Female Workers’ State Pay Suit Could Cost $1 Billion

To Patricia Hubbard and some other female employees of the state of California, it seems unfair that as typists, stenographers and food service workers, they are paid less than their male colleagues earn as laborers, groundskeepers and highway equipment cleaners.

“I was amazed at the difference in pay,” Hubbard said. “Some of these men didn’t even have a high school education, but they still made a lot more.”

Hubbard and her fellow female workers, backed by employee unions, brought a sweeping, class-action lawsuit in federal court here against the state, charging that they are the victims of a discriminatory pay system dating back over 50 years.

The judge in the case has surprised state lawyers by allowing the plaintiffs to go forward with what is believed to be the most far-reaching job discrimination action ever brought against a public employer.

U.S. District Judge Marilyn Hall Patel rejected contentions by the state that there was neither a legal basis nor sufficient evidence of discrimination to warrant further proceedings. A trial, which could take months, is tentatively set for early next year.

Should the plaintiffs win, up to 200,000 current and former state employees stand to share in back pay, interest and wage increases that could cost the taxpayers an estimated $1 billion, according to attorneys in the case.

“Our evidence will show that men prosper significantly more than women and have greater career opportunities in state service,” said Melvin K. Dayley, counsel for the California State Employees’ Assn. and one of the lawyers for the plaintiffs. “The comparisons are really quite striking.”

Attorneys for the state argue that the wages at issue are primarily based on prevailing market pay scales and collective bargaining agreements--and that there has been no intent to discriminate against female workers.

The defense attorneys find it ironic that the state, which for decades has made efforts to curb bias in its work force, should now be defending itself against claims that it is discriminatory in its policies on pay, promotion and recruitment.

“It’s amazing, really,” said Deputy Atty. Gen. Janice R. Brown. “They say that we began discriminating in 1934 and have continued ever since then, and that everything we tried to do was just another way of segregating our work force. . . . That kind of stuns you when you see what progress has been made.”

The case arose after Hubbard and other women state employees filed complaints in 1984 charging that as workers in female-dominated occupations they are paid substantially lower wages than those in male-dominated jobs requiring “comparable skill, effort and responsibility.”

For example, Hubbard, now 50 and retiring after more than 15 years with the state, said that as a typist in a category that is 95% female she could earn no more than $1,214 a month, while a laborer in a category 98% male could earn up to $1,462 a month.

Other complaints cited disparities between stenographers’ pay of $1,283 a month and groundskeepers’ wages of $1,596 a month; a registered nurse’s pay of $2,051 monthly against $2,197 for an agricultural chemist, and a food service worker’s salary of $1,177 compared to $1,462 for a highway equipment cleaner.

A year later, in 1985, a suit was filed by the California State Employees’ Assn., the Service Employees International Union, Hubbard and others on behalf of workers in female-dominated jobs, charging the state with violating federal anti-discrimination law.

Sweeping Order Sought

The plaintiffs have asked for a court order barring the state from further discrimination and for compensation for employees in female-dominated jobs who have worked for the state since 1977, the cutoff year for claims under the statute of limitations.

The plaintiffs claim that the state’s policies are rooted in biased practices dating back to the 1930s. To support their allegations, they unearthed a memorandum compiled for state personnel officials in 1934 saying that salary schedules were based on such factors as market rates, the cost of living and “the age, sex and standard of living” of jobholders.

The state concluded that the cost of living would be more for males than females and took that into account in its pay policies, according to the suit.

Over the decades, the suit says, the state has continued to practice sex discrimination in salaries, recruitment, promotions and other employment policies and procedures, steering women away from better-paying and traditionally male jobs.

As a result, the plaintiffs say, women employees of the state are earning only 75% of what men are receiving--an improvement of only 1% in five decades.

Measuring the disparity another way, they also cite a study of the pay levels of more than 50,000 state employees showing that males earn $557,000 more a month than females.

Personal Encounters

The plaintiffs also are prepared to offer reports of their individual encounters with allegedly discriminatory practices.

Hubbard, in an interview, said she can recall instances while working in the Department of Motor Vehicles in which she was told that a job she sought would be better handled by a man.

She said she also had been told that women in lower-paid jobs were assigned to perform tasks ordinarily reserved for higher-paid males. “ ‘The DMV will save money and so will the state,’ is the way it was put to me,” she said.

The state’s lawyers reply that the plaintiff’s statistical studies of pay disparities are faulty and that the anecdotal allegations of discrimination are insufficient to show a general policy of bias.

Contrary to the plaintiffs’ claims, the state has led the way in affirmative action, attorneys for the state contend, placing more and more females in higher-paying jobs and resulting in an increase in the average salary of female employees of 32% in a four-year period after 1981.

Women employees, currently comprising 45% of the state’s 125,000-member work force, hold 39% of its professional positions, 61% of its sub-professional technical jobs and 56% of its administrative staff positions, the state says in legal papers. And while their pay may be only 75% of what men are receiving, that is still substantially higher than the national average of 66%, the state says.

Special Pay Raises

The state goes on to note that female-dominated occupations such as nurses, librarians and clerical workers got special pay raises beyond an overall 8% increase given all employees in 1984.

Turning to the legal issues in the case, the state says that the plaintiffs’ allegations of sex discrimination amount to a “comparable-worth” claim that the courts have rejected in previous job-bias actions.

Under that hotly debated theory, persons in different but arguably “comparable” jobs--such as typists and laborers--are entitled to the same pay, regardless of prevailing wage rates.

California’s lawyers point to a widely followed case in the state of Washington, where state employees contended that the state’s practice of setting wages based on market rates created sex-based disparities between jobs of comparable worth.

A federal judge in Tacoma upheld the claim in 1983, opening the way for about 15,000 employees to collect what was variously estimated as from $400 million to $1 billion.

But two years later, the U.S. 9th Circuit Court of Appeals overturned the decision, finding that the state could not be held responsible for disparities resulting from reliance on market rates. Later, the employees reached a settlement with Washington officials that is expected to provide up to $482 million for workers in female-dominated jobs.

State’s Position

In the California case, state attorneys contend that this state’s pay system, like Washington’s, is based on prevailing rates, along with a collective bargaining process that began in 1981. For those reasons, the state says, it should not be held liable for disparities between female-dominated occupations and male-dominated occupations.

The plaintiffs’ attorneys counter that the state’s system actually is only partly based on prevailing rates and that evidence of discrimination goes beyond “comparable worth” to a wide range of employment policies that have channeled women into lesser-paying jobs.

Judge Patel, a one-time legal counsel for the National Organization for Women appointed to the bench in 1980 by President Jimmy Carter, in May refused to grant the state’s motion for a summary judgment in its favor. The judge cited evidence the plaintiffs are offering as an indication that the state, in setting pay scales, had considered other, sex-based factors besides the prevailing wage rate.

State attorneys may ask the federal appeals court in San Francisco to review Patel’s denial of their motion. But such intervention by an appellate court is rare and, at this point, the complex case is headed for a long and arduous trial.

“I’m fully aware of what I’m biting off,” the judge remarked as she ruled against the state. “This case may involve an extraordinary amount of time.”