dissenting.
I would affirm the Court of Appeals.
ORS 659.060(1) requires that the complaint filed by the Commissioner of Labor set forth the “specific charges” which the employer is required to answer. In this case, the complaint filed by the Commissioner of Labor contained this allegation:
“During the period from on or about July 15,1971 to on or about December 23,1976, the Complainant, a female person, *120performed equal work or work of a character comparable to the work performed by two male employes of Respondent, Police Officers Arata and Schuette, which work was performed under similar working conditions and required equal effort, skill and responsibility. However, the Respondent, because of the Complainant’s female sex, compensated the Complainant at a rate lower than that paid to Police Officers Arata and Schuette'. * * *”
As the majority points out, the facts are without substantial dispute. Potter was a PRC-II. According to the findings of the Commissioner of Labor, the Bureau of Police decided to staff East Precinct desk positions with one police officer and one PRC-II, rather than two police officers. This decision was based primarily upon “budgetary considerations.”
Most of the time, the police officer assigned to desk duty was a male. Some of the time, the police officer assigned to desk duty was a female. In some of the other precincts, all of the desk positions were filled with PRC-IIs.
The Commissioner found that Potter, a female, performed the same duties as did the police officers assigned to desk duty, at a lesser pay. She also found:
“Male persons were allowed to apply for appointment to Respondent’s PRC-II classification at all times material herein. Female persons were allowed to apply for appointment to Respondent’s police officer classification as of 1973.
“In October, 1974,492 of Respondent’s 508 police officers, or 97%, were male. In July, 1975, 480 of Respondent’s 497 police officers, or 97%, were male. In July, 1976, 450 of Respondent’s 474 police officers, or 95%, were male.
“In July, 1974, one of Respondent’s PRC-II’s or 4%, was male. In July, 1975, none of Respondent’s PRC-II’s were male. In July, 1976, none of Respondent’s PRC-II’s were male.”
The Commissioner also entered this finding:
“The net effect of the circumstances set out in the Findings of Fact above was that Complainant was discriminated against in terms of her compensation because of her female sex.
The Commissioner found a violation of ORS 659.030(l)(a) *121(now ORS 659.030(l)(b), as amended), which prohibits discrimination in compensation “because of the * * * sex * * * of any individual.”
I agree with the analysis of the Court of Appeals. Its opinion states:
“We find a complete absence of evidence in the record to support a finding that the city in any way brought about the de facto segregation by sex that existed and thus was, in the Commissioner’s words, ‘maintaining two sex-segregated job classifications.’ There is only the conclusory statement in the Commissioner’s ‘Ultimate Findings of Fact’ that ‘[t]he net effect of the circumstances set out in the Findings of Fact above was that claimant was discriminated against in terms of her compensation because of her female sex.’ Nothing in the record indicates that the city was any more responsible for the fact that, by and large, police officers were male and PRC-IIs were female than other possible explanations, e.g., the sex of applicants. Furthermore, nothing shows that the city engaged in discriminatory hiring when it filled PRC II positions, and the Commissioner made no such finding.
“The only other way that the city might have discriminated against claimant because of her sex would be if its decision to replace police officers with civilians was made not as an economy measure, but because the civilians were females. Nothing in the record or the Commissioner’s order indicates that such was the case, nor does anything indicate that any of the city officials who made the decision to replace officers with civilian employees were even aware that most PRC IIs were female. The Commissioner’s ‘Conclusion of Law’ on the issue was:
“ ‘6) Respondent committed an unlawful employment practice in violation of ORS 659.030(l)(a) by discriminating against Complainant in compensation because of Complainant’s female sex in the following particular:
“ ‘From July 15, 1971 to December 23, 1976, Respondent compensated Complainant at a rate lower than that paid its male employees Arata or Schuette even though Complainant performed substantially equal work, requiring substantially equal skill, effort and responsibility, under similar working conditions, to the work performed by Officers Arata and Schuette.’
“The Commissioner argues that the city failed ‘to establish that the city’s “merit system” was anything other than a pretext for discriminatory pay practices.’ The claimant bore *122the burden of proof on that issue. There is no evidence that the use by the city of a job classification to accomplish its aims was a pretext for job discrimination based on sex.
“Employment discrimination is rarely susceptible of direct proof, and proof of discrimination frequently depends on inferences drawn by the finder of fact from other evidence. Here, claimant produced no direct evidence of discrimination, and the city came forward with a non-discriminatory explanation for the pay disparity, i.e., its civil service classification system. The Commissioner has failed to make explicit her theory of discrimination. Finding a complete absence of evidence to support a finding that the city discriminated against claimant ‘because of her sex in violation of former ORS 659.030(1)(a), we reverse that portion of the Commissioner’s order that awarded damages for the pay disparity.” City of Portland v. Bureau of Labor and Ind., 61 Or App 182, 188, 656 P2d 353 (1982). (Emphasis in original.)
In its petition for review, the Department of Labor correctly states:
“There is no question in this case that claimant was discriminated against in compensation. The only issue is whether the discrimination was ‘because of sex’ within the meaning of ORS 659.030(1)(a) * *
I agree that Potter did not receive equal pay for equal work. She was discriminated against. But that does not prove discrimination “because of an individual’s * * * sex.” ORS 659.030(1).
The city has established that the assignment of Potter to this job was because of her classification as a PRC-II, not because of her sex. The Department’s and Potter’s rejoinder is that the city’s proof falls short because women occupied virtually all PRC-II positions and men occupied virtually all police officer positions.
There is no evidence that the city had a motive for discriminating against Potter as an individual, or because Potter was a woman. Her claims are based upon a “disparate impact” theory of recovery which, if even pleaded, has not been established. In this type of case, an employee must show that a facially neutral employment practice has a significantly discriminatory impact upon one protected by ORS 659.030. Compare Connecticut v. Teal, 457 US 440, 446, 102 S Ct 2525, *1232531, 73 L Ed 2d 130, 137 (1982); Moore v. Hughes Helicopters, Inc., 708 F2d 475, 481 (9th Cir 1983).
There is no evidence that the city paid Potter less than her coworkers because Potter was a woman. The only evidence to support Potter’s allegation that she was paid less because of her “female sex” (to use her words), is that any female PRC-II who performed this work would be discriminated against because 95 percent of the PRC-IIs were female while the police officers permanently assigned to the other desk were male. As the majority states and the Commissioner of Labor found, the decision to employ PRC-IIs was made to save money. If 50 percent of all PRC-IIs were men and all PRC-IIs were selected under facially neutral employment practices, it is clear that,, under the facts of this case, Potter would not have been discriminated against because of her sex.
Beyond question, Potter (and any other PRC-II, male or female, who worked as a precinct desk clerk) did not receive equal pay for equal work. The essence of Potter’s theory of recovery, though pleaded as a claim of “disparate treatment,”1 is a claim based upon a disparate impact theory. Her theory (and the theory upon which the Commissioner of Labor granted recovery for the earnings differential) is that the facially neutral employment practice — using PRC-IIs as desk clerks — had a significant discriminatory impact upon a protected group — women — because 95 percent of the PRCIIs were women.
*124The disparate impact theory, commonly invoked in hiring and promotion discrimination cases (as distinct from wage discrimination cases), does not require a showing of a specific discriminatory intent against an individual if the employer’s procedures operate against protected groups as “built-in headwinds.” Griggs v. Duke Power Co., 401 US 424, 432, 91 S Ct 849, 854, 28 L Ed 2d 158, 165 (1971). Disparate treatment cases focus on whether the individual or group has been subjected to intentional unlawful discrimination; disparate impact cases focus on whether facially neutral practices disproportionately affect members of a protected group. As stated, Potter’s claim for the wage differential was pleaded as and based upon a theory of intentional discrimination. In reality, her recovery is based upon a theory of unintentional discrimination (disparate impact).
In employment and promotion cases, the analysis relied upon by the Commissioner and the majority is common. For example, if it is shown that the pool from which new employees are drawn is 50 percent black and 50 percent white, hiring only blacks or only whites might establish a claim of disparate impact discrimination in hiring.2
Similarly, a 95/5 percent ratio between female and male PRC-IIs might be sufficient to establish an eligible male’s claim of discrimination in hiring if it were shown that the pool of eligible persons from which to draw were 50/50 *125male and female. But I cannot see why a claim of discrimination against Potter is made out in this case because she is female and 95 percent of PRC-IIs are female.
I confess to some difficulty in applying the disparate impact analysis in a case of alleged discrimination in wages (as compared with hiring and promotion cases). But that is what the majority and the Commissioner have done. Even if women comprised only five percent of the PRC-IIs, the evidence would still establish that Potter did not receive equal pay for equal work. But that would not make out a claim of sex discrimination.
On the reasoning adopted by the majority, whenever an employer draws employees from separate employee classifications to perform duties common to both classifications at different salaries, and the raw statistical profiles of those classifications indicate that members of a protected class are “over-represented” in one class and “under-represented” in the other in relation to the general population, the specter of employment discrimination has attached. This result will obtain regardless of the validity of the eligibility and selection process for each classification and regardless of the validity of the decision to have overlapping job functions between the classifications.
Without a more complete statistical analysis of the qualified applicant pool and eligibility requirements for each classification — more than exists in this case — a claim of disparate impact discrimination cannot be made out. To acknowledge, without more, that such tenuous and potentially misleading data is sufficient to find the city’s civil service classification system is a mere pretext for unlawful discrimination is not reasonable or necessary.
In short: Courts determine whether inferences can be drawn; triers of fact determine which permissible inference will be drawn. Although there is ample evidence that the city discriminated against Potter, unlike the majority, I see no facts from which an inference can be drawn that the city discriminated against Potter because she was a woman. There is no evidence of disparate treatment of Potter by the city. Nor *126is there sufficient evidence to establish a wage discrimination claim based upon a disparate impact theory.3
“* * * The ususal disparate treatment case is an individual case, and the focus of the contest is on the employer’s motivation for the different action taken, with the plaintiff attempting to prove intentional bias and the employer contending that its actions were based on a legitimate, nondiscriminatory reason. In evaluating this issue, the Supreme Court requires a tripartite order and allocation of proof. The plaintiff must establish a prima facie case; the employer must then come forward with evidence of a legitimate, nondiscriminatory reason for its actions; and the plaintiff must then prove that this supposed legitimate, nqn-discriminatory reason is in fact a pretext for intentional discrimination, with the burden of proof remaining at all times with the plaintiff.
“In contrast to the disparate treatment theory, proof of discrimination under the adverse impact theory focuses upon the effects of the alleged discriminatory practice. The consequences of employment policies rather than the employer’s motivation or intent is of paramount concern. The essence of the adverse impact theory is a showing that a policy or practice has a substantial adverse impact on a protected group, notwithstanding its equal application to all individuals. * * *” B. Schlei and P. Grossman, Employment Discrimination Law 1286 (2d ed 1983). (Footnotes omitted.)
“* * * But in advancing this commendable objective, Title VII jurisprudence has recognized two distinct methods of proof. In one set of cases — those involving direct proof of discriminatory intent — the plaintiff seeks to establish direct, intentional discrimination against him. In that type of case, the individual is at the forefront throughout the entire presentation of evidence. In disparate-impact cases, by contrast, the plaintiff seeks to carry his burden of proof by way of inference — by showing that an employer’s selection process results in the rejection of a disproportionate number of members of a protected group to which he belongs. From such a showing a fair inference then may be drawn that the rejected applicant, as a member of that disproportionately excluded group, was himself a victim of that process’ ‘ “built-in headwinds.” ’ Griggs, supra, at 432, 28 L Ed 2d 158, 91 S Ct 849. But this method of proof — which actually defines disparate-impact theory under Title VII — invites the plaintiff to prove discrimination by reference to the group rather than to the allegedly affected individual. There can be no violation of Title VII on the basis of disparate impact in the absence of disparate impact on a group.” Connecticut v. Teal, 457 US 440, 458, 102 S Ct 2525, 2537, 73 L Ed 2d 130, 144 (1982) (Powell, J., dissenting.) (Emphasis in original; footnotes omitted.)
The Commissioner’s regulations, adopted since this case was tried, suggest this conclusion. Her regulations distinguish between “intentional unlawful discrimination” (disparate treatment, OAR 839-05-010) and “unintentional discrimination” (disparate impact, OAR 839-05-020).