The opinion of the court was delivered by: RICHEY
This case is before the Court on the issue of relief. On October 1, 1979, the Court issued Findings of Fact and Conclusions of Law in this sex discrimination suit ("opinion"). The specific findings and conclusions of the October 1 opinion are:
1. The across-the-board separate classification of male Bookbinders and female Journeyman Bindery Workers ("JBWs") is a pattern and practice of discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976);
2. The defendant's requirement that JBWs complete a four-year apprenticeship program before attaining Bookbinder status is a pattern and practice of discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964;
3. The defendant's rule that only craftsmen may compete for supervisory and Printing Specialist positions constitutes a pattern and practice of discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964; and
4. Defendant willfully violated the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) (1976), by paying higher wages to male Bookbinders than to female grade 4 JBWs for equal work on jobs the performance of which requires equal skill, effort, responsibility and which are performed under similar working conditions.
The Court must now determine the appropriate relief to which the plaintiff class is entitled. Accordingly, pursuant to Federal Rule of Civil Procedure 52(a), the following supplements the Court's findings of fact and conclusions of law of October 1, 1979.
II. Permanent Injunctive Relief
Congress has granted courts plenary equitable powers under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(g) (1976), for constructing appropriate remedies for employment discrimination. Pursuant to the authorization, plaintiffs seek a permanent injunction restraining the defendant from discriminating against the class plaintiffs on the basis of sex in any aspect of employment. In addition, plaintiffs request a provision in the Court's remedial order enjoining defendant from retaliating against any member of the class because of participation in any manner in this litigation. Defendant opposes this proposed injunctive relief arguing that it is unnecessary because defendant intends to comply with the law and plaintiffs' rights are already protected by Title VII and regulations promulgated thereunder.
Defendant's assertions regarding its future compliance with the law is plainly inadequate to preclude the injunctive relief sought. As the Fourth Circuit has observed: " "(Protestations) or repentance and reform timed to anticipate or to blunt the force of a lawsuit offer insufficient assurance' that the practice sought to be enjoined will not be repeated." Cypress v. Newport News General & Nonsectarian Hospital Ass'n, 375 F.2d 648, 658 (4th Cir. 1967). See also Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972). Absent an injunction, the defendant is unlikely to examine its overall employment practices and bring them into compliance with applicable law. Accordingly, the permanent injunctive relief sought by plaintiffs shall be granted.
Plaintiffs have requested the Court to award them back pay under the provisions of Title VII and the Equal Pay Act. Based upon the Court's findings and conclusions, it is clear that plaintiffs are entitled to relief in the form of back pay. However, there is substantial dispute between the parties as to the nature and scope of such an award under Title VII in this case.
A. Back Pay Under Title VII.
In authorizing courts under Title VII to grant equitable relief to persons harmed by employment discrimination, Congress included the discretion to award back pay. See 42 U.S.C. § 2000e-5(g) (1976). The provision authorizing back pay included in Title VII was expressly modeled on the similar provision in the National Labor Relations Act, 29 U.S.C. § 160(c) (1976),
which is "designed to vindicate the public policy of the statute by making the employees whole for losses suffered on account of an unfair labor practice." Nathanson v. NLRB, 344 U.S. 25, 27, 73 S. Ct. 80, 82, 97 L. Ed. 23 (1952). Under Title VII, the injured workers must be restored to the economic position which they would have occupied but for the discrimination their "rightful place." Thus, back pay is compensatory in nature and necessary in order to grant full relief in employment suits. See Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 251-52 (5th Cir. 1974), cert. denied, 439 U.S. 1115, 99 S. Ct. 1020, 59 L. Ed. 2d 74 (1979).
Once a court has determined that a plaintiff or complaining class has sustained economic loss from a discriminatory employment practice, a presumption in favor of back pay arises, and any denial must be well supported. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S. Ct. 2362, 2373, 45 L. Ed. 2d 280 (1975); Laffey v. Northwest Airlines, Inc., 185 U.S. App. D.C. 322, 567 F.2d 429, 470 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S. Ct. 1281, 55 L. Ed. 2d 792 (1978). With these considerations in mind, the Court now focuses on the particular equities presented by the case at bar.
Defendant has maintained a job classification system whereby male Bookbinders are classified as "Craft" employees and female JBWs (all grades) are classified as "Non-craft" employees. For the reasons stated below, the Court found this separate classification system discriminatory in violation of Title VII of the Civil Rights Act of 1964. The Court's findings were based upon credible and persuasive evidence indicating the various JBW and Bookbinder positions are sufficiently similar in content and working conditions as to make "the across-the-board" separation of the Bookbinder and JBW operations unjustified. Opinion at 1154, 1159.
The Court's final finding was with respect to the plaintiffs' allegations under the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d)(1) (1976). On the basis of compelling evidence illustrating that jobs of individual plaintiffs at the grade 4 JBW level and jobs of individual Bookbinders are substantially equal in job content, skill, effort, responsibility and working conditions, the Court found that the defendant violated the Equal Pay Act by paying higher wages to male Bookbinders than to female grade 4 JBWs. Id. at 1167.
Plaintiffs now contend the Court's finding regarding the separate classification system maintained by defendant unequivocally supports the conclusion that JBWs of all grades should have been within the same job classification and been paid the same wage as Bookbinders during the relevant time period. This is so, plaintiffs contend, because the Court's finding mandates a single classification of jobs, and since all Bookbinders are paid the same wage, all employees within the single classification should be paid an equal wage.
Defendant vigorously opposed such a conclusion. Defendant correctly indicates that the Court found that defendant violated the Equal Pay Act with respect to only 28 grade 4 JBWs. As to the remainder of the plaintiff class, the Court did not find that the grades 2, 3 and 5 JBWs were entitled to equal pay with that of Bookbinders. Defendant submits that the Court's finding that the class has been deprived of its rights under Title VII in terms of access to "Craft" and supervisory positions is not in contradiction with a finding that only grade 4 JBWs should have received equal wages with Bookbinders.
The Court is not prepared to conclude that the elimination of the disparate advancement opportunities, resulting in part from the separate classification of JBW and Bookbinder positions, mandates the imposition of equal wages for all of the various positions. The distinction between "Craft" and "Non-craft" employees on its face does not offend Title VII in the context of this case. Rather, it is the foreclosure of advancement opportunities to JBWs resulting from the separate classification system and the apprenticeship program operating together which cannot withstand Title VII scrutiny. Compensation for the economic loss caused by this foreclosure simply does not entail the imposition of equal wages for JBWs and Bookbinders. The Court specifically found that JBW grades 2, 3 and 5 were not entitled to wages equal to those earned by Bookbinders because plaintiffs had failed to prove substantial equality of the various positions. Id. To equate the wages of all JBWs with the wages of all Bookbinders is not supportable by the Court's findings and conclusions with regard to the defendant's Title VII liability. Accordingly, the portion of the back pay requested by plaintiffs seeking to equalize the wages paid to grades 2, 3 and 5 JBWs with those paid to Bookbinders during the relevant recovery period is not justified and shall be denied.
1. Back Pay for Discriminatory Denial of Promotions.
An appropriate approach to the determination of the relief to which plaintiffs are entitled as a result of the foreclosure of advancement opportunities is not easily defined. As the Fifth Circuit has observed:
The method of calculating a class-wide back pay award must not be rigid. This results from the impossibility of calculating the precise amount of back pay. There is no way of determining which jobs the class members would have bid on and have obtained if discriminatory testing, seniority, posting and bidding system, and apprentice and on-the-job training programs had not been in existence. Class members outnumber promotion vacancies; jobs have become available only over a period of time; the vacancies enjoy different pay rates; and a determination of who was entitled to the vacancy would have to be determined on a judgment of seniority and ability at that time. This process creates a quagmire of hypothetical judgments. Johnson v. Goodyear Tire and Rubber Co., supra, 491 F.2d 1364 at 1379 (5th Cir.).
Pettway v. American Cast Iron Pipe Co., supra at 260. The Court in Pettway further stated, however, that "(i)t does not follow that back pay claims based on promotions cannot be awarded." Id.
Because it is practically impossible to determine which class members would have been promoted absent discrimination, a formula approach to back pay is indicated. The loss to plaintiffs should be measured, in terms of back pay, by the wages they would have received collectively had they obtained promotions absent discrimination. While arriving at this measure is not a simple task, it can be accomplished by reconstructing the promotions that actually took place during the relevant time period and attributing to plaintiffs a share of those promotions for purposes of back pay. A similar approach has been discussed and approved by the Fifth Circuit in Pettway :
Another method of computation can be categorized as a formula of comparability or representative employee earnings formula. Approximations are based on a group of employees, not injured by the discrimination, comparable in size, ability, and length of employment such as "adjacent persons on the seniority list or the average job progress of persons with similar seniority" to the class of plaintiffs.
494 F.2d at 262 (footnote omitted). The Fifth Circuit called this a "comparability formula" and explained the operation of a similar formula approach suggested by the Equal Employment Opportunity Commission:
In other words, the total award for the entire class would be determined. At that point, individual claims would be calculated on pro rata shares for those workers of similar ability and seniority claiming the position, possibly eliminating the necessity of deciding which one of many employees would have obtained the position but for the discrimination. Claimants dissatisfied with their portion of the award could be allowed to opt out in order to prove that they were entitled to a larger portion. Cf. Fed.R.Civ.P. 23(d)(2); Protective Committee v. Anderson, 390 U.S. 414, 435, n.17, 88 S. Ct. 1157, 1169 n.17, 20 L. Ed. 2d 1 (1968).
Finally, for purposes of clarity and in anticipation of later confusion, the Court reiterates one facet of the scope of this Title VII back pay award: Whether or not an individual plaintiff applied for a promotion position, that member is entitled to share in the relief provided by the formula discussed above. This conclusion is well-supported in the Court's Opinion regarding defendant's Title VII liability. See Opinion at 1161-1163. Furthermore, the prevailing Equal Pay Act plaintiffs are entitled to relief under the Equal Pay Act as well as Title VII so long as they do not receive overlapping relief for the same wrong. Laffey v. Northwest Airlines, Inc., supra at 445.
B. Back Pay under the Equal Pay Act.
The Court found that defendant violated the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d)(1) (1976), by paying higher wages to male Bookbinders than to female grade 4 JBWs for equal work on jobs the performance of which requires equal skill, effort, responsibility and which are performed under similar working conditions. Opinion at 1167. Furthermore, applying the standards established in Laffey v. Northwest Airlines, supra, the Court found defendant's violations of the Equal Pay Act willful. Id.
The term "prevailing Equal Pay Act plaintiffs" shall refer collectively to the five-named plaintiffs and the 23 other grade 4 JBWs, listed on Exhibit A to the Court's remedial order, who became parties plaintiff with respect to the Equal Pay Act aspects of this lawsuit pursuant to 29 U.S.C. § 216(b). The Court granted judgment to defendant on the Equal Pay Act claims of all JBWs other than grade 4 because plaintiffs failed to prove substantial equality of the Bookbinder positions and the positions of JBW grades 2, 3 and 5. Id. at 1167.
The prevailing Equal Pay Act plaintiffs are entitled, as a matter of right, to the relief set forth in 29 U.S.C. §§ 216-17: (1) back pay as a result of the initial wage differential; and (2) an amount equal to the back-pay award as liquidated damages; and (3) reasonable attorneys' fees and costs of the action.
1. Back Pay as a Result of the Initial Wage Differential.
The prevailing Equal Pay Act plaintiffs are clearly entitled to receive an amount equal to the difference between the wages actually paid them during the relevant time period and the wages which would have been paid them had they been compensated as Bookbinders. The Court's remedial order includes a provision implementing such an award.
The standard for awarding liquidated damages under the Equal Pay Act, 29 U.S.C. §§ 216, 260 (1976) was set forth by the Court of Appeals for this Circuit in Laffey v. Northwest Airlines, Inc., supra, 567 F.2d at 464-65:
(footnotes omitted). Under this standard, an award of liquidated damages to the prevailing Equal Pay Act plaintiffs is mandatory because defendant has failed to satisfy the Court that its failure to comply with the Equal Pay Act was in good faith. Accordingly, a provision awarding liquidated damages in an amount equal to the award of back pay shall be included in the Court's remedial order.
3. Attorney's Fees and Costs.
The prevailing Equal Pay Act plaintiffs are entitled to an award of "a reasonable attorney's fee to be paid by the defendant, and costs of the action." 29 U.S.C. § 216(b) (1976). The Court, however, declines to rule on the appropriate amount of the fee and cost award in the absence of a formal petition requesting specific dollar amounts.
C. The Appropriate Retroactive Recovery Period for Purposes of Back Pay under Title VII and the Equal Pay Act.
The Court must resolve whether the class members are entitled to back pay to remedy any discrimination they might have suffered before March 24, 1972, the date on which Congress gave employees of the federal government the right to sue under Title VII. It is plaintiff's position that pre-March 24, 1972, discrimination may be taken into account for purposes of back pay because (1) the defendant's liability is the result of a "continuing violation" of Title VII, and (2) as a result of the fifth amendment and several executive orders, the federal government was prohibited from discriminating against federal employees on the basis of sex well before Title VII was made applicable to the federal government on March 24, 1972.
The Equal Employment Opportunity Act of 1972
("1972 Act") created a new § 717(c) for Title VII which permits employees of the federal government who suffer employment discrimination to seek relief in the federal courts. 42 U.S.C. § 2000e-16(c) (1976). As a result, back pay became available to federal employees to compensate them for discriminatory conduct by the federal government. Prior to the 1972 Act, an award of back pay against the federal government was apparently barred by the principle of sovereign immunity:
Although an action seeking to enjoin unconstitutional agency conduct would lie (before March 24, 1972), it was doubtful that back pay or other compensatory relief for employment discrimination was available at the time that Congress was considering the 1972 Act.
Brown v. General Services Administration, 425 U.S. 820, 826, 96 S. Ct. 1961, 1964-1965, 48 L. Ed. 2d 402 (1976) (footnote omitted). The 1972 amendments to Title VII removed the "legal obstacles" that federal employees had faced "in obtaining meaningful remedies," including back pay, for acts of employment discrimination. H.R.Rep.No. 92-238, 92d Cong., 2d Sess. 25, reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 2137, 2160.
Several courts have held that § 717(c) of Title VII may be applied retroactively where the complaint was pending administratively or judicially on the effective date of the 1972 amendments. Womack v. Lynn, 164 U.S. App. D.C. 198, 504 F.2d 267 (D.C.Cir.1974); Mahroom v. Hook, 563 F.2d 1369, 1373 (9th Cir. 1977), cert. denied, 436 U.S. 904, 98 S. Ct. 2234, 56 L. Ed. 2d 402 (1978); Eastland v. Tennessee Valley Authority, 553 F.2d 364, 367 (5th Cir.), cert. denied, 434 U.S. 985, 98 S. Ct. 611, 54 L. Ed. 2d 479 (1977); Weahkee v. Powell, 532 F.2d 727, 729 (10th Cir. 1976); Adams v. Brinegar, 521 F.2d 129, 133-34 (7th Cir. 1975); Koger v. Ball, 497 F.2d 702, 704 (4th Cir. 1974). The rationale of these decisions is that, because a federal employee's right to be free from discrimination had existed before the passage of the 1972 Act, § 717(c) did not create a new substantive right, but rather provided a new remedy for enforcing an existing right. Retroactive application of § 717(c) to pending claims was justified by the common-law principle that "(procedural) statutes that affect remedies are generally applicable to cases pending at the time of enactment." Koger v. Ball, supra at 706 (footnote omitted); Womack v. Lynn, supra at 269. Of course, since plaintiffs did not file their administrative complaint alleging patterns and practices of ...