'Comparable Worth' Tested in Major Pay-Equity Suit
In what experts are calling the most significant court test to date of the concept of "comparable worth," a federal district judge ruled this month that the state of Washington was guilty of wage discrimination in paying women employees less than men performing similar kinds of work.
The decision, which the state plans to appeal, is likely, the experts say, to increase the use of the comparable-worth concept in job-evaluation schemes of private and public employers--including public-school systems--nationwide. Its importance, they say, lies in the fact that it goes beyond the notion of "equal pay for equal work" to require more subtle evaluations comparing the pay rates for similar, rather than exactly the same, kinds of jobs.
"You're not looking for sex discrimination within a job category, you're looking for sex discrimination between and among job categories,'' said Barbara Stein, a specialist in human and civil rights for the National Education Association (nea).
Impact Could Be Dramatic
The impact of applying that concept in education could be dramatic. In public schools, 90 percent of support-staff employees, including clerical and maintenance workers, are women, and approximately 27.5 percent of administrative staffs are women, according to figures from the American Federation of State and Municipal Employees (afscme) and the National Center for Education Statistics. Comparable figures for employees of private schools are not available, spokesmen for the Council for American Private Education and the National Association of Independent Schools said.
The Washington State case, which involves approximately 14,000 state employees, represents the first time a comparable-worth case involving that many workers has reached the federal courts. It was brought under Title VII of the Civil Rights Act of 1964 by the Washington Federation of State Employees and the American Federation of State, County, and Municipal Employees (afscme) Council 28 of afl-cio on behalf of many of the state's female employees who work in jobs dominated by women and of some male employees who also work in those jobs.
In his ruling on Sept. 16, Judge Jack E. Tanner set Nov. 14 as the date on which he will announce how much compensation the state should pay those workers. afscme is seeking four to five years' worth of back pay--about $500 million, according to George Masten, the federation's executive director. Winn Newman, who argued the case for afscme, estimates the state's compensation costs to be closer to $1 billion.
In their defense, state lawyers argued that Washington's wage scales reflect those in private industry. "All the [state's comparable-worth] studies have done is show that there is a difference [in salaries of male-dominated and female-dominated jobs]," said Richard Heath, the assistant attorney general who represented the state. "No studies were ever done to show what the difference is caused by."
But Judge Tanner rejected the state's contention, saying that "the evidence is overwhelming [that] there has been past historical discrimination in employment of women in the State of Washington and direct, overt, and institutionalized discrimination" in wages.
The case, Washington Federation of State Employees--afl-cio--American Federation of State, County, and Municipal Employees v. Washington State, will now go to the U.S. Court of Appeals for the Ninth Circuit and could reach the U.S. Supreme Court.
'Very Far-Reaching Effects'
"I think [the case will have] a fairly wide application" with "very far-reaching effects on schools and all employers," said Edith Barnett, a Washington, D.C., lawyer who worked on three Equal Pay Act cases at the Labor Department and served as an associate general counsel for afscme in 1981 and 1982.
"It breaks the back of the wage-discrimination issue," commented Mr. Newman, the plaintiffs' lawyer. "The same facts exist throughout the country with virtually every employer. It's the major decision in terms of what [wage discrimination] means to women."
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Washington State Pay-Equity Suit Tests 'Comparable Worth' Idea
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cropping up in the public sector," said Neil Reichenberg, director of governmental affairs for the International Management Association.
"You'll probably see many more of these [comparable-worth cases] coming about," suggested Richard G. Womack, staff representative of the afl-cio civil-rights department. "It represents a trend. There is a move afoot now to say that ... if the jobs are similar or require the same skills, then the pay should be the same," he said.
But Daniel Leach, a Washington, D.C., lawyer familiar with pay-equity issues, said he thinks the subject is too complex to be resolved easily. Mr. Leach, who is past vice chairman of the U.S. Equal Employment Opportunity Commission (eeoc) and a member of the Washington Study Group, which monitors legal issues, including pay equity, said that although he thinks it is "a hot political issue" that "the President should have on his gender-gap agenda," until the Congress "really addresses this issue, it'll be piecemeal, case by case."
Larry Goodman, an afscme spokesman, said the union, which represents 1.1 million men and women, plans to pursue a case-by-case strategy across the country. "The existence of this [wage-discrimination] condition is not unique to the state of Washington," he said. "It's all over the country, both private and public."
Included in the union's strategy will be action on seven charges pending before the eeoc, including a pay-equity suit against the state of Connecticut, according to Catherine O'Reilly Collette, assistant director for women's activities.
The union officials said they will also continue to monitor the situation in the Reading, Pa., school system, where 60 female nonacademic employees last month filed wage-discrimination charges against the district. (See Education Week, Sept. 7, 1983.)
"We're hoping that the impact of this decision will be fairly broad and will assist us in obtaining fair settlements in some of the other cases," Ms. Collette said.
The issues of comparable worth and pay equity are relatively new, according to experts who have been following their development in recent years. According to Mr. Leach, pay equity was not an issue when he worked at the eeoc in 1980. "We were in the process of defining comparable worth," he explained, adding that employers and courts are still defining it now.
"Dissimilar jobs may not be identical, but may [comprise] tasks and characteristics that are equivalent or comparable," said Nancy D. Perlman, chairman of a national pay-equity organization, in Congressional testimony last year. "The comparable-worth issue emphasizes the need to design job-evaluation systems that are free from sex bias; systems ... that will pay the orange and apple equally for giving us the same amount of energy; systems which do not pay the orange less than the apple simply because it is not red."
According to a recent survey by Ms. Perlman's organization, the National Committee for Pay Equity (ncpe), a total of 85 state, local, and school-district surveys of comparable worth in 26 states have been conducted in the last few years. As part of such studies, the employers conducted job evaluations of support and administrative personnel in which they assigned points to job responsibilities and ranked positions by salary.
The studies, according to an ncpe report, "uncovered a consistent pattern of undervaluation of 'women's' work in every workplace examined."
School systems' evaluation practices vary, but most periodically review job classifications and pay scales, educators say.
In the Chicago public schools, for example, a position-evaluation committee conducts ongoing assessments of administrative staff members based on changes in the responsibilities of their positions, according to Thomas Finnegan, salary administrator for the school board.
In addition, an across-the-board evaluation of administrative employees has been conducted twice in the last 10 years in which each job was studied based on the employee's accountability, knowledge and skills, supervision abilities, and relationships with others.
The results of these evaluations are used to rate the performance of current employees and, in some cases, to change salary schedules for particular jobs, according to Mr. Finnegan.
The Tucson Unified School District is waiting for the results of a job-evaluation study that assessed administrative and support personnel, according to Jean Hammerstein, a district spokesman. The study was conducted, she said, because there had been some appeals to the personnel-adjustment board by individuals who thought their salaries should be upgraded.
At least one school district is considering the idea of conducting stud-ies aimed specifically at uncovering pay inequities and compensating women who have traditionally been on the low end of the salary scale.
Last month in Los Angeles, the school board voted to allocate $30,000 to look at various plans for conducting a study of the equity of salaries paid to the district's employees, 70 percent of whom are women. (See Education Week, Sept. 7, 1983.)
And earlier this month, saying that equal pay for comparable work was his goal for state employees, Gov. Richard F. Celeste of Ohio announced that he would appoint a citizen's committee to conduct a pay-equity study of the state's 56,000 employees and of all the employees of state-supported universities, according to a spokesman in the Governor's office. The Governor said the study will determine the effect and extent of sex-role stereotyping on state job categories.
Equalizing State Pay Scales
In a study carried out to determine the expense that would be involved in equalizing state pay scales in Minnesota, the state's Council on the Economic Status of Women found that the increases would amount to 2 to 4 percent of the total amount budgeted for state salaries.
Some school districts that have faced the prospect of costly litigation on pay-equity questions have chosen to settle out of court, according to Mr. Leach, and the issue has ended up in the collective-bargaining arena.
And in other cases, both collective-bargaining negotiations and litigation result from charges of wage discrimination. In the South Kingstown School Department in Wakefield, R.I., for example, striking clerks and aides who had charged the district with wage discrimination this month signed a three-year contract.
The 74 clerks and aides, all of whom are women represented by the National Education Association-Rhode Island, accepted a 7-percent pay increase instead of the 8 percent they were seeking, but also chose to carry through with the sex-discrimination suit against the district, according to Superintendent Bennett H. Plotkin.
The employees, according to spokesmen at nea-Rhode Island, accepted the contract because they did not want to further delay the schools' opening. Because teachers honored the strike and did not report to work either, schools were closed for three days.
It is not clear, those familiar with the comparable-worth concept say, how or whether it can be applied to teachers, as opposed to administrative and support-staff employees.
It is easier to show, said Ms. Stein of the nea, that salary inequities among support personnel are part of the district's pay system. But with regard to teachers' salaries, she noted, "in most school districts, it's more likely or possible that the sex discrimination is taking place vis a vis the rest of society."
"The Los Angeles district study could be very valuable because it is such a large district," Ms. Stein suggested, adding that if the study is thorough and includes teachers and others whose jobs require the same kinds of educational requirements and work demands, "it may reveal a pattern that is applicable throughout the country."
Teachers' salaries are not evaluated in the same way as those of support personnel because everyone assumes "they're all on the same level, they're all teaching," according to Paula O'Connor, assistant director, office of the secretary-treasurer of the American Federation of Teachers (aft).
Ms. O'Connor said that although the aft has been involved in some minor cases involving pay equity, the cases have not been sex-based.