International Union of Electrical, Radio & Machine Workers v. Westinghouse Electric Corp.

VAN DUSEN, Circuit Judge,

dissenting.

I respectfully dissent. The majority opinion describes a case in which sex-based wage discrimination and liability under § 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l) (1976), will be established by evidence that an express policy of sex-based wage discrimination exists at Westinghouse’s Trenton facility.1 If I understood the case to involve only this issue, I would join in the court’s order.2 However, I understand the Union to be asking this court to adopt the position that a plaintiff can prove a claim under Title VII on a sex-based wage discrimination theory through comparisons of the worth of comparable work; that is, through comparisons of the value of different jobs to the wages paid for performing those jobs. Since I believe Congress adopted the Bennett Amendment, which is included in § 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), to prevent plaintiffs from proving sex-based wage discrimination claims under Title VII with evidence of the worth of comparable work, I dissent.

I.

As I understand the record in this case, the Union’s case can only be proved through *1109evidence of the worth of comparable work. The Union’s sole evidence of an express policy of discrimination at the Trenton facility is a statement from 1939. Although the Union acknowledges that there have been changes in the content of the various jobs and adjustments to the pay scales over the last 40 years,3 they argue that, with comparable work evidence, they can prove that the 1939 policy has been perpetuated. They state that “[j]ob comparisons would play only a limited role in plaintiff’s proof-establishing that discriminatory wage reductions for women first instituted by Westinghouse some forty years ago have not been eliminated with the passage of time, and that the present system still embodies intentional discrimination.”4 Although the Union downplays the importance of the comparable work evidence, it is the sole evidence available to them to demonstrate that the discrimination has continued. Thus, the evidence of comparable work will be the central focus of the Union’s case.5

Accordingly, the question presented by this case is whether a sex-based wage discrimination claim can be made out under Title VII on the basis of evidence of compa-*1110rabie work. Because I believe the Bennett Amendment attempts to incorporate into Title VII the Equal Pay Act’s rejection of the comparable work approach, I conclude the answer to the question is no.6

II.

The proper analysis of the question begins with an understanding of Congress’ position on comparable work in the Equal Pay Act. It is clear from the legislative history of the 1963 Equal Pay Act amendment to the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d), that Congress rejected the comparable work doctrine at that time. Angelo v. Bacharach Instrument Co., 555 F.2d 1164, 1173-76 (3d Cir. 1977). Congress did not want and “did not authorize the Secretary [of Labor] or the Courts to engage in wholesale reevaluation of any employer’s pay structure in order to enforce their own conceptions of economic worth.” Brennan v. Prince William Hospital Corp., 503 F.2d 282, 285 (4th Cir. 1974), cert. denied, 420 U.S. 972, 95 S.Ct. 1392, 43 L.Ed.2d 652 (1975). Congress rejected the doctrine at least in part due to the difficulty of ascertaining the worth of comparable work and the difficulty of ascertaining the impact on wages of the supply and demand for labor.7 The determination of proper wages when equal work did not exist was deemed better left to the market place than to a judicial fact finder.

One year later the same Congress passed the Civil Rights Act of 1964, a broad anti-discrimination statute prohibiting, inter alia, sex discrimination in employment. It is a general principle of statutory construction that legislation addressing the same issue be interpreted in pari materia if possible. The Supreme Court has held that under this canon, “a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum. ‘Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.’ ” Radzanower v. Touche, Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 1992, 48 L.Ed.2d 540 (1976), quoting Morton v. Mancari, 417 U.S. 535, 550-51, 94 S.Ct. 2474, 2482-83, 41 L.Ed.2d 290 (1974). The canon has elsewhere been defined to mean that:

“In terms of legislative intent, it is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter, wherefore it is held that in the absence of any express repeal or amendment therein, the new provision was enacted in accord with the legislative policy embodied in those prior statutes, and they all should be construed together.”

2A C. Sands, Sutherland Statutory Construction § 51.02 (4th ed. 1973) (footnotes omitted).

In my opinion, the Equal Pay Act and Title VII should be construed in pari mate-ria. They both deal with the same subject matter, sex-based wage discrimination. The Equal Pay Act deals solely with sex-based wage discrimination and was enacted after extensive legislative investigation of the issue. Title VII, by contrast, is general anti-discrimination legislation and was *1111passed without investigation of the specific problem of sex-based wage discrimination. In Title VII there is no express repeal of the. equal work requirement of the Equal Pay Act. Rather, the legislative history of Title VII shows an actual intent by the floor leaders of the legislation to avoid conflicts between the two statutes. In fact, Title VII expressly refers to the Equal Pay Act and attempts to harmonize the two statutes through the Bennett Amendment.

Further support for construing the statutes in pari materia is found in the EEOC’s contemporaneous agency regulation, 29 C.F.R. § 1604.7(a) (1965). It expressly stated that “Title VII requires that its provisions be harmonized with the Equal Pay Act (section 6(d) of the Fair Labor Standards Act of 1938, 29 U.S.C. § 206(d)) in order to avoid conflicting interpretations or requirements with respect to situations to which both statutes are applicable.” The current EEOC regulations also include a provision expressly addressing the relationship between Title VII and the Equal Pay Act, 29 C.F.R. § 1604.8 (1978). Moreover, every court of appeals which has addressed the question of the applicability of the in pari materia canon to the interpretation of these statutes, including a prior decision of the Third Circuit, has held that the canon does apply. Shultz v. Wheaton Glass Co., 421 F.2d 259, 266 (3d Cir.), cert. denied, 398 U.S. 905, 90 S.Ct. 1696, 26 L.Ed.2d 64 (1970); DiSalvo v. Chamber of Commerce, 568 F.2d 593, 596 (8th Cir. 1978); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 446 (D.C.Cir.1976); and Orr v. MacNeill & Sons, Inc., 511 F.2d 166, 170 (5th Cir.), cert. denied 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975). All of these factors lead me to conclude that the canon is applicable to the issue in this case and requires us to interpret Title VII in a fashion consistent with the Equal Pay Act’s rejection of the comparable work doctrine.

It is from this foundation that I begin my analysis of the Bennett Amendment. The Bennett Amendment provides as follows:

“It shall not be an unlawful employment practice under this title for any employer to differentiate upon the basis of sex in determining the amount of wages or compensation paid or to be paid employees of such employer, if such differentiation is authorized by the provisions of [the Equal Pay Act] Section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).”

This provision was added in response to Congressman Smith’s amendment, which included sex in the classifications protected under § 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(l), from employment discrimination.

As the majority discusses extensively, the dispute in interpreting the Bennett Amendment concerns the meaning of the word “authorized” in the phrase “authorized by the provisions of Section 6(d) of the Fair Labor Standards Act of 1938.” The majority notes that the word “authorized” is open to two interpretations. It may refer to the four exceptions expressed in the Equal Pay Act, as the majority concludes, or it may limit the prohibition against sex-based wage discrimination to situations where the Equal Pay Act is also violated, thus preventing the use of comparable work evidence. A review of the aids to interpretation leads me to the latter conclusion.

A.

Statutory construction begins with an analysis of the language of the statute. Lewis v. United States, 445 U.S. 55, 60, 100 S.Ct. 915, 918, 63 L.Ed.2d 198 (1980). The word “authorized” normally describes something that is affirmatively endorsed. However, as Westinghouse argues, an alternative definition is “to permit a thing to be done in the future.”8 I do not believe the common meaning of the word is so clear as to reveal conclusively the correct interpretation of the statute.

Moreover, the majority’s definition of “authorized” renders the Bennett Amendment largely redundant, a construction *1112which is to be avoided. F. A. A. v. Robertson, 422 U.S. 255, 261, 95 S.Ct. 2140, 2145, 45 L.Ed.2d 164 (1975). Section 703(h) of Title VII, § 2000e-2(h), contains two sentences. The Bennett Amendment is the second sentence. The first sentence explicitly provides that “it shall not be an unlawful employment practice for an employer to apply different standards of compensation . pursuant to a bona fide seniority or merit system or a system which measures earning by quantity or quality of production . . . .” Nonetheless, the majority views the Bennett Amendment as solely incorporating the following provision under the Equal Pay Act: “[n]o employer . shall discriminate . . [on the basis of wages] . . . 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 . .” In light of the first sentence of § 703(h), the majority’s interpretation makes the Bennett Amendment surplusage. Based on these factors, I believe the statutory language itself is inconclusive.

B.

The second aid to interpretation is the legislative history. Two days after Congressman Smith’s amendment to Title VII including sex as a protected classification was adopted, the bill passed the House. The bill bypassed the Senate committee system and was presented to the full Senate for initial consideration. The first discussion of the issue of discrimination in compensation based on sex was presented , on April 4, 1964, by Senator Clark, one of the bill’s floor managers, in response to questions raised by Senator Dirksen. Senator Clark posed the following question and answer:

“Objection: The sex antidiscrimination provisions of the bill duplicate the coverage of the Equal Pay Act of 1963. But more than this, they extend far beyond the scope and coverage of the Equal Pay Act. They do not include the limitations in that act with respect to equal work on jobs requiring equal skills in the same establishments, and thus, cut across different jobs.
“Answer: The Equal Pay Act is a part of the wage hour law, with different coverage and with numerous exemptions unlike title VII. Furthermore, under title VII, jobs can no longer be classified as to sex, except where there is a rational basis for discrimination on the ground of bona fide occupational qualification. The standards in the Equal Pay Act for determining discrimination as to wages, of course, are applicable to the comparable situation under title VII.”

110 Cong.Reg. 7217 (1964) (emphasis added). As I read the emphasized portions of the question and answer, they demonstrate an intent to preserve the Equal Pay Act’s requirement that proof of equal work be a prerequisite to a sex-based wage discrimination claim under Title VII.

Subsequently, on June 12, 1964, the Bennett Amendment was introduced in the Senate. The colloquy at the time of introduction and adoption is somewhat ambiguous.9 Senator Bennett summarized the import of his amendment by saying:

“Now, when the civil rights bill is under consideration, in which the word ‘sex’ has been inserted in many places, I do not believe sufficient attention may have been paid to possible conflict between the wholesale insertion of the word ‘sex’ in the bill and in the Equal Pay Act.
“The purpose of my amendment is to provide that in the event of conflicts, the provisions of the Equal Pay Act shall not be nullified.”

110 Cong.Rec. 13647 (1964). This statement is open to different interpretations because Senator Bennett did not specify the provisions of the Equal Pay Act to which he was referring. I believe, however, the most log*1113ical interpretation of the statement is that Senator Bennett was referring to the equal work provisions of the Equal Pay Act.10

The Senate’s amendment was then sent to the House for approval. In the House Congressman Celler, floor leader of the bill, explained that the Bennett Amendment “provides that compliance with the Fair Labor Standards Act as amended satisfies the requirements of the title [Title VII] banning discrimination because of sex.” 110 Cong.Rec. 15896 (1964). As the majority notes, this statement also is open to varying interpretations. Again, I believe that the most logical interpretation of this remark is that complying with the Equal Pay Act would preclude liability under Title VII for all sex-based wage discrimination claims. The House adopted the provision and the bill was eventually enacted into law.

One year later, in 1965, Senator Bennett submitted a memorandum to be published in the Congressional Record clarifying the meaning of his amendment. The final words of the memorandum are that “[s]imply stated, the amendment means that discrimination in compensation on account of sex does not violate Title VII unless it also violates the Equal Pay Act.” Ill Cong.Rec. 13359 (1965).11 As the majority notes, this statement explicitly supports Westinghouse’s view. Although I am aware of the danger of relying on legislative history which is presented after passage of a law, the Supreme Court cases do not dismiss such history as irrelevant. Haynes v. United States, 390 U.S. 85, 87 n.4, 88 S.Ct. 722, 725 n.4, 19 L.Ed.2d 923 (1968); Galvan v. Press, 347 U.S. 522, 526-27, 74 S.Ct. 737, 740, 98 L.Ed. 911 (1954); and Sioux Tribe v. United States, 316 U.S. 317, 329-30, 62 S.Ct. 1095, 1100-01, 86 L.Ed. 1501 (1942). When the author of a piece of legislation, a short time after its passage, makes a clarifying statement which is not inconsistent with the prior, ambiguous legislative history, I believe the statement should be given weight.12 In this case it lends support to Westinghouse’s interpretation. In sum, when considered in full, I believe the legislative history supports Westinghouse’s view.

C.

The third aid to interpretation is the administrative interpretation of the statute by the Equal Employment Opportunity Commission (EEOC), the regulatory body charged with enforcing the Civil Rights Act. The situation before us parallels that presented to the Supreme Court in General Electric Co. v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 411, 50 L.Ed.2d 343 (1976). In Gilbert the Supreme Court discounted the weight to be given EEOC’s 1972 Title VII regulations addressing pregnancy benefits, because they were inconsistent with EEOC’s 1965 regulations on the issue. In this case the EEOC also amended its regulations in 1972. At that time the EEOC omitted the express requirement of proof of equal work articulated in the 1965 regulation concerning the Bennett Amendment.13 The current regulation is silent concerning the equal pay requirement, and thus sheds *1114little light on the issue presented by this case.14 Despite this, recent EEOC rulings and the amicus brief filed in this court demonstrate that the EEOC currently supports the Union’s position that the Bennett Amendment does not incorporate the equal work requirement into Title VII. The prior regulation, however, clearly supported Westinghouse’s position. The 1965 regula-' tion stated in part that, “the Commission interprets section 703(h) to mean that the standards of ‘equal pay for equal work’ set forth in the Equal Pay Act for determining what is unlawful discrimination in compensation are applicable to Title VII.” 29 C.F.R. § 1604.7(a) (1965). This regulation shows that in 1965 the EEOC believed that the Bennett Amendment incorporated the equal work requirement into Title VII. • Although the recent rulings may stand as some authority for the Union’s position', in light of Gilbert, at 143, 97 S.Ct. at 411, I believe their weight is substantially reduced, and that this 1965 regulation should be considered.

D.

The case law is the last aid to interpretation. It ha,s been reviewed extensively by both the majority and the district court, International Union of Electrical Workers v. Westinghouse Electric Co., 19 F.E.P. Cases 450 (D.N.J.1979). Their reviews demonstrate that there is a conflict between the circuits on the issue currently in controversy. Until the decision in Gunther v. County of Washington, 602 F.2d 882 (9th Cir. 1979), aff’d upon petition for rehearing, 623 F.2d 1303 (9th Cir. 1980), no court of appeals had held that a Title VII claim of sex-based wage discrimination could be made out without proof of equal work. The opposite position had uniformly been taken. Lemons v. Denver, 620 F.2d 228 (10th Cir. 1980); Orr v. MacNeill & Sons, Inc., 511 F.2d 166, 171 (5th Cir.), cert. denied, 423 U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975); Ammons v. Zia Co., 448 F.2d 117, 120 (10th Cir. 1971) (Aldisert, J., sitting by designation); and Keyes v. Lenoir Rhyme College, 15 F.E.P. Cases 914 (W.D.N.C.1976), aff’d, 552 F.2d 579 (4th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). Although the Gunther opinion treats the problem in more detail than the other cases, it fails to discuss the application of the in pari mate-ria canon of statutory construction to the issue. This failure undermines the force of the Ninth Circuit’s analysis. In light of this review, I consider the case law another factor in support of Westinghouse’s interpretation.

In sum, I believe that when all the aids to interpretation are considered and when the canon of in pari materia is given proper weight, Westinghouse’s interpretation of the Bennett Amendment must prevail.15

III.

In conclusion, I note that read together, Title VII and the Equal Pay Act provide a balanced approach to resolving sex-based wage discrimination claims. Title VII guarantees that qualified female employees will have access to all jobs, and the Equal Pay Act assures that men and women performing the same work will be paid equally. This approach provides a mechanism for eliminating sex-based wage discrimination, while, at the same time, assuring that the *1115courts and federal agencies will not become entangled in adjudicating the wage rates to be paid for dissimilar jobs-a process in which they have little expertise. The majority’s opinion rejects this balanced approach and will allow claims based on the valuation of comparable work. Although the majority’s opinion is purportedly limited to cases involving express statements of discrimination, its analysis is not so limited. In order to find a sex-based wage discrimination cause of action under Title VII where one does not exist under the Equal Pay Act, the majority has interpreted the Bennett Amendment to refer only to the four exceptions in the Equal Pay Act and, by not following the canon of in pari mate-ría, has rejected the applicability of the policies of the Equal Pay Act to Title VII. Having disposed of both of these limitations on the scope of Title VII, this court has no basis under which to exclude evidence of the worth of comparable work in a Title VII sex-based wage discrimination case.16 I do not believe Congress intended to overrule the equal work policy of the Equal Pay Act in adopting Title VII, and accordingly I dissent.17 I would affirm the district court’s order.

. The majority’s language also describing plaintiffs’ claim as a § 703(a)(2), § 2000e-2(a)(2), “classification” case is inaccurate. The plaintiff’s complaint includes five counts. Each count alleges a § 703(a)(1), § 2000e-2(a)(l), compensation violation. A § 703(a)(2) classification violation is nowhere mentioned in .the plaintiffs’ papers (8a-33a).

. The majority’s belief that Title VII must be read more broadly than the Equal Pay Act in order that certain sex-based wage discrimination not go unremedied is open to question. The Equal Pay Act states:

“No employer . . . shall discriminate . 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 . . . .”

The majority implies that an employer, who explicitly states that he is paying a group of his female employees less than he would if they were males, is not liable under the Equal Pay Act so long as no male employees performing substantially equivalent work exist. I believe that the Equal Pay Act does prohibit such sex-based wage discrimination. It is not necessary that every Equal Pay Act violation be established through proof that members of the opposite sex are currently performing equal work for greater pay. Although the typical Equal Pay case involves a claim that men and women are working contemporaneously at the same job for disparate compensation, the courts have also found Equal Pay violations by looking to the wages paid the predecessors or successors of plaintiffs. Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61 (5th Cir. 1980) (violation of Equal Pay Act and Title VII established by comparison with wage of predecessor and statements of intent to engage in sex-based wage discrimination), and DiSalvo v. Chamber of Commerce, 568 F.2d 593 (8th Cir. 1978) (violation of Equal Pay Act and Title VII established by comparison with wage of successor). I interpret an employer’s statement, “if my female employees were males, I would pay them more,” as an admission that men performing equal work, with the same qualifications, in the same working conditions, would be paid more than the current female employees. This situation is covered by the Equal Pay Act. The hypothetical males referred to by the employer suffice as the better paid employees of the opposite sex required by the statute. To require the female employees to wait until better paid male successors are in fact hired by the employer before bringing a claim would be manifestly unjust. I am confident that Congress did not intend such overt discrimination to go unremedied by the Equal Pay Act. I believe that the majority’s reliance on the inability of the Equal Pay Act to accommodate this situation is unjustified.

The only case which I have found addressing this question is Rinkel v. Assoc. Pipeline Contractors, 17 FEP Cases 224, 226 (D.Alaska 1978). The district court in Rinkel concluded that in order to establish liability under the Equal Pay Act it was necessary that a member of the opposite sex actually perform equal work, despite explicit statements of intent to discriminate in wages on the basis of sex by the employer. I do not believe the court adequately considered the policies of the Equal Pay Act in reaching this conclusion and was in error.

. Appellants’ Reply Brief at 6.

. The Union explained , its proposed method of proof and the importance of comparable work evidence in response to the defendant’s interrogatories, as follows:

“The low rates for all female jobs-including the few classified above Labor Grade 3-are not justified by the nature and content of the jobs, but are solely the result of sex discrimination. Plaintiffs will establish this fact by expert testimony after further discovery and investigation, and it is not possible to describe at this point the comparisons which plaintiffs will make at trial between various jobs. However, examples of job comparisons which plaintiffs would make on the basis of their present knowledge are contained in the answers to Interrogatories Nos. 11-16."

(69a, emphasis added.)

An example of the job comparisons to be made is set out in answer to Interrogatory No. 12.

“[Ojn the basis of their present knowledge, plaintiffs would compare the Mount Machine Operator and the Janitor jobs in the following terms relevant to their claim that the job of Mount Machine Operator is discriminatorily underpaid:
“A Mount Machine Operator must work at a fast pace feeding flares, coils, wires and exhaust tubing into her machine. This demands great skill and dexterity, especially the coil feeding. The operator must be able to work from a schedule sheet, must notify other personnel of type changes and the anticipated time of changeovers, must keep production records, must analyze and record shrinkage, and must take note of irregularities in the machine’s operation and in the materials she receives. The operator must clear jams and remove defective parts with tweezers, relight fires, and do other such maintenance functions. The job entails several other duties: traying the finished mounts, stamping and counting flimsies, cleaning machine parts, pushing bulb hampers to the .sealex position, dumping glass particles into a cullet box and pushing the box to the aisle and stocking it for the cullet collector to empty, repairing defective mounts, delivering trayed mounts to the sea-lex position, obtaining materials, sweeping the work area, etc. Much of this work is heavy; for example, the lifting of heavy boxes of flares and tubes, and the moving of even heavier cullet boxes and bulb hampers. The work is constant, and involves tension and pressure, since the operator must keep up with the machine and the plant’s production depends on the operator’s ability to keep the machine fed and running, and to identify problems in the operation of the machine as well as defects in the materials which go into the machine and the mounts which come out of it.
“In contrast, the Janitor job involves virtually no skill. Moreover, the janitors can work at a leisurely pace, and often have no duties to perform for substantial periods of time. And of course, the performance of the janitors does not have a direct effect on production, unlike the Mount Machine job. Furthermore, for the most part the janitor’s work is very light. Janitors have seldom been required to sweep the factory areas (except the warehouse janitor), because this work is done by the operators in the areas. Thus the sweeping done by janitor's is generally confined to offices, wash rooms, stairways, cafeteria, etc. The cleaning done by the janitors is of a light nature, requiring little exertion. The same is true of the janitors’ duties with respect to emptying cigarette containers, wastepaper baskets, etc. And equipment such as powered sweepers and automatic hand tracks minimize the effort required in the few areas where the work might otherwise be heavy.”

(75a-77a)

. Even if the majority’s perception of this case, that it raises only the question of whether sex-based wage discrimination can be proved by way of statements of intentional wage discrimination in the absence of an equal work violation, is correct, the majority’s analysis will permit sex-based wage discrimination claims to be brought solely on the basis of evidence of comparable work. By interpreting the Bennett Amendment to refer only to the four exceptions in the Equal Pay Act and by holding that Title VII need not be read in pari materia with the Equal Pay Act, the majority has necessarily decided that Title VII’s prohibition against sex discrimination in wages is not limited by the Equal Pay Act’s equal work requirement. Accordingly, we must confront the comparable work issue in this case.

. The difficulty of ascertaining the proper wage for a job by comparing it to the wage paid for dissimilar work has been well documented. See Christensen v. Iowa, 563 F.2d 353, 356 (8th Cir. 1977), and Lindsay, Equal Pay for Comparable Work: An Economic Analysis of a New Antidiscrimination Doctrine (1980), published by the Law and Economics Center of the University of Miami.

. Black’s Law Dictionary (4th ed. 1968) at 169.

. The text of the colloquy at the time of introduction and adoption is set forth at note 11 of the majority opinion.

. Senator Dirksen’s statement, which is relied on by the majority, is also ambiguous. Senator Dirksen said, “all that the pending amendment does is recognize those exceptions, that are carried in the basic act.” It is unclear what “the basic act” refers to. Moreover, it was Senator Dirksen who first raised the objection, answered by Senator Clark, that Title VII would reject the equal work requirement. These facts leave the majority’s interpretation open to question.

. The full text of the statement is set out in the majority opinion at note 12 at p. 1103.

. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 354 n. 39, 97 S.Ct. 1843, 1864 n. 39, 52 L.Ed.2d 396 (1977), is not to the contrary. It states in pertinent part:

“The views of members of a later Congress, concerning different sections of Title VII, enacted after this litigation was commenced, are entitled to little if any weight. It is the intent of the Congress that enacted § 703(h) in 1964, unmistakable in this case, that controls.”

. The full text of the two regulations is set forth in the majority opinion at notes 16 and 17 atpp. 1105-1106.

. The majority reads 29 C.F.R. § 1604.8(a) (1978) as eliminating the equal work requirement. I understand this subsection to address solely the question of which employees are covered under Title VII and the Equal Pay Act. Title VII protects some workers not protected by the Equal Pay Act. Section 1604.8(a) merely says that the Bennett Amendment does not serve to limit the coverage of Title VII to those employees covered by the Equal Pay Act.

. The majority holds that the in pari materia canon is inapplicable to the case at bar. I believe this view leads it to interpret the Bennett Amendment incorrectly. However, even if the majority’s limited interpretation of the Bennett Amendment is correct, I believe the in pari materia canon compels us to interpret Title VII to include an equal work requirement in sex-based wage discrimination claims, since the Congress in Title VII did not expressly reject the equal work requirement.

. As noted above in part I, I believe this is such a case.

. My analysis of the limitation of Title VII in the area of sex-based wage discrimination in no way implies that I am unsympathetic to the employment discrimination suffered by many women. While I view such discrimination as a deep-rooted social problem which can and should be remedied, I think the change must come from the legislature. My review of the legislative history convinces me that in passing the Civil Rights Act of 1964 the 88th Congress did not intend to subject employers to liability on claims based on the valuation of comparable work. In light of the still great disparities between the wages of men and women 16 years after the enactment of the Civil Rights Act, Congress may now wish to pass legislation allowing comparable work claims to be brought under Title VII.