Academic journal article Public Personnel Management

Employer "Business" and "Job" Defenses in Civil Rights Actions

Academic journal article Public Personnel Management

Employer "Business" and "Job" Defenses in Civil Rights Actions

Article excerpt

Equal Pay Act

The Equal Pay Act (EPA) was the first piece of modern civil rights legislation and was very narrowly conceived--it dealt only with sex-based compensation discrimination. EPA plaintiffs must simply prove in their prima facie cases that they are paid different wages than are paid to employees of the opposite sex, while performing work on jobs requiring equal skill, effort and responsibility under similar working conditions, Corning Glass Works v. Brennan, 417 U.S. 194 (1974). If such a case is proven, the burden of proof shifts to the employer.

The most general and widely used of the Act's four affirmative employer defenses is the factor-other-than-sex (FOS) defense. This defense, while representing a broad "catch-all" defense including many different factors does not per se have anything to do with "business" or "job." The courts, however, have required employers to meet such standards as "business-related reasons," "legitimate organizational needs," "legitimate business reasons" and the like.

Earlier Court Decisions

Early Supreme Court EPA decisions did not require any "business" or "job" related reasons for FOS defenses. Rather, they simply demanded that "job classification programs," Corning Glass Works v. Brennan, 417 U.S. 188, 201 (1974) or somewhat more broadly, "job evaluation systems," County of Washington, Oregon v. Gunther, 452 U.S. 161, 171 (1981), be "bona fide." Bona fide, taking a very legal and technical definition, means: "In or with good faith; honestly, openly, and sincerely, without deceit or fraud."[2] This standard stipulates nothing about requisite job relatedness or meeting legitimate organizational needs, and hence is a fairly weak requisite to be imposed on the employer.

Further compounding the problem has been the fact that some of the circuit courts have imposed a more rigorous business defense on the FOS than others. This situation has given rise to the potential that should a circuit court suddenly present a strong business defense case, the employer would appeal to the Supreme Court and ask for a reversal. This potential became a reality in 1992 with Aldrich v. Randolph Central School District, 963 F. 2d 520 (2nd Cir. 1992).

The Aldrich Antecedents

To understand Aldrich and its implications, the earlier circuit positions must be examined. Such an examination will: (1) reveal various different FOS; (2) show different varieties in the use and meaning of the words "business" and "job"; and (3) demonstrate how diverging the circuits have been with respect to demanding high business or job related standards for FOS defenses.

Seven pre-Aldrich circuit decisions relevant to this issue are depicted in Figure 1. In Strecker v. Grand Forks, 640 F. 2d 96 (8th Cir. 1980) the defendants sustained their EPA burden of proof by utilizing the state's personnel classification system as a legitimate FOS and were not required to present a business or job related reason for the use of that factor. In his strongly worded dissent Judge Heaney argued that it had to be proved that the "classification system's requirements were reasonably related to the jobs to be performed," Strecker, 640 F. 2d 96, 104 (8th Cir. 1980). Further Heaney used the term "manifest relationship," a Title VII (not EPA) term from Griggs, a case to be discussed later.

Two years after Strecker, in Kouba v. Allstate Insurance Co., 691 F. 2d 873 (9th Cir. 1982), the insurance company was permitted to use prior salary to determine the wages of its sales agents. This FOS defense was held valid in spite of the circuit's postulation of a rigorous business defense. It would be nonsensical, said the court, "to sanction the use of a factor that rests on some consideration unrelated to business," 629 F. 2d 873, 876. Thus, unlike the Strecker Court, the Kouba Court postulated a business reason as a requisite, while holding that the employer had met that test.

In Anderson v. …

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