Justia Federal District Court Opinions

Northwest Airlines (NWA) appeals from a judgment of the District Court¹ declaring certain of its personnel policies violative of the Equal Pay Act of 1963² and Title VII of the Civil Rights Act of 19643 and granting injunctive and monetary relief. The principal practice in issue here is the payment to women employed as stewardesses of salaries lower than those paid to men serving as pursers for work found by the court to be substantially equal. Others are the provision to stewardesses of less desirable layover accommodations and allowances for maintenance of uniforms, and the imposition of weight restrictions upon stewardesses only. In varying respects and degrees NWA challenges findings of fact⁴ and conclusions of law5 on these matters, as well as the propriety of the remedial measures adopted.⁶

On careful review of the extensive record on appeal, we sustain the District Court's adjudications on all substantive questions of statutory infringement. We also uphold most but not all of the court's specifications on relief.⁷ Thus we affirm the judgment in part, vacate it in part and remand the case to the District Court for further proceedings.

Between 1927 and 1947, all cabin attendants employed on NWA's aircraft were women, whom NWA classified as "stewardesses."⁸ In 1947, when the company initiated international service, it established a new cabin-attendant position of "purser,"⁹ and for two decades thereafter adhered to an undeviating practice of restricting purser jobs to men alone.¹⁰ In implementation of this policy, NWA created another strictly all-male cabin-attendant classification "flight service attendant" to serve as a training and probationary position for future pursers.¹¹ NWA has maintained a combined seniority list for pursers and flight service attendants, on which seniority as pursers accrued to flight service attendants immediately upon assumption of their duties as such, and a separate seniority list for stewardesses.¹² From 1951 until 1967 flight service attendants had a contractual right to automatic promotion to purser vacancies in the order of their seniority.¹³

It was not until 1967, when a new collective bargaining agreement was negotiated, that stewardesses first became contractually eligible to apply for purser positions.¹⁴ During negotiations on the issue, NWA, for both the 1967 agreement and another in 1970, rejected an additional union proposal that stewardesses, like flight service attendants, be allowed to progress to purser slots according to seniority, stating that the company "prefers males and intends to have them."¹⁵ The company has also insisted upon the right of "selectivity" in choosing which stewardesses might become pursers, and has imposed other restrictions on stewardesses seeking purser vacancies which had not previously been laid on flight service attendants.¹⁶

Company policy had been to fill purser openings by hiring "men off the street" and training them for a short time, after which notices of purser vacancies would be posted.¹⁷ Following the 1967 collective bargaining agreement affording stewardesses access to these jobs however, NWA hired five male purser-applicants without ever posting notices of the vacancies.¹⁸ In 1970, after three years of ostensibly open admission purser status, NWA had 137 male cabin attendants all as pursers and 1,747 female cabin attendants all but one as stewardesses.¹⁹

The sole female purser at that time was Mary P. Laffey, who bid for a purser vacancy in 1967, after nine years' service as a stewardess.²⁰ Although that purser position was scheduled to be filled in November, 1967, processing of her application was delayed assertedly for the reason that NWA needed to administer new tests to purser applicants.²¹ These tests had never previously been used in selecting pursers, and during the interim between Ms. Laffey's application and her appointment NWA hired two male pursers without benefit of any tests.²² Finally, in June, 1968, Ms. Laffey became a purser, but was placed on the bottom rung of the purser-salary schedule and received less than her income as a senior stewardess.²³B. Stewardess and Purser Duties

On this appeal, NWA does not challenge holdings by the District Court that Title VII was violated by NWA's refusal to hire female pursers.²⁴ Rather, the appeal focuses primarily on whether the payment of unequal salaries to stewardesses and pursers, while occupying positions as such, implicates Title VII and the Equal Pay Act. The purser wage scale ranges from 20 to 55 percent higher than salaries paid to stewardesses of equivalent seniority.²⁵ The Equal Pay Act²⁶ forbids this pay differential unless greater skill, effort or responsibility is required to perform purser duties.²⁷ Title VII²⁸ likewise proscribes inferior sex-based compensation plans for women and, additionally, extends its protection to ban conditions of employment imposed discriminatorily upon women employees.²⁹

(1) Flight Assignments

In gauging whether NWA's pursers and stewardesses performed equal work, the District Court analyzed in great detail NWA's flight operations and its usage of the three different categories of cabin attendants. NWA flies diverse itineraries, which affect the type of personnel assigned to the flight, and which are categorized by particular terminology. In brief, "pure domestic commercial flights" are regularly-scheduled commercial flights which begin and end in the United States, and do not continue to the Orient.³⁰ Other commercial flights originate in one city in the United States, fly to an intermediate destination in the United States, and then on to the Orient; and the intra-United States portions of such trips are known as "domestic segments of international flights".³¹ "Transpacific commercial flights" are regularly-scheduled flights between Anchorage, Seattle, Honolulu and Tokyo; while "commercial interport flights" are regularly scheduled flights between Tokyo and other Asian cities.³² "Military air charters" are flights contracted with the United States Government to provide regularly-scheduled military air charter service.³³

Pure domestic commercial flights are, with some exceptions,³⁴ served exclusively by stewardesses and flight service attendants.³⁵ Pursers are ordinarily utilized on interport flights, transpacific commercial flights, domestic segments of international flights, and on all types of charters, military or otherwise, including pure domestic flights.³⁶ Since 1967, the company has also maintained a crew of stewardesses with proficiency in one or more foreign languages, who are assigned to certain international flights.³⁷

NWA schedules a different cabin-attendant crew on each flight segment; one crew will fly the domestic segment, another will take over for the transpacific link, and still a third is used on the interport portion.³⁸ Pursers and stewardesses bid separately, according to seniority, for monthly schedules.³⁹

(2) Overall Evaluation

Probing beneath the different titles, bidding schedules and salaries, the District Court made extensive factual findings comparing the work actually done by pursers and stewardesses, and held it to be essentially equal when considered as a whole.⁴⁰ For example, pursers are assigned to the first-class section of the aircraft, which has a smaller passenger load per cabin attendant and a correspondingly more leisurely work pace as compared with the chores inherited by stewardesses assigned to the tourist-class section.⁴¹ The hourly work load also tends to be greater on the "short hop" domestic schedules than on the longer international flights.⁴²

Duties performed do not differ significantly in nature as between pursers and stewardesses. All must check cabins before departure, greet and seat passengers, prepare for take-off, and provide in-flight food, beverage and general services.⁴³ All must complete required documentation, maintain cabin cleanliness, see that passengers comply with regulations and deplane passengers.⁴⁴ The premier responsibility of any cabin attendant is to insure the safety of passengers during an emergency, and cabin attendants all must possess a thorough knowledge of emergency equipment and procedures on all aircraft.⁴⁵ All attendants also must be knowledgeable in first aid techniques and must be able to handle the myriad of medical problems that arise in flight.⁴⁶ Food service varies greatly between flights, but pursers engage in no duties that are not also performed on the same or another flight by stewardesses.⁴⁷ Another important duty building goodwill between NWA and its passengers depends on the poise, tact, friendliness, good judgment and adaptability of every cabin attendant, male or female.⁴⁸

(3) Domestic and International Flights

The District Court found that when pursers are scheduled on pure domestic flights, their duties are identical to those of stewardesses functioning as "senior cabin attendants" the most senior purser, or the most senior stewardess on flights with no purser.⁴⁹ A substantial percentage of NWA's overall utilization of pursers is on pure domestic flights and domestic segments of international flights.⁵⁰ Similarly, a substantial percentage of the company's use of pursers is their assignment to military air charter flights.⁵¹ Many pursers fly flights of these types exclusively for months or years at a time.⁵²

Although, as NWA argues, after January, 1971, pursers as a group have spent more nights away from home than do stewardesses, the District Court found that these longer trips "do not constitute substantially dissimilar working conditions from those of other cabin attendants":⁵³

More consecutive days away from home also means more consecutive days at home during the month. The preferences of cabin attendants in this regard are highly subjective some prefer one long trip a month, while others prefer shorter trips; . . . . Because ground time is not counted toward flight time, purser schedules (encompassing longer flights) entail fewer actual hours of work . . . .⁵⁴

(4) Documentation Tasks

With respect to documentation responsibilities, the District Court found that pursers and stewardesses have different, but comparable, duties.⁵⁵ Stewardesses alone sell liquor, and are alone required to complete inventory and sales records, and beverage usage reports.⁵⁶ On flights carrying tax-free liquor, customs inventory forms must be completed both by stewardesses and pursers,⁵⁷ and all cabin attendants are subject to discipline for error.⁵⁸ On all flights, the senior cabin attendant and the senior in tourist the senior stewardess in the tourist class must make appropriate entries in the log book,⁵⁹ and also prepare an in-flight-service report, seating charts, accident reports and other diverse documents.⁶⁰

Pursers are responsible for administering international quarantine procedures for passengers, crew and cargo.⁶¹ As the requirements vary from port to port, pursers must keep their knowledge current in order to comply with applicable regulations.⁶² These duties, however, are not required on all flights to which pursers are assigned, such as on pure domestic flights on which pursers perform no documentation duties, and on certain domestic segments on which such purser duties are minimal.⁶³ To boot, pursers are instructed to carry out their international documentation responsibilities at times when no significant passenger service is required, and other cabin attendants perform all other necessary services during those times.⁶⁴ The District Court found that "the documentary duties described which are . . . assigned only to pursers involved no greater skill, effort or responsibility than . . . the stewardess job."⁶⁵

(5) Stewardess and Purser Responsibilities

The District Court also examined another general, more intangible, duty advanced by NWA as a factor rendering the purser job different in kind from the stewardess position. The company's cabin service manual states that the senior purser on a flight will always be considered the senior cabin attendant and as such must coordinate the activities of the other attendants, and is to be held "responsible and accountable" for the proper rendering of service on that flight.⁶⁶ But the manual further provides that if no purser is scheduled, the most senior stewardess will serve as senior flight attendant and will similarly be charged with coordination of cabin service, although she is accountable only for the conduct of service in the section of the aircraft in which she works, responsibility for the remainder being placed on the senior attendant in the other section of the aircraft.⁶⁷

Senior cabin attendants, be they purser or stewardess, have a number of supervisory duties. These include monitoring and, where necessary, correcting the work of other cabin attendants; determining the times of meals and movie showings; shifting cabin attendants from section to section to balance workloads; and giving pre-departure briefings on emergency equipment and procedures.⁶⁸ On large planes, even if a purser in the first-class section is designated the senior cabin attendant, the senior in tourist shoulders these same burdens in her section of the aircraft overseeing the great majority of passengers and cabin attendants.⁶⁹ Stewardess and pursers alike are subject to disciplinary action if they fail to carry out their "supervisory responsibilities."⁷⁰

There is, however, no merit system maintained to reward those who "supervise" better than others; all pursers and all stewardesses are on uniform, separate wage scales, regardless of whether or how well an individual performs.⁷¹

NWA asserts that it hired, trained and promoted male pursers in the belief that they would exercise leadership and be "responsible and accountable for the entire cabin service staff," whereas stewardesses functioning as senior cabin attendants on particular flights would be responsible for coordination of cabin service on the entire flight but would be "accountable" only for the manner of service in their assigned sections of the aircraft.⁷² The District Court found that, in practice, this distinction between levels of responsibility and accountability is illusory:

Only in the purser's formal relationship with the Company does his accountability differ from the non-purser senior cabin attendant and that difference is derived from status rather than as a function of the job. . . .⁷³

The court found, moreover, that the senior cabin attendant's duties are not substantially greater than the ordinary cabin attendant's function:

. . . Cabin service attendants are employed to serve and protect Company passengers. The "supervisory" functions of senior cabin attendants whether purser or stewardess are less important than, and require no greater skill, effort or responsibility, than the other functions assigned to all cabin attendants."⁷⁴

Careful evaluation of the facts comprehensively found led the District Court to conclude that NWA had discriminated against women cabin attendants on the basis of sex, in violation of Title VII and the Equal Pay Act, by compensating stewardesses and pursers unequally for equal work on "jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions."⁷⁵ More specifically, the court found that NWA had discriminated in "willful violation"⁷⁶ of the Equal Pay Act⁷⁷ (a) by paying female stewardesses lower salaries and pensions than male pursers; (b) by providing female cabin attendants less expensive and less desirable layover accommodations than male cabin attendants; (c) by providing to male but not to female cabin attendants a uniform-cleaning allowance; and (d) "by paying Mary P. Laffey a lower salary as a purser than it pays to male pursers with equivalent length of cabin attendant service."⁷⁸ All of these same actions were held by the District Court also to be violations of Title VII⁷⁹ and the court further held that Title VII violations arose out of other forms of company discrimination, inter alia, (a) in filling purser vacancies; (b) in denying to stewardesses who became pursers the same seniority rights and pay given male flight service attendants similarly promoted; (c) in changing procedural requirements for becoming a purser so as to deter female applicants, even after the 1967 agreement;⁸⁰ (d) in erecting a "chain of command" on flights under which all male cabin attendants, regardless of seniority or classification, were superior to all females; and (e) in imposing on women alone a ban on eyeglasses, prescribed luggage, and weight and height restrictions.⁸¹

On this appeal, NWA challenges the District Court's central ruling that disparate compensation for equal work violates Title VII additionally to the Equal Pay Act.⁸² It attacks also the court's holding that stewardesses and pursers are entitled to equal pay,⁸³ and the corollary finding that stewardesses who became pursers were improperly denied credit for their stewardess seniority on the purser seniority list.⁸⁴ The company also disputes the court's conclusion that Title VII was violated by its policies regarding cleaning allowances and layover accommodations.⁸⁵ Lastly, it objects to the remedial measure adopted by the court to cure the conceded violation as to weight restrictions.⁸⁶ These contentions, in turn, we now examine.

By the Equal Pay Act, adopted in 1963 as an addition⁸⁷ to the Fair Labor Standards Act of 1938,⁸⁸ Congress ordained:

No employer having employees subject to any provisions of this section⁸⁹ shall discriminate . . . 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, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .⁹⁰

By Title VII, Congress has also decreed, with exceptions not immediately relevant, that

(i)t shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.⁹¹

It is by these standards that objections to the substantive features of the District Court's judgment are to be gauged on this appeal.

NWA argues that the two statutes, read in pari materia, do not authorize monetary relief premised upon both legislative schemes for the same act of paying disparate wages. It is said that while the Equal Pay Act permits a statutory class action to secure equal pay for equal work by employees of different sexes,⁹² Title VII's guaranty of nondiscriminatory "compensation" applies only to such minority groups as are not covered by the Equal Pay Act.

NWA further contends that the District Court was inconsistent in finding transgressions of both statutes. The argument in this connection may be summarized briefly. If the purser and stewardess jobs are "equal," and thus support the court's holding of an Equal Pay Act violation, the company's refusal to permit women to become pursers does not deprive them of advancement opportunities because the jobs are equal and thus there can be no encroachment upon Title VII. Conversely, if the purser job is superior, there is no infringement of the Equal Pay Act although access to that position has unlawfully been denied to women under Title VII. NWA does not challenge the court's finding that Title VII was dishonored by the exclusion of female employees from the purser position, but the company does contest the conclusion that the comparability of that position and the stewardess position brings the salary differential between pursers and stewardesses into collision with the Equal Pay Act.

We reject these approaches. The District Court's finding that NWA's purser and stewardess jobs are essentially equal in duties and responsibilities is not logically inconsistent with the court's conclusions that NWA impinged on Title VII by blocking the entry of women into the purser category. Although, as the District Court determined, the two jobs require equal "skill, effort, and responsibility" so as to command equivalent salaries under the Equal Pay Act, any statutorily-unexempted sex-based barrier to obtaining a particular job is forbidden by Title VII. Among the options withheld by Title VII from an employer are those which "limit . . . or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities . . . because of such individual's . . . sex . . . ."⁹³ Notwithstanding, NWA classified its cabin attendants more prominently as all-female stewardesses and all-male pursers, and barred women applicants from the ranks of the latter though capable through existing employment and accrued experience with NWA to meet all of its purser-criteria save sex. That plainly was outlawed by Title VII as a sex-founded deprivation of employment opportunities, not the least of which were the superior emoluments which NWA bestowed on the purser position.⁹⁴

Nor do we doubt that the same set of facts may form the basis for redress under both Title VII and the Equal Pay Act if the requirements of each are separately satisfied and the claimant does not reap overlapping relief for the same wrong. Unless foreclosed by the statutory language or history, nothing to rob aggrieved parties of the freedom to select among multiple remedies for separate though concurrent statutory violations is apparent.

Title VII rights are independent of the rights created by other statutes, and where remedies coincide the claimant should be allowed to utilize whichever avenue of relief is desired.⁹⁵ This would seem to be the clearer for claimants under Title VII which, as the Supreme Court held in Alexander v. Gardner-Denver,⁹⁶ was intended to "supplement, rather than supplant, existing laws . . . relating to employment."⁹⁷ The Court has also noted that the legislative history of Title VII "manifests a congressional intent to allow an individual to pursue independently his rights under Title VII and other applicable state and federal statutes."⁹⁸ During the pre-enactment debates, Congress rejected a proposed amendment which would have made Title VII the exclusive remedy for the unlawful employment practices it covers, and thereby evinced a congressional purpose to leave open other modes of relief available to victims of discriminatory employment practices.⁹⁹

Although Title VII reaches farther than the Equal Pay Act to protect groups other than those sex-based classes and to proscribe discrimination in many facets of employment additional to compensation, nowhere have we encountered an indication that Title VII was intended either to supplant or be supplanted by the Equal Pay Act in the relatively small area in which the two are congruent. On the contrary, we are satisfied that the provisions of both acts should be read in pari materia, and neither should be interpreted in a manner that would undermine the other.¹⁰⁰ In Orr v. Frank R. MacNeill & Son, Inc.,¹⁰¹ the Fifth Circuit declared that "(t)he sex discrimination provision of Title VII of the Civil Rights Act of 1964 must be construed in harmony with the Equal Pay Act of 1963."¹⁰² We agree, and we now so hold.

Moreover, the language of Title VII itself explicitly declares that it is unlawful for an employer to offer an employee discriminatory "compensation . . . because of such individual's . . . sex."¹⁰³ The legislative history of Title VII yields no hint that the guaranty of nondiscriminatory compensation was extended only to minority groups not embraced within the Equal Pay Act. Indeed, Title VII refers specifically to the Equal Pay Act and states that a sex-predicated wage differential is immune from attack under Title VII only if it comes within one of the four enumerated exceptions to the Equal Pay Act.¹⁰⁴ This, then, focuses our inquiry once again upon whether the District Court correctly found that the employee-litigants had overcome the factors urged by NWA as proof that the stewardess and purser jobs were unequal, or whether NWA had sustained an affirmative defense under one of the Equal Pay Act's exceptions permitting limited instances of disparate pay for equal work.

We must pause further to consider a recurrent theme in NWA's attack on the District Court's findings that particular company practices are discriminatory. NWA contends that union negotiations during the discriminatory era when the practices went unchallenged should be considered compelling evidence of an understanding that the stewardess and purser positions were dissimilar and that pursers accordingly deserved higher pay. The Company implies, in essence, that complaining employees should now be estopped from challenging these practices because their union in which women are dominant agreed to the wages and conditions of employment now impugned. We are not impressed by this argument.

The judicial function called into play here is not to assess the union's assumptions, but to determine whether the jobs in question were actually equal within the contemplation of the Equal Pay Act.¹⁰⁵ The evidentiary worth of the union's actions as a reflection of its own underlying evaluation of the characteristics of the two jobs is exceedingly weak. Beyond that, the union's agreement to negotiated terms is hardly evidence of an individual member's appraisal of the skills, efforts, and responsibilities essential to performance of the jobs. Particularly is this so where, as here, the union was bound to represent pursers as well as stewardesses,¹⁰⁶ and took on that responsibility at a time when earlier company policy had already created a status quo under which pursers were more highly paid than stewardesses. Since the union's obligation thenceforth was to seek pay raises benefiting all its members, it obviously was not in a position to alter substantially the position of one constituent group at the expense of another.¹⁰⁷ And when the union did attempt to win better treatment for stewardesses, it encountered stiff resistance from NWA.¹⁰⁸ The only logical inference from this combination of circumstances is that as a matter of strategy not attributable to any belief as to the comparability of the two jobs the union chose to forego a special demand for equality for the stewardesses in order to achieve more pressing bargaining objectives.

More fundamentally, union activity cannot strip individual employees of the opportunity to seek vindication of their statutory entitlements in court. Rights established under Title VII and the Equal Pay Act are "not rights which can be bargained away either by a union, by an employer, or by both acting in concert."¹⁰⁹ It cannot be gainsaid that NWA played an instrumental role in the negotiations leading to adoption of the discriminatory wage scales,¹¹⁰ and a collective bargaining agreement perpetuating prior pay discrimination affords the employer no defense to a charge under the Equal Pay Act.¹¹¹ We hardly need to mention that if the union also contributed to the discriminatory scheme, the claimant has a cause of action against the union as well.¹¹²

As the Third Circuit has said, the Equal Pay Act

was intended as a broad charter of women's rights in the economic field. It sought to overcome the age-old belief in women's inferiority and to eliminate the depressing effects on living standards of reduced wages for female workers and the economic and social consequences which flow from it.¹¹³

And as the Supreme Court has declared,

Congress' purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry the fact that the wage structure of "many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same." S.Rep.No.176, 88th Cong., 1st Sess., 1 (1963). The solution adopted was quite simple in principle: to require that "equal work will be rewarded by equal wages." Ibid.¹¹⁴

An Equal Pay Act claimant must show that her salary was lower than that paid by the employer 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."¹¹⁵ The claimant bears the onus of demonstrating that the work unequally recompensed was "equal" within the meaning of the Act.¹¹⁶ Once this has been done, the claimant will prevail unless the employer asserts as an affirmative defense that the wage differential is justified under one of the four exceptions enumerated in the Act "(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex."¹¹⁷ If one or more of these defenses is invoked, the employer bears the burden of proving that his policies fall within an exempted area.¹¹⁸ This interpretation of the procedural mechanics of the Equal Pay Act comports with the construction of other provisions of the Fair Labor Standards Act, of which the Equal Pay Act is a part, by which statutory exceptions and exemptions are considered matters of affirmative defense to be proven by the employer.¹¹⁹

One of the more frequent controversies aroused by the Equal Pay Act has involved litigants' attempts to demonstrate that jobs with different titles and descriptions are in reality equal in their calls upon the jobholders. The contest often necessitates an assessment of the significance of differences in job demands advanced by the employer to show that the jobs are not equal. For "(it) is now well settled that jobs need not be identical in every respect before the Equal Pay Act is applicable";¹²⁰ the phrase "equal work" does not mean that the jobs must be identical, but merely that they must be "substantially equal."¹²¹ A wage differential is justified only if it compensates for an appreciable variation in skill, effort or responsibility between otherwise comparable job work activities.¹²²

The Department of Labor has promulgated an extensive series of regulations¹²³ to guide the "application of the equal pay standard, (which) is not dependent on job classifications or titles but depends rather on actual job requirements and performance. . . ."¹²⁴ One regulation states:

Congress did not intend that inconsequential differences in job content would be a valid excuse for payment of a lower wage to an employee of one sex than to an employee of the opposite sex if the two are performing equal work on essentially the same job in the same establishment.¹²⁵

Another points out that "(i)nsubstantial or minor differences in the degree or amount of skill, or effort, or responsibility required for the performance of jobs will not render the equal pay standard inapplicable."¹²⁶

These regulations are entitled to "great deference" by the courts in applying the Equal Pay Act to given factual situations.¹²⁷ Courts have consistently held that differences in the duties respectively assigned male and female employees must be "evaluated as part of the entire job."¹²⁸ Thus, if in the aggregate the jobs require substantially similar skills, efforts and responsibilities, the work will be adjudged equal despite minor variations.¹²⁹

When there is a disparity between salaries paid men and women for similar positions bearing different titles such as pursers and stewardesses the courts have scrutinized the evidence to discern whether the salary differential is justified by heterogeneous duties.¹³⁰ Another regulation of the Department of Labor states in relevant part,

(i)n determining whether job differences are so substantial as to make jobs unequal, it is pertinent to inquire whether and to what extent significance is given to such differences in setting the wage levels for such jobs. Such an inquiry may . . . disclose that apparent differences between jobs have not been recognized as relevant for wage purposes. . . .¹³¹

An employer cannot justify a pay differential by mere assumptions on career-orientation, the duration or probable length of working time, or a supposed respect for male authority and leadership.¹³² Moreover, "training programs which appear to be available only to employees of one sex will . . . be carefully examined to determine whether such programs are, in fact, bona fide."¹³³

An employer must show a consistent pattern of performance of additional duties in order to demonstrate that added duties are genuinely the motivating factor for the substantially higher pay. It is not sufficient that an increased workload might hypothetically have commanded a higher salary if it is not in fact the basis for a significantly greater wage. The employer may not fabricate an after-the-fact rationalization for a sex-based pay difference. "(T)he semblance of (a) valid job classification system may not be allowed to mask the existence of wage discrimination based on sex."¹³⁴

Often, evidence superficially purporting to justify greater pay as compensation for added work is found upon close examination to have inconsistencies which render its evidentiary value weaker. Where, for example, all male employees receive greater pay but only some perform the extra tasks allegedly justifying that pay, a reasonable inference is that maleness not the added chores is the basis for the higher wage. This is particularly true if the duties are of peripheral importance and the increase in pay is substantial.¹³⁵ Moreover, if some women without added compensation render the same extra performance that purportedly justified the pay differential favoring men, the inference becomes even stronger that the duties are irrelevant to the wage setting.¹³⁶ Similar evidence of discriminatory wage patterns is to be found where women are paid only for the amount of time actually spent on the extra work, but men are uniformly paid at the higher rate regardless of whether or not they are doing the work.¹³⁷ Additionally the Fourth Circuit has found corroborative evidence that higher pay is not related to extra duties when "qualified female employees are not given the opportunity to do the extra work."¹³⁸ The conclusion to be drawn, when any of these inconsistent patterns exists, is that

(d)espite claims to the contrary, the extra tasks were found to be makeweights. This left sex which in this context refers to the availability of women at lower wages than men as the one discernible reason for the wage differential. That, however, is precisely the criterion for setting wages that the Act prohibits.¹³⁹

Applying these principles to the instant case, we perceive no error in the District Court's conclusion that the alleged differences in occupational duties proffered by NWA to justify the higher wage paid to pursers do not demonstrate that the stewardess and purser jobs are disparate. The court found that there is a uniform pay-scale for pursers which exceeds the pay-scale for stewardesses; and that these contrasting schemes are uncorrelated with pursers' and stewardesses' respective employment burdens. Pursers flying exclusively on domestic routes with no international documentation obligations are compensated evenly with pursers on international flights,¹⁴⁰ despite the company's insistence that the onus of international flying is one of the explanations of the greater purser salary. To be sure, stewardesses who staff international flights do receive a foreign-flying supplement, but pursers' pay remains 20 to 35 percent larger than that of stewardesses of comparable seniority engaging solely in international travel.¹⁴¹

Pursers consistently assigned to flights on which they do not function as the senior cabin attendant receive the same salary as those flying constantly in that capacity,¹⁴² while stewardesses rendering like service derive no supplemental income.¹⁴³ A greater mantle of supervisory responsibility supposedly inherent in the position of senior cabin attendant thus does not exonerate the extra compensation awarded pursers. In fact, stewardesses' supervisory labors may exceed those of pursers. The more junior cabin attendants who need more supervision are relegated by the seniority flight-bidding system to the tourist-class section of the least desirable domestic flights, and the probability is that a stewardess acting as senior cabin attendant or senior-in-tourist will be charged with training as well as normal supervision.¹⁴⁴ Pursers, possessing the bidding power to obtain the more popular flights, are positioned in the first-class section with the more senior stewardesses, who require little or no supervision.¹⁴⁵ The District Court further found that "a substantial percentage of the Company's overall utilization of pursers consisted of their assignment . . . exclusively, for months or years at a time,"¹⁴⁶ to flights on which their functions are "identical"¹⁴⁷ to or "less demanding"¹⁴⁸ than stewardesses' tasks.

In sum, stewardesses are confined to the same lower salaries, whether or not flying as the senior cabin attendant, regardless of how taxing the service on their flights may be, and irrespective of the performance of documentation work. Pursers, at all times and under all conditions, received substantially superior salaries.¹⁴⁹ This evidence leads convincingly to the conclusion that the contrast in pay is a consequence of the historical willingness of women to accept inferior financial rewards for equivalent work precisely the outmoded practice which the Equal Pay Act sought to eradicate.¹⁵⁰

Nor can NWA reasonably contend that it gives pursers higher salaries because, as a group, they discharge extra duties more frequently than stewardesses, and thus for accounting convenience are recompensed equally. As the District Court found, the company "maintains records which enable it to determine what flight a given cabin attendant has flown each day, the position held each day, and the time spent by that cabin attendant each day."¹⁵¹ But as the court further found,

(t)hese records enable the Company to pay cabin attendants different amounts for different portions of their monthly service. (Flight service attendants) temporarily filling pursers vacancies are paid the purser rate only while flying as pursers. Stewardesses flying international receive the "foreign flying" supplement only for the hours spent on the international flight. Permanently assigned pursers receive the purser rate . . . whether or not they are filling the purser position on the flight and irrespective of the kind of flight, domestic, foreign or interport. Except for the "foreign flying supplement" all stewardesses of a given longevity receive the same salary, irrespective of the nature of the flights or the position occupied on the flight.¹⁵²

The records would facilitate the ascertainment of differential salaries for dissimilar portions of the monthly service if in fact the activities purportedly justifying the larger salary were really the reason for the added compensation.

It is not legally appropriate to accord stewardesses salary increments only when they serve as the senior cabin attendant. We have pointed to the inconsistencies between occupational tasks and rewards to underscore our conviction that the District Court properly concluded that any greater duties demanded of pursers is not the foundation for their higher pay.¹⁵³ In no way does this detract from the court's finding that the senior-cabin-attendant function was a mission that did not alter the basic equality of all cabin attendant jobs:

The "supervisory" functions of senior cabin attendants whether purser or stewardess are less important than, and require no greater skill, effort or responsibility, than the other functions assigned to all cabin attendants.¹⁵⁴

We cannot say that this finding is clearly erroneous, and it follows that all cabin attendants perform equal work and are legally entitled to places on equal salary scales. Although the senior cabin attendant is "responsible" for the cabin crew during the flight, the Secretary of Labor's regulations define job responsibility in terms of the degree of employee accountability for job performance.¹⁵⁵ At the trial of this case, witnesses testified that both pursers and stewardesses are disciplined substantially less for unsatisfactory performance as senior cabin attendant than for subpar passenger service. And although the company imposes rigorous sanctions on cabin attendants charged with misconduct affecting customer relations, its records disclose only one instance of disciplinary action against a purser for failure to adequately monitor the work of other cabin attendants. This strongly suggests that the provision of high quality service to passengers exacted of all cabin attendants is the most important undertaking for which the company compensates pursers and stewardesses. The increased responsibility borne by the more senior personnel in both classifications is rewarded by larger salaries given to those on the upper rungs of the pay ladder, and this will continue with a combined stewardess-purser salary scale.

In a similar case, the Fifth Circuit reversed a finding that a salary differential between male and female bank tellers was justified by the men's supposedly greater managerial role in "supervising the cashing of checks, helping the other tellers balance out, and generally acting as 'trouble-shooter' when unusual or difficult problems arose."¹⁵⁶ The court found it "doubtful at best that such small, insignificant additional duties can ever serve as a justification for the differential evidenced in the Bank's wage figures."¹⁵⁷ We affirm the District Court's findings that NWA purser and stewardess positions are substantially equal within the intent of the Equal Pay Act and demand financial response at the purser-level of recompense.¹⁵⁸

The Equal Pay Act's ban on sex-based discrimination in pay is largely paralleled by Title VII's condemnation of "discriminat(ion) against any individual with respect to his compensation . . . because of such individual's . . . sex . . . ."¹⁵⁹ So it is that NWA's policy of rewarding stewardesses unequally for work equal to that of pursers, which we have just confirmed as an Equal Pay Act violation, meets a similar fate under Title VII.¹⁶⁰ The District Court so held,¹⁶¹ and its judgment directs back pay under Title VII to each shortchanged employee for any period that it is nonrecoverable under the Equal Pay Act.¹⁶² Remedies aside,¹⁶³ we face no further Equal Pay Act problem as to stewardesses' salaries.

NWA does, however, protest rulings by the District Court that other company policies tread on stewardesses' statutory rights.¹⁶⁴ The areas of controversy are marked by the stewardesses' complaints of discrimination in the provision of layover accommodations for cabin attendants, in company allowances for maintenance of their uniforms, and in weight restrictions formally imposed only on women. While the first two complaints might be addressed independently under the Equal Pay Act on a theory of wage discrimination,¹⁶⁵ or perhaps even under Title VII as a matter of discrimination in compensation,¹⁶⁶ we may acceptably approach the three primarily on the basis of Title VII's ban on "discriminat(ion) against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual's . . . sex . . .."¹⁶⁷

Until recently, only female stewardesses were subject to the company's weight restrictions, which if exceeded resulted in suspension or discharge.¹⁶⁸ Stewardesses in times past at least were also required to share rooms with each other during flight layovers, while male cabin attendants were routinely reimbursed for single rooms.¹⁶⁹ In addition, as the District Court found, the company's allowances for the cleaning and replacement of uniforms differ to the detriment of female cabin attendants.¹⁷⁰ These policies, which have operated disadvantageously upon employees who are women, clearly deprived stewardesses of rights secured by Title VII. NWA does not contend that the practices do not constitute discriminatory conditions of employment, but defends its conduct as inadvertent and unintentional. We find this defense unavailing. The legislative history of Title VII indicates that the Act requires only a general intent to discriminate,¹⁷¹ and prohibits any discriminatory practice which was not merely accidental.¹⁷² If an employer intends to promulgate the later found to be improper policy that is, "the defendant meant to do what he did"¹⁷³ there is no burden to show additional discriminatory motivation in order to recover under Title VII.¹⁷⁴

The company counters the charge of discrimination in the provision of layover accommodations by insisting that male cabin attendants were instructed to share rooms but that they departed from company policy by booking single rooms.¹⁷⁵ The District Court nonetheless upheld the charge¹⁷⁶and its ruling is amply sustained. NWA has consistently paid for single accommodations for male employees.¹⁷⁷ That more than sufficiently manifests an attitude condoning the alleged breach of company policy.

NWA has also seen fit to differentiate its stipends for maintenance of uniforms. Men were given a cleaning allowance, while women received a replacement allowance. On evidence comparing the frequency of uniform replacement with the cost of keeping a supply of clean uniforms, the District Court found the policy discriminatory. We discern nothing in the record to disturb this finding.

Prior to suit, the company applied a different maximum height restriction to male and female employees. That differential was likewise held to be discriminatory.¹⁷⁸ Additionally to reinstatement and backpay for stewardesses suspended or terminated for failure to satisfy the weight restrictions,¹⁷⁹ the District Court enjoined NWA from weighing stewardesses, maintaining weight scales, conditioning employment upon an agreement to meet these standards, and punishing any female employee because of weight "unless (it) is such as to render her physically incapable of performing the duties of the job."¹⁸⁰ We affirm the court's resolve to accord reinstatement and backpay to those who suffered from the application of the weight requirements.¹⁸¹ NWA, however, appeals that portion of the order enjoining the imposition of any weight standard upon any stewardess unless weight prevents discharge of the responsibilities of the employment. NWA has promulgated new weight restrictions for both male and female employees, to operate in a nondiscriminatory fashion. NWA insists that these standards affect everyone equally, bringing it into compliance with Title VII, and that may well be so. If the present regulations, applied objectively and in good faith, pass muster under Title VII, the company will become entitled to modification of this aspect of the injunction by the District Court. The Company must, however, be prepared to demonstrate that the current restrictions are not a veiled means of retaliation for the institution of this action.¹⁸²

We recognize that Title VII discourages the use of even nondiscriminatory but newly-promulgated employee-selection criteria where there is a history of discriminatory treatment of some employees who would continue to be hurt by the new criteria. In Griggs v. Duke Power Company,¹⁸³ the Supreme Court forbade the application of a fair and even-handed standard to black employees who had been barred from formerly "white" jobs when the selection criteria had applied only to blacks:

Under the Act, practices, procedures or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to "freeze" the status quo of prior discriminatory employment practices.¹⁸⁴

Similarly, the Second Circuit has affirmed an order requiring admission of incumbent black employees to apprenticeship programs if they were "at least as qualified as the least qualified white" previously accepted, despite the subsequent adoption of a more stringent, nondiscriminatory admission standard.¹⁸⁵ And the Equal Employment Opportunity Commission provides by regulation that

no new test or other employee selection standard can be imposed upon a class of individuals protected by title VII who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.¹⁸⁶

Applied to the instant case, this principle protects the right of suspended or discharged stewardesses to be reinstated, to be awarded backpay and to have their personnel files rectified for the period of discipline for failure to comply with a restriction which was not imposed on pursers.¹⁸⁷ At that juncture, the position of these stewardesses will be equalized with that of all pursers who were employed during the same period regardless of weight. The stewardesses discriminated against in the past are thus afforded an opportunity to regain their jobs and, on a parity with the most overweight purser employed by NWA, meet the requirements in the future. As long as the company henceforth extends equal treatment in this regard to all pursers and stewardesses in its employ including all pursers hired in the past, who now must measure up to the new restrictions or be discharged we cannot say that its desire for trimness in those representing it in public is discriminatory or unreasonable. We affirm, then, the District Court's conclusion that the inferior pay scales and working conditions to which stewardesses have been subjected entitles them to relief under Title VII and the Equal Pay Act.

The District Court's judgment is devoted in substantial measure to remediation of violations found, under either the Equal Pay Act or Title VII, with respect to sex-based differentials in salaries, pensions, layover lodgings furnished and uniform-maintenance allowances.¹⁸⁸ In each category, the judgment effects an equalization upward¹⁸⁹ by mandating for female employees the same treatment that NWA had theretofore afforded male employees,¹⁹⁰ and enjoins sex discrimination in any significant aspect of employment of cabin attendants¹⁹¹ in the future.¹⁹² The judgment also awards backpay¹⁹³ under the Equal Pay Act to each "Equal Pay Act plaintiff"¹⁹⁴ for the three-year period preceding the filing of that plaintiff's written consent to joinder in the suit as a claimant therefore;¹⁹⁵ it similarly grants backpay under Title VII to each "Title VII plaintiff"¹⁹⁶ for the period commencing two years prior to the filing of the first charge with the Equal Employment Opportunity Commission,¹⁹⁷ terminating, however, for each employee who is also an Equal Pay Act plaintiff at the beginning of her Equal Pay Act recovery period.¹⁹⁸ NWA complains that some of these provisions go too far, and affected employees insist that the relief granted on these subjects does not extend far enough.

A. Period of Backpay Recovery Under the Equal Pay Act

Congress has imposed time limits upon the initiation of employee suits under the Equal Pay Act for either backpay or liquidated damages. The relevant statute specifies that any such action

may be commenced within two years after the cause of action accrued, and . . . shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued . . . .¹⁹⁹

The District Court found NWA's Equal Pay Act violation "willfull" within the meaning of this provision²⁰⁰ and awarded the Equal Pay Act plaintiffs²⁰¹ backpay²⁰² for three-year periods preceding the filing of timely written consents.²⁰³ NWA contends that retrospection of its backpay liability for periods exceeding two years is an erroneous application of the statute. The core argument, as we understand, is that the statutory word "willfull" connotes an unwholesome state of mind said to be absent in this case, particularly since in an independent ruling the District Court denied liquidated damages upon a finding that NWA's sex-discriminatory policies were pursued in good faith.²⁰⁴(1) The Standard For Determining Willfulness

The suit-limitation provision does not undertake to define "willfull" on its own, nor have we encountered elsewhere in companion legislation any definition seemingly referable to that provision.²⁰⁵ Courts wrestling with its facial ambiguity have usually subscribed to one or the other of two divergent views. Some, notably in the Fifth Circuit, read "willfull" as requiring nothing more than knowledge of the possible applicability of the governing statute to the conduct eventually held to be legally wanting.²⁰⁶ "Stated most simply," says the Court of Appeals for that circuit, "we think the test should be: Did the employer know the (statute) was in the picture."²⁰⁷ Other courts take a differently worded approach:²⁰⁸ "(W)illful," declares one, "retains its traditional meaning that violations of the Act must be deliberate, voluntary and intentional."²⁰⁹ NWA urges upon us still another meaning: that "willfull" requires bad purpose as an element of the violation.

Under some statutes, particularly those directed at conduct involving moral turpitude, an act is "willfull" only if done malevolently, wickedly or criminally.²¹⁰ Under other types of statutes, it suffices that the act was performed consciously and voluntarily, rather than inadvertently or accidentally.²¹¹ Betwixt these two formulations, "willfull" has been given various other meanings,²¹² although shades of difference ofttimes diminish when the probe extends beneath the surface.²¹³ Because of its inherent instability, only the most careful consideration of the term "willfull" in its legislative context can provide satisfactory assurance that eventually it will take on its proper cast.²¹⁴ And so it does here.

The suit-limitation provision in its original form was part of the congressional response to an "existing emergency"²¹⁵ three decades ago. In 1946, the Supreme Court had held that employees were entitled to portal-to-portal pay under the Fair Labor Standards Act.²¹⁶ In 1947, Congress declared that allowance of claims therefor would create "wholly unexpected liabilities, immense in amount and retroactive in operation,"²¹⁷ and enacted legislation to deal with the situation.²¹⁸ A limitation period of two years for all claims²¹⁹ was designed specifically to eliminate differences arising from "the varying and extended periods of time for which, under the laws of the several States, potential retroactive liability may be imposed upon employers . . . ."²²⁰ Its aim thus was to establish for employee recoveries a nationally uniform cutoff point, whether for purposeful or innocent transgressions of the Act.

The limitation period continued at two years until enactment of the Fair Labor Standards Amendments of 1966.²²¹ During the process leading to that legislation, an effort was made to enlarge the limitation period to three years for any type of violation, for reasons expressed by the then Secretary of Labor:

The lengthening of the statute of limitations to three years will allow workers more time to familiarize themselves with their legal right to back wages and thus improve enforcement of the Act. The short statute of limitations gives competitive advantage to violators and penalizes many workers in the collection of wages legally due. The Federal Criminal Statute runs for three years or more. The existing two-year period under (the Fair Labor Standards Act) is also shorter than that allowed creditors of employees to collect money owed for food and rent bills.²²²

As the bill emerged from committee, however, the limitation provision appeared in its current form.²²³ The period had been lengthened to three years for a "willfull violation," but for others it remained at two.²²⁴ We have not uncovered any clear-cut statement in the legislative history as to why the extension to three years was thus encumbered. There is ample room, however, for an informed belief that, with the amendments' broad expansion of the Act's coverage²²⁵ and resultant concern over the effect on the small businessman,²²⁶ an unqualified increase of the limitation period would bear too heavily upon an inevitably larger group of excusably inadvertent violators.²²⁷

Be that as it may, the important consideration is the absence from the legislative history of any visible movement to impart criminal-law precepts of moral culpability into the statutory scheme as a condition to accountability for a civil wrong. There is nothing to suggest that the congressional effort either in 1947 or 1966 was the exaction of a penalty, to which moral culpability would be highly relevant. On the contrary, the implication is almost irresistible that the objective consistently was the erection of a bulwark to extensive liability, and to economic hardships that would follow. Because in 1947 Congress feared a crisis from enforcement of an unexpected multitude of newly-arising claims, and because in 1966 the coverage of the Act was being greatly widened to encompass a host of enterprises never before subjected, it seems evident that on each occasion Congress wished to insure that those who were unwittingly intercepted by the Act were not impacted with a three-year statute of limitations. These circumstances undergird the unlikelihood that "willfull," in this role, was intended to exact bad purpose on the employer's part rather than simply a lesser factor reducing the employer's predicament to something less than a wholly unanticipated prospect of late-found liability as a precondition to an extra year's recovery.

It seems also significant that the requirement of willfulness is not one which must be met in order that there be liability, but rather is one to be satisfied before there can be expanded liability. The nonwillful character of a violation of the Act does not defeat recovery, although it does confine the period therefor to two years, and a willful violation lengthens the period merely by another year. An employer out of compliance, but not willfully so, is spared the burden of recompense beyond a period of two years; an employer willfully out of compliance, despite his willfulness is spared beyond a period of three years. The relatively small difference between the two- and three-year periods tends to question any notion that the distinguishing criterion was to be moral rather than intellectual culpability. Since a morally innocent employer is nonetheless liable for two years, one may ask why a "willful" violator's accountability is for only one year more if the term is to imply wicked purpose.

We realize, of course, that a lighter burden would subject a good many employers to the extra year of liability notwithstanding that their violations may represent little or no more than an erroneous interpretation of the statutory requirements. On the other hand, employers as a class occupy a much superior position vis-a-vis their employees to ascertain the effect of the law upon their business policies and practices. Even where the closeness of the question of the statute's applicability hampers or forestalls absolute decisional accuracy, there is no good reason for translating the employer's error into a loss of pay for the employee.

Atop all else, the Equal Pay Act, and the Fair Labor Standards Act of which the former is a part, undoubtedly are remedial statutes, as such to be liberally construed in favor of their intended beneficiaries.²²⁸ In light of this, as well as the historical backdrop against which we must view this legislation, we could not readily attribute to Congress a purpose to impose upon employee-claimants the much heavier burden sometimes, perhaps, a well-nigh impossible burden of proving an iniquitous employer state-of-mind as a prerequisite to a backpay recovery for the third year. We reject, then, a definition of "willful" in the suit-limitation provision which would demand proof that the employer entertained a bad purpose or an evil intent. At the same time, we need not go so far as to hold that a violation is willful merely because from the employer's viewpoint the statute was in the picture.²²⁹ Nor need we undertake to precisely define "willful" for cases closer than the one at bar.²³⁰ We think that at the very least the employer's noncompliance is "willful" when he is cognizant of an appreciable possibility that he may be subject to the statutory requirements and fails to take steps reasonably calculated to resolve the doubt.²³¹ We think, too, that the same conclusion follows when an equally aware employer consciously and voluntarily charts a course which turns out to be wrong.²³² Beyond these holdings, we need not venture now.

(2) The Decision On NWA

The District Court expressly found NWA's multifold violations of the Equal Pay Act to be "willful".²³³ The court explained:

The Equal Pay Act violation was willful in that (NWA) was fully aware of the Equal Pay Act and adopted a deliberate and knowing course of conduct despite its awareness. The Court does not find an intentional, bad faith, attempt to evade the law. The judgment of (NWA) that its conduct would not be found to be in violation of the Equal Pay Act has been found to be in error. The conduct of (NWA) in the exercise of that judgment was willful.²³⁴

This finding is fully binding upon us unless "clearly erroneous."²³⁵ NWA does not say that the finding lacks evidentiary support in the record, nor could it. An official of NWA testified by deposition that since 1963 the company was aware of the Equal Pay Act, was generally familiar with its provisions, and had internally reviewed it for its possible application to the company.²³⁶ NWA understood the Act's central provision that male and female employees cannot be paid differently for performing substantially the same work, and considered its own policies respecting cabin attendants in that light.²³⁷ The company concluded that the Act was inapplicable because it felt that the purser and stewardess jobs were substantially different.²³⁸ Even after the filing of charges with the Equal Employment Opportunity Commission and the subsequent filing of this lawsuit, NWA continued to adhere to that position.²³⁹ No written memorandum on the subject was prepared or received by the company, although it may have been provided oral advisories by a trade association.²⁴⁰ The witness had no recollection that NWA ever conferred with outside counsel on the subject, and he did not specifically mention any sort of legal advice at all.²⁴¹ We have not been referred to, nor have we discovered, any other evidence bearing on the subject. We think the witness' testimony amply sustains the District Court's finding that NWA "was fully aware of the Equal Pay Act and adopted a deliberate and knowing course of conduct despite its awareness."²⁴²

NWA asserts, however, that the facts found are legally insufficient to enable the conclusion that the violation was "willful." It argues for an interpretation of the term which would require bad purpose or evil intent,²⁴³ which the District Court's findings disclaimed.²⁴⁴ We have declined acceptance of that definition of willfulness,²⁴⁵ and in our view of the most that willfulness involves²⁴⁶ we are satisfied that the necessary elements are present here. NWA not only knew of the Equal Pay Act and its content but also correctly understood its prohibition on different salary levels for men and women performing substantially similar work. With little or nothing beyond internal consideration by laymen even after the present legal challenge got under way the company consciously though erroneously concluded that its treatment of pursers and stewardesses was unaffected by the Act. We deem that sufficient to comprise willfulness; in the District Court's words, "(t)he conduct of the Company in the exercise of that judgment was willful."²⁴⁷ For reasons already extensively articulated,²⁴⁸ we agree.

It is also contended by NWA that the District Court was logically inconsistent in finding that the Equal Pay Act violation occurred in good faith²⁴⁹ and in also finding that the violation was willful. This claim is of a piece with NWA's insistence that willfulness is inextricably tied to bad purpose.²⁵⁰ We have said that it is not;²⁵¹ we have equated willfulness, rather, with conduct which is conscious and voluntary in character.²⁵² It follows that a practice may be deliberate, and thus willful, notwithstanding motivation that is honest. Even if NWA pursued in good faith the policies which the District Court held to be unlawful, its conduct was willful within the meaning of the limitation provision.

To each affected employee, an employer infringing the Equal Pay Act is statutorily liable, in consequence of its interrelationship with the Fair Labor Standards Act,²⁵³ not only for unpaid compensation but also for "an additional equal amount as liquidated damages."²⁵⁴ The predicate for the latter imposition is the reality that "(t)he retention of a workman's pay may well result in damages too obscure and difficult of proof for estimate other than by liquidated damages."²⁵⁵ Originally mandatory in its provision,²⁵⁶ the statutory provision on liquidated damages was amended in 1947 to confer discretion on the courts to deny otherwise awardable liquidated damages in whole or part when satisfied that the employer acted or omitted action "in good faith and that he had reasonable grounds for believing that his act or omission was not a violation . . . ."²⁵⁷ In the instant case, the District Court so found:

(NWA) did have reasonable grounds for belief that it was not violating the Equal Pay Act. While this Court has found as fact that the jobs of purser and stewardess are in fact equal, it was not unreasonable for the Company to have believed otherwise. Five factors support this conclusion: The traditional practice of the Company in treating the positions as unequal, the general industry practice to the same effect, the acquiescence of the stewardess' bargaining representative in this arrangement, the absence of any grievances or even suggestions from stewardesses to the contrary prior to the present controversy, and the absence of any clear legal precedent or guideline precisely in point.²⁵⁸

The good faith of which the Act speaks is "an honest intention to ascertain what the . . . Act requires and to act in accordance with it."²⁵⁹ That necessitates a subjective inquiry.²⁶⁰ The statutory call for reasonable grounds for a belief in compliance with the Act imposes a requirement additional to good faith,²⁶¹ and one that involves an objective standard.²⁶² Any assessment of an employer's good faith or grounds for his belief in the legal propriety of his conduct is necessarily a finding of fact, to be disturbed on appeal only if clearly erroneous.²⁶³ In the case at bar, however, it is clear enough that the District Court relied on factors not supportive of its conclusion. Accordingly, we must remand for redetermination of the issue.

The current version of the liquidated damages provision was enacted in response to the Supreme Court's lament in Overnight Motor Transportat