concurring and dissenting:
I agree with the majority that Hoppe is foreclosed on appeal from contesting the propriety of using an advisory jury since no objection to such procedure was entered below. I agree that the trial court did not improperly depend upon the findings of the advisory jury. I also agree that the record supports the trial court’s conclusion that Hoppe was not denied promotion to the position of manager of the Department’s Jerome office on the basis of her gender (although the opposite conclusion would also be supported by the record). In fact, the majority’s discussion of the respective burdens of proof of parties in sex discrimination cases brought under I.C. § 67-5909 lays to rest that small doubt which I expressed concerning the discussion of that issue in Bowles v. Keating, 100 Idaho 808, 606 P.2d 458 (1980). I cannot agree, however, with the majority’s conclusion that Hoppe was not denied equal pay.1
I.
Initially, I am unsure of what the majority is affirming in the area of equal pay. The majority opinion states that “the trial court’s findings of fact that Hoppe did not perform work equivalent in nature to work being performed by male employees in higher pay grades is supported by substantial and competent evidence and hence is not ‘clearly erroneous.’ ” I can find no such finding of fact in the record. The trial court made several findings of fact in connection with Hoppe’s claims that she was denied promotions to specific positions because of her sex. The closest that the trial court came to making a finding regarding equal pay, however, was that “the evidence did not establish any one assignment which required a higher rating and which plaintiff continuously performed.”
This, of course, does not directly address the question of discrimination in respect to pay since, as the majority states, a “claimant ... is not required to show that the jobs performed were identical.” See Gunther v. County of Washington, 602 F.2d 882 (9th Cir. 1979), aff’d on other grounds, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981). In fact, a claimant is not required to “compare” the claimant’s job at all with any other job in order to make out a prima facie case of sex discrimination. Comparisons may be useful in showing that a claimant’s salary is lower than that which would be paid to a member of the opposite sex performing the same function, but they are not required. All a claimant needs to show is that he or she has been “discriminate[d] against ... because of, or on a basis of . . . sex ... with respect to compensation or the terms, conditions or privileges of employment ____” I.C. § 67-5909(1).
In County of Washington v. Gunther, 452 U.S. 161, 101 S.Ct. 2242, 2252, 68 L.Ed.2d 751 (1981), the Supreme Court expressly recognized that claims of gender-based wage discrimination were not dependent upon comparison with salaries paid to members of the opposite sex. The Court reasoned:
*40“Under petitioner’s reading of the Bennett Amendment, only those sex-based wage discrimination claims that satisfy the “equal work” standard of the Equal Pay Act could be brought under Title VII. In practical terms, this means that a woman who is discriminatorily underpaid could obtain no relief — no matter how egregious the discrimination might be — unless her employer also employed a man in an equal job in the same establishment, at a higher rate of pay. Thus, if an employer hired a woman for a unique position in the company and then admitted that her salary would have been higher had she been male, the woman would be unable to obtain legal redress under petitioner’s interpretation. Similarly, if an employer used a transparently sex-biased system for wage determination, women holding jobs not equal to those held by men would be denied the right to prove that the system is a pretext for discrimination.”
Speaking to a discrimination claim brought under the Equal Pay Act, 29 U.S.C. § 206, the Fifth Circuit Court of Appeals in Hodgson v. Brookhaven General Hospital, 436 F.2d 719, 724 (5th Cir. 1970) held that “[t]he controlling factor under the Equal Pay Act is job content — the actual duties that the respective employees are called upon to perform. Job descriptions prepared by the employer may or may not fairly describe job contents” While Hoppe’s claim was not prosecuted under the Equal Pay Act, I agree with the majority’s conclusion that decisions under the Equal Pay Act should apply to claims of discriminatory compensation brought under I.C. § 67-5909. I.C. § 67-5909 and Title VII are clearly broader than the Equal Pay Act, but the Equal Pay Act, and decisions thereunder, do provide useful guidance in recognizing discriminatory compensation plans. See Boyd v. Madison County Mutual Insurance Co., 653 F.2d 1173 (7th Cir. 1981). Employers may not shelter themselves under either I.C. § 67-5909, Title VII or the Equal Pay Act, 29 U.S.C. § 206, from liability for discrimination in compensation by artfully classifying positions or pay scales. By the same token, employers may not require women to perform duties above their pay categories without additional compensation if similarly situated men are not required to perform those duties or if men perform those duties but receive additional compensation.
“As Congress itself has indicated, a ‘broad approach’ to the definition of equal employment opportunity is essential to overcoming and undoing the effect of discrimination. S.Rep.No. 867, 88th Cong. 2d Sess., 12 (1964). We must therefore avoid interpretations of Title VII that deprive victims of discrimination of a remedy, without clear congressional mandate.” Gunther, supra, 101 S.Ct. at 2252.
The record shows that Hoppe performed a variety of duties — several of which were also performed by people in higher pay categories. The Employer Relations Representative (ERR) position, for example, constituted a substantial portion of the duties performed by Emil Omlid, whom Hoppe replaced as the ERR for the Twin Falls area. Omlid was responsible for placements and for ERR until 1971, when he also assumed responsibility for the veterans program. At this time he began training Hoppe for the ERR position and she took over that position in January of 1972, when Omlid became the “Veteran’s Employment Representative.” Contrary to the assertion by the majority, the record does not indicate “that Omlid’s primary duty was as the ‘Veteran’s Employment Representative.’ ” Rather, at the time that Omlid assumed the duties of Veteran’s Employment Representative and turned the ERR responsibilities over to Hoppe, he was the person responsible for employer relations. The record does not reflect how much of Omlid’s time at this point was devoted to employer relations and how much to his other duties. Omlid’s primary duty became that of Veteran’s Representative only after he turned the lion’s share of the ERR responsibility over to Hoppe. The majority correctly states that ERR “was shown to be a working title, not a job classification, and the record also *41show[s] that employer relations duties were performed by individuals in pay grades 6 through 12.” The majority is incorrect, however, in its conclusion that “substantial evidence supported the finding that the primary function performed by Omlid was substantially different than that performed by Hoppe.”
First, no such finding was made. In regard to the difference in classification (not pay or duties actually performed) between Hoppe and Omlid, the court found only that “Omlid was rated higher than plaintiff, not because he too had done some ERR work, but because he had been employed by the department since 1967 and carried a rating of Employment Consultant II.” 2 The trial court made no finding in respect to the relative amount of time Omlid spent on ERR duties and the record does not reveal this information. ■
Second, the record does reveal that, while many employees performed ERR functions, only one person in the office had primary responsibility for employer relations. For example, Omlid himself testified in regard to mandatory reports filled out after employer visits that “Betty was the one that made most of those reports.” A list of personnel that performed employer relations functions throughout the State, compiled by the Department of Employment itself and introduced into evidence below, reveals that Hoppe spent approximately 75% of her time engaged in employer relations activity. In no other state office on this list did a single employee spend such a large percentage of time engaged in employer relations, with the exception of the Boise office, where one employee spent 95% of his time engaged in employer relations. This employee, a male, was classified as a Manpower Consultant II, which falls in the grade 9 category under the Department’s own classification system — two grades above Hoppe’s grade.
The Department is able to correctly state that most employee’s were engaged to some extent in employer relations, but only because the Department’s definition of “employer relations” is so broad. According to the Department, whenever a Department employee would contact an employer to refer a potential employee or to inquire into openings, this constituted performance of an “employer relations” function. This, however, is a far cry from the job in which Hoppe was engaged. Hoppe made radio and television appearances, contacted employers for the general purpose of promoting the Department’s services, as opposed to discussing specific candidates for employment, collected and coordinated employer information obtained by other Department employees in contact with employers, and in addition occasionally took specific candidates to employers. The State printed business cards for Hoppe designating her as the ERR for the Twin Falls office, and she was apparently the only one who was given such cards.
In July 1972, in response to a federal directive, the State initiated an “Employer Relations Program.” This program, outlined in a 20 page “Employment Service Program Letter No. 438,” involved an extensive new system of forms, employer contacts and information distillation. It is undisputed that Hoppe had primary responsibility for implementing this program in the Twin Falls area, and that she performed duties in this regard far beyond those of other employees who occasionally engaged in an ERR function.
The advisory jury specifically found, in its answer to the court’s special interrogatory number 8, that “[Hoppe] w£ s performing duties above her [pay] grade level.” The trial court never disputed this finding because it did not specifically address the question of whether the compensation paid to Hoppe was lower than it would have been had she been a man performing the same functions.
I do not point out these facts because I believe they unequivocally compel a finding that Hoppe’s compensation was artificially low because of her sex. I point them out *42because they, along with the rest of the record, present enough of a case on the issue of equal pay to at least require findings, and the application of relevant law, by the trial court on that issue. No such findings or conclusions were made.3
I.R.C.P. 52(a) provides in part that:
“Findings by the court — Effect.—In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing interlocutory injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Requests for findings are not necessary for the purposes of review.”
Only last year we unanimously held, in Owen v. Boydstun, 102 Idaho 31, 36, 624 P.2d 413, 418, (1981), that “findings on issues before a trial court must necessarily be made by the court pursuant to Rule 52(a) before this Court may perform its appellate function of ‘ascertaining whether the evidence supports the findings of fact, and whether the findings of fact support the conclusions of law.’ ” See Morris v. Frandsen, 101 Idaho 778, 621 P.2d 394 (1980); Industrial Investment Corp. v. Rocca, 100 Idaho 228, 596 P.2d 100 (1979); Perry Plumbing Co. v. Schuler, 96 Idaho 494, 531 P.2d 584 (1975).
We also held in Owen that “it is the rule in Idaho that neither an objection to findings nor a request or motion for findings is a prerequisite to appellate review and such failure to bring the matter to the attention of the trial court does not waive the right to bring it up on appeal.” Owens, supra, 102 Idaho at 35-36, 624 P.2d at 417-18. Although Hoppe did not raise the issue of the absence of any findings or conclusions on the equal pay issue in her brief, she did raise and discuss the issue at oral arguments and the issue is therefore presented to this Court for review. See State v. Dennard, 102 Idaho 824, 642 P.2d 61 (Bakes, C. J., dissenting). Even if the issue had not been raised on appeal, I would hesitate to affirm a lower court decision when the basis for that decision was not set forth by the court below. For example, as I have attempted to demonstrate, the law in the area of equal pay is extremely complex, and the record herein contains substantial evidence that Hoppe, for the services she was performing, was underpaid. The advisory jury specifically found that Hoppe was performing duties above her pay grade level. While a contrary conclusion could also be drawn from the record, there is simply no way to determine whether the trial court correctly applied the law to the facts in arriving at its ultimate conclusion that “[a]ll of the discrimination shown by defendant was reasonable and based upon substantial justifications." Being somewhat uncertain what I would be affirming, if I so voted, I would remand for either a new trial or for specific findings of fact and conclusions of law in the area of equal pay, if the trial court should feel that it still has a sufficiently clear memory of the evidence presented to obviate the need for a new trial. Otherwise, a new trial is clearly in order, limited to the particular issue wherein it appears Hoppe should likely prevail. See Stecklein v. Montgomery, 98 Idaho 671, 570 P.2d 1359 (1977) (Bistline, J., specially concurring).
I dissent.
. As I explain infra, the term equal pay does not necessarily refer to claims based on comparisons between specific jobs. Under I.C. § 67-5909 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., whenever wages are lower than they would have been had the claimant been a member of the opposite sex, that constitutes prohibited discrimination “with respect to compensation or the terms, conditions or privileges of employment.” I.C. § 67-5909(1).
. This statement is somewhat circular — the fact that Omlid “was rated higher ..., because he ... carried [a higher rating]” does not explain the underlying basis for the classification.
. I have focused on Hoppe’s ERR responsibilities for purposes of demonstrating the inadequacy of the findings below. I also note that no findings were made on Hoppe’s claim that she was denied meritorious increases because of her sex. In this regard, I note that the state introduced evidence that meritorious increases were statistically neutral on a statewide basis, but that this does not necessarily rebut Hoppe’s claim of discrimination in the Twin Falls office. See Kouba v. Allstate Ins. Co., 523 F.Supp. 148 (E.D.Cal.1981) (Equal Pay Act’s emphasis on the gender of employees as a group does not preclude a particular woman from demonstrating that she, as contrasted with women employees as a group, was discriminated against in pay on the basis of sex).