Anthony Kennedy

“ It is insufficient for a plaintiff alleging discrimination under the disparate treatment theory to show the employer was merely aware of the adverse consequences the policy would have on a protected group. ”

“ We must determine whether comparable worth, as presented in this case, affords AFSCME a basis for recovery under Title VII.
Section 703 (a) of Title VII states in pertinent part:
It shall be an unlawful employment practice for an employer -- (1) . . . to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's . . . sex . . . or (2) to limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . ”

“ AFSCME contends discriminatory motive may be inferred from the Willis study, which finds the State's practice of setting salaries in reliance on market rates creates a sex-based wage disparity for jobs deemed of comparable worth. AFSCME argues from the study that the market reflects a historical pattern of lower wages to employees in positions staffed predominantly by women; and it contends the State of Washington perpetuates that disparity, in violation of Title VII, by using market rates in the compensation system. ”

“ 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 paid less than employees in job classifications filled primarily by men, if the jobs are of equal value to the employer, though otherwise dissimilar. ”

“ We recognized in Spaulding that employers may be constrained by market forces to set salaries under prevailing wage rates for different job classifications, 740 F.2d at 708. 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. ”

“ The instant case does not involve an employment practice that yields to disparate impact analysis. As we noted in an earlier case, the decision to base compensation on the competitive market, rather than on a theory of comparable worth, involves the assessment of a number of complex factors not easily ascertainable, an assessment too multifaceted to be appropriate for disparate impact analysis. ”

“ It is evident from the legislative history of the Equal Pay Act that Congress, after explicit consideration, rejected proposals that would have prohibited lower wages for comparable work, as contrasted with equal work. ”

“ See Lemons, 620 F.2d at 229 (this type of wage disparity, generated by market forces, was not sought to be remedied by the Civil Rights Act and is not within the scope of the Equal Protection Clause) ; Christensen, 563 F.2d at 355-56 (same) ; Briggs v. Madison, 536 F. Supp. 435, 447 (W.D. Wis. 1982) (same) . Title VII was enacted to ensure equal opportunity in employment to covered individuals, McDonnell Douglas, 411 U.S. at 800; Christensen, 563 F.2d at 356, and the State of Washington is not charged here with barring access to particular job classifications on the basis of sex. ”