American Federation of State, County, and Municipal Employees v. State of Washington [AFSCME] is the most significant sex-based wage discrimination case since the Supreme Court’s 1981 landmark decision, County of Washington v. Gunther. Gunther represented a victory for opponents of sex discrimination, for the Court’s ruling allows plaintiffs to allege employment discrimination under Title VII even where the jobs being compared are not “equal”. Relying on Gunther, the trial court in AFSCME found “overwhelming” evidence of sex discrimination in compensation throughout the Washington State employment system. The Court’s decision was based in part on the state’s failure to pay women the evaluated worth of their jobs under a study commissioned by the state. The court interpreted Title VII as covering a broad spectrum of discrimination claims, which could be proven by relying on both direct and indirect evidence. In AFSCME the Court outlined the broad types of evidence which would be considered relevant to proving wage discrimination claims. Under the court’s ruling, such evidence could include a showing that the employer failed to pay plaintiffs the full worth of their jobs under the employer’s own assessment of job worth. Since many employers have practiced discriminatory employment policies similar to those condemned by the court in AFSCME, the decision signifies an important step towards the goal of eliminating sex- and race-based wage discrimination.
Nevertheless, there remain three major obstacles to that goal. First, employers frequently attempt to sidestep wage discrimination issues by redefining those issues. Second, a number of irrelevant defenses are offered which upon close analysis cannot justify wage discrimination. Finally, although Title VII has been interpreted broadly in the past, so as to encompass cases involving wage differentials, the current administration under President Reagan has significantly narrowed the scope of Title VII by choosing not to litigate claims based on wage differentials. If the promises of AFSCME are to be realized, it will be essential to continue both private and public litigation under Title VII, notwithstanding the current administration’s failure to assume an active role in Title VII litigation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.