Appeal from a judgment entered after a bench trial in the Southern District of New York, Richard Owen, District Judge,
Moore, Oakes and Timbers, Circuit Judges. Oakes, Circuit Judge, dissenting.
On this appeal from a judgment entered after a bench trial in the Southern District of New York, Richard Owen, District Judge, 407 F. Supp. 1370, the essential question presented is whether the work performed respectively by the heavy and light cleaners employed by Columbia University is "equal" within the meaning of the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1) (1970)*fn1 (the Act). We agree with the district court that the work is not equal. We affirm.*fn2
The Equal Pay Act prohibits an employer from discriminating "between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . ." See note 1 supra.
Invoking the enforcement provisions of the Fair Labor Standards Act,*fn3 the Secretary of Labor commenced the instant action against Columbia University and its president (Columbia) on March 11, 1974. The action sought to enjoin Columbia from discriminating against its female light cleaners, allegedly on the basis of sex in violation of the Equal Pay Act, by paying them at a lower hourly rate than that paid to its male heavy cleaners. The action also sought an injunction against further violations and an award of back pay.
At a 15 day bench trial during September and November 1974, the parties, focusing upon the statute's "equal . . . effort" criterion, produced extensive evidence on the physical requirements of the heavy and light cleaning positions. The crux of Judge Owen's finding of fact on this critical issue is set forth in his opinion dated February 11, 1976 as follows:
"The jobs of heavy cleaner and light cleaner are different. Going beyond the job descriptions, from the extensive testimony adduced before me at the trial, it is clear that the job of heavy cleaner involves greater effort than that of light cleaner." 407 F. Supp. at 1374-75.
Accordingly, the judge held that the Secretary had failed to sustain the burden of proving that the heavy and light cleaners perform equal work within the meaning of the Act. From the judgment dismissing the action, the Secretary has taken the instant appeal.*fn4
The facts are not in dispute. To the extent necessary to an understanding of our rulings on the issues of law presented, we summarize the controlling facts, including the essential findings of the district court which we accept pursuant to Fed. R. Civ. P. 52(a).
For more than 30 years Columbia has divided the duties of its custodial force into "heavy" and "light" categories. At the time of trial it employed 160 heavy cleaners (designated "janitors" prior to 1972), 4 of whom were female, and 111 light cleaners (designated "maids" prior to 1972), all of whom were female. Since 1972 all heavy cleaning positions have been open to applicants of both sexes.*fn5 No male ever has applied for the position of light cleaner. The light cleaners always have been paid less than the heavy cleaners. The differential was 45 cents an hour at the time of trial.
Columbia assigns approximately 80% of the light cleaners to its academic buildings and the remainder to its residence halls. Each cleaner in the group assigned to the academic buildings has daily responsibility for between 1 and 5 floors, depending on the size of the building and the functions of the particular rooms included in the assignment. The functions are those one would expect at any university, including classrooms, offices, library stacks, and the like. The light cleaners dust mop or vacuum the floors of the rooms and some of the corridors; dust, polish, or dampcloth the furniture, fixtures, baseboards and windowsills; and remove small spots from the walls, floors and doors. They also empty wastebaskets and ashtrays into trashbags. These are deposited at the elevator on each floor where they are picked up by heavy cleaners. In performing their work the light cleaners use dust mops, carpet sweepers, household vacuum cleaners, toy brooms, rags, sponges and 14 quart buckets. Some of the light cleaners transport this equipment in wheeled carts which weigh 60 pounds unloaded. The equipment itself, including a vacuum cleaner, creates a 21 pound load, to which a full trash bag adds an indeterminate amount of weight up to 30 pounds.
The light cleaners assigned to the residence halls perform the same functions as those performed in the academic buildings. Each day they clean the common rooms and offices on the ground floors, and the corridors and lounges on the residential floors. Students' rooms are cleaned on a special assignment basis when unoccupied during the summer.
The heavy cleaners may be grouped roughly into four categories: (1) those assigned to public corridors, lobbies, stairways and elevators; (2) those assigned to public lavatories; (3) those permanently assigned to special projects; and (4) those assigned to certain off-campus buildings.
The primary daily responsibility of group (1) is to wet mop the corridors, lobbies, stairways, elevators, classrooms and laboratories of the academic buildings. They also collect the bags of trash left on each floor by the light cleaners and transport them to dumping areas.
The heavy cleaners in group (2) clean daily the university's public lavatories. They dust and wet mop the floors, clean the toilets and sinks, empty the trash, and wash marks from the walls. Many of the heavy cleaners in this group assist the heavy cleaners in the first group with the job of removing trash. ...