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EEOC v. J.C. Penney Co.

United States Court of Appeals for the Sixth Circuit

January 22, 1987, Argued ; April 4, 1988, Decided ; April 4, 1988, Filed

No. 86-1139


 [*250]  BOGGS, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC") charges J.C. Penney Company ("Penney") with sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e  [**2]  et seq. The EEOC challenges the "head of household" provision of Penney's medical and dental insurance plan, which permits a Penney employee to elect coverage for his or her spouse only if the spouse earns less than the employee. The district court granted partial summary judgment to Penney, 632 F. Supp. 871 (1985), holding that the "head of household" requirement could be challenged only under subsection 703(a)(1)  [*251]  of Title VII rather than subsection (a)(2). 2 The court further held that disparate impact analysis could be used only in claims under subsection (a)(2), so that the EEOC had to proceed under a disparate treatment analysis and prove intentional discrimination to succeed in its claim under subsection (a)(1).

 [**3]  The trial proceeded under a disparate treatment analysis. The district court found that the "head of household" requirement did have a disparate impact on female employees, but that the EEOC had not proven a discriminatory motive in Penney's adoption of the requirement, and entered judgment for Penney. The EEOC appeals, arguing that the district court erred in holding that disparate impact analysis could not be applied to section 703(a)(1) claims. We hold that even if disparate impact analysis is applied to section 703(a)(1) claims of discrimination in fringe benefits, the "head of household" requirement in this case is a "factor other than sex" so that the resulting differential in compensation is authorized by the Bennett Amendment to Title VII, 42 U.S.C. § 2000e-2(h). Accordingly, we affirm the judgment of the district court.

Determining whether disparate impact analysis may be used under section 703(a)(1) as well as (a)(2) is a difficult and unsettled question. The Supreme Court has not had to rule on the issue. The major disparate impact cases, Griggs v. Duke Power Co., 401 U.S. 424, 28 L. Ed. 2d 158, 91 S. Ct. 849 (1971), [**4]  and Dothard v. Rawlinson, 433 U.S. 321, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977), do not differentiate between subsection (a)(1) and (a)(2), but speak only of violations of Title VII or the Act. The Court stated in International Brotherhood of Teamsters v. United States, 431 U.S. 324 n.15, 335-36, 52 L. Ed. 2d 396, 97 S. Ct. 1843 (1977), that "either theory may, of course, be applied to a particular set of facts." Since then, the Court has clearly held that section 703(a)(2) claims may be pursued on a disparate impact theory, Connecticut v. Teal, 457 U.S. 440, 448, 73 L. Ed. 2d 130, 102 S. Ct. 2525 (1982), but has specifically reserved the question as to whether disparate impact analysis may be used under section 703(a)(1).  Nashville Gas Co. v. Satty, 434 U.S. 136, 144, 54 L. Ed. 2d 356, 98 S. Ct. 347 (1977).

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843 F.2d 249 *; 1988 U.S. App. LEXIS 4098 **; 46 Fair Empl. Prac. Cas. (BNA) 815; 46 Empl. Prac. Dec. (CCH) P37,897; 9 Employee Benefits Cas. (BNA) 1729

Equal Employment Opportunity Commission, Plaintiff-Appellant, v. J.C. Penney Co., Inc., Defendant-Appellee

Subsequent History:  [**1]   Petition for Rehearing and Petition for Rehearing En Banc Denied June 22, 1988.

Prior History: On Appeal from the United States District Court for the Eastern District of Michigan.


employees, sex, disparate impact, spouse, head of household, coverage, satisfaction, benefits, legitimate business reason, fringe benefit, differential, district court, discriminatory, spousal, female, discrimination claim, Bennett Amendment, Pay Act, maximizing, package, earn

Labor & Employment Law, Discrimination, Title VII Discrimination, General Overview, Disparate Impact, Scope & Definitions, Disparate Treatment, Actionable Discrimination, Equal Pay, Equal Pay Act, Employment Practices, Disparate Compensation