BEFORE THE IOWA CIVIL RIGHTS COMMISSION

ALICE J. PEYTON, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

BOARD OF SUPERVISORS OF BUCHANAN COUNTY, Respondent.

CP # 01-90-19528

Conclusions of Law Continued

IV. Disparate Treatment Theory:

27. The disparate treatment theory of discrimination was relied on in this case:

"Disparate treatment" is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their . . . sex . . . . Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment.

Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W.2d 512, 516 (Iowa 1990)(quoting Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977)).
V. Order and Allocation of Proof Where Complainant Relies on Circumstantial Evidence to Prove Discrimination Under the Disparate Treatment Theory:

A. Distinction Between "Burden of Persuasion and Burden of Production":

28.

23. The "burden of persuasion" in any proceeding is on the party which has the burden of persuading the finder of fact that the elements of his case have been proven. BLACK'S LAW DICTIONARY 178 (5th ed. 1979). The burden of proof in this proceeding was on the Complainant [and the Commission] to persuade the finder of fact that the elements of each allegation of discrimination [have been proven]. [Iowa Code S 216.5(7);] Linn Co- operative Oil Company v. Mary Quigley, 305 N.W.2d 728, 733 (Iowa 1981). Of course, in discrimination cases as in all civil cases, the burden of persuasion is "measured by the test of preponderance of the evidence." Iowa R. App. Pro. 14(f)(6).

24. The burden of persuasion must be distinguished from what is known as "the burden of production" or the "burden of going forward." The burden of production refers to the obligation of a party to introduce evidence sufficient to avoid a ruling against him or her on an issue. BLACK'S LAW DICTIONARY 178 (5th ed. 1979).

25. In the typical discrimination case, in which the Complainant uses circumstantial evidence to prove disparate treatment on a prohibited basis, the burden of production, but not of persuasion, shifts. Iowa Civil Rights Commission v. Woodbury County Community Action Agency, 304 N.W.2d 448 (Iowa Ct. App. 1981). These shifting burdens of production "are designed to assure that the [Complainant has] his day in court despite the unavailability of direct evidence." Trans World Airlines v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed. 2d 523, 533 (1985).

Dorene Polton, at 162.

B. Summary of the Order and Allocation of Proof in Circumstantial Evidence Disparate Treatment Cases:

29. The following order and allocation of proof was utilized in this case:

26. The Complainant has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986). This showing is not the equivalent of an ultimate factual finding of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 579 (1978). Once a prima facie case is established, a presumption of discrimination arises. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).

27. The burden of production then shifts to the Respondent, i.e. the Respondent is required to produce evidence that shows a legitimate, non- discriminatory reason for its action. Id.; Linn Co-operative Oil Company v. Quigley, 305 N.W.2d 728, 733 (Iowa 1981); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). If the Respondent does nothing in the face of the presumption of discrimination which arises from the establishment of a prima facie case, judgment must be entered for Complainant as no issue of fact remains. Hamilton v. First Baptist Elderly Housing Foundation, 436 N.W.2d 336, 338 (Iowa 1989). If Respondent does produce evidence of a legitimate non-discriminatory reason for its actions, the presumption of discrimination drops from the case. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 156 (Iowa 1986).

28. Once the Respondent has produced evidence in support of such reasons, the burden of production then shifts back to the Complainant to show that the reasons given are pretextual. Trobaugh v. Hy-Vee Food Stores, Inc., 392 N.W.2d 154, 157 (Iowa 1986); Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988). Pretext may be shown by "persuading the [finder of fact] that a discriminatory reason more likely motivated the [Respondent] or indirectly by showing that the [Respondent's] proffered explanation is unworthy of credence." Wing v. Iowa Lutheran Hospital, 426 N.W.2d 175, 178 (Iowa Ct. App. 1988) (quoting Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981)).

29. This burden of production may be met through the introduction of evidence or by cross- examination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207, 216 & n.10 (1981). The Complainant's initial evidence and inferences drawn therefrom may be considered on the issue of pretext. Id. at n.10. This burden of production merges with the Complainant's ultimate burden of persuasion, i.e. the burden of persuading the finder of fact that intentional discrimination occurred. Id. 450 U.S. at 256, 101 S. Ct. at , 67 L. Ed. 2d at 217.

Dorene Polton, at 162.

VI. The Prima Facie Case in Pay Discrimination Cases:

A. The Prima Facie Case In General:

30.

21. The burden of establishing a prima facie case of discrimination is not onerous. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The complainant is merely required to produce enough evidence to permit the trier of fact to infer that the employer's action was taken for a discriminatory reason. Id. at 254 n.7. A prima facie case may be shown in a variety of ways as there will be different factual circumstances present in each case. Teamsters v. United States, 431 U.S. 324, 358 (1977)(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973)).

22. While a prima facie case of discrimination may be established though evidence of "differences in treatment," Hy-Vee Food Stores, Inc. v. Iowa Civil Rights Commission, 453 N.W. 2d 512, 516 (Iowa 1990)(quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335-36 n.15 (1977)), it may also be established through a "showing of treatment so at variance with what would reasonably be anticipated absent discrimination that discrimination is the probable explanation." City of Minneapolis v. Richardson, 239 N.W.2d 197, 202 (Minn. 1976).

Maxine Boomgarden, slip. op. at 66.

B. The Prima Facie Case In Pay Discrimination Cases:

1. The Elements of the Equal Pay Prima Facie Case:

31. The prima facie standard used in this case is the one typically used in "equal pay" cases:

10. . . . One way for a Complainant to establish a prima facie case of sex discrimination in pay is to show "that an employer pays different wages to employees of opposite sexes for equal work on jobs requiring equal skill, effort, and responsibility and are performed under similar working conditions." 29 C.F.R. Section 1620.27(c).

Ann Redies, at 26 (emphasis added). Evidence meeting this standard will also establish a prima facie case of sex discrimination in pay under both the Equal Pay Act and Title VII of the Civil Rights Act of 1964. E.g. Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 2228 (1974)(Equal Pay Act); Miller v. Beneficial Management Corp., 977 F.2d 834, 60 Empl. Prac. Dec. _ 41841 at 72934 (3rd Cir. 1992)(Title VII and EPA); Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 24 Fair Empl. Prac. Cas. 1019, 1020 (8th Cir. 1981)(Title VII and EPA); McKee v. Bi-State Development Agency, 801 F.2d 1014, 42 Fair Empl. Prac. 431, 434-35 (8th Cir. 1986)(Title VII and EPA); Parker v. Burnley, 693 F. Supp. 1138, 47 Fair Empl. Prac. 587, 596 (N.D. Ga. 1988)(Title VII and EPA). See 29 C.F.R. S 1620.27(a). One of the elements of the prima facie case, that Complainant was paid less than her male predecessor and successor, is well-established in the record and admitted by Respondent on brief. (Respondent's Brief at 6). See Findings of Fact Nos. 30-35.

2. In Establishing a Prima facie Case, Jobs are Being Compared, Not the Employees In Them:

32. In equal pay cases, such as this one:

Jobs are being compared, not the employees in them.

. . .

The district court in Wirtz v. Basic, Inc. summed up the concept when it wrote:

Fundamental in the application of the law is the premise that it establishes an objective standard requiring that a judgment with respect to alleged discrimination between sexes is based upon the requirements of the particular jobs being compared, rather than a comparison of the skill of individual employees, the effort of individual employees or their previous training and experience.

Omilian, Sex-Based Employment Discrimination S 7.03 at 17-18 (1993)(quoting Wirtz v. Basic, Inc., 256 F. Supp. 786, 790, 9 Fair Empl. Prac. Cases 472 (D. Nev 1966)(italics in original).

3. The Jobs Being Compared Need Not Have Been Held Simultaneously by the Complainant and by Male Comparators:

33. Complainant Peyton relied on comparison with the job requirements and salaries of the jail administrator position as held by both her predecessor and successor. There is ample legal authority allowing the comparison of a job and salary held by a more highly paid male with that held by a lower paid female who either preceded or succeeded him. The male "comparator" and the female complainant need not have been performing the jobs being compared either simultaneously, e.g. Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 24 Fair Empl. Prac. Cas. 1019, 1020 (8th Cir. 1981); Pearce v. Witchita County, 590 F.2d 128, 19 Fair Empl. Prac. Cas. 339, 342 (5th Cir. 1979); 29 C.F.R. S 1620.13(b)(2),(4), or in immediate succession. Clymore v. Far-Mar Co., 709 F.2d 499, 42 Fair Empl. Prac. 439, 441 (8th Cir. 1983); Schlei & Grossman, Employment Discrimination Law: Five Year Cumulative Supplement 165-66 (1989). It is sufficient that the complainant establish a violation with respect to one comparator. Ellison v. United States, 25 Cl. Ct. 481, 58 Fair Empl. Prac. Cases 955, 959-60 (1992); Schlei and Grossman. Employment Discrimination Law: Five Year Cumulative Supplement at 166. See Omilian, Sex- Based Employment Discrimination S 7.03 at 118-19 (1993).

4. In Determining Whether a Prima Facie Case Has Been Proven, the Focus is on Job Duties Actually Performed and Not Job Titles:

34. While the Respondent suggested, on brief, that Complainant Peyton had established a prima facie case of sex discrimination in pay merely by showing that she was paid less than her male predecessor and successor, (Respondent's Brief at 6), a prima facie case is not established merely by showing that a higher paid male predecessor and a lower paid female had the same job title:
The focus is on the duties actually performed by employees in the jobs. Job titles, job classifications or job descriptions are relevant but not controlling. Application of the equal pay standard depends on actual job requirements and performance. . . . Job titles are frequently too general; they provide very little guidance as to job content or else the title describes what seem to be, but is in fact not, equal work. For example . . . [i]n Wheeler v. ARMCO Steel Corp., the court found that even though plaintiff's job title was identical to the man she replaced, she performed fewer duties and her lower pay was not discriminatory.

Omilian, Sex-Based Employment Discrimination S 7.03 at 17 (1993)(italics in original).

5. In Order to Establish a Prima Facie Case, the Jobs Compared Need Only Be "Substantially Equal," Not "Identical".

35.

[A] majority of courts have agreed that the jobs being compared need not be identical to be equal, only that they be "substantially equal." "Any other interpretation would destroy the remedial purposes of the Act", the Fifth Circuit Court of Appeals said in Shultz v. Wheaton Glass Co.

Omilian, Sex-Based Employment Discrimination S 7.03 at 16 (1993)(quoting Shultz v. Wheaton Glass Co., 421 F.2d 259, 265 (5th Cir. 1970)). "'[E]qual' does not mean 'identical," rather the jobs must require similar skills, effort and responsibility under similar working conditions." Ellison v. United States, 25 Cl. Ct. 481, 58 Fair Empl. Prac. Cases 955, 959 (1992).

VII. What is Meant By "Equal Skill", "Equal Effort", "Equal Responsibility" and "Similar Working Conditions":

A. Equal Skill, Effort, and Responsibility:

36.

What constitutes equal skill, equal effort, or equal responsibility cannot be precisely defined. [T]he broad remedial purpose of the law must be taken into consideration. The terms constitute separate tests, each of which must be met in order for the equal pay standard to apply. It should be kept in mind that "equal" does not mean "identical." Insubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable. On the other hand, substantial differences, such as those customarily associated with differences in wage levels when the jobs are performed by persons of one sex only, will ordinarily demonstrate an inequality as between the jobs justifying differences in pay.

29 C.F.R. Section 1620.14.Ann Redies, at 26 (quoting 29 C.F.R. S 1620.14).

37. Although no precise definition of these terms are available, the courts have relied on EEOC regulations on "skill," "effort," and "responsibility":

"Skill" includes consideration of such factors as experience, training, education, and ability [required for the job]. 29 C.F.R. S 1620.15(a). "Effort" is concerned with the measurement of the physical or mental exertion needed for the performance of the job. 29 C.F.R. S 1620.16(a). "Responsibility" is concerned with the degree of accountability required in the performance of the job, with emphasis on the importance of job obligation. 29 C.F.R. S 1620.17(a).

Ellison, 25 Cl. Ct. 481, 58 Fair Empl. Prac. Cases at 961. When considering these three criteria, "courts frequently do not break their analyses down into separate comparisons by individual criterion." Schlei & Grossman, Employment Discrimination Law 449-450 (1983).

B. Similar Working Conditions:

38.

The term "similar working conditions" encompasses two subfactors: "surroundings" and "hazards." "Surroundings" measure the elements, such as toxic chemicals or fumes, regularly encountered by a worker, their intensity and frequency. "Hazards" take into account the physical hazards regularly encountered, their frequency and the severity of injury they can cause.

29 C.F.R. S 1620.18.