Freedman, Seitz and Aldisert, Circuit Judges.
This appeal presents important problems in the construction of the Equal Pay Act of 1963 (29 U.S.C. § 206(d)), which was added as an amendment to the Fair Labor Standards Act of 1938 (29 U.S.C. §§ 201 et seq.).
The Equal Pay Act prohibits an employer from discriminating "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 . . . ."*fn1
Invoking the enforcement provisions of the Fair Labor Standards Act*fn2 the Secretary of Labor brought this action against Wheaton Glass Co., claiming that it discriminated against its "female selector-packers" on the basis of sex by paying them at an hourly rate of $2.14, which is 10% less than the $2.355 rate it pays to its "male selector-packers." The Secretary sought an injunction against future violations and the recovery of back pay for past violations.*fn3 The company denied that the female selector-packers perform equal work within the terms of the Act and claimed that in any event the 10% pay differential is within exception (iv) of the Act because it is based on a "factor other than sex."
After an extensive trial the district court entered judgment for the defendant, holding that the Secretary had failed to carry his burden of proving that the wage differential was based upon sex discrimination and that the company had discharged the burden of establishing the exception that the wage differential was based on a factor other than sex. Wirtz v. Wheaton Glass Co., 284 F. Supp. 23 (D.N.J. 1968). The Secretary has appealed.
The company is one of the largest manufacturers of glass containers in the United States. Its plant at Millville, New Jersey, which is here involved, is called a "job shop" plant and manufactures glass containers to special order. Unlike the usual modern plants in the glass industry which make standard items in large quantities and employ automatic machinery, the company's job shop operation requires manual handling and visual inspection of the product.
Selector-packers are employed in the Bottle Inspection Department. They work at long tables and visually inspect the bottles for defects as they emerge on a conveyor from the oven, or "lehr." The defective products are discarded into waste containers. Those which meet the specifications are packed in cardboard cartons on a stand within arm's reach of the selector-packers and then lifted onto an adjacent conveyor or rollers and sent off to the Quality Control Department for further examination and processing. In the Bottle Inspection Department is another category of employees known as "snap-up boys," who crate and move bottles and generally function as handymen, sweeping and cleaning and performing other unskilled miscellaneous tasks. They are paid at the hourly rate of $2.16.
Prior to 1956, the company employed only male selector-packers. In that year, however, the shortage of available men in the Millville area forced the company to employ for the first time female selector-packers. On the insistence of the Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, Local 219, with which the company had a collective bargaining agreement, there was, in the language of the district court, "carved out of the total job of selector-packer . . . a new role of female selector-packer." This new classification was written into the collective bargaining agreement, and pursuant to it female selector-packers were not to lift bulky cartons or cartons weighing more than 35 pounds. At the union's insistence a provision was added to the collective bargaining agreement that no male selector-packer was to be replaced by a female selector-packer except to fill a vacancy resulting from retirement, resignation, or dismissal for just cause.
On its face the record presents the incongruity that because male selector-packers spend a relatively small portion of their time doing the work of snap-up boys whose hourly rate of pay is $2.16, they are paid $2.355 per hour for their own work, while female selector-packers receive only $2.14. This immediately casts doubt on any contention that the difference in the work done by male and female selector-packers, which amounts substantially to what the snap-up boys do, is of itself enough to explain the difference in the rate of pay for male and female selector-packers on grounds other than sex.
The district court explored this difference in some detail. The court found that while male and female selector-packers perform substantially identical work at the ovens, the work of the male selector-packers is substantially different because they perform sixteen additional tasks. These consist of lifting packages weighing more than 35 pounds;*fn4 lifting cartons which, regardless of weight, are bulky or difficult to handle; stacking full cartons; tying stacks of cartons; moving wooden pallets fully loaded with stacks of cartons; moving and placing empty pallets for later use; operating hand trucks near the ovens; positioning and adjusting portable roller conveyors and packing stands holding empty cartons for filling; collecting dump trays and tubs of rejected glassware; sweeping and cleaning work areas near the ovens; fitting and attaching metal clips to glass containers at the ovens; unjamming overhead carton conveyors and automatic belts; occasionally reinspecting, repacking and restacking glassware already delivered to the premises of customers; locating glassware in the warehouse, at times involving climbing over palletized cartons; and voluntarily working, when necessary, in excess of ten hours per day or of 54 hours per week.*fn5 The district court also found that the training period for men was six months, whereas the training period for women was three months.*fn6
The district court pointed to evidence submitted by the company that the male selector-packers spent an average of approximately 18 percent of their total time on this work, which was forbidden to women. It made no finding, however, that this was a fact, nor did it make any finding as to what percentage of time was spent by male selector-packers either on the average or individually in performing this different work. Indeed, it made no finding that all male selector-packers performed this extra work, but only that the extra work when not performed by snap-up boys was done by male selector-packers. There is, therefore, no basis for an assumption that all male selector-packers performed any or all of these 16 additional tasks.
Even if there had been a finding that all the male selector-packers performed all of the 16 additional tasks and that these consumed a substantial amount of their time, there would still be lacking an adequate basis for the differential in wages paid to male and female selector-packers. For there would be no rational explanation why men who at times perform work paying two cents per hour more than their female counterparts should for that reason receive 21 1/2 cents per hour more than females for the work they do in common.
The district court, therefore, placed its conclusion on a factor of "flexibility." The company's job shop requires frequent shutdowns of the ovens when a customer's order is completed and before the run of a new order is begun. During such shutdowns the idled female selector-packers are assigned to what is known as the "Resort" area, where they inspect and pack glassware rejected by the Quality Control Inspection Department. Idled male selector-packers are similarly ...