of comparable worth enthusiasts. By 1980, the Bennett Amendment's interpretation, in applying the Equal Pay Act's provisions to Title VII, formulated the gist of the

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311 legal controversy. Confusion prevailed throughout the national court system. The dispute focused on whether federal courts hearing Title VII sex-based pay claims should interpret the Bennett Amendment as embodying the Equal Pay Act's four affirmative defenses or, alternatively, whether courts should apply it in a manner that precludes plaintiffs from going forth with their Title VII allegations until they have satisfied the EPA's condition. In this context, concerns focused on whether federal courts should afford the Bennett Amendment the "incorporative" or "restrictive" view, respectively. International Union of Electrical Workers vs. Westinghouse The first legal blow effected upon the Bennett Amendment's restrictive view came in 1980. It was delivered in the Title VII sex and pay discrimination lawsuit brought against Westinghouse Electric Corporation by the International Union of Electrical Workers (IUE).90 The union initiated the suit on behalf of its members. Plaintiffs in the IUE case alleged in their complaint that the company had "willfully and intentionally" discriminated against its female workers in their earned compensation. The union

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312 did not allege in complaint that the job positions of the company's women workers were equal to those of its male employees, as required by the EPA's restrictive interpretation. Since the union did not assert the "equal work" allegation in its Title VII-based complaint, westinghouse attempted to get the claims dismissed. However, in curing what appeared to have been a faulty legal complaint initiated by the union, IUE claimed that it was not the union's intent to prove that the jobs in question were equal, but that they were unequally compensated as a consequence of intentional sex discrimination on Westinghouse's part. The lower federal district court held that since the Bennett Amendment incorporated the Equal Pay Act's strict requirement that jobs show substantial equality, plaintiffs had to prove that the disputed work was substantially equal in skill, effort, responsibility, and working conditions. Further, it also held the Title VII did not prevent sex discrimination in the payment of one's wages or compensation, regardless of the classification, unless equal work could be shown. Hence, the union lost the case in the lower court. On appeal, the case was remanded ahd sent back to the lower district court for further disposition. The appellate court attacked the illogical basis of the

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313 Bennett Amendment's restrictive view.91 Congress, said the court, clearly intended to prohibit discriminatory emp oyment JO c aSSl lcatlons on t e aS1S 0 sex. The court made the following analogy: "Title VII prohibits an employer from paying more per hour to welders than plumbers if the reason for the employer paying higher wages to the welders is that the majority of welders are Protestants and that the majority of the plumbers are Catholic. Such practice directly violates Section 703(a) of the Civil Rights Act which prohibits the classification of any employee in a way which would deprive that individual of employment opportunities [including higher wages] because of that race, religion, sex, or national orlgln. In this respect, the appellate court's ruling in the case dealt a severe blow to the Bennett Amendment's restrictive view and application. The judge in"the lower federal district court had done just the opposite. Hence, the disposition of the IUE matter by the u.S. Court of Appeals for the Third Circuit was construed as the first instance in which a federal court had ever actively endorsed the protection of

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undercompensated females in sex segregated jobs. It did this by relaxing the Equal Pay Act's strict "substantially equal" requirement. When the case was heard again by the lower court, IUE proved that Westinghouse operated a discriminatory employment compensation system that paid its employed females, employed in sex segregated jobs, lower wages than Westinghouse paid its male employees. Westinghouse appealed the matter to tne Supreme Court, but later settled the affair out of court. Gunther vs. County of Washington, Oregon 314 The next matter that came before the federal courts and had an enormous impact on the Bennett Amendment's restrictive interpretation was Gunther v. County of Washington (oregon).94 In the final analysis, the decision rendered in the Gunther case was, in all likelihood, a factor which may have persuaded Westinghouse to reach an out-of-court agreement with rUE. The Gunther case dealt squarely with the Bennett Amendment and its restrictive interpretative application. Among other things, the Gunther affair clarified the controversy surrounding the Bennett Amendment's interpretation relative to the

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relationship between the Equal Pay Act and Title VII. From a legal viewpoint, it did this once and for all. 315 The facts of the case arise from a situation in which female jail matrons employed by the County of Washington, Oregon, sued that State's administrative arm of government on Title VII-based grounds. The matrons alleged that the county had intentionally undervaluated and undercompensated them relative to what it paid male guards,. ,Like IUE plaintiffs, the petitioners in Gunther also failed to state in their legal pleadings that the female matron jobs' were substantially equal to those of male guards, as the Equal Pay Act requires. In order to remedy, again, what appeared to have been a deficiency inherent in their Title VII complaint, Gunther plaintiffs argued that, even if the female matrons' jobs were not equal in content when compared with the male guards' work positions, their wage-based pay differential resulted from the county's engagement in sex discrimination. The county paid women guards about ninety-percent of what male guards earned. In the lower federal district court, the trial judge interpreted the Bennett Amendment as requiring that the female matrons substantiate the Equal Pay Act's equal work standard. In other words, since

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316 plaintiffs' sex-based compensation discrimination claim was predicated on Title VII, they had to prove that their jobs were substantially equal to those of their counterparts. The court found that the jobs were not equal and, hence, dismissed the matrons' complaint. The female guards appealed the lower court's decision to the u.s. Court of Appeals for the Ninth Circuit. On appeal, the Ninth Circuit Court agreed with the lower court that the male and female guards' jobs were not equal. However, the appellate body adopted a different perspective'with regard to the Gunther plaintiffs' Title VII claim of sex discrimination. In delivering the most severe setback to the Bennett Amendment's restrictive application, the court asserted that the measure merely "incorporated" the EPA's enumerated defenses and, consequently, the Act itself does not limit Title VII's scope. In this sense, the court was saying that Title VII claims of sex-based pay discrimination are not "authorized" by the Equal Pay Act's restrictive context. The lower court had applied the Bennett Amendment in such a fashion that it precluded the matrons from proceeding with their Title VII-based sex and pay allegation. The appellate court further recognized that Title VII's scope is far broader than that of the Equal Pay Act. As a result,

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317 the appellate court ruled tha"t the female matrons' Title VII rights may have been violated by the County of Washington, if, in fact, they could demonstrate that the ensuing compensation disparity was due to sex discrimination. Plaintiffs had stated in their legal complaint that the undervaluation and undercampensation of their work resulted from the county's sex discriminatory practices. The appellate court further rationalized that, through Title VII's broadness, Congress intended for the civil rights employment statute to reach infractions of sex and pay contentions, far exceeding those emanating from the Equal Pay Act. Hence, in relying on Title VII statute' wide purview in circumventing the Bennett Amendment's effectiveness and, concurrently, abrogating the EPA's restrictive interpretation as it related to the case, the majority of the appellate court's jurists reasoned: If we were to limit Title VII's protection against sexually discriminatory compensation practices to those covered by the Equal Pay Act, we would in effect insulate other equally practices from reVIew. The County of Washington appealed the appellate court's decision to the Supreme Court of the United States. The High Court agreed with the Court of Appeals for the Ninth Circuit. In this respect, the

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318 Supreme Court ruled that a Title VII sex-based wage discrimination claim was not precluded by the Equal Pay Act simply because plaintiffs' complaint failed to state equal work job performance. The Bennett Amendment's restrictive versus nonrestrictive interpretation created the legal issue's focal point. In ruling on it, the Supreme Court said: The Bennett Amendment does not restrict Title VII's prohibition of sex-based wage discrimination to claims for equal pay for 'equal work.' Rather, claims for sex-based wage discrimination can also be brought under. Title VII even though no member of the opposite sex holds an equal but higher paying job, provided that the challenged wage rate is not exempted under the Equal Pay Act's affirmative defenses as to wage differential attributable to seniority, merit, quantity or quality of or any other factor other -than sex. In emphasizing the narrowness of the issue before the High Court97 Justice Brennan, writing the Court's majority opinion, said that the jail matrons' claim "is not based on the controversial concept of 'comparable worth.' ,,98 Previously, the Ninth Circuit had also declared that "its decision did not substitute a 'comparable' work standard for the previous 'equal' ,,99 wor requlrement. In its analysis and handling of the Gunther case the Supreme Court discussed the legislative histories of the Equal Pay Act and Title VII. With

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319 respect to the latter's, the jurists regarded the vagueness of Title VII's legislative history, in relation to the Bennett Amendment and its relationship to the statute, to be of little help in handling that aspect of the Gunther claim that was before the bar. 100 As to the Equal Pay Act's legislative history and Congress' intent in not wanting the Federal Government to delve into an employer's dissimilar job comparisons, the High Court said: the legislative history of the Equal Pay Act clearly reveals that Congress was unwilling to give either Federal Government or the broad autho1brY to determine comparable wage rates. The High Court then addressed the nexus between the Equal Pay Act, Title VII, and the Bennett Amendment. With regard to the relationship between the Equal Pay Act and Title VII, the question the Court decided it had to answer in the case was "whether Congress intended to completely turn its back on the 'equal work' standard enacted in the Equal Pay Act of 102 1963 when it adopted Title VII only one year later." In response to its self-asserted consideration, the Court said that it "answers the question in the affirmative," concluding that "Title VII must be read more broadly than the Equal Pay Act ... l 03 The Court then spoke about the nature of the two statutes. It

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320 averred that the Equal Pay Act is the more specific of the two because it deals solely with sex-based wage d 104 I scrlmlna Ion. Title VII, on the other hand, said the Court, "is a general discrimination provision, passed with virtually no consideration of the specific bl f b d d'" t' ,,105 pro ems 0 sex-ase wage lscrlmlna Ion. Here, the Court was presented with a real, unconventional legal problem. It was faced with the issue of trying to reconcile the provisions of a specific statute, the Equal Pay Act, with those of a general one, the Title VII statute. By not giving preference to a specific statute over a general one, the majority Court ignored its repeated adherence to the doctrine of in pari materia. Namely, that "where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.,,106 In ruling that Title VII sex-based pay discrimination claims were not limited by the narrow provisions of the Equal Pay Act's equal work standard, the Supreme Court achieved its desired outcome. It accomplished this by abandoning the in pari materia doctrine. In doing so, one can infer from the Court's handling of the matter that the broader public policy interest encompassed in the general statute made essential the weight afforded it

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as opposed to that given the specific statute. As a result, the Equal Pay Act and Title VII, the former being the specific statute' and the latter being the general statute, for judicial expediency, were not harmoniously balanced in Gunther. In his dissenting opinion, Justice Rehnquist states: In order to the [sic] reach the result it so desperately desires, the Court nearly solves the problem of this contrary legislativel07 history by simply giving it 'no weight.' In other words, according to Justice Rehnquist, the majority Court members arrived at the,ir decision by giving no consideration whatsoever to Title VII's legislative history as it pertains to that aspect of the Bennett Amendment and, especially, the latter's 1965 Justice Rehnquist elaborates: The Court blithely ignores all of this legislative history and chooses to interpret the Bennett [A]mendment as incorporating only the Equal Pay Act's four affirmative defenses, and not the equal work requirement. 321 Gunther was decided by a 5-4 vote margin. The closeness of its outcome, however, did not establish an overwhelming precedence. Be that as it may, the majority Court in Gunther did take the judicial opportunity to lay down public policy with regard to Title VII's unrestrained parameters as intermingled

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322 with the Equal Pay Act's provisions. The Court's action in Gunther made it apparent that Title VII's broad scope, in embracing sex-based claims of wage discrimination, was not to be limited by the Equal Pay Act's equal work standard upon the presentation of direct evidence which may, presumably, lawfully demonstrate that an employer engaged in intentional employment discrimination. What the Court did and did not decide in the Gunther case is put" forth in its own words: We do not decide in this case the precise contours of lawsuits challenging sex discrimination in compensation under Title VII. It is sufficient to note that respondents' claims of discriminatory undercompensation are not barred by [Section] 703(h) of Title VII merely because respondents do not work "equal to that of male jail guards. AFSCME vs. State of Washington The sex-based employment discrimination lawsuit filed by the American Federation of State, County, and Municipal Employees (AFSCME) and the Washington Federation of State Employees (WFSE) appropriately, introduces what has been heralded as the most recent so-called "comparable worth" victory. The suit was filed by the two unions on July 20, 1982. It was brought on a class-action basis and covered more than

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323 15,000 workers, primarily employed females who worked in the heavily-occupied women's job classifications in the State of Washington. Plaintiffs sought relief from the federal district court on, mainly, two contentions. First, they wanted back pay damages which the State's female employees had sustained from the longstanding discriminatory personnel practices. Second, the Title VII-protected class of employed women petitioned the district court for injun.ctive relief from the State's past and present discriminatory practices. In this regard, they sought to enjoin the State of Washington from engaging in sex and discriminatory pay practices. Plaintiffs also sought judicial supervision over the State's implementation of a court-imposed, nondiscriminatory, compensation system. The legal case against the State of Washington is a monumental comparable worth affair.10g Of the string of so-called comparable worth cases prior to this time, it and the Lemons case are the only of their kind to explicitly allege sex segregation and wage discrimination under the Title VII Civil Rights statute in their complaints. In this respect, in its legal pleadings, the AFSCME case superseded those allegation put forth in Christensen, IUE and Gunther. In this regard, the Lemons case comes the closest to paralleling the lawful merits embraced in the lawsuit

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against Washington State. Lemons did this by attempting to legally substantiate to the lower federal district court and the u.s. Court of Appeals for the Tenth Circuit that the City and County of Denver's resultant personnel practices of female job segregation and unequal compensation had a disparate impact on the nurses. Not only was the trial judge in the AFSCME case overwhelmingly convinced that the State-of Washington's personnel had a disparate impact on its underpaid female employees working in sex segregated jobs, but oe was also persuaded that the same acts had likewise resulted in the, females' intentional, disparate treatment. In the AFSCME comparable worth case, the AFSCME and WFSE unions were able to prevail in the federal district court against the State of Washington primarily because of the evidence presented at trial. There was overwhelming evidence that the State of Washington had intentionally engaged in overt acts of sex and compensation discrimination. Washington State officials had actual knowledge that the two personnel systems it operated discriminated in the earned wages of its females employed in sex segregated job classifications. Further, the trial court record also

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325 reflects that the Washington State government knew, for at least ten years or more, that sex and pay discrimination were pervasive in its dual merit systems. Yet, members of the State's legislative body did not attempt to substantively the known, discriminatory compensation problems until after the unions filed suit. And, then, their actions in appropriating only $1.5 million as a comparable worth pay adjustment were, acc.ording to the judge, token.110 At least ten years prior those the Washington State Legislature and the Governor had taken concrete steps to make sex discrimination in their public employment system unlawful. In 1971, the Washington State Legislature passed an amendment to the State's antidiscrimination law making the criterion of sex an unlawful job factor upon which to base one's employment. Dan Evans, then Governor, signed the measure into law in May of that same year. The enactment of the 1971 sex amendment into the Washington State Civil Rights Employment Statute, and the weight given this evidentiary event by the trial court, was but one of the many items plaintiffs submitted to prove that the State of Washington intentionally engaged in employment

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326 discrimination. On the whole, the legal sufficiency of the AFSCME plaintiffs' evidentiary offerings at trial, basically, proved two things against the defendant, Washington State. First, they proved that state of Washington officials knew about the well-documented employment situation that undercompensated the State's female employees; women who worked in job classifications equal to, or of more value than, those worked by men. Second, the State knew about the sex-based pay discrimination for almost ten years, officials did little or nothing to correct the unlawful employment practices. As the trial record notes, the proper way for State officials to correct the pay equity problems would" have been to make the necessary appropriation, not a mere "token" one, to adjust upwardly the wages of the underpaid females. "Although these were but two of the many evidentiary offerings at trial, other appeared to be just as substantive in the proof of plaintiffs' case. In this respect, the trial judge pointed out in the court's opinion that "the record is [was] replete with contemporary letters, and reports. ." which reflected that the State of Washington knew about these employment V10 a lons. These violations were known the State's chief executive officers, lawmakers, pnd other appointed and senior officials as early as 1971, and

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continued to be formally known to these individuals well beyond that time. In this regard, the documented testimonials speak for themselves. They cover a wide range of things, ranging from the solicitation of gender-based newspaper ads for employment, to virtual inaction on the Sta te' s part in correcti ng the problems. For example, the trial judge noted that the State of Washington was "del ibera.te" in its running of sex-oriented employment advertisements in one of the State's newspapers. Such activity, the court further 112 obs'erved, dated back to the 1950s. The purpose of the ads was to procure prospective job incumbents for 327 hire in the State's employment system. The problem with the employment ads was that they were explicit 1n their appeal for "males" or "females" to become employed in exclusively male-or-female job classification systems. The judge states: Plaintiffs [sic] [Defendant] offered no evidence that sex was a bona fide occupational qualification for the jobs advertised or that they were not responsible for of these segregated classi fied ad s. Eleanor Holmes Norton, former Chairperson of the u.S. Equal Employment Opportunity Commission, further testified that: employer actions, such as use of segregated classified ads, have the expected effect of

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creating a segregated workforce. The chronology goes on. The judge cited as more evidence a letter written by Leonard Nord, the Director of Washington State's Department of Personnel. The letter was dated in December, 1971, and it was sent to other agency officials. The letter represented the Department of Personnel's posture with regard to the State's newly enacted amendment to its employment -law, a law that banned sex as a determinative employment factor. The State had adopted the new sex provision in May, 1971. In part, it reads: this new amendment is broad in its impact, and its passage by the legislature not only a change in attitudes about the traditional roles of men and women also frsognizesthe needs and realities of thlS age. Then, there was the Congressional amendment to Title VII of the Civil Rights Act in 1972. That change to the federal employment law occurred on March 24, 1972. It thereby became unlawful for state and local governments to discriminate in employment with regard to an individual's race, color, national origin, religion, or In relation to the 1972 Title VII amendments, as it applied to the job discrimination which the court said was known to State officials, the trial judge also pointed out that Washington State had

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to have known that the overt job biases existed and, hence, were in violation of the act.117 The string of evidence goes even further: 329 letters written to and from Governor Daniel J. Evans to Norm Schut; letter from the Governor to the State's DOP and HEPB personnel directors, the job evaluation study of these agencies; studies conducted by a hired consultant; the Governor's press conference, and the inclusion and exclusion of comparable worth budgetary appropriations, among others. In 1973, Norm Schut, the former director of the WFSE, wrote a letter to Governor Dan Evans advising him of the perpetuation of discriminatory employment conditions, which the two State personnel agencies continued tQ promote through their policies and practices. The letter was dated November 20, 1973. In it, ex-Director Schut states: [T]he Boards [DOP and HEPB] have perpetuated the discrimination against women in salary setting that permeates through the and other governmental unlts Schut's letter to the Governor is among the many evidentiary items that the court said provided the State of Washington with sufficient grounds to reasonably believe its two job classifications systems were discriminatory. In this respect, Governor Evans' reply appears to have provided even more support '-

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for the court's position. The letter, dated November 28, 1973, reads in part: If the salary schedules reflect a bias in wages paid to women compared to m7n, !gn we must move to reverse thls lnequIty. Governor Evan's instructions to the DOP and HEPB personnel directors actually led to what has, in 330 retrospect, been called the first comparable worth job --evaluation study. Its purpose was to determine the evidence and the exient 6f sex and wage discrimination in the State of Washington's two employment job classification system. As instructed, the DOP and HEPB personnel entities put into action Governor Evans' command to "move to reverse" the inequity of the known sex and pay biases against the State's female workers. During late December, 1973, and early January, 1974, the two personnel departments conducted a preliminary job evaluation study of some of the State's heavily-occupied male and female job classes. Such action was taken as the agencies' affirmative response to Governor Evans' correspondence of November 28, 1973. The pe+sonnel boards' actions were the first steps in what eventually resulted in the Nation's first pay equity study. The DOP and HEPB ended their joint job evaluation study in early January, 1974. As reflected

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331 in the trail record, the relevan t part of the agenc ies' statement in' this regard reads: There are clear indications of pay differences between classes predominantly held by men and those predominantly held by women within the State systems. Such differences are not due solely to job 'worth.' Further study is necessary to accurately determine the amount of salary and to which a 'correction' would apply. Norman Willis and Associates, a Seattle, Washington-based employment consulting firm, was hired by the State of Washington to conduct the comparable worth job evaluation study. The consultant group was procured as a result of the two boards' recommendation. By this time, reasonable certainty existed on the part of some key. Washington State officials that the extent of the female job segregation and wage discrimination' was more pronounced than was first regarded. This, too, is pointed out in the trial court record. The judge notes that" the c'oncern of the Evans. Administration throughout this period of time was the '1" t' f Ilf fd'" t' 11.121 e lmlna Ion 0 a orms 0 lscrlmlna Ion. As seen and heard through the "eyes" and "ears" of the court, the purpose of the Willis and Associates comparable worth job evaluation study was thusly: [T]o 'examine and identify salary differences that may pertain. to job classes .predominant1y filled by men compared to job classes predominately filled by women, based on job

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332 worth. Alternative suggestions disparities were to be provided. It is important to underscore the significance of what the trial judge did in asserting the purpose of the 1974 job evaluation study. This statement was not of his own making. This is important to understand because, had it represented his opinion, there appears to be little doubt that he would have been interjecting subjective judgment into the matter. In this respect, such may become--and typically do become--grounds for appeal to higher court. At any rate, the one hundred and twenty-one male and female job classes, as characterized by the court, were IIpredominantlyli concentrated lias 70% of one sex or the other.1I123 The judge further states that the seventy-percent "cut-off figure was the State's choice, State representatives participated on the trained evaluation committee and, in effect, the resultant worth of the evaluated job classes was arrived at by consensus."124 Lastly, in pointing out a noteworthy aspect about the report that emerged from the 1974 willis Study, the court took cognizance of the following facts: The 1974 report also found that the degree of discrimination increased as the job value increased. For jobs evaluated at 100 points, men's pay was 125% of women's pay. For jobs evaluated points men's pay was 135% of women's pay.

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333 Following the 1974 Willis and Associates comparable worth job evaluation study, other significant actions took place within the State's governmental channels. The first of these was a press conference held by Governor Evans in December, 1974.126 Cited by the trial court judge, the applicable part of it reads as follow: We found that there is, indeed, a general relationship which results in an average of about twenty percent. less for women than for males doing equivalent jobs I think that steps ought to be taken to rectify the imbal ance which does exi st There are two basic lines. One follows the practice for those positions filled primarily by males. The other by You can see the disparity which does exist. What Governor Evans was referring to in the last four sentences of this part of his press conference speech, in all likelihood, was a graph or some other pictorial aid that depicted the male-female earnings disparity.128 The years of 1975 and thereafter brought about more actions on the part of the State of Washington in its continued formal examination of that State's sex and wage employment discrimination problems. Nearly four months after Governor Evans' December, 1974 press conference, the two heads of the DOP and HEPB personnel were requested to provide legislative and executive

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officials with an "update" of the 1974 Willis and Associates job evaluation study.129 This report was viewed by the trial court judge in the following manner: The update computed the cost of eliminating discrimination by increasing the salary for all classifications with a given number of points to the average salary of the male classification with that number of job evaluation points. The update showed that the cost of equalizing salaries for jobs with the same number of points would be approximately 10 times as much for, female jobs as for predominantly male jobs. The following year, in 1976, Willis and Associates were again summoned by the state of 334 Washington to perform a follow-up job evaluation study. In the court record, this subsequent evaluation of the State's was referred to ,as the 1976 "update."13l Going beyond the 1974 study, the'1976 job evaluation included in its review additional predominantly male and female job classes. Its purpose is explained by the court: The express purpose of the study, pursuant to a decision by Governor Evans, was to 'establish a program leading to implementation of the study completed in September 1974.' With regard to the 1976 Willis update job study, the lower court judge further ascertained from the plaintiffs' evidence that: The update also evaluated 85 additional classifications and developed a formula for computing comparable worth rates of

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compensation based on a comparable worth salary line. The State continues the methodology developed by Willis. And, perhaps most pertinent to this, the trial court judge spoke about the evidentiary offerings in which, 335 in 1976 and in 1977, Governor Evans and his successor, Governor Dixie Lee Ray, respectively, included and canceled a $7 million comparable worth appropriation in the State's budget. Governor Evans had included this sum in the State' s budge.t to upgrade the wages of public female employees who worked in undervalued, undercompensated, sex-segregated jobs. The trueintent of what Governor Evans attempted to do represented a concerted effort on his part to affirmatively correct the proven job and sex-based pay biases in the State's two job classification systems. In the court's assessment of the recogni zed evidence in this regard, the judge stated: Governor Evans included a $7 million budget appropriation to implementation of comparable worth That fiscal action of the Governor's prompted more meaningful conduct to be taken by the Washington State Personnel Board in relation to the comparable worth implementation problem. The board's demeanor was spelled out in an adopted, published resolution. As cited by the court, it states:

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the Board supports the correction of disparities identified by the study and that salaries will be based on prevailing rates except where such criteria do not adequately compensate the emplo based on the concept of comparable worth. From an analytical viewpoint, the Washington State Personnel Board's policy resolution statement is intriguing. What "its members were saying, in effect, was that as long as state agencies were reasonably sa,tisfied that the pay levels between predominantly 336 male and female jobs were equitable, "salaries will be based on prevailing rates." These were the wages and salary rates which were ascribed to the male-female job classifications through the presumably "free forces" of market demand and supply. The WFSE union had voiced its objection to this. What makes this aspect of the resolution intriguing is that an employment practice that determines compensation in this manner is lawfully permissible under Title VII. This, of course, is true as long as there exists no intent on the employer's part to discriminate against employees. In other words, barring any guise of intentional compensation discrimination, wage determination through the marketplace factors of supply and demand is a legally allowable Title VII defense, should the employer be sued.136 The real intent of the Board's

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337 however, was aimed at reaching the correction of unequal pay disparities of, primarily, women who were employed in the State's segregated job classes; the job worth value of these positions was equal to some of those predominated by men. In terms of the 1976 $7 million budget appropriation, the trial court clearly rejected the State of Washington' legal defense, which claimed that, in 1976-77, insufficient funds existed to carry out the lawfully disbursed allowance. Governor Dixie Lee Ray canceled the measure shortly after assuming office in 1977. As viewed by court, the judge stated: She took the appropriation out of the budget even though there was a surplus in the 1976-77 State budget that could been to Plaintiff's their evaluated worth That information was derived from oral testimony during the trial. Although Governor Ray justified her action on budgetary constraint grounds, reportedly, she also challenged the methodology used by Norman Willis and Associates in the State's 1974 job evaluation study. She sa id that it was analogous wi th .. compar i ng apples and pumpkins and cans of worms, and they are not 138 comparable." From 1977 to 1982, the latter being the year AFSCME and WFSE instituted the suit against the

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338 state of Washington, there were two other major events that impacted the State's handling of the known sex and wage discrimination problems. In 1977, the State Legislature amended Washington State's compensation statute. The .change created the following provision: Additional compensation needed to eliminate such salary dissimilarities shall not be maintained as a separate salary schedule for the full disclosure and visibility. The second major. happening occurred on January 15, 1980. It took place when Governor Ray declared to the Washington State Legislature an executive change in policy in relation to the State's pay equity matter. The reversal in the Administration's posi tion was stunning. It reflected a complete turnabout of the Governor's heretofore staunch opposition to gender-based discrimination and undercompensation, as the matters related to the State. As the trial judge points out, in her January 15, 1980, address to the bicameral State Legislative body, Governor Ray said: that survey revealed an average salary difference of 20 percent, favoring men over women for work of similar complexity and value. Because of the cost of bringing women's salaries up to men's, the only thing that we and I include the Governor with the Legislature in this have done about that 1974 study, was to have it up-dated [sic]. The update revealed that since salary increases have been established on a percentage basis, the inequality gap between men's and women's salaries for similar work

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has now increased. The dollar cost of solution will be it probably cannot be achieved in one action. But, the cost of perpetuating unfairness, within State government is too great to put off any longer It would be purely speculative to say what prompted Governor Ray to alter her position. It is likely that prevailing political pressures were responsible for the.change. Or, the policy change 339 could have ensued from Governor Ray's realization that her initial position on the matter was both improper and ill-advised. At any rate, though the reversal was slow to come since her inauguration into office in 1977, Governor Ray nevertheless yielded to the expediencies of the need to correct the compensation disparities, the internal and external pressures for doing such, and, lastly, the truism that the comparable worth concept was an ever-emerging reality in the State government's two personnel systems. In 1983, the Washington State Legislature $1.5 million for the specific aim of correcting the State's employment practices of underpaying its female employees. This was the third major episode that had an impact on the events in the State between the years of 1977 and 1983. With regard to the government's attempt to handle and, hence,

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340 dispose of the State's comparable worth problem, the impact was twofold. First, the fact that the budgetary appropriation demonstrated the first time in a decade or so that Washington State government had taken formal steps to provide monies for correcting the overt pay problems was regarded by comparable worth pay proponents as being significant, in and of itself. And, the meaningfulness of this legislative action was further realized when the State Legislature enacted into law a companion bill (during this same time) which called for the total achievement of a statewide, implemented comparable worth program by the year 1993. As educed from the trial court record, part of the two measures' texts-contained the following: EHB 1079 appropriated $1.5 million to increase the salaries by $100.00 a year of occupants of. job classifications for which the current salary range is more than 8 ranges (20%) below the comparable worth range, as shown by the 1982 supplementary salary schedule. The 141 salary increase is not payable until 1984. SSB 3248 calls for implementation of salary changes necessary to achieve comparable worth in compliance with the findings of the DOP and HEPB supplemental surveys, and provides that such implementation 'shall be achieved not later than June 30, 1993.' The introduction of what appears to be two substantive steps undertaken by the State of Washington to correct the known pay inequalities which existed in

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341 the government's DOP and employment job classification systems provides an appropriate point of departure for assessing the manner in which the actions were regarded by the trial judge. In setting a foundation for the following discussion, it is noteworthy to emphasize that the State of Washington instituted the aforementioned pay equity monetary action after the State had been sued by the unions. This, too, had a substantial bearing on the merits of the case, at trial, and much to the defendant's dismay, the judge construed the undertaking of the two remedial actions as being too little, too late. First, acknowledged that Washington State had not paid the undercompensated females even up to the point when the case was being tried. In an incriminating characterization, the federal district judge stated, further, in the court's factual findings: The State did not pay, and has not paid, predominately female jobs the full evaluated worth of their jobs as established State's own job evaluation studies. Moreover, the court's findings acknowledged: The wage system in the State of Washington has a disparate impa!(40n predominately female job classifications. Implemen.tation and' perpetuation of the present wage system in the State of Washington results in intentional, unfavorable treatment of employees in female job classifications.

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342 As to the worth of the two legislative acts undertaken by the Washington State Legislature after the State had been sued over their discriminatory employment practices, the judge declared in his decision: It was not .until 1983, after the filing of the instant lawsuit, that the legislature took affirmative action to implement the comparable worth scheme, and even then, the implementation effort was nothing more than a token appropriation of $1.5 million (none of which has been paid at the time) and a ten (10) year remedial plan. A further analysIs of the trial court judge's declaration shows, first, that the jurist's opening remarks characterize the AFSCME case as being one of "first impression" since, as the court states in its own words, it concerns the implementation of a -147 comparable worth system." In this respect, the judge exercises particular caution in that he frames the description as that "concern[ing] the implemen ta tion of a comparable worth system," and 'not that it is one of "first impression" based upon a Title VII comparable worth job theory of recovery. Why is this significant? It is important since it now appears to be well-settled and firmly established within the nationai legal framework that Title VII of the Civil Rights Act of 1964 is legally insufficient in its ability to embrace employment claims based on the equal

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pay for equal work value, or the comparable worth job doctrine. What limits it in its scope in addressing claims based solely on this premise is the Equal Pay Act's strict requirement that the contested unequally paid jobs demonstrate work equality. Hence, the trial judge's reference in AFSCME that the dispute in the case related to the implementation of a pay equity program in the State of Washington removed, altogether, the consideration that plaintiffs' Title VII legal argument was structured exclusively upon the principle of comparable worth. In similar fashion, the AFSCME trial court judge applied his scholarly legal wits in disposing of plaintiffs' part of the complaint which averred that the State of Washington maintained sex segregated job classes in the government's dual employment system. Based on this contention, plaintiffs maintained that the two independently State-operated personnel systems resulted in the historical sexual segregation of males and females, and the latter was paid significantly lower relative earnings, even upon the demonstration of equal job worth. In dispensing with this aspect of plaintiffs' complaint, it remains unclear to this writer what motivated the trial judge to the outcome stated below, and why the suing parties were judicially

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344 compelled to concede this part of their complaint. The manner in which the court treated and, further, disposed of the occupational sex segregation issue is thusly: Throughout their pleadings Plaintiff alleged the Defendant discriminated against the Plaintiff's Class by maintairiing historically sex segregated job classifications. At trial, it became apparent that the alleged sex-segregation was not an independent claim, but an element of Plaintiff's claim based on discrimination in compensation. A careful reading of the voluminous pleadings herein reveals the Plaintiff's use of the term 'sex-segregation' merely refers to sexual predominance, either male in various job classifications. Accordingly, the trial judge legally concluded that the plaintiff's allegations of sex segregation were to be dismissed .149 Al though one can understand "sexual" predom inance" compr i sing predom inan tly male and female divisions along gender-differentiated criteria, it appears that what AFSCME plaintiffs were attempting to get the court to rule upon here was clearly a factor addressable under Title VII. In light of the evidentiary proof, in which the judge sustained plaintiffs' case on the findings that the State of Washington had intentionally engaged in discriminatory employment practices against the women working in the State's predominantly female job classes, it seems that their "sexual predominance" and undercompensated status

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345 would have qual ified as illici t, proscribed acts under Title VII.150 In any event, the issue became moot upon its dismissal during the trial. Having established from a legal viewpoint that theAFSCME case only involved the concern which related to the State of Washington's failure to implement an equitable compensation program in its employment systems, the trial judge classified the case before the bar as merely one of being a "failure to pay.1115l Elaborating he states: The Plaintiffs herein are challenging the State of Washington's failure to rectify an acknowledged disparity in pay between predominately female and predominately male job classifications by compensating the predominately female job employees in accordance with their worth, as. det.ermined by the Sta te. As to the legal issue that confronted the court, the judge notes: The threshold question presented to this court is whether Defendant's failure to pay the Plaintiff's their evaluated worth, under the provisions of Defendant's comparable worth studies,constitutes distrimination in 153 violation of the provisions of Title VII. primarily, the holdings of the International Brotherhood of Teamsters v. U.S., and of the Griggs v. Duke Powers co.,155 provided the guiding standards upon which the AFSCME court would resolve the above legal question. In relation to the Teamsters and Griggs'

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346 holdings, as each pertained to the instant matter, the trial judge asserts: The central focus of the [AFSCME] inquiry, in a case such as this, is always whether the employer is treating' some people less favorably than others because of their color, religion, sex, or national origin.' That standard was enunciated in the Teamsters case by the u.s. Supreme Court, in 1977. In terms of the Griggs standard, the judge went on to say: It is now a well established legal principle that' procedures or test neutral on their 'nd even neutral in terms of intent cannot be maintained if they operate to freeze the status quo of discriminatory employment practices.' As the Teamsters' and Griggs' legal principles apply to the trialable substance in the AFSCME case, previously, it was stated that plaintiffs' proof substantiated that the State of Washington's personnel practices not only treated them disparately and, likewise, had a disparate impact on them, but such treatment also demonstrated the State's personnel practices to have been intentional. Commenting on each, the court said: The record in this case shows, by a preponderance of the ev idence, that too Sta te of Washington historically engaged in employment discrimination on the basis of sex; that the discriminatory practices continued after the March 24, 1972, amendment to Title VII; and that the discriminatory practices are continuing at the present time. In fact, there is no credible evidence in the record that would support a finding that the State's

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practices. and based on any factor other than sex. With regard to the judge's statement about the "State's practices and procedures" being based on any factor other than sex," this was the only defense under the Bennett Amendment to Title VII which the State of Washington had at its disposal. During the trial, the defendant was so advised.159 In terms of using the "any factor. other than sex" 4efense successfully, the State of Washington did not prevail in this respect. Ruling on this, the court asserted: After careful review of the record herein, this Court [sic] cannot reach any conclusion other than the State of Washington has, and is continuing to maintain a compensation system which discriminates on the basis of sex. The Sta te of Washington, [s ic] has fa il,ed to rectify an acknowledged discriminatory disparity in compensation. The State has, and is continuing to treat some employees less favorably than others because and this treatment is intentional. The Court's findings precipitated' the formulation of a remedy to redress the proven harms. As the court noted in this regard" Title VII is not 'automatic' as to remedy." The judge moreover proclaims: A court that finds unlawful discrimination may enjoin the discrimination and order such affirmative action as may be appropriate, with or wi thout back pay or any other e9uitaYSI relief as the court deems approprIate.

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Upon this declaration by the trial judge, the court found it appropriate to shape numerous remedies with regard to the disposition of plaintiffs' proven case of sex-based wage discrimination against the State of Washington. Of the eight remedial actions imposed upon Washington State by the federal district court judge, four of them were major. The first one was the ordering of a monetary award of back pay and fringe benefi ts for the 15,500 .individuals who were identifiable members of the suing, class-action litigation.162 The second one granted injunctive relief. Thus, it enjoined the state of Washington from indulging further in its heretofore unresolved, unequal compensation practices.163 In this respect, during the trial, the State of Washington introduced a host of defenses seeking to impress upon the court why that judicial body should not impose upon the State the ordered, remedial burdensome penalties. In its own words, the court explains: The Defendant, State of Washington, has set forth a number of reasons injunctive relief should not be formulated and enforced by this Court [sic]: (1) the tremendous costs involved; (2) lack of revenue because of the depressed economy nationally, and more particularly in the State of Washington, (i.e., high employment and recession in the forest industry which provides much of the State tax revenues); (3) prior State revenue. commitments to education, prisons, and social services; (4) the State Constitution's

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mandated balanced (5) disruption in the State's work force, and of the State's. compensation the State Legislature has already initiated a remedy which will eliminate the sex discrimination by no later than and (6) the to the United States Constitution. As to the first reason cited above, the court ruled that since Title VII does not contain a 349 "cost-justification" defense, the State of Washington's position is without merit.165 In relation to their beggings of the insUfficiency of adequate State monies, reserved revenue commi tments, and State constitutionally-mandated balanced budget, the trial judge said: Defendant's shortage of revenue commitments, and constitutionally mandated balanced budget defenses, cannot withstand the evidence produced at trial herein. It was uncontroverted that in the 1976-77 biennium the State of Washington had a surplus budget, was cognizant of the disparity which is the subject of this lawsuit, and did not consider the acknowledged discrimination enough of a priority to divert the surplus to the victims of the discrimination. The bad faith of defendant's action is patent, and cannot be overcome this.latI6gate with arguments that are sound 1n equ1ty. In relation to the sixth reason given by the State of Washington, asking the court not to impose injunctive relief, it has been previously mentioned that the judge regarded the State's action of appropriating $1.5 million to remedy the pay problem and to accomplish

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comparable worth equity in mid-year 1993 as mere tokenism.167 Relative to the May, 1983, budget appropriation of $1.5 million by the Washington State Legislature, the court also proclaimed: [W]ere the Court [sic] to adopt the May 1983 act [sic] of the Washington legislature as the injunctive remedy herein, this Court [sic] would be endorsing a compensation plan that works a grave injustice to the discriminatees. Title VII remedies are now. The courts have learned well the lesson taught by Brown v. Board 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. This Court [sic] sees no credible distinction between endorsing a remedy to be phased in over a ten (10) year period and an injunction with all deliberate speed. In final words on the.subject, the court further po in ted out: It is time, right now for a remedy. Defendant's preoccupation with its budget constraints pales when compared with the invidiousness of the impact ongoing has upon the here In. 350 Lastly, the State of Washington's argument in reference to the protections afforded it by the Tenth Amendment to the United States Constitution was also quelled by the court. Pointedly, the trial judge emphatically sta ted: Defendant's position is incongruous, in that, while contending there is no sex discrimination in employment in the State of Washington, then they argue that the May 1983

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Act of the legislature is the only remedy this Court [sic]. can order. This Court [sic] takes the. novel position to mean that even though sex discrimination in employment is prohibited by Title VII, which withstood constitutional scrutiny, nevertheless the Tenth Amendment prevents the Federal Courts from fashioning and enforcing an appropriate remedy against the State. Any remedy, other than that provided by the State, would be unconstitutional. There is nothing in the legislative history of Title VII that would indicate that the Federal Courts, after finding sex discrimination in employment, could not then fashion a remedy to eliminate the discrimination. This Court [sic] is certain that when Congress amended Title VII in 1972 to extend liability to the State (Footnote included], this Tenth Amendment challenge was bonsidered. The Court [sic] remains of the abiding conviction that the proposed injunctive relief is with Title VII and the Tenth Amendment. 351 The last two of .the four maj or ordered remed ies imposed upon Washington state were even more devastating in their In addition to the first two, the court appointed an overseer tomonitor on an ongoing basis the State's execution of its instructions. The "Master," as the court re ferred to the individual appointed to the position, by and large, was given a wide range of unlimited authority and powers over the matter.17l The court's opinion also delineated the Master's responsibilities, duties, and tasks.172 Essentially, however, the Master was placed under the federal district court's auspices to bring

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about a speedy and "deliberate" implementation of a comparable worth program in the State of Washington. The lastsignificant major remedy was that of the court retaining judicial supervision over the affair. In justifying its declaratory posture in this manner, the trial court judge states: This Court [sic] shall retain jurisdiction of this case for the purpose of implementation and enforcement of this Order, including, but not by way of limitation, the issuance of suchadditional orders as may be necessary and as the interest of justice may require, to insure that no of on the basis of sex, as to the terms and payment of compensation, shall be committed against any of the claimants awarded relief in this case, in their enjoyment of that relief, who are now or who may hereinaftI73become employees of the State of Washington. Since even a federal court's injunction is not forever, the court said in its final After final judgment and after all of the appropriate relief for the claimants has [sic] been granted, and implemented in the case, either party hereto may move the Court to terminate its continued jurisdiction. To a large extent, the. Title VII employment discrimination case against the State of Washington speaks for itself. The case, as the trial judge characterized it, was a "failure to pay" instance as opposed to one based solely on the espoused comparable worth job theory doctrine. As the court aptly recognized, the AFSCME case merely involved the

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353 inaction on the State of Washington's part to implement an equitable compensation system upon which was predicated a comparable worth concern--no more, no less. The comparable worth concern came about as a result of the State's own initiatives of formally implementing actions, first, in making "sex" an unlawful consideration in employment or employment opportunities: and, second, in formally recognizing and endorsing sex antidiscrimination acts officially sanctioned by the State. Though Washington Sta te' s efforts centered on identifying and documenting the sex and pay inequities in its employment system, State officials fell remarkably short of correcting and remedying the problems. Whether this was due to inaction and indecision, or both, the State's protracted record of continuing the known sex and wage discrimination acts legally operated to the government's disadvantage. Maintaining the State's two job classification systems and then paying significantly less than comparable job worth wages for the predominantly male and female job classes worked against the State lawfully, and all were proven to be discriminatory. The evidence at trial was not only convincing, but overwhelming.

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The u.s.' Court of Appeals for the Ninth Circuit overturned the district court's ruling in the AFSCME case. The appellate merits of the trial were argued before the appeals court on April 4, 1985. The Ninth Circuit Court handed down its ruling in early September, 1985. The three-member body of' the appellate court delivered the AFSCME case a major setback. In doing so, the court recognized the fundamental worth of employers using marketplace job wage and salary rates to evaluate their jobs, for pay purposes, though such practices may incorporate discriminatory sex-based pay elements. Essentially, the appeals court examined and, consequently, ruled upon the lower court's determination'that the State of Washington was guilty of sex and pay discrimination against its female employees who worked in predominantly sex segregated job classifications. As stated, the lower court found that the State of Washington discriminated against employed females on disparate impact, disparate treatment, and intentional grounds. In shGrt, the Ninth Circuit Court upset the lower decision. The appellate court said that AFSCME plain tiffs failed to prove tha t the Sta te of Washington's employment sex and pay practices either had a disparate impact on their employed females or

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355 resulted in their disparate treatment. In this regard, the justices unanimously ruled that AFSCME plaintiffs failed to show that the State of Washington engaged in a "specific, clearly delineated employment practice applied to a single point in the job selection process.175 Such proof is required under the disparate impact'principle. Relative to the disparate treatment theory, the appellate jurists further ruled that AFSCME plaintiffs also failed to legally prove discriminatory intent on Washington State's part as a result of its "participation in the market system as Washington did not create the market disparity and ,has not been shown to have been motivated by impermissible sex-based 76 conSl eratlons In settlng sa arles. The legal issue before the appellate court was whether the State of Washington was guilty of violating Ti tIe VII of the Civil 'Rights Act of 1964, by paying females who worked in predominantly "women's" job classes lower wages than those the State paid to males who worked in predominantly "men's" job classes. The lower court had held that, in light of the State's longstand i ng employment discr imina tory pract ices based on the 1974 and 1976 Willis Comparable Worth job evaluation studies, Washington State. had discriminated against female employees who worked in dissimilar jobs

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356 and were paid a twenty-percent lower wage differential than males working-in jobs in which they predominated. In other words, the question which confronted the Ninth Circuit was whether AFSCME plaintiffs could recover under Title VII based on the comparable worth wage determination theory.177 The appellate court held that the State of Washington's sex and pay employment practices did not violate Title VII's provisions. Based on this observation, plaintiffs failed to satisfy the legal proofs of both the disparate impact and disparate treatment theories. In reversing the lower court's decision, the appellate body disposed of the stated considerations in the following-manner. First,_ from a legal viewpoint and as it related to the instant matter, the court enunciated the comparable worth standard. It said: The comparable worth theory, as developed in the case before us, postulates that sex-based wage discrimination exists if employees in job classifications occupied primarily by women are pa id le-ss than employees in job classifications primarily by men, if the jobs are of equal value r9athe employer, though otherwise dissimilar. Second, relative to the, up until then proven, disparate impact and disparate treatment claims, the court handled them separately. In this respect, disparate impact, it sqid, requires that employment

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357 discrimination be proven "by showirig that a facially neutral employment practice, not justified by business necessity, has a disproportionately adverse impact upon members of a group protected under Title VII."179 In substantiating. that disparate impact exists, under the theory, it is not necessary for plaintiff to show discriminatory intent on the employer's part. The court goes on to say that: The theory is based in part on the rationale that where a[n] [employment] practice is specific and focused we can address whether it is a pretext for discrimination in.light of the explanation for the practlce. The court noted that the trial judge erred in ruling that liability existed against the State of Washington under the disparate impact theory. The appellate court said the lower court erred in upholding plaintiffs' position which contended that a Title VII claim was supported upon the findings that "the State of Washington's practice of taking prevailing market rates into account in setting wages had an adverse impact on women, who, historically, have received lower wages in the labor market.IIISI Since the disparate impact analysis theory involves one challenging "a specific, clearly delineated employment practice applied at a single point in the job selection process,1I182 the

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358 appellate court said that the State's employment practice of using prevailing market wage rates "involves the assessment of a number of complex factors not easily ascertainable, an assessment too multifaceted to be appropriate for disparate impact 1 ,,183 ana YSIS. thusly: The court rationalized its position the compensation system in question resulted from surveys, agency hearings, administrative recommendations, budget proposals, executive actions, and legislative enactments. A compensation system that is responsive to supply and demand and other market forces is not the type of specific, clearly delineated employment policy contemplated by Dothard and such a compensation system, the result of a complex of market does not constitute a single practice that suffices to a claim under disparate impact theory. Relative to its handling of the disparate treatment claim, the appellate court said that, as a theory, "an employer's intent or motive in adopting a challenged policy is an essential element of liability for a violation of Title VII,,185 The fact that an employer may be aware of the consequences of such a practice which has discriminatory effects is, said the l' h" 1 186 court, Insu ficient In re ation to t e princip e. In this regard, the burden is upon the complaining party to prove to the court that the complained about adverse, employment practice is one the employer chose.

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359 Hence, based on the disparate treatment theory and its requisite proof, plaintiff must show discriminatory intent on the employer's part and that the chosen employment practice is of its own doing. Moreover, mere recognition of the unchosen practice's consequences is insufficient in proving discriminatory intent. Proof in this can be had by substantiating intent by offering circumstantial or direct evidence.187 AFSCME plaintiffs claimed that, among other things, the results and conclusion of the Willis Compa'rable Worth Job Evaluation Study was inferential proof that the use of prevailing market rates by the State of Washington made for discriminatory intent since it pointed to a twentypercent pay disparity for males and females working in sex segregated job classes. In this regard, the appellate court said: The inference of discriminatory motive which AFSCME seeks to draw from the Sta te' s participation in the market system fails, as the State did not create the market disparity and has not been shown to have been motivated by impermissible considerations in setting salaries. The court went on to say: That the concept [disparate theory] would undermined if we were to hold that payment of wages according to prevailing wages in the public and private sectors is an act which, in itself, supports the inference of a purpose to discriminate. Neither law nor logic deems the

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free market a enterprise. reality is that the value of a particular job to an employer is but one factor influencing the rate of compensation for that job. Other considerations may include the availability of workers willing to do the job and the effectiveness of bargaining in a particular industry. And, lastly, as a further means to support its position, the appellate court said: We find nothing in the language of Title VII or its legislative history to indicate Congress intended to abrogate fundamental economic principles such as the laws of supply and demand or to prevent employers from competing in the labor market. While the Washington legislature may have the discretion to enact a comparable worth plan if it chooses to do so, Title VII does not obligate it to eliminate an economi190 inequality which it did not create. 360 In conclusion, the Ninth Circuit Appellate Court ruled that: job evaluation studies and comparable worth statistics alone are insufficient to establish the requisite inference of discriminatory motive critical to the disparate treatment theory [undef9Iit1e VII of the Civil Rights Act of 1964] Based on the above ruling, the court held: [That] there was a failure to establish a violation of Title VII under the disparate treatment theory of discrimination. The State of Washington's initial reliance on a free market system in which employees in male-dominated jobs are compensated at a higher rate than employees in dissimilar female-dominated jobs is not in and of itself a violation of Title VII, notwithstanding that the willis study the positions of comparable worth.

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361 In the beginning of this chapter, it was proposed that comparable worth had no legal basis in federal jurisprudence. It appears that the u.s. Court of Appeals for the Ninth Circuit decided the AFSCME case with that principle in mind. Further, the court lawfully justified its position by recognizing three important factors which weighed on the stated considerations. Apart from AFSCME plaintiffs' inability to sustain the' lower court's lawful determinations that disparate impact and disparate treatment had been proven, the first important factor recognized by the appellate court justices was that Washington State was not motivated by marketplace sex and wage disparities, if in fact such existed, in their salary setting practices. Second, the court recognized that wage and salary-setting marketplace activities are not to be adjudged as incorporating illicit as features of their processes. Again, quoting the Court, "neither law nor logic deems the free market system a suspect enterprise.,,193 In this respect, the court completely turned its attention from the possibility that, given certain circumstances, employers can conspire to collusively set the wage and salary rates of predominantly male and female jobs and, hence, in doing so, effectively alter the interaction between the

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free market forces of labor supply and demand. Third, and perhaps most important from a legal viewpoint, the court said that Title VII does not obligate an employer to eradicate "an economic inequality" which it did not create."l94 The court's position in this regard appears to be contradictory. On one hand, the court recognizes that the market system is not to be looked upon as a "suspect enterprise," but, on the other, the jurists talk about an "economic inequality" which Title VII does not require an empioyer to correct if it did not create the irregularities. Is not economics a part of the market system? Hence, if the court recognizes that "economic inequalities" exist, are not these same disparate elements parts of the whole of the market system, therefore, making them suspect enterprises, too? Despite what appears to be the court's its ruling dealt a severe legal blow to the comparable worth wage determination doctrine. In effect, it dampened the employed woman's hopes of being paid equal work wages for her labor force input, at least in Washington State. Prior to summarizing the chapter's discussion, it is important. to make a few comments with regard to a remark made by the judge in a footnote in the AFSCME case. In making reference to the State of Washington's

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assertion that sex discrimination was nonexistent in that State, the judge said: no matter what Defendant elects to call it--disparity, pay equity, or whatever, the only effect is sex discrimination. What other logical reason can there be for the Defendant's adoption ofl9ge 'comparable worth' theory of compensation. Stated"differently, the judge spoke to the reason or cause for why the State of Washington failed to implement a comparable worth compensation program in the State's sex segregated, and undercompensated, 363 predominantly female job classes. The court's comments may provide some important insight into the ongoing difficulty in trying to prevail in the federal courts in Title VII claims of sex-based wage discrimination. The insight is simply this. Proven to have resulted in an individual's or group's disparate treatment, disparate impact, or intentional discrimination, the Title VII legal weapon of prohibiting employment discrimination on the basis of sex can encompass a wide variety of other, corollary matters which may directly or indirectly be the primordial consequence of job sex segregation and compensation discrimination. Under Title VII, there appears to be no legal remedy to embrace an employment claim based solely on occupational sex segregation and unequal pay, relative

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to males and females employed in dissimilar jobs and performing work of equal value. In this context, the comparable worth issue is not one of a name, and it should not be, but one, instead, of accomplishment. 364 The feat it has to achieve is the attainment of just and equitable compensation for employed females who are employed in predominantly female-occupied, undercompensated, and underutilized job classes. And, to paraphrase the judge -in tne AFSCME case, call it what one wants, the "efiect" of sex discrimination by any other characterization still results in the "effect" of sex discrimination. Washington State Comparable Worth Settlement The State of Washington and the AFSCME and WFSE unions entered into a comparable worth settlement during late Spring, 1986. Among the factors which motivated, particularly, Washington State officials to settle the dispute was that the two unions had petitioned, en banc, the full members of the u.S. Court of Appeals for the Ninth Circuit to review 'its previous decision overturning the district court's ruling. Reportedly, upon their review of the three-judge decision of the appellate court, the majority of the justices comprising the Ninth Circuit Court, en bane,

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365 made it encumbent upon the State of Washington to show cause why it, the court, should not reconsider its previous ruling reversing the lower court's decision. Hence, although the Court of Appeals' ruling was initially adverse to comparable worth plaintiffs, a little ray of hope remained in terms of salvaging the merits of the case relative to the subsequent action taken by the Ninth Circuit Court, en banc. Basically, the Washington State comparable worth agreement called for equal pay for equal worth value wage adjustments of $482.0 million, over a seven year period. Relative to those costs and the time frame, such represented nearly seven-percent of the State's payroll." Annually, using again the $482.0 million figure and the seven year time period, yearly average pay adjustments would amount to $68.9 million. As it turned out, however, original estimates to upwardly adjust the wages and salaries of the State's underpaid employees were overstated. The overestimation resulted from the assumption that each undercompensa ted job would rece i ve correspo"nd ing pay increases relative to established benchmarks. Discarding the assumption and adhering to the terms of the agreement, the latter mandated that each job class had to qualify for the comparable worth pay increase

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366 independently. Applying tha t standard, comparable worth costs adjustments over the seven year period were revised, downwardly. Total costs became estimated at $362.0 million during the seven year period. Annually, this converted to an average yearly sum of almost $52.0 million. Hence, the initial overestimation of the monies to correct the State's pay disparities and the subsequent revision resulted in an (adjusted) thirty-three percent reduction than had originally been calcula ted Summary To date, the Gunther case is regarded by pay equity advocates as the premiere comparable worth case. other things, it clarified the confusion that surrounded the Bennett Amendment's interpretation and application to Title VII claims of sex and pay discrimination. The controversies surrounding both issues had prevailed in the federal courts since the late 1970s. Did it resolve the comparable worth problem? Both the Court of Appeals for the Ninth Circuit and the Supreme Court made it crystal clear that the comparable worth concept's legal merits were not being entertained in their separate, but equally meaningful, Gunther rulings. The appropriate question

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367 at this point, then, is whether present legal policies are lawfully sufficient in addressing sex-based wage discrimination claims on the basis of dissimilar job comparisons. Based on the analyses of the so-called comparable worth cases and the discussions of the two antidiscrimination employment statutes, the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964, one has to answer in the negative. It "is a known fact that dissimilar jobs cannot stand muster with the Equal Pay Act. As to Title VII, a hint that it is legally sufficient in reaching sex and pay discrimination claims based on dissimilar job comparisons is further suggested by Justice Rehnquist in the Court's dissenting opinion in Gunther. He states: insofar as hiring or placement discrimination caused the isolated job category, Title VII already provides numerous remedies [such as backpay, transfer and constructive seniority] without resort to job comparisons. In short, if women are limited to low paying jobs against their will, they have adequate remedies under Title for denial of job opportunities At this point, it is important to once again underscore the fact that the party alleging employment discrimination violations under Title VII has the burden of proving whether the employer's actions have resulted in his/her disparate treatment, or have

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368 disproportionately impacted them or, whether the discrimination was intentional. Though Title VII can remedy proscribed employment violations, it is sometimes very difficult from a legal viewpoint for suing parties to meet the statute's standards of proof. Bearing this in mind, several comments are in order about the so-called "comparable worth" cases. First, the IUE and Gunther cases are regarded as the two which directly address the subject of equal work for equal job value. In the IUE case, the jobs the women held at Westinghouse Electric were dissimilar to those worked by male employees. Most, if not all of them, were employed in predominantly female job categories. IUE plaintiffs sought to prove intentional sex-based pay discrimination on the Company's part without attempting to demonstrate "equal work." IUE plaintiffs opted to do this because the jobs were in fact dissimilar in skill, effort, responsibility, and working conditions. And, in all likelihood, had plaintiffs been required to prove "equal work" they would not have prevailed at the federal appellate level. The same can probably be said about the female matrons' jobs in Gunther. There appear to be some misconceptions about whether the work performed by the

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female jail guards was dissimil.ar but equal in value, substantially equal, or comparable to that performed by the male jail guards. In relation to the matrons' jobs being dissimilar but equal in value, equal, or substantially equal to the male guards, the former's work was not. Had it been dissimilar, the women jail guards' jobs would have been compared with, for example, those of the jail's administrative jobs for comparative pay purposes.. Too, such a comparison would have involved the cross-comparisons of the relative comparable worth job values in determining the positions' comparable wage and salary rates. The case's record substantiates that the matrons' jobs were not equal to the male guards, since Gunther plaintiffs failed to prove substantially equal job performance. Having eliminated the first two, were the male and female guard jobs comparable? The answer is yes. The work performed by the male and female guards consisted of job content which required comparable skill, effort, responsibility, and it was done under comparable working conditions. Relative to the Equal Pay Act, this may explain why Gunther plaintiffs wisely elected not to allege "equal work" in their Title VII complaint. In this respect, the Gunther matter is a comparable work case and not one which comes close to

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370 embracing the comparable worth concern. Hence, the question is again posited as to whether federal courts have dealt with the true essence of the comparable worth wage determination doctrine from a legal viewpoint. This writer thinks not. The comparable worth standard of recovery is for employed women to obtain adjusted, equitable compensation as a consequence of working in sex segregated jobs and being discriminated against on the bases of their sex and receiving less than equal value work wages relative to employed men. Short of this determinative comparable worth legal outcome, it is noteworthy to comment on which of the so-called "comparable worth" cases. nears the characterization. The Lemons and the AFSCME merits meet definitive comparable worth criteria. In challenging what appeared to be discriminatory employment practices undertaken by the City and County of Denver, the municipality's nurses attempted to have their job values compared with those in another of the city's job classification structure. Such an attempt would have involved cutting across the employer's dual job classification family and resulted in the positions' relative comparable worth determinations. As looked upon by the employed nurses, they regarded

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371 their jobs to have been undervaluated and undercompensated in worth relative to what the City and County of Denverpaid to the job positions of, say, an administrator and a tree trimmer. Hence, the nurses' objective in wanting to. traverse the city's job families in ascertaining the true, relative, equal job worth values of their positions represented the hallmark of the comparable worth trial. The crosscomparison of the male and female jobs in the IUE and Gunther cases were never disputed considerations in their respective dispositions. In the Lemons case, however job comparability was a pivotal issue at trial. The merits of the AFSCME case, on the other hand, supersede those of the Lemons case in meeting what really embodies comparable worth. The State of Washington's job systems were sexually segregated. Females in dissimilar jobs were paid proportionately and significantly lower than those of males in their respective predominate work classifications. The relative comparable worth value of the evaluated, dissimilar jobs documented overt sex-based pay disparities between the State's employed males and females. The lower court held that Washington State's employment policies and practices were disparate, disproportionately impacted their female employees, and

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372 were intentional in context and application. The Lemons case's. merits did not aver the element of intentional discrimination in plaintiffs' suit against the City and County of Denver. Though the Lemons and AFSCME matters were unsuccessful Title VII sex-based pay discrimination trials, the majority Court's opinion in Gunther hinted that the lawful day of employed females suing under the civil rights statute on the ground of sex segregation and unequal compensation have yet to be reckoned with from a public policy standpoint. Nevertheless, that 4 time is coming. And even then, it still remains a matter of pure speculation as to whether such Title claims will be successful in light of the existing legal framework governing the subject. In this respect, it is surmised that, now or then, Title VII sex-based pay claims structured solely on occupational sex segregation and unequal compensation would neither stand statutory sufficiency nor judicial muster without proof that the employer's personnel practices were disparate, disproportionate in effect, or intentional. Consequently, this leads to the conclusion that public policy in this regard has failed. Since it is

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373 known that the Equal Pay Act cannot address these concerns, it can be dismissed from consideration, altogether. As to Title VII, although its broad parameters may begin to address some aspects of the comparable worth problem, it cannot substantively deal with all of the equal work value's considerations exclusively on the pretexts of job sex segregation and unequal pay. It seems that if Congress was really serious about eliminating employment discrimination, there appear to be numerous' things the federal lawmaking body can do to achieve the desired result. First, three of the four Equal Pay Act's enumerated exceptions, which lawfully exempt employers from paying equal wages for equal work, can be eliminated. These three are the Act's exclusionary features of basing the sexes' pay differential on a seniority system, a merit system, and on any other factor other than sex. It is understandable that wage and salary rate variances will occur in job classification pay grades as a result of employee seniority and employment longevity. However, it is a known fact that occupational discrimination of all forms has been both maintained and perpetuated through the job seniority instrument. Though this practice may not exist, as pervasively as it once did,

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374 still, it was a device labor unions used to deprive blacks, women, and minorities of equal employment opportunities in the workplace. In similar fashion, though in a somewhat different context, the legality of the Equal Pay Act's seniority system exclusion generates the same effect of denying employed women who do equal work relative to employed men equal pay. The same can also be said of the Equal Pay Act's merit system excep,tion. When combined, national, state, and local governments comprise the biggest employers. Women make up a significant number of their employees. The Equal Pay Act's merit system exclusion allows public employers to compensate the sexes differently though the female and male employees' job performance may be substantially equal. Such a lawful exception authorized by the Equal Pay Act runs contrary, it seems, to the overriding public interest of eradicating all facets of employment discrimination. Lastly, the Equal Pay Act's permissive requirement that allows public, private, and third-sector employers to also base unequal pay for equal work job performance between the sexes on any other factor other than sex is the third of the statute's exceptions which needs to be scrutinized. This requirement appears to open up "great vistas" in granting institutions virtually

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375 an unlimited range of factors upon which the nonpayment of equal wages can be based. The reality of the situation is simple. Whether females and males are employed in job systems baseo on a seniority system, a merit system, or' ones based on any other factor other than sex, equal work by any other description is still equal work. Though the Equal Pay Act is federal law, when it or any other national statute provides for the perpetual promotion of the disparities prevalent in the sexes' relative earnings, such measures appear paradoxical to this writer. Justifiably, it also seems that fair employment compensation practices dictate that an individual, or female, should be paid equal wages for performing equal work. Short of overhauling the Equal Pay Act's four affirmative defenses, the second most important thing Congress can do in seriously addressing the employment problems of the undervaluation and undercompensation of the employed woman's work and wages is to take a candid look at the comparable worth consideration. Foreign countries have been able to attack the equal pay for equal work value problem in their own respective experiences.197 In this respect, there appears to be nothing restraining Congress from fostering a comparable worth legal standard upon which can be

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embraced unlawful employment claims of female sex segregation and unequal compensation. Indeed, if such eventuated, the embodied law would have to incorporate in its provisions a broad standard for the reasonable cross-comparison of an employer's jobs within its work establishment. The failure to eradicate employment discrimination, or at least to minimize its effects, is a responsibility which rests with the u.s. Congress and not with the federal judiciary and federal agencies. Al though Ti tIe VIr has unquestionably been an important legal measure in dealing with many aspects of employment discrimination, it appears that the civil rights statute lacks the exclusive features needed to bring about the implementation of the comparable worth wage determination doctrine on a nationwide basis. And, although voluntary comparable worth actions on employers' part are welcomed in this regard, the equal pay for equal work value, or pay equity, issue will drag in its resolution until Congress accepts the challenge of substantively dealing with the employment irregularities of occupational sex segregation and undercompensation of the female's paid wages. Admittedly, comparable worth is not a simple problem, nor will its resolution be easy. Comparable worth's utility will have to result from ongoing

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377 efforts to eradicate all vestiges of social employment discrimination within the United States. Albeit unfortunate, America has never been regarded as a Nation free of economic, legal, moral, political, social, racial, and sexual discrimination, among other forms. As a it becomes the task of every u.s. citizen to make the Nation a greater country. This is accomplished by collectively trying to improve the quality of life for all 'Americans, regardless of race, color, national origin, religion, or sex. From a socioeconomic standpoint, the embodiment of the comparable worth concept into legal substance is both a giant and meaningful step toward social good. Likewise, political changes can also act as a catalyst to effect ongoing changes in the workplace' in further safeguarding the job rights of all employed Americ.ans, not just those of blacks, women, and minorities. The political changes should be channeled in the direction of formulating new laws specifically aimed at a resolution of the comparable worth problem. In this respect, the following "model" comparable worth law is offered both as an integral part of this thesis and as a significant step in the heretofore stated direction:

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Model Comparable Worth Law It shall be an' unlawful employment practice to deprive, or tend to deprive, an individual or individuals,regardless of sex, equitable compensation for performing work of equal value, as determined by the relative comparable worth of that job or those jobs to the work organization. The model law is adapted and derived from 378 research and analysis of models and concepts put forth by many other experts and personnel specialists. The model law takes into consideration the scope of the solution to the worth problem. First, it makes unlawful the employment practice of depriving, or tending to deprive, an individual or individuals of comparable worth job wages. Second, sex is eliminated as a determinative factor in the payment of wages to employees, females or males. Third, equitable compensation must be determined by the relative, comparable worth of that single job or job family to the work organization, be the employer public, private, or non-profit. In relation to the problems associated with employment biases and job classification and job evaluation, it becomes imperative to arrive at a single job evaluation system, or perhaps multiple ones, that minimize the male-dominated, value-laden job factors which have historically operated to undervalue the employed woman's earned compensation.

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379 In the next chapter, an examination is made of the comparable worth pay equity initiatives being undertaken by state and local governments to deal with the problems of the undervaluation and undercompensation of the employed woman's work and wages.

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NOTES -CHAPTER IV 111 Equal Pay for Equal Work," 3 Bureau of National Affairs (BNA) (1963). 380 2 C E Persons, "Women's Work and Wages in the Uni ted States, Quarterly Journal of Economics 29 (February 1915), pp. quoted in Judith A. Baer's The Chains of Protections: The JUdicial Response to Women's Labor Legislation (Westport, Conn.: Greenwood Press, Inc., 1978), p. 73. 311Equal Pay for Equal Work" BNA. See also, Elisburg, "Equal Pay in the United States: The Development.and Implementation of the Equal Pay Act of 1963," 29 Labor Law Journal, (1978), pp. 195-208. 4Testimony of Winn Newman, Hearing Before the United States Equal Employment Opportunity Commission on Job Segregation and Wage Discrimination (Washington, D.C. Government Printing Office, 1980), pp. 23-26. 5(Compiled by) Donald Bruce Johnson and Kirk H. Porter, National Party Platforms, 1840-1972 (Urbana, Ill.: University of Illinois Press, 1973), p. 583. 6 Ib id ., p. 589. 7Executive Order No. 10980, 3 C.F.R. 500 (1959-1963 Compilation).

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381 8Equal pay bills had been introduced in Congress as early as 1945. See, Laura N. Gassaway's, "Comparable Worth: A Post-Gunther OVerview," The George Washington Law Journal, vol. 69 (June 1981), at p. 1132, footnote number 84. By Congressional references the considered Equal Pay bills were: S. 1178, 79th Cong. 1st Sess., 91 Cong. Rec. 6411 (1945); S. 706, 81st Cong., 1st Sess., 95 Cong. Rec. 550 (1949); S. 1556, 80th Cong., 1st Sess., 93 Cong. Rec. 8085 (1947); HR 1584 (1947); HR 1584, 81st Cong., 1st Sess., 95 Cong. Rec. 433 (1949); HR 4408 80th Cong., 1st Sess., 93 Cong. Rec., 10,523 (1947); HR 4273, 80th Cong., 1st Sess ., 93 Cong. Rec. 9344 (1947). [Words and emphasis omitted]. For an elaborate treatment of the Equal Pay Act's history see, E1isburg, "Equal Pay in the united States" The Development and Implementation of The Equal Pay Act of 1963," 29 Labor Law Journal (1978), pp. 195-205. 9Hearings on the Select Subcommittee of Labor on the House Committee on Education and Labor, Part I, 87th Cong., 2d Sess. (1962); hereinafter cited as "1962 House Hearings." See also, Hearings Before the Select Subcommittee of Labor on the House Committee on Education and Labor, Part II, 88th Cong. 1st Sess. (1963): hereinafter cited as "1963 House Hearings." 10 1962 House Hearings. 11Ibid 12 1963 House Hearings. l3Legislative History of Titles VII and IX of the Civil Rights Act of 1964 (Washington, D.C. Government --Printing Office, 1964). Hereinafter cited as "Legislative History of Titles VII and IX." l4Ibid 1529 U.S.C. Section 206(d) (1976 Supplement II 1978) 16 1962 House p. 10.

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17Ibid., 18 Ib id ., p. 103. 19R E. wi 11 iams and D. S. McDowell, The Legal Framework," in E.R. Livernash, ed., Comparable Worth: 382 Issues and Answers (Washington, D.C.: Equal Employment Advisory Council, 1980), pp. 215-216. See also, Laura N. Gassaway, "Comparable Worth: A Post-Gunther Overview," The George Washington Law Journal, vol. 69 (June 1981), p. 1132, footnote 86. 20 108 Cong. Rec. 14747-82. 21Ibid., pp. 14767-71. 22 b'd 1., p. 14771. 231962 House Hearings, p. 17. 24108 Cong. Rec. 14768. 25Ibid., p. 14767. 26Ibid 27Ibid., p. 14768. 28 Ib id. 29 29 U.S.C. Section 206. 30108 Cong. Rec. 14755-6. 31Ibid., p. 14768. See also, Legislative Hearings, The Equal Pay Act of 1963 (washington, D.C.: Government printing Office, 1963), p. 10, 11, 17-21-32Ibid., pp. 3 and 12. 3329 U.S.C. Section 206(d) (1) (1970). 34R E Williams and D.S. McDowell, "The Legal Framework," in E.R,. Livernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment-Council, 1980), p. 21. 35 Ib id.

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383 36109 Congo Rec., p. 9197. 37 b'd p. 222. 38For example see DiSalvo v. Chamber of Commerce of Greater Kansas City, 416 F.Supp. 844 (W.D. Mo. 1976). 39For example, marketplace considerations do not constitute an affirmative defense under the Equal Pay Act. See, Corning Glass v. Brennan, 417 u.S. 188 (1974). Absent intentional employment discrimination an employer may discriminate in the sexes' earned wages when performing dissimilar work and use marketplace considerations as a lawful defense under Title VII of the Civil Rights Act of 1964. See, Christensen v. Iowa, 536 F.2d 353 (8th eire 1977) 40Civil Service Reform Act of 1978, Reorganization Plan No.1, 92 Stat. 1111 (1978). Most of the Act's provisions took effect January 1, 1979. 41Joy Ann Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 61. See also, Gregory B. Lewis and Mark A. Emmert, "Budgetary Impl ications of Comparable An Alternative Approach," paper delivered at the annual conference of The American Society for Public Administration, Denver, Colorado on April 10, 1984. Writers estimated that male-female salary-based monetary correction is projected between $2.5 and $5.0 biliion, alone, for public sector employment. 42 For example see, Angelo v. Bacharach, 555 F.2d 1164, 1173 (3rd Cir. 1977), recovery denied on discriminatory motivation grounds. 43Margaret Moses, "Equal Pay for Work of Comparable Value: Status of Litigation Efforts," in J.A. Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference publications, 1980), p. 58. 44For example see, Keynes v. Lenorir-Rhyne College, 552 F.2d 579 (4th Cir. 1977); and, Moltham v. Temple, 442 F.Supp. 448 (E.D. Pa. 1977). Likewise, the legal theory of discriminatory motivation has no lawful bases under the Equal Pay Act; see, Angelo v. Bacharach, 5 5 5 F: 2 d 11 64 ( 3 rd C i r 197 7 )

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4542 U.S.C. 2000e-2 to 2000e-17, (1976 and Supplement II 1978). 4642 U.S.C 2000e Section 47109 Congo Rec., p. 222. 384 4842 U.S.C. Section 2000e-2(h) [Section 703h] [emphasis added] 49Ibid., p. 224. 50 29 U.S.C. 2000e-2(h). 51See, Legislative History of Titles VII and IX (Washington, D.C.: Government Printing Office, 1964). 52Ibid., p. 9. 53see, Legislative History of Ti tIes VII' and IX (Washington, D.C.: Government Printing Office, 1974), p. 225. See also, 110 Congo Rec. 2577. 54110 Congo Rec. 2582. 55Legislative History of Titles VII and IX (Washington, D.C.: Government Printing Office, 1964), p. 3213. 56Ibid., pp. 3214-15. 57110 Congo Rec. 2591. 58Ibid 59Legislative History of Title VI and IX (Washington, D.C.: Government Printing Office, 1964), p. 3213. 60Ibid., p. II. 6lIbid., pp. 11-12. 62Ibid 63Ibid Also, the changes included in the Dirksen-Mansfield substitute civil rights bill were not applicable to the legislation's Title VII provisions.

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385 64Legis1ative History of Titles VII and IX (Washington, D.C.: Government printing Office, 1964), Append ix No.7. 65 b'd 227 p. 66110 Congo Rec. 13647. 67Ibid 68Legis1ative History of Titles VII and IX (Washington, D.C.: Government Printing Office, 1964), p. 11. 69Ib id 70Ibid 71 Berg, "Equa1 Employment Opportunity Under the Civil Rights Act of 1964," 31 Brook1ynL. Rev. 62. 72110 Congo Rec. 13359. 73Ibid 74Internationa1 Brotherhood of Teamsters, v. U S., 431 u. S., at pp. 3 3 5 -3 3 6 75 Schultz v. Wheaton Glass Co., 421 F.2d 259 (3rd Cir. 1970), cert. denied, 398 u.s. 905 (l970). 7692 Stat. 1111 (1978). 77 Schultz v. Wheaton Glass Co., 421 F.2d, p. 259. 78110 Congo Rec. 222. 79 For example see, Angelo v. Bacharach, 555 F.2d 1164, 14 FEP cases, p. 1778 (3rd Cir. 1977). Certain assembly-line production jobs may not constitute equal work. 80Laffey v. Northwest Airlines, Inc., 567 F.2d 429 (D.C. cert. denied, 434 u.S. 1086 (l978). 81Ibid., 567 F.2d, at p. 445.

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386 82Lemons v. City and County of Denver, 17 FEP Cases 906 (D.C. Colo. 1978), aff'd 22 EPD 15,433, 620 F.2d 228 (lOth Cir. 1979), cert. denied, 101 S.Ct. 244 (1980). Hereinafter cited a:9""'"Lemons.1I 83Ibid 84Ibid., 620 F.2d, at p. 228. 85Ibid 86 Mary Helen Doherty and Ann Harriman, IIComparable Worth: The Equal Employment Issues of the 1980s',11 Review of Public Personnel Administration, vol. 1, no. 3, s umme r 1981, p. 28. 87Lemons v. City and County of Denver, 17 FEP cases, pp. 906-907. 88 For example see, Keynes v. Lenorir-Rhyne College, 552 F.2d, p. 579 and Moltham v. Temple University, 442 F.Supp. 448 (E.D. Pa. 1977). 89Christensen v. Iowa, 536 F.2d 353 (8th Cir. 1977). 90Internationa1union of Electrical Workers v. Westinghouse Electric Corp., 631 F.2d 1094 (3rd Cir. 1980), petition for cert. filed, 49 U.S.L.W. 3410 .(1980). Hereinafter cited asli'"fUE 91Melinda P. Chandler, Comments, IIEqual Pay for Comparable Worth Value: The Failure of Title VIr and the Equal Pay Act,1I Northwestern University Law Review, 75: 936 (1980). 92 rUE, 631 F.2d, p. 1097. 93Ibid., 631 F.2d, at p. 1100. 94Gunther v. County of Washington (Oregon), 49 U.S.L.W. 4623 (U.S. June 9, 1981), 602 F.2d 888 (9th Cir. 1980). Hereinafter cited as IIGunther.1I 95 rb id ., 602 F. 2d, at p. 891. 96rbid., 49 U.S.L.W., at pp. 4623-4624. 97rbid

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387 98Ibid 99Ibid., 602 F.2d at pp. 288 et. seq. 100Ibid 49 U.S.L.W., at p. 4629. 101Ibid., 49 U.S.L.W. at p. 4630. 102Ibid., 49 U.S.L.W., at p. 4631. 103Ibid 104Ibid -lQ5Ibid 106Ibid 107Ibid., 49 U.S.L.W., at p. 4629. 108Ibid 49 U.S.L.W., at p. 4633. 109AIn, F d t' f St t C t d er1can e era 10n 0 a e, oun y, an Municipal Employees, et ale v. State of Washington et al., 33 EPD 31,613 (W.D. Wash., 1983). Hereinafter cited asAFSCME. 110Ibid., 33 EPD, at p. 31,625 and pp. 31,628-29. III Ib id ., 33 E PD, at p. 31, 623. 112Ibid 113Ibid 114Ibid 115Leonard Nord's Memorandum of December 17, 1971, quoted in AFSCME, 33 EPD, p. 31,623. 116' 42 U.S.C. 2000 et seq., as amended March 24, 1972. 117AFSCME, 33 EPD, at p. 31,623. 118Norm Schut's letter of November 20, 1973 to Governor Daniel J. Evans, quoted in AFSCME, 33 EPD, at p. 31,623.

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388 l19Governor Daniel J. Evan's letter of November 28, 1973 to Leonard Nord and Douglas Sayan, respectively, the personnel directors of the Washington State Department of Personnel and the Higher Education Personnel Boards, quoted in AFSCME, 33 EPD, at p. 31,623. 120 Ib id. l21Ibid 122AFSCME, 33 EPD, at pp. 31,623-24. l23Ibid., 33 EPD, at p. 31,624. l24Ibid 125 Ib id. 127 Ibid. l28Ibid l29Ib id. l30Ibid l31Ibid l32Ibid 133 Ib id. 134Ibid 135Ibid 136 For example see, Christensen v. Iowa, 536 F.2d 353 (8th Cir. 1977). 137AFSCME, 33 EPD, at p. 31,624. l38Donald Trieman, Selections from Job Evaluation: An Analytic Review, in J.A. Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 108.

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389 139 Wash. Rev. Code Section 41.06.160(5) and 28 B.16.110. Quoted, in part, in AFSCME, 33 EPD, at p. 31,625. 140AFSCME, 33 EPD, at p. 31,625. Quoted in part. 141Ibid Engrossed House Bill (EHB) 1079, cited as Wash. Laws, 1st Ex. Sess., Ch. 75 and Ch. 76 Section 135. 142Ibid Substitute Senate Bill (SSB) 3248, cited as, Wash. Laws, 1st Ex. Sess., Ch. 75 and Ch. 76 Section 135. 143Ibid 144Ibid 145Ibid l46Ibid at p. 31,628. 147 Ib id at p. 31,628. 148Ibid., at p. 31,628. 149Ibid., at p 31,619 and p. 31,626. 150In this regard, Title VII or 42 u.s.c. 2000e (2), among other things makes it an unlawful employment practice for an employer-"to limit, segregate, or classify his [sic] employees in any'way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such race, color, national origin, religion or sex 151AFSCME, 33 EPD, at p. 31,627. 152Ibid 153Ibid 154International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977). 155Griggs v. Duke Power Company, 401 U.S. 424 (1971)

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390 156Quotedin AFSCME, 33 EPD, at p. 31,628. See also, International Brotherhood of Teamsters v. U.S., 431 U.S., at p. 335 (note omitted). 157Quoted in AFSCME, 33 -EPD, at p. 31,628. See also Griggs v. Duke Power Co., 401 U.S., at p. 430. 158Ibid., at p. 31,628. at p. 31,619. 160Ibid Excerpted in the Court's decision and extracted from, 42 U. S. C. Section 2000e-5 (g) (1970 ed., Supplement IV). l61Ibid., at p. l62Ibid at p. 163Ibid l64Ibid., at p. 31.629. 165Ibid -31,628. 31,631. 166 b'd Q he' 1 'd I 1 ., uo t 1 ng t e AF S ME tr 1 a Jug e s footnote in total, it states: The Defendant argues that it is ironic that the State of Washington was the 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. 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 to use the American legal system to sanction, uphold and perpetuate sex bias. Defendants are struggling to maintain attributes and concepts that are no longer acceptable under the provisions of Title VII. l67Ibid., at p. 31,628-29.

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391 16Blbid., at p. 31,629. In the Brown v. Board of Topeka decision, the "Warren" [U.S. Supreme] Court in its ruling struck down the "separate but equal" legal principle in finding the City of Topeka, Kansas' public school district segregated. Hence, the Topeka school district was judicially ordered to desegregate "with all deliberate speed." See, Brown v. Board of Topeka, 349 U.S. 294, 75 S.Ct. 753 (1955) [Emphasis original]. 169Ibid 170Ibid., at pp. 31,629-30. The trial court's footnote makes reference to Title VII's March 24, 1972 Amendment. Subsec. (a) Pub. L. 92-261, Section 2 171Ibid 1 72Ibid 173Ibid 174Ibid., at p. 31,633. 175American Federation of State, County and Municipal Employees, et'al. State of Washington, et al., 770 F.2d 1401 (9thCir. 1985). Treated in text from "Slip Opinion." See, nos. 84-3569, !34-3590 ,(9th Cir. 1985), p. 2. 176Ibid 177Ibid., at p. 6. 178Ibid., at p. B. 179Ibid IBOlbid IBIIbid., at p. 9. IB2Ib id. IB3Ibid., at p. 10. IB4Ibid 1B5Ibid

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186Ibid 187Ibid., at p. 11. 188Ib id. 189Ibid., at pp. 11-12. 190Ibid., at p. 12. 191Ibid 192Ibid., at p. 14. 193Ibid., at p. 11. 194Ibid., at p. 12. 195 AFSCME, 33 EPD, at p. 31,625. 196Ibid., 49 U.S.L.W., at p. 4634. 392 197Janice R. Bellace, "Foreign Experience with Comparable Worth," -in E. R. Livernash, ed., Comparable Worth: Issues and Alternatives (Washington, D.C.: Equal Employment Council, 1980), pp. 137-172.

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CHAPTER V COMPARABLE WORTH IN PUBLIC EMPLOYMENT Pay based on the comparable worth concept is an ever-emerging trend in public sector employment. Since the mid-1970s, an increasing number of state and local governments .have undertaken substantive efforts to identify, document, and correct female sex and pay employment discrimination in their public job systems. The intent behind these actions is to upgrade the disproportionately lower wages of females working in jobs heavily-occupied by women relative to males working in jobs by men. This chapter reviews some of the initiatives that state and local governments have undertaken, or are. endeavoring to undertake, to attempt to come to grips with the problems of undervaluating and undercompensating their employed females' work and paid wages. The purpose of the chapter examines some of the more highly recognized initiatives taken by state and local governments to deal with the comparable worth problem. In this sense, it is not the intent of this

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part of the chapter's purpose to treat fully what may be considered to be all of the comparable worth actions being undertaken by these entities. Such a feat would be virtually impossible. Further, it is also not the aim here to examine the pay equity initiatives fostered by private employers, private unions, public unions, andthe Federal Government. By and large, there appears to be a steady increase in the number of state and local governments undertaking a variety of actions to deal effectively with the employment problems of undervaluating and undercompensating their employed females' work and paid compensation. The state and local government jurisdictions that have come to the forefront with positive steps base their actions on the needs to, first identify and document sex and pay disparities within their merit employment and, second, to correct or remedy them. Identifying, documenting, and correcting job sex and pay disparities typically start with a formal study of the problem. Formal studies into the matter may also result from an informal investigation into the situation. Whether state or local governments formally or informally take meaningful actions within their jurisdiction in addressing the workforce problemp of undervaluating and

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395 undercompensating the employed woman's work and wages, the end result of any and all such efforts is to remedy the salary depression of the employed women's earned pay, if in fact the sex and pay job disparities are substantiated. Studying to determine whether overt sex and pay employment disparities exist in an entity's personnel system involves three important steps in the process before remedies can be offered for their cures. In this regard, sex and wage inequities have to be identified, documented, and corrected. Identifying, Documenting, and Correcting Sex-Based Disparities Identifying disparate features of an entity's job. classification system is the first important step of the process. Once the sex and pay disparities have been identified, the next step in the process is to document their attributes. Documenting the identified discriminatory aspects of any employment system, whether formally or informally done, serves either to support or refute whether or not the occupational inequities exist. In this regard, also, doc.umentation may also reveal something about the magnitude of the employment infractions and just how pervasive they are in scope and effect. If proven to exist, correcting

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396 the identified and documented employment disparities is the third step in the process of attempting to remedy the workforce problems of job sex segregation and wage discrimination. The inability of a public or private employer to correct the identified and documented sex-based pay discrimination in their employment systems may result in severe legal consequences and burdensome penalties imposed upon them in a court of law, if proven liable. In the foregoing analysis, the three steps of identifying, documenting, and correcting employment sex and pay disparities will be discussed at length. In brief, the three steps make for the general processes of determining whether a public, private or non-profit entity's work classification system, or systems, contains discriminatory elements that may be offensive to the Title VII employment law. As of this writing, at least one hundred pay equity initiatives have been either considered or, in fact, implemented by various of the Nation's state and local governments. Their numbers in this regard represent actions taken in nearly one-third of the states within the union.l Dean et al., further point out that the pay equity initiatives that have been instituted by these state and local jurisdictions

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397 represent an extension of their intent to forcefully carry out their affirmative action policies in seriously trying to come to grips with the employment problems of sex and pay discrimination.2 Contrary to the realization that pay equity actions have been undertaken in approximately one-third of the Nation's governmental jurisdictions, it remains apparent from the research that an overwhelming number of state and local governments have yet to do anything at all in regards to the matter. Be that as it may, slowly but surely, even that circumstance is beginning to change. A great deal of time, however, will be required before the majority of state and local governments is counted among the ranks of those effectively dealing with the employment problems of and undercompensating the employed woman's work and paid wages. For the most part, the hundred or so pay equity measures that have been instituted in the state and local jurisdictions throughout the country have been implemented on a voluntary basis. Although the major purpose behind these actions is to identify, document, and correct sex-based wage disparities in employment systems, the ultimate objective of these measures is to upwardly adjust the wages of underpaid women employed

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398 in predominantly female job classi In scope, the range of th.ese state and local Initiatives covers a broad spectrum of remedial features, all of which are designed and intended to further eliminate sex and pay discrimination against the female worker. These actions include, but are by no means limited to, the commissioning of organizations to perform job evaluation studies, the ordering of same using in-house organ i za tional resources, fund ing -'comparable worth projects and studies, enacting pay equity laws, and adopting pay equity resolutions. The range of comparable worth initiatives is, indeed, broad. Despite how important these measures mayor may not appear to be in effect, any or all of them act to promote the inevitable realization that, truly, the equal pay for equal work value idea is becoming an emerging trend in today's society. Within the range of pay equity actions, initiatives being undertaken by state and local governments are many. They also reflect how each jurisdiction has chosen to attack the inequitable pay problem. For example, in some of the jurisdictions, state governors have used the executive order instrument to order pay equity some, by executive proclamation, have ordered public funds for

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399 comparable worth job evaluation studies: and, some have formally used the -power of the Office of state Governor to openly support the equitable wage concept. Similarly, state legislative bodies have, likewise, used their powers to formally commission pay equity research studies on their states' personnel systems. They have appropriated public monies for the occasion, they have adopted pay equity resolutions, and a few of these bodies have gone so far as to enact comparable worth laws. At the state legislative level, that body will typically hold public hearings, on the subject, and usually this occasion represents their initial involvement in the matter. At the lower echelons of state government, counties, municipalities, townships, and other legislatively-created districts, e.g., school, transportation, and water districts, have also undertaken a variety of meaningful actions with regard to the pay equity problem. In many respects, the actions instituted by these lower state government subunits parallel those initiated the offices of state governors and those of state legislative bodies. That is to say that these lower entities have held hearings on the pay equity matter, they have disbursed monies from their public treasuries to fund comparable worth job evaluation studies, and they, too, have

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enacted. pay equity laws or adopted pay equity resolutions. 400 As mentioned, most state and local government jurisdictions have done little or nothing to address voluntarily the comparable worth problems in their polities. In many respects, resistance may be the chief reason they have deemed it to be in their best interest to avoid dealing with the problem. It appears that three reasons can be offered as explanations for these jurisdictions' inaction with regard to the pay equity problem. First, it seems that their reluctance to do so finds support from the mere claim that they, philosophically or otherwise, staunchly oppose the comparable worth pay principle as a viable wage determination doctrine. Second, in reinforcing their posi tion in thi s regard they find a tremendous amount of support from the Reagan Administration. The Reagan Administration vehemently opposes the comparable worth pay idea and has so informed the u.S. public. The third reason why it appears that the majority of state and local governments resist the idea of implementing comparable worth programs is perhaps more important than the first two. That is, resistance is widespread due to the potential economic costs to these entities of having to pay their undercompensated female workers

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401 comparable worth job wages. In Chapter I, it was pointed out that best estimates project $200 billion would be required to correct the comparable worth problem. Assuming that the $200 billion figure is accurate, it appears that such an expenditure would indeed exert an exorbitant amount of financial pressure on state and local governments, especially when it is apparent that these bodies already are having a difficult time making public revenues match public expenditures. On the other hand, the potential economic costs to state and local governments for correcting job, sex and pay discrimination in their merit employment systems should not bar them from remedying these occupational disparities. The objective should be to equitably compensate individuals on a nondiscriminatory basis, especially the employed female. In this respect, it appears that pay equity efforts will continue to be effected until such time that the employed woman is thoroughly convinced she has attained workforce equality relative to the employed man. Equality in this regard encompasses her fair occupational treatment and economic equity in earned pay. The ongoing aspects of many of these continued pay equity actions are being realized mainly through

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the e'fforts of employed women. Conven tional wi sdom dictates that happenings start at grass root levels. So it is, or has been, in the case of employed women bringing to bear the pressure of the comparable worth movement. Massive comparable worth efforts are being made. In large part, employed women, together with their coalitions--state commissions on the status of women; wome,nls organizations at the national, state, and local levels; public and private unions; and civil rights groups--all, have taken up the task of trying to help educate the masses about the comparable worth concept and what it attempts to accomplish. In this regard, pay equity proponents have sponsored and conducted seminars on the equal work value issue; they have been responsible for creating and bringing about a measurable amount of pressure on national, state, and local policymakers in getting hearings held on the subject in both u.S. Congressional Houses, state legislatures, county legislatures, and municipal city .1 3 counCl s. Moreover, these pay equity support groups have used lobbying campaigns and other related programs to win over the attitudes of both public officials and private citizens towards the comparable worth pay issue. The most important part of these groups' collective pay equity efforts is the educational

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403 significance of the issue to the masses, be they public or private individuals. The message is that women are discriminated against in employment on the basis of their-sex and in their paid compensation: they are concentrated in predominantly female jobs, and these work positions are dead-end and low-paying. In the dissertation's first chapter, one writer characterized the overcrowding of women into limited job classifications as a "classic female job ghetto.," This -constitutes the general aspect of the comparable worth concern. More specifically, and in a more narrow context, the aim of these collective comparable worth efforts is to impress upon public and private employment executives and managers that their job systems may incorporate ,discriminatory elements which perpetuate the undervaluation and undercompensation of the female wage earner's work. Once this hurdle is overcome, the next step is to get these individuals to order that information be collected about, jobs so that perceived job biases can be documented and, if substantiated, corrected. The goal of comparable worth is to equalize the earned wages of women employed in predominantly female occupations relative to those earned wages employers pay to men employed in predominantly male occupations. In short, the

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404 collective efforts of employed women, and those of other social organizations that support the implementation of the comparable worth concept as a viable pay determination means, are responsible for increased acceptance of pay equity. One manner in which the issue continues to achieve salience is through the mechanism of education. Individuals in the private and public sectors, be they workers or citizens, are constantly being exposed.to the employed woman's grievances about her work, wages, and worth being and undercompensated. Aside from the mechanism of educating the public masses about the comparable worth pay problem, there are yet other reasons why the issue has acquired prominence over the last decade. The first reason sterns from women's persistent demands that their work and wages are both undervaluated and undercompensated. For that reason alone, employed women constantly exert pressure upon public, private, and non-profit employers to take constructive, remedial measures with regard to both confronting and correcting the job sex and pay. biases that victimize their occupational status. The emphasis on the pay problem has been responsible for an ever-increasing number of working females taking a keener interest in the merits of the comparable worth

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matter. As a result, even more employed women have taken advantage of the opportunity to acquire more information about the comparable worth topic at educational seminars and public forums. Another reason why the comparable worth controversy has been fueled over the past decade has been because of its exposure in the federal courts. 405 This began in 1977. The widespread attention it gained then really bolstered the pay equity issue and, in doing so, gave it national emphasis. To some employed women, the comparable worth concept provided a contemporary basis .for further addressing and attacking occupational sex segregation and pay discrimination. The job and compensation issue of "equal pay for equal work" had by this time fallen into the distant past. The theme of "equal pay for. equal work value" became its successor. In this regard, women's persistent demands that public and private employers do something to correct the alleged sex and pay disparities that impact the jobs they work resulted from the employed female's desi reo to be the soc ial and economic equal of the employed male. Workforce sex and pay disparities retard the employed woman's progress toward attaining economic equality. Their perceptions that employers devalue the working woman's wage because of her sex and

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406 because of the jobs in which she finds herself employed, usually, are founded. This appears to be the case since it is conventionally accepted that employers do value the ability of the man over the 'woman's. In sum, the educational emphasis placed on the comparable worth job issue and the notoriety it received in the federal courts during the late 1970s are among the reasons why the pay equity question has received widespread publicity. Employed women have adopted it as a means of obtaining equitable job wages for their comparable worth labor value contribution to private, public, and non-profit work organizations. From a contextual viewpoint, the employed woman became reasonably convinced during the mid 1970s' that the Equal Pay Act of 1963 and the Civil Rights Act of 1964 failed as the two federal policies that were enacted to eradicate employment sex and pay discrimination, among other things. Succinctly, the Equal Pay Act did not equalize the wages between the sexes performing equal work because of its four enumerated exceptions. And, more important than that, the majority of employed women simply worked in job situations unequal to those of employed men. In relation to the provisions of Title VII of the 1964 Civil Rights Act, even in the years after its passage,

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407 its standards of proof in substantiating employment discrimination became real obstacles in proving job illegalities on the employer's part. The hallmark of such proof rested on the pretext that a complaining party must prove that the employer intentionally engaged in sex, pay, or other forms of illicit occupational discrimination. Hence, in light of these policy failures, the employed woman sought to effect another test upon, at least, the 1964 Civil Rights Act by fostering the comparable worth pay concept. In this -respect, Title VII of the civil Rights Act was put to the challenge of whether or not it was lawful for employers to occupationally discriminate against working in terms of their employment in sex segregated jobs in which they are paid devalued wages. Concurrent with this thinking about the Civil Rights Act and its ability to address employment claims of sex-based pay discrimination, in their drive to be paid equal work value wages, employed women received a tremendous boost from the nation's first comparable worth job evaluation study. It took place in the State of Washington in 1973. That event alone catapulted the issue to prominence and gave the comparable worth question national significance. It attracted the

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working woman's attention as well as that of the u.s. populace. Since 1973, the compar.able worth job themehas soared in popularity. It provided the employed woman with the proverbial springboard upon which to launch their pay equity crusade to be paid equitable wages for their comparable worth job value contribution. Indeed, employed women did utilize the occasion to call national attention to the ongoing workforceproblems of sex segregation, unequal pay, and low wages. They took advantage of the opportunity afforded to them by the concept's novelty to organizing systematically their efforts to attack the employment problems of job, sex segregation, job devaluation, and unequal compensation. They launched the pay equity campaign in the hopes of being treated better occupationally, and to be paid for their equal work value contribution. They mobilized their support, hoping to bring a speedy resolution to their stated concerns. They summoned the assistance of all employed women, women's organizations, public and private unions, civil rights groups, and the general public. Moreover, they solicited the support of public officials at each level of national, state and local government. By and large, throughout the past decade,

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409 their efforts are responsible for the pay equity gains that have been instituted at the state and local government levels. As mentioned, another crucial factor which promoted the comparable worth job theme was its exposure in the federal courts. This occurred in 1977. It began with the Lemons v. City and County of Denver case, and continued with the litany of the other so-called comparable worth cases beyond that point. In one manner or another, each acclaimed comparable worth case provided the pay equity issue with added public eXPQsure. Lemons placed on trial the job issues of sex discrimination and unequal pay and whether, either singly or jointly, they made for offensive, and thus illegal, employment violations relative to Title VII of the Civil Rights Act. The effects the Lemons case had on the Nation, and on the general thrust of the pay equity issue, were captivating, for several reasons. First, the case achieved stature instantaneously, since it was the first comparable worth lawsuit to be litigated in the federal judiciary. By virtue of this alone, the national spotlight focused on the pay issue's legal me"rits. And, though the plaintiff-nurses did not prevail at trial over the City and County of Denver, the case, nevertheless, did provide other

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potential litigants with basis for effecting Title VII sex-based discrimination claims. 410 What appeared to have been lost in the Lemons case was, subsequently, gained in Gunther. The monumental ruling rendered in the Gunther case became the mechanism by which more employed women demonstrated their support for the comparable worth pay theory. In this regard, an increased number of supporters jumped --o"n the pay equi ty bandwagon in demonstra ti ng the ir support for the equitable wage principle. Though this writer does not consider Gunther to be a comparable worth instance, it did, however, establish a lawful basis that, given certain occupational situations, employment claims alleging sex-based pay discrimination may be entertainable under the Title VII statute. The Gunther Court did, however, stop short of categorically acknowledging that a suing party could legally prevail under Title VII solely on the comparable worth wage theory of recovery. In total, the first comparable worth job study and the so-called litigated pay equity cases are among the major factors of why the equal pay for equal work value issue rose to recognizable heights in the relatively short time it has been before the public.

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411 Further, in relation to the issue's legal contests in the federal courts, comparable worth has had its successes and failures. The defeats outnumber the victories. Despite the manner in which the pay equity issue has been handled in the national court system since 1977, voluntary efforts are being made throughout the United states to attempt to cure the ill effects of sex and pay discrimination against the woman worker. Primarily, movement in the aforementioned is occurring at the state and local government levels. These happenings are taking place as a result of these polities' own willingness to address the occupational problems of job sex segregation and wage discrimination. Pay equity supporters welcome these voluntary actions. They have come in the form of initiatives which address the matter candidly. The actions have resulted from the collective deeds of employed women, public officials, bureaucrats, public union members and officials, and members of the general public, among others. And, although the fruits of these collective efforts have yet to achieve their full manifestations, each significant step toward the stated ends of comparable worth becomes a milestone. It nudges the employment

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412 community toward the social ends of occupational, sex, and wage Contrary to what may appear to be the public policy failures of the Equal Pay Act and the Civil Rights Act', voluntary actions in the fight against all facets of job discrimination continue to be both substantive and meaningful. These useful actions are taking firm roots in the American society at the state and local government levels. On the whole, the state and localgovernmen t jurisdictions that have 'instituted some substantive form of pay equity action within their polity appear to be really trying to eradicate sex-based pay discrimination from their merit job classification systems. itself. In this respect, the evidence speaks for The concerted willingness of state and local governments to eliminate employment disparities in their merit job systems may explain why the employed woman in those job sectors earn significantly higher median wages than the working female who does not. Comparatively, employed women working in the state and local government sectors earn higher wages, on the average, than those employed by the Federal Government and the private sector. According to "Who's Working for working Women," the source claims:

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In state and local governments, women earn 71 cents for every dollar earned by men. In the [F]ederal [G]overnment, the ratio is 63 cents to one dollar, while in the private sector, employed women only 56 cents for each doll ar men ec;irn. What is significant about the relative earnings of females employed in the state and local government 413 sectors versus those earned by employed females in the other sectors is that one would at least expect the wages paid by the Federal Government to be higher than that shown for its aggregate figure. This is said because one would think that, as an employer, the Federal Government would be the entity most anxiously trying to identify, document, and correct female-based sex segregation and wage discrimination. As a result of concrete efforts to el-iminate sex and pay discrimination, assuming that such efforts were massively undertaken by the Federal Government, one would further logically think that the earnings of women in this sector would be proportionately higher. But because they are not, this fact may reflect extensive job, sex and pay biases within the Federal Government's own job classification system. The Dean Survey of State and Local Government Initiatives Based on the actions currently being undertaken by some state and local political sovereigns, one can

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readily ascertain why it is that women's median earnings in this sector are significantly higher when 414 compared to those employers pay women.working in the other sectors. The pay equity initiatives being used by some state and local governments to upgrade the compensation of their underpaid female wage earner were the recent subject of a national survey by Dean et ale The project was sponsored by three organizations. Each works toward the full implementation of comparable worth in public and private employment. They are the Comparable Worth Project, the "National Committee on Pay Equity, and the National Women's Political Caucus. Dean et al., surveyed the state and local government jurisdictions throughout the Nation for the purposes of identifying and determining what initiatives had been adopted by these groups in r"emedying sex-based pay disparities in their merit employment systems.5 Since both the research and literature on the point are relatively new and are constantly being developed, the following discussion in this regard borrows heavily from the researcher's survey findings and conclusions. Generally, Dean et al., found that state andlocal pay equity initiatives were found to be structured upon enacting new laws, amending existing ones, increasing the enforcement of existing employment laws,

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regulations, and rules prohibiting employment discrimination and, also, making actionable executive and legislative policy decisions.6 415 Specifically, the study researches disclosed that, primarily, four substantive measures were used by some state and local governments to identify, document, and correct sex and pay disparities in their employment systems. They are information and data collection, job evaluation studies, pay equity policies and implementation, and enforcement of laws. Dean et al., used the four surveyed state and local initiatives to identify which political entities had undertaken some or all of them to address the pay equity problem within their jurisdictions. Moreover, from this foundation, the researchers were able to isolate some of these jurisdictions' actions in terms of their utility and noteworthy importance to the comparable worth problem and its resolution. In that respect, the following presentation will treat the same in similar fashion. And, it is intended here, the sole purpose of borrowing heavily upon the researcher's work, and, hence, in reemphasizing it, is to further promote the writers' collective aims of helping to bring about another aspect of the employed woman's quest for equality in the workplace--comparable worth.

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416 In many respects, the researchers' four identified surveyed initiatives can be construed as a process involving subprocesses, when taken as a whole. Generally, the subprocesses began with the identification and the documentation of sex and pay discriminatory employment features and ended with the correction of such practices through the upgrading of the proven undercompensated wages and salaries earned by females working in predominantly women's jobs. Acting as individual steps in the process, the subprocesses are critical in that each provides an all important link of the parts to the whole. The whole of the concern, of course, is the consummation of the comparable worth pay adjustment. From the subprocesses, to the whole of the process of attaining the equal pay for equal work value pay adjustment, the four surveyed state and local government initiatives-information and data collection, job evaluation studies, pay equity policy and implementation, and the enforcement of existing antidiscrimination laws--either individually or in conjunction with one another, are very essential to the implementation of the comparable worth wage determination theory, whether it be implemented in public, private, or third sector employment systems. The preceding discussion presencs

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417 the four identified state and local government surveyed initiatives. Each separately treated and, where appropriate, added emphases have been included based on the researchers' main points of interest. Information and Data Collection The "information and data collection" initiative is the cornerstone upon which is built any subsequent pay equity action. The research revealed that it was the single most identified factor in the survey being by some state and local governments. It involves collecting and gathering data about male and female-dominated jobs and their paid wages. Further, it is in this investigatory phase that as much information as possibr"e is collected about the job positions in terms of job content, duties and job responsibilities. Job content is the factor levels of skill, effort, and responsibility required to do the work, and the working conditions under which. the job is performed. Job duties and responsibilities are the job tasks and, among other things, the accountability associated with the work positions. Related to the comparable worth determination, the key element is the collection of information and data about predominantly male and female work If the selection of

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418 jobs is proper in this respect, it is likely that their evaluation will disclose that a number of them will result in the male and female-dominated job classifications being comparable in job worth in terms of efforts, skill, responsibility, and working conditions. Such documentation, through the use of job evaluation, also serves to point out the magnitude of the earnings differential of the sex segregated job positions. job information and data to document sex-based pay discrimination can lead to other avenues for bringing pressure to bear on the situation as a further step in the attainment of a pay equity increase. One such avenue in this regard is the use of the collected job information and data to lobby state and local officials and their appointees, or other of their representatives, to get them to initiate additional pay equity actions. The formal task of collecting information and data about the jobs to be evaluated can be assigned to the central personnel board of a state, county, or city. In turn, these centralized agencies can solicit the collective input of other of their respective state, county, municipal bodies, such as human rights commissions, civil rights 'commissions, commissions on the status of women, labor

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419 departments, or unions. Employees, male and female; can also help these agencies document alleged job disparities. At the lower echelons of state government, as examples, job information and data collection studies can be conducted by organizations or groups appointed by the county chief executive or its legislative body. Further, the same can also be administered by their personnel boards, school district boards, or entities of other specially-created governmental bodies, such as human resource boards. At the municipal government level, job information and data collection studies can be conducted by mayors' offices, city councils, city personnel departments, or human or civil rights boards. In conclusion, job information and data collection become an essential step in the process of documenting employment, sex and pay discrimination. It is in this documentation that undervalued, undercompensated sex segregated female jobs are likely to establish the existence of gender-based pay disparities. As the researchers pointed out, the information and data collection instrument is the one initiative found to have been used by more state and local governments than any other in their aim to remedy sex and unequal pay discrimination in their merit employment systems.

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420 Job Evaluation Studies Once information and data about the predominantly male and female work positions are collected, the next task in the process is to measure their worth and to rank them accordingly. The job evaluation study accomplishes these two feats. And, moreover, relative to the pay equity consideration, once the evaluated work positions. have been measured and ranked, the result of the process yields the relative comparable worth values of the job. In arriving at this outcome, the content of the jobs are evaluated and measured in terms of the requisite levels of skill, effort, responsibility, and working conditions required the jobs. Work is comprised of duties and tasks. The duties and tasks form job content. Job content, further, is made up of job factors. Job factors are the skill, effort, responsibility, and working conditions upon which employers base pay schemes for the individuals performing the job duties, job tasks, and job content. In making the comparable worth job evaluation determination, predominantly male and female jobs are evaluated and measured on the basis of each position's identifiable job content. Next, the measurement of the

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421 evaluated work positions is consummated by ascribing, job value points to the criteria. Once evaluated and the jobs are then ranked, based on their numerical point value assignments. At the conclusion of the job ranking step, two significant things may be evident with respect to the comparable worth determination. First, if the job evaluation methodology has been correctly designed, it should readily identify the relative equal worth job values of the predominantly male and female work positions. Second, and more importantly, when the work positions' wages are affixed to the jobs, these wages conceivably disclose what may be considered to be compensation disparities in the salaries. The process by which job evaluation is used to determine the relative comparable worth value of predominantly male and female jobs is done in virtually the same manner by which almost all jobs have been traditionally evaluated and measured in arriving at the paid compensation of the work positions. In many respects, this is what makes the comparable worth wage determination doctrine effective. With few modifications to its applied methodology, e.g., the selection of its own evaluative criteria and so forth, the comparable worth method determines the relative equal value of jobs in a way that historical

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422 job evaluation techniques have been used to do so. In this sense, potentially, comparable worth exposes the pretenses of traditional job evaluation methods by revealing their biases and disparities in determining the job worth of work positions which are heavily occupied by females and males. Relative to comparable worth job determinations, the process by which the jobs are selected, evaluated, assigned points, and ascribed relative worth involves intricate features and the selection of a variety of p'ersonnel. At the state, county, and municipal government levels, a committee of individuals usually performs these tasks. The group may consist of public administrators, union officials, women's organization representatives, and hired consultants. These personnel select the male and female jobs which comprise the predominant job categories by gender, and they evaluate the positions by assigning point values to the jobs on the basis of their evaluated degree of identifiable job content--skill, effort, responsibility, and working conditions. Once these steps are completed, the jobs' paid earnings are attached to the positions to ultimately identify and document sex-based compensation disparities among and between male and female jobs.

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The sex and pay disparities, together with the apparent realization of the undervaluation and undercompensation of women's work and wages, are made known as a result of the bottom line determination that the evaluated male and female job classes are comparable in job 'worth points, but are paid at significantly varying wage and salary rates by the employer. Pay Equity Policy and Implementation The third initiative being undertaken by state, county, and local governments is pay equity policy and its Prior to state and local governments implementing this initiative, however, it is essential that the sex and wage discrimination be identified and documented. As pointed out, the identi fication and documenta tion of sex-based earning discrimination come from the important phases of information and data collection and job evaluation studies. And, upon evidence that sex-related compensation disparities exist in their public employment systems, some state, local and municipal governmental entities have actually implemented a comparable worth pay policy within their jurisdictions. In this regard, these jurisdictions' pay equity policies may be in the form of a law or, an official

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424 declaration of support. forthe pay equity principle embodied in a statement or resolution. Whether by policy or resolution, the declarative intent of these measures is to reflect unilateral support for the ongoing need to correct sex and pay discrimination in their merit employment systems. Another aspect of the meaningfulness behind these initiatives is that they officially recognize the employed woman's right to be paid equal work value wages for comparable job worth contribution. The continued recognition of the pay for comparable worth concept in this manner fosters its realization in public sector employment, primarily at the state and local government levels. Like almost all other social legislation enacted within the United States, political support remains a very important ingredient of meaningful governmental action and societal chahge. So it is with comparable worth .. Without mobilized political support, at best, comparable worth will turn out to be an obscure thought lost in the Twentieth-First Century. But political support for the pay equity idea is being mobilized. And although government at each strata has yet to overwhelmingly adopt, embrace, and implement pay equity policies in their respective political subdivisions, their numbers continue to become

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significant. The failure of thase entities, including the Federal Government, to deal with the victimization of working women by occupational sex segregation and wage discrimination appears to be political irony. Employed women must never forget that they are both taxpayers and voters. They therefore possess both the economic power and the political numbers to bring about the needed legal and social changes to improve their overall status. Whether one talks in terms of the woman's cultural, economic, legal, political, or social personage, under the Constitution of the United States, she has the inalienable right to receive the same egalitarian protections afforded men. Enforcement of Existing Laws The enforcement of a jurisdiction's laws, regulations, or rules which proscribe employment discrimination is the fourth instrument researchers identified as being used by some state and local governments to combat sex-based pay violations in their public merit systems. Short of implementing a pay equity policy, the execution of these measures by most, if not all, state and local governmental polities is helpful in that, if their administration and enforcement are effective, they help to narrow the

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male-female earnings disparity, in the final analysis. The effective administration and enforcement of a jurisdiction's laws, regulations, and rules which prohibit, among other things, sex and wage discrimination accomplish this by at least keeping these occupational maladies from escalating and thereby becoming more disparate. The actions taken by these non-federal, lower government units are based upon the administration and enforcement 'of equal,pay laws, civil rights laws, fair employment practice statutes, and other official regulations and rules which make employment discrimination unlawful. When taken as a whole, the four surveyed initiatives being undertaken by state and local governments--information and data collection, job evaluation studies, pay equity policy implementation, and the enforcement of antidiscrimination laws, regulations, and rules--combine to further retard the effects of female job segregation and pay discrimination in state, county, and municipal public employment. By dividing the four surveyed initiatives along the lines of their identification, Dean et al., presents a summary of those states, counties, and municipalities that have undertaken one or more of the aforementioned pay equity actions to address the

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427 unequal pay concern within their jurisdictions. As of this writing, in all, at least twenty-nine county, and local governments have begun investigating the pay equity problem vis-a-vis information and data collection: at least seventeen have begun job evaluation studies: at least nineteen have instituted or implemented some aspect of a comparable worth pay policy: and four have accepted for formal investigation allegations into pay equity vi9lations prohibited by 7 their jurisdictions' laws, regulations, and rules. In a action examining the claims of sex and pay discrimination, a California county took legal measures against a private employer located within its situs. The county's complaint claimed that the private employer discriminated against its employed females on the basi s of the ir sex and in their pa id compensa tion. 8 Public sector Efforts: Specific Data Dean et al., pointed out that state and local governments have undertaken the surveyed initiative of information and data collection to identify. and document job segregation and female wage discrimination more than any other entity.9 They identify the thirteen states of Iowa, Kentucky, Maryland, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New

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428 Jersey, North Carolina, Oregon, and Pennsylvania as having begun or completed documentation of comparable worth pay discrepancies in their state civil service systems.IO Similar actions also either have been completed or are in the process of being concluded in the states of Hawaii, Virginia, and Washington. 11 In and the researchers point out that there has been a "flurry" of the same activity in places like Berkeley, Fresno, Los Angeles, San Fr.ancisco, South Lake Tahoe, and in Almeda and Sonoma Counties, California.12 In June 1985, Mayor Torn Bradley of Los Angeles signed a decree whereby the City of Los Angeles agreed to pay the municipality's female employees comparable worth wage increases over a three-year period. The wage adjustments are expected to cost the city in excess of $12 million dollars per year. Dean et al., found that the most significant feature about the surveyed initiative of job evaluation studies is that they were being funded by state legislatures, county legislative bodies, and city councils.13 The study further points out that monies intended for this specified purpose may be targeted to a specific group, officially commissioned to study the pay equity problem. It may be allocated to a or

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429 local government's personnel budget, its respective labor departments, legislative committees or subcommittees, commissions on the status of women, other agencies appointed to do the job evaluation study, or set aside to procure the services of human 14 resource consultants to do the job evaluation study. At the state government level, slightly less than one-third of the states have either begun or completed job evaluation studies of the pay for equal work problem. These include the states of Alaska, Connecticut, Idaho, Illinois, Iowa, Kentucky, Michigan, Minnesota, Montana, New Mexico, Ohio, Oregon, Washington, and Wisconsin. At the local level, specially-created legislative districts, mainly school districts, and cities have endeavored to do the same likewise. Included are the school districts of Chicago, Illinois: Manhattan Beach, Sacramento, and San Lorenzo, California: and the municipalities of Hunter College, New York; Virginia Beach, Virginia: and Be evue, Renton, an Seatt e, Was Ing on. According to Dean and the researchers, only six states and nine municipalities have either instituted pay equity policies or were in the process of implementing them at the time of their study's publication. These include the states of California,

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430 Idaho, Iowa, Minnesota, New Mexico, and Washington. The cities are Fresno, Long Beach, Los Gatos, and San Francisco, Colorado Springs, Burlington, Virginia Beach, and Bellevue and Renton, washington.16 As the writers point out, achieving a comparable worth pay adjustment is the desired outcome. Consequently, the implementation of pay equity policies by state and local governments has become the most significant tool available to remedy .the undervaluation and undercompensation of the underpaid employed woman. As previously mentioned, state and local enforcement of existing laws, regulations, and rules, if effective, can act to identify and document sex-based pay discrimination in public employment and, further, remedy them. Dean et al., say that the enforcement of fair employment practices, civil rights, and equal pay laws can result in the attainment of pay equity for women.17 The states of Alaska, California, Montana, and Oregon have instituted pay equity actions as policy mandates. And, in at least two of these jurisdictions, Dean et al., note that legal claims have been effected against both public and private employers on behalf of employed women who are being paid less than equal vaiue job wages.18 The researchers provide

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a summary of the initiatives they identified as being by the "respective state and local governments. 431 Similarly, the researchers provide a summary of pay equity or comparable worth legislation introduced in some of the state and local government jurisdictions throughout the country. The data are contained in Tables I and II. Some of the proposed measures led to the bills' subsequent enactment. And, in turn, pay equity policy mandates along these lines have resulted in job information and data collect jon exercises, pay equity job evaluation studies, implemented pay equity policies, and a furtherance of the enforcement of existing laws prohibiting employment discrimination. Washington State: A CaseIn Point By and large, the first public employment comparable worth job evaluation study epitomizes the difficulty and frustration of implementing the equal pay for equal work value principle as a viable pay doctrine within the u.S. society. The study was a monumental one. It occurred in the State of Washington in the years of 1972 and 1973. In its own way, the 1972-73 Washington State comparable worth job evaluation study of its public sector jobs hails as a

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Information and Data Collection State California Hawaii Iowa Kentucky Maryland Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada New Hampshire New Jersey New York North Carolina Oregon Pennsylvania Vermont Washington Local Fresno, CA San Francisco, CA Sonoma County, CA South Lake Tahoe, CA Alameda County, CA Colorado Springs, CO Berkeley, CA Montgomery MD los Angeles, CA (Sch. District) STATE AND LOCAL GOVERNMENTS WHICH HAVE TAKEN PAY EQUITY INITIATIVES DESCRIBED IN "WHO'S WORKING FOR WORKING WOMENl" Pay Equity Civil Service Job Evaluation Policies and Iml!lementation Studies Policies Implementation State State State Alaska California Idaho Connecticut Iowa Iowa Univ. emply.) Idaho Minnesota Minnesota Illinois Washington Minnesota Univ. em ply.) Iowa New Mexico Iowa Univ. emply.) Washington Kentucky Michigan Minnesota Minnesota Univ. emply.) Montana New Mexico Ohio Oregon Washington Washington (nonteaching Univ. emply.) Wisconsin Local Local Local Tucson Sch. Dis\., AZ Fresno, CA Long Beach, CA Chico Sch. Dist., CA Los Gatos, CA Colorado Springs, CO Manhattan Beach, Sch. Dis!., CA San Francisco, CA Burlington. VT Sacramento Sch. Dist., CA Virginia Beach, VA San Lorenzo Sch. Dis\., CA Bellevue, WA Hunter College, NY Renton, WA Virginia Beiich, VA Bellevue, WA Renton, WA Seattle, WA These initiatives do not include those which are pending nor those which have been collectively bargained. Enforcement of Existing State Laws State Alaska California (counties of Madora, Bank of America, Sebia) Montana Oregon Source: "Who's Working for Working Womenl A survey of State and Local Pay Equity Initiatives" (c) 1984 by the Comparable Worth Project, the National Committee on Pay Equity and the National Women's Political Caucus, p. 32.

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RECENT PAY EQUITY LEGISLATION Since state legislatures have considered 37 laws or resolutins on comparable worth:" 26 have been enacted or adopted; 7 have died or been defeated; and 6 \\fI!re pending as of September 1. 1963. Bill or Primary Pending State Number Sponsor Enacted Adopted 9 Defeated Description Alaska AS'16.S0.0lO Unknown 1960 Adds specific Comparable Worth (CS) language to fair employment practices (FEP) law. California GOV!. Code Lockyer 1981 Civil service": policy; annaual 1/19627.2 report. California Chapter 641 Lockyer .1963 Civil service: higher education:' Statutes of 1963 poliCV. report study California AB 1579 Tanner 1963 Adds specific CS language to FEP law California Chapter 906 Klehs 1963 Prohibits local government Statutes of 1963 ordinances or policies which preclude consideration of CW California Resolution Cha.pter III Tanner 1963 Creates Commission on Status of Statutes of 1983 Women (CSW) task force on CW Connecticut #5-200A Peck 1979 Civil service: pilot study. then full 1980 job evaluation OE) study 1981 Hawaii SR 15. SOl HR 278 Fukunaga 1981 Urges employers to adopt CW policies HR 208 HOI Fukunaga 1982 Civil service; report. recommendations .Idaho #67-5309B Unknown 1977 Civil service; JE study illinois Unknown 1982 Civil service; pilot study. $10.000 Illinois HB 1646 Currie' 1983 Ch'il service; JE study. report. (Continued on next page)

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RECENT PAY EQUITY LEGISLATIONcontinued Bill or Primary Pending State Number Sponsor Enacted Adopted 9 Deieated Description Illinois HB 1647 Currie 1983 Amends Equal Pay Act (EPI\) to substitute CS standard Iowa HF 313 Unknown 1983 Civil service: policy. JE siudy. recommendations; S 150.000 (or JE study Kentucky SR 50 Unknown 1982 Civil service; JE study; S 14.000 (or JE study Maine HB 1156 Unknown 1981 Civil service; Pilot JE study (or 520.000 Massachusetts HB 2421 Gray 1983 Civil service study; HB 6547 recommendations; 575.000 (or study Michigan HB 6697, Bullard 1978 Adds specific CW language to FEP 5B 279 Arthurhultz 1981 Michigan HB 6076 Ellioll 1982 Amends wage and hour law to prohibit wage secrecy policies Minnesota #43A.02, Berglin 1982 Civil service; policy; requires #4SA.OS, allocations based on 1979 JE study #43A.18(8) HB 577 Lumpe 1983 Civil service: policy; report; recommendations HCR18 Lumpe 1983 Civil service: task (orce; study o( state compensation system Montana 58425 Regan 1983 Civi) service: policy, preliminary study, annual report. Nebraska LR 263 Marsh 1978 Civil service: preliminary study Nebraska LB Vickers 1982 Civil service: deletes discrimin'l1ory (actors (rom salary survey (Continued on next page)

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RECENT PAY EQUITY LEGISLATIONconlinued Nevada Nevada New jersey New Oregon Oregon Pennsylvania Washington Washington Wisconsin Bill or uw Primary Pending Number Sponsor Enacted Adopled 9 Defealed Descriplion AB 30 Dini 1963 Civil service: salary selling criteria 10 include CW ACR 48 Dini 1983 Civil service: preliminary sludy SB 1833 Liprpan 1983 Civil service: task force; study job evaluation 5300,000 HB 501 Luna 1983 Civil service: $3.3 million in salary increases to lowest paid Wllrkers HB 2969 Hendrickson Adds specific CW language to FEP law SB 484 Hendrickson 1983 Civil service: jE study; 5300,000 for jE study HB 1130 Harper 1983 Adds specific CW language to FEP law RCW #41.06.010 Unknown 1977 Civil service, including higher 28B.16.100 education: requires biennial update of 1974 jE sludy not yet implemented RXW #41.06 Lee 1983 Civil service: policy, TOyear implementation plan; 51.5 million in salary increases to lowest paid workers #230.09 Unknown 1977 Civil service: policy Four other states, Georgia, North Dakola, North Carolina, and West Virginia, have enacted fair employment practices laws (FEP) that broadly prohibit discrimination in employment and are included in a separate lable describing all state FEP laws. Civil service means slate workers unless otherwise no Ie [d) [sic). Source: "Who's Working for Working Women" A Survey 0' Slate and local Pay Equily Initiatives" (c) 1984 by the Comparable Worlh Project, National Commillee on Pay Equity and NatioMI Women's Political Caucus, pp. 33.

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436 classic. Being the premiere pay equity job evaluation study, it precipitated similar ones undertaken by other state and local governments in their attempts to deal with sex and pay discrimination thought to exist in their public merit employment systems. The Washington State pay equity job evaluation study was done for the express purpose of identifying and documenting the extent of pay discrimination in some of its jobs. The 1973-74 study concluded that females who worked in predominantly women's jobs were undercompensated relative to males who worked in predominantly men's jobs. The women were underpaid, the study disclosed, because they were occupationally segregated into predominantly female job classifications, and their work and pay were devalued. The study concluded that the identified discriminatory sex and wage disparities were responsible for women being paid disproportionately lower wages for the jobs they worked. It was also found that the documented job disparities were ongoing aspects of the State's employment practices. The failure of the Washington State government to correct the documented sex-based pay problems in its merit employment systems seems ironic when one recognizes that the entity knew about the situation for

PAGE 448

years. On the other hand, however, the situation does not appear at all .ironic when one balances the state's posture with the degree to which the pay equity principle was, and is, staunchly opposed. It is opposed by the majority of state governments, local governments, the Federal Government, and private employers. And, in some instances, if these entities do demonstrate their support for the pay equity idea, their positions in this regard may only reflect mere tokenism, rather than a sincere desire to attack the discriminatory sex and pay problems that exist in their employment systems. This appeared to have been the situation in the State of Washington. The Washington state comparable worth experience exemplifies the difficulties and frustrations inherent in implementing the pay equity concept as a wage determination practice. In Washington it appears that the state resisted the idea of correcting the sex and pay discrimination known to exist in its job classification system. In large part, the four surveyed initiatives provide a workable foundation for understanding what took place in Washington State and just how that polity handled, and perhaps mishandled, the sex and pay employment discrimination in this instance. The

PAGE 449

surveyed initiatives are employment information and data collection, job evaluation -studies, pay equity policy and implementation, and the strengthened enforcement of existing antidiscrimination employment laws. In one manner or another, each makes for an orderly and systematic process upon which the pay equity issue can be addressed and rationally resolved. Though the Washington State government at one time or another formally embraced the use-of one or all of the surveyed initiatives, their inaction in carrying through with the objective to correct the apparent job, sex and pay discrimination eventually became the reason the entity was sued. The failure of the Washington State Government to resolve the pay equity problems in that jurisdiction abrogated what could very well have been the first voluntary comparable worth program in the United States. Blatant sex-based discrimination existed in Washington, and the State's efforts to correct these problems were dismal failures. The state was sued in federal court. At the lower district court level, upon being satisfied that proof was sufficient to hold the State liable for its actions, the trial judge imposed severe penalties upon the polity, in an attempt to remedy the discriminatory employment practices from a

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439 legal viewpoint. The sex and pay discriminatory employment practices the Sta te engaged in were both well-identified and documented. The proven undervaluation and undercompensation of the State's female employees' work and wages were both systemic and ongoing. The following discussion examines the Washington State comparable worth experience from its beginning in 1973 to the present. Its handling in this regard is intended to illustrate the magnitude of the complexities, difficulties, and frustrations that confront pay equi ty supporters i,n their bid to effect the implementation of the comparable worth pay principle in private and public employment. In 1972, an extensive job evaluation study was commissioned to examine the top managerial jobs in the State of Washington's executive branch. The State had two purposes for this evaluation of its higher-level jobs. First, it was done to make a comparative analysis of the compensation Washington State paid for its work positions compared with what other state governments paid. The evaluation study's second objective was to upgrade the earned compensation of those executive positions found to be undercompensated, if this could be supported by the exercise. The results of the 1972 job evaluation study led to

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significant pay increases for the governor's position and for some other top-level managerial posts within the Washington State government's executive branch. 440 For the most part, the same rationale and job evaluation methodology was used in 1973 to evaluate other jobs in the Washington State Merit Employment System. The scope of the 1973 job evaluation study, however, extended far beyond the 1972 examination of executive level positions. It reviewed a host of other work positions and their pay rates. The 1973 job evaluation was conducted by the State at the insistence of Normal Schut, then executive director of the Washington Federation of State Employees (WFSE). At his request, former Governor Dan Evans ordered a review of all jobs within the Washington State government merit classification system. The State of Washing.ton had a dual classification system. Similar to the purposes for which the 1972 job evaluation study was conducted, the express object of the 1973 job study was to determine whether the State of Washington's classification systems incorporated discriminatory features and whether the government's pay practices for some or all of the lower-level work positions were discriminatory. Like most other public sector employers, it was the custom of the Washington State

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441 government to link the work. positions' wage and salary rates to existing ones used by the private sector. The practice itself was a point of contention by the WFSE public union. The WFSE union argued that the use of existing market rates taken from the private sector and applied to public jobs for pay purposes devalued the wages of the-latter, since the former traditionally resulted in private sector employees being paid less. In this respect, the union also claimed that the wages and salaries paid for the jobs in the Washington State government would reflect the same wage depression as that, they further alleged, characteristic of wage payments for work in private sector employment. The 1973 Washington State job evaluation study confirmed that a significant number of jobs within the state's job classification system were undercompensated. The undercompensation of the positions resulted from the depressed wage and salary rate payments which the state adopted from those existing in the marketplace. Relative to these findings, during the latter part of 1973 and in 1974, the Washington State government endeavored to resolve many of the identified employment disparities in its job classification systems. It ordered a consolidation of the State's two job systems and,further, sought to bring its college

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442 and university employees under a unified personnel system. The jobs were to have been absorbed into the Washington State Department of Personnel (DOP) system. The higher-level college and university employees had heretofore been under the jurisdiction of the State's Higher Education Personnel Board (HEPB). As a result of the 1973 job evaluation study, HEPB jobs had to be re-classified within the DOP's system, and uniform pay rates had to be assigned to the positions. Once the HEPB jobs were assimilated into the DOP's job classification the idea was to "peg". them to wage and salary rate prevailing in the private sector. Again, the WFSE union objected to the state's practice on two grounds. First, it said that the pay practice of attaching sector wage rates to public sector jobs for compensation purposes excluded altogether the wage and salary rates paid by other state and local jurisdictions for comparable job positions. Second, the union cited this as further depressing the pay of the predominantly female jobs in Washington State's employment classification systems. As a result of the union's renewed allegations, Governor Dan Evans ordered a second job evaluation study. This time, however, the intent of the study was specifically aimed at identifying and documenting the presumed,wage disparities thought to exist in the

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State's predominantly male and' female job classifications. This took place in 1974. 443 That year, Norman D. Willis and Associates, a Seattle, Washington-based employment management consultant firm, was hired by the State to conduct the job evaluation study. willis' consulting group had previously done the State's 1972 job study. For the 1974 evaluation, a total of one hundred and twenty-one jobs were selected for the review. Some of the job positions were those from the .State's HEPB and DOP job classification systems. Nearly seventy-percent of the job incumbents were of the same sex. Male jobholders made up approximately seventy-percent in fifty-nine of the one hundred and twenty-one selected job positions, and female up almost seventy-percent of the remaining sixty-two jobs. A committee of thirteen individuals was selected to evaluate the work positions. This committee was comprised of Washington State government officials, private enterprise business personnel, and WFSE union representatives. Willis and Associates had to train committee members to evaluate the jobs. The one hundred and twenty-one work positions were evaluated on the bases of the following factors and subfactors, which made up their job content .19

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Factor Knowledge & Skills Men tal Demands Subfactor Job Knowledge Managerial Skills Interpersonal Communica tions Latitude for Independent Judgment 444 Nature & Extent of Problem Solving Accountability Working Conditions* Freedom to Take Action Nature of Impact Upon End Resul t Physic?l Effort Hazards Discomfort *Applicable to non-managerial jobs only. Information and data about the job positions were collected. Then the positions were evaluated in terms of their identifiable job factors and subfactors. On the .basis of these elements, job worth points were then assigned to the evaluated job content. Lastly, the jobs were ranked, based on their numerical point value assignments. The study concluded that, on the basis of the evaluation, job worth point assignments and the job rankings in the sixty-two predominantly female job categories, women earned aggregate monthly wages of approximately eighty-percent of those earned by the fifty-nine male-dominated positions. The job evaluation study demonstrated that the predominantly

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445 male and female jobs were of comparable worth as evidenced by their job worth point value assignments.20 The results of the Washington State 1973-74 job evaluation study and its conclusion turned out to be significant for several reasons. First, it triggered a further call by the WFSE union that the jobs within the Washington State Civil Service system be incorporated into a uniform job classification structure. Second, the study concluded that, instead of tying private sector pay rates to public sector jobs, wage and salary rates should have been remunerated on the basis of the jobs' comparable worth. Third, the job evaluation study proved that the Washington State female public employee, at that time, was undercompensated as a result of being employed in sex segregated occupations. The overall effect of this was wage discrimination The results of the 1973-74 job evaluation study led to a follow-up one in 1976.21 Willis and Associates were again hired by the State of Washington to measure the worth of some jobs in the DOP and HEPB systems.22 The second study's main task was to make alternative recommendations to the State on how to correct the identified sex and wage disparities found during the first job examination process. At the conclusion of the first job evaluation trial, in 1974,

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446 willis and Associates had recommended that Washington Sta te implement a "Total Comparable Worth" program. Such a program would have brought the undercompensated salaries of the State's female workers up to reaso.nable comparable worth job value levels. Hence the 1976 reevaluation or follow-up study was requested to explore the merits of corning up with a less than "total comparable worth implementation," or one "partial" in scope.23 According to Trieman: An alternative 'partial implementation' was to bring the pay for all jdbs up to the policy line [the ranked jobs were plotted on a graph based on job worth points, and the 'policy line' was established using regression analysis] but maintain the salaries of overpaid jobs at prevailing rates. This have been the more costly approach. Trieman goes on to say that the willis and Associates consulting firm estimated that in 1976 the implementation of comparable worth on a partial basis would have cost the State of Washington approximately $38 million per year.25 Since the 1973-74 and the 1976 job evaluation studies, the State of Washington has yet to implement a uniform job classification system. And it was not until recently that the Washington state Legislature voted to approve public funds for the comparable worth wage adjustments.26 In large part, the lack of

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447 meaningful action on the part of Washington State speaks to the difficulties and frustrations which thwart the efforts of pay equity proponents to make comparable worth realizable. The difficulties are borne out by the fact that the Washington State government had actually known for nearly ten years about the pervasiveness of the overt job sex segregation and wage discrimination in its public employment system. The 1973-74 job evaluation study and the follow-up one in 1976 made these realizations inescapable, yet despite these documentations, the economics and the political aspects of the situation overshadowed the utility of that government stepping forth and trying to correct the known sex, )ob biases and pay discrimination.' On the other hand, however, the frustrations are also overwhelming because, even if that governmental polity refused to make the needed pay equity adjustments in the name of comparable worth, such adjustments should have been forthcoming since the evidence clearly demonstrated that job sex segregation, resulting in female wage discrimination, was widespread in the Washington State's merit employment systems. The State's reluctance to take the necessary remedial action led to the State of Washington being sued. The suit was initiated in the federal court by the American

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Federation of State, County, and Municipal Employees (AFSCME) and the Washington Federation of state Employees (WFSE) unions. Its text was discussed in Chapter IV. Summary 448 As an equitable compensation doctrine, the comparable worth theory of wage determination continues to become more firmly rooted in the u.s. work society. This is because traditionally female jobs are undercompensated on the basis of equal work value, and there appears to be a growing awareness about the pressing concern to correct such pay disparities. To a large extent, pay equity educational programs assist greatly in further understanding and recognizing the. historical employment biases of sex and wage discrimination, among other forms. Whether in the public or private employment sector, and more so in the former than the latter, meaningful measures are being initiated to equitably determine the extent of occupational sex segregation and its resultant impact of paying less than job worth wage payments to employed females. State and local governments have undertaken primarily four important initiatives to address the less than equal pay for equal work value employment

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compensation problem. They are information and data collection, job evaluation studies, pay equity policy and implementation, and the enforcement of existing laws, regulations and rules prohibiting employment discrimination. A few state and local jurisdictions have not only formally embraced the pay equity principle through laws and resolutions, but they have also granted comparable worth pay adjustments. 449 The first comparable worth job evaluation study was conducted in 1973-74 in the State of Washington. It was done solely for the purpose of determining the wage disparity presumed to have been associated with predominantly male and female jobs. In large part, the failure of the Washington State government to implement a voluntary comparable worth program, even when the State knew that job sex segregation and compensation discrimination were overt, represents both the difficulties and frustrations likely to confront pay equity advocates constantly. The case is full of enriched experiences and learned importance. Each will be realized more fully as the likely resolutions to the problems presented by comparable worth continue to emerge. One such experience to be derived from the Washington State instance is encompassed in the prevalent difficulties and frustrations which pay

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450 equity proponents faced in their overarching aim in implementing the equal work value wage determination theory in public and private employment. They seek to do this on a national basis. The instance demonstrates that such not only involves a tremendous amount of resolve on the comparable worth litigants' part, but also of those employers who oppose the pay idea. The pay equity cases are complex and, because of this, they require an abundance of financial resources. In this .respect, further, the complexities and monetary obligations associated with lawsuits regarding the issue are profound. The processes are both complex and overwhelming and, at the same time, burdensome. Nevertheless, it sometimes becomes essential to what may appear as insurmountable feats in order to effect meaningful social change. Arguably, in the final analysis, such may inevitably make for a better society. Another valuable experience which emerges from the Washington State experience is the legal ramifications resulting from a work institution's inability to substantively come to grips with the discriminatory features of its employment system. In this sense, the lesson can be heeded to and, hence, have real benefits to the tripartite employers that comprise the public, private, and non-profit employment

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451 sectors. In terms of the learned importance, as it bears relevance to the workforce problems of occupational sex segregation and wage discrimination and their existence as contemporary societal problems, as the district court judge emphatically stated in the las t chapter, "Ti tIe VI I remed ies are now," and, therefore, should not be tools of the buried past. -Concomitantly, whether pay equity actions are voluntary or involuntary, the employment disparities of job sex segregation and wage discrimination perpetuated upon the employed female are resolvable. In the long run, it appears that voluntary comparable worth actions may be more desirable than Title VII court-imposed remedies in correcting the problemsA The Washington State experience further serves as a testament to this observation Involuntary actions resulting from lawsuits, and culminating in adverse judgments against employers, may be necessary to rid society of illicit employment discriminatory forms. On the other hand, other approaches exist to achieve the same outcome. The orderly handling and disposition of the comparable worth problem and its considerations are a must. Voluntary actions are suggested in this regard because

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the process seems to work in the best interest of all and for the good of the whole. 452 The next chapter summarizes what this treatise has presented about the labor force problems of job sex segregation and the undervaluation and undercompensation of the employed woman's work and wages. The traditional classification of men into male job categories and women into female job categories has been responsible for the lower wages paid to working women. After the summary, the conclusions reached by this research study are discussed.

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NOTES CHAPTER V lVirginia Dean, et al., "Who's Working for Working Women: A Survey of State and Local Government Pay Equity Initiatives" (Washington, D.C.: Comparable Worth Project, National Committee on Pay Equity, and National Women's Political Caucus, 19'B4), p. 1. Hereinafter cited as "Who's Working for Working Women?" 2Ibid. 3United States Equal Employment Opportunity Commission, Hearing on J,ob Segregation and Wage Discrimination (Washington, D.C.: Government Printing Office, 1980). Pay equity have also been held in the u.S. House of Representatives. See, Pay Equity for Work of Comparable Value, Parts I and II, Joint Hearings before the Subcommittee on Human Resources Civil Service Compensation and Employee Benefits of the Committee on Post Office and Civil Service, Ninety-Seventh Congress, Second Session (Washington, D.C.: Government Printing Office, 1983). 4 Who 's Working, for Working Women: A Survey of State and Local Government Pay Equity Initiatives" (Washington, D.C.: Comparable Worth Project, National Committee on Pay Equity, and National Women's Political Caucus, ,1984), p. 1. Hereinafter cited as Who 's Working for Working Women?", p. 1. 5Ibid p. v. 6Ibid p. 5. 7 Ib id., p. 26. B1bid 9Ibid., p. 9. 10Ibid. llIbid., pp. 7-8. l2Ibid. p. B.

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13Ibid., p. 12. 14Ibid 15Ibid., .pp.12-20. 16 Ib d., p. 2 0 17Ibid., p. 8. l8Ibid 454 19Donald Trieman, "Selection from Job Evaluation: An Analytic Review, in J. A. Grune, ed., Manual on Pay Equity (Washington, D.C.: Conference Publications, 1980), p. 106. 20Ibid., p. 106 2 1 Ib d ., p. 1 0 7 22Ibid 23Ibid 24Ibid 25Ibid

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CHAPTER VI Comparable Worth: Summary and Conclusion In summary, the objective of comparable worth is to correct the traditional undervaluation and undercompensation of the employed woman's work and wages. As a modern-day wage determination doctrine, pay based on the comparable worth concept is an emerging truism in public and private employment. Primarily through voluntary means, state, local, and private work institutions have begun to substantively deal with the workforce problems of female job sex segregation and wage discrimination. Though the main impetus behind these collective actions is to upwardly adjust the earned wages of the employed female whose work and wages have been historically undervaluated and undercompensated, the emphasis placed on these efforts' broader aim focuses on the goal to eliminate the ongoing aspects of employment, sex and pay discrimination. By and large, employed women and pay equity supporters regard marketplace sex and pay discrimination biases as the disparate elements which

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perpetually cause female work positions to be paid lower wages. The effects of these discriminatory elements is also ,viewed as the reason why employers pay predominantly female job classifications lower relative earnings than those they pay to predominantly male occupied job classifications. Though the job performance of some of these predominantly male and female job classes may be of equal value to employers, the sexes' relative, aggregate, earned compensation for the work performed is significantly different. Women earn about fifty-nine cents for every dollar men earn, as a median. Comparable worth seeks to correct what appears to be an overt disparity in the relative compensation pay for male and female work. In light of the disputes about the sexes' relative earnings and the disparate effects that create different pay for men and women, comparable worth is also considered to be the "cure-all" for remedying the historic and systemic job biases that have "ghettoized" the employed woman. In this researceh study, Chapter Two examined the workforce maladies of occupational sex segregation and wage discrimination. The origin of comparable worth was found to have been rooted in these two historical factors. Moreover, job sex segregation and

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457 pay discrimination were also regarded as having been deeply ingrained in yesterday's and today's cultural, economic, legal,.political, and social systems. The male sex dominated these systems and the structures that constituted their parts. The female sex did not. Generally, the woman was considered the weaker of the sexes. For this reason, mainly, females were relegated to an inferior social r6le, whose primary attribute was domest ic fty. ,+he percep.tions the man held about the woman in this regard not only affected the woman's familial role, but her occupational status as well. Such images further affected the woman's work status because her labor force worth was regarded by men to be significantly less than that attached the man's abilities and occupational contributions. To a large extent, myths and stereotypes which stemmed from the perceptions men had of the female sex also had a tremendous impact on the female, her labor force participation, and her earned wages, among other things. She had to become employed in the jobs that men had either abandoned or those which they chose not to work. In addition, the jobs women worked were typically representative of the poorest conditions and poorest pay. Working men had abandoned the poorly paid job positions for the higher-paying, more lucrative

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ones. Women were effectively barred from work classifications that had been traditionally set aside for males. 458 Women's continued entry into these formerly male-occupied jobs caused females to become sex segregated and discriminated against in their paid wages. Hence, the job fields became overcrowded. The consequence of female job overcrowding resulted in further depression of th,e wages employers paid women for their work. Even today, the ongoing entry of women in,to job classes heav ily-occupied by females appears to perpetuate both the devaluation and undercompensation of their work and wages. Apart from female job overcrowding, employed women and pay equity supporters say that the wages employers pay for women 's work are determined through the presumably free marketplace factors of labor supply and demand. Such determinations are also said to result in the undervaluation of female job classes and in the of women's wages. Economic wage determination theories hold that job wage and salary rates are set by the dynamics of labor demand and supply. In this respect, 'supposedly, the marketplace brings together labor buyers and labor sellers. Here, employers buy the labor commoaity and laborers, or

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459 individuals, sell it. The dynamics of labor supply and demand establish the wage price of work positions. When labor demand equals labor supply, as determined by the marketplace interaction of the two, the job price of the work posi tions. isreal i zed. Ideally, thi s determination represents the price at which labor is purchased by employers and sold by laborers. Today, comparable worth challenges the whole concept of establishing job wage and salary rates by marketplacedeterininations. Comparable worth proponents contend that such outcomes are reflective of institutionalized biases which perpetuate devaluation and depression of the employed female's work and wages. These systemic biases are further looked upon by working women and pay equity proponents as factors that penalize the employed woman because of her sex. In at tempt ing to overcome the soc ial st igma that affects the woman both as woman and worker, the employed woman chooses not to ameliorate this condition by entering into and working in male-dominated job classes or through occupational desegregation, but rather through the attainment of upward wage adjustments for her comparable worth, equal value job performance.

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460 The existing wage differential in employed males' and females' paid wages cannot be explained by a widespread, measurable variance in the sexes' relative average years of formal training or in their respective time spent in the workforce. Whether one looks at the employed woman's paid wages in either public or private sector employment, females earn lower relative pay than males. In determining the relative comparable worth value of predominantly m,ale and female jobs, an emerging body of job evaluation methodologies have found a significant number of male and female-occupied job positions to be of. equal worth to employers. Yet, the female sex's work and wages have been empirically proven to be undervaluated and undercompensated. Chapter Three reviewed the topic of job evaluation and comparable worth. It was found tha't no known methods exist by which the absolute worth of jobs can be determined, especially through the use of job evaluation and its techniques. Job evaluation is not a science. Rather, it is a process structured solely upon subjective judgments. These judgments become integral facets of the job evaluation process. Once information is collected about the jobs, the job positions are analyzed, position descriptions are written and, finally, the work positions are evaluated.

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461 During these activities, subjective criteria weigh heavily on the processes. It is essential that these criteria be applied in a fair and equitable way. When they are not, the inconsistent application of judgments during the job review and evaluation processes may create additional problems. For example, the application of subjective judgments may be both fair and neutral in form, but discriminatory in effect1 this can promote the ongoing effects of employment disparities and job-related biases. A basic precept of job evaluation is that it evaluates position, not the person. Despite this rudimentary principle, however, cultural biases can and do enter into the processes of analyzing, classi-fying., evaluating, and assigning wages to work positions. Job biases, whether racial or sexual in context, can and do enter into the processes, whether one utilizes the traditional job evaluation methods of classification, factor comparison, point method, ranking, or any other. In the final analysis, the impetus upon which the comparable worth wage determination doctrine is structured is intended to overhaul the use of historical job evaluation techniques because pay equity studies have shown them to incorporate discriminatory considerations into their appl ication methodolog ies. Chief among these

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462 considerations are both prejudices. with regard "to illicit cultural biases and their impact on the employed woman's status, by and large, they are responsible for the longstanding and ongoing undervaluation of the female sex's work and paid wages. Hence, the effect of both make for the working woman's present-day undercompensated status. Moreover, based on the utilization of the four historical job evaluation methods, comparable worth proponents hold that these traditional procedures help to promote female occupational sex segregation, sex-biased wage discrimination, and the furtherance of the undervaluation and undercompensation of their occupations and paid compensation. The deployment of neutral and virtually unbiased job evaluation procedures are viewed as the remedial measures that can eradicate the aforementioned employment disparities. Since society has culturally stereotyped women because of their gender, the jobs in which they find themselves employed are typically evaluated on job factors and attributes appl icabl.e to men's jobs. The combination of the two, that is society's stereotypes with respect to women and the evaluation of their jobs based on male-oriented job factors and characteristics, operates to devalue the

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463 worth and wages-of predominantly female work positions. The model law for comparable worth found in this study is adapted and derived from analysis of models and concepts put forth by many experts. The adoption of nondiscriminatory techniques for evaluating primarily female job classifications can serve to minimize or almost eliminate known cultural biases that have come to be associated with the perpetual existence of both sex and wage-employment discrimination. Job evaluation and its methods, applications, and results are usually afforded-close legal scrutiny when they become linked to sex-based wage discrimination claims litigated in the federal courts. Such scrutiny may_more appropriately pertain to Title VII-based sex and pay discrimination claims than those effected on equal pay considerations. In this regard, Chapter Four analyzed both the equal pay for equal work and the comparable worth questions within the legal frameworks of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. Both are national employment laws aimed at prohibiting certain facets of occupational sex and wage discrimination. The Equal Pay Act of 1963 represents Congress' mandate to equalize the wages of males and females employed in particular work situations. In these work instances, the job performance of males and females

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464 require equal skill, effort, responsibility, and must be performed under similar working condi tions. The Equ'al Pay Act contains four enumerated defenses upon which employers can legally justify unequal wage payments to the sexes, despite the fact that their job performance may be equal. During its deliberations over the equal pay bills, Congress clearly rejected the work of comparable character standard and adopted instead the requirement that "equal" jobs demonstrate substantial equality. As a result of the equal work standard's incorporation into the Equal Pay statute, a plaintiff who alleges a violation of the Act must lawfully prove that the contested jobs are at least substantially equal in skill, effort, responsibility, and working conditions. Short of proving this, unequal pay allegations cannot be legally sustained under the Act. In its contextual application, the Equal Pay Act's scope is narrow. Relative to the statute's legal definition of the equal work characterization, the term is defined with both conciseness and within precise confines. For these reasons, the Act's parameters have a circumscribed Title VII's scope, on the other hand, is Congress' measure for reaching 'a broader range of employment-based job violations. As examples of this, Title VII's provisions make it an unlawful employment

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465 practice for employers to discriminate against any individual with respect to his/her employment terms, conditions, job privileges, and paid compensation if such is based on the job incumbent's race, color, national origin, religion, or sex. Moreover, based on these same prohibitions, the Title VII law also makes illegal the limiting, segregating, or classifying of employees in any manner which deprive or tend to deprive them of equal employment opportunities, or otherwise adversely affect their job status. Title VII provides courts with the mechanism necessary to remedy employment proscriptions proven under the law. Such provisions even include a court of equity fashioning its own remedial measures to lawfully correct the proven Title VII violations. Title VII also contains a provision which presumably harmonizes its provisions with those of the Equal Pay Act. It is known as the Bennett Amendment. During the 1970s, legal controversy surrounded the Bennett Amendment in Title VII sex-based pay discrimination cases. Confusion prevailed throughout the federal judiciary as to whether the Bennett Amendment incorporated the EPA's strict requirement that jobs show substantial equality or whether it adopted its four affirmative defenses. In this regard,

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the u.s. Supreme Court afforded the dispute's latter posture legal deference. The High Court established federal legal policy. Title VII sex-based pay discrimination cases, be they brough't on grounds of race, color, national origin, or religion, did not require the plaintiff(s) to prove the contested jobs equal, as to be mandated by the Equal Pay Act's strict standard. 466 The chapter's discussion of the so-called "comparable worth cases revealed numerous things about their legal aspects, many based on the equal pay for equal work value issue's legal considerations as they interface with the Equal Pay Act and the Title VII civil rights law. FirSt, relative to the Equal:Pay Act, legal claims which allege sex and unequal compensation discrimination must prove equal work. Short of meeting this requirement, for the most part, these claims are not legally maintainable under the Title VII law. Hence, the strictness of the Equal Pay Act's equal work standard precludes the entertainment of job claims alleging lIcomparable work" or lIcomparable worth" sex and pay violations. Simply put, the two are not embraceable under the 1963 law. Comparable work is a term that describes job content work comparable in skill, effort, responsibility, and working conditions.

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467 For example, the job performance required of male and female guards encompasses comparable work job duties, tasks, and skills, among other things. On the other hand, the comparable worth work phrase characterizes job duties and tasks dissimilar in content skill, effort, responsibility, working conditions. Relative to both comparable work and comparable worth work situations, the jobs may be of equal worth value to the employer. An example of. the latter would be,' say, the job performances required of a nurse and that of a mid-level municipal administrator. The material presented in the chapter also supported that, from the manner with which Title VII sex-based pay discrimination matters have been handled and disposed of in the federal courts, the statute's broadness is not to be restricted by the Equal Pai Act's limited applications. The Supreme Court's ruling in the Gunther case made this perfectly clear. Another noteworthy point in the chapter was that not a single one of the acclaimed "comparable worth" cases was indeed a true equal work value legal matter. In-attaining this stature, the cases had to turn exclusively on the legal point of whether occupational sex segregation and sex-based wage discrimination are addressable under the Title VII employment statute.

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468 The Lemons v. City and County of Denver case comes closer to achieving this than all of the other so-called comparable worth cases thus far. Based on the three ways of proving employment discrimination under Title VII--disparate treatment, disparate impact, and intentional discrimination--Lemons plaintiffs argued that the City and County of Denver's separate job classifications were invidious, caused their disparate treatment, and. had a disparate impact on the ir status. Hence, employed nurses adjudged the work classifications to be violative of the 1964 Civil Rights employment law. At trial, plaintiffs argued that the municipality's distinct classification of the .nurses' job positions were illicit and offensive to Title VII's provisions. This is because the City and County of Denver operated a dual job classification system that permitted it to classify the nurses separately. The result of this separate classification was unequal pay between them and other male employees classified differently by the City. Though valiant, Lemons plaintiffs loss the case. Christensen v. Iowa was a legal concern altogether different from the Lemons case. In Christensen, the complaining parties. failed to prove that a prima facie case of sex discrimination existed. The suing parties

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469 in the IUE case proved intentional discrimination by the defendant, Westinghouse Electric Corporation. IUE plaintiffs legally substantiated in the lower federal district and appeals courts that the defendant-employer had engaged in willful acts of sex and wage discrimination. The Gunther v. County of Washington legal dispute clarified the interrelationship between the Equal Pay Act and Title VII. The ruling in Gunther did not establish legal precedence in relation to the Supreme Court embracing the comparable worth wage determination doctrine as a viable compensation administration practice. The Court acknowledged that Title VII was not to be limited by the Equal Pay Act's narrow contours. In other words" the Court made it clear that Title VII was to be allowed a wide degree of latitude in embracing employment discrimination allegations not reachable by the Equal Pay Act. Another important aspect the High Court recognized in Gunther was that in Title VII sex-based pay cases, plaintiffs do not run the risk of jeopardizing their legal contention should they fail to state in their lawful pleadings a violation of the equal work standard as required by the Equal Pay Act. In this respect, the Equal Pay Act "equal work" standard does not circumvent Title VII's ambit in the latter's ability to achieve

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470 its fully intended Congressional purpose. To a large extent, the Gunther ruling laid the foundation for the legal determination in the AFSCME v. State of Washington case. Whether undertaken by public, private or non-profi t employers, s'ubstanti ve comparable worth actions appear to work for the good of the whole process when they are voluntary. When the process collapses, lawsuits are instituted. The objective here is to achieve involuntary compliance through legal means to correct the purported ,sex-based pay disparities. The AFSCME v. State of Washington case is illustrative of what can happen when the orderly and systematic processes break down relative to the comparable worth concern and those involving sex-based pay employment discrimination. Moreover, the AFSCME legal matter exemplified both the difficulties and frustrations which confront pay equity advocates in attempting to persuade public and private employers to implement the comparable worth pay doctrine on a universal basis. It took nearly ten years for the AFSCME case to reach the point of court litigation. Voluntary efforts on the part of the State of Washington never really materialized. And, over the course of the decade that the State knew ab9ut its employment discrimination problems with the job

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471 classification systems, when the State eventually did something about the matter, their efforts in this regard were considered to be mere acts of "tokenism." The State did not prevail in the case because the lower federal district court was overwhelmingly satisfied that officials in Washington State knew that their dual job classification merit systems operated to devalue the pay of its female employees. However, the State of Washington did little or nothi ng but make sel f-serv i ng assertions about .i ts attempts to remedy the considerations. As a result of the State's "failure to pay" its female employees equitable compensation to correct the known pay disparities, the AFSCME trial judge deemed it appropriate to effect upon the State of Washington its own Title VII, court-imposed remedies. The court's remedies were both devastating and of a magnitude it regarded justifiable if the State's sex-based employment discrimination problems were to be corrected once and for all. On appeal to the U.S. Court of Appeals for the Ninth Circuit, the Washington State government was successful in getting the lower court's rul ing overturned. The former's action in thi s respec t fueled the comparable worth controversy. Despite this, however, it can be said that Ti.tle VII employment

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472 discrimination, substantiated on disparate treatment, disparate impact, or intentional grounds, is still factually and lawfully proven job discrimination. That is to say that, cloaked in whatever form, invidious employment discrimination is still invidious employment discrimination. Chapter Five examined the initiatives being undertaken by state and local governments to deal with the contemporary employment problems of the undervaluation and undercompensation of the employed woman's work and wages. Though slow to come, the comparable worth job theory of wage determination is an emerging trend. This is because an increasing number of state and local government employers are beginning to take the necessary remedial actions to correct the sex-based pay disparities in their employment job classification systems. The utility of the comparable worth concept as a workable compensation doctrine suffers from lack of exposure. The uncertainty of what it is and what it attempts to accomplish can be overcome through education. Educating public and private employers about what the pay idea attempts to do in this regard continues to provide it with the needed credibility and widespread attention the equitable compensation

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473 principle must acquire if comparable worth is to gain total acceptance among u.s. private and public employers. Despite what social inroads the comparable worth concept may attain, in the final result, it still seeks to correct the employmen.t maladies of female workforce sex segregation and wage discrimination. Its mode of accomplishing this is through the upward adjustment of the employed woman's earned compensation. The sex-based pay disparity stems from the historical devaluation of the working' 'woman's employment in predominantly female-occupied job classifications. Since the mid-1970s, the comparable worth concept has been elevated in prominence as a result of generated responsiveness on the part of both public and private employers. Dean et al., identified four surveyed job initiatives that some state and local polities are utilizing to combat the historic and systemic effects of female job sex segregation and pay discrimination. They are information and data collection, job evaluation studies, pay equity policy and implementation, and the enforcement of existing laws, regulations, and rules designed to eradicate almost all forms of impermissible employment discrimination.

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The Washington State comparable worth episode represents one more historical documentation of the widespread pervasiveness'of the undervaluation and undercompensation of the employed female's work and wages. -Sex continues to be among the controll ing standards of how society values the woman's occupa tional sta tus and her labor force worth' Gender-based prejudices are both historical and institutionalized. And, in the world of paid employment, the ir effects act to understa te the relative job worth contribution of employed females. 474 The sex-pased pay employment maladies which comparable worth seeks to rectify provide their own respective commentary on' where past society has been' and how much farther present society go. What can be concluded about comparable worth as it coexists with the contemporary aspects of a changing society? First, the equal pay for comparable worth idea is helping to change the social employment features of how yesteryear's society valued. the female sex and her employment worth. It is doing this by identifying and correcting past and pre;se. n,.t bastions of sex-based employment disparities in predominantly male and female jobs alike. It seems that the continual denial of equal employment opportunities and equitable

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pay to the. employed woman for comparable worth. val ue job performance has come full circle. Each is no longer tolerable. 475 The protracted, deeply ingrained social biases effected upon the female sex have unquestionably affected society in general, and the female sex in particular. In general, today's' woman has been relegated t.o a substantially lower social status than that of men. The prevailing notion that women are unequal to men and therefore worth less is just that, a prevalent but unsubstantiated notion. Moreover, such an unfounded impression is endemic of its parasitic malai se. Be that as it may, the trial judge in the AFSCME case stated it succinctlywhen"he said that the time to cure these and other similar-societal problems is "now." Sexual and the deliverance of the female's equal rights under u.S. law is long overdue. Each beckons for -its own autonomous existence. Likewise, the notion of fundamental fairness mandates that employede-emales not only be afforded equality in employment opportunity, but also be paid comparable worth val ue wages for the ir equa-l job performance contributions to employers.

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BIBLIOGRAPHY Aldrich, Mark and Buchele, Robert. The Economics of Comparable Worth. Cambridge, Mass.: Ballinger Publishing Co., 1986. Allport, Karen. IIEqual Pay for Comparable Work? Should Housepainters Make More Than Nurses?1I Across the Board, 17 (October 1980): pp. 22-25. American Federation of State, County, and Municipal Employees et al., v. State of Washington et al., 32 FEP Cases 1577 (W. D. Wash. 1983). American Federation of State, County and Municipal Employees et el., v. State of Washington, et al., Nos. 84-:3569, 84-3590 (.9th Cir. 1985). Angelo v. Bacharach, 555 F.2d 1164 (3rd Cir. 1977). Baer, Judith A. The Chains of Protection: The JUdicial Response to Women s Labor Legislation. Westport, Conn.: Greenwood Press, 1978. Barrett, N. S. IIWomen in the Job Market: Occupations, Earn ings, and Career Opportuni ties, II in R. Smith (ed.), The Subtle Revolution: Women at Work. Washington D. C.: The Urban Inst i tute, 1979. Belcher, David W. Compensation Administration. Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1974. Bel1ace, Jan ice R. "Fore ig n Exper ience wi th Comparable Worth,1I in E. R. Livernash (ed.), Comparable Worth: Issues and Alternatives. Washington, D.C., Equal Employment Advisory Council, 1980. Benge, Eugene J. Manual of Job Eval ua tion. N. Y. : Harper & Brothersj 1941. Berg, J. Gary. Managing Compensation. N.Y.: Amacom, 1976.

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Bergman, Barbara R. "The Effect on White Incomes of Discrimination in Employment." Journal of Politic.al Economy, 79 (March/April 1971): 294-313. Bernard, Jessie. "Historical and Structural Barriers to Occupational Desegregation," in M. Blaxall and B. B. Reagan (eds.), Women and the Workplace: The Implications of Occupational Segregation. Chicago: The University of Chicago Press, 1976. Blau, Francine. Equal Pay in the Office. Lexington, Mass.: Lexington Books, 1977. and Hendricks, Wallace E. "Occupational Segregation by Sex: Trends and Prospects." Journal of Human Resources, 14 (Spring 1979): 197-210. Blau, Peter M. Exchange and Power in Social Life. N.Y.: J. Wiley & Sons, 1974. 477 Blaxall, Martha and Reagan, Barbara B., eds. Women and the Workplace: The Implications of Occupational Segregation. Chicago: The University of Chicago Press, 1976. Blurnrosen, Alfred. Duke Power Employment Rev iew 71 "Strangers in Paradise: Griggs v. Company and the Concept of Discrimination." Michigan Law (November 1972): 59-110. Blurnrosen, Ruth G. "Wage Discrimination, Job Segregation and Women Workers." Employees Relations Law Journal, 6 (Summer 1980): 77-136. "Wage Discrimination, Job Segregation and Ti tIe VI I of the Ci v il Rights Act of 1964." University of Michigan Journal of Law Reform, 12 (Spring 1979): 399-502. Boulding, Elsie. "Familial Constraints on Women's Work Roles," in M. Blaxall and B. B. Reagan (eds.), Women and the Workplace: The Implications of Occupational Segregation. Chicago: The University of Chicago Press, 1976.

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Brinks, Brown, J. T. "THe Comparable Worth Issue: A Salary Administrdtion Bombshell," Personnel Administrator, 26 (November 1981): 37-40. H. Phelps. The Inequality of Pay. Berkeley, Ca.: University of California Press, 1972. Brown v. Board of iTopeka, 349 U.s. 294, 75 S.Ct. 753 (1955). : 478 Buckley, J. E. Differences Between Men and Women in the Sarrle Job." Monthly Labor Review, 94 (1971): 36;-39. Buford, J. A. and :Morris, D. K. "A Salary Equalization Mode.!: Identifying and Correcting Sex-Based Employee Relations Law Journal, 6 (Winter '1980-81): 406-421.: Bureau of Na tional:. Affa irs. Issue." Washington, Affairs, ]981. "The Comparable Worth D.C.: Bureau of National "Equal :pay for Equal Work: Summary Analysis, Legislative History and Text of the Federal Equal Pay :Act of 1963, with Summaries of Applicable: State Laws." Washington D.C.: Bureau of:Na tional Affi:lirs, 1976. "Equal !Payfor Equal Work." 3 BNA (1963). Carter, Michael F.: "Comparable Worth: An Idea Whose Time Has qome." p'ersonnel Journal. 60 (October 792-794. Cassedy, Ellen. ";Job Segregation and Wage Di scrimina:tion in the Clerical Workforce," in J. A. (ed.), Manual on Pay Equity. D.C.: Conference Publications, 1980. Ce1arier, "Money: The Paycheck of the Job Worth." Ms. (March 1981): 38.' Chandler, Melinda iP Comments. "Equal Pay for Comparable' Work Value: The Failure of Title VII and the Equal Pay Ac t." Northwestern Universi ty1 Law Review. vol. 1, no. 75 (1980):: 914-943.

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479 Chertos, C. H. Occupational Segregati6n and Its Impact on Working Women: A Conference Report. Albany, N.Y.: State University of New York at Albany, Center for Women in Government, 1982. Christensen v. Iowa, 536 F.2d 353 (8th Cir. 1977). Committee on Education and Labor. U.s. House of Representatives. Hearings for the Subcommittee of Labor on the House Committee on Education and Labor, Part I, Eighty-Seventh Congress, Second Session. Washington, D.C.: Government Printing Office, 1962. Hearings for the Subcommittee of Labor on the House Committee on Education and Labor, Part II, Eighty-Eighth Congress, First Session. washington, D.C.: Government Printing Office, 1963. Committee on Government Operations. U.S. House of Representatives. "Pay Equi ty: EEOC Handl i ng of Sex-Based Wage Discrimination Complaints." House Report 98-796. Washington, D.C.: Government Printing Office, 1984. Committee on Post Office and Civil Service. U. S. House of Representatives. Pay Equity: Equal Pay for Work of Comparable Value, Joint Hearings before the Subcommittee on Human Resources, Civil Service Compensation, and Employee Benefits, Ninety-Seventh Congress, Second Session. Washington, D.C.: Government Printing Office, 1983. Creamer, Day. "Organizing Strategies: Closing the Wage Gap Between Men and Women," in J. A. Grune (ed. ); Manual on Pay Egui ty. Washi ngton, D. C. : Conference Publications, 1980. Corning Glass v. Brennan, 417 U.S. 188 (1974). Dean, Virginia. Whose Working for Working Women: A Survey of State and Local Government Pay Equity Initiatives. Washington, D.C.: Comparable Worth Project, National' Committee on Pay Equity, and National Women's Political Caucus, 1984.

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480 Di Salvo v. Chamber of Commerce of Greater Kansas City, 416 F.Supp. (W.D. Mo. 1976). Doherty, Mary Helen and Harr iman, Ann. "Comparable Worth: The Equal Employment Issue of the 1980s." Rev iew of Publ ic Personnel Administration, vol. 1, no. 3, (Summer 1981): 11-31. Duncan, Greg J., with Richard D. Coe, Years of Poverty, Years of Plenty: The Changing Economic Fortunes of American Workers and Families. Ann Arbor, Mich.: University of Michigan Press, 1984. Elisburg, Daniel. "Equal Pay in the United States: The Development and Implementation of the Equal Pay Act of 1963." 29 Labor Law Journal (1978): 195-208. Ellig, Bruce R. "To Every Job a Pay Slot." Supervisory Management, 25 (December 1980): 24-31. Emmert, Mark A. and Lewis, Gregory B. "Pay Equity and Politics." Review of Personnel Administration, vol. 5, no. 3 (Summer 1985): 50-64. Featherman, David L. and Hauser, Robert H. "Sexual Inequalities and Socioeconomic Achievement in the U.S." American Sociological Review, XLI (June 1976): 462-483. Ferber, Marianne A. and Lowry, Helen M. "The Sex Differential in Earnings: A Reappraisal." and Labor Relations Review. 29 (April 1976): 377-387. Fogel, Walter. The Equal Pay Act: Implications for Comparable Worth. N.Y.: Praeger Publishers, 1984. and Lewin, David. "Wage Determination in the Public Sector." Industrial and Labor Relations Review, 27 (April 1974):410-431. Friss, Lois. "Equal Pay for Comparable Work: St imul us for Civil Service Reform." Review of Public Personnel Administration. vol. 2, no. 3., (Summer 1982): 37-48.

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