A 'No' From Now

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Sunday, November 22, 1987; 12:00 AM

MOST OF THE organizations that opposed the nomination of Judge Robert Bork to the Supreme Court are still in the early stages of reviewing the life and work of the current nominee, Judge Anthony Kennedy. But one important national group has already taken a stand against him. The National Organization for Women announced on Thursday that it would oppose Judge Kennedy's confirmation because he has belonged to an all-male club in California (he has recently resigned) and because of the 400 opinions he has written. NOW leaders disagree with two.

The first case was a test of the Navy's right to discharge homosexuals. The second was of broader interest to NOW's members, since it involved the concept of comparable worth. Women's rights groups have in recent years sought to eliminate pay disparities between work usually done by females and that done by males. The law clearly prohibits discrimination in equal jobs, but at issue in the case Judge Kennedy decided were not equal jobs but different ones that a consultant had found to be of equal worth.

A district judge had issued an order requiring the state of Washington to pay workers according to a comparable worth scheme that had been devised to eliminate pay differences between such jobs. It would have cost the state between $800 million and $1 billion. Judge Kennedy, writing for the appellate court, overruled, holding that while it might very well be desirable to adjust salaries to eliminate perceived inequities, it was not required by law. The state of Washington, he wrote, may enact a comparable worth plan if it chooses to do so, but federal civil rights laws do not obligate the state to correct an economic inequity it did not create. Absent a showing of a discriminatory motive, the law does not permit federal courts to interfere in a market-based system for the compensation of state employees.

Judge Kennedy was right. The law requires equal pay for equal work, not comparable work. But that doesn't mean that unfair conditions cannot be, and are not being, corrected. After the decision in the Washington case, negotiations began between the American Federation of State, County and Municipal Employees and the state, with the result that tens of millions of dollars are now being spent to correct sex-based pay inequities. Similar results were soon thereafter achieved in Chicago, Los Angeles, Iowa, Minnesota, Wisconsin, New York and Connecticut. The bargaining table, not the courtroom, is the place where wage questions of this kind should be settled.

The Senate Judiciary Committee will begin hearings on Judge Kennedy's nomination on Dec. 14. Representatives of NOW will surely testify and other groups may as well. But if his decision in AFSCME v. State of Washington is the worst problem he has to face, he should have smooth sailing.


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