Breakthrough in the Wage War

The Supreme Court opens the door to more pay suits by women

They may have come a long way, baby, but in the job market women still get only 60-c- for every dollar received by men.

Legal efforts to narrow the gap have frequently run up against a high hurdle: females could sue their employers only according to the standard of "equal pay for equal work"--i.e., when their boss paid more to men performing the same basic job. Last week the Supreme Court removed that obstacle by ruling 5 to 4 that a woman could also file suit for equivalent pay if her job was merely similar to one held by a man and there was intentional discrimination. The upshot of the decision, predicted Douglas McDowell, a lawyer for the pro-business Equal Employment Advisory Council: "It's going to invite an awful lot of litigation."

The dispute that came before the court originated in Washington County, Ore., where women prison guards, called "matrons," received 30%--or about $200 a month--less than their male counterparts, who were called "deputy sheriffs."

The females, who worked in a women's jail, guarded fewer inmates but had extra clerical duties. Relying on Title VII of the Civil Rights Act of 1964, a broad measure outlawing sex discrimination in the work place, the women sued. County officials maintained, however, that an amendment to Title VII offered by former Republican Senator Wallace Bennett of Utah incorporated a full set of restrictions contained in the Equal Pay Act of 1963. Under that law, suits are permissible only when both sexes perform "equal work."

It was up to the court to try to read Congress's mind in retrospect. Writing for the majority, Justice William Brennan agreed that "Title VII's prohibition of discriminatory employment practices was intended to be broadly inclusive." Surely, he argued, Congress did not intend to block suits such as this one, where the county's own job survey had concluded that the women's jobs should provide wages equal to 95% of the men's. Countered dissenting Justice William Rehnquist: "The court conveniently and persistently ignores relevant legislative history and instead relies wholly on what it believes Congress should have enacted." Rehnquist cited a 1965 interpretation by Senator Bennett to the effect that a disparity in wages could be considered discriminatory under Title VII only if it also violated the Equal Pay Act.

The court's ruling gave no indication of whether the guards' suit, or others like it, would succeed. Nor did it suggest any new standard to which employers might be held. "It just opens the door," said Norman Chachkin of the Lawyers' Committee for Civil Rights Under Law. "But a decision going the other way would have shut the door with a pretty big clang."

The court specifically declined to authorize suits based on the "comparable worth" theory. This theory, which is gaining acceptance among some women's rights groups and labor organizations, holds that females in traditional women's jobs (secretaries, grade-school teachers) should be paid as much as men are in traditionally male jobs (accountants, construction workers) when the two kinds of work are deemed to require comparable skill, effort and responsibility. Three-quarters of working women occupy positions that are at least 75% female. The comparable-worth argument has made little headway in courts. Last year a group of Denver nurses lost a federal suit in which they claimed that it was unfair to pay them less than the city's tree trimmers and sign painters.

For Alberta Gunther, one of the four guards who brought the case decided last week, the victory was a qualified one. Seven years after first going to court, Gunther now knows only that she is entitled to sue. Next she and her colleagues must prove at trial that the county's wage scale was in fact intentionally discriminatory.

"We thought it was a simple case," she said. "We expected to win and be over with it." Even if they ultimately win, the benefits will be solely retroactive: in 1974 their jobs were wiped out when Washington County closed down the facility where they were working and sent the inmates to a nearby county.

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