Appeals from the United States District Court for the Southern District of Illinois, Alton Division, No. 83 C 5231, William L. Beatty, Judge.
Before POSNER and FLAUM, Circuit Judges, and GRANT, Senior District Judge.*fn*
The Equal Employment Opportunity Commission brought this suit against the school district of Madison, Illinois, charging that the district was paying female athletic coaches in its high school and junior high school less than male coaches, in violation of the Equal Pay Act of 1963. That Act, so far as relevant to this case, forbids an employer to
discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to . . . (iv) a differential based on any other factor other than sex.
29 U.S.C. § 206(d)(1). Carol Cole and Luvenia Long, two of the four women who are the alleged victims of the discrimination, intervened in the EEOC's suit and added counts under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (employment discrimination), and section 1 of the Civil Rights Act of 1871, now 42 U.S.C. § 1983 (deprivation of federal rights -- in this case, the right to equal protection of the laws -- under color of state law).
After a bench trial, the district judge held that the defendant had violated the Equal Pay Act, and had done so willfully, thus extending the statute of limitations to allow the award of three years of back pay rather than just two. See 29 U.S.C. § 255(a). But he refused to double these damages; the Act gives the district judge discretion not to double if the violation of the Act was "in good faith and [with] . . . reasonable grounds for believing that [the defendant's] act or omission was not a violation." 29 U.S.C. §§ 260, 216(b). The judge dismissed the section 1983 equal-protection count and the Title VII "disparate treatment" (=intentional discrimination) charge on the ground that the discrimination had not been intentional, but he found a "disparate impact" violation of Title VII and held that Cole and Long were entitled to an injunction against it. The parties later negotiated a consent decree which settled the Title VII injunction claim and is not challenged in this appeal. Finally, the judge awarded Cole and Long some $28,000 in attorney's fees under the Equal Pay Act and Title VII.
The school district has appealed, challenging everything but the consent decree. The EEOC has cross-appealed, seeking to have the damages doubled. Finally, Cole and Long challenge the district court's finding that there was no intentional discrimination; they hope to get both comprehensive compensatory damages and punitive damages for this equal protection claim, and not just the back pay they were awarded under the Equal Pay Act.
The trial brought out the following facts:
Long was paid substantially less for coaching girls' track than Steptoe, a man, was paid for coaching boys' track. Although the boys' track program included more students and had more meets than the girls', Steptoe had two assistant coaches compared to Long's one, and as a result Long and Steptoe devoted approximately equal time to their coaching jobs. Long also coached the girls' tennis team, and Jakich, a man, the boys' tennis team; and Jakich was paid more than Long even though there were no significant differences between the teams in number of students, length of season, or number of practice sessions; however, the boys' team played almost twice as many matches as the girls' team. Long was also assistant coach of the girls' basketball team one year and received lower pay than Tyus, the male assistant coach of the boys' track team. The district judge found that the work of the two assistant coaches was substantially equal and required the same skill, effort, and responsibility -- except that Long worked longer hours than Tyus.
Cole, who coached the girls' volleyball, girls' basketball, and girls' softball teams, was paid less for coaching volleyball than the male coach of the boys' soccer team, less for coaching basketball than the male coach of the boys' soccer team, and less for coaching softball than the male coach of the boys' baseball team. Also, as assistant coach of the girls' track team she was paid less than the assistant coach of the boys' track team. In all of these cases the judge found that the work of the female coach and her male counterpart was the same in skill, effort (including time), and responsibility. Any potential differences in effort and responsibility stemming from the fact that the boys' teams were sometimes larger and played longer seasons were, he found, offset by the fact that the head coaches of the boys' teams had more assistants than their female counterparts.
The picture with respect to the other two female coaches on whose behalf the EEOC sued is similar.
The first question we must decide is whether the pairs of jobs that the district judge compared in finding unequal pay are sufficiently similar to be "equal work" within the meaning of the Equal Pay Act. The Act is not a general mandate of sex-neutral compensation. It does not enact "comparable worth" -- the principle that wages should be based on "objective" factors, rather than on market conditions of demand and supply which may depress wages in jobs held mainly by women relative to wages in jobs held mainly by men. See American Nurses' Ass'n v. Illinois, 783 F.2d 716, 718-20 (7th Cir. 1986). A female secretary paid less than a male janitor cannot complain under the Equal Pay Act that the disparity in their wages is not justified by "objective" factors such as differences in skill, responsibility, and effort. "We do not expect the Labor Department people to go into an establishment and attempt to rate jobs that are not equal. We do not want to hear the Department say, 'Well, they amount to the same thing,' and evaluate them so they come up to the same skill or point. We expect this to apply only to jobs that are substantially identical or equal." 109 Cong. Rec. 9197 (1963) (remarks of Congressman Goodell, one of the Act's sponsors). Cf. Lemons v. City & County of Denver, 620 F.2d 228, 229 (10th Cir. 1980). The Act requires equal pay only when men and women are performing "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." 29 U.S.C. § 206(d)(1). The working conditions of a janitor are different from those of a secretary, and so are the skills and responsibilities of the two jobs. The Act does not prohibit paying different wages even if the result is to pay a woman less than a man and by doing so "underpay" her because the difference in the wage rate is greater than necessary to compensate the male for any greater skill, effort, or responsibility required by, or any inferior working conditions encountered in, his job.
Thus the jobs that are compared must be in some sense the same to count as "equal work" under the Equal Pay Act; and here we come to the main difficulty in applying the Act: whether two jobs are the same depends on how fine a system of job classifications the courts will accept. If coaching an athletic team in the Madison, Illinois school system is considered a single job rather than a congeries of jobs, the school district violated the Equal Pay Act prima facie by paying female holders of this job less than male holders, and the only question is whether the district carried its burden of proving that the lower wages which the four female coaches received were lower than the wages of their male counterparts because of a factor other than sex. If on the other hand coaching the girls' tennis team is considered a different job from coaching the boys' tennis team, and a fortiori if coaching the girls' volleyball or basketball team is ...