Women and equal pay -- court pushes door wider

In the Washington County jails in Oregon, the female guards had fewer prisoners to watch and spent some of their time in clerical duties. The male guards had more prisoners and no outside duties.

The county decided that since the jobs were different, the women should be paid only 95 percent of what the men got. But when it set the pay scales, the women were paid only 70 percent as much.

Alberta Gunther and three of her former co-workers have sued and this week won a major victory in the US Supreme Court for equal pay rights.

With only a one-vote margin, the high court opened the door for women to bring such discrimination suits even though the women were comparing their pay to the pay of men who held somewhat different jobs. The five-justice majority refused to cut off court access simply because the case did not fit the formula for equal jobs.

Speaking for the majority, Associate Justice William J. Brennan Jr. wrote that the four women could sue on the basis of Title VII of the Civil Rights Act of 1964, which has broad antidiscriminatory language. "We must . . . avoid interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate," said Justice Brennan.

Lawyers for the county had argued that women could bring equal pay suits only under the "equal work" standard of the Equal Pay Act, which is much narrower.

Brennan countered that this would mean "that a woman who is discriminatorily underpaid could obtain no relief -- no matter how egregious the discrimination might be -- unless her employer also employed a man in an equal job in the same establishment, at a higher pay."

The Washington v. Gunther case has been seen as a first step toward developing a controversial "comparable worth" theory for equal pay suits. Opponents say "comparable worth" would wreak havoc in the economy. It would force reevaluation of job and salaries, comparing "equal value" instead of identical duties. In the extreme, it would mean comparing a salesperson to a truck driver, a nurse to a doctor, say opponents.

However, the court's ruling this week does not endorse "comparable worth." Brennan said that the "narrow" question involved was only whether the four women could bring their suit. The court was asked only to decide if there was intentional sex discrimination in the pay scales, not to assess the value of male and female guard jobs, he said.

In a strongly worded dissent, Justice William H. Rehnquist spoke for three of his colleagues in charging that the court was adding a "gloss of its own choosing" to Title VII of the Civil Rights Act. Justice Rehnquist said that Congress had not intended to allow such sex discrimination suits except in cases of equal work. He cited an amendment to the act as cutting off comparable wage rate suits.

Mary L. Heen, an attorney with the Women's Rights Project of the American Civil Liberties Union, called the decision a "major victory" for court access in sex discrimination cases. The ACLU and 13 other groups, including the major feminist organizations, had urged in a brief that the court allow pay discrimination suits under the Civil Rights Act. Had the court refused, it would have narrowed the type of cases that could be tried, said attorney Heen.

The court's decision does not lay down the ground rules for bringing future Title VII pay cases to court, and the dissent charges that the ruling is "so narrowly written as to be virtually meaningless." Heen pointed out, however, that the standards for equal pay suits "can be developed at the trial court level."

In other rulings as the Supreme Court continues to wrap up its 1980-81 term, the justices:

* Held unanimously that the American Express Company can revoke the credit card of a business without giving it the same chance to challenge the action as an individual customer would have.

* Threw out US Treasury regulations that listed employer-furnished meals and lodging as taxable income. The 6-to-3 majority invalidated the rule aimed at workers who live at their job sites, including oil rigs and gas wells.