of which is devoted to other duties). Nor is there any dispute that, in addition to selecting and packing at the lehrs or in resort, male selector-packers perform other duties. It is this area of "other duties," their necessity, nature, extent, and whether they are substantial enough to warrant the existing wage differential between the sexes, that lies at the core of our problem.
Attention has already been directed to some 16 or 17 different and specific duties performed by males and not by females. Other factors to be considered, and distinctions to be made, are the six-month training or probationary period for men and that of three months for women; the greater flexibility in the use of the defendant's pool of employees made possible by the availability of men for work in excess of ten hours in any one work day and 54 hours in any one work week,
since the plant is in full production, 24 hours a day, 7 days a week; the excessive "absenteeism" of the females on a three-to-one ratio to the males, causing more than mere inconvenience in such a full-time production plant, for its results in gaps in the labor lines which must be filled on short notice by the use of males at a higher base rate and at the usual overtime rate.
Defendant denies that distinction in sex lies at the heart of its wage disparity. It insists that the practical factors upon which its wage disparity is based are primarily the performance of the essential overall duties of the male selector-packers, involving as they do additional effort, skill, judgment and responsibility, made necessary by the peculiar character of its specialized type of operations. This being so, it argues, such real, practical and reasonable bases constitute factors other than sex as provided by the express exceptive language of the Act, and consequently there is no evasion in any sense of the salutary economic equality in sexes established by Congress.
The basic issue, of course, requires a determination of whether there is a difference in fact between male and female performance in the job of selector-packer and, if so, whether such difference is essential and substantial enough to constitute a realistic economic basis for disparity in wage rates. However, if such difference is merely incidental, insignificant and unsubstantial to the performance of the principal task of the department in question, then it must be concluded that it is more artificial than real, leaving sex as the only realistic and distinctive basis for the wage disparity, contrary to the Act.
As heretofore stated, the declared purpose of the Act was to eliminate discrimination in wage payments to employees on the basis of sex where equal work was being performed by both men and women under the same or similar working conditions. However, if the differential is based upon any other factor other than sex, then that differential is beyond the reach of the Act. Legal precedents for guidance in the interpretation of this Act are few.
It is readily apparent that, in cases of this nature, the facts of work performance are the vital ingredients in determining the application of the Act. Factual resolution must be made on a case to case basis. In addition to conflicting views regarding the significance of job differences, the parties have advanced diametrically opposed contentions with respect to the intention of the Act. If there be some doubt of the statutory intent regarding the elements of the Act, its interpretation and application, as well as the burden of proof in cases of alleged violation, the Court may resort to the legislative history for the meaning attributed by the sponsors to the bill before its passage. Statements of sponsors of legislation provide an important and useful source of Congressional intent and purpose. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-395, 95 L. Ed. 1035, 71 S. Ct. 745 (1951), reh. den. 341 U.S. 956, 71 S. Ct. 1011, 95 L. Ed. 1377 (1951), quoted with approval in National Woodwork Mfgrs. Association v. NLRB, 386 U.S. 612, 640, 18 L. Ed. 2d 357, 87 S. Ct. 1250 (1967), reh. den. 387 U.S. 926, 87 S. Ct. 2026, 18 L. Ed. 2d 985 (1967). The legislative history of the Act clearly reveals that Congress intended to substitute the word "equal" for the former word "comparable," thereby meaning "substantially identical" rather than merely "similar" work.
Additionally, it employed two dissimilar concepts when it used both words "equal" and "similar" within the same sentence, obviously attributing different meanings to each, i.e. "equal" to work and "similar" to conditions. When the proposed Bill for equal pay was carried over from the 87th to the 88th Congress, the word "equal" was recommended by the Subcommittee. Not only was "equal" subsequently adopted by Congress as the vital spinal cord in the body of the Act, but the Act, itself, was named the "Equal Pay Act of 1963" and mandated the equation of equal pay for equal work - not almost, not like, not comparable and not similar, but "equal." In the difficult search for the precise meaning of statutory words, it is fortunate that the United States Congress provides the unique baffle of legislative history, lending a reliable measure of exposition in sound and depth to its statutory pronouncements. After much debate in both Houses, regarding clarification and the significance to be attributed to the concept "equal," Congress expressly set forth the elements of "skill," "effort" and "responsibility," as its components and guidelines in the interpretation and application of the Act.
So, also, was the key factor of sex discrimination explained. For as was said by Congressman Goodell, in speaking of intent of the Act, "[We] want the private enterprise system, employer and employee and a union, if there is a union, to have a maximum degree of discretion in working out the evaluation of the employee's work and how much he should be paid for it . . . . [Sex] is the sole factor that we are inserting here as a restriction."
It was he who authored the first bills proposing that the equal pay provisions be placed within the Fair Labor Standards Act and that the terms "effort," "skill," "responsibility" and "similar working conditions," in exposition of the phrase "equal work," be incorporated therein.
Again, it was Congressman Goodell, joined by Congressmen Frelinghuysen and Griffin, who stated that in the event of alleged violations, it was the intention of the Bill to place two burdens of proof upon the Secretary of Labor: one, that of establishing a discrimination based on sex and, two, that of proving that such discrimination was not in fact based upon some other factor, other than sex.
However, in the Upper House, the Chairman of the Senate Subcommittee, who guided the Bill through that body, declared that an employer who interposes a defense of exception to coverage assumes the burden of proving that it comes within the exceptive provisions of the Act.
The Act itself makes no express provision for the imposition of the burden of proof on either party. However, after its passage, the Wage and Hour Administrator, recognizing the divergence of views expressed in both Houses, adopted as an administrative interpretation the view of the Senate that the burden was upon the employer. 29 CFR § 800.141. The Administrator's interpretation of the legislation, charged as he is with its actual enforcement, is entitled to great weight. Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 15 L. Ed. 2d 694, 86 S. Ct. 737 (1966). The view imposing the burden upon the employer is the better one. Traditionally, one who alleges must prove. When the Secretary charges a violation, the burden of proof is his. Similarly, when an employer asserts an exception as an affirmative defense, the burden of proof is his. By way of analogy, the Supreme Court, in cases of claimed exemption from coverage by the Act, has placed the burden of proof upon the claimant or employer. Idaho, ibid, pp. 206, 208; Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 4 L. Ed. 2d 393, 80 S. Ct. 453 (1960); Mitchell v. Kentucky Finance Co., 359 U.S. 290, 3 L. Ed. 2d 815, 79 S. Ct. 756 (1959); Walling v. General Industries Co., 330 U.S. 545, 91 L. Ed. 1088, 67 S. Ct. 883 (1947). Its rationale seems far more compelling for acceptance in cases of undisputed coverage under the Act, but where, as here, exception is asserted.
It is precisely within the sphere of the statutory general exception of "any other factor other than sex," that the defendant has met its burden and demonstrated in a most convincing manner that substantial differences exist, in fact, in the full job cycles between the sexes, thereby justifying the disparity in their wages.
Hardheaded industrial performance is demanded by the defendant in its "around-the-clock" business, which work performance must be practically and reasonably geared to its bisexual labor supply with its distinctive utility. The Act was never intended to circumscribe an employer's appraisal or determination of the need and utilitarian value of an employee's performance. What was intended was prohibition of specious distinction based upon sex alone, all other things being equal.
It seems reasonably clear, both from the legislative history and the express statutory declaration of the Equal Pay Act, that discrimination in the payment of wages shall not be based upon sex under the Fair Labor Standards Act, of which it is now a part, any more than it might be based upon religion, color or national origin under the Civil Rights Act.
A consideration somewhat in depth of the divergence in job content of defendant's male and female selector-packers tends to demonstrate that sex is a mere incidence to the real difference in their respective performances. True, in the assembly line phase of selecting and packing, both men and women perform identical functions. If nothing more remained to be done, and in fact was not done, then it would seem clear that within the confines of this work function, they would be performing equal work for which equal pay should be mandated. But, the evidence demonstrates that such is not the case. For the job of the male neither begins nor ends with that particular performance, as it does with the female. It is the extended scope of the male's job requirements coupled with other distinguishing factors, heretofore set forth, and their cumulative effect upon which focus must be directed. So viewed, the proof amply demonstrates that men and women do not perform equal work under similar conditions within the intendment of the Act. To the contrary, men are required to exert additional effort, to possess additional skill and to have additional responsibility, which frequently are performed and discharged under the ever changing demands of working conditions, dissimilar to those prevailing for women.
In conclusion, the plaintiff-Secretary of Labor has failed to carry the burden imposed upon him by the Act, of proving that defendant's wage differential is based upon sex discrimination. In contrast, the defendant has discharged its burden of proving that it is within an exception to the general standard of wage equality imposed by the Act, for the acceptable proof convincingly demonstrates that the defendant's disparity in wages is based upon factors other than sex, and, consequently, as a matter of law, it is not in violation of the Act.
The foregoing opinion shall be in lieu of findings of fact and conclusions of law in compliance with Rule 52, F.R. Civ. P., 28 U.S.C.
Counsel shall submit an appropriate order for judgment in favor of the defendant.