1

NATIONAL NEWS

By Loretta Feller

Wage Discrimination Clarified

In one of a flurry of decisions regarding the status of women, the U.S. Supreme Court ruled this June in County of Washington v. Gunther that women who are paid less than men may sue their employers for wage discrimination, whether or not the jobs performed by the two sexes are identical.

Four women employed as guards (matrons) in the women's section of a county jail in Oregon filed suit under Title VII of the Civil Rights Act of 1964, as amended, for back pay and other relief, alleging that they had been paid lower wages than men who guarded the men's section of the jail. The county had

previously conducted its own survey of outside markets and the worth of jobs in which it determined that the women should be paid 95 percent as much as the male officers. Subsequently, the county paid the women only about 70 percent as much while paying the men the full evaluated worth of their jobs (about $200 a month more than the women).

When the case was first heard, the District Court found that the male guards supervised more prisoners per guard than did the women, and that the women devoted much more of their time to "less valuable clerical duties". It held, therefore, that the jobs were not entitled to equal pay. In its decision, the lower court held, based on a somewhat ambigu-

San Jose: A Historic Change

While the victory for the four women guards in County of Washington v. Gunther may `ultimately benefit many women, the case nevertheless took 7/2 years to litigate. Within the month after the Supreme Court decision, less patient municipal workers in San Jose, California, most of whom are women, walked off their jobs in the first strike in history aimed at getting women the same pay as men for comparable work. The city workers are now back on their jobs, after hammering out a precedent-setting contract.

The city, which has been termed by its mayor, Janet Gray Hayes, as the "feminist capital of the world," last year commissioned an unusual study on pay equality among its workers. That study found that some female city employees earned as little as 53 percent of what males earned in city jobs judged comparable in problem-solving, know-how and accountability. The mayor's own secretary, for example, earned a mere $1,048 monthly, while a male airconditioning technician, with a job judged comparable to the secretary's, pulled down 47 percent

more.

•

""

After a nine-day strike during which demonstrators picketed City Hall bearing signs reading, "My Net Pay is Gross" and "Raises, Not Roses,' the city agreed to a new pay package which allots nearly $1.5 million to narrow the pay gap between men's and women's salaries in comparable jobs over a two-year period. Mayor Hayes termed the settlement "a very proud moment for me as the mayor and

The Unkindest Cut

(HerSay)-Two researchers with the government's Center for Disease Control in Atlanta are charging that obstetricians are performing a type of vaginal surgery on women in labor far too frequently. The procedure, called an episiotomy, enlarges the vagina through an incision, which is made to allow the baby's passage through the birth canal more easily. Doctors say the procedure is necessary to prevent "tearing" of the vaginal wall.

J

However, Drs. Stephen Thacker and H. David Banta say routine episiotomies are not necessary. They cite statistics which show only a 19 to 39 percent episiotomy rate in birthing centers where midwives deliver babies, as compared to an episiotomy rate of 50 to 90 percent in most hospitals where obstetricians deliver the infants.

The researchers say that "arguments for the widespread use of episiotomy do not withstand scientific scrutiny". They admit that in some cases the procedure may be necessary, when the baby is too large or when labor lasts too long. However, Thacker and Banta say the practice is another example of "techniques that provide benefits for particular groups of people being used for wider and wider indications until people who do not require treatment at all are being, given it”.

Page 4/What She Wants/July-August, 1981

For Sa

for me personally as a woman...We have taken a historic step in the workplace for women". Union leaders say they will seek to eliminate the rest of the

I have done a great deal of work, as much as a man, but did not get so much pay We do as much, We eat as much, we want as much. -Sojourner Truth

1053

peg aroul/ UREDITEN KERS GERVICE

pay differential when they renegotiate their contract with the city two years from now.

Rita Boyle, director of the San Francisco-based Women Organized for Employment, a non-union working women's organization, says the San Jose settlement means that non-union clerical workers who earn less than male workers "are really going to have to consider unionizing as the best way to raise the issue" of comparable worth.

ous section of Title VII [Sec. 703(h)] known as the Bennett Amendment, that, unlike wage discrimination cases using other bases (race, national origin, religion), a sex-based wage discrimination claim cannot be brought under Title VII unless it could satisfy the equal work standard of the Equal Pay Act. The Equal Pay Act has a more stringent standard than Title VII, and only prohibits sex-based wage discrimination where the jobs performed by women are equal in skill, effort, and responsibility to those performed by men.

Writing for the majority in the Supreme Court decision, Justice Brennan decided that the failure of the county to pay the women the full evaluated worth of their jobs can be proved to be intentional sex discrimination. The Bennett Amendment, the Court decided, simply referred to the defenses an employer can raise to justify wage differentials (i.e., seniority, merit, quantity and quality of production, or any factor other than sex), not to the equal work standard itself. Otherwise, if the equal work standard were applied, Justice Brennan noted, "a woman who is discriminatorily underpaid could obtain no relief-no matter how egregious the discrimination might be unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress...."

"Congress," he concluded, "surely did not intend the Bennett Amendment to insulate such blatantly discriminatory practices from judicial redress under Title VII."

The jail matrons, as Justice Brennan carefully pointed out, did not bring their suit as a comparable worth case under which they might claim increased wages on the basis of comparison of the intrinsic worth or difficulty of their job with that of other jobs traditionally held by men. Rather, they alleged their wages were intentionally reduced because of their sex when the county enacted the results of their own job survey for the men who were guards but not for the women who were guards.

Under the comparable worth theory, wages in certain occupations such as nurses or secretaries are depressed because they are perceived as "women's work". Although the decision did not address the comparable worth theory, had the Court found against the women in the interpretation of the Bennett Amendment, the door would certainly have been shut for any future consideration of comparable worth under present civil rights law.

Big Business Fears Aid Women

(HerSay) The Reagan Administration received a jolt recently, this time, oddly enough, from big business interests in the U.S. who apparently oppose the administration's plans to cut back on enforcement of fair hiring practices for women and minorities.

Federal regulations require contractors who do business with the U.S. government to maintain affirmative action programs to assure that women and minorities are fairly included among the businesses' employees. The Reagan draft plan, which was to have been published in early July, called for a loosening of the affirmative action rules binding over 12,000 of the smaller contractors who now do *business with the government. The administration, however, backed off after being blasted by the Business Roundtable, a group which represents the views of large employers. The Wall Street Journal

4

quotes a Reagan Administration official as stating, "Nobody anticipated the big-business group would complain that they were being sold out".

Dr. Lawrence Shoup, a political analyst and author, believes that big business objections to loosening affirmative action requirements are not totally soft-hearted. Shoup says the business interests are worried that the little firms, which would be affected by the proposed changes, would gain a competitive edge over the larger businesses, which still must keep their affirmative action programs in place. Big business also opposes the gutting of affirmative action programs, Shoup says, out of a fear that "the women's movement might become a revolutionary force". Shoup, who has written a book about the Carter Administration, says that large corporations are willing to keep advancement programs for women in order to prevent disgruntled women from getting together and "becoming radicalized".