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July 30, 1982

Robert LYON, Dennis S. Lebofsky, H. Frank Thornton and Nicholas Macri
TEMPLE UNIVERSITY OF the COMMONWEALTH SYSTEM OF HIGHER EDUCATION, Marvin Wachman, in his official capacity as President of Temple University and American Association of University Professors, Temple University Chapter

The opinion of the court was delivered by: SHAPIRO


Plaintiffs, male professors at Temple University ("Temple"), allege that Temple, university president Marvin Wachman, *fn1" and the American Association of University Professors ("AAUP") have jointly and willfully discriminated against them on the basis of sex by paying them lower salaries than those paid to female professors of less or equal educational qualifications and/or experience. Plaintiffs originally charged defendants with violations of the Equal Pay Act of 1963, 29 U.S.C. § 206(d); the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1983, 1985 and 1986; the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq.; and the Pennsylvania Equal Rights Amendment, Article I, § 28 of the Pennsylvania Constitution. Plaintiff Robert Lyon also claimed a conspiracy among the defendants to inflict emotional distress upon him in violation of Pennsylvania law.

 On January 15, 1981, we dismissed the Equal Pay Act, § 1985(3) and § 1986 claims against the AAUP, 507 F. Supp. 471 (E.D.Pa.1981), because the Equal Pay Act does not create a private right of action against a union, and cannot be the basis for § 1985(3) or § 1986 claims. Defendants now move for summary judgment as to all remaining counts.

 Plaintiffs claim the implementation of Article III, Paragraph E, resulted in substantial discrepancies in salaries between plaintiffs and certain females in their departments; these women are alleged to be equally or less qualified or to have less experience than plaintiffs. For example, plaintiff Lyon alleges that he was hired at Temple in 1957 and has been a tenured professor since 1963 but as of September 1, 1978 he was earning approximately $ 3,200 less than a female in his department who was hired in 1967 and promoted to associate professor in 1971. Plaintiffs Lebofsky, Thornton and Macri have alleged similar discrepancies in salary when compared with females within their departments.


 A. The Equal Pay Act Claim

 The Equal Pay Act ("EPA") forbids wage inequality based on the sex of the employees. Enacted in 1963, it provides:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment 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 (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.

 29 U.S.C. § 206(d)(1).

 For the purpose of this motion, Temple concedes that, because of their sex, certain female employees receive higher salaries than their male plaintiff counterparts. Temple's Reply Brief at 4. The question is whether these wage inequities are justified as affirmative action permitted by United Steelworkers of America v. Weber, 443 U.S. 193, 99 S. Ct. 2721, 61 L. Ed. 2d 480 (1979). It is contended that seeming violations of the EPA are excused as necessary to remedy past discrimination against female professional employees.

 The Court held that Title VII does not ban race-conscious affirmative action plans per se. Reviewing the legislative history of the Act, it concluded that "Congress did not intend to limit traditional business freedom to such a degree as to prohibit all voluntary, race-conscious affirmative action." Id. at 207, 99 S. Ct. at 2729. Without defining the line between permissible and impermissible affirmative action, the court held the plan at issue lawful because it did not "unnecessarily trammel the interests of the white employees." Id. at 208, 99 S. Ct. at 2729.

 The holding in Weber as to Title VII is not equally applicable to the Equal Pay Act in view of the difference in language. Weber, of course, never referred to the EPA; the court chose to "emphasize at the outset the narrowness of our inquiry"-whether Title VII forbids employers and unions from agreeing to plans that accord racial preferences to compensate for past discrimination. Id. at 200, 99 S. Ct. at 2726. A comparison of Title VII and the EPA, and of the Kaiser-USWA plan and the Temple-AAUP plan, demonstrate why we cannot infer that the principles of Weber should be applied to these facts. *fn4"

 The stated purpose of Title VII is to "eliminate, through the utilization of formal and informal remedial procedures, discrimination in employment based on race, color, religion, or national origin." H.R.Rep. 914, 88th Cong., 1st Sess., at 26 (1963). The broad purpose of this title-elimination of discrimination with respect to all aspects of hiring, firing, and conditions and terms of employment-contrasts with the more narrow focus of the EPA. That Act seeks to eliminate economic and social evils caused by wage differentials based on sex. Public Law 88-38 (1963), 77 Stat. 56, § 2. While the Supreme Court has found that Title VII leaves an "area of discretion" to employers to adopt voluntary plans to remedy past discrimination, no need for such an area of discretion has been demonstrated here as yet. Temple has made no showing of need to discriminate against men in order to remedy any previous wage discrimination against female Temple professors. See Affidavit of Marvin Wachman, Dkt. Ent. No. 82, PP 4 and 5 and Exhibits A and B.

 This permanence of the salary differentials alleged also distinguishes this case from Weber. While the Kaiser affirmative action plan necessarily disadvantaged some employees, it was designed to do so only until the past discrimination was remedied. Weber, 443 U.S. at 208-209, 99 S. Ct. at 2729-30. For purposes of this motion, the Temple-AAUP plan results in ...

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