APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 74-1153)
Before SEITZ, Chief Judge, ALDISERT and GIBBONS, Circuit Judges
The Secretary of Labor appeals from a final order dismissing a suit for injunctive relief against violations of § 6(d)(1) of the Equal Pay Act of 1963. 29 U.S.C. § 206(d)(1).*fn1 The complaint alleges that the defendant Allegheny County Institution District (District), operator of the John J. Kane Hospital, has violated the act at that hospital by discriminating on the basis of sex in the wages paid to employees performing work which requires equal skill, effort and responsibility and which is performed under similar working conditions. Specifically, the complaint alleges pay discrimination between female beauticians and male barbers, who provided hair care for patients of the hospital. After a trial the district court ruled that the admitted wage differential was not a violation. The court assumed that the defendant, a political subdivision of the Commonwealth of Pennsylvania, was subject to the Act. The judgment appealed from was rendered prior to the Supreme Court's decision in National League of Cities et al v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976). On appeal the defendant urges as an additional ground for affirmance that under the tenth amendment it is exempt from the Equal Pay Act. We reverse.
If the district court was correct in finding that there was no Equal Pay Act violation we would be obliged to affirm on that ground and thereby avoid a decision on the constitutional law issue tendered on appeal by the defendant's reliance on the tenth amendment. Thus we consider the issue of statutory violation first.*fn2
Defendant employes three beauticians and three barbers to minister to the tonsorial and cosmetic needs of Kane Hospital's 700 male and 1300 female geriatric patients. The three barbers, all men, earn $165 a month more than the three beauticians, all women. The district court held that there was no violation of the Act because (a) the Secretary failed to prove that the work performed by the barbers and beauticians was equal, and (b) even assuming the Secretary proved that the work was equal the inequality of pay was authorized by 29 U.S.C. § 206(d)(1)(iv) as a differential based on a factor other than sex. Since the parties stipulated to the wage differential and to the similarity of working conditions, the two statutory issues which were tried were "equal work" and "factor other than sex."
The district court made a conclusion of law, designated as such, that "[the] work performed by the barbers is substantially different than the work performed by the beauticians... and each have different skills, duties, work performance and responsibilities, and each exerts unequal effort in the performance of their jobs." That conclusion of law must find support in the court's findings of fact, and they in turn in the record. The district court made findings on the following:
Women: "The female beauticians are engaged in basic hair care for female patients."
Men: "The barbers are engaged in basic hair care for the male patients."
Women: "All beauticians work from 7:30 a.m. to 3:30 p.m. Monday through Friday."
Men: "All the male barbers work from 8:00 a.m. to 4:00 p.m. ...